Archived - Decision: 96-007 CANADA LABOUR CODE PART II OCCUPATIONAL SAFETY AND HEALTH

Review under section 146 of the Canada Labour Code, Part II,

of a direction issued by a safety officer

Decision No.: 96-007

Applicant: Potomski Transportation Inc.

P.O. Box 7505

Windsor, Ontario

Represented by: R. J. Potomski, President

Respondent:Rocco Tees

407 Northcliffe Blvd

Toronto, Ontario

M6E 3L3

Mis en cause: Darlene Kennedy

Safety Officer #1703

Human Resources Development Canada

London District Office

Before: Bertrand Southière

Regional Safety Officer

Human Resources Development Canada

A hearing was held in Windsor on April 10, 1996.In attendance were:

- R. J. Potomski, Potomski Transportation Inc.

- Jenny Jacobson, not an employee of Potomski Transportation Inc.; involved in the refusal to work

- Darlene Kennedy, H.R.D.C. - Labour

- Keith MacDonald, H.R.D.C. - Labour

Background

The situation which gave rise to the refusal to work is well detailed

in the Investigation Report and Decision prepared by safety officer

Darlene Kennedy under Ref. No. 195M0280/1253, which report is on

record. Briefly, Rocco Tees, a truck driver for Potomski

Transportation Inc., was assigned to pick up a load at Prestressed

Systems Inc. in Windsor, Ontario, and to take it to Cincinnati, Ohio.

Rocco Tees arrived at Prestressed Systems Inc. at about 2330 hours on

August 6, 1995 to pick up the load of 9 concrete slabs with an

aggregate weight of about 44,000 pounds. At this point, he realized

that there was only one three-inch strap and one winch to secure the

load down on the flatbed trailer. He drove back to the Potomski yard

and eventually, after a number of telephone calls, Jennie Jacobson

provided him with three two-inch straps and the appropriate winches.

Rocco Tees then returned to the Prestressed Systems yard and, after

securing the load with the one three-inch strap and the three two-inch

straps, he drove the truck and trailer back to the Potomski yard as he

had been instructed. At this time, he refused to work on the basis

that:

- the load was not properly secured; previously, the loads were

always secured with three-inch straps; the two-inch straps were not

safe;

- the load was not properly positioned on the trailer;

- the truck was "bouncing" too much.

He was then instructed to take another strap from the office, knot it

as it did not have an 18-inch tail, and use it for a tiedown at the

centre of the load. The load would then be properly secured. Rocco

Tees refused to follow these instructions because he felt it still

would not be safe to work.

At this time, HRDC-Labour was informed of the refusal to work and a

safety officer was dispatched to the work place on this same day. The

safety officer investigated the refusal to work. During the

investigation, the safety officer along with Mr. Potomski, met with

personnel from the Ontario Ministry of Transportation. At these

meetings, discussions were held regarding load securement and load

positioning on the truck. A request was also made to Mr. Potomski to

supply maintenance records for the truck in question, but to no avail.

According to the requirements of the Ontario Ministry of

Transportation, the webbing with which the load was secured was

sufficient for a load of about 18,000 pounds while the actual load was

about 44,000 pounds; also, it is required that there be at least one

tiedown for each three linear metres (10 feet) of lading, which

requirement was not met. Further to these discussions and in view of

the information supplied by the Ontario Ministry of Transportation, the

safety officer concluded that the load was not adequately secured. Due

to a lack of information, she reserved her decision on the two other

complaints, that is, the load positioning and the exaggerated

"bouncing" of the truck. The safety officer issued a direction to the

employer on August 16, 1995 (appendix 1). The employer appealed the

direction to the Regional Safety Officer on August 18, 1995.

Submission by the employer

The submission of the employer hinges on the fact that the employee,

after his initial refusal to work, was told to make the load secure; he

was not told to take the load anywhere, but to tie it down properly,

"to make it right". Consequently, there was no danger to him and the

refusal to work had no object. Also, even if the tie down arrangement

does not meet the Ontario Ministry of Transportation requirements, this

does not mean that it is unsafe.

It was also pointed out that Rocco Tees had been trained as a truck

driver at the National Tractor Trailer School in Toronto from April to

June 1995; as such, he had to know the Highway Traffic Act and as a

trade employee, he should have knowledge of his job. The only training

he received during his employment with Potomski Transportation dealt

with the operation of the winches and ratchets used to tension the

webbing when securing loads. Finally, Mr. Potomski said that, in his

opinion, the concerns of Rocco Tees appeared to stem more from the

width of the webbing rather than the quantity or the load capacity.

Submission by the employee

Rocco Tees, the employee who made the refusal to work, no longer works

for Potomski Transportation Inc. Although he was invited to attend,

he was not present at the hearing. The employees of Potomski

Transportation Inc. are not unionized and as a result, there was no

representation for the employee.

Discussion

There is no doubt in my mind that, according to the Ontario Ministry of

Transportation requirements, the load was not properly secured. I

accept the employer's argument that this does not automatically mean

that it was unsafe. However, there should be documentation showing

that the arrangement in question was indeed safe and this has not been

forthcoming. The suggestion regarding the addition of a three-inch

strap in the centre by "knotting it because it did not have the

required 18 inch tail" would not have made the load safer because

webbing that is knotted cannot be counted as part of a tiedown system

(Load Security in Ontario, page 16). I accept then the safety

officer's conclusion that the load was not properly tied down.

I also accept that a load that is not properly tied down presents a

danger to the driver. Even with a bulkhead at the front of the

trailer, a heavy load that is improperly secured could slide forward

and ram the truck cab if the truck decelerates abruptly, such as during

an emergency braking situation or in an accident.

The employee then recognized a situation of danger, even if he did not

do so for the right reasons. The underlying issue in this case appears

to be that both the employer and the employee were unaware of the

requirements regarding load security laid down by the Ontario Ministry

of Transportation. At the hearing, the employer acknowledged that the

meetings with the personnel of the Ontario Ministry of Transportation,

after the refusal to work, were a learning experience for him. He

mentioned that since then, he makes sure that each of his driver gets a

copy of the booklet entitled "Load Security in Ontario", prepared by

the Ministry of Transportation Compliance Branch.

In conclusion, there were shortcomings in the training of the driver

regarding the safe and proper use of the equipment. There was also a

shortage of equipment to properly tie down the load due to insufficient

awareness of highway safety requirements. I believe this is what the

safety officer attempted to correct.

Decision

For the reasons outlined above, I HEREBY CONFIRM the direction issued

by Safety Officer Darlene Kennedy to Potomski Transportation Inc. on

August 16, 1995.

Decision given on April 23, 1996.

Bertrand Southière

Regional Safety Officer

APPENDIX 1

IN THE MATTER OF THE CANADA LABOUR CODE -

PART II (OCCUPATIONAL SAFETY AND HEALTH)

DIRECTION TO EMPLOYER UNDER SS. 145(2)

The undersigned Safety Officer, did, on the 7th day of August 1995,

attend at the work place operated by Potomski Transportation Inc.,

being an employer subject to the Canada Labour Code, Part II, at 630

Tecumseh Road West, Windsor, Ontario the work place being sometimes

known as the Potomski yard and having conducted an investigation into

the Refusal to Work at the said workplace; consider that the use or

operation of a machine or thing described hereunder or that a condition

exists in the said work place which constitutes a danger to an employee

while at work.

The said Safety Officer considers that the following provision of the

Canada Labour Code, Part II is being contravened due to the employees

being required to transport loads that are not properly secured;

Section 124: "Every employer shall ensure that the safety and health

at work of every person employed by the employer is protected."

Therefore, you are HEREBY DIRECTED, pursuant to Subsection 145.(2)(a)

of the Canada Labour Code Part II, to immediately protect any person

from the danger.

Issued at Windsor, Ontario, this 16th day of August, 1995.

DARLENE KENNEDY

SAFETY OFFICER

#1703

TO: Mr. Bob Potomski, Officer and Director

Potomski Transportation Inc.

P.O. Box 7505

Windsor, Ontario

N9C 4G1

SUMMARY OF REGIONAL SAFETY OFFICER DECISION

Decision No.: 96-007

Applicant: Potomski Transportation Inc.

P.O. Box 7505

Windsor, Ontario

N9C 4G1

KEYWORDS:

Trucking; load securement

PROVISIONS:

Code: 124

SUMMARY:

A truck driver was asked to pick up a load of concrete slabs weighing

44,000 pounds for delivery from Windsor, Ont. to Cincinnati, Ohio.

Only a three-inch strap was available for securing the load. The

driver asked for more straps and was supplied with three additional

two-inch strap. After strapping the load down, he drove his truck from

the production yard to the trucking company yard, a distance of about

10 kilometres, where he made a refusal to work because the load was not

tied down safely. He was then offered an additional three-inch strap

with which to tie down the load, but he felt it still would not be safe

and he maintained his refusal to work. After investigating, the safety

officer issued a direction to the employer. The regional safety

officer confirmed the direction.