1 BEFORE THE PUBLIC UTILITIES COMMISSION OF OHIO 2 - - - 3 In the Matter of Michael : 4 Barker, d/b/a ComEx : Transport, Notice of : Case No. 16-2186-TR-CVF 5 Apparent Violation and : Intent to Assess : 6 Forfeiture. : 7 - - - 8 9 PROCEEDINGS 10 before Ms. Megan J. Addison, Hearing Examiner, at the 11 Public Utilities Commission of Ohio, 180 East Broad 12 Street, Room 11-C, Columbus, Ohio, called at 13 10:00 a.m. on Tuesday, February 21, 2017. 14 - - - 15 16 17 18 19 20 21 22 ARMSTRONG & OKEY, INC. 222 East Town Street, 2nd Floor 23 Columbus, Ohio 43215-5201 (614) 224-9481 - (800) 223-9481 24 25 - - - 2 1 APPEARANCES: 2 Mike DeWine, Ohio Attorney General By Mr. William L. Wright, 3 Section Chief By Mr. Thomas G. Lindgren 4 Mr. Werner Margard Assistant Attorneys General 5 Public Utilities Section 30 East Broad Street, 16th floor 6 Columbus, Ohio 43215 7 On behalf of the Staff of the Public Utilities Commission of Ohio. 8 Mr. Michael Barker 9 On his own behalf. 10 - - - 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 1 INDEX 2 - - - 3 WITNESSES PAGE 4 William David Wilson Direct Examination by Mr. Lindgren 5 5 Cross-Examination by Mr. Barker 13 6 Michael Barker Direct Testimony by Mr. Barker 23 7 Cross-Examination by Mr. Lindgren 29 8 - - - 9 STAFF EXHIBITS IDENTIFIED ADMITTED 10 1 - Driver/Vehicle Examination 11 22 Report, dated 8/12/2016 11 2 - Notice of Preliminary 22 22 12 Determination, dated 10/25/2016 13 - - - 14 RESPONDENT EXHIBITS IDENTIFIED ADMITTED 15 1 - Invoice from K & M Truck, 26 33 16 Trailer & Auto, dated 8/13/2016 17 2 - Letter from Dwayne Jones, 26 33 18 K & M Truck, Trailer & Auto Repair Inc., 19 dated 1/25/2017 20 3 - Driver/Vehicle Examination 29 33 Report, dated 11/11/2016 21 - - - 22 23 24 25 4 1 Tuesday Morning Session, 2 February 21, 2017. 3 - - - 4 EXAMINER ADDISON: The Public Utilities 5 Commission of Ohio has assigned for hearing at this 6 time and place Case No. 16-2186-TR-CVF being In The 7 Matter of Michael Barker, d/b/a ComEx Transport, 8 Notice of Apparent Violation and Intent to Assess 9 Forfeiture. 10 My name is Megan Addison and I'm the 11 Attorney Examiner assigned by the Commission to hear 12 this case. 13 At this time we will go ahead and take 14 appearances of the parties present this morning. 15 On behalf of the Staff. 16 MR. LINDGREN: On behalf of the 17 Commission Staff, Ohio Attorney General Mike DeWine, 18 by Thomas Lindgren and Werner Margard, Assistant 19 Attorneys General. The address is 30 East Broad 20 Street, 16th floor, Columbus, Ohio 43215. 21 EXAMINER ADDISON: Thank you, 22 Mr. Lindgren. 23 Mr. Barker, if you would just like to 24 state your name and address for the record. 25 MR. BARKER: Michael Barker, doing 5 1 business as ComEx Transport, 6248 Socialville-Foster 2 Road, Mason, Ohio. 3 EXAMINER ADDISON: Thank you very much, 4 Mr. Barker. 5 Okay. With that being said, is Staff 6 ready to proceed this morning? 7 MR. LINDGREN: We are, your Honor. 8 EXAMINER ADDISON: Thank you. 9 MR. LINDGREN: Thank you. The Staff 10 calls Trooper W.D. Wilson to the stand. 11 EXAMINER ADDISON: If you could please 12 raise your right hand. 13 (Witness sworn.) 14 EXAMINER ADDISON: Thank you. You may be 15 seated. 16 - - - 17 WILLIAM DAVID WILSON 18 being first duly sworn, as prescribed by law, was 19 examined and testified as follows: 20 DIRECT EXAMINATION 21 By Mr. Lindgren: 22 Q. Good morning, sir. 23 A. Good morning. 24 Q. Could you please state your full name for 25 the record. 6 1 A. William David Wilson. 2 Q. And what is your business address? 3 A. 950 Rombach Avenue, Wilmington, Ohio 4 45177. 5 Q. Thank you. And where are you employed? 6 A. The Ohio State Highway Patrol. 7 Q. What is your position there? 8 A. I am a State Trooper also assigned to the 9 Licensing and Commercial Standards Section to enforce 10 Part 49 of the Code of Federal Regulations. 11 Q. All right. And how long have you been in 12 that position? 13 A. I've been with the Highway Patrol for 14 almost 26 years, and I've been assigned to the 15 Licensing and Commercial Standards Section for about 16 13 years. 17 Q. What does the Licensing and Commercial 18 Standards Section do? 19 A. We are charged with enforcing rules and 20 regulations for movement, safe movement of truck 21 traffic across the state, to include buses, motor 22 coaches, church buses, school buses, and semi 23 tractor-trailers within the state of Ohio. 24 Q. Thank you. So do you inspect commercial 25 motor vehicles on a regular basis? 7 1 A. Yes, sir, I do. 2 Q. Thank you. What sort of training have 3 you received for this position? 4 A. I went through NAS, North American 5 Standards, Part A and B, in I believe it was 2004, 6 where I received my certification. It was a two-week 7 program for each part, based upon logbooks, vehicle 8 equipment and maintenance, and also the hazmat was 9 another -- hazardous materials inspections was 10 another two weeks. 11 Q. Thank you. Do you hold any 12 certifications? 13 A. Yes, sir, I do. 14 Q. And can you explain what they are? 15 A. The North American Standards Part A and 16 B. With that -- what that entails is being certified 17 in the inspection process for Commercial Vehicle 18 Safety Plan which is the safe movement with and in 19 respect to the equipment and maintenance, driver log 20 violations, and hazardous materials. 21 Q. Thank you. Are you familiar with the 22 regulations that pertain to brakes on commercial 23 motor vehicles? 24 A. Yes, sir, I am. 25 Q. Thank you. Do you recall inspecting a 8 1 vehicle offered by the Respondent in this case, 2 Michael Barker, on August 12th of 2016? 3 A. Yes, sir. 4 Q. And where did that inspection take place? 5 A. At the Wilmington North Weigh Station on 6 Mile Post 49 on Interstate 71. 7 Q. And was that within the state of Ohio? 8 A. Yes, sir. 9 Q. Thank you. Do you recall what prompted 10 you to undertake this inspection of his vehicle? 11 A. Yes, sir. There was a -- we have a 12 transponder posted prior to the weigh station that 13 lets us know PrePass as to whether or not the safety 14 rating, it doesn't necessarily mean they have a bad 15 safety rating, but every so often it allows for the 16 truck to be pulled in if it's on what we call a "fail 17 safe." 18 Say 5 percent out of every 100 times that 19 he would go through the transponder, 5 percent of the 20 time he would be pulled around or subject to being 21 pulled around. In other words, he would have to pull 22 into the weigh station, or she, whomever the driver 23 is. In that case that's how I met him at that point. 24 Q. Thank you. Do you recall if you 25 discovered any violations of the safety regulations 9 1 during this inspection? 2 A. Yes, sir, I did. 3 Q. Do you recall what they were? 4 A. It was just a -- an air leak through a 5 vent hole on a brake chamber which was on the right 6 front steer axle. 7 Q. Was this a visual inspection? 8 A. Yes. I started out with introducing 9 myself to the driver; obtaining paperwork and 10 information. And then upon doing my walk-around 11 inspection which we call a Level 2, a walk-around 12 inspection, is when I noticed the air leaking from 13 the brake chamber. It's a visual and I can feel and 14 hear it. 15 Q. You said you heard the air coming out? 16 A. Yes. 17 Q. Did you also feel with your hand? 18 A. Yes, sir. I actually removed my glove. 19 Q. Thank you. And was the hole also 20 visible? 21 A. No. It -- what happened was there are 22 vent holes that are manufactured in the brake 23 chamber, itself, air service holes to allow if water 24 gets in or anything like that. Then there's a 25 diaphragm, a bladder inside there that's made for 10 1 compression against the spring to activate that 2 brake. 3 It's not normal for air to escape out of 4 any brake chamber. Thus, I don't -- I didn't -- at 5 first I didn't know where it was coming from. I had 6 to listen again. 7 Upon his application of the brake, that's 8 when I could feel and hear it is whenever I removed 9 my glove and could feel the -- I could actually put 10 my finger on it and stop the air from coming out. 11 It's just a -- it's a manufactured hole that is 12 already there, but it lets me know that there is 13 something wrong with the rubberized material inside; 14 either it's over-rolled itself or there's a hole in 15 it or a crack or something in that rubber. 16 Q. Thank you. So is that a violation of the 17 federal safety regulations then to have this leak? 18 A. Yes, sir, it is. It's not an 19 out-of-service issue, which I later did, I had him 20 pump his brakes down, et cetera, beforehand, to check 21 other things. And then I had him hold pressure on 22 the brake to, again, I wanted to make sure that he 23 wasn't losing air pressure. So he wasn't losing any 24 air pressure, but he did have that hole, something -- 25 something that wasn't normal which would thus be a 11 1 defect in the manufacturing, or something had 2 happened almost like a tire leaking or something of 3 that nature. However, not being out of service 4 because he was able to maintain his air pressure, but 5 it is a defect, yes, sir. 6 Q. Thank you. Did you prepare a report that 7 reflects the results of your inspection of the 8 vehicle driven by Michael Barker? 9 A. Yes, sir, I did. 10 Q. Thank you. 11 MR. LINDGREN: May I approach the 12 witness? 13 EXAMINER ADDISON: You may. 14 MR. LINDGREN: Let the record reflect 15 that I am handing the witness what I have marked for 16 identification as Staff Exhibit 1. 17 EXAMINER ADDISON: It will be so marked. 18 (EXHIBIT MARKED FOR IDENTIFICATION.) 19 Q. Trooper Wilson, do you recognize this 20 document? 21 A. Yes, sir. It's a copy of my original 22 inspection. 23 Q. And did you prepare this report yourself? 24 A. Yes, sir. 25 Q. And was it done at the time or shortly 12 1 after you conducted the inspection? 2 A. Yes, sir, at the time of my inspection. 3 Q. Thank you. Does this report appear to 4 have been altered in any way since you entered the 5 information? 6 A. It's not altered. It's not -- but it's 7 not my original inspection. But it's not altered, 8 no. The information is not, no. 9 Q. Thank you. Does it accurately reflect 10 the results of your inspection of this vehicle? 11 A. Yes, sir. 12 Q. Thank you. 13 Does it note any violations? 14 A. Yes, sir, it does. 15 Q. And can you explain the violation? 16 A. It states basically what I had explained 17 about "Brakes (general)." I placed it under "Brakes 18 (general)." The tractor -- "TRAC" refers to tractor. 19 Right front would be the passenger side front chamber 20 is leaking air through the air service hole. 21 Possibly a ruptured diaphragm. 22 I only have so many characters I can put 23 in there in that description at that time; they've 24 modified it now. But I was able to just get enough 25 information in there. 13 1 And I explained that to him, I don't know 2 if the diaphragm was ruptured, per se. But, 3 obviously, something was wrong to indicate there was 4 a leak. 5 Q. Thank you. What did you do with this 6 report after you entered the information? 7 A. I printed off a copy and gave it to 8 Mr. Barker, and then the other one was forwarded to 9 the Public Utilities Commission of Ohio. 10 Q. Thank you very much. So was that the 11 only violation that you noted on this report? 12 A. Yes, sir. 13 Q. Thank you. 14 MR. LINDGREN: Thank you. I have no 15 further questions at this time. 16 EXAMINER ADDISON: Thank you, 17 Mr. Lindgren. 18 Mr. Barker, do you have any questions for 19 this witness? 20 MR. BARKER: Sure. 21 - - - 22 CROSS-EXAMINATION 23 By Mr. Barker: 24 Q. Okay. You've already gone over your 25 experience and everything. 14 1 A. Yes, sir. 2 Q. And then also I was going to ask you why 3 I was pulled in, but you explained that, so I 4 appreciate that. 5 At the -- well, I'll go into that later. 6 But the day of the inspection, it was in 7 August, it was about 90-something degrees. When you 8 inspected the truck, did you have me shut it off? 9 A. I'm sorry? 10 Q. Did you have me shut the truck off? 11 A. At one point -- 12 Q. When you were doing the inspection, 13 looking for the air leak, did you have me shut the 14 truck off so that you could actually hear an air 15 leak? 16 A. No, I don't recall having you shut the 17 truck off, no, sir. 18 Q. Okay. Well, it wasn't shut off. And my 19 air conditioning -- the day of the inspection it was 20 like 90 degrees, so my truck was running with the air 21 conditioning on. 22 EXAMINER ADDISON: Mr. Barker, I'm sorry 23 to interrupt, but -- 24 MR. BARKER: Okay. I'm sorry. 25 EXAMINER ADDISON: -- you'll have the 15 1 opportunity to testify -- 2 MR. BARKER: Oh, okay. 3 EXAMINER ADDISON: -- and provide a 4 statement. This is just merely -- 5 MR. BARKER: Oh, okay. 6 EXAMINER ADDISON: -- asking the witness 7 questions. 8 MR. BARKER: Just asking him questions. 9 EXAMINER ADDISON: Exactly. 10 MR. BARKER: Okay. 11 Q. (By Mr. Barker) And then you checked for 12 the air drop before and everything was fine with 13 that. You checked all my paperwork. You did open 14 the hood and then you determined that there was an 15 air leak. 16 When we did this inspection -- only once, 17 like when you apply the brakes, you apply them once, 18 you just don't constantly keep applying them. Well, 19 that day, you had me apply them numerous times which 20 is not the norm. 21 A. Yes, sir. Do you want me to answer that? 22 Q. Yes, please. 23 A. I did. For the intent when I -- I don't 24 know if you recall, when I do my walk-around 25 inspection, I do it the same way every time. I start 16 1 -- I check for your fire extinguisher, safety 2 triangles. I have you activate your horn and 3 windshield wiper. 4 Q. Correct. 5 A. I have you pump your brake down numerous 6 times to ensure that the -- the pressure is not -- 7 well, it needs to drop to 60 for the low-air warning 8 device to come on. If it goes below 60, obviously 9 that's a violation. That's what I check for the 10 first time. 11 Then I go up over the hood, check all 12 your lighting, everything. I have you turn your 13 wheel to the left, see if there's a -- I have you hit 14 the brakes. I want to ensure that the brake calipers 15 are touching the drums or discs or however it may be. 16 Walk around, continue my inspection. 17 Upon doing the right side of that, that's when I 18 noticed the air leak. When you pumped that brake 19 down, I had you crank the wheel to the right side 20 which is the passenger side for me, and I -- then I 21 could hear that leak. I had you hit it again, and 22 hit it again, because that's when I felt it. That is 23 when I popped your hood. 24 Normally, on a walk-around inspection, I 25 have no need to pop the hood unless I feel something 17 1 is indicated at that point. 2 Q. Okay. 3 A. So that was the reason. 4 Q. Okay. The truck was running, though, 5 with the air conditioning on. 6 A. Yes, which means you're -- 7 Q. And you do realize that when the truck is 8 running, there's extreme heat generated and the fan 9 clutch will kick in and out, and that is air 10 actuated. 11 A. Yes, sir. 12 Q. And you will hear air from that. 13 A. Yes, sir. 14 Q. I contend there's no way that you could 15 have heard air from, you know, the brake chamber. 16 For one thing, it wasn't leaking. The air that you 17 heard was from either the air compressor or the air 18 fan. 19 EXAMINER ADDISON: Mr. Barker -- 20 MR. LINDGREN: Objection. 21 EXAMINER ADDISON: Thank you, 22 Mr. Lindgren. 23 Yeah. If we could just limit it to 24 questions for right now -- 25 MR. BARKER: Okay. All right. 18 1 EXAMINER ADDISON: -- then you'll be able 2 to -- 3 MR. BARKER: Okay. 4 EXAMINER ADDISON: -- explain a little 5 further. 6 Q. (By Mr. Barker) Okay. After -- after we 7 even determined we had an air leak, you know, did you 8 have me shut the truck off so that we could pinpoint 9 this air leak? 10 A. You know, and I question myself about 11 that. I don't believe I brought you over there to do 12 that. It was a pretty laid-back, friendly contact. 13 Q. Yeah, it was. I appreciate that. 14 A. And I don't recall, and normally I do, 15 I'll pinpoint and explain to the driver what I found. 16 And I don't think -- I don't think that I took you up 17 there. I think you pretty much took me at my word 18 that day that that's what I had found. 19 Q. But -- 20 A. No, I didn't have you shut the truck off 21 at all. 22 Q. Right. 23 A. I don't recall ever doing that. 24 Q. Right. 25 A. Because I do remember it being hot and I 19 1 thought -- and I remember I even said to you, "Keep 2 your truck running so you don't burn up out here." 3 Q. Uh-huh. Right. 4 A. Yeah. 5 Q. But normally, if you're looking for an 6 air leak, you will shut it off and that way you can 7 definitely pinpoint where it's coming from. 8 A. Is that a question? 9 Q. Well, it's a statement. I'm sorry. I'm 10 not familiar with the procedure of asking -- 11 A. If you're asking me. No, sir, I don't; 12 I'm pretty good. 13 MR. BARKER: Okay. That's pretty much it 14 then as far as . . . 15 EXAMINER ADDISON: Thank you, Mr. Barker. 16 MR. BARKER: Thank you. 17 EXAMINER ADDISON: I have just a few 18 clarifying questions -- 19 THE WITNESS: Yes, ma'am. 20 EXAMINER ADDISON: -- if you'll indulge 21 me. 22 THE WITNESS: Yes, ma'am. 23 EXAMINER ADDISON: You noted that this 24 makes some kind of noise when there is air coming out 25 from this area. Is it a distinctive noise? 20 1 THE WITNESS: Yes, ma'am. It's a -- it's 2 a hiss. Almost a snake, "ssssssss." As he's hitting 3 that brake it's very strong, and I will demonstrate 4 it, "ssssssss." And it almost whistles because it's 5 coming through a hole that's about 3/16 of an inch in 6 diameter. It's a very small service hole for that 7 diaphragm for water to leak out of. So I can 8 distinctly hear it. 9 When I hear that, it either tells me 10 there's a sliver leak in the -- in the -- on a spring 11 brake chamber there's a clamp; sometimes those clamps 12 come loose. So I thought well maybe there's a clamp 13 loose at first. Well, that wasn't the case. I was 14 able just to literally put my finger over it and it 15 was done. 16 Now, I will digress to Mr. Lindgren about 17 how things may have occurred upon having a mechanic 18 diagnose it. But, at that point in time, yes, there 19 was air coming out. I could distinctly feel it and 20 hear it. 21 EXAMINER ADDISON: Thank you. 22 And how did you determine if the 23 diaphragm was, in fact, ruptured? Is that something 24 that you can do -- 25 THE WITNESS: That is something -- 21 1 EXAMINER ADDISON: -- during the 2 inspection? 3 THE WITNESS: No, ma'am, I can't. And 4 that's what I had explained to him, I don't know, 5 either it had rolled over, that can happen; there can 6 be a crack in there; that bladder that sits around 7 that may not always make contact. And I told him, I 8 had written it up, and I explained to him just to get 9 it checked out and make sure that it's okay. 10 You know, because something like that, if 11 there's a potential on a steering -- on a steer axle, 12 if that brake does go bad and it doesn't activate 13 that pushrod, that's an immediate out-of-service 14 violation on a steer axle. 15 Other cases they're able to lose a brake 16 on the drive or the tandem, on the trailer tandem, so 17 they can lose a brake and it's not an out-of-service 18 issue, even though it's a critical inspection item. 19 In this case, something like that can lead to a 20 critical inspection item, but at this point it 21 wasn't, and I explained that to him, to Mr. Barker. 22 EXAMINER ADDISON: Thank you. I 23 appreciate that. Those are all my questions. You 24 are excused. 25 Mr. Lindgren. 22 1 MR. LINDGREN: Well, thank you, your 2 Honor. Mr. Barker and I have stipulated that the 3 Staff is seeking a zero-dollar forfeiture in this 4 case. So, if you'll allow me, I'd like to offer into 5 evidence the Notice of Preliminary Determination as 6 Staff Exhibit 2, and that reflects the zero-dollar 7 forfeiture. 8 EXAMINER ADDISON: It will be so marked. 9 (EXHIBIT MARKED FOR IDENTIFICATION.) 10 EXAMINER ADDISON: Thank you very much. 11 MR. LINDGREN: Thank you. 12 And, with that, the Staff rests its case. 13 EXAMINER ADDISON: Thank you, 14 Mr. Lindgren. Would you like to move these exhibits 15 into evidence? 16 MR. LINDGREN: Yes, your Honor. I move 17 for the admission of Staff Exhibits 1 and 2. 18 EXAMINER ADDISON: Thank you. 19 Mr. Barker, do you have any objections to 20 these exhibits being admitted into evidence? 21 MR. BARKER: No. 22 EXAMINER ADDISON: Thank you, Mr. Barker. 23 They will be admitted. 24 (EXHIBITS ADMITTED INTO EVIDENCE.) 25 EXAMINER ADDISON: Mr. Barker, at this 23 1 time I would invite you to the stand. And like I 2 said, if you have any documents or photographs, 3 anything of that nature that you would like to bring 4 up to the stand with you, feel free to do so. 5 Okay. You can come over here and have a 6 seat. I'll swear you in really quickly. Raise your 7 right hand. 8 (Witness sworn.) 9 EXAMINER ADDISON: Thank you. Please be 10 seated. Mr. Barker, you can start with your 11 statement any way that makes you feel more 12 comfortable. Maybe just provide a quick overview of 13 the day and then a little more detail. 14 MR. BARKER: Okay. 15 EXAMINER ADDISON: I know you had a few 16 points that you'd like to raise. 17 MR. BARKER: Right. Okay. 18 - - - 19 MICHAEL BARKER 20 being first duly sworn, as prescribed by law, was 21 examined and testified as follows: 22 DIRECT TESTIMONY 23 MR. BARKER: To begin with, I have over 24 42 years' experience owning my own truck and 25 maintaining it. I've had -- for the past 16 years, 24 1 I've had my own authority. I'm a single, you know, 2 one truck operation. And I do a very good job. I 3 maintain my equipment. I operate as safely as I can. 4 And even -- even as a child I've been involved in 5 this business. When -- my father was in this 6 business all of his life, and at 5-years-old I used 7 to go with my dad. 8 But, anyway, getting back to the day of 9 the inspection. As we said, it was 90. The truck 10 was never shut off. To determine if there's an air 11 leak, to be positive, you know, not "I think it's 12 this," it should have been shut off and checked. 13 And also, typically you will apply the 14 brake one time and it will show, you know, a leak or 15 whatever. That wasn't the case when this was done. 16 I had to constantly pump it. And I have an air 17 pressure gauge on there. It's called a "brake 18 application gauge" and there's a red zone on it. 19 The only way that we could get any kind 20 of an air leak out of it or what he thought was an 21 air leak was to go beyond the red zone on it. That 22 is not a normal brake application. That's -- when 23 you get into that, that's like if you're coming down 24 a mountain with a heavy load on it and you're making 25 an extreme panicked stop. But in the normal range, 25 1 it did not leak and would not leak. 2 And as I said before, I really and truly 3 think that what he heard was the air compressor and 4 the air clutch kicking in. 5 And when you apply extreme pressure like 6 that -- I just bought a new trailer and actually a 7 new truck and they have rollover protection and the 8 ABS valves. If you apply that, you could conceivably 9 damage that. That's not a normal brake application. 10 And I have pictures to show you, you know, of that. 11 But then I took the -- you know, he did 12 not put me out of service. The brakes were operating 13 okay. When I got to where I had to deliver, I got 14 out and checked and couldn't find an air leak. 15 Then immediately, when I got back home, I 16 took it to the shop that maintains my truck and told 17 them that, you know, that they found an air leak. 18 Well, he called me five minutes later. He goes, 19 "Hey, there's not an air leak." He goes, "This is 20 not leaking." He goes, "Do you really want me to 21 replace this?" 22 MR. LINDGREN: Objection. Hearsay. 23 MR. BARKER: Okay. But they told me that 24 it was not leaking. And I said, "Well, I have to 25 cross" -- I cross the 71 scales five days a week. I 26 1 run to Columbus and back to Cincinnati five days a 2 week. I said, "I have to go across that scale 3 tomorrow and I need to have it replaced because I 4 don't want to be pulled in and checked again and be 5 in violation." So they went ahead and did that. You 6 have copies there of the repair that was made. 7 EXAMINER ADDISON: And, Mr. Barker, just 8 to clarify, which documents reflect the repair? 9 THE WITNESS: Okay. The one to the left 10 is where I paid. And then also it has their comments 11 about it. And then this is after. You know, this 12 was -- this right here states that that is not the 13 proper way to check and that you could do damage 14 to, you know, to the other systems. 15 EXAMINER ADDISON: Okay. Thank you. 16 Just so the record is clear, we will be 17 marking, as Respondent Exhibit No. 1, an invoice from 18 K & M Truck, Trailer & Auto. And then what seems to 19 be, as Respondent Exhibit No. 2, a letter from K & M 20 Truck, Trailer & Auto, and it has the entire name, 21 Repair Incorporated. Just to make sure when we refer 22 to them, so. 23 (EXHIBITS MARKED FOR IDENTIFICATION.) 24 EXAMINER ADDISON: Okay. You may 25 continue, Mr. Barker. 27 1 MR. BARKER: Okay. I'm really 2 particular. I absolutely detest air leaks. When I 3 park -- my truck comes home with me every night. 4 When I park the truck, when I go out the next morning 5 and start my truck, I have no air. The air pressure 6 is 120; the same as it was when I parked it. I have 7 a gauge on there and I can tell by the -- when I'm 8 going down the road, if the air dryer is cycling 9 quite frequently, then I know that there's an issue. 10 Now, on a rough road, with air-ride 11 suspension, it will do it frequently. But even that 12 day, like I could go 20 miles before the air dryer 13 would cycle. You know, it was not leaking as I was 14 going down the road. 15 So I'm real particular about the 16 maintenance and everything on my truck. If you look 17 at the truck, I do not run retread tires. Everything 18 is state-of-the-art. And I'm thorough on the 19 maintenance; actually over and above the industry 20 standards. Typically, most people have their truck 21 serviced at 15- to 20,000 miles. Mine is done every 22 12,500 by an ASE-certified mechanic. 23 And then when I bring the truck home at 24 night, before I'm finished, I look it over quite 25 well. On the weekend, the truck is washed, and then 28 1 I go over it with a fine-tooth comb. There's no 2 doubt in my mind that brake chamber was not leaking. 3 So that pretty much covers it. 4 But one thing I do like to add. After I 5 had this inspection, I've been checked two times 6 since then. I mean, is there some kind of vendetta 7 or, you know? I know that's -- you have a copy of 8 the one inspection there, that was only a couple 9 months after that. 10 And then, like, two weeks later I was 11 pulled over again. And it's kind of uncommon to be 12 pulled over in a three-month period three times, 13 like. It may seem funny to you, but it doesn't to 14 me. I've been pulled over three times and checked. 15 EXAMINER ADDISON: Just so the record is 16 clear, we're going to be marking the inspection 17 report, dated November 11th, 2016, as the report -- 18 MR. BARKER: Right. 19 EXAMINER ADDISON: -- that you referenced 20 in your testimony. 21 MR. BARKER: Yeah. And two weeks later, 22 I was pulled over again, and I have a copy of that, 23 and I showed him, and he goes, "Oh, you were just 24 inspected," he goes, "okay." Then I went on. So a 25 report wasn't filled out for that, but it's kind of 29 1 odd. 2 EXAMINER ADDISON: Thank you, Mr. Barker. 3 And that will be Respondent Exhibit No. 3. 4 (EXHIBIT MARKED FOR IDENTIFICATION.) 5 MR. BARKER: One other thing. I did go 6 to three other facilities and outlined the procedure 7 that was done on that inspection. I went to Star 8 Leasing in Fairfield, Ohio; Kenworth of Cincinnati; 9 and Trail Lines which all do work on my equipment. 10 They said that is not the way the procedure, you 11 know, hitting the pedal five or six times will, you 12 know, is not the proper way to check that. 13 EXAMINER ADDISON: Thank you, Mr. Barker. 14 Does that conclude your statement? 15 MR. BARKER: Yes. 16 EXAMINER ADDISON: Thank you. 17 Mr. Lindgren, do you have any questions? 18 MR. LINDGREN: Just briefly, your Honor. 19 - - - 20 CROSS-EXAMINATION 21 By Mr. Lindgren: 22 Q. Mr. Barker, the invoice that you 23 introduced as an exhibit -- 24 A. Yes. 25 Q. -- it refers to the right steer axle 30 1 brake chamber, but it doesn't identify that as the 2 right front chamber, does it? 3 A. The steer axle would be the right front; 4 the steering, the steering axle. 5 Q. Is it not possible that the invoice is 6 referring to another chamber? 7 A. No. 8 Q. Well, we don't actually know if it was on 9 the driver side or the passenger side that this 10 repair shop looked at, do we? 11 A. No, it's the right front. It says right 12 on there; right front steering. 13 Q. But that could have been from either the 14 perspective of the driver inside the vehicle or from 15 somebody standing in front of it, right? Which side 16 is left and which side is right -- 17 A. When you're sitting in the truck -- when 18 you're sitting in the truck, it would be the right 19 front which is what the Trooper wrote up; the right 20 front. 21 MR. LINDGREN: All right. Thanks. 22 I have no further questions. 23 EXAMINER ADDISON: Thank you, 24 Mr. Lindgren. 25 Mr. Barker, how long has this company, 31 1 K & M Truck, Trailer & Auto Repair Incorporated been 2 maintaining your vehicles? 3 MR. BARKER: About two years. 4 EXAMINER ADDISON: Two years? 5 MR. BARKER: Uh-huh. 6 EXAMINER ADDISON: Are they a fairly new 7 company, do you know? 8 MR. BARKER: No. They've been in 9 business a long time. 10 EXAMINER ADDISON: Thank you. 11 MR. BARKER: And they operate -- actually 12 they operate -- they have their -- they actually 13 operate their own trucking fleet, also, with about 50 14 or 60 trucks. 15 EXAMINER ADDISON: Thank you. I believe 16 that's all the questions I had. You're excused, 17 Mr. Barker. 18 MR. BARKER: Thank you. 19 EXAMINER ADDISON: Mr. Lindgren. 20 MR. LINDGREN: Your Honor, I -- Staff 21 objects to the admission of Staff -- Respondent's 22 Exhibits 1 and 2. The preparer of those exhibits is 23 not available for cross-examination, so I object to 24 them on authenticity grounds and as well as hearsay 25 grounds. 32 1 EXAMINER ADDISON: Mr. Barker, do you 2 have any other information stating that these 3 documents were, in fact, produced by K & M Truck, 4 Trailer & Auto Repair Incorporated? 5 MR. BARKER: As to whether or not they 6 did -- 7 EXAMINER ADDISON: Did, in fact, create 8 these documents. 9 MR. BARKER: I could -- there's a phone 10 number on there. If you would like to call them, I'm 11 sure they would verify that. Or I could call them. 12 EXAMINER ADDISON: And at any point did 13 you inquire whether Mr. Dwayne Jones, who is 14 referenced in -- on Respondent Exhibit No. 2, if he 15 would be available today for cross-examination? 16 MR. BARKER: The only thing I could do is 17 call him. 18 EXAMINER ADDISON: Okay. Your objection 19 is noted, Mr. Lindgren, but we will go ahead and 20 admit Respondent Exhibits No. 1, 2, and 3. The 21 Commission can certainly take into consideration that 22 no one representing K & M Truck, Trailer & Auto 23 Repair Incorporated was here for cross-examination 24 this morning and give this evidence the appropriate 25 weight it deserves. 33 1 MR. LINDGREN: Thank you. 2 (EXHIBITS ADMITTED INTO EVIDENCE.) 3 EXAMINER ADDISON: Is there anything else 4 that we need to address before providing closing 5 statements this morning? 6 MR. LINDGREN: Nothing, your Honor. 7 EXAMINER ADDISON: Okay. 8 Mr. Lindgren, would you care to go first? 9 MR. LINDGREN: Yes. Thank you. 10 Your Honor, the Staff introduced the 11 witness of a veteran State Trooper who was thoroughly 12 familiar with the Federal Motor Carrier Safety 13 Regulations, including those that apply to brake 14 systems on commercial motor vehicles. 15 He testified that he did inspect this 16 vehicle and observed the -- one of the brake lines 17 leaking. He both felt it with his hand and heard a 18 sound coming out. He said this is a very distinctive 19 sound that doesn't come from anything else. That was 20 an obvious safety violation that he observed and he 21 noted it and directed the driver to get it -- get it 22 checked out. 23 Brake systems are obviously very 24 important for the safety of a vehicle. If the brake 25 would continue to get worse and fail, it could have 34 1 catastrophic consequences on the highway, resulting 2 in injuries or even fatalities, so it's very 3 important that these regulations be enforced. Thank 4 you. 5 EXAMINER ADDISON: Thank you, 6 Mr. Lindgren. 7 Mr. Barker 8 MR. BARKER: As I stated, I've been doing 9 this also a long time, and I appreciate the work that 10 they do, and I adhere by the rules. But, in this 11 case, the brake chamber, in my opinion, was not 12 leaking, and in the repair shop's opinion. And if 13 you look back on my records, I maintain my equipment 14 meticulously. And I definitely disagree, it was not 15 a defective brake chamber. 16 EXAMINER ADDISON: Thank you all very 17 much. At this time we will go ahead and submit the 18 evidence collected here today for the Commission's 19 consideration of this case. And if there's nothing 20 further, we are adjourned. 21 (Thereupon, at 10:40 a.m., the hearing 22 concluded.) 23 - - - 24 25 35 1 CERTIFICATE 2 I do hereby certify that the foregoing is a 3 true and correct transcript of the proceedings taken 4 by me in this matter on Tuesday, February 21, 2017, 5 and carefully compared with my original stenographic 6 notes. 7 8 _______________________________ Carolyn M. Burke, Registered 9 Professional Reporter, and Notary Public in and for the 10 State of Ohio. 11 My commission expires July 17, 2018. 12 - - - 13 14 15 16 17 18 19 20 21 22 23 24 25