Appeal from the United States District Court for the Eastern District of Wisconsin. No. 75-C-220 -- Robert W. Warren, Judge.
Before Swygert, Cummings and Pell, Circuit Judges.
Plaintiff Darrel C. Nottelson brought this action against his employer, defendant A. O. Smith Corporation (Smith), and his union, defendant Smith Steel Workers D.A.L.U.*fn1 19806, AFL-CIO (Union), under 42 U.S.C. § 2000e-5(f)(1) and (3), alleging inter alia that defendants had discriminated against plaintiff because of his religion in violation of Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. § 2000e et seq.), in that they failed "reasonably to accommodate" within the meaning of Section 701(j) of that Act (42 U.S.C. § 2000e(j), note 4 infra) to plaintiff's religious objection to the payment of union dues. The district court ruled in favor of plaintiff on this claim with respect to both defendants and they have appealed. We affirm with one slight modification of the computation of damages.
Plaintiff, a resident of Menominee Falls, Wisconsin, was a production worker at Smith from October 30, 1947, to July 11, 1975, and a member of the Union from October 30, 1947, to April 15, 1975. The Union is the exclusive bargaining agent for the collective bargaining unit in which plaintiff was employed, and the collective bargaining agreement between Smith and the Union contains a union security clause requiring membership in the Union as a condition of continued employment with Smith.
In May 1966, plaintiff joined the Seventh-day Adventist Church, which teaches that it is morally wrong to be a member of or pay dues to a labor organization. In December 1974, plaintiff informed the Union that he could no longer in good conscience support it financially because of his religious convictions and requested the Union to accommodate his religious objection to the payment of union dues by permitting him to pay an equivalent sum to a non-religious, non-union charity. He ceased paying his dues on January 1, 1975, and to show his good faith began making contributions to the American Cancer Society. The Union refused the requested accommodation and in March 1975 notified plaintiff that he would have to pay his delinquent dues or be discharged from Smith pursuant to the union security clause in the collective bargaining agreement. Smith indicated that it was willing to make an accommodation but not without the Union's approval. Plaintiff thereupon filed a charge of unlawful employment practices with the Equal Employment Opportunity Commission (EEOC) office in Milwaukee, Wisconsin, and the EEOC referred the matter to the appropriate Wisconsin agency on April 2.
On April 15, the Union expelled plaintiff from its membership for failure to pay dues, and on April 17 informed him that he would be discharged. On April 23, plaintiff initiated the present litigation, seeking temporary and preliminary injunctive relief pending final disposition of the charges filed with the EEOC. Smith discharged plaintiff on April 24. On April 30, Judge Warren issued a temporary restraining order which, with extensions, restored plaintiff to his job until July 10. On that date, Judge Warren dismissed the action for want of a present EEOC right-to-sue letter to plaintiff, without prejudice to reinstatement upon receipt of such a letter. 397 F. Supp. 928.
The Union again insisted on plaintiff's discharge and Smith complied, informing plaintiff not to come to work on July 11. He has not returned to employment at Smith since that date. Smith also refused, because of the Union's contractual objection, to defer plaintiff's termination until his six weeks' vacation time was used but did pay him for that period. The EEOC issued plaintiff a right-to-sue letter on July 21, and on October 29, plaintiff filed his second amended and supplemental complaint against defendants pursuant to an October 22 order granting his July 22 motion for leave to do so.
In Count I Smith and the Union were alleged to have discriminated against plaintiff because of his religion in violation of Sections 703(a)(1)*fn2 and 703(c)(1)*fn3 of the Civil Rights Act of 1964 respectively in that they had failed to show that they could not reasonably accommodate plaintiff's religious observance "without undue hardship" as required by Section 701(j)*fn4 of the Act. The Union was also alleged to have violated 703(c)(3)*fn5 of the Act by enforcing the union security provision of the collective bargaining agreement so as to cause Smith to discriminate against plaintiff on the basis of religion. Plaintiff therefore sought reinstatement, actual damages of $50,000, exemplary damages of $100,000 and reasonable attorney's fees (then supposedly amounting to $10,000).
In Count II, plaintiff sought identical relief, alleging that the union security clause of the collective bargaining agreement had been enforced under the sanction of the National Labor Relations Act (NLRA) in contravention of the First, Fourth, Ninth, and Fourteenth Amendments.*fn6 Sections 8(a)(3) and 8(b)(2) of the NLRA (29 U.S.C. §§ 158(a)(3) and 158(b)(2)) recognize the validity of union security clauses and the concomitant right of a union to demand discharge of an employee for failure to pay dues.
The Union in its responsive pleadings and at trial took the position that enforcement of the union security clause against plaintiff was protected under the NLRA and therefore did not violate Title VII and that Title VII's Section 701(j), as sought to be applied, violated the Establishment Clause of the First Amendment. Smith asserted the affirmative defense of undue hardship, claiming that it had done all it could to accommodate plaintiff without causing the Union to initiate arbitration proceedings to enforce the union security clause and to file an unfair labor practice charge to the same effect under the NLRA.
The district court's findings of fact and conclusions of law are contained in three memorandum opinions reported at 423 F. Supp. 1345, 481 F. Supp. 756, and 489 F. Supp. 94. Judge Warren held first, in denying the Union's motion to dismiss Counts I and II, that the union security provision was not a defense to the Title VII claim. 423 F. Supp. at 1347-1348. Subsequently, he reaffirmed and clarified this ruling in response to defendants' post-trial motion for reconsideration, holding that the anti-discrimination provisions of Title VII take priority over the pro-union security clause provisions of the NLRA. 489 F. Supp. at 96-97. Following the trial, Judge Warren entered his findings that defendants could have accommodated plaintiff's charity-substitute proposal without undue hardship and that they had therefore violated Title VII by failing to do so. 481 F. Supp. at 759-760. He also held, in denying defendants' motion to reconsider, that Section 701(j) does not violate the Establishment Clause. 489 F. Supp. at 97-98. He declined to decide the constitutional questions raised by plaintiff in Count II of the amended and supplemental complaint because plaintiff had been afforded complete relief on the statutory claim set forth in Count I. 489 F. Supp. at 97.*fn7
The final judgment, entered on April 18, 1980, awarded plaintiff back pay, attorney's fees and costs, to be borne equally by Smith and the Union. Smith was ordered to reinstate plaintiff no later than April 28, 1980; plaintiff was ordered to contribute to a non-religious charity to be agreed upon by plaintiff and the Union "an amount equal to the union dues he would have owed had he continued to work at Smith during the relevant period;" and the Union was enjoined from interfering with the judgment by filing a grievance with the National Labor Relations Board. 489 F. Supp. at 98-99.
The Union and Smith filed notices of appeal on May 9 and 15 respectively, and the cases, docketed here as Nos. 80-1678 and 80-1705 respectively, were consolidated by this Court pursuant to motions by the parties. On June 19, we granted leave to the EEOC to intervene on plaintiff's behalf.
II. The Duty to Accommodate
It is undisputed that Title VII requires unions and employers to make a reasonable accommodation of an employee's religiously motivated conduct or to show that to do so would work an undue hardship. Smith concedes that it was so required in this case. The Union, however, has adamantly maintained from the outset of the events leading to this litigation that Title VII is preempted here by the NLRA. As noted, Sections 8(a)(3) and 8(b)(2) of the NLRA permit an employee in a union shop to be discharged for failure to pay union dues. The thrust of the Union's position is that these provisions represent a Congressional determination of the balance to be struck between the national policy of promoting labor ...