U.S. Department of Justice, Immigration and Naturalization Service (Agency) and American Federation of Government Employees, Immigration and Naturalization Service Council (Union)

[ v57 p254 ]

57 FLRA No. 51

U.S. DEPARTMENT OF JUSTICE, IMMIGRATION
AND NATURALIZATION SERVICE
(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, IMMIGRATION AND
NATURALIZATION SERVICE COUNCIL
(Union)

0-AR-3388

____

DECISION

June 7, 2001

_____

Before the Authority: Dale Cabaniss, Chairman; Donald S. Wasserman and Carol Waller Pope, Members

Decision by Member Pope for the Authority

I.     Statement of the Case

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

      The Arbitrator sustained in part a grievance alleging, as relevant here, that the Agency discriminated against certain immigration inspectors when it terminated and/or placed them in an inactive duty status for failing to complete firearms training. For the reasons that follow, we deny the Agency's exception.

II.     Background and Arbitrator's Award

      The Agency unilaterally created four categories of immigration inspectors who lacked firearms training, and based on the category to which an inspector was designated, the inspector was either placed in an inactive duty status or terminated. The Union filed a grievance alleging, among other things, that the Agency discriminated against inspectors who were refused access to firearms training or were unable to complete the training because of age or a physical condition. The grievance was unresolved and submitted to arbitration, where, as relevant here, the Arbitrator framed the issue as [w]hether the Agency discriminated against [inspectors] on the basis of age or handicap? Award at 3. In resolving this issue, the Arbitrator stated that the relevant inquiry was whether the Agency was obligated in some fashion to insure the necessary training was available to all [inspectors] regardless of any `handicapping' conditions or their age. Id. at 39.

      As an initial matter, the Arbitrator found that the Agency did not discriminate against inspectors on the basis of age. The Arbitrator found, however, that the evidence demonstrated that the Agency had denied training or removed inspectors from training because an inspector was `regarded as' having a handicapping condition, and that the Agency failed to discern the nature of those inspectors' physical problems and explore ways in which to accommodate those problems for the purpose of completing training. Id. at 40. The Arbitrator concluded that the Union . . . presented a valid argument with respect to the failure of the Agency to satisfy its [Americans with Disabilities Act (ADA)] obligations. Id. at 42.

      The Arbitrator found that the record was insufficient to order a remedy, and directed the parties to develop further information regarding the issue of whether particular inspectors were entitled to a reasonable accommodation. Specifically, the Arbitrator directed the Union to provide the Agency with the names of those inspectors it believes are entitled to consideration under the ADA, and the Agency to consider those inspectors on a case-by-case basis to determine whether a reasonable accommodation could be provided. The Arbitrator further directed that, if the Agency finds an inspector to be able to complete the training with a reasonable accommodation, then the Agency must provide that training unless the Agency demonstrates that doing so would be unduly burdensome. The Arbitrator retained jurisdiction to resolve any disputes between the parties over the remedy.

III.     Positions of the Parties

A.     Agency's Exception

      The Agency asserts that the Arbitrator's conclusion regarding reasonable accommodation is contrary to the ADA. According to the Agency, the Arbitrator concluded that certain inspectors were entitled to a reasonable accommodation, but failed to make the requisite finding that any of those inspectors were actually disabled. [ v57 p255 ]

B.     Union's Opposition

      The Union agrees with the Agency that an individual who is merely regarded as having a disability is not entitled to a reasonable accommodation. According to the Union, the Arbitrator merely ordered the parties to meet and identify those inspectors, if any, that may be entitled to such an accommodation.

IV.     The award is not contrary to law

      The Authority reviews the questions of law raised by the award and the Agency's exception de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, the Authority assesses whether the Arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). The Agency asserts that the award is contrary to the ADA. However, because the ADA is not applicable to Federal employees, and because the standards of the ADA have been incorporated into the Rehabilitation Act, 29 U.S.C. § 791, we construe this argument as a claim that the award is contrary to the Rehabilitation Act. See United States Dep't of the Air Force, Headquarters Okla. City Air Logistics Ctr., Tinker AFB, Okla., 40 FLRA 214, 219 (1991).

      The Rehabilitation Act prohibits Federal agencies from discriminating against qualified handicapped employees and imposes a duty to make reasonable accommodations for such employees unless an agency can show that to do so would impose undue hardship on its operations. See United States Dep't of the Army, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, N.C., 42 FLRA 1186, 1192 (1991) (citing Rodgers v. Lehman, 869 F.2d 253, 258 (4th Cir. 1989)). An employee is not entitled to a reasonable accommodation unless that employee qualifies as a handicapped person under the Rehabilitation Act. Id.

      Contrary to the Agency's claim, the Arbitrator did not order the Agency to provide any particular inspectors with a reasonable accommodation. Under the award, the Agency is required only to consider whether those inspectors identified by the Union could be entitled to a reasonable accommodation, and if so, to provide such an accommodation. The Agency is free to find that any inspector identified by the Union is not a handicapped person entitled to a reasonable accommodation. Any dispute over whether a particular inspector was entitled to a reasonable accommodation would be submitted to the Arbitrator under his retained jurisdiction, who could then make a determination as to whether that inspector qualifies as a handicapped person under law who is entitled to an accommodation.