[ v26 p362 ]
26:0362(43)AR
The decision of the Authority follows:
26 FLRA No. 43
OVERSEAS FEDERATION OF TEACHERS
Union
and
DEPARTMENT OF DEFENSE DEPENDENTS
SCHOOLS, MEDITERRANEAN REGION
Activity
Case No. 0-AR-1152
DECISION
I. STATEMENT OF THE CASE
This case is before the Authority on exceptions to the award of
Arbitrator Thomas F. Carey filed by the Department of Defense Dependents
Schools (the Agency) on behalf of the Activity under section 7122(a) of
the Federal Service Labor-Management Relations Statute and part 2425 of
the Authority's Rules and Regulations. The Union filed an opposition to
the exceptions.
II. BACKGROUND AND ARBITRATOR'S AWARD
The Arbitrator identified the issue in the grievance before him as
whether the Activity violated the parties' collective bargaining
agreement when management at the Naples High School assigned lunchroom
monitoring duties to teachers.
Article 21, Section 3 of the parties' agreement provides:
Article 21 Hours of Work
Section 3. Lunch Periods. The Employer supports a duty free
lunch period for employees and within available resources will
attempt to provide such a program.
The Union argued that under the agreement and past practice management
was precluded from assigning teachers any lunchroom monitoring duty.
The Arbitrator found that there were two questions to be addressed in
resolving the grievance: (1) whether unit employees were entitled to a
duty-free lunch period under the parties' agreement and/or past
practice; and (2) whether the assignment of lunchroom monitoring duties
to unit employees was violative of the agreement and/or past practice.
As to (1), the Arbitrator determined that the teachers were entitled
to a duty-free lunch period under the "clear and unambiguous language"
of the parties' agreement. The Arbitrator found that the duty-free
lunch was a long-standing practice in the Naples High School and other
dependents schools of the Activity. The Arbitrator also found that the
duty-free lunch provision was a fairly common benefit currently enjoyed
by teachers who formerly were required to have their lunch with students
and are now contractually entitled to their own duty-free lunch time.
The Arbitrator noted that the pertinent provision in the parties'
agreement in this case was conditioned by the phrase "within available
resources," but determined that there was no showing that any
"compelling need" had developed which either reduced available resources
or precluded continuation of the practice of providing a duty-free
lunch. He further found that even assuming that there was a need to
make some change in scheduling at the Naples High School, such a
necessity would not relieve management of its obligation under the
parties' agreement. The Arbitrator concluded that management's failure
to provide a duty-free lunch period for unit employees violated the
parties' agreement.
As to the second question, whether assignment of lunchroom monitoring
duties to unit employees was precluded by the parties' agreement and
past practice, the Arbitrator rejected the Union's contention that unit
employees could not be assigned any lunchroom monitoring duties at any
time. The Arbitrator found that while teachers were entitled to a
duty-free lunch period, Article 21, Section 3 was silent as to whether
they could be assigned monitoring duties at other times and he declined
to read such a requirement into the agreement. The Arbitrator further
found that the assignment of lunchroom duty was consistent with the
teachers' job descriptions. He also found that the parties had
addressed the issue of lunchroom duty in impact and implementation
bargaining and reached agreement that management would solicit
volunteers for such duty. According to the Arbitrator, the parties'
impact and implementation agreement further provided that if sufficient
volunteers were not available and if no other acceptable method of
lunchroom coverage was found, the school principal had the authority to
assign unit employees to monitor student lunchrooms. The Arbitrator
therefore rejected the Union's argument that management violated the
agreement and past practice by assigning teachers to monitoring duties.
As a remedy for the Agency's violation of Article 21, Section 3 of
the parties' agreement by failing to provide a duty-free lunch period
for teachers during the 1985-86 school year, the Arbitrator directed
that: "Teachers who did not have a duty free lunch period shall be
compensated at the contractually established extra compensation rate
(pro rated) for that function of the total teacher work day they
actually were so assigned (not volunteered) to such duty.
III. FIRST EXCEPTION
A. Contentions
In its first exception, the Activity contends that the Arbitrator's
award is contrary to section 7106(a)(2)(B) of the Statute. In support
of this contention, the Activity argues that the Arbitrator's award
interferes with management's right under section 7106(a)(2)(B) to assign
work during the employees' lunch period.
B. Analysis and Conclusion
The Agency correctly states that section 7106(a)(2)(B) of the Statute
reserves to management officials the authority to assign work. However,
we find that the Agency has failed to establish that the Arbitrator's
award in this case violates that right. The Arbitrator determined that
the intent of the parties in agreeing to Article 21, Section 3 was that
the Activity would provide teachers with a duty-free lunch period. His
award does not establish any particular lunch periods for teachers.
Nothing in the award prevents management from scheduling their duty-free
lunch periods so as to ensure that student lunchrooms are monitored by
teachers if necessary. Moreover, the award does not preclude the
discontinuation of lunch periods in all circumstances. For example, the
award does not prohibit discontinuation of a duty-free lunch period in
emergencies within the meaning of section 7106(a)(2)(D) of the Statute.
On the contrary, the Arbitrator clearly provided for the discontinuation
of a duty-free lunch period in circumstances described in the parties'
collective bargaining agreement, that is, based on "available resources"
and in other "compelling need" situations not present here. As the
Union maintains in its opposition to the Agency's exceptions, the
Arbitrator's award in effect provides that where management determines
that it is necessary to assign lunchroom monitoring work to teachers
during the teachers' lunch period, management must compensate them for
such extra-duty assignment under the applicable provision of the duties'
collective bargaining agreement. /1/
We therefore conclude that the award does not violate management's
right to assign work under section 7106(a)(2)(B) of the Statute as the
Agency contends. See American Federation of Government Employees,
AFL-CIO, Local 3511 and Veterans Administration Hospital, San Antonio,
Texas, 12 FLRA 76, 85-87 (1984) (Proposal 29). /2/ In essence, the
Agency's exception constitutes disagreement with the Arbitrator's
interpretation and application of the parties' agreement. It is well
established that such disagreement provides no basis for finding an
award deficient. See, for example, Colorado Air National Guard, Buckley
ANG Base and Association of Civilian Technicians, The Columbine Council,
7 FLRA 3, 5-6 (1981); American Federation of Government Employees,
AFL-CIO, New York-New Jersey Council of District Office Locals, Social
Security Administration and Department of Health and Human Services,
Social Security Administration District Office Operations, 7 FLRA 413,
415-417 (1981).
IV. SECOND EXCEPTION
A. Contentions
In its second exception, the Activity contends that the Arbitrator's
award is contrary to the Back Pay Act, 5 U.S.C. Section 5596. In
support of this contention, the Activity argues that the Arbitrator did
not make the requisite finding that but for an unwarranted or
unjustified personnel action the employees would not have suffered a
reduction or loss in pay, allowance, or differentials.
The Agency further argues that the employees suffered no reduction or
loss in pay. In support of this argument, the Agency points out that
the basic duty day for teachers, which is established in the parties'
negotiated agreement, begins 20 minutes before the start of the first
class and ends 30 minutes after the last class. The Agency maintains
that teachers are paid for that entire time, including their lunch
periods, and are not entitled to extra compensation under Article 25 of
the agreement because lunchroom duty did not occur outside that duty
day.
B. Analysis and Conclusions
It is well established that in order for an award of backpay to be
authorized by the Back Pay Act, the arbitrator must determine that the
aggrieved employee was affected by an unjustified or unwarranted
personnel action, that the personnel action directly resulted in the
withdrawal or reduction of the grievant's pay, allowances or
differentials, and that but for such action the grievant otherwise would
not have suffered the withdrawal or reduction. For example, Department
of Defense Dependents Schools, Panama Region and The Panama Canal
Federation of Teachers, Local 29, 25 FLRA No. 51 (1987), slip op. at
2-3.
In this case, the Arbitrator expressly found that the Activity
violated the parties' agreement by its failure to provide a duty-free
lunch period to teachers. Moreover, the Arbitrator effectively found
that this unwarranted action directly resulted in a loss of pay to which
the affected employees were entitled under the agreement. In that
latter regard, the Arbitrator's award of compensation effectively
provides that teachers who did not volunteer but were assigned to
monitor student lunchroom activities during the teachers' duty-free
lunch periods were entitled to extra compensation for that function
under the parties' negotiated agreement. Contrary to the Agency's
assertion that the affected teachers were not entitled to extra
compensation under Article 25 of the agreement because the lunchroom
monitoring occurred during the basic work day, the Union establishes in
its opposition that teachers are paid additional compensation for a
number of extra-duty assignments performed during their lunch periods,
including serving as sponsors of the National Honor Society, Junior
Class, Senior Class, school newspaper, yearbook and various clubs. /3/
We find that the Agency's argument that teachers are not entitled to
backpay for lunchroom monitoring duties in this case constitutes nothing
more than disagreement with the Arbitrator's interpretation and
application of the parties' agreement. This argument provides no basis
for finding an award deficient under the Statute. We conclude that the
Agency has failed to establish that the Arbitrator's award is contrary
to the Back Pay Act.
V. DECISION
For the above reasons, the Agency's exceptions are denied.
Issued, Washington, D.C., March 20, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) Article 25 of the parties' agreement, which governs extra-duty
assignments, provides in part:
Section 1. Policy. Extra duty assignments of a reimbursable
nature shall be open to all employees. Assignments will be made
on an equitable basis. Compensation will be in accordance with
regulation and established salary schedule.
The Agency notes that DOD Directive 1400.13 also provides for extra
compensation for teachers for certain extra-duty assignments normally
associated with elementary and secondary schools (Agency Exceptions at
9-10).
(2) The proposal in VA Hospital, San Antonio dealt with employees
covered by 5 U.S.C. Section 6101, which pertains to the establishment of
the basic 40-hour workweek for full-time employees. In contrast, the
employees in this case are covered by the Defense Department Overseas
Teachers Pay and Personnel Practices Act, 20 U.S.C. Section 901, et seq.
(3) See Overseas Education Association and Department of Defense
Dependents Schools, 3 FLRA 676 (1980), where an arbitration award of
extra compensation for time spent by teachers in committee meetings was
upheld by the Authority.