41:1362(105)AR - - DOD Dependents Schools and Overseas Federation of Teachers - - 1991 FLRAdec AR - - v41 p1362

[ v41 p1362 ]
The decision of the Authority follows:

41 FLRA No. 105











August 27, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Peter Florey. The Arbitrator concluded that the grievant was entitled to a living quarters allowance (LQA).

The Agency filed exceptions to the award 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.

For the following reasons, we conclude that the Agency has not demonstrated that the award is deficient. Accordingly, the Agency's exceptions will be denied.

II. Background and Arbitrator's Award

The grievant, a teacher in the Agency's school system, was recruited outside the United States. While employed in Okinawa, Japan, the grievant entered the Agency's Inter-Regional Transfer Program (IRTP). Through the IRTP, she obtained a transfer to an Agency school in Zaragoza, Spain. After arriving in Zaragoza, the grievant received LQA for more than 7 months before the Agency informed her that the LQA had been paid erroneously and had to be repaid. She then filed a grievance.

When the grievance was not resolved, it was submitted to arbitration. The Arbitrator stated that the issue was the grievant's "entitlement . . . to Living Quarters Allowance . . . ." Award at 1.

The Arbitrator relied on U.S. Department of Defense Dependents Schools, Mediterranean Region and Overseas Federation of Teachers, 36 FLRA 861 (1990) (DoDDS, Mediterranean Region), in which the Authority denied the Agency's exceptions to another award in which the Arbitrator found that employees who are recruited outside the United States but are transferred under the IRTP have the same entitlement to LQA as teachers who are recruited in the United States. The Arbitrator stated that his previous award and the Authority decision "addressed themselves not only to the Government-wide regulation of the State Department, but also to the Agency's own regulation . . . ." Award at 9.(1)

The Arbitrator rejected the Agency's argument that, under its interpretation of its regulation, the grievant was not entitled to LQA. The Arbitrator stated that, consistent with his previous award, the question of whether a reassignment under the IRTP was "management-generated," so as to entitle the grievant to LQA under the applicable Department of Defense Directive, "does not depend on some magic formula, nor on its designation by Management, but on the facts surrounding its implementation . . . ." Id. According to the Arbitrator, those facts "leave no doubt that [the IRTP] is management-generated and management-operated and that employment can be terminated if a teacher fails to accept a relocation." Id. Accordingly, the Arbitrator sustained the grievance. He directed the Agency to restore the grievant's LQA and other benefits and awarded interest on all money owed to the grievant.

III. The Agency's Exceptions

The Agency contends that the award is contrary to Department of State Standardized Regulations (DSSRs) and Department of Defense (DoD) Directive 1400.25-M (the DoD Directive). The Agency asserts that, under the DSSRs, an employee recruited outside the United States is not entitled to LQA unless, as relevant here, the employee is reassigned pursuant to a "management-generated" action. Exceptions at 4. The Agency argues that the Arbitrator's conclusion that a transfer under the IRTP is "management-generated" is inconsistent with section 2-2b(6) of the DoD Directive. Id.

IV. The Union's Opposition

The Union contends that the award is consistent with all applicable regulations. According to the Union, the Agency's exceptions should be denied based on the Authority's decisions in Department of Defense Dependents Schools, Pacific Region and Overseas Education Association, Pacific Region, 30 FLRA 1206 (1988) (DoDDS, Pacific Region) and DoDDS, Mediterranean Region.

V. Analysis and Conclusions

Section 7122(a) of the Statute provides, as relevant here, that an arbitration award is deficient if it conflicts with any rule or regulation. Under this section, an award that conflicts with an enforceable Government-wide rule or regulation is deficient. See generally, U.S. Department of the Army, Fort Campbell District, Third Region, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 37 FLRA 186, 191-95 (1990) (Fort Campbell). In addition, an arbitration award that conflicts with agency rules or regulations is deficient if the rules or regulations govern the disposition of the matter resolved by the award and the rules or regulations do not conflict with provisions of an applicable collective bargaining agreement. Id. at 194.

This case involves Government-wide and Agency regulations. In particular, subsection 031.12c of the DSSRs provides that LQA may be paid to an employee who is recruited outside the United States provided that "as a condition of employment by a Government agency, the employee was required by that agency to move to another area, in cases specifically authorized by the head of agency." This subsection is a Government-wide regulation. Overseas Education Association, Inc. and Department of Defense, Office of Dependents Schools, 22 FLRA 351, 356 (1986), affirmed sub nom. Overseas Education Association v. FLRA, 827 F.2d 814 (D.C. Cir. 1987). The DoD Directive states, in pertinent part, that LQA may be paid pursuant to subsection 031.12c of the DSSRs when an employee is relocated pursuant to a "management-generated action." The Directive also states, however, that a "move effected through a voluntary reassignment program is not considered to be a management-generated action."

The Agency asserts that the Arbitrator's award is inconsistent with the DoD Di