24:0139(19)AR - AFGE Local 12 and DOL -- 1986 FLRAdec AR

[ v24 p139 ]
The decision of the Authority follows:

 24 FLRA No. 19
                                            Case No. 0-AR-1070
                         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.
    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
    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