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12/7/2005
SPECIAL REPORT: OOIDA names Supervalu in lumping lawsuit

Seeking an end to what it contends are illegal lumping requirements, OOIDA has filed a lawsuit against the grocery chain Supervalu Inc. in federal court in St. Paul, MN.

The suit, filed Tuesday, Dec. 6, challenges the grocer's policies for truckers who make deliveries to its docks.

If certified as a class action, the case could involve thousands of truckers who have made deliveries to Supervalu docks since March this year and could result in Supervalu having to reimburse those truckers for what OOIDA contends were illegal lumping fees.

OOIDA President and CEO Jim Johnston said the lawsuit is a case in point and should send a message to other receivers.

"OOIDA has been working on this for a very long time," Johnston said, "and it's not the only case. We knew there were problems out there, but it's hard to get truckers to come forward and go on the record with complaints because they fear retribution."

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.

"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, Supervalu, 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 Supervalu 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 Supervalu 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 (Supervalu) 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 Supervalu 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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