Organized labor has lately been working to transform its political muscle into organizing muscle through something creatively captioned “the Employee Free Choice Act”—“free choice” meaning that employees would be forever barred from having a secret ballot vote on whether they wanted to be represented by a labor union.
Political pundits have argued that the union officials have gone too far. The public seems unwilling to allow union organizers to increase membership by stripping employees of a secret ballot. Although the effort to destroy the secret ballot may be on life support, organized labor is still continuing with behind-the-scenes efforts to get the government to help it to corral those stubborn employees.
Whether labor union officials will be able to cast their net over ever-larger-numbers of employees will have a great impact on employee religious freedom. Whatever the supposed value of union representation, there is now no doubt that it is a poison pill for employee civil rights, including religious freedom in the workplace.
Although the public has been able to observe and weigh in on whether employees should have the opportunity to vote in secret, most people are likely unaware that the U.S. Supreme Court just handed labor unions (and employers) the right to take away an employee’s right to a fair trial.
Secret ballot? Fair trial? Fundamental liberties at risk? Yes. Employees have just been released from their second major operation before the High Court. Here is the “medical history” of employee rights.
Labor union officials enjoy numerous and unusual privileges in American law. Unions are modern monopolies created and protected by law. The general antitrust and antimonopoly laws do not apply to labor unions in their traditional work. This is at the heart of the problem. Monopolies, by their nature, sacrifice individual rights. They value and enhance collective rights. As every Star Trek fan knows, the advance of the Borg means the loss of the individual.
Congressional protections for employees of faith
In 1964 Congress passed Title VII of the Civil Rights Act, which, among other things, protects employees against workplace religious discrimination. It forbids an employer (or labor union) to “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . religion.”1 As a result, an employer could not fire an employee because he was a Baptist, and a labor union could not kick a member out of the union because he was a Roman Catholic. This kind of direct religious discrimination, however, is pretty rare. The bigger issue was this: What should happen when an employee’s faith conflicts with a general work requirement?
Assume a company is behind in its manufacturing goals and decides that all employees will have to work an additional day during the weekend. If an employee objected because Saturday or Sunday is that employee’s day of rest and worship, would it be “discrimination” to fire that employee for not working during the weekend? If the definition of discrimination is to “treat someone differently,” then requiring everyone to work the weekend is evenhanded treatment, right? In 1971 that precise issue came before the U.S. Supreme Court in Dewey v. Reynolds Metals, 402 U.S. 689 (1971). The Court, in a very rare circumstance, evenly split on the issue of whether the prohibition on religious discrimination included an obligation to affirmatively accommodate individual religious belief.
Congress reacted to this uncertainty by making its intentions in Title VII clear. In 1972, the year after Dewey was decided, Congress amended the definition of “religion” in Title VII to include an affirmative obligation to accommodate an individual employee’s religious beliefs.
From a historical point of view, this made sense. The first freedom described in the amendments to the U.S. Constitution is the freedom of religion. Our Founders did not describe the protection for individual religious freedom in terms of discrimination, but rather they described the right of an individual to freely “exercise” religious freedom. That points to a desire to allow individuals to practice their faith without interference from the government or government-sponsored monopolies.
After the 1972 amendment, employees held two important legal rights: the right to be free from religious discrimination and the right to a reasonable accommodation of religious belief and practice.
Congress gives, the Court takes away
Employees possessed both of these rights for, well, about the time it takes to get a case before the U.S. Supreme Court. In 1977, in TWA v. Hardison, 432 U.S. 63 (1977), the High Court considered the case of Larry Hardison. Larry, a member of the Worldwide Church of God, observed his Sabbath from sundown Friday to sundown Saturday. His employer wanted him to work on his Sabbath.
The cure for Larry’s problem was his recently acquired right to a religious accommodation—the right to be treated differently because of the demands of conscience. Larry had a second, less obvious problem: the International Association of Machinists was his monopoly bargaining representative.
Larry’s right to different treatment based on his faith ran headlong into the union contract that created only one basis for treating employees differently: an employee’s seniority under the union contract.
What to do? Should the union contract or congressional authority prevail? It was a “Borg v. Congress” scenario. In its first major operation on employee religious freedom under Title VII, the justices of the Supreme Court decided that the religious accommodation provision was at best an appendix and at worst a tumor. They eviscerated it in favor of collective rights.
Pinkerton guards escort strike-breakers in Buchtel, Ohio, 1994.
The Supreme Court’s opinion in Hardison reveals a very strong judicial bias against the (then) recent congressional mandate requiring employees of faith to be treated differently when an employment requirement conflicted with religious faith. Consider this portion of the opinion:
“The emphasis of both the language and the legislative history of [Title VII] is on eliminating discrimination in employment; similarly situated employees are not to be treated differently solely because they differ with respect to . . . religion.”2
Such language made it appear that Congress never amended Title VII to require an affirmative accommodation of employee religious belief and practice!
Instead of protecting minority rights, as demanded by Congress, the Court protected the rights of the collective. It decided that if a religious accommodation required an employer or union to violate the seniority provisions of a union contract, such accommodation was no longer required under federal law.
The Court endorsed the union lawyers’ view of how to sort out an employee’s preferences about which days to work. “The seniority system . . . represent[s] a significant accommodation to the needs, both religious and secular, of all of TWA’s employees.”3 The practical translation of this is that no employee with a minority religious belief need apply for work in a union shop. New employees have no seniority and (now) no religious accommodation rights either when it comes to Sabbath work.
The dissenting justices put it well: “Today’s result is intolerable, for the Court adopts the very position that Congress expressly rejected in 1972.”4 It took only five years for the High Court to bleed out the religious accommodation rights given employees by Congress and give a blood transfusion to the monopoly bargaining powers of labor unions.
That was the first operation. The “good news” (such as it was) arising out of Hardison was that employees of faith would at least be able to argue their religious freedom cases in the lower federal courts—courts that seemed to be more receptive to the rights of individual employees. That good news would last for another 23 years before the U.S. Supreme Court decided to bring employee rights in for a second operation. This time the bloodletting left employees unable to open the doors of the federal courts to their religious freedom claims.
The doors shut with the decision of the Supreme Court in 14 Penn Plaza v. Pyett, 556 U.S.__(2009). Instead of being a religious freedom case, 14 Penn Plaza was an age discrimination case. A number of New York employers entered into a contract with a union representing employees working as night guards in hotel and office lobbies. These employees had a complaint. With the union’s agreement, their employers told them that henceforth they would be night porters and cleaners, while younger workers employed by a security agency would take over their night guard jobs. Overnight, their jobs changed from “heavy sitting” to “heavy lifting.” Preferring to go to a gym for their workout, the employees protested the new conditions. The employees alleged the transfers were made because of their age and filed suit in federal court.
Age discrimination is prohibited by the federal civil rights laws. Whether the employer was illogically (and discriminatorily) turning to older employees for heavy lifting will never be determined in court. Why? The Supreme Court read the union contract and found that it expressly required employees to submit any claims of employment discrimination, including claims arising under federal law, to the contract’s grievance procedure, which ultimately ends in arbitration. Assigning an arbitrator the job of resolving disputes over the meaning of a union contract is common because it is a simple and low-cost way to resolve “shop floor” disputes, but this agreement obviously went further.
Moreover, in this second major operation on employee rights, the High Court determined that these employees’ statutory age discrimination claims could go only to an arbitrator. The door to the federal courts was closed.
For at least the prior 35 years the Supreme Court had held that a union could not waive the statutory civil rights of individual employees. Why? There are two reasons. First, the justices had previously ruled that labor union officials are monopoly representatives only for workplace matters normally included in the union contract. Unions had no right to monopolize every legal right an employee possessed. In particular, unions had no monopoly rights when it came to an employee’s civil rights claims. Therefore, unions could not waive the civil rights of individual employees, including their right to be heard in federal court.
Second, the law had been that employees’ union collective bargaining rights (contract rights) and their federal civil rights were separate and distinct bundles of rights. They could be separately enforced.
But that is no longer the case. In the second operation, activist conservative surgeons on the High Court used the union grievance/arbitration procedure to cut off employee access to court. The union collective now had the authority to agree that all employees in the bargaining unit (with or without their individual consent), including employees who had rejected union membership, could be barred from having their civil rights claims heard in court!
The court surgeons denied that they had just excised an individual employee’s civil rights. They were just moving “parts” around. The right to have your day in court before a federal court judge would be shifted to the right to be heard before an arbitrator. The employee’s “substantive” civil rights supposedly would still be intact. This was just a procedural matter, purred the knife-wielding majority.
For those knowing nothing about the facts of employment arbitration, the Court’s claim might make sense. For those in the know, it makes little sense.
Individual employees with civil rights claims often bring them against both the employer and the union. Who gets to pick the arbitrator who now stands in the place of a federal court judge? Not the individual employee. The employer and union typically select the arbitrator. They not only mutually select the arbitrator; they pay for the arbitrator’s decision.
Worse, the arbitrators have a virtual word tattooed on the palm of their writing hand. That word is “acceptability.” In every case the arbitrator makes a decision with the full knowledge that if he or she too seriously offends the employer or union (and therefore becomes “unacceptable”), they will never select him or her again to be the arbitrator. If an arbitrator wants to eat next month, an arbitrator writes a decision that is acceptable to both parties who will consider hiring him or her next time: the employer and the union. The individual employee is not part of the arbitrator’s future employment prospects. Individual employees will not be sending the arbitrator’s children to college.
Just in case this picture is unclear, imagine a judicial system in which your litigation opponent selects the judge, pays the judge for deciding your case, and determines the amount of the judge’s future income! That is 14 Penn Plaza in a nutshell. Employees of faith had their workplace religious freedom carved from the hands of a federal court judge and placed in the hands of an independent contractor selected by company and union bosses. It was quite the operation.
In the national debate about whether government should increase its support for union organizing, consider that 14 Penn Plaza applies only to employees represented by union officials. For employees who are concerned about pleasing God, would a union in the workplace be helpful? Would the government aid to union organizers be a good thing?
The answer is clear. If organized labor persuades Congress to help it organize more employees, workplace religious freedom will suffer. Worse, the Court is always open for further operations transferring individual employee rights to the union collective. You might want to mention this to your elected representatives.
- 42 U.S.C. § 2000e-2(a) (1) (employer); 42 U.S.C. § 2002e-2(c)(1) (union).
- Hardison, 432 U.S., at p. 71.
- Ibid., at p. 78.
- Ibid. , at p. 87.