50:0069(13)AR - - AFGE, Local 2921 & Army & Air Force Exchange Service, Dallas, TX - - 1994 FLRAdec AR - - v50 p69



[ v50 p69 ]
50:0069(13)AR
The decision of the Authority follows:


50 FLRA No. 13

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2921

(Union)

and

U.S. DEPARTMENT OF DEFENSE

ARMY AND AIR FORCE EXCHANGE SERVICE

DALLAS, TEXAS

(Agency)

0-AR-2607

_____

DECISION

December 21, 1994

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Michael D. Gordon 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 Regulations. The Agency did not file an opposition to the Union's exceptions.

The Arbitrator denied a grievance alleging that the grievant was improperly denied a transfer to another unit as an accommodation for a handicapping condition. The Arbitrator concluded that the Agency's actions were not inconsistent with the collective bargaining agreement or any law.

For the following reasons, we find that the Union has not established that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the Union's exceptions.

II. Background and Arbitrator's Award

The grievant, a computer programmer, filed a grievance alleging that the Agency's denials of her requests to transfer from one unit to another unit as an accommodation for her handicapping condition violated the parties' collective bargaining agreement and provisions of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. (1988) (Rehabilitation Act). As relevant here, the grievance was submitted to arbitration on the following issue, as framed by the Arbitrator:

Whether the Agency's refusal to transfer [g]rievant violates an enforceable right under Article 13 of the Agreement?

Award at 2.(1)

The Arbitrator found that the Agency's refusal to transfer the grievant did not violate Article 13 because that article concerned "'affirmative action programs', not individual claims[.]" Id. at 24. The Arbitrator also found that, even if the article applied, the standards incorporated in it were both "not instructive" and "highly subjective[.]" Id. The Arbitrator concluded that, "to the extent [the] [g]rievant has any enforceable right . . . it arises under the Rehabilitation Act which has been incorporated into the [a]greement by Article 3, § 1." Id. at 25 (footnote omitted).(2)

The Arbitrator determined that the Agency did not violate the Rehabilitation Act because, even if the grievant could establish that accommodation was required, the Agency "properly accommodated her needs within the options and information available to it." Id. at 27. In this regard, the Arbitrator found that the Agency "attempted to accommodate [the] [g]rievant in her existing classification and, then, to reassign her to another classification." Id. at 30. The Arbitrator further found that the record contained no evidence that there were any appropriate vacancies outside the grievant's unit and that, therefore, the Agency's offers to transfer the grievant to several lower-pa