CODE OF PROFESSIONAL
RESPONSIBILITY
FOR ARBITRATORS OF
LABOR-MANAGEMENT DISPUTES
OF
THE
AMERICAN ARBITRATION
ASSOCIATION
FEDERAL MEDIATION AND
CONCILIATION SERVICE
As amended and
in effect May 2007
FOREWORD
This "Code of Professional Responsibility for Arbitrators of
Labor-Management Disputes" supersedes the "Code of Ethics and
Procedural Standards for Labor-Management Arbitration," approved in 1951
by a Committee of the American Arbitration Association, by the National Academy
of Arbitrators, and by representatives of the Federal Mediation and
Conciliation Service.
Revision of the 1951 Code was initiated officially by the same
three groups in October, 1972. The
following members of a Joint Steering Committee were designated to draft a
proposal:
Chair
William E. Simkin
Representing American Arbitration
Association
Frederick H. Bullen
Donald B. Straus
Representing Federal Mediation and
Conciliation Service
L. Lawrence Schultz
Representing
Sylvester Garrett
Ralph T. Seward
The proposal of the Joint Steering Committee was issued on
November 30, 1974, and thereafter adopted by all three sponsoring
organizations. Reasons for Code revision
should be noted briefly. Ethical
considerations and procedural standards were deemed to be sufficiently
intertwined to warrant combining the subject matter of Parts I and II of the 1951
Code under the caption of "Professional Responsibility." It also seemed advisable to eliminate
admonitions to the parties (Part III of the 1951 Code) except as they appear
incidentally in connection with matters primarily involving responsibilities of
arbitrators. The substantial growth of
third-party participation in dispute resolution in the public sector required
consideration, as did the fact that the arbitration of new contract terms had
become more significant. Finally, during
the interval of more than two decades, new problems had emerged as
private-sector grievance arbitration matured and became more diversified.
In 1985, the provisions of 2 C. 1. c. were amended to specify
certain procedures, deemed proper, which could be followed by an arbitrator
seeking to determine if the parties are willing to consent to publication of an
award.
In 1996, the wording of the Preamble was amended to reflect the
intent that the provisions of the Code apply to covered arbitrators who agree
to serve as impartial third parties in certain arbitration and related
procedures, dealing with the rights and interests of employees in connection
with their employment and/or representation by a union. Simultaneously, the provisions of 2 A. 3.
were amended to make clear that an arbitrator has no obligation to accept an
appointment to arbitrate under dispute procedures adopted unilaterally by an
employer or union and to identify additional disclosure responsibilities for
arbitrators who agree to serve under such procedures.
In 2001, the provisions of 1 C. were amended to eliminate the
general prohibition of advertising, along with certain qualifying statements
added in 1996, and replace it with a provision that permits advertising except
that which is false or deceptive.
In 2003, 1 C. was amended further to reflect that the same
standard applies to written solicitations of arbitration work, but that care
must be taken to avoid compromising or giving the appearance of compromising
the arbitrator's neutrality.
In 2007, a provision on
Retaining Remedial Jurisdiction was added to 6 and designated as 6 E., with the
former 6 E. (on Enforcement of Award) being redesignated as 6 F.
TABLE OF
CONTENTS
FOREWORD
TABLE OF CONTENTS
PREAMBLE
1. ARBITRATOR'S
QUALIFICATIONS AND RESPONSIBILITIES TO THE PROFESSION
A. General
Qualifications
B. Qualification
for Special Cases
C. Responsibilities
to the Profession
2. RESPONSIBILITIES TO THE
PARTIES
A. Recognition
of Diversity in Arbitration Arrangements
B. Required
Disclosures
C. Privacy
of Arbitration
D. Personal
Relationships with the Parties
E. Jurisdiction
F. Mediation
by an Arbitrator
G. Reliance
by an Arbitrator on Other Awards
H. Use
of Assistants
I. Consent
Awards
J. Avoidance
of Delay
K. Fees
and Expenses
3. RESPONSIBILITIES TO
ADMINISTRATIVE AGENCIES
A. General Responsibilities
4. PREHEARING CONDUCT
5. HEARING CONDUCT
A. General
Principles
B. Transcripts
or Recordings
C. Ex
Parte Hearings
D. Plant
Visits
E. Bench
Decisions or Expedited Awards
6. POST HEARING CONDUCT
A. Post
Hearing Briefs and Submissions
B. Disclosure
of Terms of Award
C. Awards
and Opinions
D. Clarification
of Interpretation or Awards
E.
Retaining Remedial Jurisdiction
F. Enforcement
of Award
PREAMBLE
Background
The provisions of this Code deal with the voluntary arbitration of
labor-management disputes and certain other arbitration and related procedures
which have developed or become more common since it was first adopted.
Voluntary arbitration rests upon the mutual desire of management
and labor in each collective bargaining relationship to develop procedures for
dispute settlement which meet their own particular needs and obligations. No two voluntary systems, therefore, are
likely to be identical in practice.
Words used to describe arbitrators (Arbitrator, Umpire, Impartial Chair,
Chair of Arbitration Board, etc.) may suggest typical approaches, but actual
differences within any general type of arrangement may be as great as
distinctions often made among the several types.
Arbitrators of labor-management disputes are sometimes asked to
serve as impartial third parties under a variety of arbitration and related
procedures dealing with the rights and interests of employees in connection
with their employment and/or representation by a union. In some cases these procedures may not be the
product of voluntary agreement between management and labor. They may be established by statute or
ordinance, ad hoc agreement, individual employment contract, or through procedures
unilaterally adopted by employers and unions.
Some of the procedures may be designed to resolve disputes over new or
revised contract terms, where the arbitrator may be referred to as a Fact
Finder or a member of an Impasse Panel or Board of Inquiry, or the like. Others may be designed to resolve disputes
over wrongful termination or other employment issues arising under the law, an
implied or explicit individual employment contract, or an agreement to resolve
a lawsuit. In some such cases the arbitrator
may be referred to as an Appeal Examiner, Hearing Officer, Referee, or other
like titles. Finally, some procedures
may be established by employers to resolve employment disputes under personnel
policies and handbooks or established by unions to resolve disputes with
represented employees in agency shop or fair share cases.
The standards of professional responsibility set forth in this
Code are intended to guide the impartial third party serving in all of these
diverse procedures.
Scope of Code
This Code is a privately developed set of standards of
professional behavior for arbitrators who are subject to its provisions. It applies to voluntary arbitration of
labor-management disputes and the other arbitration and related procedures
described in the Preamble, hereinafter referred to as "covered arbitration
dispute procedures."
The word "arbitrator," as used hereinafter in the Code,
is intended to apply to any impartial person, irrespective of specific title,
who serves in a covered arbitration dispute procedure in which there is
conferred authority to decide issues or to make formal recommendations.
The Code is not designed to apply to mediation or conciliation, as
distinguished from arbitration, nor to other procedures in which the third
party is not authorized in advance to make decisions or recommendations. It does not apply to partisan representatives
on tripartite boards. It does not apply
to commercial arbitration or to uses of arbitration other than a covered
arbitration dispute procedure as defined above.
Format of Code
Bold Face type, sometimes including explanatory material, is used
to set forth general principles. Italics
are used for amplification of general principles. Ordinary type is used primarily for
illustrative or explanatory comment.
Application of Code
Faithful adherence by an arbitrator to this Code is basic to
professional responsibility.
The National Academy of Arbitrators will expect its members to be
governed in their professional conduct by this Code and stands ready, through
its Committee on Professional Responsibility and Grievances, to advise its
members as to the Code's interpretation.
The American Arbitration Association and the Federal Mediation and
Conciliation Service will apply the Code to the arbitrators on their rosters in
cases handled under their respective appointment or referral procedures. Other arbitrators and administrative agencies
may, of course, voluntarily adopt the Code and be governed by it.
In interpreting the Code and applying it to charges of
professional misconduct, under existing or revised procedures of the National
Academy of Arbitrators and of the administrative agencies, it should be
recognized that while some of its standards express ethical principles basic to
the arbitration profession, others rest less on ethics than on considerations
of good practice. Experience has shown
the difficulty of drawing rigid lines of distinction between ethics and good
practice, and this Code does not attempt to do so. Rather, it leaves the gravity of alleged
misconduct and the extent to which ethical standards have been violated to be
assessed in the light of the facts and circumstances of each particular case.
1. ARBITRATOR'S
QUALIFICATIONS AND
RESPONSIBILITIES TO THE PROFESSION
A. General
Qualifications
1. Essential personal qualifications of an
arbitrator include honesty, integrity, impartiality and general competence in
labor relations matters.
An arbitrator must demonstrate
ability to exercise these personal qualities faithfully and with good judgment,
both in procedural matters and in substantive decisions.
a. Selection by mutual agreement of the parties
or direct designation by an administrative
agency are the effective methods of appraisal of this combination of an
individual's potential and performance, rather than the fact of placement on a
roster of an administrative agency or membership in a professional association
of arbitrators.
2. An arbitrator must be as ready to rule for
one party as for the other on each issue, either in a single case or in a group
of cases. Compromise by an arbitrator
for the sake of attempting to achieve personal acceptability is unprofessional.
B. Qualifications for Special
Cases
1. When an arbitrator decides that a case
requires specialized knowledge beyond the arbitrator's competence, the
arbitrator must decline appointment, withdraw, or request technical assistance.
a. An arbitrator may be qualified generally but
not for specialized assignments. Some
types of incentive, work standard, job evaluation, welfare program, pension, or
insurance cases may require specialized knowledge, experience or competence. Arbitration of contract terms also may
require distinctive background and experience.
b. Effective appraisal by an administrative
agency or by an arbitrator of the need for special qualifications requires that
both parties make known the special nature of the case prior to appointment of
the arbitrator.
C. Responsibilities to the
Profession
1. An arbitrator must uphold the dignity and
integrity of the office and endeavor to provide effective service to the
parties.
a. To this end, an arbitrator should keep
current with principles, practices and developments that are relevant to the
arbitrator's field of practice.
2. An arbitrator shall not make false or
deceptive representations in the advertising and/or solicitation of arbitration
work.
3. An arbitrator shall not engage in conduct
that would compromise or appear to compromise the arbitrator's
impartiality.
a. Arbitrators may disseminate or transmit
truthful information about themselves through brochures or letters, among other
means, provided that such material and information is disclosed, disseminated
or transmitted in good faith to representatives of both management and
labor.
4. An experienced arbitrator should cooperate in
the training of new arbitrators.
2.
RESPONSIBILITIES TO THE PARTIES
A. Recognition of Diversity in
Arbitration Arrangements
1. An arbitrator should conscientiously endeavor
to understand and observe, to the extent consistent with professional
responsibility, the significant principles governing each arbitration system in
which the arbitrator serves.
a. Recognition of special features of a
particular arbitration arrangement can be essential with respect to procedural
matters and may influence other aspects of the arbitration process.
2. Such understanding does not relieve an
arbitrator from a corollary responsibility to seek to discern and refuse to
lend approval or consent to any collusive attempt by the parties to use
arbitration for an improper purpose.
3. An arbitrator who is asked to arbitrate a
dispute under a procedure established unilaterally by an employer or union, to
resolve an employment dispute or agency shop or fair share dispute, has no
obligation to accept such appointment.
Before accepting such an appointment, an arbitrator should consider the
possible need to disclose the existence of any ongoing relationships with the
employer or union.
a. If the arbitrator is already serving as an
umpire, permanent arbitrator or panel member under a procedure where the
employer or union has the right unilaterally to remove the arbitrator from such
a position, those facts should be disclosed.
B. Required Disclosures
1. Before accepting an appointment, an
arbitrator must disclose directly or through the administrative agency
involved, any current or past managerial, representational, or consultative
relationship with any company or union involved in a proceeding in which the
arbitrator is being considered for appointment or has been tentatively
designated to serve. Disclosure must
also be made of any pertinent pecuniary interest.
a. The duty to disclose includes membership on a
Board of Directors, full-time or part-time service as a representative or
advocate, consultation work for a fee, current stock or bond ownership (other
than mutual fund shares or appropriate trust arrangements) or any other
pertinent form of managerial, financial or immediate family interest in the
company or union involved.
2. When an arbitrator is serving concurrently as
an advocate for or representative of other companies or unions in labor
relations matters, or has done so in recent years, such activities must be
disclosed before accepting appointment as an arbitrator.
An arbitrator must disclose such
activities to an administrative agency if on that agency's active roster or
seeking placement on a roster. Such
disclosure then satisfies this requirement for cases handled under that
agency's referral.
a. It is not necessary to disclose names of
clients or other specific details. It is
necessary to indicate the general nature of the labor relations advocacy or
representational work involved, whether for companies or unions or both, and a
reasonable approximation of the extent of such activity.
b. An arbitrator on an administrative agency's
roster has a continuing obligation to notify the agency of any significant
changes pertinent to this requirement.
c. When an administrative agency is not
involved, an arbitrator must make such disclosure directly unless the
arbitrator is certain that both parties to the case are fully aware of such
activities.
3. An arbitrator must not permit personal
relationships to affect decision-making.
Prior to acceptance of an
appointment, an arbitrator must disclose to the parties or to the administrative
agency involved any close personal relationship or other circumstance, in
addition to those specifically mentioned earlier in this section, which might
reasonably raise a question as to the arbitrator's impartiality.
a. Arbitrators establish personal relationships
with many company and union representatives, with fellow arbitrators, and with
fellow members of various professional associations. There should be no attempt to be secretive
about such friendships or acquaintances but disclosure is not necessary unless
some feature of a particular relationship might reasonably appear to impair
impartiality.
4. If the circumstances requiring disclosure are
not known to the arbitrator prior to acceptance of appointment, disclosure must
be made when such circumstances become known to the arbitrator.
5. The burden of disclosure rests on the
arbitrator. After appropriate
disclosure, the arbitrator may serve if both parties so desire. If the arbitrator believes or perceives that
there is a clear conflict of interest, the arbitrator should withdraw,
irrespective of the expressed desires of the parties.
C. Privacy of Arbitration
1. All significant aspects of an arbitration
proceeding must be treated by the arbitrator as confidential unless this requirement
is waived by both parties or disclosure is required or permitted by law.
a. Attendance at hearings by persons not
representing the parties or invited by either or both of them should be permitted
only when the parties agree or when an applicable law requires or permits. Occasionally, special circumstances may
require that an arbitrator rule on such matters as attendance and degree of
participation of counsel selected by a grievant.
b. Discussion of a case at any time by an
arbitrator with persons not involved directly should be limited to situations
where advance approval or consent of both parties is obtained or where the
identity of the parties and details of the case are sufficiently obscured to
eliminate any realistic probability of identification.
A commonly recognized exception is
discussion of a problem in a case with a fellow arbitrator. Any such discussion does not relieve the
arbitrator who is acting in the case from sole responsibility for the decision
and the discussion must be considered as confidential.
Discussion of aspects of a case in a
classroom without prior specific approval of the parties is not a violation
provided the arbitrator is satisfied that there is no breach of essential
confidentiality.
c. It is a violation of professional
responsibility for an arbitrator to make public an award without the consent of
the parties.
An arbitrator may ask the parties
whether they consent to the publication of the award either at the hearing or
at the time the award is issued.
(1) If such
question is asked at the hearing it should be asked in writing as follows:
"Do you
consent to the submission of the award in this matter for publication?
( ) (
)
YES NO
If you consent, you have the right
to notify the arbitrator within 30 days after the date of the award that you
revoke your consent."
It is desirable but not required
that the arbitrator remind the parties at the time of the issuance of the award
of their right to withdraw their consent to publication.
(2) If the
question of consent to the publication of the award is raised at the time the award
is issued, the arbitrator may state in writing to each party that failure to
answer the inquiry within 30 days will be considered an implied consent to
publish.
d. It is not improper for an arbitrator to
donate arbitration files to a library of a college, university or similar
institution without prior consent of all parties involved. When the circumstances permit, there should
be deleted from such donations any cases concerning which one or both of the
parties have expressed a desire for privacy.
As an additional safeguard, an arbitrator may also decide to withhold
recent cases or indicate to the donee a time interval before such cases can be
made generally available.
e. Applicable laws, regulations, or practices
of the parties may permit or even require exceptions to the above noted
principles of privacy.
D. Personal Relationships with the
Parties
1. An arbitrator must make every reasonable
effort to conform to arrangements required by an administrative agency or
mutually desired by the parties regarding communications and personal
relationships with the parties.
a. Only an "arm's-length"
relationship may be acceptable to the parties in some arbitration arrangements
or may be required by the rules of an administrative agency. The arbitrator should then have no contact of
consequence with representatives of either party while handling a case without
the other party's presence or consent.
b. In other situations, both parties may want
communications and personal relationships to be less formal. It is then appropriate for the arbitrator to
respond accordingly.
E. Jurisdiction
1. An arbitrator must observe faithfully both
the limitations and inclusions of the jurisdiction conferred by an agreement or
other submission under which the arbitrator serves.
2. A direct settlement by the parties of some or
all issues in a case, at any stage of the proceedings, must be accepted by the
arbitrator as removing further jurisdiction over such issues.
F. Mediation by an Arbitrator
1. When the parties wish at the outset to give
an arbitrator authority both to mediate and to decide or submit recommendations
regarding residual issues, if any, they should so advise the arbitrator prior
to appointment. If the appointment is
accepted, the arbitrator must perform a mediation role consistent with the
circumstances of the case.
a. Direct appointments, also, may require a dual
role as mediator and arbitrator of residual issues. This is most likely to occur in some public
sector cases.
2. When a request to mediate is first made after
appointment, the arbitrator may either accept or decline a mediation role.
a. Once arbitration has been invoked, either
party normally has a right to insist that the process be continued to decision.
b. If one party requests that the arbitrator
mediate and the other party objects, the arbitrator should decline the request.
c. An arbitrator is not precluded from suggesting
mediation. To avoid the possibility of
improper pressure, the arbitrator should not so suggest unless it can be
discerned that both parties are likely to be receptive. In any event, the arbitrator's suggestion
should not be pursued unless both parties readily agree.
G. Reliance by
an Arbitrator on Other Arbitration Awards or on Independent Research
1. An arbitrator must assume full personal
responsibility for the decision in each case decided.
a. The extent, if any, to which an arbitrator
properly may rely on precedent, on guidance of other awards, or on independent
research is dependent primarily on the policies of the parties on these
matters, as expressed in the contract, or other agreement, or at the hearing.
b. When the
mutual desires of the parties are not known or when the parties express
differing opinions or policies, the arbitrator may exercise discretion as to
these matters, consistent with the acceptance of full personal responsibility
for the award.
H. Use of Assistants
1. An arbitrator must not delegate any decision-making
function to another person without consent of the parties.
a. Without prior consent of the parties, an
arbitrator may use the services of an assistant for research, clerical duties,
or preliminary drafting under the direction of the arbitrator, which does not
involve the delegation of any decision-making function.
b. If an arbitrator is unable, because of
time limitations or other reasons, to handle all decision-making aspects of a
case, it is not a violation of professional responsibility to suggest to the
parties an allocation of responsibility between the arbitrator and an assistant
or associate. The arbitrator must not
exert pressure on the parties to accept such a suggestion.
I. Consent
Awards
1. Prior to issuance of an award, the parties
may jointly request the arbitrator to include in the award certain agreements
between them, concerning some or all of the issues. If the arbitrator believes that a suggested
award is proper, fair, sound, and lawful, it is consistent with professional
responsibility to adopt it.
a. Before complying with such a request, an
arbitrator must be certain of understanding the suggested settlement adequately
in order to be able to appraise its
terms. If it appears that pertinent
facts or circumstances may not have been disclosed, the arbitrator should take
the initiative to assure that all significant aspects of the case are fully
understood. To this end, the arbitrator
may request additional specific information and may question witnesses at a
hearing.
J. Avoidance of
Delay
1. It is a basic professional responsibility of
an arbitrator to plan a work schedule so that present and future commitments will be
fulfilled in a timely manner.
a. When planning is upset for reasons beyond
the control of the arbitrator, every reasonable effort should nevertheless be
exerted to fulfill all commitments. If
this is not possible, prompt notice at the arbitrator's initiative should be
given to all parties affected. Such
notices should include reasonably accurate estimates of any additional time
required. To the extent possible,
priority should be given to cases in process so that other parties may make
alternative arbitration arrangements.
2. An arbitrator must cooperate with the parties
and with any administrative agency involved in avoiding delays.
a. An arbitrator on the active roster of an
administrative agency must take the initiative in advising the agency of any
scheduling difficulties that can be foreseen.
b. Requests for services, whether received
directly or through an administrative agency, should be declined if the
arbitrator is unable to schedule a hearing as soon as the parties wish. If the parties, nevertheless, jointly desire
to obtain the services of the arbitrator and the arbitrator agrees,
arrangements should be made by agreement that the arbitrator confidently
expects to fulfill.
c. An arbitrator may properly seek to
persuade the parties to alter or eliminate arbitration procedures or tactics that
cause unnecessary delay.
3. Once the case record has been closed, an
arbitrator must adhere to the time limits for an award, as stipulated in the
labor agreement or as provided by regulation of an administrative agency or as
otherwise agreed.
a. If an appropriate award cannot be rendered
within the required time, it is incumbent on the arbitrator to seek an
extension of time from the parties.
b. If the parties have agreed upon abnormally
short time limits for an award after a case is closed, the arbitrator should be
so advised by the parties or by the administrative agency involved, prior to
acceptance of appointment.
K. Fees and
Expenses
1. An arbitrator occupies a position of trust in
respect to the parties and the administrative agencies. In charging for services and expenses, the
arbitrator must be governed by the same high standards of honor and integrity
that apply to all other phases of
arbitration work.
An arbitrator must endeavor to
keep total charges for services and expenses reasonable and consistent with the
nature of the case or cases decided.
Prior to appointment, the parties
should be aware of or be able readily to determine all significant aspects of
an arbitrator's bases for charges for fees and expenses.
a. Services Not primarily Chargeable on a per
Diem Basis
By agreement with the parties, the
financial aspects of many "permanent" arbitration assignments, of
some interest disputes, and of some "ad hoc" grievance assignments do
not include a per diem fee for services as a primary part of the total
understanding. In such situations,
the arbitrator must adhere faithfully to all agreed-upon arrangements governing
fees and expenses.
b. Per Diem Basis for Charges for Services
(1) When an
arbitrator's charges for services are determined primarily by a stipulated per
diem fee, the arbitrator should establish in advance the bases for application
of such per diem fee and for determination of reimbursable expenses.
Practices established by an
arbitrator should include the basis for charges, if any, for:
(a) hearing time, including the
application of the stipulated basic per diem hearing fee to hearing days of varying
lengths;
(b) study time;
(c) necessary travel time when not included
in charges for hearing time;
(d) postponement or cancellation of
hearings by the parties and the circumstances in which such charges will
normally be assessed or waived;
(e) office overhead expenses (secretarial,
telephone, postage, etc.);
(f) the work of paid assistants or
associates.
(2) Each
arbitrator should be guided by the following general principles:
(a) Per diem charges for a hearing
should not be in excess of actual time spent or allocated for the hearing.
(b) Per diem charges for study time
should not be in excess of actual time spent.
(c) Any fixed ratio of study days to
hearing days, not agreed to specifically by the parties, is inconsistent with
the per diem method of charges for services.
(d) Charges for expenses must not be in
excess of actual expenses normally reimbursable and incurred in connection with
the case or cases involved.
(e) When time or expense are involved
for two or more sets of parties on the same day or trip, such time or expense
charges should be appropriately prorated.
(f) An arbitrator may stipulate in
advance a minimum charge for a hearing without violation of (a) or (e) above.
(3) An
arbitrator on the active roster of an administrative agency must file with the
agency the individual bases for determination of fees and expenses if the
agency so requires. Thereafter, it is
the responsibility of each such arbitrator to advise the agency promptly of any
change in any basis for charges.
Such filing may be in the form of answers
to a questionnaire devised by an agency or by any other method adopted by or
approved by an agency.
Having supplied an administrative
agency with the information noted above, an arbitrator's professional
responsibility of disclosure under this Code with respect to fees and expenses
has been satisfied for cases referred by that agency.
(4) If an
administrative agency promulgates specific standards with respect to any of
these matters which are in addition to or more restrictive than an individual
arbitrator's standards, an arbitrator on its active roster must observe the
agency standards for cases handled under the auspices of that agency, or
decline to serve.
(5) When an
arbitrator is contacted directly by the parties for a case or cases, the
arbitrator has a professional responsibility to respond to questions by
submitting the bases for charges for fees and expenses.
(6) When it
is known to the arbitrator that one or both of the parties cannot afford normal
charges, it is consistent with professional responsibility to charge lesser
amounts to both parties or to one of the parties if the other party is made
aware of the difference and agrees.
(7) If an
arbitrator concludes that the total of charges derived from the normal basis of
calculation is not compatible with the case decided, it is consistent with
professional responsibility to charge lesser amounts to both parties.
2. An arbitrator must maintain adequate records
to support charges for services and expenses and must make an accounting to the
parties or to an involved administrative agency on request.
3.
RESPONSIBILITIES TO ADMINISTRATIVE AGENCIES
A. General Responsibilities
1. An arbitrator must be candid, accurate, and
fully responsive to an administrative agency concerning qualifications,
availability, and all other pertinent matters.
2. An arbitrator must observe policies and rules
of an administrative agency in cases referred by that agency.
3. An arbitrator must not seek to influence an
administrative agency by any improper means, including gifts or other
inducements to agency personnel.
a. It is not improper for a person seeking
placement on a roster to request references from individuals having knowledge
of the applicant's experience and qualifications.
b. Arbitrators should recognize that the primary
responsibility of an administrative agency is to serve the parties.
4.
PREHEARING CONDUCT
1. All prehearing matters must be handled in a
manner that fosters complete impartiality by the arbitrator.
a. The primary purpose of prehearing discussions
involving the arbitrator is to obtain agreement on procedural matters so that
the hearing can proceed without unnecessary obstacles. If differences of opinion should arise during
such discussions and, particularly, if such differences appear to impinge on
substantive matters, the circumstances will suggest whether the matter can be
resolved informally or may require a prehearing conference or, more rarely, a
formal preliminary hearing. When an
administrative agency handles some or all aspects of the arrangements prior to
a hearing, the arbitrator will become involved only if differences of some
substance arise.
b. Copies of any prehearing correspondence
between the arbitrator and either party must be made available to both parties.
5. HEARING
CONDUCT
A. General Principles
1. An arbitrator must provide a fair and
adequate hearing which assures that both parties have sufficient opportunity to
present their respective evidence and argument.
a. Within the limits of this responsibility,
an arbitrator should conform to the various types of hearing procedures desired
by the parties.
b. An arbitrator may: encourage stipulations of fact; restate the
substance of issues or arguments to promote or verify understanding; question
the parties' representatives or witnesses, when necessary or advisable, to
obtain additional pertinent information; and request that the parties submit
additional evidence, either at the hearing or by subsequent filing.
c. An arbitrator should not intrude into a
party's presentation so as to prevent that party from putting forward its case
fairly and adequately.
B. Transcripts or Recordings
1. Mutual agreement of the parties as to use or non-use
of a transcript must be respected by the arbitrator.
a. A transcript is the official record of a
hearing only when both parties agree to a transcript or an applicable law or
regulation so provides.
b. An arbitrator may seek to persuade the parties
to avoid use of a transcript, or to use a transcript if the nature of the case
appears to require one. However, if
an arbitrator intends to make appointment to a case contingent on mutual
agreement to a transcript, that requirement must be made known to both parties
prior to appointment.
c. If the parties do not agree to a transcript,
an arbitrator may permit one party to take a transcript at its own cost. The arbitrator may also make appropriate
arrangements under which the other party may have access to a copy, if a copy
is provided to the arbitrator.
d. Without prior approval, an arbitrator may
seek to use a personal tape recorder to supplement note taking. The arbitrator should not insist on such a
tape recording if either or both parties object.
C. Ex Parte Hearings
1. In determining whether to conduct an ex parte
hearing, an arbitrator must consider relevant legal, contractual, and other
pertinent circumstances.
2. An arbitrator must be certain, before
proceeding ex parte, that the party refusing or failing to attend the hearings
has been given adequate notice of the time, place, and purposes of the hearing.
D. Plant Visits
1. An arbitrator should comply with a request of
any party that the arbitrator visit a work area pertinent to the dispute prior
to, during, or after a hearing. An
arbitrator may also initiate such a request.
a. Procedures for such visits should be agreed
to by the parties in consultation with the arbitrator.
E. Bench Decisions or Expedited
Awards
1. When an arbitrator understands, prior to
acceptance of appointment, that a bench decision is expected at the conclusion
of the hearing, the arbitrator must comply with the understanding unless both
parties agree otherwise.
a. If notice of the parties' desire for a
bench decision is not given prior to the arbitrator's acceptance of the case,
issuance of such a bench decision is discretionary.
b. When only one party makes the request and
the other objects, the arbitrator should not render a bench decision except
under most unusual circumstances.
2. When an arbitrator understands, prior to
acceptance of appointment, that a concise written award is expected within a
stated time period after the hearing, the arbitrator must comply with the
understanding unless both parties agree otherwise.
6. POST
HEARING CONDUCT
A. Post Hearing Briefs and
Submissions
1. An arbitrator must comply with mutual
agreements in respect to the filing or nonfiling of post hearing briefs or
submissions.
a. An arbitrator may either suggest the filing
of post hearing briefs or other submissions or suggest that none be filed.
b. When the parties disagree as to the need for
briefs, an arbitrator may permit
filing but may determine a reasonable time limitation.
2. An arbitrator must not consider a post
hearing brief or submission that has not been provided to the other party.
B. Disclosure of Terms of Award
1. An arbitrator must not disclose a prospective
award to either party prior to its simultaneous issuance to both parties or
explore possible alternative awards
unilaterally with one party, unless both parties so agree.
a. Partisan members of tripartite boards may
know prospective terms of an award in advance of its issuance. Similar situations may exist in other less
formal arrangements mutually agreed to by the parties. In any such situation, the arbitrator should
determine and observe the mutually desired degree of confidentiality.
C. Awards and Opinions
1. The award should be definite, certain, and as
concise as possible.
a.
When an opinion is required, factors to be considered by an arbitrator
include: desirability of brevity, consistent with the nature of the case
and any expressed desires of the parties; need to use a style and form that is
understandable to responsible representatives of the parties, to the grievant
and supervisors, and to others in the collective bargaining relationship;
necessity of meeting the significant issues; forthrightness to an extent not
harmful to the relationship of the parties; and avoidance of gratuitous advice
or discourse not essential to disposition of the issues.
D. Clarification or Interpretation
of Awards
1. No clarification or interpretation of an
award is permissible without the consent of both parties.
2. Under agreements which permit or require clarification or interpretation of an award, an arbitrator must afford both parties an opportunity to be heard