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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

Ramon Garcia, Jr.
Information Technology Specialist
(Systems Administration)
GS-2210-11
Field Program Offices
National Consolidated Mail Out
Pharmacy Office
Department of Veterans Affairs
Tucson, Arizona
On-call/standby duty pay
Denied; Lack of jurisdiction
F-2210-11-01

Robert D. Hendler
Classification and Pay Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance

04/29/2014


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).  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.

Introduction

On August 8, 2013, the U.S. Office of Personnel Management's (OPM) Merit System Accountability and Compliance received this FLSA claim seeking on-call and standby duty pay for the period June 27, 2008, to February 27, 2012. 

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 has authority to adjudicate FLSA claims for Federal employees under the provisions of section 204(f) of title 29, U.S.C.  OPM’s adjudication authority is an administrative remedy, not a judicial remedy.  See 5 CFR part 551, subpart GSection 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 submitted by the claimant (i.e., Notification of Personnel Actions, Standard Form 50s showing the bargaining unit status in block 37) shows that the claimant occupies a bargaining unit position.  The Master Agreements between the Department of Veterans Affairs and the American Federation of Government Employees covering the claimant during the period of the claim do not specifically exclude compensation issues from the NGP (Article 42 in the 1997 CBA and Article 43 in the 2011 CBA).  Therefore, this claim must be construed as covered by the NGPs the claimant was subject to during the claim period and OPM has no jurisdiction to adjudicate his claim.   

Decision

The claim is denied based on lack of jurisdiction.

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