[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]




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Part VII





Department of Labor





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Office of Labor-Management Programs



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29 CFR Part 215



Federal Transit Law Guidelines; Proposed Rule

  Federal Register / Vol. 60, No. 125 / Thursday, June 29, 1995 / 
Proposed Rules  

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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.

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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 

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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. 

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    (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