Office of Merit Systems Oversight and Effectiveness

Date: October 22, 2001
File Number: [01-0046]
Matter of: [Claimants Name]

OPM Contact: Deborah Y. McKissick

Pursuant to 5 CFR § 178.102(b), the [agency] filed a claim with the Office of Personnel Management (OPM) on behalf of the claimant on July 20, 2001. We acknowledged receipt of this claim on July 26, 2001. The agency administrative report was received on August 24, 2001. The claimant contends that his agency erroneously denied him payment for 120 hours of restored annual leave. We do not have jurisdiction to consider this claim. For the reasons stated below, this claim is dismissed.

Based on the information provided by the agency, the claimant was and continues to be covered by an exclusive collective bargaining agreement between the [agency], Mid-Pacific Region and the International Brotherhood of Electrical Workers, Local Union 1245. Moreover, this matter was not excluded from negotiated grievance procedures under the collective bargaining agreement as outlined in Article VI, of the Basic Agreement. Section 2 of Article VI specifies matters considered under the negotiated grievance procedure and Section 2.1 itemizes issues that are excluded. The issue of this claim is not specifically excluded, and is, therefore, included as a grievable matter under paragraph "a" of Section 2, which states:

Pay Administration

Disagreements over pay administration, which require interpretation of written regulations or decisions issued by the Office of Personnel Management or the Comptroller General will be put in written form and sent to the appropriate compensation specialist for resolution. Administrative decisions issued by the Office of Personnel Management or Comptroller General may be appealed by either Party through the appropriate appeals procedure.

OPM does not have jurisdiction to consider a matter that is or was subject to a negotiated grievance procedure under a collective bargaining agreement between the employee's agency and labor union, unless that matter is or was specifically excluded from the agreement's grievance procedure. Congress intended that such a grievance procedure would be the exclusive remedy for matters not excluded from the grievance process. Carter v. Gibbs, 909 F.2d 1452, 1454-55 (Fed. Cir. 1990) (en banc), cert. denied, 498 U.S. 811 (1990) (Construing therein the provision in the Civil Service Reform Act codified at 5 U.S.C. § 7121(a) which mandates that the grievance procedures in negotiated collective bargaining agreements be the exclusive remedy for matters covered by the agreements). Accord, Paul D. Bills, et al., B260475 (June 13, 1995); Cecil E. Riggs, et al., 71 Comp. Gen. 374 (1992).

The agency cites the above paragraph of the agreement as giving OPM jurisdiction to consider this case. However, the Carter v. Gibbs decision precludes OPM from issuing an administrative decision in this matter. We do not perceive that this claim is appealing a previous Comptroller General or OPM decision, rather it is requesting an interpretation of OPM regulations and Comptroller General decisions. According to the agreement, such issues are to be sent to the agency's compensation specialist for resolution.

Accordingly, OPM cannot assert jurisdiction over, or issue a decision concerning, this matter. This settlement is final. No further administrative review is available within the Office of Personnel Management. Nothing in this settlement limits the claimant's right to bring an action in an appropriate United States Court.