Office of the General Counsel

OPM Ref. # 1996-00942

Commander, U.S. Officer[agency component]

Attention: [xxx]

Re: Claim for hazard or environmental pay differential:

et al.

Dear Commander [xxx]:

We have reviewed the claim for Hazard and/or Environmental Pay Differential that you submitted to the [agency] on December 12, 1995, concerning [xxx] and twelve other employees at the [xxx] Station.

The Administrative Report indicates that eleven of the thirteen employees are included in a bargaining unit that is covered by a collective bargaining agreement which includes negotiated grievance procedures. The Office of Personnel Management (OPM) cannot take jurisdiction over the claim of a Federal employee on a matter that is subject to a negotiated grievance procedure under a collective bargaining agreement between the employees agency and union, unless that matter is or was specifically excluded from the agreements grievance procedure. This is because the courts have found that Congress intended that such a grievance procedure is to be the exclusive remedy for matters not excluded from the grievance process. Carter v. Gibbs, 909 F.2d 1425, 1453 (Fed. Cir. 1990) (en banc), cert. denied, 498 U.S. 811 (1990), construing therein the provision in the Civil Service Reform Act codified at 5 U.S.C.  7121(a) which mandates that the grievance procedures in negotiated collective bargaining agreements be the exclusive remedy for matters covered by the agreements. Accord, Cecil E. Riggs et al., B-222962.3, April 23, 1992. Thus, OPM lacks jurisdiction to review the claims of the eleven covered employees. For the reasons expressed herein, OPM grants the hazard duty pay (HDP) claims of[xxx] and [xxx], the two supervisory employees who are not included in the bargaining unit.

The record establishes that Ms.[xxx] and Ms. [xxx] perform their administrative duties at work sites that are located within the "explosive arc" of an ordnance loading pier; that [agency] policy and [agency] regulations provide that no administrative employees shall be located in an explosive arc [NAVSEA OP 5 Vol. 1 (sixth rev.) 7-6.1 ("Determination of personnel limits requires that tasks not necessary to a particular hazardous operation be prohibited within the immediate vicinity of the hazard")]; and that a waiver was issued in order that these employees could remain in the explosive arc until another building could be built outside of the arc.

The Administrative Report identified three reasons for denying the HDP claims: (1) None of the claimants works "hands-on" with ordnance; (2) Other employees who are not "hands-on" are not compensated with HDP or an Environmental Difference Pay; and (3) Risk to the employees is minimal, and although these employees work inside an explosive arc, just being inside the arc does not entitle them to the differential.

However, the relevant standard in OPM's Schedule of Pay Differentials Authorized for Hazardous Duty authorizes HDP even when the employee only works in "proximity" to "explosive or incendiary materials"; it is not necessary that employees work "hands-on" with explosive material in order to receive the HDP. See 5 C.F.R. Part 550, Subpart I, Appendix A. The fact that other employees who have no "hands-on" contact with explosive material do not receive an HDP does not address the merits of the claims. It may be that these other employees are also entitled to an HDP.

OPM's standard for reviewing HDP claims is highly deferential to the agency; we will overturn an agency's decision to deny HDP only if we conclude that the agency's denial is arbitrary or capricious. Thus, we would not dispute the agency's determination of where to draw the arc, that is, the proximity of the working area to the explosive materials that constitutes a safe distance. We also would not object to exceptions made at the Command level to the policy of placing administrative personnel outside the arc, provided the Command had such authority and the exceptions were based on findings that the conditions giving rise to the HDP no longer existed or that adequate safety precautions had been taken to reduce the hazard to a less than significant level of risk. See 5 C.F.R. 550.906.

In this case, however, there was no finding that the hazard to the administrative employees had been reduced to a less than significant level of risk until after the claims for HDP had been filed. Moreover, it does not appear that the local Command has discretion in this matter.

We note the following paragraph from enclosure 1 to the March 16, 1995 memorandum from the Employment and Classification Officer to the Weapons Officer:

5. Although administrative personnel work within the explosive arc, the new Building currently being planned will be located outside the arc and will thus completely relieve that risk. The stations very acknowledgment of non-compliance with [agency] policy has placed extra emphasis upon safe weapons handling procedures, once again reducing the risk to a less than significant level.

This paragraph begs the question, what risk? We need not answer that question, though, since the local Command acknowledges that it is not in compliance with applicable safety regulations issued by [agency].

As we noted above, we give great deference to agencies in the administration of HDP. In this case, that would be to [agency], and not the [agency component]. The relevant [agency] policy regarding the placement of administrative employees within explosive arcs apparently does not allow for local exceptions. If it did, we would show equal deference to the local Commanders decision. However, in the absence of such authority and until the local activity is able to comply with [agency policy, the administrative employees who work within the administrative arc should be receiving HDP.

Sincerely yours,

Murray M. Meeker

Senior Attorney