CREATIVE SOLUTION FOR HIGHER GRADED DUTY GRIEVANCE
It is one thing to have a great contract provision backing you up. In this case, the AFGE-DVA contract covering Pharmacy Technicians in Richmond, VA required temporary promotions for those who performed higher graded duties for 25 percent of the time for 10 or more days. That may be the best higher graded duty protection in any federal sector contract. But, you also need a savvy union to steer around the obstacles to enforcing contract rights through arbitration, and AFGE’s foresight did the trick in a very creative way when the employee asked for six years of back pay for the time he had been required to do the job of a person one grade higher than him.
The arbitrator had no problem finding that the employee performed higher-graded duties between late 2011 and mid-2015. She even quickly dismissed the agency’s objection that the employee forfeited any claim to back pay between 2011- and 2015 because the grievance wasn’t filed until 2015. The contract, like most in the federal sector, had a wide open path allowing the union to claim a continuing violation going back six years. Although LR’s mistake that allowed the union to reach back six years on a grievance only cost this agency a few thousand dollars at best, we have seen cases where it cost them tens of millions. Leaving that door open is one of the major examples of agency bargaining incompetence and unions had better prepare for a fight to close it after a few notorious agency losses.
But, the most objective hurdle to clear was the brutally insensitive OPM policy of punishing employees, not managers, when employees are assigned to higher graded duties for months and years. OPM’s regulations prohibit temporary promotions for periods in excess of 120 days a year unless done competitively. That blocks the employee’s right to get back pay covering the five or so years s/he worked at the higher grade level.
AFGE reps obviously saw this coming, did their homework and asked the arbitrator to order the employee retroactively promoted for 120 days for each year he was assigned higher graded duties. That work-around, although not widely discussed, is available for cases like this. Fedsmill spelled out it ad several other ways to get around the OPM roadblock. (See “How to Grieve Temporary Promotion Denials.”) The arbitrator agreed and even Member Pizzella, who seems hard-wired to jump like a Jack-in-the-Box whenever an employee prevails, was OK with the solution. So, we recommend that union reps keep a recollection of this cased and our previous posting in the back of their mind for when the same facts pop up in their back yard. (See U.S. Dept. of Veteran Affairs and AFGE, Local 2145, 70 FLRA 49 (2016))