SHP 309

IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN PACIFIC LIMITED

AND

INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP BUILDERS, BLACKSMITHS, FORGERS AND HELPERS

GRIEVANCE RE BOILERMAKER R.S. BOIVIN

 

 

SOLE ARBITRATOR: M. G. Picher

 

 

There appeared on behalf of the Union:

A. Rosner Executive Secretary, C.C.R.S.U.

Pierre Watson System General Chairman (CP),IBB&B

R. Loiselle General Chairman (CN), IBB & B

 

 

There appeared on behalf of the Company:

A.Y. deMontigny Supervisor,Personnel and Labour Relations, Mechanical Department

C. Thibault Personnel Development Officer, Angus Shops

R. Aubin Shop Supervisor, Angus Shops

R. Larkin Area Supervisor, Angus Shops

G. Bilodeau Area Supervisor, Angus Shops

D.J. David Labour Relations Officer, Montreal

 

A hearing in this matter was held in Montreal on May 3,1990.

 

AWARD

This is a grievance against discharge for the accumulation of demerits, as well as for two specific infractions leading to that result. The Joint Statement of Fact and Joint Statement of Issue filed at the hearing are as follows:

DISPUTE

Discharge of Boilermaker S. Boivin for accumulation of demerit marks.

JOINT STATEMENT OF FACT

On December 16, 1988, three Form 104's were transmitted to the grievor, assessing discipline as follows:

1. Ten (10) demerit marks (pour s'être présenté au travail en retard après la pause repas le 22 septembre 1988).

2. Twenty (20) demerit marks for (s'être approprié frauduleusement du matériel de la compagnie selon les déclarations prises les 21 et 22 novembre 1988).

3. (Votre dossier est fermé pour accumulation de plus de 60 mauvais points.)

At the time of discharge, the grievor's record stood at 35 demerit marks.

JOINT STATEMENT OF ISSUE

The Union contends that the assessment of 10 demerits on the charge of returning late from his break was excessive under the circumstances and should be replaced with at most a warning.

The Union further contends that the grievor is entirely innocent of the charge of fraudulent appropriation of company material, and the discipline accorded therefor ought to be rescinded. The Union contends, in any event, that there was not just cause for discharge under the circumstances, and requests that the grievor be reinstated with full compensation and without loss of rights and benefits.

The Company denies the Union's contentions and claims.

The Arbitrator deals firstly with the allegation of theft for which the grievor was assessed twenty demerits. The material establishes that the grievor, Mr. Serge Boivin, was employed as a Boilermaker on the afternoon shift at Angus Shops. On September 15, 1988, a boilermaker assigned to the day shift reported that a toolbox assigned to him had been forcibly opened by burning the lock off and that the removable tray of tools in the box had been taken. When the afternoon shift, the only other shift then working, came on duty Supervisor K. Larkin, who was then responsible for the grievor's work area, advised all of the employees under his supervision that the contents of the toolbox were missing and indicated that investigations would be ongoing. Shortly thereafter, Mr. Larkin observed the grievor acting suspiciously and, hastily closing and locking a locker as he noticed his supervisor's presence. Later Mr. Larkin noted that the name which had been inscribed on the locker on a sheet of masking tape had been removed. According to his account at approximately 7:30 p.m. following the dinner break, Mr. Larkin asked Mr. Boivin if he had a tool locker in the immediate area. The grievor answered in the negative. He then pointed to the purple coloured locker which he had observed the grievor closing earlier and from which the name tag had been removed and asked if it was his. Again the grievor responded in the negative. When Mr. Larkin then asked Mr. Boivin if he had a key to that locker, the grievor replied that he did.

Thereafter in the presence of Mr. Larkin and Mr. M. Bilodeau, another area supervisor, Mr. Boivin opened the locker. Within it was found a red toolbox from which the lock had been burned off and a tray identical to the one which was found to be missing from a tool box earlier in the day. When Mr. Larkin asked the grievor to explain the tools he responded that they belonged to Mr. Alain Fortin, an employee who had previously used the locker and who had resigned his employment a month previous, and also to a Mr. Limoges an employee who was then absent on sick leave, who had stored some tools in the locker. It appears that he did not realize that the red tool box in the locker belonged to Mr. Limoges, in fact, until the supervisors found the name of Mr. Limoges on a piece of paper in the box. Under later questioning, when asked why he had removed his name from the locker, Mr. Boivin confirmed that he had removed a name sticker from the locker on that day, but that the name was Mr. Fortin's, not his.

The Union raises a number of questions which it maintains casts doubt upon the Company's conclusion that Mr. Boivin was found in possession of the stolen tools and was therefore responsible for their misappropriation. In particular it points to the fact that tool lockers of the type which Mr. Boivin was asked to open are frequently shared among a number of employees, sometimes on more than one shift. Its representative argues that Mr. Boivin could not know with any certainty whether others had the key to the same locker in circumstances which would have allowed them to deposit the materials in it. The Union further challenges the reliability of the evidence given at the hearing by the Company's supervisors, and in particular Mr. Larkin's recollection that he had previously seen Mr. Boivin's name on the locker, and his conclusion that the grievor had removed the name tag to avoid detection.

The Arbitrator accepts that in a case of this kind the Company must establish cogent evidence to prove what amounts to quasi-criminal conduct. The fact is, however, that the evidence against Mr. Boivin is, on its face, incriminating. On September 15, 1988 Mr. Boivin is the only person known to have had immediate access to the locker where the unauthorized tools were found. Mr. Fortin had then left the workplace and terminated his employment for some weeks and Mr. Limoges had been absent due to an illness for approximately a month. Putting the Union's case at its highest, it asserts that with respect to locks generally, keys can be in the possession of a number of employees, sometimes on different shifts. While this is not denied, the Arbitrator is less than persuaded that, in light of all of the evidence in this case, it is a sufficient answer to the Company s evidence.

A number of further factors call Mr. Boivin's explanation into question. When he was first asked if the purple locker was his Mr. Boivin answered that it wasn't, and that it belonged to Mr. Fortin who had quit some weeks previous. The evidence of Supervisor R. Aubin, however, is that he had personally seen Mr. Boivin painting the locker when he took it over at or about the time of Mr. Fortin's departure. Moreover, absent any contradictory evidence for Mr. Boivin, who did not appear and testify at the hearing, the arbitrator accepts the evidence of Mr. Larkin that he had seen Mr. Boivin's name on the locker for some time prior to September 15, 1988.

Mr. Boivin is the only active employee known to have had access to the locker in question on September 15, 1988. He was seen locking it hurriedly in suspicious circumstances by Mr. Larkin early in his tour of duty. He admits that he removed a name tag from the locker that same day, but denies that it was his, contrary to Mr. Larkin's recollection. As noted, when his supervisor asked him if the locker was his he denied that it was, ascribing its ownership to a retired employee. When the locker, to which he had the key, was opened it was found to contain unauthorized tools, including one tool box with a burned off lock. In the face of all of that evidence, and the specific testimony of Mr. Boivin's supervisors on facts of some pertinence, the grievor did not attend the hearing and gave no evidence.

In the Arbitrator's view, in the particular circumstances of this case it is not enough for the Union to raise general questions about the overall integrity of the locker system in the shops as a full answer to the accusation against Mr. Boivin. Having regard to the totality of the evidence, I am satisfied, on the balance of probabilities, that he was responsible for the misappropriation of the tools found in the locker under his control on September 15, 1988.

Needless to say, the theft of tools in a deliberate and premeditated manner is a serious offence. Having regard to the grievor's record, which even discounting the ten demerits relating to his late return to work, stood at fifty-five demerits, I must conclude that the assessment of twenty demerits was justified, as was his termination for the accumulation of demerits in excess of sixty. I can see no reason to mitigate the penalty imposed.

Given my conclusion with respect to the issue of theft, it is unnecessary to deal with the issue of the ten demerits for the incident of September 22, 1988, although it is arguable that standing alone that incident might properly have been dealt with by a warning or suspension.

For the foregoing reasons the grievance is dismissed.

DATED at Toronto this 7th day of May, 1990.

(sgd) M. G. Picher

Arbitrator