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


04/10/2014

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Date

Introduction

The claimant is employed as an Immigration Enforcement Agent, GL-1801-9, with Immigration and Customs Enforcement (ICE).  The claimant asserts she is owed compensation for additional hours worked beyond her regular duty hours in connection with official travel and requests "45 Act" overtime pay.  This is an apparent reference to the overtime pay provisions of title 5, United States Code (U.S.C.), which codifies the Federal Employees Pay Act of 1945.  We received the claim on February 6, 2014.

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.  Although the claimant is requesting overtime pay under title 5, U.S.C., additional documentation we obtained in connection with her claim indicates she is designated as nonexempt from the overtime pay provisions of the FLSA. 

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 her request does not show she has filed a signed, written claim with the ICE component authorized to issue an agency-level decision or that she has received such a decision.  Nevertheless, we may render a decision on any part of her claim reviewable under 31 U.S.C. 3702(a)(2) in its entirety based on lack of jurisdiction as addressed in the following paragraph.  We also deny any portion of this claim potentially reviewable under section 204(f) of 29 U.S.C.,  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 obtained by OPM (i.e., Standard Form 50 showing the bargaining unit status in block 37) shows that the claimant occupies a bargaining unit position.  The Agreement 2000 between the U.S. Immigration and Naturalization Service[1] and the National Immigration and Naturalization Service Council covering the claimant does not specifically exclude compensation issues from the NGP (Article 47).  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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