Washington, DC

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

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


10/27/2010

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Date

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.  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.

Introduction

On July 6, 2010, the U.S. Office of Personnel Management’s (OPM) Merit System Audit and Compliance received a Fair Labor Standards Act (FLSA) claim from Mr. James E. Nelson concerning his employment in a Police Officer, GS-083-7, position in the Police Service at the Slidell Outpatient Clinic, SLVHCS, VA, in Slidell, Louisiana.  The claimant seeks overtime compensation for “8.5 hour work days, without lunch periods” from July 14, 2008, through June 29, 2009.  He also states he was “restricted from leaving property during the entire tour from July 14, 2008 through June 29, 2009.”

In reaching our FLSA decision, we have carefully considered all information furnished by the claimant and additional documentation we received from his agency on July 8, 2010.

Jurisdiction

Although OPM has the authority to adjudicate FLSA claims for many Federal employees, OPM cannot take jurisdiction over FLSA claims of Federal employees that are or were subject to a negotiated grievance procedure (NGP) under a collective bargaining agreement (CBA) between the employee’s agency and labor organization for any time during the claim period, unless that matter is or was specifically excluded from the agreement’s NGP.  The Federal courts have found Congress intended such a grievance procedure to be the exclusive administrative remedy for matters not excluded from the grievance process.  Carter v. Gibbs, 909 F.2d 1452 (Fed. Cir. 1990) (en banc), cert. denied, Carter v. Goldberg, 498 U.S. 811 (1990); Mudge v. United States, 308 F.3d 1220 (Fed. Cir. 2002).  Section 7121(a)(1) of 5 U.S.C. mandates the grievance procedures in negotiated CBAs be the exclusive administrative procedures for resolving matters covered by the agreements.  Accord, Paul D. Bills, et al., B-260475 (June 13, 1995); Cecil E. Riggs, et al., 71 Comp. Gen. 374 (1992).

The claimant states he “was not a member of a collective bargaining unit during the period nor was [he] covered by the negotiated grievance procedure during this period.”  Union membership status is not germane to determining claims settlement jurisdiction.  Information provided by the agency shows the claimant occupies a bargaining unit position.  The CBA between VA and the American Federation of Government Employees (AFGE) National Veterans Affairs Council of Locals in effect during the period of the claim does not specifically exclude FLSA overtime pay issues from the NGP (Article 42) covering the claimant.  Therefore, the claimant’s FLSA 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.[1]

Decision

The claim is denied based on lack of jurisdiction.

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