53:0696(62)AR - - Indian Educators Federation, NM Federation of Teachers and Interior, Bureau of Indian Affairs, Albuquerque and Navajo Areas - - 1997 FLRAdec AR - - v53 p696



[ v53 p696 ]
53:0696(62)AR
The decision of the Authority follows:


53 FLRA No. 62

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

INDIAN EDUCATORS FEDERATION

NEW MEXICO FEDERATION OF TEACHERS

(Union)

and

U.S. DEPARTMENT OF THE INTERIOR

BUREAU OF INDIAN AFFAIRS

ALBUQUERQUE AND NAVAJO AREAS

(Agency)

0-AR-2746

_____

DECISION

September 30, 1997

_____

Before the Authority: Phyllis N. Segal, Chair; and Donald S. Wasserman, Member.

Decision by Chair Segal for the Authority.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator David Goodman filed by the Union and the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and Part 2425 of the Authority's Regulations. Each party filed an opposition to the other parties' exceptions, and the Union filed an objection to the Agency's opposition, to which the Agency responded.

The Union's initial grievance concerned nine separate objections to the Agency's pay practices for certain teachers at Bureau of Indian Affairs (BIA) schools. The Arbitrator granted two of the nine claims and denied the rest. The Agency has filed exceptions to the claims the Arbitrator granted and the Union has filed exceptions to the claims he denied, as well as objecting on other grounds.

For the reasons discussed below, we find that the Award is deficient in two respects and modify it. The Arbitrator's conclusion that the Agency impermissibly implemented the annual leave provisions of the law and his conclusion that these employees are not entitled to interest on the back pay awarded are contrary to law. 5 U.S.C. § 7120(a). In all other respects, the exceptions are denied.

II. Background and Arbitrator's Award

A. Statutory Background (1)

Before 1978, all BIA teachers were employed as General Schedule (GS) employees whose pay and working conditions were determined pursuant to Title 5, United States Code (Title 5). This situation changed with the passage of the Education Amendments of 1978, Pub. L. 95-561, which is now codified at 25 U.S.C. § 2012(a)-(o) (the BIA Statute), Appendix (App.) at part 1.(2) That statute provided that BIA teachers hired after 1978 would be hired in a yearly "contract" status.

Although contract teachers were excluded from coverage of Title 5 relating to various personnel matters, the Agency was required to pay them comparable salaries. 25 U.S.C. § 2011(h)(1)(1979). In addition, portions of Title 5 concerning the 8-hour workday, 40-hour workweek and payment of holiday pay remained applicable. 25 U.S.C. § 2011(a)(1)(1979). Teachers employed at the time the BIA Statute went into effect were permitted to either maintain their "status quo" GS status or make an "irrevocable election" and be covered under the new law. 25 U.S.C. § 2011(o)(1979).

In 1988, the BIA Statute was amended by the School Improvement Amendments, Public Law 100-297 (the 1988 Amendments). The 1988 Amendments provided that, after a 3-year phase-in period, the Agency would set the salaries of contract teachers at rates applicable to comparable positions in Department of Defense Dependent Schools (DoDDS). 20 U.S.C. § 901 et seq.(the DoDDS Statute), App. at part 6. DoDDS, in turn, sets its teachers' pay equal to the average pay of teachers in urban U.S. schools. 20 U.S.C. § 903(c).(3)

The 1988 Amendments also provided that status quo teachers would have another opportunity to elect to be paid under the contract teacher system. 25 U.S.C. § 2012(h)(1)(E)(ii), App. at part 2. Those who elected to become contract teachers would continue to have their leave determined under "the same leave system" that had applied prior to conversion. 25 U.S.C. § 2012(h)(1)(E)(iii).

In 1996, while the exceptions in this case were pending, the Appropriation Act for the Department of the Interior was enacted. This Act included a provision which relates to 25 U.S.C. § 2012(h):

[N]otwithstanding 25 U.S.C. § 2012(h)(1)(B) . . ., when the rates of basic compensation for teachers and counselors at Bureau-operated schools are established at the rates of basic compensation applicable to comparable positions in overseas schools under the [DoDDS] Act, such rates shall become effective with the start of the next academic year following the issuance of the Department of Defense salary schedule and shall not be effected retroactively.

Pub. L. 104-134, § 101(d), 110 Stat. 1321-171 (September 30, 1996).

B. Procedural Background and the Arbitrator's Award

In November 1989, the Union filed four grievances concerning the Agency's implementation of the 1988 Amendments. Those grievances alleged that the Agency had improperly set the salaries of contract teachers for the 1989-90 school year using the 1988 school year salary rates for DoDDS overseas teachers. In July 1993, those grievances were denied on the basis that the Union's request for arbitration had been untimely.

In August 1993, the Union filed additional grievances, nearly identical to the earlier grievances, concerning the Agency's implementation of the 1988 Amendments. The Union alleged that the Agency was continuing to improperly implement the 1988 Amendments, in violation of 25 U.S.C. § 2012(h) and Article 13 of the parties' agreement, App. at part 9, by:

(1) failing to close the compensation gap between the DoDDS system and the Agency's system by one third each year for the first three years after initial implementation;

(2) deliberately misrepresenting the compensation GS teachers would receive if they converted to contract status;

(3) not making an annual lump sum salary payment and pay adjustment similar to that made by DoDDS in April of each year;

(4) failing to pay sufficient annual leave to contract teachers who converted from the GS system under the 1988 Amendments.

(5) paying contract teachers on the basis of an eight hour work day in contrast to the DoDDS six-and-a-half hour work day;

(6) paying contract teachers on the basis of a 199-day work year in contrast to the DoDDS 190-day work year;

(7) paying contract teachers who work less than 199 days on a pro rata basis in contrast to the full salary DoDDS teachers are paid even if they work less than 190 days;

(8) calculating the daily salary rate for contract teachers on the basis of a 199-day work year in contrast to the DoDDS 190-day work year; and

(9) failing to grant contract teachers credit for prior teaching experience in excess of 5 years in contrast to DoDDS teachers who receive up to 10 years' credit.

As a remedy, the Union sought retroactive and prospective application of the 1988 Amendments to ensure equality with the DoDDS pay system. The Union also sought back pay and benefits with interest and attorney fees and expenses. The grievances were consolidated and were processed to arbitration.

In his decision, the Arbitrator first rejected Union claims 1 and 2, which related to the period prior to 1993. He determined that the grievances were timely only as to the 1993-94 and subsequent school years. Further, the Arbitrator held that, even if he accepted the Union's contention that the grievances concerned continuing violations, retroactive relief was not justified because:

(1) there was no substantive difference between the current grievances and the earlier grievances that were dismissed;

(2) implementation of conditions of employment for a particular school year occurs at the start of that school year, and as such, grievances could only be considered continuing to the beginning of that school year;

(3) there was no evidence that, in agreeing to the parties' contract in 1991, the Agency intended to make its 1989 implementation of the 1988 Amendments subject to retroactive challenge under the grievance procedure; and

(4) there was nothing in the Back Pay Act that would allow employees to avoid the time limits specified in a bargaining agreement for initiating grievances and impose a 6 year limitation period instead.

Next, sustaining claim number 3, the Arbitrator found that, based on the 1988 Amendments and the legislative history, App. at part 3, the Agency was obligated to pay contract teachers at the same rates paid DoDDS teachers, including payment of a lump sum adjustment retroactive to the beginning of a school year. According to the Arbitrator, the Agency's interpretation of the 1988 Amendments was not owed deference because its interpretation ran "counter to the plain meaning . . . of the [1988 Amendments]." Id. at 33. The Arbitrator also rejected the Agency's reliance on 25 C.F.R. § 38.6(c), App. at part 8, and other internal Agency issuances as "mere self-fulfilling prophecies of its faulty interpretation" of the 1988 Amendments. Id.

As to claim number 4, which concerned the use of annual leave on school vacations, the Arbitrator noted that the 1988 Amendments permitted GS employees who converted to contract status to continue to accrue and use leave under 5 U.S.C. § 6301 et seq. The Arbitrator found that, prior to 1988, during unpaid school vacations, GS teachers had been permitted to not use their annual leave and to go without pay. Employees who did this saved the unused annual leave for later use. The Arbitrator held that the 1988 Amendments required that employees who converted to contract status pursuant to section 2012(h)(1)(E) were entitled to use (or not use) annual leave in the same manner as they had before they converted. Thus, he concluded that the Agency violated this law by requiring these employees to use leave during school vacations.

The Arbitrator rejected claims 5 through 8, which asserted that BIA should use the same work day, work year, and daily pay rate as DoDDS. The Arbitrator held that, unlike DoDDS teachers, BIA contract teachers are subject to the 40-hour workweek and 8-hour workday provisions of 5 U.S.C. § 6101, App. at part 7, and the holiday provisions of 5 U.S.C. § 6103. The Arbitrator found that absent an express exemption from these provisions, the Agency could not "make employment at BIA schools match employment at DoDDS schools in every facet and condition of employment." Award at 37-38. Moreover, the Arbitrator found that nothing in the 1988 Amendments required the Agency "to adopt every element" of the DoDDS pay system and that there was no statutory basis "upon which to provide for two systems that are equivalent in every way." Id.

Finally, as to claim number 9, the Arbitrator concluded that the Agency did not violate the 1988 Amendments by recognizing only 5 years of a teacher's prior experience. The Arbitrator noted that the legislative history of the 1988 Amendments indicated that the Agency was to retain existing pay practices.

As a remedy for failing to set salaries in accordance with the 1988 Amendments, the Arbitrator ordered the Agency to pay appropriate lump sum adjustments, based on the DoDDS payments, to all contract teachers employed in the 1993-94 and 1994-95 school years. The Arbitrator also ordered the Agency to pay the lump sum adjustments in the future in order to assure that BIA salary rates remain equal to DoDDS rates.

As a remedy for the failure to pay annual leave to the employees who converted to contract status, the Arbitrator ordered the Agency to reimburse them for any leave they were forced to use. However, the Arbitrator denied the Union's request for interest, finding that, absent special circumstances, an award of interest was not required by the parties' agreement. As to the Union's request for expenses, the Arbitrator determined that the parties' agreement provided that the Arbitrator's fees and expenses were to be borne equally by the parties. Finally, noting that neither party had argued the issue of attorney fees, the Arbitrator retained jurisdiction to hear and decide a request for attorney fees.

III. Analysis and Conclusions

A. Introduction and Summary

Both parties have raised numerous issues and exceptions that we resolve in this decision. Their arguments, as well as the Authority's analysis and conclusions, are described in the sections that follow:

Part B denies the Union's objection to the Agency's right to support its earlier filed exceptions by citing, in the Agency's opposition to the Union's exceptions, a subsequently decided decision by the U.S. Supreme Court. We also reject the Agency's argument that the Union does not have a right to assert this objection.

Part C denies the Union's exceptions to the Arbitrator's dismissal, on procedural grounds, of the Union's claims concerning pay practices prior to the 1993-1994 school year.

Part D denies the Agency's exception to the Arbitrator's holding that it improperly failed to adopt yearly adjustments to the DoDDS pay schedule.

Part E grants the Agency's exception to the Arbitrator's holding that it improperly required employees to use annual leave during school holidays.

Part F denies the Union's exceptions to the Arbitrator's holdings that the Agency properly adopted practices different from DoDDS relating to the length of the school year, the daily pay rate, the length of the school day, and service credit for initial placement.

Part G grants the Union's exception that the Arbitrator improperly refused to award interest on back pay.

B. The Authority Will Consider a Case Cited in the Agency's Opposition to the Union's Exceptions

1. Positions of the Parties

a. Union's Objection

The Union filed an objection to the Agency's request, made in its opposition to the Union's exceptions, that the Authority consider the Supreme Court's decision in Babbit v. Sweet Home Chapter of Communities for a Greater Oregon, 115 S. Ct. 2407 (1995) (Sweet Home Chapter). This case was decided after the Agency filed its exceptions. The Union asserted that the Agency should not be permitted to bolster its own exceptions in an opposition to the Union's exceptions. U.S. Department of the Army, Fort Campbell, Kentucky and AFGE Local 2022, 37 FLRA 1102 (1990) (Fort Campbell). The Union claims that, as it is prejudiced by the Agency's request, such request should be denied to the extent that it constitutes new exceptions. The Union also argues that the Agency's reliance on Sweet Home Chapter is misplaced because the Authority owes no deference to the Agency's interpretation of the 1988 Amendments.

b. Agency's Response

The Agency asserts that the Authority should disregard the Union's objection because the Authority's regulations do not permit such supplemental filings. The Agency also argues that its request that the Authority consider Sweet Home Chapter is not a new exception, but merely supports the case law cited and discussed in its original exceptions.

2. Analysis and Conclusions

As both parties filed exceptions in this case, each party has the right under Section 2425.1 of the Authority's Regulations to file an opposition to the other party's exceptions. Although each party may file an opposition, it is well established that a party may not raise additional exceptions in its opposition. See, e.g., General Services Administration and American Federation of Government Employees, Council 236, 45 FLRA 1226, 1231 (1992).

These regulations provide only for the filing of exceptions and oppositions to exceptions, and additional filings are generally require permission. Where one party believes that another has improperly raised a new exception in an opposition, however, the objection to the claimed new exception is simply an opposition to the new exception, and is permitted by the rules. Thus, no special permission was needed for the Union to file its objection.

However, we deny the Union's objection. The Agency's request here that the Authority consider Sweet Home Chapter does not constitute a new exception. The Agency merely cited Sweet Home Chapter as subsequent authority for its position that was not available at the time it filed its exceptions. The Agency's position had been raised before the Arbitrator and again in its exceptions. Further, the Court's decision is readily discoverable through research and could be relied on by the Authority even if neither party cited to it.

C. The Union Has Not Demonstrated That the Arbitrator Exceeded His Authority in Dismissing Claims Arising Prior to the 1993-1994 School Year

1. Positions of the Parties

a. Union's Exceptions

The Union asserts that the Arbitrator failed to properly apply the continuing violation doctrine when he refused to consider claims 1 and 2, which concern the Agency's implementation of the 1988 Amendments in 1989. The Union relies on American Federation of Government Employees, Local 48 and Department of the Navy, Puget Sound Naval Shipyard, Bremerton, VA, 46 FLRA 1328 (1993), (Puget Sound Naval Shipyard). The Union also argues that nothing in the parties' agreement precludes the arbitration of these issues.

The Union asserts that the Arbitrator's reliance on the doctrines of res judicata and laches to limit relief in this case is in error. The Union claims that the doctrine of res judicata is not applicable because: (1) the 1989 grievances were filed by a different party; (2) the 1989 grievances raised only two general issues, in contrast to the instant grievances which raised nine specific issues; (3) the 1989 grievances required the interpretation of different contract language; and (4) the prior arbitrator never reached the merits of the grievances. The Union asserts that the doctrine of laches is not applicable because there was no unreasonable or inexcusable delay in filing the instant grievances and the Agency has presented no evidence of its inability to defend against the instant grievances.

Finally, the Union claims that the Arbitrator's award misapplies the Back Pay Act, which, according to the Union does not specify a limitations period. The Union argues for a 6-year statute of limitations.

b. Agency's Opposition

The Agency defends the Arbitrator's award, asserting that he did not rely on res judicata or laches, but that he found that violations occurring prior to the 1993-1994 School year were not timely initiated under Article 18, Section 11 of the parties' agreement. App. at part 10. According to the Agency, an arbitrator's determination of the timeliness of a grievance is not subject to challenge. The Agency also asserts that, as BIA contract teachers are employed under a 10-month contract that is subject to renewal prior to the beginning of a school year, the grievances could be retroactive only to the beginning of the 1993-94 school year. Finally, the Agency argues that employees are entitled to back pay only to the extent that grievances are filed within the time limits of the parties' agreement.

2. Analysis and Conclusions

An arbitrator's determination of the procedural arbitrability of a grievance is subject to challenge only on grounds other than those that directly challenge the procedural arbitrability determination. See American Federation of Government Employees, Local 2921 and U.S. Department of the Army, Army and Air Force Exchange Service, Dallas, Texas, 50 FLRA 184, 185-86 (1995). The Authority's decision in Puget Sound Naval Shipyard, on which the Union relies, is not to the contrary. That decision also refused, on similar grounds, to review an arbitrator's decision concerning the timeliness of a grievance. 46 FLRA at 1333.

The Union's claim that the Arbitrator improperly applied the agreement's provisions concerning the time limit to file grievances directly challenge the Arbitrator's determination of procedural arbitrability. Consistent with Authority precedent, the Arbitrator's determination that actions prior to the 1993-1994 school year were untimely is not reviewable. Accordingly, the Union's exception provides no ground on which to find this portion of the Award to be deficient.

D. The Agency Has Not Established That the Arbitrator Erred in Holding That It Had Improperly Implemented the Annual Salary Provisions of the 1988 Amendments

1. Positions of the Parties

a. Agency's Exception

The Agency excepts to the Arbitrator's conclusion that it improperly bases teacher pay for each school year on the DoDDS pay scale in effect on June 1 prior to the beginning of the school year. The Agency argues that 25 U.S.C. § 2012(h)(1)(B) permits it to deviate from the pay practice of DoDDS, because the term "applicable" in the requirement that it pay teachers "at the rates of basic compensation applicable (on April 28, 1988 and thereafter)" implies that the Agency can pick the rate that is "appropriate or relevant." Agency Exceptions at 5 (emphasis in original).

Arguing that its interpretation should not be overturned even if the 1988 Amendments are susceptible to a different interpretation, the Agency notes that the Arbitrator found that the Agency's interpretation "'although incorrect in two respects, was not patently unreasonably discriminatory, or without foundation.'" Agency Exceptions at 3-4, citing Award at 48. The Agency relies on Chevron, USA v. Natural Resources Defense Council, 467 U.S. 837 (1984)(Chevron) and Udall v. Tallman, 380 U.S. 1 (1964). The Agency claims further that the legislative history of the statute establishes that Congress intended the Agency to have discretion to set salaries for BIA teachers, including the right to retain its administrative practices of making pay schedules effective only at the beginning of a school year with no retroactivity.

The Agency also argues that the Arbitrator improperly rejected the Agency's interpretation of the 1988 Amendments contained in its regulation, 25 C.F.R. § 38.6(c). According to the Agency, Congress did not object to the Agency's interpretation when this regulation was submitted to it for review, as required by the 1988 Amendments. The Agency claims that Congress' silence means that Congress consented to the Agency's interpretation. The Agency also notes that Congress amended 25 U.S.C. § 2012 in 1994 without changing the Agency's method of establishing BIA pay rates.

Finally, the Agency relies on the settlement of a lawsuit with another union, the National Federation of Federal Employees (NFFE), concerning the Agency's implementation of the 1988 Amendments. According to the Agency, the settlement provided that the annual salary adjustment for BIA teachers would not include a lump sum adjustment retroactive to the start of the school year. The Agency states that NFFE actively participated in the passage of the 1988 Amendments and understood that such amendments did not require a lump sum retroactive salary adjustment for BIA teachers.

b. Union's Opposition

The Union argues that the clear wording of the 1988 Amendments requires BIA and DoDDS salaries to be equal, relying on Chevron, 476 U.S. at 842; and March v. United States, 506 F.2d 1306 (D.C. Cir. 1974)(March). Further, according to the Union, the legislative history of the 1988 Amendments indicates that BIA wage rates were intended to be equal to DoDDS wage rates. The Union also asserts that Congress is presumed to be aware of the judicial interpretations of the DoDDS Statute, including March, that the Agency has chosen not to follow. The Union also claims that the Agency is not entitled to deference in its interpretation of the 1988 Amendments, because the Chevron standard of review of agency statutory construction requires that clear congressional intent be followed and because this statute is clear.

The Union disputes the Agency's reliance on 25 C.F.R. § 38.6(c). The Union argues that such regulations should not be given much weight because the Office of Personnel Management, not the Agency, has expertise on such personnel matters. In addition, the Union contends that, as these regulations are inconsistent with the clear wording of the 1988 Amendments, they are not entitled to deference. The Union also claims that Congress' failure to amend 25 U.S.C. § 2012(h) after the Agency promulgated its regulation is not persuasive, because there is no evidence that Congress ever considered the regulations. Moreover, the Union asserts that, as the statutory wording is clear, under the Chevron test it is unnecessary to analyze the Agency's regulations. Finally, the Union claims that the settlement agreement between NFFE and the Agency is irrelevant, because there is no precedent for holding that a settlement agreement may be used as a basis for interpreting legislation.

2. Analysis and Conclusions

a. Standard of Review

The Agency asserts that the Arbitrator's award is contrary to law, because it disregards the Agency's interpretation of the 1988 Amendments. 5 C.F.R. § 2425.3(a)(1). Questions of law raised by the award and the Agency's exception must be reviewed de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (Internal Revenue Service). This standard also governs our analysis of the issues raised in parts E, F, and G of this decision, and the standard will not be repeated in those parts.

As both parties agree, the proper framework for the Authority to review an agency's interpretation of its own organic statute is set out in Chevron, 467 U.S. 837, which describes the standard that the Federal Courts use to review agency interpretations of statutes. The D.C. Circuit has stated that the FLRA "must grant an agency the same deference to its interpretation of an authorizing statute that we would." General Services Administration v. FLRA, 86 F.3d 1185, 1187 (D.C. Cir. 1996).

Under Chevron, the decision-maker first must determine whether Congress has spoken directly to the question at issue. "If the intent of Congress is clear, that is the end of the matter." Chevron, 467 U.S. at 842-43. If, however, Congress has not spoken directly to the question and has left a "gap," an agency's interpretation of a statutory scheme that it is entrusted to administer is accorded considerable weight. In these circumstances the decision-maker must defer to the Agency's interpretation if it is "based on a permissible construction of the statute." Id. at 843.

b. The Statute Requires That BIA Salaries be Adjusted in the Same Manner as DoDDS Salaries

Our interpretation of the 1988 Amendments begins with the operative words of the statute, that the Secretary,

shall establish . . . the rates of basic compensation, or annual salary rates, for the positions of teachers and counselors . . . at the rates of basic compensation applicable (on the date of enactment of such amendments and thereafter) to comparable positions in overseas schools [covered by the DoDDS Statute]. . . ."

25 U.S.C. § 2012(h)(1)(B)(emphasis added).

As the Supreme Court recently explained, in construing statutes "[w]e do not start from the premise that the language is imprecise. Instead, we assume that in drafting this legislation, Congress said what it meant." U.S. v. LaBonte, 117 S. Ct. 1673, 1677 (1997). On its face, the phrase "establish . . . at the rates" requires that one salary rate be the same rate as another salary rate. It is evident that two rates are not the same where the second rate is set at an earlier version of the first rate, rather than the contemporaneous version. We do not read the statutory language as allowing for the 1-year lag in annual rate adjustments BIA has imposed. Rather, a natural reading of the phrase is that the rates are the same at the same time. Further, the reference to the DoDDS rate in the 1988 Amendments is to the date of enactment "and thereafter," which implies that there will be later adjustments to the BIA rates.

Contrary to the Agency's argument, the term "applicable" does not create an ambiguity in the statute. That term refers to DoDDS positions and simply requires that rates be used that are "applicable" to those positions. According to Webster's New World Dictionary, Third College Ed. (1988) "applicable" means "that can be applied; appropriate" or "relevant." The "rates" that "can be applied" or that are "relevant" for the DoDDS positions are set by the DoDDS Statute. That statute does not permit discretion in its application, see March, 506 F.2d at 1315, and its incorporation into the BIA statute does not imply that discretion is granted to BIA.

The Agency also asserts that Congress "demonstrated unequivocally" that it did not desire that BIA rates be "equal to the rates of overseas teachers in a temporal sense" by using the phrase "establish . . . at the rate" in the 1988 Amendments, rather than the phrase "equal to," which is used in the DoDDS Statute. Agency Exceptions at 18. However, the language in the 1988 Amendments is not less "temporal" than the language in the DoDDS Statute and the Agency has provided no reason to support its assertion that Congress chose different statutory language to create a temporal distinction.

Further, we do not understand the use of the phrase "and thereafter" in the reference to DoDDS rates to imply that these rates must apply to the "following school year," as the Agency asserts. Rather, as we have noted, this term appears to be a simple recognition that the DoDDS rates are, in fact, subject to adjustment and should not be adopted as of a particular time. In sum, we conclude that the 1988 Amendments indicate that BIA teacher salaries are to be set at the DoDDS rates and that BIA pay must include the adjustments made by DoDDS.

The legislative history of the 1988 Amendments is fully consistent with this reading of the law. The Committee Report provides, in full, that,

The Senate amendment, but not the House bill, amends the rate provision of the [BIA's] education personnel section to require that salaries paid shall be comparable to teachers of similar professional training and experience serving comparable students in comparable public schools, with certain adjustments.

The House recedes with an amendment which requires the Secretary to either 1) use the overseas pay schedules used by the Department of Defense, or 2) negotiate with the exclusive collective bargaining agent of the employees. Unless the Secretary chooses to negotiate within the allotted time, the [DoDDS] pay schedules . . . would be automatically effective. Changes would be distributed equally over a three-year "phase-in" period . . . .

The Conferees wish to make it clear that this provision applies to setting wage rates. The [BIA] is to retain its administrative practices which relate to . . . the setting of initial wages, and other issues, using merit, education, experience and length of service.

H.Rep. No. 567, 100th Cong., 2d Sess. 405 (1988), reprinted in 1988 U.S.C.C.A.N. 101, 345 (emphasis added). This statement that BIA is "required" to "use" the DoDDS schedules and that these rates "would be automatically effective" mandates that the Agency simply adopt the pay rates of DoDDS, with whatever adjustment criteria apply.

The Committee's statement in the third paragraph quoted above -- that BIA would "retain its administrative practices" -- comports fully with the statutory language. Thus, the statute requires equivalence of annual salary rates, but not of other practices. In fact, this lack of required equivalence in practices other than salary rates may explain why the Committee did not use the exact same language in the 1988 Amendments as was used in the DoDDS Statute.

The Agency's assertion that the term "wages," as used in the third paragraph of the Conference Report excerpt, is broader than the term "wage rates," as used in that same paragraph, is not convincing. The term actually used in the Report is not "wages," as argued by the Agency, but "initial wages," a much narrower concept. Read in its entirety, the sentence the Agency refers to explains that wage rates are set at DoDDS rates, but that BIA can determine where "initial wages," e.g. starting salaries, will fall on the scale. This does not provide evidence of congressional intent that BIA not follow DoDDS wage scales during each year. Similarly, we do not agree with the Agency's strained reading of the Report's direction that it "use" the DoDDS schedule as implying that BIA has discretion concerning how the schedule is to be used.

In addition to this legislative history, the recently enacted 1996 Appropriations Act provides support for our construction of the 1988 Amendments. See supra at 3. This provision puts in place the position BIA asserts here, that BIA teachers' salary rates are based on DoDDS rates, but that the rates "become effective with the start of the next academic year" and are not "retroactive." Pub. L. 104-204, 110 stat 1321-171. Significantly, however, Congress put this direction in place "notwithstanding 25 U.S.C. § 2012(h)(1)(B)." This at least implies that the meaning of the statutory section prior to the 1996 amendment, which is the version we construe here, dictates that changes in DoDDS rates are effective immediately for BIA employees.

Although we reject the Agency's construction of the 1988 Amendments, we do not accept the Union's argument that this result is mandated by the Court of Appeals decision in March, 506 F.2d 1306. As the Agency has noted, March construed the specific language of the DoDDS Statute, but the language used by Congress in the 1988 Amendments is different from the standard in the DoDDS Statute ("equal to," rather than "establish . . . at the rates"). Nevertheless, the Court's reasoning in March, rejecting the government's similar argument that it could use a lagging pay scale, is analogous and persuasive. 506 F.2d at 1315. The Court held that,

the statutory language does not expressly designate the stateside salary year to be utilized in applications of the statutory formula. . . [Even so,] words in a statute will be read according to their common usage, absent a contrary indication. Surely the term 'equal to,' as it is commonly used and understood, means equivalent to a present component, rather than past or future.

Id. (4) We find that the term "establish . . . at the rate" has a similar "common usage," which would not allow it to be construed as "establish . . . at last year's rate."

c. The Agency Regulation Does Not Affect the Proper Construction of the 1988 Amendments

The Agency asserts that the Authority is required to grant deference to the regulation that the Agency promulgated when it implemented the 1988 Amendments. 25 C.F.R. § 38.6(c). That regulation provides, in pertinent part, that the DoDDS schedule used as a basis for setting the salary rates of BIA teachers "shall be the current published schedule for the school year beginning on or after July 1 of each year." Id. (emphasis added).

Under the first prong of the Chevron standard, the decision-maker determines whether the statute expresses Congress' intent, without deferring to the Agency's interpretation of the law. Id., 467 U.S. at 843. Despite any discretion that Congress granted to an agency, if its interpretation is "at odds with" the statutory language, "it must give way." U.S. v. LaBonte, 117 S. Ct. at 1677. The Agency's regulation does not, therefore, affect our responsibility to interpret the statutory language before us.

In any event, even if the statute did not demonstrate congressional intent, we do not find that the regulation provides any assistance in construing the statute. According to the Agency's explanation on issuing this regulation, the 1988 Amendments required that the Agency "adopt for teachers . . . pay rates established under the" DoDDS Statute. The amended regulation simply "acknowledg[ed] the adoption of these pay rates[.]" 54 Fed. Reg. 46373 (Nov. 3, 1989). There is nothing in this explanation that reveals that the Agency was exercising discretion not to fully adopt the DoDDS pay setting practice.

Further, BIA's regulation does not speak directly to the issue of whether or not the DoDDS pay adjustments will be complied with. The phrase "current published schedule" in the regulation could incorporate changing DoDDS schedules. The phrase "on or after July one of each year" could imply that the schedule for a fixed time is used, but the term "after" implies that a later time may be reflected. Thus, even if its regulation were entitled to deference in this context, we do not find that this regulation expresses the Agency's construction of the statute with any clarity.

The Agency also relies on the fact that Congress did not object to the Agency's regulations as support for its construction of the law. However, the Agency presents no evidence that Congress actually considered these issues during the time period at issue. A lack of congressional action under these circumstance is not convincing evidence of congressional intent. See Bob Jones University v. United States, 461 U.S. 574, 600 (1983); Mississippi Poultry Association, Inc. v. Madigan, 992 F.2d 1359, 1364-65 (5th Cir. 1993); American Federation of Labor and Congress of Industrial Organizations v. Donovan, 757 F.2d 330, 344, n.11 (D.C. Cir. 1985). In any event, as we indicated above, supra at part D.2.b., the subsequently enacted 1996 Appropriation Act raises the converse implication that Congress interprets Section 2012 as requiring contemporaneous pay adjustments.

Finally, the Agency's reliance on the settlement agreement between NFFE and the Agency, to the effect that the Agency would implement salary schedules prospectively, is misplaced. The relevant inquiry here is congressional intent, not the intent of parties governed by what Congress enacts. The Agency has provided no support, and none is apparent, for the proposition that this settlement should affect the construction of the 1988 Amendments.

E. The Arbitrator Erred in Overturning the Agency's Construction of the Leave Provision of the 1988 Amendments

1. Statutory and Factual Background

The issue addressed in this part of our decision concerns the leave rights of status quo employees who had maintained civil service status from 1978 to 1988 and then converted to DoDDS-contract status after the 1988 Amendments were passed. See supra, at 2. The leave rights of these employees must be understood in contrast to the rights of contract employees hired after 1978. The undisputed rights of the two distinct classes of employees prior to the 1988 Amendments were as follows:

1. Status quo employees were covered by the general civil service system and were entitled to 8 hours of leave per pay period. The school year spans 21-22 pay periods, resulting in 21-22 days of annual leave. There were 16-17 school holidays (Thanksgiving, Christmas, spring break) that were unpaid days. In order to receive a full paycheck during school holidays, employees used annual leave.

2. Contract employees received 5 "personal days" each year, rather than annual leave. They were paid for school holidays, because their annual salaries were prorated for each pay period, rather than being paid on a daily basis.

The result of these two systems was that, prior to 1988, the two groups of employees received approximately the same number of paid leave days per year.(5)

The status quo employees who decided to convert to contract status after the passage of the 1988 Amendments, as permitted by Section 2012(h)(1)(E), are entitled to compensation under the DoDDS Statute and leave under Title V. This overlapping coverage creates confusion, however, because, under the DoDDS compensation scheme, school holidays are paid days off. Thus, if the converting employees receive their prior annual leave in addition to the new paid school holidays, then each employee would receive approximately 15 extra paid days off a year, compared to the pre-conversion system. However, if employees are required to overlap annual leave and paid school holidays, as the Agency requires, then the status quo employees who converted under subsection 2012(h)(1)(E) receive approximately the same number of paid days off as they earned prior to the 1988 Amendments.

2. Positions of the Parties

a. Agency's Exceptions

The Agency argues that, although the 1988 Amendments provided that teachers who subsequently converted from GS status to contract status would continue to maintain their GS annual leave status, nothing in the 1988 Amendments addressed the use of annual leave by such teachers. The Agency maintains that because the 1988 Amendments did not address when employees may use annual leave, the Agency's policy of requiring that annual leave overlap school vacations does not violate the law. The Agency also claims that Title 5 gives it the authority to mandate when annual leave is used, pursuant to 5 U.S.C. § 6302(d).

The Agency also contends that the Arbitrator's conclusion that the Agency violated 25 U.S.C. § 2012 by requiring contract teachers to use annual leave during school vacations is based on a nonfact. 5 C.F.R. § 2425.3(a)(2). The Agency argues that, prior to 1988, it required teachers to use annual leave during school vacations and did not permit them to go without pay for these days, saving annual leave for another occasion. In support of this claim, the Agency points to the testimony of one union witness at the hearing.

b. Union's Opposition

The Union contends that the Agency did not assert before the Arbitrator that it may mandate when leave is used under 5 U.S.C. § 6302(d), and that this assertion cannot be raised in an exception. In addition, the Union claims that 5 U.S.C. § 6302(d) does not grant the Agency discretion to make employees take leave whenever the Agency desires.

According to the Union, the requirement that contract teachers who converted from GS status take annual leave during school vacations is contrary to the mandate of 25 U.S.C. § 2012 that such teachers retain the leave policy in existence before they converted. In this regard, the Union claims that testimony established that the Agency changed its policy and is now requiring contract teachers to take annual leave on school vacations, when prior to 1988 they could decide not to take leave for these vacations, with the result that they would not be paid for these days and would save their leave for another occasion.

3. Analysis and Conclusions

a. The Agency Has Not Supported Its Claim That the Award is Based on a Nonfact

To establish that an award is based on a nonfact, the excepting party must demonstrate that a central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. U.S. Department of the Air Force, Lowry Air Force Base, Denver Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593 (1993). A party may not raise nonfact allegations concerning a matter that was disputed below. U.S. Department of the Interior, Bureau of Mines, Pittsburgh Research Center and American Federation of Government Employees, Local 1916, 53 FLRA 34, 40 (1997).

The factual issue disputed by the Agency is whether, prior to the 1988 Amendments, status quo employees had a choice of either using annual leave during school holidays or of not using this leave, not being paid for school holidays, and using the annual leave at a later time, such as the unpaid summer break. The Agency asserts that status quo employees did not have this choice and the Arbitrator found that they did. It was the lack of this choice for employees that caused the Arbitrator to find that the Agency's practice was contrary to the 1988 Amendments, because employee leave use was adversely "affected." 25 U.S.C. § 2012(h)(1)(E)(iii).

To establish its factual argument, the Agency relies on the testimony of a Union witness to establish that status quo employees were required to take leave during school vacation days prior to conversion to contract status. A review of this testimony reveals, however, that the employee testified only that status quo employees were required to take leave to be paid for this time. The central point at issue, whether the employees could choose to not use leave and not be paid, is not addressed by the testimony. Thus, the Agency has not established its burden of proving that the fact at issue is erroneous. As such, the Agency has not established that the award is based on a nonfact.

b. The Agency is Entitled to Deference in Its Construction of This Ambiguous Statute

We analyze this issue utilizing the same framework we applied to the Agency's interpretation of its statutory obligation to establish employee pay rates according to the DoDDS Statute. Supra, Part D. To the extent that resolving the Agency's exception turns on the construction of the BIA Statute, we will enforce clear congressional intent and defer to the Agency's permissible constructions where the result is not dictated by the statute and the Agency has filled in a "gap." See Chevron, 467 U.S. at 842-43.

The operative statutory language of 25 U.S.C. § 2012(h)(1)(E)(ii) and (iii) provides that employees may "make an irrevocable election to have the[ir] basic compensation rate or annual salary" set under the DoDDS system, but that this "shall not affect the application to the individual of the same . . . leave system" that applied before the election to convert.

Applying the first prong of the Chevron test, 467 U.S. at 842, we find that Congress' use of the term "the same . . . leave system" in Subsection 2012(h)(1)(E)(iii) does not unambiguously express its intent. In the prior Subsection, (E)(ii), the statute permits employees to convert to a compensation system that grants them 15 paid days off that they did not receive under the prior system. No explanation is given as to how these paid holidays relate to the annual leave days that Subsection iii mandates must be "the same" as prior to conversion. Because of this gap, it is not possible to say with any certainty what the "same . . . leave system" means in this regard.

Because the validity of the Agency's statutory interpretation cannot be determined under the first prong of the Chevron test, we turn to the second inquiry, whether the Agency's interpretation is based on a "permissible construction of the statute." 467 U.S. at 843. The Agency's construction of the statute begins with its assertion that Section 2012(h)(1)(E) does not address when employees may use annual leave and that its policy of requiring the use of annual leave for school holidays therefore does not violate the statute. The Agency also relies on 5 U.S.C. § 6302(d), which provides that employees may take leave whenever the agency "prescribes." In this regard, agencies have been found to have the authority to require annual leave be taken where "group dismissal" is necessary. National Association of Government Employees, Local R7-72 and U.S. Department of the Army, Rock Island Arsenal, Rock Island, Illinois, 42 FLRA 1019, 1025 (1991), citing FPM chapter 610-10, subchapter 3-6 (June 30, 1969).(6)

The Agency also relies on its past practice of requiring leave be used for school holidays. While we have rejected the Agency's argument that the Arbitrator erred in concluding it required employees to take leave on these days, there is no disagreement that, at a minimum, employees routinely did take leave for these days, and that it was necessary for them to choose to take leave in order to be paid for school holidays.

Taken together, this support for the Agency's position indicates that it is a "permissible construction" of the statute. Moreover, no other construction mandated by the statute has been offered.

We recognize the Agency's construction of this statutory provision results in a leave system that is less desirable for these employees, because it has less flexibility in leave usage. In this regard, we note that we find only that the leave system in use is a "permissible" construction of the statute, not that it is the only permissible construction. The Agency has the discretion to construe the statute differently and, as the Arbitrator noted, the parties "have the option of negotiating changes to the leave provisions in the Agreement." Award at 45.(7)

F. The Arbitrator Properly Held That the Agency Was Not Required to Adopt DoDDS' Practices of a 190 Day School Year, a Six-and-a-Half Hour Day, and up to 10 Years of Initial Service Credit for New Employees

1. Position of the Parties

a. Union's Exceptions

The Union claims that the 1988 Amendments require equality between BIA pay practices and DoDDS pay practices. The Union objects that three of the Agency's pay practices diverge from the practices followed by DoDDS. The first practice is that DoDDS computes daily and hourly salaries based on a 190-day school year and does not reduce salaries if the school year is reduced, while the Agency computes daily and hourly salaries based on a 199-day school year and does reduce salaries. The second practice is the Agency's use of an eight-hour work day, as compared to the six-and-a-half hour work day at DoDDS. The third practice is the Agency's limit of 5 years on service credit for previous experience in setting initial salaries, compared to a limit of 10 years at DoDDS.

With respect to the first issue, the Union notes that the additional 9 days in the school year are not work days, but the 9 federal holidays that Agency teachers are paid pursuant to 5 U.S.C. § 6103. The Union argues that, as BIA teachers are entitled to be paid for 9 Federal holidays,(8) the Agency's establishment of a 199-day school year deprives BIA teachers of pay for those 9 Federal holidays and violates 5 U.S.C. § 6103.

With respect to the second issue, the Union argues that, by establishing an eight-hour school day instead of using the six-and-a-half hour school day that DoDDS has established, the Agency has violated the 1988 Amendments, which require the length of the BIA school day to be equal to the length of the DoDDS school day. The Union claims that, despite the requirement of 5 U.S.C. § 6101 that employees work an eight-hour day and a 40-hour week, the Agency schedules teachers to work less than 8 hours each day and less than 40 hours each week and then pays teachers only for the hours actually worked.

With respect to the third issue, the Union contends that the amount of prior teaching experience with which a new employee is credited determines the teacher's placement on the salary schedule and, thereby, determines the amount of salary the teacher will receive. According to the Union, this is an element of basic compensation that must be equal between DoDDS and BIA. The Union claims that the Conference Committee's statement that the Agency "is to retain its administrative practices which relate to promotions, the setting of initial wages and other issues" does not mean that the Agency may legally grant teachers only five years of prior teaching experience. Rather, the Union argues that this statement must be read in conformity with the "greater intent and the necessary implication of the entire legislation[,]" which requires equality between the pay practices of DoDDS and the Agency. Union Exception at 56.

b. Agency's Opposition

The Agency contends that the differences in the length of school year and school day between the DoDDS system and the BIA system result from the fact that DoDDS teachers, but not BIA teachers, are exempt from the provisions of Title 5 governing work schedules and payment of holiday pay. According to the Agency, nothing in the 1988 Amendments requires the Agency to adopt every element of the DoDDS pay system and the Agency has harmonized the various provisions of law applying to BIA teachers in a reasonable and permissible manner.

With respect to the issue of initial service credit, the Agency argues that nothing in the 1988 amendments requires the Agency to adopt the DoDDS practice of recognizing up to 10 years of prior teaching experience. The Agency contends that the Conference Committee's statement indicates that the Agency may continue to adhere to its pre-1988 policy of granting only 5 year's teaching experience credit.

2. Analysis and Conclusions

Despite the Union's insistence that BIA must incorporate the three DoDDS practices, the 1988 Amendments require only that the "annual salary rates" for BIA and DoDDS employees be the same. 25 U.S.C. § 2012(h)(1)(B). There is nothing in the statute that speaks to equality of school years, daily rates of pay, hours in a day, or initial service credit.

BIA teachers are governed by several provisions of Title 5 that do not apply to DoDDS teachers. These provisions necessarily result in different working conditions and compensation. The requirements in Title V that Federal holidays be considered part of the work year, and that employees work a 40 hour week, are among the requirements that result in such differences. 5 U.S.C. §§ 6101, 6103.

The 1988 Amendments do not require equality in any respect other than annual salary rates, and provide no statutory basis for the Union's claim that these other compensation issues must be equalized. With respect to the first issue, the Agency does not disregard the 1988 Amendments in counting federal holidays as part of the work year; this practice is expressly mandated by Title V. With respect to the second issue, the 8 hour day, the Agency simply applies 5 U.S.C. § 6101 by constructing schedules based on a 40 hour week.

With respect to the third issue, concerning service credit for new employees, there is nothing in the 1988 Amendments that mandates equality of crediting practices. In addition, the Conference Committee Report is quite specific in its explanation that the Agency "is to retain its administrative practices which relate to . . . the setting of initial wages, and . . . other issues, using . . . length of service." Conference Report at 345. Contrary to the Union's argument, there is no inconsistency in interpreting the Report as requiring the Agency to follow the DoDDS salary schedule, but reserving to the Agency the authority to determine initial placement of employees on the schedule.

In sum, the Arbitrator's decision refusing to require BIA to adopt these DoDDS practices is not deficient. Except as the BIA Statute dictates a different practice, the Agency is bound to follow the requirements of Title 5 that apply to these employees and is free to use its administrative practices where Title 5 does not apply.

G. The Arbitrator Improperly Denied Employees Interest on the Back Pay Awarded

1. Positions of the Parties

The Union objects to the Arbitrator's refusal to grant interest on the award of back pay to affected employees. According to the Union, the Back Pay Act mandates that interest be paid where an unjustified or unwarranted personnel action results in the reduction of pay. Brown v. Secretary of the Army, 918 F.2d 214 (D.C. Cir. 1990). The Agency did not respond to this Union argument.

2. Analysis and Conclusion

Under the Back Pay Act, an employee who is found to have been subjected to an unwarranted personnel action that has resulted in a withdrawal or reduction in compensation is entitled to interest on any back pay award. 5 U.S.C. § 5596(b); see National Border Patrol Council, Local 2913 and U.S. Department of Justice, Immigration and Naturalization Service Border Patrol, 48 FLRA 657 (1993). As we have sustained the portion of the award requiring the Agency to reimburse affected teachers for pay adjustments that they did not receive, the award must be modified to include the payment of interest on the back pay award.(9)

V. Decision

The Award is modified to delete the award of back pay for annual leave and to incorporate an award of interest on the back pay awarded. All other exceptions filed by the parties are denied.

APPENDIX

1. The BIA Statute, 25 U.S.C. § 2012, as enacted by Public Law 95-561 (1978), provides, in pertinent part, as follows:

§ 2012. Education personnel

(a) Nonapplicability to educators or education positions of Federal statutory provisions relating to leave, pay, classification, appointment, etc., of civil service employees; effective date

(1) Chapter 51, subchapter III of chapter 53, and chapter 63 of Title 5, relating to leave, pay, and classification, and the sections relating to the appointment, promotion and removal of civil service employees, shall not apply to educators or to education positions (as defined in subsection (n) of this section).

(2) Paragraph (1) shall take effect one year from November 1, 1978.

(b) Regulations implementing requirements; scope of regulations

Not later than the effective date of subsection (a)(2) of this section, the Secretary shall prescribe regulations to carry out this section. Such regulations shall govern--

(1) the establishment of education positions,

(2) the establishment of qualifications for educators,

(3) the fixing of basic compensation for educators and education positions,

(4) the appointment of educators,

(5) the discharge of educators,

(6) the entitlement of educators to compensation,

(7) the payment of compensation to educators,

(8) the conditions of employment of educators,

(9) the length of the school year applicable to education positions described in subsection (n)(1)(A) of this section,

(10) the leave system for educators, and

(11) such other matters as may be appropriate.

. . . .

(h) Rates of basic compensation or annual salary for educators and education positions; cost-of-living allowances for educators employed in education positions in Alaska; post differential pay

(1) the Secretary shall fix the basic compensation or annual salary rate for educators and education positions at rates comparable to the rates in effect under the General Schedule for individuals with comparable qualifications, and holding comparable positions, to whom chapter 51 of Title 5 is applicable.

. . . .

(n) Definitions

For the purpose of this section--

(1) The term "education position" means a position in the Bureau the duties and responsibilities of which--

(A) are performed on a school-year basis principally in a Bureau school and involve--

(i) classroom or other instruction or the supervision or direction of classroom or other instruction;

(ii) any activity (other than teaching) which requires academic credits in educational theory and practice equal to the academic credits in educational theory and practice required for a bachelor's degree in education from an accredited institution of higher learning; or

(iii) any activity in or related to the field of education notwithstanding that academic credits in educational theory and practice are not a formal requirement for the conduct of such activity; or

(B) are performed at the agency level of the Bureau and involve the implementation of education-related programs other than the position of agency superintendent for education.

(2) The term "educator" means an individual whose services are required, or who is employed, in an education position.

(o) Covered individuals; election of coverage

(1) This section shall apply with respect to any individual hired after the effective date of subsection (a)(2) of this section for employment in an education position and to the position in which such individual is employed. Subject to paragraph (2), the enactment of this Act shall not affect the continued employment of any individual employed immediately before the effective date of subsection (a)(2) of this section in an education position, or such individual's right to receive the compensation attached to such position.

(2) Any individual employed in an education position immediately before the effective date of subsection (a)(2) of this section may, within five years of November 1, 1978, make an irrevocable election to be covered under the provisions of this section.

2. The 1988 Amendments, 25 U.S.C. § 2012(h), as amended by Public Law 100-297 (1988), provides, in pertinent part, as follows:

(h) Rates of basic compensation or annual salary for educators and education positions; cost-of-living allowances for educators employed in education positions in Alaska; post differential pay

(1)(A) Except as otherwise provided in this section, the Secretary shall fix the basic compensation or annual salary rate for educators and education positions at rates comparable to the rates in effect under the General Schedule for individuals with comparable qualifications, and holding comparable positions, to whom chapter 51 of Title 5 is applicable or on the basis of the Federal Wage System schedule in effect for the locality.

(B) By no later than October 28, 1988, the Secretary shall establish, for contracts for the 1991-1992 academic year, and thereafter, the rates of basic compensation, or annual salary rates, for the positions of teachers and counselors (including dormitory counselors and home-living counselors) at the rates of basic compensation applicable (on April 28, 1988, and thereafter) to comparable positions in the overseas schools under the Defense Department Overseas Teachers Pay and Personnel Practices Act [20 U.S.C. § 901 et seq.], unless the Secretary establishes such rates within such 6-month period through collective bargaining with the appropriate union representative of the education employees that is recognized by the Bureau.

(C) By no later than October 28, 1988, the Secretary shall establish the rates of basic compensation or annual salary rates for the position of teachers and counselors (including dormitory and home-living counselors)--

(i) for contracts for the 1989-1990 academic year, at rates which reflect one-third of the changes in the rates applicable to such positions on April 28, 1988, that must be made to conform to the rates to the rates established under subparagraph (B) for such positions for contracts for the 1991-1992 academic year,

(ii) for contracts for the 1990-1991 academic year, at rates which reflect two-thirds of such changes.

(D) The establishment of rates of basic compensation and annual salary by the Secretary under subparagraphs (B) and (C) shall not preclude the use of regulations and procedures used by the Bureau before April 28, 1988, in making determinations regarding promotions and advancements through levels of pay that are based on the merit, education, experience, or tenure of the educator.

(E)(I) Except as provided in clause (ii), the establishment of rates of basic compensation and annual salary rates by the Secretary under subparagraphs (B) and (C) shall not affect the continued employment or compensation of an educator who was employed in an education position on October 31, 1979, and who did not make the election under paragraph (2) of subsection (o) of this section.

(ii) Any individual described in clause (I) may, during the 5-year period beginning on the date on which the Secretary establishes rates of basic compensation and annual salary rates under subparagraph (B), makes an irrevocable election to have the basic compensation rates or annual salary rate of such individual determined in accordance with this paragraph.

(iii) If an individual makes the election described in clause (ii), such election shall not affect the application to the individual of the same retirement system and leave system that applies to the individual during the fiscal year preceding the fiscal year in which such election is made, except that the individual must use leave accrued during a contract period by the end of that contract period.

3. Legislative history of Public Law 100-297, provides, in the Conference Committee report contained in H.Rep. No. 567, 100 Cong., 2d Sess. 405 (1988) reprinted in 1988 U.S.C.C.A.N. 101, 345, in pertinent part, as follows:

43. The Senate amendment, but not the House bill, amends the rate provision of the Bureau's education personnel section to require that the salaries paid shall be comparable to teachers of similar professional training and experience serving comparable students in comparable public schools, with certain adjustments.

The House recedes with an amendment which requires the Secretary to either 1) use the overseas pay schedules used by the Department of Defense, or 2) negotiate with the exclusive collective bargaining agent of the employees. Unless the Secretary chooses to negotiate, within the allotted time, the Department of Defense pay schedules (with the given caveats) would be automatically effective. Changes would be distributed equally over a three-year "phase-in" period and there are other administrative provisions relating to election by current employees and furloughs. . . .

The Conferees wish to make it clear that this provision applies to setting wage rates. The Bureau is to retain its administrative practices which relate to promotions, the setting of initial wages, and other issues, using merit, education, experience and length of service. The Conferees specifically intend that Dormitory counselors, also referred to as home-living specialists, come under this provision.

4. 25 U.S.C. § 2018 (1978), as enacted by Public Law 95-561 (1978), provides, in pertinent part, as follows:

§ 2018. Regulations implementing administrative, etc., provisions; applicability; promulgation, submission, and effect.

Regulations required to be adopted under sections 2006 through 2017 of this title shall be deemed rules of general applicability prescribed for the administration of an applicable program for the purposes of section 1232 of Title 20 and shall be promulgated, submitted for congressional review, and take effect in accordance with the provisions of such section.

5. 25 U.S.C. § 2019, as amended by Public Law 100-297 (1988), provides, in pertinent part, as follows:

§ 2019. Regulations implementing administrative, etc., provisions; applicability; promulgation, submission, and effect.

Regulations required to be adopted under sections 2006 through 2018 of this title and any revisions of the standards developed under Section 2001 or 2002 of this title shall be deemed rules of general applicability prescribed for the administration of an applicable program for the purposes of section 1232 of Title 20 and shall be promulgated, submitted for congressional review, and take effect in accordance with the provisions of such section. Such regulations shall contain, immediately following each substantive provisions of such regulations, citations to the particular section or sections of statutory law or other legal authority upon which such provision is based.

6. The DoDDS Statute, 20 U.S.C. § 901 et seq., provides, in pertinent part, as follows:

§ 903. Administration

. . . .

(c) Rates of basic compensation

The Secretary of each military department shall fix the basic compensation for teachers and teaching positions in his military department 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.

7. 5 U.S.C. § 6101(a) provides, in pertinent part, as follows:

§ 6101. Basic 40-hour workweek; work schedules; regulations

. . . .

(2) The head of each Executive agency, . . . shall--

(A) establish a basic administrative workweek of 40 hours for each full-time employee in his organization; and

(B) require that the hours of work within that workweek be performed within a period of not more than 6 of any 7 consecutive days.

(3) Except when the head of an Executive agency, . . . determines that his organization would be seriously handicapped in carrying out its functions or that costs would be substantially increased, he shall provide, with respect to each employee in his organization, that--

(A) assignments to tours of duty are scheduled in advance over periods of not less than 1 week;

(B) the basic 40-hour workweek is scheduled on 5 days, Monday through Friday when possible, and the 2 days outside the basic workweek are consecutive;

(C) the working hours in each day in the basic workweek are the same;

(D) the basic nonovertime workday may not exceed 8 hours;

(E) the occurrence of holidays may not affect the designation of the basic workweek; and

(F) breaks in working hours of more than 1 hour may not be scheduled in a basic workday.

8. 25 C.F.R. § 38.6 provides, in pertinent part, as follows:

. . . .

(c) Schedule of compensation rates for teachers and counselors. The basic compensation for teachers . . . shall be determined in accordance with rates set by the Defense Department Overseas Teachers Pay and Personnel Practices Act. The schedule used shall be the current published schedule for the school year beginning on or after July 1 of each year.

9. Article 13 of the parties' agreement provides as follows:

Section 1. Educator Salaries. Public Law 100-297 allowed the Secretary of the Interior to choose to adopt the Department of Defense Dependent Schools' (DODDS) pay system. As a result of that choice, Educator salaries will be fixed at rates equal to the range of basic compensation for similar positions of a comparable level of duties and responsibilities.

Award at 8.

10. Article 18, Section 11 of the parties' agreement provides, in pertinent part, as follows:

Section 11. Management/Union Grievance Procedures. The Union or Management may file grievances over alleged violations of provisions of the Agreement as follows:

. . . .

B. Step 2. If the Union believes [the Agency] has violated the Agreement, the . . . representative may reduce the matter to writing and file the grievance . . . within 30 days of the incident or of the date which the Union could be reasonably . . . expected to be aware of the matter.

Award at 8.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. Additional statutory background is provided, infra at part III.E.1. as it pertains to the aspect of the award discussed in that Part.

2. Prior to the Improving America's Schools Act of 1994, Public Law 103-382, Section 2012 was codified as Section 2011. The 1994 recodification did not make any substantive changes to the Section. The relevant portions of the BIA Statute and pertinent portions of other relevant statutory, regulatory, and collective bargaining agreement provisions are set forth in the Appendix to this decision. The location of the material in the Appendix is described at the initial citation to a particular source as "App. at part . . . ."

3. The DoDDS practice is undisputed and is described in detail in the Award. DoDDS determines the average urban teacher salary through a survey that is conducted at the beginning of each school year. Once the survey is complete, DoDDS pays its teachers a lump sum equal to the increase that urban teachers received while the survey was being conducted. DoDDS also adjusts its pay scale for the rest of the school