B-181498, JAN 30, 1975

B-181498: Jan 30, 1975

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AUTHORITY TO DETERMINE WHETHER AIRCRAFT PROPELLER MECHANICS AT HAMILTON AIR FORCE BASE ARE PERFORMING DUTIES SUFFICIENTLY HAZARDOUS TO ENTITLE THEM TO ENVIRONMENTAL DIFFERENTIAL PAY AUTHORIZED BY APPENDIX J OF FPM SUPPLEMENT 532-1 IS PRIMARILY VESTED IN AGENCY CONCERNED WHICH HAS DETERMINED THAT SUCH PAY IS NOT WARRANTED FOR THIS CLASS OF EMPLOYEES. IS ADVISED THAT THE GAO WILL NOT SUBSTITUTE ITS JUDGMENT FOR THE AGENCY'S IN THE ABSENCE OF CLEAR AND CONVINCING EVIDENCE THAT THE AGENCY'S DETERMINATION WAS ARBITRARY AND CAPRICIOUS. IT IS STATED THAT SUCH EMPLOYEES ARE REQUIRED TO FLY IN MILITARY AIRCRAFT FOR FLIGHT TESTS AND THAT THEY ARE NOT MEMBERS OF THE FLIGHT CREW. 1974) FOR WHICH AN ENVIRONMENTAL DIFFERENTIAL OF 100 PERCENT IS AUTHORIZED.

B-181498, JAN 30, 1975

AUTHORITY TO DETERMINE WHETHER AIRCRAFT PROPELLER MECHANICS AT HAMILTON AIR FORCE BASE ARE PERFORMING DUTIES SUFFICIENTLY HAZARDOUS TO ENTITLE THEM TO ENVIRONMENTAL DIFFERENTIAL PAY AUTHORIZED BY APPENDIX J OF FPM SUPPLEMENT 532-1 IS PRIMARILY VESTED IN AGENCY CONCERNED WHICH HAS DETERMINED THAT SUCH PAY IS NOT WARRANTED FOR THIS CLASS OF EMPLOYEES. VICE PRESIDENT OF NATIONAL UNION REPRESENTING THE EMPLOYEES, IS ADVISED THAT THE GAO WILL NOT SUBSTITUTE ITS JUDGMENT FOR THE AGENCY'S IN THE ABSENCE OF CLEAR AND CONVINCING EVIDENCE THAT THE AGENCY'S DETERMINATION WAS ARBITRARY AND CAPRICIOUS.

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES - HAZARDOUS DUTY PAY:

BY LETTER OF JUNE 6, 1974, WITH ENCLOSURES, THE NATIONAL VICE PRESIDENT OF THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES (NAGE) REQUESTED THE ASSISTANCE OF THE GENERAL ACCOUNTING OFFICE IN RESOLVING A QUESTION OF ENTITLEMENT TO ENVIRONMENTAL DIFFERENTIAL PAY FOR CERTAIN PREVAILING RATE EMPLOYEES OF THE DEPARTMENT OF THE AIR FORCE AT THE HEADQUARTERS OF THE 452ND TACTICAL AIRLIFT WING, HAMILTON AIR FORCE BASE, CALIFORNIA 94934, WHO HOLD THE POSITION OF AIRCRAFT PROPELLER MECHANIC, WG-8554-12.

IT IS STATED THAT SUCH EMPLOYEES ARE REQUIRED TO FLY IN MILITARY AIRCRAFT FOR FLIGHT TESTS AND THAT THEY ARE NOT MEMBERS OF THE FLIGHT CREW. ACCORDINGLY, THE NAGE BELIEVES THAT CERTAIN OF THE DUTIES OF THESE EMPLOYEES COME WITHIN THE DUTIES DESCRIBED IN PART I OF APPENDIX J TO FEDERAL PERSONNEL MANUAL SUPPLEMENT 532-1 (APRIL 15, 1974) FOR WHICH AN ENVIRONMENTAL DIFFERENTIAL OF 100 PERCENT IS AUTHORIZED. IT IS ALSO CONTENDED THAT THE PROVISIONS OF THAT APPENDIX MUST BE FOLLOWED BY AGENCIES.

FPM SUPPLEMENT 532-1 PARAGRAPH S8-7F(1) (JAN. 16, 1973) REQUIRES AN AGENCY TO PAY THE ENVIRONMENTAL DIFFERENTIAL SPECIFIED IN APPENDIX J TO A PREVAILING RATE EMPLOYEE WHEN HE PERFORMS ASSIGNED DUTIES INVOLVING THE CONDITIONS LISTED IN APPENDIX J. HOWEVER, PARAGRAPH S8-7G(2) OF THOSE REGULATIONS REQUIRES EACH AGENCY TO EVALUATE ITS ACTIVITIES TO DETERMINE WHETHER THEY ARE COVERED BY THE CATEGORIES DEFINED IN APPENDIX J. ACCORDINGLY, THE AUTHORITY TO DETERMINE WHETHER THE ASSIGNED DUTIES OF AN EMPLOYEE INVOLVE SITUATIONS FOR WHICH AN ENVIRONMENTAL DIFFERENTIAL IS AUTHORIZED BY APPENDIX J IS VESTED PRIMARILY IN THE AGENCY CONCERNED. THE RECORD CONTAINS A LETTER OF MARCH 28, 1974, FROM THE DEPARTMENT OF THE AIR FORCE, STATING THAT:

"A CAREFUL STUDY OF THE FACTS WAS ACCOMPLISHED BY THE FLYING SAFETY OFFICE AND CLASSIFICATION BRANCH OF CIVILIAN PERSONNEL. IT WAS DETERMINED THAT THE PROCEDURES INVOLVED *** CANNOT BE INTERPRETED AS EXAMPLES WHICH MIGHT BE CONSIDERED UNUSUALLY SEVERE WORKING CONDITIONS OR EXCEEDING THE PARAMETERS OF NORMAL OPERATIONAL TEST PROCEDURES OR DELIBERATELY OPERATING THE AIRCRAFT BEYOND ITS KNOWN DESIGNED CAPABILITIES OR SAFE OPERATIONAL LIMITS."

CONSEQUENTLY, THE DEPARTMENT OF THE AIR FORCE DETERMINED THAT THE WORK SITUATION DID NOT WARRANT HAZARD PAY. IN THE ABSENCE OF CLEAR AND CONVINCING EVIDENCE NEGATING THE INFORMATION CONTAINED IN THE ADMINISTRATIVE REPORT OF THE AGENCY, OR WHICH INDICATES THAT THE AGENCY DETERMINATION WAS ARBITRARY AND CAPRICIOUS, THE GENERAL ACCOUNTING OFFICE WILL NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF AGENCY OFFICIALS WHO ARE IN A BETTER POSITION TO INVESTIGATE AND DETERMINE THE RIGHTS AND OBLIGATIONS OF THE PARTIES. SEE: 51 COMP. GEN. 541, 543; 46 COMP. GEN. 740, 744; 41 COMP. GEN. 47, 54; 40 COMP. GEN. 180; 37 COMP. GEN. 797, 798; 36 COMP. GEN. 529, 530; 31 COMP. GEN. 288, 289.

IF, HOWEVER, ANY OF THE EMPLOYEES AT THE HAMILTON AIR FORCE BASE FEEL THAT SPECIAL CIRCUMSTANCES WARRANT THE MAKING OF AN EXCEPTION IN HIS OR HER CASE, THE EMPLOYEE MAY SUBMIT AN INDIVIDUAL CLAIM TO OUR TRANSPORTATION AND CLAIMS DIVISION THROUGH THE EMPLOYEE'S AGENCY FOR FURTHER CONSIDERATION.