IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
THE CANADIAN DIVISION BROTHERHOOD OF RAILWAY CARMEN OF THE UNITED STATES AND CANADA
IN THE MATTER OF THE GRIEVANCES OF J. COLLINS AND D. J. FERGUSON
SOLE ARBITRATOR: J. F. W. Weatherill
There appeared on behalf of the Union:
S. A. Horodyski
There appeared on behalf of the Company:
S. A. MacDougald
A hearing in this matter was held at Montreal on September 4, 1986.
The Joint Statement of Issue in this matter is as follows:
The grievors were employed as Carmen on the 0001 to 0800 shift. At approximately 0100 hours on January 22, 1986 they were apprehended by a CN Police constable while they were filling a five gallon gas can at a Company gasoline pump. A search of Carman Collins personal truck revealed two more gas cans containing seven and one half gallons of gasoline. A search of Carman Ferguson’s personal automobile revealed one gas can containing five gallons of gasoline.
The Company conducted an Investigation into the matter during which both grievors admitted to theft of the gasoline for personal use. On February 21, 1986 the Company discharged the grievors for theft of gasoline.
The Brotherhood contends that the Company unjustly dealt with the grievors because there were mitigating factors which warranted a lesser penalty than discharge. The Company disagrees and has declined the appeal. There is no dispute that the grievors stole or assisted in stealing Company gasoline. The only issue in dispute is the severity of the discharge penalty assessed the grievors. The Brotherhood requests that the discharge of the grievors be reduced to a lesser penalty.
At the time of the incident in question, both grievors had clear records. Mr. Collins had some six years service, and Mr. Ferguson somewhat less than five.
There is no doubt that the grievors put gasoline from the Company’s pump into their own gasoline cans. I would not conclude that they had brought their gasoline cans onto the Company premises for the purpose of stealing gasoline – I think it is natural that in that location and at that time of year they would have gasoline cans in their vehicles – but there is no doubt that at the time when they were at the Company pump to fill a Company vehicle, it occurred to them to steal Company gasoline for their own purposes, and that they quite deliberately went and got their own gasoline cans, and filled them. They were surreptitious about it, and sought to disguise what they were doing when they were aware that a Company police officer was in the area.
When questioned about the fact that cans of gasoline were found in their vehicles, the grievors at first denied having taken any, and it appears they had agreed between themselves to fabricate a story. The story did not hold long, however, and the grievors then admitted what they had done. At the subsequent investigation of the matter, however, the grievors each frankly and contritely recognized their guilt.
It was said that in Mr. Ferguson’s case, the offence was committed on the spur of the moment as a result of strong emotional stress brought on by marital discord. There is no evidence to show that any stress of this nature was of such a degree as to have rendered the grievor incapable of the normal exercise of judgment. While, as I have noted above, I would not find that the offence was one which had been planned for some time, so that it was a "spur of the moment" offence in the sense that the idea of committing it seemed to arise at the time the opportunity arose, it was then quite consciously and deliberately carried out.
Mr. Collins stated that his own vehicle was low on gas. While that was no doubt so, it was not seriously suggested that he would not have been able to drive the relatively short distance to his home, or to a nearby service station at the end of his shift. There simply did not obtain in this case the sort of circumstances which were considered in the Gilbert case (February 10, 1986) as mitigating the penalty imposed. In the instant case, there was a conscious act of theft, not forced, or felt to be forced, by outside circumstances.
In the East General Hospital case, 9 L.A.C. (2d) 311 (Beatty), the following appears, at pp. 322-3 of the report:
In sum, when viewed against the criminal sanctions for the same misconduct, reflecting as they do society’s mores, we cannot subscribe to the jargon of axiom and uphold the discharge of an employee who on one occasion misappropriates some property of nominal value to his own use. Such a sanction in a case such as this, given the age of the grievor and the prevailing conditions of the employment market, would be simply out of all proportion to and fly in the face of the consequences generally recognized as appropriate by society at large.
It is, I think, the case that most employees recognize that if they steal or attempt to steal their employer’s property, they run the risk of a very heavy disciplinary penalty, which might well include discharge. It is not, I agree, "axiomatic" that discharge must be the penalty for theft, and some cases have seen the reinstatement of employees found to have committed theft of their employer’s property. Those have, generally, been cases of what has been found to be "aberrational" conduct, in special circumstances. In determining whether a disciplinary penalty is within the range of reasonable disciplinary responses to the situation in any particular case, however, the question is not one of deciding whether the grievor might be "induced to conform to the accepted norms of society" (see the East General Hospital case, at p. 321). The question, rather, is whether or not having regard to all of the circumstances, a particular employer is to be ordered to re-employ a particular employee. What might be felt to be a relatively minor offence against society and to call for a relatively minor penalty under the criminal law (as is suggested in the East General case), may quite properly be considered a very serious matter indeed in the context of a particular employer-employee relationship.
Although it may be that in each of the cases before me this was the only occasion on which the grievor had stolen or attempted to steal the employer’s property, these are nevertheless cases of deliberate acts of theft, at first attempted to be concealed and for which no special considerations show that what was done was somehow understandable or excusable, at least to some extent. In my view, the discharge of the grievors in the circumstances of this case did not go beyond the range of reasonable disciplinary responses to the situation, and was for just cause.
For all of the foregoing reasons, the grievances are dismissed.
DATED AT TORONTO, this 15th day of September, 1986.
(signed) J. F. W. Weatherill