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
Agency Compliance and Evaluation
Merit System Accountability and Compliance

05/22/2014

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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.

Introduction

The claimant asserts he is filing a claim against his agency for a “personnel action violation of FLSA and Title 5 U.S. Code, not compensate for overtime while on travel authorized by agency” because he is “made to take Travel comp for overtime.”   We received the claim on November 13, 2012. 

We have accepted and decided this claim under section 4(f) of the Fair Labor Standards Act (FLSA), as amended, codified at section 204(f) of title 29, United States Code (U.S.C.)

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 FLSA claims under the provisions of section 204(f) of title 29 U.S.C., and 5 CFR part 551, subpart G.  Documentation submitted by the claimant and confirmed by receipt of a Standard Form 50 (SF-50) from the agency shows the claimant is designated as nonexempt from the overtime pay provisions of the FLSA, which means, generally speaking, the FLSA applies to his position.  Therefore, his claim is potentially reviewable under the provisions of 29 U.S.C. § 204(f), and 5 CFR part 551, subpart G, and not under the provisions of 31 U.S.C.§ 3702(a)(2).

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 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 obtained by OPM (i.e., SF-50 showing the bargaining unit status in block 37) shows the claimant occupies a bargaining unit position.  The Agreement between the U.S. Army Soldier and Biological Chemical Command, U.S. Army Research Institute of Chemical Defense, and the International Association of Machinists and Aerospace Workers, National Federation of Federal Employees, Federal District 1, Local 178, covering the claimant during the period of the claim does not specifically exclude compensation issues from the NGP (Article 25).  Therefore, this 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.

Decision

The claim is denied based on lack of jurisdiction.

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