What Happened?

If your union or employer asks a federal agency for a panel of arbitrators, the agency can now decline or hold the request when granting it would conflict with the law. Arbitrators are neutral outsiders who settle workplace disputes. ​

The Federal Mediation and Conciliation Service (FMCS) changed its arbitration rules in a final rule that took effect Oct. 29, according to a Legis1 review of its Federal Register notice, Requests for Arbitration Panels.

Under the regulation, FMCS's Office of Arbitration can now:

  • Check first: It may run a "limited threshold inquiry" before issuing a panel, to see whether it may lawfully provide the service.
  • Explain in writing: It must tell the parties in writing when it declines or holds a request, and say why.
  • Keep your place: A held request keeps its original date of receipt, and the office must reconsider if a party submits a court order or other relevant information.
  • Refund fees: A party that paid a fee may get a refund or a credit toward future FMCS arbitration services.

Why Does it Matter to Me?

Most people who use FMCS arbitration will see no change. FMCS says the "great majority of the panels [the Office of Arbitration] issues each year involve private-sector parties or Federal-sector parties as to whom no question of FMCS's authority arises."

FMCS says the rule carries out two executive orders that excluded numerous agencies and subdivisions from federal labor-management programs and told excluded agencies to end their part in pending grievance proceedings. FMCS expects the cost of the new steps to be "minimal."

Both Sides, Now

All five public comments opposed the rule, and three groups asked FMCS to withdraw it. One comment, from a coalition representing "more than 550,000 Federal and postal employees," said the rule compromises FMCS's neutrality.

The Federal Workers Alliance described one case in its comment to FMCS. It said a union with roughly two months left to request a panel paid $100, and FMCS declined to help pick the arbitrator, citing an April 22 guidance memorandum. That is a union's own account.

FMCS answered that "neutrality . . . is impartiality between labor and management as to the merits of their disputes. It is not indifference to whether the law permits FMCS to act." FMCS, an executive branch agency, issued the rule itself.

What Happens Next?

The rule is already in effect, so the next step falls to FMCS. It says it will bring the April 22 guidance memorandum, which tells the Office of Arbitration to confirm an excluded agency's consent before issuing panels, in line with the final rule. Where the two conflict, FMCS says the regulation controls.

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