AH – 398

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CANADIAN PACIFIC EXPRESS & TRANSPORT

(the “Company”)

AND

TRANSPORTATION COMMUNICATIONS UNION

(the “Union”)

GRIEVANCE RE A. GASPER – RE DAMAGE TO THIRD PARTY’S PROPERTY

SOLE ARBITRATOR:                Michel G. Picher

There appeared on behalf of the Company:

B. F. Weinert                             - Director, Labour Relations, Toronto

And on behalf of the Union:

John Crabb                                - Vice General Chairman

John Bechtel                             - Vice General Chairman

Jack Boyce                               - General Chairman

Hal Tryhorn                                - Protective Chairman, Lodge 2302

A hearing in this matter was held in Toronto on November 27, 1989.

AWARD

JOINT STATEMENT OF ISSUE:

The Union raised the preliminary objections during the grievance procedure that the Company violated this employee’s rights under Articles 8.1 and 8.2 of the present Collective Agreement.

The Company maintains that they did not violate this employee’s rights and further, that the discipline issued was warranted.

The Union maintains to this date that the employee’s rights were violated and that the rights of other employees were also violated during the Company’s investigation into this matter.

Therefore, the Union had requested that the demerits issued be fully removed from this employee’s work record.

The material establishes that on July 18,1988 Mr. D.J. Doherty, the Company’s Campbell River Terminal Manager was advised that a third party had witnessed an accident on July 15, 1988 involving damage to a gas pump caused by a Company vehicle. On July 25, 1988, the grievor’s first day of work following his annual vacation, he was questioned by the Nanaimo Terminal Manager with respect to his knowledge of the incident. He denied any involvement and suggested the names of two other Company drivers who might have been in the area at the time. As a result of that suggestion employees G. Philips and L. Rose were questioned on July 28, 1988. When it became evident that they were not involved the investigation moved to two other employees who operated as line drivers in the area, Mr. J. Budding and Mr. H. Fowler.

As Budding and Fowler were on vacation until August 15, 1988 the Company did not become aware of their denial of involvement until that time. However, their account to the Company did confirm that they and the grievor and their respective vehicles were all at the gas stop location in question at the time of the accident. On August 9, 1988 the Company finally received a written statement from the third party witness, the content of which gave a clear indication that Mr. Gasper’s vehicle was the one involved in the accident. The Union’s local protective chairman was contacted by the Company on August 16, 1988 concerning this matter and on August 17 the grievor was given notice to appear for an article 8 investigative interview scheduled for August 19,1988.

The sole grounds of the grievance are that article 8.1 and 8.2 of the collective agreement were violated in respect of the treatment of the grievor. Article 8 provides, in part, as follows:

8.1          An employee may only be disciplined or dismissed for just cause.

8.2          Whenever an employee is to be interviewed by the Company with respect to his work or his conduct in accordance with Article 8.1, an accredited Union representative must be in attendance. Such interview must be held within fourteen (14) calendar days from the date the incident became known to the Company, unless otherwise mutually agreed. In the event an accredited representative is not reasonably available, a fellow employee selected by the employee to be interviewed, shall be in attendance. Nothing herein compels an employee to answer any questions.

8.3          Failure to comply with Article 8.2 shall render any conclusion null and void, and any statements at such interview inadmissable at any subsequent proceedings.

The Union submits that upon first being advised of the incident in a letter sent by Mr. Doherty on July 15, i988, the Company should have followed the requirements of article 8 in all of its dealings with the grievor, as well as with the other employees questioned about the accident. That position is based, in part, on the fact that Mr. Doherty’s letter, which originated the inquiry, recites the trailer number and licence plate of the vehicle being driven by Mr. Gasper on the day in question. The Union’s representative argues that there was then sufficient information before the Company to cause it to conduct a disciplinary investigation within the meaning of article 8 of the collective agreement.

With that position the Arbitrator cannot agree. The operation of article 8 cannot, for practical purposes, be triggered unless there is some clear indication that there is a genuine probability of discipline in respect of a given set of facts. The fact that an accident has taken place may, in some circumstances, result in discipline. In other cases it will not, depending on the facts disclosed. It is therefore not improper, nor in the Arbitrator’s view unreasonable, for Company officials to ask an employee what, if any, knowledge he or she may have of an accident when a third party claim of damages is made. While the point at which it becomes obvious that discipline will ensue is difficult to define, there is nothing untoward in the Company soliciting statements from employees, including the individual who may himself be the subject of discipline, prior to deciding that the matter merits a formal investigation within the terms of article 8 of the collective agreement. In CROA 1737 the Arbitrator made the following remarks respecting the operation of this provision:

It is clear to the Arbitrator that Article 8 contemplates that information can, and indeed must, come to the attention of the Company’s officers in some form prior to the formal investigation required by that article. By its own terms, Article 8.1 requires the Company to formulate a charge or charges against an employee prior to giving him notice of a formal investigation. That article also allows the Company to hold an employee out of service in appropriate cases, plainly suggesting that the Company is entitled, if not obligated, to gather some preliminary information before proceeding to the formality of an investigation. Common sense dictates that in many instances the first and best form of preliminary information can be obtained by asking the employee under suspicion for his or her version of what has happened. In a great many cases the employee’s explanation may be fully accepted, thereby avoiding the need for any further inquiry and eliminating the possibility of discipline. The Company might well be chargeable with improper procedure if, in some circumstances, it accepts negative reports about the actions of an employee without obtaining, in the most preliminary way, his or her version of the events in question. To use an example advanced by Counsel for the Company, there is clearly nothing improper in a supervisor asking an employee who arrives at work late the reasons for his or her lateness. Article 8 of the Collective Agreement should not be construed so as to prohibit the normal conversation to be expected between employees and supervisor in circumstances of that kind, notwithstanding that more formal investigatory procedures and the imposition of discipline may ensue. If it were otherwise the conduct of the Company’s day-to-day affairs would be unduly burdened by formalistic procedures that would work unnecessary hardship on supervisors and employees alike. While it is important for arbitrators to give full effect to the procedural protections afforded to employees within their collective agreement; it should not lightly be assumed that the parties intend the employer’s enterprise to be conducted on the model of a courthouse. (See CROA 1575, Industrial, Mechanical and Allied Workers Local 17, (1978) 21 LAC (2d) 127 Weiler .)

I am satisfied that in the instant case the Company did not violate the grievor’s rights by initially asking him, as well as other employees, outside the setting of the formal interview what happened with respect to the accident. If there was a delay in processing this matter it was caused entirely by the grievor’s initial denial of any involvement, which necessitated further inquiries by the Company’s officers. When it became clear to the Company on the basis of information provided by two other employees as well as a third party eyewitness that Mr. Gasper had been involved in the accident at the gas pump, it gave him the appropriate notice and conducted the investigation contemplated under article 8 of the collective agreement prior to assessing, discipline against him. That, in my view, is precisely what the collective agreement contemplates as the practical and fair way of proceeding.

No violation of the collective agreement is disclosed and the grievance must therefore be dismissed.

DATED at Toronto this 6th day of December, 1989.

(signed) MICHEL G. PICHER

ARBITRATOR