The joint statement of fact and issue in this matter is as follows:

The grievors, whose classification was that of Machinist, were employed in the Tool Room of the Locomotive Shop at Angus shops, and worked on the 3:30 p.m. to 11:30 p.m. shift. They were the only two regularly assigned Machinists in the Tool Room on the afternoon shift. They did not have direct supervision, but reported to a supervisor in another department of the Locomotive Shop.

At approximately 6:00 p.m. on January 10, 1980, the grievors were discovered in the business car "Assiniboine" which had been spotted for repairs in the Passenger Car Shop at Angus. The grievors had no work to perform there, and it was not a place where they were authorized to be.

The car had been in the Passenger Shop for about one month, and during most of that period, while repairs were underway, the silverware, crystal, china and cutlery had been removed and placed in a vault for safekeeping. On January 9, in preparation for the car's departure on January 11, those items had been returned to the car, and the Car Attendant, Mr. Bélanger, recommenced living on board.

At about 5:45 p.m. on January 10, Mr. Bélanger and Mr. Simon, the Cook assigned to the car, left the "Assiniboine" by the observation door for a short walk. Having left Mr. Simon to make a telephone call, Mr. Bélanger returned to the car at approximately 6:00 p.m., as has been noted, and discovered the grievors. No question of identity arises.

When Mr. Bélanger entered the car he passed by the kitchen and hearing a noise, looked in by the west door. He saw a man near the refrigerator and when he questioned him, the man ran out the east end kitchen door and out of the car by the observation door, at the opposite end of the car. Mr. Bélanger then heard a noise in the steward's room, and looking in there saw a man on his knees on the floor, with a travelling bag open in front of him, and some crystal glasses wrapped in yellow paper napkins of the sort used by the Car Attendant to wrap crystal. Mr. Bélanger put his foot on the end of the bag, and the man at once slipped by him and ran out of the car.

Mr. Bélanger then put on the light in the room, and discovered a number of the car's crystal glasses in the bag, and a joint of roast beef, which had been taken from the refrigerator, on the bed.

The grievors statements as to what took place are not entirely consistent with that of the Car Attendant, nor are they quite consistent with each other, each of the grievors apparently considering the other to be somehow more responsible for what occurred. Thus, Mr. Paquette stated:

Mr. Teasdale, who denied having previously shown the glasses to Mr. Paquette, stated:

The grievors deny any intention to steal anything, although the presence of the roast of beef on the bed is awkward to explain and the fact of their having brought a travelling bag with them – at the time when the valuable items had just been returned to the car, and the staff had just stepped out - is more than suggestive. Whatever the grievors' definition of "theft" might be, there can be no doubt that they meant to remove valuable items from the car, and were in the process of doing so when they were caught. It cannot be said that there is any significant distinction between them as to guilt or innocence; they were acting together.

Mr. Paquette's statements that he "didn't think it was a CP car" and that he was just going to bring the glasses (there were twenty-one of them) "into the shop and use them to drink out of" are simply not to be taken seriously. Even if it be admitted that Mr. Paquette somehow thought the car or its contents belonged not to Canadian Pacific but rather to one of its customers, it was just as wrong for him to take such property for his own use, whether at work or otherwise.

What occurred was, in my view, a deliberate attempt at theft of company property. There are here none of the factors which might persuade an arbitrator that the particular circumstances of the offence and of the grievors are such as to establish that what occurred was simply a momentary lapse in the conduct of honest men.

None of the factors which led to a reinstatement (without compensation) in the Ford case, 3 L.A.C. (2nd) 166, for example, is present here.

In my view, the penalty of discharge was appropriate in the circumstances of this case, and there was just cause for the disciplinary action taken by the company. Accordingly, the grievances are dismissed.

DATED AT TORONTO, this 28th day of July, 1980.

Arbitrator