[Federal Register Volume 69, Number 152 (Monday, August 9, 2004)]
[Proposed Rules]
[Pages 48177-48183]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-18133]


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NATIONAL MEDIATION BOARD

29 CFR Part 1210


Administration of Arbitration Programs

AGENCY: National Mediation Board.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The NMB has been considering changes to its rules and 
procedures to facilitate the more timely resolution of grievances 
(``minor disputes'') among grievants and carriers in the railroad 
industry. Because of its role in the administration of this program, 
the NMB has solicited public input on the factors that it should 
consider in accomplishing this goal. In particular, because of the 
NMB's statutory responsibility for the appointment and compensation of 
neutral arbitrators (``referees'') to resolve deadlocks within NRAB 
divisions, and the NMB's overall statutory responsibility for the 
administrative processing of grievances to facilitate the timely 
resolution of disputes in the rail industry through PLBs and SBAs, the 
NMB has been considering what initiatives it may undertake to further 
the resolution of minor disputes on a more timely and expeditious 
basis. The Board is today proposing to establish a new Part 1210 to its 
rules appearing at 29 CFR, Chapter X, to accomplish these goals.

DATES: Comments must be in writing and must be received by September 8, 
2004.

ADDRESSES: Submit written comments to: Roland Watkins, Director of 
Arbitration/NRAB Administrator, National Mediation Board, 1301 K 
Street, NW., Suite 250 `` East, Washington, DC 20005. Attn: NMB Docket 
No. 2003-01N. You may submit your comments via letter, or 
electronically through the Internet to the following address: 
[email protected]. If you submit your comments electronically, please put the 
full body of your comments in the text of the electronic message and 
also as an attachment readable in MS Word. Please include your name, 
title, organization, postal address, telephone number, and e-mail 
address in the text of the message. Comments may also be submitted via 
facsimile to (202) 692-5086. Please cite NMB Docket No. 2003-01N in 
your comment.

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FOR FURTHER INFORMATION CONTACT: Roland Watkins, NRAB Administrator, 
1301 K Street, NW., Suite 250 East, Washington, DC 20005 (telephone: 
202-692-5000).

SUPPLEMENTARY INFORMATION:

A. Background and Summary

    The Railway Labor Act (RLA), 45 U.S.C. 151 et seq. establishes the 
National Mediation Board (NMB) whose functions, among others, are to 
administer certain provisions of the RLA with respect to the 
arbitration of labor disputes in the rail industry, including the 
administration of the National Railroad Adjustment Board (NRAB), 
established under 45 U.S.C. 153, First, and the Public Law Boards 
(PLBs) and Special Boards of Adjustment (SBAs) established pursuant to 
45 U.S.C. 153, Second. 45 U.S.C. 154, Third, provides the NMB with 
authority for administration, including making expenditures for 
necessary expenses, of the NRAB, the PLBs and SBAs.
    Pursuant to its authority under 45 U.S.C. 154, Third, the NMB has 
been considering changes to its rules to better facilitate the timely 
resolution of minor disputes between grievants and carriers in the 
railroad industry. Because of its fundamental role in the 
administration of the NRAB, PLBs and SBAs, the NMB solicited public 
comment on the various factors that might be considered in 
accomplishing this goal.
    On August 7, 2003, the NMB issued an Advance Notice of Proposed 
Rulemaking (ANPRM) (68 FR 46983) soliciting public comment on six 
different issues that had been identified by the Board as critical to 
the improvement of the minor dispute resolution process in the rail 
industry. In addition, the NMB held a public hearing on December 19, 
2003 (see 68 FR 66500, Nov. 26, 2003) to receive in person testimony 
from interested parties.
    As a result of the ANPRM and the public hearing, the NMB received 
numerous comments from interested parties. In response to the public 
comments, the Board is now proposing to add a new Part 1210 to its 
rules appearing at 29 CFR, Chapter X. Proposed Part 1210, 
``Administration of Arbitration Program--National Railroad Adjustment 
Board, Public Law Boards (PLBs) and Special Boards of Adjustment 
(SBAs)'' establishes the NMB's procedures and policies with respect to 
the arbitration of minor disputes in the rail industry.
    Highlights of proposed Part 1210 focus on the NMB's administrative 
responsibilities with respect to the various arbitration fora; NMB 
criteria for establishment and maintenance of rosters of arbitrators; 
criteria for listing on the roster of arbitrators; procedures for 
parties to request arbitration services from the NMB; case 
consolidation; time frames for processing of decision and awards; and, 
the NMB's proposed fee schedule for arbitration services.

B. Public Comments

    The NMB solicited public comments via an ANPRM issued on August 7, 
2003 (68 FR 46983). Six public timely sets of public comments were 
received in response to the ANPRM. The Board posed six written question 
sets to commenters. These six question sets, and a summary of the 
responses received are discussed below. The NMB is very appreciative of 
the time, effort and thoughtfulness expressed by the commenters in 
their written responses.
    Question One: If the NMB promulgates procedures for the 
administrative processing of NRAB cases in which the parties request 
that the Government compensate the neutral (``referee''), what should 
be the criteria or guidelines for these procedures?
    It has been suggested to the NMB, that a desirable goal is to have 
minor disputes resolved within one year of the filing of a Notice of 
Intent to File a Submission. At present, it is not uncommon for cases 
to remain unresolved for two years.
    Summary of public comments received: Although there was a diversity 
of responses, most commenters believed that it was a reasonable goal 
for NRAB proceedings to be completed within one year of the filing of a 
grievance. Commenters, however, differed, on the NMB's role in the 
process. Some commenters, from both the carriers and labor, believed 
that the NMB has no role in providing for the procedures of the NRAB. 
Other commenters recognized that the NMB is responsible for funding the 
NRAB, the PLBs and the SBAs, and urged the Board to use its 
administrative authority with respect to budgeting and funding to make 
sure that the various arbitration boards completed their functions in a 
timely manner--generally within one year of the filing of a grievance.
    Board's response: The NMB has considered the commenters responses 
and agrees, for the present time, that it will not participate in the 
substantive decision-making process with respect to cases before the 
NRAB. However, the NMB's role with respect to the funding of the NRAB 
and the other arbitration boards, means that the NMB has an important 
role to play. More specifically, the NMB must ensure that its program 
of arbitration services is conducted in a manner that promotes economy 
and efficiency in the NMB's use of public funds, and the timely 
resolution of the NRAB's case backlog. Accordingly, while the NMB does 
not intend, at this time, to prescribe specific case handling 
procedures for the NRAB and the other arbitration boards, the NMB is 
proposing a funding schedule in proposed Sec.  1210.10, that the 
parties will be expected to adhere to unless exempted by the NMB's 
Director of Arbitration Services. The purpose of the proposed schedule 
is to ensure that cases are resolved in a manner that is consistent 
with the efficient expenditure of public funds.
    Question Two: If a stated goal of any new procedures to be adopted 
by the NMB is to have the cases decided by an arbitrator within one 
year from the date of the filing of the Notice of Intent, what steps do 
you recommend comprise this procedure? Do you believe that a one year 
goal is reasonable? If not, why not?
    Summary of public comments received: Virtually all the commenters 
agreed that a one year case resolution goal is a reasonable one for the 
parties to achieve. The only significant difference among commenters in 
their responses was the manner it which it was proposed to achieve this 
goal.
    Some commenters believed that the goal could be achieved solely by 
better cooperation among the parties without NMB involvement. Other 
commenters believed that a lack of funding is precluding the timely 
resolution of cases. Still other commenters suggested that the entire 
system of arbitration, lacking any established time lines for case 
resolution was contributing to the lengthy case resolution process.
    Board's response: The issues involving the length of time necessary 
to conduct arbitration proceedings before the NRAB and the other 
arbitration fora date back almost to the beginning of the passage of 
the RLA. The Act has been amended over the years, and other initiatives 
have been undertaken, all with the stated goal of achieving minor 
disputes resolution within one year of the initial filing of a Notice 
of Intent.
    It is the NMB's belief that the present system of arbitration, 
lacking any incentives or ``teeth'' simply does not offer the parties 
any reason to adhere to a one year time frame for the resolution of 
cases. Accordingly, the Board is proposing in Sec.  1210.10, a time 
frame for the payment of arbitration services that will require, in 
order to be paid with public funds, that arbitrators must issue 
decisions within one year of the filing of a Notice of Intent, unless 
an exemption is granted by the NMB's Director of Arbitration Services. 
In order

[[Page 48179]]

to ensure that case processing is expedited, proposed Sec.  1210.10 
also establishes specific case processing requirements that must be met 
in order to ensure that the NMB makes payment to the arbitrator.
    Question Three: If the parties do not agree to follow the 
procedures adopted by the NMB, should there be any adverse 
consequences? Should the parties have options with respects to these 
procedures? What would you recommend be the steps that comprise an 
efficient case resolution procedure?
    Summary of public comments received: Since many commenters did not 
believe that the NMB has any role--other than that of funding the 
arbitration process--they did not believe that the Board had a role to 
play with respect to the questions posed. Conversely, some commenters 
suggested that arbitrators be barred from hearing cases if they did not 
meet established decision time frames.
    Nevertheless, certain common themes emerged, as discussed above, 
that strongly suggested that a one year case resolution goal was a 
reasonable one with respect to minor disputes.
    Board's response: Since this proposed rule effectively establishes 
a one-year time frame for the resolution of arbitration cases, the NMB 
has tentatively decided to bar the assignment of additional cases to 
those arbitrators who do not meet the proposed stated time frames. 
Additionally, the NMB will not pay for arbitration decisions that are 
not rendered within the proposed time frames.
    Question Four: What should happen to those cases that are still 
pending after one year in which the parties have not placed the cases 
before a Public Law Board, pursuant to 45 U.S.C. Sec.  153, Second? If 
the cases are placed before a Public Law Board, should a time limit be 
imposed for the resolution of those cases?
    This question addressed cases at the NRAB which have been pending 
for more than one year.
    Summary of public comments received: The commenters generally 
believed that the establishment of case resolution time standards (for 
NMB payment of arbitration) would adequately address the issue of cases 
pending before an NRAB Division for more than one year. With respect to 
PLBs, some commenters opined that the NMB had no role to play 
whatsoever (with the exception of funding of the PLBs). Other 
commenters suggested that any case resolution time frames established 
for the NRAB, should apply equally to the PLBs.
    Board's response: The NMB concurs with those commenters who believe 
that the establishment of a one-year case resolution standard for NRAB 
proceedings should adequately address the NMB's concerns. The NMB also 
agrees with those commenters who believe that the same basic case 
resolution time frame should be applicable to proceedings of the PLBs. 
Accordingly, proposed Sec.  1210.10(c) states that the NMB will only 
pay for the arbitration of cases on PLBs heard and decided within one 
year of the addition of the matter to the respective PLB.
    Question Five: In order to ensure the most efficient use of limited 
Government resources, should the NMB, in agreeing to pay for the 
appointment of an arbitrator (``referee'') require the consolidation of 
similar cases dealing with similar issues? If, in your view, case 
consolidation is a viable option for improving the resolution of cases, 
what should be the standards adopted for consolidation? What should the 
NMB do if the parties refuse to consolidate cases, when in the NMB's 
view, it would be appropriate to do otherwise?
    Summary of public comments received: Many commenters believed that 
case consolidation could serve many beneficial purposes. However, 
nearly all the comments suggested that case consolidation was filled 
with pitfalls. Who would decide when case consolidation was 
appropriate? How would ``similar'' cases be defined and identified? In 
general, the commenters believed that case consolidation, while 
conceptually sound, could not be done without the concurrence of all 
parties.
    Board's response: The NMB believes that case consolidation is an 
initiative that the parties need to consider, and one that should be 
pursued. The Board believes that many of the cases pending before the 
NRAB, PLBs and SBAs are similar in nature, or are based on the same 
underlying facts and/or circumstances. To this end, the NMB proposed 
that the parties attempt to develop broad criteria or guidelines for 
case consolidation. While the Board is hopeful that consolidation 
criteria can eventually be developed by the parties, the Board is also 
mindful of its existing responsibilities to provide for the efficient 
and economical expenditure of public funds. Accordingly, proposed Sec.  
1210.9 permits the NMB's Director of Arbitration Services to 
consolidate the arbitration of minor disputes when he/she determines 
that this will serve the interests of economy and/or efficiency of the 
NMB's program for the administration of arbitration services. The NMB 
anticipates that this authority will be used judiciously, and is 
hopeful that in the near future the parties will come to agreement on 
criteria that may be used to foster case consolidation, when 
appropriate.
    Question Six: As the goal of this initiative is to improve the 
processing of disputes before the NRAB, are there any other 
recommendations or suggestions that you would make to the NMB with 
regard to its statutory responsibilities for the administration of the 
NRAB?
    Summary of public comments received: Several commenters offered 
additional suggestions to reduce the current case backlog at the 
various arbitration fora administered by the NMB. Among the suggestions 
received were: ``parties pay,'' ``loser pays'' and the establishment of 
filing fees for arbitration services.
    Board's response: The NMB has considered these suggestions 
carefully, in the context of incentives to reduce the current case 
backlog. The Board believes that the backlog is caused, to some extent, 
by the lack of incentives to process cases expeditiously. The Board 
believes that the proposed case resolution time frames will contribute 
significantly to the reduction of this backlog by creating financial 
incentives to expeditiously resolve cases. In addition, the Board 
believes that the parties have a responsibility to file and progress 
those cases having merit, and to consolidate as many grievances as 
possible that relate to the same underlying sets of facts, 
circumstances and issues. As such, the NMB is proposing to establish 
fees for certain arbitration services provided by the NMB. These fees, 
which represent only a very small portion of the actual costs of 
providing the respective services, are designed to encourage the 
parties to make the most efficient use of the NMB's program of 
arbitration services.

C. Public Hearing

    On November 26, 2003, the NMB published a notice in the Federal 
Register (68 FR 66500) inviting interested parties to a public hearing 
on the ANPRM. The public hearing was held on December 19, 2003 at the 
National Labor Relations Board hearing room. Two respondents requested 
to appear and speak before the Board. These commenters presented a 
summary of the various arguments previously presented to the NMB in 
their written submissions to the ANPRM. In general, these commenters 
well represented the divergence of opinion with respect to the NMB's 
proposal to amend its rules to further the processing of cases under 
the arbitration programs for which it is

[[Page 48180]]

statutorily responsible for administering.
    The NMB's responses to the arguments of the parties appearing at 
the public hearing are discussed above, in the sections entitled 
``Board's responses.''

D. Additional Public Comments

    Interested persons are invited to participate by submitting data, 
views or arguments with respect to this NPRM. All comments must be in 
writing and must be submitted to the address indicated in the ADDRESSES 
section.

E. Regulatory Flexibility Act

    The NMB does not expect this proposed rule to have a significant 
economic impact on a substantial number of small entities within the 
meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. The 
NMB will consider comments from small entities concerning the effect of 
this proposal upon their operations in accordance with 5 U.S.C. 610. 
Interested parties must submit such comments separately and should cite 
5 U.S.C. 601, et seq., in correspondence.

F. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because this proposed 
rule does not impose information collection requirements that require 
the approval of the Office of Management and Budget under 44 U.S.C. 
3501, et seq.

List of Subjects in 29 CFR Part 1210

    Administrative practice and procedure, Labor management relations.

    Dated: August 2, 2004.
Roland Watkins,
National Railroad Adjustment Board Administrator.

    Therefore, the National Mediation Board proposes to amend 29 CFR 
Chapter X by adding a new Part 1210 as set forth below:

PART 1210--ADMINISTRATION OF ARBITRATION PROGRAMS--NATIONAL 
RAILROAD ADJUSTMENT BOARD (NRAB), PUBLIC LAW BOARDS (PLBs) AND 
SPECIAL BOARDS OF ADJUSTMENT (SBAs)

Sec.
1210.1 Scope and authority.
1210.2 Policy.
1210.3 Administrative responsibilities.
1210.4 Roster and status of arbitrators.
1210.5 Listing on the roster; criteria for listing and retention.
1210.6 Freedom of choice.
1210.7 Procedures for requesting arbitrators.
1210.8 Arbitrability.
1210.9 Consolidation of cases.
1210.10 Decision and award.
1210.11 Reports.
1210.12 Fees.

    Authority: 44 Stat. 577, as amended; 45 U.S.C. 151-163


Sec.  1210.1  Scope and authority.

    This chapter is issued by the National Mediation Board (NMB) under 
the authority of section 3 of the Railway Labor Act (RLA), as amended, 
45 U.S.C. 153. It applies to all arbitration proceedings conducted by 
the NRAB, as well as all PLBs and SBAs.


Sec.  1210.2  Policy.

    (a) The NMB administers, through the NRAB, PLBs, and SBAs, a 
program to resolve ``minor disputes'' in the railroad industry.
    (1) When the NRAB is unable to resolve the dispute, the NMB, may 
designate a ``referee'' or ``neutral'' (herein after referred to as an 
``arbitrator'') to resolve the matter.
    (2) A PLB is comprised of a carrier and a union representative, as 
well as an arbitrator certified by the NMB.
    (3) An SBA is comprised of a carrier and a union representative, as 
well as an arbitrator certified by the NMB.
    (b) When the NMB designates an arbitrator to resolve the minor 
dispute, the RLA states that the NMB may pay the costs associated with 
the arbitrator's decision.
    (c) While the NMB does not directly participate in the substantive 
decision-making process with respect to the NRAB, PLBs, and SBAs, the 
NMB has a responsibility to ensure the economy, efficiency and 
effective administration of the program through the expenditure of 
public funds.


Sec.  1210.3  Administrative responsibilities.

    (a) National Mediation Board. The NMB has responsibility for all 
aspects of NRAB, PLB, and SBA arbitration activities and is the final 
authority on all questions concerning the appointment of arbitrators. 
The NMB also has responsibility for all NMB procedures relating to the 
administration of arbitration programs requiring the expenditure of 
public funds.
    (b) Director of Arbitration Services/NRAB Administrator. The NMB's 
Director of Arbitration Services (who also serves as the Administrator 
of the National Railroad Adjustment Board) maintains a Roster of 
Arbitrators; and assists and promotes the use of arbitrators by the 
NRAB, PLBs and SBAs. The Director of Arbitration Services cooperates 
with the respective Boards, and provides names or panels of names of 
listed arbitrators to parties requesting them.
    (c) The NMB has responsibility for all aspects of the 
administrative processing of all cases at the NRAB and all records 
associated with PLBs and SBAs since these boards are established by the 
NMB.


Sec.  1210.4  Roster and status of arbitrators.

    (a) The Director of Arbitration Services shall maintain the NMB 
Roster of Arbitrators (``Roster'') consisting of persons who meet the 
criteria for listing and who remain in good standing.
    (b) Adherence of standards and requirements. Persons listed on the 
Roster shall comply with NMB standards and requirements pertaining to 
arbitration and with such guidelines and procedures as may be issued by 
the Director of Arbitration Services. 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 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 for the NRAB, 
PLBs, or SBAs do not become employees of the Federal Government by 
virtue of their selection or appointment. Following selection or 
appointment, the arbitrator's relationship is with the parties to the 
dispute, except that payment of arbitrators is the responsibility of 
the NMB, and certain financial and administrative requirements must be 
met by arbitrators in order to receive compensation from the NMB, and/
or to be assigned cases.
    (d) Role of NMB. With respect to arbitration services funded by the 
NMB pursuant to the Section 3 of the RLA, the NMB does not:
    (1) Compel parties to appear before an arbitrator;
    (2) Compel parties to arbitrate any issue; or
    (3) Influence, alter, or set aside decisions of arbitrators on the 
Roster.
    (e) Nominations and panels. On request of the NRAB, a PLB, or an 
SBA, the Director of Arbitration Services may appoint an arbitrator to 
hear a particular dispute.
    (f) Rights of persons listed on the Roster. No person shall have 
any right to be listed or to remain listed on the Roster. The NMB 
retains its authority and responsibility to assure that the needs of 
the parties requesting its services are served. To accomplish this 
purpose, the NMB may establish procedures for the appointment of 
arbitrators which include consideration of such factors as background 
and

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experience, availability, acceptability, geographical location, and the 
expressed preferences of the parties. The NMB may also establish 
procedures for the removal from the Roster of those arbitrators who 
fail to adhere to provisions contained in this part.


Sec.  1210.5  Listing on the roster; criteria for listing and 
retention.

    (a) Persons seeking to be listed on the Roster must complete and 
submit an application form which may be obtained from the Director of 
Arbitration Services. Upon receipt of an executed application, the 
Director of Arbitration Services will review the application, assure 
that it is complete, and make such inquiries as are necessary. The 
Director of Arbitration Services, subject to the discretion of the NMB, 
shall make all final decisions as to whether an applicant may be listed 
on the Roster. Each applicant shall be notified in writing of his/her 
listing.
    (b) 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 
disputes in the rail and airline industries.
    (c) 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 Director of Arbitration Services may 
consider experience in relevant positions in collective bargaining in 
the airline and/or railroad industries, or a relevant substitute(s) for 
such awards.
    (d) Advocacy. Any person who at the time of application is an 
advocate as defined in paragraph (d)(1) of this section, must agree to 
cease such activity before being listed on the Roster.
    (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 engaged only in joint education or 
training or other non-adversarial activities will not be considered as 
advocates.
    (2) [Reserved]
    (e) Other circumstances precluding placement on the NMB's Roster of 
Arbitrators. An individual will not be placed on the NMB's Roster if 
any one of the following disqualifying conditions is applicable:
    (1) The individual is currently employed by the United States 
Government or is an employee of any State, municipal county or other 
governmental entity within the United States, its territories, 
protectorates or possessions. This disqualification applies to 
governmental employment in a full-time, part-time, ad hoc, per diem or 
other periodic capacity. Approval by the governmental employer for the 
individual to engage in arbitration will not lift or modify this 
restriction. The receipt of compensation from a governmental entity for 
service as an arbitrator, fact finder, or other neutral, or ad hoc 
service as an arbitrator in cases in which a governmental entity is a 
party, shall not constitute a disqualifying relationship for the 
purpose of this part.
    (2) The individual is an employee, officer, trustee, director or 
otherwise is in a full-time or periodic employment relationship with 
any labor organization currently representing or seeking to represent 
employees under the RLA, any carrier subject to the RLA, or any company 
in which proceedings are pending alleging coverage under the RLA. 
Employment with any joint labor/management entity, or as an arbitrator, 
mediator, conciliator, ombudsman, member/trustee on any pension plan 
board, or similar service shall not constitute a disqualifying 
relationship for the purposes of this part.
    (3) The individual is a partner, associate, employee, contractor or 
otherwise associated in a full-time or periodic employment relationship 
with any law firm, consulting firm, trade association, corporation, or 
other entity which advocates or seeks to advocate the partisan 
interests of any labor organization currently representing or seeking 
to represent employees under the RLA, any carrier subject to the RLA, 
or any company in which proceedings are pending alleging coverage under 
the RLA. Employment with any neutral institution such as the National 
Academy of Arbitrators, the American Arbitration Association, or the 
Industrial Relations Research Association shall not constitute a 
disqualifying relationship for the purpose of this part.
    (4) The individual is a partner, associate, member, employee, 
contractor or otherwise associated in a full-time or periodic 
employment relationship with any law firm, consulting firm, trade 
association, corporation, or other entity which provides or seeks to 
provide any partisan-oriented services in connection with labor-
management relations in the United States or otherwise including, but 
not limited to, advocacy, advice, consultation, lobbying or related 
functions with respect to such services. Activities as an ombudsman, 
arbitrator, mediator, conciliator or other neutral, or service with any 
association thereof shall not constitute a disqualifying relationship 
for purposes of this part. Examples of such neutral associations 
include the National Academy of Arbitrators, the American Arbitration 
Association, and the Industrial Relations Research Association.
    (5) The individual currently is suspended or disbarred from 
arbitral service following a determination in an appropriate forum that 
he or she violated the Code of Professional Responsibility for 
Arbitrators of Labor-Management Disputes.
    (6) The individual is not ``wholly disinterested in the controversy 
to be arbitrated and impartial and without bias as between the 
parties'' as provided by 45 U.S.C. 155 Third. The individual is 
``pecuniarily or otherwise interested in any organization of employees 
or any carrier'' as provided by 45 U.S.C. 160. Employment with any 
joint labor/management entity, or as an arbitrator, mediator, 
conciliator, ombudsman, member/trustee on any pension plan board, or 
similar service shall not constitute a disqualifying interest for the 
purposes of this part.
    (7) The individual has failed to comply with the administrative 
requirements prescribed by the National Mediation Board in connection 
with the placement or maintenance on the NMB's Roster of arbitrators or 
other applicable NMB administrative requirements associated with the 
arbitration process.
    (f) Duration of listing, retention. Listing on the Roster shall be 
by decision of the Director of Arbitration Services. The Director of 
Arbitration Services may remove any person listed on the Roster, for 
violation of this part. Notice of cancellation or suspension shall be 
given to a person listed on the Roster whenever a Roster member:

[[Page 48182]]

    (1) No longer meets the criteria for admission;
    (2) Has become an advocate as defined in paragraph (d) 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 the NMB, as required, concerning activities pertaining to 
arbitration;
    (5) Has been the subject of complaints by parties, and the NMB 
after appropriate inquiry, concludes that just cause for cancellation 
has been shown;
    (g) The Director of Arbitration Services may suspend any person 
listed on the Roster who has violated any of the criteria in paragraph 
(e) of this section. Arbitrators shall be promptly notified of a 
suspension.


Sec.  1210.6  Freedom of choice.

    Nothing contained in this part should be construed to limit the 
Members of the NRAB, of the PLBs or the SBAs, whose arbitrators are 
paid by the NMB, from selecting any arbitrator that is acceptable to 
them and is in good standing as determined by the Director of 
Arbitration Services. Once a request is made to the Director of 
Arbitration Services, all parties are subject to the procedures 
contained in Sec.  1210.5.


Sec.  1210.7  Procedures for requesting arbitrators.

    (a) The Director of Arbitration Services has been delegated the 
responsibility for administering all requests for arbitration services. 
Requests should be addressed to the Director of Arbitration Services, 
National Mediation Board, 1301 K Street, NW., Suite 250, East, 
Washington, DC 20572.
    (b) In accordance with Section 3 First, paragraph (l) of the RLA, 
the NMB, acting through the Director of Arbitration Services, will 
select an arbitrator to sit with the appropriate Division of the NRAB 
when the parties are unable or unwilling to agree to the appointment of 
an arbitrator.
    (c) In accordance with Section 3 Second, of the RLA, the NMB, 
acting through the Director of Arbitration Services, will select an 
arbitrator to sit with the appropriate PLB when the parties are unable 
or unwilling to agree to the appointment of an arbitrator.
    (d) The Director of Arbitration Services will select an arbitrator 
to sit with the appropriate SBA when the parties are unable or 
unwilling to agree to the appointment of an arbitrator.
    (e) The Director of Arbitration Services reserves the right to 
decline to make a specific arbitrator appointment, if the request 
submitted by the parties involves appointment of an arbitrator who is 
delinquent in the timely rendering of awards or decisions, or who is 
otherwise in violation of the NMB's administrative procedures for 
arbitrators.
    (f) The appointment of an arbitrator by the NMB in no way signifies 
a determination on arbitrability or an interpretation of the terms and 
conditions of any collective bargaining agreement. The resolution of 
such disputes rests solely with the appropriate boards, the arbitrator, 
or the parties.


Sec.  1210.8  Arbitrability.

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


Sec.  1210.9  Consolidation of cases.

    The Director of Arbitration Services may consolidate the 
arbitration of minor disputes (i.e., grievances) when he/she determines 
that this will serve the interests of economy and/or efficiency of the 
NMB's program for the administration of arbitration services under 
section 3 of the RLA, 45 U.S.C. 153.


Sec.  1210.10  Decision and award.

    (a) The NMB's goal is to economically and efficiently dispose of 
arbitration cases. Accordingly, the NMB will only pay for arbitration 
services when the parties act in accordance with paragraphs (b) and (c) 
of this section.
    (b) The NMB will only pay for arbitration of cases at the NRAB 
which are progressed according to the following schedule:
    (1) Notice of Intent by a party is filed.
    (2) Submissions by the parties shall be filed within 60 days of the 
date of the Director of Arbitration Services' letter acknowledging the 
Notice of Intent. The Director of Arbitration Services may permit a 15 
day time extension, at his/her discretion.
    (3) NRAB Members shall be given 30 days after receipt of the 
submissions to review the case with intent to resolve. Failing 
resolution, the case will be considered deadlocked.
    (4) NRAB Members shall then be given 15 days to certify a case or 
cases to an arbitrator who must hear the case(s) within 60 days of the 
date of certification.
    (5) If NRAB Members fail to certify a case in accordance with 
paragraph (b)(4) of this section, the Director of Arbitration Services 
will appoint an arbitrator within 15 days. The arbitrator shall hear 
the case within 60 days of the date of the Director's certification.
    (6) After an arbitrator hears a case, a decision shall be rendered 
in no more than 60 days.
    (c) The NMB will only pay for the arbitration of cases on PLBs and 
SBAs heard and decided within one year of the addition of the case to 
the Board.
    (d) The following additional requirements are applicable to 
arbitrators paid by the NMB:
    (1) Unless granted an extension by the Director of Arbitration 
Services, failure of the parties to follow the required schedule may 
result in the NMB's denial of payment to the arbitrator.
    (2) A failure to render timely awards reflects upon the performance 
of an arbitrator and may lead to removal from the NMB's Roster.
    (3) The parties shall inform the Director of Arbitration Services 
whenever a decision is unduly delayed. The arbitrator shall notify the 
Director of Arbitration Services if and when the arbitrator:
    (i) Cannot schedule, hear, and render decisions promptly, or
    (ii) Learns a dispute has been settled by the parties prior to the 
decision.


Sec.  1210.11  Reports.

    Arbitrators shall execute and return all documents, forms and 
reports required by the Director of Arbitration Services. They shall 
also keep the Director of Arbitration Services 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.  
1210.5(d)(1).


Sec.  1210.12  Fees.

    (a) The NMB may, from time to time, establish application fees for 
arbitration services. Notice of the establishment of fees, including 
the amount of any fee(s), shall be published in the Federal Register, 
as well as made available on the NMB's Web site (http://www.nmb.gov).
    (b) For the purposes of paragraph (a) of this section, effective 
XX-XX-2005, the NMB's fee schedule for arbitration services is as 
follows:
    (1) National Railroad Adjustment Board grievance filings--$75.00 
per notice of intent.
    (2) Establishment of a public law board--$100.00.
    (3) Establishment of a special board of adjustment--$100.00.
    (4) Establishment of an arbitration board--$100.00.
    (5) Certification of an arbitrator to a public law board, special 
board of adjustment, arbitration board or any

[[Page 48183]]

division of the NRAB--$50.00 per arbitrator certification.
    (6) Request to add a case to an existing board--$50.00 per case.
    (7) Request for a panel of arbitrators--$50.00 per request. The fee 
also applies to a request for a second panel.
    (8) Designation of a partisan member for a public law board--
$75.00.
    (9) Designation of a neutral member for a public law board--$75.00.
    (10) Appointment of an arbitrator for labor protective matters--
$75.00.

[FR Doc. 04-18133 Filed 8-6-04; 8:45 am]
BILLING CODE 7550-01-P