As truckers protest for the fifth day, workers at the Port of Oakland have been busy setting up orange barricades at all four of the marine terminals in case demonstrations over controversial state law AB5 spill over into next week.
Late Thursday, port officials met with some of the drivers, urging them to end the protests that have largely shuttered container movement for five days, imploring the truckers to find a “path forward to returning to full operations at the Port of Oakland.”
“We respectfully ask that each independent owner-operator cease any further protest activity that disrupts port operations and the flow of commerce at the seaport,” Danny Wan, executive director of the Port of Oakland, said in a letter to port drivers.
Some independent drivers were upset Monday after warning Port of Oakland officials not to minimize the impact the protest had on the movement of containers after stating there was “some traffic congestion.” On Wednesday, Wan admitted the protests had “effectively shut down operations at shipping terminals at the Port of Oakland.”
“I understand the frustration over AB5,” Wan said in his letter Thursday. “We hear you. We have heard you since day one of your protest action.”
After the meeting with protesters, Wan said the Port of Oakland will establish a working group made up of port and independent trucker representatives to review concerns regarding the implementation of AB5, address trucker amenities and services and discuss upcoming state clean truck rules.
“We must get back to normal operations!” Wan said.
In a statement, California Gov. Gavin Newsom affirmed AB5, a controversial law he signed in 2019 that seeks to limit the use of independent contractors and largely classify them as employee drivers.
Legal challenges prevented the law from going into effect in January 2020. That all changed when the U.S. Supreme Court refused to hear the California Trucking Association’s challenge to AB5 in late June, returning the case to the 9th U.S. Circuit Court of Appeals.
However, Newsom said independent truck drivers have had “sufficent time … to understand the requirements of the law.”
The truckers want Newsom and the California legislature to exempt independent contracts from AB5 as they have done for other industries, including lawyers, real estate agents and accountants.
Some of the protesters carried signs reading, “If Gavin Newsom can give an exemption to Willie Brown to write a news article … Gavin Newsom can issue an exemption for the most vital industry in the USA.”
Their signs referenced a September 2020 article in Politico in which Newsom signed a bill lifting the limit on submissions by freelance writers, photographers and musicians after his mentor, Brown, the former San Francisco mayor and state assembly speaker, was told he had reached the 35-article submission cap under AB5 for his weekly column appearing in the San Francisco Chronicle.
The article stated the law, exempting Brown and others from AB5, went into effect immediately because “it was written as an urgency measure and received two-thirds support.”
According to the Politico article, Newsom later texted Brown, “I signed the bill, write the damn column!”
In Newsom’s statement, he listed various resources on AB5 compliance: “The state will continue to partner with truckers and the ports to ensure the continued movement of goods to California’s residents and businesses, which is critical to all of us.”
AB5 stems from the California Supreme Court’s decision against Dynamex Operations West Inc., a package and document delivery company. The court found Dynamex had misclassified its delivery drivers as independent contractors rather than employees and that all California-based companies that use independent contractors must follow the “ABC test,” a three-pronged check to determine whether a worker is an employee.
The B prong defines an independent contractor as a worker engaged in “work that is outside the usual course of the hiring entity’s business.” That is problematic for motor carriers utilizing independent owner-operators to move freight.
Several law firms and trucking associations are touting solutions to help independent contractors comply with AB5.
“If you go to 10 different lawyers, you will get 10 different solutions,” Joe Rajkovacz, director of governmental affairs for the Western States Trucking Association, told FreightWaves.
One independent contractor, who has served the Port of Oakland since 2005, says he doesn’t want to become an employee driver.
“If I was being misclassified or wanted to be an employee driver, after 17 years of trucking with my own equipment, does Gov. Newsom not think I’m smart enough to figure it out?” the driver, who didn’t want to be named for fear of retaliation, told FreightWaves. “There are banners everywhere on the gates around the port advertising company driver jobs. I just don’t want to be one.”
Bill Aboudi, owner of Oakland-based AB Trucking, has six trucks that serve the port. He said drivers want to choose whether to be independent contractors or employees but that choice is being taken away under AB5.
“Why doesn’t the state take all of these resources and target the companies that truly misclassify their drivers instead of potentially wiping out 70,000 small-business truckers?” Aboudi said. “What would happen if Newsom passed a law stating no more unions were allowed in California? People would lose their minds, but it’s OK to target truckers and expect us to just take it?”
Nearly 200 port drivers attended a meeting in Oakland on Thursday after receiving the letters from the port and governor’s office. Harpeet Singh Sandhu, executive director of the American Sikh Congressional Caucus, urged the truckers at the meeting to find an attorney to represent them if they wanted to continue to protest Monday.
That’s because the port has established “designated safe protest areas” at the four terminals — Oakland International Container Terminal, also known as SSA, TraPac, Everport and Matson. No vehicles may obstruct any entrances or exits to terminal operations or any maritime business areas.
“Owner-operators must comply with all vehicular and local regulations,” Wan said in the letter. “Any protester who does not comply with the law may be cited and penalized by the responsible law enforcement agencies.”
As of publication Friday, Kimberly Sulsar-Campos, vice president of Oakland-based Iraheta Bros. Trucking, said the drivers hadn’t decided whether to continue to protest Monday.
“This was a nothing sandwich from the governor,” Sulsar-Campos told FreightWaves. “They are very angry that their livelihoods are being taken away when the governor has created carve outs and exemptions for others.”
Rafael Quintero, owner of one of the oldest drayage companies that serve the Port of Oakland, called AB5 “an American dream killer” for thousands of minority drivers who immigrated to the U.S. with the goal of owning their own businesses. He started out as an owner-operator in 1979 and built his company to nearly 80 drivers before scaling back to 10 over the past few years.
“Many port drivers come from poverty like I did and came to America to get away from being controlled by the government,” Quintero told FreightWaves. “These owner-operators are able to provide for their families and put aside money with the dream of eventually owning their own companies just like I did.”
Quintero said he hopes millions of California small businesses, including freelancers, translators and consultants, affected by AB5 will remember when they vote.
“If [Newsom] decides to run for president, I hope residents of California remember he is against small businesses,” Quintero said. “If he can do this to truckers and other independent contractors in California, he can do it anywhere.”
Credit FreightWaves by Clarissa Hawes