PART 1404—ARBITRATION SERVICES Authority: 29 U.S.C. 172 and 29 U.S.C. 173 et seq. Source: 84 FR 16206, Apr. 18, 2019, unless otherwise noted. Subpart A—Arbitration Policy; Administration of Roster § 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. § 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 Administrative responsibilities. (a) Director. (b) Office of Arbitration. (c) Arbitrator Review Board. (1) Duties of the Board. (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] Subpart B—Roster of Arbitrators; Admission and Retention § 1404.4 Roster and status of members. (a) The Roster. (b) Adherence to standards and requirements. (c) Status of arbitrators. (d) Rights of persons listed on the Roster. § 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/. (a) General criteria. (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. (B) Governmental employees other than Federal. (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. (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. (1) Definition of advocacy. (ii) 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. (2) [Reserved] (d) 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. (f) Suspension. § 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 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. § 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/, [email protected]. (b)(1) 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. (2) A request for a panel may be joint or unilateral unless this part, applicable law, or the parties' agreement requires joint authorization for the requested service. Requests for a panel of other than seven names, for direct appointment of an arbitrator, or for special qualifications or other special service will not be honored unless jointly submitted or authorized by both parties pursuant to mutual agreement. (3) OA may conduct a limited threshold inquiry to determine whether issuing a panel, making a direct appointment, or providing related arbitration services would be inconsistent with applicable law, a court order, or FMCS's statutory or regulatory authority. OA may request from the parties the agreement, statutory provision, regulation, court order, written authorization, or other information necessary to determine whether OA may provide the requested service. Following such inquiry, FMCS may issue the panel or appointment, decline to provide the requested service, hold the request in abeyance, or take other administratively appropriate action. (4) OA's issuance of a panel or appointment, refusal to issue a panel or appointment, or decision to hold a request in abeyance does not constitute a decision on the validity of any collective-bargaining agreement, the merits of any grievance, the arbitrability of any dispute, or the rights or obligations of the parties under any agreement or law. (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. [84 FR 16206, Apr. 18, 2019, as amended at 91 FR 49277, Aug. 4, 2026; 91 FR 55477, Aug. 28, 2026] § 1404.10 Arbitrability. OA will not decide the merits of a claim by either party that a dispute is not subject to arbitration. OA may, however, conduct a limited threshold inquiry to determine whether FMCS may lawfully submit a panel, make a direct appointment, or provide related arbitration services under this part, consistent with § 1404.9. [91 FR 55477, Aug. 28, 2026] § 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) Subject to §§ 1404.9 and 1404.10, 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, sex, national origin, disability, genetic information, religion, or any other basis prohibited by applicable law. (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, statute, regulation, court order, or other binding authority, and payment of additional fees. This paragraph is subject to §§ 1404.9 and 1404.10. OA may decline to furnish an additional panel, or may hold the request in abeyance, if OA determines under § 1404.9(b) that furnishing the additional panel would be inconsistent with applicable law, a court order, or FMCS's statutory or regulatory authority. [84 FR 16206, Apr. 18, 2019, as amended at 91 FR 49277, Aug. 4, 2026; 91 FR 55477, Aug. 28, 2026] § 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 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. This paragraph is subject to § 1404.9(b) and does not require OA to make an appointment where OA determines that the appointment would be inconsistent with applicable law, a court order, or FMCS's statutory or regulatory authority. (c) Subject to §§ 1404.9 and 1404.10, OA will make a direct appointment of an arbitrator only upon joint request or as otherwise provided by this part. [84 FR 16206, Apr. 18, 2019, as amended at 91 FR 49278, Aug. 4, 2026; 91 FR 55477, Aug. 28, 2026] § 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. § 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. § 1404.15 Fees and charges of arbitrators. (a) Fees to parties. (b) Two or more addresses. (c) Additional administrative fee. (d) Fee disputes. § 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 § 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 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.