Attorney Gordon O'Connell Wins Out-of-Title Pay for Steelworker at MassDOT

Attorney Al Gordon O'Connell won an important arbitration decision on behalf of USW, Local 5696 to obtain out-of-title pay for an employee of MassDOT who was horribly misclassified during the merger between the Turnpike Authority and Mass. Highway. The decision draws on standard out-of-title pay principles applicable to all state collective bargaining agreements.

When MassPike and Mass. Highway were merged in 2009 as part of the much-maligned Transportation Reform Act, the state was tasked with classifying all former MassPike employees into state classifications. A Steelworkers member in a high-ranking fleet management position refused to be classified into a non-union administrative title and, as a result, was shockingly classified as a mechanic at a much lower rate of pay. While the Union continued to fight this obvious misclassification through the contractual appeal process, MassDOT posted the grievant's actual job as an opening to be filled by someone else. When the Union complained, the Department withdrew the posting, and the union demanded that the grievant be paid based on this now-withdrawn job posting.

At arbitration, MassDOT contended that the matter was a non-arbitrable end-run around the classification appeal process. The arbitrator disagreed and applied standard out-of-title pay analysis to determine that the grievant was entitled to the pay for the job he was performing. As required by the CBA, the arbitrator determined that the Employer assigned the grievant to perform the functions of an unfilled position -- i.e., the posting that MassDOT withdrew -- and granted him more than three-and-a-half years of backpay (including overtime) retroactive to the date that MassDOT posted the vacancy.