(concurring in part and dissenting in part):
I.
I concur with the majority’s disposition of the indemnity claim. Clearly, the district court erred in requiring the Union to indemnify the employer for his litigation costs.
II.
I specially concur with part of the majority’s decision concerning the employees’ Title VII claim. With regard to this claim, the parties on appeal have presented us with the question of whether Congress, by enacting and later amending Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq., provided an exception to the application of the agency shop provisions for employees who have religious objections to labor unions. See Pet. Brief at 9 n. 11; Resp. (IAMAW) Brief at 11. This question, however, actually involves two separate issues: (1) Does Title VII impose a duty on employers and unions to accommodate the religious beliefs of employees and (2), if such a duty exists, does its scope include granting employees with religious objections to labor unions an exemption from paying dues to a union which has negotiated an agency shop agreement with the employer pursuant to the National Labor Relations Act (NLRA), now appearing at 29 U.S.C. § 158(a)(3) (1970).1 The district court dismissed the Title VII claim on the ground that the employees’ religious ideas were specious and that the court saw no conflict between their religious beliefs and the union security agreement. I agree with the majority that the district court’s reasoning was not permissible. The district court itself found that, “All of the plaintiffs are sincere in their religious convictions and are now conscientiously committed to their church’s position that its members should not belong to or contribute financial support to a labor organization.” (App. 94.) This finding establishes that plaintiffs’ religious beliefs are indeed incompatible with the agency shop agreement, and the district court should not have analyzed the logic of the assumptions underlying these beliefs. United States v. Seeger, 1965, 380 U.S. 163, 184-185, 85 S.Ct. 850, 863, 13 L.Ed.2d 733, 747. Given this conflict between employees’ religious beliefs and a job-related requirement, the court should have proceeded to decide if the Union and employer have a duty to accommodate under Title VII and, if so, the scope of this duty in light of the Union’s right under the NLRA to contract with the employer for an agency shop.
*174III.
Duty to Accommodate
In 1964 Congress passed Title VII of the Civil Rights Act, a statute making it an unlawful employment practice for an employer to discriminate against his employees on the basis of race, color, religion, sex, or national origin. 42 U.S.C. § 2000-2(a) (1970). The initial guidelines issued in 1966 by the Equal Employment Opportunity Commission (EEOC)2 interpreted the Act’s prohibition against discrimination on religious grounds as imposing a duty on employers to accommodate the “reasonable religious needs of employees and, in some cases, prospective employees where such accommodation can be made without serious inconvenience to the conduct of the business.” 29 C.F.R. § 1605.1(a)(2). The guidelines went on to state, however, that the employer was free to establish a normal work week generally applicable to all employees, “notwithstanding that this schedule may not operate with uniformity in its effect upon the religious observances of his employees.” 29 C.F.R. § 1605.1(a)(3). In 1967 the EEOC adopted new guidelines reinterpreting the employer’s duty not to engage in religious discrimination. These new regulations contained no reference to the normal work week schedule and included a provision placing on the employer the burden of proving that an undue hardship renders the required accommodations to the religious needs of the employee unreasonable. 29 C.F.R. § 1605.1(c). These changes did not go without notice in the Sixth Circuit’s opinion in Dewey v. Reynolds Metals Co., 6 Cir. 1970, 429 F.2d 324, a case involving the discharge of an employee for refusing to work on the Sabbath. Although the court held that the 1966 guidelines applied to the case under review, it went on to observe that the statute (42 U.S.C. § 2000e-2(a)) did not require an employer to make reasonable accommodation to the religious needs of his employees and thus questioned the authority of the EEOC to adopt such a regulation. 429 F.2d at 331 n. 1. The Supreme Court affirmed by an equally divided vote. 401 U.S. 932, 91 S.Ct. 919, 28 L.Ed.2d 212 (1970).
The Randolph Amendment to the Equal Employment Opportunity Act of 1972 was a direct response to the Dewey decision. This amendment, sponsored by Senator Randolph of West Virginia, defined “religion” as follows:
“(j) The term ‘religion’ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.” 42 U.S.C. § 2000e(j).
The Union contends that, despite the broad language used in this definition, the Randolph Amendment was intended to have a fairly limited purpose. Reference is made to the legislative history where Senator Randolph, a member of a small sect known as Seventh-Day Baptists,3 told his fellow Senators of his concern over “the inability of employers on some occasions to adjust work schedules to fit the requirements of the faith of some of their workers.” 118 Cong.Rec. 705 (1972). Seizing on this language, the Union contends that there is a duty to accommodate only those religious beliefs concerning observance of the Sabbath and related problems. Indeed, the regulation issued by the EEOC interpreting Title VII’s proscription against religious discrimination is titled “Observation of the Sabbath and Other Religious Holidays.” 29 C.F.R. § 1605.1 (1975). The official position of the Commission, however, is that Title VII does require employers and unions to accommodate an individual’s religious belief against financially contributing to a labor organization. The language of the statute (“All aspects of religious observance and *175practice, as well as belief”) does indeed extend beyond Sabbatarianism to include any belief that can be termed “religious.” Authority for the proposition that this duty to accommodate attaches to religious objections against labor unions can be found in the Ninth Circuit case of Yott v. North American Rockwell Corporation, 9 Cir. 1974, 501 F.2d 398. Although the issue was uncontested, Title VII has been applied in this Circuit to a situation where an atheist was forced to resign her job as a result of having to attend business meetings where devotionals were given. Young v. Southwestern Savings and Loan Association, 5 Cir. 1975, 509 F.2d 140. In light of the above, I think that Title VII does place a duty of accommodation on the employer and also on the Union.
IV.
Scope of the Duty to Accommodate
A. Hardship
Under the provisions of the statute, the duty to accommodate is limited by an exception for hardship. 42 U.S.C. § 2000e(j) provides:
“. . . unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.”
Although, for the reasons stated herein at length, I am of the view that the duty to accommodate does not include an exemption to paying union dues under an agency shop agreement, since the Court holds otherwise, I concur in Chief Judge Brown’s concurrence on hardship to the Union.
While § 2000e(j) refers only to the hardship of the employer, to my way of thinkihg, the hardship provision was intended to modify the duty to accommodate and would include the hardship of any party subjected to the requirement of accommodation.
B. A Union Dues Exemption for Religious Belief.
Nowhere in the legislative history of the Equal Employment Act of 1972 is there any indication that Congress intended to amend the provision which now permits an agency shop agreement, and thereby exempt employees who have religious objections to labor organizations from joining or paying a dues equivalence to their representative union. As observed by the Ninth Circuit in Yott v. North American Rockwell Corporation, supra, Congress has repeatedly rejected efforts to provide exceptions to the union security provision of the NLRA for employees who have religious convictions against union membership. 501 F.2d at 400 n. 4. If there had been any understanding by the members of Congress that section 701(j) of the 1972 Act could be used as authority for the EEOC to formulate a guideline which would weaken the union security provision of the NLRA, the Act would most probably have been defeated. Certainly it would not have received such a unanimous approval by both Houses as could be expected only for a noncontroversial provision. Given this history of congressional opposition to amending the union security provision of the NLRA and the unanimous approval of section 701(j), I am unable to conclude that Congress intended to adopt such a provision when it accepted the Randolph Amendment to the Equal Employment Opportunity Act of 1972.4
Additional evidence that an exception to the union security provision of the NLRA is not to be implied from passage of other statutes can be found in the language of the NLRA, 29 U.S.C. § 158(a)(3) (1970), *176which reads in part: “Nothing in this sub-chapter, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization ... to require as a condition of employment membership therein . ..” No attempt is being made to elevate this proviso into a supremacy clause, “which for all time lifts section 8(a)(3) [29 U.S.C. § 158(a)(3)] above the general level of the United States Code to a position comparable to the Constitution,” as the majority asserts. [Typed Opinion, p. 169.] Rather, this proviso indicates the strong policy in seeing that all who receive the benefits of union representation must bear a proportional share of the costs,5 and that exceptions to this policy shall not be found unless clearly or expressly provided. Indeed, in 1974 when Congress extended coverage of the NLRA to employees of nonprofit hospitals, an express provision amending § 8(a)(3) was adopted to exempt “any employee of a health care institution 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” from union security agreements. 29 U.S.C. § 169 (1976 Supp.). With deference, I think that the majority is in error when it says [Typed Opinion, p. 169] that this exemption codified at 29 U.S.C. § 169 does not amend § 8(a)(3) of the NLRA. An examination of the legislative history of that Act clearly reveals that the purpose of this provision was to amend § 8(a)(3). See Legislative History of the Coverage of Non-Profit Hospitals Under the National Labor Relations Act, 1974 at 200. (Hereinafter Leg. Hist.)
If the 1972 amendment to Title VII does require employers to accommodate the religious beliefs of their employees such as these, there would appear to have been no reason for Congress to have provided the exception found at 29 U.S.C. § 169 when it brought the nonprofit health care industry under the NLRA. The EEOC as amicus curiae advances the argument that Congress meant to require further accommodation to religions beyond that required by Title VII as 29 U.S.C. § 169 provides an absolute exemption which is not overcome by a showing of undue hardship on the part of the Union. The legislative history of the 1974 amendment to the NLRA, however, does not support this contention. In neither the Senate debate, the House debate, nor the Joint Explanatory Statement of the Committee Conference was there any mention made of the 1964 Civil Rights Act as amended or its possible application to situations where employees have religious objections to labor organizations. See Leg.Hist. 193-211, 298-299, 331-336, 348. Obviously then, neither Senator Dominick6 nor Representative Erlenborn, nor any other member of Congress, believed that Title VII already provided even a possible exemption to the agency shop provision of the NLRA for religious beliefs.
In Yott v. North American Rockwell Corporation, supra, the Ninth Circuit was confronted with a case involving a situation similar to the present one. There, the court reversed the dismissal of plaintiff’s complaint and remanded to the district court for a determination of whether a reasonable accommodation without undue hardship could be reached. In a footnote, the court described this remand:
*177“Since we hold that if a reasonable accommodation can be reached between the parties it must be offered appellant Yott and such determination is for the District Court on remand (infra), we leave analysis of whether the ‘business necessity’ test would be met for the District Court’s determination. We are certain that the court will keep in mind that the purpose of a union security clause is to insure that all who receive the benefits of the collective bargaining agreement pay their fair share. ‘Free riders’ are discouraged. In effect stability is promoted by reducing potential labor strife, thus increasing the efficient operation of the business.” 501 F.2d at 402 n. 6.
Curiously, the court described the “undue hardship” analysis as a “business necessity” test and went on to suggest to the district court that a union security agreement does meet such a test.7 I am in basic agreement with this, but conceptualize the issue somewhat differently. To my way of thinking, the “undue hardship” analysis has no application at all to the union security agreement. Briefly stated, I would remand to the district court for the limited purpose of determining whether accommodations such as a transfer of these employees to an open shop can be made without undue hardship; and would direct that in no event should the district court extend the scope of accommodation to provide an exemption from the payment of dues under an agency shop agreement.
. “Provided, That nothing in this subchapter, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization . to require as a condition of employment membership therein ... if such labor organization is the representative of the employees
. This agency is charged with enforcement of Title VII. 42 U.S.C. § 2000e-4 (1970).
. According to Senator Randolph, this religious group observes the Sabbath beginning at sundown Friday evening and ending at sundown Saturday evening. 118 Cong.Rec. 705 (1972).
. Cf. Morton v. Mancari, 1974, 417 U.S. 535, 94 S.Ct. 2474, 41 L.Ed.2d 290. In Mancari, the Supreme Court held that the Equal Employment Opportunity Act of 1972 had not impliedly repealed provisions of The Indian Reorganization Act of 1934 according an employment preference to Indians for jobs in the Bureau of Indian Affairs. Preference for Indians in the BIA was found to be a part of the longstanding national policy on Indians, just as the agency shop provision is a longstanding part of national labor policy. As stated by the Court: “In light of the factors indicating no repeal, we simply cannot conclude that Congress consciously abandoned its policy of furthering Indian self-government when it passed the 1972 amendments.” 417 U.S. at 551, 94 S.Ct. at 2483, 41 L.Ed.2d at 301.
. See S.Rep.No.105 on S. 1126, 80th Cong., 1st Sess. 7 (1947), quoted in Yott v. North American Rockwell Corporation, supra, at 400.
. Senator Dominick sponsored a proposed amendment to the Senate bill which would allow employees of nonprofit hospitals who have religious objections to labor unions to contribute instead to a nonreligious charity. The Senate, however, tabled this amendment, Leg. Hist. 211-212. Interestingly, Senator Javits of New York was the Senator who moved to table this amendment, but was also one of the co-sponsors of the Randolph Amendment to the Equal Employment Opportunity Act of 1972. See 118 Cong.Rec. 705. Senator Javits’ outspoken opposition to granting exemptions from union security agreements on religious grounds and his support in 1972 of § 701(j) further indicate that Congress had no intent to provide for such an exception when it passed the Equal Employment Opportunity Act in 1972.
. See also 501 F.2d at 400-401 n. 4 (“It is for Congress, which authorized union security clauses, not the judiciary, to carve out exceptions to those clauses”).