shaw bransford & roth case law update

FLRA: DOD Violated Educator CBA

The Federal Labor Relations Authority found that the Department of Defense violated its collective-bargaining agreement (CBA) with the educators’ union (the Federal Education Association – Stateside Region) when it refused to credit “plus hours” earned before educators earned a master’s degree when determining employee pay lanes.

As noted in the Authority’s decision, “the [Department of Defense] operates a school system, and the union represents teachers and other professionals in that system.” These educators, unlike most federal employees, “are entitled to negotiate their salaries.” Under the terms of the CBA, employees can attain a certain higher rate of pay only if they obtain a master’s “’degree plus hours’ of academic coursework that were not required to earn that master’s degree.” Those hours of coursework are defined in the CBA as “plus hours.”

The “central issue” of this case concerned the Arbitrator’s interpretation of “plus hours.” At arbitration after the union filed a grievance, the Agency argued that employees should only receive credit for “plus hours” completed after the employee obtained a master’s degree. The Arbitrator disagreed, finding that the agency must consider all relevant “plus hours” in setting salaries, regardless of the timing of those earned hours. The Arbitrator found that the meaning of “degree plus hours” was “clear and unequivocal,” and that “plus” merely meant “more,” without mention of a required chronology for when those hours might be earned.

The agency’s appeal to the Authority contended that the Arbitrator’s finding “exceeded [the Arbitrator’s] authority, failed to draw its essence from the agreement, and was based on a nonfact.” The agency also argued that the award was contrary to law because the Arbitrator “improperly refused to find that the parties had a binding past practice entitling employees to receive credit only for plus horus earned after attaining a degree.”

The Authority found that the Arbitrator did not exceed his authority, did not fail to draw his finding’s essence from the agreement, and did not base his finding on a nonfact. The Authority also observed that prior decisions have held that “arbitrators may not look beyond a collective-bargaining agreement – to extraneous considerations such as past practice – to modify an agreement’s clear and unambiguous terms.” The Authority noted that the Arbitrator found that the agreement’s terms were clear and unambiguous, and that moreover, the union repeatedly challenged the agency’s position on “plus hours.” On that basis, the Authority rejected the agency’s argument that there was a “binding past practice” followed by both parties or followed by one party and not challenged by the other.

However, the Authority found that the Arbitrator failed to meet the Back Pay Act’s requirement that any arbitrator awarding fees must “fully articulate[] a reasoned decision setting forth specific findings…[to show] that the award…was warranted in the interests of justice.”

For the above stated reasons, the Authority denied the agency’s exceptions except for the attorney fee award argument, and remanded the attorney fee issue to the parties for resubmission to the arbitrator, absent settlement.

Read the full decision: United States Department of Defense Education Activity v. Federal Education Association Stateside Region.


This case law update was written by Conor D. Dirks, Associate Attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

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