[1984] OLRB Rep. September 1276
1015-84-M Dudley S. Burke, Applicant, v. Retail, Wholesale and Department Store Union Local 414, chartered by the Retail Wholesale and Department Store Union AFL;CIO;CLC;, Respondent Trade Union, v. Vanfax Corporation, LOF Glass of Canada Ltd., Respondent Employer
BEFORE: Rory F. Egan, Vice-Chairman, and Board Members J. Wilson and H. Kobryn.
APPEARANCES: Dudley Burke on his own behalf Hugh Buchanan and Frank Richards for the respondent trade union; Norman A. Keith and S. Locke for the respondent employer.
DECISION OF RORY F. EGAN, VICE-CHAIRMAN, AND BOARD MEMBER J. WILSON;
September 25, 1984
This is an application under section 47 of the Labour Relations Act for exemption on the grounds of religious conviction or belief from the union security provisions in a collective agreement between the respondent trade union (hereinafter "the union") and the respondent company (hereinafter "the company").
The collective agreement is a first agreement running from February 1984 to February 1986. The application is therefore timely.
The applicant set forth the basis for his objections in the application in the following terms:
I do not condemn trade unions, neither do I discriminate against anyone who seeks protection from such organization.
I totally believe in the rights of individuals, and I am not against collective bargaining.
I believe that the only one I can put confidence and trust in is God. He is the only one who is capable of delivering from any injustice, therefore to do otherwise is to give up that trust.
So because of my religious beliefs, I cannot join myself to any organization who might ask me to do some things contrary to my beliefs, such as strike, with-holding service, ext. [sic].
I also cannot support financially such an organization. I believe that my strength and ability to work comes from God, therefore all that I possess is His, including my money. It is entrusted to me to be used wisely and to His glory, of which I will have to give an account.
I do not believe that the money will be used by the union in a way that will be pleasing to God.
I believe that this money could be used to benefit those who are in need of humanitarian help.
It is very unsafe for a Christian to go against his or her conscience.
The applicant gave evidence in support of his application. He had been employed by the company from 1971 to 1977 at which time he was laid off. There was no union at the company during this period.
In 1977 the applicant went to work for the Butler Company in Kitchener. There was a union at the Butler Company when the applicant was hired there. The applicant remained at Butler's for 4 years, until 1981, and throughout that period he paid union dues. He was laid off by Butler's in 1981 and applied for employment at the company where, as already stated, he was taken on January 6, 1982.
The applicant stated that had the union been bargaining agent at Vanfax at the time he applied to be hired the second time, he would not have gone to work there because of his religious beliefs and convictions.
The applicant explained that when he went to Butler's, his religious beliefs and convictions, instilled in him by a religious family, had been allowed by him to lapse. He said that after being at Butler's for some time, he became more interested in his religious life. He inquired of the union steward at Butler's about what steps he could take to get out of the union. Upon being told that because a collective agreement with a union security clause was in existence when the applicant had joined Butler's, there was nothing he could do, he accepted the advice of the union and made no further inquiries. He said that he tried to get work elsewhere but continued to work under the union security clause and pay his dues until he was laid off in 1981.
The applicant reaffirmed the position he had set out in his application. He also testified that his religious convictions and beliefs had intensified in the latter days of employment at Butler's.
He testified that his convictions are based on the Bible and the teachings of the Lord. He would like to submit money to the Lord rather than strike against his employer. He believes that the employees are subject to God. If the employer is unjust, it is for the applicant to look to God alone for justice.
He is an elder in his Seventh Day Adventist Church and endorses the position taken by that church that a church member is following the teaching of the church when, because of his religious convictions, he refuses to join or financially support labour unions.
As was said by the Board in the Sheraton Ltd. — Sheraton-Connaught Hotel case, [1972] OLRB Rep. Mar. 249:
... no matter how ill founded or incomprehensible an applicant's view may appear to this Board, we are quick to point out that we are not to sit in judgment on that religious conviction or belief but what we are concerned with is, does the applicant sincerely have a religious conviction or belief or is the applicant merely attempting to avoid its obligations to the trade union by fabricating a religious conviction or belief.
We would add that we are primarily concerned with the personal convictions of the applicant and not with doctrines of the religious group or church with which he claims affiliation.
In assessing the applicant's evidence in the present case, the Board had, in considering the matter of his sincerity, been particularly concerned with the apparent conflict between his compliance with the terms of the union security clause for four years while working at Butler's and his present objections.
We have, however, had the opportunity to see the applicant and hear his explanation with respect to the re-awakening of religious convictions during his employment at Butler's, together with his testimony concerning his approach to a union steward in order to find out how he could avoid the payment of dues. We are now of the view that the applicant's explanation is credible and acceptable.
The Board finds the applicant to have been a credible witness in all of his testimony and is satisfied that his beliefs and convictions are sincerely held and constitute the true root of his objections to joining the union and paying union dues. Those beliefs, which the applicant finds are rooted in the Bible, are properly called religious beliefs.
The Board therefore orders and directs that the provisions of the collective agreement between the respondent employer and the respondent union which are of the type mentioned in section 46(1 )(a) of the Act do not apply to the applicant and, accordingly, the applicant is not required to join the respondent union, to be or to continue to be a member of the respondent union or to pay any dues, fees or other assessments to the respondent union provided that amounts equal to any initiation fees, dues or other assessments are paid by the applicant to, or are remitted by, the respondent employer to a charitable organization mutually agreed upon by the applicant and the respondent union.
However, if the applicant and the respondent trade union fail to agree on such charitable organization, the Board, upon the request of either the applicant or the respondent union will designate, pursuant to the provisions of section 47(1) of the Act, a charitable organization registered as such in Canada under Part I of the income Tax Act (Canada).
DECISION OF BOARD MEMBER H. KOBRYN;
I dissent.
I cannot accept the decision of the majority in this case. I have very strong suspicions about the applicant's statement in regards to his religious beliefs and the paying of his dues to this union, especially when you consider the fact that when this applicant left the employ of this present employer, he went to work in a union shop for four years. In all those four years he did not once reject the benefits he had received from the union's bargaining efforts on his behalf and on behalf of all the other employees in that plant. Also, for those four years, he paid his union dues.
After he returned to this present employer, the union organized this plant and was certified by this Board. The union had to strike this employer in order to get its first agreement. This applicant worked through the whole of the strike. Again he did not refuse to accept any of the benefits the union won for all the employees through a hard-fought strike.
My suspicions that this application is just another ploy by this applicant not to pay dues to the union are further strengthened by the strong manner in which counsel for the employer interjected himself into the proceedings. The employer's counsel, by his strong representation on behalf of the applicant, might as well have been the Counsel of Record for the applicant. This strong interjection by counsel for the employer into a quarrel which is basically between the applicant and the legally-certified union further supports my suspicions that there could be a totally different motive behind this application than the one stated. I feel that in cases such as this the Board has to be most vigilant and must scrutinize these bald statements of religious beliefs dealing with union membership and the paying of union dues.
For all of the above reasons I would have dismissed the application.