50:0566(77)AR - - VA Medical Center, Newington, CT and NAGE, Local R1-109, SEIU - - 1995 FLRAdec AR - - v50 p566

[ v50 p566 ]
The decision of the Authority follows:

50 FLRA No. 77















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.

III. Exceptions

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.

B. Nonfact

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