54:0818(82)AR - - Federal Education Association and DOD, Dependents Schools - - 1998 FLRAdec AR - - v54 p818



[ v54 p818 ]
54:0818(82)AR
The decision of the Authority follows:


54 FLRA No. 82

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

FEDERAL EDUCATION ASSOCIATION

(Union)

and

U.S. DEPARTMENT OF DEFENSE

DEPENDENTS SCHOOLS

(Agency)

0-AR-3021

_____

DECISION

August 31, 1998

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator James T. Youngblood 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 Regulations. The Agency filed an opposition to the Union's exceptions.

The Arbitrator denied a grievance over the Agency's refusal to change bargaining unit employees' home of record (HOR).(1) The HOR for the employees, who are overseas teachers, determines certain travel and transportation benefits. In this case, the grievants sought renewal agreement travel (RAT). RAT provides employees an allowance for travel expenses for the purpose of returning home to take leave between tours of duty overseas. See Federal Travel Regulation (FTR) § 302-1.13.

For the reasons that follow, we conclude that the Union has not established that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.

II. Background and Arbitrator's Award

A. Background

Travel and transportation eligibility for most overseas teachers is governed by 5 U.S.C. §§ 5722, 5724, and 5728. The FTRs provide regulatory requirements for the implementation of the statutory provisions. The Joint Travel Regulations (JTR), promulgated by the Department of Defense, further expand upon the FTRs.

Teachers hired from the continental United States (CONUS) are entitled to travel benefits which include round-trip transportation between their HOR and the overseas post of duty.(2) Following the completion of the initial tour of duty, and if the employee elects to perform another tour, the employee is entitled to RAT.

Locally-hired teachers (local hires), that is, teachers who are hired overseas, with certain exceptions not pertinent here, are generally not entitled to the above-described travel benefits unless or until they are transferred or reassigned from the overseas point of hire to another post of duty outside the United States.(3) Upon transfer or reassignment to another overseas duty station, a local hire negotiates a transportation agreement which provides travel benefits to the new overseas post and, upon completion of the tour of duty, a RAT to the employee's HOR.

When a teacher is hired he or she designates the HOR at the time of appointment. The HOR is the place he or she is actually residing at the time of appointment, i.e., where dependents and household goods are maintained. The desire of an employee to specify a location as an HOR merely because of an intention to establish residence some place in the CONUS is not a basis for designating that place as the employee's HOR. See JTR § C4004.B.2, Award at 12.(4) When the HOR is determined, it cannot be changed later, unless the initial designation was in error.

The factors considered in determining HOR include home ownership, previous residence, temporary employment in city from which recruited, employment requiring residence apart from family, voting residence, and place the employee pays taxes. Additional factors for consideration, in the case of a local hire, are the length of absence from the claimed place of residence and the reasons for such absence; whether a residence has in fact been maintained to which the person expects to return; and whether the person has in fact actually established residence locally overseas. See id.

On November 16, 1995, the Union filed a grievance on behalf of all unit employees, alleging a violation of the parties' agreement.(5) By stipulation of the parties, the grievance incorporated the separate grievances of three employees, whose particular cases were discussed by the Arbitrator.

B. Arbitrator's Award

The parties could not agree on an issue to submit to the Arbitrator. The Arbitrator framed the issue as:

[W]hat was [the grievants'] actual place of residence at the time of appointment or transfer. And a subsidiary issue is which point of time do you use, time of appointment or time of transfer, to make this determination.

Award at 13.

The Arbitrator first addressed the question of which point in time--time of appointment or time of transfer--governs determination of HOR. The Arbitrator determined that the HOR should be established at the time of selection or appointment, consistent with FTR § 302-1.12(c)(1). The Arbitrator determined that, with the exception of one arbitration decision, the FTR and the JTR have been consistently interpreted to require that the HOR be determined at the time of appointment.(6)

The Arbitrator noted that while the Union raised the time of designation issue, its fundamental argument was whether the Agency can automatically use the point of hire as the HOR or whether the Agency must decide this issue on the factors enumerated in the JTR. The Arbitrator found that the HOR means the place where the employee is living at the time of appointment or selection, the location of the employee's dwelling or abode, and can exist simultaneously with a residence where the employee votes, pays taxes and holds a drivers license. The Arbitrator also stated:

As harsh as it may seem it is my firm conviction that Congress never intended for citizens hired overseas to have the same benefits of CONUS hires except for those benefits which attached when transferred. This is most certainly the message contained in the Acker decisions. I see no reason to come to any different conclusion in this case.

Award at 21.(7)

The Arbitrator considered the facts of the three individual grievants in the case.

Employee R

Employee R was appointed as an Agency teacher in September 1974 in Japan, at which time he had been living there for approximately 4 months. He had previously worked in Japan from 1966 to 1970, but returned to the CONUS to study. Later he returned to Japan for further study. When hired, Employee R wanted to list Omro, Wisconsin as his HOR. The Agency refused to recognize the Wisconsin HOR designation. The Agency determined that because he and his family had been living in Japan with their household goods, he was a local hire.(8) In 1986, Employee R attempted to have his HOR changed to Florida, but the Agency refused to make the change. The Arbitrator found that, in 1974, Employee R had a Wisconsin drivers license, paid taxes and voted there. He found that there was no further evidence of Wisconsin residency. Instead, the Arbitrator found that in 1974, Employee R was physically residing in Japan with his family and household possessions. The Arbitrator concluded that Japan was Employee R's HOR at the time of his appointment.

Employee C

Employee C was hired in Guam, in 1977, for a teaching position in Germany. His application listed Guam as his HOR, and Missouri was listed as his voting residence. Employee C did not question the HOR designation until 1993. The Arbitrator found that Employee C was living in Guam at his time of hire, and that Guam was the employee's HOR.

Employee B

Employee B was hired by the Agency in 1977. He was living in Okinawa with his parents at the time and had been living there for approximately 1 year. Employee B was raised in Okinawa, and had attended high school in that area while living there with his parents. He had attended college in Hawaii, where he had worked, voted, and obtained an Hawaiian drivers license. In 1995, Employee B requested that his HOR be changed to Hawaii. The Arbitrator found that the fact that Employee B had gone to Hawaii for summer vacations and had voted there does not mean that his HOR at the time of appointment was other than Okinawa, where he had been residing with his family. The Arbitrator found that Employee B's HOR at the time of appointment was Okinawa.

The Arbitrator concluded that the Agency did not violate the parties' agreement, statutes, regulations, or arbitration awards, when it refused to change bargaining unit employees' HOR. The Arbitrator, therefore, denied the grievances.

III. Positions of the Parties

A. Union's Exceptions

First, the Union argues that the Arbitrator created a "virtually irrefutable" presumption that the location where an employee resides at the time of hire is equivalent to his or her HOR. Exceptions at 5. The Union contends that the Arbitrator failed to meaningfully consider the individual circumstances of each grievant, even though there existed reasonable indicia that each grievant's HOR was not the same as the place where they physically resided at the time of hire. The Union asserts that when the Arbitrator referred to the "totality of an employee's circumstances" specified in the FTR and JTR, the Arbitrator erroneously treated that analysis as distinct from the determination of the employee's HOR.(9) Id. at 6. The Union also asserts that the Arbitrator used a "legal residence" factor in the totality-of-the-circumstances analysis, although that factor is not contained in either the FTR or the JTR.

Second, the Union contends that the award is inconsistent with the Authority's decision in DODDS, Pacific Region. The Union asserts that that decision establishes that an employee's HOR is not automatically equivalent to the point of hire. The Union also asserts that, contrary to DODDS, Pacific Region, the Arbitrator failed to consider the totality of the circumstances once an employee established that there was some indication that his or her HOR was not the point of hire. Further, the Union argues that in DODDS, Pacific Region the Authority sustained the arbitrator's holding that the HOR for a local hire is to be determined at the time of transfer, not at the time of hire.

Third, the Union claims that the Arbitrator erroneously determined the time to establish an HOR as the time of hire, rather than the time of transfer, as required under FTR § 302-1.12(c). The Union contends that the Arbitrator improperly relied on JTR § C4004.B.4, which concerns the correction of an employee's erroneous HOR, to establish a "timeliness requirement" for an employee to make such a correction. According to the Union, the Arbitrator relied on this regulation rather than performing a thorough analysis of each grievant's circumstances concerning HOR determination, particularly as to Employee C. The Union asserts that Employee C's failure to promptly request the HOR correction improperly influenced the Arbitrator's decision.

Fourth, the Union claims that the Arbitrator's conclusion that Employee C's application listed Guam as his HOR is based on a nonfact. According to the Union, Employee C's application lists Missouri as his permanent address. The Union asserts that Employee C merely chose Guam as his "point of processing." Exceptions at 22.

Fifth, the Union claims that an "erroneous theme transcends" the Arbitrator's decision. Id. Specifically, the Union argues that the Arbitrator misunderstood the issue and believed that the correction of the HOR automatically created an entitlement to a transportation benefit, and that the Arbitrator's decision appears to be based on a desire to deny the grievants those transportation benefits. The Union maintains that Employee C was a CONUS hire and, thus, always entitled to transportation benefits, and that Employees R and B acquired transportation benefits when they were transferred.

B. Agency's Opposition

First, the Agency asserts that the Union is simply disagreeing with the Arbitrator's interpretation of law, rule and regulation, which led him to find that "HOR" means the place where the employee is living at the time of appointment or selection, the location of the employee's dwelling or abode, and can exist simultaneously with a place where the employee votes, pays taxes and holds a drivers license. The Agency contends that the Union is trying to relitigate the merits of the case.

Second, the Agency relies on U.S. Department of Defense Dependent Schools and Overseas Education Association, 37 FLRA 226, 233 (1990), for the principle that an arbitrator's award in one case is without precedential effect on the outcome of another case.

Third, as to the Union's claims that the award is inconsistent with FTR § 302-1.12(c) and JTR § C4004.B.4, the Agency contends that the Union is merely disagreeing with the Arbitrator's findings and conclusion and is attempting to relitigate the merits of the grievance.

Fourth, the Agency asserts that the Arbitrator clearly stated that Employee C's permanent address was listed as Missouri. The Agency contends that the Union is simply disagreeing with the Arbitrator, and disagreement with the Arbitrator does not establish that the award is based on nonfact.

Fifth, as to the Union's claim that the Arbitrator misunderstood the issue, the Agency asserts that the Union is simply disagreeing with the Arbitrator's evaluation of the evidence and is attempting to relitigate the merits of the grievance. The Agency contends that the Union failed to demonstrate that the central fact underlying the award is clearly erroneous but for which a different result would have been reached.

IV. Analysis and Conclusions

A. The Award Is Not Contrary to Law or Regulation

The Authority's role in reviewing arbitration awards depends on the nature of the exceptions raised by the appealing party. See U.S. Customs Service v. FLRA, 43 F.3d 682, 686 (D.C. Cir. 1994). In National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995), the Authority stated that if the arbitrator's decision is challenged, as it is here, on the ground that it is contrary to any law, rule, or regulation, the Authority will review the legal question de novo. In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id. (10)

1. The Award Is Not Contrary to Law and Regulations Regarding the Determination of an Employee's HOR

The Union's first exception alleges an inconsistency with regulations regarding the determination of an employee's HOR. However, this exception is premised on a misstatement of the Arbitrator's award, and disputes the Arbitrator's findings of fact and evaluation of the record evidence. See U.S. Department of Defense, Defense Commissary Agency, Fort Lee, Virginia and National Association of Government Employees, Local R4-45, 53 FLRA 1626, 1630 (1998) (award not contrary to law where exception was based on misinterpretation of the arbitrator's award).

Upon de novo review, we find that, based on the Arbitrator's factual findings regarding the grievants' HOR, the Arbitrator properly determined that each grievant's HOR was not in the CONUS. Specifically, we find that the Arbitrator accurately considered the factors set forth under the applicable regulations, FTR § 302-1.12(c)(3) and JTR § C4004.B.2, such as: where the employee had been living with his family and household goods; where the employee had been working; the employee's voting address; the place where the employee paid taxes; and where the employee had a driver's license. Applying these factors, we find that the Arbitrator correctly determined that Employee R's HOR was Japan; Employee C's HOR was Guam; and Employee C's HOR was Okinawa. Accordingly, the Union's exception does not establish that the award is deficient under section 7122(a) of the Statute.

Our review of the award also demonstrates that the Arbitrator did not apply an irrebuttable presumption that, for overseas hires, the place of hire must be the same as the employee's HOR. Rather, the Arbitrator actually stated "[t]his home of record may be different from the point of hire overseas, and in the appropriate circumstances could be an [HOR] in CONUS." Award at 3. The Arbitrator also stated "unless you are temporarily overseas, away from your actual place of residence at the time of appointment, it is extremely likely that your actual place of residence will be the point of hire." Id. at 23. We see no basis to construe these statements as an irrebuttable presumption that the place of hire must be the same as the employee's HOR for overseas hires.

The other arguments in the Union's first exception dispute the Arbitrator's findings of fact. In this connection, the Union contends that the Arbitrator failed to meaningfully consider the individual circumstances of each grievant. Contrary to the Union's assertion, the Arbitrator did set forth each case with particularity, and addressed multiple applicable factors related to each. See id. at 4-9 and 20-23. Accordingly, the Union's argument provides no basis for finding an award deficient. See, for example, American Federation of Government Employees, Local 940 and U.S. Department of Veterans Affairs, Regional Office and Insurance Center, Philadelphia, Pennsylvania, 52 FLRA 577, 581 (1996) and cases cited therein.

Finally, the Union contends that the Arbitrator erroneously created a dichotomy between "legal residence" where an employee votes, pays taxes, and holds a drivers licence, and determination of their HOR. However, the Arbitrator used the term "legal residence" synonymously with "voting address," which is a permissible factor for determination of HOR. Thus, contrary to the Union's claim, the Arbitrator did not create new factors or exclude factors considered in determining legal residence from a consideration of the appropriate HOR.

Therefore, the Union's exception fails to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exception.

2. The Award Does Not Conflict with Authority Precedent

Without deciding whether a contention that an award conflicts with Authority precedent--apart from the law or regulation being applied in the precedent--can establish that the award is deficient under section 7122 of the Statute, we reject the Union's claim that the Arbitrator's award is contrary to Authority precedent set forth in DODDS, Pacific Region.(11)

The Authority's decision in DODDS, Pacific Region, is distinguishable from this case.(12) The exceptions addressed in that case were to an arbitrator's determination that an Agency employee locally hired in Germany was entitled to various benefits, such as a living quarters allowance (LQA), as a result of a transfer to Okinawa. The Authority's decision did not establish any precedent concerning when or how an HOR should be established under the regulations at issue here. Thus, the award challenged in these exceptions is not inconsistent with DODDS, Pacific Region and the Union's reliance on that case is misplaced.

3. The Award Is Not Inconsistent with FTR § 302-1.12(c) or JTR § C4004.B.4

The Union makes two arguments based on the regulations related to the time at which an employee's HOR is to be determined. We address those arguments together below.

The Union's claim that the Arbitrator erroneously determined the time to establish an HOR as the time of hire, and not the time of transfer, is without merit. FTR § 302-1.12(c) provides, in pertinent part, that "[a]n employee hired locally at a location outside the continental United States who claims residence at another location in the United States . . . at time of appointment, shall designate in writing the claimed place of actual residence for the consideration of agency officials[.]" The Arbitrator held that under the plain wording of FTR § 302-1.12(c), a local hire should have his or her HOR determined at the time of hire, and not the time of transfer. See 5 U.S.C. § 5722(a)(1). According to the Arbitrator, the HOR should be designated at the time of transfer only where the local hire is transient at the place of hire, such as a teacher hired overseas while as a tourist. See n.3 above.

Upon de novo review, we find that under FTR § 302-1.12(c), the HOR of an employee hired locally should be determined "at the time of appointment," rather than at the time of transfer. FTR § 302-1.12(c) has two components, the second of which applies to this case. Specifically, the applicable portion of the regulation states that when an employee is "hired locally at a location outside the continental United States who claims residence at another location in the United States . . . at time of appointment, [that employee] shall designate in writing the claimed place of actual residence for the consideration of agency officials[.]" FTR § 302-1.12(c). The three grievants were living outside CONUS at their time of appointment and were considered to be local hires. See n.8 above. Therefore, according to FTR § 302-1.12(c), the employees, as local hires, had to designate their "claimed place of actual residence" or HOR for consideration by the Agency, at the time of appointment.

We also note that provisions of the JTR, which implement the FTR, are consistent with the FTR in this regard. In particular, JTR § C4004.B.2 states that an employee's HOR "is the fixed or permanent residence, normally, where dependents and HHG [household goods] are maintained at the time of an employee's appointment to an overseas position." (Emphasis added.) The regulation also states that HOR "will be determined at the time an employee is initially appointed or transferred to a post of duty outside CONUS." Id. Accordingly, for employees hired locally, both the FTR and the JTR provide for the determination of the employee's HOR at the time of appointment to an overseas position.

In this case, when the employees were initially offered positions with the Agency as local hires, they made their claims of residence as locations in the United States, but the Agency determined that the HOR for each of the employees was not in the United States. The appropriate time to determine the employees' HOR was at the time of appointment, and that is the time used by the Agency and found to be appropriate by the Arbitrator. In this regard, the Arbitrator properly interpreted and applied this pertinent regulation. Therefore, the award is not inconsistent with FTR § 302-1.12(c).

The Union also contends that the Arbitrator established a "timeliness requirement" for correcting an erroneous HOR that is not contained in JTR § C4004.B.4. Contrary to the Union's argument concerning the correction of an employee's erroneous HOR, an examination of the Arbitrator's award shows that the Arbitrator did not establish a "timeliness requirement" concerning an employee's effort to change an HOR. Rather, as relevant here, the Arbitrator considered Employee C's effort to change his HOR only as one piece of evidence establishing that the initial designation of Guam as his HOR was correct.

More specifically, the Arbitrator found that Employee C listed Guam as his HOR on his application, and that Guam was listed as the employee's HOR on the travel and transportation agreements. Award at 22. He also found that Employee C had returned to Guam on RAT. Id. Therefore, the Arbitrator concluded that Guam was Employee C's HOR. The Arbitrator also noted that Employee C did not question the designation of Guam as his HOR for 16 years, until it became important. Id. The Arbitrator found no proof that Employee C's HOR was in error. In making this determination, the Arbitrator imposed no specified time limit for requesting a correction of the HOR designation. Upon de novo review, based on the Arbitrator's findings of fact, we determine that Employee C's HOR was Guam. In this regard, we note that Employee C's SF-171 reveals that he had been teaching school in Guam for 3 years prior to his employment with the Agency. See Exceptions, Attachment H. Accordingly, we find that the award is not inconsistent with JTR § C4004.B.4.

B. The Award Is Not Based on a Nonfact

To establish that an award is based on a nonfact, the excepting party must demonstrate that a 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). A party may not raise nonfact allegations concerning a factual matter that was disputed below. U.S. Department of the Interior, Bureau of Mines, Pittsburgh Research Center and American Federation of Government Employees, Local 1916, 53 FLRA 34, 40 (1997) (Bureau of Mines).

Employee C's HOR was disputed in the arbitration. The Arbitrator found that Employee C's HOR was Guam because the employee had been living in Guam, and the record reveals that Employee C had been teaching in Guam for 3 years prior to the acceptance of a position with the Agency. See Exceptions, Enclosure H. We will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties had disputed at arbitration. See Bureau of Mines, 53 FLRA at 40.

For the above stated reasons, the Union has failed to establish that the Arbitrator's award is based on a nonfact.

C. The Arbitrator Did Not Exceed His Authority

The Union captions its Exception No. 5 "ARBITRATOR YOUNGBLOOD'S DECISION IS INCONSISTENT WITH FACT, REGULATIONS AND LAW." See Exceptions at 22. However, the Union's exception fails to state any law or regulation with which the award conflicts, or any other ground on which the exception should be granted. An unsupported contention that an award is contrary to law, rule, or regulation provides no basis for finding an award deficient. See U.S. Department of the Air Force, San Antonio Air Logistics Center, Kelly Air Force Base, Texas and American Federation of Government Employees, Local 1617, 51 FLRA 1624, 1628 (1996) and cases cited therein.

With respect to the Union's contention, included in its Exception No. 5, that the Arbitrator did not understand the issue and framed it incorrectly, it is well established that, in the absence of a stipulated issue, an arbitrator's formulation of the issue is accorded substantial deference. See U.S. Department of Defense, Defense Contract Audit Agency, Central Region and American Federation of Government Employees, Local 3529, 51 FLRA 1161, 1164 (1996). In this case, the parties did not stipulate the issue to be resolved and the award is directly responsive to the issue as framed by the Arbitrator. Consequently, the Union has failed to establish that the award is deficient under section 7122(a) of the Statute.

V. Decision

The Union's exceptions are denied.

APPENDIX

5 U.S.C. § 5722(a) Travel and transportation expenses of new appointees; posts of duty outside the continental United States states, in pertinent part:

(a) Under regulations prescribed under section 5738 of this title 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[.]

FTR § 302-1.12(c) Actual place of residence designation states:

(1) Designation by employee. When an employee is selected for transfer or appointment to a post of duty outside the continental United States, the place of actual residence shall be determined at the time of selection and designated in the written agreement . . . . An employee hired locally at a location outside the continental United States who claims residence at another location in the United States, the Commonwealth of Puerto Rico or the Commonwealth of the Northern Marianna Islands, or a United States territory or possession at time of appointment, shall designate in writing the claimed place of actual residence for the consideration of agency officials.

. . . .

(3) Guidance in determination of residence. While it is not feasible to establish rigid standards for what constitutes a place of residence, the concept of residence represented in an existing statutory provision (8 U.S.C. 1101(33)) may be used as general guidance. This concept views residence as the place of general abode, meaning the principal, actual dwelling place in fact, without regard to intent. Determination of the place of actual residence is primarily an administrative responsibility and the place constituting the actual residence must be determined upon the factual circumstances in each case. Examples of factors which shall be considered, whenever applicable, by agency officials charged with this responsibility are:

(i) The place of actual residence of a dependent student generally is presumed to be the same as that of the parents and, except in rare instances, this situation would not be changed by the student attending college in another place.

(ii) The place at which the employee physically resided at [the] time of selection for appointment or transfer frequently constitutes the place of actual residence and shall be so regarded in the absence of circumstances reasonably indicating that another location may be designated as the place of actual residence.

(iii) Designation of a place of actual residence in an official document signed by the employee earlier in Government employment shall be regarded as originally intended to be a continuing designation . . . the location of the place of actual residence incorporated in the official records of such employment shall be changed only to correct an error in the designation of residence.

(iv) Presence in the individual's work history of a representative amount of full-time employment at or in the immediate geographic area of the location designated as place of actual residence is a significant factor, but lack of such history does not preclude the designation of the location as place of actual residence.

(v) The chronological record of individual or family association with a locality is usually significant only in connection with an analysis of other circumstances explaining the nature of such association. Frequent or extended visits to a locality must be evaluated in relation to the purpose of the visits and sometimes in relation to the nature of the area itself. For example, vacation visits to a resort area, without the added support of other factors, should not be regarded as adequate to establish a place of actual residence.

(vi) Recognition and exercise by the employee of the privileges and duties of citizenship in a particular jurisdiction, such as voting and payment of taxes on income and personal property are factors for consideration, but agency application of standards about place of residence should not be such as to discourage employees from property ownership or participation in community affairs at a nonforeign location outside the continental United States.

JTR § C4004 Place of Actual Residence Determination states:

. . . .

B. Overseas Employment

1. General. The obligation of the Government for transportation for purposes of overseas assignment, round-trip travel under a renewal agreement, or return for separation are limited to movement to or from an employee's place of actual residence at the time of his/her assignment to overseas duty. Before an agreement is negotiated, the employment office will make every effort to ascertain and state in the agreement the correct place of actual residence. In the negotiation of a renewal agreement, the same place of actual residence shown in the employee's original agreement will be stated in the renewal agreement unless it is determined an error was made in the employee's place of actual residence when the original agreement was executed. In the event of the latter, the correct place of actual residence will be determined and stated in the renewal agreement. An explanation will be made a matter of record with the renewal agreement.

2. Factors for Consideration. The place of actual residence will be determined at the time an employee is initially appointed or transferred to a post of duty outside CONUS. This is important in the case of an employee who is a local hire because only at the time of appointment is he/she in the overseas area as a tourist or for other reasons which are of a temporary or intermittent nature. Although local hires, these employees may subsequently become eligible for return travel and transportation entitlement or for tour renewal agreement travel. Eligibility for these entitlements would generally be determined by designation of the place of actual residence which should be based on all factual circumstances of each case. The place of actual residence is the fixed or permanent residence, normally, where dependents and HHG [household goods] are maintained at the time of an employee's appointment to an overseas position. Generally, the place of actual residence is the place from which transferred or appointed. This, however, is not always so. The desire of an applicant or employee to specify a location as place of actual residence that is not justified as reasonable, or merely because of an intention to establish residence or visit some place, will not be a basis for designating such place as that of actual residence for transportation eligibility purposes. All available facts concerning the employee's residence before assignment to overseas duty will be carefully considered such as home ownership, previous residence, temporary employment in city from which recruited, employment requiring residence apart from family, the employee's voting residence, and the place the employee pays taxes. Additional factors for consideration, in the case of local hire, are the length of absence from the claimed place of residence and the reasons for such absence; whether a residence has in fact been maintained to which the person expects to return; whether the person has in fact actually established residence locally overseas, participated in local elections, or obtained waiver of United States tax liability based on foreign residence which would negate a claim of place of residence in the United States. . .

. . . .

4. Employee's Claim of Change in Place of Actual Residence. Where place of actual residence has been determined in accordance with subpar. 2, no change is authorized during a continuous period of overseas service and none will be approved except in case of an error. . . In the event of an error, the appropriate agreement will be corrected to show the employee's correct place of actual residence.




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

1. Throughout the record, the parties used the terms "HOR" and "actual place of residence" interchangeably. The latter term is the one used in applicable statutes and regulations. For consistency, we will use the term "HOR."

2. "Continental United States" means the 48 contiguous States and the District of Columbia. FTR § 301-1.3(c)(6).

3. The exceptions are for teachers who are hired overseas while as tourists, or while overseas for other reasons which are of a temporary or intermittent nature. See JTR § C4004.B.2, Award at 12.

4. Additional pertinent statutory and FTR provisions are set forth in the Appendix.

5. The parties did not indicate the specific portion of the agreement allegedly violated. Rather, the grievance appears to concern solely an alleged violation of regulation by the Agency.

6. The one exception involved an arbitration decision regarding living quarters allowance payable to employees who were transferred from one overseas location to another through management-initiated action. The record in that case revealed that the HOR of one grievant had been erroneously recorded. See Department of Defense Dependents Schools, Pacific Region and Overseas Education Association, Pacific Region, 30 FLRA 1206 (1988) (DODDS, Pacific Region). See also Award at 16.

7. The decisions referenced in the quote are Acker v. U.S., 620 F.2d 802 (Ct. Cl. 1980) (court denied claim from teachers hired abroad seeking entitlement to living quarters allowance and post differential); and Acker v. U.S., 6 Cl. Ct. 503 (1984) (court denied teachers' claim for living quarters allowance and travel agreements).

8. Employee R also grieved the denial of a transportation agreement. At arbitration, the Union agreed that the three grievants were living in foreign locations at the time of their initial appointments and were not entitled to transportation agreements from CONUS to a foreign post. Accordingly, the Arbitrator did not consider whether Employee R was entitled to a transportation agreement. See Award at 12-13.

9. We note that the FTR and JTR do not specifically address a "totality" of the circumstances analysis. Rather, the regulations speak of basing an analysis on "all factual circumstances of each case." E.g., JTR C4004.B.2.