[Federal Register Volume 64, Number 144 (Wednesday, July 28, 1999)]
[Rules and Regulations]
[Pages 40990-40995]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-19111]
[[Page 40989]]
_______________________________________________________________________
Part V
Department of Labor
_______________________________________________________________________
Office of Labor-Management Standards
_______________________________________________________________________
29 CFR Part 215
Amendment to Section 5333(b) Guidelines To Carry Out New Programs
Authorized by the Transportation Equity Act for the 21st Century (TEA
21); Final Rule
Federal Register / Vol. 64, No. 144 / Wednesday, July 28, 1999 /
Rules and Regulations
[[Page 40990]]
DEPARTMENT OF LABOR
Office of Labor-Management Standards
29 CFR Part 215
RIN 1215-AB25
Amendment to Section 5333(b) Guidelines To Carry Out New Programs
Authorized by the Transportation Equity Act for the 21st Century (TEA
21)
AGENCY: Office of Labor-Management Standards, Labor.
ACTION: Final guidelines.
-----------------------------------------------------------------------
SUMMARY: The Department of Labor (the Department) is providing notice
of an amendment to its procedural guidelines for certification of
certain projects of the Department of Transportation, Federal Transit
Administration (FTA), in satisfaction of the requirements of Title 49
U.S.C., Chapter 53, Section 5333(b) (commonly referred to as ``Section
13(c)''). This notice is necessitated by the introduction of three new
programs under the Transportation Equity Act for the 21st Century (TEA-
21), and the need to identify appropriate procedures for the
Department's required certification of employee protections in
connection with these projects.
The section 5333(b) guidelines, as amended, are reprinted in their
entirety in this document for the convenience of the reader. These
guidelines replace those currently published at 29 CFR part 215. For a
discussion of issues raised during the comment process for the earlier
guidelines, see the final guidelines published on December 7, 1995 (60
FR 62964).
DATES: These guidelines become effective August 27, 1999.
FOR FURTHER INFORMATION CONTACT: Kelley Andrews, Director, Statutory
Programs, U.S. Department of Labor, 200 Constitution Avenue, NW, Room
N-5603, Washington, DC 20210; telephone (202) 693-0126; facsimile (202)
693-1342.
SUPPLEMENTARY INFORMATION:
I. Background
The Transportation Equity Act for the 21st Century (TEA-21), signed
into law by President Clinton on June 9, 1998, provides for three new
transportation programs which require employee protections under
section 5333(b). These are the Job Access and Reverse Commute Program
(section 3037), the Over-the-Road Bus Accessibility Program (section
3038), and the State Infrastructure Bank Program (section 1511). As a
condition of the release of Federal funds for these programs,
applicants must comply with section 5333(b), administered under the
Department's mass transit employee protection program. These employee
protections include the preservation of rights, privileges, 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.
For most mass transit programs funded by the FTA, the Department
processes the employee protection certifications required under section
5333(b) in accordance with procedural guidelines published at 29 CFR
215.3. The Department does not apply these procedures to the processing
of section 5310, Elderly and Handicapped grants which do not require
section 5333(b) certification, or section 5311 Non-Urban formula grants
which are specifically exempted from processing under the guidelines.
Section 5311 grants are certified through the application of a warranty
without referral to the affected parties. Other grants are certified
following the referral procedures established in the guidelines
affording the interested parties an opportunity to provide their views
on substantive protections.
The Department's Office of Labor-Management Standards' Notice of
Proposed Rulemaking (NPRM), issued March 30, 1999 (64 FR 15276),
proposed to amend the guidelines to identify the certification
processes which will be applicable for the Job Access and Reverse
Commute Program, the Over-the-Road Bus Accessibility Program, and the
State Infrastructure Bank Program.
Comments addressing the proposed modifications to the guidelines
were submitted by six interested parties. The Department has carefully
reviewed these comments in the context of the amended guidelines to
ensure that the requirements of the statute continue to be satisfied
and that the Department will meet its goal of providing efficient and
predictable certification of employee protections. The Department's
review of the interested parties' comments has not resulted in any
changes to the proposed guideline amendments. However, the specific
points raised by the parties are discussed in Section II, Summary and
Discussion of Comments.
Therefore, for the newly authorized programs under TEA-21, the
Department will provide for processing as follows. For Job Access and
Reverse Commute grants, the Department will differentiate between
grants to applicants serving populations under 200,000 and those
applicants serving populations of 200,000 or more. The Department will
develop procedures and apply appropriate protections without a referral
for ``under 200,000'' grants and will utilize the guidelines procedures
for ``200,000 and over'' grants. For State Infrastructure Bank (SIB)
activities, the Department will develop procedures and ensure that
employees are appropriately protected without a referral for the
initial capitalization of SIBs and will utilize the guidelines
procedures for subsequent projects receiving assistance from the SIB.
Finally, for the Over-the-Road Bus Accessibility Program, the
Department will utilize the guidelines procedures.
II. Summary and Discussion of the Comments
Six comments from various interested parties throughout the transit
industry were submitted and considered.
Comments were received from one public transit provider:
--New Jersey Transit Corporation
Four labor organizations provided comments:
--Amalgamated Transit Union
--Transportation Trades Department, AFL-CIO
--Transportation-Communications International Union
--United Transportation Union
Finally, one public transit association provided comments:
--American Public Transit Association
The Department has carefully reviewed and considered all of the
comments in developing these guidelines. The following provides a
summary of the comments and the Department's response.
A. Job Access Certification Procedures for Applicants Serving
Populations Under 200,000
Two comments supported the Department's proposal not to apply the
existing guidelines procedures for Job Access and Reverse Commute
grants in areas under 200,000. However, they expressed disappointment
that projects for grants to applicants serving populations of 200,000
and over would be covered by the existing guidelines procedures.
Concern was expressed that, because ``non-traditional transportation
providers are going to be
[[Page 40991]]
involved, and given the unique types of transportation services to be
funded under this new program, it is likely that grants will be subject
to inordinate delays under the referral process.'' The Department,
however, does not believe that such non-traditional providers will
experience substantial delays under the certification procedures which
were put in place in 1996. The Department's existing procedures provide
for certifications to be issued within 60 days after referral of a
grant application.
Four comments opposed the Department's proposed procedures for
processing Job Access and Reverse Commute grants for applicants serving
populations under 200,000. One comment indicated that there was no
basis in the statute or the legislative history to justify a warranty
procedure for Job Access and Reverse Commute Program grants to
applicants serving populations under 200,000. Another indicated that
the Department's expectation that this program will have a greater
impact on employees of larger transit systems does not justify its
proposal not to apply the existing guidelines to grants serving
populations under 200,000. It was suggested that the existing
procedures should be applicable to the Job Access and Reverse Commute
grants serving populations under 200,000 because ``the Department
already acknowledges that the existing Section 13(c) guidelines are the
appropriate means by which to certify employee protective terms for
grants disbursed to urbanized areas with populations under 200,000 who
receive ``pass-through'' funds from their respective states.''
The Job Access program established under TEA-21 distinguishes
between grants serving differing populations by requiring that
Metropolitan Planning Organizations will select applicants in areas
serving populations of 200,000 or greater, and the states will select
applicants in areas with populations under 200,000. Section 3037(j) of
TEA-21 specifies that ``[a] grant under this section shall be subject
to . . . all of the terms and conditions to which a grant made under
section 5307 of title 49, United States Code, is subject''. However,
neither the statute nor the legislative history for the Job Access and
Reverse Commute Program specify how such grants are to be processed.
Therefore, the Department has flexibility to develop and implement
procedures appropriate to carry out its section 5333(b)
responsibilities. In addition, with regard to ``pass-through'' grants,
the legislative history indicates that negotiations are the appropriate
process for the development of protections for application to those
grants.
The Job Access and Reverse Commute grants serving populations under
200,000 will have much in common with grants processed under the
section 5311 small urban and rural transportation program. For example,
both types of grants will be selected and administered through the
States and many grants will be made to non-traditional transportation
providers. Because grants serving populations of under 200,000 are less
likely to interface with traditional transportation providers which
tend to be represented by organized labor, the Department believes it
is not necessary to use a referral process here. Accordingly, the
Department believes there is adequate justification for utilizing a
process which does not require a referral for certification of Job
Access and Reverse Commute Program grants to applicants serving
populations under 200,000. The Department will ensure that the
protections applied to Job Access and Reverse Commute grants serving
populations under 200,000 satisfy the requirements of section 5333(b).
Several comments assumed that the Department would process Job
Access and Reverse Commute grants for applicants serving populations
under 200,000 using the warranty certification process applicable to
non-urban formula grants. As noted in the NPRM, the Department intends
to ``establish procedures similar to those for section 5311(f).''
(Emphasis added.) Another comment noted that ``the Department intends
to apply as yet unspecified arrangement(s)'' but ``the proposed
amendment to the Section 5333(b) guidelines fails to include any
discussion and/or provisions prescribing how such an arrangement would
be established.''
The Department has the authority and responsibility to develop
appropriate procedures and statutorily sufficient protective
arrangements for the section 5333(b) certification program. These may
need to be adjusted periodically to reflect developments in transit
programs, including the Job Access and Reverse Commute program, or to
formulate the necessary terms and conditions for specific projects. The
Department must retain the flexibility to apply appropriate protections
in the circumstances presented. Therefore, it is not appropriate to
publish the protective arrangements which will be applied for grants
under this program.
The Department will establish appropriate procedures for processing
of ``under 200,000'' Job Access and Reverse Commute grants similar to
those for section 5311(f) grants, coordinating with the Federal Transit
Administration on mass transit issues, issues relating to the interface
of our procedures, and various issues relating to the applications
themselves.
B. State Infrastructure Bank Certification Procedures
One comment indicated that, in addition to the initial
capitalization, the SIB program should be administered through ``more
flexible and streamlined warranty procedures in lieu of the lengthy
referral process'' for grants made subsequent to the initial
capitalization. The Department, however, anticipates that many of the
projects assisted by the SIBs will be similar to projects currently
requiring certification under the existing guidelines procedures.
Accordingly, the existing certification process is appropriate for SIB
projects and it will not unduly burden the efficient delivery of
program services.
One comment indicated that the proposed guidelines did not make it
sufficiently clear that transit projects receiving assistance
subsequent to a SIB capitalization would be subject to the referral
procedures under section 215.3. Another comment noted that the initial
capitalization might also include specific projects which should be
processed in accordance with the existing guidelines procedures. These
comments suggested that the final guidelines be amended to address
these issues. The Department, however, does not believe that such
modifications are necessary. As drafted, the amended guidelines only
exempt from the existing procedures those grants which capitalize SIB
accounts. If a specific project were to be applied for at the same time
as the capitalization grant, the Department would apply the
certification procedures of the existing guidelines for that project.
It was also suggested that the Department include in its guidelines
``the procedures and/or standards to be applied for developing the
`standard protections' for initial SIB capitalization grants where no
specific projects are identified.'' As previously indicated, the
Department has the authority and responsibility to develop appropriate
procedures and statutorily sufficient protective arrangements, and
these may need to be adjusted periodically to reflect developments in
transit programs, including the SIB program. In order for the
Department to retain the flexibility necessary in the circumstances
presented, it is not appropriate to publish the specific language which
will be applied for SIB
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capitalization grants. The Department will certify initial
capitalization grants made by FTA to the SIBs by specifying that the
SIB may not release funds for specific projects in the absence of a
subsequent certification for those projects.
As with other programs, the Department will establish appropriate
procedures for processing of SIB capitalization grants, coordinating
with the Federal Transit Administration on issues relating to the
interface of our procedures and various issues relating to the
applications themselves.
C. Second and Subsequent Generations of Funds Under the State
Infrastructure Bank Program
One comment indicated that SIB ``funds are repaid to the state
account from non-federal sources after their first use, which means the
federal nexus becomes attenuated and there remains no real basis for
ongoing application of federal DOL Guidelines--which at that point
should no longer apply.'' Another comment, however, noted that
``Section 1511(h)(2)(i)(2) [of TEA-21] mandates the application of
Section 5333(b) requirements . . . to transit projects assisted by
`repayments' to the SIB resulting from any financial transactions
undertaken by the bank.'' That comment indicated that ``[t]he
Department's final regulation should acknowledge and incorporate these
obligations for so-called `second generation' grants to insure the
proper application of transit employee protections to all transit
projects assisted by an infrastructure bank.''
TEA-21 does specify that ``[t]he requirements of titles 23 and 49,
United States Code, shall apply to repayments from non-Federal sources
to an infrastructure bank from projects assisted by the bank. Such a
repayment shall be considered to be Federal funds.'' It is not
necessary to modify the Department's proposed amendment to address
either of these comments. The Department will include language in its
certifications for the capitalization of SIBs which ensures that the
requirements of TEA-21 with respect to second and subsequent
generations of funds are appropriately satisfied.
D. Over-the-Road Bus Accessibility Program
Two comments expressed support for the Department's proposed
certification approach for processing grants under the Over-the-Road-
Bus Accessibility Program. Another comment, however, indicated that
``the Secretary of Labor appears to have the authority to waive section
5333(b) certification requirements'' for the program, and recommended
that the final rule address this authority.
In addressing the Over-the-Road-Bus Accessibility Program, section
3038(f) of TEA-21 provides that ``[a] grant under this section shall be
subject to all of the terms and conditions applicable to subrecipients
who provide intercity bus transportation under section 5311(f) of title
40, United States Code, and such other terms as the Secretary [of
Transportation] may prescribe.'' This language establishes that the
requirements of section 5333(b) must be applied for Over-the-Road-Bus
Accessibility Program grants, but neither the statute nor the
legislative history specify the procedures for processing these grants.
Therefore, the Department has flexibility to develop and implement
procedures appropriate to carry out its section 5333(b)
responsibilities. Section 5311(j) provides that ``the Secretary of
Labor may waive the application of section 5333(b)'' for projects under
section 5311. However, the criteria for such a waiver requires that
``there are no employees of the Recipient or of any other public
transportation providers in the transportation service area of the
Project who could be potentially affected.'' The Department believes it
is unlikely that intercity bus services would meet that criteria.
Therefore, the Department did not include waiver procedures for this
program.
III. Regulatory Procedures
Executive Order
This final rule has been drafted and reviewed in accordance with
Executive Order 12866, section 1(b), Principles of Regulation. The
Department has determined that this rule is not a ``significant
regulatory action'' under Executive Order 12866, section 3(f),
Regulatory Planning and Review. Accordingly, it does not require an
assessment of potential costs and benefits under section 6(a)(3) of
that order.
Regulatory Flexibility Act
This final rule addresses the procedural steps for obtaining the
Department's certification that employee protection arrangements under
the Federal Transit law are in place as required for three new programs
funded under TEA-21. The amendment will not have a significant economic
impact on a substantial number of small entities. Therefore, a
regulatory flexibility analysis under the Regulatory Flexibility Act (5
U.S.C. 605(b)) is not required. The Assistant Secretary for Employment
Standards has certified to this effect to the Chief Counsel for
Advocacy of the Small Business Administration.
Unfunded Mandates Reform
Executive Order 12875--This rule will not create an unfunded
Federal mandate upon any State, local or tribal government.
Unfunded Mandates Reform Act of 1995--This rule will not include
any Federal mandate that may result in increased expenditures by State,
local, and tribal governments, in the aggregate, of $100 million or
more, or in increased expenditures by the private sector of $100
million or more.
Paperwork Reduction Act
These guidelines contain no information collection requirements for
purposes of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et
seq.).
Small Business Regulatory Enforcement Fairness Act of 1996
A. This rule is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Fairness Act of 1996. This rule
will not result in an annual effect on the economy of $100,000,000 or
more; a major increase in costs or prices; or significant adverse
effects on competition, employment, investment, productivity,
innovation, or on the ability of the United States-based companies to
compete with foreign-based companies in domestic and export markets.
B. Consistent with the Small Business Regulatory Enforcement
Fairness Act of 1996, the Department will submit to Congress a report
regarding the issuance of today's final rule prior to the Effective
Date set forth in the outset of this document. The report will note the
Office of Management and Budget's determination that this rule does not
constitute a ``major rule'' under that Act. 5 U.S.C. 801, 805.
List of Subjects in 29 CFR Part 215
Grant administration; Grants--transportation; Labor-management
relations; Labor unions; Mass transportation.
Accordingly, Part 215 in Chapter II of Title 29 of the Code of
Federal Regulations is amended by removing the last sentence in
paragraph (a)(3) of Sec. 215.3, by adding a new paragraph (a)(4) in
Sec. 215.3 to read as set forth below, and by revising Sec. 215.8 to
read as set forth below. For the convenience of the reader, the entire
part is being republished in full.
[[Page 40993]]
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 The Special Warranty
215.8 Department of Labor contact.
Authority: Secretary's Order No. 5-96, 62 FR 107, January 2,
1997.
PART 215--GUIDELINES, SECTION 5333(b), FEDERAL TRANSIT LAW
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 11326 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
Federal Transit Administration will provide the Department with the
information necessary to enable the Department to certify the project.
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/discussion, 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.
(3) If an application involves a grant to a state administrative
agency which will pass assistance through to subrecipients, the
Department of Labor will refer and process each subrecipient's
respective portion of the project in accordance with this section. If a
state administrative agency has previously provided employee
protections on behalf of subrecipients, the referral will be based on
those terms and conditions.
(4) These procedures are not applicable to grants under section
5311; grants to applicants serving populations under 200,000 under the
Job Access and Reverse Commute Program; or grants to capitalize SIB
accounts under the State Infrastructure Bank Program.
(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) or 215.3(b)(3)(ii).
(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, the terms and conditions will be based on
arrangements similar to those of the Special Warranty applied pursuant
to section 5311.
(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/discussion
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 paragraph 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/
discussions 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 the date for submitting 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 may materially affect the rights or interests of
employees.
(4) The Department of Labor will consult with the Federal Transit
[[Page 40994]]
Administration 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 Administration.
(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/discussions, 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/discuss
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/discussions if the Department,
after reviewing the objections, develops new terms and conditions
acceptable to the parties. At the end of the designated negotiation/
discussion 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 Administration within five (5) days after the end of the
negotiation/discussion 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 Secs. 215.3(b)(2) and
215.3(b)(3).
(8) Notwithstanding that a certification has been issued to the
Federal Transit Administration 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 Department will issue a
final certification to the Federal Transit Administration no later than
thirty (30) days after the last briefs are due.
(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
Department 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/discuss 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 Department.
(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 Administration.
(h) Notwithstanding the foregoing, the Department retains the right
to withhold certification where circumstances inconsistent with the
statute so warrant until such circumstances have been resolved.
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.
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 Sec. 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 The Special Warranty.
The Special Warranty mentioned in paragraph (b)(3)(ii) of
Sec. 215.3 refers to the protective arrangements developed for
application to the small urban and rural program under section 5311 of
the Federal Transit statute. The warranty arrangement represents the
understandings of the Department of Labor and the Department of
[[Page 40995]]
Transportation, reached in May 1979, with respect to the protections to
be applied for such grants. The Special Warranty provides fair and
equitable arrangements to protect the interests of employees and meets
the requirements of 49 U.S.C. 5333(b).
Sec. 215.8 Department of Labor contact.
Questions concerning the subject matter covered by this part should
be addressed to Director, Statutory Programs, U.S. Department of Labor,
Suite N5603, 200 Constitution Avenue, N.W., Washington, DC 20210; phone
number 202-693-0126.
Signed at Washington, DC this 21st day of July, 1999.
Bernard E. Anderson,
Assistant Secretary for Employment Standards.
[FR Doc. 99-19111 Filed 7-27-99; 8:45 am]
BILLING CODE 4510-27-P
