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Office of the General Counsel

Date: October 2, 1998
Matter of: [xxx]
File Number: s98000906

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 duties.

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 duties.

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 bargaining unit.

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 procedure.

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 178.101(b).

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