[ v06 p401 ]
06:0401(72)AR
The decision of the Authority follows:
6 FLRA No. 72 UNITED STATES DEPARTMENT OF THE INTERIOR, BUREAU OF LAND MANAGEMENT, EUGENE DISTRICT OFFICE Activity and NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1911 Union Case No. O-AR-84 DECISION THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF ARBITRATOR CARLTON J. SNOW FILED BY THE AGENCY UNDER SECTION 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7122(A)). ACCORDING TO THE ARBITRATOR, THE DISPUTE IN THIS MATTER CONCERNS A DEMAND OF COMPENSATION FOR TRAVEL TIME FOR PROFESSIONAL EMPLOYEES OF THE BUREAU OF LAND MANAGEMENT IN THE EUGENE, OREGON DISTRICT OFFICE WHO ARE EXEMPT FROM THE PROVISIONS OF THE FAIR LABOR STANDARDS ACT. PRIOR TO JUNE 1976, THE REGULAR WORKING HOURS FOR THESE EMPLOYEES WERE 7:45 A.M. TO 4:15 P.M. THE EMPLOYEES WERE ALLOWED ONE-HALF HOUR FOR LUNCH WHICH RESULTED IN EIGHT HOURS OF COMPENSABLE TIME. TRAVEL TIME TO WORK SITES IN THE FIELD WAS INCLUDED IN THE EIGHT HOURS. PURSUANT TO A MEMORANDUM ISSUED BY THE OREGON STATE DIRECTOR ON JUNE 10, 1976, THE EUGENE DISTRICT OFFICE ADOPTED A POLICY OF NOT COMPENSATING EXEMPT EMPLOYEES FOR TRAVEL TIME TO AND FROM THE WORK SITES IN THE FIELD FOR AS MUCH AS ONE AND A HALF HOURS, OR FORTY-FIVE MINUTES EACH WAY. CONSEQUENTLY, THE EMPLOYEES HAD TO ARRIVE AT HEADQUARTERS AT 7:00 A.M. IN ORDER TO ALLOW FOR THE 45 MINUTES OF UNCOMPENSATED TRAVEL TIME EACH WAY. THE UNION FILED A GRIEVANCE CONTENDING THAT THE EXEMPT EMPLOYEES WERE ENTITLED TO OVERTIME COMPENSATION FOR THEIR UNCOMPENSATED TRAVEL TIME. THE GRIEVANCE WAS ULTIMATELY SUBMITTED TO ARBITRATION. BECAUSE THE PARTIES COULD NOT AGREE ON A STIPULATION OF ISSUES, EACH PARTY SUBMITTED ITS OWN STATEMENT OF QUESTIONS TO BE RESOLVED BY THE ARBITRATOR. IN RESOLVING THE MERITS OF THE GRIEVANCE, THE ARBITRATOR OBSERVED THAT THE OVERTIME PAYMENTS SOUGHT IN THIS CASE ARE CONTROLLED BY 5 U.S.C. 5542 WHICH PROVIDES THAT OVERTIME IS TO BE PAID FOR "HOURS OF WORK OFFICIALLY ORDERED OR APPROVED" IN EXCESS OF EIGHT HOURS A DAY OR 40 HOURS A WEEK. IN TERMS OF THE SITUATION PRESENTED BY THIS GRIEVANCE, WHERE EMPLOYEES REPORT TO HEADQUARTERS BEFORE TRAVELING TO A WORKSITE, THE ARBITRATOR NOTED THAT UNDER DECISIONS OF THE COMPTROLLER GENERAL, THE KEY CONSIDERATION IN DETERMINING WHETHER THE TRAVEL TIME TO THE WORK SITE IS COMPENSABLE DEPENDS UPON WHETHER REPORTING TO HEADQUARTERS IS INCIDENT TO THE EMPLOYEE'S WORK OR, INSTEAD, WHETHER IT MERELY FACILITATES THE EMPLOYEE'S USE OF GOVERNMENT TRANSPORTATION. ON THE BASIS OF THE EVIDENCE PRESENTED AT THE ARBITRATION HEARING, THE ARBITRATOR DETERMINED THAT THE EMPLOYEES' REPORTING TO HEADQUARTERS IS "INCIDENT TO THE EXEMPT EMPLOYEES' WORK AS PROFESSIONAL EMPLOYEES." SPECIFICALLY, HE FOUND THAT THESE EMPLOYEES MAINTAINED DESKS AT HEADQUARTERS AND THAT IT WAS NECESSARY FOR THEM TO REPORT TO HEADQUARTERS TO COORDINATE THEIR ACTIVITIES WITH OTHER EMPLOYEES, RECEIVE MESSAGES, COMMUNICATE WITH SUPERVISORS, OBTAIN AND SECURE EQUIPMENT, AND REFUEL VEHICLES. CONSEQUENTLY, THE ARBITRATOR RULED THAT THE ACTIVITY HAD VIOLATED THE PARTIES' COLLECTIVE BARGAINING AGREEMENT "BY REFUSING TO PAY OVERTIME TO EXEMPT EMPLOYEES WHO DROVE VEHICLES DURING NON-WORKING HOURS TO AND FROM ADMINISTRATIVE HEADQUARTERS AND THEIR WORKSITE." HE THEREFORE ORDERED THE ACTIVITY TO COMPENSATE THESE EMPLOYEES FOR THE OVERTIME LOST AS A RESULT OF THIS VIOLATION, AND HE RETAINED JURISDICTION TO RESOLVE ANY PROBLEMS RESULTING FROM THE AWARD. PURSUANT TO THIS RETENTION OF JURISDICTION, THE UNION SOUGHT A CLARIFICATION AS TO WHETHER THE AWARD APPLIED TO EMPLOYEES WHO SPENT TIME TRAVELING AS PASSENGERS. THE ARBITRATOR ISSUED A CLARIFICATION OF HIS AWARD AND EXPLAINED: IT IS THE INTENT OF THE AWARD TO COVER EXEMPT EMPLOYEES WHO SHOULD HAVE RECEIVED OVERTIME PAY FOR TRAVEL TIME TO AND FROM ADMINISTRATIVE HEADQUARTERS AND THEIR WORKSITE. THE AWARD COVERED EXEMPT EMPLOYEES WHO OPERATED MOTOR VEHICLES AS WELL AS EXEMPT EMPLOYEES WHO RODE IN VEHICLES AS PASSENGERS. PURSUANT TO SECTION 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE /1/ AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS, 5 CFR PART 2425, THE AGENCY FILED EXCEPTIONS TO THE ARBITRATOR'S CLARIFICATION OF HIS ORIGINAL AWARD. THE UNION FILED AN OPPOSITION. /2/ IN ITS FIRST EXCEPTION, THE AGENCY CONTENDS THAT THE ARBITRATOR EXCEEDED HIS AUTHORITY AS ESTABLISHED BY THE PARTIES' COLLECTIVE BARGAINING AGREEMENT. IN SUPPORT OF THIS EXCEPTION, THE AGENCY NOTES THAT UNDER THE AGREEMENT, "(T)HE ARBITRATOR SHALL ONLY DECIDE THE SPECIFIC ISSUE(S) BEFORE HIM/HER." THE AGENCY ARGUES THAT THE QUESTION SUBMITTED TO THE ARBITRATOR BY THE PARTIES CONCERNED ONLY THOSE EXEMPT EMPLOYEES WHO ACTUALLY DROVE THE GOVERNMENT VEHICLES TO AND FROM THE HEADQUARTERS AND THE WORK SITE. THE AGENCY FURTHER ARGUES THAT THIS WAS PRECISELY THE QUESTION TO WHICH THE ARBITRATOR ORIGINALLY RESPONDED WHEN HE FOUND A VIOLATION AS TO "EXEMPT EMPLOYEES WHO DROVE VEHICLES." THE AGENCY THUS CLAIMS THAT THE ARBITRATOR EXCEEDED HIS AUTHORITY "BY EXTENDING THE AWARD TO INCLUDE EXEMPT EMPLOYEES WHO MERELY RIDE IN A GOVERNMENT VEHICLE." THE AUTHORITY WILL FIND AN AWARD DEFICIENT WHEN AN ARBITRATOR EXCEEDS HIS OR HER AUTHORITY BY DETERMINING AN ISSUE NOT INCLUDED IN THE SUBJECT MATTER SUBMITTED TO ARBITRATION. FEDERAL AVIATION SCIENCE AND TECHNOLOGICAL ASSOCIATION, LOCAL NO. 291, FORT WORTH, TEXAS AND FEDERAL AVIATION ADMINISTRATION, FORT WORTH AIR ROUTE TRAFFIC CONTROL CENTER, AIRWAY FACILITIES SECTOR, SOUTHWEST REGION, FORT WORTH, TEXAS, 3 FLRA NO. 88(1980). IN THIS CASE, HOWEVER, THE AGENCY FAILS TO DEMONSTRATE IN WHAT MANNER THE ARBITRATOR'S AWARD IS DEFICIENT AS IN EXCESS OF HIS AUTHORITY. AS NOTED, THE PARTIES DID NOT AGREE TO STIPULATE THE PRECISE ISSUES TO BE ADDRESSED BY THE ARBITRATOR. INSTEAD, EACH PARTY SUBMITTED QUESTIONS WHICH IT FELT WOULD BE DISPOSITIVE OF THE MATTER. IN VIEW OF THE EVIDENCE PRESENTED, THE ARBITRATOR EMPHASIZED THAT "WHAT IS AT ISSUE IS TRAVEL TIME, NOT COMPENSATION FOR DRIVING THE VEHICLE." THEREFORE, THE ARBITRATOR DETERMINED THAT "(B)OTH PASSENGERS AND DRIVERS ARE ENGAGED IN TRAVEL, SO THE RIDES OF BOTH CLASSES OF PERSONS ARE INVOLVED IN THE GRIEVANCE." FURTHERMORE, THE ARBITRATOR IN HIS CLARIFICATION NOTED THAT THE UNION HAD REPEATEDLY IDENTIFIED THIS DISPUTE AS "EXEMPT TRAVEL OVERTIME" AND THAT THERE WAS NO INDICATION THAT THE PARTIES USED THE TERM "TO DRIVE" IN A LITERAL AND TECHNICAL SENSE. CONSEQUENTLY, WITH NO AGREEMENT BY THE PARTIES STATING EXPRESSLY THE ISSUES "MARKED OUT FOR HIS CONSIDERATION," STEELWORKERS V. ENTERPRISE WHEEL & CAR CORP., 363 U.S. 593, 598(1960), THE AGENCY FAILS TO DEMONSTRATE THAT THE ARBITRATOR EXCEEDED HIS AUTHORITY BY DETERMINING THAT THE GRIEVANCE INVOLVED THE TRAVEL TIME OF BOTH DRIVERS AND PASSENGERS. SEE ID.; FOOD WORKERS LOCAL 56 V. GREAT ATLANTIC & PACIFIC TEA CO., 415 F.2D 185(3D CIR. 1969). THEREFORE, THIS EXCEPTION PROVIDES NO BASIS FOR FINDING THE AWARD DEFICIENT UNDER 5 U.S.C. 7122(A) AND SECTION 2425.3 OF THE AUTHORITY'S RULES. IN ITS SECOND EXCEPTION, THE AGENCY CONTENDS THAT THE ARBITRATOR'S AWARD IS ARBITRARY AND CAPRICIOUS. IN SUPPORT OF THIS EXCEPTION, THE AGENCY AGAIN MAINTAINS THAT THE STATUS OF RIDERS WAS NOT SUBMITTED AS AN ISSUE AND ARGUES THAT THEREFORE THE RECORD DID NOT CONTAIN EVIDENCE ON WHICH THE ARBITRATOR COULD HAVE BASED HIS DETERMINATION TO INCLUDE RIDERS. HOWEVER, THE AGENCY FAILS TO DEMONSTRATE THAT THERE WAS NO EVIDENCE OR TESTIMONY FOR SUCH AN AWARD. THE AGENCY'S PRIMARY ASSERTION THAT THE RECORD IS "DEVOID OF EVIDENCE" IS DIRECTLY CONTRADICTED BY THE ACTIVITY'S POST HEARING BRIEF SUBMITTED TO THE ARBITRATOR. IN THAT BRIEF THE ACTIVITY EXPRESSLY ACKNOWLEDGED BOTH THAT THE UNION "SEEKS OVERTIME PAY FOR EXEMPT EMPLOYEES WHO . . . RIDE TO THE FIELD IN A GOVERNMENT VEHICLE" AND THAT "(A)T THE HEARING THE SCOPE OF THE GRIEVANCE WAS DEFINED TO INCLUDE NOT ONLY (EXEMPT) DRIVERS BUT THOSE WHO RIDE." ADDITIONALLY, THE ACTIVITY ALSO CONCEDED THAT "(I)N THE INTEREST OF AN EXPEDITIOUS HEARING," IT DID NOT ATTEMPT TO "LIMIT EVIDENCE OR OBJECT TO THE INTRODUCTION OF EVIDENCE ON THIS POINT." CONSEQUENTLY, THE AGENCY'S SECOND EXCEPTION PROVIDES NO BASIS FOR FINDING THE AWARD DEFICIENT UNDER 5 U.S.C. 7122(A) AND SECTION 2425.3 OF THE AUTHORITY'S RULES. IN ITS THIRD EXCEPTION, THE AGENCY CONTENDS THAT THE AWARD, AS CLARIFIED, IS CONTRARY TO LAW, SPECIFICALLY 5 U.S.C. 5542. /3/ IN SUPPORT OF THIS EXCEPTION, THE AGENCY ARGUES THAT PURSUANT TO SECTION 5542 THE RIDERS MUST HAVE BEEN PERFORMING WORK AND SUCH WORK MUST HAVE BEEN "OFFICIALLY ORDERED OR APPROVED" IN ORDER TO BE COMPENSATED FOR THEIR TRAVEL TIME. CITING CASES THAT "HAVE ADDRESSED THE QUESTION OF TRAVEL TIME AS OVERTIME WHERE ALL THE EMPLOYEE OR EMPLOYEES DID WAS TRAVEL FROM A HEADQUARTERS SITE TO A WORK SITE," /4/ THE AGENCY CLAIMS THAT THE ARBITRATOR FAILED TO CONSIDER LEGAL PRECEDENT PERTAINING TO RIDERS AND THAT THE AWARD IS NOT SUPPORTED BY CASE LAW UNDER 5 U.S.C. 5542. THE AUTHORITY FINDS THAT THE AGENCY HAS FAILED TO DEMONSTRATE IN WHAT MANNER THE AWARD, AS CLARIFIED, IS CONTRARY TO LAW. AS WAS NOTED, THE ARBITRATOR EXPRESSLY OBSERVED THAT OVERTIME PAYMENTS ARE CONTROLLED BY 5 U.S.C. 5542. MOREOVER, IN TERMS OF THIS CASE, THE ARBITRATOR NOTED THAT UNDER DECISIONS OF THE COMPTROLLER GENERAL, TRAVEL TIME OF EMPLOYEES WHO REPORT TO HEADQUARTERS BEFORE TRAVELING TO A WORKSITE IS COMPENSABLE WHEN REPORTING TO HEADQUARTERS IS INCIDENT TO AN EMPLOYEE'S WORK. IN PARTICULAR, THE ARBITRATOR RELIED ON THE DECISION OF THE COMPTROLLER GENERAL IN 52 COMP.GEN. 446, 450(1973) WHICH RELEVANTLY PROVIDES: (WHEN EMPLOYEES) ARE REQUIRED TO REPORT FIRST TO HEADQUARTERS AND FROM THERE TO TRAVEL TO THEIR (WORK SITE, AND) (W)HERE THAT REQUIREMENT IS FOR PURPOSES OTHER THAN MERELY FACILITATING THEIR USE OF GOVERNMENT TRANSPORTATION AND IS REGARDED AS WITHIN THEIR REGULARLY SCHEDULED TOURS OF DUTY, INCLUDING REGULARLY SCHEDULED OVERTIME, OR WHERE IT IS INCIDENT TO THEIR WORK, THE TIME IN TRAVEL FROM (THEIR) HEADQUARTERS MAY BE REGARDED AS HOURS OF WORK. APPLYING THIS RULE TO THE FACTS BEFORE HIM, THE ARBITRATOR DETERMINED THAT THE EMPLOYEES' REPORTING TO HEADQUARTERS IS "INCIDENT TO THE EXEMPT EMPLOYEES' WORK AS PROFESSIONAL EMPLOYEES." SPECIFICALLY, HE FOUND THAT THESE EMPLOYEES MAINTAINED DESKS AT HEADQUARTERS AND THAT IT WAS NECESSARY FOR THEM TO REPORT TO HEADQUARTERS TO COORDINATE THEIR ACTIVITIES WITH OTHER EMPLOYEES, RECEIVE MESSAGES, COMMUNICATE WITH SUPERVISORS, OBTAIN AND SECURE EQUIPMENT, AND REFUEL VEHICLES. FURTHERMORE, THE ARBITRATOR FOUND UNDER THE AGENCY'S OWN DIRECTIVES THAT ACTIVITIES SUCH AS OBTAINING AND SECURING EQUIPMENT AND REFUELING VEHICLES EXPRESSLY CONSTITUTED WORK AND THAT IT WAS CLEAR THAT SUCH WORK WAS OFFICIALLY ORDERED OR APPROVED. HE ALSO REJECTED THE ACTIVITY'S ARGUMENT THAT ANY ENTITLEMENT SHOULD BE LIMITED SOLELY TO DRIVERS BECAUSE HE COULD FIND NO DISTINCTION BETWEEN THE DUTIES OR TRAVEL TIME FOR DRIVERS AND RIDERS. ACCORDINGLY, AS HIS AWARD HE GRANTED COMPENSATION TO BOTH. THE AGENCY HAS NOT ESTABLISHED THAT IN SUCH CIRCUMSTANCES THE ARBITRATOR'S AWARD IS CONTRARY TO 5 U.S.C. 5542. THE AGENCY HAS NOT DEMONSTRATED THAT THE ARBITRATOR'S APPLICATION IN THIS CASE OF THE DECISION OF THE COMPTROLLER GENERAL IN 52 COMP.GEN. 446(1973) TO FIND THE TRAVEL TIME COMPENSABLE IS CONTRARY TO SECTION 5542. LIKEWISE, THE AGENCY HAS PRESENTED NO EVIDENCE AND RESEARCH HAS NOT DISCLOSED THAT A LEGAL DISTINCTION FOR PURPOSES OF COMPENSATING TRAVEL TIME EXISTS BETWEEN EXEMPT EMPLOYEES WHO DRIVE AND THOSE WHO RIDE. THE CASE LAW CITED BY THE AGENCY IS INAPPOSITE. IN THOSE CASES, TO THE EXTENT THAT THEY INVOLVED EMPLOYEES TRAVELING FROM A HEADQUARTERS SITE TO A WORKSITE AS IN THE PRESENT CASE, THE COURTS FOUND THAT THE TRAVEL INVOLVED THEREIN WAS "ANALOGOUS TO A SUBURBAN DWELLER'S DAILY COMMUTING" AND THEREFORE THE TRAVEL WAS NOT INCLUDABLE IN HOURS OF EMPLOYMENT. MOSSBAUER V. UNITED STATES, 541 F.2D 823, 825(9TH CIR. 1976). THOSE CASES THUS FELL WITHIN THE GENERAL RULE THAT WHEN EMPLOYEES REPORT FIRST TO THEIR HEADQUARTERS IN ORDER TO FACILITATE THEIR USE OF GOVERNMENT TRANSPORTATION TO TRAVEL TO A WORKSITE, THE TRAVEL IS NOT COMPENSABLE. SEE BIGGS V. UNITED STATES, 287 F.2D 908 (CT. CL. 1961); AHEARN V. UNITED STATES, 142 CT.CL. 309(1958). HOWEVER, NONE OF THOSE CASES INVOLVED EMPLOYEES BEING REQUIRED TO REPORT FIRST TO THEIR HEADQUARTERS TO PERFORM CERTAIN DUTIES INCIDENT TO THEIR WORK. THE ARBITRATOR IN THIS CASE CLEARLY RECOGNIZED THE DISTINCTION BETWEEN EMPLOYEES WHO REPORT TO HEADQUARTERS SOLELY TO FACILITATE THEIR USE OF GOVERNMENT TRANSPORTATION AND THOSE WHO ARE REQUIRED TO REPORT FIRST TO HEADQUARTERS FOR REASONS RELATED TO THEIR WORK. IN THIS REGARD HE FOUND THAT "(T)HE EVIDENCE PRESENTED AT THE ARBITRATION HEARING . . . INDICATES THAT REPORTING TO HEADQUARTERS IS INCIDENT TO THE EXEMPT EMPLOYEES' WORK AS PROFESSIONAL EMPLOYEES," AND THAT IT "IS NECESSARY FOR THEM TO REPORT TO HEADQUARTERS" IN ORDER TO PERFORM VARIOUS TASKS REQUIRED OF THEM IN THEIR POSITIONS. THE AWARD IN NO MANNER DIRECTS THE AGENCY TO PAY OVERTIME TO ANY EXEMPT EMPLOYEES OTHER THAN THOSE WHO, AS FOUND BY THE ARBITRATOR, ARE REPORTING TO HEADQUARTERS PRIOR TO TRAVELING TO THE WORKSITE AND PERFORMING WORK REQUIRED OF THEM IN THEIR POSITIONS. THUS, IN LIGHT OF THESE SPECIFIC FACTUAL FINDINGS BY THE ARBITRATOR, THE AWARD IS CONSISTENT WITH COMPTROLLER GENERAL DECISIONS AND APPLICABLE LAW AND THE AGENCY'S THIRD EXCEPTION PROVIDES NO BASIS FOR FINDING THE AWARD DEFICIENT. FOR THE FOREGOING REASONS AND PURSUANT TO SECTION 2425.4 OF THE AUTHORITY'S RULES AND REGULATIONS, THE ARBITRATOR'S AWARD IS SUSTAINED. ISSUED, WASHINGTON, D.C., AUGUST 12, 1981 RONALD W. HAUGHTON, CHAIRMAN HENRY B. FRAZIER III, MEMBER LEON B. APPLEWHAITE, MEMBER FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES: --------------- /1/ 5 U.S.C. 7122(A) PROVIDES: (A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE AUTHORITY AN EXCEPTION TO ANY ARBITRATOR'S AWARD PURSUANT TO THE ARBITRATION (OTHER THAN AN AWARD RELATING TO A MATTER DESCRIBED IN SECTION 7121(F) OF THIS TITLE). IF UPON REVIEW THE AUTHORITY FINDS THAT THE AWARD IS DEFICIENT-- (1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION; OR (2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS; THE AUTHORITY MAY TAKE SUCH ACTION AND MAKE SUCH RECOMMENDATIONS CONCERNING THE AWARD AS IT CONSIDERS NECESSARY, CONSISTENT WITH APPLICABLE LAWS, RULES, OR REGULATIONS. /2/ IN ITS OPPOSITION TO THE AGENCY'S EXCEPTIONS, THE UNION ALSO ARGUES THAT THE EXCEPTIONS WERE NOT TIMELY FILED. THE UNION MAINTAINS THAT THE ARBITRATOR'S CLARIFICATION DID NOT CONSTITUTE A NEW AWARD AND THAT THEREFORE THE FILING PERIOD DID NOT COMMENCE ON THE DATE OF THE CLARIFICATION BUT ON THE DATE OF THE ORIGINAL AWARD WHICH MAKES THE EXCEPTIONS UNTIMELY FILED. BECAUSE THE DEFICIENCIES IN THE AWARD ASSERTED BY THE AGENCY DID NOT ARISE UNTIL THE CLARIFICATION, THE FILING PERIOD IN SUCH CIRCUMSTANCES IN TERMS OF THE AGENCY'S EXCEPTIONS COMMENCED ON THE DATE OF THE AWARD AS CLARIFIED. CONSEQUENTLY, THE AGENCY'S EXCEPTIONS WERE TIMELY FILED AND ARE PROPERLY BEFORE THE AUTHORITY FOR REVIEW. /3/ 5 U.S.C. 5542(1976) PERTINENTLY PROVIDES: SEC. 5542. OVERTIME RATES; COMPUTATION (A) FOR FULL-TIME, PART-TIME AND INTERMITTENT TOURS OF DUTY, HOURS OF WORK OFFICIALLY ORDERED OR APPROVED IN EXCESS OF 40 HOURS IN AN ADMINISTRATIVE WORKWEEK, OR (WITH THE EXCEPTION OF AN EMPLOYEE ENGAGED IN PROFESSIONAL OR TECHNICAL ENGINEERING OR SCIENTIFIC ACTIVITIES FOR WHOM THE FIRST 40 HOURS OF DUTY IN AN ADMINISTRATIVE WORKWEEK IS THE BASIC WORKWEEK AND AN EMPLOYEE WHOSE BASIC PAY EXCEEDS THE MINIMUM RATE FOR GS-10 FOR WHOM THE FIRST 40 HOURS OF DUTY IN AN ADMINISTRATIVE WORKWEEK IS THE BASIC WORKWEEK) IN EXCESS OF 8 HOURS IN A DAY, PERFORMED BY AN EMPLOYEE ARE OVERTIME WORK AND SHALL BE PAID FOR. . . . /4/ THE AGENCY CITES MOSSBAUER V. UNITED STATES, 541 F.2D 823(9TH CIR. 1976), BARTH V. UNITED STATES, 568 F.2D 1329 (CT. CL. 1978), BIGGS V. UNITED STATES, 287 F.2D 908 (CT.CL. 1961) AND AHEARN V. UNITED STATES, 142 CT.CL. 309(1958).