B-179307, JAN 14, 1974

B-179307, JAN 14, 1974

1. ENTITLEMENT OF A WAGE BOARD EMPLOYEE TO HAZARDOUS DUTY OR ENVIRONMENTAL DIFFERENTIAL PAY IS SUBJECT TO DETERMINATION BY AN ADMINISTRATIVE AGENCY PURSUANT TO REGULATIONS PROMULGATED BY THE CIVIL SERVICE COMMISSION IN FPM SUPPLEMENT 532-1, S8-7, UNDER AUTHORITY OF 5 U.S.C. 5343(C)(4). 2. AN ELECTRICIAN FOR THE FUEL AND AMMUNITION DEPARTMENT OF A NAVAL SUPPLY CENTER IS NOT ENTITLED TO HAZARDOUS DUTY PAY WHEN HIS WORK IS IN AN AREA WHERE EXPLOSIVE MATERIAL IS IN A DORMANT CONDITION.

TO MR. ELLIS A. DEERMAN:

THIS REFERS FURTHER TO YOUR LETTER OF JULY 3, 1973, APPEALING THE SETTLEMENT OF OUR TRANSPORTATION AND CLAIMS DIVISION DATED FEBRUARY 28, 1973, DENYING YOUR CLAIM FOR ENVIRONMENTAL DIFFERENTIAL PAY FOR EXPOSURE TO HAZARD.

AS YOUR LETTER STATES, THE CLAIMS SETTLEMENT DESCRIBED YOUR WORK AS INVOLVING "FUEL HANDLING AND STORAGE OPERATIONS," WHEREAS YOUR ORIGINAL CLAIM STATED THAT YOU ARE "THE ELECTRICIAN FOR THE AREA" (PRESUMABLY THE FUEL AND AMMUNITION DEPARTMENT OF THE NAVAL SUPPLY CENTER (NSC)). YOUR LETTER OF JULY 3, 1973, FURTHER DESCRIBES YOUR WORK IN THE FOLLOWING TERMS:

"I CHECK ALL THE AMMUNITION BARGES (FULLY LOADED WITH AMMUNITION), GO INTO MAGAZINES AND CHECK GROUNDING WIRES, LIGHTNING RODS, AND SO FORTH. CHECK ALL THE SECURITY LIGHTING IN THE MAGAZINE AREA, THEREFORE, I AM JUST AS EXPOSED TO THE HAZARDS AS THE ORDNANCE CREW, FOR THE REASONS STATED."

APPARENTLY YOUR CLAIM WAS AMONG OTHERS WHICH WERE THE SUBJECT OF AN ADMINISTRATIVE REPORT OF THE NSC TO THE NAVY REGIONAL FINANCE CENTER IN CONNECTION WITH A REVIEW OF THE CIRCUMSTANCES UNDER WHICH CONSIDERATION HAD BEEN GIVEN TO PAYMENT OF AN ENVIRONMENTAL DIFFERENTIAL TO PERSONNEL OF THE FUEL AND AMMUNITION DEPARTMENT WHO HANDLED AVIATION GAS AND JET FUEL. ACCORDING TO THAT REPORT A THOROUGH STUDY WAS MADE OF HAZARDS AND WORKING CONDITIONS IN THE FUEL AND AMMUNITION DEPARTMENT. THE STUDY FAILED TO SUPPORT A DETERMINATION THAT ANY OF THE FUEL AND AMMUNITION HANDLING WORK IS OF SUCH A NATURE AS TO WARRANT PAYMENT OF "HIGH DEGREE HAZARD" DIFFERENTIAL AS DESCRIBED FOR COMPARATIVE PURPOSES BY THE CIVIL SERVICE COMMISSION (CSC) IN APPENDIX J TO FEDERAL PERSONNEL MANUAL (FPM), SUPPLEMENT 532-1. HOWEVER, EMPLOYEES WORKING WITH LOADING, UNLOADING, STORAGE AND HANDLING OF EXPLOSIVE MATERIALS WERE CONSIDERED TO BE COVERED BY THE LOW DEGREE HAZARD REGULATIONS AND HAZARD DIFFERENTIAL WAS CONSIDERED APPROPRIATE FOR WORK INVOLVING THE CLEANING OF FUEL STORAGE TANKS.

UPON REVIEWING THE RECORD IN YOUR CASE IT OCCURRED TO US THAT ELEMENTS OF YOUR POSITION AS AN ELECTRICIAN MIGHT DIFFERENTIATE IT FROM THE OTHER POSITIONS DESCRIBED, GENERALLY, AS BEING ENGAGED IN FUEL HANDLING AND STORAGE. ACCORDINGLY, AS WE INDICATED IN OUR LETTER TO YOU OF NOVEMBER 13, 1973, WE REQUESTED A SUPPLEMENTAL REPORT FROM THE DEPARTMENT OF THE NAVY AS TO WHETHER CONSIDERATION HAD BEEN GIVEN SEPARATELY TO THE HAZARDOUS ASPECTS OF YOUR POSITION IN COMPARISON WITH THOSE OF OTHER WORKERS IN THE SAME AREA. IN REPLY, THE OFFICE OF CIVILIAN MANPOWER MANAGEMENT HAS ADVISED AS FOLLOWS:

"UNDER THE CATEGORY FOR EXPLOSIVES AND INCENDIARY MATERIAL (OF FPM SUPPLEMENT 532-1; APPENDIX J) AN ENVIRONMENTAL DIFFERENTIAL IS AUTHORIZED FOR PREVAILING RATE EMPLOYEES WHEN WORKING WITH OR IN CLOSE PROXIMITY TO OPERATIONS INVOLVED IN THE RESEARCH, TESTING, MANUFACTURING, INSPECTING, RENOVATION, LOADING, UNLOADING, AND HAULING OF EXPLOSIVE AND INCENDIARY ORDNANCE MATERIAL WHEN PROTECTIVE MEASURES AND/OR SAFETY DEVICES HAVE NOT PRACTICALLY ELIMINATED THE POTENTIAL FOR SERIOUS PERSONAL INJURY OR LOSS OF LIFE. WORKING AROUND AMMUNITION THAT IS IN STORAGE AND IS NOT BEING PROCESSED, HANDLED, OR INSPECTED, HOWEVER, DOES NOT QUALIFY AN EMPLOYEE FOR ENVIRONMENTAL PAY UNDER THAT CATEGORY.

"WE HAVE BEEN INFORMED BY THE ACTIVITY THAT MR. DEERMAN PERFORMS MAINTENANCE OPERATIONS *** ONLY WHEN THE EXPLOSIVE MATERIAL IN THE IMMEDIATE VICINITY IS IN A DORMANT CONDITION. HE IS NOT REQUIRED TO CARRY OUT THE ASSIGNED TASKS IN CLOSE PROXIMITY TO AMMUNITION THAT IS BEING LOADED, UNLOADED, OR OTHERWISE HANDLED."

SUBSECTION 5343(C)(4) OF TITLE 5, U.S.C. REQUIRES THE CIVIL SERVICE COMMISSION TO REGULATE HAZARDOUS DUTY AND ENVIRONMENTAL PAY DIFFERENTIALS FOR PREVAILING RATE EMPLOYEES OF THE GOVERNMENT. WITHIN THE SCOPE OF THE CSC REGULATIONS PROMULGATED IN PARAGRAPH S8-7 FPM SUPPLEMENT 532-1, IT IS THE RESPONSIBILITY OF THE EXECUTIVE DEPARTMENTS TO DETERMINE WHICH POSITIONS WITHIN THEIR ESTABLISHEMNTS ARE ENTITLED TO ADDITIONAL PAY FOR ENVIRONMENTAL CONDITIONS AND HAZARDOUS DUTY.

SINCE THE DEPARTMENT OF THE NAVY HAS DETERMINED IN ACCORDANCE WITH CIVIL SERVICE COMMISSION REGULATIONS THAT YOUR POSITION DOES NOT QUALIFY FOR HAZARDOUS DUTY PAY AND SINCE THAT DETERMINATION APPEARS TO BE CONSISTENT WITH THE CONTROLLING REGULATIONS, THIS OFFICE HAS NO AUTHORITY TO MAKE A CONTRARY FINDING.

ACCORDINGLY, THE SETTLEMENT OF THE TRANSPORTATION AND CLAIMS DIVISION IS HEREBY AFFIRMED.