UPDATED 6/16/09 

While all eyes are on the Ricci v. DeStefano case now pending at the U.S. Supreme Court, another high-profile case from Connecticut may end up making its way to the court docket later this summer.

The case is Church Homes (d/b/a Avery Heights) v. NLRB and dates all the way back to 1999 when employees went out on long and notable strike.  

Permanent replacements were hired (ostensibly without the union’s knowledge) and the union — when it learned of this — made an unconditional offer to return to work; an issue has arisen ever since of whether the hiring of permanent replacements was an unfair labor practice in this situation. 

For additional background, you can find the Company’s website here and this blog post by the Adjunct Law Prof blog.   The union’s website can be found here.  The Hartford Courant has covered this from time to time, such as this article from 2001 on the ongoing strike. 

In late 2004, the the National Labor Relations Board issued its first decision that the company did not have an independent unlawful motive in hiring the permanent replacements. The Union appealed to the Second Circuit, which ultimately vacated the Board’s decision and remanded it stating that failing to inform the union could be evidence of an unlawful motive.  

The NLRB then re-heard the case and issued a supplemental decision in mid-2007 finding a unfair labor practice because of the company’s failure to reinstate the permanently replaced economic strikers upon their unconditional offer to return to work.  The majority of the board protested its decision in a footnote but said its needed to follow the Court of Appeals instructions.

This time, it was the Company that appealed to the Second Circuit contending that the Board erred by improperly placing a burden of proof on it.  On December 29, 2008, the Second Circuit issued a summary order denying the Company’s request for relief and affirming the Board’s decision.

On March 31, 2009, Church Homes filed a petition for certiorari with the Supreme Court.  While petitions are a common occurrence (and routinely denied), this case may get a closer look than most.  

Church Homes is asking the Supreme Court to consider three questions:

  1. Did the Board unlawfully shift the burden of proof from the General Counsel by holding that it would find the Company acted for an independent unlawful purpose unless the Company proved that it had a legitimate reason for not disclosing its hiring plans to the Union?
  2. Did the Board err when it disregarded as hearsay the testimony of a witness as to why the Company did not inform the union of its staffing plans and required the Company to produce actual evidence of the Union’s potential for disruption?
  3. Did the Board err when it found that the Company hired permanent replacements for an independent unlawful purpose?

The Supreme Court may have been tipping its hand a bit as well as to which way its leaning.  On May 20, 2009, the Supreme Court requested that the U.S. government to chime in on the case and offer its opinion.  The Solicitor General now has until July 20, 2009 to file its response.  

Will the Supreme Court take the case and look at the issues regarding strike replacements and the burdens of proof associated with such claims? Stay tuned. 

Note: Due to an editing error, an early version of this post contained an incorrect description of the earlier NLRB decision. The post has been updated to clarify this disposition of the matter.