Delmar McCormack Smyth v. The York University Faculty Association, 1982 CanLII 4827

[1982] OLRB Rep. November 1746

2464-81-M Delmar McCormack Smyth, Applicant, v. The York Univer­sity Faculty Association, Respondent Trade Union, v. The Board of Governors of York University, Respondent Employer

BEFORE: R. 0. MacDowell, Vice-Chairman, and Board Members W. G. Donnelly and H. Simon.

APPEARANCES: Gerald Vandezande for the applicant; C. M. Mitchell, J. Newson and M. L. Craven for the respondent trade union; no one appearing for the employer.

DECISION OF THE BOARD; November 23, 1982

1. This is an application for religious exemption made pursuant to section 47 (formerly section 39) of the Labour Relations Act. The applicant is seeking relief from the compulsory dues checkoff provisions in the current collective agreement between the respondent York University Faculty Association (Y.U.F.A.) and York University. Section 47 reads as follows:

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(l)(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.

The basis for exemption set out in Professor Smyth's application reads:

As a Christian, in the Non-Conformist Protestant tradition, I believe in God as the immanent and transcendent, the indwelling and higher source and sustainer of all of life. I also believe that God has endowed human beings with capacities which enable them, of their own free will, to love and care for their fellow human beings and all creation and that such love and care necessarily preclude exploita­tion and manipulation. I believe further that each person should be granted:

(1) the freedom to pray and to worship, to study and teach, peacefully in accordance with the light and understanding with which the indwelling Spirit of God illumines the mind and conscience of that person;

(2) the freedom to associate, to pray and worship, to study and teach with those of similar beliefs. Such freedom necessarily includes the freedom not to associate with those who do not share such views;

(3) the freedom to seek and respect the truth peacefully in accord­ance with his or her own personal understanding of truth and to use such understanding for the reconciliation of individuals and groups with one another.

Given my religious beliefs it follows that I am opposed to forcing individuals, as long as they are acting peacefully, to do things which are contrary to their conscience or to engage in actions which might entail hardship for third parties, that is persons who are not party to an agreement. I am unable to support the York University Faculty Association which insists on compulsory dues check-offs, which may be contrary to the conscience of individuals and certainly is in my case; and I am unable to support the York University Faculty Association's possible withdrawal of services, for instance through a strike, which would inevitably involve hardships for third parties.

In their search for truth I believe that academics have a special responsibility to be by bound by truth in its totality not merely by a particular aspect of truth which may be exploited to the temporary advantage of oneself or the group to which one belongs. Because the York University Faculty Association has opted for the adversarial method rather than the co-operative approach I am unable to support it. To do so would be opposed to my religious commitment to reconciliation rather than adversarial.

2. Before turning to the merits of the instant application, it may be useful to refer briefly to the way in which the Board has approached the interpretation of section 47 in other cases. It is against this background that Professor Smyth's position should be considered. It should be noted at the outset, however, that the Board's ultimate decision in section 47 cases will inevitably be strongly influenced by its assessment of an applicant's demeanour and general credibility. Typically, the applicant's own words and actions will be the only source of information from which the Board must determine whether his beliefs are sincerely held, whether they are "religious", and whether they are really the cause for his objection to supporting a trade union (see Helena Wybenga, [1976] OLRB Rep. Aug. 422). As is perhaps obvious, it is relatively easy for an articulate and thoughtful individual, intentionally or unintentionally, to rationalize an objection to trade unions in religious terms in order to fall within the ambit of section 47. Doubts about an applicant's credibility merely complicate the already difficult task which the legislation requires the Board to undertake. And of course, in assessing credibility, the Board cannot restrict itself to the witness' direct evidence or some prepared statement setting out his position. It must also consider his performance in cross-examination. As in other litigation, cross-examination is an essential tool for probing and clarifying a witness' evidence.

3. Of the above-mentioned questions associated with the interpretation of section 47 (i.e., whether the applicant's beliefs are sincerely held, whether they are religious, and whether they are the cause of his objection), it is the second one which is often the most perplexing. In view of the remedial thrust of section 47, the Board has always been disposed to give the word "religious" a liberal interpretation. "Religion" can have a meaning which extends well beyond the established views of a particular sect, [see Civil Service Association of Ontario Inc. v. Anderson, (1976) 9. O.R. (2d) 341; Funk v. Manitoba Labour Relations Board, (1976) CLLC ¶14,006; Klaas Stell v. The North York Civic Employees' union, Local 94, Canadian Union of Public Employees, [1971] OLRB Rep. July 63; Vis v. Sheraton Connaught, [1972] OLRB Rep. March 249; and Centennial College, [1979] OLRB Rep. March 974] and the Board has consistently recognized that religion may be personal to the individual and need not be tied to any particular church or creed. On the other hand, it is obviously easier for an applicant to meet the test of section 47 if his beliefs form part of the dogma of a recognized religious sect. But again, this is largely a matter of credibility.

4. Counsel for the applicant contends that the Board has no jurisdiction to ascribe a meaning to the term "religious" in section 47, or to attempt to define what religion is. In his submission, if an applicant has sincerely held personal beliefs, that is sufficient to meet the requirements of the Act. Indeed, he goes further. He argues that if an applicant asserts that his beliefs are "religious", then the Board is bound to accept that characterization. He argues that the Board has no authority to decide that certain beliefs are "political", "secular”, or "social" as opposed to "religious". Thus, he argues, if a Communist were to assert that his views are "religious" that is the end of the matter —even though some might consider such views "political" and others might regard them as the very antithesis of "religion".

5. This argument was considered and rejected in Board of Governors of York University Re Douglas N. Butler [1981] OLRB Rep. Sept. 1319. After reviewing a number of the earlier Board cases, the Board concluded:

6. What the applicant is in effect asking the Board to do is to legislate the word "religious" out of section 39 [now section 47] altogether. This is not an appropriate function for the Board. 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 "matters 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.

17. 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 te "non-religious". This becomes particularly cogent if the recently-enacted section 36a [now section 43], 1980, c. 34, s. 2(1), requiring the inclusion in a collective agreement, at the request of a trade union, of 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 orthodox view of "religion" prevalent in the community. That is, the beliefs must relate to the Divine (in some form) and man's perceived relationship to the Divine, rather than to concepts which deal only with man­made institutions, and the relationship of men inter se. As the High Court of Australia noted in Adelaide Company of Jehovah's Wit­nesses Inc. v. The Commonwealth (1943), 67 C.L.R. 122, at pages 123 and 124, in defining the statutory limits on freedom of religion:

It is true that in determining what is religious and what is not religious the current application of the word 'religion' must necessarily be taken into account.

This is not to say, of course, that moral precepts may not form an important part of any religion. As the Court observed in Anderson, Supra, at 344:

It is trite to say that in some circumstance, or with respect to some individuals, matters of morality might well be quite separate and distinct from matters of religious belief. However, it does not follow that a matter of individual morality and conscience may not for some individuals be an important element or tenet in the religious convictions or belief.

Indeed, it might be argued that religion has no greater importance than in the moral precepts which it imparts, and on the basis of which an individual carries out his daily life. The Board is simply observing that the use of the term "religious" in section 39 [now section 47] appears to require more than merely a code of behavior or system of wordly standards, standing alone. As McRuer C.J.H.C. noted in dealing with the related words, "creed", in Trenton Construction Workers Association, Local No. 52 v. Tange Company Limited, (1963) 63 CLLC ¶15,459:

Whatever meaning one gives to the word "creed" it must involve a declaration of religious belief. Religious belief, theology and standards of ethical or social conduct are all very different things.

Nor is it sufficient for an applicant simply to state that his worldly standards evolve from his concept of God and God's will. It is the task of the Board to satisfy itself that this is the case.

6. We endorse and adopt the approach enunciated in Butler. We do not think we can simply accept an applicant's characterization of his convictions, nor is it sufficient that they are sincerely held. They must also be "religious". However difficult it may be to define "religion" in particular cases (given that religious and secular beliefs may co­exist or be interrelated), the Board must ascribe some meaning to the words that the Legislature has used, and in so doing it is our view that the Board should be governed by their usual or accepted meaning in the community. That is what the Legislature presumably intended when the legislation was framed. Had the Legislature intended to broaden the basis for exemption beyond the "religious", it could easily have done so. The concept of "dissent" is not unknown to the Statute (see Section 46(2)(c)). Had the Legislature wished to exempt "dissenters” or "conscientious objectors" language to this effect could have been drafted to accomplish that object. The Legislature did not do so —hence the enquiry into an applicant's religious beliefs required by section 47.

7. Likewise, in each case the Board must decide whether the opposition to supporting a union is because of an individual's religious beliefs. The fact that an individual has certain religious as well as other beliefs (political, for example) does not necessarily mean either that all his beliefs should be considered religious, or that all his behavior necessarily has a religious motivation or cause. One will find religious persons who are opposed to trade unions or to a particular trade union. But it does not automatically follow that the religious beliefs are the cause for the objection. Nor must the Board unhesitatingly accept such assertion. There will be individuals whose lives are so animated by religion that one can fairly conclude that all of their views and all of their views and all of their conduct are inextricably connected to their religious beliefs. But in the Board's experience such individuals are rare. Again, it is a matter of credibility.

8. We turn now to the evidence in the instant case. Professor Smyth told the Board that the members of his Family have been part of a non-conformist Protestant Christian tradition for some four hundred years. He grew up in a Christian household. His mother was a practising Baptist, and his father was a Presbyterian. His father's ancestors were Quakers. Professor Smyth testified that, in consequence, he developed a profound respect for religious and intellectual dissent. He said that for him, truth and freedom were inextricably linked.

9. Professor Smyth testified that religion is an expression of what is ultimate, what holds life together. He indicated that, for him, academic freedom is a part of religious freedom. He is committed to truth and co-operation rather than coercion, manipulation or adversarial relationships. He said he has been a practising Baptist for many years, and for the last two years has also considered himself a Quaker. It was this latter affiliation which, Professor Smyth explained, prompted him to decline to give his evidence under oath. Professor Smyth has contributed to a variety of churches and charities and recently has both sponsored and supported a visiting foreign student. There is no evidence that the religious organizations with which Professor Smyth has been connected have any general doctrinal objection to trade unions.

10. Professor Smyth put before the Board a letter dated January 11, 1977, in which, inter alia, his religious beliefs were mentioned as one of the reasons for his opposition to any collective agreement provisions requiring compulsory membership in Y.U.F.A. In this respect, Professor Smyth's position is different from some of his fellow objectors from York University whose "Religious opposition" seemed to surface only much later, after all other efforts to oppose the union had failed and section 47 was the only option open. It was this spectre of the union's leading opponents, seemingly for the first time, and en masse, claiming religious exemption, which engendered the cynicism which counsel for the respondent made little effort to conceal. Nevertheless, as the Board pointed out in Butler, supra, each case must be considered on its own merits. An individual's prior actions opposing a trade union may well be motivated by precisely the same "religious conviction or belief' which underlies his request for exemption under section 47.

11. Professor Smyth told the Board that he envisages the University as a special kind of community whose central rationale should be the pursuit of truth. In his view, the University should exemplify the virtues of tolerance, trust, and truth, and develop more co-operative systems of organization and decision-making. Professor Smyth expressed concern about the intrusion of a trade union, which was viewed as an alien influence combining self-interest with a readiness to resort to industrial conflict to the potential prejudice of other members of the University community — especially the student body. The trade union, in his view, would institutionalize "adversarialism" rather than reconciliation. These views were all said to be a reflection of Professor Smyth's religious beliefs.

12. There is little doubt that Professor Smyth has sincere and deeply held convictions about York University, and the way it should operate. Moreover, he is in a unique position to articulate these views. After running a successful electrical business in the early 1950's, and serving as an administrator at the University of Toronto, he participated in the discussions leading to the founding of York University and the drafting of the first York University Act in 1959. He was on the Senate from 1963 to 1969, and he contributed to the redrafting of the York University Act of 1965. Indeed, the University, as an institution, is a matter of real academic interest to him. His Ph.D. thesis involved an analysis of the structure of university government, and an examina­tion of the historical and legal evolution of its internal governing bodies —particularly the changing relations between the Senate and the Board of Governors from the nineteenth century to the present. The depth of his knowledge and interest was evident from his evidence.

13. Professor Smyth was a member of the York University Staff Association, but he has always been firmly opposed to the organization and certification of Y.U.F.A. During the certification proceedings, Professor Smyth wrote a series of letters to the Board setting out his own position and endorsing that of counsel for Professor Jordan who also made representations to the Board in opposition to Y.U.F.A.'s certification. This series of letters is as follows:

4 February 1976

Gentlemen:

I write to you for two reasons. As a tenured faculty member of York University I am a party to the proceedings of your Board concerning the application of the York University Faculty Association. Thus my first reason for writing is to request that the Board kindly add me as a participating party to those proceedings and that the Board kindly hear me on 11 February 1976. My second reason for writing is to state that I have evidence which should be considered by your Board as it seeks to determine who constitute management and who are employees in York University.

Please let me explain at the outset why I did not request earlier that I be made a participating party. Since 1 September 1975 1 have been on sabbatical leave from York and have spend [sic] considerable time traveling [sic] back and forth and in the United States on the research project for which I was granted leave. I have not received from your Board, or York University or the York UniversityFaculty Association any communication nor have I seen any notice concern­ing your hearing of the latter's application. It was not until the first of this week that I saw the text of the form of agreement between York University Faculty Association and York University signed by W D. Farr on behalf of York University concerning the composition of the proposed "Faculty Bargaining Unit." The first of this week also I phoned your office and ask for a copy of your regulations to determine on what bases I could ask to be made a participating party to the proceedings. I spoke to Mr. Saxe, who told me that copies of the regulations were not available as they had not yet arrived from the printer. Later Mr. Brunskill kindly phoned and told me to write this letter.

Subsequently I learned of the regulation of your Board which permits you to decide at any time that a person may be declared to be a participating party to your proceedings. I earnestly believe that on the basis of my intimate knowledge of, and day-by-day experi­ence in, Canadian universities during more than twenty years and in particular in York University for nearly fourteen years I can help the Board in its consideration of the application submitted by the York University Faculty Association.

For seven years following a personal request from Bill Davis in 1966 I served as a member of the Ontario Council of Regents for Colleges of Applied Arts and Technology. During much of that time I was Vice-Chairman of the Council and for a period Acting Chairman. Thus I have some appreciation of the problems encoun­tered by Boards such as yours when they seek to make their way carefully and thoughtfully through the thickets of uncertainty in post-secondary education in Ontario.

Perhaps I should note also that I have some expert knowledge of some of the unique legal aspects of universities which are not widely known but which should be appreciated in some detail by your board. If you grant my request I believe I should be able to contribute to the fund of knowledge concerning both the legal bases and the internal operations of universities which you will no doubt wish to have as you consider not only the application from the York Faculty Association but the applications from other Ontario univer­sity faculty associations which may well be coming to your Board for certification. There are subtle, but extremely important, differ­ences in the separate legislative Acts which govern the affairs of Ontario universities. Hearing me concerning these matters could, I believe, expedite your consideration of the York application and other applications from Ontario universities which may be forth­coming.

Finally, let me assure you I earnestly wish to be helpful in your deliberations concerning York University in particular. York Uni­versity was first established by an Act of the Ontario Legislature in 1959. I had my first contact in 1954 with some of those who later secured that Act. I contributed to the ideas and proposals which resulted in the passage of that Act. In 1962 I began to teach and serve as an administrator in York. I was appointed Dean of Atkinson College 1963 and served in that post until 1969. As you may know Atkinson College offers a wide variety of undergraduate degree programs for part-time and evening students who would not other­wise be enabled to proceed to university degrees. My concern as Dean of Atkinson and throughout my career as a university teacher and administrator has been to help 'the little guy', as the late Joseph E. Atkinson of The Star used to describe the common man. I know that your Board has the same concern.

I participated in the revision of the York Act, 1959. The draft document developed formed the basis for the York Act, 1965. More important perhaps for your purposes I have gained an intimate knowledge both as a university teacher and as an administrator of how the university functions day-by-day. Since 1969 I have devoted myself to teaching and research in York University as a member of the faculty.

Please forgive me for the length of this letter but in view of the lateness of my request for a hearing I felt a rather comprehensive explanation should be provided. Since I did not receive notice from your Board, or from York University, or from the York University Faculty Association, and since I have not seen any notice concern­ing your hearing of the York Faculty Association application and due to the non-availability of printed copies of your regulations, I believe it is only fair in terms of natural justice to ask that you make me a participating party to your proceedings on the York University Faculty Association application and afford me a hearing on 11 February 1976.

Thank you for your consideration of this letter and the requests which it contains.

(emphasis added)

9 February 1976

Gentlemen:

In the hope that it may assist members of the Board in their consideration of the York University Faculty Association applica­tion I send four copies of each of the following Acts of the Ontario Legislature.

• An Act to Incorporate York University, 1959

• The York University Act, 1965.

You will note that Section 2 of the 1959 Act provides that certain persons named in that Section and "such other persons who may hereafter be appointed or elected Chancellor, President or a member of the Board or as a member of the Senate or upon whom the University may confer a degree are hereby created a body corporate with perpetual succession and a common seal under the name of "York University"."

Section 2 of the York University Act, 1965 provides that "York University, its Board, Chancellor, President and Senate, and all other attributes thereof, are hereby continued and, subject to the provisions of this Act, have, hold, possess and enjoy respectively all the rights, powers and privileges that they had at the time of the passing of this Act or that are conferred upon them by this Act."

I trust drawing these Acts and their provisions to your attention will be of assistance as you consider who constitute management and who are employees in York University.

[From Counsel for Professor Jordan] February 20th, 1976:

Dear Mr. Brunskill:

Re: York University Faculty Association

vs. York University et al.

Board File Number –1394-75-R.

At the hearing before The Ontario Labour Relations Board on February 11th, 1976, I advised the Chairman of the Board panel that I would like to make further written submissions to the Board on the issues raised both at the hearing and in my letter dated February 9th, 1976. Given the importance of the matters raised, I would like to give the Board and the other parties some further clarification of the issues we have requested be dealt with.

The arguments and evidence which we wish to have dealt with relating to the appropriateness of the bargaining unit and the status of the applicant can be severed into two categories:

1. The appropriateness of the unit and the status of the applicant ought to be reviewed in light of the constitution of the university and in light of the de facto and de jure management responsibilities of, inter alia, the Board of Governors, the Senate and the Faculty.

2. The second and alternative submission is that the Board review its finding on status in light of what is alleged to be management participation in the formation of the applicant associa­tion.

1. The Appropriateness of the Bargaining Unit.

York University was established by the York University Act, SO. 1959, Chapter 145. Section 2 of that Act established a body corporate composed of, inter alia, the Chancellor, President, Board of Governors and Senate of York University.

The York University Act of 1965, S.0. 1965, Chapter 143 when enacted repealed the earlier statute but by Section 2 of the Act, York University and "all attributes thereof' continued to enjoy all the rights, powers and privileges in existence at the time of the Act together with those conferred by the Act.

It is important to note that the York University Act of 1965 (hereinafter called the 1965 Act) distinguishes between employees and teaching staff. Teaching staff is defined by Section 1(g) of the 1965 Act. The statute further distinguishes between employees and teaching staff (Section 3, Section 10(c), Section 13(2)(d) and Section 15).

The distinction in the 1965 Act between employees and teach­ing staff it is submitted, means that an organization of faculty members cannot be an organization of employees within the mean­ing of section l(l)(n) [now section l(l)(p)] of The Labour Relations Act. The distinction between employees and teaching staff is not merely fortuitous but reflects both the constitution of the University as designed by statute and the committments [sic] and practices of the University which when scrutinized reflect real managerial re­sponsibilities exercised by appointed faculty members.

The comingling [sic] of teaching and managerial activities is not confined to Deans, Associate Deans or others whom the appli­cant agrees should be excluded from any bargaining unit. Indeed, the comingling [sic] of such activities in individual faculty members is characteristic of the collegial administration of the affairs [sic] of York University, because of the 1965 Act as well as the established committments [sic] and practices of the University. We propose that the conflict of interest found by the Board in the case of Hydro­ Electric Power Commission of Ontario, O.L.R.B., M.R., August 1971 at page 504 exists in the proposed application not only because specific managerial personnel have been active in Y.U.F.A. but also because the individual faculty members in Y.U.F.A. are managerial.

Section 11 of the 1965 Act establishes a Senate composed of a number of specified persons together with the full time teaching staff who always constitute a majority of the members of the Senate (Section 11).

The management of the University in general terms is given to the Board of Governors, except as to matters specifically assigned to the Senate (Section 10). Specific managerial functions then are given to the Senate. Section 12 of the 1965 Act makes the Senate responsible for:

— the academic policy of the University (including those matters specifically referred to in subsections (b) to (I) inclusive, such as student admission, curricula, graduation requirements, and the award of fellowships)

— recommending to the Board establishing new faculties, schools, etc.

— establishing faculty councils.

If we were to analogize with an industrial situation, the academic policies of a University determine its "product line", those who are allowed to purchase those "products", and the production units.

The President is, by Section 13 of the 1965 Act, given certain authority. Again the role of the Senate is critical:

— the President is appointed by the Board after consultation with the Senate. Evidence will show that the Senate proposes a short list of candidates from among whom the Board must choose. Similarly, the President and Board must appoint Deans from a short list of candidates approved by faculty.

— the President by Section 13(l)(b) is authorized to direct the implementation of educational policy (determined by the Senate and the faculty)

— the President by Section 13(l)(d) can recommend appointment, promotion, and removal of teaching staff. In this regard, the President in making these recommendations to this Board is governed by the "terms of the University's commitments and practices" (See section 10(c)). Evidence will show that the com­mitments and practices of the University involve the faculty and the Senate in thise [sic] managerial decisions.

Also of importance are the following provisions of the 1965 Act.

Section 10(k) — establishing of faculties is done with the concur­rence of Senate

Section 13(e) — the President can recommend to the Senate the establishment of new faculties, etc.

Section 13(g) — the President can recommend to the Senate regu­lations governing the faculties

Section 13(h) — the President has powers to establish Committees (which are often composed of faculty members) to recommend action on matters affecting the University

Section 14 — the Senate consults with the Board with respect to the appointment of a Chancellor

We are prepared to adduce evidence that the commitments and practices concerning appointing, promoting and removing of teach­ing staff in the University results in this fundamental managerial responsibility being discharged by the teaching staff in a collegial manner. In the important areas of tenure and promotion the faculty participates fully both through faculty and departmental committees and the Senate and its Committee on Tenure and Promotion.

The Senate has established committees to assist it in the exercise of its responsibilities. These committees become thor­oughly involved in the exercise of managerial functions. It is submitted The Ontario Labour Relations Board ought to hear evi­dence on the functioning of such committees (composed of faculty members) as:

— Academic Policy and Planning Committee

— Executive Committee

— Library Committee

— Committee on Research

— Committee on Scholarship and Student Assistance

— Committee on Tenure and Promotion

— Committee on the Organization and Structure of the University

— Committee on Academic Dismissal

• Committee on Bookstore

— Committee on York University Publications

— Committee on Budget

— Committee on Part-Time Faculty

Evidence of the managerial responsibilities of these commit­tees, it is submitted, should be put before The Ontario Labour Relations Board in direct evidence.

As mentioned above, the Senate may create councils in facul­ties by Section 12 of the 1965 Act. Such councils in fact have been established. These faculty councils too participate directly in the management and administration of the University and warrant spe­cific attention. Involvement in the actual allocation of research funds, hiring, tenure, promotion, dismissal, work load allocation and other important managerial functions underlines managerial functions underlines further the involvement of the faculty in the management of the University.

In conclusion, we submit that it is of vital importance for the University and this tribunal, that the matters raised above be thoroughly viewed by The Ontario Labour Relations Board by hearing evidence and argument. We submit that an investigation of the above matters will reveal that the collegial system of governance by the teaching staff pervades every level of management of the University.

We have enclosed for the Board a copy ofThe Senate Hand­book of York University (July 1, 1975 edition). This contains a description of the terms of reference of Committees of the Senate (page 55 ft).

2. The Status of the Applicant.

An alternative submission, if the Board rejects the above argument, is that the Board should review its findings of status. We repeat the position taken in our letter of February 9th. 1976. As indicated at the hearing, we are prepared to call evidence in support of the allegations that Dean Beachy remained active in Y.U.F.A. after March 18th, 1975; that Deans and Associate Deans contributed financially to Y.U.F.A. after the amendments to Y.U.F.A.'s constitu­tion in March, 1975; that a significant number of members of Y.U.F.A. sought to be included in the unit are management by virtue of membership in the Senate or on its Committees.

Based on the above, and the submissions contained in our letter of February 9th, 1976, we request the Board to reconsider its decision dated January 26th, 1976 wherein the Board found Y.U.F.A. to be a trade union within the meaning of the Labour Relations Act.

The final matter raised in our letter of February 9th, 1976 related to the exclusion of certain persons from the bargaining unit. If our positions in 1 and 2 above do not succeed, we repeat this request.

All of which is respectfully submitted.

[From Professor Smyth]

28 February 1976

Gentlemen:

Thank you for your letter of 23 February 1976. In connection with the letter of 20 February 1976, from the solicitor for Professor

Jordan, a copy of which you kindly enclosed I make the following comments.

1. I agree fully that the Board should receive evidence and consider arguments concerning the issues raised in the letter dated 20 February 1976 from Mr. John Murray of Havrlant Robinson Gray Murray Bateman Saul.

2. The letter of 20 February 1976 from Mr. Murray did not note with adequate emphasis the fiduciary status and responsibilities of faculty members in York University as established by the York University Acts 1959 and 1965. By virtue of the provisions of these Acts full-time faculty members at York, who by statute always constitute a majority of the members of the Senate, are legally authorized to share in the management of York Univer­sity.

3. As a result of nearly fourteen years as a faculty member and administrator at York University I confirm that:

(a) The faculty of York University collectively through their role as members of academic departments, through their member­ship in faculty councils which have been created by and function as committees of the Senate and through their elected representatives in the Senate constitute the manage­ment group at York University which makes the following management decisions:

• Who will teach and who will be members of organized research units at York

— Which faculty members will be or will not be promoted

— What will be taught in York University

— Who will and who will not be granted earned academic degrees in York University

— How approximately 70% or more of the budget of York University will be allocated

(b) Faculty members at York University are not directed in the manner in which they do their work; they participate individ­ually and collectively in the appointment and termination of the appointment of faculty members.

(c) Most if not all faculty members participate directly or indi­rectly in the planning, organizing, staffing, co-ordinating, reporting and budget allocation functions of York University. All of these are management functions.

(d) At York University administrators are servants not managers unless they are faculty members. It is their role, of faculty members which makes them managers. If an administrator at York University is not a faculty member he is an employee. In this York's arrangements are in the British not the United States tradition. York faculty members share by law and by practice in management functions.

In conclusion let me stress again the fiduciary responsibilities of faculty members at York University by virtue of the statutory role and operation of the York Senate, which is the only body in York empowered to establish policy. It functions as the chief policy making body of York University. Faculty members manage the implementation of that policy.

I trust these comments are helpful.

14. These letters were put to Professor Smyth during his cross-examination in the present proceeding, and he indicated that he still stands by their contents. He subse­quently wrote, but did not send, a further letter dated July 222, 1976 responding to certain observations made by the Board in its decision of April 6, 1976. In this letter he repeats that it was his desire to assist the Board by explaining the special status of York University as a body corporate under its governing legislation which, in his view, was substantially different from the governing legislation of other universities. He was not, he said, seeking to oppose the issuance of a Board certificate, but rather seeking to explain why, as a matter of law, the Labour Relations Act could not be applied to York.

15. A reading of the letter of February 4, 1976 leaves one with the impression, initially at least, that Professor Smyth was out of the country and unaware of the certification proceedings before the Board. But this impression is quite wrong. In October 1975, in the midst of the union's organizing campaign, Professor Smyth wrote an article in the York Gazette subtitled "Some Observations on the Essential Debate on Faculty Unionization and the Implications of [sic] York's Future". That article, which was filed with the Board, indicates that he was well aware of the organizing campaign going on around him. Moreover, the application for certification itself was filed by Y.U.F.A. on December 5, 1975, and notices to employees were subsequently posted on the York premises. These notices in Form 5 (now Form 6) set out the date, time and place of the Board's hearing and advised employees that any statement in opposition to certification must be filled by the named terminal date, and that employees or their representatives must be prepared to appear at the hearing to speak to the issues. In response to these notices the Board received a document dated December 10, 1975, which reads:

TO: THE ONTARIO LABOUR RELATIONS BOARD

File No. 1394-75-R

IN THE MATTER OF AN APPLICATION BETWEEN:

YORK UNIVERSITY FACULTY ASSOCIATION.

Applicant

• and -

YORK UNIVERSITY

Respondent

STATEMENT OF DESIRE

We, the undersigned employees of York University, hereby respectfully advise this Board that we do not wish to be represented by the applicant herein as our bargaining agent with our employer, the respondent herein.

We also hereby authrozie and appoint James Goodale, C. Hammond Dugan, Douglas Butler, James S. Tait, Paul Herzberg and John Yolton, our fellow employees to be our representatives before this board and to speak on our behalf on all matters relating to this application.

The mailing address for our representatives is c/o Dr. D. Butler, Faculty of Chemistry, York University, 4700 Keele Sreet, Downsview, Ontario, and the name of our solicitor is Benjamin

Lamb, Q.C., Messrs. Dillion, Cronin & Lamb, Suite 1002, 111 Richmond Street West, Toronto, Ontario.

DATED this 10th day of December, 1975.

NAME(Printed) SIGNATURE WITNESS

Professor Smyth's name appears on this document and counsel did appear at the hearing on behalf of the named employee objectors. In addition, Professor Smyth does not deny that he himself was actually in the hearing room when the case came on before the Board on December 22, 1975. Thus, to the extent that Professor Smyth's initial letter to the Board (dated February 4, 1976) creates the impression that he was out of the country and unaware of the Board's proceeding it is obviously (and in the union's submission intentionally) misleading.

16. The union seeks to rely on these letters and documents for two reasons. Firstly, it asserts that they cast doubt on the applicant's veracity in the instant case. The union argues that, having misled the Board before when a lack of notice would have supported his case, the Board should be wary of accepting his evidence of professed religious belief now that that is the element he must demonstrate. Secondly, the union argues that this series of letters reveals the "real reason" for Professor Smyth's opposition to the union — opposition which, in the union's submission, is grounded on his analysis of the legal framework governing York University (which Professor Smyth helped draft), and has nothing to do with his religion.

17. There is support for both propositions in the replies given by Professor Smyth on cross-examination; and regrettably, we are constrained to note that we did not find some of those replies as candid or forthright as they might have been.

18. Professor Smyth testified, somewhat surprisingly, that "no reasonable person could construe his activities as being opposed to the union". He was, he said, simply seeking to establish the truth. With respect, it is difficult to construe his signature on the anti-certification petition any other way; nor, if he were not really opposed to the union is it easy to understand his close association with an informal organization of Professors known as the Independent Faculty Movement (I.F.M.) which also sought to oppose Y.U.F.A.'s application. Professor Smyth's name appears on a number of I.F.M. pamphlets (including one with a piece entitled "HOW to Stop Unionization") as an individual who can be contacted for further information. In the circumstances, it is a little difficult to understand Professor Smyth's assertion that he was not opposed to the union and that no reasonable person could construe his activities in this way. It is also a little difficult to reconcile his evidence that adherents to the Quaker belief do not proselytize (advanced in response to counsels question about whether he solicited support for the anti-union petition) with his name appearing on I.F.M. literature and his appearance in debate on the pros and cons of trade unionism held at LakeheadUniversity.

19. Professor Smyth's concern with the trade union did not end with its certifica­tion. He supported a subsequent application for judicial review, and was disappointed because, in his view, employee counsel (John Sopinka, Q.C.) had not adequately advanced his argument. On May 1, 1978, he co-signed a letter to the Board of Governors to which was attached a petition signed by some 277 Faculty members opposing compulsory trade union membership or dues payments as a matter of principle and in defence of academic freedom. When asked why this material did not raise religious concerns, Professor Smyth replied that "the Lord advises us to be wise as serpents and [appear] harmless as doves" — by which he meant that it was expedient to frame the submission in a manner which would be most likely to appeal to the constituency. A similar explanation was advanced in respect of the I. F.M. pamphlets which, according to Professor Smyth, contained a number of arguments with which he did not agree but to which he did not object. Once again, to put it colloquially, Professor Smyth was content to see the argument framed in a manner which would "sell" even though he said, he did not personally accept all of the arguments advanced over his name. Professor Smyth repeated the same biblical injunction in response to counsel's enquiry about the delay in filing the instant application. If supporting the union was so deeply offensive, counsel asked, why did Professor Smyth not seek exemption in a more timely fashion but, rather waited until the first and leading case (Butler) had already been decided. The Butler decision issued on September 28, 1981, and it was not until February 26, 1982 that the instant application was filed.

20. However apt the biblical quotation may be, we find it vaguely troubling in the context of a proceeding in which the Board must determine whether an individual's opposition to a trade union is because of his religious beliefs or, alternatively, whether religion is simply being advanced because it is necessary to do so in order to succeed under section 47. The union contends that, as before, the applicant is simply telling the Board what it has to hear. We also note Professor Smyth's admission that he discussed with others the applications they intended to make under section 47, and attended at least one hearing where the applicant gave his/her evidence, and was questioned in much the same way as Professor Smyth himself subsequently was. The respondent asserts that this too must be considered in assessing his credibility.

21. Professor Smyth was rigorously cross-examined on his views respecting trade unions — especially after his initial assertion that he was not really opposed to the Y.U.F.A. organizing campaign at all. Over the course of this cross-examination (at different points and in response to different questions), counsel elicited a series of responses which were both consistent with each other, and with the rationale for opposing the union set out in Professor Smyth's various letters to the Board.

22. In Professor Smyth's view, the faculty cannot be "employees" within the meaning of the Act, because through their participation on the various bodies estab­lished for the University's governance, they are properly regarded as "academic managers" rather than employees of the University. Professor Smyth was not opposed to the Y.U.F.A. he said, he only wanted York to operate "in accordance with its constitution" — which, as he saw it, was inconsistent with the existence of a trade union. He was opposed to the union, he finally conceded, "in the actual legal context of York University". He testified that he was not proselytizing on behalf of a cause, he simply wanted the "rule of law" to prevail. He wanted the University to "act in accordance with the York University Act", and to "live up to its charter". He said that the union was not only unnecessary, but he was opposed to it given the York constitution and the York University Act of 1965. Indeed, in his view, even if the union renounced the use of the strike weapon (to which he was opposed) and opted for arbitration, he told the Board he would still be opposed because the York University Act, as he reads it, excludes the possibility of trade unionism. And, it will be recalled that Professor Smyth is something of an expert on university government and had a hand in developing the legal framework for York University. Professor Smyth told the Board that the charter for Carleton University is quite different. There, the Faculty are clearly employees, whereas at York they have a different and superior status within the Institution.

23. Professor Smyth initially testified about his objection to certain statements in the Y.U.F.A. leaflets, which he referred to as an illustration of the features of a trade union which he disliked. He admitted on cross-examination, however, that it really didn't matter what was in the pamphlets or what position the union took. His point was that "as academic managers" of the University, the faculty could not have a union at all. They could not, in effect, bargain with themselves. Nor was he opposed to compulsion at York in respect of such unilaterally imposed employee deductions as pension plan payments or other global employee plans which restricted the right to opt out. In this context Professor Smyth saw no room for dissent. Employees who did not like the arrangement could work elsewhere.

24. These submissions essentially repeat those which Professor Smyth made to the Board in 1976, and which were made on Professor Jordan's behalf by J. C. Murray, who was then his counsel. They reflect a legal analysis grounded in the relationship between the York University Act and the Labour Relations Act; and, it must be admitted, that (apart altogether from the particular wording of the York statute) the University is a unique institution with collegial forms of decision-making which are very different from those prevalent in private industry. Indeed, the notion that the Faculty are the "academic managers" of the University was developed and debated before the Supreme Court of the United States in N.L.R.B. v. Yeshiva University, (1980) 103 L.R.R.M. 2526. But however cogent this legal analysis may be, and however deeply this view is held, it is not a "religious conviction or belief' within the intended meaning of section 47 of the Act.

25. Despite certain concerns which we have already expressed, we have no doubt that Professor Smyth holds views which are unquestionably religious and that he holds those views sincerely. On the basis of the totality of the evidence before us, however, we reject his contention that it is those religious beliefs which prompt his opposition to the trade union. On the contrary we find that his opposition is based upon the legal analysis or argument to which we have already referred and which is grounded upon an interpretation of the York University Act (which, as noted, he had a hand in drafting). Further, we do not find that this legal analysis or question of statutory interpretation is grounded on Professor Smyth's religious convictions, despite the religious gloss which he now seeks to give it. No doubt Professor Smyth sincerely believes that trade unionism is inconsistent with the charter and constitution of York University. However, in our view, this belief is not a religious conviction, does not, in his case, stem from a religious conviction, and does not fall within the ambit of section 47 of the Act.

26. The application is therefore dismissed.