[Code of Federal Regulations]
[Title 29, Volume 4]
[Revised as of July 1, 2006]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR1404.5]

[Page 49-50]
 
                             TITLE 29--LABOR
 
         CHAPTER XII--FEDERAL MEDIATION 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 removal, 
procedure for removal.

    Persons seeking to be listed on the Roster must complete and submit 
an application form that 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 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 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 the OAS 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 the OAS 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. The qualifications listed in paragraph 
(a) of this section are preferably demonstrated by the submission of 
five recent arbitration awards prepared by the applicant while serving 
as an impartial arbitrator of record chosen by the parties to labor 
relations disputes arising under collective bargaining agreements, or 
the successful completion of the FMCS labor arbitrator training course 
plus two awards as described above, and the submission of 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,

[[Page 50]]

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 as advocates.
    (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 and/or the Code. The reasons for removal 
include whenever a member of 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 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 a complaint by parties who use FMCS 
services and the Board, after appropriate inquiry, concludes that cause 
for removal has been shown;
    (6) Is determined to be unacceptable to the parties who use FMCS 
arbitration services. Such a determination of unacceptability may be 
based on FMCS records which show the number of times the arbitrator's 
name has been proposed to the parties and the number of times he or she 
has been selected. Such cases will be reviewed for extenuating 
circumstances, such as length of time on the Roster or prior history;
    (7) 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 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. 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.

[62 FR 34171, June 25, 1997, as amended at 70 FR 76397, Dec. 27, 2005]