Washington, DC
U.S. Office of Personnel Management
Leave Claim Decision
Under section 3702 of title 31, United States Code
San Diego Field Operations
U.S. Customs and Border Protection
U.S. Department of Homeland Security
Calexico, California
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
03/10/2023
Date
The claimant occupies a Customs and Border Protection Officer (CBPO) position with the Calexico Port of Entry (POE), San Diego Field Operations, U.S. Customs and Border Protection (CBP), U.S. Department of Homeland Security, in Calexico, California. He seeks assistance from the U.S. Office of Personnel Management (OPM) in having his agency reimburse him the 6.5 hours of leave he believes is owed him for not being released early on May 30, 2022, Memorial Day[1]. For the reasons discussed herein, the claim is denied for lack of jurisdiction.
On May 29, 2022, the claimant requested the following day off but was denied. On May 30, 2022, he reported to work at the passenger processing area and states he was one of 12 excess CBPOs in his assigned area that day because it appears that on holidays some of the areas are closed and the CBPOs from the closed areas go to the passenger processing area. He states the majority of the excess CBPOs that day were from the cargo area, but he was reassigned to the cargo area early in his shift because another employee called out sick. That morning the claimant emailed his concerns to management about the seniority level of the CBPOs released earlier and after he was reassigned for the day. He was informed the majority of the CBPO’s released have more seniority and the one with less seniority was sent home sick. As an employee occupying a bargaining unit position, on May 31, 2022, the claimant sent an email filing a grievance. He believes the CBPO’s released early the previous day have less seniority and wants to know why he was chosen to be reassigned to the cargo area. He states he was not the only cargo trained CBPO at the Calexico POE that day and the reassignment of a CBPO should be based on seniority.
The claimant’s Step 1 grievance meeting was held on June 22, 2022, and the decision letter dated June 29, 2022, states he was deemed a Flex-Capable employee who was qualified and releasable. The letter states seniority is not a factor when deciding to flex an employee. On June 30, 2022, the claimant requested a Step 2 grievance meeting and information (i.e., names and entrance-on-duty dates for the CBPOs released and the CBP policy concerning flex employees). He was informed he could request the information through a Freedom of Information Act request and complete and submit form CBP-280. The claimant’s Step 2 grievance meeting was held on July 13, 2022. The decision letter dated July 27, 2022, states the claimant’s assertions regarding his reassignment and the early release of CBPOs based on seniority May 30, 2022, have no merit and his request for seven hours of excused absence as a remedy was not granted.
As an initial matter, the claimant labeled this claim a Fair Labor Standards Act (FLSA) claim. The FLSA claims process in subpart G of part 551 of title 5, Code of Federal Regulations (CFR), covers disputes over FLSA exemption status, failure to pay FLSA nonexempt employees the minimum wage or the proper overtime pay, and child labor complaints. A Standard Form (SF) 50 for the claimant effective August 14, 2022, shows in block 35 that he is classified as an FLSA nonexempt employee. As an FLSA nonexempt employee who is not disputing his exemption status, the claimant cannot bring this action under the FLSA claims process since it does not cover the claim he introduces, i.e., that he is owed leave for not being released early on May 30, 2022. Therefore, to the extent this claim is construed as a request for leave owed, we will treat this request as a leave claim which OPM is authorized to settle under the provisions of section 3702(a)(2) of title 31, United States Code (U.S.C.), and part 178 of title 5, CFR.
Section 178.102 of title 5, CFR specifies the documentation accompanying a claim should include a copy of the final written agency denial of the claim (5 CFR 178.102(a)(3)). Therefore, the procedures for submitting a claim require that an employing agency has already reviewed and issued an initial decision on a claim before it is submitted to OPM for adjudication. Although the record does not include an agency-level decision (which does not include employee grievance decisions), we may render a decision on this claim based on jurisdictional grounds.
Section 7121(a)(1) of 5 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).
Documentation obtained by OPM (i.e., SF-50 effective August 14, 2022, block 37 showing bargaining unit status) shows the claimant occupies a bargaining unit position. Furthermore, the National Collective Bargaining Agreement (NCBA) between CBP and the National Treasury Employee Union dated October 1, 2017, covering the claimant during the claim period, does not specifically exclude leave issues from the NGP (Article 27, Grievance Procedure, of the NCBA). 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 also states higher-level management selects which NCBA provisions they will enforce and disregard the provisions he maintains support his claim. He states his claim includes what he believes are union contract violations concerning holiday staffing levels and the early release of employees on a holiday. We infer the claimant wants his concerns stated above investigated. Although OPM does not have jurisdiction to adjudicate this claim, we note that OPM’s claims jurisdiction is limited to consideration of statutory and regulatory liability. OPM adjudicates leave claims by determining whether controlling statute, regulations, policy, and other written guidance were correctly applied to the facts of the case. OPM’s leave claims program does not perform investigations. Therefore, this request is beyond the scope of our claim adjudication authority and is also denied.
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.
[1] In his completed National Treasury Employees Union Grievance Form dated July 3, 2022, the claimant requested his agency reimburse him 7 hours of leave. However, in an August 10, 2022, email to OPM he indicated he was requesting reimbursement of 6.5 hours of leave.