Bill Mongelluzzo | Nov 12, 2010 9:33AM EST
There is only a "slim" chance the appellate court handling the Port of Los Angeles clean-truck case will agree with U.S. District Court Judge Christina Snyder's definition of the port as a market participant, according to a Long Beach attorney.
Cameron Roberts, a transportation attorney, told the Harbor Transportation Club of Southern California the U.S. Court of Appeals for the 9th Circuit took this same case on appeal almost two years ago and indicated at the time that the port's claim to be a market participant and therefore exempt from federal preemption law was weak.
The case of the American Trucking Associations versus the city and Port of Los Angeles has captured the attention of the transportation industry because it has national implications for harbor trucking, trucking deregulation and the independent contractor status of owner-operators.
The Port of Los Angeles, with the support of the Teamsters union and a number of environmental and community groups, is seeking regulator authority over harbor trucking companies. ATA, with the support of shipper and carrier organizations, charges that the port's attempt to enforce certain concession requirements on drayage companies wishing to operate at the port violates federal preemption law.
Federal preemption law prohibits state and local entities from regulating the rates, routes and services of motor carriers engaged in interstate commerce. Judge Snyder agrees that federal preemption law plays an important role in this case, but she ruled Aug. 26 that the Port of Los Angeles falls under the market participant exception to federal preemption law.
Roberts said Judge Snyder defines Los Angeles as being in the market of port services. That is, Los Angeles is competing against other North American ports for cargo and is attempting to enforce certain concession requirements, including an employee-driver mandate for motor carriers, as part of a business plan. A market participant is exempt from federal preemption law if it is acting as a business rather than as a regulator, and is attempting to protect its business interests.
If Los Angeles is allowed to implement its employee-driver mandate requiring that harbor trucking companies hire drivers as direct employees, those companies could be open to organizing by the Teamsters. Currently, most harbor truck drivers across the nation are owner-operators, and are classified as independent contractors, who, by law, can not be unionized.
Roberts said that when this case first went to the 9th Circuit on appeal in 2009, the appellate court defined the market as the drayage services market and indicated that since the port does not procure trucking services, it is not a market participant.
Therefore, when the 9th Circuit again takes up the case next year, the issue will be, does the Port of Los Angeles operate in the port services market or the harbor drayage market?
"That's the whole issue. That's what everyone is arguing about," Roberts said.
-- Contact Bill Mongelluzzo at bmongelluzzo@joc.com.
