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55 FLRA No. 87
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 703
U.S. DEPARTMENT OF THE ARMY
ARMAMENT AND CHEMICAL ACQUISITION
AND LOGISTICS ACTIVITY
ROCK ISLAND, ILLINOIS
May 28, 1999
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.
Decision by Chair Segal for the Authority.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Geoffrey L. Pratte 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 filed an opposition.
As relevant here, the Arbitrator found that the grievant failed to sufficiently raise, at the outset of the grievance, the issue of whether the Agency violated the Rehabilitation Act of 1973, 29 U.S.C. § 791, by failing to provide the grievant with a reasonable accommodation for his obsessive-compulsive disorder. Accordingly, the Arbitrator found that the issue was not properly before him, and he declined to make a determination on the merits of the grievant's Rehabilitation Act claim.
For the following reasons, we conclude that the Union has failed to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.
II. Background and Arbitrator's Award
The Agency switched from a "matrix" to a "teaming" work approach. Award at 7. The grievant became confused as to what his role would be under the new approach, and he believed that his job description had become outdated. The grievant filed a grievance alleging, inter alia, that the Agency had harassed and discriminated against him because of a medical condition. As a remedy, the grievant requested "acknowledgment" of his medical condition. Id. at 14.
During Step 1 of the grievance procedure, the grievant's obsessive-compulsive disorder was discussed, and the Union contended that the grievant's work environment contributed to his medical problems. Subsequently, after receiving information from the grievant's psychiatrist, the group leader arranged an interim detail for the grievant, and began seeking another job for him. At Step 2 of the grievance procedure, the grievant did not mention a medical condition, or the accommodation thereof, as issues to be resolved. At Step 3, the grievant set forth the remaining issues, which did not include a medical condition, or the accommodation thereof.
When the grievance was not resolved, the Union invoked arbitration. The parties did not stipulate the issues to be resolved. As relevant here, the Arbitrator stated the issue to be whether the Agency violated the parties' agreement by "failing to provide a reasonable accommodation for the [g]rievant's handicap." Id. at 6.
At the arbitration hearing, the Union argued that the Agency had failed to comply with several Federal laws regarding disabilities. The Agency responded that because the grievant did not include the issue of a disability, or the need for an accommodation of that disability, in his initial grievance, accommodation of a disability was not an issue before the Arbitrator.
Citing Wynne v. Tufts University School of Medicine, 976 F.2d 791 (1st Cir. 1992), reh'g denied, cert. denied, 507 U.S. 1030, the Arbitrator determined that an employer is expected to respond only to what it knows or is chargeable with knowing with respect to an employee's disability. The Arbitrator also stated that the employee is required to make a sufficiently direct and specific request for a special accommodation. The Arbitrator noted that the grievant's initial grievance included a charge of discrimination and harassment due to medical condition. However, the Arbitrator found that the grievance neither named a particular handicap within the meaning of Federal law, nor specifically requested any particular accommodation other than the supervisor's "acknowledgment" of the medical condition. Award at 44.
The Arbitrator concluded that "any request by the [g]rievant for an accommodation because of a handicap was not stated sufficiently at the beginning of the grievance process[.]" Id. at 46, 47. Based on his conclusion [ v55 p508 ] that the grievant had not, at the outset of the grievance, sufficiently raised the issue of accommodation under Federal law, the Arbitrator declined to make a determination on the merits of the grievant's claims.
III. Positions of the Parties
A. Union's Exceptions
The Union argues that, contrary to Federal law, the Arbitrator imposed a burden on the grievant to identify -- at the outset of his grievance -- a specific need for an accommodation due to a particular impairment. According to the Union, the burden is on the Agency to suggest a reasonable accommodation, and if the Agency fails to provide such an accommodation, then the Agency must demonstrate that such an accommodation would create an undue hardship.
According to the Union, the Agency has a defective procedure for accommodating handicapped employees and, as a result, should be required to hire an independent rehabilitation specialist. Also according to the Union, the Agency is liable for compensatory damages because it failed to make "good faith efforts . . . to identify and make a reasonable accommodation" for the grievant. Exceptions at 6 (quoting 42 U.S.C. § 1981a(a)(3).)
B. Agency's Opposition
The Agency asserts that the Arbitrator, in declining to consider the merits of the Union's Rehabilitation Act claim, determined that the claim was not procedurally arbitrable because it had not been raised during the grievance process. The Agency contends that the parties' agreement provides the Arbitrator with the authority to resolve questions of arbitrability. The Agency also argues that the grievance did not meet the requirements of Article 11, Section 2d of the parties' agreement, because it neither mentioned the Rehabilitation Act, nor requested an accommodation for a handicap. [n1]
IV. Analysis and Conclusions
An arbitrator's determination as to whether an issue has been timely raised under a negotiated grievance procedure constitutes a determination regarding the procedural arbitrability of that issue. See, e.g., National Labor Relations Board v. National Labor Relations Board Union, 54 FLRA 56, 61 (1998). When an arbitrator finds that a grievance does not meet the specificity requirements of the parties' collective bargaining agreement and, consequently, declines to address the merits of that legal claim, the award is a procedural arbitrability determination. See General Services Administration and American Federation of Government Employees, Council 236, 53 FLRA 925, 937-38 (1997). An arbitrator's determination of the procedural arbitrability of an issue is subject to challenge only on grounds other than those that directly challenge the procedural arbitrability determination itself. U.S. Department of the Treasury, United States Mint, Philadelphia, Pennsylvania and Fraternal Order of Police, Lodge F1-PA, 51 FLRA 1683, 1685 (1996) (U.S. Mint). [n2]
The Arbitrator found that the grievant had not sufficiently raised, at the outset of the grievance, a claim of reasonable accommodation under the Rehabilitation Act. As a result, the Arbitrator found that the reasonable accommodation claim was not before him, and he declined to resolve the merits of that claim. The Arbitrator's determination constitutes a finding that the reasonable accommodation claim was not procedurally arbitrable. Because the Union's exceptions directly challenge the Arbitrator's procedural arbitrability determination itself, they do not provide a basis for finding the award deficient.
The Union's exceptions are denied.
Footnote # 1 for 55 FLRA No. 87
Article 11, Section 2d of the parties' agreement provides, in pertinent part, that "[i]n processing a grievance, the grievant or the designated representative shall specifically identify . . . any law, rule, regulation, policy or practice that has been violated or the circumstances which gave cause for the grievance and the resolution desired." Opposition at 4.
Footnote # 2 for 55 FLRA No. 87