[Federal Register Volume 62, Number 122 (Wednesday, June 25, 1997)]
[Rules and Regulations]
[Pages 34170-34175]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-16387]


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FEDERAL MEDIATION AND CONCILIATION SERVICE

29 CFR Part 1404


Arbitration Policy; Roster of Arbitrators, Procedures for 
Arbitration Services

AGENCY: Federal Mediation and Conciliation Service.

ACTION: Final rule.

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SUMMARY: This document revises Subparts A, B, and C of 29 CFR Part 
1404. The goals of these revisions and additions are to more accurately 
reflect current practice, clarify the role of the Arbitrator Review 
Board, amend the standards for arbitrator listing on the Roster, 
streamline the primary arbitration process, and provide new services to 
our customers. The new rules also call for an annual listing fee for 
all arbitrators as well as a fee for all requests by the parties for 
names of arbitrators.

DATES: This regulation is effective October 1, 1997, except for 
Sec. 1404.7 which will be effective September 1, 1997.

FOR FURTHER INFORMATION CONTACT:
Peter Regner, 202-606/8181.

SUPPLEMENTARY INFORMATION: The Federal Mediation and Conciliation 
Service, in an effort to receive public input on ways to improve its 
arbitration services, published the draft revision of its proposed 
rules in the March 13, 1997, issue of the Federal Register (62 FR 
11797) and conducted a formal all-day focus group on March 27, 1997. 
The focus group consisted of six (6) arbitrators, six (6) of the 
Service's top labor customers and six (6) of its leading management 
customers. In addition to the comments from the focus group, the 
Service received 68 written responses: 61 from arbitrators, six (6) 
from management, and one (1) from labor.
    These regulations revise and supplement the rules under which the 
Office of Arbitration Services (OAS) has operated since April 15, 1979. 
Many of the changes simply describe operational changes which have 
evolved over the last 18 years but have never been formally documented. 
Other changes stem from a large-scale reinvention effort in which OAS 
employees, their union and management officials are attempting to 
operate in a more efficient and effective manner. Some revisions are 
aimed at improving the arbitration process by enforcing deadlines upon 
both the parties and the arbitrators.
    In general, the public's response to the proposed rule changes was 
very favorable. Over one-fourth of the written responses indicated 
total support of all proposed changes. Only one proposed change failed 
to receive public support, and that issue has been removed from the 
final rule. Most comments supported the general policy and suggested 
minor revisions as to its implementation. More specific information 
about the public response is contained in the following section-by-
section analysis.

Subpart A: Arbitration Policy; Administration of Roster

Sections 1404.1-1404.3

    There were no changes made to the Proposed Rule.

Subpart B: Roster of Arbitrators; Admission and Retention

Section 1404.4-1404.7

Section 1404.5

    Subsection (b). The proposed rule has been changed by stating that 
qualifications for recommending listing on the Roster ``may'' rather 
than ``shall'' be demonstrated by submission of five (5) rather than 
``at least five (5)'' awards. The rule also was changed by stating 
``The [Arbitrator Review] Board will consider experience'' instead of 
``may consider experience'' in lieu of such awards. These changes 
reflect several

[[Page 34171]]

comments by labor and management concerning the importance of relevant 
labor relations experience relative to actual decision-making 
experience.
    Subsection (c). Although the policy in this paragraph remains the 
same, the language has been revised to better clarify actual practice. 
The policy continues to reflect that advocates will not be allowed on 
the Roster of Arbitrators. However, it has been and will remain FMCS 
policy to allow candidates with past advocacy experience to enter the 
Roster if they ``agree to cease such activity before being recommended 
for listing on the Roster by the [Arbitrator Review] Board.''
    In addition, the ``Definition of Advocacy'' has been revised to 
allow that ``Consultants engaged in joint education or training or 
other non-adversarial activities will not be deemed advocates.'' This 
revision was based upon suggestions from the focus group as well as 
written comments.
    Subsection (d)(6).  The removal of arbitrators section generated a 
fair number of comments from arbitrators. Although generally 
supportive, most comments reflected concern over the implementation of 
the policy and due process safeguards.
    Most comments were directed to the provision allowing the FMCS 
Director to remove arbitrators whose acceptability to the parties may 
be questioned based upon the number of times they have been selected. 
This section has been modified by adding that extenuating 
circumstances, length of time on the Roster, or prior history would all 
be taken into consideration before such action is contemplated. FMCS 
may also delay future efforts to cull the Roster until new improvements 
to its computer-generated panel submission process have had sufficient 
time to take place.
    There were several comments regarding the finality of removals of 
arbitrators from the FMCS Roster. That has been clarified by adding 
that ``Removals may be for a period of up to two (2) years, after which 
the arbitrator may seek reinstatement.''
    FMCS will not undertake suspension or removal actions without 
regard to just cause and due process. All actions are subject to appeal 
to the FMCS Arbitrator Review Board and will allow the arbitrator full 
opportunity to present all pertinent arguments.

Section 1404.9

    Subsection (c). Direct appointments by FMCS at the request of 
parties using the new ``list'' service has been clarified.
    Subsection (f)--Public comments ran three to one against the 
proposed subsection (f) language which would have allowed one party to 
request services other than a standard panel if the party certified 
that both parties agreed to the request and that the request did not 
conflict with the collective bargaining agreement. The comments warned 
that this practice could and probably would be frequently abused. The 
original proposed language has therefore been eliminated. The new 
language restates previous policy that unilateral requests for anything 
other than a standard panel or list will not be honored unless 
authorized in the applicable collective bargaining agreement. This 
includes requests for second and third panels and for direct 
appointments of arbitrators.
    Subsection (g)--Language has been added to clarify that the fees 
may be paid by either labor or management or both parties. We received 
12 comments specifically supporting the fee for service and five (5) 
opposed. Federal management officials expressed hope that credit cards 
could be used. Both Master Card and Visa are acceptable methods of 
payment.

Section 1404.11

    Subsection (a)--This section reflects the deletion of the proposed 
1404.9(f) language. It reiterates that requests for other than a list 
of arbitrators or a panel of seven (7) names must be jointly made. 
Unilateral requests will be honored only if allowed in the collective 
bargaining agreement.
    The section also states that all arbitrator fees will now be listed 
on the biographical sketches. This change responds to many written 
requests that this information be added.
    Subsection (c)(2)--A sentence has been added clarifying that the 
parties' inclusion or exclusion of names may not be for illegal 
discriminatory reasons.

Section 1404.12

    Subsection (c)(3)--A new provision has been added as the result of 
the focus group. To avoid delays in the process, once one party submits 
its prioritized selection of arbitrators, the other party will be 
informed that it has fourteen (14) days to submit its selection, or the 
first party's choice will be honored. This applies only to those 
parties separately submitting their selections.
    Subsection (d)--Direct appointments of arbitrators by FMCS must be 
jointly requested unless authorized by the applicable collective 
bargaining agreement. This responds to comments received about proposed 
Section 1404.9(f).

Section 1404.15

    Subsection (a)--FMCS received 29 specific comments, virtually all 
from arbitrators, on charging an annual listing fee for arbitrators. 
Twenty-two of the comments were supportive of the fee. Negative 
comments ranged from a belief that FMCS provided no services to 
arbitrators to a feeling that public taxes were already paying for the 
operation of the Service. Two individuals felt that the $100 fee would 
have a significant economic impact on the small businesses that 
arbitrators operate. Several supporters of the fee requested more 
information on how often their names were submitted to the parties. 
This will be done as part of the annual invoice process.
    In view of the overall support this proposal generated, FMCS will 
implement its proposed annual listing fees. In addition, arbitrators 
with dual addresses may now charge the parties from their ``least 
expensive'' address.
    Subsection (d)--In response to comments by several arbitrators, a 
statement has been added that FMCS may deny its services to those 
parties who repeatedly fail to pay arbitrators for their services.

List of Subjects in 29 CFR Part 1404

    Administrative practice and procedure, Labor management relations.

    For the reasons stated in the preamble, the Federal Mediation and 
Conciliation Service revises 29 CFR Part 1404 to read as follows:

PART 1404--ARBITRATION SERVICES

Subpart A--Arbitration Policy; Administration of Roster

Sec.
1404.1  Scope and authority.
1404.2  Policy.
1404.3  Administrative responsibilities.

Subpart B--Roster of Arbitrators; Admission and Retention

1404.4  Roster and status of members.
1404.5  Listing on the roster; criteria for listing and retention.
1404.6  Inactive status.
1404.7  Listing fee.

Subpart C--Procedures for Arbitration Services

1404.8  Freedom of choice.
1404.9  Procedures for requesting arbitration lists and panels.
1404.10  Arbitrability.
1404.11  Nominations of arbitrators--Standard and non-standard 
panels.
1404.12  Selection by parties and appointments 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.

[[Page 34172]]

Appendix to Part 1404--Arbitration Policy; Schedule of Fees

    Authority: 29 U.S.C. 172 and 29 U.S.C. 173 et seq.

Subpart A--Arbitration Policy; Administration of Roster


Sec. 1404.1  Scope and authority.

    This chapter is issued by the Federal Mediation and Conciliation 
Service (FMCS) under Title II of the Labor Management Relations Act of 
1947 (Pub. L. 80-101) as amended. It applies to all arbitrators listed 
on the FMCS Roster of Arbitrators, to all applicants for listing on the 
Roster, and to all persons or parties seeking to obtain from FMCS 
either names or panels of names of arbitrators listed on the Roster in 
connection with disputes which are to be submitted to arbitration or 
factfinding.


Sec. 1404.2  Policy.

    The labor policy of the United States promotes and encourages the 
use of voluntary arbitration to resolve disputes over the 
interpretation or application of collective bargaining agreements. 
Voluntary arbitration and factfinding are important features of 
constructive employment relations as alternatives to economic strife.


Sec. 1404.3  Administrative responsibilities.

    (a) Director. The Director of FMCS has responsibility for all 
aspects of FMCS arbitration activities and is the final agency 
authority on all questions concerning the Roster and FMCS arbitration 
procedures.
    (b) Office of Arbitration Services. The Office of Arbitration 
Services (OAS) maintains a Roster of Arbitrators (the Roster); 
administers subpart C of this part (Procedures for Arbitration 
Services); assists, promotes, and cooperates in the establishment of 
programs for training and developing new arbitrators; and provides 
names or panels of names of listed arbitrators to parties requesting 
them.
    (c) Arbitrator Review Board. The Arbitrator Review Board shall 
consist of a chairman and members appointed by the Director who shall 
serve at the Director's pleasure. The Board shall be composed entirely 
of full-time officers or employees of the Federal Government and shall 
establish procedures for carrying out its duties.
    (1) Duties of the Board. The Board shall:
    (i) Review the qualifications of all applicants for listing on the 
Roster, interpreting and applying the criteria set forth in 
Sec. 1404.5;
    (ii) Review the status of all persons whose continued eligibility 
for listing on the Roster has been questioned under Sec. 1404.5;
    (iii) Recommend to the Director the acceptance or rejection of 
applicants for listing on the Roster, or the withdrawal of listing on 
the Roster for any of the reasons set forth in this part;
    (iv) At the request of the Director of FMCS, review arbitration 
policies and procedures, including all regulations and written guidance 
regarding the use of the FMCS arbitrators, and make recommendations 
regarding such policies and procedures to the Director.
    (2) [Reserved]

Subpart B--Roster of Arbitrators; Admission and Retention


Sec. 1404.4  Roster and status of members.

    (a) The Roster. FMCS shall maintain a Roster of labor arbitrators 
consisting of persons who meet the criteria for listing contained in 
Sec. 1404.5 and who remain in good standing.
    (b) Adherence of standards and requirements. Persons listed on the 
Roster shall comply with FMCS rules and regulations pertaining to 
arbitration and with such guidelines and procedures as may be issued by 
the OAS pursuant to subpart C of this part. Arbitrators shall conform 
to the ethical standards and procedures set forth in the Code of 
Professional Responsibility for Arbitrators of Labor Management 
Disputes, as approved by the National Academy of Arbitrators, Federal 
Mediation and Conciliation Service, and the American Arbitration 
Association.
    (c) Status of arbitrators. Persons who are listed on the Roster and 
are selected or appointed to hear arbitration matters or to serve as 
factfinders do not become employees of the Federal Government by virtue 
of their selection or appointment. Following selection or appointment, 
the arbitrator's relationship is solely with the parties to the 
dispute, except that arbitrators are subject to certain reporting 
requirements and to standards of conduct as set forth in this part.
    (d) Role of FMCS. 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;
    (5) Compel, deny, or modify payment of compensation to an 
arbitrator.
    (e) Nominations and panels. On request of the parties to an 
agreement to arbitrate or engage in factfinding, or where arbitration 
or factfinding may be provided for by statute, OAS will provide names 
or panels of names for a nominal fee. Procedures for obtaining these 
services are outlined in subpart C of this part. Neither the submission 
of a nomination or panel nor the appointment of an arbitrator 
constitutes a determination by FMCS that an agreement to arbitrate or 
enter factfinding proceedings exists; nor does such action constitute a 
ruling that the matter in controversy is arbitrable under any 
agreement.
    (f) Rights of persons listed on the Roster. No person shall have 
any right to be listed or to remain listed on the Roster. FMCS retains 
its authority and responsibility to assure that the needs of the 
parties using its services are served. To accomplish this purpose, FMCS 
may establish procedures for the preparation of panels or the 
appointment of arbitrators or factfinders which include consideration 
of such factors as background and experience, availability, 
acceptability, geographical location, and the expressed preferences of 
the parties. FMCS may also establish procedures for the removal from 
the Roster of those arbitrators who fail to adhere to provisions 
contained in this part.


Sec. 1404.5  Listing on the roster; criteria for listing and retention.

    Persons seeking to be listed on the Roster must complete and submit 
an application form which may be obtained from OAS. Upon receipt of an 
executed application, OAS will review the application, assure that it 
is complete, make such inquiries as are necessary, and submit the 
application to the Arbitrator Review Board. The Board will review the 
completed application under the criteria in paragraphs (a), (b), and 
(c) of this section, and will forward to the FMCS Director its 
recommendation as to whether or not the applicant meets the criteria 
for listing on the Roster. The Director shall make all final decisions 
as to whether an applicant may be listed on the Roster. Each applicant 
shall be notified in writing of the Director's decision and the reasons 
therefor.
    (a) General criteria. Applicants for the Roster will be listed on 
the Roster upon a determination that they are experienced, competent, 
and acceptable in decision-making roles in the resolution of labor 
relations disputes.
    (b) Proof of qualification. Qualifications for listing on the 
Roster may be demonstrated by submission of five (5) arbitration awards 
prepared by the applicant while serving as an impartial arbitrator of 
record chosen by the parties to labor disputes arising under collective 
bargaining agreements. The Board will consider experience in relevant 
positions in collective

[[Page 34173]]

bargaining or as a judge or hearing examiner in labor relations 
controversies as a substitute for such awards.
    (c) Advocacy. Any person who at the time of application is an 
advocate as defined in paragraph (c)(1) of this section, must agree to 
cease such activity before being recommended for listing on the Roster 
by the Board. Except in the case of persons listed on the Roster as 
advocates before November 17, 1996, any person who did not divulge his 
or her advocacy at the time of listing or who becomes an advocate while 
listed on the Roster, shall be recommended for removal by the Board 
after the fact of advocacy is revealed.
    (1) Definition of advocacy. An advocate is a person who represents 
employers, labor organizations, or individuals as an employee, 
attorney, or consultant, in matters of labor relations, including but 
not limited to the subjects of union representation and recognition 
matters, collective bargaining, arbitration, unfair labor practices, 
equal employment opportunity, and other areas generally recognized as 
constituting labor relations. The definition includes representatives 
of employers or employees in individual cases or controversies 
involving worker's compensation, occupational health or safety, minimum 
wage, or other labor standards matters. This definition of advocate 
also includes a person who is directly associated with an advocate in a 
business or professional relationship, as for example, partners or 
employees of a law firm. Consultants engage only in joint education or 
training or other non-adversarial activities will not be deemed as 
advocates.
    (2) [Reserved]
    (d) Duration of listing, retention. Listing on the Roster shall be 
by decision of the Director of FMCS based upon the recommendations of 
the Arbitrator Review Board. The Board may recommend, and the Director 
may remove, any person listed on the Roster, for violation of this part 
and/or the Code of Professional Responsibility. Notice of cancellation 
or suspension shall be given to a person listed on the Roster whenever 
a Roster member:
    (1) No longer meets the criteria for admission;
    (2) Has become an advocate as defined in paragraph (c) of this 
section;
    (3) Has been repeatedly or flagrantly delinquent in submitting 
awards;
    (4) Has refused to make reasonable and periodic reports in a timely 
manner to FMCS, as required in subpart C of this part, concerning 
activities pertaining to arbitration;
    (5) Has been the subject of complaints by parties who use FMCS 
services, and the Board after appropriate inquiry, concludes that just 
cause for cancellation has been shown;
    (6) Is determined by the Director to be unacceptable to the parties 
who use FMCS arbitration services; the Director may base a 
determination of unacceptability on FMCS records which show the number 
of times the arbitrator's name has been proposed to the parties and the 
number of times it has been selected. Such cases will be reviewed for 
extenuating circumstances, such as length of time on the Roster or 
prior history.
    (e) The Board may, at its discretion, conduct an inquiry into the 
facts of any proposed removal from the Roster. An arbitrator listed on 
the Roster may only be removed after 60-day notice and an opportunity 
to submit a response or information showing why the listing should not 
be canceled. The Board may recommend to the Director whether to remove 
an arbitrator from the Roster. All determinations to remove an 
arbitrator from the Roster shall be made by the Director. Removals may 
be for a period of up to two (2) years, after which the arbitrator may 
seek reinstatement.
    (f) The Director of OAS may suspend for a period not to exceed 180 
days any person listed on the Roster who has violated any of the 
criteria in paragraph (d) of this section. Arbitrators shall be 
promptly notified of a suspension. They may appeal a suspension to the 
Arbitrator Review Board, which shall make a recommendation to the 
Director of FMCS. The decision of the Director of FMCS shall constitute 
the final action of the agency.


Sec. 1404.6  Inactive status.

    A member of the Roster who continues to meet the criteria for 
listing on the Roster may request that he or she be put in an active 
status on a temporary basis because of ill health, vacation, schedule, 
or other reasons.


Sec. 1404.7  Listing fee.

    All arbitrators will be required to pay an annual fee for listing 
on the Roster, as set forth in the Appendix to this part.

Subpart C--Procedures for Arbitration Services


Sec. 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 OAS, all parties are subject to the procedures 
contained in this part.


Sec. 1404.9  Procedures for requesting arbitration lists and panels.

    (a) The Office of Arbitration Services (OAS) has been delegated the 
responsibility for administering all requests for arbitration services. 
Requests should be addressed to the Federal Mediation and Conciliation 
Service, Office of Arbitration Services, Washington, DC 20427.
    (b) The OAS will refer a panel of arbitrators to the parties upon 
request. The parties are encouraged to make joint requests. In the 
event, however, that the request is made by only one party, the OAS 
will submit a panel of arbitrators. However, the issuance of a panel--
pursuant to either joint or unilateral request--is nothing more than a 
response to a request. It does not signify the adoption of any position 
by the FMCS regarding the arbitrability of any dispute or the terms of 
the parties' contract.
    (c) As an alternative to a request for a panel of names, OAS will, 
upon written request, submit a list of all 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. 
The parties may also request FMCS to make a direct appointment of their 
selection. In such a situation, a case number will be assigned.
    (d) The OAS reserves the right to decline to submit a panel or make 
appointments of arbitrators, if the request submitted is overly 
burdensome or otherwise impracticable. The OAS, in such circumstances, 
may refer the parties to an FMCS mediator to help in the design of an 
alternative solution. The OAS may also decline to service any requests 
from parties with a demonstrated history of non-payment of arbitrator 
fees or other behavior which constrains the spirit or operation of the 
arbitration process.
    (e) The parties are required to use the Request for Arbitration 
Panel (Form R-43), which has been prepared by the OAS and is available 
in quantity upon request to the Federal Mediation and Conciliation 
Service, Office of Arbitration Services, Washington, DC 20427, or by 
calling (202) 606-5111 or at www.fmcs.gov. Requests that do not contain 
all required information requested on the R-43 in typewritten form may 
be rejected.
    (f) Requests made by only one party, for a service other than the 
furnishing of

[[Page 34174]]

a standard list or panel of seven (7) arbitrators, will not be honored 
unless authorized by the applicable collective bargaining agreement. 
This includes unilateral requests for a second or third panel or for a 
direct appointment of an arbitrator.
    (g) The OAS will charge a nominal 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.


Sec. 1404.10  Arbitrability.

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


Sec. 1404.11  Nominations of arbitrators.

    (a) The parties may also report a randomly selected panel 
containing the names of seven (7) arbitrators accompanied by a 
biographical sketch for each member of the panel. This sketch states 
the background, qualifications, experience, and all fees as furnished 
to the OAS by the arbitrator. Requests for a panel of seven (7) 
arbitrators, whether joint or unilateral, will be honored. Requests for 
a panel of other than seven (7) names, for a direct appointment of an 
arbitrator, for special qualifications or other service will not be 
honored unless jointly submitted or authorized by the applicable 
collective bargaining agreement. Alternatively, the parties may request 
a list and biographical sketches of some or all arbitrators in one or 
more designated geographical areas. If the parties can agree on the 
selection of an arbitrator, they may appoint their own arbitrator 
directly without any further case tracking by FMCS. No case number will 
be assigned.
    (b) All panels submitted to the parties by the OAS, and all letters 
issued by the OAS making a direct appointment, will have an assigned 
FMCS case number. All future communications between the parties and the 
OAS should refer to this case number.
    (c) The OAS will provide a randomly selected panel of arbitrators 
located in state(s) in proximity of the hearing site. The parties may 
request special qualifications of arbitrators experienced in certain 
issues or industries or that possess certain backgrounds. The OAS has 
no obligation to put an individual on any given panel, or on a minimum 
number of panels in any fixed period. In general:
    (1) The geographic location of arbitrators placed on panels is 
governed by the site of the dispute as stated on the request received 
by the OAS.
    (2) 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, gender, ethnicity or religious beliefs.
    (d) If the parties do not agree on an arbitrator from the first 
panel, the OAS will furnish a second and third panel to the parties 
upon joint request and payment of an additional fee. Requests for a 
second or third panel should be accompanied by a brief explanation as 
to why the previous panel(s) was inadequate. If parties are unable to 
agree on a selection after having received three panels, the OAS will 
make a direct appointment upon joint request.


Sec. 1404.12  Selection by parties and appointments of arbitrators.

    (a) After receiving a panel of names, the parties must notify the 
OAS of their selection of an arbitrator or of the decision not to 
proceed with arbitration. Upon notification of the selection of an 
arbitrator, the OAS will make a formal appointment of the arbitrator. 
The arbitrator, upon notification of appointment, is expected to 
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 the OAS of the selection and his or her 
willingness to serve. If the parties settle a case prior to the 
hearing, the parties must inform the arbitrator as well as the OAS. 
Consistent failure to follow these procedures may lead to a denial of 
future OAS service.
    (b) If the parties request a list of names and biographical 
sketches rather than a panel, they may choose to appoint and contact an 
arbitrator directly. In this situation, neither the parties nor the 
arbitrator is required to furnish any additional information to FMCS 
and no case number will be assigned.
    (c) Where the parties' collective bargaining agreement is silent on 
the manner of selecting arbitrators, the parties may wish to consider 
any jointly determined method or one of the following methods for 
selection of an arbitrator from a panel:
    (1) Each party alternately strikes a name from the submitted panel 
until one remains, or
    (2) Each party advises the OAS of its order of preference by 
numbering each name on the panel and submitting the numbered lists in 
writing to the OAS. The name that has the lowest combined number will 
be appointed.
    (3) In those situations where the parties separately notify the OAS 
of their preferred selections, once the OAS receives the preferred 
selection from one party, it will notify the other party that it has 
fourteen (14) days in which to submit its selections. If that party 
fails to respond within the deadline, the first party's choice will be 
honored. If, within 14 days, a second panel is requested and is allowed 
by the collective bargaining agreement, the requesting party must pay a 
fee for the second panel.
    (d) The OAS will make a direct appointment of an arbitrator only 
upon joint request unless authorized by the applicable collective 
bargaining agreement.
    (e) The issuance of a panel of names or a direct appointment in no 
way signifies a determination on arbitrability or an interpretation of 
the terms and conditions of the collective bargaining agreement. The 
resolution of such disputes rests solely with the parties.


Sec. 1404.13  Conduct of hearings.

    All proceedings conducted by the arbitrators shall be in conformity 
with the contractual obligations of the parties. The arbitrator shall 
comply with Sec. 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.


Sec. 1404.14  Decision and award.

    (a) Arbitrators shall make awards no later than 60 days from the 
date of the closing of the record as determined by the arbitrator, 
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 the OAS whenever a decision is unduly 
delayed. The arbitrator shall notify the OAS if and when the 
arbitrator:

[[Page 34175]]

    (1) Cannot schedule, hear, and render decisions promptly, or
    (2) Learns a dispute has been settled by the parties prior to the 
decision.
    (c) Within 15 days after an award has been submitted to the 
parties, the arbitrator shall submit an Arbitrator's Report and Fee 
Statement (Form R-19) to OAS showing a breakdown of the fee and expense 
charges so that the OAS may review conformance with stated charges 
under Sec. 1404.11(a). The Form R-19 is not to be used to invoice the 
parties.
    (d) While FMCS encourages the publication of arbitration awards, 
arbitrators should not publicize awards if objected to by one of the 
parties.


Sec. 1404.15  Fees and charges of arbitrators.

    (a) FMCS will charge all arbitrators an annual fee to be listed on 
the Roster. All arbitrators listed on the Roster may charge a per diem 
and other predetermined fees for services, if the amount of such fees 
have been provided in advance to FMCS. Each arbitrator's maximum per 
diem and other fees are set forth on a biographical sketch which is 
sent to the parties when panels are submitted. The arbitrators shall 
not change any fee or add charges without giving at least 30 days 
advance written notice to FMCS. Arbitrators with dual business 
addresses must bill the parties for expenses from the least expensive 
business address to the hearing site.
    (b) In cases involving unusual amounts of time and expenses 
relative to the pre-hearing and post-hearing administration of a 
particular case, an administrative charge may be made by the 
arbitrator.
    (c) Arbitrators shall divulge all charges to the parties and obtain 
agreement thereto immediately after appointment.
    (d) The OAS requests that it be notified of any arbitrator's 
deviation from the policies expressed in this part. While the OAS does 
not resolve individual fee disputes, repeated complaints concerning the 
fees charged by an arbitrator will be brought to the attention of the 
Arbitrator Review Board for consideration. Similarly, repeated 
complaints by arbitrators concerning non-payment of fees by the parties 
may lead to the denial of services or other actions by the OAS.


Sec. 1404.16  Reports and biographical sketches.

    (a) Arbitrators listed on the Roster shall execute and return all 
documents, forms and reports required by the OAS. They shall also keep 
the OAS informed of changes of address, telephone number, availability, 
and of any business or other connection or relationship which involves 
labor-management relations or which creates or gives the appearance of 
advocacy as defined in Sec. 1404.5(c)(1).
    (b) The OAS will provide biographical sketches on each person 
admitted to the Roster from information supplied by applicants. 
Arbitrators may request revision of biographical information at later 
dates to reflect changes in fees, the existence of additional charges, 
or other relevant data. The OAS reserves the right to decide and 
approve the format and content of biographical sketches.

Appendix to 29 CFR Part 1404 Arbitration Policy; Schedule of Fees

Annual listing fee for all arbitrators: $100 for the first address; 
$50 for second address
Request for panel of arbitrators: $30 for each panel request 
(includes subsequent appointment)
Direct appointment of arbitrator when a panel is not used--$20 per 
appointment
List and biographic sketches of arbitrators in a specific area--$10 
per request plus $.10 per page
John Calhoun Wells,
Director.
[FR Doc. 97-16387 Filed 6-24-97; 8:45 am]
BILLING CODE 6732-10-M