By: Laura Ahern
A while ago, fellow Journal member Lauren Murphy wrote about the start of the New York City bus strike in which more than 8,000 New York City school bus drivers and aides went out on strike in a dispute involving job security guarantees in city contracts. The strike, which began on January 16, 2013 involves drivers and special education escorts from Local 1181 of the Amalgamated Transit Union and the bus companies who contract with the city. The strike has marked the driver’s first strike in more than three decades.
While the strike is still ongoing, this week the NLRB Office of General Counsel has responded to a charge filed with the NLRB Brooklyn office by a group of bus companies alleging that the strike is unlawful under Section 8(b)(4) of the National Labor Relations Act. Section 8(b)(4) of the NLRA prohibits unions from striking secondary employers in order to pressure the primary employer.
Sec. 8. (b) [Unfair labor practices by labor organization] It shall be an unfair labor practice for a labor organization or its agents-
(4)(i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is.
The bus companies argued that the union’s primary dispute was with the New York Dept. of Education, and not the bus companies themselves. But, the bus drivers and aides are not directly hired by the city; they are hired for the companies which then contract with the city.
The dispute stems from the decision by Mayor Michael Bloomberg to put the bus contracts up for bid for the first time since 1979 in an effort to cut costs. In their bidding process, the bus companies, not the city, set the salaries and benefits for the drivers and the goal in putting the bus routes out for competitive bidding was to save tax money for the city. The union seeks job protections (EPPs) for current drivers in the new contracts, but the city cites the New York State Court of Appeals decision as barring it from including such provisions because of competitive bidding laws, which the union argues is not the case.
The General Counsel has found that the strike does not violate the NLRA because the union has a primary labor dispute with the bus companies. The Advice Memorandum, issued February 1, 2013, found that the bus companies, which maintained collective bargaining agreements with the union for many years before they expired in December, are primary employers in the labor dispute, along with the Department of Education.
In the instant case, it is clear that the Union has a primary labor dispute with the Charging Party Employers as to whether the EPPs will be included in the parties’ collective bargaining agreements, as the Union has proposed. This primary dispute directly involved the job security and other terms and conditions of employment of the employees of the Charging Party Employers. Significantly, while the Charging Party Employers have not agreed to the Union’s proposal that the collective-bargaining agreements incorporate the EPPs, the Charging Employers do not deny that they have the ability to do so. Indeed, the parties themselves have made clear the primary nature of the dispute by their acknowledgment in their past collective-bargaining agreements that the job security provided by the EPPs is “an integral part” of the agreements, as well as by the express provisions permitting the Union to reopen the agreements and to strike the Charging Party Employers in the event DOE promulgates any contract bid without the EPPs. Given this primary labor dispute with the Charging Party Employers, we conclude that the Union has not violated Section 8(b)(4) by its strike.
Accordingly, the Regional Office will dismiss the charge alleging an illegal secondary strike.
While the ruling is good news for the striking bus drivers, it allows the strike to continue while no resolution appears to be in sight.
 NYC School Bus Drivers Strike Over Job Security, USA Today (Jan. 16, 2013, 1:04 PM), http://www.usatoday.com/story/news/nation/2013/01/16/nyc-school-bus-drivers-strike/1839011/.
 Memorandum from Barry J. Kearney, Division of Advice, Office of the General Counsel to James G. Paulsen, Regional Director, Region 29 (Feb. 1, 2013) available at http://mynlrb.nlrb.gov/link/document.aspx/09031d4580f79112
 National Labor Relations Act, 29 U.S.C. § 158(b)(4) (1935).
 Memorandum, supra note 4.
 NYC School Bus Drivers Strike Over Job Security, supra note 1.
 Eileen AJ Connelly & Verena Dobnik, School bus drivers go on strike in New York City, Wall Street Journal (Jan. 16, 2013, 2:37 AM), http://online.wsj.com/article/AP68c2aaaeff244a3f90c30136fdd59491.html?mod=WSJ_ article_outbrain&obref=obinsite
 See L&M Bus Corp. v. New York City Dept. Education, 2008 NY Slip Op 31246 (Apr. 22, 2008).
 Memorandum, supra note 4.