Rosanna Mustari, Kevin Francis, Terence Thomas, Rodney Nembhard, and Quincy Akande v CUPE Local 79, 2022 CanLII 2433 (ON LRB), decision dated January 11, 2022

In a decision dated January 11, 2022, the Ontario Labour Relations Board (the “Board”) dismissed a duty of fair representation application filed by Rosanna Mustari, Kevin Francis, Terence Thomas, Rodney Nembhard, and Quincy Akande (the “Applicants”) alleging that CUPE Local 79 (the “Union”) had breached s. 74 of the Labour Relations Act, 1995 in respect of their employment with the intervenor, City of Toronto (the “Employer”).

In mid-August 2021, the Employer advised the Union it would be introducing a COVID-19 vaccination policy. In late August 2021, the Union held town hall meetings with its members where counsel for the Union provided his legal opinions regarding the policy and where the Union encouraged vaccinations and stated that it would challenge discipline imposed by the Employer. In October 2021, the Employer amended the policy to include detailed sanctions for non-compliance. The Applicants were suspended for non-compliance in November 2021 and some were terminated in January 2022. In the application, the Applicants challenged the policy and the Union’s conduct. It sought various remedies, including an order that grievances challenging the policy be referred to arbitration.

The Board dismissed the parts of the application challenging the Employer’s policy on the basis that a section 74 complaint was not the right forum for this issue. The Board also dismissed the complaints the Applicants made against the Union on the basis that they did not establish a prima facie case that the Union acted in a manner that was arbitrary, discriminatory or in bad faith in its communication with its members; the opportunity it gave members to ask questions; its position regarding the policy; in its representation of the Applicants at discipline meetings; and in the speed at which grievances challenging the policy were processed.

Further, the Board held that the remedy requested by the Applicants was premature as the grievances were still in the grievance process and added that it was not the Board’s role to monitor the conduct of a union during a grievance process.

To see the full decision, click here.

English (Canada)