Insights - June 2016 - (Page 9)

INDUSTRY - from page 6 being rolled out on a regional basis. "One of the things my team sees is an overall improvement in cooperation and taking the issue of safe transportation maybe a little bit more seriously," he noted. What the regional initiative could mean, he explained, is that the FMCSA will be going to more ports and intermodal locations to perform investigations. "Right now we give an IEP two weeks' notice." That, he explained, was partly because the national program required a degree of logistics to get the FMCSA team to the facility. Now, as a regional program, those issues are less a factor and the FMCSA inspectors may "just show up." Ruban then provided a quick update of regulatory developments on the horizon: * The Unified Registration System to streamline carrier registration will be fully implemented by the end of 2016. * Entry-level driver training is based on a negotiated rulemaking which should be released as a final rule in 2016. * The final rule for Electronic Logging Devices has been published and will take effect in December 2017. * The final rule on the Drug and Alcohol Clearinghouse is expected in 2016. Any carrier who has a driver who tests positive will be required to upload that data to the FMCSA database. * The safety and fitness determination changes are probably a couple of years out. Safety ratings are now based on an FMCSA visit to the carrier. The new rule will use roadside data collected from motor carriers and rate them each month. Ruban concluded with an update on the impact of the FAST Act, which requires 20 new rulemakings of FMCSA as well as various studies. Ruban urged attendees to take advantage of the notice of proposed rulemakings when they are issued to provide their comments. Port Trucker Case Is Tip of the NLRB's Spear Aimed at Contractor Status David Sparkman | MHLnews You may have seen recent news stories about the Los Angeles regional director of the National Labor Relations Board filing a complaint accusing a California port drayage firm for misclassifying drivers as independent contractors. But what you may not be aware of is this is just the first step in a planned nationwide assault on independent contractor status by the NLRB. In late March Richard E. Griffin Jr., NLRB's general counsel, issued a memo to the board's regional directors laying out an agenda he expects them to pursue. Many of the categories of cases described are intended to overturn established precedent and create new standards that will impact all worker/ management relationships-both union and nonunion. One category involves cases where Griffin wants them to apply his theory that independent contractor status by its very definition constitutes an unfair labor practice whether or not a union is involved. In his view - one shared by a majority of the board members - the NLRB's enabling law covers any employees who are engaged in what are considered concerted protected activities. This protection extends to nonunion workplaces where employees discuss and act together to address wages and working conditions, even if an organizing campaign is not involved. Under the law independent contractors cannot engage in collective discussions with management concerning compensation. Because they are defined as separate business entities, antitrust law prohibits them from colluding to negotiate rates. One solution is to declare that they are legally employees, not independent contractors. On April 18 Olivia Garcia, regional director of NLRB Los Angeles, issued just such an unfair labor practice com- plaint against drayage carrier Intermodal Bridge Transport, using Griffin's theory to charge that the company misclassified its drivers as independent contractors. The complaint was filed at the request of the Teamsters union, which has been trying to organize the company and apparently knew about the Griffin memo as soon as it was issued. "The complaint issued by the NLRB regional director represents a determination that misclassifying drivers in and of itself violates the NLRA," says Julie Gutman Dickinson, attorney for the Teamsters Port Division. "The complaint will lead to an historic trial where for the first time, a judge will determine whether the act of misclassifying drivers in and of itself violates the National Labor Relations Act." In addition to having to respond to the NLRB's contractor misclassification charge, the company is accused of other practices already illegal, including accusations that a driver was interrogated about his union support and that another was promised more work if he ceased his union organizing. The firm also is accused of threatening to end its relationship with a driver who supported the union and to close a facility if the union won. A number of drayage carriers already have switched from using owner-operators to employee drivers under government pressure. Others have declared bankruptcy, blaming the legal costs incurred by misclassification litigation, including QTS Inc., Tradelink Transport, Seacon Logix and Green Fleet Systems. In March Premium Transportation Services, also known as as Total Transportation Services Inc., filed for Chapter 11 bankruptcy protection, citing the same reason. This is an abbreviation of an article originally published by Material Handling & Logistics (, and is used with permission. Find the full article at June 2016 | Intermodal Insights 9

Table of Contents for the Digital Edition of Insights - June 2016

Restart Legislation Gets a Restart
Speed Limter Rule May Advance
FMCSA Sends Clearinghouse Rule to OMB
Silver Kingpin Award Ballots Due June 30
Business Meeting Roundtables Advance Safety and Productivity
EXPO Curtain Raisers Spotlight Industry Leaders and Analysts
State of the Industry and Federal Partners
At 25, IANA Exceeds Goals
Port Trucker Case is Tip of he NLRB's Spear Aimed at Contractor Status
Sustainability News
Freight Reports
Port News
People in the News
In Brief
2016 Sponsors
Welcome New Members
Intermodal Calendar

Insights - June 2016