40:0839(66)AR - - DOD Dependents Schools and Overseas Education Association - - 1991 FLRAdec AR - - v40 p839



[ v40 p839 ]
40:0839(66)AR
The decision of the Authority follows:


40 FLRA No. 66

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF DEFENSE

DEPENDENTS SCHOOLS

(Agency)

and

OVERSEAS EDUCATION ASSOCIATION

(Union)

0-AR-1996

DECISION

May 9, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on exceptions to an award of Arbitrator Francis W. Flannagan filed by the Union 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 exceptions.

The Arbitrator denied a grievance concerning whether certain teachers who left and then returned to teaching positions at the Agency prior to August 1, 1986, were entitled to receive full credit for their prior Agency experience. For the following reasons, we conclude that the Union has not established that the Arbitrator's award is deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

The Agency (DODDS) operates over 250 schools in foreign countries for the education of minor dependents of civilian and military personnel. The Union represents certain of the teachers employed by the Agency.

In June 1986 the Union filed a grievance over the Agency's treatment of employees who had previously been employed as teachers by the Agency and then had been reemployed or reassigned to teaching positions after leaving the Agency or working in a non-teaching capacity within the Agency. The Agency regarded those reappointed teachers as new employees and denied them full credit for their prior teaching experience when determining the pay level at which they would be placed. In that grievance, the Union argued that, as 20 U.S.C. ° 902 provides that the wage rates of DODDS teachers are to be equivalent to rates for similar positions in the United States, the Agency's practice did not, as required by law, conform to the pay practices in the school jurisdictions that formed the basis for the establishment of the pay and other terms and conditions of employment of the Agency's teachers.

The grievance was settled in June 1987. The settlement was reduced to writing in a Memorandum of Understanding (MOU) and provided:

STEP PLACEMENT ISSUES

Management and the [Union] at the National level agree that all pending grievances involving the issue of step placement upon reappointment or other return of an employee to the Public Law 86-91 (20 USC 901-907) personnel and pay system shall be finally and fully resolved and settled by the issuance of the following policy:

Upon reappointment to a 20 USC 901-907 position, all prior service in a 20 USC 901-907 professional position (does not include clerical and paraprofessional positions) will be credited for pay purposes up to the maximum step authorized in the appropriate salary schedule regardless of any established maximum creditable years of

service for appointment or reappointment. Should the accumulated years of creditable service equal or exceed the established maximum step on the appropriate salary schedule, no other experience can be credited for pay.

This policy is retroactively effective for reappointments on and after August 1, 1986, only for those employees who are employed by DODDS on June 1, 1987. Notice of this policy will be posted in each school. Current employees who believe that they are eligible for a pay change based upon this policy change must notify their principal prior to November 1, 1987, or forever lose any entitlement to a retroactive pay change.

Award at 4 (quoting MOU; emphasis in original).

In July 1987, the Agency's regional directors were notified, by memorandum, of the policy enunciated in the MOU. The memo included two examples of step placement. One example specifically dealt with teachers returning to teaching positions prior to August 1, 1986. It provided:

EXAMPLE 2

SITUATION: An assistant principal employed under the GS pay system by DODDS applies for and is appointed to a position in the TP pay system in August 1985, at step 11. The employee has 5 years of non-DODDS teaching experience, 9 years of prior DODDS teaching experience and 2 years of experience as an assistant principal. The employee timely applies for retroactive benefit.

STEP PLACEMENT: Because the appointment was effective and step placement determination made in August 1985 (i.e., prior to August 1, 1986), the employee is not eligible for the adjustment, either retroactively or prospectively. As such, the step 11 placement is unchanged.

Id. at 5 (quoting memo).

A copy of the memorandum was provided to the president of the Union. The letter transmitting the memorandum to the Union stated, in part: "If you have any questions or

comments please let me know." Id. No questions or comments were immediately forthcoming.

After the grievance was settled, the Agency requested the organization in the Department of Defense (the Wage Fixing Authority) that surveys the pay practices of stateside schools for purposes of the Defense Department Overseas Teachers Pay and Personnel Practices Act (the Overseas Teachers Pay Act or the Act), 20 U.S.C. °° 901-907, to conduct the required survey of salaries in U.S. schools. Because the Wage Fixing Authority did not have time immediately to conduct the survey, the Union conducted its own survey. In 1990, the Wage Fixing Authority conducted its survey.

On June 26, 1989, the Union filed the grievance involved in this case. In its grievance the Union contended that the Agency was "violating laws, rules, and regulations by not giving all returning teachers full credit for previous DODDS experience, for step placement purposes[,]" by virtue of the Agency's failure to give full credit for prior Agency experience to teachers who had returned before August 1, 1986. Id. The Agency denied the grievance because, in the Agency's view, the issues presented had been finally and fully resolved in the MOU. The Agency asserted that the MOU "is clear and specific with regard to the application of the revised step placement policy. It specifically defined who would be effected [sic] . . . . Upon entering [into] the settlement agreement, the [Union] relinquished any right it might have otherwise had to pursue the step placement issue for those employees who were reappointed to DODDS prior to August 1, 1986." Id. at 6 (quoting Agency's response to grievance). The grievance was not resolved and was submitted to arbitration.

The parties could not agree upon the wording of the issue to be decided. The Arbitrator framed the issue as: "Was it proper for DODDS to refuse to grant DODDS teachers returning prior to August 1, 1986 full credit for prior DODDS experience? If not, what is the remedy?" Id. at 1.

Before the Arbitrator, the Union argued that the settlement of the earlier grievance did not resolve the issue presented in this case. The Union asserted that different issues were presented by the two grievances and that teachers returning prior to August 1, 1986, who did not have grievances pending when the earlier grievance was settled were not barred from raising the issue in the current grievance. The Union further contended that it did not waive its right to demand full credit for previous experience for teachers returning prior to August 1, 1986, and that any such waiver would be void. The Union also

maintained that the Agency's refusal to grant full credit for prior experience violated 20 U.S.C. °° 901-907. Finally, the Union claimed that the survey of the Wage Fixing Authority was flawed.

The Arbitrator concluded that the MOU was still in full force and effect when the grievance was filed in this case. The Arbitrator noted that the MOU provided:

1) All prior service would be credited up to the maximum step authorized. 2) The policy does not apply to teachers coming into the system prior to August 1, 1986 as it is retroactive only to such date. 3) Any employee believing he or she was entitled to a pay change under the new policy as set forth in [the MOU] [was required to] notify their [sic] principal prior to November 1, 1987,"or forever lose any entitlement to a retroactive pay change."

Id. at 8-9 (quoting MOU). Accordingly, the Arbitrator rejected the Union's arguments regarding the MOU's lack of applicability to the grievants in this case and found that the "plain language of the [MOU] shows it does not apply to teachers returning prior to August 1, 1986." Id. at 10.

The Arbitrator specifically rejected the Union's argument that at the time of the earlier grievance settlement, it was understood that a survey would be conducted regarding teachers returning prior to August 1, 1986, and upon its completion the Union reserved the right to raise the issue of experience credit for those teachers. The Arbitrator concluded that he could not "construe plain and unambiguous language except from the language used. If such was a part of the agreement it should have been incorporated into the written [MOU]." Id. The Arbitrator concluded that the issue presented by the grievance in this case "was determined by the settlement agreement of [the earlier] grievance . . . and that such agreement is binding on both parties[.]" Id. at 10-11.

In conclusion, the Arbitrator stated that he had carefully considered the Union's other arguments and he rejected them. Accordingly, the Arbitrator found that the Agency had properly refused to grant full credit to DODDS teachers who returned to DODDS teaching positions prior to August 1, 1986, and he, therefore, denied the grievance.

III. Positions of the Parties

A. The Union

The Union contends that the Arbitrator's award is deficient because it is based on a nonfact and is contrary to law. The Union maintains that the Arbitrator "has misread and misinterpreted the wording of the Memorandum of Understanding (MOU). . . as applying to a category of teachers not intended by the parties . . . . By doing so the [A]rbitrator has created the nonfact upon which his decision is based." Exceptions at 1-2.

The Union argues that at the time the MOU was signed, "there remained an unresolved question as to how much credit for previous experience should be given to teachers who returned prior to August 1, 1986," and that the MOU only applies to those teachers reappointed on or after August 1, 1986. Id. at 2. The Union asserts that the evidence offered by the parties at the arbitration hearing supports the clear and unambiguous language of the MOU that the issue of credit for teachers who returned prior to August 1, 1986, was unresolved. The Union claims that it performed its own survey of pay practices upon the specific understanding that the information obtained would be used in resolving this issue that the parties had specifically reserved for future resolution. The Union further argues that the fact that the Agency also performed a study "prove[s] that the issue was not settled and that there was indeed an agreement to conduct a survey and to use that data to resolved [sic] the remaining dispute." Id. at 5. Accordingly, the Union argues that the Arbitrator based his award on a nonfact in concluding that the MOU resolved the issue of the credit to be given to teachers who returned to the Agency prior to August 1986.

The Union also contends that the Arbitrator's award is contrary to 20 U.S.C. ° 902. The Union maintains that, as the Agency's "teachers are entitled by law to be paid equal to 'stateside teachers in districts with a [sic] populations over 100,000[,]' . . . [I]f prior to 1986 teachers in large stateside schools were being given full credit for previous experience when they returned to teach again at the same school system, then DoDDS is in violation of the Act for not also giving teachers returning prior to 1986 full credit for prior experience." Id. at 6.

The Union asserts that compensation of DODDS teachers has consistently been determined through surveys of large U.S. school systems and that no survey was performed to determine how much credit should be given to the teachers involved in this case. The Union argues that for the Agency "to enter into an agreement on pay without knowing whether they were giving DoDDS teachers pay equal to teachers in large stateside schools would be for DoDDS to knowingly ignore the mandate of the Act. For this reason DoDDS and [the Union] could not have entered into an agreement concerning the amount of credit for prior experience to give former DoDDS teachers who returned . . . prior to 1986. When the [A]rbitrator ruled that the MOU . . . applied to [such] teachers . . . the [A]rbitrator's ruling was contrary to the Act." Id. at 7.

The Union argues further that it "did not wave [sic] the statutory rights of former DoDDS teachers who returned to serve DoDDS prior to August 1, 1986." Id. at 8. The Union asserts that, as it did not clearly and unmistakably waive these teachers' right "to be paid equal to teachers in large stateside schools[,]" the Arbitrator "cannot waive [that] statutory right." Id. at 7.

Finally, the Union contends that the Arbitrator's decision is contrary to case law interpreting and applying the Act. Specifically, the Union maintains that the decision and order in March v. U.S., 506 F.2d 1306 (D.C. Cir. 1974), order on remand, Civil Action No. 3437-70 (D.D.C. June 27, 1975) (March v. U.S.), held that under the Act, DODDS teachers are entitled to be credited for teaching experience to the same extent as teachers in large stateside schools.

B. The Agency

The Agency contends that the Arbitrator's award is correct and that the Union "is merely trying to relitigate the case before the Authority." Opposition at 2. The Agency asserts that the Union's arguments constitute nothing more than disagreement with the Arbitrator's findings of fact and his reasoning and conclusions and, as such, provide no basis for finding the award deficient.

The Agency argues that the Union has not established that the Arbitrator's award is contrary to law. In this regard, the Agency asserts that the Union "has presented no evidence to support its hypothesis" that "if prior to 1986, teachers from [specified stateside school] districts were

given full credit for previous experience when they returned to teach at the same school system, then DoDDS would be in violation of the Act for not doing the same." Id. (emphasis in original). The Agency also contends that even assuming that it is a violation of 20 U.S.C. ° 902 to deny the teachers full credit for prior experience, the Union failed to raise the matter in a timely fashion.

IV. Analysis and Conclusions

We will find an award deficient on the ground that it is based on a nonfact when it is demonstrated that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached. See, for example, Department of the Navy, Naval Surface Warfare Center, Dahlgren, Virginia and American Federation of Government Employees, Local 2096, 35 FLRA 809, 813 (1990). In order for an award to be found deficient on this ground, it must be established that the alleged "nonfact" was the central fact underlying the award, was clearly erroneous, and that but for the arbitrator's erroneous finding, the arbitrator would have reached a different result. Id.

The Union asserts that the arbitrator based his award on the nonfact that the MOU applied "to a category of teachers not intended by the parties[.]" Exceptions at 1. However, we find that this argument is that the award does not draw its essence from the agreement, not that it is based on a nonfact. See Veterans Administration Medical Center, Palo Alto, California and American Federation of Government Employees, Local 2110, 36 FLRA 98, 103-05 (1990) (contention that the award erroneously found that employees were entitled to overtime is not an allegation of nonfact, but that the award is contrary to law). In order for an award to be found deficient because it fails to draw its essence from the agreement, it must be shown that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact, and so unconnected with the wording and purpose of the agreement, as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See, for example, U.S. Department of the Treasury, Internal Revenue Service, Omaha, Nebraska District and National Treasury Employees Union, 36 FLRA 453, 462 (1990).

The Union has not demonstrated that the award fails to draw its essence from the parties' agreement under any of

these tests. We conclude that the Union's argument constitutes mere disagreement with the Arbitrator's evaluation of the evidence and interpretation of the MOU and is an attempt to relitigate the merits of the case before the Authority. Such disagreement provides no basis upon which to find the Arbitrator's award deficient under the Statute. See, for example, Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, AFL-CIO, 32 FLRA 79, 88 (1988) (that the agency or the Authority may have interpreted the agreement differently provides no basis for finding the award deficient; the question of the interpretation of the collective bargaining agreement was a question solely for the arbitrator because it was the arbitrator's construction of the agreement for which the parties bargained).

We also conclude that the Union fails to establish that the award is contrary to the Overseas Teachers Pay Act, 20 U.S.C. °° 901-907.

We reject the Union's argument that the Agency and the Union could not have entered into an agreement concerning the amount of credit for prior experience to give these teachers. As with the Union's previous arguments, the argument that the parties could not have entered into such an MOU constitutes nothing more than disagreement with the Arbitrator's interpretation and application of the MOU and provides no basis for finding the award deficient.

We also reject the Union's assertion that it did not waive these teachers' rights under the Act because there is no clear and unmistakable expression of such intent. In this case, the Arbitrator specifically found that the "plain and unambiguous language" of the MOU showed that it did not apply to teachers returning prior to August 1, 1986, and that the MOU determined the issue presented by the grievance in this case. For the reasons stated by the Arbitrator, we find that the MOU constitutes a settlement agreement that clearly and unmistakably waives the right of the Union to pursue the matter of credit for prior experience of these teachers. See U.S. Department of Housing and Urban Development, Boston, Massachusetts and American Federation of Government Employees, Local 3258, 38 FLRA 1542, 1551 (1991) (rejecting the union's argument that the agreement did not waive its right to bargain as found by the arbitrator).

In our view, the Union is barred from litigating the issue of the proper experience credit to grant these

teachers under the Act. As noted by the U.S. Court of Appeals for the Federal Circuit, "[t]hose who employ the judicial appellate process to attack a settlement through which controversy has been sent to rest bear a properly heavy burden." Asberry v. U.S. Postal Service, 692 F.2d 1378, 1380 (Fed. Cir. 1982). In order to attack a settlement agreement arising from a federal civilian personnel action, it must be shown that the agreement was tainted with invalidity, either by fraud or mutual mistake. Id. In Asberry, the court found no invalidity and determined that the case involved a typical settlement situation in which each party gives up something in order to terminate the dispute without further litigation. Id. at 1381-82. Having found that the employee voluntarily accepted the settlement and its benefits, the court held that the employee was "equitably estopped to attack it." Id. at 1382. In this case, the Union makes no showing of fraud or mutual mistake. Because the Union has failed to establish that the Arbitrator's interpretation and application of the MOU is deficient or that the MOU is otherwise invalid, we find that the Union is barred from attacking it.

Furthermore, we find that, in any event, the Union fails to establish that the provisions of the MOU are contrary to the Act. We agree with the Agency that the Union in its exception is merely speculating as to the practices of relevant stateside school districts. The Union has not introduced any probative evidence to support the amount of previous experience that was being credited by large stateside schools prior to August 1986. In such circumstances, the Union has not shown that the Arbitrator's enforcement of the parties' MOU as determinative of the grievance is contrary to the Act. Overseas Education Association and Department of Defense Dependents Schools, Mediterranean Region, 16 FLRA 276, 278 (1984) (citing March v. U.S., the Authority held that in the absence of substantial proof c