02-0005

Office of Merit Systems Oversight and Effectiveness

Date: April 11, 2002
File Number: [02-0005]
Matter of: [Claimant]

OPM Contact: Deborah Y. McKissick

The claimant is an Inspector in the [agency] in [city, state]. We accepted the claim on December 17, 2001 and received the agency administrative report on February 26, 2002. We received a copy of the covered collective bargaining agreement on April 1, 2002. For the reasons stated below, we do not have jurisdiction to consider this claim.

The claimant was an Inspector in [city, state] and paid under the [city's] locality pay rate. In 2001, the claimant was competitively selected for an Inspector position in [city, state] and relocated to the [city] District. The agency set her salary consistent with the position, which is not entitled to a special salary rate. The claimant is requesting back pay for the special salary rates on the [city] locality pay chart.

Based on the information provided by the claimant's agency, the claimant was a member of a bargaining unit, the American Federation of Government Employees, AFL-CIO, during the time of the claim. Moreover, this matter was not excluded from negotiated grievance procedures under the agency's collective bargaining agreement. See Article 47 of the Agreement between the [agency] and the American Federation of Government Employees, AFL-CIO, dated June 8, 2000.

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.