[Federal Register Volume 75, Number 105 (Wednesday, June 2, 2010)]
[Rules and Regulations]
[Pages 30704-30706]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-13120]
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FEDERAL MEDIATION AND CONCILIATION SERVICE
29 CFR Part 1404
RIN 3076-AA12
Arbitration Services
AGENCY: Federal Mediation and Conciliation Service.
ACTION: Final rule.
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SUMMARY: This final rule amends the Federal Mediation and Conciliation
Service (FMCS) rules pertaining to arbitration services. It revises
rules addressing the removal of arbitrators from the FMCS roster, the
process relating to complaints about arbitrators, procedures for
requesting lists and panels, arbitrators' inactive status, the
selection by parties and appointment of arbitrators, and arbitrators'
obligation to provide FMCS with certain case information. The final
rule also provides that FMCS may decline to service any request by a
party for an arbitration list or panel based on the party's non-payment
of arbitrator fees. In addition, the final rule raises the annual
listing fee for all arbitrators on the FMCS roster. The changes will
promote more efficient and effective procedures involving arbitrator
retention and arbitration services. The increased annual listing fee
more accurately reflects FMCS's costs of maintaining and responding to
requests for arbitrators' biographical data. The final rule withdraws
the proposed revisions to Sec. 1404.9(b).
DATES: This final rule is effective July 2, 2010.
FOR FURTHER INFORMATION CONTACT: Vella M. Traynham, Director, Office of
Arbitration Services, FMCS, 2100 K Street, NW., Washington, DC 20427.
Telephone: (202) 606-5111.
SUPPLEMENTARY INFORMATION: Pursuant to 29 U.S.C. 171(b) and 29 CFR part
1404, FMCS maintains a roster of qualified labor arbitrators to hear
disputes arising under collective bargaining agreements and provide
fact finding and interest arbitration. FMCS amends its rules pertaining
to such arbitration services as follows: The revised rule relating to
the removal of arbitrators from the roster provides that FMCS will give
written notice of removal to the affected arbitrator. The revised rule
relating to complaints against arbitrators provides that complaints
should be in writing and directed to the director of the office of
arbitration services, and should cite specific sections of the
professional code or FMCS rules allegedly violated by the arbitrator.
The revised rule on arbitrators' inactive status clarifies the
applicable annual listing fee and suggests that arbitrators use
inactive status to assist them in certain scheduling circumstances. The
revised rule on procedures for requesting panels and lists provides
that FMCS may decline to service any request from a party for
arbitration lists or panels based on the party's non-payment of
arbitrator fees. The revised rule on the selection by parties and
appointment of arbitrators provides that arbitrators must provide FMCS
with certain information upon being selected by a party. The revised
rules describe the methods of arbitrator selection that FMCS will
accept, where the parties' collective agreement is silent on the manner
of selection. These changes are intended to make FMCS's arbitration
procedures more efficient and effective.
FMCS also amends Appendix to Part 1404 to increase the annual
listing fee from $100 to $150 for all arbitrators on the FMCS roster.
With increasing frequency, parties have been requesting that FMCS
furnish arbitration panels that are individualized to the dispute at
issue. This requires detailed research and review of arbitrators'
biographies. The increased listing fee reflects the cost in staff time
necessary to be responsive to these requests as well as the costs
associated with updating arbitrator biographies.
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 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.
Background: On August 6, 2008, FMCS published a Notice of Proposed
[[Page 30705]]
Rulemaking (NPRM) proposing changes to its rules relating to the
removal of arbitrators from the FMCS roster, the process relating to
complaints about arbitrators, procedures for requesting arbitrator
lists and panels, arbitrators' inactive status, the selection by
parties and appointment of arbitrators, and arbitrators' obligation to
provide FMCS with certain case information. The proposed rules also
addressed FMCS's response to requests for arbitration lists or panels
made by one party, where the collective bargaining agreement requires
that the request be jointly submitted. In addition, the proposed rules
addressed FMCS's option to decline to service any request from a party,
based on the party's non-payment of arbitrator fees, and raised the
annual listing fee for arbitrators on the FMCS roster.
FMCS is adopting the final rule with one change from that which was
proposed. The final rule withdraws the proposed revisions to Sec.
1404.9(b), which had modified FMCS's response to requests for
arbitration lists or panels made by one party, where the collective
bargaining agreement requires that the request be jointly submitted.
Discussion of Comments: FMCS received comments from two sources in
response to the NPRM. One commentator suggested that the proposed
changes to Sec. 1404.9(b) insert FMCS into the arena of administering
and interpreting collective bargaining agreements, and do not take into
account the parties' past practices. FMCS has given careful review and
consideration to the comment and the language in the proposed revision
to Sec. 1404.9(b) and has determined it will withdraw the revision to
Sec. 1404.9(b).
FMCS received comments from two sources regarding the proposed
changes to Sec. 1404.9(d). One commentator opposed the revision to the
extent that it could allow a single failure to pay an arbitrator's fees
to disqualify a party from obtaining a panel. Another commentator
objected to the revision because the proposed rule does not
differentiate between a genuine fee dispute and simple nonpayment. FMCS
has given careful review and consideration to the comments. FMCS has
determined, however, that the proposed rule, by stating only that
FMCS's office of arbitration services may decline to service any
request from a party based on the party's non-payment of fees, will
ensure that decisions whether to decline services will be considered.
Accordingly, no changes are made to the final rule.
List of Subjects in 29 CFR Part 1404
Administrative practice and procedure, Labor management relations.
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For the reasons stated in the preamble, FMCS amends 29 CFR Part 1404 as
follows:
PART 1404--ARBITRATION SERVICES
0
1. The authority citation for part 1404 continues to read as follows:
Authority: 29 U.S.C. 172 and 29 U.S.C. 173 et seq.
0
2. Amend Sec. 1404.5 by revising paragraph (d) introductory text to
read as follows:
Sec. 1404.5 Listing on the roster; criteria for listing and
retention.
* * * * *
(d) Listing on roster, removal. Listing on 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 person listed on the
Roster for violation of this Part or of the Code of Professional
Responsibility. 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 OAS. The complaint should
cite the specific section 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 a member's removal
from the Roster:
* * * * *
0
3. Revise Sec. 1404.6 to read as follows:
Sec. 1404.6 Inactive status.
(a) A member of the Roster who continues to meet the criteria for
listing on the Roster may request that he or she be put in an inactive
status on a temporary basis because of ill heath, vacation, schedule or
other reasons.
(b) Arbitrators whose schedules do not permit cases to be heard
within six months of assignment are encouraged to 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 (2) years. If an arbitrator is
on inactive status for longer than two (2) years, the arbitrator will
be removed from the Roster unless he or she pays the annual listing
fee.
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4. Amend Sec. 1404.9 by revising paragraph (d) to read as follows:
Sec. 1404.9 Procedures for requesting arbitration lists and panels.
* * * * *
(d) The OAS reserves the right to decline to submit a panel or to
make an appointment of an arbitrator if the request submitted is overly
burdensome or otherwise impracticable. The OAS, in such circumstances,
may refer the parties to an FMCS mediator to help in the design of an
alternative solution. The OAS may also decline to service any request
from a party based on the party's non-payment of arbitrator fees or
other behavior that constrains the spirit or operation of the
arbitration process.
* * * * *
0
5. Revise Sec. 1404.12 to read as follows:
Sec. 1404.12 Selection by parties and appointment of arbitrators.
(a) After receiving a panel of names, the parties must notify the
OAS of their selection of an arbitrator or of the decision not to
proceed with arbitration. Upon notification of the selection of an
arbitrator, the OAS will make a formal appointment of the arbitrator.
The arbitrator, upon notification of appointment, 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 the OAS of the selection and of his or
her willingness to serve. The arbitrator must provide the OAS with the
FMCS case number and other pertinent information for the OAS 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 the OAS. Consistent failure to
follow these procedures may lead to a denial of future OAS services.
(b) If the parties request a list of names and biographical
sketches rather than a panel, the parties may choose to contact and
select an arbitrator directly from that list. In this situation,
neither the parties nor the arbitrator is required to furnish any
additional information to FMCS and no case number will be assigned.
(c) Where the parties' collective bargaining agreement is silent on
the manner of selecting arbitrators, FMCS will accept one of the
following methods for selection from a panel:
(1) A selection by mutual agreement;
(2) A selection in which each party alternately strikes a name from
the submitted panel until one remains;
[[Page 30706]]
(3) A selection in which each party advises OAS of its order of
preference by numbering each name on the panel and submitting the
numbered list in writing to OAS. If the parties separately notify OAS
of their preferred selections, OAS, upon receiving the preferred
selection of the first party, 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.
(d) Where the parties' collective bargaining agreement permits each
party to separately notify OAS of its preferred selection, OAS will
proceed with the selection process as follows. When the OAS receives
the preferred selection from one party, it will notify the other party
that it has fourteen (14) days in which to submit its selections. If
that party fails to respond within the deadline, the first party's
choice will be honored unless prohibited by the collective bargaining
agreement. Where both parties respond, the name that has the lowest
combined number will be appointed. If, within fourteen (14) days, a
second panel is requested, and is permitted by the collective
bargaining agreement, the requesting party must pay a fee for the
second panel.
(e) The OAS will make a direct appointment of an arbitrator only
upon joint request or as provided by paragraphs (c) (3) or (d) of this
section.
(f) A direct appointment in no way signifies a determination of
arbitrability or a ruling that an agreement to arbitrate exists. The
resolution of disputes over these issues rests solely with the parties.
0
6. Amend the Appendix to 29 CFR Part 1404 by removing ``$100'' and
adding ``$150'' in its place.
Dated: May 26, 2010.
Jeannette Walters-Marquez,
Attorney Advisor.
[FR Doc. 2010-13120 Filed 6-1-10; 8:45 am]
BILLING CODE 6732-01-P