13:0475(83)AR - DOD Dependents Schools and Overseas Education Association -- 1983 FLRAdec AR



[ v13 p475 ]
13:0475(83)AR
The decision of the Authority follows:


 13 FLRA No. 83
 
 DEPARTMENT OF DEFENSE
 DEPENDENTS SCHOOLS
 Agency
 
 and
 
 OVERSEAS EDUCATION ASSOCIATION
 Union
 
                                            Case No. 0-AR-367
 
                                 DECISION
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Millard Cass filed by the Agency under section 7122(a) of the
 Federal Service Labor-Management Relations Statute (the Statute) and
 part 2425 of the Authority's Rules and Regulations.  The Union filed an
 opposition to the Agency's exceptions.  /1/
 
    The dispute in this matter concerns the Agency's salary schedule for
 school year 1979-80.  A grievance was filed and ultimately submitted to
 arbitration disputing in a number of respects the consistency of the
 salary schedule with governing law, the Overseas Teachers Pay and
 Personnel Practices Act (the Act or Overseas Teachers Pay Act),
 specifically 20 U.S.C. 903(c).  /2/
 
    The parties were unable to agree on a joint submission of the issues
 for arbitration.  Consequently, the Arbitrator in accordance with the
 parties' agreement /3/ determined the issues to be resolved as those
 that were specifically addressed by the parties at the hearing.  The
 first issue addressed was whether the Agency acted properly in using
 salary data computed only as of the beginning of the school year of the
 school systems surveyed, rather than prorating the data for school
 systems which granted pay increases during the school year.  The
 Arbitrator determined that in order to be in compliance with the
 Overseas Teachers Pay Act, 20 U.S.C. 901-907, the Agency was required to
 use salary data that was prorated for those school systems which changed
 salary schedules during the school year.  As to the other issues
 addressed by the parties, the Arbitrator similarly determined that
 compliance with the Act and the parties' collective bargaining agreement
 required the Agency to establish a pay lane for a bachelor's degree plus
 15 credit hours (B.A. + 15) in the salary schedule.  He also determined
 that compliance with the Act required the Agency to use salary data from
 surveyed schools with a pay lane for educators with a certificate of
 advanced graduate studies or for educators called education specialists
 when it fixed the salary rates of the pay lane for a master's degree
 plus 30 credit hours (M.A. + 30) in the salary schedule.  Accordingly,
 the Arbitrator as his award sustained the grievance.
 
    The agency in its first exception to the award contends that the
 Arbitrator exceeded his authority by addressing an issue not properly
 submitted to arbitration.  Specifically, the Agency argues that the
 issue of the use of salary data pertaining to education specialists and
 educators with a certificate of advanced graduate studies was not
 properly submitted to arbitration and that the Arbitrator therefore
 exceeded his authority by requiring use of that salary data with respect
 to fixing the salary rates of the M.A. + 30 pay lane.
 
    The Authority concludes that the exception provides no basis for
 finding the award deficient.  As noted, there was no joint submission of
 the issues for arbitration.  Thus, the Arbitrator by express authority
 of the parties' agreement determined the issues to be resolved as those
 specifically addressed by the parties at the hearing including the
 dispute over the salary data for the M.A. + 30 pay lane.  Because the
 award is directly responsive to and properly confined to the issues as
 the Arbitrator framed them, the Agency fails to establish that the
 Arbitrator exceeded his authority.  See Department of Defense Dependents
 Schools and Overseas Education Association, 12 FLRA No. 14 (1983).
 
    In its second exception the Agency contends that by requiring the
 establishment of a B.A. + 15 pay lane, the award does not draw its
 essence from the parties' collective bargaining agreement.
 Specifically, the Agency argues that the bargaining history to the pay
 lane provision of the agreement makes it clear that the Arbitrator's
 interpretation of this provision manifestly disregards the agreement.
 However, this exception represents an attempt by the Agency to have its
 own interpretation and application of the pay lane provision substituted
 for that of the Arbitrator.  Consequently, the exception merely
 constitutes disagreement with the Arbitrator's interpretation and
 application of the agreement to find a B.A. + 15 pay lane warranted and
 provides no basis for finding that the award does not draw its essence
 from the agreement.  See Department of Health and Human Services, Social
 Security Administration, Louisville, Kentucky District and National
 Federation of Federal Employees, Local 1790, 10 FLRA No. 73 (1982).
 
    In its third exception the Agency contends that by requiring the use
 of salary data that is prorated for school systems which changed salary
 schedules during the school year, the award is contrary to the Overseas
 Teachers Pay Act.  In support the Agency principally maintains that the
 court in March v. United States, 506 F.2d 1306 (D.C. Cir. 1974)
 expressly held that the Act requires salaries of overseas teachers to be
 equivalent to present salaries of surveyed schools not past or future
 salaries.  Thus, the Agency argues that the award is contrary to the
 equality mandate of 20 U.S.C. 903(c) /4/ because it requires the use of
 future data rather than present salary data as of the beginning of the
 school year.  The Agency similarly argues that in cases such as this one
 where a majority of the surveyed school systems do not change salary
 schedules during the school year, there is no basis for requiring the
 Agency to use such prorated salary data.  The Agency further maintains
 that since March it has been recognized in Overseas Federation of
 Teachers v. United States, 674 F.2d 34 (D.C. Cir. 1982), that there
 necessarily exists a reasonable limit to the precision with which the
 salaries of overseas teachers need to be computed, and the Agency
 essentially argues that the Arbitrator exceeded that limit.
 
    The Authority concludes that the Agency has not established that by
 requiring the use of salary data that is prorated for school systems
 which changed salary schedules during the school year, the award is in
 any manner contrary to the Overseas Teachers Pay Act.  The Act expressly
 entitles overseas teachers to receive salaries "equal to" the "average"
 of those of the defined class of teachers.  20 U.S.C. 903(c);  March at
 1313.  The court in March further held that the clear purpose of the
 Act, as amended, was to guarantee the overseas teachers the same
 salaries they would receive for performing the same duties in stateside
 schools.  Id. at 1313.  In terms of this case, the Agency has not
 demonstrated that the Arbitrator's judgment that the equality mandate of
 the Act compelled consideration by the Activity of pay increases during
 the school year in school systems required to be surveyed is
 inconsistent with either the Act or the decision in March.  Likewise,
 the Agency has not substantiated that requiring the use of such prorated
 salary data reaches the "point of diminishing returns" where the
 administrative burden in gathering such data greatly exceeds the utility
 to be derived from its use.  See Overseas Federation of Teachers at 37.
 
    Accordingly, the Agency's exceptions are denied.
 
    Issued, Washington, D.C., December 9, 1983
 
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Union also filed an exception, but subsequently requested
 permission to withdraw that exception.  That request is hereby granted.
 
 
    /2/ 20 U.S.C. 903(c) (Supp. V 1981) obligates the Agency to
 
       fix the basic compensation for teachers and teaching positions . .
       . a