SHP - 237



VIA Rail Canada Inc.

(the "Corporation")



(the "Association")



SOLE ARBITRATOR: J. F. W. Weatherill



A. Rosner


K. Pride


A hearing in this matter was held in Montreal on April 19, 1988




This grievance relates to the assessment of 30 demerit marks against the grievor for alleged theft of company property. That assessment resulted in the discharge of the grievor for accumulation of demerit marks.

The Joint Statement of Fact in the matter is as follows:

Mr. Blanchet was charged with throwing two pink sacks over the fence bordering the Corporationís property at the Montreal Maintenance Centre (MMC). He was subsequently arrested by the Montreal Urban Community (MUC) Police who took possession of two pillows as evidence. He was advised to attend an investigation into this matter to be conducted on June 25, 1987. He reported for the investigation. A union representative was present, however, Mr. Blanchet refused to participate without the presence of his lawyer. The investigation was rescheduled for July 3, 1987, which Mr. Blanchet attended and during which he denied throwing the pink sacks over the fence.

Mr. Blanchet was assessed 30 demerit marks for this offence and when added to his discipline record resulted in his having accumulated 70 demerit marks resulting in his discharge.

It is the Associationís position that the 30 demerit marks assessed Mr. Blanchet were unwarranted and they feel that he should be reinstated with all rights and privileges, and that he be compensated for all time lost.

The Corporation has declined the Associationís appeal on the basis that on the "balance of probabilities", Mr. Blanchet is guilty of attempted theft and, therefore, the assessment of 30 demerit marks is justified.

The substantial question in this case is one of identification. At about 2045 hours on June 19, 1987, a Supervisor, Mr. Destrempes, was riding in a van along with two employees when he saw someone throw what appeared to be two pink sacks over the fence which ran along the side of the companyís property. The Supervisor remarked that it looked like the grievor. One of the other employees, who was riding In the front beat with the Supervisor, and who saw someone throwing pillowcases over the fence, said "Are you sure?". The other employee, who was in the back of the van, turned in the direction indicated, and saw someone running away.

The person who ran away ran toward the other side of the signal store. The area through which he ran was too narrow for the van, which then proceeded along she other side of the signal store. At the end of the building, the men in the van then saw a person whom the supervisor testified was the grievor. The employee who had been in the front of the van did not positively identify the person then seen as the grievor, but did testify that it was the same person he had seen at the other end of the stores, throwing the pillowcases. The employee who had been in the back of the van could not testify with certainty that it was the same person (whom he had only seen from behind, running away), but did testify that it was the grievor who was seen on the second occasion. The van proceeded on, and the person in question was observed shortly thereafter in the supervisorsí parking area. The clear result of this testimony, if believed, is that the grievor was seen throwing two pillowcases over the fence and running away, and was then seen again at the other end of the signal store, and shortly thereafter in the supervisorsí parking area. There is really no serious doubt, on this evidence, that the same person was involved throughout.

The Supervisor then continued on in the van, past the coach yard service building, and let the two employees off at the tool store shop. He then drove a short distance to the shop foremanís trailer, to report the incident. While waiting outside the trailer for the shop foreman to come, the Supervisor saw the grievor speaking to one of the employees who had been in the van. That employee reported that the grievor had asked him if he had been seen.

After speaking to the Foreman, the Supervisor, as he had been instructed to do, returned (together with another Supervisor), to the area where he had seen the sacks being thrown, to look for them. As he approached the area, the Supervisor saw the grievor walking away from the signal store, not far from the spot where he had been seen on the second occasion noted above. The two Supervisors continued on to the fence, but were unable to locate the sacks or pillowcases. Later that evening two pink pillows were found by the police. They were under a baggage car, a few feet from where the pink sacks had been thrown over the fence.

From the material before me, it would appear that there was sufficient time for the grievor to have returned to the area of the fence and to have hidden the pillows, before being observed returning toward the area where he would take his break. The grievor would appear to have taken his break early, and agreed that he might have been in the area of the Supervisorsí parking lot at the time he was seen there. He would have had no particular business there, but the area was not far off a route the grievor might have taken (not, it would appear, the most direct, although the grievor described it as a shortcut), from his work site to the area where he would take his break and buy a drink from the drink machine. The area by the fence at the end of the signal store, however, is an area with respect to which it would be difficult for the grievor to explain his presence.

At the supplementary investigation conducted by the company, the grievor stated that he never went to the area by the fence, and that the Supervisor and the others who reported having seen him there as described above, must have been confused. The grievor added that the Supervisor was using him as a scapegoat, and said that before that the Supervisor had threatened him. While the existence of some malice on the part of the Supervisor is suggested, it is not established. There is no suggestion of any reason why the two employees should concoct a story, or assist the Supervisor in concocting a story, especially one of that nature. The evidence as to what was done is clear, and the identification of the grievor as the person who did it is also clear. I think that it must be concluded, on the balance of probabilities, that the grievor did commit the offence for which the penalty in issue was imposed, and I so find.

It was argued that the grievor was not given a fair and impartial investigation, as the collective agreement requires. It is said that he was asked leading questions based on falsehoods, that the two employees were not questioned and that the employer relied only on the report of the Supervisor. The grievor was indeed asked leading questions, in the sense that it was put to him that he had been seen in the areas described above, and that he had been seen throwing two pink bags over the fence. That is, the company put to the grievor the conduct which it considered might lead to discipline, and asked the grievor for his version of the matter. In my view, that sort of questioning is just what the collective agreement contemplates. What was put to the grievor did not appear to the company to be false, but was the report of the Supervisor, in which the statements of the two employees are set out. In substance, the whole of the case presented by the company at the hearing was presented to the grievor at the investigation, and the grievor responded to it. The grievor asked if there were other reports on file, and was shown the report of the Foreman, Mr. Rainville. There do not appear to have been any written reports by the two employees: the substance of their evidence was set out in the Supervisorís report, which the grievor was shown, and they gave evidence at the hearing, which was proper. The grievor indicated, at the investigation, that he felt he was under duress, but from the report of the investigation, that could not be said to have been the case.

On the material before me, it is my conclusion that the matter was properly investigated, in accordance with the requirements of the collective agreement. For the reasons set out above, there was, I consider, just cause for the imposition of discipline, and for the offence in question the imposition of thirty demerits was not excessive.

The grievor is a Pipefitter, and was hired by the company in February, 1978. He has been disciplined on a number of occasions for various offences. It would appear that, due to the passage of time without formal discipline, the grievor had no accumulated demerits until a short time before the incident in question. He was, however, assessed 40 demerits in respect of an incident of dangerous driving. It was the unionís position that the 40 demerits were still subject to appeal, while it was the companyís position that the grievance in that respect had been allowed to lapse. While certain brief submissions were made in that respect, I do not consider that the question of the arbitrability or of the merits of any grievance relating to the 40 demerits is before me in the instant case. Accordingly, in dismissing this grievance, I do not necessarily make any final disposition in the matter of the grievorís discharge. I deal only with the matter of the 30 demerits.

For the reasons set out above, there was just cause for the imposition of 30 demerits in respect of the incident in question, and the grievance in that regard is accordingly dismissed.

DATED AT TORONTO, this 3rd day of May, 1988.

(signed) J. F. W. Weatherill,