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26:0610(75)AR - AFGE Local 1815, and Army Aviation Center -- 1987 FLRAdec AR

[ v26 p610 ]
The decision of the Authority follows:

 26 FLRA No. 75
                                            Case No. 0-AR-1302
                         I.  Statement of the Case
    This matter is before the Authority on an exception to the award of
 Arbitrator James J. Odom, Jr. filed by the Union under section 7122(a)
 of the Federal Service Labor-Management Relations Statute (the Statute)
 and part 2425 of the Authority's Rules and Regulations.
                  II.  Background and Arbitrator's Award
    The grievant was given a 10-day suspension for sexual harassment of a
 female employee.  He filed a grievance denying that his behavior was of
 a sexual nature or improper in any way, and also contending that the
 charge of sexual harassment was procedurally deficient because it was
 not first submitted to an equal employment opportunity (EEO) counselor.
 The grievance was submitted to arbitration.
    The Arbitrator rejected the grievant's contention that the
 disciplinary action against him was procedurally defective.  Relying on
 a decision of the Merit Systems Protection Board, he found that there
 was no requirement for the complaint to be investigated by the EEO
 office first.  On the substantive issue, the Arbitrator found that the
 grievant was guilty of improper actions on certain occasions.  However,
 he also concluded that the grievant's actions, although improper, did
 not warrant a 10-day suspension.  As his award, he reduced the
 suspension to 1 day with backpay for 9 days.
                              III.  Decision
    The Union contends that the award is deficient because the Arbitrator
 should have completely set aside the suspension.  The Union asserts that
 the award should be reviewed because the Union now has new evidence
 which would lead to a different result.
    We conclude that the Union has failed to establish that the
 Arbitrator's award is deficient on any of the grounds set forth in
 section 7122(a) of the Statute;  that is, that the award is contrary to
 any law, rule or regulation, or that the award is deficient on other
 grounds similar to those applied by Federal courts in private sector
 labor-management relations.  See, for example, Veterans Administration
 Regional Office and Service Employees International Union, Local 556,
 AFL-CIO, 5 FLRA 463, 470-71 (1981) (arbitration awards are not subject
 to review on the basis either of evidence in existence at the time of
 the arbitration hearing but not presented to the arbitrator or of
 evidence that has come into existence only since the arbitration
    Issued, Washington, D.C., April 21, 1987.
                                       /s/ Jerry L. Calhoun
                                       Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier, III
                                       Henry B. Frazier, III, Member
                                       /s/ Jean McKee
                                       Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY