12:0616(116)AR - HUD and AFGE -- 1983 FLRAdec AR
[ v12 p616 ]
The decision of the Authority follows:
12 FLRA No. 116 U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (Agency) and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO (Union) Case No. O-AR-448 DECISION This matter is before the Authority on an exception to the award of Arbitrator Howard G. Gamser filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. The Agency did not file an opposition. /1/ The dispute before the Arbitrator in this matter concerned the propriety of the Agency's actions in refusing to allow the grievant to withdraw her written resignation on the day after she had submitted it, and in thereafter processing the resignation to be effective on the day it was submitted. The Arbitrator found that the facts stipulated to by the parties established that the grievant had clearly indicated that her resignation was to be effective immediately when she left the Agency on the day in question, notwithstanding the advice of three management officials that she reconsider and not resign. The Arbitrator determined that the Agency's actions were in accordance with Federal Personnel Manual (FPM) Chapter 296-11, which provides that the effective date for a resignation is the date set by the employee; with a decision of the Merit Systems Protection Board, which provided that execution of a Standard Form 50 is not always and absolutely necessary for a personnel action to be effective; and with 5 CFR 715.202(b), which provides that an agency may decline an employee's request to withdraw a resignation when the agency has a valid reason. In that latter regard, the Arbitrator found that the Agency in this case had a valid reason in that the grievant was employed in a unit that was being abolished and that a major reduction-in-force was underway in her division and in the Agency when she resigned. As his award, the Arbitrator determined that the Agency's action in processing the grievant's resignation to be effective on the day it was submitted was not improper and, therefore, denied the Union's grievance. In its exception, the Union argues that the Arbitrator's award is contrary to law since the grievant's resignation was not "accepted", i.e., finally processed upon completion of the SF 50 by the Agency until after the grievant sought to withdraw it. Upon careful consideration of the entire record before the Authority, the Authority concludes that the Union has failed to establish that the award is contrary to law. It is clear that the Union is seeking to relitigate the merits of the case before the Authority and that the thrust of the Union's exception constitutes disagreement with the Arbitrator's reasoning and conclusions in resolving the dispute before him. It is well-established that such disagreement provides no basis for finding an award deficient. American Federation of Government Employees, Local 2206 and Department of Health and Human Services, Social Security Administration, Southeastern Program Service Center, 6 FLRA No. 103 (1981). Accordingly, the Union's exception is denied. Issued, Washington, D.C., August 22, 1983 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The Union subsequently filed a motion requesting that "the Authority consider the Department's silence in this matter as an agreement with the arguments raised by AFGE Local 476 in its exception . . . ." While the Agency was entitled to file an opposition, pursuant to section 2425.1(c) of the Authority's Rules and Regulations, neither the Statute nor the Rules and Regulations require the filing of such pleading. On the contrary, the language of section 2425.1(c) is clearly permissive, i.e., "an opposition to the exception may be filed . . . ." Additionally, there is no basis in the Statute or the Rules and Regulations for construing a party's decision not to avail itself of the opportunity to file an opposition as agreement with the other party's exceptions. Accordingly, the Union's motion is denied.