AH – 414

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CP EXPRESS & TRANSPORT

(the “Company”)

AND

TRANSPORTATION COMMUNICATIONS UNION

(the “Union”)

GRIEVANCE RE GLEN WARNER, KINGSTON TERMINAL

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 at Toronto on February 13, 1989.

AWARD

DISPUTE:

The assessment of 15 demerits and claim for 3 hours wages at time and one-half to CPET employee G. Warner, Kingston, Ontario.

JOINT STATEMENT OF ISSUE:

Employee Warner, who is a spareboard linehaul vehicleman, was subjected to an investigation on January 22, 1988, at 10 a.m., regarding a charge of allegedly disobeying a direct order.

The employee was assessed 25 demerits, which were reduced to 15 at Step 3 of grievance procedures.

It is the contention of the Union the charges were not sustained, and that the Company has double standards of conduct; one for bargaining unit employees and one for management employees.

The Union requested 3 hours payment and all demerits removed.

The Company refused to pay the 3 hours and did reduce the demerits from 25 to 15.

The Company alleges that Mr. Warner knowingly violated a directive not to give a ride to suspended employee T. Stanley. In this matter the Employer bears the burden of proof. It does not appear disputed, on the evidence before the Arbitrator, that Mr. Stanley did enter the cab of the grievor’s truck at a location just outside the Obico Terminal in Toronto. There is no evidence, however, that the grievor made any agreement with Mr. Stanley, or formulated an intention, to give him a ride. It would appear from the record that in fact Mr. Stanley sat in the cab of the grievor’s truck and engaged in conversation for a period of approximately five minutes, during which time they were approached by supervisory officers who subsequently disciplined Mr. Warner for disregarding the instruction given to him with respect to giving Mr. Stanley a ride. Even if it could be said that Mr. Warner had the intention to do so, it is well established that employees cannot be disciplined for their thoughts or wishes. The simple fact in the instant case is that Mr. Warner did not transport Mr. Stanley anywhere. In these circumstances it cannot be said that the grievor disregarded any instruction given to him, and no just cause for discipline as disclosed.

For the foregoing reasons the demerits assessed against the grievor shall be removed from his record. As it appears that it is a relatively common practice for employees to attend at investigation hearings during non-working hours, and payment for such time has not been negotiated within the terms of the collective agreement, the Arbitrator makes no order with respect to the request for the payment of wages relating to the time of the disciplinary investigation.

I retain jurisdiction in the event of any dispute between the parties respecting the interpretation or implementation of this Award.

DATED AT TORONTO, this 22nd day of February, 1989.

(signed) MICHEL G. PICHER

ARBITRATOR