United States Department of the Treasury, Internal Revenue Service, Andover, Massachusetts (Agency) and National Treasury Employees Union, Chapter 68 (Union)

[ v63 p202 ]

63 FLRA No. 79

UNITED STATES
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
ANDOVER, MASSACHUSETTS
(Agency)

and

NATIONAL TREASURY
EMPLOYEES UNION
CHAPTER 68
(Union)

0-AR-4077

_____

DECISION

April 7, 2009

_____

Before the Authority: Carol Waller Pope, Chairman and
Thomas M. Beck, Member

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Arnold M. Zack 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 exceptions.

      The Arbitrator determined that the Agency had discriminated against the grievant on the basis of his disability by failing to provide a sign language interpreter for certain meetings. We dismiss the Agency's management rights exception as barred by § 2429.5 of the Authority's Regulations. We deny the Agency's remaining exceptions.

II.      Background and Arbitrator's Award

      The grievant is a hearing-impaired, seasonal employee. Seasonal employees are subject to furlough when there is not enough work and are offered overtime when there is an overflow of work. As found by the Arbitrator, management called frequent group meetings involving "discussions of work performance tied to the ebb and flow of work volume, and the resultant need to layoff employees or to schedule overtime hours." Award at 5.

      [ v63 p203 ] The Arbitrator noted that the Agency employed a sign language interpreter who originally had worked full-time, but prior to the time in dispute had opted to work a part-time schedule of two days per week. The Arbitrator further noted that because of the number of hearing-impaired employees, the use of the in-house interpreter or an interpreter from outside the Agency was required to be scheduled 2 weeks in advance. Id. at 1-2.

      The grievant filed grievances claiming that he was not provided a reasonable accommodation for seven group meetings when the Agency failed to provide a sign language interpreter. Id. at 2. As a remedy, the grievant requested, among other things, that the Agency provide an interpreter for all group meetings that hearing-impaired employees attend and that the Agency provide additional interpreter hours and services. Arbitration Record, Joint Ex. 3. The grievances were not resolved and were submitted to arbitration, where the parties agreed on the issue to be decided as follows:

Did the [Agency] violate the parties' agreement by its failure to provide reasonable accommodations to [the grievant] at group meetings? If so, what shall be the remedy?

Award at 1.

      Before the Arbitrator, the Union maintained that the grievant is a qualified handicapped employee and that the Agency had a legal obligation to reasonably accommodate him by providing a sign language interpreter for group meetings. Relying on case law of the Equal Employment Opportunity Commission (EEOC), the Union further argued that the Agency could not avoid its obligation to provide a sign language interpreter by providing the grievant with meeting notes taken by the grievant's supervisor. Union's Post-hearing Brief at 16-17 (citing Taylor v. Norton, EEOC Appeal No. 01A34292 (May 3, 2004)). As to the issue of appropriate remedy, the Union maintained that the Arbitrator should address the Agency's continued practice of failing to provide sufficient coverage of interpreters during workplace meetings where a hearing-impaired employee is present. Id. at 19.

      Also before the Arbitrator, the Agency asserted that it had reasonably accommodated the grievant. The Agency claimed that the disputed group meetings were called on an "emergency impromptu basis[,]" Award at 4, that the grievant's supervisor unsuccessfully had tried to secure the services of a sign language interpreter, and that the supervisor provided a reasonable substitute for an interpreter by providing written notes of the meetings, as they proceeded, including questions and answers. Id. The Agency also claimed that when its full-time, sign language interpreter opted to work part time, it tried without success to replace her with a full-time interpreter. Id. The Agency further asserted that the requested accommodation would have caused the Agency an undue hardship because it would have had to postpone the meetings until it obtained an interpreter. Id.

      The Arbitrator found that, as to six of the seven disputed group meetings, [n1]  the Agency violated Article 4, Section 2A4 of the agreement [n2]  by discriminating against the grievant on the basis of a handicapping condition as prohibited by the Rehabilitation Act. Id. at 6. He noted that the disputed meetings involved group discussions of work performance and that the grievant's attendance at the meetings was an essential and integral part of the grievant's work. Id. at 5-6. The Arbitrator found that, without a sign language interpreter, the grievant was deprived of access to much of the content of the meetings and that the grievant could not be reasonably aware of questions raised from the floor or conversations and comments made by participants. Id. He further found that the written notes of the meeting supplied by the grievant's supervisor failed to meet the Agency's obligations under both the Rehabilitation Act and the agreement. Id.

      The Arbitrator concluded that, by failing to provide a full-time, sign language interpreter, the Agency deprived the grievant of equal access to information provided during the disputed meetings and discriminated against the grievant on the basis of his handicapped condition in violation of the parties' agreement. Id. As a remedy, the Arbitrator ordered the Agency to make a sign language interpreter available during normal working hours. In so ordering, the Arbitrator rejected the Agency's assertion that it had sought unsuccessfully to secure the services of additional interpreters. Id. [ v63 p204 ]

III.      Positions of the Parties

A.      Agency's Exceptions

      The Agency excepts to the award on three grounds: (1) the award is based on a nonfact; (2) the award is contrary to the Rehabilitation Act; and (3) the Arbitrator exceeded his authority.

      In contending that the award is based on a nonfact, the Agency maintains that the Arbitrator's findings that there was no evidence to support the Agency's claims that it sought to secure the services of additional sign language interpreters and that such additional support was unavailable are nonfacts. The Agency asserts that it provided unrefuted testimony that it attempted to secure the services of additional sign language interpreters. The Agency maintains that the award is deficient because these findings are central facts underlying the Arbitrator's award.

      In contending that the award is contrary to the Rehabilitation Act, the Agency asserts that the Arbitrator ignored applicable case law of the EEOC. Exceptions at 10 (citing Mueller v. United States Postal Serv., EEOC Appeal No. 01A41696 (June 28, 2005) (Mueller), and McNeil v. United States Postal Serv., EEOC Appeal No. 01A40468 (May 13, 2005) (McNeil)). The Agency notes that, in both Mueller and McNeil, the EEOC held that the employer did not fail to reasonably accommodate its hearing-impaired employees when it did not provide sign language interpreters at meetings because: (1) the meetings were called at the last minute; (2) the employer made good-faith attempts to secure the services of a sign language interpreter; and (3) the information conveyed in the meetings was subsequently conveyed to the hearing-impaired employees in an alternative written format. The Agency argues that the same three factors present in Mueller and McNeil are also present here. In addition, the Agency maintains that although "it is hard to imagine that the emergency meetings in McNeil and Mueller did not contain such side bar exchanges and questions[,] . . . the EEOC held that under the facts and circumstances of those cases, the [agency] did not violate the Rehabilitation Act." Id. at 13. The Agency also maintains that it would have been an undue hardship, under 29 C.F.R. § 1630.9(a), for it to have postponed the meetings to obtain an interpreter.

      In contending that the Arbitrator exceeded his authority, the Agency argues that the Arbitrator's remedy is deficient because it provides relief to employees in addition to the grievant. Id. at 15 (citing Gen. Serv. Admin., Region VII, Fort Worth, Tex., 35 FLRA 1259 (1990) (GSA), and United States Army Academy of Health Sciences, Fort Sam Houston, Tex., 34 FLRA 598 (1990) (Academy of Health Sciences)). The Agency also argues that the Arbitrator's remedy exceeded his authority because the order affects management rights under § 7106(a)(2)(A) of the Statute. [n3]  The Agency claims that, to comply with the award, it would be required to hire another sign language interpreter.

B.      Union's Opposition

      With respect to the nonfact exception, the Union argues that the factual question of whether the Agency made good-faith attempts to secure a sign language interpreter was disputed below. According to the Union, the Arbitrator weighed conflicting evidence and testimony as to whether the Agency had attempted to secure alternative services for a sign language interpreter.

      With respect to the Agency's contention that the award is contrary to the Rehabilitation Act, the Union asserts that the Agency's position is directly contrary to the position of the EEOC in Kelly v. United States Postal Serv., EEOC Appeal No. 01A42499 (Aug. 30, 2004) (Kelly), where the EEOC concluded that the agency's failure to provide a sign language interpreted constituted a failure to accommodate a hearing-impaired employee. The Union claims that Mueller and McNeil are exceptions to Kelly and are distinguishable. The Union maintains that the result in McNeil was based on a single instance of an interpreter not being provided for a meeting of great exigency and that both Mueller and McNeil were based on the good-faith efforts of the employers to procure the services of an interpreter. The Union argues that, in this case, in contrast, many of the meetings were consistently called at 10-day intervals, and the Arbitrator found no efforts by the Agency to provide an interpreter for these recurring meetings.

      In contending that the Arbitrator did not exceed his authority, the Union asserts that the remedy was crafted solely for the grievant. The Union notes that no other employee was identified by the Arbitrator. In addition, the Union argues that the remedy awarded by the Arbitrator follows the relief typically ordered by the EEOC and that the remedy does not affect any management right under § 7106(a)(2)(A) because the Arbitrator did not prescribe how the remedy was to be implemented. [ v63 p205 ]

IV.      Analysis and Conclusions

A.      The Agency's management rights exception is barred by § 2429.5 of the Authority's Regulations.

      Under § 2429.5 of the Authority's Regulations, the Authority will not consider issues that could have been, but were not, raised or presented to the arbitrator. E.g., United States Dep't of Homeland Sec., United States Customs & Border Protection, JFK Airport, Queens, N.Y., 62 FLRA 416, 417 (2008) (CBP). In its exceptions, the Agency argues that the Arbitrator's order to make a sign language interpreter available on a full-time basis is deficient because it affects management right under § 7106(a)(2)(A) of the Statute to hire employees. The Agency claims that, in order to comply with the award, it would be required to hire another sign language interpreter.

      Beginning with the filing of the grievance, the grievant and the Union requested specifically that the Agency provide sign language interpreters at all group meetings that hearing-impaired employees attend and generally that the Agency provide additional sign language interpreter hours and services. Arbitration Record, Joint Ex. 3; Union's Post-hearing Brief at 19. There is no indication in the record that, in response to these requested remedies, the Agency raised the issue of the effect of the remedies on management's rights.

      The Arbitrator's specific order that the Agency make a sign language interpreter available during normal working hours raises the same substantive issues as those presented by the Union's requested remedy that the Agency provide additional sign language interpreter hours and services, in addition to providing sign language interpreters at all group meetings which hearing-impaired employees attend. Compare IBEW Gov't Coordinating Council No. 1, 57 FLRA 7, 8-9 (2001) (party could not be fairly charged with anticipating the arbitrator's reliance on a matter not in dispute). Therefore, as the issue concerning management rights could have been, but was not, raised or presented to the Arbitrator, the issue is not properly before the Authority. See CBP, 62 FLRA at 417. Based on the foregoing, we dismiss this exception. See id.

B.      The award is not based on a nonfact.

      To establish that an award is based on a nonfact, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. E.g., NFFE Local 1984, 56 FLRA 38, 41 (2000). The Authority will not find an award deficient on the basis of an arbitrator's determination of any factual matter that the parties disputed at arbitration. Id.

      The Agency contends that the Arbitrator's findings that it did not attempt to secure the services of additional sign language interpreters and that there was no evidence that such interpreters were unavailable are nonfacts. However, the Union specifically disputed before the Arbitrator the Agency's assertions that it had attempted to secure the services of sign language interpreters for the disputed meetings. E.g., Union's Post-hearing Brief at 6-8, 18. Consequently, the Agency's exception provides no basis for finding the award deficient as based on a nonfact. NFFE Local 1984, 56 FLRA at 41. Accordingly, we deny this exception.

C.      The award is not contrary to the Rehabilitation Act.

      When an exception involves an award's consistency with law, the Authority reviews any question of law raised by the exception and the award de novo. E.g., NTEU Chapter 24, 50 FLRA 330, 332 (1995). In applying the standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law. United States Dep't of Def., Dep'ts of the Army and the Air Force, Ala. Nat'l Guard, Northport, Ala., 55 FLRA 37, 40 (1998) (Ala. Nat'l Guard). In making this assessment, the Authority defers to the arbitrator's underlying factual findings. Id. More specifically, in resolving whether an award is contrary to the Rehabilitation Act, the Authority applies the standards of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12300. In this regard, Congress has specifically adopted the standards of the ADA for determining whether there has been disability discrimination in violation of the Rehabilitation Act. 29 U.S.C. § 791(g); Office of Personnel Management, 61 FLRA 358, 361 (2005).

      Under the ADA and EEOC regulations, an agency must make reasonable accommodation to the known limitations of an otherwise qualified individual with a disability unless the agency can show that the accommodation would cause an undue hardship. 29 C.F.R. § 1630.9(a); United States Dep't of Justice, Immigration & Naturalization Serv., 57 FLRA 254, 255 (2001). A reasonable accommodation is a modification or an adjustment that enables an individual with a disability to enjoy equal benefits and privileges of employment as are enjoyed by other similarly situated employees without disabilities. § 1630.2(o)(iii). To be entitled to a reasonable accommodation, employees must first establish that they are a "qualified individual with a disability" [ v63 p206 ] within the meaning of the Rehabilitation Act. § 1630.4; § 1630.2(m).

      In numerous cases, the EEOC has assessed whether an agency has met its obligation to reasonably accommodate its hearing-impaired employees. In Jackson v. United States Postal Serv., EEOC Request No. 05880750 (April 18, 1989) (Jackson), the EEOC specified the following accommodation for hearing-impaired employees during work-related activities where they are expected to be present:

[F]or a severely hearing impaired employee who can sign, reasonable accommodation, at a minimum, requires providing an interpreter for safety talks, discussions on work procedures, policies, or assignments, and for every disciplinary action so that the employee can understand what is occurring at any and every crucial time in his [her] employment career, whether or not [s]he asks for an interpreter.

      Jackson, 89 FEOR 3176 at 6. Since Jackson, the EEOC has found in numerous cases that agencies failed to reasonably accommodate their hearing-impaired employees by failing to provide interpreters. E.g., Gunn v. United States Postal Serv., EEOC Appeal No. 0120053293 (June 15, 2007); Kelly; Feris v. Environmental Protection Agency, EEOC Appeal No. 01934828 (Aug. 10, 1995) (Feris). Moreover, as relevant here, the EEOC concluded in Feris that "the availability of an interpreter on a short notice is necessary if the employee is expected to fully participate in daily work related activities." Feris, decision at 53. The EEOC has also concluded that an agency cannot escape its obligation to provide interpreters for work-related meetings simply because of difficulty scheduling interpreter services in a timely manner. E.g., Haggard v. United States Postal Serv., EEOC Appeal Nos. 01A12221 and 01A21876 (Jan. 7, 2003), decision at 6; accord Kelly, decision at 6. Likewise, agencies cannot satisfy their obligations merely through "good faith efforts" at accommodation. Feris, decision at 45.

      In this case, the grievant is hearing impaired and uses sign language for communication. It is not disputed that he is a qualified individual with a disability under the Rehabilitation Act. It also is not contested in this case that the disputed meetings concerned work procedures, policies, and assignments. Nevertheless, the Agency argues that the Arbitrator's award is deficient because Mueller and McNeil control in the circumstances of this case.

      Both Mueller and McNeil involved "emergency" meetings. Mueller, decision at 1; McNeil, decision at 5. In particular, both involved events that occurred "unexpectedly" and, as a result, management's good-faith efforts to contact a certified interpreter were unsuccessful. Mueller, decision at 6; McNeil, decision at 5. In Mueller, after the agency was unsuccessful in obtaining an interpreter, the agency accommodated its hearing-impaired employees by using employees with some sign language skills, by having the information of the meeting conveyed to the hearing-impaired employees by their managers, and by presenting and reviewing at the next group meeting every point that was presented in the disputed meeting. Mueller, decision at 7-8. In McNeil, the agency similarly accommodated its hearing-impaired employees by subsequently providing them with a written report of what occurred at the meeting and by reviewing the meeting at the next group meeting. McNeil, decision at 5-6. In concluding that the agencies reasonably accommodated hearing-impaired employees in both Mueller and McNeil, the EEOC distinguished Kelly on the ground that, in Kelly, the agency failed to make any alternative attempt to relay the necessary information to its hearing-impaired employees. Mueller, decision at 8 n.1; McNeil, decision at 6-7.

      Unlike the meetings in Mueller and McNeil, the disputed meetings in this case were not "emergency" meetings, and did not result from events that occurred "unexpectedly[.]" Mueller, decision at 6; McNeil, decision at 5. As found by the Arbitrator, these meetings were regularly called on a frequent basis. Award at 5. Also, unlike Mueller and McNeil, the Arbitrator found that the Agency here did not make any good-faith efforts to secure the services of an interpreter. Id. at 6. Consistent with our denial of the Agency's nonfact exception to this finding, the finding further distinguishes this case from Mueller and McNeil. See Ala. Nat'l Guard, 55 FLRA at 40 (in assessing arbitrator's legal conclusions, the Authority defers to the arbitrator's underlying factual findings).

      In addition, the written notes provided by the grievant's supervisor in this case are distinguishable from the accommodations provided in Mueller and McNeil. Here, the Arbitrator determined that the supervisor's notes were ineffective and that the grievant "was forced to rely on the jottings of his supervisor as to what she filtered from the exchanges, and questions as worthy of his notice." Award at 6. The Agency disputes the Arbitrator's concern with such exchanges and questions, arguing that "it is hard to imagine that the emergency meetings in McNeil and Mueller did not contain such side bar exchanges and questions." Exceptions at 13. [ v63 p207 ] However, the EEOC has specifically found ineffective accommodations similar to what the Agency provided. See Bratsch v. United States Postal Serv., Appeal No. 01A40695 (Sep. 15, 2006) (written transcripts of work-related meetings not a reasonable accommodation because the transcripts did not provide opportunity to ask questions and participate in discussions); Taylor (providing a note taker not a reasonable accommodation because note taking did not allow employee meaningful participation in the training and resulted in isolation and inability to understand what was happening). Further, the EEOC has found that recurring work-related meetings obligate an agency "under the Rehabilitation Act to secure reliable interpretive services on an ongoing basis." Ortiz v. United States Postal Serv., EEOC Appeal No. 01973231 (Oct. 16, 1998), decision at 12. In so doing, the EEOC emphasized that "selective written summaries or ineffective or unreliable interpretive services will not suffice to satisfy [the] obligation" to provide "effective interpreter services during work-related activities . . . so that hearing[-]impaired employees can understand what is going on at any time." Id.

      Based on the foregoing, we conclude that the Agency was obligated to provide a sign language interpreter for the grievant at the disputed meetings unless doing so would have caused an undue hardship. To establish undue hardship, the Agency must show that providing an interpreter "would be unduly costly, extensive, substantial or disruptive or that it would fundamentally alter the nature of the agency's operation." Yost v. United States Postal Serv., EEOC Appeal No. 01A51457 (June 13, 2006) (Yost), decision at 19 (citing § 1630.2(p)). Further, "[c]laims of undue hardship must be based on an individualized assessment of current circumstances that show providing an interpreter . . . would cause a significant difficulty or expense to the agency." Id. at 19-20 (citing EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Oct. 17, 2002), part 1630, App. A)).

      The Agency asserts undue hardship based solely on the argument that postponing the meeting until a sign language interpreter was provided "would have altered the nature of the Agency's operations since it would require the Agency to keep on staff excess employees during periods of shortage of work and/or not have enough employees to work overtime during an overflow of work." Exceptions at 14. This summary assertion, which is not supported by any evidence, does not demonstrate an individualized assessment of the grievant's circumstances showing that providing an interpreter would cause a significant difficulty or expense to the Agency. Consequently, the Agency fails to establish that undue hardship. See Yost, decision at 19.

      Based on the foregoing, we deny this exception.

D.      The Arbitrator did not exceed 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. AFGE Local 1617, 51 FLRA 1645, 1647 (1996). More specifically, arbitrators exceed their authority in connection with a remedy when they award relief to persons who did not file a grievance on their own behalf or who did not have the union file a grievance for them. United States Dep't of the Air Force, Okla. City Air Logistics Ctr., Tinker Air Force Base, Okla., 42 FLRA 680, 685 (1991).

      The Arbitrator specifically found that, by failing to provide a sign language interpreter, the Agency deprived the grievant of equal access to information communicated during the disputed meetings and discriminated against the grievant on the basis of his handicapped condition. To remedy this discrimination, the Arbitrator ordered the Agency to make a sign language interpreter available during normal working hours.

      Nothing in the Arbitrator's remedy references or encompasses anyone but the grievant. I