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U.S. Federal Labor Relations Authority

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12:0616(116)AR - HUD and AFGE -- 1983 FLRAdec AR

[ v12 p616 ]
The decision of the Authority follows:

 12 FLRA No. 116
                                            Case No. O-AR-448
    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.