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OPM Contact: Jo-Ann Chabot
The claimant seeks back pay for performing the duties of a
higher graded position beyond the duration of a 120-day temporary
appointment that he received. After reviewing this claim, we have
determined that it may not be allowed.
The claimant works for the [agency] as an Electrician. On April
6, 1989, he received a 120-day temporary promotion to Production
Shop Planner, a higher paying position. The claimant states that
the pay increase associated with the 120-day appointment did not
actually start until July 16, 1989, and continued until November 4,
1989. He states further that he was paid as an Electrician from
April 6, 1989 until October 1, 1996, even though he still was
assigned to the Planning Office with no break in tenure and his
performance appraisals were based on Production Shop Planner
The claimant's employing agency states that he was offered two
"letters of misassignment," dated November 12, 1996 and November
25, 1996, that he could use in competition for Production Shop
Planner positions under the agency's merit promotion program. The
agency further states that nine personnel actions related to the
claimant occurred from April 6, 1989 to October 1, 1996, and that
the first personnel action related to the claimant's 120-day
temporary promotion. The agency states that all of the remaining
personnel actions, which are related to the claimant's incentive
awards, identify the claimant's permanent position of record as
Electrician. The agency states in this regard that there is no
indication that the claimant performed the full scope of duties of
the Production Shop Planner position beyond the 120-day temporary
assignment. Finally, the agency states that the claimant is not
entitled to back pay under the Back Pay Act, presumably because he
did not file a grievance, and that there is no statute, regulation,
agency regulation or provision in the collective bargaining
agreement that requires a temporary promotion to higher level
Agency officials state that the Electrician position and
Production Shop Planner position both are included in a bargaining
unit of exclusive recognition and are covered by a collective
bargaining agreement between the agency and a Federal employees
labor organization affiliated with the AFL-CIO. They state that the
claimant has not filed an administrative grievance concerning this
matter. They enclosed with the agency report pertinent provisions
of the Negotiated Agreement
between [xxx] and the [xxx], AFL-CIO. Article 1, Section 2
of the Negotiated Agreement excludes production shop planners from
the Agreement's coverage. According to the agency, however, the
claimant's permanent position of record during the time period at
issue was Electrician. Thus, the claimant is a member of the
Article 33 of the Negotiated Agreement concerns the negotiated
grievance procedure. Section 1 of Article 33 provides that a
grievance includes complaints of any claimed violation,
misinterpretation, or misapplication of any law, rule, or
regulation affecting conditions of employment. Section 2 of Article
33 is a list of matters excluded from the grievance procedure. The
list does not include temporary promotions. Article 9 of the
Agreement concerns the Merit Promotion Program. Section 4 of
Article 9 provides that no employee may be temporarily promoted or
detailed to higher level positions in excess of 120 calendar days
in a 12-month period, dating from the first day of the first
temporary promotion or detail, unless he was selected from a
properly issued completed promotion certificate. Accordingly, the
claimant's claim is not excluded from the negotiated grievance
The Office of Personnel Management (OPM) does not have
jurisdiction to consider a matter that is or was 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. Congress intended that such a grievance
procedure would 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) which mandates that the
grievance procedures in negotiated collective bargaining agreements
be the exclusive remedy for matters covered by the agreements).
Accord, Cecil E. Riggs, et al., 71 Comp. Gen. 374 (1992).
Accordingly, OPM cannot assert jurisdiction over, or issue a
decision concerning, this matter. See 5 CFR