As the Teamsters try to organize independent container haulers at U. S. seaports, lawyers are focusing on the key issue of how much control harbor trucking companies have over the drivers.
Attorneys who represent drivers have discovered that many trucking company contracts, especially those on the East Coast, have an exclusivity clause that prohibits owner-operators from driving for other carriers. They believe this could be enough for the courts and the National Labor Relations Board to classify the drivers as direct employees of trucking companies.
If it is determined that owner-operators are direct employees rather than independent contractors, trucking companies would be responsible for paying social security and state disability taxes. Also, unions are generally prohibited from organizing independent contractors because of antitrust implications, but they are free to attempt to organize employees.
The Teamsters in late 1999 announced a national organizing effort among harbor truck drivers. Two weeks ago, the union sponsored rallies in Jacksonville, Fla. ; Savannah, Ga. ; Charleston, S. C. ; Baltimore; Boston and Detroit. This week, Teamster rallies are scheduled again for those cities, as well as Houston, Los Angeles-Long Beach and Seattle-Tacoma.
Harbor drivers also demonstrated last week in New York-New Jersey. That rally apparently started in response to the spike in diesel prices, but the Teamsters jumped in to lend support.
With diesel prices having doubled since last summer, and trucking rates at container ports under downward pressure because of intense competition in the industry, drivers are receptive to organizing, said Jim Stewart, an owner-operator in Savannah.
“This is the biggest push I’ve ever seen. Everyone wants to go union, ” said Stewart, who has been a truck driver since the late 1960s.
Attempts over the last 20 years by the Teamsters and other unions to organize harbor drivers in Los Angeles-Long Beach and Houston failed, primarily because the courts determined that the owner-operators were independent contractors.
In the most recent case last month, a California superior court in Los Angeles ruled that owner-operators driving for two trucking companies were independent contractors. The leases stated that the drivers were not required to sign in each day, they could select any route of travel they wished, and they could turn down loads without reprisal.
“It is very significant that the plaintiffs (drivers) were not prohibited from working for other companies or for themselves, ” the three-judge panel stated in its decision.
By contrast, trucking contracts at some East Coast ports tend to be much more restrictive. Many of the companies prohibit owner-operators from driving for other motor carriers when they are under contract.
Eric M. Fink, a Philadelphia lawyer who represents drivers in Savannah, said the vast majority of trucking contracts at the Georgia port have exclusivity clauses. “That can set them up for unionization, ” Fink said.
A Washington attorney with whom the Teamsters contracted said owner-operators in a number of East Coast ports often face reprisals from trucking companies if they turn down loads. “That sounds like control to us, ” he said.
Owner-operators from Baltimore to Jacksonville say trucking companies exert significant control over drivers. “They stipulate in the lease we can not drive for anyone else. They discipline us, they manipulate us, they fire us, ” said Tony Fernandez, an owner-operator in Jacksonville.
Stewart said that in Savannah, if he turns down a load to a certain destination, trucking companies will give him an undesirable load the next time. Some companies require owner-operators to use the company fuel card and to buy insurance through the company. “It’s a vicious little circle, ” Stewart said.
In Baltimore two weeks ago, a trucking company terminated the lease of a driver who attended a Teamsters rally instead of pulling a load he’d signed up several days before the rally.
“I provided you fair warning as to the conditions you would face had you not worked on this date. Since you chose to attend the rally, I have no other choice but to terminate your lease agreement, ” a company executive stated in a Jan. 31 letter to the driver.
Greg Stefflre, a Long Beach attorney and trucking company executive, said trucking companies in Los Angeles-Long Beach and Houston learned years ago that although they require reliable contractors, they should not punish drivers for life choices. “This kind of thing looks bad for employer-employee status, ” he said.
Keith Jacoby, a Los Angeles attorney who successfully defended the companies that were found by the California court to have maintained their drivers’ independent-contractor status, said contracts should be quite specific in maintaining the independence of owner-operators.
Most importantly, the contract should state that when the truck is not in the service of the company, the driver is free to haul for other companies or for himself. “That speaks independence, ” Jacoby said.
And no matter how artfully the contract is written, it guarantees independent contractor status for drivers only if the company adheres closely to the terms of the contract, Jacoby said.
In Seattle, where owner-operators engaged in job actions last summer, trucking companies encourage drivers to haul for more than one company, said Dan Gatchet, chairman of the intermodal committee of the Washington Trucking Association. “It demonstrates their independence, ” he said.
The differences in operating and contracting practices around the country mean that drivers and the Teamsters will have to take a variety of approaches in unionization efforts, said Fink, the Philadelphia attorney. “At this point, no one has a road map, ” he said.
“It will be a slow process. It will be a long-term process, ” he added.
