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Supreme Court docket heavy on business. `Pro' posture intact as bench faces antitrust, labor issues

Business and labor issues make up the lion's share of cases the United States Supreme Court will begin to grapple with a week from today. Some issues -- among them antitrust, banking and zoning regulations, and labor policies -- have become perennial. Others dealing with affirmative action, commercial speech, religious accommodation in the workplace, and pregnancy leaves are emerging constitutional questions that will have a key effect on business policies.

At this point, none of the 50 or more business-related cases are of ``blockbuster'' proportions, according to Supreme Court-watchers. Based on recent decisions, however, these trends surface:

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The conservatively bent Supreme Court remains essentially pro-business.

In general, the court shuns excessive government regulation -- but it is still resolving matters of state and federal jurisdiction on a case-by-case basis. In matters involving crime, the environment, and safety factors, the justices lean toward federal agency control.

The court is protective of individuals' civil rights in job-related situations, especially those that affect racial minorities and women. But it is also concerned that ``innocent'' non-minorities not be disadvantaged, particularly by affirmative-action programs where there has been no history of discrimination.

The justices will likely continue to invoke strong federal standards that forbid sexual harassment and on-the-job bias against women. They are reluctant, however, to assign clear employer liability for supervisors who engage in such harassment.

The addition of Associate Justice Antonin Scalia to the court is welcomed by most pro-business court-watchers. There are, however, varying opinions as to how much difference this recent Reagan appointment will make in swaying the court on business decisions.

``There will be no dramatic change in terms of a pro-business or anti-business [stance],'' says Stephen A. Bokat of the US Chamber of Commerce's public-policy law arm.

``The Burger-Scalia exchange is a kind of wash,'' he notes. (Longtime Chief Justice Warren E. Burger's retirement last summer opened the way for the elevation of Associate Justice William H. Rehnquist to chief and the appointment of Mr. Scalia.)

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But Mr. Bokat also figures that since Scalia is a ``conservative,'' he will generally be ``better for business.''

Quentin Riegel, assistant general counsel of the National Association of Manufacturers, tends to agree.

``It is a question of conservative replacing conservative,'' says Mr. Riegel. ``What will be important is his [Scalia's] analysis of particular statutes . . . [and his stance] on state's rights versus federal rights.''

William Lilley, president of the American Business Conference, is more enthusiastic about the potential effect of the new justice on business matters.

``Scalia has longstanding expertise in economic deregulation,'' Mr. Lilley says. He points out that businessmen generally don't want regulations abolished. ``They want them more cost-effective. And so does Scalia.''

Jack Albertine, vice-chairman of Chicago-centered Farley Industries and a longtime Supreme Court business analyst, sees the Rehnquist-Scalia axis on the court as being ``much friendlier on key issues like economic growth.''

``This is an area where the court has not been so good from a business standpoint,'' Mr. Albertine says.

Cases to be heard by the court during the 1986-87 session deal with these issues of broad public interest:

Affirmative action. Two cases involve promotions -- as opposed to hiring -- in the workplace.

One (United States v. Paradise) examines the validity of a quota plan in a Southern police department to promote black state troopers over whites until 25 percent of the ranks are black.

The other (Johnson v. Transportation Agency, Santa Clara County, Calif.) tests an affirmative-action plan that allows for the promotion of a less-qualified female candidate over a more-qualified male employee in order to obtain greater balance in the makeup of the work force.

Last term the justices -- in the face of Reagan administration argument to the contrary -- clearly reestablished the principle that affirmative-action or reverse-discrimination plans are a legal and appropriate way to remedy longstanding bias in the workplace.

They split, however, on methods. In two cases, they upheld hiring goals even if they did not benefit ``actual victims of discrimination.''

But justices balked at a school-related collective-bargaining agreement that allowed for layoffs of non-minority teachers with more tenure than minority teachers to affect racial balance.

Bargaining. One key case involves bargaining obligations of successor employers (Fall River Dyeing & Finishing Corporation v. National Labor Relations Board). The other examines the power of states to regulate bargaining tactics (Automobile Club of Michigan v. Roberts).

In the Fall River case, business is generally challenging these principles of the NLRB: (1) a successor's obligation to bargain with a union can be assessed as soon as it has hired a ``representative complement'' of employees rather than a ``full complement''; and (2) a union's request to be recognized by the successor employer as its exclusive bargaining representative is a ``continuing demand'' until a representative complement of employees is reached.

In the Automobile Club case, business groups are arguing that states cannot interfere with the use of collective-bargaining tactics that are legitimate under the National Labor Relations Act.

The Automobile Club had made changes in work rules after reaching a bargaining impasse. But a state court allowed Club employees to challenge this action under state law.

Religion and business A Florida case (Hobbie v. Unemployment Appeals Commission of Florida) raises this question: Does a former worker's refusal for religious reasons to work on the Sabbath constitute ``misconduct connected with work'' which warrants denial of unemployment compensation benefits after the employee has been discharged? An appellate court said it did.

In another religion-related workplace dispute (Ansonia Board of Education v. Philbrook), a California appellate court held that Title VII of the 1964 Civil Rights Act requires that an employer reasonably accommodate an employee's religious practices -- under joint proposals -- unless such proposals would create ``undue hardship'' on the business. This ruling is being challenged by a local school board.

Pregnant employees. In a California case (California Federal Savings & Loan Association v. Guerra), the plaintiff is challenging a state law that guarantees four months of disability leave and job reinstatement to pregnant employees.

The Ninth Circuit upheld this statute. But it is being appealed on the basis that the state mandates ``special treatment,'' while federal law requires that employees ``disabled by pregnancy'' be treated the same as other disabled workers.

In Montana (Miller-Wohl Company v. Commissioner of Labor and Industry), an employer is similarly challenging a state law which requires that pregnant employees be granted ``reasonable'' leaves of absence and reinstatement, regardless of their ability to work.

The plaintiff is arguing that federal statutes don't permit such arbitrary preferences and says pregnant workers should be treated the same as others on the basis of their work qualifications.

Among other business and labor-related questions to be raised before the Supreme Court this term:

Can a Japanese company be brought into a California court to answer for product liability?

Should a company that shows it will likely suffer injury from a competitor's horizontal acquisition of another company be entitled to an injunction to halt that acquisition?

Is it a constitutional violation when a local government agency regulates private property in a way that no economically viable use is left to the owner?

And should nonprofit, issue-oriented corporations be required to finance the distribution of voting records to the general public through a separate segregated fund?

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