Archived - Decision 05-046 Canada Labour Code Part II Occupational Health and Safety

Canadian National
New Brunswick
applicant

and

Canadian Auto Workers Local 100
Rail Division & Brotherhood of Locomotive Engineers
Respondent
_____________________
Decision No. 05-046
November 7, 2005

This appeal made pursuant to subsection 146 (1) of the Canada Labour Code, Part II, was decided by Katia Néron, Appeals Officer.

Appearances

For the applicant
L. Michel Huart, General Counsel, Canadian National

For the respondent
Earl Garland, Vice President, Canadian Auto Workers (CAW) Local 100 Rail Division
Benoît Brunet, President, Brotherhood of Locomotive Engineers (BLE)

Health and Safety Officer
Marcel Pelletier
Transport Canada Atlantic Region, Moncton, New Brunswick

[1] This case concerns an appeal made on May 6, 2004, by L. Michel Huart, General Counsel, on behalf of Canadian National, under subsection 146 (1) of the Canada Labour Code, Part II.

[2] The appeal was made as a result of three directions issued on April 29, 2004, by health and safety officer (HSO) Marcel Pelletier following his investigation of a fatality that occurred on April 25, 2004, at Mile 86.3 Springhill S / D, CN Gordon Yard, Sackville, New Brunswick.

[3] According to HSO Pelletier's investigation report, the accident occurred when a train crew left 12 cars on the main track on a descending grade of approximately .7% in order to set off a defective car CNA 406409 (13^th car from the rear of train) on CN loading track D97 at Sackville, New Brunswick. The 12 cars on the main track had no air throughout the airbrake system therefore no airbrakes applied. Two handbrakes as per CN special instruction to Canadian Rail Operating Rules 112 on cars CNA 407290 and NKCR 65831 secured these 12 cars. While making a reverse movement attempting to place the defective car CNA 406409 onto track D097 in Sackville NB the 12 cars that were on the main track moved uncontrolled and struck the trailing car. At the time, the employee was located between two railway cars in order to perform a switching operation. He was crushed between the two cars and was fatality injured.

[4] The said three directions issued by HSO Pelletier were the following:

Direction to CN Rail Under Subsection 145(1)

The said health and safety officer is of the opinion that the following provision of the Canada Labour Code, Part II, is being contravened:

The design, construction and securement of the brake pipe and air hose assembly bracket on certain rail cars, in particular CNA and GTW 405, 406, 407 series, are known to fail causing the air brake hose assembly to become detached from the rail car resulting in an undesired emergency brake application.

Therefore, you are HEREBY DIRECTED, pursuant to paragraph 145(1)(a) of the Canada Labour Code, Part II, to terminate the contravention(s) no later than May 31, 2004.

Direction to CN Rail Under Subsection 145(1)

The said health and safety officer is of the opinion that the following provision of the Canada Labour Code, Part II, is being contravened:

Paragraphs 125(1)(k) of the Canada Labour Code, Part II, and section 10.1 of the On board Train Occupational Safety and Health Regulations.

The said health and safety officer considers that the braking system components on rolling stock constitute a danger to an employee while at work:

The current braking system components have the potential to restrict the proper functioning of the air brake and hand brake assembly on certain series CNA and GTW rail cars. Through the testing and examinations that were performed at CN Gordon Yard, the rods and levers can be out of adjustment resulting in the levers fouling thus preventing the braking components to function as intended.

Therefore, you are HEREBY DIRECTED, pursuant to paragraph 145(1)(a) of the Canada Labour Code, Part II, to terminate the contravention(s) no later than May 31, 2004.

Direction to the Employer Under Paragraph 145(2)(a)

The said health and safety officer considers that employees were not made aware of the safety hazard when handling rail cars in series CNA 407100 to CAN 407339 which may have potential problems with brake levers and rods limiting the efficiency of the braking system.

Therefore, you are HEREBY DIRECTED, pursuant to paragraph 145(2)(a) of the Canada Labour Code, Part II, to take measures to correct the hazard to protect any person from the danger.

[5] On October 21, 2005, L.M. Huart, on behalf of Canadian National, wrote to withdraw the appeal. Copy of correspondence between Transport Canada and L.M. Huart, on behalf of Canadian National, were attached to L.M. Huart's letter. This correspondence confirmed that an action plan has been submitted by Canadian National in order to comply with the three HSO Pelletier's directions and that this action plan has been accepted by Transport Canada.

[6] Based on this, I hereby accept the employer's withdrawal, and confirm that the file is closed.

Summary of Appeals Officer's Decision

Decision No.: 05-046

Applicant: Canadian National
New Brunswick

Respondent: Canadian Auto Workers (CAW) Local 100
Rail Division & Brotherhood of Locomotive Engineers (BLE)

Keywords: Directions, problems with brake levers and rods limiting the efficiency of the braking system on rail cars.

Summary:

Canadian National, the employer, appealed three directions issued by a health and safety officer. The three directions referred to problems with brake levers and rods limiting the efficiency of the braking system on rail cars. The applicant decided to comply with the three directions and, as a result, withdrew his appeal. The appeals officer closed the file.