The city of Somerville paid a clerical worker out-of-grade pay when she filled in for a higher-paid co-worker, but it stopped that compensation practice in February 2008.

What happened. In 2007, “Bailey” started working in a non-civil service position in the city’s inspectional services department. She worked in a two-person office alongside “Shannon,” an administrative assistant, which was a higher-paying, civil service position. Both were members of different bargaining units within the Somerville Municipal Employees Association.

When Shannon took sick leave or vacation, Bailey was required to cover for her. On such occasions, Bailey would apply for out-of-grade pay based on the difference between her regular compensation and Shannon’s regular pay. Initially, Bailey received out-of-grade pay each time, under the terms of the collective bargaining agreement (CBA) between the city and the association.

However, starting in February 2008, the city denied her requests for out-of-grade pay. The association filed a grievance, and the matter proceeded to arbitration.

The arbitrator found that the city had violated the CBA when it denied Bailey’s requests for out-of-grade pay. A Superior Court judge confirmed the arbitration award, and the city appealed to the Supreme Judicial Court, arguing that the arbitrator’s award ordered conduct that is prohibited by the state’s civil service law.

What the court said. The court affirmed, saying the CBA did not violate the civil service law and disagreeing with the city that Bailey’s out-of-grade pay was effectively “compensation arising out of an improper original appointment or as a promotional appointment.”

“In short,…[Bailey] never received a civil service appointment and there was no vacant position to which she could have been appointed: she merely filled in temporarily for her coworker,” the court said.

There was no evidence that the out-of-grade pay was aimed at circumventing the requirements of the civil service law, the court explained. “Here, there were only two people in the office performing clerical duties, and there were no other eligible employees who were bypassed when…[Bailey] was required to fill in for her absent co-worker…Nor is this a situation where&hellip[Bailey] sought out opportunities to take over the duties of…[Shannon] to earn more money…” City of Somerville v. Somerville Municipal Employees Association, Massachusetts Supreme Judicial Court, No. 10-P-1283 (10/25/11).