Overseas Education Association (Union) and Department of Defense Dependents Schools (Activity) 



[ v03 p676 ]
03:0676(108)AR
The decision of the Authority follows:


 3 FLRA No. 108
 
 OVERSEAS EDUCATION ASSOCIATION
 Union
 
 and
 
 DEPARTMENT OF DEFENSE
 DEPENDENTS SCHOOLS
 Activity
 
                                            Case No. 0-AR-19
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON A PETITION FOR REVIEW OF THE
 AWARD OF ARBITRATOR IDA KLAUS FILED BY THE AGENCY UNDER SECTION 7122(A)
 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
 7122(A)).
 
    ACCORDING TO THE ARBITRATOR'S AWARD, THIS MATTER INVOLVED MEETINGS OF
 THE ADVISORY COMMITTEE FOR CURRICULUM REVIEW OF THE AGENCY'S ELEMENTARY
 SCHOOL IN AUGSBURG, GERMANY.  MEETINGS OF THIS COMMITTEE WERE HELD
 MONTHLY DURING THE SCHOOL YEAR.  THE COMMITTEE MEETINGS COMMENCED AFTER
 THE CLOSE OF THE "SCHOOL WORKDAY FOR TEACHERS," AS THAT TERM IS DEFINED
 IN ARTICLE 38, SECTION 1 OF THE PARTIES' NEGOTIATED AGREEMENT, AND THEY
 LASTED FOR APPROXIMATELY AN HOUR.
 
    ACCORDING TO THE ARBITRATOR, ARTICLE 38, SECTION 1 PERTINENTLY
 PROVIDES:
 
    THE SCHOOL WORKDAY FOR TEACHERS . . . SHALL COMMENCE NOT MORE THAN
 TWENTY MINUTES BEFORE
 
    AND TERMINATE NOT MORE THAN THIRTY MINUTES AFTER THE INSTRUCTIONAL
 DAY.
 
    THE PARTIES' NEGOTIATED AGREEMENT DEFINES THE INSTRUCTIONAL DAY TO BE
 THE "NUMBERS OF HOURS IN THE WORKDAY IN WHICH CLASSROOM INSTRUCTION
 TAKES PLACE." AT AUGSBURG ELEMENTARY SCHOOL THE INSTRUCTIONAL DAY
 CONCLUDED AT 2:50 P.M. AND THE SCHOOL WORKDAY FOR TEACHERS CONCLUDED AT
 3:10 P.M.  THUS, IT APPEARS THAT THE COMMITTEE MEETINGS COMMENCED AT
 APPROXIMATELY 3:20 P.M. AND LASTED UNTIL APPROXIMATELY 4:20 P.M.
 
    AT THE START OF THE 1977-78 SCHOOL YEAR, A TEACHER ON THE COMMITTEE,
 WHO WAS ALSO A UNION REPRESENTATIVE, COMPLAINED TO THE SCHOOL'S
 PRINCIPAL THAT PURSUANT TO THE AGREEMENT, THE COMMITTEE MEETINGS WERE TO
 BE ON "OFFICIAL TIME," IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE 31,
 SECTION 4 OF THE AGREEMENT, WHICH PROVIDES:
 
    MEMBERS SERVING ON AN ADVISORY COMMITTEE FOR CURRICULUM REVIEW SHALL
 BE ON OFFICIAL TIME
 
    DURING MEETINGS OF SUCH COMMITTEES.  MEMBERS SERVING ON SUCH
 COMMITTEES AT THE DISTRICT AND
 
    REGIONAL LEVEL SHALL RECEIVE TRAVEL AND PER DIEM IN ACCORDANCE WITH
 THE JTR.
 
    IT WAS ASSERTED THAT THE TERM "OFFICIAL TIME" AS USED IN THAT
 AGREEMENT PROVISION MEANT "DUTY TIME." THE UNION REPRESENTATIVE
 THEREFORE REQUESTED ON SEPTEMBER 13, 1977, THAT THE COMMITTEE MEETINGS
 BE HELD DURING THE SCHOOL WORKDAY FOR TEACHERS AND THAT THE COMMITTEE
 MEMBERS BE GRANTED ONE HOUR OF "RELEASE TIME" TO ATTEND THE COMMITTEE
 MEETINGS.  IT WAS OBSERVED IN THE AWARD THAT IT IS COMMONLY UNDERSTOOD
 THAT THE TERM "RELEASE TIME" REFERS TO THE RELEASE WITH PAY OF A TEACHER
 FROM THE COMPLETION OF THE TEACHER'S CLASSROOM DUTIES, EITHER BY EARLY
 DISMISSAL OF THE TEACHER'S CLASS OR BY USE OF A SUBSTITUTE TEACHER.
 
    THE PRINCIPAL DENIED THE REQUEST AND A GRIEVANCE WAS FILED WHICH
 CLAIMED THAT PURSUANT TO THE PARTIES' NEGOTIATED AGREEMENT, "OFFICIAL
 TIME" IS THE SAME AS THE SCHOOL WORKDAY FOR TEACHERS.  THE GRIEVANCE
 SOUGHT THE GRANT OF RELEASE TIME FOR THE COMMITTEE MEMBERS TO ATTEND THE
 COMMITTEE MEETINGS.  THE DISPUTE ULTIMATELY WAS SUBMITTED TO ARBITRATION
 WITH THE PARTIES UNABLE TO AGREE ON THE ISSUES. THEREFORE, THE
 ARBITRATOR STATED THE ISSUES TO BE RESOLVED AS FOLLOWS:
 
    1.  WHETHER THE TERM "OFFICIAL TIME" AS USED IN ARTICLE 31, SECTION 4
 IS TO BE CONSTRUED AS
 
    MEANING THAT PERIOD OF TIME ESTABLISHED IN ARTICLE 38, SECTION 1 AS
 "THE SCHOOL WORKDAY FOR
 
    TEACHERS."
 
    2.  WHETHER THE PRINCIPAL OF THE AUGSBURG ELEMENTARY SCHOOL VIOLATED
 ARTICLE 31, SECTION 4
 
    BY REFUSING TO ALLOW RELEASE TIME FOR TEACHERS TO ATTEND ADVISORY
 CURRICULUM REVIEW COMMITTEE
 
    MEETINGS.
 
    IN RESOLVING THE FIRST ISSUE, THE ARBITRATOR OBSERVED THAT BOTH THE
 COMMITTEE AND ITS MEETING TIME WERE EXCLUSIVELY DERIVED FROM AND
 GOVERNED BY THE TERMS OF THE PARTIES' NEGOTIATED AGREEMENT.  IT WAS THE
 ARBITRATOR'S FINDING AND AWARD THAT THE INTENT OF THE PARTIES IN THAT
 AGREEMENT WAS THAT
 
    (T)HE TERM "OFFICIAL TIME" AS USED IN ARTICLE 31, SECTION 4 OF THE
 AGREEMENT REFERS TO THAT
 
    PERIOD OF TIME ESTABLISHED IN ARTICLE 38, SECTION 1 AS THE "SCHOOL
 WORKDAY FOR TEACHERS."
 
    AS TO THE SECOND ISSUE, THE ARBITRATOR PARTICULARLY NOTED THAT THE
 ACTIVITY CONCEDED THAT IT GRANTED RELEASE TIME TO TEACHERS TO ATTEND THE
 COMMITTEE MEETINGS AT THE AREA AND REGIONAL LEVELS.  THE ARBITRATOR
 CONCLUDED IN THIS RESPECT THAT THE PARTIES' NEGOTIATED AGREEMENT DID NOT
 PERMIT DISPARATE TREATMENT OF THE COMMITTEE MEETINGS AT THE SCHOOL
 LEVEL.  ACCORDINGLY, THE ARBITRATOR FOUND IN HER AWARD THAT THE ACTIVITY
 VIOLATED ARTICLE 31, SECTION 4 OF THE AGREEMENT BY REFUSING TO GRANT
 COMMITTEE MEMBERS RELEASE TIME TO ALLOW THEM TO ATTEND THE COMMITTEE
 MEETINGS AT THE SCHOOL LEVEL.  TO REMEDY THIS VIOLATION OF THE
 NEGOTIATED AGREEMENT, THE ARBITRATOR ORDERED IN PARAGRAPH 4 OF HER AWARD
 AS FOLLOWS:
 
    4.  MEMBERS OF THE AUGSBURG ELEMENTARY SCHOOL COMMITTEE SHALL BE PAID
 "EXTRA
 
    DUTY" COMPENSATION FOR THE TIME THEY HAVE SPENT SINCE SEPTEMBER 13,
 1977, OUTSIDE THE WORKDAY
 
    AS DEFINED BY ARTICLE 38, SECTION 1 IN ATTENDANCE AT COMMITTEE
 MEETINGS.
 
    THE AGENCY FILED A PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD
 PURSUANT TO THE RULES OF PROCEDURE SET FORTH IN 5 C.F.R. PART 2411
 (1978), WHICH, TO THE EXTENT CONSISTENT WITH THE PROVISIONS OF SECTION
 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5
 U.S.C. 7122(A)) AND AS AMENDED BY SECTION 2400.5 OF THE TRANSITION RULES
 AND REGULATIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY, 44 F.R. 44741,
 REMAIN OPERATIVE WITH RESPECT TO THIS CASE.  THE AGENCY REQUESTS THAT
 THE AUTHORITY ACCEPT ITS PETITION FOR REVIEW OF PARAGRAPH 4 OF THE
 ARBITRATOR'S AWARD ON THE BASIS OF ITS EXCEPTION WHICH IS DISCUSSED
 BELOW.  THE UNION DID NOT FILE AN OPPOSITION.
 
    IN ITS EXCEPTION TO THE AWARD, THE AGENCY CONTENDS THAT PARAGRAPH 4
 OF THE ARBITRATOR'S AWARD IS CONTRARY TO LAW AND REGULATION.  IN SUPPORT
 OF ITS EXCEPTION, THE AGENCY EXPLAINS THAT DEPARTMENT OF DEFENSE
 TEACHERS LOCATED IN OVERSEAS AREAS ARE COVERED BY THE DEFENSE DEPARTMENT
 OVERSEAS TEACHERS PAY AND PERSONNEL PRACTICES ACT (OVERSEAS TEACHERS PAY
 ACT), 20 U.S.C.901-907 (1976).  THE AGENCY ARGUES THAT NO PROVISION OF
 THIS LAW REQUIRES THE PAYMENT OF OVERTIME FOR TIME REQUIRED BY
 MANAGEMENT AND SPENT BY TEACHERS OUTSIDE THE INSTRUCTIONAL DAY.  THE
 AGENCY FURTHER ARGUES THAT THE IMPLEMENTING REGULATION TO THE ACT, DOD
 DIRECTIVE 1400.13, LIKEWISE MAKES NO PROVISION FOR THE PAYMENT OF
 OVERTIME.  THE AGENCY STATES THAT THIS REGULATION DOES PROVIDE FOR
 APPROPRIATE ADDITIONAL COMPENSATION FOR CERTAIN EXTRA-DUTY ASSIGNMENTS
 WHICH HAS BEEN ACCOMPLISHED BY A PAY SCHEDULE FOR "OTHER COMPENSATION"
 WHICH ALLOWS ADDITIONAL COMPENSATION, BUT ONLY WHEN 40 OR MORE HOURS AND
 THE DUTY PERFORMED IN THIS CASE WAS CURRICULAR IN NATURE RATHER THAN
 EXTRA-CURRICULAR.  THE AGENCY ALSO MAKES A DERIVATIVE ARGUMENT THAT
 BECAUSE THERE IS NO EXTRA COMPENSATION AUTHORIZED IN THIS CASE,
 COMPLIANCE WITH PARAGRAPH 4 OF THE AWARD WOULD VIOLATE THE BACK PAY ACT
 OF 1966.  /1/
 
    PURSUANT TO SECTION 2411.32 OF THE AMENDED RULES AND SECTION 7122(A)
 OF THE STATUTE, THE AUTHORITY WILL GRANT A PETITION FOR REVIEW OF AN
 ARBITRATION AWARD WHERE IT APPEARS, BASED ON THE FACTS AND CIRCUMSTANCES
 DESCRIBED IN THE PETITION, THAT AN EXCEPTION PRESENTS THE GROUND THAT
 THE AWARD VIOLATES LAW OR REGULATION.
 
    IN THIS CASE, HOWEVER, THE AGENCY'S PETITION FAILS TO DESCRIBE THE
 FACTS AND CIRCUMSTANCES NECESSARY TO SUPPORT ITS EXCEPTION THAT
 PARAGRAPH 4 OF THE ARBITRATOR'S AWARD, ORDERING THE PAYMENT OF
 ADDITIONAL COMPENSATION FOR THE TIME SPENT IN ATTENDANCE AT THE
 COMMITTEE MEETINGS OUTSIDE THE TEACHER'S WORKDAY, IS CONTRARY TO LAW OR
 REGULATION.  ALTHOUGH THE AGENCY CONTENDS THAT THE COMPENSATION ORDERED
 IN PARAGRAPH 4 OF THE AWARD IS CONTRARY TO LAW AND REGULATION, THE
 SUBSTANCE OF ITS SUPPORTING ARGUMENT IS SOLELY THAT "THERE IS NO
 PROVISION FOR PAYMENT OF COMPENSATION IN THE CIRCUMSTANCES INVOLVED
 HEREIN." HOWEVER, THE LAW, THE REGULATION, AND THE COMPENSATION SCHEDULE
 CITED BY THE AGENCY DO NOT DEMONSTRATE THAT PARAGRAPH 4 OF THE AWARD
 VIOLATES LAW OR REGULATION, BUT RATHER DEMONSTRATE ONLY THAT THE
 PARTICULAR LAW, REGULATION, AND COMPENSATION SCHEDULE CITED BY THE
 AGENCY DO NOT EXPRESSLY ADDRESS THE CIRCUMSTANCES OF THIS CASE--
 COMPENSATION FOR THE PERFORMANCE OF ADDITIONAL CURRICULAR ACTIVITIES.
 IN THIS REGARD THE OVERSEAS TEACHERS PAY ACT PROVIDES, IN PERTINENT
 PART, AS FOLLOWS:
 
    SEC. 902.  REGULATIONS OF SECRETARY OF DEFENSE
 
    (A) . . . THE SECRETARY OF DEFENSE SHALL PRESCRIBE AND ISSUE
 REGULATIONS TO CARRY OUT THE
 
    PURPOSES OF THIS CHAPTER.  SUCH REGULATIONS SHALL GOVERN--
 
   *          *          *          *
 
 
    (3) THE ENTITLEMENT OF TEACHERS TO COMPENSATION;
 
    (4) THE PAYMENT OF COMPENSATION TO TEACHERS;
 
   *          *          *          *
 
 
    (10) SUCH OTHER MATTERS AS MAY BE RELEVANT AND APPROPRIATE TO THE
 PURPOSES OF THIS CHAPTER.
 
    SEC. 903.  ADMINISTRATION-- EMPLOYMENT AND SALARY PRACTICES
 
    (A) THE SECRETARY OF EACH MILITARY DEPARTMENT IN THE DEPARTMENT OF
 DEFENSE SHALL CONDUCT
 
    THE EMPLOYMENT AND SALARY PRACTICES APPLICABLE TO TEACHERS AND
 TEACHING POSITIONS IN HIS
 
    MILITARY DEPARTMENT IN ACCORDANCE WITH THIS CHAPTER, OTHER APPLICABLE
 LAW, AND THE REGULATIONS
 
    PRESCRIBED AND ISSUED BY THE SECRETARY OF DEFENSE UNDER SECTION 902
 OF THIS TITLE.
 
   *          *          *          *
 
 
    (D) THE SECRETARY OF EACH MILITARY DEPARTMENT MAY PRESCRIBE AND ISSUE
 SUCH REGULATIONS AS
 
    HE DEEMS APPROPRIATE TO CARRY OUT HIS FUNCTIONS UNDER THIS CHAPTER.
 
    SIMILARLY, DOD DIRECTIVE 1400.13 PROVIDES, IN PERTINENT PART, AS
 FOLLOWS:
 
    V.  RESPONSIBILITIES
 
    A. THE ASSISTANT SECRETARY OF DEFENSE . . . SHALL:
 
   *          *          *          *
 
 
    2.  DEVELOP, ADOPT, AND FROM TIME TO TIME ADJUST, AS APPROPRIATE, A
 SINGLE UNIFORM
 
    COMPENSATION SCHEDULE, CONSISTENT WITH THE FOLLOWING:
 
   *          *          *          *
 
 
    D.  PROVIDE FOR APPROPRIATE ADDITIONAL COMPENSATION FOR CERTAIN
 EXTRA-DUTY ASSIGNMENTS
 
    NORMALLY ASSOCIATED WITH ELEMENTARY AND SECONDARY SCHOOL PROGRAMS.
 
    LIKEWISE, THE SCHEDULE FOR "OTHER COMPENSATION" BY ITS OWN TERMS, AS
 INDICATED BY THE AGENCY, DEALS NOT WITH CURRICULAR ACTIVITIES BUT RATHER
 WITH EXTRA-CURRICULAR ACTIVITIES.  THE AUTHORITY NOTES THAT THE OVERSEAS
 TEACHERS PAY ACT AND DOD DIRECTIVE 1400.13 BOTH GRANT BROAD DISCRETION
 TO THE AGENCY IN THE PROVISION OF COMPENSATION FOR TEACHERS.  IN TERMS
 OF THIS CASE, THE AUTHORITY ALSO NOTES THAT THE GRIEVANCE SUBMITTED TO
 ARBITRATION QUESTIONED THE PROPRIETY OF THE ACTIVITY'S SCHEDULING OF THE
 CURRICULUM COMMITTEE MEETINGS OUTSIDE THE SCHOOL WORKDAY FOR TEACHERS.
 F