AH – 22




(the "Company")



(The "Union")




SOLE ARBITRATOR: C. E. Bennett, C.C.J., Chairman

A. Allen Sorovoy, Union Nominee

Michael O’Brien, Company Nominee.


There appeared on behalf of the Company:

J. W. Healy, Esq., Q.C. – Counsel

Ray S. Finegan – Labour Relations Officer,

F. H. Beauchamp – Superintendent, Ontario District

R. B.Steele – Regional Manager,

J. B. Scanlan – Assistant Manager-Plant

K. I. Birt – District Personnel Supervisor and

G. E. Morgan – Labour Relations Assistant.


And on behalf of the Union:

David Lewis – Counsel

Robert Tomlinson – General Chairman



A hearing in this matter was held at Montreal on May 14, 1981.




The grievance protests the appointment of Mr. Douglas MacLean to the job of Senior Plant Chief at the Toronto Test Centre, on April 23rd, 1963, claiming that Mr. H.E. McDaniel, seniority June 1943, was entitled to the job over Mr. McLean, seniority June 1947.

The Toronto Test Centre is the hub of the Company’s operations with the respect to a variety of communication circuits, - direct teletype circuits to private subscribers in industry and in the stock brokerage business, inter-connecting trunking, private wire circuits, circuits from the various stock exchanges, TCA reservations, data centre for railways, airway traffic controls etc. There are 28 Plant Chiefs at the Centre, including three Senior Plant Chiefs ( Days, Telex, and Early Night ) under the Plant Chief in Charge. The Plant Chiefs are technically qualified personnel who repair defective circuits and "trouble shoot" generally with respect to the many lines of communications which enter the Toronto Test Centre. The Senior Plant Chief (Days) (this is the job the grievor is claiming and is referred to often as simply the Senior Plant Chief) has three or four Plant Chiefs under him to whom he assigns the work (trouble tickets) with the object of keeping in repair and operation the various circuits. Approximately one hundred to one hundred and twenty-five trouble tickets are assigned daily by the Senior Plant Chief. These assignments require anywhere from seconds to weeks to complete. Normally there is no serious backlog. There are two Plant Chiefs on days in addition to Mr. MacLean and the grievor who are capable of performing all the technical requirements of the job and of assuming the position of Senior Plant Chief. In addition there are two or three others almost as competent

The Company position is set out in a letter dated April 24th, 1963 (Ex. 5) written by Mr. F.H. Beauchamp, Superintendent, to Mr. McDaniel:

This has reference to our discussion of April 19th concerning the appointment of a Senior Plant Chief at Toronto to succeed Mr. E.A. Dwyer, who is being retired. At that discussion you requested a letter outlining the requirements of the position.

The position of a Senior Plant Chief at Toronto requires a technically qualified Plant Chief who must also have the ability to lead, guide and direct other Plant chiefs in the performance of their duties. Included in a Senior’s duties are those supervisory responsibilities involved in carrying out this type of direction. To satisfactorily meet the requirements of the position, it is essential not only that the appointee be technically qualified but that he be available for duty on a regular basis. With respect to the latter qualification, we have reviewed the amount of time that you have been absent from your present position of Plant Chief the period Jan. 1, 1963, to Apr. 17, 1963, inclusive. According to our time records during this period you were excused for a total of 193 1/2 hours. The reasons shown for your absence indicate 171 1/2 hours account Union business, 14 hours personal account and 8 hours due to illness. The time that you were absent from your position represents 32 percent of the available working hours basis on your regular work week. From these figures we have concluded that you would not be available on a regular basis to carry out the duties and responsibilities required of the Senior Plant Chief, and under the circumstances we are not prepared to appoint you to this position.

The Union made three submissions:

(1) In view of the provisions of the agreement (Articles 8 and 18, set out below,) it is not open to the Company to take into consideration the employee’s absences from work on a promotion if the absences are occasioned by reason of Union activity.

(2) Even if the employee’s absences may be considered, the Company may not speculate as to what they might be, rather, management is obliged to give the employee the opportunity for promotion, and

(3 ) On the evidence itself, it was not reasonable to conclude that the grievor’s absenteeism would have constituted sufficient disruption of the Company’s operations to deprive him of the promotion.

These are the relevant provisions of the collective agreement:


Clause 1

(c) Vacancies in regularly assigned positions, other than that of Routing Aides and Office Boys, temporary vacancies and newly created positions, any of which are known to be of more than fifteen (15) days’ duration, shall be bulletined throughout the district in which they occur not later than five (5) days from date of vacancy occurs or new position is established with the following exceptions:

(2) Plant Chiefs, Automatic Supervisors Morse supervisors in Class ‘A ‘Offices on the Eastern Region, shall be given preference of positions and tricks according to their office seniority as such and the resultant vacancies bulletined.


Clause 1

An employee elected as a representative of the employees covered by this agreement shall be granted leave of absence without pay while so engaged.

Clause 2

If convenient and on request of the General Chairman, an employee will be granted reasonable leave of absence, without pay, for the purpose of attending to the business in connection with this agreement, and will be furnished with transportation to and from any point on the Canadian National Railways.

Clause 3

Committee of employees shall be granted transportation and necessary leave of absence without pay, for investigation, consideration and adjustment of grievances.

The grievor was advised on April 15th, and April 19th, by the Supervisor that while he was technically qualified for the position of Senior Plant Chief and was the most Senior Plant Chief eligible for the position (several Plant Chiefs senior to the grievor were not interested in the job) he was not entitled to the position because on the basis of his record of absences, the Company had reached the conclusion the grievor was not available for duty on a regular full-time basis.

The grievor was absent on Union business during the period January 1st, 1963 when the grievor assumed the duties of the District Chairman of the Union and April 15th, 1963 when it was indicated to him that he could not have the job of Senior Plant Chief, as follows:

Pay Period No. 1 – Jan. 1-14 – 1 day 5-1/2 hours

Pay Period No. 2 – Jan. 15-31 – 8 days (the company claimed 9 but the grievor was in Court 1 day)

Pay Period No. 3 – Feb. 1-14 – 5 days 7 hours

Pay Period No. 4 – Feb. 14-28 – No lost time

Pay Period No. 5 – Mar. 1-14 – 1-1/2 or 8 hours - The grievor disputed 6-1/2 hours as set out by the Company. Another 1-1/2 hours shown on Exhibit 7 was for compassionate reasons.

Pay Period No. 6 – Mar. 15-31 – 1 day 3-1/2 hours

Pay Period No. 7 – April 1-15 – 1-1/2 hours

The grievor was also absent during the same period 8 hours because of illness and 15-3/4 hours on account of compassionate reasons.

The following are the absences of the grievor since April 23rd and the reasons:

April 23rd – 2 hours 35 min. – Union business

April 29th – 2 hours 15 min. – re this arbitration

May – no time lost

June 14 – 1 hour 28 min. – re this arbitration

June 19 – 2 hours 30 min. – re this arbitration

June 15 – 2 1/2 hours – re this arbitration

July 12 – 2 hours – Union business

August – no time lost

September – 2 hours – Union business

During the past few years the grievor relieved certain key personnel as follows:

Aug. - Sept. 1959 Relieved S.J. Shupe in the work of Senior Plant Chief Days for two weeks. The title of Senior Plant Chief-Days, was not established until 1961 but the same work was performed in 1959.

June, 1960 Relieved C.H. Irwin, Senior Plant Chief, Telex for onr month. Mr. Irwin was District Chairman of the Union.

July, 1960 Relieved H.A. Nielson, Senior Plant Chief, Early Nights, for two weeks.

Aug. - Sept. 1960 Relieved E.P. Dwyer, Senior Plant Chief for one month.

January, 1961 Relieved C.H. Irwin, Senior Plant Chief-Telex for two weeks. Mr. Irwin was District Union Chairman and was absent on Union Business.

May 23rd, 1961 – Relieved C.H. Irwin for one week. Mr.Irwin’s absence was not on Union business.

June 26, 1961 – Relieved A.R. Anderson, Senior Plant Chief Early Nights for three weeks

July 17, 1961 Relieved C.H. Irwin, Senior Plant Chief, Early Nights for three weeks.

Sept. 1961 Relieved E.P. dwyer, Senior Plant Chief for six weeks.

Oct. 1961 Relieved C.H. Irwin, Senior Plant Chief, Telex for one week while Mr. Irwin was absent on Union business.

Aug. or Sept. 1962 Relieved E.P. Dwyer, Senior Plant Chief for one week.

November, 1962 Relieved E.P. Dwyer, Senior Plant Chief for one month.

The argument of the Company as indicated was that the Senior Plant Chief must be on the job regularly because without continuity, the replacement would not know the priority and importance of the work assignments and would not have the experience of personal contact with the customers; that a certain confidence is built up in the minds of the Plant Chiefs in the supervision of one senior Plant Chief; that the Senior Plant Chief has knowledge of new circuits, changes in circuits and new equipment; that the Test Centre, the hub of the Company’s communications, must have the kind of supervision which can only be obtained by a highly qualified technician, regularly on the job. Mr. Scanlan, the Assistant Manager of the Plant, testified that in his view efficiency of the test Center would be adversely affected by a Senior Plant Chief absent for more than thirty percent of his time.

Mr. McDaniel’s qualifications, as stated, are not in dispute. The grievor has a long and honourable record with the Company, starting as a messenger boy in 1927 and working up to his present occupation of Plant Chief in 1951. for a number of years, he has been the main relief for the Senior Plant Chief, the Senior Plant Chief Early Nights and Senior Plant Chief-Telex, and undoubtebly he is a highly competent technician. There are no complaints regarding his attitude toward his work and no one suggested that any of his absences from work was not for some valid reason. The Company conceded, apart from his record of absenteeism, that Mr. McDaniel was entitled to the promotion under Article 8.

In Re United Automobile Workers, Local 458 and Massey-Harris Ferguson Ltd., 9 L.A.C. 167, it is stated:

There is no discrimination for union activity if a company puts the demands of a particular job ahead of authorized union activities of an employee who makes claim to the job. To this board principle the instant board would add a qualification connected with seniority entitlement as follows:

Where a collective agreement provides for employee discharge of union functions on company time without excluding such a union functionary from promotion benefits under the agreement, it is not right to say that promotion is automatically foreclosed to such a person. The very prescription of the agreement involves recognition of an agreed-upon privilege of interruption of normal employee duties. Hence, subject to the express terms of the agreement, the issue may turn on reasonable compatibility of the prescribed union function with the duties of a job.

In the instant case, the collective agreement does not provide for employee discharge of union functions on company time but it does provide for the granting of leave of absence without pay without excluding the union functionary from promotion benefits under the agreement. While the Company in its above quoted letter dated April 24th, 1963 to Mr. McDaniel gave as the reason for the denial of the promotion his record of absenteeism generally (including absences because of sickness and for personal reasons) from January 1st to April 17th, the only reasonable inference that can be drawn from this letter in view of all the circumstances was that the Company decided that the duties of District Union Chairman as carried out by the grievor on the basis of his performance January 1st to April 17th were not compatible with the position of Senior Plant Chief. There was no evidence to suggest that the grievor’s record of attendance was unsatisfactory prior to 1963 or that he was likely to continue to be away from work for personal or compassionate reasons. His absences on account of sickness and for personal reasons had never been questioned by Management. Neither did the company argue that from experience prior to 1963 it had found the duties of District union Chairman were time consuming to the extent to be incompatible with the position of Senior Plant Chief.

The issue then is whether Management was justified in reaching the conclusion that the duties of Mr. McDaniel as District Union Chairman, on the basis of the grievor’s record of attendance January 1st to April 15th are not compatible with the job of Senior Plant Chief.

It is our decision that Management was not justified in denying the grievor the promotion for these considerations, namely, that:

The Senior Plant Chief is relieved every day for lunch and for two coffee break intervals: he is also relieved on other occasions for longer periods for sickness, vacation and other reasons. Mr. H.A. Nielson testified he had often relieved the Senior Plant Chief for one-half hour intervals and the grievor had relieved him on a number of occasions for weeks. The Company agreed that at least five Plant Chiefs have relieved the Senior Plant Chief during the last few years on a number of occasions from minutes up to one day. The work of Senior Plant Chief continued to be performed in an efficient manner by the relief because in addition to Mr. MacLean and Mr. McDaniel, there are two other Plant Chiefs capable of performing any technical job of relieving the Senior Plant Chief, in addition to several other Plant Chiefs almost as capable. These experienced Plant Chiefs are familiar with the new types of equipment and the changes in the various circuits.

The District Union Chairman is almost always able to give ample notice to the Plant Chief in Charge of his intention to be absent on Union business so that the replacement in the job of Senior Plant Chief can be properly briefed with the result that there would be no significant loss in continuity.

A great number although not the majority of circuits are on a 24-hour basis and therefore there is always a break in continuity in each 24-hour period at the end of each shift, that is, at the end of the day, early night and late night shifts.

The long experience and technical qualifications of the grievor would enable him to assume the duties of Senior Plant Chief after an absence without any serious or significant effect on the efficiency of the department; this applies equally to his relief.

The absentee record of the grievor with the exception of the two day periods, Numbers 2 and 3, totals 28 hours (this is accepting the grievor’s evidence of 1-1/2 hours instead of the Company’s 8 hours for Pay Period No. 5) out of 560 hours or five percent of the time. The trend indicated in Pay Periods Numbers 4, 5, 6, and 7 should have indicated to Management what in fact did occur from April to September, namely, that the grievor was absent very seldom on Union business. As for the absence in Pay Period 2 and 3, the General Community normally meets only once a year and there is no reason why the Senior Plant Chief could not have been replaced for this period in the same manner as he would be replaced say for his vacation period. Ample notice would be given to the Plant-Chief-In-Charge and the replacement would be adequately briefed. Management must have known that the substantial portion of the grievor’s absences was due to his attendance at the General Committee meeting and that the General Committee normally meets only once a year. The statement in the letter dated April 24, 1963 to the grievor from Management, "The time that you were absent from your position represents 32 percent of the available working hours …" while true was not a fair assessment of the situation.

In assessing the time the grievor was likely to take off during the remainder of the year the Company had the records of the leaves of absence granted to District Union Chairmen during the past ten or more years. While these records showed that the grievor had … [BALANCE OF TEXT MISSING]