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


09/23/2014

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

Introduction

The claimant asserts he filed a claim via email through his supervisor to his servicing human resources (HR) office on February 13, 2014, stating his position was “incorrectly categorized as FLSA-exempt.”  He further asserts his exemption status was “corrected beginning 3/23/14” but it was “done improperly” and he has “not received appropriate back pay.”  We received the claim on August 20, 2014. 

We have accepted and decided this claim under section 4(f) of the FLSA, as amended, codified at section 204(f) of title 29, United States Code (U.S.C.)

Jurisdiction

OPM settles Federal civilian employee 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 includes a Standard Form 50 (SF-50) approved May 10, 2014, with an effective date of January 12, 2014, showing the agency corrected the claimant's FLSA exemption status from exempt to nonexempt for all previous actions from his date of appointment, August 16, 2009, to January 12, 2014, which means, generally speaking, the FLSA applies to his position.  Therefore, his claim is potentially reviewable under the provisions of 29 U.S.C. § 204(f), and 5 CFR part 551, subpart G.  However, under 5 CFR 551.703(b), a claimant may file a claim with the agency employing the claimant during the claim period or OPM, but not both simultaneously.  Thus, the claimant’s active claim with his agency precludes him from filing with OPM.  Nevertheless, we may render a decision on this claim based on lack of jurisdiction.

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).  

The claimant states he “was not a member of a collective bargaining unit at any time during the claim period; the bargaining unit status on my SF-50 was listed as ‘7777’ during the entire period.”  However, the aforementioned SF-50 provided by the claimant also corrects his bargaining unit status in block 37 from “7777” (which indicates the absence of a local bargaining unit) to “2039” from the date of his appointment forward.  The CBA between the VA Medical Center San Diego and Service Employees International Union (SEIU) as serviced by NAGE Local R12-228, covering the claimant during the period of the claim does not specifically exclude compensation issues from the NGP (Article 25).  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.

Decision

The claim is denied based on lack of jurisdiction.

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