U.S. Department of Veterans Affairs, Medical and Regional Center, Togus, Maine and American Federation of Government Employees, Local 2610

[ v55 p1189 ]

55 FLRA No. 192

U.S. DEPARTMENT OF VETERANS AFFAIRS
MEDICAL AND REGIONAL CENTER
TOGUS, MAINE
(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2610
(Union)

0-AR-3090

_____

DECISION

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members. [n1] 

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Sharon Henderson Ellis filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the exceptions.

      The Arbitrator sustained a grievance challenging the Agency's permanent assignment of an employee to the day shift as an accommodation of the employee's diabetes under the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq. (Rehabilitation Act or Act).

      For the following reasons, we conclude that the Agency has failed to establish that the award is deficient. Accordingly, we deny the Agency's exceptions.

II.     Background and Arbitrator's Award

A.     Background

      The boiler room at the Agency's facility operates around-the-clock, seven days a week on three shifts. Boiler room operators, five in number, historically had worked all three shifts on a rotating basis. Based on medical advice from doctors treating one of the boiler operators, Mr. R, for diabetes and sleep apnea, the Agency removed him from the shift rotation and placed him on the day shift permanently. The shift rotation practice had involved two positions on the day shift. As a result of the change in shift assignments to accommodate Mr. R's condition, there was one less day shift position into which the other operators could rotate. Consequently, they were required to work evening and night shifts more frequently and the period of rotation was decreased from ten days to eight.

      After the boiler operators had worked for two years under the altered rotation system, the Union filed a grievance alleging that the accommodation of Mr. R's condition initiated by the Agency "adversely affected the remaining operators and contravened the parties' long practice of rotating the shifts fairly and equitably--a practice that had been incorporated in the collective bargaining agreement." Award at 3. The grievance claimed that a permanent change in shift rotation to accommodate Mr. R was not reasonable and requesting the restoration of the original rotation policy.

      The Agency denied the grievance on the ground that the permanent assignment of Mr. R to the day shift was a reasonable accommodation of his disability. The Union thereupon submitted the grievance to arbitration.

B.     Arbitrator's Award

      Based on the parties' stipulation at the hearing, the Arbitrator stated the issues as follows:

The Stipulated Issues

Does the collective bargaining agreement give the Union standing to grieve the procedures used by the Agency in its determination that Mr. R is handicapped?
If yes, was the above issue timely filed?
If yes, did the Agency violate the contract and/or the law in the way it made its determination that Mr. R was handicapped within the meaning of the Rehabilitation Act?
If so, what shall be the remedy?

Award at 1.

      The Arbitrator concluded that the grievance was timely filed. The Arbitrator found that it was not clear that the Union knew that the shift change was permanent and that reasonable doubts should be resolved in favor of arbitrability. The Arbitrator also found that it was "arguable that the subject matter grieved--the altered shift rotation--is in the nature of a 'continuing [ v55 p1190 ] violation' and need not be filed" within the contractual time limits. Award at 12.

      The Arbitrator reviewed the positions of the Union and the Agency at each stage of the grievance procedure, quoting extensively from their correspondence. In that correspondence, the Union consistently insisted that "a permanent change in tour assignment" was not a reasonable accommodation. Award at 6. The Agency, on the other hand, consistently affirmed that it had "an obligation to try and accommodate our employee's medical conditions[.] Award at 7. The Arbitrator also noted testimony addressing the Agency's reasons for attempting to provide an accommodation for Mr. R's disability.

      Based on the Union's statement of the grievance at each step of the grievance procedure, and the Agency's responses thereto, the Arbitrator stated that "it seems clear that the question presented is whether a medical accommodation that adversely impacts other employees and changes a long time practice implicitly incorporated into the parties' collective bargaining agreement violates or supersedes the parties' agreement." Award at 14. The Arbitrator noted that "the parties' attempts to frame the several layers of issues that emerged [at the hearing] became overly intricate and did not reflect either the original grievance, the managerial responses to it, nor the evidence that was placed into the record." Id. The Arbitrator stated that she would answer the "grievance as it is expressed and framed by the parties' written dialogue during the grievance procedure." Id.

      As to the Union's "legal 'standing' to challenge the [Agency's] effort to comply with the Rehabilitation Act," the Arbitrator found that the Union had the requisite standing because the Agency's accommodation of Mr. R's disability "adversely affects other employees in ways that arguably contravene the contract and/or well established practice[.]" [n2] Id. at 14. In such circumstances, according to the Arbitrator, "the Union has the right to argue that the accommodation violates the collective bargaining agreement." Id. at 15.

      The Arbitrator found that prior to the permanent assignment of Mr. R to the day shift, "all of the operators worked a scheduled rotation through all three shifts." Id. The Arbitrator also found that the rotation schedule was "a longstanding, well-established practice" which, according to the Union, had been "incorporated into the parties' collective bargaining agreement at Article IX, Section 3[.]" [n3]  The Arbitrator noted that the Agency did not dispute the Union's claim that equitable rotation schedules are required by the agreement.

      The Arbitrator rejected the Agency's claim that it was required by the Rehabilitation Act to "modify the agreement and/or practice" to accommodate Mr. R's disability. Citing court precedent, [n4] the Arbitrator found that it was "an 'undue hardship' to accommodate one employee by infringing on the contractual seniority rights of other employees." Id. at 16. According to the Arbitrator, it is a "per se rule" that "accommodations for disabled employees cannot violate a contractual seniority system." Id. The Arbitrator acknowledged that the instant case did not involve seniority, but found that the court cases pertaining to seniority were "directly applicable." Id. at 17. The Arbitrator stated, in this regard, that the case concerned "a substantial[,] not a frivolous[,] contractual right." Id. The Arbitrator concluded that the Agency's accommodation of Mr. R "[did] not stand up to the conflict it poses to the contract and to the terms and practices of the other employees' working conditions." Id. at 18. Consequently, the Arbitrator sustained the grievance and ordered the Agency to "restore the employees to the longstanding shift rotation schedule[.]" Id. [ v55 p1191 ]

III.     The Award is not Deficient on the Ground that the Arbitrator Exceeded Her Authority

A.     Agency's Exception  [n5] 

      The Agency contends that the Arbitrator exceeded her authority by failing to limit her award to the issues stipulated by the parties. Quoting the award, the Agency notes that the Arbitrator stated that she dismissed the stipulated issues as "`overly intricate' and instead addressed `the grievance as it is expressed and framed by the parties' written dialogue during the grievance procedure.'" Exceptions at 5 (quoting Award at 14). The Agency maintains that this dismissal of the stipulation "was clearly and blatantly beyond the scope of her limited authority." Id.

B.     Analysis and Conclusions

      Arbitrators exceed their authority when they resolve an issue not submitted to arbitration. See, e.g., U.S. Department of the Interior, National Park Service, Golden Gate National Recreation Area, San Francisco, California and Laborers' International Union of North America, Local 1276, 55 FLRA 193, 194 (1999) (National Park Service). Arbitrators do not exceed their authority by addressing any issue that is necessary to decide a stipulated issue, see National Air Traffic Controllers Association, MEBA/NMU and U.S. Department of Transportation, Federal Aviation Administration, Southern California TRACON, 51 FLRA 993, 996 (1996), or by addressing any issue that necessarily arises from issues specifically included in a stipulation, see Air Force Space Division, Los Angeles Air Force Station, California and American Federation of Government Employees, AFL-CIO, Local 2429, 24 FLRA 516, 519 (1986) (LA Air Force Station). In addition, we accord an arbitrator's interpretation of a stipulation of issues the same substantial deference that we accord an arbitrator's interpretation and application of a collective bargaining agreement. See U.S. Information Agency, Voice of America and American Federation of State, County, and Municipal Employees, Local 1418, 55 FLRA 197, 198 (1999); LA Air Force Station, 24 FLRA at 518.

      The Agency asserts that the Arbitrator exceeded her authority based solely on the Arbitrator's statement that

the arbitrator's and the parties' attempts to frame the several layers of issues that emerged became overly intricate and did not reflect either the original grievance, the managerial response to it, nor the evidence that was placed into the record. Accordingly, the arbitrator answers the grievance as it is expressed and framed by the parties' written dialogue during the grievance procedure.

Exceptions at 5 (quoting award at 14). Because the Agency relies on these statements as sufficiently supporting its exception, the Agency does not address the scope of the stipulation and what specific issues decided by the Arbitrator were beyond the stipulation.

      We find that the Arbitrator's statements, standing alone, fail to establish that she exceeded her authority. Read in context of the record as a whole, we conclude that the statements of the Arbitrator reflect her interpretation, not rejection, of the stipulation of the parties. The statements reflect that the Arbitrator reviewed the record as a whole in order to construe the issues to be resolved. Based on that review, she concluded that the stipulated issues encompassed the Agency's reasons for accommodating Mr. R despite its obligations under the parties' collective bargaining agreement.

      We have considered the meaning of the portion of the stipulated issue referencing "the way [the Agency] made its determination that Mr. R was handicapped[.]" We find that it is not so precisely framed that it precludes any need for interpretation to determine what questions are presented. Consequently, we believe that rather than ignoring the stipulation, the Arbitrator attempted to first determine and then resolve the issues encompassed by the stipulation. In view of the substantial deference to be accorded the Arbitrator's interpretation, we are not persuaded that she exceeded her authority. Her interpretation of the stipulation is not irrational, implausible, or unfounded or in disregard of the stipulation. Cf. U.S. Department of Defense Dependents Schools and Overseas Education Association, 49 FLRA 658, 663 (1994) (exceeded authority exception denied because arbitrator's formulation of issue did not disregard the issue and was not implausible, unfounded, or irrational).

      Based on the foregoing, we disagree with our dissenting colleague's conclusion that the Arbitrator's formulation of the issue in terms of reasonable accommodation does not constitute an interpretation of the stipulation. Such a restrictive view of the stipulation does not accord the deference demanded to the Arbitrator's determination of the issue. Moreover, the Agency does not argue that the issue of reasonable accommoda- [ v55 p1192 ] tion was beyond the stipulation, and, in fact, the Agency made reference to its reasonable accommodation determination in its closing argument to the Arbitrator. Cf. National Park Service, 55 FLRA at 195 (Authority rejected agency's argument that the arbitrator resolved an issue not encompassed by a stipulation when the agency's case to the arbitrator was not consistent with its claim in its exception that the disputed issue was not part of the issues submitted to arbitration).

      Accordingly, we deny the Agency's exception.

IV.     The Arbitrator's Award is not Deficient on Grounds of Procedural Arbitrability

A.     Agency's Exception

      The Agency contends that the Arbitrator's award violates certain procedural provisions of the parties' collective bargaining agreement. Specifically, the Agency argues that Article 14, Section 1 provides that only issues that remain unresolved after the grievance procedure is exhausted can be submitted to arbitration and both the stipulated issue and the issue addressed by the Arbitrator had not been presented in the grievance procedure. The Agency also argues that, under Article 14, Section 2E, the Arbitrator may formulate the issues only if the parties have not stipulated those issues and the parties stipulated to the issues in this case.

      Moreover, according to the Agency, under Article 13, Section 7, the Union had to submit a grievance within 30 days of the action complained of and the grievance in this case was submitted 19 months after the Agency instituted the change of tour of duty for Mr. R. The Agency claims that the Arbitrator's continuing violation analysis violates the contractual time constraints. The Agency also asserts that the stipulated issue concerns whether Mr. R should be accommodated at all and that this issue "cannot survive the timeliness provisions of the contract because it was not grieved." Exceptions at 11.

B.     Analysis and Conclusions

      In its exceptions the Agency essentially maintains that the Arbitrator's award is deficient because it violates various procedural provisions of the parties' collective bargaining agreement. Specifically, the Agency maintains that the issues addressed by the Arbitrator were not properly before her under the agreement and that the grievance submitted to arbitration was not timely filed. Authority precedent is clear that such procedural arbitrability claims provide no basis for finding the award deficient. An arbitrator's determination as to procedural arbitrability may be found deficient only on grounds other than grounds that challenge the determination of procedural arbitrability itself. See American Federation of Government Employees, Local 2921 and U.S. Department of the Army, Army & Air Force Exchange Service, Dallas, Texas, 50 FLRA 184, 185-86 (1995). Because the Agency's exceptions directly challenge the Arbitrator's procedural arbitrability determination itself, they do not provide a basis for finding the award deficient.

      Accordingly, this exception is denied.

V.     The Arbitrator's Award is not Deficient on Grounds of Essence

A.     Agency's Exception

      The Agency claims that the tour of duty provision of the parties' agreement, Article 9, Section 3, upon which the Arbitrator bases her decision, is limited only to emergency situations and provides that management has the right to assign irregular tours of duty. The Agency also argues that the Arbitrator ignores Article 28 of the agreement which requires the Agency to provide reasonable accommodations to disabled employees such as Mr. R.

B.     Analysis and Conclusions

      The Agency's argument that the Arbitrator's award violates the tour of duty and reasonable accommodation provisions of the parties' agreement can be construed as a claim that the award fails to draw its essence from that agreement. See, e.g., American Federation of Government Employees, Local 3184 and Social Security Administration, Pasadena, Texas, 50 FLRA 449, 453 (1995). The Authority will find that an arbitration award is deficient as failing to draw its essence from the collective bargaining agreement when the appealing party establishes that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575 (1990).

      The Arbitrator found that the parties had a long-standing practice of rotating boiler plant employees through the three shifts on which the plant operated and that this practice had been incorporated into Article 9, Section 3. The Agency does not challenge the existence of the rotation practice, nor the Arbitrator's finding that [ v55 p1193 ] the practice has been incorporated into Article 9, Section 3. That provision concerns irregular tours of duty and provides that changes in such tours should be rotated equitably among qualified employees. The Agency's arguments do not demonstrate that the Arbitrator's interpretation of Article 9, Section 3, as amplified by past practice, is unreasonable, unfounded, implausible, or in any way manifests a disregard for the tour of duty rotation policy prescribed by that provision. The Agency's exception in this regard does not provide a basis for finding the award deficient. See, e.g., U.S. Department of the Interior, Bureau of Reclamation, Lower Colorado Dams Project Office, Boulder City, Nevada and American Federation of Government Employees, Local No. 1978, 40 FLRA 1169, 1179-80 (1991).

VI.     The Arbitrator's Award is not Deficient on the Ground that She Denied a Fair Hearing

A.     Agency's Exception

      The Agency asserts that although the parties stipulated to the issues before the Arbitrator, the Arbitrator allowed the Union to present testimony, over the Agency's objection, that was not relevant to those issues. The Agency contends that, by ignoring the stipulated issues, and deciding the case on testimony that was not relevant to those issues, the Arbitrator denied the Agency a fair hearing. The Agency claims that because it was not on notice as to the issues subsequently decided by the Arbitrator, it was deprived of an opportunity to present evidence relevant to those issues.

B.     Analysis and Conclusions

      The Authority will find an award deficient on the ground that the Arbitrator failed to provide a fair hearing when it determines that an arbitrator's refusal to hear or consider pertinent and material evidence, or other actions in conducting the proceeding, prejudiced a party and affected 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). It is well established that an arbitrator has considerable latitude in conducting the hearing. U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California and Federal Employees Metal Trades Council, Local 127, 53 FLRA 390, 396 (1997).

      The liberal admission of testimony and evidence by an arbitrator is a permissible practice. See, e.g., American Federation of Government Employees, Local 22 and U.S. Department of the Navy, Norfolk Naval Shipyard, 51 FLRA 1496, 1497 (1996). A party's disagreement with an arbitrator's determination regarding the relevance of the evidence is not a ground for finding an award deficient. Id. at 1497. See also U.S. Department of Housing and Urban Development, Denver, Colorado and American Federation of Government Employees, Local 3972, 53 FLRA 1301, 1318 n.8 (1998). The Agency has failed to show that the admission of the disputed testimony and evidence prevented the Agency from presenting its case in full to the Arbitrator or otherwise affected the fairness of the hearing. See U.S. Department of Health and Human Services, Social Security Administration, Region X, Office of Hearings and Appeals and American Federation of Government Employees, Local 3937, 49 FLRA 691, 697-98 (1994). In particular, although the Agency contends that the issue addressed by the Arbitrator was based on the Union's disputed testimony, there is no evidence in the record that the Arbitrator denied an Agency request to obtain or to present evidence in response to that testimony. See American Federation of Government Employees, Local 1406 and U.S. Department of the Air Force, Air Force Flight Test Center, Edwards Air Force Base, California, 54 FLRA 150, 154-55 (1998) (arbitrator does not mention in the award any refusal to admit evidence, excepting party does not provide a hearing transcript, and no excluded evidence is specifically referred to). The Agency's exception does not provide a basis for finding the award deficient on this ground.

      Accordingly, this exception is denied. [ v55 p1194 ]

VII.     The Arbitrator's Award is not Deficient on the Ground that it is Contrary to Law

A.     Agency's Exception

      The Agency asserts that, under the Rehabilitation Act, "management must 'reasonably accommodate' handicapped employees . . . unless the Agency can demonstrate that the accommodation would impose an undue hardship on the operation of its program." Exceptions at 2 (emphasis in the original).According to the Agency, the Arbitrator "expanded" the determination of hardship, contrary to "the clear intent of the law[,]" by giving "standing to other employees in the determination of hardship." Id. The Agency claims that such third party involvement "can undermine the Agency's efforts in its mandated goal of providing equal opportunity to handicapped employees." Id. The Agency argues that the Arbitrator confused two "separate and distinct" determinations: its obligation to provide reasonable accommodation to handicapped employees and its obligation to treat employees equally under the contract. Id. at 3. The Agency maintains that the Arbitrator made a decision reserved to management by putting "the handicapped employee back into the mix in determining the rotating shifts." Id.

      The Agency also asserts that the Arbitrator's award "infringes upon the statutory rights of management[,]" under section 7106(a)(2)(B) of the Statute, "to assign work and to assign tours of duty." Id. at 2. According to the Agency, the award infringes on this right "by ruling that management must assign employees to certain tours of duty." Id.

B.     Analysis and Conclusions

      When a party's exception challenges an arbitration award's consistency with law, rule, or regulation, the Authority reviews the questions of law raised in the exception and the arbitrator's award de novo. See National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1709 (1998). When applying a de novo standard of review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings. Id. at 1710. In making that assessment, the Authority defers to the arbitrator's factual findings. See National Treasury Employees Union, Chapter 50 and U.S. Department of the Treasury, Internal Revenue Service, Carolina District, Charlotte, North Carolina, 54 FLRA 250, 253 (1998).

1.     Rehabilitation Act

      The question presented here concerns the legality of the Agency's accommodation of Mr. R's handicapping condition. In particular, the issue is whether the Arbitrator's award is inconsistent with the Rehabilitation Act because it enforces unit employees' contractual rights to a rotating shift schedule over a permanent shift assignment for one employee as an accommodation of his handicapping condition.

      The well-settled rule under the Rehabilitation Act, as stated by the Arbitrator, is that an agency is not required to accommodate an employee's handicap by violating the rights of other employees under a collective bargaining agreement. Specifically, "[a]n employer cannot be required to accommodate a handicapped employee by [acting] in a manner which would usurp the legitimate rights of other employees in a collective bargaining agreement." Jasany, 755 F.2d at 1251-52 (agency's obligations under collective bargaining agreement establish that reasons for alleged discriminatory action were not pretextual). See also Mason, 32 F.3d at 319-20; Carter, 822 F.2d at 469 (even if there is a duty to accommodate "in some cases, such a duty would not defeat the provisions of a collective bargaining agreement unless it could be shown that the agreement had the effect or the intent of discrimination"); Daubert, 733 F.2d at 1370 (agency's "contractual obligations to its employees and their union under the collective bargaining agreement clearly articulates a legitimate business reason" for the alleged discriminatory action). [n6] 

      The well-settled rule in cases arising under the Rehabilitation Act is that where there is a conflict between the terms of a collective bargaining agreement and an employer's obligation to reasonably accommodate a handicapped employee the agreement takes precedence. By enforcing unit employees' right under the collective bargaining agreement to a rotating shift schedule, notwithstanding the Agency's claim that it is obligated to accommodate Mr. R's handicapping condi- [ v55 p1195 ] tion by permanently assigning him to the day shift, the Arbitrator's award properly enforced the parties' agreement and, therefore, did not violate the Rehabilitation Act. Moreover, the Agency has cited no precedent demonstrating that the Rehabilitation Act deprives a union of standing to grieve an agency action providing reasonable accommodation on the grounds that the action violates the parties' collective bargaining agreement. Upon de novo review, the Agency's exception does not demonstrate that the award is deficient.

      Accordingly, this exception is denied.

2.     Management's Rights

      The Authority's framework for resolving exceptions alleging that an award violates management's rights under section 7106 of the Statute is set forth in U.S. Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C. and National Treasury Employees Union, Chapter 201, 53 FLRA 146, 151-54 (1997) (BEP). Under the BEP framework, upon finding that an award affects a management right, the Authority applies a two-prong test. Under prong I of this framework, the Authority examines whether the award provides a remedy for a violation of either applicable law, within the meaning of section 7106(a)(2) of the Statute, or a contract provision that was negotiated pursuant to section 7106(b) of the Statute. Id. at 153. If the award provides such a remedy, the Authority will find that the award satisfies prong I of the framework and will then address prong II.

      Under prong II of the BEP framework, the Authority considers whether the arbitrator's remedy constitutes a reconstruction of what management would have done if management had not violated law or the contractual provision at issue. Id. at 154. If the arbitrator's remedy reflects such a reconstruction, the Authority will find that the award satisfies prong II. An award that fails to satisfy either prong I or prong II will be set aside or remanded to the parties. See U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Depot, Norfolk, Virginia and International Association of Machinists and Aerospace Workers, Local Lodge 97, 54 FLRA 180, 185 (1998); U.S. Department of Veterans Affairs Medical Center, Coatesville, Pennsylvania and National Association of Government Employees, Local R3-35, 53 FLRA 1426, 1431 (1998).

      The Authority has consistently held that proposals or provisions that prescribe the manner in which equally qualified employees will be assigned to shifts constitute procedures under section 7106(b)(2) of the Statute. See, e.g., International Plate Printers, Die Stampers and Engravers Union of North America, AFL-CIO, Local 2 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 25 FLRA 113, 115-16 (1987). Specifically, where the work performed by the employees remains the same regardless of the shift to which they are assigned and the employees are all equally qualified to perform that work, proposals or provisions establishing criteria governing the assignment of individual employees to a shift are within the duty to bargain under section 7106(b)(2). See American Federation of Government Employees, AFL-CIO, Local 987 and U.S. Department of the Air Force, Warner Robins Air Force Logistics Center, Robins Air Force Base, Georgia, 35 FLRA 265, 270 (1990), citing Laborers' International Union of North America, AFL-CIO-CLC, Local 1267 and Defense Logistics Agency, Defense Depot Tracy, Tracy, California, 14 FLRA 686, 687 (1984). Cf. National Treasury Employees Union, Atlanta, Georgia and U.S. Department of the Treasury, Internal Revenue Service, 32 FLRA 879, 883-84 (1988) (proposal precludes agency from rotating employees other than data processing employees into different shifts even if agency determines shifts necessary and will require employees with differing skills and qualifications to meet the work requirements on any particular shift).

      The record indicates that it has been the Agency's practice over a number of years to rotate all of its boiler room operators through the three shifts it uses to run its boiler room. The Agency's adoption and continued implementation of the rotational shift assignment system means that the work performed by those employees is the same, regardless of the shift, and that all the boiler room operators are equally qualified to perform the work required. In particular, in using that system, the Agency clearly has made no relevant job-related distinctions between the boiler room operators with respect to their assignments to a particular shift. Moreover, there is no evidence in the record that Mr. R's handicapping condition has resulted in a change in the work he would perform compared to the other employees, nor has it affected his qualifications to do that work. We conclude, therefore, consistent with Authority precedent, that the Arbitrator's award requiring the Agency to restore the shift rotational system constitutes the enforcement of a procedure under section 7106(b)(2). [ v55 p1196 ] Consequently, we find that prong I of BEP has been established. See U.S. Department of the Air Force, Dover Air Force Base, 436th Air Lift Wing, Dover, Delaware and American Federation of Government Employees, Local 1709, 55 FLRA 935, 938-39 (1999).

      Turning to prong II, it is clear that, by enforcing the Agency's previously existing shift rotation policy, the Arbitrator's award constitutes a reconstruction of what management would have done if it had not violated that policy. Consequently, the award satisfies prong II of the BEP framework. See U.S. Department of the Air Force, Seymour Johnson Air Force Base, North Carolina and National Association of Government Employees, Local R5-188, 55 FLRA 163, 167 (1999) (award reinstating working conditions that would have existed if the Agency had not violated the agreement constitutes a reconstruction satisfying prong II). Upon de novo review, the Agency's exception does not demonstrate that the award is deficient.

      Accordingly, this exception is denied.

VIII.     The Arbitrator's Award is not Deficient on the Ground that it is Contrary to Regulation

A.     Agency's Exception

      The Agency asserts that 29 C.F.R. § 1614.203(c) "states clearly that the Agency is to determine whether or not the accommodation 'would impose an undue hardship on the operations of its programs.'" Exceptions at 4. According to the Agency, the award is based on the Arbitrator's determination that the Agency's accommodation is unreasonable, thereby interfering with the Agency's rights under the regulation.

B.     Analysis and Conclusions

      As noted above, Section VI.B. of this decision, in reviewing arbitration awards for consistency with rule or regulation, the Authority must review the questions of law raised by the Arbitrator's award and the exception de novo. In so doing, the Authority will determine whether the award is inconsistent with the plain wording of, or is otherwise impermissible under, the rule or regulation. U.S. Department of the Treasury, Internal Revenue Service, Ogden Service Center, Ogden, Utah and National Treasury Employees Union, Chapter 67, 42 FLRA 1034, 1056-57 (1991).

      Under 29 C.F.R. § 1614.203(c), an agency is required to make "reasonable accommodation" to the known handicapping conditions of qualified applicants or employees, unless the accommodation would impose an "undue hardship" on the operations of its program. [n7]  In the absence of any argument by the Agency that the regulation imposes more stringent obligations than the Rehabilitation Act, we interpret the requirements of the Act and the regulations as being co-extensive. Although an agency is obligated under the regulation to accommodate an employee's handicapping condition, that obligation is not absolute. See, e.g., Hurley-Bardige v. Brown, 900 F. Supp. 567, 571 (D.C. Mass. 1995) (employers' obligation to accommodate under the Act "is not absolute."). An agency is not required to provide reasonable accommodation where such accommodation is precluded by a collective bargaining agreement. Id. In light of these limitations on the Agency's obligations under the Act and the regulation, the Agency has not shown that the Arbitrator's award requiring it to restore the shift rotation schedule provided by the parties' collective bargaining agreement is inconsistent with the plain language of, or impermissible under, the regulation. See, e.g., Carter, 822 F.2d at 469. Upon de novo review, the Agency's exception does not demonstrate that the award is deficient.

      Accordingly, this exception is denied.

IX.     The Arbitrator's Award is not Deficient on the Ground that it is Inconsistent with Public Policy

A.     Agency's Exception

      The Agency asserts that it is "the public policy of this nation to provide equal opportunity in employment to those with handicaps." [n8]  Exceptions at 7. The Agency also asserts that there are public policy reasons for permitting the accommodation of persons with handicaps to affect other persons. According to the Agency, if an agency had to seek approval of such accommodations from a union, it would make it impossible to employ a handicapped person. The Agency argues that public policy thus provides agencies with the "right to deter- [ v55 p1197 ] mine whether or not to accommodate the handicapped employee." Id. at 8.

      The Agency also maintains that public policy requires the confidentiality of medical records and argues that if unions are to be involved in the determination of whether or not to accommodate handicapped employees, the privacy rights of such employees will be compromised.

      Finally, the Agency disputes the Union's argument that Mr. R knew about his condition and the rotating job schedule before he took the job. According to the Agency, regardless of whether the issue is hiring or job assignments, public policy makes no distinction with respect to discrimination on the basis of handicapping condition.

B.     Analysis and Conclusions

      The Authority will find an arbitration award deficient when the award is contrary to public policy. However, this is an "extremely narrow" exception. U.S. Postal Service v. National Association of Letter Carriers, 810 F.2d 1239, 1241 (D.C. Cir. 1987), cert. dismissed, 485 U.S. 680 (1988). In order to find the award deficient, the public policy in question must be "explicit," "well-defined and dominant." W.R. Grace & Co. v. Local Union 759, International Union of the United Rubber, Cork, Linoleum & Plastic Workers of America, 461 U.S. 757, 766 (1983). In addition, the policy is to be ascertained "by reference to the laws and legal precedents and not from general considerations of supposed public interests." Id.; accord United Paperworkers International Union v. Misco, Inc., 484 U.S. 29, 43 (1987) (Misco). The violation of such a public policy "must be clearly shown" if an award is to be found deficient. Misco, 484 U.S. at 43.

      Contrary to the Agency's argument, "legal precedents" do not support its delineation of the relevant public policy. Specifically, under the Rehabilitation Act, an employer cannot be required to accommodate a handicapped employee by restructuring a job in a manner which would usurp the legitimate rights of other employees in a collective bargaining agreement. Jasany, at 1251-52. See also Daubert, Carter, and Mason. In light of this articulation of public policy, the Arbitrator's award is not deficient on public policy grounds.

      As to the Agency's confidentiality argument, the Agency has not demonstrated that implementation of the Arbitrator's award in this case would require disclosure of Mr. R's medical records. In this respect as well, the Agency fails to demonstrate that the award is deficient because it is contrary to public policy.

      Accordingly, this exception is denied.

X.     Decision

      The Agency's exceptions are denied.


File 1: Authority's Decision in 55 FLRA No. 192
File 2: Opinion of Member Cabaniss


Footnote # 1 for 55 FLRA No. 192 - Authority's Decision

   Member Cabaniss' dissenting opinion is set forth at the end of this decision.


Footnote # 2 for 55 FLRA No. 192 - Authority's Decision

   The Arbitrator cited two non-Federal public sector arbitration awards in support: Clark County Sheriff's Department, 102 LA 193 (Kindig, 1994); City of Dearborn Heights, 101 LA 809 (Kanner, 1993).


Footnote # 3 for 55 FLRA No. 192 - Authority's Decision

   Article IX, Section 3 of the parties' collective bargaining agreement provides, in relevant part, as follows:

3.     Assignments to irregular tours of duty shall be scheduled two weeks in advance covering periods of not less than four weeks. Changes in assignments to tours of duty shall not be arbitrary and shall be executed only in the event of an emergency to provide coverage. Such changes should be rotated equitably among qualified employees . . . .

Footnote # 4 for 55 FLRA No. 192 - Authority's Decision

   The Arbitrator cited Kralik v. Durbin, 130 F.3d 76 (3d Cir. 1997) (Kralik); Foreman v. Babcock & Wilcox Co., 117 F.3d 800 (5th Cir. 1997), cert. denied 118 S. Ct. 1050 (1998) (Foreman); and Eckles v. Consolidated Rail Corp., 94 F.3d 1041 (7th Cir. 1996), cert. denied 520 U.S. 1146 (1997) (Eckles). Each of these cases involves the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and not the Rehabilitation Act. Kralik and Eckles, however, base their analysis under the ADA on the similarity between the ADA and the Rehabilitation Act and cite Rehabilitation Act precedent, e.g., Mason v. Frank, 32 F.3d 315 (8th Cir. 1994) (Mason); Shea v. Tisch, 870 F.2d 786 (1st Cir. 1989) (Shea); Carter v. Tisch, 822 F.2d 465 (4th Cir. 1987) (Carter); Jasany v. United States Postal Service, 755 F.2d 1244 (6th Cir. 1985) (Jasany); Daubert v. United States Postal Service, 733 F.2d 1367 (10th Cir. 1984) (Daubert).


Footnote # 5 for 55 FLRA No. 192 - Authority's Decision

   The Union argues only that the Agency's exceptions were not timely filed. In an order to the parties, the Authority found that the exceptions were timely filed. The Union made no other arguments. Consequently, only the arguments of the Agency are set forth in this decision.


Footnote # 6 for 55 FLRA No. 192 - Authority's Decision

   The rule under the Rehabilitation Act has been applied by other courts to the similar provisions of the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213. See, e.g., Willis v. Pacific Maritime Association, 162 F.3d 561 (9th Cir. 1998); Kralik v. Durbin, 130 F.3d 76 (3rd Cir. 1997); Foreman; Eckles.


Footnote # 7</