Robert P. McEachran v. The York University Faculty Association, 1982 CanLII 894

[1982] OLRB Rep. May 804

1081-81-M Robert P. McEachran, Applicant, v. The York University Faculty Association, Respondent Trade Union, v. The Board of Governors of York University, Respondent Employer

BEFORE: N. B. Satterfield, Vice-Chairman and Board Members J. D. Bell and 0. Hodges.

APPEARANCES: G. Vandezande for the applicant; S. Price and H. Buchbinder for the respondent trade union; no one appearing for the respondent employer.

DECISION OF N. B. SATTERFIELD, VICE-CHAIRMAN AND BOARD MEMBER O.

HODGES; May 7, 1982

1. The applicant has applied pursuant to section 47 of the Labour Relations Act for an order from the Board that he be exempted from paying due, fees or assessments to The York University Faculty Association ("the Association") because of his religious conviction or belief. The applicant is one of several persons who have sought relief under section 47 of the Act from recently negotiated, compulsory checkoff provisions contained in the current collective agreement between the Association and the respondent employer ("York"). Section 47 of the Ac: provides that:

47(1) 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.

2. When considering applications under that section for relief from payment of dues, fees or assessments, the Board has identified in its decision in Helen Wybinga, [1976] OLRB Rep. Aug. 422, three questions which it must ask itself about the nature of the applicant's beliefs and these are:

3. Are the beliefs sincerely held?

4. Are the beliefs religious?

5. Are the beliefs the cause of the objection to paying dues to the trade union?

In the case at hand, in order for the Board to be able to issue the exemption order sought by the applicant, it must be able to answer each question in the affirmative. The Board has no difficulty, on the evidence before it, in answering the first two questions in the affirmative. There is no doubt, in the Board's view that the applicant has strong personal religious beliefs, sincerely held. The difficult question is whether the applicant's religious beliefs are the cause of his objection to paying dues to the Association.

3. Like the other applicants whose request for relief from the requirement to pay dues to the Association under the current collective agreement between it and York have already been determined by the Board, the applicant herein has a history of opposition to the Association. See the Board's decisions in The Board of Governors of York University; [1981] OLRB Rep. Sept. 1319 (re Douglas N. Butler), and in The Board of Governors of York University (Jordan) [1982] OLRB Rep. Jan. 149; re Alfred B.P. Lever, Board File #1080-81-M issued January 11th, 1982 (unreported); re Helen Sarah Freedhof, [1982] OLRB Rep. Jan. 135; 0. Aspinall, Board File #1076-81-M, issued February 5th, 1982 (unreported); re James S. Tait, Board File #1526-81-M, issued February 5th, 1982 (unreported); and re Walter Beringer, Board File #1077-81-M, issued February 15th, 1982, (unreported).

4. The applicant has been employed by York since July 1, 1964 and is a professor of physics. He became a member of the faculty association which was the forerunner of the Association when it was first formed. He ceased his membership when that association adopted a procedure of collecting dues from members by salary deduction. He re-joined it when that system was revoked. He resigned his membership the second time in December 1975 when the association was moving towards becoming a trade union within the meaning of this Act. He affiliated himself with other faculty members who were opposed to this move by the association. They referred to themselves as the Independent Faculty Members ("the IFM"). The applicant was not one of the group of IFM members who appeared at Board hearings to oppose the Association's application for certification in 1976. Nor did he partake in the instructions of counsel acting for the IFM. His support of the organization was limited to financial contributions and attending a few of its meetings.

5. When the Association was successful in becoming certified and in concluding a collective agreement with York, the applicant availed himself of the provisions contained in the first two agreements which permitted persons who were not members of the Association to opt out of having an amount equivalent to membership dues in the Association deducted from their salaries and remitted to the Association. Instead, providing they duly filed a declaration that they did not want to pay dues to the Association "...,on grounds of affirmatively expressed religious belief or personal conviction ", they could have the equivalent amount deducted and remitted to a stipulated bursary/scholarship fund. His declaration was addressed to Mr. W. D. Farr, and executive of York and its text is set out below:

I, Robert P. McEachran, of the Faculty of Science, 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 be 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 :he purported Collective Agreement, such monies be paid into the Ruth Hill Memorial Scholarship Fund referred to in the purported Collective Agreement.

Although unions were justified in the far distant past, in the days of the sweat shops and coal pits, as a means of needed social reform, it is my strong personal conviction that unions with their adversary (employee vs. management) nature have long outlived their usefulness and are now a detriment to both the country and society. In more enlightened societies the original union concept is slowly being dispensed with and is gradually being replaced by a system whereby employees are involved in a more collegial manner in some management decisions.

It is my personal conviction that for a University to revert to the original union concept is an abhorrent and retrograde step which will further degrade its public image, seriously inhibit its academic functions and responsibilities, and encourage is demise to an Institution of intellectual mediocrity.

Thus to be compelled to be a member of YUFA I would find both morally and professionally debasing.

6. The applicant was also one of 277 faculty members who signed a petition filed with the Board of Governors of York in support of retaining the "opting out" provision referred to above because of an apprehension that it might be negotiated out of the 1978-80 collective agreement. He was not an organizer of the petition and did not partake in its circulation other than to sign it While the provision was retained in that agreement, it was removed from the successor agreement which was signed May 13th, 1981. When the applicant became aware that this was to be the case, he addressed a letter to Farr dated April 29, 1981, the text of which states:

Please be advised that I cannot in good conscience join and/or pay dues to the York University Faculty Association because of my religious convictions.

His application for an order under section 47 of the Act was filed August 12th, 1981. The application stated the grounds on which the applicant was seeking exemption from the payment of dues to the Association in the following terms:

"Compulsory financial support of the York University Faculty Association violates my religious convictions and beliefs. My religious convictions and beliefs include such fundamental individual freedoms and human rights as those of freedom of speech, religion, association and assembly. I further believe that as a professional scientist, supported in both my teaching and research from the "public purse", I have a firm moral obligation and commitment to society to discharge these responsibilities and to further enhance my profession to the best of my ability and at no time to betray that trust. Support of YUFA would be a betrayal of that trust."

(emphasis is the applicant's)

7. The applicant is not a member of an organized church and while he periodically attends religious services he does not regularly do so. His religious beliefs are individual, personal ones and are based on the teachings of the Old Testament as expressed by the Ten Commandments and on the tenets of Christianity as expounded throughout the new Testament. He extends the Tenth Commandment of the Old Testament, "Thou shalt not covet thy neighbour's house,... thy neighbour's wife . . . nor anything that is thy neighbour's." to mean that one must not in any way inflict harm on one's neighbour, possess him, infringe on his individual rights and freedom's, including his religious freedoms. He views as the central feature of the tenets of Christianity the requirements to love thy God with all thy heart and soul and strength and to love your neighbour as yourself and considers the teachings of the New Testament to be summarized in his paraphrase of the Golden Rule, "do unto others as you would have them do unto you". He believes in God and his view of God is that He is the ultimate truth in the universe.

8. These beliefs evolved over time from his mid-teens, when he experienced a breach with his parents which involved him ceasing regular attendance at church on Sundays, through a period of atheism, then agnosticism until the beliefs crystallized in the early 1970's. Since then, they have been the principles by which he tries to live his life, but, until he brought this application, he had not discussed his religious beliefs with anyone including his wife, because two events during their evolution had caused him to conclude that religion was a very personal matter which was best kept within oneself. The first event was the breach with his parents over church attendance, following which religion was never again discussed between them. The second was being ostracized during his late teens by his friends because he insisted on expounding his atheistic views. He told the Board that he did not vary from his decision to keep his religious beliefs to himself and was reluctant to discuss them with Mr. Vandezande until Mr. Vandezande told the applicant that he would not represent him unless he was prepared to do so. This was a major reason, according to the applicant, but not the only one for using "personal conviction" as grounds for opting out of the payment of dues to the Association in 1977. He chose "personal conviction" for two other reasons. He maintains first that the term is ambiguous arid that the words "religious belief' could be substituted for it without changing the meaning of his objection and, second, that there is nothing more personal than religious beliefs and all of his religious beliefs are also personal convictions.

9. Were the applicant to be given the same option today, he would still choose to give "personal conviction" as his grounds for opting out, even if he knew that "personal conviction" would be held to be secular grounds. He gave three reasons for this stand: secular arguments are more universally understood than religious ones in a world where there is no single, universal church; the religious views of the person to whom he had to address his objections were unknown to him and he did not know if this person alone would determine the acceptability of the reasons; and religious beliefs, because of their intensely personal nature, should not be debated.

10. That explanation may assist in understanding why the applicant chose to ground his objection to the payment of dues to the Association on his personal conviction rather than his religious belief. Nonetheless, while his reluctance to reveal his religious beliefs as the basis of his objection may be understandable, it remains that they are the only grounds on which he can be relieved of the obligations of paying dues to the Association now that the opting out provision is not available. It was the apprehended loss of that option which caused him to write his April 29th letter to Farr, using for the first time his "religious convictions" as the reason for his inability to support the Association. When elimination of the option became a reality he made this application stating the "Compulsory financial support of [the Association] violates my religious convictions and beliefs." The applicant maintains that his opposition to the Association throughout has been rooted in his religious beliefs even though, for the reasons which he explained to the Board, he characterized them as personal convictions until section 47 of the Act became the only avenue open to him to avoid support of the Association. In view of the assertion, the Board not only is entitled to evaluate the grounds advanced in support of this application in the light of his earlier opposition to the Association, it is obligated to do so before it can be satisfied whether it is the applicant's religious conviction or belief that causes him to object to paying dues to the Association.

11. The facts with respect to the applicant's opposition to the Association are limited to his financial support of the IFM, his attendance at a few of its meetings, his exercising of the opting out of the payment of dues to the Association and his signing of the 1978 petition. Neither his support of the IFM nor his signing of the petition required the applicant to declare or reveal the basis of his opposition. It could have been his religious beliefs, as he claims it was, or it could have been a mixture of grounds including his religious beliefs, or it could have been devoid of any religious component. In the absence of any need for him to reveal the grounds for his opposition, those actions are of neutral value in assessing his present grounds. Only when he opted out or paying dues to the Association was he required to make any declaration. Given the choice of declaring his objection on grounds either "...of affirmatively expressed religious belief or personal conviction,...", he chose to declare "personal conviction" for the reasons given above.

12. Nonetheless, the applicant maintains that his opposition to the Association throughout was based on his religious beliefs and that his personal convictions are those principles by which he tries to live his life which, in turn, are rooted in his understanding of the teachings of the Old and New Testaments and on which his religious beliefs are founded. His simple assertion that this is the case is not enough to make it so, however, and the Board must examine the substance of his assertion. The Board might find that assertion more persuasive if the applicant's "opting out" letter was expressed in terms which evoked a semblance of religious feeling. As it is, his concern that unions have become .... . a detriment to both the country and society" and the observations offered before and after that comment in the third paragraph in his letter are entirely of a socio-political nature. Even if one accepts his equating of his "strong personal conviction" as used in that paragraph "with his personal religious beliefs" it does not raise the comments from essentially secular ones to religious ones. In the fourth paragraph the applicant focuses his general concern about the role of unions in society on the potential impact on a union at York. Again his concerns are expressed in secular terms without any hint of their relationship to his religious beliefs or his concept of God as the ultimate truth in the universe.

13. When the applicant was asked by Mr. Vandezande at the hearing what he meant in the fourth paragraph when he said ". . . to revert to the original union concept is an abhorrent and retrograde step .... ", he replied that the move away from collegiality was abhorrent and for the faculty at York to go on strike would downgrade it in the eyes of the public and, therefore, would be a retrograde step. The applicant also told the Board that salary conditions negotiated by the Association downgraded merit pay and that this condition, together with a provision in the collective agreement for reducing staff, when needed, on a last in first out basis without regard for merit, was a retrograde step because it promoted and emphasized mediocrity. These elaborations on the applicant's statements in his "opting-out" letter appear to the Board to be a further expression of his views as to what atmosphere should or should not prevail at York and do nothing to dispel the impression that they are entirely secular in nature and absent any link to his religious beliefs.

14. The link to his religious beliefs is made, however, in his explanation of the final paragraph of the letter. He told the Board that to compel him to support the Association financially by the payment of dues would be to compel him to support any actions which it might take, including a strike. This would be morally and professionally debasing because it would violate his responsibility to society. He sees his responsibility as arising from the fact that society provides the funds which support his academic pursuits, particularly his research. To violate that responsibility would be contrary to his religious belief that both testaments of the Bible obligate him to be responsible to and for his fellow man.

15. The applicant's concern about the adversarial nature of the collective bargaining relationship centres on the strike and similar job actions. At York he maintains that a strike would impact adversely and primarily on the students, who are innocent third parties, and not on the employer. A strike would also impact on outside groups which meet on the campus because picketing would frighten them away, a result he sees as being harmful to York's reputation at large. He considers other job actions contemplated by the Association during the last round of bargaining to be of a similar nature. To withhold students' grades would harm the students' chances for jobs or for graduate school and would be morally reprehensible. To not teach classes would be a dereliction of his duty. These products of the adversarial relationship violate the teachings of the New Testament that one must respect all individuals and the applicant's view of the tenth commandment that he must not infringe upon the rights and freedoms of others, teachings which underlie his religious beliefs.

16. The applicant told the Board that he does not consider all strikes to be actions contrary to t.ne dictates of scripture as he interprets it, but he is fundamentally opposed to strikes in a university context because he considers them to be directed against the students and not against the employer. For that reason strikes at York would be contrary to the dictates of scripture and his religious beliefs. He holds the same view of strikes of ambulance drivers and doctors. On the other hand he does not hold the 1981 strikes of Stelco employees and major league baseball players to be actions contrary to his interpretation of scripture. He does not explain the distinction, but presumably he does not see them as injurious to innocent third parties. While he takes a similar position in respect of unions per se, that is he is not opposed to all unions but does object to the adversarial actions of some, particularly strikes, he would remain opposed to the Association as long as it remained a trade union and even were it to undertake not to strike, restore merit pay, abandon the last in first out principle for lay offs and the compulsory payment of dues.

17. It is from these facts that the Board must determine whether it can be satisfied that the applicant's objection to paying dues to the Association is based on his religious beliefs. One thing is clear from them; the applicant's objection is not based solely on his religious beliefs. No doubt his objection to strikes and other forms of job actions which harm or impinge upon innocent third parties is religious in nature. So is his objection to strikes at York which would interrupt his teaching and research and thus interfere with him fulfilling his duty to society which supports that work. His objection in both instances is based on the principles which underlie his religious beliefs, therefore it is religious in nature. On the other hand his views concerning unions not being appropriate in a university setting, the destruction of the collegial process, the downgrading of merit pay and the elimination of merit as a consideration in lay offs are more an expression of the applicant's ideas of what conditions should prevail in a university environment, or more to the point, at York. These are socio-political beliefs, not religious ones. This mixing of religious and socio-political motivation is particularly evident in the way the applicant has framed this application (see paragraph 6 above). In fact, were it not for his use of the phrase "my religious convictions and beliefs" in the first two sentences, there is nothing to associate his objection to being compelled to give financial support to the Association with his belief in God as the ultimate truth in the universe or to his perceived duty to obey the teachings of God as set out in both testaments of the Bible which are the cornerstone of the applicant's religious beliefs. It only became apparent that there was also a religious motivation to his objection when the applicant had the opportunity in the hearing to elaborate his views.

18. Mr. Vandezande argued that the presence of a non-religious motivation together with a religious one did not deny the applicant relief under section 47. Mr. Vandezande contends that section 47 entitles the employee to relief as long as his religious belief or conviction forms part of the employee's objection to paying union dues. In this respect he relied on the Board's decision in Hogeterp v. U.A. W. v. General Motors, [1972] OLRB Rep. Feb. 132, which states at paragraph 11:

19. '.. ., it is not the religious convictions or beliefs of a certain religious sect that must be determined under section 39 [now section 47] of the Act. The religious conviction or belief on which the objection or belief must be based is the personal conviction or belief of the applicant and accord­ingly is a subjective matter. We are satisfied that the applicant objects to joining and supporting the respondent union because of his religious conviction or belief. The fact that his conviction or belief grew out of his relationship with C.L.A.C. rather than the church of which he is a member in no way detracts from the nature of his religious objection. Again, although we accept the view that his motivation in making his application is based, at least in part, on his desire to have minority representation by C.L.A.C. by those who share his objections, his preference for C.L.A.C. is based on religious grounds. His support of C.L.A.C. and his religious convictions or beliefs are intertwined and indeed are in separate. This dual motivation, because of its religious connotation, does not deprive the applicant of the relief afforded by section 39 of the Act. The "objection" referred to in section 39 of the Act need not [be] the sole objection or even the primary objection to membership or support of a trade union. As long as an applicant has a bona fide objection because of his religious conviction or belief, he is entitled to the relief afforded by section 39 even if he holds an objection to membership in and support of a trade union because of some other ground.

While that decision speaks of a "dual motivation" underlying Hogeterp's objection, it was neither a dual nor a mixed motivation. This is evident from the Board's comments immediately preceding the reference to dual motivation that

"Again, although we accept the view that his motivation in making this application is based, at least in part, on his desire to have minority representation by C.L.A.C. by those who share his objection, his preference for C.L.A.C. is based on religious grounds. His support of C.L.A.C. and his religious convictions or beliefs are intertwined and indeed are inseparate."

Thus, when the Board went on to observe that the religious objection to membership in or support of a trade union need only to be bonafide and not the sole or primary cause for seeking exemption, its remarks were clearly in obiter. This fact was noted by the Board in Helen Sarah Freedhof supra, at paragraph 27, which dealt with the issue somewhat differently (see infra).

19. The reliance of an applicant on dual or mixed motivation, as is the case herein where religious and non-religious motives co-exist, does not change the Board's task as compared with a situation where a religious motivation alone is advanced as the reason for the objection. The test is the same. The Board must be satisfied that an applicant objects to the paying of union dues or joining a trade union because of his religious conviction or belief. If the Board is so satisfied, section 47 gives it the discretion to order whether the pertinent provisions of a collective agreement are to apply to an applicant. Before the Board decides on the exercise of its discretion, it must be satisfied that it is this applicant's particular religious belief which prevents him from paying dues to the Association. The Board must find, in other words, that the applicant's religious belief is standing in his way. That is what the Board has said at paragraph 28 of its decision in Helen Sarah Freedhof supra, and in our view, that is all it says:

20. In this case there is an apparent bonafide religious conviction or belief on which the applicant bases her objection; however, there is also a set of convictions or beliefs which are not religious on which the application is also based. As pointed out in [Klaas Stel v. The North York Civic Employees' Union, Local 94. Canadian Union of Public Employees, [1971] OLRB Rep. July 363.], section 47 is discretionary —the Board "may order" that the collective agreement provision does not apply. In Stel the Board declined to state how this discretion would be exercised, and all subsequent cases have wisely refrained from so doing. This Board will not comment on how the discretion should be exercised either; however, the wording of the section — the need for the Board to be "satisfied" and the presence of the discretion — leads us to conclude that there never was any legislative intention that the exemptions should be granted automatically whenever an applicant could point to an apparent religious belief or conviction on which to base an objection, when the general overall thrust of the objection was not religious in nature. It is our view that, when the overall thrust of the objection is seen not to be religious, the objection cannot be characterized as being "because of [the applicant's] religious conviction or belief' within the meaning of section 47. The presence and relative importance and weight given to the obviously non-religious reasons must be considered, based on the evidence in each case. . . . It should be noted that the burden is on the applicant to satisfy the Board, on balance, that section 47 relief should be granted, and that the applicant is not entitled to the benefit of any doubt. [emphasis added]

21. The applicant is unquestionably of the view that all of his objections to paying dues to the Association are firmly grounded in his religious beliefs and therefore that he is entitled to relief from the obligation to pay those dues. The Board is not quite as ready to draw the same conclusion for several reasons. The applicant is selective about when strikes or unions are objectionable to him. Many of his objections are particular to his job and to the effect of unionization in a university setting, in other words, at York. He obviously attaches substantial importance to the climate in which he works, and so he should. But most of the job actions and products of the collective bargaining process which he fears will adversely influence that climate are the very matters which are the source of his non-religious concerns. Indeed, the paramount position of these concerns amongst all of the grounds for his objection strongly suggests that the applicant may be rationalizing his specific concerns about and dislike for unions in a university setting in terms of his religious beliefs, a conclusion, if reached, which would be analogous to the conclusion reached by the Board in its decision in the University of Windsor, [1979] OLRB Rep. May 458, at paragraph 9:

".. Rather it appears to the Board to be a case where the applicant has rationalized his general objections to trade unions in terms of his religious beliefs."

21. As a result of the selective nature of the applicant's objection to unions and the essentially secular nature of his particular objection to unions in a university setting, the Board is not convinced that his objection to paying union dues to the Association is tied to his belief in God, or to his reverence for or desire to please God. In these circumstances the Board is not satisfied that it is the applicant's religious beliefs which prevent him from paying dues to the Association. It follows, therefore, that the Board is not satisfied that the applicant's objection is caused by his religious beliefs.

22. For all of these reasons the application is dismissed.

DECISION OF BOARD MEMBER J. D. BELL:

1. I dissent.

2. Professor McEachran has a deep and conscientious objection to being required to support the York University Faculty Association. He stressed that to support a union, particularly at a university, would violate those things which he values most highly and most important to his life.

3. The sincerity of the applicant is referred to by the majority decision. Paragraph 2 states in part:

(a) "There is no doubt, in the Board's view that the applicant has strong personal religious beliefs, sincerely held."

Also paragraph 19 states:

(b) "The applicant in unquestionably of the view that all of his objection to paying dues to the Association are firmly grounded in his religious beliefs-".

4. The Board in Hogeterp v. U.A. W, supra, stated at paragraph 11,

"The 'objection' referred to in section 39 (now section 47) of the Act need not be the sole objection or even the primary objection to membership in or support of a trade union. As long as an applicant has a bonafide objection because of his religious conviction or belief, he is entitled to the relief afforded by section 39 (now section 47) even if he holds an objection to membership in and support of a trade union because of some other ground".

5. As a member of the panel of the Board which arrived at this unanimous conclusion 10 years ago I believe it was a proper decision. The statement, "the objection referred to in section 39 of the Act need not be the sole objection or even the primary objection" has been referred to often and never considered to be obiter by the Board nor to my knowledge has anyone argued before the Board that it was. I do not agree with the panel of the Board that has now decided this statement is obiter — Helen Sarah Freedhof supra.

6. I would grant the application.