City of Macon v. Marshall, Civ. A. No. 77-155-Macon.

• Decision Date: 28 October 1977
• Docket Number: Civ. A. No. 77-155-Macon.
• Citation: 439 F. Supp. 1209
• Parties: CITY OF MACON, Plaintiff, v. Ray MARSHALL, United States Secretary of Labor, Defendant.
• Court: U.S. District Court — Middle District of Georgia

439 F. Supp. 1209

CITY OF MACON, Plaintiff, v. Ray MARSHALL, United States Secretary of Labor, Defendant.

Civ. A. No. 77-155-Macon.

United States District Court, M. D. Georgia, Macon Division.

October 28, 1977.

Andrew W. McKenna, Mitchel P. House, Jr., Macon, Ga., for plaintiff.

Denver L. Rampey, Jr., U. S. Atty., John D. Carey, Asst. U. S. Atty., M. D. Ga., Macon, Ga., David J. Anderson, R. Joseph Sher, Dept. of Justice, Washington, D. C., for defendant.

OWENS, District Judge:

Until March 15, 1973, Bibb Transit Company owned and operated a municipally franchised bus transportation system which served the City of Macon. Its drivers and maintenance employees were members of and exclusively represented by Local Division 898 of the Amalgamated Transit Union, AFL-CIO, for collective bargaining purposes.¹

Following notice that Bibb Transit Company because of monetary losses was ceasing its bus operations, the Mayor and Council of the City of Macon on February 28, 1973, formally approved² the city's purchase of Bibb Transit Company's buses and personal property, the rental of the company's Riverside Drive office-maintenance facility, the hiring of those Bibb Transit drivers who desired to make application to the city and the operation of a bus system by the city. Then Mayor Thompson in proposing all of this to the February 28, 1973, meeting of Mayor and Council stated ". . . The City will not become involved with any union."

On March 15 the city began operating its own bus transit system. Except for two drivers physically disqualified and five drivers who were on social security and thus disqualified, all of Bibb Transit Company's drivers and maintenance employees eventually became employees of the City of Macon. From then until now the city has refused³ to recognize or bargain with the union.

On April 17, 1973, the legislature of this state created the Macon Transit Authority as a "public corporation of the State of Georgia . . . not an arm or agency of the City of Macon nor of Bibb County but . . . a body corporate and politic . . the powers granted being . . . not restricted by limitations, constitutional or otherwise, upon the powers of the City of Macon nor of Bibb County." 1973 Ga.Laws 2914, 2915. (emphasis added). The City of Macon has never activated or used the Macon Transit Authority as thus legislatively created. It is a dormant public corporation waiting for its first breath of life. In many respects it is similar to the Metropolitan Atlanta Rapid Transit Authority which has been activated and is now operating Atlanta's bus transportation system. 1965 Ga. Laws at 2243, et seq.

On August 23, 1974, the City of Macon applied for a federal grant of $1,020,852 under the congressionally enacted Urban Mass Transportation Act, 49 U.S.C.A. § 1601, et seq., for the stated purpose of making capital improvements to its bus system. In January 1977 the city submitted a second application for a $132,409 operating assistance federal grant under said Act.

The Urban Mass Transportation Act authorizes the Secretary of Transportation to make grants or loans of tremendous sums from the federal treasury — at least TEN BILLION DOLLARS4—but specifies that "No financial assistance shall be provided . . . to any State or local public body or agency thereof for the purpose, directly or indirectly, of acquiring any interest in, or purchasing any facilities or other property of, a private mass transportation company, or for the purpose of constructing, improving, or reconstructing any facilities or other property acquired (after July 9, 1964) from any such company . . . unless (4) the Secretary of Labor certifies that such assistance complies with the requirements of section 1609(c) of this title." 49 U.S.C. § 1602(e). (emphasis added).

Title 49 U.S.C. § 1609(c) provides:

"(c) It shall be a condition of any assistance under section 1602 of this title 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 this title. The contract for the granting of any such assistance shall specify the terms and conditions of the protective arrangements." (emphasis added).

In response to the city's September 1974 application the Assistant Secretary of Labor wrote the city on December 18, 1974, and after stating the purpose of his letter and the provisions of law already recited, said:

"The Congress clearly indicated in the legislative history of the Urban Mass Transportation Act an intent through Section 13(c) to protect the rights, privileges and benefits of employees in the private sector who were assimilated into the public work force through Federally administered actions. The Congress also expressed its sense that the specific terms and conditions to be applied for the protection of employees in connection with a proposed grant of Federal financial assistance should, if possible, be the result of local bargaining and negotiations. Where mass transportation employees in the service area of a proposed project are represented for collective bargaining purposes, we look to the applicant and the union or unions representing those employees to reach agreement on fair and equitable employee protective terms and conditions upon which the Department of Labor can base its required certification. We stand ready and are frequently called upon to assist the parties in their efforts to reach an agreement. Should the parties, having made a good faith effort to reach an agreement, fail in that effort, the Secretary of Labor does have authority to determine the protective terms and conditions upon which he will base his certification.

In the Preapplication Program Narrative Statement, the City states that `There is no recognized labor union acting as bargaining representative for employees of the Macon Transit System.' I am aware, however, that up to the date in March of 1973 when the City began direct operation of transportation service through the Macon Transit System, the employees of the previous private operator, Bibb Transit Company, had been represented for collective bargaining purposes by the Amalgamated Transit Union. In fact, it was the inception of service by the City directly that resulted in the curtailment of the employees' collective bargaining rights.

In view of the circumstances in the Macon situation, I have determined that the Department of Labor should afford the Amalgamated Transit Union an opportunity to submit its views concerning the appropriate application of Section 13(c) to the City of Macon's proposed project. . . ."

The union's position was stated in its letter of January 22, 1975 to the Assistant Secretary as follows:

. . . . .

As you know, our Local Division 898 had long represented the employees of the Macon Transit System in their private employment status. Unfortunately, the City chose not to recognize the Union and to deprive these employees of their rights to collective bargaining and union representation upon the city's acquisition of the bus system on March 16, 1973. The foregoing is fully documented in an exchange of correspondence between the Union and the City, copies of which have previously been supplied to your office. There can be no doubt that the instant project involves the improvement of the formerly private transportation system within the meaning of § 3(e) of the Act. Accordingly, it is our position that specific protective arrangements must be inserted in the contract of assistance between the Federal Government and the City of Macon, which will effectively restore to the employees a continuation of their collective bargaining and representation rights which existed on the takeover date. Other mandatory provisions of a suitable employee protective arrangement would include terms and conditions to preserve the various employee rights, privileges and benefits, such as pension rights and benefits, as well as appropriate implementation of the statutory guarantees against worsening of employment position, offering benefits no less than those provided pursuant to § 5(2)(f) of the Interstate Commerce Act. In light of the City's continuing refusal to recognize the status of the Amalgamated Transit Union and its Local Division 898 as the duly designated representatives of the City's transit employees, it may be premature to specify the detail of an entire employee protective arrangement.

However, we would consider it appropriate for your office to call a meeting between the City and the representatives of the ATU for the purpose of establishing the validity of the ATU's continuing claim to represent these employees in their city employment under § 13(c) of the Act, and for the further purpose of bargaining between the ATU and the city representatives on an appropriate employee protective arrangement for this project, which would restore to these employees their full right to continued collective bargaining.

By letter to the Assistant Secretary dated February 3, 1975, the city disputed the Assistant Secretary's factual...