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

50 FLRA No. 13

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).