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FMCS - Federal Mediation and Conciliation Service 
Notice of proposed rulemaking 

[Federal Register: August 6, 2008 (Volume 73, Number 152)]
[Proposed Rules]               
[Page 45660-45662]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



29 CFR Part 1404

RIN 3076-AA12

Arbitration Services

AGENCY: Federal Mediation and Conciliation Service.

ACTION: Notice of proposed rulemaking.


SUMMARY: The Federal Mediation and Conciliation Service (FMCS) proposes 
to amend its rules relating to arbitrators' inactive status, removal, 
appointment, referral and obligation to provide FMCS with information. 
The proposed rules also address the appointment of arbitrators where a 
party has failed to pay fees in previous cases. In addition, the 
proposed rules raise the annual listing fee for arbitrators on the FMCS 
Roster. The changes will promote more efficient and effective 
procedures involving arbitrator retention and arbitration services. The 
increased cost of listing arbitrator biographical data more accurately 
reflects FMCS' costs of maintaining and administering this information.

DATES: Comments must be submitted to the office listed in the address 
section below on or before October 6, 2008.

ADDRESSES: Submit written comments, identified by RIN number, by mail 
to Vella M. Traynham, Director, Office of Arbitration Services, FMCS, 
2100 K Street, NW., Washington, DC 20427. Comments may be submitted by 
fax to (202) 606-3749. Comments may also be submitted electronically to 
vtraynham@fmcs.gov. All comments will be available for inspection in 
Room 704 at the Washington, DC address above from 8:30 a.m. to 4:30 
p.m. Monday through Friday, excluding legal holidays.

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 from collective bargaining agreements and to provide 
fact finding and interest arbitration. FMCS proposes to amend its rules 
pertaining to arbitration services by revising: the arbitrator 
complaint process; circumstances applicable to inactive arbitrator 
status; procedures for the request of arbitration panels; the 
obligation of arbitrators to provide FMCS with designated information; 

[[Page 45661]]

methods for selecting an arbitrator panel. These changes are intended 
to make FMCS arbitration procedures more efficient and effective.
    FMCS also proposes in the Appendix to Part 1404 to increase the 
listing fee for an arbitrator's first business address from $100 to 
$150. Increasingly, parties are requesting more individualized panels 
based on their requirements and arbitrator experience. The increased 
listing fee reflects the additional FMCS staff time and effort 
necessary to be responsive to these requests as well as that 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.

List of Subjects in 29 CFR Part 1404

    Administrative practice and procedure, Labor management relations.

    For the reasons stated in the preamble, FMCS proposes to amend 29 
CFR part 1404 as follows:


    1. The authority citation for part 1404 continues to read as 

    Authority: 29 U.S.C. 172 and 29 U.S.C. 173 et seq.

    2. In Sec.  1404.5, revise paragraph (d) to read as follows:

Sec.  1404.5  Listing on the roster; criteria for listing and 

* * * * *
    (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:
* * * * *
    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 health, 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 
    4. Amend Sec.  1404.9 by revising paragraphs (b) and (d) to read as 

Sec.  1404.9  Procedures for requesting arbitration lists and panels.

* * * * *
    (b) The OAS will refer a panel of arbitrators to the parties upon 
request. The parties are encouraged to make joint requests. FMCS will 
abide by language in the parties' collective bargaining agreement 
specifying the conditions under which a panel of arbitrators will be 
referred. If the parties' collective bargaining agreement requires that 
the request for a panel of arbitrators be jointly submitted, FMCS will 
not proceed with an arbitrator selection if one party communicates to 
FMCS that it does not concur in the request. In the event, however, 
that the request is made by only one party without objection, the OAS 
will submit a panel of arbitrators. The issuance of a panel--pursuant 
to either a joint or a unilateral request--is nothing more than a 
response to a request. It does not signify the adoption of any position 
by the FMCS regarding the arbitrability of any dispute or a ruling that 
an agreement to arbitrate exists.
* * * * *
    (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.
* * * * *
    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;
    (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

[[Page 45662]]

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 
    (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.
    6. Amend the Appendix to 29 CFR Part 1404 by removing ``$100'' and 
adding ``$150'' in its place.

Michael J. Bartlett,
Deputy General Counsel.
[FR Doc. E8-17674 Filed 8-5-08; 8:45 am]


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