ARTICLE 10 - Arbitration

SECTION 1.  Within thirty (30) calendar days after receipt of the final decision under Article 9, either Management (Commanding Officer,  AOC or designee) or the Union (President or designee) may invoke arbitration by notifying the other party in writing.

INVOKING ARBITRATION:

The grieving party shall advise the Federal Mediation and Conciliation Service (FMCS) that a dispute exists and shall request a list of seven (7) impartial arbitrators who are members of the National Academy of Arbitrators.  The grieving party shall incur all FMCS expenses and request that a copy of the list be furnished to each party.  A copy of this correspondence and the designation of the representative shall be served simultaneously on the other party on the day of the request.  The receiving party will then provide a written designation of its representative.

Within fourteen (14) calendar days after receiving the list, each party will accept or reject the list in its entirety. If the list is rejected by either party, that party shall request a new list as stated above and incur all associated costs. Each party can unilaterally reject a list one time.  Lists may be rejected by mutual agreement any number of times. If the list is mutually rejected, the party invoking arbitration will request another list and the parties will equally share the associated cost. Once the list is accepted by both parties, the parties agree to make the final selection within 21 days of the receipt of the accepted list.

Selecting an arbitrator will be accomplished by first management and then the union alternately striking names until only the selectee remains. On the next occasion, the union shall strike first.  On subsequent arbitrations management and the union shall continue to alternate the first strike.  If the selected arbitrator is not available, the parties may agree to request another list or select someone else from the same list.  Each party will notify, in writing, with a copy to each other, the FMCS and the arbitrator of his/her selection.

SECTION 2.  Preparation for Arbitration
A.  A grievance file will be established by Management which is to be referred to arbitration.  Copies of this file will be provided to the arbitrator within thirty (30) days after the selection.  The file shall contain the grievance and response(s), any supporting documentation, and a copy of this agreement.

B.  A pre-hearing conference (telephonic or as agreed) to assist in framing or narrowing the issues, to receive joint stipulations, to schedule the hearing, and to assist in resolving remaining questions regarding the arbitration procedures shall be held.  The parties agree to hold this conference with or without the arbitrator’s participation.

C.  Unless the parties agree that the matter may be resolved solely on the basis of the written jointly stipulated record (as required by Section A and B above) of the grievance procedure, the arbitrator shall hold a hearing, and the parties shall be permitted to call witnesses and present evidence and oral/or written arguments.

SECTION 3. Site and Time
A.  Arbitration hearings will be held at the Aircraft Operations Center or at a mutually agreed-upon site.

B.  The hearing shall normally be held during regular business hours, Monday through Friday.

C.  The arbitrator will set the date of the hearing with the concurrence of the parties' representatives.  Once that date has been established, any party that unilaterally requests an arbitration hearing be delayed, postponed, and/or canceled for whatever reason shall pay any and all costs and fees associated with that change.

D.  In any grievance where the parties mutually agree to delay, postpone and/or cancel an arbitration proceeding, the parties will equally pay all fees associated with that change.

SECTION 4. Witnesses

A.  The grievant, the grievant's technical representative and all employees who are approved by the arbitrator as witnesses will be excused from duty to the extent necessary to participate in the arbitration proceedings without loss of pay or charge to annual leave provided that the union gives Management advance notice of at least seven (7) calendar days prior to the hearing. Technical representatives who are also witnesses may remain during the entire proceeding.

B.   If Management determines that it will cause a disruption in its ability to carry out the Agency=s mission by complying with a request for a witness, the management representative shall notify the arbitrator and the Union of the reasons for that determination.  If, in the arbitrator's judgment, the witness is essential to a full and fair hearing, he/she may postpone or continue the hearing until such time as Management is able to comply with his/her request.

C.  Both parties agree to call only the minimum number of witnesses necessary to present their case.

D.  Bargaining Unit employees who are permitted to remain after giving testimony are not authorized official time to do so.

E.  Under no circumstances will union witnesses or representatives be authorized overtime or premium pay as a result of participating in these proceedings.

SECTION 5.  Arbitration Costs

A.  The parties will each pay one-half of the regular fees and expenses of the arbitration proceedings and the arbitrator hearing the case.

B.  If the arbitrator requires a transcript, each party will pay one-half of the cost.  The transcript will be made by a certified court reporter.

C.  When a transcript is not required by the arbitrator but mutually desired by the parties, the cost of a certified court reporter and the transcript will be shared equally by the parties.

D.  In the event that either party solely desires a transcript, that party shall bear the entire cost.  The other party is not entitled to a free copy.

E.  All other expenses which the parties agree to incur shall be shared equally by the parties.

F.  When either party invokes arbitration and fails to appear at an arbitration hearing, the appeal is withdrawn and the non-appearing party shall pay the entire cost of the arbitration.

SECTION 6.  Attorney Fees

A.  The arbitrator must determine that any attorney fees be consistent with applicable law, and any Attorney retained by the union must present appropriate and customary documentation of fee entitlement.

B.  Upon the issuance of an award, the arbitrator shall retain jurisdiction to determine the entitlement to attorney fees, if any.  Within thirty (30) calendar days of receipt of the arbitrator's award, the Union may submit a request for attorney fees.  The Union's request shall be simultaneously served on Management.  Within thirty (30) calendar days of receipt of the Union's request, Management shall submit its response.  Management's response shall be simultaneously served on the Union.  The attorney retained by the union will have fifteen days to reply after receipt of Management's submission.  The arbitrator shall have the authority to grant extensions and decide whether to accept further rebuttal briefs.

SECTION 7.
A.  The arbitrator shall limit his/her decision strictly to the application and interpretation of the provisions of this Agreement and shall be without power or authority to make any decisions which:

1.  Are contrary to or inconsistent with, or modifying, adding, deleting, varying, in any way, the terms of this Agreement or of applicable law, rules, or regulations governing the Federal sector.

2.  Involve the exercise of statutory or discretionary rights of both parties under the provisions of this Agreement or under applicable law, rules or regulations, unless otherwise waived by the Agreement.

SECTION 8.  In order for the Arbitrator to make an award of back pay under the Back Pay Act, there must be not only a determination that the aggrieved employee was affected by an unwarranted personnel action, but also a determination that such unwarranted action directly resulted in the withdrawal or reduction in the pay, allowances, or differentials that the employee would otherwise have earned or received.  An employee awarded back pay under applicable law may be entitled to the payment of interest.

SECTION 9.
A.  The arbitrator is bound by the FMCS regarding time deadlines for rendering arbitration awards.  When the arbitrator is unable to render an award within 60 days from the close of the hearing, he/she should request an extension of time from the parties.

B.  The Arbitrator's award will be sent to both parties simultaneously.

C.  Either party may remand the issue to the Arbitrator for the purpose of clarifying a decision or award.  A copy of notification for such purpose will be immediately furnished to the other party.

SECTION 10.  If the grieving party withdraws from arbitration, absent settlement, the specific grievance under arbitration is null and void and cannot be raised again.

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