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


08/08/2013

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Date

Introduction

On March 15, 2013, the U.S. Office of Personnel Management’s (OPM) Merit System Accountability and Compliance received a Fair Labor Standards Act (FLSA) claim from the claimant's representative seeking back pay, front pay, and attorney’s fees for “basing overtime pay on the 40-hour work week instead of computing overtime pay based on working over 8 hours in a day” resulting from his placement on a “First 40 Tour of Duty” beginning in October 2009 and for “violation of 5 C.F.R. 551.531 compensatory time off.”

We have accepted and decided his claim under section 4(f) of the FLSA, as amended, codified at section 204(f) of title 29, United States Code (U.S.C.).  In reaching our FLSA decision, we have carefully considered all information furnished by the claimant’s representative and additional documentation we received from his agency on May 21, 2013.

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.).  OPM’s adjudication authority is an administrative remedy, not a judicial remedy.  See 5 CFR part 551, subpart G.  Section 7121(a)(1) of title 5, United States Code, 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's representative states the claimant “has filed grievances with the United States Marshals Service” and that “[o]n March 12, 2013, complainant received a decision from the Human Resource Division of the United States Marshal [sic] Service” which “denied his Step 3 grievance stating that it lacks merit.”  The representative states the claimant “was not a member of a collective bargaining unit at any time during the claim period.”  Union membership is not germane to determining claims settlement jurisdiction.  What is germane in determining jurisdiction is that the claimant occupied a bargaining unit position covered by a CBA during the period of the claim. Information provided by the agency at our request shows the claimant occupies a bargaining unit position. The CBA between the U.S. Marshals Service and the American Federation of Government Employees, International Council of U.S. Marshals Service Locals, C-210, covering the claimant and in effect during the period of the claim, does not specifically exclude FLSA overtime pay or compensatory time issues from the NGP (Article 20) 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.

Decision

The claim is denied based on lack of jurisdiction.

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