|THE TRANSIT AUTHORITY OF|||||CASE NO. 176|
|THE CITY OF OMAHA, d/b/a||||
|METRO AREA TRANSIT,||||
|v.|||||MEMORANDUM AND ORDER|
|TRANSPORT WORKERS UNION||||
|OF AMERICA, Local 223,||||
Appearances: For Plaintiff: Thomas Young
For Defendant Local: O'Connor & O'Connor
For Defendant International: No appearance
Before: Judges Wall, Kratz & DeBacker
This industrial dispute comes before the Court as an action requesting declaration of the rights of the parties under their Collective Bargaining Agreement  and inferentially, but not directly, the rights of the defendants to the benefits of the new Model or "National" Agreement under the UMTA, 49 USCA. 1601, et seq. The defendant international has not entered an appearance and, as of the moment, it appears from the files of the Court that service on that defendant has not been completed.
Hearing and argument under Rule 13 of the Rules of this Court were had on June 8, 1976. Parties have submitted briefs. 
The Court has no problem in declaring that there is a valid and subsisting collective bargaining agreement between the parties, including the present 13c agreement, since that is clear from the exhibits of the parties and is conceded in Defendant Local's Exhibit 1. As hereinafter explained, however, the Court has no present capacity to proceed further.
When Congress provided for subsidies for the acquisition of local, privately owned transit systems, it included provisions that have been codified as 49 USCA. 1609c and that are popularly referred to as Section 13c of the Urban Mass Transportation Act of 1964. Section 13c requires that assistance to local authorities (now broadened to include operating grants) be conditioned upon the making of "fair and equitable arrangements" as determined by the Secretary of Labor , to protect the interests of the affected employees. Such arrangements as specified in the Act include, but are not limited to:
1. Preservation of existing rights and benefits under collective bargaining.
2. Continuation of the right to bargain collectively.
3. Protection of employees against a worsening of their position with respect to employment.
4. Assurance of employment, and
5. Training or retraining programs.
The Congress further provided that the contract for the granting of such assistance should specify the terms of the protective arrangements. By Exhibit 1, Defendant International on behalf of Defendant Local requested the Secretary of Labor to make a binding determination of whether the Model Agreement under 13c should be the basis for the contract for granting of Federal assistance for 1976 year operating grant. This request was made under the 1975 certification (App. Ex. D) which reserved that question.
It is patent that plaintiff has not requested this Court directly to interpret its contract with the United States. It is this contract with the United States and not the Collective Bargaining Agreement which here governs the protective arrangements. If presented as the sole issue in the case, it is doubtful that we would have jurisdiction to interpret that contract with the United States. On the other hand, it is clear that an interpretation of the protective agreement itself, if properly presented as an industrial dispute, would be justiciable.
In Kendler v. Wirtz , 388 F. 2d 381, 384 (CA3, 1968), Chief Judge Hastie, speaking for the Court in considering a challenge to the Secretary of Labor's determination under 13c said:
"It is for the reasonable accommodation of unavoidably conflicting interests in such a situation as this that the Congress has seen fit to make the judgment of the Secretary of Labor as to what is fair and equitable controlling.
"Relating the attempted administrative compliance with the legislative directive to the limited judicial reviewing function outlined earlier in this opinion, we hold that it would not be appropriate for a court to substitute its judgment that railroad employees are afforded fair and equitable protection by the arrangements that have been made for their benefit."
Accordingly, we hold that no present dispute exists as to the validity of the collective bargaining agreement between the parties; that the determination of the adequacy of our requirement for new 13c arrangements rests with the Secretary of Labor, subject to such limited review in the Federal Courts as may be available under Section 10 of the Administrative Procedure Act; that the plaintiff may negotiate such protective arrangements with the defendant in reaching its collective bargaining contract and with the United States in reaching its contract for assistance from the United States if it so desires; and that there is, therefore, no matter presently before the Court for determination.
A petition which is shown not to present justiciable issues is subject to dismissal without hearing. Rule 13. In re: South Sioux City Municipal Electricians Assn. 3 CIR Adv. 68, 3 CIR 149-1 (1975).
IT IS ORDERED that the Petition be, and it hereby is, dismissed.
Entered June 18, 1976
NOTE: Footnotes deleted.