A tale of two unions and one position

Member of union bumped member of other union from health care position

An Ontario health care worker was entitled to bump a less senior member of another union to take a position that was part of her own bargaining unit, an arbitrator has ruled.

The Regional Municipality of Niagara’s public health department had a job classification identified as health promoter for which registered nurses could work as well as other employees who were not qualified registered nurses. The health promoter position was part of the collective agreement between Niagara and the Canadian Union of Public Employees (CUPE). However, registered nurses with Niagara had their own bargaining unit under the Ontario Nurses’ Association (ONA).

Before 2001, Niagara allowed registered nurses to compete for health promoter positions. If an ONA member won a job as a health promoter, the member would stay in the ONA. However, in 2001, CUPE asked Niagara to stop this practice, since the job was under its collective agreement.

The two unions reached a settlement with Niagara that allowed ONA members to apply for the position and if successful, they would remain in the ONA and paid under the rates in its collective agreement.

In April 2010, there was one registered nurse, Marian Landry, who held down a health promoter position for Niagara. However, Donna Mills, a CUPE member with more seniority who had been laid off, used her seniority rights to bump Landry out of the health promoter job. Landry then used her rights under the ONA collective agreement to displace another ONA member with less seniority from a nurse position. A chain reaction of bumps ensued, resulting in an ONA member moving from a permanent job to a temporary one.

The ONA filed a grievance arguing its collective agreement and the settlement with CUPE didn’t allow CUPE members to displace any of its members from the health promoter position. It also argued it was unfair for its members to bear the brunt of a layoff in the CUPE bargaining unit, pointing to the chain reaction within its members it caused and the fact its own layoff provisions were only triggered by a reduction in the nurse work force, rather than these circumstances.

The arbitrator found the specific circumstances were not covered in either of the collective agreements nor the settlement. However, the settlement that allowed ONA members in the health promoter position to remain in the ONA bargaining unit did not offer protection against being bumped, said the arbitrator.

The arbitrator found there were only two possible solutions to such circumstances: Either CUPE members could bump any ONA members from the job or only an ONA member could bump an ONA member. Since the position was in the CUPE bargaining unit, the arbitrator found it was “preferable to allow CUPE members to bump ONA members… than allow ONA members to bump into the CUPE bargaining unit.”

The settlement didn’t contemplate an ONA member taking the health promoter position any other way other than applying for a vacancy, said the arbitrator, and expanding this allows ONA members to bump into it would be beyond reasonable contemplation without clear wording. In addition, both Mills and Landry followed their rights under their respective collective agreements without violation or preference of one over the other, said the arbitrator.

The arbitrator dismissed the grievance, finding nothing improper in allowing a CUPE member to bump an ONA member from the position within its own bargaining unit. See Niagara (Regional Municipality) v. O.N.A.)., 2011 CarswellOnt 1367 (Ont. Arb. Bd.).

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