FLRA AMISTAD PRECEDENT SCUTTLED
A good argument can be made that the previous White House staffed the FLRA with appointees eager to punish unions and employees for political purposes. One of their more notorious revenge efforts was aimed at an employee’s right to be temporarily and retroactively promoted to a higher salary grade if s/he did work classified at a higher grade than their permanent grade. (See SBA, 70 FLRA 729 (2018)) In short, the prior FLRA leadership took the right away by inventing criteria that were almost impossible to meet. Their alleged reason was that modern employees must accept that employers need to pay them less than the job legally requires. That always struck us as very similar to the speech the captain of the slave-ship Amistad probably gave his captives. Well,…
on December 9, 2022, the now professionally and neutrally staffed FLRA tossed the political revenge criteria overboard. See Marine Corps, CA and AFGE, 73 FLRA 379 (2022). It announced that these higher graded duty grievances would henceforth be decided using the precedential criteria that was in place for years before it was trumped. Get it?
In this new case a supervisor assigned the GS-9 grievant all of the GS-12 protocol officer’s job duties when that officer was unable to do his job. When the grievant requested a retroactive temporary promotion to GS-12 protocol officer level, the agency turned him down. When the arbitrator ordered a retroactive promotion, the agency filed exceptions with FLRA hoping that the previous Administration’s draconian criteria would still apply.
The current FLRA ruled that the core issue to be decided in these cases is whether a grievance is barred by § 7121(c)(5) of the Statute because it concerns classification. It wrote that the previous standard did not explain-
- how its four-part test accurately assesses whether a grievance concerns the classification of any position,
- why the Authority should adopt a presumption that a grievance alleging entitlement to a temporary promotion actually concerns classification,
- how the “political revenge” (those are our words) standard provides more clarity than the Authority’s previous standard.
Consequently, the FLRA ruled that it is returning to the standard applied by the Authority prior to the Amistad standard (again, our words). Those standards are below.
The Authority has construed the term “classification” in § 7121(c)(5) as involving “the analysis and identification of a position and placing it in a class under the position‑classification plan established by [the Office of Personnel Management] under chapter 51 of title 5, United States Code.” Where the substance of a grievance concerns the grade level of the duties permanently assigned to and performed by an employee, the grievance concerns the classification of a position within the meaning of § 7121(c)(5). However, where the substance of the grievance concerns whether the employee is entitled to a temporary promotion under a collective-bargaining agreement because the employee has performed the established duties of a higher-graded position, the grievance does not concern the classification of a position within the meaning of § 7121(c)(5).
If your union has any of these higher graded duty cases in the pipeline, you should notify the agency about this new decision. A settlement before arbitration could save the agency gobs of attorney fees. Unfortunately, nothing was done to change the wrong-headed precedent that employees can only get 120 days of back pay. We understand some unions have petitioned OPM to change its nutty 120-day back pay cap. But just in case OPM regrets the idea, some union should submit a bargaining proposal such as follows to set up a judicial test of whether the 120-day cap is legal: “When employees are entitled to retroactive temporary promotions for having performed higher graded work back pay will be granted for the entire period the employee endured the unwarranted and unjustified personnel action, not limited by a 120 day or similar cap.” That should force FLRA and the courts to assess the weight of the Back Pay Act against the OPM advisory opinion, as discussed in “Undertaking an HGDG Reversal Strategy.”
To get around the 120-day rule, I have simply filed a series of grievances for each 120-day period, a little more work but financially rewarding to the employee. Happy Holidays!
Good to hear from you. Someone told me you are in SF these days. True? In any event I think your bundling of 120-day claims is as good as any approach until this gets fixed at a more fundamental level. I am glad to see that Julie has taken my idea to ask OPM for a voluntary change of position, but someone should get something started along the litigation path in case OPM refuses. It would be a shame losing all the time while we wait for OPM to respond. I can’t imagine a court rules the plain language of the Back pay Act obligation to pay the harmed employee can be limited by an OPM reg or opinion–no matter what OPM says. I guess that is something Negotiations will have to initiate at some term bargaining table. Best of luck with what’s ahead in your career. I hope you love the work as much as I did, but do a better job than I did of tolerating any troubling, ethical-questionable behavior coming from above in the union. Merry Whatever.
Regretfully, Management has always deferred higher graded duties to lower graded employees for short periods of time to avoid filling slots or because the higher graded employee does not wish or cannot do the work. Case in point: lead position is rotated among team employees without higher grade pay until management fills the lead position. A proven way of protecting employee is to document the higher-graded duties not in their current position description and include it in their Annual Self-Assessment. This way Mangement has no recourse but to acknowledge the employee’s performance. I have won several cases as an NTEU steward and NTEU Chapter 72 President. The key is for employees to document all the duties they performed, especially higher graded duties, and include them on their Self-Assessment every year.
Thanks for sharing that. It is a solid idea. It would be a wonderful fallback position if unions could get agencies to pass out performance awards to those who carried higher graded duties during the year without getting a temp promotion. Good luck down ini Austin. I miss the city.