ARTICLE 11
Arbitration
SECTION 1. Within twenty one (21) calendar days after receipt of the final decision under Article 10, either Management (Assistant Administrator for NWS or designee) or the Union (National President or designee) may invoke arbitration by notifying the other party in writing.
INVOKING ARBITRATION
The grieving party shall advise the Federal Mediation and Conciliation Service (FMCS) that a dispute exists and shall request a list of seven (7) impartial arbitrators who are qualified by virtue of experience, background or training to arbitrate grievances in the Federal (U.S.) Sector. The grieving party shall request that a copy of the list be furnished to each party. A copy of this correspondence and the designation of the representative shall be served simultaneously on the other party on the day of the request. The receiving party will then provide a written designation of its representative. The designated representatives should contact each other within two weeks after receipt of the lists to arrange for selection of an arbitrator.
Within twenty-five (25) days after receiving the list, the parties will make the final selection. 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 shall strike first. If the selected arbitrator is not available, the parties may agree to request another list or select someone else from the same list. Each party will notify, in writing, with a copy to each other, the FMCS and the arbitrator of his/her selection.
SECTION 2. PREPARATION FOR ARBITRATION
A. A grievance file will be established by Management which is to be referred to arbitration. Copies of this file will be provided to the arbitrator within fifteen (15) days after the selection. The file shall contain the grievance and response(s), a copy of this Agreement, and where appropriate, a copy of any statute, rule, regulation, or policy alleged to have been violated.
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.
C. Unless the parties agree that the matter may be resolved solely on the basis of the written jointly stipulated record (as required by Section A and B above) of the grievance procedure, the arbitrator shall hold a hearing, and the parties shall be permitted to call witnesses and present evidence and oral/or written arguments.
SECTION 3. SITE AND TIME
A. Arbitration hearings will be held on NWS premises at the grievant's duty station when practicable. Should the grievant change his/her duty station, the hearing shall be held where the grievance occurred, or at any site mutually agreed to by the parties. The arbitration site for grievances filed by Management or the Union under Article 10, Section 9 shall be determined by mutual agreement. Failing such agreement, the arbitrator will determine the site.
B. The hearing shall normally be held during regular business hours, Monday through Friday.
C. The arbitrator will set the date of the hearing with the concurrence of the parties' representatives. Once that date has been established, any party that unilaterally requests an arbitration hearing be delayed, postponed, and/or canceled for whatever reason shall pay any and all fees. Payment of any non-refundable travel expenses will be determined by the General Services Administration.
D. In any grievance where the parties mutually agree to delay, postpone and/or cancel an arbitration proceeding, the parties will equally pay all fees.
SECTION 4. WITNESSES
A. The grievant, the grievant's technical representative and all employees who are called as witnesses will be excused from duty to the extent necessary to participate in the arbitration proceedings without loss of pay or charge to annual leave provided that the NWSEO gives Management advance notice of at least seven (7) calendar days prior to the posting of the "fixed" work schedule covering the date(s) of the hearing.
B. If Management determines that it is not practicable operationally to comply with a request for a witness, the management representative shall notify the arbitrator and the Union of the reasons for that determination. If, in the arbitrator's judgment, the witness is essential to a full and fair hearing, he/she may postpone or continue the hearing until such time as Management is able to comply with his/her request. Any costs incurred shall be shared equally by the parties. Management agrees to issue no cost refundable travel orders to NWSEO witnesses in order to use the Government rate.
C. Both parties agree to call only the minimum number of witnesses necessary to present their case.
D. Witnesses who are permitted to remain after giving testimony are not authorized official time to do so. However, a union technical representative, who is also a witness, may remain during the entire proceedings on official time. A management technical representative who is also a witness may remain during the entire proceedings.
E. Under no circumstances will NWSEO witnesses or representatives be authorized overtime or premium pay as a result of participating in these proceedings.
SECTION 5. ARBITRATION COSTS
A. The parties will each pay one-half of the regular fees and expenses of the arbitrator hearing the case.
B. If the arbitrator requires a transcript, each party will pay one-half of the cost. The transcript will be made by a certified court reporter. Costs will be limited by GSA regulations for the court reporter and the transcript.
C. Where a party has been accorded full opportunity to appear before the arbitrator and be heard, the party cannot complain with the result if they voluntarily choose not to appear. In this case, the party failing to appear shall pay the whole cost of the arbitration.
D. 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 by the parties.
E. In the event that either party solely desires a transcript that party shall bear the entire cost. The other party is not entitled to a free copy.
F. All other expenses which the parties agree to incur shall be shared equally.
G. Travel and other costs for Management representatives and witnesses shall be paid by Management.
H. Travel and other costs for Union representatives and witnesses shall be paid by the Union, except as provided in Section 6.
SECTION 6. ATTORNEY FEES
A. The arbitrator must determine that any attorney fees be consistent with 5 U.S.C. 5596 and 5 U.S.C. 7701(g)(1) and (2), and the Attorney retained by NWSEO must present appropriate and customary documentation of fee entitlement.
B. Upon the issuance of an award, the arbitrator shall retain jurisdiction to determine the entitlement to attorney fees, if any.
SECTION 7.
A. The arbitrator shall limit his/her decision strictly to the application and interpretation of the provisions of this Agreement and shall be without power or authority to make any decisions which:
1. Are contrary to or inconsistent with, or modifying, adding, deleting, varying, in any way, the terms of this Agreement or of applicable law, rules, or regulations governing the Federal sector.
2. Involve the exercise of statutory or discretionary rights of both parties under the provisions of this Agreement or under applicable law, rules or regulations, unless otherwise waived by the Agreement.
SECTION 8. 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.
SECTION 9.
A. 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, he/she should request an extension of time from the parties.
B. The Arbitrator's award will be sent to both parties simultaneously.
C. Either party may remand the issue 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.
SECTION 10. Any party withdrawing from arbitration, absent settlement, agrees that the grievance at issue is null and void and cannot be raised again.
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