IN THE MATTER OF AN ARBITRATION
VIA Rail Canada Inc.
United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada
ARBITRATION OF GRIEVANCE of N. Seguin and J. Leduc
SOLE ARBITRATOR: Claude D'Aoust
There appeared on behalf of the Union:
John J. Brady
There appeared on behalf of the Company:
A hearing in this matter was held in Montreal on
The proxies have acknowledged, at the hearing, that the grievance had been regularly referred to the arbitrator and that he has full jurisdiction to decide over it.
The facts are relatively straightforward. The plaintiff, N. Seguin, is accused of having punched his colleague Leduc's card in the evening of June 23, 1989, on the eve of the St-Jean holiday, and J. Leduc is accused of having taken part in the fraud. Only the facts are under dispute; the Union, at my request, has declared it would not dispute the situation if the facts are verified.
There is a contradictory evidence and I declare right away that all the witnesses seemed sincere. This having been said, it remains that the employer has only one witness, foreman Lussier, who was at about forty feet from the punching clock allegedly used by Mr. Seguin. Having a perfect eyesight (20 out of 20) according to what he says, and nobody said otherwise, he may well have seen a man punching two cards, one on top of the other. But, being so far away, he may also have made an honest mistake. He says he heard two consecutive clicks, while Mr. Seguin was busy punching his own card. This fact may have lead him to think that there was something fraudulent going on, and his attention having been attracted he may have interpreted wrongly what he was seeing. I do not say that it is what happened, I say that it is a possibility.
This possibility becomes more likely when one notes that there were three or four men waiting to punch out. These men were likely fairly close to one another, since they were in a hurry to leave, especially on the eve of a holiday. Therefore, there was some activity around the clock and the view may have been blocked for the foreman. It becomes even more likely when he declares that he has heard distinctly the double click. We don't know anything about his keenness of hearing, but assuming that it is perfect, it may have been disturbed by the surrounding noise, especially as there were other time clocks in the area.
The employer's evidence is also to the effect that the time clocks are synchronized electronically; but the electrician Lamoureux declares that it is not so - he adjusts them when needed.
Now, Mr. Seguin and Mr. Leduc's cards are punched at the same hour and the same minute, since the time clock does not show seconds. Now, the evidence shows that about thirty men can punch within one minute. It follows that the foreman may have heard two clicks on two different clocks and that Mr. Seguin and Mr. Leduc have been able to punch within the same minute.
This is what they both say. M. Leduc and Mr. Lamoureux have punched first (in the very first seconds of the minute) and Mr. Seguin has punched in the very last seconds of the same minute.
This is what the three of them say. Mr. Seguin usually "closes the shop", so he leaves last. That what he is said to have done in the evening of the 23rd.
The foreman says he has not seen Mr. Leduc around the time clock, and that he would certainly have recognized him, since he limps. But that does not disprove the Union's version. Mr. Leduc may have punched out and then disappeared (in the first seconds of the determining minute), according to the path followed by the workers and illustrated by the map of that part of the shop provided as evidence.
The Company's thesis is that Mr. Leduc was not on the work site and that Mr. Seguin had accepted to cover him by punching his card. In my opinion, it is pure gamble. We have a testimony to the contrary. Moreover, there is no evidence that Mr. Leduc was absent. This could have been proven even though it is a "negative fact". Somebody might have seen him leaving; even a thorough research could have been enough to prove such a thing. This proof has not been made.
It is a disciplinary measure and the employer has the burden of the proof burden he has himself taken on at the hearing, and without complaining.
The alleged offence is a serious one. It questions the plaintiffs' honesty; therefore it casts a slur on their moral integrity and on their reputation. The sanction imposed shows that the employer did not think otherwise (since he removed from the files of the employees concerned half of the demerit points resulting in dismissal).
In this type of case, the evidence has to be particularly convincing, and we don't have such an evidence.
FOR THESE REASONS, the grievances are accepted with the conclusions sought for.
I keep jurisdiction until February 20, 1991 to dispose of any question concerning the clarification of the present disposition, if one of the parties asks me to do it.
Montreal, February 3, 1991
(sgd) Claude D'Aoust