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50:0069(13)AR - - AFGE, Local 2921 & Army & Air Force Exchange Service, Dallas, TX - - 1994 FLRAdec AR - - v50 p69

[ v50 p69 ]
The decision of the Authority follows:

50 FLRA No. 13





LOCAL 2921










December 21, 1994


Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Michael D. Gordon filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency did not file an opposition to the Union's exceptions.

The Arbitrator denied a grievance alleging that the grievant was improperly denied a transfer to another unit as an accommodation for a handicapping condition. The Arbitrator concluded that the Agency's actions were not inconsistent with the collective bargaining agreement or any law.

For the following reasons, we find that the Union has not established that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the Union's exceptions.

II. Background and Arbitrator's Award

The grievant, a computer programmer, filed a grievance alleging that the Agency's denials of her requests to transfer from one unit to another unit as an accommodation for her handicapping condition violated the parties' collective bargaining agreement and provisions of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. (1988) (Rehabilitation Act). As relevant here, the grievance was submitted to arbitration on the following issue, as framed by the Arbitrator:

Whether the Agency's refusal to transfer [g]rievant violates an enforceable right under Article 13 of the Agreement?

Award at 2.(1)

The Arbitrator found that the Agency's refusal to transfer the grievant did not violate Article 13 because that article concerned "'affirmative action programs', not individual claims[.]" Id. at 24. The Arbitrator also found that, even if the article applied, the standards incorporated in it were both "not instructive" and "highly subjective[.]" Id. The Arbitrator concluded that, "to the extent [the] [g]rievant has any enforceable right . . . it arises under the Rehabilitation Act which has been incorporated into the [a]greement by Article 3, § 1." Id. at 25 (footnote omitted).(2)

The Arbitrator determined that the Agency did not violate the Rehabilitation Act because, even if the grievant could establish that accommodation was required, the Agency "properly accommodated her needs within the options and information available to it." Id. at 27. In this regard, the Arbitrator found that the Agency "attempted to accommodate [the] [g]rievant in her existing classification and, then, to reassign her to another classification." Id. at 30. The Arbitrator further found that the record contained no evidence that there were any appropriate vacancies outside the grievant's unit and that, therefore, the Agency's offers to transfer the grievant to several lower-paying jobs within her unit satisfied its obligations under 29 C.F.R. § 1614.203(g).(3) Accordingly, the Arbitrator denied the grievance.

III. Exceptions

The Union contends that the award does not draw its essence from the parties' agreement because the award disregards the mandate in Article 13 that "acts of discrimination [] be 'aggressively' resolved to insure a workplace free from illegal activity . . . ." Exceptions at 6. The Union also contends that the award conflicts with the Rehabilitation Act.

IV. Analysis and Conclusions

We reject the Union's assertion that the award does not draw its essence from the collective bargaining agreement because the Arbitrator disregarded Article 13's mandate that acts of discrimination be aggressively resolved. To demonstrate that an award is deficient on this ground, the party making the allegation must show 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 the purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See, for example, American Federation of Government Employees, AFL-CIO, Local 2608 and U.S. Department of Health and Human Services, Social Security Administration, New York Region 2, San Juan Teleservice Center, 49 FLRA 1589, 1593 (1994) (San Juan Teleservice Center). Here, the Arbitrator found that Article 13 was not applicable to the grievance because it concerned "'affirmative action programs', not individual claims[.]" Award at 24. The Union's assertion to the contrary does not demonstrate that the award is deficient under any of the aforementioned tests. Accordingly, the exception provides no basis for finding that the award fails to draw its essence from the parties' agreement. See, for example, San Juan Teleservice Center, 49 FLRA at 1594.

The Rehabilitation Act prohibits Federal agencies from discriminating against qualified handicapped employees and imposes a duty to make reasonable accommodations to the limitations of those employees unless an agency can show that to do so would impose undue hardship on its operations. See U.S. Department of the Army, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina and American Federation of Government Employees, Local 1770, 42 FLRA 1186, 1192 (1991) (citing Rodgers v. Lehman, 869 F.2d 253, 258 (4th Cir. 1989)). Here, the Arbitrator determined that the Agency's attempts to accommodate the grievant by reducing her workload in her present position and then by offering her other positions within her unit at the next lower grade met its obligations under the Rehabilitation Act. We find no support for the Union's claims that there were vacant positions outside the grievant's unit to which she could have been assigned or that the Agency's refusal to reassign the grievant outside her unit was based on her handicap. As such, the Union has not established that the award is deficient as inconsistent with the Rehabilitation Act. See, for example, American Federation of Government Employees, Local 12 and U.S. Department of Labor, 24 FLRA 139, 143-44 (1986).

V. Decision

The Union's exceptions are denied.

(If blank, the decision does not have footnotes.)

1. Article 13, section 1, provides, in pertinent part:

The [e]mployer will maintain an aggressive affirmative-action program to insure that personnel policies, practices and working conditions are free from discrimination as prescribed by law.

Award at 4.

2. Article 3, section 1, provides, in pertinent part:

In the administration of matters covered by this Master Agreement . . . the [p]arties and employees will be governed by applicable [F]ederal laws, applicable government-wide regulations in existence on the effective date of this Master Agreement . . . .

Id. at 3.

3. 29 C.F.R. § 1614.203(g) provides, in pertinent part:

When a nonprobationary employee becomes unable to perform the essential functions of his or her position even with reasonable accommodation due to a handicap, an agency shall offer to reassign the individual to a funded vacant position located in the same commuting area and serviced by the same appointing authority, and at the same grade or level, the essential functions of which the individual would be able to perform with reasonable accommodation if necessary unless the agency can demonstrate that the reassignment would impose an undue hardship on the operation of its program. In the absence of a position at the same grade or level, an offer of reassignment to a vacant position at the highest available grade or level below the employee's current grade or level shall be required . . . .