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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

Hernando G. Pacheco
Police Officer
96th Security Forces Squadron
Eglin Air Force Base (AFB)
Department of the Air Force
Eglin AFB, Florida

Lost wages for meal and other breaks
Denied; Lack of jurisdiction

Robert D. Hendler
Classification and Pay Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability 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).  This decision is subject to discretionary review only under conditions and time limits specified in 5 CFR 551.708.  The claimant has the right to bring action in the appropriate Federal court if dissatisfied with the decision.


The claimant asserts his former employing agency, the Department of the Air Force (AF):  “…is responsible for reimbursement of total of (13) months of lost wages for “Meal Breaks” and additional breaks after the eight hour work schedule which were established as normal practice at Eglin Air Force Base,” and which “have been established by the Fair Labor Standards Act or (FSLA) [sic] under United States Code 5, Section (2302)(b)((3) & (12)[1] this also includes; 5 C.F.R. Section 551.705(a).”

We received the claim on May 1, 2014.  We have accepted and decided this claim under section 4(f) of the Fair Labor Standards Act (FLSA), as amended, codified at section 204(f) of title 29, United States Code (U.S.C.)


OPM settles FLSA claims under the provisions of section 204(f) of title 29 U.S.C., and 5 CFR part 551, subpart G.  Documentation submitted by the claimant shows he was designated as nonexempt from the overtime pay provisions of the FLSA.  Therefore, his claim is potentially reviewable under the provisions of section 204(f) of title 29 U.S.C., and 5 CFR part 551, subpart G.

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 178.101(b) and 5 CFR 551.703(a).   

Information provided by the claimant (i.e., a Standard Form 50 showing the bargaining unit status in block 37) shows he occupied a bargaining unit position during the period of the claim.  The Agreement between the Air Force Materiel Command and the American Federation of Government Employees, Council No. 214, covering the claimant during the period of the claim does not specifically exclude FLSA issues from the NGP (Article 6).  Therefore, this claim must be construed as covered by the NGP the claimant was subject to during the claim period and OPM has no jurisdiction to adjudicate this claim. As is clear in Muniz v. United States, 972 F.2d 1304 (Fed. Cir. 1992), the fact that the claimant is no longer employed by AF does not remove the Civil Service Reform Act’s jurisdictional bar for claims covered by the CBA arbitration and grievance procedures that arose during and from his employment with AF.


The claim is denied based on lack of jurisdiction.

[1] Allegations of prohibited personnel practices under section 2302 of title 5, U.S.C., are reviewable by the Office of the Special Counsel, not by OPM.

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