By Tim Ryan

Law360 (October 30, 2020, 7:46 PM EDT ) A group of laid-off Oregon school bus drivers can't vote to form a union, a regional National Labor Relations Board official has ruled, because the uncertainty of the COVID-19 pandemic makes it unclear when schools will reopen and allow them to return to work.

In a decision issued Thursday, NLRB Seattle office director Ronald Hooks dismissed a petition from Teamsters Local 206 seeking to represent the drivers, saying without a reopening date, the drivers don't have a reasonable expectation of returning to their jobs taking kids to schools in Oregon's Lake Oswego School District and are therefore ineligible to vote in a union election under NLRB precedent.

Because the drivers make up the entire proposed bargaining unit, Hooks said the petition had to be dismissed.

"The fluctuating conditions surrounding the COVID-19 pandemic have clearly created conditions that are beyond the employer's control that make it essentially impossible for the employer to predict when the employees might return to work," Hooks wrote.

Teamsters Local 206 filed the petition in August, seeking to represent roughly 64 STA of Oregon Inc. employees who drive school buses under a contract with the Lake Oswego School District. Under normal circumstances the drivers are laid off over the summer, but most come back to work when school resumes around Labor Day.

As with many school districts across the country, the COVID-19 pandemic caused the district in the Portland suburbs to shut down schools for in-person learning in March, making that yearly layoff for the drivers come earlier than usual. The bus drivers have yet to return to their routes, and the district is not expected to resume in-person instruction on Nov. 2 as it once hoped, according to the ruling.

Under an NLRB precedent called Apex Paper Box Co., workers can cast ballots in union elections if they were laid off with the expectation that they would return to work, but Hooks said the circumstances of the bus drivers' current layoff do not fit that description.

Beyond "ever-changing start dates optimistically provided" by the school district, Hooks said STA of Oregon has received no indication of when it might need to bring the drivers back. He noted health metrics from Clackamas County, where the Lake Oswego School District is located, put it in the first stage of Oregon's reopening plan, which requires full remote learning.

While previous rounds of layoffs and recalls are useful in determining whether a layoff is temporary under NLRB precedent, Hooks said the pandemic has rendered the cyclical layoffs and recalls the bus drivers are used to with each school year "largely irrelevant." Hooks noted the drivers will still be able to receive unemployment benefits and take on other jobs like they normally would during the summer.

Gene Blackburn, the secretary treasurer for Teamsters Local 206, said the union is disappointed in the ruling, adding that the drivers should be able to vote on unionizing because schools will eventually reopen. 

"It appears to me that the NLRB has taken an opportunity to deny working folks the right to representation and to form a union," Blackburn told Law360. 

Counsel for both sides did not immediately return requests for comment. Student Transportation of America also did not immediately return requests for comment.  

Teamsters Local 206 is represented by Caren Sencer and David Rosenfeld of Weinberg Roger & Rosenfeld.

STA of Oregon is represented by David Frenzia and John Folcarelli of Student Transportation of America Inc.

The case is STA of Oregon Inc. and Teamsters Local Union No. 206, case number 19-RC-265444, before the National Labor Relations Board.

--Editing by Jack Karp.

Update: This story has been updated with comment from the union.

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