U.S. Office of Personnel Management - Ensuring the Federal Government has an effective civilian workforce

Noel Costa v. Department of Defense, MSPB Docket No. CB-7121-00-0018-V-1, May 1, 2001.

The scope of the Board's review of arbitrators' awards is limited; the awards of arbitrators are entitled to deference. The Board will modify or set aside an arbitrator's award only when the arbitrator has erred as a matter of law in interpreting civil service law, rule, or regulation. Absent legal error, the Board cannot substitute its conclusions for those of the arbitrator, even if it would disagree with the arbitrator's decision. Noel Costa v. Department of Defense, MSPB CB-7121-00-0018-V-1, May 1, 2001.

The agency proposed to remove the appellant from his position based on charges that the appellant made inappropriate comments to two female students about their sex lives and offered to instruct one in the techniques of masturbation, that he called female students "babe" and "sweetheart," and that he rubbed his body against and touched the breasts of one girl, and touched the breasts of another. After considering the appellant's reply in which he denied the charges, the deciding official found them sustained, but imposed a 45-day suspension in lieu of removal. The appellant elected to grieve his suspension through the agency's negotiated grievance procedure, and the matter was eventually submitted to arbitration. The arbitrator found the charges sustained, the appellant's affirmative defenses not established, and the penalty reasonable. The appellant filed a request for review of the arbitrator's decision with the full Board.

In his request for review, the appellant raised a claim that the agency's action was the result of discrimination based on his sex and national origin. He challenged the arbitrator's finding that he was not denied due process with regard to the agency having destroyed the statements of two of the complaining witnesses. Also he requested at the hearing that the arbitrator recuse himself on the ground that he lacked impartiality.

In reviewing the evidence presented by both the agency and the appellant in this case, the Board found that the appellant failed to show that the arbitrator erred in interpreting civil service law, rule, or regulation as to claims of due process denials, harmful error, discrimination and the merits. The appellants also alleged that, during the first 3 days of the hearing, the arbitrator conducted ex parte communications with agency counsel, officials, and witnesses, and accepted rides from, and lunched with, management officials, without his knowledge or consent. The appellant notes that he raised this issue by filing a motion that the arbitrator recuse himself, but the arbitrator denied the motion. According to the Board, ex parte communications are those made to an interested party to the proceedings and are only prohibited if they involve the merits of the case or violate rules requiring submissions to be in writing. In denying the appellant's motion for recusal, the arbitrator acknowledged having the conversations and accepting the rides, but denied engaging in any discussion of the case. The Board concluded that the appellant failed to establish that the arbitrator's rejection of his claim in this regard amounted to an error on his part in interpreting civil service law, rule, or regulation.

Finally, the Board has held that arbitrators are entitled to the same presumption of honesty and integrity that administrative judges enjoy. The appellant failed to show that the arbitrator's actions prejudiced his substantive rights, and, as such, his allegations did not overcome the presumption of honesty to which the arbitrator is entitled. Accordingly the Board sustained the arbitrator's award.

This case offers a good reminder that in exercising its jurisdiction to review arbitration awards involving allegations of discrimination (5 U.S.C. § 7121(d)), the Board will give considerable deference to the findings of the arbitrator, even more than it will give to the findings of its own administrative judges.