- Paul Rosenberg
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By Paul Rosenberg, Senior Editor
On July 20, the ports of Los Angeles and Long Beach released the draft of their new Clean Air Action Plan, opening a two-month comment period.
The first public comment was a resounding rejection from the Teamsters, because the plan would tacitly allow the continued exploitation of individual truckers, misclassified as independent owner-operators. These truckers were saddled with the lion’s share of the costs of the Clean Trucks Program in the initial plan — hundreds of millions of dollars a year.
“Your clean air program is going to make it worse, because the actual people who paid for the last clean trucks program — and it wasn’t designed to be that way — was the drivers, the people [who] can’t afford it,” Teamsters International Vice President Fred Potter told POLA commissioners at their meeting the next day. “They made all the truck payments and most of them — virtually almost every one of them — while they paid for those trucks. They’ll never own them.”
While the initial program at least tried to protect truckers, the new plan represents a giant step back by not even trying.
The ports’ press release said the plan “incorporates feedback from nearly two years of extensive dialogue with industry, environmental groups, regulatory agencies and neighboring communities” via “more than 50 stakeholder meetings” since a discussion document was released this past November.
Conspicuously missing are mentions of truckers and their representatives.
“We were not asked to participate in these stakeholder meetings,” Potter said. “Yet, we’ve had 15 strikes, represented drivers, helped drivers with hundreds — almost a thousand — DSLE claims [California labor law violations], and class action lawsuits… every one of which they’ve won, because these drivers are misclassified.”
Teamsters spokesperson Barbara Maynard recalled an incident just before the most recent strike.
“The mayors of Los Angeles and Long Beach held a press conference and announced that they were going to move to zero-emission trucks,” Maynard said.
The strike coincided with a major investigative story in USA Today, exposing the illegal exploitative system Potter highlighted.
But despite the strike, the national exposure and petitions hand-delivered to both mayors, Teamsters were not considered part of the discussion.
“We did not receive a call, from either port saying, ‘Let’s sit down; let’s talk; let’s have a conversation, and make sure that these costs don’t fall onto the backs of the drivers again, like they did in 2008’,” Maynard said. “So it’s not like the actual announcement [of the Teamsters’ opposition] was a surprise.
“Teamsters certainly support a clean-air action plan, certainly support zero-emission trucks, certainly would support the newest technology to make our air better and the ports more efficient. But it cannot be and will not be on the backs of the drivers again.”
But truckers and Teamsters’ participation and a plan to protect truckers from illegal exploitation isn’t all that’s missing from the plan, David Pettit, senior attorney with the Natural Resources Defense Council said.
“Right now, I look at this as a wish list, rather than real plan,” Pettit told Random Lengths News. “There’s no enforceable deadline… there’s no funding mechanism.”
This makes it similar to the Air Quality Management Plan from the South Coast Air Quality Management District, which sets similar goals with a similar price tag.
“The price tag is the same, roughly a billion, with a “B”, [dollars] in each case,” Pettit said. “So South Coast wants a billion, the port wants a billion. It’s unclear where that money is going to come from.”
Making matters worse, the plan envisions two waves of new truck purchases — near-zero trucks dominating in the next decade or longer, eventually followed by zero-emission vehicles. The timing varies across seven different scenarios, but the big picture remains the same: a mess.
“The idea of doing this twice more, once to some kind of renewable LNG and then again to zero-emissions a few years later, doesn’t make a lot of sense,” Pettit said.
Around 2008, the port spent about $240 million to help subsidize the clean-air truck fleet, he recalled.
“I thought at the time, ‘How many times are they going to do this?’” Pettit said. “That’s the conundrum the port has put itself in and the answer is, ‘You just do it once.’”
Another thing that’s clear, Teamsters say: it’s not going to come from individual truck drivers like Tracy Ellis, a Teamster shop steward who also addressed the commissioners.
“During the first Clean Truck Program, my employer required me to lease a new truck, and pay all the heavy costs associated with operating that business,” Ellis said. “They got away with it by illegally classifying me as a contractor.”
The burden was crushing. She lost her house, her car.
“And, when I got sick, I lost everything,” she said.
In the existing system, there’s nothing protecting individual truckers. Although Ellis is an employee now, not everyone is so lucky.
“There are still more than 10,000 drivers working at the ports who are considered the laughingstock of the whole industry and are in the same situation that I used to be in,” she said. “These drivers will be forced to work illegal hours, two jobs, if not more, or do whatever it takes to pay for a new truck. Until every driver is guaranteed that the ports are going to ban companies that are breaking the law, then there should be no new truck replacement program.”
Ellis, who’s been a port trucker since 2001, expanded on her experience afterwards. When the ports did their first clean truck programs, it had an employee mandate to it, but nobody communicated to the drivers what this really meant, she recalled.
“We were scared, we were harassed by our employers and the trucking companies, that this wasn’t the way to go, that we better not talk to the Teamsters and this and that,” she said. “So we went along with our employers and sided with them because we didn’t know any better, because there was a big lack of communication, which I think is going on again.”
At the time, she worked for TTSI.
“They were very active with the politicians and they were the first ones to come out with a clean trucks, and claiming to be on the forefront of the whole environmental issue,” Ellis recalled.
But over time, a very different picture emerged. Truckers paid TTSI for everything truck-related, including the truck payment, the fuel, the insurance, the maintenance, tires, all the stuff that has to be paid for, but the promise of building equity was largely a fantasy.
“They would come out every once in awhile, getting rid of people for various reasons,” she said. “They would take the same truck and release it to someone else.”
Meanwhile, funding — such as the Pier Pass program — was never passed onto the drivers.
“As [a] result, when times got slow, or the work got slow, we would end up with negative checks, possibly,” Ellis said.
She was fortunate until she got sick with diabetes in 2010.
“I was on injections, you can’t drive a bus, truck or anything like that commercially on injections,” she explained, “So, I was out for a year. I had nothing to fall back on, no Social Security, because I was misclassified.”
She lost her home, her car, her credit rating — everything, because so-called “independent owner-operators” have virtually no protections of any sort.
The law is now clearly on their side in a way that wasn’t yet clear a decade ago. An exhaustive 2010 report, The Big Rig Poverty, Pollution, and the Misclassification of Truck Drivers at America’s Ports, established that port truckers are employees under existing labor law, which has been confirmed by hundreds of lawsuits and labor law decisions since. A 2014 follow-up, The Big Rig Overhaul, surveyed the progress made and projected that California “port trucking companies operating in California are annually liable for wage and hour violations of $787 to $998 million each year. The true figure probably lies in the middle of this range at around $850 million per year.”
A substantial portion of that total is due to clean truck costs; while millions in damages have been recovered, the vast majority of law-breaking still goes unpunished. That’s what the Teamsters are determined to change.
“I don’t think the port would have much of a chance in going to court and saying, ‘Well, these guys are all employees,’” said Pettit because of past rulings that the ports lack standing to make that case. “But the employees themselves can certainly do that, and I believe that there’ve been several hundred reclassification cases brought before the California labor commission, most of which have been successful.”
“Every one of which they have won,” Potter told the commissioners.
But truckers also argue that the ports can do more. The past rulings came down before misclassification law was clarified regarding port truckers. Ports do have a right — even a responsibility — to require lawful conduct. Misclassification doesn’t just hurt truckers, it gives an unfair advantage to law-breaking companies over law-abiding ones, deprives government of tax revenue and creates hazardous working conditions, endangering the public as well as drivers.
“The only way a person can make it with a clean truck is illegally,” Ellis told Random Lengths. “The legal work hours mandated through the Department of Transportation are 11 hours [a day] and the harbors have sidestepped that issue. There’s no accountability of how long or how often the truck can come in and get loads and leave. It’s like the wild, wild West.”
The law is now clear-cut.
“[Even though the law is not clear cut,] you allow lawbreakers to come and work in the port,” Potter told the commissioners. “[You] might as well put up a sign, ‘Lawbreakers welcome, come exploit the workers.’”