SPECIAL REPORT: OOIDA brief details driver harassment by ATA member companies

By Jami Jones, Land Line managing editor | 3/6/2012

Tuesday, March 6, 2012 – A broader picture of driver harassment by motor carriers through electronic on-board recorders was detailed in a recent Owner-Operator Independent Drivers Association court filing with the U.S. District Court for the 7th Circuit.

The most recent filing comes in a case filed by OOIDA in late January seeking a cease-and-desist order on the current policies and practices by the Federal Motor Carrier Safety Administration to encourage the use of electronic on-board recorders.

Nearly five months after the U.S. Court of Appeals for the 7th Circuit vacated the electronic on-board recorder regulation, the agency continued allowing use of the devices. That encouragement and promotion amounts to “blatant disregard” for the court’s Aug. 26, 2011, decision, according to OOIDA’s court filing.

Judge Diane P. Wood wrote the decision for the 7th Circuit that vacated the EOBR regulation because the agency failed to address driver harassment in the rulemaking process. The harassment argument was one of three arguments presented by OOIDA – and the only one needed for the court to toss the regulation.

“Following this court’s decision, respondent FMCSA embarked on a policy of encouraging motor carriers to require drivers to use electronic monitoring devices to record their hours-of-service without taking any steps to ensure that the devices are not used to harass drivers,” OOIDA’s cease and desist motion states.

The agency persisted with this policy even following an exchange of letters between OOIDA and the agency following the court’s ruling.

In response to OOIDA’s motion for a cease and desist, the agency contends that another regulation governing automatic on-board recording devices – or AOBRDs – allows the agency to continue permitting the use of electronic on-board recorders for monitoring hours-of-service compliance.

The American Trucking Associations has now petitioned the court asking to be granted intervenor status in support of FMCSA. The court has not yet responded to ATA’s petition.

However, the ATA proceeded in filing an amicus brief in support of FMCSA.

On March 2, OOIDA petitioned for permission to respond to the ATA and included the OOIDA response brief.

In the response OOIDA filed, the Association outlined a pattern of harassment by ATA member motor carriers revealed in a survey conducted by OOIDA’s Foundation. OOIDA’s response also counters ATA’s assertion that the AOBRD regulation permits the use of electronic on-board recorders.

“ATA’s amicus brief does not address the primary basis for petitioners’ pending motion – the authority of this court to enforce its own orders or mandates,” OOIDA’s response states.

The Association states in its response that ATA is “no stranger to the problems of driver harassment.”

“The OOIDA Foundation conducted a survey to gather data on the experience of drivers with motor carrier harassment. C.R. England, whose chief executive officer currently serves as President of ATA, and other companies whose executives currently serve on ATA’s board of directors, including Swift, J.B. Hunt, Knight, Prime and Conway, were identified prominently by drivers as among several hundred motor carriers who currently use electronic monitoring devices to harass drivers,” OOIDA’s response states.

Results of the survey revealed that the “experience of the drivers under lease to members of ATA’s board of directors was worse than that of all drivers taken as a whole.”

The survey also reported that 68 percent of respondents to the survey who drove for motor carriers of ATA board members were told to drive longer and use all the available “legal” hours and that 29 percent of those drivers were awakened to receive those instructions.

“The survey data collected by the (OOIDA) Foundation shows that, at present, electronic monitoring devices are ineffective for enforcing hours-of service regulations, but very effective tools for harassing drivers,” OOIDA’s reply brief states.

In addition to detailing survey results on driver harassment, OOIDA’s reply brief also challenges the repeated assertion that the automatic on-board recording device regulation also allows for the use of electronic on-board recorders for hours-of-service compliance.

“ATA ignores the critical fact that before the FMCSA established its EOBR rule in 2010, the agency had never approved of the use of Global Positioning System (GPS) technology as an AOBRD system under section 395.15 to replace paper logbooks required under 49 C.F.R. §395.8(a) for any motor carrier except one: Werner Enterprises,” OOIDA’s brief states.

The reply brief details the lengthy process, which included a public comment period, that preceded the agency’s granting of a waiver to Werner that allowed for use of electronic on-board recorders.

The brief states that motor carriers may have been permitted to use electronic devices for hours-of-service compliance under 395.15 (the AOBRD regulation) since 1988. And motor carriers may also have used GPS technology over the years for various purposes, OOIDA’s brief states.

“But until the EOBR rule was published in 2010, only one motor carrier was ever authorized by FMCSA to use GPS technology for hours-of-service compliance.

The fact that only one motor carrier was operating with the use of GPS as part of monitoring hours-of-service compliance puts both ATA and FMCSA in the “awkward position of arguing that the new GPS technology authorized under the 2010 rule can be shoehorned into the 1988 rules designed for older technology in order to permit motor carriers to continue to use their advanced driver-monitoring technology for HOS compliance without any prophylactic rule against driver harassment.”

The brief asks the court to prohibit the agency from permitting the use of electronic on-board recorders supported by GPS by motor carriers until regulations are enacted by FMCSA that prohibit driver harassment.

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