AH – 409

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CP EXPRESS & TRANSPORT

(the “Company”)

AND

TRANSPORTATION COMMUNICATIONS UNION

(the “Union”)

GRIEVANCE RE M. CUDMORE

SOLE ARBITRATOR: Michel G. Picher

There appeared on behalf of the Company:

Brian F. Weinert – Manager, Labour Relations

And on behalf of the Union:

John Bechtel – Vice General Chairman

John Crabb – Vice General Chairman

A hearing in this matter was held in Toronto on February 13, 1989.

AWARD

JOINT STATEMENT OF ISSUE:

This grievance centres around whether the Company attempted to call this employee to work or failed to do so.

The Union maintains that the Company dispatcher did not call this employee to work, and further that the Company dispatch log book is contrived and fictitious with reference to its entries dealing with this employee. The Union maintains that the Company cannot verify nor prove that the entries in the log book are real.

The Company to date has maintained that Company Dispatcher, J. Allnut did attempt to call to work employee, M. Cudmore and, therefore, has declined payment of trip claim.

This case turns on the issue of credibility. The grievor maintains that he was at home and received no call, while the Company asserts that the dispatcher did telephone his residence on more than one occasion and, in one instance, spoke to his roommate. The burden of proof in this matter is upon the Union. It is not disputed that the records maintained by the dispatcher confirm his assertion that he did place telephone calls to the grievor’s residence as he alleges. In the circumstances these records, which are documents maintained in the normal course of business, must be taken as constituting the best evidence available, absent any impeachment of their accuracy. While the matter is not without doubt, and the parties should obviously consider the wisdom of bringing safeguards to bear in respect of calling procedures, as is done in the rail industry, the Arbitrator must conclude that the Union has not discharged the burden of establishing, on the balance of probabilities, that the Company violated its collective agreement obligation to call the grievor for available work on the occasion in question. For these reasons the grievance must he dismissed.

DATED at Toronto this 22nd day of February, 1989.

(signed) MICHEL G. PICHER

ARBITRATOR