Transdev Employees Seek to Reverse NLRB Ruling, Decertify OPEIU

Fairfax Connector bus

by James A. Bacon

Office workers with the Fairfax Connector are represented by the Office and Professional Employees International Union (OPEIU) Local 2. This fall some employees wanted to hold an election to decertify the union, and they gathered the number of signatures required by the National Labor Relations Board (NLRB), but an NLRB director in Baltimore blocked the petition. Now the National Right to Work Foundation (NRW) has taken up the cause of the dissident employees.

Employee Amir Daoud is asking the NLRB to overturn the so-called “contract bar,” the non-statutory NLRB policy cited to halt the election. The contract bar forbids employees from ousting a union for up to three years after their employer and union finalize a bargaining contract.

Whatever the outcome of this particular petition, Virginia workers are likely to see more incidents like it. With Democrats in control of the General Assembly and all three statewide offices, organized labor is targeting the state’s Right to Work law, which allows employees of a bargaining unit to opt out of union membership.

Here’s the background of the Fairfax Connector dispute. In April 2019 the Transdev Group, an international company based in Paris, France, won the contract to operate and maintain the Fairfax Connector bus network for a period of five years, with a 10-year option. Negotiations with the OPEIU ensued. After almost a year of talks, the OPEIU in June presented a contract for approval but Transdev employees voted it down.

In October, according to the NRW filing, “a Union representative informed certain [employees] via teleconference that he had negotiated a new agreement” and “intended” to sign it without a ratification vote. He did not tell employees when he planned to sign it.

Following news of union officials’ plan to accept the the contract without employee consent, Daoud filed a decertification petition on November 10, 2020. Some time later, he and his coworkers were informed that union agents had signed the contract with Transdev several days previously, on Oct. 31.

In dismissing the petition for a decertification election, according to the NRW summary, officials in NLRB’s Region 5 in Baltimore ruled December 22 that the “contract bar” applied because the petition was submitted after the contract was signed.

In its Request for Review to reverse the decision, NRW argued that Daoud and his colleagues had no way of knowing whether, or when, that signing would occur. The “contract bar,” NRW argues, is “contrary to the paramount objectives of employee self-representation and free choice” and “has the effect of forcing unwanted representation on employees for as long as three years.”

Commenting on the case, National Right to Work Foundation President Mark Mix said:

The facts of this case demonstrate exactly why the contract bar should be eliminated. After workers voted to reject an earlier proposed union contract, union bosses surreptitiously entered into a contract behind workers’ backs in an attempt to ‘game the system’ and use the ‘contract bar’ to block workers from voting them out. The ‘contract bar’ is an affront to the federal labor law’s supposed protection of employee free choice. It merely serves to entrench self-serving union bosses even when there is clear evidence that the very workers that they claim to represent want them gone.

Bacon’s bottom line: Labor unions are a business. The men and women who manage labor unions provide a service to union members — representing them in their dealings with employers — in exchange for which they collect dues. The more dues-paying members in the union, the more pay and perks the union bosses can get. Their incentive is to keep workers in the union whether they want to belong or not.

Unions are a classic expression of the “agent” problem. In the business world, it is widely acknowledged that there is a conflict between management and shareholders. Senior executives (the agent) seek to maximize their own good (pay, bonuses, perks, golden parachute contracts), often at the expense of shareholders. Much time and effort has been expended on figuring out how to align the interests of senior executives/agents with those of the shareholders.

A similar problem exists with unions. Union executives (the agent) seek to maximize their own good, often at the expense of their members they represent. The institution that governs organized labor in the U.S. is the National Labor Relations Board. The NLRB concerns itself mainly with mediating between labor and employers. Employers have the resources to hire lawyers and lobbyists to ensure that their interests are represented in NLRB proceedings, the enactment of laws and formulation of regulations. Union members have no such resources. The OPEIU bosses know how to work the system to their advantage; rank-and-file Transdev workers do not.

Union membership in the private sector is experiencing a long-term decline. In 2019 unions represented only 6.2% of the private-sector workforce nationally, but it represented 33.6% of public-sector workers. Union market share continues to erode in the private sector. But unions continue to make inroads in the public sector, especially in Democrat-dominated states where unions and Democrats enjoy a political symbiosis. Organized labor helps elect Democrats; Democrats use their political clout to benefit organized labor.

As a Right to Work state now dominated by Democrats, Virginia represents a growth opportunity for organized labor. Unions have given $2.6 million (funded by member dues), to Virginia political campaigns in 2020-21, according to the Virginia Public Access Project. As union influence in Virginia expands, expect that number to grow.


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13 responses to “Transdev Employees Seek to Reverse NLRB Ruling, Decertify OPEIU”

  1. Nancy_Naive Avatar
    Nancy_Naive

    11:59:59 a more perfect Union.

    1. TooManyTaxes Avatar
      TooManyTaxes

      His address seemed to say “Surrender; do it my way and we will have unity.”

      I’m extremely glad to see Trump gone. But just as the Democrats went after Trump on Day One, I want to see Republicans go after Biden every single day of his presidency, especially since Biden picked a religious bigot for Vice President. Imagine if Harris would have said that a member of Jewish, Muslim, Buddhist or Hindu organization was disqualified from judicial office. But this country continues to harbor anti-Catholic bigoty, even with Biden.

      And never forget that a religious bigot took the second spot in Germany in 1933. Look where that ended.

  2. Nancy_Naive Avatar
    Nancy_Naive

    11:59:59 a more perfect Union.

    1. TooManyTaxes Avatar
      TooManyTaxes

      His address seemed to say “Surrender; do it my way and we will have unity.”

      I’m extremely glad to see Trump gone. But just as the Democrats went after Trump on Day One, I want to see Republicans go after Biden every single day of his presidency, especially since Biden picked a religious bigot for Vice President. Imagine if Harris would have said that a member of Jewish, Muslim, Buddhist or Hindu organization was disqualified from judicial office. But this country continues to harbor anti-Catholic bigoty, even with Biden.

      And never forget that a religious bigot took the second spot in Germany in 1933. Look where that ended.

  3. TooManyTaxes Avatar
    TooManyTaxes

    Labor unions are nasty entities in a non-right-to-work state. When I was in high school and college, I worked for Montgomery Ward in Minnesota. The Company had a contract with the Teamsters. When I was hired, I had to join the union or to pay equivalency dues. Coming from families that had a strong and long background with unions, I thought this was fine.

    I worked fulltime summers and Christmas breaks and part-time the rest of the year. Well almost. The Company did inventory in late January to early February. But right after inventory was completed, the Company laid off all the part-timers. We wouldn’t get called back until sometime in April.

    Despite not working, laid-off employees were still responsible for union dues or they must withdraw from the union. Reinstatement involved payment of a $75 fee to the union. Keep in mind that the union wage was $2.25 an hour. I couldn’t afford to pay the fee and stayed an unemployed, but “active” member of the Teamsters.

    Returning to part-time work, my back union dues were withheld. I would get paystubs for $0 for the first few weeks. Between paying current and back union dues and taxes, I worked for nothing.

    This is the kind of crap workers have to accept when there is no right-to-work law. I challenge any union supporter to justify charging union dues to the unemployed and explaining how it cannot happen to workers today. (Needles to say, I expect my post to be ignored.)

    I have no trouble with people voluntarily joining a union. But no person should be required to accept the abuse unions impose on their members by action of law. To this day, I despise labor unions.

    My wife, who is a union believer and Democrat, would not allow my two kids to join the union when they worked at Giant during school. She said the unions wouldn’t provide any benefits for part-timers. I wish I would have had that choice. Right-to-work should be a constitutional right in Virginia.

  4. TooManyTaxes Avatar
    TooManyTaxes

    Labor unions are nasty entities in a non-right-to-work state. When I was in high school and college, I worked for Montgomery Ward in Minnesota. The Company had a contract with the Teamsters. When I was hired, I had to join the union or to pay equivalency dues. Coming from families that had a strong and long background with unions, I thought this was fine.

    I worked fulltime summers and Christmas breaks and part-time the rest of the year. Well almost. The Company did inventory in late January to early February. But right after inventory was completed, the Company laid off all the part-timers. We wouldn’t get called back until sometime in April.

    Despite not working, laid-off employees were still responsible for union dues or they must withdraw from the union. Reinstatement involved payment of a $75 fee to the union. Keep in mind that the union wage was $2.25 an hour. I couldn’t afford to pay the fee and stayed an unemployed, but “active” member of the Teamsters.

    Returning to part-time work, my back union dues were withheld. I would get paystubs for $0 for the first few weeks. Between paying current and back union dues and taxes, I worked for nothing.

    This is the kind of crap workers have to accept when there is no right-to-work law. I challenge any union supporter to justify charging union dues to the unemployed and explaining how it cannot happen to workers today. (Needles to say, I expect my post to be ignored.)

    I have no trouble with people voluntarily joining a union. But no person should be required to accept the abuse unions impose on their members by action of law. To this day, I despise labor unions.

    My wife, who is a union believer and Democrat, would not allow my two kids to join the union when they worked at Giant during school. She said the unions wouldn’t provide any benefits for part-timers. I wish I would have had that choice. Right-to-work should be a constitutional right in Virginia.

  5. I’m having a number of problems with this case, probably because it’s been a while since I had any contact with NLRB law.

    1. Is the Fairfax Connector a government entity? If so, we don’t have a collective bargaining statute in Virginia in the public sector until May 2021. How was it that this contract got signed in the first place? Transdev has a history of resisting the union in other places.

    2. If it’s a private company, then I’m not understanding why the existing right to work law doesn’t apply. If it does, then the union can sign all the contracts it wants with the Fairfax Connector, but employees will not be bound to pay union dues and can’t be fired if they don’t. Section 14 of the NLRA prevents the enforcement of what’s called a union security clause, a clause which means “you can’t work here if you don’t pay union dues”. You aren’t required to be a formal member of the union under such clauses but you have to pay dues.

    I understand the GA tried to get rid of the Right To Work statute last year but failed. I don’t know whether they are trying again this year.

    3. I wonder if this case doesn’t fit into a Fair Rep case by the employees against their union. My problem is I can only connect Fair Rep cases in my mind with the failure of a union to arbitrate an employee dispute with the employer on behalf of the employee. Vaca v. Sipes, Scotus 1968. Here’s where it might get murky. I don’t recall whether a Fair Rep case can be brought against the union when it signs a contract the employees don’t want. Usually unions don’t go against the wishes of their membership, but See Contra, the Teamsters used to reject a contract only if there was a 70% employee vote against it.

    As a side note, how does an employee bring a Fair Rep case against the union if the employee is not a member in a Right to Work state? If you decide to become a member, then you are obligated to pay dues.

    4. Do we know whether the employees were advised by counsel? Decertification is a very tricky area of NLRA law. The employer has to tread a thin line with respect to what it can tell employees. Typically, the employer tells the employees to contact the Labor Board for information, typically the Regional Director’s office, in this case, in Baltimore. Then the employees have to rely on what the Board tells them. They may or may not get a sympathetic ear in the Regional Director’s office, depending on who is the Officer of the Day when the contact is made.

    1. The case is focused on the arcane issue of the “contract bar” — the restriction against holding a decertification election until three years after a contract has been signed.

      1. LarrytheG Avatar

        I’m not understanding either. If it is a non-govt entity then people do not have to belong to that union if they don’t want to.

        Is this some “new” change in Labor Law?

  6. I’m having a number of problems with this case, probably because it’s been a while since I had any contact with NLRB law.

    1. Is the Fairfax Connector a government entity? If so, we don’t have a collective bargaining statute in Virginia in the public sector until May 2021. How was it that this contract got signed in the first place? Transdev has a history of resisting the union in other places.

    2. If it’s a private company, then I’m not understanding why the existing right to work law doesn’t apply. If it does, then the union can sign all the contracts it wants with the Fairfax Connector, but employees will not be bound to pay union dues and can’t be fired if they don’t. Section 14 of the NLRA prevents the enforcement of what’s called a union security clause, a clause which means “you can’t work here if you don’t pay union dues”. You aren’t required to be a formal member of the union under such clauses but you have to pay dues.

    I understand the GA tried to get rid of the Right To Work statute last year but failed. I don’t know whether they are trying again this year.

    3. I wonder if this case doesn’t fit into a Fair Rep case by the employees against their union. My problem is I can only connect Fair Rep cases in my mind with the failure of a union to arbitrate an employee dispute with the employer on behalf of the employee. Vaca v. Sipes, Scotus 1968. Here’s where it might get murky. I don’t recall whether a Fair Rep case can be brought against the union when it signs a contract the employees don’t want. Usually unions don’t go against the wishes of their membership, but See Contra, the Teamsters used to reject a contract only if there was a 70% employee vote against it.

    As a side note, how does an employee bring a Fair Rep case against the union if the employee is not a member in a Right to Work state? If you decide to become a member, then you are obligated to pay dues.

    4. Do we know whether the employees were advised by counsel? Decertification is a very tricky area of NLRA law. The employer has to tread a thin line with respect to what it can tell employees. Typically, the employer tells the employees to contact the Labor Board for information, typically the Regional Director’s office, in this case, in Baltimore. Then the employees have to rely on what the Board tells them. They may or may not get a sympathetic ear in the Regional Director’s office, depending on who is the Officer of the Day when the contact is made.

    1. The case is focused on the arcane issue of the “contract bar” — the restriction against holding a decertification election until three years after a contract has been signed.

      1. LarrytheG Avatar

        I’m not understanding either. If it is a non-govt entity then people do not have to belong to that union if they don’t want to.

        Is this some “new” change in Labor Law?

  7. […] the union in question is corrupt and doesn’t deserve their support. Maybe they feel the union doesn’t effectively represent them. Maybe they disagree with the union’s political stances and would prefer that it stuck to […]

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