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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 place an employee on leave with his/her consent, or
       without his/her consent when the circumstances are such that
       his/her retention in an active duty status may result in damage to
       Government property, or may be detrimental to the interests of the
       Government, or injurious to the employee, his/her fellow workers,
       or the general public.  If the leave account of the employee is or
       becomes exhausted, any suspension or involuntary leave without pay
       shall be effected in accordance with applicable law, Executive
       orders, and regulations.
 More particularly, the requirements of law and regulation with respect
 to involuntary leave without pay in the circumstances presented in this
 case have been specifically addressed and prescribed.  Both OPM and the
 Comptroller General hold that involuntary leave without pay is properly
 effected when based on agency medical officer reports that the employee
 is incapable of performing the official duties of the job.  FPM chapter
 752, subchapter 2, paragraph 2-1a(3)(e);  41 Comp.Gen. 774 (1962).
 However, both hold that when the agency-initiated disability retirement
 application is disallowed, this constitutes a finding that the employee
 is not incapable of performing the official duties of the job, and the
 agency may not merely continue the employee in an involuntary leave
 without pay status.  Id.  If, however, that decision disallowing the
 disability retirement is changed to a decision allowing the retirement,
 the Agency again may properly effect involuntary leave without pay until
 the matter is finally resolved.  41 777.  Thus, in terms of
 this case, with the involuntary leave without pay status based on the
 fitness-for-duty examination, the Arbitrator's award of backpay
 retroactive to June 6, 1983, is deficient as contrary to governing law
 and regulation.  As has been noted, this is the period during which the
 initial decision of OPM disallowing the retirement prevailed until
 changed on reconsideration, and as a result of which the involuntary
 leave without pay status of the grievant during this period was not
 properly effected.  However, under 41 Comp.Gen. 774, once the decision
 changed to allowance, involuntary leave without pay of the grievant was
 again properly effected.  For these reasons, paragraph 2 of the award is
 modified to provide as follows:
          2.  The grievant shall receive full backpay and benefits from
       October 20, 1983 to December 16, 1983.
 Issued, Washington, D.C., August 12, 1985
                                       Henry B. Frazier III, Acting
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY