Regular Focus Alert readers will be aware of recent arbitral decisions where unions have challenged employers’ mandatory COVID-19 vaccination policies with varying degrees of success. However, what about the situation where a union refuses altogether to mount such a challenge in the face of demands from bargaining unit members? In a recent decision, the Canada Industrial Relations Board (the “Board”) was faced with precisely such a situation and was tasked with determining whether the union’s decision constituted a breach of its duty of fair representation (“DFR”) in the circumstances.
The complainant, a flight attendant with Air Canada, is a member of the bargaining unit represented by CUPE – Air Canada Component (the “Union”). At all relevant times, the complainant was on a full-time flight release, having been designated by CUPE Local 4095 (the “Local”) as the Chair of the local preferential bidding system committee. In her role, the complainant, along with other committee members, developed monthly work schedules in accordance with employee preferences and seniority to meet Air Canada’s operational and classification requirements. Prior to the outbreak of the COVID-19 pandemic, the complainant worked a portion of her time from home.
Chronology of Events
On August 13, 2021, the Canadian government announced its intent to require that all employees in the federally regulated air, rail and marine transportation sectors be vaccinated against COVID-19 by the end of October 2021. Following this announcement, the Union sought and obtained a preliminary legal opinion on the issue of the government’s intended mandate (the “First Opinion”), a copy of which was distributed to its membership.
On August 25, 2021, in response to the government’s announcement, Air Canada announced the implementation of a mandatory COVID-19 vaccination policy (the “Policy”). Pursuant to the Policy, all employees were required to be vaccinated by October 31, 2021, subject to the employer’s duty to accommodate. The Policy further indicated that non-compliance would result in consequences up to and including an unpaid leave of absence or termination, except for those who qualified for accommodation.
On August 26, 2021, the complainant contacted the Local president in respect of the Policy. At that time, she was advised that the Union intended to challenge any discipline resulting from its application. Days later, a group of employees which included the complainant also contacted the Union to express concerns about the impact of the Policy. In response, they were advised that the Union was in consultation with legal counsel to assess the Policy and determine whether a grievance would be filed.
On August 31, 2021, the Union sought and obtained a second legal opinion (the “Second Legal Opinion”). The Second Legal Opinion concluded that the Policy would likely withstand a challenge through grievance arbitration, and that a challenge of the government’s intended mandate under the Canadian Charter of Rights and Freedoms would be unlikely to succeed. Importantly, the Second Legal Opinion confirmed the advice contained in the First Legal Opinion.
On September 3, 2021, the Union communicated the final result of its legal consultation to the membership. In doing so, it confirmed its intention to support individual members through the grievance process by challenging any discipline resulting from the application of the Policy, rather than advancing a policy grievance.
Dissatisfied, the complainant retained counsel who, on September 14, 2021, wrote to the Union to assert that it was acting in a manner that was arbitrary, discriminatory and in bad faith with respect to the DFR it owed to the complainant. She asked the Union to rectify the situation by, amongst other things, initiating a policy grievance. Nonetheless, the Union maintained its intention to support its members on a case-by-case basis by filing individual grievances where appropriate. Accordingly, counsel for the complainant again wrote to the Union, expressing dissatisfaction and asking that her demands be met by September 24, 2021. Otherwise, she indicated that she intended to file a DFR complaint with the Board.
On October 6, 2021, the Canadian government announced its plans to proceed with a COVID-19 vaccination mandate across the federal public service and federally regulated transportation sectors. Consequently, on October 29, 2021, the Minister of Transport issued Interim Order No. 43 pursuant to the Aeronautics Act, which directed all airlines to adopt and implement a mandatory COVID-19 vaccination policy for all employees by October 31, 2021. Specifically, the Interim Order indicates that this policy should provide only for limited exemptions due to a certified medical contraindication or an objection on religious grounds.
On November 9, 2021, counsel for the complainant contacted the Union once more, this time advising it that Air Canada had denied the complainant’s request for a medical exemption. Immediately, the Local filed an individual grievance on behalf of the complainant. However, the grievance was denied by Air Canada at level 1 of the grievance procedure and was subsequently forwarded to the Union’s grievance committee.
In the matter before the Board, the issue at hand was whether the Union’s decision not to pursue a policy grievance contesting the Policy, despite the insistence of a group of bargaining unit members, breached the DFR owed to the complainant as set out in section 37 of the Canada Labour Code. In other words, the Board was tasked with determining whether this decision was arbitrary, discriminatory, or made in bad faith.
With respect to the allegations of arbitrary conduct, the Board rejected the complainant’s position. The Board indicated that it was well established that a unionized employee does not have a right to pursue a grievance to arbitration, as that is the role of the union as his or her exclusive bargaining agent. Accordingly, the Union’s DFR does not mean that an employee has an absolute right to have grievances filed or taken to arbitration. In fact, the Union has considerable discretion in making decisions that involve the representation it provides to its membership.
In this case, the evidence established that the Union had provided regular information to its membership as events unfolded, sought the First Legal Opinion upon learning of the government’s intended mandate, shared the First Legal Opinion with membership, and sought the Second Legal Opinion from a different counsel upon learning of the Policy. In conclusion, then, the Board found that the Union had turned its mind to the issues at play and was fully engaged with its membership. The Board distinguished the present case from the decision in Electrical Safety Authority (Arbitrator Stout) on the basis that the employer in that case was not subject to a government order to establish a mandatory COVID-19 vaccination Policy. The Board also refused to entertain the complainant’s argument that the Union did not provide relevant considerations to its legal counsel or that it did not ask the right questions on which to base the legal opinions and, consequently, refused to order the production of any documents on which the legal opinions were based, as requested by the complainant.
With respect to the allegations of bad faith conduct, the Board once again rejected the complainant’s position. The Board asserted that it is not necessarily a breach of the DFR when a union makes a decision that favours one group of employees over another. Rather, unions routinely have to make decisions that require a balancing of the interests of various groups within its membership. The Board repeated the fact that the DFR does not mean that a union has the obligation to pursue every grievance or to intervene in every situation where an individual employee’s interests are affected. Instead, it means that the union must consider the interests of all members of the bargaining unit and act fairly in light of them.
In this case, the evidence established that only about 10% of the membership would bear the consequences of the Policy, as a large majority of Air Canada’s employees supported the Policy and were fully vaccinated. Particularly in the face of overwhelming scientific evidence of the effectiveness of vaccines, the Board found that there was simply no evidence that the Union had acted in bad faith in adopting a position that supports and favours vaccination for its membership. A union is not obliged to consult with every member when assessing whether to challenge an employer policy that affects its membership in different ways, though it was clear that the Union had communicated with its membership regularly and was well aware of its differing views on the issue of vaccination.
Finally, the complainant asserted that the collective agreement did not contemplate a vaccination policy and that Air Canada had no right to impose such an invasive medical procedure as a condition of employment. She therefore claimed that the Union’s failure to advance a policy grievance or to demand that the employer negotiate the terms of the Policy was a breach of the DFR. However, the Board noted that the Union’s interpretation of the collective agreement differed from that of the complainant and held that it was the Union who had the ultimate responsibility to decide on the interpretation of the collective agreement. In the result, the Board held that the Union retained the discretion to determine whether it should challenge the Policy as a proper exercise of management rights.
In light of the above, the Board dismissed the DFR complaint by unanimous decision.
In Our View
Although the question of whether a union’s decision to not challenge an employer’s mandatory COVID-19 vaccination policy constitutes a breach of its DFR will clearly depend on the specific facts and circumstances in each case, this decision from the Board is promising in that it properly defers to the Union in its role as bargaining agent for its membership. In the result, barring arbitrary, discriminatory or bad faith conduct in the making of such a decision, this decision seems to indicate that unions in federally regulated workplaces – or at least those in the federally regulated transportation sectors – will retain the discretion to support employers in the implementation of reasonable COVID-19 vaccination policies intended to protect the health and safety of their employees.