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Pay & Leave Claim Decisions

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Office of the General Counsel

Date: October 13, 1998
Matter of: [xxx]
File Number: s98002081

OPM Contact: Jo-Ann Chabot

This is a claim for back pay allegedly resulting from an arbitration award issued in August 1997. The claimant advises that he was employed with the [agency], and that the [agency] removed him from its rolls in March 1997. He also notes that the [union] represented him in recently concluded arbitration hearings on the removal charges and, if he wins this case, he will be entitled to another back pay award. The claimant believes that, because the collective bargaining agreement between the [agency] and the [union] provides that an arbitrator's decision is final and binding, an individual may bring legal action to enforce an arbitrator's decision in his favor. Thus, the claimant also wants to know whether he is entitled to bring legal action in federal court to enforce an arbitration award.

This office 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). The matters that the claimant has raised clearly stem from incidents that are subject to the negotiated grievance procedure. Accordingly, we cannot assert jurisdiction over, or issue a decision concerning, these matters.

Moreover, the questions that the claimant has raised concerning his claims for back pay ultimately arise from underlying allegations of wrongful removal, a matter that currently is under consideration in arbitration proceedings. We cannot consider claims that currently are under consideration in another forum that has the authority to consider and determine such matters. In addition, we do not have any authority to settle claims that have been made against an agency that has independent settlement authority under the law. The applicable law in this case, section 2008(c) of title 39, United States Code, authorizes the [agency] to consider and settle all claims that have been made against it. Therefore, we do not have the authority to consider or settle this claim. Finally, the claimant should consult with the [union] about any remedies that might exist in connection with enforcing an arbitrator's award.

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