Appealed from: Arbitrator
Before Nies, Chief Judge, Clevenger and Rader, Circuit Judges.
The Office of Personnel Management was granted leave to appeal an arbitrator's decision to reinstate Eugene Corrado to his position at National Aeronautics and Space Administration's (NASA) Goddard Space Flight Center. The arbitrator determined that the Government did not show a nexus between Mr. Corrado's conviction for possession of cocaine with intent to distribute and NASA's removal of Mr. Corrado to promote the efficiency of the service. Because the Government clearly showed a nexus, this court reverses.
On June 11, 1985, NASA hired Mr. Corrado as an Electrician at Goddard. In this position, Mr. Corrado maintained, repaired, and modified the entire Goddard electrical power distribution system. Thus, he was responsible in part for the central power plant, the main electrical substation, and the complex that houses Goddard's spacecraft tracking and data control centers. Mr. Corrado's position description stated:
An extreme degree of responsibility, knowledge, and skill is required in that . . . a serious mistake in judgment or technique could result in a total Center black-out or could impair the safety of personnel or equipment. Even an error of lesser magnitude could result in a loss of service to a critical area which might involve any loss from a multimillion dollar satellite to the lives of astronauts on a manned mission.
Mr. Corrado worked independently, with minimal supervision, and with full access to all buildings and areas of Goddard.
Eight months after beginning at Goddard, Mr. Corrado was arrested for possession of cocaine with intent to distribute. He pleaded guilty and was convicted. A month later, Mr. Corrado informed his employer of the conviction. After an investigation, Mr. Corrado's NASA supervisor proposed Mr. Corrado's removal. The proposal letter, however, did not set forth a nexus between Mr. Corrado's misconduct and NASA's removal proposal.
In his response, Mr. Corrado denied intentionally possessing or intending to distribute cocaine. An investigative report from NASA's Office of the Inspector General (OIG) contradicted this denial. The report, based on interviews with two informants, advised that Mr. Corrado had bought, sold, and used cocaine on numerous occasions.
After permitting Mr. Corrado to respond to the OIG report, the Director of Management Operations at Goddard removed Mr. Corrado to promote the efficiency of the service. The Director based this action on a clear nexus between Mr. Corrado's conviction and NASA's mission. She found that Mr. Corrado's conviction cast serious doubt upon his judgment and trustworthiness, both of which were deemed essential for his position. The Director asserted that the conviction caused NASA to lose confidence in Mr. Corrado's judgment with the safety of fellow NASA employees at stake.
Under 5 U.S.C. § 7121(e)(1) (1988), Mr. Corrado contested his removal through the grievance procedures in the collective bargaining agreement between NASA and the Washington Area Metal Trades Council, Mr. Corrado's union. An arbitrator heard the case and ordered NASA to reinstate Mr. Corrado. The arbitrator based its ruling on five findings: First, the arbitrator found that NASA denied Mr. Corrado due process because the notice of proposed removal did not state a nexus between his conviction and the proposed removal. Second, the arbitrator found that NASA's loss of confidence in Mr. Corrado did not satisfy the nexus standard without some showing of decline in Mr. Corrado's job performance. Third, the arbitrator found that Mr. Corrado's misconduct was not so egregious that a nexus could be presumed. Fourth, the arbitrator found that due process barred the Director from considering the OIG report and other evidence unrelated to the specific allegations in the notice of proposed removal. Finally, the arbitrator found the penalty of removal unreasonable.
According to 5 U.S.C. § 7121(f), this court reviews the arbitrator's decision "in the same manner" as decisions of the Merit Systems Protection Board. Accordingly, this court may overturn the arbitrator's ruling only if it is arbitrary, capricious, abusive of discretion, illegal, procedurally deficient, or unsupported by substantial evidence. 5 U.S.C. § 7703(c) (1988). Title 5 obligates the arbitrator to sustain NASA's removal decision if supported by a preponderance of the evidence. 5 U.S.C. ...