Washington, DC

U.S. Office of Personnel Management
Fair Labor Standards Act Decision
Under section 204(f) of title 29, United States Code

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Robert D. Hendler
Classification and Pay Claims
Program Manager
Merit System Audit and Compliance


10/27/2010

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Date

As provided in section 551.708 of title 5, Code of Federal Regulations (CFR), this decision is binding on all administrative, certifying, payroll, disbursing, and accounting officials of agencies for which the U.S. Office of Personnel Management (OPM) administers the Fair Labor Standards Act (FLSA).  The agency should identify all similarly situated current and, to the extent possible, former employees, and ensure that they are treated in a manner consistent with this decision.  There is no right of further administrative appeal.  This decision is subject to discretionary review only under conditions and time limits specified in 5 CFR 551.708 (address provided in section 551.710).  The claimant has the right to bring action in the appropriate Federal court if dissatisfied with the decision.

Introduction

On April 1, 2010, the U.S. Office of Personnel Management’s (OPM) Merit System Audit and Compliance received a Fair Labor Standards Act (FLSA) claim from Ms. Helena L. Woodard concerning her employment in a Program Support Assistant, GS-303-7, position on the Community Based Outpatient Clinic Team, Associate Director for Finance, PVAMC, VA, in Philadelphia, Pennsylvania.  The claimant seeks “reimbursement for all time that [she] worked, liquidated damages, and if allowed Punitive [sic] damages.”  She describes the time at issue as:

Compensatory time worked, approved by immediate supervisor; later disapproved by Associate Director from March 2009 to March 2010.  Also, time worked from home performing work related duties.  Time worked from home during inclement weather….Time worked on a holiday from home which was approved by immediate supervisor who after allowing me to work—denied he approved it…I would like to be compensated for all hours worked from home.  My supervisor was aware that I was working from home.

In reaching our FLSA decision, we have carefully considered all information furnished by the claimant and additional documentation we received from her agency on July 9, 2010.

Jurisdiction

Although OPM has the authority to adjudicate FLSA claims for many Federal employees, OPM cannot take jurisdiction over FLSA claims of Federal employees that are or were subject to a negotiated grievance procedure (NGP) under a collective bargaining agreement (CBA) between the employee’s agency and labor organization for any time during the claim period, unless that matter is or was specifically excluded from the agreement’s NGP.  The Federal courts have found Congress intended such a grievance procedure to be the exclusive administrative remedy for matters not excluded from the grievance process.  Carter v. Gibbs, 909 F.2d 1452 (Fed. Cir. 1990) (en banc), cert. denied, Carter v. Goldberg, 498 U.S. 811 (1990); Mudge v. United States, 308 F.3d 1220 (Fed. Cir. 2002).  Section 7121(a)(1) of 5 U.S.C. mandates the grievance procedures in negotiated CBAs be the exclusive administrative procedures for resolving matters covered by the agreements.  Accord, Paul D. Bills, et al., B-260475 (June 13, 1995); Cecil E. Riggs, et al., 71 Comp. Gen. 374 (1992).

The claimant states:

I am not a paying member of AFGE Local 1793 nor was I at any time during the period I am claiming.  I am covered under the Master Agreement’s negotiated grievance procedure, but the procedure excludes FLSA from the scope of the negotiated grievance procedures.

Union membership status is not germane to determining claims settlement jurisdiction.  Contrary to the claimant’s assertion, the CBA between VA and the American Federation of Government Employees (AFGE) National Veterans Affairs Council of Locals in effect during the period of the claim does not specifically exclude FLSA overtime pay issues from the NGP (Article 42) covering the claimant.  Therefore, the claimant’s FLSA claim must be construed as covered by the NGP the claimant was subject to during the claim period and OPM has no jurisdiction to adjudicate this claim.[1]

Decision

The claim is denied based on lack of jurisdiction.

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