SHP - 53
IN THE MATTER OF AN ARBITRATION
BETWEEN
Canadian National Railway Company
(the "Company")
AND
DIVISION NO. 4, RAILWAY EMPLOYEES' DEPARTMENT - AFL/CIO
(the "Union")
RE:
GRIEVANCE OF S. M. KAHLER
SOLE ARBITRATOR: J. F. W. Weatherill
APPEARING FOR THE UNION:
J.W. Asprey
APPEARING FOR THE COMPANY:
P.A. McDiarmid
A hearing in this matter was held in Montreal on June 14, 1978.
AWARD OF THE ARBITRATOR
The grievor, an employee of some six years' seniority and classified as a Carman, was discharged in November 1977, for accumulation of more than 60 demerit marks. At the time of his discharge, the grievor's record showed some 65 demerits. 55 demerits had already accumulated on the grievor's record, and are not now subject to question. 10 demerits were, however, assessed just prior to the grievor's discharge, and it was by reason of the addition of those 10 demerits to his record that the grievor was discharged.
If the 10 demerits were properly assessed, then it would appear that there was just cause for discharge and the grievance would be dismissed. If, however, the last 10 demerits ought not to have been assessed, then the grievor's record would stand at 55 demerits, and he ought not to have been dismissed. The particular issue in the instant case, then, is whether the grievor was properly assessed the 10 demerits in question.
The grievor was assessed the 10 demerits in question for "conduct unbecoming an employee" of the Company. Such conduct was foundry reason of the grievor's having been convicted for shoplifting. On October 31, 1977, the grievor did in fact plead guilty to a charge of theft under $200.00, and was convicted and fined. It appears that the grievor had stolen certain goods' from a Canadian Tire Company store in Belleville, Ontario. What must be determined in this case is whether that offence constituted as well an industrial offence for which the grievor was properly subject to discipline by the Company.
There is, in my view, no issue here of "double jeopardy". The fact that the grievor has been punished, by way of a fine, for his criminal offence has nothing to do with the question whether or not he is subject to discipline by his employer. That depends entirely on the nature of his action in relation to his employment situation. As is stated in Brown and Beatty on Canadian Labour Arbitration at p. 292: "... depending on the circumstances and context in which the grievance arises, the nature of the employer's operations and the character of the conduct complained of, the same off-duty conduct may or may not expose an employee to disciplinary sanctions".
In the instant case the grievor was, as has been noted, a Carman. His offence did not directly or indirectly affect his employer as such. It was not related to his work and was not committed in the course of his employment. The Company argued that because of its status as a major employer in the community, the conviction of one of its employees would reflect badly on it. Such an argument might be valid with respect to some employers' operations (the employer here does not argue from the nature of its operations, but rather from its general standing in the community), but there is nothing in particular about the nature of this employer's operations, or the grievor's role in them which would support any direct relation between that and his criminal offence. That the conviction of the grievor would somehow affect the Company's reputation seems to me, in the× circumstances of this case at least, to be a highly speculative proposition. If the public had any knowledge of the matter, the opinion would, one supposes, more probably be that such incidents are bound to arise where there is a large number of persons in the employment force. In any event, the material before me is to the effect that the grievor made no public disclosure, in the criminal proceedings, of who his employer was.
In the General Spring Products case (1968), 19 L.A.C. 392, the grievor had, as here, been convicted of theft quite unconnected with his employment. It was said, at pp. 395, 396 of the award that:
In the instant case, the act for which the grievor was convicted did not detrimentally affect the production of the plant or management operations or the safety of the employees or of Company property or the general discipline in the plant or matters of a similar nature. No doubt the fact of the grievor's conviction would indicate to the Company and to the community at large that the grievor was not a man of good character. The Company, however, is not the custodian of the grievor's character, and while there may no doubt be some jobs in which the character and reputation of the employee is an important element, the grievor's was not one of them.
The grievor was hired by the Company through the good offices of the John Howard Society. Co-operation with this organization is, as the Union is frank to acknowledge, a mark of the Company's good citizenship, and is to be admired. Having hired the grievor, however, it is incumbent on the Company to treat him in the same fashion as any other employee. Certainly this is so under the collective agreement which the parties have recently made. While the previous record of the grievor may quite reasonably cause the Company to keep him under surveillance, it is not in itself a ground for discipline. The same must be said of the conviction of the grievor for an offence not related to his employment. It would seem that the grievor is a man of weak character who needs to be watched. To say this, however, is not to say that he is, per se, an unsatisfactory employee. In being convicted, he has not, in the circumstances of this case, broken any rule, written or unwritten, relating to his employment with the Company.
The same considerations apply in the instant case. There is, indeed, a close analogy between that case and this, because there the grievor had been hired through the good offices of the John Howard Society (that is, it may be concluded that he had a criminal record) while here the grievor had already been disciplined, by the assessment of 40 demerits for theft of Company property, namely railway ties. In neither case does consideration of this, previous misconduct affect the nature of the events giving rise to the recent discipline. The offence here in question was not, in itself "Company-related", and it does not become so by virtue of the existence of the grievor's past record.
It is, accordingly, my conclusion that there did not exist just cause for the assessment of discipline against the grievor. This determination is made, of course, having regard only to the circumstances of the particular case. It is therefore my award that the grievor be reinstated in employment forthwith without loss of seniority or other benefits, and with compensation for loss of earnings. The grievor's discipline record should be revived as of the moment immediately preceding the assessment of the discipline in question.
DATED at Toronto, this 23rd, day of June, 1978.
(signed) J.F.W. Weatherill
Arbitrator