52:0003(1)AR - - DOD Dependents Schools, Arlington, Virginia and Overseas Education Association - - 1996 FLRAdec AR - - v52 p3



[ v52 p3 ]
52:0003(1)AR
The decision of the Authority follows:


52 FLRA No. 1

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF DEFENSE DEPENDENTS SCHOOLS

ARLINGTON, VIRGINIA

(Agency)

and

OVERSEAS EDUCATION ASSOCIATION

(Union)

0-AR-2638

_____

DECISION

August 15, 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 Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.

The Arbitrator's award ordered the Agency to reimburse the grievants for the cost of travel to and from their teaching positions during the 1992 summer recess.

For the following reasons, we conclude that the Agency has failed to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the Agency's exceptions.

II. Background and Arbitrator's Award

The two grievants, Patricia Taft and Patricia Petty, are teachers who were initially hired in the United States (stateside hires) and served at overseas posts. As stateside hires, they were eligible for and signed agreements to transport an employee and the employee's household goods to an overseas work location (transportation agreements). Also, during summer recesses, they were granted renewal agreement travel (RAT) pursuant to their expressed written intent to teach the following school year at their overseas posts.

Taft married an employee of the Agency, resigned, and was rehired as a local hire.(1) She relinquished her transportation agreement as she traveled on her husband's eligibility. In July 1992, Taft's husband retired from the Agency and returned to the United States. Petty also married an Agency employee and resigned. She was rehired in Okinawa as a local hire in 1989. In April 1992, Petty's husband died. Subsequently, both grievants requested RAT to travel to the United States during the summer of 1992 and then return in the fall of 1992 to their positions in Korea and Okinawa, respectively. According to the Arbitrator, both requests were denied.(2)

The grievants traveled to the United States during the 1992 summer recess and paid their own expenses. Afterward, they grieved the Agency's refusal to grant them RAT for the 1992 summer recess. The Agency denied the grievance and stated that RAT was denied because the grievants had not been employed for at least 1 year after obtaining their own transportation agreements.(3)

The parties submitted the following issue to the Arbitrator:

Did the employer violate law, contract or regulation by denying renewal agreement travel to [the grievants] during the summer recess, 1992? If so, what shall the remedy be?

Award at 15.

The Arbitrator found that the grievants were entitled to RAT, both under the former JTRs and the revised JTRs.(4) He found that the former JTRs "expressly provided that locally hired personnel who served [the Agency] for a period of 1 year from the date of employment or a period of time which, when added to their immediate prior period of civilian or military service, totals the prescribed tour of duty for the area, whichever is greater[,]" were entitled to RAT. Id. at 17.

The Arbitrator acknowledged the Agency's argument that the revised JTRs required that employees serve 1 year after signing their own transportation agreements to become entitled to RAT. However, he considered the entire revised JTRs, C4003, which provides, in the alternative, that an employee is eligible for RAT if the employee serves "a period of time which when added to [his or her] immediate civilian or military service before signing the agreement, totals the prescribed tour of duty for the area[.]" Id. at 20 (emphasis omitted). The Arbitrator found that both grievants' immediate previous service was greater than 1 year and determined that they were entitled to RAT under the revised JTRs.

As his award, the Arbitrator sustained the grievance and ordered the Agency to reimburse the grievants for the costs of travel to and from their posts during the 1992 summer recess.

III. Exceptions

A. Agency's Contentions

The Agency contends that the Arbitrator violated 5 U.S.C. §§ 5722 and 5728 by: (1) finding that the grievants were entitled to RAT even though they did not serve 1 school year(5) after signing their own transportation agreements; and (2) counting time the grievants worked as teachers immediately prior to the date they signed the new transportation agreements to find that the grievants had met the 1 school year minimum service requirement. The Agency states that 5 U.S.C. § 5728 requires that employees serve 1 year under their own transportation agreement to be eligible for RAT.

The Agency also asserts that the Arbitrator ignored the requirements in the Federal Travel Regulations (FTRs) that the grievants serve the prescribed tour of duty and sign an agreement to return for another year to be eligible for RAT. The Agency contends that only service completed after the grievants signed their own transportation agreements may be credited toward the prescribed tour of duty. The Agency maintains that, as local hires, the grievants were precluded from meeting the tour of duty requirement while they were still covered by their spouses' transportation agreements.

In addition, according to the Agency, Article 48, Section 6 of the parties' agreement provides that unit employees shall be authorized RAT during summer recess period "'upon completion of their prescribed tour of duty under their transportation agreement.'" Exceptions at 12 (emphasis in original). The Agency argues that the award shows a manifest disregard for the parties' agreement.

Finally, the Agency claims that the Arbitrator erroneously believed that because the grievants had been entitled to transportation agreements in their own right when they were first hired, they were entitled to their own new agreements after they lost entitlement under their spouses' transportation agreements. The Agency states that the Arbitrator "suggests that due to the grievants' longevity in service to [the Agency] they are entitled to [RAT]." Exceptions at 13. The Agency also argues that the Arbitrator improperly relied on a previous arbitration case.

B. Union's Opposition

The Union asserts that the Arbitrator's award is consistent with law. According to the Union, the Arbitrator found that because the grievants met the requirements for RAT under the FTRs, the Agency was required by law to pay the grievants' RAT expenses. The Union also argues that the award is consistent with the JTRs in that the Arbitrator found that under his interpretation, the grievants were eligible for RAT under either the former or the revised JTRs.

The Union maintains that the award was based on a finding that the grievants met the service requirement of 1 school year, which is defined in Article 48 of the parties' agreement.

The Union states that the Agency has not demonstrated that the award was based on any error in the central facts of the case. Consequently, the Union argues that the Agency's exception should be denied.

IV. Analysis and Conclusions

A. The Award Is Consistent with 5 U.S.C. § 5722 and 5 U.S.C. § 5728 and the FTRs

The issue before the Arbitrator involved the grievants' eligibility for RAT. The premise of the Agency's arguments is that for purposes of RAT, it may credit only that service performed by an employee after the employee signs a transportation agreement. Although the only relevant provision that sets forth this requirement is contained in the revised JTRs, the Agency does not argue that the award is contrary to the JTRs. Rather, it contends that the award is deficient as contrary to 5 U.S.C. §§ 5722 and 5728 and to the FTRs, which are Government-wide regulations.

Because the Agency's exceptions challenge the award's consistency with sections 5722 and 5728, and with the FTRs, we must review the question of law raised by the award and the parties' positions 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).

1. 5 U.S.C. §§ 5722 and 5728

Section 5722 deals only with travel and transportation expenses, not with RAT. The Agency has not shown, and it is not otherwise apparent, that the award violates section 5722. Accordingly, we find that the Agency's reliance on section 5722 is misplaced.

Section 5728 states that an agency shall pay the expenses of round-trip travel for an employee after the employee has satisfactorily completed an agreed period of service outside the continental United States (1 school year for teachers) and has signed a written agreement to return for duty at the same or another post of duty outside the continental United States. Section 5728 contains no other requirement governing an employee's entitlement to expenses for round-trip travel. The Agency cites no legislative history and provides no support for its claim that section 5728 conditions entitlement to such expenses on 1 year of service after signing a transportation agreement. Therefore, we construe this section to mean that an agency is required to pay RAT expenses, as applicable in this case, for a teacher who has completed teaching for 1 school year and who has signed an agreement to return to teach the following year. Consistent with this construction, we find that the award is not inconsistent with 5 U.S.C. § 5728.

2. The FTRs

The grievants are subject to the FTRs under section 302-1.2(a)(6), 41 C.F.R. § 302-1.2(a)(6). Section 302-1.13 of the FTRs addresses overseas tour RAT and provides that employees will be eligible for RAT if the employees have satisfactorily completed the prescribed tour of duty and have signed a new written agreement for another period of service.(6)

The Arbitrator found that the grievants met both of these requirements. It is not disputed that the grievants had signed new written agreements to return to teach the following year. Accordingly, this requirement need not be discussed further.

To determine whether the Arbitrator correctly found that the grievants fulfilled the first requirement--completion of an agreed period of service or the prescribed tour of duty--it is necessary to decide when service for purposes of RAT begins to be credited. The FTRs do not specify when an employee begins to earn credit for RAT purposes. Specifically, nowhere in the FTRs is there a requirement that only time after an employee signs a transportation agreement can be counted for purposes of determining entitlement to RAT. The FTRs only require completion of the prescribed period of service or tour of duty.(7) Accordingly, in the absence of any support for adding requirements that do not appear in the regulation itself, we construe the FTRs to require teachers to teach for the prescribed tour of duty in order to become entitled to RAT.

Consistent with this construction of the FTRs, teachers are entitled to RAT if they have completed the prescribed tour of duty, which is 1 school year. The grievants had completed teaching at least 1 school year. Consequently, we find that the grievants satisfied the required tour of duty so as to be eligible for RAT under the FTRs. Accordingly, we deny this exception.

B. The Award Draws Its Essence from the Collective Bargaining Agreement

The Arbitrator interpreted Article 48, Section 6 of the parties' agreement and determined, based on the evidence submitted, that the grievants were entitled to RAT.(8) The Arbitrator found that, pursuant to that agreement provision, teachers are authorized to receive RAT after completion of the prescribed tour of duty under their transportation agreement. The Agency has not demonstrated that the Arbitrator's interpretation of the parties' agreement is implausible, irrational, or unconnected to the wording of the agreement. Consequently, we find that the Agency has not demonstrated that the award fails to draw its essence from the parties' agreement. See United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-76 (1990).

C. The Award Is Not Based on a Nonfact

To establish that an award is based on a nonfact, the appealing party 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. U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593 (1993). The mere fact that the appealing party disputes an arbitral finding does not provide a basis for concluding that an award is based on a nonfact. American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Health Care Finance Administration, Baltimore, Maryland, 51 FLRA 576, 579 (1995).

The Agency has not established that the Arbitrator's acknowledgment of the grievants' immediately previous service constitutes a "fact" underlying the award. The Arbitrator concluded that the grievants had each served at least 1 school year, by adding the time the grievants served during the 1991-92 school year. The Arbitrator's conclusion resulted from his application of his interpretation of the parties' agreement and applicable law to the evidence presented and, as such, cannot be challenged as a nonfact. See American Federation of Government Employees, Local 1802 and Social Security Administration, Golden Teleservice Center, Golden, Colorado, 50 FLRA 396, 398 (1995). Likewise, the Agency has not shown that the Arbitrator's reference to another arbitration decision was a central fact, but for which a different result would have been reached. Accordingly, we find that the Agency has not demonstrated that the award is deficient because it is based on a nonfact.

V. Decision

The Agency's exceptions are denied.

APPENDIX

5 U.S.C. § 5722 states in pertinent part:

§ 5722. Travel and transportation expenses of new appointees; posts of duty outside the continental United States

(a) Under such regulations as the President may prescribe and subject to subsections (b) and (c) of this section, an agency may pay from its appropriations--

(1) travel expenses of a new appointee and transportation expenses of his immediate family and his household goods and personal effects from the place of actual residence at the time of appointment to the place of employment outside the continental United States; and

(2) these expenses on the return of an employee from his post of duty outside the continental United States to the place of his actual residence at the time of assignment to duty outside the United States.

(b) An agency may pay expenses under subsection (a)(1) of this section only after the individual selected for appointment agrees in writing to remain in the Government service for a minimum period of--

(1) one school year as determined under chapter 25 of title 20, if selected for appointment to a teaching position, except as a substitute, in the Department of Defense under that chapter;

. . . .

(c) An agency may pay expenses under subsection(a)(2) of this section only after the individual has served for a minimum period of--

(1) one school year as determined under chapter 25 of title 20, if employed in a teaching position, except as a substitute, in the Department of Defense under that chapter;

. . . .

5 U.S.C. § 5728 states in pertinent part:

§ 5728. Travel and transportation expenses; vacation leave

(a) Under such regulations as the President may prescribe, an agency shall pay from its appropriations the expenses of round-trip travel of an employee, and the transportation of his immediate family, but not household goods, from his post of duty outside the continental United States, Alaska, and Hawaii to the place of his actual residence at the time of appointment or transfer to the post of duty, after he has satisfactorily completed an agreed period of service outside the continental United States, Alaska, and Hawaii and is returning to his actual place of residence to take leave before serving another tour of duty at the same or another post of duty outside the continental United States, Alaska, and Hawaii under a new written agreement made before departing from the post of duty.

FTRs § 302-1.13 Overseas tour renewal agreement travel.

Employees may be eligible to receive allowances for travel and transportation expenses for the purpose of returning home to take leave between tours of duty overseas as provided in this section. These provisions are applicable to employees serving tours of duty at posts of duty outside the United States. . . .

(a) Eligibility. Employees may be eligible to receive allowances for travel and transportation expenses for returning home between tours of duty overseas under the criteria set forth in paragraphs (a)(1) through (3) of this section.

(1) Eligibility requirements for all areas outside the continental United States. In order to be eligible for allowances under this section, an employee before departure from his/her post of duty outside the continental United States must have:

(i) Satisfactorily completed an agreed period of service or the prescribed tour of duty as provided in § 302-1.5(b) for return travel entitlement;

(ii) Entered into a new written agreement as provided in § 302-1.5(b) for another period of service at the same or another post of duty outside the continental United States. . . .

FTRs § 302-1.5(b) Transfers, appointments, and separations involving posts of duty outside the continental United States.

(1) In connection with the transfer or appointment of employees to posts of duty outside the continental United States, or between posts . . . the expenses of travel, transportation, moving and/or storage of household goods, and other applicable allowances as provided in this chapter shall not be allowed unless and until the employee selected for such transfer or appointment agrees in writing to remain in the service of the Government for 12 months following the effective date of the transfer or appointment (or for 1 school year for Department of Defense overseas dependents school system teachers as determined under chapter 25 of title 20 of the United States Code, unless separated for reasons beyond his/her control and acceptable to the agency concerned.

JTRs, C4003, as revised, provides, in relevant part:

f. Credit for Prior Service. The following personnel will be required to service the employing [DOD] component for a period of 1 year (1 school year for persons in teaching positions under the [DOD] Overseas Dependent School System) from date of employment under their own transportation agreement or a period of time, which when added to their immediate civilian or military service before signing the agreement, totals the prescribed tour of duty for the area, whichever is greater.

Award at 14 (revisions emphasized).

Prior to the Jan. 1, 1992, revision, JTRs, C4003 stated, in relevant part:

f. Credit for Prior Service. The following personnel will be required to service the employing military department for a period of 1 year from date of employment or a period of time which, when added to their immediate prior period of civilian or military service, totals the prescribed tour of duty for the area, whichever is greater.

Id. at 13-14.




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

1. "Local hires" are employees who are hired at an overseas station. They are usually dependents of U.S. military or civilian personnel who have accompanied their spouses overseas. As relevant here, local hires are not entitled to their own transportation agreements except as provided in the Joint Travel Regulations (JTRs), C4002-3. Rather, they are entitled to accompany their spouses on RAT based on their status as dependents.

2. Both grievants also requested transportation agreements and it is unclear from the record whether either or both of those requests were granted. However, it is not necessary for us to make a determination on this matter because it would be relevant only to deciding whether the award is consistent with the JTRs and, as discussed infra, the Agency makes no claim that the award is inconsistent with the JTRs. For the same reason, we need not determine whether the Arbitrator erred in finding that the grievants did not need their own transportation agreements under the JTRs.

3. Relevant portions of applicable statutory and regulatory provisions are set forth in the Appendix to this decision. For all times pertinent to this case, the JTRs have required an employee to possess a transportation agreement to be eligible for RAT. JTRs, C4003, par. 1. Before January 1, 1992, the version of JTRs, C4003 then in existence (the former JTRs) did not define when employees could begin to accumulate creditable service for purposes of qualifying for RAT. On January 1, 1992, JTRs, C4003 was revised (revised JTRs), and specified that in computing the period of service needed to qualify for RAT, teachers could begin to accumulate creditable service for purposes of RAT only after they signed their own transportation agreements. However, the revised JTRs also provided that an employee's civilian or military service immediately prior to signing the agreement could be credited toward the prescribed tour of duty.

4. Before the Arbitrator, the Union contended that the revised JTRs did not apply to this case because Article 48 of the parties' agreement states that the JTRs provisions in effect on the date of the agreement (Sept. 18, 1989) shall govern the relations between the parties. The record does not reflect that the Agency responded directly to this contention.

5. It is undisputed that the prescribed tour of duty for these teachers is 1 school year.

6. As the Arbitrator found that both requirements were met, his misstatement that the grievants' agreement to return to their posts following the 1992 summer recess "'should have been sufficient alone to grant them [RAT]'" (Exceptions at 9 (quoting Award at 18)) provides no basis for finding the award deficient.

7. Both the former and the revised JTRs contain provisions pertaining to the relationship between entitlement to RAT and transportation agreements. Under the former