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The decision of the Authority follows:
24 FLRA No. 19 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 12 Union and U.S. DEPARTMENT OF LABOR Agency Case No. 0-AR-1070 DECISION I. STATEMENT OF THE CASE This matter is before the Authority on an exception to the award of Arbitrator Robert Bennett Lubic filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. II. BACKGROUND AND ARBITRATOR'S AWARD The grievant was downgraded as the result of a reduction in force (RIF) from the position of secretary/typist, GS-6, in the Women's Bureau to a position of clerk/typist, GS-4, in the Benefits Review Board (BRB). She filed a grievance alleging that she was improperly placed in the BRB position and also that she was unable to work at a video display terminal (VDT) because of eye and medical problems. Subsequently, the grievant experienced further medical problems and was eventually classified as a handicapped employee under the Rehabilitation Act of 1973, 29 U.S.C. Section 701 et seq. During this time she was given other assignments including a reassignment to a GS-4 mail and file clerk position in another office. However, none of the assignments proved satisfactory and the grievant filed additional grievances which were eventually submitted to arbitration. The Arbitrator stated that three issues were before him: (1) whether the Agency discriminated against the grievant on the basis of race; (2) whether the grievant suffered harmful error when the Agency failed to place her on a repromotion list; and (3) whether the Agency accommodated the grievant's handicapped condition. With respect to the first two issues, he found that the Agency did not discriminate against the grievant because of race and that the Agency did not harm the grievant when it failed to place her on a repromotion list at the time of the RIF. No exceptions were filed with regard to these findings. As to the third issue, the Arbitrator agreed with the Union that the Agency failed to accommodate the grievant's handicapped condition as required under the Rehabilitation Act of 1973 and the regulations contained in 29 C.F.R. Section 1613.703, which require Federal agencies to give full consideration to the hiring, placement and advancement of qualified mentally and physically handicapped persons. Furhter, the Arbitrator found that (1) the Agency failed to make reasonable accommodation to the grievant's handicapped condition as required by 29 C.F.R. Section 1613.704 /1/ and (2) the Agency did not show that making a reasonable accommodation for the grievant's condition would create undue hardship. Particularly, the Arbitrator found that the Agency failed to accommodate the grievant's eyesight problem and resultant inability to use a VDT for more than a short time. He concluded that the only possible remedy for the grievant's problem would be the immediate restructuring of a suitable GS-4 position in the BRB and held that such a restructuring would not cause undue hardship in an organization the size of the BRB, especially at the GS-4 level. As his award he ordered the Agency to offer the grievant within 30 days a restructured GS-4 clerical position at the BRB "without use of any VDT equipment and with the PD therefore containing reasonable elements and standards." III. AGENCY EXCEPTION The Agency alleges that the Arbitrator's award is contrary to law because it requires the Agency to reassign the grievant to a specifically restructured position and violates management's right to assign work and to assign employees under section 7106(a)(2) of the Statute. The Agency contends that the award effectively requires management to establish a new clerical position which does not require use of a VDT and to place the grievant in the position. The Agency contends that the award is contrary to the Rehabilitation Act of 1973 and implementing regulations which only require that a handicapped employee be accommodated to the extent such accommodation does not create an undue hardship for the Agency and does not require reassignment to another position. IV. ANALYSIS AND CONCLUSION We conclude that the Agency's exception should be denied for the following reasons. The Authority has consistently held that proposals and agreement provisions which interfere with management's right to assign employees and to assign work under section 7106(a)(2)(A) and (B) are outside the duty to bargain and not enforceable by arbitrators. National Treasury Employees Union, Chapter 26 and Internal Revenue Service, Atlanta District, 22 FLRA No. 30 (1986) (Proposal 5); Southwestern Power Administration and International Brotherhood of Electrical Workers, Local 1002, 22 FLRA No. 48 (1986). Proposals providing that work assignments will be altered or tailored to accommodate employees who are temporarily unable to perform their regularly assigned duties because of illness or injury have been held to be nonnegotiable. National Federation of Federal Employees, Local 1624 and Air Force Contract Management Division, Hagerstown, Maryland, 3 FLRA 142 (1980); National Federation of Federal Employees, Local 943 and Department of the Air Force, Headquarters Keesler Technical Training Center, Keesler Air Force Base, Mississippi, 19 FLRA No. 113 (1985) (Proposal 2). However, the Authority has not had occasion to consider to what extent, if any, management's right to assign work and employees under section 7106(a)(2)(A) and (B) is affected by the requirements of the Rehabilitation Act of 1973 and its implementing regulations under which handicapped employees are entitled to reasonable accommodation unless the agency can demonstrate that the "accommodation would impose an undue hardship on the operation" of its program (29 C.F.R. Section 1613.704(c)). The rights to be accorded handicapped employees, including the effect of certain other Federal laws and the extent of any reasonable accommodation has been addressed in several cases. In the first case certified to the Special Panel under 5 U.S.C. Section 7702, /2/ the Panel resolved a conflict between the Equal Employment Opportunity Commission (EEOC) and the Merit Systems Protection Board (MSPB) over the interpretation of certain civil service directives. EEOC must be considered as a possible means of reasonable accommodation for handicapped employees. MSPB maintained that reassignment need not be considered as a means of reasonable accommodation since assignment constitutes an area of agency discretion under civil service law. The Panel concluded that the EEOC did not misapply the civil service directives and held there was nothing unreasonable in the EEOC's decision that reassignment is within the scope of reasonable accommodation under the Rehabilitation Act. Ignacio v. U.S. Postal Service, Special Panel No. 1, February 27, 1986, 86 FMSR 7026. In a later decision, the Special Panel stated that an "appallant may not force consideration of reassignment ad infinitum" where there are no vacant positions available. Lynch v. Department of Education, Special Panel, August 20, 1986, Docket No. DC07528210746; DC531D8211379. The Panel reiterated that its decision in Ignacio only requires that reassignment be considered as a reasonable accommodation and does not require an agency to create a position where none exists. Lynch, note 10. In a court case involving a discharged postal worker who claimed that he was not accorded reasonable accommodation for his handicapped condition, a district court held that the regulations implementing the Rehabilitation Act do not enumerate reassignment as a required accommodation and noted that there are no cases which hold that reassignment is required, including Ignacio. Carty v. Carlin, 623 F. Supp. 1181, 1185 (D.Md. 1985). The Court concluded that the duty to reasonably accommodate only contemplates accommodation of a qualified handicapped employee's present position and does not include a requirement to transfer or reassign an employee to another position. With regard to an agency's duty under the Rehabilitation Act to accommodate a handicapped employee by restructuring the employee's position, the Sixth Circuit has held that the agency is not required to eliminate the essential functions of the employee's job or to restructure the job in a manner which would usurp the legitimate rights of other employees in a collective bargaining agreement. Jasany v. U.S. Postal Service, 755 F.2d 1244, 1250 (6th Cir. 1985). The Court held that the appellant was not a handicapped person within the meaning of the Rehabilitation Act and therefore failed to establish a prima facie case of handicap discrimination. However, the Court held that even if the employee were handicapped the Postal Service was not required to accommodate him by eliminating one of the essential functions of his job which was the operation of a certain mail sorting machine. The Court rejected the employee's contention that he could have been reassigned to the related job of "allied man" on the machine and noted that nothing in the record pertained to the existence of such a position and that the suggestion "confuses accommodation with elimination of an essential function." Jasany at 1251. In the circumstances of this case, the grievant was certified as a qualified handicapped employee by the Agency. As such, she was entitled to "reasonable accommodation" which under 29 C.F.R. Section 1613.704(b) includes "job restructuring" among other possibilities. The Arbitrator determined that the Agency failed to meet its obligation to provide reasonable accommodation to the grievant and found that the grievant could be assigned to a restructured GS-4 position not requiring use of a VDT without imposing undue hardship on the operation of the Agency. The Authority finds that the Arbitrator's award reflects a proper interpretation of the provisions of the Rehabilitation Act of 1973 and 29 C.F.R. Section 1613.704 consistent with the interpretations made by the Special Panel and the courts. The Agency did not demonstrate to the Arbitrator and has not demonstrated in its arguments before the Authority that the assignment of the grievant to a restructured GS-4 position which does not require the use of a VDT terminal would cause it undue hardship. Neither does the Agency show that the operation of a VDT is such an essential function of the grievant's clerical position that it could not be eliminated and replaced by other appropriate duties within the position. The award simply requires restructuring of the grievant's present position, not reassignment, and is consistent with law. Further, consistent with the case law discussed above, the Authority finds that nothing in the Statute or its legislative history reflects any intent to supersede the provisions of the Rehabilitation Act of 1973 and its implementing regulations pertinent here. Consequently, there is no basis for the Agency's exception that the Arbitrator's award is contrary to 5 U.S.C. Section 7106(a)(2)(A) and (B) and to the Rehabilitation Act of 1973. V. DECISION Accordingly, for the above reasons, the Agency's exception is denied. Issued, Washington, D.C., November 21, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) 29 C.F.R. Section 1613.704 pertinently provides: (a) An agency shall make reasonable accommodation to the known physical or mental limitations of a qualified handicapped applicant or employee unless the agency can demonstrate that the accommodation would impose an undue hardship on the operation of its program. (b) Reasonable accommodation may include, but shall not be limited to: (1) Making facilities readily accessible to and usable by handicapped persons, and (2) job restructuring, part-time or modified work schedules, acquisition or modification of equipment or devices, appropriate adjustment or modification of examinations, the provision of readers and interpreters, and other similar actions. (c) In determining pursuant to paragraph (a) of this section whether an accommodation would impose an undue hardship on the operation of the agency in question, factors to be considered include: (1) The overall size of the agency's program with respect to the number of employees, number and type of facilities and size of budget; (2) the type of agency operation, including the composition and structure of the agency's work force; and (3) the nature and the cost of the accommodation. (2) The Special Panel was created by the Civil Service Reform Act of 1978 for the purpose of resolving disputes between the MSPB and the EEOC concerning cases with mixed civil service law and discrimination law issues that have been originally appealed to the MSPB. The Panel's jurisdiction in such matters is set out in 5 U.S.C. Section 7702.