THE FIRST AMENDMENT, FEDERAL LABOR LAWS AND COMPULSORY UNION FEES–
The purpose of this guide is to help employees who have religious objections to joining or financially supporting a labor union understand their rights under Title VII. The National Right to Work Legal Defense and Education Foundation has funded a great deal of litigation that has established employee rights under the First Amendment to the U.S. Constitution, the National Labor Relations Act and the Railway Labor Act. Although it was not the purpose of that litigation to protect religious objectors, it turns out that those cases provide protection for certain types of religious beliefs.
Take the example of a union involved in activities contrary to the religious beliefs of Joe Believer. On page 5 of this guide, the religious objector was asked to consider the question, “What will eliminate the conflict [between your religious beliefs and the requirement that you join or financially support the union]?” Religious beliefs vary, and Joe Believer may be able to work with a clear conscience if he is simply allowed to resign his membership in the union. If that is not enough, perhaps resigning from the union and refraining from financially supporting the offending union activity will keep Joe’s conscience clear.
Foundation attorneys have won U.S. Supreme Court cases under the First Amendment to the U.S. Constitution,21 the National Labor Relations Act,22 and the Railway Labor Act23 establishing the right of all employees (not just religious objectors) to resign from a union and pay only a limited agency fee to the union. This limited agency fee is the employee’s pro rata share of the union’s collective bargaining expenses. It is certainly possible that the offending union activity is not a collective bargaining expense,24 or that the net reduction in the amount paid to the union frees the employee’s conscience about funding certain activities.
It is beyond the scope of this guide to discuss how an employee goes about securing these constitutional and statutory rights. If you would like to find out more, contact the National Right to Work Legal Defense and Education Foundation at (800) 336-3600, (703) 321-8510, or legal@nrtw.org.
STATE RIGHT TO WORK LAWS AND COMPULSORY UNION FEES–
This guide would not be complete if it did not mention the enormous role that state Right to Work laws play in protecting employees who have religious objections to joining or financially supporting unions. In those 26 states25 that have passed Right to Work laws, employees are completely free to decline to join or financially support a labor union.26 As a result, employees who have religious objections to joining or financially supporting a union, and are covered by these state laws, are completely free to follow their conscience by resigning from the union. They need not resort to litigation under Title VII.
WHAT YOU CAN DO IN AN EMERGENCY–
Neither the EEOC nor most courts will act very quickly to decide a religious objector’s case. (They do not decide any cases very quickly.) It is far better, from a legal and financial point of view, to litigate the issues discussed in this guide while the religious objector is still employed.
If nothing else, seek a temporary solution that will allow you to keep your conscience intact while you litigate these issues. Only you can decide what your conscience permits, but there are several possible temporary solutions.
First, the Supreme Court decisions concerning employees who object to the amount of a union’s fee require the union to allow the contested union fee to be escrowed, pending determination of the appropriate amount of the fee. If you have religious objections to paying a union fee, a temporary solution may be to place your fee in an escrow account until your case is decided.
A second possibility in a union fee situation is to pay the union fee under protest. Mark the check “paid under protest” and write a letter accompanying the check that explains the money is being paid under protest only to preserve your job.
Other possibilities are limited only by the imagination of the religious objector and the willingness of the employer or union to agree. Come up with a temporary solution and simply ask the employer or union to agree to it on a temporary basis, until a decision is reached by the EEOC.
At the first indication your employment may be in jeopardy, you should call an attorney, the Foundation, or the EEOC, so that steps can be taken to protect your job. Sometimes, just the indication that a religious objector has legal help will cause the employer and union to be cautious.
ABOUT THE AUTHOR–
Bruce N. Cameron is the Reed Larson Professor of Labor Law at Regent University School of Law and is the Director of the Freedom of Conscience Project of the National Right to Work Legal Defense Foundation. He is a member of the Virginia State Advisory Committee to the U.S. Commission on Civil Rights (2015-2019). At the law school he teaches Labor Law and Employment Discrimination. In 2015, he began his 40th year of litigation on behalf of employees in Foundation funded cases.
21. Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977).
22. Communications Workers v. Beck, 487 U.S. 735 (1988).
23. Ellis v. BRAC, 466 U.S. 435 (1984).
24. Lehnert v. Ferris Faculty Ass’n, 500 U.S. 507 (1991), and cases cited therein give an idea of what types of expenses are considered to come within the ambit of “collective bargaining.”
25. These 26 states are: Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Michigan, Mississippi, Nebraska, Nevada, North Carolina, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, Wisconsin and Wyoming.
26. An exception exists for employees who work in an industry governed by the Railway Labor Act or those work on a federal enclave.
