Petition — A. O. Smith Corp. v. Nottelson
Supreme Court brief1981
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i dice Supreme Court. US. |
FILED
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81797 J „ 158 198
He. 80. ALEXAND STEVAS
ink.
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1980
A. O. SMITH CORPORATION,
Petitioner,
DARREL C. NOTTELSON,
Respondent,
and
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
Intervenor-
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
JOLENE LANG SHELLMAN
3533 North 27th Street
Milwaukee, Wisconsin 53216
Telephone (414) 447-3940
Attorney for Petitioner
July 15, 1981
Questions Presented
1. Does Title VII §701(j) of the Civil
Rights Act, on its face and as applied,
violate the Establishment Clause of the
First Amendment?
2. Under this Court's standard for
determining undue hardship in TWA v.
Hardison, did Smith meet the reasonable
accommodation requirement of Title VII
§701(j)?
3. Does Title VII §701(j) create an
exception to or modification of the NLRB
§8(a)(3) sanction of union security
clauses?
4. Should Smith be required to pay
attorneys' fees to Nottelson when his
church retained and compensated his
attorney?
In addition to the parties listed in the
caption, Smith Steel Workers D.A.L.U.
19806, AFL-CIO was a party defendant in
the District Court action and filed a
separate appeal to the Court of Appeals
and a petition for rehearing. A. O. Smith
Corporation has no parent. All but two of
its subsidiaries, A. O. Smith-Inland Inc.
and Metalsa, are either wholly owned
directly by Smith or indirectly through
its subsidiaries. None of its sub-
Sidiaries or other enterprises in which
Smith owns an interest is known to have
publicly traded securities.
iii
TABLE OF CONTENTS
Table of Authorities
Opinions Below. . . « «© «© « « «© « «
Jurisdiction. . . « « © «© «© © «© » «
. 2 « & ˙ w bw 8 eS
Statement of the Cass
A. Facts * . 7 . * * 0 . . * * *
B. The Proceedings Below... .
Summary of Reasons For Granting
The Writ. 7 * * * . . * * * * . * *
Reasons for Granting the Writ
I. THE SEVENTH CIRCUIT'S HOLDING
THAT TITLE VII SECTION 701(j)
DOES NOT VIOLATE THE ESTAB-
LISHMENT CLAUSE CONFLICTS WITH
PREVAILING JUDICIAL INTERPRE-
TATIONS AND IMPROPERLY CON-
STRUES CONGRESSIONAL INTENT .
A. The Court of Appeals'
Decision Is Contrary
To Prevailing Judicial
Interpretation 22
B. The Court of Appeals
Holding That Title VII
Section 701(j) Does Not
Violate The Estabiish-
ment Clause is Clearly
Erroneous... °
C. This Court Should Settle
The Constitutionality
Question Involving Title
VII Section 7017.
21
23
35
Il.
111.
IV.
iv
THE SEVENTH CIRCUIT'S HOLDING
THAT SMITH FAILED TO MEET ITS
OBLIGATION TO ACCOMMODATE
NOTTELSON'S RELIGIOUS BELIEFS
IS SQUARELY CONTRARY TO THIS
COURT'S RULING IN HARDISON
AS WELL AS TITLE VII. ... .
THE SEVENTH CIRCUIT'S HOLDING
THAT TITLE VII SECTION 701(j)
CREATES AN EXCEPTION TO THE
NLRA §8(a)(3) SANCTION OF
UNION SECURITY CLAUSES IS
CONTRARY TO THE INTENT OF
CONGRESS, IS BASED ON UN-
FOUNDED AUTHORITY AND IS
INCORRECT t..
THE SEVENTH CIRCUIT'S HOLDING
WITH RESPECT TO THE AWARD OF
ATTORNEY'S FEES TO NOTTELSON
WAS ERRONEOUS ....+ +s
Conclusion. . * . . . * . * . . . .
APPENDICES :
A.
Opinion of the United States
Court of Appeals For the
Seventh Circuit. .
Opinion of the United states
Distriet Court For the
Eastern District of Wisconsin
Legislative History of Title
VII Section 701(j). .....
Constitutional Provision and
Statutes. .. °
Order of the United states
Court of Appeals for the
Seventh Circuit Denying Smith's
Petition for Rehearing and Sug-
gestion for Rehearing En Banc
(April 20, 1961).
PAGE
38
46
54
58
Vv
TABLE OF AUTHORITIES
CASES PAGE
Anderson v. General Dynamics Convair
Aerospace Div., 188 F.Supp. 782
Be 7 Cal. 19 . No. 80-5373,
Slip op. F. 24 (9th Cir 1981).. 26,36,60
Buckley v. American Federation of
~ Television and Radio Artists, 496
F.2d 305 (2nd Cir), cert. denied,
419 U.S. 1093 (1974y 48,61
Burns v. Southern Pacific Pees por
tation Co., 389 F.2d 40 t ir
1979), rem'd 23 FEP 12299 ꝑ⁊ ꝛ 36,60
Committee for Public Education and
Religious Liberties v. Nyquist,
4 * — rr 15,24
27,56
Cooper v. General Dynamics, Convair
Aerospace Div., 533 F.2d 163 (1976)
Cert. denied, 433 U.S. 908 (1977).. 51,52,53
Cummins x. Parker Seal Co., 516
; r affirmed
429 U.S. 65 DEA cé.006066s6e0008 36,60
Fourco Glass Co. v. Transmirra
~ Products Corp., 353 U.S. 222
(195 „ h „ „ „„ „„ „ „ „ e e e 49
Gavin v. Peoples Natural Gas, 464
F.Supp. 522 (W.D. Pa. 1979)........ 36,60
Gillette v. United States, 401 U.S.
437 r ˙’˙A²⁵⅛⁰ÜẽàÜ ese ee 28
Gray v. Gulf, Mobile and Ohio
Ratiroad Co., 429 F.2d 1064 (5th
Cir 1970), cert. denied, 400 U.S.
1001 (1972). ccccccccccccccccccccccse 48,6)
vi
PAGE
Griggs v. Duke Power Co., 401 U.S.
424, 91 S.Ct. 849 (19717 25
Hammond v. United Papermakers and
~~Paperworkers Union, 462 F.2d 174
(6th Cir), cert. denied, 409
e sc tbc . .... 01 -
Hicks v. Miranda, 422 U.S. 332 (1975). 22
Isaac v. Butler's Shoe 1980 25 FEP
as es D. Ga. 6 6 %%% % % %% 56,6)
Johnson v. Georgia Highway Express
Inc., 488 F.2d 714 (5th Cir 1974)... 57
Jordan v. North Carolina Nat'l. Bank,
-Supp. D. N. Car.
/ ˙ôĩ˙ů˙§%⁰[¼ r. ͤ ée ß ßes eee eee 36,60
—
Linscott X. Millers Falls Co., 316
Jupp. ass. 0),
aff'd 440 F.2d 14 Ust Cir),
cert. denied, 404 U.S. 872 41971). 48,61
McDaniel v. Essex International, 571
7 See ee eC eeu are 8 8.88 eee 8 36,47,52
53,60
Morton v. Mancari, 417 U.S. 535
V. ee e e e e e e e e ee 0e 0e ee e eee 49
Muniz v. Hoffman, 422 U.S. 454 (1975). 49
National Treasury Employees Union
v. United States 888139 6 9
the Treasury, p Op. No.
78- ) une 19, . 58
New York v. Cathedral Academy,
. * one 28 2 eo 6 6.6.9 8.0.8 8 6 34
N. L. R. B. V. The Catholic Bishop of
5 » 99 t.
EE re A Ü 20,34,35
vii
PAGE
Railway Employees Department v.
anson, 351 U.S. 225 (1956)........ 48,61
Rankins v. Commission on Profes-
sional Competence, 24 Cal. 3d 167,
593 P. Iq 652, appeal dismissed,
444 U.S. 986 T 14,15, 21,
22,23
Redmond v. G. A. FE. Corp., 574 F. 2d
7 19 reren ele es 42
Sherbert v. Verner, 374 U.S. 398
Ie e eee eee eee e ee e eee e 30,60
Sprogis v. United Air Lines, 517
F.2d 87 7 h C r 1975 „ „ „ „„ „„ „ „ „ 56,57
Thomas v. Review Board of the Indiana
Unemployment Security Division,
* 1 „ r 30,60
Tooley v. Martin Marietta Corp., 476
* 1027 (D. Ore. Lee 20,36,
53,60
Trans World Airlines v. Hardison,
432 U.S. 63 h 17,18, 38
39,40, 41, 42,43, 45, 46,51
Union Starch & Refining Co. v.
National Labor Relations Board,
186 F.2d 1008 . 53,54
United States v. Ryder, 110 U.S.
90 e*eeeenereenreneneeeeneeeeneeeeeee 49
Walz v. Tax Commission of City of
New York, 397 U.S. 664 (1970....... 32,60
Yott v. North American Rockwell, 501
F.2d 398 (9th Cir 1974), 428
F.Supp. 763 (C.D. Cal. 19777 H 29,36
viii
PAGE
Constitutional Authority:
U. S. Constitution, Amendment I....... passim
Congressional Record:
118 Congr. Rec. 705-706 . 3
’
Statutes:
e VII of the Civil Rights Act
of 1964 (42 U.S.C. §2000e
et seq.)
Section 7O1(j)..cccccccccccccccccee passim
Section 703060 %% 4 PAassim
National Labor Relations Act (29
U.S.C. §158)
iii eee passim
P. L. P ˙ ̃ U—I— I
28 U. 8.0. D ̃ eg a ee F 2
Bills:
S. 2109, 93rd Cong., Ist Sess. (1973). 50,61
S. 2239, 95th Cong., Ist Sess. (1977). 50,61
8. 1693, 96th Cong., Ist Sess. (1979). 50,61
H.R. 16541, 93rd Cong., 2nd
Sess. ccc 50,61
H.R. 1528, 94th Cong, Ist
Sess. ( A 50,61
H.R. 14911, 94th Cong., 2nd
Sess. „„ e 50,61
H.R. 14913, 94th Cong., 2nd
Sess. , ² »A . ̃ AꝛÄ 50,61
H.R. 14916, 94th Cong., 2nd
Sess. MIG so T 50,61
H.R. 14920, 94th Cong., 2nd
Sess. De a an ww eek oo cee eee 50,61
H.R. 352, 94th Cong., Ist
Sess. c s 66h be 6 ees 50,61
H.R. 9009, 95th Cong., Ist
Sess. ene ok bee eceee ual 50,61
H.R. 9113, 95th Cong., Ist
Sess. c ĩ0% ( 50,61
H.R. 9368, 95th Cong., Ist
Sess. i a eek oe ES 50,61
ix
PAGE
H.R. 9596, 95th Cong., Ist
Sess. (1977) ů )) 30,61
H. R. 4774, 96th Cong, Ist
Bess. (IMT) „ „6 6 6 6 „60,1, 61
Miscellaneous:
Equal Employment Opportunity
Commission, Sixth Annual Report,
DelZ (1072) 6530
Equal Employment Opportunity
Commission, Guidelines on
Discrimination Because of
Religion, 176 Daily Lab.
Rep. F-1, at F4 (BNA Sept.
9, 1980) ccccccccccccccccvcscccccccelG, 17
No. 80-
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1980
A. O. SMITH CORPORATION,
Petitioner,
Respondent,
and
EQUAL, EMPLOYMENT
OPPORTUNITY COMMISSION,
Intervenor-
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
Petitioner A. O. Smith Corporation
(herein "Smith") petitions for a writ of
certiorari to the decision of the United
States Court of Appeals for the Seventh
Circuit, dated February 27, 1981, af-
firming the decision of the District Court
for the Eastern District of Wisconsin.
2
Opinions Below
The opinion of the United States
Court of Appeals for the Seventh Circuit
is reported at 643 F.2d 445 and is annexed
to this Petition as Appendix A. The
opinions of the United States Distriet
Court for the Eastern District of Wiscon-
sin, two of which are reported at 481
F.Supp. 756 and 489 F.Supp. 94, are
annexed as Appendix B.
Jurisdiction
The decision of the United States
Court of Appeals for the Seventh Circuit
was filed on February 27, 1981. Smith's
timely Petition for Rehearing and Sug-
gestion for Rehearing En Banc was denied
on April 20, 1981. A copy of the order
denying that petition is annexed as
Appendix E. The jurisdiction of this
Court is invoked pursuant to 28 U.S.C.
8125400).
3 of all footnotes begin on page
3
Constitutional Provisions and Statutes
The constitutional provision involved
in this petition is the First Amendment to
the Constitution of the United States, and
the statutory provisions involved in this
petition are Sections 701(j) and 703(a)(1)
of Title VII of the Civil Rights Act of
1964, 42 U.S.C. §2000e-2(a)(1) and (j),
and Section 8(a)(3) of the National Labor
Relations Act (NLRA), 29 U.S.C. §158
(a)(3), all of which are reproduced in
relevant part in Appendix C hereto.
Statement of the Case
This is an action commenced under
Title VII of the Civil Rights Act of 1964
as amended, 42 U.S.C. §2000e et seg, by
Darrel C. Nottelson against his employer,
Smith, and his union, Smith Steel Workers
D.A.L.U. 19806, AFL-CIO (herein the
"Union"), alleging inter alia that Smith
and the Union had engaged in unlawful
employment practices with respect to
4
Nottelson on account of his religious
convictions.
On September 2, 1977 the case was
heard by the United States District Court
which entered a Memorandum and Order on
December 7, 1979 (Appendix B) resolving
this matter in favor of Nottelson. Both
Smith and the Union were found to have
engaged in unlawful employment practices
with regard to Nottelson on account of his
reiigious convictions in violation of
Title VII of the Act in that they failed
to reasonably accommodate to Nottelson's
religious objection to the payment of
Union dues.
In response to motions for recon-
sideration filed by Smith and the Union,
the District Court entered a second
Memorandum and Order (Appendix B) on April
18, 1980 in which it clarified several
unresolved issues, and upheld the con-
stitutionality of §$701(j) of the Act. The
5
District Court also entered a final
judgment (Appendix B) on such date.
The Court of Appeals affirmed the
District Court's decision with one slight
modification of the computation of damages
(Appendix A).
This Petition presents the Court with
an opportunity to (a) insure uniform
adherence to applicable decisions of this
Court and (b) clarify an important ques-
tion of federal law - Does 701(j) violate
the Establishment Clause of the First
Amendment? - which issue has been decided
by federal district courts and courts of
appeals but has not yet been resolved by
this Court. The questions presented by
this Petition are of fundamental im-
portance to the orderly resolution of
numerous pending and future Title VII
religious discrimination cases.
A. Facts
Nottelson, a production worker at
6
Smith and a Union member since October 30,
1947 and a member of the Seventh-day
Adventist Church since 1966, refused to
pay dues to the Union (or otherwise
support or remain a member of the Union)
in January, 1975. He contended that his
religious beliefs prohibited him from
being a member of or financially or
otherwise supporting a labor union. As a
result of his refusal to pay union dues,
or the financial equivalent thereto to the
Union, Nottelson was expelled from the
Union on April 15, 1975. He was dis-
charged from Smith on July 11, 1975
pursuant to the Union's demand and the
union security clause contained in the
collective bargaining agreement between
Smith and the Union. Union security
clauses were contained in the collective
bargaining agreements between Smith and
the Union for many years.
Commencing in December, 1974, the
7
time when he notified the Union of his
decision respecting union membership and
dues, Nottelson met with Union repre-
sentatives on a number of occasions,
several times accompanied by elders from
his church, in an attempt to reach a
satisfactory resolution of the problem
created by such decision. He suggested,
as an accommodation, payment to a non-
union, nonreligious charitable organi-
zation in lieu of dues to the Union.
On February 4, 1975 the Union execu-
tive board denied Nottelson's request for
accommodation on the grounds that it was
contrary to the Union's Constitution and
Bylaws as well as the collective bargain-
ing agreement between the Union and Smith.
In March the Union notified Nottelson that
members who are in arrears on their union
dues are ineligible to remain employees of
Smith and that he would be expelled from
the Union if he did not pay his arrearage.
8
Smith initially learned of Not-
telson's religious belief and the poten-
tial conflict between his religious belief
and the union security clause on March 11,
1975 when a director of the Seventh-day
Adventist Church contacted Smith's manager
of personnel. Smith met with the Union in
an attempt to resolve the apparent con-
flict between Nottelson's religious
convictions and the union security clause.
Smith informed the Union that it was
willing to waive compulsory union mem-
bership and dues as a condition of employ-
ment. The Union was unwilling to waive
the dues requirement. Smith also sug-
gested payment of union dues to a charity
or, alternatively, payment of monthly dues
into an escrow account, pending resolution
of Nottelson's dilemma. The charitable
dues accommodation suggested by Smith was
unacceptable to the Union, and the escrow
proposal was unacceptable to both the
9
Union and Nottelson.
Nottelson asked to appear before the
Union executive board a second time for
reconsideration of his request. Although
aware of the AFL-CIO policy which per-
mitted accommodation along the lines of
Nottelson's suggestion, the executive
board on April 8, 1975 took the position
that granting Nottelson's request would be
contrary to the Union's Constitution and
Bylaws. Nottelson appealed the executive
board's decision to the union membership,
but the union membership did not overturn
the executive board's decision.
Upon learning that his employment was
to be terminated for nonpayment of union
dues, Nottelson sought and obtained a
temporary restraining order from the
District Court on April 30, 1975. On May
1, 1975 Nottelson returned to work under
the temporary restraining order.
On May 7, 1975 the Union informed
10
Nottelson that the Union was willing to
relieve him from remaining a member of the
Union, however he would continue to be
required to pay a monthly dues equivalent
payment to the Union for services both
past and present rendered. This proposal
was unacceptable to Nottelson.
The District Court denied Nottelson's
request for a permanent injunction on July
10, 1975. At the Union's insistence,
Smith informed Nottelson not to report for
work on July 11, 1975. At this time
Nottelson inquired whether 1) a reverse
seniority layoff could be effected for a
two-year period to build retirement credit
and 2) a nonunion job could be given to
him provided he would not be required to
work from sundown Friday through sundown
Saturday. Smith was unable to grant
either of the last minute requests because
1) the labor agreement did not permit
reverse seniority layoffs and 2) the only
11
nonunion jobs were supervisory positions
and most of these positions related to
areas with which Nottelson was not fa-
miliar. During this period the economy
was slow, and Smith filled only three
supervisory positions in areas in which
Nottelson may have been qualified. None of
these positions was vacant on July 11,
1975. Moreover, Nottelson requested a
nonunion job, not because he wanted to
become a supervisor, but solely as an
acconmodation to his religious beliefs.
In his twenty-seven years at Smith,
Nottelson had not expressed an interest in
or attempted to qualify under established
procedures for a supervisory position.
Accordingly Nottelson's employment was
terminated on July 11, 1975.
B. The Proceedings Below
The District Court heard this matter
on September 2, 1977, and on December 7,
1979 the Court entered a Memorandum and
12
Order resolving the case in favor of
Nottelson and found both Smith and the
Union had engaged in unlawful discrimina-
tion with regard to Nottelson in violation
of the Civil Rights Act of 1964. The
Court entered a Second Memorandum and
Order on April 18, 1980 disposing of
various issues, previously left un-
answered.
On April 18, 1980 the District Court
entered a final judgment in favor of
Nottelson, and ordered Nottelson rein-
stated to his former position, together
with all back pay (offset by interim
earnings and unemployment compensation),
attorneys' fees and costs to be shared
equally by Smith and the Union (App.
B-10). The Court further ordered that the
Union accommodate Nottelson's religious
convictions and that Nottelson pay an
amount equivalent to union dues to a
13
nonunion, nonreligious charitable organi-
zation mutually agreed upon by Nottelson
and the Union. Smith filed a timely
appeal of those portions of the District
Court's final judgment that adversely
affected its rights.
The Court of Appeals entered a
decision on February 27, 1981 affirming
the District Court's opinion. The Court
of Appeals confirmed the District Court's
holdings that: 1) a union security pro-
vision pursuant to Section 8(a)(3) of the
National Labor Relations Act is not an
exception to or exemption from the accom-
modation requirements of Section 701(j) of
Title VII (App. A-5), 2) the anti-
discrimination provisions of Title VII
take priority over the NLRA union security
provisions (App. A-5), 3) Smith and the
Union could have accommodated Nottelson
without undue hardship (App. A-5), and 4)
section 701(j) does not offend the First
14
Amendment (App. A-16).
On April 20, 1981 the Court of
Appeals considered the timely petition for
rehearing and suggestions for rehearing en
bane filed by Smith and denied the peti-
tion for rehearing.
Summary of Reasons For Granting The Writ
The Court should grant the writ of
certiorari in order to (a) settle an
important question of federal law, namely
to determine the constitutionality of
$701(j) of the Civil Rights Act, which
question has been decided by federal
district courts and courts of appeal, but
has not yet been resolved by this Court,
and (b) insure uniform adherence to
applicable decisions of this Court.
The decision of the Court of Appeals
in this action is incorrect insofar as it
purports to be bound by the decision of a
state supreme court in Rankins v. Commis-
sion on Professional Competence, 24 Cal.
15
3d 167, 593 P.2d 852 (1979), which held
that the state constitution's religious
discrimination provision could be con-
strued to contain a religious accom-
modation requirement. Clearly, the Court
of Appeals, in reviewing the consti-
tutionality of the federal statutory
requirement, was not bound by the holding
in Rankins.
The Court of Appeals' determination
that §701(j) would pass muster under the
Establishment Clause of the First Amend-
ment was incorrect under the standard
enunciated by this Court in Committee for
Public Education and Religious Liberties
v. Nyquist, 413 U.S. 756 (1973). The
legislative history of §701(j) establishes
that the purpose of the amendment was to
directly assist and advance the interests
of certain religious sects. The appli-
cation of §701(j) has the primary effect
of advancing the interests of religionists
16
over nonreligionists as well as the
beliefs of one sect over those of another.
Finally, in view of the fact that the
initial inquiry in any failure to accom-
modate case is the nature, bona fides and
sincerity of the plaintiff's asserted
religious beliefs, §$701(j) necessarily
entangles government in religion.
This Court should consider and
resolve the §701(j) constitutionality
issue in order to put an end to the era of
uncertainty which has existed in light of
the numerous conflicting decisions which
have emerged in the last several years.
Although at the present time there is no
conflict among the circuits, there remain
pending a number of cases with conflicting
results and strong dissents. Moreover,
the Equal Employment Opportunity Com-
mission has recently adopted revised
guidelines which establish accommodation
requirements that go beyond even the
17
provisions of §701(j) and, in effect,
establish a mandate for religious discrimi-
nation. The time is ripe for this Court
to assess the constitutionality issue and
resolve the uncertainty surrounding the
accommodation provision - for the benefit
of the courts, enforcement agencies,
employers and employees.
The Court of Appeals' holding that
Smith failed to meet its obligation to
accommodate Nottelson's religious beliefs
is squarely contrary to this Court's
ruling in Trans World Airlines v. Hardi-
son, 432 U.S. 63 (1977). This Court has
interpreted the §701(j) accommodation
provision to require no more than a de
minimus cost to the employer. The Court
of Appeals abrogated that standard when it
held there was no undue hardship to
require Smith to violate its collective
bargaining agreement and assume the costs
of a NLRA §8(a)(3) violation in order to
18
accommodate Nottelson under Title VII.
In reaching a conclusion that Smith
had violated Title VII, the Court of
Appeals failed to consider the evidence
concerning Smith's willingness and at-
tempts to accommodate Nottelson. Moreover,
the Court of Appeals never made a de-
termination of whether the costs to Smith
under the proposed accommodation were more
than de minimus, as provided in Hardison,
supra.
The Court of Appeals' determination
that Title VII 57010) creates an ex-
ception to the NLRA §8(a)(3) sanction of
union security clauses is contrary to the
intent of Congress, based on unfounded
authority and incorrect. There is no
evidence of Congressional intent to make
the §701(j) accommodation requirement an
exception to the union security clause
authorization under NLRA §8(a)(3). This
Court has held on numerous occasions that
19
a clear expression of intent is required
for changes of law or policy. Moreover,
the legislative history of numerous
proposed amendments to 88 (a) (3) clearly
demonstrates that Title VII had not
created an exception to the union security
proviso. In addition, the only case
authority cited by the Court of Appeals as
the basis for its decision is without
foundation.
The award of attorneys' fees by the
Court of Appeals, without regard to the
underlying circumstances, was improper.
The Court of Appeals should have reviewed
the arrangement under which the Seventh-
day Adventist church retained and com-
pensated Nottelson's attorney.
Reasons For Granting The Writ
I. THE SEVENTH CIRCUIT'S HOLDING THAT
TITLE VII SECTION 701(j) DOES NOT
CONFLICTS WITH PREVAILING JUDICIAL
INTERPRETATIONS AND IMPROPERLY
CONSTRUES CONGRESSIONAL INTENT
The Court of Appeals addressed the
the §701(j) constitutionality issue and
concluded that the District Court cor-
rectly adopted the holding in Tooley v.
Martin-Marietta Corp., 476 F.Supp. 1027,
1030 (b. Ore. 1979), that $701(j) "pro-
motes the free exercise of religion
without violating the Establishment
Clause." (App. A-16).
The consideration of the consti-
tutionality question by the Court of
Appeals was proper in light of its finding
that the conduct of Smith and the Unio.
violated Title VII (App. A-10 and A-12).
Where a court concludes that the conduct
of the employer or union violated Title
VII, it is also“. . required to decide
whether [that statutory provision] was
constitutionally permissible under the
Religion clauses to the First Amendment."
N. L. R. B. v. The Catholic Bishop of
21
Chicago, 440 U.S. 490, 99 S.Ct. 1313, 1318
(1979).
Smith submits, however, that the
Court of Appeals' holding conflicts with
prevailing judicial interpretation and
improperly construes Congressional intent,
and, accordingly, should be set aside.
Moreover, the constitutionality of §701(j)
involves an important question of federal
law which has not been, but should be,
decided by this Court.
A. The Court of Appeals' Decision Is
Contrary To Prevailing Judicial
Interpretation
Contrary to the assertions of the
Court of Appeals, the federal consti-
tutional question was not determined by
this Court in its summary dismissal of the
appeal in Rankins v. Commission on Profes-
sional Competence, 24 Cal. 3d 367, 593
P. 2d 852, appeal dismissed, 444 U.S. 986,
100 S.Ct. 515 (1979). The Court's action
concerned a state court holding that the
22
state constitution's religious dis-
crimination provision could be construed
to contain a religious accommodation
requirement. The constitutionality of the
federal statutory requirement was not at
issue; neither were the federal legis-
lative history and intent of the federal
legislature called into question. Indeed,
the California Supreme Court recognized
that the constitutional validity of
§$701(j) under the Establishment Clause
"has not been directly decided by the
United States Supreme Court." 593 P.2d at
858.
The Court of Appeals' reliance on
(1975) to conclude that Rankins, supra was
a decision on the merits was improper. In
Hicks this Court held that a federal
district court was bound by this Court's
summary dismissal of an appeal of a
California court's earlier ruling sus-
23
taining the "constitutionality of the very
California obscenity statute which the
District Court had declared unconsti-
tutional. . .." 422 U.S. at 340 (em-
phasis added). Here, a federal, not
state, question is involved and federal
court review is not foreclosed. Further-
more, as the dissent (App. A-21) points
out, the "striking differences" between
the facts and circumstances of Rankins and
the instant case so distinguish the two
actions that the dismissal of the Rankins
appeal cannot be binding upon the Court of
Appeals.
B. The Court of Appeals“ Holding That
Title VII Section 701(j) Does Not
Violate The Establishment Clause Is
Clearly Erroneous
The First Amendment to the Consti-
tution provides in part that "Congress
shall make no law respecting an establish-
ment of religion, or prohibiting the free
24
exercise thereof
In Committee for Public Education and
Religious Liberties v. Nyquist, 413 U.S.
756, 772-773 (1973), this Court discussed
the approach for analyzing whether a
statute is in violation of the Establish-
ment Clause:
[T]o pass muster under the Establish-
ment Clause the law in question,
first, must reflect a clearly secular
legislative purpose,. . .second, must
have a primary effect that neither
advances nor prohibits religion,.
-and, third, must avoid excessive
government entanglement with re-
ligion. . . leitations omitted.]
The Court of Appeals acknowl edged
that the Nyguist test was applicable, but
wrongly concluded that §701(j) would pass
muster under the Establishment Clause.
Analyzing the first part of the
Nyquist test, the Court of Appeals found
that §701(j) has a secular purpose by
looking at the accommodation provision in
terms of the "adverse effect" (of facially
neutral majoritarian employment practices)
25
ruling in Griggs v. Duke Power Co., 401
U.S. 424, 91 S.Ct. 849 (1971), although
the Griggs case dealt with neither a
religious discrimination issue nor a First
Amendment Constitutional question. The
true purpose of the accommodation pro-
vision is clearly evident in the remarks
of Senator Jennings Randolph. 2 In re-
sponse to earlier court rulings regarding
the objections of Sabbatarians to em-
ployment schedules as well as the urgings
of certain religious sects including his
own (Seventh Day Baptist Church), Senator
Randolph introduced the 1972 §701(j)
amendment to Title VII to advance the aims
of various minority religions. He made no
mention of any business necessity or
benefit to the general public, and no
clearly secular legislative purpose is
manifested. Indeed, it is evident that the
purpose of this amendment was to aid
certain sects by giving them a statutory
26
"right" to have their Sabbath practices
accommodated by employers. As stated by
Judge Schwartz in Anderson v. General
Dynamics Convair Aerospace Div., 489
F.Supp. 782, 790 (S.D. Cal. 1980):
In essence, the accommodation pro-
vision mandates religious discrimina-
tion. It requires an overt pref-
erence for the religious beliefs of
certain employees and dictates that
an employer must go out of his way to
accommodate minority beliefs, even if
such accommodation is detrimental to
other employees. As such, its
operation runs directly contrary to
the avowed purpose of Title VII.
The Seventh Circuit attempted to
sidestep the clearly sectarian thrust of
Senator Randolph's remarks in support of
§701(j) by stating that the purpose of the
Statute's anti-discrimination provisions
is to protect employment opportunities and
eliminate the burden on individuals who
would otherwise have to choose between
their jobs and their religious con-
victions. This assertion is more ap-
propriately advanced under §703(a)(1)
27
which is the statutory provision against
religious discrimination in employment.
However, the constitutionality of
58703(a) (1) is not in question here. At
issue is the expressly stated and primary
purpose in the passage by Congress of
57010), of advancing the interests of
certain religious sects. Furthermore, the
fact that a statute may have a legitimate
purpose is not controlling if "it also has
the direct and immediate effect of ad-
vancing religion." Committee For Public
Education v. Nyquist, supra, 783 fn.39.
"Such secular objectives, no matter how
desirable. . .cannot serve today anymore
than they could 200 years ago to justify.
. -@ direct and substantial advancement of
religion." Id.
The second part of the Nyquist test
was met, according to the Court of Ap-
peals, because application of §701(j) does
not have the primary effect of advancing
the interests of religionists over non-
religionists or the beliefs of one sect
over those of another. (App. A-14 and
A-15). The Court of Appeals compares
§701(j) to the statutory exemption to
military service for conscientious ob-
jectors, which requires no particular
sectarian affiliation or theological
position and promotes only "the principal
of supremacy of conscience," upheld in
Gillette v. United States, 401 U.S. 437,
453 (1971).
Contrary to the Court of Appeals
belief, the draft exemption cases do not
provide the appropriate standard against
which to measure the viability of §701(j).
The draft exemption cases do not, as does
$701(j), establish that Congress has the
constitutional authority to require
private employers to accommodate religious
beliefs. Instead they approve the au-
thority of Congress to exempt religionists
29
from military service obligations imposed
by the government. Rather than es-
tablishing or advancing the beliefs of
these religionists, the draft exemption
was enacted out of the concern that the
demands of a secular state may not over-
ride fundamental principles of conscience
and religious duty. The question of
whether the government may impose upon
private employers a duty to give pref-
erences to certain religious beliefs is
not resolved by those decisions.
Religious accommodation cases usually
do not present tensions between government
requirements and religious beliefs, but
rather involve the authority of the
government to legislate affirmatively to
advance religious beliefs in a manner that
may require employers such as Smith to
treat religious employees differently than
other employees. As stated so aptly by the
Ninth Circuit in Yott v. North American
30
Rockwell Corp., 501 F.2d 398, 400 (1974):
"Nor can we hold. . that conscientious
objector military service cases are
similar. No law of the land requires
plaintiff to work only at N.R." The
rationale that would restrain the federal
government power to enforce military
conscription cannot be applied to a
congressional decision that religious
beliefs of an employee are paramount to
the nondiscriminatory business practices
of an employer when each private party,
employee and employer, is equally entitled
to the same First Amendment protections.
Similarly, the "public welfare
legislation" cases do not provide an
appropriate standard against which to
measure the constitutionality of $701(j).°
These cases involve statutes enacted by a
state or the federal government, such as
unemployment compensation laws, and a
conclusion by the court that the benefits
31
afforded under such statutes must be
available to all members of the general
public regardless of religious beliefs.
The exemptions or benefits provided under
these cases are not analogous to the
preference established by the Court of
Appeals' decision.
The Free Exercise Clause, which is a
bar to government action prohibiting
religious freedom, cannot be used to
justify a statute which improperly ad-
vances religion. In this case, it is the
conduct of private, non-governmental
entities which is being questioned -
conduct beyond the scope of the Free
Exercise Clause.
The obvious effects of the Court of
Appeals' construction of §701(j), es-
pecially in the context of a union dues
payment requirement, is to favor certain
religious sects over others, and religious
employees over the non-religious, by
32
conferring upon members of such sects the
benefits of collective bargaining by
unions without the burden of monetary
support to the unions for such efforts.
Nottelson, upon his reinstatement at
Smith, became entitled to wages at the
union negotiated rate, insurance coverage,
holidays and various other benefits
provided through union representation, and
Nottelson did not have to contribute to
the Union's support in order to maintain
and perpetuate these benefits. All other
employees, regardless of their wish to
support or reject the Union, or their
interest in obtaining such benefits, must
pay union dues. Clearly Smith may refuse
to accommodate employees, no matter how
important or sincere their beliefs, when
such accommodation is requested on grounds
not based in religion.
Under the Court of Appeals' ruling
Smith is even required to favor the
33
interests of particular minority sects
over the interests of other religious
groups (and nonreligious groups) with
respect to requests for weekend time off,
to meditate during work hours, to be
excused from work early, to be excused
from dress code requirements, as well as
exemption from collective bargaining
contractual provisions.
Analyzing the final part of the
Nyquist test, the Court of Appeals sum-
marily concluded there was no entanglement
problem because the government is required
only to determine whether a belief is
religious within the meaning of the
Statute and whether it is sincerely held.
Smith submits that inquiry as to the
sincerity of an employee's bona fide
religious belief will cause courts to
become entangled in internal disputes on
matters of religious doctrine. Not only
will courts become involved in such
34
inquiries but the EEOC and employers will
be forced to analyze an employee's re-
ligious beliefs in order to determine
whether §701(j)'s accommodation require-
ment has been triggered.
Both the Court of Appeals and this
Court have strongly supported the view
that strict constitutional limitations
exist upon the government's authority to
determine the rights and responsibilities
of private parties where religion is
involved. N.L.R.B. v. The Catholic Bishop
of Chicago, supra. This Court observed in
New York v. Cathedral Academy, 434 U.S.
125, 133-134 (1977): "(T]he prospect of
church and state litigating in court about
what does or does not have religious
meaning touches the very core of the
constitutional guarantee against religious
establishment."
As noted by Judge Pell in his dis-
sent, the Court of Appeals' abrogation of
35
its ruling in Catholic Bishop, supra, by
imposing on Smith the necessity of accom-
modating its contractual obligation, work
rules and general employment practices to
the diverse practices of the many re-
ligions to be found among its employees,
results in just the unconstitutional
entanglement and First Amendment violation
which the majority claimed did not exist.
The purpose of §701(j) as well as its
primary effect is to benefit particular
religions or religion generally, and
enforcement of that section inevitably
leads to impermissible government en-
tanglement with religion.
C. This Court Should Settle The Con-
stitutionality Question Involving
Title VII Section 701(j)
A number of decisions have considered
the constitutionality of §701(j) in light
of the Nyquist test with inconsistent
results. These decisions reveal a tor-
tuous and inconclusive path toward reso-
lution of this difficult issue. The
36
procedural history of these cases dealing
with the accommodation requirements of
§$701(j) reveals repeated appeals and
remands resulting in confusion and incon-
sistent and evasive decisions,“ all of
which point to the need for a resolution
of this issue by this Court.
Although there is no conflict among
the circuits at the present time, there
remain pending a number of cases wherein
the constitutionality issue is being
litigated, and resolution of the issue by
this Court would provide the necessary
guidance for courts as well as the EEOC,
employers and employees and would elimi-
nate further time-consuming, expensive
litigation on this issue in religious
discrimination cases.
As explained in detail in earlier
sections, the §701(j) accommodation
requirement goes far beyond the basic
37
nondiscrimination requirements of Title
VII and actually requires an employer to
grant preferential treatment to employees
with various religious convictions. While
$703(a)(1) requires that employees with
religious convictions de placed on an
equal footing with other employees by its
prohibition against discrimination on
religious grounds, §701(j) impermissibly
requires employers to place such employees
with religious convictions one step above
other employees and to grant such em-
ployees preferential treatment, solely on
the basis of their religious beliefs or
practices.
It should be borne in mind that
notwithstanding this Court were to find
$701(j) unconstitutional, discrimination
in employment on the basis of religion
would continue to be unlawful under Title
VII of the Act. Finding §701(j) con-
stitutionally infirm would not suggest
that employers should be allowed to
discriminate against employees based on
religion or that employers should not make
reasonable accommodation, but only that
the government oversteps its consti-
tutional boundaries by imposing a require-
ment that employers must accommodate
religious (but not nonreligious) beliefs
and practices.
II. THE SEVENTH CIRCUIT'S HOLDING THAT
SMITH FAILED TO MEET ITS OBLIGATION
TO ACCOMMODATE NOTTELSON'S RELIGIOUS
BELIEFS IS SQUARELY CONTRARY TO THIS
COURT'S RULING IN HARDISON AS WELL AS
TITLE VII
The Court of Appeals concluded that
the District Court did not err in finding
that Smith violated Title VII, that a
collective bargaining agreement did not of
itself provide a defense for Title VII
violations and that Trans World Airlines
v. Hardison, 432 U.S. 63 (1977) was not to
the contrary. (App. A-11). The Court of
Appeals conceded that Smith was forced,
39
due to the Union's refusal to accommodate
Nottelson's request for an exemption from
payment of his union dues, to choose
between two courses of action, each of
which involved litigation, costs and
consequent penalty. "The choice was
between the cost of grievance proceedings
and the cost of defending against and
satisfying plaintiff's [Nottelson's] Title
VII claim." (App. A-12) (emphasis added).
For the reasons discussed below, Smith
submits that the Court of Appeals' holding
is contrary to this Court's decision in
Hardison as well as to the provisions of
Title VII.
The extent to which either an em-
ployer or union must go to meet its burden
of proof regarding reasonable accom-
modation has never been defined by stat-
ute. This Court, however, has interpreted
§701(j) to require no more than a de
minimus cost to the employer; nor can
40
reasonable accommodation result in unequal
treatment of employees on the basis of
religion, regardless of whether the
discrimination is directed against ma-
jorities or minorities, Hardison, supra.
Although the facts in Hardison were not
precisely the same (being an issue of
absence from work for religious reasons
rather than non-payment of union dues),
the choice faced by TWA was similar. This
Court noted that TWA faced a lesser
conflict between collective bargaining
requirements and Title VII (no other
federal statute was involved) and held:
We agree that neither a collective
bargaining contract nor a seniority
system may be employed to violate the
statute, but we do not believe that
the duty to accommodate requires TWA
to take steps inconsistent with an
otherwise valid agreement. 432 U.S.
63, 79 (footnote omitted).
This Court then interpreted the
$701(j) accommodation provision to require
no more than a de minimus cost to the
41
employer. To require TWA to bear more
than a de minimus cost in order to give
Hardison Saturdays off is an undue hard-
ship." 432 U.S. 63, 84. This Court held
that such costs to TWA as higher wages or
lost efficiency in other jobs were more
than de minimus and therefore constituted
an undue hardship for TWA so that it was
exempted from the §701(j) accommodation
requirement. If such was the standard for
determining an undue hardship in Hardison,
it was an abrogation of that standard for
the Court of Appeals to require that Smith
assume the costs of extensive litigation
and resulting penalties over what would be
a clear violation of the NLRA §8(a)(3) in
order to accommodate Nottelson under Title
VII.
In Hardison, supra, this Court also
cautioned against application of the
§701(j) reasonable accommodation standard
to result in unequal treatment of em-
42
ployees on the basis of their religion.
Certainly the Court of Appeals has disre-
garded this element of the case because
Smith, under its holding, is required to
accommodate Nottelson by waiving a pro-
vision of the collective bargaining
agreement solely on the basis of Not-
telson's religious beliefs, Any other
Smith employees who may have equally
serious objections to the payment of union
dues, whether for personal, moral, politi-
cal or other reasons, will not be entitled
to any such accommodation or special
treatment.
Both the Court of Appeals, in Redmond
v. G.A.F. Corp., 574 F.2d 897 (1978) and
this Court in Hardison, supra, have
interpreted the requirements of §701(j) as
not mandating that an employer actually
carry out an accommodation, so long as
that employer fulfills its obligations by
proving that any proposed accommodation
43
would create an undue hardship. Notwith-
standing the employer in Hardison, as
Smith did in the instant case, indicated
its willingness to accommodate the plain-
tiff's religious beliefs and made efforts
toward accommodation of the employee's
religious beliefs, this Court never stated
that such efforts must be successful in
order for $701(j) to be satisfied or that,
after accommodation proposals are made and
rejected, the employer must make addi-
tional efforts to avoid liability under
Title VII. Smith has met the standard set
by this Court in Hardison by showing that
it took all steps possible to achieve an
accommodation for Nottelson short of
causing itself the undue hardship of
litigation for violation of the NLRA
88 (a) (3).
In affirming the District Court's
holding, the Court of Appeals concluded
that Smith had violated Title VII. How-
44
ever, the District Court ignored, or at
least made no findings of fact as to
Smith's actions with regard to Nottelson,
Smith's willingness to waive the union
security clause and Smith's attempts,
though unsuccessful, to accommodate
Nottelson's religious beliefs or Smith's
attempts to persuade the Union to accept
Nottelson's suggested accommodation.
Notwithstanding the District Court was
silent on these points, both the District
Court and the Court of Appeals found Smith
jointly liable with the Union for failure
to accommodate Nottelson's beliefs.
Essentially, the lower courts looked only
at the evidence pertaining to Nottelson's
attempt to reach an accommodation with the
Union over the payment of union dues.
Moreover, neither the Court of Appeals nor
the District Court determined whether the
costs to be borne by Smith under the
proposed accommodation were de minimus or
45
more than de minimus. If the costs to
Smith under the proposed accommodation
were more than de minimus, then this
Court's holding in Hardison, supra would
permit Smith to assert the undue hardship
defense to the proposed accommodation.
Accordingly, Smith submits that neither
the Court of Appeals nor the District
Court followed the appropriate standard
set forth in Hardison with respect to
Smith.
In support of its conclusion that
Smith violated Title VII, the Court of
Appeals relies on a very narrow inter-
pretation and reading of Hardison, supra
in an attempt to distinguish it from the
case at bar and to discredit Smith's
claims of undue hardship. The Court of
Appeals quotes, out of context, the
following clause in an attempt to justify
its decision:
Indeed, the [Supreme] Court expressly
stated that "neither a collective
46
bargaining agreement nor a seniority
system may be employed to violate
Title VII." (citation omitted) (App.
A-11).
In Hardison, this Court qualified
that statement with the following clause:
». . .but we do not believe that the duty
to accommodate requires TWA to take steps
inconsistent with an otherwise valid
agreement." 432 U.S. at 79. In the
instant case, Smith should not have been
required to breach the provisions of its
collective bargaining agreement with the
Union.
III. THE SEVENTH CIRCUIT'S HOLDING THAT
TITLE VII SECTION 701(j) CREATES AN
EXCEPTION TO THE NLRA §8(a)(3)
SANCTION OF UNION SECURITY CLAUSES IS
CONTRARY TO THE INTENT OF CONGRESS,
IS BASED ON UNFOUNDED AUTHORITY AND
IS INCORRECT
The Court of Appeals held that the
union security provisions of the National
Labor Relations Act did not relieve an
employer or union of the duty of at-
tempting to make reasonable accommodation
47
to the individual religious needs of its
employees. (App. A-8). In construing the
relationship between Title VII §701(j) and
NLRA §8(a)(3) the Court of Appeals noted
that the question of religious accom-
modation was not addressed by Congress
when it was considering enactment of a
union security clause in 1947. (App.
A-7). There is also no evidence of record
that Congress in passing §701(j) in 1972
intended to carve out a "religious ob-
jector" exception to §8(a)(3)'s union
security requirement. The Court of
Appeals attempted to resolve such lack of
Congressional expression on the matter by
ruling that the later statute implied an
exception to the earlier, (App. A-7 and
A-8) citing as authority the unfounded and
erroneous Sixth Circuit opinion in
McDaniel v. Essex International, 571 F.2d
338 (1978).
It has been well settled that union
48
and management enforcement of a statu-
torily authorized union security provision
against an individual who is seeking, on
religious grounds, to be exempted from the
obligation to pay union dues does not
violate the Free Exercise Clause of the
First Amendment to the Constitution.°®
Given the numerous times conflicts between
some religions and the union security
provisions of §8(a)(3) have been resolved
by the federal courts of appeal in favor
of supporting the principle of the union
shop, as opposed to various persons'
religious objections to paying dues, it is
clear that 88 (a) (3) is supported by strong
precedent.
In light of such support, if §701(j)
is to be construed as providing an ex-
ception to the statutory authorization for
union security provisions, there must be
some clear indication from Congress that
it intended §701(j) to amend §8(a)(3) in
49
that fashion. This Court has repeatedly
emphasized that "No changes of law or
policy are to be presumed. . .unless an
intent to make such changes is clearly
expressed." Fourco Glass Co. v. Transmirra
Products Corp., 353 U.S. 222, 227 (1952).
See also Muniz v. Hof an, 422 U.S. 454,
470 (1975); United States v. Ryder, 110
U.S. 729, 740 (1884). Similarly, this
Court has held that it is a "cardinal
rule" of construction that "repeals by
implication are not favored." Morton v.
Mancari, 417 U.S. 535, 549 (1974), and
cases cited therein.
The legislative history of §701(j),
however, provides no indication that such
section was to have any effect on the
union security proviso of §8(a)(3), or
that the problem of religious objections
to payment of dues was even mentioned or
considered. The only cases discussed or
included in the legislative history of
§701(j) involved Sabbatarians who sought
accommodation with regard to their work
schedules. (See App. C). It is note-
worthy that as late as March 30, 1972,
after the March 24, 1972 passage of
§701(j), the EEOC's position on this issue
was that "a union shop was not unlawful"
and that a "Charging Party's refusal [to
pay dues] on religious grounds is pro-
tected by neither Title VII nor the First
Amendment." Sixth Annual Report, Equal
Employment Opportunity Commission, p.12
(1972).
Equally significant are the facts
that: (1) from 1972 to late 1980, all the
many attempts to provide a broad "re-
ligious objector" exemption to the NLRA's
6 and (2)
agency shop provisions failed;
when it included a limited religion-based
dues exemption in the 1974 non-profit
hospital amendments to the NLRA, Congress
did not indicate in any way that Title VII
51
or §701(j) already provided such an
exemption with regard to hospitals or any
other employer and (3) Congress finally
passed, in late 1980, a broad religious
objector exemption amendment to the NLRA
$8(a)(3) thus making it clear that Con-
gress itself did not view Title VII
$701(j) as having the effect of creating
such an exemption, H.R. 4774, (PL 96-593).
In Hardison, supra, this Court
stated, in response to contentions that
the duty to accommodate "takes precedent
over both the collective bargaining
contract and the seniority rights of TWA's
other employees:"
Collective bargaining, aimed at
effecting workable and enforceable
agreements between management and
labor, lies at the core of our
national labor policy, and seniority
provisions are universally included
in these contracts. Without a clear
and express indication from Congress,
we cannot agree with Hardison and the
EEOC that an agreed-upon seniority
system must give way when necessary
to accommodate religious observances.
432 U.S. 63, 79.
The Court's reasoning is just as
applicable to contractual union security
provisions, which are specifically au-
thorized by federal statute, and are,
except in right-to-work states, virtually
"universal." As discussed above, the
legislative history of §701(j) contains no
"clear and express indication" that
Congress intended it to provide a
religious-based exception to union se-
curity. It is therefore also apparent
that the sole case upon which the Court of
Appeals relied in holding that Congress so
intended, McDaniel, supra is in error.
McDaniel, in fact, cited Cooper v. General
Dynamics, Convair Aerospace Div., 533 F.2d
163, 169-170 (Sth Cir 1976), cert. denied,
433 U.S. 908 (1977), as its sole authority
for the proposition that §701(j) does
provide a religious exemption to union
security. However, a thorough reading of
53
the Cooper holding will reveal that the
5th Circuit fabricated its ruling on that
issue through syntactical analysis, citing
no competent authority in its support. It
is clear that holdings in Cooper and its
progeny, McDaniel; Anderson v. General
Dynamics, supra; Tooley v. Martin-Marietta
Corp., supra, must fall when confronted by
the record of the Congressional debate
with respect to the purpose and scope of
87010).
It is well established that the
significant labor peace policy goals
supporting the NLRA union security pro-
visos prevail over a religion-based claim
for exemption from the union dues obli-
gation. There is no clear authority that
holds otherwise. As the Court of Appeals
stated previously, with respect to con-
struction of a statute:
If resort to legislative history is
had, the statements of those who
supported the legislation and secured
its passage will be accepted in
54
determining its meaning. Union
Starch & Refining Co. v. National
Labor Relations sara, 86 F.2d 1008
(1951).
This Court's acceptance of the
statements of those who secured the
passage of §701(j) would require a re-
versal of the Court of Appeals' holding as
to the priority of §701(j) over the union
security clause provisions, and a finding
that NLRA §8(a)(3) constituted an ex-
emption from the duty to accommodate
religious beliefs imposed by Title VII.
IV. THE SEVENTH CIRCUIT'S HOLDING WITH
RESPECT TO THE AWARD OF ATTORNEY'S
FEES TO NOTTELSON WAS ERRONEOUS
In reviewing the propriety of the
award of attorney's fees to Nottelson, the
Court of Appeals concluded that such award
was proper and whatever Nottelson elected
to do with the funds was his own business
(App. A-17). Smith submits that the award
of attorneys fees to Nottelson on such
basis, in view of the unusual cir-
cumstances in the litigation of this
matter, was improper.
Nottelson's attorney indicated that
the cost of attorneys' fees involved in
this litigation were borne solely by the
Seventh-day Adventist Church. The church
retained Nottelson's attorney and paid for
legal services rendered on Nottelson's
behalf. Nottelson has borne none and will
continue to bear none of the costs as-
sociated with his legal representation in
this matter. Moreover, Smith and the
Union were informed by Nottelson's at-
torney that any attorneys' fees awarded to
Nottelson would be remitted to the church
pursuant to an arrangement Nottelson's
attorney has with the church. An award of
attorneys' fees under these circumstances
was an abuse of discretion.
The Seventh-day Adventist Church has
engaged in various legislative efforts to
advance its basic tenet (that church
56
members not join or financially support
labor unions) through amendment to Title
VII of the Civil Rights Act as well as
financed this litigation. As such, the
church has a real and direct interest in
the outcome of this litigation. To award
attorneys' fees under these circumstances,
especially where the church will be
reimbursed by Smith and the Union in this
matter violates the principle set forth in
Nyquist, supra, and constitutes an estab-
lishment of religion. Certainly the
church's intent to finance this litigation
cannot be construed to be a secular
purpose. Although the church has every
right to expend church funds for what it
perceives to be a legitimate church
objective, neither Smith nor the Union
should be required to subsidize this
effort through the payment of attorneys'
fees.
In Sprogis v. United Air Lines, 517
57
F.2d 387 (7th Cir 1975) the Court of
Appeals affirmed the denial of attorneys'
fees to a successful Title VII litigant,
taking note that another organization had
assumed the full financial burden for
providing legal services to the plaintiff.
The court stated: "Although attorneys'
fees have been granted in cases with
organization sponsorship they are not
awarded without regard to the underlying
circumstances of the case." (emphasis
added). The role of the Seventh-day
Adventist Church in financing this liti-
gation is quite different than the in-
terest of "public interest organizations
which typically represent parties in civil
suits. . . ." Sprogis, supra. The Fifth
Circuit in Johnson v. Georgia Highway
Express, Inc., 488 F.2d 714, 718 (5th Cir
1974) cautioned: "In no event, however,
should the litigant be awarded a fee
greater than he is contractually bound to
58
pay, if indeed the attorneys have con-
tracted as to amount." In a recent case,
National Treasury Employees Union v.
United States Department of the Treasury,
CA DC, Slip Op. No. 78-1085, June 19,
1981, the Court of Appeals for the Dis-
trict of Columbia held that a union whose
salaried attorneys render legal services
for which they are entitled to court-
awarded fees from the federal government
may recover only the value of expenses
incurred, not market value fees. Other-
wise the union could turn a windfall
profit on the services of its attorneys.
Smith submits the Court of Appeals erred
in failing to closely analyze the ar-
rangement under which the Seventh-day
Adventist Church retained and compensated
Nottelson's attorney.
Conclusion
For all of the reasons set forth
herein Smith submits that the Court should
59
grant a writ of certiorari to the United
States Court of Appeals for the Seventh
Circuit.
Respectfully submitted,
Jolene Lang Shellman
3533 North 27th Street
Milwaukee, WI 53216
414/447-3940
Attorney for Petitioner
July 15, 1981
Page citations to the materials con-
tained in the appendices to this
Petition are to the pages of the
respective appendices.
The legislative debate appears as
Appendix C of this Petition.
Sherbert v. Verner, 374 U.S. 398
(1963), Walz v. Tax Commission of Cit
of New York, 307 U.S. 667 (1970), and
recently Thomas v. Review Board of the
Indiana Unemployment Security Division,
Constitutionality of §701(j) upheld in:
Cummins v. Parker Seal Co., 516 F.2d
t » a rmed by
equally divided Supreme Court, 429 U.S.
65 (1976); Tooley v. Martin Marietta
Cor ., 476 F.Supp. 1027 1979, affirmed
0-3029, Slip op., F.2d
(9th Cir. 1981); Jordan v. North
Carolina Nat'l. Bank, 399 F.Supp. 172
„D. N. Car. ; Anderson v. General
Dynamics Convair 8 ace Div., 400
-Supp. » reversed
No. 80-5373, Slip — „ eRe
(9th Cir. 1981); Burns Vv. Southern
Pacific Transportation Co., 369 F.2d
403 (Sth Cir. 1979), rem'd 22 PEP 1229;
McDaniel v. Essex International, Inc.,
° t r. °
$701(j) found unconstitutional in:
Cummins v. Parker Seal Co., 516 F.2d
F. (Celebrezze
dissenting); Anderson v. General
Dynamics Convair Keros ace Div., 489
„Jupp. ;
Peoples Natural Gas, 464 Supp. 622
B. Past tu. North Amer ican
61
Rockwell Corp., 428 F.Supp. 763 (C.D.
Cal. 1977); 1 v. Butler's Shoe
Corp. 25 PEP Cases 628 (N.D. Ga.
Buckley v. Amer Had Federation of
elevision an F.2d
305 (ind Cir.), TF Tented’ 419 U.S.
1093 (1974); Hammond v. United Paper-
makers and Paperworkers Union, 760 F. 2
409 U.S.
1028 (1972); Linscott V. Millers Falls
Co., 316 F. Supp. 1369 (D. Mass. 1970),
aff'd 440 F.2d 14 ag: 3 —
denied, 404 U.S. 872 (1971); Gra
Gulf, Mobile & Ohio Railroad Co., 110
cert. denied, 400 U.S. 1001 (1972);
351 1048 2257195 Department v. Hanson,
. 5 (1956).
See discussion in Yott v. North Ameri-
can Boekwo}} 501 F. n.4
74), and 8. 2109, 93rd
Cong., ist Sess. (1973); H. R. 16541,
93rd Cong, 2nd Sess. (1974); H.R.
1528, 94th Cong., Ist Sess. (1975);
H.R. 14911, 94th 7.711 2nd Sess.
(1976); H.R. 14913 4th Cong., 2nd
Sess. (1976); H.R. 14916, 94th Cong.,
2nd Sess. (1976); H.R. 14920, 94th
Cong., 2nd Sess. (1976); H.R. 352, 95th
Cong., Ist Sess. (1977); H.R. 9009,
95th Cong., Ist Sess. (1977); H.R. 9113
95th Cong., Ist Sess. (1977); H.R.
9368, 95th Cong., Ist Sess. (1977);
H.R. 9596, 95th Cong., Ist Sess.
(1977); S. 2239, 95th Cong., Ist Sess.
(1977); S. 1693, 96th Cong., Ist Sess.
test H.R. 4774, 96th Cong., Ist Sess.
1979).
See the discussion of this issue by
Judge Rives in this dissent in Cooper
v. General Dynamics Convair Aerospace
APPENDIX A
Opinion of the United States Court
of Appeals for the Seventh Circuit,
Nottelson and EEOC v. Smith Steel
Workers and A. O. Smith Corporation
. t r.
A
In the
United States Court of
Bor the Seventh Cirrun
Nos. 80-1678 and 80-1705
DARREL C. NOTTELSON,
Plaintiff-Appellee,
and
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Intervenor-Appellee,
*
SMITH STEEL WORKERS D. A. L. U. 19806, AFL-CIO,
and A. O. SMITH CORPORATION,
Defendants-A ppellants.
ARGUED OCTOBER 27, 1980—DEcIDED FEBRUARY 27, 1981
Before SWYGERT, CUMMINGS, and PELL, Circuit Judges.
CUMMINGS, Circuit Judge. Plaintiff Darrel C. Nottel-
son brought this action against his employer, defendant
A. O. Smith Corporation (Smith), and his union,
defendant Smith Steel Workers D.A.L.U.' 19806, AFL-
CIO (Union), under 42 U.S.C. § 2000e-5(fX1) and (3)
ng inter alia that defendants had discrimina
against plaintiff because of his religion in violation of
! Directly Affiliated Local Union.
A-2
2 Nos. 80-1678 & 80-1705
Title VII of the Civil Rights Act of 1964, as amended (42
U.S.C. § 2000e et seq.), in that they failed “reasonably to
accommodate” within the meaning of Section 7010) of
that Act (42 U.S.C. § 2000e(j), note 4 infra) to plaintiff's
religious objection to the payment of union dues. The
district court ruled in favor of plaintiff on this claim
with respect to both defendants and they have appealed.
We affirm with one slight modification of the computa-
tion of damages.
I. Introduction
Plaintiff, a resident of Menominee Falls, Wisconsin,
was a production worker at Smith from October 30,
1947, to July 11, 1975, and a member of the Union from
October 30, 1947, to April 15, 1975. The Union is the
exclusive bargaining agent for the collective bargaining
unit in which plaintiff was employed, and the collective
bargaining agreement between Smith and the Union
contains a union security clause requiring membership
in the Union as a condition of continued employment
with Smith.
In 1 1966, plaintiff joined the Seventh-day Ad-
ventist Church, which teaches that it is morally wrong
to be a member of or pay dues to a labor organization.
In December 1974, plaintiff informed the Union that he
could no longer in good conscience support it financially
because of his religious convictions and requested the
Union to accommodate his religious objection to the
payment of union dues by permitting him to pay an
equivalent sum to a non-religious, non-union charity. He
: paying his dues on January 1, 1975, and to show
his good faith making contributions to the
American Cancer Society. The Union refused the
requested accommodation and in March 1975 notified
plaintiff that he would have to pay his delinquent dues
or be discharged from Smith pursuant to the union
security clause in the collective franing agreement.
Smith indicated that it was wi ing to make an
accommodation but not without the Union’s approval.
Plaintiff thereupon filed a charge of unlawful employ-
ment practices with the Equal Employment Opportuni-
Nos. 80-1678 & 80-1705 3
ty Commission (EEOC) office in Milwaukee, Wisconsin,
and the EEOC referred the matter to the appropriate
Wisconsin agency on April 2.
On April 15, the Union expelled plaintiff from its
membership for failure to pay dues, and on April 17
informed him that he would be discharged. On April 23,
plaintiff initiated the present litigation, seeking tem-
rary and 2 injunctive relief pending final
isposition of the charges filed with the EEOC. Smith
discharged plaintiff on April 24. On April 30, Jud
Warren issued a — ns fe restraining order which,
with extensions, restored plaintiff to his job until July
10. On that date, Ju Warren dismissed the action for
want of a present EEOC right-to-sue letter to plaintiff,
without ee to reinstatement upon receipt of such
a letter. F.Supp. 928.
The Union in insisted on plaintiff's discharge and
Smith complied, informing plaintiff not to come to work
on July 11. He has not returned to em — at Smith
since that date. Smith also refused, because of the
Union’s contractual objection, to defer plaintiff's termin-
ation until his six weeks’ vacation time was used but did
pay him for that period. The EEOC issued plaintiff a
right-to-sue letter on July 21, and on October 29
plaintiff filed his second amended and sup lemental
complaint against defendants pursuant to an October 22
order granting his July 22 motion for leave to do so.
In Count I Smith and the Union were alleged to have
discriminated against plaintiff because of his religion in
violation of Sections 703(aX1)* and 703(c\1) of the Civil
2 Section 703(aX1) (42 U.S.C. § 2000e-2(aX1)) provides i
pertinent part 1). it shall be an aint —
practice for an employer
“to fail or refuse to hire or to discharge any individual, or
otherwise to discriminate against individual * * *
because of such individual’s * * * religion *
* Section 7031) (42 U.S.C. § 2000e-2(cX1) ) provides in
rtinent t it shall
pe — 1 . 1 an unlawful employment
(Footnote continued on following page)
A-4
4 Nos. 80-1678 & 80-1705
Rights Act of 1964 respectively in that they had failed to
show that they could not reasonably accommodate
plaintiff's religious observance “without undue hardship”
as required by Section 701(j)* of the Act. The Union was
also alleged to have violated 703(c\(3)' of the Act by
enforcing the union security provision of the collective
bargaining agreement so as to cause Smith to dis-
criminate against plaintiff on the basis of religion.
Plaintiff therefore sought reinstatement, actual damages
of $50,000, exemplary damages of $100,000 and reason-
210 uo” fees (then supposedly amounting to
In Count II, plaintiff sought identical relief, alleging
that the union security clause of the collective bargain-
ing A had been enforced under the sanction of
the National Labor Relations Act (NLRA) in contraven-
tion of the First, Fourth, Ninth, and Fourteenth Amend-
continued
“to exclude or to expel from its membership, or otherwise
to discriminate against, any individual because of his * * *
religion. * * *.”
4 Section 701(j) (42 U.S.C. § 2000e(j) ) provides:
“The term ‘religion’ includes all aspects of religious
observance and 1 as well as belief, unless an
employer demonstrates that he is unable to reasonably
accommodate to an employee’s or prospective employee's
religious observance or practice without undue hardship
on the conduct of the employer’s business.”
Although the undue hardship defense is made expressly
available only to “employers,” it has been held to apply to
unions as well. See e.g., Yott v. North American u
Corp., 602 F.2d 904, 9th Cir. 1979); McDaniel v. Essex
International, 571 F.2d 344 (6th Cir. 1978). The parties
here do not contend that Judge Warren erred in so holding in
this case (481 F.Supp. at 479), and we note that if the Section
were construed otherwise, unions would be armed with an
appealing equal protection claim.
5 Section 703003) (42 U.S.C. es 3 rovides in
pertinent * 2 ¢ shall be vos un 1 —
practice for a labor organization
“to cause or 2 to cause an em ayer to discriminate
against an individual in violation oF is section.”
Nos. 80-1678 & 80-1705 5
ments.’ Sections 8(aX3) and 8(b\X2) of the NLRA (29
U.S.C. §§ 158(aX3) and 158(b\(2)) recognize the validity
of union — clauses and the concomitant right of a
union to demand discharge of an employee for failure to
pay dues.
The Union in its ——ů— a and at trial took
the position that enforcement of the union ir
clause against plaintiff was protected under the NLR
and therefore did not violate Title VII and that Title
VII's Section 7010), as 4 4 to be applied, violated the
Establishment Clause of the First Amendment. Smith
asserted the affirmative defense of undue hardship.
claiming that it had done all it could to accommodate
plaintiff without causing the Union to initiate arbitra-
tion proceedings to enforce the union security clause and
to file an unfair labor practice charge to the same effect
under the NLRA.
The district court’s findings of fact and conclusions of
law are contained in three memorandum opinions reported
at 423 F.Supp. 1345, 481 F.Supp. 756, and 489 F.Supp.
94. Judge Warren held first, in denying the Union’s
motion to dismiss Counts I and II, that the union security
rovision was not a defense to the Title VII claim. 423
Supp. at 1347-1348. Subsequently, he reaffirmed and
_ Clarified this ruling in response to defendants’ 1
motion for reconsideration, holding that the anti-
discrimination provisions of Title VII take 4 over
the i security clause provisions of the NLRA.
489 F.Supp. at 96-97. Following the trial, Judge Warren
entered his findings that defendants could have accom-
modated plaintiff's c) rity-substitute proposal without
undue hardship and that they had therefore violated
Title VII by failing to do so. 481 F.Supp. at 759-760. He
also held, in denying defendants’ motion to reconsider,
that Section 70160 oes not violate the Establishment
* Pendent Count III arose under the Wisconsin Constitution
and was dismissed by the district court on December 20, 1976,
on the ground that a state court would be the more
appropriate forum for its resolution. 423 F.Supp. at 1348.
t ruling is not involved in this appeal.
A-6
6 Nos. 80-1678 & 80-1705
Clause. 489 F.Supp. at 97-98. He declined to decide the
constitutional questions raised by plaintiff in Count II of
the amended and supplemental complaint because
plaintiff had been afforded complete relief on the
ie claim set forth in Count I. 489 F.Supp. at
The final judgment, entered on April 18, 1980,
awarded plaintiff back pay, attorney’s fees and costs, to
be borne equally by Smith and the Union. Smith was
ordered to reinstate plaintiff no later than April 28,
1980; plaintiff was ordered to contribute to a non-
religious charity to be eed upon by plaintiff and the
Union “an amount equal to the union dues he would
have owed had he continued to work at Smith during
the relevant period;” and the Union was enjoined from
interfering with the judgment by filing a grievance with
a Labor Relations Board. 489 F.Supp. at
The Union and Smith filed notices of appeal on May 9
and 15 respectively, and the cases, docketed here as Nos.
80-1678 and 80-1705 ageing were consolidated by
this Court pursuant to motions by the parties. On June
19, we granted leave to the EEOC to intervene on
plaintiff's behalf.
II. The Duty to Accommodate
It is undisputed that Title VII requires unions and
employers to make a reasonable accommodation of an
employee’s religiously motivated conduct or to show that
to do so would work an undue hardship. Smith concedes
that it was so required in this case. The Union, however,
has adamantly maintained from the outset of the events
leading to this litigation that Title VII is preempted
One of the claims by defendants in this appeal is that the
district court erred or abused its discretion in failing to
dismiss Count II. Because we e with the district court
that complete relief is afforded plaintiff under Title VII, we
find no abuse of discretion and decline to exercise our plenary
apiperity to reach the merits of plaintiff's constitutional
claim.
A-7
Nos. 80-1678 & 80-1705 7
here by the NLRA. As noted, Sections 8(aX3) and 8(b)\2)
of the NLRA permit an employee in a union shop to
discharged for failure to pay union dues. The thrust of
the Union’s position is that these provisions represent a
Congressional determination of the balance to be struck
between the national policy of promoting labor peace
and the national policy peoecting the religious needs of
individual employees and therefore constitute an exemp-
pon 1770 duty to accommodate otherwise imposed by
itle :
The district court rejected this argument and held
that to the contrary Title VII creates an exception to the
NLRA’s sanction of union security clauses. 489 F.Supp.
at 96-97. We agree. As the Sixth Circuit concluded after
extensive discussion of this issue, It ſhere is no indica-
tion in the text or legislative history of [the NLRA] that
Congress intended either subsection 86009 or 8(b)\{2) to
strike a balance between the religious needs of individu-
al employees and the security requirements of unions.”
McDaniel v. Essex International, 571 F.2d 338, 342 (6th
Cir. 1978). The compromise intended was “between the
abuses of compulsory unionism and the problem of ‘free-
riders’.” Id.; see also National Labor Relations Board v.
General Motors Corp., 373 U.S. 734, 740. To that end,
“(t]he closed shop was outlawed; the union shop was
permitted, with the limitation that a union could require
an employer to discharge an 1 only for failure to
y dues.” McDaniel, supra, at 342. The question of
religious accommodation simply was not addressed
when Congress was considering the enactment of
Sections 8(aX3) and &(bX2). McDaniel, supra at 343.
In addition, the Union’s claim that the NLRA
established an overriding policy favoring union security
provisions is belied by the fact that such provisions are
unenforceable in states where state law is to the
contrary. 29 U.S.C. § 164(b); Retail Clerks v. Schermer-
horn, 373 U.S. 746. Indeed, they have recently been
held subordinate to state statutes requiring a charity-
substitute accommodation like the one in issue here for
religious objectors. Lumber Workers Local 2362 v.
Wondzell, 601 P.2d 584 (Alaska Sup. Ct. 1979), appeal
8 Nos. 80-1678 & 80-1705
dismissed for want of a substantial federal question, 444
U.S. 1040. Moreover, there is “no national [labor] policy
of higher priority than the elimination of discrimination
in employment practices.” McDaniel, su at 343; see
Alexander v. Gardner-Denver Co., 415 U.S. 36, 47.
Title VII does not itself provide an exemption for
unintentional discrimination resulting from the en-
forcement of union security clauses as it does, for
example, for unintentional discrimination resulting from
the implementation of a bona fide seniority or merit
system. See 29 U.S.C. § 2000e-2(h); Trans World Air-
lines v. Hardison, 432 U.S. 63, 81-82. Given the absence
of such an express exemption and the complete lack of
evidence that Congress intended the courts to imply
such an exemption from the NLRA, we join with the
Fifth, Sixth and Ninth Circuits in holding that the
union security provisions of the NLRA “do not relieve an
employer or a union of the duty of ——— to make
reasonable accommodation to the individual religious
needs of em gp boo McDaniel, ere at 343. Accord,
Yott v. N merican Rockwell Corp., 602 F.2d 904
(9th Cir. 1979); Burns v. Southern Pacific Transporta-
tion Co,, 589 F. 2d 403 (9th Cir. 1978), certiorari denied,
439 U.S. 1072; Anderson v. General mics, 589 F.2d
397 (9th Cir, 1978), certiorari denied sub nom. Interna-
tional Association of Machinists and Aerospace Workers
of America v. Anderson, 442 U.S. 921; C v. General
mics, Convair Aerospace Div., 533 F.2d 163 (5th
Cir. 1976), certiorari denied sub nom. International
Association of Machinists and Aerospace Workers v.
Hopkins, 433 U.S. 908.
III. Undue Hardship
A. The Union
The Union argues alternatively that the district court
erred in finding that it could have accommodated
laintiff's charity-substitute proposal without undue
ardship. At the outset, we reject the Union’s claim that
the district court applied the wrong legal standard.
“Undue hardship” has been determined by the Supreme
A-9
Nos. 80-1678 & 80-1705 9
Court to exist only where the cost imposed is more than
“de minimis.” Trans World Airlines v. Hardison, 432
U.S. 63, 84. The rationale gee ag this determination
is that anything more than a minimis cost would
result in discrimination against other employees, a
result the Court concluded Congress did not intend. The
district court plainly applied the Hardison standard,
finding that the charity-substitute accommodation would
npoes ay a de minimis cost” on the Union (481
F.Supp. at 759) and “would not increase the amount or
eevee 7 of duties required of [plaintiff's] co-workers”
(481 F.Supp. at 760).
We also reject the Union’s contention that the district
court’s findings were erroneous because the failure of
any individual to pay union dues in a union shop is as a
matter of law “always above de minimis” in that other
workers must pay more than their fair share of the costs
of union representation. Because a religious objector
under a charity-substitute accommodation bears the
same financial burden as his co-workers, he is not, as
the Union s ts, a “free rider” seeking something for
nothing, and the diversion of his contribution to a
charity rather than the Union does not of itself make the
accommodation unfair or unreasonable as a matter of
law. See McDaniel, supra, 571 F.2d at 343; Burns v.
Southern Pacific Transportation, supra, 589 F. 2d at 406-
aap v. General Dynamics, supra, 589 F.2d at
As this Court has already made clear, the determina-
tion of whether an accommodation can be made without
undue hardship is an issue of fact and will not be set
aside unless clearly erroneous. Redmond v. GAF Corp.,
574 F.2d 897, 902-903 (7th Cir. 1978). Here the district
court’s findings are amply suppo by the record.
The Secretary-Treasurer of the Union testified that the
Union would not be financially injured by the loss of
peas dues, which represented only .02% of the
nion’s annual budget. The Union presented no evi.
dence that the loss of receipts from plaintiff would
necessitate an increase in the dues of his co-workers, and
even if such an increase were necessary it would amount
A-10
10 Nos. 80-1678 & 80-1705
only to 2.4 cents per year per employee. In Burns v.
Southern Pacific tra tion Co., su the Ninth
Circuit in a case virtually identical to this one held that
1 A nig of 24 cents per year was de minimis. 589
2d at ‘
There was also no evidence presented that other
workers would seek similar accommodations or that the
accommodation would lead to labor strife. The Union
President admitted that his fear of a “steamroller effect”
was purely conjectural and that no other employee had
sought such an accommodation. He also admitted that
he knew of no harm suffered by a union that had
permitted such accommodations, that he had made no
effort to contact the officials of any union that had
permitted such an accommodation, and that he was
aware that the charity-substitute has been officially
adopted by the Executive Council of the AFL-CIO (see
Joint App. at 430) as an appropriate accommodation of
individual religious needs.
The burden of making a reasonable accommodation or
proving undue hardship was on the Union. Anderson v.
General Dynamics, supra, 589 F.2d at 401. The record
shows that the Union in fact flatly refused to make any
accommodation® and at trial failed to present any
evidence of undue hardship. The district court’s findin
that the Union had violated Title VII by causing Smit
to discharge plaintiff because of his religious objection
to the payment of dues was therefore not erroneous.
The Union claims to have made an attempted accommoda-
tion by offering to permit plaintiff to withdraw from union
membership and continue — frog A at Smith if he paid to the
Union a service fee equivalent to his dues. In view of the fact
that plaintiff's religious objection is to providing financial
support to a labor organization, the proposal can hardly be
deemed an accommodation, much less reasonable. See Burns
v. 8 tion Co., supra, 589 F.2d at
406. Indeed, the Union did not suggest this “accommodation”
or even bother to answer plaintiff's December 1974 request
for an accommodation until May 1975, two weeks after
plaintiff had filed this lawsuit.
Al
Nos. 80-1678 & 80-1705 11
B. Smith
We also conclude that the district court did not err in
finding that Smith had violated Title VII. Smith has
never disputed the reasonableness of the charity-
substitute accommodation itself; its claim is that it could
not unilaterally accept this accommodation in disregard
of the union security clause in its collective bargaining
agreement with the Union. It is well settled, however,
that Title VII rights cannot be bargained ey | and that
a collective bargaining agreement therefore does not of
itself provide a defense for Title VII violations. See
Robinson v. Lorillard, 444 F. 2d 791, 799 (5th Cir. 1971);
cf. Alexander v. Gardner-Denver Co., 415 U.S. 36, 51.
Trans World Airlines v. Hardison, supra, on which
Smith relies, is not to the contrary. TWA was found not
to have violated Title VII in that case because
accommodation of the plaintiff's religious objection to
working on Saturdays would have required abrogation
of the rights of other employees under a bona fide
seniority system protected not only under the collective
pargalning agreement but under Title VII itself. The
Court held only that Congress did not intend such an
accommodation, not that compliance with a collective
bargaining agreement was a defense to an allegation of
employer discrimination. Indeed, the Court expressly
stated that “neither a collective bargaining : ment
nor a seniority system may be employed to violate Title
VII.” 432 U.S. at 79.
In addition, Smith’s ition is foreclosed by the
statute itself. Section 703(cX3) makes it unlawful for a
union “to cause an employer to discriminate against an
individual in violation of this section,” thus plainly
contemplating that both employer and union would be
culpable where the employer accedes to a union’s
unlawful demand for discriminatory action.
It is true, of course, that Smith was caught between a
rock and a hard place. The choice was not, however, as
Smith would have it, between a no-cost compliance with
A-12
12 Nos. 80-1678 & 80-1705
the Union's demands and the cost of defending itself
against the Union in grievance proceedings. The choice
was between the cost of grievance proceedings and the
cost of defending against and satisfying plaintiff's Title
Vil — The district court ee yt “peer
going vance proceedings may have cost Smi
something 4 — concluded that Smith “could have
lessened ure” and protected plaintiff in com-
pliance with T tle VII by not acceding to the Union's
demand (489 F.Supp. at 98). Smith does not claim
otherwise, but relies on the argument that Con did
not intend an employer to accommodate religion in
disregard of collective bargaining agreements. For the
reasons discussed above, we cannot accept that defense
in this case and therefore affirm the district court's
finding that Smith violated Title VII.“
IV. The Constitutionality of Section 7010
Smith and the Union claim that Section 701(j) violates
the First Amendment's command that “Congress shall
make no law respecting an establishment of religion
* * *” We are inclined to agree with the EEOC that we
are bound on this issue by the holding in Rankins v.
Commission on Professional Competence, 24 Cal.3d 167,
593 P.2d 852 (1979). In that case, the California
Supreme Court adopted the language of Section 791) to
interpret a state "constitutional proven outla
employment discrimination as forbidding “di ualifics:
tion of employees for religious practices unless un-
® Plaintiff also claimed that Smith violated Title VII
independently refus to consider him for a non-union
supervisory position. The iets qourt made ne Hinds 2
argues here in
istrict court aie have —~ gt Smith liable
n that ground that the Union's refusal to popept, the
charity-substitute was not the t precipitating ¢ cpus of plaintiff's
am. © assuming, ho Smith committed
iwe in ndependent violations of Title 2 Vin that would not relieve
of its liability for fai lure to accommodate.
Tercie re, we need not reach the question whether there was
a second violation.
A-13
Nos. 80-1678 & 80-1705 13
reasonable accommodation by the 7 ge iy! is impossible
without undue hardship,” 24 Cal.3d at 174, and then
held that the provision, so interpreted, did not violate the
Establishment Clause. The Supreme Court dismissed the
appeal, taken under 28 U.S.C. § 1257(2), for want of a
substantial federal question. 444 U.S. 986. This, of
course, is a decision on the merits. Hicks v. Miranda,
422 U.S. 332, 343-344.
The Union attempts to distinguish Rankins on the
ground that it involved a religious objection to working
on certain holy days whereas this case involves a
religious objection to union dues. We think this is a
distinction without substance. The question in both cases
is whether a legislative mandate requiring reasonable
accommodation of 1 conduct (short of undue
hardship) offends the First Amendment. Once it has
been determined as a factual matter that an accom-
modation is reasonable, the nature of the underlying
religious objection becomes irrelevant.
Assuming, however, that we are not bound by
nkins, we reach the same conclusion under the three-
part test enunciated by the Supreme Court for deter-
mining whether a statute is permissible under the
Establishment Clause. That test provides:
“First, the — poe Save * 8 mere
purpose; second, rincipal or primary effec
must be one that 4— advances nor inhibits
religion * * *; finally, the statute must not foster
‘an excessive government entanglement with reli-
E. {quoting Walz v. Tax Commission, 397 U.S.
, 674). Lemon v. Kurtzman, 403 U.S. 602, 612-
613 (citations omitted).
The purpose of Title VII's anti-discrimination provi-
sions is “to achieve equality of employment opportuni-
% Although this test was originally developed in the context
of cases involving the expenditure of public funds, ¢.g.,
v. Kurtzman, supra, the Supreme Court has recently applied
it in a case not involving such an expenditure, Stone v.
i sees U. S. , 49 L. W. 3369 curiam) and therefore
this test appears to be governing here as well.
A4
14 Nos. 80-1678 & 80-1705
ties.” Griggs v. Duke Power Co., 401 U.S. 424, 429; see
also Trans World Airlines v. Hardison, supra, 432 USS.
at 85. Section 701(j), by prohibiting unreasonable refusal
to accommodate religiously motivated conduct and
practices as well as beliefs, is plainly intended to protect
the employment opportunities not only of the victims of
overt discrimination but also of individuals who are
unintentionally discriminated against because their
religious convictions are not reflected in facially neutral
majoritarian rules. Cf. Griggs, supra, 401 U.S. at 431.
This is a secular purpose. tion 701(j) is also plainly
intended to relieve individuals of the burden of choosing
between their jobs and their religious convictions where
such relief will not unduly burden others. This is also a
secular purpose, part of “our happy tradition” of
“avoiding unnecessary clashes with the dictates of
M yi — 5 1 tae Bos
ughes „ dissenting); see
District l. Schempp, 374 5.8.7035 294-299 (Brennan, J.
concurring)."!
Application of Section 701(j) does not, as defendants
contend, have a primary effect of advancing the
interests of religionists over non-religionists or the
beliefs of one sect over those of another. Like the
statutory exemption to military service for conscientious
ubjectors, it requires no particular sectarian affiliation
n Defendants argue that Section 701(j) has a non-secular
purpose, relying solely on the allegedly impermissible motive
of Senator —— Randolph, pri sponsor of the
Section, in promoting its adoption. While it is true that
Senator Randolph expressed some concern for the future
viability of his own and other Sabbatarian sects in the
absence of an accommodation provision, 118 Cong. Rec. 705
(1972), he also expressed concern for the individuals of all
minority religions who are forced to choose between their
religion and their livelihood and proposed the provision “in
the spirit of religious freedom.” 118 Cong. Rec. at 705-706.
Even assuming, however, that Senator Randolph had an
impermissible motive in addition to a secular motive, the
statute would not be rendered invalid under the Establish-
ment Clause because it states a valid secular pugpose on its
face. See, e. g., Palmer v. Thompson, 403 U.S. 217.
A-15
Nos. 80-1678 & 80-1705 15
or theological position and promotes only “the principal
of supremacy of conscience.” Gillette v. United States,
401 U.S. 437, 453.1 It does not confer a benefit on those
accommodated, but rather relieves those individuals of a
ial burden that others do not suffer by permitting
t m to fulfill their societal obligations in a different
manner, as in this case by substituting a charitable
contribution for union dues. Such accommodations have
9 — — been * compatible with the Establishment
lause Ds Wisconsin v. Yoder, 406 U.S. 205, 234-
v. Clauson, 343 U.S. 306, 314, Sherbert v.
Verner St 774 U.S. 398, 409. The fact that some religions
may have more or different kinds of religiously dictated
observances than other religions does not invalidate a
law that applies to all faiths equally.
Nor does Section 701(j) foster “an excessive govern-
ment entanglement with religion” under the third
branch of the Lemon test, supra. The government is
required only to determine whether a belief is “reli-
gious” within the meaning of the statute (see note 12
supra) and whether it is sincerely held, a question of
credibility. This is essentially the same determination
required in implementing the conscientious objector
exemption under the selective service statutes and does
not render Section 701(j) invalid.
Finally, we note that when an individual is exempted
from military service as a 4 objector,
another individual must go in his The cost to the
second individual might very J go injury or
1 The EEOC has sions of Ti in Tile Vil ag havi the term “religi-
ous” in —— wall as nevi ng the same
in the religious
exe 1 05 Mes 5 the 7 ay, servic statutes. See
221 1 phic Ph rae * ° nt N. CD oct Ee ZOU Dee:
11 71-77 (1910, CCH ahi thee.
this construction may be al fixes the
fact that 2 n fon 7010) was enacted r the Supreme Court
defined “religious” in the 3 service context in United
States v. Seeger, 380 U.S. 163, and Welsh v. United States, 398
U.S. 333; see Hecht v. Malley, 265 U.S. 144, 153.
A-16
16 Nos. 80-1678 & 80-1705
death and is in any event clearly greater than the de
minimis cost imposed on others by Section 7010).
Inasmuch as the selective service exemption does not
offend the Establishment Clause, see Gillette, supra, 401
U.S. at 448-460, it follows necessarily that Section 7010)
on its face and as here applied does not either. See also
Cummins v. Parker Seal Company, 516 F.2d 544, 551-
554 (6th Cir. 1975), affirmed by an equally divided court,
429 U.S. 65, vacated and remanded on another ground,
433 U.S. 903." Accordingly, the district court correctly
adopted the holding in Tooley v. Martin-Marietta Corp.,
476 F.Supp. 1027, 1030 (D. Ore. 1979), that Section 701(j)
“promotes the free exercise of religion without violating
the Establishment Clause.”
V. Attorney’s Fees and Unemploymert Compensation
Benefits
The district court held that plaintiff as the prevailing
party was entitled to reasonable attorney’s fees, to be
aid “4 by Smith and the Union, pursuant to
tion 15 * the Civil Rights Act (42 U.S.C. § 2000e-
5(k)). 489 F.Supp. at 99. Subsequently the fees award
was set at $12,478 (Supplement to Union’s Appendix).
Cummins, decided prior to Trans World Airlines v.
Hardison, supra, held that the employer in that case could
have accommodated without undue hardship the plaintiff's
religious objection to working on Saturdays. The Supreme
Court remanded the case for reconsideration of that holdin
in light of Hardison. On remand, the Sixth Circuit foun
Hardison controlling and affirmed the district court's finding
t no accommodation could be achieved without undue
hardship, thereby making it, unnecessary to reach the
constitutional issue. 561 F.2d 658 (1977) (per curiam). Judge
Phillips’ scholarly discussion of the Establishment Clause and
Section 701(j) is nevertheless persuasive authority for the
position we here.
“4 The district court's September 18, 1980, memorandum and
order, denying the Union’s motion to reconsider the award of
attorney’s fees to plaintiff and setting the fees amount, was
not available at the time briefs were filed in this Court. On
December 3, 1980, we granted the Union’s motion to
— its appendix by adding that memorandum and
order.
A-17
Nos. 80-1678 & 80-1705 17
Smith and the Union argue that plaintiff is not entitled
to attorney's fees because they would be paid over to the
Seventh-day Adventist Church, which is said to have
used this litigation to advance the tenets of its faith.
Requiring defendants to pay fees in this situation, they
argue, would violate the Establishment Clause.
At the oral argument in this Court, plaintiff's counsel
stated that contrary to defendants’ assertion he intended
to charge plaintiff for his services. Plaintiff's ition
is that the district court correctly held that he is a
prevailing party entitled to reasonable attorney’s fees
under Section 706(k) and that whatever he elects to do
with the funds subsequently is his own business and
cannot violate the First Amendment. We agree, and
therefore affirm the district court on this issue as well.
See Anderson v. General Dynamics, supra, 589 F.2d at
402; Tooley v. Martin-Marietta Corp., supra, 476 F.
Supp. at 1031.
One final point. In holding defendants jointly liable,
Judge Warren reduced the total back pay due plaintiff
from defendants by the amount of employment benefits
paid him. 489 F.Supp. at 98; J. App. 65. However, the
amount of those benefits paid and to be paid should be
credited only to Smith, the party who financed them
under Wis. Stats. 108.16 and 108.18. Since the Union did
not contribute to plaintiff's unemployment compensation
account, it should not receive credit for payments to him
from that account. Otherwise the judgment below
remains unchanged.
Judgment affirmed as modified; costs to plaintiff."
In affirming, we have considered all points raised by the
— and the three amici curiae. Any points not discussed
rein have been deemed too frivolous for discussion.
A-18
18 Nos. 80-1678 & 80-1705
PELL, Circuit Judge, dissenting. The First Amend-
ment of our Constitution treats religion in two respects:
Congress shall make no law respecting an establishment
of religion but, on the other hand, Congress shall make
no law prohibiting the free exercise of religion. Each of
these prohibitions is a fundamental part of the heritage
of this nation. Many of the early settlers came to the
colonies for the purpose of engaging in a free exercise of
their religious beliefs, but the need for this freedom of
exercise often arose because of the repressive alliance
between church and state which tolerated no exercise of
other or non-approved religious beliefs. Because it
appears to me that the majority opinion crosses the
boundary of freedom of exercise into an excessive
overnmental entanglement with religion, I respectfully
issent.
In reaching the conclusion I have, I have essentially
agreed with, and would adopt, the reasoning and
analysis of Judge Schwartz in Anderson v, eral
mics Convair Aerospace Division, 489 F. Supp. 782
D. Cal. 1980), appeal docketed, No. 80-5373 (9th Cir.
ay 14, 1980).! I am not unmindful that that decision
has been appealed to the Ninth Circuit and that oral
argument was heard in that court on January 15, 1981.
Because of my firm conviction that the correct result
was reached by the district court in Anderson, I will
adhere to that position irrespective of the result that
may be reached by the Ninth Circuit in reviewing that
case. I also see no reason for adding to the analysis of
Judge Schwartz. I will therefore confine myself to a few
observations directed to the majority opinion in the
present case.
That opinion upholds a charity-substitute accommoda-
tion as making the religious objector not a “free rider”
The Amicus brief filed in this 4 by the Equal
Employment Advisory Council sets forth in some greater
detail than does the Anderson opinion, the historical back-
gone and argument supporting the position reached in
nderson, and fortifies my conclusion as to the correctness of
the result reached in Andereon.
A-19
Nos. 80-1678 & 80-1705 19
seeking something for nothing, and opines that the
diversion of his contribution to a charity rather than the
Union does not make the accommodation unfair or
unreasonable. The Union, however, by law is the legal
representative of all employees in the Smith unit and it
is required to represent all of such employees without
discrimination. Further, by a legally valid contract, the
Union is entitled to have all employees in the unit
contribute their proportionate share of the cost of that
representation. The fact should not be significant that
by paying over to a charity an amount equivalent to
dues Nottelson expends the same amount of money as
does another employee who may not be in favor of the
Union representing him but who cannot fall back upon a
claimed religious tenet. The merchant who sells mer-
chandise, or the lawyer who sells service, would scarcely
regard that he was receiving a quid pro quo to which he
was entitled if the price or the fee was instead paid over
to a charity no matter how worthwhile or deserving that
other recipient might be. No more, it seems to me,
should Nottelson be entitled to the services without
paying for them in the same manner as his fellow
— In sum, he is a “free rider,” plain and
simple.
_ Referring to the substitution of a charitable contribu-
tion for the 1 of union dues, where the payment
is required for the retention of employment status, as
fulfilling “societal obligations“ strikes me as 22
ia noetic perjinkities divorced from realism. Nor do
think that we can adopt the r analysis that the
loss of a particular payment of dues involves only a very
small amount of money. While undoubtedly the Seventh-
Day Adventist Church is not the largest denomination in
this country, it equally undoubtedly includes a sub-
stantial number of people among its adherents.
Assuming that Nottelson is relying on a basic tenet of
his religion, the result in this test case, litigated by his
Church, cannot but have a substantial impact in
industrial situations similar to that here involved. We
cannot philodoxically avoid the fact of entanglement by
simplistically ordaining that Section 701(j) does not have
a primary effect of advancing the beliefs of one sect over
those of another.
A-20
20 Nos. 80-1678 & 80-1705
I am not unmindful, as the majority opinion points
out, that the Executive Council of the AFL-CIO has
adopted the charity-substitute as an appropriate ac-
commodation of individual * * needs. I do not
regard this as persuasive on the validity of Section
7010). No one in this day and age wants lightly to
chance the charge of being considered as being guilty of
any form of discrimination. When this moral pressure,
given teeth by the specific legislative requirement of
reasonable accommodation, is considered in the context
of making the religious objector be out of pocket at least
the same amount of money by payment to a worthwhile
charitable organization, it is not surprising that the
Executive Council would make the best of a situation
even though it is contrary to an objective for which
Unions generally have long fought.
The majority opinion, in addressing the constitu-
tionality issue, relies heavily on Rankins v. Commission
on Frabestonal Competence, 24 Cal.3d 167, 593 P.2d 852
(1979), appeal dismissed, 444 U.S. 986, which, it is
asserted, is binding on this court. That opinion of the
California Supreme Court, a four-to-three decision, was
indeed the subject of a dismissal on — as not
involving a substantial federal question although three
of the Justices “would note probable jurisdiction and set
case for oral argument.” 444 U.S. at 986. Nevertheless,
this dismissal under Hicks v. Miranda, 422 U.S. 332
(1975), as the majority opinion points out, is a decision
on the merits. Rankins, however, represents no more
than an application of Sherbert v. Verner, 374 U.S. 398
(1963) which has never been expressly overruled,
irrespective of what impact upon its viability may have
resulted from Trans World Airlines, Inc. v. Hardison,
432 U.S. 63 (1977).
The dismissal in view of Sherbert is not surprisin
when the facts of Rankins are considered. The plaintiff
there simply sought to take off on his holy days and
without pay. The California Supreme Court enjoined the
dismissal of the plaintiff taking note: “There was no
shortage of fully qualified substitute teachers who could
be and were called in to replace him at no additional
A-21
Nos. 80-1678 & 80-1705 21
cost to the district.” 593 P.2d at 857. Also the California
Supreme Court noted that permitting the absence of the
plaintiff on his holy days did not constitute a “preference
of one religion over another.” 593 P.2d at 859. On the
contrary, the regular school calendar provided holidays
on the * Christian holy days, so that the effect of
permitting absences without pay to plaintiff on his holy
days “is simply to lessen the discrepancy between the
conditions imposed on [the plaintiff's] religious obser-
vances and those enjoyed . . . by adherents of majority
religions,” id
As the company points out in its brief here, in this
case, by contrast, the dues exemption creates a religious
preference; it does not “lessen” one. In any event, the
striking difference in the situations involved in Rankins
and in the case at bar do not, in my opinion, make the
dismissal of the Rankins appeal 8 on this court.
Those striking differences cannot be lightly brushed
aside, as the majority would do, by being referred to as
a distinction without a difference.
Having stated my opinion that Section 701(j) is
unconstitutional, at least as 9 in the present
situation, I recognize the possibility of a reservation
implicit in my discussion of the lack of reasonableness of
the accommodation approved by the majority opinion.
That reservation is brought to my mind by Catholic
Bishop of Chicago v. NLRB, 559 F.2d 1112 (7th Cir.
1977), in which this court held that the Board unconsti-
tutionally exercised jurisdiction over lay teachers in
parochial schools. The Supreme Court affirmed the
result, NLRB v. Catholic Bishop of Chicago, 440 U.S.
490 (1979), but, in accordance with long established
principles of reaching a decision if possible on grounds
other than constitutional, held that the Board was
exercising jurisdiction beyond the power given it by
Congress. The Court recognized that the exercise of
jurisdiction “would implicate the guarantees of the
ligion Clauses,” but declined “to construe the Act ina
manner that could in turn call upon the Court to resolve
difficult and sensitive questions arising out of the
guarantees of the First Amendment Religion Clauses.”
A-22
22 Nos. 80-1678 & 80-1705
Id. at 507.2 Here, while I recognize the possibility that
the case could be disposed of similarly, it does appear to
me that in imposing upon employers, and sometimes on
unions, the necessity of reasonably accommodating the
diverse practices of the many different religions extant
in this country, entanglement cannot be avoided and the
challenged section should be struck down.
A true Copy:
Teste:
Clerk of the United States Court of
Appeals for the Seventh Circuit
2 It is of interest, and of some possible significance, that an
amicus brief urging affirmance of this court’s opinion in
Catholic Bishop was filed in the Supreme Court on behalf of
the General Conference of Seventh-Day Adventists.
USCA 4969—Midwest Law Printing Co., Inc., Chicago—2-27-81—350
APPENDIX B
Opinions of the United States
District Court for the Eastern District
of Wisconsin
Nottelson v. A. O. Smith Corporation
7 and Smith Steel Workers
Memorandum and Order dated Dec. 7, 1979
481 F.Supp. 756 (E.D.Wis 1979)
Memorandum and Order dated April 18, 1980
489 F.Supp. 94 (E.D.Wis 1980)
Judgment entered on April 18, 1980
Memorandum and Order dated Sept. 18, 1980
a.. “i
2. dem N
UNITED STATES DISTRICT COURT dee * ww
EASTERN DISTRICT OF WISCONSIN
DARREL C. NOTTELSON,
Plaintiff,
ve. Case No. 75-C-&2
A.C. SMITH CORPORATION, a foreign
corporation, and SMITH STEEL
DIRECTLY AFFILIATED LOCAL UNION
190806, AFL-CIO,
Defendants.
This is a civil action brought by plaintiff under
Title VII of the Civil Rights Act of 1964, as amended,
42 U.G.C. § 2000e-2. Plaintiff, a Seventh Day Adventist,
alleges that defendants discriminated against him on the
basis of his religion by discharging plaintiff for his refusal
to join or contribute to defendant union. The following
constitutes the findings of fact and conclusions cf law
required by Rule 52(a) of the Federal Rules of Civil Procedure.
A court trial was held and the following facts
developed. Plaintiff was employed by defendant company in
1947, and remained so employed until his discharge on July 11,
1975. For at least thirty years prior to plaintiff's discharge,
defendant employer had been party to labor agreements with
defendant union. Each agreement contained a union security
clause which required all employees to join the union and psy
dues as a condition of employment.
Plaintiff becaue a member of the Seventh Day Adventist
Church in May 1966. The sincerity of his religious beliefs
e 10.008 one
B-2
is not questioned. A basic tenet of this religion provides
that its members not join or financially support labor unions
and similar organizations, although each member may personally
decide whether to follow the tenet. In December, 1974,
Plaintiff notified the defendants that his religious beliefs
prevented him from complying with the labor agreement's
security clause. Vlaintiff offered to contribute an amount
equal to his union dues to a non-religious charity if defendants
would attempt to accomodate his religious beliefs. As a good
faith gesture, plaintiff made contributions of this amount to
the American Cancer Society.
Defendants refused to accept plaintiff's offer as
contrary to the union's constitution and bylaws. Defendant
union, in a \etter written on May 7, 1975, offered to remove
plaintiff's name from its membership listings, but insisted
that plaintiff continue to pay an amount equal to the dues
to defendant union “for services both past and presently
being rendered.” Plaintiff rejected this offer because his
religious beliefs prevented him from financially supporting a
union. Plaintiff was discharged on July 11, 1975. After
plaintiff exhausted his administrative remedies, this Court
took jurisdiction of his cause of action.
Section 703 of Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. § 2000e-2(a) provides:
It shall be an unlawful employment
practice for an employer -
S
any individual with respect to his
compensation, terms, conditions, or
Sf such indiviausl's - «'. religion .
42 U.S.C. § 2000e-2(c) (3) also makes it an unlawful employment
practice for a union to “cause an employer to discriminate
against an individual in violation of this section." In
@2-
1) Gate e 6 Te ree bare
determining whether discrimination has occurred on the basis
of an individual's religion, 42 U.S.C. § 2000e(j) defines
religion as including:
all aspects of religious observance and
practice, as well as belief, unless an
employer demonstrates that he is unable
to reasonably accomodate to an employee's
+ + « religious observance or practice
without undue neem the conduct
of the employer's business.
The language of section 2000e(j) clearly applies to
all types of religious observances and practices. “!T]he
definition is what may be termed as an operative one: all
forms and aspects of religion however, eccentric, are protected
except those that cannot be, in practice and with honest
effort, reconciled with a business-like operation.” rv.
General Dynamics, 533 F.2d 163, 168, cert. denied, 433 U.S.
908 (5th Cir. 1976); see McDaniels v. Essex International, Inc.,
571 F. 2d 338 (6th Cir. 1978). Thus, plaintiff's sincerely
held religious beliefs fall within section 2000e(j) and
defendants are subject to the statute's proscription against
discrimination.
To establish a prima facie case of discrimination
under 42 U.S.C. § 2000e-2(a), plaintiff must establish that:
1) he had a bona fide belief that union membership and the
payment of dues are contrary to his religious faith as a
Seventh Day Adventist; 2) he informed defendants employer
and union of his views and that they were in conflict with
the union security agreement; and 3) he was discharged from
his employment due to his refusal to join defendant union
and pay the required amount of dues. Yott v. North American
Rockwell Corp., No. 78-1790 (9th Cir., Aug. 21, 1979); Burns v.
Southern Pacific Transportation Company, 589 F. 2d 403, 405
(9th Cir. 1978); Anderson v. General Dynamics Convair, 589
F. 20 397, 401 (9th Cir. 1978).
-3-
eee,
The evidence presented at trial shows that plaintiff
satisfied his burden of establishing a prima facie case against
defendants. Plaintiff, a Seventh Day Adventist, held a sincere
belief in December 1974, in accordance with the tenets of his
religion, opposing membership in and contributions to unions
and similar organizations. The evidence also indicates that
plaintiff, in December 1974, notified defendants that such
belief prevented him from complying with the labor agreement's
security clause requiring union membership and the payment of
dues. He did, however, offer to contribute a sum equal to the
amount of union dues to a non-religious charity. After many
months of attempted conciliation between plaintiff and
defendants, plaintiff was discharged by defendant employer
on July 11, 1975 due to his refusal to comply with the
security agreement.
Plaintiff was not required, in establishing a prima
facie case, to accomodate his own religious beliefs before
seeking a compromise by defendants. "While . . . plaintiff
should be free, even encouraged, to suggest to his employer
possible ways of accomodating his religious needs, we see
nothing in the statute to support the position this is part
of plaintiff's burden of proof." Redmond v. GAF Corp., 574
F. 2d 897, 901 (7th Cir. 1972). “We agree... that the
employee who has provided his employer with sufficient
information to put it on notice is not required, as part of
his prima facie case, to show that he thereafter made some
efforts either to compromise or accomodate his own religious
beliefs before he can seek an accomodation from his employer.”
Anderson v. General Dynamics Convair, 589 F.2d at 401, fn.3.
Thus plaintiff, by informing the defendants of his sincerely
held belief, did all that he was required to do to establish
a prima facie case of discrimination in his discharge.
*
rr
B-5
Once plaintiff has been shown to have established a
prima facie case of employment discrimination, the burden then
shifts to the defendants to “demonstrate that he is unable to
reasonably accomodate . . . [plaintiff's] religious observance
or practice without undue hardship on the conduct of the
employer's business." Redmond v. GAF Corp., 574 F.2d at 901;
see McDaniel v. Essex International Inc., 571 F.2d at 343.
The Supreme Court and the Court of
Appeals have made it clear that an
employer has an affirmative obligation
under Title VII to attempt to accomodate
the operations to his employee's religious
beliefs. An employee may demonstrate
that he has complied with his legal
obligation by showing any additional
accomodation would be an undue hardship.
Padon v. White, 465 F. Supp. 602, 607
(S.D. Tex. 1979); see Yott v. North
American Rockwell Corp., supra;
amics Cor.vair,
Thus, defendants must show that they made a good faith effort
to accomodate plaintiff's religious beliefs, and that any
further accomodation would create an undue hardship within
the meaning of the statute.
In determining whether defendants have satisfied their
burden, this Court recognizes that the existence of the union
security agreement, requiring union membership and the payment
of dues, does not automatically establish a lack of accomodation
by defendants. The passage of Title VII ir no way:
precludes or trenches in any direct way
upon an employer's making a union security
agreement. He and his union can make
any agreement they like and enforce it
in the general run of cases in all
except the unusual one where compliance
would run counter to a particular
employee's religious conviction, sincerely
held, that can be accomodated without
undue hardship. Cooper v. Generai Dynamics,
533 F. zd at 170.
Thus, the thirty-year old security agreement between defendant
employer and defendant union does not in itself lessen the
effect of defendants’ attempts to accomodate plaintiff's
ort tee 6 Tete ere
religious beliefs. The agreement may not, however, lead to
employment discrimination in its implementation.
Defendant union contends that section 2000e(j) is
linited to employers and imposes no legal duty upon defendant
ur on to make reasonable accomodation to plaintiff's religious
beliefs. While section 2000e(j), which establishes the need
for accomodation, specifically refers only to employers,
defendant's contention is without merit. Title VII clearly
imposes the same duty not to discriminate on a union as well
as an employer. Yott v. North American Rockwell Corp., supra.
As such, the ability of defendant union to accomodate to
plaintiff's religious beliefs, and the effect such accomodation
would have on defendant union may be considered:
In enacting [§ 2000e(4)] Congress explicitly
required a balancing between the religious
needs of the individual and the legitimate
business needs of an employer. By implication
the same balancing applies to the needs
of a union, at least where a claim of
discrimination arises from the enforcement
of the terms of a collective 12 —
agreement. McDaniel v. Essex International
Inc., 571 F.2d a .
Proceeding to an analysis of defendants’ attempts
at accomodation, 42 U.S.C. § 2000e(j) and section 2000e-2(a)
require defendant employer and defendant union to make reasonable
accomodation for the religious observances of its employees
short of incurring an undue hardship. While the statute is
unclear as to the extent of accomodation required, the legislativ«
history clearly shows that “Congress intended to require some
form of accomodation.” Trans World Airlines v. Hardison,
432 U.S. 63, 74 fn. 9 (1971). The extent to which defendants
have attempted a reasonable accomodation, and to which further
accomodation would be an undue hardship must be analyzed
according to the particular facts presented, since “the
rh ween ere tee nee
B-7
decision ultimately turns on the reasonableness of thr
conduct of the parties under the circumstances of each
case." Anderson v. General Dynamics Convair, 589 F.2d at 400.
In the present case, defendants rejected plaintiff's
offer to donate the amount of union dues to a non-religious
charity in return for a waiver of the defendant's security
clause. Defendants offered, however, to keep plaintiff's
name off of the union membership roll, but insisted that
plaintiff contribute an amount equal to defendant union's
dues to defendant union, for services past and presently
being rendered. Plaintiff rejected this offer as contrary to
the tenets of the Seventh Day Adventist Church. Where, as
here, the effort made by defendants to accomodate plaintiff's
religious belief is viewed as inadequate by plaintiff, the
question becomes whether the further accomodation that plaintiff
has requested constitutes undue hardship. Yott v. North
American Rockwell Corp., supra.
This Court finds that the accomodation suggested by
plaintiff, whereby plaintiff would contribute an amount equal
to union dues to a non-religious charity, does not constitute
undue hardship within the meaning of 42 U.S.C. § 2000e(3).
The cost of an accomodation or its impact on workers must be
greater than de minimus for undue hardship to be demonstrated.
Trans World Airlines v. Hardison, supra; Yott v. North American
Rockwell Corp., supra; Padon v. White, supra. Plaintiff's
offer of accomodation would be only a de minimus cost to
defendants. There is no evidence that many workers other
than plaintiff would seek a similar accomodation due to their
religious beliefs. Indeed, defendant union would lose only
ten dollars a month, certainly a minimal amount, by allowing
this single worker to pay that figure to a non-religious
Jo
neee
charity. In addition, plaintiff was not attempting to accept
the benefits offered by defendant union as a free rider. He
offered to fulfill this responsibility by contributing an
amount equal to the union dues to a normal charity. As such,
the cost to defendants of accepting plaintiff's offer would
have been only de minimus.
“Undue hardship means something greater than hardship
+ « « “ven proof that employees would grumble about a
particular accomodation is not enough to establish undue
hardship." Anderson v. General Dynamics Convair, 589 F.2d at
402. “An employer or union would have to show. . . actual
imposition on co-workers or disruption of the work routine
to establish undue hardship. Burnt v. Southern Pacific
Transportation Co., 589 F. 2d at 401. Neither of these considerations
are apparent in the present case. Allowing plaintiff to
contribute the specified sum to a non-religious charity would
not increase the amount or severity of duties required of his
co-workers. Furthermore, no disruption of the work routine
would occur because plaintiff would continue to perform all
of his employment duties. Since there is no evidence that
many other workers would seek similar accomodations, it is
doubtful that substantial labor strife would be engendered
from the acceptance of this one individual's offer of
accomodation. Given the reasonableness of plaintiff's offer
of accomodation and its de minimus cost, defendants have
failed to carry their burden of establishing that its
acceptance would constitute an undue hardship within the
meaning of the statute.
Por the foregoing reasons, judgment must be rendered
for plaintiff. Plaintiff is therefore instructed to draft
a form of judgment and present it to this Court within two
weeks after the issuance of this memorandum and order.
freee OO eee.
This Court also notes that plaintiff has requested
that he be awarded attorney's fees. Because the award of
attorney's fees under Title VII is within the Court's
discretion and neither party has discussed the propriety of
their issuance, this Court will require the parties to submit
briefs on this issue. Such briefs must be presented to this
Court within one nonth of the issuance of this memorandum
and order.
80 ORDFRED this * day of December, 1979, at
Milwaukee, Wisconsin.
Oe et ee ed
copy wot}
vort es
to fule
civil PH
for .
12 222722 *
7 the Crane des of
7% veel 8 2
UNITED STATES DISTRICT COURT syst
RASTERN DISTRICT or wisconsin ‘APH Ty
P3980
DARREL c. NOTTELSON,
Plaintiff,
vs. Case Mo. 75-C-22
A. O. SMITH CORPORATION, a
foreign corporation, and
SMITH STEEL WORKERS b. A. L. U.
19806, AFL-CIO,
Defendants.
2
This action came on for trial before the Court,
Honorable Robert W. Warren, United States District Judge,
presiding, and the issues having been duly tried and a decision
having been duly rendered,
IT IS ORDERED AND ADJUDGED that by April 28, 1980,
defendant A. O. Smith Corporation reinstate plaintiff to the
position which he held at the time of his discharge as an
employee of said defendant with all seniority rights and
benefits and at the rate of pay of not less than the rate
of pay to which he would now be entitled if he had not been
so terminated from his employment.
IT IS PURTHER ORDERED that defendants .O. Smith
Corporation and Smith Steelworkers Directly Affiliated Local
Union 19806, AFL-CIO recompense plaintiff for the loss
plaintiff has sustained thereon including lost wages and
all other benefits for each and every week from plaintiff's
discharge until such time as this Judgment shall have been
complied with, together with interest thereon at the rate
provided by law. This amount, however, shall be offset
by any interim earnings and employment compensation received
during the period from plaintiff Smith's discharge to the
date of reinstatement. This shall be a joint liability of
eee nae
=
—
the aforesaid defendants. In the event the parties are not
able to arrive at an agreed upon amount for said loss within
@ reasonable time, either party may petition the Court for a
determination of the amount for which the said defendants
are liable to plaintiff.
IT IS FURTHER ORDERED AND ADJUDGED that defendant
Union shall accommodate plaintiff's religious convictions
that proscribe plaintiff to neither join nor financially
support a labor union in the manner hereinafter set forth
only.
IT IS FURTHER ORDERED AND ADJUDGED that in lieu
of the payment of Union initiation fees, dues and fees
uniformly assessed for agency service fees, plaintiff shall
authorize defendant Employer to withhold from plaintiff's
payroll checks and pay a sum, equivalent to the Union
initiation fees and dues and uniformly assessed fees paid
by those employees of R. O. Smith Corporation covered by a
Collective Bargaining Agreement that may from time to time
be in effect between defendants, to a non-union, non-religious
charitable organization mutually agreed upon by the plaintiff
and defendant Smith Steelworkers b. A. L. U. 19806, APL-CIO,
and said defendant Employer shall obtain for the benefit of
said Union a receipt from said charity evidencing to the
Union this equivalent payment in lieu of union dues and fees
unless otherwise agreed to by said parties. Plaintiff shall
execute the necessary authorizations regarding his wages
to defendant Company so that said payments to said charitable
organization shall be automatically deducted from his paycheck.
IT IS PURTHER ORDERED AND ADJUDGED that plaintiff
shall pay to a charity mutually agreed upon by plaintiff and
the Union an amount equal to the union dues he would have
owed had he not been discharged, Le, covering the period
from the time he was discharged until the time he is reinstated.
EFF
B-i2
IT IS FURTHER ORDERED AND ADJUDGED that defendant
Company and defendant Union are hereby enjoined from any
discrimination against plaintiff.
IT IS FURTHER ORDERED AND ADJUDGED that plaintiffs
shall be awarded his costs in this action.
IT IS FURTHER ORDERED AND ADJUDGED that the plaintiff
is entitled to an award of attorney's fees as prayed for
him in his complaint in an amount to be determined by the
Court if the parties cannot reach an accomodation.
IT 18 FURTHER ORDERED AND ADJUDGED that defendant
Union be and hereby is enjoined from litigating this matter
in any forum other than by appeal from thie Court.
IT IS FURTHER ORDERED AND ADJUDGED that this Court
shall retain jurisdiction over this matter pending full
compliance with the provisions of this judgment.
APPROVED:
Dated at Milwaukee, Wisconsin, this 4
day of April, 1980.
ROTH M. LA PAVE
CLERK OF COURT
or B13 eres le —
pares of tare took
UNITED STATES DISTRICT CouRT WR TU te
EASTERN DISTRICT OF WISCONSIN
DARREL c. WOTTELSON,
Plaintiff,
vs. Case Wo. 75-C-2
A. O. GMITH CORPORATION, a
foreign corporation, and
SMITH STEEL WORKERS b. A. L. U.
19806, AFL-CIO,
Defendants.
On December 7, 1979, this Court entered a memorandum
and order resolving this action in plaintiff's favor. The
memorandum and order constituted the Court's findings of
fact and conclusions of law following a court trial on the
merits of this case. Both defendants were found liable, but
judgment has not been entered.
Defendants have filed briefs and motions raising
several issues which they feel were left unanswered. Both
defendants have also moved for reconsideration. Plaintiff
has moved for an award of attorney's fees. Finally, several
points must be clarified.
There are five issues which will be resolved in
this opinion. In his complaint plaintiff sought relief
under 42 U. 8. c. § 2000e-2 (and the religious accomodation
definition in 42 0.8.C. § 2000(e)(4)) and directly under the
United States Constitution. The Court found liability under
the statute without considering plaintiff's constitutional
Claim. Defendants argue that the Court should rule on the
latter ground for relief. The next issue raised by the
eee e 188 bere
B14
defendants is their claim that 42 b. 8. c. § 20000(4) is
unconstitutional because it is in violation of the establish-
ment clause of the first amendment. The third problem
raised by defendants involves an allocation of damages. The
fourth issue involves plaintiff's request for attorney's
fees. Defendants argue that since plaintiff was denied a
request for a preliminary injunction, if attorney's fees are
awarded to plaintiff he should not be granted fees for the
hours spent pursuing the interim equitable relief. Finally,
defendants have moved for reconsideration on the merits.
Looking first towards the merits the Court remains
convinced that it ruled correctly in its December 7, 1979
memorandum and order. In Tooley v. Martin-Marietta Corp.,
476 v. Supp. 1027 (b. Ore. 1979), the court was faced with
resolving a fact situation almost identical to the one
presented in this Court; i.e., a plaintiff who refused to
join a union or financially support it, but would contribute
an amount equal to the union dues to a non-religious charity.
The court held that plaintiff was entitled to relief because
the defendants, union and company, had not proved that the
payments of the $228.00 annual union dues to a charity would
result in an undue hardship. This Court found the accomodation
would impose only a de minimus hardship and as such does not
cause defendants an “undue hardship" as defined in 42 b. 8. c.
$ 2000(e)(j). Gee, o.g., Yotg v. North American Rockwell
Corp., 602 F.2d 904 (9th Cir, 1979). At this time this
Court would again state that on this basis defendants have
not shown that the accomodation would cause an undue hardship.
Consequently, defendants’ motion for reconsideration on the
merits is denied.
hee,
Defendants’ motion for reconsideration also raises
a question of statutory pre-emption. They argue that labor
questions are governed by the National Labor Relations Act
(NLRA) which they assert preempts Title VII of the Civil
Rights Act. Under 29 U.8.C. § 158(a)(3), (b)(2) of the NLRA
unions are authorized to negotiate and enforce contract
provisions calling for shops which are closed to all but
union members. In Tooley v. Martin-Marietta Corp., 476
. Supp. at 1027, the Court held that Title VII is an exception
to the NLRA. The preeminence of Title VII over the NLRA was
explained definitively by the court in McDaniels v. Essex
International, Inc., 571 v. 20 338, 343 (9th Cir. 1979) where
it held:
This court is aware of the national
8 of pe labor peace which
y the union security sions
of — 4 1 Since July 2 one
however, there has been no national
policy of higher priority than the
elimination of discrimination in
ny actices. Soe
75, r. L. He 24 ia? (1974).
Section 701 ) of the 1964 Act requires
more than reliance on Taft-Hartley.
The union security provisions of Taft-
Hartley do not relieve an employer or
a union of the duty of attempting to
make reasonable accomodation to the
individual religious needs of employees.
due also, Anderson v. General Dynamics, Convair Aerospace
Division, 589 7.24 397 (9th Cir. 1979); Cooper v. General
Dynamics, Convair Aerospace Division, 533 v. 24 163 (Sth Cir.
1976), cort. denied, sub nom., International Associetion of
Machinists and Aerospace Workers v. Hopkins, 433 0.8. 908
(1977). ‘This tribunal will follow the cases cited and must
conclude that Title VII takes precedence over the WLRA in
the present case.
-3-
ee tee bere
In so ruling the Court takes tote of defendants’
reliance upon recent congressional efforts to amend the
closed shop provisions of the NLRA to require religious
accomodation to show that Title VII was not intended to
preempt the NLRA. Such action by Congress shows nothing.
While the passage of an amendment to the NLRA may indicate
that Title VII does not cover labor union closed shop agreements,
it is equally plausible to assume that the actions of Congress
are being undertaken to reconfirm its commitment to civil
rights. The proposition that the proposed amendment to the
MEA is meant to clarify the preeminence of Title VII is
confirmed by reading excerpts of the relevant floor debates.
126 Cong. Rec. H 763 (1980). Consequently, thie Court must
conclude that Title VII applies in the present case.
Turning now to defendants’ request for a ruling on
the constitutional claim raised in plaintiff's complaint,
the Court would note that complete relief is available to
plaintiff under Title VII of the Civil Rights Act. Conse-
quently, a finding of liability or non-liability under the
constitutional claim will aid neither party at this stage of
the litigation. Defendants argue that, in the event this
Court is reversed on its findings under Title VII, judicial
economy would favor having the constitutional claim resolved.
Nothing will be gained by resolving this issue now since, if
the appeal results in an affirmance, thie Court need never
reach plaintiff's constitutional claim. If anything, economy
favors silence at this time. As a result, no resolution
will be made of plaintiff's alternative around for relief.
Although plaintiff's constitutional claim need not
be reached, defendant's constitutional attack on 42 U. 8. c.
$ 2000e(4) must be considered. Several courts have ruled
—4—
„eee.
that section 2000(¢)(j) is unconstitutional. Under 42 U.8.C.
$$ 2000(@)-2(a) and (b)(c), it is unlawful for « union or an
employer to discriminate against an employee on the basis of
religion. Section 2000e(4) provides:
The term “religion” includes all
aspects of ye observance and
practice, ae well as belief, unless an
employer demonstrates that he is unable
to — —— A
or prospective emp e's religious
observance or practice without undue
hardship on the conduct of the employer's
business.
Defendants argue that section 2000e(4) conflicts with that
portion of the First Amendment to the United States Consti-
tution which provides: "Congress shall make no law respecting
an establishment of religion. . .*
In several cases the constitutionality of section
20000(}) has been questioned. Cummins v. Parker Seal Co.,
516 F.2d 544 (6th Cir, 1975), Colebrezze, J. Dissenting:
Gavin v. People's Natural Gas Co., 464 r. Supp. 622 (v. b.
Pa. 1979); Yoth v. Morth American Rockwell Corp., 428 7. Supp.
763 (C.D, Cal, 1977), aff'd without the court reaching the
constitutional issue, 602 F. 24 904 (9th Cir. 1979). Several
courts have found the statute constitutional. Cummins v.
Parker Seal Co., 516 F.2d 544 (9th Cir, 1975) aff'd 429 0.5.
65 (1976), judgment vacated on other grounds, 433 0.8. 903
(1977)) Tooley v. Martin-Marietta Corp., 476 F. Supp. 1027
(D. Ore. 1979); Brown v. General Motors Corp., 20 v. b. .
Cases 68 (N. o. Mo. 1978), rev'd on other grounds, 601 F.24
956 (8th Cir. 1979).
This Court is drawn to the conclusion that under
the facts in the present case section 200003) does not
offend the first amendment, The test to be used in deter-
-S-
(oe eee ee te tee here
mining whether a statute offends the establishment clause
was outlined by the Supreme Court in Committee for Public
Education v Nyquist, 413 0.8. 756, 773 (L973)e
(lo pass muster under the Eetablish-
ment Clause the law in question, first,
must reflect «4
lative purposes „ must have
a primary effect t neit
excessive government entangle-
ment with reiagion.
This Court will follow the lead of the court in Tooley v-
Martin-Marietta Corp., supra. Judge Solomon in his opinion
held that section 2000e(j) is constitutional stating:
t
religious beliefs and practices. A
reasonable accomodation will not favor
plaintiffs or their religion because
plaintiffs agree to contribute to charity
an amount equal to union dues. A
reasonable accomodation will not result
in government entanglement with religion
reater than that approved [by the
upreme Court in several cases). «+ +
the religious ace’ dat ton provision
promotes the free .xercise of religion
without violating the Establishment
Clause. }/
The facts in the present case are almost identical to those
in Tooley and as applied to those facts section 200003) is
constitutional.
The next issue to be determined is the appropriate
allocation of damages. Defendant Union claims that it
should not be liabie for backpay since defendant R. O. Smith
was plaintiff's employer and Smith fired plaintiff, the
Union did not. The Union further points out that the only
steps it threatened to take if Smith did not fire plaintiff
freee se ere ree nee
was to process 4 grievance to arbitration and to file an
unfair labor practice with the National Labor Relations
Board, Smith argues that it vhould not be liable for backpay
since it was ready and willing to accomodate plaintiff's
religious beliefs, Because the Union was adamant it fired
plaintiff even though it could have avoided the issue by
promoting plaintiff to a position not covered by the Union
contract.
In this Court's opinion, each defendant is culpable.
The Union for being so adamant; the employer for refusing to
keep plaintiff on as an employee. While undergoing grievance
proceedings may have cost Smith something, it cov could have have
_lesgened—soe-enposure-end-the harm to plaintiff by not
firing plaintiff. The prospectsware_not that dis. The
Union, on the other hand, should have accomodated. They
chose not to and must suffer the costs, The defendants are
jointly liable for the damages plaintiff has suffered, and,
barring agreement subsequent hereto, can anticipate the
Court ordering each defendant to pay one-half of the residua)
backpay.
In determining those damages, three issues must be
resolved. First, whether the backpay to be awarded to
plaintiff should be reduced by unemployment compensation
benefits received by plaintiff in the interim and earnings
from other employment. Second, should plaintiff pay an
amount equilavent to the union dues for the period in question
to an acceptable non-religious charity. Finally, should
plaintiff receive attorneys’ fees and to what extent.
By the wording of the appropriate section of Title
VII itself, 42 U.6.C. § 2000e-5ig), “Interim earnings or
amounts earnable with reasonable diligence by the person... .
272
r eee
B-20
discriminated against shall operate to reduce the backpay
otherwise allowable." Likewise, unemploymem benefits
should also be deducted from the backpay awara. See Associacion
Against Discrimination in Employment, Inc. v. ¥eeks, 454
. Supp. 758 (0. Conn. 1978). The record ind‘.cates that
Smith has not reinstated plaintiff. Consecuently his damages
are not determinable at this time. Defen/ant Smith should
reinstate plaintiff no later than April 28, 1980. Thereafter,
the parties should meet to settle the amount of backpay to
which plaintiff is entitled. If tile zue cannot be resolved
amicably, the Court will, of course, hold a hearing to
resolve the amount of backpay owing.
It is the Court's considered opinion that plaintiff
should contribute to a non-religious charity an amount equal
to the union dues he would have owed had he continued to
work at Smith during the relevant period. The non-religious
charity must be one agreed upon by plaintiff and defendant
Union. In attempting to settle damages, the parties should
keep this holding in mind.
Turning to the attorneys’ fee question, 42 Uv. 8. c.
$ 2000e-5(k) provides:
In any action or proceeding under this
title [42 USCS 88 2000e et seq.) the
court, in its discretion, may allow the
revailing party, other thar the
— 2 — or the United States, a
reasonable attorney's fee as part of
the costs, and the Commission and the
United States shall be liable for costs
the same as a private person.
While the statute provides that an award of fees is discretion-
ary, in all but the most unusual circumstances the prevailing
party should be awarded attorneys’ fees. See Newman v.
Piggie Park Enterprises, 390 U.S. 400 (1968); Clanton v.
Err
Allied Chemical Corp., 416 v. Supp. 39 (F. b. Va. 1976).
There are no al circumst present in this case and
plaintiff will be awarded reasonable attorneys’ fees.
Defendants suggest that the amount awarded should
exclude fees for hours expended in plaintiff's pursuit of a
request for a preliminary injunction which was not granted.
In Batiste v. Purnco Construction Corp., 503 F.2d 447, 451
(7th Cir. 1974), cert. denied, 420 0.8. 928 (1975), the
court held “the amcunt of the award [of attorneys’ fees)
should be proportionate to the extent that the party has
prevailed in the suit." Since plaintiff prevailed in this
lawsuit on his claim for discrimination, the merits of cause
of action are established. Nevertheless the circumstances
of the preliminary injunction proceedings indicates that
Plaintiff should be denied attorneys’ fees incurred in
pursuing that relief. The motion was denied and the action
dismissed because plaintiff had not exhausted his admini-
strative remedies before seeking relief here. This Court
found that such exhaustion is a jurisdictional prerequisite
to a suit under 42 U.S.C. § 2000 et. seq. See 42 U.S.C.
$ 2000e-5 (f() Nottelson v. A.O. Smith Corp., 397 r. Supp.
928 (E. D. Wis. 1975). Defendants should not have to bear
the burden of plaintiff's attorneys’ fees expended in seeking
relief to which he is not entitled. Consequently, an award
of attorneys’ fees will be appropriately reduced.
Although plaintiff is entitled to attorneys’ fees,
the Court is not in a position to award a specific amount.
As with backpay both defendants are equally liable for the
fees. In order to alleviate further unnecessary hearings,
the parties should attempt to resolve this issue by agreement.
If they cannot, of course, the Court will have to resolve
Err
5-22
this issue. Absent an agreement, plaintiff should file
a motion supported by affidavit requesting an award of a
specific amount of attorneys’ fees by May 15, 1980. Defendants
have until May 30, 1980 to file a response. If necessary, a
hearing will be held.
In resolving the pending issues, the Court notes
that the defendant Union intends to litigate a grievance
before the WLRB if Smith is reinstated. The Union claims
that if plaintiff returns to his position with Smith, Smith
will be in violation of its collective bargaining agreement
with the Union. To permit the Union to file a grievance
with the NLRB, in light of this Court's ruling, would result
in a fundamental unfairness. Therefore, at the parties’
request the Union is hereby precluded and enjoined from
litigating this matter in any forum other than by appeal.
One final issue that must be resolved involves the
question Mas plaintiff's refusal to give the equivalent of
dues to the Union based upon a secular aversion to strikes
rather than on a religious belief?" (Issue 9 of the issues
submitted upon stipulation). The answer to this is an
unequivocal “no.” Wothing more need be said on this point.
Pinally, the Court would note that it is entering
judgment concurrent with the entry of this order. Any
additional relief can be granted pursuant to the judgment.
Therefore, it is hereby ordered that defendants’
motion for reconsideration on the merits must be and hereby
is denied.
It is further ordered that defendants’ attack on
the constitutionality of 42 U.S.C. § 2000-e(j) as applied in
this case be and hereby is denied.
-10-
It is further ordered that defendants are jointly
liable to plaintiff for backpay and attorneys’ fees as more
fully set forth in this opinion.
SO ORDERED this IA. dey of April, 1980,
at Milwaukee, Wisconsin.
een 08 Fare
B-24
eS Ae ee eee
fir
OF —
Rulnw Wiad Gon
een: to att omieys for
part
to file
Civ
os by tho Court jure at
yet.) © 4.0. pal@N ERED STATES DISTRICT COURT
rrocedures. EASTERN DISTRICT OF WISCONSIN sep 18 1980
DARREL c. NOTTELSON,
Plaintiff,
vs. Case No. 75-C-2
A. O. SMITH CORPORATION,
a foreign corporation, and
SMITH STEEL WORKERS b. A. L. U. 2
19806, AFL-CIO, ;
Defendants.
MEMORANDUM AND ORDER
Three motions are currently before the Court in
this matter. In the first motion, plaintiff, Darrel c.
Nottelson, requests an award of attorney's fees. In the
second motion, defendant Smith Steel Workers b. A. L. U. 19806,
AFL-CIO ("Union"), asks the Court to stay those portions of
its judgment of April 18, 1980 that would require the Union
to pay any moneys to plaintiff prior to the resolution of
this case on appeal and that enjoin the Union from litigating
this matter in any forum other than by appeal from this
Court. In the third motion, defendant x. O. Smith also asks
the Court to stay that portion of the judgment that would
require it to pay any moneys to plaintiff until this matter
is resolved on appeal. In its motion, Smith also requests
the Court, in the event it grants the Union's motion to
proceed before the N. L. . B., to require the Union to post
such security as this Court deems proper for the protection
of Smith. These motions will be the subject of this memorandum
and order.
In its memorandum and order of April 18, 1980, the
Court held that plaintiff is entitled to attorney's fees and
rr
that both defendants are equally liable for the fees. The
Court further ordered the parties to attempt to determine
the specific amount by agreement. The parties have failed
to reach such an agreement and plaintiff has presented its
accounting to the Court.
Both defendants now argue that the Court should
reverse ite earlier holding and not award any attorney's
fees to plaintiff, They assert that this suit was used to
advance the tenets of the Seventh-day Adventist Church as
those tenets relate to the financial support of labor organi-
zations. Defendants argue, in essence, that a court order
requiring them to pay the legal fees of the Church, in its
attempts to promote particular religious objectives, would
violate the Establishment Clause of the Constitution.
The Court cannot accept defendants’ argument. The
decision of this Court was based on the finding that the
Plaintiff was discharged because of his religious beliefs,
As the prevailing party, he was awarded attorney's fees.
What he intends to do with that money is his business.
Purthermore, the Court, sees no conflict arising under the
Establishment Clause in awarding attorney's fees to a plaintiff
who has been fired because he refuses to act in contradiction
to his religious beliefs.
Defendants also contend that plaintiff's request
for attorney's fees is excessive. Plaintiff's request for
reasonable attorney's fees amounts to $19,734.30. This
figure was based on a rate of $55.00 per hour charged in
1975; $60.00 per hour charged in 1976; $70.00 per hour
charged in 1977; $75.00 per hour charged in 1978; and $85.00
per hour charged in 1979 and 1980. A total of 302.6 hours
were spent in order to represent plaintiff's interests.
of
een Fe em Bere
The Court has evaluated the request for fees in
light of the criteria for determining appropriate attorney's
fees set forth in Waters v. Wisconsin Steel Works of International
Harvester gez, 502 F. 24 1309 (7th Cir. 1974), cert. denied,
425 U.S. 997 (1976). Based on its evaluation, the Court
concludes that the amount of hours spent on this litigation
was not excessive in light of the fact that this case was
the first of its kind in the Eastern District of Wisconsin
and the Seventh Circuit Court of Appeals and involved substantial
pretrial discovery.
The Court does not believe, however, that the
complexity of the case rises to such heights that it warrants
a departure from the hourly figure for attorney's fees
normally awarded by the Court. Accordingly, the Court will
award plaintiff $50.00 per hour for the 37.4 hours it spent
in connection with this case in 1978, 1979, and 1980 and
$40.00 per hour for the 265.2 hours it spent in connection
with this case in 1975, 1976 and 1977. The total award to
be paid by defendants is_$12,478.00.
9 Turning next to the Union's request that it be
allowed to file charges against Smith with the M. L. R. B., the
Court sees no valid reason for modifying its ruling of April
18 on this matter. The Court's concern that it would be
unfair to allow the Union to file a grievance with the
N. L. R. B., continues today. Accordingly, the Union's request
to file charges with the M. L. k. Bust be and is ne oh
denicd.
With respect to defendants’ motion for a stay of
any payments to plaintiff pending appeal, the Court notes
that such stays are given as a matter of right under Rule
62(d) of the Pederal Rules of Civil Procedure if the appealing
28
ee eee.
27
party posts a bond in accordance with that rule. The amount
of the bond to be posted is set by the trial court and
usually is set in an amount that will permit satisfaction of
the judgment in full, together with costes, interest, and
damages for delay.
In the case at hand, the parties have not yet
reached an agreement as to what the amount of back pay
should be. Therefore, the Court does not have before it
a dollar figure which will cover the amount of the judgment.
Notwithstanding the lack of a judgment for a sum
certain, the Court believes a stay would be appropriate if a
supersedeas bond in the amount of $40,000.00 were posted.
Accordingly, upon the filing of a supersedeas bond in the
amount of $40,000.00 and upon the approval of that bond by
the Clerk of Court for the Eastern District of Wisconsin,
those portions of this Court's judgment of April 18, 1980
requiring defendants to pay any moneys to plaintiff will be
stayed.
Finally, the Union's request that the Court determine
the validity of plaintiff's claim under Count II of the
complaint must be denied since this Court now lacks juris-
diction to change its decision. Once a timely notice of
appeal is filed, jurisdiction over all matters pertaining to
the appeal passes to the court of appeals, and the district
court is without authority to act further with regard to
those matters, Elgin Manufacturing Corporation v. Vent
Fabrics, Ing: , 314 F.2d 440 (7th Cir, 1963).
In summary, plaintiff's motion for attorney's fees
is granted for the amount indicated in this order. Defendants’
motion to stay that portion of the judgment requiring them
to pay amounts of money to the plaintiff will be stayed once
eee © FO the bere
their supersedeas bond has been posted and approved by the
Clerk of Court, Eastern District of Wisconsin. Defendant
Union's motion to stay to allow it to proceed before the
N. L. N. h. ie denied, Defendant Union's request that the
Court determine thu validity of plaintiff's claim under
Count II of the complaint is denied.
8O ORDERED this 18 aay of September, 1980, at
Milwaukee, Wisconsin,
eee tee Ree
APPENDIX C
Excerpt from the Legislative History of
Section 701(j) of Title VII of the Civil
Rights Act of 1964. Legislative History
of the Equal Employment Opportunity Act of
1972, Volume 2, 711-715 (1972); also
reported at . Record, Volume
118, Part 1, 705-706 (92d Congress, 2d
Sess., Jan. 21, 1972).
{Excerpt from the Legislative History of Section 701(j)
of Title VII of the Civil Rights Act of 1964. Legislative
History of The Equal Employment Opportunity Act of
1972, Volume 2, 711-715 (1972); also reported at Con-
gressional Record, Volume 118, Part 1, 705-706 (92d
Congress, 2d Sess, Jan. 21, 1972) .“]
The Senate continued with the consideration of the bill
(S. 2515) a bill to further promote equal employment
opportunities for American workers.
Mr. RANDOLPH. Mr. President, I send an amendment
to the desk and ask that it be stated.
The ACTING PRESIDENT pro tempore. The Chair is
advised that there is an amendment pending. Is the
amendment of the Senator from West Virginia an amend-
ment to that amendment or is the Senator asking that
the pending amendment be set aside?
Mr. DOMINICK. Mr. President, I ask unanimous con-
sent that the pending amendment, the Dominick amend-
ment, be set aside temporarily so that the Senator from
West Virginia (Mr. Randolph) may present his amend-
ment, and that the Dominick amendment be taken up
immediately after completion of the amendment of the
Senator from West Virginia.
The ACTING PRESIDENT pro tempore. Without objec-
tion, it is so ordered.
This Appendix includes the legislative debate with respect to the
enactment of Section 701(j). Senator Randolph also inserted into
the record the court decisions in Dewey v. Reynolds Metals Co. and
Riley v. The Bendix Corp., both supra, as well as EEOC guidelines
and regulations. See Legislative History, Vol. 2, supra, 715-776; Con-
gressional Record, Vol. 118, Pt. 1, supra, 706-731. These latter
documents are not included herein because of their length.
The amendment of the Senator from West Virginia
will be stated.
The legislative clerk read as follows:
On page 33, after line 13, insert the following:
“(6) After subsection (i) insert the following
new subsection (j):
“(j) The term ‘religion’ includes all aspects of
religious observance and practice, as well as belief,
unless an employer demonstrates that he is unable
to reasonably accommodate to an employee’s or pros-
pective employee’s religious observance or practice
without undue hardship on the conduct of the em-
ployer’s business.”
Mr. RANDOLPH. Mr. President, it is my hope that we
can have a roll-call vote on this amendment, not that
there is opposition to the amendment itself, but it is felt
that a rolleall would serve a constructive purpose.
I am grateful to my able colleague from Colorado for
permitting me to use just a few minutes in presenting
the reasons why I have proposed this amendment to the
pending legislation.
Mr. President, I ask unanimous consent to include as
cosponsors of the amendment the Senator from New York
(Mr. Javits), the Senator from Maryland (Mr. Beall),
and the Senator from California (Mr. Cranston).
The ACTING PRESIDENT pro tempore. Without objec-
tion, it is so ordered.
Mr. RANDOLPH. Mr. President, freedom from religious
discrimination has been considered by most Americans
from the days of the Founding Fathers as one of the
fundamental rights of the people of the United States.
Yet our courts have on occasion determined that this
freedom is nebulous, at least in some way. So in present-
ing this proposal to S. 2515, it is my desire and I hope
the desire of my colleagues, to assure that freedom from
religious discrimination in the employment of workers is
for all time guaranteed by law.
I am sure that my colleagues are well aware that there
are several religious bodies—we would call them religious
sects; denominational in nature—not large in member-
ship, but with certain strong convictions, that believe
there should be a steadfast observance of the Sabbath
and require that the observance of the day of worship,
the day of the Sabbath, be other than on Sunday. On
this day of worship work is prohibited whether the day
would fall on Friday, or Saturday, or Sunday. There are
approximately 750,000 men and women who are Orthodox
Jews in the U.S. work force who fall in this category of
persons I am discussing. There are an additional 425,000
men and women in the work force who are Seventh-day
Adventists.
Mr. President, I am a member of a denomination which
is a relatively small one, the Seventh Day Baptists. Per-
haps there are only 5,000 individuals within that denomi-
nation in the work force. I do think it is important for
me to say that within the groups that I have mentioned,
we think in terms of our observance of the Sabbath be-
ginning at sundown Friday evening and ending at sun-
down Saturday evening, following the Biblical words,
“From eve unto eve shall you celebrate your Sabbath.”
I make this statement only by way of explanation of the
groups I have just mentioned.
I think it is important for use to realize that the per-
sons for whom I hope I speak—and I hope I speak for
all persons in this matter—are workers scattered through-
out the United States of America. There is no section of
the country which would not be affected, we hope con-
structively, by the adoption of this amendment.
I say to the distinguished chairman of the Labor and
Public Welfare Committee, who manages this bill, that
there has been a partial refusal at times on the part of
employers to hire or continue in employment employees
whose religious practices rigidly require them to abstain
from work in the nature of hire on particular days. So
there has been, because of understandable pressures, such
as commitments of a family nature and otherwise, a
dwindling of the membership of some of the religious
organizations because of the situation to which I have
just directed attention.
I hold my membership in our church here in this area.
We have the Washington Seventh Day Paptist Church.
We have several of those churches in my State of West
Virginia. At an earlier period I held my membership in
the Salem, W. Va., Seventh Day Baptist Church.
I invite the attention of my able colleague to the fact
that in the State of New Jersey there are many, many
Seventh Day Baptist churches. In places like Shiloh,
Marlboro, and Plainfield—actually being the headquar-
ters of the denomination to which I belong, located close
to New York City, but actually located in the State of
New Jersey.
My own pastor in this area, Rev. Delmer Van Horne,
has expressed his concern and distress that there are
certain faiths that are having a very difficult time, es-
pecially with the younger people, and understandably so,
with reference to a possible inability of employers on
some occasions to adjust work schedules to fit the require-
ments of the faith of some of their workers.
The term “religion” as used in the Civil Rights Act of
1964 encompasses, as I understand it, the same concepts
as are included in the first amendment—not merely be-
lief, but also conduct; the freedom to believe, and also
the freedom to act.
I think in the Civil Rights Act we thus intended to
protect the same rights in private employment as the
Constitution protects in Federal, State, or locai govern-
ments. Unfortunately, the courts have, in a sense, come
down on both sides of this issue. The Supreme Court of
the United States, in a case involving the observance of
the Sabbath and job discrimination, divided evenly on the
question.
The amendment is intended, in good purpose, to resolve
by legislation—and in a way I think was originally in-
tended by the Civil Rights Act—that which the courts
apparently have not resolved. I think it is needed not
only because court decisions have clouded the matter with
some uncertainty; I think this is an appropriate time for
the Senate, and hopefully the Congress of the United
States, to go back, as it were, to what the Founding
Fathers intended. The complexity of our industrial life,
the transition of our whole are of employment, of course
are matters that were not always understood by those
who led our Nation in earlier days.
Mr. President, the competent chairman of the Labor
and Public Welfare Committee, who is the chief sponsor
of S. 2515, and who is floor managing the very bill before
us, I believe understands and appreciates, and I hope
agrees with, the arguments that I am presenting. I have
had some opportunity to counsel with him in reference
to the amendment. I hope he can agree that there can
be at least an agreement on the amendment, even though
we have a roll call upon it, hopefully in the next few
minutes. I think it is a well-intentioned amendment, a
necessary amendment, a worthwhile amendment because
it carries through the spirit of religious freedom under
the Constitution of the United States.
Mr. President, I, therefore, urge most earnestly the
adoption of the amendment.
Mr. DoMINICK. Mr. President, will the Senator yield?
Mr. RANDOLPH. I yield to my colleague from Colo-
rado.
Mr. DoMINICK. I have listened very carefully to the
Senator’s presentation, and was impressed by it. Could
the Senator tell me, whet
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