(a)(1) If affected employees are represented by a labor
organization, it is expected that where appropriate, protective
arrangements shall be the product of negotiation/discussion, pursuant
to these guidelines.
(2) In instances where states or political subdivisions are subject
to legal restrictions on bargaining with employee organizations, the
Department of Labor will utilize special procedures to satisfy the
Federal statute in a manner which does not contravene state or local
law. For example, employee protective terms and conditions, acceptable
to both employee and applicant representatives, may be incorporated
into a resolution adopted by the involved local government.
(3) If an application involves a grant to a state administrative
agency which will pass assistance through to subrecipients, the
Department of Labor will refer and process each subrecipient's
respective portion of the project in accordance with this section. If a
state administrative agency has previously provided employee
protections on behalf of subrecipients, the referral will be based on
those terms and conditions.
(4) These procedures are not applicable to grants under section
5311; grants to applicants serving populations under 200,000 under the
Job Access and Reverse Commute Program; or grants to capitalize SIB
accounts under the State Infrastructure Bank Program.
(b) Upon receipt of an application involving affected employees
represented by a labor organization, the Department of Labor will refer
a copy of the application to that organization and notify the applicant
of referral.
(1) If an application involves only a capital grant for routine
replacement of equipment of like kind and character and/or facilities
of like kind and character, the procedural requirements set forth in
paragraphs 215.3(b)(2) through 215.3(h) of these guidelines will not
apply absent a potentially material effect on employees. Where no such
effect is found, the Department of Labor will certify the application
based on the terms and conditions as referenced in paragraphs
215.3(b)(2) or 215.3(b)(3)(ii).
(2) For applicants with previously certified arrangements, the
referral will be based on those terms and conditions.
(3) For new applicants and applicants for which previously
certified arrangements are not appropriate to the current project, the
referral will be based on appropriate terms and conditions specified by
the Department of Labor, as follows:
(i) For operating grants, the terms and conditions will be based on
arrangements similar to those of the Model Agreement (referred to also
as the National Agreement);
(ii) For capital grants, the terms and conditions will be based on
arrangements similar to those of the Special Warranty applied pursuant
to section 5311.
(c) Following referral and notification under paragraph (b) of this
section, and subject to the exceptions defined in Sec. 215.5, parties
will be expected to engage in good faith efforts to reach mutually
acceptable protective arrangements through negotiation/discussion
within the time frames designated under paragraphs (d) and (e) of this
section.
(d) As part of the Department of Labor's review of an application,
a time schedule for case processing will be established by the
Department of Labor and specified in its referral and notification
letters under paragraph 215.3(b) or subsequent written communications
to the parties.
(1) Parties will be given fifteen (15) days from the date of the
referral and notification letters to submit objections, if any, to the
referred terms. The parties are encouraged to engage in negotiations/
discussions during this period with the aim of arriving at a mutually
agreeable solution to objections any party has to the terms and
conditions of the referral.
(2) Within ten (10) days of the date for submitting objections, the
Department of Labor will:
(i) Determine whether the objections raised are sufficient; and
(ii) Take one of the two steps described in paragraphs (d)(5) and
(6) of this section, as appropriate.
(3) The Department of Labor will consider an objection to be
sufficient when:
(i) The objection raises material issues that may require
alternative employee protections under 49 U.S.C. 5333(b); or
(ii) The objection concerns changes in legal or factual
circumstances that may materially affect the rights or interests of
employees.
(4) The Department of Labor will consult with the Federal Transit
Administration for technical advice as to the validity of objections.
(5) If the Department of Labor determines that there are no
sufficient objections, the Department will issue its certification to
the Federal Transit Administration.
(6) If the Department of Labor determines that an objection is
sufficient, the Department, as appropriate, will direct the parties to
commence or continue negotiations/discussions, limited to issues that
the Department deems appropriate and limited to a period not to exceed
thirty (30) days. The parties will be expected to negotiate/discuss
expeditiously and in good faith. The Department of Labor may provide
mediation assistance during this period where appropriate. The parties
may agree to waive any negotiations/discussions if the Department,
after reviewing the objections, develops new terms and conditions
acceptable to the parties. At the end of the designated negotiation/
discussion period, if all issues have not been resolved, each party
must submit to the Department its final proposal and a statement
describing the issues still in dispute.
(7) The Department will issue a certification to the Federal
Transit Administration within five (5) days after the end of the
negotiation/discussion period designated under paragraph (d)(6) of this
section. The certification will be based on terms and conditions agreed
to by the parties that the Department concludes meet the requirements
of 49 U.S.C. 5333(b). To the extent that no agreement has been reached,
the certification will be based on terms and conditions determined by
the Department which are no less protective than the terms and
conditions included in the referral pursuant to Secs. 215.3(b)(2) and
215.3(b)(3).
(8) Notwithstanding that a certification has been issued to the
Federal Transit Administration pursuant to paragraph (d)(7) of this
section, no action may be taken which would result in irreparable harm
to employees if such action concerns matters subject to the steps set
forth in paragraph (e) of this section.
(e) If the certification referred to in paragraph (d)(7) of this
section is not based on full mutual agreement of the parties, the
Department of Labor will take the following steps to resolve
outstanding differences:
(1) The Department will set a schedule that provides for final
resolution of the disputed issue(s) within sixty (60) days of the
certification referred to in paragraph (d)(7) of this section.
(2) Within ten (10) days of the issuance of the certification
referred to in paragraph (d)(7) of this section, and after reviewing
the parties' descriptions of the disputed issues, the Department will
define the issues still in dispute and set a schedule for final
resolution of all such issues.
(3) The Department may establish a briefing schedule, usually
allowing no more than twenty (20) days for opening briefs and no more
than ten (10) days for reply briefs, when the Department deems reply
briefs to be beneficial. In either event, the Department will issue a
final certification to the Federal Transit Administration no later than
thirty (30) days after the last briefs are due.
(4) The Department of Labor will decide the manner in which the
dispute will be resolved. In making this decision, the Department may
consider the form(s) of dispute resolution employed by the parties in
their previous dealings as well as various forms of third party dispute
resolution that may be appropriate. Any dispute resolution proceedings
will normally be expected to commence within thirty (30) days of the
certification referred to in paragraph (d)(7) of this section, and the
Department will render a final determination, including the bases
therefor, within thirty (30) days of the commencement of the
proceedings.
(5) The Department will make available final decisions it renders
on disputed issues.
(f) Nothing in these guidelines restricts the parties from
continuing to negotiate/discuss over final terms and conditions and
seeking a final certification of an agreement that meets the
requirements of the Act prior to the issuance of a final determination
by the Department.
(g) If, subsequent to the issuance of the certification referred to
in paragraph (d)(7) of this section, the parties reach an agreement on
one or more disputed issues that meets the requirements of the Act,
and/or the Department of Labor issues a final decision containing
revised terms and conditions, the Department will take appropriate
steps to substitute the new terms and conditions for those previously
certified to the Federal Transit Administration.
(h) Notwithstanding the foregoing, the Department retains the right
to withhold certification where circumstances inconsistent with the
statute so warrant until such circumstances have been resolved.
