Article 48
Arbitration

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. 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 designated to hear a particular case shall be assigned on a random basis from the list maintained in the Office of Employee and Labor-Management Relations (OELMR). After an arbitrator is selected, his/her name shall not be placed back into the selection pool until all other arbitrators have been selected. The process will then begin again. This process will be followed regardless of whether the arbitration is an expedited/mini or regular arbitration.
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 heard by or assigned to that arbitrator. Once an arbitrator is removed, all arbitrations assigned to but not heard by the arbitrator shall be returned to the arbitrator assignment pool for random assignment.
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.
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

Arbitration fees, transcripts, and other routine expenses will be paid by both parties in equal proportions; except in the case of a cancellation or postponement, wherein the moving party shall pay.

Section 3. Scheduling of Arbitration Hearings

a. 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.
b. An arbitrator who agrees to serve on the Panel will not charge the Parties if the hearing is postponed in excess of three (3) days of the scheduled hearing date. If the postponement occurs within three (3) or fewer days of the arbitration, arbitrators will be paid a fee of no more than $350.00.

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

No later than ten (10) workdays before a scheduled hearing, the parties shall meet to explore possible resolution of the case, clarify and stipulate the issue or issues, exchange witness lists, 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 written statements of the issues at this meeting or no later than five (5) workdays before the scheduled hearing.

Section 6. Hearing Site

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

Section 7. Expedited Arbitration

a. The parties shall use the expedited arbitration procedure for all grievances except:

(1) Institutional grievances (that is, where the Union or the Department are the grievant);
(2) For individual employee grievances involving suspensions of fifteen (15) days or more, up to and including removal as set forth in 5 U.S.C. § 7511; and
(3) For individual employee grievances involving performance based actions as set forth in 5 U.S.C. § 4303.

b. Nothing in this Section prohibits the parties from mutually agreeing to utilize either the regular arbitration or expedited arbitration procedures forum to hear any specific grievance.
c. 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 opening and/or closing arguments.
(2) The expedited arbitration hearing shall not be transcribed; however, the arbitrator may record the hearing.
(3) No briefs shall be filed unless mutually agreed to by the parties.
(4) Either party has the right to submit copies of applicable case law up to the close of the hearing.

Section 8. Authority and Decision of the Arbitrator

a. The arbitrator shall have the jurisdiction and authority to hear and decide the arbitration assigned to him/her except:

(1) The arbitrator will have no authority to add to, subtract from, alter, amend, or modify any provision of this Agreement.
(2) In accordance with Article 47, Section 5, the arbitrator will have no authority to address any matters excluded from the grievance procedure regardless of the specific allegation(s) or issue(s) raised.
(3) The arbitrator will have no authority to consider new issues, allegations and defenses raised by the grievant that he/she had not previously raised, in writing, at or before the Step 2 grievance meeting. In addition, mere references to an alleged violation of a contract article or to issues, allegations or defenses, without reference to the underlying facts and circumstances supporting the assertion, shall not be arbitrable.

b. The grievant, i.e., moving party, has the burden of proof regarding the merits of the grievance by a preponderance of the evidence with the following two exceptions: Management has the burden of proof regarding a performance-based action by substantial evidence in accordance with Chapter 43 of the Civil Service Reform Act, or a disciplinary or adverse action by a preponderance of the evidence in accordance with Chapter 75 of the Civil Service Reform Act.
c. Any disputes regarding arbitrability will be resolved in accordance with Section 9 of this Article.
d. In expedited arbitration cases, the arbitrator's decision should 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.
e. In regular (non-expedited) arbitration cases, the arbitrator should 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 altered on appeal or provided by law.

Section 9. Grievability and Arbitrability

The arbitrator shall have the authority to make all determinations regarding grievability and arbitrability. If the Department or the Union considers a grievance non-grievable or non-arbitrable, it should communicate such determination to the other party at the earliest possible time. A party raising the issue of arbitrability of a grievance may require that a separate hearing (meeting or teleconference) be held to decide the arbitrability issue. The arbitrator will render a decision no later than three (3) days following the meeting or teleconference and prior to any hearing on the merits of the grievance.