26:0362(43)AR - Overseas Federation of Teachers and DOD Dependents Schools, Mediterranean Region -- 1987 FLRAdec AR



[ v26 p362 ]
26:0362(43)AR
The decision of the Authority follows:


 26 FLRA No. 43
 
 OVERSEAS FEDERATION OF TEACHERS
 Union
 
 and
 
 DEPARTMENT OF DEFENSE DEPENDENTS 
 SCHOOLS, MEDITERRANEAN REGION
 Activity
 
                                            Case No. 0-AR-1152
 
                                 DECISION
 
                         I.  STATEMENT OF THE CASE
 
    This case is before the Authority on exceptions to the award of
 Arbitrator Thomas F. Carey filed by the Department of Defense Dependents
 Schools (the Agency) on behalf of the Activity under section 7122(a) of
 the Federal Service Labor-Management Relations Statute and part 2425 of
 the Authority's Rules and Regulations.  The Union filed an opposition to
 the exceptions.
 
                  II.  BACKGROUND AND ARBITRATOR'S AWARD
 
    The Arbitrator identified the issue in the grievance before him as
 whether the Activity violated the parties' collective bargaining
 agreement when management at the Naples High School assigned lunchroom
 monitoring duties to teachers.
 
    Article 21, Section 3 of the parties' agreement provides:
 
                         Article 21 Hours of Work
 
          Section 3.  Lunch Periods.  The Employer supports a duty free
       lunch period for employees and within available resources will
       attempt to provide such a program.
 
 The Union argued that under the agreement and past practice management
 was precluded from assigning teachers any lunchroom monitoring duty.
 
    The Arbitrator found that there were two questions to be addressed in
 resolving the grievance:  (1) whether unit employees were entitled to a
 duty-free lunch period under the parties' agreement and/or past
 practice;  and (2) whether the assignment of lunchroom monitoring duties
 to unit employees was violative of the agreement and/or past practice.
 
    As to (1), the Arbitrator determined that the teachers were entitled
 to a duty-free lunch period under the "clear and unambiguous language"
 of the parties' agreement.  The Arbitrator found that the duty-free
 lunch was a long-standing practice in the Naples High School and other
 dependents schools of the Activity.  The Arbitrator also found that the
 duty-free lunch provision was a fairly common benefit currently enjoyed
 by teachers who formerly were required to have their lunch with students
 and are now contractually entitled to their own duty-free lunch time.
 The Arbitrator noted that the pertinent provision in the parties'
 agreement in this case was conditioned by the phrase "within available
 resources," but determined that there was no showing that any
 "compelling need" had developed which either reduced available resources
 or precluded continuation of the practice of providing a duty-free
 lunch.  He further found that even assuming that there was a need to
 make some change in scheduling at the Naples High School, such a
 necessity would not relieve management of its obligation under the
 parties' agreement.  The Arbitrator concluded that management's failure
 to provide a duty-free lunch period for unit employees violated the
 parties' agreement.
 
    As to the second question, whether assignment of lunchroom monitoring
 duties to unit employees was precluded by the parties' agreement and
 past practice, the Arbitrator rejected the Union's contention that unit
 employees could not be assigned any lunchroom monitoring duties at any
 time.  The Arbitrator found that while teachers were entitled to a
 duty-free lunch period, Article 21, Section 3 was silent as to whether
 they could be assigned monitoring duties at other times and he declined
 to read such a requirement into the agreement.  The Arbitrator further
 found that the assignment of lunchroom duty was consistent with the
 teachers' job descriptions.  He also found that the parties had
 addressed the issue of lunchroom duty in impact and implementation
 bargaining and reached agreement that management would solicit
 volunteers for such duty.  According to the Arbitrator, the parties'
 impact and implementation agreement further provided that if sufficient
 volunteers were not available and if no other acceptable method of
 lunchroom coverage was found, the school principal had the authority to
 assign unit employees to monitor student lunchrooms.  The Arbitrator
 therefore rejected the Union's argument that management violated the
 agreement and past practice by assigning teachers to monitoring duties.
 
    As a remedy for the Agency's violation of Article 21, Section 3 of
 the parties' agreement by failing to provide a duty-free lunch period
 for teachers during the 1985-86 school year, the Arbitrator directed
 that:  "Teachers who did not have a duty free lunch period shall be
 compensated at the contractually established extra compensation rate
 (pro rated) for that function of the total teacher work day they
 actually were so assigned (not volunteered) to such duty.
 
                           III.  FIRST EXCEPTION
 
    A.  Contentions
 
    In its first exception, the Activity contends that the Arbitrator's
 award is contrary to section 7106(a)(2)(B) of the Statute.  In support
 of this contention, the Activity argues that the Arbitrator's award
 interferes with management's right under section 7106(a)(2)(B) to assign
 work during the employees' lunch period.
 
    B.  Analysis and Conclusion
 
    The Agency correctly states that section 7106(a)(2)(B) of the Statute
 reserves to management officials the authority to assign work.  However,
 we find that the Agency has failed to establish that the Arbitrator's
 award in this case violates that right.  The Arbitrator determined that
 the intent of the parties in agreeing to Article 21, Section 3 was that
 the Activity would provide teachers with a duty-free lunch period.  His
 award does not establish any particular lunch periods for teachers.
 Nothing in the award prevents management from scheduling their duty-free
 lunch periods so as to ensure that student lunchrooms are monitored by
 teachers if necessary.  Moreover, the award does not preclude the
 discontinuation of lunch periods in all circumstances.  For example, the
 award does not prohibit discontinuation of a duty-free lunch period in
 emergencies within the meaning of section 7106(a)(2)(D) of the Statute.
 On the contrary, the Arbitrator clearly provided for the discontinuation
 of a duty-free lunch period in circumstances described in the parties'
 collective bargaining agreement, that is, based on "available resources"
 and in other "compelling need" situations not present here.  As the
 Union maintains in its opposition to the Agency's exceptions, the
 Arbitrator's award in effect provides that where management determines
 that it is necessary to assign lunchroom monitoring work to teachers
 during the teachers' lunch period, management must compensate them for
 such extra-duty assignment under the applicable provision of the duties'
 collective bargaining agreement.  /1/
 
    We therefore conclude that the award does not violate management's
 right to assign work under section 7106(a)(2)(B) of the Statute as the
 Agency contends.  See American Federation of Government Employees,
 AFL-CIO, Local 3511 and Veterans Administration Hospital, San Antonio,
 Texas, 12 FLRA 76, 85-87 (1984) (Proposal 29).  /2/ In essence, the
 Agency's exception constitutes disagreement with the Arbitrator's
 interpretation and application of the parties' agreement.  It is well
 established that such disagreement provides no basis for finding an
 award deficient.  See, for example, Colorado Air National Guard, Buckley
 ANG Base and Association of Civilian Technicians, The Columbine Council,
 7 FLRA 3, 5-6 (1981);  American Federation of Government Employees,
 AFL-CIO, New York-New Jersey Council of District Office Locals, Social
 Security Administration and Department of Health and Human Services,
 Social Security Administration District Office Operations, 7 FLRA 413,
 415-417 (1981).
 
                           IV.  SECOND EXCEPTION
 
    A.  Contentions
 
    In its second exception, the Activity contends that the Arbitrator's
 award is contrary to the Back Pay Act, 5 U.S.C. Section 5596.  In
 support of this contention, the Activity argues that the Arbitrator did
 not make the requisite finding that but for an unwarranted or
 unjustified personnel action the employees would not have suffered a
 reduction or loss in pay, allowance, or differentials.
 
    The Agency further argues that the employees suffered no reduction or
 loss in pay.  In support of this argument, the Agency points out that
 the basic duty day for teachers, which is established in the parties'
 negotiated agreement, begins 20 minutes before the start of the first
 class and ends 30 minutes after the last class.  The Agency maintains
 that teachers are paid for that entire time, including their lunch
 periods, and are not entitled to extra compensation under Article 25 of
 the agreement because lunchroom duty did not occur outside that duty
 day.
 
    B.  Analysis and Conclusions
 
    It is well established that in order for an award of backpay to be
 authorized by the Back Pay Act, the arbitrator must determine that the
 aggrieved employee was affected by an unjustified or unwarranted
 personnel action, that the personnel action directly resulted in the
 withdrawal or reduction of the grievant's pay, allowances or
 differentials, and that but for such action the grievant otherwise would
 not have suffered the withdrawal or reduction.  For example, Department
 of Defense Dependents Schools, Panama Region and The Panama Canal
 Federation of Teachers, Local 29, 25 FLRA No. 51 (1987), slip op. at
 2-3.
 
    In this case, the Arbitrator expressly found that the Activity
 violated the parties' agreement by its failure to provide a duty-free
 lunch period to teachers.  Moreover, the Arbitrator effectively found
 that this unwarranted action directly resulted in a loss of pay to which
 the affected employees were entitled under the agreement.  In that
 latter regard, the Arbitrator's award of compensation effectively
 provides that teachers who did not volunteer but were assigned to
 monitor student lunchroom activities during the teachers' duty-free
 lunch periods were entitled to extra compensation for that function
 under the parties' negotiated agreement.  Contrary to the Agency's
 assertion that the affected teachers were not entitled to extra
 compensation under Article 25 of the agreement because the lunchroom
 monitoring occurred during the basic work day, the Union establishes in
 its opposition that teachers are paid additional compensation for a
 number of extra-duty assignments performed during their lunch periods,
 including serving as sponsors of the National Honor Society, Junior
 Class, Senior Class, school newspaper, yearbook and various clubs.  /3/
 We find that the Agency's argument that teachers are not entitled to
 backpay for lunchroom monitoring duties in this case constitutes nothing
 more than disagreement with the Arbitrator's interpretation and
 application of the parties' agreement.  This argument provides no basis
 for finding an award deficient under the Statute.  We conclude that the
 Agency has failed to establish that the Arbitrator's award is contrary
 to the Back Pay Act.
 
                               V.  DECISION
 
    For the above reasons, the Agency's exceptions are denied.
 
    Issued, Washington, D.C., March 20, 1987.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) Article 25 of the parties' agreement, which governs extra-duty
 assignments, provides in part:
 
          Section 1.  Policy.  Extra duty assignments of a reimbursable
       nature shall be open to all employees.  Assignments will be made
       on an equitable basis.  Compensation will be in accordance with
       regulation and established salary schedule.
 
    The Agency notes that DOD Directive 14