AH – 410

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CP EXPRESS & TRANSPORT

(the “Company”)

AND

TRANSPORTATION COMMUNICATIONS UNION

(the “Union”)

GRIEVANCE RE T. DIACHUK

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:

Employee T. Diachuk was issued 20 demerits for alleged violation of Rule 11 D. The Union grieved the fact that a proper interview was not held in accordance with Article 8 of the Agreement. Employee T. Diachuk attended two interviews on two occasions, but was refused the employee of his choice to represent him.

The Union grieved the discipline and requested the demerits be removed from his discipline record.

The Company declined the Union’s request.

The relief requested is the complete removal of the 20 demerits.

I am satisfied that in the instant case the grievor did not have an absolute right to require the attendance of a particular union representative. In this regard article 8.2 provides as follows:

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.

It is common ground that at the time of the first investigation the Union’s Protective Chairman, Mr. H. Tryhorn, was not available to represent the grievor. The Company then acceded to the grievor’s request to delay the investigation. When the second investigation was convened Mr. Tryhorn was again unavailable, as he was at work on his route as a P&D driver. Mr. Diachuk then refused to attend the investigation, even though it would have been possible for him to be represented by another union steward. The Company proceeded with the investigation in the grievor’s absence and the imposition of demerits for failing to notify his supervisor of his whereabouts ensued.

With respect to the investigation the issue is whether “an accredited representative {was} not reasonably available”. It is clear to the Arbitrator that the foregoing language does not give to an employee an absolute right to representation by the union representative of his or her choice. The investigation is not a quasi-judicial hearing, but merely a means for the employer to determine such facts as are available in relation to a decision relating to the possible discipline of an employee. The clear intention of article 8.2 is that an employee should not be left to be interrogated alone, and that the employee is entitled to the company and assistance of an available union representative or a fellow employee. There is, moreover, nothing in the facts which discloses that Chairman Tryhorn had any specific knowledge of the particular fact situation giving rise to the grievor’s investigation. In all of the circumstances I must conclude that the company was entitled to proceed with the investigation, and that the grievor, who was not entitled to insist on Mr. Tryhorn’s presence, left at his peril.

The only material in the record is the statements of the grievor’s supervisors to the effect that on July 13, 1988 he was out of touch with his supervisors, therefore unavailable for any specific assignment, for a period of approximately one hour. While the grievor appears to have stated to his supervisor that he was cleaning the yard, it does not appear disputed that no one had instructed him to do so, and he did not advise any member of management of his whereabouts. It also appears from the report of supervisor Kenny that the grievor used abusive and disrespectful language toward him.

In all of the circumstances the Arbitrator must conclude that the imposition of 20 demerits was justified. For these reasons the grievance must be dismissed.

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

(signed) MICHEL G. PICHER

ARBITRATOR