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


03/26/2013

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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).  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 5 CFR 551.710).  The claimant has the right to bring action in the appropriate Federal court if dissatisfied with the decision.

Introduction

On January 31, 2013, the U.S. Office of Personnel Management’s (OPM) Merit System Audit and Compliance received a Fair Labor Standards Act (FLSA) claim from Mr. James P. Akin who  states:  

Until May 2012, I was erroneously classified under FLSA and received the wrong pay for overtime work performed.  The agency corrected my FLSA classification at that time but didn’t reimburse back pay for the overtime while classified incorrectly.

The claimant states that on January 11, 2013, his agency and local union, the American Federation of Government Employees Local 916, jointly presented him a Settlement Agreement which provided for payment in the amount of $744.26 to settle any and all pay issues “cognizable as of the date of [his] signature” under the FLSA.  The claimant disagrees with the  amount offered, stating the “offer had nothing to do with the overtime [he] had worked,” and filed a claim with OPM to compensate him back pay for overtime allegedly worked while misclassified as FLSA exempt.                        

We have accepted and decided this claim under Section 4(f) of the FLSA of 1938, as amended (29 United States Code (U.S.C.) § 204(f)).

In reaching our FLSA decision, we have carefully considered all information of record, including that furnished by the claimant and his employing agency.

Jurisdiction

OPM’s adjudication authority, under the provisions of 29 U.S.C. § 204(f), is an administrative remedy, not a judicial remedy.  See 5 CFR part 551, subpart G.  Section 7121(a)(1) of title 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 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 551.703(a).

The claimant acknowledges his bargaining unit status as he plainly states in his claim request: “I am and always have been a member of a collective bargaining agreement.”  The CBA between AFGE Council No. 214 and Air Force Material Command covering the claimant and in effect during the period of the claim does not specifically exclude FLSA overtime pay issues from the NGP (Article 6) 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 or intervene in this matter as the claimant appears to ask. 

Decision

The claim is denied based on lack of jurisdiction.

 

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