IN THE MATTER OF AN ARBITRATION

BETWEEN

CANADIAN PACIFIC RAILWAY COMPANY

 (the "Company")

AND

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

(the "Union")

RE: DISCHARGE OF CARMAN ALAIN ALBERT

 

Sole Arbitrator:        Michel G. Picher

 

Appearing For The Union:

Abe Rosner                        – National Representative, CAW, Montreal

Ron Laughlin                       – Regional Vice-President, Eastern Region, Local 101

Sylvain Levert                     – Vice-President, Atlantic Region, Local 101

Alain Albert                         – Grievor

 

Appearing For The Company:

Gilles Pépin                        – Labour Relations Officer, Calgary

John Bate                            – Labour Relations Officer, Calgary

Dave Guerin                       – Labour Relations Officer, Calgary

G. St-Pierre                        – Human Resources Coordinator, St. Luc

 

 

A hearing in this matter was held in Montreal on November 17, 1999.

AWARD

This arbitration relates to the discharge of the grievor for the theft and possession of Company property.

The facts surrounding the grievance are not in substantial dispute. Because of a “tip-off” concerning the alleged theft of an all-terrain vehicle from Company property by the grievor and another employee, an accusation which later proved entirely groundless, Mirabel police, accompanied by CP police, conducted a search of the grievor’s home on April 16, 1996. It may be noted that at that time the grievor had been laid off from the St. Luc Car Shop, and was in receipt of enhanced SUB benefits under article 7(b) of the Job Security Agreement.

A search of the grievor’s home revealed a number of items which belonged to the Company. These included three shovels, three carman’s lanterns, two flashlights, a staple gun, a wheel gauge used for measuring rail car wheels, a metal punch and a leather tool belt. These apparently totalled approximately $350.00 in value.

During the course of the disciplinary investigation which ensued the grievor followed the advice of his lawyer, which was that he should offer to provide a full explanation to the Company, but only after the criminal charges pending against him had been disposed of. The grievor and his Union unsuccessfully sought an adjournment of the Company’s disciplinary proceedings pending the outcome of the criminal charges against Mr. Albert. The record discloses that ultimately the grievor did plead guilty to the possession of stolen goods under $5,000.00, for which he was assessed a fine of $300.00 on November 13, 1997. In the interim, however, the Company proceeded to discharge Mr. Albert for the theft of its property.

In effect, the arbitration hearing is the first occasion on which the grievor has explained the items in his possession. His Union representative relates that the guilty plea which he entered was made upon the advice of his legal counsel, in part to avoid the risk of a trial and adverse findings against him in relation to greater charges. The Union submits that the explanations given by Mr. Albert at the arbitration hearing do substantially mitigate against the suggestion that he engaged in a systematic or deliberate course of conduct of a nature to undermine the viability of his employment relationship. When careful regard is had to the totality of the evidence the Arbitrator is persuaded that there is some validity to that assertion.

As the jurisprudence reveals, theft of an employer’s tools, materials or equipment is among the most serious of disciplinary infractions. The cases are legion in which it has been stated that theft breaks the bond of trust which is at the root of the employment relationship. (See, e.g., SHP 255, a decision between CP Rail and the Brotherhood of Railway Carmen of Canada, an unreported award of Arbitrator Weatherill dated November 25, 1988, CROA 1222 and CROA 1165.)

The evidence of Mr. Albert, which I accept, is that the bulk of the items which were found at his home were in fact the tools of his trade, which he normally kept either at home or in one of his vehicles for his own use while at work. While he was based at the St. Luc Car Shop, it was not uncommon for him to be dispatched to other locations of work within the Montreal area, such as the Hochelaga Yard and the port of Montreal. To that end he maintained a work pouch, which he kept in his possession at home, which contained such items as a blue carman’s lantern, a flashlight, the staple gun and the wheel gauge which were found in his possession by the police. He relates that having those items in his own possession made it more efficient and easier for him to perform his work when called directly to locations other than his base at St. Luc Yard, where he kept similar tools within his locker. He further relates that he kept a carman’s lantern in each of his two vehicles, as well as in his work pouch, to facilitate matters when he might be called to work at another location. According to his evidence, upon being laid off he anticipated that he might be called back to work, and therefore preferred to continue to have these items within his possession in the event that that should occur.

Mr. Albert candidly states that he cannot recall the reasons why he had a metal punch in his possession, although he believes that it might have been work related. He also acknowledges that the three shovels which were found at his home were not among his working tools. These, he relates, were borrowed from the Company, apparently with the approval of his then supervisor, for the purpose of removing shingles from his home during the course of renovations performed during the early 1990s. By his account he simply forgot to return them, and that proper documentation for their loan had never in fact been filled out.

Mr. Albert is an employee of sixteen years of service with no substantial discipline on his record, save two cautions for being late to work. In the Arbitrator’s view his explanation for his possession of the Company’s tools is plausible, and having regard to his demeanour, I find it to be credible. There is in the evidence before me no basis upon which to conclude that he deliberately pilfered tools for his own gain, or indeed that certain of the tools in question, such as the wheel gauge, could in fact be turned to his own use. It does not appear disputed that Mr. Albert has his own shop with tools valued in excess of $20,000.

It is trite to say that each case must be determined on its own particular facts. In the case at hand it is obvious that upon his layoff the grievor should have returned the tools which he kept at his own home for use during his work assignments away from St. Luc Yard. He was not entitled to hold them in the event of a possible recall to work. That said, however, when regard is had to the totality of the facts, I am inclined to agree with the Union’s representative that what is disclosed, apparently for the first time at arbitration, is a course of conduct more consistent with an error of judgement on the part of the grievor rather than with a calculated course of conduct executed by a dishonest individual in circumstances which irrevocably undermine a viable employment relationship.

In the result, I am satisfied that the substitution of a suspension for the period of the grievor’s time off work, which is extensive, is appropriate in the particular circumstances of this case. The Arbitrator therefore directs that the grievor be reinstated into his employment forthwith, without compensation for wages and benefits lots, and without loss of seniority.

Dated at Toronto, November 22, 1999

_________________________________________

MICHEL G. PICHER

ARBITRATOR