Office of the General Counsel

Date: October 1, 1999
Matter of: [xxx]
File Number: S003569

OPM Contact: Murray M. Meeker

The claimants, a retired and a current employee at the [agency], claim entitlement to hazardous differential pay. However, the Office of Personnel Management (OPM) has been advised that the claimants were or are members of a collective bargaining unit. OPM cannot take jurisdiction over the claim of a federal employee on a matter that is subject to a negotiated grievance procedure under a collective bargaining agreement between the employee's agency and union unless that matter is or was specifically excluded from the agreement's grievance procedure. 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); 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.