[Title 29 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2011 Edition]
[From the U.S. Government Printing Office]
[[Page 1]]
Title 29
Labor
________________________
Parts 900 to 1899
Revised as of July 1, 2011
Containing a codification of documents of general
applicability and future effect
As of July 1, 2011
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
[[Page ii]]
U.S. GOVERNMENT OFFICIAL EDITION NOTICE
Legal Status and Use of Seals and Logos
The seal of the National Archives and Records Administration
(NARA) authenticates the Code of Federal Regulations (CFR) as
the official codification of Federal regulations established
under the Federal Register Act. Under the provisions of 44
U.S.C. 1507, the contents of the CFR, a special edition of the
Federal Register, shall be judicially noticed. The CFR is
prima facie evidence of the original documents published in
the Federal Register (44 U.S.C. 1510).
It is prohibited to use NARA's official seal and the stylized Code
of Federal Regulations logo on any republication of this
material without the express, written permission of the
Archivist of the United States or the Archivist's designee.
Any person using NARA's official seals and logos in a manner
inconsistent with the provisions of 36 CFR part 1200 is
subject to the penalties specified in 18 U.S.C. 506, 701, and
1017.
Use of ISBN Prefix
This is the Official U.S. Government edition of this publication
and is herein identified to certify its authenticity. Use of
the 0-16 ISBN prefix is for U.S. Government Printing Office
Official Editions only. The Superintendent of Documents of the
U.S. Government Printing Office requests that any reprinted
edition clearly be labeled as a copy of the authentic work
with a new ISBN.
U . S . G O V E R N M E N T P R I N T I N G O F F I C E
------------------------------------------------------------------
U.S. Superintendent of Documents Washington, DC
20402-0001
http://bookstore.gpo.gov
Phone: toll-free (866) 512-1800; DC area (202) 512-1800
[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 29:
SUBTITLE B--Regulations Relating to Labor (Continued)
Chapter IX--Construction Industry Collective
Bargaining Commission 5
Chapter X--National Mediation Board 9
Chapter XII--Federal Mediation and Conciliation
Service 31
Chapter XIV--Equal Employment Opportunity Commission 149
Finding Aids:
Table of CFR Titles and Chapters........................ 455
Alphabetical List of Agencies Appearing in the CFR...... 475
List of CFR Sections Affected........................... 485
[[Page iv]]
----------------------------
Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 29 CFR 901.1 refers
to title 29, part 901,
section 1.
----------------------------
[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
issues of the Federal Register. These two publications must be used
together to determine the latest version of any given rule.
To determine whether a Code volume has been amended since its
revision date (in this case, July 1, 2011), consult the ``List of CFR
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative
List of Parts Affected,'' which appears in the Reader Aids section of
the daily Federal Register. These two lists will identify the Federal
Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
citations for the regulations are referred to by volume number and page
number of the Federal Register and date of publication. Publication
dates and effective dates are usually not the same and care must be
exercised by the user in determining the actual effective date. In
instances where the effective date is beyond the cut-off date for the
Code a note has been inserted to reflect the future effective date. In
those instances where a regulation published in the Federal Register
states a date certain for expiration, an appropriate note will be
inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
placed as close as possible to the applicable recordkeeping or reporting
requirements.
OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
the cover of each volume are not carried. Code users may find the text
of provisions in effect on a given date in the past by using the
appropriate numerical list of sections affected. For the period before
April 1, 2001, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, 1973-1985, or 1986-2000, published in eleven separate
volumes. For the period beginning April 1, 2001, a ``List of CFR
Sections Affected'' is published at the end of each CFR volume.
``[RESERVED]'' TERMINOLOGY
The term ``[Reserved]'' is used as a place holder within the Code of
Federal Regulations. An agency may add regulatory information at a
``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used
editorially to indicate that a portion of the CFR was left vacant and
not accidentally dropped due to a printing or computer error.
INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
established by statute and allows Federal agencies to meet the
requirement to publish regulations in the Federal Register by referring
to materials already published elsewhere. For an incorporation to be
valid, the Director of the Federal Register must approve it. The legal
effect of incorporation by reference is that the material is treated as
if it were published in full in the Federal Register (5 U.S.C. 552(a)).
This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed as
an approved incorporation by reference, please contact the agency that
issued the regulation containing that incorporation. If, after
contacting the agency, you find the material is not available, please
notify the Director of the Federal Register, National Archives and
Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001,
or call 202-741-6010.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Authorities
and Rules. A list of CFR titles, chapters, subchapters, and parts and an
alphabetical list of agencies publishing in the CFR are also included in
this volume.
An index to the text of ``Title 3--The President'' is carried within
that volume.
[[Page vii]]
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ``Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
INQUIRIES
For a legal interpretation or explanation of any regulation in this
volume, contact the issuing agency. The issuing agency's name appears at
the top of odd-numbered pages.
For inquiries concerning CFR reference assistance, call 202-741-6000
or write to the Director, Office of the Federal Register, National
Archives and Records Administration, 8601 Adelphi Road, College Park, MD
20740-6001 or e-mail [email protected].
SALES
The Government Printing Office (GPO) processes all sales and
distribution of the CFR. For payment by credit card, call toll-free,
866-512-1800, or DC area, 202-512-1800, M-F 8 a.m. to 4 p.m. e.s.t. or
fax your order to 202-512-2104, 24 hours a day. For payment by check,
write to: US Government Printing Office - New Orders, P.O. Box 979050,
St. Louis, MO 63197-9000.
ELECTRONIC SERVICES
The full text of the Code of Federal Regulations, the LSA (List of
CFR Sections Affected), The United States Government Manual, the Federal
Register, Public Laws, Public Papers of the Presidents of the United
States, Compilation of Presidential Documents and the Privacy Act
Compilation are available in electronic format via www.ofr.gov. For more
information, contact the GPO Customer Contact Center, U.S. Government
Printing Office. Phone 202-512-1800, or 866-512-1800 (toll-free). E-
mail, [email protected].
The Office of the Federal Register also offers a free service on the
National Archives and Records Administration's (NARA) World Wide Web
site for public law numbers, Federal Register finding aids, and related
information. Connect to NARA's web site at www.archives.gov/federal-
register.
Raymond A. Mosley,
Director,
Office of the Federal Register.
July 1, 2011.
[[Page ix]]
THIS TITLE
Title 29--Labor is composed of nine volumes. The parts in these
volumes are arranged in the following order: Parts 0-99, parts 100-499,
parts 500-899, parts 900-1899, part 1900-Sec. 1910.999, part 1910.1000-
end of part 1910, parts 1911-1925, part 1926, and part 1927 to end. The
contents of these volumes represent all current regulations codified
under this title as of July 1, 2011.
The OMB control numbers for title 29 CFR part 1910 appear in Sec.
1910.8. For the convenience of the user, Sec. 1910.8 appears in the
Finding Aids section of the volume containing Sec. 1910.1000 to the
end.
Subject indexes appear following the occupational safety and health
standards (part 1910), and following the safety and health regulations
for: Longshoring (part 1918), Gear Certification (part 1919), and
Construction (part 1926).
For this volume, Jonn V. Lilyea was Chief Editor. The Code of
Federal Regulations publication program is under the direction of
Michael L. White, assisted by Ann Worley.
[[Page 1]]
TITLE 29--LABOR
(This volume contains parts 900 to 1899)
--------------------------------------------------------------------
SUBTITLE B--Regulations Relating to Labor (Continued)
Part
chapter ix--Construction Industry Collective Bargaining
Commission................................................ 901
chapter x--National Mediation Board......................... 1200
chapter xii--Federal Mediation and Conciliation Service..... 1400
chapter xiv--Equal Employment Opportunity Commission........ 1600
[[Page 3]]
Subtitle B--Regulations Relating to Labor (Continued)
[[Page 5]]
CHAPTER IX--CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING COMMISSION
--------------------------------------------------------------------
Part Page
900
[Reserved]
901 Policy statement on collective bargaining
disputes and applicable procedures...... 7
[[Page 7]]
PART 900 [RESERVED]
PART 901_POLICY STATEMENT ON COLLECTIVE BARGAINING DISPUTES AND
APPLICABLE PROCEDURES--Table of Contents
Sec.
901.1 Scope and application.
901.2 Policy of Commission.
901.3 Participation by Commission.
901.4 Handling of disputes by Commission.
901.5 Agreement to refrain from strike or lockout.
901.6 Authority of Executive Director.
901.7 Inquiries and correspondence with Commission.
Authority: E.O. 11482; 3 CFR, 1969 Comp., p. 139.
Source: 35 FR 4752, Mar. 19, 1970, unless otherwise noted.
Sec. 901.1 Scope and application.
The Construction Industry Collective Bargaining Commission hereby
states its policy and sets forth procedures for handling disputes
involving the standard labor and management organizations in the
building and construction industry. These procedures are pursuant to the
authority set forth in Executive Order 11482, dated September 22, 1969.
Section 6 of the order states that, ``The Commission is authorized to
issue such rules and regulations, and to adopt such procedures governing
its affairs, including the conduct of its disputes settlement functions,
as shall be necesssary and appropriate to effectuate the objectives of
this order.''
Sec. 901.2 Policy of Commission.
Section 3(c) of the Executive order provides that it is an objective
of the Commission ``to establish more effective machinery for the
resolution of disputes over the terms of collective bargaining
agreements which at the same time recognizes the interests of each
branch of the industry and preserves existing procedures that have been
effective.'' Accordingly, it is the policy of the Commission:
(a) To encourage each branch of the industry without such a
procedure to establish its own procedures to facilitate the settlement
of disputes over the terms and application of collective bargaining
agreements.
(b) To encourage each branch of the industry having such a
procedure, but which procedure is limited in application, to expand the
application of such procedure.
(c) To encourage parties in each branch of construction with a
procedure to utilize that machinery in all possible cases.
(d) To encourage the Federal Mediation and Conciliation Service to
refer disputes wherever possible to such machinery established in
various branches of the industry.
Sec. 901.3 Participation by Commission.
(a) The Commission will consider participation in specific disputes
which conform with the following criteria:
(1) The disputes will have a significant impact on construction
activity in the area involved.
(2) The dispute concerns negotiations for a new or expiring
agreement, or a question of interpretation or application of an existing
agreement, where all other internal methods of resolution have been
exhausted.
(b) The Commission will normally refrain from participating in
specific disputes where;
(1) The dispute involved concerns jurisdiction of work.
(2) The parties have failed to utilize an independent disputes
handling procedure presently in existence or subsequently established.
(A number of such procedures exists currently in several branches of the
industry.)
(3) The parties have not fully utilized the service of the Federal
Mediation and Conciliation Service.
(c) In setting forth a disputes procedure the Commission emphasizes
that it is not intended to provide a substitute for the collective
bargaining process. Nor is it a means to bypass or neglect existing
mediation facilities or industry branch dispute settling procedures. The
standard procedure for the Commission to accept cognizance over a
collective bargaining dispute is through referral to the Commission by
the Director of the Federal Mediation and Conciliation Service. The
Commission will exercise its judgment in accepting or declining specific
disputes. The staff of the Commission is directed to maintain close
contact with the
[[Page 8]]
Federal Mediation and Conciliation Service on all aspects of bargaining
in the construction industry and to see that critical disputes are
brought to the attention of the appropriate International Union and the
national offices of an appropriate contractor association.
Sec. 901.4 Handling of disputes by Commission.
The Commission will determine the particular method of dispute
handling appropriate for each dispute. Section 5(a) of the Executive
order states,
The Commission or a panel designated by the Commission may, with the
assistance of national labor organizations and national contractor
associations where appropriate, seek to mediate such dispute, or make an
investigation of the facts of the dispute and make such recommendations
to the parties for the resolution thereof as it determines appropriate.
Sec. 901.5 Agreement to refrain from strike or lockout.
As part of its conditions for entering the dispute, the Commission
may request the parties to continue the terms or conditions of
employment without the occurrence of a strike or lockout for a 30-day
period, as set forth in section 5(a) of the Executive Order, to enhance
the functions of mediation and other related activities.
Sec. 901.6 Authority of Executive Director.
The Commission delegates authority to the Executive Director to
accept or reject requests for Commission involvement in those instances
where a Commission meeting would not occur in sufficient time prior to a
contract expiration date to permit such involvement.
Sec. 901.7 Inquiries and correspondence with Commission.
Inquiries to the Commission about the status of disputes or other
matters should be directed as follows:
Executive Director, Construction Industry Collective Bargaining
Commission, room 5220, Department of Labor Building, 14th and
Constitution Avenue NW., Washington, DC 20210. Telephone: (202) 961-
3736.
[[Page 9]]
CHAPTER X--NATIONAL MEDIATION BOARD
--------------------------------------------------------------------
Part Page
1201 Definitions................................. 11
1202 Rules of procedure.......................... 11
1203 Applications for service.................... 14
1204 Labor contracts............................. 15
1205 Notices in re: Railway Labor Act............ 16
1206 Handling representation disputes under the
Railway Labor Act....................... 16
1207 Establishment of special adjustment boards.. 18
1208 Availability of information................. 20
1209 Public observation of National Mediation
Board meetings.......................... 26
Abbreviation Used in This Chapter:
NMB = National Mediation Board.
[[Page 11]]
PART 1201_DEFINITIONS--Table of Contents
Sec.
1201.1 Carrier.
1201.2 Exceptions.
1201.3 Determination as to electric lines.
1201.4 Employee.
1201.5 Exceptions.
1201.6 Representatives.
Authority: 44 Stat. 577, as amended; 45 U.S.C. 151-163.
Source: 11 FR 177A-922, Sept. 11, 1946, unless otherwise noted.
Redesignated at 13 FR 8740, Dec. 30, 1948.
Sec. 1201.1 Carrier.
The term carrier includes any express company, sleeping car company,
carrier by railroad, subject to the Interstate Commerce Act (24 Stat.
379, as amended; 49 U.S.C. 1 et seq.), and any company which is directly
or indirectly owned or controlled by or under common control with any
carrier by railroad and which operates any equipment or facilities or
performs any service (other than trucking service) in connection with
the transportation, receipt, delivery, elevation, transfer in transit,
refrigeration or icing, storage, and handling of property transported by
railroad, and any receiver, trustee, or other individual or body,
judicial or otherwise, when in the possession of the business of any
such ``carrier.''
Sec. 1201.2 Exceptions.
(a) The term ``carrier'' shall not include any street, interurban,
or suburban electric railway, unless such railway is operating as a part
of a general steam-railroad system of transportation, but shall not
exclude any part of the general steam-railroad system of transportation
now or hereafter operated by any other motive power.
(b) The term ``carrier'' shall not include any company by reason of
its being engaged in the mining of coal, the supplying of coal to
carrier where delivery is not beyond the tipple, and the operation of
equipment or facilities therefor or any of such activities.
Sec. 1201.3 Determination as to electric lines.
The Interstate Commerce Commission is hereby authorized and directed
upon request of the Mediation Board or upon complaint of any part
interested to determine after hearing whether any line operated by
electric power falls within the terms of this part.
Sec. 1201.4 Employee.
The term employee as used in this part includes every person in the
service of a carrier (subject to its continuing authority to supervise
and direct the manner of rendition of his service) who performs any work
defined as that of an employee or subordinate official in the orders of
the Interstate Commerce Commission now in effect, and as the same may be
amended or interpreted by orders hereafter entered by the Commission
pursuant to the authority which is hereby conferred upon it to enter
orders amending or interpreting such existing orders: Provided, however,
That no occupational classification made by order of the Interstate
Commerce Commission shall be construed to define the crafts according to
which railway employees may be organized by their voluntary action, nor
shall the jurisdiction or powers of such employee organizations be
regarded as in any way limited or defined by the provisions of this Act
or by the orders of the Commission.
Sec. 1201.5 Exceptions.
The term ``employee'' shall not include any individual while such
individual is engaged in the physical operations consisting of the
mining of coal, the preparation of coal, the handling (other than
movement by rail with standard locomotives) of coal not beyond the mine
tipple, or the loading of coal at the tipple.
Sec. 1201.6 Representatives.
The term representative means any person or persons, labor union,
organization, or corporation designated either by a carrier or group of
carriers or by its or their employees, to act for it or them.
PART 1202_RULES OF PROCEDURE--Table of Contents
Sec.
1202.1 Mediation.
1202.2 Interpretation of mediation agreements.
1202.3 Representation disputes.
[[Page 12]]
1202.4 Secret ballot.
1202.5 Rules to govern elections.
1202.6 Access to carrier records.
1202.7 Who may participate in elections.
1202.8 Hearings on craft or class.
1202.9 Appointment of arbitrators.
1202.10 Appointment of referees.
1202.11 Emergency boards.
1202.12 National Air Transport Adjustment Board.
1202.13 Air carriers.
1202.14 Labor members of Adjustment Board.
1202.15 Length of briefs in NMB hearing proceedings.
Authority: 44 Stat. 577, as amended; 45 U.S.C. 151-163.
Source: 11 FR 177A-922, Sept. 11, 1946, unless otherwise noted.
Redesignated at 13 FR 8740, Dec. 30, 1948.
Sec. 1202.1 Mediation.
The mediation services of the Board may be invoked by the parties,
or either party, to a dispute between an employee or group of employees
and a carrier concerning changes in rates of pay, rules, or working
conditions not adjusted by the parties in conference; also, concerning a
dispute not referable to the National Railroad Adjustment Board or
appropriate airline adjustment board, when not adjusted in conference
between the parties, or where conferences are refused. The National
Mediation Board may proffer its services in case any labor emergency is
found by it to exist at any time.
Sec. 1202.2 Interpretation of mediation agreements.
Under section 5, Second, of title I of the Railway Labor Act, in any
case in which a controversy arises over the meaning or application of
any agreement reached through mediation, either party to said agreement,
or both, may apply to the National Mediation Board for an interpretation
of the meaning or application of such agreement. Upon receipt of such
request, the Board shall, after a hearing of both sides, give its
interpretation within 30 days.
Sec. 1202.3 Representation disputes.
If any dispute shall arise among a carrier's employees as to who are
the representatives of such employees designated and authorized in
accordance with the requirements of the Railway Labor Act, it is the
duty of the Board, upon request of either party to the dispute, to
investigate such dispute and certify to both parties, in writing, the
name or names of individuals or organizations that have been designated
and authorized to represent the employees involved in the dispute, and
to certify the same to the carrier.
Sec. 1202.4 Secret ballot.
In conducting such investigation, the Board is authorized to take a
secret ballot of the employees involved, or to utilize any other
appropriate method of ascertaining the names of their duly designated
and authorized representatives in such manner as shall insure the choice
of representatives by the employees without interference, influence, or
coercion exercised by the carrier. Except in unusual or extraordinary
circumstances, in a secret ballot the Board shall determine the choice
of representative based on the majority of valid ballots cast.
[75 FR 26088, June 10, 2010]
Sec. 1202.5 Rules to govern elections.
In the conduct of a representation election, the Board shall
designate who may participate in the election, which may include a
public hearing on craft or class, and establish the rules to govern the
election, or may appoint a committee of three neutral persons who after
hearing shall within 10 days designate the employees who may participate
in the election.
Sec. 1202.6 Access to carrier records.
Under the Railway Labor Act the Board has access to and has power to
make copies of the books and records of the carriers to obtain and
utilize such information as may be necessary to fulfill its duties with
respect to representatives of carrier employees.
Sec. 1202.7 Who may participate in elections.
As mentioned in Sec. 1202.3, when disputes arise between parties to
a representation dispute, the National Mediation Board is authorized by
the Act to determine who may participate in the selection of employees
representatives.
[[Page 13]]
Sec. 1202.8 Hearings on craft or class.
In the event the contesting parties or organizations are unable to
agree on the employees eligible to participate in the selection of
representatives, and either party makes application by letter for a
formal hearing before the Board to determine the dispute, the Board may
in its discretion hold a public hearing, at which all parties interested
may present their contentions and argument, and at which the carrier
concerned is usually invited to present factual information. At the
conclusion of such hearings the Board customarily invites all interested
parties to submit briefs supporting their views, and after considering
the evidence and briefs, the Board makes a determination or finding,
specifying the craft or class of employees eligible to participate in
the designation of representatives.
Sec. 1202.9 Appointment of arbitrators.
Section 5, Third, (a) of the Railway Labor Act provides in the event
mediation of a dispute is unsuccessful, the Board endeavors to induce
the parties to submit their controversy to arbitration. If the parties
so agree, and the arbitrators named by the parties are unable to agree
upon the neutral arbitrator or arbitrators, as provided in section 7 of
the Railway Labor Act, it becomes the duty of the Board to name such
neutral arbitrators and fix the compensation for such service. In
performing this duty, the Board is required to appoint only those whom
it deems wholly disinterested in the controversy, and to be impartial
and without bias as between the parties thereto.
Sec. 1202.10 Appointment of referees.
Section 3, Third, (e) title I of the act makes it the duty of the
National Mediation Board to appoint and fix the compensation for service
a neutral person known as a ``referee'' in any case where a division of
the National Railroad Adjustment Board becomes deadlocked on an award,
such referee to sit with the division and make an award. The National
Mediation Board in appointing referees is bound by the same requirements
that apply in the appointment of neutral arbitrators as outlined in
Sec. 1202.9
Sec. 1202.11 Emergency boards.
Under the terms of section 10 of the Railway Labor Act, if a dispute
between a carrier and its employees is not adjusted through mediation or
the other procedures prescribed by the act, and should, in the judgment
of the National Mediation Board, threaten to interrupt interstate
commerce to a degree such as to deprive any section of the country of
essential transportation service, the Board shall notify the President,
who may thereupon, in his discretion, create an emergency board to
investigate and report to him respecting such dispute. An emergency
board may be composed of such number of persons as the President
designates, and persons so designated shall not be pecuniarily or
otherwise interested in any organization of employees or any carrier.
The compensation of emergency board members is fixed by the President.
An emergency board is created separately in each instance, and is
required to investigate the facts as to the dispute and report thereon
to the President within 30 days from the date of its creation.
Sec. 1202.12 National Air Transport Adjustment Board.
Under section 205, title II, of the Railway Labor Act, when in the
judgment of the National Mediation Board it becomes necessary to
establish a permanent national board of adjustment for the air carriers
subject to the act to provide for the prompt and orderly settlement of
disputes between the employees and the carriers growing out of
grievances, or out of the application or interpretation of working
agreements, the Board is empowered by its order made, published, and
served, to direct the air carriers and labor organizations, national in
scope, to select and designate four representatives to constitute a
Board known as the National Air Transport Adjustment Board. Two members
each shall be selected by the air carriers and the labor organizations
of their employees. Up to the present time, it has not been considered
necessary to establish the National Air Transport Adjustment Board.
[[Page 14]]
Sec. 1202.13 Air carriers.
By the terms of title II of the Railway Labor Act, which was
approved April 10, 1936, all of title I, except section 3, which relates
to the National Railroad Adjustment Board, was extended to cover every
common carrier by air engaged in interstate or foreign commerce, and
every carrier by air transporting mail for or under contract with the
United States Government, and to all employees or subordinate officials
of such air carriers.
Sec. 1202.14 Labor members of Adjustment Board.
Section 3, First, (f) of title I of the Railway Labor Act relating
to the settlement of disputes among labor organizations as to the
qualification of any such organization to participate in the selection
of labor members of the Adjustment Board, places certain duties upon the
National Mediation Board. This section of the act is quoted below:
(f) In the event a dispute arises as to the right of any national
labor organization to participate as per paragraph (c) of this section
in the selection and designation of the labor members of the Adjustment
Board, the Secretary of Labor shall investigate the claim of such labor
organization to participate, and if such claim in the judgment of the
Secretary of Labor has merit, the secretary shall notify the Mediation
Board accordingly, and within 10 days after receipt of such advice the
Mediation Board shall request those national labor organizations duly
qualified as per paragraph (c) of this section to participate in the
selection and designation of the labor members of the Adjustment Board
to select a representative. Such representatives, together with a
representative likewise designated by the claimant, and a third or
neutral party designated by the Mediation Board, constituting a board of
three, shall within 30 days after the appointment of the neutral member
investigate the claims of the labor organization desiring participation
and decide whether or not it was organized in accordance with section 2,
hereof, and is otherwise properly qualified to participate in the
selection of the labor members of the Adjustment Board, and the findings
of such boards of three shall be final and binding.
Sec. 1202.15 Length of briefs in NMB hearing proceedings.
(a) In the event briefs are authorized by the Board or the assigned
Hearing Officer, principal briefs shall not exceed fifty (50) pages in
length and reply briefs, if permitted, shall not exceed twenty-five (25)
pages in length unless the participant desiring to submit a brief in
excess of such limitation requests a waiver of such limitation from the
Board which is received within five (5) days of the date on which the
briefs were ordered or, in the case of a reply brief, within five (5)
days of receipt of the principal brief, and in such cases the Board may
require the filing of a summary of argument, suitably paragraphed which
shoud be a succinct, but accurate and clear, condensation of the
argument actually made in the brief.
(b) The page limitations provided by this section (Sec. 1202.15)
are exclusive of those pages containing the table of contents, tables of
citations and any copies of administrative or court decisions which have
been cited in the brief. All briefs shall be submitted on standard 8\1/
2\x11 inch paper with double spaced type.
(c) Briefs not complying with this section (Sec. 1202.15) will be
returned promptly to their initiators.
[44 FR 10601, Feb. 22, 1979]
PART 1203_APPLICATIONS FOR SERVICE--Table of Contents
Sec.
1203.1 Mediation services.
1203.2 Investigation of representation disputes.
1203.3 Interpretation of mediation agreements.
Authority: 44 Stat. 577, as amended; 45 U.S.C. 151-163.
Sec. 1203.1 Mediation services.
Applications for the mediation services of the National Mediation
Board under section 5, First, of the Railway Labor Act, may be made on
printed forms N.M.B. 2, copies of which may be secured from the Board's
Chief of Staff's Office or on the Internet at www.nmb.gov. Such
applications and all correspondence connected therewith should be
submitted in duplicate. The application should show the exact nature of
the dispute, the number of employees involved, name of the carrier and
name of the labor organization, date of agreement between the parties,
[[Page 15]]
if any, date and copy of notice served by the invoking party to the
other and date of final conference between the parties. Application
should be signed by the highest officer of the carrier who has been
designated to handle disputes under the Railway Labor Act, or by the
chief executive of the labor organization, whichever party files the
application. These applications, after preliminary investigation in the
Board's offices, are given docket number in series ``A'' and the cases
are assigned for mediation to Board members or to mediators on the
Board's staff.
[11 FR 177A-923, Sept. 11, 1946. Redesignated at 13 FR 8740, Dec. 30,
1948, as amended at 64 FR 40287, July 26, 1999]
Sec. 1203.2 Investigation of representation disputes.
Applications for the services of the National Mediation Board under
section 2, ninth, of the Railway Labor Act to investigate representation
disputes among carriers' employees may be made on printed forms NMB-3,
copies of which may be secured from the Board's Representation and Legal
Department or on the Internet at www.nmb.gov. Such applications and all
correspondence connected therewith should be filed in duplicate and the
applications should be accompanied by signed authorization cards from
the employees composing the craft or class involved in the dispute. The
applications should show specifically the name or description of the
craft of class of employees involved, the name of the invoking
organization, the name of the organization currently representing the
employees, if any, and the estimated number of employees in each craft
or class involved. The applications should be signed by the chief
executive of the invoking organization, or other authorized officer of
the organization. These disputes are given docket numbers in series
``R''.
[43 FR 30053, July 13, 1978, as amended at 64 FR 40287, July 26, 1999]
Sec. 1203.3 Interpretation of mediation agreements.
(a) Applications may be filed with the Board's Chief of Staff under
section 5, Second, of the Railway Labor Act, for the interpretation of
agreements reached in mediation under section 5, First. Such
applications may be made by letter from either party to the mediation
agreement stating the specific question on which an interpretation is
desired.
(b) This function of the National Mediation Board is not intended to
conflict with the provisions of section 3 of the Railway Labor Act.
Providing for interpretation of agreements by the National Railroad
Adjustment Board. Many complete working agreements are revised with the
aid of the Board's mediating services, and it has been the Board's
policy that disputes involving the interpretation or application of such
agreements should be handled by the Adjustment Board. Under this section
of the law the Board when called upon may only consider and render an
interpretation on the specific terms of an agreement actually signed in
mediation, and not for matters incident or corollary thereto.
[11 FR 177A-923, Sept. 11, 1946. Redesignated at 13 FR 8740, Dec. 30,
1948, as amended at 64 FR 40287, July 26, 1999]
PART 1204_LABOR CONTRACTS--Table of Contents
Sec.
1204.1 Making and maintaining contracts.
1204.2 Arbitrary changing of contracts.
1204.3 Filing of contracts.
Authority: 44 Stat. 577, as amended; 45 U.S.C. 151-163.
Source: 11 FR 177A-924, Sept. 11, 1946, unless otherwise noted.
Redesignated at 13 FR 8740, Dec. 30, 1948.
Sec. 1204.1 Making and maintaining contracts.
It is the duty of all carriers, their officers, agents, and
employees to exert every reasonable effort to make and maintain
contracts covering rates of pay, rules, and working conditions.
Sec. 1204.2 Arbitrary changing of contracts.
No carrier, its officers, or agents shall change the rates of pay,
rules, or working conditons of its employees, as a class as embodied in
agreements except in the manner prescribed in such agreements or in
section 6 of the Railway Labor Act.
[[Page 16]]
Sec. 1204.3 Filing of contracts.
Section 5, Third, (e) of the Railway Labor Act requires all carriers
to file with the National Mediation Board copies of all contracts in
effect with organizations representing their employees, covering rates
of pay, rules, and working conditions. Several thousand of such
contracts are on file in the Board's Washington office and are available
for inspection by interested parties.
PART 1205_NOTICES IN RE: RAILWAY LABOR ACT--Table of Contents
Sec.
1205.1 Handling of disputes.
1205.2 Employees' Bill of Rights.
1205.3 General Order No. 1.
1205.4 Substantive rules.
Authority: 44 Stat. 577, as amended; 45 U.S.C. 151-163.
Source: 11 FR 177A-924, Sept. 11, 1946, unless otherwise noted.
Redesignated at 13 FR 8740, Dec. 30, 1948.
Sec. 1205.1 Handling of disputes.
Section 2, Eighth, of the Railway Labor Act provides that every
carrier shall notify its employees by printed notices in such form and
posted at such times and places as shall be specified by order of the
Mediation Board and requires that all disputes between a carrier and its
employees will be handled in accordance with the requirements of the
act. In such notices there must be printed verbatim, in large type, the
third, fourth, and fifth paragraphs of said section 2, Eighth, of the
Railway Labor Act.
Sec. 1205.2 Employees' Bill of Rights.
The provisions of the third, fourth, and fifth paragraphs of section
2 are by law made a part of the contract of employment between the
carrier and each employee and shall be binding upon the parties
regardless of any other express or implied agreements between them.
Under these provisions the employees are guaranteed the right to
organize without interference of management, the right to determine who
shall represent them, and the right to bargain collectively through such
representatives. This section makes it unlawful for any carrier to
require any person seeking employment to sign any contract promising to
join or not to join a labor organization. Violation of the foregoing
provisions is a misdemeanor under the law and subjects the offender to
punishment.
Sec. 1205.3 General Order No. 1.
General Order No. 1, issued August 14, 1934, is the only order the
Board has issued since its creation in 1934. This order sent to the
President of each carrier coming under the act transmitted a sample copy
of the Mediation Board's Form MB-1 known as ``Notice in re: Railway
Labor Act.'' The order prescribes that such notices are to be standard
as to contents, dimensions of sheet, and size of type and that they
shall be posted promptly and maintained continuously in readable
condition on all the usual and customary bulletin boards giving
information to employees and at such other places as may be necessary to
make them accessible to all employees. Such notices must not be hidden
by other papers or otherwise obscured from view.
Sec. 1205.4 Substantive rules.
The only substantive rules issued by the National Mediation Board
are those authorized under section 2, Ninth, of the Railway Labor Act to
implement the procedure of determining employee representation.
[12 FR 2451, April 16, 1947. Redesignated at 13 FR 8740, Dec. 30, 1948,
as amended at 64 FR 40287, July 26, 1999]
PART 1206_HANDLING REPRESENTATION DISPUTES UNDER THE RAILWAY LABOR ACT--Table of Contents
Sec.
1206.1 Run-off elections.
1206.2 Percentage of valid authorizations required to determine
existence of a representation dispute.
1206.3 Age of authorization cards.
1206.4 Time limits on applications.
1206.5 Necessary evidence of intervenor's interest in a representation
dispute.
1206.6 Eligibility of dismissed employees to vote.
1206.7 Construction of this part.
1206.8 Amendment or rescission of rules in this part.
[[Page 17]]
Authority: 44 Stat. 577, as amended; 45 U.S.C. 151-163.
Source: 12 FR 3083, May 10, 1947, unless otherwise noted.
Redesignated at 13 FR 8740, Dec. 30, 1948.
Sec. 1206.1 Run-off elections.
(a) If in an election among any craft or class no organization or
individual receives a majority of the legal votes cast, or in the event
of a tie vote, a second or run-off election shall be held forthwith:
Provided, That a written request by an individual or organization
entitled to appear on the run-off ballot is submitted to the Board
within ten (10) days after the date of the report of results of the
first election.
(b) In the event a run-off election is authorized by the Board, the
names of the two individuals or organizations which received the highest
number of votes cast in the first election shall be placed on the run-
off ballot, and no blank line on which votes may write in the name of
any organization or individual will be provided on the run-off ballot.
(c) Employees who were eligible to vote at the conclusion of the
first election shall be eligible to vote in the run-off election except
(1) those employees whose employment relationship has terminated, and
(2) those employees who are no longer employed in the craft or class.
Sec. 1206.2 Percentage of valid authorizations required to determine existence
of a representation dispute.
(a) Where the employees involved in a representation dispute are
represented by an individual or labor organization, either local or
national in scope and are covered by a valid existing contract between
such representative and the carrier a showing of proved authorizations
(checked and verified as to date, signature, and employment status) from
at least a majority of the craft or class must be made before the
National Mediation Board will authorize an election or otherwise
determine the representation desires of the employees under the
provisions of section 2, Ninth, of the Railway Labor Act.
(b) Where the employees involved in a representation dispute are
unrepresented, a showing of proved authorizations from at least thirty-
five (35) percent of the employees in the craft or class must be made
before the National Mediation Board will authorize an election or
otherwise determine the representation desires of the employees under
the provisions of section 2, Ninth, of the Railway Labor Act.
Sec. 1206.3 Age of authorization cards.
Authorizations must be signed and dated in the employee's own
handwriting or witnessed mark. No authorizations will be accepted by the
National Mediation Board in any employee representation dispute which
bear a date prior to one year before the date of the application for the
investigation of such dispute.
Sec. 1206.4 Time limits on applications.
Except in unusual or extraordinary circumstances, the National
Mediation Board will not accept an application for investigation of a
representation dispute among employees of a carrier:
(a) For a period of two (2) years from the date of a certification
covering the same craft or class of employees on the same carrier, and
(b) For a period of one (1) year from the date on which:
(1) The Board dismissed a docketed application after having
conducted an election among the same craft or class of employees on the
same carrier and less than a majority of valid ballots cast were for
representation; or
(2) The Board dismissed a docketed application covering the same
craft or class of employees on the same carrier because no dispute
existed as defined in Sec. 1206.2 of these rules; or
(3) The Board dismissed a docketed application after the applicant
withdrew an application covering the same craft or class of employees on
the same carrier after the application was docketed by the Board.
[44 FR 10602, Feb. 22, 1979, as amended at 75 FR 26088, May 11, 2010]
Sec. 1206.5 Necessary evidence of intervenor's interest in a representation dispute.
In any representation dispute under the provisons of section 2,
Ninth, of the
[[Page 18]]
Railway Labor Act, an intervening individual or organization must
produce proved authorization from at least thirty-five (35) percent of
the craft or class of employees involved to warrant placing the name of
the intervenor on the ballot.
Sec. 1206.6 Eligibility of dismissed employees to vote.
Dismissed employees whose requests for reinstatement account of
wrongful dismissal are pending before proper authorities, which includes
the National Railroad Adjustment Board or other appropriate adjustment
board, are eligible to participate in elections among the craft or class
of employees in which they are employed at time of dismissal. This does
not include dismissed employees whose guilt has been determined, and who
are seeking reinstatement on a leniency basis.
Sec. 1206.7 Construction of this part.
The rules and regulations in this part shall be liberally construed
to effectuate the purposes and provisions of the act.
Sec. 1206.8 Amendment or rescission of rules in this part.
(a) Any rule or regulation in this part may be amended or rescinded
by the Board at any time.
(b) Any interested person may petition the Board, in writing, for
the issuance, amendment, or repeal of a rule or regulation in this part.
An original and three copies of such petition shall be filed with the
Board in Washington, DC, and shall state the rule or regulation proposed
to be issued, amended, or repealed, together with a statement of grounds
in support of such petition.
(c) Upon the filing of such petition, the Board shall consider the
same, and may thereupon either grant or deny the petition in whole or in
part, conduct an appropriate hearing thereon and make other disposition
of the petition. Should the petition be denied in whole or in part,
prompt notice shall be given of the denial, accompanied by a simple
statement of the grounds unless the denial is self-explanatory.
PART 1207_ESTABLISHMENT OF SPECIAL ADJUSTMENT BOARDS--Table of Contents
Sec.
1207.1 Establishment of special adjustment boards (PL Boards).
1207.2 Requests for Mediation Board action.
1207.3 Compensation of neutrals.
1207.4 Designation of PL Boards, filing of agreements, and disposition
of records.
Authority: 44 Stat. 577, as amended; 45 U.S.C. 151-163.
Source: 31 FR 14644, Nov. 17, 1966, unless otherwise noted.
Sec. 1207.1 Establishment of special adjustment boards (PL Boards).
Public Law 89-456 (80 Stat. 208) governs procedures to be followed
by carriers and representatives of employees in the establishment and
functioning of special adjustment boards, hereinafter referred to as PL
Boards. Public Law 89-456 requires action by the National Mediation
Board in the following circumstances:
(a) Designation of party member of PL Board. Public Law 89-456
provides that within thirty (30) days from the date a written request is
made by an employee representative upon a carrier, or by a carrier upon
an employee representative, for the establishment of a PL Board, an
agreement establishing such a Board shall be made. If, however, one
party fails to designate a member of the Board, the party making the
request may ask the Mediation Board to designate a member on behalf of
the other party. Upon receipt of such request, the Mediation Board will
notify the party which failed to designate a partisan member for the
establishment of a PL Board of the receipt of the request. The Mediation
Board will then designate a representative on behalf of the party upon
whom the request was made. This representative will be an individual
associated in interest with the party he is to represent. The designee,
together with the member appointed by the party requesting the
establishment of the PL Board, shall constitute the Board.
(b) Appointment of a neutral to determine matters concerning the
establishment and/or jurisdiction of a PL Board. (1) When the members of
a PL Board constituted in accordance with paragraph
[[Page 19]]
(a) of this section, for the purpose of resolving questions concerning
the establishment of the Board and/or its jurisdiction, are unable to
resolve these matters, then and in that event, either party may ten (10)
days thereafter request the Mediation Board to appoint a neutral member
to determine these procedural issues.
(2) Upon receipt of this request, the Mediation Board will notify
the other party to the PL Board. The Mediation Board will then designate
a neutral member to sit with the PL Board and resolve the procedural
issues in dispute. When the neutral has determined the procedural issues
in dispute, he shall cease to be a member of the PL Board.
(c) Appointment of neutral to sit with PL Boards and dispose of
disputes. (1) When the members of a PL Board constituted by agreement of
the parties, or by the appointment of a party member by the Mediation
Board, as described in paragraph (a) of this section, are unable within
ten (10) days after their failure to agree upon an award to agree upon
the selection of a neutral person, either member of the Board may
request the Mediation Board to appoint such neutral person and upon
receipt of such request, the Mediation Board shall promptly make such
appointment.
(2) A request for the appointment of a neutral under paragraph (b)
of this section or this paragraph (c) shall;
(i) Show the authority for the request--Public Law 89-456, and
(ii) Define and list the proposed specific issues or disputes to be
heard.
Sec. 1207.2 Requests for Mediation Board action.
(a) Requests for the National Mediation Board to appoint neutrals or
party representatives should be made on NMB Form 5.
(b) Those authorized to sign request on behalf on parties:
(1) The ``representative of any craft or class of employees of a
carrier,'' as referred to in Public Law 89-456, making request for
Mediation Board action, shall be either the General Chairman, Grand
Lodge Officer (or corresponding officer of equivalent rank), or the
Chief Executive of the representative involved. A request signed by a
General Chairman or Grand Lodge Officer (or corresponding officer of
equivalent rank) shall bear the approval of the Chief Executive of the
employee representative.
(2) The ``carrier representative'' making such a request for the
Mediation Board's action shall be the highest carrier officer designated
to handle matters arising under the Railway Labor Act.
(c) Docketing of PL Board agreements: The National Mediation Board
will docket agreements establishing PL Board, which agreements meet the
requirements of coverage as specified in Public Law 89-456. No neutral
will be appointed under Sec. 1207.1(c) until the agreement establishing
the PL Board has been docketed by the Mediation Board.
Sec. 1207.3 Compensation of neutrals.
(a) Neutrals appointed by the National Mediation Board. All neutral
persons appointed by the National Mediation Board under the provisions
of Sec. 1207.1 (b) and (c) will be compensated by the Mediation Board
in accordance with legislative authority. Certificates of appointment
will be issued by the Mediation Board in each instance.
(b) Neutrals selected by the parties. (1) In cases where the party
members of a PL Board created under Public Law 89-456 mutually agree
upon a neutral person to be a member of the Board, the party members
will jointly so notify the Mediation Board, which Board will then issue
a certificate of appointment to the neutral and arrange to compensate
him as under paragraph (a) of this section.
(2) The same procedure will apply in cases where carrier and
employee representatives are unable to agree upon the establishment and
jurisdiction of a PL Board, and mutually agree upon a procedural neutral
person to sit with them as a member and determine such issues.
Sec. 1207.4 Designation of PL Boards, filing of agreements, and disposition of records.
(a) Designation of PL Boards. All special adjustment boards created
under Public Law 89-456 will be designated
[[Page 20]]
PL Boards, and will be numbered serially, commencing with No. 1, in the
order of their docketing by the National Mediation Board.
(b) Filing of agreements. The original agreement creating the PL
Board under Public Law 89-456 shall be filed with the National Mediation
Board at the time it is executed by the parties. A copy of such
agreement shall be filed by the parties with the Administrative Officer
of the National Railroad Adjustment Board, Chicago, Ill.
(c) Disposition of records. Since the provisions of section 2(a) of
Public Law 89-456 apply also to the awards of PL Boards created under
this Act, two copies of all awards made by the PL Boards, together with
the record of proceedings upon which such awards are based, shall be
forwarded by the neutrals who are members of such Boards, or by the
parties in case of disposition of disputes by PL Boards without
participation of neutrals, to the Administrative Officer of the National
Railroad Adjustment Board, Chicago, Ill., for filing, safekeeping, and
handling under the provisions of section 2(q), as may be required.
PART 1208_AVAILABILITY OF INFORMATION--Table of Contents
Sec.
1208.1 Purpose.
1208.2 Production or disclosure of material or information.
1208.3 General policy.
1208.4 Material relating to representation function.
1208.5 Material relating to mediation function--confidential.
1208.6 Schedule of fees and methods of payment for services rendered.
1208.7 Compliance with subpoenas.
Authority: 5 U.S.C. 552; 45 U.S.C. 151-163.
Source: 39 FR 1751, Jan. 14, 1974, unless otherwise noted.
Sec. 1208.1 Purpose.
The purpose of this part is to set forth the basic policies of the
National Mediation Board and the National Railroad Adjustment Board in
regard to the availability and disclosure of information in the
possession of the NMB and the NRAB.
Sec. 1208.2 Production or disclosure of material or information.
(a) Requests for identifiable records and copies. (1) All requests
for National Mediation Board records shall be filed in writing by
mailing, faxing, or delivering the request to the Chief of Staff,
National Mediation Board, Washington, DC 20572.
(2) The request shall reasonably describe the records being sought
in a manner which permits identification and location of the records.
(i) If the description is insufficient to locate the records, the
National Mediation Board will so notify the person making the request
and indicate the additional information needed to identify the records
requested.
(ii) Every reasonable effort shall be made by the Board to assist in
the identification and location of the records sought.
(3) Upon receipt of a request for the records the Chief of Staff
shall maintain records in reference thereto which shall include the date
and time received, the name and address of the requester, the nature of
the records requested, the action taken, the date the determination
letter is sent to the requester, appeals and action thereon, the date
any records are subsequently furnished the number of staff hours and
grade levels of persons who spent time responding to the request, and
the payment requested and received.
(4) All time limitations established pursuant to this section with
respect to processing initial requests and appeals shall commence at the
time a written request for records is received at the Board's offices in
Washington, DC.
(i) An oral request for records shall not begin any time
requirement.
(ii) [Reserved]
(b) Processing the initial request--(1) Time limitations. Within 20
working days (excepting Saturdays, Sundays, and working holidays) after
a request for records is received, the Chief of Staff shall determine
and inform the requester by letter whether or the extent to which the
request will be complied with, unless an extension is taken under
paragraph (b)(3) of this section.
(2) Such reply letter shall include:
[[Page 21]]
(i) A reference to the specific exemption or exemptions under the
Freedom of Information Act (5 U.S.C. 552) authorizing the withholding of
the record, a brief explanation of how the exemption applies to the
record withheld.
(ii) The name or names and positions of the person or persons, other
than the Chief of Staff, responsible for the denial.
(iii) A statement that the denial may be appealed within thirty days
by writing to the Chairman, National Mediation Board, Washington, D. C.
20572, and that judicial review will thereafter be available in the
district in which the requester resides, or has his principal place of
business, or the district in which the agency records are situated, or
the District of Columbia.
(3) Extension of time. In unusual circumstances as specified in this
paragraph, the Chief of Staff may extend the time for initial
determination on requests up to a total of ten days (excluding
Saturdays, Sundays, and legal public holidays). Extensions shall be
granted in increments of five days or less and shall be made by written
notice to the requester which sets forth the reason for the extension
and the date on which a determination is expected to be dispatched. As
used in this paragraph ``unusual circumstances'' means, but only to the
extent necessary to the proper processing of the request:
(i) The need to search for and collect the requested records from
field facilities or other establishments that are separate from the
office processing the request;
(ii) The need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records which are demanded in
a single request; or
(iii) The need for consultation, which shall be conducted with all
practicable speed, with another agency or another division having
substantial interest in the determination of the request, or the need
for consultation among two or more components of the agency having
substantial subject matter interest therein.
(4) Treatment of delay as a denial. If no determination has been
dispatched at the end of the ten-day period, or the last extension
thereof, the requester may deem his request denied, and exercise a right
of appeal, in accordance with paragraph (c) of this section. When no
determination can be dispatched within the applicable time limit, the
responsible official shall nevertheless continue to process the request;
on expiration of the time limit he shall inform the requester of the
reason for the delay, of the date on which a determination may be
expected to be dispatched, and of his right to treat the delay as a
denial and to appeal to the Chairman of the Board in accordance with
paragraph (c) of this section and he may ask the requester to forego
appeal until a determination is made.
(c) Appeals to the Chairman of the Board. (1) When a request for
records has been denied in whole or in part by the Chief of Staff or
other person authorized to deny requests, the requester may, within
thirty days of its receipt, appeal the denial to the Chairman of the
Board. Appeals to the Chairman shall be in writing, addressed to the
Chairman, National Mediation Board, Washington, DC 20572.
(2) The Chairman of the Board will act upon the appeal within twenty
working days (excluding Saturdays, Sundays and legal public holidays) of
its receipt unless an extension is made under paragraph (c)(3) of this
section.
(3) In unusual circumstances as specified in this paragraph (c)(3),
the time for action on an appeal may be extended up to ten days
(excluding Saturdays, Sundays and legal public holidays) minus any
extension granted at the initial request level pursuant to paragraph
(b)(3) of this section. Such extension shall be made written notice to
the requester which sets forth the reason for the extension and the date
on which a determination is expected to be dispatched. As used in this
paragraph (c)(3) ``unusual circumstances'' means, but only to the extent
necessary to the proper processing of the appeal:
(i) The need to search for and collect the requested records from
field facilities or other establishments that are separate from the
office processing the request;
[[Page 22]]
(ii) The need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records which are demanded in
a single request; or
(iii) The need for consultation, which shall be conducted with all
practicable speed, with another agency or another division having
substantial interest in the determination of the request or the need for
consultation among components of the agency having substantial subject
matter interest therein.
(4) Treatment of delay as a denial. If no determination on the
appeal has been dispatched at the end of the twenty-day period or the
last extension thereof, the requester is deemed to have exhausted his
administrative remedies, giving rise to a right of review in a district
court of the United States, as specified in 5 U.S.C. 552(a)(4). When no
determination can be dispatched within the applicable time limit, the
appeal will nevertheless continue to be processed; on expiration of the
time limit the requester shall be informed of the reason for the delay,
of the date on which a determination may be expected to be dispatched,
and of his right to seek judicial review in the United States district
court in the district in which he resides or has his principal place of
business, the district in which the Board records are situated or the
District of Columbia. The requester may be asked to forego judicial
review until determination of the appeal.
(d) Indexes of certain records. The National Mediation Board at its
office in Washington, DC will maintain, make available for public
inspection and copying, and publish quarterly (unless the Board
determines by order published in the Federal Register that such
publication would be unnecessary or impracticable) a current index of
the materials available at the Board offices which are required to be
indexed by 5 U.S.C. 552(a)(2).
(1) A copy of such index shall be available at cost from the
National Mediation Board, Washington, DC 20572.
(2) [Reserved]
[63 FR 44394, Aug. 19, 1998]
Sec. 1208.3 General policy.
(a) Public policy and the successful effectuation of the NMB's
mission require that Board members and the employees of the NMB maintain
a reputation for impartiality and integrity. Labor and management and
other interested parties participating in mediation efforts must have
assurance, as must labor organizations and individuals involved in
questions of representation, that confidential information disclosed to
Board members and employees of the NMB will not be divulged, voluntarily
or by compulsion.
(b) Notwithstanding this general policy, the Board will under all
circumstances endeavor to make public as much information as can be
allowed.
Sec. 1208.4 Material relating to representation function.
(a) The documents constituting the record of a case, such as the
notices of hearing, motions, rulings, orders, stenographic reports of
the hearings, briefs, exhibits, findings upon investigation,
determinations of craft or class, interpretations, dismissals,
withdrawals, and certifications, are matters of official record and are
available for inspection and examination during the usual business hours
at the Board's offices in Washington.
(b) This part notwithstanding, the Board will treat as confidential
the evidence submitted in connection with a representation dispute and
the investigatory file pertaining to the representation function.
Sec. 1208.5 Material relating to mediation function--confidential.
(a) All files, reports, letters, memoranda, documents, and papers
(hereinafter referred to as confidential documents) relating to the
mediation function of the NMB, in the custody of the NMB or its
employees relating to or acquired in their mediatory capacity under any
applicable section of the Railway Labor Act of 1926, as amended, are
hereby declared to be confidential. No such confidential documents or
the material contained therein shall be disclosed to any unauthorized
person, or be taken or withdrawn, copied or removed from the custody of
the NMB or its employees by any person or by any
[[Page 23]]
agent of such person or his representative without the explicit consent
of the NMB.
(b) However, the following specific documents: Invocation or proffer
of mediation, the reply or replies of the parties, the proffer of
arbitration and replies thereto, and the notice of failure of mediatory
efforts in cases under section 5, First of the Railway Labor Act, as
amended, are matters of official record and are available for inspection
and examination.
(c) Interpretations of mediation agreements by the NMB, arising out
of section 5, Second, of the Railway Labor Act, as amended, are public
records and are therefore open for public inspection and examination.
Sec. 1208.6 Schedule of fees and methods of payment for services rendered.
(a) Definitions. For the purposes of this section the following
definitions apply:
(1) Direct costs means those expenditures which the National
Mediation Board actually incurs in searching for, duplicating, and, in
the case of commercial requesters, reviewing documents to respond to a
FOIA request. For example, direct costs include the salary of the
employee performing the work (the basic rate of pay for the employee
plus sixteen percent of the rate to cover benefits) and the cost of
operating duplicating machinery. Not included in direct costs are
overhead expenses such as costs of space and heating or lighting the
facility in which the records are stored.
(2) Search includes all time spent looking for material that is
responsive to a request, including page-by-page and line-by-line
identification of material within documents. Searches may be done
manually or by computer using existing programming.
(3) Duplication refers to the process of making a copy of a document
necessary to respond to a FOIA request. Such copies can take the form of
paper copy, microfilm, audiovisual materials, or machine readable
documentation (e.g., magnetic tape or disk), among others.
(4) Review refers to the process of examining documents located in
response to a commercial use request (see paragraph (a)(5) of this
section) to determine whether any portion of any document located is
permitted to be withheld. It also includes processing any documents for
disclosure, e.g., doing all that is necessary to excise them and
otherwise prepare them for release. Review does not include time spent
resolving general legal or policy issues regarding the application of
exemptions.
(5) Commercial use request refers to a request from or on behalf of
one who seeks information for a use or purpose that furthers the
commercial, trade, or profit interests of the requester or the person on
whose behalf the request is made. In determining whether a requester
properly belongs in this category, the NMB will look first to the use
which a requester will put the document requested. Where the NMB has
reasonable cause to doubt the use is not clear from the request itself,
the National Mediation Board may seek additional clarification before
assigning the request to a specific category.
(6) Educational institution refers to a preschool, a public or
private elementary or secondary school, an institution of graduate
higher education, an institution of undergraduate higher education, an
institution of professional education and an institution of vocational
education, which operates a program or programs of scholarly research.
(7) Non-commercial scientific institution refers to an institution
that is not operated on a commercial basis as that term is defined in
paragraph (a)(5) of this section, and which is operated solely for the
purpose of conducting scientific research the results of which are not
intended to promote any particular product or industry.
(8) Representative of the news media refers to any person actively
gathering news for an entity that is organized and operated to publish
or broadcast news to the public. The term ``news'' means information
that is about current events or that would be of current interest to the
public. These examples are not intended to be all inclusive. In the case
of ``freelance'' journalists, they may be regarded as working for a news
organization if they demonstrate a solid basis for expecting publication
[[Page 24]]
through that organization, even though not actually employed by it. A
publication contract would be the clearest proof, but the NMB may also
look to the past publication record of a requester in making this
determination.
(b) Exceptions of fee charges. (1) With the exception of requesters
seeking documents for a commercial use, the NMB will provide the first
100 pages of duplication and the first two hours of search time without
charge. The word ``pages'' in this paragraph (b) refers to paper copies
of standard size, usually 8.5x11, or their
equivalent in microfiche or computer disks. The term ``search time'' in
this paragraph (b) is based on a manual search for records. In applying
this term to searches made by computer, when the cost of the search as
set forth in paragraph (d)(2) of this section equals the equivalent
dollar amount of two hours of the salary of the person performing the
search, the NMB will begin assessing charges for computer search.
(2) The NMB will not charge fees to any requester, including
commercial use requesters, if the cost of collecting the fee would be
equal to or greater than the fee itself.
(3) (i) The NMB will provide documents without charge or at reduced
charges if disclosure of the information is in the public interest
because it is likely to contribute significantly to public understanding
of the operations or activities of the government and is not primarily
in the commercial interest of the requester.
(ii) In determining whether disclosure is in the public interest
under paragraph (b)(3)(i) of this section, the NMB will consider the
following factors:
(A) The subject of the request. Whether the subject of the requested
records concerns ``the operations or activities of the government'';
(B) The informative value of the information to be disclosed.
Whether the disclosure is ``likely to contribute'' to an understanding
of government operations or activities;
(C) The contribution to an understanding of the subject by the
general public likely to result from disclosure. Whether disclosure of
the requested information will contribute to ``public understanding'';
(D) The significance of the contributions to the public
understanding. Whether the disclosure is likely to contribute
``significantly'' to public understanding of government operations or
activities;
(E) The existence and magnitude of a commercial interest. Whether
the requester has a commercial interest that would be furthered by the
requested disclosure; and, if so
(F) The primary interest in disclosure. Whether the magnitude of the
identified commercial interest of the requester is sufficiently large,
in comparison with the public interest in disclosure, that disclosure is
``primarily in the commercial interest of the requester.''
(iii) A request for a fee waiver based on the public interest under
paragraph (b)(3)(i) of this section must address the factors of
paragraph (b)(3)(ii) of this section as they apply to the request for
records in order to be considered by the Chief of Staff.
(c) Level of fees to be charged. The level of fees to be charged by
the NMB in accordance with the schedule set forth in paragraph (d) of
this section, depends on the category of the requester. The fee levels
to be charged are as follows:
(1) A request for documents appearing to be for commercial use will
be charged to recover the full direct costs of searching for, reviewing
for release, and duplicating the records sought.
(2) A request for documents from an educational or non-commercial
scientific institution will be charged for the cost of reproduction
alone, excluding charges for the first 100 pages. To be eligible for
inclusion in this category, requesters must show that the request is
being made under the auspices of a qualifying institution and that the
records are not sought for a commercial use, but are sought in
furtherance of scholarly (if the request is from an educational
institution) or scientific (if the request is from a non-commercial
scientific institution) research.
(3) The NMB shall provide documents to requesters who are
representatives
[[Page 25]]
of the news media for the cost of reproduction alone, excluding charges
for the first 100 pages.
(4) The NMB shall charge requesters who do not fit into any of the
categories above such fees which recover the full direct cost of
searching for and reproducing records that are responsive to the
request, except that the first 100 pages of reproduction and the first
two hours of search time shall be furnished without charge. All
requesters must reasonably describe the records sought.
(d) The following fees shall be charged in accordance with paragraph
(c) of this section:
(1) Manual searches for records. The salary rate (i.e., basic pay
plus sixteen percent) of the employee(s) making the search. Search time
under this paragraph and paragraph (d)(2) of this section may be charged
for even if the NMB fails to locate responsive records or if records
located are determined to be exempt from disclosure.
(2) Computer searches for records. The actual direct cost of
providing the service, including computer search time directly
attributable to searching for records responsive to a FOIA request,
runs, and operator salary apportionable to the search.
(3) Review of records. The salary rate (i.e., basic pay plus sixteen
percent) of the employee(s) conducting the review. This charge applies
only to requesters who are seeking documents for commercial use and only
to the review necessary at the initial administrative level to determine
the applicability of any relevant FOIA exemptions, and not at the
administrative appeal level or an exemption already applied.
(4) Certification or authentication of records. $2.00 per
certification or authentication.
(5) Duplication of records. Fifteen cents per page for paper copy
reproduction of documents, which the NMB determined is the reasonable
direct cost of making such copies taking into account the average salary
of the operator and the cost of the reproduction machinery. For copies
of records prepared by computer, such as tapes or printouts, the NMB
shall charge the actual cost, including operator time, of production of
the tape or printout.
(6) Forwarding material to destination. Postage, insurance and
special fees will be charged on an actual cost basis.
(7) Other costs. All other direct costs of preparing a response to a
request shall be charged to requester in the same amount as incurred by
NMB.
(e) Aggregating requests. When the NMB reasonably believes that a
requester or group of requesters is attempting to break a request down
into a series of requests for the purpose of evading the assessment of
fees, the NMB will aggregate any such requests and charge accordingly.
(f) Charging interest. Interest at the rate prescribed in 31 U.S.C.
3717 may be charged those requesters who fail to pay fees charged,
beginning on the thirtieth day following the billing date. Receipt of a
fee by the NMB, whether processed or not, will stay the accrual of
interest. If a debt is not paid, the agency may use the provisions of
the Debt Collection Act of 1982, (Pub. L. 97-365, 96 Stat. 1749)
including disclosure to consumer reporting agencies, for the purpose of
obtaining payment.
(g) Advance payments. The NMB will not require a requester to make
an advance payment, i.e., payment before work is commenced or continued
on a request, unless:
(1) The NMB estimates or determines that allowable charges that a
requester may be required to pay are likely to exceed $250. Then the NMB
will notify the requester of the likely cost and obtain satisfactory
assurances of full payment where the requester has a history of prompt
payment of FOIA fees, or require an advance payment of an amount up to
the full estimated charges in the case of requesters with no history of
payment; or
(2) A requester has previously failed to pay a fee charge in a
timely fashion (i.e, within thirty days of the date of the billing), in
which case the NMB requires the requester to pay the full amount owed
plus any applicable interest as provided above or demonstrate that he
has, in fact, paid the fee, and to make an advance payment of the full
amount of the estimated fee before the agency begins to process a new
request or a pending request from that requester. When the NMB acts
under paragraph (g)(1) or (2) of this section,
[[Page 26]]
the administrative time limits prescribed in subsection (a)(6) of the
FOIA (i.e., twenty working days from receipt of initial requests and
twenty working days from receipt of appeals from initial denial, plus
permissible extension of these time limits) will begin only after the
NMB has received fee payments described in this paragraph (g).
(h) Payment. Payment of fees shall be made by check or money order
payable to the United States Treasury.
[63 FR 44395, Aug. 19, 1998]
Sec. 1208.7 Compliance with subpoenas.
(a) No person connected in any official way with the NMB shall
produce or present any confidential records of the Board or testify on
behalf of any party to any cause pending in any court, or before any
board, commission, committee, tribunal, investigatory body, or
administrative agency of the U.S. Government, or any State or Territory
of the United States, or the District of Columbia, or any municipality
with respect to matters coming to his knowledge in his official capacity
or with respect to any information contained in confidential documents
of the NMB, whether in answer to any order, subpoena, subpoena duces
tecum, or otherwise without the express written consent of the Board.
(b) Whenever any subpoena or subpoena duces tecum calling for
confidential documents, or the information contained therein, or
testimony as described above shall have been served on any such person,
he will appear in answer thereto, and unless otherwise expressly
permitted by the Board, respectfully decline, by reason of this section,
to produce or present such confidential documents or to give such
testimony.
PART 1209_PUBLIC OBSERVATION OF NATIONAL MEDIATION BOARD MEETINGS--Table of Contents
Sec.
1209.01 Scope and purpose.
1209.02 Definitions.
1209.03 Conduct of National Mediation Board business.
1209.04 Open meetings.
1209.05 Closing of meetings; reasons therefor.
1209.06 Action necessary to close meetings; record of votes.
1209.07 Notice of meetings; public announcement and publication.
1209.08 Transcripts, recordings or minutes of closed meetings;
retention; public availability.
1209.09 Requests for records under Freedom of Information Act.
1209.10 Capacity of public observers.
Authority: 5 U.S.C. 552(b)(g).
Source: 42 FR 60739, Nov. 29, 1977, unless otherwise noted.
Sec. 1209.01 Scope and purpose.
(a) The provisions of this part are intended to implement the
requirements of section 3(a) of the Government in the Sunshine Act, 5
U.S.C. 552b.
(b) It is the policy of the National Mediation Board that the public
is entitled to the fullest practicable information regarding its
decisionmaking processes. It is the purpose of this part to provide the
public with such information while protecting the rights of individuals
and the ability of the agency to carry out its responsibilities.
Sec. 1209.02 Definitions.
For purposes of this part:
(a) The terms Board or Agency mean the National Mediation Board, a
collegial body composed of three members appointed by the President with
the advice and consent of the Senate.
(b) The term meeting means the deliberations of at least two members
of the Board where such deliberations determine or result in the joint
conduct or disposition of official agency business, but does not include
deliberations required or permitted or with respect to any information
proposed to be withheld under by 5 U.S.C. 552b(d) or (e)/5 U.S.C.
552b(c).
Sec. 1209.03 Conduct of National Mediation Board business.
Members shall not jointly conduct or dispose of agency business
other than in accordance with this part.
Sec. 1209.04 Open meetings.
Every portion of every Board meeting shall be open to public
observation except as otherwise provided by Sec. 1209.05 of this part.
[[Page 27]]
Sec. 1209.05 Closing of meetings; reasons therefor.
(a) Except where the Board determines that the public interest
requires otherwise, meetings, or portions thereof, shall not be open to
public observation where the deliberations concern the issuance of a
subponea, the Board's participation in a civil action or proceeding or
an arbitration, or the initiation, conduct or disposition by the Board
of any matter involving a determination on the record after opportunity
for a hearing, or any court proceeding collateral or ancillary thereto.
(b) Except where the Board determines that the public interest
requires otherwise, the Board also may close meetings, or portions
thereof, when the deliberations concern matters or information falling
within the scope of 5 U.S.C. 552b (c)(1) (secret matters concerning
national defense or foreign policy); (c)(2) (internal personnel rules
and practices); (c)(3) (matters specifically exempted from disclosure by
statute); (c)(4) (trade secrets and commercial or financial information
obtained from a person and privileged or confidential); (c)(5) (matters
of alleged criminal conduct or formal censure); (c)(6) (personal
information where disclosure would cause a clearly unwarranted invasion
of personal privacy); (c)(7) (certain materials or information from
investigatory files compiled for law enforcement purposes); or (c)(9)(B)
(disclosure would significantly frustrate implementation of a proposed
agency action).
Sec. 1209.06 Action necessary to close meetings; record of votes.
A meeting shall be closed to public observation under Sec. 1209.05,
only when a majority of the members of the Board who will participate in
the meeting vote to take such action.
(a) When the meeting deliberations concern matters specified in
Sec. 1209.05(a), the Board members shall vote at the beginning of the
meeting, or portion thereof, on whether to close such meeting, or
portion thereof, to public observation, and on whether the public
interest requires that a meeting which may properly be closed should
nevertheless be open to public observation A record of such vote,
reflecting the vote of each member of the Board, shall be kept and made
available to the public at the earliest practicable time.
(b) When the meeting deliberations concerns matters specified in
Sec. 1209.05(b), the Board shall vote on whether to close such meeting,
or portion thereof, to public ovservation, and on whether the public
interest requires that a meeting which may properly be closed should
nevertheless be open to public observation. The vote shall be taken at a
time sufficient to permit inclusion of information concerning the open
or closed status of the meeting in the public announcement thereof. A
single vote may be taken with respect to a series of meetings at which
the deliberations will concern the same particular matters where
subsequent meetings in the series are scheduled to be held within one
day after the vote is taken.
(c) Whenever any person whose interests may be directly affected by
deliberations during a meeting, or a portion thereof, requests that the
Board close that meeting, or portion thereof, to public observation for
any of the reasons specified in 5 U.S.C. 552b(c)(5) (matters of alleged
criminal conduct or formal censure), (c)(6) (personal information where
disclosure would cause a clearly unwarranted invasion of personal
privacy), or (c)(7) (certain materials or information from investigatory
files compiled for law enforcement purposes), the Board members
participating in the meeting upon request of any one member of the
Board, shall vote on whether to close such meeting, or any portion
thereof, for that reason. A record of such vote, reflecting the vote of
each member of the Board participating in the meeting, shall be kept and
made available to the public within one day after the vote is taken.
(d) After public announcement of a meeting as provided in Sec.
1209.07 of this part, a meeting, or portion thereof, announced as closed
may be opened or a meeting, or portion thereof, announced as open may be
closed, only if a majority of the members of the Board who will
participate in the meeting determine by a recorded vote that Board
business so requires and that an earlier announcement of the change was
not possible. The change made and the vote of each member on the change
shall be
[[Page 28]]
announced publicly at the earliest practicable time.
(e) Before a meeting may be closed pursuant to Sec. 1209.05 the
General Counsel of the Board shall certify that in his or her opinion
the meeting may properly be closed to public observation. The
certification shall set forth each applicable exemptive provision for
such closing. The certification shall be retained by the agency and made
publicly available as soon as practicable.
Sec. 1209.07 Notice of meetings; public announcement and publication.
(a) A public announcement setting forth the time, place and subject
matter of meetings or portions thereof closed to public observation
pursuant to the provisions of Sec. 1209.05(a) of this part, shall be
made at the earaliest practicable time.
(b) Except for meetings closed to public observation pursuant to the
provisions of Sec. 1209.05(a) of this part, the agency shall make
public announcement of each meeting at least 7 days before the scheduled
date of the meeting. The announcement shall specify the time, place and
subject matter of the meeting, whether it is to be open to public
observation or closed, and the name, address and phone number of an
agency official designated to respond to requests for information about
the meeting. The 7 day period for advance notice may be shortened only
upon a determination by a majority of the members of the Board who will
participate in the meeting that agency business requires that such
meeting be called at an earlier date, in which event the public
announcement shall be made at the earliest practicable time. A record of
the vote to schedule a meeting at an earlier date shall be kept and made
available to the public.
(c) Within one day after a vote to close a meeting, or any portion
thereof, pursuant to the provisions of Sec. 1209.05(b) of this part,
the agency shall make publicly available a full written explanation of
its action closing the meeting, or portion thereof, together with a list
of all persons expected to attend the meeting and their affiliation.
(d) If after a public announcement required by paragraph (b) of this
section has been made, the time and place of the meeting are changed, a
public announcement of such changes shall be made at the earliest
practicable time. The subject matter of the meeting may be changed after
public annmouncment thereof only if a majority of the members of the
Board who will participate in the meeting determine that agency business
so requires and that no earlier announcement of the change was possible.
When such a change in subject matter is approved a public announcement
of the change shall be made at the earliest practicable time. A record
of the vote to change the subject matter of the meeting shall be kept
and made available to the public.
(e) All announcements or changes thereof issued pursuant to the
provisions of paragraphs (b) and (d) of this section, or pursuant to the
provisions of Sec. 1209.06(d), shall be submitted for publication in
the Federal Register immediately following their release to the public.
(f) Announcement of meeting made pursuant to the provisions of this
section shall be posted on a bulletin board maintained for such purpose
at the Board's offices, 1425 K Street, NW., Washington, DC. Interested
individuals or organizations may request the Chief of Staff, National
Mediation Board, Washington, DC 20572 to place them on a mailing list
for receipt of such announcements.
[42 FR 60739, Nov. 29, 1977, as amended at 64 FR 40287, July 26, 1999]
Sec. 1209.08 Transcripts, recordings or minutes of closed meetings; retention;
public availability.
(a) For every meeting or portion thereof closed under the provisions
of Sec. 1209.05, the presiding officer shall prepare a statement
setting forth the time and place of the meeting and the persons present,
which statement shall be retained by the agency. For each such meeting
or portion thereof there also shall be maintained a complete transcript
or electronic recording of the proceedings, except that for meetings
closed pursuant to Sec. 1209.05(a) the Board may, in lieu of a
transcript or electronic recording, maintain a set of minutes fully and
accurately summarizing any action taken, the reason
[[Page 29]]
therefor and views thereof, documents considered, and the members' vote
on each roll call vote.
(b) The agency shall maintain a complete verbatim transcript, a
complete electronic recording, or a complete set of minutes for each
meeting or portion thereof closed to public observation, for a period of
at least one year after the close of the agency proceeding of which the
meeting was a part, but in no event for a period of less than two years
after such meeting.
(c) The agency shall make promptly available to the public copies of
transcripts, electronic recordings or minutes maintained as provided in
paragraphs (a) and (b) of this section, except to the extent the items
therein contain information which the agency determines may be withheld
pursuant to the provisions of 5 U.S.C. 552b(c).
(d) Upon request in accordance with the provisions of this paragraph
and except to the extent they contain information which the agency
determines may be withheld pursuant to the provisions of 5 U.S.C.
552b(c), copies of transcripts or minutes, or transcriptions of
electronic recordings including the identification of speakers, shall be
furnished subject to the payment of duplication costs in accordance with
the schedule of fees set forth in Sec. 1208.06 of the Board's Rules,
and the actual cost of transcription. Requests for copies of transcripts
or minutes, or transcriptions of electronic recordings of Board meetings
shall be directed to the Chief of Staff, National Mediation Board,
Washington, DC 20572. Such requests shall reasonably identify the
records sought and include a statement that whatever costs are involved
in furnishing the records will be acceptable or, alternatively, that
costs will be acceptable up to a specified amount. The Board may
determine to require prepayment of such costs.
[42 FR 60739, Nov. 29, 1977, as amended at 64 FR 40287, July 26, 1999]
Sec. 1209.09 Requests for records under Freedom of Information Act.
Requests to review or obtain copies of agency records other than
notices or records prepared under this part may be pursued in accordance
with the Freedom of Information Act (5 U.S.C. 552). Part 1208 of the
Board's Rules addresses the requisite procedures under that Act.
Sec. 1209.10 Capacity of public observers.
The public may attend open Board meetings for the sole purpose of
observation. Observers may not participate in meetings unless expressly
invited or otherwise interfere with the conduct and disposition of
agency business. When a portion of a meeting is closed to the public,
observers will leave the meeting room upon request to enable discussion
of the exempt matter therein under consideration.
[[Page 31]]
CHAPTER XII--FEDERAL MEDIATION AND CONCILIATION SERVICE
--------------------------------------------------------------------
Part Page
1400 Standards of conduct, responsibilities, and
discipline.............................. 33
1401 Public information.......................... 38
1402 Procedures of the Service................... 44
1403 Functions and duties........................ 45
1404 Arbitration services........................ 47
1405 Part-time employment........................ 55
1410 Privacy..................................... 57
1420 Federal Mediation and Conciliation Service--
assistance in the health care industry.. 60
1425 Mediation assistance in the Federal Service. 63
1430 Federal Mediation and Conciliation Service
advisory committees..................... 66
1440 Arbitration of pesticide data disputes...... 70
1450 Collections of claims owed the United States 78
1470 Uniform administrative requirements for
grants and cooperative agreements to
State and local governments............. 91
1471 Governmentwide debarment and suspension
(nonprocurement)........................ 118
1472 Governmentwide requirements for drug-free
workplace (financial assistance)........ 141
[[Page 33]]
PART 1400_STANDARDS OF CONDUCT, RESPONSIBILITIES, AND DISCIPLINE--Table of Contents
Subpart A_General
Sec.
1400.735-3 Advice and counseling service.
Subpart B_Employees: Ethical and Other Conduct and Responsibilities
1400.735-12 Outside employment, business activities, or interests (paid
or unpaid).
1400.735-19 Influencing Members of Congress.
1400.735-20 Code of Professional Conduct for Labor Mediators.
1400.735-21 Miscellaneous statutory provisions.
Subpart F_Disciplinary Actions and Penalties
1400.735-60 Disciplinary actions.
1400.735-61 Notice to and appeal of employee.
Appendix to Part 1400--Code of Professional Conduct for Labor Mediators
Authority: E.O. 11222, 30 FR 6469, 3 CFR, 1965 Supp.; 5 CFR 735.104.
Source: 33 FR 5765, Apr. 13, 1968, unless otherwise noted.
Subpart A_General
Sec. 1400.735-3 Advice and counseling service.
The Director will designate a counselor for the Service on all
matters relating to the conduct and responsibilities of employees, and
special Government employees, under the Executive order. The counselor
is responsible for providing individual employees with interpretations
on questions of conflicts of interest, and other matters covered by this
part. (Due to the small size of the Federal Mediation and Conciliation
Service, it is unrealistic to designate deputy counselors, and
therefore, all questions concerning matters covered in this part should
be directed to the one counselor appointed by the Director.)
Subpart B_Employees: Ethical and Other Conduct and Responsibilities
Sec. 1400.735-12 Outside employment, business activities, or interests (paid or unpaid).
(a) Outside employment. (1) An employee shall not engage in outside
employment or other outside activity not compatible with the full and
proper discharge of the duties and responsibilities of his Government
employment.
(2) Outside employment limitations in paragraph (a)(1) of this
section do not preclude an employee from:
(i) Receipt of a bona fide reimbursement, unless prohibited by law,
for actual expenses for travel and such other necessary subsistence as
is compatible with this part for which no Government payment or
reimbursement is made. However, this paragraph does not allow an
employee to be reimbursed, or payment to be made on his behalf, for
excessive personal living expenses, gifts, entertainment, or other
personal benefits, nor does it allow an employee to be reimbursed by a
person for travel on official business under agency order.
(ii) Participation in the acitivities of national or State political
parties not prohibited by law.
(iii) Participation in the affairs of, or acceptance of an award for
a meritorious public contribution or achievement given by a charitable,
religious, professional, social, fraternal, nonprofit educational and
recreational, public service, or civic organization.
(3) Incompatible activities referred to in paragraph (a)(1) of this
section include, but are not limited to:
(i) Acceptance of a fee, compensation, gift, payment of expense, or
any other thing of monetary value in circumstances in which acceptance
may result in, or create the appearance of, conflicts of interests; or
(ii) Outside employment if it is determined that engaging in the
proposed outside activity might:
(a) Influence or conflict with the employee's decisions or actions
in planning, interpreting, or executing policies, programs, and work
assignments of the Service;
[[Page 34]]
(b) Injure relations of the Service with the public;
(c) Impair the employee's physical capacity to render proper and
efficient service at all times;
(d) Interfere with the impartial performance or jeopardize
acceptability of the employee in his work;
(e) Conflict with the employee's normal office hours, including an
allowance for sufficient time for travel to place of outside employment
or activity. (Normal office hours will be considered as those which are
established for the specific office in which the employee works.) In the
absence of extenuating circumstances, approval generally will not be
granted where the outside activity requires presence of the employee
prior to 6 p.m.
Note: Teaching activities are not approved automatically, but rather
on the basis of time required, appropriate subject matter, etc.
(4) The Service, as a matter of policy, does not look upon any
outside employment or business activity, including concurrent employment
by the Federal Mediation and Conciliation Service and any other
Governmental political subdivision or agency, as being consistent with
the best interests of the Service.
(5) Employees may not engage in any outside employment, including
teaching, lecturing, or writing, which might reasonably result in a
conflict of interest, or an apparent conflict of interest, between the
private interests of the employee and his official government duties and
responsibilities. No employee shall directly or indirectly accept,
engage in, or continue in any outside employment or business activity,
full- or part-time, paid or unpaid, without advance written approval
(including teaching or lecturing).
(b) Private compensation. An employee shall not receive any salary
or anything of monetary value from a private source as compensation for
his services to the Government (18 U.S.C. 209).
(c) Teaching, writing and lecturing. (1) Teaching, writing and
lecturing by Federal employees are generally to be encouraged so long as
the laws, general standards, and regulations pertaining to conflicts of
interest and the standards and regulations in this part applying to
outside employment are observed. Teaching commitments will generally be
limited to one class, course, or assignment during a concurrent period.
These activities frequently serve to enhance the employee's value to the
Service, as well as to increase the spread of knowledge and information
in our society. Such activities, if remuneration is anticipated, must
not be dependent on information obtained as a result of the employee's
official government position if such information is not available to
others, at least on request.
(2) This provision does not, of course, prevent the Director from
authorizing an employee to base his writings or lectures on nonpublic
materials in the Federal Mediation and Conciliation Service files (not
involving national security) when this will be done in the public
interest. Personal research relating to mediation, collective bargaining
and labor management relations is encouraged as a progressive step in
self-development. The writing of articles in this area, which may be
released or submitted for publication, is also encouraged. Research and
writing are not considered official activity, and therefore may not be
undertaken on duty time; and the author may receive compensation for
publication thereof. Advance approval by the Director, before
undertaking the research or writing, is not required. However, when such
research is undertaken, or such article is being written on the basis of
an official assignment, the work will be performed on duty time and the
product will be the property of the Service.
(3) If any type of article, when published or released, will
identify the author in any manner as an employee of the Service, such
identification necessarily implies that the article reflects either the
official policy or the philosophies of the Service. For that reason, it
must be submitted to the Director before release or publication, or it
must contain a disclaimer phrase to the effect that the article or
statement does not necessarily reflect the official policy or
philosophies of the Service.
(d) Procedure for approval of outside employment or teaching.
Clerical and administrative employees' approval for outside activity
shall be in writing and
[[Page 35]]
may be granted by the Regional Director, if a regional employee, or by
the Director of Administrative Management, if a national office
employee. Approval for such outside activity for all other employees of
the Service shall be granted by the Director or his designee. Requests
for approval shall be made in writing through the employee's supervisor
and must contain the following:
(1) The name and address of the employer or business activity;
(2) The exact nature of the work or employment;
(3) Working hours.
[33 FR 5765, Apr. 13, 1968, as amended at 58 FR 35377, July 1, 1993]
Sec. 1400.735-19 Influencing Members of Congress.
No money appropriated to the Service shall be used by any employee
of the Service to pay for any personal service, printed or written
matter, or other devices intended to influence any Member of Congress
regarding any legislation or appropriation before the Congress.
Sec. 1400.735-20 Code of Professional Conduct for Labor Mediators.
In 1964, a Code of Professional Conduct for Labor Mediators was
drafted by a Federal-State Liaison Committee and approved by the Service
and the Association of Labor Mediation Agencies at its annual meeting.
It is expected that mediators in the Federal Mediation and Conciliation
Service will make themselves familiar with this Code and will conduct
themselves in accordance with the responsibilities outlined therein. The
complete narrative of the Code appears in the appendix to this part.
Sec. 1400.735-21 Miscellaneous statutory provisions.
Each employee shall acquaint himself with the statutes that relate
to his ethical and other conduct as an employee of the Federal Mediation
and Conciliation Service and of the Government. The attention of all
employees is directed to the following statutory provisions and to the
accompanying chart of penalties and statutory references:
(a) House Concurrent Resolution 175, 85th Congress, 2d session, 72
Stat. B12, the ``Code of Ethics for Government Service.''
(b) Chapter 11 of title 18, United States Code, relating to bribery,
graft, and conflicts of interest, as appropriate to the employees
concerned.
(c) The prohibition against lobbying with appropriated funds (18
U.S.C. 1913).
(d) The prohibitions against disloyalty and striking (5 U.S.C. 7311,
18 U.S.C. 1918).
(e) The prohibition against the employment of a member of a
Communist organization (50 U.S.C. 784).
(f) The prohibitions against (1) the disclosure of classified
information (18 U.S.C. 798, 50 U.S.C. 783); and (2) the disclosure of
confidential information (18 U.S.C. 1905).
(g) The provisions relating to the habitual use of intoxicants to
excess (5 U.S.C. 7352).
(h) The prohibition against the misuse of a Government vehicle (31
U.S.C. 638a (c)).
(i) The prohibition against the misuse of the franking privilege (18
U.S.C. 1719).
(j) The prohibition against the use of deceit in an examination of
personnel action in connection with Government employment (18 U.S.C.
1917).
(k) The prohibition against fraud or false statements in a
Government matter (18 U.S.C. 1001).
(l) The prohibition against mutilating or destroying a public record
(18 U.S.C. 2071).
(m) The prohibition against counterfeiting and forging
transportation requests (18 U.S.C. 508).
(n) The prohibitions against (1) embezzlement of Government money or
property (18 U.S.C. 641); (2) failing to account for public money (18
U.S.C. 643); and (3) embezzlement of the money or property of another
person in the possession of an employee by reason of his employment (18
U.S.C. 654).
(o) The prohibition against unauthorized use of documents relating
to claims from or by the Government (18 U.S.C. 285).
(p) The prohibitions against political activities in subchapter III
of chapter
[[Page 36]]
73 of title 5, United States Code and 18 U.S.C. 602, 603, 607, and 608.
(q) The prohibition against an employee acting as the agent of a
foreign principal registered under the Foreign Agents Registration Act
(18 U.S.C. 219).
(r) Penalties: The following table, copied from the Federal
Personnel Manual, lists maximum penalties for some of the more serious
offenses.
------------------------------------------------------------------------
Statute and
Prohibition United States Maximum penalty
Code
------------------------------------------------------------------------
A-1. Gifts to official 5 U.S.C. 7351.... Removal.
superiors.
A-2. Conflicts of interest:
a. Receiving compensation in 18 U.S.C. 203.... $10,000 fine; 2 years
relation to claims imprisonment or
contracts, etc. both; and removal.
b. Prosecuting claims 18 U.S.C. 205.... $10,000 fine; 2 years
against and other matters imprisonment or
affecting the Government. both.
c. Prosecuting claims 18 U.S.C. 207.... $10,000 fine; 2 years
involving matters connected imprisonment or
with former duties-- both.
disqualification of
partners.
d. Interested persons acting 18 U.S.C. 208.... $10,000 fine; 2 years
as Government agents. imprisonment or
both.
e. Salaries from other than 18 U.S.C. 209.... $5,000 fine; 1 year
Government sources. imprisonment or
both.
A-3. Lobbying with 18 U.S.C. 1913... $500 fine; 1 year
appropriated funds. imprisonment or
both; and removal.
A-4. Denial of rights to 5 U.S.C. 7102.... No specific penalty
petition Congress. provided.
A-5. Failure to make return or 18 U.S.C. 2075... $1,000 fine.
report.
A-6. Disloyalty and striking.. 5 U.S.C. 7311; 18 $1,000 fine, 1 year
U.S.C. 1918. and a day
imprisonment or
both; and removal.
A-7. Employment of member of 50 U.S.C. 784 et $10,000 fine; 5 years
proscribed communist seq. imprisonment or
organization. both; and removal.
A-8. Disclosure of classified 18 U.S.C. 798; 50 $10,000 fine; 10
information. U.S.C. 783. years imprisonment
or both; and
removal.
A-9. Disclosure of 18 U.S.C. 1905... $1,000 fine; 1 year
confidential information. imprisonment or
both; and removal.
A-10. Habitual use of 5 U.S.C. 7352.... Removal.
intoxicants to excess.
A-11. Misuse of Government 31 U.S.C. 638a(c) Removal.
vehicles.
A-12. Misuse of franking 18 U.S.C. 1719... $300 fine.
privilege.
A-13. Deceit in examinations 5 U.S.C. 1917.... $1,000 fine; 1 year
and personnel actions. imprisonment or
both.
A-14. Fraud and false 18 U.S.C. 1001... $10,000 fine; 5 years
statements. imprisonment or
both.
A-15. Unlawful mutilating or 18 U.S.C. 2071(b) $2,000 fine; 3 years
destroying public records. imprisonment or
both; and removal.
A-16. Bribery and graft:
a. Bribery of public 18 U.S.C. 201.... $20,000 fine or three
officials. times the money or
thing received,
whichever is
greater; 15 years
imprisonment or
both; and removal.
b. Acceptance or 18 U.S.C. 211.... $1,000 fine; 1 year
solicitation to obtain imprisonment or
appointive office. both.
A-17. Counterfeiting and 18 U.S.C. 508.... $5,000 fine; 10 years
forgery of transportation imprisonment or
requests. both.
A-18. Embezzlement and theft:
a. Taking money, property, 18 U.S.C. 641.... $10,000 fine; 10
or records. years imprisonment
or both.
b. Failure to render 18 U.S.C. 643.... Fine equal to amount
accounts for public money. embezzled;
imprisonment not
more than 10 years
or both.
c. Wrongfully converting 18 U.S.C. 654.... Same as penalty
property of another. immediately above.
A-19. Taking or using papers 18 U.S.C. 285.... $5,000 fine; 5 years
related to claims. imprisonment or
both.
------------------------------------------------------------------------
Subpart F_Disciplinary Actions and Penalties
Sec. 1400.735-60 Disciplinary actions.
The Service shall take prompt disciplinary action against an
employee committing prohibited activity, or whose conduct is prejudicial
to the best interests of the Service, or of a nature to bring discredit
to it. There are four major types of disciplinary action possible,
following the above proceedings.
(a) Reprimand. An official reprimand usually shall be issued to an
employee or special Government employee for a first offense which is not
serious.
(b) Suspension. Under Civil Service and Federal Mediation and
Conciliation Service regulations, an employee or special Government
employee may
[[Page 37]]
be suspended without pay during the course of an investigation of
alleged criminal, infamous, dishonest, immoral, or notoriously
disgraceful conduct. Also, an employee may be suspended without pay for
a definite period of time because of some offense of a less serious
nature for which more drastic action is not justified.
(c) Demotion. When such action will ``promote the efficiency of the
Service,'' an employee or special Government employee may be demoted
because of some offense for which more drastic action is not justified.
(d) Separation. The Service is responsible for the prompt dismissal
of unsatisfactory, incompetent, or unfit employees. Separation
(dismissal or removal) can be the penalty for a single breach of conduct
that is extremely serious in nature.
Sec. 1400.735-61 Notice to and appeal of employee.
The Director of Administrative Management will prepare charges and
institute proceedings, which in all cases will be in accordance with
Civil Service procedures for disciplinary actions against status
employees. Such proceedings will include notification to the employee of
his appeal rights.
Sec. Appendix to Part 1400--Code of Professional Conduct for Labor
Mediators
preamble
The practice of mediation is a profession with ethical
responsibilities and duties. Those who engage in the practice of
mediation must be dedicated to the principles of free and responsible
collective bargaining. They must be aware that their duties and
obligations relate to the parties who engage in collective bargaining,
to every other mediator, to the agencies which administer the practice
of mediation, and to the general public.
Recognition is given to the varying statutory duties and
responsibilities of the city, State and Federal agencies. This code,
however, is not intended in any way to define or adjust any of these
duties and responsibilities, nor is it intended to define when and in
what situations mediators from more than one agency should participate.
It is, rather, a personal code relating to the conduct of the individual
mediator.
This code is intended to establish principles applicable to all
professional mediators employed by city, State or Federal agencies or to
mediators privately retained by parties.
I. The responsibility of the mediator to the parties. The primary
responsibility for the resolution of a labor dispute rests upon the
parties themselves. The mediator at all times should recognize that the
agreements reached in collective bargaining are voluntarily made by the
parties. It is the mediator's responsibility to assist the parties in
reaching a settlement.
It is desirable that agreement be reached by collective bargaining
without mediation assistance. However, public policy and applicable
statutes recognize that mediation is the appropriate form of
governmental participation in cases where it is required. Whether and
when a mediator should intercede will normally be influenced by the
desires of the parties. Intercession by a mediator on his own motion
should be limited to exceptional cases.
The mediator must not consider himself limited to keeping peace at
the bargaining table. His role should be one of being a resource upon
which the parties may draw and, when appropriate, he should be prepared
to provide both procedural and substantive suggestions and alternatives
which will assist the parties in successful negotiations.
Since mediation is essentially a voluntary process, the
acceptability of the mediator by the parties as a person of integrity,
objectivity, and fairness is absolutely essential to the effective
performance of the duties of the mediator. The manner in which the
mediator carries out his professional duties and responsibilities will
measure his usefulness as a mediator. The quality of his character as
well as his intellectual, emotional, social and technical attributes
will reveal themselves by the conduct of the mediator and his oral and
written communications with the parties, other mediators and the public.
II. The responsibility of the mediator toward other mediators. A
mediator should not enter any dispute which is being mediated by another
mediator or mediators without first conferring with the person or
persons conducting such mediation. The mediator should not intercede in
a dispute merely because another mediator may also be participating.
Conversely, it should not be assumed that the lack of mediation
participation by one mediator indicates a need for participation by
another mediator.
In those situations where more than one mediator is participating in
a particular case, each mediator has a responsibility to keep the others
informed of developments which are essential to a cooperative effort,
and should extend every possible courtesy to his fellow mediator.
The mediator should carefully avoid any appearance of disagreement
with or criticism of his fellow mediator. Discussions as
[[Page 38]]
to what positions and actions mediators should take in particular cases
should be carried on solely between or among the mediators.
III. The responsibility of the mediator toward his agency and his
profession. Agencies responsible for providing mediation assistance to
parties engaged in collective bargaining are a part of government. The
mediator must recognize that, as such, he is part of government. The
mediator should constantly bear in mind that he and his work are not
judged solely on an individual basis but that he is also judged as a
representative of his agency. Any improper conduct or professional
shortcoming, therefore, reflects not only on the individual mediator but
upon his employer and, as such, jeopardizes the effectiveness of his
agency, other government agencies, and the acceptability of the
mediation process.
The mediator should not use his position for private gain or
advantage, nor should he engage in any employment, activity or
enterprise which will conflict with his work as a mediator, nor should
he accept any money or thing of value for the performance of his
duties--other than his regular salary--or incur obligations to any party
which might interfere with the impartial performance of his duties.
IV. The responsibility of the mediator toward the public. Collective
bargaining is in essence a private, voluntary process. The primary
purpose of mediation is to assist the parties to achieve a settlement.
Such assistance does not abrogate the rights of the parties to resort to
economic and legal sanctions. However, the mediation process may include
a responsibility to assert the interest of the public that a particular
dispute be settled; that a work stoppage be ended; and that normal
operations be resumed. It should be understood, however, that the
mediator does not regulate or control any of the content of a collective
bargaining agreement.
It is conceivable that a mediator might find it necessary to
withdraw from a negotiation, if it is patently clear that the parties
intend to use his presence as implied governmental sanction for an
agreement obviously contrary to public policy.
It is recognized that labor disputes are settled at the bargaining
table; however, the mediator may release appropriate information with
due regard (1) to the desires of the parties, (2) to whether that
information will assist or impede the settlement of the dispute and (3)
to the needs of an informed public.
Publicity shall not be used by a mediator to enhance his own
position or that of his agency. Where two or more mediators are
mediating a dispute, public information should be handled through a
mutually agreeable procedure.
V. Responsibility of the mediator toward the mediation process.
Collective bargaining is an established institution in our economic way
of life. The practice of mediation required the development of
alternatives which the parties will voluntarily accept as a basis for
settling their problems. Improper pressures which jeopardize voluntary
action by the parties should not be a part of mediation.
Since the status, experience, and ability of the mediator lend
weight to his suggestions and recommendations, he should evaluate
carefully the effect of his suggestions and recommendations and accept
full responsibility for their honesty and merit.
The mediator has a continuing responsibility to study industrial
relations to improve his skills and upgrade his abilities.
Suggestions by individual mediators or agencies to parties, which
give the implication that transfer of a case from one mediation
``forum'' to another will produce better results, are unprofessional and
are to be condemned.
Confidential information acquired by the mediator should not be
disclosed to others for any purpose, or in a legal proceeding or be used
directly or indirectly for the personal benefit or profit of the
mediator.
Bargaining positions, proposals or suggestions given to the mediator
in confidence during the course of bargaining for his sole information,
should not be disclosed to another party without first securing
permission from the party or person who gave it to him.
[31 FR 5423, Apr. 6, 1966]
PART 1401_PUBLIC INFORMATION--Table of Contents
Subpart A_Information in Response to Subpoenas
Sec.
1401.1 Purpose and scope.
1401.2 Productions of records or testimony by FMCS employees.
1401.3 Procedure in the event of a demand for production, disclosure, or
testimony.
Subpart B_Production or Disclosure of Information
1401.20 Purpose and scope.
1401.21 Information policy.
1401.22 Partial disclosure of records.
1401.23 Preparation of new records.
1401.24 Notices of dispute are public.
1401.30 Applicability of procedures.
1401.31 Filing a request for records.
1401.32 Logging of written requests.
1401.33 Description of information requested.
1401.34 Time for processing requests.
1401.35 Appeals from denials of request.
1401.36 Freedom of Information Act fee schedules.
1401.37 Annual report.
[[Page 39]]
Authority: Sec. 202, 61 Stat. 136, as amended; 5 U.S.C. 552.
Source: 40 FR 8169, Feb. 26, 1975, unless otherwise noted.
Subpart A_Information in Response to Subpoenas
Sec. 1401.1 Purpose and scope.
This subpart contains the regulations of the Service concerning
procedures to be followed when a subpoena, order, or other demand of a
court or other authority is issued for the production or disclosure of
(a) any material contained in the files of the Service; (b) any
information relating to material contained in the files of the Service;
or (c) any information or material acquired by any person as a part of
the performance of his official duties or because of his official
status, while such person was an employee of the Service.
Sec. 1401.2 Production of records or testimony by FMCS employees.
(a) Public policy and the successful effectuation of the Federal
Mediation and Conciliation Service's mission require that commissioners
and employees maintain a reputation for impartiality and integrity.
Labor and management or other interested parties participating in
mediation efforts must have the assurance and confidence that
information disclosed to commissioners and other employees of the
Service will not subsequently be divulged, voluntarily or because of
compulsion, unless authorized by the Director of the Service.
(b) No officer, employee, or other person officially connected in
any capacity with the Service, currently or formerly shall, in response
to a subpoena, subpoena duces tecum, or other judicial or administrative
order, produce any material contained in the files of the Service,
disclose any information acquired as part of the performance of his
official duties or because of his official status, or testify on behalf
of any party to any matter pending in any judicial, arbitral or
administrative proceeding, without the prior approval of the Director.
Sec. 1401.3 Procedure in the event of a demand for production, disclosure, or testimony.
(a) Any request for records of the Service, whether it be by letter,
by subpoena duces tecum or by any other written demand, shall be handled
pursuant to the procedures established in subpart B of this part, and
shall comply with the rules governing public disclosure.
(b) Whenever any subpoena or subpoena duces tecum calling for
production of records or testimony as described above shall have been
served upon any officer, employee or other person as noted in Sec.
1401.2(b), he will, unless notified otherwise appear in answer thereto,
and unless otherwise expressly directed by the Director, respectfully
decline to produce or present such records or to give such testimony, by
reason of the prohibitions of this section, and shall state that the
production of the record(s) involved will be handled by the procedures
established in this part.
Subpart B_Production or Disclosure of Information
Source: 50 FR 52917, Dec. 27, 1985, unless otherwise noted.
Sec. 1401.20 Purpose and scope.
This subpart contains the regulations of the Federal Mediation and
Conciliation Service providing for public access to information from
records of the Service. These regulations implement the Freedom of
Information Act, 5 U.S.C. 552, and the policy of the FMCS to disseminate
information on matters of interest to the public and to disclose on
request information contained in agency records insofar as is compatible
with the discharge of its responsibilities and the principle of
confidentiality and neutrality of dispute resolution by third party
neutrals.
Sec. 1401.21 Information policy.
(a) Except for matters specifically excluded by subsection 552(b) of
title 5, United States Code, matters covered by the Privacy Act, or
other applicable statutes, all documents and records maintained by this
agency or in its
[[Page 40]]
custody shall be available to the public upon request filed in
accordance with these regulations. To the extent permitted by other
laws, the Service also will make available records which it is
authorized to withhold under 5 U.S.C. 552(b) whenever it determines that
such disclosure is in the public interest.
(b) Any document released for inspection under the provisions of
this part may be manually copied by the requesting party. The Service
shall provide facilities for copying such documents at reasonable times
during normal working hours so long as it does not interfere with the
efficient operation of the agency.
(c) The Service will also publish and maintain a current index,
revised quarterly, providing identifying information for the public as
to statements of policy and interpretation adopted by the agency and
still in force but not published by the Federal Register, and
administrative staff manuals and instructions to staff that affect the
public. The Service will also maintain on file all material published in
the Service in the Federal Register and currently in effect.
(d) Records or documents prepared by the Service for routine public
distribution, e.g., pamphlets, speeches, and educational or training
materials, will be furnished upon request to the Office of Information,
Federal Mediation and Conciliation Service, 2100 K Street, NW.,
Washington, DC 20427, as long as the supply lasts. The provisions of
Sec. 1401.36 (fees) is not applicable to such requests except when the
supply of such material is exhausted and it is necessary to reproduce
individual copies upon specific request.
(e) All existing FMCS records are subject to routine destruction
according to standard record retention schedules.
Sec. 1401.22 Partial disclosure of records.
If a record contains both disclosable and nondisclosable
information, the nondisclosable information will be deleted and the
remaining record will be disclosed unless the two are so inextricably
intertwined that it is not feasible to separate them or release of the
disclosable information would compromise or impinge upon the
nondisclosable portion of the record.
Sec. 1401.23 Preparation of new records.
(a) Freedom of Information Act and the provisions of this part apply
only to existing records that are reasonably described in a request
filed with the Federal Mediation and Conciliation Service pursuant to
the procedures established in Sec. Sec. 1401.31-1401.36.
(b) The Director may, in his or her discretion, prepare new records
in order to respond to a request for information when he or she
concludes that it is in the public interest and promotes the objectives
of the Labor-Management Relations Act, 1947, as amended.
Sec. 1401.24 Notices of dispute are public.
Written notices of disputes received by the Service pursuant to
sections 8(d)(3), 8(d)(A), 8(g) and 9(c)(1) of the Labor-Management
Relations Act, 1947, as amended, or pursuant to 29 CFR 1425.2, are not
exempt from disclosure. Parties at interest have the right to receive
certified copies of any such notice of dispute upon written request.
Requests for copies of notices should be submitted to FMCS, Notice
Processing Unit, 2100 K Street, NW., Washington, DC 20427.
Sec. 1401.30 Applicability of procedures.
Requests for inspection or copying of information from records in
the custody of the FMCS which are reasonably identifiable and available
under the provisions of this part shall be made and acted upon as
provided in the following sections of this subpart. The prescribed
procedure shall be followed in all cases where access is sought to
official records pursuant to the provisions of the Freedom of
Information Act, except with respect to records for which a less formal
disclosure procedure is provided specifically in this part.
Sec. 1401.31 Filing a request for records.
(a) Any person who desires to inspect or copy any record covered by
this part shall submit a written request to that effect to the Legal
Services Office, FMCS, 2100 K Street, NW., Washington, DC 20427. (202)
653-5305.
[[Page 41]]
(b) The Legal Services Office will determine what office or division
within FMCS is custodian of the records. The Office will then send the
request to the appropriate FMCS office or division as provided in Sec.
1401.32(b) of this part.
Sec. 1401.32 Logging of written requests.
(a) All requests for records should be clearly and prominently
identified as a request for information under the Freedom of Information
Act, and if submitted by mail or otherwise submitted in an envelope or
other cover, should be clearly and prominently identified as such on the
envelope or other cover.
(b) Upon receipt of a request for records from the FMCS Legal
Services Office, the FMCS office or division responding to the request
shall enter it in a public log. The log shall state the date and time
received, the name and address of person making the request, the nature
of the records requested, the action taken on the request, the date of
the determination letter sent pursuant to Sec. 1401.34 (b) and (d), the
date(s) any records are subsequently furnished, the number of staff
hours and grade levels of persons who spent time responding to the
request, and the payment requested and received.
Sec. 1401.33 Description of information requested.
(a) Each request should reasonably describe the records being
sought, in a way that they can be identified and located. A request
should include all pertinent details that will help identify the records
sought.
(b) If the description is insufficient, the officer processing the
request will so notify the person making the request and indicate the
additional information needed. Every reasonable effort shall be made to
assist in the identification and location of the records sought.
Sec. 1401.34 Time for processing requests.
(a) All time limitations established pursuant to this section shall
begin as of the time at which a request for records is logged in by the
officer or employee processing the request pursuant to Sec. 1401.32(b).
An oral request for records shall not begin any time requirement. A
written request for records sent to an office or division of FMCS other
than the one having authority to grant or deny access to the records
shall be redirected to the appropriate office for processing, and the
time shall begin upon its being logged in there in accordance with Sec.
1401.32(b).
(b) The officer or employee passing upon the request for records
shall, within ten (10) working days following receipt of the request,
respond in writing to the requester, determining whether, or the extent
to which, the Agency shall comply with the request.
(1) If all of the records requested have been located and a final
determination has been made with respect to disclosure of all the
records requested, the response shall so state.
(2) If all of the records have not been located or a final
determination has not been made with respect to disclosure of all
records requested, the response shall state the extent to which the
records involved will be disclosed pursuant to the rules established in
this part.
(3) If the request is expected to involve an assessed fee in excess
of $50.00, the response shall specify or estimate the fee involved and
shall require prepayment before the records are made available.
(4) Whenever possible, the response relating to a request for
records that involves a fee of less than $50.00, shall be accompanied by
the requested records. Where this is not possible, the records shall be
forwarded as soon as possible thereafter, consistent with other
obligations of the Agency.
(c) In the following circumstances, the time for passing upon the
request may be extended for up to an additional 10 working days by
written notice to the person making the request, setting forth the
reasons for such extension and the time within which a determination is
expected to be made:
(1) The need to search for and collect the requested records from
the field facilities or other establishments that are separate from the
office processing the request;
(2) The need to search for, collect and appropriately examine a
voluminous amount of records which are demanded in a single request; or
[[Page 42]]
(3) The need for consultation, which shall be conducted with all
practicable speed, with another agency having a substantial interest in
the determination of the request or among two or more components of the
Agency having substantial subject matter interest therein.
(b) If any request for records is denied in whole or in part, the
response required by paragraph (b) of this section shall notify the
requester of the denial. Such denial shall specify the reason therefor
and also advise that the denial may be appealed to the Office of Deputy
Director of the Agency as specified in Sec. 1401.35.
Sec. 1401.35 Appeals from denials of request.
(a) Whenever any request for records is denied, a written appeal may
be filed with the Deputy Director, FMCS, 2100 K Street, NW., Washington,
DC 20427, within 30 days after requester receives notification that the
request has been denied or after the requester receives any records
being made available, in the event of partial denial. The appeal shall
state the grounds for appeal, including any supporting statements or
arguments.
(b) Final action on the appeal shall be taken within 20 working days
from the time of receipt of the appeal. Where novel and complicated
questions have been raised or unusual difficulties have been
encountered, the Deputy Director may extend the time for final action up
to an additional 10 days, depending upon whether there had been an
extension pursuant to Sec. 1401.34(c) at the initial stage. In such
cases, the applicant shall be notified in writing of the reasons for the
extension of time and the approximate date on which a final response
will be forthcoming.
(c) If on appeal the denial of the request for records is upheld in
whole or in part, the Deputy Director shall notify the applicant of the
reasons therefor, and shall advise the requester of the provisions for
judicial review under 5 U.S.C. 552(a) (4) and (6).
Sec. 1401.36 Freedom of Information Act fee schedules.
(a) Definitions. For purposes of Sec. 1401.36, the following
definitions apply:
(1) Direct costs means those expenditures which are actually
incurred in searching for and duplicating and, in the case of commercial
use requesters, reviewing to respond to a FOIA request.
(2) Search includes all time spent looking for material that is
responsive to a request, including page-by-page and line-by-line
identification of material within documents. Searches may be done
manually or by computer.
(3) Duplication refers to the process of making a copy of a document
necessary to respond to a FOIA request. Copies may be in various forms
including machine readable documentation (e.g. magnetic tape or disk)
among others. The copy provided shall be in a form that is reasonably
usable by the requester.
(4) Review refers to the process of examining documents located in
response to a request that is for commercial use, to determine whether a
document or any portion of any document located is permitted to be
withheld. It includes processing any documents for disclosure to the
requester, e.g., doing all that is necessary to excise them or otherwise
prepare them for release.
(5) Commercial use request refers to a request from or on behalf of
one who seeks information for a use or purpose that furthers the
commercial trade or profit interest of the requester or the person on
whose behalf the request is made.
(6) Educational institution refers to a preschool, a public or
private elementary or secondary school, an institution of undergraduate
higher education, an institution of graduate or professional education
or an institution of vocational education, which operates a program or
programs of scholarly research.
(7) Representative of the news media refers to any person actively
gathering news for an entity that is organized and operated to publish
or broadcast news to the public. The term ``news'' means information
that is about current events or that would be of current
[[Page 43]]
interest to the public. In the case of ``freelance'' journalists, they
may be regarded as working for a news organization if they can
demonstrate a reasonable expectation of publication through the
organization, even though not actually employed by it.
(8) Non-commercial scientific institution refers to an institution
that is not operated on a commercial basis as defined under ``commercial
use request'' in paragraph (a)(5) of this section, and which is operated
solely for the purpose of conducting scientific research, the results of
which are not intended to promote any particular product or industry.
(b) Fee schedules and waivers. Requests submitted shall be subject
to direct costs, including search, duplication and review, in accordance
with the following schedules, procedures and conditions.
(1) Schedule of charges--(i) Clerical time. For each one-quarter
hour or portion thereof of clerical time, $2.25.
(ii) Professional time. For each one-quarter hour or portion thereof
of professional time, $7.00.
(iii) Duplication. For each sheet of duplication (not to exceed 8\1/
2\ by 14 inches) of requested records, $.20.
(iv) Computer time. For computer time, $3.00 per minute of time
expended for production programming, searching and production of any
record. Computer time expressed in fractions of minutes will be rounded
to the next whole minute.
(v) Certification or authorization of records. The fee per
certification or authentication is $2.00.
(vi) Forwarding material to destination. No charge will be assessed
for ordinary packaging and mailing costs. The FMCS may assess a charge
if compliance with the request requires special handling procedures such
as express mail or other unusual procedures. Such charges will be made
on the basis of actual costs.
(vii) Other costs. All other direct costs of preparing a response to
a request shall be charged to requester in the same amount as incurred
by FMCS. Charges may also be assessed for searches even if the records
requested are not found, or the records are determined to be exempted
from disclosure.
(2) Rules of construction. (i) In providing the foregoing the
schedules pursuant to the provisions of 5 U.S.C. 552(a)(4)(A), it is the
intent of FMCS to apply 29 CFR part 70 and the user charge statute, 31,
U.S.C. 9701, to cover those situations in which the Agency is performing
for a requester services which are not required under the Freedom of
Information Act.
(ii) For those matters coming within the scope of this regulation,
the FMCS will look to the provisions of the guidance published by the
Office of Management and Budget (52 FR 10012, March 27, 1987) and the
Department of Justice (Attorney General's memorandum on the 1986
Amendments to the Freedom of Information Act, December 1987) for making
such interpretations as may be necessary.
(3) Fee categories. Fees shall be determined in accordance with the
following categories of requesters.
(i) Commercial use requesters will be assessed charges to recover
the full direct cost of searching for, reviewing for release, and
duplicating the records sought. This includes the full direct costs of
computer production programming, searching and production of records.
Commercial use requesters are not entitled to 2 hours of free search
time nor 100 free pages of reproduction of documents, as described
below.
(ii) Educational and non-commercial scientific institution
requesters will be assessed charges for the cost of duplication alone,
excluding charges for the first 100 pages. To be eligible for inclusion
in this category, requesters must show that the request is being made
under the auspices of a qualifying institution pursuant to the criteria
in paragraphs (a)(6) and (a)(8) of this section, and that the records
are not sought for commercial use, but are sought in furtherance of
scholarly or scientific research.
(iii) Requesters who are representatives of the news media will be
assessed charges for the cost of duplication alone, excluding charges
for the first 100 pages. To be eligible for inclusion in this category,
a requester must meet the criteria in paragraph (a)(7) of this section,
and the request must not be made for a commercial use. A request
[[Page 44]]
for records supporting the news dissemination function of the requester
shall not be considered to be a request that is for commercial use.
(iv) All other requesters will be assessed charges to recover the
full reasonable direct costs of searching for and reproducing records
that are responsive to the request, including costs of computer
production programming, searching and production, except that the first
100 pages of reproduction, and the first 2 hours of search time shall be
furnished without charge.
(v) In no event shall fees be charged when the total charges are
less than $50.00, which is the Agency cost of collecting and processing
the fee itself.
(4) Waiver or reduction of charge. Documents are to be furnished
without charge or at reduced levels if disclosure of the information is
in the public interest; that is, because it is likely to contribute
significantly to public understanding of the operations or activities of
the Government and is not primarily in the commercial interest of the
requester.
(c) Fee payments. (1) Payments shall be made by check or money order
payable to ``Federal Mediation and Conciliation Service'' and shall be
sent to: Director, Financial Management Staff, Federal Mediation and
Conciliation Service, 2100 K Street NW., Washington, DC 20427.
(2) If a requester fails to pay chargeable fees that were incurred
as a result of this Agency's processing of the information request, the
Agency beginning on the 31st day following the date on which the
notification of charges was sent, may assess interest charges against
the requester in the manner prescribed in 31 U.S.C. 37l7.
(3) The Agency may use the provisions of the Debt Collection Act of
1982, (Pub. L. 97-365, 29 CFR part 1450) including disclosure to
consumer reporting agencies, for the purpose of obtaining payment.
(d) Advance payments. FMCS may require a requester to make an
advance payment of anticipated fees under the following circumstances:
(1) If the anticipated charges are likely to exceed $250, FMCS may
notify the requestor of the likely cost and obtain satisfactory
assurance of full payment when the requester has a history of prompt
payment of FOIA fees, or require an advance payment of an amount up to
the full estimated charges in the case of requesters with no history of
payments.
(2) If a requester has previously failed to pay fees that have been
charged in processing a request, within 30 days of the date when the
notification of fees was sent, the requester may be required to:
(i) Pay the entire amount of fees that are owed, plus any applicable
interest as provided for in paragraph (c)(2) of this section, and
(ii) To make an advance payment of the full amount of the estimated
fee before the Agency will process the new pending request.
[55 FR 17602, Apr. 26, 1990]
Sec. 1401.37 Annual report.
The Office of the Director shall annually, within 60 days following
the close of each calendar year, prepare a report covering each of the
categories or records to be maintained in accordance with 5 U.S.C.
552(d) for such calendar year and shall forthwith submit the same to the
Speaker of the House of Representatives and the President of the Senate
for referral to the appropriate committees of the Congress.
PART 1402_PROCEDURES OF THE SERVICE--Table of Contents
Authority: Sec. 202, 61 Stat. 153, sec. 3, 80 Stat. 250, sec. 203,
61 Stat. 153; 5 U.S.C. 552, 29 U.S.C. 172, 173.
Sec. 1402.1 Notice of dispute.
The notice of dispute filed with the Federal Mediation and
Conciliation Service pursuant to the provisions of section 8(d)(3), of
the Labor-Management Relations Act, 1947, as amended, shall be in
writing. The following Form F-7, for use by the parties in filing a
notice of dispute, has been prepared by the Service:
FMCS Form F-7.
Revised May 1964.
Notice to Mediation Agencies
To: Federal Mediation and Conciliation Service, Washington, D.C. 20427;
and
[[Page 45]]
To: (Appropriate State or Territorial agency.)
Date --------------------
You are hereby notified that written notice of the proposed
termination or modification of the existing collective bargaining
contract was served upon the other party to this contract and that no
agreement has been reached.
1. (a) Name of employer (if more than one company or an association,
submit names and addresses on separate sheet in duplicate). Phone No. --
----------
Address of establishment affected (Street) (City) (State) (Zip
Code).
(If more than one establishment, or plant, list addresses on
separate sheet.)
(b) Employer Official to communicate with (name and title).
Address: Phone No. --------.
---------------- (Street), ---------------- (City), ----------------
(State).
2. (a) International union ---------------- Local No. ------. AFL-
CIO ( ). Independent ( ). Phone No. ------. Address of local union:
---------------- (Street), ---------------- (City), ----------------
(State), -------- (Zip Code).
(b) Union official to communicate with --------------------. Phone
No. ----------.
Address:
---------------- (Street), ---------------- (City), ----------------
(State), -------- (Zip Code).
3. (a) Number of employees covered by the Contract(s) ------.
(b) Total number employed by the Company at this location(s) ------.
4. Type of establishment and principal products, or services ------
---------------- (Factory, mine, wholesaler, over-the-road trucking,
etc.).
5. Contract expiration or reopening date ------------.
6. Name of official filing this notice --------------------. Title
----------------.
Address ------------------------ Phone No. --------.
Check on whose behalf this notice is filed:
Union ------------. Employer ------------
Signature --------------------------------
Receipt of this notice does not constitute a request for mediation
nor does it commit the agencies to offer their facilities. This
particular form of notice is not legally required. Receipt of notice
will not be acknowledged in writing by the Federal Mediation and
Conciliation Service. (Attach copies of any statement you wish to make
to the Mediation Agencies.)
Copies of this Form F-7 are obtainable at the national, regional and
field offices of the Service. This form may be duplicated for use by
representatives of employers or unions provided it is copied in full
without change.
[32 FR 9812, July 6, 1967, as amended at 47 FR 10531, Mar. 11, 1982]
PART 1403_FUNCTIONS AND DUTIES--Table of Contents
Sec.
1403.1 Definitions.
1403.2 Policies of the Federal Mediation and Conciliation Service.
1403.3 Obtaining data on labor-management disputes.
1403.4 Assignment of mediators.
1403.5 Relations with State and local mediation agencies.
Authority: Sec. 202, 61 Stat. 153, sec. 3, 80 Stat. 250, sec. 203,
61 Stat. 153; 29 U.S.C. 172, 5 U.S.C. 552, 29 U.S.C. 173.
Source: 32 FR 9813, July 6, 1967, unless otherwise noted.
Sec. 1403.1 Definitions.
As used in this part, unless the context clearly indicates
otherwise;
(a) The term commerce means trade, traffic, commerce,
transportation, or communication among the several States, or between
the District of Columbia or any Territory of the United States and any
State or other Territory, or between any foreign country and any State,
Territory, or the District of Columbia, or within the District of
Columbia, or any Territory, or between points in the same State but
through any other State or any Territory or the District of Columbia or
any foreign country.
(b) The term affecting commerce means in commerce, or burdening or
obstructing commerce or the free flow of commerce, or having led or
tending to lead to a labor-management dispute burdening or obstructing
commerce or the free flow of commerce.
(c) The term labor union or labor organization means any
organization of any kind, or any agency or employee representation
committee or plan, in which employees participate and which exists for
the purpose, in whole or in part, of dealing with employers concerning
grievances, labor disputes, wages, rates of pay, hours of employment, or
conditions of work.
(d) The term State or other conciliation services means the official
and accredited mediation and conciliation establishments of State and
local governments, which are wholly or partially supported by public
funds.
[[Page 46]]
(e) The term proffer its services, as applied to the functions and
duties of the Federal Mediation and Conciliation Service, means to make
mediation services and facilities available either on its own motion or
upon the request of one or more of the parties to a dispute.
Sec. 1403.2 Policies of the Federal Mediation and Conciliation Service.
It is the policy of the Federal Mediation and Conciliation Service:
(a) To facilitate and promote the settlement of labor-management
disputes through collective bargaining by encouraging labor and
management to resolve differences through their own resources.
(b) To encourage the States to provide facilities for fostering
better labor-management relations and for resolving disputes.
(c) To proffer its services in labor-management disputes in any
industry affecting commerce, except as to any matter which is subject to
the provisions of the Railway Labor Act, as amended, either upon its own
motion or upon the request of one or more of the parties to the dispute,
whenever in its judgment such dispute threatens to cause a substantial
interruption to commerce.
(d) To refrain from proffering its services:
(1) In labor-management disputes affecting intrastate commerce
exclusively,
(2) In labor-management disputes having a minor effect on interstate
commerce, if State or other conciliation services are available to the
parties, or
(3) In a labor-management dispute when a substantial question of
representation has been raised, or to continue to make its facilities
available when a substantial question of representation is raised during
the negotiations.
(e) To proffer its services in any labor-management dispute directly
involving Government procurement contracts necessary to the national
defense, or in disputes which imperil or threaten to imperil the
national health or safety.
(f) To proffer its services to the parties in grievance disputes
arising over the application or interpretation of an existing
collective-bargaining agreement only as a last resort and in exceptional
cases.
Sec. 1403.3 Obtaining data on labor-management disputes.
When the existence of a labor-management dispute comes to the
attention of the Federal Service upon a request for mediation service
from one or more parties to the dispute, through notification under the
provisions of section 8(d)(3), title I of the Labor-Management Relations
Act, 1947, or otherwise, the Federal Service will examine the
information to determine if the Service should proffer its services
under its policies. If sufficient data on which to base a determination
is not at hand, the Federal Service will inquire into the circumstances
surrounding the case. Such inquiry will be conducted for fact-finding
purposes only and is not to be interpreted as the Federal Service
proffering its services.
Sec. 1403.4 Assignment of mediators.
The Federal Service will assign one or more mediators to each labor-
management dispute in which it has been determined that its services
should proffered.
Sec. 1403.5 Relations with State and local mediation agencies.
(a) If under State or local law a State or local mediation agency
must offer its facilities in a labor-management dispute in which the
Federal Service is proffering its services, the interests of such
agencies will be recognized and their co-operation will be encouraged in
order that all efforts may be made to prevent or to effectively minimize
industrial strife.
(b) If, in a labor-management dispute there is reasonable doubt that
the dispute threatens to cause a substantial interruption to commerce or
that there is more than a minor effect upon interstate commerce, and
State or other conciliation services are available to the parties, the
regional director of the Federal Service will endeavor to work out
suitable arrangements with the
[[Page 47]]
State or other conciliation or mediation agency for mediation of the
dispute. Decisions in such cases will take into consideration the
desires of the parties, the effectiveness and availability of the
respective facilities, and the public welfare, health, and safety.
(c) If requested by a State or local mediation agency or the chief
executive of a State or local government, the Federal Service may make
its services available in a labor-management dispute which would have
only a minor effect upon interstate commerce when, in the judgment of
the Federal Service, the effect of the dispute upon commerce or the
public welfare, health, or safety justifies making available its
mediation facilities.
PART 1404_ARBITRATION SERVICES--Table of Contents
Subpart A_Arbitration Policy; Administration of Roster
Sec.
1404.1 Scope and authority.
1404.2 Policy.
1404.3 Administrative responsibilities.
Subpart B_Roster of Arbitrators; Admission and Retention
1404.4 Roster and status of members.
1404.5 Listing on the roster, criteria for listing and removal,
procedure for removal.
1404.6 Inactive status.
1404.7 Listing fee.
Subpart C_Procedures for Arbitration Services
1404.8 Freedom of choice.
1404.9 Procedures for requesting arbitration lists and panels.
1404.10 Arbitrability.
1404.11 Nominations of arbitrators.
1404.12 Selection by parties and appointments of arbitrators.
1404.13 Conduct of hearings.
1404.14 Decision and award.
1404.15 Fees and charges of arbitrators.
1404.16 Reports and biographical sketches.
Subpart D_Expedited Arbitration
1404.17 Policy.
1404.18 Procedures for requesting expedited panels.
1404.19 Arbitration process.
1404.20 Proper use of expedited arbitration.
Appendix to Part 1404--Arbitration Policy; Schedule of Fees
Authority: 29 U.S.C. 172 and 29 U.S.C. 173 et seq.
Source: 62 FR 34171, June 25, 1997, unless otherwise noted.
Subpart A_Arbitration Policy; Administration of Roster
Sec. 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, 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 which are to be submitted to arbitration or
factfinding.
Sec. 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 factfinding are important features of constructive
employment relations as alternatives to economic strife.
Sec. 1404.3 Administrative responsibilities.
(a) Director. The Director of FMCS has responsibility for all
aspects of FMCS arbitration activities and is the final agency authority
on all questions concerning the Roster and FMCS arbitration procedures.
(b) Office of Arbitration Services. The Office of Arbitration
Services (OAS) maintains a Roster of Arbitrators (the Roster);
administers subpart C of this part (Procedures for Arbitration
Services); assists, promotes, and cooperates in the establishment of
programs for training and developing new arbitrators; and provides names
or panels of names of listed arbitrators to parties requesting them.
(c) Arbitrator Review Board. The Arbitrator Review Board shall
consist of a chairman and members appointed by the Director who shall
serve at the Director's pleasure. The Board shall be
[[Page 48]]
composed entirely of full-time officers or employees of the Federal
Government and shall establish procedures for carrying out its duties.
(1) Duties of the Board. The Board shall:
(i) Review the qualifications of all applicants for listing on the
Roster, interpreting and applying the criteria set forth in Sec.
1404.5;
(ii) Review the status of all persons whose continued eligibility
for listing on the Roster has been questioned under Sec. 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 of FMCS, or upon its own
volition, review arbitration policies and procedures, including all
regulations and written guidance regarding the use of the FMCS
arbitrators, and make recommendations regarding such policies and
procedures to the Director; and
(v) Review the qualifications of all persons who request a review in
anticipation of attending the FMCS-sponsored labor arbitrator training
course, interpreting and applying the criteria set forth in Sec. 1404.5.
(2) [Reserved]
[62 FR 34171, June 25, 1997, as amended at 70 FR 76397, Dec. 27, 2005]
Subpart B_Roster of Arbitrators; Admission and Retention
Sec. 1404.4 Roster and status of members.
(a) The Roster. FMCS shall maintain a Roster of labor arbitrators
consisting of persons who meet the criteria for listing contained in
Sec. 1404.5 and who remain in good standing.
(b) Adherence of Standards and Requirements. Persons listed on the
Roster shall comply with FMCS rules and regulations pertaining to
arbitration and with such guidelines and procedures as may be issued by
the OAS pursuant to subpart C of this Part. Arbitrators shall conform to
the ethical standards and procedures set forth in the Code of
Professional Responsibility for Arbitrators of Labor Management
Disputes, as approved by the National Academy of Arbitrators, Federal
Mediation and Conciliation Service, and the American Arbitration
Association (Code).
(c) Status of arbitrators. Persons who are listed on the Roster and
are selected or appointed to hear arbitration matters or to serve as
factfinders do not become employees of the Federal Government by virtue
of their selection or appointment. Following selection or appointment,
the arbitrator's relationship is solely with the parties to the dispute,
except that arbitrators are subject to certain reporting requirements
and to standards of conduct as set forth in this part.
(d) Role of FMCS. 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;
(5) Compel, deny, or modify payment of compensation to an
arbitrator.
(e) Nominations and Panels. On request of the parties to an
agreement to arbitrate or engage in fact-finding, or where arbitration
or fact-finding may be provided for by statute, OAS will provide names
or panels of names for a fee. Procedures for obtaining these services
are outlined in subpart C of this part. Neither the submission of a
nomination or panel nor the appointment of an arbitrator constitutes a
determination by FMCS that an agreement to arbitrate or enter fact-
finding proceedings exists; nor does such action constitute a ruling
that the matter in controversy is arbitrable under any agreement.
(f) Rights of persons listed on the Roster. No person shall have any
right to be listed or to remain listed on the Roster. FMCS retains its
authority and responsibility to assure that the needs of the parties
using its services are served. To accomplish this purpose, FMCS may
establish procedures for the preparation of panels or the appointment of
arbitrators or factfinders which include consideration of such factors
as background and experience,
[[Page 49]]
availability, acceptability, geographical location, and the expressed
preferences of the parties. FMCS may also establish procedures for the
removal from the Roster of those arbitrators who fail to adhere to
provisions contained in this part.
[62 FR 34171, June 25, 1997, as amended at 70 FR 76397, Dec. 27, 2005]
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 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:
(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;
75 FR 30705, June 2, 2010]
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
[[Page 51]]
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.
[75 FR 30705, June 2, 2010]
Sec. 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
Sec. 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 OAS, all parties are subject to the procedures
contained in this part.
Sec. 1404.9 Procedures for requesting arbitration lists and panels.
(a) The Office of Arbitration Services (OAS) has been delegated the
responsibility for administering all requests for arbitration services.
Requests should be addressed to the Federal Mediation and Conciliation
Service, Office of Arbitration Services, 2100 K Street, NW., Washington,
DC 20427.
(b) The OAS will refer a panel of arbitrators to the parties upon
request. The parties are encouraged to make joint requests. In the
event, however, that the request is made by only one party, the OAS will
submit a panel of arbitrators. However, the issuance of a panel--
pursuant to either joint or 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 the terms of
the parties' contract.
(c) As an alternative to a request for a panel of names, OAS will,
upon written request, submit a list of all 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.
The parties may also request FMCS to make a direct appointment of their
selection. In such a situation, a case number will be assigned.
(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.
(e) The parties are required to use the Request for Arbitration
Panel (Form R-43), which has been prepared by the OAS and is available
upon request to the Federal Mediation and Conciliation Service, Office
of Arbitration Services, Washington, DC 20427, or by calling (202) 606-
5111. Form R-43 is also available on the FMCS Internet Web site, http://
www.fmcs.gov. Requests that do not contain all required information
requested on Form R-43 in typewritten form or legible handwriting may be
rejected.
(f) Parties may submit requests for any standard geographical
arbitration panels electronically by accessing the agency's Internet Web
site, http://www.fmcs.gov, and receive panels via e-mail, fax or mail.
Panel requests that contain certain special requirements may not be
processed via the agency's internet system. Parties must provide all
required information and must pay the cost of such panels using methods
of payment that are accepted by the agency.
(g) The OAS will charge a nominal fee for all requests for lists,
panels, and
[[Page 52]]
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.
(h) The OAS 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.
[62 FR 34171, June 25, 1997, as amended at 70 FR 76398, Dec. 27, 2005;
75 FR 30705, June 2, 2010]
Sec. 1404.10 Arbitrability.
The OAS will not decide the merits of a claim by either party that a
dispute is not subject to arbitration.
Sec. 1404.11 Nominations of arbitrators.
(a) The parties may also report a randomly selected panel containing
the names of seven (7) arbitrators accompanied by a biographical sketch
for each member of the panel. This sketch states the background,
qualifications, experience, and all fees as furnished to the OAS by the
arbitrator. Requests for a panel of seven (7) arbitrators, whether joint
or unilateral, will be honored. Requests for a panel of other than seven
(7) names, for a direct appointment of an arbitrator, for special
qualifications or other service will not be honored unless jointly
submitted or authorized by the applicable collective bargaining
agreement. Alternatively, the parties may request a list and
biographical sketches of some or all arbitrators in one or more
designated geographical areas. If the parties can agree on the selection
of an arbitrator, they may appoint their own arbitrator directly without
any further case tracking by FMCS. No case number will be assigned.
(b) All panels submitted to the parties by the OAS, and all letters
issued by the OAS making a direct appointment, will have an assigned
FMCS case number. All future communications between the parties and the
OAS should refer to this case number.
(c) The OAS will provide a randomly selected panel of arbitrators
located in geographical areas in proximity of the hearing site. The
parties may request special qualification of arbitrators experienced in
certain issues or industries or that possess certain backgrounds. The
OAS has no obligation to put an individual on any given panel or on a
minimum number of panels in any fixed period. In general:
(1) The geographic location of arbitrators placed on panels is
governed by the site of the dispute as stated on the request received by
the OAS.
(2) 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, gender, national origin, disability, or religion.
(d) If the parties do not agree on an arbitrator from the first
panel, the OAS will furnish second and third panels to the parties upon
joint request, or upon a unilateral request if authorized by the
applicable collective bargaining agreement, and payment of additional
fees. Requests for second or third panels should be accompanied by a
brief explanation as to why the previous panel(s) was inadequate. In
addition, if parties are unable to agree on a selection after having
received three panels, the OAS will make a direct appointment upon joint
request.
[62 FR 34171, June 25, 1997, as amended at 70 FR 76399, Dec. 27, 2005]
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
[[Page 53]]
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 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.
[75 FR 30705, June 2, 2010]
Sec. 1404.13 Conduct of hearings.
All proceedings conducted by the arbitrators shall be in conformity
with the contractual obligations of the parties. The arbitrator shall
comply with Sec. 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.
Sec. 1404.14 Decision and award.
(a) Arbitrators shall make awards no later than 60 days from the
date of the closing of the record as determined by the arbitrator,
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.
[[Page 54]]
(b) The parties should inform the OAS whenever a decision is unduly
delayed. The arbitrator shall notify the OAS if and when the arbitrator:
(1) Cannot schedule, hear, and render decisions promptly, or
(2) Learns a dispute has been settled by the parties prior to the
decision.
(c) Within 15 days after an award has been submitted to the parties,
the arbitrator shall submit an Arbitrator's Report and Fee Statement
(Form R-19) to OAS showing a breakdown of the fee and expense charges
for use in the event the OAS decides to review conformance with the
basis for the arbitrator's fees and expenses as stated in the
biographical sketch.
(d) While FMCS encourages the publication of arbitration awards,
arbitrators should not publicize awards if objected to by one of the
parties.
[62 FR 34171, June 25, 1997, as amended at 70 FR 76399, Dec. 27, 2005]
Sec. 1404.15 Fees and charges of arbitrators.
(a) Fees to Parties. Prior to appointment, the parties should be
aware of all significant aspects of the bases for an arbitrator's fees
and expenses. Each arbitrator's biographical sketch shall include a
statement of the bases for the arbitrator's fees and expenses, which
shall conform to this part and the Code. The parties and the arbitrator
shall be bound by the arbitrator's statement of the bases for fees and
expenses in the biographical sketch unless they mutually agree otherwise
in writing. Arbitrators listed on the Roster may change the bases for
their fees and expenses if they provide them in writing to OAS at least
30 days in advance.
(b) Dual Addresses. Arbitrators with dual business addresses must
bill the parties for expenses from the lesser expensive business address
to the hearing site.
(c) Additional Administrative Fee. In cases involving unusual
amounts of time and expense relative to the pre-hearing and post-hearing
administration of a particular case, the arbitrator may charge an
administrative fee. This fee shall be disclosed to the parties as soon
as it is foreseeable by the arbitrator.
(d) Fee Disputes. The OAS requests that it be notified of an
arbitrator's deviation from this Part. While the OAS does not resolve
individual fee disputes, repeated complaints concerning the fees charged
by an arbitrator will be brought to the attention of the Board for
consideration. Similarly, complaints by arbitrators concerning non-
payment of fees by the parties may lead to the denial of services or
other actions by the OAS.
[70 FR 76399, Dec. 27, 2005]
Sec. 1404.16 Reports and biographical sketches.
(a) Arbitrators listed on the Roster shall execute and return all
documents, forms and reports required by the OAS. They shall also keep
the OAS informed of changes of address, telephone number, availability,
and of any business or other connection or relationship which involves
labor-management relations or which creates or gives the appearance of
advocacy as defined in Sec. 1404.5(c)(1).
(b) The OAS will provide parties with biographical sketches for each
arbitrator on the Roster from information supplied by the arbitrator in
conformance with this section and Sec. 1404.15. The OAS reserves the
right to decide and approve the format and content of biographical
sketches.
[62 FR 34171, June 25, 1997, as amended at 70 FR 76399, Dec. 27, 2005]
Subpart D_Expedited Arbitration
Source: 62 FR 48949, Sept. 18, 1997, unless otherwise noted.
Sec. 1404.17 Policy.
In an effort to reduce the time and expense of some grievance
arbitrations, FMCS offers expedited procedures that may be appropriate
in certain non-precedential cases or those that do not involve complex
or unique issues. Expedited arbitration is intended to be a mutually
agreed-upon process whereby arbitrator appointments, hearings and awards
are acted upon quickly by the parties, FMCS, and the arbitrators.
Mandating short deadlines and eliminating requirements for transcripts,
[[Page 55]]
briefs and lengthy opinions streamline the process.
[70 FR 76399, Dec. 27, 2005]
Sec. 1404.18 Procedures for requesting expedited panels.
(a) With the excepting 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, the OAS will
refer a panel of arbitrators.
(c) A panel of arbitrators submitted by the OAS in expedited cases
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, the OAS will make a direct appointment of an arbitrator not on the
original panel.
(d) 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 the OAS will make a direct appointment of another arbitrator
not listed on the original panel.
[62 FR 48949, Sept. 18, 1997, as amended at 70 FR 76400, Dec. 27, 2005]
Sec. 1404.19 Arbitration process.
(a) Once notified of the expedited case appointment by the OAS, 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, concise, and not
required extensive written opinion or research time.
Sec. 1404.20 Proper use of expedited arbitration.
(a) FMCS reserves the right to cease honoring request for Expedited
Arbitration if a pattern of misuse of this becomes apparent. Misuse may
be indicated by the parties' frequent delay of the process or referral
of inappropriate cases.
(b) Arbitrators who exhibit a pattern of unavailability of
appointments or who are repeatedly unable to schedule hearings or render
awards within established deadlines will be considered ineligible for
appointment for this service.
[62 FR 48949, Sept. 18, 1997. Redesignated at 70 FR 76400, Dec. 27,
2005]
Sec. Appendix to 29 CFR Part 1404--Arbitration Policy; Schedule of Fees
Annual listing fee for all arbitrators: $150 for the first address; $50
for the second address
Request for panel of arbitrators processed by FMCS staff: $50
Request for panel of arbitrators on-line: $30.00
Direct appointment of an arbitrator when a panel is not used: $20.00 per
appointment
List and biographic sketches of arbitrators in a specific area: $25.00
per request plus $.25 per page.
[68 FR 10659, Mar. 6, 2003, amended at 75 FR 30706, June 2, 2010]
PART 1405_PART-TIME EMPLOYMENT--Table of Contents
Subpart A_General
Sec.
1405.1 Purpose.
1405.2 Policy.
1405.3 Definition.
1405.4 Applicability.
Subpart B_Part-time Employment Program
1405.6 Program coordination.
1405.7 Goals and timetables.
1405.8 Reporting.
1405.9 Part-time employment practices.
1405.10 Effect on employment ceilings.
1405.11 Effect on employee benefits.
Authority: Pub. L. 95-437, Federal Employees Part-time Career
Employment Act of 1978.
Source: 47 FR 15779, Apr. 13, 1982, unless otherwise noted.
[[Page 56]]
Subpart A_General
Sec. 1405.1 Purpose.
These regulations implement Public Law 95-437, the Federal Employees
Part-time Career Employment Act of 1978, by establishing a continuing
program in the Federal Mediation and Conciliation Service (FMCS) to
provide career part-time employment opportunities.
Sec. 1405.2 Policy.
It is the policy of FMCS to provide career part-time employment
opportunities in positions through GS-16 (or equivalent) subject to
agency resources and mission requirements.
Sec. 1405.3 Definition.
Part-time career employment means regularly scheduled work of from
16 to 32 hours per week performed by employees in competitive or
excepted appointments in tenure groups I or II.
Sec. 1405.4 Applicability.
The regulations cover permanent positions which are deemed by
management to be appropriately structured on a part-time basis. The
regulations do not apply to positions at GS-16 (or equivalent) and
above.
Subpart B_Part-time Employment Program
Sec. 1405.6 Program coordination.
The Director of Personnel is designated the FMCS Part-time
Employment Coordinator with responsibility for:
(a) Consulting in the part-time employment program with the Director
of Equal Employment Opportunity, Federal Women's Program Coordinator,
Handicapped Program Coordinator, representatives of employee unions, and
other interested parties;
(b) Responding to requests for advice and assistance on part-time
employment within the agency;
(c) Maintaining liaison with groups interested in promoting part-
time employment opportunities;
(d) Monitoring the agency's part-time employment efforts; and
preparing reports on part-time employment for transmittal to OPM and the
Congress.
Sec. 1405.7 Goals and timetables.
On an annual basis, as part of the manpower and budget process,
management will set goals for establishing part-time positions to part-
time along with a timetable setting forth interim and final deadlines
for achieving the goals. Decisions on part-time employment will be based
on such factors as agency mission, occupational mix, workload
fluctuations, affirmative actions, geographic dispersion, effect on
providing services to the public, and employee interest in part-time
employment.
Sec. 1405.8 Reporting.
FMCS will report as required by regulations to the Office of
Personnel Management on the part-time employment program. The program
will be reviewed through internal personnel management evaluations.
Sec. 1405.9 Part-time employment practices.
FMCS will review positions which become vacant for the feasibility
of utilizing part-time career appointments. Part-time positions will be
advertised in vacancy announcements. Agency employees may request and
receive consideration to switch from full-time to part-time schedules.
The request should be addressed through the supervisor to the Director
of Personnel listing any and all reasons for the request. The Director
of Personnel, with input from all affected management officials, will
decide whether or not to grant the request. Any employee requesting a
change from full-time to part-time employment will be advised of effects
on pay and fringe benefits by the Director of Personnel.
Sec. 1405.10 Effect on employment ceilings.
Effective October 1, 1980, part-time employees will be counted on
the basis of the fractional part of the 40-hour week actually worked.
For example two employees each working twenty hours a week will count as
one employee.
[[Page 57]]
Sec. 1405.11 Effect on employee benefits.
Career part-time employees are entitled to coverage under the
Federal Employees Group Life Insurance and Federal Employees Health
Benefits Programs. The Government contribution for health insurance of
eligible part-time employees will be prorated on the basis of the
fraction of a full-time schedule worked.
PART 1410_PRIVACY--Table of Contents
Sec.
1410.1 Purpose and scope.
1410.2 Definitions.
1410.3 Individual access requests.
1410.4 Requirements for identification of individuals making requests.
1410.5 Special procedures: Medical records.
1410.6 Requests for correction or amendment of records.
1410.7 Agency review of refusal to amend a record.
1410.8 Notation of dispute.
1410.9 Fees.
1410.10 Penalties.
1410.11 Standards of review.
1410.12 Specific exemptions.
Authority: Privacy Act 1974, Pub. L. 93-579, 88 Stat. 1896 (5 U.S.C.
552a).
Source: 40 FR 47418, Oct. 8, 1975, unless otherwise noted.
Sec. 1410.1 Purpose and scope.
(a) The purpose of this part is to set forth rules to inform the
public about information maintained by the Federal Mediation and
Conciliation Service about individuals, to inform those individuals how
they may gain access to and correct or amend information about
themselves, and to exempt disclosure of identity of confidential sources
of certain records.
(b) [Reserved]
Sec. 1410.2 Definitions.
For the purposes of this part, unless otherwise required by the
context--
(a) Individual means a citizen of the United States or an alien
lawfully admitted for permanent residence.
(b) Maintain means maintain, collect, use or disseminate.
(c) Record means any item, collection or grouping of information
about an individual that is maintained by the Federal Mediation and
Conciliation Service including, but not limited to, his education,
financial transactions, medical history, and criminal or employment
history, that contains his name, or the identifying number, symbol, or
other identifying particular assigned to the individual, such as a
finger or voice print, or a photograph.
(d) System of records means a group of any records under the control
of Federal Mediation and Conciliation Service from which information is
retrieved by the name of the individual or by some identifying
particular assigned to the individual.
Sec. 1410.3 Individual access requests.
(a) Individuals who desire to know whether the agency maintains a
system of records containing records pertaining to him may submit a
written request to the Director of Administration, Federal Mediation and
Conciliation Service, Washington, DC 20427. The request must include the
name and address of the requestor. The Director of Administration, or
his designated representative, will advise the requestor in writing
within 10 working days whether the records are so maintained and the
general category of records maintained within the system.
(b) Any individual who desires to inspect or receive copies of any
record maintained within the system concerning him shall submit a
written request to the Director of Administration, Federal Mediation and
Conciliation Service, Washington, DC 20427, reasonably identifying the
records sought to be inspected or copied.
(c) The individual seeking access to his record may also have
another person accompanying him during his review of the records. If the
requestor desires another person to accompany him during the inspection,
the requestor must sign a statement, to be furnished to the Service
representative at the time of the inspection authorizing such other
person to accompany him. Except as required under the Freedom of
Information Act, permitted as a routine use as published in the agency's
annual notice, or for internal agency use, disclosure of records will
only be made to the individual to whom the record pertains, unless
written consent is obtained from that individual. The Director of
Administration will verify
[[Page 58]]
the signature of the individual requesting or consenting to the
disclosure of a record prior to the disclosure thereof to any other
person by a comparison of signatures, if the request or consent is not
executed within the presence of a designated Service representative.
(d) The Director of Administration or his designated representative
will advise the requestor in writing within 10 working days of receipt
of the request whether, to what extent, and approximately when and where
access shall be granted. Within 30 days of receipt of the request, the
records will be made available for review at the FMCS National Office in
Washington, DC, or one of the Regional Offices. The following is a list
of the Regional Office locations:
1. Eastern Region:
Address: Jacob K. Javits Federal Building, 26 Federal Plaza, Room
2937, New York, NY 10278.
Consists of: Maine, New Hampshire, Vermont, Connecticut, Rhode
Island, Massachusetts, New York, Puerto Rico, the Virgin Islands,
Pennsylvania, Delaware, New Jersey, Garrett and Alleghany Counties of
Maryland; and Brooke and Hancock Counties of West Virginia.
2. Central Region:
Address: Insurance Exchange Building, Room 1641, 175 W. Jackson
Street, Chicago, IL 60604.
Consist of: Illinois (except counties listed under the Southern
Region); Indiana (except counties listed under Southern Region);
Wisconsin, Minnesota, North Dakota, South Dakota, Michigan, and Ohio
(except counties listed under the Southern Region).
3. Southern Region:
Address: Suite 400, 1422 W. Peachtree St., NW., Atlanta, GA 30309.
Consists of: Virginia, Maryland (except counties listed under the
Eastern Region); Tennessee; North Carolina; South Carolina; Georgia;
Alabama; Florida; Mississippi; Louisiana; Arkansas; Kentucky; Texas
(except for Hudspeth and El Paso counties); Oklahoma; Missouri (except
for those counties listed for the Western Region); Illinois (in counties
of Calhoun, Greene, Jersey, McCoupin, Montgomery, Fayette, Bond,
Madison, St. Clair, Monroe, Clinton, Washington, Marion, White,
Hamilton, Wayne, Edwards, Wabash, Lawrence, Richland, Clay, Effingham,
Jasper, and Crawford); Indiana (the counties of Knox, Daviess, Martin,
Orange, Washington, Clark, Floyd, Harrison, Crawford, Perry, Spencer,
DuBois, Pike, Gibson, Posey, Vanderburgh, and Warrick); Ohio (the
counties of Butler, Hamilton, Warren, Clermont, Brown, Highland,
Clinton, Ross, Pike, Adams, Scioto, Lawrence, Ballia, Jackson, Vinton,
Hocking, Athens, and Meigs); Kansas (the counties of Bourbon, Crawford,
Cherokee, and Ottawa); West Virginia (except counties listed under the
Central Region); and the Canal Zone.
4. Western Region:
Address: Francisco Bay Building, Suite 235, 50 Francisco Street, San
Francisco, CA 94133.
Consists of: California; Nevada; Arizona; New Mexico; El Paso and
Hudspeth Counties (only) in Texas; Hawaii; Guam; Alaska; Washington;
Oregon; Colorado; Utah; Wyoming; Montana; Idaho; Nebraska; Kansas; Iowa;
Missouri (the counties of Atchinson, Nodaway, Worth, Harrison, Mercer,
Putnam, Schuyler, Scotland, Knox, Adair, Sullivan, Grundy, Daviess,
Gentry, DeKalb, Andrew, Holt, Buchanan, Clinton, Caldwell, Livingston,
Linn, Macon, Shelby, Randolph, Chariton, Carrol, Ray, Clay, Platte,
Jackson, Lafayette, Saline, Howard, Boon, Cooper, Pettis, Johnson, Cass,
Bates, Henry, St. Clair, Benton, and Morgan); American Somoa; and Wake
Island.
[40 FR 47418, Oct. 8, 1975, as amended at 47 FR 10530, Mar. 11, 1982]
Sec. 1410.4 Requirements for identification of individuals making requests.
Satisfactory identification (i.e., employ identification number,
current address, and verification of signature) must be provided to FMCS
prior to review of the record. The requestor will be provided the
opportunity to review the records during normal business hours.
Sec. 1410.5 Special procedures: Medical records.
(a) If medical records are requested for inspection which, in the
opinion of the Director of Administration, may be harmful to the
requestor if personally inspected by him, such records will be furnished
only to a licensed physician, designated to receive such records by the
requestor. Prior to such disclosure, the requestor must furnish a signed
written authorization to the Service to make such disclosure and the
physician must furnish a written request to the Director of
Administration for the physician's receipt of such records.
(b) Verification of the requestor's signature will be accomplished
by a comparison of signatures if such authorization is not executed
within the presence of a Service representative.
[[Page 59]]
Sec. 1410.6 Requests for correction or amendment of records.
(a) If the individual disagrees with the information in the record,
he may request that the record be amended by addition or deletion. Such
a request must be in writing and directed to the Director of
Administration, Federal Mediation and Conciliation Service, Washington,
DC, 20427. The request must also specifically outline the amendment
sought. The Director of Administration or his designated representative
will acknowledge receipt of the request within 10 working days from the
date of receipt of such request. Under normal circumstances, not later
than 30 days after receipt of the request for amendments, the Director
of Administration will either:
(1) Amend the record and notify the requestor in a written letter of
determination to what extent the record is amended; or
(2) If the amendment or correction is denied in whole or in part,
notify the requestor in a written letter of determination the reason for
denial and the requestor's right to request review by the Deputy
National Director.
(b) Routine requests of arbitrators maintained on the Service's
roster of arbitrators to amend records for such matters as address,
experience, fees charged, may be made in writing to the Director of
Arbitration Services, Washington, DC, 20427. If such routine requests
are not granted or involve other types of amendments, then the procedure
to be followed is that which includes a request in writing to the
Director of Administration.
Sec. 1410.7 Agency review of refusal to amend a record.
(a) The requestor may appeal any determination of the Director of
Administration not to amend a record by submitting a written request for
review of refusal to amend a record to the Deputy National Director,
Washington, DC 20427. Such a request shall indicate the specific
corrections or amendments sought. Not later than 30 days from receipt of
a request for review (unless such period is extended by the National
Director for good cause shown), the Deputy National Director will
complete such a review and make a final determination on the request,
and shall advise the requestor in a written letter of determination
whether, and to what extent the correction or amendment will be made. If
the correction or amendment is denied, in whole or in part, the letter
of determination will specify the reasons for such denial.
(b) If the Deputy National Director makes a final determination not
to amend the record, the individual may provide to the Service a concise
written statement explaining the reasons for disagreement with the
refusal.
(c) In addition, the individual may file a civil action in the U.S.
District Court to seek an order compelling the Service to amend the
record as requested.
Sec. 1410.8 Notation of dispute.
After an individual has filed a statement of disagreement as
described in Sec. 1410.7(b), any disclosure of the contested records
must contain a notation of the dispute. In addition, a copy of the
individual's statement will be provided to the person or agency to whom
the disputed record is disclosed. The Service may also, but it is not
required to, provide a statement reflecting the agency's reasons for not
making the requested amendments.
Sec. 1410.9 Fees.
Upon request, the Service will provide a photostatic copy of the
records to the individual to whom they pertain. There will be a charge
of $.10 per page.
Sec. 1410.10 Penalties.
Any person who knowingly and willfully requests or obtains any
record concerning an individual from the Service under false pretenses
shall be guilty of a misdemeanor and fined not more than $5,000.
Sec. 1410.11 Standards of review.
Upon a request for inspection of records or a determination on a
request for amendment, the Director of Administration, his designated
representative, or the Deputy National Director will review the
pertinent records and discard any material in them that is not:
[[Page 60]]
(a) Relevant and necessary to accomplish a statutory purpose or a
purpose not authorized by executive order.
(b) Accurate, relevant, timely, and complete, to assure fairness to
the individual.
Sec. 1410.12 Specific exemptions.
With regard to Agency Internal Personnel Records and Arbitrator
Personal Data Files, separately described in the system notices, such
records will be exempted from section (d) of the Act as follows:
Investigatory material maintained solely for the purposes of
determining an individual's qualification, eligibility, or suitability
for employment in the Federal civilian service, Federal contracts, or
access to classified information, but only to the extent that disclosure
of such material would reveal the identity of the source who furnished
information to the Government under an express promise that the identity
of the source would be held in confidence, or prior to September 27,
1975, under an implied promise that the identity of the source would be
held in confidence.
In order to obtain accurate information pertaining to employee or
arbitrator eligibility, the nondisclosure of the identity of such a
confidential source is essential.
PART 1420_FEDERAL MEDIATION AND CONCILIATION SERVICE_ASSISTANCE
IN THE HEALTH CARE INDUSTRY--Table of Contents
Sec.
1420.1 Functions of the Service in health care industry bargaining under
the Labor-Management Relations Act, as amended (hereinafter
``the Act'').
1420.2-1420.4 [Reserved]
1420.5 Optional input of parties to Board of Inquiry selection.
1420.6-1420.7 [Reserved]
1420.8 FMCS deferral to parties' own private factfinding procedures.
1420.9 FMCS deferral to parties' own private interest arbitration
procedures.
Authority: Secs. 8(d), 201, 203, 204, and 213 of the Labor
Management Relations Act, as amended in 1974 (29 U.S.C. 158(d), 171,
173, 174 and 183).
Source: 44 FR 42683, July 20, 1979, unless otherwise noted.
Sec. 1420.1 Functions of the Service in health care industry bargaining
under the Labor-Management Relations Act, as amended (hereinafter ``the Act'').
(a) Dispute mediation. Whenever a collective bargaining dispute
involves employees of a health care institution, either party to such
collective bargaining must give certain statutory notices to the Federal
Mediation and Conciliation Service (hereinafter ``the Service'') before
resorting to strike or lockout and before terminating or modifying any
existing collective bargaining agreement. Thereafter, the Service will
promptly communicate with the parties and use its best efforts, by
mediation and conciliation, to bring them to agreement. The parties
shall participate fully and promptly in such meetings as may be called
by the Service for the purpose of aiding in a settlement of the dispute.
(29 U.S.C. 158(d) and 158(g).).
(b) Boards of inquiry. If, in the opinion of the Director of the
Service a threatened or actual strike or lockout affecting a health care
institution will substantially interrupt the delivery of health care in
the locality concerned, the Director may establish within certain
statutory time periods an impartial Board of Inquiry. The Board of
Inquiry will investigate the issues involved in the dispute and make a
written report, containing the findings of fact and the Board's non-
binding recommendations for settling the dispute, to the parties within
15 days after the establishment of such a Board. (29 U.S.C. 183.)
Sec. Sec. 1420.2-1420.4 [Reserved]
Sec. 1420.5 Optional input of parties to Board of Inquiry selection.
The Act gives the Director of the Service the authority to select
the individual(s) who will serve as the Board of Inquiry if the Director
decides to establish a Board of Inquiry in a particular health care
industry bargaining dispute (29 U.S.C. 183). If the parties to
collective bargaining involving a health care institution(s) desire to
have some input to the Service's selection of an individual(s) to serve
as a Board of Inquiry (hereinafter ``BoI''),
[[Page 61]]
they may jointly exercise the following optional procedure:
(a) At any time at least 90 days prior to the expiration date of a
collective bargaining agreement in a contract renewal dispute, or at any
time prior to the notice required under clause (B) of section 8(d) of
the Act (29 U.S.C. 158(d)) in an initial contract dispute, the
employer(s) and the union(s) in the dispute may jointly submit to the
Service a list of arbitrators or other impartial individuals who would
be acceptable BoI members both to the employer(s) and to the union(s).
Such list submission must identify the dispute(s) involved and must
include addresses and telephone numbers of the individuals listed and
any information available to the parties as to current and past
employment of the individuals listed. The parties may jointly rank the
individuals in order of preference if they desire to do so.
(b) The Service will make every effort to select any BoI that might
be appointed from that jointly submitted list. However, the Service
cannot promise that it will select a BoI from such list. The chances of
the Service finding one or more individuals on such list available to
serve as the BoI will be increased if the list contains a sufficiently
large number of names and if it is submitted at as early a date as
possible. Nevertheless, the parties can even preselect and submit
jointly to the Service one specific individual if that individual agrees
to be available for the particular BoI time period. Again the Service
will not be bound to appoint that individual, but will be receptive to
such a submission by the parties.
(c) The jointly submitted list may be worked out and agreed to by
(1) A particular set of parties in contemplation of a particular
upcoming negotiation dispute between them, or (2) a particular set of
parties for use in all future disputes between that set of parties, or
(3) a group of various health care institutions and unions in a certain
community or geographic area for use in all disputes between any two or
more of those parties.
(d) Submission or receipt of any such list will not in any way
constitute an admission of the appropriateness of appointment of a BoI
nor an expression of the desirability of a BoI by any party or by the
Service.
(e) This joint submission procedure is a purely optional one to
provide the parties with an opportunity to have input into the selection
of a BoI if they so desire.
(f) Such jointly submitted lists should be sent jointly by the
employer(s) and the union(s) to the appropriate regional office of the
Service. The regional offices of the Service are as follows:
1. Eastern Region:
Address: Jacob K. Javits Federal Building, 26 Federal Plaza, Room
2937, New York, NY 10278.
Consists of: Maine, New Hampshire, Vermont, Connecticut, Rhode
Island, Massachusetts, New York, Puerto Rico, the Virgin Islands,
Pennsylvania, Delaware, New Jersey, Garrett and Alleghany Counties of
Maryland; and Brooke and Hancock Counties of West Virginia.
2. Central Region:
Address: Insurance Exchange Building, Room 1641, 175 W. Jackson
Street, Chicago, IL 60604.
Consist of: Illinois (except counties listed under the Southern
Region); Indiana (except counties listed under Southern Region);
Wisconsin, Minnesota, North Dakota, South Dakota, Michigan, and Ohio
(except counties listed under the Southern Region).
3. Southern Region:
Address: Suite 400, 1422 W. Peachtree St., NW., Atlanta, GA 30309.
Consists of: Virginia, Maryland (except counties listed under the
Eastern Region); Tennessee; North Carolina; South Carolina; Georgia;
Alabama; Florida; Mississippi; Louisiana; Arkansas; Kentucky; Texas
(except for Hudspeth and El Paso counties); Oklahoma; Missouri (except
for those counties listed for the Western Region); Illinois (in counties
of Calhoun, Greene, Jersey, McCoupin, Montgomery, Fayette, Bond,
Madison, St. Clair, Monroe, Clinton, Washington, Marion, White,
Hamilton, Wayne, Edwards, Wabash, Lawrence, Richland, Clay, Effingham,
Jasper, and Crawford); Indiana (the counties of Knox, Daviess, Martin,
Orange, Washington, Clark, Floyd, Harrison, Crawford, Perry, Spencer,
DuBois, Pike, Gibson, Posey, Vanderburgh, and Warrick); Ohio (the
counties of Butler, Hamilton, Warren, Clermont, Brown, Highland,
Clinton, Ross, Pike, Adams, Scioto, Lawrence, Ballia, Jackson, Vinton,
Hocking, Athens, and Meigs); Kansas (the counties of Bourbon, Crawford,
Cherokee, and Ottawa); West Virginia (except counties listed under the
Central Region); and the Canal Zone.
[[Page 62]]
4. Western Region:
Address: Francisco Bay Building, Suite 235, 50 Francisco Street, San
Francisco, CA 94133.
Consists of: California; Nevada; Arizona; New Mexico; El Paso and
Hudspeth Counties (only) in Texas; Hawaii; Guam; Alaska; Washington;
Oregon; Colorado; Utah; Wyoming; Montana; Idaho; Nebraska; Kansas; Iowa;
Missouri (the counties of Atchinson, Nodaway, Worth, Harrison, Mercer,
Putnam, Schuyler, Scotland, Knox, Adair, Sullivan, Grundy, Daviess,
Gentry, DeKalb, Andrew, Holt, Buchanan, Clinton, Caldwell, Livingston,
Linn, Macon, Shelby, Randolph, Chariton, Carrol, Ray, Clay, Platte,
Jackson, Lafayette, Saline, Howard, Boon, Cooper, Pettis, Johnson, Cass,
Bates, Henry, St. Clair, Benton, and Morgan); American Somoa; and Wake
Island.
[44 FR 42683, July 20, 1979, as amended at 47 FR 10530, Mar. 11, 1982]
Sec. Sec. 1420.6-1420.7 [Reserved]
Sec. 1420.8 FMCS deferral to parties' own private factfinding procedures.
(a) The Service will defer to the parties' own privately agreed to
factfinding procedure and decline to appoint a Board of Inquiry (BoI) as
long as the parties' own procedure meets certain conditions so as to
satisfy the Service's responsibilities under the Act. The Service will
decline to appoint a BoI and leave the selection and appointment of a
factfinder to the parties to a dispute if both the parties have agreed
in writing to their own factfinding procedure which meets the following
conditions:
(1) The factfinding procedure must be invoked automatically at a
specified time (for example, at contract expiration if no agreement is
reached).
(2) It must provide a fixed and determinate method for selecting the
impartial factfinder(s).
(3) It must provide that there can be no strike or lockout and no
changes in conditions of employment (except by mutual agreement) prior
to or during the factfinding procedure and for a period of at least
seven days after the factfinding is completed.
(4) It must provide that the factfinder(s) will make a written
report to the parties, containing the findings of fact and the
recommendations of the factfinder(s) for settling the dispute, a copy of
which is sent to the Service. The parties to a dispute who have agreed
to such a factfinding procedure should jointly submit a copy of such
agreed upon procedure to the appropriate regional office of the Service
at as early a date as possible, but in any event prior to the
appointment of a BoI by the Service. See Sec. 1420.5(f) for the
addresses of the regional offices.
(b) Since the Service does not appoint the factfinder under
paragraph (a) of this section, the Service cannot pay for such
factfinder. In this respect, such deferral by the Service to the
parties' own factfinding procedure is different from the use of
stipulation agreements between the parties which give to the Service the
authority to select and appoint a factfinder at a later date than the
date by which a BoI would have to be appointed under the Act. Under such
stipulation agreements by which the parties give the Service authority
to appoint a factfinder at a later date, the Service can pay for the
factfinder. However, in the deferral to the parties' own factfinding
procedure, the parties choose their own factfinder and they pay for the
factfinder.
Sec. 1420.9 FMCS deferral to parties' own private interest arbitration procedures.
(a) The Service will defer to the parties' own privately agreed to
interest arbitration procedure and decline to appoint a Board of Inquiry
(BoI) as long as the parties' own procedure meets certain conditions so
as to satisfy the Service's responsibilities under the Act. The Service
will decline to appoint BoI if the parties to a dispute have agreed in
writing to their own interest arbitration procedure which meets the
following conditions:
(1) The interest arbitration procedure must provide that there can
be no strike or lockout and no changes in conditions of employment
(except by mutual agreement) during the contract negotiation covered by
the interest arbitration procedure and the period of any subsequent
interest arbitration proceedings.
(2) It must provide that the award of the arbitrator(s) under the
interest arbitration procedure is final and binding on both parties.
[[Page 63]]
(3) It must provide a fixed and determinate method for selecting the
impartial interest arbitrator(s).
(4) The interest arbitration procedure must provide for a written
award by the interest arbitrator(s).
(b) The parties to a dispute who have agreed to such an interest
arbitration procedure should jointly submit a copy of their agreed upon
procedure to the appropriate regional office of the Service at as early
a date as possible, but in any event prior to the appointment of BoI by
the Service. See Sec. 1420.5(f) for the addresses of regional offices.
These new regulations are a part of the Service's overall approach to
implementing the health care amendments of 1974 in a manner consistent
with the Congressional intent of promoting peaceful settlements of labor
disputes at our vital health care facilities. The Service will work with
the parties in every way possible to be flexible and to tailor its
approach so as to accommodate the needs of the parties in the interest
of settling the dispute. This was the motivating principle behind these
new regulations which permit input by the parties to the Board of
Inquiry selection and allow the parties to set up their own factfinding
or arbitration procedures in lieu of the Board of Inquiry procedure. We
encourage the parties, both unions and management, to take advantage of
these and other options and to work with the Service to tailor their
approach and procedures to fit the needs of their bargaining situations.
PART 1425_MEDIATION ASSISTANCE IN THE FEDERAL SERVICE--Table of Contents
Sec.
1425.1 Definitions.
1425.2 Notice to the Service of agreement negotiations.
1425.3 Functions of the Service under title VII of the Civil Service
Reform Act.
1425.4 Duty of parties.
1425.5 Referral to FSIP.
1425.6 Use of third-party mediation assistance.
Authority: 5 U.S.C. 581(8), 7119, 7134.
Source: 45 FR 62798, Sept. 22, 1980, unless otherwise noted.
Sec. 1425.1 Definitions.
As used in this part:
(a) The Service means Federal Mediation and Conciliation Service.
(b) Party or Parties means (1) any appropriate activity, facility,
geographical subdivision, or combination thereof, of an agency as that
term is defined in 5 U.S.C. 7103(3), or (2) a labor organization as that
term is defined in 5 U.S.C. 7103(4).
(c) Third-party mediation assistance means mediation by persons
other than FMCS commissioners.
(d) Provide its services means to make the services and facilities
of the Service available either on its own motion or upon the special
request of one or both of the parties.
Sec. 1425.2 Notice to the Service of agreement negotiations.
(a) In order that the Service may provide assistance to the parties,
the party initiating negotiations shall file a notice with the FMCS
Notice Processing Unit, 2100 K Street, N.W., Washington, D.C. 20427, at
least 30 days prior to the expiration or modification date of an
existing agreement, or 30 days prior to the reopener date of an existing
agreement. In the case of an initial agreement the notice shall be filed
within 30 days after commencing negotiations.
(b) Parties engaging in mid-term or impact and/or implementation
bargaining are encouraged to send a notice to FMCS if assistance is
desired. Such notice may be sent by either party or may be submitted
jointly. In regard to such notices a brief listing should be general in
nature e.g., smoking policies, or Alternative Work Schedules (AWS).
(c) Parties requesting grievance mediation must send a request
signed by both the union and the agency involved. Receipt of such
request does not commit FMCS to provide its services. FMCS has the
discretion to determine whether or not to perform grievance mediation,
as such service may not be appropriate in all cases.
(d) The guidelines for FMCS grievance mediation are:
(1) The parties shall submit a joint request, signed by both parties
requesting FMCS assistance. The parties agree
[[Page 64]]
that grievance mediation is a supplement to, and not a substitute for,
the steps of the contractual grievance procedure.
(2) The grievant is entitled to be present at the grievance
mediation conference.
(3) Any times limits in the parties labor agreement must be waived
to permit the grievance to proceed to arbitration should mediation be
unsuccessful.
(4) Proceedings before the mediator will be informal and rules of
evidence do not apply. No record, stenographic or tape recordings of the
meetings will be made. The mediators notes are confidential and content
shall not be revealed.
(5) The mediator shall conduct the mediation conference utilizing
all of the customary techniques associated with mediation including the
use of separate caucuses.
(6) The mediator had no authority to compel resolution of the
grievance.
(7) In the event that no settlement is reached during the mediation
conference, the mediator may provide the parties either in separate or
joint session with an oral advisory opinion.
(8) If either party does not accept an advisory opinion, the matter
may then proceed to arbitration in the manner form provided in their
collective bargaining agreement. Such arbitration hearings will be held
as if the grievance mediation effort had not taken place. Nothing said
or done by the parties or the mediator during the grievance mediation
session can be used during arbitration proceedings.
(9) When the parties choose the FMCS grievance mediation procedure,
they have agreed to abide by these guidelines established by FMCS, and
it is understood that the parties and the grievant shall hold FMCS and
the mediator appointed by the Service to conduct the mediation
conference harmless of any claim of damages arising from the mediation
process.
[[Page 65]]
[GRAPHIC] [TIFF OMITTED] TR10JA95.000
Instructions
Complete this form, please follow these instructions.
In item 1. Check the block and give the date if this is for
an existing agreement or reopener. The FLRA Certification number should
be provided if available. If not known, please leave this item blank.
Absence of this number will not impede processing of the Form.
In item 2. If other assistance in bargaining is requested
please specify: e.g.; impact and
[[Page 66]]
implementation bargaining (I&I) and/or mid-term bargaining and provide a
brief listing of issues, e.g. Smoking, Alternative Work Schedules (AWS),
ground rules, office moves, or if desired, add attached list. This is
only if such issues are known at time of filing.
In item 3. Please specify the issues to be considered for
grievance mediation. Please refer to FMCS guidelines for processing
these requests. Please make certain that both parties sign this request!
In item 4. List the name of the agency, as follows: The
Department, and the subdivision or component. For example: U.S. Dept. of
Labor, BLS, or U.S. Dept. of Army, Aberdeen Proving Ground, or Illinois
National Guard, Springfield Chapter. If an independent agency is
involved, list the agency, e.g. Federal Deposit Insurance Corp. (FDIC)
and any subdivision or component, if appropriate.
In item 5. List the name of the union and its subdivision
or component as follows: e.g. Federal Employees Union, Local 23 or
Government Workers Union, Western Joint Council.
In item 6. Provide the area where the negotiation or
mediation will most likely take place, with zip code, e.g., Washington,
D.C. 20427. The zip code is important because our cases are routed by
computer through zip code, and mediators are assigned on that basis.
In item 7. Only the approximate number of employees in the
bargaining unit and establishment are requested. The establishment is
the entity referred to in item 4 as name of subdivision or component, if
any.
In item 8. The filing need only be sent by one party unless
it is a request for grievance mediation. (See item 9.)
In item 9. Please give the title of the official, phone
number, address, and zip code.
In item 10. Both labor and management signatures are
required for grievance mediation requests.
Notice
Send original to F.M.C.S.
Send one copy to opposite party.
Retain one copy for party filing notice.
[60 FR 2509, Jan. 10, 1995]
Sec. 1425.3 Functions of the Service under title VII of the Civil Service Reform Act.
(a) The service may provide its assistance in any negotiation
dispute when earnest efforts by the parties to reach agreement through
direct negotiation have failed to resolve the dispute. When the
existence of a negotiation dispute comes to the attention of the Service
through a specific request for mediation from one or both of the
parties, through notification under the provisions of Sec. 1425.2, or
otherwise, the Service will examine the information concerning the
dispute and if, in its opinion, the need for mediation exists, the
Service will use its best efforts to assist the parties to reach
agreement.
(b) The Service may, at the outset of negotiations or at any time in
the dispute, set time limits on its participation. If no settlement of
the dispute is reached by the expiration of the time limits, the Service
may make suggestions for settlement to the parties. If suggestions for
settlement made by the Service are not accepted by the parties within
time limits set by the Service, the matter may be referred to the
Federal Services Impasses Panel (FSIP).
Sec. 1425.4 Duty of parties.
It shall be the duty of the parties to participate fully and
promptly in any meetings arranged by the Service for the purpose of
assisting in the settlement of a negotiation dispute.
Sec. 1425.5 Referral to FSIP.
If the mediation process has been completed and the parties are at a
negotiation impasse, the Service or the parties may request
consideration of the matter by the Federal Services Impasses Panel. The
Service shall not refer a case to FSIP until the mediation process has
been exhausted and the parties are at a negotiation impasse.
Sec. 1425.6 Use of third-party mediation assistance.
If the parties should mutually agree to third-party mediation
assistance other than that of the Service, both parties shall
immediately inform the Service in writing of this agreement. Such
written communication shall be filed with the regional director of the
region in which the negotiation is scheduled, and shall state what
alternate assistance the parties have agreed to use.
PART 1430_FEDERAL MEDIATION AND CONCILIATION SERVICE ADVISORY COMMITTEES--Table of Contents
Sec.
1430.1 Scope and purpose.
[[Page 67]]
1430.2 Definitions.
1430.3 Establishment of advisory committees.
1430.4 Filing of advisory committee charter.
1430.5 Termination of advisory committees.
1430.6 Renewal of advisory committees.
1430.7 Application of the Freedom of Information Act to advisory
committee functions.
1430.8 Advisory committee meetings.
1430.9 Agency management of advisory committees.
Authority: Pub. L. 92-463, 86 Stat. 770 (5 U.S.C. App.).
Source: 39 FR 9433, Mar. 11, 1974, unless otherwise noted.
Sec. 1430.1 Scope and purpose.
(a) This part contains the Federal Mediation and Conciliation
Service's regulations implementing section 8(a) of the Federal Advisory
Committee Act (Pub. L. 92-463, 86 Stat. 770, (5 U.S.C. App.)), which
requires each agency head to establish uniform guidelines and management
controls for the advisory committees. These regulations supplement the
Government-wide guidelines issued jointly by the Office of Management
and Budget and the Department of Justice, and should be read in
conjunction with them.
(b) The regulations provided under this part do not apply to
statutorily created or established advisory committees of the Service,
to the extent that such statutes have specific provisions different from
those promulgated herein.
Sec. 1430.2 Definitions.
For the purposes of this part:
(a) The term Act means the Federal Advisory Committee Act;
(b) The term advisory committee means any committee, board,
commission, counsel, conference, panel, task force, or other similar
group, or any subgroup or subcommittee thereof which is:
(1) Established by statute or reorganization, plan, or
(2) Established or utilized by the President, or
(3) Established or utilized by one or more agencies or officers of
the Federal Government in the interest of obtaining advice or
recommendations for the President or one or more agencies of the Federal
Government, except that such term excludes:
(i) The Advisory Commission on Intergovernmental Relations;
(ii) The Commission on Government Procurement; and
(iii) Any committee which is composed wholly of full-time officers
or employees of the Federal Government.
(c) The term agency has the same meaning as in 5 U.S.C. 552(1);
(d) The term committee management officer means the Federal
Mediation and Conciliation Service employee or his delegee, officially
designated to perform the advisory committee management functions
delineated in this part;
(e) The term Service means the Federal Mediation and Conciliation
Service;
(f) The term OMB means the Office of Management and Budget;
(g) The term Director means the Director of the Federal Mediation
and Conciliation Service;
(h) The term secretariat means the OMB Committee Management
Secretariat.
Sec. 1430.3 Establishment of advisory committees.
(a) Guidelines for establishing advisory committees. The guidelines
in establishing advisory committees are as follows:
(1) No advisory committee shall be established if its functions are
being or could be performed by an agency or an existing committee;
(2) The purpose of the advisory committee shall be clearly defined;
(3) The membership of the advisory committee shall be fairly
balanced in terms of the points of view represented and the committee's
functions;
(4) There shall be appropriate safeguards to assure that an advisory
committee's advice and recommendations will not be inappropriately
influenced by any special interests; and
(5) At least once a year, a report shall be prepared for each
advisory committee, describing the committee's membership, functions,
and actions.
(b) Advisory committees established by the Service not pursuant to
specific statutory authority. (1) Advisory committees
[[Page 68]]
established by the Service not pursuant to specific statutory authority
may be created by the Director after consultation with the secretariat.
(2) When the Director determines that such an advisory committee
needs to be established, he shall notify the secretariat of his
determination and shall inform the secretariat of the nature and purpose
of the committee, the reasons why the committee is needed, and the
inability of any existing agency or committee to perform the committee's
functions.
(3) After the secretariat has determined that establishment of such
a committee is in conformance with the Act and has so informed the
Director, the Director shall prepare a certification of the committee,
stating the committee's nature and purpose, and that it is established
in the public interest. That certification shall be published in the
Federal Register.
(c) Advisory committees created pursuant to Presidential directive.
Advisory committees established by Presidential directive are those
created pursuant to Executive Order, executive memorandum, or
reorganization plan. The Director shall create such committees in
accordance with the provisions of the Presidential directive and shall
follow the provisions of this part, to the extent they are not
inconsistent with the directive.
(d) Advisory committees created pursuant to specific statutory
authority. The Director shall create advisory committees established
pursuant to specific statutory authority in accordance with the
provisions of the statute and shall follow the provisions of this part,
to the extent they are not inconsistent with the statute: Provided,
however, That the Director need not utilize the procedures described in
paragraph (b) of this section.
(e) Advisory committees established by persons outside the Federal
Government, but utilized by the Service to obtain advice or opinion. In
utilizing such committees, the Director shall follow the provisions of
this part and the requirements of the Act. Such committees, to the
extent they are utilized by the Service, shall be considered, for the
purposes of this part, to be advisory committees established by the
Service.
Sec. 1430.4 Filing of advisory committee charter.
(a) Filing charter with Director. Before an advisory committee takes
any action or conducts any business, a charter shall be filed with the
Director, the standing committees of Congress with legislative
jurisdiction over the Service, and the Library of Congress. Except for a
committee in existence on the effective date of the Act, or when
authorized by statute, Presidential directive, or by the secretariat,
such charter shall be filed no earlier than 30 days after publication of
the committee's certification in the Federal Register.
(b) Charter information. A charter shall contain the following
information:
(1) The committee's official designation;
(2) The committee's objectives and scope of activity;
(3) The period of time necessary for the committee to carry out its
purposes;
(4) The agency or official to whom the advisory committee reports;
(5) The agency responsible for providing necessary support;
(6) A description of the committee's duties;
(7) The estimated number and frequency of committee meetings;
(8) The estimated annual operating costs in dollars and man-years;
(9) The committee's termination date, if less than two years; and
(10) The date the charter is filed.
(c) Preparation and filing of initial charter. Responsibility for
preparation of the initial committee charter shall be with the head of
the appropriate program within the Service, in cooperation with the
committee management officer. The Director of Administration shall have
responsibility for assuring the appropriate filings of such charters.
Sec. 1430.5 Termination of advisory committees.
(a) All nonstatutory advisory committees including those authorized,
but not specifically created by statute, shall terminate no later than 2
years after their charters have been filed, unless renewed as provided
in Sec. 1430.6.
[[Page 69]]
(b) The charter of any committee in existence on the date the Act
became effective (January 5, 1973) shall terminate no later than January
5, 1975, unless renewed, as provided in Sec. 1430.6.
(c) Advisory committees specifically created by statute shall
terminate as provided in the establishing statute.
Sec. 1430.6 Renewal of advisory committees.
(a) Renewal of advisory committees not created pursuant to specific
statutory authority.
(1) The Director may renew an advisory committee not created
pursuant to specific statutory authority after consultation with the
secretariat.
(2) When the Director determines that such an advisory committee
should be renewed, he shall so advise the secretariat within 60 days
prior to the committee's termination date and shall state the reasons
for his determination.
(3) Upon concurrence of the secretariat, the Director shall publish
notice of the renewal in the Federal Register and cause a new charter to
be prepared and filed in accordance with the provisions of Sec. 1430.3.
(b) Renewal of advisory committees established pursuant to specific
statutory authority. The Director may renew advisory committees
established pursuant to specific statutory authority through the filing
of a new charter at appropriate 2-year intervals.
(c) No advisory committee shall take any action or conduct any
business during the period of time between its termination date and the
filing of its renewal charter.
Sec. 1430.7 Application of the Freedom of Information Act to advisory committee functions.
(a) Subject to 5 U.S.C. 552, the records, reports, transcripts,
minutes, appendices, working papers, drafts, studies, agenda, and other
documents which are made available to or are prepared for or by an
advisory committee shall be available to the public.
(b) Advisory committee meeting conducted in accordance with Sec.
1430.7 may be closed to the public when discussing a matter that is of a
5 U.S.C. 552(b) nature, whether or not the discussion centers on a
written document.
(c) No record, report, or other document prepared for or by an
advisory committee may be withheld from the public unless the Office of
the General Counsel determines that the document is properly within the
exemptions of 5 U.S.C. 552(b). No committee meeting, or portion thereof,
may be closed to the public unless the Office of the General Counsel
determines in writing, prior to publication of the meeting in the
Federal Register that such a closing is within the exemptions of 5
U.S.C. 552(b).
Sec. 1430.8 Advisory committee meetings.
(a) Initiation of meetings. (1) Committee meetings may be called by:
(i) The Director or the head of the office most directly concerned
with the committee's activities;
(ii) The agency officer referred to in paragraph (a)(1)(i) of this
section, and the committee chairman, jointly; or
(iii) The committee chairman, with the advance approval of the
officer referred to in paragraph (a)(1)(i) of this section.
(2) The Service's committee management officer shall be promptly
informed that a meeting has been called.
(b) Agenda. Committee meetings shall be based on agenda approved by
the officer referred to in paragraph (a)(1) of this section. Such agenda
shall note those items which may involve matters which have been
determined by the Office of the General Counsel as coming within the
exemptions to the Freedom of Information Act, 5 U.S.C. 552(b).
(c) Notice of meetings. (1) Notice of advisory committee meetings
shall be published in the Federal Register at least 7 days before the
date of the meeting, irrespective of whether a particular meeting will
be open to the public. Notice to interested persons shall also be
provided in such other reasonable ways as are appropriate under the
circumstances, such as press release or letter. Responsibility for
preparation of Federal Register and other appropriate notice shall be
with the officer referred to in paragraph (a)(1) of this section.
[[Page 70]]
(2) Notice in the Federal Register shall state all pertinent
information related to a meeting and shall be published at least 7 days
prior to a meeting.
(d) Presence of agency officer or employee at meetings. No committee
shall meet without the presence of the officer referred to in paragraph
(a)(1) of this section, or his delegate. At his option the officer or
employee may elect to chair the meeting.
(e) Minutes. Detailed minutes shall be kept of all committee
meetings and shall be certified by the chairman of the advisory
committee as being accurate.
(f) Adjournment. The officer or employee referred to in paragraph
(a)(1) of this section may adjourn a meeting at any time he determines
it in the public interest to do so.
(g) Public access to committee meetings. All advisory committee
meetings shall be open to the public, except when the Office of the
General Counsel determines, in writing, and states his reasons therefor
prior to Federal Register notice, that a meeting or any part thereof, is
concerned with matters related to the exemptions provided in the Freedom
of Information Act, 5 U.S.C. 552(b). In such instances, those portions
of a committee meeting which come within the section 552(b) exemptions
may be closed to the public.
(h) Public participation in committee procedures. Interested persons
shall be permitted to file statements with advisory committees. Subject
to reasonable committee procedures, interested persons may also be
permitted to make oral statements on matters germane to the subjects
under consideration at the committee meeting.
Sec. 1430.9 Agency management of advisory committees.
Consistent with the other provisions of this part, the Service's
advisory committee management officer shall:
(a) Exercise control and supervision over the establishment,
procedures, and accomplishments of advisory committees established by
the Service;
(b) Assemble and maintain the reports, records, and other papers of
advisory committees, during their existence;
(c) Carry out, with the concurrence of the Office of the General
Counsel, the provisions of the Freedom of Information Act, as those
provisions apply to advisory committees;
(d) Have available for public inspection and copying all pertinent
documents of advisory committees which are within the purview of the
Freedom of Information Act; and
(e) When transcripts have been made of advisory committee meetings,
provide for such transcripts to be made available to the public at
actual cost of duplication, except where prohibited by contractual
agreements entered into prior to January 5, 1973, the effective date of
the Federal Advisory Committee Act.
PART 1440_ARBITRATION OF PESTICIDE DATA DISPUTES--Table of Contents
Sec.
1440.1 Arbitration of pesticide data disputes.
Appendix to Part 1440--FIFRA Arbitration Rules
Authority: Federal Insecticide, Fungicide, and Rodenticide Act (7
U.S.C. 136 et seq.), as amended, Pub. L. 95-396, 92 Stat. 819.
Source: 45 FR 55395, Aug. 19, 1980, unless otherwise noted.
Sec. 1440.1 Arbitration of pesticide data disputes.
(a) Persons requesting the appointment of an arbitrator under
section 3(c)(1)(D)(ii) and section 3(c)(2)(B)(iii) of the Federal
Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 136, as amended),
shall send such requests in writing to the appropriate American
Arbitration Association Regional Office. Such requests must include the
names, addresses, and telephone numbers of the parties to the dispute;
issue(s) in dispute, the amount in dollars or any other remedy sought;
sufficient facts to show that the statutory waiting period has passed,
and the appropriate fee provided in the Fee Schedule.
(b) For the purpose of compliance with the Federal Insecticide,
Fungicide, and Rodenticide Act (hereinafter ``the Act''), the roster of
arbitrators maintained by the Federal Mediation and Conciliation Service
shall be
[[Page 71]]
the roster of commerical arbitrators maintained by the American
Arbitration Association. Under this Act, arbitrators will be appointed
from that roster. The fees of the American Arbitration Association shall
apply, and the procedure and rules of the Federal Mediation and
Conciliation Service, applicable to arbitration proceedings under the
Act, shall be the FIFRA arbitration rules of the American Arbitration
Association, which are hereby made a part of this regulation.
Sec. Appendix to Part 1440--FIFRA Arbitration Rules
Section 1
These rules shall apply as published in the Federal Register unless
modified by FMCS.
Sec. 2. Definitions
For the purpose of these Rules of Procedure the terms are defined as
follows:
(1) AAA means the American Arbitration Association.
(2) Act or FIFRA means the Federal Insecticide, Fungicide, and
Rodenticide Act, 7 U.S.C. 136 et seq.
(3) EPA means the United States Environmental Protection Agency.
(4) Arbitrator(s) means the person or persons appointed to the
tribunal constituted by the parties for the settlement of their dispute
under these Rules.
(5) Claimant means a person asserting a claim for compensation under
these Rules or filing a claim concerning joint development of data.
(6) Compulsory arbitration means arbitration invoked under the
mandatory provisions of section 3(c)(1)(d) or 3(c)(2)(B)(iii) of the
Act.
(7) Voluntary arbitration means arbitration voluntarily agreed to by
the parties to settle a dispute under section 3(c)(1)(d) or
3(c)(2)(B)(iii) of the Act.
(8) Director means Director, Registration Division, Office of
Pesticide Programs, Environmental Protection Agency, or any officer or
employee of the EPA to whom authority has been or may hereafter be
lawfully delegated to act in his stead.
(9) Administator means the AAA, its Tribunal Administrators or such
officers or committees as the AAA may direct.
(10) Roster means the Commercial Arbitration Roster of AAA.
(11) FMCS or Service means the Federal Mediation and Conciliation
Service.
(12) Party means claimant or respondent.
(13) Person means any individual, partnership, association,
corporation, or any organized group of persons, whether incorporated or
not.
(14) Respondent means the person against whom a claim is made under
section 3(c)(1)(D) or 3(c)(2)(B)(iii) of the Act.
Terms defined in the Act and not explicitly defined herein are used
herein with the meanings given in the Act.
Sec. 3. Initiation of Arbitration
(a) Under compulsory procedures of FIFRA. Upon the request of a
party qualified under FIFRA section 3(c)(1)(D) or 3(c)(2)(B)(iii) for
the appointment of an arbitrator, the Service will appoint an arbitrator
in accordance with 29 CFR 1440.1 (a) and these rules. Requests shall be
submitted in writing to the appropriate AAA Regional Office and must
include the names, addresses and telephone numbers of the parties to the
dispute; issues in dispute; the amount in dollars or any other remedy
sought; sufficient facts to show that the statutory waiting period has
passed; and the appropriate fee as provided in the Fee Schedule.
AAA shall give notice of filing of a request for arbitration to the
other party. If he so desires, the party upon whom the demand for
arbitration is made may file an answering statement in duplicate with
AAA within seven days after notice, in which event he shall
simultaneously send a copy of his answer to the other party. If a
monetary claim is made in the answer the appropriate fee provided in the
Fee Schedule shall be forwarded with the answer. If no answer is filed
within the stated time, it will be assumed that the claim is denied.
Failure to file an answer shall not operate to delay the arbitration.
(b) Under a Voluntary Submission. Parties to any existing dispute
may commence an arbitration under these Rules by filing at any AAA
Regional Office two (2) copies of a written agreement to arbitrate under
these Rules (Submission), signed by the parties. It shall contain a
statement of the matter in dispute, the amount of money involved, if
any, and the remedy sought, together with the appropriate administrative
fee as provided in the Fee Schedule.
Sec. 4. Fixing of Locale
The parties may mutually agree on the locale where the arbitration
is to be held. If the locale is not designated within seven days from
the date of filing the Demand or Submission the AAA shall have power to
determine the locale. Its decision shall be final and binding. If any
party requests that the hearing be held in a specific locale and the
other party files no objection thereto within seven days after notice of
the requests, the locale shall be the one requested.
[[Page 72]]
Sec. 5. Qualification of Arbitrator
Any Arbitrator appointed pursuant to these rules shall be neutral,
subject to disqualification for the reasons specified in section 11. If
the agreement of the parties names an Arbitrator or specifies any other
method of appointing an Arbitrator, or if the parties specifically agree
in writing, such Arbitrator shall not be subject to disqualification for
said reasons.
Sec. 6. Appointment From Panel
If the parties have not appointed an Arbitrator and have not
provided any other method of appointment, the Arbitrator shall be
appointed in the following manner. Immediately after the filing of the
Request or Submission, the AAA shall submit simultaneously to each party
to the dispute an identical list of names of persons chosen from the
Panel. Each party to the dispute shall have seven days from the mailing
date in which to cross off any names to which he objects, number the
remaining names indicating the order of his preference, and return the
list to the AAA. If a party does not return the list within the time
specified, all persons named therein shall be deemed acceptable. From
among the persons who have been approved on both lists, and in
accordance with the designated order of mutual preference, the AAA shall
invite the acceptance of an Arbitrator to serve, and the Service shall
appoint the Arbitrator. If the parties fail to agree upon any of the
persons named, or if acceptable Arbitrators are unable to act, or if for
any other reason the appointment cannot be made from the submitted
lists, the FMCS shall have the power to make the appointment from other
members of the Panel without the submission of any additional lists.
Sec. 7. Direct Appointment by Parties
If the agreement of the parties to a Submission names an Arbitrator
or specifies a method of appointment of an Arbitrator, that designation
or method shall be followed. The notice of appointment, with name and
address of such Arbitrator, shall be filed with the AAA by the
appointing party. Upon the request of any such appointing party, the AAA
shall submit a list of members from the Panel from which the party may,
if he so desires, make the appointment.
If the agreement specifies a period of time within which an
Arbitrator shall be appointed, and any party fails to make such
appointment within that period, the AAA shall make the appointment.
Sec. 8. Appointment of Neutral Arbitrator by Party Appointed Arbitrators
If the parties have appointed their Arbitrators or if either or both
of them have been appointed as provided in section 7, and have
authorized such Arbitrators to appoint a neutral Arbitrator within a
specified time and no appointment is made within such time or any agreed
extension thereof, the FMCS shall appoint a neutral Arbitrator who shall
act as Chairman.
If no period of time is specified for appointment of the neutral
Arbitrator and the parties do not make the appointment within seven days
from the date of the appointment of the last party-appointed Arbitrator,
the FMCS shall appoint such neutral Arbitrator, who shall act as
Chairman.
If the parties have agreed that their Arbitrators shall appoint the
neutral Arbitrator from the Panel, the AAA shall furnish to the party-
appointed Arbitrators, in the manner prescribed in section 6, a list
selected from the Panel, and the appointment of the neutral Arbitrator
shall be made as prescribed in such section.
Sec. 9. Number of Arbitrators
If the arbitration agreement does not specify the number of
Arbitrators, the dispute shall be heard and determined by one
Arbitrator, unless the AAA in its discretion, directs that a greater
number of Arbitrators be appointed.
Sec. 10. Notice to Arbitrator of His or Her Appointment
Notice of the appointment of the neutral Arbitrator, whether
appointed by the parties, by the AAA or FMCS shall be mailed to the
Arbitrator, together with a copy of these Rules, and the signed
acceptance of the Arbitrator shall be filed with AAA prior to the
opening of the first hearing.
Sec. 11. Disclosure and Challenge Procedure
A person appointed as neutral Arbitrator shall disclose to the AAA
any circumstances likely to affect his or her impartiality, including
any bias or any financial or personal interest in the result of the
arbitration or any past or present relationship with the parties or
their counsel. Upon receipt of such information from such Arbitrator or
other source, the AAA shall communicate such information to the parties,
and, if it deems it appropriate to do so, to the Arbitrator. Thereafter,
the AAA shall make a determination whether the Arbitrator should be
disqualified. The determination, however, may be appealed to FMCS. The
decision of FMCS shall be conclusive.
Sec. 12. Vacancies
If any Arbitrator should resign, die, withdraw, refuse, be
disqualified, or be unable to perform the duties of his office, AAA may,
on proof satisfactory to it, declare the office vacant. Either party to
a compulsory arbitration may request the FMCS to review a declaration of
disqualification. Vacancies
[[Page 73]]
shall be filled in accordance with the applicable provision of these
Rules and the matter shall be reheard unless the parties shall agree
otherwise.
Sec. 13. Commencement of Proceeding
(a) Within 60 days from receipt by the parties of notice of the
appointment of an arbitrator, the claimant shall file with AAA:
(1) If appropriate, a detailed statement as to the amount of
compensation claimed, the method of computing said amount, and terms of
payment, and a list of the test data deemed to be compensable, together
with a detailed justification therefore.
(2) A certification as to: (i) Whether any court or tribunal has
made determinations for payment by any other persons to claimant for use
of the same test data and, if so, identification of the persons against
whom the 3(c)(2)(B) determinations were issued and the application for
registration for which the test data was used; and (ii) whether any
other claims against any persons are pending in arbitration or in any
court for use of the same test data and, if so, an identification of the
persons against whom the claims are pending and the applications for
registration on which the claims are being made.
(3) A detailed statement of the matter in dispute under 3(c)(2)(B).
(b) Within 60 days of service of the documents referred to in
subsection (a) the respondent shall file a detailed statement of its
position as to the amount of compensation due, method of computation,
terms of payment, and list of data deemed to be compensable together
with a detailed justification therefore or a detailed statement of the
dispute under 3(c)(2)(5). To the extent any portion of the claimant's
statement of its claim is not denied or challenged by respondent, it
shall be deemed admitted.
(c) After respondent's statement is filed, the arbitrator may, upon
request by a party, request the Director to supplement the file with
additional information, including copies of relevant test data,
information contained in a relevant registration file, a statement as to
data requirements for registration, or any other information which the
arbitrator deems to be relevant. Upon request by a party or other
interested person, the arbitrator shall order protective measures to
safeguard and restrict access to confidential business information.
Sec. 14. Filing and Service
(a) All documents or papers required or authorized to be filed,
shall be filed with the AAA for transmittal to the arbitrator, except as
otherwise herein provided, and shall bear the caption of the case and
the docket number. At the same time that a party files documents or
papers with the AAA, the party shall serve upon all other parties copies
thereof, with a certificate of service on or attached to each document
or paper, including those filed with the arbitrator. If a party is
represented by counsel or other representative, service shall be made on
such representative. Service may be made personally or by regular mail,
and if made by mail shall be deemed complete on mailing. If filing is
accomplished by mail addressed to the AAA, filing shall be deemed timely
if the papers are postmarked on the due date.
(b) All orders, decisions, or other documents made or signed by the
arbitrator shall be served immediately upon all parties.
Sec. 15. Time
(a) In computing any period of time prescribed or allowed by these
rules, except as otherwise provided, the day of the act, event, or
default from which the designated period of time begins to run shall not
be included. Saturdays, Sundays and legal holidays shall be included in
computing the time allowed for the filing of any document or paper,
except that when such time expires on a Saturday, Sunday, or legal
holiday, such period shall be extended to include the next following
business day.
(b) When by these rules or by order of the arbitrators, an act is
required or allowed to be done at or within a specified time, the
arbitrator or AAA for cause shown may at any time in their discretion
(1) with or without motion or notice, order the period enlarged if
request therefore, which may be made ex parte, is made before the
expiration of the period originally prescribed or as extended by a
previous order, or (2) on motion made after the expiration of the
specified period, permit the act to be done where the failure to act was
the result of excusable neglect or other good cause.
Sec. 16. Communication with Arbitrator and Serving of Notices
(a) There shall be no communication between the parties and a
neutral arbitrator other than at oral hearings. Any other oral or
written communications from the parties to the arbitrator shall be
directed to the AAA for transmittal to the arbitrator.
(b) Each party to an agreement which provides for arbitration under
these Rules shall be deemed to have consented that any papers, notices
or process necessary or proper for the initiation or continuation of an
arbitration under these Rules and for any court action in connection
therewith or for the entry of judgment on any award made thereunder may
be served upon such party by mail addressed to such party or his
attorney at his last known address or by personal service, within or
without the State wherein the arbitration is to be held (whether such
party be within or without the United States
[[Page 74]]
of America): Provided, That reasonable opportunity to be heard with
regard thereto has been granted such party.
Sec. 17. Time of Award
The award shall be made promptly by the arbitrator and, unless
otherwise agreed by the parties, or specified by law, no later than
thirty days from the date of closing the hearings, or if oral hearings
have been waived, from the date of transmitting the final statements and
proofs to the arbitrator.
Sec. 18. Appearances
(a) Parties may appear in person or by counsel or other
representative. Persons who appear as counsel or in a representative
capacity must conform to the standards of ethical conduct required of
practitioners before the courts of the United States.
(b) Any party to the proceeding who, after being duly notified and
without good cause being shown fails to appear at a prehearing
conference or fails to respond to correspondence, shall be deemed to
have waived his rights with respect thereto and shall be subject to such
orders or determinations with respect thereto as the arbitrator shall
make. The failure of a party to appear at a hearing shall constitute a
waiver of the right to present evidence at such hearing. Where either
party fails to appear at a hearing, the arbitrator shall require the
presentation by the present party of such evidence as he deems necessary
to prepare a decision in conformity with the requirements of the act.
(c) Any person having a direct interest in the arbitration is
entitled to attend hearings. The arbitrator shall otherwise have the
power to require the exclusion of any witness, other than a party or
other essential person, during the testimony of any other witness. It
shall be discretionary with the arbitrator to determine the propriety of
the attendance of any other person.
Sec. 19. Consolidation and Severance
(a) The AAA may with agreement of all parties consolidate any
matters at issue in two or more proceedings docketed under these Rules
of Procedure where there exist common parties, common questions of fact
and law, and where such consolidation would expedite or simplify
consideration of the issues. Consolidation may also be effected where
separate claims for use of the same test data are made against different
respondents. The arbitrator who presides over the consolidated
proceeding shall be chosen in accordance with section 3, supra.
(b) The arbitrator may, by motion or sua sponte, for good cause
shown order any proceeding severed with respect to some or all parties
or issues.
Sec. 20. Protection of Confidential Information
(a) The arbitrator shall make such orders as required to protect the
secrecy of confidential information or documents such as review in
camera.
(b) The arbitrator shall impose a sanction against any party who
violates an order issued under this section. Such sanction may include
an award against the offending party.
Sec. 21. Scheduling of Hearing
(a) After consideration of the convenience of the parties, the AAA
shall serve upon the parties a notice of hearing setting a time and
place for such hearing.
(b) Except for good cause shown, no request for postponement of a
hearing will be granted. Such request must be received in writing at
least a day in advance of the time set for the hearing. In case of
postponement, the hearing shall be rescheduled for a date as early as
circumstances will permit.
Sec. 22. Optional Accelerated Procedure
(a) In claims involving $25,000 or less, the parties may elect,
prior to commencement of hearing, to have the claim processed under an
expedited procedure. If no specific amount of claim is stated, a case
will be considered to fall within this rule if the amount which the
claimant represents in writing that it could recover as a result of any
arbitrator's decision favorable to it does not exceed $25,000. Upon such
election, a case shall then be processed under this rule unless the
respondent objects and shows good cause why the substantive nature of
the dispute requires processing under the regular procedures. In cases
proceeding under this rule, the parties have waived discovery and
briefs.
(b) The arbitrator shall schedule the dispute for hearing within
thirty (30) days of service of notice to the parties that the dispute
will be governed by this accelerated procedure, unless either party
requests that the case be submitted without hearing under section 19.
(c) Written decision by the arbitrators in cases proceeding under
this rule normally will be short and contain summary findings of fact
and conclusions only. The arbitrator shall render such decisions
promptly, but in no event later than thirty days after the dispute is
ready for decision.
Sec. 23. Discovery
(a) Either party may move for permission to serve written
interrogatories and requests for production of documents upon the
opposing party. The arbitrator shall grant such motion to the extent
that such interrogatories and requests are designed to produce relevant
evidence and only upon such terms as the arbitrator in his or her
discretion considers to be consistent with the objective of
[[Page 75]]
securing a just and inexpensive determination of the dispute without
unnecessary delay.
(b) Upon motion by either party, the arbitrator may order a
deposition upon a showing of good cause and a finding that the
deposition is designed to secure relevant and probative evidence which
(1) cannot be obtained by alternative means, or (2) may otherwise not be
preserved for presentation at hearing.
(c) If a party fails to comply with an order issued under this
section, the arbitrator shall draw inferences adverse to that party in
connection with the facts sought to be discovered.
(d) At least thirty days prior to the hearing, each party shall make
available to each other party the names of the expert and other
witnesses it intends to call, together with a detailed summary of their
expected testimony, and copies of all documents and exhibits which the
party intends to introduce into evidence. Thereafter, witnesses,
documents, or exhibits may be added and narrative summaries of expected
testimony amended only upon motion by a party for good cause shown.
Sec. 24. Prehearing Conference
(a) When it appears that such procedure will expedite the
preceeding, the arbitrator at any time prior to the commencement of the
hearing may request the parties and their counsel or other
representative to appear at a conference before him or her to consider:
(i) The possibility of settlement of the case;
(ii) The simplification of issues and stipulation of facts not
indispute;
(iii) The necessity or desirability of amending or supplementing
documents in the record;
(iv) The possibility of obtaining admissions or stipulations of fact
and of documents which will avoid unnecessary proof;
(v) The limitation of the number of expert or other witnesses;
(vi) The setting of a time and place for the hearing, giving
consideration to the convenience of all parties and to the public
interest; and
(vii) Any other matters as may expedite the disposition of the
proceeding.
(b) No transcript of any prehearing conference shall be made unless
ordered upon motion of a party or sua sponte by the arbitrator. In the
absence of a transcript, the arbitrator shall prepare and file a report
of the action taken at such conference. Such report shall incorporate
any written stipulations or agreements made by the parties, all rulings
upon matters considered at such conference, and appropriate orders
containing directions to the parties. Such report shall, as appropriate,
direct the subsequent course of the proceeding, unless modified by the
arbitrators on motion or sua sponte.
Sec. 25. Evidence
(a) The arbitrator shall admit all evidence which is relevant,
competent, material, not privileged, and not unduly repetitious. The
weight to be given evidence shall be determined by its reliability and
probative value.
(b) Except as otherwise provided in these Rules of Procedure or by
the arbitrator, witnesses shall be examined orally, under oath or
affirmation. Parties shall have the right to cross-examine a witness who
appears at the hearing provided that such cross-examination is not
unduly repetitious.
(c) Except where the arbitrator finds it impracticable, an original
and two copies of each exhibit shall be filed at the time the exhibit is
offered into evidence and a copy shall be furnished to each party. A
true copy of an exhibit may be substituted for the original.
(d) Official notice may be taken of any matter judicially noticed in
the Federal courts. The parties shall be given adequate opportunity to
show that such facts are erroneously noticed.
Sec. 26. Order of Proceedings
(a) Hearing shall be opened by the filing of the oath of the
arbitrator, and by the recording of the place, time and date of the
hearing, the presence of the arbitrator, parties, and counsel.
(b) The arbitrator may, at the beginning of the hearing, ask for
statements clarifying the issues involved. The claimant shall then
present his claim and proofs and his witnesses. The respondent shall
then present his response and proofs and his witnesses. The arbitrator
may in his descretion vary this procedure but he or she shall afford
full and equal opportunity to all parties for the presentation of any
material or relevant proofs.
Sec. 28. Burden of Presentation; Burden of Persuasion
The claimant shall have the burden of going forward to establish his
entitlement to an amount of compensation that respondent should pay for
use of the test data relied upon. Each matter of controversy shall be
decided by the arbitrator upon a preponderance of the evidence.
Sec. 29. Stenographic Record
Any party may request a stenographic record by making arrangements
for same through the AAA. If such transcript is agreed by the parties to
be, or in appropriate cases determined by the arbitrator to be, the
official record of the proceeding, it must be made available to the
arbitrator, and to the other party for inspection, at a time and place
determined by the arbitrator. The
[[Page 76]]
total cost of such a record shall be shared equally by those parties
that order copies.
Sec. 30. Filing of Briefs, Proposed Findings of Fact and Conclusions of
Law, and Proposed Order
Unless otherwise ordered by the arbitrator, each party may within
thirty days after delivery of the transcript of a hearing to the
arbitrator as provided in section 29, file with AAA and serve upon all
other parties a brief together with references to relevant exhibits and
the record. Within Fifteen days thereafter each party may file a reply
brief concerning matters contained in the opposing brief. Oral argument
may be had at the discretion of the arbitrator.
Sec. 31. Closing of Hearings
The Arbitrator shall inquire of all parties whether they have any
further proofs to offer or witnesses to be heard. Upon receiving
negative replies, the arbitrator shall declare the hearings closed and
the time and date shall be recorded. If briefs or other documents are to
be filed, the hearings shall be declared closed as of the final date set
by the arbitrator for filing with the AAA. The time limit within which
the Arbitrator is required to make the award shall commence to run, in
the absence of other agreement by the parties, upon the closing of the
hearings.
Sec. 32. Arbitrators' Decision
(a) The arbitrator shall as soon as practicable after the filing of
briefs evaluate the record and prepare and file a decision. The decision
shall contain findings of fact and conclusions regarding all issues in
dispute as well as reasons therefore.
(b) The decision shall contain a determination as to the
compensation, if any respondent must pay to claimant, or other remedy as
appropriate, the method of payment, and may fix such other terms and
conditions as may be reasonable under the circumstances, including the
furnishing of a bond or other guarantee of payment by the respondent to
the claimant.
Sec. 33. Reopening of Hearings
(a) The hearings may be reopened by the arbitrator on his or her own
motion, or upon application of a party at any time before the award is
made. If the reopening of the hearings would prevent the making of the
award within the specific time agreed upon by the parties in the
contract out of which the controversy has arisen, the matter may not be
reopened, unless the parties agree upon the extension of such time
limit. When no specific date is fixed, the arbitrator may reopen the
hearings, and the arbitrator shall have thirty days from the closing of
the reopened hearings within which to make an award.
(b) A motion to reopen a hearing to take further evidence, to rehear
or reargue any matter related to such proceeding, or to reconsider the
arbitrator's decision, must be made by motion in writing to the
arbitrator in accordance with these Rules of Procedure. Every such
motion must state the specific grounds upon which relief is sought.
(c) A motion to reopen a hearing for the purpose of taking further
evidence may be filed at any time prior to the issuance of the
arbitrator's decision. Such motion shall state briefly the nature and
purpose of the evidence to be adduced, shall show that such evidence is
not cumulative, and shall set forth a good reason why such evidence was
not adduced at a hearing.
(d) Motions to modify the arbitrator's decision shall be filed
within 30 days after the date of service of the decision. Such motion
must state specifically one of the following grounds for modification:
1. There was a miscalculation of figures or a mistake in the
description of any person, thing or property referred to in the award;
or
2. The arbitrators have awarded upon a matter not submitted to them
and the award may be corrected without affecting the merits of the
decision upon the issues submitted; or
3. The award is imperfect in a matter of form, not affecting the
merits of the controversy.
Sec. 34. Award Upon Settlement
If the parties settle their dispute during the course of the
arbitration, the arbitrator, upon their request, may set forth the terms
of the agreed settlement in an award.
Sec. 35. Delivery of Award to Parties
Parties shall accept as legal delivery of the award the placing of
the award or a true copy thereof in the mail by the AAA, addressed to
such party at his last known address or to his attorney, or personal
service of the award, or the filing of the award in any manner which may
be prescribed by law.
Sec. 36. Release of Documents for Judicial Proceedings
The AAA shall, upon the written request of a party, furnish to such
party, at his or her expense, certified facsimiles of any papers in the
AAA's possession that may be required in judicial proceedings relating
to the arbitration.
Sec. 37. Application to Court
(a) No judicial proceedings by a party relating to the subject
matter of the arbitration shall be deemed a waiver of the party's right
to arbitrate.
(b) Neither the AAA nor FMCS is a necessary party in judicial
proceedings relating to the arbitration.
[[Page 77]]
(c) Parties to these Rules shall be deemed to have consented that
judgment upon the arbitration award may be entered in any Federal or
State Court having jurisdiction thereof.
Sec. 38. Administrative Fees
As a nonprofit organization, the AAA shall prescribe an
administrative fee schedule and a refund schedule to compensate it for
the cost of providing administrative services. The schedule in effect at
the time of filing or the time of refund shall be applicable.
The administrative fees shall be advanced by the initiating party or
parties, subject to final appointment by the arbitrator in his award.
When a matter is withdrawn or settled, the refund shall be made in
accordance with the refund schedule.
The AAA, in the event of extreme hardship on the part of any party,
may defer or reduce the administrative fee.
Sec. 39. Fee When Oral Hearings Are Waived
Where all oral hearings are waived the Administrative Fee Schedule
shall apply.
Sec. 40. Expenses
The expenses of witnesses for either side shall be paid by the party
producing such witnesses.
The cost of the stenographic record, if any is made, and all
transcripts thereof, shall be prorated equally among all parties
ordering copies unless they shall otherwise agree and shall be paid for
by the responsible parties directly to the reporting agency.
All other expenses of the arbitration, including required traveling
and other expenses of the arbitrator and of AAA representatives, and the
expenses of any witness or the cost of any proofs produced at the direct
request of the arbitrator, shall be borne equally by the parties.
Sec. 41. Arbitrator's Fee
Any arrangement for the compensation of a neutral arbitrator shall
be made through the AAA and not directly by him or her with the parties.
Where parties cannot agree, AAA shall fix reasonable compensation.
Sec. 42. Deposits
The AAA may require the parties to deposit in advance such sums of
money as it deems necessary to defray the expense of the arbitration,
including the arbitrator's fee if any, and shall render an accounting to
the parties and return any unexpened balance.
Sec. 43. Interpretation and Application of Rules
The arbitrator shall interpret and apply these Rules insofar as they
relate to his or her powers and duties. When there is more than one
arbitrator and a difference arises among them concerning the meaning or
application of any such Rules, it shall be decided by a majority vote.
If that is unobtainable, either an arbitrator or a party may refer the
question to the AAA for decision. All other Rules shall be interpreted
and applied by the AAA. Either party may request that FMCS review any
decision of AAA on interpretation or application of these rules.
Administrative Fee Schedule
The administrative fee of the AAA is based upon the amount of each
claim and counterclaim as disclosed when the claim and counterclaim are
filed, and is due and payable at the time of filing.
------------------------------------------------------------------------
Amount of claim Fee
------------------------------------------------------------------------
Up to $25,000............................ $500.
$25,000 to $100,000...................... $600, plus 1% of excess over
$25,000.
$100,000 to $200,000..................... $1350, plus \1/2\% of excess
over $100,000.
$200,000 to $5,000,000................... $1850, plus \1/4\% of excess
over $200,000.
------------------------------------------------------------------------
Where the claim or counter claim exceeds $5 million, an appropriate
fee will be determined by the AAA.
When no amount can be stated at the time of filing, the
administrative fee is $500, subject to adjustment in accordance with the
above schedule as soon as an amount can be disclosed.
If there are more than two parties represented in the arbitration,
an additional 10% of the initiating fee will be due for each additional
represented party.
Other Service Charges--$50.00 payable by a party causing an
adjournment of any scheduled hearing;
$100 payable by a party causing a second or additional adjournment
of any scheduled hearing.
$25.00 payable by each party for each hearing after the first
hearing which is either clerked by the AAA or held in a hearing room
provided by the AAA.
Refund Schedule--If the AAA is notified that a case has been settled
or withdrawn before a list of Arbitrators has been sent out, all the
fees in excess of $500 will be refunded.
If the AAA is notified that a case has been settled or withdrawn
thereafter but before the due date for the return of the first list,
two-thirds of the fee in excess of $500.00 will be refunded.
If the AAA is notified that a case is settled or withdrawn
thereafter but at least 48 hours before the date and time set for the
first hearing, one-half of the fee in excess of $500 will be refunded.
[[Page 78]]
Regional Directors
Atlanta (30303), India Johnson--100 Peachtree Street, NW.
Boston (02108), Richard M. Reilly--294 Washington Street
Charlotte (28218), John A. Ramsey--3235 Eastway Drive, P.O. Box 18591
Chicago (60601), Charles H. Bridge, Jr.--180 N. La Salle Street
Cincinnati (45202), Philip S. Thompson--2308 Carew Tower
Cleveland (44114), Earle C. Brown--215 Euclid Avenue
Dallas (75201), Helmut O. Wolff--1607 Main Street
Detroit (48226), Mary A. Bedikian--1234 City National Bank Building
Garden City, NY (11530), Ellen Maltz-Brown--585 Stewart Avenue
Hartford (06103), J. Robert Haskell--37 Lewis Street
Los Angeles (90020), Jerrold L. Murase--443 Shatto Place
Miami (33129), Joseph A. Fiorillo--2250 SW. 3rd Avenue
Minneapolis (55402), Patricia A. Levin--1001 Foshay Tower
New Brunswick, NJ (08901), Richard Naimark--96 Bayard Street
New York (10020), Robert E. Meade--140 West 51st Street
Philadelphia (19102), Arthur R. Mehr--1520 Locust Street
Phoenix (85004), Paul A. Newnham--222 North Central Avenue
Pittsburgh (15222), John F. Schano--221 Gateway Four
San Diego (92101), John E. Scrivner--530 Broadway
San Francisco (94104), Charles A. Cooper--690 Market Street
Seattle (98104), Neal M. Blacker--810 Third Avenue
Syracuse (13203), Deborah A. Brown--731 James Street
Washington (20036), Garylee Cox--1730 Rhode Island Avenue, NW.
White Plains, NY (10601), John R. Dacey--34 South Broadway
PART 1450_COLLECTIONS OF CLAIMS OWED THE UNITED STATES--Table of Contents
Subpart A_General Provisions
Sec.
1450.1 Definitions.
1450.2 Exceptions.
1450.3 Use of procedures.
1450.4 Conformance to law and regulations.
1450.5 Other procedures.
1450.6 Informal action.
1450.7 Return of property.
1450.8 Omissions not a defense.
Subpart B_Administrative Offset_Consumer Reporting Agencies_Contracting
for Collection
1450.9 Demand for payment.
1450.10 Collection by administrative offset.
1450.11 Administrative offset against amounts payable from Civil Service
Retirement and Disability Fund.
1450.12 Collection in installments.
1450.13 Exploration of compromise.
1450.14 Suspending or termination collection action.
1450.15 Referrals to the Department of Justice or the General Accounting
Office.
1450.16 Use of consumer reporting agencies.
1450.17 Contracting for collection services.
Subpart C_Salary Offset
1450.18 Purpose.
1450.19 Scope.
1450.20 Definitions.
1450.21 Notification.
1450.22 Hearing.
1450.23 Deduction from pay.
1450.24 Liquidation from final check or recovery from other payment.
1450.25 Non-waiver of rights by payments.
1450.26 Refunds.
1450.27 Interest, penalties, and administrative costs.
1450.28 Recovery when paying agency is not creditor agency.
Subpart D_Interest, Penalties, and Administrative Costs
1450.29 Assessment.
1450.30 Exemptions.
1450.31 Other sanctions.
Authority: 31 U.S.C. 3701-3719; 5 U.S.C. 5514; 4 CFR parts 101-105;
5 CFR part 550.
Source: 51 FR 24817, July 9, 1986, unless otherwise noted.
Subpart A_General Provisions
Sec. 1450.1 Definitions.
(a) The term agency means the Federal Mediation and Conciliation
Service (FMCS) or any other agency of the U.S. Government as stated at
Sec. 1450.20.
(b) The term agency head means the Director of the Federal Mediation
and Conciliation Service.
(c) The terms appropriate agency official or designee mean the
Director of the Financial Management Staff of FMCS, or such other
official as may be named in the future by the Director of FMCS.
[[Page 79]]
(d) The terms claim and debt are deemed synonymous and
interchangeable. They refer to an amount of money or property which has
been determined by an appropriate agency official to be owed to the
United States from any person, organization or entity, except another
Federal agency.
(e) A debt is considered delinquent if it has not been paid by the
date specified in the agency's written notification or applicable
contractual agreement, unless other satisfactory payment arrangements
have been made by that date, or if at any time thereafter the debtor
fails to satisfy obligations under a payment agreement with the agency.
(f) The term referral for litigation means referral to the
Department of justice for appropriate legal proceedings.
Sec. 1450.2 Exceptions.
(a) Claims arising from the audit of transportation accounts
pursuant to 31 U.S.C. 3726 shall be determined, collected, compromised,
terminated or settled in accordance with regulations published under the
authority of 31 U.S.C. 3726 (see 41 CFR part 101-41).
(b) Claims arising out of acquisition contracts subject to the
Federal Acquisition Regulations (FAR) shall be determined, collected,
compromised, terminated, or settled in accordance with those
regulations. (See 48 CFR part 32). If not otherwise provided for in the
FAR system, contract claims that have been the subject of a contracting
officer's final decision in accordance with section 6(a) of the Contract
Disputes Act of 1978 (41 U.S.C. 605)(a)), may be determined, collected,
compromised, terminated or settled under the provisions of this
regulation, except that no additional review of the debt shall be
granted beyond that provided by the contracting officer in accordance
with the provisions of section 6 of the Contract Disputes Act of 1978
(41 U.S.C. 605), and the amount of any interest, administrative charge,
or penalty charge shall be subject to the limitations, if any, contained
in the contract out of which the claim arose.
(c) Claims based in whole or in part on conduct in violation of the
antitrust laws, or in regard to which there is an indication of fraud,
presentation of a false claim, or misrepresentation on the part of the
debtor or any other party having an interest in the claim, shall be
referred to the Department of Justice (DOJ) as only the DOJ has
authority to compromise, suspend, or terminate collection action on such
claims.
(d) Tax claims are also excluded from the coverage of this
regulation.
Sec. 1450.3 Use of procedures.
Procedures authorized by this regulation (including, but not limited
to, disclosure to a consumer reporting agency, contracting for
collection services, administrative offset and salary offset) may be
used singly or in combination, so long as the requirements of applicable
law and regulation are satisfied.
Sec. 1450.4 Conformance to law and regulations.
The requirements of applicable law (31 U.S.C 3701-3719 and 5 U.S.C.
5514 as amended by Pub. L. 97-365, 96 Stat. 1749) have been implemented
in Governmentwide standards:
(a) The Regulations of the Office of Personnel Management (5 CFR
part 550),
(b) The Federal Claims Collection Standards issued jointly by the
General Accounting Office and the Department of Justice (4 CFR parts
101-105), and
(c) The procedures prescribed by the Office of Management and Budget
in Circular A-129 of May 9, 1985.
Not every item in the above described standards has been incorporated or
referenced in this regulation. To the extent, however, that
circumstances arise which are not covered by the terms stated in this
regulation, FMCS will proceed in any actions taken in accordance with
applicable requirements found in the sources referred to in paragraphs
(a), (b), and (c) of this section.
Sec. 1450.5 Other procedures.
Nothing contained in this regulation is intended to require FMCS to
duplicate administrative proceedings required by contract or other laws
or regulations.
[[Page 80]]
Sec. 1450.6 Informal action.
Nothing contained in this regulation is intended to preclude
utilization of informal administrative actions or remedies which may be
available.
Sec. 1450.7 Return of property.
Nothing contained in this regulation is intended to deter FMCS from
demanding the return of specific property or from demanding, the return
of the property or the payment of its value.
Sec. 1450.8 Omissions not a defense.
The failure of FMCS to comply with any provision in this regulation
shall not serve as a defense to the debt.
Subpart B_Administrative Offset_Consumer Reporting Agencies_Contracting
for Collection
Sec. 1450.9 Demand for payment.
Prior to making an administrative offset, demand for payment will be
made as stated below:
(a) Written demands shall be made promptly upon a debtor in terms
which inform the debtor of the consequences of failure to cooperate. A
total of three progressively stronger written demands at not more than
30-day intervals will normally be made unless a response to the first or
second demand indicates that a further demand would be futile and the
debtor's response does not require rebuttal. In determining the timing
of demand letters, FMCS will give due regard to the need to act promptly
so that, as a general rule, if necessary to refer the debt to the
Department of Justice for litigation, such referral can be made within
one year of the agency's final determination of the fact and the amount
of the debt. When necessary to protect the Government's interest (for
example, to prevent the statute of limitations, 28 U.S.C. 2415, from
expiring), written demand may be preceded by other appropriate actions
under this subpart including immediate referral for litigation.
(b) The initial demand letter will inform the debtor of:
(1) The basis for the indebtedness and the right of the debtor to
request review within the agency;
(2) The applicable standards for assessing interest, penalties, and
administrative costs (subpart D of this regulation) and
(3) The date by which payment is to be made, which normally should
be not more than 30 days from the date that the initial demand letter
was mailed or hand-delivered. FMCS will exercise care to insure that
demand letters are mailed or hand-delivered on the same day that they
are actually dated. Apart from this, there is no prescribed format for
the demand letters.
(c) As appropriate to the circumstances, FMCS may include either in
the initial demand letter or in subsequent letters, matters relating to
alternative methods of payment, policies with respect to use of consumer
reporting agencies and collection services, the agency's intentions with
respect to referral of the debt to the Department of Justice for
litigation, and, depending on applicable statutory authority, the
debtor's entitlement to consideration of waiver.
(d) FMCS will respond promptly to communications from the debtor,
within 30 days whenever feasible, and will advise debtor who dispute the
debt that they must furnish available evidence to support their
contentions.
(e) If, either prior to the initiations of, at any time during, or
after completion of the demand cycle, FMCS determines to pursue
administrative offset, then the requirements specified in Sec. Sec.
1450.10 and 1450.11, as applicable, will be met. The availability of
funds for offset and the agency determination to purse it release the
agency from the necessity of further compliance with paragraphs (a),
(b), and (c) of this section. If the agency has not already sent the
first demand letter, the agency's written notification of its intent to
offset must give the debtor the opportunity to make voluntary payment, a
requirement which will be satisfied by compliance with the notice
requirements of Sec. Sec. 1450.10 and 1450.11 as applicable.
Sec. 1450.10 Collection by administrative offset.
(a) Collection by administrative offset will be undertaken in
accordance with these regulations on all claims
[[Page 81]]
which are liquidated or certain in amount, in every instance in which
such collection is determined to be feasible and not otherwise
prohibited.
(1) For purposes of this section, the term ``administrative offset''
is the same as stated in 31 U.S.C. 3716(a)(1).
(2) Whether collection by administrative offset is feasible is a
determination to be made by the agency on a case-by-case basis, in the
exercise of sound discretion. FMCS will consider not only whether
administrative offset can be accomplished practically, but also whether
offset is best suited to further and protect all of the Government's
interests. In appropriate circumstances, FMCS may give due consideration
to the debtor's financial condition and is not required to use offset in
every instance in which there is an available source of funds. FMCS may
also consider whether offset would tend to substantially interfere with
or defeat the purposes of the program authorizing the payments against
which offset is contemplated. For example, under a grant program in
which payments are made in advance of the grantee's performance, offset
will normally be inappropriate. This concept generally does not apply,
however, where payment is in the form of reimbursement.
(b) Before the offset is made, a debtor shall be provided with the
following: Written notice of the nature and amount of the debt, and the
agency's intention to collect by offset; opportunity to inspect and copy
agency records pertaining to the debt; opportunity to obtain review
within the agency of the determination of indebtedness; and opportunity
to enter into a written agreement with the agency to repay the debt.
FMCS may also make requests for offset to other agencies holding funds
payable to the debtor, and process requests for offset that are received
from other agencies.
(1) FMCS will exercise sound judgment in determining whether to
accept a repayment agreement in lieu of offset. The determination will
weigh the Government's interest in collecting the debt against fairness
to the debtor. If the debt is delinquent and the debtor has not disputed
its existence or amount, FMCS will normally accept a repayment agreement
in lieu of offset only if the debtor is able to establish that offset
would result in undue financial hardship or would be against equity and
good conscience.
(2) In cases where the procedural requirements specified in
paragraph (b) of this section have previously been provided to the
debtor in connection with the same debt under Sec. 1450.9, or some
other regulatory or statutory authority, such as pursuant to a notice of
audit allowance, the agency is not required to duplicate those
requirements before taking administrative offset.
(3) FMCS may not initiate administrative offset to collect a debt
under 31 U.S.C. 3716 more than 10 years after the Government's right to
collect the debt first accrued, unless facts material to the
Government's right to collect the debt were not known and could not
reasonably have been known by the official or officials of the
Government who were charged with the responsibility to discover and
collect such debts. When the debt first accrued is to be determined
according to existing law, regarding the accrual of debts, such as 28
U.S.C. 2415.
(4) FMCS is not authorized by 31 U.S.C. 3716 to use administrative
offset with respect to:
(i) Debts owed by any State or local Governments;
(ii) Debts arising under or payments made under the Social Security
Act, the Internal Revenue Code of 1954, or the tariff laws of the United
States; or
(iii) Any case in which collection of the type of debt involved by
administrative offset is explicitly provided for or prohibited by
another statute. However, unless otherwise provided by contract or law,
debts or payments which are not subject to administrative offset under
31 U.S.C. 3716 may be collected by administrative offset under the
common law or other applicable statutory authority.
(5) FMCS may effect administrative offset against a payment to be
made to a debtor prior to completion of the procedures required by
paragraph (b) of this section if:
(i) Failure to take the offset would substantially prejudice the
Government's ability to collect the debt, and
[[Page 82]]
(ii) The time before the payment is to be made does not reasonably
permit the completion of those procedures.
Such prior offset must be promptly followed by the completion of those
procedures. Amounts recovered by offset but later found not to be owed
to the Government shall be promptly refunded.
(6) FMCS will obtain credit reports on delinquent accounts to
identify opportunities for administrative offset of amounts due to a
delinquent debtor when other collection techniques have been
unsuccessful.
(c) Type of hearing or review: (1) For purposes of this section,
whenever FMCS is required to provide a hearing or review within the
agency, the agency shall provide the debtor with a reasonable
opportunity for an oral hearing when:
(i) An applicable statute authorizes or requires the agency to
consider waiver of the indebtedness involved, the debtor requests waiver
of the indebtedness, and the waiver determination turns on an issue of
credibility or veracity; or
(ii) The debtor requests reconsideration of the debt and the agency
determines that the question of the indebtedness cannot be resolved by
review of the documentary evidence, for example, when the validity of
the debt turns on an issue of credibility or veracity.
Unless otherwise required by law, an oral hearing under this section is
not required to be a formal evidentiary-type hearing, although the FMCS
will carefully document all significant matters discussed at the
hearing.
(2) This section does not require an oral hearing with respect to
debt collection systems in which determinations of indebtedness or
waiver rarely involve issues of credibility or veracity and the agency
has determined that review of the written record is ordinarily an
adequate means to correct prior mistakes. In administering such a
system, the agency is not required to sift through all of the requests
received in order to accord oral hearings in those few cases which may
involve issues of credibility or veracity.
(3) In those cases where an oral hearing is not required by this
section, the agency will make its determination on the request for
waiver or reconsideration based upon a ``paper hearing'' that is, a
review of the written record.
(d) Appropriate use will be made of the cooperative efforts of other
agencies in effecting collection by administrative offset. Generally,
FMCS will not refuse to comply with requests from other agencies to
initiate administrative offset to collect debts owed to the United
States, unless the requesting agency has not complied with the
applicable provisions of these standards or the offset would be
otherwise contrary to law.
(e) Collection by offset against a judgment obtained by a debtor
against the United States shall be accomplished in accordance with 31
U.S.C. 3728.
(f) Whenever the creditor agency is not the agency which is
responsible for making the payment against which administrative offset
is sought, the latter agency shall not initiate the requested offset
until it has been provided by the creditor agency with an appropriate
written certification that the debtor owes a debt (including the amount)
and that full compliance with the provisions of this section has taken
place.
(g) When collecting multiple debts by administrative offset, FMCS
will apply the recovered amounts to those debts in accordance with the
best interests of the United States, as determined by the facts and
circumstances of the particular case, paying special attention to
applicable statutes of limitations.
Sec. 1450.11 Administrative offset against amounts payable from Civil
Service Retirement and Disability Fund.
(a) Unless otherwise prohibited by law, FMCS may request that moneys
which are due and payable to a debtor from the Civil Service Retirement
and Disability Fund be administratively offset in reasonable amounts in
order to collect in one full payment, or a minimal number of payments,
debts owed to the United States by the debtor. Such requests shall be
made to the appropriate officials of the Office of Personnel Management
in accordance with such regulations as may be prescribed by the Director
of that Office.
(b) When making a request for administrative offset under paragraph
(a)
[[Page 83]]
of this section, FMCS shall include a written certification that:
(1) The debtor owes the United States a debt, including the amount
of the debt;
(2) The FMCS has complied with the applicable statutes, regulations,
and procedures of the Office of Personnel Management; and
(3) The FMCS has complied with the requirements of Sec. 1450.10 of
this subpart, including any required hearing or review.
(c) Once FMCS decides to request adminstrative offset under
paragraph (a) of this section, it will make the request as soon as
practical after completion of the applicable procedures in order that
the Office of Personnel Management may identify and ``flag'' the
debtor's account in anticipation of the time when the debtor requests or
become eligible to receive payments from the Fund. This will satisfy any
requirement that offset be initiated prior to expiration of the
applicable statute of limitations. At such time as the debtor makes a
claim for payments from the Fund, if at least a year has elapsed since
the offset request was originally made, the debtor should be permitted
to offer a satisfactory payment plan in lieu of offset upon establishing
that changed financial circumstances would render the offset unjust.
(d) If FMCS collects part or all of the debt by other means before
deductions are made or completed pursuant to paragraph (a) of this
section, FMCS shall act promptly to modify or terminate its request for
offset under paragraph (a) of this section.
(e) This section does not require or authorize the Office of
Personnel Management to review the merits of the FMCS determination with
respect to the amount and validity of the debt, its determination as to
waiver under an applicable statute, or its determination to provide or
not provide a hearing.
Sec. 1450.12 Collection in installments.
(a) Whenever feasible, and except as otherwise provided by law,
debts owed to the United States, together with interest, penalties, and
administrative costs as required by this regulation should be collected
in full in one lump sum. This is true whether the debt is being
collected by administrative offset or by another method, including
voluntary payment. However, if the debtor is financially unable to pay
the indebtedness in one lump sum, payment may be accepted in regular
installments. FMCS will obtain financial statements from debtors who
represent that they are unable to pay the debt in one lump sum. If FMCS
agrees to accept payment in regular installments it will obtain a
legally enforceable written agreement from the debtor which specifies
all of the terms of the arrangement and which contains a provision
accelerating the debt in the event the debtor defaults. The size and
frequency of installment payments should bear a reasonable relation to
the size of the debt and the debtor's ability to pay. If possible, the
installment payments should be sufficient in size and frequency to
liquidate the Government's claim in not more than 3 years. Installment
payments of less than $50 per month will be accepted only if justifiable
on the grounds of financial hardship or some other reasonable cause.
(b) If the debtor owes more than one debt and designates how a
voluntary installment payment is to be applied as among those debts,
that designation must be followed. If the debtor does not designate the
application of the payment, FMCS will apply payments to various debts in
accordance with the best interests of the United States, as determined
by the facts and circumstances of the particular case, paying special
attention to applicable statutes of limitations.
Sec. 1450.13 Exploration of compromise.
FMCS may attempt to effect compromise, preferably during the course
of personal interviews, in accordance with the standards set forth in
part 103 of the Federal Claims Collection Standards (4 CFR part 103).
Sec. 1450.14 Suspending or termination collection action.
The suspension or termination of collection action shall be made in
accordance with the standards set forth in part 104 of the Federal
Claims Collection Standards (4 CFR part 104).
[[Page 84]]
Sec. 1450.15 Referrals to the Department of Justice or the General Accounting Office.
Referrals to the Department of Justice or the General Accounting
Office shall be made in accordance with the standards set forth in part
105 of the Federal Claims Collection Standards (4 CFR part 105).
Sec. 1450.16 Use of consumer reporting agencies.
(a) The term individual means a natural person, and the term
``consumer reporting agency'' has the meaning provided in the Federal
Claims Collection Act, as amended, at 31 U.S.C. 3701(a)(3) or the Fair
Credit Reporting Act, at 15 U.S.C. 1681a(f).
(b) FMCS may disclose to a consumer reporting agency, from a system
of records, information that an individual is responsible for a claim
if--
(1) Notice required by section 5 U.S.C. 552(a)(e)(4) indicates that
information in the system may be disclosed to a consumer reporting
agency;
(2) The claim has been reviewed and it is decided that the claim is
valid and overdue;
(3) FMCS has notified the individual in writing--
(i) That payment of the claim is overdue;
(ii) That, within not less than 60 days after sending the notice,
FMCS intends to disclose to a consumer reporting agency that the
individual is responsible for that claim;
(iii) Of the specific information to be disclosed to the consumer
reporting agency; and
(iv) Of the rights the individual has to a complete explanation of
the claim, to dispute information in the records of the agency about the
claim, and to administrative appeal or review of the claim; and
(4) The individual has not--
(i) Repaid or agreed to repay the claim under a written repayment
plan that the individual has signed and the agency has agreed to; or
(ii) Filed for review of the claim under paragraph (g) of this
section;
(c) FMCS will also--(1) Disclose promptly, to each consumer
reporting agency to which the original disclosure was made, a
substantial change in the condition or amount of the claim;
(2) Verify or correct promptly information about the claim, on
request of a consumer reporting agency for verification of information
disclosed; and
(3) Get satisfactory assurances from each consumer reporting agency
that they are complying with all laws of the United States related to
providing consumer credit information; and assure that
(d) The information disclosed to the consumer reporting agency is
limited to (1) Information necessary to establish the identity of the
individual, including name, address, and taxpayer identification number;
(2) The amount, status, and history of the claim; and
(3) The agency or program under which the claim arose.
(e) All accounts in excess of $100 that have been delinquent more
than 31 days will normally be referred to a consumer reporting agency.
(f) Before disclosing information to a consumer reporting agency
FMCS shall take reasonable action to locate an individual for whom the
head of the agency does not have a current address to send the notice.
(g) Before disclosing information to a consumer reporting agency
FMCS shall provide, on request of an individual alleged by the agency to
be responsible for the claim, a review of the obligation of the
individual including an opportunity for reconsideration of the initial
decision on the claim.
(h) Under the same provisions as described above in this section,
FMCS may disclose to a credit reporting agency, information relating to
a debtor other than a natural person. Such commercial debt accounts are
not covered, however, by the Privacy Act.
Sec. 1450.17 Contracting for collection services.
(a) FMCS has authority to contract for collection services to
recover delinquent debts, provided that the following conditions are
satisfied;
(1) The authority to resolve disputes, compromise claims, suspend or
terminate collection action, and refer the
[[Page 85]]
matter for litigation is retained by the agency;
(2) The contractor shall be subject to the Privacy Act of 1974, as
amended to the extent specified in 5 U.S.C. 552a(m), and to applicable
Federal and State laws and regulations pertaining to debt collection
practices, such as the Fair Debt Collection Practices Act, 15 U.S.C.
1692;
(3) The contractor must be required to account strictly for all
amounts collected;
(4) The contractor must agree that uncollectible accounts shall be
returned with appropriate documentation to enable FMCS to determine
whether to pursue collection through litigation or to terminate
collection efforts, and
(5) The contractor must agree to provide any data contained in its
files relating to paragraphs (a) (1), (2), and (3) of Sec. 105.2 of the
Federal Claims Collection Standards (4 CFR part 105) upon returning an
account to FMCS for subsequent referral to the Department of Justice for
litigation.
(b) Funding of collection service contracts: (1) FMCS may fund a
collection service contract on a fixed-fee basis, that is, payment of a
fixed fee determined without regard to the amount actually collected
under the contract. Payment of the fee under this type of contract must
be charged to available agency appropriations.
(2) FMCS may also fund a collection service contract on a
contingent-fee basis, that is, by including a provision in the contract
permitting the contractor to deduct its fee from amounts collected under
the contract. The fee should be based on a percentage of the amount
collected, consistent with prevailing commercial practice.
(3) FMCS may enter into a contract under paragraph (b)(1) of this
section only if and to the extent provided in advance in its
appropriation acts or other legislation, except that this requirement
does not apply to the use of a revolving fund authorized by statute.
(4) Except as authorized under paragraph (b)(2) of this section, or
unless the receipt qualifies as a refund to the appropriation, or unless
otherwise specifically provided by law, FMCS must deposit all amounts
recovered under collection service contracts (or by agency employees on
behalf of the agency) in the Treasury as miscellaneous receipts pursuant
to 31 U.S.C. 3302.
(c) FMCS will consider the use of collection agencies at any time
after the account is 61 days past due. In all cases accounts that are
six months or more past due shall be turned over to a collection agency
unless referred for litigation or unless arrangements have been made for
a workout procedure, or the agency has exercised its authority to write
off the debt pursuant to Sec. 1450.14.
(d) FMCS will generally not use a collection agency to collect a
delinquent debt owed by a currently employed or retired Federal
employee, if collection by salary or annuity offset is available.
Subpart C_Salary Offset
Sec. 1450.18 Purpose.
This subpart provides the standards to be followed by FMCS in
implementing 5 U.S.C. 5514 to recover a debt from the pay account of an
FMCS employee, and establishes procedural guidelines to recover debts
when the employee's creditor and paying agencies are not the same.
Sec. 1450.19 Scope.
(a) Coverage. This subpart applies to agencies and employees as
defined by Sec. 1450.20.
(b) Applicability. This subpart and 5 U.S.C. 5514 apply in
recovering certain debts by offset, except where the employee consents
to the recovery, from the current pay account of that employee. Because
it is an administrative offset, debt collection procedures for salary
offset which are not specified in U.S.C. 5514 and these regulations
should be consistent with the provisions of the Federal Claims
Collection Standards (4 CFR parts 101-105).
(1) Excluded debts or claims. The procedures contained in this
subpart do not apply to debts or claims arising under the Internal
Revenue Code of 1954 as amended (26 U.S.C. 1 et seq.), the Social
Security Act (42 U.S.C. 301 et seq.) or the tariff laws of the United
States, or to any case where collection of a debt
[[Page 86]]
by salary offset is explicitly provided for or prohibited by another
statute (e.g., travel advances in 5 U.S.C. 5705 and employee training
expenses in 5 U.S.C. 4108).
(2) Waiver requests and claims to the General Accounting Office.
This subpart does not preclude an employee from requesting waiver of a
salary overpayment under 5 U.S.C. 5584, 10 U.S.C. 2774, or 32 U.S.C.
716, or in any way questioning the amount or validity of a debt by
submitting a subsequent claim to the General Accounting Office in
accordance with procedures prescribed by the General Accounting Office.
Similarly, in the case of other types of debts, it does not preclude an
employee from requesting waiver, if waiver is available under any
statutory provision pertaining to the particular debt being collected.
(c) Time limit. Under 4 CFR 102.3(b)(3), offset may not be initiated
more than 10 years after the Government's right to collect the debt
first accrued, unless an exception applies as stated in Sec.
102.3(b)(3).
Sec. 1450.20 Definitions.
For purposes of this subpart--
Agency means the Federal Mediation and Conciliation Service (FMCS)
or means any other agency of the U.S. Government as defined by section
105 of title 5 U.S.C., including the U.S. Postal Service, and the U.S.
Postal Rate Commission, a military department as defined by section 102
of title 5 U.S.C., an agency or court of the judicial branch, and an
agency of the legislative branch, including the U.S. Senate and the U.S.
House of Representatives.
Creditor agency means the agency to which the debt is owed.
Debt means an amount owed to the United States from sources which
include loans insured or guaranteed by the United States and all other
amounts due the United States from fees, leases, rents, royalties,
services, sales of real or personal property, overpayments, penalties,
damages, interests, fines and forfeitures (except those arising under
the Uniform Code Military Justice), and all other similar sources.
Disposable pay means that part of current basic pay, special pay,
incentive pay, retired pay, retainer pay, or in the case of an employee
not entitled to basic pay, other authorized pay remaining after the
deduction of any amount required by law to be withheld. FMCS will
exclude deductions described in 5 CFR 581.105 (b) through (f) to
determine disposable pay subject to salary offset.
Employee means a current employee of FMCS or of another agency,
including a current member of the Armed Forces or a Reserve of the Armed
Forces
FCCS means the Federal Claims Collection Standards jointly published
by the Justice Department and the General Accounting Office at 4 CFR
parts 101-105.
Paying agency means the agency employing the individual and
authorizing the payment of his or her current pay.
Salary offset means an administrative offset to collect a debt under
5 U.S.C. 5514 by deduction(s) at one or more officially established pay
intervals from the current pay account of an employee without his or her
consent.
Waiver means the cancellation, remission, forgiveness, or non-
recovery of a debt allegedly owed by an employee to an agency as
permitted or required by 5 U.S.C. 5584, 10 U.S.C. 2774, or 32 U.S.C.
710, 5 U.S.C. 8346(b), or any other law.
Sec. 1450.21 Notification.
(a) Salary offset deductions shall not be made unless the Director
of the Financial Management Staff of FMCS, or such other official as may
be named in the future by the Director of FMCS, provides to the
employee--at least 30 days before any deduction--a written notice
stating at a minimum:
(1) The agency's determination that a debt is owed, including the
origin, nature, and amount of the debt;
(2) The agency's intention to collect the debt by means of deduction
from the employee's current disposable pay account;
(3) The amount, frequency, proposed beginning date, and duration of
the intended deductions;
(4) An explanation of the agency's policy concerning interest,
penalties,
[[Page 87]]
and administrative costs (subpart D of this regulation), a statement
that such assessment must be made unless excused in accordance with the
FCCS;
(5) The employee's right to inspect and copy Government records
relating to the debt or, if the employee or his or her representative
cannot personnally inspect the records, to request and receive a copy of
such records;
(6) If not previously provided, the opportunity (under terms
agreeable to the agency) to establish a schedule for the voluntary
repayment of the debt or to enter into a written agreement to establish
a schedule for repayment of the debt in lieu of offset. The agreement
must be writing, signed by both the employee and the Director of the
Financial Management Staff of FMCS, and documented in agency files (4
CFR 102.11).
(7) The employee's right to a hearing conducted by an official
arranged by the agency (an administrative law judge or alternatively, a
hearing official not under the control of the head of the agency) if a
petition is filed as prescribed by Sec. 1450.22.
(8) The method and time period for petitioning for a hearing;
(9) That the timely filing of a petition for hearing will stay the
commencement of collection proceedings;
(10) That a final decision on the hearing (if one is requested) will
be issued at the earliest practical date, but not later than 60 days
after the filing of the petition requesting the hearing unless the
employee requests and the hearing official grants a delay in the
proceedings;
(11) That any knowingly false, misleading, or frivolous statements,
representations, or evidence may subject the employee to:
(i) Disciplinary procedures appropriate under chapter 75 of title 5,
U.S.C., part 752 of title 5, CFR, or any other applicable status or
regulations;
(ii) Penalties under the False Claims Act sections 3729-3731 of
title 31, U.S.C., or any other applicable statutory authority; or
(iii) Criminal penalties under sections 286, 287, 1001, and 1002 of
title 18, U.S.C., or any other applicable statutory authority.
(12) Any other right and remedies available to the employee under
statutes or regulations governing the program for which the collection
is being made; and
(13) Unless there are applicable contractual or statutory provisions
to the contrary, that amounts paid on or deducted for the debt which are
later waived or found not owned to the United States will be promptly
refunded to the employee.
(b) Notifications under this section shall be hand delivered with a
record made of the date and time of delivery, or shall be mailed by
certified mail return receipt requested.
(c) No notification, hearing, written responses or final decisions
under this regulation are required of FMCS for any adjustment to pay
arising out of an employee's election of coverage under a Federal
benefit program requiring periodic deductions from pay, if the amount to
be recovered was accumulated over four pay periods or less.
Sec. 1450.22 Hearing.
(a) Petition for hearing. (1) A hearing may be requested by filing a
written petition with the Director, Financial Management Staff of FMCS,
or such other official as may be named in the future by the Director of
FMCS, stating why the employee believes the determination of the agency
concerning the existence or the amount of the debt is in error.
(2) The employee's petition must be signed by the employee and fully
identify and explain with reasonable specificity all the facts, evidence
and witnesses, if any, which the employee believes support his or her
position.
(3) The petition must be filed no later than fifteen (15) calendar
days from the date that the notification was hand delivered or the date
of delivery by certified mail, return receipt requested.
(4) If a petition is received after the fifteen (15) calendar day
deadline referred to above, FMCS will nevertheless accept the petition
if the employee can show that the delay was because of circumstances
beyond his or her control, or because of failure to receive notice of
the time limit (unless otherwise aware of it).
[[Page 88]]
(5) If a petition is not filed within the time limit specified in
paragraph (a)(3) of this section, and is not accepted pursuant to
paragraph (a)(4) of this section, the employee's right to hearing will
be considered waived, and salary offset will be implemented by FMCS.
(b) Type of hearing. (1) The form and content of the hearing will be
determined by the hearing official who shall be a person outside the
control or authority of FMCS. In determining the type of hearing, the
hearing officer will consider the nature and complexity of the
transaction giving rise to the debt. The hearing may be conducted as an
informal conference or interview, in which the agency and employee will
be given a full opportunity to present their respective positions, or as
a more formal proceeding involving the presentation of evidence,
arguments and written submissions.
(2) The employee may represent himself or herself, or may be
represented by an attorney.
(3) The hearing official shall maintain a summary record of the
hearing.
(4) The decision of the hearing officer will be in writing, and will
state:
(i) The facts purported to evidence the nature and origin of the
alleged debt;
(ii) The hearing official's analysis, findings, and conclusions, in
the light of the hearing, as to--
(A) The employee's and/or agency's grounds,
(B) The amount and validity of the alleged debt and,
(C) The repayment schedule, if applicable.
(5) The decision of the hearing official shall constitute the final
administrative decision of the agency.
Sec. 1450.23 Deduction from pay.
(a) Deduction by salary offset, from an employee's current
disposable pay, shall be subject to the following conditions:
(1) Ordinarily, debts to the United States should be collected in
full, in one lump-sum. This will be done when funds are available.
However, if funds are unavailable for payment in one lump sum, or if the
amount of the debt exceeds 15 percent of disposable pay for an
officially established pay interval, collection will normally be made in
installments.
(2) The installments shall not exceed 15 percent of the disposable
pay from which the deduction is made, unless the employee has agreed in
writing to the deduction of a greater amount.
(3) Deduction will generally commence with the next full pay
interval (ordinarily the next biweekly pay period) following written
consent by the employee to salary offset, waiver of hearing, or the
decision issued by the hearing officer.
(4) Installment deductions must be made over a period not greater
than the anticipated period of employment except as provided in Sec.
1450.24.
Sec. 1450.24 Liquidation from final check or recovery from other payment.
(a) If the employee retires or resigns or if his or her employment
or period of active duty ends before collection of the debt is
completed, offset of the entire remaining balance on the debt may be
made from a final payment of any nature, including but not limited to,
final salary payment or lump-sum leave due to the employee as of the
date of separation.
(b) If the debt cannot be liquidated by offset from a final payment,
offset may be made from later payments of any kind due from the United
States, including, but not limited to, the Civil Service Retirement and
Disability Fund, pursuant to Sec. 1450.11 of this regulation.
Sec. 1450.25 Non-waiver of rights by payments.
An employee's involuntary payment of all or any portion of a debt
being collected under 5 U.S.C. 5514 shall not be construed as a waiver
of any rights which the employee may have under 5 U.S.C. 5514 or any
other provision of contract or law, unless statutory or contractual
provisions provide to the contrary.
Sec. 1450.26 Refunds.
(a) Refunds shall promptly be made when--
(1) A debt is waived or otherwise found not owing to the United
States (unless expressly prohibited by statute or regulation); or
[[Page 89]]
(2) The employee's paying agency is directed by an administrative or
judicial order to refund amounts deducted from his or her current pay.
(b) Refunds do not bear interest unless required or permitted by law
or contract.
Sec. 1450.27 Interest, penalties, and administrative costs.
The assessment of interest, penalties and administrative costs shall
be in accordance with subpart D of this regulation.