AD HOC 250

AWARD

This concerns a grievance brought by the Union on behalf of George Fraser (the “grievor”). Fraser was suspended, without pay, on 3 December 1987 for a period of five days.

The issue is whether an incident on 5 November 1987 could have been avoided if the grievor had used reasonable care and attention.

The parties agree that the Board is properly constituted and has jurisdiction to hear and decide this matter.

Fraser commenced his employment with B.C Rail in approximately 1981 while he was still a student. On 7 April 1985 he became a full time employee. From late 1986 to early 1987 Fraser, after he worked his regular day shift, rode with tractor truck drivers in order to learn the requirements for the appropriate licensing. In April 1987 Fraser obtained his Class I driving certificate. He is currently classified as a Warehouseman I and as such is used as a tractor trailer operator as and when required.

The incident which gave rise to the suspension occurred on 5 November 1987 while Fraser was driving a tractor trailer rig. When Fraser started on the afternoon shift that day he took over a tractor which had been driven by Willie Chernoff, an experienced driver. On the change-over Fraser asked Chernoff if there had been any problems with the tractor during the day shift. Chernoff replied in the negative but told Fraser that the 5th wheel had been moved forward to accommodate an oversized load.

Fraser was dispatched to pick up a trailer at the Care warehouse on Annacis Island and return it to B.C. Rail’s North Vancouver yard. It was on Fraser’s return trip to North Vancouver that the trailer disengaged from the tractor. The front of the trailer hit the road causing the support legs on the trailer to buckle and a fuel tank to leak. Police and Fire Departments were called to the scene.

It is B.C. Rail’s position that the accident could have been avoided if Fraser had exercised reasonable care and attention when he hooked the tractor to the trailer at the Care warehouse.

The coupling device on the tractor Fraser was driving is a Holland 3500 series 5th wheel. What follows is a layman’s attempt at describing how that particular 5th wheel operates when being connected to a trailer.

The 5th wheel is mounted on the frame of the tractor behind the cab. With no trailer engaged the 5th wheel is mounted on an angle allowing for the tractor to back up under and automatically connect to a trailer. Prior to engaging, the 5th wheel has an open set of jaws, which close around the trailer king pin, a safety lock, an adjustment pin with a nut and rubber washer and a release handle. When a tractor is properly connected to a trailer the jaws will be forced shut by the trailer king pin. The 5th wheel will be flush with the bottom of the trailer connector. The nut and rubber washer will be tight against the frame of the 5th wheel, the release handle will slide into the mechanism allowing the safety lock to engage.

When a connection is made a driver is required to perform several mechanical and visual checks to ensure a proper hook-up has been achieved. The relevant checks for the purposes of this case include the driver visually checking that the 5th wheel and the trailer mount are flush to each other with no gaps indicating that a foreign object is preventing a proper hook-up. A visual check from the rear of the 5th wheel to ensure that the jaws are completely closed around the trailer king pin, a visual check to ensure that the nut and rubber washer on the adjustment pin are tight against the 5th wheel frame and a visual check to ensure that the release pin and safety lock are engaged.

During the course of the hearing examples of improper connections were given: when the trailer king pin over-shoots the 5th wheel and hooks on to the front of the coupling and when a trailer just sits on top of the 5th wheel without engaging. In both instances a driver would not be able to pull a trailer the six or eight miles around turns and up and down ramps as Fraser did on 5 November. B.C. Rail does not allege that either of the above were the cause of the accident. Evidence does establish that if the 5th wheel was backed under the trailer such that the trailer king pin engaged and the jaws closed but for some reason the nut and rubber washer were not tight against the 5th wheel frame (and consequently the safety lock could not engage) it is possible for a driver to haul the trailer for an indefinite period. It could release immediately, stay connected for the entire trip or disengage during the trip.

When the trailer “dropped” on 5 November it was towed to the North Vancouver yard and Fraser returned his tractor to the shop. Upon Fraser’s return, Frank Brault, a mechanic in the yard, immediately made a visual inspection of the 5th wheel. There did not appear to be any broken or missing parts. After a shop check Brault had Fraser take the tractor to the lumber yard where a test could be conducted on an actual trailer. With Brault beside the tractor Fraser backed under the trailer and engaged the 5th wheel. Brault inspected the connections and found that the jaws were closed but that the nut and rubber washer were between 3/4 to one inch away from the frame of the 5th wheel. Repeated tests were conducted with the connection getting worse each time until Fraser was able to engage the coupling and drive right out from under the trailer. In other words, it got to the point where the 5th wheel would not connect at all.

During the tests in the lumber yard Brault discovered the reason the nut and rubber washer were not returning against the 5th wheel frame. One side of the handle of the release pin was bent upward preventing its full return into the mechanism. That failure in turn prevented the safety lock from engaging and the nut and rubber washer from returning to its proper position. B.C. Rail has subsequently cut two inches off of the release pin handle on all of its tractors with similar coupling devices.

B.C. Rail’s position is that the tractor Fraser was driving was a new tractor acquired in July 1987. There had not been any previous problems reported in regard to that 5th wheel. If the handle on the release pin had been bent prior to or during the day shift on 5 November the driver on that shift would not have been able to drive the 219 kilometres with four or five hook-ups he completed. Regardless of how the release handle became bent, if Fraser had made a proper visual check while at the Care warehouse he would have seen that the nut and rubber washer were not in the proper position and, therefore, that the hook-up was not correct. He would not have started his return trip.

Fraser maintains he did perform all of the required checks. He is certain that the jaws were closed and that the nut and rubber washer were in the correct positions. But, to his credit, Fraser acknowledges he can not be certain that nut and rubber washer were in the identical position they were in the yard during the test with Brault.

On the balance of probabilities I am satisfied that the 5th wheel was not properly connected to the trailer at the Care warehouse. The evidence is simply too strong in that regard. There were no problems with the tractor before the incident and have been none since. The release handle could not have been bent when the trailer “dropped” and it was, in my opinion, the bent handle which prevented the nut and rubber washer from seating properly.

I am not asked to find how the release handle was bent and I decline to do so. Had the problem not been discovered immediately after the incident by Brault, Fraser may well have been given the benefit of any doubt which may have existed. That was not the case. The circumstances of the hook-up and “drop” are identical to the example given in evidence at the hearing: if the nut and rubber washer are not seated against the frame, the trailer could release immediately, stay connected for the entire trip or, as it did on 5 November, disengage during the trip.

With regard to the Union’s submission that a relatively new employee should not be held to the same test as a far more experienced employee in the same classification, I would normally agree. In this case, however, proper care and attention in the hook-up of trailers is a basic requirement for a tractor trailer operator. A driver is not expected to complete the connections as well as another driver, he is expected to complete the task correctly.

I accept that Fraser made all of the mechanical and visual checks required. The 3/4 to one inch gap between a rubber washer and the frame of the 5th wheel was probably just not noticed. That does not, however, alter the fact that the accident could have, in my opinion, been avoided.

Del Baker, Supervisor of the freight shed, determined that a five day suspension was the appropriate response. His decision was based on the seriousness of the accident and the fact that Fraser was issued a written warning on 25 March 1987. The written warning concerned damage to company property. The letter contained a warning that “a similar mishap to company property” could result in a suspension from work.

There is no question B.C. Rail has considered the “dropping” of a trailer as a serious offence. Baker’s evidence is that a probationary employee failed his probation due to a “drop” and another employee was suspended for three days for “dropping” a trailer in the yard.

The period of suspension decided upon by Baker was five days. I subscribe to the belief that arbitrators should refrain from fine tuning discipline providing it falls within a reasonable range even if they are so inclined. In Fraser’s case he had been warned in March 1987 that a suspension may be imposed if he caused further damage to the trailer. At least two other employees were disciplined for similar mistakes: one failed his probation, a response more severe than a suspension, and another was suspended for three days for a “drop” which, in Baker’s opinion, was not as serious. Under the circumstances, I cannot find that a five day suspension was outside of a reasonable range.

Accordingly, the grievance is dismissed.

(signed) KEN ALBERTINI

ARBITRATOR