Local 1811 of the Amalgamated Transit Union (ATU), which represents approximately 8,800 bus drivers and matrons, will go on strike effective at 6 a.m. on Wednesday, January 16, 2013. This strike will impact up to 150,000 public and private school students in New York City.

While the Public Employees’ Fair Employment Act (the Taylor Law) makes it illegal for public employees in New York to strike, New York City school bus drivers are not public employees. They work for private transportation vendors that have contracts with the New York City Department of Education to transport students to and from school. As private-sector employees, the ATU bus drivers and matrons are not subject to the Taylor Law’s Prohibition of Strikes, Civil Service Law §210.

The ATU is claiming that the work stoppage is over student safety; however, the union is actually striking over the issue of job protection for its members. ATU Local 1811 wants the Department of Education (DOE) to include “employee protection provisions” in the bid specifications that it is issuing for the next round of transportation contracts for 22,500 children from New York City public and parochial schools in kindergarten through 12th grade who have special needs.

An employee protection provision would require a new transportation contractor that won a Department of Education bid to give hiring priority on the basis of seniority to those employees of private bus companies that lost employment when their employer lost a DOE contract. In essence, employee protection provisions are job security provisions for Local 1811 employees, who would be hired by the new vendor in the event that their employees lost the DOE contract.

However, in 2011, in In Re L&M Bus Corporation, 17 N.Y.3d 149 (2011), the New York Court of Appeals ruled that the DOE violated the public bidding provisions of the Education Law by including anticompetitive employee protection provisions in its bid specifications for transportation contracts for pre-kindergarten and early intervention students. Richard N. Gilberg, a union lawyer, is quoted in the New York Times as saying: “There has never been a court ruling that the employee protection provisions are, in all cases, illegal.” Similarly, Michael Cordiello, President of ATU Local 1181, made the following statement on Monday: “We know it is not illegal to put it in the bid.” While Mr. Gilberg is technically correct, the In Re L&M Bus Corporation decision did rule employee protection provisions illegal in connection with New York City bus transportation contracts. As long as the union clings to its parochial, self-serving interpretation of the law, this work stoppage may go on for some time.  

Mayor Michael R. Bloomberg announced that the city is ready with an array of backup steps to support children and their families. MetroCards will be provided to affected children who take yellow buses, for as long as the strike might last, as well as to the parents of students in kindergarten through second grade. For those students whose schools are not accessible by public transportation, the city will reimburse for mileage or cabs. Students will also be granted a two-hour reprieve on lateness or be excused altogether for absences caused by the strike.

For more information on employee protection provisions or how this may impact your business, please contact: 

• Sean P. Beiter (716.566.5409; sbeiter@goldbergsegalla.com)
• Or another member of Goldberg Segalla’s Labor and Employment Practice Group