Office and Professional Employees International Union, Local 268 and U.S. Department of Energy, Oak Ridge, Tennessee

[ v55 p775 ]

55 FLRA No. 130







August 31, 1999


Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

Decision by Member Wasserman for the Authority.

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Craig L. Williams filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.

      The Arbitrator denied a grievance claiming that the Agency did not have a valid reason for rejecting the grievant's request to withdraw his Voluntary Separation Incentive Pay (VSIP) or buyout agreement and application for early retirement. We conclude that the Authority lacks jurisdiction over the exceptions under section 7121(f) of the Statute. Accordingly, we dismiss the exceptions.

II.     Background and Arbitrator's Award

      The grievant, an industrial specialist in quality assurance in the Agency's Defense Program area for 28 years, was informed that his position was on the reduction-in-force (RIF) list. Thereafter, the grievant signed and submitted an application for a buyout under the Agency's VSIP program. Since the Agency decided not to issue RIF notices, the grievant submitted a request to withdraw his buyout application. The instant grievance was filed when the Agency refused to grant the grievant's withdrawal request. When the grievance was not resolved, it was submitted to arbitration. [ v55 p776 ]

      At arbitration, the stipulated issue was "whether the [A]gency had a valid reason to deny the grievant's request to withdraw his buyout[,] and if not, what should be the remedy." Award at 1. The Arbitrator concluded that the Agency had established valid reasons for denying the grievant's withdrawal request by a preponderance of the evidence, in accordance with the Merit Systems Protection Board's (MSPB) decision, Cook v. Department of Defense, 63 M.S.P.R. 270 (1994) (Cook). Accordingly, the Arbitrator denied the grievance.

III.     Positions of the Parties

A.     Union's Exceptions

      The Union argues that the award is deficient on two grounds. First, the Union claims that the Arbitrator's findings and conclusions constitute nonfacts. Second, the Union argues that the award fails to conform to 5 C.F.R. 715.202(b). The Union contends that under this regulation, the Agency must: (1) have a valid reason for refusing to accept the grievant's withdrawal of his buyout application, and (2) explain that reason to the grievant. The Union maintains that the Agency failed to satisfy both of these requirements.

B.     Agency's Opposition

      The Agency argues that the Union has failed to establish that the award is deficient based on nonfacts since the findings at issue were disputed at the arbitration hearing. The Agency also maintains that the award is not contrary to 5 C.F.R. 715.202(b) since the grievant was informed that "[m]anagement is not rescinding any buyouts." Opposition at 5. Alternatively, the Agency argues that even if it failed to explain its valid reasons to the grievant, this deficiency is not a basis for overturning the award, citing Olsen v. Department of the Army, 65 M.S.P.R. 60 (1994).

IV.     Analysis and Conclusions

      Section 7122(a) of the Statute provides, in pertinent part that:

Either party to arbitration under this chapter may file with the Authority an exception to any arbitrator's award pursuant to the arbitration (other than an award relating to a matter described in section 7121(f) of this title).

The matters described in section 7121(f) [n1]  are those matters covered under 5 U.S.C. §§ 4303 and 7512 and similar matters that arise under other personnel systems. Section 4303 covers removals and reductions-in-grade for unacceptable performance, while section 7512 covers adverse actions, specifically removals, suspensions for more than 14 days, reductions either in grade or pay, or furloughs for 30 days or less.

      In this case, the Union claimed at arbitration that the Agency improperly denied the grievant's request to withdraw his buyout and early retirement application since the Agency did not have a valid reason for the denial. The MSPB views claims such as those made by the Union at arbitration as within its jurisdiction under section 7512 if the MSPB finds that the Agency did not have a valid reason for denying the withdrawal request. See Cook, 63 M.S.P.R. at 273; Perrine v. General Services Administration, 81 M.S.P.R. 155, 160 (1999) (Perrine). Accordingly, although not raised by the parties, this case presents the jurisdictional issue of whether the Arbitrator's award is an award relating to a matter described in section 7121(f). [n2] 

      For the reasons that follow, we conclude that the Authority does not have jurisdiction over the Union's exceptions.

      Under 5 C.F.R. 715.202(b), an employee has a right to withdraw a commitment to resign or retire at any time before it is effective, unless the agency has a "valid reason" for denying the withdrawal request. [n3]  The MSPB, in interpreting this regulation, has held that, if an agency does not permit an employee to withdraw his/her resignation or retirement before its effective date and lacks a valid reason, the appellant's subsequent separa- [ v55 p777 ] tion is tantamount to a removal within its jurisdiction. Specifically, in Cook, the MSPB stated that:

[W]e find that the agency failed to demonstrate a valid reason for denying the appellant'