IN THE MATTER OF ARBITRATION OFA DISPUTE

BETWEEN

CANADIAN NATIONAL RAILWAYS

TELECOMMUNICATIONS DEPARTMENT

AND

CANADIAN TELECOMMUNICATIONS UNION

DIVISION NO. 43 OF THE UNITED TELEGRAPH WORKERS

Pursuant to the provisions of a collective agreement between the parties, Mr. W.B. Rayner was appointed as Chairman of the Arbitration Board to deal with the dispute. Nominees to the Board were Mr. S.E. Dinsdale, Q.C. for the Company, and Mr. C.W. Pethick for the Union. The arbitration hearing was held at Toronto, Ontatio on 18 July 1974.

Representatives of the parties at the hearing were

For the Company: J.W. Healy, Q.C. Counsel

For the Union: M. Levinson Counsel

W. Angus Counsel

PARTIES: CANADIAN NATIONAL RAILWAYS

TELECOMMUNICATIONS DEPARTMENT

and

CANADIAN TELECOMMUNICATIONS UNION

DIVISION NO.43 OF THE UNITED TELEGRAPH

WORKERS

AGREEMENT: 8.1

SUBJECT OF DISPUTE: The grievor alleged that he was unjustly dealt with when

he was assessed discipline of ten workimg days’

suspension for unauthorized use of Company telephone

facilities during the period 7 to 29 March 1973.

COMMENTARY: The grievor, who was employed as a General Technician

at Cornwall, Ontario was participating in a job program

in Montreal during March 1973. While at Montreal, the

grievor made several telephone calls to his home in

Cornwall from a Company telephone resulting an a

telephone charge in the amount of $24.99 being levied

against the Company.

DECISION: The Board, in a majority decision with Union Nominee

dissenting, agreed that the grievor had used the

Company’s equipment in an improper and unauthorized

manner. However, they moved that the ten-day

suspension be reduced to a two-day suspension.

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CANADIAN NATIONAL RAILWAY COMPANY

TELECOMMUNICATIONS DEPARTMENT

(hereinafter called the "Company")

- and -

CANADIAN TELECOMMUNICATIONS UNION,

DIVISION NO. 43 OF THE UNITED TELEGRAPH WORKERS

GRIEVANCE OF A. M. KELLY

(hereinafter called the "Grievor")

BOARD OF ARBITRATION: W.B. Rayner, Chairman

C.W. Pethick, Union Nominee

S.E. Dinsdale, Q.C., Company Nominee

APPEARING FOR THE UNION: M. Levinson, Counsel

W. Angus, Counsel

APPEARING FOR THE COMPANY: J.W. Healy, Q.C., Counsel

HEARING HELD IN TORONTO THE 18TH DAY OF JULY, 1974.

AWARD

In this case, the grievor alleges that a ten day suspension he received was to severe for the offense commited. The grievor is employed as a general technician in Cornwall and has been in the employ of the Company since March 1951. In March 1973, he was participating in a job training program in Montreal. While there, he made several telephone calls from a Company telephone to his home phone in Cornwall. These telephone calls resulted in a telephone charge of $24.99 levied against the Company.

The Company takes the position that the grievor attempted to defraud the Company or alternatively he used the Company’s equipment in an improper fashion. The grievor, while while admitting he used the Company’s equipment denied that he attempted to defraud the Company.

The Company has a private telephone system called "Centrex". This allows the Company to place direct distant dialing long distant calls between areas having the Centrex system. Since this system is the Company’s own system, no long distant telephone charges are levied against the Company by Bell Telephone. In the instant case, the grievor, who was stationed in Montreal, placed calls to Cornwall through the Company’s Centrex system via Quebec. In particular, the grievor dialed the numbers 1,2,3 to place a call on the Centrex system from montreal to Quebec City. He then dialed 9 to get into the Quebec City local exchange. Then he dialed 1 for direct long distance dialing and followed that with the long distance telephone area code for Cornwall. The Company takes the position that because of the grievor’s experience, he could only be placing the call in this round-about fashion in an attempt to defraud the Company for the cost of the call. It should be pointed out that the calls placed from the Centrex system in Quebec were billed to a central switchboard and it was relatively difficult for the Company to trace the calls. It did so by determining the place to which the calls were made. From that information the Company was able to work back and determine that the grievor made the call.

The grievor takes the position that he thought there were no charges when the Centrex system were used. He points out that he paid the bill when requested to do so by the Company and at no time denied making the calls when confronted by the Company. In essence, the grievor maintains that he had no intent to defraud the Company. In support of this position, the Union led the following evidence:

1. The grievor had, with the knowledge of his supervisors in Cornwall, used the Company’s Centrex system in Cornwall to place calls of a personal nature to Ottawa, Toronto, Montreal and Quebec City.

2. The grievor’s immediate supervisor in Montreal at the time the grievor was on course, generally permitted employees on course to use the Company telephone to place calls to their homes. This was not acceptable Company practice but was the practice of the supervisor in question. It should be pointed out however that the grievor apparently did know of this and in any event these calls were not placed through the Centrex system.

3. The grievor had placed several calls to Cornwall while in Montreal on a private telephone, charges for which he paid himself, until he was informed by another employee that calls could be placed through Quebec without charge.

Also, somewhat inferentially in support of the grievor’s position is the fact that if the grievor had simply terminated his long distance call through the Centrex system in Quebec City, no charges would have been levied. What caused the levying of charges was the routing of the call from Quebec City to Cornwall through the lines of Bell Telephone. In the past, when the grievor place calls, he was placing them from one Centrex location to another Centrex location and using only Company facilities for the long distance portion of the call.

Once in to the Centrex system in Quebec City when calling from Cornwall, the grievor then could dial any local Quebec number without the imposition of a long distance telephone charge.

Mr. Healy in his very able argument on behalf of the Company suggested that if the grievor was guilty of attempting to defraud the Company his offense was akin to theft. In that regard he suggested that the penalty was, indeed, lenient and discharge could well have flowed from the grievor’s actions. The Board does agree with Mr. Healy that if the grievor was attempting to defraud the Company, it would be akin to theft and the penalty should not be disturbed. The Board also agrees with Mr. Healy’s submission, and does not agree with Mr. Levinson’s submission that on an issue of this type, the Company bears the onus but only on the balance of probabilities and not beyond a reasonable doubt. (See: Re Toronto Newspaper Guild, local 87 and Toronto Star 24 L.A.C. 187.) However, the Board cannot conclude that the Company has satisfied the lesser onus. In the Board’s opinion, the grievor has laid evidence which would warrant a finding that he was not attempting to defraud the Company. Although he did use the equipment for his own personal use, the Board’s concludes that he honestly felt that no charges would be levied against the Company.

However, the Board does find that the grievor did use Company equipment for his own personal use in a manner not authorized by the Company. In reaching this conclusion, the Board was troubled somewhat by the evidence of Mr. LeMarsh, an Assistant Regional Manager of the Company, to the effect that such use was in certain instances tollerated but it was not a permitted use. The Board was also troubled by the fact that certain supervisors seemed somewhat lax in this regard. However, the Board can well understand the Company’s concern in this matter and the Board does conclude that the grievor should have realized that the equipment should not have been so used. Indeed, the grievance itself seems to indicate that the grievor recognized his error and it only sought a reduction in the penalty. In reaching this conclusion, the Board has not overlooked the arguments advanced by Mr. Levinson but cannot find on the evidence that there was any condonation by the Company with respect to the grievor’s use of the Company’s facilities in Montreal.

Therefore, in summation, the Board is of the opinion that the Company has not established that the grievor intented to defraud it. The only evidence leading to their conclusion is the grievor’s experience and the somewhat complicated method he used to place his call to Cornwall. The inference that the grievor intented to defraud the Company that might be drawn from these facts is negated by the evidence led by and on behalf of the grievor. The evidence of the grievor’s earlier calls placed at a private phone, the evidence of the grievor’s conversation with Mr. Lamoureux, and the evidence of the grievor’s past experience in placing calls from Cornwall using the Company’s system, leads the Board to conclude that the grievor did, in fact, believe that no charges would be imposed against the Company as a result of his telephone calls. Accordingly, the Board concludes that the grievor did not intend to defraud the Company.

As stated earlier, the Board does conclude that the grievor used the Company’s equipment in an improper and unauthorized manner. Accordingly, bearing all of the facts of the case in mind, the Board is of the opinion that the ten day suspension should be reduced to a two day suspension and the grievor reimbursed for the extra eight days that he lost

because of the discipline.

Accordingly, the Board so awards.

Dated at London this 18th day of October, 1974

W. B. Rayner

I concur S. E. Dinsdale

I dissent C.W. Pethick

IN THE MATTER OF AN ARBITRATION

BETWEEN

Canadian National Telecommunications

and

Canadian Telecommunications Union Division

No. 43, of the United Telegraph Workers.

Grievance of A.M. Kelly

I am in complete accord with the Majority Report in this case in respect to the question of fraud. There is no evidence to back up the charge by the Company that the grievor attempted to defraud the Company.

In regards to the conclusion reached on page 6 of the report, "that the grievor used the Company’s equipment in an improper and unauthorized manner," I do not feel as strongly, on that point as the majority report suggests.

On page 5 of the majority report it reads: "However, the Board does find that the grievor did use Company equipment for his own personal use in a matter not authorized by the Company. In reaching this conclusion, the Board was troubled by the evidence of Mr. LeMarsh, an Assistant Regional Manager of the Company, to the effect that such use was in certain instances tolerated but it was not a permitted use. The Board was also troubled by the fact that certain supervisors seemed somewhat lax in this regard."

I have to agree with the majority report that the grievor did use Company equipment for his own personal use in a manner not at least officially authorized. However knowing that the employees had been allowed to use company facilities to telephone home when on training and being permitted to do so, by the supervisor in charge, reduces considerably the seriousness of the offence.

On page 3 of the majority report I would like to refer to the numbered paragraphs 1 and 2 and number 3 and 4.

Number 1 acknowledges that the grievor had with the knowledge of his supervisors in Cornwall, used the Company’s Centrex system to place calls of a personal nature to Ottawa, Toronto, Montreal and Quebec City.

Number 2 recognizes that the grievor’s immediate supervisor in Montreal at the time the grievor was on course, generally permitted employees on course to use the Company’s telephone to place calls to their homes. It also recognizes of course that this was not acceptable Company practice, but was the practice of the supervisor in question.

Number 3 confirms that the grievor had placed several calls to Cornwall while in Montreal on a private telephone and paid the charges himself. It wasn’t until he discovered from other employees that he could place such calls without charge, that he used Company’s facilities.

I have to agree with what the report states in the three paragraphs referred to, but I reach a different viewpoint on the penalty imposed on the grievor.

Another point that should be taken into consideration when assessing the penalty to be imposed is the fact that a technician working in the telecommunication industry uses the telephone from one city to another just as frequently as many other people telephone from point to point to another within the same city. It is such a common practice that it means very little to them. So in my opinion I feel that the grievor looked upon this as very minor thing indeed and when he found out that other employees were doing it on a regular basis, he decided he may as well take advantage of it himself. It was a perfectly natural thing for him to do.

To conclude I agree entirely with the majority report that there was no fraud involved and that because of that the penalty should be reduced.

When the seriousness of the second count, that is using Company facilities for personal use, which is unauthorized officially by the Company is concerned, the matter is wether or not a two day suspension is justified.

Many industries have a policy of not authorizing employees to use telephone facilities for personal use, but having found an employee guilty of doing so, is hardly reason for a penalty of two days suspension being imposed.

I am convinced that a technician like the grievor as a result of his every day routine of telephoning from city to city on Company facilities on Company business, could see very little difference between using a telephone to telephone home within a city, and telephoning on the same telephone to another city where his home might be located.

I consider that such a brief of Company rules does not warrant a two day suspension. Surely it would have been sufficient to warn the grievor about using Company facilities for personal use, and in addition in order to stop the practice of other employees doing so, place a warning to all employees on the bulletin board.

I must therefore, while agreeing with the majority report that the grievor was guilty of using Company facilities without official authorization, I disagree with the penalty imposed in the report of a two day suspension.

The grievor should receive no suspension and the 10 days earnings which was held back from him, should be refunded. It is sufficient that he be given a warning against using Company facilities for personal use in the future and the other employees be reminded of Company policy, through the bulletin boards in the various offices in the area.

(Sgd.) C.W. Pethick

Union Nominee

Dated at Toronto, Ontario,

October 15, 1974.