The substantive question before us is whether the award is contrary to 5 C.F.R. § 630.401’s requirement that “an agency must grant sick leave to an employee when he or she . . . [r]eceives [a] medical . . . examination.”^[1] The Union has not established              that – regardless of circumstances – § 630.401 requires an agency to grant a non-incapacitated employee’s request for a non-emergency medical examination on the particular day that the employee chooses. Therefore, the answer is no.

 

 

 

 

                The Arbitrator concluded that neither § 630.401 nor the parties’ collective‑bargaining agreement required the Agency to grant sick leave for a “non‑emergency medical examination[]” such as the grievant’s insurance examination.^[3] In this regard, the Arbitrator stated that the Agency had discretion to deny the grievant’s leave request for the insurance examination, based on the Agency’s need for the grievant’s services that day. And the Arbitrator found, as a factual matter, that the Agency’s staffing requirements necessitated the grievant’s presence at work that day.   

 

 

 

In its exception, the Union argues that the award is contrary to § 630.401.^[4] The Agency contends that we should dismiss this exception under §§ 2425.4(c) and 2429.5 of the Authority’s Regulations because the Union did not make this argument before the Arbitrator.^[5] 

 

Under §§ 2425.4(c) and 2429.5 of the Authority’s Regulations, the Authority will not consider any arguments that could have been, but were not, presented to the arbitrator.^[6] It is clear from the award that the Arbitrator considered a Union argument that the Agency’s denial of the grievant’s sick-leave request was contrary to § 630.401.^[7] Thus, there is no basis for finding that the Union failed to make its § 630.401 argument below. Accordingly, we find that §§ 2425.4(c) and 2429.5 do not bar the argument.

 

As stated previously, the Union argues that the award is contrary to § 630.401.^[8] Specifically, the Union interprets § 630.401 to require agencies to grant          sick-leave requests for medical examinations such as the grievant’s insurance examination.^[9] Additionally, the Union asserts that the Authority’s decision in Warner Robins supports the Union’s interpretation of § 630.401.^[10] 

 

When an exception involves an award’s consistency with law, the Authority reviews any question of law de novo.^[11] In conducting de novo review, the Authority assesses whether the arbitrator’s legal conclusion – not his or her underlying reasoning – is consistent with the relevant legal standard.^[12]

 

                Section 630.401(a) provides, in pertinent part, that “an agency must grant sick leave to an employee when he or she . . . [r]eceives [a] medical . . . examination.”^[13] In his award, the Arbitrator concluded that § 630.401 did not require the Agency to grant sick leave for a “non‑emergency medical examination[]” such as the grievant’s insurance examination.^[14] In particular, the Arbitrator found that the Agency’s staffing requirements necessitated the grievant’s presence at work that day, and that the Agency’s denial of the grievant’s sick-leave request fell within the Agency’s discretion under § 630.401.^[15] 

 

 

Warner Robins does not support a contrary conclusion. In Warner Robins, the Authority interpreted § 630.401 and related regulations to find that an agency could not charge an employee as AWOL if the employee had provided administratively acceptable evidence of incapacity for duty.^[16] But where, as here, there is no claim that an employee was incapacitated, nothing in the Authority’s analysis in Warner Robins prohibits an agency from charging an employee with AWOL for failing to report to work as directed when: the agency previously denied a request for annual leave for the day at issue; the agency had staffing needs that required the employee to work that day; the agency communicated those needs to the employee; the agency denied the employee’s sick-leave request for that day; and the employee ignored that denial and failed to report for work as directed. Accordingly, the Union’s reliance on Warner Robins is misplaced. 

 

Based on the foregoing, we find that the award is not contrary to law. We note that the Union also claims that a provision of the parties’                  collective-bargaining agreement “mirrors” § 630.401(a), so that “even in the absence of . . . § 630.401, the [agreement] mandates the grant of sick leave for medical examinations.”^[17] The Union’s claim is premised on the notion that the award conflicts with the requirements in § 630.401(a). Because we have found to the contrary, the Union’s claim provides no basis for finding the award deficient.

 

 

---