Article 12
Arbitration

Section 12.01

Any grievance processed under the terms of Article 11, Grievances, except a grievance involving the interpretation of DOE Headquarters policy, which is otherwise appealable to arbitration as defined by Article 11, may be appealed to binding arbitration by either the Employer or NTEU within 15 workdays of the grievant's receipt of a final grievance decision as prescribed by Article 11.

Section 12.02

Where a question of arbitrability is raised by the Employer or NTEU, arbitration of the merits of the grievance may be suspended by mutual agreement until the arbitrability question is resolved through use of the provisions of this article. If the parties decide to separately arbitrate the arbitrability issue, they will jointly invoke arbitration in accordance with the time limits and procedures of this article.

Section 12.03

Arbitration is invoked by either the Employer or NTEU notifying the other party of its desire to appeal a grievance to arbitration by a notice hand-delivered or sent by certified mail, registered mail, or sent by fax. The arbitrator will be whoever follows the individual on the following list who handled the last arbitration hearing: Ira Jaffe, Jerry Ross, Andre McKissick, and Suzanne Butler.

Section 12.04

Management may stay a disciplinary or adverse action on a case-by-case basis. Management will consider such factors as hardship of the action on the employee/grievant, the severity of the alleged discipline, among other things.

Section 12.05

The arbitrator's authority is limited to the issue(s) of the grievance as stated in the original grievance submission and modified later, if at all, by mutual consent of the parties. An issue of grievability or arbitrability referred singly to arbitration will be decided singly by the arbitrator without regard to the merits of the grievance. The arbitrator has no authority to alter, in any way, the terms of this agreement. Further, the arbitrator has no authority to interpret the Employer's regulations. Where such regulations, in the judgement of the arbitrator, bear on a grievance, the arbitrator will notify NTEU that he is seeking such an interpretation. The arbitration process will be suspended until that interpretation is received. The arbitrator is then bound, in his deliberations, by any such interpretation. In any cases involving a dispute over the interpretation of the regulations of any other authority the arbitrator will request interpretation of those regulations from that authority. In such instances the arbitrator will notify the parties that he/she is seeking such an interpretation and the arbitration process will be suspended until that interpretation is received (unless the parties requested and received such an interpretation earlier which has been provided to the arbitrator). The arbitrator is then guided, in his deliberations, by such interpretation.

Section 12.06

Within seven (7) calendar days of invocation, the party invoking arbitration will notify the selected arbitrator of his/her selection in writing and request the arbitrator to designate the hearing date for the earliest possible time. The Employer will make all physical arrangements for the hearing, including obtaining a suitable hearing room on or near as possible to the Employer's premises.

Section 12.07

If both parties agree, the parties will hold a pre-hearing conference to attempt settlement and to stipulate to as many exhibits, witnesses, facts and issues as possible, as soon as possible, but in no instance later than twenty (20) calendar days after the notice to the arbitrator. At least ten (10) calendar days prior to the hearing date the parties will exchange lists of proposed witnesses. If the parties agree on the witness list they will submit the list to the arbitrator at least seven (7) calendar days prior to the hearing date. If the parties cannot agree on the witness list, the dispute will be referred to the arbitrator at least seven (7) calendar days prior to the hearing date. Expected testimony of the proposed witnesses will accompany the witness list. DOE Headquarters bargaining unit employees participating in the hearing as a grievant or as a witness will be excused from duty, if otherwise in a duty status, to participate in the hearing. One DOE Headquarters bargaining unit employee participating in a hearing as a representative of the grievant may be excused from duty for such participation in accordance with the provisions of Article 7.

Section 12.08

The conduct of the arbitration hearing will be determined solely by the arbitrator, who will have full authority to determine the appropriateness of requested witnesses and to limit testimony of witnesses or the introduction of documents based on issues of relevance, redundancy, or competence. Transcripts will be made of any arbitration hearing upon request of either party. The requesting party will pay the costs. A transcript is mandatory in removal cases, and, in addition, an arbitrator can order that a hearing be transcribed.

Section 12.09

The arbitrator may rely on notes taken at the hearing, any exhibits entered into the record, a transcript if taken, and post-hearing briefs in order to reach a final and binding decision. The arbitrator is authorized to issue a bench decision at the end of the hearing. If he or she does so, it must be followed within fourteen (14) calendar days of the close of record by a written decision. If no bench decision is issued, a written decision must be provided within fourteen (14) days of the close of record. All written decisions should include a finding of facts, and an opinion containing the reasoning and basis for the decision.

Section 12.10

Any fees and expenses of the arbitrator and the hearing, including costs of a mandatory transcript, will be shared equally by the parties.

Section 12.11

Either party may file an exception to an arbitrator's award with the Federal Labor Relations Authority or the appropriate Court of Appeals within thirty (30) calendar days of the award's issuance. The arbitrator's decision will be implemented as soon as practicable but no later than thirty (30) calendar days after receipt unless either party is filing exceptions. If either party does not understand the arbitrator's decision, that party will request clarification of the decision from the arbitrator.