Public Transit Employee Protections

Public Transit Employee Protections 49 U.S.C. § 5333(b)

 

OVERVIEW

When federal funds are used to acquire, improve, or operate a mass transit system (public transportation), federal law requires arrangements to protect the interests of mass transit employees. 49 U.S.C. § 5333(b) (formerly Section 13(c) of the Urban Mass Transportation Act). Section 5333(b) specifies that these protective arrangements must provide for the preservation of rights and benefits of employees under existing collective bargaining agreements, the continuation of collective bargaining rights, the protection of individual employees against a worsening of their positions in relation to their employment, assurances of employment to employees of acquired transit systems, priority of reemployment, and paid training or retraining programs. 49 U.S.C. § 5333(b)(2).

The Department of Labor (DOL) must certify that protective arrangements are in place and meet the above requirements for all grants of assistance under of the Federal Transit Law before the Department of Transportation’s Federal Transit Administration (FTA) can release funds. The FTA includes the terms and conditions of the certification and protective arrangements in its contract of assistance with the grant recipient. There is no basis for a waiver or exemption from the requirements of section 5333(b).

A protective arrangement is not a collective bargaining agreement and does not create a collective bargaining relationship where one does not already exist.

For further information on Mass Transit Employee Protections, see the sections below or contact OLMS at (202) 693-0123 or OLMS-DSP@dol.gov.  Also, visit the transit employee protections decisions page to view landmark certifications and claims decisions.

DOL’S PROCEDURES FOR CERTIFICATION OF PROTECTIVE ARRANGEMENTS (29 CFR § 215)

Pursuant to its Procedural Guidelines, 29 CFR § 215, DOL refers the grant application and the proposed terms and conditions to:  the recipient and any subrecipients of the funding, and any unions representing employees of the grantee, its contractors, and/or other service area providers. When protective arrangements have been previously negotiated and agreed to by the transit employees' union and the grant applicant, and the arrangements continue to meet the requirements of 5333(b), the Department will refer on the basis the previously certified protective arrangements. If there are no previous or existing arrangements that may be applied to the pending grant, DOL proposes to apply the terms and conditions of the January 3, 2011 Unified Protective Arrangement (UPA) 29 CFR § 215.3(b)(1) and (2). 

DOL may certify term and conditions without referral if the grant application falls under one of the following exceptions:  1)  neither the grant recipient’s employees, nor those of any other transit provider in the service area are represented by a union, (in which case the Act’s protections are contained in a "Nonunion Protective Arrangement" developed by DOL); 2) the grant specifies that is only for routine replacement items; 3) the grant amends a previous grant in a manner that is not material, 4) the grant specifies that it is only for a Job Access project serving populations less than 200,000; 5) the grant capitalizes a State Infrastructure Bank account; or 6) the grant is for the Over-the-Road Bus or Other Than Urbanized program (in which case the Act’s protections are contained in the Special Warranty developed by DOL).

Once a grant application is referred, the parties have 15 days to inform DOL of any objection to the recommended terms. In order for DOL to find an objection sufficient, it must "raise" material issues that may require alternative employee protections," or "concern changes in legal or factual circum stances that may materially affect the rights or interests of employees." 29 C.F.R. § 215.3(d)(3).  If no objection is made or DOL does not find the objection sufficient, DOL certifies the proposed terms. DOL then provides FTA with the certified protective arrangements to be made applicable to the federal assistance.

If DOL determines that an objection is sufficient, it will direct the parties to negotiate on specific issues defined by DOL. If the parties are unable to reach agreement within 30 days, DOL will review the final proposals and, if possible, issue an interim certification permitting FTA to release funds based on terms and conditions determined by DOL which are no less protective than the terms and conditions included in the referral and provided that no action is taken relating to the issues in dispute that will irreparably harm employees. 29 C.F.R. § 215.3(d)(7) and (8). Following the interim certification, the parties may continue negotiations.  If they are unable to reach agreement, DOL will determine the terms for Final Certification within 60 days.  DOL may request briefs on the issues in dispute before issuing the final certification.

CLAIMS FOR SECTION 5333(b) PROTECTIONS

All protective arrangements include a procedure for final and binding resolution of disputes over the interpretation, application, and enforcement of the terms and conditions of the arrangement and disputes regarding the validity of a claim. This procedure, referred to as a “claim for employee protections,” may be utilized by an individual employee, a group of employees, or a representative of a bargaining unit. Only a representative of bargaining unit may file a claim for a violation of continuation of collective bargaining rights under 49 U.S.C. § 5333(b)(2)(B). The outcome of the final and binding determination pursuant to a protective arrangement is enforceable in state court as a matter of contract law. 

It is important to act promptly in raising and/or pursuing a claim for protections. The protective arrangements often specify time periods in which claims can be initiated or pursued to arbitration. Excessive delay without good cause in pursuing your claim could create problems in obtaining necessary information, or could be a basis for dismissal of your claim.

For most unionized employees, claims are handled by their union through private arbitration. For nonunion employees, the terms and conditions of the DOL grant certification provide for final and binding arbitration by DOL. A nonunion employee must exhaust any local claims resolution procedures established by the recipient of federal funds before filing a claim with DOL.

The claims resolution procedure provided in a protective arrangement should not be confused with the dispute resolution procedures provided by a collective bargaining agreement or other employee policy and procedures manuals. Disputes arising in the workplace over changes, discipline, and discharge, not in contravention with the applicable protective arrangement and not the result of a project, are not within the purview of section 5333(b) and should be pursued in accordance with applicable grievance procedures. Effects resulting from changes made during renegotiation and execution of the terms and conditions of the collective bargaining agreement, not in contravention with the applicable protective arrangement, are also not within the purview of the Act.  In addition, charges of unfair labor practices, discrimination, or harassment are also not within the purview of the Act and must be pursued in the appropriate forum under the applicable law.

The following documents should be obtained and reviewed to determine if the facts of a situation give rise to a claim under the applicable protective arrangements.

• The grant application filed with FTA by the Recipient.
• DOL's official Certification Letter for the grant.
• The specific protective arrangements applied in DOL's certification of the grant.

If you are represented by a union, the local or International representative should have these records.

If you are not represented by a labor organization, you must be able to identify the FTA assistance (grant or project) that you believe has affected you with respect to your employment. You should then contact the grant recipient to request a copy of the applicable certification letter issued by DOL and the protective agreements/arrangements described in the certification letter. If you cannot identify the appropriate grant, request copies of the certification letter(s) for FTA grants (sometimes referred to as projects) near the time periods and/or actions which you believe may have affected your employment.

Information may also be requested from DOL’s Office of Labor-Management Standards, Division of Statutory Programs.

How to Pursue a Claim

Labor Organizations

A labor organization may file an employee protections claim, alleging a violation of, or failure to apply, one or more terms or requirements of a certified protective arrangement; a worsening of employment conditions as a result of a project; a failure to preserve rights, privileges and benefits (including pension benefits) under collective bargaining agreements or otherwise; or, of a failure to continue collective bargaining rights (including meet and confer rights). The claim may pertain to one or more employees the labor organization represents, to the group of represented employees, or to the labor organization itself. A claim alleging a violation of rights under section 5333(b)(2)(A) or (B) need not identify any individual employees who are or might be affected, unless that becomes necessary for determining the specific harm and/or remedy for individual employees.

The certified protective arrangements provide for private arbitration of employee protection claims made by labor organizations.  If as a local union representative, you are unfamiliar with this process, you should contact your International for assistance.

Individual Employees Represented by a Labor Organization
If you are represented by a labor organization (i.e. a member of a bargaining unit represented by a labor organization, covered by a collective bargaining agreement, or if your employment conditions are negotiated or discussed with management by a labor organization), you should discuss the matter with a representative of the labor organization. If the labor organization agrees to pursue your employee protections concern, the labor organization will handle the filing and processing of the claim as indicated above.

Individual Employees Not Represented By a Labor Organization
If you are not represented by a labor organization, you should follow the existing local procedures for filing a claim. The protective arrangement may provide a deadline (often 60-days from the date of the impact on your employment caused by the FTA’s release of grant funds) for you to file your claim. If you do not know the identity of the transit grant recipient who received the FTA assistance, direct the notice and inquiry to your employer.

DOL Arbitration Procedures for Nonunion Employee Claims Under Section 5333(b)

Local Procedures
All protective arrangements include a final and binding procedure for resolving claims disputes.  Not all arrangements include a preliminary claims handling process. If it does not, you should ask the transit grant recipient, or other transit employer responsible for providing the protections, what procedures exist at the local level for resolving your individual employee protections claim. Pursue your claim with the Recipient through any available local procedures. If local procedures are not made available, or have failed to resolve your claim, follow the steps below.

Submitting a Claim to DOL
Obtain and submit a claim form from DOL or submit a letter that: (1) identifies the projects that have affected your employment conditions and/or describes how the certified protective arrangements were violated; (2) states when and how events occurred; (3) describes how you were harmed or otherwise worsened in your employment conditions; (4) identifies the employer or entity responsible for providing the protections, if you know; and (5) states what remedies you seek.

GRANT PROCESSING STATISTICS: 49 U. S. C. SECTION 5333(b) ANNUAL CERTIFICATIONS

Total number of grants certified per fiscal year

Fiscal Year	Grants Certified
2019	1,752
2018	1,712
2017	1,661
2016	1,493*
2015	1,738
2014	2,065
2013	1,902
2012	2,166
2011	2,205
2010	2,490
2009	2,750

* The FY 2016 annual certifications were significantly lower than previous years, as the Federal Transit Administration suspended its grant making process from December 2015 to February 2016 to launch a new system.

 

FOR FURTHER INFORMATION: 
U.S. Department of Labor
Office of Labor-Management Standards
Washington, DC  20230
Telephone: (202) 693-0123    
Fax: (202) 693-1343
OLMS-DSP@dol.gov

 

Last Updated: 02-05-21