Washington, DC

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

Compensation Claim Decision
Under section 3702 of title 31, United States Code

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Robert D. Hendler
Classification and Pay Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance


03/10/2014

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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).  This decision is subject to discretionary review only under conditions and time limits specified in 5 CFR 551.708.  The claimant has the right to bring action in the appropriate Federal court if dissatisfied with the decision.

Those aspects of this decision reviewed under the authority of 31 U.S.C. 3702(a)(2) and 5 CFR part 178 are not subject to further administrative review. 

Introduction

On December 3, 2013, the U.S. Office of Personnel Management’s (OPM) Merit System Accountability and Compliance received this claim, forwarded to OPM by the U.S. Department of Labor's Civil Rights Center (CRC) on the claimant's behalf.  The claimant is a current employee of the U.S. Department of Veterans Affairs (VA) at the Veterans Affairs Medical Center in Northport, New York.  The handwritten claim is illegible but a written summary by CRC of their telephone calls with the claimant, which they included with the claim, indicate the claimant raised the issues of not having received a promotion, being subjected to retaliation for having filed complaints with the Equal Employment Opportunity Commission, "working overtime and then not having these hours paid correctly," and "deductions being made to his paycheck that he does not remember having authorized."  

Jurisdiction

OPM settles Federal civilian employee compensation and leave claims under the provisions of section 3702(a)(2) of title 31, United States Code (U.S.C.), and part 178 of title 5, Code of Federal Regulations (CFR), and Fair Labor Standards Act (FLSA) claims under the provisions of section 204(f) of title 29 U.S.C., and 5 CFR part 551, subpart G. 

There is insufficient information to determine if the deductions taken from the claimant’s paycheck would be potentially reviewable by OPM under the provisions of 31 U.S.C. 3702(a)(2).  However, section 178.102(a) of 5 CFR indicates that the claimant’s employing agency must review and issue a written decision on a compensation claim before it is submitted to OPM for adjudication.  The claimant is responsible for preserving the claim period by proving the signed, written claim was filed within the applicable statute of limitations.  See 5 CFR 178.104.  The information provided by the claimant with his request does not show he has filed a signed, written claim with the VA component authorized to issue an agency-level decision or that he has received such a decision.  Nevertheless, we may render a decision on any part of his claim reviewable under 31 U.S.C. 3702(a)(2) in its entirety based on lack of jurisdiction as addressed in the following paragraph.  The claimant’s assertion of having worked unpaid overtime, reviewable under section 204(f) of 29 U.S.C., is also denied based on lack of jurisdiction as addressed in the following paragraph.

Section 7121(a)(1) of 5 U.S.C. directs 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, leave, or FLSA 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) and 5 CFR 551.703(a).   

Information provided by the agency (i.e., Standard Form 50 showing the bargaining unit status in block 37) shows that the claimant occupies a bargaining unit position.  The Master Agreement between the Department of Veterans Affairs and the American Federation of Government Employees covering the claimant does not specifically exclude compensation issues from the NGP (Article 43).  Therefore, these claims must be construed as covered by the NGP the claimant was subject to during the claim period and OPM has no jurisdiction to adjudicate these claims.

The claims jurisdiction authority of OPM under 31 U.S.C. 3702(a)(2) and the FLSA is narrow and limited to consideration of whether the applicable statutes and regulations have been properly interpreted and applied in determining whether monies are owed for the stated claim.  It does not extend to complaints of not having received a promotion or allegations of retaliation. 

Decision

The claim is denied based on lack of jurisdiction.

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