Washington, DC
U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, United States Code
U.S. Department of Veterans Affairs
Orlando, Florida
Robert D. Hendler
Classification and Pay Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
12/23/2014
Date
The claimant is currently employed in a Nurse, VN-610-II, position with the U.S. Department of Veterans Affairs (VA)[1]. In his September 22, 2014, letter received by the U.S. Office of Personnel Management (OPM) on October 1, 2014, the claimant states he was employed as a nurse at another VA medical center, and he “received a pay cut” upon accepting his current position at a different duty station in 2012. He asserts the pay for his current position should have been set a higher rate, and he requests an unspecified amount of “retroactive compensation.” For the reasons discussed herein, the claim is denied.
Section 7121(a)(1) of title 5, United States Code (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 compensation or leave 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).
Information obtained regarding the claimant (i.e., Standard Form 50s showing the bargaining unit status in block 37) shows he occupied bargaining unit positions during the period covered by the claim. The Master Agreement between the VA and the American Federation of Government Employees covering the claimant during his employment with the VA, and in effect during the period of the claim, does not specifically exclude compensation issues from the NGP (Article 43 in the CBA effective March 2011). 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.
The claimant requests a review of the agency’s hiring practices, stating his was not a “fair and equal hiring process.” Although we may not adjudicate his claim, we note that OPM’s claim adjudication authority under 31 U.S.C. 3702(a)(2) is limited to deciding if the governing statutes and regulations have been properly interpreted and applied in determining the pay and/or benefits to which an employee is entitled. OPM does not perform investigations of agency hiring practices at the request of an individual employee as the claimant appears to ask.
This settlement is final. No further administrative review is available within OPM. Nothing in this settlement limits the claimant’s right to bring an action in an appropriate United States court.
[1] The claimant requests confidentiality. An individual may request confidentiality if he or she files a Fair Labor Standards Act claim under provisions of section 551.706(a)(2) of title 5, Code of Federal Regulations (CFR). The claimant, however, appears to be filing a compensation claim under 5 CFR part 178 provisions, which do not extend the option for confidentiality.