Rulings side with anti-union employee
A security guard in San Francisco who faces losing his job because he refuses to pay union dues based on his religious beliefs says his employer and union are violating his constitutional rights, a position that appears to be supported by past court rulings.
Thomas Ross, represented by the National Right to Work Foundation, an antiunion organization, has filed complaints with federal and state agencies claiming religious discrimination by his employer, Allied Universal, and United Service Workers West, an affiliate of the Service Employees International Union. The complaints say Title VII of the 1964 Civil Rights Act requires employers “to accommodate employees who cannot, because of their personal religious beliefs, join or financially support a union.”
Ross was hired in 2020 and said he immediately told both the company and the union that his religious beliefs prohibited him from joining the union or paying dues. He said he received no reply until this Aug. 30, when Allied Universal told him to sign a union membership form and authorize deduction of dues from his paycheck or lose his job. He said he refused, but the company nevertheless deducted dues from his pay in September and again threatened to fire him.
In his letter to the company, Ross cited a passage in the New Testament’s Book of Titus that “exhorts servants to be obedient to their own masters.” He also said he could not belong to an organization, such as a union, that “promotes causes that the Bible condemns.”
Every federal appeals court that has considered the issue “has held that unions and employers may not compel a person to fund a union that conflicts with his religious beliefs,” lawyers for Ross told the California Department of Fair Employment and Housing. They filed similar arguments with the National Labor Relations Board.
One such ruling was issued in 1987 by the Ninth U.S. Circuit Court of Appeals in San Francisco in favor of a Boeing Co. employee who said her personal religious beliefs barred her from joining or supporting a union, even though her church did not object to union membership. She offered instead to contribute an equal sum to charity.
A three-judge panel that included future Supreme Court Justice Anthony Kennedy said Title VII, and rulings interpreting the law, required employers to take “reasonable steps to accommodate their emRoss’ ployees’ religious beliefs.” Those accommodations can include allowing an individual employee to donate to charity an amount equal to the union dues, as long as the union does not suffer “undue hardship,” the court said.
“The loss of one employee’s dues ... does not inflict undue hardship on a union,” the court concluded. And while the Supreme Court has not directly considered the issue, Ross’ lawyers noted that the court, in a 1981 ruling granting unemployment benefits to a Jehovah’s Witness who refused a job assignment to work on military tanks, said an employee’s “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.”
Federal law also appears to favor religious objectors, said William Gould, a Stanford Law School labor law professor and former chairman of the National Labor Relations Board.
“Congress passed amendments to the NLRA (National Labor Relations Act) in 1980 allowing religious objectors to pay a sum equivalent to dues and initiation fees to a religious group elsewhere,” Gould said by email.
The NLRA exemption, as written, applies only to employees who follow the “established ... teachings” of a “bona fide religion ... which has historically held conscientious objections to joining or financially supporting labor organizations.” But the Ninth Circuit’s 1987 ruling said the Boeing employee had a constitutional right to follow her own religious beliefs, independently of her church, and withhold union dues while donating to charity.
That should mean that Ross, who has cited only his own religious views, is acting within his rights as long as those views are sincerely held and he agrees to contribute an equal sum to charity, said Catherine Fisk, a professor of labor law at UC Berkeley.
Jacob Comello, a spokesperson for the National Right to Work Foundation who provided details of case, declined to comment on Ross’ willingness to donate to charity, saying the question was premature because “his employer and union have so far refused to accommodate him in any way.” Ross’ employer and the labor union did not respond to requests for comment.
Fisk said one question raised by the case is whether it is “part of a larger litigation campaign to deliver to the Supreme Court cases that the court could use to establish the right of religious people to exempt themselves from all sorts of generally applicable laws.”
She noted that the court, in a 6-3 ruling, ordered California in February 2021 to allow places of worship to open their doors during the pandemic, finding that Gov. Gavin Newsom’s ban on indoor worship services in counties hit hard by COVID-19 treated religious institutions more severely than retail businesses. The court was unmoved by the state’s scientific witnesses who said indoor religious services pose a far greater threat of spreading the coronavirus than grocery stores.
But this June, in another 6-3 vote, the justices rejected a challenge to New York’s refusal to exempt religious objectors from an order requiring COVID-19 vaccinations for health care workers. The court had previously denied a religious challenge to similar rules in Maine.
And over protests from its most conservative justices, the court, so far, has left intact its 1990 ruling on governmental authority to regulate religious practices. In the 6-3 ruling, which denied unemployment benefits to Native Americans who were fired by a drug clinic in Oregon after taking peyote at a religious ceremony, the late Justice Antonin Scalia said a state can enforce laws that affect religious practices as long as the laws are neutral, apply to the general population and are not motivated by hostility toward religion.