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Pay & Leave Claim Decisions

Washington, DC

U.S. Office of Personnel Management
Fair Labor Standards Act Decision
Under section 204(f) of title 29, United States Code

John Selenske
Correctional Officer
Correctional Services
North Central Region
Bureau of Prisons
U.S. Department of Justice
FCI, Oxford, Wisconsin
Overtime pay arising from settlement agreement
Denied; Lack of jurisdiction

Robert D. Hendler
Classification and Pay Claims
Program Manager
Merit System Audit and Compliance



As provided in section 551.708 of title 5, Code of Federal Regulations (CFR), this decision is binding on all administrative, certifying, payroll, disbursing, and accounting officials of agencies for which the U.S. Office of Personnel Management (OPM) administers the Fair Labor Standards Act (FLSA).  The agency should identify all similarly situated current and, to the extent possible, former employees, and ensure that they are treated in a manner consistent with this decision as provided for in 5 CFR 551.708.  There is no right of further administrative appeal.  This decision is subject to discretionary review only under conditions and time limits specified in 5 CFR 551.708 (address provided in section 551.710).  The claimant has the right to bring action in the appropriate Federal court if dissatisfied with the decision.


On October 6, 2011, the U.S. Office of Personnel Management’s (OPM) Merit System Audit and Compliance received a Fair Labor Standards Act overtime pay claim from the claimant,  pertaining to his previous employment as a Correctional Officer, GS-0007-6, at the Federal Correctional Institution (FCI), in Oxford, Wisconsin.  He seeks to file a claim for FLSA overtime pay, plus interest, arising from a Settlement Agreement reached between the Agency and the American Federation of Government Employees (AFGE), Local 3495.  We have accepted and decided this claim under Section 4(f) of the FLSA of 1938, as amended, codified at 29 United States Code (U.S.C.) § 204(f).

In reaching our FLSA decision, we have carefully considered all information furnished by the claimant and his former employing activity, FCI Oxford, at our request. 

Nature of the Claim

On November 10, 2010, FCI Oxford and AFGE Local 3495 reached a Settlement Agreement to resolve a grievance, filed on October 17, 2005, alleging the FCI Oxford’s failure to pay overtime compensation pursuant to the FLSA for time spent by bargaining unit employees performing work before and/or after scheduled shift start and stop times. The claimant alleges that he met all the criteria in the Settlement Agreement to receive overtime pay.  However, he states AFGE Local 3495 failed to include his name on a list submitted to the agency of employees who were entitled to receive payment.  He states neither the union nor the agency have assisted him on this matter and, thus, he filed a claim with OPM.           


Section 7121(a)(1) of 5 U.S.C. directs that except as provided elsewhere in the statute, the grievance procedures in a negotiated collective bargaining agreement (CBA) shall be the exclusive administrative remedy for resolving matters that fall within the coverage of the CBA.  The Court of Appeals for the Federal Circuit has found the plain language of 5 U.S.C. § 7121(a)(1) to be clear, and as such, limits the administrative resolution of a Federal employee’s grievance to the negotiated procedures set forth in the CBA.  Mudge v. United States, 308 F.3d 1220, 1228 (Fed. Cir. 2002).  Further, the Federal Circuit also found that all matters not specifically excluded from the grievance process by the CBA fall within the coverage of the CBA.  Id. at 1231.  As such, OPM cannot assert jurisdiction over the FLSA claims of Federal employees who are or were subject to a negotiated grievance procedure (NGP) under a CBA between the employee’s agency and labor union for any time during the claim period, unless the matter is or was specifically excluded from the CBA’s NGP.  See  5 CFR 551.703(a).

Information provided by the FCI Oxford at our request shows the CBA between the FCI Oxford and AFGE Local 3495, covering the claimant and in effect during the period of the claim, does not specifically exclude FLSA overtime pay issues from the NGP (Article 31) covering the claimant.  Therefore, the claimant’s dispute regarding FLSA overtime pay must be construed as covered by the NGP the claimant was subject to during the claim period.  Accordingly, OPM lacks jurisdiction to adjudicate this claim or intervene in this matter. 


The claim is denied based on lack of jurisdiction.


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