The first hearing into the Newtown owner-operators' complaint against the school district got underway Thursday afternoon with lawyers making their opening statements in Wethersfield.
“This is admittedly an unusual case,” the owner-operators’ lawyer Henry Murray told the three-member state Board of Labor Relations near the start of a three hour hearing.
At issue is whether the Newtown school bus owner-operators are employees of the district, rather than independent contractors as language in their contracts identifies them. If the owner-operators are found to be employees, the question then moves to whether their collective bargaining rights were violated when the that begins in fall 2012 to All-Star Transportation.
The case is being closely watched by the owner-operators who will lose their livelihood if the All-Star contract proceeds as well as supporters of the decades-long tradition of having town residents own and operate the school district's bus system who see the labor dispute as the only chance of preserving the beloved system.
While the Board of Education has said provisions have been made in the All-Star contract should the owner-operators be deemed employees, Murray is arguing that putting the work out to bid was a violation of the owner-operators' collective bargaining rights.
"The bidding out of the work was a complete departure of historic practices," he said.
To support the argment that the owner-operators are employees, Murray said the school district pays for liability insurance, fuel, two-way radios and in some cases health insurance. The district also holds driver training, maintains driving records, administers random drug testing, disciplines drivers when necessary and provides close supervision of the drivers, Murray said.
In Connecticut, the distinction between employees and independent contractors is governed by their relationship with one another and not simply by what is written down on tax forms or other documents, the lawyer said.
Murray said in this case, the owner-operators were subservient to the school district as employees rather than "at arm's length" contractors and that the owner-operators were treated as if they were a collective bargaining unit.
"The board will see evidence that throughout this period of time the respondent and complainant bargained with each other, the respondent has consistently dealt exclusively with the contract committee in negotiating mid contract changes and not with individual members," he said, adding that the school district's own transportation consultant raised doubts as to whether the owner-operators could be viewed as independent contractors.
At the same time, the school district's lawyer Floyd Dugas argued there were many other details of the relationship that were not of an employer-employee nature. For instance, the drivers must pay for their own workers compensation insurance and about a third of the 33 owner-operators have formed limited liability companies and report their income to the state and federal government in that manner rather than as individuals.
Murray later countered through the testimony of owner-operator Carey Schierloh that the LLC formation was at the request of the school district.
Dugas also argued the owner-operators may be saying they are a collective bargaining unit – but now, only after a request for bids, which the lawyer referred to as a "request for proposal," was issued and All-Star was awarded the contract – rather than at any other time in their long existece.
"When the school district, realizing it has the third highest transportation costs in the state and that local ordinances required competitive bidding going out for a bid for certain types of contracts – when the school district went out and did that for the first time in 75, 80 years, just when the RFP is posted for the very first time, we hear the words 'employees' and 'labor organization,'" Dugas said. "It was never asserted until the RFP was attempted."
In addition, Dugas argued it would be hard for the owner-operators to say that their collective bargaining rights were violated when they submitted a bid in response to the RFP.
"It was made plain and clear to these folks, there would be an RFP and ironically, they submitted a bid," he said. "So there's no surprise here. There's no demand to bargain and so we think that is a third every significant hurdle."
While Schierloh offered testimony to support Murray's argument, her cross examination by Dugas was postponed to a future meeting, and expected to take hours, the lawyer said.
The labor relations board is expected to meet Feb. 15 and March 7 with the possibility of a third hearing tentatively set for March 15.
Editor's note: This article has been updated to insert the term, "request for proposal," which was used by lawyer Floyd Dugas to refer to the request for bid issued by the school district for a new bus contract. For a video of the opening statements by both lawyers, go to this article,