803 KAR 3:050. Arbitration.
RELATES TO: KRS 336.1661, 336.1662,
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
(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
(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
(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) 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
(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
(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
(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
(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
(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
(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
(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
(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
(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
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
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
(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.)