In this case, we are called upon to determine whether a “time served” disciplinary suspension is arbitrary. Petitioner Lance Greenstreet (“Greenstreet”) was terminated from his position at the Social Security Administration (“SSA”). In a written decision issued 342 days after Greenstreet’s termination, аn arbitrator concluded that termination was an excessive penalty and ordered Greenstreet reinstated without back pay. In re Am. Fed’n of Gov’t Employees (AFGE) Local 1923, Case No. BW-2007-R-0006, slip op. at 22-23 (July 5, 2007) (“Arbitrator’s Decision ”). Green-street petitions for review of that decision, claiming that the effect of the arbitrator’s decision was a 342-day “time served” suspension, thе length of which was arbitrarily determined by the time that the arbitrator took to issue a decision.
Because the length of a suspension is arbitrary when it is based solely on the employee’s “time served,” we vacate the determination of the arbitrator in part, and remand for consideration of the appropriate length of Greenstreet’s suspension.
I. BACKGROUND
Greenstreet was an IT Specialist in the SSA’s Division of Integration and Environmental Testing, where he had worked for eleven years. On March 15, 2006, in an apparently isolated outburst, Greenstreet damaged a comрuter and other office equipment. As a result of this outburst, Greenstreet was first placed on administrative leave and later terminated, effective July 28, 2006.
Greenstreet’s union filed a grievance challenging the termination and requesting that Greenstreet be reinstated and granted back рay, leave, and benefits. The union also invoked the arbitration clause of its collective bargaining agreement, and the case was heard by an arbitrator on April 10, 2007. During the arbitration, Greenstreet conceded that his conduct was improper and that it warranted a “substantiаl suspension.” Id. at 11. Green-street argued, however, that termination was too severe a penalty. Id. The parties agreed that the issues to be decided by the arbitrator were: “Was the discharge of [Greenstreet] for such cause as would promote the efficiency of thе service? If not, what should be the remedy?” Arbitrator’s Decision at 7.
On July 5, 2007, the arbitrator issued a decision granting Greenstreet’s grievance in part. The arbitrator evaluated whether termination was an appropriate penalty, applying the factors set forth in
Douglas v. Veterans Administration,
Accordingly, for the reasons set out abоve — noting, particularly, the absence of prior discipline, the restitution made for the damaged property, the Griev-ant’s satisfactory work performance, and the Agency’s failure to adequately consider Grievant’s potential for rehabilitation, I conclude that the Grievant’s termination exceeds the limits of reasonableness as required by the Douglas factors and that a substantial suspension is the maximum reasonable penalty for the Grievant’s misconduct and for the efficiency of the service.
Arbitrator’s Decision at 22-23. The arbitrator accordingly ordered, “The Grievаnce is granted, in part. The Grievant shall be reinstated without back pay.” Id. at 23.
II. DISCUSSION
Pursuant to 5 U.S.C. § 7121(f), we review decisions of an arbitrator in a negotiated grievance proceeding “in the same manner and under the same conditions as if the matter had been decided by the Board.”
See also Cornelius v. Nutt,
(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(2) obtained without procedures required by law, rule, or regulation having been followed; or
(3) unsupported by substantial evidence ....
5 U.S.C. § 7703(c) (2006).
Although the arbitrator in this case did not expressly describe his award as imposing a “time served” suspension, that is precisely what the award did. By mitigating Greenstreet’s terminatiоn to reinstatement without back pay, the arbitrator effectively converted Greenstreet’s penalty to a suspension without pay for 342 days— from July 28, 2006 (the date that Green-street was terminated) to July 5, 2007 (the date of the arbitrator’s decision). Neither party disputes that the arbitrator еffectively imposed a 342-day “time served” disciplinary suspension. Greenstreet argues that a “time served” suspension is inherently arbitrary and capricious, because it is based solely on the length of time that elapses between the date of the termination and the date of thе arbitrator’s decision.
Our predecessor court first addressed “time served” suspensions in
Cuiffo v. United States,
The United States Court of Claims set aside the suspension as “arbitrary and unfair.” Id. at 70. The court found two problems with the suspension: (1) that it was “out of all proportion to the offense”; and (2) that it was “determined by accident.” Id. at 68, 69. Specifically, the court reasoned:
We think that plaintiffs punishment was determined by accident, and not by a process of logical deliberation and decision. We have no doubt that, had the Review Board reached the plaintiffs case within 10 days or 30 days after his removal, they would have nullified his removal, as they did, and would have ordered his immediate reinstatement. But the Board did not reach the case for several months, and after it and the Acting Chief of Transportation had acted, the agency did not get аround to reinstating the plaintiff for several more months. This casual attitude toward the livelihood of a working man, found bythe Review Board to be “a veteran of World War I, 55 years of age, who enjoyed an enviable record at the port” and having “a good reputation for honesty, sobriety, integrity and veracity” was a complete departure from fair dealing and tolerable personnel policy. We think it was so arbitrary and unfair that it should be set aside.
Id. at 69-70. Cuiffo did not expressly hold that any “time served” suspension is necessarily arbitrary. Rather, the court reasoned that Cuiffo’s “time served” suspensiоn was “arbitrary and unfair” because it was solely “determined by accident, and not by a process of logical deliberation and decision.” Id. at 69.
Relying on
Cuiffo,
the Merit Systems Protection Board (“MSPB”) has consistently and repeatedly held that mitigating a termination to a “time served” suspension — without articulаting a basis for the length of the suspension — is inherently arbitrary.
See, e.g., Fulks v. Dep’t of Def.,
The SSA makes no attempt to distinguish this long line of MSPB cases. Instead, the SSA simply points out (correctly) that we are not bound by the decisions of the MSPB.
See
Br. for Resp’t at 16. Nevertheless, we proceed with caution when asked to depart from twenty-five years of MSPB precedent, particularly since the express purpose for judicial review of arbitrators’ decisions in the negotiated grievance context is to bring those decisions into conformity with the decisions of the MSPB.
See Cornelius,
The SSA instead relies on decisions of this court under the Back Pay Act tо support its argument that “time served” penalties are not arbitrary. Under the Back Pay Act, 5 U.S.C. § 5596(b)(l)(A)(i), an employee who has been “affected by an unjustified or unwarranted personnel action” is entitled to receive back pay when the action has been corrected. In the first of the two cases that the SSA cites—
American Federation
— an employee appealed his termination to an arbitrator, who mitigated the termination to a suspension without back pay.
Am. Fed’n of Gov’t Employees, Local 2718 v. Dep’t of Justice,
In
Ollett v. Department of the Air Force
— the second case that the SSA cites — an arbitrator similarly mitigated an employee’s removal to suspension and denied back pay.
Finally, the SSA relies on the persuasiveness of this court’s nonprecedential decision in
Stilley v. Department of Veterans Affairs,
We do not find the SSA’s reliance on Stilley persuasive, for several reasons. First, in Stilley, the arbitrator expressly considered “factors such as [Stilley’s] twenty-four years of exemplary and discipline-free service and her willingness to admit her actions were wrong” in setting the length of her suspension. Id. The arbitrator in this case made no such findings concerning the appropriateness of the length of Greenstreet’s suspension. Second, Stilley did nоt challenge the length of her suspension as arbitrary because it was based solely on “time served.” Instead, the Stilley panel characterized Stilley’s argument as one that her “time served” suspension was an “inappropriate” — i.e., disproportionate — penalty. Id. By contrast, Greenstreet squarely argues that his suspension was arbitrary in length because it was based solely on “time served.” Finally, because the Stilley panel cites and relies on this court’s Back Pay Act decisions in Ollett and American Federation, the panel understood Stilley’s argument to be premised on the Back Pay Act. See id. Here, however, Greenstreet’s argument is nоt based on the Back Pay Act.
We conclude that the reasoning of
Cuiffo,
consistent with the holdings of the MSPB, is sound and hold that that the length of a suspension is arbitrary when it is based solely on the suspended employee’s “time served” awaiting decision.
See, e.cj., Fulks,
In this case, the arbitrator based the length of Greenstreet’s suspension solely on “time served.” Although the arbitrator conducted аn analysis under the Douglas factors, his analysis was directed entirely to whether termination was an appropriate penalty. The arbitrator’s opinion contains no findings or analysis concerning the appropriate length of Greenstreet’s suspension. The arbitrator’s imposition of a “time served” suspension is therefore arbitrary and must be vacated. Neither party has asserted that the arbitrator erred by concluding that termination was not an appropriate remedy; that aspect of the arbitrator’s determination is therefore affirmed.
III. CONCLUSION
For the foregoing reasons, we vacate the arbitrator’s decision in part, and remand for consideration of the appropriate length of Greenstreet’s suspension under Douglas. In all other respects, the arbitrator’s decision is affirmed.
AFFIRMED-IN-PART, VACATED-IN-PART, AND REMANDED.
COSTS
Each party shall bear its own costs.