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
Legal Review
Case Assignment
Case Intake
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
Letter 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;