Cooper v. General Dynamics, Convair Aerospace Division, Ft. Worth Operation

• Decision Date: 09 June 1976
• Docket Number: AFL-CIO,No. 74-3151,74-3151
• Parties: 12 Fair Empl.Prac.Cas. 1549, 12 Empl. Prac. Dec. P 11,002, 78 Lab.Cas. P 11,462 Howard COOPER et al., Plaintiffs, Rita Kimbell and Howard T. Hopkins, Plaintiffs-Appellants, v. GENERAL DYNAMICS, CONVAIR AEROSPACE DIVISION, FORT WORTH OPERATION, et al., Defendants-Appellees, v. INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS,, et al., Defendants-Appellees-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 163

533 F.2d 163

12 Fair Empl.Prac.Cas. 1549,

12 Empl. Prac. Dec. P 11,002, 78 Lab.Cas. P 11,462

Howard COOPER et al., Plaintiffs, Rita Kimbell and Howard T. Hopkins, Plaintiffs-Appellants, v. GENERAL DYNAMICS, CONVAIR AEROSPACE DIVISION, FORT WORTH

OPERATION, et al., Defendants-Appellees, v. INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE

WORKERS, AFL-CIO, et al., Defendants-Appellees-Appellants.

No. 74-3151.

United States Court of Appeals, Fifth Circuit.

June 9, 1976.

David Watkins, Dallas, Tex., for plaintiffs-appellants.

Richard S. Cohen, EEOC, Charles L. Reischel, Washington, D. C., for E.E.O.C.

Louis A. Jacobs, Sp. Counsel to Atty. Gen., Columbus, Ohio, for Ohio Civil Rights Commission.

J. Olcott Phillips, Fort Worth, Tex., for Gen. Dynamics.

Otto B. Mullinax, L. N. D. Wells, Jr., Dallas, Tex., for Intl. Assoc. etc.

Sam Houston Clinton, Jr., Austin, Tex., for Dist. Lodge 776, and others.

Appeals from the United States District Court for the Northern District of Texas.

Before BROWN, Chief Judge, RIVES and GEE, Circuit Judges.

GEE, Circuit Judge:

Appellants work for appellee General Dynamics (Employer) on a federal enclave in the Fort Worth area, where union security agreements are permitted, ¹ and once belonged to defendant union and its defendant local (hereafter, collectively, the Union).

Appellant Kimbell's employment began in 1950, when she was already a Seventh Day Adventist. In the early 1960's, she withdrew from union membership on religious grounds. Appellant Hopkins' employment also dates from 1950, as does his union membership. He joined the Adventist Church in 1954 and withdrew from the union on religious grounds in 1967. In 1972, for the first time, Employer and Union incorporated a union security provision in their collective bargaining agreement, one of the "agency shop" variety. ²

Upon learning that financial support of the Union would be required of him by this new provision, each appellant protested to Employer and Union without success, commenced setting aside in trust the amount of such dues for contribution to some nonreligious charity if that were found acceptable, and went to court. After various vicissitudes, unnecessary to detail, the matter came to trial before our district court, where Employer and Union prevailed. ³

At trial the legal issues were three: the effect, if any, of the "religious accommodation" provisions of the amended Civil Rights Act on the application of the agency shop provision to appellants; Employer's right to recover from Union indemnity for attorney's fees incurred in resisting appellants' suit; and the effect of the Texas Right-to-Work law on the controversy. The last of these is not before us because appellants have not challenged on appeal the district court determination that state law lacked force on the federal enclave. As to the others, the court refused relief to appellants on the reasoning that their beliefs about supporting the Union financially, while both religious and sincerely held, were illogical thus retermitting the issue of whether the beliefs could be accommodated without undue hardship and required Union to indemnify Employer for its attorneys' fees. We reverse these holdings

and remand for decision of the accommodation issue.

The

Civil Rights Act and the National Labor Relations

Act: Relevant Legislative, Judicial and

Administrative Background

These pit the Union's entirely understandable desire that employees who receive the benefit of collectively-bargained wages and other benefits should bear a fair share of the cost of obtaining them against appellants' belief that supporting a union in any way is a Godless act which they should not be made to do to keep their jobs. Mercifully, in deciding this distressing issue, we are asked to write on small portions only of an already-crowded slate.

On the Union's side, there can be no doubt that the agency shop provision here in question is valid under the National Labor Relations Act,29 U.S.C. § 158 (1970), or that in the present state of constitutional law the first amendment does not shield appellants from discharge for refusing to abide by this provision. See Gray v. Gulf, M & O R.R., 429 F.2d 1064 (5th Cir. 1970), cert. denied, 400 U.S. 1001, 91 S.Ct. 461, 27 L.Ed.2d 451 (1971). As for appellants, we must take as given the district court's findings, based on evidence substantial and sufficient, that the Seventh Day Adventist Church maintains a long-established doctrine that joining or financially supporting a labor union is an act inconsistent with the commandment to love one's neighbor, the employer; that appellants are each members of that church; and that each holds with sincerity and as a matter of religious conviction that by supporting a union he places his soul in jeopardy. ⁴ The matter thus comes down to statutory construction: what has Congress said should be done about such painful collisions?

Section 703 of the Civil Rights Act of 1964 provides, in pertinent part:

(a) 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 . . . religion . .

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's . . . religion . . . .

(c) 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 . . . religion . . .

(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 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 . . . religion . . .

(3) to cause or attempt to cause an employer to discriminate against an individual in violation of this section.

42 U.S.C. § 2000e-2 (1970).

Initial EEOC guidelines promulgated on the subject, while recognizing a general obligation to accommodate employees' religious needs where this could be done without serious inconvenience, permitted an employer to adopt any "normal work week" and holiday schedule generally applicable to all employees, without regard to or accommodation of employees' religious observances, absent intent to discriminate on religious grounds. A subsequent and replacing regulation, however, adopted in 1967, took a firmer line: employers were required to make reasonable accommodation, short of undue hardship, to the religious practices of employees:

(b) The Commission believes that the duty not to discriminate on religious grounds, required by section 703(a)(1) of the Civil Rights Act of 1964, includes an obligation on the part of the employer to make reasonable accommodations to the religious needs of employees and prospective employees where such accommodations can be made without undue hardship on the conduct of the employer's business. Such undue hardship, for example, may exist where the employee's needed work cannot be performed by another employee of substantially similar qualifications during the period of absence of the Sabbath observer.

(c) Because of the particularly sensitive nature of discharging or refusing to hire an employee or applicant on account of his religious beliefs, the employer has the burden of proving that an undue hardship renders the required accommodations to the religious needs of the employee unreasonable.

Initial decisions by the courts tended toward a narrow interpretation of the statute and guidelines. In Dewey v. Reynolds Metals Co., 429 F.2d 324 (1970), a divided Sixth Circuit held it a sufficient accommodation of Sabbath observance to permit the affected employee to arrange his own replacement, despite his protest that Sunday work was so inherently sacrilegious that his inducing another to do it in his place would be sinful. That decision was affirmed by an equally divided Supreme Court. ⁵ Central to the reasoning of the circuit court and of several contemporaneous district court decisions ⁶ was a distinction between discrimination and a mere refusal to accommodate normal work rules of general application to the complainant's special religious claims. In the face of an ambiguous statute, of changing EEOC regulations, and of the notion intimidating at first blush that a broad construction might cripple employers in a cross fire of religious demands, the courts ⁷ by 1971 appeared to be settling into a view that the statute concerned itself primarily, if not solely, with Sabbath observance ⁸ and that general rules, applied without discriminatory intent, were acceptable even though their effect in practice might not always be impartial. In 1972, however, with unusual promptness and unanimity, Congress responded to this modest trend by making clear that this was not what it meant.

The 1972 Amendment Defining Religion: Limited to Sabbatarianism?

Acting in what can only be viewed as a direct response to the Sixth Circuit's expressed doubts in Dewey about the EEOC's power to adopt such regulations as its revised guidelines explicit reference to the decision and its affirmance by equal division is made in the legislative history, as is shown in our next footnote Congress added to the Civil Rights Act of 1964 a definition of religion. This "definition," set out below in the margin, exhibits the curious feature of defining as religious every aspect of observance, practice, and belief of that nature except whatever the...