POLICY HIGHLIGHTER

Volume 15, Number 11
April 12, 2005

State employee collective bargaining agreements set up likely court challenge

Collective bargaining agreements negotiated between the governor’s office and public-sector unions for 2005-2007 contain language that may spark constitutional challenges from state employees who object to union membership on the basis of religious beliefs.

Title VII of the Civil Rights Act of 1964 governs the obligations of employers and labor unions and requires a reasonable accommodation of the religious beliefs of employees. Employees cannot be forced to financially support a union if doing so would violate the employee’s religious beliefs.

The Washington State Constitution also guarantees the free exercise of religious belief. Article I, Section 11 states: “Absolute freedom of conscience in all matters of religious sentiment, belief and worship, shall be guaranteed to every individual, and no one shall be molested or disturbed in person or property on account of religion....”

Accordingly, if an employee objects to union membership based on sincerely-held religious beliefs, the union must provide a reasonable accommodation of the employee’s beliefs. Where payment of dues is mandatory for all employees affected by an agreement (as with the Washington state employee agreements), the established practice is to allow the religious objector to divert his or her union membership dues to a mutually agreed-upon non-union, non-religious charity.

This practice balances the union’s interest in equally distributing the cost of collective bargaining among affected employees with its obligation to accommodate the religious beliefs of employees.

The agreements negotiated on behalf of Washington state employees, however, fail to accommodate employees who object to union membership on the basis of sincerely-held religious beliefs, and employees are not given a choice in where their money goes, as is the normal practice.

Instead, the negotiated agreements require religious objectors to pay dues to the union, with the union’s “assurance” the money will be used in a manner that does not violate the religious employee’s beliefs.

For instance, the general government agreement negotiated between the State of Washington and the Washington Federation of State Employees for 2005–2007, Article 40.3.B states:

An employee who does not join the Union based on bona fide religious tenets, or teachings of a church or religious body of which he or she is a member, will make payments to the Union that are equal to its membership dues, less monthly union insurance premiums, if any. These payments will be used for purposes within the program of the Union that are in harmony with the employee’s conscience. Such employees will not be members of the Union, but are entitled to all of the representational rights of union members.

Both the general government and the higher education agreements contain similar versions of this clause.

The language used in the collective bargaining agreements presents several concerns.

First, in matters of religious belief, the belief must be sincerely held by the individual, but need not originate from official religious tenets. Frazee v. Illinois Employment Security Dept., 489 U.S. 829 (1989). Furthermore, the Civil Rights Act specifically states that “the term religion includes all aspects of religious observance and practice” and does not limit religious belief to the tenets of a specific denomination. 42 U.S.C. § 2000e (j).

By requiring the objection to be based on “religious tenets” or “teachings of a church,” the language in the collective bargaining agreements suggests that only persons affiliated with an organized religion that teaches against union membership will be permitted an accommodation, thereby completely excluding persons who have legitimate personal religious beliefs.

Such a requirement will result in union officials interrogating the employee’s pastoral caregiver to assess whether the church or religious body instructs members against union membership.

The “accommodation” outlined in the agreements also poses logistical and administrative challenges. Employees may object to union membership under a variety of religious theories, and each individual will present a unique set of moral preferences. The union’s pledge to use the finances for purposes in harmony with the employee’s conscience would necessitate a significant administrative burden to the union for each individual objector.

Finally, the financial records of many private organizations are kept confidential, and unless unions are willing to forego this protection, they will be unable to demonstrate proper accommodation of persons of faith.

Requiring employees of faith to pay the union the full dues amount regardless of religious objections is not a satisfactory alternative for those who object to supporting unions. Unions would more adequately accommodate religious objectors by allowing employees to designate a non-union, non-religious charity to which they can divert union dues, as is the normal practice.

Budget proposals released by Governor Christine Gregoire and both branches of the legislature fund the state employee collective bargaining agreements. While the legislature cannot amend the ratified agreements, there is still time to avert a constitutional challenge by requesting that the governor reopen employee negotiations to address these concerns before approving the budget.

Prepared by: Michael Reitz | Project Director & Legal Analyst | 360.956.3482

Evergreen Freedom Foundation P.O. Box 552, Olympia, WA 98507 Phone: (360) 956-3482, Fax: (360) 352-1874 Email: effwa@effwa.org