Washington, DC
U.S. Office of Personnel Management
Fair Labor Standards Act Decision
Under section 204(f) of title 29, United States Code
U.S. Department of Labor
Linda Kazinetz
Classification Appeals and FLSA Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
02/21/2017
Date
As provided in section 551.708 of title 5, Code of Federal Regulations (
Introduction
On May 9, 2012, the U.S. Office of Personnel Management (OPM) received a letter dated May 9, 2012, from the Law Offices of Bernstein & Lipsett, P.C. (B & L), the claimant’s duly appointed representative, concerning a Fair Labor Standards (FLSA) claim they had initially filed on the claimant’s behalf with the General Accounting Office (GAO), now the U.S. Government Accountability Office, by letter dated October 2, 1992, and subsequently with OPM on January 5, 2000, challenging his exemption status when he was employed as an Investigator (Labor), GS-1801-9, with the Department of Labor (DOL). The claimant was a plaintiff in a lawsuit filed in the U.S. Court of Federal Claims at approximately the same time the administrative claim was filed with GAO. Based on information provided by B & L, the claimant was awarded back pay under a settlement agreement for the pay period ending August 11, 1990, to the pay period ending October 29, 1994, subject to the two-year statute of limitations for FLSA claims under 29 U.S.C. § 255(a).
B & L has requested OPM adjudicate the administrative claim filed with OPM and asserts that, because the claimant served in the military during the Gulf War, the statute of limitations applicable to this claim is the five-year statute of limitations under 31 U.S.C. § 3702(b)(2) rather than the two-year statute of limitations (three years for willful violations) applicable to FLSA administrative claims filed under the Barring Act. See 73 Comp. Gen 157 (May 23, 1994); 31 U.S.C. 3702(b); 29 U.S.C. § 255(a). B & L states the claimant was called to active duty with the United States Army/Army Reserve “from approximately February 11, 1991, to May 26, 1991” in connection with Operation Desert Shield/Storm and, citing the provisions of 31 U.S.C. § 3702(b)(2), asserts: “[H]e is entitled to retroactive back pay and interest… for the period he was employed prior to the commencement of the Gulf War on August 2, 1990, up to the date he recovered under previous FLSA settlements. This period includes September 3, 1985 to July 28, 1990,[1] less Mr. Grothaus’ active duty military service time, for which he does not seek recovery.”
Background
We previously accepted and decided six similar claims under section 4(f) of the FLSA, as amended, codified at section 204(f) of title 29, United States Code (U.S.C.), which we denied as time barred. Subsequently, claimant’s representative brought suit under the Administrative Procedure Act (5 U.S.C. § 551 et seq., and 701 et seq.) in the United States District Court for the District of Columbia, alleging that OPM wrongfully applied a two-year statute of limitations in denying their administrative claims for unpaid FLSA overtime pay. Armstrong v. Archuleta, 77 F.Supp.3d 9 (December 30, 2014). In relevant part, the court stated in its opinion:
All Plaintiffs are deemed to have timely filed their claims as of the date of their filings with the Claims Court. As a result, Plaintiffs . . . can recover for the entire claim period under the five-year statute of limitations—that is, for all claims that accrued within five years before the Gulf War commenced on August 2, 1990—minus monies paid under their DOJ Settlements.
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[T]he case is remanded to OPM to adjudicate and process damages in accordance with FLSA and other applicable laws, and Plaintiffs’ respective employing agencies are directed to compensate them in accordance with OPM’s determinations.
Analysis
Under the provisions of 5
On September 29, 2015, in response to the aforementioned court decision, OPM requested an agency administrative report (AAR) from DOL regarding this FLSA claim. By letter submitted on October 3, 2016, DOL advised OPM that based on their fact-finding the claimant:
…worked for the Department of Labor as a GS 9, Step 1 Investigator…from August 31, 1986 to October 10, 1987.[2]
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Moreover, documents in Mr. Grothaus’s personnel file also indicate that he was placed at his request on a military furlough effective May 27, 1986, which was to last approximately four months… His payroll data reflects only eight hours in the payroll period ending June 7, 1986, and no time thereafter… There is no documentation in his personnel file indicating that he returned to work at DOL prior to his separation date…
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Finally, Mr. Grothaus was covered by a collective bargaining agreement during his employment with DOL under which he could have raised his overtime claim as a grievance. According to his SF 50-B, Mr. Grothaus was an OLMS [Office of Labor Management Standards] investigator in the OLMS Area Office in Kansas City, Missouri… For many years, investigators in the OLMS field offices have been represented by a union. That union is now called “the National Union of Labor Investigators, or “NULI.” NULI was formerly known as the National Union of Compliance Officers, or “NUCO.” Mr. Grothaus’s SF 50-B confirms that he was in the NUCO bargaining unit. Id. The OLMS investigators represented by NULI (formerly NUCO) are “engaged in administering” the provisions of the Federal Service Labor Management Relations Statute, Chapter 71 of Title V, within the meaning of Section 7112(b)(4) of that Statute. In particular, as stated in Mr. Grothaus’s Position Description, OLMS field investigators are responsible for enforcing the provisions of 5 U.S.C. § 7120 (standards of conduct for federal sector unions)… According to Section 7112(b)(4), that would normally mean that the investigators could not be part of a bargaining unit at all. However, NULI is permitted to, and does, represent such a bargaining unit at DOL because that bargaining unit existed prior to the [sic] October 13, 1978, when Chapter 71 was enacted, and is therefore grandfathered under 5 U.S.C. § 7135(a)(1). The definition of “grievance” in the (then) NUCO collective bargaining agreement applicable to Mr. Grothaus includes “any matter relating to the employment of the employee” and “any claimed violation … of any law, rule or regulation affecting conditions of employment,” and does not exclude overtime claims under the FLSA. (Exh. 6, NUCO CBA Art. 34, Sec. 2(a)(1).) Accordingly, it appears that Mr. Grothaus’s administrative claim for overtime pay is barred by 5 C.F.R. § 551.703(a)[3] (grievance procedure that does not exclude FLSA is exclusive administrative remedy for overtime claims).
The claimant’s May 9, 2012, letter included a “Statement” signed by the claimant dated November 7, 2011, stating, in relevant part:
2. My claim involves the time period from September 3, 1985 to July 28, 1990.
3. During that time period, I was not a member of a collective bargaining unit.
However, the claimant’s SF-50 documenting his September 3, 1985, career conditional appointment to the DOL Investigator (Labor), GS-1801-9, position includes the Remark: “This position is inside the bargaining unit-NUCO,” and Block 39D, “Bargaining Unit Status,” shows coverage under bargaining unit 0030. The same bargaining unit code is present on his SF-50 documenting his August 30, 1986, Termination-Appointment in the Department of Defense. Thus, we conclude the claimant occupied a bargaining unit position during the period of the claim he was employed by DOL.
Section 7121(a)(1) of title 5, U.S.C., in force while the claimant was employed by DOL, directed that except as provided elsewhere in the statute, the grievance procedures in a negotiated collective bargaining agreement (CBA) shall be the exclusive remedy for resolving matters that fall within the coverage of the CBA. The Court of Appeals for the Federal Circuit subsequently found the plain language of 5 U.S.C. 7121(a)(1) to be clear, and as such, limited the resolution of a Federal employee’s grievance to the negotiated procedures set forth in the CBA. See Carter v. Gibbs, 909 F.2d 1452 (Fed.Cir.1990) (en banc), cert. denied, Carter v. Goldberg, 498 U.S. 811, 111 S.Ct. 46, 112 L.Ed.2d 22 (1990). 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 previously cited claim period unless the matter was specifically excluded from the CBA’s NGP. The CBA between NUCO and OLMS covering the claimant during the period of the claim does not specifically exclude FLSA issues from the NGP (Article 34). 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.
[1] The claimant was employed with DOL from September 3, 1985, to August 30, 1986, which we treat as the claim period for purposes of this decision.
[2] The Standard Form 50s (SF-50s) documenting the claimant’s employment with DOL and provided by the Agency show he was employed by DOL in that position from September 3, 1985, to August 30, 1986.
[3] Under Pub. L. No. 103-424, sec. 9(c) (1994), Congress amended 5 U.S.C. 7121(a)(1) to add the term “administrative” to the phrase “shall be the exclusive procedures for resolving grievances,” which was previously construed by the courts under 5 U.S.C. 7121(a)(1) as limiting the resolution of a Federal employee’s grievance to the negotiated procedures set forth in the CBA. See Carter v. Gibbs, 909 F.2d 1452 (Fed.Cir.1990) (en banc), cert. denied, Carter v. Goldberg, 498 U.S. 811, 111 S.Ct. 46, 112 L.Ed.2d 22 (1990). The language in current 5 CFR 551.703(a) applies the 1994 change in statute and, thus, is inapplicable to the time period in which the claimant was employed by Labor.