[ v24 p139 ]
24:0139(19)AR
The decision of the Authority follows:
24 FLRA No. 19
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 12
Union
and
U.S. DEPARTMENT OF LABOR
Agency
Case No. 0-AR-1070
DECISION
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.
II. BACKGROUND AND ARBITRATOR'S AWARD
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
1613.704(c)).
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 stated that an "appallant may
not force consideration of reassignment ad infinitum" where there are no
vacant positions available. Lynch v. Department of Education, Special
Panel, August 20, 1986, Docket No. DC07528210746; DC531D8211379. The
Panel reiterated that its decision in Ignacio only requires that
reassignment be considered as a reasonable accommodation and does not
require an agency to create a position where none exists. Lynch, note
10.
In a court case involving a discharged postal worker who claimed that
he was not accorded reasonable accommodation for his handicapped
condition, a district court held that the regulations implementing the
Rehabilitation Act do not enumerate reassignment as a required
accommodation and noted that there are no cases which hold that
reassignment is required, including Ignacio. Carty v. Carlin, 623 F.
Supp. 1181, 1185 (D.Md. 1985). The Court concluded that the duty to
reasonably accommodate only contemplates accommodation of a qualified
handicapped employee's present position and does not include a
requirement to transfer or reassign an employee to another position.
With regard to an agency's duty under the Rehabilitation Act to
accommodate a handicapped employee by restructuring the employee's
position, the Sixth Circuit has held that the agency is not required to
eliminate the essential functions of the employee's job or to
restructure the job in a manner which would usurp the legitimate rights
of other employees in a collective bargaining agreement. Jasany v. U.S.
Postal Service, 755 F.2d 1244, 1250 (6th Cir. 1985). The Court held
that the appellant was not a handicapped person within the meaning of
the Rehabilitation Act and therefore failed to establish a prima facie
case of handicap discrimination. However, the Court held that even if
the employee were handicapped the Postal Service was not required to
accommodate him by eliminating one of the essential functions of his job
which was the operation of a certain mail sorting machine. The Court
rejected the employee's contention that he could have been reassigned to
the related job of "allied man" on the machine and noted that nothing in
the record pertained to the existence of such a position and that the
suggestion "confuses accommodation with elimination of an essential
function." Jasany at 1251.
In the circumstances of this case, the grievant was certified as a
qualified handicapped employee by the Agency. As such, she was entitled
to "reasonable accommodation" which under 29 C.F.R. Section 1613.704(b)
includes "job restructuring" among other possibilities. The Arbitrator
determined that the Agency failed to meet its obligation to provide
reasonable accommodation to the grievant and found that the grievant
could be assigned to a restructured GS-4 position not requiring use of a
VDT without imposing undue hardship on the operation of the Agency.
The Authority finds that the Arbitrator's award reflects a proper
interpretation of the provisions of the Rehabilitation Act of 1973 and
29 C.F.R. Section 1613.704 consistent with the interpretations made by
the Special Panel and the courts. The Agency did not demonstrate to the
Arbitrator and has not demonstrated in its arguments before the
Authority that the assignment of the grievant to a restructured GS-4
position which does not require the use of a VDT terminal would cause it
undue hardship. Neither does the Agency show that the operation of a
VDT is such an essential function of the grievant's clerical position
that it could not be eliminated and replaced by other appropriate duties
within the position. The award simply requires restructuring of the
grievant's present position, not reassignment, and is consistent with
law. Further, consistent with the case law discussed above, the
Authority finds that nothing in the Statute or its legislative history
reflects any intent to supersede the provisions of the Rehabilitation
Act of 1973 and its implementing regulations pertinent here.
Consequently, there is no basis for the Agency's exception that the
Arbitrator's award is contrary to 5 U.S.C. Section 7106(a)(2)(A) and (B)
and to the Rehabilitation Act of 1973.
V. DECISION
Accordingly, for the above reasons, the Agency's exception is denied.
Issued, Washington, D.C., November 21, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) 29 C.F.R. Section 1613.704 pertinently provides:
(a) An agency shall make reasonable accommodation to the known
physical or mental limitations of a qualified handicapped
applicant or employee unless the agency can demonstrate that the
accommodation would impose an undue hardship on the operation of
its program.
(b) Reasonable accommodation may include, but shall not be
limited to: (1) Making facilities readily accessible to and
usable by handicapped persons, and (2) job restructuring,
part-time or modified work schedules, acquisition or modification
of equipment or devices, appropriate adjustment or modification of
examinations, the provision of readers and interpreters, and other
similar actions.
(c) In determining pursuant to paragraph (a) of this section
whether an accommodation would impose an undue hardship on the
operation of the agency in question, factors to be considered
include: (1) The overall size of the agency's program with
respect to the number of employees, number and type of facilities
and size of budget; (2) the type of agency operation, including
the composition and structure of the agency's work force; and (3)
the nature and the cost of the accommodation.
(2) The Special Panel was created by the Civil Service Reform Act of
1978 for the purpose of resolving disputes between the MSPB and the EEOC
concerning cases with mixed civil service law and discrimination law
issues that have been originally appealed to the MSPB. The Panel's
jurisdiction in such matters is set out in 5 U.S.C. Section 7702.