SHP 455

IN THE MATTER OF AN ARBITRATION

BETWEEN:

ST. LAWRENCE & HUDSON RAILWAY COMPANY

(the "Company")

AND

NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW-CANADA) LOCAL 101

(the "Union")

GRIEVANCE OF: MACHINIST N. NOBARIAN

 

 

SOLE ARBITRATOR: Harvey Frumkin

 

 

There appeared on behalf of the Company:

Gilles St-Pierre Coordinator, Human Resources

Alain Y. de Montigny Agent, Labour & Industrial Relations

 

And on behalf of the Union:

A. Rosner National Representative

Sylvain Levert Regional Vice-President, Atlantic Region

 

 

A hearing in this matter was held at Montreal on November 20th 1997.

 

 

AWARD

The Grievor, Mr. N. Nobarian, a machinist in the employ of the Company was made the object of an investigation concerning missing Company property on March 28th 1996. He had accumulated some twenty-two years of service to that time.

During the initial phase of the investigation Mr. Nobarian stated that he was not in possession of any property belonging to the Company, either at his residence or at his garage which served as his workshop. At the request of the Company's internal security he agreed to cooperate in a search at these two locations. During the course of this search, Company property having an estimated value of $1,000.00 was discovered. The property, most of which bore C.P.R. engravings, was identified on March 28th 1996, as follows:

1 Tire-Fort ( chain block ) 1/2 tonne "JET", modele L-90, no. serie 003, gravé CPR

2 torches a souder MONTOX gravées CPR

1 pince a manche rouge, gravée St.Luc

1 paire de "vice grip" gravée CPR

2 "IMPACT GUNS" gravés CPR

1 jeu de 23 douilles et une barre de rallonge "Snap on" gravés CPR St. Luc

1 jeu de 3 limes gravé St.Luc

1 gratteur gravé CPR

1 jeu de 6 poincons rouges gravé St.Luc Diesel.

1 jeu de 16 meches de perceuse gravé CPR St. Luc

1 barra de force gravée CPR

1 botte de collet Tridents

1 botte de cutter pins

1 boite de vis assorties.

Mr. Nobarian insisted that the items discovered had not been stolen. He stated that he had purchased some of them at a flea market, that others had been inadvertently carried home with his work clothes and that still others had been left at his home or workshop by fellow Company employees.

The Company for its part immediately suspended Mr. Nobarian pending further investigation and on March 29th 1996, issued the following letter of suspension:

Saint-Luc le 29 mars 1996

Monsieur Vartan Nobarian 294208

Objet: Mise à pied administrative.

Monsieur, nous venons de recevoir un rapport du departement des enquêtes de la compagnie à l'effet que du materiel appartenant à la compagnie a été saisi à votre atelier de mecanique le 28 mars.

Pour cette raison, en vertu de l'article 28.1 de la convention collective, vous serez suspendu jusqu'à ce que l'enquête disciplinaire soit completée.

En conséquence, veuillez vous présenter à mon bureau accompagné de votre représentant accredité, jeudi le 4 avril 13:00 afin que je puisse prendre votre déclaration.

Le Coordonnateur des Ressources Humaines Villes St-Pierre

Following two subsequent interviews of Mr. Nobarian by Company representatives, the Company concluded that the property found in his home and garage had been stolen. On May 2nd 1996, it took the decision to discharge him. The letter of discharge read as follows:

Montréal, le 2 mai 1996 Formule: 104

M. V. Nobarian NP: 294208

Machiniste

Atelier diesel de Saint-Luc

Monsieur:

La présente est pour vous informer que vous avez été "congédié" pour "avoir volé des objets appartenant à la compagnie qui ont été rétrouvés à votre domicile ainsi qu'à votre atelier de mecanique le 26 Mars 1996.

Mario Bergeron pour Don Brazier

Directeur des Relations Industrielles

The position advanced by the Union at the hearing was that the Company has improperly characterized the actions of Mr. Nobarian as theft. It contended that his demeanour and cooperation throughout were inconsistent with such a characterization. It explained that Mr. Nobarian had readily cooperated in the search of his home and garage, a factor which serves to indicate that in his mind he had done nothing improper. Finally, it pointed out that Mr. Nobarian was made the object of criminal prosecution for theft and was acquitted.

This is a case where an employee, under suspicion, was found to be in possession of a significant number of tools, property of the Company, at his home and garage. He initially denied that he was in possession of any property belonging to the Company and it was only when the tools were discovered that he offered a number of explanations as to the manner in which they came to be in his possession.

The explanations offered present extreme difficulty when measured against the number of items which were discovered. This is not a case where the Grievor had in his possession a single item which he may have come across at a flea market, as he pretends, or which he may have inadvertently carried home from work. The list of items found in the Grievors possession was extensive, encompassing some sixteen listed items in all. He knew them to be Company property and if he had carried them home inadvertently or if they had been left at his home or garage by other employees of the Company, he should have returned them. The proper course for the Grievor to have followed in such case (if it were the case) is outlined in decision AD HOC 331 April 28, 1994, where the arbitrator states:

According to Mr. Gillespie, while he had every intention of returning the tools after he was finished using them either at his residence in Waubashene or at the rooming house in Barrie, he simply forgot to do so.

Clearly, employees who take their own tools home, with or without making an entry in the log book, are fully expected to return them immediately after their personal use is completed. In that context, even if I should accept the(sic) Mr. Gillespie "borrowed" the pipe wrenches, hammers, shovels and broom, there was clearly a point in time at which he knew, or reasonably should have known that he had failed to return them and was for all practical purposes, treating them as his own property.

It is in evidence that there is a procedure in place for removing Company property for use beyond its premises. That procedure requires the securing of official authorization in conjunction with completion of the prescribed form. The Arbitrator has extreme difficulty in accepting that all of the many items found in the Grievors possession found their way into his possession in the various ways he suggests while at the same time not a single one of these many items had been secured in accordance with procedures in place, which procedures were well known to the Grievor.

On the whole, while there may well have been a reasonable doubt at criminal law as to whether the Grievors intention was of a criminal nature, there is certainly ample and compelling evidence before the Arbitrator to support a conclusion that the Grievor wilfully misappropriated property, which he knew to belong to the Company, for his own personal use and in so doing placed his honesty and integrity into question. The only issue that remains is whether discharge was the appropriate response in the circumstances.

The principle is well accepted that discharge is not an automatic response in cases of misappropriation of Company property or indeed even theft. There is authority for the proposition that arbitrators, in their discretion, and where they deem it appropriate, may substitute a lesser sanction in place of discharge even in theft cases. However, there is a corresponding principle, equally well established, that intervention in such cases will be reserved for those special circumstances where the property stolen is of little value, the action is the result of a momentary impulse or lapse or is of an isolated nature, the employee's behaviour is completely out of character and other such mitigating factors, all of which permit for a conclusion that recurrence is unlikely and the honesty and integrity of the employee have not been compromised to the point where he is no longer worthy of trust. Long service of an employee in the presence of such factors will be an important consideration.

A number of decisions cited by counsel for the Company serve to illustrate how these principles find application in practice. In CROA 1814 an employee classified as a cashier with thirty-two years of service engaged in the petty theft of cash totalling $120.00 and some sixty bus tickets. The arbitrator's reasons for intervening in what he considered to be a case of extreme hardship appear from his lengthy review of the Grievor's circumstances and his appreciation of these circumstances when measured against the fraudulent misappropriation for which discharge was imposed.

In the Arbitrators view the motive for theft is a consideration that can be looked to, among others, in assessing an employee's conduct and the likelihood of his or her rehabilitation. The material in this case discloses, again without dispute, that commencing in November of 1986 Mr. Roper was met with a period of considerable personal economic hardship. He has a wife and an adoptive daughter to support. His spouse, who has suffered two heart operations in recent years, is unable to work or otherwise contribute to his family's income. In November of 1986 a garnishee order was placed by a bank against Mr. Ropers earnings in an amount totalling close to $10,000.00. In consequence of that order his wages were continuously reduced by an amount of $550.00 each month. In light of a further deduction of $300.00 in each two-week pay period for a credit union mortgage loan, Mr. Roper was left with a take-home pay of little over $100.00 per two-week pay period. It was, needless to say, extremely difficult for him to care for himself, his wife and their daughter on not much over $50.00 a week.

Driven to this extreme, and with no further prospect of obtaining credit, Mr. Roper removed small amounts of cash, usually $2.00 daily, and in the latter stages of his pilferage, two bus tickets daily, to assist him in getting to and from work and, by his own uncontroverted explanation, to buy bread and milk for his family.

It should be stressed that the essential truth of this tragic account is in no was questioned by the Company. To the contrary, the material further discloses that following the investigation into Mr. Roper's conduct, the supervisory officer who conducted the investigation, an individual with whom he has worked for years, visited his home and personally gave him money to assist with the purchase of fuel oil and groceries. There is little doubt that this case involves a unique case of hardship and the grievor's desperate struggle to provide the necessities of life for his family,

In support of its decision to terminate the grievor, the Company's representative stresses that he was involved in more than one act of misappropriation. While it is true than(sic) his daily removal of amounts of $2.00 and two bus tickets over a period of weeks can be so construed, the Arbitrator is satisfied that what is disclosed in the instant case is an aberrant and clearly uncharacteristic course of conduct precipitated by unusual circumstances over a short period of time. While Mr. Ropers actions may be fairly described as more desperate than compulsive, they are not, in the Arbitrator's view, comparable to the acts of self interested and wanton theft disclosed in the cases cited above. Mr. Roper pilfered cash and bus tickets for the sole purpose of enabling him to continue to hold his job by commuting, to provide his family with the barest necessities of food and to contribute to that part of his wife's medication that was not covered by his insurance plan. While these facts do not alter the strict characterization of his actions as theft, they are factors that must be taken into account in assessing whether his employment relationship must be viewed as irretrievably destroyed.

A further factor is the longevity and quality of Mr. Roper's prior service to the Company. For thirty two years prior to this incident he was an exemplary employee who, extraordinarily, was never once disciplined by the Company. In the Arbitrator's view if an employee's negative record can properly be looked to to justify a greater measure of discipline, so too can a positive record be given weight in mitigating discipline, particularly where, as in the instant case, there are compelling circumstances to do so.

The material further establishes that in the grievor's case discharge has a particularly devastating impact. As one nearing fifty years' of age with no other employment background, his prospects for further work are dim. Moreover, should Mr. Roper be compelled by circumstances to draw on his pension at the age of fifty-five when he would first be entitled to do so, his pension benefits for life will be cut in half by virtue of the fact that he was involuntarily discharged.

While none of the above factors, standing alone, might automatically tip the scales in favour of the grievor, taken together they are a formidable set of factors which, in the Arbitrators view, establish an exceptional case for substituting another penalty for the grievor's termination after thirty-two years of employment. The longevity of his service, the irreproachable quality of his prior record, the tragic circumstances that motivated his actions in a single episode over a relatively short period of time, the clearly frank admission of wrongdoing, including the volunteering of information not known to the Company, and, lastly Mr. Ropers clear understanding of the error of his actions, all militate compellingly in favour of a substitution of a lesser penalty in this exceptional case.

This same arbitrator in another case, CROA 1835 refused to intervene in the case of an employee with twelve years of service who fraudulently submitted a false wage claim given the absence of compelling mitigating circumstances. His conclusions are summed up in the following passages of the decision:

Are there any reasons to mitigate against the penalty of discharge in this case? Having commenced employment with the Company in December of 1974, in relative terms the grievor is something less than an employee of extremely long service. As a running trades employee the grievor works in a form of service whose remuneration is based in part on time and mileage in circumstances which cannot be directly supervised by his employer. The grievor is, therefore, in a position of substantial trust with respect to the submission of trip tickets claiming the payment of his wages.

In the instant case the conduct of the grievor is a form of theft. It is trite to say that such conduct, particularly in a position where a relationship of full trust is essential to the nature of the job, the most serious measure of discipline is justified. Decisions resulting in dismissal have consistently been upheld by this Office in such circumstances (see CROA 461, 478, 899, 1472 and 1471)."

Even in the case of an employee with thirty-five years of service who stole twelve one litre bottles of motor oil from the shop where he worked (Canadian Pacific and Brotherhood Railway Carmen of Canada, grievance of .M. Lawrence, decision of November 28, 1988, J.F.W. Weatherill, arbitrator) the arbitrator was not prepared to intervene. In concluding that no overwhelming circumstances had been demonstrated, the arbitrator in dismissing the grievance emphasized the importance of the element of trust which he regarded as essential to the employer employee relationship. The opinion of the arbitrator is summed up in the following passage taken from the decision.

That the grievor's loss is very substantial is undoubted. The grievor will be eligible for pension in the normal course. Pension benefits, the Company states, are available to the grievor now (on an actuarially- reduced basis), and have been since January, 1987. It would not be appropriate, however, to compare his loss with the undoubtedly lesser penalty which might be imposed upon conviction of a criminal offence in relation to the same matter. The employment relationship is a two-sided one in a sense in which a citizen's relationship with society in general is not. To reinstate an employee who has stolen his employers property is, except in special cases, to impose on the employer and on fellow employees a person whose actions have struck at the very root of the employment relationship. Such an imposition is proper only in very special circumstances - as, for example, were found to exist in CROA case no. 1814, but which do not exist here. In general, what was said in CROA case no. 806 applies equally here: "That such acts should be committed by a long-service employee is a very sad thing, but does not make the case an exception to the general rule that theft is grounds for discharge.

In the present case, despite the Grievors twenty-two years of service, compelling mitigating circumstances, in the nature of those as might justify intervention, are simply not present. This would be particularly so given the extensive number of items misappropriated and their value which was certainly not insignificant. The Arbitrator is not even certain that intervention under any circumstances would have been warranted in this case given the nature of the misappropriation. As stated, the number of items misappropriated is extensive. A conclusion that the actions of the Grievor were not at all isolated or the result of a momentary impulse but were repetitive in their nature and occurred over a considerable period of time is compelling. In short the Arbitrator can see no basis for intervention in this case.

For the foregoing reasons the grievance is dismissed.

Montreal, November 28,1997.

(signed) HARVEY FRUMKIN

ARBITRATOR