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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,
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