B-180109, APR 24, 1974, 53 COMP GEN 789

B-180109, APR 24, 1974, 53 COMP GEN 789

COMPENSATION - WAGE BOARD EMPLOYEES - COORDINATED FEDERAL WAGE SYSTEM - ENVIRONMENTAL DIFFERENTIAL VETERANS ADMINISTRATION (VA) EMPLOYEE CLAIMED ENVIRONMENTAL DIFFERENTIAL UNDER FPM SUPPLEMENT 532-1, S8-7 AND APPENDIX J, FOR COLD WORK. FACT THAT VA FURNISHED PROTECTIVE CLOTHING FOR WORK IN THE COLD STORAGE AREA DOES NOT DEFEAT ENTITLEMENT SINCE EMPLOYEE PERFORMED WORK WHICH APPENDIX J LISTS AS QUALIFYING FOR THE DIFFERENTIAL AND NO PROVISION IS MADE FOR ALLEVIATING DISCOMFORT. WHERE VA DOES NOT HAVE PAST RECORDS OF ACTUAL PERIODS OF EXPOSURE, WHICH NORMALLY CONSTITUTE BASIS FOR PAYMENT OF COLD WORK DIFFERENTIAL, PAYMENT MAY BE BASED ON MOST REASONABLE ESTIMATE AFTER CONSIDERATION OF ALL AVAILABLE RECORDS.

IN THE MATTER OF PREVAILING RATE EMPLOYEES' ENVIRONMENTAL DIFFERENTIAL, APRIL 24, 1974:

THE CONTROLLER OF THE VETERANS ADMINISTRATION (VA), BY HIS LETTER DATED OCTOBER 9, 1973, REQUESTS RECONSIDERATION OF THE DETERMINATION BY OUR TRANSPORTATION AND CLAIMS DIVISION THAT MR. JAMES H. LEE, A FOOD SERVICE WORKER EMPLOYED BY THE VA, IS ENTITLED TO PAYMENT OF AN ENVIRONMENTAL DIFFERENTIAL OF 4 PERCENT FOR COLD WORK UNDER APPENDIX J OF FEDERAL PERSONNEL MANUAL (FPM) SUPPLEMENT 532-1. IN ADDITION THE CONTROLLER EXPLAINS THAT WHILE ENVIRONMENTAL DIFFERENTIAL PAY FOR "COLD WORK" IS BASED ON ACTUAL EXPOSURE, RECORDS DO NOT REFLECT SPECIFIC DATES AND TIMES THAT MR. LEE PERFORMED DUTY IN A COLD STORAGE AREA. HE THEREFORE REQUESTS TO BE FURNISHED GENERAL GUIDELINES FOR USE IN DETERMINING THE AMOUNT OF COMPENSATION DUE MR. LEE IN THE EVENT THAT UPON RECONSIDERATION OUR TRANSPORTATION AND CLAIMS DIVISION'S DETERMINATION IS UPHELD.

IN REGARD TO HIS REQUEST FOR RECONSIDERATION OF THE DETERMINATION THAT MR. LEE IS ENTITLED TO PAYMENT OF AN ENVIRONMENTAL DIFFERENTIAL, THE CONTROLLER STATES THAT THE CLAIMANT'S EMPLOYING STATION'S ACTION COMPLIED FULLY WITH THE INTENT AND OBJECTIVES OF PARAGRAPHS S8-7A AND D OF FPM SUPPLEMENT 532-1 AND THAT PAYMENT OF MR. LEE'S CLAIM WOULD REQUIRE SOME CHANGE OR MODIFICATION TO THE LANGUAGE OF THESE PARAGRAPHS. THE REGULATIONS IN EFFECT DURING THE PERIOD OF MR. LEE'S CLAIM PROVIDED:

A. OBJECTIVE. EACH AGENCY SHOULD HAVE AS ITS OBJECTIVE THE ELIMINATION OR REDUCTION TO THE LOWEST LEVEL POSSIBLE OF ALL HAZARDS, PHYSICAL HARDSHIPS, AND WORKING CONDITIONS OF AN UNUSUALLY SEVERE NATURE. WHEN THE AGENCY ACTION DOES NOT OVERCOME THE UNUSUALLY SEVERE NATURE OF THE HAZARD, PHYSICAL HARDSHIP, OR WORKING CONDITION, AN ENVIRONMENTAL DIFFERENTIAL IS WARRANTED. EVEN THOUGH AN ENVIRONMENTAL DIFFERENTIAL IS AUTHORIZED, THERE IS AN AGENCY RESPONSIBILITY TO INITIATE CONTINUING POSITIVE ACTION TO ELIMINATE DANGER AND RISK WHICH CONTRIBUTE OR CAUSE THE HAZARD, PHYSICAL HARDSHIP, OR WORKING CONDITION OF AN UNUSUALLY SEVERE NATURE. THE EXISTENCE OF ENVIRONMENTAL DIFFERENTIALS IS NOT INTENDED TO CONDONE WORK PRACTICES WHICH CIRCUMVENT FEDERAL SAFETY LAWS, RULES, AND REGULATIONS.

D. AUTHORIZATION FOR PAY FOR ENVIRONMENTAL DIFFERENTIAL. (1) PAY IS AUTHORIZED FOR EXPOSURE TO AN UNUSUALLY SEVERE HAZARD WHICH COULD RESULT IN SIGNIFICANT INJURY, ILLNESS, OR DEATH, SUCH AS ON A HIGH STRUCTURE WHEN THE HAZARD IS NOT PRACTICALLY ELIMINATED BY PROTECTIVE FACILITIES OR ON AN OPEN STRUCTURE WHEN ADVERSE CONDITIONS SUCH AS DARKNESS, LIGHTNING, STEADY RAIN, SNOW, SLEET, ICE, OR HIGH WIND VELOCITY EXISTS.

(2) PAY IS AUTHORIZED FOR EXPOSURE TO AN UNUSUALLY SEVERE PHYSICAL HARDSHIP UNDER CIRCUMSTANCES WHICH CAUSE SIGNIFICANT PHYSICAL DISCOMFORT OR DISTRESS NOT PRACTICALLY ELIMINATED BY PROTECTIVE DEVICES.

(3) PAY IS AUTHORIZED FOR EXPOSURE TO AN UNUSUALLY SEVERE WORKING CONDITION UNDER CIRCUMSTANCES INVOLVING EXPOSURE TO FUMES, DUST, OR NOISE WHICH CAUSE SIGNIFICANT DISTRESS OR DISCOMFORT IN THE FORM OF NAUSEA, OR SKIN, EYE, EAR, OR NOSE IRRITATION OR CONDITIONS WHICH CAUSE ABNORMAL SOIL OF BODY AND CLOTHING, ETC., AND WHERE THE DISTRESS OR DISCOMFORT IS NOT PRACTICALLY ELIMINATED.

THE CONTROLLER, IN PREVIOUS CORRESPONDENCE DATED DECEMBER 1, 1972, EXPLAINED THE VA'S BASIS FOR ADMINISTRATIVE DENIAL OF MR. LEE'S CLAIM AS FOLLOWS:

*** AS OUTLINED IN SECTIONS S8-7A AND D OF FPM SUPPLEMENT 532-1, THE BASIC OBJECTIVE FOR EMPLOYEE SAFETY IS TO ELIMINATE, OR REDUCE TO THE MAXIMUM EXTENT POSSIBLE, ALL HAZARDS; WHEN THE HAZARD IS NOT PRACTICALLY ELIMINATED OR OVERCOME, THE ENVIRONMENTAL DIFFERENTIAL IS PAYABLE. WITH RESPECT TO COLD WORK, PROTECTIVE CLOTHING IS PROVIDED VA EMPLOYEES UPON ENTERING COLD STORAGE ROOMS, AND THEY ARE NOT USUALLY REQUIRED TO BE SO CONTINUOUSLY EXPOSED TO THE COLD AS TO EXCEED THE PROTECTIVE LIMITS OF THE CLOTHING. ALTHOUGH PROLONGED EXPOSURE IN COLD STORAGE ROOMS COULD BE A BASIS FOR THE 4% DIFFERENTIAL FOR COLD WORK, THERE IS NOTHING IN THE CLAIM FILE TO INDICATE SUCH PROLONGED EXPOSURE. ***

ESSENTIALLY THE VA'S POSITION IS THAT THE MERE LISTING OF WORK IN COLD STORAGE AREAS AT TEMPERATURES BELOW FREEZING IN APPENDIX J AS A CATEGORY OF WORK FOR WHICH A 4 PERCENT DIFFERENTIAL IS PAYABLE IS NOT CONCLUSIVE AS TO ENTITLEMENT WHERE THE PHYSICAL DISTRESS OR DISCOMFORT INVOLVED IS PRACTICALLY ELIMINATED BY PROTECTIVE CLOTHING FURNISHED BY THE VA.

THE ISSUE HERE INVOLVED IS NOT WHETHER THE PROTECTIVE CLOTHING PROVIDED BY THE VA IN FACT AMELIORATED THE DISCOMFORT INVOLVED IN WORKING IN A COLD STORAGE AREA - AN ISSUE AS TO WHICH THE VA'S AND CLAIMANT'S POSITIONS ARE AT ODDS. RATHER, THE ISSUE IS THE PURELY LEGAL ONE OF WHETHER, UNDER APPLICABLE REGULATIONS IN SUBCHAPTER S8-7 AND APPENDIX J OF FPM SUPPLEMENT 532-1, THE 4 PERCENT ENVIRONMENTAL DIFFERENTIAL FOR WORK IN COLD STORAGE AREAS IS PAYABLE NOTWITHSTANDING THAT THE DISCOMFORT IS TO AN EXTENT ELIMINATED BY THE FURNISHING OF PROTECTIVE CLOTHING. IN THIS REGARD THE ABOVE-QUOTED PARAGRAPHS, AS WELL AS THE FOLLOWING FROM SUBCHAPTER S8-7, ARE FOR CONSIDERATION:

E. ESTABLISHMENT OF ENVIRONMENTAL DIFFERENTIALS. (1) APPENDIX J IS A SCHEDULE OF ENVIRONMENTAL PAY DIFFERENTIALS WHICH DEFINES METHODS OF PAYMENT AND VARIOUS DEGREES OF HAZARDS, PHYSICAL HARDSHIPS, AND WORKING CONDITIONS, EACH OF AN UNUSUALLY SEVERE NATURE, FOR WHICH THE DIFFERENTIALS ARE PAYABLE. THE AMOUNT OF THE DIFFERENTIALS ARE LISTED IN APPENDIX J. ENVIRONMENTAL DIFFERENTIALS ARE AUTHORIZED ONLY WHEN THE EXPOSURE IS UNDER THE CIRCUMSTANCES DESCRIBED IN THE CATEGORY LISTED IN APPENDIX J, EXCEPT AS PROVIDED IN PARAGRAPH I. ***

(2) ENVIRONMENTAL DIFFERENTIALS ARE STATED AS PERCENTAGE AMOUNTS AND ARE AUTHORIZED FOR THE CATEGORIES OF EXPOSURES AS DESCRIBED IN APPENDIX J. ***

F. WHEN ENVIRONMENTAL DIFFERENTIAL IS PAID. (1) AN AGENCY SHALL PAY THE ENVIRONMENTAL DIFFERENTIAL IN APPENDIX J TO A WAGE EMPLOYEE PAID UNDER A FEDERAL WAGE SYSTEM WAGE SCHEDULE WHEN THE EMPLOYEE IS PERFORMING ASSIGNED DUTIES WHICH EXPOSE HIM TO AN UNUSUALLY SEVERE HAZARD, PHYSICAL HARDSHIP, OR WORKING CONDITION LISTED IN APPENDIX J, ON OR AFTER THE EFFECTIVE DATE SPECIFIED.

G. DETERMINING LOCAL SITUATIONS WHEN ENVIRONMENTAL DIFFERENTIALS ARE PAYABLE. (1) APPENDIX J DEFINES THE CATEGORIES OF EXPOSURE FOR WHICH THE HAZARD, PHYSICAL HARDSHIPS, OR WORKING CONDITIONS ARE OF SUCH AN UNUSUAL NATURE AS TO WARRANT ENVIRONMENTAL DIFFERENTIALS, AND GIVES EXAMPLES OF SITUATIONS WHICH ARE ILLUSTRATIVE OF THE NATURE AND DEGREE OF THE PARTICULAR HAZARD, PHYSICAL HARDSHIP, OR WORKING CONDITION INVOLVED IN PERFORMING THE CATEGORY. THE EXAMPLES OF THE SITUATIONS ARE NOT ALL INCLUSIVE BUT ARE INTENDED TO BE ILLUSTRATIVE ONLY.

(2) EACH INSTALLATION OR ACTIVITY MUST EVALUATE ITS SITUATIONS AGAINST THE GUIDELINES IN APPENDIX J TO DETERMINE WHETHER THE LOCAL SITUATION IS COVERED BY ONE OR MORE OF THE DEFINED CATEGORIES.

(A) WHEN THE LOCAL SITUATION IS DETERMINED TO BE COVERED BY ONE OR MORE OF THE DEFINED CATEGORIES (EVEN THOUGH NOT COVERED BY A SPECIFIC ILLUSTRATIVE EXAMPLE), THE AUTHORIZED ENVIRONMENTAL DIFFERENTIAL IS PAID FOR THE APPROPRIATE CATEGORY.

APPENDIX J, PART 1, AT PARAGRAPH 5 PROVIDES:

5. COLD WORK. WORKING IN COLD STORAGE OR OTHER CLIMATE-CONTROLLED AREAS WHERE THE EMPLOYEE IS SUBJECTED TO TEMPERATURES AT OR BELOW FREEZING (32 DEGREES FAHRENHEIT).

PARAGRAPHS A AND D RELIED UPON BY THE VA ARE GENERAL STATEMENTS. PARAGRAPHS E, F AND G EXPLAIN ESSENTIALLY THAT INCLUSION OF A CATEGORY OF WORK, UNDER THE CONDITIONS FOR THAT CATEGORY IN APPENDIX J, AMOUNTS TO A DETERMINATION THAT SUCH WORK MEETS THE GENERAL CRITERIA AND OBJECTIVES FOR PAYMENT OF AN ENVIRONMENTAL DIFFERENTIAL SET FORTH AT PARAGRAPHS A AND D.

PAYMENT OF THE DIFFERENTIAL FOR CERTAIN CATEGORIES OF WORK INCLUDED AT APPENDIX J IS CONDITIONED UPON THE DISCOMFORT, CONDITION OR HAZARD NOT BEING TO SOME EXTENT ALLEVIATED. WE REFER IN THIS REGARD TO THE FOLLOWING CATEGORIES OF WORK LISTED AT PART I OF APPENDIX J: HIGH WORK AT LESSER HEIGHTS, DIRTY WORK, AND WORK INVOLVING WELDING OF PREHEATED METALS. PART II OF APPENDIX J, PAYMENT OF A DIFFERENTIAL FOR THE FOLLOWING CATEGORIES OF WORK IS SIMILARLY CONDITIONED: WORK WITH EXPLOSIVES AND INCENDIARY MATERIALS INVOLVING A LOW DEGREE OF HAZARD, WORK WITH POISONS INVOLVING A LOW DEGREE OF HAZARD, AND WORK WITH MICRO ORGANISMS INVOLVING A LOW DEGREE OF HAZARD.

TO ADOPT THE VA'S CONSTRUCTION OF THE REGULATION - THAT THE LANGUAGE OF PARAGRAPHS A AND D REGARDING ELIMINATION OF THE HAZARD, HARDSHIP OR SEVERE WORKING CONDITION INVOLVED IS A CONDITION TO PAYMENT TO BE IMPOSED IN ADDITION TO SUCH CONDITIONS AS MAY BE INCLUDED IN THE DEFINITION OF CATEGORIES OF WORK DEFINED AT APPENDIX J - IS TO RENDER REDUNDANT THE LANGUAGE AS IS USED IN DEFINING THE CATEGORIES LISTED AT APPENDIX J. THERE IS A STRONG PRESUMPTION AGAINST CONSTRUCTION OF STATUTE OR REGULATION WHICH RENDERS ANY LANGUAGE THEREOF REDUNDANT AND WE ARE OFFERED AND FIND NO COMPELLING REASON TO ADOPT SUCH A CONSTRUCTION IN THIS CASE.

WORK IN A COLD STORAGE AREA, SUCH AS MR. LEE PERFORMED, QUALIFIES FOR PAYMENT OF THE 4 PERCENT DIFFERENTIAL INSOFAR AS THE EMPLOYEE IS SUBJECTED TO TEMPERATURES AT OR BELOW FREEZING. ON THE RECORD, WE FIND NO DISPUTE OF FACT AS TO WHETHER THE WORK MR. LEE PERFORMED WAS OF SUCH NATURE AND THUS AFFIRM THE FINDING OF OUR TRANSPORTATION AND CLAIMS DIVISION THAT MR. LEE IS ENTITLED TO PAYMENT OF THE DIFFERENTIAL.

THE 4 PERCENT ENVIRONMENTAL DIFFERENTIAL FOR COLD WORK IS PAYABLE ON AN ACTUAL EXPOSURE BASIS IN ACCORDANCE WITH SUBPARAGRAPH S8-7 OF FPM, SUPPLEMENT 532-1. IN REGARD TO THE BASIS FOR PAYMENT OF THE DIFFERENTIAL, THE CONTROLLER STATES:

AS YOU HAVE INDICATED, ENVIRONMENTAL DIFFERENTIAL PAY FOR "COLD WORK" IS BASED ON ACTUAL EXPOSURE AS OPPOSED TO HOURS IN A PAY STATUS. DURING THE COURSE OF A REGULARLY SCHEDULED EIGHT HOUR TOUR OF DUTY, MR. LEE MAY HAVE ENTERED THE COLD STORAGE AREA ON SEVERAL OCCASIONS INCLUDING, IN ALL LIKELIHOOD, TWO OR MORE TIMES WITHIN THE SAME ONE HOUR PERIOD OF TIME. THROUGH TELEPHONIC COMMUNICATION WITH THE STATION IT HAS BEEN LEARNED THAT RECORDS, WHICH WOULD DOCUMENT THE SPECIFIC DATES AND TIMES MR. LEE PERFORMED DUTY IN A COLD STORAGE AREA, DO NOT EXIST. THIS LACK OF INFORMATION IS THE RESULT OF THE STATION'S DETERMINATION THAT MR. LEE WAS NOT ELIGIBLE FOR ENVIRONMENTAL DIFFERENTIAL PAY. BASED ON THIS LACK OF DOCUMENTATION, WE REGRET THAT WE ARE UNABLE TO FURNISH THE REQUESTED PAY COMPUTATIONS. ACCORDINGLY, IT IS REQUESTED THAT WE BE FURNISHED GENERAL GUIDELINES WHICH MAY BE UTILIZED IN DEVELOPING THE AMOUNT OF RETROACTIVE COMPENSATION PAYABLE TO MR. LEE.

WE RECOGNIZE THAT DETERMINATION OF THE AMOUNT DUE POSES A DIFFICULT PROBLEM BECAUSE OF THE LACK OF RECORDS. HOWEVER, IN CASES WHERE IT IS KNOWN THAT OVER A PERIOD OF TIME EMPLOYEES HAVE PERFORMED DUTY FOR WHICH THEY ARE ENTITLED TO ADDITIONAL PAY AND DOUBT EXISTS ONLY AS TO THE PARTICULAR DAYS OR HOURS ON WHICH THE QUALIFYING WORK WAS PERFORMED, THIS OFFICE HAS APPROVED PAYMENT THEREFOR BASED UPON THE MOST REASONABLE ESTIMATE AFTER CONSIDERATION OF ALL AVAILABLE RECORDS. SEE 50 COMP. GEN. 767 (1971) AND B-170182, DECEMBER 26, 1973. IN THIS CONNECTION THE AGENCY WAS ADVISED IN JULY 1973 THAT MR. LEE WAS ENTITLED TO PAYMENT OF THE DIFFERENTIAL. SINCE THE DATE SUCH NOTICE WAS RECEIVED, WE ASSUME THAT RECORDS HAVE BEEN MAINTAINED SHOWING PERIODS WHEN MR. LEE PERFORMED WORK QUALIFYING FOR THE DIFFERENTIAL. SUCH RECORDS MAY BE USED IN PREPARING A REASONABLE ESTIMATE OF QUALIFYING WORK DURING THE PERIOD IN QUESTION.