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Electronic Code of Federal Regulations

e-CFR data is current as of February 13, 2020

Title 29Subtitle BChapter XIIPart 1404 → Subpart C


Title 29: Labor
PART 1404—ARBITRATION SERVICES


Subpart C—Procedures for Arbitration Services


Contents
§1404.8   Freedom of choice.
§1404.9   Procedures for requesting arbitration lists and panels.
§1404.10   Arbitrability.
§1404.11   Nominations of arbitrators.
§1404.12   Selection by parties and appointment of arbitrators.
§1404.13   Conduct of hearings.
§1404.14   Decision and award.
§1404.15   Fees and charges of arbitrators.
§1404.16   Reports and biographical sketches.

§1404.8   Freedom of choice.

Nothing contained in this part should be construed to limit the rights of parties who use FMCS arbitration services to jointly select any arbitrator or arbitration procedure acceptable to them. Once a request is made to OA, all parties are subject to the procedures contained in this part.

§1404.9   Procedures for requesting arbitration lists and panels.

(a) The OA has been delegated the responsibility for administering all requests for labor arbitration services. Requests must be made online at fmcs.gov/services/arbitration/requesting-a-panel/, or via email attaching a completed Form R-43 addressed to arbitration@fmcs.gov.

(b) Upon request, OA will refer a randomly selected panel of seven arbitrators to parties to an agreement to arbitrate or engage in fact-finding, or where labor arbitration or fact-finding may be provided by statute. A biographical sketch will be provided for each member of the panel. This sketch states the background, qualifications, experience, and all fees as furnished to OA by the arbitrator. The parties are encouraged to make joint requests. However, a panel request, whether joint or unilateral, will be honored. Requests for a panel of other than seven (7) names, for a direct appointment of an arbitrator, and/or for special qualifications or other service will not be honored unless jointly submitted or authorized by both parties pursuant to mutual agreement. The issuance of a panel—in response to either joint or unilateral request—is nothing more than a response to a request. Neither issuance of a panel nor appointment of an arbitrator signifies the adoption of any position by FMCS regarding the status of an arbitration agreement, arbitrability of any dispute, or the terms of the parties' contract.

(c) FMCS has no power to:

(1) Compel parties to appear before an arbitrator;

(2) Enforce an agreement to arbitrate;

(3) Compel parties to arbitrate any issue;

(4) Influence, alter, or set aside decisions of arbitrators on the Roster; or

(5) Compel, deny, or modify payment of compensation to an arbitrator.

(d) OA may decline to submit a panel or to make an appointment of an arbitrator if the request submitted is overly burdensome or otherwise impracticable. OA, in such circumstances, may refer the parties to an FMCS mediator to help in the design of an alternative solution. OA may also decline to service any request from a party based on the party's prior non-payment of arbitrator fees or other behavior that constrains the spirit or operation of the arbitration process.

(e) Panel requests that contain certain special requirements not found among the selections online, cannot be processed via the agency's internet system; instead, parties must submit the pdf version of the R-43 form via email to OA and specify the additional requirements agreed to by both parties.

(f) As an alternative to a panel of arbitrators, OA will, upon written request, submit a list of arbitrators and their biographical sketches from a designated geographical area; the parties may then select and deal directly with an arbitrator of their choice, with no further involvement of FMCS with the parties or the arbitrator, and no assigned case number. The parties may also request FMCS to make a direct appointment of their selection. In such a situation, a case number will be assigned.

(g) OA will charge a fee for all requests for lists, panels, and other major services. Payments for these services must be received with the request for services before the service is delivered and may be paid by either labor or management or both. A schedule of fees is listed in the appendix to this part.

§1404.10   Arbitrability.

OA will not decide the merits of a claim by either party that a dispute is not subject to arbitration.

§1404.11   Nominations of arbitrators.

(a) All panels submitted to the parties by OA, and all letters issued by OA making a direct appointment, will have an assigned FMCS case number. All future communications with OA should refer to this case number.

(b) OA will provide a randomly selected panel of arbitrators located in geographical areas in proximity of the hearing site, as specified in the request. The parties may jointly request special qualification of arbitrators experienced in certain issues or industries or that possess certain backgrounds, or a panel with no geographic restrictions within the U.S. OA has no obligation to put an individual on any given panel or on a minimum number of panels in any fixed period. If at any time both parties request that a name or names be included, or omitted, from a panel, such name or names will be included, or omitted, unless the number of names is excessive. These inclusions/exclusions may not discriminate against anyone because of age, race, color, gender, national origin, disability, genetic information, or religion.

(c) If the parties do not agree on an arbitrator from the first panel, OA will furnish up to five additional panels to the parties upon joint request, or upon a unilateral request if authorized by the applicable collective bargaining agreement, and payment of additional fees.

§1404.12   Selection by parties and appointment of arbitrators.

(a) After receiving a panel of names, the parties must notify OA of their selection of an arbitrator or of the decision not to proceed with arbitration. Upon notification of the selection of an arbitrator, OA will make a formal appointment of the arbitrator. The arbitrator, upon notification of appointment, shall communicate with the parties within 14 days to arrange for preliminary matters, such as the date and place of hearing. Should an arbitrator be notified directly by the parties that he or she has been selected, the arbitrator must promptly notify OA of the selection. The arbitrator must provide OA with the FMCS case number and other pertinent information for OA to make an appointment. A pattern of failure by an arbitrator to notify FMCS of a selection in an FMCS case may result in suspension or removal from the Roster. If the parties settle a case prior to the hearing, the parties must inform the arbitrator as well as OA. Consistent failure to follow these procedures may lead to a denial of future OA services.

(b) Where the parties' collective bargaining agreement permits each party to separately notify OA of its ranked order of preference, or is silent on the manner of selecting arbitrators, FMCS will ask each party to advise OA of its order of preference by numbering each name on the panel and submitting the numbered list in writing to OA. Upon receiving the rank order from one party, OA will notify the other party that it has fourteen (14) days in which to submit its selections. Where both parties respond, the name that has the lowest combined number will be appointed. If the other party fails to respond, the first party's choice will be honored.

(c) OA will make a direct appointment of an arbitrator only upon joint request or as otherwise provided by this part.

§1404.13   Conduct of hearings.

All proceedings conducted by the arbitrators shall conform to the contractual obligations of the parties, and to the Code. The arbitrator shall comply with §1404.4(b). The conduct of the arbitration proceeding is under the arbitrator's jurisdiction and control, and the arbitrator's decision shall be based upon the evidence and testimony presented at the hearing or otherwise incorporated in the record of the proceeding. The arbitrator may, unless prohibited by law, proceed in the absence of any party who, after due notice, fails to be present or to obtain a postponement. An award rendered in an ex parte proceeding of this nature must be based upon evidence presented to the arbitrator.

§1404.14   Decision and award.

(a) Arbitrators shall make awards no later than 60 days from the date of the closing of the record, unless otherwise agreed upon by the parties or specified by the collective bargaining agreement or law. However, failure to meet the 60-day deadline will not invalidate the process or award. A failure to render timely awards reflects upon the performance of an arbitrator and may lead to removal from the FMCS Roster.

(b) The parties should inform OA whenever a decision is delayed. The arbitrator shall promptly notify OA if and when the arbitrator:

(1) Cannot schedule or hear a case, and/or render a decision promptly and in accordance with time limits established in this part, or

(2) Learns a dispute has been settled by the parties prior to the decision.

(c) Within 15 days after an award and/or final invoice has been submitted to the parties, the arbitrator shall submit an online Arbitrator's Report and Fee Statement (Form R-19) to OA showing a breakdown of the fee and expense charges.

(d) While FMCS encourages the publication of arbitration awards, arbitrators must not publicize awards without the express consent of the parties in conformance with the Code.

§1404.15   Fees and charges of arbitrators.

(a) Fees to parties. Prior to appointment, the parties should be aware of all significant aspects of the bases for an arbitrator's fees and expenses. Each arbitrator's biographical sketch shall include a statement of the bases for the arbitrator's fees and expenses, which shall conform to this part and the Code. The parties and the arbitrator shall be bound by the arbitrator's statement of the bases for fees and expenses in the biographical sketch for two years from the date of appointment unless they mutually agree otherwise in writing. Arbitrators listed on the Roster may change the bases for their fees and expenses for future appointments if they provide them in writing to OA at least 30 days in advance.

(b) Two or more addresses. Arbitrators with more than one business address must bill the parties for expenses from the least expensive business address to the hearing site.

(c) Additional administrative fee. In cases involving unusual amounts of time and expense relative to the pre-hearing and post-hearing administration of a particular case, the arbitrator may charge an administrative fee. This fee shall be disclosed to the parties as soon as it is foreseeable by the arbitrator.

(d) Fee disputes. When a party believes the arbitrator has not followed the requirements of this Part, it should promptly notify OA, which may bring any complaint concerning the fees charged by an arbitrator to the attention of the Board for consideration. Complaints by arbitrators concerning non-payment of fees by a party may lead to the denial of services or other actions by OA.

§1404.16   Reports and biographical sketches.

(a) Arbitrators listed on the Roster shall execute and return all documents, forms and reports required by OA and be responsible for updating their account and bio information online, including changes of address, telephone number, and availability. They must also furnish to OA the contact information for a person they know well whom OA may contact if unable to reach the arbitrator, and who has agreed to contact OA if the arbitrator has become incapacitated or deceased. Arbitrators must contact OA directly when they engage, or are accused of engaging, in any business or other connection or relationship involving labor or employment relations and/or which creates or gives the appearance of advocacy as defined in §1404.5(c)(1).

(b) OA reserves the right to decide and approve the format and content of biographical sketches.

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