[1987] OLRB Rep. March 343
1737-86-M; 1738-86-M; 1739-86-M; 2096-86-M; 2097-86-M; 2098-86-M Doug Carter, Applicant v. National Automobile, Aerospace and Agricultural Implement Workers Union of Canada, (CAW-Canada) and its Local 27, Respondent Trade Union v. Highbury Ford Sales Limited, Respondent Employer; Ronald Alexander Marks, Applicant v. National Automobile, Aerospace and Agricultural Implement Workers Union of Canada, (CAW-Canada) and its Local 27, Respondent Trade Union v. Highbury Ford Sales Limited, Respondent Employer; David R. Scott, Applicant v. National Automobile, Aerospace and Agricultural Implement Workers Union of Canada, (CAW-Canada) and its Local 27, Respondent Trade Union v. Highbury Ford Sales Limited, Respondent Employer; Richard D. Harvey Applicant, v. National Automobile, Aerospace and Agricultural Implement Workers Union of Canada, (CAW-Canada) and its Local 27, Respondent Trade Union v. Highbury Ford, v. Respondent Employer; Mike Tudor, Applicant v. National Automobile, Aerospace and Agricultural Implement Workers Union of Canada, (CAW-Canada) and its Local 27, Respondent Trade Union v. Highbury Ford, Respondent Employer; John Skillen, Applicant v. National Automobile, Aerospace and Agricultural Implement Workers Union of Canada, (CAW-Canada) and its Local 27, Respondent Trade Union v. Highbury Ford, Respondent Employer
BEFORE: Judith McCormack, Vice-Chair, and Board Members J. Rundle and D. Patterson.
APPEARANCES: David R. Scott, Ronald A. Marks and Doug Carter for the applicants; L. A. MacLean, Q.C., Bud Bryant, Bert Rovers and Jim Shafton for the respondent trade union; no one appearing for the respondent employer.
DECISION OF THE BOARD; March 5, 1987
1The name of the respondent trade union is amended to read: "National Automobile, Aerospace and Agricultural Implement Workers Union of Canada, (CAW-Canada) and its Local 27".
2These cases involve six applications under section 47 of the Labour Relations Act requesting orders that the applicants be exempted from paying dues, fees or assessments to the respondent trade union because of their religious convictions or beliefs. David Scott, one of the applicants, acted as spokesperson for the group.
3At the commencement of the hearing, the respondent union:
a) moved to have the applications of those of the applicants who had not appeared dismissed;
b) moved to have the applications of Mike Tudor, Richard Harvey and John Skillen dismissed on the basis that they did not disclose a prima facie case; and
c) requested that the applications be heard separately and those of the applicants whose cases were not being heard at any given time be excluded from the hearing room.
4After hearing the parties' submissions, the Board ruled orally as follows:
With respect to the respondent union's second motion, the Board is unanimously of the view that the application of Mike Tudor does not disclose a prima facie case for the remedy requested, and as a result, we are dismissing it without a hearing pursuant to Rule 71 of the Board's Rules of Practice.
We are also unanimous that the application of John Skillen does not suffer from the same defect and we decline to dismiss it without a hearing.
With respect to the application of Richard Harvey, the majority, Board Member Patterson dissenting, declines to dismiss it without a hearing.
With regard to the procedure of the hearing, we are also unanimous that these cases should be consolidated for hearing and that we are not prepared to exclude any of the applicants from any part of the consolidated hearings.
Finally, we are not prepared to dismiss the cases of Richard Harvey and John Skillen for non-appearance at this point since they have a representative here speaking on their behalf.
5As it turned out, neither Mr. Skillen nor Mr. Harvey appeared at any point during the two days of hearings in these matters and no evidence was tendered with respect to their applications. The burden of proof in this kind of application is on the applicant to establish that he or she meets the criteria set out in section 47 (see Helen Sarah Freedhoff, [1982] OLRB Rep. Jan. 135), which Mr. Skillen and Mr. Harvey have failed to do. As a result, their applications are dismissed.
6Turning to the three remaining applications, the parties were able to agree on the following facts.
7The respondent trade union applied for certification for the bargaining unit in question in March of 1985. At that time there was a dispute with respect to the exclusion of two individuals from the bargaining unit which was resolved by means of an examination and a subsequent hearing. Both at the initial hearing into the certification application and at the subsequent hearing into the examiner's report, David Scott, one of the applicants here, appeared as the spokesperson for a group of employees objecting to the certification of the union.
8A representation vote was held on February 28, 1986 and in accordance with the outcome of that vote, the Board issued a certificate to the respondent trade union on March 13, 1986.
9The union and the employer subsequently entered into a memorandum of settlement which was ratified by a vote held July 3, 1986 and incorporated into a formal collective agreement dated September 4, 1986. The respondent union agrees that these applications are timely.
10The three remaining applicants each testified on their own behalf and that evidence, in conjunction with the respondent union's evidence, established the following facts.
11The three applicants are employed as auto mechanics by the respondent employer in an area described as the mechanical shop. All three are also members of the Harvester Baptist Church in Lambeth which they founded, together with Mr. Scott's brother, some four years ago. Mr. Scott is the treasurer of this Church and Mr. Marks and Mr. Carter are deacons. The congregation which initially consisted of the immediate families of the founders has now grown to 25 members. The applicants have requested that their dues be directed to this Church which is a registered charity, rather than to the union. The Harvester Baptist Church is an independent Baptist church with no relationship to the Baptist governing body. It is common ground that the latter does not preach against trade union membership or collective bargaining.
12Mr. Scott has been employed by the employer for some seven years. When the union applied for certification, he actively campaigned in opposition to the union, including circulating a petition and visiting employees at their homes to persuade them to vote against the union in the representation vote. Prior to this application, Mr. Scott had not expressed his objections to the union in religious terms.
13Mr. Carter and Mr. Marks commenced working for the employer in June of 1986, after the union was certified but before a collective agreement had been signed. It appears that these three applications were to some extent a joint effort. The applicants met together to discuss what they were required to prove to obtain the religious exemption and to select the Bible passages and other references they would use in this regard. The applications were then typed by Mr. Marks' sister. There was some evidence that Mr. Scott had also been recruiting potential applicants for exemptions amongst other employees in the body shop area. The three applicants who did not appear at the hearing worked in the body shop.
14Addressing Mr. Scott's application first, he told the Board that as a born again Christian, he believed that God held him responsible for everything he did and that if he allowed his money to support a union, in effect, he was supporting the goals of the union. In his view, this contravened the Charter of Rights. He particularly objected to the union supporting the New Democratic Party which he felt would lead to socialism. Mr. Scott also considers himself to be a patriot and objected to an article the union circulated suggesting that generals should have to run across the country on one leg to raise money for armaments.
15Mr. Scott told the Board that he believed he had been given his job by God and that he had to try and be the best mechanic that he could be. In his view, unions protect people who do not want to work and he felt they would be the downfall of the country. As an example, he referred the Board to another employee working next to him whom he felt did not work as hard as he did and who should not be paid at the same rate. Mr. Scott was of the view that he himself would have received a larger pay increase in the absence of the union. The Board was referred to certain Bible passages which Mr. Scott interpreted as proscribing the existence of a mediator between an employer and employees, a role he considered the union to be playing.
16Section 47 provides as follows:
(1) Where the Board is satisfied that an employee because of his religious convictions 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.
17In Helena Wybenga, [1976] OLRB Rep. Aug. 422, the Board identified three questions which must be asked about the nature of a section 47 applicant's belief:
Are the beliefs sincerely held?
Are the beliefs religious?
Are the beliefs the cause of the objection to paying dues to the trade union?
18In the case of Mr. Scott, we have no doubt that he is a sincerely religious person. The evidence makes it clear that he is a dedicated follower of a fundamentalist Christian sect and that he is both active in his Church's affairs and observant of the tenets of his religion as he perceives them.
19However, the connection between Mr. Scott's religious beliefs and his objection to paying dues is a tenuous one. Although he is bitterly opposed to unions, that opposition appears to be grounded in a host of social and political views that are not directly traceable to his religious philosophy.
20The majority of Mr. Scott's testimony was devoted to expounding upon those views, which were essentially secular in nature. As the Board pointed out in Douglas N. Butler, [1981] OLRB Rep. Sept. 1319, section 47 was not designed to provide relief for conscientious objectors or to accommodate social or political dissent. We are cognizant of the fact that it may seem cavalier to dissect an applicant's generalized perspective for the purpose of making legal distinctions which may not be either philosophically sound or in accordance with the applicant's own perceptions. Nevertheless, the Board cannot ignore the word "religious" in section 47 and must attempt to give it some content, as the Board noted in Douglas N. Butler, supra:
- What the applicant is in effect asking the Board to do is to legislate the word "religious" out of section 39 [now section 47] altogether. This is not an appropriate function for the Board. Compromising between freedom of religion and egalitarian support for a trade union obligated by law to represent all employees in a bargaining unit is a delicate social issue (cf. again, Vis, supra), and falls properly within the purview of the Legislature. Had the Legislature chosen to grant the objection simply on the basis of "personal conviction", or "genuine belief', or "matters of conscience", it could easily have done so. But it did not. The section is not written simply for "conscientious objectors". As the Ontario Court of Appeal observed in Donald v. Hamilton Board of Education (1945) 1945 CanLII 117 (ON CA), 3 D.L.R. 424, in considering the meaning of "religion" under the Public Schools Act, at page 429:
The fact that the appellants conscientiously believe the views which they assert is not here in question.
- 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 [now section 43], 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 O.R. (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 or 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 [now section 471 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, (1963) 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.
21To the extent that Mr. Scott provided some religious rationale for his anti-union beliefs, that rationale shifted over the course of the two days of hearings. Initially, he explained to the Board that it was the mediation role played by the union which conflicted with his interpretation of certain Biblical references. The following day he advised us that he was not opposed to union representation per se, but only to "closed shop" situations by which it appears he meant any mandatory dues deduction, whether or not union membership is required. While there is no requirement that an applicant's religious views be consistent, in the context of this case we find the overnight shift in Mr. Scott's rationale undermines the credibility of his assertions with respect to the source of his opposition to paying dues.
22Neither can we afford to ignore Mr. Scott's history of opposition to the union and his stated intention to continue to seek an end to union representation through the channels provided in the Labour Relations Act. In Helen Sara Freedhoff, supra, the Board commented at page 143 on the level of scrutiny it applies where there is a history of opposition to the union:
- ...As pointed out in P. CL. Packaging Ltd., [1980] OLRB Rep. Oct. 1514, where there has been a history of union opposition, the skepticism of the trade union to an application of this sort is understandable, and the Board must view the matter with great care. Indeed, it would do nobody interested in the integrity of the legislation and of the procedure any good if the section could be used by those whose objection to paying dues to a trade union was based on considerations which could not be considered to be religious in any sense. The legislation was not intended to allow all of those who object strongly to trade unions to avoid their contractual obligations.
23In conclusion, while we do not doubt that Mr. Scott is a sincerely religious person, we are not satisfied that his religious views are the source of his opposition to paying dues. Consequently, his application is dismissed.
24Turning next to Mr. Carter's application, he testified that he became a born again Christian in 1981 and that he believes the Bible is the inspired word of God. Like Mr. Scott, he feels that a union should not come between him and his employer. Mr. Carter told the Board that when he saw dues deductions coming off his paycheque even though he had not voted for the union, he felt that his freedom had been infringed upon. In his view, that has a religious connection because he did not feel that way before he became a born again Christian. Mr. Carter agreed that he did not object in principle to a union representing a person unjustifiably treated or fired and that he would also be prepared to join a committee that protected employees from accidents and looked after their welfare.
25While we are again persuaded that Mr. Carter is an observant follower of his faith, the link between that faith and his opposition to paying dues is unclear. It appears that he considers his opposition to be religious primarily because his views in this regard developed after his conversion. Mr. Carter advised the Board that he had not thought much about unions or politics prior to becoming a born again Christian.
26The Board noted in Helen Sarah Freedhoff, supra (at page 144), that the fact that a religious person holds beliefs do not necessarily make those beliefs religious:
The Board does not accept that all beliefs and convictions held by a religious person are necessarily religious beliefs and convictions. A religious person may believe that the world is flat but that belief, like any other belief which does not obviously relate to God and things Divine, must be examined to determine whether it is in fact religious insofar as that particular believer is concerned.
27We cannot conclude on the evidence before us that simply because Mr. Carter's opposition to paying dues alone after his religious conversion, the latter was the cause of the former. This is particularly so because it is not clear whether his anti-union views followed rapidly upon his conversion or evolved over a period of time.
28Moreover, the connection offered by Mr. Carter between his religion and his opposition to trade unions was very limited and was further pared down in cross-examination. In light of the evidence with respect to the joint origination of the applications, the diffidence in Mr. Carter's testimony, and the contrast in the demeanors of Mr. Carter and Mr. Scott, it is difficult to avoid the conclusion that Mr. Carter was influenced by Mr. Scott in putting forward his claim for exemption. As a result, we find Mr. Carter's assertions less reliable as an expression of his own views.
29In conclusion, we are not persuaded that Mr. Carter's religious beliefs are the cause of his opposition to the paying of dues and his application is also dismissed.
30Mr. Marks' application is a more difficult matter. He testified that he became a born again Christian approximately four years ago and since that time has based his beliefs on the Bible which he considers to be the word of God. Like the other applicants, he too feels that the role of the union as an intermediary is in conflict with certain references in the Bible. He also interprets an injunction that servants obey their masters as applying to an employment situation.
31Mr. Marks advised the Board that he objected to the fact that the union newsletter supported the New Democratic Party and that, in his view, the goals of the New Democratic Party were in conflict with his religious beliefs. However, he did note that he was opposed to unions before he became a born again Christian because of his perception with respect to what unions had done to the economy and to the social structure of Great Britain. He believes that letting employees "have their way" is undesirable and that a person who wants a good wage should work for it. He is firmly of the view that it is not fair for an employee who does good work to earn the same wages as others who work less well.
32Mr. Marks explained that in Great Britain, the frequency of strikes in the news had "turned him off" unions completely and that he found it difficult to understand why people would be out parading the streets instead of keeping the jobs that they had. Mr. Marks advised the Board that before his conversion, his anti-union views were personal; after being saved, they were related to the teachings of the Bible.
33Once again, we conclude without hesitation that Mr. Marks is an earnest and sincerely religious person who is observant of the precepts of his creed. But again, the evidence, on balance, fails to establish a causal connection between his religious beliefs and his opposition to paying dues.
34Of the three applicants, Mr. Marks' religious beliefs were the most articulately expressed, and there is no doubt that they were bona fide and deeply felt. However, his opposition to unions appeared to have its primary source in a specific social and economic philosophy that was only marginally related to his religious beliefs. Given our comments earlier with respect to the religious qualification in section 47 and the views of the Board in Douglas N. Butler, supra, this distinction is critical.
35Although Mr. Marks' religious rationale was more cogent than that of his fellow applicants, the Board has noted previously that the exemption should not be granted where the overall thrust of the objection is not religious in nature. In Helen Sarah Freedhoff, supra, the Board said at page 146:
…….there never was any legislative intention that the exemptions should be granted automatically whenever an applicant could point to an apparent religious belief or conviction on which to base an objection, when the general overall thrust of the objection was not religious in nature. It is our view that when the overall thrust of the objection is seen not to be religious, the objection cannot be characterized as being "because of [the applicant's] religious conviction or belief' within the meaning of section 47. The presence and relative importance and weight given to the obviously non-religious reasons must be considered, based on the evidence in each case. In this case, it is our view that the evidence indicates that the non-religious reasons were so important to the applicant that they must be considered as so colouring the application as to be the cause of the objection. The overall importance of those other reasons is such that the real importance of the religious convictions and beliefs in the context of the objection is hard to assess, and so one cannot be satisfied that the objection is because of the religious conviction or belief. It should be noted that the burden is on the applicant to satisfy the Board, on balance, that section 47 relief should be granted, and that the applicant is not entitled to the benefit of any doubt.
In this case, we find that the overall thrust of Mr. Marks' objection to paying dues is not religious. Like the other applicants, we conclude that he has rationalized his general objections to trade unions in terms of the religious beliefs (see University of Windsor, [1979] OLRB Rep May 458). As a result, his application is also dismissed.
36In summary, we have found that all three applicants have not established that they meet the conditions of section 47, and that they are accordingly not entitled to be exempted from the payment of any dues, fees or assessments to the respondent union.