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DOT Proposes New Truck Fitness Rule

The Federal Motor Carrier Safety Administration proposed a new simplified truck safety fitness standard that would assess whether a fleet is unsafe on a monthly basis.

The new standard would integrate on- road safety data from inspections, along with the results of carrier investigations and crash reports, to find out whether a truck operator continues to meet several criteria.

If the new rule is adopted, carriers would no longer receive ratings of “Satisfactory, “Conditional” or “Unsatisfactory” which have been used since 1982. Instead, FMCSA would issue only one rating if the data require it: “Unfit.”

“This update to our methodology will help the agency focus on carriers with a higher crash risk,” said FMCSA Acting Administrator Scott Darling. “Carriers that we identify as unfit to operate will be removed from our roadways until they improve.”

The proposed rule will permit FMCSA to assess the safety fitness of about 75,000 companies a month, the agency said. By comparison, FMCSA says that at present it can only investigate 15,000 motor carriers annually – with less than half of them actually receiving a safety rating.

A provision in the Fixing America’s Surface Transportation program enacted late last year ordered FMCSA to remove individual carrier ratings from its controversial Compliance, Safety, and Accountability website while the program undergoes study (AA, 12-15-15, P. 1).

Some in the trucking industry are concerned that the new rule depends on data that was found not to be reliable by the Government Accountability Office.  Those truckers will be able to make their views known before the comment deadline of March 21.

For information, including the proposed rule, a webinar and a Safety Fitness Determination Calculator, visit www.fmcsa.dot.gov/sfd

U.S. Mulls Adopting Rear Underride Rule

The National Highway Traffic Safety Administration has proposed mandating heavy-duty truck underride protection that is already in widespread use throughout North America.

Safety advocates have long argued that the previously commonplace “ICC bar” on truck trailers in the United States does little to protect car drivers who with the backs of trucks.

NHTSA wishes to require the Canadian type of rear protection extending almost the full width of the trailer and designed to protect occupants of smaller compact cars who collide with trailers at 35 mph.

However, the NHTSA proposal is not expected to require widespread change in the U.S. because it is  believed that upwards of 93% underride guards that are seen on U.S. trailers today already meet the Canadian criteria.

The major difference is that while the Canadian standard requires the guard meet a 35-mph test procedure, the U.S. will require only a 30-mph test.

The Insurance Institute for Highway Safety was among those who asked NHTSA to improve the underride standard. It says stronger protection continues to be needed, but termed that proposal “a step in the right direction.”

IIHS said its crash tests show that even guards adhering to the Canadian standard can fail and allow catastrophic underride injuries in collisions that involve the outer edges of the guards

NHTSA estimates the annual incremental material and fuel costs would average $13 million to ensure that all future trailers and semitrailers will be built to meet the more rigorous standards.

Shippers Push Port Congestion Projects

A coalition of more than 100 shippers and industry groups urged the Department of Transportation to include their input when developing projects to alleviate port congestion throughout the U.S.

In a letter to Secretary Anthony Foxx the coalition asked him to include a number of key performance indicators in certain areas in the new port performance statistics program created by the Fixing America’s Surface Transportation Act infrastructure program enacted late last year.

“Our interest in performance measures is long- standing, but has been recently spurred by significant congestion and cargo delivery delays at the nation’s largest container ports,” the letter said.

“These delays have a ripple effect throughout the supply chain, impacting all of our collective members, as well as the overall U.S. economy.” This involves marine terminal activities, including container dwell time and port capacity as measured by container throughput.

Also involved are truck gate operations, including truck turn time, and chassis availability. The coalition said it wants to see data on the impact of tickets issued to truckers by terminal operators when cargo is not available for pick up.

In addition, the coalition urged DOT to include cargo owners or shippers among the participants in the working group developing the port performance statistics program.

Led by the National Retail Federation, coalition members include the National Industrial Transportation League, Nasstrac, American Chemistry Council, American Farm Bureau Federation, National Association of Chemical Distributors, National Association of Manufacturers, Retail Industry Leaders Association and the Association of Global Automakers.

Modal groups include American Trucking Associations, Harbor Trucking Association, Intermodal Motor Carrier Conference,
International Association of Movers, New Jersey Motor Truck Association and the National Customs Brokers and Forwarders Association of America.

When the NLRB Investigates You

Today you can be a nonunion employer and still find run afoul of National Labor Relations Board, which in its Obama Era incarnation has vastly expanded its investigatory reach beyond labor organizing and collective bargaining to something as common as the wording of an employee manual.

Under the NLRB’s interpretation of federal laborlaw it can punish employers who interfere in any way when their employees engage in “concerted, protected activity” – meaning anything that involves discussion of wages and working conditions.

For this reason, even nonunion employers need to know how an NLRB investigation could proceed against them, says Attorney Alan Kaplan of the law firm of Masuda Funai Eifert & Mitchell

When a union, an employee or a group of employees file a charge an NLRB regional office investigator will pursue these allegations – and anything else he finds – usually within 30 days.

Keep in mind that the investigator first interviews and takes affidavits from witnesses against the employer before requesting the firm’s cooperation.

The employer may choose not to allow the investigator to take sworn affidavits from its own witnesses and can file a statement with the regional director about why the case should be dismissed.

“The strategy about how the company will cooperate with the investigator is an important, key decision, because everything stated in writing to the investigator becomes evidence against it in a later trial,” Kaplan warns.

The investigator then prepares a Final Investigative Report with the facts and arguments, and recommends that the Regional Director should dismiss the case or issue a complaint.

If dismissed, the union or employee who brought it may appeal to the NLRB General Counsel. If the Regional Director issues a complaint it only means he thinks there is sufficient evidence to proceed, not that the company violated the law, Kaplan notes.

If a complaint is issued, the employer will then be asked if it wants to settle the case.

If it does, the employer usually must sign a settlement agreement with the regional director, provide remedies and post a notice for 60 days.

“When and how to negotiate is another key strategy for the company to consider and implement,” Kaplan says. If there is no settlement, a complaint is issued 45–60 days after the charge was filed.

The complaint sets forth the alleged violations, In response, the employer files an answer to the complaint, admitting or denying the allegations.

Unlike other state and federal cases, there is no pre- trial discovery. About 10 days before the trial the NLRB regional office prosecuting attorney issues a subpoena requesting the attendance of witnesses at the trial and disclosure of company documents.

The employer can fight the subpoena or comply with it. It also can issue a subpoena for the union or complaining employee and their witnesses.

The case is transferred to an administrative law judge to issue a recommended decision and order. Trial usually happens in three to five months and before it occurs there is one more attempt to settle.

Witnesses testify under oath. The NLRB prosecuting attorney represents the government and the union or employee. The union’s lawyer also can be present and ask questions.

The judge issues a written decision, usually within six months and the loser may appeal to the five- member board in Washington. In some cases, the employer and NLRB agree to a settlement after the ALJ issues his opinion,

Most appeals are heard by a panel of three board members. The board normally issues its decision within a year of the appeal., and the employer may appeal that decision to a federal appeals court.

“The board’s process may be long and complicated. Although the regional offices decide cases within 30 days, the ultimate decision by the ALJ and the board’s members in Washington may take years,” Kaplan says.” Therefore, the company needs to analyze its options and create a strategy for fighting charges that are brought by employees or unions.”

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