Tarheel Wheels Issue 1, 2022 ~ Trucking Files Suit

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McMahon Truck Centers Immediate Past Chair
Relation Insurance Services Gary Sensing
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4 TARHEEL WHEELS

TARHEEL WHEELS
NORTH CAROLINA TRUCKING ASSOCIATION
Æ FEATURES
Issue 1, 2022
9 ATRI Update:
TRUCKING FILES SUIT p 22 Driver Shortage by Far Top Choice in ATRI

A detailed examination of the COVID Vaccine Mandate, Critical Issues Survey Results
OSHA, Biden’s Administration and how the Trucking Industry North Carolina respondents had a slightly
fought back.
BY JOSHUA HOWELL & STEPHEN SETLIFF, SETLIFF LAW FIRM different priority list

BY STEVE BRAWNER

15 NCTA Councils Conference & Expo
• General Meeting
• Professionals of the Year Awards
• Driver of the Year + Drivers of the

Month Awards
• Corporate Fleet Safety Awards

BY NCTA STAFF

32 Empowering. Inspirational. Educational.
NCTA's Women in Trucking

Summit was a big success
#NCTAWomenTransmitPower2021
BY NCTA STAFF

DEPARTMENTS 38 NCTA New Member Spotlight 41 By the Numbers - Infrastructure
39 An Inside Look Funding
4 NCTA Annual Sponsors 40 Advertiser Resource Index
40 Calendar of Events 42 Outtakes by Steve Keppler,
4 NCTA Board of Directors Scopelitis Transporation
Consultants
7 President’s Message
by Sam Faucette

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ISSUE 1 2022 5

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TARHEEL WHEELS PRESIDENT'S MESSAGE
THE OFFICIAL MAGAZINE OF THE
NORTH CAROLINA TRUCKING ASSOCIATION Welcome to this edition of Tarheel Wheels. While I know most members, please allow
me a few words to introduce myself as your Interim President of the NCTA.
Tarheel Wheels is owned by the North Carolina Trucking Association
and is published three times a year by Matthews Publishing Group. I am Sam Faucette and I have worked in the trucking industry for 43 years, all of this
in the great state of North Carolina. Last October provided a new opportunity for me
For additional copies, to order reprints of individual articles or and my wife Vicky as I retired from Old Dominion Freight Line after 19 years, most
to become a subscriber to Tarheel Wheels, and for information about recently as the Vice President of Safety & Compliance. Trucking has provided many
opportunities for me over time, just one of which is
advertising please contact Jennifer Matthews-Drake leading the NCTA with a clear vision of our shared
at [email protected]. goals for the future.

Publisher Jennifer Matthews-Drake From my past days spent driving and training entry
[email protected] level drivers, the challenges continue to evolve with
Creative Director recruiting quality people who are willing to enter the
Fran Sherman industry as a driver or support the business model in
Graphic Designer [email protected] other positions. This challenge grows constantly as
Ad Production we face issues with an aging workforce and people
Photographers Barb Negron who do not realize the opportunities offered by our
industry. NCTA members have a commitment to
Douglas J. Benjamin lead by example and get the message to those who
Contributing Writers will enter the profession.
Chris Fain
Daniel Gray Small and family-owned business are at the
David Sinclair core of our industry. Many of the larger carrier
members began as a 1 truck and driver operation.
Steve Brawner There are few other industries that can offer such
Andrew Dunn a track record to success as trucking. This is a
Eric J. Francis message where NCTA member efforts have shown
Johnny Kampis progress by bringing those smaller operations
Renee Miller into the association. We have much to offer these
David Monteith companies. Being a member allows networking
and educational opportunities that cannot be
John Schulz obtained otherwise.
Lacy C. Thacker
The NC Truck Driving Championships and NC Top Tech Competition will resume
www.NCTrucking.com this year. These are events that showcase the expertise of the industry’s drivers and
North Carolina Trucking Association maintenance technicians. We will celebrate these individuals on June 10 & 11. These
professionals will compete for the title of champion. TDC’s make a safer driver
Staff Sam Faucette and TTC’s produce the best technicians. Please urge and support your drivers and
Old Dominion Freight Line technicians to enter and participate.
Interim-President
Petrina Lawrence Regulatory issues and legislative initiatives will remain a focus of your association.
[email protected] Trucking has many champions and we will continue to support those who understand
Vice President Membership our commitment to trucking. We are an important link in the supply chain that provides
Lindsey Harris for the citizens of North Carolina and the U.S. We touch people’s lives as much as any
Director of Operations [email protected] industry and we want our elected representatives to be aware that we are relevant and
dependable, always.
Regulatory Specialist Steve Massey
[email protected] NCTA is recognized as the trucking industry in North Carolina and is your association.
We are member-driven and focused on trucking. Opportunities abound for our industry.
An affiliate of the American Trucking Associations NCTA members should be prepared to work hard and remain focused on a vision for the
future of trucking in North Carolina.
Since 1929, the North Carolina Trucking Association (NCTA)
has represented the interests of the trucking industry. NCTA works I appreciate this opportunity to work with NCTA members as we move forward. Please
make plans to attend the Annual Management Conference, July 24 – 27 in Asheville.
to protect the interests of North Carolina’s trucking industry by
working with state and federal regulatory and enforcement agencies. Thank you,

We are also dedicated to providing excellence in Education, Sam Faucette
Training, and Information. And promoting a safe, dependable and cost-
Sam Faucette
effective motor transportation infrastructure to the betterment of NCTA‘s Interim-President
the trucking industry in North Carolina. [email protected]

For more information, contact NCTA at: ISSUE 1 2022 7
North Carolina Trucking Association
223 South West Street, Suite 900
Raleigh, NC 27603
Telephone: 919-834-0387
Facsimile: 919-834-3926
Website: www.nctrucking.com

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ATRI UPDATE
DRIVER SHORTAGE BY FAR TOP CHOICE
IN ATRI CRITICAL ISSUES SURVEY

BY STEVE BRAWNER
CONTRIBUTING WRITER

1,200

1,000

800

600

400

200

0

Total #1 Votes Total #2 Votes Total #3 Votes

* The bars reflect total points from first, second and third place rankings. Issues that generate more second and third place rankings
may appear to have a higher ranking than preceding issues.

North Carolina respondents agreed with their national personnel, ranking it in the top three and 30.1 percent ranking
counterparts that the driver shortage and driver retention are it first. It received twice as many responses as second place
the biggest issues facing the trucking industry, but concerns driver retention and had four times as many first place
about transportation infrastructure, the diesel technician selections. Five percent of drivers ranked it in their top three.
shortage, and the economy ranked higher in the Tar Heel State
than they did across the country. The responses came before the American Trucking

The driver shortage ranked first by far nationally in the Associations’ chief economist, Bob Costello, raised the
American Transportation Research Institute’s 2021 “Critical estimated current driver shortage from 60,000 to 80,000,
Issues in the Trucking Industry” survey. with that number projected to increase possibly to more than
160,000 by 2028. The report notes that several pressures are
It ranked first nationally for the fifth year in a row, with contributing to the shortage, including freight demand, an
47.4 percent of respondents, including most motor carrier aging driver workforce, COVID challenges, and drivers not

attempting to return after a positive drug test.

ISSUE 1 2022 9

ATRI UPDATE

North Carolina respondents representing motor carrier and This was the 17th year ATRI conducted the survey.
other non-driver personnel responded to the survey. Respondents were asked to rank their top three choices out
of 30 critical issues. More than 2,500 industry stakeholders
The top 10 issues in the state were: responded, with 52.4 percent being motor carrier personnel,
24.1 percent commercial drivers, and 23.5 percent having
1. Driver shortage other types of jobs, including suppliers, driver trainers, and
2. Driver retention law enforcement.
3. Transportation infrastructure/congestion/funding
4. Diesel technician shortage Respondents were asked to rank three strategies for addressing
5. Economy the issues. The most popular strategy for dealing with the
6. Driver distraction driver shortage – selected by 45 percent – was advocating
7. Emissions for the DRIVE-Safe Act pilot program allowing drivers ages
8. CSA 18-20 to cross interstate lines. The $1 trillion Infrastructure
9. Driver compensation Investment and Jobs Act signed by President Biden last year
10. Lawsuit abuse reform includes a pilot program allowing 3,000 18-20-year-olds to
drive across state lines as part of an apprenticeship program.
The top 10 issues nationally were: The second most-selected strategy was developing new
outreach initiatives targeting high school students and young
1. Driver shortage adults. It was selected by 40.5 percent. The third choice,
2. Driver retention selected by 11 percent, was advocating for making it easier for
3. Driver compensation fleets to recruit foreign drivers through the EB-3 permanent
4. Lawsuit abuse reform work authorization permit.
5. Truck parking
6. CSA North Carolina respondents prioritized the same strategies.
7. Driver detention and delay
8. Transportation infrastructure/congestion/funding A closely related issue, driver retention, rose four places from
9. Insurance cost/availability 2020 to number two and was also number two among North
10. Diesel technician shortage

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ATRI UPDATE

Carolina respondents. Seven percent nationally ranked it pay models are related to driver satisfaction and productivity.
first and 21.7 percent ranked it in the top three. The American North Carolina respondents ranked it ninth and prioritized the
Trucking Associations estimates that driver turnover was 92 same strategies.
percent at the end of 2020.
The diesel technician shortage made its first appearance at
More than half of respondents nationally (53.8 percent) number 10 as this year’s only newcomer. It was number four
said the top strategy should be researching and prioritizing in North Carolina. ATRI’s report cites U.S. Bureau of Labor
retention strategies based on driver feedback and driver tenure Statistics data predicting more than 28,000 job openings for
data. The rest believed the top strategy should be evaluating diesel technicians and mechanics each of the next 10 years.
the impact of driver benefits (30.3 percent) and quantifying the
relationship between safety technology and driver satisfaction Rebecca Brewster, ATRI’s president and chief operating officer,
and retention (13.7 percent). North Carolina respondents said the prevalence of workforce issues among ATRI’s top 10 is
reversed the order, ranking the safety technology strategy first related to concerns facing the entire economy.
and retention strategies third.
“I think it really underscores what we’re seeing across the
The third highest ranking issue nationally was another entire – not just the supply chain, quite frankly – across the
workforce-related one, driver compensation, which ranked entire U.S. workforce,” she said. “It’s a workforce challenge
second in 2020. Thirty-three percent of drivers ranked it in right now getting enough people to do the jobs we need them
their top three, as did 15 percent of motor carrier respondents. to do.”

As for strategies in response, 42.3 percent ranked as their Motor carrier personnel and commercial drivers had
first choice analyzing driver compensation in relation to significantly different concerns, as they have in past
competing employment sectors. Second, selected by 30.5 ATRI surveys.
percent, was assessing the effectiveness of retention programs
that offer drivers incentives for safety, fuel efficiency and trip Among motor carriers, the top 10 were:
productivity. Another 24.7 percent chose quantifying how
1. Driver shortage
2. Driver retention

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3. Lawsuit abuse reform ATRI UPDATE
4. CSA
5. Driver compensation North Carolina’s responses differed from the national ones in
6. Insurance cost/availability a number of ways. Transportation infrastructure/congestion/
7. Diesel technician shortage funding was third in North Carolina, eighth nationally, and
8. Transportation infrastructure eighth among motor carriers nationally. The diesel technician
9. Driver distraction shortage was fourth in North Carolina, 10th nationally, and
10. Detention/delay at customer facilities seventh among motor carriers. The economy was fifth in North
Carolina but 13th nationally.
Among drivers, the top 10 were:
The next three highest issues in North Carolina didn’t
1. Driver compensation register among the top 10 nationally overall: driver
2. Truck parking (tie) distraction, emissions and CSA. However, CSA was number
3. Detention/delay at customer facilities four and driver distraction was number nine among national
4. Fuel prices motor carrier respondents.
5. Driver training standards
6. Hours-of-service rules North Carolina’s last two issues did appear in the top 10
7. ELD mandate nationally. Driver compensation was ninth in North Carolina,
8. Driver distraction third nationally, and fifth among motor carriers. Lawsuit abuse
9. Transportation infrastructure reform was 10th in North Carolina, fourth nationally, and third
10. Speed limiters among motor carriers.

ATRI does not include driver responses in its state-by-state Dan Murray, ATRI senior vice president, said the Southeast
breakout because it doesn’t know where drivers receive their states differed from the rest of the country regarding several
commercial licenses and because a driver could spend most issues, including the economy and the technician shortage.
of his or her time far away from that state. He said certain issues are more impacted by what’s happening
regionally and locally.

Transportation infrastructure/congestion/funding was third in

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ISSUE 1 2022 13

ATRI UPDATE

North Carolina but ranked eighth nationally after not ranking respondents, 10th among drivers, and eighth in North Carolina.
in the top 10 last year. After holding positions on the list from
2013 until 2019, it fell off in 2020 when the COVID-19 pandemic Brewster said she was surprised the issue remains in the
removed so many cars from the road. But as restrictions have top 10. It was number one in 2012 and has never since placed
eased, the congestion has returned. Meanwhile, highways worse than eighth nationally. She said carriers’ problems
remain underfunded and under-maintained. with CSA include erroneous data in their scores, crashes that
weren’t the carriers’ fault being counted against them, and
The trucking industry seeks funding that is adequate but also other issues.
fair, as reflected in the national responses regarding proposed
strategies. The top strategy, selected by 37.2 percent, involved “It really is reflective of the industry’s sort of love-hate
preventing truck-only taxes, while 35.2 percent said the relationship with how their safety performance is evaluated. …
industry should continue to advocate for long-term funding It continues to show up in the top 10 list, and it jumps around
by increasing the fuel tax and other user fees while preventing based on sort of how things are going that year,” she said.
funding from being diverted to non-highway projects. The rest,
23.8 percent, said the top strategy should be creating a new The ATRI report also lists three “emerging issues” ranking
federal funding program targeting truck bottlenecks along just outside the top 10. Driver distraction was number 11
major freight corridors. nationally for the third year in a row. It ranked in the top 10
among carriers and drivers but scored lower among other
North Carolina respondents ranked advocating for long-term industry stakeholders. However, it was number six in North
funding first and preventing truck-only taxes second. Carolina. Number 12 was fuel prices, which appeared in the top
10 from 2005, when it was number one, until 2013. Prices fell as
Lawsuit abuse reform was fourth nationally, third among demand fell during the first part of the pandemic but have since
motor carriers, and 10th in North Carolina. Closely related was risen. The economy was number 13. As stated earlier, North
insurance cost/availability, which was ninth nationally but did Carolinians ranked it fifth.
not rank in the top 10 in North Carolina. That issue was in the
top 10 in ATRI’s first survey in 2005 and did not appear again Brewster believes driver distraction eventually will rise into
until last year, when it was fifth. It fell four spots this year. the top 10 nationally because truck drivers and motor carrier
personnel see the results when passenger car drivers aren’t
Two issues related to drivers’ roadway experience ranked in paying attention to the road.
the top 10 nationally: truck parking at number five and driver
detention/delay at customer facilities, which was number “It continues to sort of hover at that number 11, but I suspect in
seven. They ranked so highly because of their high placements the next few years if we don’t do something about it as a nation,
on the driver respondents’ lists. Truck parking, which ranked we’re going to see it jump up into the top 10,” she said.
third last year, tied with driver compensation as the top
concern among drivers – the first tie ever for a top spot – but Leaving the top 10 list was the hours-of-service issue, which
did not rank in the top 10 among motor carrier personnel. was number one from 2013 until 2015 and was number two as
Driver detention/delay at customer facilities was second recently as 2019. Long-awaited FMCSA reforms considered
among drivers and 10th among motor carrier respondents favorable to the trucking industry went into effect that year.
nationally, but it was not in North Carolina’s top 10.
Brewster said she will study write-in answers, which can have
The CSA program was sixth this year nationally after ranking an effect on future surveys. For example, driver compensation
fourth last year. It was fourth among motor carrier industry was included in the survey after many drivers commented
about their pay.

14 TARHEEL WHEELS

THE NCTA 2021 ANNUAL COUNCILS CONFERENCE & EXPO

The NCTA 2021 Annual Councils Conference and Expo In addition to the education, there was also 1 NC Highway Patrol
was conducted at the Hilton Myrtle Beach Resort October Update, 17 exhibitors, 1 new member orientation and an awards
8-10. During this two-day event, 88 attendees experienced banquet that celebrated 58 award winners from 2020 and 2021.
19 speakers, presenting 3 general sessions and 8 breakouts. What an honor to see the award winners be celebrated for their
Among the many topics presented were, Staged Accident success! The 2022 Technology & Maintenance and Safety &
Litigation, Telematics, How Safety and Operations Can Human Resources Advisory Council members were inducted at
Better Work Together and a variety of breakouts on Human the awards banquet. NCTA appreciates the service of the outgoing
Resources, Safety & Compliance, and Technology and incoming Advisory Council members! Thank you to our
& Maintenance. generous sponsors, we are grateful for your support!

ISSUE 1 2022 15

THE NCTA 2021 ANNUAL COUNCILS CONFERENCE & EXPO

16 TARHEEL WHEELS

THE NCTA 2021 ANNUAL COUNCILS CONFERENCE & EXPO

PROFESSIONAL AWARD WINNERS

Safety Professional Human Resources Maintenance
Professional Professional
Michael Mason, CDS
Waccamaw Transport Tricia McCollum Foody, SPHR, Henry L. Wheeler
Safety & HR Director SHRM-SCP Fleet Manager
Vice President, Human Resources Highways and Skyways of NC
Best Logistics Group 

Michael was born and raised in Clinton, Tricia Foody is a Human Resources H. L. Wheeler started as a mechanic for
NC where he resides today with his wife Professional with over 25-years of Saunders Leasing at Roses Stores truck
Amanda. He grew up working on his experience who has been an integral garage in 1971 and became a Service
uncle’s farm and that is where he was member of Best Logistics Groups Manager of the Roses Garage for Old
introduced to trucks.  When he wasn’t leadership team for over 8 years. She Dominion Leasing in 1976 until 1980.
working on the farm, he spent my time serves as both Vice President of Human He worked as Service Manager and Area
on the golf course and traveling playing Resources & Administration and as a Maintenance Director for Ruan Leasing
junior golf.  Michael began his career with member of the Executive Team. for the next 17 years. In 1996 he became
Waccamaw Transport in 2001.  I spent Vice President of Maintenance for Salem
my first year traveling to every seminar Tricia’s is a dynamic leader with Leasing and was able to pick up valuable
I could go too.  He joined the NCTA and commended performance and a proven skills in all phases of Truck Leasing
met some really good safety professionals track record of success. Her areas of business. With Grandkids coming along
and soaked in all the knowledge he expertise include a demonstrated and wanting to be close to them he then
could.  he still draws from that wealth of ability to recruit, develop and retain worked as Director of Maintenance for
knowledge today.  Michael is fortunate to top talent; plan and drive execution Logistic Leasing in Durham NC. Logistic
work with a company that values a safety of business strategies that deliver Leasing was sold in 2010 and I went back
culture in all aspects of our business.  profitable results; create an exceptional to Salem leasing until he retired for health
They work very hard on safety every day customer experience. She has also been reasons in 2014 as VP of Maintenance
and feel like theyrv have one of the best successful at creating, reorganizing, and for Central, Eastern NC, Tennessee and
safety cultures in the fuel industry.  streamlining HR processes and programs Oklahoma.
to drive organizational change, cost
reductions and diversity.

ISSUE 1 2022 17

THE NCTA 2021 ANNUAL COUNCILS CONFERENCE & EXPO

DRIVER OF THE YEAR

Billy Ray Nester

Unifi Manufacturing, Inc.

DRIVERS OF THE MONTH

JANUARY February

Tammie Duncan Donnie Tyndall

Brakebush Transportation Ezzell Trucking, Inc.

March April

Daniel J. Williams (Joey) Donna Haire

Fedex Barnes Transportation Services, Inc.

18 TARHEEL WHEELS

May June

Dante Ibarra Andy Mullis

Ezzell Trucking, Inc. Unifi Manufacturing, Inc.

July August

George Perry Amy Davis

Old Dominion Freight Line, Inc. Cargo Transporters, Inc.

September October

Mark Willcox Ricardo Argueta Soto

Old Dominion Freight Line, Inc. Brakebush Transportation

November December

Don Vue Donald Jenkins

Cargo Transporters, Inc. Barnes Transportation Services, Inc.

ISSUE 1 2022 19

THE NCTA 2021 SAFETY AWARD WINNERS

Fleet Safety Contest Awards WINNERS – LOCAL MILES

GRAND TROPHY AWARD 0-5 million miles: AAA Cooper Transportation
Grand Campion Swing Transport 13,271,641 Miles 3,675,025 Miles

Plaque Awards Certificate Awards

WINNERS –­ ALL MILES RUNNER UPS – ALL MILES
0-5 million miles: TCW, Inc.
0-5 million miles: Waccamaw Transport, Inc.
3,533,604 Miles 4,533,813 Miles

5-15 million miles: Swing Transport 5-15 million miles: Brown Trucking Company
13,271, 641 Miles 10,962,877 Miles

15-99 million miles: WLA, Inc. 15-99 million miles: FedEx Freight, Inc.
13,455,323 Miles 28,149,431 Miles

20 TARHEEL WHEELS

THE NCTA 2021 SAFETY AWARD WINNERS

Industrial Safety Contest Awards
Plaque Awards Winners

1-100 Employees: Unifi Manufacturing, Inc.

Cargo Transporters

101-300 Employees: Eagle Transport Corporation

HL Wheeler

301+ Employees: Barnes Transportation Services, Inc

Tricia Foody

Certificate Awards

COMPANIES WITH ZERO ACCIDENTS
Unifi Manufacturing, Inc.

Barnes Transportation Services, Inc.

Michael Mason

ISSUE 1 2022 21

COVER STORY

TRUCKING

FILES SUIT

A DETAILED EXAMINATION OF THE COVID VACCINE
MANDATE, OSHA, BIDEN’S ADMINISTRATION AND
HOW THE TRUCKING INDUSTRY FOUGHT BACK.

BY JOSHUA HOWELL AND STEPHEN SETLIFF
GUEST WRITERS

22 TARHEEL WHEELS

To the many concerns already facing the trucking
industry—driver shortage and retention, supply chain
disruptions, and rising insurance costs, to name a few—
now add the Biden administration’s COVID-19 nation-
wide vaccine mandate (the “Mandate”) applicable to any
business employing over one hundred persons. While the
uncertainties posed by the Mandate are not unique to
trucking, its potential impact threatens to further burden an
industry already struggling to regain its footing in the post-
pandemic economy. Here, we examine the short history
of the Mandate, the legal challenges to it currently working
their way through U.S. courts, and the potential repercussions
to the trucking industry should the Mandate survive
legal challenge.

The Occupational Safety and Health Act of 1970 Enter COVID-19
In a nationally televised address to the nation on September
In 1970, Congress passed the Occupational Safety and 9, 2021, President Biden announced his plan to impose the
Health Act (“Act”), 29 U.S.C. §§ 651 - 678, pursuant to its Mandate, with OSHA regulations being the vehicle through
power to regulate interstate commerce under Article I of the which the federal government would enact the requirement
Constitution. The Act’s stated goal: “to assure so far as possible and enforce compliance. Then, as now, many legal experts
every working man and woman in the Nation safe and healthful questioned the authority of the federal government to
working conditions and to preserve our human resources.” impose and enforce the Mandate. To be sure, vaccine
Congress created the Occupational Safety and Health mandates have heretofore been commonplace in schools
Administration (“OSHA”) to carry out these policy goals. and other environments. The legality of such mandates,
OSHA is an administrative agency empowered to create federal however, were premised upon the states’ plenary power to
regulations setting workplace safety and health standards enact laws protecting the health and welfare of citizens—a
applicable to any business affecting interstate commerce. power traditionally reserved to the individual states under
The regulations carry the force of law, and their violation can our federalist system of government. The questionable legal
result in significant fines and other penalties. As such, and authority for the Mandate was apparently not lost on the
because OSHA is an executive agency not directly accountable administration, as White House Chief of Staff Ron Klain
to voters, it normally must adhere to certain procedural retweeted MSNBC anchor Stephanie Ruhle’s tweet that the
formalities before enacting new regulations. These procedures OSHA-enforced Mandate was “the ultimate work-around
are prescribed by the Administrative Procedure Act, 5 U.S.C. for the Federal govt to require vaccinations.” Debates began
§§ 550 et seq., and entail a lengthy notice-and-comment swirling immediately.
process whereby OSHA must provide advance notice of new
regulations and receive public comments on those regulations Two months after Biden’s announcement, OSHA issued a
before enacting them. COVID-19 ETS by publishing the text of Mandate in the Federal
Register. See 86 Fed. Reg. 61,402 (Nov. 5, 2021). Like many
The Act created an exception to this normal notice-and- of the other COVID-19 measures passed over the past two
comment process if OSHA “determines (A) that employees years, the Mandate deputizes (willing or not) private business
are exposed to grave danger from exposure to substances to shoulder the burden of implementation. By its terms, the
or agents determined to be toxic or physically harmful or Mandate requires all businesses with 100 or more employees
from new hazards, and (B) that such emergency standard is to “develop, implement, and enforce” COVID-19 vaccination
necessary to protect employees from such danger.” 29 U.S.C.
§ 655(c). These emergency temporary standards (“ETS”)
bypass public comment and take effect immediately upon their
publication in the Federal Register—the federal government’s
official journal containing all agency rules, proposed rules,
and public notices. Since its creation, OSHA has issued ETSs
only ten times, with each ETS setting standards for workplace
exposure to toxic substances such as asbestos, benzene, and
agricultural pesticides.

ISSUE 1 2022 23

COVER STORY by the employer) and compulsory masking in most work
environments. The same day OSHA issued the ETS, a mix of
policies. For those employees who remain unvaccinated, state attorney generals, trade associations, businesses, and
the Mandate would require weekly testing (to be provided private citizens filed lawsuits in each of the twelve federal
judicial circuits. Trucking industry trade groups, including the
American Trucking Associations (ATA), the Louisiana Motor
Truck Association, the Mississippi Trucking Association, and
the Texas Trucking Association, numbered among the business
interests filing legal challenges to the Mandate.

While federal litigants are ordinarily required to file lawsuits
in the district court of a given jurisdiction, the statute
authorizing ETSs, 29 U.S.C. § 655(f), allows challengers to
bypass the district courts and directly petition the appellate
courts for review. In addition to challenging the constitutional
and statutory basis of the Mandate, many petitioners asked
the circuit courts of appeal to stay—i.e., temporarily place
on hold—the implementation of the Mandate pending any
ultimate decision on the merits.

“A one-size-fits all sledgehammer”

The Fifth Circuit Court of Appeals—based in New Orleans
and considered by many to be the most conservative-leaning
circuit in the country—was the first court to pass on the legal
merits of the Mandate. In BST Holdings, L.L.C. v. OSHA,

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No. 21-60845, 2021 U.S. App. LEXIS 33698 (5th Cir. Nov. “IN THE COURT’S VIEW, THE MANDATE
12, 2021), the Fifth Circuit addressed a diverse group of WAS JUST THE OPPOSITE: A “ONE-SIZE-
petitioners’ request for a temporary stay of the mandate FITS-ALL SLEDGEHAMMER THAT MAKES
pending judicial review of the merits. The Court employed a HARDLY ANY ATTEMPT TO ACCOUNT FOR
four-part test to determine whether a stay should be granted:
(1) whether the stay applicant has made a strong showing that DIFFERENCES IN WORKPLACES.”
he is likely to succeed on the merits; (2) whether the applicant
will be irreparably injured absent a stay; (3) whether issuance circumstances in the most delicate way possible. In the Court’s
of the stay will substantially injure the other parties interested view, the Mandate was just the opposite: a “one-size-fits-all
in the proceeding; and (4) where the public interest lies.” Id. *7. sledgehammer that makes hardly any attempt to account for
In a blistering opinion authored by Judge Kurt D. Engelhardt, differences in workplaces.” The text of the ETS statute also
the Court found that each of these factors warranted a stay of suggested to the Court that COVID-19—a highly infectious,
the Mandate. airborne respiratory virus affecting all of society—was not
the type of workplace substance or agent within the purview
A majority of the Fifth Circuit’s opinion was devoted to the of OSHA’s regulatory sphere. Further, OSHA could not
first factor of the stay analysis—the likelihood of success on demonstrate to the Court that all employees potentially
the merits. As an initial matter, the Court observed that the impacted by the Mandate were, in fact, exposed to COVID-19
Mandate was the rare type of law that is both overinclusive— within the meaning of the statute.
by applying to any employer regardless of the risk COVID-19
posed to a given industry—and underinclusive by exempting, The “grave danger” requirement for ETSs was also lacking
without explanation, employers with less than 99 employees. in the opinion of the Court, as most Americans had either
The Court also found the factors warranting the ETS to be received at least one dose of a vaccine or were not within the
illusory. Rejecting OSHA’s “emergency” rationale, the Court age groups susceptible to the dangers posed by the virus.
observed that ETS provisions were intended to operate as
scalpels: precise tools designed to address highly unusual

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COVER STORY

President Biden’s prior statements against imposition of a any notion that COVID-19 presented the type of emergency
nation-wide mandate held significance to the Court and belied justifying resort to the ETS provisions. OSHA’s two-month
delay in publishing the ETS following the President’s
September 9 announcement also undermined the idea that
COVID-19 was truly an emergency justifying resort to the ETS
process. As to the necessity element under 29 U.S.C. § 655(c),
the Court again emphasized the simultaneously overinclusive
and underinclusive characteristics of the Mandate, and the
potentially counterproductive results that the Mandate’s rigid
requirements would have on a given industry’s ability tailor
safety requirements to the unique risks posed by a particular
work environment.

The Court also found the stay justified on grounds that
the petitioners—many of whom were private employers—
would be irreparably harmed in its absence. The Mandate’s
estimated $3 billion in compliance costs; the diversion of
resources necessitated by its dictates; the financial penalties
for violations; and the inevitable employee attrition all
weighed in favor of a stay. Should the Mandate be later
stricken on the merits, these costs would be nonrefundable
to employers subjected to its provisions. Employees would
also be harmed—faced with the “choice between their job(s)
[or] their jab(s).” By contrast, in the view of the Court, OSHA

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COVER STORY

would not be harmed by the stay, as any harm suffered by “IN THE COURT’S VIEW, CONGRESS,
BY CREATING OSHA, COULD NOT
the agency due to the delayed implementation would be, at HAVE “INTENDED TO AUTHORIZE A
most, abstract. The Court concluded that the “economic
uncertainty” and “workplace strife” posed by the specter of WORKPLACE SAFETY ADMINISTRATION
the Mandate also indicated that a stay was appropriate from a IN THE DEEP RECESSES OF THE FEDERAL
public interest standpoint.
BUREAUCRACY TO MAKE SWEEPING
It is important to note that the Fifth Circuit did not directly PRONOUNCEMENTS ON MATTERS
address the constitutional concerns presented by the Mandate. OF PUBLIC HEALTH AFFECTING
That will be for another day. The opinion did, however, shed EVERY MEMBER OF SOCIETY IN THE
light on the Mandate’s apparent constitutional infirmities. In PROFOUNDEST OF WAYS.”
the Court’s view, Congress, by creating OSHA, could not have
“intended to authorize a workplace safety administration in Stay tuned. . . .
the deep recesses of the federal bureaucracy to make sweeping
pronouncements on matters of public health affecting every Because of the nation-wide, multi-district character of the
member of society in the profoundest of ways.” Nor could Mandate litigation, the Multicircuit Petition Statute, 28
the Commerce Clause be plausibly interpreted to encompass U.S.C. 2112(a), requires a judicial panel to choose by “random
the power contemplated by the Mandate. After all, a person’s selection” one appellate court to hear all of the cases. On
choice to remain unvaccinated is a non-economic activity. November 16, 2021, the panel selected the U.S. Sixth Circuit
The Court also found the Mandate problematic from a Court of Appeals. The Sixth Circuit will now hear all pending
separation-of-powers standpoint, as Congress cannot delegate cases regarding the Mandate. In one of its first orders after the
such sweeping legislative power to agencies absent a clearly cases were consolidated to its docket, the Sixth Circuit denied
expressed intent to do so. These constitutional issues will OSHA’s motion to dissolve the stay issued by the Fifth Circuit
likely make or break the Mandate as it winds its way through
the judicial process.

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ISSUE 1 2022 27

COVER STORY

and set a briefing schedule for further arguments. anticipate the impacts—seen and unforeseen—boded by the
Mandate. The trucking industry is no different. According to
Whatever the Mandate’s fate in the Sixth Circuit, it is likely ATA President and CEO Chris Spear, the Mandate could “have
that the Supreme Court will have final say in the matter.
Despite the Sixth Circuit’s upholding the stay, the current legal devastating impacts on the supply chain and the economy.”
limbo is wrenching for businesses across the nation trying to
As a majority of Americans depend upon trucking for daily

needs, the potential disruption would undoubtedly have a

trickle-down effect on nearly every community in the nation.

David Heller, vice-president of government affairs with the
Truckload Carriers Association, has opined that the Mandate,
if implemented, could eliminate as much as 37% of the U.S.
professional driving workforce.

There remains a silver lining, however. Even if the Mandate
prevails in the current litigation, its applicability to trucking
companies remains subject to debate. The uncertainty lies in
the Mandate’s exemption of “employees of covered employers:
(1) [w]ho do not report to a workplace where other individuals,
such as coworkers or customers, are present; or (2) while
working from home; or (3) who work exclusively outdoors.”
86 Fed. Reg. 61,402. Expect trucking companies and trade
groups to argue to OSHA that the first exemption applies to
commercial truckers given the solitary nature of their work.
Should OSHA think otherwise, expect more litigation further
down the road. Stay tuned.

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16/03/15 7:05 pm

COVER STORY

Epilogue water, other state-issued and industry-specific mandates
remain in effect across the U.S. and in other countries. As
Predictability (though too late for press time), following the Canadian truckers’ ongoing protest of that country’s mandates
Sixth Circuit’s ruling upholding the Mandate, the Supreme and COVID restrictions demonstrates, the debate over
Court took up the issue. During nearly 90 minutes of oral pandemic policies will continue to affect the trucking industry
argument on January 7, lawyers for OSHA and the trade groups for the foreseeable future.
and states contested the necessity and legality of the Mandate

before the high court. The fact that the argument took place

during the height of the recent Omicron wave seemed not lost C. Stephen Setliff and Johsua D. Howell are with Setliff Law
on the justices—particularly the Court’s liberal contingent. Firm and may be reached at their following respective email
Justice Stephen Breyer found “unbelievable” the trade groups’ addresses: [email protected] and [email protected]
argument that it would be in the public interest to halt the

Mandate “with . . . nearly three-quarters of a million people –

new cases every day.” On the other hand,

Justice Samuel Alito, of the Court’s more

conservative majority, questioned the

feasibility of Mandate given the scarcity

of testing. Justices Brett Kavanaugh and

Neil Gorsuch directed their questioning

to whether Congress could have intended

to entrust such important decisions to an

agency like OSHA. As argued by the trade Unrivaat laendupnobrtefaotlaiobloefpcroivceerage
groups, the so-called “major-questions
doctrine” required Congress to “speak
clearly if it wishes to assign to an agency
decisions of vast economic and political

significance.” Justice John Roberts, whom

many consider to be the current centrist on

the Court, directed pointed questions to

both sides of the debate—questioning the LIABILITY BOBTAIL CARGO DAMAGE TRAILER
executive branch’s authority to use agency

rule-making as a work around for policy-

making best left to the states, while also

seeming to acknowledge the pandemic as a

work-place problem within the purview of

OSHA’s regulatory ambit.

Six days after oral argument, on Jan. 13, SScaavne& 844.980.4644
the Court issued its ruling. In an opinion
joined by a six-justice majority, the Court latorreinsurance.com/SAVE
held that OSHA had exceeded its authority
in promulgating the Mandate. The
majority found that “[a]lthough Congress
has indisputably given OSHA the power to
regulate occupational dangers, it has not
given that agency the power to regulate
public health more broadly.” Justices
Breyer, Sonia Sotomayor, and Elena Kagan
dissented—finding that OSHA acted
within its authority in issuing the Mandate
in response to an unprecedented public
health crisis.

While the OSHA Mandate is dead in the

ISSUE 1 2022 29

INDUSTRY NEWS

EMPOWERING. INSPIRATIONAL. EDUCATIONAL.

NCTA's Women in Trucking Summit was a big success
#NCTAWomenTransmitPower2021

BY NCTA STAFF 

NCTA Women in Trucking Council hosted the inaugural NCTA and tips needed for success, including how to provide critical
Women in Trucking Summit last November in Raleigh, NC.  feedback to your boss. Debbie Gardner and her husband, Mike,
Women and men working in all facets of the trucking industry demonstrated how to live with courage, not fear. The duo
attended, sharing ideas, inspirational thoughts and best retired law enforcement, through humor, tons of energy and
practices that encourages and supports women in this industry.  inspiring storytelling, they reach everyone in the audience on
The Summit speakers unique uplifting presentations elevated their journey through overcoming fear.  Kellylynn McLaughlin,
the awareness of the need to develop women leaders, promote Women in Trucking Association’s Ambassadors, spoke about
a more gender-inclusive culture, and establish stronger her mission to impact change for female drivers in the industry.
relationships– coming together to support and empower She captivated everyone with her stories of life on the road. The
each other. audience learned quickly she is a force to be reckon with. 

Keynote speaker Kelly Radi, a real-life Wonder Woman, “Staff and I were honored to work with the NCTA Women
presented ways to boost your performance at work while in Trucking Council leadership planning this event,” said
empowering your personal life.  She had everyone on their Crystal Collins, NCTA President.  “We knew it was going to
feet in a wonder woman pose harnessing their heightened be a success based on the energy and excitement at the onset
sense of self-awareness to propel in their careers. Dawn of the idea of hosting a summit.”   The Summit exceeded the
Holzer, Pathways Leadership Consulting, provided key tools attendees and sponsors expectations, the planning committee

30 TARHEEL WHEELS

INDUSTRY NEWS

has already begun for this year’s Summit to be held on reception on Thursday night. It helped in breaking the ice, so
November 3-4, at the Renaissance North Hills hotel in Friday morning we were able to kick off the day and we knew
Raleigh, NC. people sitting around us.”

“Excellent speakers and topics that were relevant and timely, “Fantastic event that I look forward to attending and
and great industry networking opportunities!” participating in years to come!”

“This summit was a step above! I enjoyed the networking “For the first year, this was a stellar event.”

ISSUE 1 2022 31

INDUSTRY NEWS

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INDUSTRY NEWS

ISSUE 1 2022 33

INDUSTRY NEWS

34 TARHEEL WHEELS

INDUSTRY NEWS

ISSUE 1 2022 35

INDUSTRY NEWS

Join the Best of the Best

June 10-11, 2022
NC State Fairgrounds

TOP TECH CHALLENGE TRUCK DRIVING CHAMPIONSHIP

Technician Eligibility: Contestants must reside in the state Driver Eligibility: Be based in North Carolina & have been
continuously employed for the previous 12 months Have an
of North Carolina and be employed by a member of the accident free driving record for the previous 12 consecutive
North Carolina Trucking Association or be enrolled as a months Have the proper CDL endorsements for the class
student at a state sponsored college or university that has a driven Be employed by an NCTA member company
transportation program. Contestants must sign and return
agreement and release form upon registration.

Reserve Tent Space | Volunteer | Nominate Drivers of the Month/Year
**Deadline for entry of TDC and/or Top Tech is May 20, 2022**

36 TARHEEL WHEELS

INDUSTRY NEWS

NCTA's Annual
Management Conference

July 24-27, 2022
The Omni Grove Park Inn | Asheville, NC

Hotel room block deadline: June 24, 2022

Featured Speaker: Mike Lerario

The Leader’s Dilemma: Finding the Balance
Between Leading and Managing

Mike is a retired Army Lieutenant Colonel, having
served 23 years on active duty in Airborne and Ranger
Infantry units. He will teach you how to take your
existing approach to leadership and transform it into a
highly-balanced strategy for success.

ISSUE 1 2022 37

NEW MEMBER SPOTLIGHT

NEW MEMBERS

ALLIED Pilot Risk Management Consulting
Platinum Specialty Underwriters -
Allison Transmission XPT Transportation
Geotab Roadmaster Driver School
Good's Insurance Agency SAF-Holland Inc.
Griffin Insurance/Leavitt Group Setliff Law, PC
KeepTruckin
Linxup The Goodyear Tire and Rubber Company
M&P Specialty Insurance
McCarthy Tire Service Transharpe Solutions, LLC

CARRIER

Adams Beverages of North Carolina LLC J T Russell & Sons, Inc.

Atlantic Coast Hauling, LLC J.L. Rothrock

Cardinal Logistics Management MCO Transport, Inc.
Corporation RMT Logistics LLC
TForce Freight
CarMax Transport Tacticians LLC
XPO Logistics, Inc.
Carrigan & Sons Trucking, Inc.

Custom Ecology, Inc.

38 TARHEEL WHEELS NCTA
WELCOMES

NEW
MEMBERS

AN INSIDE LOOK

LATORRE INSURANCE The Dealer of the Year Award is presented annually to the Kenworth
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CALENDAR TARHEEL WHEELS
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Cherokee, NC NCTA Annual Management Conference
www.nctrucking.com/2022-annual-
management-conference/ 37

NOVEMBER NCTA TDC/TopTech Championships
www.nctrucking.com/tdc-and-technician-
3 – 4 2022 NCTA Women in Trucking Summit competition 36
Renaissance Raleigh North Hills Hotel
Raleigh, NC People’s United Equipment Finance 28
www.peoples.com

PrePass Safety Alliance
www.prepassalliance.com 12

Southern Tire Mart 8

TBS Factoring
www.tbsfactoring.com 6

Thermo King of the Carolinas
www.tkcentralcarolinas.com 25

40 TARHEEL WHEELS

BY THE NUMBERS

North Carolinians Win Big In
Infrastructure Spending Bill

Infrastructure

North Carolina The Need for Action is Clear: How North Carolina Benefits
from the Infrastructure Bill:
For decades, infrastructure in North Carolina has suffered
from a systemic lack of investment. The historic Bipartisan $7.7 Billion
Infrastructure Law will make life better for millions of
North Carolina residents. Federal highway formula funding for
highways and bridges
North Carolina Infrastructure Snapshot:
28.7% MORE
1,460 bridges in poor condition
than the State’s Federal-aid highway
3,116+ miles of highway in poor condition formula funding under current law.
(On an average annual basis over 5 years)
10.7% increase in commute times since 2011
$73.9 Million
$500 spent per year by each driver in costs
Funding to augment commercial motor
due to driving on roads in need of repair vehicle (CMV) safety efforts to reduce
CMV crashes through the Federal
Motor Carrier Safety Administration’s
Motor Carrier Safety Assistance
Program (MCSAP) formula grant

67% INCREASE

in funding compared to FAST Act
levels

National Infrastructure Grant Programs: Nationwide Total

In addition to the $7.7 billion in guaranteed formula funding, $8 billion
North Carolina is also eligible to apply for these competitive grants: $12.5 billion
Nationally significant freight and highway projects (AKA INFRA)
Bridge investment program $2 billion
Rural surface transportation grant program $2.5 billion
Grants for charging and fueling infrastructure $400 million
Reduction of truck emissions at port facilities $10 billion
National Infrastructure Project Assistance $250 million
Congestion relief program $7.5 billion
Local and Regional Project Assistance (AKA RAISE/BUILD program)

Trucking.org FOR MORE DETAIL: Visit the link below for a U.S. Department of Transportation Federal Highway
Administration spreadsheet including year-over-year Highway Authorizations by program.
https://www.fhwa.dot.gov/bipartisan-infrastructure-law/docs/highway_authorizations_nov302021.xlsx

ISSUE 1 2022 41

OUTTAKES

THE DRIVER TUG-OF-WAR

BY STEVE KEPPLER
GUEST WRITER

The last two years have driver, since the bar to entry has increased and there are
brought much attention to other job opportunities out there. In addition, actions
the trucking industry, some surrounding AB5 and the PRO Act are targeting the
of it good, some not so much. independent contractor model, and while not resolved yet, are
In 2020 when COVID hit, further squeezing the available driver pool. Lastly, the big push
the industry was hailed as to automated vehicles has many drivers wondering whether
the savior—moving goods their jobs are at risk.
needed to keep the country
moving, the shelves stocked, On the flip side, freight volumes are at record high levels, as
and its people safe from the are rates and driver pay. This has led to an unprecedented
virus. In 2021 as the economy number of new small for-hire carrier authorities granted in
opened back up, supply chain 2021. Carriers are implementing major pay raises and signing
issues wreaked havoc around bonuses for drivers and are offering additional benefits and
the world. Goods were not more home time. All these strategies are aimed at pulling more
being delivered on time, drivers into the industry. However, this could lead to
and the shelves were not more churn.
stocked. Drivers were in short
supply with many leaving the New initiatives like the Safe Driver Apprenticeship Pilot
industry. The current tug-of-war with drivers is more acute Program, as well as additional activities being pushed through
than it ever has been in my 30 years in the industry. It’s time the Biden-Harris Trucking Action Plan, are aimed at attracting
to double down on retaining those we have, while keeping an new, younger, and more diverse candidates into the driver pool.
open mind to our recruitment approaches. Additionally, with each passing day the trucking industry is
becoming more technology- and data-enabled, which offers
The American Trucking Associations estimates there currently another means to attract talent.
is a shortage of 80,000 drivers. In the midst of this, there are
forces that are pushing even more drivers out of the industry. At the end of the day, our industry is about people. We can’t
In 2020, FMCSA began operating the Drug and Alcohol treat drivers like commodities anymore. If the last two years
Clearinghouse, and to date, more than 80,000 drivers are not has shown us anything, it is that we must focus on retaining
allowed to operate a CMV as a result of a violation, a substantial the drivers we have, and being more creative at bringing
number by any measure. The pandemic has led many new ones in. We also need to ensure we are listening to and
drivers to retire or leave the industry for other occupations. communicating with them, because as they go, so do we. I
Compounding this has been the more recent focus on often think back to my high school baseball coach who said that
vaccine mandates. teams are only as good as their weakest link. Drivers are just
the opposite; they are the most important part of this team. So,
While the supply chain challenges have been driving up let’s make sure we treat them as such, and don’t put them in the
freight rates, the related congestion and delays have created middle of a tug-of-war.
frustrations for drivers in some industry segments. The Entry
Level Driver Training rule, which was implemented Feb. 7, Steve Keppler is co-director of Scopelitis Transportation
will also have an impact on the driver pool and may have some Consulting and may be reached at skeppler@
thinking twice about whether they want to sign up to be a CDL scopelitisconsulting.com

Views expressed on this page are the author’s and may or may not reflect the official policies or opinions of the North Carolina Trucking Association.
42 TARHEEL WHEELS

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Kirk’s Sineath Towing

The man standing beside the wrecker with hat on is Serving the
J.I. Sineath, the founder of the company. Picture was taken in Trucking Industry
downtown Greensboro around 1928.
Since 1925
Kirk’s Sineath Towing
700 Patton Avenue Truck and Trailer Repair
Complete Shop Facilities
Greensboro NC 27406 24Hour Mobile Truck Repair
24Hour Mobile Tire Service
Computer Diagnostics
Towing

336-272-3456

www.kstowing.com

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