SHP 236




(the "Company")



(the "Union")



SOLE ARBITRATOR: J. F. W. Weatherill



L. Biniaris


M. Lamarche

A hearing in this matter was held at Montreal on March 23, 1988.



The grievor, who was hired by the company in April, 1953, was discharged on April 29, 1987, for unauthorized possession of company material. At the time of his discharge the grievor was a Lead Hand Machinist at the Transcona Main Shop.

The parties filed separate statements of issue in this matter. The union statement is as follows:

On April 6, 1987 Mr. Gitzel attended an investigation concerning the alleged Company tools and materials found in his wifeís cottage.

During the investigation Mr. Gitzel was not given the opportunity to make a presentation on his own defence the way Company proceeded to investigate.

On April 6, 1987 after the investigation Mr. Gitzel was suspended and on April 29, 1987 he was discharged for the above alleged charges.

The Union contends that the Company violated rules 28.1, 28.6 Wage Agreement 12.32 in that Machinist A. Gitzel was not given a fair and impartial investigation The Union also contends that the discipline imposed is too severe considering his age and service with the Company.

The Union requests that Machinist A. Gitzel be returned to service with his full seniority rights and with payment of all Wages and Benefits lost.

The Company has denied the request.

The companyís statement of issue is as follows:

On January 12 and March 26, 1987 the CN Police Officers assisted the Ontario Provincial Police in conducting searches at Machinist Gitzelís property at North Rice Lake, Ontario. The searches resulted in the recovery of a substantial quantity of the Companyís tools and materials.

On April 6, 1987 Machinist Gitzel attended a company investigation concerning the company tools and materials found at North Rice Lake. During the investigation Machinist Gitzel was provided a copy of a letter from the CN Police describing the items found at North Rice Lake. Machinist Gitzel indicated that he wished to contact his lawyer and did not offer additional explanation with respect to the items found at North Rice Lake.

On April 27, 1987 Machinist Gitzel was advised that he was discharged for unauthorized possession of Company property.

The Union contended during the grievance procedure that the Company violated Rule 28.1 of Agreement 12.32 alleging that Machinist Gitzel was not given a fair and impartial investigation. The Union also contended that the discipline imposed was too severe considering his age and service with the Company.

The Union requests that Machinist Gitzel be returned to service with his full seniority rights and with payment of all wages and benefits lost.

The Company denies the Unionís contentions and has declined the Unionís request.

I shall deal first with the allegation that the company was in violation of Rule 28 of the collective agreement. The grievor, as he acknowledged, received proper notice of the investigation, and attended accompanied by a union representative. He advised the investigating officer that he was ready to proceed. The investigating officer then showed the grievor the police report. The grievor agreed that he was the person to whom the report related, but stated that he disagreed with the contents of the report. He had nothing further to add, saying only that he wished to contact his lawyer, who it appears was out of town.

While the grievor would say no more at the investigation, his union representative, on his behalf, did make certain pertinent representations, advising that the grievor had receipts for certain of the items found at the grievorís wifeís cottage, and stressing that the grievor was a long time and valued employee.

That investigation, while brief, seems to me to have been quite proper. The grievor was advised of what was being said against him, and asked, in effect, for his side of the, matter. That is the substantial purpose of the investigation. That particular investigation was brief because the grievor did not wish to say anything of substance. That was his right, but he cannot then be heard to complain that he was deprived of the right to put forward his side of the matter at the investigation. The company did not deprive the grievor of any rights in that respect. In fact, the grievorís union representative did put forward what was, in essence, the case for the grievor on the merits of the matter: that some at least of the items in question in fact belonged to the grievor. The grievorís lawyer, it may be added, wrote to the company both before and after the investigation, so that the company was in receipt of his views prior to its determination to discharge the grievor.

In my view, there was no violation of the provisions of Rule 28 in this case.

On the merits, it is clear that the grievor was in possession, albeit on property title to which was in his wife, of a considerable amount of property apparently belonging to the company. Doubt has been raised as to the validity of the companyís title to some of this property. Thus, the grievor produced what appear to be receipts for his purchase of a saw and a drill, as well as a letter from a scrap dealer to the effect that the grievor was a frequent customer. The grievor also stated that he had purchased some items from the company itself, for a nominal price. The latter statement is unconfirmed, and the company states that its records do not indicate that certain of the tools found on the property were ever taken out of inventory.

Some of the property found was new. There were some twelve bundles of ten packages each of wooden matches Ė no doubt meant to be given away as publicity, but clearly not meant to be given away in bulk to the grievor. There was a package containing twenty-one pairs of new CN cotton gloves. There is no suggestion that they were purchased either from the company or from a dealer. There was, clearly, an obligation on the grievor to explain his possession of such items. That obligation has not been met.

The grievorís explanation that he purchased some of the items found from a dealer is not an improbable one, and while the evidence with respect to such items is unsatisfactory on both sides, the case is sufficiently doubtful in respect of those items that it must be concluded that the case against the grievor with respect to them has not been made out. That sort of explanation, however, if believed or if not disproved, accounts for only some of the items found. For the rest, the grievorís explanation is vague and unsatisfactory. A passenger conductorís step box, it is suggested, may have fallen off a train, and certain new railway ties were said to have been found in a ravine. Those explanations are not satisfactory.

It is quite clear from all of the material before me that most of the items in question were the property of the company, and I so find. With respect to some of that property, the grievor has given an explanation which, if not entirely satisfactory, is not unreasonable and not disproved. The onus is on the company in that respect. With respect to a substantial number of items, however, the grievor either has no explanation or has an unsatisfactory one, and with respect to those items the companyís case is made out. The grievor was, I find, in unauthorized possession of a number of items of company property, representing substantial value. He has given no satisfactory explanation of such possession.

There is no evidence of any current discipline record. In most cases, an employee found in unauthorized possession of substantial company property and unable to give a good account of it, would be subject to discharge notwithstanding that he had no record of prior discipline. In the instant case the union relies on the grievorís age and length of service as factors to be considered. Those are indeed factors to be considered, although where they are relied on, it is then open to the company, in response to such an argument, to refer to past discipline, even where it no longer forms part of the current discipline record.

The grievor was discharged for theft some years ago, being reinstated after a three-month suspension. In the light of that, and of the circumstances of the instant case, considerations of sympathy cannot weigh heavily.

Having regard to all of the foregoing, it is my conclusion that there was just cause for the discharge of the grievor in the circumstances of the instant case. The grievance is accordingly dismissed.

DATED AT TORONTO, this 13th day of April, 1988.

(signed) J. F. W. Weatherill,