---

 7 FLRA No. 120
 
 NORTHEASTERN PROGRAM
 SERVICE CENTER, OFFICE
 OF PROGRAM SERVICE
 CENTERS, SOCIAL SECURITY
 ADMINISTRATION
 Activity
 
 and
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 LOCAL 1760
 Union
 
                                            Case No. 0-AR-128
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR WOODROW J. SANDLER FILED BY THE AGENCY UNDER SECTION 7122(A)
 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
 7122(A))(THE STATUTE) AND PART 2425 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR PART 2425).  THE UNION FILED AN OPPOSITION.
 
    ACCORDING TO THE ARBITRATOR'S AWARD, THE DISPUTE IN THIS MATTER AROSE
 WHEN THE ACTIVITY DENIED THE GRIEVANT'S REQUEST FOR LEAVE WITHOUT PAY
 FOR MEDICAL REASONS.  A GRIEVANCE WAS FILED AND ULTIMATELY SUBMITTED TO
 ARBITRATION.  THE ARBITRATOR STATED THE ISSUE BEFORE HIM AS FOLLOWS:
 
    DID THE EMPLOYER HAVE JUST CAUSE IN DENYING THE GRIEVANT'S REQUEST
 FOR LEAVE WITHOUT PAY
 
    AND IMPOSING A RECORD OF "AWOL" IN GRIEVANT'S PERSONNEL FILE, AND IF
 NOT, WHAT SHOULD THE
 
    REMEDY BE?
 
    THE ARBITRATOR, AFTER CONSIDERING THE EVIDENCE AND TESTIMONY BEFORE
 HIM, FOUND THAT THE GRIEVANT HAD BEEN "CONTINUOUSLY CONFRONTED WITH A
 HIERARCHY OF THREE SUPERVISORS, ALL OF WHOM HAD PRE-DETERMINED TO REFUSE
 HER REQUEST FOR LWOP, REGARDLESS OF THE REASON." REFERRING TO SPECIFIC
 TESTIMONY BY THESE SUPERVISORS, HE FOUND THAT THEIR DECISIONS NOT TO
 GRANT THE REQUESTED LEAVE WITHOUT PAY AND THEIR REASONS THEREFOR WERE
 "ARBITRARY, DISCRIMINATORY, AND CAPRICIOUS." ON THIS BASIS, HE MADE THE
 FOLLOWING AWARD:
 
    (1) GRIEVANT TO BE PLACED ON THE REQUESTED "LWOP" AT ONCE.
 
    (2) ALL "AWOL" REFERENCES TO BE REMOVED FROM HER FILE.
 
    (3) THE WITHIN GRIEVANCE TO BE GRANTED IN TOTO.
 
    IN ITS FIRST EXCEPTION THE AGENCY ALLEGES THE AWARD IS DEFICIENT
 BECAUSE IT IS CONTRARY TO LAWS AND REGULATIONS REGARDING THE GRANTING OF
 LEAVE WITHOUT PAY.  IN SUPPORT OF THIS EXCEPTION, THE AGENCY REFERS TO
 FEDERAL PERSONNEL MANUAL (FPM) CHAPTER 630, SUBCHAPTER 12, WHICH
 PROVIDES THAT THE GRANTING OF LEAVE WITHOUT PAY IS A MATTER OF
 ADMINISTRATIVE DISCRETION AND WHICH ALSO SETS FORTH STANDARDS TO BE
 APPLIED IN THE EXERCISE OF THAT DISCRETION.  THE AGENCY STATES THAT THE
 AWARD DOES NOT REFLECT CONSIDERATION OF THESE STANDARDS AND THAT THE
 AWARD "IS CONTRARY TO THE TESTIMONY AND EVIDENCE OFFERED AND THE
 APPLICATION OF THE REGULATIONS."
 
    THE AGENCY, IN ITS FIRST EXCEPTION, HAS FAILED TO ESTABLISH THAT THE
 ARBITRATOR'S AWARD IS CONTRARY TO LAW OR REGULATION.  THUS, THE AGENCY
 HAS NOT CITED ANY LAW OR REGULATION WHICH WOULD PROHIBIT THE
 ARBITRATOR'S AWARD GRANTING THE REQUESTED LEAVE WITHOUT PAY IN THE
 CIRCUMSTANCES OF THIS CASE.  THE STANDARDS SET FORTH IN FPM CHAPTER 630
 AND CITED BY THE AGENCY ARE BY THEIR OWN TERMS, "NONREGULATORY IN
 CHARACTER AND . . . NOT MANDATORY." WHILE IT IS NOTED THAT FPM CHAPTER
 630 PROVIDES THAT THE AUTHORIZATION OF LEAVE WITHOUT PAY IS A MATTER OF
 ADMINISTRATIVE DISCRETION AND THAT, GENERALLY, EMPLOYEES ARE NOT
 ENTITLED TO LEAVE WITHOUT PAY AS A MATTER OF RIGHT, THE ARBITRATOR FOUND
 THAT, IN EXERCISING ITS DISCRETION IN THIS CASE, THE ACTIVITY'S
 DECISIONS WERE ARBITRARY, DISCRIMINATORY AND CAPRICIOUS.  THUS, THE
 ARBITRATOR IN ESSENCE FOUND NO JUST CAUSE FOR THE ACTIVITY'S DENIAL OF
 THE REQUESTED LEAVE WITHOUT PAY.  NOTHING IN THE CITED REGULATIONS OR IN
 LAW PRECLUDES AN ARBITRATOR FROM MAKING SUCH A DETERMINATION OR FROM
 MAKING THE AWARD RENDERED IN THIS CASE.  THEREFORE, THE AGENCY'S FIRST
 EXCEPTION PROVIDES NO BASIS FOR FINDING THE AWARD DEFICIENT.
 
    IN ITS SECOND AND THIRD EXCEPTIONS THE AGENCY CONTENDS THAT THE AWARD
 IS BASED ON A NONFACT AND THAT THE ARBITRATOR EXCEEDED HIS AUTHORITY.
 THE AGENCY'S ARGUMENTS IN SUPPORT OF BOTH OF THESE EXCEPTIONS REFER TO
 STATEMENTS MADE BY THE ARBITRATOR IN HIS OPINION REFERRING TO THE
 GRIEVANT AS "ILL" AND A "SICK PERSON." NEITHER HAS IN NO MANNER
 ESTABLISHED THAT THE CENTRAL FACT UNDERLYING THE AWARD IS CONCEDEDLY
 ERRONEOUS AND IS IN EFFECT A GROSS MISTAKE OF FACT BUT FOR WHICH A
 DIFFERENT RESULT WOULD HAVE BEEN REACHED.  SEE UNITED STATES ARMY
 MISSILE MATERIAL READINESS COMMAND (USAMIRCOM) AND AMERICAN FEDERATION
 OF GOVERNMENT EMPLOYEES, LOCAL 1858, AFL-CIO, 2 FLRA NO. 60(1980).
 INSTEAD, IT IS CLEAR IN THIS CASE THAT THE ARBITRATOR'S AWARD WAS BASED
 UPON THE TESTIMONY OF THE SUPERVISORS WHO DENIED THE GRIEVANT'S REQUEST
 AND THE REASONS THEY GAVE FOR THEIR DENIALS.  LIKEWISE, IT IS CLEAR THAT
 THE ARBITRATOR ANSWERED THE VERY QUESTION PRESENTED TO HIM, I.E.,
 WHETHER THERE WAS JUST CAUSE FOR DENYING THE REQUESTED LEAVE.  FINDING
 THE DECISIONS AND THE REASONS GIVEN TO BE "ARBITRARY, DISCRIMINATORY,
 AND CAPRICIOUS," THE ARBITRATOR SUSTAINED THE GRIEVANCE.  THEREFORE,
 THERE IS NO BASIS FOR FINDING THAT THE ARBITRATOR EXCEEDED HIS
 AUTHORITY.
 
    FOR THE FOREGOING REASONS, THE AGENCY'S EXCEPTIONS ARE DENIED.
 
    ISSUED, WASHINGTON, D.C., JANUARY 28, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY 
 
 
 

---