Arbitration Services, 614-619 [2018-27759]

Download as PDF 614 Federal Register / Vol. 84, No. 21 / Thursday, January 31, 2019 / Proposed Rules Dated: January 28, 2019. Mary L. Johnson, General Counsel. [FR Doc. 2019–00406 Filed 1–30–19; 8:45 a.m.] BILLING CODE 7550–01–P FEDERAL MEDIATION AND CONCILIATION SERVICE 29 CFR Part 1404 RIN 3076–AA14 Arbitration Services Federal Mediation and Conciliation Service. ACTION: Notice of proposed rulemaking. AGENCY: The Federal Mediation and Conciliation Service (FMCS) is proposing to revise the current arbitration regulation to clarify existing provisions; eliminate redundancies and provisions that are never used in practice; consolidate sections; update contact information; reduce award submission requirements and reference an apprenticeship alternative for joining the Roster after completion of specified training; implement a modest increase in user fees that have remained unchanged for more than 8 years, and remove section 1404.20. DATES: Comments must be submitted to the office listed in the address section below on or before January 19, 2019. ADDRESSES: Submit written comments identified by RIN 3076–AA14, by mail to Arthur Pearlstein, Director, Office of Arbitration Services, FMCS, 250 E Street SW, Washington, DC 20427. Comments may be submitted by fax to (202) 606– 8103 or electronically to apearlstein@ fmcs.gov. Comments may also be sent by electronic mail message over the internet via the Federal eRulemaking Portal. See Federal eRulemaking Portal website (http://www.regulations.gov) for instructions on providing comments via the Federal Rulemaking Portal. All comments will be available for inspection at 250 E Street SW, Washington, DC 20427, Room 7113 (Reading Room) from 8:30 a.m. to 4:30 p.m. Monday through Friday, excluding legal holidays. FOR FURTHER INFORMATION CONTACT: Arthur Pearlstein, Director, Office of Arbitration Services, FMCS, 250 E Street SW, Washington, Dc 20427. Telephone: (202) 606–8103. SUPPLEMENTARY INFORMATION: The enabling legislation for FMCS provides that ‘‘the settlement of issues between employers and employees through collective bargaining may be advanced by making available full and adequate khammond on DSKBBV9HB2PROD with PROPOSALS SUMMARY: VerDate Sep<11>2014 17:23 Jan 30, 2019 Jkt 247001 governmental facilities for conciliation, mediation, and voluntary arbitration . . .’’ 29 U.S.C. 171(b). Pursuant to the statute and 29 CFR part 1404, FMCS has long maintained a roster of qualified, private labor arbitrators to hear disputes arising under collective bargaining agreements and provide fact finding and interest arbitration. The existing regulation establishes the policy and administrative responsibility for the FMCS Roster, criteria and procedures for listing and removal, procedures for using arbitration services, an option for expedited arbitration and, in the appendix, a schedule of user fees. FMCS is proposing to revise the current arbitration regulation to (1) clarify and shorten existing provisions and naming conventions and make other helpful style improvements; (2) eliminate redundancies and provisions that are never used in practice; (3) consolidate sections for ease of understanding and placement under appropriate headings; (4) update contact information and provisions regarding the use of technology; (5) reduce award submission requirements and reference an apprenticeship alternative for joining the Roster after completion of specified training; and (6) implement a modest increase in user fees that have remained unchanged for more than 8 years. The increased fees more accurately reflect FMCS’s costs of maintaining the Roster and the technology to support it, as well as responding to requests for arbitrator panels and biographical data. The arbitrator listing fee increase would only apply to arbitrators on the Roster for 5 or more years, reflecting the greater likelihood for more experienced arbitrators to be selected by parties. Section-by-Section Analysis 1. In § 1404.1, revise to make minor style improvements 2. In § 1404.3, revise (b) to eliminate ‘‘Services’’ from the Office title and use the abbreviated term ‘‘Roster;’’ revise (c) to make minor style improvements and eliminate (c)(1)(v) as unnecessary so that that it reads as follows: 3. In § 1404.4, revise (b) for minor style improvements, consolidate relevant portions of (d) and (e) to 1404.9 to place under the relevant heading and reduce verbiage, and revise last paragraph to renumber as (d) and eliminate redundant language. 4. In § 1404.5, revise preamble to update contact information and reflect that Director may designate someone to review Board recommendations; revise (b) to clarify requirements; revise (d) to make minor style improvements; specify in (3) that violations by arbitrators are not limited to late awards; clarify in (5) PO 00000 Frm 00043 Fmt 4702 Sfmt 4702 that information about arbitrator misconduct may come to the attention of FMCS in different ways, and remove existing (6) as extraneous and never used; renumber (7) as (6); and revise (f) for minor style improvements. 5. In § 1404.6, revise for minor style improvements, eliminate excess verbiage, and change language in (b) from ‘‘are encouraged to’’ to ‘‘must’’ to clarify requirement for arbitrators whose schedules do not permit timely hearing. 6. In § 1404.9, revise (a) to update contact information, and the rest of the section to incorporate consolidations from 1404.4 and 1404.11, rearrange for clarity, and eliminate redundant language. 7. In § 1404.11, moved existing (a) to 1404.9, and otherwise eliminated redundant or extraneous language throughout. 8. In § 1404.12, revised with minor style changes, eliminated existing (b) due to redundant language, clarified ambiguous and confusing language in existing (c) (new (b)), consolidated existing (d) into new (b), and eliminated (f) for unnecessary language. 9. In § 1404.13, revise with minor style improvement and specify that hearings must conform to Code of Professional Responsibility requirements. 10. In § 1404.14, revise to make minor style improvements, clarify language regarding delay and scheduling, clarify time for submitting arbitrator report and fee statement, and change language regarding consent for award publication to conform with requirements of the Code of Professional Responsibility and industry practice. 11. In § 1404.15, revise (a) to allow arbitrators to raise fees with notice if a case continues for over two years after appointment, (b) to allow arbitrators to specify multiple business addresses, and (d) to clarify information on fee disputes. 12. In § 1404.16, revise (a) to update for technology changes and to require arbitrators to provide contact information in the event they become incapacitated or deceased, and (b) to eliminate excess verbiage. 13. In § 1404.17, revise to eliminate excess verbiage. 14. In § 1404.18, revise to make minor style improvements and reduce words. 15. Remove § 1404.20 as the language is unnecessary and has never been applied. 16. Revise the Appendix to change fee schedules. This rule is not a significant regulatory action for the purposes of Executive Order 12866 and has not been reviewed by the Office of Management E:\FR\FM\31JAP1.SGM 31JAP1 Federal Register / Vol. 84, No. 21 / Thursday, January 31, 2019 / Proposed Rules and Budget. As required by the Regulatory Flexibility Act, I certify that this rule will not have a significant impact on a substantial number of small entities. This regulation does not have any federalism or tribal implications. List of Subjects in 29 CFR Part 1404 Administrative practice and procedures, Labor management relations. For the reasons stated in the preamble, FMCS proposes to revise 29 CFR part 1404 to read as follows: PART 1404—ARBITRATION SERVICES 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 removal, procedure for removal 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 Nomination 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 Subpart D—Expedited Arbitration 1404.17 Policy 1404.18 Procedures for requesting expedited panels 1404.19 Arbitration Process Appendix To Part 1404—Arbitration Policy; Schedule of Fees Authority: 29 U.S.C. 172 and 29 U.S.C. 173 et seq. Source: 62 FR 34171, June 25, 1997, unless otherwise noted. Subpart A—Arbitration Policy; Administration of Roster khammond on DSKBBV9HB2PROD with PROPOSALS 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 (the Roster), to all applicants for listing on the Roster, and to all persons or parties seeking to obtain from VerDate Sep<11>2014 17:23 Jan 30, 2019 Jkt 247001 § 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 fact-finding are important features of constructive employment relations as alternatives to economic strife. § 1404.3 Subpart A—Arbitration Policy; Administration of Roster Sec. 1404.1 Scope and authority 1404.2 Policy 1404.3 Administrative responsibilities § 1404.1 FMCS either names or panels of names of arbitrators listed on the Roster in connection with disputes that are to be submitted to arbitration or fact-finding. 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. The Office of Arbitration (OA) maintains 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 (Board) shall consist of a chair 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 § 1404.5; (ii) Review the status of all persons whose continued eligibility for listing on the Roster has been questioned under § 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, or upon its own volition, review arbitration policies and procedures, including all regulations and written guidance regarding the use of Roster arbitrators, and make recommendations regarding such policies and procedures to the Director (2) [Reserved] PO 00000 Frm 00044 Fmt 4702 Sfmt 4702 615 Subpart B—Roster of Arbitrators; Admission and Retention § 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 § 1404.5 and who remain in good standing. (b) Adherence to 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 OA 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, FMCS, and the American Arbitration Association (‘‘the Code’’). (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) 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 that include consideration of such factors as background and experience, availability, acceptability, geographical location, and the expressed preferences of the parties. § 1404.5 Listing on the roster, criteria for listing and removal, procedure for removal. Persons seeking to be listed on the Roster must complete and submit an application available online at https:// www.fmcs.gov/services/arbitration/ information-joining-arbitrator-roster/. Upon receipt of an executed application, OA will review the application, ensure that it is complete, make such inquiries as are necessary, and submit the application to the 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, or Director’s designee, its E:\FR\FM\31JAP1.SGM 31JAP1 khammond on DSKBBV9HB2PROD with PROPOSALS 616 Federal Register / Vol. 84, No. 21 / Thursday, January 31, 2019 / Proposed Rules 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 therefore. (a) General Criteria. (1) Applicants will be listed on the Roster upon a determination that he or she: (i) Is experienced, competent, and acceptable in decision-making roles in the resolution of labor relations disputes; or (ii) Has extensive and recent experience in relevant positions in collective bargaining; and (iii) Is capable of conducting an orderly hearing, can analyze testimony and exhibits and can prepare clear and concise findings and awards within reasonable time limits. (iv) For applicants who are governmental employees, the following criteria shall also apply: (A) Federal Employees: These applicants must provide OA with written permission from their employer to work as an arbitrator. Federal employees will not be assigned to panels involving the Federal Government. (B) Governmental Employees other than Federal: These applicants must provide OA with written permission from their employer to work as an arbitrator as well as a statement of the jurisdiction(s) in which the applicant is permitted to do this work. (2) FMCS may identify certain positions relating to collective bargaining that will substitute for the General Criteria. FMCS may also identify periodic educational requirements for remaining on the Roster. (b) Proof of Qualification. Unless waived under exceptional circumstances wholly in the discretion of the Director, applicants must: (1) Submit five recent labor arbitration awards that are final and binding, and prepared by the applicant while serving as an impartial arbitrator of record selected by mutual agreement of the parties to labor relations disputes arising under collective bargaining agreements, or by direct designation by an administrative agency, or (2) Successfully complete the FMCS labor arbitrator training course and either submit one award as described above or complete an apprenticeship that meets specifications that FMCS may, in its discretion, provide. Applicants must also submit information demonstrating extensive and recent experience in collective VerDate Sep<11>2014 17:23 Jan 30, 2019 Jkt 247001 bargaining, including at least the position or title held, duties or responsibilities, the name and location of the company or organization, and the dates of employment. (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, 1976, 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 and who did not request to be placed on inactive status pursuant to Sec. 1404.6 prior to becoming an advocate, 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 or employment 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 or employment 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. (2) This definition of advocate also includes a person who is directly or indirectly associated with an advocate in a business or professional relationship as, for example, partners or employees of a law firm. Individuals engaged only in joint education or training or other non-adversarial activities will not be deemed to be advocates. (d) Removal from the Roster shall be by decision of the Director of FMCS based upon the recommendations of the Board or upon the Director’s own initiative. The Board may recommend for removal, and the Director may remove, any arbitrator listed on the Roster for violation of this part or of the Code. FMCS will provide to the affected arbitrator written notice of removal from the Roster. Complaints about arbitrators should be in writing and sent to the Director of OA. The complaint should cite any specific section(s) of the Code or the FMCS rule the arbitrator has allegedly violated. The following criteria shall be a basis for the Board to recommend and/or the Director to PO 00000 Frm 00045 Fmt 4702 Sfmt 4702 initiate an arbitrator’s removal from the Roster: (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 in violation of one or more provisions of this Part; (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 a complaint by a party who uses FMCS services, or engages in conduct inappropriate for an arbitrator which otherwise comes to the attention of FMCS, and the Board, after appropriate inquiry, concludes that cause for removal has been shown; or (6) Has been in an inactive status pursuant to § 1404.6 for longer than two years and has not paid the annual listing fee. (e) Procedure for Removal. Prior to any recommendation by the Board to remove an arbitrator from the Roster, the Board shall conduct an inquiry into the facts of any such recommended removal. When the Board recommends removal of an arbitrator, it shall send the arbitrator a written notice. This notice shall inform the arbitrator of the Board’s recommendation and the basis for it, and that he or she has 60 days from the date of such notice to submit a written response or information showing why the arbitrator should not be removed. When the Director removes an arbitrator from the Roster, he or she shall inform the arbitrator of this in writing, stating the effective date of the removal and the length of time of the removal if it is not indefinite. An arbitrator so removed may seek reinstatement to the Roster by making written application to the Director no earlier than two years after the effective date of his or her removal. (f) Suspension. The Director of OA may suspend, for a period not to exceed 180 days, any arbitrator listed on the Roster based on any of the criteria in paragraph (d) of this section. Arbitrators shall be promptly notified of a suspension. The arbitrator may appeal a suspension to the 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. § 1404.6 Inactive status. (a) An arbitrator on the Roster who continues to meet the criteria for listing on the Roster may request that he or she E:\FR\FM\31JAP1.SGM 31JAP1 Federal Register / Vol. 84, No. 21 / Thursday, January 31, 2019 / Proposed Rules be put in an inactive status on a temporary basis. (b) Arbitrators whose schedules do not permit cases to be heard within six months of assignment must make themselves inactive temporarily until their caseload permits the earlier scheduling of cases. (c) An arbitrator can remain on inactive status without paying any annual listing fee for a period of two years. If an arbitrator is on inactive status for longer than two (2) years, the arbitrator will be removed from the Roster unless the arbitrator pays the annual listing fee. § 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 § 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. khammond on DSKBBV9HB2PROD with PROPOSALS § 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 VerDate Sep<11>2014 17:23 Jan 30, 2019 Jkt 247001 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 nonpayment 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 PO 00000 Frm 00046 Fmt 4702 Sfmt 4702 617 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 E:\FR\FM\31JAP1.SGM 31JAP1 618 Federal Register / Vol. 84, No. 21 / Thursday, January 31, 2019 / Proposed Rules 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. khammond on DSKBBV9HB2PROD with PROPOSALS § 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 60day 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 VerDate Sep<11>2014 17:23 Jan 30, 2019 Jkt 247001 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 prehearing 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 PO 00000 Frm 00047 Fmt 4702 Sfmt 4700 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. Subpart D—Expedited Arbitration § 1404.17 Policy. In an effort to reduce the time and expense of some grievance arbitrations, FMCS offers expedited procedures where the parties agree on a streamlined process with short deadlines. Parties may also agree on their own procedures if it is practicable for FMCS. § 1404.18 Procedures for requesting expedited panels. (a) With the exception of the specific changes noted in this Subpart, all FMCS rules and regulations governing its arbitration services shall apply to Expedited Arbitration. (b) Upon receipt of a joint Request for Arbitration Panel (Form R–43) indicating that both parties desire expedited services, OA will refer a panel of arbitrators which shall be valid for up to 30 days. Only one panel will be submitted per case. If the parties are unable to mutually agree upon an arbitrator or if prioritized selections are not received from both parties within 30 days, OA will make a direct appointment of an arbitrator not on the original panel. (c) If the parties mutually select an arbitrator, but the arbitrator is not available, the parties may select a second name from the same panel or OA will make a direct appointment of another arbitrator not listed on the original panel. § 1404.19 Arbitration process. (a) Once notified of the expedited case appointment by OA, the arbitrator must contact the parties within seven (7) calendar days. (b) The parties and the arbitrator must attempt to schedule a hearing within 30 days of the appointment date. (c) Absent mutual agreement, all hearings will be concluded within one day. No transcripts of the proceedings will be made and the filing of posthearing briefs will not be allowed. (d) All awards must be completed within seven (7) working days from the hearing. These awards are expected to be brief and concise, and to not require extensive written opinion or research time. Appendix to 29 CFR Part 1404— Arbitration Policy; Schedule of Fees Annual listing fee for arbitrators who have completed less than 5 years on the Roster: E:\FR\FM\31JAP1.SGM 31JAP1 Federal Register / Vol. 84, No. 21 / Thursday, January 31, 2019 / Proposed Rules $150 for the first address; $50 for each additional address. Annual listing fee for arbitrators who have completed 5 or more years on the Roster: $250 for the first address; $100 for each additional address. Request for panel of arbitrators processed by FMCS staff: $70.00. Request for panel of arbitrators on-line: $35.00. Direct appointment of an arbitrator when a panel is not used: $30.00 per appointment. List and biographic sketches of arbitrators in a specific area: $35.00 per request plus $.25 per page. Dated: December 18, 2018. Jeannette Walters-Marquez, Attorney-Advisor. [FR Doc. 2018–27759 Filed 1–30–19; 8:45 am] BILLING CODE P DEPARTMENT OF HOMELAND SECURITY I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code COTP Captain of the Port Coast Guard 33 CFR Part 165 [Docket Number USCG–2018–1067] RIN 1625–AA00 Safety Zone: Cape Fear River, Wilmington, NC Coast Guard, DHS. Notice of proposed rulemaking. AGENCY: ACTION: The Coast Guard proposes to establish two temporary safety zones on the navigable waters of the Cape Fear River in Brunswick County and New Hanover County, North Carolina. These temporary safety zones are intended to restrict vessel traffic on the Cape Fear River while a vessel transports and offloads one new Post-Panamax container crane to the North Carolina State Port in Wilmington, North Carolina. The first temporary safety zone will be enforced for one day during vessel transit from March 20 through April 15, 2019, and the second temporary safety zone for offload will be enforced for one day within five days after transit. This action is intended to restrict vessel traffic on the Cape Fear River to protect mariners and vessels from the hazards associated with transporting and offloading the assembled container crane. This proposed rulemaking would prohibit vessels or persons from being in the safety zones unless specifically authorized by the Captain of the Port (COTP) North Carolina or a designated representative. We invite your comments on this proposed rulemaking. khammond on DSKBBV9HB2PROD with PROPOSALS SUMMARY: VerDate Sep<11>2014 17:23 Jan 30, 2019 Jkt 247001 Comments and related material must be received by the Coast Guard on or before March 4, 2019. ADDRESSES: You may submit comments identified by docket number USCG– 2018–1067 using the Federal eRulemaking Portal at https:// www.regulations.gov. See the ‘‘Public Participation and Request for Comments’’ portion of the SUPPLEMENTARY INFORMATION section for further instructions on submitting comments. FOR FURTHER INFORMATION CONTACT: If you have questions about this proposed rulemaking, contact Petty Officer Matthew Tyson, Waterways Management Division, U.S. Coast Guard Sector North Carolina, Wilmington, NC; telephone: 910–772–2221, email: Matthew.I.Tyson@uscg.mil. SUPPLEMENTARY INFORMATION: DATES: II. Background, Purpose, and Legal Basis On November 14, 2018, the North Carolina State Port Authority notified the Coast Guard that it will be transporting one pre-assembled PostPanamax container crane up the Cape Fear River to the North Carolina State Port in Wilmington, North Carolina, and offloading it. The planned transit date is March 25, 2019, and the planned offload date is March 27, 2019. Due to crane preconstruction and vessel travel times, the crane could transit as early as March 20, 2019, and as late as April 15, 2019. The transit path will be from the Cape Fear River Entrance Buoy, north through the Cape Fear River to the turning basin, and ending at the North Carolina State Port in Wilmington, North Carolina. The planned offload date is two days after transit, but weather conditions may change the offload date to any day within five days after transit. The Captain of the Port (COTP) North Carolina has determined that potential safety hazards associated with transporting and offloading the container crane would be a concern for anyone transiting the Cape Fear River. The purpose of this rule is to protect persons, vessels, and the marine environment on the navigable waters on the Cape Fear River during the transport and offload of the container crane. The Coast Guard proposes this rulemaking under authority in 33 U.S.C. 1231. PO 00000 Frm 00048 Fmt 4702 Sfmt 4702 619 III. Discussion of Proposed Rule The COTP proposes to establish a safety zone on a portion of the Cape Fear River to be enforced during the transit of a vessel transporting one preassembled Post-Panamax container crane up the Cape Fear River from March 20 through April 15, 2019, and offloading the container within five days after transit. The currently scheduled transit date is March 25, 2019, and the currently scheduled offload date is March 27, 2019. The transport is expected to take between five and seven hours and the offload is expected to take up to five hours. Exact enforcement times will be based on tide schedules, anticipated sea conditions, and weather conditions, therefore the exact enforcement times will be announced by broadcast to mariners at least two days prior to the transit. The safety zone for the transit will include all navigable waters of the Cape Fear River from the International Regulations for Prevention of Collisions at Sea, 1972 (COLREGS, 72) Demarcation Line drawn from Oak Island Light House to Bald Head Island Abandon Light House noted on NOAA chart 11537 and proceeding north up the Cape Fear River from shore to shore to the Cape Fear Memorial Bridge, a length of approximately 26 miles. This portion of the safety zone will be enforced until the vessel transporting the crane has been safely moored at North Carolina State Port in Wilmington, North Carolina. The safety zone for the offload will include all navigable waters of the Cape Fear River within 200 yards of the transport vessel while it is moored. The duration of this zone is intended to protect persons, vessels, and the marine environment on the navigable waters of the Cape Fear River during the transport and offload of the container crane. No vessel or person will be permitted to enter the safety zone unless specifically authorized by the Captain of the Port North Carolina or a designated representative. There will be a predesignated safety vessel ahead of the transport vessel to monitor the flow of traffic and inform mariners that the container crane transit is in progress. Vessels that are less than 40 feet in height and will not impede the transport vessel may request permission to pass through the safety zone or remain in place as the transport vessel passes. The Fort Fisher and Bald Head ferries will be able to operate on their normal schedule as long as the scheduled transit will not come within one mile of the transport vessel and they receive permission from the Captain of the Port North Carolina or a designated E:\FR\FM\31JAP1.SGM 31JAP1

Agencies

[Federal Register Volume 84, Number 21 (Thursday, January 31, 2019)]
[Proposed Rules]
[Pages 614-619]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-27759]


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FEDERAL MEDIATION AND CONCILIATION SERVICE

29 CFR Part 1404

RIN 3076-AA14


Arbitration Services

AGENCY: Federal Mediation and Conciliation Service.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The Federal Mediation and Conciliation Service (FMCS) is 
proposing to revise the current arbitration regulation to clarify 
existing provisions; eliminate redundancies and provisions that are 
never used in practice; consolidate sections; update contact 
information; reduce award submission requirements and reference an 
apprenticeship alternative for joining the Roster after completion of 
specified training; implement a modest increase in user fees that have 
remained unchanged for more than 8 years, and remove section 1404.20.

DATES: Comments must be submitted to the office listed in the address 
section below on or before January 19, 2019.

ADDRESSES: Submit written comments identified by RIN 3076-AA14, by mail 
to Arthur Pearlstein, Director, Office of Arbitration Services, FMCS, 
250 E Street SW, Washington, DC 20427. Comments may be submitted by fax 
to (202) 606-8103 or electronically to apearlstein@fmcs.gov. Comments 
may also be sent by electronic mail message over the internet via the 
Federal eRulemaking Portal. See Federal eRulemaking Portal website 
(http://www.regulations.gov) for instructions on providing comments via 
the Federal Rulemaking Portal.
    All comments will be available for inspection at 250 E Street SW, 
Washington, DC 20427, Room 7113 (Reading Room) from 8:30 a.m. to 4:30 
p.m. Monday through Friday, excluding legal holidays.

FOR FURTHER INFORMATION CONTACT: Arthur Pearlstein, Director, Office of 
Arbitration Services, FMCS, 250 E Street SW, Washington, Dc 20427. 
Telephone: (202) 606-8103.

SUPPLEMENTARY INFORMATION: The enabling legislation for FMCS provides 
that ``the settlement of issues between employers and employees through 
collective bargaining may be advanced by making available full and 
adequate governmental facilities for conciliation, mediation, and 
voluntary arbitration . . .'' 29 U.S.C. 171(b). Pursuant to the statute 
and 29 CFR part 1404, FMCS has long maintained a roster of qualified, 
private labor arbitrators to hear disputes arising under collective 
bargaining agreements and provide fact finding and interest 
arbitration. The existing regulation establishes the policy and 
administrative responsibility for the FMCS Roster, criteria and 
procedures for listing and removal, procedures for using arbitration 
services, an option for expedited arbitration and, in the appendix, a 
schedule of user fees.
    FMCS is proposing to revise the current arbitration regulation to 
(1) clarify and shorten existing provisions and naming conventions and 
make other helpful style improvements; (2) eliminate redundancies and 
provisions that are never used in practice; (3) consolidate sections 
for ease of understanding and placement under appropriate headings; (4) 
update contact information and provisions regarding the use of 
technology; (5) reduce award submission requirements and reference an 
apprenticeship alternative for joining the Roster after completion of 
specified training; and (6) implement a modest increase in user fees 
that have remained unchanged for more than 8 years. The increased fees 
more accurately reflect FMCS's costs of maintaining the Roster and the 
technology to support it, as well as responding to requests for 
arbitrator panels and biographical data. The arbitrator listing fee 
increase would only apply to arbitrators on the Roster for 5 or more 
years, reflecting the greater likelihood for more experienced 
arbitrators to be selected by parties.

Section-by-Section Analysis

    1. In Sec.  1404.1, revise to make minor style improvements
    2. In Sec.  1404.3, revise (b) to eliminate ``Services'' from the 
Office title and use the abbreviated term ``Roster;'' revise (c) to 
make minor style improvements and eliminate (c)(1)(v) as unnecessary so 
that that it reads as follows:
    3. In Sec.  1404.4, revise (b) for minor style improvements, 
consolidate relevant portions of (d) and (e) to 1404.9 to place under 
the relevant heading and reduce verbiage, and revise last paragraph to 
renumber as (d) and eliminate redundant language.
    4. In Sec.  1404.5, revise preamble to update contact information 
and reflect that Director may designate someone to review Board 
recommendations; revise (b) to clarify requirements; revise (d) to make 
minor style improvements; specify in (3) that violations by arbitrators 
are not limited to late awards; clarify in (5) that information about 
arbitrator misconduct may come to the attention of FMCS in different 
ways, and remove existing (6) as extraneous and never used; renumber 
(7) as (6); and revise (f) for minor style improvements.
    5. In Sec.  1404.6, revise for minor style improvements, eliminate 
excess verbiage, and change language in (b) from ``are encouraged to'' 
to ``must'' to clarify requirement for arbitrators whose schedules do 
not permit timely hearing.
    6. In Sec.  1404.9, revise (a) to update contact information, and 
the rest of the section to incorporate consolidations from 1404.4 and 
1404.11, rearrange for clarity, and eliminate redundant language.
    7. In Sec.  1404.11, moved existing (a) to 1404.9, and otherwise 
eliminated redundant or extraneous language throughout.
    8. In Sec.  1404.12, revised with minor style changes, eliminated 
existing (b) due to redundant language, clarified ambiguous and 
confusing language in existing (c) (new (b)), consolidated existing (d) 
into new (b), and eliminated (f) for unnecessary language.
    9. In Sec.  1404.13, revise with minor style improvement and 
specify that hearings must conform to Code of Professional 
Responsibility requirements.
    10. In Sec.  1404.14, revise to make minor style improvements, 
clarify language regarding delay and scheduling, clarify time for 
submitting arbitrator report and fee statement, and change language 
regarding consent for award publication to conform with requirements of 
the Code of Professional Responsibility and industry practice.
    11. In Sec.  1404.15, revise (a) to allow arbitrators to raise fees 
with notice if a case continues for over two years after appointment, 
(b) to allow arbitrators to specify multiple business addresses, and 
(d) to clarify information on fee disputes.
    12. In Sec.  1404.16, revise (a) to update for technology changes 
and to require arbitrators to provide contact information in the event 
they become incapacitated or deceased, and (b) to eliminate excess 
verbiage.
    13. In Sec.  1404.17, revise to eliminate excess verbiage.
    14. In Sec.  1404.18, revise to make minor style improvements and 
reduce words.
    15. Remove Sec.  1404.20 as the language is unnecessary and has 
never been applied.
    16. Revise the Appendix to change fee schedules.
    This rule is not a significant regulatory action for the purposes 
of Executive Order 12866 and has not been reviewed by the Office of 
Management

[[Page 615]]

and Budget. As required by the Regulatory Flexibility Act, I certify 
that this rule will not have a significant impact on a substantial 
number of small entities. This regulation does not have any federalism 
or tribal implications.

List of Subjects in 29 CFR Part 1404

    Administrative practice and procedures, Labor management relations.

    For the reasons stated in the preamble, FMCS proposes to revise 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 removal, 
procedure for removal
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 Nomination 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
Subpart D--Expedited Arbitration
1404.17 Policy
1404.18 Procedures for requesting expedited panels
1404.19 Arbitration Process

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

    Authority:  29 U.S.C. 172 and 29 U.S.C. 173 et seq.
    Source: 62 FR 34171, June 25, 1997, unless otherwise noted.

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 (the Roster), 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 that are to be submitted to 
arbitration or fact-finding.


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 fact-finding 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. The Office of Arbitration (OA) maintains 
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 (Board) 
shall consist of a chair 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, or upon its own volition, 
review arbitration policies and procedures, including all regulations 
and written guidance regarding the use of Roster 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 to 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 
OA 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, FMCS, and the American 
Arbitration Association (``the Code'').
    (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) 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 that include consideration of 
such factors as background and experience, availability, acceptability, 
geographical location, and the expressed preferences of the parties.


Sec.  1404.5  Listing on the roster, criteria for listing and removal, 
procedure for removal.

    Persons seeking to be listed on the Roster must complete and submit 
an application available online at https://www.fmcs.gov/services/arbitration/information-joining-arbitrator-roster/. Upon receipt of an 
executed application, OA will review the application, ensure that it is 
complete, make such inquiries as are necessary, and submit the 
application to the 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, or Director's designee, 
its

[[Page 616]]

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 
therefore.
    (a) General Criteria. (1) Applicants will be listed on the Roster 
upon a determination that he or she:
    (i) Is experienced, competent, and acceptable in decision-making 
roles in the resolution of labor relations disputes; or
    (ii) Has extensive and recent experience in relevant positions in 
collective bargaining; and
    (iii) Is capable of conducting an orderly hearing, can analyze 
testimony and exhibits and can prepare clear and concise findings and 
awards within reasonable time limits.
    (iv) For applicants who are governmental employees, the following 
criteria shall also apply:
    (A) Federal Employees: These applicants must provide OA with 
written permission from their employer to work as an arbitrator. 
Federal employees will not be assigned to panels involving the Federal 
Government.
    (B) Governmental Employees other than Federal: These applicants 
must provide OA with written permission from their employer to work as 
an arbitrator as well as a statement of the jurisdiction(s) in which 
the applicant is permitted to do this work.
    (2) FMCS may identify certain positions relating to collective 
bargaining that will substitute for the General Criteria. FMCS may also 
identify periodic educational requirements for remaining on the Roster.
    (b) Proof of Qualification. Unless waived under exceptional 
circumstances wholly in the discretion of the Director, applicants 
must:
    (1) Submit five recent labor arbitration awards that are final and 
binding, and prepared by the applicant while serving as an impartial 
arbitrator of record selected by mutual agreement of the parties to 
labor relations disputes arising under collective bargaining 
agreements, or by direct designation by an administrative agency, or
    (2) Successfully complete the FMCS labor arbitrator training course 
and either submit one award as described above or complete an 
apprenticeship that meets specifications that FMCS may, in its 
discretion, provide. Applicants must also submit information 
demonstrating extensive and recent experience in collective bargaining, 
including at least the position or title held, duties or 
responsibilities, the name and location of the company or organization, 
and the dates of employment.
    (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, 1976, 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 and who did not request to be placed on inactive 
status pursuant to Sec. 1404.6 prior to becoming an advocate, 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 or employment 
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 or employment 
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.
    (2) This definition of advocate also includes a person who is 
directly or indirectly associated with an advocate in a business or 
professional relationship as, for example, partners or employees of a 
law firm. Individuals engaged only in joint education or training or 
other non-adversarial activities will not be deemed to be advocates.
    (d) Removal from the Roster shall be by decision of the Director of 
FMCS based upon the recommendations of the Board or upon the Director's 
own initiative. The Board may recommend for removal, and the Director 
may remove, any arbitrator listed on the Roster for violation of this 
part or of the Code. FMCS will provide to the affected arbitrator 
written notice of removal from the Roster. Complaints about arbitrators 
should be in writing and sent to the Director of OA. The complaint 
should cite any specific section(s) of the Code or the FMCS rule the 
arbitrator has allegedly violated. The following criteria shall be a 
basis for the Board to recommend and/or the Director to initiate an 
arbitrator's removal from the Roster:
    (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 in violation of one or more 
provisions of this Part;
    (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 a complaint by a party who uses FMCS 
services, or engages in conduct inappropriate for an arbitrator which 
otherwise comes to the attention of FMCS, and the Board, after 
appropriate inquiry, concludes that cause for removal has been shown; 
or
    (6) Has been in an inactive status pursuant to Sec.  1404.6 for 
longer than two years and has not paid the annual listing fee.
    (e) Procedure for Removal. Prior to any recommendation by the Board 
to remove an arbitrator from the Roster, the Board shall conduct an 
inquiry into the facts of any such recommended removal. When the Board 
recommends removal of an arbitrator, it shall send the arbitrator a 
written notice. This notice shall inform the arbitrator of the Board's 
recommendation and the basis for it, and that he or she has 60 days 
from the date of such notice to submit a written response or 
information showing why the arbitrator should not be removed. When the 
Director removes an arbitrator from the Roster, he or she shall inform 
the arbitrator of this in writing, stating the effective date of the 
removal and the length of time of the removal if it is not indefinite. 
An arbitrator so removed may seek reinstatement to the Roster by making 
written application to the Director no earlier than two years after the 
effective date of his or her removal.
    (f) Suspension. The Director of OA may suspend, for a period not to 
exceed 180 days, any arbitrator listed on the Roster based on any of 
the criteria in paragraph (d) of this section. Arbitrators shall be 
promptly notified of a suspension. The arbitrator may appeal a 
suspension to the 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) An arbitrator on the Roster who continues to meet the criteria 
for listing on the Roster may request that he or she

[[Page 617]]

be put in an inactive status on a temporary basis.
    (b) Arbitrators whose schedules do not permit cases to be heard 
within six months of assignment must make themselves inactive 
temporarily until their caseload permits the earlier scheduling of 
cases.
    (c) An arbitrator can remain on inactive status without paying any 
annual listing fee for a period of two years. If an arbitrator is on 
inactive status for longer than two (2) years, the arbitrator will be 
removed from the Roster unless the arbitrator pays the annual listing 
fee.


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


Sec.  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.


Sec.  1404.10  Arbitrability.

    OA 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) 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.


Sec.  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

[[Page 618]]

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.


Sec.  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 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, 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.


Sec.  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.


Sec.  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 Sec.  1404.5(c)(1).
    (b) OA reserves the right to decide and approve the format and 
content of biographical sketches.

Subpart D--Expedited Arbitration


Sec.  1404.17  Policy.

    In an effort to reduce the time and expense of some grievance 
arbitrations, FMCS offers expedited procedures where the parties agree 
on a streamlined process with short deadlines. Parties may also agree 
on their own procedures if it is practicable for FMCS.


Sec.  1404.18  Procedures for requesting expedited panels.

    (a) With the exception of the specific changes noted in this 
Subpart, all FMCS rules and regulations governing its arbitration 
services shall apply to Expedited Arbitration.
    (b) Upon receipt of a joint Request for Arbitration Panel (Form R-
43) indicating that both parties desire expedited services, OA will 
refer a panel of arbitrators which shall be valid for up to 30 days. 
Only one panel will be submitted per case. If the parties are unable to 
mutually agree upon an arbitrator or if prioritized selections are not 
received from both parties within 30 days, OA will make a direct 
appointment of an arbitrator not on the original panel.
    (c) If the parties mutually select an arbitrator, but the 
arbitrator is not available, the parties may select a second name from 
the same panel or OA will make a direct appointment of another 
arbitrator not listed on the original panel.


Sec.  1404.19  Arbitration process.

    (a) Once notified of the expedited case appointment by OA, the 
arbitrator must contact the parties within seven (7) calendar days.
    (b) The parties and the arbitrator must attempt to schedule a 
hearing within 30 days of the appointment date.
    (c) Absent mutual agreement, all hearings will be concluded within 
one day. No transcripts of the proceedings will be made and the filing 
of post-hearing briefs will not be allowed.
    (d) All awards must be completed within seven (7) working days from 
the hearing. These awards are expected to be brief and concise, and to 
not require extensive written opinion or research time.

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

    Annual listing fee for arbitrators who have completed less than 
5 years on the Roster:

[[Page 619]]

$150 for the first address; $50 for each additional address.
    Annual listing fee for arbitrators who have completed 5 or more 
years on the Roster: $250 for the first address; $100 for each 
additional address.
    Request for panel of arbitrators processed by FMCS staff: 
$70.00.
    Request for panel of arbitrators on-line: $35.00.
    Direct appointment of an arbitrator when a panel is not used: 
$30.00 per appointment.
    List and biographic sketches of arbitrators in a specific area: 
$35.00 per request plus $.25 per page.

    Dated: December 18, 2018.
Jeannette Walters-Marquez,
Attorney-Advisor.

[FR Doc. 2018-27759 Filed 1-30-19; 8:45 am]
 BILLING CODE P