B-180962, MAY 14, 1975

B-180962, MAY 14, 1975

SINCE CANAL ZONE GOVERNMENT HAS AUTHORITY UNDER 2 C.Z.C. SEC. 144 TO FIX BASIC COMPENSATION OF AGENCY EMPLOYEES, CLAIM OF CANAL ZONE LEPROSARIUM EMPLOYEES, WHO ALLEGED THAT THEIR PAY WAS IMPROPERLY FIXED, SHOULD NOT HAVE BEEN ADJUDICATED UNTIL A DETERMINATION OF THE EMPLOYING AGENCY WAS OBTAINED. HENCE THE SETTLEMENT ISSUED ON THIS CLAIM IS HEREBY VACATED AND CLAIM IS BEING REFERRED TO THE CANAL ZONE GOVERNMENT FOR A DETERMINATION. CLAIMANTS MAY HAVE THE AGENCY DECISION ON THEIR CLAIM REVIEWED BY THIS OFFICE, IF THEY ARE DISSATISFIED WITH THE AGENCY DETERMINATION OF THE ISSUES INVOLVED.

APPROPRIATIONS OF PAY ESTABLISHED FOR CANAL ZONE LEPROSARIUM EMPLOYEES:

THIS ACTION IS A RECONSIDERATION OF SETTLEMENT OF FEBRUARY 26, 1973, BY THE TRANSPORTATION AND CLAIMS DIVISION OF OUR OFFICE, WHICH DENIED THE CLAIM FOR HAZARDOUS DUTY PAY OF MR. JOHN R. THOMSON, AN EMPLOYEE OF THE CANAL ZONE GOVERNMENT AT THE PALO SECO HOSPITAL, WHO IS REPRESENTATIVE OF 33 SIMILARLY SITUATED CLAIMANTS.

THE CLAIMANTS CONTEND THAT, AS EMPLOYEES AND FORMER EMPLOYEES OF THE CANAL ZONE GOVERNMENT AT PALO SECO HOSPITAL, WHOSE WORK AT THE HOSPITAL INVOLVED OR INVOLVES INTIMATE CONTACT WITH PERSONS AFFLICTED WITH LEPROSY, THEY ARE ENTITLED TO HAZARDOUS DUTY PAY FOR VARIOUS PERIODS BETWEEN SEPTEMBER 12, 1962, AND SEPTEMBER 12, 1972. THEY NOTE THAT PUBLIC HEALTH SERVICE EMPLOYEES AND MILITARY PERSONNEL ASSIGNED TO SUCH DUTY ARE ENTITLED TO SUCH HAZARDOUS DUTY PAY UNDER STATUTE. IN THIS REGARD 42 U.S.C. SEC. 210(E) (1970) PROVIDES:

"(E) ADDITIONAL PAY FOR LEPROSY DETAIL.

"WHENEVER ANY NONCOMMISSIONED OFFICER OR OTHER EMPLOYEE OF THE SERVICE IS ASSIGNED FOR DUTY WHICH THE SURGEON GENERAL FINDS REQUIRES INTIMATE CONTACT WITH PERSONS AFFLICTED WITH LEPROSY, HE MAY BE ENTITLED TO RECEIVE, AS PROVIDED BY REGULATIONS OF THE PRESIDENT, IN ADDITION TO ANY PAY OR COMPENSATION TO WHICH HE MAY OTHERWISE BE ENTITLED, NOT MORE THAN ONE-HALF OF SUCH PAY OR COMPENSATION."

AND 37 U.S.C. SEC. 301(A)(7) PROVIDES:

"SEC. 301. INCENTIVE PAY: HAZARDOUS DUTY.

"(A) SUBJECT TO REGULATIONS PRESCRIBED BY THE PRESIDENT, A MEMBER OF A UNIFORMED SERVICE WHO IS ENTITLED TO BASIC PAY IS ALSO ENTITLED TO INCENTIVE PAY, IN THE AMOUNT SET FORTH IN SUBSECTION (B) OR (C) OF THIS SECTION, FOR THE PERFORMANCE OF HAZARDOUS DUTY REQUIRED BY ORDERS. FOR THE PURPOSES OF THIS SUBSECTION, 'HAZARDOUS DUTY' MEANS DUTY -

"(7) INVOLVING INTIMATE CONTACT WITH PERSONS AFFLICTED WITH LEPROSY

THE PALO SECO HOSPITAL EMPLOYEES FURTHER CONTEND THAT PURSUANT TO LAW, 2 C.Z.C. SEC. 144 (1962), THEY ARE ENTITLED TO RATES OF BASIC COMPENSATION COMPARABLE TO THAT RECEIVED BY EMPLOYEES OCCUPYING SIMILAR POSITIONS IN THE CONTINENTAL UNITED STATES. ALTHOUGH THEY ACKNOWLEDGE THAT THEIR COMPENSATION IS COMPARABLE TO THAT RECEIVED BY HOSPITAL EMPLOYEES IN THE CONTINENTAL UNITED STATES, THEY ARGUE THAT THEY DO NOT RECEIVE COMPENSATION COMPARABLE TO EMPLOYEES OF FEDERAL GOVERNMENT LEPROSARIUMS IN THE CONTINENTAL UNITED STATES INASMUCH AS THESE FACILITIES ARE STAFFED BY PUBLIC HEALTH SERVICE EMPLOYEES WHO ARE ENTITLED TO ADDITIONAL PAY, AS INDICATED ABOVE.

IN ADDITION, THE CLAIMANTS ALLEGE THAT THEIR POSITION CLASSIFICATIONS SHOULD HAVE, BUT DID NOT, TAKE INTO ACCOUNT THE DEGREE OF HAZARD TO WHICH THEY ARE EXPOSED ON A CONTINUAL BASIS. ON THE STRENGTH OF THESE CONTENTIONS, THE CLAIMANTS URGE THIS OFFICE TO RECONSIDER THE DISALLOWANCE OF THEIR CLAIM.

WITH REGARD TO THE CLAIMANTS' CONTENTION THAT THEY ARE ENTITLED TO COMPENSATION COMPARABLE TO THAT RECEIVED BY SIMILARLY SITUATED EMPLOYEES WITHIN THE CONTINENTAL UNITED STATES, WHICH THEY MAINTAIN ARE PUBLIC HEALTH SERVICE EMPLOYEES WHO STAFF FEDERAL LEPROSARIUMS, WE NOTE THAT THE PROVISIONS OF THE LAW ON WHICH THE CLAIMANTS RELY IS 2 C.Z.C. SEC. 144 (1962) WHICH PROVIDES:

"SEC. 144. COMPENSATION

"(A) THE HEAD OF EACH DEPARTMENT, IN ACCORDANCE WITH THIS SUBCHAPTER, SHALL ESTABLISH, AND FROM TIME TO TIME MAY REVISE, THE RATES OF BASIC COMPENSATION FOR POSITIONS AND EMPLOYEES UNDER HIS JURISDICTION.

"(B) THE RATES OF BASIC COMPENSATION MAY BE ESTABLISHED AND REVISED IN RELATION TO THE RATES OF COMPENSATION FOR THE SAME OR SIMILAR WORK PERFORMED IN THE CONTINENTAL UNITED STATES OR IN SUCH AREAS OUTSIDE THE CONTINENTAL UNITED STATES AS MAY BE DESIGNATED IN THE REGULATIONS REFERRED TO IN SECTION 155(A) OF THIS TITLE.

"(C) THE HEAD OF EACH DEPARTMENT MAY GRANT INCREASES IN RATES OF BASIC COMPENSATION IN AMOUNTS NOT TO EXCEED THE AMOUNTS OF THE INCREASES GRANTED, FROM TIME TO TIME, BY ACT OF CONGRESS IN CORRESPONDING RATES OF COMPENSATION IN THE APPROPRIATE SCHEDULE OR SCALE OF PAY. THE HEAD OF THE DEPARTMENT CONCERNED MAY MAKE THE INCREASES EFFECTIVE AS OF SUCH DATE AS HE DESIGNATES BUT NOT EARLIER THAN THE EFFECTIVE DATE OF THE CORRESPONDING INCREASES PROVIDED BY THE ACT OF CONGRESS.

"(D) A RATE OF BASIC COMPENSATION ESTABLISHED UNDER THIS SECTION MAY NOT EXCEED BY MORE THAN 25 PERCENT, WHEN INCREASED BY THE AMOUNTS OF THE ALLOWANCE AND THE DIFFERENTIAL AUTHORIZED BY SECTION 146 OF THIS TITLE, THE RATE OF BASIC COMPENSATION FOR THE SAME OR SIMILAR WORK PERFORMED IN THE CONTINENTAL UNITED STATES BY EMPLOYEES OF THE GOVERNMENT OF THE UNITED STATES. ***"

FROM OUR READING OF THE ABOVE-QUOTED STATUTE, WE FIND NO MANDATORY REQUIREMENT THAT THE SALARIES OF THE CANAL ZONE GOVERNMENT EMPLOYEES BE FIXED SO AS TO BE COMPARABLE TO SIMILARLY SITUATED EMPLOYEES WITHIN THE CONTINENTAL UNITED STATES. RATHER, WE FIND THAT SUBSECTION (B) OF THE STATUTE IS PERMISSIVE WITH RESPECT TO COMPARABILITY OF COMPENSATION.

HOWEVER, WE NOTE THAT REGULATIONS PROMULGATED BY THE SECRETARY OF THE ARMY, CONTAINED IN 35 C.F.R. SEC. 253.131, IMPLEMENTING THE ABOVE QUOTED STATUTE, MAKES IT MANDATORY THAT BASE RATES OF PAY FOR A CERTAIN CATEGORY OF POSITIONS BE ESTABLISHED IN RELATION TO SIMILAR POSITIONS IN THE CONTINENTAL UNITED STATES. SEE FOR EXAMPLE, REINHEIMER V. PANAMA CANAL COMPANY, 342 F. SUPP. 315 (1972). THESE REGULATIONS PROVIDE AS FOLLOWS:

"PAY RATES AND ALLOWANCES

"SEC. 253.131 DERIVATION OF BASE RATES OF PAY.

"(A) RATES OF PAY FOR POSITIONS IN THE SPECIAL CATEGORY BELOW THE SKILL OR GRADE LEVEL FOR WHICH EMPLOYEES MUST BE RECRUITED FROM THE CONTINENTAL UNITED STATES, FOR POSITIONS AT THE LEVEL OF GRADE 3 OR BELOW IN THE NONMANUAL CATEGORY AND FOR POSITIONS AT LEVEL 9 OR BELOW IN THE MANUAL CATEGORY SHALL BE ESTABLISHED IN RELATION TO RATES OUTSIDE THE CONTINENTAL UNITED STATES.

"(B) EXCEPT AS OTHERWISE PROVIDED BY THIS SECTION, RATES OF PAY FOR POSITIONS ABOVE THE LEVELS COVERED BY PARAGRAPH (A) OF THIS SECTION AND RATES FOR ALL SECURITY POSITIONS SHALL BE ESTABLISHED IN RELATION TO RATES FOR THE SAME OR SIMILAR WORK PERFORMED IN THE CONTINENTAL UNITED STATES BY EMPLOYEES OF THE GOVERNMENT OF THE UNITED STATES. THE U.S. RATES USED FOR THIS PURPOSE SHALL BE REDUCED BY THE AMOUNT OF TAX ALLOWANCE PRESCRIBED BY SEC. 253.134.

"(C) RATES OF PAY FOR PILOTS EMPLOYED IN THE NAVIGATION OF VESSELS IN CANAL ZONE WATER SHALL BE ESTABLISHED IN RELATION TO GRADE LEVELS 12 TO 14 INCLUSIVE OF THE NON-MANUAL SCHEDULE AS THE PANAMA CANAL COMPANY MAY DETERMINE.

"(D) THE RATES ESTABLISHED UNDER THIS SECTION CONSTITUTE THE BASE SALARY OR WAGE RATES FOR THE POSITIONS IN QUESTION."

IT IS IMPORTANT TO NOTE THAT BOTH THE STATUTE AND THE IMPLEMENTING REGULATIONS PROVIDE THAT BASIC COMPENSATION OF THE CLASS OF CANAL ZONE GOVERNMENT EMPLOYEES AFFECTED IS TO BE ESTABLISHED SO AS TO BE COMPARABLE TO COMPENSATION RECEIVED BY FEDERAL EMPLOYEES IN THE CONTINENTAL UNITED STATES, WHO DO SIMILAR WORK. HENCE IT WOULD APPEAR THAT THE THRUST OF THE STATUTE AND REGULATION IS TO MAKE BASIC COMPENSATION OF THE CLASS OF CANAL ZONE EMPLOYEES TO WHICH THE STATUTE AND REGULATION APPLIES EQUIVALENT TO TOTAL COMPENSATION OF FEDERAL EMPLOYEES IN THE CONTINENTAL UNITED STATES. HOWEVER, IT IS ALSO NOTED THAT 2 C.Z.C. SEC. 144(D) (1962) EFFECTIVELY LIMITS THE TOTAL COMPENSATION INCLUDING ALLOWANCES AND DIFFERENTIALS AUTHORIZED BY 2 C.Z.C. SEC. 146 (1962), OF CANAL ZONE GOVERNMENT EMPLOYEES AFFECTED BY THE STATUTE AND REGULATION. UNDER THIS PROVISION, THE BASIC COMPENSATION OF SUCH EMPLOYEES MAY NOT EXCEED BY MORE THAN 25 PERCENT THE RATE OF BASIC COMPENSATION FOR THE SAME WORK PERFORMED IN THE CONTINENTAL UNITED STATES BY EMPLOYEES OF THE GOVERNMENT OF THE UNITED STATES.

IN LIGHT OF THE FOREGOING, IT WOULD APPEAR THAT THE BASIC COMPENSATION ENTITLEMENT OF PALO SECO LEPROSARIUM EMPLOYEES, WHEN INCREASED BY AMOUNTS OF THE ALLOWANCE FOR TAXES AND THE TROPICAL DIFFERENTIAL, WOULD BE LIMITED TO AN AMOUNT WHICH WOULD NOT EXCEED BY MORE THAN 25 PERCENT THE RATE OF BASIC COMPENSATION, EXCLUSIVE OF LEPROSY DETAIL PAY OF PUBLIC HEALTH SERVICE EMPLOYEES PERFORMING SIMILAR WORK IN LEPROSARIUMS LOCATED IN THE CONTINENTAL UNITED STATES, PROVIDED THAT SUCH PALO SECO LEPROSARIUM EMPLOYEES WERE OTHERWISE ENTITLED TO HAVE THEIR PAY FIXED IN THIS MANNER.

THE RECORD BEFORE US DOES NOT INDICATE THAT THE CLAIMANTS HAVE EXERCISED ANY RIGHTS THAT THEY MAY HAVE TO UTILIZE AGENCY GRIEVANCE PROCEDURES, SINCE 1954, CONCERNING THE APPROPRIATENESS OF THEIR BASIC COMPENSATION UNDER PROVISIONS OF 35 C.F.R. SEC. 253.261, WHICH PROVIDES:

"SEC. 253.261 GRIEVANCE PROCEDURES.

"EACH EMPLOYING DEPARTMENT SHALL MAKE AVAILABLE TO ITS EMPLOYEES EQUAL RIGHTS TO UTILIZE ANY GRIEVANCE PROCEDURE ESTABLISHED BY SUCH DEPARTMENT."

SIMILARLY, THE RECORD DOES NOT INDICATE THAT THE CLAIMANTS HAVE EXERCISED THEIR RIGHTS TO APPEAL THEIR POSITION CLASSIFICATION UNDER PROVISIONS OF 2 C.Z.C. SEC. 151 (1962) AND THE REGULATION THAT IMPLEMENTS THAT STATUTE, 35 C.F.R. SEC. 253.264. THE AFOREMENTIONED STATUTE PROVIDES AS FOLLOWS:

"SEC. 151. REVIEW AND ADJUSTMENT OF CLASSIFICATIONS, GRADES, AND PAY LEVEL; BY DEPARTMENT

"AN EMPLOYEE MAY REQUEST AT ANY TIME THAT THE DEPARTMENT IN WHICH HE IS EMPLOYED:

"(1) REVIEW THE CLASSIFICATION OF HIS POSITION OR THE GRADE OR PAY LEVEL FOR HIS POSITION, OR BOTH; AND

"(2) REVISE OR ADJUST SUCH CLASSIFICATION, GRADE, AND PAY LEVEL, OR ANY OF THEM, AS THE CASE MAY BE.

THE REQUEST FOR REVIEW AND REVISION OR ADJUSTMENT SHALL BE SUBMITTED AND ADJUDICATED IN ACCORDANCE WITH THE REGULARLY ESTABLISHED APPEALS PROCEDURE OF THE DEPARTMENT."

AND THE REGULATION PROVIDES:

"SEC. 253.264 CLASSIFICATION APPEALS.

"ANY EMPLOYEE MAY REQUEST AT ANY TIME THAT HIS EMPLOYING DEPARTMENT REVIEW AND REVISE OR ADJUST THE CLASSIFICATION, GRADE, AND PAY LEVEL OF HIS POSITION, OR ANY OF THEM, AS THE CASE MAY BE. SUCH REQUESTS FOR REVIEW AND REVISION OR ADJUSTMENT SHALL BE SUBMITTED AND ADJUDICATED IN ACCORDANCE WITH THE REGULARLY ESTABLISHED PROCEDURES OF THE EMPLOYING DEPARTMENT. IN THE EVENT OF ADVERSE DECISION BY THE EMPLOYING DEPARTMENT, THE EMPLOYEE SHALL HAVE THE RIGHT TO APPEAL, IN WRITING, TO THE CANAL ZONE BOARD OF APPEALS."

INASMUCH AS THE EMPLOYING DEPARTMENT HAS BEEN CHARGED WITH THE RESPONSIBILITY OF ESTABLISHING EMPLOYEES' BASIC COMPENSATION AND DETERMINING MATTERS RELATING TO POSITION CLASSIFICATION IN THE FIRST INSTANCE, AND ADJUDICATING EMPLOYEE GRIEVANCES AND APPEALS OF SUCH ISSUES, WE BELIEVE THE SETTLEMENT SHOULD NOT HAVE BEEN MADE UNTIL A RECOMMENDATION OR A DETERMINATION OF THE AGENCY WAS OBTAINED REGARDING THE ISSUES RAISED BY THE CLAIMANTS. ACCORDINGLY, WE ARE HEREBY VACATING THE SETTLEMENT CERTIFICATE OF FEBRUARY 26, 1973, AND REFERRING THE CLAIM TO THE CANAL ZONE GOVERNMENT FOR ITS DETERMINATION. IF THE CANAL ZONE GOVERNMENT SHOULD DETERMINE THAT THE CLAIMANTS HAVE UNDERGONE AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION WITH RESPECT TO THE ISSUES RAISED IN THEIR CLAIM, THE CLAIMANTS COULD BE RETROACTIVELY COMPENSATED UNDER PROVISIONS OF THE BACK PAY ACT OF 1966, 5 U.S.C. SEC. 5596 (1970). SHOULD THE CLAIMANTS BE DISSATISFIED WITH THE DECISION OF THE AGENCY, THEY MAY REQUEST THE CANAL ZONE GOVERNMENT TO SUBMIT THEIR CLAIM TO THIS OFFICE FOR REVIEW.