Unvaxxed Lepreau workers lose bid to challenge suspensions
Six nuclear power station employees refused to be vaccinated or show proof of it, and an arbitrator found the policy didn't violate their collective agreement
NB Power was justified in placing six workers at its nuclear generating station on unpaid leave for failing to be vaccinated against COVID-19 or show proof of it, an arbitrator ruled last month.
Six employees of the utility’s Point Lepreau Nuclear Generating Station - Sonja Bailey, Blake Tibbets, Lori Burns, Trevor Hanley, Luke Baleman and Kelly Domres - filed grievances in late 2021 after they were suspended from their jobs without pay.
The reason for the suspensions: the provincial government policy requiring all employees, including those at NB Power, to be vaccinated against COVID-19 and to provide records of it.
All six failed to do so.
Arbitrator Michel Doucet heard arguments on the grievances in a virtual hearing in November, and in a decision issued Jan. 11, he dismissed all six grievances, finding the government policy, as adopted by NB Power, was merited, given the seriousness of the pandemic.
Bailey, Tibbets, Burns, Hanley, Baleman and Domres were all suspended without pay on various dates in November and December 2021, and they filed their grievances shortly thereafter.
The province’s mandatory vaccination policy was lifted March 18, 2022, and the affected workers were allowed to return to work. However, Tibbets resigned March 28, and Baleman resigned June 28.
“The core of the grievors’ argument is that the policy enacted by the employer is unreasonable,” Doucet wrote.
“They claim that the policy is based on the supposition that the unvaccinated are ‘infected’ with the virus and are the main vectors of infection at the workplace. However, they argue that this has never been proven.”
But Doucet said it’s been established in other such cases that COVID-19 is a serious public health emergency and that vaccination was an effective method of reducing transmission and/or mitigating the negative health effects.
“Vaccines are generally safe and have a low risk of harmful effects, especially in children,” the arbitrator wrote, citing precedent.
“Vaccines do not prevent infection, reinfection or transmission, but they reduce the severity of symptoms and the risk of bad outcomes.”
Union sided with NB Power
All six of the affected workers are members of the International Brotherhood of Electrical Workers, Local 37, which represents employees at the Point Lepreau station, but the six workers were self-represented at the arbitration hearing.
Doucet noted the union was supportive of the utility’s policy, communicating to members that “vaccination, wearing masks, testing, limiting contacts and other public health measures, because it is the best way to protect our members’ safety.”
The arbitrator said contrary to the grievors’ position, the government policy was applied consistently and it was clear. He also dismissed their argument that the policy violated their Section 7 Charter right to life, liberty and security of the person.
Furthermore, Doucet disregarded material the six employees submitted that took issue with the effectiveness of vaccines, using quotation marks to question them by referring to them as “scientific” articles.
“In this case neither side produced expert witnesses to testify as to the efficacy of vaccination or alternatives to such testing. I do not think the matter should be decided based on ‘scientific’ articles without the benefit of expert witnesses to introduce and interpret those articles and without the expert being subjected to cross-examination,” he wrote.
Doucet noted the best evidence before him were statements and orders made the provincial medical officer of public health and other relevant officials, and that material was presented to him in a statement of facts agreed to by both sides.
Ultimately, he said, NB Power’s adoption of the provincial government vaccination policy was a proper course of action that didn’t violate the terms of the collective agreement.
“There is no question that a precautionary approach is reasonable when dealing with a situation such as the one presented by the COVID-19 pandemic,” the arbitrator wrote.
“While there might not have been many cases of workplace transmission before this policy was put in place, this does not detract from the reasonableness of the policy.”
Don MacPherson can be contacted at ftonindependent@gmail.com.