SHP 699

IN THE MATTER OF AN ARBITRATION

BETWEEN:                                                    CANADIAN NATIONAL RAILWAYS

AND                                                               CAW/TCA Local 100

AND IN THE MATTER OF THE GRIEVANCE OF J. LYNCH

ARBITRATOR:                                             J.F.W. Weatherill

A hearing in this matter was held at Montreal on October 26, 2012.

B. Stevens, for the union.

R. Bateman, for the employer.

AWARD

The grievor, an Electrician, having just under six years`service with the company, was discharged for “unauthorized possession of company property”.

During the course of the grievance procedure, and at the hearing, the union raised a number of matters which, in its view, would render the imposition of discipline null and void.  I shall deal with these briefly at the outset of these reasons, and then proceed (since I do not consider the objections to have merit), to deal with the substance of the case.

The union contended generally that the company acted in bad faith and was over-zealous in conducting searches of the grievor’s tool box, back pack, locker, vehicle and private residence.  As the circumstances to be described will show, the company had legitimate concerns about thefts of material (in particular, wheel bearings, which it appears were stolen and probably sold for scrap). The grievor was found, near the end of his shift on Sunday, May 13, 2012 (the day following his rest days) in circumstances which the company considered (not without some reason), suspicious.  Company police were called, and the grievor, who was cooperative at all times, consented to all of the searches referred to.  Nothing in the material before me shows that the company had any previous ill-will towards the grievor, and I find the suggestion that it acted in bad faith completely unfounded.

The union contended that the company did not conduct a fair and impartial investigation of the matter, as the collective agreement requires.  In fact a lengthy investigation was conducted, at which the grievor had effective union representation.  While I may not agree with all of the investigating officer’s rulings with respect to relevance, that does not mean, and I do not conclude, that the investigation was unfair or that it was not impartial.

It was argued that the grievor did not have union representation when his supervisor asked him to his office, and when the company police were called.  The supervisor did attempt, without success, to contact the union representative, and the grievor raised no objection to proceeding.  As I have noted, the grievor was cooperative, agreed to all of the searches, and did not insist on union representation before proceeding, as I am sure he knew he had the right to do.

It was also argued that the evidence relating to the discovery of company tools in the grievor’s vehicle was improperly obtained and therefore cannot be relied on.  In fact, the evidence was discovered in the course of searches, conducted on company property as well as at the grievor’s home, to which the grievor had consented.  The grievor acknowledged that he had taken the tools, and gave his explanation (one which, as will be explained later, I accept).  There was nothing improper in this.  Indeed, there was nothing improper in calling the company police, nor in the conduct of the police officer, as the award in CROA Case No. 3597 makes clear.

The notice of investigation given the grievor was, in my view, proper, and in compliance with the requirements of the collective agreement.  The grievor was accompanied by his Local Chairperson, and agreed that he had been properly notified of the investigation and that he had had sufficient time to review the evidence with which he had been provided, and that he was ready to proceed.

It is my conclusion that none of the preliminary objections is well-founded, and I turn to the consideration of the matter on its merits.

It is important for an understanding of the matter to note that the investigation was held “in connection with the circumstances surrounding your alleged theft and attempted theft of Company property on May 13, 2012".  From the material before me, it seems clear that the company was convinced that the grievor was attempting to steal suspension bearings used in the traction motor and wheel assemblies of certain locomotives.  The bearings come in sets of two, each half weighing approximately thirty-five pounds.  There had been a series of such thefts (some at least of which, it would appear, occurred while the grievor was on vacation), and on the day in question, the supervisor found, at 15:00 hours, that the suspension bearing count was down by one from the count he had taken earlier that day.  He had good reason to believe there had been another theft.  Shortly thereafter, the supervisor went through the area where empty bearing boxes had previously been found.  He discovered such a box, or boxes in the area, and in a training room he found four bearing halves double wrapped in dark green plastic bags.  These would weigh, in total, about one hundred and forty pounds.  He also noticed grease marks on another table which would match the shape of the bearing halves.  He had also seen a back pack hanging on a railing in the hallway outside the training rooms and the washroom.  After continuing his search in the area, the supervisor returned to the training room.  Very shortly thereafter, the grievor entered the room, carrying a backpack.

The supervisor was certainly suspicious of the grievor, and it may be that he concluded that the grievor was responsible for some at least of thefts.  The circumstances were such as to make some degree of suspicion reasonable.  The area was a “restricted” one, although the grievor’s explanations for his ability to enter, and of his reasons for being there have been shown to be quite plausible.  At the time, however, it was understandable that the supervisor requested that the grievor come to his office, and that he asked him to stay a short while, even though it was the end of his shift.  The grievor agreed, and the supervisor called the company police.  All that was perfectly correct.

The police requested, and the grievor granted without, it appears, any hesitation, permission to search his knapsack, locker, vehicle and home, and those searches were carried out by the police.  A number of tools belonging to the company were found in the grievor’s vehicle.  None of the other searches revealed anything untoward.  It should be emphasized that no search revealed anything relating to or suggesting the theft of suspension bearings, and it is significant that no evidence, for example of grease marks or of greasy plastic bags, was found in the search of the grievor’s home.

The suspicion, which I have said was at first reasonable, that the grievor had stolen or was attempting to steal suspension bearings, has proved to be without serious foundation.  It is important to note that neither the theft nor the attempted theft of suspension bearings has been put forward as a ground of discipline, although it may be that the company’s suspicions in that regard continued at least until the time of the investigation.

The grievor was discharged effective May 29, 2012 for unauthorized possession of company property (tools) found following the search of his personal vehicle.  It was perfectly proper for the company to set out the background, referred to above, which led to its discovery of the grievor’s possession of the tools.  There has been no change of grounds for discipline.  “Unauthorized possession of company property” may be an offence related to theft, but it is not necessarily or entirely the same as theft, and the grievor was not discharged on that ground.

There is no doubt, of course, that the grievor, as he promptly agreed, was in unauthorized possession of company property.  That property consisted of a number of tools, of significant total value, although they do not appear to have been new (at least, not the larger, more expensive items).  The grievor was aware of the company policy that employees could not borrow tools without written permission.  He stated that on some occasions he had received verbal permission from supervisors to borrow tools, which he always returned.  He also stated that it was well known that supervisors would give verbal permission for borrowing tools.  It was open to the company to refute this, but no refutation was offered.  At the investigation, where, in a couple of instances, the grievor’s statement was doubted (as where an on-site test was made to verify whether or not he could effectively use his cellular phone from the training room), an attempt at refutation was made.  The grievor’s explanation for his possession of the tools is, I find, a plausible one.

At the investigation the grievor stated that,

The tools are from my tool box.  On Thursday, my final day of work for the week, I borrowed them from my tool box to complete a project at home.  Thursday was my birthday and I bought something and wanted to instal it on the weekend.  Once I was done, I was going to return the tools to my toolbox.

Asked why he did not gain permission to borrow company tools he replied,

It was an error on my part.

Asked by the union representative whether he erred or forgot to bring the tools back when he returned on Sunday, May 13, he replied,

Neither. I knew I wouldn’t need them for working the service track and planned to complete my project at home Sunday evening.

There is no doubt, and the grievor acknowledges, that he was in unauthorized possession of company property.  He was clearly subject to discipline on that account.  The real issue is whether or not there was just cause for discharge.  The grievor had been disciplined in the past, on unrelated matters, but at the time of this discipline his record was clear.  The onus is on the employer to show just cause for the disciplinary measure imposed.  In the instant case, the circumstances do not establish that the grievor was unlikely to return the tools he had borrowed, so that it would be appropriate to treat the unauthorized possession as virtually the same as theft - in which case, discharge would be the appropriate penalty.  In the instant case, all that has been positively established is that the grievor was in violation of company policy with respect to the borrowing of tools.  The grievor’s explanation is a plausible one and has not been refuted.  In these circumstances, it is my conclusion that discharge was a substantially excessive penalty, and that it must be set aside.

Having regard to all of the foregoing, I consider that the imposition of ten demerits would not have gone beyond the range of reasonable disciplinary responses to the situation.  Accordingly, it is my award that the discharge be set aside, and that ten demerits be substituted therefor.  The grievor is to be reinstated in employment forthwith, without loss of seniority or other benefits, and compensated for any net loss of earnings (as he has mitigated his losses by finding other employment).  I remain seised of the matter to deal with any questions relating to the implementation of the foregoing, and to complete the award.

DATED AT OTTAWA, this 8^th day of November, 2012,

,

Arbitrator