Full opinion text
MEMORANDUM AND ORDER ON MOTIONS FOR PRELIMINARY INJUNCTIONS SKINNER, District Judge. I. STATEMENT OF THE CASE AND PRELIMINARY FINDINGS OF FACT In this action the plaintiff, Local Division 589, Amalgamated Transit Union (“Transit Union”) seeks declaratory and injunctive relief against the Massachusetts Bay Transportation Authority (“MBTA”) and its Chairman of the Board, and also against the Commonwealth of Massachusetts in the following respects: a. A declaration that chapter 405 of the Massachusetts Acts of 1978 (M.G.L. C.161A §§ 19 and 19C-G) (hereinafter “c.405”) is not effective to alter the procedure for interest arbitration contained in the Transit Union’s collective bargaining agreement. b. A mandatory injunction requiring the MBTA to proceed immediately to interest arbitration in accordance with the Transit Union’s collective bargaining agreement. c. A declaration that chapter 581 of the Massachusetts Acts of 1980 (hereinafter “c.581”) purporting to prohibit the MBTA from entering into collective bargaining on a number of particular issues is invalid. d. An injunction prohibiting the laying off of approximately 500 members of the Transit Union which is scheduled to become effective on Saturday, March 21, 1981. Boston Lodge 264 of District 38, International Association of Machinists and Aerospace Workers (hereinafter “Machinists’ Union”) has been allowed to intervene on behalf of machinists employed by the MBTA, 58 of whom are scheduled to be laid off on March 21. The Massachusetts Bay Transportation Authority Advisory Board (hereinafter “Advisory Board”) has appeared and argued in opposition to the positions of the plaintiff and the intervenor. The Machinists’ Union takes the same position as the Transit Union, except that with respect to lay offs it asserts protection under its contract which the Transit Union does not claim. It also seeks arbitration with respect to the lay off of its 53 members. The claims of the two unions are asserted under section 13(c) of the Urban Mass Transportation Act of 1964 (“UMTA”), 49 U.S.C. § 1609(c), the “13(c) agreement” executed by the MBTA in 1974 and the contract clause of the United States Constitution, Art. I, section 10. In July of 1980 the Transit Union initiated collective bargaining under the then-current provisions of its collective bargaining contract. Negotiations continued until the end of September 1980 without success. As provided in the collective bargaining agreement the parties then proceeded to interest arbitration in the manner specified in the agreement. Thereafter the MBTA refused to participate in the selection of the third arbitrator and asserted that it was without authority to arbitrate except in accordance with c.405 of the Acts of 1978. The matter was referred to the Secretary of Labor, who apparently took the position that the contract procedure was in force by reason of section 13(c). There was apparently some further backing and filling, but as of November the parties were at a stand-off: the MBTA was willing to arbitrate only in accordance with c.405 and the unions were willing to arbitrate only in accordance with the collective bargaining agreement. In November of 1978, the MBTA ran over its budget. The Governor exercised purported emergency powers to keep it running. In the course of the legal and legislative flurry that followed, the legislature enacted c.581 of the Acts of 1980. The Advisory Committee thereafter approved a budget for 1981 for the MBTA which was $7 million less than that for the previous year. The MBTA has scheduled cuts in service and the lay offs above referred to purportedly in an effort to reduce its expenses to the budgeted level. II. JURISDICTION Argument as to jurisdiction is foreclosed by the decision of the Court of Appeals in Local Div. No. 714, etc. v. Greater Portland, etc., 589 F.2d 1 (1st Cir. 1978), as is argument as to the existence of a claim upon which relief can be granted. In that case it was held that the union had the right to enforce the terms of section 13(c) of UMTA, which meant in effect the terms of the agreement entered into in compliance with that statute. The Court recognized that by reason of the authority delegated to the Secretary of Labor the agreement might well impose requirements on a transit authority broader than the minimum requirements specified in the statute. Accordingly, the terms of the agreement are the primary source of rights and liabilities, to which the statute and its legislative history provide only the most general guide. III. ABSTENTION The defendants and the Advisory Board all urge this court to abstain because of the pendency in the state courts of several actions relating to some of the same subjects. One of these cases is MBTA v. Adams, in the Supreme Judicial Court for Suffolk County, No. 79-388 Civil. That case was removed to this court but was remanded for lack of removal jurisdiction because the plaintiff could not have originated the case in this court. (Memorandum and Order, C.A. 79-2059-S). MBTA v. Adams is an action to set aside an “award” of an arbitrator which consists of a legal ruling that e.405 is invalid and ineffective to alter the arbitration procedures contained in the collective bargaining agreement. MBTA v. Adams could be resolved in terms of the arbitrator’s authority with consideration of the underlying federal questions. The second case is Local 589, etc. et al. v. MBTA, Suffolk Superior Court, C.A. No. 45919. That case has so far been concerned with the parties’ rights under the extension period of the collective bargaining agreement in the light of c.581 of the Acts of 1980, although the complaint contains a reference to the contract clause of the Constitution, Art. I, section 10. The ease has not been concerned with the effect of section 13(c) of UMTA or the 13(c) agreement. Where the jurisdiction of the court has properly been invoked, this court is obliged to act in the absence of compelling reasons of comity and practicality. While state law does underlie the resolution of this case, as far as I can determine there are not any significant questions concerning state law at issue in the state cases, the resolution of which will aid in the decision of this case. In these circumstances abstention is.at best a discretionary matter. Puerto Rico International Airlines, Inc. v. Silva Recio, 520 F.2d 1342, 1345 (1st Cir. 1975). One of the issues to be considered in the exercise of discretion is the exigency of the issue to be decided. It is clear that significant arbitration necessary to resolve the current labor dispute affecting this critical transit system will not proceed until the federal questions are resolved. This does not strike me as the time for an elegant game of jurisdictional shuttlecock. Cf. England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed. 440 (1964). Accordingly, I shall proceed with an attempt to resolve the federal questions. IV. THE COLLECTIVE-BARGAINING AGREEMENT Section 13(c) of UMTA and the agreement thereunder are essentially preservative rather than creative of contract rights, as is the contract clause of the Constitution. A useful first inquiry is to determine whether the collective bargaining agreements pre-date the 1974 13(c) agreement or post-date it; similarly, whether they predate c.405 or post-date it. All agree that they pre-date c.581 of the Acts of 1980. The defendants contend that the Transit Union's current collective bargaining agreement is dated August 8,1979, and the Memorandum of Understanding, dated August 8, 1979, merely incorporated by reference all of the unamended provisions of the Articles of Agreement of January 1, 1973. They argue further that the notification of desire for change under Section 600 terminates the contract, since there is no other explicit provision for termination. If the notification of a desire for change provides only for amendment, then it would superficially appear, as defendants say, that the contract rolls on in perpetuity. Massachusetts law, however, provides for termination of such contracts by operation of law, in some cases on appropriate notice. Simons v. American Dry Ginger Ale Co., Inc., 335 Mass. 521, 524, 140 N.E.2d 649 (1957); Phoenix Spring Beverage Co. v. Harvard Brewing Co., 312 Mass. 501, 506, 45 N.E.2d 473 (1942); Marble v. Standard Oil Co., 169 Mass. 553, 561, 48 N.E. 783 (1897). I need not consider what would be necessary to terminate the agreement in this case, because neither party has made any attempt to do so. The Memorandum of Understanding by its explicit terms provides: 1. That the Articles of Agreement entered into as of January 1, 1973, as amended, shall be further amended as follows: * * * * # * Section 600 of the Articles provides that it shall continue in force “until and including the thirty-first day of December, 1975, and from year to year thereafter unless changed by the Parties hereto.” Section 601 provides for arbitration in the event of a disagreement with respect to requested changes, “and the Award shall then be entered into and become a part of this Agreement. [Emphasis supplied.] I take the Memorandum of Understanding as an authentic interpretation and resolution by the parties of the inconsistent provisions of Sections 600 and 601. I conclude from the foregoing that the Transit Union’s current collective bargaining agreement is embodied in the Articles of Agreement dated January 1, 1973, as most recently amended August 8, 1979. The defendants contend further that the Machinists’ Union has no current collective bargaining agreement at all, and has not had one since December 31,1977. Their most recent contract is dated January 1, 1976 to continue until December 31, 1977 and from year to year thereafter unless notice of a desire to change or terminate the contract is served by one party on the other at least 60 days before the next anniversary. A notice to change was so served by both parties in October of 1977. By the terms of the contract, this notice operated to cut off the “year to year” extended term. In fact, however, as appears from the uncontradicted affidavit of Anthony Mastandrea, the parties have treated the agreement as continuing in force up to this time, and have mutually enforced its terms as from time to time amended. I rule that the MBTA is estopped to deny the continuation in force of the agreement dated January 1, 1976, which is the Machinists’ Union’s current collective bargaining agreement with MBTA. Accordingly, both collective bargaining agreements pre-date c.405 of the Acts of 1978. V. THE EFFECT OF c.405 OF THE ACTS OF 1978 ON CONTRACT PROVISIONS FOR ARBITRATION — THE CONSTITUTIONAL QUESTION The next question concerns the power of the state to alter the existing contractual arrangements of its public corporations. It was early recognized that the contract clause imposes less of a restriction on a state’s impairment of the rights of those who deal with public corporations than an impairment of the rights of other contracting parties. It was thought that the state had a compelling interest in the governance of such corporations which outweighed the sanctity of contracts. Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518, 628, 4 L.Ed. 629 (1819). More recently, the state’s rights have been perceived as subject to constitutional limitation, even when the contracting party is a public body. This limitation is illustrated by two relatively recent cases: City of El Paso v. Simmons, 379 U.S. 497, 85 S.Ct. 577, 13 L.Ed.2d 446 (1965), and United States Trust Company of New York, Trustee v. New Jersey, 431 U.S. 1, 97 S.Ct. 1505, 52 L.Ed.2d 92 (1977). In summary, a state may impair an obligation of a public body only with respect to some aspect of the contract which was not central to the reasonable expectations of the contracting parties, and then only if the impairment is reasonable and necessary in the furtherance of a valid state policy. Plaintiffs point to an arbitration “award” now being contested in the Supreme Judicial Court of Massachusetts, in which the arbitrator ruled that c.405 was invalid. The cases cited by the plaintiff to establish collateral estoppel by this award all deal with grievance arbitration. I know of no case in which the judgment of an arbitrator (who may not be a lawyer) is held to bar resolution of a pure question of law by a court of competent jurisdiction. I rule that c.405 of the Acts of 1978 was effective to amend and add to the agreement of the parties relative to interest arbitration except with respect to the central mutual consideration of the agreement and the core of the parties’ reasonable expectations. The detailed application of this principle to the agreement in question follows: a. I rule that tripartite arbitration, as provided in the agreements, whereby each side chooses its own arbitrator and. those arbitrators choose a neutral third, is a central consideration of the contracts and cannot be disturbed by subsequent legislation. So much of c.405 as imposes arbitration by a single arbitrator is invalid. b. The qualifications of the neutral arbitrator are not stated in the agreements except that he is to be “experienced in transportation”. This clearly is not intended to be exclusive. The additional qualifications imposed by c.405 that the neutral arbitrator be a legal resident of the commonwealth and experienced in state and local finance is not in conflict with nor an impairment of the contract, and is a reasonable and valid provision. c. The agreements do not specify the standards which shall be applied by the arbitrators. Accordingly, there is no conflict or impairment in the provision of c.405 (appearing as M.G.L. C.161A § 19F) requiring the arbitrators to rely “primarily” on eight factors in determining an award. The factors are not exclusive, and, moreover, number 8 includes such factors “normally or traditionally taken into consideration in the determination of wages, hours and conditions of employment through voluntary collective bargaining [etc.] ... in the public service of the commonwealth.” d. The limitation on awarding a provision for cost-of-living adjustments after the period covered by the award is a limitation on the prior power of the arbitrators, but I find and rule the same to be within the power of a state to control the affairs of a public corporation. There are, moreover, two provisions of c.405 which grant to the arbitrators power which they did not have before, to which apparently the plaintiffs do not object. The first is to inquire into the financial capacity of the Authority. The arbitrators are not limited to the specific considerations of tax burdens under this provision, but under the generality of the paragraph can presumably inquire as to other opportunities for savings or for the raising of fares. The second is that the award of the arbitrator may be enforced against the appropriate legislative or appropriating body. M.G.L. C.161A § 19G. Cf. City of Boston v. MBTA, 373 Mass. 819, 370 N.E.2d 1359 (1977). In summary, absent the provisions of section 13(c) of UMTA and the 13(c) agreement of 1974, binding interest arbitration must be conducted in accordance with c.405 of the Acts of 1978 except that three arbitrators shall be chosen as provided” in the collective bargaining agreements and the third or neutral arbitrator shall be (1) experienced in transportation, (2) a legal resident of the Commonwealth of Massachusetts, and (3) experienced in state and local finances. VI. THE EFFECT OF c.581 OF THE ACTS OF 1980 ON THE CONTRACT PROVISIONS — THE CONSTITUTIONAL QUESTION The same legal criteria apply to this question as are set out at length in the foregoing section. There is no doubt in my mind that the obligation to continue to bargain collectively is a central consideration of the agreements in force when c.581 of the Acts of 1980 was passed. To the extent that c.581 withdraws questions of substance from collective bargaining it is in violation of Article 1, section 10 of the Constitution of the United States. Counsel for the Advisory Board suggests that I consider the practical consequences of my rulings, and I agree that I should where there are areas of discretion or open interpretation. Clear legal and constitutional mandates may not be avoided, however, even if they result in the practical disaster which he foresees. The MBTA’s arguable lack of success in collective bargaining does not justify repudiation of its contractual agreements, which were fully authorized by the legislature. M.G.L. C.161A § 19. VII. THE EFFECT ON THE FOREGOING OF SECTION 13(c) OF UMTA AND THE 13(c) AGREEMENT ENTERED THEREUNDER As previously stated, under the Court of Appeals’ decision in Local Div. No. 714, etc. v. Greater Portland, etc., 589 F.2d 1 (1st Cir. 1978), enforcement of rights under, section 13(c) means enforcement of the terms of the contract entered into in pursuance thereof. The parties agree that the provision of that contract which bears on this controversy is paragraph 4, the material part of which is as follows: 4. The collective bargaining rights of employees of the Authority represented by Labor Organizations signatory hereto [] including the right to arbitrate labor disputes and to maintain union security and check-off arrangements, to the extent such are provided for by applicable laws and/or existing collective bargaining agreements, or otherwise shall be preserved and continued. While such a provision might have broad application in a variety of situations, particularly where a public authority has used UMTA funds to acquire a private transit system, I shall confine my discussion to its effect in the present case. The first inquiry is to settle the meaning of “and/or” in the phrase “provided for by applicable laws and/or existing collective bargaining agreements”, since in this case there are both applicable laws and an existing collective bargaining agreement, at least with respect to the Transit Union. While the words and symbol “and/or” are anathema to the purist, “they are continued in use and Courts will have to deal with them according to the facts appearing in any particular case.” McPherrin v. Hartford Fire Ins. Co., 44 F.Supp. 674, 676 (N.D.Cal., 1942). The practical construction of the phrase is to treat the phrase as if the alternatives were listed with either conjunction and followed by the phrase “or any combination thereof”. 17 Am.Jur.2d, Contracts, § 283. The contract speaks of “existing collective bargaining agreements” and “applicable law.” The existing collective bargaining agreement for the Transit Union at the time of this contract were the Articles of Agreement of January 1, 1973. The record is silent as to the then-existing agreement of the Machinists’ Union. The word “existing” is conspicuously not modifying applicable law. The continuation of the various employee benefits listed in the agreement is to continue, in my opinion, as provided in the collective bargaining agreement in force in 1974 subject to such laws as are “applicable” from time to time. Chapter 405 is applicable in part, as outlined above, but not applicable with respect to the termination of tripartite arbitration. Chapter 581 is not applicable, because it conflicts with the essential provisions of a prior agreement, and its applicability is interdicted by Article 1, Section 10, of the United States Constitution. In short, the rights of the parties established by the interrelation of existing collective bargaining agreements, state statutes and the contract clause of the Constitution have been preserved but not altered by the 13(c) agreement. These rights remain as stated in Sections IV, V and VI of this memorandum. All that section 13(c) has accomplished in the context of this case is to provide a federal forum for the enforcement of these rights. VIII. ENJOINING THE LAYOFF — THE MACHINISTS’ UNION The collective bargaining agreement of the Machinists’ Union dated January 1, 1976 remains in force. It contains a flat prohibition against layoffs in Article XIV: A. No Layoff — No employee, in any classification under the jurisdiction of the Association, shall be laid off during the term of this Agreement. Despite the flat, unequivocal language of Article XIV, there remains a necessary residual, inherent right of the MBTA to layoff employees when it runs out of money. Its collective bargaining contract does empower it to demand funds in excess of its budget (unless it is necessary to fund an award made under e.405 of the Acts of 1978, M.G.L. C.161A § 19G). The propriety of such layoffs is clearly a controversy subject to binding arbitration under the terms of Article XLI of the collective bargaining agreement. This is not “interest arbitration” and consequently is not subject to the c.405 of the Acts of 1978 in any respect. IX. ENJOINING THE LAYOFF — THE TRANSIT UNION The “no layoff” provision, Section 124 of the Transit Union’s agreement, as amended August 8, 1979, contains the following provisions: Notwithstanding the provisions of Section 106 hereof, no employee in any classification under the jurisdiction of the Union will be laid off up to and including December 31,1980 .... [provisions about temporary employees]. For non-miscellaneous employees hired after the date of this Agreement, the No Layoff provision shall not apply during the first thirty (30) months of service. The members of the Transit Union are in a more perilous situation than the members of the Machinists’ Union. Section 124, as amended, provides no job security whatsoever for “non-miscellaneous” (i. e., classified) employees hired after August 8, 1979 during their first 30 months of service. Thirty months have not yet elapsed. These employees constitute a large proportion of those scheduled for layoff on March 21, 1981. They had no contract right to job security, and in view of their contract, no reasonable expectation of job security until 30 months elapsed. Even given the broadest theory of the discretionary power of the court to preserve the status quo, I do not see how a court would have any basis for enjoining the layoff of these employees. As to the employees hired prior to August 8, 1978, their job security expired on December 31, 1980. Plaintiffs suggest that some generalized obligation of fairness under section 13(c) of UMTA prevents the MBTA from utilizing the breakdown of collective bargaining and the resulting extended hiatus in employment security to accomplish the proposed layoffs. The contract provision was negotiated between the parties, and I perceive no legal or equitable basis for relieving the Union of a tough bargain any more than I see a basis for relieving the MBTA of a number of tough contract provisions upon which the Unions insist. There is precedent in labor law, however, for maintaining the status quo during arbitration, including interest arbitration. Local Division 519, Amalgamated Transit Union v. Lacrosse, 445 F.Supp. 798 (W.D.Wisc.1977), aff’d, 585 F.2d 1340, 1350-51 (7th Cir. 1978); Teamsters Local Union 71 v. Akers Motor Lines, Inc., 582 F.2d 1336, 1342 (4th Cir. 1978), cert. denied, 440 U.S. 929, 99 S.Ct. 1266, 59 L.Ed.2d 485 (1979); Division 1447, Amalgamated Transit Union v. Louisville and Jefferson County Transit Authority, No. C 79-0629 L(A) (W.D.Ky.1980); Division 1309, Amalgamated Transit Union v. San Diego Transit Corp., Civ. No. 78-1093-E (S.D.Cal.1979). If there were arbitration underway, and there were some likelihood that a resolution of the controversy would occur with reasonable dispatch, the public interest might well be best served by a preliminary injunction. The layoffs and the resulting curtailment of services have been ordered unilaterally by the MBTA with minimal opportunity for consideration of other ways of reducing MBTA expenses to comply with the Advisory Board’s budget. If I were advised before March 21, 1981 that arbitration between the MBTA and the Transit Union had commenced in accordance with this memorandum, I would consider enjoining the layoff of employees hired prior to August 8,1979, but not otherwise. Accordingly, no injunction will issue at this time. X. SUMMARY In accordance with the foregoing, I am of the opinion that the plaintiffs are likely to succeed on the merits in establishing the following: a. The MBTA and the Transit Union are obliged forthwith to institute interest arbitration by three arbitrators chosen in accordance with the Articles of Agreement dated January 1, 1973, but otherwise subject to the qualifications and considerations contained in c.405 of the Acts of 1978.. b. Chapter 581 of the Acts of 1980 is invalid to restrict the scope of collective bargaining contained in the unions’ existing collective bargaining agreement, because said chapter constituted an impairment of contract in violation of Article 1, Section 10, of the Constitution of the United States. c. The proposed layoffs of members of the Machinists’ Union is in direct violation of the explicit terms of the collective bargaining agreement, and while they may be justified they are properly the subject of arbitration under the existing agreement before they are effectuated. Such arbitration would not be interest arbitration subject to c.405 of the Acts of 1978. The plaintiffs are not in my opinion likely to succeed on the merits in establishing any basis for enjoining the proposed layoff of Transit Union employees, except that they might likely succeed with respect to employees hired prior to August 8, 1979 in establishing a basis for an injunction for a reasonable time pending arbitration, as described in paragraph 1 above, providing that such arbitration is set in motion prior to March 21, 1981. In addition to the likelihood of success on the merits, I am obliged to consider the likelihood of irreparable harm to the plaintiffs if injunctive relief is not granted. Such irreparable harm must be weighed against the harm to the defendants resulting from the issuance of a preliminary injunction. In a case involving a public facility, the public interest must be considered. Levesque v. Maine, 587 F.2d 78, 80 (1st Cir. 1978). Weighing these factors, I am satisfied that a continued hiatus in the collective bargaining and arbitration process puts the continuing operation in such jeopardy as to create a serious likelihood of irreparable harm to the plaintiffs and, more critically, to the public. The discharge of members of the Machinists’ Union in violation of their contract, without the opportunity for arbitration, presents a likelihood of irreparable harm to the employees and to the public because of the resulting deterioration of service. Accordingly, preliminary injunctions will issue: (1) Ordering the MBTA and the Transit Union to proceed forthwith to interest arbitration in accordance with the foregoing memorandum; (2) Ordering the MBTA and the Machinists’ Union to proceed forthwith to arbitration concerning the proposed layoff of 53 members and enjoining such layoff for a reasonable time pending the prompt completion of arbitration. Pertinent statutes and contracts not quoted are set out in the appendix hereto. APPENDIX 161A § 19 CORPORATIONS § 19. Employees; collective bargaining; arbitration; applicable provisions The directors shall have authority to bargain collectively with labor organizations representing employees of the authority and to enter into agreements, with such organizations relative to wages, salaries, hours, working conditions, health benefits, pensions and retirement allowances of such employees: provided, however, that the directors shall have no authority to bargain collectively and shall have no authority to enter into collective bargaining agreements with respect to matters of inherent management right which shall include the right: (i) to direct, appoint, employ, assign and promote officers, agents and employees and to determine the standards therefor. (fi) (A) to discharge and terminate employees subject to the provisions of such clauses (B) and (0). '(B) No action set forth in (A) shall be sustained if, in a proceeding invoked in accordance with the provisions of such clause (C), the employee shall establish by a preponderance of the evidence that it was based upon race, color, religion, sex, age, national origin, handicapping condition, marital status, or political affiliation or activities or union activities or union organizing of the employees; a reprisal against the employee for disclosure of information by an employee which the employee reasonably believes evidences a violation of any law, rule or regulation or mismanagement, a gross waste of funds, or abuse of authority; a reprisal against any employee for the refusal of any person to engage in political activity. (C) The parties may include in any written agreement a grievance procedure culminating in final and binding arbitration which may be invoked in the event any employee of the authority is aggrieved by any action taken under such clause (A). (///) to plan and determine the levels of service provided by the authority. (iv) to direct, supervise, control, and evaluate the departments, units, and programs of the authority; to classify the various positions of the authority and ascribe duties and standards of productivity therefor. (v) to develop and determine levels of staffing and training. (vi) to determine whether goods or services should be made, leased, contracted for, or purchased on either a temporary or permanent basis. (vii) to assign and apportion overtime. (viii) to hire part-time employees. The authority is hereby prohibited from bargaining collectively or entering into any agreement to make pension benefit payments to its employees that are determined in a manner that includes the amount of overtime earnings of said employees. The authority is hereby prohibited from bargaining collectively or entering into a contract which provides for automatic cost-of-living salary adjustments which are based on changes in the Consumer Price Index or other similar adjustments unless specifically authorized by law. Except as provided in sections nineteen C to nineteen G, inclusive, the employees of the authority shall submit all grievances and disputes pursuant to arbitration provisions in agreement existing at the time of the creation of the authority or subsequently entered into with the authority or, in the absence of such provisions, to the state board of conciliation and arbitration, or other board or body having similar powers and duties. The provisions of general or special laws relative to rates of wages, hours of employment and working conditions of public employees, shall not apply to the authority nor to the employees thereof, but the authority and its employees shall be governed with respect to hours of employment, rates of wages, salaries, hours, working conditions, health benefits, pensions and retirement allowances of its employees by the laws relating to street railway companies. Amended by St.1977, c. 970, § 2; St.1978, c. 405, § 1; St.1980, c. 581, § 10. 161A § 19A BAY TRANSPORTATION AUTHORITY § 19 A. State labor relations law; applicability Notwithstanding any provisions of law to the contrary, the provisions of section five of chapter one hundred and fifty A shall so far as apt apply to the authority and its employees, excepting directors, executives and those confidential employees representing the authority and dealing with employee organizations. Nothing in this section shall be construed as conferring upon the employees of the authority the right to strike, nor as detracting from the obligations of the authority and the employees to submit all grievances and other disputes to arbitration. Added by St.1970, c. 514. Historical Note St.1970, c. 514, an emergency act, was approved July 8, 1970. § 19B. Deceased employees; payment of wages or vacation allowances to nominated beneficiary, surviving spouse or next of kin Whenever any employee or former employee of the authority dies, and the authority owes his estate any sum or sums by reason of services rendered by him for wages or vacation allowances, and neither a duly appointed executor or administrator nor a voluntary administrator has made written demand for payment upon the treasurer of the authority and such treasurer shall not otherwise have actual notice that proceedings relative to the formal or informal settlement of such estate have been commenced in any probate court, such sum or sums may, in the discretion of the authority, be paid after the expiration of thirty days from the death of such employee to such person as may have been nominated as beneficiary, on a form approved by the directors and filed with the treasurer by such employee during his lifetime or, if there is no such beneficiary, then to the surviving spouse or next of kin of such employee. Payments made as provided in this section shall discharge all liability of the authority to all persons with respect to such sum or sums. Added by St.1973, e. 857. Historical Note St.1973, c. 857, was approved Oct. 2, 1973. Emergency declaration by the Governor was filed Oct. 3,1973. Library References States <3=64.1(3). C.J.S. States § 94. § 19C. Collective bargaining; submission to arbitration Notwithstanding the provisions of sections nineteen and ninteeen A, the authority or any organizations representing employees of the authority shall not he permitted to submit any dispute over the terms of a collective bargaining agreement to arbitration except in accordance with sections nineteen G through nineteen G, inclusive; provided, however, that this section shall not limit the rights of organizations representing employees of the authority to submit grievances to arbitration in accordance with the collective Added by St.1978, c. 405, § 2. bargaining agreement between the parties. 1978 Enactment. St.1978, c. 405, § 2, was approved July 13, 1978, and by section 5 made effective upon its passage. Sections 3 and 4 as amended by St.1979, c. 298, § 1, approved June 19, 1979 and by section 2 made effective July 13, 1978 provided: "Section 3. Notwithstanding the provisions of any general or special law to the contrary, there shall be no salary adjustment awarded to any management employees of the authority for a period of eighteen months from the date of such employee's last salary adjustment; provided. however, that the provisions of this section shall not apply to any cost-of-living adjustment for management employees who are covered in a collective bargaining agreement.’’ "Section 4. The provisions of this act are severable, and if any of its provisions shall be held unconstitutional by any court of competent jurisdiction, the decision of such court shall not affect or impair any of the remaining provisions.” Library References Labor Relations <§==>414. C.J.S. Labor Relations § 405 et seq. § 19D. Mediation; selection of mediator; report; selection of arbitrator In the event the directors and any organizations representing employees of the authority have not reached an agreement within ninety days from the date of the expiration of the agreement, either party may notify the other that it desires mediation. The parties may agree upon a person to serve as a mediator or, if unable to agree on said mediator, either party or the parties acting jointly may petition the board of conciliation and arbitration to appoint a mediator from a list of qualified persons maintained by the hoard. After a reasonable period of mediation, not to exceed forty-five days from the date of appointment, said mediator shall issue a report indicating the results of his services in resolving the impasse. If at the conclusion of mediation, the mediator certifies that the impasse still exists, either party may notify the other that it desires arbitration of the matters in dispute. Within ten days of said notice, the parties shall meet to select a single neutral arbitrator. If, within fifteen days, the parties fail to select such single arbitrator, either party may forthwith petition the board of conciliation and arbitration to request a list of five arbitrators from the American Arbitration Association and said Association shall certify to the board that such arbitrators on the list it provides possess the qualifications as provided in section nineteen E. The parties shall thereupon meet to select such arbitrator by striking one name each until one name remains and that person shall serve as the neutral arbitrator. If after ten days, if one of the parties declines to strike their names, the other party shall strike two names and the board shall forthwith select the arbitrator from the remaining three names. Added by St.1978, c. 405, § 2. 1978 Enactment. St.1978, c. 405, § 2, was approved July 13, 1978. Library References Labor Relations @=>414, 453. C.J.S. Labor Relations §§ 405 et seq., 464, 465. § 19E. Qualifications of arbitrator The single arbitrator, whether agreed upon by the parties or selected by the board of conciliation and arbitration, shall be a legal resident of the commonwealth and shall be experienced in state and local finance. Added by St.1978, c. 405, § 2. 1978 Enactment. St.1978, c. 405, § 2, was approved July 13, 1978. Library References Labor Relations @=>453. C.J.S. Labor Relations §§ 464, 465. § 19F. Factors in determining the basis for award The arbitrator shall rely primarily on the following factors in determining the basis for an award: 1. The financial ability of the authority to meet additional costs, which shall include but not be limited to: a. the statutory requirement of advisory board approval of the authority’s fiscal budget; b. the financial ability of the individual communities and the commonwealth to meet additional costs; e. the average per capita tax burden, average annual income and sources of revenue within the commonwealth, and the effect of any arbitration award on the respective property tax rates of the cities and towns within the authority’s district. 2. The overall compensation presently received by the employees, having regard not only for wages for time actually worked but also for wages for t”ime not worked, including vacations, holidays and other excused time. 3. All benefits received by the employees, including insurance, pension, as well as the continuity and stability of employment. 4. The hazards of employment, physical, educational and mental qualifications, job training and skills involved. 5. A comparison of wages, hours, and conditions of employment of the employees involved in the arbitration proceedings with the wages, hours and conditions of employment of other employees performing similar services within the commonwealth and with other employees generally in public and private employment within the commonwealth. 6. The average consumer price for goods and services, commonly known as the cost of living. 7. Changes in any of the foregoing circumstances during the pendency of the arbitration proceedings. 8. Such other factors, not confined to the foregoing, which are normally or traditionally taken into consideration in the determination of wages, hours and conditions of employment through voluntary collective bargaining, mediation, fact-finding, arbitration or otherwise between parties, in the public service of the commonwealth, and which are not precluded from bargaining under section nineteen. 9. The stipulation of the parties. Added by St.1978, c. 405, § 2. Amended by St.1980, c. 581, § 9. 1978 Enactment. St.1978, c. 405, § 2, was approved July 13, 1978. 1980 Amendment. St.1980, c. 581, § 9, in par. 8, added ", and which are not precluded from bargaining- under section nineteen”. Section 25 of St.1980, c. 581, provided: "The provisions of this act are sever-able, and if any of its provisions or an application thereof shall be held unconstitutional by any court of competent jurisdiction, the decision of such court shall not affect or impair any of the remaining provisions or other applications thereof.” St.1980, c. 581 was approved Dec. 7, 1980. Emergency declaration by the governor was filed Dec. 8, 1980. Library References Labor Relations @=>457. C.J.S. Labor Relations § 473. § 19G. Written opinion of arbitrator; binding nature; scope of arbitration; cost of mediation and arbitration Within thirty calendar days of an award, the arbitrator shall issue a written opinion inclusive of an analysis of all statutory factors applicable to the proceedings. Any determination by the arbitrator, if supported by material and substantial evidence on the record, shall be binding upon the parties and upon the appropriate legislative or appropriating body and may be enforced at the insistence of either party or by the arbitrator in the superior court. The scope of arbitration shall be limited to wages, hours, and conditions of employment and shall not include any provisions for any cost of living adjustments which are based on changes in the Consumer Price Index after the expiration of the contract period covered by the award. In addition, any wage or salary adjustments shall be expressed in per cent or dollar amounts, and in no case shall there be any provision for salary adjustments to occur after the expiration of the contract period covered by the award. The cost, if any, of the mediation and of arbitration proceedings exclusive of the expenses of the individual parties provided for under sections nineteen C through nineteen G shall be divided equally by the parties and shall be in accordance with a schedule of payments established by the American Arbitration Association. Added by St.1978, c. 405, § 2. ACTS, 1980. - Chap. 581. THE COMMONWEALTH OF MASSACHUSETTS Advance Copy 1980 Acts and Resolves MICHAEL JOSEPH CONNOLLY, State Secretary Chap. 581. AN ACT RELATIVE TO THE STRUCTURE OF THE MASSACHUSETTS BAY TRANSPORTATION AUTHORITY. Be it enacted, etc., as follows: SECTION 1. Section ninety-one A of chapter one hundred and sixty-one of the General Laws is hereby repealed. SECTION 2. Section 3 of chapter 161A of the General Laws is hereby amended by striking out paragraph (df), as most recently amended by section 6 of chapter 1140 of the acts of 1973, and inserting in place thereof the following paragraph :- (d) To appoint and employ officers, including a general manager, agents, and employees to serve at the pleasure of the directors, except as may otherwise be provided in collective bargaining agreements, and to fix their compensation and conditions of employment; provided, however, the authority may bind itself by contract to employ not more than five senior officers but no such contract shall be for a period of more than five years. The advisory board shall approve the appointment of a general manager. The authority shall annually, on or before January first, submit a schedule of salaries' of all its employees and any proposed increases therein to the secretary of administration for his review. Said secretary may make recommendations to the authority on said salary structure and shall advise the authority of the prevailing rates that the commonwealth pays for similar services. SECTION 3. Said chapter 161A is hereby further amended by striking out section 6, as most recently amended by section 10 of said chapter 1140, and inserting in place thereof the following section:- Section 6. The authority shall be managed by a board of seven directors, hereinafter in this chapter called the directors, one of whom shall be the secretary, who shall be the chairman and shall not be compensated therefor, six of whom shall be appointed by the governor and who shall serve coterminus with the governor, one with the approval of the advisory board, one with the approval of the fourteen cities and towns, and one with the approval of the sixty-four cities and towns. The approval of the fourteen cities and towns shall be determined by a majority vote of their mayors, or city managers in the cases of Plan D or Plan E cities, and chairmen of the boards of selectmen and town managers in towns having a town council form of government with the vote of each city and town counted as on said advisory board; provided that fifty per cent or more of the total votes as set forth in said section seven is represented at such meeting. The approval of the advisory board and of the sixty-four cities and towns shall be determined by a majority vote of their mayors or city managers and chairmen of selectmen or town managers present and voting thereon with the vote of each city and town counted as on said advisory board; provided that fifty per cent or more of the total votes as set forth in said section seven is represented at such meeting. One of the appointees of the governor shall be experienced in transportation, one a member of organized labor who shall be a member of a national or international labor organization, and one experienced in administration and finance. No more than four of the seven directors shall be members of the same political party. Two of the appointees of the governor shall not be residents of the area constituting the authority. Any director except the chairman may be removed for cause by the governor and any vacancy in the office of a director shall be filled, by appointment of the governor with the approval applicable to such under the provisions of section three of chapter twelve shall not apply to said board of directors. The six directors appointed by the governor shall receive a salary of seven thousand five hundred dollars. A majority of the directors shall constitute a quorum, but a majority vote of the entire membership of the board of directors shall be required to take any particular action. SECTION 4. Said chapter 161A is hereby further amended by inserting after section 7 the following section:- Section 7A. A designee of the governor shall be a member of the advisory board, and shall have the same number of votes on said board as the city or town with the greatest number of votes on said board; provided, however, that the designee shall not be considered a voting member on the approval of any appointment to the board of directors, or the position of general manager; provided, further, that in any case where the designee of the governor, and said city or town with the greatest number of votes shall vote the same, their combined vote shall equal the vote of said city or town; and provided, further, that an affirmative vote of at least one-third of the cities and towns present and voting shall be required for approval of any action or appointment. The number of votes of such designee shall be in addition to the total number of votes of each city and town as determined by the authority, based upon the most recent annual assessment. SECTION 5. Said chapter 161A is hereby further amended -by inserting after section 11 the following section:- Section 11A. Any of the sixty-four cities and towns may for the purpose of providing local'bus service enter into agreements with any person lawfully authorized to operate any motor bus on any public way therein for the carrying of passengers for hire. Said city or town shall have the same powers and duties in respect to such private bus carriers as are provided by law for the department of public utilities, except as to safety of equipment and operations, schedules, and routes not being, however, considered safety of equipment and operations for purposes of this paragraph; and provided that the authority shall be notified of the establishment of any such contract local service, but shall not have control or jurisdiction over said service. SECTION 6. The third paragraph of section 12 of said chapter 1964, is hereby amended by adding the following sentence: —The authority shall consult with the finance advisory board established by section ninety-seven of chapter six prior to the sale of any such notes as to the timing and terms thereof. SECTION 7. Subsection (a) of section 12A of said chapter 161A, as appearing in section 15 of chapter 4 of the acts of 1976, is hereby amended by adding the following sentence: — The authority shall consult with the finance advisory board established by section ninety-seven of chapter six prior to the sale of any such notes as to the timing and terms thereof. SECTION 8. Section 19 of said chapter 161A is hereby amended by striking out the first sentence, as appearing in section 18 of chapter 563 of the acts of 1964, and inserting in place thereof the following sentences: —The directors shall have authority to bargain collectively with labor organizations representing employees of the authority and to enter into agreements, with such organizations relative to wages, salaries, hours, working conditions, health benefits, pensions and retirement allowances of such employees; provided, however, that the directors shall have no authority to bargain collectively and shall have no authority to enter into collective bargaining agreements with respect to matters of inherent management right which shall include the right: (i) to direct, appoint, employ, assign and promote officers, agents and employees and to determine the standards therefor. (ii) (A) to discharge and terminate employees subject to the provisions of such clauses (B) and (C). (B) No action set forth in (A) shall be sustained if, in a proceeding invoked in accordance with the provisions of such clause (C), the employee shall establish by a preponderance of the evidence that it was based upon race, color, religion, sex, age, national origin, handicapping condition, marital status, or political affiliation or activities or union activities or union organizing of the employees; a reprisal against the employee for disclosure of information by an employee which the employee reasonably believes evidences a violation of any law, rule or regulation or mismanagement, a gross waste of funds, or abuse of authority; a reprisal against any employee for the refusal of any person to engage in political activity. (C) The parties may include in any written agreement a grievance procedure culminating in final and binding arbitration which may be invoked in the event any employee of the authority is aggrieved by any action taken under such clause (A). (iii) to plan and determine the levels of service provided by the authority. (iv) to direct, supervise, control, and evaluate the departments, units, and programs of the authority; to classify the various positions of the authority and ascribe duties and standards of productivity therefor. (v) to develop and determine levels of staffing and training. (vf) to determine whether goods or services should be made, leased, contracted for, or purchased on either a temporary or permanent basis. (vii) to assign and apportion overtime. (viii) to hire part-time employees. The authority is hereby prohibited from bargaining collectively or entering into any agreement to make pension benefit payments to its employees that are determined in a manner that includes the amount of overtime earnings of said employees. The authority is hereby prohibited from bargaining collectively or entering into a contract which provides for automatic cost-of-living salary adjustments which are based on changes in the Consumer Price Index or other similar adjustments unless specifically authorized by law. SECTION 9. Section 19F of said chapter 161A, as appearing in section 2 of chapter 405 of the acts of 1978, is hereby amended by striking out paragraph 8 and inserting in place thereof the following paragraph:— 8. Such other factors, not confined to the foregoing, which are normally or traditionally taken into consideration in the determination of wages, hours and conditions of employment through voluntary collective bargaining, mediation, fact-finding, arbitration or otherwise between parties, in the public service of the commonwealth, and which are not precluded from bargaining under section nineteen. SECTION 10. The second paragraph of section 23 of said chapter 161A, as appearing in section 18 of chapter 563 of the acts of 1964, is hereby amended by adding the following sentence: — No bonds of the authority shall be sold by the authority unless prior to such sale the authority shall have consulted with the finance advisory board established by section ninety-seven of chapter six as to the timing and terms thereof. SECTION 11. The fourth paragraph of said section 23 of said chapter 161A, as amended by section 3 of chapter 650 of the acts of 1965, is hereby further amended by striking out the last sentence and inserting in place thereof the following sentence:— Subject to the requirement of consultation with the finance advisory board established by section ninety-seven of chapter six, the authority may sell such bonds in such manner, either at public or private sale, and for such price as it may determine to be for the best interests of the authority. SECTION 12. Said chapter 161A is hereby further amended by striking out section 29, as appearing in section 18 of chapter 563 of the acts of 1964, and inserting in place thereof the following section:— Section 29. The authority is authorized and directed from time to time to take all necessary action to secure any federal assistance which is or may become available to the commonwealth or any of its political subdivisions, for any of the purposes of this chapter. If any federal law, administrative regulations or practice requires any action relating to such federal assistance to be taken by any department or instrumentality of the commonwealth other than the authority, such other department or instrumentality is authorized and directed to take all such action, including without limitation filing applications for assistance, supervising the expenditure of federal grants or loans to the foregoing, and the authority is hereby authorized and directed to take all actions which are not inconsistent with state law and which are necessary to permit such other department or instrumentality to comply with federal requirements. If the provisions of any federal law, administrative regulation, or practice governing federal assistance for the purposes of this chapter are inconsistent with any provisions of this chapter to the extent that the commonwealth or its political subdivisions are prohibited or potentially prohibited from receiving such assistance, the chairman of the authority shall, within thirty days after the federal government has notified him that an inconsistency may exist, notify the governor, and the clerks of the house and senate of such inconsistency. SECTION 13. Chapter 151 of the acts of 1979 is hereby amended by striking out section 8A and inserting in place thereof the following two sections:— Section 8A. The budget of the Massachusetts Bay Transportation Authority shall not be greater than one hundred and four per cent of the budget approved for said authority for the preceding fiscal year, provided, however, that said budget may be increased by those amounts approved in accordance with section eight B. Section 8B. The Massachusetts Bay Transportation Authority may increase the budget limit imposed by section eight A by the approval of a specified amount by a two-thirds vote of the members of the advisory board present and voting. SECTION 14. Section 16 of said chapter 151 is amended by adding the following at the end thereof:- ; provided, however, that sections eight A and eight B shall not expire until December thirty-first, nineteen hundred and eighty-three, and the provisions of section two, and sections 15A through 15E inclusive, insofar as applicable to the provisions of section eight A, shall not expire until December thirty-first, nineteen hundred and eighty-three. SECTION 15. The directors of the authority, and each of the bargaining units within the authority, are hereby directed to establish for each said bargaining unit a productivity and conduct committee to be composed of three members of management chosen by the directors and three members of the respective bargaining unit, to be chosen by the officers thereof. Said committees shall recommend the establishment of standards of productivity, and conduct of employees for each respective bargaining unit no later than June thirtieth, nineteen hundred and eighty-one. The directors shall review, revise and implement said standards no later than thirty days after receiving such recommendations, and shall file a report with the clerk of the house of representatives on each set of standards as they are implemented. SECTION 16. The authority is hereby authorized and directed to develop, implement and utilize an equipment maintenance information recording system for the authority. The authority shall establish a joint labor-management committee for the purpose of providing consultation and cooperation in the development of said equipment maintenance information recording system. Said systems reporting requirements shall include, but not be limited to, vehicle numbers, defects reported, defects found, cause determination, action taken, by whom, and duration of repair. Said system is to be developed, approved by the authority’s board of directors, implemented in the automotive equipment maintenance department, and a report outlining said system filed in the office of the house clerk no later than the first Wednesday of January, nineteen hundred and eighty-two. The clerk shall forward said report to the joint committees on transportation and post • audit and oversight, and the report shall be reviewed by a subcommittee of the post audit and oversight committee, which shall be appointed by the chairman thereof. Said subcommittee, in consultation with the transportation committee may make such recommendations as they deem necessary to the authority with regard to said information system. Said systems will be initially implemented in the automotive department and upon acceptance by the authority initiated in all other equipment maintenance departments as it applies to said departments. SECTION 17. Commencing with the commonwealth’s fiscal year nineteen hundred and eighty-four, beginning on July first, nineteen hundred and eighty-three, the Massachusetts Bay Transportation Authority shall operate on a fiscal year cycle coinciding with that of the commonwealth. The board of directors of said authority shall prepare a plan to implement said fiscal year change and shall submit for approval said plan to the secretary of administration and finance not later than the first Wednesday of December, nineteen hundred and eighty-one. Notwithstanding any general or special law to the contrary, commencing with the commonwealth’s fiscal year nineteen hundred and eighty-four, all expenses of the authority shall be in accordance with an itemized budget. The authority, in consultation with the secretary of transportation and the advisory board, shall prepare and shall submit such budget for the ensuing fiscal year to the secretary and the advisory board not later than the date set by the commissioner of administration pursuant to section three of chapter twenty-nine of the General Laws for the submission of statements to the budget director. The secretary shall review and make recommendations regarding such budget within thirty days after submission. Within forty-five days after submission, the advisory board shall approve said budget as submitted or subject it to such itemized reductions therein as the advisory board shall deem appropriate. Such itemized reductions shall be accompanied by a clear delineation of the areas of services to be reduced and the degree of reduction of service including a statement by location, line, and mode of the level of maintainable service resulting from such itemized reduction. The advisory board shall vote on each item within the authority’s budget and may