# Petition — A. O. Smith Corp. v. Nottelson > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2540%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 454 U.S. 1046 ## Text — — i dice Supreme Court. US. | FILED ao { 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, [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2540%3A1. Public record. Not legal advice.