[Federal Register Volume 60, Number 125 (Thursday, June 29, 1995)]
[Proposed Rules]
[Pages 34072-34074]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-15882]
[[Page 34071]]
_______________________________________________________________________
Part VII
Department of Labor
_______________________________________________________________________
Office of Labor-Management Programs
_______________________________________________________________________
29 CFR Part 215
Federal Transit Law Guidelines; Proposed Rule
Federal Register / Vol. 60, No. 125 / Thursday, June 29, 1995 /
Proposed Rules
[[Page 34072]]
DEPARTMENT OF LABOR
Office of Labor-Management Programs
29 CFR Part 215
RIN 1294-AA14
Guidelines, Section 5333(b), Federal Transit Law
AGENCY: Office of Labor-Management Programs, Office of the American
Workplace, Labor.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
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
