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Office of the General Counsel

Date: December 16, 1998
Matter of: [xxx]
File Number: S001658

OPM Contact: Murray M. Meeker

The claimant, an employee of the [agency] at [xxx] in [xxx], claims back pay for hours that she continues to work beyond her normal working schedule. The employee claims that her entitlement to overtime pay began on April 17, 1995. The [agency] reports that, except for the period from April 17, 1995 to September 9, 1995, when the claimant was temporarily detailed to a supervisory position, her position has been included in a bargaining unit covered by a collective bargaining agreement which includes a negotiated grievance procedure.

The Office of Personnel Management (OPM) cannot take jurisdiction over a claim that is or was subject to a negotiated grievance procedure under a collective bargaining agreement unless that matter is or was specifically excluded from the agreement's grievance procedure. 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 1425, 1453 (Fed. Cir. 1990) (en banc) (In enacting 5 U.S.C.  7121(a), Congress intended that the negotiated grievance procedure was to be the exclusive remedy for matters not excluded from the grievance process), cert. denied, 498 U.S. 811 (1990). Accord, Harris v. United States, 841 F.2d 1097 (Fed. Cir. 1988) and Cecil E. Riggs et al., B-222962.3, April 23, 1992. Thus, OPM has no jurisdiction to review that portion of the employee's claim that began after September 9, 1995.

As concerns that portion of the employee's claim when she was temporarily promoted to a supervisory position that was not included in the bargaining unit, this portion is denied. As reported by the [agency], the claimant never requested nor was she ordered to work any overtime during the period from April 17, 1995 to September 9, 1995. To be entitled to overtime pay, the overtime must be ordered or approved by an authorized official. See Richard R. Bourbeau, B-238987, September 7, 1990; Donald W. Plaskett, B-183916, March 8, 1976; and Robert H. Bailey, B-159938, January 18, 1967.

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

Control Panel