Guidelines, Section 5333(b), Federal Transit Law

SUMMARY: The Office of the American Workplace proposes to revise the

guidelines concerning its procedures for administering Section 5333(b)

of the Federal Transit law, commonly known as Section 13(c). These

revised guidelines will replace the existing guidelines in their

entirety. Section 5333(b) requires that certain protective arrangements

for employees be in place as a condition of Federal financial

assistance for transit projects. The proposed changes will allow the

agency to certify that the requisite protections are in place in a more

expeditious manner and will make the certification process more

predictable for the parties involved.

DATES: Interested parties may submit written comments on this proposal

by July 31, 1995.

ADDRESSES: Written comments should be submitted to Office of the

American Workplace, U.S. Department of Labor, Room S-2203, 200

Constitution Avenue NW., Washington, DC 20210; phone number (202) 219-

6045.

FOR FURTHER INFORMATION CONTACT: Charles L. Smith, Deputy Assistant

Secretary, Office of the American Workplace, U.S. Department of Labor,

200 Constitution Avenue NW., room S-2203, Washington, DC 20210, (202)

219-6045. This is not a toll-free number.

SUPPLEMENTARY INFORMATION: Section 5333(b) of the Federal Transit law,

49 U.S.C. Sec. 5333(b), requires that arrangements be made to protect

certain rights of mass transit employees affected by grants of Federal

funds for the acquisition, improvement, or operation of a transit

system. These rights include the preservation of rights and benefits

under existing collective bargaining agreements, the continuation of

collective bargaining rights, the protection of individual employees

against a worsening of their positions related to employment,

assurances of employment to employees of acquired mass transportation

systems, priority of reemployment, and paid training or retraining. The

current guidelines were introduced in March, 1978. In administering

this program, the Department of Labor notifies relevant unions, if any,

in the area of the proposed project and provides the grant applicant

and the affected union(s) an opportunity to develop the terms and

conditions of the protections. The Department provides technical and

mediation assistance to the parties during the negotiations.

In the main, these guidelines have functioned effectively--the vast

majority of grant applications are processed and the related employee

protective arrangements certified within a short time. However, a small

percentage of grants require prolonged negotiations to develop

appropriate protective arrangements.

The Federal Transit law envisions the innovative, cost-effective

use of Federal funds while assuring that the rights of affected

employees are protected. In order to better achieve this goal, revised

guidelines have been developed to standardize the certification

process, thereby insuring certification of protective arrangements in a

prompt manner after an application has been submitted.

Administrative Notices

A. Executive Order 12866

These guidelines have been reviewed by the Office of Management and

Budget in accordance with Executive Order 12866.

B. Regulatory Flexibility Act

The Agency Head has certified that these guidelines are not

expected to have a significant impact on a substantial number of small

entities as defined in the Regulatory Flexibility Act.

C. Paperwork Reduction Act

These guidelines contain no information collection requirements for

purposes of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et

seq.).

List of Subjects in 29 CFR Part 215

Grant administration; Grants--transportation; Labor-management

relations; Labor unions; Mass transportation.

Signed at Washington, DC this 23d day of June, 1995.

Charles L. Smith,

Deputy Assistant Secretary, Office of the American Workplace.

For the reasons set out in the preamble, 29 CFR Chapter II is

proposed to be amended by revising Part 215 to read as follows:

PART 215--GUIDELINES, SECTION 5333(b), FEDERAL TRANSIT LAW

Sec.

215.1 Purpose.

215.2 General.

215.3 Employees represented by a labor organization.

215.4 Employees not represented by a labor organization.

215.5 Processing of amendatory applications.

215.6 The Model Agreement.

215.7 Department of Labor contact.

Authority: Secretary's Order No. 2-93, 58 FR 42578, August 10,

1993.

Sec. 215.1 Purpose.

(a) The purpose of these guidelines is to provide information

concerning the Department of Labor's administrative procedures in

processing applications for assistance under the Federal Transit law,

as codified at 49 U.S.C. chapter 53.

(b) Section 5333(b) of title 49 of the United States Code reads as

follows:

Employee protective arrangements.--(1) As a condition of

financial assistance under sections 5307-5312, 5318(d), 5323(a)(1),

(b), (d), and (e), 5328, 5337, and 5338(j)(5) of 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 under sections

5307-5312, 5318(d), 5323(a)(1), (b), (d), and (e), 5328, 5337, and

5338(j)(5) shall specify the arrangements.

(2) Arrangements under this subsection shall include provisions

that may be necessary for--

(A) the preservation of rights, privileges, and benefits

(including continuation of pension rights and benefits) under

existing collective bargaining agreements or otherwise;

(B) the continuation of collective bargaining rights;

(C) the protection of individual employees against a worsening

of their positions related to employment;

(D) assurances of employment to employees of acquired mass

transportation systems;

(E) assurances of priority of reemployment of employees whose

employment is ended or who are laid off; and

(F) paid training or retraining programs.

(3) Arrangements under this subsection shall provide benefits at

least equal to benefits established under section 11347 of this

title.

Sec. 215.2 General.

Upon receipt of copies of applications for Federal assistance

subject to 49 U.S.C. 5333(b), together with a request for the

certification of employee protective arrangements from the Department

of Transportation, the Department of Labor will process those

applications, which may be in either preliminary or final form. The

application will describe the proposed

[[Page 34073]]

project in a manner which allows an adequate assessment of its impact,

identify the labor organizations, if any, representing employees of

mass transit providers in the area of the proposed project and describe

what steps, if any, have been taken to develop the required employee

protections.

Sec. 215.3 Employees represented by a labor organization.

(a)(1) If affected employees are represented by a labor

organization, it is expected that where appropriate, protective

arrangements shall be the product of negotiation, pursuant to these

guidelines.

(2) In instances where states or political subdivisions are subject

to legal restrictions on bargaining with employee organizations, the

Department of Labor will utilize special procedures to satisfy the

Federal statute in a manner which does not contravene state or local

law. For example, employee protective terms and conditions, acceptable

to both employee and applicant representatives, may be incorporated

into a resolution adopted by the involved local government.

(b) Upon receipt of an application involving affected employees

represented by a labor organization, the Department of Labor will refer

a copy of the application to that organization and notify the applicant

of referral.

(1) If an application involves only a capital grant for routine

replacement of equipment of like kind and character and/or facilities

of like kind and character, the procedural requirements set forth in

paragraphs 215.3(b)(2) through 215.3(h) of these guidelines will not

apply absent a potentially material effect on employees. Where no such

effect is found, the Department of Labor will certify the application

based on the terms and conditions as referenced in paragraphs

215.3(b)(2) and 215.3(b)(3)(ii) and (iii).

(2) For applicants with previously certified arrangements, the

referral will be based on those terms and conditions.

(3) For new applicants and applicants for which previously

certified arrangements are not appropriate to the current project, the

referral will be based on appropriate terms and conditions specified by

the Department of Labor, as follows:

(i) for operating grants, the terms and conditions will be based on

arrangements similar to those of the Model Agreement (referred to also

as the National Agreement);

(ii) for capital grants other than those for replacement equipment

or facilities referenced in paragraph (b)(1) of this section, the terms

and conditions will be no less protective than those of the Special

Warranty applied pursuant to section 5311; and

(iii) for grants under section 5311, the Special Warranty.

(c) Following referral and notification under paragraph (b) of this

section, and subject to the exceptions defined in Sec. 215.5, parties

will be expected to engage in good faith efforts to reach mutually

acceptable protective arrangements through negotiation within the time

frames designated under paragraphs (d) and (e) of this section.

(d) As part of the Department of Labor's review of an application,

a time schedule for case processing will be established by the

Department of Labor and specified in its referral and notification

letters under Sec. 215.3(b) or subsequent written communications to the

parties.

(1) Parties will be given fifteen (15) days from the date of the

referral and notification letters to submit objections, if any, to the

referred terms. The parties are encouraged to engage in negotiations

during this period with the aim of arriving at a mutually agreeable

solution to objections any party has to the terms and conditions of the

referral.

(2) Within ten (10) days of its receipt of objections, the

Department of Labor will:

(i) determine whether the objections raised are sufficient; and

(ii) take one of the two steps described in paragraphs (d)(5) and

(6) of this section, as appropriate.

(3) The Department of Labor will consider an objection to be

sufficient when:

(i) the objection raises material issues that may require

alternative employee protections under 49 U.S.C. 5333(b); or

(ii) the objection concerns changes in legal or factual

circumstances that materially affect the rights or interests of

employees.

(4) The Department of Labor will consult with the Federal Transit

Administrator for technical advice as to the validity of objections.

(5) If the Department of Labor determines that there are no

sufficient objections, the Department will issue its certification to

the Federal Transit Administrator.

(6) If the Department of Labor determines that an objection is

sufficient, the Department, as appropriate, will direct the parties to

commence or continue negotiations, limited to issues that the

Department deems appropriate and limited to a period not to exceed

thirty (30) days. The parties will be expected to negotiate

expeditiously and in good faith. The Department of Labor may provide

mediation assistance during this period where appropriate. The parties

may agree to waive any negotiations if the Department, after reviewing

the objections, develops new terms and conditions acceptable to the

parties. At the end of the designated negotiation period, if all issues

have not been resolved, each party must submit to the Department its

final proposal and a statement describing the issues still in dispute.

(7) The Department will issue a certification to the Federal

Transit Administrator within five (5) days after the end of the

negotiation period designated under paragraph (d)(6) of this section.

The certification will be based on terms and conditions agreed to by

the parties that the Department concludes meet the requirements of 49

U.S.C. 5333(b). To the extent that no agreement has been reached, the

certification will be based on terms and conditions determined by the

Department which are no less protective than the terms and conditions

included in the referral pursuant to paragraphs 215.3(b)(2) and

215.3(b)(3).

(8) Notwithstanding that a certification has been issued to the

Federal Transit Administrator pursuant to paragraph (d)(7) of this

section, no action may be taken which would result in irreparable harm

to employees if such action concerns matters subject to the steps set

forth in paragraph (e) of this section.

(e) If the certification referred to in paragraph (d)(7) of this

section is not based on full mutual agreement of the parties, the

Department of Labor will take the following steps to resolve

outstanding differences:

(1) The Department will set a schedule that provides for final

resolution of the disputed issue(s) within sixty (60) days of the

certification referred to in paragraph (d)(7) of this section.

(2) Within ten (10) days of the issuance of the certification

referred to in paragraph (d)(7) of this section, and after reviewing

the parties' descriptions of the disputed issues, the Department will

define the issues still in dispute and set a schedule for final

resolution of all such issues.

(3) The Department may establish a briefing schedule, usually

allowing no more than twenty (20) days for opening briefs and no more

than ten (10) days for reply briefs, when the Department deems reply

briefs to be beneficial. In either event, the Secretary will issue a

final certification to the Federal Transit Administrator no later than

thirty (30) days after the last briefs are due.

[[Page 34074]]

(4) The Department of Labor will decide the manner in which the

dispute will be resolved. In making this decision, the Department may

consider the form(s) of dispute resolution employed by the parties in

their previous dealings as well as various forms of third party dispute

resolution that may be appropriate. Any dispute resolution proceedings

will normally be expected to commence within thirty (30) days of the

certification referred to in paragraph (d)(7) of this section, and the

Secretary will render a final determination, including the bases

therefor, within thirty (30) days of the commencement of the

proceedings.

(5) The Department will make available final decisions it renders

on disputed issues.

(f) Nothing in these guidelines restricts the parties from

continuing to negotiate over final terms and conditions and seeking a

final certification of an agreement that meets the requirements of the

Act prior to the issuance of a final determination by the Secretary.

(g) If, subsequent to the issuance of the certification referred to

in paragraph (d)(7) of this section, the parties reach an agreement on

one or more disputed issues that meets the requirements of the Act,

and/or the Department of Labor issues a final decision containing

revised terms and conditions, the Department will take appropriate

steps to substitute the new terms and conditions for those previously

certified to the Federal Transit Administrator.

(h) Notwithstanding the foregoing, the Department retains the right

to refuse to issue a certification where circumstances so warrant.

Sec. 215.4 Employees not represented by a labor organization.

(a) The certification made by the Department of Labor will afford

the same level of protection to those employees who are not represented

by labor organizations.

(b) If there is no labor organization representing employees, the

Department of Labor will set forth the protective terms and conditions

in the letter of certification in accordance with Sec. 215.3(b)(2) and

215.3(b)(3).

Sec. 215.5 Processing of amendatory applications.

When an application is supplemental to or revises or amends in

immaterial respects an application for which the Department of Labor

has already certified that fair and equitable arrangements have been

made to protect the interests of mass transit employees affected by the

subject project the Department of Labor will on its own initiative

apply to the supplemental or other amendatory application the same

terms and conditions as were certified for the subject project as

originally constituted. The Department of Labor's processing of these

applications will be expedited.

Sec. 215.6 The Model Agreement.

The Model (or National) Agreement mentioned in paragraph (b)(3)(i)

of section 215.3 refers to the agreement executed on July 23, 1975 by

representatives of the American Public Transit Association and the

Amalgamated Transit Union and Transport Workers Union of America and on

July 31, 1975 by representatives of the Railway Labor Executives'

Association, Brotherhood of Locomotive Engineers, Brotherhood of

Railway and Airline Clerks and International Association of Machinists

and Aerospace Workers. The agreement is intended to serve as a ready-

made employee protective arrangement for adoption by local parties in

specific operating assistance project situations. The Department has

determined that this agreement provides fair and equitable arrangements

to protect the interests of employees in general purpose operating

assistance project situations and meets the requirements of 49 U.S.C.

5333(b).

Sec. 215.7 Department of Labor contact.

Questions concerning the subject matter covered by this part should

be addressed to Statutory Programs, Office of the American Workplace,

U.S. Department of Labor, suite N5411, 200 Constitution Avenue NW.,

Washington, DC 20210; phone number 202-219-4473. (Secretary's Order 2-

93, 58 FR 42578, August 10, 1993.)

[FR Doc. 95-15882 Filed 6-28-95; 8:45 am]

BILLING CODE 4510-86-P