Most Fed labor agreements require management to temporarily promote employees when it details them for more than some number of days in a year to a higher graded position, e.g., 30 days.  For literally an entire LR generation (and through four Presidential Administrations), unions could get back pay for employees assigned higher graded work no matter how long they were assigned to the work. AFGE, 2 FLRA 684 (1980); AFGE, 20 FLRA 684 (1985); IFPTE, 37 FLRA 1111 (1990); and NAAE, 51 FLRA 1220 (1996).  This was even allowed before there was a labor relations statute. (IAM, 5 FLRC 530 (1977))  Then, in 2004, just as the Commander-in-Chief was trying to take Social Security guarantees from older Americans, his Agitator-in-Chief at the FLRA (aka Dale Cabaniss), led a more successful effort to take away back pay from employees assigned to do more difficult work than hired to do for more than 120 days. 

Before we go on, let’s set the scene for this analysis.  Assume that a long-time GS-11 Examiner named Imogene was just finishing the cake from her colleague’s retirement party when her manager stopped to talk.  He told her that he would like her to pick up some of the retiring Examiner’s work until he is replaced.  In the midst of her sugar high and hoping for a promotion to the now vacant slot, the GS-11 Examiner instantly agreed–and just as quickly the manager handed her four of the cases the retiree was working.  He handed the other half of the retiree’s workload to Jose, the other GS-12 Examiner in the office, because the retiree’s cases were all GS-12 cases. In short, without saying so, the manager assigned Imogene higher graded work.

Now fast-forward two years and assume that the GS-11 Examiner is sitting in your union office complaining that she continues to do the retiree’s GS-12 work without ever getting promoted.  She is asking if the union can do anything for her. As the union rep, you have some good news and lots of bad news for her thanks to the FLRA’s 2005 decision.  The good news is that you can file a grievance and get her back pay.  The bad news starts with the fact that you can only get her 120 days of back pay a year, and it continues on with telling her you cannot get her permanently promoted to the GS-12 even though she performs as one, there is nothing you can do to force management to take her GS-12 work away, and that unions have been unable to get even the newly-constituted, post 2008 election FLRA to return to case law tradition spelled out over 30 years ago.

However, thanks to some creative lawyering in one case and a lucky set of facts in another, there may be a way to get around FLRA’s hyper-defensive refusal to rethink its position.

The Authority’s current ruling is based on a government-wide rule, namely 5 CFR 335.103(c), which requires agencies that assign employees to higher graded work for more than 120 days throughout the year to do so via a competitive promotion. Even though ABSOLUTELY NOTHING in that regulation speaks to an employee’s right to compensation under the Back Pay Act statute when management violates the rule (and despite decades of precedent), FLRA asked OPM in 2004 to give it an advisory interpretation of the reg.

Lo and behold, the Office of Personnel MANAGEMENT pronounced that the rule was there not to protect employees, but to protect management from any damages when it exploited employees. (NAGE, 60 FLRA 46 (2004)) Consequently, OPM advised that employees could receive no more than 120 days of higher graded pay no matter how long they were assigned that work.   FLRA bought that interpretation even though it was not required to.  To date, both NTEU and AFGE have tried unsuccessfully in separate cases to get FLRA to readopt the decades-old interpretation. But even FLRA’s current Chair, Carolyn Pope–who spent nearly eight years single-handedly fighting Cabaniss’ efforts to ravage the Authority, its case law, and the workplace stability it produced–seems to buy it. (NTEU, 60 FLRA 978 (2005))

So, let’s walk through the creative, albeit needlessly more complicated, ways to get Imogene justice now that FLRA has taken away the easy route.  One way was outlined in NTEU, 47 FLRA 207 (1993).  The union asked the arbitrator to give the employee a 120 day retroactive promotion for every 12 months she had done the work over several years.  FLRA agreed that was legal.  That precedent would get our Imogene 240 days of retroactive pay and she would likely earn another 120 days while the grievance moved through to arbitration.  (Remember, if management suddenly takes the work from Imogene when she files a grievance that is most likely illegal retaliation under 5 USC 7116(a)(1).)

A second way to boost her back pay potential would be to ask the arbitrator to order the agency to retroactively run a competitive action each year it assigned the higher-grade work for more than 120 days without compensation.  (AFGE, 58 FLRA 739 (2003) discusses the arbitrator’s authority to order agencies to run promotion actions.) Furthermore, if that competitive action results in Imogene getting selected, then ask the arbitrator to order that she be paid for the entire time, irrespective of the 120 day limit on noncompetitive actions. (Remember not to ask that Imogene be permanently promoted to the GS-12 job because that likely renders the grievance non-arbitrable.  FLRA considers demand for permanent grade changes to be classifications matters.  See NTEU, 63 FLRA 574 (2009).)

The union should also ask the arbitrator to give Imogene priority consideration in that competitive action because of her prior unfair treatment resulting from management’s failure to follow the 5 CFR 335.103(c). (Remember, if the agency alleges that Imogene did not have time-in-grade to qualify for the GS-12 promotion, FLRA has held that regulations allow for that requirement to be waived. If it alleges she failed to meet some other qualifications, check the Qualification Standard to see if there are alternate ways to qualify her. Otherwise, she can only get the temporary promotion for the period of time during which she met the minimum qualification standards. AFGE, 38 FLRA 89 (1990) (Remember that according to OPM an employee need only spend 25% or more of her work time doing higher-graded duties to be entitled to the higher grade. (NTEU, 47 FLRA 207 (1993))

If the union succeeds at getting Imogene a temporary promotion lasting more than one year, it should also ask the arbitrator that she be given the highest previous rate (HPR) when returned to her permanent GS-11. (NTEU, 64 FLRA 615 (2010) That will prevent management from cutting her pay below what she was entitled to after working in the GS-12 grade for more than two years; it would also get her a permanent pay increase of about $7,000. Check out OPM’s advice about the HPR (Don’t forget that Imogene might also be entitled to a step increase in the GS-12 grade if she served more than one year.)

A third way to get Imogene the money she earned is outlined in TVFE, 55 FLRA 1014 (1999).  There the Authority held that the employees could be retroactively compensated without any requirement that they be officially temporarily promoted.  It is not strong precedent, but it is something to explore, especially if there is some technical obstacle to getting Imogene retroactively promoted.  In NTEU, 29 FLRA 348 (1987) the Authority approved an employee getting a special act award to compensate for the lack of a formal temporary promotion.

A fourth approach would be to file a discrimination charge alleging her Equal Pay Act (EPA) rights were violated.  It provides that if an employee of one gender is doing the same work that an employee of the opposite gender is doing, but getting paid less, then the former employee has suffered illegal discrimination.  That seems to be the situation with Imogene and Jose doing the GS-12 work.  (The law is a little more complex than our one-sentence summary.  So, read Coleman v. Donohue, Postal Service, 667 F.3d 835 (7th Cir., 2012) to see how the Act operates and be sure to get an attorney involved before the case moves to arbitration. FEDSMILL does not provide legal advice. )  If the union can establish an EPA violation it can then ask that Imogene be given compensation for damages she suffered, up to an additional $300,000 on top of her back pay.

Unfortunately, FLRA has ruled that employees cannot grieve violations of this particular civil rights statute. AFGE, 63 FLRA 216 (2009).  So, the union would have to file the EPA charge through the EEO procedures, but that is not all that bad because it gives the union a second bite at the back pay apple should the arbitrator find against Imogene.

This is one of those areas where it really pays to know the case law.  We hope we have helped other union activists do precisely that.

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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