IN THE MATTER OF AN ARBITRATION

AWARD OF THE ARBITRATOR

The Union grieves the discharge of Car Mechanic Normand Chrétien of St. Luc Yard, Montreal for the alleged theft of Company property. The background facts and issues are reflected in the joint statement of issue filed by the parties at the hearing which, in the English version, reads as follows:

DISPUTE:

Dismissal of Mr. Normand Chrétien for having in his possession Company property.

FACTS:

Mr. Normand Chrétien was dismissed for theft of Company property on February 20, 2007 at Montreal.

JOINT STATEMENT OF ISSUE:

The Union suggested that as a result of Mr. Normand Chrétien's remorse and the fact that he admitted that he was negligent and disorganized, should be reinstated into Company service which should re-establish the trust. The Union requested that Mr. Chrétien be reinstated and be made whole for all wages and benefits since February 20, 2007.

Mr. Chrétien wrote a letter of apology which his request the Company to forgive him.

The Company denied the Union's request.

There is no dispute as to the facts pertinent to this grievance. As a result of a complaint made by an unidentified person, CP Police conducted a search of the home of the grievor to determine whether he might be in possession of Company property. The search, conducted on February 20, 2007, determined that in fact Mr. Chrétien did have at his home a relatively substantial quantity of work related clothing and other equipment. This included an extensive variety of work gloves made variously of leather, insulated material, cotton and rubber. For example, he was found to have twelve pairs of beige leather mittens and some twenty-three pairs of grey cotton gloves. He was also in possession of three pairs of ice crampons, eight pairs safety glasses, seven orange and yellow safety vests, three flashlights and six related batteries, four emergency strobe lights and two packages of plastic tie wraps. It is not disputed that all of the above items are of a type provided by the Company to its employees and used by the grievor during the course of his duties. Only one head of found items, four stainless steel knives with wooden handles, found at the grievor's premises, were not equipment which he would use at work. The unchallenged evidence of Mr. Chrétien is that he found the knives in a rubbish bin when a supply shack was being emptied, and did not in fact ask or obtain permission to remove them.

The position of the Company is relatively straightforward. It maintains that the sheer quantity and volume and the Company issued gloves and other equipment found in the grievor's possession were such as to confirm that he took them improperly, with the intention of making them his own and using them for personal purposes other than for his work. This, its representative maintains, discloses an intention to steal from the employer so as to sever the bond of trust essential to the ongoing employment relationship. On that basis the Company maintains that its decision to terminate Mr. Chrétien for theft on March 16, 2007 was justified and should not be disturbed by the Arbitrator.

The Union's representative takes a substantially different view of the evidence and the conclusions to be drawn from it. He stresses the explanation given by Mr. Chrétien during the course of the Company's disciplinary investigation. It is common ground that although he is based at St. Luc Yard in Montreal as a car mechanic, it was common for Mr. Chrétien to be dispatched directly from his home to other work locations in and around Montreal, such as Lachine and the Port of Montreal. On those occasions it would have been necessary for Mr. Chrétien to have with him, presumably in his own vehicle, those items such as work gloves, safety vest, a flashlight, emergency strobe lights and plastic cable ties. It is not disputed that save for the four wooden handled knives, which were not part of his normal equipment, all of the items which were found in the grievor's home were properly assigned to him by a supervisor or, in the case of the Lachine location, by another employee. As the Union's representative emphasises, these were all items which it was entirely appropriate for the grievor to have in his possession for the normal performance of his duties when assigned away from his home location of St. Luc Yard. There is no suggestion in the evidence that any of the items found in his possession were taken surreptitiously or without the knowledge of the Company, save the four wooden handled knives which the grievor removed from a waste bin, without permission.

In the circumstances described above, the Union maintains that the Company has simply not established that the grievor was in fact guilty of theft, the charge for which he was terminated. Noting that the grievor immediately provided a written apology for having accumulated these items in his home, the Union maintains that what the evidence does disclose is the excessive hoarding of these proper pieces of work clothing and related equipment, in a manner which reflects an error of judgement on the part of the grievor but which does not reflect an intention to steal from his employer.

During the course of his disciplinary investigation Mr. Chrétien admitted that he did, on occasion, make use of some of the items found in his home for his own personal activities. He explained that as he was assigned to work at the Port of Montreal and at the IMS terminal at Lachine, he needed to have all of these objects at home for use at work, admitting that he also did use them for his personal activities on occasion. Indeed, he appears to admit that his excessive hoarding of these items may have been somewhat prompted by his personal use of them.

It does not appear to be the position of the Company, as indeed it would be a doubtful position, that it would be improper for an employee who has legitimate possession of work clothing provided by the Company at his or her residence to make occasional use of that clothing for personal purposes. As argued by the Union's representative, the use of Company work gloves in an employee's car to change a flat tire would not, of itself, evidence the kind of abuse or misuse of Company property which would justify any significant discipline. There is, to be sure, a grey area in respect of the degree to which such Company equipment, properly in the possession of an employee at his or her residence, might be used for personal activities.

On a careful review of the material and submissions, the Arbitrator is compelled to accept the Union's characterization of the grievor's actions as being something less than theft, if theft is defined as the improper or illegitimate or surreptitious removal of the property of the employer for the sole purpose of making that property the employee's own. As indicated above, in the case at hand on each occasion, save with respect to the knives taken from the garbage, all of the materials found in the grievor's home were properly assigned to him by the Company. The fault of the grievor in the case at hand resides more in the excessive hoarding of these items, both for his use at work and for possible use in his personal activities. Virtually all of the items found in his possession were items which would properly be in his vehicle for legitimate work purposes. It is simply the excessive volume of these items, including dozens of pairs of gloves, which gave rise to the Company's suspicions and led the employer to the conclusion that the grievor deserved to be terminated.

Prior awards in the railway industry have had occasion to consider the difference between theft and errors of judgement in the conversion of company supplied clothing and equipment to one's personal use. In CROA 1063 Arbitrator Weatherill concluded that an employee found in possession of some five chairs removed from a caboose, taken with the intention of returning them after a period of loan, did not constitute theft, but rather the misuse of company property. It has also been found that the misappropriation of found items which may have been stolen by others or simply discarded does not, of itself, constitute theft so as to justify the termination of an employee for dishonesty (CROA 1564, 2287). In SHP 444 a carman who was found to be in possession at his home of equipment and tools which had been issued to him for use in his work, and which he had failed to return when he was laid off, did not constitute goods stolen by the employee in question, although there was obviously an unauthorized ongoing possession of them. Similarly, in an award between these same parties concerning the discharge of Carman Alain Albert, an award issued by this Arbitrator on November 22, 1999 (SHP 489), company issued tools of the trade found in the grievor's home could not fairly be characterized as items which had been stolen. In a fact situation remarkably similar to the case at hand, the Arbitrator made the following comment:

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.

The Arbitrator went on to reason and conclude as follows:

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.

(See also SHP 528)

What, then, does the case at hand reveal with respect to the application of the principles reviewed in the foregoing cases? Firstly, the Arbitrator is satisfied that this is not a case of deliberate theft on the part of Mr. Chrétien. While his removal of the four wooden handled knives found in the trash would technically qualify as such, as he obtained no authorization to take them, it is clear that they were items being thrown away by the Company in circumstances which tend to diminish any significant conclusion of malicious intent or theft. As stressed by the Union's representative, all other items found in the grievor's possession were properly provided to him in the normal course of his employment. The fault which he committed, in my view, is the unreasonable hoarding of quantities of those pieces of clothing and equipment beyond what was necessary for his own work. There was, in this circumstance, an error of judgement in the effective abuse of the degree to which he might in fact put these items to his own personal use. While his conduct was plainly improper and excessive, it cannot fairly be characterized as the deliberate and concealed stealing of the Company's property.

There are other mitigating factors which also need to be considered. The grievor is an employee of thirty years' service. During all of that time it appears that he has had demerits assessed against him on only five occasions, none of which involve any allegation of impropriety or dishonesty. In these circumstances the Arbitrator does not find the argument of the Company, to the effect that the grievor can never again be trusted, to be compelling or persuasive. On the contrary, given that the evidence discloses an error of judgement and an unwise propensity to for hoarding, there is no significant basis upon which to conclude that the bond of trust necessary to the employment relationship has in fact been irrevocably broken in this case. That is particularly so given the grievor's lengthy record of good service and his immediate apology and obvious regret for his mistake.

The grievance is therefore allowed, in part. The Arbitrator directs that the grievor be reinstated into his employment forthwith, but without compensation for any wages and benefits lost, and without any loss of seniority. The Arbitrator retains jurisdiction in the event of any dispute between the parties concerning the interpretation or implementation of this award.

Dated at Ottawa, this 4th day of November 2007

(original signed by) MICHEL G. PICHER

ARBITRATOR