'Clean Trucks' Title Masks Ports' Labor Agenda

ATA's challenge to the Ports of Long Beach and Los Angeles' Concession Plans took another step forward on March 4 as the U.S. Court of Appeals for the Ninth Circuit heard oral arguments. The U.S. Department of Justice joined ATA in support of its challenge. (Click March 4 oral arguments.wma to listen to the entire oral arguments)

During the arguments the panel of three judges focused on the L.A. Port's phase-out of independent contractors and seemed skeptical of the assertion that the requirement had any connection to motor vehicle safety. For example, consider this exchange initiated by one judge:

Judge 1 -- "In your opinion this (concession plan) gives you the authority to put small, independent truckers out of business on the theory that well, should you be employed by somebody they'll get better wages and we can control you better if you're employed by somebody? Employees of some giant organization, that's good, but being a little independent guy that owns your own truck like we know most truckers are and do, that's bad and we don't want you on our property? Is that correct? And you believe your interest, port safety, allows you to control the whole structure of that industry?

Port Counsel -- "Well, not the whole structure, certainly. Elements."

(Click Audio File--effect on trucking industry.mp3 to listen to this section of the arguments)

In another exchange, two judges questioned why the Ports use "safety" as justification for the Concession Plan.

Judge 2 -- "So, are you using 'safety' to carry out your environmental objectives?"

Port Counsel -- "No. No, it's all one program but for present purposes the security aspects are what we're relying on in front of this court."

Judge 3 -- "So how does the Plan, or elements of the Concession Program further security?"

Port Counsel -- "Um, the, the, um, the. In several ways. The program, the Concession Agreement makes the individual, uh, motor carriers responsible for, uh, the data that is submitted."

Judge 2 -- "What does that have to do with security? I don't quite understand. Or safety?"

Port Counsel -- "Um, your honor, basically up until October 1 we had no ability to control who was coming onto the port. We had no mechanism that identified the cargo, identified the drivers, identified the responsible, uh carrier."

Judge 3 -- "And if you didn't have the concession agreement, are you telling me that there's no other way to achieve that objective?"

Port Counsel -- "There, there, there might be alternative ways to achieve the objective, but this is in fact the program we have developed."

Later, rebuttal from ATA's attorney pointed out there is an excellent "alternative way" to control who was coming onto the port. Federal law already requires that port truck drivers obtain a Transportation Worker Identity Credential (TWIC) to get access to any port, and a thorough background check is required to get a TWIC.

(Click Audio File--Concession Plan.mp3 to hear the full exchange)


The current Concession Plan also bans trucks that access the Port area from other parking jurisdictions other than off street commercial lots, even if it's legal to park in those zones. This act further discriminates against small carriers and there's no evidence that this ban is safety-related, as the Cities of Los Angeles and Long Beach have made no attempt to explain why it's safe for some trucks to park on the street while those that operate at the Ports and serve international commerce cannot.

(Click Audio File--parking restrictions.mp3 to hear more about restrictions at the Ports)

The judges could issue a decision in 30 to 60 days, which would likely move the case back to the District Court with instructions regarding further handling of the injunction request. Repealing the Ports' Concession Plan is essential for protecting the rights of motor carriers and Port workers who operate the nearly 29,000 trucks admitted at the Ports of Los Angeles and Long Beach.