Journal
Journal in brief 16 Commercial Carrier Journal April 2009 T he U.S. Court of Appeals for the Ninth Circuit last month delivered a major victory to the American Trucking Associations in its ongoing litiga-tion against the ports of Los Angeles and Long Beach. A three-judge panel ruled that the federal district court should have granted ATA's request at least in part for an injunction against the concession agreements in place at the ports. In short, motor carriers should not be required to adhere to the various uncon-stitutional provisions in the Ports' agreements, and are likely to suffer irrevocably if forced to do that or give up their businesses, the court's opinion said. The appeals court left open the possibility, however, that the federal district court could leave portions of the concessions in place while enjoining other pieces of the agreements. The appeals court particularly was troubled by the Port of Los Angeles' conces-sion agreement, saying it is the most disruptive and is likely to cause the most harm. The key difference between the two is that the Los Angeles concession agree-ment forces motor carriers to phase out their use of independent contractors. If the Port of Los Angeles proceeded with that measure pending litigation, the carrier will be forced to incur large costs which, if it manages to survive those, will disrupt and change the whole nature of its business in ways that most likely cannot be compensated with damages alone, the appeals court ruled. A key question in the litigation is whether the ports' concessions fall within the safety regulatory exception of the federal motor carrier preemption law. Regarding the Port of Los Angeles' claims in support of its phase-out of inde-pendent contractors, the appeals court declared, We see little safety-related merit in those thread-paper arguments, which denigrate small businesses and insist that individuals should work for large employers or not at all. The Los Angeles concession also includes an on-street parking ban, which the appeals court said is unlikely to be genuinely responsive to safety. Both concession agreements require numerous financial disclosures from motor carriers, including annual reports, Securities and Exchange Commission filings, balance sheets, income tax statements and pending legal actions. The appeals said it was unlikely that the financial disclosure requirements in both ports' agreements could be justified under any conceivable safety rationale. The court likewise faulted a provision in the Port of Long Beach agreement requiring motor carriers to notify drivers of available health insurance. Again, this has no discernable safety purpose. As of Oct. 1, 2008, any motor carrier out of compliance with a port's con-cession agreement had been barred from entering that port, a situation ATA argued has caused motor carriers to suffer both short- and long-term capital losses and injuries to business goodwill. ATA had not challenged the ports' Clean Truck Program (CTP), which bans older trucks and uses a container fee to subsidize the purchase of newer, cleaner trucks. Court rejects key parts of L.A., Long Beach concession plans Ruling reverses district court's denial of injunction n Employee Free Choice Act also known as the card check bill was introduced in both the House and Senate on March 10. H.R. 1409 and S. 560 would allow union organizers to gather unionization votes openly without a secret-ballot election. Most business groups, including the American Trucking Associations, strongly oppose the legislation, and the U.S. Chamber of Commerce has declared that defeating card check is its No. 1 priority. As of late March, the bills had 39 co-sponsors in the Senate and 223 co-sponsors a majority in the House. n Index fell 2.3 percent in January from its December level, falling for the third consecutive month to its low-est level in more than five years, the U.S. Department of Transportation's Bureau of Transportation Statistics reported. The January decline was the fifth monthly decrease in six months. n vehicle miles in January 2009 than in the same 2008 month, the Federal Highway Administration said. The 3.1 percent drop is the first back-to-back decline for the month of January since 1981-1982, the agency noted. The decline in rural driving in January 2009 outpaced the drop in urban driving. n Transportation plans to close 25 of its 41 interstate highway rest areas due to budget and staffing cuts. American Trucking Associations President Bill Graves called the move simply beyond comprehension because the rest areas are important for the safety of average motorists as well as profes-sional truck drivers. The provisions on independent con-tractors denigrate small businesses. (Continued on page 18)