Department of Defense, Dependents School (Activity) and Overseas Education Association, Inc. (Union)

 3 FLRA No. 40
 
 DEPARTMENT OF DEFENSE,
 DEPENDENTS SCHOOL
 Activity
 
 and
 
 OVERSEAS EDUCATION
 ASSOCIATION, INC.
 Union
 
                                            Case No. 0-AR-28
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON A PETITION FOR REVIEW OF THE
 AWARD OF ARBITRATOR HOWARD KLEEB FILED BY THE UNION UNDER SECTION
 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5
 U.S.C. 7122(A)).
 
    ACCORDING TO THE ENTIRE RECORD BEFORE THE AUTHORITY, THE DISPUTE IN
 THIS CASE AROSE WHEN THE AGENCY INCREASED THE NUMBER OF ACTUAL WORK DAYS
 IN A SCHOOL YEAR FOR OVERSEAS TEACHERS FROM 187 TO 190 STARTING WITH THE
 1976-77 SCHOOL YEAR.  THEREAFTER, THE GRIEVANT FILED A GRIEVANCE SEEKING
 TO "BE FINANCIALLY COMPENSATED FOR THESE THREE EXTRA WORK DAYS." THE
 GRIEVANCE COULD NOT BE RESOLVED AND WAS, THEREFORE, SUBMITTED TO
 ARBITRATION.
 
    NOTING THAT THE PARTIES WERE UNABLE TO AGREE ON THE ISSUE, THE
 ARBITRATOR FOUND THE "REAL ISSUE" TO BE "(W)HEHTER MANAGEMENT HAS PAID
 THE GRIEVANT PROPERLY UNDER PUBLIC LAW 86-91." /1/ ON THIS ISSUE, THE
 ARBITRATOR RENDERED AN INITIAL AWARD ON MARCH 29, 1979.  THEREIN, THE
 ARBITRATOR, IN GRANTING THE GRIEVANCE, HELD THAT THE DEPARTMENT OF
 DEFENSE OFFICE OF DEPENDENTS SCHOOLS (DODDS) HAD NOT BEEN PAYING THE
 GRIEVANT THE PROPER DAILY RATE AND, APPLYING THE DAILY RATE AS HE
 COMPUTED IT TO A 190 DAY SCHOOL YEAR, THE ARBITRATOR DIRECTED DODDS TO
 PAY THE GRIEVANT THE DIFFERENCE BETWEEN THE NEWLY COMPUTED SALARY AND
 THE SALARY THE GRIEVANT WAS ORIGINALLY PAID.  HOWEVER, IN ARRIVING AT
 THIS AWARD, THE ARBITRATOR STATED:
 
    BECAUSE I HAVE CONCLUDED THAT THE GRIEVANCE IS A CONTINUING GRIEVANCE
 AND BECAUSE I AM
 
    GRANTING THE GRIEVANCE I RECOGNIZE THAT THE PRACTICAL EFFECT OF MY
 DECISION WILL UNDOUBTEDLY
 
    OPEN THE DOOR FOR THE ASSOCIATION TO FILE ADDITIONAL GRIEVANCES OR
 PERHAPS A CLASS GRIEVANCE
 
    WHICH WILL INVOLVE ALL OF THE TEACHERS COVERED BY THE AGREEMENT.
 THEREFORE, I WILL RETAIN
 
    JURISDICTION OF THE GRIEVANCE IN ORDER TO GIVE EITHER PARTY A FURTHER
 OPPORTUNITY TO ARGUE
 
    THEIR POSITIONS AFTER HAVING REVIEWED MY DISCUSSION AND CONCLUSIONS,
 BECAUSE OF THE POTENTIAL
 
    MAGNITUDE OF THE AWARD IF IT IS SUSTAINED.
 
    THEREFORE, THE ARBITRATOR RETAINED JURISDICTION UNTIL MAY 1, 1979, TO
 RESOLVE ANY DISPUTES OR TO IMPLEMENT THE AWARD, AND TO HEAR ANY MOTIONS
 INVOLVING THE AWARD.  FINALLY, THE ARBITRATOR DENIED THE UNION'S REQUEST
 FOR ATTORNEY FEES, SUBJECT TO FURTHER CONSIDERATION.
 
    THEREAFTER, IN RESPONSE TO MOTIONS FILED BY THE PARTIES, THE
 ARBITRATOR ISSUED A "SUPPLEMENTAL OPINION AND AWARD" ON MAY 29, 1979.
 IN THAT AWARD HE HELD IN PART:
 
    1.  DOD'S MOTION TO RECONVENE THE HEARING IS GRANTED.
 
   .          .          .          .
 
 
    4.  OEA'S MOTION FOR THE PAYMENT OF ATTORNEY'S FEES IS DENIED.  AS I
 READ THE AUTHORITIES
 
    CITED BY OEA IN ITS MOTION I DO NOT FIND THEM APPLICABLE TO AN
 ARBITRATION PROCEEDING UNDER
 
    THE NEGOTIATED AGREEMENT OF THE PARTIES.  ARTICLE 13, GRIEVANCE
 PROCEDURE, MAKES NO REFERENCE
 
    TO THE PAYMENT OF LEGAL FEES BY EITHER PARTY.  SECTION 10,
 ARBITRATION, PARAGRAPH J LIMITS THE
 
    COST OF ARBITRATION TO THE ARBITRATOR'S FEE, TRAVEL, PER DIEM, AND
 COST OF THE TRANSCRIPT OF
 
    THE HEARING.  THE COST IS TO BE BORNE EQUALLY BY THE PARTIES.
 THEREFORE I FIND NO AUTHORITY
 
    FOR THE ASSESSMENT OF LEGAL FEES AGAINST DODDS.
 
    FOLLOWING THAT SUPPLEMENTAL OPINION AND AWARD AND PRIOR TO THE
 RECONVENED HEARING ORDERED BY THE ARBITRATOR, THE UNION FILED THE
 PETITION FOR REVIEW INVOLVED HEREIN, TAKING EXCEPTION TO THE
 ARBITRATOR'S DENIAL OF THE UNION'S REQUEST FOR ATTORNEY FEES.  THE
 AGENCY FILED AN OPPOSITION.
 
    AS A RESULT OF THE RECONVENED HEARING, THE ARBITRATOR ISSUED A
 "SECOND SUPPLEMENTAL OPINION AND AWARD" ON SEPTEMBER 7, 1979.  THEREIN
 THE ARBITRATOR STATED THAT "(U)PON RECONSIDERATION (HE WAS) OF THE
 OPINION THAT MANAGEMENT DID PROPERLY PAY THE GRIEVANT FOR THE YEARS
 1976-77 AND 1977-78 WITHIN THE FRAMEWORK OF THE NEGOTIATED AGREEMENT
 THAT WAS SIGNED ON MARCH 4, 1977 TO REMAIN IN EFFECT UNTIL MARCH 4,
 1980." THEREFORE, HE DENIED THE GRIEVANCE.  /2/
 
    THE UNION'S PETITION FOR REVIEW IN THIS CASE, TAKING EXCEPTION TO THE
 ARBITRATOR'S DENIAL OF THE UNION'S REQUEST FOR ATTORNEY FEES, WAS FILED
 PURSUANT TO THE RULES OF PROCEDURE SET FORTH IN 5 C.F.R.PART 7122(A) OF
 THE STATUTE AND AS AMENDED BY SECTION 2400.5 OF THE TRANSITION RULES AND
 REGULATIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY, 44 F.R. 44741,
 REMAIN OPERATIVE WITH RESPECT TO THIS CASE.  THE UNION SEEKS AUTHORITY
 ACCEPTANCE OF ITS PETITION ON THE BASIS OF THE EXCEPTION DISCUSSED
 BELOW.
 
    PURSUANT TO SECTION 2411.32 OF THE AMENDED RULES AND SECTION 7122(A)
 OF THE STATUTE, THE AUTHORITY WILL GRANT A PETITION FOR REVIEW OF AN
 ARBITRATOR'S AWARD WHERE IT APPEARS, BASED UPON THE FACTS AND
 CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE AWARD IS DEFICIENT
 BECAUSE IT IS CONTRARY TO LAW, RULE, OR REGULATION, OR ON OTHER GROUNDS
 SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN PRIVATE SECTOR
 LABOR-MANAGEMENT RELATIONS CASES.
 
    IN ITS EXCEPTION THE UNION CONTENDS THAT THE ARBITRATOR'S DENIAL OF
 THE UNION'S REQUEST FOR ATTORNEY FEES VIOLATES THE BACK PAY ACT OF 1966,
 5 U.S.C. 5596, AS AMENDED BY SECTION 702 OF THE CIVIL SERVICE REFORM ACT
 OF 1978.  /3/ IN SUPPORT OF ITS EXCEPTION, THE UNION STATES THAT AS A
 RESULT OF THE AMENDMENTS MADE TO THE BACK PAY ACT "(THE GRIEVANT) IS
 ENTITLED TO AN AWARD OF REASONABLE ATTORNEY FEES . . . "
 
    THE AUTHORITY WILL GRANT A PETITION FOR REVIEW OF AN ARBITRATION
 AWARD WHERE IT APPEARS, BASED ON THE FACTS AND CIRCUMSTANCES DESCRIBED
 IN THE PETITION, THAT THE AWARD VIOLATES LAW.  HOWEVER, IN THIS CASE THE
 UNION HAS NOT PRESENTED SUFFICIENT FACTS AND CIRCUMSTANCES TO SUPPORT
 ITS EXCEPTION.
 
    THE BACK PAY ACT OF 1966, AS AMENDED, PROVIDES THAT AN EMPLOYEE WHO
 IS FOUND TO HAVE BEEN AFFECTED BY AN UNJUSTIFIED OR UNWARRANTED
 PERSONNEL ACTION WHICH HAS RESULTED IN THE WITHDRAWAL OR REDUCTION OF
 THE EMPLOYEE'S PAY, IS ENTITLED, ON CORRECTION OF THE ACTION, TO
 REASONABLE ATTORNEY FEES RELATED TO THE ACTION AND AWARDED IN ACCORDANCE
 WITH PRESCRIBED STANDARDS.  IN THIS CASE, HOWEVER, IT IS NOTED THAT THE
 ARBITRATOR'S FINAL DISPOSITION OF THE MATTER BEFORE HIM WAS TO DENY THE
 GRIEVANCE, FINDING THAT THE AGENCY HAD PROPERLY PAID THE GRIEVANT.
 THUS, THERE HAS BEEN NO DETERMINATION IN THIS CASE THAT AN UNJUSTIFIED
 OR UNWARRANTED PERSONNEL ACTION HAS RESULTED IN THE WITHDRAWAL OR
 REDUCTION OF THE GRIEVANT'S PAY, A NECESSARY THRESHOLD DETERMINATION FOR
 ENTITLEMENT TO ATTORNEY FEES UNDER THE BACK PAY ACT, AS AMENDED.
 THEREFORE, THE UNION'S EXCEPTION PROVIDES NO BASIS FOR ACCEPTANCE OF ITS
 PETITION UNDER SECTION 2411.32 OF THE AMENDED RULES.
 
    ACCORDINGLY, THE UNION'S PETITION FOR REVIEW OF THE ARBITRATOR'S
 AWARD IS DENIED BECAUSE IT FAILS TO MEET THE REQUIREMENTS OF SECTION
 2411.32 OF THE AMENDED RULES FOR ACCEPTANCE BY THE AUTHORITY OF A
 PETITION FOR REVIEW OF AN ARBITRATOR'S AWARD.
 
    ISSUED, WASHINGTON, D.C., MAY 23, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS DECISION
 
    /1/ DEFENSE DEPARTMENT OVERSEAS TEACHERS PAY AND PERSONNEL PRACTICES
 ACT, PUB. L. NO. 86-91, 73 STAT. 213(1959).
 
    /2/ THE UNION'S EXCEPTIONS TO THE ARBITRATOR'S ULTIMATE DENIAL OF THE
 GRIEVANCE HAVE BEEN DISMISSED THIS DATE AS UNTIMELY FILED.  DEPARTMENT
 OF DEFENSE, DEPENDENTS SCHOOLS AND OVERSEAS EDUCATION ASSOCIATION, INC.,
 CASE NO. O-AR-51, 3 FLRA NO. 39.
 
    /3/ THE CIVIL SERVICE REFORM ACT OF 1978, PUB. L. NO. 95-454, SEC.
 702, 92 STAT. 1216, PROVIDES, IN RELEVANT PART:
 
         BACKPAY IN CASE OF UNFAIR LABOR PRACTICES AND GRIEVANCES
 
    SEC. 702.  SECTION 5596(B) OF TITLE 5, UNITED STATES CODE IS AMENDED
 TO READ AS FOLLOWS:
 
    (B)(1) AN EMPLOYEE OF AN AGENCY WHO, ON THE BASIS OF A TIMELY APPEAL
 OR AN ADMINISTRATIVE
 
    DETERMINATION (INCLUDING A DECISION RELATING TO AN UNFAIR LABOR
 PRACTICE OR A GRIEVANCE) IS
 
    FOUND BY APPROPRIATE AUTHORITY UNDER APPLICABLE LAW, RULE,
 REGULATION, OR COLLECTIVE
 
    BARGAINING AGREEMENT, TO HAVE BEEN AFFECTED BY AN UNJUSTIFIED OR
 UNWARRANTED PERSONNEL ACTION
 
    WHICH HAS RESULTED IN THE WITHDRAWAL OR REDUCTION OF ALL OR PART OF
 THE PAY, ALLOWANCES, OR
 
    DIFFERENTIALS OF THE EMPLOYEE--
 
    (A) IS ENTITLED, ON CORRECTION OF THE PERSONNEL ACTION, TO RECEIVE
 FOR THE PERIOD FOR WHICH
 
    THE PERSONNEL ACTION WAS IN EFFECT--
 
   .          .          .          .
 
 
    (II) REASONABLE ATTORNEY FEES RELATED TO THE PERSONNEL ACTION WHICH,
 WITH RESPECT TO ANY
 
    DECISION RELATING TO AN UNFAIR LABOR PRACTICE OR A GRIEVANCE
 PROCESSED UNDER A PROCEDURE
 
    NEGOTIATED IN ACCORDANCE WITH CHAPTER 71 OF THIS TITLE, SHALL BE
 AWARDED IN ACCORDANCE WITH
 
    STANDARDS ESTABLISHED UNDER SECTION 7701(G) OF THIS TITLE(.)
 
    5 U.S.C. 7701, RELATING TO APPELLATE PROCEDURES BEFORE THE MERIT
 SYSTEMS PROTECTION BOARD, PROVIDES IN RELEVANT PART:
 
    SEC. 7701.  APPELLATE PROCEDURES
 
   .          .          .          .
 
 
    (G)(1) EXCEPT AS PROVIDED IN PARAGRAPH (2) OF THIS SUBSECTION, THE
 BOARD, OR AN
 
    ADMINISTRATIVE LAW JUDGE OR OTHER EMPLOYEE OF THE BOARD DESIGNATED TO
 HEAR A CASE, MAY REQUIRE
 
    PAYMENT BY THE AGENCY INVOLVED OF REASONABLE ATTORNEY FEES INCURRED
 BY AN EMPLOYEE OR
 
    APPLICANT FOR EMPLOYMENT IF THE EMPLOYEE OR APPLICANT IS THE
 PREVAILING PARTY AND THE BOARD,
 
    ADMINISTRATIVE LAW JUDGE, OR OTHER EMPLOYEE, AS THE CASE MAY BE,
 DETERMINES THAT PAYMENT BY
 
    THE AGENCY IS WARRANTED IN THE INTEREST OF JUSTICE, INCLUDING ANY
 CASE IN WHICH A PROHIBITED
 
    PERSONNEL PRACTICE WAS ENGAGED IN BY THE AGENCY OR ANY CASE IN WHICH
 THE AGENCY'S ACTION WAS
 
    CLEARLY WITHOUT MERIT.
 
    (2) IF AN EMPLOYEE OR APPLICANT FOR EMPLOYMENT IS THE PREVAILING
 PARTY AND THE DECISION IS
 
    BASED ON A FINDING OF DISCRIMINATION PROHIBITED UNDER SECTION
 2302(B)(1) OF THIS TITLE, THE
 
    PAYMENT OF ATTORNEY FEES SHALL BE IN ACCORDANCE WITH THE STANDARDS
 PRESCRIBED UNDER SECTION
 
    706(K) OF THE CIVIL RIGHTS ACT OF 1964(42 U.S.C. 2000E-5(K)).