41:1362(105)AR - - DOD Dependents Schools and Overseas Federation of Teachers - - 1991 FLRAdec AR - - v41 p1362
[ v41 p1362 ]
The decision of the Authority follows:
41 FLRA No. 105
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Peter Florey. The Arbitrator concluded that the grievant was entitled to a living quarters allowance (LQA).
The Agency 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 Union filed an opposition to the Agency's exceptions.
For the following reasons, we conclude that the Agency has not demonstrated that the award is deficient. Accordingly, the Agency's exceptions will be denied.
II. Background and Arbitrator's Award
The grievant, a teacher in the Agency's school system, was recruited outside the United States. While employed in Okinawa, Japan, the grievant entered the Agency's Inter-Regional Transfer Program (IRTP). Through the IRTP, she obtained a transfer to an Agency school in Zaragoza, Spain. After arriving in Zaragoza, the grievant received LQA for more than 7 months before the Agency informed her that the LQA had been paid erroneously and had to be repaid. She then filed a grievance.
When the grievance was not resolved, it was submitted to arbitration. The Arbitrator stated that the issue was the grievant's "entitlement . . . to Living Quarters Allowance . . . ." Award at 1.
The Arbitrator relied on U.S. Department of Defense Dependents Schools, Mediterranean Region and Overseas Federation of Teachers, 36 FLRA 861 (1990) (DoDDS, Mediterranean Region), in which the Authority denied the Agency's exceptions to another award in which the Arbitrator found that employees who are recruited outside the United States but are transferred under the IRTP have the same entitlement to LQA as teachers who are recruited in the United States. The Arbitrator stated that his previous award and the Authority decision "addressed themselves not only to the Government-wide regulation of the State Department, but also to the Agency's own regulation . . . ." Award at 9.(1)
The Arbitrator rejected the Agency's argument that, under its interpretation of its regulation, the grievant was not entitled to LQA. The Arbitrator stated that, consistent with his previous award, the question of whether a reassignment under the IRTP was "management-generated," so as to entitle the grievant to LQA under the applicable Department of Defense Directive, "does not depend on some magic formula, nor on its designation by Management, but on the facts surrounding its implementation . . . ." Id. According to the Arbitrator, those facts "leave no doubt that [the IRTP] is management-generated and management-operated and that employment can be terminated if a teacher fails to accept a relocation." Id. Accordingly, the Arbitrator sustained the grievance. He directed the Agency to restore the grievant's LQA and other benefits and awarded interest on all money owed to the grievant.
III. The Agency's Exceptions
The Agency contends that the award is contrary to Department of State Standardized Regulations (DSSRs) and Department of Defense (DoD) Directive 1400.25-M (the DoD Directive). The Agency asserts that, under the DSSRs, an employee recruited outside the United States is not entitled to LQA unless, as relevant here, the employee is reassigned pursuant to a "management-generated" action. Exceptions at 4. The Agency argues that the Arbitrator's conclusion that a transfer under the IRTP is "management-generated" is inconsistent with section 2-2b(6) of the DoD Directive. Id.
IV. The Union's Opposition
The Union contends that the award is consistent with all applicable regulations. According to the Union, the Agency's exceptions should be denied based on the Authority's decisions in Department of Defense Dependents Schools, Pacific Region and Overseas Education Association, Pacific Region, 30 FLRA 1206 (1988) (DoDDS, Pacific Region) and DoDDS, Mediterranean Region.
V. Analysis and Conclusions
Section 7122(a) of the Statute provides, as relevant here, that an arbitration award is deficient if it conflicts with any rule or regulation. Under this section, an award that conflicts with an enforceable Government-wide rule or regulation is deficient. See generally, U.S. Department of the Army, Fort Campbell District, Third Region, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 37 FLRA 186, 191-95 (1990) (Fort Campbell). In addition, an arbitration award that conflicts with agency rules or regulations is deficient if the rules or regulations govern the disposition of the matter resolved by the award and the rules or regulations do not conflict with provisions of an applicable collective bargaining agreement. Id. at 194.
This case involves Government-wide and Agency regulations. In particular, subsection 031.12c of the DSSRs provides that LQA may be paid to an employee who is recruited outside the United States provided that "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." This subsection is a Government-wide regulation. Overseas Education Association, Inc. and Department of Defense, Office of Dependents Schools, 22 FLRA 351, 356 (1986), affirmed sub nom. Overseas Education Association v. FLRA, 827 F.2d 814 (D.C. Cir. 1987). The DoD Directive states, in pertinent part, that LQA may be paid pursuant to subsection 031.12c of the DSSRs when an employee is relocated pursuant to a "management-generated action." The Directive also states, however, that a "move effected through a voluntary reassignment program is not considered to be a management-generated action."
The Agency asserts that the Arbitrator's award is inconsistent with the DoD Directive because the grievant's transfer was voluntary. Applying Fort Campbell, we conclude that the Agency has not demonstrated that the award is deficient on this basis.(2)
The Arbitrator concluded, based on his examination of the circumstances surrounding the IRTP's implementation as well as the fact that a teacher's employment can be terminated if the teacher refuses a reassignment under the IRTP, that a reassignment under that program is not voluntary and, instead, constituted a management-generated action. The Agency argues that the conclusion "that the transfer program was management-generated is contrary to agency regulation stating unambiguously that such moves are not management generated." Exceptions at 4 (emphasis in original).
We reject the Agency's argument. There is no reference, ambiguous or unambiguous, in the DoD Directive to the IRTP. Moreover, this is the sole Agency argument in support of its assertion that the award conflicts with the DoD Directive. That is, apart from its erroneous assertion that the Directive "unambiguously" states that transfers pursuant to the IRTP are not management-generated, the Agency offers no authority or support for its claim that the Arbitrator's award conflicts with the Directive. Such unsupported allegations provide no basis for finding an award deficient. For example, U.S. Department of Defense Dependents Schools and Overseas Education Association, 37 FLRA 226, 233 (1990).
The Agency has not established that the award conflicts with the Directive. Moreover, the Agency's assertion that the award conflicts with the DSSRs is based solely on the award's alleged conflict with the Directive. We conclude, therefore, that the Agency has not shown that the award is deficient under section 7122(a) of the Statute. Accordingly, we will deny the exceptions.
The Agency's exceptions are denied.
. . . .
031 United States Citizen Employees
031.1 Quarters Allowances
031.11 Employees Recruited in the United States
. . . .
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 Commonwealth of the Northern Mariana Islands, 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 Commonwealth of the Northern Mariana Islands, 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.
. . . .
. . . .
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. . . .
. . . .
(6) The appropriate Major Command decides whether an employee acquires an LQA under section 031.12c of the DSSR . . . . The Major Command may redelegate this authority . . . . Section 031.12c provides that an LQA may be given an employee recruited outside the United States if, "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 the agency." A "condition of employment," if not fulfilled, results in failure to gain or retain employment. Section 031.12c, DSSR, will be applied when an employee is relocated to another area by a management-generated action. It also will be applied when management must request that an employee not now eligible for LQA relocate to another area. A management request that an employee relocate is considered a management-generated action. A move effected through a voluntary reassignme