Appendix B to Part 270 - Federal Railroad Administration Guidance on the System Safety Program Consultation Process
49:4.1.1.1.49.6.138.1.111 : Appendix B
Appendix B to Part 270 - Federal Railroad Administration Guidance
on the System Safety Program Consultation Process
A passenger rail operation required to develop a system safety
program under this part must in good faith consult with and use its
best efforts to reach agreement with its directly affected
employees on the contents of the SSP plan. See § 270.107(a).
This appendix discusses the meaning of the terms “good faith” and
“best efforts,” and provides non-mandatory guidance on how to
comply with the requirement to consult with directly affected
employees on the contents of the SSP plan.
The guidance is provided for employees who are represented by a
non-profit employee labor organization and employees who are not
represented by any such organization. The guidance is not legally
binding in its own right and will not be relied upon by the U.S.
Department of Transportation as a separate basis for affirmative
enforcement action or other administrative penalty. Conformity with
this guidance (as distinct from existing statutes and regulations)
is voluntary only, and nonconformity will not affect rights and
obligations under existing statutes and regulations.
The Meaning of “Good Faith” and “Best Efforts”
“Good faith” and “best efforts” are not interchangeable terms
representing a vague standard for the § 270.107 consultation
process. Rather, each term has a specific and distinct meaning.
When consulting with directly affected employees, therefore, a
passenger rail operation must independently meet the standards for
both the good faith and best efforts obligations. A passenger rail
operation that does not meet the standard for one or the other will
not be in compliance with the consultation requirements of §
270.107.
The good faith obligation requires a passenger rail operation to
consult with employees in a manner that is honest, fair, and
reasonable, and to genuinely pursue agreement on the contents of an
SSP plan. If a passenger rail operation consults with its employees
merely in a perfunctory manner, without genuinely pursuing
agreement, it will not have met the good faith requirement. For
example, a lack of good faith may be found if a passenger rail
operation's directly affected employees express concerns with
certain parts of the SSP plan, and the passenger rail operation
neither addresses those concerns in further consultation nor
attempts to address those concerns by making changes to the SSP
plan.
On the other hand, “best efforts” establishes a higher standard
than that imposed by the good faith obligation, and describes the
diligent attempts that a passenger rail operation must pursue to
reach agreement with its employees on the contents of its system
safety program. While the good faith obligation is concerned with
the passenger rail operation's state of mind during the
consultation process, the best efforts obligation is concerned with
the specific efforts made by the passenger rail operation in an
attempt to reach agreement. This would include considerations such
as whether a passenger rail operation had held sufficient meetings
with its employees to address or make an attempt to address any
concerns raised by the employees, or whether the passenger rail
operation had made an effort to respond to feedback provided by
employees during the consultation process. For example, a passenger
rail operation would not meet the best efforts obligation if it did
not initiate the consultation process in a timely manner, and
thereby failed to provide employees sufficient time to engage in
the consultation process. Generally, best efforts are measured by
the measures that a reasonable person in the same circumstances and
of the same nature as the acting party would take. Therefore, the
standard imposed by the best efforts obligation may vary with
different railroads, depending on a railroad's size, resources, and
number of employees.
When reviewing SSP plans, FRA will determine on a case-by-case
basis whether a passenger rail operation has met its § 270.107 good
faith and best efforts obligations. This determination will be
based upon the consultation statement submitted by the passenger
rail operation pursuant to § 270.107(b) and any statements
submitted by employees pursuant to § 270.107(c). If FRA finds that
these statements do not provide sufficient information to determine
whether a passenger rail operation used good faith and best efforts
to reach agreement, FRA may investigate further and contact the
passenger rail operation or its employees to request additional
information. If FRA determines that a passenger rail operation did
not use good faith and best efforts, FRA may disapprove the SSP
plan submitted by the passenger rail operation and direct the
passenger rail operation to comply with the consultation
requirements of § 270.107. Pursuant to § 270.201(b)(3), if FRA does
not approve the SSP plan, the passenger rail operation will have 90
days, following receipt of FRA's written notice that the plan was
not approved, to correct any deficiency identified. In such cases,
the identified deficiency would be that the passenger rail
operation did not use good faith and best efforts to consult and
reach agreement with its directly affected employees. If a
passenger rail operation then does not submit to FRA within 90 days
an SSP plan meeting the consultation requirements of § 270.107, FRA
could impose penalties for failure to comply with §
270.201(b)(3).
Guidance on How a Passenger Rail Operation May Consult With
Directly Affected Employees
Because the standard imposed by the best efforts obligation will
vary depending upon the passenger rail operation, there may be
countless ways to comply with the consultation requirements of §
270.107. Therefore, FRA believes it is important to maintain a
flexible approach to the § 270.107 consultation requirements, to
give a passenger rail operation and its directly affected employees
the freedom to consult in a manner best suited to their specific
circumstances.
FRA is nevertheless providing guidance in this appendix as to
how a passenger rail operation may proceed when consulting
(utilizing good faith and best efforts) with employees in an
attempt to reach agreement on the contents of an SSP plan. FRA
believes this guidance may be useful as a starting point for those
that are uncertain about how to comply with the § 270.107
consultation requirements. This guidance distinguishes between
employees who are represented by a non-profit employee labor
organization and employees who are not, as the processes a
passenger rail operation may use to consult with represented and
non-represented employees could differ significantly.
This guidance does not establish prescriptive requirements but
merely outlines a consultation process a passenger rail operation
may choose to follow. A passenger rail operation's consultation
statement could indicate that it followed the guidance in this
appendix as evidence that it utilized good faith and best efforts
to reach agreement with its employees on the contents of an SSP
plan.
Employees Represented by a Non-Profit Employee Labor Organization
As provided in § 270.107(a)(2), a passenger rail operation
consulting with the representatives of a non-profit employee labor
organization on the contents of an SSP plan will be considered to
have consulted with the directly affected employees represented by
that organization.
A passenger rail operation may utilize the following process as
a roadmap for using good faith and best efforts when consulting
with represented employees in an attempt to reach agreement on the
contents of an SSP plan.
• Pursuant to § 270.107(a)(3)(i), a passenger rail operation
must meet with representatives from a non-profit employee labor
organization (representing a class or craft of the passenger rail
operation's directly affected employees) no later than July 2,
2020, to begin the process of consulting on the contents of the SSP
plan. A passenger rail operation must provide notice at least 60
days before the scheduled meeting.
• During the time between the initial meeting and the
applicability date of § 270.105 the parties may meet to discuss
administrative details of the consultation process as
necessary.
• Within 60 days after the applicability date of § 270.105 a
passenger rail operation should have a meeting with the directed
affected railroad employees to discuss substantive issues with the
SSP.
• Pursuant to § 270.201(a)(1), a passenger rail operation would
file its SSP plan with FRA no later than March 4, 2021, or not less
than 90 days before commencement of new passenger service,
whichever is later.
• As provided by § 270.107(c), if agreement on the contents of
an SSP plan could not be reached, a labor organization
(representing a class or craft of the passenger rail operation's
directly affected employees) may file a statement with the FRA
Associate Administrator for Railroad Safety and Chief Safety
Officer explaining its views on the plan on which agreement was not
reached.
Employees Who Are Not Represented by a Non-Profit Employee Labor
Organization
FRA recognizes that some (or all) of a passenger rail
operation's directly affected employees may not be represented by a
non-profit employee labor organization. For such non-represented
employees, the consultation process described for represented
employees may not be appropriate or sufficient. For example, FRA
believes that a passenger rail operation with non-represented
employees should make a concerted effort to ensure that its
non-represented employees are aware that they are able to
participate in the development of the SSP plan. FRA therefore is
providing the following guidance regarding how a passenger rail
operation may utilize good faith and best efforts when consulting
with non-represented employees on the contents of its SSP plan.
• By April 20, 2020, a passenger rail operation should notify
non-represented employees that -
(1) The passenger rail operation is required to consult in good
faith with, and use its best efforts to reach agreement with, all
directly affected employees on the proposed contents of its SSP
plan;
(2) The passenger rail operation is required to meet with its
directly affected employees by July 2, 2020, to address the
consultation process;
(3) Non-represented employees are invited to participate in the
consultation process (and include instructions on how to engage in
this process); and
(4) If a passenger rail operation is unable to reach agreement
with its directly affected employees on the contents of the
proposed SSP plan, an employee may file a statement with the FRA
Associate Administrator for Railroad Safety and Chief Safety
Officer explaining the employee's views on the plan on which
agreement was not reached.
• This initial notification (and all subsequent communications,
as necessary or appropriate) could be provided to non-represented
employees in the following ways:
(1) Electronically, such as by email or an announcement on the
passenger rail operation's website;
(2) By posting the notification in a location easily accessible
and visible to non-represented employees; or
(3) By providing all non-represented employees a hard copy of
the notification. A passenger rail operation could use any or all
of these methods of communication, so long as the notification
complies with the passenger rail operation's obligation to utilize
best efforts in the consultation process.
• Following the initial notification and initial meeting to
discuss the consultation process (and before the passenger rail
operation submits its SSP plan to FRA), a passenger rail operation
should provide non-represented employees a draft proposal of its
SSP plan. This draft proposal should solicit additional input from
non-represented employees, and the passenger rail operation should
provide non-represented employees 60 days to submit comments to the
passenger rail operation on the draft.
• Following this 60-day comment period and any changes to the
draft SSP plan made as a result, the passenger rail operation
should submit the proposed SSP plan to FRA, as required by this
part.
• As provided by § 270.107(c), if agreement on the contents of
an SSP plan cannot be reached, then a non-represented employee may
file a statement with the FRA Associate Administrator for Railroad
Safety and Chief Safety Officer explaining employee's views on the
plan on which agreement was not reached.
[85 FR 12849, Mar. 4, 2020]