16:0276(40)AR - Overseas Education Association and DOD Dependents Schools, Mediterranean Region -- 1984 FLRAdec AR



[ v16 p276 ]
16:0276(40)AR
The decision of the Authority follows:


 16 FLRA No. 40
 
 OVERSEAS EDUCATION ASSOCIATION
 Union
 
 and
 
 DEPARTMENT OF DEFENSE DEPENDENTS
 SCHOOLS, MEDITERRANEAN REGION
 Activity
 
                                            Case No. O-AR-399
 
                                 DECISION
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Jacob Seidenberg filed by the Agency under section 7122(a) of
 the Federal Service Labor-Management Relations Statute and part 2425 of
 the Authority's Rules and Regulations.
 
    The dispute before the Arbitrator concerned the step placement for
 school year 1980-81 of the grievant in the salary schedule under the
 Overseas Teachers Pay and Personnel Practices Act (the Act or Overseas
 Teachers Pay Act), 20 U.S.C. 901-907.  The Arbitrator in his discussion
 explained that the grievance arose when the grievant at his own request
 was transferred from an administrative position, which is classified and
 compensated under the general schedule, to a teaching position, which is
 classified and compensated under the Overseas Teachers Pay Act.
 Although the grievant had approximately 20 years of creditable service,
 he was credited with a maximum of only 10 years and placed at step 11 of
 the salary schedule.  Maintaining that he had previously been placed by
 virtue of his creditable service at step 15 during school years 1976-77,
 1977-78, and 1978-79, the grievant claimed that he should again have
 been placed at step 15, and a grievance was filed and submitted to
 arbitration.
 
    The Arbitrator determined that the core issue was whether the
 Activity had a valid evidentiary basis under the Overseas Teachers Pay
 Act and its implementing regulation, DOD Directive 1400.13, for holding
 that 10 years service was the maximum credit that could be granted
 teachers re-entering the overseas teachers pay system.  The Arbitrator
 specifically recognized that the pertinent provision of the directive
 provided for "service up to the maximum specified for the current school
 year," and that the salary schedule issued for school year 1980-81
 stated that the maximum number of years of creditable service was 10
 years.  However, he noted that the directive had been modified after the
 court decision in March v. U.S., 506 F.2d 1306 (D.C. Cir. 1974), to
 institute the practice, which the court in March held was the intent of
 Congress in enacting the Overseas Teachers Pay Act, of crediting years
 of teaching experience equivalent to the prevailing practice of the
 school systems surveyed under the Act.  In this respect the Arbitrator
 concluded that the Activity had not introduced any probative evidence to
 show or support its position that 10 years was the maximum amount of
 creditable service being granted stateside school teachers in surveyed
 school systems and consequently was the maximum creditable amount of
 experience permitted under the directive.  In addition, the Arbitrator
 noted that the Union had obtained specific information from seven
 surveyed school systems, the prevailing practice of which was to place
 those returning to teaching on a step of the salary schedule that was no
 lower than the highest step at which they previously had been placed
 before they left their teaching position.  With respect to the Union's
 survey, the Arbitrator held that it was too limited to be dispositive,
 but at the same time he stated that it could not be ignored.  In sum,
 the Arbitrator identified the dispositive aspects of this case as the
 failure of the Activity to support with substantial probative evidence
 its position that 10 years was the maximum amount of creditable service
 that could be allowed under DOD Directive 1400.13 and as the absence of
 substantial proof as to the prevailing practice in surveyed school
 systems.  In these circumstances the Arbitrator consequently held that
 the grievant should have been placed at step 15 because that was the
 step at which the Activity previously placed him when he returned to
 teaching positions.  Accordingly, the Arbitrator directed the grievant's
 placement at step 15 of the salary schedule retroactive to October 10,
 1980, with back pay.
 
    In its first exception the Agency contends that the award is contrary
 to regulation.  The Agency primarily argues that the pertinent
 provisions of DOD Directive 1400.13 together with the applicable annual
 salary schedule supplement limited creditable service to a maximum of 10
 years, resulting in a step 11.  Because the award directed the
 grievant's placement at step 15, the Agency argues that the award is
 clearly contrary to regulation.
 
    Without deciding whether the regulations set forth by the Agency
 constitute a "rule, or regulation" within the meaning of section
 7122(a)(1) of the Statute, the Authority finds that in the circumstances
 of this case, the Agency fails to establish that the award is contrary
 to the cited regulations.  As noted, the essence of the award is that
 the grievant should be placed at step 15 "because that was the step the
 (Activity) placed him previously when he returned to the teaching
 ranks." The basis for the Arbitrator's ordering the Activity to follow
 its previous actions with respect to the grievant, at times when the
 regulations cited by the Agency in its exceptions were extant, was the
 Activity's failure to substantiate that its disputed action of placing
 the grievant at step 11, which deviated from its consistent prior
 actions, was the step placement required by those same regulations.
 More specifically, as already noted, the Arbitrator expressly held that
 the Activity had not introduced any probative evidence to support its
 position that 10 years was the maximum amount of creditable service
 being granted stateside school teachers in surveyed school systems and
 consequently was the maximum creditable amount of experience permitted
 under the terms of the directive.  See 20 U.S.C. 902-903;  March v.
 U.S., 506 F.2d 1306 (D.C. Cir. 1974);  see generally Department of
 Defense Dependents Schools and Overseas Education Association, 13 FLRA
 No. 83 (1983) (discussion of the equality mandate and the purposes of
 the Overseas Teachers Pay Act).  In such circumstances the Agency has
 not shown that in absence of substantial proof of the prevailing
 practice in surveyed school systems, the Arbitrator improperly directed
 the Activity to place the grievant for step purposes as it had
 consistently placed him previously under the directive.  The Agency in
 its exception, as had the Activity before the Arbitrator, has failed to
 provide any substantiation of the application of the regulations to the
 grievant for school year 1980-81 to require a maximum amoun