49:0705(67)AR - - DOD, Antilles Consolidated School System, Fort Buchanan, PR and Antilles Consolidated Education Association - - 1994 FLRAdec AR - - v49 p705



[ v49 p705 ]
49:0705(67)AR
The decision of the Authority follows:


49 FLRA No. 67

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF DEFENSE

ANTILLES CONSOLIDATED SCHOOL SYSTEM

FORT BUCHANAN, PUERTO RICO

(Agency)

and

ANTILLES CONSOLIDATED EDUCATION ASSOCIATION

(Union)

0-AR-2520

_____

DECISION

April 8, 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 Joseph M. Sharnoff 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 exceptions.

The Union filed a grievance alleging that the Agency violated law and the parties' collective bargaining agreement by failing to provide unit employees with the same number of teaching assignments as were provided to teachers in the District of Columbia Public Schools (DCPS). The Arbitrator found that the Agency had not violated law or the agreement and denied the grievance.

For the following reasons, we conclude that the Union's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the Union's exceptions.

II. Background and Arbitrator's Award

Article 15 of the parties' 1986 agreement, provides, in pertinent part:

The purpose of this article is to . . . establish unit employees' . . . incidents of employment consistent with the requirements of 20 U.S.C. 241, which requires that such matters be established on the same basis as for similar employees in the [DCPS]. In order to meet unique needs of the Antilles Consolidated Schools System . . . the parties have found it necessary to assign more student contact time per day to ACSS teachers than is currently assigned to teachers in the [DCPS]. This additional workload . . . has been compensated for by establishing a duty year and instructional year shorter than that currently in place in D.C. The parties believe that this trade-off establishes overall duty-time requirements which are fundamentally at parity with those of similar D.C. employees and consistent with . . . 20 U.S.C. 241 . . . .

Exceptions, Attachment 5 at 25.(*)

In 1991, the parties negotiated a Memorandum of Understanding (MOU), setting forth those incidents of employment necessary to comply with 20 U.S.C. § 241. The MOU provides, in pertinent part:

To achieve and maintain compliance with 20 USC 241 and Article ___ of the Negotiated Agreement . . . the Employer shall provide . . . incidents of employment for unit employees on the same basis as provided for personnel in similar positions in the . . . (DCPS).

Exceptions, Attachment 3 at 1. The MOU also listed those incidents of employment which were then in effect in the DCPS, including, as relevant here, a "[m]aximum of five (5) teaching assignments per day for grades 7-12[.]" Id. at 2.

Thereafter, the Union filed a grievance, claiming that the Agency violated 20 U.S.C. Section 241 by requiring its teachers to perform more teaching assignments than were required of teachers in the DCPS. The Union sought to reduce the Agency's number of teaching assignments from six to five, and requested that those teachers who performed extra assignments since June 4, 1990, be compensated for the assignments. When the grievance was not resolved, it was submitted to arbitration on the following issues:

1. Whether the Agency violated 20 U.S.C. Section 241, as amended, and the Parties['] Memorandum of Understanding, dated March 8, 1991, by requiring teachers to perform the Extra Duty Assignment of teaching an additional class assignment beyond the five teaching assignment maximum.

2. Whether the Agency violated the Parties' 1986 Agreement by not giving the teachers a stipend for performing the Extra Duty Assignment.

Award at 2.

The Arbitrator determined that the MOU had not been implemented and that, therefore, the Agency was not obligated to provide its employees with incidents of employment that conformed exactly to those afforded to employees in the DCPS. Instead, the Arbitrator found that Article 15 of the parties' 1986 agreement was still in effect and that in Article 15, the parties had agreed to increase the "teacher-pupil contact time per duty day in exchange for a shorter duty year." Id. at 15. The Arbitrator rejected the Union's claim that, by permitting the Agency to require six teaching assignments instead of the five required of teachers in the DCPS, Article 15 was unenforceable as in conflict with 20 U.S.C. § 241. In particular, the Arbitrator found that nothing in 20 U.S.C. § 241 or its legislative history prevented the parties from reaching, as the Arbitrator found they did in Article 15, a "mutually acceptable accommodation as to a rebalancing or redistribution of such incidents of employment as are in effect in the DCPS." Id. at 16. The Arbitrator concluded that the Agency's practice of requiring teachers to perform six teaching assignments per day was "appropriate" under the terms of Article 15 of the 1986 agreement and he denied the grievance. Id. at 22.

III. Exceptions

The Union claims that Article 15 of the 1986 agreement is unenforceable because it conflicts with 20 U.S.C. § 241. The Union states that, under 20 U.S.C. § 241, the parties may not agree to deviate from the DCPS' incidents of employment. The Union also claims that the award does not draw its essence from the parties' agreement, specifically the MOU, because the Arbitrator refused to give effect to the MOU. According to the Union, the MOU superseded Article 15.

The Union contends further that, even if Article 15 is still in effect, the award is based on nonfact. The Union maintains that the Arbitrator's finding that the parties agreed, in Article 15, that teachers may be required to perform more than five teaching assignments constitutes a nonfact. According to the Union, by agreeing to more student contact time per day, the parties agreed only to longer teaching periods, and not to more class assignments. The Union also argues that the award is based on nonfact because the Arbitrator linked the MOU, by its terms, to a successor collective bargaining agreement. Exceptions at 13. The Union contends that the MOU is separate and distinct from the parties' successor agreement which, according to the Union, is currently at impasse.

IV. Opposition

The Agency maintains that Article 15 does not conflict with 20 U.S.C. § 241 because that statutory provision does not require the Agency to provide unit employees with incidents of employment that are identical to those provided to teachers in the DCPS. The Agency also maintains that the award draws its essence from the parties' 1986 agreement and that the Arbitrator concluded correctly that the MOU was to be implemented only with a successor agreement.

V. Analysis and Conclusions

We reject the Union's claim that Article 15 of the parties' 1986 agreement is unenforceable as inconsistent with 20 U.S.C. § 241. The Union has cited no authority, and none is apparent to us, for its contention that the parties were prohibited by 20 U.S.C. § 241 from expressly agreeing, in Article 15, to establish incidents of employment which varied from those in existence in the DCPS. 20 U.S.C. § 241(a)(2) requires only that incidents of employment shall be provided "on the same basis" as provided to similar DCPS positions. Similarly, although the court, in Antilles Council of School Officers, Local 68, American Federation of School Administrators, AFL-CIO v. Lehman, 550 F.Supp. 1238, 1245 (1982) (Antilles), held that it had jurisdiction to consider "allegations of unequal employment benefits" made by certain nonunit Agency employees, nothing in that decision establishes, or supports the argument that, Article 15 of the parties' agreement is unenforceable.

In Antilles, the court rejected the plaintiffs' claim that section 241 conferred on them a right to engage in collective bargaining. In so doing, the court found no indication in section 241 that Congress intended to prescribe the process by which employment benefits would be established for Agency employees. The court also stated, in this connection, that it was unclear whether, or to what extent, collective bargaining would affect the nature of employment benefits provided to Agency employees. In particular, the court noted that it was "possible that the [plaintiff employees] may bargain themselves out of some employment benefits conferred upon their D.C. counterparts in exchange for some other incident of employment of a local nature that they may deem more important." Id. at 1244 (footnote omitted).

As set forth above, in Article 15, the parties specifically agreed that it was "necessary to assign more student contact time per day" to unit employees than was assigned to teachers in the DCPS. Article 15 provides that this necessity arose because of the Agency's "unique needs" and that the "additional workload" had been "compensated for" by establishing a shorter duty year for Agency employees than was in effect in the DCPS. The article specifically states the parties' understanding and agreement that its "trade-off" established work requirements that were "fundamentally at parity" with those in the DCPS and were "consistent with the mandate of 20 U.S.C. [§] 241."

It is clear that, as plainly worded and interpreted by the Arbitrator, Article 15 establishes certain conditions of employment that vary from those in the DCPS. It is equally clear that the parties agreed that such variation resulted from a negotiated compromise and that, despite the variation, unit employees' incidents of employment were "fundamentally at parity" with those in the DCPS. Noting particularly the court's statement in Antilles that collective bargaining could result in such a trade-off, we find that the Union has not demonstrated that, in concluding that Article 15 was enforceable, the award is inconsistent with 20 U.S.C. § 241.

We also reject the Union's contention that the award does not draw its essence from the MOU. The Arbitrator clearly found that the MOU was a tentative agreement that had not been implemented. The Union's argument that the MOU was in effect and that the award fails to draw its essence from the MOU constitutes mere disagreement with the Arbitrator's factual findings. Disagreement with an arbitrator's finding of fact forms no basis to find an award deficient. See General Services Administration, Region 10, Auburn, Washington and American Federation of Government Employees, Council 236, 47 FLRA 585, 591 (1993).

Finally, we reject the Union's contention that the award is based on nonfact. To establish that an award is deficient on this ground, the party making the allegation must demonstrate that the central fact underlying the award is clearly erroneous but for which a different result would have been reached by the arbitrator. For example, U.S. Department of the Treasury, Internal Revenue Service, Southeast Region, Atlanta, Georgia and National Treasury Employees Union, Chapter 6, 46 FLRA 572, 577 (1992).

The Union asserts that the Arbitrator's conclusions that Article 15 permitted the Agency to require certain teachers to perform six teaching assignments per day and that the MOU was linked to a successor agreement constitutes nonfacts. However, the Arbitrator's conclusion that Article 15 permitted the Agency to require teachers to perform six teaching assignments per duty day constitutes his interpretation of the contract provision. Similarly, the Arbitrator's conclusion that the MOU was linked, by its terms, to a successor agreement because it referenced and required compliance with an article in that agreement constitutes his interpretation of the MOU.

An arbitrator's interpretation of a contract provision is not a fact that can be challenged as a nonfact. See American Federation of Government Employees, AFL-CIO, Local 3615 and U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, 44 FLRA 806, 818 (1992)(SSA); and U.S. Department of the Treasury, Internal Revenue Service, Brooklyn District and National Treasury Employees Union, Chapter 53, 41 FLRA 1295, 1300-01 (1991). Therefore, the Union has not demonstrated that the Arbitrator's award is based on nonfact. Instead, this exception constitutes mere disagreement with the Arbitrator's interpretation and application of portions of the parties' agreements and provides no basis for finding the award deficient. SSA, 44 FLRA at 818.

VI. Decision

The Union's exceptions are denied.




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

*/ 20 U.S.C. § 241(a)(2) provides, in pertinent part:

To the maximum extent practicable, the local educational agency . . . shall take such action as may be necessary to ensure that the education provided pursuant to such arrangement is comparable to free public education provided for children in comparable communities . . . Personnel provided for under this subsection outside of