SHP - 395
IN THE MATTER OF AN ARBITRATION
CANADIAN PACIFIC LIMITED
NATIONAL AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS UNION OF CANADA (CAW-CANADA)
GRIEVANCE RE DISCHARGE OF G. SHANNON, G. LALIBERTE, P. STEMPNICK AND B. POWELL FOR SABOTAGE OF COMPANY PROPERTY
SOLE ARBITRATOR:Michel G. Picher
APPEARING FOR THE UNION:
A. Rosner – Executive Secretary, CCRSU
G. Brodsky – Counsel
APPEARING FOR THE COMPANY:
L. G. Winslow – Labour Relations Officer
M. W. Shannon – Solicitor
R. M. Smith – Solicitor
G. D. Wilson – Solicitor
D. R. Simpson – Production Manager, Component Shop - Weston
J. P. Lotecki – Personnel Development Officer Weston
Hearings in this matter were held in Winnipeg on August 3, 4, 5, 6; December 11, 12, 13, 20, 21, 22, 1993; and January 8, 9, 10; March 23 & 24, 1994.
This arbitration concerns the grievances of four employees discharged for the alleged sabotage of Company equipment during the course of a strike. In March of 1988, the grievors were members of the International Association of Machinists, whose bargaining rights have since been assumed by the CAW. They were employed in the Company’s shops at Winnipeg, and were engaged in a lawful strike at the time of the events giving rise to their grievances. They are charged with having tampered with Company signals on the night of April 21 and the early morning of April 22, 1988, thereby interfering with train traffic. Following a Company investigation, they were dismissed in March of 1993, upon a finding of insufficient evidence made by the Court. The Company submits, however, that the evidence which it has obtained is sufficient to establish, on the balance or probabilities, that the grievors were responsible for tampering with signal equipment, as alleged, and that their conduct is deserving of discharge. The Union maintains that the evidence does not sustain the allegations made against the grievors, and seeks their reinstatement into their employment, with compensation for all wages and benefits lost.
It is common ground that on the night of April 21/22, 1988 damage was done to Company signals on the Carberry subdivision, west of Winnipeg. The evidence before the arbitrator discloses that on that night CP Rail freight train Extra 5546, consisting of 77 hopper cars, an engine and a caboose, came upon four red signals at mileages 19.5, 21.2, 25.0 and 27.6 of the Carberry subdivision. Having reported this unusual occurrence, the train’s crew proceeded through the area at restricted speed, in keeping with the red signals, until consecutive green signals resumed at or about mileage 30.5. The train then resumed speed to approximately 42 miles per hour, at which point it derailed at mileage 40.5, near Poplar Point, Manitoba. It is common ground that the derailment was the result of the sabotage of switches at Poplar Point. It resulted in damage to the Company’s equipment estimated to be in excess of $1 million. The grievors are not alleged to have been responsible for the damage to track switches which caused the derailment. As noted in the Interim Award of April 19, 1994 [SHP-392], other individuals, including one former CP Rail employee, were responsible for that destruction. The sole allegation against the grievors is that they were responsible for tampering with signals at mileages 19.5, 21.2, 25.0 and 27.6 of the Carberry subdivision which triggered the four red signals encountered by Extra 5546, causing it to proceed at reduced speed.
The derailment and signal damage occasioned an extensive police investigation which continued over a substantial period of months. In light of statements obtained during the course of investigations in 1991, Mr. George Shannon was charged criminally for his involvement in the damage to signals on November 16, 1991. Mr. Phil Stempnick was similarly charged on November 28, 1991, Mr. Glenn Laliberté on December 16, 1991 and, finally, Mr. Brent Powell on January 17, 1992. The grievors were removed from service pending the Company’s own investigation, when it became aware of the criminal charges against them. Following the completion of the Company’s investigation on March 30, 1992, the Company made the decision, on April 16, 1992, to discharge the four grievors for their participation in the damage to Company property and, in particular tampering with the signals in question on the night of April 21/22, 1988.
The evidence discloses that during the course of the strike the striking Shopcraft unions maintained picket lines at several locations near and around the Company’s shops in Winnipeg. The unions had established a strike headquarters at the Continental Motor Inn where picketers generally checked in prior to going on picket duty. As a rule, employees were expected to picket during what would otherwise be their own normal tour of duty. Employee Darcy Owen, a machinist employed in the Weston Shops, usually picketed between midnight and 6 a.m., normally at a location described as the Higgins Street Depot. He was usually accompanied by his regular workmates, including the grievors Shannon, Laliberté, Powell and another employee, Andrew Stoddart.
Mr. Owen testified at the arbitration hearing that he was involved in the damage to the signals on the night in question. According to his evidence, on the night of April 20th, he was approached and told to be prepared to be "involved in something" the next night, and that he should come in early for picket duty. He relates that he came to the strike office in the Continental Hotel shortly after 11 p.m., at which time he was directed into a separate room. According to Mr. Owen, George Shannon and Glenn Laliberté were in the room, and they advised him that signals were going to be tampered with that night. When he advised them that he did not want to be involved in cutting any electrical wires, because of his fear of electricity, it was agreed that his task would be to drive a vehicle carrying people involved in the operation. According to Mr. Powell, the meeting was relatively brief and immediately thereafter he joined a number of employees in the hotel’s parking lot. He relates that Mr. Shannon and the grievor Phil Stempnick got into his car while the grievors Powell and Laliberté got into Mr. Andrew Stoddart’s car.
According to Mr. Owen, the cars proceeded westward past Rosser, stopping on the highway at one point. During the stop, Mr. Shannon and Mr. Laliberté spoke together briefly. Following their conversation, they reboarded their vehicles and Mr. Owen proceeded further down the road a distance he estimates to be a couple of miles. He relates that he was then instructed to stop, whereupon Mr. Stempnick got out of the car. He then proceeded further and dropped off Mr. Shannon. At the drop-off points, the road runs parallel to and in close proximity to the railway line.
Mr. Owen relates that having dropped Mr. Shannon off, he turned the car around and watched. In his evidence-in-chief, he stated that he saw Mr. Shannon climb the signal ladder and that he could see him reaching out toward the wires to cut them. After a period of time, which he estimates to be approximately five minutes, Mr. Shannon returned to the car, apparently falling into a ditch and getting wet in the process. The pair proceeded down the road and picked up Mr. Stempnick at the point where he had been let off.
According to Mr. Owen’s evidence, the group then drove back to the strike headquarters where he dropped Mr. Shannon and Mr. Stempnick off, and proceeded home. It was then his understanding, according to what Mr. Shannon told him, that Mr. Shannon intended to get changed and go to a nearby night club. Mr. Owen relates that he did not see Mr. Shannon after that, and that he did not see the occupants of Mr. Stoddart’s car after the meeting of the two cars on the highway enroute to Rosser.
Mr. Owen relates that the following day he learned about the derailment of the train at Poplar Point. He states that although he knew that his group was in the general area the previous night, he was surprised that a derailment had occurred and was afraid of being accused of involvement in it. He relates that when he went to the strike headquarters that night he met with Mr. Shannon, Mr. Laliberté, Mr. Powell and Mr. Stoddart. He states that he cannot recall whether Mr. Stempnick was there. According to his evidence, the others were just as surprised and concerned as he was about the derailment. He relates that they discussed what had happened, confirming to themselves that their actions could not have resulted in a derailment. Mr. Owen then states that the group established an alibi to protect themselves in the event any questions should be asked. He says that it was agreed that the group would say that they had met at the strike office of the night prior, that they had checked several picket lines in their vehicles and thereafter a group of them, including Mr. Shannon and Mr. Laliberté, decided to go to a local night spot, the Diamond Club. Mr. Owen relates that that alibi was suggested because the night prior, after the signal tampering, Mr. Laliberté and Mr. Shannon had been to the Diamond Club where they met Company supervisor Pat Jackson.
Mr. Owen, as well as the people he says were involved with him that night, and many other employees, were the subject of repeated police interrogations both immediately after the night of the derailment and for months thereafter, into 1991. Over that time, investigations were ongoing by both the CP police and the RCMP. Finally, in November of 1991, Mr. Owen decided to come forward and confess his involvement in the signal tampering. According to Mr. Owen, repeated visits by the police asking him questions became trying on his nerves and hard on his family. He relates that he had great difficulty maintaining the falsehood for a period of three and a half years, and as he put it, "I got tired of living that way". Mr. Owen gave his first statement to RCMP Constables Edmonds and Gosse at Winnipeg on November 19, 1991. That statement, filed in evidence before the arbitrator, discloses that in the earliest stages of recounting his story Mr. Owen named the grievors Shannon, Laliberté, Stempnick and Powell, as well as Mr. Andy Stoddart as having been involved on the night in question. The evidence which he related at the arbitration hearing is consistent with the statement which he gave to the police on that occasion as regards the participants and the division of assignments between the two cars.
In a second police interview, on November 28, 1991, Mr. Owen related the circumstances of the alibi meeting at the Continental Hotel the following night. His account of the meeting to the police, the people who were present and the Diamond Club being used because Pat Jackson had seen some of the employees there the night prior, is generally consistent with his evidence in the arbitration hearing. It is also notable that in his first statement to the police Mr. Owen did not include Mr. Stempnick as being among those who were at the alibi meeting. For reasons related below, the evidence before the arbitrator confirms that Mr. Stempnick was elsewhere, which gives some credence to the accuracy of Mr. Owen’s statement.
During the course of cross-examination, counsel for the Union questioned Mr. Owen about whether he had been given assurances that he would retain his job if he confessed. He responded that he was told by Constable Edmonds that the police would do what they could do to help him keep his job if he was prepared to cooperate. In the result, following his confession and the eventual charges brought against the grievors, Mr. Owen was not charged, and was eventually reinstated into his employment. However, for reasons elaborated below, the arbitrator does not see in that turn of events any compelling basis to doubt the credibility of Mr. Owen’s evidence in respect of what transpired on the night of April 21/22, 1988.
Mr. Andrew Stoddart testified that he usually picketed with people from his own shift, including Mr. Shannon, Mr. Laliberté and Mr. Powell. He states that someone approached him and asked him to come early on the 21st for a "special assignment". Upon arriving at the strike office, he was directed to a room where Mr. Laliberté and Mr. Shannon were located. Following some explanation of what was to transpire, it was agreed that Mr. Stoddart would, like Mr. Owen, drive his car as part of the operation. He relates that the plan was solely to damage some signals. He further relates that during the course of that conversation, the grievor Brent Powell entered the room.
Mr. Stoddart relates that he then drove to the location of the signals with Mr. Laliberté and Mr. Powell in his car. He confirms that the two cars stopped on the highway and that Mr. Laliberté got out of his car to speak to someone else at that point. According to Mr. Stoddart, Mr. Laliberté had a walkie talkie which enabled him to speak to the people in the other car.
Mr. Stoddart relates that he was then instructed by Mr. Laliberté to drive to a point where the highway ran adjacent to the track and signal lines, where he stopped, and where Mr. Powell exited the car. He then drove further down the road to a point where Mr. Laliberté got out. Mr. Stoddart then drove a short distance further down the road, turned his car around and waited for a few minutes, then returned to collect Powell and Laliberté from the locations where he had dropped them. He relates that he then drove his car back to the strike office, at which point he parted company with Mr. Powell and Mr. Laliberté. Mr. Stoddart says he stayed in the office for a coffee and thereafter went for a beer with a union officer, Mr. Jim Munch, at a place known as Centrefolds Bar. He did not relate the evening’s events to Mr. Munch. He states that after that he proceeded home. He further relates that he became concerned when he learned of the derailment the next day. That night, he again went to the Continental Hotel at the regular time. According to his evidence, Messrs. Powell, Laliberté, Owen, Stempnick and Shannon were all present, along with himself, when the discussion of an alibi took place. Mr. Stoddart states that he cannot recall what was decided with respect to establishing an alibi, but that following the discussion the group went back to picketing and that thereafter there was never again any further discussion among them about the signal tampering they had been involved in.
A review of Mr. Stoddart’s initial statement to the police, made to Constable Edmonds and CP Investigator Blandford, on December 18, 1991 discloses serious problems with Mr. Stoddart’s recollection of detail. Initially he related to the police officers that Mr. Owen and Mr. Powell and, possibly, Mr. Stempnick were in his car, along with one other person whom he could not recall. He stated that he believed the other vehicle was owned by Mr. Laliberté and that Mr. Shannon may have been in Mr. Laliberté’s vehicle. His account to the police is consistent, however, as it relates to the route taken and to stopping the vehicle twice to let people out to cut the signal lines. When confronted with certain contradictions between his testimony at the arbitration and his initial statements to the police, Mr. Stoddart confessed that he did not have a vivid recollection of the details of what transpired. According to him, he spent the years between 1988 and 1991 trying to forget the events of April 21/22, 1988. For reasons related below, while the evidence of Mr. Stoddart is less than reliable in all of its particulars, there are reasons to conclude that it contains a factual core consistent with what transpired in relation to the signal tampering.
There is little reason to believe that Mr. Stoddart fabricated his story. It may be noted that, as reflected in a record of the Company’s investigation, Mr. Stoddart did not escape criminal prosecution. On January 22, 1992, he entered a plea of guilty in Provincial Court to a charge of mischief under $1,000. In relation to the charge, he admitted driving persons to a site where signal wires were cut, causing the signals to turn red and slow down train traffic. Upon his guilty plea, he was given a six-month conditional discharge and ordered to pay restitution. It further appears that Mr. Stoddart was reinstated into his employment, like Mr. Owen,, only later following a written request made in a letter to the Company on May 21, 1992.
Each of the grievors denies having any involvement in the signal tampering. Mr. Shannon states that on the night of the derailment he went in for picket duty as usual. He states that along with Brent Powell and Glen Laliberté, and perhaps Darcy Owen, he drove around to check on several of the picket lines. According to his estimate, he would have gone to the Continental Motor Inn at approximately 11 or 11:30 p.m., prior to touring the picket sites with his fellow employees. He states that sometime between 11:30 and midnight he went to the Diamond Club, using his own car. He denies any involvement with the signal tampering or any involvement in an alibi meeting on the following night.
Mr. Stempnick likewise denies any involvement in the signal tampering. He states that he has no specific recall of his actions on the night of April 21/22, 1988, save that he was not in Mr. Owen’s car or in Mr. Stoddart’s car, or in any way involved in signal tampering. He did give specific evidence, however, with respect to his whereabouts on the following evening, at the time of the alleged alibi meeting. He relates that he operates a disc jockey service and that evening he was working at a dance in Winnipeg, a nursing social at the Regent Park Banquet Hall. Mr. Stempnick’s evidence in that regard is corroborated by Mr. Jean-Paul Normandin, a registered nurse who testified that he hired Mr. Stempnick for the nursing social, and saw him there on the evening in question. According to Mr. Normandin, the dancing lasted until 1 a.m., and he cannot recall anyone other than Mr. Stempnick being in charge of the music. In support of this aspect of the evidence, Mr. Normandin identified a contract signed by himself and Mr. Stempnick for the services in question, on an invoice of Mr. Stempnick’s business, "Alternative Sound". While Mr. Stempnick admitted he had no specific recollection of the evening in question, he testified that he normally would have been at the dance hall at approximately 6:30 p.m., in anticipation of beginning his work at 8 p.m.
Mr. Powell also denies having been involved in any discussions or actions relating to signal tampering in April of 1988. He states that on the evening of April 21 he went to the strike headquarters at the Continental Motor Inn sometime between 11 p.m. and midnight. According to his evidence, shortly thereafter he went to the Diamond Club and a sister establishment known as Club Taboo, in the same building. Mr. Powell states that he believes that he drove to the club from the strike headquarters in his own car and that during the course of the evening he eventually met George Shannon and Glenn Laliberté, as well as supervisors Pat Jackson and Ross Maines. Under cross-examination, he indicated that it was something of a group decision to go to the Diamond Club, and that he knew that Mr. Shannon and Mr. Laliberté would be there. According to his estimate, they arrived there before he did.
Mr. Laliberté gave a far more involved account of his movements on the night of April 21/22, 1988. He relates that late in the day of the 21st he received a telephone call from supervisor Pat Jackson who invited him to join him for drinks at a bar called "Times". He met Mr. Jackson at the bar in the company of Mr. Rick Poirier who, like Mr. Jackson, was a supervisor at the Winnipeg Diesel Shop. Mr. Laliberté states that after having some drinks with the two gentlemen, he advised them that he had to go to the strike office to sign some picketers in. When they indicated that they had need of his truck, he arranged to meet them later at the Diamond Club, or Club Taboo.
According to Mr. Laliberté, he left the Times Bar at around 9 or 9:30 p.m. and drove to the Continental Motor Inn in his truck, accompanied by Mr. Poirier and Mr. Jackson. Jackson and Poirier then took Mr. Laliberté’s truck, having deposited him at the Continental Hotel, indicating that they were going to join supervisor Ross Maines at a bowling alley, and that they would meet Mr. Laliberté later at the Diamond Club. It was understood that Mr. Laliberté would find his own transportation to the bar.
Mr. Laliberté testified that he can recall seeing Messrs. Stoddart, Owen, Shannon and Powell at the strike headquarters, and that he signed them in. He relates that they stayed at the strike headquarters a very brief time, following which the group, including Mr. Laliberté, went for a drive to check some picket lines. Mr. Laliberté estimates that they then proceeded to the Diamond Club at approximately 11 p.m. The evidence discloses that the Diamond Club is a large establishment with tables located on several levels. According to Mr. Laliberté’s evidence, when he entered the club he saw Supervisor Jackson at a second floor table and waved up to him. Mr. Laliberté believes that Mr. Jackson was then accompanied by Mr. Poirier as well as Supervisor Maines and his wife.
According to the evidence of Mr. Jackson, who no longer works for the Company, Mr. Laliberté arrived at the Diamond Club at approximately 11 p.m. He estimates that he and Mr. Poirier arrived shortly after 10:30 p.m. and they spent a good part of their time moving back and forth between the Diamond Club and Club Taboo, in part to see whether Mr. Laliberté had arrived. He states that when he was located on the second level of the Diamond Club he looked down and saw Mr. Laliberté coming in, at which point he waved to him. It appears that they did not get together for a substantial time, however, until Mr. Jackson had been joined by Mr. Maines and his wife, around midnight. He estimates that it is around that time that Mr. Laliberté joined Mr. Jackson and his drinking cohorts on the second level of the Diamond Club. Mr. Jackson also recalls seeing George Shannon in the club at or about the same time.
Mr. Poirier testified that he had drinks with Mr. Jackson at the Times Bar, and Mr. Laliberté joined them sometime between 10 and 10:30 p.m. He relates that the three left shortly thereafter, and that he and Mr. Jackson borrowed Mr. Laliberté’s truck to proceed to the bowling alley to meet Mr. Maines, and thereafter to the Diamond Club, having left Mr. Laliberté at the Continental Motor Inn. He estimates his time of arrival at the Diamond club to be approximately 11:30 p.m. According to his evidence, Mr. Jackson told him that he had to return Mr. Laliberté’s keys to him, and that every 15 or 20 minutes the two would go from the Diamond Club to Club Taboo, and back, looking for Mr. Laliberté. It is common ground that it was a Thursday night and that the clubs were crowded. According to Mr. Poirier’s estimate, they found Mr. Laliberté on the second floor seated with two others whose identity he could not recall. According to Mr. Poirier’s recollection, when he and Mr. Jackson first saw Mr. Laliberté, Mr. Jackson went directly to him at that point.
There are significant differences between the account of events and, in particular, the estimated times involved, in statements given to the police in 1988 and the evidence at the arbitration hearing. Mr. Poirier was interviewed by the police on May 5, 1988. The notes of that conversation, which took place within some two weeks of the event, reveal that the arrival of Mr. Laliberté at the Diamond Club, or Club Taboo, was later than the estimate which Mr. Laliberté gave in his evidence before the arbitrator. Mr. Poirier’s statement, made freshly in May of 1988, contains, in part, the following:
Ross Maines and his wife met Pat Jackson and I in the Diamond Club at approximately 11:45 p.m. From there we went to Club Taboo at 12:15 a.m. and met Glenn Laliberté and his two friends. They showed up between 12:30 and 1 a.m.
As can be seen from the above accounts of the evidence, which is only a small part of the extensive testimony and documentation placed before the arbitrator, the instant case resolves itself substantially on credibility. On the one hand, Mr. Owen and Mr. Stoddart confess to having been themselves involved in the damage to the signals, in concert with the grievors Laliberté, Shannon, Stempnick and Powell. Their evidence, particularly that of Mr. Owen, would further establish that there was a separate meeting of the same group, except for Mr. Stempnick, on the night following the damage to the signals and the train derailment, to establish an alibi relating to some of the group being at the Diamond Club and the Club Taboo. On the other hand, the evidence of the grievors is a blanket denial of any involvement in the damage to the signals supported, in part, by the testimony of other individuals who say they saw Messrs. Laliberté, Shannon and Powell at the Diamond Club at a point early enough in the evening which would have made it impossible for them to be in Rosser at the time of the damage to the signals. However, if Messrs. Laliberté, Shannon and Powell in fact arrived at the club at or about 12:30 p.m., they would have had time to go to Rosser, do the damage to the signals and return.
With respect to the events at the Diamond Club, in the arbitrator’s view the best evidence is the account given by Mr. Poirier in his statement to the police on May 5, 1988. That statement has Mr. Laliberté and his friends arriving at the club after 12:30 a.m. and possibly as late as 1 a.m. Further, a statement made by Pat Jackson to the police on May 1, 1988 indicates that he met Mr. Laliberté in the night club at approximately 1:30 a.m. It is significant, I think, that both Mr. Poirier and Mr. Jackson then had no reason to suspect or protect anyone in relation to the signal damage. Their statements to the police must be taken as given without guile or purpose and, to that extent, given their proximity in time to the events, to be most reliable.
When the evidence is reviewed as a whole, the credibility of Mr. Laliberté is substantially in doubt. In a written statement given to the Company on February 1, 1992, Mr. Laliberté asserted that he met Mr. Poirier and Mr. Jackson at the Times Bar at 6 p.m. and proceeded to the Continental Hotel strike headquarters at approximately 7 or 7:30 p.m. According to the account he then gave, he arranged to meet his friends at the Diamond Club between 9 and 10 p.m. That timetable varies dramatically from Mr. Laliberté’s evidence before the arbitrator, and more dramatically still, as compared with the account of times rendered in 1988 by both Mr. Jackson and Mr. Poirier. Nor can the arbitrator find that the evidence of the "bouncer" at the Diamond Club, Mr. Jan Black, lends much credence to Mr. Laliberté’s case. Mr. Black testified that Mr. Laliberté arrived at the night club at 11 p.m. Apart from Mr. Black’s checkered background and general demeanour as a witness, the fact that he was approached by Mr. Laliberté shortly after the events at Rosser, in late April or early May of 1988, raises some questions. He was then asked by Mr. Laliberté to support his recollection of his whereabouts at the times in question. That is, as the Company’s counsel submits, substantially consistent with an effort on the part of Mr. Laliberté to lay the groundwork for an alibi in the event of what Mr. Laliberté then described to Mr. Black as a possible criminal investigation. However, there were no accusations against Mr. Laliberté at the time he approached Mr. Black. Moreover, it is obvious that Mr. Owen and Mr. Stoddart did not make out of whole cloth their account that they were with Mr. Laliberté and the other grievors on the night of April 21, 1988. When he was interviewed by Constable Blandford on April 28, 1988, as reflected in Constable Blandford’s notes, Mr. Laliberté confirmed that on the night of the 21st and morning of the 22nd, he was with George Shannon, Brent Powell, Andy Stoddart and Dary Owen, among others.
In the arbitrator’s view, the evidence given by Mr. Owen, to some extent corroborated by Mr. Stoddart, is clearly to be preferred to the testimony given by the grievors. The Union has sought to indicate errors in the accounts of events given by Mr. Owen and Mr. Stoddart, and the variance in their accounts over the years through their statements to the police, to the Company and in the criminal trial proceedings. However, the essential story which they relate has always contained the same germ of critical fact, namely that under the direction of Mr. Laliberté and Mr. Shannon, Messrs. Stempnick, Powell, Owen and Stoddart proceeded in two cars to the area of Rosser on the night of April 21/22, 1988, where they cut signal lines, causing a red signal to be displayed, thereby slowing train traffic.
The arbitrator is satisfied, on the balance of probabilities, that the grievors would have had time to conduct the operation which they did while being able to return to the strike headquarters, permitting Messrs. Laliberté, Shannon and Powell to proceed to the Diamond Club at or about 12:30 a.m. I am also satisfied that on the following day all of the grievors, with the exception of Mr. Stempnick, participated in a discussion with respect to creating an alibi which involved the presence of certain of them at the Diamond Club on the night previous.
There are, to be sure, substantial inconsistencies in the recollection of events provided by Mr. Stoddart during the course of the investigation. Even where his evidence is concerned, however, notwithstanding much confusion as to the precise location and role of each of the players, the identity of the grievors, along with himself and Mr. Owen, as participants in the scheme has remained constant since his first statement to the police. Moreover, the arbitrator judges Mr. Owen to be an extremely careful and candid witness, whose separate recall of the events stands unshaken, insofar as the identity of the participants, their actions and the general sequence of events is concerned. The fact that even Mr. Owen’s testimony at various points in time may contain some inconsistencies is, I am satisfied, relatively insignificant given the substantial passage of time, spanning some six years between the sabotaging of the signals in April of 1988 and the completion of the evidence in the arbitration hearing in March of 1994. I am ultimately compelled to the unfortunate conclusion that each of the grievors was involved in the signal tampering at Rosser, as alleged.
The case before the arbitrator is one of genuine human tragedy. The grievors are to all appearances decent people who allowed themselves to be swept into highly irresponsible activities in the heat of a bitter strike. However, quite apart from the very obvious ramifications for human safety, it is difficult to imagine an industrial offence more serious that the deliberate destruction of an employer’s property and equipment. While it is clear that the grievors were not involved in the destruction of switches and the derailment of train Extra 5546, their actions were plainly designed to hamper the Company’s ability to operate and, arguably, to instil a degree of fear within those who were still at work and were responsible for the operation and movement of trains. It is not overstatement to characterize their actions as a form of industrial terrorism. In an industry which, by its very nature, is safety sensitive, the deliberate tampering with or destruction of signals, or any other safety related equipment, must rate among the gravest of disciplinary infractions.
Nor are there substantial mitigating factors which would sustain a reduction of penalty short of discharge in the case before me. In light of the conclusions which I have drawn on the evidence, I am compelled to the unfortunate conclusion that the grievors have sought to mislead this board of arbitration, just as they tried to mislead their employer. This is not a case where candid admissions and expressions of regret can be looked to as a basis to believe in the grievors’ potential for rehabilitation. It is also a case where the importance of deterrence of like conduct by others in the future weighs heavily.
For all of these reasons, the grievances must be dismissed.
DATED at Toronto this 26th day of September, 1994.
(signed) MICHEL G. PICHER