Article 28 Arbitration

fails to respond to a grievance, it shall be deemed denied, and the grievant may process the grievance to the next step of the process.

Should this process fail to resolve the grievance to the satisfaction of the parties, the grievance may proceed to arbitration as set forth in this Agreement.

In the event that a grievant is challenging a suspension, demotion or termination of a bargaining unit member or members, the grievance shall be initiated directly at step three of the grievance process.

Initial probationary employees shall have the right to grieve with respect to rights granted to them in this Agreement but shall in no event have the right to grieve or arbitrate any matter relating to discipline or dismissal. Position probationary employees shall have the right to grieve with respect to rights granted to them in this Agreement but shall in no event have the right to grieve or arbitrate any matter relating to demotion during their position probation period.

The Union is not required to process a grievance or to proceed to arbitration on behalf of any individual who is not a union member. In the event that an employee declines the right to union representation during the processing of a grievance, the Union representative will not intervene in the grievance process, but shall be present as an observer to ensure that the grievance is not resolved in a manner contrary to the terms of this Agreement.

A grievance may be settled on any basis that is agreeable to the parties involved and a settlement shall not be deemed to set a precedent, nor shall the fact or terms of a settlement be admissible in any future arbitration case, without the written consent of the City.

The Union representative shall be allowed to attend all meetings specified in this article while on duty with pay.

ARTICLE 28 ARBITRATION

Any unresolved grievance that has been processed through the grievance procedure, as set forth in this Agreement, may be submitted to binding arbitration in accordance with the provisions of this Article.

Within 20 business days of the City Manager’s Step 2 decision, the grievant may file a demand for arbitration by concurrently a.) giving written notice of the intent to arbitrate to the City’s Director of Human Resources and b.) filing a request with the Federal Mediation and Conciliation Service (“FMCS”) for a list of seven (7) arbitrators. The

grievant bears the responsibility of paying any applicable filing fees. In the event that the grievant is challenging a termination, the parties shall comply with the FMCS rules for an expedited arbitration. The grievant bears the responsibility of informing the FMCS of this fact.

Within 20 business days of receipt of the panel from the FMCS, unless extended by mutual consent, the parties or their representatives shall, in a meeting or by telephone, alternately strike one name at a time from the list until only one name remains, and that arbitrator shall be selected to hear the case. For the first grievance to proceed to arbitration under this Agreement, if any, the grievant shall strike first. For each subsequent arbitration, the striking parties shall alternate – the City shall strike first for the second arbitration demand, the grievant for the third, and so forth. The party seeking arbitration shall inform the FMCS of the identity of the arbitrator. Each side has the right to reject one full list within 20 business days after receipt of the list.

The arbitration shall thereafter proceed in accordance with the reasonable instructions and orders of the arbitrator, subject to the following limitations:

A. No arbitrator shall have before him/her at any time more than one case involving this Agreement without voluntary consent of both parties. B. The arbitrator shall use his/her best reasonable efforts to accommodate the parties' requests concerning hearing dates, times and places, due to operational considerations. C. The arbitrator shall not admit evidence concerning any grievance settlement(s) or settlement efforts without the consent of the City. D. The arbitrator shall not add to, subtract from, or modify any term or provision of this

Agreement in any way. E. The arbitrator, by accepting appointment, agrees to render a decision within thirty (30) calendar days after the close of the hearing, subject to his/her authority to grant more time for the filing of briefs. F. The decision of the arbitrator shall be final and binding upon the parties.

An arbitrator shall not be bound by a prior arbitrator's decision or award, although he/she may give it such weight, as he/she deems proper.

The arbitration shall be conducted as expeditiously as possible and held within the City, unless the parties agree jointly to a different location. Each party has the right to representation through counsel, to subpoena witnesses and documents, to examine and cross-examine witnesses, and to present oral arguments to the arbitrator.

The arbitrator in their decision shall clearly state the identity of the prevailing party, or if none, that his/hers is a split decision. In the event one party prevails, the loser shall be liable for all of the arbitrator’s fees and costs. In the event of a split decision, the parties shall bear the cost equally. Each party shall be responsible for its own attorneys’ fees, regardless of the decision.