CAW/Local 100

Union Submission

on

RAIL SAFETY

to

The Rail Safety Act Review

Advisory Panel

INTRODUCTION:

The Local 100/CAW Union Atlantic Region welcomes the opportunity to provide the Rail Safety Act Review Panel with its comments concerning a review of the Rail Safety Act

The CAW Rail Division includes the former Brotherhood of Railway Carmen of Canada (BRCC), the former Shopcraft Council, (CCRSU) and the former Canadian Brotherhood of Railway, Transport and General Workers. (CBRT&GW)

The duties of the approximate 11, 000 CAW Rail workers include: Repairing and Maintaining Locomotive and Freight/Passenger Equipment; building Locomotive Consists; Crew Calling; Customer Services; operating Locomotives and performing Conductor’s duties on Trains on smaller Railways.

In the view of the CAW, this makes us more than qualified to speak with authority in regard to Rail Safety.

CAW DEALINGS WITH THE TRANSPORT CANADA AND THE RAILWAYS:

Since the inception of the Rail Safety Act in the late 1980s, the railway companies have been applying constantly to the Transport Canada Rail Directorate, in attempting to loosen the Locomotive and Freight/PassengerCar Safety and Air Brake Rules. Throughout this time the former Brotherhood of Railway Carmen of Canada, now part of the CAW Rail Division, has been opposed to the changes, which the railways have been requesting, and, for the most part, have been granted by the Directorate.

It is only recently, since a change in Leadership in the Transport Canada Rail Safety Directorate, that Transport Canada appears to be pushing back on the frequent and constant applications of the Railways and their Association/Lobby Group, the Railway Association of Canada (RAC). This is in contrast to the past when it appeared the railways and / or the RAC were generally granted any application proposing to diminish safety rules.

The CAW has been warning the Transport Canada Rail Directorate over the years that because of the watering down of Rail Safety Rules it was inevitable that the rate of derailments would increase to such an extent that it would begin to damage the environment and eventually would compromise the safety of the public. The CAW has on many occasions, in the past, accused the Leadership of the Rail Safety Directorate of being just a rubber stamp to legitimize the Railway’s efforts to eliminate any safety regulation, which, in the Railway’s perception, impeded their bottom line.

The constant applications by the Railways over the last 15 years, requesting and receiving the diminishment of a great number of Safety wear limits and standards has brought us to where we are today, with the CAW now making a presentation to this Rail Safety Act Review Panel on the very subjects we have been trying to get the Transport Canada’s attention on, since the inception of the Railway Safety Act.

The CAW has had disputes with certain Federal Rail Directorate Officers, who unequivocally supported the Railways in violations of safety inspection rules. ie: Backing Rings.

Railways writing their own Rules:

The idea of allowing the Railways to write their own Safety Rules can be likened to allowing the “Fox to guard the Hen House”. There are obvious inherent negatives in this approach. Any company, given this opportunity, would, more likely than not, take full advantage and write rules not only to satisfy safety concerns but also, and of equal importance to their shareholders, to satisfy their bottom line.

In the CAW’s view, this concept for achieving Rail Safety runs completely contrary to common sense.

Consultation Process:

The whole process of consultation as outlined in Section 19 & 20 of the Rail Safety Act is completely ineffective. Sections 19 & 20 of the Act, requires the railways to consult with the stakeholders and give said stakeholder 60 days to respond to such “consultation”. This is nothing more than a process, which requires the railways to wait the 60 days, attach any documentation from a stakeholder to their application, and file.

The idea that the railways would take into consideration the views of any stakeholders after spending a significant amount of their time honing rules so they meet the bare minimum standards required by the Transport Canada Rail Directorate is ludicrous. It simply isn’t going to happen.

There should be a total revision of the Consultative process under the Act with an emphasis placed on meaningful submission, dialogue and more direct discussion between the stakeholders and the regulator.

There should be direct meetings between the regulator, the rail unions and railways, where open and frank discussions on specific rail safety concerns and issues could be put on the table and addressed in an open and honest forum. In order for this type of meeting to be successful, there would need to be a legislative guarantee of no retribution against employees whose evidence is used to verify and quantify safety concerns and issues. The CAW has challenged the railways, through the RAC, and the Rail Directorate to hold such a meeting. To date, we have not received a response. We continue to await a reply.

Authority of the Transport Canada Rail Directorate:

There appears to be some inconsistency in the interpretation of safety regulations within Regional Transport Canada offices. For example, in the issue of train inspections, one Regional Safety officer ordered walking inspections while another Regional Safety Officer suggested that inspections from a vehicle did not violate regulations. The order for walking inspections was made on June 11, 2002 and altered on June 16, 2002 to permit inspections from a vehicle. As well, we have received conflicting opinions on rail safety matters from the Transport Canada Rail Directorate office and a Regional safety office indicating a lack of uniformity in matters relating to safety.

This, in our opinion, is completely unacceptable. The Rail Directorate should have authority over the Transport Canada Regional Offices with respect to rail safety matters. Stakeholders should be able to expect consistent answers from any Transport Canada Regional Office regardless of what part of the country they are in and they should expect the same answers from the Rail Directorate in Ottawa. The Rail Directorate must have authority over the Transport Canada Regional Offices with respect to rail safety matters and decisions, for appeal purposes.

CAW RECOMMENDATIONS

CAW Recommendations in regard to Regulations and Rules

  • Clarify and specify roles and responsibilities within the act, regulations and rules;
  • Require companies to provide SMS information, submissions. Etc… to Labour organizations, Policy, Master and Local Health & Safety Committees;
  • Establish a SMS assessment guide and protocol similar to Air.
  • Require companies to develop a Safety reporting system which allows for honest reporting on Safety without the fear of discipline or reprisal;
  • Develop regulations, standards and rules that are clear, requiring auditing, investigations and enforcement;
  • Develop a real and practical joint participation process for Government, Railways, Labour Organizations and Stakeholders in the development and implementation of Rules, etc. Not just consultation under section 19 and 20;
  • Identify in law the required “trade” and the minimum standards, training, re-certification, to perform the work in relation to all rail car and locomotive repair; (Such “trade” should be certified, red sealed and authorized under law)
  • Include in law the definition of “qualified” as requiring: training, knowledge and experience;
  • Require mandatory Air brake testing every 1,500 km;
  • Regulate train inspection location by mileage, tonnage and length;
  • Include the AAR and FRA into the minimum freight car and locomotive and airbrake Safety Standards and Safety Rules
  • Transport Canada needs to meet with workers and representatives, not just railway supervisors
  • Transport Canada safety officers should have the power to monetarily fine railways for non-compliance. (Fines which have significance)
  • Transport Canada safety officers should have powers to stop and/or park non-compliant trains.
  • Transport Canada safety officers should have the power to remove from service immediately, suspected and/or proven non-compliant cars and locomotives.
  • Transport Canada needs to strengthen its audit/inspection process. (Notwithstanding, the latest C.N. Safety Audit is the most comprehensive Safety Audit to date).
  • Transport Canada needs to give the Rail Safety Directorate full and sufficient powers to deal with the Railways as a Regulator in real terms and not just a cooperative body of Government
  • Transport Canada Rail Safety Directorate must have complete authority over its respective Regional Offices & Officers.

CAW/Local 100 Atlantic Region examples supporting our position:

They include Locomotive Safety Inspections (LSI), Locomotive Safety Inspection Locations (LSI Locations), Certified Car Inspections Locations (CCI Locations), Consultation process, Appeal process, and the authority of Transport Canada Rail Directorate.

In 2003, CN Rail issued a notice to Transportation workers advising them they would be required to assist Motive Power employees in performing a brake test. The brake test in question is a 16 step – functional brake test, which is part of the Locomotive Safety Inspection, LSI. The Union objected to Transportation workers assisting with a LSI and wrote a letter to the Regional Transport Canada office accusing the Transportation workers of not being qualified to assist with a LSI and furthered requested Transport Canada, (TC), to investigate the complaint.

Transport Canada did investigate the complaint in 2004. During the investigation they observed the Transportation employee in the cab of the locomotive and the Motive Power employee on the ground while they were performing a LSI functional brake test. TC subsequently ruled the investigation met their approval.

The Union immediately contacted the Regional Transport Canada office and advised them that their investigation was flawed in several ways. First, CN Rail had issued a notice (“Atlantic Zone Notice no. 011/2004” Subject: Shop Track brake test-to meet Transport Canada and CN Policy), requiring the Motive Power employee to be situated in the cab of the locomotive. Secondly, the Union advised TC that the Transportation employee was not qualified to perform a LSI and that they could verify this by requesting the list of qualified persons to perform LSI from CN Rail. CN Rail is required to keep a list of qualified persons and make this list available to TC, upon request. The TC officer advised the Union that they were not aware of CN notice no. 011/2004 regarding the Motive Power employee was to be situated in the cab of the locomotive, in addition the TC officer advised the Union that they would not request a list of qualified LSI persons from CN Rail.

The outcome of our discussions with the Regional TC office was that CN Rail issued another notice “Atlantic Zone Notice no. 017/2004” Subject: Shop Track brake test – This notice cancels and supersedes Atlantic Zone Notice No. 011/2004 To meet Transport Canada and CN Policy”. This new notice now placed the motive power employee on the ground. CN Rail’s new notice no. 017/2004 was issued 16 days after their first notice and after TC’s initial investigation. The Regional TC office would not concede there was any discrepancies and concluded a new investigation was not necessary.

The Union sent an appeal to the Transport Canada Directorate in Ottawa but failed to convince them to order another investigation into the Union’s allegations. It became abundantly clear that the TC Directorate in Ottawa has little or no authority over the Regional Transport Canada offices.

Later, in 2004 (and I can only speculate as a result of the LSI incident) CN Rail applied for and was granted an exemption for a LSI Location in Moncton, NB and Halifax, NS. These locations are now considered Locomotive Safety Locations when staffing permits. The Union first found out about the exemption for Moncton in late 2005 and for Halifax in June 2007, well after the exemptions were granted. The Union would have filed objections to these exemptions if they had an opportunity to do so.

As a result of Moncton being designated a LSI location when staffing is available, trains are now allowed to be dispatched without receiving a Locomotive Safety Inspection along with a “B” form that accompanies the locomotive consist and verifies that the testing has been completed. CN Rail now has the authority to send trains (some of which are 10,000 feet long or longer) through cities, towns, villages, through woods, over streams, rivers, around lakes and across one, two, or three Provinces without a Locomotive Safety Inspection, which in this Union Representative’s view is not a safe practice.

Dispatching trains that have not received a LSI is further complicated by the introduction of “distributed power” which was introduced to the Atlantic Region this spring. Distributed power is the placement of another locomotive in the train so that it can assist to push and pull the train and is usually found on longer trains. The placement of the extra locomotive can be ½ mile or even a mile from the other lead locomotive and is supposed to operate (by signal) in conjunction with the lead locomotive.

It is the Union’s position that dispatching a train with distributed power poses an increased risk and every safety opportunity and option should be taken when releasing these trains.

In 2005, CN Rail applied for and was granted an exemption to change a Certified Car Inspection (CCI) location in Wrights Cove, NS from seven days per week to one day per week. The Union had no knowledge of this exemption and no opportunity to represent their opinion before transport Canada.

Local 100/CAW is of the opinion a review of the Railway Safety Act is long overdue and welcomes the opportunity to make suggestions to effect change. We have pointed out areas where changes are necessary and recommend strongly that you accept our suggestions and respect our expertise when writing your report.

Respectfully submitted;

Earl Garland CAW/Local 100 Atlantic Region