Article 23 arbitration



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ARTICLE 23

ARBITRATION



Section 23.01 - General. If a grievance remains unresolved despite efforts to resolve the matter under the negotiated grievance procedure, arbitration may be invoked by the grieving party, i.e., the Union or Management. A disciplinary action or unacceptable performance action may be referred directly to arbitration.
Section 23.02 - Notice. Either the Union or Management shall notify the other party of its submission of a matter to arbitration by giving written notice within twenty (20) calendar days of a final rejection at the last step of the grievance procedure, or Management's final notice of decision in a disciplinary action or performance based action. Such notice shall identify the specific grievance or disciplinary action involved and the designated representative who shall handle the case.
Section 23.03 - Selection. When an established panel is used as the source of arbitrators, the parties shall meet to select an arbitrator within five (5) workdays from the date of the notice of arbitration.
When an established panel is not utilized, the parties shall meet to select an arbitrator within ten (10) workdays from receipt of the list of arbitrators.
The source of arbitrators shall be the FMCS unless the parties at the local level negotiate an agreement to use a comparable source, such as the New York State mediation and conciliation service. If the parties cannot mutually agree upon one (1) of the listed arbitrators, Management and the Union shall each strike one (1) arbitrator's name from the list, and then repeat this procedure until one (1) person remains who shall be the duly selected arbitrator. The party making the first strike shall be determined by the flip of a coin.
Section 23.04 - Arbitration Fees and Expenses. The losing party shall pay the arbitrator's fees and expenses. The arbitrator should indicate which party is the losing party. If, in the arbitrator's judgment, neither party is the clear losing party, costs shall be shared equally.
The party cancelling arbitration after the arbitrator is engaged shall pay the attendant's expenses, if any.
Section 23.05 - Arrangements. Upon selection of an arbitrator in a particular case, the respective representatives shall communicate with the arbitrator and each other in order to

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finalize arrangements. No ex parte communications shall be permitted on the merits of the case, but both parties may discuss procedural arrangements as necessary. Any disputes on procedures shall be settled by the arbitrator consistent with this Agreement.
Section 23.06 - Direct Designation. Upon request of the grieving party (i.e., Management or the Union), the Federal Mediation Conciliation Service (FMCS) or other service shall be empowered to make a direct designation of an arbitrator to hear the case in the event:
(1) Either party refuses to participate in the selection of an arbitrator; or
(2) Upon inaction or undue delay on the part of either party.
Section 23.07 - Location. Normally, the arbitration hearings shall be held at Management's premises at the grievant's duty station; however, an alternate, mutually acceptable site may be used. National level hearings shall normally be held in Washington, D.C. Management shall pay reasonable travel and per diem for one (1) Union representative for National level hearings.
Section 23.08 - Stipulations. If the parties fail to agree on a joint submission of the issue for arbitration, each shall submit a separate statement and the arbitrator shall determine the issue to be heard.
The parties shall endeavor, whenever possible, to stipulate the facts involved in a case prior to the opening of the arbitration hearing.
Section 23.09 - Witnesses.
(1) The parties shall exchange witness lists, if known, no less than five (5) days in advance of the hearing.
(2) If witnesses are reasonably available, the witnesses must be produced at the hearing.
(3) All employees who are called as witnesses shall receive official time, to the extent necessary or reasonable, to participate in the arbitration hearing. Reasonable travel and per diem shall be paid for one (1) witness if the incident giving rise to the grievance occurs at a location other than the location of the hearing.
(4) Either party may request the sequestration of any witness or witnesses during the testimony of other witnesses.

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(5) Either party may purchase a stenographic record. If such transcript is agreed by the parties to be, or in appropriate cases determined by the arbitrator to be, the official record of the proceeding, it must be made available to the arbitrator. The total cost of such a record shall be shared equally by those parties that order copies. if only one (1) party orders and purchases a copy of the transcript, it shall be provided to the arbitrator. However, the transcript shall be made available to the other party for inspection for accuracy following the submission of post-hearing briefs.
Section 23.10 - Authority of the Arbitrator.
(1) The parties agree that the jurisdiction and authority of the arbitrator shall be confined to the issue(s) presented in the grievance.
(2) The arbitrator shall not have authority to add to, subtract from, or modify any of the terms of this Agreement, or any supplement thereto. In the case of a back-pay award based on an employee having been affected by an unjustified or unwarranted personnel action, the arbitrator may authorize reasonable attorney's fees in accordance with standards contained in the Back-Pay Act, as amended by the Civil Service Reform Act of 1978, and as interpreted by the Merit Systems Protection Board (MSPB).
(3) Except for decisions to discipline, an arbitrator shall lack authority to determine the appropriateness of a Management decision to exercise any of the rights set forth in Article 3, Section 3.07, which do not amount to a violation of applicable law, regulation, or this Agreement.
(4) An arbitrator shall lack authority to determine the legality or regulatory correctness of any Management decision not impacting personnel policies, practices or matters affecting general conditions of employment.
(5) The arbitrator shall resolve any arbitrability disputes consistent with this Agreement.
Section 23.11 - Exceptions. Where exception is taken to an arbi­tration award and the Federal Labor Relations Authority (FLRA) sets aside all or a portion of the award, the arbitrator shall have the jurisdiction to provide alternate relief, consistent with the FLRA decision. The arbitrator shall specifically retain jurisdiction where exceptions are taken and shall retain such jurisdiction until the exception is disposed.

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Section 23.12 - Refusal to Participate. Should either party refuse to participate in an arbitration, the arbitrator shall continue to hear the case and base his/her decision solely on the record.
Section 23.13 - Merit. Where a grievance is taken to arbitration and is found to be patently without merit and/or frivolous, and without any reasonable basis, the arbitrator, notwithstanding any other provision of this Agreement, shall charge all arbitrator's fees and representation fees to the losing party. In all other cases, fees shall be assessed in accordance with Section 23.04.
Section 23.14 - National HUD-AFGE Arbitration Panel. The previously established Washington, D.C. area National Arbitration Panel shall continue to hear grievances between the National Council of HUD Locals and the Department at the Headquarters level.
Section 23.15 - Use of the Panel. When notice is given to arbitrate a grievance with potential unit-wide impact (for example, the interpretation of this Agreement), the parties at the National level shall confer as to whether the grievance is properly a National grievance. If it is agreed that it is a National level grievance, an arbitrator shall be selected within ten (10) workdays. Failing mutual agreement on a particular arbitrator, the arbitrator shall be selected by rotation. If the parties agree that it is a National grievance, the hearing normally shall be held in Washington, D.C., and the arbitrator shall be selected from the standing panel. In extenuating circumstances, the parties may agree to hold a National grievance hearing at the site of the incident which caused the grievance (for example, where there are several witnesses). Should a panelist be unavailable to fulfill his or her obligations under this Agreement, his or her name shall go to the bottom of the list. New arbitrators shall be added to the bottom of the list. The term of appointment to the panel shall coincide with the term of the Agreement, including extensions.
Section 23.16 - Removal of Panelists. Any arbitrator may be removed from the list unilaterally by either party during the life of this Agreement, without cause. The party removing the arbitrator shall give notice to the other party and to the arbitrator. Upon receipt of written notice, the parties shall meet to select a replacement arbitrator. No further case shall be assigned to that arbitrator after a replacement has been effected, but the former arbitrator on the panel shall hear and decide any cases already assigned to him/her.
Section 23.17 - Conditions. To be considered for selection to the panels, arbitrators must agree to hear a case within forty-­five (45) days of referral and render their decision within

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thirty (30) days of the closing of the record. Where post-hearing briefs are submitted, the record shall not be closed until briefs are timely submitted.
Section 23.18 - Forty-Five (45)-Day Requirement. Where, due to circumstances beyond the control of the arbitrator and the parties, a panel arbitrator cannot hear a case within forty-five (45) days, the parties shall select another arbitrator.
Section 23.19 - Expedited Arbitration. The parties agree that certain arbitrations are properly handled more expeditiously. To that end, the parties agree to Expedited Arbitration. Expedited Arbitration procedures shall be used for the following issues unless the grievance/appeal alleges discrimination based on race, color, sex, sexual preference/orientation, national origin, religion, age, marital status, political affiliation, or physical or mental disability:
(1) Oral reprimands, of which a record is maintained and a copy furnished to the employee;
(2) Dues withholding;
(3) Bulletin board postings;
(4) Union distributed material; and
(5) Flexitime related disputes.
The parties may agree, on a case-by-case basis, to use expedited arbitration for other kinds of issues. When arbitration is invoked in accordance with Section 23.02, a request may be made in writing by the party invoking arbitration that the expedited procedure be used.
Section 23.20 - Expedited Arbitration Procedures. Procedures contained in this Section supplement the arbitration procedures covered elsewhere in this Agreement, and, when in conflict with other procedures, supersede them:
(1) There shall be no post-hearing briefs. All documents to be considered by this arbitrator shall be filed at the hearing.
(2) There shall be no verbatim transcript except upon mutual agreement.
(3) The hearing must be held within fifteen (15) days of the notification to the arbitrator.
(4) If the parties mutually conclude at the hearing that the issues are of such complexity or significance as to warrant further consideration, the hearing procedures may be

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appropriately modified, or the hearing may be cancelled and the matter referred to regular arbitration.
(5) The arbitrator may issue a bench decision at the hearing, but, in any event, the arbitrator shall render a decision within forty-eight (48) hours after the conclusion of the hearing. The decision shall be made on the record developed by the parties before and at the hearing and shall include a brief written explanation of the basis for the conclusion.
Section 23.21 - Extension of Time Limits. Time limits in this Article may be modified by mutual consent of the parties.

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