SHP 265




(the "Company")



(the "Union")


SOLE ARBITRATOR: J. F. W. Weatherill



R. Hanlon


L. Caron


A hearing in this matter was held in Montreal on March 22, 1989.




The Dispute and Joint Statement of Issue in this matter are as follows:


Appeal of discipline assessed to the record of Carman F. Saliani of MacMillan Yard, Toronto, Ontario.


Carman F. Saliani’s discipline record was assessed 25 demerits for unauthorized possession of used railway ties (CN property) and for being away from his assigned work area without permission on May 2, 1987.

The Brotherhood contends Carman Saliani provided an adequate explanation for his possession of the railway ties. The Brotherhood further contends the Company violated Rules 28.1 and 28.2 of Agreement 12.35 when it assessed discipline to the record of Carman Saliani for being away from his assigned work area without permission, because this subject was not clearly indicated in the notice to appear for investigation.

The Brotherhood requests the removal of the discipline assessed. The Company has declined the Brotherhood’s request.

There is no substantial dispute as to the facts. The grievor is a Carman, and at the time of the incident in question had something less than eight years’ service with the company. His discipline record stood at five demerits at the material time.

On the day in question the grievor was scheduled to work the 0800 - 1600 shift. He drove to work that day in a borrowed pick-up truck. There was a canopy top covering the rear of the truck. The grievor punched in at the Car Shop at 0745 and then drove in the truck to the Receiving Yard, where his assignment was to perform certain train inspection duties. There is no suggestion that the grievor did not perform his assigned duties that day.

At about 1500 hours, the grievor left his assigned work area, without permission. Although the union did not press the point at the hearing of this matter, I would agree that the notice of investigation issued to the grievor did not indicate that the investigation would deal with that matter. There being no suggestion that the grievor had not completed his assigned duties, I would have some doubt as to the seriousness of the offence of leaving without permission in this case, but in view of the conclusion which I have come to on the matter of unauthorized possession of company property and the appropriate penalty therefor, I do not consider that the matter of leaving the workplace without permission need be dealt with further here. require permission to remove 4 what he thought was scrap from company premises.

In my view, it was unreasonable for the grievor to believe, if in fact he did, that the used railway ties were scrap. It was not suggested, for example, that the company commonly treated such material as scrap, and from the material before me, the contrary was the case. It was, I think, even more unreasonable for the grievor to consider, if in fact he did, that he could remove company property without permission, or that he could rely on his own determination as to what was scrap and what was not. There are posted rules with respect to the removal of company property, and there is a procedure to be followed of which employees should be aware. No doubt the posted rules to that effect are not given much scrutiny by employees, and it may be that the procedure to be followed is set out in rather fine print. However all that may be, it should be obvious to any reasonable employee that it is not for him or her to determine what is scrap and simply remove it from company property for their own benefit. What the grievor did was clearly wrong, whether or not it amounted to a criminal offence, and the grievor was subject to discipline for it.

It is noteworthy that when the grievor found out, as he says, that he would require permission to remove the railway ties, he did not then seek such permission, nor did he return the ties to the Maintenance of Way Yard. He merely unloaded them on the parking lot. That is simply not the act of a responsible person.

In all of the circumstances, I think it is clear that the grievor was in unauthorized possession of company property: he of course ought to have known that that was wrong, and it is my conclusion, having regard to all of the material before me, that he did in fact know that he was doing something improper. There was, I find, just cause for the imposition of discipline, and even if the element of unauthorized absence from the work area not be considered, it is my view that the assessment of 25 demerits did not go beyond the range of reasonable disciplinary responses to the situation.

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

DATED AT TORONTO, this 30th day of March, 1989.

(signed) J. F. W. Weatherill