IN THE MATTER OF AN ARBITRATION
CANADIAN PACIFIC RAILWAY COMPANY
NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW-CANADA) LOCAL 101
RE: DISCHARGE OF CARMAN J. JUNEAU
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 Séguin – Local Chairman, Montreal
Jacques Juneau – Grievor
Appearing For The Company:
Gilles Pépin – Labour Relations Officer, Calgary
John Bate – Labour Relations Officer, Calgary
Dave Guerin – Labour Relations Officer, Calgary
A hearing in this matter was held in Montreal on November 18, 1999.
The grievor, Carman Jacques Juneau, was discharged from Company service on February 18, 1994 for “… theft of customer property at the Racine Terminal, Montreal during the month of December 1993.” The Union submits that the discharge of the grievor was excessive in the circumstances, and that the substitution of a lesser sanction is appropriate. The Company maintains that the facts disclose a course of dishonest conduct on the part of Mr. Juneau which justifies its view that he has severed the bond of trust essential to his employment relationship.
Certain of the facts are not contradicted. In December of 1993 Mr. Juneau was assigned as a sole carman, effectively working alone at the Racine Terminal, an intermodal facility located in the port of Montreal. It appears that he held that assignment for some two months, working from 23:00 hours to 07:00 hours, without direct supervision, although he was under the nominal direction of a supervisor at the St. Luc Yard.
The evidence discloses that a shipment arriving in the port on the night of November 24, 1993 had been severely damaged at sea. A container, which held some 1,200 cases of Mouton Cadet wine destined for the Liquor Control Board of Ontario, had had an entire wall torn away, with damage to certain of the contents. According to the grievor’s account, after initially being stored in a secured garage, the damaged container was placed in an outdoor location adjacent to a security shack. Mr. Juneau relates that in the ensuing days he observed employees of the port facility removing cases of wine from the container for their own use or consumption. He further relates that eventually a supervisor of the Racine Terminal facility, a company which is not under the direction of CP Rail although corporately related, told a number of individuals, including himself “If anyone wants any wine, it’s time to take it, because it’s all going to be destroyed.” According to the grievor’s account, the explanation was given that the wine had in fact been frozen, and was therefore considered unfit for sale or commercial consumption. He relates that he tried the wine and found it to be drinkable, and therefore decided to remove some for his own use, and for sale to others.
The evidence confirms that Mr. Juneau in fact removed approximately fifty cases of wine from the facility, carrying three different loads of cases in his own car on the nights of December 3, December 6 and December 7. It is not disputed that on certain occasions he had assistance from one of the security guards in loading the cases. He relates that his arrangement with the guard was that the guard would be credited with the value of five cases, in consideration of which the grievor eventually paid him $300.00. He further admits that he sold the approximately fifty cases which he removed for a value of $50 to $60, realizing gross receipts to himself to a value of approximately $3,000.
Following an investigation by CP police, the grievor’s removal of the cases of wine came to the attention of the Company, which subsequently held a disciplinary investigation which led to his discharge for theft of the property of a customer.
Neither party to these proceedings disputes that theft, and in particular systematic theft for personal profit, is grave conduct which would justify the discharge of the employee involved. In the instant case, however, the Union submits that the objective facts raise mitigating factors which should justify the substitution of a lesser penalty. It stresses the undisputed fact that the wine in question was condemned and slated to be destroyed. The Union’s representative further submits that the fact that a port supervisor gave the apparent green light to employees to help themselves to the wine is indicative of something less than a sinister or dishonest intention on the part of Mr. Juneau, who, he stresses, provided a full and forthcoming explanation of all of the facts.
Upon a careful review of the evidence the Arbitrator has some difficulty with the assertion of the Union in this case. Boards of arbitration in the railway industry have had ample opportunity to consider the appropriate measure of discipline in cases of theft, and in particular cases of theft involving material which was allegedly scrapped or thrown away. (See, e.g., SHP 120, SHP 158, SHP 455, CROA 135, CROA 824 and CROA 2864.) CROA 2864 concerned the removal of scrap steel from Company property by two employees who sold the scrap for their own profit. With regard to the evidence there under consideration the Arbitrator commented as follows:
The Arbitrator has some difficulty with the position advanced by the grievor. Mr. Drew knew, or reasonably should have known, that the scrap material which he removed from Company property to sell for his personal profit was the subject of some arrangement between the Company and one or more contractors. The decision to simply take the material, during working hours and with the assistance of a Company vehicle, within a relatively short period of days from the time the contractors left the premises, is highly questionable. As an employee of the Company, at a minimum, the grievor had an obligation to make reasonable enquiries of supervisors to determine whether it would be permissible to remove the material and sell it for his own gain. The failure to make any such inquiry tends, if anything, to support the inference that the grievor knew what the answer to such an inquiry would be, and acted in deliberate disregard of and contrary to the Company’s best interests.
If, as the Union’s representative contends, the grievor’s actions were all undertaken in complete innocence, or on the basis of a mistaken understanding, there might well be some merit to its argument. However, as a matter of principle, boards of arbitration may require employees to bear a onus of explanation when they are found in possession of property in circumstances which are compromising or would give rise to adverse inferences. (See Marriott Corp. of Canada (1998), 75 L.A.C. (4th.) 1 (Brandt); Greater Victoria Drug and Alcohol Rehabilitation Society (1998), 71 L.A.C. (4th) 239 (Hope); and see generally Brown and Beatty, Canadian Labour Arbitration at para. 7:3312.)
In the instant case there are elements which cause the Arbitrator concern. Firstly, while the Union asserts that the grievor operated under a colour of right granted to him verbally by a supervisor of the Racine Terminal, there is no evidence before me from any such supervisor, or any other employee on the premises, to corroborate that such a statement was in fact made. While that evidence can of course be given by the grievor, given its extreme self-serving nature it is not unreasonable to expect corroboration through other objective evidence. None has been forthcoming. Secondly, the Arbitrator has some difficulty with the circumstances under which the three shipment of cases of wine were removed by the grievor. If, as he says, he was given the right to take the wine, he could well have done so at the conclusion of his normal tour of duty. In fact, he took an hour of working time, on three separate occasions, to load and tranship the wine to his residence, returning to work to complete his tour of duty. I have some difficulty with his explanation that he felt that he could not safely drive home with his car so heavily laden during morning rush hour traffic. His actions are, at a minimum, consistent with a more sinister motive, to avoid detection. There is clearly an element of dishonesty in the grievor utilizing working time in the way he did, without any authority to do so, which cast a pall upon other aspects of Mr. Juneau’s credibility in this matter. Additionally, the Company notes that its own efforts at independent investigation failed to produce any confirmation of a directive being made by any port supervisor authorizing the removal of the wine by individual employees.
The evidence further confirms that the grievor was criminally charged for his actions and pleaded guilty to theft of the goods in question. While his guilty plea is admissible as an admission against interest, it is also open to him to provide an explanation. In this case his explanation, being that he was simply advised to plead guilty by his lawyer, is less than reassuring, although admittedly not probative of the issue before me.
On the whole, I am not satisfied that Mr. Juneau has been sufficiently forthcoming with a persuasive explanation in justification of his actions. It is clear that he removed a substantial quantity of cases of wine, did so during working time, in complicity with a security guard, in circumstances which appear clearly surreptitious. By his own admission his scheme was in furtherance of a relatively organized initiative to gain a considerable personal profit for himself. To borrow from the jurisprudence, at the very least, the grievor would have been under an obligation to inquire with his own supervisors as to the propriety of taking and selling goods which, it does not appear disputed, continued to remain the property of the consignee, a customer of the railway. In the circumstances I am satisfied that the grievor’s actions were such as to sever the bond of trust essential to the employment relationship, and that his discharge was justified.
For the foregoing reasons the grievance must be dismissed.
Dated at Toronto, November 22, 1999
MICHEL G. PICHER