f e a t u r e  s t o r y

Lumping And The Law

1980 legislation made lumping illegal, but the law is vague and largely ignored.

Patricia McCullough
Senior Editor

It was 25 years ago when Joe Stastny pulled up to a California warehouse with a load of raisins and was told he couldn’t touch the cargo until the receiver hired a lumper to assist with unloading.
     Stastny doesn’t recall the rate, but it was union scale with a four-hour minimum and the lumper was in no hurry. He paid cash and did the work himself. “Had I waited for him, I’d probably still be there,” Stastny says.
     It’s a relatively tame story compared to the many tales of corruption and even violence that prompted Congress to pass an “anti-lumping” law in 1980.
     The law made forced lumping a federal offense, punishable by up to $10,000 in fines and two years in jail. Despite the ominous penalties, however, some receivers still blatantly order truckers to pay for unloading “help.” Or sometimes truckers are told they’re “not allowed” to unload, then find a fee for unloading services is deducted from their pay.
     Why isn’t the law enforced? One problem, perhaps, is that it leaves too much for the industry to interpret on its own.
     It does say a shipper or receiver cannot force a driver to hire help loading or unloading. Nor can a shipper or receiver employ what’s called “constructive coercion” to force drivers to hire lumpers. For instance, a driver who refuses to pay help can’t be told go to the back of the line. And if a shipper or receiver insists a driver hire help, the shipper or receiver must pick up those costs.
     But the law doesn’t say who is responsible for loading and unloading. That, Congress said, should be left to carriers, shippers and receivers.

CONTRACT VAGUE
     Unfortunately few carriers, shippers or receivers bother to specifically address the issue. In most situations loading and unloading is assumed to be the carrier’s common-law responsibility — i.e., it’s the carrier’s truck and the carrier’s obligation to see the freight is loaded onto and off of that truck. Once the freight is past the tailgate, the carrier’s duty is fulfilled.
     But if details aren’t worked out up front, real-world responsibility almost always drops to the low man on the totem pole — the driver or owner-operator, notes Todd Spencer, an officer and spokesman for the Grain Valley, MO-based Owner-Operator Independent Drivers Assn.
     Responsibility for loading and unloading should be clearly stated in the lease contract, Spencer says. But clever recruiters often lure owner-operators by promises of “no touch” freight and by vaguely worded contracts that say the owner-operator is responsible for loading and unloading “if applicable.”
     “Regardless of what they say, they’ve just dumped it on you,” he warns.

ENFORCEMENT GAP
     Still, the law should protect truckers from forced lumping. That is, if it were enforced.
     For a while the now-defunct Interstate Commerce Commission would at least investigate lumping complaints. But the agency was hampered by truckers who refused to openly press charges and by an ever-diminishing budget.
     And for a time the industry had a little inadvertent help with tariff rules that allowed penalties or “detention” fees charged to shippers or receivers who caused delays in loading or unloading.
     The penalty wasn’t much, recalls Spencer, but it was enough to make some receiver think twice about holding up a trucker who refused to pay a lumper.
     Detention went by the wayside with deregulation, competition and reluctance on the part of carriers to collect the extra charges.

COURTS ENLISTED
     OOIDA has stepped in with lawsuits against a couple of receivers (HDT, June).
     One is a class action suit against Michigan Repacking & Produce Co., charging that the Detroit company violated federal law by coercing truckers into paying gate fees and lumping charges in order to unload their trucks.
     A second suit, brought on behalf of Ohio owner-operator Douglas B. Bailey, alleges that Powerhouse Produce, Youngwood, PA, charged Bailey for unloading assistance without the trucker’s consent. (Full text of the lumper lawsuits are available on the Internet at www.ooida.com.)
     One objective of the lawsuits is to send a message. If they win, says Spencer, “it will show shippers and receivers that somebody will see to it that the law is enforced.”
     But lawsuits are a time-consuming and expensive way to enforce rules. In the long term, the industry would benefit from fundamental changes in the way freight is sold and priced.
     Ideally, admits Spencer, the OOIDA would like to see legislation that would make shippers responsible for loading and receivers responsible for unloading.
     In fact, he says, the then-fledgling OOIDA had convinced some lawmakers to put such restrictions in the 1980 bill. Then shippers got wind of it and “descended on Washington like a swarm of locusts.”
     The second and more likely choice is for carriers, shippers and receivers to address the issue head-on with rates and contracts that define and assign loading, unloading and extra services like sorting and stacking.
     “If loading or unloading is going to be required, a charge needs to be separated and clearly identified,” Spencer says. “Once it’s identified the parties can decide among themselves who will pay the fee. The responsibility may ultimately end up with the trucker, but at least it’s no longer buried. It becomes an item that’s there for all to see and for all to decide who will pay for what.”
     Some carriers, he adds, are in fact doing just that; but to work it needs full industry participation. The biggest mistake the industry can make would be to continue to ignore the law.
     “You can’t just bury the issue on the shoulders of the driver,” he says. “That’s what’s happened for too long.”

SIDEBAR
The Anti-Lumping Laws