ARTICLE
33
ARBITRATION
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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. [1]
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:
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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.
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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.
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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 University’s
agreement to proceed to arbitration within thirty (30) calendar
days of the date of mailing of the appeal to arbitration.
The University’s response will include a proof of service
and the name and mailing address of the University’s
representative who is responsible for the appeal to arbitration
and to whom all correspondence should be addressed.
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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.
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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.
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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.
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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.
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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;
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2. |
the case shall be heard on the arbitrator's earliest available
date, unless otherwise agreed by the parties;
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3. |
there shall be no transcript of the proceedings;
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4. |
post-hearing briefs will be waived; and
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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.
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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.
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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.
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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. [2]
Settlement offers made during the grievance procedure shall
not be introduced as evidence in arbitration.
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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.
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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.
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6. |
The arbitration hearing shall be closed unless
the parties otherwise agree in writing.
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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.
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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.
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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.
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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.
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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.
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12. |
A party that cancels or postpones an arbitration will
be liable for any cancellation/postponement fees charged by
arbitrator, court reporter or AAA.
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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.
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2. |
Except to the extent provided in this MOU, the arbitrator
shall not have the jurisdiction or authority to review the
University’s evaluation of an NSF’s academic qualifications
or performance, or whether courses shall be offered.
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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:
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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.
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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.
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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.
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H. PANEL OF ARBITRATORS
1.
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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. [Note
to Programmer: Add hyperlink here to Panel of Arbitrators
APPENDIX A in this MOU.]
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2.
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The procedure for modifying the panel shall be as follows:
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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.
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