OFFICES AND OFFICERS ‑- STATE ‑- WASHINGTON STATE FERRY SYSTEM ‑- LABOR ‑- COLLECTIVE BARGAINING ‑- RIGHTS OF FERRY SYSTEM EMPLOYEES
The provisions of chapter 344, Laws of 1981, do not violate the requirements of 49 U.S.C. § 1609(C) or of "§ 13(C) agreements" signed in compliance therewith by the Washington State Department of Transportation.
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September 1, 1981
Honorable John Spellman
Olympia, Washington 98504 Cite as: AGLO 1981 No. 25
Dear Governor Spellman:
By recent letter you requested our opinion on two questions which we paraphrase as follows:
(1) Does chapter 344, Laws of 1981 violate the requirements of 49 U.S.C. § 1609(C) or "§ 13(C) agreements" signed in compliance therewith by the Washington State Department of Transportation?
(2) If question (1) is answered in the affirmative, what potential liability may either the department or the state incur as a result of such violation?
We answer your first question in the negative for the reasons set forth in our analysis, thereby rendering consideration of question (2) unnecessary.
[[Orig. Op. Page 2]]
Chapter 344, Laws of 1981 relates to the Washington State Ferry System and the employees of that system. Without going into detail as to its provisions, there can be little doubt that they modify‑-after the expiration of currently effective collective bargaining agreements1/ ‑-the preexisting collective bargaining rights of Washington State Ferry System employees. Particularly, the act modifies those preexisting rights by:
(a) Subjecting those employees to a statewide marine classification and compensation plan adopted by the State Personnel Board;2/ and
(b) Causing the employees to become subject to the jurisdiction of the Public Employees Relations Commission in the resolution of labor disputes.3/
In addition, the act also expressly prohibits strikes by ferry system employees.4/
Your initial question is whether the resulting state law changes in the collective bargaining rights for Ferry System Employees are in violation of the provisions of a certain federal statute or of federal agreements previously signed by the State Department of Transportation.
The federal statute to which you make reference, 49 U.S.C. § 1609(C), is designed to require a recipient of an Urban Mass Transportation Administration (UMTA) grant to make [[Orig. Op. Page 3]] arrangements ". . . to protect the interests of employees affected by such assistance" including "the continuation of collective bargaining rights."5/ To accomplish this, [[Orig. Op. Page 4]] regulations have been adopted which require the United States Department of Labor to certify that an applicant for a UMTA grant has made adequate protective arrangements for affected employees. See, 29 CFR chapter II, part 215. Those regulations also require that a grant applicant attempt to negotiate protective agreements, referred to as "§ 13(C) agreements," with employees who are represented by labor organizations. If adequate, those protective agreements are then certified by a letter issued by the Secretary of Labor which is, in turn, incorporated by reference into the UMTA grant contract. In addition, the protections of the § 13(C) agreements are automatically extended to nonunion employees and may be imposed upon recalcitrant unions.
We are informed that the Washington State Ferry System has received financial assistance for two projects under this federal program. The first was in 1965 for the construction of four new ferry boats‑-reflecting a grant of $15,200,000 in federal funds made available to the Ferry System. The second in 1980 involved a grant of $1,700,000 to construct pedestrian walkways and bus lanes at various ferry terminals.6/ At the time of the 1965 grant, however, no protective agreements such as we have just described were required.
The federal statute involved, 49 U.S.C. § 1609(C) supra, expressly states that its purpose is to ". . . protect the interests of [the] employees affected by [the federal] assistance.7/" Thus, the Court of Appeals [[Orig. Op. Page 5]] for the Eight Circuit, in Division 1287, Amalgamated Transit Union, AFL-CIO v. Kansas City Area Transportation Authority, 582 F.2d 444 (8th Cir., 1978) cert. den. 439 U.S. 1090, in describing the purpose of that section, said:
"The Act authorizes grants or loans of federal funds to state or local public authorities to enable them to acquire private transit companies. Employees of those companies will presumably become employees of the public agencies, and when it passed the Act Congress was concerned with the economic risks that such employees might incur as a result of the take‑overs. Those risks might include loss of collective bargaining rights, loss of the right to strike, and the loss of pension and retirement benefits. Section 13(C) of the Act is designed to protect, at least in large measure, the rights and interests ofsuch employees from such risks." (Emphasis supplied) (Supra, at 447)
The effect of the federal funds in that case was to permit the acquisition of a transit system and the transit system employees. Those employees therefore were protected by the federal statute in reference to their preexisting private employment collective bargaining rights. Conversely, in the present situation, the 1980 grant of $1,700,000 for the construction of pedestrian walkways and bus lanes at ferry terminals did not transfer from private to public employment any Ferry System employees.
But again, the question as to the extent of the federal requirement is answered by resolving whether the interests of the employees are affected by the federal assistance. However, we cannot conceive of any way in which the 1980 grant for the construction of pedestrian walkways and bus lanes at ferry terminals has affected the interests of employees within the meaning of the federal statute. Thus, the undertaking of that project and execution of the related § 13 agreements did not, in our opinion, prohibit the state legislature from modifying the collective bargaining rights of Ferry System employees. And therefore, in response to your first question, we conclude that chapter 344,supra, does not violate either the federal statute or the section 13(C) agreements.
[[Orig. Op. Page 6]]
This negative answer to your first question, in turn, renders consideration of your second question unnecessary.
It is hoped that the foregoing will be of assistance to you.
Very truly yours,
KENNETH O. EIKENBERRY
EDWARD B. MACKIE
Chief Deputy Attorney General
*** FOOTNOTES ***
1/See, § 3(3).
2/Sections 3(4) and 7.
5/The full text of 49 U.S.C. § 1609(C), supra, reads as follows:
"(C) It shall be a condition of any assistance under section 3 of this Act [49 USCS § 1602] 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 in 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 [49 USCS § 5(2)(f)]. The contract for the granting of any such assistance shall specify the terms and conditions of the protective arrangements." (Emphasis supplied)
6/We are also aware that there are other applications pending for UMTA funds, and we note with reference thereto that 29 CFR chapter II, § 215.3(a)(2) provides:
"In instances where states or political subdivisions are subject to legal restrictions on bargaining with employee organizations, the Department of Labor will utilize special procedures to satisfy the Federal statute in a manner which does not contravene state law or local law."
7/See, footnote 5, above.