|November 4, 2008|
Office of Labor-Management Standards (OLMS)
Question and Answers
Section 13(c) is included in the Federal Transit Law, and is located at Section 5333(b) of Title 49 of the U.S. Code (49 U.S.C. § 5333(b)). This Federal statute requires that employee protections, commonly referred to as "protective arrangements" or "Section 13(c) arrangements" must be certified by the Department of Labor and in place, before Federal transit funds can be released to a mass transit provider.
As a general rule, Section 13(c) protects transit employees who may be affected by Federal transit funding. Section 13(c) requires the continuation of collective bargaining rights, and protection of transit employees' wages, working conditions, pension benefits, seniority, vacation, sick and personal leave, travel passes, and other conditions of employment. Section 13(c) also requires paid training or retraining for employees affected by Federal assistance. If a transit employee loses his or her job or is placed in a lower paying job due to Federal funding, Section 13(c) requires that the grant recipient pay a displacement or dismissal allowance to the employee for a period equal to the employee's length of service, not to exceed six years. A displacement allowance pays the difference between the current position and the one from which the employee was removed. A dismissal allowance pays an employee the full wage for the position the employee lost. Section 13(c) does not protect employees from adverse effects that are not caused, directly or indirectly, by Federal funding, such as changes in the volume and character of employment resulting from causes other than the project. The protections applicable to a specific grant are contained in the Section 13(c) arrangements. Copies of these arrangements can be obtained from the transit grant recipient or the employees' union.
If Federal funds are used by a transit provider to acquire another transit entity, the employees of the acquired entity must be assured of continued employment with the new provider. Along with previous rights, privileges, and benefits, the new provider must continue to honor existing collective bargaining rights.
However, the situation is different for an employee of a transit provider that was not acquired with Federal funds who loses his or her job as a result of Federal funding. In this non-acquisition situation, an employee must be given priority of reemployment for any vacant position with any employer under the control of the grant recipient, but is not entitled to an assurance of employment. Such an employee must be paid a displacement allowance, if appropriate. If there are no vacant positions available, the employee is entitled to a dismissal allowance.
Section 13(c) requires the continuation of any collective bargaining rights that were in place when the employer started receiving Federal funds. However, if transit employees did not have the right to bargain collectively at the time their employer began receiving Federal funds, Section 13(c) does not grant that right. Where transit employees do not have the right to bargain collectively, but have the right to meet and confer or present grievances under state law or as an ongoing practice, Section 13(c) mandates that these practices must continue. The Section 13(c) arrangement is not a collective bargaining agreement and does not create a collective bargaining relationship where one does not already exist.
These protections are typically developed and agreed to by the transit employees' representative, union, and the grant applicant. If this agreement meets the requirements of Section 13(c), the Department will certify the protections. The Department only mandates specific protections when the parties are unable to agree, or the negotiated provisions do not satisfy the requirements of Section 13(c). If the transit employees are not represented by a union, the Department certifies a standard "non-union" protective arrangement which can be viewed at the following website: Non-Union Certification Terms. The Department's guidelines describing how the protective arrangements are developed are contained at Part 215 of Title 29 of the Code of Federal Regulations, 29 C.F.R. Part 215, which can be viewed at Transit Employee Protection Guidelines.
The Department usually certifies subsequent grants to the same transit provider based on protective arrangements that are already in place. However, the Department's guidelines allow the parties to change the existing protective arrangements if a party submits an objection that "raises material issues that may require alternative employee protections," or "concerns changes in legal or factual circumstances that may materially affect the rights or interests of employees." 29 C.F.R. § 215.3(d)(3). If the Department finds that an objection is sufficient, it directs the parties to renegotiate the provisions of the protective arrangements that are at issue. The Department will certify the newly negotiated protective arrangements provided they meet the requirements of Section 13(c). If the parties are unable to reach agreement, the Department will determine the appropriate arrangements, after all sides have had the opportunity to submit written views and arguments. See 29 C.F.R. § 215.3(e). [Section 215.3 can be viewed at Transit Employee Protection Guidelines.]
No. However, the parties are encouraged to discuss any issues raised in an objection as soon possible. At the end of the 15-day review period provided for the parties, the Department has up to ten days to consider any objections filed by either party. Although not required by the Department's guidelines, if comments on objections are received by the Department before a response has been issued, the Department may consider those comments in reaching its determination of the sufficiency of the objections.
Section 13(c) requires that the protections apply to all transit employees in the service area of the Federally funded project. Consequently, protective arrangements must be in place for the grantee's employees, those of any contractors of the grantee providing transit services, and those of other mass transit providers in the service area.
Yes. For grantees where neither their employees, nor those of any other transit provider in the service area are represented by a union, Section 13(c) protections are contained in a "non-union" certification developed by the Department of Labor. The "non-union" certification can be viewed at the following website: Non-Union Certification Terms.
For grantees whose employees are represented by a union, substantially equivalent protections must be provided to all non-union employees in the service area.
The service area includes the geographic area over which the project is operated, adjacent areas, and the area whose population is served by the transit project receiving Federal funds. For instance, if a transit system connects or competes with a second transit system, employees of that second system are considered to be in the service area of the project. If a transit system feeds into a facility that serves rail and bus, then the rail and bus employees would be entitled to protections as service area employees. This can result in a transit company or authority providing protective arrangements for employees other than its own, and negotiating such arrangements with union representatives even though it may not bargain collectively with its own employees.
A transit employee who is represented by a union should contact his union representative for a copy of the Section 13(c) arrangements and for guidance as to how to file a claim. If not represented by a union, the employee should be able to obtain a copy of the protective arrangements, as well as a copy of any separate procedures for filing a claim, from the grant recipient. If an employee is unable to obtain a copy of the protective arrangements or other information necessary for filing and processing a claim, the employee should contact the Division of Statutory Programs (ESA/OLMS) of the U.S. Department of Labor, 200 Constitution Avenue, N.W., Washington, D.C. 20210 by phone (202) 693-0126 or by fax at (202)693-1342.
All Section 13(c) arrangements contain provisions to resolve disputes regarding the interpretation, application, and enforcement of the protective arrangements, including disputes regarding the validity of a claim.
Yes. The law requires that Section 13(c) arrangements must be in place and certified by the Department of Labor before Federal transit funds can be released, regardless of the funding's potential impact on transit employees.
The transit authority is liable for claims successfully brought by employees whose rights have been affected by the project supported by Federal transit assistance. The transit provider can lessen the likelihood it will have to pay Section 13(c) claims by reducing personnel through attrition, or by offering employees work in other jobs with equal or better pay and working conditions, retraining them for these jobs if necessary. By planning and implementing changes in ways that minimize the adverse effects on employees, the transit provider can minimize the likelihood of claims.
The Department does not view an impasse over negotiations of a collective bargaining agreement or a backlog of grievances as grounds to deny certification or as a valid objection justifying renegotiation of Section 13(c) arrangements under its processing guidelines. While Section 13(c) requires that a recipient of Federal assistance continue collective bargaining rights of employees, it does not require that the parties reach agreement in their negotiations or grievance processing. Generally, there are existing procedures such as factfinding, arbitration, or the right to strike or lockout, which can be used to resolve such disagreements.
Section 13(c) requires that the grant recipient protect the interests of all mass transit employees in the service area of the Federally funded project, including those of its contractors as well as employees of other transit providers in the service area. If none of these employees are represented by a union, the Department will certify the grant on terms and conditions of the "non-union" certification. If any of those employees are represented by a union, the non-union certification cannot be used, and the union must be given the opportunity to take part in developing the Section 13(c) arrangements with the grant recipient.
Section 13(c) protections are required for all transit employees in the service area of a Federally funded transit project, regardless of whether they work for the grant recipient. If any of these employees are represented by a union, it must be given an opportunity to develop, with the grant recipient, protective terms for the employees it represents. This process does not create a collective bargaining relationship between that union and the grant recipient if one does not already exist.