Glen Greenwood is an environmental specialist in the employ of the Ohio Environmental Protection Agency (OEPA). He is also a member of the Board of Elders of the Presbyterian Church (PCUSA) in Lancaster, Ohio. For approximately 20 years he has been teaching Sunday school at his church.
Glen not only loves God; he cares deeply about the environment. As an OEPA employee, he splits his time between the office and the field working on air pollution permits and enforcement.
When Glen began working for the State of Ohio in 1977 no labor union represented its employees for collective bargaining. Things began to change in 1986 when the State of Ohio recognized the Ohio Civil Service Employees Association, AFSCME Local 11, AFL-CIO, as the bargaining representative for many Ohio state employees. Still, unionization had not yet touched Glen. It happened on April 29, 1996. Glen’s job became a part of a bargaining unit represented by Local 11.
Glen’s study of the Bible and the union ultimately led him to decide to refrain from joining or financially supporting the union. Chief among his concerns about supporting the union was its support for abortion and homosexual rights. Neither of those activities was consistent with Glen’s understanding of the Bible.
When it comes to churches, if you find your views incompatible with what you see and hear in church, no one forces you to join or support that church. You can go to a more compatible church. Most public employee unions in Ohio take a much different approach. They tell employees that if they do not wish to join or financially support the union, their only recourse is to quit their job. Glen did not want to quit protecting the environment. Glen did not want to be out of step with God’s will. He wanted to keep his job and honor his conscience.
Glen wrote a letter to the union explaining the conflict between his religious beliefs and the requirement that he join or financially support the union. Instead of agreeing to work out a solution to the conflict with Glen’s conscience, the union sent him to the Ohio State Employee Relations Board (SERB) for a hearing on whether he was entitled to a religious accommodation.
Ohio’s Discriminatory Law:
SERB decided that Glen Greenwood was unqualified for a religious accommodation for one reason, and one reason only: he was neither a Seventh-day Adventist nor a Mennonite. Mr. Greenwood’s church membership was “deficient” because the Presbyterian Church (PCUSA) is not officially sanctioned by the State of Ohio as doctrinally appropriate.
Sound impossible? It is not. Section 4117.09(c) of the Ohio Code provides in pertinent part:
“Any public employee who is a member of and adheres to established and traditional tenets or teachings of a bona fide religion or religious body which has historically held conscientious objections to joining or financially supporting an employee organization and which is exempt from taxation under the provisions of the Internal Revenue Code shall not be required to join or financially support any employee organization as a condition of employment.”
If God speaks to an employee’s heart that supporting a labor union is inconsistent with His will, that is simply not good enough in Ohio. The Catholic Church, like many other churches, has historic teachings against homosexual practice and abortion. Even that is not good enough in Ohio. Only one thing is good enough for the state of Ohio: an employee of faith must prove church membership. And not just membership in any church. It must be membership in a church with “historically held” and “established” teachings that it is a sin to support a labor union.
Who Qualifies?
There are only two major religious denominations that qualify under the Ohio statute: Adventists and Mennonites. The General Conference of the Mennonite Church, in its June 6, 1941, Statement on Industrial Relations, counseled its members to “have no part in labor organizations in so far as their sanctions ultimately rest on force [such as strikes, pickets, boycotts, and compulsory unionism].” On November 8, 1940, a General Conference Committee of the Seventh-day Adventist Church issued a statement on labor unions that Adventists “cannot organically or functionally join any organization [which resorts to force] however worthy the cause may appear to be.”1 Adventist leaders were counseling against modern labor unions almost from the time that they became a national movement in the United States. Ellen White, a prominent church leader, wrote in 1903 that Adventists should “have nothing to do with unions.”2 A year later she wrote “the controlling power of the labor unions will be very oppressive.”3 A modern Adventist policy document refers to the “historical position” of the church that teaches members to “refuse to join or financially support labor unions.”4
Ohio Is Not Alone:
As strange as it may seem, this type of statute protecting Adventists and Mennonites, while rejecting every other mainstream religion, is not rare. The primary federal labor relations law, the National Labor Relations Act, contains in Section 19 a provision almost identical to the Ohio statute used against Mr. Greenwood.5 Currently, 28 states permit employees to be forced to support labor unions against their will. Of those 28 states, 10 have a provision that at least facially favors Seventh-day Adventists and Mennonites.6 These state laws were all enacted after Section 19 and generally are patterned after it. The result is that many employees in the United States, when seeking to protect their rights as religious objectors to labor unions, are likely to bump into a state or federal statute that appears to provide protection to only Adventists and Mennonites.
Given the strong church-state separation background of the Seventh-day Adventist Church, the informed reader will be astonished to find that Adventists enjoy special state-conferred privileges among employees of faith. How did that happen?
Section 19 was originally part of the 1974 amendments to the National Labor Relations Act. These amendments brought nonprofit, nonpublic hospitals within its coverage. Part of the debate over the “hospital amendments” arose over the fact that many of these hospitals were run by religious organizations.7 One of these organizations, the Seventh-day Adventist Church, had a particular complaint. Since the Adventist Church had historically taught its members to refrain from joining or financially supporting labor unions, how could the church bargain in good faith with a union over an agreement that would compel its employees to support labor unions?8
The problem was particularly acute in the eyes of Adventist Church leadership because the church’s hospitals employed large numbers of its own church members. How could the church teach that members should not support unions, yet compel that very support through a collective bargaining agreement? It was unthinkable.
An amendment was introduced by Senator Sam Ervin to cure this conflict and exempt Seventh-day Adventist hospitals, among others, from the coverage of the hospital amendments.9 Ervin’s amendment lost. The debate reveals that one of the chief reasons it lost was that the Senate did not want to exempt a large number of employers from the obligation to collectively bargain with unions.10
Still concerned about the Adventist problem, Congress took another tack to avoid a conflict between the teachings of the Adventist Church and the Congressional interest in extending the National Labor Relations Act over Adventist hospitals. The House approached it from the point of view of the employee (church member) instead of the employer (church hospital). An amendment was proposed by Representative Erlenborn to exempt from compulsory union fees those hospital employees who are members of churches that teach against union membership.11 This amendment passed the House.12 Later, in a conference committee, the House language adding Section 19 was incorporated into the conference resolution, and language was added requiring an alternative payment to a charity.13
The solution was not pretty, but it worked. Adventist hospitals would not be firing church members because they were faithful to church teaching on labor unions.
In 1980, Section 19 was amended to broaden its coverage from health-care employees to all employees covered by the National Labor Relations Act.14
Thus, the genesis of Section 19 was to work out a solution for Seventh-day Adventists whose hospitals and employees were now being drawn within the coverage of the National Labor Relations Act. Section 19 ended up applying to all employees covered by the primary federal labor law.
Why Unions Love the Adventist Edge:
Labor unions ended up being the unintended beneficiaries of Section 19 and its state counterparts. An employee seeking to protect his religious freedom in the workplace would normally look to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., not the National Labor Relations Act. Title VII is the principal federal statute protecting employees from discrimination.
Extensive litigation against unions under Title VII has resulted in broad rights for employees of faith. Under Title VII, the standard religious accommodation for employees whose sincere religious beliefs bar them from supporting a labor union is to allow them to redirect all of their union fees to a charity.15 Because the religious freedom protections of Title VII extend even to atheists,16 no church membership of any type is required to claim a religious accommodation under Title VII. Personal religious beliefs, if sincere, are protected.
Although individual opinions may differ, in general, union officials do not like the idea of any employee being able to divert compulsory union fees out of the pockets of the union and into the hands of a charity. After all, didn’t organized labor fight hard in Congress to gain that unique right to compel support from unwilling employees?
As a result, when an employee of faith asks union officials about a religious accommodation, they often respond with a copy of Section 19 or a similar state law. Virtually every collective bargaining agreement that refers to the rights of employees who have religious objections to supporting the union refers only to Section 19 or one of the parallel state laws.17
This continues today, despite the fact that over a decade ago a United States Court of Appeals declared Section 19 unconstitutional because of the preference it gives to Adventists and Mennonites. The U.S. Supreme Court refused to review that decision.18
Because most employees are not constitutional lawyers, and employers and unions remain too polite to mention that the church membership requirements in their collective bargaining agreement are invalid, employees believe what they see printed in their contract or copied from a statute. The result is that Baptists, Catholics, Methodists, Episcopalians, and Mormons, to name a few, are misled to believe that their religious beliefs are not protected by the law. If they want to be protected, they must convert. No doubt Adventists and Mennonites wait with open arms. This is not, however, how the law is supposed to operate in the land of the free.
The United States to the Rescue:
When Glen Greenwood found that his status as a Presbyterian barred him from a religious accommodation, he was unwilling to take “no to Presbyterians” for an answer. He learned of his rights from the National Right to Work Legal Defense Foundation’s Web site.19 He then filed charges against his union and his employer (the State of Ohio and its divisions) with the U.S. Equal Employment Opportunity Commission. After investigating his charges, the Commission found cause to believe that Glen’s employer, his union, and even the Ohio State Employment Relations Board (SERB) had violated federal law. After further investigation, the United States sued in federal court in Columbus, Ohio, naming the State of Ohio, two of its subdivisions, and SERB as defendants. The complaint alleged a pattern and practice of discrimination on the basis of religion.20
The power of the federal government was further exerted to correct this injustice against Glen Greenwood when the U.S. Equal Employment Opportunity Commission (EEOC) filed suit in the same federal court against the union that refused to accommodate Glen.21 The EEOC alleged that this statewide union (an affiliate of the American Federation of State, County and Municipal Employees union) engaged in a pattern and practice of discrimination on the basis of religion.22 As of this writing, the State of Ohio and the union continue to fight these suits in federal court, despite the fact that almost 15 years ago the U.S. Court of Appeals with jurisdiction over Ohio specifically declared Section 19 unconstitutional.
Far from showing remorse for its discrimination, the union struck back at Mr. Greenwood for bringing the authority of the United States government against it. It asked the federal court to order Mr. Greenwood to pay the union every penny of what he earned since he began doing his environmental work in Ohio.23
At present, Ohio and the union are keeping up their fight to discriminate against Mr. Greenwood on the basis of his religion.
Securing Liberty and Justice for All:
What should an employee of faith do when told that his church is not one authorized by law for religious accommodation? The first step, the same one taken by Glen Greenwood, is to refuse to take “no” for an answer. Almost every employee with sincere religious objections to supporting a labor union is protected by federal law.
Employees who have sincere religious objections to joining or supporting a labor union should write a letter to their employer and union explaining the religious reasons that it is inconsistent with their faith to support the union. This letter is very important. Wise employees will consult with a knowledgeable lawyer when drafting this letter.24
If just writing the letter does not cure the problem (it does in most cases), the second step is to file a charge against the employer and union with the EEOC. The EEOC is the federal agency that administers Title VII. Title VII provides protection for nearly all employees. Private employers with 15 or more employees are covered, all state and municipal employers are covered, as are labor unions who have 15 or more members.25
While the United States had to come to the rescue of Glen Greenwood, his current situation is unusual. Although it is extremely common for employees of faith to be misled about their right to request a religious accommodation, once legal help is sought or EEOC charges are filed, employers and unions generally start to see the wisdom of providing liberty and justice for all.
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Bruce Cameron writes from Springfield, Virginia. He is a litigator for the National Right to Work Legal Defense Foundation and directs its Freedom of Conscience Project. He is counsel for Glen Geeenwood.
1 Wilcox, “Our Relationship to Labor Unions,” Review and Herald, Feb. 6, 1941.
2 Ellen. G. White manuscript 71, 1903.
3 Ellen .G. White letter 5, 1904.
4 North American Division of the General Conference of Seventh-day Adventists, Working Policy HC 30 10(a) (1996-1997 ed.)
5 29 U.S.C. § 169.
6 These states are: Alaska, California, Hawaii, Illinois, Montana, Ohio, Oregon, Pennsylvania, Washington, and Wisconsin. In some of these states, the statute has been construed to provide protection regardless of church membership.
7 120 Cong. Rec. 12,955-56 (1974) (remarks of Senator Cranston).
8 120 Cong. Rec. 12,950-55 (1974) (remarks of Senator Ervin, including brief of Seventh-day Adventist Church, and statement of Melvin Adams, a church representative.)
9 Ibid.
10 120 Cong. Rec. 12,968 (1974) (remarks of Senator Cranston).
11 120 Cong. Rec. 16,914 (1974).
12 120 Cong. Rec. 12,915-16 (1974).
13 120 Cong. Rec. 22,575 (remarks of Senator Williams) and 22,577 (1974) (remarks of Senator Cranston).
14 126 Cong. Rec. 2579-80 (1980) (remarks of Representative Thompson).
15 Ninth Circuit: IAM v. Boeing, 833 F.2d 165, 168-169 (9th Cir. 1987). Seventh Circuit: Nottelson v. Smith Steel Workers, 643 F.2d 445, 451 (7th Cir. 1981). Sixth Circuit: EEOC v. University of Detroit, 904 F.2d 331, 335 (6th Cir. 1990) (withhold and redirect fees away from offending union). Fifth Circuit: Cooper v. General Dynamics, 533 F.2d 163, 168-170 (5th Cir. 1976) (exemption from payment). Third Circuit: See Jacobo Marti & Sons v. NLRB, 676 F.2d 975, 979 (3rd Cir. 1982).
16 Young v. Southwestern Savings & Loan, 509 F.2d 140 (5th Cir. 1975).
17 These statements are based on the author’s 30 years of experience counseling and litigating for religious objectors.
18 Wilson v. NLRB, 920 F.2d 1282, 1287 (6th Cir. 1990), cert. denied, 505 U.S. 1218 (1992).
19 www.nrtw.org.
20 United States v. Ohio, Civ. No. 2:05-cv-00799, Complaint ¶ 22. SERB was named as a Rule 19 defendant.
21 EEOC v. OCSEA, AFSCME Local 11, AFL-CIO, Civ. No. 2:05-cv-00881.
22 Ibid., Complaint, ¶ 21.
23 The claim of the union for damages from Mr. Greenwood is not precisely clear from the face of its court filing. When Mr. Greenwood sought to have the Court impose sanctions on the union for this tactic, the union withdrew its claim against him. United States v. Ohio, Civ. No. 2:05-cv-000799, docket entries 20, 25, 30, 35, 36, 40 and 59.
24 The National Right to Work Legal Defense Foundation, www.nrtw.org, provides free legal assistance to employees who have sincere religious objections to supporting a labor union.
25 There are some limited exceptions to the list of employers covered by Title VII. These exceptions include Indian tribes, certain employees of the District of Columbia, and tax-exempt private clubs. An employer with less than 15 employees may be covered by a state antidiscrimination law with parallel Title VII-type provisions.
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