From SCDigest's On-Target E-Magazine
May 19 , 2011
Logistics News: Efforts to Unionize Drayage Drivers Continues, as California Assembly Prepared to Pass Law Effectively Eliminating Independent Drivers from State Ports
Teamsters Efforts Are "Dogged," ATA's Whalen says; Law would be Challenged if Passed under Same Arguments as LA Clean Truck Program Legal Battles
SCDigest Editorial Staff
The multi-year battle over drayage drivers at California ports took another turn last week as a bill in the state that would effectively ban independent owner-operators from operating drayage trucks at the state's ports passed a key committee and appears headed for passage in the state assembly.
Given that some 80-90% of port drayage drivers are believed to be independents, eventual passage of such a law could have a big impact on costs and other issues in moving containers from ports to import warehouses and transloading facilities.
California assembly bill AB 950 (the Truck Driver Employment and Public Safety Protection Act) would deem drayage truck operators to be statutory employees for employment purposes of the firms hiring them to move the containers.
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| This specific bill cannot be seen in isolation, but rather as part of a multi-pronged effort to get the Teamsters union into port operations not only in California but other areas of the country as well. |
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Specifically, the bill:
(1) Provides that for purposes of state employment law (including workers' compensation, occupational safety and health, and retaliation or discrimination) a drayage truck operator is an employee of the entity or person who arranges for or engages the services of the operator.
(2) Defines "drayage truck operator" as the driver of any vehicle with a specified gross vehicle weight rating operating or transgressing through port or intermodal rail yard property for the purpose of loading, unloading, or transporting cargo.
A full description of AB 950 can be found here: Analysis of the Truck Driver Employment and Public Safety Protection Act.
The bill is sponsored by Assembly Speaker John Perez (D-Los Angeles) and Assemblyman Sandre Swanson. Perez is a former labor organizer.
The bill would in effect eliminate the now dominant independent drayage trucks from working California's ports. In turn, this would lead to larger trucking firms controlling drayage operations, firm which might currently be unionized, or be targets for unionization efforts not possible with the current dominance of independent drayage operators.
The bill is expected to pass the full Assembly now that it is out of committee, with a vote expected imminently. A similar bill would then have to pass the also Democrat-controlled state Senate, and then signed into law by Governor Jerry Brown.
This specific bill cannot be seen in isolation, but rather as part of a multi-pronged effort to get the Teamsters union into port operations not only in California but other areas of the country as well. The most notable is the union-backed measure called the Clean Ports program at the port of Los Angeles, which under the banner of improving air quality through regulation of drayage trucks would have effectively eliminated most independent drivers from operating there. Many observers think the program has little to do with the environment, and all to do with eventual unionization. (See Port of LA, Clean Trucks, Owner-Operators, and You.)
In June, the federal 9th Circuit Court of Appeals in California will hear the American Trucking Associations' (ATA) appeal of a trial judge's ruling last August that said the program can go forward. The ATA argues that allowing the port to regulate trucking is not legal because a local regulator cannot supersede federal law that govern freight transportation. If such authority were allowed, shippers and truckers would have to deal with a patchwork of local regulations across the country, putting a big hit on transportation effectiveness and raising costs substantially.
"When it comes to port operations, you are not only talking about general freight transportation, but the flow of international trade," Curtis Whalen, head of the ATA's intermodal council, told SCDigest this week.
The trial judge who ruled in favor of the port in August also accepted the ATA's motion for an injunction against the program being put into place awaiting the Appeal's court ruling, acknowledging that her reasoning in the case to decide in favor of the port was "novel."
The California bill would accomplish much the same result if ultimately passed. There is also legislation supporting such local trucking regulation in the name of environmentalism floating around the Capitol in Washington DC.
"If these efforts in California are successful, you can expect many more such local actions across the country," Whalen added. He also said that while the bill is almost certain to pass the Assembly, in part because the Assembly Speaker is the co-sponsor, its fate in the Senate there is less certain, as opposition to the bill grows.
(Transportation Management Article Continued Below)
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Whalen also said even if it does pass, it would be challenged in court on largely the same grounds that the Clean Trucks program has been challenged, namely that local authorities cannot trump federal regulation of the trucking industry and interstate commerce law.
