Is It Time to Modernize Your Arbitration Article?

The Author provides a draft Agency proposal for an arbitration article to bring arbitration up to date. He’s betting Agency representatives will endorse this proposal.

As Agencies head back to the bargaining table as a result of the effect of the union-friendly Obama era, perhaps it’s time to upgrade your arbitration article. I’ll bet the arbitration article language hasn’t changed for many since the time of E.O. 10988. 

I have attached a draft Agency proposal for language that may solve some of the sticky and annoying issues surrounding arbitration in the Federal service. Since Agency counsel generally does more arbitration cases these days than labor relations specialists, I dedicate this to you and will bet you’ll like the changes. As a matter of fact, if you get to work under this article at some point in the future, you will owe me a beer.
Keep in mind as you read this that the Federal Labor Relations Authority (FLRA) decides a ton of arbitration appeals and most of the problems arise from a lack of understanding by the arbitrator of how the Federal system works.
Overall, my suggestion is based on the theory that an arbitrator is a creation of the collective bargaining agreement and is bound by its provision and that the parties can agree to a procedure as long as it’s consistent with the statute which doesn’t say a whole lot about the subject.
This proposal requires the parties to pay attention to certain issues and regularize the process a bit. So what’s involved?
  1. It requires the union to authorize a representative to invoke arbitration, if other than the president invokes.
  2. It requires proof of service for an invocation.
  3. It requires invocation within 15 days of the last step decision of the grievance procedure and if ya snooze, ya lose.
  4. It details the procedure for requesting an arbitrator list from FMCS.
  5. It lays out a procedure for contacting the arbitrator and requires automatic provision of the labor agreement.
  6. It sets forth how the issue will be framed and what happens if the parties don’t agree on the issue.
  7. It requires parties to provide witness lists and a statement of the relevance of each.
  8. It sets out a process for dealing with settlements and withdrawals of the agreement and who can do what.
  9. It addresses how many representatives the union may have on the clock for the proceeding and how the Agency may contact the union rep if not an employee.
  10.  It requires an independent hearing on grievability and arbitrability and makes the loser pay.
  11.  It puts the cost of cancellation or postponement on the party responsible.
  12.  Everybody pays their own costs including transcripts.
  13.  It requires an arbitrator to:
    • Recognize that he or she is serving within the context of Federal law and applicable regulation involving Federal government employees. 
    • Consider FLRA, MSPB and the Courts in deciding both the ruling and the remedy.
    • Agree to be bound by the Code of Professional Responsibility for Arbitrators and Federal Mediation and Conciliation Service (FMCS) Arbitration Policies and Procedures.
    • Stick to the contract terms and not add anything new.
    • Not consider anything unrelated to the grievance.
    • Follow specific articulated standards of proof such as just cause, efficiency of the service and the performance case requirements.
    • Follow MSPB and Federal Circuit precedents in adverse actions.
    • Enforce a reasonable Agency request for information in the possession of the union or one of its witnesses ahead of the hearing.
    • Engage in mediation if both parties agree.
  14.  About the hearing itself, the proposed article requires:
    • A closed hearing unless the parties agree otherwise.
    • The hearing be held no more than 90 days from arbitrator selection.
    • The hearing be held at an Agency facility.
    • Stipulation of facts and evidence be agreed by the parties.
    • If there’s a record, the party requesting it pays but must give a copy for half the cost of its preparation.
    • The arbitrator to follow some common sense rules of procedure.
    • Bargaining history cannot be used unless the party intending use notifies the other.
    • A ban on ex parte communication.
    • Submission of a post-hearing brief.
  15.  Concerning the arbitrator’s award, the proposal requires:
    • Limits of jurisdiction and authority to the contract and the record.
    • Applicable law and regulation govern the arbitrator.
    • Any assessment of expenses must be in accord with the law or the contract.
    • An arbitrator awarding back pay must demonstrate the awards consistency with the Back Pay Act.
    • Fair limits on attorney fee requests by the hour and overall.
    • The award issue within 30 days of the closing of the hearing or after the filing of briefs whichever is later.
  16.  The award is final and binding unless appealed in accordance with Federal statute.
  17.  The proposal sets forth an expedited procedure, which is:
    • Mutually agreed on.
    • The hearing takes place within 30 days of arbitrator selection.
    • No hearing transcript will be allowed
    • No post hearing briefs will be permitted.
    • The Arbitrator may render his or her award orally at the hearing.
    • If so, the grieving party shall be required to tape record and transcribe the award and provide a copy of the tape and transcription to the other party.
    • If a written award, it must be made within10 days of the hearing.
    • Generally a 1 day hearing.
    • The Arbitrator may limit the presentation of evidence or witnesses.
    • The Arbitrator’s fee shall be borne equally by both parties.
Since the passage of the Federal statute more than thirty years ago, Agencies have asked what’s in contract negotiations for the Agency. Hopefully this article will get some of the lingering and troublesome issues resolved if included in a contract. The unions might not like it as it seeks to regularizes an often too freewheeling process. But, of course, if they don’t like some provision they can offer a concession to be rid of it. Don’tcha think?
As always no one is responsible for any of the opinions expressed herein but me. I’d like to hear any ideas you have to improve the arbitration process. If you have a question on why some of this is a good idea, email me below. 
Stay Tuned. I’ll be suggesting a grievance procedure in a future article.


About the Author

Bob Gilson is a consultant with a specialty in working with and training Federal agencies to resolve employee problems at all levels. A retired agency labor and employee relations director, Bob has authored or co-authored a number of books dealing with Federal issues and also conducts training seminars.