Section 1. Panel of Arbitrators
a. The parties will establish a panel of ten (10) arbitrators. The panel will be
used for both regular and one-day arbitrations. The number of arbitrators
on the panel may be increased or decreased by mutual agreement of the
b. Arbitrators to fill vacancies on the panel will be mutually agreed to by the
parties or selected from a list of seven (7) names supplied by the Federal
Mediation and Conciliation Service. If the parties cannot agree upon a
name, they will alternately strike from the list until one (1) name remains.
c. The arbitrator designated to hear a particular case shall be assigned on a
random basis from the list maintained in the Office of Employee and Labor-
Management Relations (OELMR) and by Local 12. After an arbitrator is
selected, his/her name shall not be placed back into the selection pool until
all other arbitrators have been selected. The process will then begin again.
This process will be followed regardless of what type of arbitration is
d. Any arbitrator may be removed from the panel unilaterally by either party
on the anniversary of the effective date of this Agreement. The party
wishing to exercise this right must give notice to the other party only during
the thirty (30) calendar-day period prior to the anniversary of the effective
date of the Agreement. After such notice of an arbitrator’s removal, no
further cases will be heard by or assigned to that arbitrator. Once an
arbitrator is removed, all arbitrations assigned to but not heard by the
arbitrator will be returned to the arbitrator assignment pool for random
assignment. By mutual agreement the parties may remove an arbitrator
outside the 30-day window period for purposes of cases which have not
e. Within fifteen (15) work days after written notice of an arbitrator’s removal,
the parties shall meet and mutually agree upon another arbitrator(s) to
replace the removed arbitrator (s), using the selection method set forth in
subsection (b) above.
f. OELMR will be responsible for communicating with the arbitrators about
their inclusion on or removal from any panel. Assignments and the
scheduling of their assigned cases will be done jointly. The parties may
contact an arbitrator directly regarding dates of availability but may not
unilaterally schedule a case. Both parties will copy each other on all
communications with an arbitrator.
Section 2. Cost of Arbitration
a. Arbitration fees, transcripts, and other routine expenses will be paid by both
parties in equal proportions, with the following exceptions:
(1) The Department will pay for the first five (5 ) one-day arbitrations.
(2) The moving party shall pay in the case of a cancellation or
postponement. However, in the case of a settlement both parties will
share any fee.
(3) The losing party in an arbitrability/grievability proceeding under
Section 9 will be responsible for all costs of that proceeding.
b. Neither party will incur any additional financial obligation based on failure of
the other party to timely pay the arbitrator in accordance with the preceding
Section 3. Scheduling of Arbitration Hearings
a. OELMR and Local 12 shall meet on a monthly basis to review all cases
invoked to arbitration since the last monthly meeting and to assign a
hearing date for all pending cases. Cases will be assigned in order of
invocation, except that removal and suspension cases will be given priority
scheduling. Other cases may be prioritized only by mutual agreement of the
parties. If multiple cases are invoked on the same day, the date the
grievances were filed will determine scheduling order.
b. An arbitrator who agrees to serve on the regular Panel will not charge the
parties if a hearing date is postponed in excess of three (3) calendar days of
the scheduled hearing date. If the postponement occurs within three (3) or
fewer calendar days of the hearing date, arbitrators will be paid a fee of no
more than $350.00.
c. An arbitrator who agrees to serve on the Panel will not charge the parties is
the hearing date is cancelled in excess of five (5) calendar days of the
scheduled hearing date. If the cancellation occurs within five (5) or fewer
calendar days of the hearing date, arbitrators will be paid afee of no more
Section 4. Submission of Case for Decision by the Arbitrator Without a
In cases where there are no facts in dispute, the parties may agree to submit the
case for decision by the arbitrator on the basis of written stipulations, documentary
exhibits, affidavits and written briefs, without the necessity of a hearing.
Section 5. Prehearing Procedures
For all Arbitration procedures described within this Article, the parties agree that
no later than ten (10) workdays before a scheduled hearing, the parties will, by
face to face meeting or otherwise, clarify and stipulate the issue or issues,
exchange witness lists, agree on joint exhibits and joint stipulations of fact, and
explore possible resolution/settlement of the case. If the parties cannot agree on a
joint stipulation of the issues, the parties shall exchange separate written
statements of the issues no later than five (5) workdays before the scheduled
hearing. If a party fails to provide the other side with its list of witnesses at least
ten (10) workdays prior to the hearing, that party waives the right to call those
witnesses. The parties have the right, however, to supplement the witness list, no
later than five (5) work days before the hearing for good cause shown. The
determination of whether good cause has been established will be an issue for the
Arbitrator to determine, if challenged by the opposing party. This does not prohibit
either party from calling additional witnesses to rebut testimony provided during
the hearing. It is incumbent for the parties to timely submit all documents
referenced above in a timely email, by fax or by hard copy. The Arbitrator will have
jurisdiction to determine what sanction(s) are applicable, if any, where they are
not specified, for failure to adhere to the above requirements.
Section 6. Hearing Site
The Department will provide the hearing site, usually on the Department’s
Section 7. One-Day Arbitration
a. The parties shall use the one-day arbitration procedure for all grievances
(1) Institutional grievance (that is, where the Union or the Department
are the grievant);
(2) For individual employee grievances involving suspensions of fifteen
(15) days or more, up to and including removal as set forth in 5
U.S.C. 7511 (d);
(3) For individual employee grievances involving performance based
actions as set forth in 5 U.S.C. 4303;
(4) Grievance Board cases;
(5) Reasonable accommodations;
(6) Merit staffing;
(7) Contracting out;
(8) Reduction-in-force; and,
(9) Minimally Satisfactory Ratings.
b. Nothing in this Section prohibits the parties from mutually agreeing to utilize
the regular arbitration, one-day arbitration or Grievance Board forum under
Article 47 to hear any specific grievance.
c. Time Parameters and Conduct of Hearing for One-Day and Regular
(1) The procedures described above will be normally be conducted in
one (1) day. Each party will have up to four (4) hours to present its
case, including rebuttal, to cross-examine the other party’s
witness(es), and to present opening and/or closing arguments.
(2) The one-day arbitration hearing shall not normally be transcribed;
however, the arbitrator may record the hearing.
(3) No post-hearing briefs shall be filed, unless mutually agreed to by the
(4) Either party has the right to submit copies of applicable case law at
any time up to the close of the hearing.
(5) Whatever time is not used by either party in their case in chief may
be used by that party for rebuttal.
(6) There will be no pre-set limit on the number of hearing days, for the
regular arbitrations absent the written consent of both parties to
proceeding to the contrary; provided, however that the arbitrator
shall have the authority to limit the number of witnesses and/or
exhibits to prevent the presentation of cumulative or irrelevant
(7) If the parties cannot agree, it shall be the sole discretion of the
arbitrator to determine who may testify. Upon request of either
party, the arbitrator may be asked to make a ruling prior to the
hearing, (via a pre-hearing meeting or telephone conference call) on
disputes involving witnesses; provided, however, that the arbitrator
shall not exclude witnesses presenting expert medical testimony.
(8) In regular arbitration cases, the arbitrator should render and serve
the written award on both parties within thirty (30) calendar days of
the close of the record, with the exception noted in Section 3 (b) of
Section 8. Authority and Decision of the Arbitrator
a. The arbitrator shall have the jurisdiction and authority to hear and decide
the arbitration assigned to him/her except:
(1) The arbitrator will have no authority to add to, subtract from, alter,
amend, or modify any provision of this Agreement.
(2) In accordance with Article 47, Section 5, the arbitrator will have no
authority to address any matters excluded from the grievance
procedure regardless of the specific allegation(s) or issue(s) raised.
(3) The arbitrator will have no authority to consider new issues,
allegations and defenses raised by the grievant that he/she had not
previously raised, in writing, at or before the Step 2 grievance
meeting. In addition, mere references to an alleged violation of a
contract article or to issues, allegations or defenses, without
reference to the underlying facts and circumstances supporting the
assertion, shall not be arbitrable.
b. The grievant (i.e., moving party), has the burden of proof regarding the
merits of the grievance by a preponderance of the evidence with the
following two exceptions: Management has the burden of proof regarding a
performance-based action by substantial evidence in accordance with
Chapter 43 of the Civil Service Reform Act, or a disciplinary or adverse
action by a preponderance of the evidence in accordance with Chapter 75 of
the Civil Service Reform Act.
c. Any disputes regarding arbitrability will be resolved in accordance with
Section 9 of this Article.
d. In one-day arbitration cases, the arbitrator’s decision should be rendered
within five (5) calendar days of the date of the hearing. While it may be
brief, the decision shall be in writing and must contain the rationale utilized
by the arbitrator for either granting or denying the grievance.
e. The arbitrator’s decisions will be final and binding, except as altered on
appeal or provided by law.
Section 9. Grievability and Arbitrability
The arbitrator designated to hear the case on the merits shall have the authority to
make all determinations regarding grievability and arbitrability. If the Department
and/or the Union considers a grievance to be non-grievable or non-arbitrable, that
issue shall be raised and determined as follows:
a. A party challenging the arbitrability of a grievance based on an alleged
failure to timely invoke any Step of the grievance or arbitration procedure
may require that a separate hearing (by meeting or teleconference) be held
to decide the arbitrability issue. The hearing must be requested no later
than thirty (30) workdays before the scheduled arbitration hearing. The
arbitrator shall render a decision on a pre-hearing timeliness challenge no
later than three (3) workdays following the hearing. A hearing on the
merits shall not commence prior to receipt of the arbitrator’s decision. If
the timeliness challenge is denied, the challenging party must pay all costs
related to the challenge. If the timeliness challenge is upheld., the
opposing (losing) party must pay all costs related to this challenge.
b. The arbitrator shall have the authority to make all determinations regarding
grievability and arbitrability. If the Department or the Union considers a
grievance non-grievable or non-arbitrable, it should communicate such
determination to the other party at the earliest possible time. A party raising
the issue of arbitrability of a grievance may require that a separate hearing
(meeting or teleconference) be held to decide the arbitrability issue. The
arbitrator will render a decision no later than three (3) days following the
meeting or teleconference and prior to any hearing on the merits of the
Section 10. Review of Outstanding Arbitration Cases
a. The Local 12 President, and/or his or her designees and the Director of the
Office of Employee and Labor-Management Relations, and/or his or her
designees, shall meet for a period of five (5) days three (3) times during the
first year of the collective bargaining agreement and for a period of five (5)
days two (2) times per year during each subsequent year of the collective
bargaining agreement to address outstanding arbitration cases. Each party
may designate up to two (2) representatives to participate in this process.
b. At this meeting, Management and Local 12 will review outstanding
arbitration cases, upon mutual agreement, will refer these cases to a thirdparty
mediator for potential settlement and resolution.
c. By mutual agreement, that parties may refer matters other than arbitration
cases to a third-party mediator for potential settlement and resolution.
d. Any arbitrations invoked within thirty (30) calendar days prior to the date on
which the five (5) day meeting period begins are not subject to this
e. Management and Local 12 agree that all costs related to the mediation
under this Section will be shared by the parties.