Mary Geyer and Barbara Jannis Hall v. Ontario Public Services Employees Union, 1985 CanLII 1013

Mary Geyer and Barbara Jannis Hall v. Ontario Public Services Employees Union and Niagara South Board of Education

[1985] OLRB Rep. July 1057

2931-84-M; 2932-84-M Mary Geyer and Barbara Jannis Hall, Applicants, Ontario Public Services Employees Union, Respondent Trade Union, v. Niagara South Board of Education, Respondent Employer

BEFORE: Paula Knopf, Vice-Chairman, and Board Members F. W. Murray and P. Grasso.

APPEARANCES: Gerald Vandezande for the applicants; Linda Rothstein, Susan Bazilli and Frances Lankin for the respondent trade union; no one appeared for the respondent employer.

DECISION OF PAULA KNOPF, VICE-CHAIRMAN, AND BOARD MEMBER F. W. MURRAY; July 17, 1985

1The name of the respondent union is amended to read: "Ontario Public Service Employees Union".

2This case involves two applications under section 47 of the Labour Relations Act for an exemption from paying any dues, fees or assessments to the respondent union because of the applicants' religious convictions and beliefs. At the outset of the proceedings, the parties agreed to hold the hearings of both applications together and to apply some of the evidence to both applications. This expedited the proceedings considerably. However, it was clear to all the parties that the two applications would be assessed and adjudicated separately. The evidence of the respondent union applies to both applications.

3The respondent union and the Niagara South Board of Education (the Board of Education) entered into their first collective agreement effective January 1, 1984. Article 3.01 of that collective agreement provides:

ARTICLE 3 UNION SECURITY

3.01 The Employer shall deduct from every employee any monthly dues or assessments levied in accordance with the constitution of the Union and/or by-laws. The amount of dues paid by each employee in the tax year shall be included on that employee's T4 slip.

Membership in the union is not a condition of employment. Therefore, these cases deal only with the obligation under the collective agreement to pay dues and assessments to the union.

Application of Mary Geyer

4Mrs. Geyer is a half-time secretary with the Board of Education. She has been in their employ since 1958. She has never been a member of a trade union or paid dues to a trade union until required to do so by Article 3.01.

5The evidence is clear that Mrs. Geyer is an active and diligent member of the Faith Pentacostal Tabernacle Church. She is "a born again Christian" who has dedicated herself to the service of her church and to religion, both financially and through practice.

6As soon as Mrs. Geyer became aware that dues were being deducted for the union she asked that her dues be held in trust until she could resolve the issue by making this application to the Labour Relations Board. When the Board of Education indicated that it was not able to fulfil her request she wrote the following letter to the union's president:

This past January 9, 1985, I received notification from the Niagara South Board of Education a memorandum to all Half-Time Secretaries — Continuing Education informing me that I am now a member of Local 256 with O.P.S.E.U. and that dues will be deducted from my pay in accordance with the terms of the Collective Agreement.

This comes as quite a surprise to me as I have not had any previous information of such an organization, have not had any notice to attend any meetings and express my personal opinion or choice, nor have I signed any union card. I feel as if I have been 'railroaded" into an organization that I do not wish to join or support financially because of its affiliation with the Ontario Federation of Labour and The Canadian Labour Congress especially in the 'abortion issue' which is supported by these organizations and one which I am totally against. I will never support an abortion issue!

As a Fundamental Christian Believer, I cannot, knowingly, support the principles and practices of this Union. Such practices contradict my christian beliefs which have first priority in my life. The bible teaches me that in all that I do, I must honour God first and obey His words.

Phillipians 4:8

Finally, brethren, whatsoever things are true, whatsoever things are honest, whatsoever things are just, whatsoever things are pure, whatsoever things are lovely, whatsoever things are of good report, if there be any virtue, and if there be any praise, think (act) on these things.

Does O.P.S.E.U. fit the above? I believe not!

My immediate obligation is to my employer.

Colossians 3:22

Servants, obey in all things your masters according to the flesh; not with eye service, as menpleasers, but in singleness of heart, fearing God.

I have worked for the Board of Education since 1958 — ten years full time and thereafter, part-time. The Board has dealt with me fairly and I am and have been very satisfied with wages and benefits. What more can O.P.S.E.U. do? Further, O.P.S.E.U. does not provide my employment — The Niagara South Board of Education does. Therefore, if union dues are to be deducted, I request that they be sent to a charitable organization.

It is to be noted that her application before this Board is not based on her perception of events which took place prior to the certification and regarding the union's conduct through organizing or bargaining.

7Mrs. Geyer explained to the Board that her objection to the union was based on two fundamental concepts. First, she is opposed to abortion because of her understanding of the teachings in the Bible. She believes that because the respondent union is affiliated with the Ontario Federation of Labour (OFL) and the latter organization has passed a resolution in favour of abortion, she cannot let herself be associated with or support the union. She relied upon the OFL's resolution which was passed in 1984 as a basis of this objection. This resolution reads as follows:

WHEREAS in January 1984, only one-quarter of Canadian public General Hospitals had therapeutic abortion committees, and of those 18% performed no abortions and 18.2% performed between 1 and 20 abortions each; and

WHEREAS this indicates that Canadian women in need of abortions have inadequate, and in some cases, no access to proper abortion facilities; and

WHEREAS it is already OFL policy to support a woman's right to choose, including repeal of the abortion law and legalization of free-standing clinics; and

WHEREAS Dr. Morgantaler and his colleagues have been acquitted by a jury for the fourth time;

THEREFORE BE IT RESOLVED that the Ontario Federation of Labour

1. Urge Attorney-General Roy McMurtry not to appeal the verdict and cease any further prosecution of the doctors;

2. Urge Justice Minister John Crosbie to immediately move to remove abortion from the criminal code;

3. Support the right of the Morgantaler clinic to continue to function without harassment;

4. Urge Health Minister Keith Norton to approve and fund public free-standing clinics providing medically insured abortions;

BE IT FURTHER RESOLVED that the OFL demand of the Ontario government that every public health unit be obliged to set up family planning clinics providing a wide range of gynecological services and counselling. Services must be made available to all, regardless of age, without any requirement for parental consent. In rural areas mobile clinics must be provided on a regular basis.

8Secondly, Mrs. Geyer believes that the teachings of her church are in conflict with the practices and principles of this union because she feels she cannot honour her employer as required by the Bible and also participate in or condone strike action.

9Mrs. Geyer also feels that compulsory dues violate her Christian rights by forcing her to support something that is contrary to her understanding of the scriptures. The OPSEU Constitution is also a cause for her objection because she does not find God mentioned in the initiation oath of the organization. She would insist that the constitution and the oath acknowledge and/or be based upon the supremacy of God.

10On cross-examination, Mrs. Geyer admitted that she has no difficulty with the concept of working with others who do not share her beliefs and she has no quarrel with members of OPSEU expressing their differing views on abortion or their right to strike. However, even if she could be satisfied that no money was spent by OPSEU on the abortion issue, she says she would still object to the payment of dues because she believes that this union "does not give recognition to God."

Application of Barbara Hall

11Mrs. Hall has been an administrative secretary of the School of Continuing Education for the Board of Education since 1977. She is a member of the Calvary Gospel Church and attends regularly. Religion is a very important aspect of her life.

12Prior to the union gaining certification, there was a Secretarial and Clerical Association at the Board of Education. She was a member of this organization, paying dues to it in accordance with their contract with the Board of Education beginning in 1977. She participated in the Association to the point that she accepted a position of area representative in 1980-81. However, she resigned after a short period because of her discontent with others' conduct at the meetings. She said she had no problems with belonging to this Association because she considered it independent, without affiliation and as "just a group of girls."

13In May of 1984, she became a member of OPSEU at one of its organizational meetings. She later even witnessed the signature of two other employees to facilitate their joining. However, Mrs. Hall says she experienced a change of heart with regard to the union. She wrote a letter of resignation to the union president on December 7, 1984, which reads as follows:

After thoughtful and much consideration and after reading the Constitution of OPSEU I have come to the conclusion this Union is not the kind of organization I can join and financially support in all good conscience.

The reasons for this are:

Because of my Fundamental Christian Belief I cannot accept the principles and practices of this Union as they are in conflict with my christian beliefs which have been taught to me since I was a child.

The Lord Jesus Christ is very real to me and my goal is to do as Jesus Christ would have me do. I cannot see Jesus Christ ever being a member of this Union.

From the Bible we are taught to be faithful to and have a respect for our employer. Here are a few scriptures which bear this out:

Ephesians: Chapter 6, verse 5

"Servants, be obedient to them that are your masters according to the flesh, with fear and trembling, in singleness of your heart, as unto Christ."

Colossians: Chapter 3, verse 22

"Servants, obey in all things your master according to the flesh; not with eyeservice, as menpleasers; but in singleness of heart, fearing God."

Timothy: Chapter 6, verse 1

"Let as many servants as are under the yoke count their own masters worthy of all honour, that the name of God and his doctrine be not blasphemed."

Titus: Chapter 2, verse 9

"Exhort servants to be obedient unto their own masters, and to please them well in all things; not answering again."

1 Peter: Chapter 2, verse 18

"Servants, be subject to your masters with all fear; not only to the good and gentle, but also to the forward."

2. I can't financially support an organization which supports the following: Ontario Federation of Labour, The Canadian Labour Congress and the New Democratic Party. The reason for that is the abortion issue. Again, my Christian Belief teaches the value and sanctity of all life.

3. Strike - again, because of my Christian Belief I could not support striking because of how I am suppose [sic] to relate to my employer in the eyes of God. (See scripture text cited under #1.)

4. Union Dues - I am against forcing people to pay union dues which are then used for things which are contrary to my Christian Belief.

5. After attending the general meeting of this Local on November 26, 1984 and in viewing the conduct of the 2 representatives present I would not want to be associated with conduct and principles of this manner, (i.e. the dishonesty regarding the honorariums - per diem, election of executive, use of funds, failure to give consistent account of funds.)

For the above reasons I officially request that the union card I signed be cancelled and my union dues be sent to a charitable organization - such as the Salvation Army.

[It is to be noted that the allegations in paragraph 5 of the letter above were not relied upon by Mrs. Hall in this application and the parties agreed that this was not an issue that was relevant to these proceedings. Hence, the union was not put in a position that it was required to respond to the allegations, although it expressed its ability and willingness to do so, if necessary.]

14There were several factors which Mrs. Hall says prompted her to write this letter of resignation. She had received a copy of the OPSEU Constitution in September and noticed that Article 4.1 .(e) lists "the defence of the right to strike" as an aim and purpose of the union. Mrs. Hall feels that holding a strike is against Christian teachings. She said she could not conceive of a situation when it would be right to strike or support a strike.

15Another factor that prompted Mrs. Hall to consider resigning is that she had been advised by a family friend that OPSEU had taken a position on the abortion issue. Mrs. Hall wanted to determine what the actual situation was. She called her Local Vice-President, Dorothy McCaffrey, and was told that OPSEU was affiliated to the OFL CLC and the NDP party. (The evidence establishes clearly that there is in fact no affiliation with the NDP.) Mrs. Hall then solicited the OFL's position on abortion and received Resolution S2 which is cited above. Mrs. Hall objects to the expenditure of any money, directly or indirectly, on any pro-abortion or pro-choice position. She feels that secretarial time, stamps or phone calls relating to the abortion questions are all expenditures in support of a position that are contrary to her religious beliefs. She said that she would not be satisfied by testimony that no funds were being spent directly or indirectly by the union in favour of abortion but that she would instead demand a formal position paper issued by OPSEU to convince her that no such expenditures actually existed.

16Mrs. Hall also explained that there were several factors that caused her a great deal of concern about the administration of the union. This crystallized at a meeting in November of 1984. However, she had been struggling with the issue of her union membership for a long time before that. She had been reluctant to take action or resolve the matter sooner because she met with family hostility towards her position against the union and/or lack of support with regard to her opposition to the union. Also, she was reluctant to go against her fellow employees.

17However, on December 7, 1984, Mrs. Hall wrote the following letter to her employer:

I respectfully request to have included in the above mentioned contract a clause to allow me and others to pay the equivalent of Union dues to a recognized charity. My reason for being unable to support the Union in anyway is because of my Fundamental Christian Belief. For your information, I have enclosed a sample of such a clause.

Thank you for your attention in this matter which greatly concerns me.

I look forward to hearing from you.

The clause referred to in the above letter reads as follows:

An employee who satisfies the employer to the extent that he declares in an affidavit that he is a member of a religious organization registered pursuant to the income tax act who's doctrine prevents him as a matter of conscience from making financial contribution to an employee organization that he will make contribution to a charitable organization equal to dues, shall not be subject to this article provided that the affidavit submitted by the employee show [sic] the religious number of the organization and is countersigned by an official representative of the religious organization involved.

By early January, Mrs. Hall had received a copy of the OFL resolution cited above. She then wrote to the Board as follows:

I understand that a Collective Agreement has been signed with the Ontario Public Service Employees Union and you will be collecting dues.

I hereby respectfully request that you place any monies deducted from my salary intended for the Ontario Public Service Employees Union be held in trust pending the Ontario Labour Relation Board's approval of my application for exemption from paying Ontario Public Service Employees Union dues.

Thank you for your attention in this matter.

18Like Mrs. Geyer, Mrs. Hall expressed no difficulty in working with other employees who had different views. However, Mrs. Hall said she could not support a union that was associated with the position taken by the OFL on abortion. She opposed the concept that any money could be spent by the union, directly or indirectly, in the support of the position taken on abortion.

19After writing OPSEU and the OFL about her concerns and hearing from the Niagara Board that it could not voluntarily withhold her union dues (because this would amount to a violation of the collective agreement), Mrs. Hall launched these proceedings before this Board.

The Evidence of the Union

20The union called Maxine Jones to testify. She has been a member of OPSEU's Local Executive since 1971 and on the Provincial Executive since 1976. The Executive Board passes and administers all policies of the union between conventions and decides upon and monitors expenditures of funds. She was also the chairperson of the Resolutions Committee of the union in 1983 and 1984 conventions. She gave the Board the history of a resolution considered by the OPSEU Convention in 1983 on abortion (Resolution 41). The Resolution Committee's function is to, inter alia decide what resolutions from locals should be put to the Convention floor and make recommendation for or against their passage. The Committee twice decided not to put a proposed abortion resolution to the Convention in 1983. However, at the Convention, an individual member was successful in persuading the Convention to vote to have the Resolutions Committee bring the resolution on abortion forward to the Convention as a whole. While this was done in accordance with the vote, the Resolutions Committee took the unusual step of bringing the resolution forward without a recommendation from the Resolutions Committee. When the resolution was put on the floor, a debate was held. Ms. Jones describes the debate as "extremely rational and balanced" both for and against the proposal. Ultimately, Resolution 41 was passed. It reads:

Whereas it should be the fundamental right of each woman to choose when and if she will bear children; and

Whereas present Criminal Code restrictions affect the legality and availability of abortions, and highly organized campaigns are underway to further limit the right to choose; and

Whereas there is not a safe and effective method of birth control for each woman;

Be it resolved that OPSEU endorse a woman's freedom of choice by supporting the right of women to full access to abortion;

Be it further resolved that OPSEU demand the removal of abortion from the Criminal Code;

Be it further resolved that OPSEU demand that free-standing medical clinics providing abortions fully covered by OHIP be established;

Be it further resolved that the Equal Opportunities Co-ordinator prepare a series of three columns for OPSEU News which will explain the problems women face in obtaining a safe, legal abortion; and the reasons why it is important for the trade union movement to take a public stand on this issue.

OPSEU has passed no other motions on the abortion issue.

21At the OFL Convention in 1983, the OPSEU took no formal position on the OFL proposal and resolution on abortion cited above. Each delegate voted according to his or her own conscience. The same held true at the 1984 OFL Convention, except the caucus did not even discuss the issue at that time.

22Ms. Jones testified that to her knowledge no monies have been spent in support of Resolution 41. This was corroborated by Frances Lankin who was the Equal Opportunities Co-ordinator in the fall of 1983 until April of 1984. She explained that the articles called for in Resolution 41 have never been prepared nor are there any plans to do them. Indeed, a decision has been made not to prepare the articles because this is no longer a current issue of concern for the membership.

23It should also be mentioned that on cross-examination, Ms. Jones admitted that OPSEU pays a per capita fee to the OFL and the CLC. Also, the results of the Convention, including the resolution adopted, are distributed to the Local's membership, together with the policy manual updates. She concedes that this involves some expense, but that it is not specifically referrable to the stand on abortion.

24Mrs. Jones also explains that the union's constitution would not permit it to take any action against a member who did not support strike action.

The Arguments

25On behalf of the applicants, the Board was urged to examine the applicants' personal religious beliefs and not be concerned with their rationality or bases in church doctrine. Instead, the applicants' subjective belief and sincerity is the fact the Board was asked to focus upon. The Board was referred to a number of cases, in particular Anderson and the Civil Service, (1976) 1975 CanLII 757 (ON HCJ), 9 O.R., (2d) 341 at 344 (S.C.O.) where the Court upheld the claim for religious exemption which was raised because of the applicant's objection to the use of this "strike weapon." It was argued that both applicants had sincerely held religious beliefs and that these formed the basis of their objection to paying union dues. Mrs. Geyer's case centred on her unwillingness to identify herself with an organization that did not associate itself with God and/or that took a stand on abortion other than her own. Mrs. Hall's case was based on her inability to support an organization that is committed to upholding the right to strike and which is associated with a position in support of abortion or "the right to choose."

26The union submitted that these applications must be examined carefully in the context that the exemption claimed only relates to the payment of dues. It is to be remembered that membership is not compulsory. Therefore, counsel for the union submitted that the evidence should be scrutinized to see if the funds are being spent in an objectionable way, contrary to the religious beliefs of the applicants. It was said that there had to be an irreconcilable conflict between the payment of dues and the religious beliefs that could only be remedied by granting the exemption. In these cases, the issue was whether it could be objectively said that the applicant's religious views were the cause of their objection to the payment of dues. With respect to Mrs. Geyer, the union's position was that since Mrs. Geyer admitted in cross-examination that she may not have a problem with dues if it could be shown that no money was spent on abortion, she did not have the necessary "irreconcilable conflict" with regard to the payment of dues. Since Mrs. Geyer supported the right of free expression and since all OPSEU has in fact done is to debate the abortion issue, it was said that there should be no conflict in her payment of dues and her personal religious beliefs. The same was said to hold for Mrs. Hall on the abortion issue. With regard to Mrs. Hall's objection to the right to strike, the union argued that because she joined the union knowing it would defend the right to strike, this should indicate that the strike issue is not the real cause of her objection. Instead, it should be seen as her objection to the management of the union as expressed in her letter. The union referred the Board to a number of cases and in particular Mr. Tremblay's application in Georgian College of Applied Arts And Technology, [1984] OLRB Rep. Feb. 247.

The Decision

27The Board's consideration of applications for religious exemption has been well summarized in the case involving Douglas Buttler in The Board of Governors of York University, [1981] OLRB Rep. Sept. 1319. In that decision, the Board explained as follows at page 1324 and following:

11. The Board in Helena Wybenga, [1976] OLRB Rep. Aug. 422 set out the questions which the Board must ask itself about the applicant's beliefs, when considering an application of this kind:

(a) are they sincerely held;

(b) are they religious; and

(c) are they the cause of the objection to paying union dues?

Of these questions, it is often (b) which poses the greatest difficulty. As the Board commented in Anthony J. Vis, [1972] OLRB Rep. March 249, at paragraph 9:

9. Second, there is the question of defining a religious conviction or belief. It has been submitted that before the Board can make a determination as to whether an employee has a "religious conviction or belief" it must define "religious". We doubt that we can accomplish this rather Herculean task in a manner satisfactory to all. However, there are many cases that do not require an exhaustive definition of "religious" to arrive at a determination. It may be that there are peripheral situations where an applicant's "conviction or belief' must be tested against a definition of "religious" but suffice it to say the applicant in this case does not stand at the periphery of what may be considered to be a "religious conviction or belief". We are satisfied that the applicant would fall within any attempted exhaustive definition of religion that we might make.

10. That the term "religion" can have a meaning which extends beyond the established views of a particular sect is now beyond doubt, and has been reflected in numerous decisions of the Courts as well as this Board. See, for example, The Civil Service Association of Ontario (Inc.) v. Anderson (1976), 1975 CanLII 757 (ON HCJ), 9 O.R. (2d) 341; Funk v. Manitoba Labour Relations Board (1976), 76 CLLC 14,006; Klaas Stel v. The North York Civic Employees' Union, Local 94, Canadian Union of Public Employees, [1971] OLRB Rep. July 363; Vis v. Sheraton-Connaught, [1972] OLRB Rep. March 249; and Centennial College, [1979] OLRB Rep. March 174. On the other hand, it is obviously easier for an applicant to demonstrate, and for the Board to find, a particular belief to be "religious" when it forms a part of the dogma of a group or sect both recognized in society and considered to be religious in the traditional sense. It is this distinction which underlay, for example, the vigorous dissent expressed in the Centennial College case, supra, at paragraph 4. This, however, is largely a question of credibility. As the Board noted in Klaas Stel, supra, at paragraph 35:

It was argued, however, that Stel's evidence or affirmation of belief in the witness box must be tested in terms of the consistency and pervasiveness of the belief, particularly where it was not founded on a creed or tenet of faith of a particular church. As we indicated above, we [are] not persuaded that these are absolute pre­conditions to the establishment of the religious belief, but they may be useful in some cases where there is a credibility issue.

14. Of greater concern to the Board, however, is the applicant's submission that any deeply-held personal belief is, therefore, essentially "religious" within the meaning of section 39. The Board does not find that its cases have ever extended that far. In Hogertep v. UAW v. General Motors, [1972] OLRB Rep. Feb. 132, on which the applicant relies, the Board stated:

15. However that may be, it is not the religious convictions or belief of a certain religious sect that must be determined under section 39 of the Act. The religious conviction or belief on which the objection must be based is the personal conviction or belief of the applicant and accordingly is a subjective matter.

(emphasis added)

The Board there, however, was simply reaffirming the aforementioned principle that "religion" may be personal to an individual, and need not be tied to an established religious sect. The Board did not say that the belief of the individual need not be "religious" at all. Similarly, in Stel, the first case to be decided by the Board under this section, and relied upon as well by the applicant, the Board referred to a number of dictionary definitions of the word "religion", including:

"related or devoted to the Divine or that which is held to be of ultimate importance" (paragraph 22),

and:

"a personal set or institutionalized system of religious attitudes, beliefs and practices" (paragraph 26).

(emphasis from the original)

Once again the Board was simply drawing the distinction between an institutionalized versus a personalized religion, and concluded, at paragraph 26:

In light of all the above considerations, we are unable to conclude that an applicant's religious conviction or belief must necessarily be founded on a tenet or creed of a particular religious faith.

There is, again, no suggestion that the Board need not still determine whether the belief, be it personal or otherwise, is in essence "religious". Indeed, both of the definitions referred to make reference to "the Divine", or to a system of "religious attitudes, beliefs and practices", and the words "that which is held to be of ultimate importance" must, in our view, be read in their context. So as not to misinterpret the decision in Stel, it is important to note that the Board in that case had no difficulty relating Mr. Stel's beliefs to the Divine, and any of the Board's words obiter must be read in the light of this conclusion. As the Board said at paragraph 31:

It seems clear that, based on this testimony on affirmation, Stel objects to joining CUPE because of his religious belief in the sense in which we have earlier defined those words. It is a state of mind that membership in CUPE is inconsistent with his duty to Jesus Christ. There can be little doubt that this relates to the Divine.

15. The Board in Stel went on to consider as well the argument that the belief of the applicant was too "secular and selective" to satisfy the meaning of the section. The Board observed:

Counsel's arguments on the secularity and selectivity of the belief are, in reality, addressed to the reasonableness of the belief. Although there may be many who would not understand Stel's belief and while there may be many who would find it unreasonable and would strongly disagree with it, it is not for the Board to substitute its view as to what constitutes a religious belief for that of the individual.

Again, however, while recognizing the individual's right to the subjectivity of his own beliefs, this comment falls short of indicating that the individual's view need not still be found to be "religious". As the Board went on to make clear in the same paragraph:

However unreasonable the belief may appear to some, the evidence impels us to the conclusion that Stel does have this belief and it is one based on his religion.

(emphasis added)

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 the "non-religious". This becomes particularly cogent if the recently-enacted section 36a, 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 man-made 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, 1975 CanLII 757 (ON HCJ), 9 OR. (2d) 341:

It is trite to say that in some circumstances, 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 of 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 appears to require more than merely a code of behaviour or system of worldly standards, standing alone. As McRuer C.J.H.C. noted in dealing with the related word, "creed", in Trenton Construction Workers Association, Local No. 52 v. Tange Company Limited, 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.

28The threefold tests established in the Wybenga case, supra, must now be applied to the situation of these applicants. The respondent has not taken the position that these applicants' views are not sincerely held and indeed, the applicants' sincerity was evident to the Board at the hearing. Therefore, the first aspect of the test has been fulfilled by both applicants. We may now turn to a consideration of the second and third aspects of the test with regard to each application.

Mary Geyer

29Her objection to the payment of dues stems first from her opposition to abortion and the OPSEU's association with the OFL's stand on abortion. Her objection is also based on her unwillingness to be associated with an organization that is not dedicated to God. It is true that her concern about abortion arose because of her understanding that OPSEU had adopted the OFL' s position on abortion. The evidence of Mrs. Jones makes it clear that OPSEU, as an organization, had not taken a formal position with regard to the OFL resolution. This make the situation similar to that in the applications of Mr. Schochet in Humber College, [1983] OLRB Rep. Sept. 1472 and the Ontario Public Service Employees Union and Forere, 1984 CanLII 1875 (ON HCJ), [1984] 46 O.R. (2d) 789 (Ont. Div. Ct.). In those cases, OPSEU's mere affiliation with an OFL resolution absent an official stand taken by OPSEU on a particular issue, was held to be too remote to be a foundation for a religious objection to membership. However, the evidence in the case before this Board is different. In this case, OPSEU had taken a formal position by adopting Resolution 41. This was unknown apparently to Mrs. Geyer. However, Mrs. Geyer would find herself in a position of paying dues to support a union which had formally adopted a position on abortion that is diametrically opposed to her own. However, she admitted that she would have no problem in this regard if she could be convinced that OPSEU had not spent any money in support of abortion or its position on abortion. The evidence of the union did not satisfy her that this was the case. Thus, she maintained the application.

30Her position should then be compared to that of Mr. Tremblay in the case of Georgian College of Applied Arts and Technology, supra. In that case, he objected to OPSEU's adoption of Resolution 41. However, he was prepared to allow his fellow union members the freedom of speech and expression on the issue. Therefore, he focused his objection to the expenditure of funds in support of the resolution or as was called for in the resolution itself. He asked only that he be given an exemption from the payment of dues or assessments for the portion of funds which would be spent in accordance with Resolution 41. The Board had sympathy with Mr. Tremblay ' s position to a certain extent. It concluded at paragraph 15:

All that the applicant's position demonstrates is that the focus of his conflict is a narrow one. But if that conflict is as irreconcilable and as fundamental to the applicant's beliefs as we find to be the case here, we find no basis for concluding that the applicant's predicament does not fall squarely within the class of cases for which the exemption has been made available.

Since the union had been able to satisfy the Board that time and funds had not been spent on the resolution, it was held that the specific application was premature. The application was then dismissed, without prejudice to Mr. Tremblay' s right to refile should "further developments warrant" or should it be able to be established that funds were indeed being spent in support of the resolution.

31Insofar as the abortion issue is concerned, the Board can see no distinction between the situation of Mr. Tremblay or the applicant. Again, the Union has been able to establish in this case that no funds have been spent in support of the position on abortion thus, in that regard the application must be considered to be premature.

32However, Mrs. Geyer's position is different from that in the Georgian College case in that this objection is also based upon her concern about supporting an organization that is not dedicated to God. Her sincere and religious beliefs tell her that she cannot support an organization that is not dedicated to God or does not align itself with God's teachings. It is true that she admits that she could join a community club or sports club, but she distinguishes this by saying it would not offend her if it did not contradict the Bible. But her belief is that the OPSEU Constitution, by supporting strikes and requiring an oath to be sworn which does not refer to God, contradicts the Bible. The Board does not sit in judgment of the reasonableness of this belief. Instead, the Board determines whether the belief falls within section 47 of the Act. There may be cases where a distinction can be drawn between an applicant's objection to joining and to supporting a union through the payment of dues. But such a distinction cannot be drawn in Mrs. Geyer's case. To Mrs. Geyer, the supporting of a union financially affiliates her with an organization that is in irreconcilable conflict with her religious beliefs because it is not dedicated to God and she believes it could call upon her to act contrary to God's teachings. These sincere and religious beliefs are the cause for her objection to supporting the Union. Therefore, she falls squarely within the intent of section 47 of the Act.

Barbara Hall

33All the above comments with regard to the question of abortion apply equally to Mrs. Hall. Thus, if the application was based solely upon the opposition to abortion, the claim would have to be considered premature. But, Mrs. Hall's other reason for not wanting to pay dues relates to the union's position of defending the right to strike in its Constitution. As stated above in the Anderson case, a religious objection based on the defence of the right to strike has been upheld.

34But in the application of Mrs. Hall, the real cause for concern as to whether the exemption ought to be granted is why it took her so long to resign from the union and seek this exemption after having been active in an association and signing up for membership in OPSEU herself. It is clear that Mrs. Hall is an intelligent woman. She knew when she joined the union that it would seek to protect the right to strike. It then took her seven months to resign. It is clear that in the meantime she was dissatisfied with the persons administering the Local and the procedures which were being adopted by the Local and OPSEU. The Board has scrutinized carefully whether or not this dissatisfaction was in fact why she no longer wishes to support the union or pay dues.

35But the Board is satisfied that the real motive for this application came from Mrs. Hall's resolution of her internal struggle that she suffered while she was trying to reconcile her idea of the scriptures with the concept of the union. This was a difficult struggle for her. It put her in opposition with her family and her friends. Over that seven-month period, she tried to decide whether her membership in the union was in contradiction with her religious beliefs. She methodically sought out information from the union and the OFL to ensure that her decision would be based on facts rather than conjecture. She ultimately determined that her view of Christianity was inconsistent with the aims of the union and with the union's stand on abortion.

36Section 47 does not demand that applicants remain of a fixed mind with regard to their religious beliefs. Applicants are entitled to change their minds or their positions as they evolve as human beings. A change in position can suggest a lack of sincerity or belief, especially when other anti-union motivations are present. But here, the sincerity of Mrs. Hall was not challenged by the union and indeed the Board was convinced of her sincerity as well. Further, in General Motors of Canada Ltd., [1972] OLRB Rep. Feb. 132, the Board held that the religious objection need not be the sole ground for objection. Here, Mrs. Hall may well have had a dual motivation in that she was also concerned with how the union was being administered. This would not entitle her to an exemption under section 47. But the Board has been convinced by Mrs. Hall's testimony that her religious objection to OPSEU's defence of the right to strike was a primary reason for her desire not to support the union.

37Again, like in the case of Mrs. Geyer, financial support of this union would put Mrs. Hall in a position of conflict by supporting an organization that is opposed to her understanding of the scriptures. The union did not deny that dues could be used to support a strike. Thus, it could not be said that her dues could be protected from the support of the union's position on strikes. While this was not specifically mentioned by Mrs. Hall herself, it is only one example of how payment of dues would put her in an irreconcilable conflict of religious beliefs. Therefore, we must conclude that Mrs. Hall's sincere religious beliefs are the reasons for her objection to the payment of union dues.

Conclusion

38For all these reasons, the applications of Mrs. Geyer and Mrs. Hall are allowed. The Board orders that Article 3.01 of the collective agreement does not apply to the applicants and that they cannot be required to pay any dues, fees, or assessments to the respondent trade union, provided that the amounts equal to such dues or other assessments are paid by the applicants or remitted by the Board of Education to a charitable organization mutually agreed upon by the individual applicants and the union. If such agreements are not reached, this Board remains seized of the matter of designating the charity in accordance with section 47(1) of the Act.

DECISION OF BOARD MEMBER P.V. GRASSO;

1I must dissent from the conclusion reached by my colleagues.

2As may be seen from the majority's review of the facts and evidence, the two applicants advance similar reasons in support of their request for an exemption from the union security clause of their collective agreement. Mrs. Hall bases her application upon her views that her union's resolution in support of liberalized abortion laws and facilities is incompatible with her religious beliefs, and that the actual or contemplated use of the strike in pursuit of collective bargaining goals is contrary to Scripture. Mrs. Geyer bases her application upon the same views, as well as her view that she cannot belong to or support a trade union that does not expressly acknowledge God in its constitution or oath.

3In my opinion, section 47 of the Act granting religious exemption from union security provisions was enacted for a very limited purpose. Union shop and agency shop clauses are in wide use in collective agreements in this Province. The primary purpose of clauses requiring employees in a unit to either join or remit dues to their union is to strengthen the union is its role as exclusive bargaining agent. The mandatory check-off of dues gives all employees in a unit a stake in the collective bargaining process. It also eliminates "free-riders" by requiring all employees who benefit from union representation to bear their fair share of the costs of representation. The Legislature has historically tolerated these clauses, and has even given agency shop clauses legislative approval by enacting s .43, which gives unions the right to an agency shop clause in a collective agreement upon request. I believe that it is a measure of the importance placed by the Legislature upon the principle of equitable distribution of collective bargaining costs that it recognizes a bona fide religious objection as the only allowable exception to the rule.

4Section 47 of the Act reads:

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( 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.

(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.

What is notable about the section is, first, that by the operation of subsection (2) a religious exemption from payment of dues is valid only where an objector was already employed by the employer when the dues check-off clause first came into effect. The Act does not give a religious objector the right to avoid payment of dues where he entered his employment in the knowledge a union or agency shop was in effect. This limitation emphasizes the high value placed by the Legislature on the agency shop as a method of achieving equity in distribution of the financial burden of collective bargaining. Second, subsection 1 only gives the Board the power to order that the agency or union shop provisions of a collective agreement do not apply to the objector and that the objector is not required to pay "any dues, fees or assessments" to the trade union. I take the natural meaning of the subsection to be that the Board has no jurisdiction to grant a partial exemption from payment of dues. In other words, an application for religious exemption from payment of dues is an "all-or-nothing" proposition, and should not be granted lightly.

5Given the Legislature's strong approval of the principle behind union security clauses, and the absence of any power in the Board to grant partial exemptions from payment of dues, it seems to me grossly unfair that an employee might be allowed to escape payment of all dues when his religious objection is directed against one particular action or one particular program of the union. If the Legislature had intended that religious objectors be allowed to withhold dues on the basis of objections to non-collective bargaining actions of the union, surely it would have granted the Board power to apportion an objector's dues between objectionable and non-objectionable purposes and grant an exemption for the latter only. This leads me to conclude that section 47 is intended to apply only where the applicant's objection relates to unionism in general or to the particular union acting in its role as exclusive bargaining agent. Only objections of this type are so fundamental and irreconcilable that they can justify the total exemption from dues, fees, assessments and membership contemplated by the Act.

6Up to this time the Board has analyzed applications for exemption from union security clauses on the ground of religious objection by asking the questions set out in Helena Wybenga, [1976] OLRB Rep. Aug. 422: are the applicant's beliefs sincerely held? Are they religious? and are they the cause of the objection to paying union dues? Until very recently these tests were perfectly adequate for deciding the question. Applications under section 47 have almost always been based on religious objection to the idea of withholding labour to achieve collective bargaining aims, to the interposition of the union as an intermediary between employer and employee, or to the confrontational nature and secular aims of trade unionism. These are objections that go to the fundamental nature of trade unionism or the individual union acting as bargaining agent. But the Board has recently begun to encounter applications based on religious opposition to particular actions taken by the union in its role as political and social interest group. In Jacob Immanuel Schochet [1983] OLRB Rep. Sept. 1472, the applicant took issue with a resolution of the Canadian Labour Congress expressing support for the Palestine Liberation Organization. In Paul Tremblay [1984] OLRB Rep. Feb. 247, as in the present case, the applicant relied on his opposition to an OFL resolution favouring liberalization of abortion law and policy in Canada. This trend concerns me greatly. If the Board adopts an interpretation of section 47 of the Act that allows exemptions for religious objections to such non-essential activities of a trade union, unions will be deprived of 100% of objectors' dues, even though the objection may re]ate to a minor element in the union's activities, and even though the objection may not be incompatible with the union's representation of the objector in collective bargaining. I cannot believe that the Legislature intended such a result. When a union takes a position in a political or social issue not directly related to collective bargaining, employees dissenting on that issue have recourse to the internal democratic processes of the union. If the union maintains or commits funds to its position in the face of vigorous opposition within its constituency, it will pay the price of alienating a portion of that constituency, with the implications that holds for the union's continued bargaining rights. It is surely a remedy out of all proportion to the offense that the union has given to an objector's religious conscience that it should be deprived of all the objector's dues, even the portion devoted to perfectly legitimate, non-controversial collective bargaining purposes.

7The adoption of an interpretation of section 47 that renders unions vulnerable to religious exemption applications founded on opposition to union resolutions on social and political issues is all the more unfortunate where, as here, the offending OFL resolution was voted onto the agenda from the floor against the recommendation of the convention executive and passed in a free vote of the delegates. It would be an unhappy development if unions or their umbrella federations were forced to close their convention agendas and limit the free flow of debate to avoid generating a rash of religious exemption applications based on non-collective bargaining issues.

8Accordingly, it is my view that the applicants' objection to the union's position on abortion is not capable of supporting the exemption claimed, even if it could be shown that the union actually spent a portion of its revenues from dues on promoting its position.

9I would also conclude that Mrs. Geyer's objection that the union's constitution and oath do not make explicit reference to God is not capable of sustaining an application for exemption from dues. Section 47(1) of the Act gives a discretion to the Board to order that an agency shop clause not apply where a religious objection to payment of dues has been established. I think it a proper exercise of this discretion that the Board not allow an expressedly - religious objection to a union policy of religious non-affiliation to be grounds for an application for exemption from dues. A trade union is an organization open to and representing individuals of all beliefs without discrimination. It is required to be so by section 13 of the Act, which states:

13. The Board shall not certify a trade union.., if it discriminates against any person because of his race, creed, colour, nationality, ancestry, age, sex or place of origin.

It is entirely in keeping with the non-sectarian spirit of trade unionism as mandated by section 13 that a union not express a religious principle in its constitution or oath. If a union were to declare adherence to a certain religion or religious belief, it might well face religious exemption applications from non-adherents. Is it then to be subjected to similar applications from adherents of a particular religious belief because it has adopted a studied position of non-adherence in its constitution and oath? I think not. The Act should not be interpreted in a way that places a trade union in a "no-win" situation between the demands of certain unit members for a declaration of religious affiliation or adherence on one hand, and the principles of non-discrimination and non-sectarianism that are fundamental to both the concept of an exclusive bargaining agent and public policy in general. As a matter of policy, therefore, an objection to a union's non-expression of a sectarian principle should not be allowed to found a religious exemption from a union security clause.

10The rationale for this approach is even stronger in an agency/shop situation, as here. The union oath applies to members only, and the constitution primarily regulates relationships between union members. Mrs. Geyer is not a member, nor is she required to be by the collective agreement in question. Mrs. Geyer would therefore appear to have no direct interest in what the union does or does not proclaim in its internal instruments, and it would be even more incongruous that her objection, however sincere, be given effect. If the union were actually to do something in its role as bargaining agent that offended her sincere belief in the primacy of God, the situation would probably be different. Section 47 of the Act, however, is intended to provide an avenue of relief where an employee experiences a direct and irreconcilable conflict between his religious conscience and his legal and contractual obligations as a member of the bargaining unit. A union's failure to declare a religious principle should not be recognized by the Board as a fact raising a conflict of this type.

11Having concluded that the foregoing objections cannot support an exemption from dues under s. 47 of the Act, both applications stand or fall on the applicants' belief that the union's actual or contemplated resort to strike action for collective bargaining purposes is contrary to the word of God. On the whole of the evidence, I am not satisfied that this belief is the cause of the applicants' objections to paying union dues. Mrs. Geyer in cross-examination admitted that payment of dues was not necessarily a problem for her if no dues money was being spent on the union's abortion position. This admission together with the relatively superficial treatment this belief received in Mrs. Geyer's testimony leads me to conclude that it did not contribute to her objection to paying union dues.

12In Mrs. Hall's case, the contention that her objection to payment of dues was caused in part by religious belief in the wrongfulness of strike action is undermined by her previous membership in OPSEU and her expression of dissatisfaction with the union. While I agree that an individual's beliefs may change over time for the purposes of section 47, an expressed change of beliefs should be scrutinized carefully by the Board, especially when it coincides with a general deterioration of the relationship between the applicant and the union. In this case I must say that Mrs. Hall's expressed change of beliefs has not been made out to be a factor in the development of her opposition to financially supporting the union. Mrs. Hall must have joined the union with the knowledge that it would support the right to strike. I cannot help but feel that it is more than a coincidence that Mrs. Hall undertook a prolonged (seven months) re-examination of her religious beliefs about unionism at exactly the same time as the abortion controversy was "heating up" within her union, and at the same time as she developed a concern over internal administration of her local sufficient to cite representatives' 'dishonesty" as a reason for her resignation from membership. In my view, Mrs. Hall's objection to strike action must be seen as a rationalization of an existing antipathy to her union rather than an independent change of personal religious belief.

13It therefore follows that none of the objections advanced by the applicants support the granting of an exemption from payment of dues pursuant to section 47 of the Act. In my view the sincere religious objections established by the applicants relate to matters properly outside the scope of section 47 of the Act. I would dismiss the applications.