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Refusal to Hire for Critical Letters Violates NLRA

May 22, 2008

In January 2003, Belchertown School District in Massachusetts began accepting bids for a new bus contract. Current drivers were represented by Local 1459 and covered by a collective bargaining agreement. The district’s bid required that any new employer afford current drivers "first consideration for employment," but did not require compliance with that collective bargaining agreement. When Five Star submitted a low bid, the union complained to the district that Five Star could not maintain current wages, benefits and safe and effective service. It also requested recognition from Five Star. Fifteen of the current drivers wrote letters to the district expressing similar concerns.

   After Five Star was awarded the new contract, it refused to consider 11 applicants based solely on the critical letters.

   The union filed a National Labor Relations Board charge, alleging a violation of the National Labor Relations Act. An administrative law judge held that Five Star violated the NLRA §8(a)(1) with respect to nine of the 11 drivers. On review, the NLRB held that only those drivers whose letters primarily raised employment-related concerns had engaged in protected activity.

    Five Star sought judicial review from the U.S. Court of Appeals for the 1st Circuit in Boston, which held that the letters from the 11 drivers who complained to the district about awarding Five Star the new contract constituted protected activity, and further that the letters did not lose protection as "disloyal, reckless or maliciously untrue." Five Star Transp. Inc., 1st Cir., No. 07-1316 (3/31/08).

    Impact: Employees who object to employer practices that affect the employment relationship, such as matters over wages, hours and other conditions of employment, are engaging in protected activity under the NLRA.

Workforce Management, May 19, 2008, p. 10 -- Subscribe Now!