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
Agency Compliance and Evaluation
Merit System Accountability and Compliance


09/09/2013

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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).  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 5 CFR 551.710).  The claimant has the right to bring action in the appropriate Federal court if dissatisfied with the decision. 

Introduction  

On April 3, 2013, the U.S. Office of Personnel Management’s (OPM) Merit System Audit and Compliance (now Merit System Accountability and Compliance) received this Fair Labor Standards Act (FLSA) claim, which the claimant’s representative presents as follows: 

The Management at Metropolitan Detention Center, Los Angeles, CA, Federal Bureau of Prisons refused to compensate the Claimant for working overtime of an additional 15 to 20 minutes, before and after 6:00am to 2:00pm, eight hours work shift beginning from 12, January ending in September 25, of 2012, which total for 56 extra hours the Claimant worked and the total amount of $2420.88, which is owed to the Claimant. 

We have accepted and decided this claim under Section 4(f) of the FLSA of 1938, as amended (29 United States Code (U.S.C.) § 204(f)).

In reaching our FLSA decision, we have carefully considered all information of record, including that furnished by the claimant.

Jurisdiction

As stated in 5 CFR 551.101, the FLSA:

provides minimum wage standards for both wages and overtime entitlements, and administrative procedures by which covered worktime must be compensated. 

OPM’s adjudication authority for FLSA claims under the provisions of 29 U.S.C. § 204(f) is an administrative remedy, not a judicial remedy.  See 5 CFR part 551, subpart G.  Section 7121(a)(1) of title 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 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 agency shows the claimant occupied a bargaining unit position.  The CBA between the Federal Bureau of Prisons (BOP) and  the American Federation of Government Employees, Council of Prison Locals, 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 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.  As is clear in Muniz v. United States, 972 F.2d 1304 (Fed. Cir. 1992), the fact the claimant is no longer employed by BOP does not remove the Civil Service Reform Act’s jurisdictional bar for claims covered by CBA arbitration and grievance procedures which arose during and from her employment with the BOP.

Decision

The claim is denied based on lack of jurisdiction.

 

 

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