41:0465(43)AR - - Intl. Organization of Masters, Mates and Pilots and Panama Canal Commission - - 1991 FLRAdec AR - - v41 p465
[ v41 p465 ]
The decision of the Authority follows:
41 FLRA No. 43
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on an exception to an award of Arbitrator Marshall J. Seidman 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 Rules and Regulations. The Agency filed an opposition to the Union's exception.
The grievants filed grievances claiming that they had been improperly denied an overseas tropical differential. The Arbitrator determined that they were not entitled to the differential and denied the grievances.
We conclude that the Union fails to establish that the award is deficient, and we will deny the exception.
II. Background and Arbitrator's Award
In 1989, five Agency employees, who are U.S. citizens and are employed as pilots with the rank of captain, applied for an overseas tropical differential. All five employees had been locally hired on a permanent basis after July 3, 1976, and had never received and previously had never requested payment of the differential. The Agency denied the requests, stating that none of the employees was entitled to payment of the differential under 35 C.F.R. § 251.31,(*) which sets forth the criteria for eligibility for payment of the differential.
All five employees filed grievances over the denial of payment of the differential. The grievances were not resolved. The grievances were consolidated and were submitted to arbitration.
Before the Arbitrator, the Union noted that the differential serves as a compensation incentive in the recruitment of U.S. citizens to work for the Agency. The Union argued that because U.S. citizens recruited in the United States receive the differential, the grievants, as U.S. citizens, should also receive the differential. The Union claimed that the fact that they were locally hired is irrelevant to the purpose of the differential because the grievants similarly gave up the benefits of residing in the United States to work for the Agency.
The Arbitrator determined that the clear language of 35 C.F.R. § 251.31 did not support the Union's argument. The Arbitrator stated that the criteria for payment of the differential are based on specific facts. Specifically, at the time the grievants were hired, an employee must have been recruited in the United States or, after having been hired, must have been paid the differential in order to retain the employee. The Arbitrator concluded that the grievants failed to meet any of the criteria for payment of the differential because none of the grievants was recruited in the United States and, during the course of their employment, the Agency never offered, and the grievants never requested, the payment of the differential in order to persuade them to retain their employment. Accordingly, the Arbitrator ruled that the grievants were not entitled to the payment of an overseas tropical differential at the time of their original local hire or at any subsequent time, and he denied the grievances.
In denying the grievances, the Arbitrator also ruled that under the authority granted him by the parties pursuant to their collective bargaining agreement, he was not authorized to resolve alleged violations of the U.S. Constitution. Therefore, the Arbitrator did not address the grievants' alleged denials of due process and equal protection of the laws.
III. Positions of the Parties
The Union contends that the award is contrary to law and regulation. The Union argues that the award denies the grievants equal pay for equal work and fair and equitable treatment in violation of law and regulations governing overseas employment.
The Agency argues that the Union's exception is nothing more than a bare assertion that the award is contrary to law and regulation without any support. The Agency claims that the exception constitutes disagreement with the Arbitrator's evaluation of the evidence and his interpretation and application of the collective bargaining agreement and provides no basis for finding the award deficient.
IV. Analysis and Conclusions
We conclude that the Union fails to establish that the award is contrary to any law or regulation governing overseas employment.
The Agency, by regulation in 35 C.F.R. § 251.31, has established an overseas tropical differential to be paid to specified categories of employees. The differential primarily serves as a financial incentive to be used by the Agency in the recruitment of U.S. citizens residing in the United States to work for the Agency and in the retention of employees employed by the Agency. The Arbitrator reviewed the local hiring of the grievants and the fact that the Agency had never offered, and the grievants had never requested, the payment of the differential in order to persuade them to retain their employment. On this basis, he concluded that the grievants were not entitled to payment of the differential under 35 C.F.R. § 251.31.
In its exception, the Union is not actually disputing the Arbitrator's interpretation and application of 35 C.F.R. § 251.31. Instead, the Union is challenging the validity of 35 C.F.R. § 251.31 by arguing that the categories of employees established by 35 C.F.R § 251.31 are unlawful because they fail to include the grievants, as U.S. citizens, among the categories of employees entitled to be paid the differential.
The Union fails to specify what law or regulation governing overseas employment has been violated. Furthermore, the Union offers no citations of authority for its assertions that the Agency was required by laws and regulations providing for equal pay for equal work and for fair and equitable treatment to provide for payment of an overseas tropical differential to the grievants under 35 C.F.R. § 251.31, and no such authority is apparent to us. Accordingly, we conclude that no basis is provided for finding that the award is contrary to law or regulat