31:0080(14)AR - Overseas Education Association and DODDS, Atlantic Region -- 1988 FLRAdec AR



[ v31 p80 ]
31:0080(14)AR
The decision of the Authority follows:


 31 FLRA NO. 14

OVERSEAS EDUCATION ASSOCIATION

              Union

      and

DEPARTMENT OF DEFENSE DEPENDENTS
SCHOOLS, ATLANTIC REGION

              Agency

                                         Case No. O-AR-1363

                         DECISION

     I. Statement of the Case

     This matter is before the Authority on exceptions to the
award of Arbitrator Stanley H. Sergent, Jr. filed by the Agency
under part 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.

     The Arbitrator found that the increase in the number of
classes the grievant was required to teach was not a change in
the conditions of her employment or a violation of past practice.
Rather, he found that the change was an exercise of management's
rights under section 7106 of the Statute. However, he also found
that there were no  precise standards in the parties' collective
bargaining agreement, law or regulation to enable him to resolve
the issue of whether the grievant was entitled to a salary
increase. The Arbitrator directed the parties to initiate the
necessary action to have a wage survey conducted and the results
applied retroactively to the grievant. He also sustained the
Union's claim for official time and travel expenses for one of
its witnesses but denied the Union's request for attorney fees.

     The Agency alleges that the award is contrary to law and
that the Arbitrator exceeded his authority. We conclude that the
Agency has failed to establish that the award is deficient as
alleged. However, the award must be modified to provide
that the results of any wage survey conducted as a consequence of
the Arbitrator's award are to be applied to the grievant
prospectively.

     II. Background

     The grievant is a teacher of home economics at the
Lakenheath High School in England. She was hired as a half-time
teacher to teach three class periods out of a six class period
instructional day. At the beginning of the 1985-86 school year,
the instructional day was increased to seven class periods and
each class period was reduced from 55 to 45 minutes. The grievant
was notified that because of the increase in the number of class
periods in the instructional day and the increase in the
enrollment in home economics, she was to teach four class periods
each day. The grievant did not receive any pay increase for
teaching the additional class period. The Union requested
bargaining over the change in the grievant's working conditions
under Article 7 of the parties' collective bargaining agreement.
Article 7 establishes the contractual procedure regarding
notification to the Union about proposed changes in working
conditions of bargaining unit employees and the obligation of the
parties to negotiate over those changes. The Agency did not
bargain with the Union over the alleged changes in the grievant's
conditions of employment.

     A grievance was filed protesting the increase in the
grievant's duties. The grievance alleged that by increasing the
number of class periods that the grievant was required to teach,
the Agency changed her conditions of employment and violated a
long-standing past practice of requiring half-time teachers to
teach only three class periods in the instructional day. The
grievance also alleged that as a result of the increase in the
number of class periods the grievant was required to teach, she
was teaching approximately two-thirds of the instructional day
for half pay. The Union alleged that "(t)his change was
implemented contrary to the governing contractual procedures,
and, further, is in conflict with DODDS' directives and/or salary
setting guidelines." Award at 3. As a remedy, the Union
requested: (1) that the grievant's three class period schedule be
reinstated until the Agency complied with Article 7 of the
parties' agreement; (2)  that the grievant receive pay calculated
at two-thirds of the daily rate for similarly, situated full-time
teachers rather than at one-half of the daily rate for the time
during which she taught the four class periods; and (3) "any . .
. other relief that an arbitrator may deem necessary or
appropriate." Award at 3. The grievance was submitted to
arbitration.  

     III. The Arbitrator's Award

     The parties were unable to agree on the formulation of an
issue. Consequently, each party submitted a separate statement of
the issue or issues in the case to the Arbitrator.

     The Union submitted the following issue:

     Did the management of the Department of Defense Dependents
     Schools violate the collective bargaining agreement with the OEA
     or applicable law, government regulations, directives, or
     policies by unilaterally assigning half-time teachers, including
     (the grievant), an additional class period thereby requiring the
     teachers to work more than half-time for one-half pay?

     Award at 5-6.

     The Agency submitted the following issues:

     1. Is the issue an appropriate matter for a national level
     grievance under the negotiated agreement?

     2.  If so, was the grievance timely filed?

     3. If so, was the assignment of (the grievant) to teach four
     periods outside of management's authorization or otherwise
     improper?

     4. If so, what relief, if any, is appropriate under the
     negotiated contract?

Award at 6.

     As to its first two issues, the Agency argued that: (1) it
was inappropriate for the Union to file a national level
grievance because the grievance involved individual and local
issues; (2)  the grievance was untimely under the parties'
agreement; and (3) the Union's failure to arbitrate an earlier
similar grievance precluded it from processing this grievance.
The Arbitrator rejected the Agency's procedural arguments and
found that the grievance was timely filed and arbitrable. Award
at 15-20. 

     As to the merits of the dispute, the Arbitrator found that
the parties' different formulations of the issue were "largely
differences in form rather than substance" and that both focused
on the question of the right of management to assign the grievant
an additional class period without a corresponding increase in
pay. The Arbitrator expressed the issue as whether the assignment
of the grievant to teach four class periods was beyond the scope
of management's authority or otherwise improper under the
parties' negotiated agreement, or applicable law or regulations.
Award at 20.

     On the merits, the Union made two basic contentions before
the Arbitrator. First, the Union contended that the Agency's
decision to increase the number of class periods that half-time
teachers would be required to teach changed an established past
practice of requiring half-time teachers to teach only three
class periods per instructional day. Award at 24. The Union
maintained, therefore, that because a teacher's duty hours and
class load are within the definition of "conditions of
employment," the Agency was obligated under the parties'
agreement to give notice to and bargain with the Union prior to
changing the grievant's schedule.

     The Arbitrator found that the grievant's new duty day was
less than half of a full-time teacher's duty day and only 5
minutes longer than the day she was required to work under her
original schedule. Award at 23. The Arbitrator concluded that the
change in the grievant's schedule did not constitute a violation
of an established past practice or a significant change in a
condition of employment. Rather, the Arbitrator found that the
change was a proper exercise of management's rights under section
7106 of the Statute and, therefore, that the Agency was not
obligated to provide the Union with an opportunity to bargain
under the parties' agreement. Award at 25-26.

     The Union contended that the Agency's part-time pay policies
and practices were not in accordance with the Overseas Teachers
Pay Act, 20 U.S.C. 901-907 (the Act). Award at 26. In support of
this contention, the Union made four arguments.

     First, the Union argued that the Act requires that the basic
rate of compensation for overseas teachers must be equal to that
of similarly situated Stateside teachers. Award at 26; Union Post
- Hearing Brief at 16-17. The Agency argued that its pay policies
were fully justified and in concert with the Act and that no 
changes should be made in its policy unless the equivalency
standard was shown to be violated by means of a proper
Wage Fixing Authority (WFA) survey of stateside practices. Award
at 27. The Arbitrator determined, based on March v. United
States, 506 f.2d 1306 (D.C. Cir. 1974), that the salary and pay
practices for overseas teachers must be equivalent to their
Stateside counterparts. Award at 27.

     Second, the Union argued that the Agency had not met its
burden of proof to establish that its part-time pay policies and
practices conformed to Stateside standards. Award at 26; Union
Post - Hearing Brief at 17-19. The Agency argued that its policy
of paying all part-time teachers at one-half of the corresponding
rate of full-time teachers regardless of the teaching load or the
hours required of the part-time teachers was consistent with law
and regulation. Union Post - Hearing Brief at 17-18. The Agency
argued that its practice was in accordance with section 902 of
the Act, the Department of Defense (DOD) implementing regulation,
DOD Directive 1400.13.21, and a Department of Defense Dependents
Schools (DODDS) Wage Fixing Authority report in that only two
categories of teachers (full-time and part-time) and two rates of
pay (full pay and half pay) are set forth. Union Post - Hearing
Brief at 18. The Union pointed out to the Arbitrator that the WFA
report relied on by the Agency applied to half-time substitute
teachers and not to permanent part-time teachers, Union Post -
Hearing Brief at 18 n.23, and was, therefore, not an accurate
reflection of the Stateside practice regarding part-time teachers
in the grievant's situation. Union Post - Hearing Brief at 19.

     In resolving the Union's second argument, the Arbitrator
determined that it would be unreasonable and unfair to conclude
that the Agency had failed to meet its burden of proof that its
part-time pay policy conformed to Stateside standards. Award at
27. The Arbitrator reasoned that since the grievant's duty day
did not exceed one-half of the hours worked by a full-time
teacher, the Agency had "properly relied upon the information it
extrapolated from DOD and WFA guidelines" in setting the rate of
her pay at one-half of that of a full-time teacher based on the
number of hours she worked. Award at 27.

     However, the Arbitrator distinguished the question of
whether the grievant was entitled to additional pay for the
number of hours in her duty day from the question of whether she
was entitled to additional pay for the increase in her duties,
specifically the number of classes she was required to teach.
Award at 27 and 29. As to the latter issue, the 
Arbitrator found that the information relied on by the Agency did
not answer the question of the rate of pay due the grievant based
on the number of classes taught because "no  precise standard
existed to govern the issue at the time it arose." Award at 27.

     Third, the Union argued that it had conducted an independent
survey covering each of the WFA survey school districts to
determine the prevailing practice regarding rates of pay and
working hours of Stateside part-time teachers. Award at 26. The
Union contended that its survey established that Stateside
part-time teachers who worked more than one-half of the
instructional day received more than one-half pay of a full-time
teacher. Union Post - Hearing Brief at 20. Therefore, the Union
argued that the Agency's pay policies and practices were in
violation of the Act because they were inconsistent with the
prevailing Stateside standards.

     The Arbitrator determined that the results of the Union's
survey were neither persuasive nor dispositive because, among
other things, it did not address the issue present in this case,
that is, the pay policy for part-time teachers whose duty day was
less than one-half of a full-time teacher's duty day but who were
required to teach two-thirds of the total class periods in the
instructional day. Award at 28.

     Fourth, the Union argued that the grievant's duty assignment
and rates of pay were not fair, reasonable, or equitable and were
in conflict with the prevailing Stateside practice. Award at 26,
29; Union Post - Hearing Brief at 22-25. Specifically, the Union
argued that the Agency had conceded that a class load of four
instructional periods should be compensated at two-thirds the
rate of pay of a full-time teacher. Union Post - Hearing Brief at
25.

     In resolving the Union's argument that the grievant should
receive additional compensation for teaching two-thirds of the
classes in the instructional day, the Arbitrator found that
neither the parties' agreement nor the applicable laws and
regulations offered definitive guidance. Award at 29. He noted
that without such guidance he was left to speculate with regard
to the resolution of the issue of whether the grievant should
receive additional compensation for teaching four class periods.
Award at 29.

     The Arbitrator concluded that since there were no  precise
standards in the agreement, law, regulation or WFA schedules,
there was no  basis on which he could decide the pay
dispute. He further determined that the dispute could be resolved
consistent with the parties' agreement, law and regulations by
the parties initiating a WFA survey addressing the issue. In
reaching this determination, the Arbitrator noted that the Agency
had indicated in its post-hearing brief that the parties had
agreed to initiate a WFA survey to determine the rates of pay for
part-time teachers in Stateside schools.

     As his award, the Arbitrator directed the parties "to
initiate the necessary action through the offices of the WFA to
survey (S)tateside schools for the purpose of ascertaining the
pay policies and practices with regard to the matter of
compensation for part-time teachers whose duty time is less than
one-half of that of a full-time teacher, but whose class
assignments are greater than one-half of those of a full-time
teacher." Award at 33. He also directed that the results of the
survey were to be applied retroactively to the grievant and he
retained jurisdiction to resolve any disputes which arose over
(1) the formulation or implementation of the survey or (2)  its
application to the grievant. The Arbitrator also ruled that one
of the Union's witnesses at the arbitration hearing was entitled
to official time and reimbursement for travel expenses and denied
the Union's request for attorney fees.

     IV. First Exception

     A. Contentions

     The Agency contends that the Arbitrator's award is contrary
to law. In support of this contention, the Agency asserts that
the Arbitrator concluded that overseas teachers' pay at all
levels and at all times must be the mirror image of U.S.
teachers' pay. The Agency argues that in interpreting section 902
of the Overseas Teachers Pay Act, the court in March did not
mandate that overseas teachers' salaries were to be exactly equal
to Stateside teachers' salaries and did not address procedures
for changing pay policy.

     The Agency further argues that DOD has broad discretionary
authority under the Act to regulate the compensation of teachers.
The Agency relies on a decision of the Comptroller General in E.
Kay Weger and Martha Wilson, Comp. Gen. No.  B-223389 (Sept. 19,
1986) (unpublished), as substantiating the authority of DOD to
establish pay schedules of overseas teachers. The Agency also
maintains that the parties and the WFA had agreed on a procedure
for effecting pay policy changes and such changes had always been
prospective. The Agency acknowledges that the procedure
is not mandated by the Act or the court's decision in March, but
argues that precipitous policy changes cause administrative
burdens and do not meet the intent of the Act.

     B. Analysis and Conclusion

     We find that the Agency has failed to establish that the
Arbitrator's award is contrary to the Overseas Teachers Pay Act.
However, for the reasons stated below, the award must be modified
to provide that the results of any WFA survey are to be applied
to the grievant prospectively.

     Contrary to the Agency's argument, the Arbitrator did not
find that the pay of overseas teachers had to be the mirror image
of the pay of U.S. teachers at all levels and at all times. The
Arbitrator found that under section 902(a)(2) of the Act, the WFA
must fix the basic compensation for teachers at rates equal to
the average rates of compensation for similar positions of a
comparable level in urban school districts in the United States.
Award at 21. That is the language of the statutory provision.

     The Arbitrator's further finding that the salary and pay
practices for overseas teachers must be equivalent to that of
their Stateside counterparts and his interpretation of the
court's decision in March, Award at 26-27, are consistent with
the Act and the court's decision. As the Agency acknowledges in
its exception, 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 overseas teachers the same salaries they would
receive for performing the same duties in Stateside schools. Id.;
Department of Defense Dependents Schools and Overseas Education
Association, 13 FLRA  475, 477 (1983). We note that the court in
March specifically found that the daily rate paid to overseas
teachers is an integral part of their "basic compensation" and
that Congress intended the statutory equality mandate to apply to
all elements of teachers' basic compensation in order to put them
on a par with their Stateside counterparts. March at 1319.
Therefore, the Agency has not substantiated its assertion that
the Arbitrator's interpretation of the Overseas Teachers Pay Act
and the decision in March are contrary to law.

     The Agency also has not substantiated its claim that the
Arbitrator's findings concerning the pay entitlement of overseas
teachers interferes with DOD's discretionary authority
to regulate compensation for those teachers. The Arbitrator found
that the Agency had "acted in good faith and in accordance with
the best authority available to it at the time" in paying the
grievant one-half of a full-time teacher's salary based on the
number of hours she worked. Award at 27. However, as indicated
above, the Arbitrator was not persuaded by the evidence submitted
by the parties in support of their respective positions with
regard to the compensation due the grievant based on the number
of classes she taught. He found that there were no  precise
standards in the parties' agreement, law, regulation or WFA
schedules to govern disposition of the issue of the appropriate
compensation for a teacher in the grievant's employment
situation, that is, teaching less than one-half of the hours
required of a full-time teacher but teaching two-thirds of the
class load of a full-time teacher. Therefore, because of the
absence of persuasive evidence and dispositive authority, the
Arbitrator concluded that he was unable to determine whether the
grievant was being properly paid in accordance with comparable
Stateside practice based on the number of classes she was
required to teach. Such a finding does not in any way interfere
with the Agency's discretion. Rather, such a finding merely
confirms the statutory mandate, as recognized by the courts and
the Authority, that overseas teachers must receive salaries equal
to the average salaries of similarly situated Stateside
teachers.

     As noted, the Agency relies on the decision of the
Comptroller General in E. Kay Weger in support of its position.
In his decision, the Comptroller General recognized that DOD's
policy was that "the pay of part-time teaching positions be fixed
at one-half the rate of corresponding full-time positions. . . ."
The Comptroller General found that there was nothing in the
record in the dispute before him "to demonstrate that this policy
has caused the basic compensation of part-time DOD teaching
positions to be fixed at rates which are not equal to the average
range of rates for similar part-time positions that may exist in
urban school districts in the United States. Hence, we have no 
basis for concluding that this policy is prohibited by statute or
is otherwise invalid." The Comptroller General determined that
since the claimants in the dispute had been paid in accordance
with the DOD policy and the terms of their employment agreements,
he was unable to conclude that they were underpaid or entitled to
backpay. He therefore denied their claims.

     The Arbitrator's conclusion in the case before us that he
was unable to determine on the record before him whether or not
the grievant was properly paid under the Overseas 
Teachers Pay Act based on the number of classes she was required
to teach and that a WFA survey would serve to resolve the
question is not inconsistent with the Comptroller General's
findings and conclusions, which were based on the record in that
matter. The Arbitrator did not find that the Agency's pay policy
as applied to the grievant was contrary to law or otherwise
invalid. Rather, like the Comptroller General, he concluded that
there was no  basis in the record before him on which he could
make a finding that the grievant was improperly paid. However,
unlike the Comptroller General, he determined that more
information was necessary to decide the dispute rather than
denying the grievant's claim. We find nothing in the Comptroller
General's decision that would have required the Arbitrator to
deny the grievance.

     Thus, merely because the Comptroller General found, based on
the facts and circumstances in the E. Kay Weger case, that he was
unable to conclude that the employees were underpaid, does not
establish that the Arbitrator in this case erred as a matter of
law in finding, based on the facts and circumstances before him,
that he was unable to decide whether the grievant was properly
paid.

     Additionally, unlike the claimants in the dispute before the
Comptroller General, who had been informed in advance of their
employment that they would be required to teach four class
periods in a seven-class instructional day, the grievant in the
case before us taught a three-class schedule for 2  school years
before being changed to a four-class schedule. Thus, the
employment agreements of the claimants in the case before 
the Comptroller General and that of the grievant in this case 
are distinguishable.

     Furthermore, the Comptroller General's finding that the
Agency's policy of paying part-time teachers one-half of the
compensation of full-time teachers regardless of the number of
hours or classes taught was not prohibited by the Overseas
Teachers Pay Act does not mean that the Comptroller General found
that the disputed policy is mandated by the Act. The
congressional mandate is that overseas teachers must be paid at a
rate equal to the average rate of pay of similarly situated
Stateside teachers. The Comptroller General's decision does not
preclude the Agency from exercising its discretion under the Act
by another policy, for example, a policy of paying part-time
teachers based on the number of classes taught, as long as the
policy results in the teachers being paid at a rate equivalent to
that of similarly situated Stateside teachers. Therefore, we
conclude that the Comptroller General's resolution of the
specific claims before him in E. Kay Weger is not dispositive of
this dispute. 

     In his award, the Arbitrator directed that the results of
the WFA survey were to be applied retroactively to the grievant.
In order for an award of backpay to be authorized under the Back
Pay Act, 5 U.S.C. 5596, an arbitrator must determine that the
aggrieved employee was affected by an unwarranted or unjustified
personnel action and that such unwarranted action directly
resulted in the withdrawal or reduction in the pay, allowances,
or differentials that the employee would have otherwise received.
For example, Social Security Administration and Local 1760,
American Federation of Government Employees, AFL - CIO, 17 FLRA 
1063, 1064 (1985).

     In this case, the Arbitrator did not find that the grievant
was affected by an unwarranted or unjustified personnel action
which directly resulted in a loss of pay the grievant otherwise
would have received. The Arbitrator found that there was no 
basis on the submissions before him on which he could decide the
dispute as to whether the grievant was entitled to more pay
because of the increase in the number of classes she was required
to teach. Therefore, the Arbitrator did not make the findings
necessary to support an award of backpay and his award directing
the Agency to apply the results of the WFA survey to the grievant
retroactively is deficient. Accordingly, we will modify the award
to provide that any WFA survey results be applied
prospectively.

     The Agency's first exception is denied. However, the award
must be modified to provide that the results of the WFA survey
are to be applied to the grievant prospectively.

     V. Second Exception

     A. Contentions

     The Agency contends that the portion of the Arbitrator's
award concerning the hours in the grievant's duty day and the
number of classes she was assigned to teach is contrary to
management's right to assign work under section 7106 of the
Statute. The Agency asserts that allowing the Arbitrator to rule
on the appropriateness of assigning the grievant four classes in
her prescribed duty day allows the Arbitrator to substitute his
judgment for that of management and interferes with its right to
assign work.

     B. Analysis and Conclusion

     We find that the Agency's contention that the award is
contrary to section 7106 of the Statute is without merit. The
Arbitrator expressly found that the Agency's action in 
assigning the grievant to teach four class periods per
instructional day was a proper exercise of management's rights
under section 7106 of the statute. Award at 25. We agree. The
finding does not in any way constitute an improper substitution
of judgment or interference with management's exercise of its
right to assign work. The Agency's second exception is denied.

     VI. Third Exception

     A. Contentions

     The Agency contends that the Arbitrator exceeded his
authority by: (1) addressing the matter of the grievant's
entitlement to additional compensation after allegedly framing
the issue in the dispute solely in terms of the propriety of the
Agency's assignment of the grievant to teach four class periods;
(2)  adding terms to the parties' collective bargaining agreement
by directing the parties to initiate action to have a wage survey
conducted; (3) retaining jurisdiction with respect to the
formulation or implementation of the survey; and (4) relying on
an ex parte communication submitted by the Union after the record
in the proceeding was closed.

     B. Analysis and Conclusion

     We will discuss the Agency's contentions separately below.
We conclude that the Agency has failed to establish that the
Arbitrator exceeded his authority.

     1. The question of the grievant's entitlement to additional
compensation

     The Agency asserts that the Arbitrator exceeded his
authority in addressing this question because the Arbitrator
allegedly framed the issue in the dispute solely in terms of the
propriety of the Agency's assignment of the grievant to teach
four class periods. The Agency's assertion is without merit. The
issue of the grievant's entitlement to additional compensation
for the additional class period she was assigned to teach clearly
was before the Arbitrator as part of the grievance and the issue
submitted by the Union. Moreover, the Arbitrator expressly found
that the issues submitted by the Union and the Agency both
focused on the right of management to assign the grievant an
additional class period without a corresponding increase in pay.
Thus, it is clear that the question of the grievant's entitlement
to additional pay was included as part of the dispute before the
Arbitrator. 

2.  The parties' collective bargaining agreement

     The Agency argues that the Arbitrator added terms to the
parties' agreement by directing them to initiate the necessary
action to have a wage survey conducted. The Agency asserts that
the Arbitrator interpreted their agreement as providing that any
time the Union desires and requests a change in pay policy, the
WFA will be requested to conduct a survey and that any resulting
change will be retroactively applied to the date of the Union's
request.

     We find that the Agency has misconstrued the Arbitrator's
award. The Arbitrator did not rule that any time the Union
requests a pay policy change the Agency must join in a request
for a WFA wage survey and retroactively apply any change
resulting from the survey. The Arbitrator resolved a specific
grievance involving a question of the entitlement of the grievant
to additional compensation. He determined that there were no 
precise standards in the parties' collective bargaining
agreement, law or regulation on which he could resolve the pay
question. He further determined that the dispute could be
resolved consistent with the parties' agreement by the parties
initiating a wage survey addressing the issue. We do not read
those determinations as adding any terms to the parties'
agreement. Rather, they simply reflect the Arbitrator's reasoning
and conclusions in his attempt to resolve the question of the
grievant's possible entitlement to additional compensation.

     We note that in another case, Veterans Administration and
American Federation of Government Employees, Local 2796, 24 FLRA 
47 (1986), the Authority found that the arbitrator exceeded his
authority in fashioning a remedy for the grievant after
concluding that the agency had not violated the parties'
agreement, or applicable law or regulation. However, in that
case, the arbitrator framed the issue as whether the agency's
termination of the grievant was in compliance with the agreement
and applicable laws and regulations. The arbitrator expressly
found that the agency's decision was consistent with the
agreement, law and regulation. Nevertheless, the arbitrator
ordered the agency to inform the grievant of future vacancies and
allow the grievant to apply. The Authority concluded that by
ordering that remedial relief for the grievant the arbitrator
decided and awarded a remedy concerning an issue that was not
submitted to arbitration.

     In contrast, in this case, the grievance and issue submitted
to the Arbitrator by the Union clearly included a 
question of the grievant's entitlement to additional
compensation. Moreover, in framing the issue for resolution, the
Arbitrator specifically found that the issues submitted by the
parties for resolution both focused on the