CANADIAN RAILWAY OFFICE OF ARBITRATION

& DISPUTE RESOLUTION

CASE NO. 3590

Heard in Montreal, Tuesday, 12 December 2006 Concerning

CANADIAN NATIONAL TRANSPORTATION LIMITED

and

NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND

GENERAL WORKERS UNION OF CANADA (CAW-CANADA)

DISPUTE:

Concerning the dismissal of Owner-Operator R. Perry.

JOINT STATEMENT OF ISSUE:

On July 16, 2006, a wheel separated from chassis CNRZ 183016 while being pulled by Owner-Operator Mr. Ron Perry. The Company investigated the incident and terminated the grievor as well as seven other owner-operators for allegedly failing to properly complete the pretrip inspection of the chassis. It is the Company’s position that the owner-operators in question did not complete a thorough pre-trip inspection as required by the standard contract and the Company’s operating instructions. The Company argues that given a previous fatal accident involving a CNTL chassis, and its heightened focus on wheel and axle safety in pre-trip inspections, the failure of an owner-operator to properly complete pre-trip inspections is a major violation of the standard contract and justifies termination. It is the Union’s position that the owner-operator did indeed perform a circle check and did not notice any problem with the chassis. The grievor did discover a loose wheel when going through the gate and followed the proper procedures. Furthermore, even if the Company could show that the owner-operators did not do a proper check, there are a number of mitigating factors involved. First, the chassis was new and there was no reason to believe that it would not contain oil. Second, the chassis had a “green” tag, indicating that it had been inspected by the Company’s garage and passed the safety inspection. Third, if the Company was correct that the axle was without oil, the glass cover would be burnt and appear to be full of oil. Finally, the discipline is extreme in the circumstances. The Union requests that the grievor be reinstated without loss of compensation, benefits and seniority.

FOR THE UNION: FOR THE COMPANY:

(SGD.) D. OLSHEWSKI (SGD.) D. S. FISHER

NATIONAL REPRESENTATIVE DIRECTOR, LABOUR RELATIONS There appeared on behalf of the Company: R. A. Bowden – Manager, Labour Relations, Toronto J. Krawec – Manager, Labour Relations, Toronto M. Peterson – Manager, Field Operations, Toronto C. Parente – Supply Manager Fleet, Montreal And on behalf of the Union: D. Olshewski – National Representative, Winnipeg S. Prudames – Regional Representative, Toronto R. Perry – Grievor

AWARD OF THE ARBITRATOR

The material before the Arbitrator confirms that the wheel of the chassis being

pulled by the tractor of Owner-Operator Ron Perry separated by reason of there being

no oil in the rear axle of the chassis. The Arbitrator accepts the documentary evidence

of the Company which confirms that the chassis, which was new, had never been

properly inspected, and that both the company which supplied the chassis, the

Company’s own inspectors who took delivery of the chassis and all of the seven

employees who used the chassis prior to the grievor failed to notice the absence of oil in

the rear axle. It is common ground that an oil check could have been performed visually

by examining the glass lens on the outside of the hub of each of the rear wheels.

I am satisfied that the grievor was under an obligation to do a circle check of his

unit before moving it, in accordance with Company rules. That would involve verifying

the oil levels in each of the wheel hubs on the chassis. Obviously the grievor failed to

conduct a sufficient investigation so as to identify the lack of any oil in the rear axle. It is

not disputed that the situation so created was extremely hazardous, as separating

wheels have been known to cause highway fatalities in the past.

The issue then becomes the appropriate measure of discipline in the case at

hand. In the Arbitrator’s view there are mitigating factors which need to be taken into

account. Principal among those is the Company’s own obligation. As noted in the

Union’s submission, the standard contract between owner-operators and the Company

places upon the Company the obligation

… at its own expense, to maintain its trailers and chassis in good operating condition during the term of this agreement and whenever assigned and utilized by the Contractor for the purposes hereof … and to have such trailers and chassis in safe and road-worthy operating condition whenever utilized by and assigned to the Contractor hereunder.

The evidence in the case at hand confirms that the Company’s agent, responsible for

first inspecting the chassis in question when it was newly delivered to the Company

failed to identify the lack of oil in the rear axle. To put it in the simplest terms, if the

grievor failed to properly inspect the rear axle, so did the Company. This, therefore,

presents itself as a case of shared responsibility.

In the circumstances, the Arbitrator is satisfied that it is appropriate to return the

grievor to his employment, albeit without compensation. The grievance is therefore

allowed, in part. The Arbitrator directs that the grievor be reinstated into his employment

forthwith, without loss of seniority and without any compensation for wages and benefits

lost.

December 18, 2006 (signed) MICHEL G. PICHER ARBITRATOR