BEEZER, Circuit Judge:
Based on her religious convictions, Nichols, an employee of the Boeing Company (Boeing), refused to become a member of or pay dues to the International Association of Machinists & Aerospace Workers, Lodge 751 (the Machinists). Nichols proposed to make a charitable contribution in lieu of paying dues. The union sued to compel Boeing to arbitrate the question of whether to discharge Nichols. The district court granted summary judgment in favor of Boeing and Nichols, 662 F.Supp. 1069. We take jurisdiction under 28 U.S.C. § 1291, and we affirm.
A. Facts and Issues
The Machinists and Boeing entered into a collective bargaining agreement that includes a union security provision. That provision requires bargaining unit employees to pay union initiation fees and dues to the Machinists. Nichols, a bargaining unit employee, believes that union membership and support of labor organizations are contrary to her religious convictions. She requested exemption from the union security provision on the basis of her religious objections. Nichols proposed contributing a sum equal to her union dues to a charity. The Machinists rejected Nichols' proposal and requested that Boeing discharge Nichols. Boeing asserted that discharging Nichols would violate Title VII, which requires that employers take reasonable steps to accommodate the religious beliefs of their employees.
The union claims that section 19 of the NLRA, 29 U.S.C. § 169 supersedes Title VII's religious accommodation provision and does not protect the employee. Alternatively, the union contends that Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 105 S.Ct. 2914, 86 L.Ed.2d 557 (1985), compels us to hold that Title VII's religious accommodation provision violates the Establishment Clause of the First Amendment. These are issues of law, reviewable de novo. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).
B. Ninth Circuit Precedent
In 1972 Congress amended Title VII of the Civil Rights Act. The 1972 amendment requires employers to take reasonable steps to accommodate their employees' religious beliefs. The reasonable accommodation duty was incorporated in Title VII's definition of religion:
Section 701(j) of Title VII, 42 U.S.C. § 2000e(j).
In 1981 we held that a substitute charitable contribution, proposed by Seventh Day Adventists who opposed joining or supporting a labor union, was a reasonable accommodation under section 701(j). Tooley v. Martin-Marietta Corp., 648 F.2d 1239 (9th Cir.1981), cert. denied, 454 U.S. 1098, 102 S.Ct. 671, 70 L.Ed.2d 639 (1981). As we said then:
Tooley, 648 F.2d at 1242. We also concluded that exempting the Seventh Day Adventists from the union security clause would not "result" in an "undue hardship" on the union:
Id. at 1243-44. The loss of one employee's dues thus does not inflict undue hardship on a union. To prove undue hardship a union must demonstrate a widespread refusal to pay union dues.
In Tooley we also rejected the Steelworkers' Establishment Clause
Applying the Lemon test in Tooley, we held that section 701(j) was constitutional. First, section 701(j) was enacted to promote Title VII's policy of prohibiting discrimination in the workplace. Prohibiting discrimination is a legitimate secular purpose.
The Machinists contend that section 19 of the NLRA, 29 U.S.C. § 169, enacted by Congress in 1980, supersedes section 701(j) of Title VII. The protections afforded employees' religious beliefs are not as broad under section 19 as they are under section 701(j). Section 19 provides in pertinent part:
29 U.S.C. § 169. Hence under section 19 only employees who are members of "bona fide" religions which have "historically held conscientious objections" to joining unions may contribute to charities in lieu of paying their dues to the union. In contrast, Title VII defines religion as "all aspects of religious observance and practice, as well as belief." 42 U.S.C. § 2000e(j). An employee who sincerely held religious beliefs opposing unions could be relieved from paying dues under Title VII, even if he or she was not a member of an organized religious group that opposes unions. See 29 C.F.R. § 1605.1.
Nichols attends the Bethel Temple. This church permits members to join or support labor unions. Nichols claims, however, that her personal study of the bible has led her to oppose unions on religious grounds. It is uncontested that Nichols sincerely holds these beliefs. Nevertheless, the Machinists assert that Nichols is not exempt from the union security clause under section 19 because she is not a member of a religious organization which has historically objected to union membership. The Machinists concede that section 701(j) would exempt Nichols from the union security clause. They assert, however, that section 19 of the NLRA supersedes section 701(j) of Title VII.
In support of their claim that section 19 supersedes section 701(j), the Machinists invoke the maxim of statutory construction that a more recent specific statute prevails over an earlier and more general statute. This maxim only applies when there is an irreconcilable conflict between the statutes. Chevron U.S.A., Inc. v. Hammond, 726 F.2d 483, 490 n. 8 (9th Cir.1984), cert. denied, 471 U.S. 1140, 105 S.Ct. 2686, 86 L.Ed.2d 703 (1985). No conflict exists if the two statutes serve independent and separate purposes. See Kidd v. United States Department of Interior, Bureau of Land Management, 756 F.2d 1410, 1411 (9th Cir.1985).
It is well-settled that the rights created by Title VII are independent and separate from the rights created by the NLRA. According to the Supreme Court, "the legislative history of Title VII manifests a congressional intent to allow an individual to pursue independently his rights under both Title VII and other applicable state
No irreconcilable conflict exists between section 701(j) of Title VII and section 19 of the NLRA. Congress has created a right to be free from religious discrimination in both statutes. The rights Nichols possesses under both statutes "have legally independent origins and are equally available to the aggrieved employee." Id. at 52, 94 S.Ct. at 1022. Nichols is free to pursue her remedies under Title VII; that her remedies may be broader under Title VII than under the NLRA merely reflects that Congress devised schemes with differing coverage and enforcement provisions, the more thoroughly to eradicate discrimination in the workplace.
The legislative history of section 19 furnishes additional support for Boeing's and Nichols' position. This legislative history indicates that Congress did not intend section 19 of the NLRA to supersede section 701(j) of Title VII. The House Report accompanying H.R. 4774 expressly stated that "[t]he bill would accommodate the religious beliefs of these persons and thereby reconcile the National Labor Relations Act with Section 701(j) of the Equal Employment Opportunity Act." H.R.Rep. No. 496, 96th Cong. 1st Sess., 2 (1980) (emphasis added), U.S.Code Cong. Admin. News 1980, pp. 7158, 7159. As recently observed, "It is inconceivable that Congress would, in an amendment intended to increase religious freedom, act to foreclose individuals from protecting that freedom under Title VII. The only conclusion to be drawn from the legislative history is that Congress was, as it stated, attempting to reconcile the NLRA with Title VII...." EEOC v. Davey Tree Surgery Co., 671 F.Supp. 1260, 43 Fair Empl.Prac.Cas. (BNA) 1177, 1180 (N.D.Cal.1987).
The Machinists rely on isolated statements made by Representative Eckhardt, who recognized that Title VII provided wider scope for religious accommodation than did the NLRA. Eckhardt opposed the section 19 amendment
In Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 105 S.Ct. 2914, 86 L.Ed.2d 557 (1985), the Supreme Court held that a Connecticut statute that provided employees with an absolute right not to work on their Sabbath violated the Establishment Clause. The Court concluded that the Connecticut statute's "unyielding weighting in favor of Sabbath observers over all other interests contravenes a fundamental principle of the Religion Clauses." Id. at 710, 105 S.Ct. at 2918. Specifically, the Court condemned the statute's command that "religious concerns automatically control over all secular interests at
The Machinists contend that Thornton dramatically alters the law governing Establishment Clause challenges to religious accommodation statutes. In light of Thornton, the Machinists assert, this court must reevaluate the holdings we made in Tooley.
Thornton does not undermine Tooley. The Connecticut statute invalidated by the Supreme Court in Thornton contravened the Establishment Clause because of a complete failure to take into account the interests of the employer and other employees who did not observe a Sabbath. Unlike the statute in Thornton, section 701(j) does not give an unqualified right to employees to have their religious beliefs accommodated. By its terms section 701(j) is flexible, requiring only those accommodations which are reasonable and which may be accomplished without undue hardship. In this case, if there was a widespread refusal to pay union dues, Nichols' charitable contribution would be disallowed. She would be required to pay the union. Tooley, 648 F.2d at 1243-44. Thus 701(j) does not exhibit the defect of the Connecticut statute; here the substituted charitable contribution acknowledges legitimate interests of the Machinists and Boeing.
Justice O'Connor, concurring in the Court's judgment in Thornton, expressly stated that she did "not read the Court's opinion as suggesting that the religious accommodation provisions of Title VII of the Civil Rights Act of 1964 are ... invalid." 472 U.S. at 711, 105 S.Ct. at 2919. In addition, Supreme Court cases after Thornton indicate that section 701(j) is alive and well. See Hobbie v. Unemployment Appeals Commission, ___ U.S. ___, 107 S.Ct. 1046, 1047 n. 1, 94 L.Ed.2d 190 (1987); Ansonia Board of Education v. Philbrook, ___ U.S. ___, 107 S.Ct. 367, 93 L.Ed.2d 305 (1986). In Ansonia the Court discussed the scope of an employer's obligations under section 701(j). If the Court implicitly had struck down section 701(j) in Thornton, the discussion of section 701(j) in Ansonia would have been academic.
Thornton does not represent a radical departure from previous Establishment Clause jurisprudence, and Thornton did not implicitly strike down section 701(j). Accordingly, we need not reconsider the holdings we made in Tooley: the substituted charitable contribution is a reasonable accommodation under section 701(j), and section 701(j) does not violate the Establishment Clause.
Nichols asserts she is entitled to fees under Fed.R.Civ.P. 11 and Fed.R.App.P. 38 because the Machinists' claim is barred by res judicata and collateral estoppel. The Machinists concede that they previously litigated the constitutionality of the religious accommodation provision of Title VII with Boeing in an earlier lawsuit involving a different employee. This lawsuit preceded the Supreme Court's decision in Thornton.
Res judicata is inapplicable here. Under res judicata a judgment on the merits in a prior suit bars a second suit, involving the same parties or their privies, based on the same cause of action. See Nevada v. United States, 463 U.S. 110, 129-30, 103 S.Ct. 2906, 2917-18, 77 L.Ed.2d 509 (1983); Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n. 5, 99 S.Ct. 645, 649 n. 5, 58 L.Ed.2d 552 (1979). The Machinists' suit against Nichols does not involve the same parties or the same cause of action as the previous lawsuit.
In short, the Machinists' arguments were not frivolous under Fed.R.App.P. 38, and the Machinists' counsel satisfied the Rule 11 requirement of "a good faith argument for the extension, modification, or reversal of existing law." Fed.R.Civ.P. 11.
In Tooley v. Martin-Marietta Corp., 648 F.2d 1239 (9th Cir.), cert. denied, 454 U.S. 1098, 102 S.Ct. 671, 70 L.Ed.2d 639 (1981), we held that charitable contributions in lieu of union dues were a reasonable accommodation under Title VII. We also held that Title VII's religious accommodation provision did not contravene the Establishment Clause. Section 19 of the NLRA does not supersede Title VII's religious accommodation provision. Congress, in enacting section 19, intended the NLRA to parallel Title VII, not to supersede Title VII. The Supreme Court's holding in Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 105 S.Ct. 2914, 86 L.Ed.2d 557 (1985), clarifies the law but does not undermine Tooley. Accordingly, we affirm the judgment of the district court and deny Nichols' fee request.