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Duty of Fair Representation is Not a Duty to Handhold: OLRB Dismiss Complaint that Union Was Not More Supportive of Decision Not to be Vaccinated

COVID-19 has been rapidly changing the workplace for almost two years now and decisions on vaccination policies continue to be released. CCPartners has been working to keep employers up to date on the ever-evolving law on vaccination policies. You can find some of our latest blog summarizing decisions regarding vaccination policies here. In today’s blog we turn to Bloomfield v Service Employees International Union where several employees filed an application with the Ontario Labour Relations Board (the “OLRB”) against their union claiming that it failed to fulfill their duty of fair representation under s. 74 of the Labour Relations Act, 1995 (the “Act”) with respect to their employment with CarePartners, who was an intervenor in this case.

Background

In the fall of 2021, CarePartners, who provides home healthcare services, introduced a COVID-19 vaccination policy which required employees to be fully vaccinated no later than November 30, 2021. The employer later made an allowance and permitted employees to continue to work until January 2022, so long as employees received at least one dose by November 29, 2021 and attested that they would receive a second dose by January 19, 2022.

After the release of the policy, the union notified its members that it had received legal advice on the employer’s policy. Based on that legal advice, the union warned members that any grievances against the policy were unlikely to succeed and that, without a valid exemption, an employee who refused to be vaccinated could be disciplined or dismissed. At the time the application was filed the applicants, who were all personal support workers, were not yet on unpaid leave. Once the applicants were placed on unpaid leave, the union responded and filed a group grievance on their behalf.

In the original application, the employees claimed that the employer’s policy was unfair, contrary to the collective agreement and failed to provide reasonable and available alternatives. In making their arguments, one of the applicants referred to a letter she wrote which outlined her views about the vaccine and vaccine related statistics. During a consultation meeting held by the OLRB, the employees alleged that the union:

1. had insufficiently communicated with them and/or discouraged them from pursuing action against the policy;
2. failed to challenge the policy before November 30, 2021 (prior to the applicant’s unpaid leave);
3. did not take sufficient steps in their group grievance;
4. failed to challenge the unfairness created between employees who were allocated extra time for receiving one dose and those who did not.

The applicants requested as a remedy that the union pursue their concerns faster and with more force.

The Union’s Duty of Fair Representation

To successfully make a claim that a union breached its duty of fair representation an applicant must show that the union acted in a manner that was arbitrary, discriminatory and/or in bad faith. This conduct has been previously defined by the OLRB as:

1. “arbitrary” conduct is capricious, implausible or unreasonable, often demonstrated by a consideration of irrelevant factors or a failure to consider all the relevant factors;
2. “discriminatory” is broadly defined to include situations in which a trade union distinguishes between or treats employees differently without a clear or labour relations reason for doing so; and
3. “bad faith” is conduct motivated by hostility, malice, ill-will, dishonesty, or improper motivation.

An application will be dismissed for failing to make out a prima facie case if it is clear, or plain and obvious that it has no reasonable chance of success for establishing a violation of the Act. A breach of a duty of fair representation application will be dismissed for failing to make out a prima facie case if it is obvious that an applicant has no chance of establishing that that the union violated their duty by acting in an arbitrary, discriminatory and/or bad faith manner.

The OLRB’s Decision

Vice-Chair Lawrence dismissed the application because the applicants did not establish a prima facie case of a breach of the union’s duty of fair representation under the Act. In coming to this finding, she stated that “fundamentally, the applicants are unhappy about the employer’s COVID-19 vaccination policy and are unhappy that the union has not insulated them from their decision to remain unvaccinated. This does not make out a breach of the duty of fair representation.” In her decision, Lawrence noted that none of the complaints were about the union’s conduct but about the employer’s vaccination policy. On the contrary, the union clearly and effectively communicated with its members in response to the vaccination policy, the applicants simply just disagreed with the message in the communications. Noting that a s. 74 complaint was not the correct forum for the applicants, Lawrence turned to previous case law that dealt with a similar complaint and stated that:

“a duty of fair representation application is about a union’s conduct in the representation of its members and is ‘not the forum for debating or complaining about vaccination in general, this vaccine in particular, scientific studies, the government’s directions, and/or a particular employer’s policy”

With respect to the complaint regarding the grievance filed by the union, the Board has consistently held that a union is not required to file a grievance to meet its duty of fair representation. Despite not being required by the duty to immediately file a grievance, Lawrence did note that the union filed a grievance once the employees “suffered an adverse employment consequence” by being placed on unpaid leave. Outside of what the union had already done, Lawrence found that there was nothing else the union could or should do.

Takeaways

This case confirms that the union acted correctly by following the legal advice it received and only pursuing a policy grievance when its members were negatively impacted by being placed on unpaid leave. As we have seen and discussed in other COVID vaccination cases, vaccination policies that are reasonable and consider the rights of employees are more likely to be upheld. This case does not consider the validity of CarePartners’ vaccination policy, but it is in line with the narrative that an employee’s personal preference against the COVID vaccination is not always a legally valid complaint against a cogent and reasonable policy.

While cases on COVID-19 vaccination policies are continuing to emerge, it can still be difficult for employers to know how to navigate the creation and implementation of a vaccination policy. If your business is looking to institute a COVID-19 policy or looking to have your current policy updated on the basis of the latest developments in the law, please reach out to the lawyers for employers at CCPartners for proper guidance and support.       

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