AD HOC 440: AGNEW, R.

AWARD

This arbitration concerns the discharge of owner/operator Robert Agnew from his position as a broker truck driver with the Company at the Brampton Intermodal Terminal. The dispute and joint statement of issue, filed at the hearing, reflect the nature of the grievance and read as follows:

DISPUTE:

The termination of the Owner/Operator contract with Mr. R. Agnew on 12 November 1996.

JOINT STATEMENT OF ISSUE:

As a result of a motor vehicle accident on 31 October 1996, an investigation was conducted to determine the cause of the accident. The Company alleges there was a gross violation by the Owner/Operator on the safe operation of a motor vehicle. The Company terminated the contract of Mr. Agnew on 12 November 1996.

The Union contends that the Company is in violation of Article 8.1 A-B-C of the collective agreement governing Owner/Operators and requests immediate reinstatement with payment for all loss of wages and benefits as a result of the termination.

The Company declined the Union’s appeal.

The following provisions of the collective agreement are pertinent to the assessment of discipline and discharge.

ARTICLE 8 – PROGRESSIVE DISCIPLINARY MEASURES

8.1 Pursuant to the terms of their standard contract, owner-operators are required to fulfil the duties and responsibilities connected with the provision of transportation services in a safe, proficient and lawful manner. In circumstances where owner-operators fail to fulfil such duties and responsibilities or provide unsatisfactory service or engage in misconduct, the Company may take the following measures:

(a) First occurrence: a written warning to the owner- operator that the standard contract is liable to suspension or termination.

(b) Second occurrence: a temporary suspension of the standard contract for a period of one to five working days depending on the nature of the second occurrence of failure, unsatisfactory service or misconduct.

(c) Third occurrence: immediate termination of the standard contract.

8.2 Serious acts of misconduct or gross violations of the terms and conditions of the standard contract may warrant by-passing certain steps in the disciplinary process set out in paragraph 8.1.

The material before the Arbitrator discloses that the grievor, Mr. Robert Agnew, commenced working for the Company as an owner/operator, on or about October 30, 1995. It is common ground that he previously was involved in the hauling of containers by truck for CN, for a period of some five years, as a driver employed by a contracting company known as Can-Am. It appears that when the Company decided to convert its operations to the direct use of owner/operators Mr. Agnew became among the first individuals recruited, having purchased a new tractor unit satisfactory to the Company. It is not disputed that the work which Mr. Agnew performed as an owner/operator was similar in nature to the work he performed when he was employed by Can-Am. It consisted largely of transporting container units from the Intermodal facility to delivery destinations. The container to be delivered is loaded onto a chassis unit which is connected to the tractor. The container of the type which was involved in the accident giving rise to this grievance is fastened to the chassis by means of bogie assembly locks, which are pins which fit into holes in the two longitudinal rails of the chassis. The pins, which hold the bogie assembly to the chassis, are spring loaded and controlled by a handle or lever which is operated by the vehicle driver. Four spring loaded pins, which resemble bolts, are so arranged as to fit through holes in the chassis frame rails, which have two sets of eighteen holes. The bogie pins, which are in fact metal plugs of considerable diameter, are therefore the essential link necessary to fasten the bogie which carries the container to the chassis.

The evidence establishes that at approximately 15h00 on October 31, 1996, the grievor was assigned to haul a container loaded on chassis CNPZ140471. Container number CNRU280670 was loaded onto the chassis coupled to the grievor’s tractor and Mr. Agnew then proceeded to leave the Brampton Intermodal Terminal. He proceeded westward on Clark Street, and turned left or southwards onto Airport Road. It is not disputed that after his assembly travelled something less than a quarter mile, prior to the intersection of Airport Road and Intermodal Drive, Mr. Agnew’s unit lost the rear axles and bogie, causing the unit and front portion of the chassis to be dragged along the roadway for a distance of some 119 feet, until the vehicle came to a stop at the intersection.

According to the grievor’s account of the incident, when he hooked up to the chassis in the Intermodal yard he connected the air lines and the light cord, cranked up the dollies, checked the sticker and tires and ensured that the four corner pins of the bogie were properly engaged in the two chassis frame rails, as well as checking the lights. He states that he made a circle check of his unit before leaving the yard, and that, according to his recollection, when he picked up the empty chassis the four locking pins were out, and that they were also exposed after the container was loaded. Mr. Agnew relates that as he proceeded south on Airport Road, approaching the intersection, he applied the brakes of his vehicle, and felt a sensation as though he had been hit from the rear, as he heard a loud noise. Upon looking into his mirrors he saw that three axles had come off the chassis, and that the rear of the trailer was dragging on the ground.

The Company’s evidence confirms that the chassis unit in question was inspected, serviced and certified as sound to operate in February of 1996. A post-accident examination of the unit indicated no mechanical flaw such as metal fatigue or any comparable condition which might have caused the bogie unit to become separated from the chassis. It is common ground that the bogie unit was itself on the ground some distance from the tractor and trailer assembly at the site of the accident. The distance between the three axles which separated themselves from the chassis unit and the tractor and trailer which came to a stop at the intersection was measured as 119 feet.

The Company stresses that the post-accident examination of the unit revealed that the front left bogie locking pin was out of alignment with its receptacle hole in the frame. Significantly, in the Company’s view, the other three locking pins were still in the retracted position. The holes into which they would normally have protruded did not indicate any wear or damage of the kind which might have been expected had the locking pins been properly engaged. In an effort to better understand the cause of the accident, the Company obtained an opinion from Mr. Paul Carson, a service manager of Mond Industries. His report, dated November 7, 1996, contains, in part, the following comments:

It is quite clear that the locking pins are intact and not damaged, as well as the springs & linkage. The pin cages are not torn or damaged. The pin placement holes on the chassis frame rails are not torn. With all the above in mind it should be evident that the locking pins on the sliding bogie could not have been locked properly into place.

Mr. Lance Dickson, manager of Intermodal Terminal Equipment, came to a similar conclusion. He examined both the scene of the accident and the damaged equipment. His report notes that the container, which contained some 55,000 pounds of wood, was projected backwards with sufficient force to break through a two inch diameter steel tube as well as three eighths of an inch thick plate steel welded to the end of the frame rail. In his opinion, the extent of the damage suggests that as the vehicle proceeded southward on Airport Road, in all likelihood the driver applied only the trailer brakes by means of the hand valve or “spike”, causing the bogie to assume a substantially different speed from the rest of the truck and chassis, as a result of which it moved drastically to the rear.

There are two other observations made in Mr. Dickson’s report. Firstly, he notes that if the pins had been placed in the engaged position, but had been stuck between two holes on the chassis frame, the movement of the bogie would have caused the pins to engage in the next set of holes, as they are under spring pressure to extend. With the distance between the holes being some four and one eighth inches, the movement of the bogie should have been minimal, even if the pins had not been properly placed in their holes. Obviously, however, the pins did not engage in that fashion. Secondly, Mr. Dickson observed that there were no scratch marks or lines on the inside of the frame rails. This caused him to conclude that the locking pins were not, in fact, engaged, as otherwise they would have left such marks on the inside surface of the frame rails.

The first matter to be determined is whether the grievor did, as he contends, properly engage the locking pins of the bogie unit into the chassis frame rails, when he picked up the unit in the Intermodal yard on the afternoon of October 31, 1996. On a careful review of the whole of he evidence the Arbitrator is compelled, on the balance of probabilities, to conclude that the Company’s analysis, which indicates that he did not properly engage the locking pins, and failed to conduct an inspection which would have alerted him to that fact, must be preferred. There is, as the reports before me confirm, no indication whatsoever of any mechanical flaw or failure in the chassis unit or in the bogie’s locking mechanism. On the contrary, post-accident inspection of the equipment confirms that the unit was sound in all respects. In particular, the absence of any damage to three of the locking pins, which were found in the disengaged position, and the absence of any marks or scratches on the interior surface of the two chassis frame rails lead compellingly to the conclusion that the locking mechanism was simply not engaged at the time of the accident. There is no other plausible explanation for the movement of the bogie and its separation from the chassis unit. In the circumstances, I am compelled to conclude, on the balance of probabilities, that Mr. Agnew was negligent in failing to properly engage the locking pins of the bogie unit, and that he failed to conduct an adequate inspection of the bogie and chassis assembly prior to his departure from the Company’s yard on the day in question. There is, in my view, no convincing basis upon which the alternative theory of the Union, suggesting that the equipment was faulty or that play or movement in the chassis and bogie might have caused the locking pins to become disengaged, can be accepted.

The issue then becomes the appropriate measure of discipline. By any standard what occurred was an extremely serious accident, of a sort which could, in another circumstance, have caused severe damage and injuries, if not fatalities. As an owner/operator of one year’s employment, the grievor cannot claim longevity of service as a mitigating factor in the assessment of discipline. Even if his prior service under Can-Am is taken into account, he cannot be viewed as equivalent to a long service employee. Additionally, it appears from the material before the Arbitrator that the grievor was not fully candid with the Company at the time of his hire as an owner/operator. It is not disputed that Mr. Agnew was involved in a severe accident, which caused both equipment damage and physical injuries, while working as a driver for another company in February of 1987. On that occasion he was involved in the transportation of a container from the Company’s yard when the container separated from the chassis he was pulling, and fell onto the highway as he was exiting from Highway 7 onto Highway 400, north of Toronto. It appears that there was some question, in that case, as to whether the locking pins were properly fastened in the front of the container being carried. In the result, the container was propelled into the roadway of the four-lane highway, causing damage to other vehicles and personal injuries, which resulted in extensive litigation.

At the time of the grievor’s hire as an owner/operator he was required to complete a form which included the question “Have you ever been involved in an accident?” In answering the question, he made no mention of the serious accident in which he was involved in February of 1987. At the arbitration hearing he sought to explain that omission by stating that his legal counsel advised him that he should not discuss the accident with anyone, as litigation was pending. The Arbitrator has some difficulty accepting that explanation. While it may be that Mr. Agnew would have been prevented from dealing with the details of the accident in a discussion with anyone, it is far from clear to me that he could not, and should not, have answered the Company’s question honestly, by simply indicating that he was involved in an accident in 1987, in respect of which litigation was pending, and the details of which he was not at liberty to discuss.

When the whole of the material before me is considered, I am of the view that the Company was correct in considering that the actions of the grievor in respect of the accident of October 31, 1996, coupled with the information subsequently disclosed with respect to his failure to relate the previous accident to his employer, place this circumstance within the framework of Article 8.2 of the collective agreement. The grievor’s failure to properly secure his load was, in the Arbitrator’s opinion, a serious act of misconduct which was deserving of a correspondingly serious degree of discipline. Given the relatively short period of his prior service, and the questionable way in which he failed to advise the Company of a previous serious accident involving the loss of his load, I am not of the view that the employer’s decision to terminate Mr. Agnew’s employment should be disturbed.

For all of the foregoing reasons, the grievance must be dismissed.

Dated at Toronto this 27th day of February, 1997.

(signed) MICHEL G. PICHER

ARBITRATOR