Messaouda Danielle Boulakia v. Hillel Academy Teachers' Association, 1983 CanLII 811

Ontario Labour Relations Board

[1983] OLRB Rep. January 87

1553-82-M Messaouda Danielle Boulakia, Applicant, v. Hillel Academy Teachers' Association, Respondent Trade Union, v. Ottawa Talmud To­rah, Respondent Employer

BEFORE: R. O. MacDowell, Vice-Chairman, and Board Members I. Stamp and P. J. O'Keeffe.

Appearances

M. Danielle Boulakia in person; John B. West for the respondent trade union; no one for the respondent employer.

Decision of the Board; January 19, 1983

1. This is an application for religious exemption made pursuant to the provisions of section 47 of the Labour Relations Act. That section 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 (I) 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.

No objection is taken to the timeliness of this application. The applicant asserts that because of her religious convictions or beliefs, she is unable to be a member of the respondent union or pay the dues prescribed by Article 11 of the current collective agreement between the union and the School.

2. A hearing in this matter was conducted in Ottawa on December 16, 1982. All parties were given the opportunity to lead evidence and make submissions. No one appeared on behalf of the respondent employer. For ease of reference, the two respondents will be referred to simply as "the union", and "the employer" or "School".

3. The applicant is a part-time teacher at the Hillel Academy run by the Talmud Torah Board. These are non-profit organizations, having as their objects the advance­ment of religious, cultural, linguistic, and secular education for Jewish youth in the Ottawa/Hull region. The School has various divisions and employs approximately thirty-nine teachers. Thirty of them are Jewish. The applicant has worked for the School for about four years.

4. The union was certified to represent the teachers at the School on June 19, 1981. The applicant supported that application for certification. On May 19, 1981, she voluntarily applied for membership in the union. Her application for membership, along with that of other employees, formed the basis for the Board's decision to certify the union. Her application was accompanied by an immediate payment of five dollars, and specified that thereafter, there would be a monthly membership fee of fifteen dollars payable on the first day of each teaching month. Indeed, through a travel agency in which she has an interest, Ms. Boulakia made the travel arrangements for the union representatives who appeared at the certification hearing in Toronto. Initially, at least, the applicant did not oppose the trade union or collective bargaining, nor did she consider that process antithetical to her own interests or the relationship between the school, the teachers, and the community. Nor does the union or the employer. Article 1 of the collective agreement provides, in part:

The parties share a desire to improve the quality of education and services to the students and to meet community interest. For this purpose and in order to promote harmonious and mutually beneficial relationships between the Board and [the union], the parties hereby set forth certain terms and conditions of employ­ment......

In view of the desire of the parties to maintain harmonious relationships and to provide the highest quality of educational service, the parties agree that there shall be no strike or lock-out during the term of this Agreement....

5. After the certification of the union, the applicant attended a number of meetings and, for some months, continued to pay the specified monthly dues. Unfortunately, negotiations with the employer were not proceeding as smoothly as expected, and the applicant became concerned about the potential ramifications for the School and the community — particularly when her colleagues began to contemplate the possibility of a work stoppage. Over a period of time before there were three strike votes conducted. In each case, Ms. Boulakia, along with five or six other teachers, voted against going on strike.

6. Ironically, it was not the union which initiated a work stoppage. In May, 1981, the School authorities imposed a lockout, and the teachers were ultimately off work for two or three days. During that work stoppage the applicant did not engage in picketing but rather did "alternative duty" on the telephones at the home of one of the union officials. Ultimately, however, the work stoppage was short, the difference between the parties was resolved, and a collective agreement was concluded. The agreement was ratified by the employees in a secret ballot vote in which Ms. Boulakia took part.

7. The evidence strongly suggests that had there not been a collective bargaining impasse culminating in a work stoppage, Ms. Boulakia would not have made this application. But as time passed she became deeply concerned about the relationship between the teachers and parents in the community. Many of those parents were her friends, and strongly disapproved of the potential disruption of the School attributed to the union's collective bargaining efforts. Ms. Boulakia told the Board that there was a change of atmosphere which prompted pangs of conscience and a reconsideration of her original support for the union.

8. Ms. Boulakia testified that, for some time, she had been torn between sentiments of solidarity which she felt for her fellow teachers, and her growing concern that the process of collective bargaining was undermining the role of the School in the community and the amicable relationships which had existed before. Nor was Ms. Boulakia alone in this view. Several of her colleagues were also opposed to resort to a strike, and so indicated in the several strike votes which the union conducted. The difficulty for the Board is to distinguish Ms. Boulakia's opposition, which she asserts is based on religious grounds, from that of her colleagues and (for the most part) co-religionists, most of whom supported the union and the strike, and some of whom, like Ms. Boulakia herself, were concerned about the potential affects of the work stoppage. Of those opposed only Ms. Boulakia asserts her opposition on religious grounds. Moreover, we note once again the irony that it was the community representatives on the School Board who initiated a lockout, even though, presumably, they too were concerned about the disruption a work stoppage might cause.

9. There is nothing in Jewish teaching or tradition which, in a general sense, prevents support for a trade union. Historically, Jews have played an important role in the development of the labour movement both in Europe and North America, and, in Israel, the Jewish labour movement (Histadrut) is an important national force. Teachers in Israel are unionized and are part of Histadrut. Indeed, Ms. Boulakia testified that she was not opposed to trade unions per se. She said that if she were working in the civil service or an ordinary secular school she would have no difficulty in supporting a union or strike action. She would not be concerned with the interruption of services to the general community or even the interruption of children's education. It was the unique functions of this School, and its special relationship with the Jewish community which prompted her concern. Likewise, she was not opposed to the respondent union per se — only her own participation in it. In her submission, her colleagues should be free to express their views in this regard. Her opposition was personal. Others would (and clearly do) have a different view. Ms. Vardi, for example, who teaches Jewish religion, law, custom and prayer, does not find her support for the union incompatible with her religious beliefs.

10. It was evident that the applicant's concerns are sincere, but it is much more difficult to discern how they are rooted in religious belief. When asked this question specifically, Ms. Boulakia was unable to provide an answer. She was not being evasive or unresponsive. She simply had difficulty articulating the basis for her opposition other than as follows: she was Jewish, she was teaching in a Jewish school, the School performed important social, educational, cultural and religious functions in the community, education itself is an asset which Jews particularly value, and the activities of the union led to an interruption of the School's activities and dissension in the Jewish community. This is the basis for the "pangs of conscience" to which she referred in her evidence.

11. Ms. Boulakia does not uniformly follow the traditions associated with Orthodox Jewry, nor was she familiar with any Jewish principles or precepts which would support her current position. She said that it was not founded upon her reading of the Bible or other religious texts, nor from the teaching of, or her discussions with, Rabbis. Nor could she identify anything in her education, background, or tradition which provided a religious foundation for her current position — other than, as she pointed out, the importance of education and the School as a vehicle for inculcating religious and cultural values. But, as we have already noted, the acceptance of these general principles has not prevented her fellow teachers from engaging in trade union activity, nor the School authorities from imposing a lockout. Can it be said, then, that Ms. Boulakia's opposition to certain activities of the union or the consequences of collective bargaining, however sincere it might be, is grounded upon religious principles — as opposed to a simple concern about the potential consequences of a work stoppage which she shares with other members of the community, and which they have communicated to her? Are her "pangs of conscience", however genuine, sufficient to trigger section 47, which refers not to a "conscientious objection" but to "religious conviction or belief'? Is it sufficient to simply assert that her opposition is based upon religious belief, when the religion to which she adheres — Judaism — does not prohibit trade union activity, and she cannot identify or articulate a religious underpinning for her position? The question is a perplexing one.

12. The Board's approach to the interpretation of section 47 has been recently reviewed in York University Re Douglas N. Butler [1981] OLRB Rep. Sept. 1319. It is unnecessary to repeat that analysis here. It suffices to say that section 47 casts upon the Board the unenviable task of determining whether an individual's views are "religious" and whether they are the cause of his objection to the union. The Legislature might have framed the exemption more broadly — referring perhaps to "conscientious objection" or "sincerely held personal belief' — but the words which it used are "religious conviction or belief'. And, as the Board indicated in Butler, not all sincerely held personal beliefs are "religious", and there will often be real difficulty in distinguishing "religious beliefs, "personal convictions", "matters of conscience", "social values", "standards of ethical conduct", etc., all of which may be intertwined in particular cases. (See also: Donald v. Hamilton Board of Education, (1945) 1945 CanLII 117 (ON CA), 3 D.L.R. 424; Adelaide Company of Jehova's Witnesses Inc. v. The Commonwealth, (1943) 67 C.L.R. 122 at pages 123—124; The Civil Service Association of Ontario (Inc.) v. Anderson, (1976) 1975 CanLII 757 (ON HCJ), 9 O.R. (2d) 341; and Trenton Construction Workers Association, Local 52 v. Tange Company Limited, (1963) 63 CLLC ¶15,459.) Moreover, even if someone holds beliefs which are unquestionably "religious" (clearly involving or stemming from some conception of God or the Divine), it does not follow that his views on secular subjects — politics, economics, collective bargaining — are religious beliefs, or spring from religious beliefs. The Board's task under section 47 is fraught with difficult and delicate problems of definition, characterization and causation.

13. It has long been held by this Board that to qualify for exemption an applicant need not be a member of a particular religious sect which espouses as part of its doctrine opposition to trade unions. The Board is concerned not with religious orthodoxy, but rather with the personal religious beliefs of the applicant. Accordingly, the fact that Judaism espouses no prohibition against unions or strikes is not fatal to the applicant's case. However, she still must satisfy the Board that her opposition is based upon religious conviction or belief.

14. In many situations a person of strong beliefs may find difficulty in tracing the source of those beliefs. That is understandable. If one gives any weight to the theory that a person is the product of his upbringing and environment, then clearly a religious person, raised in a religious environment, will tend to attribute the existence of a great many beliefs about the way the World ought to be to his religious convictions or beliefs. But that does not mean that all of his beliefs on social, economic, or political questions are "religious", nor do we suggest that such person is in any way trying to mislead the Board when they are so characterized. It is only that the individual may have lost a sense of objectivity when scrutinizing his beliefs and (like the Board) have difficulty establishing a clear connection between opinions on social, political, or economic questions (here collective bargaining), and religious principles. Under the Act, however, an applicant must not only be able to convince himself that religious beliefs are the cause of his objection to paying dues, he must also be able to convince the Board of the same thing.

15. In the case at hand, there is no doubt that the applicant has a sincere concern about the consequences of some of the activity in which her union has engaged, and, upon reflection, has decided that those consequences are undesirable in the special circumstances of a Jewish community school. No doubt those views are shared by other teachers and supporters of the School, and, indeed, are not unlike those expressed by many citizens in small communities faced by the potential disruption of a teachers' strike. However, on the basis of the evidence before us, we cannot find that the applicant's opposition to the trade union is traceable to, or because of, her religious convictions or beliefs.

16. The application is therefore dismissed.