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Pay & Leave Claim Decisions

Office of Merit Systems Oversight and Effectiveness

Date: May 23, 2002
File Number: [02-0011]
Matter of: [Claimant]

OPM Contact: Deborah Y. McKissick

The claimant is a former military member hired locally overseas, who is requesting reconsideration of his agency's decision regarding his entitlement to receive a living quarters allowance (LQA). We accepted the claim on January 29, 2002 and we received the agency's information on May 21, 2002. For the reasons stated below, we do not have jurisdiction to consider this claim.

The claimant retired from active military duty with the [military] on March 1, 2001 in [country]. The claimant applied for a [position] in [country] with the [agency]. The vacancy announcement was opened from May 16, 2001 through May 30, 2001. He was offered and accepted the position on June 29, 2001. The agency hired the claimant as a "local hire" and made the determination not to authorize payment of LQA during his tour.

Based on the information provided by the claimant's agency, the claimant was and continues to be a member of a bargaining unit, the National Federation of Federal Employees (NFFE), Local 1363, during the time of the claim. The U.S. Court of Appeals for the Federal Circuit has determined that if a person filing a claim was a bargaining unit member during any part of the complaint period, the unit was covered by a CBA, and the agreement did not explicitly exclude the issues being reviewed by OPM from its negotiated grievance procedure (NGP), then the person's administrative avenue of redress is limited to the NGP. Carter v. Gibbs, 909 F.2d 1452, 1545-55 (Fed. Cir. 1990). Therefore, we reviewed the CBA between the United States Forces Korea/Eight United States Army and the National Federation of Federal Employees Local 1363 to determine whether we have jurisdiction or if the negotiated grievance procedure provides the sole administrative remedy to resolve the claim.

Article X, Section 3 of the Agreement between the United States Forces Korea/Eight United States Army and the National Federation of Federal Employees Local 1363, dated January 6, 1998, states:

Section 3. The grievance procedure shall not apply to any grievance concerning -

  1. Any claimed violation relating to Subchapter III of Chapter 73 of the Statute (relating to prohibited political activities);
     
  2. Retirement, life insurance, or health insurance;
     
  3. A suspension of removal for national security reasons;
     
  4. Any examination, certification, or appointment;
     
  5. The classification of any position;
     
  6. An action taken in accordance with the terms of a formal agreement voluntarily entered into by an employee which: (1) assigns the employee from one geographical location to another; or (2) returns an employee from overseas assignment;
     
  7. Any action involving application of reduction in force procedures of the [agency];
     
  8. Career program actions under an [agency];
     
  9. Non-selection for reassignment or promotion from a list of properly rated and ranked candidates;
     
  10. Nomination for awards for employees;
     
  11. Separation of employees serving a probationary or trial period;
     
  12. Work assignments;
     
  13. Assignment of tour of duty;
     
  14. Non-adoption of a suggestion, the size of a suggestion award, disapproval of a quality salary increase, performance award or other kind of honorary or discretionary award;
     
  15. EEO complaints; and
     
  16. Any matter where no personal relief is available.

The issues of your claim were not excluded from the negotiated grievance procedures under the agency's CBA.

OPM cannot take jurisdiction over the claim of Federal employees that are or were subject to a negotiated grievance procedure under a collective bargaining agreement between the employee's agency and labor union, unless that matter is or was specifically excluded from the agreement's grievance procedure. This is because the courts have found that Congress intended that such a grievance procedure is to be the exclusive remedy for matters not excluded from the grievance process. Carter v. Gibbs, 909 F.2d 1452, 1454-55 (Fed. Cir. 1990) (en banc), cert. Denied, 498 U.S. 811 (1990), construing therein the provision in the Civil Service Reform Act codified at 5 U.S.C. § 7121(a). That Act mandates that the grievance procedures in negotiated collective bargaining agreements be the exclusive remedy for matters covered by the agreements. Accord, Paul D. Bills, et al., B260475 (June 13, 1995); Cecil E. Riggs, et al., 71 Comp. Gen. 374 (1992). According, OPM cannot assert jurisdiction over, or issue a decision concerning, this matter.

This settlement is final. No further administrative review is available within the Office of Personnel. Nothing in this settlement limits the claimant's right to bring an action in an appropriate United States Court.

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