Lege Speaks, Cap Metro Listens: Screw the Union
Lege mandates busting union contracts at Cap Metro
But Cap Metro's board – which is scheduled to vote on the issue June 27 – may need to search for a third option, because the response of its unionized workers to those first two has been "no" and "hell no." And the force of state law doesn't carry much weight with the union – they say federal law trumps the state, and it's on their side.
Currently, Cap Metro drivers and mechanics are not direct employees of the agency. Most work for StarTran, a shell corporation created by Cap Metro to work around a conflict between state and federal law. Texas law forbids most state employees from collective bargaining, but U.S. law basically requires the agency to allow collective bargaining if it wants to be eligible for federal money. Thus, StarTran was created in 1991 to be the nominal employer, allowing Cap Metro ostensibly to be union-free. A minority of Cap Metro drivers are employed by other independent subcontractors, but the best-paying jobs are at StarTran.
So SB 650, sent to the governor May 26, requires the agency to pick its poison – as long as it gets rid of StarTran – and to do it by Sept. 1, 2012.
"Going in-house would necessarily, unavoidably mean that these employees would have to give up their right to collectively bargain," says Glenda Pittman, lawyer for the bus drivers and workers local, Amalgamated Transit Union 1091. (Local President Jay Wyatt referred questions about the new law to Pittman.) That's a no-go, she says. Collective bargaining results in an ironclad, enforceable contract, and "the union has repeatedly, emphatically, and for years told Capital Metro that [giving up collective bargaining] is not an option. We will not voluntarily give up our right to hold you to your promises."
But the contracting-out option is also not feasible, Pittman asserts, because it would likely violate federal law. What is called the 13(c) provision of federal labor law requires that, if workers had collective bargaining rights at the time a transit agency accepts federal money, the workers must continue enjoying those rights as long as the fed cash keeps flowing. "Those 13(c) rights mean that any new contractor must assume the collective bargaining agreement as-is at the time the new contractor comes on the scene, must hire all of the bargaining unit employees, must continue in existence the same terms and conditions of employment – cannot change the wages, the benefits, the grievance procedure, the way seniority is determined, the way people sign up for work," Pittman says. She also said the union has challenged the legality of Cap Metro's current non-StarTran contracts.
In a May 23 work session, the Cap Metro board heard a presentation from staff (and a consultant with the Texas Transportation Institute) that offered two different private-contractor scenarios, one that would immediately assume market wages and begin producing savings by 2013 and another that would continue StarTran wages for three years and begin realizing savings by 2018. (They also presented the in-house scenario, which would produce savings immediately but ultimately would save less than the market wages option.)
"It's our understanding," said Pittman, "that Capital Metro wants to save money by contracting this out, and they're taking the legal position that ... those rights have never attached here and those employees have never really had those rights." Meaning: When Cap Metro took over from the previous, city-run bus company, the union's bargaining rights didn't carry over. "For a variety of reasons, the union's position is, that is just hogwash."
In a letter to the Cap Metro board, Pittman attached letters from the 1980s and 1990s from Cap Metro, StarTran, and the U.S. Department of Labor indicating that previous arrangements between the city and its then-labor contractor would continue under the Cap Metro/StarTran setup.
When asked previously about the Pittman letter, Cap Metro board chair and Mayor Pro Tem Mike Martinez replied via email: "The resistance to change began long before my tenure on the Board of Cap Metro and comes as no surprise. We began discussions about restructuring our labor model back in 2006 when I was first elected to the City Council. My goal is to ensure that all of our values are met to the largest extent possible with any decision the board makes regarding labor. I want to ensure that our workforce is treated well, our service remains at its highest standards and our transit agency in the best possible financial position. Any resistance to a state statute mandate should be discussed with the Texas Legislature. Our board will continue to do what is required of us at all levels of government."
"We don't really care what the Texas Legislature says," replies Pittman. "You can't contract out and still be compliant with 13(c)."