Attorney Bryant Wins Acting Out of Grade Pay Grievance for SENA, Steelworkers Local 9158

It sometimes is said that substance is more important than form in labor agreements. To state in language a child can understand, if it walks and talks like a duck, then it's a duck, even if the boss calls it a "Program Supervisor."

That elementary principle was at play in this arbitration, where the City of Boston denied "acting out of grade pay" because it never actually promoted the Grievant on an interim basis and because the new duties were within Grievant's job description.

Many unions negotiate "acting out of grade" (or "temporary service in a higher rank" or "out of classification") provisions to recognize the additional work and responsibilities of employees when a superior is absent. In this case, the head of a Boston youth center, known as an Administrative Coordinator, retired. This retirement of left the Center without a director for nearly six months. The City did not promote anyone to this position on an acting basis. Instead, the City encouraged the second-highest ranking worker, known as a Program Supervisor, to assume duties previously performed by the Administrative Coordinator. Overnight, the Program Supervisor went from second-in-command to second-to-none.

The City denied acting out of grade pay, claiming that the City
never officially promoted the Program Supervisor as an Acting Administrative Coordinator, and because the duties performed during this period fit within this job description. In other words, the City was arguing, "You can't be a duck because we never sent you paper stating you are a duck and because walking and talking is consistent with being a Program Supervisor."

Thankfully, the independent arbitrator agreed with Attorney Patrick Bryant that because the Program Supervisor actually performed the duties previously performed by the Administrative Coordinator, the collective bargaining agreement required the City to pay the Program Supervisor at the level of the Administrative Coordinator. Formalities, be damned.

"When describing the role of the Administrative Coordinator at CENTER, MANAGER stated that 'the buck stops with the Administrative Coordinator.' For over six months, the Grievant was the highest ranking person on-site, directly supervising individuals that COORDINATOR had supervised and performing duties that COORDINATOR had done in the past. In other words, the buck stopped with the Grievant."

In other words, because the Grievant walked and talked like a duck, she deserved to be paid like a duck. Or an Administrative Coordinator.