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

 3 FLRA No. 129
 
 DEPARTMENT OF DEFENSE
 DEPENDENTS SCHOOLS
 Activity
 
 and
 
 OVERSEAS EDUCATION
 ASSOCIATION, INC.
 Union
 
                                            Case No. 0-AR-73
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON A PETITION FOR REVIEW AND STAY
 OF A PORTION OF THE AWARD OF ARBITRATOR HERBERT L. MARX, JR. FILED BY
 THE UNION UNDER SECTION 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (5 U.S.C. SEC. 7122(A)).
 
    ACCORDING TO THE ARBITRATOR'S AWARD, THE DISPUTE IN THIS MATTER AROSE
 WHEN THE PRINCIPAL OF THE BITBERG HIGH SCHOOL OF THE ACTIVITY SENT A
 TEACHER AT THE SCHOOL A MEMORANDUM CONCERNING HIS TEACHING ASSIGNMENT
 FOR THE 1979-80 SCHOOL YEAR.  THE MEMORANDUM CHANGED THE TEACHER'S
 ASSIGNMENT FROM THE PREVIOUS ASSIGNMENT OF THREE CLASSES OF INDUSTRIAL
 ARTS AND TWO GROUPS OF COOPERATIVE WORK EXPERIENCE (CWE) FOR THE 1978-79
 SCHOOL YEAR TO FIVE CLASSES OF INDUSTRIAL ARTS FOR THE 1979-80 SCHOOL
 YEAR.
 
    THE TEACHER AND THE UNION PROTESTED THIS CHANGE THROUGH THE
 NEGOTIATED GRIEVANCE PROCEDURE.  THE UNION, ALTHOUGH IT DID NOT QUESTION
 MANAGEMENT'S RIGHT TO DETERMINE TEACHING ASSIGNMENTS, TOOK THE POSITION
 THAT THE PARTIES' COLLECTIVE BARGAINING AGREEMENT REQUIRED MANAGEMENT TO
 FOLLOW MUTUALLY AGREED PROCEDURES, WHICH IT ALLEGED WAS NOT DONE.  THE
 MATTER ULTIMATELY WAS SUBMITTED TO ARBITRATION.
 
    THE ARBITRATOR STATED ONE OF THE "PRINCIPLE POINTS" BEFORE HIM FOR
 RESOLUTION AS :  /1/
 
    (WHETHER) THE ACTION TAKEN IN REGARD TO (THE TEACHER'S) 1979-80
 TEACHING ASSIGNMENT (WAS)
 
    COVERED BY ARTICLE 28, SECTION 5, REQUIRING A SIMPLE NOTIFICATION
 "PRIOR TO THE CLOSE OF THE
 
    CURRENT SCHOOL YEAR";  OR WAS IT AN "INVOLUNTARY REASSIGNMENT",
 COVERED BY THE MORE DETAILED
 
    PROCEDURE SPECIFIED IN ARTICLE 50?
 
    THE ARBITRATOR SET FORTH THE ARTICLES IN QUESTION AS FOLLOWS:
 
    ARTICLE 28-- GENERAL ADMINISTRATION PROCEDURES
 
   *          *          *          *
 
 
    SECTION 5.
 
    AN ON-BOARD TEACHER WHO PLANS TO RETURN TO THE SAME SCHOOL THE
 FOLLOWING SCHOOL YEAR, SHALL BE NOTIFIED OF HIS/HER TEACHING ASSIGNMENT
 AND NUMBER OF CLASSES PRIOR TO THE CLOSE OF THE CURRENT SCHOOL YEAR.
 CHANGES IN SUCH ASSIGNMENTS WILL BE LIMITED TO UNEXPECTED CHANGES IN
 CURRICULUM, MISSION, STAFFING, AND RECRUITMENT ACTIONS.
 
    ARTICLE 50-- INVOLUNTARY REASSIGNMENT
 
   *          *          *          *
 
 
    SECTION 1.
 
    THE NEED TO EFFECT A REASSIGNMENT IS A RIGHT RETAINED BY MANAGEMENT.
 HOWEVER, WHILE INVOLUNTARY REASSIGNMENTS SHALL BE KEPT TO A MINIMUM, IT
 MAY BECOME NECESSARY TO TRANSFER AN INDIVIDUAL EITHER FROM ONE SCHOOL
 LOCATION TO ANOTHER SCHOOL LOCATION OR FROM ONE ASSIGNMENT IN ONE
 GRADE/SUBJECT AREA IN WHICH HE/SHE IS QUALIFIED TO TEACH.  WHENEVER
 POSSIBLE, AND IF TIME PERMITS, MANAGEMENT SHALL ACCOMPLISH SUCH
 REASSIGNMENTS THROUGH THE USE OF QUALIFIED VOLUNTEERS.  IF THE
 REQUIREMENT CANNOT BE RESOLVED FROM THE USE OF QUALIFIED VOLUNTEERS, AN
 INDIVIDUAL MAY BE SELECTED FOR INVOLUNTARY REASSIGNMENT WITH AS MUCH
 ADVANCE NOTICE AS CIRCUMSTANCES WARRANT.  THE WRITTEN NOTICE OF
 INVOLUNTARY REASSIGNMENT WILL CONTAIN THE FOLLOWING AS A MINIMUM:
 
    A.  REASON(S) FOR THE ACTION
 
    B.  WHY THE TEACHER WAS SELECTED
 
    C. AN OPPORTUNITY FOR THE INDIVIDUAL TO GIVE REASONS WHY HE/SHE
 SHOULD NOT BE
 
    REASSIGNED.  IN THIS STATEMENT THE INDIVIDUAL SHOULD INCLUDE ANY
 EXTENUATING CIRCUMSTANCES OF
 
    A PERSONAL NATURE WHICH HE/SHE FEELS SHOULD BE TAKEN INTO
 CONSIDERATION.
 
    SECTION 2.
 
    INVOLUNTARY REASSIGNMENTS WILL ONLY BE MADE FOR GOOD CAUSE.  AN
 EMPLOYEE MAY GRIEVE AN INVOLUNTARY REASSIGNMENT IN ACCORDANCE WITH THE
 GRIEVANCE PROCEDURES, ARTICLE 13, PROVIDED IN THIS CONTRACT.
 
    THE ARBITRATOR DENIED THE GRIEVANCE, HOLDING ARTICLE 50 OF THE
 PARTIES' AGREEMENT HAD NOT BEEN VIOLATED, SINCE IT WAS NOT THE
 APPLICABLE PROVISION IN THE CIRCUMSTANCES.
 
    IN HIS REASONING, THE ARBITRATOR STATED THAT ARTICLE 50 IS SPECIFIC
 AS TO "REASSIGNMENT", REFERRING TO TRANSFER FROM "ONE SCHOOL LOCATION TO
 ANOTHER SCHOOL LOCATION OR FROM ONE ASSIGNMENT IN ONE GRADE/SUBJECT AREA
 TO THAT IN ANOTHER GRADE/SUBJECT AREA." CITING A "DODDSEUR-OEA
 DELIBERATIONS SUMMARY RECORD FOR SEPTEMBER 28-29, 1978," HE DETERMINED
 THE CHANGE WAS NOT A REASSIGNMENT FROM ONE GRADE/SUBJECT AREA TO
 ANOTHER. HE FOUND INDUSTRIAL ARTS AND COOPERATIVE WORK EXPERIENCE WERE
 IN THE SAME GENERAL SUBJECT AREA OF "CAREER EDUCATION." THE ARBITRATOR
 CONCLUDED THAT THE 1979-80 SCHOOL YEAR ASSIGNMENT DID NOT CHANGE EITHER
 SCHOOL LOCATION OR SUBJECT AREA, IT MERELY INCREASED THE AMOUNT OF
 INDUSTRIAL ARTS ASSIGNMENT, AND IT DID NOT EVEN CHANGE THE GRIEVANT FROM
 A FULL-TIME COOPERATIVE WORK EXPERIENCE TEACHER TO A FULL-TIME
 INDUSTRIAL ARTS TEACHER.  THEREFORE, THE ARBITRATOR FOUND THE PROCEDURE
 UNDER ARTICLE 50 WAS NOT MANDATED IN THIS PARTICULAR CASE.
 
    THE UNION FILED A PETITION FOR REVIEW AND STAY OF THAT PORTION OF THE
 ARBITRATOR'S AWARD DISCUSSED ABOVE PURSUANT TO SECTION 7122(A) OF THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE /2/ AND PART 2425 OF
 THE AUTHORITY'S RULES AND REGULATIONS, 5 CRF PART 2425.  THE ACTIVITY
 FILED AN OPPOSITION.
 
    THE QUESTION BEFORE THE AUTHORITY IS WHETHER, ON THE BASIS OF THE
 UNION'S EXCEPTIONS, THE ARBITRATOR'S AWARD IS DEFICIENT BECAUSE IT IS
 CONTRARY TO ANY LAW, RULE, OR REGULATION, OR ON OTHER GROUNDS SIMILAR TO
 THOSE APPLIED BY FEDERAL COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT
 RELATIONS CASES.
 
    THE UNION ASSERTS THE AWARD IS CONTRARY TO LAW, RULE, AND REGULATION
 AND THAT "THE ASSUMPTIONS SUPPORTING THE UNDERLYING OPINION HAVE NO
 BASIS IN FACT AND ARE SO BLATANT A MISREPRESENTATION SO AS TO CONSTITUTE
 FRAUD AND THEREFORE EXCEEDS THE ARBITRATOR'S AUTHORITY." IT ARGUES THAT
 THE ARBITRATOR'S DEFINITION OF "SUBJECT AREA" AS READ IN REFERENCE TO
 THE DELIBERATIONS IS CONTRARY TO THE SUBJECT/CATEGORIES PUBLISHED IN AN
 ACTIVITY BROCHURE WHICH WAS PUBLISHED PURSUANT TO A DEPARTMENT OF
 DEFENSE DIRECTIVE.
 
    THE AUTHORITY WILL GRANT A PETITION FOR REVIEW OF AN ARBITRATOR'S
 AWARD WHERE IT APPEARS, BASED ON THE FACTS AND CIRCUMSTANCES DESCRIBED
 IN THE PETITION, THAT THE AWARD VIOLATES LAW, RULE OR REGULATION.
 HOWEVER, IN THIS CASE THERE IS NO BASIS FOR A FINDING THAT THE AWARD IS
 CONTRARY TO ANY LAW, RULE OR REGULATION OR IS DEFICIENT ON OTHER GROUNDS
 SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN PRIVATE SECTOR
 LABOR-MANAGEMENT RELATIONS CASES.  INSTEAD, THE CLEAR THRUSTS OF THE
 UNIONS' ARGUMENTS IN SUPPORT OF ITS EXCEPTION IS ITS DISAGREEMENT WITH
 THE ARBITRATOR'S INTERPRETATION AND APPLICATION OF THE COLLECTIVE
 BARGAINING PROVISIONS IN QUESTION, HIS FINDINGS OF FACT, AND HIS
 REASONING AND CONCLUSIONS ON THE MERITS OF THE ISSUE BEFORE HIM.  SUCH
 ASSERTIONS DO NOT CONSTITUTE A BASIS FOR FINDING AN ARBITRATION AWARD
 DEFICIENT.  UNITED STATES MISSILE MATERIEL READINESS COMMAND (USAMIRCOM)
 AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1858, AFL-CIO, 2
 FLRA NO. 60(JAN. 17, 1980);  FEDERAL AVIATION SCIENCE AND TECHNOLOGICAL
 ASSOCIATION AND FEDERAL AVIATION ADMINISTRATION, ALBUQUERQUE AIRWAY
 FACILITIES SECTOR, SOUTHWEST REGION, 2 FLRA NO. 85(FEB. 21, 1980).
 THEREFORE, THE UNION'S EXCEPTION PROVIDES NO BASIS FOR FINDING THE AWARD
 DEFICIENT UNDER 5 U.S.C. 7122(A) AND SECTION 2425.3 OF THE AUTHORITY'S
 RULES AND REGULATIONS.
 
    ACCORDINGLY, AND PURSUANT TO SECTION 2425.4 OF THE AUTHORITY'S RULES
 AND REGULATIONS, WE HEREBY SUSTAIN THE ARBITRATOR'S AWARD.  PURSUANT TO
 SECTION 2429.8 OF THE AUTHORITY'S RULES AND REGULATIONS, THE REQUEST FOR
 A STAY OF THE ARBITRATOR'S AWARD IS DENIED.
 
    ISSUED, WASHINGTON, D.C., JULY 31, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                          CERTIFICATE OF SERVICE
 
    COPIES OF THE DECISION OF THE FLRA IN THE SUBJECT PROCEEDING HAVE
 THIS DAY BEEN MAILED TO THE PARTIES LISTED:
 
    MR. ANTHONY CARDINALE
 
    DIRECTOR
 
    OFFICE OF DEPENDENTS SCHOOLS
 
    DEPARTMENT OF DEFENSE
 
    2461 ISENHOWER AVENUE
 
    ALEXANDRIA, VIRGINIA 22331
 
    MR. RONALD R. AUSTIN
 
    EXECUTIVE DIRECTOR AND GENERAL COUNSEL
 
    OVERSEAS EDUCATION ASSOCIATION
 
    1201 16TH STREET, N.W.
 
    WASHINGTON, D.C.  20036
 
    /1/ ALSO BEFORE THE ARBITRATOR WAS A QUESTION AS TO WHETHER THE
 PRINCIPAL OF THE GRIEVANT'S SCHOOL HAD FOLLOWED THE REQUIRED PROCEDURE
 IN REPLYING TO THE GRIEVANCE.  THE UNION DOES NOT TAKE EXCEPTION TO THE
 PORTION OF THE ARBITRATOR'S AWARD WHICH DEALT WITH THAT QUESTION.
 
    /2/ 5 U.S.C. SECTION 7122(A) PROVIDES:
 
    (A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
 AUTHORITY AN EXCEPTION
 
    TO ANY ARBITRATOR'S AWARD PURSUANT TO THE ARBITRATION (OTHER THAN AN
 AWARD RELATING TO A
 
    MATTER DESCRIBED IN SECTION 7121(F) OF THIS TITLE).  IF UPON REVIEW
 THE AUTHORITY FINDS THAT
 
    THE AWARD IS DEFICIENT--
 
    (1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE OR REGULATION;  OR
 
    (2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
 PRIVATE SECTOR
 
    LABOR-MANAGEMENT RELATIONS;
 
    THE AUTHORITY MAY TAKE SUCH ACTION AND MAKE SUCH RECOMMENDATIONS
 CONCERNING THE AWARD AS IT
 
    CONSIDERS NECESSARY, CONSISTENT WITH APPLICABLE LAWS, RULES, OR
 REGULATIONS.