Opposition — A. O. Smith Corp. v. Nottelson

Office-Supreme Court, US

x i, we 4)

Nos. 81-97 and 81-323 OCT 16 1981

——— +--+ —STEVAS

CLERK in

In the Supreme Court of the Hutter Brae ——

OCTOBER TERM, 1981

A.O. SMITH CORPORATION, PETITIONER

v.

DARREL C, NOTTELSON AND

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

SMITH STEEL WorKERS D.A.L.U. 19806, AFL-CIO,

PETITIONER

v.

DARREL C, NOTTELSON AND

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

IN OPPOSITION

Rex E, LEE

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

CONSTANCE L. DUPRE

Acting General Counsel

Equal Employment Opportunity Commission

Washington, D.C. 20506

QUESTIONS PRESENTED *

(1) Whether Section 701(j) of Title VII of the

Civil Rights Act of 1964, 42 U.S.C. 2000e(j), which

mandates reasonable accommodation of religious

practices, requires unions and employers to exempt

religious objectors from union dues requirements un-

less undue hardship can be shown.

(2) Whether Section 701(j) of Title VII violates

the Establishment Clause of the First Amendment.

(3) Whether the court of appeals correctly af-

firmed the district court’s finding that A.O. Smith

Corporation could reasonably have accommodated

Nottelson’s religious objection to union dues payments

without undue hardship.

* Petitioner in No.'81-97 also seeks review of the holding

of the court of appeals with respect to an award of attorney’s

fees, upon which question the Commission expresses no view.

(1)

TABLE OF CONTENTS

Page

SS TOUUD ; sien cetsnninssanctcbinecpsncinsiensectenessetinsncsnnaintpiiiacnninns 1

I ti oo Ao | ccasemaisebaiieemealbbilies 2

Statutes and constitutional provisions involved ............ 2

I eat Sc loi ceunaheiiciniaitiamunibchinacneh 3

STII scichs factsiiniestlsignpalidectvesntnchouestenenaninsesientnicienndbion 9

ei a ssispeneeabientnnnnneunnaeeiniionedh 22

TABLE OF AUTHORITIES

Cases:

Alexander Vv. Gardner-Denver Co., 415 U.S. 36...... 18, 21

Anderson V. General Dynamics, Convair Aerospace

Division, 589 F.2d 897; cert. denied, 442 U.S.

I saa tae i sacell cilseehintiontedbonnes 9, 18

Anderson V. General Dynamics, Convair Aerospace

Divieton, 648 FBG 1B47 .........ccccscccscscccesccssessssessens 14

Berenyt V. INS, 885 U.S, 680 .000........ccccccccccceeseeees 21

Bowe V. Colgate-Palmolive Co., 416 F.2d 711.......... 21

Buckley Vv. American Federation of Television and

Radio Artists, 496 F.2d 305, cert. denied, 419

SS IID Waiiih crhsiancstcdinkedt ec cacdhantdadinehineranaiesbaesesitahsens 19

Burns v. Southern Pacific Transportation Co.,

589 F.2d 408, cert. denied, 439 U.S. 1072 .......... 9

Committee for Public Education v. Nyquist, 418

Mt: WEEE sisceonseillbtibile ith enh cindssncssdnstonientbasoldeestatn 7,8, 15, 18

Cooper V. General Dynamics, Convair Aerospace

Division, 583 F.2d 163, cert. denied, 433 U.S.

LA ETE CSE” 228 SEEN eC OL BOE I 9, 10

Cummins Vv. Parker Seal Co., “516 F.2d 544, aff'd,

429 U.S. 65, vacated and remanded on other

ATL, aosincescsssccsccotemneninsifeeteransoonnt 14

Emporium Capwell Co. v. Community Organiza-

I II TR ota. st cnscondpimennntntevesmnanitnsiodins 13

Epperson V. Arkansas, 398 U.S. 97 o..........ccccccccceeeee 16

(mir)

Cases—Continued Page

Gillette v. United States, 401 U.S. 487 ....0.000.... 17

Graver Mfg. Co. Vv. Linde Co., 386 U.S, 2711. ............ 21

Griggs V. Duke Power Co., 401 U.S, 424 .............. 8, 15-16

Lemon V. Kurtzman, 408 U.S. 602 .0....0.....0060000 20

Linscott v. Miller Falls Co., 440 F.2d 14, cert. de-

a GI WIN CTE cinioncinsisnidh igiiacligh occinhntasinecbaaiesenianes 19-20

McDaniel Vv. Essex International, Inc., 571 F.2d

ES TR A i SRO PAO 9, 10,13

NLRB v. Catholic Bishop of Chicago, 440 U.S

melas abaticel ANBat es LR RRR Cea RR Soe dh 20

New York v. Cathedral Academy, 434 U.S. 125...... 20

Norman V. Missouri Pacific R.R., 414 F.2d 78 ...... 21

Railway Employees’ Department v. Hanson, 351

Ra RE id et CeO 19, 20

Rankins v. Commission on Professional Compe-

tence, 24 Cal. 8d 167, 598 P.2d 852, 154 Cal.

Rptr. 907, appeal dismissed for want of a sub-

stantial federal question, 444 U.S, 986 .............. 9,19

Redmond Vv. GAF Corp., 574 F.2d 897.000.000.000 10

Robinson Vv. Lorillard Corp., 444 F.2d 791 .............. 21

School District of Abington Township v. Schempp,

ER TA RAR EA ARERR i rs a ea 16

Sherbert v. Verner, 374 U.S. 898 .o.....ccccceeecces 19

Stone Vv. Graham, 449 U.S. 89 20............cccccccccceseeeeees 16

Thomas V. Review Board of the Indiana Employ-

ment Security Division, No. 79-952 (Apr. 6,

ME ti ic in a 19

Tilton V. Richardson, 408 U.S. 672 .............0.00000 17

Tooley Vv. Martin-Marietta Corp., 648 F.2d 1239.... 14

Trans World Airlines, Inc. v. Hardison, 432 U.S.

ge EE TS lesa TSS 6, 18, 14, 15, 16, 21

United States v. Macintosh, 288 U.S. 606 .............. 14

United States v. Seeger, 380 U.S. 168 -..................... 21

Walz v. Tax Commission, 897 U.S. 664 .........0.......... 17

Welsh v. United States, 398 U.S. 883 ..........00000..... 21

Wisconsin V. Yoder, 406 U.S. 208 200.........cccccccccees 18

Zorach V. Clauson, 348 U.S. 806 oo... 17

Vv

Constitution, statutes and regulation:

United States Constitution :

First Amendment:

Establishment Clause ...... 7, 14, 15, 17, 18, 19, 20

Free Exercise Clause .............-..-..c--essseee 20

Civil Rights Act of 1964, Title VII, 42 U.S.C.

2000e et seq.:

Section 701(j), 42 U.S.C. 2000e(j) ............... passim

Section 703(a), 42 U.S.C. 2000e-2(a) .......... 8,15

Section 708(c), 42 U.S.C. 2000e-2(c) ............ 3,15

Section 703(c) (1), 42 U.S.C. 2000e-2(c)(1).. 9-10

Section 703(c) (2), 42 U.S.C, 2000e-2(c) (2).. 10

Section 703(c) (3), 42 U.S.C. 2000e-2(c) (3).. 10

Section 703(h), 42 U.S.C. 2000e-2(h) ............. 13

National Labor Relations Act, 29 U.S.C. 151, as

amended by Pub. L. No. 96-593, 94 Stat. 3452:

Section 19, 94 Stat. 3452 (to be codified at 29

ON a iar caantsctitenaineinsanstomibtiedl 2-3, 11-12

Se ED cicicsctesecstessasesesecscassreece 11

Miscellaneous:

126 Cong. Rec. (daily ed. Feb. 11, 1980):

i III cichclannashbieasnccennceutintisiptemnstichingninatnpahioveies 12

STTIIIITTIIY fash iehshidicrtneeinesniciedsneniapupitinnbasiemnvecageineneahosien 12

“he SLANE eS ee ae 12

126 Cong. Rec. S16616 (daily ed. Dec. 13, 1980).... 12

In the Supreme Court of the United States

OCTOBER TERM, 1981

No. 81-97

A.O. SMITH CORPORATION, PETITIONER

Vv.

DARREL C. NOTTELSON AND

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

No. 81-323

SMITH STEEL WorKERS D.A.L.U. 19806, AFL-CIO,

PETITIONER

uv.

DARREL C. NOTTELSON AND

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. A-1

to A-22)" is reported at 643 F.2d 445. The mem-

1“Pet, App.” refers to the appendix to the petition in No.

81-97. “Pet. Supp. App.” refers to the supplemental appendix

to the petition in No. 81-97. “A.” refers to the joint appendix

filed in the court of appeals.

(1)

orandum opinions of the district court of December 7,

1979 (Pet. Supp. App. B-1 to B-18) and April 18,

1980 (Pet. Supp. App. B-25 to B-44) are reported

at 481 F. Supp. 756 and 489 F. Supp. 94. The dis-

trict court’s memorandum opinion of September 18,

1980 (Pet. Supp. App. B-45 to B-53) is not reported.

An earlier memorandum opinion of the district court,

entered on December 20, 1976, is reported at 423 F.

Supp. 1345.

JURISDICTION

The judgment of the court of appeals was entered

on February 27, 1981, and petitions for rehearing

were denied on April 20, 1981 (Pet. Supp. App. E-1

to E-2). The petition for a writ of certiorari in No.

81-97 was filed on July 15, 1981. In No. 81-323,

Justice Stevens extended the time for filing the peti-

tion for a writ of certiorari to and including August

18, 1981, and the petition was filed on that date. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

“ STATUTES AND CONSTITUTIONAL

PROVISIONS INVOLVED

The relevant statutory and constitutional provi-

sions are set forth in the petition in No. 81-323 (Pet.

2-4). Also relevant is Section 19 of the National

Labor Relations Act, Pub. L. No. 96-593, 94 Stat.

3452 (to be codified at 29 U.S.C. 169), which

provides:

Any employee who is a member of and adheres

to established and traditional tenets or teachings

of a bona fide religion, body, or sect which has

historically held conscientious objections to join-

ing or financially supporting labor organizations

shall not be required to join or financially sup-

port any labor organization as a condition of

employment; except that such employee may be

required in a contract between such employees’

employer and a labor organization in lieu of

periodic dues and initiation fees, to pay sums

equal to such dues and initiation fees to a non-

religious, nonlabor organization charitable fund

exempt from taxation under section 501(c) (3) of

title 26 of the Internal Revenue Code, chosen by

such employee from a list of at least three such

funds, designated in such contract or if the con-

tract fails to designate such funds, then to any

such fund chosen by the employee. If such em-

ployee who holds conscientious objections pur-

suant to this section requests the labor organiza-

tion to use the grievance-arbitration procedure on

the employee’s behalf, the labor organization is

authorized to charge the employee for the reason-

able cost of using such procedure.

STATEMENT

1. Darrel C, Nottelson, a member of the Seventh

Day Adventist Church, brought this Title VII em-

ployment discrimination action in the United States

District Court for the Eastern District of Wisconsin.

Nottelson, a long-time employee of A.O. Smith Cor-

poration, claimed that his employer and Smith Steel

Workers, D.A.L.U. 19806, AFL-CIO, the bargaining

agent for A.O. Smith’s employees, had discriminated

against him because of his religion, in violation of

Sections 701(j) and 703(a) and (c) of Title VII of

the Civil Rights Act of 1964, 42 U.S.C. 2000e(j),

2000e-2(a) and (c), by causing him to be discharged

from his employment when he refused, because of his

religious convictions, to pay union dues (Pet. App.

A-2 to A-4).

The collective bargaining agreement between Local

19806 and A.O. Smith contains a union security clause

requiring union membership as a condition of employ-

ment (Pet. App. A-2; A. 419-420). Nottelson was

4

first employed by A.O. Smith in 1947, and he joined

the union at that time (Pet. App. A-2). In May

1966, Nottelson became a member of the Seventh Day

Adventist Church, which teaches that it is morally

wrong to be a member of, or pay dues to, a labor

union (ibid.). In December 1974, at a meeting also

attended by a representative of the Seventh Day Ad-

ventist Church, Nottelson advised Local 19806 presi-

dent Paul Blackman that he objected to the payment

of union dues because his sincerely held religious be-

liefs prevented him from supporting labor unions

(ibid.; A, 188-190, 269). Nottelson and the church

representative proposed that Nottelson be allowed,

in lieu of paying dues, to donate an equivalent amount

to a mutually agreeable non-religious charity (A.

190). Nottleson’s representative also informed Black-

man of various accommodations that other labor or-

ganizations had made in similar circumstances (A.

192-198; see also A. 337-346). Nottelson and his

representative also called to Blackman’s attention an

AFL-CIO Executive Council statement urging all af-

filiated unions to “adopt procedures for respecting

sincere personal religious convictions as to union

membership” and “to insure that this policy is fully

and sympathetically implemented by all local unions”

(A. 199, 480; see Pet. App. A-10).

On January 1, 1975, Nottelson ceased paying union

dues and began paying an equivalent amount to the

American Cancer Society, without the assent of the

union (Pet. App. A-2). Thereafter, on April 15,

1975, Nottelson was expelled from the union, which

then requested his discharge by A.O. Smith, pursuant

to the collective bargaining agreement (Pet. App.

A-3; A. 486-438).

Nottelson’s employer apparently learned of the con-

troversy on March 11, 1975, when Nottelson and his

5

church representative informed the company’s per-

sonnel director of Nottelson’s predicament (A. 68).

The personnel director indicated that the company

would not deviate from the collective bargaining

agreement (A. 68-71). Shortly thereafter, the com-

pany informed the union that it was willing to waive

the union security clause provision as to Nottelson

(A. 73).2 On April 24, 1975, however, the company

discharged Nottelson, pursuant to the union’s request

(Pet. App. A-3). This action followed.’

2. On December 20, 1976, the district court denied

the union’s motion to dismiss, holding that the rights

of an individual employee under Title VII could not

be “eliminated by the agreement between the union

and his employer,” and that, absent a showing of

hardship, the union must attempt to accommodate a

*The company proposed to the union that Nottelson be

allowed to place his dues in escrow, pending litigation of the

dispute (A, 76). The union rejected this proposal, which

would not have been acceptable to Nottelson in any event

(A. 76, 83, 211).

* After requesting Nottelson’s discharge, the union “offered

to remove [his] name from its membership listings, but in-

sisted that [he] continue to pay an amount equal to the dues

to [the] union ‘for services both past and presently being

rendered’” (Pet. Supp. App. B-3; see also Pet. App. A-10

n.8). Nottelson rejected this offer on religious grounds (Pet.

Supp. App. B-3 to B-4).

Pursuant to a temporary restraining order entered by the

district court, Nottelson returned to work on May 1, 1975.

The restraining order, as extended, continued in force until

July 10, 1975, when the district court denied Nottelson’s

motion for a preliminary injunction on the ground that the

court lacked jurisdiction because the Commission had not is-

sued a right-to-sue letter. Thus, Nottelson was again dis-

charged on July 11, 1975 (Pet. App. A-3). Nottelson there-

after received a right-to-sue letter and filed an amended com-

plaint on October 29, 1975 (ibid.).

religious objection to the payment of dues (423 F.

Supp. at 1348). At trial, union officials defended

the union’s unwillingness to accommodate Nottelson

by claiming, as a general matter, that an employee’s

exemption would allow him to receive the benefits of

union representation without sharing the costs and

thus would encourage “free riders” (Pet. App. A-9).

Local president Blackman testified that he was aware

that the AFL-CIO Executive Council had urged that

religious objectors be accommodated, and that other

unions had accommodated religious beliefs such as

those of Nottelson, without suffering harm (id. at A-

10). It was also established that the union has ap-

proximately 4,900 members, who pay monthly dues of

$10 (A, 51, 188, 287), that the union would not be

harmed by the loss of Nottelson’s dues, and that no

union members except Nottelson had objected to pay-

ing union dues and offered to pay the equivalent

amount to charity (Pet. App. A-10). The local presi-

dent guessed that exempting Nottelson might create a

“steamroller effect” (ibid.). For its part, the com-

pany conceded that it would not have suffered any

undue hardship if, with the union’s consent, it had

accommodated Nottelson’s religious beliefs by exemp-

ting him from the union security clause (A. 410).

8. Based on the trial evidence and this Court’s

opinion in Trans World Airlines, Inc. v. Hardison,

432 U.S. 638 (1977), the district court held (Pet.

Supp. App. B-14) that “the accommodation suggested

by [Nottelson], whereby [he] would contribute an

amount equal to union dues to a non-religious charity,

does not constitute undue hardship within the mean-

ing of 42 U.S.C. §2000e(j).” The district court

stated (Pet. Supp. App. B-14 to B-15):

7

{Nottelson’s] offer of accommodation would be

only a de minimus [sic] cost to defendants.

There is no evidence that many workers other

than [Nottelson] would seek a similar accom-

modation 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 charity. In addition, [Nottelson] 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 ac-

cepting [Nottelson’s] offer would have been only

de minimus [sic].

The court therefore found that, “[g]Jiven the reason-

ableness of [Nottelson’s] offer of accommodation and

its de minimus [sic] cost, defendants have failed to

carry their burden of establishing that its acceptance

would constitute an undue hardship within the mean-

ing of the statute” (Pet. Supp. App. B-16 to B-17).

Prior to the entry of judgment, defendants moved

for reconsideration on the ground, among other things,

that Section 701(j) of Title VII, 42 U.S.C. 2000e(j),

violated the Establishment Clause of the First Amend-

ment. The district court rejected that argument (Pet.

Supp. App. B-34 to B-35), following this Court’s anal-

ysis in Committee for Public Education v. Nyquist,

413 U.S. 756, 773 (1973).*

* Each defendant also argued that the other should pay the

full amount of the backpay liability, but the district court

rejected these arguments on the ground that both defendants

were culpable (Pet. Supp. App. B-35 to B-37).

4. The court of appeals affirmed by divided vote.‘

The court held that Section 701(j) of Title VII, 42

U.S.C. 2000e(j), creates an exception to the general

authorization for union security clauses contained in

the National Labor Relations Act, 29 U.S.C. 151 et

seq., and that both the company and the union were

therefore required, absent undue hardship to them,

to accommodate Nottelson’s religiously motivated re-

fusal to pay union dues (Pet. App. A-7). The court

of appeals further held that, in determining whether

the company and union had shown undue hardship,

the district court had applied the correct legal stand-

ard, i.e., whether accommodation would involve more

than de minimis cost, and that the record fully sup-

ported the district court’s findings that no undue

hardship had been established (Pet. App. A-8 to

A-12).

The court of appeals also upheld the constitution-

ality of Section 701(j) under the three-part test ar-

ticulated in Committee for Public Education v. Ny-

quist, supra, 413 U.S. at 772-773. The court con-

cluded (Pet. App. A-13 to A-15; quoting also Griggs

v. Duke Power Co., 401 U.S. 424, 429 (1971)) that:

(1) the statute has a secular purpose—“ ‘to achieve

equality of employment opportunities’”; (2) it does

not impermissibly advance religion, but merely

“reliev[es] * * * individuals of a special burden

that others do not suffer by permitting them to ful-

fill their societal obligations in a different manner”;

and (8) it does not foster “excessive government

*The court of appeals granted the Commission leave to

intervene in this action on June 19, 1980 (Pet. App. A-6).

The decision of the court of appeals was entered on February

27, 1981 (id. at A-1), and rehearing en banc was denied on

April 20, 1981 (Pet. Supp. App. E-1 to E-2).

entanglement with religion.”* Judge Pell dissented

on constitutional grounds (Pet. App. A-18 to A-22).

ARGUMENT

Every court of appeals that has addressed the ques-

tion has held that Section 701(j) of Title VII, 42

U.S.C. 2000e(j), requires that unions and employers

exempt employees who object, on religious grounds, to

the payment of union dues, unless such an accom-

modation would constitute undue hardship.’ Not only

is there no conflict among the circuits, but the issue

lacks prospective importance because in December

1980, Congress amended Section 19 of the National

Labor Relations Act, 29 U.S.C. 169, to create a sig-

nificantly broader exemption for persons who object

on religious grounds to the payment of union dues,

and thereby readjusted the relationship between the

provisions of Title VII and the National Labor Re-

lations Act. Further review is therefore unwarranted

at the present time.

1. a. As the court of appeals correctly held, Sec-

tion 701(j) requires that employers and unions °* ac-

*The court of appeals held (Pet. App. A-12 to A-13), in

the alternative, that its holding was required by Rankings v.

Commission on Professional Competence, 24 Cal. 8d 167, 593

P.2d 852, 154 Cal. Rptr. 907, appeal dismissed for want of a

substantial federal question, 444 U.S. 986 (1979).

7™See Anderson v. General Dynamics, Convair Aerospace

Division, 589 F.2d 397, 400-401 (9th Cir, 1978), cert. denied,

442 U.S. 921 (1979); Burns v. Southern Pacific Transporta-

tion Co., 589 F.2d 408, 405 (9th Cir. 1978), cert. denied, 439

U.S. 1072 (1979) ; McDaniel v. Essex International, Inc., 571

F.2d 338, 341 (6th Cir. 1978) ; Cooper v. General Dynamics,

Convair Aerospace Division, 583 F.2d 163, 169-170 (5th Cir.

1976), cert. denied, 433 U.S, 908 (1977).

* Although Section 701(j) does not specifically refer to

union accommodation of employee religious practices, the

union’s obligation is based on Section 703(c) (1) of Title VII,

42 U.S.C. 2000e-2(c) (1) (a labor organization may not “ex-

10

commodate “all aspects of [employée] religious ob-

servance and practice” (Section 701(j) of Title VII,

42 U.S.C. 2000e(j); emphasis added). The plain

language of the statute indicates “that it applies to

all religious observances and practices and is not

limited to claims of discrimination based on require-

ments of Sabbath work.” McDaniel v. Essex Interna-

tional, Inc., 571 F.2d 338, 342 (6th Cir. 1978);

Cooper v. General Dynamics, Convair Aerospace

Division, 553 F.2d 163, 168 (5th Cir. 1976). Cf.

Redmond v. GAF Corp., 574 F.2d 897, 900 (7th Cir.

1978) (“we note that the very words of the statute

* * * leave little room for * * * a limited interpreta-

tion’”’).’

clude or * * * expel from its membership, or otherwise dis-

criminate against, any individual because of * * * religion

** *”) on Section 703(c) (2) of Title VII, 42 U.S.C, 2000e-

2(c) (2) (a labor organization may not “limit, segregate, or

classify its membership * * * in any way which would deprive

or tend to deprive any individual of employment opportuni-

ties, or would limit such employment opportunities or other-

wise adversely affect his status as an employee * * *, because

of such individual’s * * * religion * * *”), and on Section

708(c) (8) of Title VII, 42 U.S.C, 2000e-2(c) (3) (a labor

organization may not “cause or attempt to cause an employer

to discriminate against an individual in violation of this

section”).

* Petitioner A.O. Smith Corporation states (Pet. 50; em-

phasis in original): “It is noteworthy 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 protected by neither Title

VII nor the First Amendment.’ Sixth Annual Report, Equal

Employment Opportunity Commission, p. 12 (1972).” As

Local 19806 more accurately points out (Pet. 13), the state-

ment contained in the 1972 Annual Report merely described

a Commission determination that occurred in 1971, prior to

the enactment of Section 701(j). Although the Commission

il

b. Both the company (Pet. 50-51) and Local 19806

(Pet. 14-17) seek to avoid the broad sweep of this

provision by arguing that Congress’ consideration of

legislation to amend the National Labor Relations

Act, with respect to the payment of union dues by re-

ligious objectors, shows that Congress did not intend

Section 701(j) to ‘apply in this area.” Thus, peti-

tioners seek to understand Congress’ intent in enact-

ing Section 701(j) by canvassing the legislative his-

tory of these proposed amendments to the NLRA. See

Local 19806 Pet. 14-17 & n.9. That legislative history

is singulariy unhelpful, however, because it neither

contains any reference to Section 701(j) nor pro-

vides any explanation for this omission. Moreover,

petitioners’ reliance on post-enactment “legislative

history” is incomplete at best because they ignore the

legislative history of the December 1980 amend-

ment" to the NLRA. Citing with approval the rele-

had previously promulgated a guideline (29 C.F.R. 1605.1(b)

(1967)) similar to Section 701(j), the Commission did not

believe that its guidelines could create an exception to the

National Labor Relations Act. However, such an exception

was expressly created by Congress in 1972, when it enacted

Section 701(j).

1° Among other things, this argument ignores the differ-

ence in scope between 701(j) and the proposed NLRA

amendments. For instance, unlike Section 701(j), the pro-

posed NLRA amendments (see Local 19806 Pet. 14-15 n.9),

including those enacted in 1974 and 1980, did not contain an

undue hardship defense, and thus required exemption for

religious objectors regardless of the resulting hardship to

the union. Congressional action or inaction with respect to

these bills is therefore irrelevant to the meaning of Sec-

tion 701(j).

1! Congress amended the NLRA on December 24, 1980 (see

Pub. L. No. 96-593, 94 Stat. 3452) to provide a broad exemp-

tion for employees belonging to a “bona fide religion, body,

12

vant decisions of the courts of appéals, the sponsors

of that amendment clearly indicated their understand-

ing that Section 701(j) of Title VIT also provides pro-

tection to union dues objectors.”

or sect which has historically held conscientious objections to

joining or financially supporting labor organizations” from

payment of union dues or fees. The law provides that such

employees may be required by a bargaining agreement to con-

tribute a sum equal to union dues and fees to a nonreligious

charity and pay costs incurred by unions in pursuing griev-

ance-arbitration procedures where these are undertaken at

the employee’s request. Because the 1980 amendment to the

NLRA has added another element to the overall regulatory

scheme in this area, we believe that it would be appropriate

for this Court to consider the questions raised here in a case

in which the lower courts have considered the significance

of this amendment (if a conflict in the circuits develops).

12 See 126 Cong. Rec. S16616 (daily ed. Dec. 13, 1980)

(remarks of Senator Melcher) ; 126 Cong. Rec. H760 (daily

ed. Feb. 11, 1980) (remarks of Rep. Thompson: “[T]he bill

would make the National Labor Relations Act consistent with

section 701(j)” and the “option of allowing a qualifying indi-

vidual the right to pay the equivalent of [union] dues to a non-

religious charity clearly constitutes a ‘reasonable accommo-

dation’ to the individual’s religious beliefs.”); ibid. (re

marks of Rep. Hinson: The “legislation reflects an accom-

modation among constitutional principles; the basic rights

protected in Title VII * * *, [and] the rights created by the

National Labor Relations Act * * *.”) ; id. at H763 (remarks

of Rep. Clausen: “[T]he purpose of this bill is to resolve any

conflict and to express congressional intent as to the reason-

ableness of a charity substitution accommodation which all of

the Federal courts of appeals ruling on the issue have found

to be an accommodation acceptable under Title VII.”) ; ibid.

(remarks of Rep. Duncan: “The conscience amendment recon-

ciles * * * the National Labor Relations Act and the

* * * reasonable accommodation section, 43 USCA 2000e(j)

[sic].”) ; id. at H764 (remarks of Rep. Erlenborn: “[T]his

bill accepts the principles of religious liberty as guaranteed

by our Constitution and implemented by the Equal Employ-

ment Opportunity Act.’’).

13

ce. Finally, the court of appeals’ holding that Sec-

tion 701(j) affords some protection to employees

who object on religious grounds to the payment of

union dues is fully consistent with the well-established

principle that our “national labor policy embodies the

principles of nondiscrimination as a matter of highest

priority.” Emporium Capwell Co. v. Community Or-

ganization, 420 U.S. 50, 66 (1975); Alexander v.

Gardner-Denver Co., 415 U.S. 36, 47 (1974). See

McDaniel v. “ssex International, Inc., supra, 571

F.2d at 343; Anderson v. General Dynamics, Convair

Aerospace Division, supra, 589 F.2d at 400-401.

Petitioners stand this principle on its head when they

contend that Congress’ general (and earlier) author-

ization of union security arrangements in the Na-

tional Labor Relations Act shows that Congress did not

intend, despite the broad languae used in Section

701(j), to allow even minor modifications of such

arrangements when their effect is to discriminate

against individuals whose deeply-held religious beliefs

prevent them from paying union dues. Moreover,

contrary to petitioners’ contention, their argument is

not supported by this Court’s decision in Trans World

Airlines, Inc. v. Hardison, supra, in which this Court.

held only that “[w]ithout a clear and express indi-

cation from Congress, we cannot agree * * * that an

agreed upon seniority system must give way when

necessary to accommodate religious observances”

(432 U.S. at 79; emphasis added). In Section 703

(h) of Title VII, 42 U.S.C. 2000e-2(n), Congress

accorded special status to bona fide seniority systems

and, for that reason, Section 701(j) does not invali-

date a bona fide seniority system “even if the system

has some discriminatory consequences” (432 U.S. at

82). However, Title VII contains no such exception

relating to bona fide union security arrangements

and Section 701(j)’s mandate of reasonable accom-

14

modation of “all aspects of religious observance”

must therefore extend to religious objections to dues

payments.”

2. The court of appeals also correctly held that Sec-

tion 701(j) does not violate the Establishment Clause

of the First Amendment. The requirement that em-

ployers reasonably accommodate their employees’ re-

ligious practices, when accommodation imposes no

more than a de minimis burden on others (7'rans

World Airlines, Inc. v. Hardison, supra, 432 U.S. at

84) is, as the court of appeals concluded, fully con-

sistent with “our happy tradition” of “avoiding un-

necessary clashes with the dictates of conscience”

(Pet. App. A-14; quoting United States v. Macintosh,

283 U.S. 605, 684 (1931) (Hughes, J., dissenting) ).

As the court of appeals noted (Pet. App. A-14), the

purpose and effect of Section 701(j) are modest:

“Section 701(j) is * * * plainly intended to re-

lieve individuals of the burden of choosing be-

tween their jobs and their religious convictions where

such relief will not unduly burden others.” In-

deed, each court of appeals to have considered the

issue has upheld the constitutionality of Section

701(j). See Tooley v. Martin-Marietta Corp., 648

F.2d 1239 (9th Cir. 1981); Anderson v. General

Dynamics, Convair Aerospace Division, 648 F.2d

1247 (9th Cir. 1981); Cummins v. Parker Seal Co.,

516 F.2d 544 (6th Cir. 1975), aff'd by an equally

divided Court, 429 U.S. 65 (1976), vacated and re-

manded on other grounds, 433 U.S. 903 (1977).

Based on this Court’s decision in T'rans World Air-

lines, Inc. v. Hardison, supra, 482 U.S. at 85, the

Not only does Title VII fail to grant a special status to

union security arrangements, as it does to bona fide seniority

systems, but (as the court of appeals recognized) broad ex-

ceptions to the general authorization of union security clauses

are also found in the NLRA. See Pet. App. A-7.

15

court of appeals correctly recognized (Pet. App.

A-14) that Section 701(j) simply describes more

fully what is prohibited as religious discrimination

under Title VII, and thereby includes adverse em-

ployment actions taken against persons whose reli-

gious observances conflict with work rules, if the con-

flict may be resolved without significantly burdening

coworkers or imposing more than de minimis costs on

unions or employers."* This provision clearly passes

muster under Committee for Public Education v.

Nyquist, supra, 413 U.S. at 773 (“to pass muster

under the Establishment Clause, the law in question,

first, must reflect a clearly secular legislative pur-

pose, * * * second, must have a primary effect that

neither advances nor inhibits religion * * * and,

third, must avoid excessive government entanglement

with religion * * *”).

a. In Trans World Airlines, Inc. v. Hardison,

supra, 432 U.S. at 85, this Court identified the

“paramount concern of Congress in enacting Title

VII” as the “elimination of discrimination in em-

ployment” because of religion, race, sex, and national

origin. The reasonable accommodation requirement

of Section 701(j) serves the same clearly secular

legislative purpose as that served by Title VII gen-

erally, for it does no more than define “religion” (so

as to identify those circumstances in which religious

practices may properly be taken into account) in a

way reasonably calculated to ensure that employ-

“Of course, neither petitioner contends that Title VII's

basic prohibition (Section 703(a) and (c), 42 U.S.C. 2000e-

2(a) and (c)) of religion-based discrimination is either be-

yond the legislative power of Congress or an “establishment

of religion.” Likewise, Section 701(j) does not violate the

Establishment Clause because it simply defines the conduct

that constitutes such discrimination.

16

ment practices “fair in form, but discriminatory in

operation” (Griggs v. Duke Power Co., supra, 401

U.S. at 431), are effectively covered by the basic pro-

hibition of Title VII."

There is no merit to A.O. Smith’s contrary assertion

(Pet. 25-26) that “it is evident that the purpose of [Section

701(j)] was to aid certain sects by giving them a statutory

‘right’ to have their Sabbath practices accommodated by em-

ployers.” Although A.O. Smith points to certain remarks of

Senator Randolph, the sponsor of the legislation, which re-

marks (Pet. App. C-1 to C-9) do indeed evidence concern for

the plight of certain Sabbatarian sects, a fair reading of the

legislative history shows that these remarks were intended

merely to be illustrative in the sense of presenting a specific

example of the need for general legislation to further advance

the goal of prohibiting religion-based employment discrimina-

tion. Indeed, in Trans World Airlines, Inc. v. Hardison, supra,

432 U.S. at 74-75, this Court had occasion to consider the leg-

islative history of Section 701(j), and stated that “[t]he pro-

ponent of the measure, Senator Jennings Randolph, expressed

his general desire ‘to assure that freedom from religious dis-

crimination in the employment of workers is for all time

guaranteed by law,’ 118 Cong. Rec. 705 (1972).” The obvious

secular purpose of Section 701(j) contrasts sharply with the

clearly religious motivation underlying the state statutes that

this Court has invalidated because of impermissible purpose.

See School District of Abington Township v. Schempp, 374

U.S. 208, 222-225 (1963) (purpose of state law requiring

Bible reading in public schools is to promote religion) ;

Epperson Vv. Arkansas, 398 U.S. 97, 107-108 (1968) (purpose

of state law banning teaching of evolution in public schools

was to promote the biblical theory of the origins of man);

Stone v. Graham, 449 U.S, 39, 41, 42 (1980) (state stat-

ute requiring the posting of Ten Commandments in public

schoolrooms violates Establishment Clause because the stat-

ute’s “preeminent purpose”’—‘to induce the schoolchildren

to read, meditate upon, perhaps to venerate and obey * * *

a sacred text in the Jewish and Christian faiths * * * is

plainly religious”).

17

b. Petitioners contend that Section 701(j) imper-

missibly favors certain religious sects over others and

religious employees over non-religious because re-

ligious dues objectors, unlike other employees or other

non-religious dues objectors, are permitted to receive

the benefits of collective bargaining without paying

dues. But petitioners fail to recognize that any ac-

commodation, including those previously upheld by

this Court, may be said to aid or benefit religious

practice or groups in some sense. See, e.g., Gillette v.

United States, 401 U.S. 487, 462 (1971) (upholding

exemption for religious conscientious objectors to

service in the armed services); Zorach v. Clauson,

343 U.S. 306 (1952) (upholding release of students

from public schools to attend religious centers for

religious instruction or devotional exercise.)'* In-

deed, virtually any provision designed to give religious

belief and practice breathing space in which to sur-

vive “aids” religious activity. However, as this Court

has said, “[t]he crucial question is not whether some

benefit accrues to a religious institution as a conse-

quence of the [legislation], but whether its principal

or primary effect advances religion.” Tilton v. Rich-

ardson, 403 U.S. 672, 679 (1971).

16 Such legislation has been upheld despite its indirect or

incidental burden on non-accommodated parties. For example,

when conscientious objectors are exempted from service in

the armed forces, others necessarily will be required to serve

in their stead. Gillette v. United States, supra, 401 U.S. at

448-450. Similarly, churches may be exempted from property

taxes, thus presumably increasing the amount that other

property owners must pay. Walz v. Tax Commission, 397

U.S. 664 (1970). The minor adjustments required in this

case, permitting the diversion of union dues to a charitable

organization for a person whose religion forbids contributions

to unions, are certainly no more significant than those that

have previously been upheld under the First Amendment.

18

Section 701(j) does no more than extend equal em-

ployment opportunity protection to a class of individ-

uals whose religious observances might otherwise

needlessly cost them their jobs. This Court has recog-

nized that there is a constitutional difference between

the active support or “direct and substantial ad-

vancement” (Committee for Public Education v.

Nyquist, swpra, 413 U.S. at 783 n.89) prohibited by

the Establishment Clause, and the “indirect or re-

mote” effect of essentially defensive protection such

as that afforded by Section 701(j). See Wisconsin v.

Yoder, 406 U.S. 205, 284-235 n.22 (1972)."

7 At all events, petitioners’ contention that Section 701(j)

impermissibly benefits religious objectors, while impermissibly

burdening others, ignores the record facts here. Under the

approved accommodation, Nottelson will expend the same

amount of “dues” as his union co-workers. Moreover, there

was no showing that the diversion of Nottelson’s dues to

charity would require any increase in the amount required

to be paid by the other members (Pet. App. A-10). Indeed,

the court of appeals noted (ibid.) that even if dues had to

be raised as a result of this accommodation, the cost of any

such “subsidization” would be de minimis (2.4 cents per year

per member). Because Nottelson must pay the same amount

that union members pay, others will not be encouraged to

take the same course, absent similar religious beliefs. More-

over, the alternative to this accommodation—the discharge of

Nottelson from his employment—is contrary to the funda-

mental policy of Title VII in that such a discharge would be

based upon his adherence to his religious beliefs and, obvi-

ously, totally unrelated to his ability to do his job. Finally,

the contention of Local 19806 (Pet. 22), that this case presents

the Court with the important task of “harmoniz[ing] Gillette

[which upholds the selective exemption] with the line of cases

invalidating ‘special economic benefits’ to particular religious

sects” is specious. This case does not involve diversion of

union funds to religious institutions or financial support of

religious activity of any sort.

19

A.O. Smith also contends (Pet. 28-31) that, be-

cause the obligation relieved by Section 701(j) is not

one imposed by the government, the Establishment

Clause prohibits the government from legislating

affirmatively to relieve this burden. However, gov-

ernmental action to accommodate the religious prac-

tices of its own employees—which requires other

government employees to make the necessary adjust-

ment—does not impermissibly tip the balance toward

government establishment of religion. Rankins v.

Commission of Professional Competence, 24 Cal. 3d

167, 593 P.2d 852, 154 Cal. Rptr. 907, appeal dis-

missed for want of a substantial federal question,

444 U.S. 986 (1979). If the government may reason-

ably accommodate the religious observances of its

own employees without violating the Establishment

Clause, the government must also be free to require

private employers to do the same thing to prohibit

religious-based discrimination in interstate commerce.

In each instance, the reasonable accommodation

merely implements societal “neutrality in the face of

religious differences.” Sherbert v. Verner, 374 U.S.

398, 409 (1963); Thomas v. Review Board of the

Indiana Employment Security Division, No. 79-952

(Apr. 6, 1981), slip op. 12."

We note, of course, that the burden that was relieved

here by Section 701(j)—the mandatory payment of union

dues—arises from an obligation that has been sanctioned by

federal labor law and policy. See Linscott v. Miller Falls

Co., 440 F.2d 14, 16-17 (1st Cir.), cert. denied, 404 U.S. 872

(1971). See also Buckley v. American Federation of Televi-

sion and Radio Artists, 496 F.2d 305, 311 (2d Cir.), cert. de-

nied, 419 U.S, 1093 (1974) ; Railway Employees’ Department

v. Hanson, 351 U.S. 225, 232 (1956). In the absence of Sec-

tion 701(j), therefore, “if the company declined to discharge

the plaintiff [because he refused to pay union dues], the union

20

c. The court of appeals properly held (Pet. App.

A-15) that Section 701(j) does not foster exces-

sive government entanglement with religion because

“(t]he government is required only to determine

whether a belief is “religious” within the meaning

of the statute * * * and whether it is sincerely held.”

Courts routinely are required to undertake such an

inquiry to adjudicate claims arising under the Free

Exercise and Establishment Clauses, such as, for in-

stance, claims involving statutory tax exemptions for

religious institutions and conscientious objector

status under the laws relating to conscription.

The entanglement doctrine has been invoked only

where legislation requires that the government in-

trude excessively into the affairs of religious insti-

tutions. See NLRB v. Catholic Bishop of Chicago,

440 U.S. 490 (1979); New York v. Cathedral Acad-

emy, 434 U.S. 125 (1977); see also Lemon v. Kurtz-

man, 403 U.S, 602, 614 (1971). Government intru-

sion has been held “excessive” where it entails per-

vasive monitoring of such institutions by secular au-

thorities and, therefore, carries the threat of gov-

ernment direction and control of religion—precisely

the evil at which the Establishment Clause is aimed.

See Lemon v. Kurtzman, supra, 408 U.S. at 616-620;

NLRB vy. Catholic Bishop of Chicago, swpra, 440 U.S.

at 508. As the court of appeals correctly held, a

court’s determination of the religious nature of a

could institute a federally supported suit, if not an unfair

labor practice charge, for failure to live up to its bargaining

agreement.” Linscott v. Miller Falls Co., supra, 440 F.2d

at 17. Thus, even if the state may constitutionally mandate

accommodation only with respect to burdens imposed by it,

this “imprimatur of the federal law” (Railway Employees’

Department v. Hanson, supra, 351 U.S. at 232) justifies Con-

gress’ decision to relieve the burden thus imposed upon those

who object on religious grounds to the payment of union dues.

21

Title VII plaintiff’s practices or beliefs involves no

similar interference with religious institutions. See

generally United States v. Seeger, 380 U.S. 163

(1965); Welsh v. United States, 398 U.S. 333

(1970).

3. A.O. Smith also contends that the courts below

erred in finding that it could have accommodated Not-

telson’s beliefs without undue hardship. In part, the

company contends (Pet. 46) that an employer can es-

tablish an undue hardship defense, as a matter of

law, by showing that accommodation would require

its unilateral departure from a collective bargaining

agreement. However, this argument is clearly incon-

sistent with the well established principle (Pet. App.

A-11; citations omitted) “that Title VII rights can-

not be bargained away and that a collective bargain-

ing agreement therefore does not of itself provide a

defense for Title VII violations.” See Bowe v. Col-

gate-Palmolive Co., 416 F.2d 711, 715 (7th Cir.

1969); Norman v. Missouri Pacific R.R., 414 F.2d

78, 80-84 (8th Cir. 1969); Robinson v. Lorillard

Corp., 444 F.2d 791, 799 (4th Cir. 1971); cf. Alex-

ander v. Gardner-Denver Co., supra. Thus, an em-

ployer is not immune from liability under Title

VII simply because its discriminatory policy is

embodied in a collective bargaining agreement. More-

over, to the extent that A.O. Smith argues that, as

a matter of fact, it would be subject to more than

de minimis harm if it were to accommodate Nottelson,

that factual question was decided adversely to the

company by both courts below and does not therefore

warrant review by this Court. Berenyi v. INS, 385

U.S. 630, 685 (1967) ; Graver Mfg. Co. v. Linde Co.,

336 U.S. 271, 275 (1949). Indeed, both courts be-

low applied the legal standard set forth in Hardison:

22

undue hardship exists where the cost imposed by the

accommodation is more than de minimis (Pet. App.

(A-9; Pet. Supp. App. B-14).

CONCLUSION

The petitions for a writ of certiorari should be

denied.

Respectfully submitted.

Rex E. LEE

Solicitor General

CONSTANCE L. DUPRE

Acting General Counsel

Equal Employment Opportunity Commission

OCTOBER 1981

&. 6. GOVERNMENT PainTiNG OFrice, 1901 e506) 652