In an earlier blog post this year, we looked at a case suggesting that unions that are unsuccessful in challenging workplace mandatory vaccine mandates are not in breach of their duty of fair representation under the Ontario Labour Relations Act, 1995. 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 or depending contractors.
An even more recent decision, this time at the Canada Industrial Relations Board, seems to support that earlier finding. In Watson v Canadian Union of Public Employees, a union was not only unsuccessful in challenging a mandatory vaccine policy, they actually refused to advance a challenge altogether. Even in this context, unions may not be in breach of their duty of fair representation, which reveals just how difficult it will be to make out such a case.
Background and Facts
The complainant, in this case, was a flight attendant with Air Canada. On August 13, 2021, the Government of Canada announced that it would require all employees in the federally regulated air transportation sector, such as Air Canada, to be vaccinated by no later than the end of October, 2021. That same day, the Union emailed their members to voice their support for the vaccine mandate, arguing that vaccination was a “proven strategy to mitigate the threat of COVID-19.” Already, we see that the Union here was supportive of the new policy. By the end of August, Air Canada had implemented a mandatory vaccine policy requiring vaccination by October 31st, failing which employees faced discipline up to termination.
Despite their support for vaccinations, the Union also communicated that they would challenge any discipline, including termination, which resulted from the new workplace vaccination policy. Nevertheless, they remained of the view that “vaccines were critical to providing a safe work environment for employees and ensuring a recovery of the airline industry.”
Should the Union Challenge the Policy?
The Union received two separate legal opinions on the viability of the vaccine policy. They concluded that the Air Canada policy would likely withstand a challenge through grievance arbitration. Furthermore, it was decided that a challenge pursuant to the Canadian Charter of Rights and Freedoms would also be unsuccessful. The policy would likely be deemed reasonable at arbitration (and this is not surprising, given that many similar policies have already been deemed reasonable, for instance, as discussed in this and this earlier blog post).
Based on this, the Union told its members that it would be focusing its efforts on the implementation and administration of the vaccine policy, rather than on the policy itself, and supporting members experiencing discipline pursuant to the policy.
The Duty of Fair Representation Complaint – What Was the Result?
The Canada Industrial Relations Board had to decide whether the union acted in a manner that was arbitrary, discriminatory or in bad faith in making its decision not to pursue a grievance challenging the employer’s mandatory vaccination policy. A summary of what this means was helpfully provided in a separate Board decision:
- A union must not act arbitrarily. Arbitrariness refers to actions of the union that have no objective or reasonable explanation, that put blind trust in the employer’s arguments or that fail to determine whether the issues raised by its members have a factual or legal basis.
- A union must not discriminate on the basis of age, race, religion, sex or medical condition. Each member must receive individual treatment and only relevant and lawful matters must influence whether or not a grievance is referred to arbitration.
- A union must not act in bad faith; that is, with improper purpose.
The Complainant’s main argument here was that the decision not to pursue a policy grievance was arbitrary. In the Complainant’s view, the Union did not “seriously or sufficiently consider the prejudicial impact of the policy on a number of bargaining unit members who will not comply with the policy due to medical or other personal reasons.” As union members, they have no individual right to seek remedies in the courts – the union’s efforts are their only hope.
In answering these questions, the Board began by acknowledging that an employee represented by a union does not have a right to pursue a grievance to arbitration – this is the role of the union as the exclusive bargaining agent. The union’s duty of fair representation does not impose on them an obligation to take all grievances to arbitration. The union has no obligation to advance grievances that, in its best judgment, are not likely to succeed.
The Board did not agree that the Union’s actions were arbitrary. They note that the Union was well aware of the objection of certain employees to the vaccination policy. As events unfolded, the Union regularly communicated with their members and kept them up to date on any and all developments. The Union quickly obtained legal opinions on the new policy and shared the results of those opinions with their members. It was decided that the likelihood of success in challenging the policy was very low. In the Board’s view, “the union turned its mind to the issues at play and was fully engaged with its membership.” The Union had not been acting arbitrarily.
The Board noted that this case is distinguishable from other cases where mandatory vaccine policies were held unreasonable (such as the Electrical Safety Authority decision, as discussed in this blog post). The employer in Electrical Safety Authority was not under a government order to establish a vaccination policy. Here, Air Canada implemented a vaccine policy in compliance with an order issued by the federal government directing airlines to adopt vaccination policies.
Given all of the above, the Board was not persuaded that the Union had acted in a manner that was arbitrary, discriminatory or in bad faith. As such, the duty of fair representation complaint was dismissed.