"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . ."1

As the volume and scope of union political activity increases, so does the possibility that religious discrimination claims against unions will become a more common occurrence on court dockets.

These familiar words comprise the very first individual right that the framers of our Constitution sought to protect from the federal government, and it is perhaps the individual freedom that Americans hold most dear: the ability hold religious beliefs and practice them free from government coercion.2

The course of America's history, however, demonstrates that individual rights are never absolutely free from challenge. No matter how carefully statutes are crafted, circumstances inevitably arise that challenge individual rights in unexpected, unprecedented ways. Consequently, America's legal history is full of examples in which infringements upon constitutionally protected rights are met with legislation and subsequently argued and settled in courts of law.

As one might expect, American labor relations offer one of the most historically active arenas for such controversies, including threats to the free exercise of religion. The National Labor Relations Act (NLRA) of 19353 and its subsequent amendments demonstrate how such legislation evolves, often resembling a pendulum that swings from one legislative priority to the other.4

Originally enacted to balance inequalities in bargaining power between labor and management interests,5 the NLRA established collective bargaining as the method for determining wages, terms, and conditions of employment for unionized private-sector employees. It also erected the system through which unions and employers can compel workers to either become union members or pay the union an agency fee as a condition of employment.

Once certified, a union acts as the exclusive representative for employees at the bargaining table. Part of the collective bargaining process is the ability of labor organizations to negotiate union "security clauses." These are contract terms, negotiated into a bargaining agreement by the union and management, that enable the labor union to obligate the employees it represents to either 1) join the union as a formal member and pay membership dues and fees; or 2) refrain from formal membership and tender an "agency fee" (usually of an amount equal to full membership dues) to the union as a condition of continued employment.

The reasoning behind this requirement is that unless a union has the uncompromised ability to obtain payment from all the workers it represents in a workplace, some employees will refuse to pay the union for its bargaining services while nevertheless enjoying the benefits of the union's negotiated agreement.

Therefore, employees who fail to either join the union as full members or tender the appropriate "agency" fee can be discharged by the employer at the request of the union.

Such clauses can and do set up conflicts with the individual rights and freedoms recognized in the Constitution. And these have been the source of a series of court rulings over several decades, aimed at protecting individual employee rights. The rulings in these cases define the extent of a non-union member's financial obligation to his exclusive representative.6

Those employees who wish to refrain from formal union membership may do so, depending on the reasons given, as provided by statutory and constitutional mandates. For example, employees who object to funding that part of a union's agenda having nothing to do with collective bargaining done in his or her behalf—including political, social, and ideological causes and activities—can limit their dues or agency fee to cover only their share of the union's costs of collective bargaining, contract administration, and grievance processing.7

The vast majority of union members have no idea that they have such legal recourse when their rights are violated. For this reason, in May 1997, the Mackinac Center for Public Policy published Compulsory Union Dues in Michigan, a report on the need to enforce union members' rights under the NLRA and the Supreme Court's 1988 decision in Communication Workers of America v. Beck. This decision declares that workers may be entitled to a refund of that portion of their dues used by the union for purposes not related to collective bargaining.

For further information on all of the requirements of the Beck case; how to become a Beck objector and to exercise the rights accorded thereto; and the advantages and disadvantages of being a Beck objector, please refer to the Mackinac Center study or visit the Mackinac Center's Web site at www.mackinac.org.

Unfortunately, where an employees' objection to joining or financially supporting a union is motivated solely by religious conviction, the NLRA contains only narrow protections—clear in the case of health-care workers in religiously affiliated hospitals, not so clear in other cases.8 These protections will be discussed in Part II of this report.

But what protections exist for practitioners of some religions, such as the Seventh Day Adventists, who prohibit their practitioners from holding membership in a labor organization? What about other workers, for whom merely associating with a labor union that supports activities offensive to their interpretation of church teachings constitutes a violation of their religious faith?

For workers who find themselves in this situation, there is a far more widely applicable remedy in the religious discrimination clause of Title VII of the federal Civil Rights Act of 1964.9 Employees who have sincerely held religious objections to joining or otherwise supporting a labor organization and make that objection known to the employer and union have a statutory right under Title VII to a reasonable accommodation of their religious beliefs.

Until recently, the relative scarcity of case law dealing with employees' religious objections to union membership or other policies suggested that few employees would ever challenge their unions on the basis of religious belief. But as the volume and scope of union political activity increases, so does the possibility that religious discrimination claims against unions will become a more common occurrence on court dockets.

The purpose of this report is to explain the rights of employees in union shops who harbor sincere religious objections to joining, financing, or otherwise associating with labor unions, and how such workers can defend themselves if the union or the employer or both violate those rights.