Is a 342-Day Federal Employee Suspension Too Long?
By Ralph Smith
Wednesday, October 8, 2008
The Civil Service Reform Act of 1978 set up the ability of unions to go to arbitration in certain kinds of cases. In theory, it provides a quicker resolution to a case which, presumably, will be to the benefit of all parties involved.
But speed is not always the result. Firing a federal employee can take a few years--even if the agency is successful and even if the case goes to arbitration instead of to the Merit Systems Protection Board (MSPB). Here is an example of a unique case in which an arbitrator issued a decision but the case continued on to court with the court sending the decision back for more work.
In Greenstreet v. Social Security Administration, C.A.F.C. 2007-3312 (September 24, 2008), an employee of the agency was fired, a grievance was filed and the case went to arbitration. The employee, who was an IT specialist for the agency, was fired on July 26, 2006 after damaging a computer and other office equipment. The case was heard by the arbitrator on April 20, 2007. In July 2007, the arbitrator issued a decision that decided termination was too severe and ordered Greenstreet reinstated but without back pay.
In effect, the arbitrator changed the penalty from removal to a suspension without pay for 342 days.
That decision displeased the employee and the case went forward to the Court of Appeals for the Federal Circuit.
He convinced the court that the case should go on. The court concluded that the suspension based only on the employee's "time served" without pay was arbitrary when the decision was not made based on a process of "logical deliberation and decision."
To allow a decision based on this process, concluded the court, means that the length of the suspension was not based on an employee's particular situation but on the speed with which the representative handled the case and the length of time required to issue the decision.
That, concluded the appeals court, is the problem In this case as the arbitrator's opinion did not deliberate on the appropriate length of the employee suspension. It was a decision that reached a conclusion without this analysis.
In effect, the court upheld the portion of the arbitrator's decision that the employee should but reinstated but sent the case back for consideration and analysis on the appropriate length of the suspension.
So, more than two years after the employee was fired, there is still at least one more round to go before this case is concluded. The arbitrator could, of course, issue a decision that concludes the lengthy suspension was appropriate and give the reasons for the conclusion or he could reduce length of the suspension. That would mean that the agency would provide some amount of back pay to the employee it tried to fire since 2006. With any luck, there will be a final decision sometime in 2009.
© 2009 FedSmith Inc. All rights reserved. This article may not be reproduced without express written consent of FedSmith Inc.
|
Readers' Comments
Posted: April 20, 2009 1:53 PM
Posted: October 15, 2008 10:19 AM
Posted: October 10, 2008 9:58 PM
View All Comments »