As mandatory vaccine policies continue to be implemented in workplaces across Ontario, many unionized employees are under the impression that their unions have a duty to stand up for them and oppose such mandates. Those employees who face termination of employment without cause or another discipline as a consequence of their inability or failure to comply with vaccine mandates often expect their unions to grieve such discipline. To their surprise, not all unions are willing to do so.

We have started to see many unionized employees alleging that unions who fail to oppose mandatory vaccine policies are in breach of their duty of fair representation. The “duty of fair representation” says that a union shall not act in a manner that is arbitrary, discriminatory or in bad faith in representing employees.

Unfortunately for these employees, a recent decision of the Ontario Labour Relations Board might signal that unions are not in breach of their duty of fair representation where they are unsuccessful in defending employees from mandatory vaccine policies.

The Facts: Tiffany Bloomfield v Service Employees International Union

Each of the employees in this case were Personal Support Workers who worked for an employer who provides home healthcare services. That employer, like so many other employers, introduced a COVID-19 vaccination policy. The union advised employees that a grievance could be filed regarding the vaccine policy, but that such grievances were unlikely to succeed and that employees who refused to be vaccinated without some valid exemption risked discipline or dismissal.

On November 30, 2021, the employees were placed on unpaid leave in accordance with the policy. That same day, the union filed a group grievance which, as of the date of this decision, was still ongoing.

The Decision: No Breach of Duty of Fair Representation

The Labour Relations Board, after reviewing all the facts, concluded that the employees had “no reasonable chance of success in establishing a violation of the duty of fair representation.” In the Board’s view, their application boiled down to a complaint about the employer’s vaccine policy and their belief that the union should support their decision to remain unvaccinated “without qualification or question”. Ultimately, this was not an application about the union’s conduct being arbitrary, discriminatory or in bad faith.

The employees continuously asserted their belief that the employer’s policy was unfair and contrary to the collective agreement. When advised that they must refer to the union’s conduct, they pointed to three perceived failings on the part of the union:

  • the union had not communicated sufficiently with them and/or had discouraged them from “taking action”;
  • the union should have taken steps to challenge the policy before November 30, 2021; and
  • the union was not taking enough action with respect to the already ongoing grievance.

In the Board’s view, none of the above complaints established a prima facie breach of the duty of fair representation. Regarding the union’s communications, the union had been very clear with their members on the legal advice they had received and what the union determined to do in response. The union did not fail to communicate with their members about the policy. Furthermore, regarding the timing of the grievance, the Board noted that unions are not even required to file grievances in order to meet their duty of fair representation. As long as the union does not conduct itself in a manner that is arbitrary, discriminatory or in bad faith, they do not need to file a grievance by a particular date or proces it in a particular manner. According to the Board in Harkin v. Canadian Union of Brewery and General Workers Component 325:

“… merely refusing to file a grievance does not constitute a breach of the duty of fair representation.  Any breach of the duty of fair representation arises not from the fact that the union made a choice as to whether to file a grievance, but from the manner in which that choice was made: the facts stated in the application must allow the Board to conclude that the union has acted in a manner that was arbitrary, discriminatory or in bad faith.”

Obviously, this is bad news for unionized employees who believe their unions are obligated to file grievances on their behalf. A union who does not file a grievance, according to the Board, is not necessarily in breach of the duty of fair representation unless the manner in which they chose not to file a grievance was arbitrary, discriminatory or in bad faith.

In this case, there was nothing to suggest that the union acted in a way that was arbitrary, discriminatory or in bad faith. For that reason, the application was dismissed.

Not About the Merits

This is not the only case in which the Board found a duty of fair representation case to be more about the merits of the vaccine policy than the conduct of the union. In another, Tina Di Tommaso v Ontario Secondary School Teachers’ Federation, the Board said:

“A duty of fair representation complaint at the Ontario Labour Relations Board is about a union’s conduct in the representation of its members. The Board 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.

Moving forward, employees who wish to oppose their employer’s vaccine policy must be more careful in choosing the means by which they pursue that complaint. Their personal views about a mandatory vaccine policy is not part of the analysis in a duty of fair representation case.