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Article 48 Arbitration
Posted On: Nov 21, 2013

Article 48

Arbitration

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

parties.

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

involved.

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

been heard.

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

arrangements.

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

than $500.00.

Section 4. Submission of Case for Decision by the Arbitrator Without a

Hearing

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

premises.

Section 7. One-Day Arbitration

a. The parties shall use the one-day arbitration procedure for all grievances

except:

(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

Arbitrations Cases

(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

parties.

(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

evidence.

(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

this Article.

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

grievance.

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

provision.

e. Management and Local 12 agree that all costs related to the mediation

under this Section will be shared by the parties.


 
 
AFGE Local 12
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