38:1432(111)AR - - DOD Dependents Schools, Germany Region and Overseas Education Association - - 1991 FLRAdec AR - - v38 p1432



[ v38 p1432 ]
38:1432(111)AR
The decision of the Authority follows:


38 FLRA No. 111

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF DEFENSE

DEPENDENTS SCHOOLS

GERMANY REGION

(Agency)

and

OVERSEAS EDUCATION ASSOCIATION

(Union)

0-AR-1943

ORDER DIMISSING AGENCY EXCEPTION

January 14, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to the award of Arbitrator Earle W. Hockenberry, Jr. After holding that a dispute over the grievant's conduct-based termination was arbitrable, the Arbitrator found that the Agency had just cause to discipline the grievant. However, the Arbitrator reduced the grievant's removal to a suspension without pay and ordered that the grievant's personnel records be corrected accordingly.

The Agency filed an exception 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 Union filed an opposition to the Agency's exception.

For the following reasons, we conclude that the Authority is without jurisdiction to review the Agency's exception. Accordingly, we will dismiss the exception.

II. Background and Arbitrator's Award

The grievant, a GS-11 high school teacher and a nonpreference-eligible, excepted service (NEES) employee, was terminated by the Agency for driving while off-duty in an intoxicated condition and fleeing the scene of two automobile accidents. Subsequently, a grievance was filed concerning the removal. When the grievance remained unresolved, it was submitted to arbitration on the following stipulated issues:

1. Is the . . . removal action of the Grievant . . . arbitrable in substance?

2. If so, was the removal of the Grievant in accordance with the . . . negotiated agreement, applicable law and regulation?

3. If not, what is the appropriate remedy?

Award at 3.

Relying on the Authority's decision in Department of Defense Dependents Schools (DoDDS), Pacific Region and Overseas Education Association (OEA), 22 FLRA 597 (1986)(DoDDS, Pacific Region), the Arbitrator concluded that the dispute was arbitrable. The Arbitrator then found that the Agency had satisfied its "burden [of proof] in demonstrating a linking relationship . . . between the . . . misconduct and the Grievant's duties as an educator." Award at 19. According to the Arbitrator, the misconduct was inconsistent with the "leadership and role model requirements of the Grievant as a DODDS educator." Id. at 20.

The Arbitrator also determined, however, that the removal of the grievant was not consistent with the concept of progressive discipline expressed in the parties' collective bargaining agreement. Finding that the removal was not in accordance with the parties' agreement or applicable law, the Arbitrator concluded that the penalty of termination should be mitigated. Accordingly, the Arbitrator ordered that the termination be "mitigated to a suspension from pay and duties for the remainder of the . . . teaching year[,]" and that the grievant's personnel records "be corrected to show the recission [sic] of the removal action. . . ." Id. at 21.

III. The Agency's Exception

The Agency asserts that the grievant, as a NEES employee, is precluded by law from challenging the termination through the negotiated grievance procedure. The Agency contends that recent court decisions have held "that, under the comprehensive remedial framework established by Congress in chapters 43 and 75 of the Civil Service Reform Act of 1978 . . . , the right to [obtain] review [of] major adverse actions taken under 5 USC 7512 was limited to competitive service and preference eligible employees." Exception at 2. Therefore, the Agency contends that "[t]he arbitrator was without jurisdiction to render an award on the merits of [the] removal action . . . and the award as to that action is deficient under section 7122(a) of the Statute because it is contrary to law." Id. at 1-2.

Furthermore, the Agency argues that the Arbitrator's reliance on DoDDS, Pacific Region was misplaced. According to the Agency, the Authority "was incorrect[]" in finding, in that decision, that overseas teachers were in another personnel system, within the meaning of section 7121(f) of the Statute. Id. at 4.(*) The Agency maintains that the grievant is "covered by [the] provisions of Title 5 for retirement, health insurance, life insurance, travel, allowances, and labor-management relations[,]" and is therefore "not in another personnel system for . . . purposes of adverse personnel actions." Id. In support, the Agency cites Nieuwdorp v. Library of Congress, 872 F.2d 1000, 1002 (Fed. Cir. 1989) (Nieuwdorp), where the court stated that "DODDS employees . . . are covered by the 'employee' definition of chapters 43 and 75 of Title 5 and thus fall within the first, not the second, employee category" of section 7121(f).

IV. The Union's Opposition

Relying on DoDDS, Pacific Region, the Union contends that the Authority lacks jurisdiction to review the Agency's exception. Furthermore, the Union asserts that the Agency's "reliance on Nieuwdorp . . . is misplaced[,] . . . because the court's statement[] about the status of overseas teachers was dictum and not the holding of the court." Opposition at 4.

The Union also maintains that, "unlike other excepted service employees, overseas teachers are not 'at-will' employees." Id. In addition, the Union contends that when the Agency proposes to discharge overseas teachers, they are entitled to notice and an evidentiary hearing, as "satisfie[d]" by a "negotiated grievance and arbitration mechanism . . . ." Id. at 5.

V. Analysis and Conclusion

In DoDDS, Pacific Region, the Authority concluded that the Defense Department Overseas Teachers Pay and Personnel Practices Act, 20 U.S.C. §§ 901-907 (the Act), established "[an]other personnel system[]" within the meaning of section 7121(f). Although section 7121(f) does not define the phrase "[an]other personnel system[]," the Authority noted that the legislative history of section 7121(f) provides, as a specific example of another personnel system, the system established by 38 U.S.C. §§ 4101-4119 for Department of Medicine and Surgery (DM&S) professional employees of the Veterans Administration. Using the DM&S system as a guide, the Authority concluded that the Act established a personnel system 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." 22 FLRA at 599.

The Authority noted, in DoDDS, Pacific Region, that the purpose of the Act 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." Id. at 600. The Authority also noted that the Senate report that accompanied the bill that was enacted and signed into law as the Act specifically stated that the purpose of the bill was "'to provide a system of personnel administration for schoolteachers and certain school officers . . . .'" Id. (quoting S. Rep. No. 141, 86th Cong., 1st Sess. 1 (1959)). Finally, the Authority stated that, under 20 U.S.C. § 902(a), the Secretary of Defense had authority to promulgate regulations governing: (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 Chapter 20. Id.

In Nieuwdorp, the Federal Circuit disagreed with the Authority's decision in DoDDS, Pacific Region. The court stated that the Authority "did not consider whether DODDS employees were within the definition of employee under sections 4301(2) and 7501(1) [sic] and thus whether the first sentence of section 7121(f) was applicable." Nieuwdorp at 1002 n.3. The court stated further that by "focusing solely on the second sentence of section 7121(f), the FLRA reached a decision that is plainly inconsistent with the language of the statute." Id.

After careful examination of the parties' positions in this case, including the court's decision in Nieuwdorp, we adhere to the Authority's holding in DoDDS, Pacific Region, and respectfully disagree with the Federal Circuit. For purposes of section 7121(f), a finding that certain DoDDS employees fall within the definition of "employee" under section 7511(a)(1) does not, in our view, mandate a conclusion that the DoDDS personnel system is not another personnel system. Rather, we conclude that the determinative factor in deciding whether a personnel system constitutes another system, within the meaning of section 7121(f), is whether the personnel system is intended to operate separate and apart from the personnel system which is applicable to general Federal Civil Service employee