BETWEEN:

(the "Company")

AND

(The "Union")

SOLE ARBITRATOR: Judge J. C. Anderson

There appeared on behalf of the Company:

K. L. Crump – Assistant Manager labour Relation

R. St. Pierre – Labour Relations assistant

S. J. Mayer – Labour Relations Assistant

J. K. Culkin – Labour Relations Assistant

T. A. Johnston – Assistant Vice-President, Labour Relations

And on behalf of the Union:

W. G. Flood – General Chairman

G. C. Gale – Vice-President

A hearing in this matter was held at Montreal on August 28 and Toronto, Ontario on September 25, 1964.

Pursuant to a letter dated July 1st and signed by Thomas A. Johnstone, Assistant Vice-President, Labour Relations, Canadian National Railways; A.M. Hand, Manager, Labour Relations, Canadian Pacific Railways, and G.C. gale, Vice- President of the Brotherhood of Railroad Trainmen, I was appointed single umpire to arbitrate certain disputes between the Brotherhood of Railroad Trainmen and the railways, of which this was one.

Evidence and argument with relations to this grievance was heard in Montreal on August 28, 1964 in part, and the hearing was adjourned and continued in Toronto on September 25th. Appearances in Toronto were as follows:

The agreed statement of dispute reads as follows:

The parties argued this case in Montreal on the basis of the statements taken from the witnesses whose evidence, it was felt, had a bearing on the grievor’s conduct, but at the adjourned hearing in Toronto sworn evidence was given by Investigator Reeks and by the grievor.

J.O. Dennison was hired as a Yard Helper on November 25th, 1948 and promoted to Yard Foreman on November 27th, 1951. Up until about two months prior to the 28th of February, 1963, Dennison had worked on the day shift in the yard, in and out of the Union Station area in Toronto. However, Dennison, although he might have had a position by reason of his seniority which would involve him working during the day time, elected to work from 11:45 p.m. until 7:45 a.m. on a regular coach yard assignment in Toronto Terminals.

On March 1st, 1963, Special Investigator Reeks was on duty in Union Station in the vicinity of Tracks One and Two and took up an observation post in the elevator shaft in the baggage elevator on Platform No. Two near the west end of the Union Station sheds. At about 1:20 a.m. the special investigator noticed a man emerge from the Yard Master’s office and look at express traffic loaded on 4-wheel platform trucks and at a later time, according to Reeks’ evidence, he saw the same man pick up a large carton off of a platform truck and put it in box baggage car CN-11197. He later identified J.C. Dennison as being the man who removed the carton from the platform truck.

The case turns on a consideration of the weight that should be placed on Investigator Reeks’ evidence and the weight that should be placed on J.O. Denisson’s alibi.

It is contended by and on behalf of the grievor that CN Officer L.E. Reeks took a statement from the grievor in violation of Article 12.1 of the current schedule, which reads as follows:

and that the procedure laid down by Article 121 was breached in that:

It is also contended on behalf of Yardman Dennison that the charges against him were not proven, and that Officer Reeks’ evidence should not be relied on for purposes of identification and that the report that Officer Reeks made was purely circumstantial and therefore that the Company has not proven Yardman Dennison guilty of unauthorized removal of a carton containing a television set from an express truck and attempting to secrete it in empty box car CN-11197 while on duty March 1st, 1963.

The Company contended that the experienced Special Investigator Reeks clearly and carefully identified Dennison as being the man who removed a large carton from a platform truck and put it in box baggage car CN-11197 at approximately 1:45 a.m. on March 1st; that on examination later the carton was found to contain a Westinghouse television set shipped by Canadian Westinghouse Company, Hamilton, Ontario and consigned to Timmins Service Depot, Timmins, Ontario.

The Company also contends that Article 121 does not in any way limit the rightful activities of law enforcement officers, and that it was the duty of Reeks while on Company property to conduct such investigations and make such inquiries as might be necessary where any suspicions existed that an act prejudicial to the Company’s interests had been or was being committed; that Reeks interrogation of Dennison was properly and rightfully conducted and was not in any way an investigation within the meaning of Article 121 of the Collective Agreement; that the investigation for which Article 121 makes provision was held by Assistant Superintendent Scott, Mr. Dennison’s superior officer, and that at that investigation Mr. Dennison had an employee representative with him, Yardmaster W.J. White, and that all provisions of Article 121 were complied with.

Further, it is the Company’s contention that there should be no doubt from Investigator Reeks evidence that Dennison was the man who removed the carton from a truck on Track Two at about 1:45 a.m., March 1st and put it in a baggage car, and further, that the alibi that Dennison provided, namely, that at about 1:15 a.m. he had decided that members of his crew would like to have coffee and forthwith he left his place of duty without permission for a period of approximately fifty minutes, ought not to be believed and is not a satisfactory explanation of his whereabouts from 1:15 to 2:05 or 2:10 a.m.

In summary form, Special Investigator Reeks stated in evidence that at about 1:20 a.m., March 1st, 1963 he stationed himself in Number Two baggage elevator in the Union Station depot with a good view of Platforms One, Two, Three and Four, between the express and baggage elevators.

He noticed a man come out of the Yardmaster’s office dressed in a red and black checked ski-type hat, shirt of similar color and pattern as the hat, and wearing a light colored winter type coat which was open and also wearing a dark colored scarf.

Then in his evidence Special Investigator Reeks stated that the man he described in his evidence began walking easterly along Platform Number One, passed some express traffic on four-wheelers and was looking at what was contained on these express traffic four-wheelers, and then moved out of view for a moment and re-appeared in view back on Platform Number One and continued moving eastward looking at express traffic on the four-wheelers beyond the baggage elevators.

At this time, according to the evidence of Reeks, he moved from Platform One to Platform Two and again examined express traffic east of Number Two Elevator and moved westward towards cars on Track Two in the vicinity of the transfer shed. Then, according to Inspector Reeks, he saw two cars had been moved onto Track Two and were standing between the express and baggage elevators, and at this time he saw the person whom later identified as the grievor talking to express tractor operator J. Whitter, and after Whitter moved his tractor away the man Reeks later identified as the grievor, according to Reeks, opened the door of the second car, walked to the four-wheelers adjacent to Number Two Express Elevator and moved a large carton from the four-wheeler and put it into the first box car CN-11197.

Then Reeks said that he got out of the elevator, and seeing that the two cars were being pulled westward from the depot ran after them and when he came abreast of car CN-11197 he saw the person who had moved the carton from the four-wheeler into the car standing in the doorway of this car and he also saw at the same time in this car a large carton. He then again ran forward and stopped the engine and went back to the car and found that the man he had seen in the doorway of the car had climbed onto the roof of the car. He shouted to him to come down, but the man climbed down on the opposite side and disappeared.

After this, Reeks identified himself to the engine man and asked all members of the crew with exception of Yardman Dennison to attend at car 11197, and there he showed them the carton in the car and, according to his evidence, wrote his name upon the carton. He then removed the carton, had it taken to the Investigation Office, and took the crew along with him and identified the carton as earlier described as containing one Westinghouse television.

Then at about 2:10 a.m. the man that he says he saw take the carton off the four-wheeler and put it into the baggage car came into the office and identified himself as Jack Oswald Dennison, the grievor. Reeks told Dennison that he had seen him remove the carton from a four-wheeler and put it on CN car 11197 at 1:45 a.m.

At the investigation before W. Scott in the office of the assistant superintendent at Toronto in the early morning of March 1st, Mr. Dennison was asked certain questions and was given the opportunity and did have fellow employee W.J. White present with him during the investigation. He denied being in the depot at the time police officer Reeks stated he saw him removing the carton from the express traffic four-wheeler and putting it in baggage car 11197. He explained that at about 1:15 a.m. he had left the premises to see if he could get some coffee for the crew and admitted that he had left without permission. He described the clothing he was wearing as red and black checked ski-type hat, shirt of similar color and pattern as hat, light colored winter coat and wearing a dark colored scarf. He described his movements from the time the engine arrived at the depot until he arrived at the Yard Office about 2:10 March 1st. This description is, in short, as follows:

He stated that prior to one a.m. the engine which his crew was working with three cars backed on Track Seven or Eight and cut off one CPR car and that following this he walked over to the vicinity of the Yard office on Track No. One Platform. Then he walked across to Track Two Platform where two cars were located at the west end of the train shed, and he said he examined the refrigerator car which was westerly of the two to ascertain if it was empty. He then relates that he spoke to an express tractor operator and then proceeded across to Platform No. One eastward to exit to the depot. He estimates that this would be about fifteen minutes after the engine arrived with the three cars. He then says he went to the depot to look for coffee. This then would be about 1:15 a.m.

In continuing his recital he stated there was no place open in the depot and he returned and walked along Track No. One to the ramp opposite Simcoe Street and from thence to the Batclay Hotel and secured five cans of soft drinks and then returned to the Yard office, arriving about, 2:05 a.m. He stated that it would take about fifty minutes to cover the movements above described from the time he left for coffee at 1:15 a.m. until the time he arrived back with the soft drinks at 2:05 a.m.

Further statements were taken from Engineman Whitney, Firemen Helper Reid, Yard Helper Spence, Yard Foreman Matchett, Tractor Operator Whitter and Yard -Master Muir.

Tractor Operator Whitter stated that at about 1:40 a.m. on the platform adjoining Track Two a little east of the CN express elevator he spoke to a Yardman standing nearby. He was not able to say who the Yardman was but assumed he was attached to the crew of the train. He described the Yardman as wearing a heavy winter cap with black and red squares and heavy winter clothing, and Yardmaster A.C. Muir, in his statement gave the information that about 1:15 a.m. he was on the Track Mine and instructed Yard Foreman Mattchett and Yard Helper Dennison with respect to the required movements of the engine, returned to Track Two about 1:35 a.m. and then coupled to a box baggage and express refrigerator car which were standing west of the crossing and were empty and were to be moved to the coach yard.

It will be noted that Mr. Dennison said on being questioned that he was not on duty when his engine returned to be coupled with the two cars on Track Two. It was during this period between 1:35 a.m. and 1:50 a.m. that Investigator Reeks also stated he saw Dennison without authority remove the television set from a four-wheeler and put it into the empty car. Investigator Reeks also said that he had covered the ground that the Yard Helper said he covered during the time he claims to be absent, and with walking slowly it took him less than half of the time that Dennison claims it took him to go down into the Union Station, return and go into the Barclay Hotel and return with some soft drinks.

The questioning of the other members of the crew did not illicit any information with respect to the identity of the person who removed the television set from the four-wheeler on Platform Two and put it into the CN car 11197.

I am impressed with the careful description of Dennison given by Reeks, and certainly Reeks had an opportunity to see whoever the person was that removed the carton from the four-wheeler at close range when he ran alongside the car that he had seen the carton put in. He swears he was then three or four feet from the man whom he later identified as Dennison, and certainly he gave a minute description of Dennison’s clothing which corresponded very closely with a description that Dennison gave of his own clothing.

There is no doubt about the fact that Dennison was absent from duty, and without leave, for some time, but I have come to the conclusion that to cover the movements which he said he covered in the critical period between 1:15 and 2:05 would only have taken less than half the fifty minutes which he said he occupied in going down first to the depot to see if he could get coffee an then to the Barclay Hotel.

There remains only to be decided whether or not it is safe and proper under the circumstances to accept the identity of Dennison from the evidence of one witness, Reeks.

The lighting was fairly good in the area under observation by Reeks, and Reeks is obviously a trained officer. I was impressed with the precise manner in which he gave evidence, and I have no confidence and can not accept the alibi given by Dennison as to his absence during the critical period when, according to Reeks, the television set was removed from the four-wheeler and put in the baggage car. Then two independent witnesses, one Whitter, who states that he had conversation with Dennison at about 1:40 a.m., or with a Yardman who obviously was Dennison because Dennison says he had a conversation with the tractor operator on Platform Two, and Yardmaster Muir places the time that the engine returned to Track Two and coupled with the box car as being about 1:35 a.m. It was at this approximate period of time that Officer Reeks says he saw Dennison remove the carton from the four-wheeler and put it in the box car. He places this act as being at 1:45 a.m., again the time Dennison says he was away getting soft drinks or coffee for the crew.

The Company’s allegation against Dennison actually amounts to charging him with an attempt at theft, and the Brotherhood argument is that the degree of proof necessary to establish that Yardman Dennison was guilty of this unauthorized act in the same degree of proof as is required in a criminal case.

This is an interesting point, and when disciplinary measures, including dismissal have in effect charged employees with criminal acts, some arbitrators have held that the degree of proof necessary if the dismissal is to be sustained is the degree of proof beyond reasonable doubt required in criminal cases. Other arbitrators have found that since dismissal is a civil matter and the rights of the employer and employee arise out of a contract which is a civil matter, that the degree of proof required on the part of the employer in determining whether an employee has been guilty of an act which amounts to a criminal act and for which he is dismissed is simply the usual degree of proof required in civil cases, that is, preponderance of evidence or a balance of probabilities degree of proof.

There are a number of decided cases which seem to indicate that the criminal degree of proof is the degree of proof which should be relied upon, yet prefer to adopt the reasoning used by Middleton, J.A., in the Lang Shirt Company and London Life case reported in ‘62 Ontario Law Reports at page 93, where Mr. Justice Middleton adopts the following language used in an earlier case:

On a careful examination of the evidence I am satisfied that the overwhelming weight of the evidence points to the fact that Dennison was the employee who without authority removed the carton containing the television set from the four-wheeler on Platform Two and put it in the baggage car CN-11197, and that the weight of evidence pointing to the evil act of Dennison is such as to be equal to the requirements of certainty to found a conviction in a criminal case.

In this case, in the event that it is argued that the criminal degree of proof regarding Dennison has not been satisfied beyond a reasonable doubt, there are other circumstances which warrant the discharge of the employee Dennison. At the hearing in Toronto Dennison was asked if he had, on a certain date while in the employ of the Company, been found guilty of breaking and entering theft, and he readily admitted this to be so and that he had been given a one year suspended sentence with respect to the conviction.

It was also given in evidence that this information, namely that the employee Dennison had a conviction against him, was not known at the time he was discharged from the Company’s employment on March 1, 1963.

It is a well established rule of law that if a good cause of dismissal existed at the time of the grievance was being determined by arbitration, it is immaterial that at the time of the dismissal the Company, in dismissing the grievor, acted upon some other cause which is itself would be insufficient or ill-founded. In other words, even if it were to be held, contrary to my finding here, that it has not been proven with sufficient degree of proof that Dennison removed the carton without authority from the four-wheeler and put it in the CN car 11197, there is now, at the time of this arbitration, other grounds which would amply justify the dismissal of Dennison if he were at this time in the employment of the Company. Therefore, even if the grievance were to be upheld, and I can find no reason for upholding it, on the ground of insufficient identification of the person who removed the carton, yet the fact that it has now come to the attention of the employer that the grievor was, shortly before the incident under investigation here, convicted of a criminal offense would make it impossible to order Dennison’s re-instatement, because even if Dennison were ordered re-instated one minute the Company would be justified in dismissing him the next minute by reason of the fact that there is now brought to its attention a course of conduct, namely a conviction of the criminal offense of breaking, entering and theft which would justify dismissal.

Now dealing with the other items in the employees’ contentions, namely, that Officer Reeks took a statement in violation of Article 121, I find that Officer Reeks was special investigating officer and when investigating in special circumstances relating to railway employees on railway property had the right to ask Dennison for an explanation of his conduct, but if Dennison had refused to give him a statement that he would not have been acting properly to insist upon such a statement and would have had to lay a criminal charge against him before he could have compelled him to come to the yard Office.

I find the investigation envisaged by Article 121 of the Collective Agreement was carried out before Dennison’s superior officer, and that he had with him at that time, as was his right, a fellow employee. I also find that Dennison was not taken out of service by Officer Reeks and that in fact Dennison was paid for his assignment February 28th to March 1st.

I find under Article 121 there was no requirement that the statement taken from the Yardman Dennison be made available to the General Chairman when the grievance was under review, but that in any event such statement was completely exculpatory and was nothing more nor less a denial of the charge.

I also find that Dennison was well aware of the matter being investigated and that is conduct was being investigated in relation to the unauthorized removal of a carton from a four-wheeler.

There in one other contention of the employees relating to the alleged violation of Article 121 that needs to be considered. It is, that Yardman Dennison was not given the opportunity by Officer Reeks to question other members of the Yard crew who Officer Reeks questioned as witnesses when their evidence may have had a bearing on his responsibility. The questioning under this contention by Officer Reeks was not questioning that took place in pursuance of the requirements of Article 121. The investigation under Article 121 took place before W. Scott, who was Dennison’s superior officer.

Section 121, among other things, states that an employee will not be dismissed before investigation, and that this investigation he and such fellow employee as appears with him will have the right to ear all of the evidence submitted and will be given the opportunity through the presiding officer to ask questions of witnesses whose evidence may have a bearing on his responsibility.

It is not clear in this case whether Dennison and the fellow employee who appeared with him at the investigation were given the opportunity to ask questions of the various witnesses, namely Whitter, Yardmaster Muir, Engineman Whitney, Yard Helper Spence, Firemen Helper Reid and Yard Foreman Matchett, but it would appear that in any event this right was not requested by the grievor or the fellow employee who was with him. In any case, later on the full record was made available on an appeal to the general officers of the Brotherhood, and if all the witnesses whose evidence may have had a bearing on Dennison’s responsibility had been brought before Dennison and Dennison then asked the questions if he wishes to ask them any questions, I am satisfied there would have been no difference in the result of this arbitration. At the same time, as an arbiter’s statement, I do suggest that it is important for the Company while investigating matters of discipline to make sure that the grievor and such fellow employee as is with him and representing him have the right to hear all of the evidence submitted and be given, without asking for it, an opportunity, through the presiding officer to ask questions of all witnesses whose evidence may have a bearing on the responsibility of the grievor.

While no substantial injustice has been done in this case such a failure of giving the grievor such an opportunity may in some circumstances contribute to the possibility of a miscarriage of justice with respect to disciplining or dismissal of an employee.

For all of the reasons given above, in summary I find that Article 121 of the Agreement has not been violated in any substantial respect which may have affected the rights of the grievor, and secondly, that the charges against the grievor have been proven, and thirdly, that even if the charges against the grievor which were the original basis of his dismissal had not been proven at this arbitration, evidence that the grievor was guilty of a criminal act of breaking and entering and theft has been admitted by the grievor and thus, even if the arbitrator had held that the charges against the employee had not been proven, the arbiter would in such circumstances not make an order restoring the grievor to employment because if such an order were made, on the same day he was restored to employment the Company could dismiss him for conduct which warranted dismissal, and which while not known to the employer at the time of the original dismissal has since come to its knowledge, namely the fact that he was, on his own admission, convicted of the criminal offense of breaking and entering and theft.

DATED at Belleville, Ontario this 5th day of October, 1964

Single Umpire