ARTICLE

40.

Section 1 - Notice to Invoke Arbitration

Only the Union or Management may refer to arbitration any grievance that remains unresolved after the final step under the procedures of the Article on Grievance Procedures. A notice to invoke arbitration shall be made in writing to the opposite party within thirty (30) calendar days after receipt of the written decision rendered in the final step of the grievance procedure.

Section 2 - Conventional Arbitration Procedure

A. On or after the date of the notice to invoke arbitration, the moving party will request the Federal Mediation and Conciliation Service (FMCS) to provide a list of seven (7) impartial persons to act as an arbitrator. The parties shall meet within ten (10) calendar days after receipt of such list to select an arbitrator (this may be done by telephone for national level grievances). If the parties cannot mutually agree on one of the listed arbitrators, then Management and the Union will alternatively strike one potential arbitrator's name from the list of seven (7) and will then repeat this procedure until one (1) name remains. The remaining person shall be the duly selected arbitrator. The parties will choose lots to determine who strikes the first name. Following the selection, the moving party will, within fourteen (14) calendar days, notify the Federal Mediation and Conciliation Service of the name of the arbitrator selected. A copy of the notification will be served on the other party. The time limits may be extended by mutual consent.

B. The procedures used to conduct an arbitration hearing shall be determined by the arbitrator. Both parties shall be entitled to call and cross-examine witnesses before the arbitrator. All witnesses necessary for the arbitration will be on duty time if otherwise in a duty status. On sufficient advance notice from the union, management will rearrange necessary witnesses' schedules and place them on duty during the arbitration hearing whenever practical. Such schedule changes may be made without regard to contract provisions on Hours of Duty. A reasonable amount of preparation time for arbitration will be granted in accordance with the provisions of Article ___ on official time and local supplementary agreements.

C. The arbitrator's fees and expenses shall be borne equally by the parties. If either party requests a transcript, that party will bear the entire cost of such transcript.

D. For single station local grievances, the site normally will be the facility where the grievance exists. At the Local's request, another site may be designated upon mutual agreement. If another site is used, the Local will pay the cost of the site. For grievances at the national level, the Department and the Council President will communicate to work out a mutually agreeable site for the arbitration.

E. The parties will attempt to submit a joint statement of the issue or issues to the arbitrator. If the parties fail to agree on a joint submission, each shall make a separate submission. The arbitrator shall determine the issue or issues to be heard.

F. The arbitrator's decision shall be final and binding. However, either party may file an exception to the arbitrator's award in accordance with applicable law and regulations. The arbitrator will be requested to render a decision within sixty (60) days. Any dispute over the interpretation of an arbitrator's award shall be returned to the arbitrator for settlement, including remanded awards.

G. An arbitrator's award shall have only local application unless it was a national level grievance or the matter was elevated to the national level under procedures set forth below. Where it is mutually agreed between the Council President and the Department within thirty (30) days after a local has filed a notice for arbitration, an arbitration dispute will be elevated to the national level. The arbitrator has full authority to award appropriate remedies, including reasonable legal fees, pursuant to the provisions of Section 702 of the Civil Service Reform Act, in any case in which it is warranted.

Section 3 - Expedited Arbitration Procedure

Conditions for Expedited Arbitration: notwithstanding regular arbitration procedures of the Agreement, the following expedited arbitration procedure is hereby adopted to provide prompt and efficient handling of specified grievances:

A. Operation of Rosters

1. Arbitrators participating in the program will be placed on rosters for each state in which their office is located. A biographic sketch will be provided by FMCS for each arbitrator listed. The Department will be provided a copy of the list(s) and biographic sketches sent to AFGE by the FMCS.

2. The local parties shall be provided the roster of available FMCS arbitrators for their area by the National Office of AFGE.

3. If, in selecting arbitrators for a local roster, the parties cannot agree with regard to a particular arbitrator, they may submit a joint written request to the FMCS for the direct appointment of a substitute arbitrator(s).

4. Once the parties have established their roster, the National Office of AFGE shall be promptly notified in writing and shall in turn promptly issue a written notification to the arbitrators concerned.

5. Arbitrators selected by the parties shall be placed on rosters established by them in alphabetical order and shall be selected in turn. If an arbitrator is not available for a hearing, that arbitrator shall be passed and not selected again until the time comes for the normal selection of that arbitrator again.

6. The parties may mutually agree to discontinue the services of arbitrators on their local rosters and select others from the regional roster to replace them.

7. The parties may mutually agree to arbitrators of their own selection who may be added to their local roster.

8. New arbitrators may be added from time to time to regional rosters.

B. Procedures and Time Limits

1. Upon receipt of a management decision at the last step of the grievance procedure, the Union President involved may notify management, in writing, of an intent to appeal to an arbitrator under the provisions of this program. The notice of intent to appeal must be made within thirty (30) calendar days of receipt of management's decision.

2. Within twenty (20) calendar days of the date of the notice of intent to appeal, the union and management may confer and the Union may telephone the arbitrator who--pursuant to the rotation system described above--is scheduled for the next hearing. A written confirmation notice shall be sent to the arbitrator, and a copy shall be furnished to the management official involved.

3. The arbitration hearing shall take place on the date(s) arranged by the union, management, and arbitrator; but in no case shall it take place later than ten (10) workdays after the phone call from the Union is received by the arbitrator.

4. In those situations in which multiple grievance cases fall within the time frames described in Paragraphs 1, 2, and 3 in this Section, more than one (1) case may be presented to the arbitrator for adjudication. However, except for performance appraisal cases involving the same performance standards, an arbitrator shall not be selected for more than two (2) consecutive days of hearings. The Union and Management may mutually agree to use a different arbitrator for different hearing days.

5. If the arbitrator is not available to conduct the hearing within the ten (10) workday limit, the next available arbitrator on the roster shall be notified until an available arbitrator is obtained.

6. If no arbitrator is available from the parties' local roster, the National Office of AFGE shall be informed so that a selection may be made by the parties from the list of available arbitrators on the regional roster.

7. If no arbitrator is available from the regional roster, the parties may make a joint written request to the FMCS which shall make a direct appointment of a substitute arbitrator.

8. If no arbitrators are willing or available for expedited arbitration, the regular arbitration procedures may be utilized.

C. Subjects Covered - These procedures shall be employed for the prompt resolution of grievances involving:

1. Any aspect of the performance appraisal plan;

2. Admonishments, reprimands, or suspensions of fourteen (14) days or less;

3. Other grievances mutually agreed to by the parties either on an ad hoc basis or as allowed under the parties' local supplemental agreement, except adverse actions shall not be heard under these procedures, unless agreed to by the grievant.

D. Conduct of Hearings

1. Upon being informed of the arbitrator to conduct the hearing, the employer may mail to the arbitrator a copy of the written record of the last step of the grievance procedure for the grievance(s) scheduled for hearing. A copy of any correspondence addressed to the arbitrator by either party in connection with cases will be submitted to the other party.

2. The arbitrator, after contacting both parties and arranging for the hearing date, time, and place, shall conduct the hearing pursuant to the following guidelines:

a. The hearing shall be informal,

b. There shall be no formal rules of evidence applied,

c. The parties will notify each other of its representative(s) prior to the hearing,

d. The arbitrator shall have the obligation and authority to assure that all relevant information is brought before the arbitrator by the representatives of the parties and shall insure that the hearing is a fair one,

e. If the arbitrator unilaterally or the parties mutually conclude at the hearing that the issues involved are of such complexity or significance as to require it, the case shall be referred to conventional arbitration under terms set forth in the parties' collective bargaining agreement. However, the moving party may choose to have the same arbitrator hear the grievance and continue the hearing by the use of regular procedures,

f. No briefs shall be filed,

g. The arbitrator may issue a bench decision at the hearing which shall be later confirmed in writing, but in any event shall render a decision within forty-eight (48) hours after conclusion of the hearing. This decision shall be based on the record developed by the parties and shall include a brief written explanation. The decisions will not be cited as a precedent by either party to the arbitration, and

h. It shall be the responsibility of the parties to thoroughly develop and prepare cases for prompt presentation.

E. Fees, Expenses, and Service of Copies

1. Arbitrators shall be paid a daily hearing fee which shall be the amount stated in the biographical sketch submitted to the parties by the FMCS.

2. Travel time and expenses (including meals and lodging) shall be paid when a hearing is held away from the city in which the arbitrator's office is located. Mileage expenses shall be paid at the current rate.

3. All fees and expenses of the arbitrator shall be paid as follows: one-half by the Union and one-half by Management.

4. In connection with each case, the arbitrator will be advised by the Union and Management of the appropriate officials to be billed.

5. Arbitrators shall be notified by the National Office of AFGE of the local parties which have agreed to employ them. If arbitrators change their fees or charges, they shall promptly notify the parties and the National Office of AFGE in writing. Arbitrators shall not charge any fees or add charges without giving at least thirty (30) calendar days advance written notice.

6. A copy of each award shall be sent to the National Office of AFGE and to the Department in addition to the participants in the hearing.

7. A joint committee may be established by the parties to serve as an information collection point, gather and schedule grievances, pay arbitration fees, monitor the efficiency of the procedure, and perform other necessary and appropriate duties.

F. Permanent Hearing Arrangement - In those locations where a sufficient number of grievances arise or a sufficient number of bargaining units exists in proximity to each other, and parties agree to do so, a permanent arbitration system may be established. The parties and arbitrators will conform to the provisions of Sections 3A, B, C, and D in this Article except as specifically provided for in the permanent system described below.

1. The arbitrator shall be scheduled for no less than one (1) day each month.

2. The hearing shall fall on the same day(s) each month. Any change of hearing day(s) shall be agreed upon by the parties and the arbitrator(s).

3. The parties shall determine whether they wish to have the same arbitrator serve as an umpire or whether they wish to rotate arbitrators from a mutually selected roster.

4. The arbitrator(s) shall be paid for the day(s) scheduled each month whether hearings are held or not in order to insure their availability.

5. All fees shall be divided equally between the parties involved.

6. A joint committee shall be established by the parties to serve as an information collection point and to gather and schedule grievances and perform other necessary and appropriate duties.

7. Arbitrations shall be held in the same location each month unless mutually agreed to otherwise by the parties and the arbitrator.