Washington, DC
U.S. Office of Personnel Management
Leave Claim Decision
Under section 3702 of title 31, United States Code
Michael E. DeBakey VA Medical Center
U.S. Department of Veterans Affairs
Houston, Texas
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
01/19/2021
Date
The claimant is a Federal civilian employee of the Logistics Service, Michael E. DeBakey VA Medical Center, U.S. Department of Veterans Affairs in Houston, Texas. The claimant disputes his agency’s decision not to approve his requests for Family Medical Leave Act (FMLA) leave during the period beginning October 2019 through March 2020 and requests that the U.S. Office of Personnel Management (OPM) require his agency to approve his requests for FMLA leave. OPM received the claim request on September 30, 2020. For the reasons discussed herein, the claim is denied.
Section 7121(a)(1) of title 5, United States Code (U.S.C.), provides 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).
Documentation provided by the employing agency (i.e., Standard Form 50, dated January 5, 2020 showing the claimant’s bargaining unit status in block 37) shows the claimant occupied a bargaining unit position during the claim period. Furthermore, Article 43, of the CBA (i.e., Master Agreement) between the Department of Veterans Affairs and the American Federation of Government Employees (AFGE) National Veterans Affairs Council of Locals, dated March 2011, covering the claimant during his employment with the agency and in effect during the period of the claim, does not specifically exclude leave matters from the NGP. Therefore, in accordance with 5 U.S.C. 7121(a)(1) and Mudge v. United States, 308 F.3d 1220, 1228 (Fed. Cir. 2002), this claim must be construed as covered by the NGP the claimant was subject to during the claim period. Accordingly, OPM has no jurisdiction to adjudicate this claim. Therefore, the claimant’s request is denied.
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.