s003931

Office of the General Counsel

Date: February 23, 2000
Matter of: [xxx]
File Number: S003931

OPM Contact: Murray M. Meeker

The claimant, an employee with the [agency] in [xxx], seeks environmental differential pay based on asbestos exposure. For the reasons expressed herein, the claim is denied for lack of jurisdiction.

The [agency] has advised the Office of Personnel Management (OPM) that during the period covered by the claim, the claimant was subject to a negotiated grievance procedure under a collective bargaining agreement, and that the claim is not excluded from the agreement's negotiated grievance procedure. Indeed, the agency advised OPM that the claimant had previously filed a grievance under the negotiated grievance procedure.

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); Cecil E. Riggs et al., B-222962.3, April 23, 1992.