Maine Human Rights Commission v. Local 1361, United Paperworkers International Union AFL-CIO

GODFREY, Justice,

with whom ARCHIBALD, Justice, concurs, dissenting:

I concur in Parts I and II of the majority opinion but not in Part III. Although the union security clause does not directly discriminate on the basis of religion, it does have discriminatory impact on the exercise of at least one religious practice. The Maine civil rights statute can be fairly construed to require employers and unions to take steps to accommodate the free exercise of religion as long as the accommodation does not amount to an undue burden on the union and employer. See Griggs v. Duke Power Co., 401 U.S. 424 , 91 S.Ct. 849 , 28 L.Ed.2d 158 (1971); Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 , 97 S.Ct. 2264 , 53 L.Ed.2d 113 (1977).

In reaching its decision, the Superior Court inquired into possible accommodations, including transfer of the employee out of the bargaining unit and payment by her to a charity of an amount equal to union dues. The court found that transfer was not possible and that the payment to charity would impose an “undue burden.” The majority opinion suggesting remand for a more detailed hearing on the charitable gift accommodation would leave the question of enforceability of union security *382 agreements open for case-by-case determination. Under that approach, trial courts will evaluate the cost to each union and the impact on union solidarity in each case. Trial courts will have to ascertain the number of Seventh-day Adventists and other religious objectors in the bargaining unit. Inquiry will have to be made into the morale of each local union. Employers and unions will have great difficulty operating under such conditions of uncertainty. The permissible scope of mandatory union security agreements should be determined as a matter of law. In that way, needless hearings and uncertainty will be avoided.

The federal government has long recognized the importance of collective bargaining. Since 1935, the National Labor Relations Act, 29 U.S.C. §§ 151 et seq., has provided detailed procedures for selection of bargaining agents and for collective bargaining. Furthermore, the union security agreement involved in this case is of a kind expressly approved by section 8(a)(3) of the National Labor Relations Act, 29 U.S.C. § 158 (a)(3). The National Labor Relations Act represents the national commitment to collective bargaining and the maintenance of unions as bargaining agents.

As elected bargaining agents, unions provide benefits to all members of the bargaining unit. They bargain for greater compensation and improved working conditions. Many unions also provide elaborate grievance procedures. Unions fulfilling those functions are duty-bound to represent all unit employees. Steele v. Louisville & Nashville R. R., 323 U.S. 192 , 65 S.Ct. 226 , 89 L.Ed. 173 (1944). The advantages achieved by the union are incorporated into the bargaining agreement, which affects all members of the unit. In providing those services the union necessarily incurs substantial expenses. Security agreements are devices that can insure a reliable, constant source of funds with which to defray those expenses. In addition, union personnel are released from fund-raising responsibilities so that they can devote greater energy toward servicing the unit. Since the union acts as the elected representative of all members of the unit and bargains for benefits for all employees, it has concluded reasonably that all members of the unit should share the cost of representation. Union security agreements serve a vital and legitimate function in the National Labor Relations Act system for collective bargaining.

Under 5 M.R.S.A. § 4572 (Supp.1977), employers and unions must make reasonable accommodations of religious practice, but they need not make accommodations which create an undue burden. The security agreement in this case does not require all employees to join the union. Thus, no forced display of loyalty is required of religious objectors. The agreement merely requires that they pay to the union a sum equivalent to union dues. The agreement operates, like a tax, to assure that all members of the unit bear their fair share of the cost of union representation. Contribution of an amount equal to union dues to charity in no way compensates the union for services it provides. It merely requires other members of the unit to bear the cost of benefits bestowed on the religious objectors. I think the proposed accommodation imposes an undue burden as a matter of law.

This position is supported by the case law dealing with the problem of conflicts between collective bargaining agreements and religious practices. Although the Seventh-day Adventists have used in other cases the mechanism of offering to give money to charity, none of the cases relied on in the majority opinion hold that such a proposal is an accommodation which does not impose an undue burden on the union and employer. In Cooper v. General Dynamics, 533 F.2d 163 (5th Cir. 1976), cert. denied, sub nom. International Association of Machinists v. Hopkins, 433 U.S. 908 , 97 S.Ct. 2972 , 53 L.Ed.2d 1091 (1977), a divided panel suggested that such an accommodation might not amount to an undue burden. This suggestion was made without reasoned examination of the importance of union security agreements and in the face of a well-reasoned concurrence which explored the problem and concluded that the proposed accommodation was not satisfactory. *383 In Nottelson v. A. O. Smith Corp., 423 F.Supp. 1345 (E.D.Wis.1976), the court noted the possibility of the accommodation suggested in Cooper, again without examination of the role of union security agreements. On the other hand, in Anderson v. General Dynamics, 430 F.Supp. 418 (S.D.Cal.1977), the court examined the federally recognized role of union security agreements and held that the accommodation of giving an amount equal to union dues to charity imposes an undue burden on- the union. Again, in Yott v. North American Rockwell Corp., 428 F.Supp. 763 (C.D.Cal.1977), the proposed accommodation was rejected based on the reasoned analysis in Yott v. North American Rockwell Corp., 501 F.2d 398 (9th Cir. 1974). Thus, although the accommodation of making a gift to charity has not always been summarily rejected, it also has not been found to be less than an undue burden. The cases which have examined the idea thoughtfully have rejected it.

In Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 , 97 S.Ct. 2264 , 53 L.Ed.2d 113 (1977), the Supreme Court dealt with a substantially similar accommodation problem. In that case, the Court noted that the union seniority system represented an effort to accommodate the needs of all employees and held that to require an exception to the seniority system would burden other members of the unit. The Court noted, at page 79, 97 S.Ct. at page 2274:

“Collective bargaining, aimed at effecting workable and enforceable agreements between management and labor, lies at the core of our national labor policy, and seniority provisions are universally included in these contracts. Without a clear and express indication from Congress, we cannot agree with Hardison and the EEOC that an agreed-upon seniority system must give way when necessary to accommodate religious observances.”

The Court concluded that any accommodation overriding the seniority arrangement would burden other employees and would constitute an undue burden. The Court also said:

“To require TWA to bear more than a de minimis cost in order to give Hardison Saturdays off is an undue hardship.” 432 U.S. at 84 , 97 S.Ct. at 2277.

Union security agreements to cover bargaining costs are similar in importance and function to seniority provisions. Thus, under the Supreme Court’s interpretation of undue burden, imposing an exception to such union security agreements imposes an undue burden. Furthermore, to force the union to forego the $72 annual fee would be to impose more than a de minimis cost.

The appeal should be denied and the judgment of the Superior Court affirmed.