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12/2/2005
SPECIAL REPORT: OOIDA to file lumping lawsuit

For decades truckers have been taking their lumps when it came to unloading their trailers at certain docks.

Now, in a lawsuit it intends to file next week, OOIDA is challenging what it contends are illegal lumping charges at the docks of a retail grocery chain - a chain whose lumping policies were already condemned by a federal circuit judge in 1998.

The Association's suit will ask a federal judge in the same circuit to declare the case a class action, which could mean thousands of truckers could benefit.

Simply put, OOIDA wants the federal court to order the retailer to stop what it calls illegal practices and pay back "the improper profit that the retailer realized by shifting costs to somebody that shouldn't have them," said Randy Herrick-Stare, the attorney from The Cullen Law Firm who is handling the case for OOIDA.

"(What we) intend to seek in the litigation is payback - restitution it's called in the law," Herrick-Stare said Thursday, Dec. 1, adding that the number of truckers who have likely been illegally required to pay for lumping could easily be in the thousands.

"A large enough number of drivers could be directly effected because there are probably more than 1,000 deliveries a day - that's every day from March (when the chain's new policy went into effect) to the present ... do the arithmetic and you get up to some pretty high numbers pretty quickly."

And there are even more dollars at stake.

"If there are 1,000 deliveries a day and every delivery involves improper lumping fees or improper shifting of the lumping fees of $50, $60, $100, whatever that is, it's easy to do the math and you run up into two commas pretty quickly," Herrick-Stare said.

At the heart of the case is the federal motor carrier law that states receivers must bear the costs of unloading interstate freight if they require that truckers be assisted in the unloading process. The law also prohibits anyone from coercing or attempting to coerce interstate truckers to "unload . or pay persons to unload" the freight they are hauling.

According to two OOIDA members who are named as plaintiffs in the suit along with the Association, the grocery retailer to be named in the case adopted new policies in March this year that violate the federal laws regarding lumping.

Truckers Joseph Rajkovacz of Edgar, WI, and Carl Schaefer of Alpha, OH, had both made deliveries to the grocer prior to March without difficulties. Then the grocer instituted new policies requiring insurance coverages in excess of federal requirements and requiring truckers without that insurance to accept assistance from and pay for lumpers.

Rajkovacz lost several hours of time because he was required to wait for lumpers to unload three pallets of cottage cheese. He was required to pay the lumpers out of his own pocket and was not given any detention pay for being delayed.

Schaefer was delayed from 2 a.m. to 10 a.m. in April when he tried to deliver a full load of pet food to one of the grocer's distribution centers. He was also required to accept the assistance of lumpers and required to pay them out of his own pocket. But he didn't have the $75 cash that the lumping firm was demanding and he had to drive to an automatic teller machine to get the money before they would unload his truck.

While such circumstances are well known to truckers across the country, OOIDA's general counsel said that this case is based on the fact that this grocer has system wide problems. Herrick-Stare said this is different than local operations that target drivers on a local or case-by-case basis.

And, the grocer was told by a federal judge in 1998 that a trucker "must be allowed to unload his own truck free of coercion to pay someone else to do the job."

"One of the reasons that this particular piece of litigation is about to be commenced against this particular retailer is that this retailer was a subject of litigation under this statute in 1998 and the federal appellate court at that time basically told this retailer that ... they couldn't be leaning on truck drivers and we think that their policy that they adopted back in March has done exactly that," said Herrick-Stare.

In addition to asking for the grocer to stop violating federal law and pay back "ill-gotten gains" Herrick-Stare said OOIDA officials hope that the case against this grocer will send a signal to other receivers.

"In terms of practicalities in the workplace and operations, we expect it will have some precedential value in the sense that retailers and businesses will sit up and take notice if they are going to be tagged for improper coercion of drivers," he said.

"So, in a very practical way we expect this litigation will have some beneficial effect in the marketplace beyond this specific case."

In the mean time, Herrick-Stare had some practical advice for truckers who believe they are being illegally required to accept and pay for lumping services.

"What I would tell truckers, fundamentally, is if they are feeling squeezed or coerced or leaned on at delivery sites, they do have remedies.

"It's appropriate for them to be communicating with OOIDA about the problems they are having getting their loads off their trucks and onto the docks ... they do have rights and a lot of drivers don't realize that there is law on the subject."

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

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