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]