Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
Department of Agriculture
El Dorado, California
Robert D. Hendler
Classification and Pay Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
06/08/2015
Date
The claimant seeks to file a compensation claim concerning the position he occupied with the U.S. Forest Service (FS), Department of Agriculture, in El Dorado, California. He asserts he is owed pay for “seventy-two hours of straight time” while he was on intermittent status for two weeks prior to the agency terminating his temporary appointment. We received the claim on December 30, 2014. For the reasons discussed herein, the claim is denied.
Section 7121(a)(1) of title 5, United States Code (U.S.C.), directs that except as provided elsewhere in the statute, the grievance procedures in a negotiated collective bargaining agreement (CBA) shall be the exclusive administrative remedy for resolving matters that fall within the coverage of the CBA. The Court of Appeals for the Federal Circuit has found the plain language of 5 U.S.C. 7121(a)(1) to be clear, and as such, limits the administrative resolution of a Federal employee’s grievance to the negotiated procedures set forth in the CBA. Mudge v. United States, 308 F.3d 1220, 1228 (Fed.Cir. 2002). Further, the Federal Circuit also found that all matters not specifically excluded from the grievance process by the CBA fall within the coverage of the CBA. Id. at 1231. As such, OPM cannot assert jurisdiction over the compensation or leave claims of Federal employees who are or were subject to a negotiated grievance procedure (NGP) under a CBA between the employee’s agency and labor union for any time during the claim period, unless the matter is or was specifically excluded from the CBA’s NGP. See 5 CFR 178.101(b).
Information provided by the claimant (i.e., the Notification of Personnel Action, Standard Form (SF) 50, showing the bargaining unit status in block 37) shows he occupied a bargaining unit position during the period covered by the claim. The Master Agreement between the FS and the National Federation of Federal Employees covering the claimant during his employment with the FS, and in effect during the period of the claim, does not specifically exclude compensation issues from the NGP (Article 9 in the CBA effective October 25, 2010). Therefore, this claim must be construed as covered by the NGP the claimant was subject to during the claim period and OPM has no jurisdiction to adjudicate this claim. The claimant provided a copy of the SF 50 showing he is no longer employed by the FS effective October 3, 2014. As is clear in Muniz v. United States, 972 F.2d 1304 (Fed. Cir. 1992), the fact that the claimant is no longer employed by the FS does not remove the Civil Service Reform Act’s jurisdictional bar for claims covered by the CBA arbitration and grievance procedures that arose during and from his employment with the FS.
The claimant also asserts in his claim request to OPM that he is owed nineteen hours of overtime. As we explained in our January 27, 2015, acceptance letter to the claimant, his overtime claim is covered by the Fair Labor Standards Act and therefore will be addressed under a separate decision since it is excluded from resolution under the CBA’s NGP.
We note the claimant also states the agency’s decision to terminate his appointment in October 2014 was contrary to his “contract” to work and be compensated for 1039 hours and 658 training hours. However, we noted the SF 50 for his appointment, not to exceed May 16, 2015, includes the remark that temporary employees serve under appointment limited to one year or less and are subject to termination at any time. Moreover, it is well established that where a Federal employee holds his or her position by virtue of appointment, any entitlement to compensation must be based solely on the applicable statutes and regulations, and those statutes and regulations do not give rise to an implied-in-fact contract. See Chu v. United States, 773 F.2d 1226, 1229 (Fed. Cir. 1985) (“[A]bsent specific legislation, federal employees derive the benefits and emoluments of their positions from appointment rather than from any contractual or quasi-contractual relationship with the government”; see also Schism v. United States, 316 F.3d 1259, 1275 (Fed. Cir. 2002) (noting that “[f]ederal employees, both military and civilian, serve by appointment, not contract…”)).
This settlement is final. No further administrative review is available within OPM. Nothing in this settlement limits the claimant’s right to bring an action in an appropriate United States court.