CA1: bus drivers protected by NLRA

Five Star Transportation v. NLRB, No. 07-1316 enforces a decision of the NLRB, which found that Five Star Transportation “engaged in an unfair labor practice in violation of § 8(a)(1) of the National Labor Relations Act ("Act") when it refused to hire, or even consider for hire, six school bus drivers who wrote critical letters... to the Belchertown School District ("District") in an effort to dissuade it from granting Five Star a bus services contract...”  The decision below wasn’t a complete victory for the union, as “The NLRB concluded that Five Star had violated § 8(a)(1) only as to the six drivers [that wrote regarding their concerns that a new contract wouldn’t effect their salary], because only those drivers' actions were protected by the Act.”  The applicable drivers were ordered reinstated and given back pay with interest.  The petitioner argues that the drivers are not employees because they were then employed by the previous contract.  But, the First says that the statute, 29 U.S.C. § 152(3), covers them because Five Star is an employer.  They also argued that the letters were not “concerted activity” within the meaning of the Act, but the First points out that the record indicates that yes, indeed, not only was it concerted, but Five Star knew.    Finally, the First says that under In re Am. Golf Corp. (Mountain Shadows), 330 N.L.R.B. 1238, 1240 (2000), enforced sub nom. Jensen v. NLRB, 86 Fed. Appx. 305 (9th Cir. 2004), this really was a union dispute.  (The First analyzes all prongs of Mountain Shadows, so it is worth reading, if this is your area.)