Article 44
Arbitration
History

Section 1. Panel of Arbitrators

a. The parties shall maintain a panel of six (6) arbitrators. The panel shall be used for both regular and expedited arbitrations; however, separate rosters will be maintained in alphabetical order for regular and expedited 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 to hear a particular case shall be designated, upon the Department's receipt of the Union's invocation, from the list maintained in the Office of Employee and Labor-Management Relations (OELMR). Arbitrators shall be designated on a rotating basis in the order that their names appear on the appropriate roster. If the case is for expedited arbitration, the arbitrator will be selected from the expedited arbitration roster; if for regular arbitration, from the regular arbitration roster.
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 shall be assigned to that arbitrator; however, the arbitrator shall hear and decide any case assigned prior to the receipt of the written notice of removal.
e. Within thirty (30) calendar days after written notice of an arbitrator's removal, the parties shall meet and mutually agree upon another arbitrator to replace the removed arbitrator, using the selection method set forth in Subsection b. above. The newly selected arbitrator shall be placed on both the expedited and regular arbitration rosters in alphabetical order.
f. OELMR shall be responsible for communicating with the arbitrators about their inclusion on or removal from the panel, their assignments, and the scheduling of their assigned cases, subject to oversight by the Union.

Section 2. Cost of Arbitration

a. Management shall pay the arbitrator's fees and expenses for the first five (5) regular arbitrations and first five (5) expedited arbitrations each contract year. There shall be no carryover credit from one year to the next for unused arbitrations.
b. Management will pay for such transcripts as may be requested by either party with respect to such arbitrations as may occur under this Article. Where such a transcript is made, a copy of it will be furnished to both the Union and the arbitrator.
c. After the first five (5) regular arbitrations and first five (5) expedited arbitrations, the arbitrators' fees and expenses for any additional arbitrations held during the remainder of the year will be paid by both parties in equal proportions.

Section 3. Scheduling of Arbitration Hearings

a. The parties shall schedule hearing dates with the arbitrators on the panel in advance on a rotating basis. The purpose of this is to ensure that there are available dates each month for arbitrations to be held. There shall be at least one (1) date each month scheduled for expedited arbitration and at least one (1) date each month scheduled for regular arbitration.
b. 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.
c. Except for cases in which a personnel action has been stayed pursuant to Article 43, Section 13, hearings in regular (non-expedited) arbitration cases must be held within ninety (90) calendar days of invocation of arbitration.
d. Arbitration hearings in cases in which a personnel action has been stayed pursuant to Article 43,Section 13 must be held within thirty (30) calendar days of invocation of arbitration.
e. Hearings in expedited arbitration cases must be held within thirty (30) calendar days of invocation of arbitration.
f. If a hearing is postponed or canceled at such a late date that a cancellation fee is charged by the arbitrator, the party requesting the postponement or cancellation shall pay the cancellation fee.

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 and argument, without the necessity of a hearing.

Section 5. Prehearing Procedures

a. No later than fourteen (14) workdays before a scheduled hearing, the parties shall meet to clarify the issues and explore possible resolution of the case.
b. No later than five (5) workdays before the hearing, the Union and Management representatives shall meet to exchange witness lists, stipulate the issue or issues, and agree on joint exhibits and joint stipulations of fact. If the parties cannot agree on a joint stipulation of the issues, the parties shall exchange separate statements of the issues at this meeting.

Section 6. Hearing Site

The Department shall provide the hearing site, usually on the Department's premises.

Section 7. Expedited Arbitration

a. The parties agree to use expedited arbitration for the purpose of timely resolution of noncomplex disputes.
b. Expedited arbitration will be used for grievances pertaining to the following subjects:

(1) Written counseling, warnings, reprimands, or admonishments or suspensions of fourteen (14) days or less;
(2) Leave restriction letters;
(3) Absent Without Leave (AWOL) charges;
(4) Removal from flexitime;
(5) Performance appraisals where only element rating(s) is (are) challenged;
(6) Merit staffing grievances where the sole issue is whether the grievant was improperly excluded from the certificate of eligibles; or
(7) Denial of within-grade increases.

c. By mutual consent of the parties, grievances other than those listed in Subsection b. of this Section may be invoked to expedited arbitration.
d. Expedited arbitration will not be used to resolve disputes where the subject matter includes:

(1) an allegation of discrimination on the basis of race, color, religion, sex, national origin, age, or disability;
(2) an allegation of a prohibited personnel practice within the meaning of 5 U.S.C. 2302(b);
(3) a question of contract interpretation; or
(4) a charge of an unfair labor practice.

e. Time Parameters and Conduct of Hearing

(1) An expedited arbitration hearing will be conducted in one (1) day. Each party will have up to three (3) hours to present its case, including rebuttal, to cross-examine the other party's witness(es), and to present oral argument.
(2) The expedited arbitration hearing shall not be transcribed, and neither party shall file a brief or any other written argument.

Section 8. Authority and Decision of the Arbitrator

a. In both expedited and regular arbitration cases, the jurisdiction and authority of the arbitrator shall be confined to the issue(s) pertinent to the grievance, the interpretations and applications related thereto, consistent with the definition of a grievance provided in Article 43, Section 2 of this Agreement.
b. The arbitrator will have no authority to add to, subtract from, alter, amend, or modify any provision of this Agreement.
c. In expedited arbitration cases, the arbitrator's decision will 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.
d. In expedited arbitration cases, the arbitrator's decision will set no precedent and will be confined to the disposition of the case to which the decision is addressed.
e. In regular (non-expedited) arbitration cases, the arbitrator shall render and serve the written award on both parties within thirty (30) calendar days of the close of the record.
f. The arbitrator's decisions will be final and binding, except as provided by law.

Section 9. Grievability and Arbitrability

The arbitrator shall have the authority to make all determinations respecting grievability/arbitrability. If the Department considers a grievance non-grievable or non-arbitrable, it should communicate such determination to the Union at the earliest possible time. In order to raise the issue at arbitration, the Department shall advise the Union no later than twenty (20) workdays after invocation and at least ten (10) workdays before the hearing.