[Code of Federal Regulations]
[Title 29, Volume 4]
[Revised as of July 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR1404.5]

[Page 49-50]
 
                             TITLE 29--LABOR
 
                        AND CONCILIATION SERVICE
 
PART 1404_ARBITRATION SERVICES--Table of Contents
 
        Subpart B_Roster of Arbitrators; Admission and Retention
 
Sec. 1404.5  Listing on the roster; criteria for listing and retention.

    Persons seeking to be listed on the Roster must complete and submit 
an application form which may be obtained from OAS. Upon receipt of an 
executed application, OAS will review the application, assure that it is 
complete, make such inquiries as are necessary, and submit the 
application to the Arbitrator Review Board. The Board will review the 
completed application under the criteria in paragraphs (a), (b), and (c) 
of this section, and will forward to the FMCS Director its 
recommendation as to whether or not the applicant meets the criteria for 
listing on the Roster. The Director shall make all final decisions as to 
whether an applicant may be listed on the Roster. Each applicant shall 
be notified in writing of the Director's decision and the reasons 
therefor.
    (a) General criteria. Applicants for the Roster will be listed on 
the Roster upon a determination that they are experienced, competent, 
and acceptable in decision-making roles in the resolution of labor 
relations disputes.
    (b) Proof of qualification. Qualifications for listing on the Roster 
may be demonstrated by submission of five (5) arbitration awards 
prepared by the applicant while serving as an impartial arbitrator of 
record chosen by the parties to labor disputes arising under collective 
bargaining agreements. The Board will consider experience in relevant 
positions in collective bargaining or as a judge or hearing examiner in 
labor relations controversies as a substitute for such awards.
    (c) Advocacy. Any person who at the time of application is an 
advocate as defined in paragraph (c)(1) of this section, must agree to 
cease such activity before being recommended for listing on the Roster 
by the Board. Except in the case of persons listed on the Roster as 
advocates before November 17, 1996, any person who did not divulge his 
or her advocacy at the time of listing or who becomes an advocate while 
listed on the Roster, shall be recommended for removal by the Board 
after the fact of advocacy is revealed.
    (1) Definition of advocacy. An advocate is a person who represents 
employers, labor organizations, or individuals as an employee, attorney, 
or consultant, in matters of labor relations, including but not limited 
to the subjects of union representation and recognition matters, 
collective bargaining, arbitration, unfair labor practices, equal 
employment opportunity, and other areas generally recognized as 
constituting labor relations. The definition includes representatives of 
employers or employees in individual cases or controversies involving 
worker's compensation, occupational health or safety, minimum wage, or 
other labor standards matters. This definition of advocate also includes 
a person who is directly associated with an advocate in a business or 
professional relationship, as for example, partners or employees of a 
law firm. Consultants engage only in joint education or training or 
other non-adversarial activities will not be deemed as advocates.
    (2) [Reserved]
    (d) Duration of listing, retention. Listing on the Roster shall be 
by decision of the Director of FMCS based upon the recommendations of 
the Arbitrator Review Board. The Board may recommend, and the Director 
may remove, any person listed on the Roster, for violation of this part 
and/or the Code of Professional Responsibility. Notice of cancellation 
or suspension shall be given to a person listed on the Roster whenever a 
Roster member:
    (1) No longer meets the criteria for admission;
    (2) Has become an advocate as defined in paragraph (c) of this 
section;
    (3) Has been repeatedly or flagrantly delinquent in submitting 
awards;
    (4) Has refused to make reasonable and periodic reports in a timely 
manner to FMCS, as required in subpart C of this part, concerning 
activities pertaining to arbitration;
    (5) Has been the subject of complaints by parties who use FMCS 
services, and the Board after appropriate inquiry, concludes that just 
cause for cancellation has been shown;
    (6) Is determined by the Director to be unacceptable to the parties 
who use FMCS arbitration services; the Director may base a determination 
of unacceptability on FMCS records which show the number of times the 
arbitrator's name has been proposed to

[[Page 50]]

the parties and the number of times it has been selected. Such cases 
will be reviewed for extenuating circumstances, such as length of time 
on the Roster or prior history.
    (e) The Board may, at its discretion, conduct an inquiry into the 
facts of any proposed removal from the Roster. An arbitrator listed on 
the Roster may only be removed after 60-day notice and an opportunity to 
submit a response or information showing why the listing should not be 
canceled. The Board may recommend to the Director whether to remove an 
arbitrator from the Roster. All determinations to remove an arbitrator 
from the Roster shall be made by the Director. Removals may be for a 
period of up to two (2) years, after which the arbitrator may seek 
reinstatement.
    (f) The Director of OAS may suspend for a period not to exceed 180 
days any person listed on the Roster who has violated any of the 
criteria in paragraph (d) of this section. Arbitrators shall be promptly 
notified of a suspension. They may appeal a suspension to the Arbitrator 
Review Board, which shall make a recommendation to the Director of FMCS. 
The decision of the Director of FMCS shall constitute the final action 
of the agency.