Under § 7103(a)(9) a grievance "means any complaint--(A) by an employee concerning any matter relating to the employment of the employee; (B) by any labor organization concerning any matter relating to the employment of any employee; or (C) by an employee, labor organization, or agency concerning--(I) the effect or interpretation, or a claim of breach, of a collective bargaining agreement; or (ii) any claimed violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions of employment[.]"
In Treasury, Customs Service v. FLRA, 43 F.3d 682 (D.C. Cir. 1994), the court said that the reference to any law, rule, or regulation "can be only interpreted . . . to confine grievances to alleged violations of a statute or regulation that can be said to have been issued for the very purpose of affecting the working conditions of employees--not one that merely incidentally does so."
Section 7121 requires that the collective bargaining agreement (CBA) contain a grievance procedure terminating in final and binding arbitration. The NGP, with a few exceptions involving statutory alternatives (e.g., adverse and performance-based actions), is the exclusive administrative procedure for grievances falling within its coverage. Apart from the matters excluded from the coverage of the NGP by § 7121(c)--e.g., retirement, life and health insurance, classification of positions--the NGP covers those matters specified in the definition of grievance in § 7103(a)(9) (see GRIEVANCE), minus any of those matters that the parties agree to exclude from the NGP. That is, under the FSLMRS program, the parties negotiate to determine what matters to exclude from the procedure rather than what matters it is to include--just the opposite from pre-FSLMRS and private sector practices.
In Carter v. Gibbs, 883 F.2d 1563 (Fed. Cir. 1990), the Federal Circuit held that, because of the exclusivity of the NGP, Fair Labor Standards Act (FLSA) claims covered by the NGP could only be processed under the NGP. In subsequent court decisions it was made clear that it would be assumed that the NGP covered FLSA claims unless the NGP expressly excluded such claims from the NGP's coverage. However, § 7121 was amended in 1994 to provide, among other things, that the reference to "exclusive procedures" be changed to "exclusive administrative procedures," which may result in a reexamination, and perhaps modification, of Carter v. Gibbs.
It should be noted that the scope of the NGP is broader than the scope of bargaining. Although, e.g., a proposal inconsistent with a law or a Governmentwide regulation is nonnegotiable, alleged misapplications of laws or Governmentwide regulations relating to conditions of employment, with a few exceptions and qualifications, can be grieved under the NGP. Regarding grievances alleging misapplication of laws, in Treasury, Customs Service v. FLRA, 43 F.3d 682 (D.C. Cir. 12/30/94), the court held that the NGP can't be used to enforce laws that only incidentally affect employee working conditions. Regarding Governmentwide regulations, in Department of Treasury, IRS v. FLRA, et al, 996 F.2d 1246 (D.C. Cir. 1993), the court held that alleged violations of OMB Circular A-76 can't be grieved under the NGP because the Circular prohibited such grievances.