Trans World Airlines, Inc. v. Hardison – Oral Argument – March 30, 1977

Media for Trans World Airlines, Inc. v. Hardison

Audio Transcription for Opinion Announcement – June 16, 1977 in Trans World Airlines, Inc. v. Hardison

del

Warren E. Burger:

We will hear arguments next in 1126 and 1385, Trans World Airlines and the related case.

Mr. Feldmiller, I think you may proceed.

George E. Feldmiller:

Thank you Mr. Chief Justice and may it please the Court.

This case, which is here on certiorari to the Eighth Circuit, involves two general issues: First, the extent of the protection under the Establishment Clause and so far as whether a person can in effect to be taxed or forced to expand money or to be deprived of work coverage or non-discriminatory work rules so that another may practice his religion.

Second, the proper application of two provisions of the 1964 Civil Rights Act in the context of Rule 52(a)’s fairly erroneous requirement.

The first provision under the Civil Rights Act is the 1972 Congressional Amendment, Section 701(j) and its forerunner the 1967 EEOC guideline both of which define religion and require an employer to reasonably accommodate all aspects of his employee’s religious observance and practice, as well as beliefs and I emphasize all beliefs, unless that employer can demonstrate an undue hardship.

The second provision of the 1964 Civil Rights Act, the Section 703(h) and that declares that it shall not be an unlawful employment practice for an employer to apply different terms of employment pursuant to a bona fide seniority or merit system provided that such differences are not the result of an intention to discriminate and incidentally there is no evidence in the record of any intention to discriminate.

After a full blown evidentiary hearing in which seven witnesses testified, the District Court dismissed Mr. Hardison’s religious discrimination claim and entered its findings of fact that TWA had reasonably accommodated Hardison and that any further accommodation would have constituted an undue hardship.

Judge Oliver found that many of the stipulated facts were irrelevant and he referenced all of his findings to the transcript testimony of the live witnesses and he stated that he was impressed with the men, who are on the line handling the problem.

The Eighth Circuit disagreed and decreed that Judge Oliver’s findings and facts were clearly erroneous.

Now, the basic facts of this matter can be succinctly and summarily stated.

Hardison was employed at TWA’s major Overhaul base in Kansas City, Missouri.

That base operates 24 hours a day, 365 days a year.

At the time he was employed in 1967, Hardison indicated that he would work shifts including weekends.

Upon his employment, he became a union member and he functioned in accordance with the bona fide seniority rights that governed all job assignments under the applicable collective bargaining agreement.

Now, thereafter in the spring of 1968, Hardison began studying the religion known as the Worldwide Church of God.

In April, he wrote his supervisor, Mr. Everett Kussman, and he stated that he wanted special time off from Friday sunset to Saturday sunset because he sincerely believed that that was the Sabbath under his new religion.

Mr. Kussman immediately initiated a meeting with Mr. Hardison to talk about this matter.

Kussman agreed to excuse time off for seven religious holidays, which Mr. Hardison had, none of which were the same as the contractual holidays under the collective bargaining agreement.

Mr. Kussman also agreed to the union seeking swaps or days off and in an attempt to find another job.

The report was made to Mr. Kussman that Mr. Hardison’s day-off requirements were too difficult to handle.

Potter Stewart:

To find another job with the same employer?

George E. Feldmiller:

Yes, with the same employer.

Warren E. Burger:

Thank you.

George E. Feldmiller:

Hardison was generally able to avoid Saturday work from April, the time he first met with Mr. Kussman, through March, 1969 or up to March, 1969.

He did in that interim worked some voluntary overtime work on his Sabbath.

Now, after a second meeting in September, 1968 between Hardison, Kussman and the union steward, Hardison was still able to avoid the Saturday work and he was fully accommodated in his religious practices because Mr. Kussman had been able to agree with the union consent that he could have his seven special holidays off.

However, in December of 1968, Hardison voluntarily transferred to a different shift in a different building, which was governed by different seniority requirements and seniority list.

At that time he left to security of being half way up the ladder in seniority to position where he was second from the bottom.

When he made this transfer, he knew that he could expect some work on a Saturday in the event of a vacation problem or the employee junior to him might be ill or something of that nature.

George E. Feldmiller:

At the time, well he had no Saturday work up to March, 1969.

At that time Mr. Kussman, the TWA supervisor, noticed a schedule change have been made which would require Hardison to work starting Saturdays on March 8th.

Mr. Kussman therefore initiated a meeting with Mr. Hardison; and brought in the union steward, Mr. Tinder, to see what roles or aspects of accommodation could be made.

Mr. Kussman once again agreed to waive the seniority obligations upon TWA under the collective bargaining agreement, but the union steward did not believe that that could be done and refused to do so.

Mr. Hardison offered to work six days a week and that was acceptable to TWA but it was unacceptable to the union because of the 40-hour work rule that any work over 40 hours was subject to the overtime bidding rights of all other employees.

The aspect of whether or not Hardison may have been able to work four days a week, may well have been discussed at this meeting.

Mr. Kussman did not believe that he could allow Mr. Hardison to have a four day work week.

Because he needed people to work in TWA’s continuous operation requirements, he was the only person scheduled to work on the job on Saturdays after March 8th.

This was a job that had to be filled in order to respond to any emergencies which might occur at the overhaul base.

Mr. Hardison was not satisfied with the results of the March 8, 1969 meeting but he did not file a grievance although he knew he could do so.

John Paul Stevens:

Mr. Feldmiller, before he leave that meeting, was their discussion of that meeting of the possible swap?

George E. Feldmiller:

Yes, there was a discussion of general swaps; the change of jobs, perhaps in going back to his earlier section.

John Paul Stevens:

Would you explain to me why the swap was not feasible and the reason I asked that question is apparently it must have been assumed when the company indicated willingness to consider giving him his special holidays that they probably betrayed why could never have been swapped yet.

George E. Feldmiller:

Well, the basic difference between the holiday situation, the seven holiday situations and the swap on the Saturday is governed by the realities, I think, of the situation.

For example, TWA had a contractual obligation that it would work a minimal overtime or a minimal weekend force at its overhaul base on the weekends.

Also, the people with the high seniority just preferred not to work on Saturdays.

So we had a very limited number of people that were realistically available for TWA at this time.

John Paul Stevens:

What the work there — I think Judge Webster said there are about 200 people who could have done the work.

George E. Feldmiller:

There may have been more than 200 people who could have done the work but none of those people were available within the terms of the collective bargaining agreement because the collective bargaining agreement did not provide for just mere a swaps between employees.

John Paul Stevens:

Did it prohibit swaps?

George E. Feldmiller:

Yes sir, every time Mr. Justice Stevens, there is an opening in the job that opening had to be subjected to the bidding rights of all other employees.

John Paul Stevens:

Well, I understand but why could not — supposing he had said, I have got a friend that will fill in for me and then the answer would be well, he cannot unless he open the job for bidding, why could not that have been done?

George E. Feldmiller:

TWA was willing to do that and the union was willing to do that but apparently the union did not believe that the bidding would have been available or would have rendered Hardison any relief.

There were no jobs available within the seniority framework at that time.

John Paul Stevens:

What happens in the company?

Say, somebody comes and say, we got to go to the dentist next Friday, can I trade with somebody, is there anyway to handle problem like that people just never switched at TWA?

George E. Feldmiller:

Seniority in this situation, this distinguishes the case for many of the other cases that have been decided, under the terms of this seniority agreement….

John Paul Stevens:

What provision in the collective bargaining agreement forecloses the swap?

George E. Feldmiller:

That would be the provision that all jobs, all shift assignments are governed by the seniority rights of all employees that would appear…

John Paul Stevens:

If I understand all that means is, to find a candidate for a swap, before it can be effectuated, you have got to say, is anybody with more seniority want to do it.

John Paul Stevens:

Why does that prohibit trying to do it?

George E. Feldmiller:

Well, I do not think, I do not think that that was not tried in the sense that TWA authorize that to be done; it is the union steward that does this.

The union steward maintains the seniority list and he is the one that goes through the list, makes the context to fill the jobs.

Our hands were really tied in going out to the employees; if we did, we would be subject to the union understandably saying that perhaps you are out there trying to coerce volunteers, when in fact we would not be doing that.

It could lead to very substantial problems with the union relationship.

We were very willing for that to be done.

We agreed that it could be done and the union did not believe that it was proper in this case to do.

I do not know their exact reasons.

Mr. Ratner might be able to explicate further on those.

At any event when Judge Oliver saw the witnesses and when he rendered his decision, he took into account the fact that TWA had to consider the rights of other employees.

The problems of employee morale and grievance problems and problems in the event that TWA went further without union consent, he also took into account that all religious beliefs it would be burdensome upon the employer to have to take into account all religious beliefs of all employees.

He thought that seniority was an important right and that under Section 703(h) if that was not controlling that at least indicated the congressional intent to protect bona fide seniority rights and in fact Judge Oliver found that it was coincidental that the seniority provision in this case acted to in anyway hamper Mr. Hardison’s ability to work.

William J. Brennan, Jr.:

Mr. Feldmiller getting back again to the factual framework of this case.

You told us that this place of employment operates 365 days a year that of course include Sundays.

As we both know most people observe the Sabbath on Sunday.

George E. Feldmiller:

Yes sir.

William J. Brennan, Jr.:

What provision has the company and or the union made, if any, to accommodate the religious views of those who observed the Sabbath on Sunday?

George E. Feldmiller:

The people who had observed the Sabbath on Sunday, Mr. Justice Brennan, would have been treated exactly like Mr. Hardison was.

It would have been extremely difficult I think in our society that if the people who do worship on Sunday wanted off, it would be very difficult for a company like TWA that has to operate 24 hours a day to serve the public and fulfill its functions to continue to operate.

William J. Brennan, Jr.:

Does the record show anything on this subject?

George E. Feldmiller:

No, it does not except…

William J. Brennan, Jr.:

Of accommodation of those employees who observe the Sabbath on Sunday?

George E. Feldmiller:

No, it does not.

William J. Brennan, Jr.:

No?

George E. Feldmiller:

Except the fact that they would have been treated exactly the same.

That is not in the record, but they would have been treated exactly the same as Mr. Hardison.

William J. Brennan, Jr.:

But the record just contains nothing on this.

George E. Feldmiller:

No.

We believe that the Court of Appeals violated Rule 52(a) and try the matter de novo and we think that this is an important consideration in this case because the Court of Appeals really misconstrued the record we believe and assuming and relegating TWA the role of a Paunches Pilot.

We think that the record is clear that Mr. Kussman did his very best as an individual and as a person not just because it was mandated by law but he did his best to go in there and work it out with Mr. Hardison, at the same time protect his relationship with the union that he has to work with on a day in, day out basis.

George E. Feldmiller:

We also think that the Court of Appeals made some serious factual mistakes for one thing it said it reviewed the full record.

In fact, it did not do that because the full record was no filed at the Court of Appeals.

The full record now is on file at this Court.

The only record that the Court of Appeals had was the trial appendix and while that is a full appendix and relatively full, they still did not have the entire record to review in purporting to reverse Judge Oliver’s findings as clearly erroneous.

John Paul Stevens:

But did it have all of the evidence and all of the stipulation?

George E. Feldmiller:

Yes, did not have all of the evidence; it had all of the stipulations many of which Judge Oliver found to be irrelevant and it had a great deal of the testimony.

It was a very thorough…

John Paul Stevens:

Everything that the parties thought the Court needed to pass on the case.

George E. Feldmiller:

There were some things according to the Federal Rules that were not placed in the record that were important but…

John Paul Stevens:

That nobody had filed them up to Court of Appeals.

George E. Feldmiller:

They did not call upon the Court of Appeals nor the parties, called upon the District Court to apparently send off the rest of the record.

We were under the impression that the entire record were submitted and we are so informed by the District Court and the Court of Appeals Clerk, but when I got the record for this Court, the Court of Appeals called me and said, we are sorry Mr. Feldmiller, we made an earlier mistake and we did not have the entire record.

Warren E. Burger:

Well, resume there at 1 o’clock.

George E. Feldmiller:

Thank you.

Mr. Ratner, you may proceed whenever you are ready.

Mozart G. Ratner:

Mr. Chief Justice, may it please the Court.

I should first like to answer Mr. Justice Stevens’ question concerning why the least jobs could not have been put up for bid.

They could not have been put up for bid because neither party to the potential swap asked his job be put up for bid, neither was willing to vacate his job.

Hardison testify at Pages 83 and 84 of the Appendix that he knew all about the procedure, it was probably possible for him to get into that midnight shift where he would not have to work on his Sabbath by bidding.

But that job was not open because the fellow on the midnight shift had not indicated any willingness whatever to leave it, in fact, Hardison said he had no idea whether the fellow be even willing to swap.

There had been no application by that man to leave his job, nor had there been one by Hardison and that is what triggers the bidding is the job vacancy, the record is clear that there was no job vacancy; one could have been created, had either one of these two employees chosen to create one by telling the company they want to leave it, neither have not been.

John Paul Stevens:

But Mr. Ratner did not that testimony related to more or less permanent to exchange of jobs as oppose to I cannot work this Friday as there is somebody I can trade with.

Mozart G. Ratner:

The difference is between,(a) I cannot work this Friday which is treated as an emergency situation and which sometimes has worked out and the recurrent or permanent situation which is clear must be handled by the bidding procedure.

There is testimony that occasionally through the union relief committee things were worked out but there is no testimony that at any of those situations, the seniority rights of any intervening employee would have impaired.

In short, even a swap, so far as this record shows, could not have been accomplished if that swap had been over the objection of some other employee would have preferred to work that shift.

Now, here you had as many as 200 potential applicants for this job and it was obviously impossible for a continued period, here it was a minimal of three weeks and basically it was far more than that because Hardison was a permanent congruent presumably to this religion, he would constantly in any job that he had where he remained a senior man, come into the situations where he would be unwilling to perform to meet the job requirements of that job, which was attendance of work on the scheduled work day.

The company treated it until as far as the record shows non-discriminatorily treat, as completely different situation on one day swap, the holidays, they were willing to do, they did.

Nobody’s seniority rights were impaired.

John Paul Stevens:

The record tell us how they are going to solve the holiday problem.

Mozart G. Ratner:

The record does not tell us how they were going to solve the problem except that they did solve the holiday problem well, in a sense it tells us.

Mozart G. Ratner:

It tells us that he was going to have to be available to work on the Christian holidays.

He might or might not have had a chance to do or been obliged to come in and work those holidays depending on whether the people senior to him in seniority wanted the chance to work those holidays.

Thurgood Marshall:

I thought it was volunteer situation.

Mozart G. Ratner:

I am sorry.

No.

Thurgood Marshall:

If somebody voluntarily gave up or was persuaded to.

Mozart G. Ratner:

Well they were persuaded or induced by extra payments to come in and work on a holiday, he would have gotten extra pay for working on a holiday.

Thurgood Marshall:

What would happen if, two men one Saturday, one on Sunday and they agree that anytime comes up we will switch.

Mozart G. Ratner:

No that cannot be done, you are violating the seniority rights of all the people with seniority over both of the swap.

John Paul Stevens:

Let me just follow up with one other question, if someone senior objected to that then it would be to swap with somebody else would.

Mozart G. Ratner:

No it would not be.

John Paul Stevens:

He says, well I get the toothache and has to got to the dentist it is got to be an emergency.

Mozart G. Ratner:

No the fellow who has got toothache and has to go to the dentist is probably going to get sick leave.

John Paul Stevens:

His counsin comes in from out of town that is once in a long time, it has to see in that one day and trade with somebody, you just cannot do that.

Mozart G. Ratner:

Your Honor the one day temporary situation is handled intelligently, sensibly, regularly in this planet was handled for Hardison.

John Paul Stevens:

He would not comply with the rules.

Mozart G. Ratner:

Well a three week period of time is more than the company properly felt could be treated as an emergency under the collective bargaining agreement, they were right.

William H. Rehnquist:

Well do you think Mr. Ratner that the statute that the Court of Appeals relied on here, permits no adjustment whatever of rights under the collective bargaining agreement.

Mozart G. Ratner:

What do you mean requires, obliteration of rights under a collective bargaining.

William H. Rehnquist:

But your response to the questions by Justice Stevens, Justice Marshall has been primarily, it seems to me that there were just now way to do this under the collective bargaining agreement.

Mozart G. Ratner:

Right.

William H. Rehnquist:

As if that were a total and definitive answer in this context.

Mozart G. Ratner:

It is a total and definitive answer in this context only to the questions that I understood Mr. Justice Stevens to be asking, which was, was there a way to accommodate this man by swapping shifts which would not have violated the collective bargaining agreement to which my answer is no.

William H. Rehnquist:

You say then the Congress could not by law provide that and an a employer had to adjust for a person who was a member of a religion which prevented him from working on Saturday, but unless it also require such adjustment for someone whose son was playing football or basketball and could not work on Saturday for the same day.

Mozart G. Ratner:

I say that Your Honor, yes that is why our position, I say that if we come to that, if the Court has to come to that, I see no escape from holding that such a statute violates the Establishments Clause.

John Paul Stevens:

Let me just finish the thought and then I will leave the point.

Mozart G. Ratner:

Yes Your Honor, that is what I am telling.

Warren E. Burger:

Well It cannot be done if it conflicts with the seniority rights of someone.

Mozart G. Ratner:

That is standards that of someone —

Warren E. Burger:

If someone who complaints about it?

Mozart G. Ratner:

Well, the union is there to see to it that the seniority rights of nobody in the plant are taken away from them whether they complaint about it or not, they are to be given the opportunity to exercise their rights under that agreement, if that union does not do that, it is not performing its duty of fair representation.

William H. Rehnquist:

But that is like Robinson-Patman Act conflicts with the Sherman Act, we have that both in the antitrust section of the Code, they both been enacted by Congress even if they do conflict.

Mozart G. Ratner:

Well, it is possible to read the statute, this statute that is conflicting with the whole rest of Title VII as compelling discrimination on the face of retention of 703(j) which says you shall not prefer any employees because of their among other things religion, you shall not give them a preference, of course Congress could have left that, it could have left 703 unchanged, it could have left as it did 701(a) unchanged with thoughts only about discrimination.

Warren E. Burger:

Mr. Pickett.

William F. Pickett:

Mr. Chief Justice may it please the Court.

Warren E. Burger:

If they allow Hardison on religious grounds to work four day a week, can they deny four day a week to any other employee?

William F. Pickett:

Deny a request for a four day week, the statute does not address, yes they can.

Warren E. Burger:

They deny it to others.

William F. Pickett:

Yes, that is correct.

Thurgood Marshall:

Put in another way.

William F. Pickett:

The record is absent as to that because this was the first time, this had ever came up Mr. Justice Marshall in TWA’s history at the Kansas City.

Thurgood Marshall:

Well how did they discriminate against him?

William F. Pickett:

How they discriminated against Mr. Hardison, my client?

Thurgood Marshall:

Uh-huh.

William F. Pickett:

Well, they discriminated against him in a number of ways.

Thurgood Marshall:

And what did Hardison asked for?

William F. Pickett:

Let him work his job, that he was assigned to drive a train and pick up parts and take back used parts, as long as it would not cause him to do his job for TWA and violate his Sabbath, which he had sincere beliefs that he could not violate.

Thurgood Marshall:

And who else has that right at TWA other than him?

William F. Pickett:

Any other employee this was the first one.

Thurgood Marshall:

Well how about the atheist?

William F. Pickett:

Well, the atheist likewise is statute.

Thurgood Marshall:

I guess he could take off any day, he wanted.

William F. Pickett:

No Your Honor, sincerely Atheism is also encompassed I believe in the Young decision, which does in fact cover persons who in fact have no religion.

Thurgood Marshall:

I still — thank you, you are on the point of preference, you want some…

William F. Pickett:

It is a neutral application Your Honor.

Thurgood Marshall:

How can it be neutral when he says I want something nobody else has, how is that neutral?

William F. Pickett:

He does not want something anyone else has.

Thurgood Marshall:

Well he wants Saturday off, does anybody else have Saturday off?

William F. Pickett:

If they sought…

Thurgood Marshall:

Does anybody else in this record have Saturday off?

William F. Pickett:

Those persons who are members of the seniority provisions, who in fact been through Saturday off, those persons that amorphous group that the union says with…

Thurgood Marshall:

But anybody in his category?

William F. Pickett:

He had Saturday off for…

Thurgood Marshall:

But he had seniority preference too.

William F. Pickett:

That is absolutely correct, Your Honor, Mr. Justice Marshall.

Thurgood Marshall:

And he surrendered that voluntarily.

William F. Pickett:

No he did not surrender that.

Thurgood Marshall:

He did not surrendered seniority?

William F. Pickett:

He did not surrender it, he in fact by way of application of his going to building number two found that he was in less seniority, yes.

Thurgood Marshall:

Well, didn’t he know it, before he went there?

William F. Pickett:

Yes by all means.

Thurgood Marshall:

Well, then he surrendered it, did not?

William F. Pickett:

If you want to use surrender yes, but…

Thurgood Marshall:

Well, what word do you like, I will use whatever word you want?

William F. Pickett:

Alright.

Thurgood Marshall:

You could have ignored the agreement?

William F. Pickett:

By all means Your Honor, Mr. Justice.

Thurgood Marshall:

The employer could have ignored the agreement.

William F. Pickett:

And still met the burden imposed on yet by the statute, yes.

Thurgood Marshall:

What would the union be doing?

William F. Pickett:

The union was agreeable to four days off.

Thurgood Marshall:

Was the union agreeable to waive — were the union… listen to me.

William F. Pickett:

I am Your Honor.

Thurgood Marshall:

The Union agreed that TWA could ignore its bargaining agreement, and you know that…?

William F. Pickett:

No, never did they say that.

Thurgood Marshall:

I do not think so.

William F. Pickett:

They had no objection to Mr. Hardison working four days however, TWA did have the objection.

Thurgood Marshall:

I heard what u say.

William F. Pickett:

Mr. Justice Stevens asked in his question, the union relief committee was available in this instance at the same day that this case was tried there was Mr. Libby whose wife was off because she was ill.

John Paul Stevens:

But did he ask the union relief committee to do anything?

William F. Pickett:

He did not know of the union relief committee, the record reflects Your Honor.

Warren E. Burger:

Well, it is one thing to give a person relief for an emergency on one or two occasions it is another thing to try to adjust a plant operation to no work on Saturday at anytime, is it not?

William F. Pickett:

Yes but that was, that is not the facts in this case.

Warren E. Burger:

It is a fact that they made a number of adjustments for him, did they not?

William F. Pickett:

No, absolutely not.

Warren E. Burger:

Well, then I read a different record from the one that you are talking about.

William F. Pickett:

What did TWA do?

Warren E. Burger:

Did he ask to use the grievance procedure?

William F. Pickett:

He did not file a grievance after the discharge hearing in which the union told him, all we can do is plead for leniency, Mr. Chief Justice he did not file a grievance, no.

Byron R. White:

Would you suggest that if all an employer could do to make an accommodation would be to breach the collective bargaining contract, what do you think the statute would require that and would take precedence over the contract?

William F. Pickett:

Although we do not have to reach in this case, yes I would as Franks echoes that also with the footnote.

Byron R. White:

And if the employer goes to the union to workout in accommodation, the union says no that collective bargaining contract requires something else.

William F. Pickett:

I am saying yes they must because the law directs that the employer must make a reasonable accommodation.

Byron R. White:

Now you do not think that was the case here?

William F. Pickett:

Absolutely not.

Byron R. White:

Do you think that union’s position is that it is the case here?

William F. Pickett:

No, it is not because they did not disagree with TWA.

John Paul Stevens:

Mr. Pickett, let me just ask one more question.

William F. Pickett:

Yes Mr. Justice Stevens.

John Paul Stevens:

Is it your view that the company or the union or both could have accommodated your client without imposing any addition cost on the company and without violating the collective bargaining agreement, or was one of those two things essentially?

William F. Pickett:

Just two questions.

John Paul Stevens:

What do you mean you mean overtime?

William F. Pickett:

Supervisor covering calling, can somebody stay afterwards.

John Paul Stevens:

Is it essential that there be cost assumed such as overtime supervisory covering, or one day the job not met or something like that?

William F. Pickett:

I cannot say for sure.

John Paul Stevens:

I mean in principles it is quite a different case if you assume that and if you assume the cost?

William F. Pickett:

I could not say that might occur because in your hypothetical situation early in your questions to Mr. Feldmiller, if in fact they would have posted the job then nobody might have bid on it and in fact he could have be able to work within the collective bargaining agreement and there would have been no cost to anyone.

John Paul Stevens:

Their answer to that as I understand is he did not request that.

William F. Pickett:

That is correct because it was not open, I also remember him responding to you in that regard.

John Paul Stevens:

Well then on the basis of what he did is it correct that there was not way to oblige him without either the company assuming some abnormal cost or violating the agreement, one of those two?

William F. Pickett:

That is correct.

Thurgood Marshall:

The difference is that the Sabbath comes up every week and an emergency does not.

William F. Pickett:

It was an emergency.

Thurgood Marshall:

Isn’t that the difference?

William F. Pickett:

Yes, it is an emergency from my client Mr. Justice Marshall by all means.

Thurgood Marshall:

But it was not his first Sabbath.

William F. Pickett:

Pardon.

Thurgood Marshall:

It was not his first Sabbath either.

William F. Pickett:

He never had been compelled to work.

Thurgood Marshall:

He had Sabbaths before?

William F. Pickett:

Yes he had Mr. Justice Marshall.

Thurgood Marshall:

He knew it was coming.

William F. Pickett:

No that he did — well he knew the Sabbath is coming.

Thurgood Marshall:

He did not know the Sabbath is coming?

William F. Pickett:

Yes, but he did not know that he was going to be compelled by where the collective bargaining agreement provision.

Warren E. Burger:

Could he have challenged these, raised these problems in the grievance procedure under the collective bargaining contract?

William F. Pickett:

I would imagine he most certainly could he did not know too much and he followed the unions, lead as to what they suggested regarding leniency.

William H. Rehnquist:

But he did have at oral even seven witnesses orally.

William F. Pickett:

That is correct, that is correct, absolutely.

Thurgood Marshall:

You did say TWA did nothing, who was the man that wrote the letter and said, you come in and let us talk this over?

William F. Pickett:

Mr. Kussman.

Thurgood Marshall:

He works for whom?

William F. Pickett:

TWA.

Thurgood Marshall:

Thank you.

William F. Pickett:

That was not an affirmative enough statement writing a letter in my judgment and Judge Webster.

Thurgood Marshall:

Wouldn’t you think more accurate to say TWA did not do enough than to say the TWA did nothing.

William F. Pickett:

I understand, of any substance they did nothing.

Warren E. Burger:

If a supermarket chain had a fixed policy of not hiring any Sabbatarians in a supermarket, would they be violating some federal statute?

William F. Pickett:

Yes, they would.

Warren E. Burger:

Well let us take it one more step then.

William F. Pickett:

Here in Washington, and it would be a private employer with a requisite number of employees, they would be violating, now, Section 703(j), I believe, the reasonable accommodation provisions.

Warren E. Burger:

So that if they try to have some adjustment from their own point of view to the necessities of running a supermarket store on Saturday, on Sunday, which they all do now I understand because they all operate on Saturday and Sunday, the two busiest days of the week.

William F. Pickett:

It would have to determine upon the facts of each case, what is reasonable.

Warren E. Burger:

The purpose of the supermarket is perfectly obvious that they want to have enough clerks on Saturday and Sunday, who take care of the overwhelming number of shoppers, who do their shopping on Saturday and Sunday.

William F. Pickett:

I think the federal law’s congressional dictate supersedes their sole need if that is it because the second step of course one that District Court looks at is whether or not there is an undue hardship, and one does not get to a hardship being undue, or less than that until something besides a letter requesting a meeting is in fact participated in.

Lewis F. Powell, Jr.:

One thing we think, what is your attitude, what is the employer suppose to say to the — say ten people come in and say we do not want to work on Saturday, we want to go to the football game and watch our children play, but we will work on Sunday and you let these religious practitioners off on Saturday, now let us off, what does he suppose to say them?

William F. Pickett:

Again, they are not covered by the statute, and secondly the sincerity…

Byron R. White:

I do not realize that.

William F. Pickett:

I respectfully disagreed; there was a benefit.

Byron R. White:

You do not think it is a benefit if they can get off on Saturday and see their children play?

William F. Pickett:

I thought you are referring to the religion, of course, I am getting a benefit.

Byron R. White:

Well, why is not that a benefit there I mean they are getting off on Saturday to practice their religion.

William F. Pickett:

This is basically a society in which we observe the Sabbath on Sunday and it is a neutral policy that Congress chose to in fact effect…

William H. Rehnquist:

Not neutral as between people who want to see their kids play football on Saturday and people who want to observe the Sabbath on Saturday, it is not neutral on that respect surely.

William F. Pickett:

I would concur with you, Mr. Justice Rehnquist.

Byron R. White:

Well, at least there are some people that the employer is require to laid off on Saturday and other people that he is not required to laid off on Saturday.

William F. Pickett:

For religious purposes, if in fact the Congress — the answer is yes.

Byron R. White:

The answer is yes.

William F. Pickett:

Depending on the circumstances…

Byron R. White:

Well, there is not any circumstances as I understand your position, no circumstances at all.

William F. Pickett:

If TWA had only three people who in fact could have done this particular job and in fact would have shown that it would hamper them tremendously, in that particular aspect I would say they would not have had to accommodate him because it would have been an undue hardship and in fact they would not have violated the law.

Byron R. White:

So, if it costs them a little bit, it is all right, but if it costs them a lot, it is not all right.

William F. Pickett:

There is a reasonableness test which one has to be determined by the District Court and I think Franks versus Bowman that goes at.

William H. Rehnquist:

Would you say that the District Court review and EEOC review and Court of Appeals’ review and review by this Court in this government entanglement with religion in the sense that it was used in law.

William F. Pickett:

No.

Lewis F. Powell, Jr.:

Hypothetical, let us assume that the Worldwide Church of God — and this is hypothetical.

William F. Pickett:

Taking your hypothetical aftereffects of this case, no I would not, because the law addresses itself to the purpose of employment security purging interstate commerce with those things that are impermissible in, in fact, protecting employment security, and the benefit, if any, which is incidental to the person, is to the person, not to any religious groups and he cannot be credited with what his Church may or may not say over the radio.

Lewis F. Powell, Jr.:

But if the Church membership, where I substantially augmented by the popular appeal that its members would not have to work on Saturdays.

William F. Pickett:

No, I do not.

Lewis F. Powell, Jr.:

You do not?

William F. Pickett:

Pardon.

Lewis F. Powell, Jr.:

You do not even if membership say it would increase by significant numbers, a million people who have responded to an intensive radio campaign, join our church, you will not have to work on Saturday?

William F. Pickett:

I, at that point, would say the District Court under the Rule 52 in determining the credibility and the sincerity of the individual would be able to determine that factor, which would of course kick off any reasonable accommodation if a person just joined for six months.

Warren E. Burger:

Very well Mr. Pickett.

William F. Pickett:

I appreciate the Court’s time.

Warren E. Burger:

Mr. Lewin we will start two minutes of your time for your presentation.

Nathan Lewin:

Thank you very much Mr. Chief Justice and may it please the Court.

Warren E. Burger:

But your friend, well he said that that violate the federal law.

Nathan Lewin:

I think the courts would recognize that, Your Honor that that is precisely what the undue hardship provision provides.

Thurgood Marshall:

Well Mr. Lewin we do recognize that with the bargaining agreement the employer is not free to follow the law and ignore the agreement, is he?

Nathan Lewin:

He may have trouble but if that union gives him trouble, he can take them to court because we think they cannot prevent him from following the law.

Thurgood Marshall:

I think that what the law says that whatever you can do without interfering with agreements and other things, you must do.

Nathan Lewin:

Well, Mr. Justice Marshall…

Thurgood Marshall:

Don’t you think that the agreement is a part of the reasonable?

Nathan Lewin:

An agreement is part of the reasonable sir, yes.

Thurgood Marshall:

I thought…

Nathan Lewin:

We agreed with that, but we think the union speaks here of rights as if the rights grow out to the union and the employees against the whole world, an employer could not sell the Brooklyn Bridge in his collective bargaining agreement and then have his employees or his union say, we have rights to the Brooklyn Bridge because you have put it into the agreement.

Thurgood Marshall:

Well TWA does not own it.

Nathan Lewin:

Pardon.

Thurgood Marshall:

TWA does not own the Brooklyn Bridge.

Nathan Lewin:

Well, that is exactly it and they do not own Hardison’s right to an accommodation under the federal statute.

Thurgood Marshall:

They also have an agreement with the union and they cannot ignore it.

Nathan Lewin:

We are not suggesting they ignore it but the agreement with the union…

Thurgood Marshall:

That is what I thought you were saying that the union agreement had nothing to do with that.

Nathan Lewin:

Well, we say the union agreement cannot overwrite the statute because whatever the employer can assign away and that is all that the union agreement is.

William H. Rehnquist:

I suppose that for the shop agreement it would no defense in right to work stick on a complaint by someone who choose to join the union, even though the whole shop agreement if it is signed by both union and employee.

Nathan Lewin:

Absolutely, and we submit that in the union collective bargaining agreement that said the employer may not hire female employees would not be a defense.

Warren E. Burger:

To a degree they are contracted away by the very clause in the statute relating to business necessity and reasonableness, are they not?

Nathan Lewin:

To that extent, Mr. Hardison’s right is limited, yes.

Warren E. Burger:

Therefore, it follows that the Free Exercise Clause in your position is not an absolute guarantee; it is a conditional guarantee.

Nathan Lewin:

It is conditional and it depends on an evaluation of very circumstance and we argue in our brief, I think, extensively and we submit on that brief that it is proper for Congress in order to implement the Free Exercise Clause against private parties to enact the statute such as this, to protect religion.

Warren E. Burger:

Do you have some rebuttal.

Mozart G. Ratner:

In view of the shortness of time remaining, I am going to have to rely principally on my Reply Brief, which does to suppose I think of most the contention that Your Honors have heard, but I want to make several points.

Thurgood Marshall:

Excuses me, Mr. Ratner, before you sit down, I have assumed TWA has got a computer.

Mozart G. Ratner:

Yes sir.

Warren E. Burger:

I am assuming they do.

Thurgood Marshall:

And they have it in employment office.

Mozart G. Ratner:

That I am sure it has.

Thurgood Marshall:

Couldn’t they have in the computer the number of men who would prefer to work on Sundays, rather than Saturday, the number who would prefer to work on Saturdays rather than Sunday? So all you have to do would be push a button and you will find that number.

Mozart G. Ratner:

The answer to that is Your Honor, I do not know.

Thurgood Marshall:

You do not know anything about computer?

Mozart G. Ratner:

I do not know anything about whether they could that; I do know that they probably have not asked anybody about what their preferences are.

Thurgood Marshall:

Assuming that a computer could do that.

Mozart G. Ratner:

A computer could do it, presumably.

Thurgood Marshall:

Then when they make up their job schedules, would not it be rather easy?

Mozart G. Ratner:

Well, it would be impossible without violating seniority.

Thurgood Marshall:

Well, couldn’t the computer had the seniority in that?

Mozart G. Ratner:

If they ran the posting system, the job bidding system by computer, they would run it by computer, it might be another way out of it, but it does not change the legal problem I think it changed the practice problem.

Byron R. White:

Well, Mr. Ratner I ask your colleague on the other side whether the collective bargaining contract was implicated here at all.

Mozart G. Ratner:

With two exceptions, the company could have held employees overtime paid them overtime that would not have bothered this.

Well, it would have destroyed the company, I mean it would have been a substantial burden on them.

Byron R. White:

What, the four day week thing?

Mozart G. Ratner:

Sure.

Byron R. White:

Why?

Mozart G. Ratner:

Well, it would have required them to make some kind of arrangement about paying somebody else to cover for them possibly, I do not know.

Byron R. White:

Double time, Time and a half?

Mozart G. Ratner:

Time and half, yeah.

Byron R. White:

But otherwise except for those two things you say the…

Mozart G. Ratner:

Well I am saying that those are two what are called accommodations, but as far as I know could have been made without violating the collective bargaining agreements, those involved the tax on the company and it is my submission that is just…

Byron R. White:

The position on the other side must worry you sufficiently that here you are, I mean is there position broader than that, I guess their position is that even if it did trample on the collective bargaining contract that is irrelevant.

Mozart G. Ratner:

Yeah, that is right and that is what really worries me, that is why I am here of course that is why I am here.

Harry A. Blackmun:

Mr. Ratner, I asked this only because of something in your brief, do you think that this Court in General Electric against Gilbert cut back a bit on Duke Power against Griggs? Page 17

Mozart G. Ratner:

I prefer not to answer that question.

William H. Rehnquist:

Mr. Ratner let me ask you one question if I may?

Mozart G. Ratner:

Well I think that any indication that he would like to be accommodated that he would like to have something done so that we would not have to work on the Sabbath is enough to trigger a constitutionally construed obligation under this statute for a company to see if something can be done reasonably to accommodate you.

William H. Rehnquist:

Would the reasonableness of the company’s reaction depend in part on the intensity of the belief?

Mozart G. Ratner:

The last point I made was that it would depend in part on the intensity of the belief and the nature of the practice and how important it is in the hierarchy of that religion and how important in the hierarchy of that individual’s observance of it, and I suggested Your Honor that is a very reason why the statute can not conceivably stand because that is the worst entanglement that ever was with religion.

Warren E. Burger:

Mr. Ratner there was really a simple answer to Justice Blackmun’s question that I wrote, the Chief Justice wrote to the Griggs against Duke Power and he had joined without reservation in the General Electric case.

Mozart G. Ratner:

Thank you Mr. Chief Justice I appreciate you are getting me off the spot.

Byron R. White:

Perhaps because he agreed to the cutting back provision.

Mozart G. Ratner:

Thank you.

Warren E. Burger:

Thank You gentleman.