B-240908.2, May 28, 1991

CIVILIAN PERSONNEL - Compensation - Claim settlement - Forum election DIGEST: The Chairman, Committee on Post Office and Civil Service, House of Representatives, requests our views concerning certain pay practices of the National Weather Service (NWS) in view of Gahagan v. United States, 19 Cl.Ct. 168 (1989), which allegedly held such practices to be illegal. The Chairman is advised that Gahagan was effectively overruled by Carter v. Gibbs, 909 F.2d 1452 (Fed. Cir. 1990), which held that matters which can be resolved through the negotiated grievance and arbitration procedures should not be heard in another forum unless there is a clear explicit exclusion in the collective bargaining agreement. There is no clear explicit exclusion of these pay claims in the parties' agreement. In view of Carter v. Gibbs, we believe these claims should be considered under the negotiated grievance procedure.

The Honorable William L. Clay

Chairman, Committee on Post Office and Civil Service:

We refer to a letter from former Chairman William D. Ford, dated August 27, 1990, which in turn enclosed a letter from Representative Gary L. Ackerman, Chairman, Subcommittee on Compensation and Employee Benefits, concerning certain premium pay practices of the National Weather Service (NWS). The letter requests that we review the issues described in the enclosed correspondence and provide our findings to the Committee.

The correspondence pertains to 27 NWS employees who are employed as meteorologists and meteorological technicians at various NWS facilities, and who work rotating shifts. The employees allege that NWS rescheduled them from premium pay shifts to nonpremium pay shifts in advance of holidays and military and court leave. They contend that they were thus deprived of premium pay and that such practice was held to be illegal in Gahagan v. United States, 19 Cl.Ct. 168 (1989).

The Claims Court held in Gahagan that the NWS could not reduce employees' regularly scheduled pay based solely upon leave for court duty or military service. The Claims Court also held that NWS could not reschedule its employees solely because of the occurrence of holidays in the absence of a determination that such scheduling was necessary to reduce substantial costs or to preserve the agency's mission. Apparently, since Gahagan the NWS has ceased those practices, but it has only reimbursed the four plaintiffs named in that lawsuit.

In Carter v. Gibbs, 909 F.2d 1452 (Fed. Cir. 1990). cert. denied, 111 S. Ct. 46 (1990), the Federal Circuit Court of Appeals struck down the jurisdictional basis on which Gahagan was considered by the Claims Court. The Court of Appeals held that matters which can be resolved through grievance and arbitration procedures established in negotiated collective bargaining agreements between federal employees and their agencies cannot be heard in another forum unless there is an explicit exclusion of the matter from those procedures in the collective bargaining agreement. This principle was subsequently applied specifically to the NWS in Ackerman v. United States, 21 Cl.Ct. 484, Oct. 2, 1990, where the Claims Court dismissed a Fair Labor Standards Act claim brought by NWS employees for lack of jurisdiction because the subject matter was not specifically excluded from the employees' negotiated grievance procedures.

The Department of Commerce has advised us that the current collective bargaining agreement between the NWS employees organization and the NWS contains a negotiated grievance procedure and that this agreement does not exclude pay claims. The Department has further advised us that, while counsel for the employees association has requested payment on behalf of the 27 employees, claims on behalf of the employees have never been filed. According to Commerce, it is prepared to look at the specific circumstances of each of the employees. If some of the claims are found not to be subject to adjudication exclusively through the negotiated grievance procedure, then they will be considered for payment, assuming there are no other barriers to doing so. However, the Department will insist that any claims which are cognizable under the negotiated grievance procedures (including the timeliness requirements of that process) be pursued through that process.

In this regard, the Department of Commerce has raised the issue of Carter v. Gibbs and, since the collective bargaining agreement between the NWS and the union does not exclude pay claims, Commerce urges that we defer to the grievance process. In view of Carter v. Gibbs, we believe these claims must be considered under the negotiated grievance procedure.

If the claims are not satisfactorily resolved under the grievance procedure, the union may invoke binding arbitration under 5 U.S.C. Sec. 7121(b) (1988). Further appeal rights are governed by 5 U.S.C. Sec. 7122 (review by Federal Labor Relations Authority) and sec. 7123 (judicial review).

We trust this information serves the purpose of your inquiry.