William A. Jordan v. The York University Faculty Association, 1982 CanLII 1069

William A. Jordan v. The York University Faculty Association

[1982] OLRB Rep. January 149

1079-81-M William A. Jordan, Applicant, v. The York University Faculty Association, Respondent Trade Union, v. The Board of Governors of York University, Respondent Employer

BEFORE: Kevin M. Burkett, Alternate Chairman and Board Members W.H. Wightman and B. Armstrong.

APPEARANCES: Gerald Vandezande for the applicant; G. Charney, S. Price and M.L. Craven for the applicant; no one appeared for the respondent employer.

DECISION OF KEVIN M. BURKETT, ALTERNATE CHAIRMAN AND BOARD MEMBER B. ARMSTRONG; January 7, 1982

1This is an application filed by Professor William Jordan of the faculty of Administrative Studies, York University, for an exemption on religious grounds from the mandatory dues check-off provision contained in a subsisting collective agreement between York University and the York University Faculty Association; the respondents in this matter. This one of a number of such applications which have been filed pursuant to the provisions of section 47 of the Labour Relations Act by persons covered by this collective agreement.

2Section 47 of the Act provides:

"47.(l) Where the Board is satisfied that an employee because of his religious conviction or belief,

(a) objects to joining a trade union; or

(b) objects to the paying of dues or other assessments to a trade union,

The Board may order that the provisions of a collective agreement of the type mentioned in clause 46(1 )(a) do not apply to such employee and that the employee is not required to join the trade union, to be or continue to be a member of the trade union, or to pay any dues, fees or assessments to the trade union, provided that amounts equal to any initiation fees, dues or other assessments are paid by the employee to or are remitted by the employer to a charitable organization mutually agreed upon by the employee and the trade union, but if the employee and the trade union fail to so agree then to such charitable organization registered as a charitable organization in Canada under Part I of the Income Tax Act (Canada) as may be designated by the Board.

(2) Subsection (1) applies to employees in the employ of an employer at the time a collective agreement containing a provision of the kind mentioned in subsection (1) is first entered into with that employer and only during the life of such collective agreement, and does not apply to employees whose employment commences after the entering into of the collective agreement."

Section 47 should be read in conjunction with section 46(l)(a) of the Act which provides:

"46.(l) Notwithstanding anything in this Act, but subject to subsection (4), the parties to a collective agreement may include in its provisions,

(a) for requiring, as a condition of employment, membership in the trade union that is a party to or is bound by the agreement or granting a preference of employment to members of the trade union, or requiring the payment of dues or contributions to the trade union;"

3The collective agreement which contains the clause from which Professor Jordan seeks his exemption is the third collective agreement between the respondents. In contrast to the current agreement the previous two agreements contained a provision permitting an employee to "opt out" of the payment of union dues by declaring in writing "on grounds of affirmatively expressed religious belief or personal conviction" that he desired such monies not to be remitted to the Association. In cases of exemption under the previous agreements an equivalent amount was remitted to a "bursary scholarship fund." It was argued in the first of the present series of cases filed by persons covered by the current agreement between the respondents that the earlier collective agreements "required" the deduction of dues in the sense contemplated by section 47(1) and 46(l)(a) of the Act, and accordingly, the application for exemption could only have been brought, pursuant to section 47(2) during the term of the original collective agreement. (See York University and Douglas N. Butler[1981]OLRB Rep. Sept. 1319.) The Board, in rejecting this argument, held that:

"a provision in a collective agreement which has the effect of granting an exemption cannot be said to 'require' the payment of dues."

It was also argued in the Butler case, supra, that the exemption available under the Act lasts only for the duration of one collective agreement and that the applicant in that case had had the benefit of the exemption through the voluntary act of the parties in providing for opting out in the initial collective agreement. The Board rejected this argument as well, and confirmed:

"that no limit has been placed on the length of time during which an exemption granted under the section continues to operate."

Neither of these arguments was put before the Board in this matter. We have before us an application which satisfies the preconditions necessary to a disposition on the merits.

4In filing his application in this matter, Professor Jordan set out in writing the grounds upon which he seeks his exemption. His statement reads:

Consistent with the tenets of the Christian religion, I believe in a God who holds each of us individually responsible for our actions, achievements and failures. Furthermore, I believe that I will bejudged by what I actually do, and not by protestations of faith or by conformance to the preferences or practices of various majorities. A tangible expression of my individual responsibility is my professional obligation to create and distribute knowledge (research and teaching) for the benefit of those who chose to avail themselves of my work. This is the means I have been given to compensate others for providing me with my sustenance and, hopefully, to make an extra contribution to society in general. Fundamental to this obligation is the rejection of coercion in any form regarding interruptions in this work that could adversely affect other individuals or could result in my achieving less than what I am capable. The Bible recounts the "Parable of the Talents" (Matthew 25:14-30) in which a master gave each of his servants resources to husband in his absence. When called upon to answer for the stewardship of my life, I do not wish it to be said that I did less than I could in order to further my narrow personal interests. Accordingly, because of my personal religious convictions and beliefs, I cannot in good conscience support the York University Faculty Association and, therefore, I object to paying dues to the association.

5Professor Jordan testified that at twelve years of age he took it upon himself to begin Sunday School and that at fifteen he was baptized into the Methodist Church. He described himself as a Christian believer who believes in the Bible and follows the "golden rule" of "do unto others as you would have them do unto you" and "love thy neighbour". He described the three important bases of his belief as concern for the individual, love everyone and judgment. Professor Jordan opposed the respondent union from its inception and testified that he did so because the York University Faculty Association stood for things inconsistent with his beliefs. He referred to the compulsion of belonging to the bargaining unit, whereas the essence of the Bible is voluntary action. He referred to the union as an adversarial organization, whereas his belief is that people should work together and co­operate. He referred to the physical and mental violence worked upon individuals by strike action, whereas he respects the rights of others, presumably in accord with the "golden rule". He referred specifically to the potential for harming students who are in a professor's trust, by withholding marks and other such strike tactics. Professor Jordan has not belonged to a church since 1975. However, he has both attended and supported a number of churches since that time. None of the churches to which he has belonged or attended have forbidden membership in a trade union or similar organization. Professor Jordan did not retire from the U.S. Air Force Reserve until 1980.

6Professor H. Graniststein, the first chairman of the certified faculty association and a driving force behind the unionization of the faculty, testified that Professor Jordan was the key man in opposition to unionization. He testified that Professor Jordan took the professional faculty line which was based on the belief that their interests would not be served by unionization. He never heard religion mentioned by Professor Jordan during the whole course of the organizing campaign. When asked in cross-examination what he meant by religion, Professor Graniststein replied, an organized doctrine of faith and expounded his answer in re-examination to encompass God, Church and all of the things normally associated with religion.

7Professor Jordan was a member of a group referred to as the "Independent Faculty Members", which actively opposed the certification of the Faculty Association unsuccessfully challenged the certification in the Courts, and attempted to block the ratification of the first collective agreement. Eleven news letters circulated in 1976 by \this group were placed in evidence. Professor Jordan, who was an active member, if not the leading force behind this group, is listed as one of the faculty members to contact in order to discuss "these and other aspects of unionization" in each of these newsletters. The first, dated January 15, 1976, sets out a number of points to be considered with respect to unionization. These are:

1. Must all faculty members and librarians be required to join the union? Those who do not wish to join should be allowed to retain their independence rather than being coerced into joining. At the same time it would be reasonable to require such independent faculty members to contribute an amount equivalent to the YUFA dues to a recognized charity.

2. Can individuals be fired for not joining the union? A closed-shop agreement would require the University to fire faculty and librarians whose convictions prevent their joining the union. This is a violation of a fundamental academic freedom. Is this hard-won right to be sacrificed for the unknown benefits of unionization?

3. What will be the Senate's power after unionization? The Senate already has the power to help YUFA achieve its substantive goals (read the York University Act, 1965). Would you rather have the Senate or YUFA provide academic leadership?

4. Have the Toronto high school teachers achieved their professional goals by their strike? We can achieve our legitimate objectives through existing mechanisms. Unionization will substitute other, unknown mechanisms which may reduce York's capabilities to produce quality education and research.

5. Will the collective agreement contain a requirement for effective merit pay awards? Salary by seniority is unacceptable in a university seeking excellence.

6. In case of strike, will researchers have access to their offices and laboratories, or will months of work be lost or seriously interrupted?

Although items one and two refer directly to the possibility of mandatory union membership there is no express reference to the dilemma which mandatory dues check-off would pose for a person (as Professor Jordan claims to be) who opposes unionization on religious grounds. Indeed, item two characterizes the issue as a "violation of a fundamental academic freedom".

8In the newsletter dated May 6, the "key issue before York in Faculty Unionization" is described in the following terms:

The Key Issue before York in Faculty Unionization

The decision of YUFA to ask for a change in the legal relationships with the University unavoidably raised the basic legal question of how these relationships can be changed. This question is related to the fundamental principle of whether or not the legally required adversarial process of unionization should take the place of academic due process. Members of the IFM believe that academic due process should not give way to the adversarial process. We are convinced that the ability of York to maintain its academic integrity, to function effectively as a centre for the advancement of knowledge and culture through teaching and research, will be greatly decreased if the government of York is based upon a competition for power by two groups, each of whom believes that its interests are inconsistent with the interests of the other.

This statement of the issue, as with the newsletters generally, stresses the impact of unionization upon academic life but says nothing about the dilemma posed for those who may oppose the union on religious grounds.

9Professor Jordan and a colleague travelled to Lakehead University in 1976 to speak against the unionization of university faculty members. The main thrust of Professor Jordan's arguments, which were consistent with the content of the newsletters, centered on the co­operative nature of faculty versus the adversarial nature of union, and the effect of unioniza­tion upon standards. Professor Jordan was quoted in the December 6, 1976 edition of the university newspaper as being opposed to a faculty union because:

"I hope to achieve a better university. In the United States only the third rate universities are unionized. Unionization is an impediment to hiring people who are first rate because they are productive."

Without unionization, he said, "York would have more flexibility to judge professors on output, not input."

Though lack of unionization does not necessarily make for a great, or productive, university, he said, it is "a necessary condition not to be unionized" in order to be one.

When asked in cross-examination if he protested the remarks attributed to him in the university newspaper, Professor Jordan replied in the negative. He replied in the affirmative when asked in cross-examination if he was concerned that the quality of teaching might deteriorate if the faculty became unionized. He also answered in the affirmative when asked if he was concerned that collegiality would deteriorate.

10Professor Jordan's personal motto is "to achieve". He testified that a strike does not accomplish what he wants to achieve and maintains that he has enough reputation to speak for himself as he has in the past so that he doesn't need a strike.

11As we have noted, the previous two collective agreements provided for an opting out of the paying of union dues "on grounds of affirmatively expressed religious belief or personal conviction." By notice to the university dated January 12, 1977, Professor Jordan exercised this right to opt out of the paying of union dues. His notice reads:

I, William A. Jordan, of the Faculty of Administrative Studies, York University, hereby notify the University that I do not wish any salary deduction to be made from monies that are owed to me or may in the future be owed to me by the University for the purpose of fees, assessments or dues specified by the York University Faculty Association.

I make this notification pursuant to the provisions of a purported Collective Agreement between York University and the York University Faculty Association without prejudice to my right to object to the validity of such Agreement at any time. I further request that if any monies are deducted from monies owed to me in lieu of Association dues, fees or assessments pursuant to the provisions of the purported Collective Agreement, such monies be paid into the George A. Edwards Memorial Bursary referred to in the purported Collective Agreement.

This notice is based on my deep personal conviction that unionization is detrimental to the independent scholarship and teaching which are fundamental to furthering the essential activities of a university. The following are just two specific reasons for this conviction: First, I am convinced that compulsory membership in a bargaining unit, with the consequent elimination of significant rights of the individual faculty member (including the right to speak and act for oneself in important matters), is the antithesis of the spirit of a true university. Second, I believe that an adversarial employer/employee relationship is inconsistent with, and destructive of, the collegial governance of the University which is a necessary condition for a university to facilitate and encourage the search for and dissemination of knowledge.

The first two paragraphs of the notice were drafted by a lawyer while the last paragraph was written by Professor Jordan. In relying upon personal conviction rather than religious belief, Professor Jordan explained that the churches he had belonged to have never held that a member cannot belong to a union (he acknowledged in cross-examination that he knew of no other churches which so require) so that he thought religious belief referred to the formal tenets of one's religion. Notwithstanding his reliance on personal conviction rather than affirmatively held religious belief, he maintained that his religious beliefs, as described, were at the root of his objection to paying union dues. He was asked by his counsel if there was any difference between his religious beliefs and personal convictions. He replied "I am a whole person, a complex of all my experiences. My religious convictions are intermingled. They are the same thing and cannot be compartmentalized so conveniently."

12Finally, following the signing of the current collective agreement Professor Jordan forwarded the following letter to Mr. W.W.D. Farr:

"This is to advise you and the University that I cannot in good conscience either be a member of, or pay dues to, the York University Faculty Association because of deeply-held convictions. Therefore, as originally requested in my notice to York University dated January 12, 1977, please continue to refrain from deducting from my salary any fees, assessments or dues specified by the York University Faculty Association.

A copy of my original notice is enclosed for your information.

13In the Butler case, supra the Board extensively reviewed the jurisprudence and attempted to give meaning to the term "religious" as used in the section. The Board reasoned at para. 16 of that decision as follows:

Compromising between freedom of religion and egalitarian support for a trade union obligated by law to represent all employees in a bargaining unit is a delicate social issue (cf. again Vis, supra), and falls properly within the purview of the Legislature. Had the Legislature chosen to grant the objection simply on the basis of "personal conviction", or "genuine belief', or "matter of conscience", it could easily have done so. But it did not. The section is not written simply for "conscientious objectors". As the Ontario Court of Appeal observed in Donald v. Hamilton Board of Education (1945) 1945 CanLII 117 (ON CA), 3 D.L.R. 424, in considering the meaning of "religion" under the Public Schools Act, at page 429:

The fact that the appellants conscientiously believe the views which they assert is not here in question.

The Legislature having chosen to limit the exemption to matters of "religious" conviction or belief, it is the task of the Board to ascribe some weight to that word, and to attempt to distinguish the "religious" from the "non-religious". This becomes particularly cogent if the recently-enacted section 36(a), 1980, c. 34, s. 2(1), requiring the inclusion in a collective agreement, at the request of a trade union, or a provision effectively requiring all members of a bargaining unit to share equally the costs of their agent, is to maintain its integrity. It is the view of the Board that a conviction or belief, to be "religious" within the meaning of the section, must in some way relate to the more othorodox view of "religion" prevalent in the community. This is, the beliefs must related to the Divine (in some form) and man's perceived relationship to the Divine, rather than to concepts which deal only with man-made institutions, and the relationship of men inter se.

14It is against this backdrop that the Board must put its mind to the beliefs articulated and relied upon by Professor Jordan and determine:

(a) if they are sincerely held;

(b) if they are religious; and

(c) if they are the cause of the objection to paying union dues. (See Helena Wybenga [1976] OLRB Rep. Aug. 422.)

15Professor Jordan maintains that his religious beliefs and personal convictions are inseparable and govern all of his actions. He references his striving for excellence, his abhorrence to compulsion and his distaste for the adversarial to the teachings of the Bible. While he acknowledges that others who also live by the Bible may not feel compelled to object to the payment of union dues, it is on the basis of these beliefs, as referenced to the Bible, that he registers his objection to paying union dues. If the Board had to decide in this matter if the beliefs articulated by Professor Jordan at the hearing are religious within the meaning of section 47, the determination would be a most difficult one. However, even if we accept, without finding, that the beliefs upon which he now relies are religious within the meaning of the section, we would nevertheless be required to find that they are not the cause of his objection to paying union dues. Where an individual has been actively opposed to the trade union and has verbalized his opposition over a long period of time, inferences as to the true nature of his opposition to paying union dues are to be drawn from what he has said in the past. In the absence of some type of intervening religious conversion, which did not occur in this case, there is a heavy onus on an individual who attempts to recast his opposition as religious when religious grounds are the only grounds remaining upon which to oppose the union.

16Professor Jordan has been opposed to the union from its inception. The evidence which details his opposition satisfies the Board that up to the filing of this application the basis of his opposition was not religious in nature but professional. With the advent of unionism, Professor Jordan envisaged a University with lower, standards, less collegiality, fewer "top­notch" professors, a less responsive senate and the possibility of scholastic interference. He felt himself able to do his own bidding and rather than submit to a regime which he thought would destroy his concept of the university he became a vociferous opponent of unionization. Nowhere in the newsletters circulated by the Independent Faculty Members, of which he was a guiding force, is reference made to the possible interference with religious freedom. Nowhere in the interview published in the university newspaper or in his remarks to the faculty at Lakehead University, as one would have expected of someone who objected to the union on religious grounds, did Professor Jordan make reference to the potential for an infringement upon religious beliefs. He framed his remarks in terms of the impact of unionization upon professional standards. When given the opportunity to opt out of the paying of union dues on grounds of "affirmatively expressed religious belief or personal conviction" he chose the latter and the rationale which he put forward in support of his opting out is clearly related to professional rather than religious concerns. Regardless of whether Professor Jordan felt himself constrained to characterize his objection as one of personal conviction, because he was of the view that the term "affirmatively held religious belief' referred to the formal teaching of a church, the grounds for his objection, as set out in the document requesting an exemption, are not religious. They are professional and they are consistent with the tenor of his objection from the outset.

17When the current collective agreement was negotiated shortly after section 46(2) of the Act was proclaimed, religious beliefs were the only basis upon which Professor Jordan could seek an exemption from the payment of union dues. In the absence of any evidence that Professor Jordan had relied upon religious belief in his long history of opposition to this union or had referenced his secular concerns to the teaching of the Bible, as he now does, we are not prepared to conclude that his present opposition to paying union dues, at a time when he is restricted in his grounds for objection to religious belies, is based upon religious conviction or belief. The evidence establishes that Professor Jordan sees the unionization of faculty as incompatible with his concept of a university. We are satisfied on the evidence that his objection to paying union dues is motivated, not by what may be religious beliefs, but by his determination not to support an organization which he considers to be destructive to the university. Accordingly, this application is hereby dismissed.

DECISION OF BOARD MEMBER W.H. WIGHTMAN;

1. Unlike the majority, I would conclude that "determination not to support an organization which he considers to be destructive to the university" (para. 17 of the majority decision) to be an affirmative and logical expression of one whose religious beliefs preclude an individual from joining or supporting a trade union.

2. In light of the strictures imposed by the legislation itself, the fact that in opting out of dues payments under earlier agreements Professor Jordan alluded to "deep personal conviction", (as opposed to "religious belief'), might have seemed to me a more persuasive basis for denying this application, except that the evidence seemed to indicate that his choice of grounds was no more reflective of his religious convictions than is the case when a profoundly religious individual chooses to "affirm" rather than be "sworn" for purpose of giving evidence.

3. As to Professor Jordan's efforts to prevent unionization at York and other universities, one concludes that had he silently acquiesced to the organizing activity the majority might have granted his application.

4. There is an even stronger inference that had his words and writing invoked the Diety, as opposed to relying on appeals to the intellect, Professor Jordan's petition might have succeeded. To this I would only say that it would seem logical for him to attempt, as he did, to appeal to academics with reasoned argument. He attempted to counter Professor Graniststein's efforts at collectivization with the argument that putting a premium on mediocrity through the introduction of collective bargaining was not in the interests of the faculty, students or the university community in general. that he failed is evidenced by the certification of the Association, but that he should fail in this application seems to me a denial of the rights Professor Jordan is entitled to exercise under the Labour Relations Act. I would have granted the exemption.