22:0597(65)AR - DOD Dependents School, Pacific Region and Overseas Education Association -- 1986 FLRAdec AR
[ v22 p597 ]
The decision of the Authority follows:
22 FLRA No. 65 DEPARTMENT OF DEFENSE DEPENDENTS SCHOOLS (DoDDS), PACIFIC REGION Activity and OVERSEAS EDUCATION ASSOCIATION (OEA) Union Case No. 0-AR-985 ORDER DISMISSING EXCEPTIONS I. STATEMENT OF THE CASE This matter is before the Authority on exceptions to the award of Arbitrator Herbert Oestreich filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. Because the exceptions presented an issue of the Authority's jurisdiction, the Authority requested and received from the parties statements of position on this issue. II. BACKGROUND AND ARBITRATOR'S AWARD The grievance in this case concerned the removal of the grievant, a teacher in the Department of Defense Overseas Dependents Schools System, who apparently is not a preference eligible. As his award the Arbitrator denied the grievance finding that management had proved by a preponderance of the evidence that the grievant's removal was for just cause. III. ANALYSIS AND CONCLUSIONS The Authority has determined that it is without jurisdiction to review the Union's exceptions. Section 7122(a) of the Statute pertinently provides: 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). As relevant to this case, the matters described in section 7121(f) of the Statute /1/ include matters similar to those covered under 5 U.S.C. Section 7512, such as removal actions, which arise under other personnel systems. In this case, for the reasons which follow, the Authority concludes that the award relates to a matter that is similar to those covered under section 7512 and that the matter has arisen under another personnel system within the meaning of section 7121(f). The legislative history of the Statute provides one specific example of "(an)other personnel syste(m)." The report of the Senate Governmental Affairs Committee preceding the enactment of the Statute in explaining the identical reference in section 7121(e) of the Statute /2/ used as an example the personnel system established by 38 U.S.C. Sections 4101-4119 for Department of Medicine and Surgery (DM&S) professional employees of the Veterans Administration. S. Rep. No. 95-969, 95th Cong., 2d Sess. 110 (1978). In VA Medical Center, Northport, New York v. FLRA, 732 F.2d 1128 (2d Cir. 1984), the court noted some of the features of this personnel system which distinguishes it from the general Federal civil service. Specifically, the court noted that qualifications for DM&S professionals are determined "without regard to civil service regulations," 38 U.S.C. Section 4106(a); DM&S professionals have a different probationary period than other civil service employees, 38 U.S.C. Section 4106(b); their hours, conditions of employment, and leaves of absence are determined "notwithstanding any law, Executive Order, or regulation," 38 U.S.C. Section 4108(a); and they are paid according to special grades and scales, 38 U.S.C Section 4107." Id. at 1130 n.4. Using this personnel system as a benchmark, the Authority concludes that the Defense Department Overseas Teachers Pay and Personnel Practices Act (the Act), Pub. L. No. 86-91, 73 Stat. 214 (1959), 20 U.S.C. Sections 901-907, likewise established a "personnel syste(m)," within the meaning of section 7121(f), for teachers in schools operated by the Department of Defense (DOD) in an overseas area for dependents of members of the Armed Forces and dependents of civilian employees of DOD. As a matter of background, the court in March v. U.S., 506 F.2d 1306 (D.C. Cir. 1974), explained that overseas dependents schools were established after World War II to provide educational facilities abroad for dependents of military and civilian personnel. Id. at 1311. Until 1959 the teachers in these schools were subject to civil service laws and regulations which had created a number of inequities. Id. (citing S. Rep. No. 141, 86th Cong., 1st Sess. 2 (1959)). As a result Congress sought to correct this situation of inequities by enacting legislation to specifically address the employment and salary practices of DOD respecting overseas teachers. Id. The statutory enactment, as specifically entitled, includes "personnel practices," and the Senate report that accompanied the bill that was enacted and signed into law specifically stated that the purpose of the bill was "to provide a system of personnel administration for school-teachers and certain school officers and other employees of the dependents schools operated by (DOD) in overseas areas." S. Rep. No. 141, 86th Cong., 1st Sess. 1 (1959). The report also stated that"(t)he proposed system recognizes and corrects deficiencies in the present system which (DOD) has identified and which long have been apparent." The major provision and means enacted to correct the deficiencies was to no longer generally subject such teachers to civil service laws and regulations as the source of their personnel system and instead to have the Secretary of Defense prescribe and issue regulations to provide for a system of personnel administration. Under the specific provision of 20 U.S.C. Section 902(a), such regulations shall govern: "(1) the establishment of teaching positions; (2) the fixing of basic compensation for teachers and teaching positions . . .; (3) the entitlement of teachers to compensation; (4) the payment of compensation to teachers; (5) the appointment of teachers; (6) the conditions of employment of teachers; (7) the length of the school year . . .; (8) the leave system for teachers; (9) quarters, allowances, and additional compensation for teachers; and (10) such other matters as may be relevant and appropriate to the purposes of this chapter." Thus, as noted by the court in March, DOD, pursuant to the Act, has promulgated regulations to "conduct the employment and salary practices applicable to teachers and teaching positions." 506 F.2d at 1311-12 (quoting Act of July 17, 1959, Pub. L. No. 86-91, Section 5(a), 73 Stat. 214). As noted with respect to DM&S professionals, the source of their personnel system in large measure is not general civil service laws and regulations, but instead is 38 U.S.C. chap 73. Because the sources of the "employment and salary practices" applicable to overseas teachers, similar to the situation of DM&S professionals, are the Act and the regulations of the Secretary of Defense prescribed by and issued pursuant to the Act, and not civil service laws and regulations generally, the Authority finds the "system of personnel administration" for overseas teachers, S. Rep. No. 141, 86th Cong., 1st Sess. 1 (1959), to be "(an)other personnel syste(m)" within the meaning of section 7121(f). Consequently, the Arbitrator's award relating to the grievant's removal relates to a matter described in section 7121(f). Under section 7122(a), exceptions to the Arbitrator's award may not be filed with the Authority, and therefore the Authority is without jurisdiction to review the Union's exceptions. IV. ORDER Accordingly, for these reasons, the Union's exceptions are dismissed. Issued, Washington, D.C., July 15, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) Section 7121(f) pertinently provides: In matters similar to those covered under sections 4303 and 7512 of this title which arise under other personnel systems and which an aggrieved employee has raised under the negotiated grievance procedure, judicial review of an arbitrator's award may be obtained in the same manner and on the same basis as could be obtained of a final decision in such matters raised under applicable appellate procedures. (2) Section 7121(e)(1) pertinently provides: Matters covered under sections 4303 and 7512 of this title which also fall within the coverage of the negotiated grievance procedure may, in the discretion of the aggrieved employee, be raised either under the appellate procedures of section 7701 of this title or under the negotiated grievance procedure, but not both. Similar matters which arise under other personnel system applicable to employees covered by this chapter may, in the discretion of the aggrieved employee, be raised either under the appellate procedures, if any, applicable to those matters, or under the negotiated grievance procedure, but not both.