No Wheeling and No Dealing: JCPS Driver Sickout a Risky Tactic for Public Employees in Kentucky

On Nov. 6, more than 140 bus drivers from Jefferson County Public Schools in Louisville (JCPS) called out sick, forcing the district to cancel 99 bus routes. While this is just the latest in a long line of transportation issues that have plagued the district this school year, it is the first time the drivers themselves have been the source of the district's frustration and headaches. 

According to Teamsters Local Union 783, JCPS bus drivers are protesting student discipline issues, overcrowded buses, and long hours, further saying they feel like they are not being heard by district leaders. Notably, the union denied calling for or sanctioning the sickout, or that it qualifies as a strike under the law.

For those wondering why such carefully chosen words might have been used and why we have not seen more union involvement on this front, when so many other unions in the state are not afraid to step up the plate, the answer can likely be found in Kentucky law and presents a good opportunity for Kentucky employers to brush up on federal and state labor law.

Unlike employees at private companies, who are covered by the National Labor Relations Act, employees in the public sector are not covered by federal law. Rather, most public sector employees only receive similar protection when conferred upon them by the law of the state in which they work. As such, public employee collective bargaining rights vary, ranging from non-existent (i.e. Georgia, South Carolina) to extremely robust (Illinois, Michigan, and California). 

And somewhere in the middle are states like Kentucky, which grant weak collective bargaining rights to various public sector employees in a piecemeal fashion. 

Under KRS 336.130, all public employees may “associate collectively for self-organization and designate collectively representatives … to negotiate the terms and conditions of their employment to effectively promote their own rights and general welfare.” 

For some employees, like firefighters, police, and corrections personnel, collective bargaining rights have been granted explicitly under separate Kentucky statutes. For these employees, government agencies must bargain with their unions in good faith. 

Others, like Kentucky teachers and university professors, who are only covered by KRS 336.130, are conditionally granted the right to collectively bargain, and may only do so if the agency, school district, or university, agrees to recognize and bargain with the employee's bargaining representative.  Since recognition of these unions is ultimately voluntary under state law, union demands and strategy are markedly different than in sectors where they have been afforded much greater protection.

Most importantly, under Kentucky law, all public employees are prohibited “collectively or individually, [from] engage[ing] in a strike or a work stoppage.” Employees who do so face potential discipline up to and including termination, while unions may face an unfair labor practice complaint under state law. 

While many JCPS bus drivers continue to take steps to express their frustrations with the district, the union is left in the precarious position of toeing the fine line between representing their member's needs while not endorsing (even tacitly) an action by individual employees that might be viewed as a prohibited strike – and could result in legal consequences for not only the union, but also its members. While the drivers undertake this risky strategy, they and the public, should not expect anything more than a cautious, metered response from the union leaving them with only broad generic statements in support and likely not much else.

More sickouts and further demonstrations are expected in the coming weeks in the district and, depending on how long such tactics last, are likely to come under legal scrutiny. But for now, these efforts, and the union's response, underscore some of the key legal differences between public and private sector employee bargaining rights.