# Appendix — Dewey v. Reynolds Metals Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1486%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1971 - **Citation:** 402 U.S. 689 ## 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 ‘ i) and 4 a * a ? . . . e aS . 2 R ee ‘ io Be soe = e ~™ Anis . Py * / 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 | * Fs 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.’ \ ' a e ’ 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. 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 © Commission on Law and Public Affairs, 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) =r Docket Entries ae July Aug. Aug: Sep. 30 11 11 ; . 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 a ee | 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 ~ : . eI a 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 o * ° 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, 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),. a, Pa \ Stipulation. for Améadfnent « of Complaint sae 12a i ae . v. | 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 @ 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 © | 2S. -EROSS, WRECK, MILLER & VIESON 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 i. 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. a . ’ , 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 , . G * 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 va contents thereof, , Ff os — : 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., ed 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 2 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-- ° = 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, o 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 po > 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 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 * i “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 j 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 te é 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, ve "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 e 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 Ls . * ‘ > . 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 a o 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 cy 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 2) 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 ch 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 DS 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 - Pa 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 e, | (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 Ey . 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. : : ¥ (c) If, in addition to employees obtained under 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 ww _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- , 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 . ° ¥ oe * 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 . © shall have accumulated ten (10) years-experience in 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 . 6: i 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 in an unsafe gondition. ATR) Re an 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 ° 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. 4 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 i. ae b to the « ‘harro. mm Ot. tre ‘Union! # Negotiating Committe c th. ut be ‘ran as fallow 8: eee d N '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 ¥. The © ‘ompany's, Plant Rules, posted in each ‘ai , 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. ' 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. —- 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 7 ee 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 A 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: 3 .,» « 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 of the possibility that a solution can be proposed ©~ _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. Pi 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 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: employees and prospective employees where © such accommodations can be made without _ ‘ undue hardship’ on the conduct of the employer's | . business. Such: undue hardship, for example, 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.) ‘ dl 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 4 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 ‘ should not be enforced against plaintiff. © ~ 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 — who do, not approve of Sunday work, but it is no accommodation whatsoever to those who Believe, as plaintiff does, that it is'a gin to induce another to commit the sin of working on Sunday. As to this sincere religious belief of plaintiff, defendant has made no accommodation. ' Moving to the second half of the Equal Employ- ment Opportunity Commission test, the defendant ‘has not demonstfated any undue hardship. As stated earlier, full opportunity was given for any and all relevant facts to be presented. Yet the only factor tending to show hardship was that ten years ago there was some difficulty scheduling production on Sunday. This is not the type of hardship envisioned by the guidelines: o~ "Such undue hardship, ide example, may exist where the employee's needed work can- not be performed by another employee of sub- stantially similar qualification during the ~~ period of absence of the Sabbath observer," Dewey's case is just the opposite. There were al- ” ways several available employees who coypld per- form his work, © | , ' Opinions ¢ Boeke: ‘ 102a _ The other facts cited to show hardship by de- fendant are not part of the stipulated facts, and are not properly before the court. . exception would opef the door to other exceptions not based on religion. This is pure speculation — which is not. supported by logic. Sherbert, supra, 374 U.S, at 407. Other exceptions are not authorized, - indeed mandated, by federal law. There is no rea- _ son why an accommodation’cannot be made relative , to religious beliefs, and limited thereto, Defendant alludes to the ther that this Thus plaintiff prevails under both definitions of discrimination. The overtime procedures of defend- © ant, as applied, violated’the Civil Rights Act of 1964. The fashioning of a remedy presents,a serious problem, because a reasonable accommodation is. better worked out by agreement of the parties than by fiat of the court. For this reason, the only af- _firmative relief which will be awarded at this time is that plaintiff be ee to work, with back pay. from August 1, 1967. As to further accommodations which should be made in accordance with this opinion, the Parties are asked to reach a solution acceptable to all con- cerned. Sucha solution might include the defendant's Tthe guidelines became effective July 10, 1967. ° ’ Béfore the defendant was not on notice a’ ‘to the ' meaning of the statute. But in a reasonable time after the effective date an accommodation should © have been worked out. August 1, 1967 is such a. time. ree ees ° ee ee . Opinion on Motions for Entry of | - Judgment and Stay of Judgment 103a obtaining qualified substitutes or a shared overtime “type of arrangement whereby the people who could: ' not work Sundays would work overtime on other days _of the week. These are merely suggestions. The parties know which types of accommodations are best suited to ‘their particular needs. It is also suggested that the union be a party to negotiations ; Concerning an ac- ceptable change in the contract, so that the contract will ‘conform to the law. | we '. The court expressly retains jurisdiction of the case, to review agreements reached by the parties pursuant to this opinion, ‘or to issue whatever ordérs are necessary to insure that.the religion of defend - ant's employees is properly respected and fairly accommodated. IT IS. SO ORDERED. Dated: June 6, 1969. “NOEL P. FOX District yuaee) OPpnhon ON: MOTIONS FOR ENTRY OF JUDGMENT AND’STAY OF JUDGMENT ~ * (Filed July 25, 1969) The parties to this suit are before the court for entry of judgment. The court's opinion ordered plain- tiff to be reinstated, with back pay and full seniority, in his ‘ashes with fetentant. ae ee Pursuant to Rule’8 of the Federal Rules of Ap- pellate Procedure, defendant employer has moved - aera een al “Oo. Opinion-on Motions for Entry of Judgment and Stay-of Judgment Se ot se — 104a. for an order staying enforcement of this judgment pending disposition of defendant's appeal to the + United States Court of Appeals for the Sixth Circuit, and for fixing an, amount of a supersedeas bond ré- quired of deferidant. l.* /Stay of Money, Judgment, In support of, its motion, Aétendant first char - acterizes the relief granted in this case as "esgsen- — tially a money judgment.'' Defendant then claims ‘a stay of such a judgment as a matter of right, if accompanied by giving a supersedeas bond, pursuant’ to Rules 62 (d) and-73 (d) of the Federal Rules of ' Civil Procedure. Contrary to defendant's .charac -’ terization, this remedy obviously involves much more than‘a money judgment. Reinstatement of Mr. Dewey is to be ordered, and his rights enforced, by a permanent injunction. Authority for such a- ‘ remedy is provided in the statute as follows: ’ ‘If the court- finds that the respordent has intentionally engaged in or is intentionally engaging .in-an unlawful employment piictice charged-in the complaint, the court m en- join the respondent from engaging in,such unlawful empléyment practice, and order _ ., . such affirmative action.as.may be approp- riate, which may include reinstatement. ,'' 42 USCA 82000e-5 (g). | The court. found defendant in violation of the Act, and. will procéed to fashion an effective remedy. See pages 8-11 of the court's opinion with respect torefendant’ s‘unlawful practices. Defendant is entitled, however, to a stay of the ‘money judgment for back pay, and this is so ordered. » / - Opinion.or Motions for Entry of Judgment and Stay:of Judgment ~~ » 405a . II. ’. Stay of Reinstatement. Defendant is clearly. not entitled to a stay of | ‘an injunction, or injunctive type remedies as a mat- ter of right. Rule 62 (d) provides for stay of judg ; ment and supersedeas. bond pending appeal “subject to exceptions contained in subdivision (a) of this rule.'' That subdivision in turn refers to subdivision (c) for the particular rule on injunctions. This rule vests discretion in the court, sitting in equity, to stay an injunction pending appeal urider such condi- tions it-degms proper for protection of the rights of the adverse party. The court will therefore con- sider defendant's’ motion as addressed to its sound? discretion, and will examine the remainder of its contentions in the light of insuring justice to the parties. to this lawsuit. _ pe comes ae — ‘Defendant urges’ the court to consider four factor’s in deciding whether to stay reinstatement: (1) whether defendant has made a strong showing that it is likely to succeed on the merits of the ap- peal; (2) whether defendant will sufier irreparable ‘injury if no stay’is granted; (3) whether a stay would = 7 ‘substantially harm plaintiff; and (4) the public in- terest, Each of these points was, in identical or ,Similar form, argued by the defendant in the trial "of this case. Each was carefully considered at that time, and disposed of in the court's Sen : he to point (1), edaiabians at this Seeman merely to reargue its case. No new material was . ; presented to the court. Defendant's former argu- ments do not, in this court's view, amount to a’ strong showing of success on appeal. Point (2) was ay in substance, disposed of by the court's opinion in this case. The court found ? Opinion on Motions for. Entry. of - er . Judgment and Stay of. Judgment ~ ice OZ 106a : ‘hat defendant eA suffer no Reidiak hardship, is under the Equal’ Employment*Opportunity Cofimmis - | sion guidelinés, by accommodating the religious». beliefs of Mr. Dewey. The present contention that ~~ reinstatement will "irreparably harm" defendant ee can fare no better. For. purposes wf this motion, ~"undue hardship, '' and "irreparable harm" can be °° ‘equated. Defendant presented no evidence of = former at trial, ‘and the affidavit now submitted: does not suffice to convince the court of thé latter. Defendant's fears of injury continue to be anticipa- tory and based solely on speculation, -The plant is _not working overtime now and has not been for over eight months, Defendant's overtime’ schedule is entirely in'the control. of management, In addition, Mr. Dewey is not exempt from all evertime work. If overtime problems develop, the court has re- © ‘tained jurisdiction of this mattersand its remedy is flexible. Accordingly,. there is no hardship what- . soever to defendant in the immediate reinstatement of Mr. Dewey. © Z > ; Answering point (3), the court is. convinced . that the only-party to be irreparablysharmed by a stay of this judgment would be plaintiff. Although he still has a source of income, the record shows that he is not making as muchfas he would were he reinstated with defendant. O curring in one of the most inflationary periods in §ecent history, any wage.loss involves added hardship, A stay would, in addition, threaten the skills of a die repairman, 7 If such a skilled worker is kept from. his trade, ‘changes in modern technology lead rapidly to obso- lescence of knowledge. Plaintiff also faces con- sidérable hardship in the awesome task a ‘person of his means faces when litigating against the cor- porate resources of ‘a defendant such as Reynolds. A stay would further. “tas ct the effective inequality - © ij 2 a lly ot np ROS Bal A ACCA fi ti atc! ADS vais Sti AY ATES A . - , . . . , \: $3 , a | Opinion on Motions for Entry of ean Judgmient and- Stay of Judgment _ | . aia rs 107a of these KaPtios >” For these reasons, a stay. would irreparably harm the plaintiff. . Ji Defendant's final point éoncerns “the ‘public interest. Defendant foresees grave consequences to its labor bargaining position as a result of rein-. stating plaintiff. ‘It argues that, because of these predicted ‘consequences, the public interest coin- cides with that of the corporation. In essence, its . position is that avoiding indirect impact upon a large corporation is more consistent with public values ’ than. enforcing the constitutidnal rights of the indi- ~- vidual before this court. The heart of this position is nothing more ; than institutional intransigence. — ' Deleckantth. position, framed | as above, high;” ‘lights one of the most important aspects of this case: the relationship of the individual to the overwhelming institutions of modern'society. It is-true that the : éorporation ‘and other institutional forms.are ‘to a ‘large degree responsible for the current prosperity | *of' the United States. Institutions, however, often grow unsensitive to the.human beings they encom-. pass. Government itself has grown. overwhelming. ‘But we must not lose sight of thé paramount rights of free individuals. Protection of these inalienable rights has been the cornerstone of national policy since the birth of this nation. The Declaration of. Independence and the Fourteenth Amendment deal with the®inalienable rights of individuals, not insti- . tutions. They. reflect the basic theme that govern- . ment ‘and its organs. are constituted by men to secure these rights. to individual human.beings. Congress. had this in mind when it enacted Title vit’ of the - Civil iirc Act in,1964: . | oa nwe batters in the inherent “Mskiey of | man.. He is born with certain inalienable > es, & bea at — ~~ = — aa * 2 4 : 2 o ° ” Opinion on Motjons for Entry of Pee ee, Judgment ‘and Stay of Judgment! ae s °° -108a.- , ya . , % a rights His uniqueness is. such, that we " refuse to treat him’ as if his rights and» a wetl being are bargainable. ' 2). 8.° sate X . Adm. news: (4 at page 2517. baer e . my | eo, ' One of eat’ inalienable ihe is freedom of religion. The. First and Fourteenth Amendments, to the Constitution and ‘the Civil Rights Act Bok to sec uring this right to a i acl humgn- 00 nk Following this cleAr principle, this, court ‘he- lieves the public interest in thig case, to be best . “4 : ‘served by. enforcing the constitutional rights of plain- “ a / tiff, This is a classic case in which the government of the United States is called wpon to ‘secure the rights of a, single individual. Defendant's motion: . ta stay reinstatement ik hereby denied 1." he te . . ‘ > 59 ‘The Court will- retain jurisdiction of. this rnat-. ter to insurg continued prote@tion of plaintiff's rights and provide the flexibility of an apen ended remedy should a significant change’ of circumstances occur, . especially with respect to defendant Reynolds... ‘The _court is certain that all parties involved can ap- proach this-case with the. kind of, reasonablenéss ‘that reasonable men.can bring to the management of: institutions in the economic structure, and will use every effort to reach and maintain an accom- modaftion within the framework of this remedial sche«ne, It will, hoWever, be present to mediate any ‘disputes affecting matters covered by its de- cree in this case, and, if necessary to issue addi- tional orders: te protect all concerned. : It should be: aids ake to the parties that the, - dec reé and any_further aétion th t may take thereundéy ext Sias to individual. ‘officer ; A ployees of defegdant Reyndlds. If necess ’ oh 3 eral rights. Griffin v. Schooi Bd. of Prince Edw ard o , . a5 > 0 eo > ° -* as 2°) ‘i : OTe, e ? —— Borak, 377 U.S. 426, "12 Li. Ed. 2d 423, 84 S.Ct. 1555 ead + * _It is to fulfill. this duty that the relief in Cthis casé is a granted. . ; * r, ray i : . Engaging in Unlawful Employment Practices 42 USCA 32000e- S+(9). ° +0. Defendant argues. that; in order to: be paint ; to injunctive: relief under 42 USCA 82000e-5 (2), supra, page ‘2, theecourt must find specific‘intent or, purpose to discriminate. against Mr. Dewey. tee tehebibbibag _-his is not ‘what the statute re quires, either fox— the ‘subsiantive “OF fSfation. or the imposition of in- junctive.relief.- Defendant's ‘interpreation is ° : > - ms * “Opinio&en Motions. for ‘Eeatry of - | ad eyes ; iesamenl and Stay of Judgment. ‘110a ‘ sd : ce ; : a -consistent with ne ither fhe language nor ‘purpose of: ‘the statute, Defendant ‘has "intentionally engagéd" ¢ and plans to continue to engage in practices which . had ros effect pf the discriminggion the-Act forbids: "IH shall: be an unlawful ‘employment ' practice for an employers; ~ poise te (1) to. « , dischatge. any indi- vidual... bone ne. of such indivi- , dual's ote » "religion ... .'' 42 USCA §20We-2 (a) (1). cede at. eet a A It ‘mntentiond ily: and purposely discharged Mes Dewey for failure to work on “Sundays. or find a-re- |~ ° placement, and would continue to do so if this felief is not granted. By this action, defendant has in- © _tentionally: engaged in an untawful employment practice within the meaning of the aboyé provision. -Furthermore,. defendant’ ‘s reading of the statute | .would serve to foreclose effective remedies for violation of this important statute. Congress in- — tended to, prev [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1486%3A01. Public record. Not legal advice.