Title: Kaiser Foundation Hospitals and Oregon
Federation of Nurses and Health Professionals, Local 5017
Dates of Hearing: January 6, 1995
Place of Hearing
Kaiser Town Hall Conference Center
Advocate for the Employer:
Eileen Drake, Esq.
Advocate for the Union:
Richard H. Schwarz
The parties to this dispute are the Oregon Federation of Nurses and Health Professionals, Local 5017, FNHP/AFT, AFL-CIO (Union or Federation) and Kaiser Foundation Hospitals and Kaiser Foundation Health Plan of the Northwest (Kaiser or Employer).
The arbitration was held pursuant to the provisions of the current collective bargaining agreement between the parties (Agreement) which applies to a bargaining unit made up of employees who work in several technical classifications. The controversy centers on the refusal by the Employer to terminate a certain Physical Therapy Assistant (Objecting Employee) as requested by the Union under the Union Security article of the Agreement.
The arbitration was held in Portland, Oregon, on January 6, 1995. Both parties participated; each had full opportunity to present evidence, call and cross-examine witnesses, and argue its case. By agreement between the parties, post-hearing briefs were to be submitted on February 10, 1995. Both parties met this deadline. The final brief was received on February 13, 1995.
The parties stipulated that the issue is:
Did the Employer violate the contract or
was the Employer appropriately applying the religious exemption provisions of
the contract when it did not terminate … [Objecting Employee] upon written
notice of the employee’s failure to pay the agency fees to the Union required
by the collective bargaining agreement? What is the remedy?
Relevant language from the collective bargaining agreement:
ARTICLE 3 — UNION SECURITY
All present employees shall, within thirty-one (31) days of the execution of
this Agreement, either become and remain members of the Union or pay regular
fees equal to Union membership fees, assessments and monthly dues.
Employees who are required to join the Union or pay regular fees and who fail to
do so shall, upon notice in writing from the Union to the Employer of such
failure, be terminated. However, the Employer shall have sixty (60) days to
recruit a replacement before any employee is terminated for failure to comply
with the provisions of this Article. In cases where termination of an employee
would result in a critical staffing situation, the sixty (60) day period may be
extended by mutual agreement between the parties. Such an extension will not be
unreasonably denied by the Union.
As provided by Federal Law, employees of health care institutions are eligible
to claim a religious exemption. Such cases shall be separately handled and the
employee shall make contributions to a tax-exempt, non-religious charitable
organization of his/her choice.
4 — GRIEVANCES AND ARBITRATION
The Employer and the Union agree that all disputes in connection with the
administration of this Agreement will be settled as hereinafter provided.…
4.3.2 *** The arbitrator shall issue a
decision within thirty (30) days following the close of the hearing or the
submission of briefs, whichever is later. The decision of the arbitrator shall
be in writing and set forth findings of fact, reasoning and conclusions on the
The decision or award of the arbitrator shall be final and binding upon the
Employer, the Union and the grievant to the extent permitted by and in
accordance with applicable law and this Agreement.
The arbitrator shall not, without written agreement of the parties, be
authorized to add to, detract from or in any way alter the provisions of the
Agreement. The arbitrator shall refrain from issuing any statements of opinion
or conclusions not essential to the determination of the issue(s) submitted.
The arbitrator’s pay and all incidental expenses of the arbitration shall be
borne equally by the parties. However, each party shall bear the expense of
presenting its own case.
No arbitration shall constitute a precedent for any purpose unless agreed to, in
writing, by the parties.
19 — MISCELLANEOUS
The Employer and the Union agree that each will fully comply with applicable
laws and regulations regarding discrimination and will not discriminate against
any employee because of such person’s race, religion, color, national origin,
ancestry, gender, age, marital status, physical or mental handicap, veteran
status, sexual orientation, or the membership in and/or activity on behalf of
20 — SEPERABILITY [sic]
If any provision of this Agreement is found to be in conflict with the laws of
the State of Oregon, the State of Washington, as may be applicable, the United
States of America, or are declared invalid by a tribunal of competent
jurisdiction, the remaining provisions of the Agreement shall remain in full
force and effect. In such cases, the parties agree to commence negotiations with
the intent of mutually agreeing to terms which would bring this Agreement into
compliance with the applicable case.
The Union is the bargaining representative for employees of the Employer in four separate bargaining units. There are two units of registered nurses, a unit of dental hygienists, and a technical unit consisting of multiple classifications (Tr. p. 54, l. 25-p. 55. l. 8).
In the fall of 1991, the Federation began its campaign to win the right to represent the technical bargaining unit (Tr. p. 136, l. 24); the election took place on April 28, 1992 (Tr. p. 137, ll. 10-11).
The dispute in this matter involves an employee who works for the Employer as a Physical Therapy Assistant (Tr. p. 18, l. 16).
This classification is one of sixteen included in the bargaining unit of technical employees that was certified by the National Labor Relations Board (NLRB) in Case No. 36-RC-5394 (Jt. Ex. 1, Article 1.1.1) pursuant to a secret ballot election conducted by the Board (Tr. p. 56, ll. 10-17).
During the election campaign, the Objecting Employee attended meetings called by the Union (Tr. p. 28, ll. 11-21; p. 109, ll. 2-13). When she expressed herself in these meetings, she expressed views in opposition to Union representation (Tr. p. 21, l. 19-p. 22, l. 5; p. 27, ll. 16-20; p. 108, l. 14-p. 109, l. 1; p. 109, ll. 19-24). She did not raise a claim for a religious exemption at the meetings with the Union (Tr. p. 110, ll. 7-10).
The Objecting Employee was one of a group of PTAs who met with the Employer to ask to have the classification of Physical Therapy Assistant removed from the prospective bargaining unit so that Union representation of the PTAs would not occur as the result of the election (Tr. p. 110, ll. 2-6).
Bargaining for the first collective bargaining agreement for the unit began sometime in August-September 1992 (Tr. p. 62, ll. 9-12). The negotiated Agreement was executed on June 2, 1993 (Jt. Ex. 1, Article 24).
By the time the contract was executed, approximately 70 percent of the bargaining unit had joined the Union voluntarily (Tr. p. 62, ll. 5-6; Jt. Ex. 3).
Subsequent to the negotiation, ratification, and execution of the Agreement, membership recruitment letters dated June 16, 1993, were sent to members of the bargaining unit who had not joined the Union (Tr. p. 64, ll. 16-18; Jt. Ex. 3).
The recruitment letter presented recipients with two choices: joining the Union and paying dues, or refraining from membership but paying an agency fee, which the letter called “a fair share bargaining fee…” (Jt. Ex. 3).
The recruitment letters were computer generated (Tr. p. 38, ll. 17-25). One was addressed to the Objecting Employee (Jt. Ex. 3). The Objecting Employee denies having received the communication (Tr. p. 22, ll. 6-17). No specific records were kept to establish that the letter actually was sent to the Objecting Employee or received by her (Tr. p. 42, ll. 5-15).
In Joint Exhibit 4, a handwritten note to the Union dated July 22, 1993, the Objecting Employee wrote of being “forced & blackmailed into the union.… I do not want to be a member of this corrupt organization.” The Objecting Employee asserted, “If Im [sic] forced (against my will) to pay I will only pay for administration duties under C.W.A, not the beck [sic] rights. Send me a payment schedule and a modified itemized statement.”
Union office staff assumed Joint Exhibit 4 had been written in response to Joint Exhibit 3 and made a notation to that effect in the files (Tr. p. 41, ll. 22-25; p. 42, ll. 11-15).
By certified letter dated September 15, 1993, the Union requested that the Objecting Employee pay dues of $34.84 or an agency fee of $29.43 on a monthly basis (Jt. Ex. 6).
The Objecting Employee responded on September 29, 1993, in a letter that requested “total exemption from mandatory membership” in the Union (Jt. Ex. 7). The letter stated,
of my membership or non-membership in a specific sectarian body, I personally
hold a firm belief that my affiliation with any labor organization that bargains
collectively and/or initiates strikes would be ethically and morally wrong.
The letter cited 42 U.S. Code 2000e (Title VII of the Civil Rights Act of 1964 as Amended in 1972) and 29 Code of Federal Regulations Chapter XIV, Part 1605 (Guidelines on Discrimination Because of Religion) as the basis for the claimed right of exemption. The letter included a photocopy of a check made out by the Objecting Employee to a tax-exempt nonreligious charity in the amount of $88.92, “the equivalent of fair-share dues and fees for July, August, and September.” The letter stated a willingness to provide evidence of “regular contributions in lieu of union dues and fees.”
The letter (Jt. Ex. 7) from the Objecting Employee was drafted with the assistance of the President of the Religious Liberty Association of the Northwest (RLANW) (Tr. p. 130, ll. 13-14).
By letter dated October 7, 1993, the Union advised the Objecting Employee that her request for exemption from the Union Security requirement was undergoing further consideration. The communication stated, “There is a possibility that you may be held liable for the agency fee back to July, 1993, and I would advise you that any contributions made to charitable organizations may not relieve you fo [sic] your obligation to pay the agency fee” (Jt. Ex. 9).
In a letter dated November 16, 1993, the RLANW wrote the Union on the Objecting Employee’s behalf. The letter reported that the intervention had been requested by the Objecting Employee (Jt. Ex. 9).
By certified letter dated December 21, 1993, the Union informed the Objecting Employee that it had denied her request for religious accommodation (Jt. Ex. 10).
By letter of January 5, 1994, the Union invoked Article 3.1.4 of the collective bargaining agreement (Jt. Ex. 12).
Joint Exhibit 12 is a letter from the Union. It asks the Employer to terminate the Objecting Employee and one other Physical Therapy Assistant. The letter states, “We believe that neither are [sic] entitled to accommodation for religious beliefs under applicable case law. However, both are at this time unwilling to comply with the agency fee requirement.”
By letter of May 12, 1994, the Union informed the Employer that it had granted the other PTA a religious exemption from the requirement for financial contribution to the Union (Jt. Ex. 16).
On August 8, 1994, the Union filed the grievance that has led to this arbitration (Jt. Ex. 2a). The grievance charged that the Employer had violated Article 3 of the Agreement when it failed to terminate the Objecting Employee for failure to comply with the agency fee requirement.
The Employer requested that all steps of the grievance procedure be waived and that the dispute move directly to arbitration (Jt. Ex. 2b).
The arbitration hearing was held on Friday, January 6, 1995.
One week before the hearing, the Objecting Employee filed a complaint with the Civil Rights Division of the Oregon Bureau of Labor and Industries (Tr. p. 119, ll. 9-25).
The Union constitution has no provision allowing the organization to discipline members who do not honor a strike or participate in picketing (Tr. p. 146, l. 3-11).
POSITIONS OF THE PARTIES
of the Union
The Union recognizes that the phrase “Federal Law” in Article 3.1.6 refers to Section 19 of the National Labor Relations Act (NLRA, 29 USC, §169) and notes that the Objecting Employee asserts that the reference also includes Title VII of the Civil Rights Act of 1964. The collective bargaining agreement and federal laws provide for religious exemption from the membership dues or agency fees required by Article 3.1.1, but neither the laws nor the agreement “compel granting the exemption simply on the utterance by an individual of the phrase that she or he has religious beliefs” (Br. p. 11).
While the EEOC Guidelines define “religion” broadly and do not require membership in a formal religion, some element of religion is required. The Objecting Employee in this dispute has no religion “and freely admits so” (Br. p. 15).
The Objecting Employee in this dispute has “not expressed any religious beliefs” (Br. p. 13); her objection has been to the Union itself. She attended Union meetings; she opposed selection of the Union as the bargaining representative, and viewed it as a third party intervening in her relationship with her employer; she petitioned her employer to remove her job classification from the bargaining unit so she could avoid representation. The arguments upon which she bases her objection include identification with her Employer’s policies and her obligation to her occupational “oath” to care for sick people, neither of which are religious in nature. The Objecting Employee is anti-union. She seeks the refuge of the religious exemption “as a means of Union avoidance” (Br. p. 15).
The Union has accommodated those with a conscientious objection to payments to the Union, but notes that termination of such persons can lawfully occur if the individual refuses to contribute to a charitable organization. The Objecting Employee in this dispute “has failed to comply with the contract’s requirements to contribute to a nonlabor, nonreligious tax-exempt charitable organization” (Br. p. 16).
The Employer notes, “There are two bases under the law for an employee [in the private sector] to claim a religious exemption from a union security clause” (Br. p. 7). The Objecting Employee does not qualify for an exemption under Section 19 of the NLRA, but she does under Title VII which requires “reasonable accommodation of an employee’s religious beliefs” (Br. p. 8). Reasonable accommodation includes the requirement to provide exemption from the union security provisions of a collective bargaining agreement. The Ninth Circuit, the federal court of appeals whose jurisdiction includes Oregon, has ruled that Title VII rights exist “independent of … [a] collective bargaining agreement and cannot be bargained away…”(Br. p. 8).
It is the view of the Employer that the Arbitrator has no authority under contract or statute “to decide whether …[the Objecting Employee] has a right to reasonable accommodation under Title VII” (Br. p. 8). Article 3.1.6 is the only issue before the Arbitrator; he is not to interpret and apply Article 19.5. The Objecting Employee has a right to pursue civil rights claims through avenues other than the grievance procedure.
Past interpretation and application of Article 3.1.6 show that the parties have not limited the section to matters covered by Section 19 of the NLRA. They applied Article 3.1.6 to an employee—a fellow PTA—who cited “a classic Title VII claim” (Br. p. 9).
In the Employer’s view, the Union position consists of five parts: the Objecting Employee’s request for a religious exemption is not justified because (a) she voiced opposition to the Union prior to the election, (b) her original objection did not claim a religious exemption, (c) she did not pay the equivalent of the agency fee to a charity, (d) she did not provide the Union with enough information, and (e) her claim is not based on a religious belief.
The Employer responds that points (a) and (b) in the listed arguments were also true of an employee in the bargaining unit (the other PTA) to whom the Union did extend a religious exemption. The Employer notes the Employee did make payment to a non-religious charity (covering three month’s “dues”) and stopped only “because she received a letter from the Union which she interpreted as telling her it would be futile to make the alternative payments” (Br. p. 11). Contrary to the Union argument that the Employee did not provide enough information to justify a religious exemption, both the Objecting Employee and the RLANW provided information in support of the claim. The Union never asked for additional information nor did they seek to meet with her to discuss her beliefs. The Employer contends that since the Union failed to notify the Objecting Employee that she needed to provide more information, it “should be foreclosed from this argument” (Br. p. 12).
The Employer contends, “The only real issue in this grievance is whether … [the Objecting Employee’s] sincerely held ‘moral and ethical beliefs about what is right and wrong’ qualify for exemption under Article 3.1.6” (Br. p. 12). According to the Employer, the evidence shows that the Objecting Employee’s “beliefs about joining or financially supporting a union stem from her personal belief in a supreme being who guides her life and beliefs” (Br. p. 13). The only difference between the Objecting Employee who was denied and the employee who was granted a religious exemption was that the successful person belonged to a church while the other did not.
The Employer describes the central issue in this case as being the question, “Is a belief based on sincerely held moral and ethical beliefs of what is right and wrong a ‘religious’ belief, even though not based on the tenets of a religious organization or personal interpretations of scripture” (Br. pp. 13-4)? The Employer contends that such a question is a Title VII matter, and, as such, is beyond the Arbitrator’s authority in this case.
The Employer suggests that since the Union bears the burden of proving a violation of the Agreement, the Arbitrator should find that the Union did not meet the burden of proving that the Employer violated the Agreement. In the Employer’s view, the Union failed to show that the Objecting Employee’s objection was based on “general anti-union sentiment,” and, since the Union has in the past viewed Article 3.1.6 as applying to both Section 19 and Title VII exemptions, “it cannot meet its burden of proving a contract violation because Title VII determinations … are not subject to arbitration.”
The Employer also suggests that the case might be resolved by determining that the Employer had a “reasonable basis” for a good faith decision that the Objecting Employee qualified for a religious exemption.
The Objecting Employee’s Attendance at Union Sponsored Meetings
The Union argues that the Objecting Employee attended “Union meetings, which her beliefs did not preclude” (Br. p. 13). While the totality of the Objecting Employee’s conduct including her oral and written statements regarding this controversy has significance (and will be addressed in detail below), I do not find that her attendance at campaign meetings before the election and informational meetings after the election to be of significance. Whatever the basis for her opposition to the Union, there is no doubt that the Objecting Employee did not want the Union to win. Although the record is unclear whether certain union sponsored meetings took place before or after the election, the record is clear about the Objecting Employee’s motives. She attended union sponsored meetings prior to the election to oppose representation. Such activity seems more an exercise of the rights of an employee under Section 7 of the NLRA than it is participation in union activities. Her attendance at meetings after the election was “defensive” (Tr. p. 151, l. 24-152, l. 7). The record does not support a conclusion that her attendance at union sponsored meetings constituted participation in union activities.
The Objecting Employee’s Failure to Continue Contributions to a Charity
In its brief, the Union notes that a person who has been granted a religious exemption “may be terminated for … refusing to contribute to a tax-exempt, non-religious charitable organization” (p. 11). The Union charges that after an initial payment to a charity, the Objecting Employee “failed to comply with the contract’s requirement” to contribute to a charity (Br. p. 16).
Given the facts of this case, I cannot conclude that the Objecting Employee’s failure to continue payment to a charity constitutes a failure to abide by the contract, a failing for which termination would be justified. In the first place, the payment was a unilateral decision of the Objecting Employee; it was not made pursuant to a grant of a religious exemption. More important, the payment was discontinued after the Objecting Employee was informed by the Union that “any contributions made to charitable organizations may not relieve you fo [sic] of your obligation to pay the agency fee” (Jt. Ex. 8). Throughout this controversy, the Objecting Employee has been in limbo regarding whether her obligation under Article 3 of the Agreement was to pay a fee to the Union or to make a charitable contribution. Given the Union warning about potential liability for the agency fee, the Objecting Employee decided to wait and see (Tr. p. 134, ll. 3-11).
The Scope of
the Arbitrator’s Authority in this Case
Both parties agree that a religious exemption to a union security clause is available under Section 19 of the National Labor Relations Act and under Title VII. Both parties—and the RLANW—agree that the Objecting Employee does not qualify for a Section 19 exemption. They do disagree about her eligibility for an exemption under Title VII.
In the Employer’s view:
arbitrator has no jurisdiction under either the contract … or civil rights law
… to decide whether or not … [the Objecting Employee] has a right to
reasonable accommodation under Title VII. It was undisputed at the hearing that
the only issue before the arbitrator was whether Kaiser had violated the union
security clause of the contract, Article 3.1.6, and that the arbitrator was not
being called upon to interpret and apply Article 19, Section 19.5, the
non-discrimination provision. It was also undisputed that [the Objecting
Employee] did not waive her right to have any civil rights claim under Title VII
decided by the appropriate administrative agency or court (Br. pp. 8-9).
The brief brings to my attention the text of Article 4.3.4 of the Agreement, which states in relevant part:
arbitrator shall refrain from issuing any statements of opinion or conclusions
not essential to the determination of the issue(s) submitted.
The brief then states what it deems to be the core issue of the dispute, a matter that, in the Employer’s view, constitutes this Arbitrator’s dilemma:
belief based on sincerely held moral and ethical beliefs of what is right and
wrong a “religious” belief, even though not based on the tenets of a
religious organization or personal interpretations of scripture? This, though is
a Title VII question and, therefore, is precisely the question the Arbitrator
cannot decide in this case (pp. 13-14).
The Matter of Waiver of The Objecting Employee’s Statutory Rights
The Employer’s assertion that there is no waiver by the Objecting Employee of her right to pursue a claim under Title VII is, perhaps, the easiest matter for me to resolve. In the first place, the Objecting Employee is not a party to this arbitration; the Union and the Employer are. Moreover, the Objecting Employee is not a grievant in this matter. The Union is the grieving party, and the grievance claims that the Employer has violated a provision of the Agreement that provides a benefit to the organization. Since the Objecting Employee was neither grievant nor party, I cannot see how any aspect of this arbitration can be considered to be a waiver by her of any statutory right. Moreover, even if this were not so, my understanding of the law is that Title VII rights extend to individuals and “cannot be waived by the terms of a collective bargaining agreement.” This point is also made by the Employer: any obligation on the part of an employer and a union under Title VII to make reasonable accommodation for an employee’s religious beliefs “exists independent of any provision of the collective bargaining agreement and cannot be bargained away by the employee [sic] and the union” (Br. p. 8).
The Assertion That Scope Is Limited to Article 3
While I concur with the Employer’s argument that I have no authority to rule on the Objecting Employee’s rights under Title VII, I do not agree that I am limited in my considerations to Article 3.1.6, that Article 19.5 of the Agreement is beyond my scope, or that I am prohibited by the terms of Article 4.3.4 from considering or commenting on Title VII matters.
The assertion that my authority does not extend to Article 19 of the Agreement was made by the Employer during opening statement. It was based on the fact that in the original statement of the grievance (Jt. Ex. 2a), the Union had cited Article 3 as the provision of the Agreement that had been violated (Tr. p. 14, ll. 1-18).  The Employer’s observation about the grievance is correct, but my authority in this matter is defined not by the grievance, but by the statement of the issue as jointly framed by the Union and the Employer and submitted by them to me at the arbitration. That joint statement directs me to consider “the religious exemption provisions of the contract….” The word “provisions” is in the plural.
By express language, Article 3.1.6 allows for “a religious exemption.” By implication, Article 19.5.1 of the Agreement also provides a religious exemption, since by its express language it requires the Employer and the Union to “comply with applicable laws and regulations regarding discrimination.…” Title VII and the EEOC Guidelines are just such “applicable laws and regulations,” and by the language of 19.5.1 are incorporated into the collective bargaining agreement. 
Article 3.1.6 clearly includes Section 19 of the NLRA. The Employer notes that—at least in the jurisdiction of the Ninth Circuit Court of Appeals (which includes Oregon)—“Independent of Section 19 [of the National Labor Relations Act], an employee may also claim entitlement to exemption from the union security clause under the religious accommodation provisions of Title VII of the Civil Rights Act of 1964 … or the parallel state law provision in ORS Chapter 650. Under Title VII, both the … [employer] and the union must make reasonable accommodation of an employee’s religious beliefs. This obligation exists independent of any provision of the collective bargaining agreement and cannot be bargained away by the employee and the union” (Br. pp. 7-8).
The Employer also argues that Title VII has been incorporated into Article 3.1.6 by past practice. The Employer notes that in a prior application of the provision, the Union and Kaiser honored a claim for religious exemption on Title VII considerations. The Employer states that by this precedent the parties have shown that they “have not limited the application of Article 3.1.6 to situations under Section 19 of the NLRA” (Br. p. 9).
In any case, the Agreement provides an employee two separate contractual rights to a religious exemption: the right provided by Section 19 of the NLRA and the right provided in Title VII.
Scope as Related to Consideration of Title VII
Entirely separate from any determination I may make whether management has violated the contractual rights of the Union under the provisions of Article 3.1.4 is the question of rights the Objecting Employee may have under Title VII. While I have “no jurisdiction under either the contract … or civil rights law … to decide whether or not … [the Objecting Employee] has a right to reasonable accommodation under Title VII” (Er. Br. p. 8), I do have jurisdiction to decide whether or not the Employer violated the collective bargaining agreement by its refusal to honor the Union request to terminate. Since the Employer defends its refusal to terminate the Objecting Employee on the grounds that she was entitled to a religious exemption under Title VII (Br. pp. 7 ff., and Tr. p. 100, ll. 18-22), I am called upon to test the Employer’s action by Title VII standards.
In any event, the potential conflict between the Agreement and the Objecting Employee’s statutory rights lies not in determining whether or not the Agreement was violated, but in the remedy that is fashioned if violation is found. Even if the Employer is found to have violated its contractual obligation to the Union, the remedy cannot negate the Objecting Employee’s rights under Title VII. Moreover, the Employer should not be required by an arbitrator’s order to take action that could increase its liability under civil rights law.
Analysis of The Objecting Employee’s Expressed Views
(1) The Standard
Even though all parties agree that the Objecting Employee does not qualify for a religious exemption under Section 19 of the NLRA, it is instructive to compare standards. The standards that justify a religious exemption can be placed on a continuum. While Section 19 is the most limited in application, it is the most specific. To merit religious accommodation under the NLRA, one must be a person 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 joining or financially supporting labor organizations.…”
Title VII is less limited. It “includes all aspects of religious observance and practice, as well as belief…” (Section 701 (j)). In Machinists v. Boeing the Ninth District Court of Appeals notes that “in contrast” to Section 19 of the NLRA, “An employee who sincerely held religious beliefs opposing unions could be relieved from paying dues under Title VII, even if he or she was not a member of an organized religious group that opposes unions” (126 LRRM 3305).
Title VII is also less specific. Under EEOC interpretation, the exemption is available for beliefs and practices that are indisputably religious as well as for “moral or ethical beliefs as to what is right or wrong which are sincerely held with the strength of traditional religious views” (Guidelines, § 1605.1).
The Employer argues that the Objecting Employee’s refusal to pay dues or an agency fee to the Union is based on sincerely held moral and ethical views which, though not based on the holdings of a religious organization or interpretation of scripture, are equivalent to religion and merit the religious exemption provided for in Title VII. In support of this view, the Employer calls the Arbitrator’s attention to one definition of “religion” found in a major dictionary, namely, “a point or matter of ethics or conscience, to make a religion of fighting prejudice” (Er. Ex. 3).
The Union argues that the Objecting Employee’s position is based on a hostility to unions. In the Union’s view, such a foundation for refusal to pay dues or an agency fee does not merit the religious exemption even though such opposition may be expressed with religious fervor.
While there is little problem in determining whether a person is eligible for an exemption under Section 19 of the NLRA, and only a slightly greater problem in determining whether a practice or belief is religious, there is significant difficulty when one tries to assess a claim for religious exemption on the basis of “moral or ethical beliefs.”
In Machinists v. Boeing, the 9th Circuit cites a prior decision which provides a helpful guidance. “The substituted charity accommodation allows the plaintiffs to work without violating their religious beliefs…” (126 LRRM 33040). The RLANW asserted a somewhat similar standard when it wrote the Union that the EEOC Guidelines “require labor organizations to reasonably accommodate persons who for reasons of religious belief and practice cannot belong to or financially support a labor organization by exempting such from membership…” (Jt. Ex. 9, p. 2). The employee in Machinists was of the belief that “union membership and support of labor organizations are contrary to her religious convictions” (126 LRRM 3303). (All italics in this paragraph have been added.)
In each instance the guidance is the same: religious accommodation is merited when membership in or financial support for a union would always violate the employee’s religious beliefs and practices—at least so long as those beliefs are held and those practices are followed by that employee.
(2) The Objecting Employee’s Opposition
There is no dispute over the fact that the Objecting Employee was opposed to having her position included in a bargaining unit. She argued against the Union’s position during the election campaign and she sought to have her classification removed from the unit. Once the majority of the bargaining unit had opted for collective bargaining and had selected the Union as the unit’s exclusive representative, her opposition continued.
Her first formal communication to the Union was the following hand-written note:
feel I was forced & blackmailed into the union. My right to free choice was
violated. I do not want to be a member of this corrupt organization. If I am
forced (against my will) to pay I will only pay for administration duties under
the C.W.A, not the beck [sic] rights.
Send me a payment schedule and a modified itemized statement (Jt. Ex. 4).
In her testimony, the Objecting Employee indicated that the document reflected anger, not her true view of the Union (Tr. p. 23. ll. 2-6 and p. 26, ll. 1-2). Even so, the note indicates the intensity of her feelings about the Union at least at the time it was written.
In a document signed by the Objecting Employee, but prepared with the assistance of the President of the Religious Liberty Association of the Northwest (Tr. p. 130, ll. 13-14), one finds the following statement. “Regardless of my membership or non-membership in a specific sectarian body, I personally hold a firm belief that my affiliation with any labor organization that bargains collectively and/or originates strikes would be ethically and morally wrong” (Jt. Ex. 7). In her testimony, the Objecting Employee insisted that she authored the above cited passage (Tr. p. 130, l. 15-p. 131, p. 9). However, the Objecting Employee’s testimony does not show the same insight into nuances of law. The validity of the passage is not undermined by the likelihood that the Objecting Employee had sophisticated guidance in authorship; however, in her testimony—given without opportunity for guidance—the Objecting Employee’s responses reveal a more situational basis for her opposition to this Union. For example, in contrast to her assertion in the letter that she had ethical and moral objections to “any labor organization that bargains collectively,” she testified that she and certain of her fellow PTAs “really didn’t see in our working capacity the need for a union at that time” (Tr. p. 109, ll. 23-24). (The emphasis is added.)
Study of the reasons given by the Objecting Employee lead to the conclusion that her objections do not apply in every instance, but only to the specific circumstances surrounding this Union, this Employer, and the specific set of circumstances she faced in this job setting. Although her views were strongly held, the record indicates they were situational, that is, ”produced or conditioned by a specific set of social or interpersonal circumstances.” (Webster’s Third New International Dictionary, Merriam-Webster Inc., Springfield, Mass., 1993).
Putting aside for the moment the Objecting Employee’s earlier expressions about the Union that reflected a strong and consistent anti-union attitude and evaluating her position solely from those statements that explain her claim for a religious exemption, one cannot shake the conclusion that her position is situational. Her testimony indicates that rather than opposition to collective bargaining in every instance, her primary opposition is to membership in or support for this Union, given her work responsibilities in this job, the circumstances that exist (and have existed) in this employment setting—including her satisfaction the wages and benefits this Employer has granted— as well as her satisfaction with individual representation, and her respect for this Employer. Even when one focuses on strike action, the one specific consistently identified by the Objecting Employee as being ethically and morally objectionable to her, that objection has particular application to this Employer.
I find from the record that the Objecting Employee’s opposition to collective
bargaining was situational, I conclude that the Employer was not justified in
refusing the Union’s request made with respect to Article 3.1.4 of the
The Objecting Employee was consistent in her opposition to strike action. Whatever conclusions I have drawn about the situational nature of her opinions about collective bargaining and the Union, I have no doubts about the consistency of her opposition to participating in a strike. Is that view sufficient to justify a religious exemption, and, as a consequence, the Employer’s refusal to honor the Union demand?
While it is undisputed that this Union does not have authority to discipline its members, a union can have provisions in its constitution and by-laws authorizing it to discipline members for refusal to support a union sanctioned strike. However, even when such provisions exist, the authority to discipline can only be applied to those workers who have voluntarily joined the union and assumed full responsibilities of membership.
I note that in contrast to the statement in her letter that the Objecting Employee believes that her “affiliation with any labor organization that … initiates strikes would be ethically and morally wrong” (Jt. Ex. 7), the Objecting Employee’s testimony centers on her objection to being asked or ordered to strike. (See footnote 14.)
I do not think that unwillingness to participate in a strike constitutes sufficient grounds for a religious exemption from the obligations of a union security clause; however, I do not rule on this matter. Assuming that such unwillingness does meet the test of “religion” as that term in defined in the EEOC Guidelines, I note that the obligation under Title VII is to provide reasonable accommodation to an employee’s religious beliefs. The 9th Circuit seems to say that an accommodation occurs when employees “can work without violating their religious beliefs.” While exemption from membership or financial support of a union is one means of religious accommodation, there is no indication that it is the only possible reasonable accommodation for sincerely held beliefs. An accommodation that addresses the Objecting Employee’s concern about strike action is contained within the agency fee option in Article 3.1.1 of the Agreement.
record in this case clearly establishes that this Objecting Employee is opposed
to engaging in strike activity, that this belief is sincerely held, and that so
long as she holds this view, the likelihood is that this Objecting Employee will
conduct herself according to this belief. However, her right to refuse to
participate in a strike would exist were she to pay agency fees in lieu of
membership dues. The Objecting Employee can continue to work without violation
of her belief. I conclude from this that
the Employer was not justified in refusing to honor the request of the Union
made pursuant to Article 3.1.4 of the Agreement.
Exemption Granted, One Denied—Comparisons and Contrasts
The Employer notes that two PTAs each sought a religious exemption from the Union. One request was honored; the other was denied. The Employer argues that the facts surrounding the two cases were sufficiently similar that the Union’s refusal to grant the Objecting Employee’s request was not justified. The Employer points out that both PTAs were openly hostile to the Union; their original objections to representation came from concerns other than religion; while their status was in limbo, neither made payments to a charity (Br. pp. 10-11). The Employer argues, “The only real difference between … [the successful petitioner’s] exemption claim and … [that of the Objecting Employee] is how the two employee’s [sic] describe the nature of their beliefs” (Br. p. 12).
My assessment of the merits of each person’s petition for a religious exemption must be made on the totality of that person’s conduct, attitude, and manifested belief. While I agree that there are certain parallels between the facts surrounding the two PTAs, I discern a substantial difference as well.
Even though the PTA who was granted a religious exemption first manifested her opposition to the Union on anti-union rather than on religious grounds, she ultimately presented a justification for her “reservations regarding union membership” that were deemed by her Pastor to be “well founded scripturally” (Er. Ex. 1, pg. 2). In her communication to the Union, she asserted, “Based on my understanding of the Scriptures, I hold sincere religious convictions that I should not join or financially support a Labor union. These convictions are not based on mere feelings, but upon principles I have found in the Bible.” (Er. Ex. 1, p. 1). “For me, union membership would impinge on my Christian belief and practice” (Un. Ex. 2, p. 2). According to the information available in the record before me, once raised, her substantiation of religious belief was consistent. To use the terminology of the EEOC Guidelines, there was no “issue” but that her petition was based on religious belief. Given this, the character of her prior opposition is immaterial.
The Objecting Employee’s ultimate position is much more problematic. As I understand the record (see prior section), the Objecting Employee’s opposition to the Union was framed in large degree by the specifics of this employment setting. Therefore, the anti-union character of her early manifestation of opposition to the Union, to representation, and to collective bargaining is material. I do not hold that religious exemption is reserved only for those holding benign opinions about collective bargaining. A person who has a bona fide right to a religious exemption may also hold a deep hostility to unions and to collective bargaining. The question is whether under the Agreement the Employer can appropriately refuse to honor a request made pursuant to Article 3.1.4 when the employee in question cites a right to a religious exemption, but (except for her opposition to strike action and situational references to principle) the consistent basis for opposition is an anti-union attitude held with religious intensity.
In accordance with the evidence presented in the arbitration hearing and the reasoning, considerations, findings, and conclusions presented in the foregoing discussion, I find that the Employer violated the contract when it did not terminate employee … [Objecting Employee] upon written notice of the employee’s failure to pay the agency fees to the Union required by the collective bargaining agreement. Therefore, the grievance is sustained.
In remedy of this violation, (1) the Employer shall honor the request made by the Union in its letter of January 5, 1994 (Jt. Ex. 12), that it terminate the Objecting Employee in accordance with Article 3.1.4 of the collective bargaining agreement, and (2) the Employer shall pay to the Union the amount of the Agency fee due from the Objecting Employee to the Union from January 5, 1994, the time of the request for termination (Jt. 12), until the Objecting Employee is terminated in accordance with Article 3.1.4, or the alternative delineated in the next section of this award is agreed to and becomes effective.
To preserve the Objecting Employee’s rights to process a civil rights claim, part (1) of the above remedy may be deferred at the option of the Employer, provided the terms now to be specified are agreed to and maintained by the Objecting Employee. The Objecting Employee may, in her sole discretion, agree to or decline these terms. If the Objecting Employee agrees to the terms and a suspension of the above order to terminate occurs, the undersigned Arbitrator shall retain jurisdiction until a determination on the Title VII matter is achieved, or the Objecting Employee’s civil rights claim is discontinued or abandoned and the orders stated in the Remedy are complied with.
1. The Objecting Employee shall make payments to an escrow fund jointly administered by the Union and the Employer;
2. The Objecting Employee’s obligation to pay into this fund shall be both retroactive and prospective.
(a). The Objecting Employee’s retroactive obligation shall be for the period July 5, 1993, to the day when the Objecting Employee agrees to and implements the terms herein set forth. It is the intent of this provision regarding retroactive payment that the Objecting Employee shall pay into the fund the exact amount that she would have paid to the Union as an Agency fee for the corresponding period of time. This retroactive obligation may be met through an installment schedule agreed upon by the Objecting Employee, the Employer and the Union. If these three parties are unable to agree, the installment schedule shall be determined by the Arbitrator.
(b). The Objecting Employee’s prospective obligation is as follows: As a necessary part of the Objecting Employee’s agreement to the terms and conditions under which the Employer may defer the order to terminate, the Objecting Employee shall execute a payroll deduction form authorizing a monthly deduction from her compensation of an amount equal to the appropriate agency fee for her pay and classification. The payroll deduction shall be effective as of the day upon which the Objecting Employee agrees to the terms herein set forth. This deduction shall be deposited into the fund described in 1 above.
(c). The authority of the Employer to defer execution of this Arbitrator’s order shall cease if the Objecting Employee at any time discontinues or otherwise defaults on the above described payment procedure.
3. The suspension of the order to terminate may continue only while an appropriate civil rights claim on this matter is pending before a body of competent jurisdiction, and only so long as the Objecting Employee meets all her obligations to pursue that claim, and does so in a timely manner.
4. If a body of competent jurisdiction determines that the Objecting Employee is entitled to a religious accommodation under state or federal civil rights statutes,
(a). the Arbitrator’s order to terminate shall be remanded to him for modification consistent with the civil rights determination;
(b). the Objecting Employee shall be reimbursed from the fund in the amount of eighty-eight dollars and twenty-nine cents ($88.29), which is the amount she paid to a non-religious charity (Jt. 7);
(c). the remainder of the fund shall be paid to a tax-exempt, non-religious charitable organization of the Objecting Employee’s choice, and the account shall be closed.
5. Upon the disposition of the Objecting Employee’s civil rights claim on any basis other than that she is entitled to a religious accommodation, or if by action of the Objecting Employee or her representatives the claim is withdrawn or is allowed to lapse, or for any other reason the claim is discontinued, the fund shall be closed and the money therein distributed in the following manner:
(a). the Employer shall be reimbursed for all money paid to the Union under the above Remedy;
(b). all remaining funds shall be turned over to the Union to become part of the income it receives from agency fee payments under the Agreement and shall become available for its use as is any other income from agency fees.
If the Objecting Employee’s civil rights claim is closed or abandoned without a determination by a body of appropriate authority that the Objecting Employee is entitled to a religious accommodation under civil rights laws, and the Objecting Employee is at that time willing to meet obligations to the Union under the Union Security provisions of the Agreement, the Arbitrator’s remedy shall be referred to him for possible modification.
Respectfully submitted on this, the 14th day of March, 1995,
1. On January 6, 1995, the undersigned Arbitrator conducted a hearing in a dispute between the Oregon Federation of Nurses and Health Professionals, Local 5017, FNHP/AFT, AFL-CIO and the Kaiser Foundation Hospitals and Kaiser Foundation Health Plan of the Northwest. The question in that arbitration was
the Employer violate the contract or was the Employer appropriately applying the
religious exemption provisions of the contract when it did not terminate
employee … [Objecting Employee] upon written notice of the employee’s
failure to pay the agency fees to the Union required by the collective
bargaining agreement? What is the remedy?
2. On March 14, 1995, I issued an Opinion and Award in this matter. The Opinion reviewed key points of the evidence presented in the hearing, summarized the arguments made by the parties at the hearing and in post-hearing briefs, and presented the reasoning, considerations, and findings which led to conclusions that were presented in the Award. Based on the arbitration record, I found, “the Employer violated the contract when it did not terminate … [Objecting Employee] upon written notice of the employee’s failure to pay the agency fees to the Union required by the collective bargaining agreement.” As a result of this determination, I sustained the grievance.
3. In remedy of this violation of the collective bargaining agreement, I issued a two part order. Part one ordered the Employer to “honor the request made by the Union… that it terminate the Employee in accordance with Article 3.1.4 of the collective bargaining agreement.” Part two placed upon the Employer certain financial obligations to compensate the Union for losses from uncollected agency fees due it in this dispute.
4. The dispute before me in January involved an employee’s claim of rights under Title VII of the Civil Rights Act of 1964 as Amended in 1972. I found that I lacked authority to determine the merits of this claim. Therefore, the Award authorized the Employer to defer implementation of the part one of the Arbitrator’s order under certain specified conditions. The Award further provided that if the Employer exercised its ability to defer, I would “retain jurisdiction [as Arbitrator] until a determination on the Title VII matter is achieved, or the Employee’s civil rights claim is discontinued or abandoned and the orders stated in the Remedy are complied with.”
5. In mid-October, 1995, I received a telephone message from … a staff representative of Oregon Federation of Nurses, Local 5017. I returned the call and was informed of the Union’s view that the conditions established in my Award for deferral of termination had not been met. The Union requested that I make a determination under my retained jurisdiction. I agreed to a meeting with both parties in attendance to address this request.
6. The session took place on November 2, 1995, commencing shortly after 10:00 a.m. Both parties were represented: the Employer by Eileen Drake, Esq., Cheryl Harmon and James Pruitt; the Union by Helen Moss.
7. The parties stipulated to certain events that took place subsequent to and as a result of the aforementioned Opinion and Award. The summary included the following points:
· Shortly after receipt of the Opinion and Award, the parties met with the affected employee and an advisor who accompanied her. They provided them with a copy of the Opinion and Award and the briefs that been submitted in the case. An analysis of the Award was also presented, but the employee was advised to read the documents, to consult with her own advisers, and to come to her own conclusions.
· The employee was given until April 26, 1995, to make her decision and communicate it to the Employer. On April 26, 1995, the employee informed Ms. Drake and Ms. Harmon that she had decided to drop her Title VII claim and that she would comply with the agency fee requirements of the collective bargaining agreement.
· In a subsequent meeting between the Employer and the Union, an agreement was reached that relieved the employee of retroactive obligations imposed on her by the Award. It was agreed that the Employer would pay the amounts due the Union for the period January 1994 to April 1995 and that the employee’s financial obligations to the Union would begin as of April 1995.
· The employee was informed of the means whereby she could meet the obligation she had agreed to on April 26, 1995. Since that time, she has been regularly billed by the Union for the amounts the Union believes to be due them. No payment has been received. By the Union’s account, the current amount for which the employee is in arrears is $186.57.
· The Union reports that the employee has claimed that the amount for which she has been billed is not the correct Agency fee amount.
8. There is no indication in the record that the employee has sought to appeal the amount for which she has been billed. Her actions in this regard have been to withhold payment and to assert her view that the amount for which she was billed was not the correct agency fee amount.
9. The parties stipulate that the Employer has met the financial obligations it assumed in this matter with regard to payment to the Union of the employee’s agency fees for the period January 1994 until April 1995.
The Union’s request that the Arbitrator exercise his retained jurisdiction is granted.
Based on the information stipulated to by the parties in the joint session and summarized above, I must conclude that the conditions set in the aforementioned Award of March 14, 1995, for deferral of part one of the Arbitrator’s remedy have not been met. Therefore, the Union’s request that the Arbitrator’s remedy of March 14, 1995, be executed is agreed to. Implementation of part one of the remedy in the Award of March 14, 1995, is hereby ordered.
to the Parties:
As I reflect on the entire record before me in this dispute, I am persuaded that neither party desires that this matter end with the termination of the employee. It is the employee herself who controls the matter.
I recommend to the parties that they communicate to the employee the implications of the above stated conclusion and order and provide her with a final opportunity to come into compliance with her obligations under Article 3.1.4 of the collective bargaining agreement that covers her, obligations to which she personally committed on April 26, 1995.
I ask the parties to communicate to the employee on my behalf that if her failure to pay is based in good faith on the view that the amount for which she has been billed is incorrect, she consider as an option that she meet her obligation as billed, but seek adjustment of the amount by means of a formal appeal rather than through non-compliance with a condition of employment.
Respectfully submitted on this, the 2nd day of November, 1995.
 The current collective bargaining agreement is the second since certification of the bargaining unit. The parties stipulated that in both the original and the second agreement, the language of Article 3 (Union Security) and Article 4 (Grievances and Arbitration) is identical. The dispute before me arose under the first agreement, which became Joint Exhibit 1 in this arbitration and is the document to which all references are made.
 The position seems to be called both Physical Therapy Assistant and Physical Therapist Assistant. The collective bargaining agreement refers to the classification as Physical Therapy Assistant.
 Hereinafter, Title VII.
 Hereinafter, EEOC Guidelines
 Ray J. Schoonhoven, Editor in Chief, Fairweather’s Practice and Procedure in Labor Arbitration, 3rd ed. The Bureau of National Affairs, Washington, D.C., (1993), p. 471.
 The use of the word “employee” in the passage is clearly a typing error. “Employer” is the intended word, as indicated both by the context and the reference to Machinists, Lodge 751 v Boeing Co., 833 F2 165, 169 (9th Cir. 1987).
 The Union’s position seems to state otherwise. In its opening statement, the Union refers to “the Union [S]ecurity provision of the parties’ collective bargaining agreement”; it also states, “The issue is whether the Employer violated its provisions.…” The antecedent of the pronoun “its” seems to be the “collective bargaining agreement” (Tr. p. 10, ll. 12-15). I express this observation in a footnote since my conclusion does not rest on a parsing of the opening statement. It rests upon the jointly agreed to statement of the Issue and upon the Employer’s assertion that Article 3.1.6 incorporates Title VII through practice.
 It may also be argued that external law—including civil rights statutes—is incorporated into the collective bargaining agreement by Article 20 since that provision holds that any portion of the Agreement in conflict with Oregon or Washington or federal law cannot stand.
 At first glance, Article 3.1.6 seems limited to the NLRA. The passage specifies that “employees of health care institutions are eligible to claim a religious exemption.” Neither party presented any evidence relating to what the parties meant by the phrase “Federal Law” that appears in Article 3.1.6. However a pre-contract history can be inferred from the following facts: When first enacted in 1974, Section 19 applied only to employees of health care institutions. (Section 19 was added in 1974 pursuant to Public Law 93-360, 93rd Cong., S. 3203, 88 Stat. 397). This limited application of Section 19 ended in 1980 when the modifying phrase “of a health care institution” was dropped and the Section became applicable to “Any employee….” (Public Law 96-593, 96th Cong., H.R. 4774, 94 Stat. 3452). (Thus neither of the applicable federal laws (NLRA and Title VII) now limit eligibility for a religious exemption to “employees of health care institutions.”) The bargaining unit to which the Objecting Employee belongs chose the Federation as its bargaining agent in an election conducted in 1992. However, the Union had been the representative of two RN units for a considerably longer period. The evidence in this arbitration indicates that Article 3.1.6 was either identical with the earlier agreements or “close to the same …. [T]here’s not a significant difference between this contract and the other contracts” (Tr. p. 57, ll 11-13). Given the way parties tend to continue non-controversial language from agreement to agreement without much review, it is likely that the language entered the Agreement by a route somewhat similar to the following: the original provision was crafted for a contract for the RN unit(s) at a time when Section 19 applied only to health care employees. Since the contract covered health care employees, there would have been no need to change the provision when Section 19 of the NLRA was changed in 1980. It is likely that when it came time to write Union Security language for the new unit, the parties merely “lifted” the text from the agreement for the RN unit(s). If this assumption is correct, it is likely that at least as originally drafted, the language that became Article 3.1.6 had a limited reference and that was to Section 19 of the NLRA.
 There is no dispute that the Union did grant a religious exemption to another PTA in the Objecting Employee’s bargaining unit (Er. Ex. 1, pp. 9 and 10, letters of May 12 and May 13, 1994). The employee’s request for accommodation was based on Title VII and the EEOC Guidelines. (Er. Ex. 1, p. 1). The Employer cites the letter of May 13 (Er. Ex. 1, p. 10) which notified the PTA that the Union had granted “your request for an exemption” and testimony of the Local Union President (Tr. pp. 66-68) as indicating that the PTA “was granted a religious exemption under Article 3.1.6 as a form of religious accommodation” (Br. p. 9).
 Tooley v. Martin-Marietta Corp., 648 F. 2d 1256, 26 FEP Cases 95 (9th Cir. 1981).
 “Because I feel within myself that it was not an organization that I felt that I could be part of because I don’t believe the same ways. I hold my job very close to me. It’s important. Kaiser has never done anything wrong to me. They’re honest individuals” (Tr. p. 27, l.22-p. 28, l. 1).
“[We] Discussed that PTA’s were licensed, I believe, to the best of my recollection, that we were licensed by the State of Oregon, we were able to communicate with our employers, and we wanted to retain that right as professionals, and that we really didn’t see in our working capacity the need for a union at that time.”( Tr. p. 109, ll. 19-24). (Underlining is added.)
 “Well, I took an oath to take care of people, to help people, and if the Union says we must strike, well, that means I cannot treat the people that I have come to work for. And Kaiser has not done anything against me, and I do not see it fit to harm Kaiser in any way, shape or form, or the members which I am servicing” (Tr. p. 111, ll. 7-12). (Underlining added.)
 “And I don’t believe that there was room for a third party to come in and tell me if I had to strike, I had to strike, because that’s just wrong. That’s morally and ethically wrong for me” (Tr. p. 28, ll. 1- 4).
“Once again, it goes against my beliefs. I may not be able to do what the Union may request of me, you know. For instance, striking. That is ethically against my sole [sic], the core of me” (Tr. p. 110, l. 25-p. 111, l. 3).
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