SHP - 398
IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
NATIONAL AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS UNION OF CANADA
GRIEVANCE RE DISMISSAL OF BOILERMAKER"H", TASCHEREAU YARD
SOLE ARBITRATOR:Michel G. Picher
APPEARING FOR THE UNION:
Abe Rosner – National Representative
Dr. Daniel Frank – Witness
John Brady – CAW Representative
Marcel Nuchaud – Local Representative
"H" – Griever
APPEARING FOR THE COMPANY:
Claude St. Cyr – Manager, Labour Relations
Alain Dion – Regional Labour Relations Officer
John Pasteris – Manager, Labour Relations
Dr. Maurice Leduc – Witness
A hearing in this matter was held in Montreal on November 28, 1994.
This arbitration concerns the discharge of an employee for theft of Company property over a substantial period of time. The Union submits that the griever, ‘H’, suffers from kleptomania, and that his medical condition and prior service should be viewed as mitigating factors which would justify a penalty short of dismissal. The Company rejects the view that "H" suffers from kleptomania, based on an assessment made by its own psychiatrist. It submits that in light of the long-term pattern of theft engaged in by the grievor, and the amount of goods stolen, its decision to discharge should be upheld.
The material facts are not in dispute. "H" was hired by the Company in August of 1967 and, since that time, has worked continuously as a qualified boilermaker, most recently assigned to the Taschereau Yard Diesel Shop in Montreal. He was 54 years of age, and one year short of eligibility for early retirement, when the events giving rise to his discharge occurred in May of 1991. It is common ground that upon completion of the grievors tour of duty on May 11, 1991 he was stopped at the exit gate to the Yard by CN Police who searched a bag which he was carrying in his van, and found tools and materials belonging to the Company. The CN Police subsequently obtained a search warrant and, the following day, searched the griever’s home where a substantial amount of Company material and tools were found. Some 445 items of property belonging to the Company were found, either at the grievor’s home, in his vehicle or in his locker on the Company premises. The estimated value of the goods is in excess of $48,000. Certain of the items, such as acetylene tank regulators, are relatively costly, while others were of extremely limited value. Included within the materials found were over 4,800 plastic garbage bags of varying sizes and shapes. Many of the items stolen were tools and materials regularly used within the Diesel Shop where the grievor was employed, such as pipe wrenches, welding rods, paint and safety glasses. Other items varied as widely as a locomotive headlight, copper wiring, screws, nuts and electrical tape. The storehouse of material and equipment gathered by "H", over a substantial period of time is, by any standard, remarkable.
According to the grievor’s own admission, he has stolen Company property for some 14 years. It is common ground that he did not steal for personal gain, and did not sell or give away the items he stole, nor did he make any substantial personal use of them. Rather, they were piled in his garage in furtherance of what appears to have been a propensity to hoard which dates from childhood. Mixed in with the piles of stolen items were other pieces of scrap and materials which had either been discarded or given to Mr. "H" over the years.
During the course of his disciplinary investigation, the grievor admitted that his supervisors were unaware that he had taken most of the material found at his home, although in respect of a small number of items he indicated that he had asked permission, particularly where scrap material was concerned. He admits that he knew that it was wrong to steal the tools and equipment which he did and states, in part:
Yes, I know it was wrong, but I had access to get that material. I let my emotions take over and at the times (sic), I thought it was right or a good opportunity to take because later on I may not be able to get it.
Following his investigation, Mr. "H’ was discharged effective June 3, 1991. Shortly thereafter he was assessed by a psychiatrist Dr. Daniel Frank of the Department of Psychiatry of the Jewish General Hospital in Montreal. Following three assessment appointments with Mr. Frank, as related in an opinion letter dated October 17, 1994, Dr. Frank diagnosed "H" as suffering from kleptomania. Dr. Frank’s analysis of the grievor’s condition reads, in part, as follows:
Mr. "H" readily admits that he has had the habit of stealing "used stuff’, junk, or articles of insignificant value. Further, he saves them in great messy piles in his garage at home. He claims that this is a senseless and incomprehensible habit and he does not sell these articles or make use of them. He does not run a business on the side selling these parts, doing repairs, or constructing things for people. He does not steal because of any anger or feeling of vengeance towards his employer. Mr. "H’ describes a feeling of tension before stealing followed by a reduction in tension afterwards. In fact, during the search of his premises when he was apprehended, 445 different types of items were recovered and inventoried by the police. (See appendix for this extraordinary hit). Mr. "H’ claims that not all of these items were stolen and that a portion of them were given to him legitimately or acquired elsewhere and added to his vast collections. He claims his habit of hoarding objects is the source of fighting with his wife who wouldn’t permit his "junk" in the house. Mr. "H" cannot give any explanation for his kleptomania. He admits to having been stealing for about 14 years. He has, to his knowledge, no police record for the habit although be once was apprehended for taking condoms from a store in Ville LaSalle (he claims that this was not shoplifting but rather an oversight on his part in which he forgot to pay at the cash). Between the interviews of December 1992 and September 1994, he acknowledged one episode of minor shoplifting - he took a handful of 89 cent copper plumbing elbows from a hardware store.
He was never arrested for any reason previously. He has never abused either drugs or alcohol.
When discussing his potential for kleptomania in the future, he seems to have a genuine intention never to steal again. He does not understand what drives him to do so, however, He professes willingness to cooperate with any therapeutic procedure or any procedure of surveillance or vigilance that might be instituted by the company - even if this involves certain disadvantages for him. He is highly motivated to retain his job. Regarding his hoarding, he claims he could give it up if he tried, but this was unconvincing to the examiner.
Mr. "H" has a clear cut psychiatric condition involving the control of impulses called Kleptomania. (See the appendix for a description of this condition.) In his case, it is accompanied by a related dysfunctional habit called hoarding in which he keeps and stockpiles enormous supplies of material with little or no apparent or logical value to hint His condition is not complicated by other psychiatric conditions such as anti-social personality, mania, or other conduct disorders. This condition has resulted in a tremendous liability to Mr. "H" - the loss of his job at CN which he held for 26 years. He claims to be highly motivated to do whatever he can, receive treatment, submit to surveillance procedures etc, in order to regain his job. Mr. "H" does not seem to be insincere in this regard.
He is willing to be referred for treatment, which might in fact cause improvement in his condition. I am not in a position to guarantee that he will not steal again, but a treatment program would certainly reduce the change of him doing so. Further, if the company and Mr. "H’ (and perhaps a union representative) were able to arrange some practicable system of surveillance of him at, or on leaving work, or even spot checks at home at Mr. "H’s" financial expense, this would further ensure an improvement in the problem.
According to Dr. Frank, who attended the arbitration hearing, the diagnostic criteria for kleptomania found in DSM IV - Diagnostic and Statistical Manual of Mental Disorders, 4th edition, the American Psychiatric Association lists five diagnostic criteria for kleptomania, all of which he maintains were present in "H":
Diagnostic Criteria for Kleptomania
A. Recurrent failure to resist impulses to steal objects that are not needed for personal use or for their monetary value.
B. Increasing sense of tension immediately before committing the theft.
C. Pleasure, gratification, or relief at the same time of committing the theft.
D. The stealing is not committed to express anger or vengeance, and is not in response to a delusion or a hallucination.
E. The stealing is not better accounted for by conduct disorder, a manic episode, or antisocial personality disorder.
The arbitrator is further referred to the following excerpt from a clinical textbook whose authors and publishers are not cited:
The essential feature of kleptomania is a recurrent failure to resist impulses to steal objects not needed for personal use or their monetary value. The objects taken are often given away, returned surreptitiously, or kept and hidden.
Persons with kleptomania usually have the money to pay for the objects they impulsively steal. Like other impulse control disorders, kleptomania is characterized by mounting tension before the act, followed by gratification and less tension with or without guilt, remorse, or depression during the act. The stealing is not planned and does not involve others. Although the thefts do not occur when immediate arrest is probable, kleptomaniac persons do not always consider the chances of their apprehension, even though repeated arrests lead to pain and humiliation. Kleptomaniac persons may feel guilt and anxiety after the theft, but they do not feel anger or vengeance. Furthermore, when the object stolen is the goal, the diagnosis is not kleptomania, for in kleptomania the act of stealing is itself the goal.
Course and Prognosis
Kleptomania may begin in childhood, although most children and adolescents who steal do not become kleptomaniac adults. The course of the disorder waxes and wanes, but the disorder tends to be chronic. The spontaneous recovery rate is unknown. Serious impairment and complications are usually secondary to being caught, particularly when being arrested. Many persons seem never to have consciously considered the possibility of having to face the consequences of their acts, a feature in line with some descriptions of kleptomaniac patients as people who feel wronged and, therefore, entitled to steal. Some persons have bouts of being unable to resist the impulse to steal, followed by free periods that last for weeks or months. The prognosis with treatment can be good, but few patients come for help of their own accord. Often, the disorder in no way impairs the person’s social or work functioning. In quiescent cases, new bouts of the disorder may be precipitated by loss or disappointment.
Because true kleptomania is rare, reports of treatment tend to be individual case descriptions or a short series of cases. Insight-oriented psychotherapy and psychoanalysis have been successful but depend on the patient’s motivation. Persons who feel guilt and shame may be helped by insight-oriented psychotherapy, because of their increased motivation to change the behavior.
Behavior therapy - including systematic desensitization, aversive conditioning, and a combination of aversive conditioning and altered social contingencies - has been reported to be successful, even when motivation was lacking. The reports cite follow-up studies of up to two years.
Serotonin-specific reuptake inhibitors, such as fluoxetine, appear to be effective in some kleptomaniac patients.
Mr. "H" was first diagnosed as a kleptomaniac by Dr. Frank in December of 1992. It appears that he previously sought assistance from another physician in 1991. This he did following his court appearance for theft charges relating to the stealing of Company property which resulted in his conviction and the assessment of a suspended sentence, with two years’ probation. Following his lawyer’s suggestion, he consulted with his family physician who referred him to Dr. Bexton of Sacre-Coeur Hospital in Montreal. Dr. Bexton apparently saw Mr. "H" a number of times and then referred him to Dr. Frank. It is common ground, however, that at no time did Mr. "H" undergo any therapy or treatment for his condition. As the record indicates, he was involved in at least one incident of admittedly shop lifting plumbing equipment from a hardware store in the months following his discharge.
In light of the medical opinion of Dr. Frank, which was communicated to the Company by the Union, the Employer requested a second opinion from a psychiatrist it retained. Dr. Maurice LeDuc, a psychiatrist in private practice in Montreal, assessed Mr. "H’ on October 26, 1994. Dr. LeDuc, who also attended the hearing, prepared an opinion letter dated October 31, 1994 which came to a different opinion with respect to the griever’s condition. In Dr. LeDuc’s opinion, there was no indication during the course of his interview with "H" that the grievor exhibited the symptoms of kleptomania, notably an uncontrollable urge or compulsion to steal followed by a feeling or a sense of gratification or relief. Dr. LeDuc stated at the arbitration hearing that he found the grievor’s tendency to blame others for his problems and to make excuses for certain of the items found in his possession did not suggest a diagnosis of kleptomania. He formed the opinion that the grievor has an obsessive personality coupled with "obscure ethical values". His opinion, in translation from the original French, contains, in part, the following:
In response to the question about which I was asked to prepare this report, I have concluded the following:
Throughout the interview, Mr. "H" defended himself vigorously, insisting that many of the items found in his home had been given to him by his superiors. I did not sense any real feelings of guilt in him, but he certainly felt regret, especially about the consequences which have resulted from his actions.
What was noteworthy in his spontaneous remarks, however, was that as he described his acts, nothing indicated a pathological compulsion to steal. In fact, I did not observe the compulsion reported by Dr. Frank. At no time did Mr. "H’ describe an act which he had felt compelled to commit despite himself. In addition, he did not experience the significant relief or anxiety which occurs with compulsive behaviour.
In fact, he never described any moments of anxiety that would have overwhelmed him enough to make him feel forced to steal.
In my opinion, given these facts, this is not a case of kleptomania. The main characteristic of kleptomania is the compulsion to steal in order to reduce the tension linked to anxiety.
I feel that this patient’s case involves obscure ethical values as part of an obsessive-type personality. For many years, Mr. "H" has tended to hoard a great many items of little significant value, and of the type frequently found in the homes of obsessive individuals.
I would also like to point out that, to date, this man never felt the need to seek treatment of any kind. He is, of course, unhappy about the consequences which have resulted from his actions. He says he is ready to submit to any form of monitoring required for him if he is rehired. It is highly probable that he is completely sincere about this.
It is noteworthy that Mr. "H" admitted to having continued to shoplift after 1991. It is difficult to determine whether he has told the entire truth about this issue. Obviously, he discussed the occasions on which he had been caught in the act.
In my opinion, the risk that the patient will steal again is present. Of course, this risk could be minimized if Mr. "H" was very closely monitored, should CN rehire him.
In the case at hand, in light of the outcome, the arbitrator finds it unnecessary to resolve the apparent conflict between the opinions of Dr. LeDuc and Dr. Frank. For the purposes of the award, without necessarily finding, I am prepared to assume the correctness of the position of the Union, based on Dr. Frank’s opinion, that "H" suffers from a condition, described by Dr. Frank as relatively rare kleptomania, coupled with a compulsion to hoarding. Assuming that diagnosis to be correct, the issue becomes to what extent it represents a factor in mitigation which would justify the reinstatement of "H" into his employment.
The exercise of an arbitrator’s discretion under the terms of the Canada Labour Code to substitute a lesser penalty in the case of discharge can generally involve the application of a number of mitigating circumstances. In the case at hand, the grievors age, 54 years, and the length and quality of his service spanning some 24 years, are factors which would normally weigh significantly in this regard. So too would the fact that the grievors acts of theft over a period of some 14 years were prompted by an emotional or psychological abnormality beyond his control. The latter factor would, however, be significant only to the extent that the grievor’s condition could be shown, on the balance of probabilities, to be at present reasonably under control so that to adopt the principles governing the employment of the disabled under the Canadian Human Rights Act, his condition could be accommodated through his continued employment, without undue hardship to the Company.
Unfortunately, in the case at hand, the evidence falls far well short of the standard which would justify the grievor’s reinstatement on such a basis. Firstly and, in my view, significantly, "H’ has not undergone any treatment for his kleptomania since the date of his discharge, over three years ago, in 1991. Although the record is less than clear, it appears that since his discharge he was involved in at least one, and possibly two, incidents of shoplifting for which he was apprehended. Further, Dr. Frank’s opinion, which the arbitrator accepts as given in good faith, candidly reflects scepticism about "H’s" indication that he believes that he can overcome his compulsion for hoarding, and is devoid of any significant assurances that the grievor would not steal again if he is returned to the Shop. In this regard, it is noteworthy that the interior and exterior premises of the Diesel Shop at Taschereau Yard are extremely large, with the interior work areas located on three levels which, for the most part, are not closely supervised, although it appears that surveillance cameras have been installed in recent years. This is not a work setting where close hour to hour supervision is easily implemented. The suggestion of Dr. Frank, that "H’ could return to work if special arrangements could be made to police and supervise him at all times is, with respect, neither practicable nor fair from the standpoint of the employer. In considering this aspect of the case, it is well to remember the following comments of then Arbitrator Adams in Phillips Cable Ltd. (1974), 6 L.AC. (2d) 35 at pp. 37-8:
… In a very general sense, honesty is a touchstone to viable employer-employee relationships. If employees must be constantly watched to ensure that they honestly report their comings and goings, or to ensure that valuable tools, material and equipment are not stolen, the industrial enterprise will soon be operated on the model of a penal institution. In other words, employee good faith and honesty is one important ingredient to both industrial democracy and the fostering of a more cooperative labour relations climate.
The Board feels that these are the sentiments underlying the arbitral castigation of dishonest conduct. Arbitrators are not equating the role of a plant to that of a church. Rather, they are ensuring that the role of the plant will not evolve into a role resembling that of a penal institution.
Unfortunately, the suggestion offered, with the best of intentions by Dr. Frank, is made in relation to an individual who has, to date, obtained no treatment for his condition. Whatever it’s medical value, it is less than persuasive or compelling from an industrial relations standpoint. Dr. Frank recommends, in effect, that the employer institute, presumably on an indefinite basis, police measures to constantly observe and regularly search Mr. "H’ following his return to work, apparently as a deterrent to his further engaging in theft and, it appears, as a catalyst to his rehabilitation. In the arbitrator’s view, such a prescription goes beyond the obligation of the employer, even as it might be defined in relation to the duty of reasonable accommodation of a psychiatric disability. Very simply, it is, in my view, beyond the standard of undue hardship to ask the employer to return an individual to the workplace who will, in all probability, steal again and whose day-today employment will involve changing a largely unsupervised work setting to require continual vigilance on the part of supervisors, fellow employees and security personnel.
Whatever result might have obtained had the grievor presented himself at arbitration following extensive treatment, with a more positive prognosis for the control of his condition, in the case at hand there is no responsible basis upon which the arbitrator can direct the employee’s return to the workplace. To do so, in the circumstances presented, would place upon the employer obligations which involve substantial hardship and which, in the end, would result in little or no real likelihood that the grievor’s propensity to uncontrolled theft will not continue, and be acted upon, even under circumstances of more limited opportunity.
For the foregoing reasons, the grievance must be dismissed.
DATED at Toronto this 6th day of December, 1994.
(signed) MICHEL G. PICHER