In 1980, Congress sought to make the religious belief exemption more comprehensive by expanding Section 19 to include all employees, not just those who worked only for health-care institutions. Had it held up in court, the 1980 law also would have required that employees qualified for the exemption reimburse the union bargaining agent for the cost of representation in a grievance or arbitration process undertaken in behalf of the employee.
While it is laudable that Congress sought to make the religious belief provision universal in its application, unfortunately in 1990 the Sixth Circuit Court of Appeals held that Section 19 grants a benefit on the basis of membership in a religion, and therefore violates the First Amendment of the U.S. Constitution. The court said it is not possible to avoid this constitutional defect by construing the statute as applying to all employees having religious objections to unions, without regard to whether these employees belong to a religion, body or sect.87
This does not mean that either the 1974 or the 1980 amendments to the NLRA have been invalidated. Since there have been no other relevant federal court cases issued since the Wilson decision, and since the laws have neither been repealed nor declared unconstitutional by the U.S. Supreme Court, the exemption still represents good law for those who qualify for a remedy that the NLRB can provide.
The NLRB is charged by law with enforcing all the provisions of the law it administers. It does not selectively determine what protections are available to employees. The NLRB also does not construe any aspects of its statute as unconstitutionalthat is the function of the nation's highest court. While the NLRB may accept the Wilson decision as the law of the 6th Circuit, the statutory protections for religious objectors still apply in all other states.
The lack of any NLRB activity may be because most religious objectors are unaware of their NLRA statutory protections. It may also be true that those who are aware and eligible are protected by collective-bargaining contract provisions which recognize their statutory options, hence resort to the NLRB has been unnecessary. Perhaps the requirement of "actual membership" in a bona fide religious order that objects to union membership and/or payment of dues has kept many objectors who hold merely personal religious objections from filing suit.
In short, employees who are members of a religious sect that objects to union membership and/or payment of union dues as conditions of employment have a legal remedy available in the NLRA's 1974 and 1980 amendments, although these remedies are subject to legal challenge.
Such persons should contact the nearest NLRB office and ask for assistance in evaluating his or her particular circumstance. The advice is free and if the NLRB pursues your unfair labor practice claim, the legal representation is at no cost to you.