51:1246(98)AR - - Overseas Education Association and DOD Dependents Schools, Arlington, Virginia - - 1996 FLRAdec AR - - v51 p1246
[ v51 p1246 ]
The decision of the Authority follows:
51 FLRA No. 98
FEDERAL LABOR RELATIONS AUTHORITY
OVERSEAS EDUCATION ASSOCIATION
U.S. DEPARTMENT OF DEFENSE DEPENDENTS SCHOOLS
April 30, 1996
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Theodore H. Ghiz filed by the Union under section 7122(a) of the Federal Labor-Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.
The Arbitrator denied a grievance claiming that the Agency had violated law and regulation in failing to compensate educators for work performed during a certain time period according to the salary schedule for the new year. For the following reasons, we conclude that the Union's exceptions fail to establish that the Arbitrator's award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.
II. Background and Arbitrator's Award
The Union filed a grievance claiming that the Agency violated law and regulation by paying educators who worked between August 1 and the beginning of the school year (hereinafter "the disputed period") under the previous year's salary schedule. The Union claimed that the educators should be compensated according to the new salary schedule, which is effective on August 1 of each year. When the grievance was not resolved, it was submitted to arbitration. The Arbitrator framed the issue as follows:
Did D[epartment] o[f] D[efense] D[ependents] [Schools] violate Department of Defense regulation 1400.13 by not compensating all educators who were required to work between August 1 and the beginning of the school year at the new salary schedules? or
Is DoDD[S] violating the law and regulations with regard to unit employees who work between August 1 of the year and the beginning of the school year?
Award at 5.
The Arbitrator found that, consistent with established past practice, the Agency annually issued separate salary schedules for work performed when school is in session and for work performed during "recess periods."(1) Id. at 8. The Arbitrator determined that the salary schedule that pertains to work performed during recess periods, the "Overseas Educators School Year . . . Salary Schedule for 'Other Compensation'" (hereinafter "salary schedule for 'other compensation'"), applied to the work performed during the disputed period, and that this schedule required that the daily rate for such work is to be based on "'the prior school year salary schedule.'" Id., citing the 1992-1993 salary schedule for "other compensation."(2) (Emphasis in original).
The Arbitrator rejected the Union's argument that the Agency's practice of paying for work performed during the disputed period at the previous year's rate violated DoD Directive 1400.13 (hereinafter "the Directive"). The Arbitrator determined that, under section IV.C.4.c. of the Directive, the Agency was required to pay educators who worked during the disputed period at "'the daily rate for their salary for each day of such work performed.'"(3) Award at 2. The Arbitrator found that the Directive was "silent" as to whether the daily rate was to be based on the prior year's salary schedule or the schedule for the new year and, could not, therefore, overcome the Agency's past practice. Id.
The Arbitrator also rejected Union arguments that: (1) the Agency had not consistently followed a practice of paying for work performed during the disputed period at the previous year's rate; and (2) such practice is inconsistent with a survey of practices in school districts in the United States conducted by the Union. With respect to the former argument, the Arbitrator stated that, although there was evidence that "some educators were paid for recess appointment at the new rate[,]" the Agency maintained that such payments were in error and had taken steps to correct the error. Id. at 10. As for the latter argument, the Arbitrator found the Union's survey "meaningless since the survey was not sanctioned by the Wage Fixing Authority, nor is there authority for [the Union] to conduct a survey." Id.
The Arbitrator denied the grievance, as follows:
The annual salary schedules [are] for work performed during the regular school year and work performed during recess appointments is paid at a different rate as clearly stated. The provisions for "other compensations" are not vague, nor ambiguous, and the Agency has been consistent in the application thereof. It is clear from the foregoing that [the Agency] is not violating the law and regulations, including but not limited to Department of Defense Regulation 1400.13 as that regulation is currently being applied.
III. Positions of the Parties
The Union argues that the award is deficient under section 7122(a)(1) of the Statute because it is contrary to section IV.C.2.g. of the Directive, which states:
Effective Date of Salary Schedules. New salary schedules will have an effective date of August 1 of each year.
Exceptions at 4. The Union maintains that, because new salary schedules are effective on August 1, the Agency is not permitted to pay educators at the prior year's rate for work performed after August 1. The Union argues that the Directive "takes precedence over the language of the salary schedule" because the salary schedule is "neither a DOD directive nor [a] regulation . . . ." Id. at 6, 5. Moreover, the Union asserts that, because the work performed during the disputed period is "in preparation for the start of the new school year[,]" it is different from other work performed during recess periods, such as "summer school and work done finishing up the previous school year[,]" and should be compensated on the basis of the new school year's salary schedule. Id. at 5, 7.
The Union also claims, relying on March v. United States, 506 F.2d 1306 (D.C. Cir. 1974), that the Directive must be interpreted to apply new salary schedules to work performed during the disputed period because paying educators at the prior year's rate is contrary to the Defense Department Overseas Teachers Pay and Personnel Practices Act, 20 U.S.C. § 901 et seq. (the Act).(4)
The Union claims that the Arbitrator's contrary interpretation renders the award deficient under section 7122(a)(1) of the Statute as inconsistent with the Act itself. The Union also relies, in this regard, on the survey rejected by the Arbitrator. According to the Union, the survey "shows that the majority of comparable school systems pay employees who perform work just prior to the start of the school year at the new year's pay rate." Exceptions at 8.
The Agency responds that there is no conflict between the Directive and the salary schedule, and that nothing in the Directive precludes payment for recess period work based on a prior school year's salary schedule. The Agency states that the setting of salaries for recess period work is within the Agency's discretion under 20 U.S.C. § 902(a)(9). In addition, the Agency claims that the Union errs in asserting that the salary schedule is neither a DoD directive nor a regulation. According to the Agency, the salary schedule has the full force of a regulation and is published in accordance with section V.A. of the Directive.(5)
IV. Analysis and Conclusions
A. The Award Is Not Contrary to DoD Directive 1400.13
Section 7122(a)(1) of the Statute provides that an arbitration award will be found deficient if it is contrary to any law, rule or regulation. For purposes of section 7122(a)(1), the Authority has defined "rule or regulation" to include both Government-wide and governing agency rules and regulations. 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, 192 (1990). In reviewing arbitration awards for consistency with rule or regulation, the Authority must review the questions of law raised by the Arbitrator's award and the Union's exception "de novo." National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995); citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994).
Section IV.C.2.g. of the Directive states that the annual August 1 effective date applies to "new salary schedules." (Emphasis added). There are ten separate salary schedules that DoDDS issues each year. Nine of these pertain to various occupations and apply to the regular school year. The tenth schedule applies to "other compensation" and includes summer school and recess period appointments. Consistent with section IV.C.2.g. of the Directive, each of the 10 salary schedules specifically states that its effective date is August 1.
As the August 1 effective date applies to all the salary schedules issued by DoDDS--the one that pertains to recess period work and those that do not--there is no support for the Union's argument that employees working after August 1 must be compensated at the upcoming school year's salary. The Directive provides only that salary schedules have an effective date of August 1; the Directive is silent regarding which salary schedule is to be applied to particular types of work. The Arbitrator found that the "other compensation" schedule applies to the work at issue here. That salary schedule specifically states that "[t]he daily rate for an educator employed during a recess period apart from the regularly established school year will be as provided by the prior school year salary schedule for the appropriate occupation." (Emphasis supplied). The Arbitrator also found that there was a "consistent past practice of differentiating between compensation paid for work performed during recess periods and the regular school year . . . ." Award at 10. In these circumstances, there is no basis for concluding that work performed after August 1 and before commencement of the school year is not "recess period [work] apart from the regularly established school year," as set forth in subsection (d) of the salary schedule. Similarly, no support is offered for the Union's argument that section IV.C.2.g. of the Directive nullifies the specific instructions that pay for recess period work is to be based on the prior year's salary schedule.
In addition, contrary to the Union's arguments, 20 U.S.C. § 901, et seq. does not compel interpreting the Directive to require applying the new salary schedule for the regular school year to work performed during the disputed period. In this regard, the Union asserts correctly that sections 902(a)(2) and 903(c) require teachers' "basic compensation" to be fixed at rates comparable to those of the group specified in the statute. However, the Union offers no support, and none is apparent, for construing this section to require paying teachers at any particular rate for work performed during recess period work in general or work performed during the disputed period in particular. Similarly, the Union's reliance on March v. United States, is misplaced. That decision concerned only the basis for computing teachers' "basic compensation" under sections 902(a)(2) and 903(c); it did not, implicitly or explicitly, address the basis for computing pay for work performed during the disputed period.
Next, the Un