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55 FLRA No. 192
U.S. Department of Veterans Affairs Medical and Regional Center Togus, Maine and AFGE, Local 2610 Members (Henderson, Arbitrator), 0-AR-3090 (Decided December 27, 1999)
The Arbitrator sustained a grievance challenging the Agency's permanent assignment of an employee to the day shift as an accommodation of the employee's diabetes under the Rehabilitation Act of 1973, 29 U.S.C. §§ 701. The Authority concluded that the Agency failed to establish that the award was deficient.
The Authority rejected the allegation that the Arbitrator exceeded her authority, that the award did not derived its essence from the agreement, or that the parties were denied a fair hearing. The Authority also noted that the award was not deficient on grounds of procedural arbitrability. The Authority also rejected the allegation that the award was contrary to law, specifically the Rehabilitation Act, because it enforced unit employees' contractual rights to a rotating shift schedule over a permanent shift assignment for one employee as an accommodation of his handicapping condition.
The Authority noted that under the Rehabilitation Act, as stated by the Arbitrator, an agency is not required to accommodate an employee's handicap by violating the rights of other employees under a collective bargaining agreement. The well-settled rule in cases arising under the Rehabilitation Act is that where there is a conflict between the terms of a collective bargaining agreement and an employer's obligation to reasonably accommodate a handicapped employee the agreement takes precedence. Thus, the Authority concluded that by enforcing unit employees' right under the collective bargaining agreement to a rotating shift schedule, notwithstanding the Agency's claim that it was obligated to accommodate the employee's handicapping condition by permanently assigning him to the day shift, the Arbitrator's award properly enforced the parties' agreement and, therefore, did not violate the Rehabilitation Act. Therefore, this exception was denied. Additionally, the Authority rejected allegations that the award was contrary to management's rights.
The Authority also concluded that the award was not contrary to regulation. The Authority noted that under 29 C.F.R.§ 1614.203(c), an agency is required to make "reasonable accommodation" to the known handicapping conditions of qualified applicants or employees, unless the accommodation would impose an "undue hardship" on the operations of its program. Also rejected was the allegation that the award was inconsistent with public policy. The Authority noted that the violation of such a public policy must be clearly shown if an award is to be found deficient. As such was not the case here, the exception was denied.