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)

                                                   a                                    *~~~~~~~~Ma
                                                                                           '.  1973

                    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
           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
                       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
           appIcabe labor-mAna4;mtaiceLtITa                                   reanewsreetdb

                          th    renla tefna             eelo      dtnurtieapelo                   Ags     3/91

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J-163901                                                                              -/
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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

     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



          .   .

             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
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~          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
                   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.




        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

  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

   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