[ v13 p475 ]
The decision of the Authority follows:
13 FLRA No. 83 DEPARTMENT OF DEFENSE DEPENDENTS SCHOOLS Agency and OVERSEAS EDUCATION ASSOCIATION Union Case No. 0-AR-367 DECISION This matter is before the Authority on exceptions to the award of Arbitrator Millard Cass 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 Rules and Regulations. The Union filed an opposition to the Agency's exceptions. /1/ The dispute in this matter concerns the Agency's salary schedule for school year 1979-80. A grievance was filed and ultimately submitted to arbitration disputing in a number of respects the consistency of the salary schedule with governing law, the Overseas Teachers Pay and Personnel Practices Act (the Act or Overseas Teachers Pay Act), specifically 20 U.S.C. 903(c). /2/ The parties were unable to agree on a joint submission of the issues for arbitration. Consequently, the Arbitrator in accordance with the parties' agreement /3/ determined the issues to be resolved as those that were specifically addressed by the parties at the hearing. The first issue addressed was whether the Agency acted properly in using salary data computed only as of the beginning of the school year of the school systems surveyed, rather than prorating the data for school systems which granted pay increases during the school year. The Arbitrator determined that in order to be in compliance with the Overseas Teachers Pay Act, 20 U.S.C. 901-907, the Agency was required to use salary data that was prorated for those school systems which changed salary schedules during the school year. As to the other issues addressed by the parties, the Arbitrator similarly determined that compliance with the Act and the parties' collective bargaining agreement required the Agency to establish a pay lane for a bachelor's degree plus 15 credit hours (B.A. + 15) in the salary schedule. He also determined that compliance with the Act required the Agency to use salary data from surveyed schools with a pay lane for educators with a certificate of advanced graduate studies or for educators called education specialists when it fixed the salary rates of the pay lane for a master's degree plus 30 credit hours (M.A. + 30) in the salary schedule. Accordingly, the Arbitrator as his award sustained the grievance. The agency in its first exception to the award contends that the Arbitrator exceeded his authority by addressing an issue not properly submitted to arbitration. Specifically, the Agency argues that the issue of the use of salary data pertaining to education specialists and educators with a certificate of advanced graduate studies was not properly submitted to arbitration and that the Arbitrator therefore exceeded his authority by requiring use of that salary data with respect to fixing the salary rates of the M.A. + 30 pay lane. The Authority concludes that the exception provides no basis for finding the award deficient. As noted, there was no joint submission of the issues for arbitration. Thus, the Arbitrator by express authority of the parties' agreement determined the issues to be resolved as those specifically addressed by the parties at the hearing including the dispute over the salary data for the M.A. + 30 pay lane. Because the award is directly responsive to and properly confined to the issues as the Arbitrator framed them, the Agency fails to establish that the Arbitrator exceeded his authority. See Department of Defense Dependents Schools and Overseas Education Association, 12 FLRA No. 14 (1983). In its second exception the Agency contends that by requiring the establishment of a B.A. + 15 pay lane, the award does not draw its essence from the parties' collective bargaining agreement. Specifically, the Agency argues that the bargaining history to the pay lane provision of the agreement makes it clear that the Arbitrator's interpretation of this provision manifestly disregards the agreement. However, this exception represents an attempt by the Agency to have its own interpretation and application of the pay lane provision substituted for that of the Arbitrator. Consequently, the exception merely constitutes disagreement with the Arbitrator's interpretation and application of the agreement to find a B.A. + 15 pay lane warranted and provides no basis for finding that the award does not draw its essence from the agreement. See Department of Health and Human Services, Social Security Administration, Louisville, Kentucky District and National Federation of Federal Employees, Local 1790, 10 FLRA No. 73 (1982). In its third exception the Agency contends that by requiring the use of salary data that is prorated for school systems which changed salary schedules during the school year, the award is contrary to the Overseas Teachers Pay Act. In support the Agency principally maintains that the court in March v. United States, 506 F.2d 1306 (D.C. Cir. 1974) expressly held that the Act requires salaries of overseas teachers to be equivalent to present salaries of surveyed schools not past or future salaries. Thus, the Agency argues that the award is contrary to the equality mandate of 20 U.S.C. 903(c) /4/ because it requires the use of future data rather than present salary data as of the beginning of the school year. The Agency similarly argues that in cases such as this one where a majority of the surveyed school systems do not change salary schedules during the school year, there is no basis for requiring the Agency to use such prorated salary data. The Agency further maintains that since March it has been recognized in Overseas Federation of Teachers v. United States, 674 F.2d 34 (D.C. Cir. 1982), that there necessarily exists a reasonable limit to the precision with which the salaries of overseas teachers need to be computed, and the Agency essentially argues that the Arbitrator exceeded that limit. The Authority concludes that the Agency has not established that by requiring the use of salary data that is prorated for school systems which changed salary schedules during the school year, the award is in any manner contrary to the Overseas Teachers Pay Act. The Act expressly entitles overseas teachers to receive salaries "equal to" the "average" of those of the defined class of teachers. 20 U.S.C. 903(c); March at 1313. The court in March further held that the clear purpose of the Act, as amended, was to guarantee the overseas teachers the same salaries they would receive for performing the same duties in stateside schools. Id. at 1313. In terms of this case, the Agency has not demonstrated that the Arbitrator's judgment that the equality mandate of the Act compelled consideration by the Activity of pay increases during the school year in school systems required to be surveyed is inconsistent with either the Act or the decision in March. Likewise, the Agency has not substantiated that requiring the use of such prorated salary data reaches the "point of diminishing returns" where the administrative burden in gathering such data greatly exceeds the utility to be derived from its use. See Overseas Federation of Teachers at 37. Accordingly, the Agency's exceptions are denied. Issued, Washington, D.C., December 9, 1983 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The Union also filed an exception, but subsequently requested permission to withdraw that exception. That request is hereby granted. /2/ 20 U.S.C. 903(c) (Supp. V 1981) obligates the Agency to fix the basic compensation for teachers and teaching positions . . . at rates equal to the average of the range of rates of basic compensation for similar positions of a comparable level of duties and responsibilities in urban school jurisdictions in the United States of 100,000 or more population. /3/ Article 13, Section 10E of the parties' agreement pertinently provides: If the parties fail to agree on a joint submission of the issue for arbitration, . . . the arbitrator shall determine the issue or issues to be heard. /4/ Supra note 2.