IN THE MATTER OF AN ARBITRATION
VIA Rail Canada Inc.
Canadian Division Brotherhood of Railway Carmen of the United States and Canada
IN THE MATTER OF THE GRIEVANCE of M. O. SHAW
SOLE ARBITRATOR: J. F. W. Weatherill
There appeared on behalf of the Union:
There appeared on behalf of the Company:
A hearing in this matter was held at Montreal on December 18, 1986.
The Joint Dispute and Statement of Fact in this matter are as follows:
Dismissal of Coach Cleaner M.O. Shaw from the services of the Corporation effective August 7, 1985, for "attempted break and enter, dinette car 20224 (Amtrak), Spadina Coach Yards, July 2, 1985 and possession of stolen property".
Statement of Fact
On July 2, 1985, Coach-Cleaner Shaw was observed by a CN Police Officer in the kitchen area of Amtrak Dinette Car 20224 in possession of a pry bar. He was not authorized to be on board this train.
He was approached by the Police but fled from the train on foot, finally being apprehended one-half mile away. He was questioned by the police and his locker was searched revealing several articles that were not rightfully his.
An investigation was held on July 11, 1985, and on August 7, 1985, Mr. Shaw was dismissed. On September 13, 1985, the Brotherhood appealed the dismissal at Step II of the grievance procedure on the grounds that a) the Corporation failed to establish that Mr. Shaw did attempt to break and enter and that he was in possession of stolen property, b) that the investigation was invalid, c) that the investigation was unfair, and d) that Mr. Shaw was discriminated against. The Corporation declined the Brotherhoodís appeal on November 6, 1985 on the basis that Mr. Shawís culpability had been established, that the investigation was valid, impartial and fair and that there was no discrimination. The Brotherhood disagreed with the Corporation position and requested arbitration.
The grievor, who was hired by Canadian National on April 19, 1984, and who transferred to VIA Rail on June 28, 1985, worked at all material times as a Car Cleaner. On the night in question he worked on the 2300Ė0700 shift. Apparently not able to perform his own assigned work of vacuuming cars because other work on the cars had yet to be completed, the grievor was, as the Union puts it, just "mousing", or keeping out of the way, at the time in question. He went into train 97, which was without power and was not part of his assignment. As the grievor put it in his statement, he was walking through looking for a friend. The grievor also stated that as he was going through one of the cars a pry bar on one of the seats hit him on the knee, and was knocked to the floor. He picked it up, intending, he said, to put it in a safer place, although he continued to carry it with him to the end coach "because the train was without lights and it made me feel more secure". The question which I think naturally arises as to that is, Why would the grievor go into the darkened train in the first place if he was "insecure"?
The grievor, according to his statement, "came to the Dinette and I noticed the top part of the cabinet was open and I entered the kitchenette and I looked around for about a minute. I decided to get out of there and did, at this time I was told I was under arrest. I panicked and ran Ö". The police report (and although the police officers were present at the hearing no question was raised as to the Inspectorís report), states that the grievor was attempting to pry off the securing door of the liquor cabinet in the dinette car. As noted in the Joint Statement, certain items were found in the grievorís locker. These included a can of American beer. The grievorís account of this is that it was given to him by a fellow-employee. The fellow-employee filed a statement confirming that, saying that he had found two cans of beer in a car in which he was working and that he had given one to the grievor. I accept that account of the grievorís possession of the can of beer, but it remains that he was improperly in possession of beer, and the most probable conclusion is that it was stolen beer.
As to the grievorís presence in the dinette car and his activities there, the most probable conclusion to be drawn from the material before me is that the grievor was not simply keeping out of the way and satisfying his curiosity until he was able to get to his regular work: rather, he had improperly proceeded to a car containing certain locked property which he was attempting to steal when he was interrupted by the police, from whom he fled. Any other conclusion would, in my view, be quite unrealistic.
It may well be, as the Union contended, that not all property in rail cars which ought to be locked is properly locked, and that, as certain of the Union statements suggested, not all employees do their jobs properly. That does not affect the conclusion that in this particular case, and on the evidence relating to this particular car and to the grievorís activities, the grievor was attempting to break into a locked cabinet.
It is clear that the investigation was a valid one, and was conducted by the Employer as required by the collective agreement. The fact that certain reports, including the transcription of the grievorís statement, are on CN rather than VIA stationery has no significance, and is easily explained by the fact that the changeover of the operations from CN to VIA was a recent one. In any event, the investigation was VIAís responsibility, and was carried out by it or on its behalf.
The investigation was fair and impartial, as required by the collective agreement. The grievor acknowledged as much at the conclusion of the investigation. It is said that the Company did not carry out supplementary investigations with respect to persons mentioned as having some knowledge of the matter, but there was no need for that. The report of the fellow-employee referred to above, for instance, is not in doubt, and there was no need to conduct any investigation in that respect.
It is said, as well, that other cases have been treated differently. The material before me, however, certainly does not establish that there has been a consistent pattern of treatment of substantially similar situations in some different way. In this respect, I would remark that I consider the most serious aspect of this case to be the grievorís improper presence in the dinette car, attempting to open a locked cabinet with a pry bar. The fact that a deck of "salvaged" playing cards was found in his locker, or even that he had in his possession what would appear to have been a can of stolen beer might indeed not in itself constitute just cause for discharge. The attempt to break into the locked cabinet is a more serious matter.
The grievor was tried on criminal charges, and was acquitted. The matter of industrial discipline is a separate one between the employee and his employer, and involves the employment relationship, as distinct from the duty of the citizen not to violate the Criminal Code. The imposition of an industrial penalty, including discharge, in respect of a matter for which criminal charges may also be involved is not a case of "double jeopardy", any more than it would be if a convicted (or acquitted) thief were sued by the person whose property he took, and who wanted it back. As well, the standard of proof in the two sorts of cases is different: in criminal cases, the offence must be proved beyond a reasonable doubt. In civil cases, the standard of proof is that of the balance of probabilities. In the instant case, that balance is clear: on the material before me, the most probable explanation of what occurred is that the grievor was using a pry bar to attempt to open a locked cabinet in a car in which he ought not to have been. This was an offence for which the grievor was subject to discipline.
It was alleged that the Company and its officers were biased against the grievor on account of his "race and family status". Such a charge is, as the Union properly says, quite serious. There is nothing at all in the material before me to support it.
The grievor was subject to discipline for the conduct described. Having regard to the nature of the offence and all of the circumstances surrounding the incident, it is my view that there was just cause for discharge in this case. Accordingly, the grievance is dismissed.
DATED AT TORONTO, this 12th day of January, 1987.
(signed) J. F. W. Weatherill