37:0226(15)AR - - DODDS and Overseas Education Association - - 1990 FLRAdec AR - - v37 p226



[ v37 p226 ]
37:0226(15)AR
The decision of the Authority follows:


37 FLRA No. 15

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF DEFENSE

DEPENDENT SCHOOLS

(Agency)

and

OVERSEAS EDUCATION ASSOCIATION

(Union)

O-AR-1796

DECISION

September 14, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Samuel Spencer Stone. The Arbitrator denied the grievance concerning the Agency's denial of certain living quarters allowances (LQA) to the grievant.

The Union filed exceptions to the award 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 Agency filed an opposition to the Union's exceptions.

For the following reasons, we find that the Union has failed to establish that the Arbitrator's award is deficient. Accordingly, we will deny the Union's exceptions.

II. Background and Arbitrator's Award

The grievant accompanied her spouse, an Air Force officer, on an overseas military assignment to Heidelberg, Germany in July 1982. The grievant and her sons were regarded as "command-sponsored dependents." DoD Directive 1315.7, Section F. Upon arriving in Heidelberg, the grievant's spouse received LQA for his family.

After her arrival in Heidelberg, the grievant was locally hired as a part-time speech therapist at the high school operated by the Agency. The grievant received a permanent speech therapy teacher position with the Agency in June 1987.

The grievant's spouse retired from the Air Force on July 31, 1987 and was no longer entitled to LQA after that date. However, pursuant to the Department of Defense (DoD) Joint Travel Regulations, he and his family had one year from his retirement date to exercise return transportation rights to the United States.

After his retirement from the Air Force, the grievant's spouse was hired by DoD as a civilian employee at the North Atlantic Treaty Organization (NATO) headquarters in Brussels, Belgium. In light of a DoD Directive that prohibits the appointment of retired military officers as civilian employees for 180 days after retirement, the grievant's spouse could not begin his civilian job at NATO until February 1, 1988. The grievant's spouse was eligible for and did receive LQA in Brussels because he met the criteria pursuant to Department of State Standardized Regulations (DSSR) § 031.12(b) and Section 2-2.b.(1) of Department of Defense Directive 1400.25-M, Chapter 592, Subchapter 2 (DoD Directive).(1)

The grievant decided not to accompany her spouse to Brussels but, rather, to stay in Heidelberg and continue teaching at the Agency's high school. In January 1988, the grievant applied for LQA at the Heidelberg civilian personnel office because her sponsoring spouse had "[departed] the post or area permanently" and because the grievant and her spouse's working locations "became so separated that daily commuting to a common home would not be reasonable" pursuant to Section 2-2.b.(3)(c) and (d) of the DoD Directive. The grievant's request was denied because at the time her spouse departed the post or area permanently, he had retired and was no longer the "sponsoring spouse." Award at 13.

The grievant filed a grievance concerning her denial of LQA. When her grievance was not resolved, it was submitted to arbitration. The Arbitrator found that the issues in this case were:

1. Was the grievance filed timely?

2. Was denial of quarters allowance contrary to regulations?

3. Was denial of quarters allowance estopped due to the grievant's detrimental reliance?

4. Is the issue of denial of quarters allowance for unusual circumstances properly before me?

5. Was denial of quarters allowance for unusual circumstances arbitrary, capricious and an abuse of discretion?

Id. at 5-6.

The Arbitrator found first that "the grievance was filed timely." Award at 22. The Arbitrator also found that the grievant failed to sustain her allegation that she received erroneous information from the Agency's officials, on which she relied to her detriment, that she would be granted LQA. Therefore, the Arbitrator found that the Agency "was not estopped from denying quarters allowance due to the grievant's detrimental reliance." Id. at 27.

The Arbitrator found that the grievant, as a civilian employee of the DoD, was covered by the DSSR. He further found that she qualified under all pertinent provisions of the DSSR except subsection 031.12b and c because she was not recruited in the United States or the other designated areas and she was not required by the Agency to move to another area.

According to the Arbitrator, Section 2-2 of the DoD Directive applied in this case. The Arbitrator concluded that Section 2-2.b.(1) of the DoD Directive, which applied to the grievant's spouse, did not apply to the grievant because "there is no sponsoring spouse language to tie that provision to the grievant." Award at 23. Further, the Arbitrator noted that "[t]he grievant's spouse and the grievant are separate employees for purposes of this provision." Id.

The Arbitrator also found that the grievant did not qualify under Section 2-2.b.(3)(c) of the DoD Directive, which provides for waiver of the DSSR requirements when a sponsoring spouse leaves the post or area permanently, "because the grievant's spouse retired on July 31, 1987 and ceased to be her sponsoring spouse." Id. at 24. The Arbitrator further found that the grievant did not qualify under Section 2-2.b.(3)(d) of the DoD Directive which provides for waiver of the DSSR requirements when either spouse's work location becomes so separated that daily commuting to a common home would not be reasonable, "because the grievant's spouse retired on July 31, 1987 and did not have a work location before he accepted his position in Belgium." Id. The Arbitrator concluded that the grievant did not qualify under Section 2-2 of the DoD Directive because the "grievant's own circumstances do not meet the conditions specified in [DSSR subsection] 031.11 or 031.12b." Id. Therefore, the Arbitrator reasoned that the "denial of quarters allowance was not contrary to regulations." Id.

Finally, the Arbitrator found that the issue of denial of quarters allowance for unusual circumstances was properly before him because "[t]he Union raised the unusual circumstances provision as part and parcel of the grievance." Id. at 28. The Arbitrator noted that DSSR subsection 031.12 provides that subsection 031.12b may be waived by the head of the Agency on determination that unusual circumstances in an individual case justify such action. The Arbitrator noted, however, that the decision on this issue was within the discretion of the Agency and could be overturned only if the decision was "arbitrary, capricious and an abuse of discretion." Id. at 29. The Arbitrator concluded that he had "insufficient evidence that decision was arbitrary, capricious and an abuse of discretion." Id.

Accordingly, the Arbitrator found that the grievant was not entitled to LQA and he denied the grievance.

III. Positions of the Parties

A. The Union's Exceptions

The Union asserts that the Arbitrator's award is deficient because the grievant is entitled to LQA pursuant to waiver of the DSSR requirements under section 2-2.b.(3)(c) and (d) of the DoD Directive.

With respect to section 2-2.b.(3)(c) of the DOD Directive, the Union claims that the grievant's spouse was her "sponsoring spouse" when he left Heidelberg for his new job in Brussels because (1) the grievant's family's eligibility for return transportation to the United States had not yet expired and the family members were "command sponsored dependents" under DoD Directive 1315.7, Section F; and (2) the grievant's spouse's gap in employment was not a voluntary one but, rather, was pursuant to DOD Directive 1402.1 which requires a 180-day waiting period between retirement from the military and assuming civilian employment with the DOD; and (3) consistent with section 2-2 b.(1) of the DOD Directive, "a retired military spouse 'will be considered to have "substantially continuous employment" from the date of separation until the date on which their entitlement to government-paid transportation back to the United States expires.'" Exceptions at 9-10.

Further, according to the Union, the DoD Directive clearly states that an individual does not have to be currently employed by the United States Government in order to be a sponsoring spouse: "the [locally hired] employee must have entered the area as the spouse of a sponsor who was eligible for the quarters allowance or who would have been eligible if employed by the government." Id. at 10 (emphasis added by Union). According to the Union, this provision means that the sponsor need not be eligible for quarters allowance at the time one of the four events listed in Section 2-2.b.(3) of the DoD Directive occurs in order for the locally hired spouse to become eligible.

Finally, the Union contends that the Arbitrator's award is inconsistent with arbitration awards in other cases. In particular, the Union points to an award where, according to the Union, "the Agency reaffirmed that an employee recruited in the United States continues to be a sponsoring spouse within the meaning of § 2-2.b(3) after his employment ends and until the family's entitlement to return transportation to the U.S. expires." Exceptions at 10-11 (emphasis in original). In addition, the Union refers to an arbitration case where, it states, the Agency granted a locally hired teacher LQA based on her sponsor's permanent departure from the post even though his departure occurred 7 months after his retirement from the Air Force.

In the alternative, the Union contends that even if the grievant's spouse was no longer the "sponsoring spouse," the grievant was eligible for LQA under section 2-2.b.(3)(d) of the DoD Directive. The Union claims that, under section 2-2.b.(3)(d) of the DoD Directive, "there is no requirement that the locally hired employee be in a 'sponsored' status in order to be eligible for LQA in this situation." Id. at 15. Accordingly, the Union concludes that the grievant was entitled to LQA under Section 2-2.b.(3)(d) of the DoD Directive on February 1, 1988, when the grievant's spouse assumed his civilian position in Brussels, thereby separating his work location from the grievant's to the extent that daily commuting to a common home became unreasonable.

B. The Agency's Opposition (2)

According to the Agency, the Union has failed to demonstrate that the Arbitrator's award violates Section 2-2 b.(3) of the DoD Directive. The Agency claims that the Union has relied "on material taken out of context from other briefs and arbitration awards in different cases in expressing its disagreement with the arbitration award." Opposition at 1. Further, the Agency claims that the Union has shown only that "there has been inconsistent interpretation of [DoD Directive 1400.25-M] by servicing civilian personnel offices of the Military Departments." Id. at 1-2.

The Agency contends that the Arbitrator properly found that, upon his retirement from the Air Force, the grievant's spouse was no longer a "sponsoring spouse" for the purpose of the DoD Directive. The Agency rejects the Union's argument that the grievant's spouse was a "sponsoring spouse" because he retained entitlement to return transportation to the United States. According to the Agency, the Union has provided no regulatory definition of "sponsoring spouse," which the Arbitrator interpreted to mean a spouse entitled to LQA, and there is nothing in the DSSR or the DoD Directive which provides otherwise.

The Agency also rejects the Union's argument that because the grievant's spouse was entitled to LQA at his job in Brussels pursuant to Section 2-2.b.(1) of the DoD Directive, he remained a "sponsoring spouse" for the purpose of the grievant's LQA. The Agency claims that the Arbitrator properly found that although Section 2-2.b.(1) of the DoD Directive applied to the grievant's spouse, it did not apply to the grievant because she was neither a former military or civilian employee.

The Agency contends that the grievant could not be eligible for LQA on the basis of separated work locations. The Agency argues that the Arbitrator correctly found that, in order for Section 2-2.b.(3)(d) of the DoD Directive to apply to this case, both the grievant and her spouse had to be employed at the time their work locations became separated. The Agency also argues that the Arbitrator properly determined that the grievant's spouse did not have a work location for 6 months prior to assuming the job in Brussels and, thus, Section 2-2.b.(3)(d) of the DoD Directive did not apply. In conclusion, the Agency claims that the Union "has failed to show how this interpretation is contrary to the regulation." Id. at 6. The Agency claims that the Union is merely trying to relitigate this matter before the Authority.

The Agency contends that even if the Union has shown that the grievant meets the requirements of either Section 2-2 b.(3)(c) or (d) of the DoD Directive, the Union did not dispute the Arbitrator's finding that the grievant did not meet the additional requirements found in the paragraph directly below Section 2-2.b.(3)(d) of the DOD Directive. Therefore, the Agency claims that "[e]ven if their other arguments were determined to be valid, the award must stand because the arbitrator determined the grievant did not meet this regulatory requirement." Opposition at 7.

IV. Analysis and Conclusion

The Union asserts that the Arbitrator's award is deficient because the grievant is entitled to LQA under section 2-2.b.(3)(c) and (d) of the DoD Directive. Section 2-2.b.(3) of the DoD Directive provides that Agency officials "will waive" the DSSR requirements applicable to LQA in certain circumstances.

For the grievant to qualify for waiver of the DSSR requirements under subsection (3)(c) of the DoD Directive, her sponsoring spouse would have had to have departed the post or area permanently. The Arbitrator found that the grievant did not qualify under subsection (c) because the grievant's spouse ceased to be her sponsoring spouse after his retirement on July 31, 1987.

The Union has failed to establish that the Arbitrator's interpretation of subsection (3)(c) of the DoD Directive was erroneous. It is clear that the Union's interpretation of the DoD Directive differs from the Arbitrator's. The Union has not shown, however, that the Arbitrator's interpretation conflicts with the plain wording of the DoD Directive or is otherwise impermissible. In particular, the Union has not demonstrated that, even if the grievant was a "command-sponsored dependent" or the grievant's spouse had "substantially continuous employment," as defined in other Agency regulations, those findings would mandate a conclusion that the grievant's spouse was a "sponsoring spouse" within the meaning of subsection (3)(c). We have, therefore, no basis on which to find that the Arbitrator's award conflicts with subsection (3)(c) of the DoD Directive. Compare Overseas Education Association and Department of Defense Dependents Schools, 37 FLRA No. 14 (1990) (award remanded to parties to seek clarification from arbitrator as to whether grievant was entitled to waiver of the DSSR requirements under section 2-2.b.(3) of the DoD Directive).

In addition, we reject the Union's argument that the Arbitrator's award is deficient based on previous interpretations of subsection (3)(c) by the Agency or interpretations of the regulation by other arbitrators. It is well established that an arbitrator's award in one case is without precedential effect on the outcome of another case. See Department of the Navy, Norfolk Naval Shipyard and Tidewater Virginia Federal Employees Metal Trades Council, AFL-CIO, 34 FLRA 626, 629 (1990). Arbitrators may follow arbitral precedent but are not required to do so. Id. Likewise, the Union has not demonstrated that the Agency was bound by previous interpretations of subsection (3)(c) in other cases. Accordingly, these arguments do not provide a basis for finding the award deficient. See Adjutant General, State of Oklahoma, Air National Guard, Tulsa, Oklahoma and National Association of Government Employees, Local R8-17, 34 FLRA 691, 695 (1990).

For the grievant to qualify for waiver under Section 2-2.b.(3)(d) of the DoD Directive, the grievant's and the grievant's spouse's work location would have to become so separated that daily commuting to a common home would not be reasonable. The Union asserts that the grievant was entitled to LQA under subsection (3)(d) because "[u]nlike sub[section] 3(c), there is no language in 3(d) that refers to a 'sponsoring' spouse, and therefore there is no requirement that the locally hired employee be in a 'sponsored' status in order to be eligible for LQA in this situation." Exceptions at 15.

The Arbitrator did not interpret subsection (3)(d) as requiring a "sponsoring spouse," however. Rather, with respect to this subsection, the Arbitrator stated only:

Sub[section] . . . (3)(d) provides for either spouse's work location becoming so separated that daily commuting to a common home would not be reasonable. The grievant does not qualify because the grievant's spouse retired on July 31, 1987, and did not have a work location before he accepted his position in Belgium.

Award at 24. As the Arbitrator did not find that, under subsection (3)(d), the grievant required a sponsoring spouse, the Union's exception on this point is misplaced. Further, the Union does not dispute the basis on which the Arbitrator rejected the grievant's claim under subsection (3)(d). Accordingly, for the reasons discussed in connection with the Union's arguments concerning subsection (3)(c), we have no basis on which to disagree with the Arbitrator's finding that the grievant was not entitled to waiver of the DSSR requirements under subsection (3)(d) of the DoD Directive.

The Union has not demonstrated that the Arbitrator's award is inconsistent with applicable regulations or is deficient on any other basis. Accordingly, the Union's exceptions are denied.

V. Decision

The Union's exceptions to the Arbitrator's award are denied.

APPENDIX

DEPARTMENT OF STATE STANDARDIZED REGULATIONS

(Government Civilians, Foreign Areas)

030 APPLICABILITY

031 United States Citizen Employees

031.1 Quarters Allowances

031.12 Employees Recruited Outside the United States

Quarters allowances prescribed in Chapter 100 may be granted to employees recruited outside the United States, provided that:

a. the employee's actual place of residence in the place to which the quarters allowance applies at the time of receipt thereof shall be fairly attributable to his/her employment by the United States Government; and

b. prior to appointment, the employee was recruited in the United States, the Commonwealth of Puerto Rico, the former Canal Zone, or a possession of the United States, by:

(1) the United States Government, including its Armed Forces;

(2) a United States firm, organization, or interest;

(3) an international organization in which the United States Government participates; or

(4) a foreign government;

and had been in substantially continuous employment by such employer under conditions which provided for his/her return transportation to the United States, the Commonwealth of Puerto Rico, the former Canal Zone, or a possession of the United States; or

c. as a condition of employment by a Government agency, the employee was required by that agency to move to another area, in cases specifically authorized by the head of agency.

Subsection 031.12b may be waived by the head of agency upon determination that unusual circumstances in an individual case justify such action.

An employee who was determined to be eligible to be granted a living quarters allowance under former Section 031.12d. last effective March 25, 1971 and last published in TL:SR-174 dated August 11, 1968, may continue to be eligible for and be granted a living quarters allowance while continuously employed in a foreign area and while he/she is otherwise eligible for such allowance.

DEPARTMENT OF DEFENSE CPM 1400.25-M

Chapter 592, Subchapter 2

QUARTERS ALLOWANCE

2-2. Eligibility

b. Employees recruited outside the United States (section 031.12, DSSR) will have their eligibility for quarters allowance determined at the time of hire and at any time pertinent changes in their individual status occur that may confer eligibility. The sample form at Appendix A will be used to document decisions made regarding eligibility for allowances. The DSSR, section 031.12, lists conditions under which an employee may be granted housing allowances. The employee must be a U.S. citizen employed full time. Intermittent and part-time employees are not eligible.

(1) Under the provisions of section 031.12b, DSSR, former military and civilian members will be considered to have "substantially continuous employment" from the date of separation until the date on which their entitlement to government-paid transportation back to the United States expires.

(2) The requirements of section 031.12b of the DSSR may be waived in individual cases when unusual circumstances exist. If the Major Command recommends a waiver, the case will be forwarded to serviced DoD Component headquarters for head-of-agency consideration. All other requests should be returned by letter to the employee explaining the reasons for nonrecommendation. When approval is granted to waive section 031.12b, DSSR, the effective date of the LQA approval will be the letter approval date or the date quarters are occupied, whichever is later.

(3) Officials identified in paragraph 1-2.a of this chapter (that is, appointing officers) will waive DSSR section 031.12b requirements for locally hired U.S. citizen employees when, but for the condition surrounding the employment, the employee would be residing in the United States, Puerto Rico, any U.S. possession, or the former Canal Zone. One of the following events must have occurred for this waiver.

(a) Death of the sponsoring spouse.

(b) Divorce or legal separation; legal separation is a separation under a judgment or decree of a court of competent jurisdiction rendered pursuant to the statutes and laws under which the court exercised its authority.

(c) Sponsoring spouse left the post or area permanently.

(d) Either spouse's work location became so separated that daily commuting to a common home would not be reasonable.

In addition, the employee must have entered the area as the spouse of a sponsor who was eligible for the quarters allowance or who would have been eligible if employed by the government. The employee's reasons for being in the area continuously from the time of arrival must have been fairly attributable to the sponsor's or the employee's own circumstances that meet the conditions specified in section 031.11 or 031.12b, DSSR. In circumstances described in subparagraphs 2-2.b.(3)(b)(c) or (d), above, the LQA will be stopped should the couple remarry, reconciliation occur, or the spouse return to his/her post or area.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. Pertinent sections of the DSSR and the DOD Directive are contained in an Appendix to this decision.

2. In addition to its exceptions, the Union filed a "Reply" to the Agency's "Opposition to Exception to Arbitration Award" and a copy of a recent arbitration decision which the Union claims supports its exceptions. There is no provision in section 2425 of the Authority's Rules and Regulations for the filing of a reply to an opposition and the Union does not assert that