22:0597(65)AR - DOD Dependents School, Pacific Region and Overseas Education Association -- 1986 FLRAdec AR

 22 FLRA No. 65
 
 DEPARTMENT OF DEFENSE 
 DEPENDENTS SCHOOLS (DoDDS), 
 PACIFIC REGION
 Activity
 
 and
 
 OVERSEAS EDUCATION 
 ASSOCIATION (OEA)
 Union
 
                                            Case No. 0-AR-985
 
                        ORDER DISMISSING EXCEPTIONS
 
                         I.  STATEMENT OF THE CASE
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Herbert Oestreich filed by the Union under section 7122(a) of
 the Federal Service Labor-Management Relations Statute and part 2425 of
 the Authority's Rules and Regulations.  Because the exceptions presented
 an issue of the Authority's jurisdiction, the Authority requested and
 received from the parties statements of position on this issue.
 
                  II.  BACKGROUND AND ARBITRATOR'S AWARD
 
    The grievance in this case concerned the removal of the grievant, a
 teacher in the Department of Defense Overseas Dependents Schools System,
 who apparently is not a preference eligible.  As his award the
 Arbitrator denied the grievance finding that management had proved by a
 preponderance of the evidence that the grievant's removal was for just
 cause.
 
                      III.  ANALYSIS AND CONCLUSIONS
 
    The Authority has determined that it is without jurisdiction to
 review the Union's exceptions.  Section 7122(a) of the Statute
 pertinently provides:
 
          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).
 
    As relevant to this case, the matters described in section 7121(f) of
 the Statute /1/ include matters similar to those covered under 5 U.S.C.
 Section 7512, such as removal actions, which arise under other personnel
 systems.  In this case, for the reasons which follow, the Authority
 concludes that the award relates to a matter that is similar to those
 covered under section 7512 and that the matter has arisen under another
 personnel system within the meaning of section 7121(f).
 
    The legislative history of the Statute provides one specific example
 of "(an)other personnel syste(m)." The report of the Senate Governmental
 Affairs Committee preceding the enactment of the Statute in explaining
 the identical reference in section 7121(e) of the Statute /2/ used as an
 example the personnel system established by 38 U.S.C. Sections 4101-4119
 for Department of Medicine and Surgery (DM&S) professional employees of
 the Veterans Administration.  S. Rep. No. 95-969, 95th Cong., 2d Sess.
 110 (1978).  In VA Medical Center, Northport, New York v. FLRA, 732 F.2d
 1128 (2d Cir. 1984), the court noted some of the features of this
 personnel system which distinguishes it from the general Federal civil
 service.  Specifically, the court noted that qualifications for DM&S
 professionals are determined "without regard to civil service
 regulations," 38 U.S.C. Section 4106(a);  DM&S professionals have a
 different probationary period than other civil service employees, 38
 U.S.C. Section 4106(b);  their hours, conditions of employment, and
 leaves of absence are determined "notwithstanding any law, Executive
 Order, or regulation," 38 U.S.C. Section 4108(a);  and they are paid
 according to special grades and scales, 38 U.S.C Section 4107." Id. at
 1130 n.4.
 
    Using this personnel system as a benchmark, the Authority concludes
 that the Defense Department Overseas Teachers Pay and Personnel
 Practices Act (the Act), Pub. L. No. 86-91, 73 Stat. 214 (1959), 20
 U.S.C. Sections 901-907, likewise established a "personnel syste(m),"
 within the meaning of section 7121(f), for teachers in schools operated
 by the Department of Defense (DOD) in an overseas area for dependents of
 members of the Armed Forces and dependents of civilian employees of DOD.
  As a matter of background, the court in March v. U.S., 506 F.2d 1306
 (D.C. Cir. 1974), explained that overseas dependents schools were
 established after World War II to provide educational facilities abroad
 for dependents of military and civilian personnel.  Id. at 1311.  Until
 1959 the teachers in these schools were subject to civil service laws
 and regulations which had created a number of inequities.  Id. (citing
 S. Rep. No. 141, 86th Cong., 1st Sess. 2 (1959)).  As a result Congress
 sought to correct this situation of inequities by enacting legislation
 to specifically address the employment and salary practices of DOD
 respecting overseas teachers.  Id.  The statutory enactment, as
 specifically entitled, includes "personnel practices," and the Senate
 report that accompanied the bill that was enacted and signed into law
 specifically stated that the purpose of the bill was "to provide a
 system of personnel administration for school-teachers and certain
 school officers and other employees of the dependents schools operated
 by (DOD) in overseas areas." S. Rep. No. 141, 86th Cong., 1st Sess. 1
 (1959).  The report also stated that"(t)he proposed system recognizes
 and corrects deficiencies in the present system which (DOD) has
 identified and which long have been apparent." The major provision and
 means enacted to correct the deficiencies was to no longer generally
 subject such teachers to civil service laws and regulations as the
 source of their personnel system and instead to have the Secretary of
 Defense prescribe and issue regulations to provide for a system of
 personnel administration.  Under the specific provision of 20 U.S.C.
 Section 902(a), such regulations shall govern:  "(1) the establishment
 of teaching positions;  (2) the fixing of basic compensation for
 teachers and teaching positions . . .; (3) the entitlement of teachers
 to compensation;  (4) the payment of compensation to teachers;  (5) the
 appointment of teachers;  (6) the conditions of employment of teachers;
 (7) the length of the school year . . .; (8) the leave system for
 teachers;  (9) quarters, allowances, and additional compensation for
 teachers;  and (10) such other matters as may be relevant and
 appropriate to the purposes of this chapter." Thus, as noted by the
 court in March, DOD, pursuant to the Act, has promulgated regulations to
 "conduct the employment and salary practices applicable to teachers and
 teaching positions." 506 F.2d at 1311-12 (quoting Act of July 17, 1959,
 Pub. L. No. 86-91, Section 5(a), 73 Stat. 214).
 
    As noted with respect to DM&S professionals, the source of their
 personnel system in large measure is not general civil service laws and
 regulations, but instead is 38 U.S.C. chap 73.  Because the sources of
 the "employment and salary practices" applicable to overseas teachers,
 similar to the situation of DM&S professionals, are the Act and the
 regulations of the Secretary of Defense prescribed by and issued
 pursuant to the Act, and not civil service laws and regulations
 generally, the Authority finds the "system of personnel administration"
 for overseas teachers, S. Rep. No. 141, 86th Cong., 1st Sess. 1 (1959),
 to be "(an)other personnel syste(m)" within the meaning of section
 7121(f).  Consequently, the Arbitrator's award relating to the
 grievant's removal relates to a matter described in section 7121(f).
 Under section 7122(a), exceptions to the Arbitrator's award may not be
 filed with the Authority, and therefore the Authority is without
 jurisdiction to review the Union's exceptions.
 
                                IV.  ORDER
 
    Accordingly, for these reasons, the Union's exceptions are dismissed.
 
    Issued, Washington, D.C., July 15, 1986.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) Section 7121(f) pertinently provides:
 
          In matters similar to those covered under sections 4303 and
       7512 of this title which arise under other personnel systems and
       which an aggrieved employee has raised under the negotiated
       grievance procedure, judicial review of an arbitrator's award may
       be obtained in the same manner and on the same basis as could be
       obtained of a final decision in such matters raised under
       applicable appellate procedures.
 
    (2) Section 7121(e)(1) pertinently provides:
 
          Matters covered under sections 4303 and 7512 of this title
       which also fall within the coverage of the negotiated grievance
       procedure may, in the discretion of the aggrieved employee, be
       raised either under the appellate procedures of section 7701 of
       this title or under the negotiated grievance procedure, but not
       both.  Similar matters which arise under other personnel system
       applicable to employees covered by this chapter may, in the
       discretion of the aggrieved employee, be raised either under the
       appellate procedures, if any, applicable to those matters, or
       under the negotiated grievance procedure, but not both.