55 FLRA No. 130

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's request to withdraw his resignation before its effective date, that [the appellant's] resulting separation by resignation became involuntary and constituted a removal action within the Board's jurisdiction, and that the agency, in effect, removed the appellant without according him the adverse action rights to which he was entitled under 5 U.S.C. chapter 75 or even minimum due process.

Cook, 63 M.S.P.R. at 275. Moreover, the appellant claiming separation as a result of the agency's violation of 5 C.F.R. 715.202(b) must establish that the agency improperly denied the withdrawal request without a valid reason. [n4]  See Perrine, 81 M.S.P.R. at 160; Ward- Ravenell v. General Services Administration, 81 M.S.P.R. 202, 206 (1999); Fleury v. General Services Administration, 81 M.S.P.R. 621, 625 (1999).

      In light of and in agreement with the foregoing MSPB precedent, we conclude that the award in this case regarding the grievant's separation as a result of the Agency's refusal to grant his withdrawal request, relates to a matter covered under section 7512. Consequently, the award relates to a matter described in section 7121(f). Under section 7122(a), exceptions to the award may not be filed with the Authority, and the Authority is without jurisdiction to review the exceptions. [n5] 

      According to the Arbitrator, the Agency had valid reasons for denying the grievant's withdrawal request, and therefore, the Arbitrator implicitly found that the grievant's retirement was voluntary. That is, the Arbitrator concluded that the grievant's retirement was not an adverse action covered by section 7512. However, the Authority's jurisdiction "to review an award does not properly rest on the outcome of an award but, rather, depends on whether the claim advanced in arbitration is one that would be reviewed by the MSPB and, on appeal, by the Federal Circuit." Panama Canal Commission and Maritime Metal Trades Council, 49 FLRA 1398, 1402 (1994). See also U.S. Department of Agriculture, Forest Service, Northern Region, Idaho Panhandle National Forests and National Federation of Federal Employees, Local 1818, 49 FLRA 1582, 1587-88 (1994) (since the Union claimed in arbitration that the challenged action constituted a furlough covered by 5 U.S.C. § 7512, the Authority lacked jurisdiction to review the award, even though the Arbitrator implicitly concluded that section 7512 did not cover the alleged furlough).

      Accordingly, we dismiss the Union's exceptions for lack of jurisdiction.

V.     Decision

      The Union's exceptions are dismissed.

   Section 7121(f) provides in pertinent part that:

In matters covered under sections 4303 and 7512 of this title which have been raised under the negotiated grievance procedure in accordance with this section, section 7703 of this title pertaining to judicial review shall apply to the award of an arbitrator in the same manner and under the same conditions as if the matter had been decided by the [Merit Systems Protection] Board. . .

   A determination that the Authority does not have jurisdiction does not depend on whether the parties have raised the issue of jurisdiction. See, e.g., National Aeronautics and Space Administration, Lewis Research Center, Cleveland, Ohio and International Federation of Professional and Technical Engineers, Local 28, Lewis Engineers and Scientists Association, 54 FLRA 620, 624 n.6 (1998).

   5 C.F.R. 715.202(b) states in pertinent part that:

      (b) Withdrawal of resignation. An agency may permit an employee to withdraw his resignation at any time before it has become effective. An agency may decline a request to withdraw a resignation before its effective date only when the agency has a valid reason and explains that reason to the employee. A valid reason includes, but is not limited to, administrative disruption or the hiring or commitment to hire a replacement. Avoidance of adverse action proceedings is not a valid reason.

   Like the grievant in this case, the appellants in these MSPB cases were requesting withdrawals of their separation agreements under other VSIP or buyout programs.

   Under section 7121(f), if an employee elects to raise a section 7512 matter under the negotiated grievance procedure, the arbitrator's award is subject to judicial review in the same manner and under the same conditions as if the award were the decision of the MSPB. See footnote 1. Accordingly, the proper forum for this appeal was the U.S. Court of Appeals for the Federal Circuit. See 5 U.S.C. § 7703(b)(1).