52:0094(10)AR - - AFGE, Local 1546 and DOD, Defense Logistics Agency, Defense Distribution Region West - - 1996 FLRAdec AR - - v52 p94



[ v52 p94 ]
52:0094(10)AR
The decision of the Authority follows:


52 FLRA No. 10

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1546

(Union)

and

U.S. DEPARTMENT OF DEFENSE

DEFENSE LOGISTICS AGENCY

DEFENSE DISTRIBUTION REGION WEST

(Agency)

0-AR-2731

_____

DECISION

August 29, 1996

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Sam Kagel 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 filed an opposition to the Union's exceptions.

The Arbitrator denied a grievance alleging that the Agency transferred the grievant without providing the grievant with the 2-week written notification required by the parties' collective bargaining agreement. For the following reasons, we conclude that the Union's exceptions fail to establish that the Arbitrator's award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.

II. Background and Arbitrator's Award

The grievant, a material handler assigned to the 7 a.m. to 3 p.m. shift in the packing and shipping branch of Sharpe Depot, returned to work following surgery and presented management with physicians' notes outlining his physical limitations. After management was unable to accommodate the grievant's medical limitations at Sharpe Depot, the grievant was transferred to the Light Duty Center at Tracy, California, and was assigned to the 9:30 a.m. to 6 p.m. shift.

Claiming that he had been transferred without the 2-week written notification required by Article X, Section 6 of the parties' collective bargaining agreement, the employee filed a grievance.(1) The grievance was not resolved, and the matter was submitted to arbitration. The parties stipulated to the issue as follows:

Whether the Employer violated the agreements of the Parties by failing to provide the advanced two weeks written notice when it temporarily changed [the grievant's] shift and duty station to accommodate his temporary medical disability.

Award at 1.

The Arbitrator determined that the Agency made reasonable efforts to accommodate the grievant's medical limitations at Sharpe Depot. The Arbitrator found that the grievant did not inform his supervisor of the child-care problems which would result from his transfer. The Arbitrator also determined that the 2-week notification period would have adversely affected the Agency's costs. The Arbitrator concluded that the Agency, consistent with the collective bargaining agreement, could temporarily transfer the grievant to accommodate his temporary medical condition without the 2-weeks' notification because of these adverse costs. The Arbitrator stated that the grievant's failure to inform the Agency of his child-care problem did "not nullify the Agency's right to make[,] under the circumstances of this case[,] his transfer." Award at 6. Accordingly, the Arbitrator denied the grievance.

III. Positions of the Parties

A. The Union's Exceptions

The Union disputes the Arbitrator's finding that the grievant did not inform his supervisor of the child-care problems that would result from the grievant's transfer. Rather, according to the Union, the grievant did inform his supervisor of his child-care problems resulting from the transfer, and, but for the Arbitrator's incorrect finding, the Arbitrator would have sustained the grievance. The Union also maintains that the award is inconsistent with both Article X, Section 6 of the agreement and with Article XXIX, Section 6(b), which addresses an arbitrator's authority to interpret the agreement.(2) In addition, the Union claims that the award discriminates against employees with disabilities. In particular, the Union asserts that the award "discriminates against employees that are handicapped, with disabilities. (Disparate Treatment)." Exceptions at 1 (emphasis in original). The Union states that "[d]isparate treatment is substantiated by the fact that employees that are not handicapped receive the two week written notice, in advance before their shift hours are changed[,]" but handicapped employees do not receive that notice. Id. Finally, the Union asserts that the Arbitrator erred in evaluating the evidence, determining the credibility of the Agency's witnesses, and by failing to allow pertinent information to be presented during the arbitration.

B. The Agency's Opposition

The Agency maintains that the Arbitrator properly sustained its decision to temporarily transfer the grievant without providing 2 weeks' notification set forth in Article X, Section 6 of the parties' collective bargaining agreement. The Agency argues, first, that the Union failed to make a discrimination claim before the Arbitrator and, therefore, the Union is barred from asserting the claim before the Authority. Second, the Agency contends that, even if the discrimination claim was properly presented, it is without merit because the Agency made reasonable efforts to accommodate the grievant's medical condition before transferring him, and the 2-week notice would have substantially increased the Agency's costs. Finally, the Agency asserts that the award is consistent with the collective bargaining agreement.

IV. Analysis and Conclusion

A. The Award Is Not Based On a Nonfact

We construe the Union's claim that the Arbitrator based his decision on the incorrect finding that the grievant did not inform his supervisor that the temporary transfer would affect his ability to obtain child-care as a claim that the award is deficient because it was based on a nonfact.

To establish that an award is based on a nonfact, the appealing party must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593 (1993). The mere fact that an appealing party disputes an arbitral finding does not provide a basis for concluding that an award is based on a nonfact. Federal Employees Metal Trades Council, Local 127 and U.S. Department of the Navy, Mare Island Naval Shipyard, Mare Island, California, 51 FLRA 1259, 1261 (1996). It is well-settled that parties choose arbitrators for the purpose of observing witnesses and evaluating their testimony. United Paperworkers v. Misco, Inc., 484 U.S. 29, 45 (1987).

Although the Union asserts that the Arbitrator based his award on an incorrect finding that the grievant did not inform his supervisor that the temporary transfer would affect the grievant's ability to obtain child-care, the Union has not demonstrated that the Arbitrator's determination was erroneous. Moreover, even if the Arbitrator's conclusion was incorrect, the Arbitrator found that the grievant's transfer, without the 2-week notice, was permitted under the parties' agreement because the notice would have adversely affected the costs of the Agency. As such, the Arbitrator's determination was not central to his decision. In these circumstances, the Union has not demonstrated that the award is based on a nonfact. Accordingly, we deny this exception.

B. The Award Draws Its Essence From the Parties' Agreement

We construe the Union's argument that the award is inconsistent with Article X, Section 6, as a claim that the award fails to draw its essence from the agreement.

Under the parties' agreement, the 2-week notification prior to a transfer was not required if the Agency demonstrated that the notice would handicap its mission or increase its costs. The Arbitrator determined that, because the 2-week notification to the grievant would have adversely affected the Agency's costs, the notification was not required. The Union has not demonstrated that the award is irrational, unfounded, implausible or evidences a manifest disregard for the agreement. See United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-76 (1990). As the Union fails to show that the award does not draw its essence from the parties' collective bargaining agreement, we deny this exception.

C. The Arbitrator Did Not Exceed His Authority

Article XXIX, Section 6(b) of the parties' collective bargaining agreement precludes the Arbitrator from altering, amending or modifying any provisions of the agreement. We construe the Union's claim that the award violated Article XXIX, Section 6(b) as a claim that the Arbitrator exceeded his authority.

Arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration, resolve an issue not submitted to arbitration, disregard specific limitations on their authority or award relief to those not encompassed within the grievance. U.S. Department of Agriculture, Animal and Plant Health Inspection Service, Plant Protection and Quarantine and National Association of Agriculture Employees, 51 FLRA 1210, 1218 (1996). Although the Union states that the Arbitrator violated Article XXIX, Section 6(b), the Union has not demonstrated that the Arbitrator disregarded specific limitations on his authority by altering, amending or modifying the collective bargaining agreement.

The Arbitrator exercised his power under both the collective bargaining agreement and Authority case law to interpret provisions of the agreement. The Union's exception is merely an attempt to recast the Arbitrator's contract interpretation as an improper contract modification. See U.S. Department of the Treasury, United States Mint, Philadelphia, Pennsylvania and Fraternal Order of Police, Lodge F1-PA, 51 FLRA 1683, 1686 (1996). Therefore, the Union fails to establish that the Arbitrator altered, amended or modified the collective bargaining agreement and, thereby, disregarded specific limitations on his authority. As the Union does not make any other claim that the Arbitrator otherwise exceeded his authority, we deny this exception.

D. The Award Is Not Contrary To Law

Although the Union alleges that the Arbitrator's award discriminates against handicapped employees, the Union has not cited any law or other requirement that supports its allegation. Based on our reading of the record as a whole, we construe this exception as a claim that the award is contrary to law. We base this construction on the testimony of a Union witness, before the Arbitrator, who referred to the Rehabilitation Act of 1973 (the Rehabilitation Act), and on the Arbitrator's discussion of whether the Agency made reasonable attempts to accommodate the grievant's medical limitations.(3) Contrary to the Agency's claim that the allegation of discrimination is not properly before the Authority, we conclude, based on the record as a whole, that the Union raised and litigated the issue before the Arbitrator. Transcript at pp. 35-36.

In circumstances where the exceptions involve an award's consistency with law, we review the questions of law raised by the arbitrator's award and the union's exceptions de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). We address the Rehabilitation Act, 29 U.S.C. § 701 et seq., claim on two grounds: (1) whether the award results in disparate treatment of handicapped employees by denying such employees the 2-week notice under Article X, Section 6 that is provided to non-handicapped employees; and (2) whether the award is otherwise contrary to the Rehabilitation Act.

The Rehabilitation Act was designed to eliminate discrimination against handicapped individuals in federally assisted programs. 29 U.S.C.A. § 794 n.2. In order to establish that the Agency discriminated against the grievant in violation of the Rehabilitation Act, the Union must first show that the grievant is a "handicapped person" within the meaning of 29 U.S.C. § 706(8)(B).(4) The fact that an individual is not physically capable of performing one particular job does not establish that the individual is a handicapped person, particularly when he or she has not established that his or her ability to obtain other employment is substantially limited. Taylor v. U.S. Postal Service, 771 F. Supp. 882, 888 (S.D. Ohio 1990) (Taylor).

Although the grievant's physicians' notes establish that the grievant had some physical limitations, the grievant's impairments were of a different type and lesser degree of severity than those typically within the definition of a handicapped person.(5) Additionally, the Union has not established that the grievant's ability to obtain other employment was substantially limited. In fact, the grievant brought his claim because he was transferred to the facility at Tracy where he could be successfully employed. Because the Union has not demonstrated that the grievant was impaired or substantially limited in his ability to obtain other employment, the Union has failed to establish that the grievant is a handicapped employee within the meaning of the Act. Because the grievant has not established that he is a handicapped individual within the meaning of the Act, he is not a member of the class entitled to special protection under the Act.

Moreover, even assuming arguendo that the grievant is a qualified handicapped employee within the meaning of the Act, there is no evidence that the award results in disparate treatment of the grievant, as the Union claims. The Arbitrator's award is based on his interpretation and application of the notification provision in the parties' collective bargaining agreement, Article X, Section 6. The express wording of that provision does not differentiate between handicapped and non-handicapped employees. The Union has not demonstrated, and there is nothing in the record to suggest, that the 2-week notification period has been applied differently to handicapped and non-handicapped employees. Accordingly, the Union has failed to establish that the Arbitrator's award results in disparate treatment of the grievant.

Finally, we address whether the award is otherwise contrary to the Rehabilitation Act. The Rehabilitation Act imposes a duty on Federal agencies to make reasonable accommodations to the limitations of their qualified handicapped employees unless the agency can show that to do so would impose undue hardship on its operations. American Federation of Government Employees, Local 2921 and U.S. Department of Defense, Army and Air Force Exchange Service, Dallas, Texas, 50 FLRA 69, 72 (1994). Assuming arguendo that the grievant is a qualified handicapped employee within the meaning of the Act, the Arbitrator found that the Agency made reasonable attempts to accommodate the grievant's medical condition at Sharpe Depot, including assigning the grievant to other duties, which the grievant inadequately performed, could not perform or refused to perform. There is no support for the Union's sole claim to the contrary -- that there were vacant positions within the grievant's unit at Sharpe Depot to which the grievant could have been assigned or to which the Agency refused to assign to the grievant. Therefore, the Union has not established that the Agency failed to make reasonable accommodations to the medical limitations of the grievant.

For the foregoing reasons, the Union has not established that the award is inconsistent with the Rehabilitation Act. Accordingly, we deny this exception.

E. The Arbitrator Conducted a Fair Hearing

We construe the Union's assertion that the Arbitrator erred in evaluating the evidence, in determining the credibility of the Agency's witnesses, and by failing to allow pertinent information to be presented as a claim that the Arbitrator failed to conduct a fair hearing.

The Authority will find an award deficient when it determines that an arbitrator failed to conduct a fair hearing by refusing to consider pertinent and material evidence or by other actions which prejudice a party and affect the fairness of the proceeding as a whole. American Federation of Government Employees, Local 1668 and U.S. Department of the Air Force, Elmendorf Air Force Base, Anchorage, Alaska, 50 FLRA 124, 126 (1995). Disagreements with an arbitrator's findings of fact and evaluation of evidence and testimony, including the credibility of witnesses and the weight to be given their testimony, will not establish that an award is deficient. American Federation of Government Employees, Local 3295 and U.S. Department of the Treasury, Office of Thrift Supervision, Washington, D.C., 51 FLRA 27, 32 (1995).

The Union has not demonstrated that the Arbitrator prejudiced the grievant or affected the fairness of the proceedings. Instead, the exception is based on the Union's interpretation of the evidence presented and conclusory assertions that the Agency's witnesses lied under oath and that, therefore, the Arbitrator erred in crediting their testimony. Additionally, although the Union claims that the Arbitrator refused to hear pertinent or material evidence, the Union does not indicate with any specificity what information the Arbitrator refused to consider. In fact, the Union concedes that several Union witnesses were not presented because their testimony would have been unrelated to the contract issue before the Arbitrator. Therefore, the Union has not established that the Arbitrator failed to conduct a fair hearing. Accordingly, we deny this exception.

V. Decision

The exceptions are denied.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. Article X, Section 6, entitled "Change in Tour of Duty," states:

Employees will be provided a two week written notice in advance of a workshift change unless the organization would be seriously handicapped in carrying out its functions or that costs would be substantially increased. Employees will be returned to their regular workshift when the need of their services on other than their regular workshifts have been met.

Opposition at 1.

2. Article XXIX, Section 6(b) of the parties' collective bargaining agreement states that, "[t]he arbitrator will have no authority to add to, subtract from, alter, amend, or modify any provisions of this [a]greement." Attachment to Exceptions at 1.

3. The Union makes no claim based on, and, therefore it is unnecessary to address, the Americans With Disabilities Act (ADA) of 1990. In any event, it is noted that the ADA does not apply to Federal agencies because the United States is not an employer for ADA purposes. U.S. Department of the Air Force, Headquarters Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government E