803 Kar 3:050. Arbitration

Link to law: http://www.lrc.ky.gov/kar/803/003/050.htm
Published: 2015

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      803 KAR 3:050. Arbitration.

 

      RELATES TO: KRS 336.1661, 336.1662,

336.1663

      STATUTORY AUTHORITY: KRS 336.1664

      NECESSITY, FUNCTION, AND CONFORMITY: KRS

336.1664 requires the commissioner to promulgate administrative regulations to

effectuate the purposes of the statutes relating to arbitration of labor

disputes. The function of this administrative regulation is to set forth

criteria for the appointment of arbitrators, maintaining a roster of arbitrators,

procedure for obtaining arbitration services, fee schedule and reporting requirements,

and any other matter relating to the arbitration of labor disputes.

 

      Section 1. Scope. This administrative

regulation applies to all arbitrators listed on the roster of arbitrators

maintained by the commissioner, to all applicants for listing on the roster,

and to all persons or parties seeking to obtain from the commissioner either

names or panels of names of arbitrators listed on the roster in connection with

labor disputes which are to be submitted to arbitration or fact-finding.

 

      Section 2. Listing on the Roster.

Criteria for listing and retention.

      (1) Persons seeking to be listed on the

roster shall complete and submit an application form which may be obtained from

the Kentucky Department of Labor, Division of Employment Standards and Mediation.

Upon receipt of an executed form, the secretary or his representative shall

review the application, assure that it is complete, make such inquiries as are

necessary. The secretary may appoint two (2) members representing management

and two (2) members representing labor of the Kentucky Labor-Management

Advisory Council to assist in determining whether an applicant shall be listed

on the roster. The secretary or his representative shall make all final

decisions as to whether an applicant will be listed. Each applicant shall be

notified in writing of the secretary's decision and the reasons therefor.

      (2) Applicants for the roster will be

listed on the roster upon a determination that they:

      (a) Are competent and acceptable in decision-making

roles in the resolution of labor relations issues, or have extensive experience

in relevant positions in collective bargaining; and

      (b) Are capable of conducting an orderly

hearing, can analyze testimony and exhibits and can prepare clear and concise

findings and awards within reasonable time limits; and

      (c) Possess the factors of background and

experience, availability, acceptability, geographical location, and the

expressed preferences of the parties, or a combination thereof, which demonstrate

that inclusion on the roster will lead to a useful role in resolving disputes.

      (3) No person shall serve as an

arbitrator in any arbitration in which he has any financial or personal

interest in the result of the arbitration. No person shall serve as an

arbitrator to disputes which involves a labor organization or employer for

which he performs services or receives income. Any individual who has personal

or financial relationships which may result in a conflict of interest in any

future arbitration shall disclose such relationships to the secretary or his

representative and biographical data furnished to the parties shall disclose

such information. The secretary or his representative may restrict the panels

on which a person may serve to avoid conflicts of interest or the appearance of

impropriety, however the parties after full disclosure, may waive the

disqualification in writing.

      (4) The commissioner or his

representative is authorized to give written notice or cancellation to a member

on the roster whenever the member:

      (a) No longer meets the criteria for

admission;

      (b) Has been repeatedly and/or flagrantly

delinquent in submitting awards;

      (c) Has refused to make reasonable and

periodic reports to the commissioner of his representative concerning

activities pertaining to arbitration;

      (d) Has been the subject of complaints by

parties who use the service, and the commissioner or his representative, after

appropriate inquiry, concludes that just cause for cancellation has been shown;

      (e) Is determined by the commissioner or

his representative to be unacceptable to a substantial number of parties who

use the service. The commissioner or his representative may base a

determination of unacceptability on the agency's records showing the number of

times the arbitrator's name has been proposed to the parties and the number of

times it has been selected.

      (5) A member of the arbitration roster

may request review of the notification or cancellation by submitting his

response in writing to the commissioner or his representative within ten (10)

days after receipt of the notice of cancellation. The commissioner or his

representative may conduct an inquiry of the circumstances of the proposed

cancellation and shall then submit written findings and a conclusion to the

interested party. This decision shall be the final decision of the commissioner.

 

      Section 3. Procedures for Requesting

Arbitration Services. (1) The parties are urged to use the request for

arbitration form which has been prepared by the commissioner or his

representative and is available from the Kentucky Department of Labor, Division

of Employment Standards and Mediation. A brief statement of the issues in

dispute should accompany the request to enable the commissioner or his

representative to submit the names of arbitrators qualified for the issues

involved. The request should also include a current copy of the arbitration

section of the collective bargaining agreement or stipulation to arbitrate. The

request for arbitration form and supporting documents shall be submitted to the

Kentucky Department of Labor, Division of Employment Standards and Mediation, Frankfort,

Kentucky 40601. The parties are encouraged to submit joint requests for

arbitration.

      (2) If the request for arbitration form

is not utilized, the parties may request a panel or designation by letter. The

letter shall include the names, addresses, and phone numbers of the parties,

the location of the contemplated hearing, the issue in dispute, the number of

names desired on the panel or that it is requested that the commissioner or his

representative designate an arbitrator, and any special qualifications of the

panel or designee desired. The request should also include a copy of the

arbitration section of the collective bargaining agreement or stipulation to

arbitrate.

      (3) In the event that the request is made

by only one (1) party, the commissioner or his representative will submit a

panel; however, any submission of a panel shall merely be a compliance with a

request and shall not reflect any contractual requirements of the parties.

 

      Section 4. Nomination of Arbitrators. (1)

The commissioner or his representative shall designate an arbitrator to a labor

dispute upon request by the parties or a request pursuant to an agreement which

does not require the commissioner or his representative to provide a panel.

      (2) The commissioner or his

representative shall refer a panel of arbitrators to the parties upon request

or a request pursuant to an agreement that calls for the commissioner to provide

a panel.

      (a) The commissioner or his

representative shall submit to the parties the names of five (5) arbitrators

unless the applicable collective bargaining agreement requires a different

number on a panel, or unless the parties themselves request a different number,

or unless the agreement or stipulation calls for the commissioner or his representative

to designate the arbitrator.

      (b) Together with a submission of a

panel, the commissioner or his representative shall provide a biographical

sketch for each member of the panel which provides a summary of the background,

qualifications, and experience of the arbitrator.

      (3) The commissioner or his

representative considers many factors when selecting names for inclusion on a

panel or for designation to a dispute, but the agreed-upon wishes of the

parties are paramount. Special qualifications of arbitrators experienced in

certain issues or industries, or possessing certain backgrounds, may be identified

for purposes of submitting panels or designating an arbitrator to accommodate

the parties. The commissioner or his representative may also consider such

things as general acceptability, geographical location, general experience,

availability, and the need to expose new arbitrators to the selection process in

preparing panels or designating arbitrators. The commissioner or his representative

has no obligation to put an individual on any given panel or to designate an

individual or place him on a minimum number of panels in any fixed period.

      (a) If at any time all parties request

for valid reasons, that a name or names be omitted from panels or from

designation, such name or names shall be omitted.

      (b) If at any time all parties request

that a name or names be included on a panel or be designated, such name or

names shall be included.

      (c) If only one (1) party requests that a

name or names be omitted from a panel, or that a name or names be added to the

panel, or that an individual be designated or not be designated to a dispute,

such request will not be honored.

 

      Section 5. Selection and Appointment of

Arbitrators. (1) The parties should notify the commissioner or his

representative of the agreed selection of an arbitrator. The arbitrator, if

notified by the parties, shall notify the commissioner or his representative of

his selection and willingness to serve. Upon notification of the parties

selection of an arbitrator, the commissioner or his representative shall make a

formal appointment of the arbitrator.

      (2) Where the contract is silent on the

method of selecting an arbitrator, the parties may choose one (1) of the

following methods for selection of an arbitrator from a panel:

      (a) Each party alternately strikes a name

from the submitted panel until one (1) remains.

      (b) Each party advises the commissioner

or his representative of its order of preference by numbering each name on the

panel and submitting the numbered list in writing to the commissioner or his representative.

The name on the panel that has the lowest accumulated numerical number will be

appointed.

      (c) Informal agreement of the parties by

whatever method they choose.

      (3) The commissioner or his

representative shall, on joint or unilateral request of the parties, submit a

panel or, when the applicable collective bargaining agreement authorizes, shall

make a direct appointment of an arbitrator. Submission of a panel or name

signifies nothing more than compliance with a request and it shall not

constitute a determination by the commissioner or his representative that the

parties are obligated to arbitrate the dispute in question. Resolution as to

the propriety of such a submission or appointment rests solely with the

parties.

      (4) The arbitrator, upon notification of

appointment, shall communicate with the parties immediately to arrange for preliminary

matters, such as date and place of hearing. Hearings shall be held within ten

(10) days of the date of appointment, unless otherwise agreed by the parties.

 

      Section 6. Conduct of Hearing. All

proceedings conducted by the arbitrator shall be in conformity with the

contractual obligations of the parties, unless otherwise agreed. Unless the

contract or the parties require otherwise, the proceedings shall be conducted

pursuant to the following rules:

      (1) Time and place of hearing. The

arbitrator shall fix the time and place for each hearing. At least five (5)

days prior thereto the arbitrator shall mail notice of the time and place of

hearing to each party, unless the parties otherwise agree.

      (2) Representation by counsel. Any party

may be represented at the hearing by counsel or by other authorized

representative.

      (3) Stenographic record. Any party may

request a stenographic record by making arrangements for same through the

arbitrator. 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 proceedings,

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 total cost of

such a record shall be shared equally by those parties ordering copies.

      (4) Attendance at hearing. Persons having

a direct interest in the arbitration are entitled to attend hearings. The

arbitrator shall have the power to require the retirement of any witness or

witnesses during the testimony of other witnesses. It shall be discretionary

with the arbitrator to determine the propriety of the attendance of any other

persons.

      (5) Adjournments. The arbitrator for good

cause shown may adjourn the hearing upon the request of a party or upon his own

initiative, and shall adjourn when all the parties agree thereto.

      (6) Oaths. The arbitrator may, in his

discretion, require witnesses to testify under oath administered by any duly

qualified person, and if required by law or requested by either party, shall do

so.

      (7) Majority decision. Whenever there is

more than one (1) arbitrator, all decisions of the arbitrators shall be by

majority vote. The award shall also be made by majority vote unless the

concurrence of all is expressly required.

      (8) Order of proceeding. A hearing shall

be opened by the recording of the place, time and date of hearing, the presence

of the arbitrator and parties, and counsel if any, and the receipt by the arbitrator

of any pleadings. Exhibits, when offered by either party, may be received in

evidence by the arbitrator. The names and addresses of all witnesses and

exhibits in order received shall be made a part of the record. The arbitrator

may, in his discretion, vary the normal procedure under which the initiating

party first presents his claim, but in any case shall afford full and equal

opportunity to all parties for presentation of relevant proofs.

      (9) Arbitration in the absence of a

party. The arbitration may proceed in the absence of any party, who, after due

notice, fails to be present or fails to obtain an adjournment. An award shall

not be made solely on the default of a party. The arbitrator shall require the

other party to submit such evidence as he may require for the making of an

award.

      (10) Evidence. The parties may offer such

evidence as they desire and shall produce such additional evidence as the

arbitrator may deem necessary to an understanding and determination of the

dispute. Upon agreement of the parties, the arbitrator may issue subpoenas to

compel the attendance of witnesses and parties and the production of books,

papers, and records which may be deemed material as evidence in the case. The

arbitrator shall be the judge of the relevancy and materiality of the evidence

offered and conformity to legal rules of evidence shall not be necessary. All

evidence shall be taken in the presence of the arbitrator and all the parties

except where any of the parties is absent, in default, or has waived his right

to be present.

      (11) Evidence by affidavit and filing of

document. The arbitrator may receive and consider the evidence of witnesses by

affidavit, but shall give it only such weight as he deems proper after

consideration of any objections made to its admission. All documents not filed

with the arbitrator at the hearing but which are arranged at the hearing or

subsequently by agreement of the parties to be submitted, shall be filed with

the arbitrator. All parties shall be afforded the opportunity to examine such

documents.

      (12) Inspection. Whenever the arbitrator

deems it necessary, he may make an inspection in connection with the subject

matter of the dispute after written notice to the parties who may, if they so

desire, be present at such inspection.

      (13) Closing of hearing. The arbitrator shall

inquire of all parties whether they have any further proof to offer or

witnesses to be heard. Upon receiving negative replies, the arbitrator shall

declare the hearings closed and a minute thereof 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.

      (14) Opinions and awards. The opinion and

decision on each case submitted to an arbitrator under this administrative

regulation shall be issued within ten (10) days of the closing of record,

unless otherwise agreed by the parties.

      (15) Reopening of hearings. The hearings

may be reopened by the arbitrator on his own motion, or on the motion of either

party, for good cause shown, at any time before the award is made, but if the

reopening of the hearing would prevent the making of the award within the

specific time agreed upon by the parties in the contract of which the

controversy has arisen, the matter may not be reopened, unless both parties

agree upon the extension of such time limit.

      (16) Waiver of rules. Any party who

proceeds with the arbitration after knowledge that any provision or requirement

of these rules has not been complied with and who fails to state his objection

thereto in writing, shall be deemed to have waived his right to object.

      (17) Waiver of oral hearings. The parties

may provide, by written agreement, for the waiver of oral hearings. If the

parties are unable to agree as to the procedure, the arbitrator shall specify a

fair and equitable procedure.

      (18) Extension of time. The parties may

modify any period of time by mutual agreement. The arbitrator for good cause

may extend any period of time established by these rules, except the time for

making the award. The arbitrator shall notify the parties of any such extension

of time and its reason therefor.

      (19) Form of award. The award shall be in

writing and shall be signed either by the neutral arbitrator or by a concurring

majority if there is more than one (1) arbitrator, unless otherwise agreed by

the parties. The parties shall advise the arbitrator whenever they do not

require the arbitrator to accompany the award with an opinion.

      (20) 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.

      (21) 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 arbitrator addressed to such party at

his last known address or to his attorney, or personal service of the award.

      (22) Release of documents for judicial

proceedings. The arbitrator shall, upon the written request of a party, furnish

to such party at his expense certified copies of any papers in the arbitrator's

possession that may be required in judicial proceedings relating to the

arbitration.

      (23) Judicial proceedings. The arbitrator

is not a necessary party in judicial proceedings relating to the arbitration.

      (24) Fees and charges of arbitrators. An

arbitrator shall not be permitted to charge in excess of $400 a day, not to

exceed $2,000 per arbitration case.

      (25) Expenses. The expense of witnesses

for either side shall be paid by the party producing such witnesses. Expenses

of the arbitration, other than the cost of the stenographic record, including

required traveling and other expenses of the arbitrator, and the expenses of

any witnesses or the cost of any proofs produced at the direct request of the

arbitrator, shall be borne equally by the parties unless they agree otherwise,

or unless the arbitrator in his award assesses such expenses or any part

thereof against any specified party or parties.

      (26) Interpretation and application of

rules. The arbitrator shall interpret and apply these rules insofar as they

relate to his powers and duties. When there is more than one (1) arbitrator and

a difference arises among them concerning the meaning or application of any

such rules, it shall be decided by majority vote. If that is unobtainable,

either arbitrator or party may refer the question to the secretary for final

decision.

 

      Section 7. Hearings and Records

Confidentiality. Hearings conducted under this administrative regulation remain

private hearings of the parties and are not subject to any open meeting act

provisions contained in any statute. Records obtained by an arbitrator remain

private records of the parties and are not subject to any open records act

provisions contained in any statute. The commissioner or his representative

does not require or request that an arbitrator report to the state, or the

department violations of any state statutes revealed or that agreements be

interpreted to conform to the state or department position on any matter of

law.

 

      Section 8. Reports. (1) Arbitrators

listed on the roster shall execute and return all documents, forms and reports

required by the commissioner or his representative. They shall also keep the commissioner

or his representative 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.

      (2) The commissioner or his

representative shall require each arbitrator listed on the roster to prepare

biographical information at the time of the initial listing and to periodically

update and revise the biographical sketches to replace changes in relevant

data. The commissioner or his representative shall decide and approve the

format and content of the biographical sketches. (13 Ky.R. 1012; eff. 12-2-86;

Am. 24 Ky.R. 2163; eff. 7-13-98; TAm eff. 8-9-2007.)