AH – 431
IN THE MATTER OF AN ARBITRATION
CP EXPRESS & TRANSPORT
TRANSPORTATION COMMUNICATIONS UNION
GRIEVANCE RE DISCHARGE OF DANIEL CHAMPAGNE
SOLE ARBITRATOR: Michel G. Picher
There appeared on behalf of the Company:
R. M. Skelly – Counsel
L. Béchamp – Counsel
B. F. Weinert – Manager, Labour Relations
C. McSween – Regional Manager, Quebec and the Maritimes
And on behalf of the Union:
G. Marceau – Counsel
K. Cahill – Counsel
J. J. Boyce – General Chairman
M. Gauthier – Vice-General Chairman
G. Lemire – Local Chairman
Representing other grievors:
R. Mercier – Counsel
F. Poirier – Counsel
A hearing in this matter was held in Montreal, March 27, 28, 29 and 30 and June 11, 1990. (Verbal decision delivered on July 24, 1990)
This is a grievance concerning the discharge of an employee for selling drugs on Company property. The Dispute and Joint Statement of Issue, filed prior to the hearing, read as follows:
After having been arrested on August 17, 1989, by Canadian Pacific police officers, Mr. Daniel Champagne was suspended from his employment on August 18, 1989, and subsequently dismissed on August 28, 1989.
JOINT STATEMENT OF ISSUE:
Following an investigation held on August 25, 1989, the grievor was dismissed for:
a) Smoking drugs with a security officer of the Company on August 9, 1989;
b) Selling a small quantity of drug to a security officer of the Company on August 10, 1989;
c) Smoking drugs with a security officer of the Company on August 10, 1989.
The Union grieves the discharge for the following reasons:
a) The grievor was disciplined six (6) days before the investigation which resulted in his dismissal;
b) The investigating officer did not act in good faith;
c) The grievor at all times admitted to the facts with which he was charged but insists that the security officer exerted undue pressure on him to procure the drugs for him;
d) The Company violated Article 8.2 of the Collective Agreement;
e) The discharge of the grievor is illegal, unjust and too severe given all of the circumstances.
The Union requests that the discharge of the grievor be substituted with a less severe measure of discipline and that Mr. Champagne be reinstated without loss of seniority, compensation or benefits to which he is entitled by virtue of the Collective Agreement.
The Company rejects the claims of the Union and rejected the grievance at all steps of the grievance procedure.
The Company's claim concerning the sale of drugs on Company property by Mr. Champagne on August 10, 1989 is well established by the evidence before the Arbitrator. Moreover, the grievor himself does not deny having sold 3 grams and 2 grams of hashish, respectively, to two Canadian Pacific police officers, who were working undercover in the Company's warehouse at Lachine over a period of several weeks.
The dismissal of Mr. Champagne was the result of a secret police investigation carried out by CP Police without the specific knowledge of the Company's managers and supervisors. The only general knowledge of the employer was that of Mr. Scott, Director of the Lachine Terminal. In June 1989, he was advised that, following various reports of illegal activities in the warehouse, the CP Police wanted to carry out an undercover investigation at the warehouse. Mr. Scott therefore gave permission for the hiring of three police officers at the warehouse who were, to all appearances, regular employees.
The evidence establishes that the police officers did not furnish any information to the Company's management personnel, neither relative to the development of the investigation nor to the activities observed. It was not until August 18, following a massive raid by CP Police and the arrest of fourteen employees on the night of August 17, that the Company's supervisors became aware of the identities of the employees arrested and the accusation made against them. On August 23, 1989, Mr. Carl McSween, Regional Director and Manager in Chief of the Lachine Terminal, received from the Police Superintendent an Occurrence Report which divulged in a precise way the incidents which had resulted in the arrests of August 17. It must be specified that in view of his general knowledge to the effect that this was a matter of accusations of theft, drug use and the sale of illegal drugs, Mr. McSween suspended the implicated employees on August 18 pending his own investigation.
On August 25, Mr. McSween questioned individually each of the employees identified in the police report in the presence of a Union representative. That investigation and the conclusions drawn by Mr. McSween resulted in the discharge of twelve employees, including Mr. Champagne, on August 25, 1989.
Mr. Marceau, who represents the grievor and eight other unionized employees, and Mr. Mercier, who is Counsel for three of the dismissed employees, Mr. Daniel Mongeon, Mr. Yvon Gagné and Mr. Wilbrod Paquette, raise a preliminary objection to the dismissal of the employees. As stated in the Joint Statement of Issue, they claim that the disciplinary treatment of all of the dismissed employees was not in conformance with the mandatory procedures concerning disciplinary investigations in the Collective Agreement. According to their argument, the police investigation, and in particular the interrogation of the employees in the offices of the CP Police at Windsor Station, constituted a disciplinary investigation by the Company for the purposes of the Collective Agreement. According to Counsel for the Union, that procedure and the discipline which resulted are null and void in as much as there was no Union representative present and the time limits set out in the Collective Agreement were violated.
The first thrust of Counsel's argument is that the CP Police and the Company share an indivisible legal identity for the purposes of the Collective Agreement. In other words, it is their claim that the acts and knowledge of the Police are the acts and knowledge of the Company. Secondly, they submit that if the police officers and the Company are not a single legal entity, there exists between the two a relationship so close that for all practical purposes the police had become agents of the employer. According to this second theory, the CP Police acted, in effect, as the right arm of the Company and it must be held accountable for their acts as well as their knowledge at the time of the arrests and police interviews of August 17 and 18, 1989. In support of this position, Counsel for the Union argues arbitral jurisprudence, and in particular Re Motor Transport Industrial Relations Bureau of Ontario and General Truck Drivers' Union, Local 938 (1973), 4 L.A.C. (2d) 362 (Brown). In that award the Board came to the conclusion that the knowledge of the private investigator hired by the Company became, as he was its agent, the knowledge of the employer for the purposes of the disciplinary procedures contained in the collective agreement.
Counsel submits that the evidence justifies the conclusion that the employer and the railway police acted in concert, or at least in an client-agent relationship. To this effect it underlines the evidence of Mr. John Donovan, the CP Police Detective Sergeant who was in charge of the investigation in the Lachine warehouse. According to Mr. Donovan, in as much as he was the investigating officer, he had full access to the files and dossiers of CP Express and Transport without, it appears, having to ask anyone's permission. Furthermore, he exercised the discretion to order Mr. Réjean Morin, one of the employees arrested, to return to work the day after August 17 without any subsequent discipline. The evidence establishes that Mr. Donovan counted on Mr. Morin's cooperation and that the report made to Mr. McSween by Mr. Donovan exonerated Mr. Morin without explanation.
According to Counsel for the employees, the relationship between Detective Sergeant Donovan and the Company's supervisors went beyond that of a public, independent police force and a private enterprise. In their view, the access of Mr. Donovan to the employer's files and the power that he exercised in regard to Mr. Morin vis-à-vis Mr. McSween demonstrate that the police and the employer was certainly indivisible for the purposes of the Collective Agreement or at least in a client-agent relationship within the sense of the Motor Transport award.
The Arbitrator cannot accept these arguments. It is true that the relationship between the employer and the CP Police is not the same as that which exists between a provincial or municipal police force and a private enterprise. However, the distinction which is disclosed includes that particular law which extends to the railways the extraordinary right to establish their own police force. According to the Railway Act, the Canadian Pacific Police exercise all of the rights of a peace officer on Company property. As indicated in the evidence in the instant case, the senior police officers, as well as the officers in the field, work independently of the Company and its supervisors,who could themselves be the subject of their investigations. The supervisors, such as Mr. McSween in the present case, possess only such knowledge of the investigation as the police judge proper to reveal to them.
In CROA 1538, the Arbitrator made the following comments concerning the role of the police force vis-à-vis the disciplinary procedures in a collective agreement:
The principle issue in this case pertains to whether the grievor's meeting of March 12, 1985 with the CP Police investigators constituted a disciplinary investigation to which the "mandatory" and "substantive" procedural requirements of Article 27 of the collective agreement were relevant. There is no issue herein that information gathered by the CP Police during the course of the criminal investigation may and often is used as evidence at a collateral arbitration hearing to support the company's case for invoking discipline.
The trade union, accordingly, has argued that the March 12, 1985 meeting should be viewed as a disciplinary investigation. In Counsel's view, both the criminal and disciplinary aspects of the company's investigation merged simultaneously. As a result since the two objectives were achieved at the same meeting the company was obliged to follow, as alleged, the procedural safeguards contained in Article 27.1, 27.2 and 27.3 of the collective agreement. And, to be perfectly clear in that regard, I am satisfied that the grievor's "statement" made at the police investigation of March 12 was of utmost significance in triggering the subsequent disciplinary investigations that culminated in the grievor's discharge.
Notwithstanding the foregoing, however, I am of the view the CP Police investigation of March 12, 1985 must be seen as a separate and distinct investigation with the primary purpose of securing the apprehension of persons suspected of theft. The police investigators assigned to perform the investigation of suspected acts of theft in the circumstances described are empowered under the Railway Act to conduct themselves as police officers. They have available to them a host of remedies designed for the purpose of apprehending suspects who have engaged in crime. And so long as the CP Police obey the requisite procedural requirements for protecting the rights of citizenry at large they owe no further obligation to particular employees covered under the collective agreement negotiated by the company.
In other words as CROA #669 has stated a criminal investigation by CP Police is not the same type of investigation that is contemplated by Article 27.1 of the collective agreement. Where the former investigation's primary purpose is criminal deterrence the latter's primary purpose is the deterrence of misconduct at the work place. The notion that information that is garnered during a criminal investigation may be used (and is admissable) at a collateral arbitration case does not transform the fundamental nature of the criminal purpose of the police investigation. Or, more precisely, that information is admissable because of its relevance as evidence irrespective of its source.
This is not to say that the company ought to be allowed to exploit its police force for untoward purposes. It cannot be permitted to camouflage a police investigation for disciplinary purposes. The company ought not to be seen to abuse the favoured status extended it by Parliament of applying its own police for improper purposes. And it is in this context that I have interpreted CROA Case #280. In that case, as I understood the decision, because there was no criminal investigatory purpose to the police role in its dealing with the grievor, it was ruled that the company was duty bound to invoke the procedural safeguards for a disciplinary investigation contained in the collective agreement.
In the Arbitrator's view, these principles, besides being well established (see CROA 669, 1558 and 1737), apply in the instant case. The primary purpose of Mr. Donovan's investigation was the criminal prosecution of employees whose conduct, on the employer's property, violated the Criminal Code or the laws on the sale and possession of drugs. This purpose was realized in as much as Mr. Champagne was himself sentenced to one year for the sale of drugs and a second employee, Mr. Stéphane Vercaignie, was sentenced to two years for the same offence.
The evidence establishes that Mr. McSween had no specific knowledge of the conduct of the arrested employees nor of the accusations made against them before August 23, 1989. Since he was the only one who had the authority to act for the Company in matters of discipline, I must come to the conclusion that the procedure followed by Mr. McSween, to conduct the investigation of the employees in the presence of their Union representative on August 25 as well as the receipt of police reports, was in full conformance with the requirements of the Collective Agreement. Furthermore, I do not see any abuse in the use of the CP Police by the employer, in terms of CROA 280, in the facts of this grievance. For all of these reasons the preliminary position of Counsel for the Union must be rejected.
In the Arbitrator's view, to engage in the sale of narcotics on Company property is a most serious disciplinary infraction. Not only is it an illegal practice in the criminal sense, but such conduct risks undermining in a general way the morals of employees, as well as their safety while at work, and tarnishing the Company's reputation.
I find no mitigating factors in this case which would justify the reduction of the disciplinary sanction imposed to a measure less severe than discharge. With six years' seniority at the time of his discharge, Mr. Champagne cannot plead long service in order to reduce the impact of his offence. His selling of drugs, on two occasions while at work on August 10, 1989, was not the result of any undue influence on the part of the investigating officers, but was solely a choice which he made freely and consciously. Notwithstanding the skillful pleading of his Counsel, in the circumstances, I judge that the decision of the Company to discharge the grievor was fully justified.
For these reasons the grievance is dismissed.
SIGNED at Toronto this 17th day of September 1990.
(signed) MICHEL G. PICHER