One of the most difficult and trying aspects of working through the court system to vindicate the rights of professional truckers is the substantial length of time such actions can take to arrive at a final resolution.
Like most of you, when I was driving over the road for a living, a successfully finished job or project was measured in terms of round trips or loads delivered on time and in good condition. Adjusting to the concept of initiating a project that could take years to complete has been extremely frustrating to me. It's especially frustrating when the challenged practice involves a gross and continuing injustice – (which is the driving force behind some of our actions against motor carriers. These are cases where hard-working professional truckers are being deprived of hard-earned income through what I view as devious, unconscionable and illegal business practices.
Unfortunately, most of the legal actions we have filed involve issues that have not previously been tested in courts, such as the lumping cases and leasing rules violations. This unsettled status, combined with the fact that the opponents in these cases possess the substantial financial resources necessary to take full advantage of the legal system and all of its loopholes, not only extend the time and costs involved for us, but also can result in lengthy detours in cases where an appeal of a lower court ruling is necessary. In the cases against Prime and Arctic, for example, our efforts to date have involved two federal district courts, the Court of Appeals for the Sixth Circuit and the U.S. DOT.
Another consequence of the length of time involved in these actions is that sometimes folks tend to forget what they were all about in the first place. A minor victory or loss in one of the jurisdictions provides the opportunity for propaganda or misinformation about the status of the action by the winning side. We usually avoid beating the drum in these instances, because we know winning or losing a battle is a long way from winning or losing
the war. In my editorial in the August issue of Land Line and on our web site, I responded to some propaganda being put out by New Prime, Inc., that clearly provided a false impression of both the status of the action against them and the issues involved.
We received several responses to our clarification from truckers who have had experience with New Prime's business practices. The following excerpt from one of those responses should provide a clear reminder of why the action was filed in the first place and why it is so important that this type of unscrupulous business conduct be brought to an end.
Your recent update on the suit, "Drivers" v. Prime, is not surprising in the least. Not only has Prime put this garbage on their web site, but listen to the safety tape for April. This entire tape is dedicated to this very subject! If you are not aware, they are available at the Petro fuel desk in every state and since we left Prime in April of 1999, we have yet to see any of the money due us, i.e. tire fund, emergency fund, etc.
We lost a total of about $11,000 plus with this lease or so-called lease. I have payroll statements, repair bills, maintenance histories on the two trucks they leased us and all the multiple problems, etc. that forced us to give up. Did we leave disgruntled? No! We left feeling we had failed. We gave 200 percent to this company and in the entire time we were employed with Prime (from August of 1998 until April of 1999), we only took 2.5 days off. We were available for dispatch every day, other than when we were in the shop for equipment failures. Trust me, this was a lot and the downtime they say they pay their drivers is bull. We saw this two times and only after going to Rob Lowe.
Please let us know what you would like from us. We have documentation and have copies of both leases, etc. I have the April tape if you do not and would like to listen to it. Our cell number is listed above, feel free to use it. We want to take part in this suit.
(Aug. 3, 1999)
Prime claims their business practices are legal and not in violation of the leasing regulations. Yet their defense so far has focused primarily on procedural grounds aimed at moving jurisdiction from the courts to a section of the U.S. DOT that is understaffed, inexperienced at handling these types of disputes and has stated they do not wish to be involved. If, in fact, they really do believe they are innocent, then why not quit wasting time and resources on side issues, and instead, move forward to put the evidence before a jury? We have no intention of backing down and the delays only postpone the final outcome.
As I am writing this editorial, I have just learned that one delaying tactic will no longer work for carriers – and it's great news for hard-working owner-operators! The U.S. Court of Appeals has ruled in favor of OOIDA, noting the legislative history and Congressional directive that stipulates "that private parties may bring actions in court to enforce the provisions of the Motor Carrier Act." The appeals court judges also wrote that "Prime, Arctic Express, and the American Trucking Associations urge us to ignore this history..."
We, at OOIDA, are very pleased with the appeals court decision and the judges' ability to sift through the reams of paperwork to find the truth. The significance of this decision goes far beyond Prime and Arctic. The courts have reaffirmed what Congress intended in the late 1970s and again in 1995 when the ICC was abolished – that leased owner-operators should have recourse against carriers over contract provisions and violations of the truth-in-leasing rules. With this decision, we can begin the process of leveling the playing field for small business truckers leased to carriers.
In other matters, the case against Mayflower, involving fuel tax credit reimbursements and alleged overcharges for insurance deductions is currently moving forward through the discovery process after significant delays by Mayflower in producing court-ordered documentation. Interestingly, at a recent seminar put on by ATA for motor carriers on the subject of the OOIDA lawsuits, one of the attorney speakers mentioned that so far, they had been able to slow OOIDA's activities through stonewalling tactics. Also of interest, one of the attorneys mentioned that the best defense against OOIDA's lawsuits was to comply with the leasing regulations. Good idea. That's a whole new concept for some carriers, but one they would be wise to follow.
In the case against Rocor alleging improper Worker's Compensation Insurance charges, a motion is currently before the court requesting summary judgment. A decision in this round is expected in the near future.
The actions filed against the state of Illinois, Indiana, Ohio and New York seeking recovery of state fuel taxes paid for miles run on the toll roads – are still in the early stages with no court dates yet scheduled.
The case against EFS National Bank and Pilot and Flying J truckstop chains – over what we have alleged to be improper surcharges added to credit card purchases - is now before the Tennessee Court of Appeals. In regard to this case, we had an interesting visit from the president of Flying J a few months ago. He requested that we drop our action against them in exchange for them giving OOIDA credit for helping to develop a "great new benefit for truckers." The benefit was a new debit card developed by Flying J through their affiliated bank. The benefit to truckers, I suppose, was that they would not be charging a surcharge on this one. Using the old carrot and stick approach, he also mentioned that Flying J had a substantial list of a couple of hundred thousand truckers and that if we didn't accept his offer he would do a mailing letting truckers know "the facts" and who their real friend was. We, of course, declined the generous offer and advised him that we had no problem with his mailing as long as it was factual and accurate.
Lumping cases settled
On the brighter side, we have negotiated settlements in the two lumping cases filed, challenging receivers' unloading practices. Details regarding settlements in the action involving Powerhouse Produce were covered in the August issue of Land Line. Details covering the proposed settlement in the case of OOIDA, et al. v. Michigan Repacking & Produce are covered on page 16 of this issue.
Specifically, the challenged practices involved requiring truckers to pay a fee for removal of palletized freight from the truck. OOIDA also challenged Michigan Repacking's practice of requiring truckers to pay a gate fee to gain admittance to its dock as described in the Land Line articles (in August and in this issue). Now, both receivers have agreed to follow new unloading practices that treat truckers more fairly.
These settlements provide an extremely important precedent in our on-going effort to address the very serious issue of loading and unloading problems. While I realize these particular issues are only one part of a much broader problem involving many differing practices, these settlements represent a very good first step. What we need now, in order to begin resolving these problems on a broader level, is your help in identifying other shipping or receiving locations that impose similar requirements as a condition of loading or unloading. By that, I mean shippers or receivers that require payment for loading or unloading of palletized freight. The clearest case can be made for violation of the law in instances where the shipper or receiver requires you to pay for loading or unloading services and does not allow the option of performing the work yourself; or if they do allow you to do the work yourself, but require that you hire a helper. It will also be helpful (but not required) for you to be willing to be named as a plaintiff in any action that may be filed against such practices.
It is important to recognize, however, that many practices that are unjust or abusive may not be illegal. If you know of locations that impose these requirements, document the circumstances in as much detail as possible and contact Gary Green in our office at 1-800-444-5791.