There is so much misinformation surrounding the employee protections provision (EPP) that lay at the heart of the current walkout by yellow school-bus employees. At the prompting of Errol Louis, the respected host of NY1 Road to City Hall, I have read and re-read the NYS Court of Appeals decision (L&M Bus Corp v. NYC DOE) invalidating the inclusion of the EPP in the proposed Pre-K/Early Intervention (EI) pupil transportation bid documents. The Court found that DOE did not meet its burden of demonstrating how EPPs reduce costs or prevent disruption of service in provision of Pre-K/EI transportation services.
In that case, the State Court of Appeals cited several reasons for invalidating the nearly half century-old provision. The Court essentially removed a loaded gun from the head of Mayor Bloomberg (and Schools Chancellor Walcott).
The Court held that “EPPs are unique.” Further, “DOE has not pointed to any other municipality in the nation that has imposed a requirement that successor contractors retain the employees who were laid off when the previous contractor lost the bid at the same salary and benefit levels that the predecessor contractor provided.”
- The EPPs that DOE introduced to its School–Age contracts in 1979 impact the entire industry of pupil transportation services provided under contract with DOE. They apply to all contracts for pupil transportation for all public schools throughout the City and, in practice, have remained in place continually from 1979 to 2011.
- In the case of a new contractor, the EPPs proscribe the use of the contractor’s workforce altogether, as long as a single employee of the predecessor contractor is available for employment.
- EPPs dictate who the contractor must hire and what salary and benefits they must provide and make these matters non-negotiable.
- In striking the EPPs, the court reasoned, “The anticompetitive impact resulting from the restriction of the vendors’ autonomy to hire nonunion workers subjects these arrangements to the same scrutiny applied to [project labor agreements (PLAs)].”
- “PLAs and other procedures having an anticompetitive effect on the bidding process can be justified only by proof that they are designed to save the public money by causing contracts to be performed at smaller cost or without disruption.”
- EPPs, like PLAs, must be shown to comply with the spirit of competitive bidding laws.
- Moreover, the Court found that the City failed “to refute the facially anticompetitive features of the EPPs, which tend to invite cost-inflation and discourage new bidders from attempting to compete with the long-term contract holders.”
In that 2011 case, the court noted that (1) the likelihood of a strike disrupting Pre–K/EI operations was unclear since most of the Pre–K/EI vendors are not unionized and (2) the bidding laws are not the proper avenue for preventing the displacement of experienced workers. “Indeed, this goal could be achieved by substantially less restrictive measures, such as the imposition of an experience requirement in the bidding specifications,” wrote the Court.
The Court found that DOE did not meet its burden of demonstrating how EPPs reduce costs or prevent disruption of service in provision of Pre-K/EI transportation services. But nowhere in the decision does the Court countenance the union using the disruption of service (i.e., calling a strike) to force inclusion of the EPP.
The City can’t produce an economic justification for the EPP, simply because one doesn’t exist. The EPP has nothing to do with pupil safety or having experienced drivers and matrons. It is purely a concession granted through means of extortion and stress on the parents of special-needs students.
Essentially, the City held old/new private contractors hostage to an anti-competitive agreement it made under duress. Nowhere in the nation or any free market is this acceptable. Agreements made under duress never have the force of law.
Despite ATU Local 1181’s disingenuous assertions, the EPP cannot be justified because for half a century the City has been unable to test the free market. In 1979, when Mayor Koch and Chancellor Macciarola tried to re-bid the contracts without the EPP, they were forced into accepting its continuation under duress after the nearly four weeks-long labor strike.
Lastly, labor radicals who seek to romanticize this extortion as a “fight against privatization and an austerity program” are simply wrong.
Finally, enabling the City DOE to seek competitive bids for its entire pupil transportation program—despite a possibly lengthy strike—is not the beginning of a long ago privatized school busing service, but the chance to bring savings and rationality to those services. And as the Court advised, the DOE is imposing an experience and training requirement in the bidding specifications,