IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
National Automobile Aerospace and Agricultural Implement Workers Union of Canada
GRIEVANCE RE DISMISSAL OF MACHINIST S. BOULOS, MONTREAL
SOLE ARBITRATOR: M. G. Picher
There appeared on behalf of the Union:
A. Rosner – Executive Secretary, CCRSU
L. Biniaris – System General Chairman, IAM
S. Boulos – Grievor
There appeared on behalf of the Company:
J. E. Pasteris – Manager Labour Relations, St. Lawrence Region
S. A. MacDougald – Manager Labour Relations, Montreal
G. A. Carra – Regional Manager H.R., St. Lawrence Region
Hearings in this matter were held in Montreal on December 22, 1992 and January 22, 1993.
This is the arbitration of a grievance against discharge for the fraudulent alteration of a Company document. The dispute and joint statement of issue are as follows:
Discharge of Machinist S. Boulos of Taschereau Yard Motive Power Shop, Montreal, on March 4, 1992, for attempt to defraud the Company.
Joint Statement of Issue:
Mr. S. Boulos in a complaint to the CLRB filed under Article 37 of the Canada Labour Code, submitted evidence to a claim that CN owed him 14 vacation days for work allegedly performed in December 1988. The evidence consisted of a copy of a memo allegedly written by Mr. H. Savoie, Superintendent, Taschereau Yard Motive Power Shop.
The Company suspected that the document submitted by Mr. Boulos to the CLRB was a forged version of an original memo written by Mr. Savoie. CN Police obtained an analysis of Mr. Boulos' document from the RCMP's forensic laboratory in December 1991. The Union's request for this analysis has been declined.
The grievor was thereafter suspended and an investigation was conducted. The grievor provided an employee statement on February 25, 1992, and March 2, 1992 to determine his responsibility for allegedly "Forging a document ro (sic) receive undue payment to you".
As a result of the investigation, Mr. Boulos was discharged on March 4, 1992, for "Altering a company official document (forging) in an attempt to receive undue payment for himself".
The Union contends that the Company did not prove its allegation against Mr. Boulos.
As a result, the Union is requesting that Mr. Boulos be reinstated without loss of earnings, seniority and benefits as of February 20, 1992, as they find that the discipline imposed was unwarranted.
The Company denies the Union's contentions and has declined its request.
The facts, other than the issue of forgery, are not in substantial dispute. Mr. Boulos has worked for the Company as a machinist at Taschereau Yard Motive Power Shop, Montreal, since the date of his hire in November of 1972. As a result of a knee injury, in early 1988 the grievor was assigned to light duties in the shop office. His work consisted principally of clerical duties, some of which had previously been performed by supervisors, under the direction of Henri Savoie, Superintendent of Motive Power. Mr. Boulos was retained in that position until December of 1989, at which time he was advised that there would be no further work for him in the office. He was then reassigned to light duty assignments on the shop floor, where he continued to work until his discharge in March of 1992.
The re-assignment to the shop floor was not something which Mr. Boulos lightly accepted. On January 11 and 23, 1990, Mr. Boulos wrote letters of protest to Mr. R. Lawless, president and chief executive officer of the Company. The gist of his complaint appears to be that he considered that he should have been made into a permanent supervisor, and that his return to the shop floor was part of a campaign of harassment by several individuals aimed at him. In a letter of January 23, 1990, Mr. Boulos complained, among other things, of the fact that while working in the office he had been asked to postpone his summer vacation on several occasions. In fact, Mr. Boulos wrote two letters to Mr. Lawless on January 23, 1990, one in English and one in French. While a number of events are dealt with in each of the letters, they are not identical. The issue of the Company's handling of Mr. Boulos's annual vacation is addressed more fully in the French letter. It contains the following paragraph, translated by the arbitrator:
I then wanted to establish my annual vacation for the period commencing July 19, 1988 until August 16, 1988, for a period of 20 days, notwithstanding what had happened with Mr. Perrin. The latter then came to ask me to cancel my vacation, claiming that there was no one able to replace me, notwithstanding that Mr. Gilbert, the foreman, was working with me at that time. I was then forced to cancel my vacation, then and four other times during the course of the same year, sacrificing the well being of my family to the interests of the company. Finally, through Mr. Perrin, I obtained a forced vacation period of three weeks in December of 1988, with a carry over of ten days into 1989.
Some time later Mr. Boulos received a reply from the Company, in the form of a letter dated May 17, 1990 signed by Mr. J.R. Lagacé, Regional Vice President. Mr. Legacé's letter contained, in part, the following:
With respect to your 20 days annual vacation for 1988, we acknowledge that the vacation which was scheduled to be taken in July was postponed, by mutual understanding, to the month of December. For reasons which have been discussed, you reported for work on December 1, 2, 5, 12, 19, 28, 29 and 30. Shop Management paid you for these 8 days at punitive rates. However, you returned the cheque claiming that you were owed 14 days. Your claim for 14 days was based on the existence of an alleged handwritten memo from Mr. H. Savoie. Mr. Savoie has denied the existence of such a document, but produced a document which confirmed the 8 days. You claimed being in possession of a copy of the memo in question, but were unable to produce it as evidence.
With regard to this claim, we believe that you are owed pay for 8 days vacation at time and 1/2, but we would be prepared to pay you the 14 days claimed if you can produce proof of such a commitment.
It does not appear clear as to how, and on what basis, the claim for a carry-over of ten vacation days into 1989 made by Mr. Boulos in his initial letter to Mr. Lawless became a claim for 14 days, as reflected in the correspondence from Mr. Lagacé. However, further correspondence between Mr. Boulos and the Company, including a letter to senior vice-president John H.D. Sturgess, the Company's Chief Operating Officer, dated June 8, 1990, suggests that the real felt grievance of Mr. Boulos was that he had been ousted from a position as a foreman in a manner that was improper. The material further discloses that Mr. Boulos's claim for payment of a carry-over of 14 vacation days from 1988, as well as other claims, including claims for vacation time in other years, matured into a complaint to the Union by July of 1990. A letter from System General Chairman Loukas Biniaris addressed to Mr. Boulos on August 9, 1990 confirms that an extension for the filing of Mr. Boulos's grievance had been obtained, indicating that the delay was due, in part, to the fact that the Union had at that point received nothing from Mr. Boulos in writing.
The nature of Mr. Boulos's claim is made more specific in a letter dated September 4, 1990. Mr. Boulos then sought ten heads of redress, including reinstatement into his position in the office, with adjustment of his salary to the rate of a foreman, a number of claims for overtime payments and payment for vacations not taken. On October 10, 1990 Mr. Boulos's claims were formally filed by Mr. Biniaris in the form of a grievance at step II of the grievance procedure, as agreed with the Company. In a reply dated October 31, 1990 the Company rejected all of the claims made by Mr. Boulos, including a further claim that his human rights had been violated. Insofar as the claim for vacation periods, the Company reiterated the position expressed earlier by Mr. Lagacé.
It appears from the correspondence directed to Mr. Boulos by the Union's System General Chairman that the Union was experiencing some frustration in obtaining clear information and documentation from Mr. Boulos to support his grievance. In a letter dated November 18, 1990 Mr. Biniaris copied to the grievor the Company's reply to the grievance and advised him, in part, as follows:
... Will you please read those letters carefully because there are many questions to be answered before the grievances can be progressed further. I have asked for an extension and it was granted until December 15, 1990 under rule 28.9, appendix XV1, W.A. 12.32, in order for you to respond to those questions.
If I don't get your response before the end of the extension, the cases will be dropped.
The material before the arbitrator confirms that on December 9, 1990 the Union progressed Mr. Boulos's grievance to step III.
At that stage, Mr. John Pasteris, replying for the Company wrote a letter to Mr. Biniaris dated February 11, 1991 which included the following comment:
With respect to the grievor's vacation for 1988, we reiterated the position taken by Mr. Lagacé in his letter dated May 17, 1990. We are still prepared to pay the grievor the 14 days claim provided he produces the alleged memo written by Mr. Savoie. To date, the grievor has failed to do so.
The record further reveals that in March of 1991 the Union's frustration with Mr. Boulos's multiple claims finally reached the breaking point. In a letter dated March 11, 1991 Mr. Viel, chairman of the grievance committee of Local Lodge 118, advised Mr. Boulos of the Union's decision to proceed no further with his grievances. With respect to the issue of the 1988 vacation days, Mr. Viel wrote, in part:
... He went to the high authorities of the company, (sic) nevertheless reiterated their commitment to you by Mr. S. Lagacé and Sturgess and to bro. Biniaris by Mr. Savoie. They are still prepared to pay you the 14 days vacation claim providing you produce the alleged memo written by Mr. Savoie. To date the union and the company have no access to this information.
For the purposes of clarity, it should be noted that for some time prior to this development Mr. Boulos had been progressing a complaint against his union before the Canada Labour Relations Board. It appears that Mr. Boulos first communicated with the Board on May 2, 1990, alleging that the Union refused to represent him in the pursuit of his claim against the Company. While the documentation pursuant to that complaint is voluminous, it is sufficient for the purposes of this award to note that the complaint was unanimously dismissed by the Board in a decision dated May 1, 1991. The decision of the Board, over the signature of the Vice Chair Louise Doyon reads, in part, as follows:
As for the second allegation, the Board likewise is not satisfied that the union contravened the Code. The complaint states that it was at the beginning of June 1990 that Mr. Boulos asked his union to file a grievance to claim vacation and overtime pay owed to him for the period between 1988 and the end of 1989. Earlier, in January 1990, the complainant had written to the president of the company concerning this matter and received replies from representatives of the employer in May and June 1990.
During the summer, but after the complaint was filed with the Board, the union obtained from the employer an extension of the time limit for filing a grievance concerning this matter. In the meantime, it asked the complainant to provide details of his claim in writing. On September 4, the complainant sent the union a request that dealt with several items, in addition to the claim for vacation and overtime. The union filed a grievance on October 10, 1990. On February 11, 1991, the employer dismissed the grievance at step three of the grievance procedure and the union notified the complainant on March 11, 1991 of its decision not to refer the grievance to arbitration.
In answer to the second allegation made in the complaint, namely, that the union refused or failed to file a grievance to claim vacation and overtime, the Board could simply declare that the union, in acting as it did in the summer and fall of 1990, responded to the complainant's allegation. However, given the nature of the case, the Board deems it appropriate, in order to avoid any ambiguity, to declare that the union, in refusing in March 1991 to refer this grievance to arbitration, acted in accordance with the Code. The union explained to the complainant the reasons for its decision and the Board can find nothing in the union's attitude that would constitute, in the instant case, discrimination, arbitrariness or bad faith.
Mr. Boulos immediately filed for reconsideration of the decision of the Canada Board. In support of his request, in a letter dated May 31, 1991, he forwarded to the Board a document which he characterized as "new evidence", being an alleged memorandum signed by Mr. Savoie in the following form:
[photocopy of memo submitted by Grievor inserted into original award]
The Company takes the position that the foregoing is a fraudulent alteration of a memorandum written by Mr. Savoie in December of 1988. It communicated its position to the Canada Board, enclosing its own version of the original document. Further, the Union's System General Chairman confirmed to the Board, in a letter dated June 20, 1991, that the supposed "new evidence" being advanced by Mr. Boulos "... was in his possession before he filed his original complaint last year. The union, the company and the investigating officer of the board have continuously asked Mr. Boulos to provide all relevant documents. His persistent refusal to do so can hardly be now used as justification to waste further the time of the board and the parties". In his letter to the Canada Board Mr. Biniaris also notes, with concern, that the material provided by Mr. Boulos to the Board included only one page of a two page letter written by Mr. Yves Viel dated March 11, 1991, and that the photocopying omitted the last line of the page which indicated that a second page was attached. Mr. Biniaris understandably commented, "you may draw your own conclusions". By letter dated September 18, 1991, the Canada Labour Relations Board dismissed the grievor's request for reconsideration of his complaint.
The filing of the memo with the Canada Labour Relations Board caused concern among the officers of the Company. They immediately searched their records to see whether such a memo existed. They found a document, which they maintain was altered to produce the document filed by Mr. Boulos. The original memo, which the Company claims was prepared by Mr. Savoie and was kept in a file known as the "time owed" file, is as follows:
[photocopy of memo submitted by Company inserted into original award]
On August 10, 1991, the Company's officers forwarded a copy of the memo submitted by Mr. Boulos to the Canada Labour Relations Board to the CN Police, along with a copy of the memo in their own files, to determine whether the document sent to the Canada Board had been derived from the document in the Company's possession. It appears from the material before the arbitrator that the copy filed by Mr. Boulos was first received by the employer in mid June, 1991. The evidence of CN Police Constable Henri Pitre confirms that some time passed before the document was sent to the R.C.M.P. forensic laboratory for its opinion. Mr. Pitre's evidence, which the arbitrator accepts, is that the work in the office of the CN Police is handled on the basis of relative priorities, with some files necessarily taking longer to get to. In the result, the memos were forwarded to the R.C.M.P. by the CN Police in or about early October of 1991. On January 20, 1992 the forensic laboratory report of the R.C.M.P. was forwarded to the CN Police, with the finding that the memorandum filed by Mr. Boulos with the Canada Board was derived from the memorandum of the Company's records.
Following the receipt of the R.C.M.P. document by the CN Police, and the communication of its contents from the CN Police to the Company's officers at Tashereau Yard, the grievor was called to a disciplinary investigation held on February 25 and March 2, 1992. As noted in the joint statement of issue, at the conclusion of that investigation Mr. Boulos was discharged on March 4, 1992 for having altered a document to "receive undue payment for himself".
Mr. Henri Savoie, the grievor's supervisor and author of the original memorandum, gave evidence on behalf of the Company. The arbitrator judges Mr. Savoie to be a fair and candid witness who responded truthfully, and to the best of his ability, with respect to events which transpired some four years ago. According to Mr. Savoie, in 1988 there had been some difficulty in getting Mr. Boulos to take his vacation period. As a result, on or about December 2, 1988, a meeting was convened in Mr Savoie's office which was attended by Mr. Boulos, Mr. Savoie and Mr. R. Duhamel, Equipment Officer in the Diesel Shop, Tashereau Yard. The evidence of Mr. Savoie establishes that the meeting was called because of the urgency with respect to sorting out Mr. Boulos's vacation entitlement for the year. This was so, in light of the general policy by which employees are not normally entitled to carry unused vacation into a subsequent year.
According to Mr. Savoie's evidence, it was decided during the course of the meeting that 14 days of the 20 days owing to Mr. Boulos would be taken as vacation days in December of 1988. These included December 6, 7, 8, 9, 13, 14, 15, 16, 20, 21, 22, 23, 29 and 30, 1988. On that basis, according to Mr. Savoie, it was understood that he would have six days remaining which he would be permitted to carry over and take in 1989. Mr. Savoie testified that the foregoing dates were all indicated on a written memo which he himself prepared at the meeting, being the memo in the Company's records reproduced above. Mr. Savoie related that he instructed Mr. Duhamel to give the original to Mr. Boulos, after making a photocopy to be kept in the Company's "time owed" file, a document separate from the grievor's own file, where records of vacation days owing and outstanding for all employees are kept.
According to Mr. Savoie's evidence, as matters stood on or about December 2, 1988, Mr. Boulos would be entitled, exceptionally, to carry six vacation days over into 1989, to be taken as lieu days at that time. In fact, however, as time passed, an adjustment had to be made in that regard. According to the supervisor, Mr. Boulos came in to work on December 29 and 30. As a result, when the issue first arose a year later, at the time of the abolishment of Mr. Boulos's office job, Mr. Savoie made an adjustment whereby he determined that Mr. Boulos should be entitled to a carry-over of eight vacation days into calendar 1989 rather than six, as first agreed. As a result, the Company prepared a cheque which included the payment of eight days at time and a half, or twelve days at straight time, in payment of Mr. Boulos's claim. That cheque, dated February 26, 1990, was returned, uncashed, by Mr. Boulos, who then asserted that he was entitled to a carry-over of 14 vacation days, and not eight days. The dispute in respect of that difference then became part of the larger battle between Mr. Boulos and the Company recounted above, culminating in the filing and eventual abandonment of his grievance and his complaint before the Canada Labour Relations Board.
For the purposes of the arbitration, the Union's representative agreed that the statement made by Mr. Boulos during the course of the Company's investigation could be admitted in these proceedings as the evidence which the grievor would give in explanation of his actions. In that statement, Mr. Boulos confirmed that he met with Mr. Savoie at the beginning of December 1988 to discuss his vacation days, and an arrangement was made which was reduced into writing by Mr. Savoie on a sheet of note paper. Mr. Boulos stated during the course of the investigation that he was owed 20 days, and took ten days off during December. On that basis he states that he would have carried ten days into the new year but that was increased to 14 days by reason of the fact that he worked four days between Christmas and New Year's Day.
In the end, the case must be resolved on the relative credibility of the two memoranda reproduced above. Firstly, it should be noted that little, if any, reliance can be placed on the report of the R.C.M.P. forensic laboratory. The evidence discloses that, while he acted out of the best of good faith, Constable Pitre engaged in a certain degree of question begging when he forwarded the two versions of the memo to the R.C.M.P.. The question put to the forensic experts was whether Mr. Boulos's version of the memo was derived from the "original", meaning the copy produced from the Company's records. Since the issue is which of the two documents is in fact the original, the subsequent report of the forensic laboratory, stating that Mr. Boulos's memo would have been derived from the "original" Company memo is of dubious probative value. I must agree with the Union's representative that an appropriate form of inquiry would have been to ask the forensic experts whether they could determine which of the two documents was the original. As that was not done, and it would have been equally possible to alter an original memorandum which was in the form of the one presented by Mr. Boulos, the arbitrator cannot rely, as the Company did, on the R.C.M.P.s findings as determinative of whether the grievor did falsify the document as alleged.
There is, however, ample evidence upon which the issue of forgery can be determined, on the balance of probabilities. On a careful review of that evidence I have come to the conclusion that Mr. Boulos did falsify the memorandum which he submitted to the Canada Labour Relations Board, as alleged by the Company. There are a number of factors which, in my view, support that conclusion.
The first factor is the general credibility of the evidence presented by Mr. Savoie. While the Union's representative succeeded, in cross-examination of Mr. Savoie, in raising uncertainties and possible contradictions in the supervisor's recollection of events and his interpretation of the Company's version of the memorandum, the ultimate substance and logic of the evidence advanced by Mr. Savoie remains unshaken. Given that it is not seriously disputed that the memorandum was drafted on or about December 2, 1988, the Company's version of the memorandum makes more sense. It notes 14 specific days which the grievor is to take as vacation days in the month of December. Following the notation of those days, the subsequent statement "six to take in 1989" follows naturally, as Mr. Boulos was owed a total of 20 days.
It is also plausible that the original version of the memorandum did not include the enumeration of days appearing at the top of the memo, but was simply a memo which expressed "Dec. vac. - total 14 days - 6 to take in 1989. Days to come in are Dec. 19th and Dec. 28th, 1988. In 1989 regular schedule". It is conceivable that the memorandum was originally drafted in that form and that the specific days noted at the top were added in December of 1989 or January of 1990, after the abolishment of Mr. Boulos's position, when he made a general claim for unpaid vacation and his supervisors were attempting to fill in the blanks of the puzzle. The arbitrator is not inclined to accept that theory, however, in light of the evidence of Mr. Savoie that the circles appearing around the numbers 29 and 30, along with the marginal notation "came in" which are made on the Company's file backing were made in December of 1989 or January of 1990. That is consistent with his own evidence that he made the adjustment for two additional days in January of 1990 when he was able to confirm that in fact the grievor had worked on the two dates in question.
There is, very simply, little if any logic to the version of the memorandum presented by Mr. Boulos. It would, on its face, suggest that he was to carry 14 vacation days over into 1989. If that were so, he would presumably take six vacation days during December of 1988. No such days are indicated on the memorandum. Moreover, if it had been agreed he was taking six days off in December, that is impossible to square with the entry "Days to come in are Dec. 19th and Dec. 28th, 1988". A memorandum in that form simply makes little or no sense, as Mr. Boulos would obviously be called upon to work considerably more days than two in December of 1988, if the memo is to be taken to mean what he says.
Among the most telling factors which undermine the grievor's case are his own statements and actions. In his initial letter of complaint, made to Mr. Lawless in French on January 23, 1990, presumably based in part on his view of his rights arising from the memorandum signed by Mr. Savoie, Mr. Boulos asserted that he had been in fact denied a carry over of ten vacation days into 1989, having been "forced" to take three weeks of vacation in December of 1988. If that statement is to be believed, the three weeks of vacation which he was forced to take would correspond more closely to the 14 days of vacation which the Company says Mr. Boulos was required to take in December of 1988. Secondly, and perhaps most tellingly, although Mr. Boulos pursued his claim for 14 days' vacation with dogged determination, and indicated on a number of occasions that he had documentation to prove that it was owed to him, at no point during the course of the grievance procedure, or indeed during the original complaint to the Canada Labour Relations Board, did he produce for either his Union or the Company a copy of the memorandum which he later enclosed in his request for reconsideration before the Canada Board. No acceptable explanation for that failure has ever been offered by Mr. Boulos, and in the circumstances the arbitrator has little alternative but to draw inferences adverse to the grievor's case.
In summary, a number of elements in the evidence cast grave doubt on the integrity of Mr. Boulos's memo. The memorandum tendered by Mr. Boulos is in contradiction of the letter he wrote to Mr. Lawless. That is so because his vacation entitlement of 20 days could not result in both the forced taking of three weeks' vacation in December, 1988 and, at the same time, the carry over of 14 days into 1989. That would result in Mr. Boulos receiving considerably more than the 20 days of vacation to which he was entitled. Additionally, since there is no dispute that the memo was written in early December, the notation to the effect that Mr. Boulos was to work on December 19th and 28th is also plainly inconsistent with the notation "14 days to take in 1989", as it appears to confirm, by inference, that the balance of the days in December were to be taken as vacation. These inconsistencies, as well as the grievor's initial claim for ten vacation days in his letter to Mr. Lawless, remain entirely unexplained.
Upon an examination of the whole of the evidence, the arbitrator is satisfied that Mr. Boulos did submit a falsified memorandum to the Canada Labour Relations Board in support of his request for reconsideration of his complaint against the Union. That is a plainly serious infraction deserving of a grave measure of discipline. In evaluating Mr. Boulos's overall actions, however, it is arguable, as noted by the Union's representative, that his course of conduct was not solely motivated by an attempt at financial gain. As the evidence reveals, he in fact returned a cheque to the Company for the payment of his eight vacation days credited for carry over from 1988, when the Company attempted to tender a cheque to him in that regard. Indeed, it appears that he remains unpaid to this time for the 12 days at straight time which he refused to accept. The better view appears to be that Mr. Boulos's many layered conflict with the Company, and with the Union, at the centre of which was his wish to be a foreman, took him clearly beyond his depth, to the point of asserting irrational claims and, it would appear, irrationally fabricating documentation to justify them. While that perspective may explain the actions of the grievor, it does not excuse them.
The Union's representative raises a number of procedural objections to the investigation conducted by the Company. Firstly, he submits that the Company delayed unduly the investigation of Mr. Boulos's conduct. Secondly, he submits that the refusal of Constable Pitre at the investigation of February 25, 1992 to allow the Union to have a copy of the forensic report of the R.C.M.P., although it was shown to the grievor and his representative, is in violation of the standards of fair procedure provided for in the collective agreement, whereby the employee is to be afforded copies of the documents in possession of the Company for the purposes of such an investigation. He also protests that neither the forensic report nor Constable Pitre were available at the second part of the investigation held on March 2, 1992. Additionally, objection is taken to the fact, raised by Mr. Biniaris during the course of the investigation proceedings, that the forensic report was written in French, and no translation was provided.
In the Arbitrator's view none of the objections can be sustained. Firstly, as noted in the evidence reviewed above, while it is true that there was a degree of delay in processing the forensic examination of the two memos, that was a matter entirely in the independent hands of the CN Police and for which the Company's officers responsible for the administration of the collective agreement cannot be held accountable. Moreover, the position asserted by Constable Pitre, namely that he could not part with the R.C.M.P. forensic report without due authorization, was clearly taken in good faith, and was equally outside the purview of the Company officers responsible for the investigation. It is common ground that Constable Pitre subsequently obtained the authorization from the R.C.M.P. to release the document, and that upon his obtaining such a release copies were made available to the grievor and the Union. Most importantly, the content and substance of the report was clearly made known to the grievor and his representative at the investigation where both Mr. Boulos and Mr. Biniaris, who can both read French, had every reasonable opportunity to review it and understand its contents. If it were necessary to so find, I would rule that the Company was not in violation of the requirements of the collective agreement in failing to provide a copy of the R.C.M.P. report to the Union, as it was then in the sole control and custody of Constable Pitre of the CN Police, and was not in the possession of the investigating officer. It is also clear that both the grievor and Mr. Biniaris are able to read and understand French, and were not prejudiced by the form of the R.C.M.P. forensic report. On the whole, I am satisfied that the investigation conducted by the Company complied with the requirements of the collective agreement and was in all respects fair to the grievor and the Union.
In the result the arbitrator must conclude that, on the balance of probabilities, the document forwarded by Mr. Boulos to the Canada Labour Relations Board in support of his request for reconsideration of his complaint against the Union was a fraudulent reconstruction of an original memorandum prepared and signed by Mr. Savoie on or about December 2, 1988. It was prepared in furtherance of a claim for the payment of 14 days of vacation, a claim which Mr. Boulos knew, or reasonably should have known, was not appropriate. In the circumstances the grievor's actions were such as to undermine the relationship of trust inherent in the employment relationship, and gave the Company just cause to terminate his services. In the circumstances the arbitrator can find no mitigating factors which would justify a lesser penalty. On that basis the grievor's claim for reinstatement must be denied.
It is, I think, fair to conclude that the grievance implicitly contains within it a claim for unpaid days not taken. There appears to be no dispute on the material before me that in fact Mr. Boulos was never paid for the eight vacation days which, according to Mr. Savoie, he was entitled to carry over from 1988 into 1989. The Company's attempt to pay the grievor 12 days at straight time, or eight days at time and a half, for those days was frustrated by the fact that Mr. Boulos returned the money to his employer as part of his general protest against his treatment at the time, and pending the resolution of all issues. All issues now being resolved, it appears to the arbitrator appropriate to direct that the Company pay forthwith to Mr. Boulos an amount in respect of the 12 days at straight time which are still owing to him. I remain seized of the grievance in the event of any dispute between the parties relating to the interpretation or implementation of this aspect of the award.
Subject to the foregoing direction for payment, the grievance must be dismissed.
DATED at Toronto this 8th day of February, 1993.
(sgd) M. G. Picher