SHP –410


B E T W E E N:


(the "Company")

- and -


(the "Union")



ARBITRATOR: Michel G. Picher



Katya Laviolette – Counsel

Doug Fisher – Manager, Labour Relations

Norm Parson – Special Agent, CP Police

Ann Watson – Consultant



Abe Rosner – National Representative

Pierre Cantin – Grievor



A hearing in this matter was held in Montreal on July 22, 1996.


A W A R D 

This arbitration concerns the discharge of Boilermaker L.P. Cantin for the alleged unlawful possession of Company-owned material. The dispute and Union statement of issue briefly describe the nature of the grievance and read as follows:


Discharge of Boilermaker L.P. Cantin of Pointe St. Charles Main Shops for possession of Company-owned material.

Union Statement of Issue

On September 5, 1991, CN Police executed search warrants at the principal residence of Mr. Cantin in St-Basile-le-Grand, as well as at his cottage in St-Eugène-de-L’Islet.

The CN Police seized material valued by them at $1,403 from the grievor’s principal residence and material valued by them at $93 from his cottage.

On September 6, 1991, Mr. Cantin was suspended pending an investigation into the above, which was conducted on September 23, 199. He was subsequently discharged effective September 5, 1991 for being in possession of Company-owned material.

The Union contends that the discipline assessed Mr. Cantin is unwarranted and requests that the grievor be reinstated into service and made whole.


Abe Rosner

for the President, Local 100

Signed June 18, 1996

At the outset of the hearing, the Company raised a preliminary issue with respect to the scope of the grievance. Its representative submits that the grievance, as initially drafted, does not categorically assert that there was no just cause for discipline. The Employer’s representative argues that the grievance, in the form of a letter dated October 15, 1991 merely challenges the measure of discipline assessed against the grievor as being excessive. The Union’s representative counters that the letter is a document of general expression, and should not be construed in a limited fashion as argued by the Employer. In light of the disposition of the grievance on its merits, the arbitrator finds it unnecessary to deal with this issue.

CN Police were advised during the summer of 1991 that the grievor had Company-owned material at both his home in St-Basile-le-Grand and his cottage in St-Eugène-de-L’Islet. Search warrants were obtained and the grievor’s home and cottage were subsequently searched on or about September 5, 1991. Some 45 items which the Company alleges are CN-owned tools and materials, valued in excess of $1,400.00 were seized from Mr. Cantin’s home. A search of his cottage revealed a pair of rubber boots, a blanket and a first aid kit bearing the Company’s logo, which items were also seized. Their estimated value is some $92.00.

During the course of the Company’s investigation, the grievor declined to give any explanation of the materials found in his possession, on the basis of his lawyer’s advice. He was charged with theft of goods of a value less than $1,000.00, contrary to Article 334(b)(i) of the Criminal Code of Canada, as well as possession of the same goods, contrary to Article 355(b)(i) of the Code. Mr. Cantin was acquitted of the criminal charges in a judgement rendered on June 3, 1994.

It appears that Mr. Cantin gave essentially the same explanation for his possession of the goods in question at the criminal trial as he now gives before the arbitrator. Firstly, he states that all of the items found in his home were purchased by himself, either at flea markets or commercial outlets such as Canadian Tire and Pascal’s. He also submits that certain items found at his home, such as a coal shovel received from his grandfather bearing the CN logo, were given to him as gifts. He states, for example, that three vice grips in the shape of c-clamps were given to him by his father.

According to Mr. Cantin, the charges against him were fabricated by his ex-sister-in-law, Ms. Sylvie Garneau who, it is not disputed, was the informant who contacted the CN Police. He relates that he and his wife were in a substantial family conflict with Ms. Garneau with respect to the custody of his wife’s mother, and certain previous dealings by Ms. Garneau with respect to her mother’s property. He further explains that he has not been to his cottage, which is a hunting and fishing camp, for some two years although a number of family members have had free access to it. The suggestion advanced by Mr. Cantin is that any items of CN property found at that location would have been placed there by his sister-in-law as part of a scheme to cause him harm.

The arbitrator has much difficulty with the explanations offered by Mr. Cantin, when regard is had to the totality of the evidence. The Company’s case includes a report by a ballistics expert, dated November 1, 1991. It confirms that a microscopic examination of at least one of the vice clamps found in the grievor’s possession, at his home, discloses the letters "CN" stamped into the surface of the metal, with an attempt to superimpose the engraving of the letters "CAN", the first three letters of the grievor’s name, on top of them. Although the grievor maintains that he simply attempted to engrave his own name on the clamps, given to him as a gift by his father, there is reason to doubt that explanation, at least with respect to one of them.

Further concern arises with regard to other items found in his possession, at his home. Among the things found are a substantial number of drill bits. While many of them are either in a loose form or are contained in plastic boxes, there are some five bundles of drill bits rolled inside paper towelling which is wrapped with masking tape. The evidence of CN Police special agent Norm Parsons confirms that, according to his experience with other thefts, it was common practice for employees engaging in pilferage at the Pointe St. Charles shops to wrap tools and equipment in paper towelling and masking tape when removing them from the premises, whether in lunch pails, personal bags or otherwise. Mr. Cantin relates that he merely wrapped the drill bits in the paper towelling and masking tapes as a means of preventing them from striking against each other, to avoid causing possible damage.

The arbitrator finds that explanation highly implausible. Among the items found in Mr. Cantin’s possession are some 700 plastic tie-binds, of a type stocked by the Company, which could readily have been used to wrap and secure drill bits, if that was the objective. Why drill bits would be in a wrapped and concealed form within the grievor’s own workshop is, in my opinion, far from well explained. They would appear, on the balance of probabilities, to be so packaged so as to conceal them, rather than to protect them.

What then does the evidence disclose? Items bearing the Company’s logo were found at the grievor’s cottage. Even if one accepts that they were planted there by someone else, as Mr. Cantin alleges, the state of certain items found within his home is more consistent with theft or the possession of stolen goods than with his explanation. In particular, the expert documentary evidence obtained by the Company does confirm that at least one of the vice-clamps in his possession was previously stamped with the CN logo, with an attempt to engrave his own name over the top of the original marking. As indicated above, the finding of a number of bundles of paper towelling and masking tape containing substantial numbers of drill bits is, in the arbitrator’s view, not adequately explained by Mr. Cantin. Having regard to the totality of the evidence, I am satisfied, on the balance of probabilities, that the grievor was in possession of items stolen from the Company, and that he was in such possession knowingly.

The issue then becomes the appropriate measure of discipline. The record discloses that the grievor was once previously disciplined for theft of Company property. In March of 1987, he was found to have stolen tools valued at some $50.00, as a result of which he was suspended for 10 days and assessed 30 demerits, a discipline which was not grieved, notwithstanding the present explanation that he had merely borrowed the tools in question and forgot to return them when his building project was delayed by bad weather.

On the whole the arbitrator finds it difficult to see any mitigating factors that would justify a substitution of penalty in this case. It is well established that theft is, prima facie, a dismissable offence, as it goes to the root of the relationship of trust between employer and employee. In the instant case, I am satisfied, having particular regard to the prior discipline assessed against Mr. Cantin for an earlier incident of theft, that the bond of trust between himself and the Company cannot be restored.

For the foregoing reasons, the grievance must be dismissed.

DATED at Toronto this 26th day of July, 1996.