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Reservists' job rights.

The Veterans' Reemployment Rights Act protects most employees from job discrimination based on membership in a reserve component of the Armed Forces. In addition, the Act requires employers to approve employees' requests for leave to perform active reserve duty and allows returning reservists to be restored to their previous positions.

Nearly a decade ago, the Baltimore Police Department established a policy of allowing no more than 100 of its officers to join active military reserve units. Under this policy, a waiting list was created for officers seeking to join the reserves after the 100-officer limit had been reached. Officers who were reservists at the time they were hired were not subject to the policy.

Eric Kolkborst, a Baltimore police officer whose request to engage in reserve training was denied because he was not one of the 100 officers whose reserve membership had been approved, challenged the department's policy by filing suit under the Veterans' Reemployment Rights Act. In addition to arguing that the policy itself was improper and that the department should not have threatened to fire him if he did not quit the active reserves, Kolkhorst argued that his request for training should not have been denied.

In Kolkhorst v. Tilghman," the Court of Appeals for the Fourth Circuit agreed with Kolkhorst and invalidated the police department's policy. In the court's view, the policy conflicted with the plain language of the Veterans' Reemployment Rights Act, which provides that employees like Kolkhorst "shall not be denied hiring, retention in employment, or any promotion or other incident or advantage of employment because of any [reserve] obligation."12 The court held that the department also had acted improperly when it denied Kolkhorst's request for permission to engage in reserve training. An employer faced with a request like Kolkhorst's, it held, may not condition its approval on the reasonableness of the reservist's request." Instead, it must comply with the strict language in the statute, which states that a reservist "shall upon request be granted a leave of absence ... for the period required to perform active duty for training ... in the Armed Forces."31

The latter ruling conflicts with the approach taken on the same issue by at least three courts of appeal S.31 In each of these cases, the court held that an employer need only grant requests that are reasonable.36 Because the decision in Kolkhorst creates a conflict with these decisions, the Supreme Court eventually may review this issue.


The duty to bargain collectively is shared by the employer and the union. It requires each "to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party." 29 U.S.C. 158 (d) (1988). This duty does not oblige either party to agree to any particular proposal. Id.

The failure to bargain collectively is considered an unfair labor practice and can result in the National Labor Relations Board issuing an order requiring the offending party to Stop the practice and take any other action that effectuates the policies of the National Labor Relations Act. 29 U.S.C. 158 (a) (5) (1988) (the employer must bargain collectively); 29 U.S.C. 158(b)(3) (1988) (the union must bargain collectively); 29 U.S.C. 160(c) (1988) (listing the remedial powers of the National Labor Relations Board).

See NLRB v. Windham Community Memorial Hosp., 577 F.2d 805 (2d Cir. 1978); and Buckley Broadcasting Corp.(Station KKHI), 284 N.L.R.B. No. 113, 125 L.R.R.M. (BNA) 1281 (July 27, 1987), enforced, 891 F.2d 230 (9th Cir. 1989).

One significant exception to this rule is that, for a limited period of time, the employer may not withdraw union recognition even if it can prove that the union is not supported by a majority of bargaining unit employees. This is because the union enjoys an irrebuttable presumption of majority support for 1 year after the National Labor Relations Board certifies the union as the employees' exclusive bargaining representative, or for a "reasonable period of time" after the employer voluntarily recognizes the union. See Brooks v. N.L.R.B 348 U.S. 96 (1954); and Sierra Dev. Co., 231 N.L.R.B. No. 5,95 L.R.R.M. 1597 (July 29, 1977), enforced, 604 F.2d 606 (9th Cir. 1979).

110 S. Ct. 1542 (1990).

Replacement workers outnumbered union members throughout the strike, even counting the five crossover employees as union supporters.

Curtin Matheson Scientific, Inc., 287 N.L.R.B. No. 35,127 L.R.R.M. (BNA) 1114 (Dec. 16, 1987).

U.S.C. 1101 (1988).

U.S.C. 362 (1988) (most proceedings against the debtor to establish or collect a debt are automatically stayed when the bankruptcy petition is filed); id. 1141 certain debts are discharged upon confirmation of a reorganization plan); id. 365 (certain executory contracts and unexpired leases may be rejected); id. 1113 (collective bargaining agreements may be rejected if certain conditions are met); and id. 1107 (the debtor may perform most functions and duties of the trustee in bankruptcy, including operating the debtor's business under 11 U.S.C. 1108 (1988).

465 U.S. 513 (1984).

Id. at 526.

The National Labor Relations Act permits collective bargaining agreements to be terminated or modified only if a four-step process is followed: The party seeking the changes must give notice of its proposal to the other party to the contract, must offer to negotiate a new contract containing the proposed changes, must notify the Federal Mediation and Conciliation Service of the change, and must abide by the terms of the existing collective bargaining agreement for at least 60 days after the notice was given. 29 U.S.C. 158(d) (1988).

Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub. L. No. 98-353, 541, 98 Stat. 333, 390-91 (1984).

U.S.C. 1113(b) (1) (A) (1988).

11 U.S.C. 1113(c) (1)-(c) (3) (1988).

899 F.2d 887 (10th Cir. 1990).

The debtor had sought to modify the collective bargaining agreement so as to allow the debtor to hire nonunion permanent replacement workers, pay them less than the union rate, and not require them to join the union. The union claimed that such a modification would amount to an unfair labor practice under 29 U.S.C. 158(a) (3) (1988), and therefore, the union could not be required to discuss it.

See Wheeling-Pittsburgh Steel Corp. v. United Steelworkers, 791 F.2d 1074 (3d Cir. 1986).

Truck Drivers Local 807 v. Carey Transp., Inc., 816 F.2d 82, 90 (2d Cir. 1987).

" Mile Hi at 893. Judge Stephanie Seymour agreed with the result in the case, but for different reasons. Id. at 894 (Judge Seymour, concurring). The use of the word "necessary" twice in section I 1 13, she said, suggests that Congress intended to emphasize that word and did not intend for courts to give a broad interpretation of when a proposal is necessary to the company's reorganization. In her view, although the debtor need not show that the modification is absolutely necessary, it must prove that the reorganization will probably fail in short order if the modification is not accepted. Id. at 897.

110 S. Ct. 1384 (1990).

29 U.S.C. 1801 (1988).

To be liable for actual damages under the Migrant and Seasonal Agricultural Worker Protection Act, an employer must have intentionally violated the law. 29 U.S.C. SS 1854(c) (1) (1988). Alternatively, an employer that commits intentional violations may be liable for statutory damages of up to $500 per plaintiff per violation. Id.

Under Florida's Workers' Compensation Law, an employer must compensate its injured employees "in respect of disability or death ... if the disability or death results from an injury arising out of or in the course of employment." Fla. Stat. Ann. 440.09 (West 1981). Instead of requiring the injured worker to prove his or her actual damages, this law contains formulas and schedules for determining the amount of compensation that must be paid. Id. 440.15. For example, a worker who is totally and permanently disabled as a result of an on-the-job injury must be paid two-thirds of his or her average weekly wages, regardless of actual damages. Id. 440.15(i)(a).

Fla. Stat. 440.11 (West 1981 & Supp. 1990).

29 U.S.C. 1871 (1988). This provision also states that compliance with the Migrant and Seasonal Agricultural Worker Protection Act shall not excuse any person from compliance with appropriate State law and regulation." Id.

An agricultural employer must obtain an insurance policy or bond to insure against liability "for damages arising from the ownership, operation, or the causing to be operated, of any vehicle used to transport any migrant or seasonal agricultural worker." 29 U.S.C. 1841 (b) (1) (C) (1988). This requirement, however, is waived if the employer provides coverage under State workers' compensation laws to employees who are being transported. 29 U.S.C. 1841 (c) (1988).

S. Ct. at 1387.

The employer also argued that it had been misled by the insurance waiver provision. It claimed that the provision had caused it to believe that it ran no risk of incurring Federal liability for actual damages because it was not required to insure against such a possibility. Justice Marshall rejected this "trap for the unwary" argument, holding that the insurance waiver provision operates no differently from other mandatory insurance schemes, which often set minimum coverage levels without limiting liability. I 10 S. Ct. at 1388.

Id. at 1390. In evaluating the competing arguments on this issue, the Court declined to grant deference to a Department of Labor regulation allowing States to limit remedies to those contained in State workers' compensation laws. See 29 CFR 500.122(b) (1989). The Federal statute, the Court held, did not grant authority to the Labor Department to regulate the judiciary's power. Thus, the agency's opinion, as expressed in the regulation, was found not to be entitled to deference.

38 U.S.C. 2021(b) (3) (1982 & Supp. v 1987).

Id. 2024(d) (1982).

897 F.2d 1282 (4th Cir. 1990).

38 U.S.C. 2021(b) (3) (1982 & Supp. v 1987).

The court indicated that even if the reasonableness of Kolkhorst's request were a factor that could be considered, the department should have granted the request. 897 F.2d at 1286. Not only was the limited leave request presented in a timely manner, the court held, but the department, by basing its decision solely on its own improper policy, had failed to consider the request's reasonableness.

38 U.S.C. 2024(d) (1982).

See Eidukonis v. Southeastern Pa. Transp. Auth., 873 F.2d 688 (3d Cir. 1989); Gulf States Paper Corp. v. Ingram, 811 F.2d 1464 (11th Cir. 1987); and Lee v. City of Pensacola, 634 F.2d 886 (5th Cir. 1981).

Although the Lee, Eidukonis, and Ingram courts agreed that an employer could evaluate the reasonableness of the reservist's request, they differed on what factors should be taken into account. The court in Lee indicated that the training period requested "must be reasonable both in the context of the reservist's military obligation and the requirements of the employer." 634 F.2d at 888. The third circuit, in Eidukonis, agreed with this formulation. 873 F.2d at 696. The court in Ingram, however, attached less importance to the burden on the employer. 811 F.2d at 1469.

'On-the-job' experience the best teacher Research shows that in the U.S. roughly half of the differences in earnings can be attributed to learning in school and on the job. Accidents of geography, career choices, and the selection of an employer account for the other half. Earnings are a function of the skills people have and the choices they make regarding how and where they use those skills. Poor basic skills limit individuals' choices and their potential for earning.

The processes of developing basic skills in school and applying them on the job complement each other. Basic academic skills expand and grow when used on the job. People use what they learned on one job to leverage a better job. Compared with all other variables that affect earnings, learning on the job has the most powerful effect. Available data tends to support the fact that on-the-job learning especially formal learning an leverage earnings by as much as 30 percent.

-ANTHONY P. CARNEVALE, LELIA J. GAINER, ANN S. MELTZER Workplace Basics: The Skills Employers Want (Alexandria, VA, The American Society for Training and Development, 1989), p. 5.
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Title Annotation:Significant decisions in labor cases
Author:Hukill, Craig
Publication:Monthly Labor Review
Date:Jul 1, 1990
Previous Article:Migrant labor.
Next Article:Major agreements expiring next month.

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