19:0729(88)AR - VA Supply Depot and AFGE Local 2220 -- 1985 FLRAdec AR

[ v19 p729 ]
The decision of the Authority follows:

 19 FLRA No. 88
                                            Case No. O-AR-717
    This matter is before the Authority on exceptions to the award of
 Arbitrator James P. Begin 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.
    A grievance was filed and submitted to arbitration on the issue of
 whether the Activity had cause to place the grievant involuntarily in a
 nonduty, nonpay status pending a decision on an agency-filed disability
 retirement application in behalf of the grievant with the Office of
 Personnel Management (OPM).  According to the Arbitrator's award and the
 record before the Authority, the background of the grievance involves
 the two heart attacks of the grievant, a warehouse worker, WG-5, and his
 return to duty after the second attack.  After his return to duty, the
 grievant took a fitness-for-duty physical examination and was determined
 by the Activity to be unfit for duty.  As a consequence, on June 6,
 1983, the grievant was placed involuntarily in a nonduty, nonpay status
 and the Activity initiated a disability retirement application.  On
 October 20, 1983, OPM disallowed the disability retirement claim because
 the Activity had not established the presence of a medical condition
 causing a deficiency in service, and the Activity sought reconsideration
 while continuing to maintain the involuntary nonduty, nonpay status of
 the grievant.  On December 16, 1983, OPM reconsidered its decision and
 changed that decision to allowance of the retirement and on June 12,
 1984, sustained its decision allowing the agency-filed disability
 retirement claim submitted in behalf of the grievant.  The Arbitrator
 ruled that the Activity did not have cause to place the grievant in a
 nonduty, nonpay status pending the decision on the disability retirement
 claim.  Accordingly, the Arbitrator ordered that the grievant receive
 full backpay and benefits from June 6, 1983, to the effective date of
 his disability retirement.
    In its first and second exceptions, the Agency contends that by
 judging whether the Activity had cause to place the grievant in a
 nonduty, nonpay status, the award does not draw its essence from the
 collective bargaining agreement and is in excess of the Arbitrator's
 authority.  However, the Agency has failed to establish that the award
 in this manner is in manifest disregard of the agreement or is in
 disregard of a plain and specific limitation on the authority of the
 Arbitrator.  Consequently, these exceptions provide no basis for finding
 the award deficient and they are denied.  See, e.g., Federal
 Correctional Institution, Texarkana, Texas, Federal Prison System and
 American Federation of Government Employees, Local 2459, Texarkana,
 Texas, 19 FLRA No. 26 (1985).
    In its third exception, the Agency contends that the award is
 contrary to section 7121(c)(2) of the Statute which precludes grievances
 concerning retirement.  However, the Agency has failed to establish that
 the grievance concerns retirement.  As expressly noted by the
 Arbitrator, "the issue before the Arbitrator which was mutually agreed
 to at the hearing does not include the disability retirement decision."
 Award at 8.  Accordingly, this exception is denied.
    In its final exception the Agency contends that the award is contrary
 to governing law and regulation.
    The matter of the duty and pay status of an employee in whose behalf
 a disability retirement application has been filed with OPM is
 specifically governed by 5 CFR 831.1206 which provides:
          An agency shall retain an employee in an active duty status
       until it receives the initial decision of the Associate Director
       for Compensation on an agency application for disability
       retirement, except that the agency on the basis of medical
       evidence, may plac