Bill Mongelluzzo | Mar 09, 2011 3:31PM EST
The two organizations that have wrestled over the unionization of harbor drayage companies for the past few years promised attendees at the 11th annual Trans-Pacific Maritime Conference in Long Beach to expect the battle to continue in 2011.
"The Teamsters and our coalition partners aren't going away," said Fred Potter, director of the Teamsters port division.
"We're not going away either," said Curtis Whalen, executive director of the intermodal conference of the American Trucking Associations.
Most of the harbor truck drivers at U.S. ports are owner operators. Antitrust law prohibits unions from organizing these independent contractors. The Teamsters and their environmental partners believe the drivers are misclassified as independent contractors, while the trucking industry says the independent contractor classification is accurate.
Potter and Whalen agreed that the legal and legislative battles in 2011 will focus on driver classification. Potter cited a National Employment Law Project study he said proves, based on academic studies, that drivers are being misclassified.
Whalen responded that numerous challenges before the courts and federal agencies have reaffirmed the correctness of the independent contractor classification of drivers.
Federal preemption law is a key issue in a lawsuit filed by the ATA against the Port of Los Angeles clean-truck concession program. That suit has bounced back and forth between the U.S. District Court in Los Angeles and the U.S. Court of Appeals for the 9th Circuit in San Francisco.
ATA charges that Los Angeles is prohibited from mandating that drayage companies hire drivers as direct employees because the federal government has jurisdiction over motor carriers engaged in interstate commerce. Los Angeles and its allies contend that the port is exempt from federal preemption law because it is a market participant.
The 9th Circuit is expected soon to set a date for oral arguments. The case could be heard in late spring or summer, although the decision will most likely be appealed to the Supreme Court, Whalen said.
In addition to the legal battles, the Teamsters have mounted a legislative effort in California and in Congress. Potter said these efforts aim at improving the livelihood of port truck drivers. Studies have shown that owner operators earn on average $28,783 a year and yet are saddled with large monthly payments on the new trucks they must purchase in order to comply with clean-truck programs at ports, he said.
The Teamsters believe that a model based on company-owned trucks with employee drivers will promote efficiency and stability for trucking companies while ensuring middle-class wages for drivers. "We know there is a better way," Potter said.
The trucking industry said the issue centers on choice. Harbor trucking companies should be able to choose either the independent contractor or employee driver model. Forcing the employee driver model on the industry is illegal, Whalen said.
Harbor truckers also note that in a competitive industry where margins are so thin, they can not absorb the higher costs of employee drivers wile adjusting to regulatory issues they face this year such as possible hours of service limitations, a new chassis regime, roadability equipment rules and federal safety regulations for companies and drivers. "This is a very challenging year," Whalen said.
-- Contact Bill Mongelluzzo at bmongelluzzo@joc.com.