NSBA files brief in case involving outsourcing and collective bargaining
NSBA, Michigan’s Kent Intermediate School District, the National School Transportation Association, the Michigan Chamber of Commerce, and the Mackinac Center for Public Policy, have jointly filed an amicus brief in Dean Transportation v. NLRB, a case on appeal to the U.S. Court of Appeals for the District of Columbia Circuit. This court has jurisdiction over appeals of administrative decisions by many federal agencies. The issue in the case is whether, when a school board outsources student transportation services to a private company that hires drivers previously employed by the district, the company must bargain with the union to which the newly hired drivers formerly belonged as district employees or may incorporate the new hires into the union representing all of the company’s other drivers. When Michigan’s Grand Rapids Public School System’s (GRPS) outsourced its transportation services to Dean Transportation, the company hired many of GRPS’s former bus drivers and recognized the Dean Transportation Employees Union (DTEU) as their representative, rather than recognizing their previous union, the Grand Rapids Educational Support Personnel Association (GRESPA). GRESPA challenged this decision before the federal National Labor Relations Board (NLRB). The legal question is whether former GRPS drivers “accreted” to DTEU. The NLRB allows accretion “only where the employees sought to be added to an existing bargaining unit have little or no separate identity and share an overwhelming community of interest with the preexisting unit to which they are accreted.” In a ruling linked below, the NLRB found insufficient facts to support accretion in this case. The bus drivers who still work at the GRPS location do not share a day-to-day supervisor with other Dean Transportation drivers, the NLRB noted, and there was no evidence of employee interchange between drivers working at the GRPS location and other drivers.
The brief makes two arguments in support of Dean Transportation. NSBA joined only the second argument, a practice that is less unusual in briefs submitted to the D.C. Circuit, which strongly encourages amici to submit briefs jointly. The first argument, which NSBA did not join, concerns whether a previously public-sector bargaining unit should gain the power to strike under a successor private employer when, as here, it did not have this right under the public employer. The second argument is that the NLRB’s decision, by increasing the cost of outsourcing, effectively limits the options available to school boards in managing increasingly limited public resources. Specifically, the brief argues that: (1) by forcing private employers to inherit public schools’ labor relations and maintain separate agreements for groups of similar employees, the NLRB decision imposes substantial and unnecessary costs and impractical operational difficulties that may deter contractors from coming forward; (2) in some cases reducing the benefits of outsourcing non-instructional support services may prevent schools from properly fulfilling their primary mission of educating children; and (3) imposing barriers to outsourcing of school transportation services will have broader repercussions for public schools and their communities. Lead authors on the brief were Thomas Goldstein and Steven Wu of Akin Gump LLP.
NSBA et al. amicus brief
Dean Transp., Inc., 350 N.L.R.B. 4 (2007)