U.S. Office of Personnel Management
              Office of Merit Systems Oversight and Effectiveness
                         Classification Appeals and FLSA Programs
                                                                 
              Office of Merit Systems Oversight and Effectiveness
                                                1900 E Street, NW
                                        Washington, DC 20415-6000


	Fair Labor Standards Act Decision
	Under section 4(f) of title 29, United States Code


	Appellant:	Claimant

	Agency classification:	Airway Transportation Systems Specialist
						FG-2101-13
		
	Organization:	Federal Aviation Administration
			Department of Transportation
			Bangor, ME

	Claim: 	Exemption status.  

	OPM decision:		Denied.  Bargaining unit position.                                                       

	OPM decision number:	F-2101-13-01

	_____________________________
	Deborah Y. McKissick
	FLSA Claims Officer

	July 30, 2002
	_____________________________
	Date


                                 _____________________________
                                 Deborah Y. McKissick
                                 FLSA Claims Officer

                                 July 30, 2002
                                 _____________________________
                                 Date


As  provided  in  section 551.708 of title  5,  Code  of  Federal
Regulations   (CFR),   this   decision   is   binding   on    all
administrative, certifying, payroll, disbursing,  and  accounting
officials  of  agencies for which Office of Personnel  Management
administers  the  Fair Labor Standards Act.   The  agency  should
identify  all  similarly  situated current  and,  to  the  extent
possible, former employees, and ensure that they are treated in a
manner  consistent  with this decision.  There  is  no  right  of
further  administrative  appeal.  This  decision  is  subject  to
discretionary  review  only  under  conditions  and  time  limits
specified  in  5 CFR 551.708 (address provided in 551.710).   The
claimant has the right to bring action in the appropriate Federal
court if dissatisfied with the decision.

                        Decision sent to:

[claimant’s name and address]

[name]
Manager
Human Resources Management Division
Federal Aviation Administration
U.S. Department of Transportation
[address]


Introduction

On September 26, 2001, the Office of Merit Systems Oversight and
Effectiveness (OMSOE) of the U.S. Office of Personnel Management
(OPM) received a Fair Labor Standards Act (FLSA) claim from [the
claimant].  The claimant works with the Federal Aviation
Administration of the Department of Transportation as an Airway
Transportation Systems Specialist, FG-2101-13.  We have accepted
and decided his claim under section 4(f) of title 29 (FLSA),
United States Code.

As is customary with our analysis of an FLSA claim, we reviewed
the position description of record and other information provided
by the claimant and the agency.  We also interviewed the
claimant.

General issues

The agency designated the claimant’s position, Airway
Transportation Systems Specialist, FG-2101-13, as exempt. The
claimant believes the FLSA exemption status of his position is
incorrect. The claimant also believes the duties and
responsibilities as described in the position description are
inaccurate.

The claimant referenced the duties accomplished by the Technical
Support Office.  However, we must make our decision solely by
comparing the claimant’s duties and responsibilities to Federal
regulations and other Federal guidelines.  Since comparison to
Federal guidelines is the exclusive method for making exemption
decisions, we cannot compare the claimant’s position to others as
a basis for deciding his claim.

Based on the information provided by the agency and the claimant,
the claimant is in a bargaining unit position. Moreover, this
matter was not excluded from negotiated grievance procedures
(NGP) under the agency's collective bargaining agreement. See
Article 5, Section 6 of the Agreement Between the Professional
Airways Systems Specialists District No. 6 – NMEBA/AFL-CIO and
the Federal Aviation Administration Department of Transportation.
Section 6 states that the NGP is not applicable:

     In matters relating to overtime entitlement under the Fair
Labor
     Standards Act, as amended, the compliance and complaint
system
     shall be administered in accordance with Office of Personnel
     Management regulations.  Emphasis added.

The issue of this claim was the claimant’s exemption status, and
not entitlement to overtime.
Therefore, the Office of Personnel Management (OPM) cannot take
jurisdiction over the claim of a Federal employee who is or was
subject to a negotiated grievance procedure under a collective
bargaining agreement between the employee’s agency and labor
union, unless that matter is or was specifically excluded from
the agreement’s grievance procedure. This is because 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 1452, 1454-55 (Fed.
Cir. 1990) (en banc), cert. denied, 498 U.S. 811 (1990),
construing therein the provision in the Civil Service Reform Act
codified at 5 U.S.C. § 7121(a). That Act mandates that the
grievance procedures in negotiated collective bargaining
agreements be the exclusive remedy for matters covered by the
agreements. Accord, Paul D. Bills, et al., B260475 (June 13,
1995); Cecil E. Riggs, et al., 71 Comp. Gen. 374 (1992).
Accordingly, OPM cannot assert jurisdiction over, or issue a
decision concerning, this matter.