With mandatory vaccination policies (“MVPs”) turning the modern workplace into a contentious battleground, labour boards across Canada have had to grapple with the question of trade unions’ duty of fair representation (“DFR”) in challenging such policies. Two decisions have recently confirmed that where there is opposition to MVPs, a union is not required to file a grievance every time an employee so requests to meet its DFR, but rather is entitled to communicate with its members regarding the legality of MVPs. These decisions add to the rapidly growing and evolving case law surrounding employers’ mandatory COVID-19 policies in unionized settings.
On January 10 and 19, 2022, the Ontario Labour Relations Board (“OLRB”) in Bloomfield v. SEIU, Local 1 (“Bloomfield”) and the Canada Industrial Relations Board (“CIRB”) in Watson v. CUPE (“Watson”), respectively, dismissed the DFR complaints. In both cases, the applicant members were dissatisfied with their respective employers’ MVPs and their respective unions’ responses to these policies, seeking that their unions insulate them from the resulting adverse employment consequences for choosing to remain unvaccinated.
In Bloomfield, the OLRB held a consultation into an application brought by a group of personal support workers who were placed on unpaid leave for refusing to comply with the MVP of their home healthcare services employer. The applicant members alleged that the union breached its DFR by not communicating sufficiently with them and discouraging them from “taking action,” not filing a grievance when the MVP was first issued, and not taking enough action regarding the grievance itself. Notably, the union had filed a group grievance on their behalf, but only after it had received legal advice, based on which it advised the members that the MVP would most likely be upheld and the grievance would be held in abeyance “pending case law” on this issue.
The OLRB concluded that the union’s conduct was not arbitrary, discriminatory or in bad faith, and therefore, the union did not violate its DFR. In reaching its decision, the OLRB reasoned that it was “fair and prudent” that the union communicated the legal advice it had received and what it intended to do in response to the employer’s MVP. The OLRB noted that the union had a duty to consider the interests of the membership as a whole. Ultimately, the OLRB declined to grant the applicants’ remedial request that the union pursue the grievance more forcefully and quickly.
In Watson, the federally regulated airline employer was subject to a government order requiring that all of its employees be fully vaccinated by a specified date. In response, the union obtained two legal opinions which both indicated that the union’s likelihood of success in challenging the MVP was low. The union regularly communicated with its membership about the employer’s MVP and the likelihood that it would be upheld in grievance arbitration, as well as the consequences employees would face should they refuse to comply. Additionally, the union pursued individual grievances on behalf of its members, including the applicant.
Like in Bloomfield, the CIRB concluded that the union had not breached its DFR based on its decision not to pursue a policy grievance. The CIRB confirmed that a trade union does not necessarily breach the DFR when it makes a decision that favours one group of employees over another based on the reasoning in the following passage:
The complainant and other members may be opposed to vaccination, but the scientific evidence overwhelmingly points to vaccination as the most effective tool to get us past these unprecedented global circumstances. The union took a stance that is aligned with this evidence. A large majority of the membership supports the vaccination policy, as is demonstrated by the high vaccination rate amongst the employees in the bargaining unit. There is simply no evidence to suggest that the union acted in bad faith in adopting a position that supports and favours vaccination for its members.
These cases add precision to the contours of the DFR where MVPs are concerned. In both cases, the OLRB and the CIRB confirmed that the union acted appropriately in following legal advice and communicating its position to its members. The lesson from these two cases: Unions are not required to pursue a grievance in relation to MVPs, especially if such policies are reasonable in the circumstances of a particular workplace.