THUNDER BAY — A transit operator placed on unpaid leave for 10 months for refusing to follow the city's COVID-19 vaccination policy has failed to convince the Ontario Labour Relations Board that his union breached its duty of fair representation.
The City of Thunder Bay was an intervenor in the case.
The man was required to take an unpaid leave of absence in early November 2021 when he declined to either provide proof of being fully vaccinated or to submit to regular rapid antigen testing.
A few days later, the Amalgamated Transit Union filed a grievance on his behalf, but withdrew it a year later after receiving a legal opinion that "the weight of arbitral authority has found that mandatory vaccine policies are a reasonable tool to reduce the risk of transmission of COVID-19."
The union was also advised that the city's policy was less onerous than many other mandatory vaccination policies that have been upheld in arbitration, since it provided employees with the choice between vaccination proof and regular COVID-testing.
The grievance was cancelled after union officials presented a motion to the membership at a meeting regarding the legal opinion.
According to the bus driver's complaint, he had been led to believe the grievance would proceed to arbitration, and argued that correspondence from the union about the appointment of an arbitrator suggested it had acted arbitrarily and in bad faith.
By way of background, he also referred to incidents in 2021 when he contended that he experienced biased treatment from a union shop steward during a discussion about why transit management would not accept his declaration of an exemption from masking.
In its response to the labour board, the union said it complied with the man's request that he no longer be represented by that individual at future company and union meetings.
The complainant was later given a written warning, then a one-day suspension, for failing to wear mandatory personal protective equipment, but the labour relations board noted that there was no suggestion he ever asked it to grieve that discipline.
In its recent ruling dismissing the substance of the driver's complaint — the union's handling of the city's decision to suspend him from employment — the labour board said its review of the material he filed shows that union officials "had regular and extensive communications" with him regarding the filing and processing of his grievance, "and were generally responsive to his inquiries."
It also found that their communications with him about his choices regarding the city's COVID-19 policy "do not further...demonstrate capriciousness as alleged," and that "in all the circumstances, the board is unable to find that...the union breached its duty of fair representation to him in the manner in which it communicated with him."
With regard to the decision to withdraw the grievance months after it was filed, the labour relations board said it is not unusual for a trade union to file a grievance to preserve the grievor's rights, and then obtain a legal opinion with respect to its merits.
It said, as well, that it could not agree with his suggestion that collusion between the union and the city can be inferred from the fact that both parties sought dismissal of the application.
The bus driver returned to work in September 2022 after the city discontinued its COVID-19 rapid antigen testing requirement.
