Tuesday, July 29, 2014

The case for a conscience exemption, Part One

In my last post, I raised the not quite hypothetical point of someone who would prefer the religious exemption from the fair-share requirement of the union contract to be expanded to include a conscience exemption.  In other words, instead of having to aver an objection to the union on religious grounds, one could simply object on the grounds of not supporting the union.  I believe that as long as a few ground rules are maintained, the union should consider conceding such an exemption the next time it negotiates a contract, or sooner if at all feasible.

In this blog post, I'll advance what I call "it's the right thing to do" type of reasons.  In a later blog post, I'll try to demonstrate why expanding the conscience exemption is not only the right thing to do, but also a good tactical thing, for the union, to do.

To start, let's look more closely at the religious exemption.  In both the Non-tenure-track and tenure-track contracts, the relevant portion can be found in Article 8, subsection H, sub-subsection 3.  The language reads in part as follows:
In the event that any employee covered hereby is precluded from making a Fair Share involuntary contribution...on account of bona fide religious tenets or teachings of a church or religious body of which that employee is a member, that employee shall have the right to refuse to allow said involuntary deductions; provided, however, that said right to refuse shall continue only so long as the employee makes contributions at least equal in amount to the Fair Share Fee amount to a non-religious charitable organization mutually agreed upon by the employee so refusing and the Union...The employee shall, on a monthly basis, furnish satisfactory evidence to the Union that such payment has been made.
It is important to note here what this exemption does and does not do.  It does not absolve the employee from paying.  It's not a "free ride," although from the perspective of the union's coffers it probably seems as such.  Also, the member of the bargaining unit who has to apply for the exemption has to go out of his or her way to get it, that is, he or she has to affirmatively state and seek out the exemption.  It's an "opt out" provision, and only a partial one at that, because, again, the bargaining unit member still has to pay.  It also doesn't specify what makes a religious teaching or tenet "bona fide."  There is probably a tradition of contract interpretation and jurisprudence that gives insight on how to determine this point, and that tradition probably gives a lot of deference to a person's subjective sense of what his/her religion requires.  But it leaves unstated how a bona fide belief is to be stated, affirmed, and demonstrated.  Finally, it makes the union responsible for ensuring compliance.

I don't know exactly why the religious language was included.  It is probably standard fare when it comes to most states' automatic dues deductions and fair-share requirements, informed by the American tradition of respecting religious conscience.  But I think the exemption should be expanded beyond the religious.

One reason for expanding it is that the provision implicitly gives a privilege to religious belief that automatically excludes people who do not profess any religion, or who profess a religion that has no official position on unionization.  I suppose in order to accept this as a reason for expanding the exemption, one must accept a certain set of assumptions about whether certain beliefs or non-beliefs ought to be privileged by policy.  I join the side of not privileging religious belief as such, although a conscience exemption could accommodate a religious exemption while the religious exemption cannot accommodate the conscience one.

A second reason is difficulty in determining who has a "bona fide" religious belief about unions.  As I mentioned above, what counts as "bona fide" might be tricky unless it means in practice "whatever the person seeking the exemption claims."  If in practice it means that, then the "bona fide" provision is essentially meaningless as far as any attempt to verify compliance goes, although perhaps an exemption-seeker might not be willing to lie about such a thing.  If in practice it means something more--perhaps a note from one's clergyperson, or a hearing before an arbitrator about one's religious beliefs--then the "bona fide" provision potentially involves the union in a task for which it is ill-suited:  investigating and passing on the legitimacy and sincerity of a person's most deeply held beliefs.

I say the above is a reason for expanding the exemption because unions function primarily to represent workers' on-the-job interests and not the state of their soul.  At least, that is its most widely accepted role, the role about which most people agree unions should exercise.  There, of course, those who believe unions could and should  transform society and perhaps exercise a deeper role in the consciousness of its members.  Less controversial (but still controversial), some believe unions should lobby lawmakers for policies deemed favorable to those whom they represent.   But even those who disagree with that "movement" view and the pro-lobby view--and even those who dislike unions generally--seem to agree that if unions are to exist at all, their principal role is to represent on-the-job interests.

The two reasons above are probably best characterized as, "it's the right thing to do" type of reasons.  I would like those reasons to appeal to what I believe might be a shared understanding on numerous points:  whether the type of privileges accorded to religion ought to end with religion belief or expand to conscience andwhether the union really ought to concern itself with whether a belief is "bona fide," and, indirectly. 

At the very least, even if my readers disagree with me on whether the above reasons are persuaded, and even if the readers don't share my assumptions, I wish them to acknowledge a difficulty with fair-share provisions.  Those provisions compel people to pay a part of their salary they would not otherwise want to pay.  In some cases, it's a question of laziness and/or temptation.  People who otherwise support the union or (in my case) do not wish to free ride, might inadvertently let their membership lapse or appreciate a slightly buffier paycheck.  In other cases, it's a question of someone with a principled opposition.  In those cases, they union has failed to convince that person to support it.

I suggest that even if we concede it is right to demand involuntary contributions, it's not 100% right.  There's a little bit of the appeal to force there.  And if one--following as I honestly believe good reasons--believes fair-share is necessary, there ought to be a little bit of recognition that something is being taken from the unwilling.

In a later blog post, I'll explain why expanding the exemption is not only the right thing to do but also why it may be tactically a good thing for the union to do, provided it's done along certain ground rules that are similar to what is already in place for administering the religious exemption.

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