Appendix A to Part 271 - Federal Railroad Administration Guidance on the Risk Reduction Program Consultation Process
49:4.1.1.1.50.8.138.1.113 : Appendix A
Appendix A to Part 271 - Federal Railroad Administration Guidance
on the Risk Reduction Program Consultation Process
A railroad required to develop a risk reduction program (RRP)
under this part shall in good faith consult with and use its best
efforts to reach agreement with its directly affected employees on
the contents of the RRP plan. See § 271.207(a)(1). This
appendix discusses the meaning of the terms “good faith” and “best
efforts,” and provides non-mandatory guidance on how a railroad may
comply with the requirement to consult with directly affected
employees on the contents of its RRP plan. 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.
I. The Meaning of “Good Faith” and “Best Efforts”
“Good faith” and “best efforts” are not interchangeable terms
representing a vague standard for the § 271.207 consultation
process. Rather, each term has a specific and distinct meaning.
When consulting with directly affected employees, therefore, a
railroad shall independently meet the standards for both the good
faith and best efforts obligations. A railroad that does not meet
the standard for one or the other will not be in compliance with
the consultation requirements of § 271.207.
The good faith obligation requires a railroad to consult with
employees in a manner that is honest, fair, and reasonable, and to
genuinely pursue agreement on the contents of an RRP plan. If a
railroad 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 railroad's directly affected employees express
concerns with certain parts of the railroad's RRP plan, and the
railroad neither addresses those concerns in further consultation
nor attempts to address those concerns by making changes to the RRP
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 railroad shall pursue to reach agreement
with its employees on the contents of its RRP plan. While the good
faith obligation is concerned with the railroad's state of mind
during the consultation process, the best efforts obligation is
concerned with the specific efforts made by the railroad in an
attempt to reach agreement. This would include considerations such
as whether a railroad had held sufficient meetings with its
employees to address or make an attempt to address any concerns
raised by the employees, or whether the railroad had made an effort
to respond to feedback provided by employees during the
consultation process. For example, a railroad 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. A railroad
would also likely not meet the best efforts obligation if it
presented employees with an RRP plan and only permitted the
employees to express agreement or disagreement on the plan
(assuming that the employees had not previously indicated that such
a consultation would be acceptable). A railroad may, however, wish
to hold off substantive consultations regarding the contents of its
RRP plan until one year after publication of the rule to ensure
that information generated as part of the process is protected from
discovery and admissibility into evidence under § 271.11.
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 RRP plans, FRA will determine on a case-by-case
basis whether a railroad has met its § 271.207 good faith and best
efforts obligations. This determination will be based upon the
consultation statement submitted by the railroad pursuant to §
271.207(b) and any statements submitted by employees pursuant to §
271.207(c). If FRA finds that these statements do not provide
sufficient information to determine whether a railroad used good
faith and best efforts to reach agreement, FRA may investigate
further and contact the railroad or its employees to request
additional information. (FRA also expects a railroad's directly
affected employees to utilize good faith and best efforts when
negotiating on the contents of an RRP plan. If FRA's review and
investigation of the statements submitted by the railroad under §
271.207(b) and the directly affected employees under § 271.207(c)
reveal that the directly affected employees did not utilize good
faith and best efforts, FRA could consider this as part of its
approval process.)
If FRA determines that a railroad did not use good faith and
best efforts, FRA may disapprove the RRP plan submitted by the
railroad and direct the railroad to comply with the consultation
requirements of § 271.207. Pursuant to § 271.301(b)(3), if FRA does
not approve the RRP plan, the railroad 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 railroad did not use good faith and
best efforts to consult and reach agreement with its directly
affected employees. If a railroad then does not submit to FRA
within 90 days an RRP plan meeting the consultation requirements of
§ 271.207, the railroad could be subject to penalties for failure
to comply with § 271.301(b)(3).
II. Guidance on How a Railroad May Consult With Directly Affected
Employees
Because the standard imposed by the best efforts obligation will
vary depending upon the railroad, there may be countless ways for
various railroads to comply with the consultation requirements of §
271.207. Therefore, it is important to maintain a flexible approach
to the § 271.207 consultation requirements, to give a railroad 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 railroad may proceed when consulting (utilizing good faith
and best efforts) with employees in an attempt to reach agreement
on the contents of an RRP plan. This guidance may be useful as a
starting point for railroads that are uncertain about how to comply
with the § 271.207 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 railroad may use to consult with represented and
non-represented employees could differ significantly.
This guidance does not establish prescriptive requirements with
which a railroad shall comply, but merely outlines a consultation
process a railroad may choose to follow. A railroad's consultation
statement could indicate that the railroad 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
RRP plan.
(a) Employees Represented by a Non-Profit Employee Labor
Organization
As provided in § 271.207(b)(1), a railroad consulting with the
representatives of a non-profit employee labor organization on the
contents of an RRP plan will be considered to have consulted with
the directly affected employees represented by that
organization.
A railroad 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
RRP plan.
(1) Pursuant to § 271.207(b)(1), a railroad must meet with
representatives from a non-profit employee labor organization
(representing a class or craft of the railroad's directly affected
employees) within 240 days from February 18, 2020 to begin the
process of consulting on the contents of the railroad's RRP plan. A
railroad must provide notice at least 60 days before the scheduled
meeting.
(2) During the time between the initial meeting and the
applicability date of § 271.11, the parties may meet to discuss
administrative details of the consultation process as
necessary.
(3) Within 60 days after February 17, 2021, a railroad should
have a meeting with the representatives of the directly affected
employees to discuss substantive issues with the RRP plan.
(4) Within 180 days after February 17, 2021 or as otherwise
provided by § 271.301(b), a railroad would file its RRP plan with
FRA.
(5) As provided by § 271.207(e), if agreement on the contents of
an RRP plan could not be reached, a labor organization
(representing a class or craft of the railroad'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.
(b) Employees Who Are Not Represented by a Non-Profit Employee
Labor Organization
FRA recognizes that some (or all) of a railroad'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, a railroad 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 railroad's RRP plan. FRA
therefore is providing the following guidance regarding how a
railroad may utilize good faith and best efforts when consulting
with non-represented employees on the contents of its RRP plan.
(1) Within 120 days from February 18, 2020, a railroad may
notify non-represented employees that -
(A) The railroad 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 RRP plan;
(B) Non-represented employees are invited to participate in the
consultation process (and include instructions on how to engage in
this process); and
(C) If a railroad is unable to reach agreement with its directly
affected employees on the contents of the proposed RRP plan, an
employee may file a statement with the FRA Associate Administrator
for Railroad Safety and Chief Safety Officer explaining his or her
views on the plan on which agreement was not reached.
(2) This initial notification (and all subsequent
communications, as necessary or appropriate) could be provided to
non-represented employees in the following ways:
(A) Electronically, such as by email or an announcement on the
railroad's website;
(B) By posting the notification in a location easily accessible
and visible to non-represented employees; or
(C) By providing all non-represented employees a hard copy of
the notification.
A railroad could use any or all of these methods of
communication, so long as the notification complies with the
railroad's obligation to utilize best efforts in the consultation
process.
(3) Following the initial notification (and before submitting
its RRP plan to FRA), a railroad should provide non-represented
employees a draft proposal of its RRP plan. This draft proposal
should solicit additional input from non-represented employees, and
the railroad should provide non-represented employees 60 days to
submit comments to the railroad on the draft.
(4) Following this 60-day comment period and any changes to the
draft RRP plan made as a result, the railroad should submit the
proposed RRP plan to FRA, as required by this part.
(5) As provided by § 271.207(e), if agreement on the contents of
an RRP 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 his or her views on the
plan on which agreement was not reached.