Tennessee Trucking News – Q3 Fall 2019

TENNESSEE

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TTA’s 89 CONVENTION th

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Tennessee Trucking News O F FI C I A L M AGA Z I N E O F T H E T E N N E S S E E T R UC K I N G A S S O C I AT I O N

TABLE OF CONTENTS Q 3 FA L L 2 0 1 9

COVER STORY

TTA’S ANNUAL CONVENTION COVERED THE INDUSTRY’S IMPORTANT ISSUES

P 16

Hours of service, ELDs, tin foil hats, well-deserved awards and the event's first-ever EXPO in Destin, Fla. combined to make TTA's Convention a grand success

BY STEVE BRAWNER

FEATURES

2019 Grand Champion Award, Matt Holmes, Southern Champion Tray & Major Brandon Douglas, THP

11 Rep. Dan Howell Reports on Tennessee IMPROVE Act

A look into how Tennessee’s landmark legislation has progressed since being implemented

P 14

BY DAN CALABRESE

14 Your Credit Card Isn’t the Card They Want

BY TODD GOODWIN

32 TTA’s Road Team

BY CATHERINE STUART

7

DEPARTMENTS

Chairman’s Message

BY CONNIE VAUGHAN

7 TTA’s Board of Directors 9 From the President

BY DAVE HUNERYAGER

34 New TTA Members 34 Calendar of Events 34 Advertiser Resource Index

COVER IMAGE AND IMAGE ON THIS PAGE OF HOLMES AND DOUGLAS BY MANDEE JOHNSON.

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T E N N ES S E E T RU C K I NG N EWS • 5

When Neely B. Coble and his son opened the doors of Neely Coble Company in 1951, there were few truck dealerships to model the business after. However, with great foresight, they knew they could offer the Tennessee trucking industry a valued service.

Neely Coble Company was built on the premise that “the customer comes first!” After adding over 60 years of truck experience and the progressive ideas of today’s technology, there are few dealerships that can offer your business more support!

One man’s dream has become a full service Freightliner, Isuzu & Sprinter dealership offering parts, service and an excellent inventory of new & used trucks. Neely Coble Company also provides a highly experienced sales force and state-of-the-art body shop. We may have grown substantially since 1951, but our objective is still the same…

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trucking TENNESSEE

NEWS

Official Magazine of the Tennessee Trucking Association Tennessee Trucking News is owned by the Tennessee Trucking Association and is published quarterly by Matthews Publishing Group. For additional copies, to order reprints of individual articles or to become a subscriber to Tennessee Trucking News, contact Carol Foster at CFoster@TNTrucking.org Publisher Jennifer Matthews-Drake Jennifer@MatthewsPublishing.com Executive Editor Dave Huneryager DHuneryager@TNTrucking.org Creative Director

Fran Sherman fran@shermanstudios.com

Graphic Designer

Barbara Negron

Ad Production

Doug Benjamin

Photographers

Clay Cook Mandee Johnson Larry Kuzniewski Caleb Shane Lollar John David Pittman Catherine Stuart

Contributing Writers

Steve Brawner Renee Miller Derek Rayment Jennifer Barnett Reed John Schulz Todd Traub

www.TNTrucking.org Tennessee Trucking Association Staff President & CEO Dave Huneryager DHuneryager@TNTrucking.org Membership Coordinator Donna England DEngland@TNTrucking.org Foundation Coordinator Catherine Stuart CStuart@TNTrucking.org

Chairman’s Message Well, Since You Asked, Mr. President…

As I’m writing this the weather forecast is chilling. Literally.

Chilling! Temperatures are expected to drop 30 degrees tonight and for the next few days we will experience winter-like conditions in Tennessee. Which of course means our drivers are already experiencing wintry weather conditions in other parts of the country. Enhanced safety technology is advancing rapidly. However, the best safety defense is a well-trained, alert driver. Getting to the right place, on time, while managing meal and rest breaks, is a challenge. It’s important that drivers know they have our support to take a break when they’re feeling fatigued.

I happened to be in the right place at the right time a few weeks ago when I met and spoke with President Donald J. Trump! When I told him I was Chairman of the Tennessee Truckers, he quickly asked, “How’m I doin’ with the truckers? I love the truckers!”

Well, since you asked, Mr. President… I replied, “When you speak so fondly about the farmers and their impact to the U.S. economy, please remember there is a professional trucker haulin’ the goods for every farmer!”

I don’t know how I got the courage to speak so boldly, except that I am so very proud to be your Chairman. I’m still looking for that Tweet that gives a shout out to our industry.

Who knows? Maybe when that professional driver and beautiful rig delivers the National Christmas Tree, he will remember.

Thanks to all who helped with the first annual “Haulin’ for the Holidays” toy drive. A beautiful reminder of the generosity of the trucking industry and another reason I am still proud to be your Chairman.

Connie Vaughan, TTA Chairman and Government Relations, McKee Foods Corp.

Connie.Vaughan@mckee.com

Administrative Coordinator Carol Foster CFoster@TNTrucking.org An affiliate of the American Trucking Associations

Tennessee Trucking Association (TTA) has served as the voice for Tennessee’s trucking industry since 1930. TTA is a trade association dedicated to the furtherance of the trucking industry’s goals and interests in Tennessee and the United States.

Our membership is a diverse group comprised of motor carriers, both public and private, and companies providing products and services to the industry. TTA serves these companies as a governmental affairs representative before legislative, regulatory and executive branches of government on issues that affect the trucking industry. The organization also provides public relations services, operation services and serves as a forum for industry meetings and membership relations.

For more information, contact TTA at: Tennessee Trucking Association 4531 Trousdale Drive, Nashville, TN 37204 Telephone 615-777-2882 Facsimile 615-777-2024 www.TNTrucking.org

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T E N N ES S E E T RU C K I NG N EWS • 7

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From The President Tennessee Trucking Association Executive Committee CHAIRMAN OF THE BOARD CONNIE VAUGHAN McKee Foods Transportation, LLC EXECUTIVE COMMITTEE

President & CEO DAVE HUNERYAGER Tennessee Trucking Association ATA State Vice President SCOTT GEORGE TCW, Inc. TruckPAC Co-Chairman DAVE MANNING TCW, Inc. TruckPAC Co-Chairman TERRY MINOR Cumberland International Trucks, Inc. TTF President TOMMY HODGES Titan Transfer, Inc. Allied Vice Chairman TROY DICKENS Rush Truck Center, Nashville Immediate Past Chairman WAYLAND THOMPSON FleetFirst, Inc. General Counsel C. DALE ALLEN Adams and Reese LLP

Secretary JIM MOSBY FirstBank Treasurer SCOTT SCHUMPERT Carr, Riggs & Ingram CPSs East Tenn. Vice Chairman JEFF REED Skyline Transportation Middle Tennesse Vice Chairman MIKE MCFARLIN M & W Transportation Co., Inc. Southeast Tennesse Vice Chairman JOE SMITH Kenco Transportation Services West Tennesse Vice Chairman JASON HIGGINBOTHAM Ozark Motor Lines, Inc. Non-Domiciled Vice Chairman NICK D’ANDREA UPS

BOARD OF DIRECTORS DIRECTORS AT LARGE BRAD ALLEN Venture Express BETH FRANKLIN Multi-Task Solutions STEVE FRANKLIN Multi-Task Solutions

JIM BRIGGS Advanced Ergonomics, Inc. CORY LILE Occusure Workers’ Compensation EDDIE WAYLAND King & Ballow BILL TIRRILL Fleetco, Inc.

JERRY HAMPTON Pinnacle Bank

SOUTHEAST TENNESSEE

JOE SHARP Western Express

MAX FULLER U.S. Xpress Enterprises, Inc.

SHEILA SHOUN Shoun Trucking Co.

LISA PATE U.S. Xpress Enterprises, Inc.

WAYLAND THOMPSON FirstFleet, Inc.

TOMMY THAXTON Best One Tire & Service

ROB RHEA FedEx Freight

DAREL DYER Premier Truck Group of Chattanooga

WAYNE WEAVER Rapid Ways Leasing

JEFF TANNER Kenco Management Services

BOB WEST R.E. West, Inc.

WEST TENNESSEE

BILLY WHITE Clarke Power Services

MARK GEORGE Intermodal Cartage Co., Inc.

EAST TENNESSEE

JOHN ROSS Milan Supply Chain Solutions

RUBY MCBRIDE Colonial Freight Systems

TIM GATLIN Empire Express, Inc.

BILL REED, III Skyline Logistics, Inc.

CATHY PHILLIPS COATS H.B. Phillips, Inc.

JEFF ALLEN Great West Casualty Company

JEFF REEVES Reeves Brothers Trucking, Inc.

CRAIG KENDALL The Peterbilt Store,-Knoxville

JEFF EARLE Thompson Power Corp.

MIDDLE TENNESSEE

TOMMY EARL TAG Truck Center

WILLIAM KEITH FirstExpress, Inc.

DICK SWEEBE Summit Truck Group, Memphis

PAT MARSH Big G Express, Inc.

NON-DOMICILED REGIONAL

BRAD RAHRER Portland Express, inc.

MIKE KELLEY YRC Worldwide, Inc.

ALLIE SHARP SCHWALB Sharp Transport, Inc.

HAL DOWLAND HELP, Inc., Provider of PrePass

JOHN WALTON Averitt Express, Inc.

GREG SHIPMAN Vertical Alliance Group

BILL BOB WEST R.E. West, Inc.

SAM FAUCETTE Old Dominion, Inc.

Thank you to everyone that attended the 89th Annual TTA Convention in Destin! We had another spectacular event with record turnout, and the weather was perfect!

We held our first ever EXPO that was very well attended and received great reviews from the exhibitors. There were terrific presentations by Kevin Brown and Dave Osiecki. Eddie Wayland, David Changas and Jim Embrey participated in a great panel of transportation attorneys. THP Captain Travis Plotzer, FMCSA’s Jeff Sanderson and Dave Osiecki comprised our outstanding regulatory panel. We also welcomed House Transportation Chairman Dan Howell and ATA Chairman Barry Pottle. Southern Champion Tray, LP, was named Grand Champion of the TTA Fleet Safety contest.

During the Convention, TTA honored professionals who made accomplishments in the trucking industry with several distinguished awards. Our 2019 Grand Champion Award went to Matt Holmes from Southern Champion Tray, LP. Perry Wilson from McKee Foods Transportation was named the 2019 recipient of the Hugh Galbreath Award for Safety Professional of the Year; Barry Vincoin from FedEx Freight was the recipient of the Maintenance Professional of the Year Award. Craig Kendall from The Pete Store was the recipient of the Allied Professional of the Year Award. Patrick Mendenhall from Cumberland International Trucks was named the inaugural winner of the Young Professional of the Year Award.

The 2019 Clean Diesel Award Winners were Averitt Express, Inc.; Big G Express; Pemberton Truck Lines; TCW, Inc.; Titan Transfer, Inc.; and U.S. Xpress Enterprises, Inc. We introduced the newest group of TTA Professional Road Team Captains. This group of safety-minded professionals continues to carry the banner for our Association and industry, improving our image daily in the way they preach the message of how to safely share the road with commercial vehicles. We are extremely proud of each of them!

Thanks again to all our wonderful sponsors, highlighted this year by our Premier Golf Sponsor; Snider Fleet Solutions! You make us the envy of our industry every year by the way in which you support this event. It would not be the kind of event it is without your unwavering support. We cannot thank you enough for all that you do for us!

On behalf of our Chairman, Connie Vaughan with McKee Foods, the entire Executive Committee and our Board of Directors, thank you for attending our event. If you were unable to attend this year, please consider attending our 90th Convention next year. We look forward to seeing you in Destin in 2020!

Thanks again, Dave Huneryager President, Tennessee Trucking Association dhuneryager@tntrucking.org

Q 3 FA L L 2 0 1 9

T E N N ES S E E T RU C K I NG N EWS • 9

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Rep. Dan Howell Reports on Tennessee IMPROVE Act A look into how Tennessee’s landmark legislation has progressed since being implemented

BY DAN CALABRESE CONTRIBUTING WRITER

When the residents of a state absorb a tax increase of any kind, they’re probably not going to like it. But how they feel about it in the long run will probably be determined by the results they see.

When the gas tax in Tennessee was raised in 2017, as part of the Tennessee IMPROVE Act, the increase was coupled with a reduction of other taxes, including taxes on groceries, manufacturing and earnings from stocks and bonds.

Meanwhile the gas tax, which will ultimately amount to an additional six cents per gallon, have been in a threeyear phase-in. Similarly, the state’s tax on diesel fuel is increasing 10 cents a gallon and compressed and natural gas will increase by 8 cents, also phased in over the same three-year period. Now that we’re toward the end of that phase-in period, an ambitious list of road and bridge improvement projects is underway.

Over the period between 2019 and 2021, the Tennessee Department of

Transportation is undertaking 116 projects that will cost a total of $2.6 billion.

That’s just the start of the state’s efforts to address a $10 billion backlog in road and bridge projects.

State Rep. Dan Howell (R-Cleveland), the chairman of the House Transportation Committee, said traffic volumes and safety were primary considerations in deciding which projects got the green light first.

“Most everything TDOT does is driven from the aspect of safety. That is the foremost concern in my opinion,” Howell said. “In talking to Commissioner (Clay) Bright, I believe that’s the focus he takes.

We need to make the roads safer, look at the accident rate, the fatality rate on a particular bridge – and those tend to be higher on the list of repairs. A second concern is how it will help the economy in Tennessee.”

Howell said maintaining the state’s infrastructure is one of two major factors (the other being education) driving the

state’s economic vitality. But the state had not raised its gas tax since it went to 21 cents per gallon in 1989. And without the tax being indexed to inflation, Howell said the actual buying power of the tax had declined to 11 cents per gallon prior to the passage of the IMPROVE Act in 2017.

That explains the $10 billion backlog.

“We had reached the point where we were several billion dollars behind in maintenance, and basically we were almost at the point where all we could do was fix potholes and things like that,” Howell said.

But the needs are much more challenging than just fixing potholes.

Howell said he has driven all the major roads in the state since becoming chairman, and is amazed at the number of projects that have been necessary to get the state’s infrastructure where it should be.

One particular need that got Howell’s attention is the 75/24 interchange near Chattanooga.

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CONTINUED 

T E N N ES S E E T RU C K I NG N EWS • 1 1

“Chattanooga has been the number one crossroad for semi-trucks in America,” Howell said. “The number of trucks on that I-24 and I-75 at that split is just mindboggling, and we’ve had a number of trucks turn over on the bridge.”

The improvements that will address the problem are now underway, at a likely cost

of $120-to-$140 million.

That’s what people are paying for at the pump, although the Legislature constructed the IMPROVE Act to give most people a net tax cut.

“I’m paying $40 to $50 a year on that six-cent gas tax,” Howell said. “But the average driver in Tennessee, by the time we

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cut the tax on food, cut the excise tax and Hall Income tax, is paying about the same as before. And I will not be surprised to see proposals for additional tax cuts in the upcoming session.”

All told, according to research from the USDOT, a driver who drives between 15,000 and 20,000 miles a year in Tennessee is paying around $290 a year in total state gas taxes, with the new six-cent increase added to the previously existing 21-cent gas tax.

Another element of the IMPROVE Act that should make a difference is a provision through which county and municipal governments receive grants to take care of their own local infrastructure needs.

A full 30 percent of all the money raised under the IMPROVE Act goes to cities and counties.

Additionally, the state added another $42 million for cities and counties out of the state’s operating surplus.

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“Bradley County, in that one-time grant, received an infusion of about $800,000,” Howell said. “Polk County got about $600,000. The counties have not had an increase in their state share funding since 1989, so really they were just to the point where all they could do was fix potholes.

I’m seeing paving all over my district now, so I’m in favor of taking that surplus and doing something similar again.”

Still, it will take time for the state to eliminate that $10 billion backlog in projects. TDOT’s total budget in 2019 is approximately $3.16 billion. Howell believes it will take TDOT ten to eighteen years to catch up on the backlog.

Some of that delay is due to the slow nature of anything government does.

“There’s a road in my district that runs past three schools, and it’s been on TDOT’s list of priorities for a long time,” Howell said. “It’s taken three years to get through all of the environmental studies that are

required by the feds, and then you have to do engineering studies and then the right-of-way acquisitions. Then you do the design and take the bids. It’s taken three years. I laughingly tell people that if we had built the Interstate system today, it would never get done in my lifetime.”

Tennessee is one of only a handful of states in the nation that does not borrow money or float bonds for road construction, so the passage of the higher gas tax was essential to making the more ambitious construction schedule possible.

And while the corresponding cuts in other taxes might be thought to introduce budget pressures elsewhere, Tennessee is actually running a $600 million budget surplus this year.

“Now we’re faced with the thought of how do we give this surplus money back to the people who pay the tax?” Howell said. “I’m strongly in favor of putting it back into infrastructure to relieve the

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tax burden on constituents who live in Tennessee and pay the tax.”

Dave Huneryager, president of the Tennessee Trucking Association, said Howell met with TTA members recently and was very forthcoming about issues that impact the trucking industry.

“We were pleased to have him join us at our convention and interact with our membership,” Huneryager said.

“We appreciated his presentation and his willingness to talk to our group on a number of different issues, the IMPROVE Act in particular.”

All told, the IMPROVE Act lists 962 projects that need attention. So while the 116 now underway represents a strong start, there is still a long way to go getting Tennessee’s roads and bridges back in the condition they should be in.

But for the first time in 30 years, there may actually be the resources available to make it happen. TTN

DALE ALLEN Partner Nashville

TONY SWAFFORD Partner Nashville

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HOLLY McDANIEL Government Affairs Advisor (non-lawyer) Nashville

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Q 3 FA L L 2 0 1 9

T E N N ES S E E T RU C K I NG N EWS • 1 3

YOUR CREDIT CARD ISN’T THE CARD THEY WANT!

BY TODD GOODWIN GUEST WRITER

Jack is a stellar employee who has been with the same trucking company for over 12 years. Jack’s employer always made sure Jack drove the new truck in the fleet because Jack always gets the job done and works extra hours to make sure the customers are taken care of, deliveries are on time and his company looks great! He’s the employee EVERYONE wants. Jack just got fired!

1 4 • T E N N E S S E E T RU C K I N G N E W S

Last Month: You see, last month, Jack went to the license bureau to get his CDL renewed. Considering it his “every 4-year nuisance”, he finally stepped up to the counter to get his picture taken and get back out to his truck. However, when the lady behind the counter looked up his driver’s license, that’s when the trouble began! She told him, “Sir, I’m not sure why you’re here…..you haven’t had a valid license for 6 months.” To his amazement a brief check showed that Jack’s CDL had been suspended for failing to show up for his court dates following his 2 arrests for DUI….in New Mexico! Immediately,

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Jack was done driving, and therefore, done working! The next few weeks were a nightmare of trying to prove that he was the Jack that didn’t get the DUI’s and that, in fact the other Jack wasn’t Jack at all.

Jack’s employer tried for weeks to hold his job open, but the routes needed covered, and in the end, Jack’s truck was handed over to another driver and Jack’s job came to an end.

This may look like fiction but, with the exception of a few changes of the name and details to “protect the innocent”, Jack’s story is the story of a real Ohio employee and his real Ohio employer. In fact, Jack’s

story happens far too often with about 1 in 3 identity thefts involving some form of driver’s license fraud and the “real Jack” being the clueless victim. In addition, employers are added to the victim list when this happens because let’s face it, drivers can’t operate without a clean license.

Identity theft is ALWAYS about the money for the identity thief! Let’s just get that out of the way. They make money by assembling information on real people and then selling that completed identity to someone who doesn’t want to be known as themselves. But you need to realize that when someone gets control of your personal identifiers such as your drivers license, finances may be the least of the damage. In Jack’s case his identity had been used to commit multiple minor crimes (we’ve seen much worse!). But although the crimes started out as “minor”, the damage to Jack’s finances and his reputation and his employer’s bottom line was major! In the end, Jack’s problem required the assistance of attorneys and investigators to get resolved.

SO what is the “good news” in all of this?

You now know where the danger is and that much of the identity theft problem is simply a result of the technology we all carry in our pockets. But just as the thieves are using technology against you, technology is available to protect you and your employees. The key is knowing what to look for in protection.

To put afirewall in front of identity theft just as you would with health insurance or car insurance, make sure you protect what really matters. For instance, you would never purchase car insurance that didn’t actually repair the car or home owners insurance that didn’t rebuild the house.

Likewise, when you shop for identity theft protection, make sure it does 2 things very well: Monitors the things that matter such as your driver’s license (at all state DMV’s), passports, medical ID’s, changes of address (at the post office), county

court houses to make sure you know when activity happens.

Offers “Power of Attorney” Restoration services by experienced investigators who do this for a living.

We call it “Find it and Fix it” protection.

WARNING: Not all identity theft protection is the same, so read the fine print. But if your coverage offers these 2 protections, you’ll be in good hands for the next time an identity thief decides that it’s

“your day” to be used.

If you would like talk about how this might affect your company, feel free to call us here at DataGuard Partners, a fellow Tennessee Trucking Association member and your trusted partner for best in class identity theft protection! TTN

Todd Goodwin is with DataGuard Partners.

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T E N N ES S E E T RU C K I NG N EWS • 1 5

TTA’s Annual Convention Covered the Industry’s Important Issues Hours of service, ELDs, tin foil hats, well-deserved awards and the event’s first-ever EXPO in Destin, Fla. combined to make TTA’s Convention a grand success, tin foil hats, well-deserved awards and the event’s first-ever EXPO

BY STEVE BRAWNER CONTRIBUTING WRITER

EXPO Ribbon Cutting: Dave Huneryager, TTA President, Connie Vaughan, TTA Chariman, McKee Foods Transportation, Jay Johnson, Snider Fleet Solutions, Doyle Bradford, Snider Fleet Solutions

The FMCSA’s proposed hours of service revisions are a “step in the right direction,” but they could give shippers an excuse to make drivers wait longer to load and unload.

Meanwhile, the electronic logging device mandate has led to greater compliance with hours of service rules, though a few drivers think they can beat the system with “tin foil hats.” And motor carriers should set policies and procedures ensuring driver sleeper berth time isn’t compensable.

Those were some of the highlights of two panel discussions at the TTA’s Annual Convention at the Hilton Sandestin Beach Golf Resort & Spa in 1 6 • T E N N E S S E E T RU C K I N G N E W S

Destin, Florida Sept. 15-17.

The panel discussions were led by Donna England, TTA membership coordinator. One consisted of attorneys Eddie Wayland, a senior partner at King and Ballow who has represented trucking companies for more than 35 years; David Changus, a transportation law attorney at Lewis, Thomason; and James Embry, a transportation attorney with Hall Boone Smith.

The other panel had a regulatory focus and included Dave Osiecki with Scopelitis Transportation Consulting, Florida FMCSA Division Administrator Jeff

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Sanderson, and Tennessee Highway Patrol Captain Travis Plotzer.

Among the topics discussed by the attorneys was the FMCSA’s proposed hours of service changes. The agency has proposed five rules changes: modifying the sleeper berth exception to allow an 8-2 or 7-3 split; lengthening the shorthaul exception from 12 to 14 hours and extending the distance limit from 100 to 150 air miles; extending the adverse driving conditions exception by two hours; changing the 30-minute break rule so that it would only take effect after eight hours of driving, and letting drivers take their

break while still on duty but not driving; and allowing an off-duty break of at least 30 minutes but not more than three hours that would pause a driver’s 14-hour driving window.

Wayland said the proposals are a “step in the right direction,” but FMCSA merely “put their toe in the water” with proposals that won’t really solve some of the industry’s major challenges or change shippers’ behaviors. Indeed, some of those behaviors could become worse.

“We all know that one of the big problems is sitting there waiting to get loaded or get unloaded and the detention time that’s involved in that,” he said. “I think what this is going to do is maybe end up giving the shippers an argument: ‘Well, you don’t have to worry about this because you can stop your 14-hour clock.’”

Embry said carriers should pay attention if a driver tends to fatigue earlier than the maximum allowable hours because plaintiff ’s attorneys could seek to make an issue of that situation.

During the regulatory discussion, Osiecki said many fleets have not fully transitioned from automatic onboard recorders to electronic logging devices, despite the requirement to do so by Dec. 16. He recommended fleets create a transition plan with their vendor, and to rely on that vendor. Fleets should start small, learn about the technology and then go fleetwide. They should realize that the technologies are different in that only ELDs have editing capabilities. In response, carriers should have policies governing what drivers can edit.

Fleets also should ensure someone is in charge of reconciling unassigned driving events. Someone should be responsible for noting who moved the truck without logging in. Osiecki said an FMCSA official had said the third most commonly cited ELD violation in audits the last couple of years involved motor carriers failing to review records of unidentified driving and/or annotate the record to explain why it was unassigned.

CONTINUED 

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T E N N ES S E E T RU C K I NG N EWS • 17

“So carriers are not doing it, and they’re being found that they’re not doing it during audits, so it’s something that there’s a focus on by the feds,” he said. “So I’d encourage you to focus on the unassigned driving. And it’s not the easiest thing in the world. There’s lots of examples where it’s tough to figure out, but you at least have to make a dent.”

Sanderson encouraged attendees to obtain the correct report regarding unassigned driving events. On some FMCSA investigations, carriers wrongly have said they have no such events. One mid-sized carrier believed it was in the clear until the investigator said it had the wrong report and helped it find the right one online. It turned out the carrier had 152 pages of unassigned driving events.

“They thought they were doing the right thing,” he said.

Sanderson warned carriers to ensure the packages they are purchasing are actually ELDs. Vendors have sold trucking firms packages with ELD hardware but automatic on-board recording software without informing the firms about the discrepancy. Those devices will not comply with the upcoming requirement.

He encouraged fleets not to wait until the last minute to make the transition, and said many of the violations involve falsifications by drivers.

“We’ve even had a few that think the tinfoil hat on the GPS still works. You’d be shocked,” he said.

Sanderson said that while hours of service issues are still occurring since the ELD mandate went into effect in 2017, drivers are trying not to run out of hours, and carriers are tracking hours better.

“Our hours of service violations are going down,” he said. “That means drivers are getting more rest. I’m not going to get into talking about hours of service right now, but we’re excited to see that ELDs are helping make the roads safer.”

Asked by England what’s happening roadside, the Tennessee Highway Patrol’s

CONTINUED 

1 8 • T E N N E S S E E T RU C K I N G N E W S

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CONTINUED FROM PAGE 18  Plotzer said training – and follow-up training – are crucial. Among the 67,000 inspections during the recent Commercial Vehicle Safety Alliance Roadcheck in June, the most common violations involved braking systems at 28%, followed by tires and wheels at 19.3%.

The attorney panelists also were asked about the recent letter from the Labor Department about the compensability of sleeper berth time. On July 22, the department wrote that drivers’ time spent in sleeper berths is not compensable unless they are working or on call.

Wayland said the department in the 1940s and 1950s ruled that sleeper

berth time was not compensable, but administrations in the 1970s said it would not be compensable only for up to eight hours. More time spent in the sleeper berth would be compensable if the driver were consistently on duty for a 24-hour period. Cases started getting litigated, with plaintiffs saying they were on duty the entire time. A district judge in Massachusetts recently found the time was compensable in one case. While the Labor Department saw things from employers’ perspective, that judge said the law is supposed to be a statute for workers.

“I think the moral to the story is … you can manage these risks, but you have to see what polices and procedures create

facts to support your argument that it’s not compensable,” he said.

Those facts include carrier policies regarding whether drivers must stay in their truck or within sight of their truck, or if they have the right to leave the truck, lock it, and enjoy their free time.

“I think the biggest thing you can do is look at some of these cases to what the judges say and point to on this, and then what can you do to fix your policies and procedures where you don’t fall into that same trap?” Wayland said. “Invariably when I get a trucking client and they have one of these issues, the first two things they tell me is, number one, we’ve always done

CONTINUED 

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T E N N ES S E E T RU C K I NG N EWS • 21

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it that way, and number two, everybody does it that way – neither of which are a defense, and that’s why the plaintiffs’ lawyers are making a killing on this stuff because everybody does basically do it that way and they get this, and it’s just cookie cutter on these complaints.”

Meanwhile, the Federal Motor Carrier Safety Administration is proposing removing nonpreventable crashes from carriers’ Safety Measurement System (SMS) scores while making permanent a demonstration program covering those crashes. It also proposes increasing

the types of crashes qualifying as nonpreventable from eight to 15.

Sanderson said fleets that are the subject of a compliance investigation should tell investigators if alerts in their crash BASIC involved nonpreventable accidents.

“We can’t remove them from the record,” he said. “We can’t remove them from SMS, but if you have, just as an example, if you have eight crashes within the last year, seven of those you believe were nonpreventable, that’s going to make a huge difference in what your score’s going to be in the outcome of the compliance investigation, so please send those in to us.”

The attorneys also discussed how carriers should preserve evidence after an accident. Changus said carriers should preserve everything if they reasonably anticipate litigation, including logs, bills of lading, trip receipts and dash camera video. Otherwise, documents can be hard to find if a lawsuit is filed long after the incident. Attorneys should be involved

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early despite the costs, one of the benefits being that all communication is protected by attorney-client privilege. If a carrier gets an attorney involved from the beginning, he or she can work with an investigator and an accident reconstructionist and gather witness statements.

Embry agreed that it’s important to involve the attorney soon after the accident, saying, “The key is anticipation of litigation.” Carriers can better evaluate their situations with their attorney if they have preserved the evidence. He described a legal principle known as anchoring, where the defendant quotes a number first rather than wait for the plaintiff ’s attorney to make a demand.

Wayland asked how many of the attendees have written record retention policies that are up to date and in good shape. If they’re not, they need to take steps to make sure they are.

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CONTINUED 

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for you. I know people don’t like lawyers,” he said. “I understand that. But (they’re) not real crazy about trucking companies either when you get into these wrecks and stuff. And so if you don’t have something that you should have, or you got rid of something that’s not consistent with your record retention policies, you’re just killing yourself because everybody automatically thinks that whatever it was, they’re going to imagine it to be 10 times worse than it really was. So it’s just not really a game that you ought to play.”

Equal employment opportunity lawsuits were also covered by the attorney panel.

Wayland has been seeing cases regarding deaf drivers, service animals and especially sexual harassment. He said the #MeToo movement has changed the game.

“So I’ve started my own movement,” he said. “It’s called #NotMe or #NotMyCompany.”

Sexual harassment cases often involve driver trainers. He said the Ninth Circuit Court of Appeals has said a situation where two people are in a cab for an extended period “is an incubator for sexual harassment.” Carriers must train female drivers because they need them and because failure to do so is discrimination.

One carrier was sued for sexual harassment in a mixed sex training environment, so it decided it wasn’t going to do that anymore.

Unfortunately, that meant female trainees had to wait longer to get trained, so the company found itself the target of an Equal Employment Opportunity Commission lawsuit.

Wayland said carriers should give female trainees the choice of whether they will be trained by a male or female. Some won’t want a male trainee. He said carriers should train their personnel on the subject.

Carriers tend to post sexual harassment policies for office personnel and in the employee handbook, but they fail to train drivers and include it in their handbook. He also warned that trainees can harass trainers.

Embry advised attendees to think about 2 4 • T E N N E S S E E T RU C K I N G N E W S

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how they can be sued, and to consider the polices, procedures and training they have in place.

“Build your case before you’re sued.

Build your defense before you’re sued,” he said.

Drug use was another topic of conversation. The attorneys were asked if a truck driver can use CBD (cannabidiol) oil, a product derived from marijuana and hemp. Embry advised against it, saying the rules are too much in flux. While all states have approved the use of some type of CBD oil, percentages differ regarding THC (tetrahydrocannabinol), the ingredient in marijuana that produces the high. There are also federal issues to deal with.

Changus warned attendees that while CBD is legal, a driver could test positive for THC. “If I’m driving your truck, I’m not going to use it,” he said. “It’s just too messy. It’s a gray area.”

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CONTINUED 

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The regulatory panel also discussed the DRIVE-Safe Act, a bill in Congress that would create a process for letting drivers ages 18 to 20 drive across state lines. Osiecki said the proposed legislation is unlikely to pass despite having support from members of both parties in both houses of Congress.

That’s because FMCSA is considering a pilot program that would accomplish a similar objective.

“When’s the last time you saw the U.S. Congress do something they didn’t have to do? They only act in crisis,” he said.

He later added, “I think a pilot program actually gives the U.S. Congress a very good reason not to act, which I think is what’s going to happen.”

Osiecki pointed out that insurance rates are based on experience, and the safety record of younger drivers is significantly worse than among the older population.

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fees will continue dropping, just as they did in 2018 and 2019, because a cap exists on the amount of money the fees can collect.

A notice in the Federal Register said the fees will fall by 12.5% in 2020 and 4.5% in 2021, he said.

Another change coming is that FMCSA has issued a notice of proposed rulemaking requiring states to accept out-of-state knowledge tests on commercial driver’s exams.

Osiecki believes the rule will happen.

“This administration’s put a focus on making the CDL rules more friendly to the industry and less friendly to the states,” he said. He later added, “The feds are forcing the states’ hand on this, and it will be finalized soon.” TTN

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T E N N ES S E E T RU C K I NG N EWS • 2 7

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T E N N ES S E E T RU C K I NG N EWS • 2 9

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Q 3 FA L L 2 0 1 9

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T E N N ES S E E T RU C K I NG N EWS • 3 1

Road Team

Tennessee Trucking Association’s

Far L, Road Team Captains Eddie Threlkeld-HUB Group and (Far R) John Anderson-TCW and Jamie Sowder-FedEx Freight at Gaston Community Center

Road Team Captains in red, L to R, Eddie Threlkeld-HUB Group, Vernon Brewer-UPS and Devin Rackley-Averitt Express at Make a Wish presentation at West TN Big Rigs event

Road Team Captains in grey shirts, sitting, Juan Morel-FedEx, standing, David Gooch-Sharp Transport, and John Henderson-TCW with No Zone truck at TNSRO Conference

Road Team Captains Eddie Threlkeld, HUB Group (far L) and Vernon Brewer, UPS Freight (Far R) with children at Bert Ferguson Community Center

Far R, Road Team Captain Eddie Threlkeld-HUB Group, with members of Greater Middle Baptist Church

3 2 • T E N N E S S E E T RU C K I N G N E W S

Q 3 FA L L 2 0 1 9

(Back to camera) Road Team Captain Scott Lambert-FedEx at CarFit Event at Karns Senior Center

Road Team Captains (L to R) Mike Mosier-Old Dominion Freight, Eddie Lindsey-Big G Express, Eddie LeSueur-Skyline Transportation and Paula Harper-FedEx Freight at Boys and Girls Clubs Knoxville

Road Team Captains Devin Rackley-Averitt Express and Cleve McCordSharp Transport talk with teens at THSO Camp

In front of students, ATA Captain Tim Chelette-Big G, TN Road Team Captains Jamie Sowder-FedEx, David Pugh-UPS, Devin Rackley-Averitt at Oakland HS

Road Team Captains (L to R) David Gooch-Sharp Trransport, John Henderson-TCW, Paula Harper-FedEx, Wayne Covely-Walmart and Mike Mosier-Old Dominion at TNSRO Conf

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T E N N ES S E E T RU C K I NG N EWS • 3 3

Calendar of Events NOVEMBER

November 28 TTA Budget Committee Meeting November 28-29 Holiday - TTA Office Closed - Thanksgiving

Tennessee Trucking News

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TA/Petro 10 TAG Truck Center

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Tennessee Trucking News 34 Truckers Against Trafficking

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This edition of Tennessee Trucking News was made possible with the support of these corporate advertisers, all TTA members. They support the trucking industry by enabling Tennessee Trucking Association to provide

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