APPEAL from the Circuit Court of Madison County; the Hon.
VICTOR J. MOSELE, Judge, presiding.
MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
This appeal is taken from a judgment entered by the circuit court of Madison County reversing an order of the defendant Fair Employment Practices Commission (Commission) finding that plaintiff Olin Corporation (Olin) had unlawfully discriminated against its employee defendant, Burl Leon McEvers, because of his religion. The circuit court ruled in relevant part:
"Nowhere in the reading of the statutes does this Court find a statutory imposition of a burden on an employer to make `a good faith effort * * * to reasonably accommodate an employee's genuine and recognized religious beliefs.' (Commission Order at Page 6). The Commission has taken it upon itself to impose this burden and the Court finds this to be an expansion of the legal authority of the Commission.
The language of the Commission indicates that instead of limiting their ruling to the facts of the case and the applicable Illinois law set forth in the Fair Employment Practices Act and the Constitution of Illinois, they have gone outside this by having their ruling or rationale (Page 6 of the Order), policies, (Page 8 of the Order), and guidelines (not) contained in the language of the Fair Employment Practices Act."
In reversing the Commission and remanding the case for rehearing, the court directed the Commission to consider only statutory law and specifically to disregard "language offered elsewhere, including but not limited to that contained within its own guidelines." In the factual context presented by defendant McEvers' complaint, the ruling of the court below was that the statutory prohibition against religious discrimination did not include an obligation on the part of Olin to make a good faith effort reasonably to accommodate employee McEvers' religious beliefs.
Briefs amicus curiae have been filed by the Seventh-Day Adventist Church and the Anti-Defamation League of B'nai B'rith. This appeal presents the following questions for review: (1) whether section 3(a) of the Illinois Fair Employment Practices Act (Ill. Rev. Stat. 1967, ch. 48, par. 853(a)) requires an employer to make reasonable accommodation of an employee's religious observance of a weekly day of rest; (2) if the Act requires accommodation, whether such a statutory requirement violates either article 1, section 3 of the Illinois Constitution or the First Amendment of the Constitution of the United States; (3) if accommodation is both required by the Act and is not constitutionally prohibited, then under the circumstances of this case does accommodation for the defendant-employee result in undue hardship either to the plaintiff or to other employees, so as to outweigh any requirement of accommodation.
In addition to the foregoing substantive issues arising from the Commission's order, plaintiff-appellee makes certain contentions raising procedural issues. These contentions question the propriety of the Commission conduct in its administrative decision-making process, specifically: (4) whether the participation of Commissioner Lieberman in the determination of the order or the absence of Commissioner Foreman from the determination constituted procedural error requiring a reversal and remand of the order; and (5) whether the Commission erred by refusing to join the Union, which was the collective bargaining representative of the defendant-employee and of other employees affected by the order, as an indispensable party to its procedings and, if so, what corrective action is now appropriate.
Defendant-appellant McEvers began employment with plaintiff Olin Corporation at its East Alton, Illinois, plant in March 1964. At the time of his discharge from Olin's employ on December 6, 1969, defendant McEvers worked a regularly assigned six-day week on the graveyard shift (midnight to 8 a.m.) as a general machinist. Defendant-employee was one of seven or eight general machinists permanently assigned to this shift. His duties included repairing and maintaining plaintiff's production equipment. As production schedules necessitated, the defendant-employee had been required to work seven days a week.
Plaintiff-employer staffed each shift with the number of general machinists necessary to maintain its production equipment. The work force of seven or eight general machinists on the third shift was approximately half of the work force on each of the other two shifts. In determining the number of machinists asigned to a shift, plaintiff also considered such factors as absenteeism due to vacation, personal problems, and illness. While sporadic unexpected absence was permitted for personal reasons, the plaintiff's policy did not permit any employee to be absent on a regular basis every week from his regularly assigned shift. Overtime hours, if not voluntarily accepted, became mandatory. Pursuant to plaintiff's rules and policy, an employee junior in seniority who refused overtime was terminated.
Conflicting testimony was adduced whether general machinists were "in demand" at plaintiff's plant at the time of defendant McEvers' termination. With the Union's permission plaintiff had accelerated the apprenticeship program for general machinists prior to November, 1969, to meet its increasing production requirements. Many general machinists, including the defendant, were working eight hours of mandatory overtime in November and December of 1969. Shortly after the defendant McEvers was discharged in December, 1969, work schedules for several machinists were reduced to forty hours.
At the time of his termination, the defendant McEvers was a member of District No. 9, International Association of Machinists and Aerospace Workers, a member of the AFL-CIO. Union membership was a condition of his employment. At all times material herein, the Union and the plaintiff have been parties to a collective bargaining agreement which sets forth terms and conditions of employment for employees in the bargaining unit that includes defendant McEvers. The agreement has defined work schedules, work weeks, bidding and transfer rights, and seniority status. Pursuant to the agreement, all the plaintiff's jobs were filled by seniority and without regard to any employee's religious beliefs. With respect to any employee's regular work schedules, no exceptions were allowed for purposes of observing the Sabbath. Each work shift, including the defendant-employee's, was staffed in accordance with the provision of the collective bargaining agreement. It was as a result of the defendant McEvers' junior seniority status that he was assigned permanently to work the "graveyard shift."
In the spring of 1969, some five years after his employment with plaintiff, the defendant McEvers began receiving instruction in the teachings of the Seventh-day Adventist Church. The Church teaches that the Sabbath begins at sundown Friday and continues until Saturday evening, a period which may not be spent engaging in secular affairs. As a devout member of the Church, a general machinist would be precluded by his religious beliefs from working the plaintiff's third shift, midnight to 8 a.m., between sundown Friday and sundown Saturday.
At the time of his termination and during the proceedings before the Commission, defendant McEvers' status in the Church was that of an "interested party" professing a "personal belief" in the Church's Sabbath. He had not yet become a baptized member because he was unable to give up smoking, conduct also proscribed by the Church. During his period of instruction beginning spring 1969 defendant-employee worked his permanently assigned third shift on the Church's Sabbath.
In October, 1969, however, the defendant McEvers informed his supervisor regarding his belief in the Sabbath and requested to be excused from a Friday night shift. This request was refused. Shortly thereafter, the defendant-employee authorized his pastor, the Rev. A. John Graham, to approach the plaintiff's supervisory personnel regarding a possible accommodation of his religious beliefs and his Saturday morning work shift requirement. Through Pastor Graham, the defendant offered to work the second shift on Saturday nights at regular pay or to "double over", i.e., to work from 12 midnight Friday to 4 p.m. Friday, at regular pay. Subsequently, he also proposed to; (1) secure a substitute to work Saturday mornings; (2) work a four-day week, Monday through Thursday, until such time as his seniority permitted him to bid and receive another job; or (3) work the Saturday shift (Saturday midnight to 8 a.m. Sunday) at regular pay. Pastor Graham also discussed the matter with the Union which subsequently informed the plaintiff on November 5, 1970, that the Union would not waive any rights under the collective bargaining agreement. Later, the Union similarly informed the Commission's investigator that it intended to hold the plaintiff to the "letter of the agreement."
By November 1969 defendant McEvers had resolved not to work on Saturday mornings. He notified his immediate supervisor of his decision and he did not report for the Saturday morning shift. After having missed two consecutive Saturdays, the defendant-employee was informed by his supervisor that he faced dismissal if his absence continued.
On Friday morning, December 5, 1969, defendant McEvers once again notified his supervisor that he would not report to work that night. Shortly thereafter, he was told to report to the Superintendent of Machine Maintenance at the plant, Richard Glassey. Glassey advised the defendant that if he did not report for work that Friday it would be considered insubordination, resulting in immediate discharge.
Glassey further informed the defendant that several alternatives to having him work his regular Saturday morning shift had been considered but rejected by the plaintiff. These alternatives included holding over another machinist from the previous shift. In the plaintiff's view, however, this alternative was not feasible because the substitute employee would be working overtime, requiring the plaintiff to pay an overtime premium rate to cover defendant-employee's absence. Similarly, overtime payment would be required if a machinist doubled over by reporting eight hours early. Over the course of the year, such overtime payments would result in approximately $1,000 of increased expense to the plaintiff.
The superintendent explained that trading shifts with another employee was considered but also found impractical. Under the collective bargaining agreement with the Union, other employees' seniority rights to the most desirable shifts would be violated. It was also explained that the defendant McEvers' job could not remain vacant on the Friday evening "graveyard shift" since there were insufficient machinists to provide maintenance services for the production activity. Finally, the defendant-employee was asked if he had any other suggestions or alternative courses of action. He explained that he had attempted to bid on other jobs or more accommodating shifts but was unsuccessful because of his limited seniority under the collective bargaining agreement. At the time of this discussion with his superintendent, the defendant had not attempted to secure a replacement who could work for him Friday nights. Superintendent Glassey advised defendant McEvers to work his regular Friday night shift until his seniority was sufficient to bid on another or until he could find employment elsewhere. Glassey added that he would be glad to recommend the defendant as a good general machinist if he sought another job.
Later, at approximately 3 p.m., defendant McEvers called Glassey and asked if everything could be put off one week. Glassey refused this suggestion. At 10 p.m. the defendant called the plant and told Glassey that he would not come in for work. The next night, Saturday midnight, December 6, the defendant reported for his regular shift. He was given a disciplinary notice and discharge which stated that he was fired for insubordination.
The Union did not protest the plaintiff's decision. And, although aware of his right to do so, defendant McEvers did not file a grievance. He did, however, speak with a union representative on December 10, 1969, who referred him to the Union business representative. The next day defendant McEvers spoke to the representative. After this meeting there was no further contact between the Union and the defendant regarding his dismissal.
The Tuesday following his discharge, December 9, 1969, defendant McEvers started work with an insurance company, and several months thereafter changed jobs to work for another insurance company. Both positions paid less than his former rate as a general machinist. After his discharge from Olin, McEvers sought jobs at approximately six plants within a thirty-mile radius of his home. None of these companies had vacancies. The estimated difference in pay between his new jobs and his job at Olin Corporation was at the time of the Fair Employment Practices Commission's hearing in September 1970 approximately $2900 plus lost hospitalization benefits.
On December 18, 1969, defendant McEvers filed a timely charge of discrimination with the Equal Employment Opportunity Commission (E.E.O.C.), which, pursuant to the directives of the Civil Rights Act of 1964 (42 U.S.C. § 2000 et seq.) deferred action of the Federal charge and referred the matter to the Illinois Fair Employment Practices Commission, a defendant herein.
After investigation the Commission determined that substantial evidence existed to support the allegations that an unfair employment practice had been committed in violation of the Illinois Act. Pursuant to the requirements of the Act, a conciliation conference was held on June 30, 1970, before Commissioner Marvin L. Lieberman. The matter was not settled at the conference and the Commission appropriately issued a notice of public hearing and a complaint of unfair employment practice alleging religious discrimination by the plaintiff.
On September 17, 1970, a hearing on the complaint was convened before a hearing officer of the Commission. On February 25, 1971, an order and decision was entered by such officer in favor of defendant McEvers. The plaintiff filed formal exceptions to this decision on March 15, 1971, and petitioned the Commission for review.
Accordingly, on August 5, 1971, a review hearing was held before Chairman William C. Ives and Commissioners Richard A. Cowen, Helen C. Foreman, and James Kemp. On September 11, 1972, the Commission issued the disputed order, setting forth the Commission's findings of fact and conclusions of law with respect to ...