Washington, DC

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

---

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


01/26/2010

---

Date

Introduction

On September 21, 2009, the U.S. Office of Personnel Management’s (OPM) former Center for Merit System Accountability, now Merit System Audit and Compliance, received an FLSA claim from Kevin A. Murphy.  The claimant requests the FLSA exemption status of his position be changed from exempt to nonexempt. 

In reaching our FLSA decision, we have carefully reviewed all information furnished by the claimant and his agency, which we contacted for the sole purpose of ascertaining our jurisdiction in this matter.

Jurisdiction

OPM has authority to adjudicate FLSA claims for Federal employees under the provisions of section 204(f) of title 29, United States Code (U.S.C.).  However, OPM cannot take jurisdiction over the FLSA claims of Federal employees who are or were subject to a negotiated grievance procedure (NGP) under a collective bargaining agreement (CBA) between the employee’s agency and labor union 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, 1454-55 (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 grievance procedures in negotiated CBAs are to 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).

Section 551.703(a) of title 5, Code of Federal Regulations (CFR) codifies this jurisdictional limitation: 

Negotiated grievance procedure (NGP) as exclusive administrative remedy.  If at any time during the claim period, a claimant was a member of a bargaining unit covered by a collective bargaining agreement that did not specifically exclude matters under the Act from the scope of the NGP, the claimant must use that NGP as the exclusive administrative remedy for all claims under the Act.  There is no right to further administrative review by the agency or by OPM.  The remaining sections in this subpart (that is, §§551.704 through 551.710) do not apply to such employees.

Information provided by the claimant’s servicing human resources office at our request confirms the claimant was in a bargaining unit position during the period of his claim.  The CBA between the Veterans Administration Marketing Center (the former name of the Veterans Administration National Acquisition Center) and the General Service Employees Union, Local 73, of the Service Employees International Union covering the claimant at the time of the claim, is silent on and therefore does not specifically exclude FLSA issues from the NGP (Article XIII).  Therefore, the claimant’s FLSA claim must be construed as covered by this NGP.  Accordingly, OPM has no jurisdiction to adjudicate the claimant’s FLSA claim.

Decision

The claim is denied for lack of jurisdiction.

Back to Top