(dissenting).
I respectfully dissent. In my opinion the District Court correctly concluded that the company had not complied with Title VII of the Civil Rights Act in that it failed to make reasonable accommodation to Dewey’s religious beliefs.
The Equal Employment Opportunity Commission was formed to further the purposes of the Act, 42 U.S.C. § 2000e-4, and was granted power to promulgate regulations consistent with the provisions of the Act. 42 U.S.C. § 2000e-12 (a). The Commission’s interpretation *333of the Act is persuasive although not binding on this Court. It was said in Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965): “[T]his Court shows great deference to the interpretation given the statute by the officers or agency charged with its administration,” citing Unemployment Compensation Commission v. Aragon, 329 U.S. 143, 153, 67 S.Ct. 245, 91 L.Ed. 136 (1946); Gray v. Powell, 314 U.S. 402, 62 S.Ct. 326, 86 L.Ed. 301 (1941); and Universal Battery Co. v. United States, 281 U.S. 580, 50 S.Ct. 422, 74 L.Ed. 1051 (1930).
Pursuant to its statutory authority, the Commission issued Regulation Section 1605.1, effective July 10,1967, which provides, inter alia:
“(b) The Commission believes that the duty not to discriminate on religious grounds, required by section 703(a) (1) of the Civil Rights Act of 1964, includes an obligation on the part of the employer to make reasonable accommodations to the religious needs of employees and prospective employees where such accommodations can be made without undue hardship on the conduct of the employer’s business. * * *
(c) Because of the particularly sensitive nature of discharging or refusing to hire an employee or applicant on account of his religious beliefs, the employer has the burden of proving that an undue hardship renders the required accommodations to the religious needs of the employee unreasonable.”
As the majority opinion correctly points out, the 1967 Regulations were not in effect at the time of Dewey’s discharge. However, the 1966 Regulations, which were in effect at that time, also provided that “the duty not to discriminate on religious grounds includes an obligation on the part of the employer to accommodate the reasonable religious needs of employees and, in some cases, prospective employees where such accommodations can be made without serious inconvenience to the conduct of the business.” It is thus apparent that the cornerstone of both the 1966 and 1967 Regulations is the obligation of the employer to accommodate the religious needs of employees where such accommodations can be made without undue hardship on the conduct of the employer’s business.
This is a reasonable interpretation of the Act. So, the test is whether the company has made reasonable effort to accommodate Dewey’s religious beliefs. The only accommodation to which the company points, in addition to requesting volunteers, is the privilege extended to Dewey to obtain replacement for his Sunday overtime assignments. The majority views the existence of this privilege as a reasonable accommodation to Dewey’s religious needs, and notes that “he stubbornly refused to exercise this privilege.” This “stubborn” refusal on Dewey’s part was grounded in his belief that working on Sunday is inherently wrong and that it would be a sin for him to induce another to work in his place. The replacement system was therefore no solution to Dewey’s problem. There is a significant failure by the company to show that it could not have obtained a replacement for Dewey without hardship or inconvenience. There is also no showing that Dewey’s failure to work himself or to obtain a replacement would have seriously disrupted work schedules or internal discipline. I find no support in the record for the assertion in the majority opinion that to grant Dewey’s request would cause “chaotic personnel problems and lead to grievances and additional arbitrations.” I think the company has completely failed to show that Dewey’s refusal to work on Sunday would create undue hardship on the conduct of its business.
Nor am I impressed with the argument that to grant Dewey’s request would necessarily affect the company’s contractual right to require overtime work. No evidence was adduced on this point. The company may not stand flatfootedly on its contractual right to require overtime work. Provisions of the *334contract must give way to constitutional mandates and valid statutory enactments. The First Amendment right to freedom of religion has always been recognized as one of the Bill of Rights’ strongest mandates. Even though this right has not been extended into the field of labor relations, section 703(a) (1) of the Civil Right Act is a Congressional directive that reasonable accommodation should be made by management to the religious beliefs of employees when this can be done without undue hardship on the employer. The District Judge did not apply the First and Fourteenth Amendments to the bargaining agreement here involved, but placed his reliance on Title VII of the Act and specifically stated that he did not find it necessary to reach the question whether plaintiff’s constitutional rights had been violated.
Lastly, I am unable to agree that' Dewey made an election of remedies by first pursuing the grievance procedure under the bargaining agreement and that he is thereby precluded from maintaining this action. Dewey’s rights under the collective bargaining agreement and those created by Title VII of the Act are separate and distinct. The election of remedies doctrine therefore does not apply. See Bowe v. Colgate Palmolive Company, 416 F.2d 711 (7th Cir. 1969); Bankers Trust Co. v. Pacific Employers Ins. Co., 282 F.2d 106, 110 (9th Cir. 1960). The Seventh Circuit held in Bowe that a plaintiff suing under 42 U.S.C. § 2000e could “utilize dual or parallel prosecution both in court and through arbitration so long as election of remedy was made after adjudication so as to preclude duplicate relief which would result in an unjust enrichment or windfall to the plaintiffs.”
I would affirm the judgment.
A majority of the Judges of this Court having voted against a rehearing en banc, it is ORDERED that the petition for rehearing be referred to the panel for final disposition. Judges Edwards and McCree voted in favor of a rehearing en banc.
Entered by order of the Court.
Before WEICK and McCREE* Circuit Judges, and O’SULLIVAN, Senior Circuit Judge. WEICK, Circuit Judge.It is contended- that we have adopted a narrow construction of the Civil Rights Act and the Regulations adopted by EEOC thereunder. We submit that we have not. The legislative history of the Act expresses a clear Congressional intent to inhibit only discrimination against an individual because of his race, color, religion, sex or national origin. The plain language of the statute, Section 2000e-2(a) of Title 42, is susceptible of no other meaning.
Nowhere in the legislative history of the Act do we find any Congressional intent to coerce or compel one person to accede to or accommodate the religious beliefs of another. The requirement of accommodation to religious beliefs is contained only in the EEOC Regulations, which in our judgment are not consistent with the Act.
The collective bargaining agreement, by which all employees were obligated to perform straight time and overtime required of them by the company, was equally and uniformly applied to all of the employees, and it discriminated against no one.
To construe the Act as authorizing the adoption of Regulations which would coerce or compel an employer to accede to or accomodate the religious beliefs of all of his employees would raise grave constitutional questions of violation of the Establishment Clause of the First Amendment. It is settled that the Government, in its re*335lations with religious believers and nonbelievers, must be neutral. The Government is without power to support, assist, favor or handicap any religion. See Abington School Dist. v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963); Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962); Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961); Everson v. Board of Educ., 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947); Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944).
In Braunfeld v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563 (1951), the Court upheld a state Sunday Closing Law against the contention that it operated to prohibit the free exercise of appellant’s religion which observed Saturday as the Sabbath.
No one disputes Dewey’s right to his religious beliefs. The question is whether he has the right to impose his religious beliefs on his employer and interfere with the operation of its plant. As Mr. Justice Douglas pointed out in his concurring opinion in Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), the religious beliefs of individuals may take on many forms. He mentioned specifically only a few, including Moslems, who attend a mosque on Friday and pray five times daily; Sikh, who carry a symbolic or regular sword; Quakers, who affirm instead of swearing; and Seventh Day Adventists, who observe Saturday as Sabbath and eat only certain meats.
The arbitrator in his award stated that an employee might even join a religious organization which observed Wednesday as Sabbath.
It is argued that under EEOC Regulations the employer is required to make only reasonable accommodations to the religious needs of his employees. The employee may claim that all of his religious needs are reasonable, irrespective of discrimination, and file charges with EEOC against his employer for failure to accomodate them. An employer with thousands of employees could certainly be harassed by the filing of many of such claims. This would also present serious problems for labor organizations to cope with.
Congress did not intend that employers or labor organizations should be harassed with respect to claims not involving discrimination. In the legislative history of the Act it is stated:
“Internal affairs of employers and labor organizations must not be interfered with except to the limited extent that correction is required in discrimination practices.” 1964 U.S.Code Cong. & Adm.News, at p. 2516.
The fundamental error of Dewey and the Amici Curiae is that they equate religious discrimnation with failure to accommodate. We submit these two concepts are entirely different. The employer ought not to be forced to accommodate each of the varying religious beliefs and practices of his employees.
Dewey entered the employ of Reynolds before he acquired his religious beliefs. The 1960 collective bargaining agreement was also entered into prior to that time. After he acquired his religious beliefs, his employer did endeavor to make accommodation to the religious beliefs of its employees by interpreting the agreement so as to permit any employee assigned to overtime to be relieved from the assignment simply by arranging for another qualified employee to replace him. We hold that this was a reasonable accommodation.
Dewey, with no difficulty, did arrange for replacements on five different occasions, and then he decided not only that it was a sin for him to obtain a replacement, but the arbitrator found specifically that Dewey told his replacement, Zagman, “not to serve as a replacement any more.”
While it was- stipulated that Dewey was sincere in his beliefs, he offered no proof that the tenets of his church forbade his designating a replacement to serve in his place on Sundays.
*336The fact that he was sincere in his beliefs gave him no greater rights.
Moreover, the retroactive application of the 1967 Regulations to the 1966 discharge is justified by EEOC in its amicus brief, with the assertion that its Regulations are only “interpretations” and that “the timing of the Commission interpretations is irrelevant” since the 1966 Regulation is now a “defunct Commission guideline.” Although defunct in 1967, it was certainly in full force and effect in 1966 and authorized the employer to prescribe
“the normal work week and foreseeable overtime requirements and absent an intent to discriminate on religious grounds, a job applicant or employee who accepted the job knowing or having reasonable grounds to believe that such requirements would conflict with his religious obligations is not entitled to demand any alterations in such requirements . to accommodate his religious needs.”
Dewey did not acquire his religious beliefs until after his employer had entered into the 1960 collective bargaining agreement which required all employees to work overtime. Dewey thus had actual knowledge that the requirements of the collective bargaining agreement would conflict with his subsequently acquired religious needs. Under the regulations in force at the time, which EEOC claims are now defunct, the employer was under no obligation to accommodate. There was no claim that the employer intended to discriminate on religious grounds. These regulations had the force and effect of law. Their subsequent repeal, after the discharge, ought not to affect the rights or obligations of either party.
The simple answer, however, to all of Dewey’s claims is that the collective bargaining agreement was equal in its application to all employees and was uniformly applied, discriminating against no one.
Effect of the Arbitrator’s Award
The case of Culpepper v. Reynolds Metals Co., 421 F.2d 888 (5th Cir. 1970), is relied on in support of the proposition that an employee may utilize both arbitration and an action under Title VII of the Civil Rights Act. In Culpepper, however, only a grievance was filed, which was never processed through arbitration. Culpepper involved racial discrimination, which a majority of the panel thought was so serious as to impose—
“ * * * the duty on the courts to make sure that the Act works. * * ”
Circuit Judge Coleman, who filed a concurring opinion, disagreed rather vigorously that any such duty was imposed on the Courts. He stated:
“Under our Constitutionally ordained form of Government, whether an Act works or fails is the concern of the Executive or Legislature, or both — not the courts.”
We do not regard it as our function to enlarge on the plain language of a statute so as to impose on citizens obligations never intended by Congress, in order to make it work.
Great reliance is placed upon Hutchings v. United Industries, Inc., 428 F.2d 303 (5th Cir. 1970), which was decided after our decision in the present case was announced. In our opinion Hutchings does not comport with Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed. 2d 199 (1970).
In Boys Markets, Mr. Justice Brennan emphasized the importance of arbitration in the settlement of labor disputes. He said:
“However, we have frequently noted, in such cases as Lincoln Mills, [353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972] the Steelworkers [363 U.S. 564, 80 S. Ct. 1343, 4 L.Ed.2d 1403] Trilogy, and Lucas Flour, [369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593] the importance which Congress has attached generally to the voluntary settlement of labor disputes without resort to self-help and more particularly to arbitration *337as a means to this end. Indeed, it has been stated that Lincoln Mills, in its exposition of § 301(a), ‘went a long way towards making arbitration the central institution in the administration of collective bargaining contracts.’
“The Sinclair [370 U.S. 195, 82 S.Ct. 1328, 8 L.Ed.2d 440] decision, however, seriously undermined the effectiveness of the arbitration technique as a method peacefully to resolve industrial disputes without resort to strikes, lockouts, and similar devices. Clearly employers will be wary of assuming obligations to arbitrate specifically enforceable against them when no similarly efficacious remedy is available to enforce the concomitant undertaking of the union to refrain from striking.” [footnote omitted].
Similarly, employers would be wary of arbitration clauses in collective bargaining agreements if, as in the present case, the arbitration is binding on them only and not on their employees.
Our case is even stronger than Boys Markets because the grievance here was submitted to arbitration and the arbitrator made an award which was final, binding and conclusive on the parties. It is as binding as a judgment. 5 Am.Jur.2d, Arbitration and Award, § 147. It remains in full force and effect.
The amicus brief of NAACP Legal Defense Fund candidly recognizes that “ [i] t may be true that the result of such an accommodation will be that the employer but not the employee will be bound by the decision of the arbitrator.” (Brief, p. 14).
We know of no good reason why an award of an arbitrator should not be binding on both parties, the same as a judgment of a court.
It is difficult for us to believe that any employer would ever agree to arbitration of a grievance if he knew that the employee would not be bound by the result.
The importance of arbitration in the resolution of all labor disputes is the theme of the United Steel Workers Trilogy, 363 U.S. 564-602, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960). The purpose of arbitration is thwarted if the awards are held by the courts to be binding on employers only and not on employees.
The petition for rehearing is denied.