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State Labor Board Dismisses Owner-Operators Complaint Against School District

The State Board of Labor Relations has dismissed a complaint filed by Newtown’s owner-operators against the Board of Education. Carey Shierloh, a representative for the complainants and a former town owner-operator, said she and several other former drivers she spoke with were very disappointed by the decision.

The complaint made to the State Board of Labor Relations by the owner-operators, individually contracted bus drivers responsible primarily for regular education routes in town and maintaining privately owned buses, alleges the Board of Education failed to bargain with the contractors prior to deciding whether to open the 2012–17 transportation contract for bids.

The owner-operators were represented by attorney Henry F. Murray at their hearing, and the Board of Education was represented by attorney Floyd Dugas.

The complaint, filed on behalf of the owner-operators with the State Board of Labor Relations, alleged the district violated the Municipal Employees Labor Relations Act (MELRA). It was issued by Mr Murray, and alleges a violation of Section 7-470 (4) of MELRA in that the board failed to bargain with the owner-operators through their elected contract committee with respect to its decision to subcontract school bus driving responsibilities.

On June 9, 2011, the Newtown owner-operators filed the complaint, and hearings commenced on December 29, 2011, and continued the following March 3, March 30, and May 9. Both parties also filed post-hearing briefs which were received on July 20, 2012, according to the DOL document.

During its post-hearing deliberations, labor department officials determined that absent an adequate defense, an employer commits an unlawful refusal to bargain and a prohibited practice when it unilaterally subcontracts or transfers bargaining unit work to nonbargaining unit personnel.

The state officials also determined that individuals are employees under the Act if their employment relationship is a dependent, subservient relationship characterized by inequality of bargaining power in controversies over wages, hours, and working conditions.

It additionally determined the School Board did not commit a prohibited practice in violation of the Act when it assigned certain work formerly performed by Newtown owner-operators to All-Star Transportation, which won a five-year bid to replace the owner operators beginning last fall.

In making the complaint, the owner operators claimed that the School Board violated the Act by soliciting bids for student transportation and by awarding such work to All Star. Specifically, the complainants contended that the former group of owner operators was “a de facto labor organization and its members are School Board employees; that the School Board has long recognized [the owner-operators] as the exclusive collective bargaining representative of its members; and that by failing to bargain over the transfer of busing services the School Board violated the Act.”

Independent Contractors

The Board of Education responded that individual owner-operators were independent contractors rather than employees within the scope of the Act. The school board also contended that since the drivers had not acted as the exclusive collective bargaining representative of its members, or been recognized or certified to serve in such capacity, “they are not an employee organization within the meaning of the Act and as such is without standing to pursue the complaint.”

During the course of the hearings, the school board also contended that the drivers waived whatever rights they had to bargain over the transfer at issue.

“Based on the record before us we agree with the School Board that Complainant and its members fall outside the scope of the Act and therefore dismiss the complaint,” the hearing document states.

It went on to say that the owner-operators do not consistently reflect the ordinary characteristics of employees.

“The ability to use substitutes and to make other economic decisions impacting profit margins supports a finding that the owner operators are service providers rather than simple school bus drivers,” the document noted.

The labor hearing officials stated that “it is impossible to ignore the fact that Complainant never sought express recognition by the School Board [or certification by the Labor Board] or the absence of any evidence that owner operators sought worker’s compensation or employer funded health or pension benefits during the past 75 years.”

The officials stated the owner-operators, as a collective, are not entitled to relief unless the state can find that the owner-operators are employees, and that the collective owner-operators represent an “employee organization” according to related statutes; that the school board “recognized” the drivers as a collective bargaining representative under the law; and that the school board engaged in a prohibited practice when it contracted with All-Star to provide home to school student transportation.

“We find, for the reasons set forth above, that the owner operators are independent contractors and that as such, Complainant is not an employee organization within the meaning of the Act,” the officials concluded. “In so finding we do not diminish the laudable role [the] complainant and its contract committee has held for many years. Since neither the Complainant nor the owner operators are covered under MELRA we dismiss the complaint.”

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