Mexico Trucker Online Articles

Three more Mexican carriers approved for participation in Cross Border Pilot Program

Coming to the highways and byways of America, this modern fleet of Mexican trucks owned by Servicios Refrigerados Internacionales, one of the latest carriers to pass their Pre-Authorization Safety Audit over the objections of OOIDA

Three more Mexican carriers have passed their Pre-Authorization Safety Audits (PASA) bringing them one step closer to being granted authority to participate in the much maligned Cross Border Pilot Program for Mexican carriers.

Higienicos Y Desechables Del Bajio, Servicios Refrigerados Internacionales and Transportes Del Valle De Guadalupe passed their audits easily and the findings were published in the Federal Register last Friday, giving the public the required 10 days to comment on the fitness of these carriers to participate in the program.

“Fitness” refers to the ability of the carrier to perform safely and comply with the rules, regulations and laws of the United States, something Mexican carriers have historically and statistically excelled at.

And as expected, The Owner Operators Independent Drivers Association (OOIDA), long an opponent of allowing Mexican trucks into the United States, came out with a statement from Executive VP Todd Spencer putting the powers that be on notice that the association is “reviewing” the applications to make certain all the “i’s” were crossed and the “t’s” dotted.

According to Spencer, who thanks to Mexico Trucker Online and others, has, in the past, exposed and debunked all the claims of Spencer and his organization that Mexican carriers and drivers are ill qualified, unsafe and pose a hazard to American motorists, is reduced to whining about these carriers having “affiliations” with other carriers.

Believe me folks, I’m not making this crap up! Spencer claims that current research on the three new applicants shows they have affiliations with other motor carriers. Oh, the horror of it all!

“I guess we should be used to the fact that the agency really isn’t checking out applicants,” Spencer whined. 

“Applicants are required by law under severe penalties to disclose to disclose affiliations. They simply don’t. Apparently FMCSA thinks that’s good enough,” Spencer said. “Certainly we don’t believe that is good enough. Those affiliations do need to be disclosed. The fact that they are not should be on its face enough to disqualify them.

"Dangerous, unsafe, rolling junkyards" such as these 2011 Kenworth T-660's, at least that is the claim of opponents such as the Teamsters and OOIDA or poised to become a common sight on US highways. Mexican trucks and their drivers have historically returned safety and compliance ratings superior to US carriers

Apparently the months it is taking FMCSA to check out these carriers before performing the PASA’s doesn’t count in Spencer’s mind.

But once again, and as usual, Spencer and company is not telling the public and their members.

William Quaide, an FMCSA assistant director replying to OOIDA’s comments against Baja Express Transportes, making many of the same claims that they are making here, had this to say;

It is not uncommon for motor carriers from the United States, Mexico, and Canada to leave the affiliations question unanswered on operating authority applications. As a result, this alone is not grounds to reject an OP-1 or OP-1 (MX) application. For OP-l(MX) applications, the Agency requires that the affiliations question be answered and requests that applicants amend their applications with a
response to the question. The application will not be further processed until the missing information is supplied. If, an affiliation is identified, and the affiliated carrier has a record of significant non-compliance that may include, but is not limited to, out of service orders, an unsatisfactory compliance review, failed safety audit, Safety Measurement System (SMS) scores above the threshold levels, non-payment of penalties, and/or the appearance of reincarnation to avoid enforcement, these factors may lead to Agency dismissal of the application.

So, in other words, FMCSA is well aware of OOIDA’s attempts to side track or derail individual applicants who desire to participate in the program through asinine revelations that the applications were not properly signed or perhaps the carrier has an affiliation of some sort with another carrier, which in and of itself is not illegal. FMCSA and to his credit, Bill Quade, is having none of it.

We look forward to OOIDA’s comments on these three carriers and FMCSA’s reply dismissing them.

To date, 26 crossing have been made by two of the participants since the program started 7 months ago.

Download and read the FMCSA response to OOIDA here

Teamsters file frivolous lawsuit seeking to stop Mexican Truck Program

James Hoffa and his Teamsters have filed yet another frivolous lawsuit in an attempt to stop the US compliance with our NAFTA obligation and promises

At the 11th hour today, Teamsters, along with Public Citizen filed a lawsuit in 9th Circuit Court in San Francisco seeking to stop implementation of the Mexican Cross Border Program.

The suit was filed against the US Department of Transportation and the Federal Motor Carrier Safety Administration alleging that the pilot program sets standards that aren’t stringent enough for Mexican trucks and drivers. For example, the program waives a law requiring trucks to display proof of meeting federal safety standards, said Jonathan Weissglass, a lawyer for the plaintiffs.

An official for the Federal Motor Carrier Safety Administration said the Teamsters haven’t directly served the agency with a lawsuit. Once they do, the agency “will review and address the filing,” she said, adding that the pilot program will begin within 30 to 60 days. The official declined to address the substance of the suit.

U.S. officials have said the deal would hold Mexican truckers to high safety standards, and business groups have said it is important to make a deal with Mexico because the retaliatory tariffs are costing the U.S. jobs.

The arguments laid out in the complaint are faulty at best. For instance, The Teamsters allege the trucker program is faulty because it contains certain standards that are impossible for Mexico to meet. Mexico won’t be able to provide comparable access to U.S. trucks, as required, because ultra-low-sulfur diesel fuel isn’t widely enough available there.

Ultra Low Sulfur diesel is widely available in the major cities and along the border, however the argument is moot as the routes US truckers are likely to take would put them well within range of their diesel capacity filled on the US side.

They also claim that Mexican truckers have less stringent vision requirements, which while true, is really a non issue. Mexico requires only recognition of the color “Red” while US vision requirements require cognizant recognition of red, yellow and green.

That’s all we know at the moment. Apparently, the comment at the conclusion of the MCSAC subcommittee by attorney Carlos Sesmas enraged the little man sufficiently to cause this frivolous lawsuit to be filed.

Public Citizen and the Teamsters went before the court in 2007 over the Mexican truck issue, joined by the Sierra Club and OOIDA. Even using false and misleading evidence (ie: Trinity Industries), the court dismissed the lawsuit.

We imagine that will be the case this time.

Cross Border Trucking with Mexico – “It’s going to happen, There is no way to stop it”

You'll soon being seeing safe, modern Mexican rigs driven by professional drivers on US highways as the US finally complies with it's obligations under NAFTA

During the scheduled meeting of the Motor Carrier Safety Advisory Committee in Alexandria Virginia yesterday, those were the words of  Carlos Sesma, an attorney representing Mexican trucking interests before the committee.

And Sesma was correct.

The MCSAC is a subcommittee of the FMCSA charged with overseeing the Mexican Cross Border Pilot Program.

OOIDA Executive Vice-President Todd Spencer who is a member of the committee was making the usual asinine and totally false claims about the program.

“What’s behind this is access to cheaper sources of labor,” Spencer claimed after the meeting, repeating the thoroughly debunked claim that it will put American jobs at risk and raises numerous safety concerns.

Mexican trucks have historically shown to have a lower percentage of Out of Service violations for vehicles and drivers than their US counterparts.

A representative of the Teamsters Union who sits on the committee,  Lamont Byrd, director of safety and health for the Teamsters union, said he had concerns also, but refused to elaborate on what they might be. (As if we can’t guess)

But the agreement will not take jobs from U.S. truckers, Sesma said, because Mexican drivers won’t stay in this country for work. As for safety, he said, cross-border truckers from Mexico are from areas near the U.S., so most read and speak English and understand U.S. traffic laws.

Bill Quade, a program administrator for the FMCSA, countered,  “I suspect the Mexican government will put billions of dollars of tariffs back onto U.S. goods, if the program is delayed again.”  Quade is correct.

Mexico reserved the right to reestablish the $2.5 billion dollars in legal tariff’s against US exports they put on US produced goods and agricultural products when the Obama Administration caved to pressure from union interests and reneged and defunded the previous highly successful cross border demonstration project. Those tariff’s cost US workers 25,000 jobs and more than 14% market share in the agriculture sector.

Though all the misinformation and hysteria being promoted by the Teamsters and OOIDA, Quade also revealed that to date, only 5 Mexican trucking companies had submitted applications to participate in the program.

Carlos Sesma said the creation of an open border for commerce is inevitable, which is why the agreement makes practical sense. He said the current method of carrying long-distance freight across the border, in which a truck drops a trailer and another picks it up, is inefficient.

It also makes practical sense as it put the United States in compliance with it’s international obligations and with a promise made and evaded for more than 17 years.

But that wasn’t good enough for Spencer, who continued with his naysaying and fear mongering.

Spencer characterized Sesma’s statement  “unbelievably exaggerated.” He questioned the ability of U.S. and Mexican states to police drivers with poor records and he claimed that the scarcity of low-sulfur diesel in Mexico, which is needed for most newer-model U.S. trucks, would be a handicap for American truckers trying to penetrate the Mexican market.

“Any real, meaningful truck travel in Mexico isn’t going to be possible,” Spencer said.

Spencer is the master of “unbelievable exaggeration”.  As a member of the committee, Spencer is well aware of the FMCSA and individual states ability to access Mexican driver databases and that ultra low sulfur diesel is readily available in Mexico along the lanes that US truckers would run, not that they would need to buy any.

And Spencer ignored the fact that 4 US trucking companies are still successfully and very profitably operating in Mexico after being allowed access under the 2007 cross border trucking agreement with Mexico. That’s right folks! When the US was hurrying to renege on our obligations with Mexico in 2009 by de-funding the previous program, Mexico allowed continuous operation by US participants in their country, to the consternation of CANACAR, the association which represents the majority of major Mexican trucking firms.

OOIDA’s Mark Reddig said in a recent blog entry;

Let me be clear about one thing, though. We intend to fight the opening of this border tooth and nail, with every ounce of energy we have. And we intend to win.

So far, not only have we won every round, but in fact we’ve had most of Congress and numerous other organizations with us.

If you call “winning” using lies, fear mongering, misinformation and other underhanded tactics, winning, then perhaps they have, but it’s nothing to be proud about, but this time fat boy, you lose!

A major win for OOIDA and Truckers as US 7th Court of Appeals tosses EOBR mandate

An opinion by the U.S. Court of Appeals for the Seventh Circuit in response to a lawsuit filed by the Owner Operators Independent Drivers Association (OOIDA) against the mandate for Electronic Onboard Recorders (EOBR’s) has effectively vacated the regulation for now based on the argument of “driver harassment” and sent it back to the FMCSA for reconsideration and a possible rewrite.

This is a major victory for US truckers who have fought against the implementation of this regulation. However, the fight continues as two Senators, Lamar Alexander and David Prior have a bill pending before Congress which would make this requirement law.

“It’s a fantastic decision,” OOIDA President Jim Johnston said. “The decision dealt with the issue of harassment of drivers, but the court left room to come back and challenge other aspects if the agency gets overly enthusiastic about how they want to monitor truckers.”

OOIDA had presented three arguments as to why the regulation should be set aside, but Circuit Judge Diane Wood, stated that the court “need address only the first issue” of driver harassment.

Judge Wood’s opinion stated; “that if an agency “fails to consider a factor mandated by its organic statues, this omission is alone ‘sufficient to establish an arbitrary-and-capricious decision requiring vacatur of the rule.”

You can read more about the ruling at LANDLINEMAG.

This is what OOIDA was established to do and they have our full support in their endeavors such as this. Wasting time and money fighting the Mexican cross border program, a cause the United States is morally and legally obligated to comply with is not only a waste of resources by OOIDA but does severe damage to their credibility as an association supporting truckers because of the methods they have employed in the past and continue to use.

But congratulations to all who was responsible for this win. It gives all of us a little extra breathing room from the nanny regs that FMCSA seems determined to shove down our throats.

1 million truck violations cited at border crossing? The rest of the story

The rest of the story emerges about the El Paso times story we wrote about earlier this week, concerning the thousands of violations reported by Texas DPS inspectors at two commercial crossings in El Paso Texas.

While we have some concerns about the number of violations reported over 4.5 years, the Times story claims 1.2 million inspections were done at the Zaragosa and Bridge of the Americas in El Paso, we could only find 811,574 inspections reported on the FMCSA NAFTA STATISTICS pages.

Some have suggested that the numbers are flawed considering the man hours that would need to be expended to come up with this number of inspections in the time frame indicated. That’s possible but highly improbable considering the methods used and the manpower on site.

Section 350(c) required, among other things, state inspection/weigh stations be established at all commercial crossing along the southern border, to monitor and inspect incoming Mexican trucks, especially those participating in the 2007 cross border program. The defunding of that program by the Obama administration as political payback to the Teamsters, however, did  not defund these inspection facilities. Contrary to what opponents of cross border trucking and Mexican trucks would have you believe, 100% of the trucks crossing our southern border are INSPECTED at these facilities. 350(c) mandates that these stations to be in operation during the hours the commercial crossing are open.

In El Paso, The Zaragosa bridge is open Monday – Friday 0600 to Midnight, or 18 hours. On Saturday, they are open from 0800 to 1600 and closed on Sunday.

The Bridge of the Americas hours of operation is Monday – Friday, 0600-1800 or 12 hours. Saturday hours are 0600-1400, closed on Sundays.

The hours the inspection stations where this data was supposedly gleaned from are required under law, to maintain the same schedule.

The Texas DPS commercial vehicle inspectors perform inspections under the CVSA North American Inspection Standards, although Texas being Texas, has been known to put additional, more stringent, some would say “anal” requirements to their inspections.

There are six levels of CVSA inspections, although Levels I-III are pertinent to this discussion.

• LEVEL I   North American Standard Inspection
• LEVEL II  Walk-Around Driver/Vehicle Inspection
• LEVEL III Driver/Credential Inspection
• LEVEL IV Special Inspections
• LEVEL V Vehicle-Only Inspection

[pullquote]“The number of violations for the trucks from Mexico is in line with U.S. industry standards.They are either no worse than U.S. trucks and better in some cases.”- Rep. Joe Pickett, D-El Paso[/pullquote]

“This report confirms what we have been saying for years – Mexican trucking companies and their fleets are not held to the same stringent safety standards as American carriers. Until they meet every safety, training and environmental standard that our trucking companies meet, we should not allow these unsafe Mexican trucks to drive freely through our country.”

R-i-i-i-ight.

Unfortunately, Pickett is exhibiting the same cluelessness about the dangers of Mexican trucks as the U.S. Department of Transportation, which wants to open the borders to them in a month or two.

The Teamsters will see about that.

“They are either no worse than U.S. trucks or better in some cases,”

1 million truck violations cited at border crossing? The story behind the story

Federal and Texas DPS inspectors at Brownsville POE

Today’s El Paso Times has a piece out titled “1 Million Truck Violations Cited at Border Crossing”by Diana Washington who has in the past been a reputable reporter on things concerning the US/Mexico border in El Paso. But the story is misleading and just the sort of thing we expect OOIDA to jump on first thing tomorrow morning. So let’s defuse this bomb before they have a chance to use it.

The story reads in full;

Texas state inspectors in El Paso have found thousands of safety violations in trucks coming from Mexico, including bad brakes, flat tires, axle problems and defective lights, statistics show.

Between fiscal years 2007 and the first six months of 2011, the state conducted 1.2 million inspections at state facilities by the Bridge of Americas and the Zaragoza International Bridge. The state fiscal year runs from Sept. 1 to Aug. 31.

During that period, officers found a million violations, and placed 31,519 trucks and 625 drivers out of service. Many trucks had multiple violations.

Why that’s just terrible folks, isn’t it? Based on that, we should ban all Mexican trucks from the US, Canadian too if you want to be fair about it. But how do those number break down?

The fiscal year runs from October until September 30 of the following year so in the case of this report we would be looking at,

• 54 fiscal months
• 216 fiscal weeks
• 1620 fiscal days (give or take a day or two)

Mexican Labor Law and the Mexican Cross Border Trucking Debate

Mexican truckers such as these are covered under Mexican Labor Law which dictates HOS, benefits, employee rights etc. Photo- Guillermo Arias/Associated Press

Much of the misinformation coming from opponents of cross border trucking with Mexico seems to be coming from ignorance of the country rather than deliberate attempts to misinform the public, I’d like to think, at least where the regulatory structure in Mexico is concerned.

Two of those issues that have been forcibly pushed on the public is lack of Hours of Service Regulations in Mexico and what some perceive as a “weak” or non existent regulations for the Mexican trucking industry. Regulations of the trucking industry in Mexico is neither of those.

The differences are enormous as trucking journalist Tim Brady points out in his article REGULATING TRUCKERS.

Brady writes;

Mexican Truckers’ regulations are consequence regulations. If a Mexican trucker makes a mistake–consequences: the Mexican government will take away his ability to operate a commercial vehicle for a period of time. If he causes an injury in a preventable accident–he will lose that privilege for the rest of his life; if there is a fatality–the trucker goes to jail for years. Mexican truckers are required to have work visas to drive in the US; the cost and time it takes to get one in itself becomes a deterrent for being unsafe.

In contrast, the U.S. babysits its truckers and attempts to micromanage every 15 minutes of a trucker’s life through the Hours of Service, EOBRS etc. It is a different view of how to manage the safety of truckers.

MEXICAN LABOR LAW AS IT APPLIES TO THE MEXICAN TRUCKER
Unlike in the United States, Mexican employee rights are constitutionally guaranteed. Mexican labor law has its foundation in Article 123 of the Mexican Constitution, and is implemented through a number of Federal laws, including, the Federal Labor Law (Ley Federal del Trabajo), the law regulating the National Housing Fund for Workers (Ley del Instituto del Fondo Nacional de la Vivienda para los Trabajadores), the Social Security Law (Ley del Seguro Social) and others. The Federal Labor Law, was first adopted in 1931, and amended in 1970.

For those interested, the Labor Laws of Mexico can be downloaded HERE. Rules specific to the Mexican trucking industry are found in Chapter 6 on page 50 titled “Trabajo de Autotransportes”.

Let’s take a look at the law that covers the commercial driver in Mexico.

Article 256 .- The relationship between truck drivers, drivers, operators, collectors and other workers serving trucking board public service of passenger, cargo or mixed, or urban outsiders, such as buses, trucks or cars, and owners or licensees of the vehicles are working relationships and are subject to the provisions of this chapter.

The stipulation in any way misrepresented the provisions above, produces no
legal effect, nor prevent the exercise of rights arising from services rendered.

Article 257 .- The salary is fixed per day, per trip or by ticket sales or by circuit or kilometers routes and will consist of a fixed amount, or a premium income or the amount that exceeds
a given income or in two or more of these forms, under no circumstances be less than the minimum wage.

When the salary is fixed per trip, workers are entitled to a proportionate increase in case
to extend or delay the normal term of the journey because they do not attributable.

Wages can not be reduced by shortening the journey, whatever the cause.

In urban transport or circuit, (intercity bus drivers) workers are entitled to be paid the salary in the case of service interruption due to causes beyond their control. It violates the principle of equal pay provision stipulating the different wages for equal work, if it is provided in lines or services of different categories.

Article 258 .- In determining the salary of days off will be increased to perceive the
work in the week, with a sixteen hundred sixty-six.

Article 259 .- In determining the amount of the salary of holidays and
compensation are subject to the provisions in the second paragraph of Article 89.

Article 260 .- The owner of the vehicle and the licensee or permit holder are jointly
responsible for the obligations arising from labor relations and law.

Article 261 .- It is forbidden to workers:

I. The use of alcoholic beverages during the service and the twelve hours before
beginning work;

II. Use narcotics narcotics or drugs in or outside their working hours without a doctors prescription. Before starting the service, the employee must bring the matter to the attention of the employer andpresent the prescription signed by the physician, and,

III. Receive freight or passage out of the places mentioned by the company for such purposes.

Article 262 .- The workers have special obligations as follows:
I. Treat them with courtesy and dedication passage and cargo with caution;

II. Undergo periodic medical examinations prescribed by law and other rules
work;
III. Caring for the proper functioning of the vehicles and inform the employer of any faults observed;

IV. Make the journey emergency repairs to enable their knowledge,
tool and parts available to them. If you can not make repairs, but the vehicle
can continue to run, drive to the nearest village or to the place fixed for
repair, and

V. Observe traffic regulations and the technical specifications prescribed by national authorities or the employer.

Article 263 .- The employer has the following specific duties:

I. In the long haul transport, will pay for accommodation and meals for workers
when trip is prolonged or delayed for reasons that is not attributable to them;

II. Make repairs to ensure the smooth operation of the vehicle and the safety of
workers, consumers and the general public;

III. Provide vehicles and spare parts essential tool for repairs
emergency and

VI. Observe all traffic regulations on operating conditions and
vehicle safety.

Article 264 .- The special causes of termination of employment relations:

I. Refusal to make the trip contract or its termination without cause. be considered
in any case cause the fact that the vehicle meets the safety
essential to safeguard the lives of workers, users and the public in general;

II. And reiterated the significant decrease of revenues, unless circumstances
justified.

Amazing isn’t it? In the United States, we are considered unskilled labor by the US Department of Labor, and have no specific protections other than those spelled out under OSHA, and various employment laws, which in most cases provide protection for the employer rather than the employee. So let’s recap what we’ve learned.

• ARTICLE 256 establishes the purpose of the chapter and those who are covered by this segment of the law.
• ARTICLE 257 establishes how the driver is paid and restricts deductions, protects pay in event something occurs beyond the control of the driver.
• ARTICLE 258 establishes the salary and the work week which we’ll discuss further in this article
• ARTICLE 259 establishes the salary to be paid for holidays and weekends as we’ll discuss later
•  ARTICLE 260 establishes that the owner or license holder of the vehicle is responsible for compliance with the applicable provisions of this law
• ARTICLE 261 Prohibits workers from (1) using alcohol during working hours or for 12 hours prior to reporting for duty, similar to the US rules from FMCSA, (2) Prohibits the driver from using drugs inside or outside of work unless prescribed by a physician, again, similar to US FMCSA rules. and (3) prohibits drivers from accepting hauling freight or passengers outside of their normal duties,  ie: bootleg freight or contraband.
• ARTICLE 262 establishes the workers obligations to their jobs and to their employer.  Notice how these codified requirements meet or exceed the regulatory standards under FMCSA rules.  (1) Courtesy towards their passengers and care for their cargo as applicable. (2)  Submit to medical examinations as required by their employers, Federal Police for cause and to obtain their Mexican CDL under the rules of the SCT (Secretariat of Communications and Transport), (3) Pre-trip inspections of their vehicles and reporting of problems found to their employers. (4) Make emergency repairs to their vehicle with parts and tools available, and if not able to do so, and the vehicle can safely make it, take it to the nearest place for repairs. (5) Observe all traffic regulations, State, Federal and Municipal and follow all orders of the employer.
• ARTICLE 263 codifies the responsibility of the employer towards the employer. (1) The employer is required by law to pay for the truckers hotel and provide a per diem for the driver when out overnight. (2) Keep the vehicle in safe and compliant working order to protect the employee and the general public. (3) Provide repair services to keep the vehicles road worthy. (4) Compliance with all applicable Federal, State and Municipal regulations. In other words, cannot force or require the worker to break the law.
• ARTICLE 264 establishes the reasons an employer can terminate an employee for cause. Remember, in the US, unless you’re union, you work at the pleasure of your employer and can be terminated for any reason or no reason. (1)  Refusal to accept a trip assignment, abandoning a truck or load before delivery if the vehicle is safe and complies with all applicable rules, laws and regulations. (2) Who the hell knows what that means

An employer may terminate an employee’s employment without liability only upon completion of the project,
upon expiration of the specified term of employment, or for cause as defined in Article 47 of the Federal Labor Law.

Article 47 lists 15 causes for termination:

1.  the employee provides false references regarding her abilities, skills and qualifications for the job;
2.  the employee is found guilty in the course of her employment of a dishonest or dishonorable action, violence, threats or ill-treatment towards the employer or any member of the employer’s family or top management or managerial personnel of the work place, except in cases of provocation or self defense.
3.  the employee is guilty of any acts mentioned in the proceeding items towards any co-workers
4.  the employee is guilty, outside of the work place, of any acts mentioned in item 2 above towards the employer, any member of the employer’s family or the top management or managerial personnel, in the said acts are of such a serious nature as to render the fulfillment of the labor contract impossible;
5.  the employee intentionally causes material damage to the buildings, machinery, tools, raw materials or other items in work place
6.  the employee causes damage of a serious nature, acting without malicious intent, but with negligence which is the sole cause of the damage
7. the employee negligently or carelessly endangers the safety of the work place or persons therein
8.  the employee is guilty of immoral conduct in the work place;
9.  the employee reveals trade secrets or communicates matters of a private or proprietary nature to the determent of the business;
10.  the employee is absent for more than three times in a period of thirty days without the employer’s permission or without sufficient excuse
11.  the employee refuses to obey the employer or her representatives without sufficient reason in matters connected with the services the employee has agreed to provide
12.  the employee refuses to adopt preventive measures to follow the procedures put in force for prevention of accidents or disease
13.  the employee attends work intoxicated or under the influence of a narcotic or harmful drug, unless she has a medical prescription, in which case, she must inform the employer of her prescription and submit a certificate signed by a doctor;
14.  an executory judgment sentencing the employee to a term of imprisonment preventing her from fulfilling her obligations under the labor relationship is issued
15.  other grounds similar to those specified in the preceding paragraphs, if such grounds are of equal gravity and entail similar consequences.

In the event of termination for cause, the employer must give written notice to the employee of the date of the termination of her contract and the reasons for termination. Failure to provide written notice of the reasons for termination shall be sufficient grounds to consider that the termination was not justified.

So even in the event of termination for cause in Mexico, both parties rights are protected, if the law is followed. But let’s say a trucker in Mexico is fired because his employer is having a bad day or for some of the reasons we get fired in the US, in other words, unjustified termination. If a US driver is fired, what rights does he have and what recourse against the employer? None that I am aware of. We serve at the pleasure of our employers.

However, in Mexico, ah, Mexico, that third world country to our south, with no rules or regulations, provides relief for the employee who thinks he has been wrongfully terminated and the onus of proof is on the employer.

Mexico has a Conciliation and Arbitration Board, which is an administrative agency charged with resolving labor disputes. An employee may file a complaint with the Conciliation and Arbitration Board demanding reinstatement or damages within two months of their discharge. The employer has the burden of proving that the employee was terminated for cause pursuant to Article 47 of the Federal labor law. If the employer fails to meets its burden of proof, the Conciliation and Arbitration Board may determine the termination was without justification and award appropriate relief to the wronged employee.

In the event that the Conciliation and Arbitration Board determines that the employer terminated the employee without justification, the employee has the right pursuant to Article 48 of the
Federal Labor Code to:

•  Reinstatement of her job; or
•  Compensation in the form of three months’ wages based upon integrated compensation (i.e., as discussed above, all compensation, including benefits, that the employee can prove she received from the employer during the previous 2 years.

Article 49 of the Federal Labor Law provides that employers are not obligated to reinstate an employee, and the employee may not seek reinstatement, in cases in which: (1) the employee has not been employed with the business for at least one year; (2) the employee is an executive employee; (3) the reinstatement, given all of the circumstances, would be impossible; (4) if the employee rendered domestic services; or (5) if the employee worked part time.

Article 49 requires that if the employee requests reinstatement and is entitled to reinstatement, but the employer refuses to reinstate, then, in addition to the three months’ compensation described in (b) above, the employer must also pay the indemnifications spelled out in Article 50 of the Federal Labor Law as follows:

•  An amount equal to the total integrated compensation payable for one-half of the entire employment period if the employment was for less than one year, or an amount equal to six months’ integrated  compensation for the first year of service, plus twenty days’ wages for each additional year of service;

• If the term of employment was indeterminate, then the compensation shall be twenty days’ wages for each year of service; Furthermore, in any event, the employer shall also pay the entire amount of integrated compensation due to the employee from the date of dismissal to the date on which the compensation is paid.

Finally, Article 162 of the Federal Labor Law mandates that the employer still has to pay a worker dismissed with or without cause, as well as an employee who resigns with fifteen years or more seniority, a seniority premium equal to twelve days’ salary for each year of service rendered. The seniority premium may not, however, be greater than two times the minimum salary then in effect in the economic zone where the employer is located.

MEXICAN TRUCKERS PAY IN MEXICO NOT WHAT YOU THINK

Another objection to the Mexican trucks in the US, is that Mexican truckers are not paid at a rate, equal to a US driver. Well, neither or the Canadians. However, in Mexico, driving a truck is a skilled profession and the truckers are well regarded by the populace. With weekly pay or salary in Mexico averaging $150.00 for a 46 hour week, a Mexican trucker earning $.15cpm and driving 2500 miles a week is earning a salary well above average. But in addition to basic wages, Mexican labor law, again codified thus requiring compliance by the employer.

Social Security (IMSS). Employers must  register employees with the Mexican Institute of Social Security (IMSS) within five days of their hire date.  Employers must contribute a minimum of 17.42 percent of each worker’s salary, depending on the risk-factor of the job, into the social security fund. Employees and their dependents are entitled to IMSS benefits, including the following:

• Retirement Benefits. Retirement is at age 60, with at least 1,250 weekly contributions. The benefit is calculated based upon a multiple of the minimum wage.
• Survivor Benefits. Employees must purchase a life annuity with survivor benefits from a private insurance carrier using funds in their pension accounts.
• Disability Pension. Employees must purchase an annuity with survivor’s benefits from funds in their pension accounts.
• Medical Coverage. Mexican employees may use IMSS medical facilities for essentially all of their health care needs. The benefits provide coverage for a period of 52 weeks, which may be extended if the employee is still contributing to the plan.
• Sickness Compensation. Employees are entitled to 100% of their earnings for up to 72 weeks. After 72 weeks, disability benefits take effect.
• Maternity. Pregnant employees are entitled to 100% of their weekly wages for up to 6 weeks before and 6 weeks after delivery.
• Funeral Grants. Eligible employees are entitled to a payment equal to up to 2 months of minimum wage.
• Day Care. Eligible employees are entitled to have their children ages 43 days to 4 years cared in day care facilities free of charge to the employee.
• Retirement Fund (SAR). Employers must contribute 2% of up to 25 times the annual minimum wage into the retirement fund. Employees may, but are not required to, contribute to the fund. The benefit is payable upon the employee’s death, disability, or reaching retirement age. The benefits are paid out for a maximum of 20 years.
• Workers’ Housing Fund (INFONAVIT). Employers must contribute 5% of the employee’s earnings to the Workers’ Housing Fund. The funds are then placed into individual employee accounts to be used as a source of money for the employee to purchase a house, or as a source for low interest loans for the same purpose. If not used, the funds are paid to the employee uponr etirement, death or disability.

Additional benefits mandated by law include:

• Christmas Bonus (Aguinaldo). Employers must pay employees who have been in their service for at least one year, a year end bonus equal to at least 15 days’ wages before December 20th of
  each year. By practice, the aguinaldo may be equal to 20 or 30 days wages. Employees who have worked for less than one year are entitled to a pro-rated aguinaldo equal to the portion of the year during which they have worked.
• Vacation Premium. Employers must pay a vacation premium to employees equal to 25% of the wages payable during the vacation period.
• Vacation. Employees employed for more than one year are entitled to at least 6 days paid vacation. Vacation leave is increased 2 days for each additional year up to a maximum of 12 days. Additionally, for every 5 years of service, 2 additional days must be added
• Legal Holidays. Mexico has 7 paid legal holidays including: January 1 (New Year’s Day), February 5 (Constitution Day), March 21 (Benito Juarez Day), May 1 (Labor Day), September 16
  (Independence Day), November 20 (Revolution Day), December 25 (Christmas). In addition to those already mentioned, every 6th year when a new president is sworn into office, employees receive
  a paid day off on December 1 (Inauguration Day).
• Profit Sharing. After the first year of business (there is an exemption for the first year of business), employers must pay employees an amount equal to 10 percent of the profits of the
  employer. This amount is to be paid annually. Certain executive and confidential/trust employees are not entitled to the profit sharing.

HOURS OF SERVICE IN MEXICO

One of the strongest objections opponents of cross border trucking have made is that Mexico has no hours of service regulation to control the hours their truckers operate. In the United States, HOS rules are established by the rulemaking process within FMCSA. In Mexico, Hours of Service rules for truckers are established by Constitutional mandate.

But the mandate is not specific to truckers, but to all workers, as shown above.  Hours of Service for truckers are set under Mexico’s Labor Laws, not the SCT, Mexico’s equivalent to the FMCSA.

Mexican labor law establishes the Work week, work day and other factors, which apply to the trucking industry as all other segments of the labor population.

The Work Week. The federal Labor Law of Mexico sets forth a maximum of 48 hours per week as the amount of hours a laborer can work without going overtime. Even so, most companies only run the work week at 40 to 45 hours

The Work Day. For every 6 days of work ( Monday through Saturday ), employees are entitled to one day of rest with full pay. In other words, you are working 6 days but being paid for 7, under the law.

Work Shifts. There are 3 work shifts, consisting of the day shift ( eight hours ), the night shift ( seven hours ) and the mixed shift ( 7 1/2 hours ). The mixed shift is part day shift and part night shift. Those hours that are worked over these periods are considered to be overtime ( paid as such – double the hourly rate ) and can not go over 9 hours per week. THIS IS THE PROVISION THAT ALSO COVERS MEXICO’S COMMERCIAL DRIVERS AND THUS IS A DEFACTO HOS LAW.

Upper Left: Mobil Medical Unit – Upper Right: Initial Exam – Lower Left – Part of Medical exam for LFC qualifications – Lower Right – Application line at Federal Testing Center

In a draft submitted to the Motor Carrier Safety Advisory Committee in September of 2010, a committee which Todd Spencer, Executive vice president of OOIDA is a member and surely has seen this memo, The SCT of Mexico shared a review of Mexican fatigued drivers.  The SCT found:

• Only 38% drive between 5 and 8 hours a day
• 62% drive more than 9 hours a day
• 42% and 45% of passenger bus and truck drivers drive 9-12 hours a day and 0.7% are involved in fatal accidents

I’ll close this with a modified quote from the esteemed trucking journalist Tim Brady from his article referenced above:

the side of the trucking industry who believe every trucker is an irresponsible adolescent who needs to be baby-sat every hour and mile they drive. And the side that’s drunk the Kool-Aid that says just because a country doesn’t regulate their truckers in the same micro-management manner the US does, they must be unsafe and dangerous. This lacks logic and common sense. Anyone knows the more you try and control any segment of the population, the more you will either dumb down the quality of those individuals – or they will revolt.

Perhaps there should be some revolt against those who have engaged in a deliberate campaign to smear the Mexican trucking industry and instill irrational fear into their members on a subject they no nothing about to satisfy their own self interests.

FMCSA refuses demand by OOIDA to delay cross border program with Mexico

You'll soon being seeing safe, modern Mexican rigs driven by professional drivers on US highways as the US finally complies with it's obligations under NAFTA

It’s all procedural, but FMCSA has refused demands by the Owner Operators Independent Drivers Association (OOIDA) to halt implementation of the Cross Border Pilot Program pending resolution of the frivolous and baseless lawsuit filed against the agency earlier this month.

OOIDA’s legal counsel, Paul Cullen Sr. with The Cullen Law Firm, sent a letter to FMCSA on July 8 asking the agency to consent to stay the program pending resolution of the petition for review.

FMCSA’s counsel denied the request on July 13.

Under rules of procedure, OOIDA was  required to ask FMCSA for the stay because a party to such an appeal, (OOIDA) cannot ask the court for a stay unless it first asks the agency (FMCSA) and is turned down.

On July 6, OOIDA filed a petition for review with the U.S. Court of Appeals for the D.C. Circuit. OOIDA is demanding that the court  review the program and to “enjoin, set aside, suspend (in whole or in part), or determine the validity of the implementation of this program.”

OOIDA claims that “implementation of the pilot program is arbitrary, capricious and abuse of discretion and otherwise not in accordance with law.”

This is just another of OOIDA’s attempts to mislead the public and prevent the United States from complying with their obligations under NAFTA.

Implementation of the cross border program will finally put us in compliance and cause Mexico to lift the legal retaliatory tariff’s put on more than 90 US export good when the Obama administration defunded the previous pilot program. Those tariffs have cost Americans more than 25,000 jobs and 14% market share in the agriculture and manufacturing sectors.

OOIDA Executive Vice President Todd Spencers admitted in a “Call to Action” that neither the lawsuit, nor a bill before Congress, HR-2407 , has a snowballs chance in hell of stopping the program.

In their desperation, OOIDA resorted to filing this lawsuit which on it’s face is “arbitrary, capricious and frivolous” inasmuch as the issues raised have already been resolved by the US Supreme Court in the case “PUBLIC CITIZEN v FMCSA”  In the unanimous decision, SCOTUS sided with the defendants.

The D.C appeals court is likely to rule against OOIDA in this lawsuit also.