Beth Fertig is the contributing editor for education, covering the New York City public school system for WNYC on air and online at SchoolBook.org. She has covered education in the city for more than 15 ...
Legal Standoff Over Employee Protections at Heart of Strike
Tuesday, January 15, 2013 - 05:32 PM
Members of Local 1181 Amalagamated Transit Workers union, representing school bus drivers and assistants, said they are striking because the city removed certain employment protections in the current bus contracts now up for competitive bid. The protections have been debated before, and the current standoff is more about legal interpretation than a typical labor dispute.
The issue of employment protection provisions, or EPP's, resurfaced because of a recent legal ruling from the state's top court, and the city's desire to cut costs in school bus contracts, which now amount to over $1 billion a year. Lawyers representing both sides told SchoolBook the ruling is quite clear. The problem is they see it quite differently.
In 2011, New York's Court of Appeals found the employee protections illegal. Judge Jonathan Lippman wrote that a "brief look at the history of New York City's public busing contracts since 1979 suggests that, in practice, the EPP's have had anti-competitive and cost-inflating effects."
The employment protection provisions allow a worker whose route is dropped by one bus company to maintain his or her salary, pension and seniority when hired by another company. These protections date back to 1965. When the city removed them from its school bus contracts in 1979, the union struck for 14 weeks. The protections were then reinstated as part of the settlement that ended the strike and the bus companies continued getting contracts with the city.
But things changed after the city's Department of Education took over pre-kindergarten bus routes from the Department of Transportation in 2006. The city inserted employment protections into these new contracts. Some bus companies objected and took the city to court. They argued that the employment protection provisions would cause bidders to inflate their bids, to cover the added costs of hiring Local 1181 workers based on seniority. The city defended the protections as a way to ensure the quality and continuity of service. The court ruled in favor of the companies in 2011.
The union claims Judge Lippman's ruling only applied to the pre-kindergarten bus contracts at issue, which is why it withdrew a similar threat to strike last year. It points to this sentence in the ruling as evidence: "Based on the foregoing, we find that the D.O.E. has not met its burden of demonstrating how EPP's reduce costs or prevent disruption of service."
"There's never been a court decision that says all EPP's are illegal," said Richard Gilberg, who represents Local 1181. Gilberg said the ruling applied only to a specific case involving a specific industry - pre-K busing - where there have never been employment protections, unlike in K-12 busing. And he said the ruling left the door open for the city to preserve the EPP's if it could prove they save money or prevent a disruption of service.
Joshua Freeman, a labor historian at the City University of New York, agreed there might be some murkiness to the ruling. "If the case was re-argued over a similar clause in a different contract, presumably a different, stronger case might be made" for preserving the employee protections, he said. "Not that it necessarily would win."
The city and the union can't take the issue to court again, however, because it's already gone to the state's highest court. "There's only one Court of Appeals opinion and it is very, very clear," said union attorney Gilberg.
Clear to each side, perhaps, but with a completely different meaning.
The city now spends more than a billion dollars a year to bus over 150,000 students. The next batch of bus contracts, which expire in June, affect about 20,000 special education students. But there will be more contracts expiring over the next year, posing a threat to the union. If more bus companies enter into contracts that don't guarantee worker protections, that could potentially affect the union's pension contributions.
Lawrence Hanley, ATU president, compared Mayor Michael Bloomberg to Wisconsin Governor Scott Walker and Michigan Governor Rick Snyder for wanting to weaken union protections.
But Bloomberg said earlier this week: "the city cannot legally offer what the unions are demanding," because of the court ruling. "Have you ever heard of a strike where one side is demanding something that the courts have ruled illegal? It is just meshugana, as we say in Gaelic."