BETWEEN:

(the "Company")

AND

(the "Union")

SOLE ARBITRATOR: J. F. W. Weatherill

A. Rotondo

L. Davis

A hearing in this matter was held at Ottawa on April 20, 1982.

The union Statement of Issue and Dispute in this matter is as follows:

There is no joint statement. The company statement varies slightly in that it states that the grievor was suspended "for theft of company property". That was indeed the ground set out in the notice of discipline issued to the grievor.

There would appear to be some doubt as to whether or not the grievor actually removed certain property from the company premises, since he was found with it on a parking lot only part of which, it appears, is company property. The point is not important for this case, however, since for purposes of industrial discipline – at least in the circumstances of a case such as this – the offence of "attempted theft", like that of "unauthorized removal of company property" is essentially the same as that of theft.

There is no doubt as to the true issue, which is whether or not there was just cause for the imposition of a fifteen day suspension in the circumstances to be described.

There is no doubt as to the facts either. The grievor is a Carman, having some twenty years of service. It would appear that he has a clear record. On November 25, 1981, at the end of his shift, he left the shops, taking with him two pieces of one-half inch plywood, each eighteen by twenty-two inches, one of which was in the shape of a frame and covered by a piece of aluminum screen. The grievor had placed these in the back seat of his car when he was apprehended by the company police.

The grievor’s car had been parked that day in the Judge Avenue parking lot, which is located across some tracks and at a certain distance from the shops, and is unsupervised, rather than in the regular controlled-access parking lot, close to the shops, where the grievor usually parks. The grievor gave as his explanation for this that he had some business after work in the area of town near the Judge Avenue lot. I think that that should be accepted, and that it should not be concluded, without more, that the grievor had deliberately parked in an unsupervised area so as to escape detection. It would appear that he left the shops quite openly carrying the material in question. The grievor was open and cooperative with the police officer and appears to have been quite frank in giving his statement at the subsequent investigation.

It was the grievor’s position that he thought the material in question was scrap, that he had worked on it during his lunch period, and that because it was scrap he thought he did not need the authorization of his foreman to remove it.

In fact the material was not scrap, nor, given its dimensions, could it reasonably have been considered such. The company estimated its value at just under twenty dollars. The company’s practice is to place wood cuttings and other material in large mobile boxes, from which larger pieces are removed before the residue is dumped into an outside scrap bin. The grievor stated that he got the plywood from "scrap bundle next to table saw" and the aluminum screening from "scrap barrel in boiler shop next to shears". This material was not yet "scrap", but consisted of usable cuttings, as is clear from the dimensions described above. It would very likely have been salvaged. It was not taken from the outside scrap bin. Even if it had been, it would still have been necessary for the grievor to have obtained permission to remove it.

It is clear that the material had been worked on by the grievor, whose purpose, he said, was to make a filter for his work shop. This work, which would include measuring, cutting, sanding, smoothing and applying the screen would, I have not doubt, taken more than the time available in the grievor’s lunch period, although I make no finding with respect to the company’s estimate that it would take two hours.

From the foregoing it is clear that the grievor took, or attempted to take, company property having a not insubstantial value and which was not scrap. He sought no authorization to do so, although he knew that the removal of company property or the unauthorized use of company facilities were serious matters.

In many cases, attempted theft has been considered grounds for discharge. Having regard to all of the circumstances, however, including the grievor’s long service and good record, the company imposed a fifteen-working-day suspension. This was similar to the penalties which had been imposed in certain comparable cases, although there were also cases where employees had been discharged for outright theft.

In the instant case, there is no doubt that what the grievor did was wrong, and subjected him to discipline. A period of suspension was an appropriate penalty in all of the circumstances and I do not think it can be said that a fifteen-day period was excessive.

There was, as, article 28 of the collective agreement requires, an investigation held in this matter, of which the grievor had proper notice, and where he was assisted by a union representative. Article 28 was complied with. The questioning of the grievor by the police officer at the time he was apprehended was not the "investigation" called for by article 28, and indeed it is contemplated by that article that "on the spot" inquiries may be made in appropriate circumstances, such as those which occurred here. There was, then, no procedural violation which would affect the matter.

For all of the foregoing reasons, the grievance must be dismissed.

DATED AT TORONTO, this 22nd day of April, 1982.