53:0249(34)AR - - DOD Dependents Schools and Federal Education Association [ formerly known as the Overseas Education Association ] - - 1997 FLRAdec AR - - v53 p249



[ v53 p249 ]
53:0249(34)AR
The decision of the Authority follows:


53 FLRA No. 34

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF DEFENSE

DEPENDENTS SCHOOLS

(Agency)

and

FEDERAL EDUCATION ASSOCIATION (1)

(Union)

0-AR-2780

_____

DECISION

August 7, 1997

_____

Before the Authority: Phyllis N. Segal, Chair; and Donald S. Wasserman, Member.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Paul J. Fasser, Jr. 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 determined that locally hired teachers who are transferred outside their commuting area but within their geographical locality are entitled to transportation agreements with renewal agreement travel (RAT) and separation travel.(2) For the following reasons, we remand the case to the parties for resubmission to the Arbitrator for a clarification of the basis of the award.

II. Background and Arbitrator's Award

This dispute has had a long procedural history and is now before us for a third time. See U.S. Department of Defense, Dependents Schools and Overseas Education Association, 42 FLRA 1166 (1991); U.S. Department of Defense, Dependents Schools and Overseas Education Association, 49 FLRA 120 (1994). The Arbitrator previously issued an award concerning a Union grievance protesting the Agency's failure to give renewal agreement travel and separation travel to local hires who were transferred outside their commuting area but within the same geographical locality. The Union claimed that during negotiations for a memorandum of understanding (MOU), which had settled an earlier grievance before another arbitrator, the parties had reached an oral agreement in which the Agency promised to provide those benefits when such transfers occurred. As relevant here, although the Arbitrator found in his first award that he did not have enough evidence to conclusively determine if there was an oral agreement modifying the MOU, he credited the testimony of an Agency witness who stated that no such oral agreement had been reached. The Arbitrator ordered the Agency to provide the Union with a list of all locally-hired teachers who had been recently transferred and the transportation benefits they had received.

In the award currently before us, the Arbitrator ruled that he had the authority to determine if the Agency had entered into an oral agreement with the Union regarding transportation benefits for local hires or if there was a past practice whereby some local hires were given the benefits while others were not. Finding that the Agency had not provided the Union with the information he had ordered, the Arbitrator reevaluated the testimony of the Agency's negotiators and concluded that their denials could "no longer be considered a reliable basis on which to make a determination." Award at 6.

Regarding the existence of a past practice, the Arbitrator found there was compelling evidence "that some Local Hires were given full benefits while others were not." Id. The Arbitrator noted that the Agency "had more than sufficient time to produce [the requested information] so that a determination concerning the past practice could be properly made[,]" and concluded from the evidence available that there was a "mixed practice" by which some local hires had been given full travel benefits. Id. As for the existence of an oral agreement, the Arbitrator found from the testimony of one of the Agency's negotiators that it "cannot be concluded that he did not enter into an oral agreement" with the Union. Id. (emphasis in original). The Arbitrator concluded that this finding, "coupled with the Agency's failure to provide the necessary information, compels a finding against the Agency." Id. at 7. Accordingly, he ordered the Agency to provide RAT and separation travel benefits to all local hires who had been transferred out of their commuting areas but within their geographical locality from 1989 to the present.

III. Exceptions

A. Agency's Contentions

In its first exception, the Agency contends that the award conflicts with section C4011 of the Department of Defense Joint Travel Regulations (JTRs).(3) The Agency argues that, under the JTRs, local hires who are transferred within their geographical locality are not eligible for RAT or separation travel.

In its second exception, the Agency contends that the award fails to draw its essence from the agreement. The Agency argues that in his earlier award the Arbitrator had determined that the MOU between the parties did not contain any language that would imply that the Agency agreed to provide RAT and separation travel to transferred locally-hired teachers or that there was an oral agreement to that effect. The Agency also maintains that the Arbitrator ignored the testimony of the Agency's deputy chief of staffing, who testified that, in accordance with the JTRs, locally-hired teachers who were transferred outside the commuting area, but within the same geographical locality, are not eligible for RAT separation travel. Furthermore, the Agency argues that the Arbitrator should not have based his decision on the fact that two or three locally-hired teachers who were given such transfers were erroneously granted renewal agreement travel and separation travel.

B. Union's Opposition

In response to the exception based on the JTRs, the Union argues that, under 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 (1990) (Fort Campbell), the parties' agreement governs, and not the Agency regulation.

Regarding the Agency's contention that the award does not draw its essence from the agreement, the Union argues that the Agency failed to establish any of the factors that would lead the Authority to set aside an award on those grounds. The Union also argues that the Arbitrator, in finding an oral agreement between the parties, was merely exercising the authority that is solely reserved to arbitrators.

IV. Analysis and Conclusions

As the Agency alleges that the Arbitrator's award is contrary to regulation, we review the 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. Custom Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)).

For the reasons explained below, we conclude that the award is inconsistent with the JTRs. An arbitration award that conflicts with an agency regulation is deficient if the agency regulation governs the matter in dispute. An agency regulation governs the matter in dispute when no provisions of a collective bargaining agreement address the matter. Fort Campbell, 37 FLRA at 194. Therefore, if the JTRs govern the matter in dispute, the award is contrary to law.

Under the JTRs, when local hires not working under a transportation agreement are transferred to a new location outside their commuting area but within the same geographical locality they become eligible only for permanent change-of-station allowances. The JTRs expressly state that "[t]here is no other eligibility." Joint Travel Regulations Volume II, Section C4011, par. 5. RAT and separation travel are not included in permanent change-of-station allowances. Department of Defense Joint Travel Regulations Volume I, Section U5012. In contrast, the JTRs expressly state that local hires who are transferred to a different geographical locality are entitled to RAT and separation travel. Joint Travel Regulations Volume II, Section C4011, par. 6. Therefore, by awarding RAT and separation travel benefits, the award is inconsistent with the JTRs.

With regard to whether the JTRs govern this matter, we now turn to the agreements between the parties. The relevant provision of the parties' collective bargaining agreement states only that overseas teachers who are transferred may be entitled to travel and transportation in accordance with applicable regulations. Joint Exhibit 1 (Negotiated Agreement, Article 9, Section 8). Furthermore, although the MOU specifically concerns the benefits for which transferred local hires are entitled, it does not mention transportation benefits. Opposition, Exhibit U-16. However, as discussed below, the Arbitrator may have found an oral agreement to provide such benefits. Therefore, it is critical that we determine whether there was an oral agreement that modified the MOU so as to give RAT and separation travel to locally hired teachers.(4) If there was no such oral agreement, the JTRs govern and the award is deficient.

Having carefully examined the award, we cannot determine whether the Arbitrator found an oral agreement to provide RAT and separation travel to local hires who are transferred within their geographical locality. One reading of the award leads to a conclusion that the Arbitrator found such an oral agreement and based his award on that finding. This conclusion is supported by the Arbitrator's findings that the denials of the Agency's negotiators "can no longer be considered a reliable basis on which to make a determination[,]" award at 6, and that it "cannot be concluded that [an Agency negotiator] did not enter into an oral agreement[,]" id. at 6-7. Significantly, the Arbitrator relied on the latter finding, as well as the Agency's failure to provide the necessary information, to conclude that he was compelled to find against the Agency.

On the other hand, there is also support for concluding that the Arbitrator based the award on his finding that the Agency had engaged in a "mixed practice" of giving some locally transferred teachers transportation benefits while denying such benefits to others. Award at 6. In making this finding, the Arbitrator stated that because the Agency refused to provide the requested list of benefits provided to transferred local hires, he was unable to make a proper determination concerning whether a past practice of providing such benefits existed. We note that the Arbitrator made the statement concerning the "mixed practice" and "ordered" the Agency to provide transportation benefits to transferred local hires before he discussed the issue of whether there was an oral agreement to do so. Id. Moreover, the Arbitrator's statement that he was unable to conclude that the Agency had not entered into an oral agreement does not necessarily indicate that he found that such an agreement had, in fact, been reached.

Because the award is unclear, we are unable to determine if the Arbitrator based the award on a finding of an oral agreement or on his finding that the Agency had a mixed practice of providing transportation benefits to some locally transferred teachers. Although we are extremely reluctant to prolong resolution of this dispute, we are compelled by this ambiguity in the award to remand the case to the parties for resubmission to the Arbitrator, absent settlement, for a clarification of the basis of the award. See National Federation of Federal Employees, Local 1442 and U.S. Department of the Army, Letterkenny Army Depot, Chambersburg, Pennsylvania, 46 FLRA 1631 (1993) (case remanded for clarification of ambiguous award).

If, on remand, the Arbitrator states that the award is based on an oral agreement that modified the parties' MOU, that award would draw its essence from the MOU, as modified. The Agency has not demonstrated that such an interpretation of the MOU, as modified, is implausible, irrational, or unconnected to the wording of such an agreement. Therefore, the award would not be deficient on this basis. See U.S. Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-76 (1990). If, on the other hand, the Arbitrator clarifies that the award is not based on an oral agreement, the JTRs would govern and the award would be deficient as contrary to regulation.

V. Decision

This case is remanded to the parties for resubmission to the Arbitrator, absent settlement, for a clarification of the basis of the award.




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

1. During the pendency of this case, the Overseas Education Association was renamed the Federal Education Association. The case caption has been modified to reflect that change.

2. "Locally hired teachers" are teachers hired at an overseas location, as opposed to those who are hired in the United States and then transferred to overseas locations. Exceptions, Attachment A, 1990 Award at 3.

"Commuting area" is an area within a 10 mile radius from the employee's home. Opposition, Attachment A, 1990 Award at 6.

"Geographical locality" is the contiguous political area of a single country or a related island group in the same region. Opposition, Attachment A, 1990 Award at 7.

In a "transportation agreement" (agreement) the agency agrees to furnish transportation and other related benefits, in consideration for which the employee agrees to remain in Government service for a specified period. An employee's entitlement to these various benefits depends upon such factors as where the employee was hired and where that employee is being transferred. For example, locally hired teachers who have never transferred do not work under a travel agreement. Exceptions at 4. An agreement may provide for "renewal agreement travel," which enables teachers to return, at Government expense, to their established places of residence during the period that school is not in session at their assigned overseas location. Id., Attachment A, 1990 Award at 3. The agreement may also provide for "separation travel," which enables teachers to return to their actual residences when their employment ceases. Department of Defense Joint Travel Regulations Volume II, Section C4200.

3. The JTRs state that a lo