Ned Resnikoff has a piece today at MSNBC.com opining that the Supreme Court’s recent decision in Burwell v. Hobby Lobby Stores, Inc., will provide employers a means of avoiding unionization:
By declaring that “closely held” corporations may hold religious beliefs, the court may have provided businesses with a new tool for crushing workplace unionization drives. In addition to declaring themselves exempt from contraception mandates and non-discrimination laws, religious employers may soon be able to argue for an exemption from collective bargaining laws.
All you need is one employer saying, ‘My religious beliefs tell me I shouldn’t collectively bargain,’” said Alex Luchenitser, associate legal director for Americans United for Separation of Church and State. If an employer takes the National Labor Relations Board (NLRB) to court and uses that argument, it could set the table for a major court battle over the future of union rights in nominally religious workplaces.
However, it is very unlikely that Hobby Lobby can be used by employers to escape their obligations under the National Labor Relations Act. First, the employer would have to establish that it holds a “sincere religious belief” against collective bargaining. How many religions have specifically addressed the religious virtues (or lack thereof) of collective bargaining, let alone expressly forbade it or otherwise discouraged its followers from engaging in it? As such, employers would likely have an uphill battle in establishing a “sincere religious belief.”
Second, even if the employer could meet that burden, the courts would likely find that collective bargaining under the NLRA ”is in furtherance of a compelling governmental interest; and … is the least restrictive means of furthering that compelling governmental interest.” The problem for the government in Hobby Lobby was the fact that Department of Health and Human Services (HHS) ”itself has demonstrated that it has at its disposal an approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious beliefs.” Unlike the HHS, the NLRB does not have at its disposal a less restrictive alternative to collective bargaining. One could argue that interest arbitration is an alternative to collective bargaining that could be employed by amending the NLRA, but interest arbitration is rarely a better option than traditional collective bargaining for private employers. As such, employers would not advocate such an alternative, and they would be hard pressed to identify another viable alternative that they prefer to collective bargaining.
Mr. Resnikoff’s article includes a quote from a statement by the National Right To Work Legal Defense Foundation regarding the Pacific Lutheran University case currently before the NLRB, suggesting another means for an employer to use Hobby Lobby for objecting to collective bargaining on religious grounds:
“If the NLRB recognizes Local 925 as the adjuncts’ exclusive bargaining agent, union officials will be empowered to negotiate over terms and conditions of employment with Pacific Lutheran University,” said the Legal Defense Foundation in a statement. “Those negotiations could force university administrators to make concessions that contradict the school’s religious mission, such as expanding access to abortion under the university’s health care plan.”
However, that argument likely finds no support under Hobby Lobby because while the union could certainly make proposals that contradict the employer’s religious beliefs, such as access to abortion, the NLRA does not require employers to agree to any proposal. Employers could simply reject the proposal by explaining to the union why it cannot agree to it. Therefore, an employer like Hobby Lobby challenging its collective bargaining obligation on those grounds would have difficulty proving that collective bargaining imposes a “substantial burden on the exercise of religion.”
Consequently, while Hobby Lobby might encourage closely-held corporations to assert a religious objection to collective bargaining in NLRB proceedings, it is unlikely that either the NLRB or the courts will find any merit to those objections.