40:0043(7)AR - - Justice, INS, El Paso, TX and AFGE, National Border Patrol Council, Local 1929 - - 1991 FLRAdec AR - - v40 p43

[ v40 p43 ]
The decision of the Authority follows:

40 FLRA No. 7













April 9, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Sanford Cohen filed by the Agency and 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. Both parties filed oppositions to each other's exceptions.(1)

The grievance concerned an employee's claim that, because of allergies and asthma which had developed while he was assigned to the El Paso Border Patrol Sector, he was a "qualified handicapped person" under 29 C.F.R. § 1613.702(f) and was entitled, among other considerations, to reassignment to the northeast United States as a reasonable accommodation for his handicapping condition. The Arbitrator ruled that the grievant was entitled to the right of first refusal of any limited duty assignments which become available in the El Paso area for which he is qualified. The Arbitrator also awarded backpay for certain days for which the grievant was denied sick leave and charged with being absent without leave (AWOL).

As one of its exceptions, the Agency asserts that the Arbitrator was without jurisdiction to decide this case under section 7121(d) of the Statute because the grievant had filed a formal equal employment opportunity (EEO) discrimination complaint on the same matter before filing the grievance in this case. For the following reasons, we agree with the Agency that the grievant filed a formal EEO complaint on February 22, 1989, that concerned the same matter on which the grievant filed a grievance on July 24, 1989. Accordingly, we will set the award aside because the Arbitrator lacked jurisdiction under section 7121(d) of the Statute to resolve the grievance.

II. Background and Arbitrator's Award

The grievant is a Border Patrol agent and has been assigned to the Fabens, Texas station in the El Paso Border Patrol Sector since 1984. In 1987, the grievant began to suffer increasingly from allergies, sinusitis, and asthma. Medical tests diagnosed the allergies as resulting from exposure to "virtually all the trees, grasses, weeds, molds and dust in the Southwest desert." Award at 2. In April 1988, the grievant filed a claim with the Office of Workers' Compensation Programs (OWCP) for reimbursement for medical treatment and expenses. The request was granted. At the same time, the grievant "submitted a request to the Agency for a management need transfer, at [G]overnment expense, to the Northeastern part of the United States." Id. at 3. The transfer request was denied.

In the latter part of 1988, the grievant requested the Agency to provide him with dust masks. The Agency responded negatively to that request in March 1989. However, "[o]n May 19, 1989, after the OWCP accepted the [g]rievant's claim for benefits, [g]rievant received notice from his EEO counselor of his entitlements under Workers' Compensation including a prescription for dust masks." Id. at 4. The grievant also requested the Agency to provide him with clean vehicles in which to work. When the Agency replied that clean vehicles were not available due to lack of funds, the grievant requested that he be placed on limited duty, administrative leave, or sick leave until such time as clean vehicles became available. That request was denied by the Patrol Agent in Charge (PAIC). The grievant then made a request to the El Paso Sector Health and Safety Committee "that the committee find that the unnecessary exposure to the allergens to which he was allergic was a violation of Article 17 Section A of the Agreement." Id. Article 17, entitled Health and Safety, section A of the parties' collective agreement provides: "The Agency agrees to provide safe and healthful working conditions, taking into account the mission of the Agency and the inherent hazards of the job performed."

The grievant filed formal EEO discrimination complaints on February 22, 1989, and July 5, 1989. See Exceptions, Exhibits 2 and 4. In his complaint of February 22, 1989, the grievant alleged, in part, that management had failed to afford him a reasonable accommodation with respect to his handicapping condition of an allergic asthmatic condition by denying his request for a transfer to the northeastern United States. See Exceptions, Exhibit 2 at 3. In his complaint of July 5, 1989, the grievant alleged that management had failed to provide him with a reasonable accommodation for his handicapping condition by not providing dust masks, not assigning him a new air-tight vehicle, and not restructuring his position at the Station. See Exceptions, Exhibit 4 at 8.

On July 24, 1989, the grievant filed a formal grievance under the parties' negotiated grievance procedure. See Exceptions, Exhibit 5. In the grievance, the grievant noted that management had denied his requests for reasonable accommodations for his allergic asthmatic condition. The grievant requested that he be transferred to the northeastern part of the United States and contended that he was entitled to such an accommodation from management "as a qualified handicapped individual (allergies)." See id. at 2.

On July 25, 1989, the grievant notified the Agency of a medical certificate which advised that he should work only in a dust-free vehicle. The PAIC ordered the grievant to use the vehicles available. The grievant refused to use the available vehicles or to work because the vehicles were not dust-free. Because of the grievant's refusal to work, he was listed as being AWOL for July 25, 26 and 27.

On July 29, there was a similar dispute over using a vehicle which the grievant alleged was dirty. The PAIC ordered the grievant to wash out the vehicle with a water hose. The grievant did that and as a result damaged electronic equipment in two vehicles. The grievant then followed the orders of the PAIC to use the PAIC's vehicle on the tour of duty for that night.

On August 21, the Agency indicated, in an interim response to the grievant's step 3 grievance, that it was "unable to address the grievance until it received the medical report of a fitness-for-duty examination that had been ordered for the [g]rievant." Id. at 7. On August 30, the grievant underwent a "Histamine Bronchial Challenge." The doctor's written report of the test stated that the grievant's "hyper-reactivity was found to be minimum." Id. On October 20, as part of the fitness-for-duty examination, the grievant submitted to a "Methocholine Challenge" which resulted in a finding that the "[g]rievant's response does not support a diagnosis of bronchospastic airways disease." Id.

The grievance was submitted to arbitration. The Arbitrator noted that there was a dispute between the Agency and the Union as to the issue to be arbitrated. The Union stated the issue as:

Did management violate Article 17, Section A of the Collective Bargaining Agreement when it failed to provide the grievant with a reasonable accommodation to his handicapping condition? If so, what shall the remedy be?

Id. at 1.

The Agency stated the issue as:

Did the Agency violate Article 17 A of the negotiated agreement by not providing safe and healthful working conditions for the grievant, taking into account the mission of the [A]gency and inherent hazards of the job performed and, if so, what shall the remedy be?


The Arbitrator noted that the Union included "a conclusion that the Agency does not accept, i.e., that [the grievant] is a handicapped employee, entitled to 'reasonable accom[m]odation[,]'" while the Agency "would limit the issue to the consideration of whether the employer, in some respect, violated Article 17A[.]" Id. The Arbitrator concluded that "the issue is fully framed by the respective statements with the qualification that this conclusion is not to be construed as a prior determination on the merits of any arguable propositions embodied in the two statements." Id.

In summarizing the Union's position, the Arbitrator noted the Union's arguments that the grievant suffered from a severe medical condition that "severely limit[ed] his ability to perform his normal duties as a Border Patrol Agent in the Southwest area[,]" and that the Agency violated Article 17, section A of the parties' collective bargaining agreement when it "with full knowledge of [g]rievant's medical condition, required that he work in a hostile environment." Id. at 9. The Arbitrator also noted the Union's argument that the grievant "is a 'qualified' handicapped employee and therefore is entitled to special consideration under law." Id. at 10. The Arbitrator stated that the grievant "claims that he is an 'allergic asthmatic,' a condition construed as handicapping in Bernadine Lamb v. Department of the Navy, EEOC No. 03850215[,]" and that he "believes he meets the definition of a 'qualified handicapped person' under the definition set forth in 29 CFR 1613.702(f)." Id.

The Union also contended to the Arbitrator that the Agency's refusal to supply requested information that would bear on whether a transfer for the grievant would result in a hardship to the Agency was a violation of section 7116(a)(1), (5) and (8) of the Statute. The Union maintained that the information it sought "would have shown that the 'reasonable accom[m]odation sought by the [g]rievant would not have imposed an undue burden upon the Agency and that a GS-9 Border Patrol Agent vacancy exists in the Watertown, New York Border Patrol Station." Id. at 11. The Union asserted that while the grievant at first sought only "a simple job restructuring[,]" the grievant "now believes that only relocation to the northeastern part of the country would provide a feasible way of assuring that he fits the definition of a qualified handicapped person." Id.

The Agency maintained that Article 17, section A of the parties' agreement does not require management to supply special equipment to the grievant and asserted that "it would be impossible to accomplish the mission of the service if Article 17 (A) were interpreted to mean that management must provide a dust-free vehicle or dust-free environment for Border Patrol Agents." Id. at 12. The Agency denied that the grievant was improperly refused a limited duty assignment or sick leave. The Agency disputed the grievant's "interpretation of 'reasonable accom[m]odation,' his claim of 'qualified handicap' status, and his entitlement to the remedy he seeks through arbitration." Id. at 14. The Arbitrator noted that the Agency also questioned the grievant's reliance on Bernadine Lamb v. Department of the Navy and stated that the Agency "does not concede that [the g]rievant has met the burden of proving that he is a 'qualified handicapped person' under the Rehabilitation Act." Id. The Agency argued that there was no support for the grievant's "contention that he suffers from reactive airway disease[,]" and even assuming that he does and "is found to be a qualified handicapped person, a transfer to the northeastern part of the United States is not a reasonable accom[m]odation." Id. at 14-15.

The Arbitrator found that medical records established that the grievant was allergic to the dust and pollens found in the El Paso, Texas area. However, he ruled that while the evidence supported a finding that the grievant was "occasionally incapacitated during certain seasons[,]" the grievant had not presented "the level of proof required to establish his status as a 'qualified handicapped' person." Id. at 17.

The Arbitrator found that the Agency had failed to comply with Article 17, section A of the parties' collective bargaining agreement because it had not provided the grievant with "safe and healthful working conditions[,]" and had failed to comply with Article 20 which "specifies that any employee who has been injured or incapacitated and [is] able to perform limited duty will be assigned to such duties that he is able to perform, when such duty is available, until he has recovered from the injury or incapacitation." Id. at 17-18. The Arbitrator found that "the Agency's abrupt rejection of [the g]rievant's request for limited duty did not comply with either the letter or spirit of Article 20." Id. at 19.

The Arbitrator rejected the Agency's contentions that there were no limited duty positions at the Fabens station and that the Agency did not have permanent limited duty positions. The Arbitrator noted that other employees in the El Paso Sector had been assigned to limited duty. The Arbitrator made the following award:

The Agency will offer [the grievant] a right of first refusal of any limited duty assignments that become available in the El Paso [S]ector and that he is qualified to perform, subject to the condition that his treating physician certifies that he is in need of temporary reprieve from regional allergens at the time that the limited duty assignment is available.

Because of [the] Agency's failure to inquire as to the availability of limited duty in the El Paso [S]ector on June 12, 13, 15 and July 25, 26, 27, 1989, the AWOL's charged against [the grievant] for those days will be removed from his record and he will be made whole for the loss of salary and other benefits on the days noted.

Id. at 20.

III. The Arbitrator Lacked Jurisdiction Under Section 7121(d) of the Statute

A. Positions of the Parties

1. The Agency

The Agency maintains that the Arbitrator lacked jurisdiction over the grievance under section 7121(d) of the Statute because the grievant had already filed an EEO complaint over the matter.(2)The Agency states that the grievance was filed on July 24, 1989, and that EEO complaints had been filed on February 22, 1989, and July 5, 1989, on the same matter raised in the grievance--the grievant's "allegation that management failed to accommodate his alleged handicapping condition." Exceptions at 10.

The Agency states that on February 22, 1989, the grievant filed an EEO complaint, No. I-89-5654, in which he alleged that management had failed to provide him with a reasonable accommodation for his handicapping condition of asthma. The complaint alleged that management had not transferred him at Government expense to the northeastern United States and that management had delayed processing his claim for workers' compensation filed with the OWCP. See id. at 11; Exceptions, Exhibit 2. The Agency asserts that "the allegation that management failed to accommodate [the grievant's] handicap by refusing to reassign him to a duty station in the Service's Northeastern Region concerns precisely the same matter posed by the grievance leading to the instant award and repeated by the Union in its arguments before the Arbitrator." Exceptions at 11.

The Agency states that the grievant filed another EEO complaint on July 5, 1989, No. I-89-5705, in which he alleged that management failed to provide him with reasonable accommodation for his allergy problem. See id.; Exceptions, Exhibit 4. In that complaint, the grievant alleged that management refused to make a reasonable accommodation when it (1) recommended the use of dust masks supplied by the Agency rather than purchased under a doctor's prescription; (2) required the grievant to use sick leave when disabled by his allergies; (3) refused to assign him a new, air-tight vehicle; and (4) refused to restructure a new position at the El Paso Station headquarters and reassign the grievant to that position. Id.

The Agency states that the word "matter" as used in section 7121(d) of the Statute "refers to prohibited personnel practices under 5 U.S.C. section 2302(b)(1)," such as "complaints of discrimination against an employee, like the one the [g]rievant sought to press through the negotiated procedure here, 'on the basis of handicapping condition, as prohibited under section 501 of the Rehabilitation Act of 1973 (29 U.S.C. [§] 791) . . . .'" Id. at 12 (quoting 5 U.S.C. § 2302(b)(1)(D)). The Agency asserts that "the [a]ward in question here is void ab initio because it purports to cover the same 'matter' which the [g]rievant had elected to raise under the EEOC's statutory appeals procedure by filing not one, but two formal EEO complaints based upon his alleged handicapping condition prior to initiating the grievance leading to the award at issue here." Id. at 12-13.

2. The Union

The Union contends that the evidence presented by the Agency to support its contention that the Arbitrator lacked jurisdiction in the matter should not be considered because neither the Agency's contention nor the evidence was presented to the Arbitrator at the hearing. The Union contends that the Authority should reject the Agency's attempt to present new evidence in the case and that the Agency's arguments concerning the Arbitrator's jurisdiction under section 7121(d) should not be considered.

The Union disputes the Agency's argument that the issue in the grievance decided by the Arbitrator was the same as the matter complained of in formal EEO discrimination complaints. The Union points out that the Agency never raised the issue of lack of jurisdiction at the arbitration hearing and asserts that the issue before the Arbitrator was whether there was a violation of a health and safety provision in the parties' collective bargaining agreement. The Union states that "[t]he [A]gency has not presented, nor can they present, any evidence, legitimately or otherwise, which would show that the grievant or the Union filed a formal EEO Complaint alleging that management violated Article 17[,] section A of the [agreement]." Union's Opposition at 4. In a footnote to that statement, the Union states:

The EEO documents the [A]gency improperly submitted with their exceptions deal with discrimination and reprisal in connection with the [A]gency's: 1) mismanagement and mishandling of the grievant's OWCP claim, and; 2) failure to provide the grievant with a requested reasonable accommodation to his handicapping condition (which dealt with his receiving dust masks, a new vehicle for his exclusive use, the restructuring of his position and use of official time and a government vehicle to receive medical treatments).

Id. at 4 n.4.

B. Analysis and Conclusions

As a preliminary matter, we deny the Union's motion to strike 14 documents attached as exhibits to the Agency's exceptions. Those documents relate to the Agency's claim that the Arbitrator was without jurisdiction under section 7121(d) of the Statute because of statutory EEO complaints filed earlier on the same matter as that in the grievance.  The Union contends that the documents were not part of the hearing record before the Arbitrator and, therefore, constitute new evidence that was not presented before the Arbitrator. Further, the Union requests that the Authority not consider the Agency's arguments concerning the Arbitrator's jurisdiction.

We find that there is no basis for granting the Union's motion. The challenged Agency exhibits and arguments address whether the Arbitrator's award is deficient as conflicting with section 7121(d) of the Statute and, therefore, are properly before us. Accordingly, we will consider the Agency's arguments that the award is deficient under section 7121(d) of the Statute. However, we note in this regard that good practice dictates that such arguments should be brought to the attention of the arbitrator.

The Statute provides in section 7121(d) that when an employee affected by a prohibited personnel practice under 5 U.S.C. § 2302(b)(1), such as an allegation of discrimination, has raised the matter under a statutory procedure, the employee may not file a written grievance under the negotiated grievance procedure concerning the same matter. For a grievance to be precluded by section 7121(d), two conditions must be met: (1) the matter which is the subject of the grievance must be the same matter which was the subject of the action initiated under the statutory procedure; and (2) such matter must have been earlier raised by the employee timely initiating an action under the statutory procedure. See American Federation of Government Employees, Local 1760 and U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, Region II, 36 FLRA 212, 215-16 (1990) (Office of Hearings and Appeals, Region II) (award set aside because the matter before the arbitrator was precluded from being raised as a grievance by section 7121(d) of the Statute; the grievant had earlier raised the matter of her suspension as a formal complaint of discrimination under the statutory EEO procedure).

In U.S. Department of Justice, United States Marshals Service and International Council of U.S. Marshals Service Locals, AFGE, 23 FLRA 564 (1986), the Authority held that an EEO complaint filed over a suspension barred a later grievance over the same matter. The Authority discussed in that case what constitutes a "matter" for purposes of section 7121(d) and noted that "[t]he term 'matter' described in section 7121(d) pertains to prohibited personnel practices under section 2302(b)(1)." Id. at 567.  Further, the Authority noted that prohibited personnel practices for purposes of 5 U.S.C. § 2302(b) are any personnel actions defined in section 2302(a). The Authority stated that "a personnel action is central to the prohibited practice of section 2302(b)(1) and specifically encompasses recommended and approved actions." Id. As relevant to the instant case, section 2302(a)(2)(A)(iv) defines a personnel action as "a detail, transfer, or reassignment[.]"

In this case, the grievance filed on July 24, 1989, specifically concerned the grievant's allegation that he was not afforded a reasonable accommodation for his handicapping condition related to allergies and asthma and his request to be "transferred, at Government expense, to the northeastern part of the United States."