Later this year it is all but certain that union reps’ lives will be a little more complicated—and maybe a lot more. The Supreme Court is all but certain to substantially increase the pressure on employers to accommodate employee requests to practice their religion.  Under the current Supreme Court precedent, it is almost impossible for an employee to demand a reasonable accommodation that requires a collective bargaining agreement (CBA) provision be waived or ignored so s/he can participate in some religious activity. We expect that this Court will make it a lot easier to insist that bargaining agreements be overridden so employees can participate in religious activity. Here are a few examples of what we expect to see soon after the Court’s new decision which led us to use the war analogy.

Example #1– A handful of employees insist that schedules be changed so that someone other than themselves works on Christmas and New Years irrespective of the CBA’s rotation of work on those days by seniority. Their need to worship is more important than negotiated systems of fairness.

Example #2 – While the CBA AWS article stipulates that only the two most senior employees in a group have the right to take Fridays off as AWS days, the two newly hired Muslim employees insist they be given the only two Friday AWS slots so they can attend a weekly church planning council meeting. Check out this related Fedsmill post.

Example #3 – The CBA stipulates that vacancies in an office to be filled by reassignment go to the most senior qualified applicant; however, a junior employee insists he get a particular reassignment because it will enable him to teach his church’s Wednesday night youth lessons. Check out this relaated Fedsmill post.

Example #4 – Despite the CBA provision spelling out that summer annual leave requests will be granted by seniority, a junior employee insists that she always be granted the week of July 4th so she can attend her church’s summer assembly camp. Check out this related Fedsmill post.

Example #5 – A newly hired employee asks that she not be bound by the CBA provision requiring employees to use the steward designated for their work group because that steward is a Muslim and her religion urges members to work only with fellow Christians.

Example #6– Although Training Instructor assignments are well-known developmental opportunities earned through performance scores, a handful of employees demands that two openly gay instructors never be assigned to work with their group because their religion condemns the LGBTQ lifestyle. Check out this related Fedsmill post.

Telework, Alternative Work Schedules, Overtime, Holiday Assignments, Reassignments, Hours of Work, Leave and a half-dozen other benefits normally distributed by the rules of a negotiated agreement are all likely to be tossed aside under the pending Supreme Court ruling. That will put the union in the position of having to decide whether to resist and grieve to enforce the negotiated rules–or tell some member that even though he has a CBA right to something he will have to give it up so some other employee can: a- attend a religious service, b- participate in running their church’s activity, c- teach weekly youth groups or summer camps, d- make pilgrimages, e- avoid contact with religiously undesirable co-workers, f- attend choir practice, etc.

We have absolutely no advice on how to handle this future. Does the union respond by going to arbitration to litigate whether overriding the CBA was an undue hardship?  Does it demand to bargain and thereby postpone an accommodation until an agreement is reached implementing an accommodation? Does it have to worry about being liable for money damages if a refusal to accommodate is illegal?  Should it demand a role in the interactive exchange process employers must conduct when a request is made? Stay tuned.

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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