Hardison v. Trans World Airlines, Inc.

• Decision Date: 16 December 1975
• Docket Number: No. 74--1424,74--1424
• Citation: 527 F.2d 33
• Parties: 11 Fair Empl.Prac.Cas. 1121, 10 Empl. Prac. Dec. P 10,554 Larry G. HARDISON, Appellant, v. TRANS WORLD AIRLINES, INC., et al., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 33

527 F.2d 33

11 Fair Empl.Prac.Cas. 1121,

10 Empl. Prac. Dec. P 10,554

Larry G. HARDISON, Appellant, v. TRANS WORLD AIRLINES, INC., et al., Appellees.

No. 74--1424.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 10, 1974.

Decided Dec. 16, 1975.

William H. Pickett, Kansas City, Mo., for appellant.

Michael D. Gordon, Kansas City, Mo., for appellees, Unions.

George E. Feldmiller and James J. Mollenkamp, Kansas City, Mo., for appellee, TWA.

Dennis Rapps, Brooklyn, N.Y., and Nathan Lewin, Washington, D.C., for amicus curiae National Jewish Commission on Law and Public Affairs.

William A. Carey and Joseph T. Eddins, Associate Gen. Counsel, Beatrice Rosenberg, Charles L. Reischel and Washington Marshall, Attys., E.E.O.C., Washington, D.C., for amicus curiae.

Before LAY, BRIGHT and WEBSTER, Circuit Judges.

WEBSTER, Circuit Judge.

This appeal presents for our review important questions concerning the requirements of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the guidelines on religious discrimination promulgated thereunder, 29 C.F.R. § 1605 (1974). Larry G. Hardison, a member of the Worldwide Church of God, initiated this employment discrimination case against his union and his employer following his discharge as a Trans World Airlines (TWA) stores clerk for alleged insubordination. The factual background of this litigation is not disputed, and, in summarizing the relevant details, we rely heavily upon the findings of the District Court, ¹ reported in Hardison v. Trans World Airlines, 375 F.Supp. 877 (W.D.Mo.1974).

Hardison's job was covered by a collective bargaining agreement negotiated with TWA by the International Association of Machinists and Aero Space Workers, the International Association of Machinists and Aero Space Workers, District 142, and the International Association of Machinists and Aero Space Workers, Local 1650, all defendants below. ² That agreement contained seniority provisions relating, inter alia, to days off and vacations.

The Stores Department at the Kansas City International Airport, in which Hardison had worked from June 5, 1967, until his discharge on April 2, 1969, operates twenty-four hours per day, seven days per week. Hardison initially worked as a stores clerk in Building No. 1, performing work which was essential to TWA's operation but not unique. In

the spring of 1968, Hardison began studying the teachings of the Worldwide Church of God. That religion requires its members to refrain from all work on certain designated holidays as well as on its Sabbath, which occurs each week from sundown on Friday to sundown on Saturday. Hardison discussed his religious studies with Everett Kussman, the Manager of the Stores System, who notified a TWA supervisor by memo as follows:

1. Agreed to Steward seeking swap of days off

2. Agreed to odd holidays (excused T.O.) if he works the 'Christian' holidays when requested.

3. He advises you are getting him another job--agreed you should. Belongs to the 'World Wide Christian Church' Garner Ted Armstrong Ambassador College Pasadena Calif.

Soon thereafter, the supervisor notified Kussman that he had been unable to make any 'headway' in trying to resolve the problem. Hardison continued to work on Friday evenings and Saturdays, including some voluntary overtime work. On October 4, 1968, Hardison wrote Kussman that he had transferred to the 11:00 p.m. to 7:00 a.m. shift as a result of which he would be able to observe the Sabbath and would soon formally enter the Worldwide Church of God. He reminded Kussman of his assurance that Hardison would be excused from work on certain holidays under those circumstances. Subsequently, he furnished Kussman at his request a list of religious holidays and dates thereof.

On December 2, 1968, Hardison bid for a position as a stores clerk in another section in Building No. 2 in order to obtain a day shift position. Hardison indicated that his reason for transferring to the Building No. 2 section was his recent marriage: he felt day work would be more compatible with married life. Each of these stores clerk sections was governed by a separate seniority list. Thus, although Hardison had relatively high seniority in Building No. 1, he had the second lowest seniority position in Building No. 2. As a result, his ability to select days off was considerably diminished.

In March, 1969, Bill Wyatt, the man on the bottom of the seniority list in the Building No. 2 section, went on vacation. Hardison was called to substitute for Wyatt, whose work schedule included Friday evenings and Saturdays. On March 6, 1969, Hardison met with Kussman and James Tinder, a union steward, to discuss the conflict between this schedule and Hardison's religious practices. Several possible adjustments were explored, ³ but since all required Hardison to do some work on the first Saturday, March 8, none of these adjustments were instituted. Hardison did not file a grievance concerning this unsatisfactory resolution although he knew he had a right to do so.

Hardison did not report for work on Saturday, March 8, informing the storekeeper that he had personal business to do. Hardison was likewise absent from work on the following two Saturdays, March 15 and March 22. He was then notified that a discharge hearing had been scheduled. Prior to that hearing, Hardison met with Local 1650's grievance committee. Various avenues of legal redress and defenses were discussed, and it was decided that the best approach would be a plea for leniency coupled with an effort to obtain reversal at a higher level in the event of an adverse result. The possibility that the union might waive its seniority rules to permit Hardison to work on a different shift was not discussed. Following the meeting, Hardison voluntarily changed his shift to the 'twilight shift' (3:00 p.m. to 11:00 p.m.) in an effort to resolve the problem. When Hardison left work early (at sundown) on Friday, March 28, however, it became apparent that this change in schedule would not obviate future problems as Local 1650 had hoped.

The discharge hearing was held on March 31, 1969, before TWA representative J. H. Frey. Although Local 1650 argued that termination was too severe a penalty, Hardison was found guilty of insubordination and discharged on April 2, 1969. Thereafter, both Local 1650 and District 142 attempted to contact Hardison about pursuing the matter further, but upon receiving no cooperation from Hardison, they dropped the case.

Hardison filed an unlawful employment practice charge with the Equal Employment Opportunity Commission which deferred to the Missouri Commission on Human Rights. On February 10, 1972, after all administrative procedures had been exhausted, Hardison filed suit against TWA and the three unions in United States District Court pursuant to 42 U.S.C. § 2000e--2. ⁴ He contended that all the defendants had practiced religious discrimination and, in addition, that the unions had violated their duty of fair representation. Following a trial to the court on primarily stipulated facts, judgment was entered for all defendants on the ground that each had attempted a reasonable accommodation of plaintiff's religious needs, as required by the controlling statutes and guidelines, and that undue hardships would have resulted from any greater efforts. Hardison v. Trans World Airlines, supra.

In essence, the decision below held that the valid seniority provisions of the unions' collective bargaining agreement with TWA did not permit further accommodation by any of the defendants. Hardison appeals, contending that the District Court's findings of reasonable accommodation and potential undue hardship were clearly erroneous. Separate briefs have been filed by Hardison, the unions, TWA, and by two amici curiae seeking reversal, the Equal Employment Opportunity Commission and COLPA (National Jewish Commission on Law and Public Affairs).

The issues before us include the alleged unconstitutionality of Title VII and the guidelines on religious discrimination, the extent of the unions' duty of fair representation under the circumstances presented, and whether the findings below that the defendants had fulfilled their respective duties to attempt a reasonable accommodation, short of undue hardship, of Hardison's religious practices were clearly erroneous.

I STATUTORY AND REGULATORY FRAMEWORK

Our review must necessarily begin with an examination of the controlling statutes and regulations.

The Civil Rights Act of 1964 specifically forbids employers from practicing religious discrimination in specifically enumerated ways.

42 U.S.C. § 2000e--2(a) provides in part:

It shall be an unlawful employment practice for an employer--

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; * * *

42 U.S.C. § 2000e--2(c) provides:

It shall be an unlawful employment practice for a labor organization--

(1) to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin;

(2) to limit, segregate, or classify its membership or applicants for membership, or to classify or fail or refuse to refer for employment any individual, in any way which would deprive or tend to deprive any individual of employment (3) to cause or attempt to cause an employer to discriminate against an individual in violation of this section.

opportunities, or would limit such employment opportunities or otherwise adversely affect his status as an employee or as an applicant for employment, because of such individual's race, color, religion, sex, or national origin; or

The EEOC is empowered to promulgate regulations in aid of the statute. 42 U.S.C. § 2000e--12(a)....