^ Carmen’s Union’s James O’brien opposes a Fiscal Control Board for the T,  threatens to invoke the Federal Transit Act

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Yesterday’s Boston Globe reported that the Carmen’s Union, which represents most MBTA workers, refuses to accept the Fiscal Control Board that Goveror Baker and the legislature seek to enact, and by which the Governor will possess full power to reform every part of the MBTA’s operations.

Said their President James O’brien, the Carmen will invoke a 1974 Federal law that protects transit workers throughout the nation from having any of their bargaining rights amended — a law that authorizes the Federal government to withhold Federal funds assistance from any authority seeking to amend those worker protections. In the case of the MBTA, those funds amount to several billions of dollars. O’Brien is saying, in essence, that he will crash the T rather than compromise even one part of the Carmen’s bargaining agreements.

It’s worth reading the transit law that O’Brien threates to invoke. So here it is — the statutory requirements of Section 13(c) of the Federal Transit Act, as codified at 49 U.S.C. § 5333(b):

“It shall be a condition of any assistance under section 3 of this Act that fair and
equitable arrangements are made, as determined by the Secretary of Labor, to protect the
interests of employees affected by such assistance. Such protective arrangements shall
include, without being limited to, such provisions as may be necessary for (1) the
preservation of rights, privileges, and benefits (including continuation of pension rights
and benefits) under existing collective bargaining agreements or otherwise; (2) the
continuation of collective bargaining rights; (3) the protection of individual employees
against a worsening of their positions with respect to their employment; (4) assurances
of employment to employees of acquired mass transportation systems and priority of
reemployment of employees terminated or laid off; and (5) paid training or retraining
programs. Such arrangements shall include provisions protecting individual employees
against a worsening of their positions with respect to their employment which shall m no
event provide benefits less than those established pursuant to section 5(2)(f) of the Act
of February 4, 1887 (24 Stat. 379), as amended. The contract for the granting of any
such assistance shall specify the terms and conditions of the protective arrangements.”

The language of Section 13(c) seems inescapable. If Baker’s T reform seeks to amend even one bargained agreement with the Carmen, the Secretary of Labor can move to withhold Federal transportation assistance from that transit system.

Section 13(c)(1) and (2) leave no room whatsoever for unilateral alterations. But two of the proposed changes that the Carmen object to may not fall under a bargaining agreement. First : is the operation of the MBTA pension system a contractual right ? Second, is the Pacheco Law — an entirely separate, state enactment regarding the process needed before T workers’ work is outsourced — any part of the Carmen’s actual bargaining agreement, or is it, instead, a separate protection, entirely state-sanctioned, and thus not covered by the Federal law O’Brien threatens to invoke ?

The one bargaining right assured to  the Carmen by the Transit Act is binding arbitration. It’s specifically mentioned in therein.  Some have argued that as no other public worker union in Massachusetts enjoys unreviewable binding arbitration, why should the Carmen have it ? True : all other public worker unions arbitration rights are subject to review by city councils, mayors, and town managers. Why should T workers not see their arbitration awards subject to review ? Boston Mayor Marty Walsh, when he was a state representative, introduced legislation to remove the reviewability of arbitration awards; it went nowhere. Public sentiment has moved in the opposite direction.

Nonetheless, the Federal Transit act stands. O’Brien is free to invoke it to safeguard binding arbitration. Does he really want to do that ? Maybe he does.

My own opinion is that the Governor and legislature should forge ahead with the top to bottom T reform law they are likely to enact; and let the Carmen do their damedest. The law they seek to invoke does not apply at all unless an actual move is made by the Fiscal Control Board (FCB) to make the unilateral changes O’Brien complains of. Meanwhile, the state can petition the Department of Labor for an administrative opinion letter as to what the FCB can and cannot do.

Meanwhile, I am not sure that O’Brien will, in fact, invoke the Federal Transit Act and its withholding of Federal funds assistance. To do so would put the Carmen at odds with the entire riding and taxpaying public, as well as with the legislature and governor. It would be the end for any public support at all for T workers and their bargains, at a time when public unions do not look particularly good to most voters. It would be a huge mistake for the Carmen — for any public workers’ union — to take such a course.

NOTE : for those who want to read the emntire Federal Transit Act, and learn its legislative history, as a significant study in public policy as it operates upon our nation, here’s a link to the entire thing :

Click to access tcrp_lrd_04.pdf

—- Mike Freedberg / Here and Sphere