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49 FLRA No. 40

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

BALTIMORE, MARYLAND

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

(Union)

0-AR-2507

_____

DECISION

March 10, 1994

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Henry L. Segal filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition to the Agency's exceptions.

The Union filed grievances on behalf of various employees to protest the Agency's decision to exempt those employees from coverage under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq. The Arbitrator ruled that the Agency had improperly designated certain of the grievants as exempt from coverage under the FLSA on the ground that they are bona fide administrative employees. The Arbitrator ordered the Agency to treat those grievants as covered under the FLSA and to pay them backpay with either interest or liquidated damages for overtime pay to which they were entitled. He denied the grievances of those employees he found were properly designated as exempt from FLSA coverage.

The Agency contends that the Arbitrator's award concerning the grievants who were found covered under the FLSA and awarded backpay is contrary to law and Government-wide regulation. For the following reasons, we find that the Agency has failed to demonstrate that the Arbitrator's award is deficient under the Statute. Accordingly, the Agency's exceptions will be denied.

II. Background and Arbitrator's Award

This case involves the status of Agency employees under the FLSA. This issue was first raised in U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, 44 FLRA 773 (1992) (SSA I). In that case, the Arbitrator found that claims authorizers and claims examiners in grades GS-9 and 10 were not exempt from coverage under the FLSA on the ground that they were bona fide administrative employees and that they were entitled to backpay for overtime work. In SSA I, we denied the Agency's exceptions that the award on the merits violated the Back Pay Act, 5 U.S.C. § 5596, and found that the Arbitrator had made the required finding that, but for the Agency's improper designation of the grievants as exempt from FLSA coverage, the grievants would have received the FLSA compensation to which they were entitled. In U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, 47 FLRA 819 (1993) (SSA II), we denied the Agency's exceptions to the Arbitrator's supplemental award in which he held that the claims authorizers and claims examiners were entitled to backpay with interest, for a period of 6 years prior to the filing of the grievances, and to backpay for overtime work suffered or permitted by the Agency.

The grievances in this case concern the claims of other Agency employees that they were improperly designated as exempt from FLSA coverage as bona fide administrative employees. A grievance was filed on behalf of those employees and submitted to the Arbitrator for resolution of the following issue:

Are the exemptions from coverage under the Fair Labor Standards Act as "bona fide administrative" employees of the bargaining unit employees in the positions discussed herein imposed by the Agency appropriate exemptions? If not, what should the remedy be?

Award at 3.

The Arbitrator noted that, in making his determinations in this case, he would be guided by the awards and the Authority's decisions in SSA I and SSA II. He set forth the relevant provisions of Department of Labor (DOL) and Office of Personnel Management (OPM) regulations pertaining to the FLSA coverage of Federal employees and emphasized that those regulations must be interpreted narrowly to determine whether employees should be exempted from FLSA coverage. He also noted that, in accordance with American Federation of Government Employees v. Office of Personnel Management, 821 F.2d 761 (D.C. Cir. 1987) (AFGE v. OPM), "OPM's application of the exemption must be consistent with DOL standards." Id. at 6. With respect to the requirement in both DOL and OPM regulations that decisions as to whether employees are exempt from coverage under the FLSA shall be made on the basis of the primary duties performed by the employees, the Arbitrator stated that primary duties would be defined as "the work that the employee performs in more tha[n] 50% of his work time." Id. at 7.⁽¹⁾

At the hearing on the grievances, the Arbitrator received testimony from Agency and Union witnesses concerning the duties performed by the grievants and made his determinations as to FLSA coverage based on the testimony of those witnesses. The Agency relied primarily on the position descriptions of the grievants. The Arbitrator found, based primarily on the testimony of representative incumbents of those positions, that the duties performed by employees in certain job classifications for more than 50 percent of the time constituted the production work of the Agency. He found that the duties did not meet the requirements of either DOL or OPM regulations for the designation of those employees as exempt from FLSA coverage on the ground that they were bona fide administrative employees. The Arbitrator concluded that the grievants in seven position descriptions were improperly classified as exempt from FLSA and that, "but for the illegal exemptions imposed by the Agency, those employees would have received overtime pay as mandated by the FLSA." Id. at 71.

The seven position descriptions which the Arbitrator found were improperly classified as exempt from FLSA coverage are:

(1) Position Description 9 C 675 - Social Insurance Representative, GS-105-11, Technical Assistant.

(2) Position Description 5 A 453 - Social Insurance Claims Examiner, GS-993-11, Claims Technical Assistant.

(3) Position Description 52347 - Social Insurance Claims Examiner, GS-993-11, Technical Assistant.

(4) Position Description 66832 - Paralegal Specialist, GS-950-13, Hearing and Appeals Analyst.

(5) Position Description 66846 - Paralegal Specialist, GS-950-13, Civil Actions Analyst.

(6) Position Description OC 449 - Social Insurance Claims Examiner (Retirement), GS-993-11, Foreign Claims Quality Assistant.

(7) Position Description 4 B 623 - Translator, GS-1040-11.⁽²⁾

The Arbitrator found that employees in the following positions were properly classified as exempt from FLSA coverage and he denied the grievances of those employees:

(1) Position Description 5 A 477 - Social Insurance Specialist, GS-105-12, Disability Quality Branch.

(2) Position Description 5 A 476 - Social Insurance Specialist, GS-105-12, Assistance Program Quality Branch.

(3) Position Description 5 A 471 - Social Insurance Specialist, GS-105-12, Insurance Program Quality Branch.

The Arbitrator stated that he would direct remedies for employees in the seven position descriptions that he found were improperly exempted from FLSA coverage in the same manner as he had directed remedies for the claims representatives and claims authorizers in SSA I and SSA II, with the exception that he would also award liquidated damages under 29 U.S.C. § 260 and interest in this case. He noted that he had the authority to award liquidated damages under 29 U.S.C. § 260 pursuant to 29 U.S.C. §§ 204(f) and 216(b). He distinguished his decision not to award liquidated damages to claims representatives and claims authorizers in SSA I and SSA II on the ground that the Agency had established that it acted in good faith reliance on advice of the Civil Service Commission (CSC), which later became OPM. However, he found nothing in the record of this case "to show that the Agency acted in good faith or had reasonable ground for believing as provided in 29 [U.S.C. §] 260 with respect to its classification of the employees as FLSA exempt in the positions which are in issue here." Id. at 73. He found that the Agency had produced only one witness on the issue and had not presented any defense to an award of liquidated damages in its brief and, thus, had "failed to meet its burden of proof" on this matter. Id. The Arbitrator also noted that interest on backpay was appropriate under the Back Pay Act. He stated that grievants could not receive both backpay and liquidated damages, but they "may make a choice depending upon which option affords the higher return." Id. at 77.

Therefore, as his award to the grievants found to have been improperly exempted from FLSA coverage, the Arbitrator ordered that: (1) the employees be given backpay for overtime work; (2) the time for backpay claims be retroactive for 6 years prior to the dates of filing the grievances; (3) backpay be paid for overtime work that was suffered or permitted by the Agency; (4) backpay must include either liquidated damages or interest, but not both, at the choice of the employee; and (5) employees who were voluntarily reclassified by the Agency from exempt to covered FLSA status following SSA I must receive backpay computed in the same manner as the employees included in the grievance. 

III. First Exception

A. Positions of the Parties

1. The Agency

The Agency contends that the award is contrary to law because the Arbitrator did not apply the 2-year statute of limitations applicable to FLSA cases as set forth in 29 U.S.C. § 255(a). The Agency maintains that the Arbitrator was not free to fashion his own remedy allowing backpay for a period of 6 years prior to the filing of the grievances in this case but was required to comply with the FLSA statute of limitations. Consequently, the Agency contends, the Arbitrator's award is contrary to law.

2. The Union

The Union asserts that the Agency's exception fails to establish that the award is contrary to law. The Union maintains that the Arbitrator's award of backpay for 6 years prior to the filing of the grievances is consistent with the remedy he prescribed in his prior remedy award involving claims representatives and claims authorizers, which was upheld by the Authority in SSA II. The Union also cites American Federation of Government Employees, Local 22 and U.S. Department of the Navy, Naval Base, Norfolk, Virginia, 48 FLRA 708 (1993) (Naval Base, Norfolk) in which the Authority reaffirmed its decision regarding the remedy in SSA II.

B. Analysis and Conclusions

For the following reasons, we find that the Agency's exception provides no basis for finding the award deficient.

As noted by the Union in its opposition, the Authority addressed the issue of the appropriate statute of limitations for claims of compensation for overtime under the FLSA in SSA II and Naval Base, Norfolk. In SSA II, 47 FLRA at 828-29, we upheld the Arbitrator's award of backpay for 6 years prior to the filing of the grievances. We found that the Arbitrator was not required to apply the statute of limitations set forth in 29 U.S.C. § 255 and that he properly resolved the dispute under the parties' negotiated grievance procedure and the Back Pay Act. We concluded that there was no basis on which to find the award deficient under 29 U.S.C. § 255. We reaffirmed that decision in Naval Base, Norfolk, in which we found that there is no law or precedent requiring the use of the statute of limitations contained in 29 U.S.C. § 255 in resolving grievances of Federal employees claiming backpay for FLSA violations. For the same reasons as set forth in SSA II and Naval Base, Norfolk, we find no basis on which to conclude that the award in this case is contrary to 29 U.S.C. § 255 and we will deny this exception.

IV. Second Exception

A. Positions of the Parties

1. The Agency

The Agency asserts that the award is deficient because the Arbitrator made an erroneous finding that the grievants were entitled to liquidated damages under 29 U.S.C. § 260. The Agency contends that the Arbitrator should have found that the Agency acted in good faith when it designated the grievants as exempt from FLSA coverage on the ground that they are bona fide administrative employees. The Agency maintains that it followed advice from the CSC and OPM and that it also acted in a manner that was consistent with Cervino v. Mathews, No. 76-1384 (E.D. Pa. July 13, 1978), in which the court held that a group of claims examiners and claims authorizers in grades GS-933-9 and 10 were properly exempted from the FLSA as administrative employees. The Agency also maintains that it produced witnesses at the arbitration hearing to testify that it had exercised good faith in reviewing the grievants' position descriptions to determine their FLSA status. The Agency contends that the Arbitrator should not have based his decision in this regard on his finding that the Agency did not consult with OPM as to the FLSA status of the grievants.

2. The Union

The Union contends that the Arbitrator had the discretion to make a finding of fact as to whether the Agency had exercised good faith in making the decision to exempt the grievants from FLSA coverage and that he properly found that the grievants were entitled to liquidated damages under 29 U.S.C. § 260 as compensation for being deprived of FLSA wages. The Union asserts that the Agency is merely disagreeing with the Arbitrator's factual finding that the Agency failed to act in good faith when it determined that the grievants were exempt from FLSA coverage.

B. Analysis and Conclusions

We conclude that the Agency's exception fails to establish that the Arbitrator's award is contrary to 29 U.S.C. § 260.

In U.S. Department of the Treasury, Internal Revenue Service, Washington, D.C. and National Treasury Employees Union, 46 FLRA 1063 (1992) (IRS), we held that agencies can be held liable for the payment of liquidated damages to remedy a violation of the FLSA. We also held that arbitrators have the authority under 29 U.S.C. § 260 to find that liquidated damages are not warranted if the agency has demonstrated to an arbitrator that its exemption of employees from coverage under the FLSA was done in good faith. Id. at 1073.

The Arbitrator noted that the liquidated damages provisions of the FLSA are applicable to Federal employees and he noted that he had specifically found in SSA II that the Agency was not liable for liquidated damages because of its good faith reliance on the guidance of OPM. However, with respect to the present case, the Arbitrator noted that the Agency had not addressed the issue of liquidated damages in its post-hearing brief before him and he concluded that there was nothing in the record to support a finding that "the Agency acted in good faith or had reasonable ground" for classifying the seven categories of employees as exempt from FLSA coverage. Award at 73. He ruled that "the Agency has failed to meet its burden of proof" in that respect. Id. The Agency has not shown that the Arbitrator's conclusions concerning the Agency's good faith are contrary to law. Rather, the Agency's exception merely constitutes disagreement with the Arbitrator's findings and conclusions, and, as such, provides no basis for finding the award deficient. See IRS, 46 FLRA at 1074. Accordingly, we will deny the Agency's exception.

V. Third Exception

A. Positions of the Parties

1. The Agency

The Agency contends that the Arbitrator erred when he ruled that translators are not exempt from FLSA coverage. The Agency asserts that the Arbitrator should have followed Campbell to find that translators are exempt from FLSA coverage for the same reasons used by the court to find that air traffic control specialists are exempt.

2. The Union

The Union asserts that the Arbitrator did not err by distinguishing Campbell from the present case. The Union notes that Campbell was vacated on appeal and, consequently, has no precedential effect. The Union further maintains that, even if Campbell had not been vacated, it would not require the designation of translators as exempt from FLSA coverage because the Arbitrator properly concluded that translator positions are not the same as air traffic control specialist positions for purposes of the FLSA. The Union contends that the Arbitrator's factual finding that translators are not exempt from FLSA coverage is supported by the record and that the Agency is merely repeating arguments made before and rejected by the Arbitrator.

B. Analysis and Conclusions

We conclude that the Agency's exception fails to establish that the award is deficient. As noted by the Union, Campbell was vacated by the United States Court of Appeals for the Federal Circuit on April 23, 1992. See 972 F.2d at 1352. "[A] decision that has been vacated has no precedential authority whatsoever." Durning v. Citibank, 950 F.2d 1419, 1424 n.2 (9th Cir. 1991) (emphasis deleted). Consequently, we find that the Agency's reliance on Campbell is misplaced.

Further, even assuming that Campbell has precedential value, the Agency's exception does not establish that the Arbitrator's award is deficient. As noted by the Arbitrator, Campbell concerned the FLSA status of air traffic control specialists at a military base and the Arbitrator found that the status of those employees in no way compared to the FLSA status of translators at the Agency. We find no error in the Arbitrator's finding that Campbell was distinguishable from the case before him. See Roney v. U.S., 790 F. Supp. 23, 28 (D.D.C. 1992) (distinguishing Campbell in a case involving the FLSA exemption status of a deputy U.S. marshal). In our view, the Agency is merely disagreeing with the Arbitrator's factual determination that the duties of translators are not the same as the duties of air traffic control specialists for purposes of determining FLSA exemption and, as such, is disagreeing with the Arbitrator's evaluation of the evidence and his reasoning and conclusions, which provides no basis for finding the award deficient. See U.S. Department of the Navy, Naval Surface Warfare Center, Crane Division, Crane, Indiana and American Federation of Government Employees, Local 1415, 49 FLRA No. 6, slip op. at 4 (1994) (Naval Surface Warfare Center). Accordingly, the Agency's exception will be denied.

VI. Fourth Exception

A. Positions of the Parties

1. The Agency

The Agency asserts that the Arbitrator's award is deficient because the Arbitrator erred in finding that duties that are performed for less than 50 percent of an employee's work time cannot be used to determine what constitutes a primary duty for purposes of the FLSA. The Agency maintains that OPM regulations provide that duties which constitute less than 50 percent of an employee's time can be considered as primary duties. The Agency also contends that the Arbitrator erred by relying on testimony of witnesses rather than on written position descriptions to determine whether the grievants were exempt from FLSA coverage. The Agency argues that courts have relied on position descriptions in making such determinations and that the Arbitrator should have done the same.

2. The Union

The Union contends that the Agency "misconstrued the record" and that the Arbitrator "did use the OPM 'primary duty' test." Opposition at 44. The Union maintains that the Arbitrator properly found that the Agency failed to meet its burden of proving that the grievants were exempt from FLSA coverage because their primary duties were administrative in nature. With respect to the Agency's argument that the Arbitrator improperly relied on the testimony of witnesses rather than on written position descriptions, the Union maintains that the Agency is arguing that the position description "provides an irrebuttable presumption of the actual job duties of the position." Id. at 47. The Union contends that the Agency has failed to show that the duties of a position cannot be established by the testimony of witnesses as well as by the written position description.

B. Analysis and Conclusions

We find nothing in the Arbitrator's application of the primary duty test that conflicts with either DOL or OPM FLSA regulations. As the Arbitrator recognized, the DOL regulations define primary duties as those constituting more than 50 percent of an employee's duties and OPM regulations provide the same, with the addition of an alternative test in FPM Letter 551-7.B.1.a. The alternative test permits the exemption of a position from FLSA coverage if less than 50 percent of the position's duties constitute the major, grade-controlling duties of the position. However, the Arbitrator noted that "meeting the three conditions required for a duty constituting less than 50% of the work being the primary duty would be a rarity." Award at 13. He found, in analyzing the duties of the grievants at issue in the case, that none of the grievants met the OPM alternative test.

The Agency has not shown that the Arbitrator was required to find that the grievants in this case were covered by the OPM alternative test for determining primary duty. Rather, that was a factual matter that was within the discretion of the Arbitrator to decide. In each instance of finding grievants improperly exempted from FLSA coverage by the Agency, the Arbitrator found that the primary duties of the employees constituted the production work of the Agency and that the employees were not bona fide administrative employees under either the DOL or the OPM regulations. He found no instance in which grievants performed duties less than 50 percent of the time which would render them bona fide administrative employees under the OPM alternative test.

Further, the Agency has not shown that the Arbitrator erred by considering and relying on the testimony of witnesses rather than relying on the written position descriptions to determine the primary duties of the grievants in question. In SSA I, we found that the Arbitrator properly rejected the testimony of expert witnesses produced by the Agency and we noted that the Arbitrator had the duty of making "the fact-specific determinations with regard to the exemptions of specific employees." SSA I, 44 FLRA at 797. Similarly, in this case, the Arbitrator made fact-specific determinations based on the record before him, which included the Agency's reliance on position descriptions and the Union's reliance on the testimony of witnesses, as to the duties performed by the grievants. See Naval Surface Warfare Center, 49 FLRA No. 6, slip op. at 4 (arbitrator properly relied on documentary and testimonial evidence presented by the agency concerning the duties of positions).

Consequently, we conclude that the Agency has not shown that the award is contrary to the OPM regulation concerning primary duties. The Agency is merely disagreeing with the Arbitrator's evaluation of the evidence and his findings and conclusions, and such disagreement provides no basis for finding the award deficient. See IRS, 46 FLRA at 1072.

VII. Fifth Exception

A. Positions of the Parties

1. The Agency

The Agency contends that the Arbitrator erred by finding that DOL regulations take precedence over OPM regulations in cases involving the FLSA status of Federal employees. The Agency maintains that "in all FLSA exemption actions, OPM regulations are controlling except when OPM regulations are silent." Exceptions at 18. The Agency cites Adams v. United States, 27 Fed. Cl. 5 (1992) (Adams), for the proposition that OPM regulations regulate the FLSA exemption of Federal employees and that, although OPM's regulations must be consistent with DOL's FLSA regulations, they need not be identical to the DOL regulations. The Agency contends that the Arbitrator's award is not consistent with the court's decision in Adams.

2. The Union

The Union disputes the Agency's contentions and denies that the Arbitrator held that DOL regulations take precedence over OPM regulations. Further, the Union maintains that the Arbitrator applied both DOL and OPM regulations and found that the Agency failed to meet its burden of proving that the seven categories of positions were exempt from FLSA coverage under either set of regulations. The Union contends that there was no error in the Arbitrator's finding that OPM regulations must be consistent with DOL regulations in accordance with the court's decision in AFGE v. OPM.

B. Analysis and Conclusions

We find that the Agency's exception fails to establish that the Arbitrator's award is deficient. Particularly, we find nothing in Adams which establishes that the award is deficient. In Adams, the court held that the OPM FLSA regulations must be consistent with DOL regulations but noted that "OPM's interpretations need not be identical to those of the Department of Labor." 27 Fed. Cl. at 13. The Arbitrator did not make any statements or findings that are inconsistent with Adams. He merely repeated his position set forth in SSA I that "OPM's application of the [FLSA] exemption must be consistent with DOL standards." Award at 6 (citation omitted).

In IRS, we reaffirmed our view that the Arbitrator's position in SSA I was correct. We cited the court's decision in Adam v. United States, 26 Cl. Ct. 782 (1992) (Adam) for the proposition that DOL regulations as well as OPM regulations are applicable in making determinations as to the FLSA exemption status of Federal employees. We stated that "[u]nder the precedent established in Adam and [SSA I], the [a]rbitrator in this case could properly consider the DOL regulations defining administrative employees in determining whether the [a]gency had properly applied the OPM regulations." IRS, 46 FLRA at 1071-72. For the same reasons as set forth in IRS, we find nothing erroneous in the Arbitrator's application of DOL as well as OPM regulations in the present case. Further, as noted above, in each instance of finding employees improperly exempted from FLSA coverage by the Agency, the Arbitrator found that the Agency had violated both DOL and OPM regulations. Consequently, we conclude that the Agency has not shown that the Arbitrator's award is contrary to law or regulation. The Agency is merely disagreeing with the Arbitrator's evaluation of the evidence in deciding the issue before him. As noted above, such disagreement provides no basis for finding the award deficient. See id. at 1072. Accordingly, we will deny the Agency's exception.

VIII. Decision

The Agency's exceptions are denied.

APPENDIX

29 U.S.C. § 216(b) provides, in relevant part:

Any employer who violates the provisions of section 206 or section 207 of this title shall be liable to the employee or employees affected in the amount of their . . . unpaid overtime compensation . . . and in an additional equal amount as liquidated damages. . . . An action to recover the liability prescribed in either of the preceding sentences may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. . . .

29 U.S.C. § 255 provides, in relevant part:

Any action commenced on or after May 14, 1947, to enforce any cause of action for . . . unpaid overtime compensation, or liquidated damages, under the Fair Labor Standards Act of 1938 . . .

(a) [M]ay be commenced within two years after the cause of action accrued, and every such action shall be forever barred unless commenced within two years after the cause of action accrued, except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued. . . .

29 U.S.C. § 260 provides, in relevant part:

In any action . . . to recover . . . unpaid overtime compensation, or liquidated damages, under the Fair Labor Standards Act of 1938, as amended, . . . if the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of the Fair Labor Standards Act of 1938, as amended, the court may, in its sound discretion, award no liquidated damages or award any amount thereof not to exceed the amount specified in section 216 of this title.

Attachment to FPM Letter 551-7, provides, in relevant part:

A. Definitions of Executive, Administrative and Professional Employees

. . . .

2. Administrative Employees: An administrative employee is an advisor, assistant or representative of management, or a specialist in a management or general business function or supporting service whose position meets the criteria in subsections a. through e., below:

a. The employee's primary duty consists of work that:

(1) Significantly affects the formulation or execution of management policies or programs; or

(2) Involves general management or business functions or supporting services of substantial importance to the organization serviced; or

(3) Involves substantial participation in the executive or administrative functions of a management official.

. . . .

B. General Guidance to Application of Executive, Administrative and Professional Exemption Definitions

1. Meaning of Terms:

. . . .

a. Primary Duty. As a general rule, the primary duty is that which constitutes the major part (over 50%) of the employee's work. However, a duty which constitutes less than 50% of the work can be credited as the primary duty for exemption purposes provided that duty:

(1) Represents the most important duty;

(2) Controls the classification of the position (i.e.,. if that duty were removed, the position would be classified at a lower grade level; and

(3) Is clearly exempt work in terms of the basic nature of the work, the frequency with which the employee must exercise discretion and independent judgment, and the significance of the decisions made.

(Emphasis in original.)

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. The statutory and regulatory criteria for determining whether Federal employees are designated as exempt or nonexempt from FLSA coverage are discussed fully in SSA I. Statutory and regulatory provisions relevant to the specific issues in this case are set forth in the Appendix to this decision. We note that although the FPM was abolished effective December 31, 1993, certain provisions were retained, including, as pertinent to this case, FPM Letter 551-7. See FPM Sunset Document, Summary Table at 8.

2. With respect to the Agency's claim that it had properly exempted translators from FLSA coverage, the Arbitrator rejected the Agency's reliance on Campbell v. United States Air Force, 755 F. Supp. 893 (E.D. Cal. 1990) (Campbell), vacated 972 F.2d 1352 (Fed. Cir. 1992). He found that the position of air traffic controller which was involved in Campbell was distinguishable from the position of translator and he stated that "[t]ranslators do not control any missions of the Agency and obviously they do not perform predominantly administrative functions rather than the technical work of the occupation." Award at 58. He concluded that translators were not bona fide administrative employees.

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