ARTICLE 10
Arbitration
SECTION 1. Invoking Arbitration.
A. Within 30 calendar days after receipt of the final decision under Article 9 , either Management (NOAA General Counsel or designee) or the Union (National President or designee) may invoke arbitration by notifying the other party in writing.
B. Within ten calendar days of issuing an arbitration notice, the moving party shall advise the Federal Mediation and Conciliation Service (FMCS) that a dispute exists, and shall request a list of seven impartial arbitrators who are qualified by virtue of experience, background, or training to arbitrate grievances in the Federal (U.S.) Sector, and who reside in the local commuting area where the arbitration hearing will be held. The arbitrators' list may be fewer than seven if seven are not available in the local commuting area. The moving party shall request that a copy of the list be furnished to each party. A copy of this correspondence and the designation of the moving party's representative shall be served simultaneously on the other party on the day of the request. The non-moving party shall immediately provide a written designation of its representative.
Within five working days of receipt, either party may reject the entire list and request a new list. If neither party rejects the list or upon receipt of the new list, within 15 calendar days after receiving the arbitrators' list, the parties' designated representatives shall select an arbitrator. This will be accomplished by first Management and then the Union alternately striking names until only the selectee remains. On the next occasion, the Union will strike first. If the selected arbitrator is not available, the parties may agree to request another list or may select someone else from the same list. The moving party will notify (in writing, with a copy to the other party) the FMCS and the arbitrator of the selection.
SECTION 2. Preparation for Arbitration.
A. Management shall compile the complete record of the matter being referred to arbitration. The record shall contain relevant records (including the grievance, the response(s), any supporting documentation, a copy of this Agreement, and, where appropriate, a copy of any statute, rule, regulation, or policy alleged to have been violated). Copies of the record shall be provided to the arbitrator within 15 calendar days after selection.
B. The arbitrator shall hold 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. If, for any reason, the arbitrator does not hold a pre-hearing conference, Management and the Union shall hold a conference to resolve such issues.
C. Unless the parties agree that the matter may be resolved solely on the basis of the written record, the arbitrator shall hold a hearing, and the parties shall be permitted to call witnesses and present evidence and oral and/or written arguments.
SECTION 3. Scheduling.
A. Arbitration hearings shall be held within the grievant's commuting area, unless the parties mutually agree to a different location.
B. The arbitrator will set the date of the hearing with the concurrence of the parties and/or their designated representatives. The Union and Management agree that the arbitration hearing will normally be held during regular duty hours. No overtime, compensatory time, or credit hours are authorized for or as a result of the arbitration hearing.
C. When a date for the arbitration hearing has been agreed to by the arbitrator and both parties, no postponement of the hearing date will be sanctioned unless by mutual agreement of the parties, in writing. If a delay is agreed to by the parties, the party requesting the delay will be responsible for communicating with the arbitrator and requesting a new hearing date.
SECTION 4. Appearance of Witnesses.
A. In accordance with the provisions of Article 7 , the grievant, the grievant's representative (if an agency employee), and all agency employees who are called as witnesses who are otherwise in duty status will be excused from duty to the extent necessary to participate in the arbitration proceedings without loss of pay or charge to annual leave. The arbitrator shall apply Federal Rule of Evidence 615 on exclusion of witnesses. However, a party's technical representative who is also a witness may remain during the entire proceeding.
B. To reduce hearing costs, the arbitrator is authorized to use telephone and written testimony and cross-examination, or to decide the matter solely on written submissions, to the extent consistent with the parties' right to a full and fair hearing.
SECTION 5. Arbitration Costs.
A. The parties will each pay one-half of the regular fees and expenses of the arbitrator hearing the case. All other expenses that the parties agree to incur shall be shared equally.
B. The parties will bear the costs equally of a transcript if one is required by the arbitrator. The transcript will be made by a certified court reporter. 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. In the event that either party solely desires a transcript, that party shall bear the entire cost.
C. Each party's travel and other costs for its representatives and witnesses shall be borne by that party, unless mutually agreed otherwise. Management agrees to issue no-cost refundable travel orders to Union representatives and witnesses in order to use the Government rate.
D. 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. Attorney fees may be awarded in accordance with applicable law.
B. Within 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. The Union's request must be accompanied by appropriate and customary documentation of fee entitlement. Within 15 calendar days of submission of the Union's request, Management shall submit its response, and serve it on the Union. The arbitrator may grant extensions of these time limits for good cause.
SECTION 7. Arbitrator's Award.
A. The arbitrator's award shall be limited to the application and interpretation of the provisions of this Agreement and applicable law. The arbitrator shall not have power or authority to make any decisions that:
(1) Are contrary to, inconsistent with, or modify, add, delete, or vary, in any way, the terms of this Agreement or of other applicable law or regulations governing the Federal sector.
(2) Involve the exercise of statutory or discretionary rights of either party under the provisions of this Agreement or under applicable law, rules, or regulations, unless provided for by this Agreement.
B. The arbitrator is bound by the Federal Mediation and Conciliation regulations 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, an extension of time should be requested from the parties.
C. The arbitrator's award will be sent to both parties simultaneously.
D. Either party may remand the decision 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. Any additional expense shall be paid by the requesting party.
E. The arbitrator's award shall be binding on the parties. However, either party may file an exception to an award, when made under regular arbitration procedures, with the Federal Labor Relations Authority under rules prescribed by the Authority.
SECTION 8. Award of Back Pay.
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 5 U.S.C. 5596 of the Back Pay Act is entitled to the payment of interest.
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