[Claim for Environmental Differential Pay]

B-217900, AUG 27, 1985, OFFICE OF GENERAL COUNSEL

COMPENSATION - ADDITIONAL - ENVIRONMENTAL PAY DIFFERENTIAL HAZARDOUS DUTY - ADMINISTRATIVE DETERMINATION DIGEST: CIVILIAN EMPLOYEE OF THE NAVY IN AN ENGINEERING TECHNICIAN, GENERAL SCHEDULE POSITION WAS DETAILED TO THE WAGE GRADE POSITION OF EXPLOSIVE TEST OPERATOR IN WHICH HE WAS EXPOSED TO HAZARDOUS WORKING CONDITIONS. FIVE WAGE GRADE EMPLOYEES WITH WHOM HE WORKED RECEIVED AN ENVIRONMENTAL PAY DIFFERENTIAL DUE TO THE HAZARDOUS CONDITIONS. AGENCY DENIED PAYMENT TO CLAIMANT SINCE HE WAS A GENERAL SCHEDULE EMPLOYEE. SINCE EMPLOYEE WAS A GENERAL SCHEDULE EMPLOYEE HIS IS NOT ENTITLED TO THE PAY DIFFERENTIAL ALLOWED WAGE GRADE EMPLOYEES BUT THE NAVY SHOULD DETERMINE WHETHER HE MAY RECEIVE HAZARDOUS DUTY PAY PROVIDED FOR GENERAL SCHEDULE EMPLOYEES.

THE HONORABLE HERBERT H. BATES: MEMBER, UNITED STATES HOUSE OF REPRESENTATIVES 739 THIMBLE SHOALS BOULEVARD SUITE 803 NEWPORT NEWS, VIRGINIA 23606

THIS IS IN RESPONSE TO YOUR LETTER OF JANUARY 17, 1985, CONCERNING A CLAIM FILED WITH THIS OFFICE BY YOUR CONSTITUENT, MR. KENNETH L. COOK.

MR. COOK, AN EMPLOYEE OF THE DEPARTMENT OF THE NAVY, WAS DETAILED FROM HIS GENERAL SCHEDULE POSITION TO A WAGE GRADE POSITION IN WHICH HE WAS EXPOSED TO INCENDIARY AND EXPLOSIVE MATERIALS. HE SUBMITTED A CLAIM FOR AN 8 PERCENT ENVIRONMENTAL DIFFERENTIAL, A FORM OF COMPENSATION PAYABLE TO WAGE GRADE EMPLOYEES. ALTHOUGH HE WAS DETAILED TO A WAGE GRADE POSITION, MR. COOK REMAINED IN HIS POSITION AS A GENERAL SCHEDULE EMPLOYEE. GENERAL SCHEDULE EMPLOYEE MAY NOT RECEIVE A WAGE GRADE DIFFERENTIAL. THEREFORE, WE HAVE DETERMINED THAT HE CANNOT BE PAID AN ENVIRONMENTAL DIFFERENTIAL AND, BY MEMORANDUM OF THIS DATE, HAVE ADVISED OUR CLAIMS GROUP THAT HIS CLAIM IS TO BE DISALLOWED. HOWEVER, WE NOTE THAT HE MAY BE ENTITLED TO A HAZARD PAY DIFFERENTIAL. THIS IS A SIMILAR DIFFERENTIAL PAYABLE TO EMPLOYEES HOLDING GENERAL SCHEDULE POSITIONS. AUTHORITY FOR PAYMENT OF THIS DIFFERENTIAL IS FOUND AT 5 U.S.C. SEC. 5545(D) (1982) AND 5 C.F.R. 550.901-907 (1982).

DETERMINATION OF A GENERAL SCHEDULE EMPLOYEE'S ELIGIBILITY FOR A HAZARD PAY DIFFERENTIAL IS A MATTER FOR THE EMPLOYING AGENCY. MR. COOK HAS THE RIGHT TO SUBMIT A CLAIM FOR THIS PARTICULAR DIFFERENTIAL TO THE DEPARTMENT OF THE NAVY FOR ITS DETERMINATION.

WE HOPE THAT THE ABOVE INFORMATION WILL BE OF ASSISTANCE TO MR. COOK.

ASSOCIATE DIRECTOR, CLAIMS GROUP, GGD (ROOM 5858)

GENERAL COUNSEL - HARRY R. VAN CLEVE

KENNETH L. COOK - B-217900-O/M

RETURNED HEREWITH IS YOUR FILE Z-2850233, CONCERNING THE CLAIM OF KENNETH L. COOK.

MR. COOK'S CLAIM IS FOR ENVIRONMENTAL DIFFERENTIAL PAY FOR THE PERIOD DURING WHICH HE WAS DETAILED FROM A GENERAL SCHEDULE TO A WAGE GRADE POSITION. THE CLAIM WAS DENIED BY THE NAVY BASED ON THE FACT THAT MR. COOK CONTINUED TO OCCUPY A GENERAL SCHEDULE POSITION AND, THEREFORE, COULD NOT BE PAID THE ENVIRONMENTAL DIFFERENTIAL AUTHORIZED FOR WAGE GRADE EMPLOYEES. IT IS OUR VIEW THAT MR. COOK IS NOT ELIGIBLE FOR THE WAGE GRADE DIFFERENTIAL.

FOR A PERIOD OF APPROXIMATELY 3 MONTHS BEGINNING OCTOBER 6, 1982, MR. COOK WAS DETAILED FROM HIS POSITION AS AN ENGINEERING TECHNICIAN, GS-00802 -09, TO THE POSITION OF EXPLOSIVE TEST OPERATOR, WG-06517-10. DURING THIS DETAIL MR. COOK ALONGSIDE FIVE EMPLOYEES WHO HELD WAGE GRADE POSITIONS. THEY TESTED A NUMBER OF EXPLOSIVE DEVICES, INCLUDING GUNS, ROCKETS, BOMBS AND ARTILLERY AMMUNITION AND DEMOLITION DEVICES. THE OTHER FIVE EMPLOYEES WERE PAID AN 8 PERCENT ENVIRONMENTAL DIFFERENTIAL AS AUTHORIZED BY FEDERAL PERSONNEL MANUAL SUPPLEMENT 532 1, APPENDIX J, FOR EXPOSURE TO INCENDIARY AND EXPLOSIVE MATERIALS. BECAUSE HE WAS NOT A WAGE GRADE EMPLOYEE MR. COOK WAS NOT PAID SUCH A DIFFERENTIAL.

WE AGREE THAT MR. COOK'S CLAIM, AS STATED, MUST BE DENIED SINCE ENVIRONMENTAL DIFFERENTIAL PAY IS AVAILABLE ONLY TO WAGE GRADE EMPLOYEES. ALTHOUGH MR. COOK WAS DETAILED TO A WAGE GRADE POSITION, HE REMAINED A GENERAL SCHEDULE EMPLOYEE. A DETAILED EMPLOYEE CONTINUES TO BE AN INCUMBENT OF THE POSITION FROM WHICH HE IS DETAILED. "SEE FEDERAL PERSONNEL MANUAL, CHAPTER 300, PARAGRAPH 8-1. THIS OFFICE HAS LONG HELD THAT AN EMPLOYEE IS ENTITLED TO THE SALARY OF THE POSITION TO WHICH HE HAS BEEN APPOINTED, REGARDLESS OF THE DUTIES HE PERFORMS. SEE WILLIAM F. BAKER, B-194022, FEBRUARY 12, 1980. THUS, THE NAVY PROPERLY DETERMINED THAT MR. COOK WAS NOT ENTITLED TO THE WAGE GRADE DIFFERENTIAL FOR THE PERIOD HE WAS DETAILED FROM A GENERAL SCHEDULE TO A WAGE GRADE POSITION. WE NOTE THAT ALTHOUGH MR. COOK MAY NOT BE PAID A WAGE GRADE DIFFERENTIAL, HE MAY BE ELIGIBLE FOR THE HAZARD PAY DIFFERENTIAL AVAILABLE TO GENERAL SCHEDULE EMPLOYEES UNDER CERTAIN CONDITIONS. THE STATUTORY AUTHORITY FOR THIS FORM OF HAZARD DUTY PAY IS FOUND AT 5 U.S.C. SEC. 5545(D) (1982) WHICH PROVIDES THAT THE OFFICE OF PERSONNEL MANAGEMENT SHALL ESTABLISH SCHEDULES OF PAY DIFFERENTIALS FOR IRREGULAR AND INTERMITTENT DUTY INVOLVING UNUSUAL PHYSICAL HARDSHIP OR HAZARD. APPLICABLE REGULATIONS, FOUND AT 5 C.F.R. SEC. 550.901-907 (1982), DEFINE HAZARD PAY DIFFERENTIAL AS "ADDITIONAL PAY FOR THE PERFORMANCE OF IRREGULAR OR INTERMITTENT HAZARDOUS DUTY OR DUTY INVOLVING PHYSICAL HARDSHIP." 5 C.F.R. SEC. 550.902(E).

WHILE THE AGENCY HAS DENIED PAYMENT OF THE ENVIRONMENTAL DIFFERENTIAL, IT APPEARS THAT IT HAS GIVEN NO CONSIDERATION TO MR. COOK'S ENTITLEMENT TO THE HAZARD PAY DIFFERENTIAL DISCUSSED ABOVE. THIS OFFICE HAS LONG HELD THAT WHETHER A PARTICULAR WORK SITUATION WARRANTS A HAZARDOUS DUTY DIFFERENTIAL IS PRIMARILY A MATTER FOR DETERMINATION BY THE EMPLOYING AGENCY, SUBJECT TO THE QUALIFICATION THAT ITS DECISION NOT BE ARBITRARY AND CAPRICIOUS. ORDINARILY, WE WILL NOT SUBSTITUTE OUR JUDGMENT FOR THAT OF THE AGENCY OFFICIALS WHO ARE IN A BETTER POSITION TO INVESTIGATE AND RESOLVE THE MATTER. JOSEPH CONTARINO, ET AL., B-202182, JANUARY 19, 1982. THE NAVY SHOULD BE ADVISED THAT MR. COOK MAY BE ENTITLED TO HAZARD PAY DIFFERENTIAL, ALTHOUGH IT PROPERLY DENIED HIS CLAIM FOR ENVIRONMENTAL DIFFERENTIAL.