ARTICLE 33

ARBITRATION

 

A.             General Provisions

 

1.         Only the UC-AFT may make an appeal to arbitration and only after the timely exhaustion of the Grievance Procedure of this MOU.  The written appeal to arbitration must be received by the designee of the Office of Labor Relations of the Office of the President within forty‑five (45) calendar days of the mailing of the final University decision to the UC‑AFT (Article 32 - Grievance Procedure).  The written appeal must be signed by the UC‑AFT President and/or the UC‑AFT Executive Director and must include:

 

a.    name, mailing address and campus location of the grievant(s);

 

b.    name and address of the UC‑AFT representative who is responsible for the appeal to arbitration and to whom all correspondence is to be sent;

 

c.     a copy of the completed grievance form;

 

d.    a statement setting forth the unresolved issue(s), the Articles of the MOU alleged to have been violated, and the remedy requested; and

 

e.    a completed proof of service form.

 

2.         Appeals to arbitration which are not processed within the above time limit and/or which do not contain the appropriate UC‑AFT signature are ineligible for arbitration.  If a grievance is not appealed to arbitration, the University's written Step 2 decision, or Step 3 decision, if appealed to Step 3, shall be final.

 

3.         Absent resolution of the grievance during this time, the designee of the Office of Labor Relations of the Office of the President shall notify the UC-AFT of the Universityıs agreement to proceed to arbitration within thirty (30) calendar days of the date of mailing of the appeal to arbitration.  The Universityıs response will include a proof of service and the name and mailing address of the Universityıs representative who is responsible for the appeal to arbitration and to whom all correspondence should be addressed.

 

B.             Selection of Arbitrator

 

1.    Within fifteen (15) calendar days of the mailing of the University's response to the UC‑AFT's appeal to arbitration, the UC‑AFT will contact the University's representative responsible for the appeal to arbitration to initiate the selection of an arbitrator.  Failure to contact the University's representative within the established time frame will be considered as a withdrawal of the arbitration appeal.

 

2.    If the parties cannot mutually agree to the selection of an arbitrator from the panel, the parties shall alternately strike one name each from the list of panel members.  Unless the parties agree otherwise, the party selecting first shall be determined by the flip of a coin.  The remaining name shall be designated as the arbitrator.

 

3.    The selection of the arbitrator shall be accomplished no later than thirty (30) calendar days from the issuance of the University's response to the appeal to arbitration

.

4.    Upon selection of an arbitrator, the University, following consultation with the UC‑AFT regarding hearing dates, will notify the arbitrator and request hearing date(s) no earlier than twenty‑one (21) calendar days from the date of mailing of the letter to the arbitrator.  A copy of this letter shall be sent simultaneously to the UC‑AFT representative responsible for the appeal to arbitration. 

 

C.             Expedited Arbitration 

 

   If the parties agree to use an expedited form of arbitration, the following will occur:

 

1.             the arbitrator will be selected in accordance with Section B. above;

 

2.             the case shall be heard on the arbitrator's earliest available date, unless otherwise agreed by the parties;

 

3.             there shall be no transcript of the proceedings;

 

4.             post‑hearing briefs will be waived; and

 

5.             the arbitrator will issue a written decision within seven (7) calendar days following the close of the hearing record unless the parties agree, prior to the commencement of the arbitration, that the arbitrator rule on the issues at the close of the hearing in lieu of a written decision.

 

D.        Arbitration Procedure 

 

1.    In order for grievances to be considered timely and arbitrable under this Article, the scheduling of the arbitration hearing date must be accomplished no later than ninety (90) calendar days from the date the grievance was originally appealed to arbitration.  Should the parties be unable to agree to a hearing date, the authority to schedule the hearing rests with the arbitrator. 

 

2.    Prior to the arbitration hearing, the UC‑AFT and the University shall attempt to stipulate as to the issue(s) to be arbitrated and to as many facts as possible.  At least seven (7) calendar days prior to the arbitration hearing the parties shall exchange lists of known witnesses.

 

3.    During the arbitration proceeding the parties shall have an opportunity to examine and cross‑examine witnesses under oath and to submit relevant evidence.  Issues and allegations shall not be introduced at the arbitration hearing which were not introduced during Step 2 of the grievance procedure of this MOU.  Settlement offers made during the grievance procedure shall not be introduced as evidence in arbitration.

 

4.    The arbitrator shall have the authority to subpoena witnesses or documents, subject to the limitations set forth in Article 10 - Personnel Files, but only upon the request of either party. 

 

5.    Either or both parties may, at its discretion, file briefs with the arbitrator.  The order and time limits of briefing shall be either as agreed to by the parties or as specified by the arbitrator.  Briefing time limits may be extended if agreed upon by the parties.  Prior to the commencement of the Arbitration, the parties may agree to waive the filing of briefs, and in lieu of a written decision, the parties may also agree that the arbitrator will rule at the close of the hearing.

 

6.    The arbitration hearing shall be closed unless the parties otherwise agree in writing.

 

7.    Unless the parties agree otherwise, where arbitrability is an issue, the arbitrator shall conduct a hearing and issue a decision first on arbitrability.  The parties may agree to conduct the hearing on arbitrability pursuant to Section C. of this Article.

 

8.    An appeal to arbitration shall not inhibit efforts by the University and UC‑AFT to resolve the grievance.  The UC-AFT shall have authority to withdraw a grievance or enter into an agreement with the University to settle a grievance appealed to arbitration.  An agreement to settle or withdraw a grievance appealed to arbitration reached between the University and the UC-AFT shall be binding on unit employees. 

 

9.    In all cases appealed to arbitration, except for actions taken pursuant to Article 30 - Discipline and Dismissal, the UC‑AFT shall have the burden of proceeding.

 

10. The arbitrator shall consider the evidence presented and render a written decision within  thirty (30) calendar days of the close of the record of the hearing. The arbitrator's decision will set forth the findings of fact, reasoning, and conclusions on the issues submitted by the parties. 

 

11. The arbitrator's fees, AAA fees and the costs of transcripts requested by the arbitrator or both parties shall be shared equally by both parties.  Costs for transcripts requested by only one party, shall be borne by the requesting party.

 

12. A party that cancels or postpones an arbitration will be liable for any cancellation/postponement fees charged by arbitrator, court reporter or AAA.

 

E.             Authority of the Arbitrator 

 

1.             The arbitrator's authority shall be limited to determining whether the University has violated arbitrable provisions of this MOU.  The arbitrator shall not have jurisdiction or authority to add to, amend, modify, nullify, or ignore in any way the provisions of this MOU.

 

2.             Except to the extent provided in this MOU, the arbitrator shall not have the jurisdiction or authority to review the Universityıs evaluation of an NSFıs academic qualifications or performance, or whether courses shall be offered.

 

3.             If the grievance is sustained in whole or in part, the remedy shall not exceed restoring to the NSF the pay, benefits, or rights lost as a result of a violation of the MOU, less any compensation from any source recognized by law as appropriate to offset such a remedy.  The decision and award of the arbitrator shall be final and binding upon the parties to this MOU and the NSF. The University will not be liable for back wages or other monetary reimbursement for:

 

a.             any period of time during which an extension of time limits has been granted at the request of the UC‑AFT;

 

b.             any period of time between the first date the arbitrator is available for an arbitration hearing and the date of the hearing, when the first date is rejected by the UC‑AFT; and

 

c.              any period of time greater than thirty (30) calendar days prior to the date the grievance was filed pursuant to Article 32 - Grievance Procedure.

 

F.              Extension of Time Limits 

 

Time limits set forth in this Article may be extended by agreement of the parties in writing in advance of the expiration of the time limit.

 

G.             Release Time

 

         Upon advance request, the grievant and the UC‑AFT representative, if the representative is a NSF, s/he shall be granted leave with pay to attend arbitration hearings and related settlement meetings convened by the University.  Unit members who are called by the parties to testify shall be granted leave with pay upon advance request for the period of time required to testify.

 

H.             Panel of Arbitrators

 

1.         The parties agree that there will be a standing panel of thirteen (13) arbitrators to hear arbitration cases scheduled for hearing pursuant to the provision of this Article. 

 

 

 

 

 

2.         The procedure for modifying the panel shall be as follows:

 

a.             Each party shall have the right to eliminate up to two (2) arbitrators from the panel once each calendar year.  The party exercising this right shall notify the other party in writing of the name(s) of the arbitrator(s) to be stricken from the panel.

 

b.             In replacing an arbitrator who has been eliminated, declined to participate or who has resigned, or in adding an arbitrator(s) to complete the panel, the parties will exchange lists of nominations within sixty (60) calendar days.  If agreement cannot be reached on all thirteen (13) arbitrators, the remaining number needed to complete the panel will be selected alternately by the parties.  The party selecting first shall be determined by the flip of a coin.  Any arbitrator eliminated in a., above, may not be placed on the panel again.

 

c.              The parties shall jointly send letters to arbitrators chosen for placement on the standing panel and shall request that they agree to participate and comply with the provisions of the MOU.