Washington, DC

U.S. Office of Personnel Management
Declination of Reasonable Offer Decision
Under section 5366 of title 5, United States Code

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Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance


12/18/2018

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Date

Introduction

On April 19, 2018, the U.S. Office of Personnel Management (OPM) accepted a declination of reasonable offer appeal from the appellant, who occupied a position at the time classified as Computer Engineer, GS-854-12, at the Defense Contract Management Agency (DCMA) in Orlando, Florida.  He requests OPM reconsider DCMA’s decision to terminate his grade and pay retention benefits.  We received the agency’s administrative report on May 25, 2018, and the appellant’s comments on the report on June 4, 2018.  We accepted and decided this appeal under section 5366 of title 5, United States Code (U.S.C.).

General issue

The appellant’s grade and pay retention benefits were terminated on the grounds he declined a reasonable offer.  The appellant states the offer was not reasonable because he believes he was not qualified for the GS-13 equivalent position being offered (i.e., a General Engineer, NH-801-3 position) and for various personal hardship reasons.  He states the stress of the offered position would negatively affect his current medical condition.  He states he was allowed to telework as a result of his medical condition but he had been informed that the offered position would not allow for such work flexibility arrangement.  The appellant also expresses his concerns regarding the possibility of his not being able to obtain the critical sensitive top secret clearance he believes is required for the offered position.

Background

The appellant previously occupied a Computer Engineer, GS-854-13, position with DCMA-Lockheed Martin in Orlando, Florida.  DCMA identified the appellant’s position as a position subject to a downgrade.  After receiving an October 3, 2017, letter notifying him of an opportunity to voluntarily change to a lower-graded position, the appellant accepted the Computer Engineer, GS-854-12, position, effective November 12, 2017.  The letter also informed him of his entitlement to grade and pay retention benefits.  DCMA registered the appellant in the Department of Defense Retained Grade Placement Program (Program R) of the Priority Placement Program, referring him for positions up to the GS-13 grade level for which he was well qualified within the local commuting area.  On January 10, 2018, the appellant was offered the General Engineer, NH-801-3, position at DCMA-Special Programs in Orlando, Florida, in an attempt to return him to a position equivalent to the grade previously held.  The appellant subsequently declined it on February 14, 2018, and his grade retention benefits were terminated on February 18, 2018.

The agency states in its administrative report to OPM that DCMA-Lockheed Martin subsequently initiated a personnel action to re-promote the appellant to a Computer Engineer, GS-854-13, position, effective May 27, 2018.

Jurisdiction

The regulations applicable in determining if a reasonable offer was made are contained in subparts A, B, and D of part 536 of 5 CFR.  Subpart D of part 536 of 5 CFR contains the requirements for appealing the termination of benefits because of a reasonable offer.  As provided for in 5 CFR 536.402(e), the termination of benefits based on a declination of reasonable offer by an employee in an exclusively recognized bargaining unit may be reviewed under the negotiated grievance and arbitration procedures in accordance with chapter 71 of 5 U.S.C. and the terms of any applicable collective bargaining agreement (CBA).

The appellant, although agreeing with the agency’s report that he was re-promoted to a GS-13 Computer Engineer position, states in his administrative report comments that his pay was incorrectly set at the GS-13, step 7, rate upon his re-promotion in May 2018.  He asserts that prior to being placed in the Priority Placement Program, he would have completed the required waiting period for advancement to the GS-13, step 8, rate in April 2018.  He asks OPM to direct his agency to “grant [him] re-instatement to GS-13 step 8.”  The declination of reasonable offer appeal process in subpart D of part 536 of 5 CFR covers disputes over the termination of benefits because of a reasonable offer.  These provisions do not cover the issue he now raises concerning his within-grade increase.  OPM is authorized to settle such compensation claims under the provisions of section 3702(a)(2) of 31 U.S.C. and part 178 of 5 CFR.  Section 178.102(a) of 5 CFR indicates that the employing agency must review and issue a written decision on a compensation claim before it is submitted to OPM for adjudication.  The employee is responsible for preserving the claim period by proving the signed, written claim was filed within the applicable statute of limitations.  See 5 CFR 178.104.  The information provided by the appellant with his request does not show he has filed a signed, written claim with the agency component authorized to issue an agency-level decision or that he has received such a decision.  Therefore, the claim for a GS-13, step 8, pay rate is not ripe for review.  However, we may render a decision on the pay claim and the declination of reasonable offer appeal 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 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 has 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 declination of reasonable offer or other compensation claims of Federal employees who are or were subject to a negotiated grievance procedure (NGP) under a CBA between the employing agency and labor union, unless the matter is or was specifically excluded from the CBA’s NGP.  See 5 CFR 536.402(e) and 5 CFR 178.101(b).

Information obtained by OPM (i.e., Standard Form 50 showing the bargaining unit status in block 37) shows the appellant occupied a bargaining unit position.  The CBA between the DCMA and the American Federation of Government Employees covering the appellant does not specifically exclude declination of reasonable offer appeals and other compensation issues from the NGP (Article 30).  Therefore, the appellant’s requests must be construed as covered by the NGP he was subject to at the time of his filing, and OPM has no jurisdiction to adjudicate his appeal or intervene in matters of pay.

Decision

The appeal is denied based on lack of jurisdiction.

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