CASE NO. 94-254-RE

ALASKA LABOR RELATIONS AGENCY
3301 EAGLE STREET, SUITE 208
P.O. BOX 107026
ANCHORAGE, ALASKA 99510-7026
(907) 269-4895
Fax (907) 269-4898

CASE NO. 94-254-RE

DECISION AND ORDER NO. 171

Heard on January 10, 1994, in Anchorage, Alaska, before a panel of the Alaska Labor Relations Board, member Stuart H. Bowdoin, present in Anchorage, and members Sally A. DeWitt and Darrell Smith participating by telephone. Hearing Examiner Jan Hart DeYoung presided. The record closed on January 10, 1994.

Appearances:

Evelyn M. Barefoot; Joe P. Josephson, attorney, for respondent Northwest Arctic Education Association; and Saul Friedman for intervenor Northwest Arctic School District.

Digest:

AS 23.40.225, which provides an exemption from the union security provisions of a collective bargaining agreement for bona fide religious convictions, is available only for convictions based on "tenets or teachings of a church or religious body of which employee is a member." Because of the narrow scope of the statute and the broader protection required by the United States Constitution, a labor organization must allow a reduction in the agency fee paid by nonunion members for expenses that cannot be charged to collective bargaining activities. Providing a procedure to allow this reduction would accommodate nonunion members' right not to support views they do not share, but still require nonunion members to pay their share of the expenses associated with collective bargaining services they receive.

DECISION

Findings of Fact

1. Evelyn M. Barefoot is a teacher who has been employed by Northwest Arctic School District since 1985.

2. The Northwest Arctic Education Association is the recognized bargaining representative for the teachers' unit at the District. The collective bargaining agreement between the Association and the District provides for a representation fee to be paid by members of the unit to the Association for the costs of representation.¹

3. By letter dated August 22, 1993, to the District's personnel director Jim Carden, Barefoot applied for a religious exemption from compulsory payment of the representation fee.

4. Barefoot is a member of the Alaska Yearly Meeting of Friends Church and has been for 15 years. The church does not have a tenet addressing union membership and its principles do not specifically prohibit association with or membership in a labor organization.

5. Barefoot's objection to payment of an agency fee is not based on a religious belief against associating with or belonging to any labor organization, but instead, her objection is based on this particular labor organization's support for causes and principles that are contrary to her religious beliefs. See R. Sheldon, letter to Agency (undated) (and attached extracts from Alaska Yearly Meeting of Friends, Discipline, Faith, and Practice).

6. Barefoot believes the National Education Association (NEA), a term she uses to encompass the national, state and local organizations, supports policies contrary to her religious principles. She states that the NEA's position on reproductive freedom is contrary to her views on abortion. Barefoot further believes that the labor relations process stimulates antagonism between employers and employees against Biblical teachings. She disagrees with positions she believes the NEA has taken on creation science and voluntary school prayer, among other matters. She also claims that NEA supports homosexuality and fornication as acceptable lifestyles, contrary to her religious beliefs. E. Barefoot, letter to J. Carden, at 2 (Aug. 22, 1993).

7. On October 19, 1993, Barefoot filed with the Agency a claim for exemption from the Public Employment Relations Act under AS 23.40.225, attaching documentation supporting that claim.

8. On October 26, 1993, the Agency provided a copy of the claim to Bob Ruttman, President, Northwest Arctic Education Association, with notice that any comments on the claim must be received before November 18, 1993.

9. On November 18, 1993, a letter was filed on behalf of NEA and its affiliates, which proposed accommodating the religious views expressed in the claim by requiring that no part of the fees paid be transmitted to the national organization or, alternatively, that NEA would rebate those fees not chargeable to collective bargaining services. On November 26, 1993, NEA-Alaska asked for the opportunity to address the board and to submit written argument.

10. On December 16, 1993, a prehearing teleconference was conducted to address procedures and schedule a hearing, if needed. On December 16, 1993, the Agency issued a prehearing order and notice of hearing setting oral argument before the board and a briefing schedule.

11. The board members assigned to the panel hearing the case are Stuart Bowdoin, Sally A. DeWitt, and Darrell Smith. Panel Assignment Order (Dec. 22, 1993).

12. Northwest Arctic Education Association filed a memorandum on January 7, 1994.

13. On January 10, 1994, the Agency heard argument from the parties. The record in this matter consists of the argument and materials filed by the parties with the Agency. The record closed on January 10, 1994.

Conclusions of Law

1. This Agency has jurisdiction under AS 23.40.225 and 23.40.110(b) to consider this matter.

2. AS 23.40.225 provides an exemption from payment of an agency fee for religious reasons:

Exemption from public employment relations act. Notwithstanding the provisions of AS 23.40.220, a collective bargaining settlement reached, or agreement entered into, under AS 23.40.210 that incorporates union security provisions, including but not limited to a union shop or agency shop provision or agreement, shall safeguard the rights of nonassociation of employees having bona fide religious convictions based on tenets or teachings of a church or religious body of which an employee is a member. Upon submission of proper proof of religious conviction to the labor relations agency, the agency shall declare the employee exempt from becoming a member of a labor organization or employee association. The employee shall pay an amount of money equivalent to regular union or association dues, initiation fees, and assessments to the union or association. Nonpayment of this money subjects the employee to the same penalty as if it were nonpayment of dues. The receiving union or association shall contribute an equivalent amount of money to a charity of its choice not affiliated with a religious, labor, or employee organization. The union or association shall submit proof of contribution to the labor relations agency.

3. The procedures governing AS 23.40.225 appear in 2 AAC 10.300. That regulation sets forth the technical requirements for filing a claim for a religious exemption under 2 AAC 10.300(a). It also provides in subsection(b),

Within 30 days after receipt of the information submitted in accordance with (a) of this section, the agency will declare whether or not the information constitutes proper proof of a right to nonassociation. If the agency finds a lack of sufficient evidence it will, in its discretion, request supplemental information or upon its own motion schedule a hearing after reasonable notice to the employee. The employee may petition, within 30 days after receipt of an agency decision, for a hearing to present additional evidence. Within 30 days after receipt of additional evidence or conclusion of a hearing, the agency will declare its findings.

These procedures do not provide for participation by labor organizations. However, a labor organization has a direct financial interest in a claim for religious exemption under AS 23.40.225 filed by a member of a unit represented by the organization. Any agency fees collected from a claimant successful under that statute may not be retained but must be transmitted to a charity unaffiliated with a labor or religious organization. Because of this financial interest, the labor organization affected by the claim in this case, Northwest Arctic Education Association, was allowed to participate at the hearing.

4. Alaska's statute allowing an exemption for bona fide religious convictions was enacted as an amendment to the Public Employment Relations Act in 1976. AS 23.40.225; Ch. 85, ? 1, SLA 1976. It specifically requires "bona fide religious convictions based on tenets or teachings of a church or religious body" whose members may not belong to or associate with a labor organization. It is similar to section 19 of the Taft-Hartley Act, 29 U.S.C.A. §169 (1993 Supp.), which states:

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 conscientious objections to joining or financially supporting labor organizations shall not be required to join or financially support any labor organization as a condition of employment.

Section 19 has been strictly construed by the National Labor Relations Board and does not include an exemption for personal religious beliefs.² See generally 2 Patrick Hardin, The Developing Labor Law 1499-1500 (3d ed. 1993).

5. The claim made by Barefoot in this case is not based on specific church tenets prohibiting membership or association in a labor organization. It is based on activity of the labor organization in conflict with Barefoot's religious principles.

6. This Agency considers relevant decisions of the National Labor Relations Board and federal courts when making determinations under the Public Employment Relations Act. 8 AAC 97.450(b).³

7. Federal court cases suggest, or even require, additional protection to the religious, free speech, and association rights guaranteed in the First Amendment than to those protected in AS 23.40.225. The United States Supreme Court has held that nonunion members, through the payment of agency fees, may not be required to fund union expenses that are not related to collective bargaining. Abood v. Detroit Board of Education, 431 U. S. 209, 234 - 235, 95 L.R.R.M.(BNA) 2411 (1977). Another court has stated, "the First Amendment protects people from having to put their money where their mouth isn't." Grunwald v. San Bernardino Unified School District, 994 F.2d 1370, 1373, 143 L.R.R.M.(BNA) 2305, 2306 (9th Cir. 1993). A union security clause, such as the representation fee provision in the parties' collective bargaining agreement in this case, may not have the result of requiring an employee to support financially beliefs that are offensive to them for religious or other reasons. The Ninth Circuit Court of Appeals has stated in Grunwald:

Two basic principles emerge from the cases reviewing agency shop agreements: First, nonmembers have an absolute right not to support speech they disagree with, so the union must not, under any circumstances, be able to use their money for ideological purposes. Second, nonmembers have a further First Amendment right to a fair, prompt and effective procedure, both for identifying what sums they are required to pay and, if more than that is collected, for obtaining a refund of the excess.

Id. at 1373, 143 L.R.R.M.(BNA) at 2306 (citations omitted). The procedural safeguards needed are further described in Chicago Teachers' Union, Local No. 1 v. Hudson, 475 U.S. 292, 302-303, 121 L.R.R.M.(BNA) 2793, 2797 (1986) (footnotes omitted):

Procedural safeguards are necessary to achieve this objective for two reasons. First, although the government interest in labor peace is strong enough to support an "agency shop" notwithstanding its limited infringement on nonunion employees' constitutional rights, the fact that those rights are protected by the First Amendment requires that the procedure be carefully tailored to minimize the infringement. Second, the nonunion employee -- the individual whose First Amendment rights are being affected -- must have a fair opportunity identify the impact of the governmental action on his interests and to assert a meritorious First Amendment claim.

8. These constitutional principles have been applied in Alaska to union security clauses under the Public Employment Relations Act. Bender v. NEA-Alaska, case no. F92-010-Civil (order, Sept. 29, 1993), Exh. A. In a dispute brought in the federal district court for the district of Alaska, the court found that NEA was required to provide certain procedural safeguards when considering objections to the payment of agency fees. The court required (1) financial disclosure, (2) opportunity to object to NEA's calculations; and (3) a prompt decision on the objection by an impartial decisionmaker, citing Hudson, 475 U.S. at 303, 121 L.R.R.M.(BNA) at 2798.

9. NEA-Alaska does provide to NEA-affiliated bargaining unit members subject to union security provisions a procedure for objecting to the use of nonmembers' agency fees for ideological causes and to obtain a reduction in fees assessed. See Impartial Union Fee Determination (Sept. 12, 1993), Exh. B. These procedures were reviewed at length in the court's order in Bender v. NEA-Alaska, supra, Exh. A. With the exception of the notice provision, the procedures passed muster. Id.

10. The record does not indicate whether Barefoot has filed an objection under the procedures provided by NEA-Alaska. However, Northwest Arctic Education Association's representative indicated at the hearing that these procedures would be made available to her.

11. While Barefoot has not proven a claim under AS 23.40.225, her religious convictions are protected under the federal constitution. She may not be required under a union security clause in the collective bargaining agreement to support financially principles that she disagrees with on religious or other grounds.

12. Because Barefoot's religious beliefs do not include a prohibition against membership or association with a labor organization, their accommodation should not require a complete release from the obligation to pay fees, such as AS 23.40.225 would provide. Legitimate costs are associated with Barefoot's representation in the Northwest Arctic School District teachers unit that are wholly unrelated to her religious principles. These costs include the costs of negotiating the contract as well as the cost of implementing it. It is reasonable that Barefoot pay a fair share of the expenses of collective bargaining. Abood, 431 U.S. at 219 - 223, 95 L.R.R.M.(BNA) at 3415-2416. Subtracting from Barefoot's agency fee a prorated share of the Association's expenses going toward promoting ideological causes or other expenses unrelated to collective bargaining for the unit should accommodate her religious convictions.

13. To determine chargeable and nonchargeable expenses and the appropriate reduction, we refer Barefoot to the procedures that a labor organization is constitutionally compelled to offer nonmembers under the decisions cited in conclusions of law paragraphs 7 and 8, supra.

14. The procedures provided to Barefoot must be in accord with the principles announced in Hudson and applied in Grunwald and Bender. She must be protected from the risk that her money will be used even temporarily to pay ideological expenses. She must receive adequate information about the proportionate share of expenses assessed in the agency fee. In the information provided Northwest Arctic Education Association must identify expenditures for collective bargaining and contract administration and make available a reasonably prompt decision by an impartial decision-maker. Hudson, 475 U.S. at 303, 121 L.R.R.M.(BNA) at 2798 -- 2799.

15. We conclude that, while Barefoot has not proven a claim under AS 23.40.225, her religious convictions must be protected and she must be accorded an opportunity to object to the fee in proceedings provided by the Northwest Arctic Education Association, NEA-Alaska.

ORDER

1. The claim filed by petitioner Evelyn M. Barefoot under AS 23.40.225 for an exemption from the obligation to pay an agency fee under the Public Employment Relations Act is DENIED;

2. The petitioner has stated religious convictions that are guaranteed protection under the federal constitution and that can be accommodated through impartial union fee determination proceedings;

3. Respondent Northwest Arctic Education Association is ordered to make an impartial union fee determination proceeding available to petitioner; and

4. The Northwest Arctic School District is ordered to post copies under 8 AAC 97.460(b) & (c) of the enclosed notice of this decision no later than 10 days after service of this decision in the workplaces of affected employees at locations, such as employee bulletin boards, reasonably chosen to give actual notice of the decision, or in the alternative, to provide a copy of the notice to all affected employees.

ALASKA LABOR RELATIONS AGENCY

Stuart H. Bowdoin, Board Member

Sally A. DeWitt, Board Member

Darrell Smith, Board Member

APPEAL PROCEDURES

An Agency decision and order may be appealed through proceedings in superior court brought by a party in interest against the Agency and all other parties to the proceedings before the Agency, as provided in the Alaska Rules of Appellate Procedure and the Administrative Procedures Act.

The decision and order becomes effective when filed in the office of the Agency, and unless proceedings to appeal it are instituted, it becomes final on the 31st day after it is filed.

CERTIFICATION

I hereby certify that the foregoing is a full, true and correct copy of Decision and Order No. 171 in the matter of Evelyn M. Barefoot vs. Northwest Arctic Education Association of Alaska, case no. 94-254-RE, dated and filed in the office of the Alaska Labor Relations Agency in Anchorage, Alaska, this 8th day of February, 1994.

Victoria D. J. Scates

Clerk IV

This is to certify that on the 8th day of February, 1994, a true and correct copy of the foregoing was mailed, postage prepaid, to

Evelyn M. Barefoot, Complainant

Joe Josephson, Attorney

Saul Friedman, Attorney

Jim Carden, NASD

Signature

¹When this fee is paid in lieu of union dues by nonunion members, it is often referred to as an "agency fee."

² But see Wilson v. NLRB, 920 F.2d 1282, 135 L.R.R.M.(BNA) 3177 (6th Cir. 1990) (declaring section 19 unconstitutional for confining the exemption to members of particular religious organizations). However, concluding that the remedy in AS 23.40.225 is not the exclusive remedy to nonmembers objecting to payment of agency fees, see conclusion of law paragraph no. 15 infra, should correct any constitutional infirmity.

³See 2 AAC 10.440 (applied before it was repealed and 8 AAC 97.450(b) became effective on July 22, 1993).

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