Washington, DC

U.S. Office of Personnel Management
Compensation Claim Decision
Under section 3702 of title 31, 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


01/20/2015

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Date

The claimant was employed in a Nurse Practitioner, VN-610-III, position with the U.S. Department of Veterans Affairs (VA) prior to retiring on August 31, 2014[1].  In her October 1, 2014, letter received by the U.S. Office of Personnel Management (OPM) on October 8, 2014, the claimant is requesting compensation for hours worked from 2007 to April 2014, when she states her workload increased and she could not complete her clinical responsibilities within the 40-hour work week.  She states that, although her supervisor denied her repeated overtime requests, she “…often worked later than 4:30 pm on weekdays.  [She] would estimate that at least 3 to 5 times a week, [she] would stay late (from 5:30 to 7 pm).  In addition, [she] would come in at least one weekend each month to complete 2 to 4 hours of clinical paperwork.”  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 provided by the claimant (i.e., Standard Form 50s showing the bargaining unit status in block 37) shows she 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 her employment with the VA, and in effect during the period of the claim, does not specifically exclude compensation issues from the NGP (Article 42 in the CBA in effect in 2007 and 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.  As is clear in Muniz v. United States, 972 F.2d 1304 (Fed. Cir. 1992), the fact the claimant is no longer employed by the VA 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 VA.

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.

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