Office of the General Counsel

Date: July 30, 1999
Matter of: [xxx]
File Number: S003139

OPM Contact: Murray M. Meeker

The claimant, an employee of the [agency] claims back pay for duties that he performed during the period from October 1990 through September 1993. For the reasons discussed herein, the claim is dismissed for lack of jurisdiction.

DLA has advised the Office of Personnel Management (OPM) that during the period covered by his claim, the claimant was a member of a bargaining unit represented by Local [xxx] of the National Federation of Federal Employees (NFFE), and that the collective bargaining agreement between NFFE and DLA included a negotiated grievance procedure which did not exclude the matter at issue in this claim.

OPM cannot take jurisdiction over a claim that is or was subject to a negotiated grievance procedure under a collective bargaining agreement unless that matter is or was specifically excluded from the agreement's grievance procedure. The courts have found that Congress intended that such a grievance procedure is to be the exclusive remedy for matters not excluded from the grievance process. Carter v. Gibbs, 909 F.2d 1425, 1453 (Fed. Cir. 1990) (en banc) (In enacting 5 U.S.C.  7121(a), Congress intended that the negotiated grievance procedure was to be the exclusive remedy for matters not excluded from the grievance process), cert. denied, 498 U.S. 811 (1990). Accord, Harris v. United States, 841 F.2d 1097 (Fed. Cir. 1988) and Cecil E. Riggs et al., B-222962.3, April 23, 1992. Accordingly, the claim is denied for lack of jurisdiction.

This settlement is final. No further administrative review is available within OPM. Nothing in this settlement limits the employee's right to bring an action in an appropriate United States Court.