State House News Service | By Andy Metzger |Thursday, May 28

If Gov. Charlie Baker succeeds in a key aspect of his MBTA reform plan he will have uprooted a unique aspect of transit workers collective bargaining rights that harks back more than a century.

Unlike other public employee unions, when MBTA workers reach an impasse with management over contract negotiations and enter arbitration there is no mechanism for public officials to then reject the arbitrator’s award.

“The very first agreement with the Boston Elevated Railway Co. was determined by final and binding arbitration in 1912,” wrote Thomas Roth, who has led the Carmen’s Union Local 589’s negotiations on behalf of T workers since 1974.

In written testimony to lawmakers, Roth said, giving either side the ability to veto an arbitration award would be the “elimination of arbitration,” which he described as the “substitute for the strike.”

“The process has served the Boston public well,” Roth wrote. “There has never been a transit strike in Boston, contrary to neighboring cities of New York and Philadelphia where the public has suffered crippling transit strikes in recent years.”

Roth told the News Service that before a public entity acquired the area’s transit system, the Carmen had a right to strike but agreed to arbitrate contract disputes instead. Now a strike by MBTA workers would be illegal, though a wildcat strike is “always a possibility if the Union leadership loses control of the rank and file who may believe that their right to fair, bilateral collective bargaining has been eliminated,” Roth said in an email. He said, “I am not suggesting that a strike sanctioned by the Union is a possibility, but the possibility of an unsanctioned strike rises in the absence of a legitimate alternative.”

To Greg Sullivan, former inspector general and research director at the Pioneer Institute, granting authorities the ability to reject an arbitrated contract is the most important portion of Baker’s reform plan, which the governor hopes will lead to improved MBTA services.

Transportation Secretary Stephanie Pollack highlighted the arbitration aspect of Baker’s MBTA reform bill at a Transportation Committee hearing Wednesday.

“Standard operating procedure for many municipalities, particularly with respect to police and fire, is the ability to say whether or not an arbitrator’s award is affordable,” Baker told the News Service Thursday. “I think giving this control board the ability to do the same thing is just consistent with what we’ve already proposed to with other unions here in the Commonwealth and is consistent with what I would call good practice.”

To union officials, eliminating final and binding arbitration would alter a century-old practice and tip the scales away from workers.

“We’ve had it for 103 years,” said James O’Brien, president of the Boston Carmen’s Union Local 589. He said, “I think this is really the first time it’s been brought up that I can recall.”

Following a particularly harsh winter that contributed to inconsistent MBTA rail service, Baker proposed a reform package including installing a fiscal and management control board for the T with the power to raise fares beyond statutory limits and reject contract awards determined by an arbitrator.

Municipal governments have the power to reject arbitrated contracts, which can force the union back to the negotiating table, and according to an expert panel assembled by the governor the MBTA is the only governmental body in Massachusetts that includes final and binding arbitration without such a backstop.

Sen. Tom McGee, a Lynn Democrat and the co-chairman of the Transportation Committee, initially rejected the idea of a control board, saying it would add bureaucracy. McGee and the rest of the Senate then agreed to a Republican-backed amendment to the Senate budget establishing a control board that would not have the power to reject an arbitration award.

“Give me an example of when an arbitrated contract has disrupted the T’s service,” asked AFL-CIO President Steven Tolman, a former senator and former Amtrak railroad worker. He said, “A binding arbitration is a decision that’s provided by a trained expert that both sides agreed on.”

Noting that the Carmen’s Union did not object to the use of private shuttle buses when the snow knocked out rail service last winter, Tolman said giving management the power to reject an arbitrator’s award would “create friction.”

While suggesting that giving veto power to the control board could put the T’s capital projects “in jeopardy” because it threatens collective bargaining rights, O’Brien said, “We’re willing to work with the governor. We’re willing to work with the Legislature.”

“The fate of the T rests in the hands of a binding arbitrator because that is a law the Legislature put into effect,” said Sullivan, a former Democratic member of the House. He said, “It’s a voluntary choice that we’ve made … At the end of the day, the arbitrator is allowed to overrule the Legislature.”

Sullivan also rejected the idea that enacting the provision would put federal funds in jeopardy.

When the state’s transportation system was reformed and placed under the umbrella of the newly formed Massachusetts Department of Transportation under a 2009 law, the idea of providing a backstop to arbitrated contracts was not a major issue then, according to several people involved in drafting the legislation.

“Looking back we probably should have done that,” said Steve Baddour, who was the Senate chairman of the Transportation Committee during the 2009 reforms. He said, “That’s something that has to happen. I mean it happens in cities and towns. It brings balance to the system.”

Likening the Turnpike Authority in 2009 to the modern-day MBTA, Baddour said lawmakers were focused on rehabbing the turnpike, not the MBTA, at that time.

“The Turnpike Authority was the focus and it was in just as bad shape as the MBTA is in now,” Baddour told the News Service, noting that lawmakers abolished the authority and consolidated roads management under a new MassDOT.

Sen. Robert Hedlund, a Weymouth Republican and his party’s ranking member on the Transportation Committee, said the idea of requiring board approval for MBTA union agreements came up in 2009 but was not a major issue.

“It was just a political give and take at the time,” Hedlund told the News Service. He said, “That came up. That wasn’t central.”

The 2009 legislation removed the ability for the MBTA’s union to bargain over health care, a matter that later went to arbitration.

“They had a gold-plated health care plan, which was significantly diminished, especially for the retirees,” Tolman said.

The arbitration that involved the movement of T employees into the state employee health care system cost $10.5 million for the establishment of a health and wellness trust and $64 million in retroactive pay raises, according to the governor’s panel. Roth said the arbitrator merely “transferred the payment of existing benefits” to the trust.

“I was surprised that we did what we did in that bill. I mean we went pretty far in that bill given the political realities of the time,” Hedlund said.

“We had the luxury of time,” Baddour said. He said, “There were plenty of sticky issues.”

With the beginning of next winter now only seven months away, Baker has struck an urgent tone in his call for reforms.

“The snow’s melted. The weather’s nice. We just had a beautiful weekend. This is exactly when a lot of the heavy lifting associated with getting ready for next winter should be starting,” Baker said earlier in May after meeting with transit riders.

Following a public hearing on Baker’s bill in Medford Wednesday, Transportation Committee Co-chairman Rep. William Straus said the bill is the panel’s “highest priority” but declined to specify a deadline for releasing a reworked version of the governor’s legislation.

— STATE HOUSE NEWS SERVICE