[Code of Federal Regulations]
[Title 29, Volume 2]
[Revised as of July 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR215.3]

[Page 121-123]
 
                             TITLE 29--LABOR
 
  CHAPTER II--OFFICE OF LABOR-MANAGEMENT STANDARDS, DEPARTMENT OF LABOR
 
PART 215_GUIDELINES, SECTION 5333(b), FEDERAL TRANSIT LAW--Table of Contents
 
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.
    (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

[[Page 122]]

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 
Sec. Sec. 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 Sec. Sec. 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

[[Page 123]]

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 
Sec. Sec. 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.

[60 FR 62969, Dec. 7, 1995, as amended at 64 FR 40992, July 28, 1999]