Cooper v. General Dynamics, Convair Aerospace Division

533 F.2d 163, 12 Fair Empl. Prac. Cas. (BNA) 1549

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 9, 1976
• Docket: No. 74-3151
• Status: Published

Opinions

GEE, Circuit Judge:

Appellants work for appellee General Dynamics (Employer) on a federal enclave in the Fort Worth area, where union security agreements are permitted,¹ and once belonged to defendant union and its defendant local (hei •'after, collectively, the Union).

Appellant Kimbell’s employment began in 1950, when she was already a Seventh Day Adventist. In the early 1960’s, she withdrew from union membership on religious grounds. Appellant Hopkins’ employment also dates from 1950, as does his union membership. He joined the Adventist Church in 1954 and withdrew from the union on religious grounds in 1967. In 1972, for the first time, Employer and Union incorporated a union security provision in their collective bargaining agreement, one of the “agency shop” variety.²

Upon learning that financial support of the Union would be required of him by this new provision, each appellant protested to Employer and Union without success, commenced setting aside in trust the amount of such dues for contribution to some nonreligious charity if that were found acceptable, and went to court. After various vicissitudes, unnecessary to detail, the matter came to trial before our district court, where Employer and Union prevailed.³

At trial the legal issues were three: the effect, if any, of the “religious accommodation” provisions of the amended Civil Rights Act on the application of the agency shop provision to appellants; Employer’s right to recover from Union indemnity for attorney’s fees incurred in resisting appellants’ suit; and the effect of the Texas Right-to-Work law on the controversy. The last of these is not before us because appellants have not challenged on appeal the district court determination that state law lacked force on the federal enclave. As to the others, the court refused relief to appellants on the reasoning that their beliefs about supporting the Union financially, while both religious and sincerely held, were illogical — thus pretermitting the issue of whether the beliefs could be accommodated without undue hardship — and required Union to indemnify Employer for its attorneys’ fees. We reverse these holdings and remand for decision of the accommodation issue.

The Civil Rights Act and the National Labor Relations Act: Relevant Legislative, Judicial and Administrative Background

These pit the Union’s entirely understandable desire that employees who receive the benefit of collectively-bargained wages and other benefits should bear a fair share of the cost of obtaining them against appellants’ belief that supporting a union in any way is a Godless act which they should not be made to do to keep their jobs. Mercifully, in deciding this distressing issue, we are asked to write on small portions only of an already-crowded slate.

On the Union’s side, there can be no doubt that the agency shop provision here in question is valid under the National Labor Relations Act, 29 U.S.C. § 158 (1970), or that in the present state of constitutional law the first amendment does not shield appellants from discharge for refusing to abide by this provision. See Gray v. Gulf, M & O R.R., 429 F.2d 1064 (5th Cir. 1970), cert. denied, 400 U.S. 1001, 91 S.Ct. 461, 27 L.Ed.2d 451 (1971). As for appellants, we must take as given the district court’s findings, based on evidence substantial and sufficient, that the Seventh Day Adventist Church maintains a long-established doctrine that joining or financially supporting a labor union is an act inconsistent with the commandment to love one’s neighbor, the employer; that appellants are each members of that church; and that each holds with sincerity and as a matter of religious conviction that by supporting a union he places his soul in jeopardy.⁴ The matter thus comes down to statutory construction: what has Congress said should be done about such painful collisions?

Section 703 of the Civil Rights Act of 1964 provides, in pertinent part:

(a) It shall be an unlawful employment practice for an employer—

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . religion .

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s . . . religion

(c) It shall be an unlawful employment practice for a labor organization—

(1) to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his . religion

(2) to limit, segregate, or classify its membership or applicants for membership, or to classify or fail or refuse to refer for employment any individual, in any way which would deprive or tend to deprive any individual of employment opportunities, or would limit such employment opportunities or otherwise adversely affect his status as an employee or as an applicant for employment, because of such individual’s . . . religion

(3) to cause or attempt to cause an employer to discriminate against an individual in violation of this section.

42 U.S.C. § 2000e-2 (1970).

Initial EEOC guidelines promulgated on the subject, while recognizing a general obligation to accommodate employees’ religious needs where this could be done without serious inconvenience, permitted an employer to adopt any “normal work week” and holiday schedule generally applicable to all employees, without regard to or accommodation of employees’ religious observances, absent intent to discriminate on religious grounds. A subsequent and replacing regulation, however, adopted in 1967, took a firmer line: employers were required to make reasonable accommodation, short of undue hardship, to the religious practices of employees:

(b) The Commission believes that the duty not to discriminate on religious grounds, required by section 703(a)(1) of the Civil Rights Act of 1964, includes an obligation on the part of the employer to make reasonable accommodations to the religious needs of employees and prospective employees where such accommodations can be made without undue hardship on the conduct of the employer’s business. Such undue hardship, for example, may exist where the employee’s needed work cannot be performed by another employee of substantially similar qualifications during the period of absence of the Sabbath observer.

(c) Because of the particularly sensitive nature of discharging or refusing to hire an employee or applicant on account of his religious beliefs, the employer has the burden of proving that an undue hardship renders the required accommodations to the religious needs of the employee unreasonable.

Initial decisions by the courts tended toward a narrow interpretation of the statute and guidelines. In Dewey v. Reynolds Metals Co., 429 F.2d 324 (1970), a divided Sixth Circuit held it a sufficient accommodation of Sabbath observance to permit the affeeted employee to arrange his own replacement, despite his protest that Sunday work was so inherently sacrilegious that his inducing another to do it in his place would be sinful. That decision was affirmed by an equally divided Supreme Court.⁵ Central to the reasoning of the circuit court and of several contemporaneous district court decisions⁶ was a distinction between discrimination and a mere refusal to accommodate normal work rules of general application to the complainant’s special religious claims. In the face of an ambiguous statute, of changing EEOC regulations, and of the notion — intimidating at first blush— that a broad construction might cripple employers in a cross fire of religious demands, the courts⁷ by 1971 appeared to be settling into a view that the statute concerned itself primarily, if not solely, with Sabbath observance⁸ and that general rules, applied without discriminatory intent, were acceptable even though their effect in practice might not always be impartial. In 1972, however, with unusual promptness and unanimity, Congress responded to this modest trend by making clear that this was not what it meant.

The 1972 Amendment Defining Religion: Limited to Sabbatarianism?

Acting in what can only be viewed as a direct response to the Sixth Circuit’s expressed doubts in Dewey about the EEOC’s power to adopt such regulations as its revised guidelines — explicit reference to the decision and its affirmance by equal division is made in the legislative history, as is shown in our next footnote — Congress added to the Civil Rights Act of 1964 a definition of religion. This “definition,” set out below in the margin, exhibits the curious feature of defining as religious every aspect of observance, practice, and belief of that nature except whatever the affected employer can show he cannot accommodate without undue hardship to his business activities. Nevertheless, though it may make the stylist blanch, the definition possesses that most precious of statutory qualities: it cannot be misunderstood. If the employee’s conduct is religiously motivated, his employer must tolerate it unless doing so would cause undue hardship to the conduct of his business. And if the text left room for doubt, as it does not, the legislative history removes it.⁹

We are unable to reconcile with section 701(j)’s sweeping terms (“all aspects of religious observance and practice, as well as belief . . . .”) the Union’s suggestion that Congress intended by it to protect Sabbath observance only. When the legislator speaks plainly, he is entitled to be taken at face value. The language chosen is broad — broader can hardly be imagined'— and entirely extravagant to a mere concern for Sabbatarianism or any other particular doctrine or observance. Instead, the definition is what may be termed an operative one: all forms and aspects of religion, however eccentric, are protected except those that cannot be, in practice and with honest effort, reconciled with a businesslike operation. The Civil Rights Act extends to the religious doctrine implicated here.¹⁰

Other Union Contentions Regarding Section 701(j)

Three other contentions by the Union require treatment. The first, an assertion that section 701(j) applies only to employers, relates to a point on which the court has divided and which is treated below in the section of this opinion entitled “Accommodation and Hardship: By Whom and to Whom?”

Next, in two related arguments, the Union maintains that section 701(j) and the other provisions of Title VII may not be appropriately viewed as exemptions from the application of agency shop provisions sanctioned by section 8(a)(3), pointing to that section’s “supremacy clause”¹¹ and to the fact that when Congress wished to provide a “religious conviction” exemption from union security agreements for employees of health care institutions, it did so by a severely limited and narrow amendment to the National Labor Relations Act itself.¹² From these considerations, it is said to follow that Congress would not likely have intended to enact a broad and general exemption to 8(a)(3) for religious scruples by passing and later amending Title VII.¹³

We conclude, however, that the language of 8(a)(3) to which the Union refers, commencing with “nothing in this subchapter,” does not bear the sense that the Union seeks to place upon it. The passages of 8(a)(3) that authorize union security agreements are exceptions to the main body of that section, both structurally (as contained in a proviso) and conceptually (as resérvations from the thrust of the section’s major idea). Language in other portions of the section, and doubtless elsewhere in statutes of the United States, can be read as conflicting with this union-security proviso of 8(a)(3). It is, therefore, not surprising that the section incorporated language making plain that, despite these seeming conflicts, union security agreements are authorized, anything in the statutory system as then constituted notwithstanding. So far, so good. But to go on, as would the Union, to a conclusion that the quoted language is a true supremacy clause, which for all time lifts section 8(a)(3) above the general level of the United States Code to a position comparable to the Constitution, would be a startling measure indeed. For various reasons, it seems unlikely that this was Congress’ intent.

In the first place, a heirarchy of statutory dignities is foreign to our governmental scheme. We have constitutions that take permanent precedence over statutes; we are not accustomed to statutes that do so, and congressional intent to enact such a thing would be novel, a thing we would not lightly discern from language susceptible of other meanings. Second, the provision has an entirely rational and necessary function in the union security proviso of section 8(a)(3) — that discussed in the next preceding paragraph — so that we need not seek its raison d’etre in such an unusual purpose as that advanced by the Union. Finally, Congress’ recent passing of the health-care-institution exemption itself, codified at 29 U.S.C. § 169, without undertaking to amend section 8(a)(3) as a condition precedent to that action, indicates that it accords to section 8(a)(3) no such commanding status as the Union advocates.

And indeed we think Congress rather plainly correct in this perception, for neither the passage of the health-care exemption nor the passage and amendment of Title VII precludes or trenches in any direct way upon any employer’s making a union security agreement. He and his union can make any they like and enforce it in the general run of cases — in all except the unusual one where compliance would run counter to a particular employee’s religious conviction, sincerely held, that can be accommodated without undue hardship.

The Indemnification Claim

In closing the majority portion of this opinion, we dispose of one last claim— the Union’s contention that the trial court improperly required indemnification of Employer for attorneys’ fees and expenses incurred in defending this cause of action. We agree with the Union. The district court based its award on an indemnity provision of the collective bargaining agreement, which provided that the local union would

defend, save, hold harmless and indemnify [Employer] from any and all claims, demands, suits or any other forms of liability that . . arise out of the execution, placing in effect or carrying out of the terms of [the Article concerning payment of union dues].

But the local, which stood ready to defend Employer, was never requested to provide representation. Employer wanted its own counsel, fearing that loss of this case might adversely affect its interests in other litigation.¹⁴ Thus, Employer chose to retain its own attorney for its own reasons and purposes; and under these circumstances, the indemnity provision does not apply.

Accommodation and Hardship: By Whom and to Whom?

Chief Judge Brown and the writer concur in holding that consideration of all reasonable accommodations of appellants’ religious beliefs, including one which permits their nonpayment of union dues or the equivalent while continuing regular work assignments with their employer, is mandated by the sweep of section 701(j). For the reasons stated in his separate opinion, Judge Rives does not agree that such an accommodation should be considered, though he agrees that accommodations short of this should be. Judges Brown and Rives concur that, whatever range of accommodations is to be contemplated, hardship to the union, as well as hardship to the Employer, must be considered in evaluating them. Because of what the statute says, I am unable to agree.

Section 703 of the Civil Rights Act forbids, inter alia, an employer to discharge an employee for his religion and forbids a union to make or try to make an employer do so. Section 701(j) of the same Act defines “religion” as including every religious belief, observance or practice “unless an employer demonstrates that he is unable to reasonably accommodate to [it] without undue hardship on the conduct of the employer’s business.” (emphasis added). This is all. My Brothers add to the definition the factor of “undue hardship to the union.” As I read Judge Brown’s opinion, their reasons for doing so are that the union has a serious interest in the matter, that the statute would be more symmetrical this way (if one is to have an escape hatch, the other should have it, too), that a weakened union may produce hardship to the employer, and that such a statute would be more in line with “the overriding and evident policies of Congress.” With deference, none of these reasons persuades me, or even approaches persuading me, that when Congress has said A, in words which admit of neither construction nor misunderstanding, we should say A and B.

As for the reasons themselves, I answer: Indeed, the union does have a serious interest in this matter, one which should be presented to Congress for its consideration rather than to us. As for symmetry, neither the Labor Relations Act nor the Civil Rights Act is notable for it; each prohibits things to some people but not to others, and the thrust of each is toward equalizing unequal situations rather than an abstract symmetry. The next notion, that a weakened union may be seen as a hardship to the employer is conceivable but seems foreign to the perceptions both of Congress (which specifically permitted right-to-work laws and decreed employee elections that often result in no union at all) and of most employers who appear before us. Finally, the overriding congressional policies which my Brothers find evident are not so clear to me. I prefer to seek these in the words of the statute, what the Congress has solemnly said on this particular subject.

I therefore dissent from the result insofar as it directs the trial court to weigh union hardship in determining whether appellants’ beliefs are a “religion” for purposes of section 701(j).¹⁵ I do so because, in sum, under this direction that court may find that these admittedly religious beliefs can be reasonably accommodated by the employer without undue hardship to the conduct of his business — all that the statute provides — and still hold that they are not entitled to the protection of a statute specifically enacted to do so.

Conclusion

The judgment of indemnity is REVERSED, and the judgment is here RENDERED for IAM and Lodge 776. The judgment in favor of General Dynamics is REVERSED and REMANDED for further proceedings not inconsistent with the consensus majority opinion, that is, for consideration and decision by the court whether appellants’ religious doctrine here involved can be reasonably accommodated by the Employer and the Union without undue hardship to the conduct of the Employer’s business or to the Union.

1 . Though not next door in Texas, a right-to-work state. Howard Cooper, an original plaintiff, took a nonsuit at trial.

2 . Under which union membership is not a condition of continued employment, but payment to the union of a sum equal to its current dues is.

3 . Appellants continue to work, apparently by tacit agreement of all parties, pending this case.

4 . Having held so much, the district court then evaluated the tenet and concluded that it was irrational and specious, since appellants were not being asked to subscribe to union doctrine or to support strikes or violence against their employer, and since arguably the collective bargaining arrangement promotes industrial peace and thus lessens the possibility of violence. That appellants were producing parts for military aircraft did not escape the court’s notice, either. These telling arguments address an issue that is not for federal courts, powerless as we are to evaluate the logic or validity of beliefs found religious and sincerely held. United States v. Seeger, 380 U.S. 163, 184-85, 85 S.Ct. 850, 863, 13 L.Ed.2d 733, 747 (1965).

5 . 402 U.S. 689, 91 S.Ct. 2186, 29 L.Ed.2d 267 (1971).

6 . Riley v. Bendix Corp., 330 F.Supp. 583 (M.D.Fla. 1971), rev’d, 464 F.2d 1113 (5th Cir. 1972); see Dawson v. Mizell, 325 F.Supp. 511 (E.D.Va.1971) (action taken under Executive Order 11478).

7 . Though not all of them. The district court in Dewey found that plaintiffs’ rights had been violated, as did the court in Jackson v. Veri Fresh Poultry, Inc., 304 F.Supp. 1276 (E.D.La.1969), a similar case involving Sabbath observance.

8 . Encouraged by the title given by the EEOC to both the original and revised guidelines on the subject: “Observance of Sabbath and religious holidays.”

9 . Unable to improve upon Judge Tuttle’s exposition of this history in his Riley opinion for this court, we quote it in full:

In an amendment to the Civil Rights Act of 1964, approved by the Senate of the United States on March 6, 1972, and by the House of Representatives on March 8, 1972, the following provision was added to Section 701:

“(7) After subsection (i) insert the following subsection (j):

(j) The term ‘religion’ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.”

The total legislative history of this amendment appears at 118 Congressional Record, §§ 227-253. There it appears that Senator Randolph, of West Virginia, who sponsored the amendment, explained that it was designed to resolve the issue left open by the equal division of the Supreme Court of the United States in Dewey v. Reynolds Metals Company, 402 U.S. 689, 91 S.Ct. 2186, 29 L.Ed.2d 267 (1971). At 118 Congressional Record, § 228, Senator Randolph said:

“I think in the Civil Rights Act we thus intended to protect the same rights in private employment as the Constitution protects in Federal, State or local governments. Unfortunately, the courts have, in a sense, come down on both sides of the issue. The Supreme Court of the United States, in a case involving the observance of the Sabbath and job discrimination, divided evenly on this question.

This amendment is intended, in good purpose, to resolve by legislation — and in a way I think was originally intended by the Civil Rights Act — that which the courts apparently have not resolved. I think it is needed not only because court decisions have clouded the matter with some uncertainty; I think this is an appropriate time for the Senate, and hopefully the Congress of the United States, to go back, as it were, to what the Founding Fathers intended. The complexity of our industrial life, the transition of our whole area of employment, of course are matters that were not always understood by those who led our Nation in earlier days.”

It is significant that this measure was passed by a unanimous vote in the Senate.

The legislative history shows similar approval by the House of Representatives after the Chairman of the House Committee made the following explanation:

“Section 701(j) — This subsection, which is new, defines ‘religion’ to include all aspects of religious observance, practice and belief, so as to require employers to make reasonable accommodations for employees whose ‘religion’ may include observances, practices, and beliefs such as sabbath observance, which differ from the employer’s or potential employer’s requirements regarding standards, schedules, or other business-related employment conditions.

Failure to make such accommodation would be unlawful unless an employer can demonstrate that he cannot reasonably accommodate such beliefs, practices, or observances without undue hardship on the conduct of his business.

The purpose of this subsection is to provide the statutory basis for EEOC to formulate guidelines on discrimination because of religion such as those challenged in Dewey v. Reynolds Metals Company, 429 F.2d 325 [324] (6th Cir. 1970). Affirmed by an equally divided court, 402 U.S. 689 [91 S.Ct. 2186, 29 L.Ed.2d 267] (1971).” 118 Congressional Record, pp. 1861-1862.

Riley v. Bendix Corp., 464 F.2d 1113, 1116-17 (5th Cir. 1972).

10 . In Yott v. North American Rockwell Corp., 501 F.2d 398 (9th Cir. 1974), the Ninth Circuit reaches a similar conclusion. And our panel in Young v. Southwestern Sav. & Loan Ass’n, 509 F.2d 140 (5 Cir. 1975), necessarily assumed a reach in the Act beyond Sabbatarianism, though the point was apparently not contested there.

11 . “[N]othing in this subchapter, or in any other statute of the United States, shall preclude an employer from making [a union security agreement] . . . .” 29 U.S.C. § 158(a)(3) (1970).

12 . 29 U.S.C. § 169 (Supp. IV 1974).

13 . It is certainly correct that, as has been noted by our Brothers of the Ninth Circuit, numerous direct efforts to amend the NLRA in such respects have been beaten down. Yott v. North American Rockwell Corp., 501 F.2d 398, 400-01 n.4 (9th Cir. 1974).

14 . Employer’s vice-president and counsel, Booth, explained in testimony why he decided that Employer should employ its own counsel:

A. Well, we have been talking about the federal enclave here, and it has been made an issue in this litigation; and

There is more at stake to General Dynamics as a matter of the federal enclave than there is to the local or district lodge of the International Union. We felt that — we have a litigation in process in Austin, Texas, in Travis County, in connection with the franchise tax; and

We had one litigation in the early sixties with reference to the ad valorem tax situation upon our property on the enclave, or the property on the enclave; and

We felt, as a matter of good business judgment, it prudent, in protection of our own interests, and in connection with the enclave and our problems with the enclave, that we could best do this by retaining our own counsel. i

Q. Do you feel there might possibly be some conflict of interest if the union attorney was solely representing your interests in this case?

A. We felt that.

15 . My Brothers also ascertain a duty to accommodate on the part of the union. See e. g., note 1, concurring opinion of Chief Judge Brown, infra. I fully agree with the reasoning of that footnote insofar as it finds in section 703(c)(3) a duty on the union’s part not to interfere with an employer’s attempt to accommodate under section 701(j). To this extent and in this sense only, the argument is impeccable, but it carries me no further. But it may be that if the majority is resolved to inject the concept of union hardship into section 701(j), it is as well to import also the corresponding duty to accommodate — even at the expense of further violence to the statute.