[Federal Register Volume 60, Number 235 (Thursday, December 7, 1995)]
[Rules and Regulations]
[Pages 62964-62971]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-29752]
[[Page 62963]]
_______________________________________________________________________
Part III
Department of Labor
_______________________________________________________________________
Office of Labor-Management Programs
_______________________________________________________________________
29 CFR Part 215
Guidelines, Section 5333(b), Federal Transit Law; Final Rule
Federal Register / Vol. 60, No. 235 / Thursday, December 7, 1995 /
Rules and Regulations
[[Page 62964]]
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: Final guidelines.
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SUMMARY: The Federal Transit law, Title 49 U.S.C., Chapter 53,
provides, in general, at Section 5333(b) (commonly referred to as
``Section 13(c)'', that, as a condition of certain Federal financial
assistance by the Department of Transportation's Federal Transit
Administration (FTA) in financing mass transportation systems, fair and
equitable arrangements must be made, as determined by the Department of
Labor (the Department), to protect the interests of employees affected
by such assistance. In conjunction with the Department's role in making
such determinations, the Department is providing information concerning
its procedures for processing applications for assistance under the
Federal Transit Law, and certification by the Department of acceptable
protective arrangements.
DATES: These Guidelines become effective January 8, 1996.
FOR FURTHER INFORMATION CONTACT: Kelley Andrews, Director, Statutory
Programs, U.S. Department of Labor, 200 Constitution Avenue, NW., Room
N-5411, Washington, DC 20210, (202) 219-4473.
SUPPLEMENTARY INFORMATION:
I. Background
Section 5333(b) of the Federal Transit law 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, 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. In
administering this program, the Department 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. These
new guidelines replace guidelines which have been in effect since May
1, 1978.
The Department's Office of Labor-Management Programs' Notice of
Proposed Rulemaking (NPRM), issued June 29, 1995 (FR Vol. 60, No. 125,
pg. 34072), proposed to change the procedures for certifying employee
protective arrangements which are required as a condition of assistance
under the Federal Transit law, in order to expedite the process and
make it more predictable to the parties.
Approximately 85% of the Department's certifications in the past
five years have been issued within 90 days of the date they were
received from FTA. The processing time for the remaining 15%, however,
has been less predictable. The Department's objective in revising its
procedures is to enhance the efficiency and predictability of the
certification process for all transit grant applications while assuring
that the required employee protections are in place. Where comments
were submitted which supported this objective, the guidelines have been
revised, as appropriate, to reflect the comments, and are discussed
under Section II, Summary and Discussion of Comments.
Numerous comments were submitted which relate in a general way to
the Department's administration of this employee protection program.
The guidelines were said to contain loopholes which would undermine the
effort to establish and meet deadlines for certification, create new
legal standards resulting in a more arbitrary and time-consuming
process, and establish protections and confer authority on the
Department which exceed the statute.
The Department has carefully reviewed the new guidelines with these
comments very much in mind to assure that its appropriate statutory
mandate will be fulfilled, without creating unnecessary ``loopholes''
or legal standards which would result in a more arbitrary or time
consuming process. Because the statute itself requires the Department
to exercise discretion and flexibility in determining what is fair and
equitable, the guidelines must also provide an appropriate level of
flexibility. Where appropriate, the guidelines have been changed to
reflect these concerns and in other instances, where no change was
deemed necessary, the specific points raised are also discussed in
Section II, Summary and Discussion of Comments.
The Department has also made a minor adjustment of a technical
nature to Sec. 215.2. This section, which addresses the required
documentation to be included in the grant application, has been
modified to reflect that the content of the grant application is as
determined by the FTA. The Department is not requesting any information
for processing of the grant that is not required by the FTA.
The new guidelines differ from the previous guidelines and the
Department's practice by establishing strict time frames for the
certification of protections in a more expeditious and predictable
manner. The procedures established by these guidelines will assure that
the required protections can be certified, within sixty days after the
initiation of processing by the Department, permitting the release of
the Federal transit grant funds.
The new guidelines continue to encourage local negotiations or
discussions for the development of employee protection terms. The
guidelines, in recognition of the fact that there are some states where
bargaining is prohibited for public employees, allow for ``discussion''
where necessary to satisfy the Federal Transit law in a manner that
does not violate state or local law.
The guidelines also eliminate referral of applications when the
grant is for routine replacement of equipment and/or facilities of like
kind and character. In cases where referral to the unions is
appropriate, the referral will include the intended terms of
certification. The parties will be given 15 days from the date of the
referral to submit objections, if any, to the referral terms. The
Department will Determine within 10 days thereafter whether objections
are sufficient. Should the Department find that the objections are not
sufficient, the Department will issue its certification on the terms
specified in the referral. When objections are found to be sufficient,
negotiations may proceed and the Department may provide technical and
mediatory assistance where appropriate. In the event the protections
cannot be agreed to within 60 days from the original referral date, the
Department will issue an interim certification, permitting the release
of Federal transit grant funds. In the event that the parties are still
not able to resolve their differences within 60 days after the
Department has issued the interim certification, the Department will
set forth the protective terms in a final certification.
[[Page 62965]]
Finally, it seems clear from the comments received that several
parties are concerned about and wish to discuss and resolve a number of
substantive issues relating to this program. While this is an important
matter, these are procedural guidelines and thus not the appropriate
forum for the resolution of such substantive rather than procedural
issues. The Department's policies on substantive issues are generally
addressed through certifications and are discussed in the Department's
determination letters.
II. Summary and Discussion of the Comments
Twenty comments were submitted and considered, including one from a
private individual.
Two comments were received from the following public transit
authorities and planning organizations:
--Northern Illinois Regional Transportation Authority
--Metropolitan Transit Commission, Oakland, CA
Twelve comments were received from the following public transit
providers:
--Central Arkansas Transit Authority
--New York City Department of Transportation
--Metropolitan Transit Authority, New York, NY
--Triangle Transit Authority, Research Triangle Park, NC
--Public Works Office/Transit, Johnson County KS
--StarTran, Lincoln, NE
--Washington Metropolitan Area Transit Authority
--Los Angeles County Metropolitan Transit Authority
--Regional Transportation Commission, Clark County, NV
--New Jersey Transit Corporation
--North County Transit District, Oceanside, CA
--Metropolitan Atlanta Rapid Transit Authority
One comment was received from a state department of transportation:
--State of Michigan, Department of Transportation
Three labor organizations provided comments:
--Amalgamated Transit Union
--Transportation Trades Department, AFL-CIO
--Transport Workers Union of America
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. Definition of ``Irreparable Harm''
One comment indicated that the safeguard against irreparable harm
to employees in Sec. 215.3(d)(8) pending completion of the special
dispute resolution process is an essential protection which should be
included in the guidelines. Others, however, suggested that the
language concerning irreparable harm would add a new substantive
protection under section 5333(b), which they view as providing a
``remedial scheme to provide compensation'' when employees are affected
by a project.
Section 5333(b), requires more than providing compensation for
impacts upon employees. It is also intended to minimize the impact of
Federal projects on employees. The restriction against causing
``irreparable harm'' in Sec. 215.3(d)(8), however, is limited solely to
any action 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.'' (Emphasis added.) In specifying that
no action may be taken which would result in irreparable harm, the
Department intends for the recipient of funds to be able to take any
necessary action that will not irreparably harm employees while
allowing a project to move forward. The minimal restriction would
remain in effect only until final terms and conditions are determined
and certified.
B. Definition of ``Material Effect''
The Sec. 215.3(b)(1) provision with respect to ``material effect''
states that the procedural requirements of Sec. 215.3(b)(2) through
Sec. 215.3(h) will not apply ``absent a potentially material effect on
employees.'' One comment indicated that the phrase ``material effect on
employees'' should be limited in its scope to material adverse effects
on employees so that if a project for routine replacement of equipment
and/or facilities of like kind and character has a positive effect on
employees, no referral would be required. Impacts, however, may be
viewed by some individuals as positive while others view the same
effect as contrary to their interests. Therefore, no adjustment need be
made to accommodate this concern.
One comment noted that ``[i]t is not clear whether the substantive
determination of materiality (material effect on employees) is to be a
subjective judgment of the Department or a legal determination based on
specific standards or precedents.'' The Department, however, will
consult with FTA, where necessary, and will determine which projects
have a ``potentially material effect on employees'' based on available
applicable precedent and policy.
C. Definition of the Phrase ``Where Circumstances So Warrant''
Several comments were made indicating that the phrase ``where
circumstances so warrant'' in Sec. 215.3(h) enables the Department to
retain the right to withhold certification at its discretion. One saw
this as an expansion of the language of the law which would give the
Department ``veto authority over the release of grant funds.'' The
Department intends the phrase ``where circumstances so warrant'' to
mean that certification will not be issued where circumstances
inconsistent with the statute prevent the Department from certifying.
For instance, in a situation involving the Metropolitan Atlanta Rapid
Transit Authority (MARTA) in Georgia, the Department was unable to
certify grants for a short time because state law prohibited MARTA from
providing the requisite protections. Accordingly, given that at least
one comment indicated this is an expansion of the current law, the
Department will clarify the intent of this language by amending
Sec. 215.3(h) of the guidelines to read: ``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.''
D. Definition of ``Sufficient'' as Applied to Objections to
Certification
In Sec. 215.3(d)(2)(i), the guidelines provide that the Department
will ``determine whether the objections raised are sufficient'' when
one party objects to terms and conditions proposed by the Department as
the basis for certification of a project. In Sec. 215.3(d)(3), the
guidelines set forth the criteria which the Department will consider in
determining whether an objection will be considered sufficient.
Comments indicated concern that the transit agencies would not be
given the same opportunity as would be provided to the employees to
object to the referred terms and conditions, citing as an example where
it believed that existing protections include provisions that are no
longer legally required or that are burdensome. Such objections, if
raised by the transit agencies, would require the Department to make a
determination as to whether they are sufficient. The definition does
not favor either party over the other.
[[Page 62966]]
Another comment indicated that, in order to avoid challenges as to
whether legal or factual circumstances have changed, the Department
should modify Sec. 215.3(d)(3) so that it will consider an objection to
be sufficient when: (ii) the objection ``concerns legal or factual
issues relating to the terms proposed to be certified that may
materially affect the rights or interests of employees.'' The current
proposed language requires that the Department consider an objection to
be sufficient when: (ii) the objection concerns changes in legal or
factual circumstances that materially affect the rights or interests of
employees.
In response to this comment, the Department has determined that
there is a need to clarify Sec. 215.3(d)(3)(ii) and accordingly we have
added the word ``may'' before ``materially affect.''
E. Definition of the Term ``Appropriate'' in Sec. 215.3(b)(3)
One comment noted that this section sets forth procedures where
there is a new applicant or where the previous arrangements are ``not
appropriate to the current projects'' without providing guidance as to
what would be considered ``appropriate.'' This section further
specifies that the Department will refer such grants to the parties
based on terms and conditions similar to either the Model Agreement for
operating projects or the Special Warranty for capital projects.
There are several situations in which it would not be appropriate
to refer a project on the basis of previously certified arrangements.
It is not possible to anticipate all the factual circumstances where
the current terms would no longer be appropriate. However, referral on
the basis of existing arrangements is not appropriate in a situation
where the Department is aware that the terms and conditions of the
existing arrangements do not satisfy the conditions of the statute in
the circumstances presented, perhaps because of a change in the state
law or a change in the manner in which the transit system is operated
(e.g., the public body decides to operate services previously provided
through a management company drawing into question how specific
protections required by the statute will be provided). Another
situation might be one in which the parties have, for instance,
negotiated a capital agreement, but have not developed an agreement for
application to operating assistance projects.
F. Standards for Operating and Capital Grants Where Protections Do Not
Already Exist
One comment noted that the ``Model Agreement was developed to
provide a template for parties who wished to use it, but was never
intended to be a 'standard' or 'default' option.'' It was further
suggested that the details of the protective arrangements should be
largely left to the parties. Another comment noted that the proposed
Sec. 215.3(b)(3)(i) references ``terms and conditions similar to those
of the Model Agreement,'' and questioned which ``similar'' terms and
conditions would be specified by the Department. Other questions
included: Will the parties be given the opportunity to negotiate? Will
the Department abrogate a party's right to withdraw from the Model
Agreement?
Although the Model Agreement was not originally developed for
application to all operating assistance grants, the agreement has been
certified as meeting the requirements of the statute, and is applied
with the agreement of the parties in the majority of operating
assistance projects. The Department intends to expedite the
certification process by basing its initial referral of operating
assistance grants on terms and conditions similar to those of the Model
Agreement when no other existing arrangement is applicable. As with
referrals for applicants with previously certified arrangements, the
parties will have 15 days from the date of the referral and
notification letters to submit objections to the referred terms. The
parties will be afforded the opportunity to negotiate alternative terms
if the Department determines an objection to be sufficient in
accordance with Sec. 215.3(d)(3).
The Department will not ``abrogate'' the right of any party to
withdraw from the Model Agreement in a timely manner. However, if a
party withdraws from the Model Agreement, referral of the next
operating project involving that party, in accordance with
Sec. 215.3(b)(3)(i), will be based on terms and conditions ``similar''
to the Model Agreement because there will be no previously certified
arrangements ``appropriate to the current project.'' The parties will
then need to negotiate terms and conditions, under the procedures and
timeframes outlined in the guidelines, to substitute for those which
they object to from the Model Agreement.
Another comment suggested that, in order to make the standards for
protections required under capital grants and operating grants conform
with each other, Sec. 215.3(b)(3)(i) should be redrafted to require
that for operating grants, the terms and conditions will be based on
arrangements no less protective than those of the Model Agreement. The
Department has concluded that such consistency could more appropriately
be obtained by including language in Sec. 215.3(b)(3)(ii), which
indicates that ``for capital grants, the terms and conditions will be
based on arrangements similar to those of the Special Warranty applied
pursuant to section 5311.'' This language affords the Department
greater latitude in incorporating the language of prior Departmental
determinations into referrals.
One comment noted that ``one of the paragraphs ((b)(3)(ii)) cited
as being applicable to (b)(1) projects specifically states that it
applies to grants other than those referenced in (b)(1).'' We have
deleted the phrase ``other than those for replacement equipment or
facilities referenced in paragraph (b)(1) of this section,'' from
Sec. 215.3(b)(3)(ii) to clarify that the Special Warranty will be used
for new applicants which apply for routine replacement of equipment
and/or facilities of like kind and character.
Comments also questioned using the Special Warranty as the basis
for certification of capital grants. As with the Model Agreement, the
Special Warranty has been previously certified by the Department as
meeting the requirements of the statute and will serve as a starting
point for the parties to develop protections should sufficient
objections be submitted to the proposed terms. This will expedite the
processing of section 5333(b) certifications while continuing to ensure
the right of the parties to negotiate appropriate protective
arrangements.
G. Interim Certifications Under Sec. 215.3(d)(7)
Several comments noted that the court has held that the Department
does not have the statutory authority to issue conditional
certifications. These comments suggest that the proposed interim
certification would be a conditional certification. The conditional
certifications rejected by the courts in Amalgamated Transit Union v.
Donovan, 767 F.2d 939 (D.C. Cir. 1985), however, were not statutorily
sufficient because they did not ensure that all requirements of the
statute were satisfied prior to certification. In those instances, the
Department had issued certifications which were lacking mandatory terms
and conditions. The interim certification provided for in these
guidelines will fully satisfy the requirements of the statute based
upon
[[Page 62967]]
the information available at the time of certification. Because the
terms of an interim certification will meet all the requirements of the
statute, the interim certification does not constitute a
``conditional'' certification.
Other comments suggested that the receipt of Federal funds may
affect a transit system's ability to later challenge different
certification arrangements if such are subsequently imposed on it by
the Department or that a system may prefer not to accept an interim
certification because different arrangements could later be imposed. In
the Department's view, the vast majority of applicants will benefit
from the expedited certification procedure. The interim certification
allows the transit authority to execute its grant contract with the
FTA, thus avoiding, in certain instances, a potential lapse of funds.
Moreover, the applicants will be aware of the disputed issues and thus
be able to judge any potential liability if a project is implemented
and the Department imposes language in the final certification that
differs from that in the interim certification. In any event, under the
guidelines, final certification will be issued within 60 days of the
interim certification, thus limiting any period of uncertainty for
transit systems.
H. Time Limits Under Sec. 215.3(d)(1) for the Parties To Submit
Objections
Several comments indicated support for the Department's ``progress
towards procedural reform'' and noted that strict time limits for
processing and issuance of certifications ``would truly expedite the
grant application and approval process for many grantees. Still others
commented that ``the proposed changes are consistent with the basic
purposes of 13(c).''
Comments also suggested that there should be consequences if the
Department or the parties fail to act within established timeframes.
The Department recognizes the need to ensure compliance with the
deadlines established in these guidelines. Funding cannot be released
in the absence of a certification that employee protections are in
place since the statute mandates the Department's certification as a
precondition to the release of Federal funds.
If objections by the parties are not timely, the Department will
proceed with certification on the basis proposed in the referral. To
accommodate objections from multiple parties, however, the Department
has made a technical correction to Sec. 215.3(d)(2) to indicate that a
determination regarding the sufficiency of objections will be made
within 10 days of the date for submitting objections.
I. Procedures Under Sec. 215.3(b)(1) for Routine Replacement of
Equipment and/or Facilities of Like Kind and Character Exempting These
From Referral
Section 215.3(b)(1) of the proposed guidelines specifies that
grants for routine replacement of equipment and/or facilities of like
kind and character will be certified without a referral to labor
organizations absent a potentially material effect on employees.
Several comments were made in support of this proposal. One comment
indicated that eliminating the referral of applications for grants for
routine replacement of equipment and/or facilities ``would benefit our
agency immediately if approved and implemented.''
One comment ``strongly object[ed] to exempting capital grants for
routine replacement of equipment of like kind and character and/or
facilities of like kind and character from the modified procedural
requirements.'' The comment requested that this exclusion be removed
from the final guidelines and that routine replacement grants be
processed under the modified grant procedures applicable to all other
projects.
Three comments indicated that the proposed guidelines failed to
establish a procedure for the parties to provide positions on the issue
of ``material effect on employees'' to the Department and, also, that
the proposed guidelines did not establish a time frame for the
Department's determination of whether a referral would be made.
It is not necessary for labor organizations to receive referrals of
grants for ``routine replacement'' projects. In instances where no
referral is made, the Department will apply existing protective
arrangements which have been deemed satisfactory for similar projects
in the past. For new applicants seeking ``routine replacement'' capital
items, the Department will apply protections based upon the Special
Warranty. The Department will only proceed with a certification in such
instances where all capital items are clearly ``routine replacement''
items of like kind and character. The Department will consult with the
FTA if necessary to determine whether a grant includes only routine
replacement items.
No opportunity has been provided in the guidelines for input from
the parties with regard to any ``potentially material effect'' on
employees. However, where there is routine replacement of capital
items, which will be used in the same locations and in the same manner
as the original capital items, it is unlikely that there will be an
impact upon employees which would not be covered by the existing
protective arrangements.
Routinely seeking input on this issue from the parties in advance
of the Department's determination would require nearly as much time as
a routine referral. Should the Department deem it necessary, however,
the Department could seek the input of the parties on the issue of
``potentially material effect.''
It is not necessary for the guidelines to include a time frame for
the Department's determination of whether a referral would be made. FTA
is responsible for identifying in its transmittal to the Department
that a grant application is for the purpose of purchasing routine
replacement equipment and/or facilities of like kind and character. If
the information in the grant application is sufficient for the
Department to concur in this designation, the Department will promptly
proceed with its certification, absent a finding of ``potentially
material effect'' pursuant to Sec. 215.3(b)(1). If the information in
the grant application does not support a conclusion that the project is
for routine replacement equipment and/or facilities of like kind and
character, the Department will refer the project to the appropriate
parties in accordance with the procedures in Sec. 215.3(b) within 5
days of receipt from the FTA.
For information purposes only, applications for ``routine
replacement'' items will continue to be transmitted to the labor
organizations representing employees in the service area of the
projects.
J. Procedures for Protective Arrangements as to States That Pass
Through Funds to Subrecipients
Two comments indicate that the Department has previously introduced
policies and procedures for processing of statewide grant applications
which are not reflected in its earlier guidelines. They further suggest
that procedures recently developed by the Department for processing of
grants to States which pass through funds to subrecipients,
particularly to small urban and rural recipients, be reflected in the
new guidelines in a separate section. In response to these comments,
the Department has determined that it would be appropriate to add a new
Sec. 215.3(a)(3) to clarify that protections generally will be provided
by the subrecipients which receive funds through a State administrative
agency.
[[Page 62968]]
Accordingly, the following section has been added:
215.3(a)(3) If an application involves a grant to a state
administrative agency which will pass through assistance 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. These
procedures are not applicable to grants under section 5311.
It was also suggested that the Department should automatically
certify section 5309 (formerly section 3) projects for rural providers
on the basis of the Special Warranty. Under the guidelines, referrals
for rural providers receiving funds under section 5309 will be based
upon terms and conditions similar to those of the Special Warranty,
unless there are previously certified arrangements which have been
applied to the section 5309 projects. However, although the guidelines
at Sec. 215.3(b)(3)(iii) indicated that referrals for projects under
section 5311 (formerly section 18) will be made on the basis of the
Special Warranty, the Department will amend the proposed guidelines to
continue to provide for automatic certification of applications
pursuant to section 5311 for rural providers.
K. Procedure for Dispute Resolution to Determine Terms and Conditions
of Final Certifications, Sec. 215.3(e)(4)
One comment stated that ``[t]he regulations explicitly decline to
establish the manner of dispute resolution by the Department of
Labor.'' Another indicated that Sec. 215.3(e)(4) appears to give the
Department the authority to utilize alternative methods of dispute
resolution, noting that the statute does not allow the Department to
delegate this authority to a third party. Section 215.3(e)(4)
specifically reserves to the Department the sole authority to render
the final determination. The statute does not mandate that the
Department use a specific dispute resolution procedure.
L. Protections for Employees Not Represented by a Labor Organization
One comment indicated that Sec. 215.4 improperly expands the
protections afforded to employees not represented by a labor
organization by affording such employees ``the same protections'' as
those afforded to employees represented by a labor organization rather
than ``substantially the same protections.''
The concerns raised by this comment that rights have been expanded
have been clarified by amending the language in Sec. 215.4(b) to
eliminate any reference to the terms and conditions authorized in
Sec. 215.3(b). Instead, Sec. 215.4(b) will provide, as in the prior
guidelines, that the protective terms and conditions in the letter of
certification will be set forth by the Department. There is no
expansion of rights provided in these guidelines.
M. Procedures for Processing Amendatory Grant Applications
One comment suggested that ``[t]he special processing exemption for
'amendatory applications' in Sec. 215.3(c) as amplified in Sec. 215.5
should be eliminated in its entirety.'' It argued that, since all
grants are subject to only a 15 day review period for the purpose of
filing any objections, and any grant amendment which revises a project
in only ``immaterial respects'' would not give rise to an objection
considered sufficient under the new procedures, turnaround is expedited
and employee representatives should have the opportunity ``to provide
their views within the narrow time frame specified to ensure that the
agency is fully informed regarding the potential effects of each
project.''
The automatic certification of amendatory grants is limited to
those where changes are immaterial. If there is a change in the scope
of a project, amendatory grants should not and will not be processed
under this expedited procedure. The revised procedures for processing
other grants should not give rise to new procedures for processing of
amendatory grants containing immaterial changes which would have the
potential for delaying their approval. Thus, the suggested changes to
the proposed guidelines are not necessary.
N. Other Comments
1. One comment suggested that the proposed guidelines be withdrawn
because they appear to draw substantial content from union proposed
reforms. Another comment indicated that the ``proposed rule has been
undertaken without the input of the transit industry'' and that State
and local public body transit systems were not involved in the
development of the NPRM. Several comments suggested that the
regulations be withdrawn and that the rulemaking process be undertaken
with greater consideration for the procedures set forth in Executive
Order 12866 which ``provides that interested parties should be involved
prior to issuance of a proposed rule.'' The Department's decision to
provide 30 days rather than 60 days for a comment period was also
raised.
The Department developed language based on concepts favored by both
unions and transit management. As demonstrated by the numerous comments
received from interested parties from across the country, the
rulemaking process in this instance has afforded all the interested
parties with ample opportunity to provide comments and input on the
procedural issues which are the subject of these guidelines.
2. One comment noted that the Department may view these procedures
as ``guidelines'' rather than ``rules.'' The comment further notes that
``rules are binding on parties, including Federal agencies, and subject
to specific rulemaking procedures; in contrast, ``guidelines'' are
generally considered informal in nature and presumably are not binding
on parties.'' There is no statutory authority to issue regulations
under section 5333(b). The guidelines, however, are intended to be
binding in administering this employee protection program.
3. Numerous comments addressed administrative processes followed by
the Department and raised matters concerning the Administrative
Procedures Act. It was suggested that procedural safeguards against
what the parties characterize as ``ex parte contacts'' with labor
representatives in pending matters should be addressed in the
guidelines. Similarly, comments proposed that the guidelines address
how final decisions on disputed issues would be made available under
Sec. 215.3(e)(5) and address the matter of the procedural ability to
have access to and to rely on matters previously ruled upon by the
Department. Finally, comments indicated that the proposed guidelines
did not require the Department to ``articulate the underlying legal
rationale for its decisions'' nor did they provide for meaningful
judicial review for parties who receive an adverse ruling from the
Department.
The Department does not believe that it is appropriate to restrict
contacts with individual parties in the processing of certifications of
employee protections. In processing FTA grant applications, the
Department's role includes providing technical and mediatory assistance
to the parties. As contemplated by the legislative history, the efforts
of the Department are directed toward facilitating an agreement between
the transit authority and the union in order to ensure that the
requirements of the statute are satisfied. During mediation the
Department's
[[Page 62969]]
representative may discuss issues separately with each party, suggest
bases for settlement in an effort to resolve the dispute, and respond
to requests for technical assistance. If the parties do not reach an
agreement and the Department must make a determination of the terms and
conditions upon which a certification will be based, the standard for
communications with the parties shifts to a more formal process, where
outstanding issues are specified and schedules for briefs and
counterbriefs are committed to written instructions. No exploration of
options or issues occurs at this time absent the initiation or consent
of the other party.
Under the guidelines, the Department will take steps pursuant to
Sec. 215.3(e)(5) to assure the parties' access to the final decisions
it renders on disputed issues. The Department will continue to send
copies of its final decisions to the FTA and the affected applicant and
labor organizations. Similarly, the guidelines address the matter of
access to Departmental decisions by making available the Department's
final determinations on disputed issues. In fact, during efforts to
facilitate agreement, these decisions are regularly provided to parties
involved in negotiations when their negotiations have addressed related
subjects.
The parties will continue to be able to rely on previously issued
determinations to the extent that circumstances are similar to those in
the prior determinations. Certifications will continue to be developed
on a case by case basis to ensure that protections are statutorily
sufficient in the circumstances presented by the specific project and
under any applicable state law.
In establishing ``fair and equitable'' protections under the
statute in those circumstances where the parties are unable to reach
agreement, the Department provides the underlying rationale for the
terms and conditions upon which certification is based. The Department
will continue to provide the rationale in these cases to explain the
basis of its decisions to the parties and to facilitate other parties'
efforts to reach agreement in cases where the circumstances are
comparable. In addition, judicial review of the Department's
certification is available to the parties. See, e.g., Amalgamated
Transit Union v. Donovan, 767 F.2d 939 (D.C. Cir. 1985).
4. One comment indicated that the guidelines do not define whether
the ``days'' referred to in the various deadlines means calendar or
business days. The Department intends for the term ``days'' to refer to
calendar days. When a deadline expires on a date that is not a business
day, the deadline will then be considered to be the next business day.
5. One comment suggests that, to minimize legal expenses, the
briefing schedule, if one is adopted, should be shortened and a one-
step process instituted rather than requiring reply briefs. The
guidelines at Sec. 215.3(e)(3) provide for some flexibility in
determining the briefing schedule. In the past, the Department has
typically provided up to 30 days for briefs and for reply briefs, which
were routinely required, up to 10 days. The proposed guidelines specify
``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.'' (Emphasis added.) The guidelines, therefore, already
provide for an expedited process which the Department can accelerate
when appropriate. The guidelines balance the need for an expedited
process with the need for a full disclosure of pertinent information to
facilitate the determination process.
6. One comment requested that the Department address the procedures
for processing claims determinations under the statute. This is not an
appropriate issue to be addressed under these guidelines. These are
procedural guidelines and thus not the appropriate forum for resolution
of such issues.
III. 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 1995 (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 ------ day of --------------,
1995.
Charles L. Smith,
Deputy Assistant Secretary.
Accordingly, 29 CFR Chapter II is 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 The Speciality Warranty.
215.8 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.
[[Page 62970]]
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. These procedures are not applicable to
grants under section 5311.
(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
Secs. 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 Secs. 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 timeframes 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
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.
[[Page 62971]]
(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
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 Statutory Programs, 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. 95-29752 Filed 12-6-95; 8:45 am]
BILLING CODE 4510-86-P
