a *~~~~~~~~Ma '. 1973 1.0463a01 The Boarableftbor Fe.oeI *_ er*fr osdrto aUtrfo teFoiet Loal25 DirectloraobCle .Foealk ep ia P~ert tetof th AC),dtdFeray6 m nSecretary I1th Armyhs lsln AsaIslmno tehzr Dea t.eCiiSeretary:sini prgah 87o VdrlPesne Inow hlavsesfo coasideraton ahleterfrthere reuresdent, peastr and1 theriocatin deat wi.hofGweirduinc weurenp Brorad 777,oyer, workngJrsy drctcerningth teehighlexplofiv crtain egetsoee of bflcInstimyde the Larsena troxadditional ret wrocie hoard dnitfercntihazarudeffrsetionSe * ... .OFeeraml Peerswona Herforal Supplemet521 s mfasmbigatte vs.in the sub-s jectwof aerepr (rieldfcreaste aPre"P toer our ofic foromc theeAsistan DirectorlofeCivilanyersonal, Derepartasat ofthe Aprmytdeted Iniruated6 Ongrievan er1 1970,apprethe undeatiheArcdrsenliplescrntedthe thazr dtfeArsental pratinothe lvlooraduintated Cia edeappWaleo ugs 3ysempra1ga7ed prtodughterjction liewiauidns 1090ct arbidra807 at the Arseusiter divied intloytwo co-aserbaedorteupnte obsthyerrequesenwiredg nto perform tand the lockatiolontwhich thira adutiestratiepert ared. Emplyee wqorkings adiectl Hwithr the highexplsivageodt CorStS@fthek bombsr inu sheldedrI arm2 including employees suc asbitrpetor Isue aoter aorequpiire o avrork ing cloe pihroximty thert o eeada prsthard differeatial.heempfVyo cnere affctivae reractiony apparenl udaer tawihe proeueresuesciedi thetabtrto appIcabe labor-mAna4;mtaiceLtITa reanewsreetdb th renla tefna eelo dtnurtieapelo Ags 3/91 ~~- 4 '1z J-163901 -/ * ~~~/t w w requested by the parties, namely February 1, 1972. Apparently, the Department of the Army has made payments to the employees coucerged In accordance therewith. A Th. local union questions the action taken In that regard to the extent that entitlement to the higher rate of hazard dtfferential was not oade retroactively effective to the date ouch differential was first authorized under the provisions of the Coordinated Federal Wage System, that U,& the first pay period beginning on or after iova ber 1, 1970. The entitlmeut of wage board employees to a hasard differential io a matter primarily for administrative determination by the agency involved ten, and the Civil Service Codnsion under the zegulations contained in TPH Supplement 532-1. Appendix J thereof provide. in pertinent part as follows 2. Etplosives and incandiar nat-rial-hi~h de. hasard. Working with or in close proximity to explosives and incendiary material which involves potential personal injury such as permanent or temporary, partial or com- plete lose of sight or hearint, partial or complete lose of any or all oxtremities; other partial or total dis- abilitses of equal severity; and/or loss of life result- ing from work situations wherein protective devices and/or safety measures either do uot exist or have Wan developed hut have not practically eliniusted the poten- tial fat such personal Injury. flormually, much work situatti'u would result in extensive property daager requiring conplete replacement of equipment and rebuild- Ing of the damaged are; and could result In personal injury to adjacent employees. * * A A * 3. Explosi.es and incendiary material-low-degreehazard.. Working with or In close proximity to explosives and Incendiary material which involves potential injury such as laceration of hands, face, or arms of the employee -2- 0.~~~~ . . Am163901 egogd to the operation and pos ble adjacnt employese lanoi lrritatioo of the &kln* alaor bur and the like;g minia damae to Iudiato or adjacent vorkc *r" or ; * equieot bein ud Thc primr question Involve is whther under the above regsultloos awubre bomobs were all of the *mployecs working In buildings 1090 ad 80 *aufa£cturMd and loaded war* eotitled to the 8 percent hlgh hasard dif- ferantial regardless of whoth r they work*4 dlrectly wlth the *xplosive charge or uhether they worked on assembly of nonexplosive parts and with - loadinge A socond question Is wbuther such highor compensations if par.- r able, would be retroactlvo to the flrst pay period bealuning on or after Novaimber 1, 1970. The arbltrator's award of tho higher rat* of differ- ential to those employtee who had beov paidd t the lower irate was baeod for the most part on his Itetrpretation of the regulatlons to the *ffset that an amloyes vorking on the loading *nd assably of the bombs could be killlod If one of the bombs on which he ves votklng: actident&llv detonated Just as easily as *n employ"Z wo was porforming operatlons on the bigh explosive coaponents of the bombs if a sivillar occidenti occurred. The Department of the Army interpretod the regu'.atlors In a different manner based an a reading of the total regulation including the examples. Given which ere not quoted &bowa.e One of the exempte gitve under low degree haaard As "all operations involving loadlag, unloadingp storage and handlin8 of explosives and incendiary ordnance material other than sml a1rm amauuotiong" *ad another s "'oadt a semhly, and packing of priners, fuses, propellent charges, lead cups, boosters, and time-train rigg& " On the other hand thc Illlw trations given of high risk work Include so far &: pertinent here opetations which 1Imvolve working diretctly with higb explosive charges* Thc Deoprtment believes that the that~~~~~~ a3 regulations taken as a whole hdid odn-alyewrigo n ubyo h cb ol not intond to authorlte the higher inendbly aileadeing of eployeve hazard differential rate woen the vic es voinvol;d littlt riok of tccidnntil dntontions Thus the Depart sent differentiates botwoan differout jobs on tho basis of the relatlve ick of accidentml detonation whereate th arbitrator'k award would not prmit such reqap ive rbin to be tken Into account allowing distd.ctions to be maTe only q ion ibaolvd of the seterity of probablovnjury fl tetonetion whould incuri Althou1h the r gulatio8Ibn questiow accideotal la not entiraly cloar wabelnited to thtte Depertentt's hitfrpfetatiof tfereotis not unardles ofab hnd that a low rksk hdarrd differtnth plosy be paid baAse upon thi fact whet hn certsiu operction ther saio loer r thk of detonationt tccldetaol * .. t l ~.4 A-163901 4~ qoe.r anasnl$glto hc ele s nldn arxmt al is, hwvet" , deem cot dispose of the witiesom prewetd because c ythe *rbitrator's avd w lso base od thetprox amity0 ot sqoe s worlvn on assembly aud loading to th nscogintd high risk are i Ich sulch tass worked &rectly thi high egplomiv charge. aTb arbitrater quotes froma n arsenal regulation which defines proximity as icluding bet parseo "handlir g or wokitng dir ctly with someon wh*oin handling the agnts (i.e., theose roam, on the s _tachIne or on thesata: conveyor line)' The arbitrator deterinet d that r gardles of the risks eionvoleod It aweemblyand loading operatous the employe nvlvet teI suh tbask worked ih cloe proxmi ty to thepbloyg degre hazard area 1: because they eriskot protected Drea thment'h risk area inga mnr I ap.aretw h vould.pratheally elimnathhethe poesibilety of serious ijury to .ty the as the result of a daccidental detonation in thehagh risk area. Thus, aithouph the Department did not accept nr adopt the arbitrator's reao ening with respect to the ue of degree of risk of ccidentsl deoua~tiou it did accept the arbitrator'os finding to the extent that it was based or th proxrmity of i thployrest o the buildings rcavend to the high ri k ar a. The Department's position i that regard i appar nt rea the fact that the Arsenal was dir cted to erect additsonal barriers which would provide a further shield between the areas involved *tO prevent more effectively the effects of an accidental explosion in the high risk are t ram reaching the rest of the building and to prevent / employee not assipted to the high risk area from entering in or appwoactr - in that area. Upon erection of such addi~tional bar~rir the Arsena wa 4.- to reduce the differential pald employees working outside the shielded area. It Is apparent, therefore, that the Department has determined that the tftSg of hazard differential for some of the employees in buildings 1090 and 807 at the 4 percent rate was incorrect and that prior to *rec- tios of added protection for those mployees they should have bktn paid hazard differential at the 8 percent rate. It follows that the employee concerned who received a hazard differential under the erroneous applicae tion of the regulations which wvra effective the begaining of first pay period on or after November 1, 1970, should have their pay adjusted frou the date their pay was first fized in a mainer -ot consistent with the applicable regulation. Wears ware of no basis for limiting their recovery of back pay to the period comscing February 1, 19729 as t recommended by the arbitrator. 4 4.. b~~~~~~~~~~~~~~~~~~ b-163901' As to the *ffoct of an arbitration award which Is not La keeping l~th controlling Invw and regulations we point out that the appllcable ftacutive Ordor, Department of Defcn c regul~aton and labor-w nag emet agro _ at *11 provide that applicable I*%s*d rgultions se vill be con-: tro~lliuS over the labor-manageaent agroomente See section 12(a)v Itaccutti* Order No, 11491, October 29, 1969; paragrapbs VII*B3*3co and ltIIIA919 DOD Directive 1421*1; chapterto acrticle 4, section C. of the agreement betw ee Pleatiany Arsenal and Wag* Board Volts Local 225, A R. .pprove SJun 21, 1971, a revl**t an extded by the agreem at 4~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ approv d Octob r 22, 1971. 4~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~. For the reasons-tatod we hold that the employees coac rmot werer *ntltled as long as th y were employed la buildlap 1090 and 807 without adoquate protection from tha *r* where work was pctfor ed on -omploolva chargs- to the higb hac-rt pay of 8 percent as computed under section S8-7 of rPM Supplem nt S32-1, rotroactlve to tbe *ffoctlve dato of that 9~~~~~~~~~~~~~ regulatlon. You are authorized to take the n ce sary action to process the additional paymets as soon ^o possibloo It may be you shoult sug- goat to the Civil Service Comisslon that the applicable r gulatlonl be clarified no as to alinktec any similar qucctloos &rising In the future. Sincerely your , Paul C;-Dembllng .. For tho Comptroller cenrcl o£ the United States
Entitlement to Additional Retroactive Hazard Differential
Published by the Government Accountability Office on 1971-05-02.
Below is a raw (and likely hideous) rendition of the original report. (PDF)