ARTICLE 11

ARBITRATION

SECTION 1. The parties agree that prior to considering arbitration, every reasonable effort shall be made to resolve arbitrable grievances and will direct their efforts and resources toward achieving that goal. If such efforts fail, the grievances may, or the question of grievability/arbitrability may, upon written request of Management or the Union, whichever party is desiring arbitration, be referred to an arbitrator. Arbitration may be invoked only by the Union or the Employer.

SECTION 2. Arbitration will be invoked by submission of a written statement so stating to the other party not later than 10 calendar days after receipt of a final decision on a matter grieved through the required steps of Article 10 on matters mutually agreed as grievable. Within five (5) days initiating party will request from the Federal Mediation and Conciliation Service a list of five (5) impartial persons qualified to serve as arbitrators. A copy of this request will be provided the other party. Immediately upon receipt of this list, the receiving party will provide one (1) copy of the list to the other party.

SECTION 3. If the parties cannot mutually select an arbitrator from the list within seven (7) calendar days, then Management and the Union will alternately strike a name from the list until one remains. The remaining person will be the duly selected arbitrator. The initiating party will strike the first name,

SECTION 4. Following selection of the arbitrator and indications of his/her availability, the parties wilt attempt to agree in writing upon the precise issue(s) to be decided and will submit a joint statement to that effect in advance of any arbitration proceedings. The statement will present in question form the matter upon which the arbitration is sought and shall include the agreement provisions governing arbitration. If the parties are unable to concur, each party will specify the issue in writing with copies to each other and the arbitrator. The initiating party shall include with its statement of issues the redress it expects from arbitration. The arbitrator shall determine the issue(s) to be heard. The arbitrator will limit the award solely to the resolution of the issue(s) as specified in writing by the initial statement or statements as specified by the parties, and nothing further.

SECTION 5. The arbitration hearing will normally be held on the Employer's premises during the regular work hours, Monday through Friday. The Union agrees to notify the Employer, in writing, at least five (5) workdays before the hearing date, of any employee witnesses it intends to call, so that arrangements may be made for the use of official time if possible. However, under no circumstances will overtime or compensatory time off be authorized under this section for either participants or witnesses called.

SECTION 6. At the arbitration hearing, the party requesting arbitration will present its case first and will have the burden of proving its case. The only exceptions to burden of proof on the initiating party will be when the issue is the merits of an adverse personnel action having statutory review (appeal) procedures available and the issue has been raised solely under the negotiated grievance procedure. In this sole situation, the burden of proof on the Employer is: for disciplinary actions based on personal acts or omissions--the preponderance of evidence; for inefficiency-substantial evidence of defective (unsatisfactory) performance in one or more major duties as described in the individual's official position description and written performance standards. The other party will follow by presenting its case. Each party has the right to submit evidence in rebuttal,

    a. All witnesses will be sworn and no witnesses may be present in the hearing room except while testifying.
    b. Post-hearing briefs may be submitted.

     

SECTION 7. If both parties agree that no hearing is necessary, the parties will so advise the arbitrator. The arbitrator will advise both parties in writing as to what issue or issues will be decided before requesting or accepting evidence, briefs, or other written documents submitted by the parties. Upon receipt of that information each party may submit written evidence, agreements or briefs to the arbitrator and other party, simultaneously.

    a. The arbitrator will specify the date by which all evidence and arguments must be submitted to him/her, with the date to be no earlier than 10 days after receipt of the tentative issues to be decided by the arbitrator.
    b. Written briefs may be submitted after the date all evidence must be submitted.

     

SECTION 8. In fashioning an award, the arbitrator shall not add to, subtract from, or otherwise modify any of the terms of this Agreement; nor shall the arbitrator substitute his or her discretion for that of the Employer or the Union whose either party has such discretion by virtue of the terms of this Agreement. The arbitrator shall interpret the existing provision(s) of the agreement and apply them to the specific facts of the grievance. The award shall conform to law, executive orders and rules and regulations of appropriate authorities.

SECTION 9. The cost of arbitration, if any, shall be shared as follows:

    a. Arbitrator's fees and expenses shall be shared equally by the parties.
    b. If a transcript is required by the arbitrator, and/or it appears the grievance may subsequently be heard by MSPB or EEOC, the cost shall be shared equally by the parties. When a transcript is not required by the arbitrator, but either party desires a transcript, the requesting party shall bear the cost. If both parties desire a transcript, the costs shall be shared equally. The transcripts, where required by the arbitrator or by mutual agreement of the parties, shall be executed by a certified court reporter.
    c. All other costs which the parties mutually agree to incur shall be shared equally.
    d. Travel and other costs for management representatives and witnesses; paid by the Employer.
    e. Travel and other costs for Union representatives and witnesses: paid by the Union.

     

SECTION 10. Any dispute over the application of an arbitrator's award shall be returned to the arbitrator for settlement, including remanded awards.

SECTION 11. The arbitrator will be requested to render an award as quickly as possible, but in no event later than 30 days after the conclusion of the hearing, the period during which the arbitrator will accept evidence, or the filing of post-hearing briefs, whichever occurs later, unless the parties agree to a longer time. In rendering the award, the arbitrator will present to both parties a written opinion stating clearly the decision, award and underlying reasoning. The opinion will state specifically what issue or issues the arbitrator decided.

SECTION 12. Either party may file exceptions to an arbitration award with the Federal Labor Relations Authority under regulations prescribed by the Authority. The filing of such an exception shall act to stay the effect of an award until final adjudication by the FLRA.


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