Monday, March 17, 2008 – Coerced lumping is in OOIDA’s crosshairs, and a ruling last week by a federal judge increased the size of the bull’s eye on grocery distributor SuperValu Inc.

In an order filed Friday, March 14, U.S. District Judge John R. Tunheim granted a request by OOIDA and truckers to consider whether to allow thousands of truckers to include a key claim that SuperValu not only “required” owners and operators to use and pay lumpers, but also “attempted to coerce” drivers to hire lumpers.

“The Court agrees with the plaintiffs (truckers),” the judge wrote in response to OOIDA’s request that thousands of truckers be included in the class-action claim that SuperValu’s proof of insurance coverage requirements in 2005 attempted to coerce drivers to use and pay for lumping services at its docks.

“They were requiring excessive insurance coverage as a means of forcing drivers to pay for unloading services,” said Jim Johnston, OOIDA president and CEO. “That’s a clear violation of federal law.”

A trial in the case is scheduled for September this year in the U.S. District Court in Minneapolis.

OOIDA and the truckers are asking that SuperValu be forbidden from requiring or attempting to coerce truck owners and operators to have insurance in excess of federally required minimums and that it be forbidden from requiring presentation of insurance documents that are not readily available to drivers who are in compliance with federal insurance and licensing laws.

In the Friday order, the judge stated that he flatly disagreed with SuperValu’s arguments against class certification. The judge pointed out that OOIDA was not asking him to certify a claim by drivers who had actually been coerced, but rather for drivers that SuperValu attempted to coerce.

“Defendant is correct that there may be certain circumstances where drivers’ choices would not have been influenced by SuperValu’s insurance policy. But this merely indicates that attempts in those circumstances would not have been fruitful; not that the attempts did not occur,” the judge wrote.

“... In other words, the possibility of different effects on the drivers does not preclude class certification on the question of whether there was a single, company-wide ‘attempt to coerce.’ ”

The truckers’ case – filed in December 2005 – contends that a SuperValu policy that was in effect for several months in 2005 violated federal law because it forced truck owners and operators to pay for lumping services at SuperValu docks.

“A victory in this case will benefit not only the truckers who were actually charged the unloading fees, but all truckers because of the clear signal it will send throughout the industry that these types of abuses will no longer be tolerated,” said OOIDA’s Johnston.

There is also potential for the case to benefit some motor carriers because the class includes not only the truckers who were behind the wheel, but also the entities with the operating authority for those trucks.

The class for the case includes owners and operators of motor vehicles hauling property in interstate commerce who between March 28, 2005, and Dec. 22, 2005, delivered “carrier loads” to Supervalu and did not at the time of delivery have in effect the insurance then required by Supervalu as a condition to their unloading their own trucks and paid for lumpers.

Among the issues that spurred the federal class-action lawsuit were SuperValu’s requirements related to insurance, which were instituted in March 2005. They required truckers to have and show proof of general liability insurance of $3 million annual aggregate and $1 million per occurrence limit, plus automobile liability insurance of $1 million combined single limit coverage and fidelity bond or crime insurance of $50,000. The fidelity bond or crime insurance requirement was eliminated after initially being posted.

Section 31139(b) of the United States Code requires those who transport property by commercial motor vehicle to only carry insurance of at least $750,000.

Truck owners and operators who delivered to SuperValu docks and did not have proof of the extra insurance coverage that the grocery distributor required were forced to pay for lumping services – and that’s what spurred the lawsuit.

After the federal lawsuit was filed in December of 2005, SuperValu revised its policy and now requires drivers who wish to unload their own vehicles only to show proof of compliance with the insurance requirements in the federal law. However, the case is moving forward to resolve issues related to the several months in 2005 when the extra insurance was required.

– By Coral Beach, staff editor
coral_beach@landlinemag.com

DOT faces consequences for continuing cross-border program

Secretary of Transportation Mary Peters was warned in a Senate hearing that choosing to continue the cross-border trucking program despite a funding cut and congressional intent that the program stop will have consequences.

Sen. Byron Dorgan, D-ND, repeated that message Tuesday, March 11, throughout a hearing before the Senate Commerce, Science and Transportation Committee regarding the cross-border program with Mexico.

“The intent of Congress on this issue could not be more clear: The Department of Transportation is prohibited from using appropriated funds to operate this program,” Dorgan said in a prepared statement submitted to the committee record.

“Yet Secretary Peters has found lawyers who are willing to tell her that some technical loophole in the language allows the pilot program to proceed.”

The language in the omnibus appropriations legislation that addressed funding of the cross-border program states:

“None of the funds made available under this Act may be used to establish a cross-border motor carrier demonstration program to allow Mexico-domiciled motor carriers to operate beyond the commercial zones along the international border between the United States and Mexico.”

The Department of Transportation General Counsel D.J. Gribbin testified at the Senate hearing that the decision to proceed with the program after the funding provision was signed into law centered on a “plain language” standard.

He said that the DOT legal team took the basic definition of “establish” to mean “begin.” That, in his interpretation, means the DOT cannot begin a new pilot program, but could continue the existing one.

Dorgan took exception with Gribbin’s narrow interpretation; especially given he was the sponsor of the language in the Senate and asked the Legislative Counsel to draft the language for him.

Dorgan repeatedly quizzed Gribbin about whether the DOT legal counsel considered congressional intent. Gribbin continued to stand by the DOT’s legal team’s decision to stand behind the “plain language” standard.

“It’s clear what the drafters meant … It’s clear what Congress meant,” Dorgan said.

Dorgan point-blank told Secretary Peters that everyone, including her and members of the Senate who voted to protect the funding, knows the funding to the program was indeed cut off by the Omnibus Appropriations legislation.

“And yet you believe you’ve found a loophole … and frankly, I’m sick and tired of it,” Dorgan said.

“Failure to meet your responsibility under the law will have consequences.”click here for more.

Shutdown talk heats up; OOIDA flooded with calls

Thursday, March 27, 2008 – From the Atlantic to the Pacific the price of diesel is topping $4 a gallon, and truckers across the country are running not only out of money, but also out of patience.

Calls and e-mails to the Owner-Operator Independent Drivers Association have been increasing as mainstream media outlets have picked up and reported numerous rumors about possible strikes and temporary shutdowns. In fact, OOIDA operators who normally handle about 11,500 calls every week have talked to hundreds more truckers during the past two weeks than usual.

Talk of American truckers possibly staging a shutdown is being reported around the world. In France, Agence France-Presse picked up a news story out of Indiana about how truckers in that Midwestern state are comparing the current fuel crisis to the early 1970s.

Jim Johnston, OOIDA’s president and CEO and one of its founders, also remembers the desperate days of the 1970s. He said today that even though federal law prohibits OOIDA from calling for a strike because it is a trade association, OOIDA will always do its best to represent the interest of its members whether they are running or shutdown because of a lack of compensating revenue.

“Even back in the 1970s, when we saw nearly 100 percent of truckers participating in strikes, it did not lower fuel prices,” Johnston said. “Short-term relief from the situation then was the result of a temporary implementation of a mandatory fuel surcharge.

“However, we wouldn’t see that same kind of immediate result today because in the ’70s the ICC (Interstate commerce Commission) was still in place and rates were regulated. Rates are not regulated today, and there is not a government agency that could simply institute a rate increase or surcharge.”

Not only does the concept of a strike not add up economically for Johnston and other OOIDA leaders, but there is also the possibility of threat of federal prosecution if the Association is involved in such activities.

“It’s not a matter of OOIDA being for strikes or against strikes,” said Norita Taylor, OOIDA’s media affairs spokesperson. “Jim can’t help our members or other truckers if he’s in jail on federal charges.

“Criminal penalties could be imposed, those businesses and individuals who claim to be adversely affected by a strike action could initiate civil lawsuits, and the existence of the Association could be jeopardized.”

OOIDA is taking action
OOIDA is leading the way in speaking to mainstream media on a daily basis about how fuel prices are affecting independent truckers and the future health of the industry. Taylor said Thursday morning that in just the first three days this week she handled calls from 29 different media outlets, ranging from local newspapers to national television networks.

In recent weeks the Association has assisted dozens of other national journalists with information and background details, put them in touch with OOIDA members for interviews, and even arranged ride-alongs. OOIDA Executive Vice President Todd Spencer appears almost daily on syndicated news shows.

Among the information that OOIDA staff tries to clarify for mainstream media and the general public is that increases in the price of consumer goods that are being attributed to shipping costs are not the fault of the truckers. OOIDA staff explains that the individual truckers are generally not receiving those additional fuel surcharges that are being charged to shippers.

On the legislative front, OOIDA is pushing for new legislation called the FITT ACT – Fairness In Trucking Transactions. This would call for disclosure of fuel surcharges on freight transactions and a 100 percent pass-through of the surcharge to the individual who actually pays for the fuel. Soon the Association will be urging members to contact lawmakers to support this legislation.

The Association has also petitioned the Bush administration to immediately cease the diversion of oil supplies to the Strategic Petroleum Reserve and instead allow the product to directly enter the marketplace. OOIDA also asked that the administration use its authority and influence to ensure that American fuel producers and refiners cease their exports of diesel and biodiesel products to other nations.

Other things individual truckers can do
With the economic situation is expected to take some time to resolve, OOIDA is encouraging its members and other individual truckers to take every action they can to take control of their individual business operations to ensure their futures.

Johnston said that he and OOIDA staff are upset and frustrated and active on this issue.

“We completely empathize with the current conditions they face,” Johnston said. “However, fuel prices are market driven and being additionally affected by a weak dollar and high trading volumes in oil investments as opposed to any actual lack of supply.

“We are encouraging members to take full control of their own situations as much as possible, be fully aware of all costs and expenses, watch closely how this relates to what they charge or should accept for taking a load, and don’t contribute to the problem by taking loads that don’t cover costs.”

OOIDA suggests that truckers who work through brokers make sure that they are negotiating fair compensation for their services. They should also make sure that if a fuel surcharge is being collected, it is being passed on to them 100 percent.

Truckers are also urged to: run compliant; log unloading/loading time; set their rates to meet their costs; and leave freight that doesn’t pay enough at the dock.

– By Coral Beach, staff editor
coral_beach@landlinemag.com