Williams HR Law LLP

OLRB Decisions Find that Unions Fairly Represented Employees in their Response to COVID-19 Vaccine Policies

February 23, 2022

In a series of recent decisions, the Ontario Labour Relations Board (“OLRB”) dismissed applications alleging that multiple unions breached their duty of fair representation to their members as outlined in section 74 of Ontario’s Labour Relations Act [OLRA]. In these applications, the applicant employees alleged that their unions represented them in a manner that was arbitrary, discriminatory, and/or in bad faith in relation to the unions’ handling of their complaints regarding their employers’ vaccination policies.

To successfully establish that a union has breached its duty of fair representation under the OLRA, an applicant must show that the union acted in a manner that was arbitrary, discriminatory, and/or in bad faith. The OLRB has further defined these terms as follows:

a) “arbitrary” refers to conduct which is capricious, implausible, or unreasonable, often demonstrated by a consideration of irrelevant factors or a failure to consider all the relevant factors;

b) “discriminatory” is broadly defined as including situations in which a union distinguishes between or treats employees differently without a cogent reason or labour relations basis for doing so; and,

c) “bad faith” refers to conduct motivated by hostility, malice, ill-will, dishonesty improper motivation.

Tina Di Tommaso v Ontario Secondary School Teachers’ Federation

In Tina Di Tommaso v Ontario Secondary School Teachers’ Federation [Di Tommaso], the OLRB found that a teacher applicant failed to establish that her union had breached its duty of fair representation in its response to her employer’s COVID-19 vaccination policy. The applicant argued that the union’s failure to respond to all of her emails detailing her unwillingness to comply with the vaccination policy constituted discriminatory treatment in that the union was effectively representing certain members, but not all.

The OLRB found that the applicant did not provide any evidence of arbitrary, discriminatory, or bad faith conduct by the union and found that her application was based on her concerns regarding the COVID-19 vaccine rather than the union’s conduct. In its decision, the OLRB emphasized that duty of fair representation applications are not a 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.” The OLRB reiterated the established principle that unions are required to balance the interests of various members and groups, and that the mere assertion that the union represented an interest of certain members and not of others is not a breach of its obligations in and of itself. As a result, the OLRB dismissed this application.

Bloomfield v SEIU Local 1

In Bloomfield v SEIU Local 1 [Bloomfield], the OLRB similarly found that the personal support worker applicants’ allegations that their union breached its duty of fair representation obligations were unsubstantiated. In Bloomfield, after the employer implemented a mandatory COVID-19 vaccination policy, the union notified its members that it received legal advice indicating that the policy would likely be upheld as reasonable and that any grievances relating to the policy were unlikely to succeed. Despite the advice it had received, the union filed grievances on behalf of its members. However, the union informed its members that it would hold the filed grievances in abeyance pending further case law relating to COVID-19 vaccination policies. As a result, the applicants alleged that the union failed to meet its duty to fairly represent them by insufficiently communicating with them and/or discouraging them from challenging the policy, failing to challenge the policy prior to the applicants being placed on unpaid leave, and not taking sufficient steps in their group grievance. The applicants requested that the OLRB order the union to pursue their concerns faster and with more force.

The OLRB dismissed the application, finding that the applicants did not establish that the union had acted in a way that was arbitrary, discriminatory, and/or in bad faith. Similar to its decision in Di Tommaso, the OLRB ruled that the applicants’ complaints were not about the union’s conduct but were rather about the applicants’ dissatisfaction with the employer’s vaccination policy and the union not insulating them from their decision to remain unvaccinated. Additionally, the OLRB ruled that the union was justified in advising its members about the chances of success of grievances relating to the vaccination policy, and in holding the grievances in abeyance pending case law on an emergent issue. The OLRB concluded that the union met its obligation by communicating with its members in response to the vaccination policy and by filing a grievance once employees were placed on an unpaid leave.

Mustari v CUPE Local 79

In Mustari v CUPE Local 79 [Mustari], the OLRB ruled that the applicants did not establish a breach of the union’s duty of fair representation. In Mustari, after the employer implemented a mandatory COVID-19 vaccination policy, the union held virtual town hall meetings in which the union discussed the policy with its membership but also summarized its legal opinions regarding the policy. The union assured its members that although it supported vaccination, it would challenge discipline or discharge that was levied for non-compliance with the vaccination policy. When the employer later added sanctions for non-compliance to the policy, the union filed a policy grievance challenging the policy and its sanctions. The applicants alleged that the union did not respond to them and/or answer all of their questions, did not protect them from application of the policy, did not provide adequate representation to the employees in the discipline process, and that the union’s actions were not sufficiently quick or aggressive.

In dismissing the application, the OLRB found that the union had met its obligations by sending out e-communications, answering questions, setting up townhall meetings, and basing its position on the legal advice it received. The OLRB emphasized that the union was not required to agree with the applicants or to debate endlessly with them, provided its position was not taken in a manner that was arbitrary, discriminatory, or in bad faith. Further, the OLRB ruled that the union’s duty of fair representation obligation does not require the union to insulate members from the application of a vaccination policy or to ensure that members are not penalized for non-compliance. The OLRB concluded that the union had met its obligations in communicating with members about the risks of pursuing grievances, and by filing grievances when discipline or discharge was imposed on its members.

Takeaways for Employers

Employers should take note of the pragmatic and cautious approach that several unions have adopted in response to employers’ vaccination policies and the grievances that are being brought forward as a result, as demonstrated through this series of OLRB decisions. Employers should be confident in the knowledge that unions are seriously considering the legal advice they are receiving regarding the reasonableness of employers’ vaccination policies, and that that unions are conveying legal advice regarding grievances’ prospects for success to their membership in a well-reasoned manner, even when the advice they receive indicates that challenges to the policy at issue are unlikely to succeed. Most significantly, these decisions demonstrate that in line with this pragmatic approach, some unions are exercising their discretion in choosing which grievances to pursue by either choosing to not aggressively challenge employers’ vaccination policies, or by opting not to pursue meritless grievances relating to vaccination policies at all.

Unionized employers should also be encouraged that the OLRB is dismissing these duty of fair representation applications by unvaccinated employees against their unions. If the OLRB responded differently to these applications, it would likely have led unions to file, and aggressively pursue, more grievances related to employers’ vaccination policies. Instead, these OLRB decisions are likely to give unions more confidence in the more cautious approach that many unions have been taking in responding to vaccination policies.