In Industry Where Few Workers are ‘Employees,’ Teamsters Mount Multi-Front Attack

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A rare union election victory in New Jersey and a battery of wage theft complaints in California represent the latest steps in the Teamsters union’s effort to transform port trucking, a growing industry in which most workers aren’t considered employees under the law.

“These guys are sharecroppers on wheels,” said Teamsters International Vice-President Fred Potter, who directs the union’s port division.

Port truckers carry freight from the nation’s ports to chains like Walmart and Starbucks. Since trucking deregulation during the Carter Administration, most such workers have been classified as “independent contractors,” a growing category of American workers who aren’t legally anyone’s employees. The International Brotherhood of Teamsters alleges that over 80 percent of port truckers are misclassified—wrongly denied “employee” status.

As I’ve reported, port truckers charge that their status comes with all the downsides of employment—the companies they work for set their compensation and regulate their work—and little of the upside. Most port truckers pay for their trucks (sometimes leasing them from their bosses) and the fees and upkeep costs that come with them, get paid nothing for the extra time they spend idling in traffic and have no legal right to unionize. Such a “Who’s the Boss?” problem has become increasingly prevalent for US workers, as increasing numbers are cast among the ranks of temps, informal workers or independent contractors lacking the legal rights of employees—including collective bargaining.

Citing a series of public and private sector studies, a spokesperson for the federal Department of Labor told The Nation in an e-mail that the “numbers suggest that misclassification occurs in significant numbers and, across the country, workers are finding themselves without the basic protections that Congress has enacted to ensure they receive fair pay, safe workplaces, and necessary supports when they are hurt or lose their jobs.” The spokesperson said that the DOL does not have sufficient data to determine the extent of the issue in port trucking specifically.

The Teamsters and the Change to Win labor federation have attacked the port trucking status quo on multiple fronts: legal charges against companies, lobbying for state law changes and stepped-up federal enforcement and organizing efforts among both drivers with legal unionization rights and those without them.

In National Labor Relations Board election ballots counted last Wednesday, Toll Group employees at the Port of Newark—among the minority of US port truckers classified as employees under law—chose by a three to one margin to join the Teamsters. As I’ve reported for In These Times, that election follows an NLRB union election victory involving Toll employees at the Port of Los Angeles last year. Both campaigns turned ugly; the Teamsters allege Toll fired union supporters in Los Angeles in an effort to intimidate workers. During regular anti-union meetings in New Jersey, said driver Fred Schmitt, “they tried to lie, to discourage us from voting in the union.” But he said that the California victory “made it a little bit easier for us to organize here.”

After winning the Los Angeles election, the Teamsters accused Toll of dragging its feet in negotiations. Toll and the Teamsters reached a contract deal there after the union mobilized support from Australian union members, mounted “practice pickets” to show their willingness to strike and leafleted to customers of the Toll client Under Armour with a message accusing Toll of “degrading its U.S. workers.”

Reached over e-mail regarding the New Jersey vote, Toll Group spokesperson Christopher Whitefield said the company “welcomes the conclusion of this campaign and recognize[s] our employees’ decision.” He pledged that Toll “will negotiate with the union in good faith.” Whitefield also said Toll “rejects recent claims of its managers being slanderous towards union representatives,” and expressed confidence that “these latest allegations will be demonstrated to be false.”

Along with legally employed workers at Toll and other companies, the Teamsters are also organizing port truckers for whom collective bargaining so far isn’t an option. As Sarah Jaffe reported for In These Times, port truckers at the Port of Savannah held a June community forum whose attendees included a representative from the federal Department of Labor. Asked about the event, a DOL spokesperson e-mailed that the Obama Administration “has made it a priority to tackle misclassification” and “we regularly attend public events that give us the opportunity to educate employers about what the law requires and inform workers about their rights.”

Among the Obama Administration’s efforts on the issue, the DOL cited new information-sharing with state agencies and the Internal Revenue Service, lawsuits against companies over misclassification, “nearly $14 million” for increased anti-misclassification efforts in Obama’s 2014 budget proposal and “a 50% increase in the number of workers receiving back wages” who had been denied required minimum wage or overtime mainly due to misclassification.

The Teamsters are pushing the DOL to do more. While enforcement has improved under Obama, said Potter, “Quite frankly, sometimes we think government moves a little slow…We would like to see them ratchet up and do an industry-wide probe at every port around the country.”

The union is also pushing state-level bills that would give port truckers greater tools against alleged abuse. Under bills passed by legislators in New York and New Jersey, many such workers would be presumed to be employees unless employers could prove otherwise, and offending employers would face greater penalties. Potter said he’s received “no indication” from Governors Andrew Cuomo and Chris Christie whether they will sign or veto the bills; each faces a deadline next month to decide. (Neither Governor’s office responded to a Friday request for comment; the DOL said the Obama Administration has not taken a position on the state bills.)

The same day that the Teamsters won their New Jersey election, workers at the Port of Los Angeles filed the latest in a slew of wage and hour claims against port trucking companies operating in California. The claims allege that companies have illegally misclassified workers as independent contractors, denied them the wages they would legally have been entitled to as employees, and subjected them to payroll deductions that could not legally be required of employees. Following know-your-rights meetings organized by the Teamsters and the Los Angeles Alliance for a New Economy, over 400 such claims have been filed in California—some by the Teamsters, other by private attorneys. Combined with eight potential class action lawsuits, the union says the industry faces a potential liability of $100 million.

“In reality, the company dictates everything,” said Ernesto Cardona, one of the workers who brought charges. “Technically we’re each our own ‘independent business,’” Cardona told The Nation in Spanish, “but we don’t have the right to determine how much we’ll get paid, where we take our load, when we work—the company dictates all of that.”

These organizing, legal and political efforts are designed to reinforce each other. Potter said that legal action “puts pressure on them to change their business model, and not misclassify workers. That will open the door for the workers, properly classified [as employees], to then seek union representation.” He predicted that evidence of rampant lawlessness would also hurt trucking companies’ relationships with the major chains that hire them. Votes to unionize by port truckers could also strengthen the case that members of the allegedly misclassified majority should have the chance to do the same.

The most dramatic attempt at such synergy took place in 2011, when port truckers staged a strike in Washington state, driving off the job in protest of alleged retaliation and massing at the state capitol to demand passage of an anti-misclassification bill. While the drivers successfully slowed the pace of Seattle’s port, the bill died in the State Senate after passing the House. Asked about that defeat, Potter said, “The industry showed up in force.” However, he said, “That bill is not dead to us.”

As new union members in an overwhelmingly non-union industry, Toll workers in California and New Jersey now have the opportunity to help organize peers at other companies. The campaign acknowledges that the higher standard it’s achieved in the Los Angeles Toll contract—which it says doubles workers’ hourly pay—won’t be sustainable unless some of Toll’s competitors follow suit. Indeed, that contract has language committing the Teamsters to organize currently non-union workers at other companies as well.

Schmitt told The Nation that as he and other Toll employees run into drivers from other companies at the Port of Newark, “They’re asking us questions. People are congratulating us on the victory. I guess once we get a collective bargain agreement, and the word is out, don’t be surprised that they would probably want to form a union too.”

Warehouse workers in California who move Walmart baggage went on strike yesterday in protest of alleged retaliation for exposing safety risks, but the company says the allegations are false.