49:0658(62)AR - - DOD Dependents Schools and Overseas Education Association - - 1994 FLRAdec AR - - v49 p658



[ v49 p658 ]
49:0658(62)AR
The decision of the Authority follows:


49 FLRA No. 62

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF DEFENSE

DEPENDENTS SCHOOLS

(Agency)

and

OVERSEAS EDUCATION ASSOCIATION

(Union)

0-AR-2514

_____

DECISION

March 31, 1994

_____

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 Richard I. Bloch filed by the Agency 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.

The Arbitrator ordered the grievant, an overseas teacher, to be compensated for one day at her daily rate and one day of premium pay for her activities at the registration day of a conference, which day was scheduled on October 14, 1991, a Federal holiday. We will modify the award to vacate the award of premium pay.

II. Background and Arbitrator's Award

In September 1991, the Agency notified its teachers of learning-impaired students of an in-service training conference to be held on Monday, October 14 through Thursday, October 17, 1991. The grievant, a teacher of learning-impaired students, attended the conference. She arrived at the conference on Monday, October 14. Because October 14 was Columbus Day, a Federal holiday, and there was no school scheduled, she was not compensated for the day.(1) In her grievance, the grievant claimed that her activities at the conference on October 14 entitled her to be compensated with premium pay for the day. The Agency denied the grievance. The grievance was submitted to arbitration, and the Arbitrator stated the issue to be whether the Agency violated the parties' collective bargaining agreement by failing to pay the grievant holiday premium pay for October 14.

Before the Arbitrator, the Union argued that the grievant performed work on October 14 by registering at the conference and attending the conference dinner. The Union asserted that, therefore, she should be paid for the day and that it should be compensated at premium pay rates because it was a Federal holiday. The Agency acknowledged that the grievant was entitled to her basic rate of pay for October 15 through October 17 because attending the conference constituted compensable work activity. However, the Agency asserted that it properly refused to compensate the grievant for October 14. The Agency maintained that the registration for the conference was a brief act, which required only moments of the grievant's time, and that the conference dinner was merely a courtesy to those participants who had traveled extensive distances during the day to register for the conference.

At the outset, the Arbitrator denied the Union's motion to amend the grievance to include all similarly situated employees. On the merits, the Arbitrator sustained the grievance. He noted that Department of Defense (DoD) Directive 1400.13 governs the salaries and personnel practices applicable to overseas teachers and provides that teachers whose regular schedule requires them to teach on a Federal holiday will be entitled to basic pay plus premium pay. The Arbitrator conceded that the Directive does not precisely fit the situation of the grievant's attendance at the conference because she did not teach and she was not regularly scheduled to attend the conference. However, the Arbitrator found it significant that the Agency compensated all those who attended the conference on Tuesday, Wednesday, and Thursday at their regular daily rates. Because the Agency compensated teachers for these days even though they were not regularly scheduled teaching days, he viewed the sole question at issue to be whether the October 14 activities could properly be considered part of the conference.

The Arbitrator acknowledged that the activities of October 14 were preliminary in nature and were not substantive like the workshops that began on October 15. He also noted that Thursday was used for internal business and not workshops, but that the Agency compensated teachers for this time. He further found that the activities of October 14 constituted an important part of the conference. He noted the testimony of the conference planner that there would not have been enough time for the workshops on Tuesday and Wednesday if registration had not been on Monday, and that college credits granted for attendance could not have been offered if the workshops had been shortened. Thus, the Arbitrator concluded that the Monday registration and dinner constituted "the beginning of the conference and [that] it served a vital role in the overall scheduling process." Award at 6. He ruled that although there were no substantive presentations on Monday, as there were none on Thursday,

the registration and dinner process was an integral part of the overall conference. During that time, registrants received their program packages . . . . Attendees were thereby given a necessary head start, with time to review the materials and to meet and greet colleagues at the initial dinner. The dinner was, to be sure, a courtesy to the registrants, but backing up the registration process to the 14th served an important role in the overall scheduling of the conference . . . .

Id. at 6-7.

Accordingly, the Arbitrator ruled that the grievant participated in the conference beginning on Monday and that she was entitled to be compensated for her participation. Noting that the grievant's participation encompassed more than a half-day of work, which entitled her to a full day's pay under the salary schedule contained in the collective bargaining agreement, and that this participation was work on the Columbus Day holiday, the Arbitrator ordered the Agency to compensate the grievant for one day at her daily rate of $183.22 and one day of premium pay at her daily rate.

III. Positions of the Parties

A. The Agency

The Agency contends that the award of holiday premium pay to the grievant for Columbus day is contrary to DoD Directive 1400.13 (2) and the Government Employees Training Act (GETA) and implementing regulations, specifically 5 U.S.C.§ 4109(a)(1) and 5 C.F.R. § 410.602. The Agency also contends that the award of basic compensation for Columbus day is contrary to the Directive and is in excess of the Arbitrator's authority.

In arguing that the award of holiday pay is contrary to the Directive, the Agency maintains that section IV.C.4(e) of the Directive provides that educators whose regular schedule requires them to teach on any Federal holiday will be entitled to basic pay, plus premium pay at a rate equal to the daily rate. The Agency asserts that it is not disputed that the grievant did not teach on the holiday and was not regularly scheduled to teach on the holiday. The Agency claims that the Arbitrator could not, consistent with the Directive, conclude that the Monday activities were outside the regular teacher schedule and also award the grievant holiday premium pay for the day. Thus, the Agency contends that the award of premium pay conflicts with DoD Directive 1400.13 and is deficient.

In arguing that the award of premium pay is contrary to GETA, the Agency maintains that, absent circumstances that do not apply in this case, 5 U.S.C. § 4109(a)(1) and 5 C.F.R. § 410.602 prohibit the payment of holiday premium pay for employees engaged in training activities.

In arguing that the Arbitrator exceeded his authority, the Agency maintains that the Arbitrator framed the issue before him as whether the Agency violated the collective bargaining agreement by failing to pay the grievant premium pay for Columbus Day. The Agency argues that by this statement of the issue, the Arbitrator limited himself to an award of premium pay and, therefore, exceeded his authority by also awarding the grievant 1 day of basic pay. The Agency also argues that the award of basic compensation to the grievant violated the Directive. The Agency asserts that "[i]t is axiomatic that [the grievant] cannot receive compensation because [she] performed no work." Exceptions at 7. The Agency maintains that the grievant testified that there were no workshop activities on Monday. The Agency claims that, consequently, she performed no work and can receive no compensation. With respect to the conference dinner, the Agency specifically asserts that it is well established that Federal employees cannot be compensated for meal periods unless substantial duties are performed.

B. The Union

The Union contends that the award of basic compensation and holiday premium pay to the grievant was consistent with the Directive. The Union disputes the restrictive interpretation by the Agency of what constitutes teaching. The Union contends that it established in the hearing before the Arbitrator that teaching means any activity related to the educational process. To support this view, the Union notes that educators are paid for 190 workdays each school year, but that many of these days do not involve teaching. The Union maintains that educators work on academic committees, prepare grades, and participate in many other non-teaching functions and that all of these education-related activities constitute teaching within the meaning of the Directive, for which teachers are compensated.

The Union also disputes the Agency's contention that the grievant performed no work on Monday. The Union argues that the Arbitrator correctly found that the conference activities on Monday were compensable because those activities were an integral part of the conference. The Union further disputes that the activities were not compensable because they included a meal period. The Union argues that the question to be answered is whether the activities were primarily for the benefit of the employer or the employee; it asserts that the activities, including the conference dinner, were for the employer's benefit and, consequently, were compensable. The Union notes that under section IV.A.2. of DoD Directive 1400.13, teachers are to be compensated at their appropriate daily rate for every workday beyond 190 days. The Union argues that because the grievant worked on Columbus day, her school year was extended to 191 workdays for which she was entitled to be compensated under the Directive.

With respect to the Agency's argument under GETA, the Union first contends that the issue of whether the award is contrary to 5 U.S.C. § 4109(a)(1) should not be considered by the Authority because the issue of the prohibition of section 4109 was not presented to the Arbitrator. The Union further contends that if the Authority considers the issue of premium pay, the Authority should deny the exception because section 4109(a)(1) applies only to inter-agency training and not to intra-agency training, as was involved in this case. Alternatively, the Union contends that if the Act applies to intra-agency training, the facts of this case fall within the exception listed in 5 C.F.R. § 410.602(b)(3), which permits premium pay for "[a]n employee given training on . . . a holiday . . . because the costs of the training, premium pay included, are less than the costs of the same training confined to regular work hours[.]"

The Union contends that the Agency provides no basis for finding that the Arbitrator exceeded his authority. The Union claims that the issue as stated by the Arbitrator appropriately encompassed all of the arguments raised by the Agency and the Union and that those arguments clearly included the claim that the activities performed by the grievant constituted work for which the grievant was entitled to 1 day of salary. In addition, the Union claims that the entitlement to 1 day of pay is a necessary part of whether the grievant was entitled to premium pay because there can be no premium pay without basic pay.

IV. Analysis and Conclusions

A. The Arbitrator Did Not Exceed His Authority.

The Authority has specifically held that an arbitrator's award will be found deficient as in excess of the arbitrator's authority when the arbitrator resolves an issue not submitted to arbitration. For example, Air Force Space Division, Los Angeles Air Force Station, California and American Federation of Government Employees, AFL-CIO, Local 2429, 24 FLRA 516, 518 (1986). However, in reviewing awards to determine whether arbitrators exceeded their authority, we accord an arbitrator's formulation of the issue submitted in the absence of a stipulation by the parties the same substantial deference accorded an arbitrator's interpretation and application of the collective bargaining agreement. Id. In addition, we permit an arbitrator to extend the award to issues that necessarily arise from the issue as formulated by the arbitrator. Id. at 519. Furthermore, when the exception concerns whether the remedy awarded by the arbitrator exceeded the arbitrator's authority, we grant the arbitrator broad discretion to fashion a remedy that the arbitrator considers to be appropriate. Id.

Applying these principles in this case, we find that the Arbitrator did not exceed his authority by awarding, as a remedy, basic compensation in addition to premium pay. We are not persuaded by the Agency that the Arbitrator's description of the issue in terms of premium pay limited the issue so as to preclude the Arbitrator from addressing and awarding basic pay. In our view, such a restrictive application of the Arbitrator's formulation of the issue would not give proper deference to the Arbitrator's determination of the issue. As correctly stated by the Union, premium pay is always in addition to basic or regular compensation. Thus, we find that the Agency fails to establish that the Arbitrator's application of the issue he formulated to encompass basic compensation in any manner disregards the issue, as formulated, or is implausible, unfounded, or irrational.

B. The Award of Premium Pay Is Contrary to DoD Directive 1400.13.

The Department of Defense Overseas Teachers Pay and Personnel Practices Act, 20 U.S.C. §§ 901-907, (the Act) governs, among other matters, the compensation of teachers employed overseas by the Agency. The Act requires that "basic compensation" be fixed at a rate equal to the average of the range of rates of basic compensation paid to similar positions in urban school districts of 100,000 or more population within the United States. 20 U.S.C. § 903(c); Overseas Education Association and Department of Defense Dependents Schools, 29 FLRA 485, 509 (1987) (OEA). While the scheme prescribed by the Act imposes certain constraints on the establishment of the basic compensation of overseas teachers, it vests the Department of Defense with discretion over matters other than basic compensation. Id. In particular, the Act commits to the discretion of the Department of Defense matters dealing with "additional compensation." 20 U.S.C. § 902(a)(9). More specifically, the Authority has held that matters dealing with the payment of overtime and the payment of compensation for duties performed beyond the normal duty day are matters involving additional compensation that are within the discretion of the Agency. OEA, 29 FLRA at 510. As recognized by the parties and the Arbitrator, the Agency has exercised that discretion by promulgating DoD Directive 1400.13, which deals with the additional compensation of teachers. Section IV.C.4.e(2) of that Directive provides that educators whose regular work schedule requires them to teach on a holiday will be entitled to basic pay and to premium pay equal to the daily rate. Section IV.A.2. provides that teachers will be paid for workdays beyond 190 in a school year.

We find that the award of holiday premium pay is contrary to the plain language of section IV.C.4.e(2). As recognized by the Arbitrator, section IV.C.4.e(2) of the Directive specifically states that educators will not be entitled to premium pay for holiday work unless they are regularly scheduled to teach on that day. We agree with the Agency that the grievant did not teach on the holiday and was not regularly scheduled to teach. The Arbitrator even conceded that the situation presented "d[id] not precisely fit" the provisions of the Directive. Award at 4. In awarding the grievant premium pay, the Arbitrator was persuaded by the Agency's compensation of the grievant and other participants at their daily rates for attending the conference on Tuesday, Wednesday, and Thursday. In addition, in opposing the Agency's contention, the Union argues that the compensation of the other days shows that the grievant taught on Monday within the meaning of the Directive. However, the Directive does not require that a teacher be engaged in regularly scheduled teaching in order to be compensated for workdays of the school year that are not holidays. Thus, the Arbitrator's reliance on the compensation of the other days of the conference was misplaced in determining to award the grievant holiday premium pay. The Union's reliance is similarly misplaced. Accordingly, we find that the award of premium pay is deficient, and we will vacate that portion of the award.(3)

C. The Award of Basic Compensation Is Not Deficient

We further conclude that the award of basic compensation for the Monday activities is not deficient. The Union argues that the Arbitrator essentially found that as a result of the Monday activities, the grievant's school year was extended from 190 workdays to 191 workdays and that, under section IV.A.2., the grievant must be compensated for that extra workday, at least at her daily rate. We find that the Agency fails to establish otherwise.

The Arbitrator was guided in his interpretation and application of the Directive by the Agency's own treatment of the remainder of the conference. He found it "[s]ignificant" that the Agency compensated teachers, including the grievant, at their daily rates for attending the conference on Tuesday, Wednesday, and Thursday. Award at 5. He also specifically noted that they were compensated for the activities of Thursday, even though those activities did not involve workshop presentations. He found that the Monday registration and dinner served a vital role in the overall scheduling process and was an integral part of the overall conference. Accordingly, he found that the activities on Monday should be treated like the activities of the rest of the conference, for which the Agency had compensated all participants, and that the activities warranted premium pay because they were performed on a Federal holiday.

Although we have found the award of holiday premium pay deficient, the Agency has not demonstrated that the Arbitrator's interpretation and application of the Directive with respect to basic compensation is also deficient. In particular, the Agency has not established that the Monday activities were sufficiently different from those on Tuesday, Wednesday, and Thursday to warrant finding deficient the Arbitrator's award of basic compensation to the grievant for the Monday activities. Based on the Arbitrator's findings regarding the grievant's activities on Monday and the relationship between those activities and the success of the overall conference, we reject the Agency's argument that the award of basic compensation for Monday is deficient.

In addition, the Agency's reliance on legal principles and case precedent concerning meal time is misplaced because it is undisputed that the provisions of title 5 of the U.S. Code concerning what constitutes work do not apply to overseas teachers. Moreover, the Authority has consistently refused to be guided by such principles when they do not apply to overseas teachers. See Overseas Education Association and U.S. Department of Defense Dependents Schools, 28 FLRA 700, 711 (1987) (rejecting reliance on the law applicable to prevailing rate employees because the law does not govern payment of additional compensation to overseas teachers).

In our view, the Agency's arguments constitute nothing more that disagreement with the Arbitrator's determination that the Monday activities were indistinguishable from the rest of the conference activities for purposes of basic compensation and provides no basis on which to find the award of basic compensation contrary to the Directive. Accordingly, we will vacate only the award of holiday pay. We will not disturb the Arbitrator's order to compensate the grievant for one day at her daily rate of $183.22.

V. Decision

The award is modified to vacate the award to the grievant of one day of premium pay at her daily rate.




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

1. Overseas teachers are paid for working 190 days a year, and they are compensated only for days actually worked. Overseas teachers are not compensated on Federal holidays or during school recess periods.

2. Although the Agency argues that the award is contrary to the DoD Directive 1400.13, the Agency character