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The decision of the Authority follows:
50 FLRA No. 77
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF VETERANS AFFAIRS
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
LOCAL R1-109, SEIU
June 29, 1995
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 John C. Shearer filed by the Agency under section 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 sustained a grievance alleging that the Agency failed to accommodate the grievant's physical restrictions resulting from an injury.
For the following reasons, we conclude that the Agency has failed to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.
II. Arbitrator's Award
The grievant, who was assigned to a work shift of 7:00 a.m. to 3:30 p.m., suffered an off-duty injury which resulted in physical restrictions that precluded her from performing her regular duties for 11 workdays. Her supervisor arranged an accommodation for the grievant to perform light duty work between 8:00 a.m. and 3:30 p.m. and, upon determining that there was no such work available in their work unit between 7:00 a.m. and 8:00 a.m., offered to change her shift so that it started at 8:00 a.m. and ended at 4:30 p.m., or to let her remain on her shift and use an hour of sick leave each day. The grievant declined the offer of the changed shift and took sick leave each day between 7:00 and 8:00 a.m. She filed a grievance contesting the Agency's failure to provide her with an accommodation for her entire shift.
The parties agreed on the following issue before the Arbitrator:
Did the Employer violate the collective bargaining agreements with respect to accommodating [g]rievant's physical restrictions resulting from an off-duty injury . . . ? If so, what should the remedy be?
Award at 2. The Arbitrator found that "[t]he change of [the] [g]rievant's schedule" violated Article XXVI, Section 11 of the parties' supplemental agreement,(1) and "[t]he Agency cannot properly include this clear contractual violation as part of its fulfillment of its obligation under Article 18, Section 9, of the Master Agreement to 'make a reasonable effort to place the employee in a light duty assignment at the facility.'" Id. at 3. The Arbitrator concluded that the Agency violated the master agreement with respect to accommodating the grievant's physical restrictions, and sustained the grievance and directed the Agency to restore 11 hours of sick leave to the grievant.
A. Agency's Contentions
The Agency contends that the award is based on the nonfact that the Agency changed the grievant's work shift. The Agency also maintains that the Arbitrator erred when he failed to find that the Agency complied with the parties' master agreement with respect to reasonable accommodation by offering to change her work shift.
B. Union's Opposition
As a preliminary matter, the Union requests that the Authority not consider affidavits and hand-written annotations by the Agency added to the Union's post-hearing brief which were filed by the Agency as part of its exceptions. In support, the Union asserts that the Authority must consider only the evidence before the Arbitrator, and this evidence does not include either the affidavits or the Agency's annotations to the Union's post-hearing brief.
As to the merits of the exceptions, the Union contends that the Arbitrator properly interpreted the contractual provisions before him in finding that the Agency did not provide a reasonable accommodation for the grievant. The Union also asserts that, even if the Arbitrator erred in finding that the Agency changed the grievant's work shift, the award is not deficient because it was not based on whether the grievant's shift was actually changed, but rather on the Agency's failure to offer the grievant any accommodation other than the change in shift.
IV. Analysis and Conclusions
A. Preliminary Matter
The affidavits attached to the Agency's exceptions could have been prepared and presented by the Agency to the Arbitrator as part of a post-hearing brief and, therefore, are not appropriate for consideration by the Authority under section 2429.5 of our Regulations.(2) Cf. U.S. Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California and American Federation of Government Employees, Local 1857, 50 FLRA 96, 99 (1995) (statements that could not have been presented to the arbitrator because the parties' contract did not permit the filing of briefs with the arbitrator were not precluded from Authority consideration by section 2429.5). However, the Union has not established any basis on which to preclude our consideration of the Agency's annotations to the Union's post-hearing brief. The annotations constitute argument in support of the Agency's exceptions, not evidence subject to section 2429.5.
It is well settled that, to establish that an award is based on a nonfact, a party must show that the central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593 (1993).
The Agency has not demonstrated that, even if the Arbitrator erred in finding that the Agency changed the grievant's work shift, the finding was the central fact underlying the award and the Arbitrator would have reached a different result but for this asserted error. Accordingly, the Agency has not demonstrated that the award is based on a nonfact. Id.
C. Essence of the Agreement
We construe the Agency's contention that the Arbitrator erred when he failed to find that the Agency complied with the parties' master agreement with respect to reasonable accommodation as an argument that the award does not draw its essence from the parties' agreement. To demonstrate that an award is deficient because it fails to draw its essence from the parties' agreement, a party must show that the award: (1) is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; or (2) does not represent a plausible interpretation of the agreement; or (3) cannot in any rational way be derived from the agreement or evidences a manifest disregard of the agreement. United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-76 (1990).
The Agency has not demonstrated that the award is deficient under any of these tests. The Agency has not shown that the Arbitrator's conclusion that the Agency violated the parties' master agreement by charging the grievant sick leave is implausible, irrational, or otherwise deficient.
Accordingly, we deny this exception.
The Agency's exceptions are denied.
Article XXVI, Section 11 of the parties' supplemental agreement states:
Schedules will be posted two week[s] prior to the work period. Changes in schedules will be made only for emergency situations. It is incumbent upon the supervisor to notify the employee involved of such changes and the reason for the change.
Such emergency changes in scheduling shall be made in writing.
(If blank, the decision does not have footnotes.)
1. Article XXVI, Section 11 of the parties' supplemental agreement is set forth in the Appendix to this decision.
2. Section 2429.5 of the Authority's Regulations provides:
The Authority will not consider evidence offered by a party, or any issue, which was not presented in the proceedings before the Regional Director, Hearing Officer, Administrative Law Judge, or arbitrator. The Authority may, however, take official notice of such matters as would be proper.