Defense Logistics Agency, Defense Depot Mechanicsburg and Mechanicsburg Federal Employees Local 1170 (Authority decision, July 23, 1987)

Final FLRA decision. The Authority denies the Defense Logistics Agency's exception to an arbitration award ordering a warehouse worker's reinstatement with backpay. Under 5 U.S.C. § 7123(a)(1), orders involving arbitral awards are generally excluded from judicial review unless they involve an unfair labor practice under 5 U.S.C. § 7116. This decision does not state that it involves one.

Plain-English summary

A Defense Depot Mechanicsburg warehouse worker lost vision in one eye while away from work for a job-related back injury. The depot would not return him to his forklift duties and placed him in a different job. An arbitrator found that the physical standard for his classified warehouse-worker position required distance vision in one eye for most duties, and that the depot had not shown he could not perform the work. The arbitrator ordered reinstatement with backpay. The Authority rejected the agency's management-rights challenge, finding no error in the arbitrator's use of the applicable position standards.

Decision snapshot

• Authority: Management rights and arbitration review under 5 U.S.C. §§ 7106(a)(2) and 7122(a).
• Outcome: Agency's exception denied; reinstatement and backpay award remains in place.
• Key point: Disagreement with an arbitrator's application of the applicable physical standards did not show a defect in the award.

Full text (FLRA public release)

[ v28 p81 ]
28:0081(17)AR

The decision of the Authority follows:

28 FLRA NO. 17

DEFENSE LOGISTICS AGENCY,
DEFENSE DEPOT MECHANICSBURG,
MECHANICSBURG, PENNSYLVANIA
Activity

and

MECHANICSBURG FEDERAL EMPLOYEES,
AFL-CIO, LOCAL UNION NO. 1170,
LABORERS' INTERNATIONAL UNION OF
NORTH AMERICA, MECHANICSBURG,
PENNSYLVANIA
Union

Case No. 0-AR-1299

DECISION

I. Statement of the Case

This matter is before the Authority on an exception to the award of Arbitrator J. A. Raffaele filed on behalf of the Activity by the Defense Logistics Agency (the Agency) under section 7122(a) of the Federal Service Labor - Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations.

II. Background and Arbitrator's Award

The grievant was employed at the Activity as a Warehouse Worker (Forklift Operator), WG-6907-5. While off duty because of a job-related back injury, he lost his vision in one eye due to an accident. When he returned to duty, an Activity physician recommended that he be reassigned to new duties which did not require vision in both eyes or driving a forklift. However, the grievant's physician determined that the grievant could perform the duties in his position description. The grievant also established that he was licensed to drive his own personal automobile and an emergency vehicle he drove as a volunteer fireman.

On the basis of the medical report of its physician, the Activity refused to permit the grievant to return to his position. A grievance was filed concerning the Activity's action, seeking to return the grievant to his position, with backpay. During the course of the grievance, the Activity offered the grievant a position as a Mail Process Equipment Operator, GS-350-1, with saved pay, or a disability retirement. The grievant accepted the position but the grievance proceeded to arbitration.

Evidence was introduced in the arbitration proceeding concerning the physical standards established by the Office of Personnel Management in Civil Service Handbook X-118 (Qualification Standards) for Warehouse Worker positions, WG-6900, and for Mobile Industrial Equipment Operator positions, WG-5700. For the WG-6900 series, the physical requirements include, among other things, good distance vision in one eye for ground or floor level activities and good distance vision in both eyes for above ground or floor level activities. For the WG-5700 series, which covers Forklift Operator positions, the physical requirements include, among other things, good distance vision in both eyes.

The Arbitrator found that the evidence presented by the Activity as to the physical requirements for the job of Warehouse Worker (Forklift Operator) was not definitive and seemed to be inconsistent. The Arbitrator found that the requirements for the 5700 series positions covered working on equipment more complex and hazardous than operating a forklift on ground or floor level in the confined space of a warehouse. The Arbitrator essentially determined that because the grievant's job as a Warehouse Worker was classified in the 6900 series, the physical requirements for that series were controlling. In applying those requirements to the case before him, he concluded that since the grievant performed most of his job functions at ground or floor level, including operation of the forklift, distance vision in only one eye was required.

Moreover, the Arbitrator found that the Activity did not give the grievant an opportunity to demonstrate whether he could operate a forklift upon his return to work. The Arbitrator determined that the Activity, having been presented with a statement from the grievant's physician that he was able to do the work, was obligated to permit him to do the job or to further consult with his physician. The Arbitrator also found that the assessment of the Activity's physician did not refer to the job elements for warehouse employees.

The Arbitrator concluded that there was no demonstration that the grievant cannot adequately perform the forklift operation function as a warehouse worker. The Arbitrator also concluded that there was no showing of any need for a reasonable accommodation of the grievant's handicap to enable him to perform the duties of the position, or if such an accommodation were necessary, that it would be unduly burdensome to the Activity.

As his award, the Arbitrator sustained the grievance and ordered the grievant reinstated to his former position with backpay.

III. Exception

The Agency contends that the Arbitrator's award is contrary to section 7106(a)(2)(A) and (B) of the Statute. In support of its contention the Agency argues that the Arbitrator's award infringes on its management rights to assign employees and assign work, specifically its right to determine the particular qualifications needed to perform forklift operator work.

IV. Analysis and Conclusion

We find that the Agency fails to establish that the Arbitrator's award is deficient as alleged.

It is undisputed that the grievant's position is classified as a Warehouse Worker, WG-6907-5, and that the standards for 6900 Warehouse Worker positions contemplated that employees operating under those standards would occasionally operate a forklift. As noted, the Warehouse Worker standards only require vision or distance vision in one eye. Thus, the physical requirements took into account the fact that employees who were predominately Warehouse Workers would occasionally operate a forklift. The Activity may disagree with those requirements, but we find that the Activity has failed to establish that the Arbitrator erred either in concluding that the physical requirements established by OPM for the Warehouse Worker position were applicable to the grievant or in applying those requirements in this case.

We conclude that the Activity has also failed to establish that the Arbitrator's award is contrary to the Statute. Rather, the Activity's exception constitutes nothing more than disagreement with the Arbitrator's application of established standards for the Warehouse Worker position and as such, is nothing more than disagreement with the Arbitrator's reasoning and conclusion in resolving the issue before him and an attempt to relitigate the merits of the dispute before the Authority. Such disagreement does not provide a basis for finding an award deficient. For example, Department of the Air Force, Scott Air Force Base and National Association of Government Employees, Local No. R7-23, 4 FLRA 712 (1980).

V. Decision

For these reasons, the Activity's exception is denied. 1

Issued, Washington, D.C.,July 23, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY

FOOTNOTES

Footnote 1 We also note with approval the
Arbitrator's reference to agency obligations under the Rehabilitation Act of 1973, 29 U.S.C. 701 et seq., and the suggestion that consideration might be given to a reasonable accommodation in the grievant's Warehouse Worker position in the event that it is demonstrated that he is unable to adequately perform the forklift operator duties of the position. See American Federation of Government Employees, Local 12 and U.S. Department of Labor, 24 FLRA No. 19 (1986).