By R. Bruce Striegler

New hours of service in effect for U.S. truckers

A U.S. trucking industry lobby group continued to push back against new requirements for truckers to take mandatory rest breaks and observe a 34-hour restart provision just weeks before July 1st, the date the regulations came into effect. The American Transportation Research Institute, (ATRI) part of the American Trucking Associations Federation, challenged the data used by the U.S. Federal Motor Carrier Safety Administration (FMCSA) to justify the changes.

The chairman and CEO of Maverick USA, one of the largest American trucking firms told a Congressional committee in mid-June the industry will lose operating flexibility and between two and four per cent productivity ($500 million to $1.4 billion), and the rules will increase driver stress and frustration. Included in what the organization said were flaws in the U.S. Government’s analysis was the source of the federal data, which came from driver logs of carriers undergoing compliance reviews. According to ATRI, the data skews towards drivers operating at the higher limits of available hours. They also said the assignment of industry costs associated with the new rules was limited to only 15 per cent of the driving population and ignored operational changes and associated costs which they say are likely to be much higher since the rules affect a much larger percentage of drivers. Trucking companies say the new rules will cost them by requiring more trucks to carry the same number of loads. The U.S. Transportation Department says 3,887 people were killed in crashes with big trucks in 2012, and an independent study shows that approximately 13 per cent of big truck crashes involve sleep-deprived drivers.

Announced in December 2011, and now in effect, the new hours of service rules were designed to ensure truck drivers get the rest they need to operate safely when on the road. The hours of service (HOS) final rule reduces by 12 hours the maximum number of hours a truck driver can work within a week. Previously truck drivers could work an up to 82 hours within a seven-day period. The new HOS final rule limits a driver’s work week to 70 hours. In addition, truck drivers cannot drive after working eight hours without first taking a break of at least 30 minutes. Drivers can take the 30-minute break whenever they need rest during the eight-hour window. The final rule retains the current 11-hour daily driving limit. FMCSA will continue to conduct data analysis and research to further examine any risks associated with the 11 hours of driving time.

The rule requires truck drivers who maximize their weekly work hours to take at least two nights’ rest when their 24-hour body clock demands sleep the most, from 1:00 a.m. to 5:00 a.m. This rest requirement is part of the rule’s "34-hour restart" provision that allows drivers to restart the clock on their work week by taking at least 34 consecutive hour’s off-duty. The final rule allows drivers to use the restart provision only once during a seven-day period. Trucking companies allowing drivers to exceed the 11-hour driving limit by three or more hours could be fined $11,000 per offense, and the drivers themselves could face civil penalties of up to $2,750 for each offense.

Hours of service rules are not harmonized between Canada and the U.S and in Canada, this ‘restart’ restriction does not exist and drivers can restart as often as they wish. Canadian trucking associations recommend that drivers who frequently operate between Canada and the U.S. may want to operate under the U.S. cycle restart rules, as they are more restrictive, but ensure that the restart is at least 36 hours to meet Canadian regulations (for the 70-hour/7-day cycle). If drivers restart within the 168-hour period since the last restart, they must remember to designate which restart is the “valid” restart. Drivers do have another option, though, and that is to keep track of the cycle hours and stay within the cycle limits.

Mandatory workplace drug testing rebuffed or on hold in Canadian Courts

Although the practice is more prevalent in the U.S. than in Canada, workplace drug testing always generates controversy, proponents’ arguing it makes a safer workplace and those opposed saying it is an intrusion of privacy and violation of human rights. In the past year, two high-profile cases involving mandatory workplace drug testing were heard by Canadian courts, determining how far employers may go in screening workers for drug use. The companies at the center of legal challenges were Irving Pulp and Paper in New Brunswick and Suncor Energy in Alberta.

In June of this year the Canadian Supreme Court issued a ruling in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd. In a split decision, a majority of the Court decided that a policy requiring employees in the New Brunswick pulp and paper plant to submit to random alcohol testing was not reasonable. There was no dispute that the mill was a potentially dangerous environment, where safety was very important. The mill was a unionized workplace and in 2006, the employer unilaterally introduced a drug and alcohol policy without the agreement of the union. Among other kinds of testing (which were not challenged), the policy provided for unannounced alcohol testing of randomly selected employees. Approximately ten per cent of employees would be selected for random testing each year. After the policy was introduced, the union grieved on behalf of an employee who was tested after being randomly selected. The employee in question did not drink and tested negative, but objected to being required to submit to the test.

Executives at Suncor Energy have been waiting for the decision in the Irving Pulp and Paper case. Over a three year period, supervisors at the energy giant have found marijuana in a maintenance room at an upgrader, a bottle of vodka at an oil sands mine and crack cocaine at another company work site. These discoveries, along with over 90 others, came as a surprise to the company. Suncor has patrolling drug-sniffing dogs, a drug-pre-screening program for new hires and mandatory drug and alcohol tests when an accident happens. However, the discovery of hard drugs apparently used by heavy equipment operators prompted the company to develop a new program of randomized drug and alcohol testing for all employees and contractors in what it has deemed “safety-sensitive” positions. Planned to begin for Suncor employees in October 2012 and contractors in January 2013, the company expected to test 1,445 people per year.

A legal challenge from the Communications, Energy and Paperworkers Union of Canada, Local 707, which represents 3,400 Suncor workers, has put the program in limbo. The union says randomized drug and alcohol testing is a violation of human rights and an intrusion of workers’ privacy. The Alberta Court of Appeal agreed, granting an injunction, effectively putting the program on ice.

The case is now before an arbitrator and the union calls what’s happening a ‘discussion’, but at the same time is challenging each of Suncor’s existing drug-testing polices including the drug-sniffing dogs and post-incident testing. Industry observers believe that if Suncor is successful in implementing random drug testing at its oil sands operations, every other oil and natural gas producer in the country is likely to follow, making this case a precedent by redefining acceptable safety practice’s in Canada’s oil patch.

Are audio – video monitors in locomotive cabs invading an operator’s privacy?

Elsewhere in Canada, while railway companies contemplate installing video and audio recorders in the cabs of their locomotives, the Canadian Auto Workers Union says it’s concerned the recordings could be used to eavesdrop on employees. Both the railway companies and the unions representing their employees agree the recorders would be helpful during Transportation Safety Board accident investigations. But the union doesn’t agree that the railway companies should be allowed to go a step further and use the devices to monitor daily activities of their locomotive engineers, something that is currently prohibited by the Canadian Transportation and Accident Investigation Act. In the aviation and maritime industries, recording devices are wiped clean after trips where no incidents occur.

The Railway Association of Canada says monitoring the video and audio footage would give railway companies a better sense of whether employees are breaking safety rules, for instance by sending text messages while operating trains. Quoted in a Canadian Press story, association president Michael Bourque agrees that the companies could then use the information to prevent accidents by beefing up their training efforts. "These guys have a very important job to do, and it’s critical that they’re focused on what they’re doing," Bourque said. "I think people’s privacy concerns have to play second to public safety." And as to using the monitoring to fire people he commented that the railways are facing a labour shortage, “We’re planning on hiring nearly 5,000 people a year for the next three years as people retire. We’re growing, we need all our people.”

Estimates place the price of recorders at approximately $10,000 per locomotive which could cost the two national carriers a combined $22 to $25 million to implement the new technology. Mr. Bourque suggests railway companies might not be willing to pay that much unless the government gives a green light to use the recorders as part of a larger accident prevention plan saying he thinks it unlikely that a railway company would install the devices if a court order would stop them after they’re installed. “If the number one objective is safety, then you want the technology to prevent accidents, not to merely examine the accident afterwards.” Transport Canada released a report in June advocating the voluntarily installation of the recording devices, but stopped short of stating they must be mandatory.

The issue was raised in the aftermath of a fatal train derailment in Burlington, Ont., in 2012. Transport Canada noted the train wasn’t equipped with recording devices so it would never be known why crew members missed the warning signal to slow down. Via Rail has already begun testing recording devices in its locomotive cabs and said it is working with Teamsters Canada, the union representing its locomotive engineers, to establish a protocol for how the information gathered should be used. Canadian Pacific and Canadian National are also having discussions with their unions regarding the issue. However, the Canadian Auto Workers Union maintains that ongoing compliance monitoring is “overly intrusive” and says that one of the limits in Canadian society is that, typically, workplace conversations aren’t subject to recordings by supervisors.