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
Buffalo, New York
Robert D. Hendler
Classification and Pay Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
03/13/2015
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 section 551.710). 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
Introduction
On September 30, 2014, 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 Wage and Hour Division on the claimant’s behalf. The claimant is a current employee of the U.S. Department of Homeland Security (DHS) with the U.S. Customs and Border Protection in Buffalo, New York. The claimant asserts she is owed compensation for “years of being shorted in my pay from 2005 through 2013.” Although she identifies her claim as an “unpaid wage claim” and cites the Fair Labor Standards Act (FLSA) in relation to its overtime provisions, she does not appear to assert that she worked unpaid overtime hours and has not provided any specific information regarding any overtime hours for which she was not paid.[1]
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.
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 DHS 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. Although there is insufficient information to determine if the issues raised by the claimant would be potentially reviewable by OPM under the provisions of 29 U.S.C. 204(f), and 5 CFR part 551, subpart G, any such claim 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 claimant (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 DHS, U.S. Customs and Border Protection, and the National Treasury Employees Union covering the claimant does not specifically exclude compensation issues from the NGP (Article 27). 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.
The claims jurisdiction authority of OPM under 31 U.S.C. 3702(a)(2) is limited to consideration of whether the applicable statutes and regulations have been properly interpreted and applied in determining if monies are owed for the stated claim. It does not extend to complaints regarding being “passed over for promotions and denied transfers” as the claimant appears to believe.
Decision
The claim is denied based on lack of jurisdiction.
[1] Contrary to the claimant’s assertion, the FLSA does not “protect her right to earn the correct amount per GS level” but rather is limited to issues of overtime, minimum wage, and child labor.