B-170182, JUL 24, 1970, 50 COMP GEN 66

B-170182, JUL 24, 1970, 50 COMP GEN 66

DISTRICT OF COLUMBIA - EMPLOYEES - WAGE BOARD - ENVIRONMENTAL PAY DIFFERENTIAL STATUS THE ENVIRONMENTAL PAY DIFFERENTIAL FOR DIRTY WORK HAVING BEEN AUTHORIZED FOR DISTRICT OF COLUMBIA WAGE EMPLOYEES BY THE PROPER WAGE FIXING AUTHORITY IN ACCORDANCE WITH 5 U.S.C. 5341, AND IN CONFORMITY WITH COMMERCIAL PRACTICES, THE DIFFERENTIAL MAY BE CONSIDERED BASIC PAY, WHETHER STATED SEPARATELY OR INCLUDED IN SCHEDULED RATES, FOR THE PURPOSES OF COMPUTING THE WAGE BOARD OVERTIME AND SUNDAY RATES PRESCRIBED IN 5 U.S.C. 5544, THE CIVIL SERVICE RETIREMENT DEDUCTIONS AUTHORIZED IN 5 U.S.C. 8334, AND FOR DETERMINING THE ANNUAL RATE OF PAY FOR THE GROUP LIFE INSURANCE PROVIDED IN FEDERAL PERSONNEL MANUAL, SUPPLEMENT 870-1, SUBCHAPTER 83-3A, AND THE DIFFERENTIAL MAY BE PAID TO EMPLOYEES WHILE IN A LEAVE STATUS.

TO THE COMMISSIONER OF THE DISTRICT OF COLUMBIA, JULY 24, 1970:

THIS IS IN REFERENCE TO LETTER OF JUNE 26, 1970, AND ENCLOSURES, FROM MR. O. F. MALTAGLIATI, ASSOCIATE DIRECTOR FOR DISTRICT ACCOUNTING, DEPARTMENT OF FINANCE AND REVENUE, REQUESTING A DECISION ON SEVERAL QUESTIONS CONCERNING ENVIRONMENTAL PAY FOR DIRTY WORK.

IT IS STATED IN THE LETTER THAT ON MAY 27, 1970 COMMISSIONER'S ORDER NO. 70-192 WAS ISSUED WHICH INCREASED THE SCHEDULED RATES OF PAY FOR DISTRICT OF COLUMBIA WAGE EMPLOYEES AND AUTHORIZED THE PERSONNEL OFFICER, D.C., TO ESTABLISH, EFFECTIVE THE PAY PERIOD WHICH BEGINS ON OR AFTER MAY 31, 1970, AN ENVIRONMENTAL PAY DIFFERENTIAL FOR DIRTY WORK. PURSUANT TO THIS AUTHORITY THE PERSONNEL OFFICER ISSUED TRANSMITTAL SHEET NO. 174, APPROVED JUNE 8, 1970, WHICH ESTABLISHED THE POLICIES FOR THE ADMINISTRATION OF AN ENVIRONMENTAL PAY DIFFERENTIAL FOR DIRTY WORK, AND ON JUNE 12, 1970, ISSUED PERSONNEL BULLETIN NO. 297 PS AND LR THAT ESTABLISHED THE HOURLY RATE OF 17 CENTS AND THE JOBS FOR WHICH THE ENVIRONMENTAL PAY FOR DIRTY WORK IS AUTHORIZED. IT IS STATED THAT NOW THE COMMISSIONER IS CONTEMPLATING THE ISSUANCE OF AN ORDER THAT FOR PAY PURPOSES WOULD CONSIDER THE ENVIRONMENTAL PAY DIFFERENTIAL TO BE PART OF THE EMPLOYEE'S RATE OF BASIC PAY. IT WOULD THEN BE USED TO COMPUTE OVERTIME, HOLIDAY, AND SUNDAY PREMIUM PAY, RETIREMENT DEDUCTIONS AND GROUP LIFE INSURANCE DEDUCTIONS, AND WOULD BE PAID WHILE AN EMPLOYEE IS IN A LEAVE STATUS.

OUR DECISION IS REQUESTED ON THE FOLLOWING QUESTIONS:

QUESTION 1: MAY THE SEPARATELY STATED ENVIRONMENTAL PAY DIFFERENTIAL BE CONSIDERED AS BASIC PAY FOR THE PURPOSES OF COMPUTING WAGE BOARD OVERTIME AND SUNDAY RATES IN SECTION 5544, TITLE 5, U.S. CODE?

QUESTION 2: MAY THE SEPARATELY STATED ENVIRONMENTAL PAY DIFFERENTIAL BE CONSIDERED AS BASIC PAY FOR THE COMPUTATION OF CIVIL SERVICE RETIREMENT DEDUCTIONS IN SECTION 8334, TITLE 5, U.S. CODE?

QUESTION 3:MAY THE SEPARATELY STATED ENVIRONMENTAL PAY DIFFERENTIAL BE CONSIDERED AS BASIC PAY FOR THE PURPOSES OF DETERMINING AN ANNUAL RATE OF PAY FOR GROUP LIFE INSURANCE PURPOSES IN THE FEDERAL PERSONNEL MANUAL, SUPPLEMENT 870-1, SUBCHAPTER S3-3A.

QUESTION 4: MAY THE SEPARATELY STATED ENVIRONMENTAL PAY DIFFERENTIAL BE PAID TO A WAGE BOARD EMPLOYEE WHILE HE IS IN A LEAVE STATUS?

QUESTION 5: IF QUESTIONS 1, 2, 3, AND 4 ARE ANSWERED IN THE NEGATIVE, THEN COULD A WAGE SCHEDULE BE ISSUED WITH THE SCHEDULED RATES OF HOURLY PAY INCREASED BY THE AMOUNT OF THE ENVIRONMENTAL PAY DIFFERENTIAL AND WOULD THESE SCHEDULED RATES THEN BE CONSIDERED BASIC PAY IN QUESTIONS 1, 2, 3, AND 4?

QUESTION 6: IF QUESTION 5 IS ANSWERED IN THE AFFIRMATIVE THEN COULD THE NEW SCHEDULED RATES OF PAY BE EFFECTIVE RETROACTIVELY TO THE PAY PERIOD WHICH BEGINS ON OR AFTER MAY 31, 1970.

THE METHOD OF SETTING THE PAY OF EMPLOYEES IN RECOGNIZED TRADES OR CRAFTS, OR OTHER SKILLED MECHANICAL CRAFTS, OR IN UNSKILLED, SEMI SKILLED, OR SKILLED MANUAL-LABOR OCCUPATIONS IS PROVIDED IN 5 U.S.C. 5341, AS FOLLOWS:

(A) THE PAY OF EMPLOYEES EXCEPTED FROM CHAPTER 51 OF THIS TITLE BY SECTION 5102(C)(7) OF THIS TITLE SHALL BE FIXED AND ADJUSTED FROM TIME TO TIME AS NEARLY AS IS CONSISTENT WITH THE PUBLIC INTEREST IN ACCORDANCE WITH PREVAILING RATES. SUBJECT TO SECTION 213(F) OF TITLE 29, THE RATES MAY NOT BE LESS THAN THE APPROPRIATE RATES PROVIDED FOR BY SECTION 206(A)(1) OF TITLE 29.

IN B-53383, NOVEMBER 29, 1945, WE POINTED OUT THAT A WAGE FIXING AUTHORITY IN THE EXERCISE OF ITS NORMAL FUNCTION MAY AUTHORIZE NIGHT DIFFERENTIAL OR OTHER ELEMENTS OF A WAGE PROGRAM - NOT OTHERWISE IN CONTRAVENTION OF LAW OR ESTABLISHED RULE APPLICABLE TO FEDERAL EMPLOYEES - TO CONFORM WITH COMMERCIAL PRACTICES GENERALLY WITHOUT OBTAINING SPECIAL AUTHORIZATION THEREFOR. AS TO WHETHER DIFFERENTIALS ARE BASIC COMPENSATION, WE HAVE RULED THAT THE NIGHT RATE OF COMPENSATION OF AN EMPLOYEE OCCUPYING A PREVALING RATE OR WAGE BOARD POSITION IS BASIC COMPENSATION (23 COMP. GEN. 962 (1944); 24 ID. 39 (1944), AND 34 ID. 708 (1955)). ALSO, THAT NIGHT DIFFERENTIAL, POST DIFFERENTIAL, AND COST-OF- LIVING ALLOWANCES WHICH ARE SAVED BY CIVIL SERVICE REGULATIONS OR BY ADMINISTRATIVE ACTION TO EMPLOYEES WHOSE POSITIONS ARE CONVERTED FROM CLASSIFIED TO WAGE BOARD SCHEDULE ARE REGARDED AS "BASIC COMPENSATION." 36 COMP. GEN. 482. WE FIND NO BASIS TO REACH A CONTRARY DECISION WITH RESPECT TO AN ENVIRONMENTAL DIFFERENTIAL FOR DIRTY WORK, WHETHER STATED SEPARATELY OR INCLUDED IN THE SCHEDULED RATES. ACCORDINGLY, QUESTIONS 1 THROUGH 4 ARE ANSWERED IN THE AFFIRMATIVE, AND NO ANSWER IS REQUIRED FOR QUESTIONS 5 AND 6.