B-176051, JUL 14, 1972

B-176051, JUL 14, 1972

CIVILIAN EMPLOYEES - ENVIRONMENTAL PAY PROVISIONS - CONVERSION TO NEW SYSTEM DECISION THAT CERTAIN EMPLOYEES OF THE NAVAL ORDNANCE LABORATORY ARE DUE ENVIRONMENTAL DIFFERENTIAL PAY, AS AUTHORIZED BY DEPARTMENT OF THE NAVY REGULATIONS, FOR THE PERIOD FROM NOVEMBER 1, 1970, WHEN THE COORDINATED FEDERAL WAGE SYSTEM (CFWS) WENT INTO EFFECT, UNTIL SUCH TIME AS THEIR JOBS WERE DOWNGRADED TO CONFORM WITH CFWS REQUIREMENTS. SINCE SECTION S8-7C OF FPM SUPPLEMENT 532-1 PROVIDES THAT EXPOSURE TO A PARTICULAR HAZARD OR WORKING CONDITION SHOULD NOT BE CONSIDERED IN THE JOB -GRADING PROCESS, IT MUST BE CONCLUDED THAT NONE OF THAT SECTION WOULD BE APPLICABLE TO THESE EMPLOYEES UNTIL THE SECTION WAS IMPLEMENTED BY APPROPRIATE AGENCY ACTION. CONSEQUENTLY, THE PRIOR ENVIRONMENTAL PAY SHOULD HAVE BEEN CONTINUED UNTIL THE AGENCY ACTION WAS COMPLETED.

TO MR. SECRETARY:

BY LETTER OF MAY 24, 1972, REFERENCE 103:GVB:CRG, THE COMMANDER OF THE NAVAL ORDNANCE LABORATORY (NOL) REQUESTED OUR DECISION WITH RESPECT TO THE CLAIMS OF CERTAIN NOL EMPLOYEES FOR ENVIRONMENTAL DIFFERENTIAL PAY ALLEGED TO BE DUE THEM AS EMPLOYEES OF THE DEPARTMENT OF THE NAVY. THE CLAIM OF ONE OF THESE EMPLOYEES, DAVID H. NITOWITZ, HAD BEEN SUBMITTED TO THE GENERAL ACCOUNTING OFFICE AND BY CERTIFICATE OF SETTLEMENT DATED APRIL 5, 1972, OUR TRANSPORTATION AND CLAIMS DIVISION ALLOWED THE CLAIM. BECAUSE A CLAIM SETTLEMENT MAY NOT BE USED AS A PRECEDENT, WE HAVE BEEN ASKED TO REVIEW MR. NITOWITZ' CLAIM AS REPRESENTATIVE OF CLAIMS OF OTHER NOL EMPLOYEES SIMILARLY SITUATED.

MR. NITOWITZ' CLAIM RESULTS FROM THE IMPLEMENTATION OF THE ENVIRONMENTAL PAY PLAN OF THE COORDINATED FEDERAL WAGE SYSTEM (CFWS). SEE SUBCHAPTER S8 -7, FEDERAL PERSONNEL MANUAL (FPM) SUPPLEMENT 532-1. THIS ENVIRONMENTAL PAY PLAN PROVIDES FOR A SEPARATE ENVIRONMENTAL PAY DIFFERENTIAL TO BE PAID FOR EXPOSURE TO CERTAIN DEFINED HAZARDS, PHYSICAL HARDSHIPS, AND UNUSUAL WORKING CONDITIONS. THE CFWS ENVIRONMENTAL PAY PLAN WENT INTO EFFECT ON NOVEMBER 1, 1970. THE ENVIRONMENTAL PAY SYSTEM IN EFFECT IN THE NAVY PRIOR TO THAT DATE DIFFERED SUBSTANTIALLY FROM THE CFWS SYSTEM; CONSEQUENTLY, IMPLEMENTATION OF THE CFWS PLAN BY THE NAVY REQUIRED MAJOR ADJUSTMENTS.

UNDER THE PREVIOUSLY EXISTING NAVY SYSTEM, PAYMENT FOR HAZARDS WHICH WERE RELATIVELY CONSTANT AND INHERENT IN THE OCCUPATION WAS INCORPORATED INTO THE GRADE STRUCTURE. THIS "BUILT-IN" COMPENSATION RESULTED IN HIGHER GRADES FOR HAZARDOUS JOBS. UNDER THE CFWS PLAN, THE NAVY WAS REQUIRED TO LOWER THE GRADE OF JOBS WITH THIS "BUILT-IN" COMPENSATION AND INSTEAD TO PAY FOR THE HAZARD SEPARATELY BY ADDING A DIFFERENTIAL TO THE REGULAR PAY RATE AT THE LOWER GRADE. IN ADDITION TO THE "BUILT-IN" COMPENSATION PROVIDED THROUGH THE INCREASED GRADE, THE NAVY ALSO PAID A SEPARATE DIFFERENTIAL FOR EXPOSURE TO SPECIAL HAZARDS WHICH ALSO HAD TO BE PHASED OUT AND REPLACED WITH THE SINGLE DIFFERENTIAL OF THE CFWS PLAN.

UNDER THE NAVY SYSTEM, MR. NITOWITZ RECEIVED A "BUILT-IN" DIFFERENTIAL OF ONE GRADE FOR AN EXPLOSIVES HAZARD RESULTING IN AN HOURLY RATE OF $6.08, UP TO NOVEMBER 1, 1970. IN ADDITION, HE RECEIVED A DIFFERENTIAL OF $0.16 PER HOUR UNDER THE NAVY SYSTEM BECAUSE HE WAS ASSIGNED TO HANDLE OR WORK WITH TNT OR TETRYL. CONSEQUENTLY, UP TO NOVEMBER 1, 1970, MR. NITOWITZ RECEIVED A TOTAL OF $499.20 PER PAY PERIOD. IT WAS NOT POSSIBLE TO EFFECT THE DOWNGRADING OF MR. NITOWITZ' POSITION BY THE TIME THE CFWS ENVIRONMENTAL PAY SYSTEM WENT INTO EFFECT ON NOVEMBER 1, 1970. THE DOWNGRADING ACTION WAS EFFECTED DECEMBER 13, 1970. ALTHOUGH SUBSEQUENT TO DECEMBER 13, 1970, MR. NITOWITZ WAS PAID AT A RATE OF $499.20 PER PAY PERIOD, FOR THE PERIOD OF TIME FROM NOVEMBER 1, 1970, THROUGH DECEMBER 13, 1970, HE WAS PAID AT A RATE OF $486.40 PER PAY PERIOD. THIS REDUCTION IN PAY RESULTED FROM AN AGENCY DETERMINATION THAT THE EMPLOYEE COULD NOT RECEIVE THE SEPARATE $0.16 PER HOUR DIFFERENTIAL BECAUSE THE PAY SAVING PROVISIONS OF THE CFWS ENVIRONMENTAL PAY PLAN DID NOT TAKE EFFECT UNTIL THE NECESSARY DOWNGRADING HAD BEEN EFFECTED AND ALSO BECAUSE THE EMPLOYEE COULD NOT RECEIVE BOTH THE "BUILT-IN" GRADE DIFFERENTIAL AND THE SEPARATE DIFFERENTIAL PAY OF $0.16 PER HOUR IN VIEW OF THE PROVISION IN THE CIVIL SERVICE COMMISSION INSTRUCTIONS REGARDING THE NEW SYSTEM WHICH PROHIBITED THE EMPLOYEE FROM RECEIVING MORE THAN ONE DIFFERENTIAL. SEE FPM SUPPLEMENT 532-1, SECTION S8-7C.

SUBCHAPTER S8-7 OF FPM SUPPLEMENT 532-1 MAKES NO PROVISION FOR THE SITUATION WHICH EXISTED IN THIS CASE. HOWEVER, IN VIEW OF SECTION S8 7C, FPM SUPPLEMENT 532-1, WHICH PROVIDES IN PERTINENT PART -

"*** EXPOSURE TO A HAZARD, PHYSICAL HARDSHIP, OR WORKING CONDITION LISTED IN APPENDIX J IS NOT TAKEN INTO CONSIDERATION IN THE JOB-GRADING PROCESS, AND ADDITIONAL PAY FOR EXPOSURE TO THESE CONDITIONS IS PROVIDED ONLY THROUGH THE ENVIRONMENTAL DIFFERENTIALS AUTHORIZED BY THIS SECTION. ***"

WE CONCLUDE THAT NONE OF SUBCHAPTER S8-7 WAS FOR APPLICATION TO AN EMPLOYEE PREVIOUSLY RECEIVING THE "BUILT-IN" DIFFERENTIAL UNDER THE NAVY SYSTEM UNTIL HIS POSITION HAD BEEN APPROPRIATELY DOWNGRADED. CONSEQUENTLY, UNTIL SUCH ACTION WAS COMPLETED, HE SHOULD HAVE CONTINUED TO BE PAID IN ACCORDANCE WITH THE NAVY ENVIRONMENTAL PAY SYSTEM. THEREFORE, WE FIND THAT MR. NITOWITZ AND OTHER NOL EMPLOYEES SIMILIARLY SITUATED WERE ENTITLED TO THE SEPARATE DIFFERENTIAL DURING THE PERIOD OF TIME FROM NOVEMBER 1, 1970, THROUGH DECEMBER 13, 1970. THIS CONCLUSION IS SUPPORTED BY THE FACT THAT IF NOL HAD COMPLETED THE DOWNGRADING ACTIONS IN A TIMELY MANNER PRIOR TO NOVEMBER 1, 1970, THE EMPLOYEES IN QUESTION WOULD HAVE RECEIVED THE SAME AMOUNTS AS THEY ARE ENTITLED TO UNDER THIS DECISION.

IN VIEW OF THE FOREGOING, THE SETTLEMENT OF OUR TRANSPORTATION AND CLAIMS DIVISION IN FAVOR OF THE CLAIMANT IS AFFIRMED. SIMILAR CASES MAY BE ADMINISTRATIVELY SETTLED IN ACCORDANCE WITH THIS DECISION.