To Arbitrate or Not to Arbitrate

WINTER EXECUTIVE BOARD 2014

Arbitration

Enforcement tool when grievance is not resolved internally; Only the Union may invoke arbitration, not the individual Grievant; Advancement of a grievance to arbitration is decided by the Grievance Committee; Importance of a formal review process including documenting decisions and supporting rationale;

Grievance Committee and the Merit Review Process

What is Needed?

◦ All grievance documentation; ◦ Interview Grievant; ◦ Review collective bargaining agreement and applicable policies; ◦ Review Agency rationale; ◦ Any other relevant documentation and/or evidence;

Things to Consider

Know the facts of the case and all of the evidence presented by both sides; ◦ Has a violation of the worker’s rights occurred; ◦ Is there sufficient proof that the violation occurred; What is the likelihood of winning; Potential impact on the Local; Does the grievance impact other employees; Has this type of issue gone to arbitration before- if so, what was the result;

Things to Consider (cont.)

What is the effect of winning the case; What is the effect of losing the case; Do the benefits outweigh the costs; Is the grievance arbitrable under the contract; Are there any existing MOUs that prohibit arbitration on this issue; Key Notes: ◦ Not all grievances advance to arbitration; ◦ A decision to deny arbitration must not be based on: ◦ Discriminatory reason; ◦ Arbitrary or capricious reason;

Options and Next Steps

Option 1: Sufficient Merit Found

◦ Timely Invoke Arbitration- notify the Agency of the intent to invoke within the timelines delineated in the agreement; ◦ Timely Request Panel of arbitrators from FMCS; ◦ Prepare Case Intake Sheet and documentation for immediate submission to OGC;

Sufficient Merit Found: Invoke

INVOKING BINDING ARBITRATION

◦ NAGE and (Grievant) are in receipt of Management’s response to (his/her) grievance regarding (discipline/issue). ◦ In accordance with Article (XX) of the Negotiated Agreement between the (Agency) and NAGE, Local (Rx-xx) (hereinafter “Agreement”), the Union is invoking binding arbitration on behalf of (Grievant).

◦ Kindly contact the undersigned to schedule a mutually agreeable date, time, and place to jointly request a list of (7) impartial arbitrators from the Federal Mediation and Conciliation Service (FMCS).

◦ Failure to respond in accordance with Article (XX) will result in the Union unilaterally requesting a list of arbitrators.

Sufficient Merit Found: Request Panel

Requests for arbitration panels are submitted to the Federal Mediation Conciliation Service (FMCS); http://www.fmcs.gov

Two Options: ◦ Request online, receive panel electronically ($30) ◦ Submit form via facsimile or mail, receive panel via mail ($50) Immediately upon receipt forward panel to counsel for arbitrator selection process (“ranking and striking”); Timeliness matters for both requesting and striking the panel;

FMCS Panel Request- Online

FMCS Panel Request- Form R-43

Sufficient Merit Found: Submit Case for Intake and Processing

Prepare Case Documentation for Submission: ◦ Case Intake Sheet (Handout); ◦ Grievance documentation for all grievance steps; ◦ Relevant additional information; ◦ Witness statements; ◦ Policies; ◦ Other evidence; ◦ Note any contractual deadlines; Submit case documentation to OGC Division Lead for Intake and Processing; Please be sure to submit cases immediately following invocation to ensure all timelines are maintained; Excessive delay in case submission could result in missed timelines or denial of representation;

Options and Next Steps (cont.)

Option 2: Insufficient Merit

◦ Document the Local’s decision and rationale in Local records; ◦ Notify the Grievant in writing of the decision not to proceed to arbitration; (See Sample) ◦ Notify Grievant of appeal rights to OGC in accordance with Constitution and Bylaws; ◦ Preserve Grievant’s rights; ◦ Invocation and abeyance request

ARTICLE IVA THE HANDLING OF GRIEVANCES SECTION 1.

Any person employed in a bargaining unit represented by a Local Unit of the National Association of Government Employees (hereinafter the “Grievant”) shall have the following rights and shall employ the following remedies under the provisions of these Constitution and By-Laws if s/he believes that the Grievant’s Local Grievance Committee has acted improperly in handling the member’s grievance under the Collective Bargaining Agreement.

SECTION 2.

The Grievant, upon receiving written notification from the Local Unit Grievance Committee that the Committee has determined either to (1) reject his grievance; (2) settle the grievance; or (3) decline to further process the grievance shall take the following action to protect his or her rights: A. Step One – The Grievant shall, within seventy-two (72) hours of notification of the Local Unit Grievance Committee's action complained of, notify at least one member of the Local Unit Grievance Committee, in writing, that the Grievant appeals the Committee's decision to the National President. The Local Unit shall immediately take the required action to protect the Grievant's rights under the Collective Bargaining Agreement by proceeding to the next step of the Grievance Procedure.

B. Step Two – The Grievant must notify the NAGE Office of General Counsel, in writing, within five (5) calendar days following the decision of the Local Unit Grievance Committee, that s/he appeals the Local Unit Committee's decision.

Insufficient Merit: Sample Denial Letter

Case Intake Process

Case Intake Case Assignment Legal Review

Case Intake and Assignment

Once received, the case materials are reviewed for completeness; Inquiries for additional or missing documentation will be made; Case is assigned to counsel by OGC; Tips: ◦ Maintain organized records; ◦ When in doubt, ask;

Case Intake: OGC Review

All litigation matters are reviewed for merit and a determination is made whether the matter is accepted for representation; Legal opinion matters require research and advice;

OGC Denial of Case

Contact Local and Employee L ette r of Denial and Appeal Rights Matter Held in Abeyance if applicable File Returned To Local

OGC Acceptance of Case

Client Interview Discovery and Settlement Hearing

Hearing Preparation

Arbitrator Selected from FMCS Panel; Determination of Hearing Date; Interview of Grievant and Local; Request for Information; The attorney will engage in settlement discussions; Identification of Witnesses and Exhibits; Other general hearing preparations, such as logistics, etc.

The Hearing Process

Initial Administrative Matters; ◦ Identify potential joint exhibits; ◦ ◦ Witness Order; Scheduled breaks; Opening Statements; Presentation of Cases (Moving Party First); ◦ Ex. Discipline matter: Agency case followed by Union case; ◦ ◦ Ex. Union alleges CBA violation: Union case followed by Agency case; Examination and Cross-Examination of Witnesses; Closing Statements; Post-Hearing Briefs; Arbitrator Decision (usually within 30-60 days) and Payment; Grounds for appeal of arbitrator decisions to the Federal Labor Relations Authority is limited.

Tips for Success

Be on time; Dress appropriately; Be respectful at all times to all parties; Refrain from communicating with the witnesses or Agency representatives during proceedings; Keep your cell phone on silent and tucked away; Pay attention and take notes; Do not talk during proceedings- use notes to communicate or request a break if necessary; Remain alert; Remember the Arbitrator is always watching and listening;