Washington, DC
U.S. Office of Personnel Management
Leave Claim Decision
Under section 3702 of title 31, United States Code
U.S. Department of Agriculture
Tucson, Arizona
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
04/17/2018
Date
The claimant seeks the restoration of 174.50 forfeited annual leave hours for the 2013 leave year from when he was employed by the U.S. Department of Agriculture (USDA) in the Forest Service (FS) in Tucson, Arizona. In February 2013, he was placed on paid administrative leave and informed not to perform any work on behalf of the agency, nor was he to report to the workplace. He was further told not to leave the area, i.e. go on vacation or leave the state, except for regularly scheduled days off with prior approval, and that he was to remain available to report to work on short notice. In December 2013, the claimant received a Notice of Proposed Removal. He was officially removed effective March 19, 2014. The claimant states the timing of the proposed removal action was unfair because it took place at the end of the leave year and he “could not take or apply for vacation.” He asserts the FS failed to pay him his “vacation time” when he was terminated from Federal employment. In May 2014, the claimant submitted a request for restoration of forfeited annual leave package to USDA’s Human Resources Management. It was denied because he did not provide documentation showing he scheduled use of the annual leave and that it was approved in writing by the end of pay period 23. 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 agency (i.e., Standard Form 50 showing the claimant’s bargaining unit status in block 37) shows he occupied a bargaining unit position during the period covered by the claim. The Master Agreement between FS and the National Federation of Federal Employees, covering the claimant during his employment with the agency and in effect during the period of the claim, does not specifically exclude leave issues from the NGP (Article 9 of the CBA in effect in 2013). Therefore, this claim must be construed as covered by the NGP the claimant was subject to during the claim period. Accordingly, OPM has no jurisdiction to adjudicate this claim. 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 USDA 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 USDA.
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.