Hearing Procedures for Arbitration

PURPOSE: This rule establishes the arbitration procedures to be used under Missouri’s Prevailing Wage Law. (1) Date, Time and Site for Arbitration Hearing. All arbitration hearings shall be held in Jefferson City unless otherwise agreed to by the parties. The parties shall respond to requests for hearing dates from the arbitration service provider within ten (10) days of receipt. Upon the request of either party or the arbitration service provider, the arbitrator shall have the authority to convene a scheduling conference call and/or issue a Notice of Hearing setting the date, time and place for hearing. (2) Notice of Hearing. The arbitrator shall issue to both parties a written Notice of Hearing detailing the arrangements agreed to by the parties or ordered by the arbitrator at least ten (10) days before the hearing date, unless otherwise agreed to by the parties. (3) Postponement or Cancellation. The arbitrator, for good cause shown, may postpone or cancel the hearing upon the request of a party or upon his or her own initiative. The parties can also agree to a postponement or cancellation of a hearing. Any postponement or cancellation fees owed to the arbitration service provider and/or the arbitrator shall be paid by the party requesting a postponement or cancellation. If the parties agree to a postponement or cancellation of a hearing, the postponement or cancellation fee shall be divided evenly between the parties. In the event of a cancellation of the arbitration after the commencement of the arbitration hearing, all fees owed to the arbitrator for services rendered shall be paid by the party requesting the cancellation. If an employer resolves the matter after requesting arbitration but prior to an arbitrator’s award, such resolution shall be considered a cancellation of the arbitration and the employer shall pay all fees owed to the arbitrator for services rendered. (4) Costs. Unless otherwise provided in this rule or by Missouri law, each party shall be responsible for paying all costs associated with presenting its case before the arbitrator. All filing fees shall be paid in accordance with the guidelines of American Association of Arbitration (AAA) or other arbitration service provider mutually agreed to by the parties. All administrative fees billed by the arbitration service provider shall be divided evenly between the parties. All costs billed by the arbitrator shall be divided evenly between the parties unless otherwise provided for in 8 CSR 30-5.030(2) and (3) and/or sections (3) and (4) of this rule. (5) Commencement of Hearing. A hearing shall be opened by the following actions: (A) Administration of the oath to all parties by the arbitrator; and (B) Recording of the date, time and place of the hearing and the presence of the arbitrator, the parties, and counsel, if any. (6) Evidence. (A) The parties may offer such evidence as is relevant and material to the dispute and shall produce such additional evidence as the arbitrator may deem necessary to reach an understanding and determination of the dispute. An arbitrator can subpoena any witnesses and any documents upon the request of any party. If a party, or any person or organization within the control of a party, fails to obey a subpoena of an arbitrator, the arbitrator shall treat the evidence requested but not produced as establishing an inference favorable to the position of the party who subpoenaed the item, subject to the opposing party’s right to seek an order in Circuit Court quashing or limiting the scope of the subpoena. In the event a party fails to comply with a subpoena, the requesting party may seek to enforce the subpoena in Circuit Court. The arbitrator shall make all decisions regarding the relevance and materiality of the evidence offered and conformity to legal rules of any evidence shall not be necessary. All of the 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 the right to be present. (B) All documents that are not filed with the arbitrator before or at the hearing, but arranged at the hearing or subsequently by agreement of the parties to be submitted, shall be filed with the arbitration service provider for transmission to the arbitrator or transmitted to the arbitrator directly if the parties agree. All parties shall be able to inspect the documents and object to their relevance and materiality to the dispute prior to the arbitrator making a determination of their relevance and materiality. (7) Exhibits. The arbitrator may receive into evidence exhibits offered by the parties. The names and addresses of all witnesses and exhibits in order received shall be made part of the record. The arbitrator shall afford each party equal opportunity for the presentation of relevant proofs. Final determinations of relevance shall be made by the arbitrator. (8) Witnesses. Each party shall provide to the opposing party and the arbitrator a list of witnesses that it intends to call to testify or provide written statements. Such list shall be provided to the opposing party and arbitrator at least two (2) business days prior to the hearing. At the discretion of the arbitrator, failure to do so may result in the party’s forfeiture of its right to call the witness. If a party wants to add persons to its witness list within two (2) business days of the hearing or at the hearing, the arbitrator may permit the witness to testify if the arbitrator finds it to be in the interest of fairness and relevant. (9) Recording and Transcripts. All hearings shall be tape-recorded. The tape-recording shall be retained by the arbitrator for a period in concurrence with the statute of limitations for an employee to bring a private action for the recovery of wages. Either party may request a written transcript at any time within this period, and the requesting party will bear the cost of the transcript, unless otherwise agreed by the parties. (10) Communication with the Arbitrator. There shall be no direct communication between the parties and the arbitrator on substantive matters relating to the case other than at oral hearings, unless the parties and the arbitrator agree otherwise. Any other oral or written communication from the parties to the arbitrator shall be directed to the arbitration service provider for transmittal to the arbitrator. (11) Closing the Hearing. The arbitrator shall inquire of all parties whether they have any additional exhibits or witnesses to present. The arbitrator shall afford each party the opportunity to present an oral closing statement. Once both parties indicate that they have no more evidence to present or the arbitrator determines that all necessary relevant and non-duplicative evidence has been presented and the record is complete, the arbitrator shall declare the hearing to be closed. If briefs or other documents are to be filed, the hearing shall be declared closed as of the final date set by the arbitrator for filing with the arbitration service provider or directly with the arbitrator. The time limit within which the arbitrator is required to make an award shall begin to run, in the absence of another agreement by the parties, on the closing date of the hearing. AUTHORITY: section 290.240(2), RSMo 2000.* Emergency rule filed July 19, 2007, effective Aug. 28, 2007, expired Feb. 28, 2008. Original rule filed July 19, 2007, effective Feb. 29, 2008. *Original authority: 290.240, RSMo 1957, amended 1969.