The issue of union co-operation in an employer’s accommodation of a disabled employee arises time and again. In BC Rail and IWA Canada, Local 1-424 (Lepage Arbitration), [2004] B.C.C.A.A.A. No. 206, this issue is examined in the context of a disabled junior employee and bumping by more senior employees. Do the senior employees get to bump the junior disabled employee, according to the collective agreement, where that position is the only accomodation for that junior employee? Did the employer fail to accommodate the junior disabled employee where the union insisted that the senior employees bump into that position?

Arbitrator Hope took the position that the union and the senior employees had to co-operate with the employer to the point of undue hardship to accommodate the disabled employee:

¶ 40 When the Railway was confronted with an assertion that it could not remove the Grievor’s position from the displacement list process, it was left without a position in which to place him. Its explanation with respect to the unavailability of positions suitable for modification were challenged but not countered by the Union. No position was identified into which the Grievor could have been placed. The availability of positions outside the IWA component of the bargaining unit was addressed by the Railway and its responses supported the conclusion that no position could have been made available. Similarly, the tasks the Union saw as having potential to create a position were also addressed by the Railway and its explanation was consistent with its assertion that no assignment of tasks could be made without a significant compromise of its budgetary and work scheduling requirements.

¶ 50 Absent from the evidence were facts which would support a conclusion that the Railway failed to pursue all opportunities available to meet the needs of the Grievor within the terms contemplated in the authorities. The conclusion invited by the facts is that the refusal of the Union to acknowledge an obligation to cooperate in the fashioning of a position that fell outside the displacement provisions of the collective agreement inhibited the Railway’s ability to accommodate the Grievor.

¶ 51 I note in that regard that neither the facts nor the issues raised invite a finding with respect to whether cooperation by the Union would have resulted in an accommodation of the Grievor. However, the failure to cooperate is a factor to be weighed in the Railway’s favour in its assertion that it had pursued the accommodation of the Grievor’s disability to the point of undue hardship. The measure of inflexibility inherent in the Union’s position restricted the choices available to the Railway.

The union’s insistence that the position at issue remain subject to the collective agreement bumping provisions put the employer in the position of being able to say that it had exhausted its accommodation efforts to the point of undue hardship.