Office of the General Counsel

OPM Ref. # 1997-01099

[XXX]

Dear [XXX]:

This is in response to your memorandum of September 19, 1997, in which you requested that the Office of Personnel Management (OPM) review Government policy concerning back pay and issue a decision concerning your back pay claim. However, we have been advised by the Civilian Personnel Office at [agency component] that you are subject to a negotiated grievance procedure under a collective bargaining agreement. Please be advised that OPM cannot take jurisdiction over the claim of a current or former federal employee on a matter that is subject to a negotiated grievance procedure under a collective bargaining agreement between the employees agency and union, unless that matter is specifically excluded from the agreements grievance procedure.

The courts have found that Congress intended that such a grievance procedure is to be the exclusive remedy for matters not excluded from the grievance process. Carter v. Gibbs, 909 F.2d 1425, 1453 (Fed. Cir. 1990) (en banc), cert. denied, 498 U.S. 811 (1990) [construing the provision in the Civil Service Reform Act, codified at 5 U.S.C.  7121(a)]. That Act mandates that the grievance procedures in negotiated collective bargaining agreements be the exclusive remedy for matters covered by the agreements. Accord,Cecil E. Riggs et al .,B-222962.3, April 23, 1992.

We regret that we are without authority to consider your back pay claim.

Sincerely yours,

Murray M. Meeker

Senior Attorney