|
Guidelines for the administration of Department of Labor responsibilities under
Section 5333 (b) of the Federal Transit law, which appear at 29 CFR Part 215,
were published in 1999 to amend and replace 1995 Guidelines. The Supplementary
Information section of the 1995 Guidelines below contains background information
and discussion of comments that may be helpful to the reader.
DEPARTMENT OF LABOR
Office of Labor-Management Standards
29 CFR Parts 215
RIN 1294-AA14
Guidelines, Section 5333(b), Federal Transit Law
Office of Labor-Management Programs,
Office of the American Workplace, Labor.
Final Guidelines.
_________________________________________________________________
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 statute, and certification by the Department of acceptable
protective arrangements.
These Guidelines become effective
January 8, 1996.
Kelley Andrews,
Director, Statutory Programs, U.S. Department of Labor, 200 Constitution Avenue,
NW, Room N-5603, Washington, DC 20210. (202) 693-1182.
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 (Fed. Reg. 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 §
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.
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.
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 § 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 § 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 § 215.3(b)(1) provision with respect to "material effect" states that
the procedural requirements of § 215.3(b)(2) through § 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 § 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 §
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 § 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 § 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.
Another comment indicated that, in order to avoid challenges as to whether
legal or factual circumstances have changed, the Department should modify §
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 § 215.3(d)(3)(ii) and accordingly we have added the word
"may" before "materially affect."
E. Definition of the Term "Appropriate" in § 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 § 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 § 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 § 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,
§ 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 § 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 § 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 § 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 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 § 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 §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 § 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 § 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 § 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 § 215.3(a)(3) to clarify that protections generally will be provided
by the subrecipients which receive funds through a State administrative agency.
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 § 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, § 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 § 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 § 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 § 215.4(b) to eliminate any reference
to the terms and conditions authorized in § 215.3(b). Instead, § 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 § 215.3(c) as amplified in § 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 §
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 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 § 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 determination.
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 § 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.
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.).
Grant administration; Grants -- transportation; Labor-management relations;
Labor unions; Mass transportation.
Signed in Washington, D.C. this ____th day of ___________, 1995.
Deputy Assistant Secretary
Accordingly, 29 CFR Chapter II is amended by revising Part 215 to read as follows:
|
