Labor & Employment Law

Arbitrator?s imposing a penalty of ?time served? while the employee was suspended without pay ruled arbitrary

Arbitrator?s imposing a penalty of ?time served? while the employee was suspended without pay ruled arbitrary

Lance Greenstreet v Social Security Administration, USCA, Federal Circuit, Docket 2007-3312

In a grievance arising from defendant's termination of plaintiff-employee, an arbitrator's decision reinstating plaintiff without back pay is affirmed in part, vacated in part, and remanded where the denial of back pay converted plaintiff's termination into a suspension based solely on his "time served," i.e., the time he spent awaiting a decision on his grievance, and such a suspension is arbitrary.

The US Court of Appeals, Federal Circuit, was asked to review an arbitration award [see Fed?n of Gov?t Employees (AFGE) Local 1923, Case No. BW-2007-R-0006] that found that ?termination was an excessive penalty? and directed Social Security to reinstate Lance Greenstreet to his position without back pay. Greenstreet contended that the effect of the arbitrator?s decision was a 342-day ?time served? suspension, the length of which was arbitrarily determined by the time that the arbitrator took to issue the decision.

The court ruled that ?Because the length of a suspension is arbitrary when it is based solely on the employee?s ?time served,? and vacated that portion of the award. The Federal Circuit then remand the case ?for consideration of the appropriate length of Greenstreet?s suspension.?

In this instance, said the court. Althought the arbitrator did not expressly describe his award as imposing a ?time served? suspension, that is precisely the impact of the award. ?By mitigating Greenstreet?s termination to reinstatement without back pay, the arbitrator effectively converted Greenstreet?s penalty to a suspension without pay for 342 days?.? Noting that neither party contended that the arbitrator erred in determining that termination was not the appropriate penalty to be imposed in Greenstreet?s case, the court ruled that ?The arbitrator?s imposition of a ?time served? suspension is therefore arbitrary and must be vacated.?

Full post as published by New York Public Personnel Law on September 29, 2008 (boomark / email).