State of California v. United States Department of Labor et al

Filing 121

ORDER signed by District Judge Kimberly J. Mueller on 8/19/16 ORDERING that the parties' cross MOTIONS are GRANTED in part and DENIED in part. The court grants Plaintiffs' request to amend the supplemental complaint to allege a claim based on the DOL's denial of certification under section 13 (c)(1) with regard to MST's classic employees. An amended supplemental complaint shall be filed within seven days. (Mena-Sanchez, L)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
STATE OF CALIFORNIA, et al.,
Plaintiffs,

No. 2:13-cv-02069-KJM-DB
ORDER

v.
UNITED STATES DEPARTMENT OF LABOR, et al.,
Defendants.

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In 2012, California passed a law that substantially reformed the pension system for public employees, the California Public Employees Pension
Reform Act (PEPRA). Soon after PEPRA was passed, two California transit
agencies subject to PEPRA submitted applications for federal funding under
the Urban Mass Transportation Act of 1964 (UMTA). UMTA requires that
before the federal government can approve a grant, the U.S. Department of
Labor (DOL) must provide a specific certification: that arrangements between
the transit employers applying for funds and their employees include provisions necessary for the preservation of certain employee rights and for the
continuation of the employees’ collective bargaining rights, among other
things.
The DOL denied the two transit agencies’ requests because, as DOL
determined, PEPRA allowed for neither preservation of the transit employees’
pension rights nor a continuation of their collective bargaining rights over
pensions. The two transit agencies successfully challenged the DOL’s decisions under the Administrative Procedure Act (APA) in this court in 2013, and
the matter was remanded to the DOL for reconsideration. The DOL issued

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new decisions in 2015, again denying certification. Again the transit agencies
sought relief in this court. The DOL moved to dismiss or for summary judgment, and the transit agencies likewise sought summary judgment in response.
Those motions are now pending. A union of the transit agencies’ employees,
the Amalgamated Transit Union (ATU), filed an amicus curiae brief in support of the DOL’s decisions.

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The court held a hearing on those motions on May 13, 2016. Kathleen
Kraft and Stephen Higgins appeared for the plaintiffs, Sacramento Regional
Transit District (SacRT) and Monterey Salinas Transit (MST). Ryan Parker
and Susan Ullman appeared for the DOL. Benjamin Lunch, who represents
ATU, observed the hearing. The DOL’s motion is denied in part, the transit
agencies’ motion is granted in part, the plaintiffs are granted leave to amend
their supplemental complaint, and the parties are both allowed short supplemental briefs as explained below.

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I.

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BACKGROUND
A.

The Urban Mass Transportation Act of 1964

Congress enacted UMTA to further the United States’ interest in “the
development and revitalization of public transportation systems.” 49 U.S.C.
§ 5301(a). Among other purposes, UMTA is meant to provide federal funding
for public transportation and “promote the development of the public transportation workforce.” Id. § 5301(b)(1)–(8). UMTA prompted a nationwide shift
away from private to public operation of mass transportation systems. See
Jackson Transit Auth. v. Amalgamated Transit Union, 457 U.S. 15, 17 (1982);
Kramer v. New Castle Area Transit Auth., 677 F.2d 308, 310 (3d Cir. 1982).
UMTA allows state and local transportation agencies to obtain federal

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grants. Transportation agencies can obtain these grants only with a certification

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from the DOL. Section 13(c) of UMTA, 49 U.S.C. § 5333(b), specifies what this

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certification entails: “[T]he interests of employees affected by the assistance shall

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be protected under arrangements the Secretary of Labor concludes are fair and

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equitable.” Id. § 5333(b)(1). These arrangements “shall include provisions that

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may be necessary for,” among other things, (1) “the preservation of rights, privi-

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leges, and benefits (including continuation of pension rights and benefits) under

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existing collective bargaining agreements or otherwise,” and (2) “the continua-

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tion of collective bargaining rights.” Id. § 5333(b)(2)(A)–(B). The first require-

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ment, “preservation,” is commonly cited as section 13(c)(1) of UMTA, and the

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second requirement, “continuation,” is commonly referred to as section 13(c)(2)

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of the same law.

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B.

The California Public Employees’ Pension Reform Act
(PEPRA)

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As summarized in this court’s previous orders, in 2012, the Governor of

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California signed PEPRA into law. California v. U.S. Dep’t of Labor (Remand Or-

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der), 76 F. Supp. 3d 1125, 1130 (E.D. Cal. 2014); California v. U.S. Dep’t of Labor

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(Enforcement Order), ___ F. Supp. 3d ___, 2016 WL 98746, at *1–2 (E.D. Cal.

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Jan. 8, 2016). As elected officials often do, the Governor issued a press release

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describing PEPRA as a “sweeping reform” that limited pension benefits for state

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employees, increased the retirement age, required state employees to pay for half

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of their pension costs, and stopped abusive pension practices. Office of Gov.

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Edmund G. Brown, Jr., Press Release (Aug. 28, 2012).1

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This court, of course, looks to PEPRA’s relevant sections, which provide

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that employees hired after January 1, 2013 are “new” employees and must pay

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half of the costs of their defined benefit retirement plans: “Equal sharing of nor-

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mal costs between public employers and public employees shall be the standard.”

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Cal. Gov’t Code § 7522.30(a). Employees hired before January 1, 2013 are “clas-

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sic” employees and may also be required to pay the same fifty percent share after

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good-faith collective bargaining. Id. § 20516.5(c). PEPRA sets January 1, 2018 as

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the effective deadline for collective bargaining on this contribution requirement.

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See id. Beginning on that date, a public employer “may require that members pay

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fifty percent of the normal cost of benefits.” Id. § 20516(b), (c).

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PEPRA also makes changes to the way retirement benefits are calculated,

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both for new and classic employees. If a public employee’s retirement benefits are

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calculated as a percentage of his or her pre-retirement compensation, PEPRA

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sets specific limits on the amount of the employee’s compensation that can be

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used in that calculation: Public employees may no longer purchase “nonqualified

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service credit” or “airtime.”2 Cal. Gov’t Code § 7522.46. For new employees,
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At the time this order was filed, this press release was available at
https://www.gov.ca.gov/news.php?id=17694.
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PEPRA defines these phrases by reference to the U.S. Internal Revenue
Code. See Cal. Gov’t Code § 7522.46(a) (citing 26 U.S.C. § 415(n)(3)(C)). Generally
speaking, “nonqualified service time” or “airtime” is made up of time credits an employee may purchase to increase his or her retirement benefits. These credits add fictitious years to the true number of years the employee worked before retirement. See
26 U.S.C. § 415(n). The additional years are significant because retirement benefits
are often calculated by multiplying a percentage of the employee’s pre-retirement

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PEPRA defines a percentage-based formula for the calculation of retirement ben-

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efits; benefits are calculated using a multiplier that increases with the employee’s

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age at retirement, from one percent at the earliest retirement age, fifty-two, to a

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maximum of two-and-one-half percent at age sixty-seven. See id. § 7522.20(a).

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Previously, the earliest retirement age was fifty, and the multiplier reached its

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maximum value at age sixty-three. 2013 Administrative Record (AR) 1321.

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PEPRA also prevents “pension spiking”—pre-retirement, short-term increases in

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an employee’s wages to inflate pension benefits—by calculating benefits for new

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employees based on the employee’s highest average annual salary in the three

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years leading up to retirement. Cal. Gov’t Code § 7522.32. For new employees,

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the final level of compensation that may be taken into account excludes unused

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vacation time, ad hoc payments and bonuses, and other amounts. Id.

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§ 7522.34(c).

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C.

The Plaintiff Transit Agencies

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SacRT is a special regional mass transit district based in Sacramento.

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Remand Order, 76 F. Supp. 3d at 1129. It operates dozens of bus routes, thou-

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sands of bus stops, almost forty miles of light rail track, fifty light rail stations,

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more than thirty bus-to-light-rail transfer stations, and eighteen park-and-ride

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lots. Id. at 1130. It relies heavily on federal funding. Id. at 1130–31.

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Many of SacRT’s approximately one thousand employees are represent-

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ed by the ATU. Id. 1129–30. SacRT alleges it has authority under California

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statute to establish an independent retirement system for its employees. Id.

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Through collective bargaining with the ATU, SacRT established a pension plan

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for its unionized employees.3 Id. The plan is a defined benefit plan, meaning

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SacRT pays a fixed benefit to retirees under a formula: a retiring employee’s ben-

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efits are calculated as a percentage of his or her pay multiplied by the number of

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years he or she worked for SacRT, known as the number of years “in service.”

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See 2013 AR 407–27. SacRT funds these benefits entirely; employees do not con-

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tribute to the plan fund. See 2013 AR 402, 416. A member of the retirement plan

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is eligible for retirement if he or she has worked ten years or more at age fifty-five

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or if he or she has completed twenty-five years of service, regardless of age. 2013

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AR 413. Benefits for employees who retire at age fifty-five with twenty-five years

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of service are calculated using a two percent multiplier, and benefits for employcompensation by the number of years that employee worked. If an employee can
artificially add years to her tenure, she can add to her retirement benefits.
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The SacRT and MST plan provisions described here are those the DOL reviewed on submission of the plaintiffs’ funding application.

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ees who retire at age sixty or later with thirty or more years’ service are calculat-

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ed using a two-and-one-half percent multiplier. Id. Cash received in lieu of un-

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used vacation time, ad hoc payments, or shift differentials, and other amounts

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may be used in calculating benefits. 2013 AR 410. SacRT and ATU have negoti-

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ated over this benefit scheme in the past. 2013 AR 213.

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MST is the consolidated transportation services agency for Monterey

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County, California. Remand Order, 76 F. Supp. 3d at 1133. Some of MST’s em-

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ployees are represented by the ATU. Id. For employees hired before June 30,

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2011, MST agreed to fully fund pension contributions for its defined benefits

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plan. See 2013 AR 802–10, 24. Employees hired after June 30, 2011 pay half of

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the contributions. See 2013 AR 824. Under this plan, fifty-five is the normal age

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of retirement, and employees receive retirement benefits equal to the product of

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their final compensation, a percentage multiplier, and the number of years of

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their service. 2013 AR 793–94, 824, 829–31. The MST plan also allows employ-

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ees to purchase airtime and allows bonuses, overtime, and other amounts to be

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included in the calculation of retirement benefits. See 2013 AR 794. The amount

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of compensation used in this calculation is the highest twelve-month average

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compensation. Id.

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D.

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SacRT’s and MST’s Grant Applications, 2013 Complaint and
Remand Order

This case concerns four applications for federal funding. The first was

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submitted by SacRT in November 2012, which, as noted above, required the

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DOL’s certification under UMTA section 13(c). ATU objected and argued that

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the DOL should not certify the grant, citing PEPRA provisions that raise mini-

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mum retirement ages, define formulas for calculating pensions, and require new

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employees to contribute half the cost of their retirement plan. 2013 AR 211–15.

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Among other legal authorities, ATU cited Amalgamated Transit Union v. Donovan,

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767 F.2d 939 (D.C. Cir. 1985), which it interpreted to hold that the DOL must

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not certify arrangements under UMTA section 13(c) “where workers previously

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enjoyed collective bargaining rights but those rights were subsequently dimin-

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ished or eliminated altogether by state law.” 2013 AR 214. SacRT disagreed with

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ATU’s description of PEPRA and distinguished PEPRA from the state law at

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issue in Donovan. 2013 AR 699–702. The DOL ordered ATU and SacRT to ne-

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gotiate in an effort to find a resolution on their own, but those negotiations were

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unsuccessful. In April 2013, the DOL declined to issue an interim certification,

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and in September 2013, the DOL issued its final decision, which denied certifica-

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tion in light of PEPRA. 2013 AR 120–36.

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The remaining three funding applications were submitted by the Califor-

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nia Department of Transportation on MST’s behalf in September 2013, and by

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MST on its own behalf in December 2012 and January 2013. ATU objected to

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all three applications and argued PEPRA precluded certification under UMTA

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section 13(c). Despite negotiations, ATU and MST were unable to resolve their

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dispute. They submitted briefing to the DOL, and in September 2013, the DOL

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issued its final decision. As in SacRT’s case, the DOL declined to certify MST’s

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arrangements, citing PEPRA. 2013 AR 190–207.

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SacRT and MST filed a complaint in this court in October 2013. They

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argued that the DOL had acted arbitrarily and without authority in violation of

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the APA; that it had prejudged their applications, also in violation of the APA;

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and that the DOL’s decisions imposed unconstitutional conditions on the award

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of federal funds. ECF No. 1. In December 2014, this court issued an order dis-

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missing the transit agencies’ constitutional claims, denying the DOL’s motion to

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dismiss the other claims, granting the plaintiffs’ motion for summary judgment

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on the APA claims, and remanding the matter to the DOL for further proceed-

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ings. Remand Order, 76 F. Supp. 3d at 1148. The court identified five aspects of

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the DOL’s decision that violated the APA.

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First, the DOL had relied on Donovan, supra, 767 F. 2d 939, without ac-

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counting for factual differences between that case and this one. See Remand Or-

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der, 76 F. Supp. 3d at 1142–43. Specifically, in Donovan, the circuit court re-

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versed the certification of an agreement that did not permit collective bargaining

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on several subjects previously subject to bargaining. 767 F.2d at 941, 943.

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PEPRA, by contrast, does not eliminate collective bargaining rights or grant

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SacRT and MST unilateral authority; rather, it changes the parameters within

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which collective bargaining may proceed. See Remand Order, 76 F. Supp. 3d

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at 1142–43.

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Second, the DOL had overlooked the fact that under federal labor policy,

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“[b]oth employers and employees come to the bargaining table with rights under

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state law that form a backdrop for their negotiations.” Id. at 1143 (quoting Fort

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Halifax Packing Co., Inc. v. Coyne, 482 U.S. 1, 21 (1987)) (alteration in original).

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Pension reform may be part of this “backdrop,” because no provision of federal

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labor policy “expressly forecloses all state regulatory power with respect to those

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issues, such as pension plans, that may be the subject of collective bargaining.”

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Id. (quoting Malone v. White Motor Corp., 435 U.S. 497, 504–05 (1978) (plurality

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opinion)).

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Third, “by finding that PEPRA prevents collective bargaining over pen-

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sions, [the DOL] essentially determined that a pension is necessarily a defined

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benefit plan . . . .” Id. But “nothing in PEPRA prevents bargaining over defined

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contribution plans, which are another form of pension.” Id. The DOL had there-

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fore written a substantive term into the parties’ agreement, which it had no au-

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thority to do. Id.

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Fourth, the DOL had not considered “the realities of public sector bar-

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gaining.” Id. Bargaining in the public sector differs from bargaining in the private

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sector. For example, a private employer may send a single representative to the

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bargaining table, with the authority to make a binding agreement, whereas a pub-

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lic employer may not be able to make concessions or change policy so simply. In

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short, “[i]n the public sector, agreement at the bargaining table may be only an

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intermediate, not a final, step in the decisionmaking process.” Id. at 1143–44

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(quoting Robinson v. State of New Jersey, 741 F.2d 598, 607 (3d Cir. 1984)).

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Fifth, to conclude that PEPRA did not preserve existing collective bar-

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gaining rights of employees hired after January 1, 2013, the DOL relied on Wood

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v. National Basketball Association, 602 F. Supp. 525, 529 (S.D.N.Y. 1984), and sim-

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ilar cases, but it did not consider whether factual differences between those cases

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and this one undermined their persuasive effect. See id. at 1144–45. In this case,

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unlike those on which the DOL relied, “neither ‘new’ employees nor the em-

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ployers are pursuing individual agreements or are seeking some advantage out-

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side the [collective bargaining agreement], but rather are constrained by PEPRA

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as a backdrop to their employment relationship.” Id. at 1145. On a related note,

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the DOL essentially redefined “bargaining unit” when it found that future em-

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ployees who had not yet been hired were covered by a collective bargaining

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agreement. Id.

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E.

DOL’s 2015 Denial Letters

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The DOL initially noticed an appeal of this court’s 2014 remand order,

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but later dismissed that appeal voluntarily over the plaintiffs’ objections. See Not.

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Appeal, ECF No. 83; Order Dismissing Appeal, ECF No. 86. On August 13,

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2015, the DOL issued its decisions on remand, concluding as it did before that

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the plaintiffs’ grant applications could not be certified under section 13(c). See

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SacRT Decision, ECF No. 88-4; MST Decision, ECF No. 88-5. It reached this

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conclusion on two independent grounds: (1) as applied by SacRT and MST,

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“PEPRA prevents the ‘continuation of collective bargaining’ as that phrase is

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used in section 13(c)(2)”; and (2) as applied by SacRT and MST, “PEPRA pre-

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vents ‘the preservation of rights, privileges, and benefits (including continuation

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of pension rights and benefits) under existing collective bargaining agreements,’

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contrary to section 13(c)(1).” SacRT Decision at 8; MST Decision at 8.

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With respect to section 13(c)(2), because the DOL could not accept this

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court’s reading of Donovan, it instead interpreted the language and legislative his-

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tory of section 13(c) without reference to Donovan. See SacRT Decision at 7–11;

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MST Decision at 7–11. It also consulted several mid-twentieth-century judicial

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decisions interpreting the National Labor Relations Act (NLRA) to understand

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the likely contemporary meaning of “collective bargaining” in the pension con-

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text. SacRT Decision at 11–13; MST Decision at 11–13. Together, this analysis

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led the DOL to conclude that Congress meant to prevent the “lessening” or

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“worsening” of collective bargaining rights, even if collective bargaining rights

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were not completely eliminated. The NLRA decisions it consulted confirmed this

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understanding, and the DOL summarized its determination that “as a general

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rule, section 13(c) certification is unavailable to a transit agency that unilaterally

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sets or changes the terms of pensions covering employees in a collective bargain-

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ing unit.” SacRT Decision at 13; MST Decision at 13.

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The DOL also considered whether PEPRA is the “kind of state law that

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can remove issues from the collective bargaining obligation established by section

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13(c).” SacRT Decision at 13; MST Decision at 13. It contrasted PEPRA with

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state laws that Congress had not meant to preempt when it passed the NLRA.

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These state laws, it found, were beneficial to employees on balance: they estab-

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lished minimum labor standards or ensured adequate mental health treatment,

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for example. SacRT Decision at 13–14; MST Decision at 13–14. In contrast,

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PEPRA more closely resembled the types of state laws that Congress had meant

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to preempt, including state laws that superficially served a benign purpose but

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actually overrode collectively bargained agreements. See SacRT Decision at 14–

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17; MST Decision at 14–16.

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The DOL then considered the realities of collective bargaining in the pub-

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lic sector. SacRT Decision at 17–18; MST Decision at 17–18. It found that

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SacRT was required by state law to bargain collectively, and that SacRT could

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bargain without the need for legislative ratification. SacRT Decision at 17. Simi-

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larly, MST was not required to obtain legislative ratification of its pension poli-

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cies. MST Decision at 17. The DOL also found that although public transit au-

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thorities come to the bargaining table under the watchful eye of a state-policy

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chaperone, Congress had long understood similar policy concerns. It had decided

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to allow states a choice: provide for the continuation of collective bargaining

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rights, regardless of state policy, or forego federal funding. SacRT Decision at

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17–18; MST Decision at 17–18. The DOL noted that Congress had allowed

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states to forbid public transportation strikes and decide on a form of dispute reso-

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lution other than binding arbitration, which it understood to indicate that Con-

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gress had already addressed the issue of conflicting state policy. SacRT Decision

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at 17–18; MST Decision at 17–18. As for budget constraints, the DOL wrote,

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“The solution is for parties with collective bargaining obligations to bargain with-

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in budget constraints, not for an employer to use budget constraints as a reason

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for unilaterally removing a subject from bargaining.” SacRT Decision at 18;

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MST Decision at 17. The DOL therefore found that the realities of public-sector

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bargaining did not allow it to certify SacRT’s or MST’s arrangements.

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F.

Enforcement Order and Supplemental Complaint

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Following the DOL’s 2015 decisions, SacRT and MST returned to this

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court and argued that the DOL had not complied with the court’s 2014 order.

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They asked the court to enforce that order and allow them to file a supplemental

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complaint.

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The court granted the motion to enforce in part. See generally Enforce-

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ment Order, 2016 WL 98746. First, the court concluded that because the DOL

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had not relied on Donovan at all, its decision was not inconsistent with the Re-

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mand Order, where the court found the DOL had previously relied on Donovan

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reflexively. Id. at *4. Second, the court found that because the DOL’s decisions

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on remand had considered whether PEPRA formed a permissible state-law

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backdrop, those decisions were not inconsistent with the Remand Order. Id.

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Third, because DOL no longer arbitrarily equated pensions and defined benefit

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plans, its decisions were not inconsistent with the Remand Order. Id. at *5. Simi-

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larly, on remand the DOL had addressed the realities of collective bargaining in

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the public sector, so the court found its decisions were not inconsistent with the

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Remand Order in this way. Id. But because the DOL rejected this court’s conclu-

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sions with respect to whether “new” employees, who had not yet been hired,

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were protected by existing collective bargaining agreements, the agencies’ motion

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was granted and the inconsistent portions of the DOL’s SacRT decision on re-

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mand were vacated. Id. at *5. As a matter of remedies, the court did not remand

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the case again because the inconsistent portions were presented as alternative

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grounds for the DOL’s decisions. Id.

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Instead, the transit agencies’ were allowed to file a supplemental com-

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plaint. Id. at *6–7. In their supplemental complaint, SacRT and MST allege the

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DOL’s 2015 decisions on remand violated the APA by interpreting sections

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13(c)(1) and (2) of the UMTA arbitrarily, capriciously, and in excess of the

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DOL’s authority. In their first claim, the agencies argue the DOL “erroneously

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concluded that ‘lessening or diminution of collective bargaining rights, even

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when they are not entirely eliminated, violates section 13(c).’” Suppl. Compl.

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¶¶ 89–90, ECF No. 88-2. They argue the DOL’s analysis was “one-sided” and

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“incomplete,” “ignored both the historical context for the requirement to contin-

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ue collective bargaining rights,” “misapplied judicial precedent under the Na-

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tional Labor Relations Act,” reached conclusions that contradicted this court’s

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previous order, “persisted in its position that ‘pension rights’ mean only ‘defined

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benefit pension rights,’” and “rendered its decision without adequately distin-

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guishing prior, inconsistent Department interpretations and application of Sec-

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tion 13(c).” Id. ¶¶ 92–96.
In the plaintiffs’ second claim, they argue the DOL erroneously “found

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that new employees have pension rights under existing collective bargaining

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agreements that predate their employment.” Id. ¶ 106. They argue the DOL arbi-

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trarily “decreed that any state-law change to the terms of a collective bargaining

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agreement violates Section 13(c)(1) on the ground that such an agreement is ap-

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plicable to new employees.” Id. ¶ 107.
The DOL moved to dismiss the supplemental complaint, and in the al-

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ternative, requested summary judgment that its 2015 decisions did not violate the

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APA. Def.’s Br., ECF No. 99-1. The plaintiffs filed a cross-motion for summary

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judgment and opposition, Pls.’ Br., ECF No. 104-1, and the parties each filed

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responsive briefing, Def.’s Resp., ECF No. 107; Pls.’ Resp., ECF No. 110. With

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the court’s permission, the ATU also filed an amicus curiae brief in support of the

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DOL’s motion, ATU Br., ECF No. 106, and the plaintiffs filed a response, Pls.’

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Resp. ATU, ECF No. 111.

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II.

THE LAW OF THIS CASE

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The parties both ask this court to revisit conclusions in the Remand and

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Enforcement Orders that are adverse to their current positions. The court there-

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fore clarifies what role those orders play here.

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When a court makes a decision in a final order, for example by granting

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summary judgment, and the decision is express or necessarily implied, the court

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must generally avoid revisiting that decision later on in the same case. See United

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States v. Lummi Nation, 763 F.3d 1180, 1185 (9th Cir. 2014). This is one aspect of

34

the “law of the case” doctrine. Id. It is a rule of “judicial intervention designed to

35

aid in the efficient operation of court affairs.” Id.

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The law of the case doctrine does not bar a district court from reconsider-

2

ing its own non-final rulings in the same case. Peralta v. Dillard, 744 F.3d 1076,

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1088 (9th Cir. 2014) (en banc), cert. denied, 135 S. Ct. 946 (2015). For example,

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the court may reconsider a prior order in which it denied summary judgment, id.

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at 1088–89, or granted a preliminary injunction, see Ctr. for Biological Diversity v.

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Salazar, 706 F.3d 1085, 1090 (9th Cir. 2013). A district court also has discretion

7

to depart from the law of the case if the first decision was clearly erroneous, if the

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law, evidence, or other circumstances changed in the meantime, or if applying

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the law of the case would work a manifest injustice. See, e.g., Gallagher v. San Die-

10

go Unified Port Dist., 14 F. Supp. 3d 1380, 1389 (S.D. Cal. 2014) (citing United

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States v. Cuddy, 147 F.3d 1111, 1114 (9th Cir. 1998)).

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On a similar note, the Ninth Circuit and Supreme Court recognize a dis-

13

trict court’s inherent authority to reconsider non-final, or interlocutory decisions:

14

“As long as a district court has jurisdiction over the case, then it possesses the

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inherent procedural power to reconsider, rescind, or modify an interlocutory or-

16

der for cause seen by it to be sufficient.” City of Los Angeles v. Santa Monica

17

BayKeeper, 254 F.3d 882, 885 (9th Cir. 2001) (citation omitted). This is also the

18

practical effect of Federal Rule of Civil Procedure 54(b), which authorizes a dis-

19

trict court to revise “any order or other decision . . . that adjudicates fewer than

20

all the claims or the rights and liabilities of fewer than all the parties . . . at any

21

time before the entry of a judgment adjudicating all the claims and all the parties’

22

rights and liabilities.” That said, as a general rule, district courts do not revisit

23

their interlocutory decisions when the law and evidence are unchanged, when no

24

clear error has occurred, and when no manifest injustice would result. See, e.g.,

25

Cachil Dehe Band of Wintun Indians of Colusa Indian Cmty. v. California, 649 F.

26

Supp. 2d 1063, 1069–70 (E.D. Cal. 2009). In this way, a district court’s decision

27

to depart from the law of the case or to reconsider an interlocutory order will of-

28

ten rest on similar reasoning. Cf. Jadwin v. Cty. of Kern, No. 07-0026, 2010 WL

29

1267264, at *9 (E.D. Cal. Mar. 31, 2010) (district courts look to similar standards

30

when deciding whether to reconsider under Rule 54(b) and whether to grant a

31

motion under Rules 59(e) or 60(b)).

32

In this case, the Remand Order was a final order: it dismissed claims,

33

granted summary judgment, and remanded the matter to the DOL, and judg-

34

ment was entered on the same day it was filed. ECF No. 82. The court therefore

35

considers its decisions in that order to be the law of this case. Moreover, the

36

DOL appealed the Remand Order, but voluntarily dismissed its appeal. Alt-

37

hough the question ultimately is one for an appellate tribunal to decide, this like-

38

ly prevents further appellate review of the merits of that appeal. See United States

11

1

v. Arevalo, 408 F.3d 1233, 1236 (9th Cir. 2005) (quoting Barrow v. Falck, 977 F.2d

2

1100, 1103 (7th Cir. 1992)). The DOL may not now relitigate the merits of the

3

Remand Order.
The Enforcement Order, by contrast, did not finally adjudicate any

4
5

claims, but addressed a motion based on the previously filed final order and al-

6

lowed the case to continue by way of a supplemental complaint. The Enforce-

7

ment Order was therefore an intermediate-stage order that this court may recon-

8

sider or modify, even in the absence of any intervening evidentiary or legal de-

9

velopments.
Rather than dividing the parties’ arguments and this court’s previous

10
11

findings more granularly into final and non-final categories here, the court ad-

12

dresses its previous decisions as they arise in context below.

13

III.

14

LEGAL STANDARD
When, as here, a plaintiff challenges a federal agency’s actions under the

15

APA, the district court assumes an appellate role, and the entire case presents a

16

question of law. Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir.

17

2001). The court does not identify disputed issues of material fact, as it would in

18

a typical summary judgment proceeding. Occidental Eng’g Co. v. Immigration &

19

Naturalization Serv., 753 F.2d 766, 769 (9th Cir. 1985); S. Yuba River Citizens

20

League v. Nat’l Marine Fisheries Serv., 723 F. Supp. 2d 1247, 1256 (E.D. Cal. 2010).

21

Rather, the reviewing court’s function “is to determine whether or not as a mat-

22

ter of law the evidence in the administrative record permitted the agency to make

23

the decision it did.” Occidental Eng’g, 753 F.2d at 769; see also Karuk Tribe of Cal. v.

24

U.S. Forest Serv., 681 F.3d 1006, 1017 (9th Cir. 2012) (“Because this is a record

25

review case, we may direct that summary judgment be granted to either party

26

based upon our review of the administrative record.”).

27

The court now turns to the plaintiffs’ first claim, under section 13(c)(2),

28

which concerns “the continuation of collective bargaining rights.” As summa-

29

rized above, the DOL concluded on remand that SacRT and MST have imple-

30

mented PEPRA in a way that prevents the continuation of their employees’ col-

31

lective bargaining rights. SacRT and MST argue the DOL’s decisions both misin-

32

terpreted the UMTA and were arbitrary and capricious.

12

1

IV.

THE CONTINUATION OF COLLECTIVE BARGAINING

2

RIGHTS

3

A.

4

This case concerns foremost the DOL’s interpretation of the UMTA.

Statutory Interpretation—is the UMTA Unambiguous?

5

When a district court is asked to review an agency’s interpretation of a statute,

6

the court must first check whether the statute’s language itself answers the ques-

7

tions in the case, provided that the agency did not act unconstitutionally or out-

8

side the authority Congress allotted to it. United States v. Mead Corp., 533 U.S.

9

218, 227–28 & n.6 (2001); Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467

10

U.S. 837, 842–43 (1984). “[T]he court, as well as the agency, must give effect to

11

the unambiguously expressed intent of Congress,” Chevron, 467 U.S. at 842–43,

12

and agencies must always “operate within the bounds of reasonable interpreta-

13

tion,” Util. Air Regulatory Grp. v. Envt’l Prot. Agency, ___ U.S. ___, 134 S. Ct. 2427,

14

2442 (2014) (citation and quotation marks omitted). The judicial branch is the

15

final authority on statutory interpretation, Chevron, 467 U.S. at 843 n.9; that is,

16

an agency receives no consideration or deference from federal courts when it in-

17

correctly interprets unambiguous law.

18

The court must therefore first decide whether “the continuation of collec-

19

tive bargaining rights” has an unambiguous meaning. Id. at 842–43. Each party

20

argues the other’s interpretation is simply incorrect. This itself suggests the

21

phrase is ambiguous, which the court concludes it is, as explained below.

22

A statute’s words are always the place to begin. Caraco Pharm. Labs., Ltd.

23

v. Novo Nordisk A/S, ___ U.S. ___, 132 S. Ct. 1670, 1680 (2012); Jackson Transit,

24

457 U.S. at 23. Unless Congress says otherwise, those words have the same

25

meanings as usual. Roberts v. Sea-Land Servs., Inc., ___ U.S. ___, 132 S. Ct. 1350,

26

1356 (2012). Context also matters, both “the specific context in which that lan-

27

guage is used and the broader context of the statute as a whole.” Robinson v. Shell

28

Oil Co., 519 U.S. 337, 341 (1997). One interpretation of a word or phrase might

29

lead to a result that clashes with the rest of the law. Util. Air, 134 S. Ct. at 2442.

30

Context might even overwhelm the most grammatically correct understanding of

31

a single word. United States v. X-Citement Video, Inc., 513 U.S. 64, 69–70 (1994).

32

Here, section 13(c) provides, in relevant part,

33

(1) As a condition of financial assistance . . . the interests of employees affected by the assistance shall be protected under arrangements
the Secretary of Labor concludes are fair and equitable. . . .

34
35
36
37

(2) Arrangements under this subsection shall include provisions that
may be necessary for—

13

3

(A) the preservation of rights, privileges, and benefits (including
continuation of pension rights and benefits) under existing collective bargaining agreements or otherwise;

4

(B) the continuation of collective bargaining rights;

5

(C) the protection of individual employees against a worsening
of their positions related to employment;

1
2

6

(D) assurances of employment to employees of acquired public
transportation systems;

7
8

10

(E) assurances of priority of reemployment of employees whose
employment is ended or who are laid off; and

11

(F) paid training or retraining programs.

9

12

49 U.S.C. § 5333(b)(1)–(2).

13

SacRT and MST believe the phrase “the continuation of collective bar-

14

gaining rights” means the opposite of “the end of collective bargaining rights.”

15

By contrast, the DOL concluded on remand and argues now that the phrase

16

means the opposite of the “diminution” or “lessening” of collective bargaining

17

rights. Neither interpretation is obviously correct. Consider, for example, the

18

D.C. Circuit’s interpretation of the phrase in the mid-1980s. The Donovan court

19

understood “the continuation of collective bargaining rights” to mean

20

“[m]aintaining the status quo” or “substantially preserving collective bargaining

21

rights that had been established by federal labor policy.” 767 F.2d at 948. This

22

suggests the DOL’s interpretation is reasonable: the status quo is not maintained

23

and a right is not “preserved” if it diminishes. But only two years after Donovan

24

was decided, two different panels of the same court found “the ordinary meaning

25

of the term ‘continuation’ . . . would seem to be ‘without interruption.’” United

26

Transp. Union, AFL-CIO v. Brock, 815 F.2d 1562, 1564 (D.C. Cir. 1987) (quoting

27

Amalgamated Transit Union v. Brock, 809 F.2d 909, 916 (D.C. Cir. 1987)).4 This

28

suggests SacRT and MST have it right. Donovan therefore does not provide a dis-

29

positive definition of “continuation.”

30

These conflicting readings fit the many synonyms and antonyms of “con-

31

tinuation” suggested by a variety of new and old reference guides. See, e.g., Web-

32

ster’s New World Dictionary of the American Language 319 (college ed. 1962) (defin-

33

ing “continuation” as “a keeping up or going on without interruption; prolonged

34

and unbroken existence or maintenance”); Roget’s Int’l Thesaurus 32–34, 68 (3rd
4

Although United Transportation Union v. Brock and Amalgamated Transit Union v. Brock were before different panels, both opinions were written by the same
judge.

14

1

ed. 1962) (synonyms of “continuation” include extension, maintenance, suste-

2

nance, and persistence; antonyms include cessation, close, discontinuance, end,

3

ending, and abandonment); Merriam-Webster’s Online Dictionary (defining

4

“continuation” as “the act or fact of continuing in or the prolongation of a state

5

or activity”; suggesting “abidance, ceaselessness, continuance, continuity, con-

6

tinuousness, durability, duration, endurance, persistence, subsistence” as syno-

7

nyms and “cessation, close, discontinuance, discontinuity, end, ending, expira-

8

tion, finish, stoppage, surcease, termination” as antonyms);5 Oxford English

9

Online Dictionaries (defining “continuation as “[t]he action of carrying some-

10

thing on over a period of time or the process of being carried on” or “[t]he state

11

of remaining in a particular position or condition”; suggesting “carrying on, con-

12

tinuance, extension, prolongation, protraction, perpetuation” as synonyms and

13

“end” as an antonym);6 American Heritage Online Dictionary (defining “contin-

14

uation” as “[t]he act or fact of going on or persisting” and “[t]he state of continu-

15

ing in the same condition, capacity, or place”).7

16

On remand, the DOL relied on the 1962 Webster’s New World Diction-

17

ary’s definition, quoted first in the previous paragraph, presumably because

18

UMTA was passed soon after it was published. See SacRT Decision at 9; MST

19

Decision at 8–9. That definition demonstrates the ambiguity of “continuation” in

20

section 13(c)(2): “keeping up or going on” suggests a right would not diminish,

21

whereas “without interruption” and “unbroken” suggests a right will not be ex-

22

tinguished for any period of time.

23

The Supreme Court recently interpreted a similar word, “continued,” to

24

mean “carried on or kept up without cessation,” “extended in space without in-

25

terruption or breach of connection,” or “stretching out in time or space esp.

26

without interruption,” Adoptive Couple v. Baby Girl, ___ U.S. ___, 133 S. Ct. 2552,

27

2560 (2013) (citations, quotation marks, and alterations omitted). The Court sug-

28

gested the verb “continue” meant “[t]o go on with a particular action or in a par-

29

ticular condition; persist,” “[t]o remain in the same state, capacity, or place,” or

30

“go on with an action that is preexisting.” Id. (citations, quotation marks, and

31

alterations omitted). Thus, under 25 U.S.C. § 1912(f),8 a provision of the Indian
5

http://www.merriam-webster.com/dictionary/continuation

6

http://www.oxforddictionaries.com/us/definition/american_english/
continuation; http://www.oxforddictionaries.com/us/definition/
american_english-thesaurus/continuation
7

https://ahdictionary.com/word/search.html?q=continuation

8

That section provides, “No termination of parental rights may be ordered
in such proceeding in the absence of a determination, supported by evidence beyond

15

1

Child Welfare Act of 1978, the words “continued custody” meant that custody

2

had existed both before and after a particular point in time. This discussion sug-

3

gests the plaintiffs’ definition may be just as correct as the DOL’s: although “con-

4

tinued” can mean “to remain in the same state,” in Adoptive Couple, it meant

5

“without cessation,” and as the Court eventually concluded, in the relevant statu-

6

tory context, it meant essentially “existing both before and after.” See 133 S. Ct.

7

at 2560–61.

8

Section 13(c) itself also appears to offer a synonym for “continuation”

9

when it lists “the preservation of rights, privileges, and benefits” and then clari-

10

fies parenthetically that this phrase includes the “continuation of pension rights

11

and benefits.” 48 U.S.C. § 5333(b)(2)(A). But “preserve,” like “continue,” could

12

plausibly mean both to “[m]aintain . . . in its original or existing state,” as in pre-

13

serving records, or to “[m]aintain or keep alive,” as in preserving a memory. See

14

Oxford Online American English Dictionary.9 Again, either definition of

15

“preservation,” like “continuation,” is reasonably supported by the text of sec-

16

tion 13(c).

17

The context of section 13(c)(2) also shows “continuation” could mean

18

both the opposite of “end” and “diminution.” Section 13(c) requires protections

19

for employees affected by federal assistance. It tasks the Secretary of Labor with

20

a review of the relevant “arrangements” to ensure they are “fair and equitable.”

21

59 U.S.C. § 5333(b)(1). Congress required these arrangements to include whatev-

22

er provisions were necessary to guarantee “the preservation of rights, privileges,

23

and benefits . . . under existing collective bargaining agreements”; “the continua-

24

tion of collective bargaining rights”; “the protection of individual employees

25

against a worsening of their positions related to employment”; and “assurances

26

of employment to employees of acquired public transportation systems,” among

27

other things. Id. § 5333(b)(2). In this context, “continuation” could reasonably

28

mean either “staying the same” or “not ceasing.” The court reached this same

29

conclusion in its previous order when it rejected the plaintiffs’ argument that

30

“certification should be withheld only when statutory changes completely pre-

31

clude collective bargaining.” Remand Order, 76 F. Supp. 3d at 1142.
a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.”
9

These definitions and examples are those provided by the American English version of the Oxford Online English Dictionary, available at the time this order
issued at http://www.oxforddictionaries.com/us/definition/american_english/
preserve.

16

This ambiguity would not have arisen had Congress instead required ar-

1
2

rangements necessary to avoid the “diminution” or “termination” of collective

3

bargaining rights. Congress did use the word “worsening” in another provision of

4

section 13(c): “Arrangements under this subsection shall include provisions that

5

may be necessary for— . . . the protection of individual employees against a

6

worsening of their positions related to employment.” 49 U.S.C. § 5333(b)(2)(C).

7

This more specific word choice may suggest Congress had something other than

8

a “worsening” in mind when it referred to “the continuation” of collective bar-

9

gaining rights. That is, if Congress had intended to prevent more than just the

10

termination of collective bargaining, it could have written, “Arrangements under

11

this subsection shall include provisions that may be necessary for— . . . the pro-

12

tection against a worsening of employees’ collective bargaining rights.” And a

13

“worsening” would have encompassed a termination just as well as a diminu-

14

tion.

15

By using the word “continuation” in section 13(c)(2), Congress could

16

have meant to prevent the end of collective bargaining between the employees

17

and employers of mass transportation systems in the United States. Congress

18

could also have meant to prevent state and local governments from chipping

19

away at the collective bargaining rights of their mass transportation employees.

20

In sum, SacRT’s and MST’s interpretation is plausible; so is the DOL’s. The

21

statute is ambiguous.

22

B.

Deference to the DOL’s Interpretations—In General

23

If a statute’s words are ambiguous, the court must decide whether the

24

agency’s interpretation is a permissible one. Chevron, 467 U.S. at 843–44. For this

25

reason, courts must often also decide what leeway or deference to allow an agen-

26

cy’s decisions.

27

In some instances, Congress delegates interpretive authority to an agen-

28

cy. See id. If that is the case, a federal court does not “simply impose its own con-

29

struction of the statute,” but must adopt the agency’s interpretation, which is in

30

fact binding “unless procedurally defective, arbitrary or capricious in substance,

31

or manifestly contrary to the statute.” Mead, 533 U.S. at 227. This approach is

32

known as Chevron deference. See id.; Chevron, 467 U.S. at 842–43. An agency is

33

entitled to permissive judicial review under Chevron only if it appears both that

34

“Congress delegated authority to the agency generally to make rules carrying the

35

force of law” and that the interpretation in question “was promulgated in the ex-

36

ercise of that authority.” Mead, 533 U.S. at 226–27. Applying these rules, the

37

Ninth Circuit considers the binding power of an agency’s decisions on third par-

17

1

ties—their precedential value—to be “the essential factor in determining whether

2

Chevron deference is appropriate.” Marmolejo-Campos v. Holder, 558 F.3d 903, 909

3

(9th Cir. 2009) (en banc) (emphasis in original) (citation and quotation marks

4

omitted).

5

If an agency’s decisions are not allowed the deference defined in Chevron,

6

the agency’s reasoning is often persuasive nonetheless. Mead, 533 U.S. at 227.

7

The Supreme Court has “long recognized that considerable weight should be ac-

8

corded to an executive department’s construction of a statutory scheme it is en-

9

trusted to administer.” Id. (quoting Chevron, 467 U.S. at 844). The deference al-

10

lowed to an agency depends on a number of commonsense considerations: How

11

thorough and careful is the agency’s reasoning? Is the agency’s decision con-

12

sistent with its earlier and later pronouncements? Is its reasoning valid? Does the

13

decision concern a subject matter within the agency’s technical expertise? See id.

14

at 228. These considerations may lead a court to view a decision with anything

15

from great respect to indifference. Id. This less-permissive and widely varying

16

level of deference is usually referred to in shorthand as Skidmore deference, after

17

Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).

18

This court decided in the Remand Order that the DOL’s interpretations

19

in the 2013 letters were not entitled to Chevron deference. Now, as before, in issu-

20

ing the 2015 letters,“[r]ather than conducting an essentially discretionary review

21

of whether any arrangement could be fair and equitable in light of PEPRA or

22

relying on any administrative expertise, DOL relied on case law and federal labor

23

policy, as filtered through a number of NLRA cases, to reject the applications at

24

issue.” Remand Order, 76 F. Supp. 3d at 1137. These circumstances support the

25

conclusion Congress did not mean to delegate interpretive authority to the DOL,

26

which means Chevron does not apply. See also id. (“The [Donovan] court rejected

27

DOL’s certification only after undertaking its own examination and interpreta-

28

tion of Section 13(c) and specifying how DOL should interpret such agreements.

29

Donovan thus supports plaintiffs’ claim that de novo review is appropriate.” (cit-

30

ing 767 F.2d at 940)). Moreover, this is the law of the case.

31

The DOL argues, however, its most recent decisions are nonetheless enti-

32

tled to Chevron deference because circumstances have changed. It argues its 2015

33

decisions were issued under authority granted to the DOL by Congress and have

34

the force of law. DOL Br. at 7. The court disagrees. The DOL indeed acted with-

35

in its authority by applying the mandatory factors of section 13(c), but Congress

36

did not “delegate[] authority to [the DOL] generally to make rules carrying the

37

force of law,” Mead, 533 U.S. at 226–27; see also Guidelines, Section 5333(b),

18

1

Federal Transit Law, 60 Fed. Reg. 62,964-01 (“There is no statutory authority to

2

issue regulations under section 5333(b).”).
DOL’s decisions also are not precedential. The DOL’s argument to this

3
4

end relies on three facts: (1) California recognized the predictive power of the

5

DOL’s decisions here by making exceptions from PEPRA for more employees

6

than those affected by this case; (2) the plaintiffs’ briefing in this case compares

7

the Department’s current decisions and its previous decisions; and (3) the De-

8

partment considered its own previous decisions on remand. DOL Br. at 7–8. If

9

these facts were enough to prove an agency’s decisions are precedential, then al-

10

most any agency decision would be entitled to Chevron deference, because arbi-

11

trarily inconsistent pronouncements are always subject to reversal under

12

§ 706(2)(A). See, e.g., Westar Energy, Inc. v. Fed. Energy Regulatory Comm’n, 473

13

F.3d 1239, 1241 (D.C. Cir. 2007) (“A fundamental norm of administrative pro-

14

cedure requires an agency to treat like cases alike. If the agency makes an excep-

15

tion in one case, then it must either make an exception in a similar case or point

16

to a relevant distinction between the two cases.”); Wilhelmus v. Geren, 796 F.

17

Supp. 2d 157, 162 (D.D.C. 2011) (same). The DOL’s decisions here are better

18

understood as unpublished, case-by-case determinations without significant legal

19

force; they are not precedent. As before, and as necessary, the court applies

20

Skidmore deference to the DOL’s conclusions. See Remand Order, 76 F. Supp. 3d

21

at 1137.

22

C.

Three General Concerns with the DOL’s Decisions

23

As summarized above, when an agency has interpreted an ambiguous

24

statutory term, the court must decide whether the agency’s interpretation is a

25

permissible one. Here, because the deferential rules of Chevron do not apply, the

26

court allows the DOL’s interpretation of “continuation” the weight commensu-

27

rate with the level of care, consistency, formality, expertness, and general persua-

28

siveness of its reasoning, under Skidmore and similar cases. Mead, 533 U.S.

29

at 228; Skidmore, 323 U.S. at 140. Before weighing the DOL’s 2015 decisions in

30

detail, the court notes three larger trends in those decisions that counsel skepti-

31

cism.

32

First, the DOL purposefully ignored directly relevant authority: the Do-

33

novan case. As explained in this court’s Remand Order, Donovan is one of very

34

few judicial interpretations of section 13(c). See Remand Decision, 76 F. Supp.

35

3d at 1139 (citing In re NJ Transit Bus Operations, Inc., 125 N.J. 41, 65 (1991)). Its

36

importance is borne out in the record of this case. See 2013 AR 214 (ATU inter-

37

prets Donovan in its objection to SacRT’s application); 2013 AR 699–702 (SacRT

19

1

argues Donovan does not control the DOL’s decision); 2013 AR 127–30 (DOL’s

2

original decision discussing Donovan); Remand Order, 76 F. Supp. 3d at 1139–43

3

(discussing Donovan and the parties’ interpretation of it). The DOL once de-

4

scribed Donovan as “exhaustive” and “controlling.” 2013 AR 130.

5

A few additional details illustrate the court’s concern. In the Remand

6

Order, after devoting several paragraphs to the Georgia statute at issue in Do-

7

novan and the D.C. Circuit’s reasoning, this court could agree with neither the

8

plaintiffs’ nor the DOL’s reading of UMTA:

9
10
11
12
13

Plaintiffs read too much into Donovan to argue that it means 13(c)
certification should be withheld only when statutory changes completely preclude collective bargaining. But defendants also read too
much into the case when they say it controls the interpretation of
Section 13(c) in this case.

14

Id. at 1142. Here, in contrast to the situation before the Donovan court, PEPRA

15

does not give an employer unilateral control over collective bargaining; it makes

16

larger-scale changes to state pension law. Id. at 1142–43. In the Remand Order,

17

the court found the DOL had not appreciated this difference and remanded the

18

matter. But on remand, rather than considering Donovan and this court’s interpre-

19

tation of it, the only judicial decisions wading into the intersection of general

20

state law and section 13(c), the Secretary’s designee thought it better to avoid

21

Donovan altogether for the time being, even as it purported to preserve its ability

22

to invoke its prior interpretation:

23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39

I continue respectfully to disagree with the district court’s assessment
of my September 4, 2013 determination as arbitrary and capricious,
including my reliance on Donovan. For purposes of any potential further judicial review, I hereby clarify that the Department adheres to
the analysis set forth in my earlier certification decision, and that the
Department preserves its rights to rely on that earlier reasoning and
analysis as an independent basis for denying certification.
For purposes of remand, however, this Analysis is intended to explain why the factors and issues identified by the district court do not
support certification of this grant under Section 13(c). . . .
. . . The court also did not preclude the Department from relying on
either section 13(c)(1) or section 13(c)(2) if the Department again decided against certification. . . .
. . . [I]n light of the district court’s remand decision, I hereby set out
an analysis of sections 13(c)(1) and (2) that does not rely on Donovan
....

SacRT Decision at 7–8; see also MST Decision at 7–8.

20

1

Reasonable readers may certainly disagree about the meaning of section

2

13(c) and what the Donovan court would have done with this case. But if the

3

DOL truly believes that the parties’ dispute may be resolved “as a matter of pure

4

statutory construction” because “[t]he language of the UMTA is unambiguous

5

and leaves no doubt as to Congress’s intent,” DOL Resp. at 3, then its current

6

decision to avoid reliance on Donovan on remand is questionable. “The judici-

7

ary,” which encompasses the D.C. Circuit in its Donovan decision, “is the final

8

authority on issues of statutory construction . . . .” Chevron, 467 U.S. at 843 n.9.

9

An agency may not simply disregard a federal court’s interpretation of an unam-

10

biguous statute. Id.

11

At the same time, as explained above, the phrase “continuation of collec-

12

tive bargaining rights” is unclear. The DOL’s decision to disregard relevant judi-

13

cial authority in charting a new course is therefore not necessarily “arbitrary and

14

capricious” gainsaying. Nor is the DOL’s decision on remand facially incon-

15

sistent with the Remand Order, as this court pointed out in its Enforcement Or-

16

der, as the DOL did not press forward with reflexive reliance on Donovan. But its

17

decision to abandon an authority it once found controlling, without attempting

18

to wrestle with this court’s decision, undercuts its credibility. See, e.g., Good Sa-

19

maritan Hosp. v. Shalala, 508 U.S. 402, 417 (1993) (an agency’s inconsistency de-

20

tracts from the weight its conclusions are due); Skidmore, 323 U.S. at 140 (the

21

persuasiveness of an agency’s determination depends on its evident thorough-

22

ness); Davis v. Mineta, 302 F.3d 1104, 1112 (10th Cir. 2002) (evidence suggestive

23

of prejudgment “diminishes the deference” owed an agency’s decisions).

24

Second, the DOL reached the same conclusions on remand in 2015 as it

25

did originally in 2013. Federal courts have long recognized that an agency may

26

become so committed to a decision that it resists genuine reconsideration on re-

27

mand. Food Mktg. Inst. v. Interstate Commerce Comm’n, 587 F.2d 1285, 1290 (D.C.

28

Cir. 1978); accord, e.g., Chamber of Commerce of U.S. v. S.E.C., 443 F.3d 890, 899

29

(D.C. Cir. 2006); Competitive Enter. Inst. v. Nat’l Hwy. Traffic Safety Admin., 45

30

F.3d 481, 484 (D.C. Cir. 1995). Similarly, the Supreme Court has “viewed criti-

31

cally” an agency’s “post hoc rationalization.” Citizens to Pres. Overton Park, Inc. v.

32

Volpe, 401 U.S. 402, 420 (1971), abrogated on other grounds by Califano v. Sanders,

33

430 U.S. 99 (1977). “The agency’s action on remand must be more than a barren

34

exercise of supplying reasons to support a pre-ordained result.” Food Mktg. Inst.,

35

587 F.2d at 1290. “A reviewing court . . . will accord a somewhat greater degree

36

of scrutiny to an order that arrives at substantially the same conclusion as an or-

37

der previously remanded by the same court.” Greyhound Corp. v. Interstate Com-

38

merce Comm’n, 668 F.2d 1354, 1358 (D.C. Cir. 1981).

21

1

Third, the DOL’s 2015 decisions focus primarily on interpretations of

2

statutes and federal judicial decisions rather than the technical specifics of this

3

case. “[C]ourts, rather than agencies, have expertise in interpreting case law.”

4

Wachovia Bank, N.A. v. Burke, 414 F.3d 305, 320 (2d Cir. 2005) (citing New York

5

New York, LLC v. Nat’l Labor Relations Bd., 313 F.3d 585, 590 (D.C. Cir. 2002),

6

and University of Great Falls v. Nat’l Labor Relations Bd., 278 F.3d 1335, 1341 (D.C.

7

Cir. 2002)). In the 2015 decisions, the DOL has not drawn significantly on its

8

subject-matter expertise, previous decisions, or thorough factual research. For

9

example, its decisions do not grapple with the differing challenges public and pri-

10

vate employers face, an area it presumably would have expertise to evaluate, and

11

an area the court asked it to consider on remand. It did not explain how its expe-

12

rience reviewing protective arrangements shows how PEPRA shifts the balance

13

of power between union negotiators and transit agencies. It did not illustrate the

14

impact of PEPRA’s specific requirements. It did discuss the differences between

15

defined benefit and defined contribution plans, but only generally, rather than

16

investigating the details of the plans in this case. Given the marked shift in the

17

pension landscape since UMTA was passed, the DOL must be in a position to

18

clarify the stakes more consistently with its agency role. Cf. LaRue v. DeWolff,

19

Boberg & Associates, Inc., 552 U.S. 248, 255 (2008) (noting “[d]efined contribution

20

plans dominate the retirement plan scene today,” whereas in the 1970s and

21

1980s, “the [defined benefit] plan was the norm” (citation omitted; alterations in

22

original)). In sum, the DOL attempted to develop rather than apply the law.

23

Nevertheless, some aspects of the DOL’s 2015 decisions do show thor-

24

oughness and attention to detail. The DOL’s conclusions are supported exten-

25

sively by citations to legal authority and UMTA’s legislative history, and the

26

DOL relied on nontrivial, lengthy, and detailed analyses. See, e.g., SacRT Deci-

27

sion at 13–22; MST Decision at 13–21. Although the DOL found that the con-

28

siderations this court identified in the Remand Order did not lead it to a different

29

conclusion, it explained why.

30
31

The court therefore reviews the DOL’s reasoning with caution, but without prejudging the outcome.

32

D.

Whether the DOL’s Interpretation of Section 13(c)(2) Stands

33

As summarized above, section 13(c)(2) is ambiguous, and neither the

34

plaintiffs’ nor the DOL’s motion can be granted on the basis of statutory con-

35

struction alone. The court must therefore scrutinize the DOL’s more detailed

36

reasoning and decide whether its application of section 13(c)(2) is sufficiently

37

persuasive, despite the three general concerns identified above, such that its mo-

22

1

tion may be granted. The DOL’s findings are organized into four parts: (1) a dis-

2

cussion of legislative history; (2) a review of federal appellate decisions published

3

near the time of section 13(c)’s enactment; (3) a discussion of collective bargain-

4

ing in the public sector; and (4) an analysis of federal judicial decisions discussing

5

how state and federal labor law interact under the National Labor Relations Act

6

(NLRA). As explained in the next four subsections, the DOL’s motion cannot be

7

granted on the basis of these conclusions.

8

1.

Legislative History

9

Ambiguities in statutes may often be resolved by referring to their legisla-

10

tive histories. See N. Cal. River Watch v. Wilcox, 633 F.3d 766, 773 (9th Cir. 2011).

11

As the Donovan court and the DOL both found, when section 13(c) was written

12

in the early 1960s, at least some legislators understood “[t]he question of policy”

13

to be, in the words of Senator Wayne Morse, section 13(c)’s sponsor, whether the

14

federal government should “make available to cities, States and local governmen-

15

tal units Federal money to be used to strengthen their mass transit system when

16

the use of that money would result in lessening the collective bargaining rights of

17

existing unions?” Donovan, 767 F.2d at 946–47 (quoting 109 Cong. Rec. 5671–72

18

(1963)) (alteration omitted). The Donovan court believed Senator Morse “could

19

not have been clearer about the purpose of” section 13(c). Id. Senator Morse’s

20

words indeed suggest concern that workers’ bargaining rights might diminish.

21

Section 13(c)’s historical context could also support this conclusion. The

22

UMTA was enacted “to foster the development and revitalization of public

23

transportation systems.” 49 U.S.C. § 5301(a). Its purposes included promoting

24

“the development of the public transportation workforce.” Id. § 5301(b)(8). Con-

25

gress wanted to support mass transportation with federal funds, but worried that

26

public ownership of mass transportation agencies would threaten rights private

27

employees had won. Jackson Transit, 457 U.S. at 17, 23–24. “To prevent federal

28

funds from being used to destroy the collective-bargaining rights of organized

29

workers, Congress included § 13(c) in the Act.” Id. at 17. “Congress intended

30

that § 13(c) would be an important tool to protect the collective-bargaining rights

31

of transit workers, by ensuring that state law preserved their rights before federal

32

aid could be used to convert private companies into public entities.” Id. at 27–28.

33

Because a right may discontinue both by degree and abruptly, this context sug-

34

gests Congress expected collective bargaining rights would neither diminish

35

gradually nor vanish immediately.

36
37

On the other hand, the legislative history also includes hints that Congress was not concerned with small changes over time, but with a sudden end to

23

1

collective bargaining in the mass transportation industry. In April 1963, the Sen-

2

ate considered a draft of section 13(c), which provided that the Secretary of La-

3

bor would ensure workers were protected by arrangements that included, “with-

4

out being limited to, such provisions as may be necessary for . . . (2) the encour-

5

agement of the continuation of collective bargaining rights.” 2016 AR 618 (re-

6

producing 109 Cong. Rec. 5415 (1963)). A Senator asked whether this language

7

“would mean that the city or the public body taking over [a] shaky transit system

8

would have to continue the collective bargaining agreement.” 2016 AR 619 (re-

9

producing 109 Cong. Rec. 5,416). The answer was “Yes.” Id. The same Senator

10

then explained his understanding that the Labor Secretary had recommended

11

different language, “prevention of the curtailment of collective bargaining

12

rights,” which had not been adopted. Id. “Obviously the committee did not go

13

that far on that subject,” he said. Id. The answering Senator agreed: the Senate

14

committee had “wisely” declined the Labor Secretary’s suggestion, although he

15

noted the language “without being limited to” may serve a similar purpose. Id.

16

Nevertheless, the language “without being limited to” also escaped the final ver-

17

sion of section 13(c).

18

This exchange counterbalances Senator Morse’s statement, excerpted

19

above. It suggests that at least some senators understood the Secretary of Labor

20

would not be permitted to withhold certification of an arrangement simply be-

21

cause it allowed the “curtailment” of collective bargaining rights. The word “cur-

22

tailment” communicates an intent to avoid diminutions more obviously than the

23

phrase “necessary for . . . the continuation.” See, e.g., Oxford American Diction-

24

ary Online (defining “curtailment” as “[t]he action or fact of reducing or restrict-

25

ing something”).10 Had Congress’s intent been to prevent even modest changes,

26

as the DOL contends, Senators would not have summarily rejected the word

27

“curtailment.”

28

SacRT and MST also cite the hearing testimony of a labor representative

29

regarding UMTA’s provisions. See S.6 and S. 917, Bills to Authorize the Housing

30

and Home Finance Agency to Provide Additional Assistance for the Develop-

31

ment of Mass Transportation Systems, and for Other Purposes: Hearing Before

32

the Subcomm. on Banking and the Currency, 88th Cong. 319 (Mar. 8, 1963)

33

(Testimony of Andrew J. Biemiller, Director, Dep’t of Legislation, AFL-CIO),

34

ECF No. 21-2. This representative explained to Senators his worry that “not only

35

the right to strike but the right to bargain [could] go down the drain” if mass
10

At the time this order issued, the definition above was accessible at
http://www.oxforddictionaries.com/us/definition/american_english/curtailment.

24

1

transportation were managed publicly. See id. He agreed with a Senator who

2

asked whether transportation workers worried that “all that been gained from

3

collective bargaining and, indeed, collective bargaining will be lost.” Id. at 320.

4

“[I]t is also conceivable that pension rights, and so on, that have been won, could

5

be wiped out,” he explained. Id. The labor representative’s words—“going down

6

the drain,” “lost,” and “wiped out”—communicate a fear not of gradual change,

7

but of a complete end. See also Pls.’ Br. at 13 (citing additional, similar elements

8

of the legislative history). This concern fits the historical context: a general shift

9

away from the private, unionized operation of mass transportation to public,

10

non-union operation. Again this suggests Congress was concerned primarily with

11

the complete termination of collective bargaining, not its curtailment or diminu-

12

tion.

13

A review of this legislative history shows the DOL on remand relied on

14

legislative history and historical context only to the extent that the history and

15

context supported its conclusions. It did not address the elements of UMTA’s

16

legislative history and context that weighed in favor of SacRT’s and MST’s inter-

17

pretations. It did not explain why it decided not to rely on that information or

18

why it found SacRT’s and MST’s citations unpersuasive. The absence of this dis-

19

cussion undermines the persuasiveness of the DOL’s decisions and illustrates a

20

long-recognized difficulty in any analysis of legislative history. When a court or

21

agency relies on legislative history, especially the statements of individual Sena-

22

tors and witnesses at hearings, it must somehow forge one alloyed opinion from

23

many minds. The interpreter of legislative history must “act according to the im-

24

pression [it] think[s] this history should have made” on the many legislators.

25

United States v. Pub. Utils. Comm’n of Cal., 345 U.S. 295, 319 (1953) (Jackson, J.,

26

concurring). Needless to say, this can be a “weird endeavor.” Id. It also risks un-

27

due reliance on the statement of a single legislator whose understanding does not

28

fit that of the whole Congress. See, e.g., Bath Iron Works Corp. v. Dir., Office of

29

Workers’ Comp. Programs, U.S. Dep’t of Labor, 506 U.S. 153, 166 (1993); Chrysler

30

Corp. v. Brown, 441 U.S. 281, 311 (1979).

31

In short, the DOL’s analysis of the legislative history is not persuasive. At

32

the same time, neither is the plaintiffs’. If UMTA’s legislative history shows any-

33

thing, it is that Congress did not craft section 13(c)(2) with a future law like

34

PEPRA in mind, but rather out of concern attached to the general shift away

35

from private toward public operation of mass transportation services. Moreover,

36

the parties’ citations suggest no uniform understanding of the phrase “continua-

37

tion of collective bargaining rights” among the legislators who wrote it. The

38

word “continuation” may very well have been a classic legislative compromise.

25

1

In this situation, the best reading of section 13(c)(2) is an unsatisfying

2

generalization: “the continuation of collective bargaining rights” means that col-

3

lective bargaining rights will not cease, and they will not diminish to the point

4

that the bargaining relationship substantially clashes with federal policy on col-

5

lective bargaining. This interpretation marries the notion that “continuation”

6

may reasonably mean both “not end” and “not diminish,” as highlighted in the

7

sections above, with the context and history of UMTA’s passage. This history

8

and context shows Congress was concerned that the hard-fought bargaining

9

rights of private transit workers would no longer be protected by federal law. As

10

summarized above, it was motivated primarily by larger-scale restrictions on col-

11

lective bargaining rights, changes proportionate to the national collapse of the

12

private mass transit industry, changes that would be easy to see when overlaid

13

with the fundamentals of federal labor policy. The DOL’s motion cannot be

14

granted on the basis of its interpretation of section 13(c)’s legislative history.
2.

15
16

Contemporary Decisions Interpreting the NLRA

The DOL confirmed its impression of UMTA’s legislative history by re-

17

viewing several mid-twentieth-century federal appellate decisions interpreting the

18

NLRA. It found that as commonly understood in this context, an employer’s

19

“obligation to bargain over pensions was not restricted to changes that complete-

20

ly eliminated or replaced an existing pension or other employee benefit plan.”

21

SacRT Decision at 11–12; MST Decision at 11–12. Its analysis on remand does

22

not support this conclusion, and its motion cannot be granted on the basis of this

23

reasoning.

24

The parties agree, as does this court, that “[s]ection 13(c) evinces no con-

25

gressional intent to upset the decision in the [NLRA] to permit state law to gov-

26

ern the relationships between local governmental entities and the unions repre-

27

senting their employees.” Jackson Transit, 457 U.S. at 23–24. All agree as well

28

that Congress imposed no federal definition of “collective bargaining rights” on

29

the states when it passed section 13(c). Donovan, 767 F.2d at 949. Nothing sug-

30

gests Congress intended to invent a new definition of “collective bargaining” for

31

the sole purpose of the UMTA. “Instead, Congress used the phrase generically,

32

incorporating within the statute the commonly understood meaning of ‘collective

33

bargaining.’” Id. Therefore, the Donovan court concluded, Congress intended the

34

following definition, as far as it goes: “good faith negotiations, to a point of im-

35

passe, if necessary, over wages, hours and other terms and conditions of em-

36

ployment.” Id. (emphasis omitted). The parties do not suggest this view is incor-

37

rect, and this court sees no reason to disagree with it.

26

1

The Donovan court’s definition of “collective bargaining” resembles the

2

definition in section 8(d) of the NLRA, 29 U.S.C. § 158(d): “[T]o bargain collec-

3

tively is the performance of the mutual obligation of the employer and the repre-

4

sentative of the employees to meet at reasonable times and confer in good faith

5

with respect to wages, hours, and other terms and conditions of employ-

6

ment . . . .” It also resembles the definition embodied by California law. See, e.g.,

7

Cal. Gov’t Code § 3512 (“It is the purpose of [the Ralph C. Dills Act, Govern-

8

ment Code sections 3512–3523.5,] to promote full communication between the

9

state and its employees by providing a reasonable method of resolving disputes

10

regarding wages, hours, and other terms and conditions of employment between

11

the state and public employee organizations.”). In light of the consistency of

12

these definitions, the DOL’s decision to consult federal decisions interpreting

13

section 8(d) of the NLRA was not unreasonable. Its interpretations of these sec-

14

tions, however, is. Some additional background information is necessary to ex-

15

plain why.

16

Federal courts interpreting the NLRA have understood employee pen-

17

sions to be a mandatory subject of collective bargaining under that statute. Allied

18

Chem. & Alkali Workers of Am., Local Union No. 1 v. Pittsburgh Plate Glass Co., Chem.

19

Div., 404 U.S. 157, 159 (1971); Pac. Coast Ass’n of Pulp & Paper Mfrs. v. Nat’l Labor

20

Relations Bd., 304 F.2d 760, 761 (9th Cir. 1962). Many federal decisions rely on

21

the Seventh Circuit’s thorough discussion in Inland Steel Company v. National La-

22

bor Relations Board, where the court reasoned that pension benefits are “condi-

23

tions of employment.” See, e.g., Allied Chem., 404 U.S. at 159 n.1 (citing, inter alia,

24

Inland Steel Co. v. Nat’l Labor Relations Bd., 170 F.2d 247, 255 (7th Cir. 1948), cert.

25

denied on this issue, 336 U.S. 960 (1949), aff’d on other grounds sub nom. Am.

26

Commc’ns Ass’n, C.I.O., v. Douds, 339 U.S. 382 (1950)); Pac. Coast, 304 F.2d at 761

27

(same). On a similar note, compulsory retirement ages are a mandatory subject

28

of collective bargaining under the NLRA. See, e.g., Fibreboard Paper Prods. Corp. v.

29

Nat’l Labor Relations Bd., 379 U.S. 203, 222 & n.10 (1964) (citing Inland Steel, 170

30

F.2d 247).

31

This much is uncontroversial. So is the general rule that under the

32

NLRA, an employer must not act unilaterally in areas of mandatory bargaining.

33

Even minimal unilateral changes to terms and conditions of employment may

34

violate the NLRA. See, e.g., Leeds & Northrup Co. v. Nat’l Labor Relations Bd., 391

35

F.2d 874, 876 (3d Cir. 1968) (“[t]he only change made was to reduce the em-

36

ployees’ share of company profits in excess of a level which it had attained only

37

twice in its history[,]” but this change nonetheless violated the NLRA).

27

1

Citing these rules, the DOL’s decisions on remand relied on the follow-

2

ing premises: (1) The definition of “collective bargaining” in section 13(c) is a

3

term of art, and Congress meant to use the established meaning when it enacted

4

section 13(c); (2) one way to learn the established meaning of “collective bargain-

5

ing” at the time UMTA was enacted is to consider the meaning of that term un-

6

der the NLRA; (3) under the NLRA, employers must bargain collectively about

7

pensions and retirement ages; (4) if an employer makes unilateral changes to

8

pension plans and retirement ages, it violates the NLRA; and (5) even minimal

9

unilateral changes violate the NLRA. See SacRT Decision at 11–13; MST Deci-

10
11

sion at 11–13.
From these premises the DOL concluded (a) Congress intended, by using

12

the phrase “collective bargaining,” to require good faith negotiation over every

13

change a state makes to pension plans or retirement provisions, however mini-

14

mal; (b) if a state law makes minimal, unilateral changes to public pension and

15

retirement provisions, there has been no “continuation of collective bargaining

16

rights” under section 13(c)(2); and (c) because PEPRA made unilateral changes

17

to the law governing public pensions and retirement ages, SacRT’s and MSTs

18

grants cannot be certified.

19

These conclusions do not necessarily follow from the DOL’s premises.

20

First, section 13(c)(2) “substantially preserv[es]”—not completely preserves—

21

“collective bargaining rights that had been established by federal labor policy,”

22

Donovan, 767 F.2d at 948. Congress understood “federal labor policy would dic-

23

tate the substantive meaning”—not the total meaning—“of collective bargaining

24

for purposes of section 13(c).” Id. at 950. “Congress did not intend to subject lo-

25

cal government employers to the precise strictures of the NLRA.” Id. at 949. Nor

26

did it “impose[] upon the states the precise definition of ‘collective bargaining’

27

established by the NLRA.” Id. The federal elements of “collective bargaining”

28

are necessary to prevent section 13(c)(2) from becoming a “meaningless tautolo-

29

gy”; that is, “if state law defines the ‘collective bargaining rights’ that must be

30

continued under the federal statute, then a public transit authority’s labor rela-

31

tions always will be in compliance with section 13(c), because by definition a

32

state transit authority will be in conformity with state law.” Id. at 948. But

33

wholesale adoption of federal labor law also is not necessary to avoid this non-

34

sensical result.

35

The DOL’s decisions cite this caveat, see SacRT Decision at 13; MST

36

Decision at 13, but do not persuasively consider its effect. The DOL’s reasoning

37

reads the totality of mid-twentieth-century federal decisional law into the words

28

1

“collective bargaining rights.” This was not Congress’s intent in passing UMTA.

2

If Congress had intended for the Labor Secretary to approve federal funding only

3

when a state’s collective bargaining laws would not have violated the NLRA if

4

adopted by a private employer, Congress could have cited section 8(d) of that

5

Act. Instead, Congress referred only generally to “collective bargaining rights.”

6

Similarly, as the plaintiffs point out, some states do not require NLRA-

7

level collective bargaining between transit employees and public mass transit

8

agencies, yet the DOL has not denied certification under section 13(c) to those

9

states. See Pls.’ Br. at 14 (citing Mo. Ann. Stat. § 105.520; Kan. Stat. Ann. § 75-

10

4321).
Second, the DOL did not explain why the decisions it cited would apply

11
12

just as well in the public-employment context. The NLRA does not apply to state

13

and local employers. See Jackson Transit, 457 U.S. at 23 (citing 29 U.S.C.

14

§ 152(2)). A similar concern motivated this court’s previous order, and thus

15

flagged the issue for the DOL’s consideration. See Remand Order, 76 F. Supp. 3d

16

at 1143 (“[T]here is nothing in federal labor policy which expressly forecloses all

17

state regulatory power with respect to those issues, such as pension plans, that

18

may be the subject of collective bargaining.” (citation and quotation marks omit-

19

ted)).

20

Third, this court previously concluded that California did not give local

21

agencies, including SacRT and MST, unilateral control over pensions. Id.

22

PEPRA does not allow “one party control over collective bargaining but rather

23

made across-the-board changes in public employee pension law.” Id. That is the

24

law of this case, as discussed above. The DOL’s decision on remand impliedly

25

assumes this conclusion was incorrect.11

26

For these reasons the DOL’s post-remand discussion of NLRA cases con-

27

temporary to UMTA’s passage is unpersuasive. As discussed above, those cases

28

can reasonably be interpreted to suggest Congress understood the words “collec-

29

tive bargaining rights” to encompass bargaining over pensions and retirement

30

ages. See, e.g., Allied Chem., 404 U.S. at 159 & n.1. These cases are also strong

31

evidence that if a state forbade its transit agencies from bargaining over “wages,
11

The court did not consider this contradiction in its enforcement order. See
Enforcement Order at *4 (“The DOL considered the text of UMTA section 13(c) and
that statute’s legislative history, then concluded the plaintiffs’ application of PEPRA
did not preserve employees’ rights or provide for the continuation of collective bargaining. This analysis was not inconsistent with the court’s order as it pertained to
Donovan.” (citations omitted)). Because the DOL’s current motion is largely denied,
however, the court declines to reconsider its conclusions in the Enforcement Order.

29

1

hours [or] other terms and conditions of employment,” as in Donovan, 767 F.2d

2

at 943, Congress would have intended the Secretary to deny certification. But

3

these decisions do not show that any unilateral action by a state, however mod-

4

est, precludes certification under section 13(c)(2). They do not fit this case be-

5

cause PEPRA does not grant SacRT and MST unilateral authority over pension

6

rights. The DOL’s motion cannot be granted on this basis.

7
8
9

3.

Collective Bargaining in the Public Sector

This court’s previous order also remanded the matter for the DOL to
consider the realities of bargaining in the public sector. On remand, the DOL

10

acknowledged (1) that in some cases, “modifications to state pension plans must

11

be ratified by the state legislature,” SacRT Decision at 17; MST Decision at 17;

12

and (2) that generally, “in the public sector, terms and conditions of employment

13

are public decisions shaped by political processes and realities outside the direct

14

control of a particular public sector employer and must operate within legislative-

15

ly imposed budget constraints and be consistent with the legislature’s policy di-

16

rection.” Id. It did not explain further, except to say both public and private em-

17

ployers face budgetary shortfalls and must negotiate around them. See SacRT

18

Decision at 17–18; MST Decision at 17–18.

19

The DOL considered the differences between private and public employ-

20

ers only superficially. SacRT and MST have not claimed they were frustrated by

21

an inability to obtain ratification from the California legislature. Nor was that the

22

purpose of this court’s previous citation of Robinson v. State of New Jersey, supra,

23

741 F.2d at 607–08. See Remand Order, 76 F. Supp. 3d at 1143–44. In Robinson,

24

the Third Circuit referred broadly to “approval by other public authorities” and

25

the difficulty unions face advancing “the collective interests of their members in a

26

number of arenas.” 741 F.2d at 607. The Robinson court quoted a paragraph from

27

a law review article explaining that it “may not be legally possible or politically

28

sensible” for a public employer to “send someone to the bargaining table with

29

authority to make a binding agreement.” Id. at 608 (quoting Summers, Public Sec-

30

tor Bargaining: Problems of Governmental Decisionmaking, 44 U. Cin. L. Rev. 669,

31

670–71 (1975)). Public employers must consider taxes, legislative policies, consti-

32

tutional requirements, civil service principles, municipal codes, and other con-

33

cerns in addition to the ordinary concerns of private employment, like budgets or

34

competitors’ practices. See id.

35

The court recognizes the Remand Order could likely have spelled out

36

these concerns with greater precision. See 76 F. Supp. 3d at 1143–44 (referring to

37

legislative ratification, among other difficulties in public bargaining). For this

30

1

reason the court does not reconsider its previous conclusion that the DOL’s deci-

2

sions on remand were consistent with the Remand Order. See Enforcement Order

3

at *5. But the DOL’s perfunctory discussion in the 2015 letters does not exhibit

4

the care or insight one might expect from an agency with significant subject-

5

matter expertise. The DOL says little if anything of the many rocks and hard

6

places between which SacRT and MST must navigate: they must bargain with

7

the ATU, comply with California law, and preserve and continue the rights of

8

their employees under UMTA; they face a statutory and regulatory framework

9

and a local legal environment foreign to private employers; local and regional

10

constituencies vie for recognition over the prerogatives of state law; both public

11

accountability and market forces hang over their heads; and ultimately it is the

12

local legislative body that decides whether to approve a collective bargaining

13

agreement. See Pls.’ Br. at 28–30. The DOL’s motion cannot be granted on this

14

basis; rather, its reasoning on remand supports the plaintiffs’ argument that the

15

DOL’s conclusions were foreordained.

16
17

4.

State-Law Backdrops

This court’s previous order noted that “[b]oth employers and employees

18

come to the bargaining table with rights under state law that form a ‘backdrop’

19

for their negotiations,” Remand Order, 76 F. Supp. 3d at 1143 (quoting Fort Hali-

20

fax, 482 U.S. at 21). On remand, the DOL considered whether PEPRA was only

21

a part of this backdrop and found it was not. SacRT Decision at 13–17; MST

22

Decision at 13–16. The DOL summarized its conclusion: “PEPRA is not a law

23

setting background minimum labor standards that is permissible under federal

24

labor policy. Instead, it more closely resembles the laws that are inconsistent with

25

federal labor policy because they intrude on collective bargaining.” SacRT Deci-

26

sion at 14; MST Decision at 14. This summary, if read literally, implies the DOL

27

also concluded that only state laws setting minimum labor standards are permis-

28

sible under federal labor policy.

29

As an initial matter, the plaintiffs’ briefing improperly dismisses the

30

DOL’s reasoning as an attempt to attribute preemptive effect to section 13(c).

31

The DOL did not deny certification under a misunderstanding that PEPRA was

32

preempted by federal law. Rather, it considered the effect of the Supreme Court’s

33

decisions in Fort Halifax Packing Co. v. Coyne, 482 U.S. 1 (1987), Malone v. White

34

Motor Corp., 435 U.S. 497 (1978), and Metropolitan Life Insurance Company v. Mas-

35

sachusetts, 471 U.S. 724 (1985), along with several other cases involving potential

36

federal-state conflicts, as this court’s previous order advised. See Remand Order,

31

1

76 F. Supp. 3d at 1143. The court therefore does not address the plaintiffs’

2

preemption-related arguments.

3

The question posed in this court’s previous order was whether PEPRA is

4

part of the larger California legal system that would underlie every collective bar-

5

gaining effort, as was true of the pension legislation in Malone, the severance-pay

6

law in Fort Halifax, the insurance statute in Metropolitan Life, or other laws sum-

7

marized in Machinists v. Wisconsin Employment Relations Commission, 427 U.S. 132,

8

136–37 & nn.2–3 (1976). As the Supreme Court has explained, “federal rules de-

9

signed to restore the equality of bargaining power” are compatible with state laws

10

that “impose[] minimal substantive requirements on contract terms negotiated

11

between parties to labor agreements, at least so long as the purpose of the state

12

legislation is not incompatible with [the] general goals” of federal labor policy

13

under the NLRA. Metro. Life Ins., 471 U.S. at 754–55. In theory, if a private ana-

14

log to PEPRA would be preempted by the NLRA, then the DOL’s decision not

15

to certify the plaintiffs’ grants could be upheld. But this is not the case, as ex-

16

plained below.

17
18
19
20
21
22
23
24
25
26
27

a.

Federal Labor Policy Defined

The court begins with the Supreme Court’s definition of federal labor policy in the context of the NLRA:
[F]ederal labor policy . . . is the promotion of collective bargaining;
to encourage the employer and the representative of the employees
to establish, through collective negotiation, their own charter for the
ordering of industrial relations, and thereby to minimize industrial
strife. . . . Congress was not concerned with the substantive terms
upon which the parties agreed. The purposes of [federal labor laws]
are served by bringing the parties together and establishing conditions under which they are to work out their agreement themselves.

28

Teamsters v. Oliver, 358 U.S. 283, 295 (1959). This definition and the other deci-

29

sions cited below suggest several questions to help decide whether a state law

30

substantially clashes with federal labor policy.

31

b.

Identification of Clashes Created by State Law

32

(i) Does the state law concern state interests “deeply rooted in local feel-

33

ing and responsibility,” and are those interests “a merely peripheral concern” of

34

federal policy? Machinists, 427 U.S. at 136–37. The Machinists Court explained,

35

“the federal law governing labor relations does not withdraw from the States

36

power to regulate where the activity regulated is a merely peripheral concern of

37

[federal labor policy].” Id. at 137 (citation, quotation marks, and alterations omit-

32

1

ted). The policing of violence is a matter for the states, for example. Id. at 136.

2

But states may not subvert federal policy with laws that are facially indifferent to

3

that policy. For example, in Oliver, the Supreme Court prevented a state from

4

enforcing an otherwise neutral bar on price fixing because in practical effect, the

5

law’s enforcement destroyed a contract provision won by hard-fought collective

6

bargaining. See 358 U.S. at 293–97.

7

(ii) Is the state law generally applicable? Broad statutes of general ap-

8

plicability are more likely to survive preemption than narrow statutes that apply

9

only to a state’s own employees or specifically to collective bargaining. Compare,

10

e.g., Metro. Ins. Co., 471 U.S. at 755 (“Minimum state labor standards affect union

11

and nonunion employees equally . . . .”), with, e.g., Hull v. Dutton, 935 F.2d 1194,

12

1198 (11th Cir. 1991) (“[The Alabama statute in question] applies only to its own

13

employees and not to its citizens generally. The statute is an expression of the

14

state’s power as an employer to regulate relations with its own employees, rather

15

than the state’s authority to regulate in the interest of the health, welfare, and

16

mores of its citizens.”).12 Generally applicable statutes are often consistent with

17

federal policy because they do not primarily regulate the relationship between

18

employees, the union, and the employer. N.Y. Tel. Co. v. N.Y. State Dep’t of Labor,

19

440 U.S. 519, 533 (1978) (plurality opinion). But even generally applicable laws

20

may clash with federal policy and so be preempted. Id. (citing Farmer v. United

21

Bhd. of Carpenters and Joiners of Am., Local 25, 430 U.S. 290, 300 (1977)). The

22

price-fixing law at issue in Oliver is again an example. See, e.g., 358 U.S. at 297

23

(“Clearly it is immaterial that the conflict is between federal labor law and the

24

application of what the State characterizes as an antitrust law.”).

25

(iii) Does the law protect workers’ interests, for example, by establishing

26

minimum labor standards? Laws that protect workers’ rights and interests are

27

more likely to comport with federal labor policy. In Metropolitan Life, the Su-

28

preme Court found a Massachusetts law was not preempted because that law

29

pursued a healthcare goal unrelated to the purposes of the NLRA. See 471 U.S.

30

at 758. The Court wrote, “Congress developed the framework for self-

31

organization and collective bargaining of the NLRA within the larger body of

32

state law promoting public health and safety.” Id. at 756; see also id. (“It would

33

turn [federal] policy . . . on its head to . . . penalize[] workers who have chosen to

12

The plaintiffs argue unpersuasively that Hull is not relevant here. See Pls.’
Br. at 19–20 & n. 29. The Hull court interpreted the Railway Labor Act (RLA). The
RLA, like the NLRA, outlines the dimensions of federal labor policy and is relevant.

33

1

join a union by preventing them from benefiting from state labor regulations im-

2

posing minimal standards on nonunion employers.”).

3

Similarly, in Malone, the Supreme Court considered a Minnesota law

4

providing that when an employer closes its business, “all employees with 10 or

5

more years of service would receive whatever pension benefits had accrued to

6

them, regardless of whether their rights to those benefits had vested within the

7

terms of the [retirement] Plan.” 435 U.S. at 501–02. A plurality of four justices13

8

concluded “there is nothing in the NLRA . . . which expressly forecloses all state

9

regulatory power with respect to those issues, such as pension plans, that may be

10

the subject of collective bargaining.” Id. at 504–05.14 And in Fort Halifax, the Su-

11

preme Court upheld a Maine law that required any employer that closed a plant

12

with one hundred or more employees to provide each worker a specific severance

13

payment. 482 U.S. at 5.

14

At the same time, state laws are not necessarily inconsistent with federal

15

labor policy when they cut against employees’ best interests. As explained by the

16

Eleventh Circuit, a state law may be inconsistent with federal labor policy “de-

17

spite the irony” that the inconsistent law benefits the employees rather than the

18

employer. Hull, 935 F.2d at 1197. Congress determined that “the collective bar-

19

gaining process is best promoted if negotiated agreements are shielded from any

20

unilateral changes by [an employer]. Thus, as the bitter so often goes with the

21

sweet, this prohibition must readily be enforced . . . .” Id.; accord, e.g., Leeds, 391

22

F.2d at 877 (“The [NLRA] not only protects the employees from the direct eco-

23

nomic effect of the employer’s unilateral action, but also forbids the bypassing of

24

the collective bargaining agent, for this would undermine the union’s authority

25

by disregarding its status as the representative of the employees.”); see also Oliver,

26

358 U.S. at 295 (federal labor policy encourages collective bargaining and is not

27

concerned with the substantive terms of the parties’ agreements). In other words,
13

Two justices did not participate, and three dissented.

14

After reaching this preliminary conclusion, the Court considered in detail
the legislative history of the Welfare and Pension Plans Disclosure Act (WPPDA)
and concluded that Congress could not have intended to preempt the Minnesota
statute by passing the NLRA. See id. at 505–15. The WPPDA has since been replaced by the Employee Retirement Income Security Act of 1974 (ERISA). See Alessi
v. Raybestos-Manhattan, Inc., 451 U.S. 504, 523 (1981). Unlike ERISA, which
preempts state regulation, the WPPDA anticipated state action. See id. Nevertheless,
government plans are exempt from ERISA, Standard Oil Co. of Cal. v. Agsalud, 633
F.2d 760, 764 (9th Cir. 1980), aff’d, 454 U.S. 801 (1981) (Mem.), so its passage would
seem to have no effect on the Supreme Court’s decision in Malone, to the extent that
decision applies to a state employer’s plan.

34

1

although it may be true that state laws protecting workers’ interests are more like-

2

ly to be consistent with federal policy, it does not follow that laws serving anoth-

3

er purpose are more probably inconsistent with federal policy, as long as collec-

4

tive bargaining rights are preserved.

5

(iv) Does the state law essentially dictate the substantive result of collec-

6

tive bargaining? A state law is often preempted if it does. See Chamber of Commerce

7

v. Bragdon, 64 F.3d 497, 501 (9th Cir. 1995) (citing Barnes v. Stone Container Corp.,

8

942 F.2d 689, 693 (9th Cir. 1991), and Bechtel Constr. v. United Bhd. of Carpenters,

9

812 F.2d 1220, 1226 (9th Cir. 1987)). In other words, even unintentional or coin-

10

cidental state interference with collective bargaining is preempted when the state

11

law “impos[es] a contract term on the parties and thus alter[s] incentives to nego-

12

tiate.” Barnes, 942 F.2d at 693.

13

(v) Does the law otherwise clash with the federal goal of encouraging

14

“the employer and the representative of the employees to establish, through col-

15

lective negotiation, their own charter for the ordering of industrial relations”?

16

Oliver, 358 U.S. at 295. Federal labor policy does not condone a state’s “med-

17

dling at the heart of the employer-employee relationship.” Barnes, 942 F.2d at

18

693. Nevertheless, a state law is not necessarily contrary to federal labor policy

19

even if it entirely removes an issue from the bargaining table. If this were true,

20

nearly every state law tangential to employment would be preempted, from min-

21

imum wage laws (no bargaining over lower hourly wages, e.g., in return for pay

22

in kind) to health and safety standards (no bargaining around regulations burden-

23

some to both employees and employers, but beneficial to the public).

24

In summary, federal decisions considering the preemption of state laws

25

may help trace the boundaries of federal labor policy, and federal labor policy is

26

the standard against which arrangements are measured under section 13(c)(2). A

27

variety of state laws may be consistent with federal labor policy and provide a

28

backdrop to collective bargaining under section 13(c)(2), while at the same time

29

some laws are not part of this backdrop.

30
31

c.

Analysis

The questions identified above help divide consistent from the incon-

32

sistent state laws. When those questions are asked of PEPRA, this court finds no

33

substantial inconsistency with federal labor policy:

34

(i) Deeply rooted state interests: On the one hand, PEPRA does not con-

35

cern the most traditional of California’s police powers, such as the general

36

health, safety, and wellbeing of California citizens. It is not analogous to the “pe-

35

1

ripheral” state laws identified by the Supreme Court. See, e.g., Machinists, 427

2

U.S. at 136–37 & nn.2–3; accord, e.g., N.Y. Tel., 440 U.S. at 532–33 (upholding an

3

unemployment benefits law that involved merely “the distribution of benefits to

4

certain members of the public”); Linn v. United Plant Guard Workers of Am., Local

5

114, 383 U.S. 53 (1966) (upholding a civil remedy for libel despite its labor-law

6

implications). PEPRA does reflect an overarching concern with a broad and tra-

7

ditional state interest: the budget. Governor Brown’s announcement signals

8

PEPRA was meant to save “billions of taxpayer dollars,” rein in costs, and en-

9

sure that California’s public retirement system remained viable. None of the par-

10

ties has cited authority to suggest California targeted the process of collective

11

bargaining or the relationships between unions and public employers specifically.

12

This question resolves in favor of neither the plaintiffs’ nor the DOL’s position.

13

(ii) General Applicability: PEPRA applies only to employees of the state

14

and its statutory agencies. This limited scope, on the one hand, makes PEPRA

15

comparable to the unilateral decision of a private employer. Under federal labor

16

policy, private employers must not make unilateral changes to wages and condi-

17

tions of employment. Nevertheless, SacRT and MST are not themselves guilty of

18

unilateral mischief, and they are the entities, not the State of California, who

19

would be the beneficiaries of the federal grants at issue here. SacRT’s and MST’s

20

relationships with ATU, not California’s, are at issue here. As discussed below,

21

the DOL unreasonably dismissed SacRT’s and MST’s arguments that they and

22

other agencies have been able to bargain around PEPRA’s effects. This question

23

too resolves in equipoise and helps neither the DOL’s nor the plaintiffs’ case.

24

(iii) Protection of workers’ interests: In general, PEPRA’s changes in-

25

crease the share of pension costs borne by employees and are intended to allevi-

26

ate California’s financial burdens as employer. But as discussed above, only the

27

most general trend in favor of state laws that benefit employees is discernable in

28

federal appellate decisions. Compare, e.g., Metro. Life Ins., 471 U.S. 724 (minimum

29

insurance policy protections), and Fort Halifax, 482 U.S. 1 (severance pay guaran-

30

ties), with, e.g., Oliver, 358 U.S. 283 (elimination of price guaranties favorable to

31

employees), and Machinists, 427 U.S. 132 (withholding of economic remedies

32

from employees). It is not clear from these cases that a state law conflicts with

33

federal policy simply because its substantive result may tend to favor employers’

34

interests. See, e.g., Hull, 935 F.2d at 1197. And here, local transit agencies’ ability

35

to negotiate about pension benefits and employees’ ability to propose offsets is

36

not cut off. This answer does not support the DOL’s motion.

36

1

(iv) Dictating the substantive results of bargaining: PEPRA does not dic-

2

tate the results of collective bargaining. It does impose specific, prospective limi-

3

tations on defined benefits plans. But as the plaintiffs point out, they and the Bay

4

Area Rapid Transit District (BART) have continued collective bargaining over

5

other complementary pension strategies in the wake of PEPRA’s enactment. See

6

Pls.’ Br. at 23–24. The record before the court supports the conclusion that

7

PEPRA leaves local agencies free to negotiate around its effects and within

8

PEPRA’s restrictions. See id.; see also BART Amicus Curiae Br. 4–7, ECF No. 26-

9

1. Federal NLRA decisions recognize an employer’s obligation to bargain with

10

employee unions about the effects of management’s decisions. See First Nat’l

11

Maint. Corp. v. Nat’l Labor Relations Bd., 452 U.S. 666, 681 (1981) (“There is no

12

dispute that the union must be given a significant opportunity to bargain about

13

. . . matters of job security as part of the effects bargaining mandated by § 8(a)(5)

14

[of the NLRA]).”). For example, in NLRB v. Royal Plating and Polishing Co., 350

15

F.2d 191 (3d Cir. 1965), a decision the Supreme Court cited with approval in

16

First National Maintenance, the Third Circuit held that the NLRA does not prohib-

17

it a failing business from deciding unilaterally to relocate or close, provided that

18

first it notifies the union and allows it “an opportunity to bargain over the rights

19

of the employees whose employment status will be altered by the managerial de-

20

cision.” Id. at 196. That is, federal law allows private employers to follow the dic-

21

tates of economic necessity, so long as they bargain over the effects of manage-

22

ment’s decisions. See id. at 196–97. The answer to this question therefore favors

23

the plaintiffs.

24

(v) Clash with goal of encouraging collective negotiation: Finally, alt-

25

hough ATU, SacRT, and MST dispute how extensively PEPRA limits their abil-

26

ity to bargain over pension plans and retirement ages, no one suggests the change

27

works to expand the parameters of collective bargaining with respect to defined

28

benefit plans at least. For example, it is undisputed that in the future, local agen-

29

cies cannot both comply with PEPRA and fund defined benefits plans with cer-

30

tain characteristics. This favors the DOL’s motion.

31

In summary, of these five questions, one favors the plaintiffs, one favors

32

the DOL, and three are neutral or uncertain. It cannot be said that PEPRA sub-

33

stantially conflicts with federal labor policy such that its private analog would be

34

preempted under the NLRA.

35
36
37
38

For an example of a state law that does conflict with federal policy, consider the Georgia statute at issue in Donovan:
[I]n April 1982, the Georgia legislature . . . pass[ed] Act 1506, which
amended [a previous enactment] so as to limit [the Metropolitan At-

37

lanta Rapid Transit Authority’s (MARTA’s)] authority to bargain
collectively with ATU. Specifically, Act 1506 prohibited MARTA
from bargaining over five subjects that are at issue here: the assignment of employees, discharge and termination of employees for
cause, subcontracting of work, fringe benefits for part-time employees, and assignment and calculation of overtime. It also changed the
procedures to be followed for interest arbitration such that, where
the parties could not agree on wages, the matter could be submitted
to arbitration only upon the consent of both parties.

1
2
3
4
5
6
7
8
9
10

767 F.2d at 942–43. Each of the five questions listed above shows how Act 1506

11

conflicted with federal labor policy: (i) it concerned the relationship between em-

12

ployees and MARTA directly, rather than traditional state interests; (ii) it was

13

not generally applicable, but specifically prohibited MARTA from negotiating

14

with the ATU about five topics; (iii) it did not protect workers’ interests; (iv) it

15

dictated the result of collective bargaining by forbidding collective bargaining

16

altogether in a number of respects; and (v) in sum, it was “obvious” to the D.C.

17

Circuit “that several of these provisions [were] completely antithetical to the con-

18

cept of collective bargaining embodied in section 13(c).” Id. at 952–53. The

19

DOL’s analysis of state-law backdrops does not allow the court to grant its mo-

20

tion.

21

E.

Arbitrary Process

22

As noted above, the plaintiffs independently challenge the DOL’s process

23

as arbitrary and capricious in violation of the APA. The path an agency takes to

24

arrive at a decision is subject to review just as well as the decision itself. The

25

APA “establishes a scheme of reasoned decisionmaking.” Allentown Mack Sales &

26

Serv., Inc. v. Nat’l Labor Relations Bd., 522 U.S. 359, 374 (1998) (citation and quo-

27

tation marks omitted). This court must “hold unlawful and set aside agency ac-

28

tion, findings, and conclusions found to be . . . arbitrary, capricious, and abuse of

29

discretion, or otherwise not in accordance with law . . . .” 5 U.S.C. 706(2).

30

“Courts enforce this principle with regularity when they set aside agency regula-

31

tions which, though well within the agencies’ scope of authority, are not support-

32

ed by the reasons that the agencies adduce.” Allentown, 522 U.S. at 374; accord

33

CHW W. Bay v. Thompson, 246 F.3d 1218, 1223 (9th Cir. 2001) (“‘[A]rbitrary and

34

capricious’ review under the APA focuses on the reasonableness of an agency’s

35

decision-making processes.”). An agency’s process was arbitrary if it relied on

36

facts Congress never intended it to, ignored an important aspect of the problem,

37

explained its decision in a way that does not fit the evidence before it, or if its

38

decision is “so implausible that it could not be ascribed to a difference in view or

38

1

the product of agency expertise.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State

2

Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).

3

An agency’s obligations to use a rational process and to interpret statutes

4

correctly are distinct. See, e.g., CHW W. Bay, 246 F.3d at 1223. In other words, an

5

agency might interpret a statute correctly and the court defer to its interpretation,

6

but the agency still could apply that interpretation arbitrarily in violation of the

7

APA. Or the agency might use a perfectly rational process but interpret a law

8

incorrectly.

9

Here, SacRT and MST claim (1) the DOL confused the requirements of

10

sections 13(c)(1) and (c)(2) by focusing on the substance of their collective bar-

11

gaining agreements rather than the parties’ ability to bargain; and (2) the DOL

12

reached an arbitrarily different result in this case than it did in a comparable case

13

from Massachusetts.

14
15

1.

Confusion Between Sections 13(c)(1) and (c)(2)

Sections 13(c)(1) and (c)(2) impose different requirements on a transit

16

agency’s arrangements with its employees. Section 13(c)(1) prevents certification

17

if a transit agency’s arrangements do not include provisions necessary for “the

18

preservation of rights, privileges, and benefits (including continuation of pension

19

rights and benefits) under existing collective bargaining agreements or other-

20

wise.” 49 U.S.C. § 5333(b)(2)(A). Section 13(c)(2) is concerned with another kind

21

of right, “collective bargaining rights.” Id. § 5333(b)(2)(B).

22

SacRT and MST argue that PEPRA applies restrictions to only one type

23

of pension plan, defined benefits plans, and does not restrict their ability to bar-

24

gain with the ATU about defined contribution plans. For this reason they claim

25

the DOL arbitrarily and incorrectly considered the subject of collective bargain-

26

ing agreements (the topic of section 13(c)(1)) rather than the plaintiffs’ ability to

27

bargain under section 13(c)(2). On remand, the DOL was not persuaded by this

28

argument. It found that defined contribution plans shift the risk of market down-

29

turns from the employer to the employees and retirees and are in practice no

30

more than a mandatory savings account. For this reason, the DOL explained, it

31

could not certify the plaintiffs’ applications. PEPRA may allow bargaining over a

32

less desirable form of pension plan, but the parties had traditionally bargained

33

over defined benefits plans. Therefore, in the DOL’s view, PERPA removed an

34

important topic from the bargaining table and did not allow a continuation of

35

collective bargaining rights.

39

1

The DOL did not give much weight to the possibility that ATU, SacRT,

2

and MST could find ways to increase pay, bonuses, or other benefits to compen-

3

sate employees for the increased risks they shouldered in a defined contribution

4

plan, or to offset contributions to a defined benefits plan. This is one of the plain-

5

tiffs’ greatest frustrations: they argue the DOL refuses to recognize their ability to

6

collectively bargain around PEPRA’s restrictions. See Pls.’ Br. at 23 (explaining

7

the point by citation to First National Maintenance Corp., supra, 452 U.S. at 681–

8

82, discussing effects bargaining). The Secretary’s designee explained his reason-

9

ing regarding SacRT:
PEPRA’s effect on collective bargaining rights is much less now than
when I issued my September 4, 2013 decision. Nevertheless, the developments are insufficient for me to certify that protective arrangements exist for the continuation of collective bargaining rights.
SacRTD states that it will not “fully” apply PEPRA until the current
collective bargaining agreement expires or is amended. The term
“fully” suggests that SacRTD may partially implement PEPRA. . . .

10
11
12
13
14
15
16

26

SacRTD is therefore in a different position than transit agencies that
could provide assurances either directly or through the state Attorney General that state laws restricting collective bargaining would
not result in a diminution of collective bargaining rights or failure to
preserve terms of an existing collective bargaining agreement. [Citing
the DOL’s decisions in other cases] In those cases, the transit agencies committed to complying with section 13(c)’s requirements and
not applying a state law that the Department viewed as potentially
precluding such compliance. SacRTD has not made that commitment and asserts a right to apply PEPRA.

27

SacRT Decision at 18–19. And as for MST, the DOL explained, “It is immaterial

28

that Monterey Salinas and ATU negotiated a new collective bargaining agree-

29

ment effective October 1, 2013 because the agreement was bargained within the

30

parameters established by PEPRA.” MST Decision at 18 (citation and quotation

31

marks omitted).

17
18
19
20
21
22
23
24
25

In other words, because SacRT was unable to promise it would not be

32
33

subject to PEPRA’s restrictions, given that PEPRA is state law, and because

34

MST’s post-PEPRA bargaining was affected by PEPRA, the DOL denied certifi-

35

cation. Similarly, BART’s experience was unpersuasive to the DOL in this re-

36

spect:

37
38
39
40
41

The BART unions reportedly bargained over pensions within the
constraints of PEPRA while PEPRA was in effect. Such bargaining
does not provide for the continuation of collective bargaining rights
required by section 13(c)(2) because the continuation of collective
bargaining rights means, as discussed above, that a transit agency

40

10

generally cannot change pension terms during the term of or after
the expiration of a collective bargaining agreement without bargaining to impasse. In some instances, a union may waive its right to
bargain. Whether or not the unions in BART waived their right to
bargain over PEPRA, the unilateral changes required by PEPRA
prevent the continuation of unions’ right to bargain over the changes. Moreover, the BART unions eventually reached an agreement
that did not comply with PEPRA after California passed legislation
suspending PEPRA’s applicability to employees protected by section
13(c).

11

SacRT Decision at 19–20 (citations omitted); accord MST Decision at 19. That is,

12

“the results of bargaining [were] different when PEPRA [was] in effect than

13

when it [was] not in effect,” which “confirms the impact that PEPRA has on col-

14

lective bargaining.” Id.

1
2
3
4
5
6
7
8
9

15

In summary, the DOL’s reasoning appears to be that because SacRT,

16

MST, and BART could only bargain within the confines of PEPRA’s limitations

17

on defined benefits plans, PEPRA did not allow a continuation of collective bar-

18

gaining over pensions. It was concerned about what SacRT and MST might do

19

in the future if they received certification. Bargaining results before PEPRA were

20

“different” than bargaining results after PEPRA.

21

But the DOL did not explore how the bargaining process was different in

22

practice. It explained only in general that bargaining “diminished.” It remains

23

unclear what practical impact the DOL believed PEPRA’s restrictions had on the

24

bargaining process itself, rather than the result of that process. If PEPRA shifted

25

power from ATU to SacRT and MST, for example, how exactly did it do that?

26

What negotiation disadvantages did ATU confront because of PEPRA? Did

27

ATU begin from a position of weakness in pension negotiations? How was ATU

28

unable, if it was unable, to demand concessions in return for the transit agencies’

29

inability to bargain about certain aspects of defined benefits plans? Does experi-

30

ence in other cases show this is true? PEPRA’s practical effect on bargaining is a

31

subject the DOL could have persuasively developed and framed with its exper-

32

tise. Starkly, it did not.

33

It cannot be that bargaining discontinued simply because the results of

34

the bargaining process were “different.” As the DOL recognizes, section 13(c)(2)

35

protects collective bargaining rights, not bargaining results. See SacRT Decision

36

at 9; MST Decision at 9. The DOL does not address why SacRT, MST, and

37

ATU could not make up for PEPRA’s restrictions on defined benefits plans with

38

negotiations over offsets for required contributions to those plans, more generous

39

defined contribution plans, healthcare benefits, insurance packages, wages, bo-

41

1

nuses, and any number of other benefits. The DOL focused instead only on why

2

defined contribution plans are substantively inferior to defined benefits plans and

3

what changes SacRT and MST might make in the future, rather than on their

4

current agreements. This cursory analysis shows it was concerned by the likely

5

substantive results of bargaining, not with the continuation of collective bargain-

6

ing rights. Its decision not to certify was arbitrary.
2.

7
8
9

Inconsistency with a Previous Decision

The plaintiffs’ second argument focuses on a 2009 change to the health
benefits of Massachusetts transit employees and the DOL’s 2011 certification of

10

federal grants to the Massachusetts Bay Transit Authority (MBTA). In 2009,

11

Massachusetts passed a law transferring the MBTA’s group insurance plan to a

12

state insurance commission. MBTA v. Local 589, ATU, AFL-CIO, CLC, No. 13-

13

3409, 32 Mass. L. Rep. 82, 2013 WL 7863572, at *1 (Mass. Super. Ct. Dec. 19,

14

2013) (citing 2009 Mass. Acts Ch. 25 § 140). Previously, insurance coverage had

15

been determined by collective bargaining, but under the new law, collective bar-

16

gaining was prohibited. See id.; 2009 Mass. Acts Ch. 25 § 140.15

17

The ATU and other unions representing MBTA employees objected, and

18

the DOL found in June 2011 that the Massachusetts law “appear[ed] to have re-

19

moved mandatory and/or traditional subjects of collective bargaining from the

20

consideration of the parties and may prevent the MBTA from continuing the col-

21

lective bargaining rights,” as required by section 13(c)(2). 2013 AR 1556–59.

22

MBTA saw its federal funding was in jeopardy and asked the state legislature for

23

an exemption. MBTA, 2013 WL 7863572, at *2. The MBTA and ATU began

24

negotiations to establish a healthcare plan to supplement the coverage offered

25

under the state commission. The MBTA assured the DOL it would be able to

26

collectively bargain with the unions over this supplemental plan. See Letter from

27

Richard Davey, Sec’y, Mass. Dep’t of Transp., to John Lund, Deputy Assistant

28

Sec’y, Off. Labor-Mgmt. Standards, U.S. Dep’t of Labor (Sept. 2, 2011), ECF

29

No. 18-30.16 In reliance on these developments, the DOL certified MBTA’s

15

The statute was specific on this point: “Upon transfer . . . [beneficiaries]
shall receive group insurance benefits determined exclusively by the commission, the
coverage shall not be subject to collective bargaining, and no other reimbursements
or other contractual obligations shall be paid by the [MBTA] for health care benefits
not provided through the group insurance commission.” 2009 Mass. Acts Ch. 25
§ 140.
16

The court previously granted the plaintiffs’ request to supplement the administrative record with this document. See Order Apr. 24, 2014, at 17, ECF No. 41.

42

1

grant. Letter from Ann Comer, Chief, Div. of Statutory Programs, U.S. Dep’t of

2

Labor, to Marybeth Mello, Reg. Admin., Fed. Transp. Admin. (Sept. 9, 2011),

3

ECF No. 18-30.17
The Massachusetts Legislature later formalized this exception in an

4
5

amendment to the statutory provisions cited above. See MBTA, 2013 WL

6

78663572, at *2 (citing 2011 Mass. Acts Ch. 189).18 This amendment also pro-

7

vided that any negotiated supplemental coverage should not duplicate the bene-

8

fits and coverages offered by the state insurance commission. 2011 Mass. Acts

9

Ch. 189.
At the time the DOL certified the MBTA grant, the MBTA and unions

10
11

had not completed negotiations over a supplemental health plan. See Comer Let-

12

ter, supra; MBTA, 2013 WL 7863572, at *2. They did not in fact reach a negoti-

13

ated solution, but came to a bargaining impasse and submitted the matter to in-

14

terest arbitration. Id. The arbitrator made a decision in August 2013, which the

15

Massachusetts Superior Court confirmed over the MBTA’s objections in Decem-

16

ber 2013. Id.
In this case, during the first, pre-remand proceedings before the DOL,

17
18

SacRT cited the Massachusetts law and the DOL’s certification and argued that

19

PEPRA presented an analogous situation. See 2013 AR 131. The DOL disa-

20

greed:

21
22
23
24
25
26
27
28
29
30
31
32

The Massachusetts Act did not place hard caps on health care benefits or impose restrictions on negotiated supplemental plans. The
language of the Act specifically provided an exemption for all current collective bargaining agreements, preserving employees’ existing
rights and benefits. As a result, after extensive negotiations, MBTA
and the union (ATU) were able to agree to a health welfare trust
plan that provided benefits and coverage supplementary to those
provided by the mandated [state commission] coverage. In sum, contrary to the situation here, the Massachusetts Act fully preserved
rights and benefits under existing collective bargaining agreements,
and the parties were able to negotiate a supplemental health plan,
thus continuing collective bargaining rights.

17

See supra note 16.

18

The amendment provided in part as follows: “Nothing in [section 140]
shall restrict the authority of the [MBTA] to bargain collectively . . . over the establishment of a Health and Welfare Trust Plan or to pay the cost, in whole or in part,
as determined by collective bargaining, of any supplementary benefits or coverages
provided under such a trust plan.”

43

1

Id. SacRT raised this argument again during its initial challenge in this court to

2

the DOL’s decision, but this court did not reach it. See Remand Order, 76 F.

3

Supp. 3d at 1144.

4
5
6
7
8
9
10
11
12
13
14
15
16
17

On remand, the parties revisited the MBTA case, and the Secretary’s designee again found the analogy unpersuasive:
As I explained in my September 4, 2013 decision, PEPRA . . . differs
from a Massachusetts law that transferred group health insurance
coverage from a transit agency to an insurance commission because
the Massachusetts law placed no hard caps on health care benefits
and no restrictions on negotiating supplemental plans. AR 131.
PEPRA puts hard caps on defined benefit plans and restricts parties’
ability to negotiate supplemental defined benefit plans, even if such
plans do no more than supplement (such as by establishing a guarantee of minimum benefit) a defined contribution retirement plan such
as those envisioned by PEPRA.

SacRT Decision at 20–21; MST Decision at 20.
Here, the plaintiffs ask the court to find that the DOL’s decisions are arbi-

18

trarily inconsistent with its decisions in the MBTA case. As noted above, under

19

the APA, administrative agencies must “treat like cases alike” and explain incon-

20

sistencies. Westar Energy, 473 F.3d at 1241. SacRT’s and MST’s motion cannot

21

be granted on this basis.

22

Both in 2013 and 2015 the DOL explained its belief that the Massachu-

23

setts law differed from PEPRA because it allowed the MBTA and its unions to

24

continue negotiations over health insurance coverage and imposed no “hard

25

caps” on the substance of their agreements. Although SacRT and MST are cor-

26

rect that under PEPRA they may negotiate a defined contribution plan with the

27

ATU, PEPRA prohibits the adoption of a defined benefit plan with characteris-

28

tics outside its boundaries. See Cal. Gov’t Code § 7522.02(e). The plaintiffs have

29

not drawn the court’s attention to a PEPRA provision or part of the administra-

30

tive record showing the DOL understood that law erroneously as imposing a

31

kind of “hard cap” on defined benefit retirement plans. Rather, it seems a result

32

analogous to that adopted by the Massachusetts Legislature in the MBTA case

33

has been achieved: the California legislature created an exemption that could

34

limit PEPRA’s reach in response to the DOL’s and this court’s decisions. See id.

35

§ 7522.02(a)(3); see also supra notes 15, 18.

36

The court does agree with the plaintiffs that the DOL wrote incorrectly in

37

2013 that the MBTA and its unions had successfully negotiated a supplemental

38

health plan in 2011. Nevertheless, the DOL’s 2015 decisions do not rely on this

44

1

misunderstanding. Nor would a correction have much effect, if any: “collective

2

bargaining rights” means negotiation in good faith to impasse, if necessary,

3

which describes what the MBTA and its unions did. See MBTA, 2013 WL

4

7863572, at *2.

5

F.

Conclusion—Section 13(c)(2)

6

The DOL’s decisions on remand cannot be upheld on the basis of its in-

7

terpretation of section 13(c)’s language or legislative history. The same is true of

8

the DOL’s review of federal appellate decisions contemporary to UMTA’s pas-

9

sage, its consideration of the differences between public and private bargaining,

10

and its review of what state laws may form a permissible backdrop to collective

11

bargaining. At most the authorities on which DOL relies show that section

12

13(c)(2) prevents certification if a state passes laws that substantially clash with

13

federal labor policy. It is not possible to conclude on this record that PEPRA

14

substantially clashes with federal labor policy.
In addition, the DOL’s decisions to deny certification under section

15
16

13(c)(2) cannot be upheld because the DOL focused on the results of collective

17

bargaining under PEPRA rather than on whether protective arrangements en-

18

sured a continuation of the process through which collective bargaining rights are

19

exercised. Similarly, the DOL unjustifiably rejected evidence that California

20

transit agencies had bargained over pensions notwithstanding PEPRA’s limita-

21

tions on defined benefits plans. By contrast, the DOL’s analysis of a previous

22

case in Massachusetts was not arbitrary or capricious and cannot support the

23

plaintiffs’ motion.

24

For these reasons, to the extent the DOL’s decisions on remand rejected

25

certification under section 13(c)(2), it acted arbitrarily, and its decisions must be

26

set aside under 5 U.S.C. § 706(2)(A). But because the DOL also denied certifica-

27

tion under section 13(c)(1), the plaintiffs cannot obtain relief unless they also pre-

28

vail on their second claim, which concerns that section. The court now turns

29

to it.

30

V.

THE PRESERVATION OF RIGHTS, PRIVILEGES AND

31

BENEFITS

32

A.

33

In the Remand Order, this court found the DOL had exceeded its author-

SacRT

34

ity by redefining the scope of a collective bargaining agreement to protect the

35

rights of future employees. See 76 F. Supp. 3d at 1145. The DOL believed this

36

conclusion was erroneous, but rather than requesting reconsideration or a modi-

45

1

fication of the judgment, for example under Federal Rule of Civil Procedure

2

59(e) or 60(b), and instead of obtaining relief from the Ninth Circuit Court of

3

Appeals, the DOL dismissed its appeal voluntarily and again denied certification

4

to SacRT for the same reason. See SacRT Decision at 21. Therefore, in the En-

5

forcement Order, the court set aside the DOL’s decision to deny certification to

6

SacRT on the basis of section 13(c)(1). See Enforcement Order at *5.
This court has no desire to persist in any error it committed. It may well

7
8

be that SacRT’s collective bargaining agreement offers some protections to future

9

employees. See, e.g., 2013 AR 372 (“All new employees [i.e., new hires] shall be

10

on probation for a period of 180 days (six months) from the completion of train-

11

ing.”). But the court cannot bless the DOL’s strategy here. For this reason the

12

court declines to reconsider its order setting aside the DOL’s decision to deny

13

certification to SacRT under section 13(c)(1).
As to SacRT, the plaintiffs’ motion is granted, and the DOL’s motion is

14
15

denied.

16

B.

MST

17

MST’s application presents three additional problems.

18

First, the DOL’s decision on remand denied certification to MST because

19

it found the pension rights of neither new nor classic employees were preserved.

20

See MST Decision at 20–21. But the plaintiffs’ supplemental complaint challeng-

21

es only the DOL’s discussion of new employees’ rights. See Suppl. Compl.

22

¶¶ 100–10, ECF No. 88-2. The parties disagree whether the supplemental com-

23

plaint can nevertheless be read to imply a challenge to both new and classic em-

24

ployees. If it cannot, MST asks for leave to amend its supplemental complaint,

25

and the DOL argues an amendment should not be allowed.
Second, the DOL argues its decision may be upheld on a straightforward

26
27

reading of section 13(c)(2). See DOL Br. at 15; DOL Resp. at 16. However, its

28

current briefing relies on a reading of two phrases it did not present to the parties

29

in issuing the 2015 letters. MST argues the DOL has attempted to justify its deci-

30

sion after the fact by relying on this new material and asks the court to disregard

31

it.

32

Third is the substance of the DOL’s decision on remand. As noted above,

33

it found that MST had not adopted protective arrangements to preserve the rights

34

of its new and classic employees. MST argues the DOL has not identified any

35

specific right that was not preserved. The next three subsections address these

36

issues.

46

1.

1

Amendment to the Supplemental Complaint

2

Federal Rule of Civil Procedure 15 governs amendments to the plead-

3

ings. The policy of Rule 15 heavily favors amendments that allow a case to be

4

decided on its merits. See, e.g., Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149,

5

1160 (9th Cir. 1989); DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir.

6

1987); see also Fed. R. Civ. P. 15(b)(1) (allowing amendment even in trial, “when

7

doing so will aid in presenting the merits and the objecting party fails to satisfy

8

the court that the evidence would prejudice that party’s action or defense on the

9

merits”). Leave to amend may be denied if the amendment is sought in bad faith,

10

if it would prove an exercise in futility, or if it would cause undue delay, among

11

similar reasons, see, e.g., Cafasso, U.S. ex rel. v. General Dynamics C4 Sys., Inc., 637

12

F.3d 1047, 1058 (9th Cir. 2011), but the focus of Rule 15 is what prejudice the

13

opposing party will suffer as a result, Eminence Capital, LLC v. Aspeon, Inc., 316

14

F.3d 1048, 1052 (9th Cir. 2003).
Here, the plaintiffs’ supplemental complaint does not clearly allege any

15
16

claim about classic employees’ rights under section 13(c)(1). It focuses on new

17

employees and employees who have not yet been hired. See Suppl. Compl.

18

¶¶ 100–10. Nevertheless, the parties have devoted several pages of their existing

19

briefing to classic employees. See DOL Br. at 15–20; Pls.’ Br. at 36–38; DOL

20

Resp. at 18–21; Pls.’ Resp. at 7–10. The DOL has not described what specific

21

prejudice it would suffer if MST is allowed leave to amend. The court therefore

22

grants MST’s request to amend its complaint to allege a claim based on the

23

DOL’s denial of certification under section 13(c)(1) with respect to classic em-

24

ployees. To alleviate any prejudice this amendment may cause, the court allows

25

both parties to file short supplemental briefs, as detailed in the conclusion of this

26

order.

27
28

2.

Statutory Interpretation and Post-Hoc Rationalizations

In the DOL’s current briefing, it argues that its decisions may be upheld

29

because section 13(c) protects the rights of all employees “affected by the assis-

30

tance” and because section 13(c)(1) addresses the preservation of rights under

31

collective bargaining agreements “or otherwise.” See DOL Br. at 17–18; DOL

32

Resp. at 21–25. The DOL did not rest its decision to deny certification on these

33

provisions on remand. “It is well-established that an agency’s action must be up-

34

held, if at all, on the basis articulated by the agency itself.” Motor Vehicle Mfrs.

35

Ass’n, 463 U.S. at 50.

47

1

The DOL argues in response that its citations to these phrases can sup-

2

port its current motion because this court must interpret the entirety of section

3

13(c). The court agrees that all of section 13(c) is relevant, but disagrees that the

4

parties’ motions may be resolved on the basis of unambiguous statutory lan-

5

guage, as explained in the next section. The DOL’s new arguments cannot sup-

6

port its motion.
3.

7

The Rights of Future Employees

As discussed above, when a federal court is asked to review an adminis-

8
9

trative agency’s interpretation of a statute, the first question is that law’s plain

10

meaning. Both the court and the agency are bound by Congress’s plain expres-

11

sions of intent. Chevron, 467 U.S. at 842–43. When ambiguities arise, the agen-

12

cy’s interpretation is allowed binding deference under Chevron if that appears to

13

have been Congress’s intent. See Mead, 533 U.S. at 227–28. Otherwise, the agen-

14

cy’s decisions receive lesser deference under Skidmore. See id.

15

Here the DOL argues section 13(c)(1) unambiguously supports its posi-

16

tion. See DOL Br. at 15; DOL Resp. at 16. MST does not define its position so

17

clearly, but its citations of legislative history suggest it is less certain of the stat-

18

ute’s unambiguity. See Pls.’ Br. at 31–32. The court begins again with the statute

19

itself:

20
21
22
23
24
25
26
27

(1) As a condition of financial assistance . . . the interests of employees affected by the assistance shall be protected under arrangements
the Secretary of Labor concludes are fair and equitable. . . .
(2) Arrangements under this subsection shall include provisions that
may be necessary for—
(A) the preservation of rights, privileges, and benefits (including
continuation of pension rights and benefits) under existing collective bargaining agreements or otherwise . . . .

28

49 U.S.C. § 5333(b)(1)–(2). Like section 13(c)(2), this section requires some read-

29

ing between the lines.

30

For one, “preservation” and continuation” also appear in section

31

13(c)(1). In its decisions on remand, the DOL defined “preservation” by referring

32

to the verb “preserve,” which it defined as “to keep from harm, damage, danger,

33

evil; protect; save.” SacRT Decision at 8 (quoting Webster’s New World Dictionary

34

of the American Language 1153 (college ed. 1962)); MST Decision at 8 (same). It

35

also wrote that “preservation of rights” means “an employer cannot change

36

rights.” SacRT Decision at 9; MST Decision at 9. In light of the ambiguous

37

meaning of “continuation,” described above, the court cannot agree that any

48

1

“change” prevents a preservation or continuation of rights. Nothing about sec-

2

tion 13(c) suggests Congress meant to use “continuation” differently in sections

3

13(c)(1) and (c)(2). In both sections its context and apparent purpose are similar:

4

the status of rights during a shift to publicly operated mass transit. Cf. Gen. Dy-

5

namics Land Sys., Inc. v. Cline, 540 U.S. 581, 595 (2004) (the same word used in

6

different parts of the same law is presumed to have the same meaning unless

7

(1) it has “several commonly understood meanings among which a speaker can

8

alternate in the course of an ordinary conversation, without being confused or

9

getting confusing” and (2) the context of its use shows a “variation in the connec-

10
11

tion in which the words are used” (citation and quotation marks omitted)).
Second, the meaning of the word “existing” is not immediately obvious

12

on the face of section 13(c)(1). At one level the ambiguity is easily addressed. The

13

DOL understood the “existing collective bargaining agreement” to refer to the

14

agreement in force at the time a transit agency applies for federal funds. The

15

plaintiffs do not challenge this definition, and the court finds it is a reasonable

16

reading. Congress could not have meant to preserve only those rights “existing”

17

at the time UMTA was passed, for example. Otherwise the employees of transit

18

agencies created after UMTA’s passage would have no “existing” rights to pre-

19

serve, considering the absence of a sunset provision from section 13(c). See Do-

20

novan, 767 F.2d at 957 (Ginsburg, J., concurring).

21

Section 13(c)(1) however requires an additional inference with respect to

22

“existing collective bargaining agreements.” At face value, it refers to all “rights,

23

privileges, and benefits . . . under existing collective bargaining agreements,” re-

24

gardless of the expiration of an existing agreement, regardless of renegotiations

25

down the road, and regardless of inevitable employee turnover. That is, section

26

13(c)(1) could be read to refer to all rights defined in an existing agreement and

27

require a preservation of those rights in all future agreements for all employees,

28

past, present, and future. The plaintiffs, the DOL, and the ATU do not adopt this

29

position, and rightly so. It seems unlikely Congress meant to freeze in place the

30

substantive rights, privileges, and benefits negotiated at the time of each employ-

31

er’s first application for federal funding. Rather, the plaintiffs and the DOL infer

32

different limitations from section 13(c)(1)’s context and history.

33

The DOL understands section 13(c)(1) to encompass the rights guaran-

34

teed to both (a) employees who have already been hired and (b) unknown pro-

35

spective employees who may be eligible for protection under the same agreement

36

in the future, if they are hired. See, e.g., MST Decision at 20 (“[I]t is axiomatic

37

that when an established bargaining unit expressly encompasses employees in a

49

1

specific classification, new employees hired into that classification [i.e., new

2

hires] are included in the suit.” (quoting In re Airway Cleaners, LLC, 362 NLRB

3

No. 87 (Apr. 15, 2015))). In other words, the DOL interprets section 13(c)(1) to

4

require the unchanging preservation of all rights, privileges, and benefits during

5

the agreement’s term. In contrast, the plaintiffs argue, “Congress intended sec-

6

tion 13(c)(1) to protect the ‘hard earned’ pension benefits of already-hired and

7

already-retired transit employees who risked loss of benefits and years of service

8

in the switch from private to public employment.” Pls.’ Br. at 31. They

9

acknowledge that prospective employees may have 13(c)(1) rights under a bar-

10

gaining agreement, but “submit that the particular substantive rights protected by

11

13(c)(1) cannot encompass rights and benefits to which the new employee would

12

have no claim under state law.” Pls.’ Resp. at 10 (emphasis in original).

13

These competing interpretations each have strengths and weaknesses. For

14

example, the plaintiffs have the benefit of the most poignant dangers identified in

15

section 13(c)’s legislative history. Among other citations, they refer to legislators’

16

disapproval of a transit agency that refused to accept the pension obligations of a

17

private transit company’s retired employees. Pls.’ Br. at 31–32. In response, the

18

DOL argues that Congress meant for federal funding to encourage transit agen-

19

cies to hire more employees. DOL Resp. at 23. It points out that Congress prob-

20

ably did not mean for new hires to be exempted from the protections required by

21

section 13(c)(1). See id. at 23–24.

22

Had the DOL supported its current legal arguments with citations to spe-

23

cific rights, privileges, and benefits for MST’s employees and then identified

24

which PEPRA provisions eliminated MST’s ability to make arrangements that

25

protected those rights, this order might have resolved differently. Instead, on re-

26

mand the DOL found (1) that this court misperceived the definition of a collec-

27

tive bargaining unit under MST’s collective bargaining agreement; (2) that

28

MST’s bargaining agreement applied to “new employees,” as defined in PEPRA;

29

and (3) that PEPRA changed the way benefits are calculated under defined bene-

30

fits plans. See MST Decision at 20–21.

31

The DOL did not explain why PEPRA prevented MST from negotiating

32

its way around PEPRA’s limitations such that past, present, and future employ-

33

ees’ rights would be preserved, even if only in an alternative form. Section

34

13(c)(1) cannot be interpreted to prohibit every “change” to a collective bargain-

35

ing agreement, even changes without any meaningful effect. The DOL did not

36

explain why it made no difference that MST did not even have “new employees”

37

covered by the existing agreement, who would be affected by PEPRA. See 2013

50

1

AR 912 (“Pension benefits under [MST’s collective bargaining agreement] will

2

not be affected by PEPRA as MST has no ‘new’ employees. MST has not hired

3

any [such employee] and shall not hire any such employee [before the expiration

4

of the collective bargaining agreement].”). To the extent the DOL’s decision rests

5

on its conclusion that PEPRA is an impermissible state-law backdrop, the court

6

cannot uphold its reasoning, as discussed above and in the Remand Order.
The DOL’s decision on remand leaves too many basic questions unan-

7
8

swered to be persuasive, or accorded deference. This court cannot fill in the

9

blanks on the DOL’s behalf. See Crickon v. Thomas, 579 F.3d 978, 982 (9th Cir.

10

2009) (citing Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43). Neither can its attorneys

11

after the fact. See Humane Soc. of U.S. v. Locke, 626 F.3d 1040, 1049 (9th Cir.

12

2010).
As for MST’s “new employees,” the DOL’s motion is denied, and the

13
14

plaintiffs’ motion is granted.

15

VI.

CONCLUSION

16

The parties’ cross motions are granted in part and denied in part:

17

(1)

With respect to SacRT, the DOL’s motion is denied, and the
plaintiffs’ motion is granted.

18

(2)

19

With respect to MST’s “new employees,” the DOL’s motion is
denied, and the plaintiffs’ motion is granted.

20

(3)

21

This order does not resolve the pending motions to the extent

22

they concern MST’s “classic employees”; nevertheless, with re-

23

spect to these employees, the DOL’s motion cannot be granted

24

on the basis of its analysis of section 13(c)(2). Its motion is denied

25

in that respect.
The court grants plaintiffs’ request to amend the supplemental complaint

26
27

to allege a claim based on the DOL’s denial of certification under section 13(c)(1)

28

with regard to MST’s classic employees. An amended supplemental complaint

29

shall be filed within seven days. The parties’ current motions will be construed

30

to apply to that amended supplemental pleading. To alleviate any prejudice this

31

amendment may cause the DOL, it is granted leave to file a five-page supple-

32

mental brief in support of its motion. MST is likewise allowed a five-page sup-

33

plement. Both parties’ supplemental briefs shall be filed within fourteen days of

34

the date this order is filed.

35

/////

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1
2
3
4

The court does not at this point reach the question of any appropriate
remedy.
IT IS SO ORDERED.
DATED: August 19, 2016.

UNITED STATES DISTRICT JUDGE

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