Coca Cola Canada Bottling Inc. v Teamsters, Local 213

IN THE MATTER OF AN ARBITRATION PURSUANT TO

THE LABOUR RELATIONS CODE, R.S.B.C. 1996 c. 244

BETWEEN:

COCA COLA CANADA BOTTLING INC.

(the “Employer”)

(the “Union”)

AND:

TEAMSTERS, LOCAL 213

COVID 19 Mandatory Vaccination Policy Grievance

AWARD

ARBITRATOR:

Randall J Noonan

APPEARANCES:

Chris Leenheer, for the Employer

Bryan Savage, for the Union

HEARING DATE:

May 31, 2022

DATE OF AWARD:

July 11, 2022

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I.

INTRODUCTION

1. On October 26, 2021, the Employer instituted a nation-wide “COVID-19 Vaccination

Policy” (the “Policy”). They call it an “evergreen” policy which means that it is subject

to periodic review, in this case at least every three months. Pursuant to that requirement

for periodic review, the Policy was reviewed on March 31, 2022, but no substantial

changes were made.

2. The stated purpose of the Policy is “To maximize COVID-19 vaccination rates among

Coke Canada employees as one of the critical control measures against the hazard of

COVID-19,” pursuant to its commitment to take “every precaution reasonable in the

circumstances for the protection of the health and safety of workers from the hazard of

COVID-19.” The policy states that it is important for employees to be fully vaccinated

to protect themselves and others against serious illness from COVID-19.

3. Under the Policy, the Employer requires proof of fully vaccinated status from all

employees who have not been granted an accommodation. An accommodation can be

requested for employees who are not able to obtain vaccination based on a protected

human rights basis. Proof means documentation verifying receipt of a first and second

dose of a vaccine approved by Health Canada. The Policy requires that employees must

have received one approved vaccine dose by December 1, 2021, and two doses by

January 1, 2022.

4. When the Policy came into effect, 93% of the employees covered by the Policy were

fully vaccinated and another 3% were partially vaccinated. Those numbers covered

both hourly and non-hourly employees.

5. The Policy states that violation of it may lead to discipline, such as suspension without

pay, up to and including termination. There were no terminations or disciplinary

suspensions made pursuant to the Policy at the time of the hearing.

6. The Policy also requires that any new hires must have two vaccination doses before

starting work.

7. The Union objects to the Policy, claiming that it is an unreasonable exercise of

management rights.

8. Each party called one witness to testify.

9. Coca Cola’s Director of Labour Relations for Canada, Jose Alonso, testified for the

Employer. The Union called one employee, Alec Kaloesnichenko. a Quality Control

Technician who has been employed by the Employer for more than 30 years.

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II.

Employer Evidence - Jose Alonso

10. Mr. Alonso testified that the Employer has between 5500 and 6000 employees in

Canada, about one-half of whom are hourly employees. In British Columbia, the hourly

workforce is unionized. This dispute relates to unionized hourly employees in the

Lower Mainland of British Columbia and the collective agreement that covers them.

There are two other collective agreements covering hourly employees in the province –

one for Vancouver Island and the other for the Interior of British Columbia. The term

of the Lower Mainland collective agreement is April 4, 2020, to April 3, 2023. It covers

employees working out of four sites – Coquitlam (about 70 employees), Richmond -

Nelson Road (about 250 employees), Richmond Production (about 100 employees), and

Chilliwack (6-12 employees).

11. The Lower Mainland employees are divided into “outside” and “inside” classifications.

Outside workers are drivers and merchandisers who interact regularly with customers

and merchants. Inside workers are “everybody else.” When the COVID-19 pandemic

emergency was declared in 2020, given the nature of their work, none of the unionized

staff could work from home. They were all required to be at the facilities or in the field.

12. Prior to the vaccination mandate, the Employer undertook other protective measures

against COVID-19. For example, it required employees to be masked, to follow public

health guidelines, to maintain physical distancing, and to limit gatherings by limiting the

number of people that could be in the lunchroom at the same time. The Employer

checked employee temperatures and provided fobs to employees that would alert them

when they were too close to others. These policies were implemented in all the

Employer’s Canadian facilities.

13. Notwithstanding these preventative measures, there were major COVID outbreaks

among workers in a number of the Employer’s facilities. There was a full shutdown of

its facilities in Regina and Lachine. There was a partial shutdown in Brampton. A

major clean-up was required in Kelowna. Most sadly, two employees working in the

Calgary facility died of COVID.

14. Before the Policy came into effect, the Employer took a number of steps to ensure that

all employees were aware of the Policy and its terms. It sent notices to employees’

homes; it held multiple crew talks in each facility; it made sure the Union was fully

aware of the Policy.

15. The Employer kept national and local statistics of the prevalence of COVID in its

workforce. Mr. Alonso produced several charts that tracked the number of COVID

cases on a weekly and monthly basis in each facility across Canada. Without reviewing

those in detail, they showed great fluctuations over time. There were high numbers in

the early months of the pandemic, and there was a great rise in December of 2021 and

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January 2022, when the Omicron variant became prevalent. There was a sharp decrease

in number of cases in February 2022 and a rise again in April 2022, although not as high

as case levels in January.

16. In cross-examination, Mr. Alonso agreed that the number of cases in facilities covered

by the collective agreement had been fairly low and that there was no evidence that the

disease was spreading through the workplace. When directed to the sharp increase in the

number of cases in January 2022 when Omicron hit, he did not know how many of

those infected had been vaccinated and how many had not. He also agreed that any

outbreaks that occurred after January 2022 would have been limited to fully vaccinated

employees as those who had not been vaccinated had been removed from the workplace

by that time.

17. Counsel for the Union suggested to Mr. Alonso that COVID may have spread faster

within the workforce after the enactment of the Policy than before it. Mr. Alonso

agreed that may be so but took issue with any suggestion that the Policy was a cause of

outbreaks. In his words, “Correlation does not mean causation.”

18. Mr. Alonso was asked if all employees, including salaried employees, who did not

provide proof of full vaccination were put on leave of absence. He responded that some

salaried employees who work exclusively from home could be accommodated and were

not put on leave of absence.

19. Mr. Alonso indicated that there have been no exemptions from the policy in relation to

any unionized workers across the country and that there were no human rights

exemptions allowed to date.

20. Mr. Alonso was questioned about employees who work exclusively out of their homes

not being put on leave of absence. He agreed that the Policy did not specify any

exemption for those employees working at home, but he said that anyone who does

come into the head office, or any of the Employer’s facilities, has to be fully vaccinated.

III.

Union Evidence - Alec Kaloesnichenko

21. Mr. Kaloesnichenko was called by the Union. He has a BSc in Microbiology from

U.B.C. and has worked for the Employer since November 1991. He works at the

Richmond Production Plant.

22. Mr. Kaloesnichenko works in a laboratory that normally has two people in it, one at

either end of the 10’ by 40’ room. Part of his job is to physically walk along the

production line and inspect bottling.

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23. Mr. Kaloesnichenko is married with four children and is the sole income earner for the

family. He finds that the pay for his work is good and the job is a good job fit for him.

24. Mr. Kaloesnichenko caught COVID in December 2020. He was not hospitalized but

had a fever that got more severe over a five-day period. His wife and daughter also

became ill from COVID. He said that none of them has been sick since that time.

25. Mr. Kaloesnichenko is not vaccinated. He said that initially, he was scared to be

vaccinated. As the pandemic went on, however, he began to question “what was going

on.” He said, “I understand data. After I got COVID I decided not to get vaccinated

because immunity after you get it is just as strong or stronger.”

26. Mr. Kaloesnichenko pointed out that there have been no 8-year studies on adverse

affects of the vaccine. He said, “Having survived COVID, I didn’t want to take any

chances.”

27. As a result of the Policy, Mr. Kaloesnichenko has been off work since January 28, 2022,

and has had no income since the beginning of April when he ran out of banked and

vacation time. He has had to borrow money and will consider selling his house and

moving if the Union is not successful in this grievance. He says that he will not get

vaccinated even if the Union is not successful.

28. Mr. Kaloesnichenko was cross-examined in relation to the data on which he relied. He

was asked if he disagreed with the Provincial Health Officer, Dr. Bonnie Henry, about

the efficacy and safety of vaccines. He said, “She might have got it right initially, but

Bill Gates has stated numerous times that the vaccine is not effective.” He was then

specifically asked if he was disregarding Dr. Henry’s advice in favour of what he had

read on the internet about Bill Gates. He responded that Bill Gates is the “smartest

guy.”

IV.

The Union’s Argument

29. The Union states that the issue is whether the Employer can force its employees to

undergo an invasive medical procedure in order to continue working.

30. The Union argues that although the Policy is national, my jurisdiction is limited to

determining if the Policy is appropriate in this particular bargaining unit, that is, in

relation to those employees covered by the Lower Mainland collective agreement.

31. In relation to the Lower Mainland, the Union submits that the Policy did not consider

local bargaining unit circumstances in which infection rates were lower than in some

other locations.

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32. The Union submits that the test for determining the validity of the Policy is a balance of

interest test. As it is a forced medical procedure, it must fail unless it is clear that the

benefits of the Policy outweigh the “gross invasion.”

33. The Union states that there were very few infections in the Richmond and Coquitlam

facilities prior to a spike in the numbers in January 2022. It points out that the

Employer does not know how many of the infections in January were among vaccinated

as opposed to unvaccinated employees. It submits that after January 2022, when all the

unvaccinated employees had been removed from the workplace, COVID continued to

spread. That, argues the Union, is evidence of the failure of the Policy to accomplish its

primary objective, the prevention of the spread of COVID.

34. The Union argues that even if the vaccination policy was effective at some point, it

should now be lifted as there is no longer a vaccine card required to attend public events

and we are now “just supposed to live with it.” It says that masks are now optional, and

the Employer has given up on other mitigation policies.

35. The Union points to an article in the New England Journal of Medicine that appears to

show that vaccination might be good at stopping serious illness as a result of COVID,

but not at stopping the spread.

36. The Union says that statistics indicate that Coca Cola employees have a greater chance

of getting COVID from outside of work contacts than from work contacts because the

vaccination rate at Coca Cola is about 97% as opposed to 93% among the general

public. It adds that removing unvaccinated workers from the workplace does not

prevent contact with unvaccinated people in the general public.

37. The Union argues that it is fundamental to society that individuals have the right to

choose how to deal with their own bodily integrity issues and that the Policy violates

that right.

38. The Union submits that the test for the appropriateness of an employer policy is set out

in Re Lumber and Sawmill Workers’ Union and K.V.P. Co. Ltd., [1965] O.L.A.A. No. 2,

(“KVP”) at para. 34:

A rule unilaterally introduced by the company, and not subsequently agreed

to by the union, must satisfy the following requisites:

[1] It must not be inconsistent with the collective agreement.

[2] It must not be unreasonable.

[3] It must be clear and unequivocal.

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[4] It must be brought to the attention of the employee affected before the

company can act on it.

[5] The employee concerned must have been notified that a breach of such

rule could result in his discharge if the rule is used as a foundation for

discharge.

[6] Such rule should have been consistently enforced by the company from

the time it was introduced.

39. The Union argues that the Policy offends the second and sixth parts of the KVP test in

that it is unreasonable and has not been consistently enforced. The Union claims that the

unreasonableness of the Policy relates to the points set out above. The lack of

consistent enforcement relates to the evidence that the policy was not applied to those

(not in the bargaining unit) who worked exclusively from home.

40. The Union says that the Supreme Court of Canada decision in Communications, Energy

and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper Ltd., [2013]

S.C.J. No. 34 (“Irving”) provides the proper framework for analyzing cases of this type.

Irving was, of course, not a COVID-19 case. Rather, it dealt with an employer policy

that set out that a given percentage of its workforce would face random drug testing

every year. The employer in that case tried to justify the policy because of the

dangerousness of the workplace. In particular, the Union submits that paragraphs 4, 5,

and 6 of the majority decision are key:

4 A substantial body of arbitral jurisprudence has developed around the

unilateral exercise of management rights in a safety context, resulting in a

carefully calibrated "balancing of interests" proportionality approach.

Under it, and built around the hallmark collective bargaining tenet that an

employee can only be disciplined for reasonable cause, an employer can

impose a rule with disciplinary consequences only if the need for the rule

outweighs the harmful impact on employees' privacy rights. The

dangerousness of a workplace is clearly relevant, but this does not shut

down the inquiry, it begins the proportionality exercise.

5 This approach has resulted in a consistent arbitral jurisprudence

whereby arbitrators have found that when a workplace is dangerous, an

employer can test an individual employee if there is reasonable cause to

believe that the employee was impaired while on duty, was involved in a

workplace accident or incident, or was returning to work after treatment

for substance abuse. In the latter circumstance, the employee may be

subject to a random drug or alcohol testing regime on terms negotiated

with the union.

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6 But a unilaterally imposed policy of mandatory, random and

unannounced testing for all employees in a dangerous workplace has been

overwhelmingly rejected by arbitrators as an unjustified affront to the

dignity and privacy of employees unless there is reasonable cause, such as

a general problem of substance abuse in the workplace. This body of

arbitral jurisprudence is of course not binding on this Court, but it is

nevertheless a valuable benchmark against which to assess the arbitration

board's decision in this case.

41. The Union submits that the Court in Irving recognized the fundamental importance of

an employee’s right to privacy. At paragraph 14, it quoted from the decision of the

original arbitration panel in [2009] N.B.L.A.A. No. 28 (Q.L.):

14 The absence of evidence of any real risk related to alcohol led a

majority of the board to conclude that there was little benefit to the

employer in maintaining the random testing policy. Weighing the

employer's interest in random alcohol testing as a workplace safety

measure against the harm to the privacy interests of employees, the board

therefore allowed the grievance and concluded that the random testing

policy was unjustified:

The question is now one of proportionality. What needs to be

measured are the benefits that will accrue to the employer through

the application of the random alcohol testing policy against the

harm that will be done to the employee's right to privacy. If the

random alcohol testing policy is to be justified, these must be in

proportion. Here the employer's scheme gets into heavier weather.

In a word, on the evidence I heard, I do not conclude that any

significant degree of incremental safety risk attributable to

employee alcohol use has been demonstrated to exist in this

workplace. Taken with the low testing percentages, I believe it is

likely that the employer's policy will seldom, if ever, identify any

employee with a blood alcohol concentration over the 0.04%

Policy cut-off limit. I therefore see little or no concrete advantage

to the employer to be gained through the random alcohol testing

policy.

On the other side of the balance scale, I have to consider the

employee's right to privacy. Rights to privacy and to the related

right of security of the person are important and prized incidents

of Canadian citizenship. Reactions to invasions of them tend to be

prompt, visceral, instinctive and uniformly negative. When the

testing is random - that is, without articulable cause - as it is here,

an already high bar is raised even higher. This considerably

increases the burden of justification on the employer.

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The invasion of that privacy by the random alcohol testing policy

is not a trifle. It effects a significant inroad. Specifically, it involves

a bodily intrusion and the surrender of bodily substances. It

involves coercion and restriction on movement. Upon pain of

significant punishment, the employee must go promptly to the

breathalyzer station and must co-operate in the provision of breath

samples. As we saw with Mr. Day, there can be an element of

public embarrassment. Taking its results together, the scheme

effects a loss of liberty and personal autonomy. These are at the

heart of the right to privacy.

On the evidence, the gains likely to result to the employer from

random alcohol testing rule run from uncertain to exist at all to

minimal at best. The inroads into employee privacy are significant

and out of proportion to any benefit, actual or reasonably to be

expected to be had by the employer and disclosed by the evidence.

The employer has not been able to tilt the balance in its favour and

therefore justify the imposition of random alcohol testing as a

proportionate response to a demonstrated incremental risk caused

by the attendance of employees at work with alcohol in their

bodies. I therefore find that the random alcohol testing provisions

of the Policy do not meet the KVP reasonableness test, and for that

reason are unenforceable. That portion of the Policy therefore must

be, and hereby is set aside. [Emphasis added; A.R., vol. IV, at pp.

71-73.]

42. The Union cites Teamsters Local Union No. 213 v. Linde Canada Ltd. (Driver Periodic

Medical Assessment Program Grievance), [2015] B.C.C.A.A.A. No. 106 (Dorsey), for

the proposition that an employee does not give up civil rights upon becoming an

employee. That case dealt with an employer requirement that all employee drivers be

subject to random (from a timing perspective) medical assessments. The collective

agreement contained a provision that allowed the employer to request medical

examinations and a duty on employees to comply with such requests. However, the

arbitrator held that such requests could not be made randomly and that an employer

must have some reasonable grounds to request that an employee undergo a medical

examination.

43. I agree with the Union’s proposition that one does not forfeit civil rights upon becoming

an employee. However, beyond that general proposition, I find that Linde Canada Ltd.

is not of much assistance in determining the issues in this case. It dealt with the

interpretation of a specific collective agreement clause and found that the clause

allowed the employer a broad right to request medical examinations but not as broad as

the employer contended. It did not deal with an outbreak of a disease in the workplace

or in society generally.

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44. The Union relies upon Teal-Jones Group v. United Steel, Paper and Forestry, Rubber,

Manufacturing, Energy, Allied Industrial and Service Workers’ International Union,

United Steelworkers, Local 1-1937 (Fothergill Grievance), [2021] B.C.C.A.A.A. No.

138 (Gregory) at paras. 69 and 70, as support for its position that, when considering the

reasonableness of an employer policy, the particular circumstances of the workplace

must be considered:

69 Turning to the broad context, an employer is entitled or, arguably,

required, to review and analyze the PH Orders or WorksafeBC directives

in combination with other expert-based information with a view to

adapting and applying the knowledge and thresholds within its own

context.

70 Through this fulsome analysis, an employer can develop a policy

tailored to its own sector and operations that best protects its own workers.

Crafting that policy requires a balancing of health and safety factors

including considerations that permit the employee to remain in the

workplace [CKF, supra]. The employer's role is more challenging in the

current circumstances where knowledge about COVID-19 symptoms,

diagnosis and transmission continues to evolve and therefore, in some

situations, it may be reasonable to adopt a more precautionary approach

[Cloverdale Paint, supra]. However, a policy that follows a precautionary

road must still meet the balance of an employer's legal obligations.

45. Teal-Jones did deal with a COVID-19 related employer policy although not with

vaccination. The issue was whether an employer policy justified the employer decision

to send an asymptomatic employee home when the employee advised that his father,

with whom he lived, was symptomatic. Arbitrator Gregory found that the policy relied

upon by the employer failed the KVP test on two grounds: it was ambiguous in that it

was not clear that an employee should be sent home in those circumstances; and that it

did not consider options that would mitigate the effect on the employee, such as having

the grievor continue to work, but with increased distancing, or removing the Grievor

from the workplace but doing so without loss of pay.

46. While I do not disagree with the arbitrator’s decision in Teal-Jones, I find that it is of

little assistance in relation to a vaccination policy that applies to all workers in a

workplace and to which some of the employees refuse to comply. The issue of

ambiguity, which was key to that decision, does not apply in this case. Here, there is no

suggestion that the policy is not clear. Secondly, Arbitrator Gregory noted specifically

that the grievance was allowed not because the employer failed to implement options

that would mitigate the effect on the employee, but rather that the employer did not

consider whether such options were viable. No such alternative work suggestions were

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made in the instant case nor was there any suggestion by the Union that they should

have been.

47. The final authority relied upon by the Union is St. Peter’s Health System v. Canadian

Union of Public Employees, Local 778 (Flu Vaccination Grievance), [2002] O.L.A.A.

No. 164 (Charney). In that case, the arbitration panel struck down an employer’s policy

that required staff in a geriatric care facility to be vaccinated when two or more patients

came down with flu.

48. St. Peter’s Health System has not been followed in COVID vaccination cases and was

distinguished in at least one earlier influenza immunization decision. In Interior Health

Authority v. B.C.N.U., [2006] B.C.C.A.A.A. No. 167, Arbitrator Burke (as she then

was) discussed St. Peter’s Health System, at paras. 62-64:

62. In considering the question before me I note the majority of

jurisprudence cited to me does not favour the Union’s position. In only

one case is a similar policy found to offend the Collective Agreement. That

case is St. Peter's Health System, supra, relied upon by the Union. The

arbitrator in that case took quite a different approach. The arbitrator

approached the matter as a question of assault and battery and forced

medical treatment. He did not assess the reasonableness of the policy on

the basis of the KVP line of cases. Rather, he dealt with the matter on the

basis of Charter of Rights principles. In commencing his analysis, the

arbitrator said:

In all of the cases cited by the employer, arbitrators balanced

the rights as to whether the rule was reasonable or not

reasonable. These cases are not comparable to mandatory

medical treatment. Here, of course, we are faced with a different

proposition, namely that the allegation is not whether the rule is

reasonable or unreasonable but whether one can commit what

the Supreme Court of Canada has said is an assault and forced

medical treatment on people that do not give consent.

49. In short, the analysis in St. Peter’s Health System rejected the KVP reasonableness test

and instead dealt with the issue of mandatory immunization as a matter of assault and

determined the issue based on s. 7 of the Canadian Charter of Rights and Freedoms. I

need not comment on whether the decision in that case correctly applied s.7. The Union

did not raise the Charter in this case, and I find the assault analysis in St. Peter’s Health

System to be unhelpful.

50. The Union also relies on an article published in the New England Journal of Medicine,

the same article it had relied on in an earlier case (about which more will be said later),

that it says demonstrates that vaccination has a reduced rate of effectiveness in

preventing the spread of the Omicron variant than it did against the earlier Delta variant.

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V.

The Employer’s Argument

51. The Employer submits that the Policy does not offend any of the tests set out in KVP

and that its enactment is a reasonable exercise of management rights. It says that the

Policy reflects a proper balancing of the Employer’s interests and the rights of the

employees covered by it. It points out that part of the Policy is an automatic periodic

review to ensure that the Policy can be adapted to changing circumstances.

52. The Employer argues that the Policy is consistent with its interest in ensuring the health

and safety of all its workers and its concomitant duty to do so under the Workers

Compensation Act, R.S.B.C. 2019, c. 1.

53. The Employer points out that it repeatedly notified its employees through various

methods about the substance of the Policy and the potential consequences for breaching

it.

54. The Employer states that it is indisputable that COVID-19 is a serious, even fatal

disease and that vaccination provides a measure of protection for employees in reducing

the severity of the disease and the risk of transmission both to the vaccinated employee

and to others with whom they come into contact. It points to the statement of the

Provincial Health Officer that vaccination is, “the single most important preventative

measure a member of a community can take to protect themselves and other members of

the community from infection, severe illness and possible death from COVID-19.”

55. The Employer submits that the evidence shows that all of the employees in the

bargaining unit are required to attend the workplace to perform their duties. Drivers

interact with customers and warehouse dock workers, merchandisers attend at

customer’s locations to set up display and stock shelves and are in close contact with

customers, their employees, and members of the public. In short, this is not a case in

which some of the affected employees could work from home or otherwise not interact

with other employees or members of the public.

56. The Employer placed before me several provincially and federally issued documents

setting out government responses, orders, and recommendations made to the public-at-

large and to employers. It says that it is clear that all levels of government have,

without exception, informed the public that vaccination is the best defense against

COVID-19 and severity of illness from that disease. The Employer quoted from the

January 17, 2022, order of the Provincial Health Officer:

Unvaccinated people are at a significantly greater risk than vaccinated

people of being infected with SARS-CoV-2, and those who are infected,

experience significantly higher rates of hospitalization, ICU-level care and

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invasive mechanical ventilation, complications and death when compared

to vaccinated people. Unvaccinated people are also at higher risk of

transmitting SARS CoV-2 to other people, including vaccinated people;

…

Absent vaccination, British Columbia would be in a far more challenging

situation than the fragile balance our current immunization rates have

provided, but the transmissibility of the Delta and now the Omicron

variant means that higher vaccination rates than previously expected are

now required to maintain this balance, control transmission, reduce case

numbers and serious outcomes, and reduce the burden on the healthcare

system, particularly hospital and intensive care admissions;

The recent appearance of the Omicron variant, which is leading to

significant surges in infection in other provinces and other parts of the

world in addition to British Columbia, underlines the importance of

vaccination in protecting the population and in removing conditions which

foster the development of variants which pose greater threats to public

Health;

…

Vaccination is the single most important preventative measure a member

of a community can take to protect themselves and other members of the

community, from infection, severe illness and possible death from

COVID-19.

57. The Employer submits that the current arbitral consensus is that COVID vaccination

policies will be assessed for reasonableness in accordance with the principles set out in

KVP. It claims that the majority of cases have found that an employer may “err on the

side of caution” and that mandatory vaccination policies are reasonable.

58. The Employer submits that it has an obligation under the Workers Compensation Act to

ensure the health and safety of all its employees and any other workers present at the

workplace. The Employer cited two cases that recognized this legal obligation as a

foundational starting point in concluding that mandatory COVID-19 vaccination

policies were reasonable: CKF Inc. and Teamsters, Local 213 (COVID Testing), 2022

CarswellBC 198 (Saunders) (hereafter referred to as “CKF #1”), and CKF Inc. and

Teamsters, Local 213 (COVID Policy Grievance), (unreported) (Matacheskie) (May 25,

2022) (“CKF #2”).

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59. The Employer submits that, on top of its duties to ensure a healthy and safe workplace,

it has a legitimate interest in vaccination policies to prevent unnecessary absenteeism

which has been recognized in several awards (CKF #1, CKF #2, and Power Workers’

Union v. Elexicon Energy Inc. (COVID-19 Vaccination Policy Grievance), [2022]

O.L.A.A. No. 48 (Mitchell) (“Elexicon”)).

60. The Employer also relies upon Unifor Local 973 and Coca Cola Canada Bottling

Limited (Brampton Vaccination Policy Grievance), [2022] O.L.A.A. No. 89 (Wright)

(“Brampton”), in which the very policy at issue in this case was found to be reasonable

as it applied to employees of the Employer in Brampton, Ontario. It submits that the

Brampton case is one of several that have specifically accepted that COVID vaccines

are safe and effective in reducing the spread of COVID and greater protection from

serious illness. At para. 27, Arbitrator Wright said:

…The general context is known to everyone. The Policy is a response to

a global health pandemic that has so far claimed 6 million lives worldwide.

It makes mandatory the use of vaccines that have proven to be safe and

effective at combatting not only the transmission of the virus, but also at

providing significantly greater protection from serious illness,

hospitalization, and death for those individuals who are fully vaccinated.

61. Although the Union did not specifically address the point, the Employer argues that its

vaccination policy is not unreasonable because it contemplates termination for failure to

vaccinate. It says that the only time that termination may render a vaccination policy

unreasonable is when it is an automatic result of the failure to vaccinate (Chartwell

Housing REIT (The Westmount, The Wynfield, the Woodhaven, and the Waterford) v.

Healthcare, Office and Professional Employees Union, Local 2220, (unreported)

(Misra) (February 27, 2022) (“Chartwell”).

62. The Employer submits that its mandatory vaccination policy does not compel

vaccination. Rather, it says it is a choice: be vaccinated or be subject to the

consequences of the Employer’s vaccination policy. It refers to the comments of the

court in Amalgamated Transit Union, Local 113 v. Toronto Transit Commission, [2021]

O.J. No. 6531 (Ont. Superior Court of Justice), at paras. 52 and 90:

52 Because I have concluded that the harm in this case is not the alleged

violations of informed consent, bodily autonomy or the reasonable

probability of personal injury from being coerced into becoming

vaccinated, the expert evidence proposed by the parties with respect to the

safety of vaccines is not relevant, and I need not address it, nor consider

whether the experts ought to be qualified. No one is forced to get

vaccinated.

15

90 ATU contrasts this with the harm to its affected members. As

explained above, I do not characterize the harm to the bargaining unit

members as being forced to be vaccinated. They are not being forced to do

anything but choose between two alternatives when they do not like either.

Rather, the harm is foregoing income if they choose to remain

unvaccinated which, for the reasons earlier given, is reparable harm.

63. As well as the cases cited above, the Employer relies upon BC Hydro and Power

Authority and International Brotherhood of Electrical Workers, Local 258, [2022]

B.C.C.A.A.A. No. 26 (Somjen) (“BC Hydro”); Health Employers’ Assn. of British

Columbia v. British Columbia Nurses’ Union, [2006] B.C.C.A.A.A. No. 167 (Burke);

Hydro One Inc. and Power Workers Union (O’Reilly Grievance) (unreported) (Stout)

(November 25, 2021); Teamsters Local Union 847 v. Maple Leaf Sports and

Entertainment (Wideman Grievance), [2022] O.L.A.A. No. 8 (Jesin); Maple Leaf Foods

Inc., Brantford Facility and United Food and Commercial Workers Canada, Local 175

(COVID-19 Vaccination Policy Grievances), 2022 28285 (Chauvin); Electrical

Safety Authority and Power Workers’ Union, 2022 343 (Stout) (“ESA”).

VI.

Analysis

64. The Employer’s mandatory COVID-19 vaccination policy is a unilaterally adopted and

imposed rule applicable to all members of the bargaining unit (as well as others). There

is nothing in the collective agreement that either condones or prohibits it. The lack of a

contractual prohibition does not mean that the Employer is entitled to enact any policy it

sees fit. Rather, in these circumstances, it is a well-understood principle that for such a

policy to be valid, it must meet the tests set out in KVP. That principle and the tests of

KVP have been approved and adopted by the Supreme Court of Canada in Irving.

65. There is no need for me to analyze the Policy in relation to every test set out in KVP,

because the Union does not dispute that the tests are met except in relation to two of

them. It argues that the Policy must fail because it has not been consistently enforced

by the Employer since its introduction, and because it is unreasonable.

66. The Union’s argument regarding consistent enforcement relates to the evidence that

some non-bargaining unit employees (from unspecified locations) were not required to

be vaccinated when all their work was from home, notwithstanding that a provision of

the Policy is that it applies to “all employees.”

67. I do not accept the Union’s argument on this point. The evidence was clear that the

Policy applied to any employee who came into the Employer’s head office or any other

facility across the country. That level of enforcement is entirely consistent with the

purposes of the policy. Indeed, if the Policy were applied to a worker who never left

16

their home in performing their work, it may well be found to be unreasonable on that

basis. In ESA, Arbitrator Stout found the employer’s mandatory vaccination policy to be

unreasonable largely because the employees to whom it applied could work remotely

and not interact with other employees.

68. Similarly, in Elexicon, Arbitrator Mitchell found that the employer’s mandatory

vaccination policy was reasonable except in certain circumstances - it would be

unreasonable to apply the policy to customer service representatives working from

home or to those who worked entirely outside. For clarity, the arbitrator said that the

policy must apply to any employees who work inside, even for some of the time.

69. The undisputed evidence in this case is that the employees in the bargaining unit, given

the nature of the work they do, cannot perform that work from home or remotely. The

Policy has been consistently applied to them (and to all other employees of the

Employer who do not work from home). The fact that the Employer has not applied the

policy to those who work entirely from home cannot and does not diminish the

reasonableness of the policy or otherwise put it at odds with the KVP requirements.

70. The remaining question, then, is whether the Policy is unreasonable as that term is

understood in KVP and subsequent jurisprudence.

71. It is obvious that a unilateral employer policy would be unreasonable if in its purpose or

application it was arbitrary, discriminatory, or done in bad faith. There is no suggestion

in this case that any of those factors were present.

72. As set out by the Supreme Court of Canada in Irving, a careful balancing of interests

must be conducted to determine whether such a policy is unreasonable. The Court

stated at paragraph 4, “an employer can impose a rule with disciplinary consequences

only if the need for the rule outweighs the harmful impact on employees' privacy

rights.”

73. There is now a body of COVID-19 mandatory vaccination policy arbitral jurisprudence

that has focused on the balancing of interests question. The majority of the cases that

were referred to me have found the policies to be reasonable and determined that the

need for such a policy outweighs the harmful impact on those employees who choose

not to be vaccinated.

74. In my view, earlier non-COVID cases that dealt with similar issues, such as random

drug and alcohol testing, are of limited assistance in determining the reasonableness of

COVID-19 mandatory vaccination policies. For example, in random drug and alcohol

cases, such as Irving, there is a requirement that an employer must, as first steps, show

that there is a dangerous work environment and that there is evidence of a drug or

alcohol problem in the workplace. That is in keeping with what the court said in Irving

17

and what Arbitrator Laskin (as he then was) said in Re United Steelworkers, Local 4487

& John Inglis Co. Ltd. (1957), 7 L.A.C. 240 at page 247. An employer is not permitted

to “promulgate unreasonable rules and then punish employees who infringe them.” In

short, if there is not a significant problem, then the employer cannot promulgate a policy

that significantly intrudes on employee privacy rights just to punish employees who

infringe the policy.

75. The reason that those cases are of limited assistance is that with COVID-19, it has been

amply demonstrated that, unchecked, the virus can spread quickly through workplaces

and through the community-at-large, with devastating consequences both to employee

health and safety and to the ability of an employer to continue to operate. Because of

that, the very nature of anti-COVID policies is precautionary, that is, not as a reaction to

a problem in a particular workplace after it has arisen, but rather to prevent it arising in

the first place and reduce the risks of contamination and serious illness as a result of

contracting the disease. In short, the reasonableness of such policies must, in my view,

be analyzed not through the lens of the random drug and alcohol testing cases in which

the policies are a reaction to a demonstrable problem that has arisen in the workplace,

but rather as policies designed to prevent or reduce the consequences of the problem

before it takes hold in the workplace.

76. Neither party in this case, nor any party in any other COVID-19 case I have reviewed,

has argued that attempting to check the spread or seriousness of the virus is not a

legitimate employer policy goal. Rather, the arguments about the reasonableness of

such policies have focused on whether the policies enacted overreach by going beyond

what is necessary to achieve the goal of checking COVID-19, or, as argued by the

Union in this case, that the Policy is ineffective in achieving the goal.

77. Some of the cases referred to me by the parties have found that COVID-19 mandatory

vaccination cases are unreasonable either in whole or in part.

78. ESA is an early COVID-19 vaccination decision. It was released on November 11, 2021

(followed by expanded reasons in January 2022). In that case, Arbitrator Stout found

that the employer’s policy, as a whole, was unreasonable although he found that it was

not unreasonable to require employees to confirm their vaccination status. There were

several important features of the award. The first was that the arbitrator noted that the

decision was based on the COVID conditions as they existed at that time. He stated that

his finding of unreasonableness could change “as the situation unfolds in the coming

weeks and months.” Key to the decision that the policy was unreasonable was that the

vast majority of the work undertaken by the employees since the beginning of the

pandemic had been undertaken remotely and that many of the employees had a

collective agreement right to continue to work remotely. Neither of those things is true

in relation to the employees in this dispute.

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79. In Elexicon, Arbitrator Mitchell distinguished ESA, partly on the basis that the situation

had indeed changed subsequent to the ESA decision. At para. 86, he said:

86. The hearing in that decision and the initial award itself issued in

November 2021, if not the final award which issued in early January 2022,

preceded the emergence and the rapid spread of Omicron in the province.

The parties and the Arbitrator did not consider the new circumstances

created by the Omicron virus, and instead, the case was impacted by the

specific facts there including the fact that testing at that time was found to

constitute a reasonable alternative, that there had been no outbreaks, and

there was no explanation as to why a working voluntary vaccination and

compulsory testing mandate could no longer continue to work. In my

view, the case is not as relevant on the facts as it might otherwise have

been had the new circumstances surrounding the dramatic arrival and fast

spread of Omicron not occurred since that decision was issued.

80. The Arbitrator in Elexicon ultimately found that the mandatory vaccination policy in

that case was reasonable. He rejected the union’s arguments that there were less

intrusive measures that the employer could have taken:

98. In my view, this Employer is justified in introducing the compulsory

vaccination rule because it has a duty to take every reasonable precaution

in the circumstances under Section 25(2)(h) of OHSA. The Union strongly

resists this conclusion and argues that there is no scientific evidence that

vaccination, in addition to masks, physical distancing, and other measures

will make any difference to health and safety in the workplace. It says

there is nothing before me that shows that if masking protocols, social

distancing, and working from home together with other appropriate

hygiene practices and protocols are properly enforced, the unvaccinated

present any greater risk to others than the vaccinated. It says the vaccinated

clearly can get and transmit the virus as well and likely asymptomatic

people transmit it more than they did previously.

99. While there may be no scientific study showing that masking,

distancing, and other measures are not as effective as vaccination, or no

study that shows vaccination adds significantly to the protection those

measures alone bring, in my view, the Union's argument does not take

account of the fact that it has been shown that vaccinated individuals can

reduce their risk of acquiring COVID-19 infection by 60% compared to

those who are unvaccinated. The protection is greater for people with two

doses in respect of the other variants, some of which may still circulate,

and the effectiveness of the vaccine with more than two doses to reduce

severe disease is even greater.

19

81. In Chartwell, Arbitrator Misra found the employer’s mandatory vaccination policy was

unreasonable to the extent that it stated that employees who were non-compliant with

the policy could have their employment terminated as opposed to just being put on

unpaid administrative leave. In other words, the placing of employees on unpaid

administrative leave was not offensive, but the alternative of termination was. Because

of the termination provision, she upheld the grievance. In doing so, however, she went

on to say that her decision did not mean that employees would be immune from

discipline in some circumstances of non-compliance with the policy. At para. 243, she

stated:

243 Despite my findings above, it is important to state that this decision

should not be taken by those employees who choose not to get fully

vaccinated as indicating that the Employer would never be able to

terminate their employment for noncompliance with the policy in

question, or indeed any reasonable policy. It is only the automatic

application of this policy as it respects discharge that has been found to be

unreasonable. Employees must understand that even if their Union and the

Employer are unable to reach agreement pursuant to Art. 18.5, the

Employer continues to have its Management Right under the collective

agreement to terminate an employee for just cause. Hence, employees who

remain non-compliant with the policy should not think that they are

protected forever from the possibility of being dismissed, as the Employer

may at some point do so if it feels it can establish that it has just cause for

termination of any particular employee. No employer has to leave a non-

compliant employee on a leave of absence indefinitely. At some point, and

subject to the Employer warning employees of the possibility of

termination, and having considered other factors, it will likely have just

cause to terminate the employment of such an employee.

82. Arbitrator Somjen made a similar finding in BC Hydro but dealt with it differently. He

found that the employer’s mandatory vaccination policy was reasonable except for one

sentence that included discipline (as opposed to unpaid administrative leave) for

declining vaccination. He upheld the policy but ordered that the offending sentence be

removed from it. Like Arbitrator Misra, he did not discount the possibility that at some

point the employer could dismiss an employee for non-compliance subject to the normal

just and reasonable cause provisions of the collective agreement.

83. The two cases that I find most helpful in determining the outcome of this case are the

Coca Cola Brampton case and CKF #2, both referred to earlier. The Brampton case is

significant because it deals with the same policy of the same employer. The policy was

found to be reasonable in that case.

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84. Brampton dealt with the same set of facts as in this case in relation to when the Policy

was enacted and when and how the employees were made aware of the Policy and its

consequences. It appears that the Employer used the same form of letters to employees

in Brampton as in the Lower Mainland and also used crew talks there on a regular basis.

85. Arbitrator Wright had most of the same statistics on the number of the Employer’s

COVID cases throughout the country presented to him as were presented to me,

although the statistics in the instant case were updated from March 9, 2022 (when

Arbitrator Wright heard the Brampton case) to May 2022. The evidence of the death of

two employees from the Calgary facility was also before him.

86. Arbitrator Wright explained the basis of the grievance before him at para. 22:

22 The Union challenges the reasonableness of the Policy on three

grounds. First, it argues that the Policy is unreasonable because less

intrusive means, such as enhanced PPE and rapid antigen testing, are

sufficient to keep employees safe at work and enable the Company to meet

its statutory obligation under the Occupational Health and Safety Act.

Second, it expresses a concern that an employee's decision to not get

vaccinated is almost always based on a strongly held personal belief, that

may reflect a political perspective or lifestyle choice, because no one gives

up a regular salary for no reason. This, it suggests, should be considered

when judging the reasonableness of the Policy. Third, it argues that the

Policy puts employees in an untenable situation; they must choose

between their livelihood or their bodily integrity/autonomy.

87. Arbitrator Wright found that the Policy struck a reasonable balance between an

employee’s interest in privacy and bodily integrity, and the Employer’s interest in

maintaining the health and safety of the workplace.

88. The union asked Arbitrator Wright to adopt the reasoning of Arbitrator Stout in ESA to

find that less intrusive means than a mandatory vaccination policy would have been

adequate to address the health and safety risks associated with COVID-19. The

arbitrator did not agree and distinguished ESA. He found that, given the fact that the

employees in the case before him could not work remotely, and the number of

infections suffered by Coca Cola’s employees (and indeed the two deaths), the less

intrusive methods approved in ESA would not suffice for the Employer’s Brampton

facility.

89. In relation to the aspect of the Policy that allows for the consequence of termination for

non-compliance with the Policy, the arbitrator distinguished Chartwell on the basis that

termination was “an inevitable consequence” in Chartwell but not in the Coca Cola

policy.

21

90. CKF #2 is instructive in that it was decided on May 25, 2022, just days before I heard

this case. It involved the same local union which made essentially the same arguments,

and the same Union authorities.

91. In that case, Arbitrator Matacheskie dealt with an employer mandatory vaccination

policy that resulted in unvaccinated employees being placed on an unpaid leave of

absence.

92. From a review of her award, it appears that the Union presented the very same

authorities to her as it presented in this case, including the New England Journal of

Medicine article.

93. There were two key factual differences between CKF #2 and the instant case: the

policy in that case did not specify the possibility of termination for failure to comply

with the policy; and the policy was in effect only for a short period of time. When the

CKF #2 hearing took place, the policy had been revoked and the unvaccinated

employees had already been allowed to return to work after they had been off for about

five weeks.

94. Notwithstanding those factual differences, Arbitrator Matacheskie stated the issue to be

essentially the same as it is before me. At para. 63, she stated:

The issue in this case is whether the Employer’s policy requiring the

removal of unvaccinated employees from the workplace to mitigate

against the spread of COVID meets the requirement of reasonableness in

KVP.

95. Furthermore, there is nothing is Arbitrator Matacheskie’s analysis that turns on either of

the factual differences from this case.

96. After reviewing the same authorities, provincial and federal statements and orders, and

the scientific article that was presented by the Union to me, Arbitrator Matacheskie

found that the policy she was considering was reasonable. She did not agree with the

Union’s arguments that vaccination does not provide protection against the Omicron

variant. She accepted the precautionary approach. The final paragraphs of the decision

set out her analysis on this point:

73. I agree with the arbitral authorities that a precautionary approach

makes sense in the circumstances of this unprecedented, global health

disaster. In CKF Inc. at paragraph 119, the arbitrator states:

22

As with any precautionary health and safety measure, it is not

unreasonable for the Employer to “err on the side of caution” in

the face of evolving scientific knowledge and the continued fast-

paced change to risk factors presented to date.

[The CKF Inc. case to which Arbitrator Matacheskie refers in this

paragraph is what I have referred to as CKF #1 in the instant case.]

74. In BC Hydro, at paragraph 54, the arbitrator finds:

I agree with the employer that it should not have to wait until the

negative consequences of COVID-19 are felt before implementing

an appropriate policy to counteract the virus (see Elexicon):

101.What arbitrators should do when faced with the lack of

studies proving a scientific relationship between cause and

effect is addressed by the precautionary principle as stated

above by Justices Campbell and Morgan. When there is no

scientific certainty as to cause and effect, the precautionary

principle applies generally to prevent unnecessary illness

and death. As they said: “The entire point is to take

precautions against the as yet unknown”.

75. In Coca Cola [Brampton], at paragraph 27, the arbitrator states:

There is no question that it is extraordinary for an employer to

enact a workplace rule or policy that impacts an employee's right

to privacy and bodily integrity, but there can be no dispute that the

global COVID-19 pandemic is an extraordinary health challenge.

Not only are employers obliged to ensure that the health and safety

of an employee is always protected, under s 25(2)(h) of the

Occupational Health and Safety Act, employers are statutorily

required to "take every precaution reasonable in the circumstances

for the protection of a worker."

76. Applying this precautionary approach to the balancing exercise during

the uncertainty and seriousness of the COVID pandemic, I conclude that

the Employer was not unreasonable when it decided to implement its

policy removing the unvaccinated from the workplace despite the Chief

Public Health Officer advice that two doses of vaccine may not provide

23

good protection against the Omicron variant. As noted above, the Chief

Public Health Officer statement is vague and continues to highlight that

vaccination remains a top priority. On the other hand, the Order of the

Provincial Health Officer made clear and unambiguous statements

advising that unvaccinated people are at a higher risk of transmitting

COVID, and their continued presence constitutes a health hazard. The

Union argues that the earlier cases decided when Omicron was the

dominant variant made an incorrect inference that vaccination prevented

the spread of COVID: BC Hydro, at paragraph 60, Maple Leaf Foods, at

paragraphs 22 and 23. I do not agree that it was an incorrect inference but,

more importantly, the standard the Employer is held to in its decision-

making process is not correctness. It must be reasonable. In these

circumstances, it is reasonable for the Employer to decide to prefer or rely

on the advice of the provincial government.

…

78. Both parties entered scientific articles from medical journals. The

article relied on by the Employer found that unvaccinated people

disproportionately increase the risk of infection to vaccinated people. The

article relied on by the Union found that vaccine effectiveness was lower

for the Omicron variant. It finds when a period following vaccination of

up to 24 weeks was considered, vaccination offered almost no protective

effect with AstraZeneca and very limited protection with other vaccines

(from 65.5% effectiveness with Pfizer down to 8.8% and from 75.1%

effectiveness with Moderna down to 14.9%). Both articles were published

in April 2022 which is after the Employer made the decisions to remove

and then return the unvaccinated employees to the workplace. The parties

agree the representatives of the Employer making the necessary decisions

during the COVID pandemic are not medical or science experts and must

rely on the information available to them from experts and the

government. These articles were not available at the time the decisions

were made and were not considered by the Employer. Neither party

provided me with any basis for why these articles would be relevant in my

consideration of whether the Employer acted reasonably when it

implemented the policy in the period from January to March 2022. I have

not considered either article.

24

79. In conclusion, I dismiss the Union’s grievance asserting the placement

of the unvaccinated employees on a non-disciplinary unpaid leave of

absence was unreasonable.

97. We are collectively, in my view, at a time of scientific uncertainty, at least from a legal

perspective. In this case neither side produced expert witnesses to testify as to the

efficacy of vaccination or alternatives such as testing. I do not think the matter should

be decided on the basis of scientific articles without the benefit of expert witnesses to

introduce and interpret those articles and be subject to cross-examination. Where there

is no better scientific evidence properly before an employer when a policy is enacted or

before an arbitration panel, the best evidence is the statements and orders made by

proper authorities such as the Provincial Health Officer.

98. At this time, the evidence provided by those statements and orders is that vaccination

remains the primary safeguard against the spread of COVID-19 variants and serious

illness or death to those individuals who contract the disease.

99. The Union’s witness testified that he had done his own research and found that sources

he trusted, such as Bill Gates, did not support the concept that vaccination is an

effective preventative to COVID-19. With no disrespect to that witness or others who

may agree with him, that evidence is of little or no value. There is no doubt that the

internet is a rich source of articles that may range from crackpot to scientifically valid,

views that are supported by facts and others in which “facts” are instantly manufactured.

What is required in a proceeding such as this is that evidence be properly admitted and

tested through the hearing procedure. I do not think it is appropriate to determine, based

on anecdotal evidence, impressions, or arbitral notice that our understanding of COVID-

19 has shifted, that an employer policy that still requires mandatory vaccination never

was or no longer is reasonable.

100. As stated earlier, the two cases I have found to be closest in fact and circumstance are

Brampton and CKF #2. In reviewing those cases, I find no basis to come to different

conclusions than did the arbitrators there. Given the precautionary approach, there is

nothing about the employees or the workplaces in the Lower Mainland that would

suggest that a different result should ensue here than that in Brampton when the same

policy was applied to the Employer’s employees in that location.

101. The same arguments based on the same material were made by the Union to the

arbitrator in CKF#2 without success. I find there is no factual difference between that

case and the instant case that would lead to a different result, and I accept the analysis of

the arbitrator in that case.

102. In relation to the provision of the Policy that relates to the possibility of dismissal for

violation of the Policy, I take a different approach than Arbitrator Misra in Chartwell or

25

that of Arbitrator Somjen in BC Hydro. I do not think that the presence of that provision

invalidates the Policy as a whole. I also do not think it is necessary to strike the

provision while upholding the remainder of the Policy.

103. While I am not ordering the removal of the part of the Policy that provides for potential

dismissal for failure to become vaccinated, I do not suggest that its presence would

automatically lead to or justify a dismissal. If dismissal was the inevitable or automatic

response to a failure to become fully vaccinated, the outcome might be different.

However, as noted in earlier arbitration decisions in relation to COVID-19 vaccination

policies, including Chartwell and BC Hydro, it is possible that a continued refusal to be

vaccinated could, at some point, result in a dismissal (perhaps even non-disciplinary). If

that happens, a grievance could follow, and I expect that the normal rules of just and

reasonable cause would apply. To be clear, this decision does not suggest that because

the possibility of dismissal is included in the Policy, that inclusion would justify

dismissal. It merely acts as a warning that such an outcome, in the right circumstances,

could result.

104. For all of these reasons, I conclude that the Employer’s COVID-19 vaccination policy is

reasonable. The grievance is dismissed.

DATED and effective at New Westminster, British Columbia on July 11, 2022.

RANDALL J. NOONAN

Arbitrator