(the "Company")

AND

(the "Union")

SOLE ARBITRATOR: J. F. W. Weatherill

A hearing in this matter was held at Montreal on March 16, 1984.

The grievor, whose name appears on the company’s records as David Allan Davis, was hired by the company an October 9, 1979, as a Coach Cleaner He passed his probationary period, and at the times material to this case, was classified as a Carman Trainee. There is no evidence of any disciplinary record.

The grievor was discharged effective January 11, 1983, for "theft of materials consigned to the company’s care". A grievance was filed but the union was unwilling to proceed to arbitration in the matter which determination was the subject of complaint to the Canada Labour Relations Board pursuant to section 136.1 of The Canada Labour Code. That complaint was successful, and on December 29, 1983, the Board ordered that the matter be referred to arbitration.

The matter is before me pursuant to the order of the Canada Labour Relations Board The issue, which is quite distinct from that which was before the Board, is whether or not the grievor was discharged for just cause. In the instant case, two particular questions arise: did the grievor steal material consigned to the company’s care, and if so, was the penalty of discharge justified in the circumstances?

There is no doubt – the grievor frankly acknowledged it when enquiry was made – that the grievor did in fact remove "material consigned to the company’s care", being an aluminum builder’s number plate for LRC locomotive unit 6911, from the company’s worksite at Willowbrook maintenance facility. He took the plate to a railway hobby shop in Toronto: where it appears it was offered for sale. The grievor denies that he had intended it to be offered for sale.

The grievor was charged with possession of property of a value not exceeding two hundred dollars knowing it to have been stolen. The matter was heard in Provincial Court on March 31, 1983. The charge was dismissed: the Judge noting that the charge had to be made out beyond a reasonable doubt; and that the grievor was entitled to the benefit of the doubt on the evidence before the Court.

In the instant case, of course, the issue is a different one from that which was before the Court, and the standard of proof with respect to the common aspect of the matter whether the grievor stole property, or took it knowing it to have been stolen – is also different. In these proceedings the onus is on the company to show, on the balance of probabilities that its allegations against the grievor are true. Having regard to the nature of an allegation such as one of theft, both courts and arbitrators have required that clear and cogent evidence be adduced. It is against the balance of probabilities standard and in the light of the clear and cogent evidence requirement that the instant case is to be decided.

It may be well to deal at this stage with the matter of the grievor’s use of two names. It would appear that throughout most of his life, the grievor believed that his legal name was Davis, and that his stepfather of that name had adopted him when he was five years old. The grievor lived under that name, and, as has been noted, that is his name according to the company’s records. In October 1982, certain events involving the grievor’s family led to his discovery that he had not been legally adopted, and that his legal name was still Crouch. He then began to use that name, and took steps to have the name appearing on certain records, and in particular on his driver’s licence, changed to Crouch.

There is in evidence what appears to be a receipt, issued by the hobby shop to which the grievor took the builder’s plate from unit 6911, showing the plate in question, as well as a switch lock, as having been delivered on consignment by "David Crouch", the amount for the builder’s plate being shown as thirty dollars. That document is dated October 30, 1982, by which time, according to his testimony, the grievor was using the name of Crouch, and was taking steps to have various records changed to that effect. He had not yet notified the company of this change, feeling that the company had enough paperwork with respect to him at the time, for he was in the process of moving to the company’s shop at Hamilton, having been displaced from his job at Willowbrook.

While the grievor dealt with the hobby shop using the name of Crouch, I do not conclude that he did so in order to hide his identity and to avoid being traced as the person who had delivered the builder’s plate, to the hobby shop. The matter of the change of the name used by the grievor is not I think, of any great significance to this case, except that the grievor did give misleading testimony, revealed on cross-examination, as to the time when he started using the name of Crouch. In fact, the grievor was, as he admitted, using two names well before October, 1982. He had done so for the purpose of obtaining a second driver’s licence while his first was under suspension for non-payment of a judgement into the Unsatisfied Judgement Fund. The false evidence first given by the grievor at the hearing seriously undermines his credibility, as he admitted.

It was the grievor’s evidence that he found the manufacturer’s number plate in a scrap bin on the company’s premises, and that he considered it to be garbage. He had noticed it in the bin at the end of his lunch period, and had come back to pick it up at the end of his shift, at midnight, some time in mid-October, 1982. He carried it with him from the shop, and later took it to the hobby shop, where he had been a customer for some time, thinking that it would be an interesting addition to their collection of railroad memorabilia. While the plate would have only very slight value as a piece of scrap metal, the grievor recognized that it would have at least aesthetic value – and I consider that he knew it would have a monetary value – to a collector of such memorabilia.

Indeed, it seems clear that the grievor, an obviously intelligent man, familiar with the railroad hobby shop, recognized that the number plate would be a rarity, especially as it came from a recently-manufactured locomotive, as he knew from the nature of the plate and its number. The plate had quite obviously been chiselled away from its mounting in the cab of the engine. The evidence certainly creates the suspicion that the grievor himself had removed it from the cab. The grievor denies doing that, and the evidence, while not removing suspicion from the grievor, does not permit the conclusion that it is more probable than not that the grievor, rather than some other person, removed the number plate from the cab. Whoever did so certainly acted improperly, but the evidence does not clearly link the grievor to that act.

It was the grievor’s evidence that he had not been aware of the company’s rules and regulations which, on the company’s evidence, were posted in several conspicuous places on the premises. The grievor testified that these were obscured or replaced by safety posters. To the extent that there is conflict on this point, I accept the evidence of the company witness. Among the rules is the requirement that "All scrap material must be collected daily and deposited in the place designated for its reception". In any event, the grievor had been in the employ of the company for some years, and ought to have been aware of the regulations, which are of general effect, and are posted at the other locations where the grievor had worked.

It would not, of course, require an explicit rule to make it an offence to take the company’s property. It may be, however, that the taking of scrap would be a less serious matter than the taking of goods or material of more obvious value. It cannot be believed, however, that the grievor really considered "scrap" and "garbage" to be, as he said, the same thing. In some contexts, that may be an acceptable usage, but it is not so, and was clearly not so, in the shop where the grievor worked. Scrap is collected in bins marked "scrap metal only" and is taken to be reclaimed; it has, as an intelligent person of the grievor’s experience would know, a value as raw material. The manufacturer’s number plate involved in this case was of an even higher value than an ordinary piece of scrap. The grievor, I find, recognised therein a piece of "memorabilia" made such before its time by deliberate hands. He could certainly distinguish it from the garbage collected in quite distinct containers.

From all of the evidence, I conclude that, whether or not the grievor himself removed the number plate or had anything to do with its removal from the cab of locomotive 6911, he knew that it was either the company’s property or property consigned to the company’s care (the number plate is an important source of documentation throughout the life of the equipment), that it was in no proper sense "scrap", and that it was wrong to take it. He did take it, and I find that he then took it to the hobby shop for the purpose of resale.

At the grievor’s trial, evidence was given by the clerk at the hobby shop who had received the plate from the grievor. That evidence is not before me in the instant case. It remains, however, that the number plate was presented to a company police officer who went to the shop as being for sale. The grievor’s own account – to the effect that he gave the plate to the shop for use as a decoration – is simply unbelievable, given the grievor’s own recognition of the number plate as being something of value to collectors.

The evidence is, I find, clear, cogent and compelling, and it is my conclusion, on the balance of probabilities, that the grievor did in fact steal the number plate in question, being "material consigned to the company’s care". The grievor, when confronted, did acknowledge taking the number plate, but denied, improperly, as I find, any knowledge that it was of value, or that it was his intention to profit from it. In this respect the instant case may be distinguished from the recent Canada Packers case, 10 L.A.C. (3d) 34 (Larson), where an employee with 28 years’ seniority and a clear record was found to have committed theft of company property but was nevertheless reinstated because he never denied what he had done and never sought to avoid responsibility, and because "He simply wrongly regarded the taking of it as trivial because it was garbage". Such a statement is not to be made in the instant case, for the reasons I have given.

The grievor was clearly subject to discipline, and in my view there was just cause for discharge in the circumstances. The case does not come within the narrow range of exceptions to the general rule that discharge is justified in cases of theft.

For all of the foregoing reasons, the grievance is dismissed.

DATED AT TORONTO, this 23rd day of March, 1984.

Arbitrator