B-222926.3, Apr 23, 1992, 71 Comp.Gen. 374

CIVILIAN PERSONNEL - Compensation - Arbitration decisions - GAO review Applying the exclusivity provision of the Civil Service Reform Act, 5 U.S.C. Sec. 7121(a), as construed in Carter v. Gibbs, 909 F.2d 1452 (Fed. Cir. 1990), GAO will no longer take jurisdiction of federal employee claims on matters which are subject to negotiated grievance procedures under collective bargaining agreements. Carter and related judicial decisions interpret 7121(a), which provides that such procedures shall be the exclusive means of resolving grievances falling within the agreement's coverage, as precluding judicial remedies for matters that have not been excluded from the negotiated grievance procedure. This interpretation applies equally to our general claims settlement jurisdiction under 31 U.S.C. Sec. 3702 and our jurisdiction under 31 U.S.C. Sec. 3529 to issue decisions to federal agency officials on proposed payments involving employee claims. Our decisions AFGE Local 2413, 67 Comp.Gen. 489 (1988), and Samuel R. Jones, 61 Comp.Gen. 20 (1981), are hereby overruled.

Cecil E. Riggs, et al.-- Claims on Matters Subject to a Negotiated Grievance Procedure-- GAO Jurisdiction:

This decision is in response to a request from the National Federation of Federal Employees (NFFE), Washington, D.C., on behalf of 14 firefighters /1/ employed at Tyndall Air Force Base, Florida, who seek compensation under the Fair Labor Standards Act (FLSA) for "on duty" work time at roll calls. The request was submitted pursuant to our procedures for decisions on appropriated fund activities that are of mutual concern to agencies and labor organizations. See 4 C.F.R. Part 22 (1991). For the reasons that follow, we decline to take jurisdiction in this matter. BACKGROUND

The firefighters are required to report 5 minutes before or 5 minutes after their regular shift each day for a roll call and inspection of protective clothing. They claim FLSA overtime compensation for this time, plus interest, retroactive to May 29, 1986, when the roll call requirement was instituted.

Two of the claimants, Cecil E. Riggs and Joseph P. Spalding, together with 5 nonbargaining unit firefighters, brought an action on this same issue in the United States Claims Court. In Cecil E. Riggs, et al., No. 131-89C, filed October 23, 1990, the Claims Court held that it lacked jurisdiction over the claims of Messrs. Riggs and Spalding. The court relied on the so-called "exclusivity" provision of the Civil Service Reform Act, 5 U.S.C. Sec. 7121(a) (1988), which makes collective bargaining grievance procedures the exclusive means for resolving disputes falling within their coverage.

The Claims Court determined that Messrs. Riggs and Spalding had been members of the bargaining unit throughout the period in question, and that the collective bargaining agreement did not specifically exclude FLSA overtime issues from the negotiated grievance procedures. Therefore, the court concluded that the only course of action available to Messrs. Riggs and Spalding was through the negotiated grievance procedure. In so construing 5 U.S.C. Sec. 7121(a), the Claims Court followed the holding of the Court of Appeals for the Federal Circuit in Carter v. Gibbs, 909 F.2d 1452, cert. denied, 111 S. Ct. 46 (1990). /2/

In the present claim, the same issues that were considered by the Claims Court have been raised again by 12 firefighters who had not joined in the court action, as well as Messrs. Riggs and Spalding. The Air Force reports that all of the firefighters are members of the bargaining unit and none has filed a grievance under the negotiated grievance procedure.

The NFFE contends that, since the matter is no longer pending in the courts, since 12 of the firefighters were not plaintiffs in Riggs, and since the Claims Court did not take jurisdiction of the claims of Messrs. Riggs and Spalding, the Riggs case presents no bar to a decision by the Comptroller General. /3/ The Air Force argues that consideration of these claims by the Comptroller General, outside of the negotiated grievance procedure, conflicts with 5 U.S.C. Sec. 7121(a). The Air Force asserts that our Office should follow the rationale of the Federal Circuit Court of Appeals in Carter v. Gibbs, supra, and decline jurisdiction in this matter.

OPINION

We have previously considered issues concerning the exclusivity of negotiated grievance procedures vis-a-vis the jurisdiction of our Office. In Samuel R. Jones, 61 Comp.Gen. 20 (1981), we held that the mere existence of a negotiated grievance procedure does not preclude the Comptroller General from considering a claim filed under 4 C.F.R. Part 31, which implements our general authority in 31 U.S.C. Sec. 3702 (1988) to "settle all claims of or against the United States Government," so long as the claim is based on law, regulation, or other authority which exists independent of the collective bargaining agreement. See also AFGE Local 2413, 67 Comp.Gen. 489 (1988).

Likewise, our regulations at 4 C.F.R. Part 22, supra, under which NFFE submitted the present request, provide for the issuance of Comptroller General decisions concerning the legality of appropriated fund expenditures on matters of mutual concern to federal agencies and labor organizations. These regulations are grounded in our authority under 31 U.S.C. Sec. 3529 (1988) to issue decisions to federal agency heads and accountable officers. While the regulations generally provide that we will not issue decisions or comment on matters which are subject to a negotiated grievance procedure under 5 U.S.C. Sec. 7121, exceptions are made for requests submitted by authorized certifying or disbursing officers, and for requests submitted jointly by a federal agency and a labor organization. See 4 C.F.R. Sec. 22.7(b).

Our decisions and regulations cited above, however, pre-date the Federal Circuit's decision in Carter v. Gibbs, supra, and similar judicial decisions which take a broader view of the exclusivity of negotiated grievance procedures under 5 U.S.C. Sec. 7121(a).

With respect to exclusivity, the Civil Service Reform Act provides at 5 U.S.C. Sec. 7121:

"(a)(1) Except as provided in paragraph (2) of this subsection, any collective bargaining agreement shall provide procedures for the settlement of grievances, including questions of arbitrability. Except as provided in subsections (d) and (e) of this section, the procedures shall be the exclusive procedures for resolving grievances which fall within its coverage.

"(2) Any collective bargaining agreement may exclude any matter from the application of the grievance procedures which are provided for in the agreement."

Subsections (d) and (e) specify certain matters, such as discrimination complaints and disciplinary actions, with respect to which an aggrieved employee may elect to pursue a remedy other than the negotiated grievance procedure, but not both that remedy and the grievance procedure.

The Federal Circuit in Carter v. Gibbs, 909 F.2d at 1454-55, construed this statutory language as unambiguously requiring that the grievance procedure under the collective bargaining agreement be the exclusive means of resolving grievances falling within the coverage of the agreement-- i.e., all matters not specifically excluded pursuant to subsection (a)(2)- - except for those matters otherwise provided for under subsection (d) or (e). Since FLSA matters were not excluded from the agreement and were not otherwise provided for in subsections (d) and (e), the court held that FLSA matters were committed exclusively to the grievance procedure.

In addition to relying on the statutory language, the court cited several Supreme Court decisions, including United States v. Fausto, 484 U.S. 439 (1988), and Bush v. Lucas, 462 U.S. 367 (1983), for the proposition that the Civil Service Reform Act's comprehensive, integrated scheme of administrative and judicial review bars access to the courts beyond that granted by the Act. 909 F.2d at 1455-56. The court also rejected the argument that its interpretation of the Act's exclusivity provision amounted to an implied repeal of the remedies afforded to federal employees under the FLSA. Rather, the court noted that since the bargaining unit employees chose not to exclude FLSA matters from the collective bargaining agreement, they had effectively elected to accept the negotiated grievance procedures over other FLSA remedies. Thus, the court observed:

"Properly put, the question here is not whether the CSRA implicitly repealed section 16 of the FLSA; it is whether an additional exception to CSRA section 7121(a)(1)'s exclusivity provision should be implied, an exception allowing review of overtime claims both in the courts and through the negotiated procedures. The answer is no." 909 F.2d at 1455.

Similarly, the courts have held that 5 U.S.C. Sec. 7121(a) precludes their exercise of Tucker Act jurisdiction /4/ over other types of pay claims by federal employees which are covered by negotiated grievance procedures. See Harris v. United States, 841 F.2d 1097 (Fed. Cir. 1988); Adams v. United States, 20 CL.CT. 542 (1990); Adkins v. United States, 16 CT.CL. 294 (1989).

We have carefully considered the rationale adopted by the courts in holding that under 5 U.S.C. Sec. 7121(a) negotiated grievance procedures provide the exclusive remedy for members of a collective bargaining unit with respect to matters covered by the collective bargaining agreement. We conclude that the same rationale applies to the claims settlement jurisdiction of our Office under 31 U.S.C. Sec. 3702 and our jurisdiction under 31 U.S.C. Sec. 3529 to issue decisions to agency officials with respect to employee claims pending before them. Thus, we see no basis to view our authority to adjudicate claims of federal employees under these statutory provisions as an exception to 5 U.S.C. Sec. 7121(a) any more than the statutory remedies such as FLSA and the Tucker Act which the courts have held not to be excepted from section 7121(a).

As pointed out by the Air Force in its report, we have followed court decisions that have impacted on previous decisions of our Office. See Federal Firefighters, 68 Comp.Gen. 681 (1989), wherein we agreed to follow the decision in Lanehart v. Horner, 818 F.2d 1574 (Fed. Cir. 1987), as to FLSA overtime and the leave statutes; Turner Caldwell-- Reconsideration in view of Wilson v. United States, 61 Comp.Gen. 408 (1982). We also believe that following Carter v. Gibbs is consistent with our general policy against taking jurisdiction where to do so would unduly interfere with the grievance process. NFFE Local 1437, B-220119, Dec. 9, 1985; 4 C.F.R. Secs. 22.7(b), 22.8 (1991).

Therefore, we will follow Carter v. Gibbs and related decisions, and we will no longer accept a request for a decision from members of a collective bargaining unit on a matter that is not specifically excluded in the collective bargaining agreement. Our decisions AFGE Local 2413, and Samuel R. Jones, supra, are overruled. We intend to amend the provisions of title 4 of the Code of Federal Regulations that relate to our consideration of claims and requests for decisions under 31 U.S.C. Secs. 3529 and 3702 in order to reflect the result reached here.

We will, of course, still accept requests for a decision under 4 C.F.R. Part 31 with respect to federal employees who are not covered by a collective bargaining agreement, and with respect to bargaining unit employees in those instances where the collective bargaining agreement specifically excludes the issue we are asked to consider from the negotiated grievance procedure. We will also continue to accept requests for decisions from federal agency officials on issues of general application which do not involve specific employee claims.

/1/ Cecil E. Riggs, Joseph P. Spalding, James Hunbley, Jeffrey D. Cochran, James C. Phillips, George W. Allen, Kenneth Crowe, David N. Loncaric, Daniel S. Jones, Timothy M. Johnston, Jeffry K. Hogberg, Horace E. Lewis, Lewie H. Hartzog, and William H. Hartzog.

/2/ The Claims Court granted summary judgment against the 5 nonbargaining unit plaintiffs in Riggs, holding that the roll call periods did not constitute compensable overtime under the FLSA.

/3/ Because we dispose of this matter on jurisdictional grounds, we will not address the arguments of the NFFE and the Air Force concerning the merits of the FLSA claims.

/4/ See 28 U.S.C. Secs. 1346 1491.