41:0465(43)AR - - Intl. Organization of Masters, Mates and Pilots and Panama Canal Commission - - 1991 FLRAdec AR - - v41 p465
[ v41 p465 ]
The decision of the Authority follows:
41 FLRA No. 43
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on an exception to an award of Arbitrator Marshall J. Seidman 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 Union's exception.
The grievants filed grievances claiming that they had been improperly denied an overseas tropical differential. The Arbitrator determined that they were not entitled to the differential and denied the grievances.
We conclude that the Union fails to establish that the award is deficient, and we will deny the exception.
II. Background and Arbitrator's Award
In 1989, five Agency employees, who are U.S. citizens and are employed as pilots with the rank of captain, applied for an overseas tropical differential. All five employees had been locally hired on a permanent basis after July 3, 1976, and had never received and previously had never requested payment of the differential. The Agency denied the requests, stating that none of the employees was entitled to payment of the differential under 35 C.F.R. § 251.31,(*) which sets forth the criteria for eligibility for payment of the differential.
All five employees filed grievances over the denial of payment of the differential. The grievances were not resolved. The grievances were consolidated and were submitted to arbitration.
Before the Arbitrator, the Union noted that the differential serves as a compensation incentive in the recruitment of U.S. citizens to work for the Agency. The Union argued that because U.S. citizens recruited in the United States receive the differential, the grievants, as U.S. citizens, should also receive the differential. The Union claimed that the fact that they were locally hired is irrelevant to the purpose of the differential because the grievants similarly gave up the benefits of residing in the United States to work for the Agency.
The Arbitrator determined that the clear language of 35 C.F.R. § 251.31 did not support the Union's argument. The Arbitrator stated that the criteria for payment of the differential are based on specific facts. Specifically, at the time the grievants were hired, an employee must have been recruited in the United States or, after having been hired, must have been paid the differential in order to retain the employee. The Arbitrator concluded that the grievants failed to meet any of the criteria for payment of the differential because none of the grievants was recruited in the United States and, during the course of their employment, the Agency never offered, and the grievants never requested, the payment of the differential in order to persuade them to retain their employment. Accordingly, the Arbitrator ruled that the grievants were not entitled to the payment of an overseas tropical differential at the time of their original local hire or at any subsequent time, and he denied the grievances.
In denying the grievances, the Arbitrator also ruled that under the authority granted him by the parties pursuant to their collective bargaining agreement, he was not authorized to resolve alleged violations of the U.S. Constitution. Therefore, the Arbitrator did not address the grievants' alleged denials of due process and equal protection of the laws.
III. Positions of the Parties
The Union contends that the award is contrary to law and regulation. The Union argues that the award denies the grievants equal pay for equal work and fair and equitable treatment in violation of law and regulations governing overseas employment.
The Agency argues that the Union's exception is nothing more than a bare assertion that the award is contrary to law and regulation without any support. The Agency claims that the exception constitutes disagreement with the Arbitrator's evaluation of the evidence and his interpretation and application of the collective bargaining agreement and provides no basis for finding the award deficient.
IV. Analysis and Conclusions
We conclude that the Union fails to establish that the award is contrary to any law or regulation governing overseas employment.
The Agency, by regulation in 35 C.F.R. § 251.31, has established an overseas tropical differential to be paid to specified categories of employees. The differential primarily serves as a financial incentive to be used by the Agency in the recruitment of U.S. citizens residing in the United States to work for the Agency and in the retention of employees employed by the Agency. The Arbitrator reviewed the local hiring of the grievants and the fact that the Agency had never offered, and the grievants had never requested, the payment of the differential in order to persuade them to retain their employment. On this basis, he concluded that the grievants were not entitled to payment of the differential under 35 C.F.R. § 251.31.
In its exception, the Union is not actually disputing the Arbitrator's interpretation and application of 35 C.F.R. § 251.31. Instead, the Union is challenging the validity of 35 C.F.R. § 251.31 by arguing that the categories of employees established by 35 C.F.R § 251.31 are unlawful because they fail to include the grievants, as U.S. citizens, among the categories of employees entitled to be paid the differential.
The Union fails to specify what law or regulation governing overseas employment has been violated. Furthermore, the Union offers no citations of authority for its assertions that the Agency was required by laws and regulations providing for equal pay for equal work and for fair and equitable treatment to provide for payment of an overseas tropical differential to the grievants under 35 C.F.R. § 251.31, and no such authority is apparent to us. Accordingly, we conclude that no basis is provided for finding that the award is contrary to law or regulation. See Antilles Consolidated Education Association, OEA/NEA and U.S. Department of Defense, Antilles Consolidated School System, 38 FLRA 341, 347-48 (1990) (the Authority denied the Union's exception claiming that the award violated the requirement of 5 U.S.C. § 2301(b)(3) that equal pay should be provided for work of equal value; the Authority found that the union offered no citations of authority for its assertion that the agency was required by section 2301 to provide the disputed benefits to the grievants and no such authority was otherwise apparent); Headquarters, U.S. Army Training and Doctrine Command, Fort Monroe, Virginia and Local R4-7, National Association of Government Employees, 34 FLRA 537, 541 (1990) (the union provided no citations of authority to establish that the award violated the requirement of equal pay for work of equal value under section 2301(b)(3)).
Accordingly, we will deny the Union's exception.
The Union's exception is denied.
35 C.F.R. § 251.31, entitled "Tropical Differential," provides as follows:
(a) An overseas tropical differential for an employee in the category established by § 251.12(b)(1) who is a medical doctor employed by the Department of Defense or the Panama Canal Commission or a United States citizen employee, and who qualifies under the provisions of paragraph (b) of this section, shall be fixed by the head of each agency in an amount equal to 15 percent of the applicable base wage or salary established under § 215.13.
(b) The tropical differential prescribed by paragraph (a) of this section shall be paid to each United States citizen employee, and each medical doctor employed by the Department of Defense or the Panama Canal Commission, who qualifies under the following rules:
(1) To be eligible, the employee must be a medical doctor employed by the Department of Defense or the Panama Canal Commission or must have continuously occupied a position, other than a position the rates of pay for which are fixed in accordance with rates of pay for the same or similar work performed outside the continental United States, since (i) recruitment or transfer by a department from a place (other than the Canal Zone) under the jurisdiction of the United States, or (ii) separation from the Armed Forces of the United States or from employment with a United States firm, organization, or interest under conditions which provided by contract for return transportation to a place (other than the Canal Zone) under the jurisdiction of the United States.
(2) When the employee is married to another employee eligible for the differential prescribed by this section, the differential may be paid to one spouse only.
(3) The employee whose spouse is a member of the U.S. military service stationed in the area may be paid the differential only to the extent that the amount of the differential otherwise payable exceeds the amount of the total housing allowance (BAQ plus the housing portion of the station allowance) established for Panama, Republic of Panama, for a military member having the same rank and family size as the employee's military spouse. The employee whose spouse, by reason of U.S. Government employment in the Republic of Panama, is eligible under the Department of State Standardized Regulations (Government Civilian, Foreign Areas) (DSSR) for a living quarters allowance (LQA) may be paid the differential only to the extent that the amount of the differential otherwise payable exceeds the amount of LQA established for Panama, Republic of Panama, by sections 920 and 932.22 of the DSSR for one in the same quarter group and with the same family size as the employee's spouse.
(4) An employee may be paid tropical differential only to the extent that such payment, when combined with his base wage or salary established under § 251.13 does not exceed the current rate of step 5, GS-17, of the General Schedule set out in 5 U.S.C. 5332(a).
(5) Tropical differential may be paid only to an individual whose retention the head of the agency determines is essential.
(c) The rule set forth in paragraph (b)(1) of this section shall not disqualify the employee who has been continuously employed since July 3, 1976, and who on that date was (1) receiving a differential, (2) not receiving a differential because the employee's spouse was receiving a differential or a housing or living quarters allowance, (3) not receiving a differential because the employee was under 21, unmarried, and the child or stepchild of a resident of the Canal Zone or the Republic of Panama, or (4) not receiving a differential solely because such payment, when combined with his or her aggregate compensation established under prior regulations in this subpart would have exceeded the current rate of step 5, GS-17, of the General Schedule set out in 5 U.S.C. 5332(a).
(d) The rules set forth in paragraph (b)(2) and (3) of this section shall not disqualify for the differential the employee who is living apart from his or her spouse while party to a pending action for divorce or separate maintenance filed in a court of competent jurisdiction.
(If blank, the decision does not have footnotes.)
*/ The provisions of 35 C.F.R. § 251.31 are set forth in the appendix to this decision.