Scandia Log Homes, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 716 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Scandia Log Homes, Inc. and Lumber, Production
and Industrial Workers Union Local 2519,
United Brotherhood of Carpenters and Joiners
of America, AFL-CIO. Case 19-CA-10925
September 30, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
Upon a charge filed by Lumber, Production and
Industrial Workers Union Local 2519, United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO (the Union), and duly served on Scan-
dia Log Homes, Inc. (Respondent), the General
Counsel of the National Labor Relations Board,
acting through the Regional Director for Region
19, on April 16, 1979, issued and served on Re-
spondent a complaint and notice of hearing. The
complaint alleges that Respondent violated Sec-
tions 8(a)(5) and (1) and 8(d) of the Act by refusing
the Union's request to discharge three employees
who refused to pay dues to the Union pursuant to
a valid union-security clause. On April 25, 1979,
Respondent duly filed an answer in which it denied
the commission of any unfair labor practices.
Thereafter, on September 17, 1979, Respondent,
the Union, and the General Counsel executed a
stipulation of facts and a motion to transfer the
proceeding to the Board wherein they agreed that
the charge, the complaint and notice of hearing,
the answer, and the stipulation of facts, including
the exhibits attached thereto, constitute the entire
record in this case, and that no oral testimony is
necessary or desired by the parties. The parties fur-
ther stipulated that they waive a hearing before an
administrative law judge, the making of findings of
fact and conclusions of law by an administrative
law judge, and the issuance of an administrative
law judge's decision, and desire to submit this case
for findings of fact, conclusions of law, and a Deci-
sion and Order to be issued directly by the Board.
On November 21, 1979, the Board issued an
order approving the stipulation and transferring the
proceeding to the Board. Thereafter, the General
Counsel and Respondent filed briefs in support of
their respective positions. In addition, the Equal
Employment Opportunity Commission filed a brief
amicus curiae.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record
herein as stipulated by the parties and hereby
makes the following findings and conclusions:
258 NLRB No. 95
I. THE BUSINESS OF RESPONDENT
Respondent is a State of Washington corporation
engaged in the business of manufacturing pre-cut
homes in Woodinville, Washington. During the 12-
month period preceding the issuance of the com-
plaint, a representative period, Respondent, in the
course and conduct of its business operations, sold
and shipped goods or provided services from its
facilities within the State of Washington to custom-
ers outside the State, or sold and shipped goods or
provided services to customers within said State
which customers were themselves engaged in inter-
state commerce by other than indirect means of a
total value in excess of $50,000. In addition, during
this same representative 12-month period, Respond-
ent had gross sales of goods and services valued in
excess of $500,000.
The complaint alleges, the answer admits, and
we find that Respondent is, and has been at all ma-
terial times herein, an employer engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act, and that it will effectuate the policies of
the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and
we find that Lumber, Production and Industrial
Workers Union Local 2519, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, is,
and at all times material herein has been, a labor
organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Stipulated Facts
Respondent is engaged in the manufacture of
pre-cut houses at its production facility in Woodin-
ville, Washington. The Union is the exclusive col-
lective-bargaining representative for Respondent's
eight production and maintenance employees. The
Union's geographical area of jurisdiction is roughly
equivalent to the boundaries of King County,
Washington. As of November 1978 the Union had
557 working members in 21 bargaining units
throughout this area.
In June 1978, during negotiations for a new col-
lective-bargaining agreement, Respondent's presi-
dent informed the Union that Respondent recently
had hired an employee named Leon C. Gottberg,
who, as a Seventh Day Adventist, had religious be-
liefs which precluded him from joining or finan-
cially supporting the Union. In response to this, the
Union offered to accommodate Gottberg by requir-
ing him to pay a sum equivalent to his dues ($12
per month) to the Union, but relieving him of any
716
SCANDIA LOG HOMES, INC.
internal union obligations. It appears that Respond-
ent did not specifically respond to this proposal.
Soon thereafter, the parties signed a contract, effec-
tive from June 1, 1978, to November 30, 1979,
which contained a union-security clause requiring
all unit employees to become union members by
their 31st day of employment.
Since Gottberg refused to join or financially sup-
port the Union, Respondent and the Union held
further discussions about the matter during July,
August, and September. During this 3-month
period, Respondent hired two other employees
who refused to join or financially support the
Union because of their religious beliefs.' In late
September or early October the parties held an-
other meeting in an attempt to resolve the matter.
At the meeting the Union offered the three reli-
gious objectors the same proposal it had discussed
with Respondent in June, but they rejected it.
On November 7, the Union, Respondent, and the
three employees met again, at which time the
Union made a new offer. It proposed that, in lieu
of either joining the Union or paying dues, the reli-
gious objectors would donate the equivalent of
dues to the Union's relief and contingency fund.
The employees did not reject this offer immediate-
ly; instead, they first examined the Union's bylaws
explaining the purpose of that fund. Upon doing so
they rejected the Union's proposal because they
saw little difference between paying dues to the
Union and paying money into a union-sponsored
fund. At or about this time, the religious objectors
supplied the Union with letters from their respec-
tive churches stating each church's religious doc-
trine prohibiting its members from joining or sup-
porting labor organizations.2
On November 8, the Union sent letters to the
three employees informing them of the dues owed
and of the probability of discharge if they failed to
comply with the union-security clause or to accept
the special accommodation offered them. On No-
vember 13, Respondent informed the Union that
the employees agreed only to pay the equivalent of
their dues to a nonprofit, nonreligious charity. The
Union rejected this proposal, maintaining that this
proposed accommodation might set a precedent for
the other five unit employees to refuse to pay dues,
that it did not wish to represent "free riders," and
that it was concerned that the loss of dues from
I In July, Respondent hired Kevin Holsing, a member of the Weslyan
faith, and, on September 22, Respondent hired John Drake, a member of
the Seventh Day Adventist Church.
2 With regard to the bona fides of the employees' religious beliefs,. fn.
13 of the stipulation of facts states:
Neither Respondent nor the Union at any time challenged the good
faith of Drake, Gottberg, or Holsing's religious objections to joining
or supporting the Union: therefore that is not in issue here
three of eight unit employees would damage its fi-
nancial position. On November 21, the Union sent
Respondent a letter demanding that Respondent
terminate the three employees for noncompliance
with the union-security clause. 3 Respondent in-
formed the Union that it would not do so because
it believed that taking such an action would place
it in violation of Title VII of the Civil Rights Act.
Specifically, Respondent asserted that section
701(j) of Title VII, which requires employers to
make reasonable accommodations for the religious
beliefs of employees, required that Respondent and
the Union exempt the three religious objectors
from the union-security clause and allow them to
pay the equivalent of dues to a nonreligious char-
ity.
On November 24, the Union filed the charge in
this case alleging that Respondent violated Sections
8(a)(5) and (1) and 8(d) of the Act by refusing to
terminate the three employees as required by the
union-security provision of the contract.
B. Contentions of the Parties
1. The General Counsel
The General Counsel contends that Respondent's
unilateral refusal to discharge the three religious
objectors, as required by the valid union-security
clause of the contract, constitutes a prima facie vio-
lation of Sections 8(a)(5) and 8(d) of the Act. The
General Counsel emphasizes that Respondent has
not simply refused to adhere to the contract on an
ad hoc basis, but that it has indicated an unwilling-
ness to apply the union-security clause to any reli-
gious objectors. Thus, the General Counsel con-
tends that Respondent has unilaterally modified the
clause.
The General Counsel further contends that Re-
spondent's reliance on Title VII as a defense is
without merit. In this regard, the General Counsel
argues that a series of congressional actions show
that Congress never intended the religious accom-
modation requirements of Title VII to apply to the
enforcement of otherwise valid union-security
agreements.
2. Respondent
Respondent contends that its refusal to discharge
the three religious objectors as required by the
union-security clause of the contract is privileged
by section 701(j) of Title VII. Contrary to the
General Counsel, Respondent argues that Congress
intended the duty to accommodate religious beliefs
The parties stipulated that the Union's letters of November 8 and No-
vember 21 were properly sent according to the collective-bargaining
agreement and met the guidelines set by the Board in such matters
717
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
under section 701(j) to apply to all religious beliefs,
including beliefs which preclude employees from
financially supporting unions, and that the Title
VII policies against discrimination should be given
primacy over provisions of the Act validating
union-security arrangements. Accordingly, this
701(j) duty rests on the Union as much as it does
on the employer. Respondent cites recent Title VII
cases in which three circuit courts of appeals have
so held. Yott v. North American Rockwell Corpora-
tion, et al., 501 F.2d 398 (9th Cir. 1974); Anderson
v. General Dynamics Convair Aerospace Division, et
al., 589 F.2d 397 (9th Cir. 1978); Burns v. Southern
Pacific Transportation Co., et al., 589 F.2d 403 (9th
Cir. 1978); McDaniel v. Essex International, Inc.,
a/k/a Essex Wire, et al., 571 F.2d 338 (6th Cir.
1978); Cooper, et al. v. General Dynamics, Convair
Aerospace Division, Fort Worth Operation, et al, 533
F.2d 163 (5th Cir. 1976).
Respondent further contends that the Union here
failed to fulfill its duty to make a reasonable ac-
commodation. While Respondent notes that the
Union offered to exempt the religious objectors
from membership and to permit them to pay the
equivalent of dues to the Union or to a union-spon-
sored fund, Respondent argues that these proposals
made no accommodation for the three employees
since their religious beliefs proscribed financial sup-
port to a union as well as union membership. Re-
spondent maintains that the Union should have ac-
cepted the employees' offers to pay equivalent
sums of money to a nonreligious charity. While Re-
spondent concedes that this particular accommoda-
tion would require the Union to forgo monthly
dues from the three employees, Respondent asserts
that such a sacrifice would not be an undue hard-
ship within the meaning of section 701(j). In this
connection, Respondent states that, since the Union
has approximately 557 dues-paying members, the
loss of $12 per month from 3 individuals would be
de minimis.'
3. The Equal Employment Opportunity
Commission (EEOC), Amicus Curiae
The EEOC filed a brief in this case because the
General Counsel's position is in direct conflict with
the EEOC's position as set forth in
§1605.2(c)(2)(iv) of its "Proposed Guidelines on
Discrimination Because of Religion."s The EEOC,
' Respondent also contends that the Union's refusal to exempt the three
employees from the union-security clause violated the duty of fair repre-
sentation. In this regard, Respondent argues that the duty under Sec
8(bXIA) of the National Labor Relations Act, requiring unions not to
discriminate invidiously against unit employees, should preclude unions
from enforcing union-security clauses in a manner which violates Title
VII. However, no charge has been filed against the Union on such a
theory. Thus, that question is not before us.
I The applicable portion of these guidelines reads as follows:
in agreement with Respondent, argues that the
NLRA's authorization of union-security clauses
does not excuse unions and employers from the
duty to make reasonable accommodations under
section 701(j). In addition to the arguments raised
by Respondent, the EEOC contends, contrary to
the General Counsel, that the passage of Section 19
of the National Labor Relations Act does not show
that Congress believed section 701(j) of Title VII
had no application to the enforcement of union-se-
curity clauses against religious objectors. Accord-
ing to the EEOC, Congress passed Section 19 to
go beyond section 701(j) because, unlike section
701(j), it specifically provides an absolute exemp-
tion for religious objectors who agree to pay the
equivalent of dues to a charity, and thus precludes
unions from asserting that the nonpayment of dues
would constitute an undue hardship. This measure,
the EEOC contends, was necessary in the health
care field because a large proportion of health care
employees hold religious beliefs against suppport-
ing unions, and, without Section 19, unions possi-
bly would avoid making an accommodation by
successfully asserting that the nonpayment of dues
on such a large scale constitutes undue hardship.
C. Discussion and Conclusions
On December 24, 1980, subsequent to the
Board's approval of the stipulation and the filing of
statements by the parties, the President of the
United States signed into law P.L. 96-593, which
amended Section 19 of the National Labor Rela-
tions Act to state:
Sec. 19. Any employee who is a member of
and adheres to established and traditional
tenets or teachings of a bona fide religion,
body, or sect which has historically held con-
scientious objections to joining or financially
supporting labor organizations shall not be re-
quired to join or financially support any labor
organization as a condition of employment;
except that such employee may be required in
a contract between such employees' employer
and a labor organization in lieu of periodic
dues and initiation fees, to pay sums equal to
such dues and initiation fees to a nonreligious,
nonlabor organization charitable fund exempt
from taxation under section 501(c)(3) of title
Some collective bargaining agreements include a provision that each
employee must join the labor organization or pay the labor organiza-
tion a sum equivalent to dues. When an employce's religious prac-
tices do not permit compliance with such a provision. the labor orga-
nizatiol nust accommodate the employee by permitting him or her
to donate a sum equivalent to dues to a charitable organization other
than one associated with the employcc's religion.
44 FR. 537)6 (Sept 14, 1979).
718
SCANDIA LOG HOMES, INC.
26 of the Internal Revenue Code, chosen by
such employee from a list of at least three such
funds, designated in such contract or if the
contract fails to designate such funds, then to
any such fund chosen by the employee. If such
employee who holds conscientious objections
pursuant to this section requests the labor or-
ganization to use the grievance-arbitration pro-
cedure on the employee's behalf, the labor or-
ganization is authorized to charge the employ-
ee for the reasonable cost of using such proce-
dure.
None of the parties to this proceeding has re-
quested leave to file a supplemental statement con-
cerning the impact of Section 19 on this litigation.
However, under any conceivable construction Sec-
tion 19 was plainly intended to cover and control
situations such as the one presented by the instant
stipulation. Accordingly, we are bound to apply
Section 19 to the stipulated facts before us. At the
outset we note that, as indicated previously, the
parties have stipulated that the employees refused
to pay dues to the Union because of their religious
beliefs. The bona fides of those beliefs stands un-
challenged on this record. Further, no party ques-
tions the existence of the religions to which these
employees adhere, nor does any party question the
existence of these religions' established teachings
which prohibit their members from joining or sup-
porting labor organizations. The exception of Sec-
tion 19, as amended, is inapplicable to the instant
facts since there is no evidence that the parties' col-
lective-bargaining agreement contains a provision
such as is specified in the exception.
Accordingly, we find on the facts before us that
the employees are members of and adhere to estab-
lished and traditional tenets or teachings of bona
fide religions which have historically held consci-
entious objections to joining or financially support-
ing labor organizations, and therefore that Re-
spondent did not violate Sections 8(a)(5) and (1)
and 8(d) of the Act when it refused the Union's
demand pursuant to the union-security clause of
the collective-bargaining agreement that Respond-
ent fire these employees for their refusal to pay
dues to the Union. Therefore, we shall dismiss the
complaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
MEMBER ZIMMERMAN, concurring:
Although I agree with my colleagues that the
complaint should be dismissed, I cannot join in
their opinion. The majority erroneously considers
Respondent's conduct in 1978 in terms of the pres-
ent law, as amended by P.L. 96-593, signed by the
President on December 24, 1980, rather than con-
sidering Respondent's conduct with regard to the
statute extant at the time Respondent refused to
discharge the three employees. However, in view
of the Act's amendment, which renders it impossi-
ble to remedy Respondent's violation of the Act,
the complaint should be dismissed as moot.
The facts, as set forth by the majority, are undis-
puted. Employees Gottberg, Holsing, and Drake
each refused to pay union dues, or to pay an
amount equal to dues to the Union's relief and con-
tingency fund. Each employee refused to join or fi-
nancially support the Union because of his religious
beliefs; the parties stipulated that the three employ-
ees' beliefs were bona fide. When Respondent, the
Union, and the three employees could not agree on
a method by which the employees could fulfill
their union-security obligations, the Union demand-
ed their discharge. Respondent refused to do so,
stating that it believed such action would violate
Title VII of the Civil Rights Act of 1964.6
It is clear that Respondent's unilateral refusal to
apply the valid union-security clause against the
three religious objectors who failed to pay their
dues constituted a modification of the contract and
a prima facie violation of Sections 8(a)(5) and 8(d)
of the Act. 7 Moreover, as the General Counsel
contends, Respondent's reliance on Title VII as a
defense to its refusal to apply the union-security
clause is without merit, since Congress never in-
tended the religious accommodation requirements
of Title VII to apply to the enforcement of other-
wise valid union-security agreements.8
However, by enactment of a revised Section 19,
Congress has rendered any finding of a violation
moot. The Board cannot order Respondent to dis-
charge the three employees, for to do so would di-
rectly contravene Congress' intent in revising Sec-
tion 19. Nor can the Board order Respondent to
post a notice declaring that it will no longer refuse
to apply the union-security clause to employees
such as the three employees here, since such action
has been prohibited by the recent enactment. As no
642 U.S.C. §2000e. et seq.
See, e.g.. House of Fabohrics. Inc., 234 NLRB 1024 (1978); King Electri-
ral Manufacturing Company, 229 NLRB 615 (1977)
' In this regard, I note that the health care amendments of 1974, which
postdated enactment of the religious accommodation provisions of Title
VII, prosided in Sec. 19 for an exemption for religious objectors in the
health care field from valid union-security agreements Enactment of this
limited exemption, coupled w ith the absence of evidence in the legislative
history of the Equal Employment Opportunity Act of 1972 that Congress
intended the religious accommodation provision to supercede Sec 8(a)(3)
of the Act, leads me to the conclusion that Respondent violated the Act
as it stood in 1978
719
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
remedy exists for Respondent's violation, the com-
plaint should be dismissed as moot.