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

08/19/2013

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Date

On February 21, 2013, the U.S. Office of Personnel Management’s (OPM) Merit System Audit and Compliance received a Fair Labor Standards Act (FLSA) claim from Ms. Joanna Kearns 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 her agency and local union, the American Federation of Government Employees Local 916, jointly presented her a Settlement Agreement which provided for payment in the amount of $658.47 to settle any and all pay issues “cognizable as of the date of [her] signature” under the FLSA.  The claimant disagrees with the amount offered, stating the “offer had nothing to do with the overtime [she] had worked,” and filed a claim with OPM “for all money [she] was not paid while [her] FLSA status was incorrect along with all penalties, interest and any other monies owed to [her] by law or statute” 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 her 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 her bargaining unit status as she plainly states in her claim request: “I am and always have been a member of a collective bargaining agreement.”  However, she also states she “was not covered by a negotiated grievance procedure [NGP] during the period of this claim.”  The claimant is incorrect regarding her coverage by an NGP.  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.  As is clear in Muniz v. United States, 972 F.2d 1304 (Fed. Cir. 1992), the fact that the claimant is no longer employed by the Tinker Air Force Base does not remove the Civil Service Reform Act’s jurisdictional bar for claims covered by the CBA arbitration and grievance procedures that arose during and from her employment with Tinker Air Force Base.[1]

Decision

The claim is denied based on lack of jurisdiction.

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