Appendix — Dewey v. Reynolds Metals Co.

Supreme Court brief1971

Ask Donna

What actually matters in this document.

Text

og je LIBRARY, J

B\e dk, ‘SUPREME CouRT, U.S. |

# Oe | SINGLE APPENDIX’ a : a

\n-tHE : we ee, Oe

SUPREME COURT OF THE UNITED STATE

e "October Term, 1970s f° ro

F ee wD ¢ / |

a. : ; £3 bd | \

: e898 er a Oe

tot oo | het gh st am -

ROBERT KENNETH DEWEY, ae

i Petitioner, eee. |

vs. i | ¢

a | »)

REYNOLDS .METALS COMPANY;-

| : Vik

_On Writ be Cpsslapact-t0- the United na RAE ef

Court of hein for the Sixth Circuit | rae

| pas 3 :

PETITION FOR CERTIORARI

FILED OCTOBER 12, 1970 |

CERTIORARI GRANTED JANUARY 18, \1971

‘

and

a *

a ?

. . . e aS . 2

R ee ‘ io Be soe = e ~™

Anis . Py * / <a a Se y R « 2

o 4a e / ’ i . Roe , ’

‘ . - ee . ‘ 1 ae ‘ . . .

* ~ bo

; : ‘ : N 4 : r’ . e e & .

ao ‘ < » “ 2 > nN “« s .

f 2 z * . J °

. . bd « , .

. A i e@ gies . . ra . :

a . ;! 5 “tien : ‘

e,.e e* 4 ‘ a ~ ; & ” ony

. A e . . F * Jj :

AEA edetea linen ‘est 50S" , . , ' . :

4 ct :

; : — © Ps a ea Ris 7 : : i <x j ie ® Si s-

eer Eas so Pies e ne oh es oo | Somes" Ol Aes eee ae

7 0. + PABLE OF‘CONTENTS'OF APPENDIX ~

o .¢ oa tee a . 320 SPE ap say

: . a , ar et ‘Page

"Relevant Docket Entries. . oe Ms Pest ty pete la 1"

; © | . -Complaint. ;. eo we 0s tun eb eshoseeewsepesore 0:60 b.O8

: =e a ; a as A : : = ’ | | : 2 °

‘Stipulation for Amendment of Coniplaint......12a.° - & os”

Order Allowittg Amendment. . Bye: 2 . were I 3a, Je I.

‘ | Amended Complaint sis Pde owt ka anes oe eer lta —- : ——: a

een : eee

Answer -of Reynolds Metals, Company owe Idan. ~:

Tl rs , ;

: 'PYaintff's interrogatories’ to. Defendant, : I i

ar aaa (Reynolds: Metals Company), - ies tee cose nl 9a

. a 2

a . “ .

: Angwers 1 to’ Plaintift' s interrogatories \eaivewes 23a

@ *S.;

Opinion Sening Defendant's. «we )

Motion to Dismiss. soe e cost veceeseweserss £98 |

\ ak Baer ce Ke a

‘Stipulation of Facts with Trial Exhibits. = ¥%/

"" -A-M attached (listed on pages iiiand . . etecr ga Mare

: iv of Table gf Contents of Appendix).....7.. 39a. - 4 os

Se a, ees, alae is

.. Opinion of Court Awarding Plaintiff eetor | we : ~

; Reémployment and Back ‘Pay from .. ae Se

ips tices 1967 oe@eoeweeweeee eg

: an : wa ,

Opinion, on Motions for Entry of Judgment £. Me a t

and ek of Judgment , o ocfers eo vw eeeee a . 1034 é

ag :) ; ¢ ‘9? =a asag iy . ns |

| ‘Judgment Granting Permanent Injun¢tion, “bot : i nh So

- i . and Reinstatement, Credit. for Seniority ests ee

Reet a and ‘and Pringe Benéfits, and ‘Back Pay ese et llla Lt wa

u 3 :

a *

..? e A .

mune bd s a AA | - © . 2 oe

\ a= re <

on afte * x re a" \ eee co.

PE pene eed ey Ac ii Js ates ee

j 3 Ca SEAT tars eo

‘ aise ce an 4 oo

ee ne ce 2

o,* \ a . , pt ae

“* - Opiniay 0 of the Pe: Ss. Court it Appeals. s eleaeeee 22a

in Part. |

. ) Pa:

1h ats

Tranécript of. Peocseding ' :

- Held July 16, 1969, ace 118a"

~ ope

: | F

4 e

Order of the U, S.. Court of Appeals. och s aes 2008

“‘Cpinion: on Petition: for - Pea :

of: ihe:% Ss. Gqurt of Appeal «i+ .+eseee. 4413.

ah a

. 29 \, * .

P . i : / ' ”

. : : : \

ee a | ;

Siete Vetses | | j = 1@

; : Soon «

ale? > | *

Fs <a \ a”

Fao F ‘ ‘ “

Pe sec =) ? om , ee e< a.

: . : - es

To sea or. 8.

oC pF ve

‘ és

2 ;

° Bae ’

: : |

’ 5 o ns

6 go.

: at oe ool Loa . ry ne a

Shs tai ie mae RG Ce as vn gh S \

ras i * EXHIBITS See ee

: ke } 4 oe ak ae *. Page.

“Trial Exhibit ia enter IX ioverlinae ae

’ Provisions) of ey ent ‘Metais Company +-

A oe ‘UAW erecta tal RETR EMEUS selene “t See ee eT sig

etd ‘Trial Exhibit Sey, dated September 29,

1965, from Plant Manager. Hudgi S-to__.. Se ees

- Chairman er al Cormaiitte Of go yes

Tecal 207, - UAW. cece geeeere stay ror ee

Trial Exhibit C-=Plant Rules--Reynolda y

Metals Company--Grand rca ee Sheree

eencans March gi 1957) .- Sk bse e oe ok Om

Trial Exhibit D--Written Warning. fo .

| . Robert Dewey for.First Violation of tay

é Plant Rule ‘No. ll, dated. August 29, 1966... 60a

Trial” Exhibit E--Written Wasting to’

Robert Dewey for Second Violatiori of |.

Plant Rule No. 11, dated September

“6, Geter aq Sea wie vraueaa aa ee ae bla

| Trial Exhibit F="Grievance No. 621,

~ ° dated S€ptember 7, 1966,,. filed. with

. Reynolds Metals. Corrtpany by Robert

Dewey objecting’ to Labor Complaigg and

Three © Day. cs pare areas Suspension. | se eae . 62a

Trial Exhibit G--W*itten Notice ‘of Dig’

_ eharge to.Robert Dewey for Third Viola - :

‘tion of Plant Rule No. 11, dated”.

_Bepterater | 2, eee eee reece eens Pr 64a

: : *e?

* - a, ~ is ”*

> x e ¥

; ° - i - ¥ \ iar . m ° :

AR iv

si Bare R® | :

Thy tei “Exhibit H- “Grievane’ 467 ‘eo. . Re .

- keceived: by Reyndlds. Metals Compaia-

‘Se »ptember 19,. 1966, signed by Robert,

-Dewey ®nd Committeeman: Sam Sella } y- «

a DESEO EES: discharge - SE. apse rg tae i .-65a

° Sasa PER, Gane : ’

£ Trial Exhibit is «Opinion and’ Award of chil 9 ie

Arbitrator Mark Le ag dated: ‘ Pei i

June 29, 4967, denying, Fi

F ,

sustaining mites see ee & es 0 oe

say Trial Exhibit yo Better ‘from Michigan

_ Civil Rights Commission, dated: ibe Mes

‘September 19; 1966, anlvising tWAt aa a

Robert Dewey had filed.an application es

; for issuance of a Compiaint’ cece eee ee

-¢ Trial Exhibit’ ‘K=-Notice of Disposition oe

and Order of Dismissal from, Michigan

Civil Rights Commission dated es

December 13, 1966 Re See Bla

Trial Exhibit 1a iGharge filed, by Robert ant

. Dewey with Equal. Employment Opportunity .

- Commission bested god of. sores yea 8 4, 1967. ~ € 83a

3 hang © : te

Trial Exhibit M--Letter f qual Bes

ployment Opportunity C lission, dated”:

- January 5, 1968, advising that Commission

- had determined there was reasonable cause

piaeckio 3? OR

_to believe Reynolds’ Metals Company had= —.

ehgaaee in unlawful employ nt practices

under TitleAII of Civil | Righits ‘Act of 1964... 88a

Ere ath ae : ERS feats we

Docket Entries > llae - I4\ |

re See wh APPENDIX ah ates OE

Patigec ea UNITED STATES DISTRICT COURT: fans ae

FOR THE = WESTERN; DISTRICT. OF. sacintch ah ism

_ SPUTHERN DIVISION: awe: : ee

ROBERT. KENNETH DEWEY,” Wah ee d :

: . Plaintiff; ares fed rt Bt ae

- VSe ee 7 cs a oe eles en Ey Gana: NE

.#) eo arn ee ees

REYNOLDS A METALS COMPANY, SE ae

{ Defendant. ey PoFeiches

File No. 5889 a war Ss Si cecaeg eae

: RELEVANT DOCKET ENTRIES PA

1968 oe Shree caer a5 : S |: |

May 31 Complaint filed. ae ght f. Ae : Pe

_June.19 Answer of’ Reyfolds: Metals’ Company, fied” Gs

' June 27: Plaintiff's Pera et to Detendant, ‘ee, hae 3

ok |. filed. “ye. |, i oe) ah

a -Aug. 7 1 Stipulation for. Amen tae of heh oieink 1 Oe |

phate -+\ and Amend plaint, filed. he ee

Aug. 14 Answers to Pipe imernoaigis mi: ae :

Se kee filed: x .

Ag: 1@ Order Allowi -Piaintiff to Arnend Its >*— FP

\- . Complaint jn accordan€e with Stipulation-. \ | oe

Staeeh bolder. filed, filed. | era OE i

Aug. 29° Defendant's Notice of Motion for Dismissal .

Spas va for Failure to State a Clainf Upon Which epee

Relief Can be Granted; Points and Authori-. ate, &

a ties in ‘Support of. Motion;..and’ Affidavit

* Se not Barer, Lies, filed. : ;

yee ‘Sept, 23 Plafntiff's Brief in Oppssitiba to" Defendant! s— 8.

i ' Brief and Motion to Disntiss for Failure,

a ' . to: State & Cause:of Action Upon Which | s:

: ca Relief can ne Granted. Attorney’ s A Wikre Ws

“davit, filed. ie Be asa 4 as

Oct. 9°. , Defendant's Brief as th. the Application ‘of.

rt Constitutional Guarantee of Freedom of .

Religion under: First Amend@ent, WEE:

filed.’ \ '

’

Docket Entries - SRM Tae an hy: 24: -—

Bike v .

Oct, 18. Order Denying Defendant's Motion to Dis-

miss, filed.

“Nov. 5- Opinion Denying De fe ndant's Motion to |

Dismiss, filed, — me,

1969 :

/ Mar. 17 Stipulation of Facts and Exhibits teeter =e.

filed. < é

Mar. 27 Brief for Defe shin Reynolds Metals: Com-

pany, filed.

Mar. 28 Plaintiff's’ Trial Brief, “filed.

Apr. 4 Brief of National Jewish Commission on

; Law and,Public. Affairs, Amicus Curiae,,

filed. . 4 *. uae

Apr. 7 - Hearing--Arguments by Counsel before the .

. . - Court, Matter taken under advisement. |

Apr. 24 Supplementary Brief for Defendant caks ns

a Metals Company in Response to Amicus

Curiae Brief of National Jewish Commis -

5 sion on. Law and Public Affairs, filed.

June 6 . Opinion of the Court, awarding,Plaintiff

reemployment ‘and back pay from Augue

1, 1967, filed. ‘Court to retain juris-

‘. ‘“.diction of case.

July 8 . Notice of Motion and hintiew for Entry of

: _- Judgment, filed.

_, July 14 Defendant's Notice of ‘Motion for Super -

a sedeas Bond; Points and Authorities in

Support of~Motion; Affidavits of Robert

7“ ‘E. Jordan, Charles C, Hudgins, and

Henry J. Wilcoxgjn in Support of Motion,

filed.

July 16° Affidavit of Robert piiemiath Dewey in Oppo-.

% sition to Defendant's Motion to Stay, filed.

July 16 Hearing on Defendant's Motion for Stay of

Judgment Pending Appeal.

July 16 Opinion from the bench. Money aspect of ©

“Opinion will be stayed. .

; Docket, Entries ° ‘. ; re | sa

ys July 16 Re instatethent *of Plaintise as an “euipleyer

will not abe stayed .

7 July 16. The Court will withhrold- A-ruling op attorney! s

“er” =fe¢gs pending appeal.

‘July es Opinion on Motions for Entry-6f Judgment

¢ and Stay of Judgment, ih ae 8

July & Judgment Granting Permanen Injunction,

and Reinstatement,.Credif for Seniority . ~

‘o | and Fringe Benefits, and Back Pay, filed.

Nyy 25 Order Staying Executifyn in Part (speciftcally

_ Paragraph 4 of Judgment) pending”final

| disposition of this cayse*in appeal, filed.

July 31 Notice of, Appeal by Defendant Reynolds

p Metals ‘Company, filed, —”

*- July 31, Supersedeas Bond in amount of $15, 000. 00,

: ’ filed. o \

° Aug. | Transcript of ceaiiltes held July 16,

, 1969, ae ; 2 a aoe

UNITED STA COURT OF APPEALS »

oS, FOR we se Td hey

* 1969

Aug. 4°" 1 envl. exhibits eats record and exe"

hibits returned to District Court 9/4/70 - .

Aug. 4° Motion of Appéllane for supersedeas,

memorandum in support, ‘with affidavits

an@éxhibits A arate E, filed; and cause

_ docketed

Biz. 40 Affidavit of service ,by.mail on the abav¥

ae - motion .

- Aug. 4 Appearance of counsel for Appellant

Aug. 7 Appearance of counsel for Appellee

Aug. 8 Biief of Appellee in opposition to motion

, of Appellant for supersede "enn and

stay of judgment ~

‘Aug. 12 Proof of service on 8/7/69 of brief in

opposition to motion for supersedeas

bond and stay of judgment bs a ie My

Aug. 19 Gedo aaiipiig motion of ‘Appellant to stay

3 . enforcement of the District.Court judg-

ment’ without prejudice to its renewal in

j the event overtime productions. schedules

saa which might. invoke paragraph 2 of the

judgment should be resumed (McGreé, J.)

R=187 ,

Sep. 3 Certifjed record (1° val. pleadings), filed;

aij “and cause docketed as of August 4, 1969

Sep. 19 Motion: Appendix and Appellant's brief to~

10/13/69 (Granted, but no further exten-

sions will. be considered - JWP)

Oct. 9 Twenty- five copies of Brief for Appellant

Oct. 9 Ten copies of Appendix for Appellant

Oct. 9 Proof of service of brief and open for

Appellant ‘

Oct. 29 Motion of Equal ‘Employment Opportunity

Commision for leave to file a brief °

Oct. 29. Motion for’ extension of time to 11/26/69

' to file brief as amicus curiae +74

Nov. 3. Response to motions of Equal Employment

Opportunity Commission to file brief

“Amicus Curiae, present oral argument

and’ ‘extend time for filing brief, with

Appellant's proof of service

_ Nov, 6 - Proof of service of brief for Appellee

Nov. 7 Twenty-five copies of Brief for Appellee

‘ Nov. 10 Motion for extension of time to11/26/69

to filé brief Amicus Curiae, and Motion

of National Jewish Commission on Law

_ and Publie Affairs for leave to file brief

Amicus Curiae, with proof of service

Nov. 12 Order allowing Equal Employment Oppor-

_ tunity Commission to file brief amicus ~

” curiae by 11/26/69 and to present oral

ne argument-only to extent that AppeHant ,

. may yield any time alloted him under

the rules (McCree, J.) R-327

ww ~~ *

‘Docket Entries , pene: ia Ok, iis eee * ome

amicus curiae and present oral argument

Docket Entries

Nov.

- Nov...

‘¢ Dec.

Dec.

| Dec M

Red antec nn eer

‘a Respénse of Appélfant to m6tions of

. National Jewish Commission on. Law to ©

. file-brief amicus curiae,’ et ‘

26 beri five copies of Brief -o Nattonal

Sewish Commission on Law and Public

Affairs, Amicus Curiae .

26° Proof.of service of brief of National J Jewish |

Commission, amicus curiae ‘*

1 Twenty-five copies of Brief for Equal Em-

ployment Opportunity Comm. as amicus

curiae, with proof of, service .

8 Request of Appellant for permission to file |

answer to Amici briefs, also in typewritten

- form (Granted. Reply brief by 12/24/69-

JWP) Kosi ai .

19 Ten cdpies Brief of Appellant in reply to

briefs of National Jewish Commission

and Equal Employment Opportunity Com-

mission

19 Proof of service of Appellant's brief in

‘reply to amici Wriete |

9 Cause-argued and submitted (Before: | Weick,

Combs and: O'Sullivan, JJ.) — “R-485

. 16 Four copies of oe Brief, for

Appellee

gts Four copies of bidakilienbaity Brief for:

Appellant

19 Twenty-five copies of Supplemental Brief

of Equal E ployment Opportunity Com-

‘mission Amicus Curiae

sd Four copies of Qpinion of District Court

at Cleveland, Ohio in Mrs. Sarah H.

Beamer, et al.v. Alsco, Inc. (Copies

distributed to the Court for counsel for __——

Equal Employment Opportunity Comm.)

Docket Entries , ° ba -

June 4 Sudgosed nt of the District Court reversed

and case remanded with instructions to, ; |

: ' dismiss the complaint - ' R-716

June.4 Opihion by Weick, - os maser tat: dissent-

ing)’ :

June 17 Twenty-five ‘copies of Petition for Rehear-

ing and Suggestion for Rehearing in Banc,

with proof of service ;

June 26 Twenty-five cgpies of Supplement to Petition,

for Rehearing with copy of Opinion of le,

Fifth Circuit in Hutchings v.’ Unitéd States

i Incustries, Inc., and proof of service

' June 29° ‘Nine copies of, Motion. of National Jewish

as Amicus Curiae, for leave to file memo-

randum in support of Appellee's suggestion

for rehearing in banc, with copies of

. Memorandum attached (Distributed tothe |

. . Court in banc)

July 1 Motion of Equal Employment Opportunity ”

‘ , Commission for leave to.file a brief in 7 *~——

___ support of petition for-rehéaring and _ c

EET Se suggestions for rehearing en banc, as

amicus curiae (Granted). |

July 2 Twenty - five copies of Brief in support of

; Petition for Rehearing and Suggestion for

Rehearing: in Banc as Amicus Curiae

tendered (Filed) . cat

July’ 14. Motion of NAACP Legal Defense and Edu-

Ses cational Fund, Inc. for leave to file a

brief Amicus Curiae in support of petition

for rehearing, with proof of service

r (Granted - PCW)

July 14 Twenty-five copies of Brief of NAACP ;

Legal Defense and Educational Fund, Inc., .

-as Amicus Curiae, in support:of Appellee's |

petition for rehearing tendered (Filed ‘.

_ July 27, 1970 and distributed)

Docket Entries ae

July

Aug.

Aug:

Sep.

;

. 25

- 10/12/70 (Sup."Ct. No. 835)

Order referring petition oe rehearing to

panel for final. disposition (Weick, J.)S

Order denying: petition for rehearing (Weick\

McCree and Q'Sultivan, a3 ‘$-79.

Opiniop on petition for rehearing (Weick,

J., - MeCree, J., dissenting)

Mandate issued (Costs to be recovered by

Appellant - $25.00 filing fee)

Opinion with mandate and opinion on petition

for rehearing. |

Letter from counsel for Appellee request-

ing preparation of record for the Supreme i

Court of the United States — |

Certified record for certiorari application

mailed to Clerk of United States » Supreme

Court :

Notice of filing petition for certiorari

| Complaint ae cee og ie at = 8a

ae tere & WRC tae ‘ , .

rie @ SS,

(Filed May 31, 198) . Ets

The Plaintiff says:

.' This ction arises aides Public ine: 88- 352,

a VII, Section’706 (e), July 2nd, 1964,~78Stat.s.

259, 42 USC 2000e, et seq, and 28 USC 1343,. as.

hereinafter ‘more’ fully appears. The jurisdiction ‘

of this Court’ in invoked to secure protection’ and:

-redress deprivation-of rights ‘secured by Title’ VII

of the. ActKnown as ''Civil Rights: Act of 1964, ae

— USC. 2000e, providing for relief against religious

discrimination in employment.

2. The defendant is a corporation with its ex-

‘ecutive offices in Richmond, Virginia, and an "alu-

minum extrusion" plant in Grand Rapids at Beverly

and Porter Stréets, S. W., Kent County,’ Michigan,

3. The untawful act’ complained of herein oc-.

curred at the Grand Rapids plant site. ‘

. 4. Plaintiff tesides at 901 32nd St., s. W., in.

“the City of Wyoming, Kent County,“ sre ta That

plaintiff is an adult.

_ The plaintiff was employed-by the defendant is

ae July 14, 1951, through September 12, 1966.

‘ During this period, plaintiff held a number of dif-

ferent jobs but, at the time of his termination, he

: was’employed in the Capacity of a die repairman.

6. Since 1962, the plaintiff has been 4 member ~

of the Reformed Church and, consistent with the

religious beliefs of the plaintiff as a member of

said church, plaintiff has refused to work on Sundays.

However, plairitiff consistently volunteered for

. . 5 - sy ~ : .

Cpmplaint oy ak 2 eae : 9a”

wold no beliefs to work on Sundays and that he

9 s*

- 8vertime and extra: work te 9 2ecqmntodate employer ;

.on every day but Sunday.’ Deere! Wee

* ° j | °

7, In 1960, a new Labor - ManagemuntoAgree-

ment was executed between'the UAW -AFL-CIO and

. Reynolds Metals Company, and the 1960 Labor-

Management Agreement provided that the Company ,,

could. schedule compulsory overtime work, including oe

Sundays. This provision was carried forward in

_the 1965 Labor-Management Agreement which was

in effect at the time of the termination which is the

_ basis of this action. Overtime scheduling for Sun-

day only. became necessary in late 1965-1966.

8. From’ 1960 until 1965, the’compulsory

. overtime provision was not exercised, and the Com-

pany functioned on a 5- -day work week schedule.

' However, the defendant began scheduling reeucisid

overtime Re late 1965... pre

ae “9, “Tey a bullétin dated September 20, 1965) the’

Management agreed to allow employees to be re-.

‘lieved of Sunday work if they obtained a qualified er

replacement. of

10. Plaintiff refused to wark scheduled Sunday °

overtime because it was against his religious beliefs.

Plaintiff was scheduled to work Sunday, August 28,

1966; September 4, 1966; .and September 11, 1966.

He did not report for work on any one of these three ©

Sundays, having previously made it expressly known

to the defendant company that it was against his —

d' not report for work on Sundays, Plaintiff.

further made it known that he» would not seek a sub-_

_ stitute to work in his place because it was his. belief

that if it was not right for him to work on Sundays,

iswould not be.right to request. someone to work in ©

Complaint: Eee ees Jigen _- 10a

his place on Sundays, regardless of the substitutets _ :

religious beliefs; but. rather, that the Company |

should obtain: the substitute so as to’ accomodaté his

religious beliefs. The September 1 lth absente re+

sulted in a third written offense,, and plaintiff was

terminated pursuant to ea cased d ruse > eae

Lys At the time ‘plaintiff was Machatged Phere:

were See Oe 341 employees at the Grand’

- Rapids Plant. Of this number, approximately ly

-mén were qualified to do the work of a die repair --

-. Ran. ‘FGtther,. an available substitute, an employee .

pry the name of. Zagman, was available and willing,

as were other employees, to substitute for employees

who did not wish to work on Sundays, ‘but the Com-,

pany refused to accept these substitutes unless the

substitute was requested. to work.by the employee

RO was scheduled tor Sunday: overtime. E

a ‘The defendant Company did obtain a sub-

stitute for an ‘employee assigned for.Sunday work

who expressed the desire to attend a family reunion,

but ‘defendant would not obtain a substitute for an. ,

employee whoSe religious beliefs do not approve of |

siete on- “Sunday. ‘4

13. The defendant's. position with reference to

requiring the employee to seek a Substitute is in-

3 consistent with the Equal Employment Opportunity

Commission's guidelines, Title 29--Labor, Chapter

. XIV; Part 1605, Section 1605.1 (b), Federal Regi-

ster, Volume 32, No. 134--Thursday,, nay 4... 907,

which states in part: - °

\ re ks

"The Commission believes ‘that the duty |

“not to discriminate on religious grounds, rée-....

quired by Section 793 (a) (1) of. thé Civil: ‘Rights °

Act of 1964, includes an obligation on the part

Ps % uy

Complaint 7 ee ees lla.

of the employer to.make reasonable accom- -

_ modations to the religious needs of lan em-.

_, ployee and prospective employee where such

“* accommodations can be made without undue:

ardship’ on the’ conduct of the employer's ;,

ess: Such. undue hardship, for eeaeaplc,

<ist where the employee's needed work:

. erformed by another employee of

“substantially imilar qualifications during the

_ period of absence of the. Sabbath apeerver y'"

"44, On January 4th, 1967, blainti€t filed a:re>

quest with the Equal Employment Opportunity Com-.

mission, Regional Office, in Cleveland, Ohio, to

- assume jurisdiction and to investigate. his charge:

against Reynolds Metais Company. es i

aT Following | an’ extensive ‘investigation by .

the Equal Employment Opportunity Commission,

the Commigsion found Reasonable Cause to. exist®

to believe that the Reynolds, Metals Company was -

in violation of. Section 703 (a) (1) of Title VII of the

Civil Rights Act of 1964, as Alleged, a copy of |

which ‘decision is hereunto aftached as Exhibit A

and made a ‘part hereof, — “ait

16, The Equi Reiter. Opportunity Com-

mission then atternpted to eliminate the unlawful

practice it found by conciliation as provided for in™

Title VII. Howeyer, the final disposition of this

matter was ‘unsatisfactory, and on May 3rd, 1968,.-

the Commission directed a ''30-Day Letter" to plain- |

tiff advising him that conciliati n efforts had a*tatled,

to achieve voluntary compliafce,. and that the ¢ only.

remedy remaining to plaintiff was to institute a civil

_action in the United States District Court, pursuant.

"to the provisions of Section 706 (e) of Title VII of,

‘the Civil Rights Act of 1964; 42 usc 2000e-5 (e),.

Stipulation. for Améadfnent « of Complaint sae 12a i

ae .

copy of which ‘letter is hereunto attached 2 as Exhibit * |

‘ | Band made ‘a ui hereof, sie,

| "WHEREFORE, plaintift demands judgment at el

: agasek shapbnatice’ Reynolds Metals Serene: | |

; Fy Phat defendant: be nedeeen to ( elagtete plain;

‘tiff to the positién Which-he hel the date of his |

; termination on. a ee “with all back:

pay and other attendant fringe. benefits accruing. te (=

si employee” in the capacity in which plaintiff was

: employed at the time of termination, in accordance

.~ with the terms of the Labor-Management Agree.

ment, . including reinstatement of full seniority: . |

2. For such other er further relief'as may be Rae

equitable in the premises. ck : ot

. VANDER VEEN, §-REIHOFER & COOK | >

By: Donald F. Oosterhouse oe —

‘Attorneys for Plaintiff res <. SoBe

en ae Business address: Ea i

Se: Cease 950 Union .Bank ‘Building “

Sey 8 “suGrand. Repitla, Michigan 49502

Dated? May 31, 1968.

‘STIPULATION FOR’ AMENDMENT

OF COMPLAINT |.

are (Filed ee ys 1968)"

| ‘It is hereby stipulated by and Gahan the eitioe

Kereto that Plaintiff may file-the Amended Complaint '

attached pereto, and service of a ‘copy thereof. is

hereby Reeeee - :

Dated: August 5, $968,

Ge - ad - 4200 Penobscot. Building : \ eae j «ai

\ SNS A 0 REE Re ea ae Sonny a Pear

Order _ Allowing Amendment SS ae oe. Ba 'f

te pees ‘WaRDER VEEN, FREIHOFER & COOK. * ‘*%

er * > @ By! Pete RyTolley = . os, 0, :

‘dns See 5k Atto¥ eys for’ Plaintiff - eee |

i, g . s ‘Bustiees Address:: . 2 ass, : = 3,

= nis 956 Union Bank, Building ee eS

7 Grand Rapids, {Michigan 49502 2

fe NS -. ©. Attorneys for Defendant

| . Detroit, Michigan 4822623...

4 William Cotgetur qe

--* ORDER ALLOWING AMENDMENT Sere

ae tay | “¥. (Pilet Auguet 16, 19687 05+ Ft

Upon reading ad considering the Amendment

' stipulated by and between the Attorneys | for the re-

_ spective parties parsits ‘upon motion of Plaintiff.

; cf

THEREFORE IT IS HEREBY. ORDERED that |

Plaintiff may amend its. Complaint herein in the form

“e ee fo said Stipulation..

Getedc | Ruciat L6, 1968, 4 > .

xen RRA ee. nD

Wey , United States District hike }

i ° ‘ v

| "AMENDED COMPLAINT oy ;

"(Filed August Y, 1968)

= ow COMES tie ‘PlaintitepRébert Kenneth .

Dewey, by his attorneys Vander Veen, Freihofer.

" & Cook, leave of court being first had and obtained

_pursuant to Stipulation of Counsel, and amends his

complaint:in the following particulars, to wit: by ,

adding, as Paragraph No. 2 ‘of Plaintiff's PERTPr ae ame

> and demand for Judgment the tolewing: . WA 8:

. ry ‘ “hi 4

Amended Complaint l4a

2. That Defendant be ordered and directed to

pay to Plaintiff reasonable attorney's fees as part

of Plaintiff' scosts in this cause ‘pursuant to Title

42 USC 2000e-5 (K) And also by deleting the Number

2° and inserting Number 3 for the following to be the

third Paragraph of Jug ol dupa

3. For such ee or eee, sated as may be

equjtable in the premises. ete

This amended complaint is not intended to supersede

_the original complaint, and the original complaint |

remains in full force and effect except as above

- amended, — ; z /

‘». .VANDER VEEN, FREIHOFER & COOK ©

. , By: Peter R. Tolley _

Ps hs | epee for Plaintiff

usiness Address: ~~ A

950 Union Bank Building . o

Gfand Rapids, rsa ae 49502 ~

Dated: August 5, 1968. © Pes }

ANSWER

(Filed June 19, 1968)

Defendant, REYNOLDS METALS COMPANY,

by its attorneys, in answer to the Complaint here-

tofore filed in this matter, ‘says:

a Answering paragraph 1 of said Coraplaint,

Defendant admits the allegations contained therein, -

except that it denies the applicability of said public

law to F.aintiff's alleged claim.

2. Answering paragraph 2 of said Complaint,

Defendant admits that it is a corporation With its

. 2 :

yon

Answer © ; . in , 15a

executive offices in Richmond, Virginia, but denies

each and every allegation thereafter — of in-~

accuracies as to the description of the function of

the plant and its geographical locatfén., Further

answering pdragraph 2, Defendant alleges that it

operates a plant engaged in the production of alu-’

' minurh extrusions and aluminum billets at Beverly

and Porter Streets, S.W. located in the City of

Wyoming, Kent County, Michigan. .

3. Answering paragraph 3 of said Complaint, :

Defendant denies both that the acts complained of

were unlawful or that they occurred at any site

located in Grand Rapids. Further answering para-

‘graph 3, Defendant admits that the acts complajmed

of occurred at the plant site in the City of "Wy ohiDg,

Michigan.

. ’ ,

4. Answering paragraph 4 of said Complaint,

Defendant is without knowledge or information suf-

ficient to form a belief as to the location of Plaintiff's

residence but admits that Plaintift i is an adult.

5, Answering ae 5 of said Complaint,

_. Defendant admits the allegations, contained in para-

graph 5, except Defendant says that Plaintiff was

hired June 14, 4951. ey ,

6. Answering paragraph 6 of said Complaint,

Defendant denies each and. every allegation contained

therein.

7. Answering paragraph 7 of said Complaint,

Deferidant denies each and every allegation contained

therein. Further answering paragraph 7, ‘Defendant

admits executing a Labor Agreement with the UAW-

AFL-CIO and-its Loca) 277 in 1960 and again in 1965

containing among other provisions one which made

2 , .

Answer” ; ... Ae <>, be

overtime work compulsory when assigned in ac-

cordance with the te rms of said Agreement. Said’

provision was in effect when Plaintiff was discharged.

ee —)

8. Answering paragraph 8 of said Complaint,

Defendant Menies each and every allegation contained

therein, ’

9, - Answering paragraph 9 of said Complaint,

Defendant denies each and every allegation contained

therein, Further answering paragraph 9, Defend- |

ant alleges that Plaintiff at the request-of the Union

prepared and issued a letter, dated September 20,

1965, interpreting parts’ of the Labor Agreement |

specifically providing that an employee would be

relieved of his obligation to w rk overtime if said

employee furnish a replacement considered quali- -

fied by the Company.

‘10. Answering paragraph 10 of said Complaint,

Defendant admits the allegations contained therein

except that Defendant denies the allegation that at @

all times while an employee of Defendant, Plaintiff

refused to.work scheduled Sunday overtime because

of his religious beliefs. Further answering para-

graph 10, Defendant alleges that Plaintiff was sched-.

uled to work August 7, 1966 and August 14, 1966,-

both dates falling on Sunday, but a fellow employee

worked as Plaintiff's replacement under the pro-

visions of the interpretative letter of September 20,

1965. Defendant further alleges that after each e:

violation of the Plant Rule, absence from work 7

without reasonable cause, Plaintiff was warned and

disciplined on a progressive basis finally resulting

in his discharge.’

, * 4 ‘

ll, Answering paragraph I|I of said Complaint,

Defendant denies each and every allegation contained

Answer , i3 17a

therein. Further answering paragraph 11, Defend -

ant alleges that Plaintiff told fellow employee Zag- .

man prior to August-28, 1966 that Zagman was not-

_to serve as his replacement on any further occasions.

12. Answering paragraph 12 of said Compiaint,

Defendant denies each and every allegation contained

therein. Further answering paragraph 12, Defend- ©

ant alleges that it excused an employee from Sunday

work for a substantial and justifiable reason (attend -

ing a family reunion on a given Sunday). Defendant

further denies that it has or did excuse such an em-

ployee from all Sunday work for such a reason,

13. Answering paragraph 13 of said Complaint,

_ Defendant says that the allegations contained there-

in are conclusions of law and are denied. Further

. answering paragraph 13, Defendant alleges that it

has made reasonable accommodations to Plaintiff's

religious needs by establishing a replacement pro-

cedure as set forth in the September 20, 1965 letter

_of interpretation making possible the avoidance of

ali Sunday work. Defendant further alleges that

there has been no discrimination as to Plaintiff be-’

cause of religious beliefs or otherwise as evidenced .

by the prior investigation of this same subject mat-

ter and conclusions of no violation by the United

States Office of Federal Contract Compliante and

the Michigan Civil Rights Commission. Defendant

further alleges that an arbitrator has interpreted

the Labor Agreement and has upheld Defendant's

. position in denying grievances as to the same sub-

“ject matter filed by Plaintiff protesting a disciplinary

layoff and his subsequent discharge.

14, Answering paragraph 14 of said Complaint,

because of lack of sufficient knowledge Or informa- .'

tion to form a belief, Defendant neither admits nor

Answer ; ’ i a oe 18a

denieS~same, and therefore leayes Plaintiff to his

proof, v

15, Answering paragraph 15 of said Complaint,

Defendant denies each and every allegation contained

therein except that Defendant has received a copy | |

of the decision described in the Complaint as Ex-

hibit A to which decision reference is made for. the

contents thereof, , Ff

—

: 16, ' Answering paragraph 16 of said Complaint,

Defendant denies each apd every allegation’ contained

therein except fhat Defendant has received a copy

of the letter described in the Complaint as. Exhibit

B to which letter reference is made for the contents ©

thereof. z

WHEREFORE, ‘Defendant prays that this Court

deny the relfef prayed for in said,Complaint a

dismiss said Complaint.with costs to the Plaintiff.

CROSS, WROCK,’ MILLER-& VIESON ,

By: WILLIAM.A. COUGHLIN, JR: —

Attorneys for Defendant

~- Business Address: . .

4200 Penobscot Building

- Detroit, Michigan 48226

a OF COUNSEL: “s

. FRED R. EDNEY

Assistant General Counsel

' Reynolds Metais Company

6601 West, Broad Street

Ri¢hmond, Virginia 23218

Dated: June 20,. 1968.

—*

Interrogatories to Defendant - ae

_INTERROGATORIES TO DEFENDANT

(Filed, June 27, 1968)

NOW COMES the plaintiff, ROBERT KENNETH ? :

DEWEY, by his sig eae ll Vander Veen, Freihofer é

fo the I to be answered under oath within ce

15 days in accordance with the Federal Rules of

Civil Procedure: -

1. What is the manufacturing function of the

Reynolds Metals Company, plant located in the City

-of Wyoming at Beverly and Porter Streets, S.W, ?

(Please provide a more comprehensive description

of the plant's manufacturing function than simply

that it produces “aluminum sare buona —_ "alu-

‘minum billets").

2.. How is the output production of the plant

measured for any given unit of time? (That is, in

dollars, sales volume, number of units produced,

. etc. pér month or per year or per six month period,

etc. )

i one

a DG ~: ; :

3. How are the’ output requirements of the plant,

described in the previous question and answer, de-

fined,. i.e. if output production is in number of units ~*

produced, is this for all departments, one particular

se ca ta etc. ?

“Ae bathing the period from 1960 through 19665,

_ inclusive, who were Reynolds Metals Company's

principal customers with reference to the production —

_ of the plant in the City of Wyoming, Michigan?

5. Please’state the output requirements these

customers: imposed upon the Reynolds Metals’ Com-

; pany plant in Wyoming during; the years 1960 ter Sugh

? ’ cd

. “"s P 7

* * .

: ’

Interrogatories to Defendant | a 20a.

1966, inclusively, in numbers of units produced by

the Wyoming Plant, sales volume,” etc.

6.- Te the period 1960 EO 1966, in-

clusiyely, please state the number of employees

employed at the Wyoming Plant of Reynolds Metals

Company for each ages Sih mentioned,

7, Durirg the Dota 1960 through 1966, in-

clusively, please state the number of die repair- |

men or other employees qualified as die repairmen —

employed by the Wyoming plant and state the dates’

of such employment. “

8. ‘During-‘the period 1960 through 1966,. in-

clusively, state the number of employees required

to work overtime and the date such overtime was

required. 7 say ; +.

9. When,were the die repairmen, employed _

af the Wyoming plant, first required to work over-.

time on'a regular basis? (Sfate the dates of such

overtime and the number of.die Fepsirmen, required

to work overtime. ) rN a

NACA

, 386, ‘When’ was. compulgory overtime begun on

a plant-wide basis?

‘ ‘ _ fs

11.. What was the reason that compulsory over-

time was scheduled on a plant-wide basis-at the time

answered in the Seer

y ey What ate the job- skill ponents of a

die tepairman”,

13, How do the die repairmen employed at the

Wyoming plant of Reynolds Metals Company obtain

their qu@lifications, experience, or training? |

———

——

basis.

Inter rogatories to” Defendant | ore 2la

14; What seaeu of training is required for one |

to become qualified as a die repairman suitable for

employment in the Reynolds Metals’ ‘plant in the City

of. i cari ?

ee Please describe. ‘the naturé of rae work re- -

qdired of a die repairman at the Wyoming plant of

Reyno olds Metals iat

{ ;

16. Was it necessary for die repairmen to

work overtime at any time during the period 1960

ee 1966, inclus sale ?

17. If the answer to question 16 is in the af-

firmative, please state the reason that said die

repairmen were required to work on’an overtime.

18: “With reference to paragraph 11 of the de-

' fendant's Answer, . please state the source of the

information upon which defendant: relies in stating _

Plaintiff told felhow employee Zagman prior to

August 28, 1966, that Zagman was not to serve as

is replacement on any further occasions."

19. Please give the names, addresses, and

job titles (if employees) of all persons defendant

will call as witnesses in its behalf.

faa, .

20. Please state the name and address of the

employee or employees directly in charge of the

Wyoming plant during the period ce ———— 1966,

inclusively. aa } ;

21. Please state the names and addresses of

“all supervisory personnel in charge of the die re-

pairmen during the period 1960 through 1966, in-

clusively.,

j Interragatories to Difendant : 22a

22. Who séheduled overtime when overtime.

was deémed necessary ‘during the period 1960 through,

1966, inclusively ? (If more than one employee,

please state’*the names ‘of all such employees and

their dates of employment when in charge of. schedul-.

ing’ such overtime.) * 9

sy 33, With reference.to question 22, please state ¢

the names.and addresses of persons in charge. of.

scheduling ovértime only for the die repair section

during the period 1960 through 1966, inclusively,

@ - if a,different person from the person in charge of

scheduling, overtime as set forth in ‘the answer to

\ * question 22, ;

A ‘ 24. What is os defendant's reason for refusing:

to find substitute employees to work overtime on ee

| \ Selgioss beliefs? ©

‘ j ° if

25.. How many. die repairmen-were discharged

- during the period 1960 through 1966, inclusively, ~”

far refusal to work on | Sundays | because of religious.

a Ree es

26. What’ was the plaintiffs rate of pay mons ty

rate) immediately before his dismissal?

Bis . Please state the average number of hours

per week die repairmen were employed from Septem - :

ber of 1966 to the present date.

28. Please provide a specific and detailed list.

of the fringe benefits provided to the die repairmen

employed by Reynolds Metals Company from se eanra”

_ ber sss eareneh the present date. ‘\

» \ « . Pd

. «,

* 4 3 " ~ °

o~ > ~~" \ £ p

_ Answer to Plaintiff's Inte rrogatories | me 23a

oe i ~ , 2 z ; ; : . / \ ’ aD ’

- 29, Please provide a specific and detailed list.

of all fringe benefits accrued to the plaintiff ith -

_mediately before: his dismissal as eOreee of 1966,.

ie Please state the nature of the arrangement

by which the fringe benefits as described in‘the pre-

vious two answers. are provided. (For example, es

does the employer contribute a given amount toward

- Some particular fund based upon-an employees' rate

of pay; how dre ‘these benefits: determined, and where

are the records of the cumulative benefits for all,

Seperren kept?) er tees be ie

si, Who is présently in charge of the ee

which reflect the information requested in the cipal i

vious three questions ?

a ae _'__1_ VANDER VEEN, _FREIHOFER: & COOK | "

eee By: Peter R. Tolley . :

.- Attorneys for, Plaintiff

$e ht Address: *

950 Union. Bank Building

Grand ‘Rapids, Michigan

Dated: June 26, 1968,

ANSWERS zo PLAINTIFF'S INTERROGATORIES:

: "(Filed August 14, ——

. Defendant, Reynolds Metals’ Company, in answer *

to the interrogatories filed by Plaintiff, Robert

Kenneth ener: LS ae 2 ee

1. Makes alloy: billets from virgin aluminum ers

then extrudes metal to form shapes and tubing.

‘These extruded shapes are theh heat- -treated, if

required, straightened, cut to desired length; in- -

‘ spected, packed and Sissi teased ee:

~ f

”

Answer to Plaintiff's Interropatorjes. | , . &4a

ne ORNS

2, Pounds per month, ° | pp

‘ ‘ 7 j . : .

’ 4 / : ‘

Piet 4, Plant wide--<all departmgnts, nece ssary. to

pr oduc e end product,

SP, cc 4., The.table be Tow is a. ‘representative break

_down-of the distr ibution, of our © ustome r shipme nts-

An:

Le 5

SOA 1961 1966 E

“Automot ive, truc k, truc k trailer § — | 30% 10% -

Architectural, building products oe ee

Indust r ‘al, electrical — : 15 20

.- Aireraft, government and private lO 10.

Railtoad ke 5 se

: -U.S, Governinent | oe 5 15

Commercial domestic | ae ‘Da? SATs

Marine 5 2

‘ #3 Cy

“In L96L our rated capac ity was 2 to 3 million

pounds per month or approximately 25 to 35 million.

pounds per year.

In 1966 our rated capacity was 3 to 4, million

pounds per month or approximately 30 to 48 million

pounds per year. | Re a 3

Ps ae Answered eqder ie: “4,

6. January:, 1960--317 sineney 1964--288.

| January '1961--298 © January 1965-+288 ,

January 1962--344 nari & 1966 --290

oe eecincied sic 7

pre Net 1960--14--1950. SSeonek 1959

dos ta 7 1961--15--1950 through 1959

1962--15--1950-through 1959

1963--13--1950 through 1959

eh A

\vy

\ |

— Atiswér. to Plaintiff's Iver royator hes ” pe .

° ‘ Besa ens

: / 1964--14--1950 through 1959

eo, 1 1965-214- 21950 through’ 1959 ; . ie nce

1966--14" 1950; through #959.

A 2

¥ . ' 9 e ‘

et few egrnpilation of fhe statistic 6 re quire d

ts’ an swe r “thiseage stidn is ercessively burdensome

Howeve ry as éy idénce of the Amount and dtatribution

of ove rtitae during the pe riods,when the: Dewey un+ |

authorized absences oc curred, the following is- sub- as

) mitted® eae. Ite CH ae. . rns ge gp

‘, August 28; 1966--190. of a total e 255. employees:

a in the Plant worked, sf

‘September 4, 1966-- LL wr a total of 253,

Sapte ember tl, ey ahoge of a total of 258.

' There was signitéant wousbltnis scheduled on, '

twenty - -four (24) of thirty-seven (37) Sundays be-

tween January |, 1966 and September 11, 1966, ©

“9, ‘Since Marth 1960 in accdrdan¢e with Section

3 of Article IX of the Labor Agreement, The com-

-.pilation of the statistics required to further answer. »

this question. is .excessively burdensome. As evi-

dence of the overtime worked by die repairmen when-

the Dewey anauthorized absences occurred, ‘the

gisele: is submitted: ; |

A ae 28, 1966+-7 of 11 employees in Die Repair- ;

Mane |

ig September 4, "1966-4 of 11 employees in Die 3

Repairman. ai

_ September, 11, 1966--5 of 11 spinon a Die \0)

| re ee | a ma Dial hart HY Fra Micag

10. shtick March 1960 in accordance with Séction

3 of Article Ix of_the Labor spcitwnsen aes ‘ . e

2 - *, . Pvc ° >

° =

Answer to Plaintiff's interrogatories 26a

- Il. The competitive nature of the business.

Myring late 1965 and early 1966 the Grarid Rapids

a: work échedule increased to such an extent as

fo require work not only on Saturdays but. also on a

- number-of Sundays. ,The production increase was

‘occasioned by an increase in,commercial business

‘related to the increase in the general economy and

by demands from the Vietnamese conflict arising

from the fact that the Plant supplies product to —

prime contractors of the U.S, Government, the. *

. missile industry and the U.S, Government itself,

12. The primary duties consist of polishing,

repairing and revising extrusion dies to produce

exjruded metal of proper contours, dimensions,

and surface conditions, ©

13. Refer to in SUPPL EMENTAL AGREE-

‘MENT dated September'20, 1965, entitled SKILLED

‘TRADES, beginning on page 57 of the AGREEMENT |

between the COMPANY and the UNION which is-at-

tached hereto and is likewise dated September 20,

'" 1965, There are 9 _stéps (in the training program),

of 440 hours each in order to qualify as a Die Ré- -

_ pairman,

14, "Refer to the SUPPLEMENTAL AGREE-

MENT between the COMPANY and the UNION under

SKILLED TRADES mentioned above.

15. See answer to question No.. 12.

° 16. Yes.

17. When other department¢ are héduled to

. work overtime, the services f die repaimmen are

‘also heeded,

Answer to Plaintiff's Interrogatories meri

18. Record of the Proceedings’ and testimony

taken In the Matter of she Arbitration Between — -

REYNOLDS META! S COMPANY and UAW, LOCAL

NO, 277 before “Arbitrator Mark Kahn, on-April 27,

1967,

In accordance with a telephone conversa-

‘tion hs Peter Tolley, Esq. it is our present in-

tention to call as a witness only Robert A. Lies who

was the Personnel Manager during the period with

which the suit is concerned,

20. 1960--William R. Comber, Rlant Manager

1963--Charles C. Hudgins, Plant Manager

(to sabre aaa

21. Ray Call, 9832 Ivanrest Road S, W., ‘Byron

Centey, Michigan; James Goulooze, 229 Lemyra .

S.E., Grand Rapids, Michigan; Benjamin Hall,

1937 Paris S.E., Grand Rapids, Michigan; Gerald

Johnson, 3234 Ivanrest Road, Grandville, Michigan; .

Ronald Newberry, Unknown; Haroid Oleson, Un-

known; Henry Wilcoxson, 1453 Harmon Lane, Jeni-.

son, Michigan.

22. All supervisory personnel, ;

23. Supervisors shown in-answer to question

No, 21. io

_ 24,° If one were to suggest that the Company

could take one further step of accommodation, by .

the Company obtaining a replacement for Dewey,

it is the position of the Company that this could not

be done without undue hardship on the conduct of

the business. Specifically, the obligatory overtime

clause in the Labor Agreement was hard won in con-

‘tract negotiations. Such a clause was necessary at

> as =

’ Kes

Saal

a ae,

P . ° Si

newer to Plaintiff's Interrogatories 28a

his’ Plant in order to enable the Plant To be worked

six and. seven days when customer demands required,

“ie os Plant could not beworked overtime’ when

necessary, the ¢ pba otic nature of the business

would require the Plant to be located elsewhere

* where it could compete with its industrial competi -

tors such as Alcoa, Kaiser, ete. To remove the

obligation of getting a replacement from Dewey the

Cc ompany would waive the compulsory part of the

obligatory overtime clause and would in effect re-

lieve Dewey of his obligation to work overtime. If .

such were done for Dewey, As an areammodation,;

the same would have-to of bone for other employees

who. so requested relie(/for various reasons in order

. have impartial administration of the contract.

lo thereafter refuse others the same consideration

is obviously unfair and would result ultimately in

an arbitrator directing that all be treated the same

as Dewey--i.e., the Company obtain the replace-

ments, This then would effectively relieve all other

employees of their overtime obligation and in the

opinion of management render it impossible to op-

erate the Grand Rapids Plant.

25.° One.

26, $3, 4520,

27. 44.3 average hours pet week,

28.. See the following attached books:

-(1) AGREEMENT between Reynolds Metals

Company,’ Grand Rapids, Michigan and

~. 4 the International Union, United Automobile,

-Aerospace and Agricultural Implement

Workers of America UAW-AFL-CIO and

.. Local 277 dated Septemher 20, 1965 and

referred to in the affiswer to question No, 13

—

Opinion Denying Defendant's

Motion to Dismiss ay 29a

(2) YOUR REYNOLDS GROUP INSURANCE

PROGRAM- - Hourly ia decay ’

(4) ‘Re ynolds Metals Company PENSION PLAN .

(1966). von a

(4) Reynolds Metals Company SUPPLEMENTAL

‘UNEMPLOYMENT BENEFIT PLAN. (SUP-

PLEMENTAL VACATION and BENEFITS

PLAN was eliminated prior to. 1965 Agree-

- ment. )

29. None.

30.. All benefits are paid for in full by the Com-

pany; the benefits being détermined by the contreetua])

- plans shown under juestion No. 28, the records tyr

which are kept at the Grand Rapids Plant.

31. Gordon L. Fox, Personnel Manager.-

1s/ WILLIAM A.COUGHLIN, JR.

A ‘Attorney for Defendant,- Reynolds

Metals Company ° ;

4200 Penobscot Building

Detroit, Michigan 48226 <a

965-8135 os

OPINION DENYING DEFENDANT'S

MOTION TO DISMISS

(Filed October 18, 1968)

This is an action arising under Title, VII of the

Civil Rights Act of 1964, 42 USC £2000 (e), which

provides, inter alia, for relief against religious

discrimination .in employment,

Opinion Denying Defendant's ;

Motion to Dismiss aes 30a

, Plaintiff, Robert Suney, was smanicmas by de-

fendant from July 14, 1951, until September 12,

1966. Dewey held a number of jobs with’defendant;.

at the time of his termination he was employed as

a die repairman. Since 1962, plaintiff has been a

member ‘of the Reformed Church, and, consistent

with his religious beliefs as a member of that church,

he has refused to work on Sundays.

In 1960, a new labor- -management agreement

was executed between the UAW-AFL-CIO and de-

fendant Reynolds Metals Co. That agreement pro-.

vided that the company could schedule compulsory

overtime work, including Sundays. This provision

was carried forward in the 1965 labor-management

agreement, which was in effect at the time of the

termination which is the basis of this action. —

From 1960 until late 1965,, the compulsory

avertime provision was not exercised and the tom- a,

pany functioned on a five-day work week schedule. ©

Late in 1965, the defendant began scheduling Sunday

overtime, and ina bulletin dated September 20, 1965,

the defendant agreed to allow employees to be re-

. lieved of Sunday work if poe obtained a qualified |

re vo arse ah /

Dewey was scheduled to work on August 7, 1966,

and’ August 14, 1966, both Sundays. Defendant al-

leges that, at plaintiff's request, a fellow employee

worked as his replacement under the provisions of

the bulletin dated September 20, 1965. However,

. Dewey did not report for work on August 28, 1966,

September 4, 1966, or September 11, 1966, all

Sundays, having previously made it expressly known

to the defendant that it was against his religious be-

liefs to work on Sundays and that he would not pro-

cure a substitute because it was his belief that if

'G)

Opinion Denying Defendant's .

Motion to Dismiss .- } 3la

it was not right for him to work on Sundays, it would

not be right to encourage another to work, regard-

less of the substitute's religious beliefs. Plaintiff

said that the company should obtain a substitute so

as to accommodate his religious beliefs.’

The Septetnbvas 11 absence resulted ina third |

v@ itten offense and plaintiff was terminated pur-

suant to Company Rule 11. Believing that he had

been discriminatorily discharged because of his

religion, plaintiff filed a grievance to this effect,

in accordahce with the provisions of the 1965 col-

lective bargaining agreement. The grievance was

processed through various stages of the grievance

procedure and was decided adversely to the plaintiff. |

An arbitration hearing was held April 27, 1967, and

in an opinion and award dated June 29, 1967, arbi-

trator Mark L. Kahn decided against plaintiff.. At

the hearing, plaintiff was represented by the union

in the persons of the International Representative

and the chairman of the bargaining committee. He

was not represented by an attorney, although the

company was. A post-hearing brief was filed by

the company, but no brief was filed by the union.

The arbitrator's decision was based in part on

"the fact that a grievance protesting the discharve

of Knight [another employee] in August 1966 for re-

fusing Sunday work.on-religious grounds was later —

withdrawn [by. the union]."" (Arbitration award, at

8.) i |

Another reason given was the finding of the

arbitrator that ''the agreement does not permit a.

regular and continuing refusal of all Sunday work

on religious grounds."' (Arbitration award, at 8.)

Opinion gadis Defendant’ s

Motion to Dismiss = Teg | 32a.

Plaintiff thereupon filed a similar ‘charge with

the Michigan State Ciyil Rights Commission.’ The’

Commnis’sion found that there were insufficient

grounds upon ich to issue a compisint against’

defe ndant. AN

Plaintiff then filed a charge with the Equal Em- —

pfayment Opportunity Commission alleging that he

had been ‘discriminated yee because of his re-

ligion. The Ghmnimis sion investigated the charge

and\determined that there was reasonable cause to

believe that the employer had violated the provisions

6PTitle VII. The Commission, unsuccessful in its

attempts to obtain a conciliation agreement, noti-.

fied the plaintiff of his right to bring a suit under |

Séction 706 of’the Act. This suit was instituted on

ay 31, 1968, and it is now before the court ona

Ace filed by defendant to dismiss the complaint

i the ground that the plaintiff, by pursuing the

grievance procedure under the collective bargain-

ing agreement, had made a final, binding election

of remedies and is therefore precluded from main-.

taining a suit to enforce his rights under Title VII.

CIN

The relevant legal issues easily divide into two:

(1) whether by pursuing the grievance procedure to

a conclusion, plaintiff made an electfon of forums

which now precludes his suit in this court; (2)

whether the constitutional guarantee of freedom of

rgligion permits this cqurt to review the arbitrator's ;

decision or make a decision on the merits, Each

of these issues will be discussed in turn.

Defendant argues that by pursuing his remedy

under the grievance procedure, plaintiff made a

binding election of forums. Defendant relies on .

— es

Opinion Denying Defendant’ s ar 4 =

‘Motion to Dtsmiss _. ' 33a

Bowe'v. Colgate-Palisolive Co., 272 F. Supp. 332

(S.D. Ind, 1967), which granted a motion to dismiss

a case involving a disc harge for alleged improper ;

discrimination based on sex. That court said at

pages 337-338:, |

5 'It_is also the belief*of the court tha t the

ees |, employee should not be ‘permitted to proceed

Ny f on the same allegedly wrongful incidents both

Pa ' jin the court and pursuant to his contractual |

remedies,”

The reason for-this requirement of an eléction

was that "it would be inequitable and unconscionable :

to subject the defendant Colgate to two series of +. ~~.

extensive litigation, | one series in this court and

then another series under the labor contract. " Id,

ai +366- 73

The second case relied upon by defendant is. - ’ f

Washington v. Aerojet- -General Corp.; 282 F. Supp.

517 (C.D. Cal. 1968). That case involved: a charge

of racial discrimination, and the court refused to.

( go ag far as the court in Bowe, supra. In Wash-

ington, a settlement had been redched between the

union and the company. prior to arbitration. The

court held that once that settlement was accepted

by both sides, the employee would be precluded from

continuing with any court action under-the Civil Rights |

‘7 , >

Both these cases are distinguishable from the

~ case at bar. The Bowe case dealt with alleged dis-

crimination on the basis of sex, whereas this case

‘deals witha discrimination-against‘the freedom of

religion, one of the most cherished and protected

constitutional rights. Washington involved a settle-

ment agreed to by both sides, a far differént situation .

t *

“Opinion Denying Defendant's

Motion to Dismiss -° ot eae s4a

than is presented in this case.” Both decisions are

now on appeal, |

In addition to being distinguishable, these cases

, Should he critically analyzed to dete rmine whether

the ir reasoning is valid. The reasoning given by

the Bowe court itself argues against the decision in

that case aa

"The court finds a fundamental difference

between a claim for the violation of a collective

bargaining agreement and a claim for the vio--

lation of the Civil Rights Act of 1964, The

Jjatter is a’ statutory embodiment of constitu-

tional rights that all persons are entitled to

enjoy, while the former has’as its primary

purpose the maintenance of industrial peace ©

between labor-and management. It is the be-

lief of the court that an employee has the right

+. to come before the Court and assert his right |

-. under the Civil Rights Act of 1964 without re-

gard to any:contractual remedies also avail-

able to him. 2/Z F. Supp. at 337. -'

The doctrine of election of remedies has tra-.

ditionally been applied in'cases where the same or

_ nearly identical issues were being pursued in two

forums. See, e.g.,. Penn Gen. Cas. Co. v. Com-:

monwealth of Pa., ex rel Schnider,- 294 U.S. 189

. (1935). This doctrine has also been used.in the

labor \field relative to proceedings both before an

‘arbitrator and then. before the National. Labor Re-

lations) Board on the same issue. The standards

set forth in.Spielberg Mfg. Co.,.112 NLRB 1080

(1955), \and Raytheon Co., 140 NLRB 883 (1963),

are instructive: (1) The factual issues before the

‘ arbitrator and the Board must be indentical; (2) the

e ‘

2 *.

Ee ee eee .

Gisintos Denying Defendant’ s . at ,

Motion to Dismiss i pete Am tae 35a

Pr as

\ hearing and evidence presented must deal adequately

“with all factual issue 8; (3) the: arbitrator must have :

decided the factual issues involved before the Board;

(4) the hearing-must be fair and regular in all re-

specks; (5) the decision 6f the arbitrator must be in Are

"ac cordance with the law.

-Civil Rights Action. The

Gre. Yactot. to bé emphasized in the instant case

is whether the arbitration hearing dealt with the

game‘issues\that are present in ‘this proceeding be-

fore this court. The issues treated by the arbitrator

were wholly different from the issues raised in this

labor contract involved,

- Article XI,- Section 2, Step 5, stated: a

Pgh

L-

_"The arbitrator shall have authority

to interpret. this agreement for the purpose

of settling the grievance, but he shall have

no.'authority to add f or detract from, or,

change this agreement, ‘or arbitrate wages

| for new ee jobs, of production standards."

\ ;

Under this provision of the contract, the Srbi-

_ trator correctly limited himself to the contract

language. At no.time did the arbitrator deal with

the issues present in this.case, that is,-the issues

relevant to the Civil mugs ‘Act-and the First biaenaes

ment. ‘ |

It is understandable that any union member |

would first proceed to raise any rights he felt were

due him under the contract. Proceeding first

through arbitration is in accord\with federal labor ©

Taw. Republic Steel Corp. v. Maddox, 379 U.S.

650 (1965); United Steelworkers v.\Warrior & Gulf

| Nav. Co., 363 U.S. 574 (1960). Plaintiff should

not be penalized for first proceeding ‘with his con-

tractual remedies through the arbitration process,

"award should not preclude an action in this court ,

eae ee

Qpision De “ey ing De fe ndant's

Motion, to Dismiss: rays Sata oh ce bevel 36a .

Pad

as prefe rred and indéed mandated by federat labor

law. He should retain his rights, to also bring a

civil rights action. This reasoning is’ especially

justified in this case, where the employee was not

‘represented by counsel at the arbitration hearing,

although the company was, and where the union did’

not file a brief on behaif of the employee oe the

| comypany filed a brief on its behalf.

“Under all these cal guees, the arbitration

‘based upon a statute rather_than the collective bar-

gaining agreement. To hold otherwise would. be to

require thé employee to have come to this court.

without attempting a settlement through the con-|

-tractual processes, as preferred by the national

labor:iaw;| plaintiff would also have been required

‘to choose between two-different remedies when both ©

remedies are provided to insure that plaintiff's con-.:

tractual,~ statutery and constitutional rights are

protected. When rights of-this type are involved,

they outweigh the interest of the company - -defendant:

in avoiding the inconvenience and expense of multiple

actions. Thus, a trial should be’held on the merits

. of plaintiff's claim that defendant has violated’ the

Civil — Act.

Hea a aever naar

SS efendant argués-that the First ~insudirient: ;

Pa does-not apply to_labor ‘contracts or proceedings oe

‘thereunder , because > they- are not actions of the Sah

government, ‘but are > rathe#, purely: private activities.

Defendant further argues that even ifthe First io

Amendment could be said to apply to this situation;-———___

the decision of the arbitrator should be final and

conclusive with respect to >_plaintiff's- First Amende |

"ment rights. Nee Stee OME

Toe.

. - —

« - . - a

eee

_ Opinion Denying Defendant's | . at :

" Motion to Dismiss ; oe <3

‘Both defe ndant's arguments are een a ae |

_ the arbitration procce ding cannot be viewed ‘as ©

purely a private one. “The National Labor Relations

Act and the famous T riology. cases!) clearly estab--

lish a federal labor policy. of arbitration as a_ ub- +.

". stitute forum for ‘the public: cpt ated in whichto ©

aispote of industrial disputes. Bae

Since the arbitration tribunal or arbitration ..

' ,proceedings are in many ‘instances a substitute_for.

"traditional judicial remedies, it follows that the .

rules of dive process and other constitutional pro-

tections must extend to the substitute proceedings |

lest the courts, through, approval of arbitration.

. agreements im arbitration proceedings, support

- proceedings which result in the deprivation of statu- .

* tory and constitutional-rights._ If this grievance- —

-arbitration system, which exists asa result of —

+ court approval,:is: permitted to ‘dispose of disputes

. irivolving substantial rights.without heeding consti- |

tutional protections, the courts will find themselves _

supporting «and. giving credence to decisions, which:,

if rendered by the courts would be a violation of

the free exercise of religion clause of the First»

Amendment or some othee_eanential constitutional

? protec y eet Ete

eis

4 -. The courts cannot leave to the arbitrator firtal, |

". ‘decisions regarding constitutional rights. This is racket

-especially true jn the’ instant case, where. the arbi- °

- woes

°° trator was. limited to the’ contract in rendering his

: decision. iar ter) sda) rays

2: (1) United Steelworkers Vv. American Mfg. 0. , v.

onset ea

Ser ‘Warrior & Gulf Nav. C6; Vv. Enterprise Wheel °

. a 363 U,S. an Veawere <<

Opinion Denying Defendant's

Motion to Dismiss : | 38a

This court is not limfted by the contract, but

- also has before it the Civil’ Rights Act and the Con-

stitution of the United States. The congtitutiénal

_ issue is not one which can be‘passed over lightly; -

, as was done by the arbitrator in a sentence of two.

The constitutional issue is whether defendant ef-

fectively denied plaintiff the right of free exercise

of his religion by conditioning plaintiff's right to

‘work on his willingness to forego his religious be-

liefs or to compromise them by encouraging: some-

one else to work on Sunday. An analogous choice

of this type was found to be unconstitutional in

Sherbert v. Verner, 374U, S. 398 (1963), where -

AL Seventh Day Adventist was forced to choose be-

tween following the precepts of her religion and

forfeiting benefits on the one hand, and abandoning.

oné of the precepts of her religion in order to ac-

~ cept work on the other hand.

»\ S

The court at this time is not expressing an ;

opinion as to the validity of plaintiff's claims. The ~

court is rather refusing to allow a decision by the

arbitrator to be tle final one with respect to plain-

tiff's constitutional rights. The right in question,

freedom to exercise one’s religion, is too precious

to require plaintiff to accept an arbitrator's de-

cigion regarding it. Again, the guiding principle

is that.plaintiff should not be penalized and should

not be precluded from his rightful statutory and con-

stitytional remedies because he followed the man-

dated practice under federal law of first submitting

his dispute to the private grievance procedure.

For all these reasons the motion to dismiss is

denied, ;

Dated: November 5, 1968..

p f

‘ -+'/s/

District Judge

‘ >

* ‘

> . Porn eee

, ‘ . °

° .

, ;

Stipulation of Facts ° 9a ;

STIPULATION OF FACTS '

(Filed March 7, 1969) ° :

NOW COMES the Plaintiff by his attorneys,

Vander Veen, Freihofer & Cook and the Defendant

by its attorneys Cross, Wrock, Miller & Vieson,

and hereby mutually stipulaté and agree that the *

following facts are true and that proofs need not be

presented at the trial of the within cause in support -

of the” matters to which the parties hereby stipulate.

l, Plaintiff was employed by Defendant at its

Wyoming, Michigan plant on June 14, 1951, holding

various jobs until he became a die repairman, which

‘was the job he held at the time of his discharge

wey 8 tarred 12, 1966. \

. 2. Defendant is a corporation with its executive

offices in Richmond, Virginia and maintains a "job

type’ plant in Wyoming, Michigan where it produces

on an order basis aluminum extraosions and aluminum’

billets for such industries as architecture, building,

transportation, aircraft and missile. wa. }

3, Prtor to 1964 the plant operated on a five

- day weekly schedule. Because of increased busines?,

during 1964 and 1965 the plant operated on "five

plus" da¥s weekly schedule. During late 1965 and

1966 the plant operated on a-"'six plus" days weekly

schedule utilizing Saturdays regularly and. requiring

numerous Sunday work schedules. Between January

1, 1966 and September 11, 1966, Sunday production

took place on ith lt (24) of pratt bisa (37)

Sundays.

. -—-

4. The production and maintenance employees.

at Defendant's plant (which classifications include |

that of Plaintiff\have been and continue to be repre-

sented by the International Union, United Automobile,

Pee ens

Stipulation of Facts , 40a

Ae rospec « and Agricultural Implement Workers of

‘America (now known as UAW) and its Local 277

“(hereinafter called the Usvion).

5, Plaintiff was at all times during his employ -

ment by Defendant a member of the Union in good

standing.

6. Prfor to the 1960 Labor Agreement betwee n

Defendant arid the Union, overtime was performed

on a basis that was voluntary on the part of each

employee and under such circumstances the gchedul-

ing of production wax made impossible on certain

overtime days. - :

7. The 1960 Labor Agreement and subsequent

Labor Agreements, including the-1965 Labor Agree-

“ment, between Defendant and the Union include a

section giving Defendant the right to set overtime

schedules and make it compulsory for the employees

to work such schedules unless they have a substantial

and justifiable reason for not doing so. The section

in question in the 1965 Labor Agreement is found at

Article IX, Section 3, and reads as follows:

“All employees shall be obligated to per-

form all straight'time and overtime work re-

quired of them by the COMPANY except when

an employee has a substantial and justifiable °

reason for not working; provided, however, »

that no employee shall be required to work

more than twelve (12) cantinuous hours with-

- out his cofsent.”

(Exhibit A attached hereto).

| 8. The 1965 Labor Agreement also provides,

in’ Article IX, Section 4, that overtime work shall

Stipulation of Facts : 4la

ao ° P °

be divided as equally as possible among employees

in each job classification in each department; that

if less than all of the qualified employees in a classi-

fication in a department are needed on other than

a normal straight time work day, the number re-

quired will be scheduled in aceordance with the

overtime chart and when the required number of ~

employees cannot be obtained in this manner, over-

time is to be assigned by the Defendant Employer

among the employees who are. offered such over-

time in the inverse order of their seniority.

9.. In response to a Union objection to the com-

pulsory overtime clause, the Defendant Employer,

-under date of September 20, 1965, issued an in-

terpretation of the Labor Agreement which said in

effect that any employee assigned to overtime could

be relieved from that assignment by arranging for

another qualified employee to ‘replace him. This

system of employees farnishing their own replace-

ments hag been utilized extensively since September

1965. (Exhibit B attached hereto). °

10. Defendant established in 1957 Plant Rules

and.a copy of such Rules was posted in each depart-

ment, Plant Rule 11 includes "absence from work

without reasonable cause" and calls for a warning

for the first offense, a one week layoff for the .

second offense and discharge for the third offense.

Said Plant Rules also state: ‘Depending upon the -

Seriousness of the offense and other factors in thee

_judgment of Management, the Company reserves

the option of imposirig a lesser’penalty than that

indicated:'' (Exhibit C-attached hereto).

ll. Plaintiff has been. a member of’the Faith

Reformed: Church since December 4, 1961. ‘This

church is a local church in the Reformed Church

of America.

, y ;

‘Stipulation of Facts . a ‘42a

12.* Plaintiff never volunteered for Sunday

overtime work from December 4, 1961 to date of

discharge because of his religious beliefs. e

13, Plaintiff did volunteer for overtime work

on, devs other’ than Sunday since becoming a member

of the Faith Reformed Church.

t4. Plaintiff was scheduled to work overtime

on Sunday, November 21, 1965 pursuant to the .

compulsory overtime provisions of the Labor Agree-

ment. Plaintiff refused to work because of his re-.

ligious beliefs; he was given a verbal warning; was

advised of the nece8sity (in Defendant's judgment)

of Defendant scheduling work ‘on a seven day basis .

and was advised that a repetition of his conduct

would lead to disciplinary action under Plant Rule 11.

15, Plaintiff was scheduled to work overtime

on at least five (5) Sundays from January 1966 to

August 1966 pursuant to the. compulsory overtime

provisions of the Labor-Agreement. Plaintiff did

not work on such assigned days but did obtain re-

placements on each of the days in question in ac-.

cordance with the replacement system referred to

in Paragraph 9 above and as more specifically set.

forth in Exhibit B attached hereto.

16. Plaintiff was scheduled to’ work overtime.

on Sunday, August 28,- 1966 pursuant to the com-

pulsory overtime provisions of the Labor Agreement.

Plaintiff ‘refused to work because. of his religious -

beliefs and refused because of his religious beliefs |

to obtain a replaCement in accordance with the re-_

placement system referred to in Paragraph 9 above

and as more specifically set forth in Exhibit B at-

tached hereto. At this time Plaintiff told a fellow

- employee, Jake Zagman, who had been serving as

Stipulation of | Facts “eset? . ts 43a

his ‘oeteveiien that Plaintiff would not request

‘said fellow employee to serve as his replacement |

again, Plaintiff was given a written warning for

violation of Plant Rule 11. (Exhibit D-attached ©

hereto). Seven (7) of eleven (11) employees in

Plaintiff's classification worked on said day and of

a total of two hundred fifty-five (255) employees in

the plant, one hundred ninety (190) worked. .

17. Plaintiff was scheduled to work overtime

on Sunday, September 4, 1966 pursuant to the com-

pulsory overtime provisions of the Labor Agreement; |

Plaintiff refused to work because of his religious

‘ beliefs. and refused becausé of his religious beliefs

to- obtain a replacement in accordance with the re-

placement system referred to in Paragraph 9-above

and as more specifically set forth in Exhibit B at-

tached hereto. Plaintiff was given a written warn-

_ ing together with a disciplinary layoff of three (3).

days for violation of Plant Rule 11. (Exhibit E'

- attached hereto). Four (4).of eleven (11) employees

in Plaintiff's classification worked on said day and

of a total of.two hundred fifty-three (253) employees

' in the plant, one hundred seventeen (117). worked.

charged for violatior of Plant Rule I'l. (Exhibit’G

18. Plaintiff filed Grievance No. 621 dated

September 7, 1966 _—" Caren (Exhibit F at-

tached hereto). é

19. Plaintiff wasecheduled to work overtime

on Sunday, September 11, 1966 pursuant to the

compulsory overtime provisions of the Labor Agree-

ment. Plaintiff again refused to work because of

his religious beliefs and also. refused because of

his religious beliefs to ohtain a replacement in ac-,

cordance with the replacement system referred to

in Paragraph 9 and as more Specifically set forth

in Exhibit/B attached hereto. Plaintiff was dis-

. .

eee”

Stipulation of Facts Hf ae ees ‘ 44a

attached hereto). Five (5) of dlievetn (11) 1 ae |

in Plaintiff's classification worked on said day and

of a total of two hundred fifty-eight (258) employees

in the plant, one hundred twenty-four (124) worked.

. Plaintiff filed Grievance No. 629 which |

was ceciivas by Defendant's Personnel Department.

on September 19, 1966. (Exhibit H attached hereto).

=e Both the Detentant' s ecu: and

past practice indicate that the Defendant cannot

compel an employee to accept an overtime assign~

ment in other than his own classitication. |

22. On and after Kienaat 28, . 1966 there were

two (2) employees who were in other classifications, ©

but who nonetheless were qualified as die repairmen.

(a) One of the aforementioned employees,

Jake Zapman, worked on August 28, 1966

and on September 4, 1966. Zagman did not

work on September 11, 1966 but was avail-

able for work; however, Defendant could not

compel.Zagman to work outside-his classifi-

cation. Cee wears. *

*(b) William Boyer, the second of the two

‘aforementioned employees, worked on August

28, 1966 and on September 11, 1966. Subse-_—

quent to September 4, 1966 but prior to Sep-

tember 11, 1966 he had been reclassified as

a die repairman and worked in such capacity

on September 11, 1966. Boyer did not work

on September 4, 1966 but was avaifable for

work; however, Defendant could not compel

Boyer to work outside his classification.

Stipulation of Facts’ — .° © | “45a

23. “If Plaintiff were to be relieved of the obli-

gation of obtaining his replacement/in accordance

_ with the replacement system referred to in Para-

' graph 9 above, it is Defendant's ‘contention that this

would result in a waiver of the compulsory overtime

provisions of the Laber Agreement. :

; Further, Plaintiff does not by this Stipulation

“intend agreement with or acceptance of Defendant's

contention; but rather, the parties have so stipulated ‘

in order to include that which Defendant included as -,

a defense in its Answer No. 24 to Plaintiff's Inter-

rogatory.No. 24, which Answers and Interrogatories

have hereinbefore been filed.

24. The sincerity of Plaintiff's personal re-

ligious beliefs is not contested by the Defendant;.

25. Plaintiff had at his religious be-

. liefs against Sunday work fo the Defendant prior to

having been scheduled for the above. three (3) Sun-

Seid in 1966, . . .

26, Seten be the discharge of Plaintiff, Defend-

ant had taken disciplinary action as to a number of

other’ employees who refused overtime work assign-

ments on Sunday because of their religious beliefs

when scheduled pursuant to the compulsory overtime

provisions of the Labor-Agreement. The following |

are the disciplinary actions taken: Written warnings

were issued to four (4) employees; three (3) day lay -

offs were given to three 3) employees; four (4) em-

ploy.ees were discharged, nan umber included

two (2) supervisors, Defendgnt/had also taken disci-

plinary action as to other e oyees who refused

overtime work assignments n days other than 5un-

day when scheduled pursuant to the’ compulsory over-

time provisions of the Labor Agreement. ,

Regen Lge Fo ae me er ee

Stipulation of Facts a . 4oba

~, 27.) Pursui ant to the Collective Bargaining Agree -

‘ment be ‘tween Defe ndant and the Union, Plaintiff's

6 pr ievane es pertaining to his three (3) day layoff.and

his discharge were processed’‘through the various

“ste ps. of the Grievance Procedure, finally resulting

in the grievances being submitted to arbitration,

Under date of June 29, . 1967 the arbitrator sustained

the’ layoff and the dise harge and denied the grievance S.

- ‘xhibit 1 attached hereto).

. |

28, During the pe sriod 1960 to 1966-inclusive,

_no employee employed byDe ‘fendant at its Wyoming

plant in the die repair classification refused to work

on Sunday because of religious beliefs and refused

to obtain a replacement in accordance with the re-

_ placement system referred to: in Paragraph 9 above,

- Commission issued a Notice of Disposition and Order

except. the Plaintiff Dewey. - rae

29, On or about Septembey 16, 1966, Plaintiff

filed with the Michigan Civil’ Rights Commission an-

application for the issuance of a Complaint alleging .

that he had been subjected to discriminatory treat-

ment and discharged because of religious beliefs.

‘Defendant was advised of the filing of such applica-

tion by letter from the Civil Rights Commission

dated September 19, Etta, (Exhibit J attached here-

i ; x

| | ad

30... Unde date of December 13, 1966 ‘(mfiled °

on December 1/4, 1966), the Michigan. Civil Rights

of Dismissal stating that the Commission had found

insufficient grounds on which to issue a Complaint .

and that the application for Complaint was denied ¢

(Exhibit K attached hereto), , Ser

‘Under date of January 4, 1967, Plaintiff °

filed a charge with the- rae sai i ata Opportunity

Stipulation of Facts 277" ee .” &lal

Commission alleging discrimination on the basis

of religion, (Exhibit 1, attached hereto), The charge

was served on Defendant on. July 19,°1967

32, Under date of January 5, 1968 the Equal:

. Employment Opportunity Cofhmission, notwithstand-

“ ing the recommendation of-the .Regional Director of

the Cleveland, Ohio Regional Office that the Equads |

Employment Opportunity Commission fintl no prob-

able cause, issued a letter to Defendant Employer —

stating that the Commission had determined that-

there.was reasonable cause to believe that Defend-

ant Employer had engaged in unlawful employment

practices under Title VII of the Civil Rights Act of

* 1964, agents. M attached hereto).

33, Following conciliation efforts ‘by ‘his Equal

Employment Opportunity Commission, said Com-

' mission in a letter dated May 3, 1968 advised Plain- °

tiff of the failure of conciliation efforts and notified

_Plaintiff that-he could within thirty (30) days institute

“a a civil action in the: appropriate Federal Court al-

leging an unlawful employment practice. Within

thirty (30) days after said letter, Plaintiff com-

menced this action. :

34, The foregoing Stipulation is intended to:

cover all facts éxcept those. relating to Plaintiff's

alleged damages. If the parties are not’able to

» stipulate-as to such alleged ‘damages, there will’be .

| a further hearing covering the matter of damages.

Respectfully sdunitied,

VANDER VEEN, FREIHOFER & COOK

By Peter R. Tolley

Attorneys: for Plaintiff

‘ 950 Union Bank Building

Grand Rapids,’ es a hii

454- pak

Dated 3- 15-69

ae 965-8135

Trial Exhibit A Sere ie ae Si 48a

CROSS, WROCK,. “MILLER & VIESON

By William A. Coughliq, Jr. - !

Attorneys for Defendant™,

/ 4200 Penobscot Building =

Ang

Detroit, Michigan 48226 .. ‘

WSs Nop oa a ee) i

OF COUNSEL: ~ 3

‘Fred R. Edney, “Esq. — -

‘As sistant carat Counsel > -

Reynolds. Metals Cothpany er ge

6601 West Broad. Street > ea eae

Richmond, Virginia. 23218 j

TRIAL EXHIBIT A

: Article IX

OVERTIME PROVISIONS

Section Pe :

(a) All work performed $1 in excess of eight (8)

hours, in any twenty - -four (24) hour period, or all

work performed ‘in excess _of forty (40) hours in any ©

one work week shall be pafd for af the rate of time

and one-half. .

(b) Double time and one-quarter shall be paid

for work performed on the holidays enumerated; in

Article X, Section l.

(e Time and one- If shalt "e c paid for work

| (d) Double 1 time Shall he paid for work per-

formed on gina ren ber, Ron py

‘(e) Exception to the. above sub- paragraphs (c)~

‘. and (d) shall be made. where contirfuous operation

Trial Exhibit . ieee 2 Ne ae

is “necessary, On the seventh ‘consecutive day wol ked -

. within a work week, dovigle -time shall be paid for .

work performed on the seventh day. Time ‘and. one-:

half shall be paid for all work performed on Sunday.“

, Hotiday hours shall be used in computing time for

overtime if jan employee would otherwise have been.

scheduled ae work if the holiday had not vega c

' Section 2 the event premium time is appli-

cable to the same hours worked under any ‘two or

more provisions of this Agreement, only. the single

highest premium rate shall be paid, . |

. Section 3. All eee ree shall be obligated to

‘perform all straight time and overtime work re-

quired .of them by the COMPANY. except when an »

employee has a substantial and justifiable reason

for not working; provided, however, that em-

ployee shall be’ required to work more than twelve

(12) continuous. hours without. his consent. ai

Section’ 4, “Insofar : as is. practicable without™

" reducing the efficiency of the plant, overtime work:

“in each job classification shall be divided as equally *

asy possible among the employees of each department

within their job classification. The distribution of

overtime opportunities shall me carried out in the

following manner: ania ae Tee : )

“ ty (a) ss beandinne in any classification is to be

worked beyond the end of and continuous with his

shift on a normal straight time day, the opportunity

to perform such work-shall be offered, in accord-

ance with the overtime chart, to all employees.on .

that. aime shift: in that classification within that_de-

partment who are qualified to perform the work and

who are present and available. If an insufficient. .

number of such employees accept, the offer of such

rep ras

Youn, A dant

-,° quired, number Pie ‘employees shall be selected, by

Trial Exhibit a De ep Sige in eee

OTN cee ae . tin ;

overtime, ‘the ‘required number of ‘employees shall

be selected by the COMPANY from #mong such em-

ployees in the inverse order of their seniority.

* (b) fr a an employee in any classification is tof

be worked prior to the start of his regular shift but

continuous therewith on’ a normal Straight, timé day, «

the oppertunify to perform such work shall be ‘offered,

in.ace ordance with the overtime chagt, to.all em- A

playees' on that same shift in that classification re

within that department w who.are qualified to perform és

the work. If an insuffycient number of such em- .

ployees accept ‘the offer of such overtime, the re-

—

the COMPANY*from among such employees in the f .

' inverse order’ of their seniority. : : ¥

the above procedure, other employees are needed

to perform any work’on an overtime basis‘on a

pormal straight time day ina classification within _

’, départment, the COMPANY will attempt to obtain

, sif{ch additional employ.ees by offéring such overtime

work,+in accordance with the overtime chart to the

other empdoyees Within that classification in that

department who are qualified to perform such work,

unle s it.ig clearly impractical to do so. Where

' the foregoing procedure is clearly impractical, © +

such overtime work will be offered within the Pro-

duction Department, to qualified employees in the

applicable Line of Progression from those employees

who are present and available. ‘Where the foregoing

procedure is.cleangy impractical in departments

other than thé Production Department, such over-

tim®@ work will be offered to: qualified employees

within the department who are present and available.

If sufficient employees are not obtained in that man-

ner | the COMPANY. may select any gualified employee

to perfarm such work. erie

_armmpemamtt 0 sy

~ ficafion within a departenrcnt who are-qualified ea ee id

‘pe ‘eTorm_ the work aré needed fa work on an overtime ;

: basis oO rother than a normal straight time day,, ‘the

-CO ANY will schedule the needed number.of em-

_ tain a qualified’ replacement by offering, in accord-

. to do 60. Where the foregoing procedure is clearly

Trig ehibit A ots g ie a

? eae ia When lene thin all ‘the employees ina clagsi-,

‘plo¥ees’ who are qualified to perform such ‘overtime ‘

work in: accordance with the overtime chart. * Such

schedwle shall oe posted not later than the Thursday - |

work-day of the Week jnvelved. If an employee. sched- /f#

uked_ to work such overtime. notifies the COMPANY .

' prior to 5:00 P.M. Friday that, for a substantial he

_ahd justifiable reason, he would prefer. not to work |

such overtime, the COMPANY will attempt to ob-

ance, with the overtime chart, the work to other em-

ployees within that classification’ in’ that department

' “who-as’e qualified to perform the work but who had

not been scheduled to work such overtime. Ifa cf

qualified replacement is not obey the required

number of employees shall be selected by the COM- = ~~

PANY from among the. employees who were offered:

such overtime in the inverse order of their seniority. .

(e) If employees are needed to work overtime

on other ‘than a notmal straight time day who have

‘not been obtained- under the scheduling and replace-

‘ment process set forth in (d) above, the COMPANY: -

‘ . will attempt to obtain the needed employees by of-

fering: such vertime work, in accordance with the __

. overtiine chart, to the employees within that classi- <

fication in that department who ate qualified to pert

form such work, unless jt is clearly impractical

impractical, the COMPANY may select any quali-

fied etnployee to pérform such work.. — . y,

(f)* When all employees within a cla$sification

‘jn a department have in scheduled to work over-

time on other than a normal straight fime day, or

i *

Trial Exhibit A ; pnp zy ‘>, Sen

in cire umstances s arising from inexcebid absentee-

—2s: . ism of employees schedules to work overtime on

? . such/a gay, thé Lied ahead set forth in (d) and (e)" -

above iar not apply. ‘SS.

i) If a vac ancy occurs that creates overtime,

employees within the élassification who are present

s Geert in the plant, where said vatancy occurs”

will have first chotce at said overtime. -

and ja

If it shall biotenrs necessary to call an’ employee. :

6 from outside’ the plant those employees within the

c ‘las$Sification in whch. ace be .

a " ealled- in accordance with the overtimé rt.

; : ection 5i— “Hean-employee who should have

—been Sein overtime under the provisions of: Sec -

tion 4 is overlooked and if the work which such em-

©ployee would have performed is actually performed

at, overtime rates: Ty eee “

- P

a a —s

a (a) by an employee not. in fhe same classification

as’ the ovérlooked employee, the overlooked em-

f ‘ ployee “shall be paid the amount he would have re-

+ ceived had he’ performed such work,

(b) by an employee in the same classification

as the overlooked emplovee, when the overlooked

employee brings the matter to the attention of the

‘COMPANY, . the COMPANY will offer such employee

the next. available overtime within his classification *

if he is qualified to do ‘such work and in the event

the COMPANY fails to offer such employee such’

“overtime the COMPANY will pay the employee the

amount such employee would have earned:had the

COMPANY not overlooked’ such employee the second

time. é oO

Se Wea 53a

‘Trial Exhibit B

Section 6. The COMPAN® will saa skis as wie °

post each week the overtime charts for each defart-

ment showing the relative positions of the employees

with respect to the overtime worked. and/or charged.

Section 7. Any employee whoris catled in be-

fore his regular shift for work continuous with his &

regular’ shift: shall not be sent home prior to the a

end of his regular shift, ..

Section 8. The COMPANY will not change the

present established shift schedules without giving

at least forty- eight (48) hours prior written notice

to thé UNION of the reasons ‘therefor;, provided how -

. [vever, that the COMPANY may not, without the con-

sent of the UNION, change the.present established

shift schedules more than on® (1) hour earlier or

later than the present established shift schedules. .

- When operating conditions make it necessary. to |

‘change the > schedules of any employees, the shift =

starting time for such employees shall be uniform —__.

for the entire work wgek and such employees shall

be paid the shift differential applicable to the es-

- tablishéd shift schedule in which the muajarity of -

such employees" time is worked,

TRIAL PRR OB i ea

oy September 20, 1965.-

wee a Oo Oe

‘Chairman, Negotiating Committee . oak Pi ee

local 277, UAW-CIO-:.. - B . ' Sal la

Grand. Rapids, Mich. | aa

“

‘Dear Mr., Sella: '

.@ At the request of the Committee, of which you

are Ghairman, we are clarifying the Company's

‘:

Trial, Exhibit B ce . ei oR me, 3 ae baa:

sf é

} position r8garding ‘the qeanings of certain” part of

the ¢ ontract agree »dsto ouriag recent contract negotia-

: tions. f ee . os ans Ore fe

| ART ICL E 1X, Section 3, “OVERTIME, PROVb-

_\ SIONS. The COMPANY. will relieve an ém-

| ployee of the obligation of performing overtime

work under this Se ‘ction unde r the following

- conditions:

i @

¢ % (a) The employee furnishes a quali-

fied: replace ment to perform the: scheduled

‘ove rtime. ‘%*. ©

. (b) Guestions of qualification will be «.

determined by the Foreman. as : :

¥ car

“i ~{c) ‘The employee working asare--

Pee ee will receive the rate os the job ~

performed. |

ARTICLE XIV. REDUCTION OF. FORCE.

and :

ARTICLE XIX. ‘PROMOTIONS AND FILLING

ae, WACANGIES. d= |

o ° o % po

The COMPANY considers cee employees

Ww thin a Line of Progression,to, be eligible to be

trained to perform any job, that they obtain under

_ the provisions Of. the above Articles, within that —

Ling of Progression unless otherwise declaréd un-

‘qualified for such training by agreement between

the COMPANY and the UNION. Training of em-

ployees in the Production Department Pool classi-

fications will be limited to the lowest direct succes-.

sive step, in a Line of Progression.

A . ° ¥

Trial Exhibét B ’ - ee brio ee 5 oie 4 ae .

_ SUPPLEMENTAL AGREEMENT .

Bae Concerning: SKILLED TRADES dted.. Kev eo ee as

6 _ day of, semana Lee

Paragra h V: “The COMPANY considers that eee ¥ hee

employees ‘in the “Mxchanical Maintenance, Electri-. — . ow

cal Maintenance, Die Repair and Die and Machine

Shop Departments shall not be subject to, the pro= */

; vision restAicting them from jab rights outside their oe | ae

aN respective Lines of Training Progression until they .

their regpective: -Line of. Progression, or its equiva-"

: lent. sexperisnce: ees eke a pe i ioe

. . = ° St

\ ‘ - ° e 4 e!

‘i? 4 * * «

, ‘eS

, _, PERSONAL TIME © .

ree Ge COMPANY'S position regard ing the use of, |,

‘personal time by emiployees for drinking coffee or

eating lunch, fruit, etc., is as follovés> - tty

In Benerel, ‘such activities are restricted other

occurred, ard if. it ‘does. not interfere with their

signed: work. - Large groups or gatherings of .em- P

‘ployees participating. in the’ above mentioned activi-

a ties’ will be construed to mean a violation of th

under standing with the UNION weal will be dealt t with

on an.individual basis. ae y seer

EP. BR ee wery wey

REYNOLDS METALS. COMPANY

-.C,. C. Hudgins a

Plant.Manager é .

Trial Exhibit C- tt) Ae eS hat 7 pe

eee 0) - . eT RIAL EXHIBIT C-* ree

evised Piant Rules . wEffective ‘March 15, ‘195% y . s

REYNOLDS. METALS: COMPA Moe |

Ae ees Grand: aed Plant - -«

Pe res pLant RULES Ree ere es

; dese said few Fecha ENA are discharged "for

cause" _So as to further reduce the number dis- *

chargéd we are listing ‘séme of the commonly’ vias

nized reasons, feeling, that most people want to play »

the game fairly and will abide ‘by the rules. These :

rules and penalties. are established to protect both |

the Company and the Employees. Dependi . upon

. the: seriousngss ‘of the offense and other fadtors in

the judgment of Management, the Compaffy reserves

the option of’ imposing a lesser penalty t an 1 fhat in- .

dicated, as “a o ein : : :

. . FIRST OFFENSE--Waining? Hy ag eee

<_JECOND- OF FENSE--Warning.. Ne te OE Sey She:

THIRD OFFENSE: -Discharge. ay On :

Assignment -of was or receipt Qf garnishments. S

-(36)° oe :

‘FIRST OFFENSE--Warning, = s

- . SECOND OF FENSE®-1 Week Layoff:

THIRD OF FENSE--Discharge. ‘

- Horseplay, scuffling,. running or throwing most ort

. things at any time on Company property. a. A at a

: Wasting time or loitering c on ‘Company property | Sie

during w orking hours. (5) _ ;

‘. Gg.

‘Gambling, lottery, or other-games of chance

on Company premistes at any time. (6).

-, Trial Exhibit C } wt hh Pain By aot era. vs x

| AO,

te Seeseeek |’ Misuse or abuse ‘of, property of employees wi ) ;

, + the Company. (10) ee eae ap ay an etd ae , Ee Gea

ed Failure to notify the’Cornpany in advance when

expect to be ‘absent, except it ar emergency; ab--

«sence from work without reasonable caus. (1 MY

. ‘ Excessive absentegism,’ ction tardiness. (13)

Reporting late for work without reasonable

cause, (14) | 4 Wr tapi eee pea

re Making. scrap unnecessafily, careless work-—

manship, or not following directions of supervision,

(20) yee YY

| SECOND eae ak 3

THIRD-OF FENSE- - oy site h deep eee sy

Immoral conduct or indecency. (22)

The making or publishing of false, vicious, or

‘malicious statements concerning any. employee, ;

a supervisor, the. Company or its groducts. (23)

is 7 im 1K i dea :

sil Geen FIRST OFFEN E-* - Discharge:

_ ‘SECOND OFFENSE-- ie ee

reat THIRD OF FENSE-- : 7 :

oe Falsifjeation Of; ariy record.. ¢1)- |

a, Fighting on Company property at. any time. (2) -

¢ ‘Misuse or removal from the premises without

proper authorization Company lists, bluepafnts,

records or confidential information of any nature.

(3) ; |

— ‘Ringing the clock card of another employee. (7)

. ces. output or encouraging reétriction

of output. (8). ee | 2

—_—

e ewe:

53 oe

yy ° 5

a od ° Ay : ae ane

. s . af

se”:

mgr =

s Vw?

: aa

Sn ecient tcaptens Naemcre nine e

‘Deu serate abuse, - misuse, or deliberate de-

or the property, of employees. in eke qnanner. (9)

ye,

Posting ot ‘removal. ‘of notic

’ in any form on bulletin boards. of ather -Company

7 “property at any. time without specifig, a thority of

: Management, (32) et me

Throwing fefuse’ or objects: on. floors,” out win-. *.

dows or. doors, on Company’ peeperty at t any times fi ~

(21s

“

wv | ce SS ty | bef

3 “Creating or contsibuting to unggnitary condi+ -

tions. (30), AT ee SEO Re ca eee’ Curae ae 7

_ Violation of safety vulee and practifes (31)

"Distribution of. any : written Or printed literature |

on Company premises. without written authorization.

(33). |

-. ° ° . :

(34) |

, sigr s or writing

Trial Exhibit PO St pane 5 rn CORR 2

are

struction. of Company property, tools; equipment -

J cates Unauthor ined operation of maghinés, tools. .or or +f '

Squipnedy. | ; road

‘Soliciting. or collecting of contributions for any” :

: purpose whatsoever on Campany pauparty wnat

‘writtep authorization « (35). Sade rey ua yee

Py .

“FIRST Geceuee Swed Layoff.

- SECOND OF FENSE-- Discharge. Reet ab hee et

THIRD OFFENSE-- -

Voluntary absence’ by ddgign or intention. ah)

+ +~

a re F

Ze Ms se ok : ii .

‘FIRST OFFENSE--Warning to: Discharge.

SECOND @F F ENSE- -Discharge® es

THIRD OFFENSE;- — * a

- Reporting: for work under. the. influence of alio- sie

hol ,» when suffering from an alcoholic hangover, ae

>in an unsafe gondition. ATR) Re

ro?)

‘Trial Exhibit Gee a Ay Nees 59a,

| frefiiea to ee orders of Foreman or ‘other - . we | eS

; eames: ‘€15). Sere te Sey, , ae

mort Refusal’ or failure to: do job assi@nment.. we. |

iad work' assigned and fotlow instructions; any yo ee eye

laint may be taken up through regular channels), ;

I ear gs, ; eis We oes ah, eres

re } ‘

Possession of, or drinking of, liquor or any

? alcoholic beverage. either on or off Company pré mi-

ses during shift. (17) i:

Threatening, cutiioletioe. coercing,’ or inte 3

fering with employeés orwith: supervision at any -.. 6S"

Pe Hs. eee - bd | i} -_ CPA? Pees Phot Syn ee i a Be i ee

» time. (24). 5g: mm f° ‘ Ty aye Lae ty 2 ogre

Abusive language to any employee Or supervisor.

SiGe 3 | ee as eras : erry.

“6 ‘Sleeping on uty. 26), eRe, : ee aot begs A

Sabotage* (27) ' ii ae ek eae) JIE hg a

ie alfng of photographs: on Company premises : \

wseentt permission. (28) / :

- Using another's badge or pass, . or permitting |

. another’ to use your badge. or pass to enter or: leave

_ Company. ‘property at any y time. (29). eae ae at

‘Imprisonment resulting i in apeetee of 5 days or

: OTS (37)> OSE Hi

‘ Harborif’. dices ease or condition which may

endanger health of others. (38), *

; -Possession of | weapons on Company premises: ie

at any fime. (39). oe | pe

Entering or leaving, ‘Company. property at*other

| than‘autiérized entrances and exits, of at other

than authorized times. .. eee x A

Theft, or- misappropriation of property of em-.

-Ployees, or of'the Company. . (41). vay

; Reynolds Metals Company’ Bre ee Se

Grand. Rapids. Plant." . |, prey

-Reyijsed Plant’ Rules Eff. 3./15/57

ees 24: nen Stig . #

Parvat Mscbvabest: Ty gat oe tte tae. Oy mee On

s . i | 0 ae

| TRIAL WXWIBIT i

— WARNING NoT IC I,

2, 5 Date: Aug. ‘29, 1966

N. Ame : ltobort Dewgy ; Clock No. 22521 . Dept, 1200

. * Warning i or:

| Chronic’ Absenge Sera | } Gambling on Premises

}A’hrenie Lateness [ |. Defective piece .

¥] Absence without Excuse LJ Leaving Workplace

{ ] Qatting © arly ‘ without Permission — ¢

}1 wating on Job : [ } Horseplay

AL Smoking | int Prohibited |. ] Voor Housekeeping

‘ Areas 4 rt 6 Failure to Obey Safety

7 Dist oonigrsty mn ‘ Rules

{ ] Pnsuherdination General. Conduct.

[ ] Vature to Do Work . (Exptain Below)

ae, Sa So [} Other Oispiain B Below)

{"} Tuder Infltence'of -* . ;

Aleohol . , va Mf Pogis ts, ; ?,

This‘is First §] Second [ Third C Final [J arning

for this offense. Next offense will result in Lay ay {_} Termi-

- tion [}.. . fe

e Remarks: Violation of plant rule No. 11, Absent Audist

28,1965.

0% ; Signed: William G. Clifton

a Union Representative

, 8 Signed@Ray E. Coll

; per is ‘' . *. Company Representative ,

“) Care loxsness | 'E.] Damaging Co. Property. te

. r" ‘ sad °

< . rr ae ‘, Be

_ “aw ‘i : nee at

* L Trial boxhibi me P me Hla

. a, — PRTAL EXUGQIT

er. 9 “4 WARNING.NOTICnN =, &

- 4 ; . Diate : Sept. 6, 1966

Nam: Robert splits a Cock No. 22521 . Dept. 1200

2 te es,

Warning Mor:

os Arelessness —* ] Dawaging Co. Property

, . ‘2 Chronic Absence , 4) Gg linge | on Yremises

~ . “fT _Chronig Lateness _ P] Detecti Work :

Absence without Excuse » ‘J Lesving Workplace

af (juilting, Marly without. Rerinifsion

lo] Loafingon Job. | []} Horseplay

a {_] Smoking in- Prohibited [[] Poor thou « hee pings

Areas “1 |) Ff wlure to Oluy Safety

: [] Dishonesty 1 .- Rules 7° ee

[J Insubardination “CJ Ge ne yal Conduet

CJ Faslure-to Do Work (Explain Below).

Osdered P (f Other (Explain ftelow)

[-] Under Influeneg of a ;

. ; Alcohol 2 . | \

This. is First [[} Second ra Third C) Final [} warning

for this offense. Next offense will result in n Layoff. (_] Termi-

tion X}. . ° ar .

emasie Viokttion of plant rule No. 12, Absent Septem»

i 4, 1966. The above employee is hereby on disciplinary

1d :

off effected September 12-13-14, io.

; o * Union Representative

i ee’ - * Signed: G. H. Johnso i

’ 3 ee Representae

Toad

YRIAL EXHIBIT F

. GRIEVANCE REPORT

es : ; Grievance Ne, 624

‘ y a4 : Se . . ’ :

Departiorvent Nog | 200," ‘Date: Sept. 7, 1966,

aoe ~~ Shift: 3-11

‘Nature of Grievance ; 0

Unfair Labor Practice. .

On Se ptt o, 196p haere Dewey was give ena’

Labor Complaint and a three day suspension for

failing to report -for work on Sunday Sept. 4, 1966.

‘Plant, Rule #11 absence without a reasonable exc use.

The Co, is using this rule‘ag a club inorder to °

forte the people whd rightiously believe that it-#s

against their religious & moral principles to work

gn cia The Cor contends that-this is a normal

scheduled work day if so why the Special Punishment?

. * - es . .

- A man ean conceivably be absent from. work on

any of the other six work days five or six times with

no punishment what-so-ever but if one Sunday is

missed he then becomes-a-special case and is writ- :

ten up,at once. This is no more than discrimina-

tion against these*-men and the’Co. can be cited

under the Federal Law for Discrimination,

° *.

For these reasons we demand that the Co.

withdraw all Labor’ Complaints against the men of

Local 277 for not working on Sundays.

“Mrs. Dew ey should, not have had a Labor Com-

plaint on “the, above date as the Co. did’get a replace-

ment for him in the person of Jake Zaagman who

worked of his own free will eyen tho it was out of

his classi ification and out of his dept.

-¢ , . * ; .

* 27en 22 ~~ » ~ i

se . ‘ y*

: : :

Signed: Robeft Dewey

eat William G, Clifton

4 ii Steward for

. 2 o

Foreman's Comments’

-General Foreman's Comments | # —-49-8-66

Mr. Dewey was scheduled to work Sunday under

the provisions of the contract. He refused to find --

or accept a replacement. When.Mr. Dewey failed

to report into work Sunday, Mr. Zaagman was ask

to work an additional shift due. to Mr. ener. s ab-

sence,

Signed: G. J. Johnson’

General Foreman

3rd Step--9-13-66- S,

. R. Dewey refused*to work as scheduled under

the contract. He had previously been warned that - -

. his excuse was not acceptable. He also refused to

make use of relief proyided by agreement for ob-—

taining a replacement to apne required overtime

work, Grievance ‘denied. = a

R. A. Lies

Trial Exhibit G : ‘ q 64a

TRIAL EXHIBIT G: Ey .

Nanie: Robert’ Dewey. Clock No. 22521 ~ Sept. 12, 1966 ee

ci Neetitereat St ae a - Die Repair -

te ) WARNING FOR =

3 [_].Carelessness ; —_ (_] Damaging Co. Pate

Chronie Absence < . (] Gambling on Premises

{_] Chronic. Lateness : {-] Defective Work

~ R) Absenice without Exeuse [1] Leaving W orkplace :

{ Mi Quitt@ng Marly without Permission

(-] Leatiag on Job f-] Horseplay ° )

("JS Ving in Prohibited (() Poor Ilousekeeping

| va " ars ake ailure to Obey Safety

a es mesty oa ee Rules

[-] In-pterdination "ea General Conduct

pyr ailure to Do. W ork. (fixplain Below)

Orde red’ -O Other (Explain Below) Smee

3 [Under Influence of De Te en a aa

=. --—— Attohiol:. -

This is First [) Second q Third <4 Vinal 0 warning for ,

this offense: Next offense will result in Layoff (_] Termina- ee

*. tion (].

Remarks: Violation of Plant Rule No. 11-—A lent Sept. ;

11, 1966. Discharged. A five day suspension period is speci-

fied in th¢ contract-for filing of any protest.

Signed: William G. Clifton -

! Union Representative

. i pe Signed Gerald H. Johnson

' Company Representative

Trial Exhibit H Sore oe ee ae

TRIAL EXHIBIT H -

PRO LE er. REPORT

REYNOLDS METAL,CO,

Grievance Number 629, : ai

Jd un , Gu26-66_ f

‘Nature of Grievance-- |

ae ‘ 9 | “*

_ I, Robert Dewey protest thé notice of suspen- |

sion given to me for failing to report for work on

‘Sunday Sept. 11, 1966 based on plant rule #11. We

contend the Company is using their rule, in order to

force people to work*on Sunday against their. religious

and moral principles. The Company contends this _

is ona normal work day, if so why the special punish-

ment. A man can miss any one of the other 6 days

"__in-the-week without receiving any punishment what

so ever but not one Sunday is allowed without it be-

coming a special case. We feel this is a clear case

a discrimination on the part of the Company. For

these reasons we _request the. Company to withdraw

the labor complaint (notice of suspension) given me °_.

for not working on Sept. 11, 1966 and restore my ~ “

- sehiority sa Se wi a, |

Received Sept. 19, 1966, Personnel Dept.

Signed: Robert Dewey

Sam Sella’

‘

Se nenen. Line, “¢@ 5

Trial Behibied = + Oba

: TRIAL K XHIBIT 1 ces

Grievanges No. 621, fone. Mark L. Kahn

622 and 629 oS eee ate ‘ 4 Arbitrator

, Receiv ed, Jun 30° 1967 Pe ‘rsonnel Dept. :

-OP INION AND. AW ARD’

ae ated —

tie Fine 29, 1967: 20 eee

fee re ; ARBITRATION | Oh Sieh tase

a ‘ between aed | ;

Resnolds Metals © ‘ompany

Grand Rapids, Michigan

era and— '

s). t. Lawal-No. 257 c : p

: - United Automobile Workers , :

| APL.CIO. oe”

‘Wearing held Apr il 27, 1967

— Grand Rapids, Michigan

_. For the Union ©

~ Appearances: .

- Jacob Webber, Int'l Repres. °

Sam J; — Jr., ( *hairmany Bargaining Committee

W itnesxes: ere we :

- Robert Dewey, Rtievant Seer

Hilbert Scholten, Griev ant’

- Prese nt:

‘Carlton Galor, Président Loeal No, 220 .

Gerald Berghorst, Committee -

‘ William Boyer, Committee

Sw illiam Groogers, Committee °

Arthur J. Verburg, Pastor, Christian Reformed Church

Jamestown, Michigan

A, gy.

‘Prial Exhibit ]1-- | fea Peeks 67a

kor the Company --. | %

Appearances? au to

‘William A. Cougilin, Jr,, Attorney ~*

Witness: ys . me ae

3 <

Robe rf Mies, “Personnel Manager .

Pr esent: ;

Robert E. Daclene | Staff,Asst., Labor Relations,

Richmond, Va. inp | i

John Norman, General Foreman, Extrusions °°

Ray cal Foreman Se sea ;

| (OPINION

: Fhis arbitration is between Reynolds Metals

Company, Grand Rapids, Michigan, ‘and Local No.

277 of the International Union, ‘United Automobile,

AéroSpace and Agricultural Infplement Workers of

America. It takes place under and in accordance ©

with the Agreement between the parties entered into

on. his sietnaias§ 205 1965; and involves three grievances:

-No. 621, dated September 2, 1966, filed by

'*.Robert Dewey”

No. 622, dated September I 1966, filed by:

Hilbert Scholten ,~ yey

‘ No. 629, dated September 26, 1966, filed by

> Robert satis’ FENG Ee

The isgue relates. to the retusal et Dewey and Scholten

to perform any Sunday work, for-which each man °

was given a ‘three- -day sus pension and for seapindd

‘ Dewey was discharged on Séptember 12, 1966.

“The parties; after failing to ‘dispose of these

tiene grievances in the prior steps of their Grievance

Procedure, picked the undersigned to serve as

2 j 5 -"

Trial ExhibitT | Se 68a °

“impartial arbitrator for the se . grievances froma” |

pairel supplied by the F ederal Mediation and ‘Concilia- .

tion Service. Notice of this. appointment was sent

to the p ccanriet Joes on March 23, eee | :

“ie JA hearing was held: in “Orand Rapids on April 27,

Each party had a full opportunity, * duringgthis |

‘aring, to pre sent evidénce and argument. Sub-.

Se ‘quentt¥, in accordance with arrangements estab- .

‘lished at the hearing, each party was accorded an

opportunity to file a post- hearing brief. The record.

was closed as of June ‘2, 1967, upon the, réceipt of

a brief from the Company. No brief was filed by

the Union, PAGE at ts

Background ‘ “ft = r

The Cheney’ s plant in Grand Rapids produces.

aluminum billets and extrusions, Prior to and dur-.

ing most af 1963, the plant operated en’a five- -day :

schedule. w ith’ some employees on layoff. Demand

then increased, the Company started to recall laid’

off employees i late 1963, and’ during most of 1964

and 1965 the Company’ operated "'five-plus"' days per

week with no _employees laid off. *Since late 1965,

in response to still heavier demand for its products,

thé .Company has operated on essentially a ''six-plus"

weekly schedule, utilizing Saturdays regularly and

- also requiring -substantial numbers of. its employees

| to work.on most Sundays. * For example, Sunday

‘ productian took place on 24 of the 37 Sundays be-

tween January I’ and September 11, 1966:

Thé Agreement contains the following. provision *

in Article IX:

. Section 3. Al] employees ‘shall be obli-

gated to perform all straight time and overtime

Trial Exhibit I Apert asi tector Na — ioe 69a. 4:

re ek renutvent of thoes _by the COMPANY ex-

cept when an employee has a substantial and

justifiable reason for not working; _provided, ©

‘however, that no employee shall be required

to work more than. twelve (12) continuous hours |

; Without his consent. :

TE , ; : a)

The phove- quoted provision was ¥irst. adopted by the:

parties in their. agreement.of March 15, 1960, and

_. has since been retained unchanged. ar spaeewak by

the Union during the 1965 contract negotiations to ° -

bcdipieet annie this paragraph was not successful. ~ Bs

“9 The Agreement also provides; in Article IX,

that overtime work should be divided as equally as

possible among employees in each job classification .

in each department; that if less than all of the quali-.

fied employees in a classification in. a department

‘ . are needed on other than a normal’ straight time

work day, the number required will be scheduled -

in accordance with the ' ‘overtime, chart"; and that Se i

(per Section 4 (d). )-- ees |

If an employee scheduled to work such éver-

_ time ‘notifies the COMPANY prior to 5:00

P. M. Friday that, for a substantial and justi-

fiable reason,, he would prefer: not to work

‘such overtime, . the COMPANY will attempt >

_to obtain a qualified replacement by offering,

in accordance with the overtime chart, the’

work to other employees within that classifi- +

Se cation in that- department who are qualified z

_.to perform the work but who had not been

scheduled: to work such overtime. If a quali-

fied replacement is not obfained, -the required "

‘ number of employees shall be selected by the

COMPANY from among the employees who |

were offered.such overtime in the inverse

ordér of their seniority.

pr tee “ sony “ me . » s

5 B oe = 4 = e € . md : ae @ ‘

BS -=° r » *

aX « ; . '

ral bs este I - Se hang ee se - 70a

> te Ae : Pee See pet sk

- On piace 40, 196! >; wahis h is the date af the

‘current Agreement, The Cc ‘ompany « addressed a letter

ae b to the « ‘harro. mm Ot. tre ‘Union! # Negotiating Committe c

th. ut be ‘ran as fallow 8: eee d

's : i * we B a. | ra

; * 2 At the: request of the ¢ fommiitte 6, of which .

s “you are Chairman, we are’c far ifying the.. .. *,*»: be

. > ,g. Company's. position regarding the meanings . 7

q | of ce rfain parts of the contract agreed to ;

yi ' during reeent contr act ne rottations, se at 6

4 Bee eee Janice ‘Sectipn 3 OVERTTIM In RRs ror

:. 1 al “The Cc -OMPANY will re tise ean employee of the . -

eee obligation of performing overtame work undes :

® f ~ this. Sec tion unde r the 4olowing €onditions ¢

$ vat 5 yee : Er.) : oe ee

. ee . 2 tn, fay, The- employee furnishes a qualified: :

‘ are ae t replacement | to perform the scheduled overtime.

ms : ; peat ;

q ieee “(b) Questions St qualific atidn will be deter-

f . Le mined by, the Poreman, ‘ %, * ‘ :

é neering Ro ee Ls e

, a department, and in effect since 1957, contain a ‘list

of 41 kinds.of mise Onduct and a penalty schedule

mea for each kind. No,. Ll ine ludes "absence from work

‘so without reasonable cause" and calls for a warning -

for the first offense, a one-week layoff for the

secdnd offense, and discharg e for the third offense;

The Plant Rules | also state: Depending upon the

spriousnes’ of the offense and other factors in the

Sadgmient

“the option. < of boise a lesser penalty than. that

A “ indicated.

Grievant Dewey has a giniotity dite of June. 2"

> ' 1951, arid was'a Die Repairman. He refused. to work

eee om Pigs Reh sey te wari Farge, \

as.

: “ pemaeN, Pe: ° st @

‘ ate ee ; ae ; : : Q

em le Pe ee m Yo é, ‘° i FY

“Trial _Exhith ee as ee Ye

= =

as sche duled” on Sundgty,, Nove mber ZI, 1965, on

the basis@f his re Kpious badic fs al and lie advised q

the C company at that time that he'would“not work.on

any “Sunday's because of those hetiefs. Dewey was ,

‘given d.ve rbal. warning at thet, time and was advised ~

“that a re petition would lead 16, ‘disciplinary. action

“Sunder Plant Rule No. 11, re gba ig tn

i 4 P ues. ’s pe

“= —-Dewe *y was next SC hedule d for Synday- work on:

Aupust 7 and August 14, 19663 On each of these 5

dates, however; he Was replaced by Jake Zagman,

apparently at Zagman' S initiative, and Zagman was

_ considered by the Company to be an acceptable re-

~pldcement.in accordance with the. terms of the Letter -

. of Interpretation dated Séptember: 20, 1965:" When-

Dewe y was schethled to work on’Sunday, August. 28,

1966, however,’ Dewey told: Zagman not to serve:

again as his replacefnent. Dewey himself refused

to, work on August 28 and was then givena yritten

warning for violation of Plant Rule 11 .-

“Diéwey' 8 net Sunday work was scheduled for —

September 4, 1966, and upon his refusal: of’ this

assignment (and no attempt to obtain a replacement)

he was’ given another written warning plus a. three-'

day disciplinary’ suspension, 3 This penalty is the

basis of his'Grievance No, 621, Dewey was next:

scheduled for Sunday work on September 11,. 1966,

and he was discharged on the following avy after

refusing the as'signment’ (and again making no effort.

to obtain a replacement). This discharge is the

basis of his Grievance No. S295 es

t 2 e

2 ¢

Grievant Scholten has: a seniority date of Octoe 4

ber 24, 1950, °and is a Shape T-ruing Machine Opera-:

‘tor. He refused to work on Sunday,: January 16,

; 1966, because of his religious beliefs, «The Company

then advised Scholten that this particular. absence

THial Exhibit | 72a.

would not be heJjd against him but that this reason

for any future refusal of Sunday workgwould not be

acceptable. Bcholten was next assigned to Sunday

work on April 17,\ 1966. He again refused for re-

ligious reasons and stated that he would not work

on any Sunday. He was given a written warning.

Scholten nevertheless, refused his next Sunday work

assignment on August 14, 1966, and was then given

another written warning plus a three-day disciplinary .

suspension. Scholten then filed Grievance No. 622.

We are confronted with the identical issue in

’ the cases of Dewey and Scholten.” Both grievants

‘have firmly refused all Sunday work on the grounds

a that such work is not: permitted by their religious

beliefs. Boek grievants have also fefus¢d to utilize

. the opportunity provided uftider the Lettds of Inter-

pretation dated September 20, 1965, ‘to furnish (or

attempt to furnish) a qualified substitute. Scholtgp OSS

has never accepted Sunday work at the Company. —-<_|

Dewey acknowledges having done some Sunday work )

for the Company many years ago, before his re-

ligious beliefs took their present form in or about

1961, The principal distinction between the status

of the two grievants is that Scholten’ (as of April 27,

1967) had not. been again assigned’ to Sunday | work

. since his three-day penalty in August 1966, The

Company does not question the sincerity of the

grievants' religious convictions. under which ey

work at the Cortipany. is prescribed.

Position of the Compahy . Ps

The Company maintains that the religious be-

liefs of the grievants do not provide "a substantial

and justifiable reason" for their refusal of all Sun-

day work. The Company emphasizes thatthe griev-

ants are members of a bargaining unit coveted by

- ; ey?

’

Trial Exhibit 1 | Reet Gata

a collective. bargaining agreement under which all

_properly scheduled work assignments are co

sory; that the Company has had to assign

deal.of Sunday work since late 1965 in

_ Meet contractual commitments inv tying both gov-

ernment and civilian product éds; that the Union's

1965 attempt to eliminate ompulsory overtime did

not succeed; and that the Company has consistently

refused to excuse-é€mployees from Sunday work on .

religious grounds. ; .

The ode notes ‘that on January, 16,-1966,

it terminated two supervisors who refuséd to wo

_-on Sundays, and it cites four written warnings

(Dekker, Hatfield, Walthorn, Carlton), three three-

day layoffs (vam Haitsma, Zylstra and Wyn), and

one discharge (Knight), all givéh in and since 1966

in accordance with the penalty schedule for violations

‘ of Rule 11, Knight's grievance protesting his dis-

charge because of his absence from work on Sunday,

_ August 28, 1966, was withdrawn by the grievant and °

Arbitrator Ronald W. Haughton dated June 3, 1965

. (Grievance No, 439), upholding a warning notice.

issued to employee Zylstra because of his absence

from Sunday work for religious reasons on July ¢6

1966. ;

The Company submits that sit Re ora ;

of a replacement system in September 1965 sfteate

to the reasonableness of the Company's application

of the compulsory overtime clause. The Company ~~}

observes that-- tees?

the refusal ofthe grievants to allow the re-

placement system ‘to operate reduces the

position of the grievants in this situation to

d6ne of narrow personal, consideration which

+ |

Trial Exhibit 1 - 74a

cannot be condoned since the grievants are

part of the work force and are subject to the

terms and conditions of the Labor Agreement

Bits xe {Company Brief, -p. 12]

The Company reports that both of the instant causes

have also been the subject of investigations by the |

U.S. Office of Federaf-Contract Compliance and by

the MieHigan Civil Rights Commission and that the

conclusion of each agency is that there was no vio-

- lation of the, respective taws/ The Company asserts

that to'exouse the griévants from Sunday work on >

religious grounds would in fact discriminate against

othér employees. It is the Company's conclusion, ,

based on all of the foregoing considerations, that

the grievances of Dewey and Scholten should be denied.

Position of the Union

The Union contends, that there clearly exists ''a

substantia] and justifiable reason" for excusing the

grievants from Sunday work in accordance with the

exception specified in Section-3 of Article IX, namely,

their religious beliefs which do not permit them to

work on their Sabbath day. The Union asserts that

other employees have been excused from scheduled

work for less substantial and less justifiable easons,

such as their desire to attend baseball’ games, picnics

and wedding anniversaries. In fact, says the Union,

it is not aware of any instances where Rule 11 has

been Applied except to instances involving the religious

beliefs of employees. ;

The Union’ points out that on-many of the Sundays

for which the grievants were given a warning or pen-.

alty for refusing to work, replacements were in fact

available. The Union suggests that if the Company

e |

ys 0

Trial Exhibit I r? % 75a

had wanted to work out the problem it could and

should have cooperated with the Union in obtaining

replacements for the grievants instead of penaliz-

ing these men for their religious beliefs. ‘

As to the arbitration decision of Arbitrator —

Haughton cited by the Company, the Union points

out that Mr. Haughton relied on the fact that the

aggrieved employee in that case "found it possible

to make adjustments and to accept Sunday overtime

assignments from time to time in the past." .In

this case, however, Scholten has never accepted a —

' Sunday assignment and Dewey has not worked on’

Sundays since: ‘his religious beliefs took their pees

ent form in 1961.

The Union suggests that the effect Pr the Com- -

‘pany's interpretation and application of Article IX,

Section 3, in light of the Letter of Interpretation

dated September 20, 1965, is to discriminate against

those employees who seek to be excused fromm as- - ;

signed work for reasons of religion. The Union.

concludes that these grievances should be sustained,

the penalties removed, and the grievants made ite

_ for earnings lost becayse of the improper penalties

imposed on them.

Discussion ® ;

Section 3 of Article IX, whith had béen in effect

about six and one-half years when the grievances

involved in this casegvere filed, makes overtime

work compulsory when it is assigned in accordance

with other provisions in Article IX unless the em-

_ ployee who has been assigned to the overtime work

‘can furnish a qualified replacement, I must decide

whether or not the religious beliefs of the grievants

provide them with an entitlement to refuse all Sunday

eo ©

erovarore Tie. er er erarara

apap ararare

Trial exhibit | ; fe yes Toba

¥ °

work under the “substi intial and justifjable

of Article IX, Section 3-2 Ac orollary issue raised

by their conduct is whether or not they were also

etititled to refuse to attempt to obtain.a qualified

criferia

replacement. —

My first conclusion fs that the grievants were

not entitled to rely upon the ‘substantial and. justi-:

fiable reason” exe ception as a basis for refusing all

Sunday work. The Company resorts to Sunday work

assignments, for which it must pay employees at

double-time rates, ‘only when heavy customer de-

mands appear to leave no practical alternative.

The procedures for assigning such work maximize

the opportunity for individual employees who prefer

not to work on Sunday to avoid such work by first

relying on volunteers. When these are not sufficient,

the junior qualified employees (in'the classification,

within the department) afe then involuntarily assigned,

but even these "draftees" are entitled to furnish :

qualified replacements (who need not be from within *-

the same department). Consequently, when we look

at the situation with some perspective, it is seen

that an individual employee will have to work ona nt bs

Sunday against his will only as an exceptional event.

In my judgment, employees may not flatly refuse to

work on these ‘'exceptional'' Sundays in’view of their

obligations under the Agreement and the Company's

consistent administration of the relevant provisions,

It is worth noting, perhaps, that Article IX,

Section 3, applies explicitly to all straight time

and overtime work" and not merely to overtime

work, Suppose that an employee decided to join a

religious organization with a Wednesday Sabbath,

and that he thereafter refused to work on Wednesdays.

It would be obvious, I think, that the Company could

properly find this employee in: violation of Rule 11;

Trial Exhibit] °°. ei meee 77a

yet, the language’of the Agreernent makes no dis-

tinction for this purpose between straight time and —

overtime work assignments.

ee mre Sef One =

eT ee

- ot a *

3 _ « My sé@é6nd conclusion is that both grievants had

an. obligation, under all the circumstances, to. uti-

lize the established replacement procedure. in order

td minimize or perhaps avoid entirely the need to

‘confront the Company with a refusal of Sunday work.

- Ido not ‘question the sincerity of their conviction

that it would be sinful for ‘them to look for a replace-

‘ment, but I consider it to be-mjsconduct under the

Agreement for them to’ have refused to do so. (Dewey,

it will be recabled, accelerated his disciplinary

timetable by telling Zagman not to serve.as a re- .

placement any more.)

Arbitrator Haughton, in his,1965 decision in

the Zylstra case (cited earlier), appeared to rely

only partly on the fact that Zylstra "has found it

‘possible to. ... accept Sunday overtime assign-

ments in the .past."' Haughton then wrote:

.,» « In these circumstances, and recognizing

that it is an established practice for Sunday

overtime work to be required. when necessary

in modern industry, the decision on the basic

question of whether or not the aggrieved, be-.:

cause of a religious conviction, had substan-

tial and justifiable reason for not working

must be in the negative. ;

-On reviewing the facts of the grievances now before

mes I would conclude that the question of whether -

‘or not an employee happened to accept Sunday work

in the. past (which Deweydid) or has always refused

Sunday work (like Scholten) is not determinative of

} Lona

' Trial Exhibit J Pee eet ee a. FBR

_the basic issue" Offmore relevance as precedent,

I think, is the fact that a Zrievance protesting the

discharge of Knight in August 1966 for refusing Sun-

day work on religious grounds was later withdrawn,

An. important commitment arising out of one's

religious convictions and obligations can provide a

‘substantial and justifiable reason" for excusing, an

_employee from some pa rficular w6rk assignment,

on a Sunday or on some other day. What I found

here; howeve Wy i is that the Agreement does not per-

-mit‘a regular and continuing refusal of all Sunday —

= ork on religiouX grounds. I will therefore not

sustain the grievaltces.

AWARD,

LGriewantes No. 621l’and Ne. ‘639 (Robert Doser’:

i ‘and Grievance No. 622 (Hilbert si tla are Gasircxd .

denied.

Mark L,.. Kahn. ; Fete

Arbitrator ° | ag

DATED: June 29,. 1967

‘Dewey's religious views.did not take their present °

form, under.which he feels compelled to refuse all

Sunday work, until about 1961.. This was after the

adoptionef the present compulsory overtime pro-.

-yision, which occurred in March 1960.

Trial Exhibit «| s a.

&.*

TRIAL EXHIBITS _

STATE OF MICHIGAN

GEORGE ROMNEY, Governor

. CIVIL RIGHTS COMMISSION

900° Cadillac Square Building, Detroit, ee 48226

Telephone: 222-1810 .

‘BURTON I. GORDIN, Executive Director

September 19, 1966 * -

Re: #1904-E4 Robert K. Dewey

-vs- Reynolds Metals Company

Mr. R. A. Lies

Personnel Manager : =.

_Reynolds Metals Company os

1701 Porter, S.W. |

Grand Rapiis, Michigan

Dear Mr. Lies: ao ee) a

This is to advi#® you that Mr. Robert K. Dewey

‘has filed an application for the issuance of a com- j

plaint by this Commission against Reynolds Metals

Company.

Mr, Dewey states that on September 12, 1966,

. he was notified that his employment was being termi- ~

nated as of that date for violation of Plant Rule No. .

‘11, Absence Without Excuse.) Mr. Dewey states

that he had received three Warning. Notices for al-

legedly unexcused absences on August 28, -Septem-

‘ber 4; and September 11, 1966, although he-had

notified the company of his preference to not work

on Sundays because of his religious beliefs. Mr.

. Dewey states that a Letter of Agreement has been

developed between the Union and the company which

provides that the company will find replacements —

or - substitutes for employees who prefer not to ark

Trial Exhibit J ie: en ie A 80a

overtime, Mr. Dewey states that substitutes were

secured to perform his wor k on both Sunday, Sep-.

tember 4, and Suriday, fe 2a segs rt.

Ad ,

a a

Mr . Dewey believes he has been subjected to

dise r iminatory treatment, and discharged because .

of his re ‘ligious beliefs. °

— | ;

This. case has been assigned to Representative

Delbert W. Hunt’ for-investigation. Mr. Hunt will

contact you in the near future to make an appoint-

ment to discuss ‘this, matter with you and/or. your

re presentative. :

We find in many cases, however, that claims

-gan‘be settled prior to investigation. If you have ”

any suggestions of ways of settling the claim de-

scribed herein prior to sweh investigation, we would »

"most appreciate having you contact Mr. Hunt. Such”

suggestions, of course, inno way imply that the |

i laim has merit. We solicit these suggestions be-

‘cause of your knowledge of the situatién and because

_which will save time for all concerned,

Very truly yours,

Thomas J. Peloso, Jr.

‘Director of Compliance

——. =

Trial Exhibit K ~~ Su “+ Bla’

TRIAL EXHIBIT K errs

‘STATE OF MICHIGAN -...° _/ |

CIVIL RIGHTS COMMISSION

900 Cadillac Square Building _,

Detroit, Michigan 48226 = *

NOTICE OF DISPOSITION — 3

- Application No. 1904--EM

vere ‘CLAIMANT: Robert K. Dewey | y

3 ‘ ‘RESPONDENT: Reynolds elastin aes > e

SUMMARY OF FINDINGS: nwa ' of

The findings indicate that the claimant, despite

Be ap of overtime requirements by’ the company "

A ‘

he applicable. Collective Bargaining Agreement

7 provisions, continued to refuse to perform scheduled.

-overtime work on Sundays ‘and took the posifion that

his right to continued employment while following

his religious belief without interference was an ab-

solute right. a

The Commission has previously ruled that where

the normal work week and forseeable:overtimé re-

-quirements are prescribed in a Collective Bargain-" +.

- ing Agreement, that absent or (sic) intent on the

part of respondent to discriminate on religious

grounds, an employee is not entitled to: ‘demand any

alteration in such requirement:to accommodate his

_ religious beliefs.

The ‘investigation did not reveal any intent on be

the part of the respondent to discriminate on re-

‘ligious grounds and it is, therefore, . recommended:

that this application for the issuance ofa complaint

be denied for lack of cite cause. |

”

Trial. Exhibit K Mae “Bea

. q : e °

ORDER OF DISMISSAL

The C ommiission has found insufficient pr ounds. °

on whic h.to issue aC omplaint and, therefore, the °

above Application is her ewith denied, This Order

of Dismissal shall aujomatically become’ effective > §

Within 15% da ays from the date of mailing unless the

Claimant shall de mand a he aring prior thereto,

BY ORD ER OF THE CIVIL, RIGHTS COMMIS-

SION Af te Sage

<* By: /s/ Burton I. Gordin ,

; ' Executive Director . —

_ Date™ December 13 a 966

;

» MICHIG ‘AN CIVIL RIGHTS COMMISSION, RULES

G OVERNING ORGANIZATION, sos \ Cotesia AND

PROC EDURE,

RULE 7 vee Claimant oe request of the

Commission, a: reconsideration of its refusal to issue

a Complaint or any Party may request as to the

terms of conciliation. Such request must be in-

writing, state specifically the grounds upott which

it i's based, and be filed within 15 days’ from.the~

date of. mailing of the notice of disposition, of which

| reconsideration is requested. It shall be filed in

the office of the -Commission. (pérsonally or by mail-_

: sing) where ced application was previously filed,

"The. Commission ‘in its discretion shall grant.

or. deny the request for reconsideration. In either.

‘ event, it. may schedule a hearing thereon at such

_time and place and before such Hearing Commissioner |

‘or, Commissioners or. Hearing Referee or Referees,

Be ae be aggrieved by-a final orde ;

|, including without limjfation- a. reftisal to issue a Com-~

e y ee) '

trial Exhibit 1, e 7 ee,

as it may determine, and’ ngytice thereof shat be -

give n to all Partii-s). 40, the pr oceeding . erat

_RDLE £0- (a) any. Party ee claiming!

of the Commission,

plaint, may appeal | to the Circuit - ‘Court of the State

of | Michigan’ having ‘jurisdicsipn provided by law .03".

; ‘Dated a: Detroit, ener cal and, Mailed on a.

cember 14, 1966. ; ye

| rahi letert L

CHARGE Of DISCRIMINATION

<< (Under Title VII of the ‘Civil maghts Act of 1964) *

This form | is to be used. only to file.a charge of

discrimination based on RACE, COLOR, RELIGION,

SEX, or NATIONAL ORIGIN,

Case File No, G1- 7- I- 295 es

Mait to - ial Employment Opportunity Com.

‘mission, 1800 G Street, N. We, a anmner ees D.C.

20506. Beltre ea ae Hse

; ROBERT DEWEY; 901 32nd s. w. , Grand

- Rapids Michigan 49509.

' Was he discrimination because of: -Religious

creed. cbs

‘Who discriminated against you?.: Give the name...

-and address of the employer, | labor. organization,

émployment agency and/or apprenticeship committee; id

. If more than’ one,- sai all.

‘

-”* .

7 a

Trial Exhibit L rte ley 84a

@eynolds Metal Company, 1701 Porter S.W.,0

Grand Rapids, Michigan 49509.

_ Have you filed this’ charge with a state or local

government agency? Yes. ¥ _ 6

If your charge is against a company ora union,

how many a or members? Approx. 300,

The most recent date on which this Choegineiga -

* tion took place: ere 12,1966. 2

Explain what unfair thing was done to you:

Employee has been an “employee of Reynolds

Metal Company for fifteen years. Approximately

‘one year ago the company signed with the union

representing the employee, an agreernent in which

the company was permitted to require overtime. |

The provisions of the contract read as follows:

"All employees shall. be obligated to per-

‘quired of them by thé COMPANY except when

the employee has a substantial and justifiable

reason,for not working."

Article IX, Sec. 3, of the Agreement be-

tween Reynolds Metal Co, and the International

Union;. United Autemobile, ‘Aerospace, and

Agricultural Implement Workers of America

UAW -AFL-CIO and Local 277.

Subsequent to signing this agreement, the com-

‘NOTE: See gher side for beginning of’ exp

tion.

“TS

pany decided to requiré overtime on Saturday and

Sunday, i . rae

Trial Exhibit L

85a —

I swear or affirm that I! have read the above

chargé and that it is true +o the ‘best of ‘my ae

information and belief.: —

Date: December 30, 1966,

_Robert Dewey

Subscribed and sworn to before me this 30th

day of December, 1966, ; ~

Gertrude Bos, ‘Notary Public — :

‘Employee ig a member of the Reformed Church

of America, and has beeti converted to Christ for ’

five years. Every Sunday he teaches Sunday School

in his church. He believes that Sunday is a day to

worship and serve God, and these beliefs’ compel

him to abstain from work on Sunday.

Employee has been an sonealovia of Reynolds

Metal Company for fifteen years. Approximately .

one year ago the company signed with the union .

representing the employee, an agreement in which

the company was permitted to require overtime.

The provisions of the contract read as follows:

"All employees shall be obligated to per-

form all straight time and overtime work re-

quired of them by the COMPANY except ‘when’

the employee has a substantial and justifiable °

* reason for not working. "

Article IX, Sec. 3, of the Agreement be-

tween Reynolds Metal Co.. and the International

(Union, United Automobile, Aerospace, and

Agricultural Implement Workers of America

UAW -AFL-CIO and Local 277.

RQ. 7 “$ a I

: ; a, e

Trial Exhibit L a ee ' 86a

Subsequent to signing this agreement, the com-

pany décided to require overtime on Saturday and

Sunday. The weeks in which overtime on Sunday

-was,;required were not perman but were required

‘ from time to time as the company required. During

the first of these weeks, employee was on vacation. _

At this time, a few other employees were absent on

Sunday because of religious beliefs.

The company found such a reason unacceptable

in spite of thé fact that the company gave a fellow

worker an excused absence when the reason given,

was to. attend a family reunion. The company also

gives excused absences for health, attendance of a

funeral, and other reasons;

After this first incident, the company initially

declined to enforce their position, but later took the

position that the employee would be absent without

‘excuse if the employee did not obtain‘a substitute

on his own. ;

Because of his religious beliefs, employee did

not work on Sundays August 28, 1966, September 4,

1966 and September 11, 1966. On all these days |

employee did not obtain a substitute worker on his

own, although employee knows that on at least one

of these dates there was a substitute. On all of

these dates, employee notified the company prior

to the particular Sunday that he would not work on

that Sunday. Because of his failure to appear at

work on September'11, 1966, employee was dis~

charged September 12, 1966.

Since the time of the discharge, employee has

filed a claim, “number 1904-EM with the Michigan

Civil Rights Commission on Septernber 16, 1966.

The claim was decided December 13, 1966, against

employee. , :

Trial Exhibit L ee ee ee ttt Ci

Employee asks the Equal Employment Oppor-

tunity Commission to find that Reynolds Metal Com -

‘his religion because:

(1) When employee | was originally hired by

Reynolds Metal: Company, there was no requirement

forcing him to work. After employee’had accumu-

lated fifteen years seniority and the occupational —

benefits which’accompany this seniority, employee

‘was dismissed because ofa requirement, the effect

of which was to force those persons who had bona

fide religious beliefs, either to violaté those beliefs

and work for the company or ‘to. remain steadfast QD ,

to those beliefs ani be dismissed. Employee be-

lieves that the policy of the statute was to protect

himself and his beliefs from the pressure of his

employer. If the employer can force the employee

to violate his religious beliefs through company

requirements which on the face of the requirements

seem to affect all, yet in effect, forces those with

bona fide religious beliefs to suffer hardships, the

purpose of the act is defeated. ‘

(2) The number of employees who refuse to

‘ work on Sunday because of bona fide religious be-

liefs are very small in comparison to the total work-.

ing force, and would represent an irisignificant

amount of inconvenience to the company in order

to permit employee to practice his religious beliefs.

; =

(3) The company allows excused absences for

health, family reunions, and other reasons. Em--

ployee maintains firsi, that observing his spiritual

convictions to God is a substantially better reason

for an excused absence than a family reunion.

Secondly, — maintains that et health

, a -

is just as important as physical health and that the

difficulty in policing excused absences for religion

is not any greater than policing bona fide sick days.

TRIAL EXHIBIT. M

EQUAL EMPLOYMENT OPPORTUNITY

4 COMMISSION |

oy Washington, D.C. 20506

; - January 5, 1968

- In Reply Refer To: ‘

_Case No, CL 7-1-15

Reynolds Metals Company

Grand Rapids, Michigan

Mr. Robert A. Lies” -

Personnel Manager

Reynolds Metals Company » ‘

1701 Porter Street, S.W.

Grand Rapids, Michigan .

Dear Mr. Lies:

After investigation of charges, the Equal Em-

ployment Opportunity Commission has determined °

there is reasonable cause to believe that the above .

named Respondent has engaged in unlawful employ-

ment, practices under Title VII of the Civil Rights

Act of 1964, A copy of the Commission Decision.

is enclosed. ©

As soon as possible a conciliator will contact

the parties to discuss means of correcting the dis-

crimination involved and ways of avoiding it in the

future. The conciliator will propose a written con-

_ciliation agreement for this purpose. If an agree-

ment is signed by the parties, it will be submitted

to the Commission for its approval. If the Com-

mission, is unsuccessful in its efforts to secure

oe.

Opinion aby ie #f - 89a

voluntary compliance , it must so notify the Charg-

ing Party and advise him of mie right to seek relief

‘in a Federal Court.

hides the Statute and the Regulations of the

Commission, nothing said or done during or as a

result of conciliation may-be made public by the

Commission or used as ¢vidence in a subsequent

proceeding without the written consent of the parties.

We are hopeful that you will cooperate with us

in achieving the objectives of the Civil Rights Act

and that we will be able to resolve the matter quickly

and satisfactorily to all concerned.

‘Sincerely yours,

Robert L, Randolph (Acting)

Director of Compliance

Received: January 10, 1968

Personnel Dept. ,

OPINION

. (Filed June 6, 1969)

This is an action arising under Title VII of the

Civil Rights Act of 1964, 42 USC 82000 (e), which

provides, among other things, for relief against _

religious discrimination im employment. The parties

have stipulated to the facts, the most pertinent of

which are set forth below.

- ‘ Plaintiff, Robert Dewey, was employed by de-

fendant at tts Wyoming, Michigan plant on June 14,

1951, and held various jobs until he became a die

repairman, which is the job he held at the time of °

his discharge on September 12, 1966.

Opinion ce eet s “a ‘ 90a ‘

Defendant's Wyoming facility is a “job type"

plant which produces aluminum extrusions and bil-

lets on an order basis. Before 1964 the plant op-

erated on a five-day weekly schedule. Because of

increased business, during 1964 and 1965 the‘plant

“operated on_a “five plus'' days weekly schedule.”

'Lhis’ increased to "six plus'' days by 1966, with

“numerous Sunday work schedules,

Plaintiff was a member in good standing of the

-U.A.W.. Union, Local 277, which represents the

production and maintenance b Saaployees. of defendant's

plant.

Before the 1960 Labor Agreement, overtime

at the plant was performed on a voluntary basis,

and under such circumstances scheduling of pro-

duction was made impossible on certain overtime

days. In 1960, and to the present time, the agree-

‘ ments have included a section giving defendant the ~

right to set overtime schedules and make it com-

pulsory for the employees to work such schedules. —

unless they have a sbustantial and justifiable reason

for not doing so. This section in the 1965 Labor

Agreement is Article IX, Section 3: ,

"All employees shall be obligated to per-

form all straight time and overtime work re- .

quired of them by the COMPANY except when

an employee has ‘a substantial and justifiable

reason for not working; provided, however,

' that no employee shall.be required to work

. More than twelve {12) continuous hours with-

out his consent,"

. The agreement also provides, in Article IX, Section

.4, that overtime work shall be divided as equally

as possible. If fewer than all qualified employees

; Opinion ; | Gla

‘are needed, the numb& required is to be scheduled

with the cvertime chart, and if more employees are

needed, they are assigned in the inverse order of

their seniority. : ‘ ° :

“In response to a Union objection to the compul-

sory, Overtime clause, defendant.on September 20,

1965, issued an interpretation of the Labor Agree-

ment which said in effect that any employee assigned

to overtime could be rélieved from that assignment

by arranging for another qualified employee to re-

_place him. THis system has been utilized exten-

sively. ji : : :

Since December of 1961, plaintiff has been a-

member of the Faith Reformed Church, affiliated

with the Reformed Church of America. After join-

’ ing this church plaintiff never volunteered for Sun-

day overtime work, although he did volunteer for

’ other days.

Plaintiff was’ scheduled to work overtime on

Sunday, November 21, 1965, pursuant to the com-

pulsory overtime provisions of the Labor Agree-

-ment. He refused to work because of his religious

beliefs; he was given a verbal warning;. and. he was

advised of the necessity of a seven-day operation °

and that a repetition of his conduct would lead to a

disciplinary action under Plant Rule 11. This rule.

prohibits "absence from work without reasonable

cause, '' and provides a three-offense progression

of punishment, with discharge for the third offense.

On the next five Sundays which plaintiff was re-

quired to work, between January and August 1966,

he instead obtained qualified replacements in the

manner described, supra. But on.August 28, 1966,

when again required to work on Sunday, plaintiff

ai a

A Ypretinerne

° j ’

hdl r md I AR

retuned ty work because of hin relipiouws beliefs and

refused, bee ane ol bis reliprous beliefs to obtain a

repel, \s erie ate He fold. dake Aapian, oa fellow em

plove eowhe had been serving as his replacement,

tfrivt he Worle bone lonper ask dalce fo re pl. roe him,

I havvvtatt Was given a written warning of violation of

INant Rule, PL, “4 i

Phere is ne dispute that these re ligious be lets

of yl. vintill are sincere, These beliefs were e&-

prosse do by pl. vintitf to the defendant be ‘fore the first

tine he re fused foobtain a qualified re plac ement,

Plaintitt honestly beliewes, asa part of his religion,

that he should net work on Sunday, ‘and that he also

should net induce anyone else to work on Sunday.

a ’ %

Consequently, on the next Sunday which plain-

itt was required to work, September 4, 1966, he

re ‘fused to Work or to obtain a replac ement. . He was

iven a written Wiraing ‘and a dise iplinary layoff of

cs ee days, Pl dintift again tefused to w ork on Sun-

day, September Ll, L966," ahd was discharged for.

violation of Plant. RuJe IL, ° mas

phe ™

On all the above-mentioned Sundays there were

sseveral qualified die’ repairmen available to work,

although defepdant states that two of these men could

mot be compelled to accept such an.overtime assign-

ment, since‘it was outside their job classification.

. wm ; "4 7 A ; ;

Before plaintiff's discharge, defendant had

taken disc ipli nary action as toa number of other

on Sunday because of their religious beliefs, as

well as disciplinary action against ‘employees who

refused overtime on days other, than Sunday.

Opanion” $e at < yA ” - : i Daa

Pl; sini figd 4 A prievanee upon his discharge,

‘but his i revance/swan denied at eve ry step of the

procedure, ine idding . arbiter ifion. ‘The arbitrator

considered: only. the Contract, and néither the Civid

Ragrhitss Act nor the Cong Titition was be fore hirn,

haiti then proe coded to the Mic hijgagr, Civil Rights:

Commission, which denied his ¢ om plain due to in-

wulhiere if pronnd py Plaintiff esr filed a « harye

with the Tequal I: anphoy me th Opportunity Corimission,

Whish rasued a letter To de fe ndant blating that the |

Commission hid ‘deter rine dt that there was .reason-

able cause to believe that defendant had engaged in

unlawful @mployment prackices under ‘Title Vil of

the Civil Riphts Act.of 1964\

This aCtion was brought upon failure of concilia-

tion efforts, In November of 196K, this court de-

nie ‘d defe ndant! 6 motion to dismise 291 FF. Supp.

M6 | hs oe \ |

These are the facts that have been established.

Before stating the law and applying it to these facts,

it is Well to note the facts which have not betn brought

before the court.. There is no evidence that défend-

ani would suffer any hardship should plaintiff pre-

vail in this case. There is ‘no evidence concermng

what. the effects would be of an accommodation by

defendant. to the religious beliefs of plaintiff. Could

defendant continue to operate on Sunday ? Would :

production be affected? These questions, ‘and others . |

like them, remain unanswered even though the par’- >

ties have been given ample opportunity to present

evidence concerning facts which were not possi ble

to stipulate.

Because an application of Title VII of the Civil

Rights Act of 1964, 42 USC §2000 (e) will permit

the court to decide the case, it is not:necessary to

Opinion. : a ead ; 94a 1s

reach the question of whe ther plaintiff's constitutional

rights have been violated. :

_- Section 703'{a) (1) of the Act, .42 USC 82000 (e)-

2 (a) (1), provides: it pe

"It shall be an unlawful employment

practice for an employer--

Ue: pee discharge any individual ... "9

because of such individual's... . religion. . ."'

‘ ¢

° °

“The Act makes exception to this rule only in

those instances where religion is-a "bona fide oc-

cupational qualification reasonably necessary to the

normal operation of that particular business or enter-_

prise." 42 USC §2000 (e)- 2-(e), That exception has

; not been Alleged, and cle arly does not apply to the

‘manufaeture of aluminu extrusions,

To: further-the purposes’ ‘of the Act, the Equal

_. Empldyment Opportunity Commission was formed.

42 USC §2000, (e)-4. The Commission was given

"power not only to aid the enforcement of the Act,

but also to promulgate regulations consistent with *

the provisions and purposes of the Act. 42. USC

82000 (e)-12 (a). Regulation Section 1605. 1 is: di-

-petly- applicable to this case: hgeadt

tm THA Poe "Section 1605.1 AO of Sabbath

and other religious holidays.--(a) Several.

complaints filed with the Commission have “

raised the question whether it is discrimina-

tion on account of religion to discharge or

; refuse to hire employees who regulariy: ob-|

serve Friday evening and Saturday, or some

. other day of the week, as the Sabbath or who _

‘observe certain special religious holidays

_ ‘Opinion ve s er ee : 1. Roars

during the’year and, as a consequence, do

not work on such days. 3 }

'(b) The Commission believes that the

duty not to discriminate orf religious grounds,

required by section 703 (ap (1) of the Civil

ae Rights Act of 1964, includes an obligation ' on

the part of,the employer to make reasonable

accommodations to the religious needs of:

such accommodations can be made without _

‘ undue hardship’ on the conduct of the employer's

| . business. Such: undue hardship, for example,

ns; may exist where the employee' s needed work

| ‘cannot be performed by another employeé of

substantially similar qualifications during the

peers of absence oF the Sabbath observers’ :

et ee :

"(c) Dackasé of the particularly etek Sy

tive nature of discharging or refusing to hire 9. >»

an employee or applicant on account of his’ fivedtes

-religious beliefs, the emiployei-has-the bur-.

_ den of proving that an.uridue hardship. renders .

the. required accommodations to the ai 2 ae

needs of the ics unreasonable. 5

"(d) The Sitaienietn eise will. review each . gate

‘case on an individual basis in an effort to

+ seek an equitable application. of these guide-

lines to the variety of situations which arise —

due’ to the varied religious beaetices of the —

ao oe American people. " pee ee ea iy Se

Great- weight should hie given to : this ragutetion.

as the Supreme. Court émphasized in Udall v. Tall-

"man, 380 U.S..1, 16, (1965): 3 ie

; i

Opinion - 96a

When faced with a’ problem of statytory

construction, this Court shows great defer-

ence to the interpretation given the statute

by the officers or agency charged with its

fadministration. ''To sugtain the Commis -

“ sion's application of this statutory term,

we need not find that its construction js the

‘only reasonable one, or even that it is the

‘ result we would have reached had, the ques-

tion arisen in the first instance in judicial

_ proceedin ' Unemployment Comm'ns-v>

- Aragon, 329 US 143,°153, 91 Led 136, 145,

‘67 SCt 245. e also, “e.g., Gray v. Powell,

~ _ 314 US 402, 86 Led, 301, 62 S Ct 326;

” Universa) Battery Co. v. United States, 281

US 580, 583, 74 Led 1051, 4054, 50 S Ct

A22, "Particularly is this p Veter due when

the administrative practice at stake ‘involves -

a contemporaneous constructidn of a statute

by the men charged with the responsibility of

setting its machinery in motion,, of making

the parts work efficiently and smoothly while |

they are yet untried and new'."" Power Re-

actor Co. v, International Union of Electrical

etc, 367 US 396, 408,°6 L ed 2d 924, 932,

'- - BLS Ct 1529.

In considering the law to be applied, the effect

of the labor-managemént agreement must be deter-

mined, The agreement prescribes a certain pro-

cedure for assignment of overtime and for discipli-

nary discharge. If the procedures provided are law-

ful, defendant would prevail, Tf they are unlawful,

the fact that it is a labor-management agreement

will not validate the procedures. An agreemient

which violates a provision of the federal constitution

or ofa constitutional federal statute, or which can-

not be performed without violating such a provision,

Opinion yon 97a

is illegal and void. Ewert v, Bluejacket, 259 U.S,

129, 138 (1922); Connolly v, Union Sewer Pipe Co.,

184 U.S, 540, (1902); 17 Am. Jur, 2d, Contracts -

8165 (1964).

The issue is thus not changed by the existence

ofacontract. If the procedures used are discrimi- °

‘natory, the plaintiff is entitled to relief, notwith-

standing the fact that the contract authorized the

procedures, ,

In apflying the law to the facts in this case,

we are concerned with the answer to.one question:’ .

is the enforcement, by discharge, of compulsory

overtime on Sunday disoriminatory when, solely. .

for religious reasons, the person discharged re-

fuses to work on Sunday or to obtain a.qualified re-

, placement?

The defendant argues that discrimination re-

quires a rule which applies differently to different

groups, and that the compulsory‘overtime provision

applies equally to all employees. This argument:

is invalid, because it is entirely possible that while .

a rule may apply equally to all employees, it does

not have an eQYial impact on them. The court should

look beyond the fact of the rule to determine whether

it is discriminatory, See, in another context, Ranjel

v. City of Lansing, 293 F. ws i 301 (W.D. Mich,

1968).

Rules having uniform application but a discrimi-

natory effect against an individual's religion have *

begn struck down before. Sherbert v. Verner, 374-

iS. 398 (1963), is probably the leading case in

this regard. In ee the plaintiff was denied

unemployment compehsation benefits because she

Opinion . " OBa

refused to work on Saturday because of her religion,

and was therefore “unavailable for work.’ The law

applied équatly to all, but’its impact was discrimi-

natory as to Seventh Day Adventists, such as the

plaintiff, In rejecting an argument similar fo that

made by the defendant in this case that the rule ap-

plies equally to all, the Supreme Court, through

Mr. Justice Brennan, stated at pp. 403 and 404:

‘In a sense the consequences of such a

disqualification fo religious principles and

practices may be only an indirect result of

welfare legislation within the State's general

competence to enact; it is true that no crimi-

nal sanctions directly compel appellant to.

work a six-day week. But this is only the

beginning, not the end, of our inquiry. For

'(i)f the purpose or effect of a law is to im- —

pede the observance of one or all religions

or is to discriminate invidiously between

religions, that law is constitutionally invalid

eventhough the burden may be characterized

as being only indirect.’ Braunfeld v. Brown,

366 U.S, 599, 607. Here not only is it ap-

parent that appellant's declared ineligibility

for bénefits derives solely from the practice

of her religion, but.the pressure upon her to

forgo that practice is unmistakable."’ (Em-

phasis supplied.) ‘

The facts of Shervert are similar to a recent

Michigan case, Swenson v. Employment Security

Commission, 340 Mich. 430 (1954). Again a pro-

vision which was applied equally had a significant

impact only on Seventh Day Adventists. The appli-

cation 1 of the provision was ‘therefore struck down.

“

Opinion — a ae, a

A final example of the fallacy of defendant's

argument is West Virginia State Bd. of-Ed. v.

Barnette, 319 U.S, 624 (1943).° AH school children

in West Virginia were required to salute the flag,

a rule which on its face is not discriminatory. But -

‘ saluting the flag was forbidden by the religious be-

liefs of some of the students. The Supreme Court

declared such a rule to be unconstitutional.

° In each of these cases, as in the case at bar,

the uniform application of a rule or requirement

was struck down because its effect, its impact, was _

discriminatory. — ies

The compulsory overtime rule of defendant,

coupled with the option to obtain a qualified replace-

ment, is not discriminatory on its face, but this is

only the first step: Is the, rule discriminatory in

‘its impaet? To answet the question it must first

“be determined what "discriminatory" means. Two

definitions in the religious context are suggested,

_ one by Sherbert v. Verner, supra, and one by the

Equal Employment Opportunity Commission guide-

lines, also discussed supra. The standards sug-

gested by these definitions will be applied to the

case at bar. :

In relation to Sherbert, one might question its

relevance, since in that case there was ''state action, -'

while in the instant case there is only private action.

That distinction would be important if this opinion

were dealing with whether defendant's overtime rule

is unconstitutional. But the issue before the court

is whether the defendant has violated a federal stat-

ute-+a statute which restricts the activities of pri-

vate employers and does not require ‘'state action. "'

The importance of Sherbert to this analysis is not

Opinion ; om . ie 100a

its holding-on constitutionality, but its definition of e

discrimination -- a definition which is _equally valid ,

‘whe the r employed to measure private or state action,

The religious discrimination fn Sherbert is

sucemetly defined at 374 U.S, 404:

''The ruling forces her to choose between

following the precepts of her religion and for- -

feiting benefits, on the one hand, and abandon-

ing of one of the precepts of her religion to

occa work on the tier hand,"

lhus, a rule which isrces: a person to choose be-

tween his religion and c ompensation benefits is

penalizing him solely because of his religion. |

Applied to this case, plaintiff has been forced

to choose between his réligion and his job. Such a

choice’ linvits plaintiff's free exercise of his religion,

and is thereby discriminatory in its effect. Apply-

ing the principles. of Sherbert, the rule of defendant

It is not’necessary to rest the decision entirely ~

on the Sherbert doctrine, however. The guidelines

of the Equat Employment Opportunity Commission

‘make it very clear what duties vis-a-vis religious

beliefs are imposed upon any ‘employer: Those

‘guidelines are a yery reasonable interpretation of .

the statute, and are hereby adopted as defining the -

requirement of the statute ‘that an employer not dis-

criminate on the basis of religion. |

The test set forth is a twofold one: (1) the em-

ployer must make reasonable accommodations to

the religious needs of its employees; (2) unless such

accommodation will cause undue hardship on the

conduct of the employer's business.

Opinion , pies 5 ‘1Ola

‘The evidence does not establish that a reason-

able accommodation ‘/ »|. intiff's religious beliefs

‘was made by defendat!. When considering plain-

tiff's béliefs, it fmust be remembered that a funda-

mental part of them was that plaintiff could not ask

anyone else to Work on Sunday, because that would °

be as much a sin as working himself on Sunday. _

There is no dispute as to the sincerity of this belief.

"i , , , ;

Reguiring the employee to obtain a qualified

replacement may be some accommodation to those —

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.