# Petition for Writ of Certiorari — Amalgamated Transit Transit Union Local No. 1338 v. Dallas Area Rapid Transit (No. 08-1173) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0312%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2009 ## Text Supreme Coit, U.S. "7 (1) FILED No. 08-__ 08117 3 MAR 19 2009 OFFICE OF THE CLERK Wittara K. Suter, Clerk IN THE Supreme Court of the Gnited States AMALGAMATED TRANSIT UNION LOCAL No. 1338, Petitioner, Vv. DALLAS AREA RAPID TRANSIT, Respondent, On Petition for a Writ of Certiorari to the Supreme Court of Texas PETITION FOR A WRIT OF CERTIORARI HAL K. GILLESPIE * JOSEPH H. GILLESPIE GILLESPIE, ROZEN, WATSKY & JONES, P.C. 3402 Oak Grove Avenue, Suite 200 Dallas, Texas 75204 * Counsel of Record (214) 720-2009 NEEL IB yp PISAIDE QUALI IIS, MEE GS CET WILSON-EPES PRINTING Co., INC. — (202) 789-0096 - WASHINGTON, D.C. 20002 QUESTIONS PRESENTED The Supreme Court held in Jackson Transit Au- thority v. Local Division 1285, Amalgamated Transit Union, AFL-CIO-CLC, 457 U.S. 15 (1982), that a union does not have a federal cause of action to sue in federal court to enforce the provisions of a “Section 13(c)”! arrangement and a collective bar- gaining agreement negotiated pursuant to such arrangement against a local transit authority under the Urban Mass Transit Act of 1964, as amended, 49 U.S.C.A. § 1609(c)X(“UMTA”).* Jackson Transit Authority held that any such suit must be filed under state law. The Texas Supreme Court held in Dallas Area Rapid Transit v. Amalgamated Transit Union Local No. 1338, 273 S.W.3d 659, 2008 WL 5266379 (Tex. 2008) that Texas governmental immunity law is not preempted by Section 13(c) of UMTA and therefore the local transit authority (Dallas Area Rapid Transit) is immune from a breach of contract suit filed by a union in state court regarding an alleged violation of the parties’ 13(c) arrangement. The questions presented are: 1. Whether the decision of the Texas Supreme Court conflicts with the decision of the United States Supreme Court in Jackson Transit Authority? 2. Whether federal preemption applies to Texas- state immunity law that otherwise would bar a union’s state court suit against a governmental entity for alleged violations of a Section 13(c) arrangement? ‘Section “13(c)” is now codified under section 5333(b) of the Transportation Code. * UMTA is now known as the Federal Public Transportation Act, as amended. (1) li 3. Whether UMTA gives a union the right to pursue a contract action in state court, regardless of state law that provides governmental entity immun- ity from suit, for alleged violation of a Section 13(c) arrangement and agreements reached pursuant to the Section 13(c) arrangement? 4. Whether the Court in Jackson Transit Authority intended the “right” to “pursue a contract action in state court” merely meant that the union could file suit, subject to summary dismissal because of governmental immunity, or whether the Supremacy Clause dictates that 13(c) arrangements and agreements reached pursuant to those arrangements can both be filed and considered on the merits in state court? ii LIST OF PARTIES AND RULE 29.6 STATEMENT The parties before the Texas Supreme Court and this Court are Amalgamated Transit Union Local No. 1338 (petitioner before this Court, respondent before the Supreme Court of Texas) and Dallas Area Rapid Transit (respondent before this Court, petitioner be- fore the Supreme Court of Texas). To Petitioner’s knowledge, Dallas Area Rapid Transit and Amalga- mated Transit Union Local No. 1338 have no parent corporations owning 10% or more of the corporations’ stock. TABLE OF CONTENTS QUESTIONS PRESENTED.........................cc0000 LIST OF PARTIES AND RULE 29.6 LIST........ FAB OF ALTHORIETIRG.......00secoveccrosessseccneess PETITION FOR WRIT OF CERTIORARI ......... SY MN occicdncekocccacsvadentaceinnnendansexiocen I aod lice aiccsaxsaresunssnsdasuxarcevapioacasavens FRE Os Oe BE Fr EBD ve sssvessvcsvencvavenectsacccosveners STATEMENT OF THE CASE ............ccccossssseosese REASONS FOR GRANTING THE WRIT.......... i. II. The Texas Supreme Court Decision Conflicts with the United States Supreme Court Decision in a Manner that Impacts Federal Law.....................044 In the Alternative, if Jackson Transit Authority did not By Implication Hold That State Immunity Law Is Preempted When a Union Pursues a Breach of Contract Action Over a 13(c) Matter in State Court, the Unresolved Issue Is an Important Federal Question that Should be Settled by the Supreme Court and the Holding of the Supreme Court of Texas is Repugnant to the Constitution and Laws of the United States................. A. This is an Important Federal Ques- tion That Should be Settled by the COR SIS si vases swninchstiaccieuciavsens B. The Holding of the Supreme Court of Texas is Repugnant to the Constitu- tion and Laws of the United States..... (v) 14 15 16 vl TABLE OF CONTENTS—Continued TE asi cdinkscpasatecesitbarnnseivesaasinsnessbecsiaiads APPENDIX APPENDIX A: Opinion of the Texas Supreme a aa a ia cad cine APPENDIX B: Opinion of Texas Fifth District Be A IID aiiiiss ssassssccvescacnencdesvesecsiocvsane APPENDIX C: Judgment of Texas Fifth Dis- CPOE CPE OE FI DORIS oe .eccceccsscscosceesevescoveess APPENDIX D: Order of Texas Fifth District Court of Appeals Denying Rehearing.......... APPENDIX E: Order on Plea To the Juris- diction of 191st Judicial District Court, ee a caahbuakeudueotes APPENDIX F: Plaintiff Amalgamated Transit Union Local No. 1338’s Original Petition I Noi indskescanesestissisccansssecsansses APPENDIX G: General Grievance Resolution ee pcan aoa APPENDIX H: Defendant DART’s Original ta ETRE RIE Fe Sr oe APPENDIX I: Plaintiff Amalgamated Transit Union Local No. 1338’s Amerded Original SRE aS ke Nee ee a APPENDIX J: Defendant DART’s Plea to the Sa REE ORS IO OT APPENDIX K: Parties’ 13(c) Arrangement .... APPENDIX L: Portions of DART HEM .......... 24a 33a 34a 35a Vl1l TABLE OF CONTENTS—Continued APPENDIX M: Plaintiff Amalgamated Transit Union Local No. 1338’s Second Amended CE PN iiss ook cdacccacddekccbpcteceneracassie APPENDIX N: Plaintiff Amalgamated Transit Union Local No. 1338's Supplemental Briefing to Defendant’s Plea to the SI fides ts nedevncdcacbisneanssnvekchceiwvineccdonkets APPENDIX O: Excerpt of Federal Register Vol. 69, No. 10, Thursday, Jan. 15, 2004..... Page 124a 134a 165a Vill TABLE OF AUTHORITIES CASES Page Dallas Area Rapid Transit v. Amalga- mated Transit Union Local No. 1338, 273 S.W.3d 659, 2008 WL 5266379 (Tex. MT ivadancddihia Glob vacisseadubigdareseshbcsniaseienduiininne passim Dallas Area Rapid Transit v. Plummer, 841 S.W.2d 870 (Tex. App.-Dallas, 1992, iii ind dstcd vkuntvabeoainsccesiavsectbecsinecs 6 Eichelberger v. Eichelberger, 582 S.W.2d Be Bis cocccckasccvivccsivcaseeetieceslenses 10 Geier v. Am. Honda Motor Co., 529 U.S. a 7 Jackson Transit Authority v. Lecal Divi- sion 1285, Amalgamated Transit Union, AFL-CIO-CLC, 457 U.S. 15 (1982).......... passim Lindsey v. Dallas Area Rapid Transit, et al., 2009 WL 453769 (N.D. Tex. 2009) (Civ. Action No. 3:08cv1096, Feb. 23, ee 17 STATUTES Te class neivecadsensspinentabens 2 49 U.S.C. § 1GO9(C) ....c.ceccccecesecessscscesscecarcocees i ee ees I Oe TE ns hbncvivetcnesoxscteccecvcnene 4 4 3 Or Ste I Ke ckcsssindacevecssccssscasivesesey’ 2:3, Tex. Transportation Code, Chapter 452 OTHER 2007 FTA Funding Obligations by State: http://www. fta.dot.gov/documents/TABLE _6_OBLIGATIONS_BY_ PROGRAMS A I i IN fois pcnexsnenatvaduisccdedeensishents 15 Fed. Register, Vol. 69, No. 10 at 2458, #3 Private Mass Transportation Com- I ane dard cca sk Fert keusaboccavassssvacenubexien canes 4, 165a IN THE Supreme Court of the Anited States No. 08-__- AMALGAMATED TRANSIT UNION LOCAL No. 138388, Petitioner, Vv. DALLAS AREA RAPID TRANSIT, Respondent, On Petition for a Writ of Certiorari to the Supreme Court of Texas PETITION FOR A WRIT OF CERTIORARI Petitioner Amalgamated Transit Union Local No. 1338 respectfully submits this petition for a writ of certiorari to review the opinion of the Supreme Court of Texas. OPINIONS BELOW The opinion of the Supreme Court of Texas is pub- lished as Dallas Area Rapid Transit v. Amalgamated Transit Union Local No. 1338, 273 S.W.3d 659, 2008 WL 5266379 (Tex. 2008). Pet. App. la. The opinion of the Court of Appeals for the Fifth District of Texas is published as 173 S.W.3d 896 (Tex.App. Dallas, 2005). Pet. App. 24a. The Judgment of the Court of Appeals for the Fifth District of ‘Texas is attached in the appendix. Pet. App. 33a. The Order denying 2 DART’s motion for rehearing before the Court of Ap- peals for the Fifth District of Texas is attached in the appendix. Pet. App. 34a. The unpublished order of the District Court, 191lst Judicial District, Dallas County, Texas, the Hon. Catharina Haynes, February 1, 2005, Cause No. 04-06740-J, is attached in the ap- pendix. Pet. App. 35a. Excerpts of the record, rele- vant for the Court’s review of this petition for certi- orari, are also contained in the Appendix. Pet. App. 37a-168a. JURISDICTION The Supreme Court of Texas entered its opinion and judgment on December 19, 2008. The jurisdic- tion of this Court is invoked pursuant to 28 U.S.C. §1257(a). CONSTITUTIONAL PROVISION AND STATUTES INVOLVED The Supremacy Clause within Article VI of the U.S. Constitution provides, in relevant part: This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the con- trary notwithstanding. U.S. CONST. art. VI, cl. 2. UMTA provides in relevant part: As a condition of financial assistance under sec- tions... of this title, the interest of employees affected by the assistance shall be protected un- der arrangements the secretary of Labor con- 3 cludes are fair and equitable .... Arrangements under this subsection shall include provisions that may be necessary for — (A) the preservation of rights, privileges, and benefits (including con- tinuation of pension rights and benefits) under existing collective bargaining agreements or oth- erwise; (B) the continuation of collective bar- gaining rights.... 49 U.S.C. 5333(b). STATEMENT OF THE CASE Petitioner Amalgamated Transit Union Local No. 1338 (“ATU 1338”) is a labor organization that represents employees of Dallas Area Rapid Transit (“DART”). DART is a regional transportation au- thority organized and existing under Texas Transpor- tation Code, Chapter 452. ATU 1338 and DART are parties to a Section 13(c) arrangement under the Ur- ban Mass Transportation Act, 49 U.S.C. §5333(b) (““UMTA”). This Court previously discussed UMTA, Section 13(c) protective arrangements, and the legislative history behind UMTA in Jackson Transit Authority v. Local Division 1285, Amalgamated Transit Union, AFL-CIO-CLC, 457 U.S. 15 (1982). When UMTA was drafted, in approximately 1963, Congress was aware that several financially suffering private mass trans- portation companies across the country were being purchased by local governments and those local gov- ernments needed assistance from the federal gov- ernment. Jackson Transit Authority, 457 U.S. at 17. At the same time, Congress recognized that as those private companies were purchased by public entities, the existing collective bargaining rights of the mass transit employees were at risk because several states 4 had anti-collective bargaining laws for public em- ployees. Jd. Congress recognized the importance of preserving and protecting the existing and future rights of those employees to continue collective bar- gaining in a way that would still allow the federal government to provide financial assistance to the lo- cal governments. /d. Due to this concern, and to prevent federal funds from being used to destroy collective bargaining, Congress included Section 13(c) in UMTA. ZId. Sec- tion 13(c), now 49 U.S.C. 5333(b), requires a state or local government to make arrangements to preserve transit workers’ rights for that entity to receive fed- eral assistance pursuant to §5307 et seq. of the Act. Id. at 15. Subject to a Section 13(c) arrangement, DART receives millions of dollars in federal grants every year from the Federal Transit Authority (“FTA”) and must remain eligible for federal funding by submitting anrual Certifications and Assurances to the FTA stating that DART acknowledges its com- pliance with 49 U.S.C. 5333(b). See, Fed. Register, Vol. 69, No. 10 at 2458, #3 Private Mass Transporta- tion Companies. Pet. App. 165a. The 13(c) ar- rangement between DART and ATU 1338, is the par- ties’ protective arrangement for purposes of satisfying the requirements of §5333(b), without which DART would be ineligible for federal funding under UMTA. In April 2001, in accordance with the parties’ 13(c) arrangement, ATU 1338 filed a “General Group Grievance” seeking improvements in wages and working conditions. In order to address the griev- ance, and pursuant to the parties’ 13(c) arrangement, the parties met and conferred to address the griev- ance issues. The parties’ 13(c) arrangement, consis- tent with Texas law, does not permit collective bar- 5 gaining between DART and the union. In place of collective bargaining, the 13(c) arrangement requires DART to meet and confer about proposed changes or modifications to wages and working conditions, through a “general grievance” process. That process, like collective bargaining, fosters agreements be- tween the parties to resolve disputes and to encour- age labor peace. An agreement between DART and ATU 1338 may be reached before or after “fact find- ing.” Non-binding fact finding is included in the gen- eral grievance process to encourage the parties to reach agreements. If the parties fail to reach an agreement, DART makes the final decision. State law does not provide for interest arbitration and does not permit strikes by public employees. Through the meet and confer sessions, in June 2002 DART and ATU 1338, without fact finding, reached certain agreements and entered into a Gen- eral Grievance Resolution (“Resolution Agreement”) that the parties ratified and signed. Pet. App. 48a. The Resolution Agreement resolved the parties’ labor dispute and, among other things, provided for annual 4% salary and wages increases for operating em- ployees in October 2001, October 2002, and October 2003 and stated that DART would not make any un- ilateral changes to the parties’ Hourly Employment Manual (“HEM”) except for issues not addressed within the Resolution Agreement. /d. In September 2003, the DART Board of Directors approved DART’s 2003-2004 budget but did not pro- vide for the 4% general pay increase required by the parties’ Resolution Agreement. DART also made sev- eral unilateral changes to the HEM. Alleging that DART had viclated the 13(c) ar- rangement and the Resolution Agreement reached 6 pursuant to the 13(c) arrangement, ATU 1338 filed suit in district court in Texas in July 2004. Pet. App. 37a. ATU 1338 asserted that its breach of contract action in state court was in conformity with Jackson Transit Authority as previously ruled upon in Dallas Area Rapid Transit v. Plummer, 841 S.W.2d 870 (Tex. App. Dallas, 1992, writ denied). Pet. App. 41a. DART filed a plea to the jurisdiction, seeking dismis- sal of the suit based upon DART’s state governmental immunity. Pet. App. 68a. On November 16, 2004, the District Court heard DART’s plea to the jurisdiction and requested addi- tional briefing from the parties regarding whether or not the Supremacy Clause of the United States Con- stitution would in any way preempt DART from be- ing able to claim governmental immunity when ATU 1338 brought suit in state court to enforce the par- ties’ 13(c) arrangement. On December 17, 2004, ATU 1338 timely filed its supplemental briefing to the dis- trict court regarding the issue of federal preemption. Pet. App. 134a. The trial court denied DART’s plea to the jurisdiction in an order signed by district court judge, Catharina Haynes, on February 1, 2005.’ DART took an interlocutory appeal to the Texas Fifth District Court of Appeals. Before the appellate court, preemption was the central issue. On October 14, 2005, Justices Whittington, Francis, and Lang en- tered an opinion and judgment denying DART’s plea to the jurisdiction. Pet. App. 24a. The Court of Ap- peals decision quoted extensively from Jackson Tran- sit Authority in determining that UMTA “preempts state governmental immunity law in this case.” Pet. App. 26a and 3la. —— ++ ' Judge Haynes now sits on the United States Court of Appeals for the Fifth Circuit. 7 Relying upon this Court’s precedent, the Court of Appeals held that federal law impliedly preempts state law if it is impossible for a private party to comply with both state law and federal requirements or if state law obstructs accomplishing and executing Congress’s full purposes and objectives. See Geier v. Am. Honda Motor Co., 529 U.S. 861, 882 (2000) Pet. App. 3la. The Fifth District Court of Appeals noted that in Texas, state law prohibits collective bargain- ing by government employees but that DART is a party to an, “Arrangement Pursuant to Section 13(c) of the Urban Mass Transportation Act of 1964,” un- der which DART agreed the “existing rights of em- ployees covered by this Arrangement to present grievances concerning their wages, hours of work, or conditions of work, individually or through a repre- sentative ... shall be preserved and continued.” Pet. App. 28a. The Court of Appeals then held that pur- suant to Jackson Transit Authority, ATU 1338 may bring a contract action in state court to enforce the 13(c) arrangement that has been allegedly breached by DART. Pet. App. 3la. The Court of Appeals’ holding regarding preemption was explicit: Assuming state law provides that DART, as a governmental entity, is immune from suit, this immunity would obstruct accomplishing and ex- ecuting Congress’s full purposes and objectives under the UMTA. See Geier, 529 U.S. at 882, 120 S.Ct. 1913. The UMTA, as interpreted in Jackson Transit Authority, is clear: state law is to control labor relations between local govern- ments and unionized transit workers, as long as the workers’ collective-bargaining rights are pre- served before a local government receives federal aid. See Jackson Transit Auth., 457 U.S. at 17, 27, 102 S.Ct. 2202. Congress designed section 8 13(c) of the UMTA “as a means to accommodate . state law to collective bargaining.” Although sec- tion 13(c) may be narrowly drafted to minimize its effects on state labor law, Congress’s clear in- tent was to preserve collective-bargaining rights. Where state immunity law would preclude en- forcement of the rights preserved under section 13(c), Congress’ objectives could not be accom- plished. Therefore, state immunity law “is preempted and has no effect.” Pet. App. 3la. DART sought rehearing before the Texas Court of Appeals. On October 31, 2005, DART’s motion for rehearing was denied. Pet. App. 34a. DART appealed to the Supreme Court of Texas. Oral arguments were held on November 17, 2007. On December 19, 2008, the Supreme Court of Texas reversed the Texas Court of Appeals and dismissed the union’s suit based upon Texas governmental! im- munity and the Supreme Court of Texas’ interpreta- tion of Jackson Transit Authority and UMTA. The Texas Supreme Court based its jurisdiction to hear the interlocutory appeal upon its determination that the Texas Court of Appeals’ decision conflicted with this Court’s decision in Jackson Transit Authority. The Texas Supreme Court held that, contrary to the ruling of the appellate court, Jackson Transit Au- thority did not touch upon the issue of federal preemption and Texas governmental immunity law was not preempted by UMTA. Pet. App. 14-15a. In- terpreiing UMTA and Jackson Transit Authority, the Supreme Court of Texas ruled that a 13(c) arrange- ment can meet the requirements of section 13(c) without any availability of judicial enforcement the- reof, and thus, that nothing in UMTA preempts state immunity law. Pet. App. 23a. The Supreme Court of 9 Texas determined that ATU 1338’s mechanism for “enforcing” the parties 13(c) agreement, and general grievance agreements reached pursuant to the par- ties 13(c) agreement, is to “simply file another gen- eral grievance,” and that this is sufficient under UMTA. Pet. App. 23a. REASONS FOR GRANTING THE WRIT I. The Texas Supreme Court Decision Conflicts with the United States Supreme Court Decision in a Manner that Impacts Federal Law A writ of certiorari is important in this case to de- termine whether the decision of the Supreme Court of Texas conflicts with the decision of this Court in Jackson Transit Authority. The Texas Supreme Court decision rests upon its interpretation of the Supremacy Clause, Jackse.. Transit Authority, and UMTA. The Supreme Court of Texas’ opinion re- garding these matters directly conflicts with the trial court decision and the Texas Court of Appeals deci- sion, both of which squarely held that federal preemption and Jackson Transit Authority defeated DART’s plea of state governmental immunity. The Supreme Court of Texas would concede that if the Texas Court of Appeals decision is correct, the deci- sion of the Supreme Court of Texas directly conflicts with this Court’s decision in Jackson Transit Authority. The Texas Supreme Court based its jurisdiction to hear the interlocutory appeal by DART upon the premise that the court of appeals’ decision conflicts with Section 13(c) of UMTA and Jackson Transit Au thority. Pet. App. 14-15a. The Supreme Court of Texas held that it had jurisdiction over the interlocu- 10 tory appeal because it “possesses the power, and thus the duty, to correct a decision of a Court of Civil Ap- peals that conflicts with the ‘supreme law of the land’ as established by Congress and Supreme Court of the United States.” Pet. App. 13-14a. The Supreme Court of Texas acknowledged it has been nearly thirty years since it has invoked its constitutional jurisdic- tion to remove an alleged conflict between a Texas appellate court and the United States Supreme Court. Pet. App. 14a, citing to Eichelberger v. Eichel- berger, 582 S.W.2d 395 (Tex. 1979). The Supreme Court of Texas summarized Jackson Transit Authority and ruled upon the issue of federal preemption by stating: ijn Jackson Transit Authority, the public trans- portation authority in Jackson, Tennessee had a 13(c) arrangement that guaranteed its em- ployees’ collective-bargaining rights, but the au- thority later refused to abide by a collective- bargaining agreement. The union sued the authority in federal court for breach of both the 13(c) arrangement and the collective-bargaining agreement, but the district court dismissed the suit for want of subject-matter jurisdiction. The court of appeals reversed, holding the district court had federal-question jurisdiction because the union’s claim arose under the laws of the United States, and additionally, that section 13(c) implicitly provides for a federal cause of ac- tion. The Supreme Court agreed that the district court had federal-question jurisdiction but held that section 13(c) did not create a federal cause of action for breach of either the 13(c) arrangement or the collective-bargaining agreement. Pet. App. 16a. 11 The Supreme Court of Texas then addressed and rejected the argument of ATU 1338 that had been ac- cepted by the appellate court: ATU 1338 argues that the right to sue a trans- portation authority to enforce its agreements is implicit in the Supreme Court’s opinion. The court of appeals agreed with ATU 1338, but we think both DART’s and ATU 1338’s arguments read far too much into the Supreme Court’s opi- nion. The issue of federal preemption of state immunity law was simply not presented in the case, and we do not think the Supreme Court would have resolved it merely by implication. Even if we were mistaken about the Supreme Court’s intention, we see no way to infer from its opinion what view it might take of the preemption issue. The court of appeals’ decision is in- consistent with Jackson Transit Authority because the court of appeals read the opinion in that case to decide the preemption issue in the present case. Pet. App. 19a (emphasis added). Thus: (1) the Texas court of appeals decided that this Court’s decision in Jackson Transit Authority ruled the union has a right under 13(c) to sue a transportation authority in state court to enforce its agreements and implicitly held that the Supremacy Clause preempted state immun- ity law. (2) The Texas Supreme Court held the oppo- site—that Jackson Transit Authority does not impli- citly hold that state immunity law is preempted when the union brings a 13(c) suit against a transportation authority in state court. The Supreme Court’s opinion in Jackson Transit Authority discussed the Congressional history and intent in the passage of UMTA at great length. The 12 following passages from Jackson Transit Authority are relevant to this petition, and show that the Texas Supreme Court’s decision conflicts with this Court’s holding: . . . Congress was aware that public ownership might threaten existing collective-bargaining rights to unionized transit workers employed by private companies. If for example, state law for- bade collective bargaining by state and local gov- ernment employees, the workers might lose their collective bargaining rights when a private com- pany was acquired by a local government. To prevent federal funds from being used to destroy the collective-bargaining rights of organized workers, Congress included §13(c) in the Act. Section 13(c) requires, as a condition of federal assistance under the Act, that the Secretary of Labor certify that “fair and equitable arrange- ments” have been made “to protect the interest of employees affected by [the] assistance.” The sta- tute lists several protective steps that must be taken before a local government may receive fed- eral aid; among these are the preservation of benefits under existing collective-bargaining agreements and the continuation of collective bargaining rights. 457 U.S. at 17-18 (citations omitted). Because of the importance of the interpretation of §$13(c) for local transit labor relations, we granted certiorari. 457 U.S. at 20. Indeed, since §13(c) contemplates protective ar- rangements between grant recipients and unions as well as subsequent collective-bargaining 13 agreements between those parties, it is reasona- ble to conclude that Congress expected the §13(c) agreement and the collective bargaining agree- ment, like ordinary contracts, to be enforceable by private suit upon breach. 457 U.S. at 20-21. The Court plainly stated that a union may pursue (not just file) a suit in state court to enforce 13(c) ar- rangements and collective bargaining agreements created pursuant to those arrangements, by stating in text: “The legislative history indicates that Con- gress intended those contracts to be governed by state law applied in state courts.” 457 U.S. at 29. The Court added: The union, of course, can pursue a contract action in state court. In addition, the Federal Government can respond by threatening to withhold additional financial assistance. Id., n.13 (emphasis added). Concurring justices Pow- ell and O’Connor added opinions that cut completely against the reasoning of the Supreme Court of Texas—that Jackson Transit Authority gives a right to sue in state court, but does not hint that the suit may be pursued in the face of a claim of governmen- tal immunity: Congress here provided for the making of con- tracts that it must have intended to be enforced. 457 U.S. at 30 (Powell and O’Connor, concurring). This Court, in Jackson Transit Authority, held that in passing UMTA, Congress intended that private parties to §13(c) protective arrangements could “of course” sue in state court to enforce the §13(c) ar- rangements and collective bargaining contracts reached pursuant to the §13(c) arrangement. The 14 Supreme Court of Texas, in disagreeing with the trial court and the unanimous decision of the Fifth Dis- trict Court of Appeals, has ruled that Jackson Transit Authority made no such implicit holding and that the union’s suit must be dismissed outright due to go- vernmental immunity. The Texas Supreme Court opined that this Court in Jackson Transit would not have resolved the immunity issue by implication and added emphatically “we see no way to infer from its opinion what view it might take of the preemption issue.” Pet. App. 19a. If Appellant, the district court and the appeal courts in Texas are right, and Jackson Transit necessarily implies that immunity is over- come when it states that “[t}he union ‘of course’ can pursue a contract action in state court,” there is a di- rect and important conflict between this Court’s holding in Jackson Transit Authority and the Texas Supreme Court decision in this case. Granting the writ of certiorari is appropriate. II. In the Alternative, if Jackson Transit Authority Did Not by Implication Hold That State Immunity Law Is Preempted When a Union Pursues a Breach of Contract Action Over a 13(c) Matter in State Court, the Unresolved Issue Is an Important Federal Question that Should be Settled by the Supreme Court and the Holding of the Supreme Court of Texas is Repugnant to the Constitution and Laws of the United States. The Texas Supreme Court opines that while the Jackson Transit Authority decision stated that a un- ion could, “of course, pursue a contract action in state court,” this Court by implication offered that it might 15 permit a public transit company to plead immunity so the suit would be summarily dismissed. A. This is an Important Federal Question That the Court Should Settle If the Supreme Court of Texas correctly held that Jackson Transit Authority did not provide unions the right to sue in state court (unfettered by governmen- tal immunity) for breach of a 13(c) arrangement and the Resolution Agreement reached pursuant to the 13(c) arrangement, a writ of certiorari is fully appro- priate. This Court should determine whether Con- gress intended for parties to §13(c) arrangements to have enforceable rights somewhere. Did Congress mean for the “right” to sue in state court to be a worthless Catch-22, where the union’s suit would be summarily dismissed due to state court immunity law? This Court should determine whether 13(c) ar- rangements and agreements reached pursuant to those arrangements can both be filed and considered on the merits in state court—whether the Supremacy Clause of the Unites States Constitution preempts any state governmental immunity laws for such suits. The impact of the Supreme Court of Texas’ holding in this matter is likely to be felt in every state within the nation that has governmental transit authorities that receive federal funding pursuant to UMTA. In 2007, the Federal Transit Authority (FTA) obligated approximately $10.5 billion dollars in federal funds to states and territories for transit needs. All fifty states received federal funding through the FTA for transit.” Texas ranked 6th among states receiving A ti ~ ey * For a state-by-state breakdown of 2007 FTA funding obligations, see: http://www.fta.dot.gov/documents/TABLE 6 OBLIGATIONS_BY_ PROGRAMS _AND_STATES.xls 16 federal FTA transit funds, and received approx- imately $486.6 million dollars in 2007. Even if states do not currently have governmental immunity provisions that mirror Texas law, there is nothing to prevent state governments from enacting similar laws. The Supreme Court of Texas defines the terms of 13(c) arrangements for governmental enti- ties in Texas. Public transit authorities in Texas may enter into 13(c) arrangements to get federal funds and avoid enforcement of those arrangements and the agreements that flow from them by invoking state law governmental immunity. Logic indicates that other states will want the Texas deal. The in- tent of Congress is at stake. B. The Holding of the Supreme Court of Texas is Repugnant to the Constitution and Laws of the United States The Texas Supreme Court has held that while Jackson Transit Authority says that unions have the right to sue transit authorities in state court to re- medy breaches of Section13(c) arrangements and agreements reached pursuant to Section 13(c) ar- rangements, Jackson Transit Authority did not impli- citly hold that unions may maintain their suits if faced with a plea of immunity under state law. The Texas Supreme Court concluded that despite Jackson Transit Authority and UMTA, there is no preemption of Texas state laws that prevent governmental agen- cies such as DART, from being sued for breach of con- tract. Therefore, in Texas, if a transit authority such as DART breaches a 13(c) arrangement or an agree- ment reached between the parties through the meet and confer process created by and dictated in the 13(c) arrangement, the union can sue the public ent- ity, but the suit will be summarily dismissed based 17 upon Texas governmental immunity law. Whether read broadly where immunity bars all state court suits by unions to enforce 13(c) rights or more nar- rowly to bar suits as to some 13(c) claims, the ruling is repugnant to the Constitution and laws of the United States. The first reported decision that interprets the deci- sion of the Texas Supreme Court reads it as a sweeping judicial pronouncement that immunity bars any suit against the public entity to enforce Section 13(c) rights. Senior United States District Judge A. Joe Fish did not consider whether the Texas Supreme Court “got it right,” and stated: One might conclude that in order to enforce [13c] arrangements, the transit authority must be subject to suit. The Texas Supreme Court, how- ever, has already addressed this exact issue in Dallas Area Rapid Transit v. Amalgamated Transit Union Local No. 1338, ____ S.W.3d ____, 2008 WL 5266379, *7 (Tex. Dec. 19, 2008). There, the plaintiff argued that “by preventing suit to enforce the [arrangement], state immun- ity law stands as an obstacle to achieving the full purpose of section 13(c) to protect transit em- ployees’ interest.” Jd. at *8. The court disagreed, holding that transit employees can protect their interest through an administrative process. 7d. Thus, where the section 13(c) arrangement pro- vides for an administrative process to enforce the details of that arrangement, the state agency remains immune from suit. 7d. at 9. Lindsey v. Dallas Area Rapid Transit, et al., 2009 WL 453769 (N.D. Tex. 2009)Civ. Action No. 3:08ev 1096, Feb. 23, 2009). 18 A close reading of the Texas Supreme Court deci- sion suggests a nuanced (and implausible®) holding, based on the perception of the Texas Supreme Court of the intent of Congress, that some suits against a public entity to enforce Section 13(c) rights would not be barred by immunity. In Part III of its decision, the Texas Supreme Court appears to accept DART’s concession that DART would not be immune from suit by ATU 1338 “to require that the grievance pro- cedures laid out in the Arrangement be followed .. . lilf for example DART refused to provide the hearing called for, or to engage in the prescribed fact-finding process, DART acknowledges that ATU 1338 could sue to enforce the Arrangement.” Pet. App. 20a. The Texas Supreme Court then discusses the intent of Congress, opining “section 13(c) requires only that a transportation authority make arrangements that ‘the Secretary of Labor concludes are fair and equita- ble.” Pet. App. 21a. The general grievance scheme is designed to foster labor peace and to encourage and assist the parties to reach agreements, even though * It seems implausible that DART would be immune from some 13(c) suits by the union and not others. One would think DART is either entirely immune, or that it is not immune; that there either is or is not preemption. But the Texas Supreme Court decision suggests that DART would not be immune from suit if DART refused to meet with the union, despite being required to do so by the 13(c) arrangement’s required general grievance process. The Texas Supreme Court then also implausibly (in light of the purpose of Section 13(c)) holds that where the process “works” and the parties reach an agreement as a result of the meetings, the Union may not sue to enforce the agreement. In other words, because DART will go through the motions and meet with the union and because the union can engage in a futile series of meetings, agreements reached, breaches of agreements, and new grievances, DART is immune from suit. 19 absent an agreement, DART has the final say. The end result of the general grievance scheme is either: (1) an agreement, or (2) no agreement and DART has the final say. The Texas Supreme Court missed the point of the general grievance scheme. Instead, it observed (as if agreement would not happen) that the “end result” of the fact-finding process is a non- binding report and recommendation. Pet. App. 21a. Next, the Texas Supreme Court delves into the me- rits of the union’s suit against DART, interpreting the Grievance Resolution to be non-binding, so that a violation of the agreement by DART merely provides as a “remedy” that ATU 1338 may file another gen- eral grievance ahead of schedule.* Pet. App. 23a. The Texas Supreme Court rules that judicial en- forcement of the agreement reached via the general grievance process is not protected from immunity by preemption because a satisfactory arrangement exists so long as the union has a right to file another griev- ance, even though any agreement reached pursuant to the new grievance will also be unenforceable. /d. * The Texas Supreme Court misstates the language of the Resolution Agreement—that if DART fails to abide by the agreement “the consequence would only be to relieve ATU 1338 of a commitment to a moratorium on filing general grievances.” Pet. App. 22a, (emphasis added). This is a merits issue, and ATU 1338's merits position is that the language addressed (which does not include the word “only”) relieves the union of the moratorium commitment, but that judicial enforcement under Jackson Transit Authority is also available. On the merits (1.e., after the suit proceeds despite a claim of immunity), DART can point to language about DART’s position that it cannot not enter into contracts and the union can point to the fact that the language does not state the union agrees with DART’s position and other language that supports an enforceable contract. 20 The Texas Supreme Court finds that Congress’ in- tent is met by a circular process under which the un- ion can keep filing general grievances, keep getting “agreements,” and DART can break any of those agreements with impunity (due to immunity). The Texas Supreme Court finds this is “fair and equita- ble” since the union can always file another griev- ance. Building on its earlier finding that Jackson Transit Authority does not implicitly permit a union both to sue and to maintain the suit despite a plea of governmental immunity, the Texas Supreme Court holds: “Given that an arrangement can meet the re- quirements of section 13(c) without providing for judicial enforcement of grievance resolutions, nothing in the statute implicitly preempts state immunity law.” Jd. This conclusion would provide as “fair and equitable” a cynical system where agreements mean nothing but false promises and the “remedy” is to file another futile grievance. Instead of fostering labor peace and agreements, the process the Texas Su- preme Court finds adequate in place of judicial en- forcement would make the general grievance process a frustrating and time-consuming hoax. Agreements would not be worth pursuing. Talks would not be worth conducting. Agreements would not be agree- ments. Such a holding misstates the intent of Con- gress and is repugnant to UMTA and the Supremacy Clause. 21 CONCLUSION For all the reasons stated herein, the Petition for Writ of Certiorari should be granted. Respectfully submitted, HAL K. GILLESPIE * JOSEPH H. GILLESPIE GILLESPIE, ROZEN, WATSKY & JONES, P.C. 3402 Oak Grove Avenue, Suite 200 Dallas, Texas 75204 * Counsel of Record (214) 720-2009 March 19, 2009 APPENDIX la APPENDIX A SUPREME COURT OF TEXAS. No. 06-0034 DALLAS AREA RAPID TRANSIT, Petitioner, Vv. AMALGAMATED TRANSIT UNION LOCAL No. 1338, Respondent. Argued Nov. 14, 2007. Decided Dec. 19, 2008. Justice HECHT delivered the opinion of the Court. Section 13(c) of the federal Urban Mass Transit Act of 1964 (the “UMTA”, now the Federal Transit Act) conditions a public transportation authority’s receipt of federal financial assistance on “arrangements the Secretary of Labor concludes are fair and equitable” to protect “the interests of employees affected by the assistance”.’ Such arrangements “shall include provi- sions that may be necessary for .. . the preservation ' Pub.L. No. 88-365, § 10(c), 78 Stat. 302, 307, redesignated as § 13(c) by Pub.L. No. 89-562, § 2, 80 Stat. 715, 716, as amended, now codified at 49 U.S.C. § 5333(b) (2006) (“As a condition of financial assistance under .. . this title, the interests of em- ployees affected by the assistance shall be protected under ar- rangements the Secretary of Labor concludes are fair and equit- able. The agreement granting the assistance . . . shall specify the arrangements.”). 2a of rights, privileges, and benefits . . . [and] the protec- tion of individual employees against a worsening of their positions related to employment”.” In this case, a public transportation authority and its employees’ union, operating under a 13(c) ar- rangement, resolved a general grievance over wages and benefits. The authority did not adhere to the res- olution, and the union sued for breach of contract. The lower courts concluded that the authority is not immune from suit.*? The issue before us is whether section 13(c) preempts an authority’s immunity from suit under state law. We hold that immunity is not preempted and that the union’s recourse is to the procedures approved in the 13(c) arrangement. Ac- cordingly, we reverse the judgment of the court of ap- peals and dismiss the case. I Petitioner Dallas Area Rapid Transit is a regional public transportation authority* that performs only 2 Id. § 5333(b)(2) (‘Arrangements under this subsection shall include provisions that may be necessary for-(A) the preserva- tion of rights, privileges, and benefits (including continuation of pension rights and benefits) under existing collective bargaining agreements or otherwise; (B) the continuation of collective bar- gaining rights; (C) the protection of individual employees against a worsening of their positions related to employment; (D) assurances of employment to employees of acquired public transportation systems; (EF) assurances of priority of reemploy- ment of employees whose employment is ended or who are laid off; and (F) paid training or retraining programs.”). * 173 S.W.3d 896, 900 (Tex.App.-Dallas 2005). * See TEX. TRANSP. CODE 8&§ 452.001-.720. 3a governmental functions® and is immune from suit un- der Texas law.® Created in 1983 and funded with a one-cent sales tax,’ DART assumed the operations of the Dallas Transit System, which the City of Dallas had acquired in 1963 from the privately owned Dallas Transit Company.® Company employees, and later System employees, were represented by Amalga- mated Transit Union Local No. 1338, which now represents DART employees. ATU 1338 engaged in collective bargaining with the Company,” but Texas law prohibits a state political subdivision from collec- tive bargaining with public employees.*® This prohi- ° Id. § 452.052(c) (‘An authority is a governmental unit... and the operations of the authority are not proprietary functions for any purpose... .”). ® See Guillory v. Port of Houston Auth., 845 S.W.2d 812, 812- 815 (Tex.1993) (treating a port authority with only governmen- tal functions as a political subdivision of the State for purposes of governmental immunity). ? See DART HISTORY, DALLAS AREA RAPID TRANSIT, http://www.dart.org/about/history.asp (last visited October 31, 2008). 8 See Dallas Area Rapid Transit v. Plummer, 841 S.W.2d 870, 872 (Tex.App.-Dallas 1992, writ denied), disapproved in part on other grounds by Texas Educ. Agency v. Leeper, 893 S.W.2d 432, 445-446, n. 17 (Tex. 1994); Amalgamated Transit Union Local 1338 v. Dallas Public Transit Bd., 430 S.W.2d 107, 109 (Tex.Civ.App.-Dallas 1968, writ refd n.r.e.), cert. denied, 396 U.S. 838, 90 S.Ct. 99, 24 L.Ed.2d 89 (1969). ° See Local 1338, 430 S.W.2d at 109-110. 10 TEX. GOV’T CODE § 617.002(“(a) An official sf the state or of a political subdivision of the state may not enter into a collec- tive bargaining contract with a labor organization regarding wages, hours, or conditions of employment of public employees. (b) A contract entered into in violation of Subsection (a) is void. (c) An official of the state or of a political subdivision of the state may not recognize a labor organization as the bargaining agent 4a bition has been held to apply to the System,’ DART,” and their employees, and ATU 1338 does not chal- lenge its application here.’* But public employees may “present grievances concerning their wages, hours of employment, or conditions of work either in- dividually or through a representative that does not claim the right to strike,”“* and ATU 1338 has pre- sented grievances for DART employees. DART receives federal financial assistance condi- tioned on a 13(c) Arrangement that was negotiated with ATU 1338 and approved by the Secretary of La- bor on September 30, 1991. Attachment B to the 1991 Arrangement sets out “general grievance procedures for a group of public employees.”), formerly TEX.REV.CIV. STAT. ANN. art. 5154c, first enacted by Act of April 17, 1947, 50th Leg., R.S., ch. 135, 1947 Tex. Gen. Laws 231. " Local 1338, 430 S.W.2d at 113-114. 12 Stephens v. Dallas Area Rapid Transit, 50 S.W.3d 621, 632- 634 (Tex.App.-Dallas 2001). 3 Similar governmental entities are treated as state political subdivisions. See TEX. GOV'T CODE § 791.003(5) (“In this chapter: .. . ‘Political subdivision’ includes any corporate and political entity organized under state law.”); TEX. LOCAL GOVT CODE § 335.075(a) (referring to “a political subdivision, including a metropolitan rapid transit authority created under Chapter 451, Transportation Code”); id. § 391.002(1) (“In this chapter: .. . ‘Governmental unit’ means a[n] .. . authority ... or other political subdivision of the state.”); TEX. NAT. RES. CODE § 11.082(d)(4) (“In this section: . . . ‘Political subdivision’ means a .. . special-purpose district or authority.”); TEX. TRANSP. CODE § 228.251(2) (“In this subchapter: . . . ‘Local governmental entity’ means a political subdivision of the state, including .. . a transportation corporation created under Chap- ter 431.”); id. § 366.003(8) (same); id. § 370.003(8) (same); id. 370.032(a) (*[A regional mobility authority] is a body politic and corporate and a political subdivision of this state.”). '* TEX. GOWT CODE § 617.005. 5a ... for the purpose of giving an employee, individually or through such employee’s representative, the op- portunity to present grievances and appeals regard- ing establishment of, or failure to establish, specified wages, hours or conditions of work”. For our pur- poses, those procedures may be summarized as follows: General grievances must be presented in writing to the human resources department head, who must meet with the employee or representative, provide a full hearing and review, and issue a written decision. The employee or representative may appeal to the executive director or invoke a fact-finding process. The fact-finding process is conducted by a three- member panel. One member is selected by each side, and the third is selected from a list of neu- trals. After gathering facts, conducting hearings, and considering the opposing positions, the panel must issue a written report, making recommen- dations on unresolved issues. If the panel is unanimous, “the recommendations shall be deemed agreed upon as a final resolution of the issues submitted, except as otherwise modified by the parties’ mutual agreement.” But either partisan member of the panel may dissent. The panel must publish its findings and recom- mendations, and any dissents, in the local media. “(T]he fact-finding report and recommendations shall be advisory only” and shall not be binding on either party." ** The clause adding that the report and recommendations “shall not be binding” appears in DART’s Hourly Employment Manual. 6a The provisions of Attachment B, with minor changes, were included as section 8.10 of DART’s Hourly Employment Manual. In April 2001, ATU 13388 filed a general group grievance on behalf of DART employees seeking wage increases and better benefits. The grievance did not result in a fact-finding panel report under the At- tachment B procedures; instead, DART and ATU 1338 signed a “General Grievance Resolution” in June 2002. The Resolution provided, among other things, that hourly employees would receive three annual 4% pay increases effective October 2001, Oc- tober 2002, and October 2003. The Resolution stated that it “constitute[d] a final resolution to the issues raised in the General Grievance”, barred ATU 1338 from filing another general grievance “concerning terms and conditions of employment, specified wages, hours, and conditions of work” for three years, and stated that “DART agrees that for the three year pe- riod it will not make any unilateral changes to DART’s Hourly Employment Manual except. for those issues remaining open herein.” But the Resolution also contained important reservations under the heading, “Management Rights”: 1. DART, at its sole discretion, possesses the right in accordance with applicable laws, to manage all operations, including the direction of the working force and the right to plan, direct and control the operation of all equipment and other property of DART, except as modified by Section 8.10 of the DART Hourly Employment Manual and Section 617.005 of the Texas Gov- ernment Code and DART’s 13(c) Capital Ar- rangement certified by the Department of Labor on September 30, 1991 pursuant to USC § 5333\(b), 7a if applicable . .. . [Nothing herein changes DART’s position that it has a unilateral right to establish employment conditions, set wages, hours of employment or conditions of work. In the event that DART makes any unilateral change except for issues remaining open herein during the term of this Resolution, such change relieves Local 1338 of its commitment not to file a General Grievance from October 1, 2001 to September 30, 2004. 2. Matters of inherent managerial policy are re- served exclusively to DART under law. These in- clude but shall not be limited to such areas of discretion or policy as the functions and pro- grams of DART, standards of service, its overall budget, utilization of technology, the organiza- tional structure and selection and direction of personnel. 3. The listing of specific rights in this article is not intended to be, nor should be considered, re- strictive or a waiver of any rights of management not listed and not specifically surrendered herein whether or not such rights have been exercised by DART in the past. 4. DART intends to abide by the provisions herein, and to resolve the general grievance as herein stated. By resolving this general griev- ance, DART does not intend to waive its legal obligations, including those set forth in its 13(c) Arrangement and its position that it may not le- gally enter into a legally binding and bilateral agreement with a labor organization regarding wages, hours, or conditions of employment of public employees. This general grievance is therefore resolved subject to all the foregoing li- mitations. 8a DART gave its employees the pay raises in 2001 and 2002, but not in 2003, and it unilaterally reduced other benefits, asserting that declining sales tax rev- enues required cost-saving measures. ATU 1338 sued for breach of contract based on DART’s failure to comply with the 2002 Resolution. ATU 1338 sought money damages and injunctive relief. DART filed a plea to the jurisdiction claiming governmental im- munity, which the trial court denied. On DART’s in- terlocutory appeal, the court of appeals affirmed, holding that section 13(c) of the UMTA, as inter- preted by the United States Supreme Court in Jack- son Transit Authority v. Local Div. 1285, Amalga- mated Transit Union,’* preempted DART’s immunity from ATU 1338's suit: Assuming state law provides that DART, as a go- vernmental entity, is immune from suit, this im- munity would obstruct accomplishing and executing Congress’s full purposes and objectives under the UMTA. The UMTA, as interpreted in Jackson Transit Authority, is clear: state law is to control labor relations between local governments and unionized transit workers, as long as the workers’ collective-bargaining rights are preserved before a local government receives federal aid. Congress designed section 13(c) of the UMTA “as a means to accommodate state law to collective bargaining.” Jackson Transit Auth., 457 U.S. at 27, 102 S.Ct. 2202, 72 L.Ed.2d 639. Although section 13(c) may be narrowly drafted to minimize its effects on state labor law, Congress’s clear intent was to preserve collective- bargaining rights. Where state immunity law would preclude enforcement of the _ rights '6 457 U.S. 15, 102 S.Ct. 2202, 72 L.Ed.2d 639 (1982). 9a preserved under section 13(c), Congress’s objectives could not be accomplished. Therefore, state immunity law “is preempted and has no effect.”"" We granted DART’s petition for review. '® II We begin with ATU 1338’s argument that we lack jurisdiction over this interlocutory appeal. DART con- tends that we have jurisdiction because the court of appeals’ decision conflicts with section 13(c) and Jackson Transit Authority. We first consider the ex- tent of our jurisdiction and then how to apply it in this case. A Without an intermediate appellate court in Texas, this Court’s workload soon became unmanageable.” The Constitution of 1876 limited the Supreme Court’s appellate jurisdiction to civil cases and created a court of appeals for criminal cases and civil cases from county courts” but this did little to alleviate the burden.*' To preserve a right of appeal that was both broad and effective, constitutional amendments 17 173 S.W.3d 896, 900 (Tex.App.-Dallas 2005) (citations omitted). 8 50 Tex. Sup.Ct. J. 929 (June 29, 2007). See 1 GEORGE D. BRADEN ET' AL., THE CONSTITU- TION OF THE STATE OF TEXAS: AN ANNOTATED AND COMPARATIVE ANALYSIS 399 (1977). *° TEX. CONST. art. V, §§ 3, 6 (1876). 2! See 1 BRADEN, supra note 19, at 365 (“Despite the trans- fer of all criminal jurisdiction and some civil cases to the court of appeals in 1876, the supreme court’s docket remained over- crowded.”). 10a adopted in 1891 restructured the judiciary.** The Su- preme Court’s jurisdiction remained limited to civil cases.” The court of appeals became the Court of Criminal Appeals, with jurisdiction over criminal cases only.** The Legislature was required to divide the State into separate judicial districts and establish in each district a court of civil appeals with appellate jurisdiction over all civil cases in that district,” the- reby placing appellate courts closer to the litigants and relieving the burden on the Supreme Court. To ensure uniformity in the development of the civil law, the 1891 constitutional amendments gave the Su- preme Court appellate jurisdiction over “questions of law arising in the cases in the Courts of Civil Appeals in which the Judges of any Court of Civil Appeals may disagree, or where the several Court of Civil Ap- peals may hold differently on the same question of law”,”° The enabling legislation enacted in 1892 reflected this constitutional priority while shifting the burden of appellate caseloads to the intermediate courts. The Supreme Court’s jurisdiction was limited to cases in which the Courts of Civil Appeals had rendered a fi- nal judgment, as opposed to remanding for further proceedings, but there were exceptions to that limita- tion for cases in which Supreme Court review even at an intermediate stage was important. Three excep- 2 Id. at 399 (“The supreme court was falling so far behind that either the right to appeal had to be severely curtailed or the system had to be radically revised.”). “’ TEX. CONST. art. V, § 3 (1891). *4 Id. §§ 4-5, *° Id.§ 6. *Id.§3 lla tions were for “[clases in which a civil court of ap- peals overrules its own decisions or the decision of another court of civil appeals or of the supreme court”, “{clases in which the judges of any court of civil appeals may disagree”, and “[c]ases in which any two of the courts of civil appeals may hold differently on the same question of law”.?” As we observed in 1895, these exceptions “were inserted for the purpose of enabling this court, upon the first opportunity, to settle questions of law upon which conflicting opi- nions were held by any of the courts having appellate jurisdiction,-so far, at least, as the opinion of this court can settle such questions”.** Obviously, allow- ing conflicts in the law among the Courts of Civil Ap- peals to go unresolved could generate confusion that would offset the gains in efficiency those courts were designed to accomplish. The Supreme Court’s juris- diction was enlarged to provide for resolution of such conflicts. In 1913, the Court’s jurisdiction was ex- tended to all cases from the Courts of Civil Appeals, even if remanded,” and that remains the law.” The 1892 legislation made decisions in a few types of cases final in the Courts of Civil Appeals, irrespec- tive of conflicts among the courts. These were boun- 27 Act approved April 13, 1892, 22nd Leg., 1st C.S., ch. 14, § 1, 1892 Tex. Gen. Laws 19, 20, reprinted in 10 H.P.N. Gammel, The Laws of Texas 1822-1897, at 383, 384 (Austin, Gammel Book Co. 1898), formerly TEX.REV.CIV. STAT. ANN art. 1728 (1925). *8 Sturgis Nat'l Bank v. Smyth, 87 Tex. 649, 30 S.W. 898, 898 (1895) (emphasis added). 29 Act approved March 28, 1913, 33rd Leg., R.S., ch. 55, § 1, 1913 Tex. Gen. Laws 107, 107. %° Act approved March 28, 1913, 33rd Leg., R.S., ch. 55, § 1, 1913 Tex. Gen. Laws 107,107. 12a dary and election disputes, slander and divorce cases, interlocutory appeals, and cases within the constitu- tional county courts’ jurisdiction except probate mat- ters and cases involving revenue laws or the validity of a statute.*’ But by 1953, the Legislature had con- cluded that the Supreme Court’s jurisdiction should extend to all cases “in which the judges of the Courts of Civil Appeals may disagree upon any question of law material to the decision, or in which one of the Courts of Civil Appeals holds differently from a prior decision of another Court of Civil Appeals or of the Supreme Court upon a question of law”. That is the current law.” Although the statutes governing this Court’s juris- diction have specifically addressed conflicts between our intermediate appellate courts and this Court, none has addressed conflicts between those courts and the United States Supreme Court. Such a conflict was presented in a 1979 divorce case, Eichelberger v. 3! Act approved April 13, 1892, 22nd Leg., Ist C.S., ch. 15, § 5, 1892 Tex. Gen. Laws 25, 26, reprinted in 10 H.P.N. Gammel, The Laws of Texas 1822-1897, at 389, 390 (Austin, Gammel Book Co. 1898), formerly TEX.REV.CIV. STAT. ANN art. 1821 (1925). % Act of May 19, 1953, 53rd Leg., R.S., ch. 424, § 2, 1953 Tex. Gen. Laws 1026, 1027; see State v. Wynn, 157 Tex. 200, 301 S.W.2d 76, 77-78 (1957) (per curiam); Cone v. Cone, 153 Tex. 149, 266 S.W.2d 860, 861 (1954) (per curiam). 33 TEX. GOVT CODE § 22.225(c). Pursuant to a constitu- tional amendment adopted in a 1980 election, the courts of civil appeals were renamed courts of appeals, and given criminal ju- risdiction in 1981. TEX. CONST. art. V § 6; Tex. S.J. Res. 36, 66th Leg., R.S., 8§ 5, 7, 1979 Tex. Gen. Laws 3223, 3224-3225, 3226 (effective Sept. 1, 1981); Act of June 1, 1981, 67th Leg., R.S., ch. 291, §§ 101-102, 149, 1981 Tex. Gen. Laws 761, 801- 802, 820 (amending TEX.CODE CRIM. PROC. arts. 4.01, 4.03, effective Sept. 1, 1981). 13a Eichelberger.** At that time, decisions in divorce cases were still final in the courts of civil appeals ab- sent conflicts among Texas courts.* The court of civil appeals had held that federal law did not preempt a divorce court’s division of future railroad retirement benefits between spouses.*° While the case was pend- ing in this Court, the United States Supreme Court reached the opposite conclusion.*’ Although there was no statutory basis for this Court to take jurisdic- tion of the case, we concluded that we were constitu- tionally required to do so: We hold that under Article V, Sections 1°° and 3,°° of the Constitution of Texas, the Supreme Court of Texas possesses the power, and thus the duty, to correct a decision of a Court of Civil Ap- peals that conflicts with the “supreme law of the ** 582 S.W.2d 395 (Tex.1979). % This finality was removed in 1987. Act of May 29, 1987, 70th Leg., R.S., ch. 1106, § 2, 1987 Tex. Gen. Laws 3804, 3804. °° Eichelberger v. Ejichelberger, 557 S.W.2d 587, 589 (Tex.Civ.App.-Waco 1977), rev'd and rendered in part and affd in part, 582 S.W.2d 395 (Tex.1979). 7 Hisquierdo v. Hisquierdo, 439 U.S. 572, 585-586, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979). 33 TEX. CONST. art. V, § 1 states in part: “The judicial power of this State shall be vested in one Supreme Court, in one Court of Criminal Appeals, in Courts of Appeals, in District Courts, in County Courts, in Commissioners Courts, in Courts of Justices of the Peace, and in such other courts as may be provided by law.” 9 Id. art. V, § 3 states in part: “The Supreme Court shall exercise the judicial power of the state except as otherwise pro- vided in this Constitution ... . Its appellate jurisdiction shall be final and shall extend to all cases except in criminal law matters and as otherwise provided in this Constitution or by law.” 14a land”*® as established by the Congress and Su- preme Court of the United States. Consistent with the Supreme Court’s decision, we reversed the judgment of the court of civil appeals in part and rendered judgment. ** In the nearly thirty years since we decided Lichel- berger, we have not invoked our constitutional juris- diction to remove a conflict between a Texas appel- late court and the United States Supreme Court,” but we adhere to our holding that this Court has such jurisdiction. From 1892 to 1953, the decisions of the courts of civil appeals were final in some cases and not subject to this Court’s review, but this Court has never lacked jurisdiction to prevent an intermediate appellate court from conflicting with one of this Court’s decisions.** It is fundamental to the very structure of our appellate system that this Court’s decisions be binding on the lower courts.*® We have * U.S. CONST. art. VI, cl. 2 (“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof .. . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwith- standing.”). *! Richelberger, 582 S.W.2d at 397. 2 Td. at 403. *° Cf. County of Dallas v. Sempe, 262 S.W.3d 315, 315-316 (Tex.2008) (per curiam) (concluding that the court of appeals’ decision did not conflict with a decision of the United States Su- preme Court). * Even if appellate jurisdiction were restricted, we have noted that such a conflict could be corrected by writ of manda- mus. State v. Wynn, 157 Tex. 200, 301 S.W.2d 76, 78 (1957) (per curiam). * In re K.M.S., 91 S.W.3d 331, 331 (Tex.2002) (per curiam) (“[I}n reaching their conclusions, courts of appeals are not free 15a no less authority to ensure that the lower courts fol- lows the United States Supreme Court. Nor should our holding in Eichelberger apply with any less force in interlocutory appeals.*® On the con- trary, the fact that provision has been made for an interlocutory appeal indicates that the Legislature has determined that appellate review before a final judgment is important. It is surely no less important when a court of appeals’ decision conflicts, not with another court of appeals’ decision or a decision of this Court, but with a decision of the United States Su- preme Court. Accordingly, we conclude that we have jurisdiction over this case if the court of appeals’s decision con- flicts with the United States Supreme Court’s deci- sion in Jackson Transit Authority. B We turn, then, to the question whether such a con- flict exists. A court of appeals holds differently from this Court “when there is inconsistency in their re- spective decisions that should be clarified to remove unnecessary uncertainty in the law and unfairness to litigants.”*” We use this same standard in determin- ing whether the court of appeals in this case has held differently from the United States Supreme Court. to disregard pronouncements from this Court .... ”); Lofton uv. Texas Brine Corp., 777 S.W.2d 384, 386 (Tex.1989) (“This court need not defend its opinions from criticism from courts of ap- peals; rather they must follow this court’s pronouncements.”). *© Cf. In re H. V., 252 S.W.3d 319, 323 n. 26 (Tex.2008) (ex- pressly refusing to reach the issue). *? TEX. GOV'T CODE § 22.001 (e). 16a In Jackson Transit Authority, the public transpor- tation authority in Jackson, Tennessee had a 13(c) arrangement that guaranteed its employees’ collec- tive-bargaining rights, but the authority later refused to abide by a collective-bargaining agreement.* The union sued the authority in federal court for breach of both the 13(c) arrangement and the collective-bar- gaining agreement, but the district court dismissed the suit for want of subject-matter jurisdiction.*” The court of appeals reversed, holding that the district court had federal-question jurisdiction” because the union’s claim arose under the laws of the United States, and additionally, that section 13(c) implicitly provides for a federal cause of action.*’ The Supreme Court agreed that the district court had federal- question jurisdiction” but held that section 13(c) did not create a federal cause of action for breach of ei- ther the 13(c) arrangement or the _ collective- bargaining agreement.” Under Tennessee law, the Jackson Transit Au- thority was authorized to enter into collective- *8 457 U.S. 15, 18-19, 102 S.Ct. 2202, 72 L.Ed.2d 639 (1982). The authority contended that the union’s agreement was with the authority’s former manager, not with the authority itself. Id. at 19 n. 3, 102 S.Ct. 2202; see Local Div. 1285, Amalgamated Transit Union v. Jackson Transit Auth., 1990 Tenn.App. LEXIS 901, at *5-*9, 1990 WL 210310, at *2-*4 (Tenn.Ct.App. Dec. 26, 1990). # 457 US. at 19, 102 S.Ct. 2202; 447 F.Supp. 88, 93-95 (W.D.Tenn.1977). °° 28 U.S.C. § 1331 (2006). *! 457 U.S. at 19-20, 102 S.Ct. 2202; 650 F.2d 1379, 1383 (6th Cir.1981). 52 457 U.S. at 21 n. 6,102 S.Ct. 2202. 53 Id. at 29, 102 S.Ct. 2202. 17a bargaining agreements with its employees at the time its dispute with the union arose,“ and the authority did not contend that it was immune from suit to enforce its agreements. Thus, the Supreme Court was not confronted wi.: any issue of federal preemption of state governmental immunity. But DART and ATU 1338 argue that passages in the Supreme Court’s opinion indicate its views on the subject. As DART points out, the Supreme Court emphasized that Congress intended section 13(c) arrangements and agreements under them to be governed by state law, not federal law: A consistent theme runs throughout the consid- eration of § 13(c): Congress intended that labor relations between transit workers and local gov- ernments would be controlled by state law.” * * * Thus, Congress made it absolutely clear that it did not intend to create a body of federal law applicable to labor relations between local governmental entities and transit workers. Section 13(c) would not supersede state law, it would leave intact the exclusion of local government employers from the National Labor Relations Act, and state courts would retain jurisdiction to determine the application of state policy to local government transit labor relations. ** See TENN.CODE ANN. §§ 7-56-101 to -109. Prior to 1971, when these statutes were enacted, one court had held in Weak- ley County Mun. Elec. Sys. v. Vick, 43 Tenn.App. 524, 309 S.W.2d 792 (1957), that a governmental entity could not engage in collective bargaining with its employees. See Local Div. 1285, 1990 Tenn.App. LEXIS 901, at *4, 1990 WL 210310, at *1. *5 457 U.S. at 24, 102 S.Ct. 2202. 18a Congress intended that § 13(c) would be an important tool to protect the _ collective- bargaining rights of transit workers, by ensuring that state law preserved their rights before federal aid could be used to convert private companies into public entities. But Congress designed § 13(c) as a means to accommodate state law to collective bargaining, not as a means to substitute a federal law of collective bargaining for state labor law.”® DART argues that federal law should not preempt state immunity law any more than state labor law. But as ATU 1338 points out, other passages contem- plate state-court actions to enforce section 13(c) ar- rangements and agreements under them: Indeed, since § 13(c) contemplates protective ar- rangements between grant recipients and unions as well as subsequent collective-bargaining agreements between those parties, it is reasona- ble to conclude that Congress expected the § 13(c) agreement and the collective-bargaining agree- ment, like ordinary contracts, to be enforceable by private suit upon abreach.... | The issue, then, is not whether Congress in- tended the union to be able to bring contract ac- tions for breaches of the two contracts, but whether Congress intended such contract actions to set forth federal, rather than state, claims.*” * * * Given this explicit legislative history, we cannot read § 13(c) to create federal causes of action for °° Id. at 27-28, 102 S.Ct. 2202 (footnotes and citation omitted). 57 Td. at 20-21, 102 S.Ct. 2202 (citation omitted). 19a breaches of § 13(c) agreements and collective- bargaining contracts between UMTA aid recipients and transit unions. The legislative history indicates that Congress intended those contracts to be governed by state law applied in state courts.” ATU 1338 argues that the right to sue a transpor- tation authority to enforce its agreements is implicit in the Supreme Court’s opinion. The court of appeals agreed with ATU 1338, but we think both DART’s and ATU 1338's arguments read far too much into the Supreme Court’s opinion. The issue of federal preemption of state immunity law was simply not presented in the case, and we do not think the Supreme Court would have resolved it merely by implication. Even if we were mistaken about the Supreme Court’s intention, we see no way to infer from its opinion what view it might take of the preemption issue. The court of appeals’ decision is inconsistent with Jackson Transit Authority because the court of appeals read the opinion in that case to decide the preemption issue in the present case. The court of appeals’ decision creates uncertainty in the law that is certainly unnecessary and may result in unfairness to litigants. The importance of clarity in the area is illustrated by the fact that the Supreme Court granted certiorari in Jackson Transit Author- ity” [blecause of the importance of the interpretation of § 13(c) for local transit labor relations”.*® For the Same reason, we conclude it is important for this Court to reach the preemption issue presented in this case. ® Id. at 29, 102 S.Ct. 2202 (footnote omitted). °° Id. at 20, 102 S.Ct. 2202 (footnote omitted). 20a Ill We come at last to the issue itself, which is a nar- row one. DART, for its part, concedes that it would not be immune from suit by ATU 1338 to require that the grievance procedures laid out in the Arrangement be followed. If, for example, DART refused to provide the hearing called for, or to engage in the prescribed fact-finding process, DART acknowledges that ATU 1338 could sue to enforce the Arrangement. ATU 1338, on the other hand, does not challenge the ade- quacy of the 1991 Arrangement under section 13(c) or argue that Texas law prohibiting collective bargain- ing by public employees is inapplicable to DART or is preempted by section 13(c). And while ATU 1338 ar- gued below that DART is not immune from suit on its agreements, it has abandoned those arguments in this Court. We accept without comment all these con- cessions for purposes of this case. The issue before us comes down to this: does section 13(c) preempt DART’s immunity from ATU 1338's suit to enforce the 2002 Resolution? Federal law can preempt state law expressly or implicitly.°° ATU 1338 does not contend that the UMTA contains any express preemption of state law. The United States Supreme Court has summarized implicit preemption as follows: [A] federal statute implicitly overrides state law either when the scope of a statute indicates that Congress intended federal law to occupy a field exclusively, or when state law is in actual conflict with federal law. We have found implied conflict © Freightliner Corp. v. Myrick, 514 U.S. 280, 286-287, 115 S.Ct. 1483, 131 L.Ed.2d 385 (1995); Great Dane Trailers, Inc. v. Estate cf Wells, 52 S.W.3d 737, 743 (Tex.2001). 2la pre-emption where it is impossible for a private party to comply with both state and federal re- quirements, or where state law stands as an ob- stacle to the accomplishment and execution of the full purposes and objectives of Congress.° ATU 1338 focuses on the latter component of im- plied preemption, arguing that by preventing suit to enforce the 2002 Resolution, state immunity law stands as an obstacle to achieving the full purpose of section 13(c) to protect transit employees’ interests. But section 13(c) requires only that a transporta- tion authority make arrangements that “the Secre- tary of Labor concludes are fair and equitable.”” The 1991 Arrangement was negotiated with ATU 1338 and was approved by the Secretary of Labor. As we have noted, ATU 1338 does not argue that the Ar- rangement is less than fair and equitable as required by section 13(c). The Arrangement, which achieves the full purposes of section 13(c), does not provide for binding or judicially enforceable general grievance resolutions. Under Attachment B, a hearing must be conducted, and if the grievance is not resolved, a fact- finding process ensues. But the end result of that process is an arbitration panel’s report and recom- ®! Freightliner, 514 U.S. at 287, 115 S.Ct. 1483 (citations and internal quotation marks omitted); see also Great Dane, 52 S.W.3d at 743. 62 Pub.L. No. 88-365, § 10(c), 78 Stat. 302, 307, redesignated as § 13(c) by Pub.L. No. 89-562, § 2, 80 Stat. 715, 716, as amended, now codified at 49 U.S.C. § 5333(b) (2006) (“As a con- dition of financial assistance under . . . this title, the interests of employees affected by the assistance shall be protected under arrangements the Secretary of Labor concludes are fair and equitable. The agreement granting the assistance . . . shall spe- cify the arrangements.”). 22a mendations that are expressly “advisory only” and not binding on either party. The report must be pub- lished in the local media, suggesting that the parties’ recourse is then through political processes. Munici- palities that are part of DART may be pressured to instruct the members each appoints to DART’s go- verning board to adopt certain policies,“ and municipalities may withdraw from DART altogether.™ ATU 1338 acknowledges that a fact-finding report produced under Attachment B cannot be enforced in court but argues that the 2002 Resolution is differ- ent. ATU 1338 cannot explain, however, why it should be entitled to enforce a general grievance res- olution to which DART agreed when the process would not have produced an enforceable result had it continued to the end. The Resolution expressly rec- ognized that it did not change DART’s “position that it has a unilateral right to establish employment conditions, set wages, hours of employment or condi- tions of work.” The Resolution also recognized that DART was not waiving “its position that it may not legally enter into a legally binding and bilateral agreement with a labor organization regarding wages, hours, or conditions of employment of public employees.” Although the Resolution recited DART’s intention to comply with its terms, it also provided that if DART made any unilateral change, the conse- quence would only be to relieve ATU 1338 of its commitment to a moratorium on filing general grievances. ATU 1338 argues that for DART to be immune from this suit makes the Resolution pointless. But *} See TEX. TRANSP. CODE §§ 452.571-.580. *4 Id. §§ 452.651-662. 23a ATU 1338’s complaint is with the 1991 Arrangement, not state immunity law. The Arrangement gave ATU 1338 no judicial recourse. DART’s immunity from suit takes nothing away from ATU 1338 to which it was entitled under section 13(c). ATU 1338 argues that if it cannot sue to enforce the Resolution, it is left with no recourse at all. But the Resolution itself contemplates that if DART unilaterally failed to comply with its terms, ATU 1338 could simply file another general grievance and invoke the process provided by Attachment B. Given that an arrangement can meet the require- ments of section 13(c) without providing for judicial enforcement of grievance resclutions, nothing in that statute implicitly preempts state immunity law. Ac- cordingly, we conclude that section 13(c) does not preempt DART’s immunity from this suit. * * * The judgment of the court of appeals is therefore reversed and the case is dismissed. 24a APPENDIX B COURT OF APPEALS OF TEXAS, DALLAS. No. 05-—05-—00241-CV. DALLAS AREA RAPID TRANSIT, Appellant, Vv. AMALGAMATED TRANSIT UNION LOCAL No. 1338, Appellee. Oct. 14, 2005. Before Justices WHITTINGTON, FRANCIS, and LANG. OPINION Opinion by Justice WHITTINGTON. Amalgamated Transit Union Local No. 1338 sued Dallas Area Rapid Transit for violations of a general grievance resolution. DART filed a plea to the juris- diction, claiming governmental immunity. The trial judge denied the plea. DART appeals, arguing in a single issue that the trial court did not have jurisdic- tion over ATU 1338’s suit. We affirm the trial court’s order. BACKGROUND ATU 1338 is a labor organization representing employees of DART, a regional transportation au- 25a thority. See TEX. TRANSP. CODE ANN. 8§ 452.001-— 720 (Vernon 1999 & Supp.2004—-05). In 2001, ATU 1338 filed a general group grievance on behalf of its bargaining unit members. In June 2002, DART and ATU 1338 entered into a general grievance resolution agreement to resolve the dispute. The resolution ad- dressed salaries and wages for DART employees as well as other issues. In this lawsuit, ATU 1338 al- leges DART breached the resolution agreement by failing to implement the pay increase included in the resolution and taking other unilateral actions incon- sistent with the resolution. DART filed a plea to the jurisdiction, claiming the tral court lacked subject matter jurisdiction over ATU 1338’s claims on the grounds of governmental immunity. ATU 1338 ar- gued in response that state governmental immunity law was preempted by federal law. The trial judge denied DART’s pla. STANDARD OF REVIEW A plea to the jurisdiction is a dilatory plea by which a party challenges a court’s authority to determine the subject matter of an action. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Whether a trial court has subject matter jurisdiction is a question of law to be reviewed de novo. Tex. Nat- ural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002). In performing this re- view, we do not look to the merits of the plaintiffs case but consider only the pleadings and the evidence pertinent to the jurisdictional inquiry. County of Ca- meron v. Brown, 80 S.W.3d 549, 555 (Tex.2002) (cit- ing Tex. Natural Res. Conservation Comm’n v. White, 46 S.W.3d 864, 868 (Tex.2001)). Although federal preemption is. not usually a jurisdictional question, see Mills v. Warner Lambert Co., 157 S.W.3d 424, 427 26a (Tex.2005) (federal preemption usually defense to plaintiffs suit but does not ordinarily deprive state court of jurisdiction), here it is asserted not to deprive the state court of jurisdiction but to maintain it de- spite DART’s plea. DISCUSSION DART argues the trial court did not have jurisdic- tion for five reasons. First, DART argues its status as a governmental entity provides it with immunity from ATU 13838’s lawsuit. Second, DART argues it has not waived its immunity. Third, DART asserts it has not taken affirmative action to invoke the trial court’s jurisdiction. Fourth, DART maintains federal law does not preempt state law to confer jurisdiction on the trial court. Fifth, DART argues ATU 1338's sole redress is through an administrative grievance process. Our resolution of the fourth argument is dis- positive of the appeal. See TEx.R.ApP. P. 47.1. DART’s first, second, third, and fifth arguments are premised upon governmental immunity. We conclude the federal Urban Mass Transportation Act (UMTA) preempts state governmental immunity law in this case. See 49 U.S.C.A. § 5333(b) (West Supp.2005) (formerly designated as section 13(c) and referred to as section 13(c) in case law). “If a state law conflicts with federal law, it is preempted and has no effect.” Great Dane Trailers, Inc. v. Estate of Wells, 52 S.W.3d 737, 743 (Tex.2001); see also U.S. CONST. art. VI, cl. 2 (“The laws of the United States are the ‘supreme Law of the Land... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding”) (quoted in Great Dane Trailers, 52 S.W.3d at 743). Preemption may be express or implied. See Great Dane Trailers, 52 S.W.3d at 743. Federal law may impliedly preempt 27a state law if it is impossible for a private party to comply with both state and federal requirements or if state law obstructs accomplishing and executing Congress’s full purposes and objectives. Great Dane Trailers, 52 S.W.3d at 743; see also Geier v. Am. Honda Motor Co., 529 U.S. 861, 882, 120 S.Ct. 19138, 146 L.Ed.2d 914 (2000) (because rule of state tort law upon which plaintiffs sued would have stood “as an obstacle to the accomplishment and execution of” im- portant objectives of federal motor vehicle safety standard, it was preempted). ATU 1338 contends application of state govern- mental immunity law would thwart Congress’s intent and the purposes of the UMTA. The United States Supreme Court discussed the purposes of the UMTA in Jackson Transit Authority v. Local Division 1285, Amalgamated Transit Union, 457 U.S. 15, 102 S.Ct. 2202, 72 L.Ed.2d 639 (1982). At a time when many private transportation companies across the country were in “precarious financial condition,” the UMTA “was designed in part to provide federal aid for local governments in acquiring failing private transit com- panies so that communities could continue to receive the benefits of mass transportation despite the col- lapse of the private operations.” Jackson Transit Auth., 457 U.S. at 17, 102 S.Ct. 2202. Congress was also aware, however, “that public ownership might threaten existing collective-bargaining rights of unionized transit workers employed by private com- panies.” Jackson Transit Auth., 457 U.S. at 17, 102 S.Ct. 2202. The Court continued, If, for example, state law forbade collective bar- gaining by state and local government em- ployees, the workers might lose their collective- bargaining rights when a private company was 28a acquired by a local government. To prevent fed- eral funds from being used to destroy the collec- tive-bargaining rights of organized workers, Congress included § 13(c) in the Act. Section 13(c) requires, as a condition of federal assis- tance under the Act, that the Secretary of Labor certify that “fair and equitable arrangements” have been made “to protect the interests of em- ployees affected by [the] assistance.” The statute lists several protective steps that must be taken before a local government may receive federal aid .... The protective arrangements must be speci- fied in the contract granting federal aid. Jackson Transit Auth., 457 U.S. at 17-18, 102 S.Ct. 2202 (citations omitted). The Jackson Transit Authority Court noted Con- gress’s concern that state law may forbid collective bargaining by state and local government employees, and thus “workers might lose their collective- bargaining rights when a private company was ac- quired by a local government.” See Jackson Transit Auth., 457 U.S. at 17, 102 S.Ct. 2202. In Texas, state law does prohibit collective bargaining by government employees. See TEX. GOVT CODE ANN. § 617.002 (Vernon 2004) (official of state or political subdivision may not enter into collective bargaining contract with labor organization regarding wages, hours, or conditions of employment of public employees; any such contract void). DART, however, is a party to an “Arrangement Pursuant to Section 13(c) of the Urban Mass Transportation Act of 1964,” under which DART agreed the “existing rights of employees covered by this Arrangement to present grievances concerning their wages, hours of work, or conditions of work, individually or through a representative... 29a shall be preserved and continued.” Arrangement Pursuant to Section 13(c) of the Urban Mass Transportation Act of 1964, J 4. DART makes annual certifications and assurances of its compliance with federal law and regulations to the Federal Transit Authority to obtain federal assistance, and a significant portion of DART’s annual budget is derived from federal funds. Thus, the 13(c) arrangement between DART and ATU 1338 is consistent with Congress’s intent “to prevent federal funds from being used to destroy the collective-bargaining rights of organized workers.” See Jackson Transit Auth., 457 U.S. at 17, 102 S.Ct. 2202. While the issue in Jackson Transit Authority was whether Congress intended to create federal causes of action for breaches of section 13(c) agreements and collective bargaining contracts, see Jackson Transit Auth., 457 U.S. at 21, 29, 102 S.Ct. 2202, the Court noted “it is reasonable to conclude that Congress ex- pected the § 13(c) agreement and the collective- bargaining agreement, iike ordinary contracts, to be enforceable by private suit upon a breach.” Jackson Transit Auth., 457 U.S. at 20-21, 102 S.Ct. 2202. The Court concluded the contracts at issue were to be go- verned by state, not federal, law. See Jackson Transit Auth., 457 U.S. at 29, 102 S.Ct. 2202. The Court ex- plained, “Congress designed § 13(c) as a means to ac- commodate state law to collective bargaining, not as a means to substitute a federal law of collective bar- gaining for state labor law.” Jackson Transit Auth., 457 U.S. at 28, 102 S.Ct. 2202. We have also noted “arrangements under section 13(c) of the Urban Mass Transportation Act are not collective bargaining contracts,” but are “contracts, albeit contracts required by federal statute.” Dallas 30a Area Rapid Transit v. Plummer, 841 S.W.2d 870, 874 (Tex.App. Dallas 1992, writ denied), abrogated in part on other grounds by Tex. Educ. Agency v. Leeper, 893 S.W.2d 4382, 446 (Tex. 1994) (Texas Uniform Declaratory Judgment Act waives governmental im- munity for awards of attorneys’ fees). Section 13(c) protective arrangements are “valid and enforceable in state courts.” Plummer, 841 S.W.2d at 874. “Em- ployees covered by a section 13(c) agreement, or their union, may bring a contract action in state court to enforce the agreement.” Plummer, 841 S.W.2d at 874 (citing Jackson Transit Auth., 457 U.S. at 29 n. 13, 102 S.Ct. 2202). DART argues ATU 1338’s claim is not for breach of a section 13(c) arrangement, but only for breach of the resolution agreement. We disagree. The general grievance resolution agreement recites that ATU 1338’s grievance was addressed “in conformity with Section 8.10 of the DART Hourly Employment Ma- nual and Section 617.005 of the Governinent Code and DART’s [Section] 13(c) Capital Arrangement cer- tified by the Department of Labor on September 30, 1991.” As we noted in Plummer, “DART’s personnel policy manual contains the grievance procedure properly promulgated pursuant to section 13(c) and, as part of the section 13(c) agreement, is binding on DART.” Plummer, 841 S.W.2d at 874. We concluded in Plummer the trial court “was correct in finding that DART has a contractuai duty to implement the Trial Board’s award and that failing to do so consti- tutes a breach of that duty.” Plummer, 841 S.W.2d at 874. Asin Plummer, ATU 1338 “may bring a contract action in state court to enforce the agreement.” See Plummer, 841 S.W.2d at 874. 3la Assuming state law provides that DART, as a go- vernmental entity, is immune from suit, this im- munity would obstruct accomplishing and executing Congress’s full purposes and objectives under the UMTA. See Great Dane Trailers, 52 S.W.3d at 743; Geier, 529 U.S. at 882, 120 S.Ct. 1913. The UMTA, as interpreted in Jackson Transit Authority, is clear: state law is to control labor relations between local governments and unionized transit workers, as long as the workers’ collective-bargaining rights are pre- served before a local government receives federal aid. See Jackson Transit Auth., 457 U.S. at 17, 27, 102 S.Ct. 2202. Congress designed section 13(c) of the UMTA “as a means to accommodate state law to col- lective bargaining.” Jackson Transit Auth., 457 U.S. at 27, 102 S.Ct. 2202. Although section 13(c) may be narrowly drafted to minimize its effects on state labor law, Congress’s clear intent was to preserve collec- tive-bargaining rights. Where state immunity law would preclude enforcement of the rights preserved under section 13(c), Congress’s objectives could not be accomplished. Therefore, state immunity law “is preempted and has no effect.” See Great Dane Trai- lers, 52 S.W.3d at 743. Not all conflicts between federal statutes and state immunity laws result in preemption. The United States Supreme Court held the State of Maine was immune from a suit by its employees under the Fed- eral Fair Labor Standards Act because Congress cannot abrogate a state’s sovereign immunity. Alden v. Maine, 527 U.S. 706, 754, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999) (applying sovereign immunity pursuant to Eleventh Amendment of United States Constitution). The rule in Alden, however, does not apply to DART in this case because DART is not an “arm of the state.” See Alden, 527 U.S. at 756, 119 32a S.Ct. 2240 (sovereign immunity bars suits against State or “arm of the state” but not lesser governmen- tal entity); Williams v. Dallas Area Rapid Transit, 242 F.3d 315, 322 (5th Cir.) (DART not “arm of the state” entitled to assert federal Eleventh Amendment immunity in case under Age Discrimination in Em- ployment Act), cert. denied, 534 U.S. 1042, 122 S.Ct. 618, 151 L.Ed.2d 549 (2001); see also Hoff v. Nueces County, 1538 S.W.3d 45, 49 (Tex. 2004) (per curiam) (Eleventh Amendment immunity does not bar suit against “lesser entities” such as county). As noted in Alden, “certain limits are implicit in the constitu- tional principle of sovereign immunity;” it “does not bar all judicial review of state compliance with the Constitution and valid federal law.” Alden, 527 U.S. at 755, 119 S.Ct. 2240. Here, state immunity law does not bar judicial review of ATU 1338's claims. We affirm the trial court’s denial of DART’s plea to the jurisdiction. 33a APPENDIX C [Logo] COURT OF APPEALS FIFTH DISTRICT OF TEXAS AT DALLAS No. 05-05-00241-CV DALLAS AREA RAPID TRANSIT, Appellant, Vv. AMALGAMATED TRANSIT UNION LOCAL NO. 1338, Appellee Appeal from the 191st Judicial District Court of Dallas County, Texas. (Tr.Ct.No. 04-06740-J). Opinion delivered by Justice Whittington, Justices Francis and Lang participating. JUDGMENT In accordance with this Court’s opinion of this date, we AFFIRM the trial court’s order denying the plea to the jurisdiction. We ORDER that appellee Amalgamated Transit Union Local No. 1338 recover its costs of this appeal from appellant Dallas Area Rapid Transit. Judgment entered October 14. 2005. /s/ Mark Whittington MARK WHITTINGTON JUSTICE 34a APPENDIX D Order issued December 5, 2005 [Logo} In The COURT OF APPEALS FIFTH DISTRICT OF TEXAS AT DALLAS No. 05-05-00241-CV DALLAS AREA RAPID TRANSIT, Appellant Vv. AMALGAMATED TRANSIT UNION LOCAL NO. 1338, Appellee ORDER Before Justices Whittington, Francis, and Lang Appellant’s October 31, 2005 Motion for Rehearing is DENIED. /s/ Mark Whittington MARK WHITTINGTON JUSTICE 35a APPENDIX E IN THE DISTRICT COURT 191st JUDICIAL DISTRICT DALLAS COUNTY, TEXAS Cause No. 04-06740-J AMALGAMATED TRANSIT UNION LOCAL No. 1338 Plaintiff, Vs. DALLAS AREA RAPID TRANSIT, Defendant. ORDER ON PLEA TO THE JURISDICTION On the 16th day of November, 2004 came on for hearing the Plea to the Jurisdiction of Dallas Area Rapid Transit in the above styled and numbered cause. All parties appeared through their counsel of record. At the conclusion of the hearing the Court re- quested additional briefing, which was _ provided. Having considered the plea, the response, the brief- ing, the applicable law, the jurisdictional evidence presented and its file, this Court is of the opinion and finds that the Plea to the Jurisdiction should be denied. IT IS THEREFORE ORDERED that Dallas Area Rapid Transit’s Plea to the Jurisdiction be, and it he- reby is, denied. 36a SIGNED this 1st day of Feb 2005. /s/ Catharina Haynes Judge Presiding Approved as to Form Only: /s/ Hal K. Gillespie Hal K. Gillespie, Attorney for Plaintiff /s/ Harold R. McKeever Harold R. McKeever, Attorney for Defendant 37a APPENDIX F IN THE DISTRICT COURT 191 ST JUDICIAL DISTRICT DALLAS COUNTY, TEXAS Cause No. 04-06740 AMALGAMATED TRANSIT UNION LOCAL No. 1338, Plaintiff, Vv. DALLAS AREA RAPID TRANSIT, Defendants. PLAINTIFF’S ORIGINAL PETITION AND DEMAND FOR JURY TRIAL TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW Plaintiff Amalgamated Transit Un- ion Local No. 1338 (“ATU 1338” or “Plaintiff), and files this its Original Petition for damages and equit- able relief, complaining of Defendant Dallas Area Rapid Transit (“DART” or “Defendant”), and for cause of action respectfully shows the following: I, DISCOVERY 1. Discovery in this case shall be conducted under Level 2 of Rule 190, Texas Rules of Civil Procedure. Il. JURISDICTION AND VENUE 2. Plaintiff has fulfilled all of the jurisdictional re- quirements prior to bringing this suit. Jurisdiction of the Dallas County District Court is proper pursuant to Section 24.007 of the Texas Government Code. 38a 3. Venue is proper in Dallas County, Texas, pur- suant to Section 15.002 of the Texas Civil Practice & Remedies Code in that a substantial part of the events or omissions giving rise to the claims de- scribed herein occurred in Dallas County, Texas. Ad- ditionally, DART conducts and transacts business in Dallas County, Texas, and maintains an office in Dallas County, Texas. Ill. PARTIES 4. Plaintiff ATU 1338 is a labor organization representing employees (e.g. bus drivers) of DART. ATU 1338's primary purpose and objective is to iden- tify employment concerns and problem areas of tran- sit workers of DART and to improve all aspects of the work environment of transit workers, including the establishment of clear, concise, and fair employment policies, practices, and procedures. 5. Defendant DART is a regional transportation authority organized and existing under Texas Trans- portation Code, Chapter 452, having its principle place of business in Dallas County, Texas. DART may be served with citation in this action by serving its agent for service of citation: Gary Thomas, President Executive Director of DART, 1401 Pacific Avenue, Dallas, Texas 75202. IV. FACTUAL BACKGROUND 6. On April 24, 2001, in accordance with Section 8.10 of the DART Hourly Employment Manual (“HEM”), ATU 1338 filed a “General Group Griev- ance” on behalf of its bargaining unit members. 7. In order to address the grievance, and in confor- mity with Section 8.10 of the DART HEM, Section: 617.005 of the Government Code, and DART’ s 13(c) 39a Capital Arrangement certified by the Department of Labor on September 30, 1991, the parties (DART and ATU 1338) met and conferred to address the griev- ance issues. 8. As a result of the meeting regarding the griev- ance issues, DART and ATU 1338 entered into a General Grievance Resolution (“Resolution Agree- ment”) which was ratified and signed by Gary Tho- mas, President Executive Director of DART, Roland Castaneda, General Counsel for DART, and Kenneth Kirk, then presiding President and Business Agent for ATU 1338. A true and correct copy of the Resolu- tion Agreement is attached hereto as Exhibit A. 9. Paragraph B of the Resolution Agreement pro- vides for increases in the “Salaries and Wages for Operating Employees.” Paragraphs B(1-3) specifically provide: 1. Effective the first full pay period in October 2001, each hourly employee who is in an ac- tive pay status shall receive a general pay in- crease of four percent (4%). 2. Effective the first full pay period in October 2002, each hourly employee who is in an ac- tive pay status shall receive a general pay in- crease of four percent (4%). 3. Effective the first full pay period in October 2003, each hourly employee who is in an ac- tive pay status shall receive a general pay in- crease of four percent (4%). (emphasis added). 10. Paragraph P of the Resolution Agreement es- tablishes that the terms of the Resolution Agreement are final and entered into by the parties in order to 40a resolve the issues raised in ATU 1338's general grievance. Paragraph P specifically provides: This Resolution of the General Grievance filed April 24, 2001 constitutes a final resolution to the issues raised in the General Grievance. Fur- thermore, Amalgamated Transit Union, Local 1338 shall not file a General Grievance concern- ing terms and conditions of employment, speci- fied wages, hours, and conditions of work for a period of three (3) years. Said term shall run from October 1, 2001 to September 30, 2004. DART agrees for the three (3) year period it will not make any unilateral changes to DART’s hourly employment manual except for those is- sues remaining open herein. (emphasis added). 11. Paragraph S of the Resolution Agreement de- scribes the “Management Rights” of DART and fur- ther illustrates that DART agreed to abide by the terms of the Resolution Agreement in order to resolve the underlying general grievance. Paragraph S(4) specifically provides: DART intends to abide by the provisions herein, and to resolve the general grievance as herein stated. By resolving this general grievance, DART does not intend to waive its legal obliga- tions, including those set forth in its (13)(c) Ar- rangements and its position that it may not le- gally enter into a legally binding and bilateral agreement with a labor organization regarding wages, hours, or conditions of employment of public employees. This general grievance’ is therefore resolved subject to all the foregoing limitations. 4la (Emphasis added). 12. Despite DART’s “position” that it may not enter into a legally binding and bilateral agreement with a labor organization regarding wages, hours, or condi- tions of employment with public employees, ATU 1338 never agreed to this “position” of DART. Fur- thermore, Texas law is definitively contrary to DART’s position. In Dallas Area Rapid Transit v. Plummer, a lawsuit involving DART and a member of ATU 1338, the Dallas Court of Appeals held inter alia that employees, or their union, covered by a section 13(c) Urban Mass Transportation Act agreement, may bring a contract action in state court to enforce the agreement and that such agreements are binding on DART. Dallas Area Rapid Transit v. Plummer, 841 S.W.2d 870, 874 (Tex. App.-Dallas, 1992, writ denied). 13. The Resolution Agreement is a final resolution of a general grievance brought pursuant to Section 8.10 of the DART HEM and in conformity with DART’s 13(c) Capital Arrangement certified by De- partment of Labor. Just as in Plummer, the Resolution Agreement is a binding contract upon which ATU 1338 may enforce through legal action in state court. 14. On or about September 23, 2003, the DART Board of Directors approved DART’s 2003-2004 budget. In doing so, the Board did not provide for DART employees’ 4% general pay increase for the year 2003 - 2004 as provided for in Paragraph B(3) of the Resolution Agreement. To date, DART has not provided the 4% general pay increase agreed to in Paragraph B(3) of the Resolution Agreement. 15. DART has unilaterally changed its policy on the amount of life insurance available to employees. Pre- viously, in accordance with the HEM, an employee 42a was eligible for life insurance at two to three times the employee’s annual salary level. DART has unila- terally decreased this benefit to allow employees to be eligible for life insurance at one time the employee’s annual salary level. This unilateral policy change vi- olates paragraph P of the Resolution Agreement which states that “DART agrees that for the three year period it will not make any unilateral changes to DART’s Hourly Employment Manual...” 16. DART has unilaterally changed its policy on the amount of Service Incentive Pay (SIP) provided to employees. DART has frozen the level of SIP at 2002 pay rates instead of increasing SIP to 2003 level pay rates. The unilateral freezing of the SIP level violates the terms of the HEM and is a unilateral policy change that violates paragraph P of the Resolution Agreement which states that “DART agrees that for the three year period it will not make any unilateral changes to DART’s Hourly Employment Manual...” 17. DART has unilaterally instituted a new acci- dent policy for the maintenance department which DART is calling, “SOP” or “Standing Operating Pro- cedure.” The unilateral creation of this new policy vi- olates paragraph P of the Resolution Agreement which states that “DART agrees that for the three year period it will not make any unilateral changes to DART’s Hourly Employment Manual...” 18. DART has unilaterally instituted a new policy of not providing full benefits to new full time em- ployees until after ninety days of employment, and is not allowing new full time employees to invest in a 401k plan until after six months of employment. Pre- viously, when an employee was hired as a new full time employee, he/she would immediately receive full benefits and full 401k benefits. The unilateral change 43a of this policy violates paragraph P of the Resolution Agreement which states that “DART agrees that for the three year period it will not make any unilateral changes to DART’s Hourly Employment Manual...” 19. On or about September 30, 2003, ATU 1338 President/Business Agent iCenneth Kirk sent a letter to DART Chairman of Board of Directors Robert Pope, and President/Executive Director Gary Thomas informing DART that ATU 1338 was asking DART to take all necessary action to implement the 4% gen- eral pay increase called for in Paragraph B(3) of the Resolution Agreement and that DART’s failure to do so violated the Resolution Agreement. 20. The actions complained of herein directly affect and injure ATU 1338 and the members of the ATU 1338. The claims asserted herein are germane to ATU 1338’s purpose and objective. Moreover, ATU 1338 is directly affected by the complained of acts through a reduction in its membership’s salaries and wages, and a weakening of ATU 1338’s negotiating strength on behalf of its members. 21. Plaintiff has retained the undersigned attor- neys in order to prosecute this action. 22. Plaintiff hereby demands a trial by jury on all claims and defenses in this action. V. FIRST CAUSE OF ACTION - Breach of contract 23. Plaintiff realleges and incorporates the allega- tions contained in Paragraphs 1 through 22 as if fully contained herein. 24. Defendant breached the Resolution Agreement contract with Plaintiff when Defendant ceased to per- form under the contract as stated supra when Defen- dant: (1) failed to implement the 4% general pay in- 44a crease agreed to in Paragraph B(3) of the contract, (2) unilaterally changed the life insurance policy, (3) un- ilaterally changed its SIP policy, (4) unilaterally in- stituted a new maintenance accident policy, and (5) unilaterally changed the policy for payment of bene- fits to new full time employees. 25. The Resolution Agreement contract between Defendant and Plaintiff was supported by adequate consideration. The parties mutually agreed to all re- levant terms. All conditions precedent to Defendant’s performance under the contract have been performed or have occurred. Performance by Defendant was not excused and DART agreed that for a three year pe- riod (running from October 1, 2001 to September 30, 2004), DART would abide by the terms of the resolu- tion and not make any unilateral changes to DART’s HEM. 26. Plaintiff has performed its obligations under the contract. In particular, prior to Defendant’s breach of the contract, Plaintiff withheld from filing any general grievance concerning terms and condi- tions of employment, specified wages, hours, or condi- tions of work. 27. As a result of Defendant’s breach of the con- tract, as set out in the preceding paragraphs of this petition, Plaintiffs members have sustained financial injury and lost the benefits expected under the con- tract. Furthermore, Defendant’s complained of acts have harmed Plaintiff by not increasing its members’ salaries and wages, and by weakening ATU 1338’s negotiating strength on behalf of its members. 28. On September 30, 2003, Plaintiff notified De- fendant that DART’s actions were in violation of the Resolution Agreement. Defendant has refused to 45a honor the Resolution Agreement by: (1) failing to im- plement the 4% general pay increase agreed to in Pa- ragraph B(3) of the contract, (2) unilaterally chang- ing the life insurance policy, (3) unilaterally changing the SIP policy, (4) unilaterally instituting a new maintenance accident policy, and (5) unilaterally changing the policy for payment of benefits to new full time employees 29. Furthermore, ATU 1338 is entitled to recover its reasonable and necessary attorneys’ fees because this is a claim on an oral or written contract within the meaning of Civil Practice and Remedies Code §38.001. 30. ATU 1338 hereby demands trial by jury on all claims and defenses in this action. VI. PRAYER WHEREFORE, Plaintiff ATU 1338 requests that Defendant Dallas Area Rapid Transit (DART) be cited to appear and answer, and that after trial by jury, ATU 1338 have judgment against DART as follows: 1. Actual damages; 2. Pre-judgment interest in the maximum amount allowed by law; 3. Reasonable and necessary attorneys’ fees; 4. Post-judgment interest in the maximum amount allowed by law; 5. Costs of suit; 6. An injunction ordering DART to retroactively implement the 4% general pay increase agreed to in Paragraph B(3) of the Resolution Agreement with retroactive application of the injunction to the first full pay period in October 2003; 46a 7. An injunction ordering DART to restore the level of life insurance benefits previously of- fered to DART employees by providing DART employees life insurance benefits at two to three times their annual salary level; 8. An injunction ordering DART to retroactively restore and pay SIP at increased levels in ac- cordance with the HEM; 9. An injunction ordering DAK’! to invalidate and nullify the new Standard Operating Pro- cedure policy which DART has unilaterally implemented for the maintenance department; 10. An injunction ordering DART to provide full benefits to all newly hired employees in ac- cordance with the HEM and to retroactively provide full benefits upon any employee de- nied benefits during their first 90 days of em- ployment with DART; and 11. Such other and further relief to which Plain- tiff may justly be entitled. Respectfully submitted, GILLESPIE, ROZEN, WATSKY, & MOTLEY, P.C. 3402 Oak Grove Avenue, Suite 200 Dallas, Texas 75204 Telephone.: (214) 720-2009 Telecopier: (214) 720-2291 Date: 7/14/04 By: /s/ Hal K. Gillespie Hal K. Gillespie (attorney-in-charge) State Bar No. 07925500 Joseph H. Gillespie State Bar No. 24036636 47a IN THE DISTRICT COURT ___ JUDICIAL DISTRICT DALLAS COUNTY, TEXAS Cause No. AMALGAMATED TRANSIT UNION LOCAL NO. 1338, Plaintiff, Vv. DALLAS AREA RAPID TRANSIT, Defendants. PLAINTIFF'S JURY DEMAND COMES NOW Amalgamated Transit Union Local No. 1338, Plaintiff in the above-styled cause, and he- reby demands a jury trial on all issues, claims, de- fenses, and actions in the above-styled cause. Respectfully submitted, GILLESPIE, ROZEN, WATSKY, & MOTLEY, P.C. 3402 Oak Grove Avenue, Suite 200 Dallas, Texas 75204 Telephone.: (214) 720-2009 Telecopier: (214) 720-2291 Date: 7/19/04 By: /s/ Hal K. Gillespie Hal K. Gillespie (attorney-in-charge) State Bar No. 07925500 Joseph H. Gillespie State Bar No. 24036636 48a APPENDIX G GENERAL GRIEVANCE RESOLUTION WHEREAS, Amalgamated Transit Union, Local Division 1338 (“ATU”) filed a “General Group Griev- ance” on April 24, 2001 in accordance with Section 8.10 of the Dallas Area Rapid Transit (“DART”) Hourly Employment Manual (“HEM”); and WHEREAS, in conformity with Section 8.10 of the DART Hourly Employment Manual and Section 617.005 of the Government Code and DART’s 13(c) Capital Arrangement certified by the Department of Labor on September 30, 1991, the parties did meet and confer to address the grievance issues stated in the General Grievance; and WHEREAS, it is the intent of DART to resolve the issues raised in the General Grievance; NOW THEREFORE, these issues are resolved as follows: A: DART HOURLY EMPLOYMENT MANUAL Attached as Exhibit 1 are the agreed proposed revisions that will be subject to the Hourly Employ- ment Manual (HEM) 8.12 modification process. B: SALARIES AND WAGES FOR OPERATING EMPLOYEES 1. Effective the first full pay period in October 2001, each hourly employee who is in an active pay status shall receive a general pay increase of four percent (4%). 2. Effective the first full pay period in October 2002, each hourly employee who is in an active pay status shall receive a general pay increase of four percent (4%). 49a 3. Effective the first full pay period in October 2003, each hourly employee who is in an active pay status shall receive a general pay increase of four percent (4%). C: QUARTERLY INCENTIVE BONUS PROGRAM DART will continue the quarterly incentive bo- nus program governed by the same provisions pre- sently in effect through FY 2004. Military Leave Without Pay will not be characterized as an unsche- duled absence. This program continues uninterrupted and retroactive to October 1, 2001. D: SERVICE AWARD CALCULATION Part-time service at DART will be included in the calculation of time for the purpose of service awards. E: RAIL YARD OPERATOR SHIFT DIFFERENTIAL PAY Operators who are regularly scheduled work as- signed to the rail yard will be compensated twenty- five cents ($0.25) over their base pay rate for all hours worked while assigned to the rail yard. F: RAIL YARD OPERATOR AND RAIL EXTRA BOARD ALLOWANCE Regular full-time employees who work regularly scheduled work assigned to the rail yard or rail extra board will be provided shoe/foul weather gear. G: MATERIAL CONTROL EMPLOYEE ALLOWANCE Regular full-time employees who work regularly scheduled work assigned to Materials Control will be given $200.00 as the annual shoe/foul weather gear allowance, effective October I, 2001 through the con- clusion of this agreement. 50a H: MAINTENANCE EMPLOYEE TOOL ALLOWANCE Regular full-time skilled employees who work regularly scheduled work assigned to the Mainten- ance Department will be given $325.00 as the annual tool allowance, effective October 1, 2001 through the conclusion of this agreement. I: MAINTENANCE EMPLOYEE SHOE ALLOWANCE All full-time Maintenance Department em- ployees who are employed on October lst of each ca- lendar will be given $115.00 as the annual shoe al- lowance, effective October 1, 2001 through the conclusion of this agreement. J: MAINTENANCE EMPLOYEE-SICK LEAVE PAY All absence hours up to 80 hours in a rolling twelve-month period will no longer be subject to sick leave ineligibility for failure to provide medical verifi- cation. In order to maintain eligibility for sick leave pay for absence hours beyond the 80 hours, em- ployees must present to their supervisor a medical verification, consistent with Maintenance Depart- ment Attendance Control Procedure (HEM, Section MD-I5) prior to the completion of their shift upon the first day of their return to work. Employees not com- plying with this requirement will forfeit sick leave pay for those unscheduled hours in excess of the ac- cumulated 80 hours. Absences while participating in the Alternative Duty Program are not automatically exempt from being classified as “unscheduled” and shall be considered as any other absence. K: EYEGLASS ALLOWANCE Regular full-time employees will be given an available open enrollment option through Aetna U.S. 5la Healthcare of a three hundred dollar ($300.00) bi- ennial eyewear/contact/lenses allowance. See the health benefits materials for more infatuation. L: TRANSPORTATION ADMINISTRATION OF DISCIPLINE DART shall remove from each hourly employee all preventable accidents prior to October 1, 1999. Subject to the foregoing, operators with 2 or 3 pre- ventable accidents currently on record will be held in abeyance for 120 calendar days (beginning November 28, 2001); if no additional preventable accidents occur during the time of abeyance, the oldest preventable accident will be dropped from record (applicable to operators who had 2 or 3 preventable accidents on their record as of 11/28/01). ATU agrees that opera- tors with three (3) preventable accidents in a 30- month period may be discharged. Preventable acci- dents do not include passenger accidents. M: H.O.V. PROCEDURES Attached as Exhibit 2 are the agreed H.O.V. Pro- cedures, to be used departmentally for H.O.V. em- ployees only. N: MODIFIED LIGHT RAIL TRANSFER ARRANGEMENT Attached as Exhibit 3 are the agreed changes to IV. 2. of the current arrangement. DART agrees to submit the modification to Department of Labor (DOL) to be considered with the next applicable grant. ATU will agree to and not oppose the modifications. O: OTHER POLICY MATTERS AND CLARIFICATIONS It is understood that there are remaining policy matters arising from the “General Grievance,” dated 52a April 24, 2001. Therefore, DART and ATU agree that those remaining matters shall be acted on within the first quarter of calendar year 2002. The remaining matters are as follows: a. Establish process team to review transporta- tion travel time options; b. Establish timeline to complete review and im- plement changes to HEM Chapter 10, Sub- stance Abuse Policy. It is understood between DART and ATU that certain acknowledgements arise from the “General Grievance,” dated April 24, 2001. Therefore, the fol- lowing are those acknowledgements: a. Customer Service acknowledges it has im- proved training and increased internal promo- tion opportunities and agrees to continue to do SO; b. ATU acknowledges and agrees it will waive the need for divisional mark-up, only when planned service changes necessitate multiple general mark-ups in a 12-month period. P: TERM OF RESOLUTION This Resolution of the General Grievance filed April 24, 2001, constitutes a final resolution to the issues raised in the General Grievance. Furthermore, Amalgamated Transit Union, Local 1338, shali not file a General Grievance concerning terms and condi- tions of employment, specified wages, hours or condi- tions of work for a period of three (3) years. Said term shall run from October 1, 2001 to September 30, 2004. DART agrees that for the three year period it will not make any unilateral changes to DART’s Hourly Employment Manual except for those issues remaining open herein. 53a Q: CONFLICT OF LAWS The legal invalidity or unenforceability of provi- sions of this resolution shall not affect the remaining provisions thereof. R: RATIFICATION AND APPROVAL The Union has obtained ratification by their membership in conformity with their constitution. S: MANAGEMENT RIGHTS 1. DART, at its sole discretion, possesses the right in accordance with applicable laws, to manage all operations, including the direction of the working force and the right to plan, direct and control the op- eration of all equipment and other property of DART, except as modified by Section 8.10 of the DART Hourly Employment Manual and Section 617.005 of the Texas Government Code and DART’s 13(c) Capi- tal Arrangement certified by the Department of La- bor on September 30, 1991 pursuant to USC § 5333(b), if applicable. Notwithstanding subpart N. of this agreement, nothing herein changes DART’ s po- sition that it has a unilateral right to establish em- ployment conditions, set wages, hours of employment or conditions of work. In the event that DART makes any unilateral change except for issues remaining open herein during the term of this Resolution, such change relieves Local 1338 of its commitment not to file a General Grievance from October 1, 2001 to Sep- tember 30, 2004. | 2. Matters of inherent managerial policy are re- served exclusively to DART under law. These include but shall not be limited to such areas of discretion or policy as the functions and programs of DART, stan- dards of service, its overall budget, utilization of 54a technology, the organizational structure and selection and direction of personnel. 3. The listing of specific rights in this article is not intended to be nor should be considered, restric- tive or a waiver of any rights of management not listed and not specifically surrendered herein whether or not such rights have been exercised by DART in the past. 4. DART intends to abide by the provisions herein, and to resolve the general grievance as herein stated. By resolving this general grievance, DART does not intend to waive its legal obligations, includ- ing those set forth in its 13(c) Arrangement and its position that it may not legally enter into a legally binding and bilateral agreement with a labor organi- zation regarding wages, hours, or conditions of em- ployment of public employees, This general grievance is therefore resolved subject to all the foregoing !imi- tations. IN WITNESS WHEREOF, DART and ATU ac- knowledge the General Grievance Resolution and the changes to be made to the DART Hourly Employment Manual. AMALGAMATED TRANSIT UNION /s/ Kenneth Kirk Kenneth Kirk . President, Local ATU 1338 Date: June 5, 2002 55a DALLAS AREA R [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0312%3A1. Public record. Not legal advice.