Washington, DC
U.S. Office of Personnel Management
Fair Labor Standards Act Decision
Under section 204(f) of title 29, United States Code
John D. Dingell Medical Center
U.S. Department of Veterans Affairs
Detroit, Michigan
Damon B. Ford
Acting Classification Appeals and FLSA Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
08/27/2021
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). 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
The claimant is employed as a Registered Respiratory Therapist GS-0601-11, with the Respiratory Care Department, John D. Dingell Medical Center, Department of Veterans Affairs (VA), in Detroit, Michigan. The claimant believes his agency incorrectly changed his FLSA status from nonexempt to exempt in connection with his March 14, 2021, increase in grade from GS-08 to GS-11. He wishes to “file a complaint” with OPM and asks that “[his] FLSA status be reverted to nonexempt and that [he] receive lost overtime wages due to [him] from the March 14, 2021, change”.
OPM received the claim on July 19, 2021. We have accepted and decided this claim under section 4(f) of the FLSA of 1938, as amended, codified at section 204(f) of title 29, United States Code (U.S.C.). In reaching our FLSA decision, we have carefully considered all information furnished by the claimant. For the reasons discussed below, the claimant’s request is denied.
Jurisdiction
Section 7121(a)(1) of title 5, U.S.C., states 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 claimant (i.e., Standard Form 50, dated March 14, 2021 showing the claimant’s bargaining unit status in block 37) indicates that he 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, and in effect during the period of the claim, does not specifically exclude FLSA overtime pay issues 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.
Decision
This claim is denied based on lack of jurisdiction.