The opinion
NEELY, Justice,
dissenting:
I respectfully dissent to the broad policy implications of the majority opinion. My disagreement with the majority is predicated exclusively upon the generally observed phenomenon that jobs in higher classifications are not necessarily less attractive than jobs in lower classifications in terms of inherent interest, difficulty, number of hours, or working conditions. At the simplest level, most private soldiers in the infantry would be pleased to assume the duties of full colonels without any increase in pay simply because of colonels’ lower mortality rate.
There are, indeed, occasions when workers receive money as direct compensation for long hours, unpleasant working conditions, danger, or difficulty of the work. But, strange as it may seem, this is not usually the pattern in government service. In the seventeen years that I have worked for different governments, it has been my observation that jobs in higher classifications are more attractive than jobs in lower classifications based upon factors entirely unrelated to pay or benefits. Consequently, most employees in government are pleased to accept assignments to jobs in higher classifications than their own formal rating even without the benefit of the higher pay. I agree with the majority, that when a person does not want to accept a job above his classification without being reclassified he should not be forced to work in that job. In this case, however, the position of the Civil Service Commission is correct: a person cannot sit back for years working outside of his classification and then, having lulled the government agency into a false sense of security, file a grievance demanding back pay for years before the grievance was filed.
Furthermore, the likely effect of today’s decision is to destroy a perfectly legitimate strategy for promotion — namely, willing acceptance by employees of jobs superior to their formal rating so that they may demonstrate competence in those jobs and firmly stake out their claims to them while waiting for positions at higher pay in the table of organization to become available. Many of today’s well paid government employees got to their current positions by seeking out responsibility above and beyond their formal classifications and proving their abilities, often in spite of the fact that they lacked paper credentials, such as college diplomas, that would have been required had they applied from outside for the same job.
Consequently, I believe that the better view of the law is that although a person need never work involuntarily outside of his classification, he has a responsibility to bring his reluctance in that regard to the attention of his supervisor and, if an acceptable accommodation cannot be worked out informally, to file a grievance. Thus back pay should begin to accrue only at such point as a worker demonstrates his reluctance to assume the duties of a job in a higher classification unless he is reclassified. Although such a holding might, on occasion, work an injustice, today’s majority opinion, by foreclosing' existing informal channels for upward mobility, is liable to work a far greater injustice.