Collective bargaining arbitration in Puerto Rico (NCA)

What NCA is, and why arbitration is contractual

The Conciliation and Arbitration Bureau (NCA) is the Labor Department office that **appoints arbitrators to resolve grievances arising from a collective bargaining agreement**. The Department tells it this way: the first reference in our statutes to bodies for airing labor-management disputes is **Act No. 84 of March 14, 1912**, which created a Labor Bureau; when labor-management arbitration took off an arbitration section was created, and from that, **around 1951**, NCA emerged.

Its current legal basis is **Section 12 of the Department's Organic Act** (Act 15 of 1931, 3 L.P.R.A. § 317b): the Labor Department **shall provide conciliation and arbitration services** for the benefit of labor relations **in the public and private sectors**, as means to promote and maintain industrial peace.

And here is the piece that decides whether NCA is for you: arbitration is **contractual in nature**. The Bureau's regulation says it plainly: the dispute **must arise from a collective bargaining agreement or a special agreement authorizing the Bureau to appoint an arbitrator** or to send a panel of three. With no agreement authorizing it, there is no NCA arbitration. And the award that comes out **is final and binding on the parties**.

What it does not cost: **the service is provided free of charge**. The Bureau also lends rooms for the parties to meet, including for private arbitration hearings, and offers courses and seminars on labor-management relations.

Careful not to confuse forums, because all three exist at once: if you are a **central government employee unionized under Act 45**, your forum is CASP; if you are a **non-unionized private employee**, it is the Mediation and Adjudication Office; and if your claim arises from a **collective bargaining agreement**, it is this one.

The grievance committee first, and mind the contract's deadlines

Arbitration is not the first step. The Department describes the actual sequence: **after the union and the employer exhaust every remedy available within their agreement's grievance committee** (where they are obliged to make genuine efforts to resolve grievances) if they cannot agree, the aggrieved party generally turns to arbitration.

Then comes the warning that costs cases: the arbitration request is filed **in harmony with the agreement's provisions, especially as to the time limits it sets for filing the grievance or requesting the arbitrator**. Those deadlines **are not in the Bureau's regulation or in the statute**: they are in your agreement, and each agreement has its own.

So the first thing to do is not call the Bureau: it is **get a copy of the current agreement and read the grievance clause**; who files, before whom, within how many days, how many steps precede arbitration, and how long you have to request the arbitrator after the last step.

There are also three substantive limits in the regulation itself, worth knowing before investing months. Arbitration is offered **to resolve real disputes, not hypothetical ones**. It is **not** offered to **clarify or determine appropriate bargaining units**. And in disciplinary cases, **it is not the arbitrator's role to impose or determine the disciplinary action**: the arbitrator may only **affirm, modify or revoke** the action the employer took, guided by the agreement or special agreement.

How the request is filed (and the 5 days to fix it)

The request for appointment or selection of an arbitrator **is filed in writing at the Bureau's Secretariat, from 8:00 a.m. to 4:30 p.m.**; after that hour no requests are accepted until the next business day. And **the requesting party shall simultaneously send a copy of the request to the other party**.

The official form (Rev. 02/25) asks, among other things, for two answers that carry the whole process: **whether the procedure established in the collective agreement was complied with before requesting arbitration**, and **whether the dispute has been filed in another forum**, with the forum and case number. It also asks for the number of affected employees, the grievants' names, the union's and the employer's contentions, and a checkbox for the type of dispute: **dismissal, suspension, claim, contract interpretation, substantive arbitrability or procedural arbitrability**. You certify having attached **a copy of the collective agreement** and having sent a true and exact copy to the other party.

Beyond the form, the regulation requires filing **a written grievance** containing, at minimum: the moving party's name, mailing and physical address, email and fax; **the number of affected employees and their names**; the same data for the responding party; **a succinct and clear statement of the facts**; the alleged violations of the agreement or special agreement; and **a request for the remedy** believed due.

If the request lacks required information, **it is returned**. And here is the deadline almost nobody sees coming: **to keep the original filing date, it must be returned corrected within five (5) business days** of being sent back. If it arrives later, **it is deemed received on the date you filed it late**, and that new date may fall outside the term your agreement sets.

The panel of three: each side strikes one name

There are two ways to reach the arbitrator, and you choose on the form. Some agreements provide that **the Secretary of Labor or the Bureau's Director appoints** the arbitrator. In others, the parties ask the Bureau to **send a panel of three**.

If it is a panel, the mechanism is this: the Bureau supplies **the names of three (3) available arbitrators**; **each party strikes one (1)** and informs the Bureau in writing of the name selected. The parties may also, by mutual agreement, report the selection jointly.

The deadline matters: **if one or both parties fail to report their selection within thirty (30) calendar days** of the panel being sent, **the Bureau proceeds to appoint the arbitrator from the list submitted**. Not reporting does not stall the case; it only costs you the choice.

Once there is an arbitrator, they set the hearing well in advance so union and employer can prepare and bring all relevant testimonial or documentary evidence. At the hearing, the parties have the right to **submit all relevant evidence, testimonial and documentary**, and to **examine and cross-examine witnesses, confront the evidence presented and rebut it**.

And if the arbitrator should not hear your case? Since they were appointed or chosen through the panel, **they may only be challenged for causes arising after the appointment or unknown at that time**, for example, if a party has reason to believe they breached the Code of Ethics. The request is filed in writing **that same day** with the Director, with its grounds; the arbitrator decides in the first instance whether to accept it, suspends the hearing and returns the file, and **the directorate investigates that same day and reports the course of action within the next three (3) business days**.

Expedited arbitration: hearing in 30 days, award in 20

For cases that cannot wait for the ordinary calendar there is **expedited arbitration**, and its numbers are different. **At both parties' request**, the Director may authorize it for **dismissal cases and/or disputes of high public interest**. Note the “both”: you cannot ask for it alone.

The request goes to the Director, who decides **based on the information in the request** whether it is warranted; **if it is not, the grievance is ordered resolved under the ordinary procedure**. If it proceeds, the Director communicates **immediately and in writing** with the parties and reports **the name of the appointed arbitrator, in this type of arbitration no panel of three is sent**.

The deadlines are the point: the arbitrator coordinates the hearing date, which **must be held within no more than thirty (30) calendar days of the appointment**, and **the hearing may not be postponed at the parties' request**. If it is not held on the day set because of one or both parties, **the case is rescheduled under the ordinary procedure**, per the arbitrator's calendar. And the award **must be signed, issued and certified within twenty (20) calendar days** of the case being submitted.

For the other extreme (big cases) the regulation has the **Independent Arbitration Panel**: at both parties' request, the Director may appoint **three (3) arbitrators** for cases of **extreme complexity, high volume of employees, high volume of claims, or disputes of high public interest or high economic or social impact**. That panel's award **requires approval by a majority** of its members.

Postponements: three, and not showing up can close your case

The regulation put a brake on the habit of postponing. **No more than three (3) postponements requested by the parties will be accepted**, except for emergencies or force majeure, and the request must come **accompanied by convincing evidence** sufficient to move a prudent and reasonable person. Any request **after the third** must be elevated by the arbitrator to the Bureau's directorate, which decides.

And there is a form and a time: a postponement request is submitted **in writing to the arbitrator at least five (5) business days before** the hearing, absent extraordinary circumstances; **it must be notified simultaneously to the other party** by fax, email, express delivery or any other written method; and **it must suggest three (3) dates no more than ninety (90) calendar days** from the original one.

The party who does not appear gambles the case, and the consequences are asymmetric. If a party fails to appear after being notified, without having requested or obtained approval to postpone: **if the absent one is the moving party, the arbitrator may close the case with prejudice**; **if the absent one is the opposing party, the arbitrator may hold the hearing and decide on the evidence presented alone**.

There is also a substitution rule so an arbitrator's absence does not kill your setting: if the arbitrator is absent with a case already scheduled, the Director postpones it; on returning, **the arbitrator notifies the new date within the next five (5) business days**, and that date **must fall within ninety (90) calendar days** of the original hearing. If the parties prefer to keep the day originally set, **a special panel of three** is submitted so they can choose another arbitrator.

The award: six months, no reconsideration, and public

In ordinary arbitration, **the arbitrator shall issue the award within a reasonable term not exceeding six (6) months** from the case being submitted. The regulation calls it **strictly enforceable**: any extension must be requested **in writing from the Director thirty (30) calendar days before expiry**, showing just cause **in detail, with concrete and particular explanations, duly evidenced**. And it adds the line that shuts the door: **“just cause may not be established with excuses, vagueness or stereotyped assertions.”** An arbitrator who exceeds the term without just cause **is subject to disciplinary measures**.

The award **must be in writing and signed by the arbitrator**, and **the decision is final and binding on the parties: it cannot be reconsidered by them**. There is no second round before the same arbitrator.

If your agreement provides that a Bureau arbitrator serve as **third or fifth member of a Grievance Committee**, that arbitrator presides over the hearing and issues the award, but **for it to become final it must convene the Committee's other members and obtain majority ratification**, unless the agreement provides otherwise.

Challenging it is possible, but not before the Bureau: **the adversely affected party may file a petition to vacate the award before a court of competent jurisdiction, within the term prescribed by law**, and **must simultaneously notify a copy to the Bureau's Director**. The regulation **does not set that term** (it defers to the statute) so if you plan to challenge, confirm the applicable deadline before it runs out.

A privacy detail worth knowing both ways: **every statement, piece of information, document or report received by the Bureau's staff is confidential**, but **awards are not confidential documents and the Secretary may disclose or publish them**. What is decided can be read; what was discussed along the way cannot.

The regulation setting all these deadlines is the **“Regulation for the Internal Order of the Services of the Conciliation and Arbitration Bureau,”** approved by the Secretary of Labor in **September 2016** under Section 4 of Act 15 of 1931, effective **ten (10) calendar days** after approval. Before filing, confirm on the Labor Department's portal that it is still the one in force: regulations get amended, and this one repeals any prior conflicting norm.

Discrimination cases, as a general rule, do not go there

This is the exception most people need to know before choosing a forum. **As a general rule, discrimination cases will not be heard before the Bureau's arbitrators**; those covered by Act 100 of 1959 (employment discrimination), **Title VII** of the federal Civil Rights Act of 1964, **ADEA**, **ADA**, **Act 44 of 1985** (discrimination against persons with disabilities) and **Act 17 of 1988** (sexual harassment in employment).

But it is not an absolute bar, and the regulation itself clarifies: **if in the collective agreement or the special agreement the parties agreed to submit discrimination-based labor disputes to arbitration, and that is not expressly prohibited in our legal system, the moving party has the right to choose the forum** in which to bring the action.

Translated into a practical decision: if your case is discrimination or harassment, **the choice of forum is yours and is worth making with advice**, checking first whether your agreement provided for it. And remember what the form asks head-on: **whether the dispute has already been filed in another forum**; you must say so, with the forum and case number.