Article 33: Arbitration

Section 1

A. Any unresolved grievances processed under Article 32 (Grievance Procedure) of this Agreement, or any challenges to adverse or unacceptable performance actions, may, upon written notification by the Union or the Employer, be appealed to binding arbitration. The request for arbitration will be made within thirty (30) calendar days after receipt of the final decision in the grievance procedure or the written decision letter in an adverse or unacceptable performance action. If, in the case of an unresolved grievance, no final decision has been issued, the request will be made within thirty (30) calendar days from the date such decision should have been issued.

B. If the Union makes a request for arbitration, it shall be in writing and served on the Assistant Director of OHR for Employee and Labor Relations via email and mail (to 100 F Street, NE, Washington, DC 20549 (Mail Stop 3949).  If the Employer makes a request for arbitration, it shall be in writing and served on the National President of NTEU, with a copy to the Chapter 293 President via email and mail.

Section 2

A. The Parties already have established permanent panels for hearing arbitration appeals filed by the Union or the Employer under their previous agreements, and those panels shall be carried over to the current agreement.

B. Either party may unilaterally remove one arbitrator from the panel during each twelve (12) month period of this agreement by giving notice to the other party and the arbitrator.  The parties may also mutually agree to strike any arbitrator from the panel at any time.  Upon receipt of that notice, no further cases will be assigned to that arbitrator, but the arbitrator will hear and decide any cases already assigned.

C. Within thirty (30) days, or such other time as agreed upon by the parties, of the removal or other action creating a vacancy on the panel, the Parties shall attempt to agree upon a replacement.  If the Parties cannot agree to a replacement within this timeframe, the Parties shall promptly and jointly request from the FMCS, AAA or any other source a list of five (5) impartial persons qualified to act as arbitrators for each vacancy.  The parties may agree to individual arbitrators without seeking lists.

D. The cost of the list, if any, will be shared equally by the Parties. If the Parties cannot mutually agree upon a selection, the Parties will then alternately strike names of persons from the list until one (1) name remains.  This person shall be the duly selected arbitrator to fill the vacancy.  A coin flip will determine which Party will strike first.

E. Within thirty (30) calendar days after receipt of a request for arbitration, the Parties will assign the case to the next arbitrator on the panel, on a rotational basis.  The same panel of arbitrators will be used for expedited arbitration.

Section 3

The arbitrator's fees and all of the arbitrator's expenses, including travel expenses, incurred under this procedure shall be borne equally by the Parties.  Unless the parties agree otherwise, a verbatim transcript of the hearing will be made.  If either Party desires a copy of the transcript, that party will bear the expense of the copies it obtains. The Parties will share equally the cost of the transcript, if any, supplied to the arbitrator.

Section 4

A. The arbitrator will hear the grievance as promptly as practicable, on a date and at a site, normally the Employer's premises, mutually agreeable to the Parties.

B. Once the hearing date has been established, a Party unilaterally requesting that an arbitration hearing be postponed, delayed, or cancelled, for any reason that results in fees being charged by the arbitrator or the court reporter, will pay any and all fees associated with the requested change.  The fact that one Party has no objection to the request of the other Party for postponement, delay, or cancellation of the arbitration hearing will not absolve the requesting Party from the paying of all the fees being charged.

C. In any case where the Parties mutually agree to postpone, delay, or cancel an arbitration proceeding, the Parties will share equally the cost of any fees being charged by the arbitrator or the court reporter which are associated with the requested change.

D. The Parties will exchange lists of potential hearing witnesses fifteen (15) calendar days prior to the scheduled hearing.  The Employer will make reasonable efforts to produce Agency employees as witnesses if requested by the Union.  Each Party has the responsibility and obligation to produce its witnesses on the day of the hearing, and each Party will bear its own witnesses' expenses, including travel.  Where practicable, the parties may mutually agree to allow witnesses to testify by telephone, video-conference or other electronic means.  The grievant and all employees who are called as witnesses will be excused from duty to the extent necessary to participate in the arbitration hearing, without loss of pay or charge to annual leave.

E. In determining whether to conduct an ex parte hearing, an arbitrator must consider relevant legal, contractual, and other pertinent circumstances.  If the arbitrator concludes that an ex parte hearing is appropriate, the arbitrator will decide how the hearing will be conducted.  The arbitrator must be certain, before proceeding ex parte, that the party refusing or failing to attend the hearing has been given adequate notice of the time, place and purposes of the hearing.  Copies of any briefs and decisions will be served on the other party.

F. The arbitrator shall submit their decision to the Employer and the Union advocate as soon as possible, but in no event later than thirty (30) calendar days following the close of the record before them, unless the Parties waive this requirement.  The arbitrator's decision is final and binding.

Section 5

A. The arbitrator shall have the authority to make all arbitrability/grievability determinations.  However, either party retains the right to file an appeal or exceptions to any decision rendered by the arbitrator regarding arbitrability/grievability.

B. The arbitrator will confine themself to the precise issue submitted for arbitration and will have no authority to determine any other issues not so submitted.  If the Parties fail to agree on a joint submission of the issue for arbitration, each will present a separate submission, with a copy to the other Party, and the arbitrator will determine the issue(s) to be heard.

Section 6

The Parties may, by mutual agreement, stipulate the facts and the issue in a particular case directly to an arbitrator for decision without a formal hearing.

Section 7

A. The decision of the arbitrator will be final and binding.  However, either Party may file an exception to the arbitrator's decision with the Federal Labor Relations Authority (FLRA) in accordance with the FLRA's regulations.

B. The arbitrator shall possess the authority to prescribe remedies to the extent provided under pertinent laws, rules, and regulations. An arbitrator has the authority to award reasonable attorney fees in accordance with applicable law.

C. The jurisdiction, authority, and expressed opinions of the chosen arbitrator will be confined exclusively to the interpretation of the expressed provision or provisions of this Agreement at issue between the Parties.  Arbitrators must follow laws, binding government-wide regulations, and applicable precedents. The arbitrator has no power to add to, subtract from, disregard, alter, or modify any terms of this Agreement or the Employer's policy and regulations.

Section 8

A. When the Parties settle the matter prior to an arbitration hearing and there are fees charged due to the cancellation of the hearing, both Parties will equally share the cost of any fees being charged.

B. The Parties have the right to present and cross-examine witnesses and issue opening and closing statements.

C. The arbitrator may exclude testimony or evidence that is determined to be irrelevant or unduly repetitious.

D. Either Party may ask the arbitrator to draw an appropriate inference when either Party fails to present facts or witnesses that the arbitrator deems necessary and relevant.

E. Testimony shall be under oath or affirmation.

F. Either Party may introduce bargaining history at the hearing. By agreement, bargaining history also may be provided to the arbitrator by telephone or fax.

Section 9

A. A grievance concerning the following matters may be submitted for expedited arbitration:

  • Dues withholding,
  • Denials of Official Time,
  • Improper maintenance of personnel records,
  • Denials of a work schedule or telework request,
  • Bulletin board postings or literature distribution by the union, or
  • Denials of an outside employment request.

B. The request for expedited arbitration will be made within fifteen (15) calendar days after receipt of the final decision in the grievance procedure.  If no final decision has been issued, the request will be made within fifteen (15) calendar days from the date such decision should have been issued.  The arbitrator will be selected in the same manner as provided for in Section 2 above.  An arbitrator unable to hear an expedited arbitration case within thirty (30) calendar days will be deemed unavailable and the Parties will select another arbitrator.

C. The hearing will be conducted as soon as possible and will be informal in nature.  The Parties may arrange for a pre-hearing conference with or without the arbitrator to consider means of expediting the hearing.  The arbitrator will issue a decision as soon as possible, but no later than twenty (20) calendar days after the official closing of the hearing, unless otherwise agreed by the Parties. By mutual agreement, the arbitrator may issue a bench decision.