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.)