American Federation of Government Employees, Local 1815 and U.S. Army Aviation Center (Authority decision, April 21, 1987)

Final FLRA decision. The Authority finds no basis to set aside an arbitrator’s award reducing an employee’s suspension from ten days to one day. Under 5 U.S.C. § 7123(a)(1), orders involving arbitral awards are generally excluded from judicial review unless they involve an unfair labor practice under 5 U.S.C. § 7116. This decision does not state that it involves one.

Plain-English summary

The Army Aviation Center suspended an employee for ten days following allegations of sexual harassment. An arbitrator found some improper conduct but reduced the suspension to one day and awarded backpay for nine days. AFGE Local 1815 sought to remove the remaining suspension, relying on evidence it said was new. The Authority held that this did not establish a legal basis for finding the award deficient and left the arbitrator’s reduction in place.

Decision snapshot

• Authority: Review of arbitration awards under 5 U.S.C. § 7122(a).
• Outcome: Union exception rejected; one day suspension and nine days of backpay remain.
• Key point: Evidence not presented to the arbitrator did not provide a basis to set aside the award.

Full text (FLRA public release)

[ v26 p610 ]

26:0610(75)AR

The decision of the Authority follows:

26 FLRA No. 75

AFGE LOCAL 1815
Union

and

U.S. ARMY AVIATION CENTER
Activity

Case No. 0-AR-1302

DECISION

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 hearing).

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