William Wesley Moreland v. United Rubber, Cork, Linoleum and Plastic Workers of America, 1983 CanLII 924

[1983] OLRB Rep. March 436

2367-81-M William Wesley Moreland, Applicant, v. United Rubber, Cork, Linoleum and Plastic Workers of America, Respondent Trade Union, v. Precision Rubber Products (Canada) Limited, Respondent Employer

BEFORE: D. E. Franks, Vice-Chairman, and Board Members J. A. Ronson and S. Cooke.

DECISION OF THE BOARD; March 7, 1983

1. By a decision dated May 31, 1982, (Reported at [1982] OLRB Rep. May 749) a majority of the Board ordered as follows:

"6.(a) Article 5.04 and 5.05 of the collective agreement between Precision Rubber Products (Canada) Ltd. and Local Union #822, United Rubber, Cork, Linoleum and Plastic Workers of America entered into on the 2nd of February, 1982 does not apply to Mr. William Wesley Moreland, and that,

(b) Mr. William Wesley Moreland is not required to pay any dues to the union provided that amounts equal to any dues or other assessments are paid by the applicant, Mr. Moreland, to a charitable organization mutually agreed upon by the applicant and the respondent trade union. However, if the applicant and the respondent trade union fail to so agree then the parties should inform the Board in writing forthwith, including such representations, if any, that each may care to make as to the charitable organization to be designated and the Board will then designate a charitable organization pursuant to section 47(1) of the Labour Relations Act."

2. Subsequently, the Board received a letter from the applicant which read as follows:

"December 1982

W. Wesley Moreland #2 1936

Winnipeg Street

Regina, Sask.

54P 1G4

Ontario (sic) Relations Board

400 University Avenue

Toronto, Ontario

M7A 1V4

Dear Sirs;

It is with some frustration and disappointment that I write this letter to you. It is in regards to the case (sic) which I presented to you earlier this year. The file number is 2367-81-M. I applied for exemption of paying dues as well as belonging (sic) to the 'United Rubber, Cork, Linoleum and Plastic Workers of America', which is the present union at Precision Rubber in Orillia. Because of the time at which I applied, as well as not knowing the length of time taken for the Boards proceedings. I made no mention of retroactive granting of exemption for the paying of my dues to the union. At the time (sic) in which I first applied, the dues were not being deducted from (sic) my earnings and therefore presumed all was well. After the hearing with the board (sic) and the decision not coming, until, I believe at the earliest eight weeks after the hearing, I discovered that the Union would not have to return the monies being taken from my pay, which by this time was being deducted. I felt that this information must have been incorrect so I called your offices, although I was not permitted to speak with one of the men from the hearing. The information was confirmed, that once the dues were deducted and given to the union, the Board had not power to see that these monies would be includes (sic) as monies to be given to the chosen charitable organization. The people with whom I spoke, were not (sic) females. I presumed one referred me to the other after some discussion. I asked her how one might change this situation and she said that this was under provincial laws and changes would have to be brought about by legislation. I therefore notified both the M.P.P. for Simcoe East, as well as the Honourable Minister of Labour, expressing my concerns about the situation. I received letters from both, I shall (sic) refer (sic) especially to the letter from Mr. Ramsay. It seems that I should have firstly requested this at the hearing, but being as my request was made before the mandatory deductions, I saw no present need. I believed that if the Board granted exemption it would be effective from the time I had first written to the Board for the exemption. I am no longer residing in Ontario and am no longer employed by Precision Rubber but I do believe that I was unfairly dealt with as things now stand. I have a receipt (sic) from the hospital fund for $11.10 and a $44.40 receipt (sic) from the Union at Precision Rubber. I would prefer to have another receipt (sic) from the hospital for $44.40 in exchange for the one I have from the union. I believe that I represented my position to you to the best of my abilities, given the information I had in regards to the hearing. I presently have two concerns, one being whether or not you have the power to have the monies paid to the Union instead of given to the hospital fund which was agreed upon. The second concern is, why there is not a provision for an individual who is applying for exemption to have his monies set aside at the time in which he first applied rather than permitting funds to continue to fill the union coffers when the decisions have been made. In respect to that, how would one go about having such a provision made? Is this procedure sought through provincial parliament or is it not?

I enclose (sic) copies of letters sent to and received (sic) from Mr. Ramsay. I would like to have some clear and definite information on these matters.

Sincerely yours with respect, (signature)

W. Wesley Moreland"

Enclosed with that letter was one letter which was dated September 14, 1982 to the Honourable Russell Ramsay, Minister of Labour. However, it is not necessary to reproduce the text of that letter in this decision.

3. We will deal with the request in this letter by Mr. Moreland as a request for reconsideration, in effect asking the Board to vary or amend its decision of May 31, 1982 in this matter. Simply put, we interpret it as a request for the Board to amend the order of May 31, 1982 cited above to make it a specific date from the date of the making of the present application, which was February 16, 1982.

4. Copies of the above correspondence were sent to both the respondent trade union and the respondent employer. They have responded in writing as follows:

"I would like to acknowledge receipt of your letter of January 11, 1983.

Please be advised that it is the position of the Union that it has fulfilled all of its legal obligations and has met all of the require­ments as laid out by the Ontario Labour Relations Board in its various decisions relating to the above matter. Accordingly, it is our position that there is no reason in law for the status quo to be disturbed.

Yours very truly,

MACLEAN, CHERCOVER

Per: (signature)

Stephen Krashinsky"

"This is in response to Mr. Moreland's letter of December 1982.

There is nothing in the Board's decision of August 12th, 1982, which restricts the retroactive application of that decision.

It would appear to be consistent with the spirit of that decision and the Union's subsequent agreement on a suitable charity to have the modest some (sic) in question paid to the charity without further litigation.

Yours very truly, (signature)

William G. Phelps."

5. Section 47(1) of the Act reads as follows:

"Where the Board is satisfied that an employee because of his

religious conviction or belief,

(a) objects to joining a trade union; or

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

A careful reading of subsection 1 of section 47 does not indicate any limits on the scope of the order which the Board may make in terms of the point in time of its commencement. It would seem, however, that for instance, in a situation where an employee had refused to join a trade union for religious beliefs, and where a union sought the employee's dismissal pursuant to a union security provision of the type outlined under section 46(1)(a) that the Board could under section 47 of the Act, make an order that the clause does not apply and that this order would effectively protect the employee from the dismissal sought by the trade union. It would seem in this sense then that the Board's power would extend to making orders which speak to a time prior than the date on which the Board's order issues.

6. In the present case both the respondent employer and the respondent trade union were notified of this application once it was made. It is clear, therefore, that from the time they received notice of the application, they were in the position of being confronted with the kind of order which the Board ultimately made in its decision of May 31, 1982. That is, from the time of the making of this application, both the employer and the trade union knew the extent of any possible liability which may have occurred if the order were dated from the date of the making of the application. It would seem, therefore, that the request made by the applicant is not so much a matter of retroactive application of the decision of May 31, 1982, as characterized in the letter from the respondent employer, but of simply clarifying the order of that date, that it applied from the date of the making of the application. Further, such an amendment cannot be said to either surprise or prejudice either the respondent employer or the respondent trade union since they knew from the date of the making of the application that Mr. Moreland was seeking an order of the kind ultimately issued in the Board's decision of May 31, 1982. Accordingly, we are prepared to amend the decision of May 31, 1982 to make it clear that from February 16, 1982 onward:

"(a) Article 5.04 and 5.05 of the collective agreement between Precision Rubber Products (Canada) Ltd. and Local Union #822, United Rubber, Cork, Linoleum and Plastic Workers of America entered into on the 2nd of February, 1982 does not apply to Mr. William Wesley Moreland, and that,

(b) Mr. William Wesley Moreland is not required to pay any dues to the union provided that amounts equal to any dues or other assessments are paid by the applicant, Mr. Moreland, to a charitable organization mutually agreed upon by the applicant and the re­spondent trade union. However, if the applicant and the respondent trade union fail to so agree then the parties should inform the Board in writing forthwith, including such representations, if any, that each may care to make as to the charitable organization to be designated and the Board will then designate a charitable organiza­tion pursuant to section 47(1) of the Labour Relations Act."

7. It appears from the correspondence by Mr. Moreland that for some period after the making of the application and prior to the Board's order of May 31, 1982 the union did receive some $44.40 in membership dues on behalf of Mr. Moreland. We further order that the respondent trade union, in order to comply with the Board's order of May 31, 1982, as amended by paragraph 6 above, pay that amount on Mr. Moreland's behalf to Soldiers Memorial Hospital Building Fund that being the fund agreed to by the parties.