Office of Merit Systems Oversight and Effectiveness

Date: April 1, 2002
File Number: [02-0008]
Matter of: [Claimant]

OPM Contact:

In accordance with 5 CFR 178.102(b), the agency forwarded a claim to the Office of Personnel Management (OPM) on behalf of the claimants. The claimants are requesting that the effective dates of their promotions be changed from the period of 1998 to 1995, and that they receive back pay for the claim period. The agency received the claim on June 15, 1999, and OPM received the claim on January 23, 2002. We acknowledged receipt of the claim on January 23, 2002. For the reasons stated below, we do not have jurisdiction to consider this claim.

Based on the information provided by the agency, the claimants were members of a bargaining unit during the time of the claim. The claimants' issues, retroactive promotion and back pay, were not excluded from the negotiated grievance procedures under the agency's collective bargaining agreement. See Article 17, Section 3, of the Agreement between [the agency] and the National Association of Government Employees, Local [#].

OPM cannot take jurisdiction over the claim of Federal employees that are or were 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. This is because 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 1452, 1454-55 (Fed. Cir. 1990). That Act 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). According, 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. Nothing in this settlement limits the claimant's right to bring an action in an appropriate United States Court.