24:0139(19)AR - AFGE Local 12 and DOL -- 1986 FLRAdec AR

 24 FLRA No. 19
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 12
 Union
 
 and
 
 U.S. DEPARTMENT OF LABOR
 Agency
 
                                            Case No. 0-AR-1070
 
                                 DECISION
 
                         I.  STATEMENT OF THE CASE
 
    This matter is before the Authority on an exception to the award of
 Arbitrator Robert Bennett Lubic filed by the Agency under section
 7122(a) of the Federal Service Labor-Management Relations Statute and
 part 2425 of the Authority's Rules and Regulations.
 
                  II.  BACKGROUND AND ARBITRATOR'S AWARD
 
    The grievant was downgraded as the result of a reduction in force
 (RIF) from the position of secretary/typist, GS-6, in the Women's Bureau
 to a position of clerk/typist, GS-4, in the Benefits Review Board (BRB).
  She filed a grievance alleging that she was improperly placed in the
 BRB position and also that she was unable to work at a video display
 terminal (VDT) because of eye and medical problems.  Subsequently, the
 grievant experienced further medical problems and was eventually
 classified as a handicapped employee under the Rehabilitation Act of
 1973, 29 U.S.C. Section 701 et seq.  During this time she was given
 other assignments including a reassignment to a GS-4 mail and file clerk
 position in another office.  However, none of the assignments proved
 satisfactory and the grievant filed additional grievances which were
 eventually submitted to arbitration.
 
    The Arbitrator stated that three issues were before him:  (1) whether
 the Agency discriminated against the grievant on the basis of race;  (2)
 whether the grievant suffered harmful error when the Agency failed to
 place her on a repromotion list;  and (3) whether the Agency
 accommodated the grievant's handicapped condition.  With respect to the
 first two issues, he found that the Agency did not discriminate against
 the grievant because of race and that the Agency did not harm the
 grievant when it failed to place her on a repromotion list at the time
 of the RIF.  No exceptions were filed with regard to these findings.  As
 to the third issue, the Arbitrator agreed with the Union that the Agency
 failed to accommodate the grievant's handicapped condition as required
 under the Rehabilitation Act of 1973 and the regulations contained in 29
 C.F.R. Section 1613.703, which require Federal agencies to give full
 consideration to the hiring, placement and advancement of qualified
 mentally and physically handicapped persons.  Furhter, the Arbitrator
 found that (1) the Agency failed to make reasonable accommodation to the
 grievant's handicapped condition as required by 29 C.F.R. Section
 1613.704 /1/ and (2) the Agency did not show that making a reasonable
 accommodation for the grievant's condition would create undue hardship.
 Particularly, the Arbitrator found that the Agency failed to accommodate
 the grievant's eyesight problem and resultant inability to use a VDT for
 more than a short time.  He concluded that the only possible remedy for
 the grievant's problem would be the immediate restructuring of a
 suitable GS-4 position in the BRB and held that such a restructuring
 would not cause undue hardship in an organization the size of the BRB,
 especially at the GS-4 level.  As his award he ordered the Agency to
 offer the grievant within 30 days a restructured GS-4 clerical position
 at the BRB "without use of any VDT equipment and with the PD therefore
 containing reasonable elements and standards."
 
                          III.  AGENCY EXCEPTION
 
    The Agency alleges that the Arbitrator's award is contrary to law
 because it requires the Agency to reassign the grievant to a
 specifically restructured position and violates management's right to
 assign work and to assign employees under section 7106(a)(2) of the
 Statute.  The Agency contends that the award effectively requires
 management to establish a new clerical position which does not require
 use of a VDT and to place the grievant in the position.  The Agency
 contends that the award is contrary to the Rehabilitation Act of 1973
 and implementing regulations which only require that a handicapped
 employee be accommodated to the extent such accommodation does not
 create an undue hardship for the Agency and does not require
 reassignment to another position.
 
                       IV.  ANALYSIS AND CONCLUSION
 
    We conclude that the Agency's exception should be denied for the
 following reasons.
 
    The Authority has consistently held that proposals and agreement
 provisions which interfere with management's right to assign employees
 and to assign work under section 7106(a)(2)(A) and (B) are outside the
 duty to bargain and not enforceable by arbitrators.  National Treasury
 Employees Union, Chapter 26 and Internal Revenue Service, Atlanta
 District, 22 FLRA No. 30 (1986) (Proposal 5);  Southwestern Power
 Administration and International Brotherhood of Electrical Workers,
 Local 1002, 22 FLRA No. 48 (1986).  Proposals providing that work
 assignments will be altered or tailored to accommodate employees who are
 temporarily unable to perform their regularly assigned duties because of
 illness or injury have been held to be nonnegotiable.  National
 Federation of Federal Employees, Local 1624 and Air Force Contract
 Management Division, Hagerstown, Maryland, 3 FLRA 142 (1980);  National
 Federation of Federal Employees, Local 943 and Department of the Air
 Force, Headquarters Keesler Technical Training Center, Keesler Air Force
 Base, Mississippi, 19 FLRA No. 113 (1985) (Proposal 2).  However, the
 Authority has not had occasion to consider to what extent, if any,
 management's right to assign work and employees under section
 7106(a)(2)(A) and (B) is affected by the requirements of the
 Rehabilitation Act of 1973 and its implementing regulations under which
 handicapped employees are entitled to reasonable accommodation unless
 the agency can demonstrate that the "accommodation would impose an undue
 hardship on the operation" of its program (29 C.F.R. Section
 1613.704(c)).
 
    The rights to be accorded handicapped employees, including the effect
 of certain other Federal laws and the extent of any reasonable
 accommodation has been addressed in several cases.  In the first case
 certified to the Special Panel under 5 U.S.C. Section 7702, /2/ the
 Panel resolved a conflict between the Equal Employment Opportunity
 Commission (EEOC) and the Merit Systems Protection Board (MSPB) over the
 interpretation of certain civil service directives.  EEOC must be
 considered as a possible means of reasonable accommodation for
 handicapped employees.  MSPB maintained that reassignment need not be
 considered as a means of reasonable accommodation since assignment
 constitutes an area of agency discretion under civil service law.  The
 Panel concluded that the EEOC did not misapply the civil service
 directives and held there was nothing unreasonable in the EEOC's
 decision that reassignment is within the scope of reasonable
 accommodation under the Rehabilitation Act.  Ignacio v. U.S. Postal
 Service, Special Panel No. 1, February 27, 1986, 86 FMSR 7026.
 
    In a later decision, the Special Panel stated that an "appallant may
 not force consideration of reassignment ad infinitum" where there are no
 vacant positions available.  Lynch v. Department of Education, Special
 Panel, August 20, 1986, Docket No. DC07528210746;  DC531D8211379.  The
 Panel reiterated that its decision in Ignacio only requires that
 reassignment be considered as a reasonable accommodation and does not
 require an agency to create a position where none exists.  Lynch, note
 10.
 
    In a court case involving a discharged postal worker who claimed that
 he was not accorded reasonable accommodation for his handicapped
 condition, a district court held that the regulations implementing the
 Rehabilitation Act do not enumerate reassignment as a required
 accommodation and noted that there are no cases which hold that
 reassignment is required, including Ignacio.  Carty v. Carlin, 623 F.
 Supp. 1181, 1185 (D.Md. 1985).  The Court concluded that the duty to
 reasonably accommodate only contemplates accommodation of a qualified
 handicapped employee's present position and does not include a
 requirement to transfer or reassign an employee to another position.
 
    With regard to an agency's duty under the Rehabilitation Act to
 accommodate a handicapped employee by restructuring the employee's
 position, the Sixth Circuit has held that the agency is not required to
 eliminate the essential functions of the employee's job or to
 restructure the job in a manner which would usurp the legitimate rights
 of other employees in a collective bargaining agreement.  Jasany v. U.S.
 Postal Service, 755 F.2d 1244, 1250 (6th Cir. 1985).  The Court held
 that the appellant was not a handicapped person within the meaning of
 the Rehabilitation Act and therefore failed to establish a prima facie
 case of handicap discrimination.  However, the Court held that even if
 the employee were handicapped the Postal Service was not required to
 accommodate him by eliminating one of the essential functions of his job
 which was the operation of a certain mail sorting machine.  The Court
 rejected the employee's contention that he could have been reassigned to
 the related job of "allied man" on the machine and noted that nothing in
 the record pertained to the existence of such a position and that the
 suggestion "confuses accommodation with elimination of an essential
 function." Jasany at 1251.
 
    In the circumstances of this case, the grievant was certified as a
 qualified handicapped employee by the Agency.  As such, she was entitled
 to "reasonable accommodation" which under 29 C.F.R. Section 1613.704(b)
 includes "job restructuring" among other possibilities.  The Arbitrator
 determined that the Agency failed to meet its obligation to provide
 reasonable accommodation to the grievant and found that the grievant
 could be assigned to a restructured GS-4 position not requiring use of a
 VDT without imposing undue hardship on the operation of the Agency.
 
    The Authority finds that the Arbitrator's award reflects a proper
 interpretation of the provisions of the Rehabilitation Act of 1973 and
 29 C.F.R. Section 1613.704 consistent with the interpretations made by
 the Special Panel and the courts.  The Agency did not demonstrate to the
 Arbitrator and has not demonstrated in its arguments before the
 Authority that the assignment of the grievant to a restructured GS-4
 position which does not require the use of a VDT terminal would cause it
 undue hardship.  Neither does the Agency show that the operation of a
 VDT is such an essential function of the grievant's clerical position
 that it could not be eliminated and replaced by other appropriate duties
 within the position.  The award simply requires restructuring of the
 grievant's present position, not reassignment, and is consistent with
 law.  Further, consistent with the case law discussed above, the
 Authority finds that nothing in the Statute or its legislative history
 reflects any intent to supersede the provisions of the Rehabilitation
 Act of 1973 and its implementing regulations pertinent here.
 Consequently, there is no basis for the Agency's exception that the
 Arbitrator's award is contrary to 5 U.S.C. Section 7106(a)(2)(A) and (B)
 and to the Rehabilitation Act of 1973.
 
                               V.  DECISION
 
    Accordingly, for the above reasons, the Agency's exception is denied.
 
    Issued, Washington, D.C., November 21, 1986.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) 29 C.F.R. Section 1613.704 pertinently provides:
 
          (a) An agency shall make reasonable accommodation to the known
       physical or mental limitations of a qualified handicapped
       applicant or employee unless the agency can demonstrate that the
       accommodation would impose an undue hardship on the operation of
       its program.
 
          (b) Reasonable accommodation may include, but shall not be
       limited to:  (1) Making facilities readily accessible to and
       usable by handicapped persons, and (2) job restructuring,
       part-time or modified work schedules, acquisition or modification
       of equipment or devices, appropriate adjustment or modification of
       examinations, the provision of readers and interpreters, and other
       similar actions.
 
          (c) In determining pursuant to paragraph (a) of this section
       whether an accommodation would impose an undue hardship on the
       operation of the agency in question, factors to be considered
       include:  (1) The overall size of the agency's program with
       respect to the number of employees, number and type of facilities
       and size of budget;  (2) the type of agency operation, including
       the composition and structure of the agency's work force;  and (3)
       the nature and the cost of the accommodation.
 
    (2) The Special Panel was created by the Civil Service Reform Act of
 1978 for the purpose of resolving disputes between the MSPB and the EEOC
 concerning cases with mixed civil service law and discrimination law
 issues that have been originally appealed to the MSPB.  The Panel's
 jurisdiction in such matters is set out in 5 U.S.C. Section 7702.