Office of the General Counsel

S9601119 and S9601120

Attorney for Claimants

Dear Ms. [xxx]:

We have reviewed the claims for retroactive environmental differential pay (EDP) that you submitted to the General Accounting Office (GAO) on July 2, 1996, on behalf of former civilian employees of the [agency]. For the reasons discussed herein, these claims are denied.

On November 11, 1987, Messrs [xxx] and [xxx] were reassigned from Telephone Mechanic positions to Wire Communication Equipment Installer and Repair (WCEI&R) positions. As a result of the reassignments, Messrs. [xxx] and [xxx] changed bargaining units and were thereafter represented by the [union]. 

On September 8, 1989, Mr. [xxx] submitted an EDP claim to the Agency. On December 4, 1989, the agency and [union] reached an agreement which granted retroactive EDP for exposure to asbestos to a limited number of employees at [xxx] for the period from November 1, 1982 to November 1, 1988. While the agreement provided that claims were to be submitted no later than April 16, 1990, the agreement did not grant retroactive EDP for individuals in either Telephone Mechanic or WCEI&R positions. On May 11, 1990, Mr. [xxx] submitted an EDP claim to the agency.

On August 4, 1994, [union] submitted a retroactive EDP claim on behalf of Messrs. [xxx] and [xxx] for the period prior to March 1987. On August 17, 1994, the agency denied this claim as untimely and the [union] did not pursue an appeal as required by the collective bargaining agreement. As a consequence, this claim may not be reopened. [See AGREEMENT between [AGENCY and [UNION] (Apr. 15, 1981), 10, Art. XX, p. 17.]

By letter dated April 10, 1995, your firm informed the Agency that it had been retained to represent the claimants. On June 29, 1995, the Agency denied both claims and noted that GAO was precluded from taking jurisdiction of a claim on matters subject to a negotiated grievance procedure, citing Cecil E. Riggs, 71 Comp. Gen. 347 (1992).

In letters dated September 11, 1995, and July 2, 1996, you stated that the claimants had filed individual claims because they were not part of the bargaining unit, and that while the Union had gone forward with the individual claims of Messrs. [xxx] and [xxx], it had done so "not on behalf of them as members of the Union at the time of their exposure and claims." By letter dated July 10, 1996, the Agency responded to your representations, explaining as discussed above that as of their reassignments on November 11, 1987, the claimants had been represented by Local 1728.

By letters dated July 31, 1996, and August 12, 1996, you stated that the claims of Messrs. [xxx] and [xxx] had been timely filed and that adequate evidence established the claimants' asbestos exposure. You reiterated your position that the claimants were not represented by a union either when their claims arose or when their claims were filed; that the 1989 settlement did not include the claimants because they were not represented by [union] at that time; that the August 4, 1994 letter from [union] was not a grievance and did not affect the status of the claims; and that the claimants were not added on to the bargaining unit represented by [union] until 1992.

The claimants and the Agency disagree concerning whether the claimants were subject to a negotiated grievance procedure when their claims were filed. Where the record presents an irreconcilable dispute of fact, the burden of proof is on the claimant. See 4 C.F.R. 31.7 (1989); Nathaniel C. Carter, B-238487, May 25, 1990; Jones and Short, B-205282, June 15, 1982; and Wade B. Bumgardner, B-184795, August 5, 1976. We must adjudicate claims on the basis of the record before us.

Accepting the Agency's statement that the claimants were subject to a negotiated grievance procedure between November 11, 1987, and when their claims were filed, we concur with the Agency's determination that we are precluded from taking jurisdiction of this portion of the claims. Cecil E. Riggs, supra.

As concerns the periods of the claims prior to November 11, 1987, we have been advised by the Agency that at least during certain portions of these periods, neither claimant was subject to a negotiated grievance procedure. However, entitlement to EDP is a determination that is committed to the discretion of the employing agency. We are in no position to question the Agency's assessment of the hazards involved or the adequacy of the safety precautions taken to minimize the risk of harm. Because the agency involved has reviewed the claims, and because there is no obvious basis for this agency to question those findings, these claims are denied.

Sincerely yours,

Murray M. MeekerSenior Attorney

cc: [agency]

 

MEMORANDUM FOR

THE FILE
FROM: MURRAY M. MEEKER SENIOR ATTORNEY

SUBJECT:

[Claimants]

On 4/11/97, Mr. [xxx], the agency representative, explained to me that the [union] erred at least twice. First, the [union] erred in not including these two claimants in the claim that precipitated the 1989 agreement and second, the [union] failed to request arbitration when the claim that they subsequently filed on behalf of Messrs. [xxx] and [xxx] was denied. Had the [union] done either of these things, the claimants would most likely have received the differential. Mr. [xxx] explained further, however, that the reason that the 1989 agreement was reached was not as a result of the evidence presented by the union. Rather, it was primarily because the Agency wanted to resolve the grievance without pursuing arbitration. Mr. [xxx] also noted that the claimants' attorneys have rejected settlement offers to resolve the instant claims.