Plaintiff, Milton Huston, appeals from a judgment of the District Court1 in favor of defendant, Local No. 93, U.A.W. Plaintiff's suit was brought under Title VII of the Civil Rights Act of 1964. The District Court entered judgment for the defendant.

Plaintiff-appellant Milton Huston was an assembly line employee at the General Motors Assembly Plant at Leeds, Missouri, from September 15, 1967, until February 7, 1972. Throughout his employment he was a member of Local 93 of the U.A.W., which represented production and maintenance employees at the plant. In 1969, Huston became interested in the World Wide Church of God, a religion teaching that it is a capital sin to work on the Sabbath, which under that church's tenets extends from sunset Friday until sunset Saturday. In October 1969, Huston began to observe the Sabbath according to the teachings of the World Wide Church and he continued to so observe the Sabbath throughout the remainder of his employment at the Leeds Plant.

GM provided two daily work shifts for assembly line employees, Monday through Friday: the first shift extended from either 6:00 a. m. to 2:30 p. m. or 6:30 a. m. to 3:00 p. m. and the second from either 4:00 p. m. until 12:30 a. m. or 4:30 p. m. until 1:00 a. m.2 The Shift Preference Agreement, which was incorporated into the collective bargaining agreement between the Union and GM, made seniority the basis for shift assignment. The first or daytime shift was generally preferred by those employees with sufficient seniority to choose shifts. Thus, less senior employees were usually assigned to the second shift.

In October 1969, when Huston began to observe the World Wide Church Sabbath, he lacked seniority for the first shift and was, therefore, working the second shift from 4:00 p. m. until 12:30 a. m., Monday through Friday. Insofar as the second shift extended beyond sunset on Fridays, it conflicted with the World Wide Church designation of the Sabbath. In October 1969, Huston began to miss Friday work assignments because of their conflict with his observance of the Sabbath. Beginning on October 3, 1969, Huston was absent from work on six successive Fridays. On October 28, 1969, Huston received his first discipline from GM relative to his Friday absences. He was issued a written reprimand for having been absent without reasonable cause on the previous Friday. On November 3, 1969, Huston was assessed a very short disciplinary lay-off for his continuing unexcused Friday absences. Huston filed grievances in response to both disciplines, arguing that his absences should be excused because his religious beliefs prohibited him from working after sunset on Fridays. GM and the Union disposed of both grievances by agreeing that Huston's record would be cleared of the disciplines if there were no further violations in the next six months.

GM assigned Huston to the first shift beginning on November 21, 1969, despite his lack of requisite seniority. This transfer, which was violative of the Shift Preference Agreement and the collective bargaining agreement, was made at the request of the Union. The working hours for the first shift did not interfere with Huston's observance of the Sabbath, but his transfer disgruntled certain second shift employees with greater seniority than Huston's. Their "grumbling" and complaints caused the Union to request that GM reassign Huston to the second shift. GM complied with this request and Huston was reassigned to the second shift effective January 5, 1970. He was thereafter absent from work on every Friday through March 27, 1970. He received four disciplinary lay-offs in consequence of these various absences. Huston filed grievances relative to all four disciplines. The Union appealed the decisions of management on two of these grievances. However, none of the grievances ever proceeded to arbitration, which was the final step in dispute settlement under the collective bargaining agreement.

Around April 1, 1970, there was a general plant lay-off. When Huston returned to work following the lay-off, he was assigned to the first shift. He remained on the first shift until January 31, 1972, at which time he was transferred back to the second shift. Huston was absent from work on February 4, 1972, his first Friday back on the second shift. As a result of this absence, Huston was discharged by GM on February 7, 1972.3

On April 12, 1972, Huston brought suit against GM under Title VII of the 1964 Civil Rights Act. He alleged that GM had violated 42 U.S.C. § 2000e et seq. (1970), as amended, (Supp. V 1975) by suspending and discharging him for his refusal for religious reasons to work Friday evenings. On November 1, 1973, a first amended complaint was filed which added the Union as a party defendant.4 Plaintiff alleged that the Union had participated and acquiesced in the employer's unlawful employment practices. A December 3, 1975, trial date was set. On the eve of trial, Huston and GM reached a settlement whereunder Huston withdrew any claim for reinstatement, injunctive relief or costs from GM in exchange for a payment of $9,000 from GM. Huston thus elected to proceed against the Union alone and the case proceeded to trial. On February 24, 1976, the trial court entered judgment in favor of the Union. Huston appeals on the merits and the Union cross-appeals on the denial of attorney fees at trial and requests an award of attorney fees on appeal.

42 U.S.C. § 2000e-2(a)(1) makes it an unlawful employment practice for an employer to discriminate against an employee on the basis of his religion. This provision must be read in conjunction with the definition of religion provided by the 1972 amendment to Title VII.5

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).

42 U.S.C. § 2000e-2(c) makes it an unlawful employment practice for a labor organization to discriminate against any individual because of his religion or to cause or attempt to cause an employer to discriminate against an individual because of his religion.

Plaintiff Huston contends that GM attempted a reasonable accommodation; that the Union obstructed this attempt; and that this obstruction constituted an unlawful practice under Title VII. It is apparent that both the Union and the employer made certain attempts to accommodate Huston's religious beliefs and that his beliefs were accommodated until valid complaints were received from other Union members who possessed seniority rights greater than Huston's. Given the postulate of a seniority system, a statutory obligation to accommodate religious needs does not supersede the contractual seniority rights of other employees. Huston was not discriminated against, for he was afforded the same rights as other employees with respect to shift preferences. The employer itself could not take steps, without violating the collective bargaining contract, to grant Huston a preference in the seniority structure.

While the Union could perhaps give consent to a variance if it met with the approval of its affected members, it certainly could not vary the seniority provisions of the collective bargaining agreement in disregard of the contractual rights of employees who wished to be afforded the benefits of their seniority.6 As expressed in Trans World Airlines, Inc. v. Hardison, --- U.S. ----, ----, 97 S. Ct. 2264, 2275, 53 L. Ed. 2d 113 (1977):

Title VII does not contemplate such unequal treatment. The repeated, unequivocal emphasis of both the language and the legislative history of Title VII is on eliminating discrimination in employment, and such discrimination is proscribed when it is directed against majorities as well as minorities. * * * It would be anomalous to conclude that by "reasonable accommodation" Congress meant that an employer must deny the shift and job preferences of some employees, as well as deprive them of their contractual rights, in order to accommodate or prefer the religious needs of others, and we conclude that Title VII does not require an employer to go that far.

It would be even more anomalous to require a union to do that which is not required of the employer: modify seniority rules in derogation of the contractual rights of its members. The Union had no duty to modify the seniority provisions of the collective bargaining agreement under the facts of this case and its refusal to do so neither constituted discrimination against Huston nor caused such discrimination by GM.7

The Union's request for attorney's fees under 42 U.S.C. § 2000e-5(k) was denied by the trial court. We deem this denial to have been well within the discretion imparted to the trial court by that statute. The Union also requests an award of costs on appeal, including attorney's fees, under both Title VII and 28 U.S.C. § 1912. We do not consider this an appropriate case for an award of attorney's fees to the Union under either 42 U.S.C. § 2000e-5(k) or 28 U.S.C. § 1912. Accordingly, the Union's request for an award of attorney's fees on appeal is denied.

The judgment of the District Court is affirmed, and statutory costs are assessed against appellant.