Legal Smokescreens in the New York School Bus Drivers' Strike

Legal Smokescreens in the New York School Bus Drivers' Strike

by James Gray Pope,
Professor of Law & Executive Council Member, Rutgers Council of AAUP/AFT Chapters, AFL-CIO

January 17, 2013

Published by Portside

If you listen to Mayor Bloomberg, you might think that he is
just an innocent bystander in the school bus drivers' strike,
and not the boss in charge.  To create this impression, he has
been making two claims grounded in law.

First, he contends that his decision to strip the drivers of
longstanding job protections was dictated by a recent court
decision.  This claim is puzzling.  The decision in question
found that a different group of (nonunion) school bus drivers
were unlikely to strike and therefore job protections for them
could not be justified as necessary to prevent strikes.  It is
unclear, to say the least, how this decision applies to union
drivers who are actually out on strike.  Bottom line, the City
enjoyed decades of continuous service under the previous
agreements, but has now chosen to provoke a strike under a
specious claim of legal necessity.

Second, Bloomberg declares that he has nothing to do with the
strike because the workers are employed by private bus
companies, not the City.  This claim is part and parcel of an
increasingly popular union-busting strategy made possible by
the growth of contracting.  It used to be that companies and
governments employed workers directly.   If the workers
organized a union, they could stop competing with each other
and demand a decent wage for everyone.  Today, however,
companies and governments "outsource" much of their work to
contractors.  For example, the City contracts out school
transportation to twenty or so private companies.  These
little companies compete with each other for contracts, and
the law requires the City to pick the lowest bidder.  How can
the companies bid low?  Cutting wages and benefits is the
easiest way.  If the union wins decent wages from some
companies, other - nonunion - companies will enter the field
and drive wages down.  That is why the union lobbies the City
for job security protection.  As a technical legal matter, the
companies are the employers, but - in reality - everyone knows
that the City is the only party that can effectively grant
decent wages and job security.

Not only Bloomberg, but also the bus companies are seizing
upon this technicality.  The companies have filed a charge
with the National Labor Relations Board (NLRB) claiming that
the union is engaged in an illegal "secondary strike."  This
charge highlights a fundamental unfairness in American labor
law.  Workers are banned from applying strike pressure to
anybody other than their immediate employers (in this case the
bus companies) even if somebody else (here, the Bloomberg
administration) actually controls the workers' conditions.

For this reason, the International Labor Organization has
determined that the U.S. ban on secondary strikes violates
international standards.  Unfortunately, international
standards - though binding in theory - are not enforceable.
If the NLRB finds that the union is actually striking against
the City (an issue that will hinge partly on what happened
behind closed doors at bargaining meetings), then it will be
required by law to seek a court injunction banning the strike.
At that point, the school bus drivers will face a dilemma
similar to the one faced by striking New York City subway
workers in December of 2005.  Back then, Transport Workers
Local 100 defied an injunction, and local President Roger
Toussaint aptly compared the strikers to Rosa Parks.  Whether
the defiance resulted in victory or defeat is still disputed
today, but there is no doubt that Local 100 merits respect
from all proponents of justice in its principled assertion of
the fundamental right to strike.

by James Gray Pope,
Professor of Law & Executive Council Member, Rutgers Council of AAUP/AFT Chapters, AFL-CIO

January 17, 2013

Published by Portside

If you listen to Mayor Bloomberg, you might think that he is
just an innocent bystander in the school bus drivers' strike,
and not the boss in charge.  To create this impression, he has
been making two claims grounded in law.

First, he contends that his decision to strip the drivers of
longstanding job protections was dictated by a recent court
decision.  This claim is puzzling.  The decision in question
found that a different group of (nonunion) school bus drivers
were unlikely to strike and therefore job protections for them
could not be justified as necessary to prevent strikes.  It is
unclear, to say the least, how this decision applies to union
drivers who are actually out on strike.  Bottom line, the City
enjoyed decades of continuous service under the previous
agreements, but has now chosen to provoke a strike under a
specious claim of legal necessity.

Second, Bloomberg declares that he has nothing to do with the
strike because the workers are employed by private bus
companies, not the City.  This claim is part and parcel of an
increasingly popular union-busting strategy made possible by
the growth of contracting.  It used to be that companies and
governments employed workers directly.   If the workers
organized a union, they could stop competing with each other
and demand a decent wage for everyone.  Today, however,
companies and governments "outsource" much of their work to
contractors.  For example, the City contracts out school
transportation to twenty or so private companies.  These
little companies compete with each other for contracts, and
the law requires the City to pick the lowest bidder.  How can
the companies bid low?  Cutting wages and benefits is the
easiest way.  If the union wins decent wages from some
companies, other - nonunion - companies will enter the field
and drive wages down.  That is why the union lobbies the City
for job security protection.  As a technical legal matter, the
companies are the employers, but - in reality - everyone knows
that the City is the only party that can effectively grant
decent wages and job security.

Not only Bloomberg, but also the bus companies are seizing
upon this technicality.  The companies have filed a charge
with the National Labor Relations Board (NLRB) claiming that
the union is engaged in an illegal "secondary strike."  This
charge highlights a fundamental unfairness in American labor
law.  Workers are banned from applying strike pressure to
anybody other than their immediate employers (in this case the
bus companies) even if somebody else (here, the Bloomberg
administration) actually controls the workers' conditions.

For this reason, the International Labor Organization has
determined that the U.S. ban on secondary strikes violates
international standards.  Unfortunately, international
standards - though binding in theory - are not enforceable.
If the NLRB finds that the union is actually striking against
the City (an issue that will hinge partly on what happened
behind closed doors at bargaining meetings), then it will be
required by law to seek a court injunction banning the strike.
At that point, the school bus drivers will face a dilemma
similar to the one faced by striking New York City subway
workers in December of 2005.  Back then, Transport Workers
Local 100 defied an injunction, and local President Roger
Toussaint aptly compared the strikers to Rosa Parks.  Whether
the defiance resulted in victory or defeat is still disputed
today, but there is no doubt that Local 100 merits respect
from all proponents of justice in its principled assertion of
the fundamental right to strike.