Unions Are Obsolete? The New York 12 — Part 1


Over the course of this week I’ll be doing something a bit different.  Please bear with me, but this is something about which I have grown very passionate, and with good reason as you’re about to see over the next five days.

That’s right.  This week there will be five posts rather than the normal three, and none of them will deal with the usual.  Nevertheless, I hope you’ll stick with me through to the end.  It’s that important.  We’ll get back to having fun next week.  I promise.

This Labor Day week I intend to answer with an excerpt from an unpublished book the silly and misguided charge that unions in general (and public sector unions specifically) are either obsolete of have no true need in today’s world.

Prepare to be positively outraged as you read about a very specific federal government abuse that occurred in just one agency.  Once you read about the horrendous abuses heaped on mission-critical federal employees, you’ll never again look at public sector unions as unnecessary or a burden to the taxpayer.  Thankfully the conditions reported upon this week no longer occur in today’s Federal Aviation Administration; but given another perfect storm of a labor-hostile administration, a compliant Congress disinclined toward oversight of one of their own in the White House, and an unqualified and antagonistic political hack placed in charge of this safety-critical agency, and all that could change again in a heartbeat.

This article has to do with the abuses imposed on this nation’s air traffic controller workforce under the direction of former FAA Administrator Marion C. Blakey.  If it reads like a Perry Mason story, that’s because it takes place in a courtroom of sorts.  The testimony is factual and under oath, and as with Perry Mason the real villains crumble at the end to implicate both themselves and their conspiracy.  But unlike Dragnet, names in this sordid tale have been changed to protect (unfortunately) the guilty in addition to the innocent.

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Before we continue, let me inform the reader what the Federal Aviation Agency does whenever an air traffic controller is caught lying to an FAA Security Investigator during the course of an investigation, and bear in mind that during such investigations that the controller is not placed under oath.  Routinely in such cases, the Agency declares that the employee (controller) has lost the trust of the Agency and the flying public for demonstrated dishonesty.  That employee is then more often than not terminated from government service without recourse.  Surely, one would surmise, lying under oath is even more serious an offense and agency managers should be held to a higher standard, right?

Wrong.

And lest anyone labor under the impression that it’s all about the money, consider what the Agency began doing on the disciplinary front.  Collectively, they are known to controllers throughout the country as ‘The New York 12’ even though one of them had been reassigned to Phoenix TRACON from New York TRACON when he received word that he, along with eleven others, was to be fired.

Controllers are of course under a tremendous amount of pressure to do everything correctly, every day, 100% of the time.  No exceptions.  When they don’t — when two airplanes get too close together for instance — it is called an Operational Error (or at least it used to be).  If a controller allows an aircraft under his control to enter another controller’s airspace without approval, that is known as an Operational Deviation.  Controllers call them OEs and ODs for short, or more euphemistically as, “Having a Deal.”  I had one ‘deal’ in my career, an Operational Deviation, and I can personally testify to the tremendous stress such an incident causes.  Most notably, it shakes your confidence, and confidence in one’s ability is a controller’s most important asset.  It’s what allows him or her to plug into position day in and day out, confident in their ability to protect the lives aboard the aircraft for which they are responsible.

But Operational Errors and Operational Deviations are not the only shocks to the psyche a controller faces.  An aircraft incident or accident, especially one resulting in loss of life, is very traumatic even when the controller had nothing to do with that loss.  Even a particularly bad session on position, say running heavy traffic around particularly hazardous weather for instance or even merely witnessing another controller having a particularly close near miss, can be sufficiently unnerving so as to cause a controller to question his or her own abilities.  Indeed, after very traumatic situations, controllers can and do suffer from everything from anxiety all the way up to Post Traumatic Stress Disorder (PTSD).  Not all controllers, of course.  Everyone handles stress differently.  But such situations can and do occur.

A controller having a crisis in confidence, or even experiencing a bout of nerves while on position may need to take some time off to put things back into perspective, regain one’s confidence, or just get away from the job for a while.  When this occurs, it is not unheard of for the controller to file a CA-1 indicating an on-the-job related injury, a CA-16 requesting authorization for examination and treatment of said injury, and an OWCP (Office of Workers’ Compensation Programs) claim for time off not charged to the controller’s accumulated annual or sick leave, to reimburse the controller for medical treatments (mental health professionals in this case) not covered by insurance, and other expenses.  Are such claims ever filed frivolously?  Of course.  There will always be someone somewhere who abuses the system.  However such instances are rare and there are ways to handle such bogus claims and avenues to discipline any controller abusing system… if management is doing its job.

Forms CA-1 (injury) and CA-16 (examination and treatment) claims for mental stress become a part of that controller’s medical file.  OWCP (reimbursement) claims are the purview of the Department of Labor, but they are reviewed by the FAA’s Human Resources division.  And since in such claims the controller is basically telling the FAA that they are mentally unprepared for duty, the Regional FAA Flight Surgeon must review each case before a controller is allowed to return to controlling traffic.  This same Regional Flight Surgeon also reviews the annual physicals all controllers are required to take during the month of their birthday.

During these routine annual physicals, the controller is required to fill out a Form 8500-8 on which they must report all medical treatments received during the last three years, the healthcare professionals who supplied treatments, and contact information for those healthcare professionals.  If there is no change from previously reported information, the controller is given the option of placing in remarks the words, “Previously reported.  No changes.”  Makes sense.  Why report all treatments for the previous three years on an annual form on which treatments have already been noted in preceding physicals or through other channels?  These forms are also reviewed by the Regional Flight Surgeon as part of the controller’s annual physical results.

Additionally on these forms, in Section 18, are a vast series of checkboxes asking for known medical conditions past and present (Have you ever experienced…) such as dizziness, high blood pressure, etc.  Item M of Section 18 is for, “Mental disorders of any sort: Depression, anxiety, etc.”  That Item M is what got these controllers in trouble.  It was left unchecked.  But, then, Item M is pretty vague if not entirely subjective.  How does someone not in the mental health field know if their treatment meets the medical definition of, “Depression, anxiety, etc.,” unless they are specifically told that by their mental health practitioner?  And besides, once again, the Regional Flight Surgeon already had this information.  The NY 12 were, in effect, being persecuted for failing to check one box out of many on a highly complex, small-print form with poor instructions, while sitting in a doctor’s office waiting to be called in for their physical to begin, not knowing how much time they had left to complete the form.  More than once I have had my Form 8500-8 kicked back to me by my Regional Flight Surgeon because I omitted something (for instance the box asking if you have ever been arrested for DUI is very easy to miss; I’ve inadvertently skipped that one at least twice in my career—And, no, I’ve never had to report one on my form).  It is not a rare occurrence among controllers, and almost never is it done intentionally.

So, annual physicals, the accompanying Forms 8500-8, Forms CA-1, Forms CA-16, and OWCP claims are all reviewed by the Flight Surgeon having jurisdiction for that particular region.  In the case of annual physicals and Forms 8500-8, the Flight Surgeon reviews these before renewing a controller’s medical certificate for another year.  With OWCPs, the Flight Surgeon reviews treatments and prognoses before declaring a controller mentally fit to return to duty.

In the case of the NY 12, these controllers had complied with all reporting requirements save two:  They failed to check the box on Item M of Section 18, and since they knew that the Regional Flight Surgeon already had in his possession their Forms CA-1 and CA-16, they considered repeating the same information on their annual Form 8500-8 an unnecessary redundancy.  “Previously reported.  No changes.”

The FAA disagreed, but not for the reason you think.  If it were merely an omission, the Regional Flight Surgeon would just kick the form back for correction as they have me on several occasions.  This was diabolically different.

NATCA arbitration specialists and top leadership at the time suspected that Agency officials, in particular ATO VP for Terminal Services “Mr. Green” and FAA Human Resources run by “Mrs. Peacock,” were looking to curtail what they considered frivolous Forms CA-1 and CA-16, OWCP claims, and the resulting paid time off from work.  FAA Management could have gone to the trouble of documenting alleged abuses and taken corrective disciplinary action in individual cases, but that sounded too much like work.  So instead they chose to go for the thermonuclear option as a first-response to a perceived problem:  The Agency forwarded these alleged omissions for federal prosecution, claiming specifically that the controllers had knowingly falsified their Forms 8500-8.  The penalty for falsifying a Form 8500-8 is five years in prison, a $250,000 fine, or both.  When federal prosecutors wisely declined prosecution because the Regional Flight Surgeon was in fact aware of the information through other means (the Forms CA-1, CA-16, and other documentation contained in the respective medical files), the Agency began termination procedures.  In due course all twelve were fired from government service, some within a couple of years of retirement eligibility.

The primary reason for this drastic action came out in testimony before an arbitrator when NATCA filed appeals on behalf of the NY 12 who by this time had been out on the street for the better part of half a year, struggling to make mortgages, put food on the table, and even keep their families afloat and together until they had their day in court.  It was termed, ‘Culture change.’  FAA Human Resources colluded with “Mr. Green” to ‘change the culture’ within the controller ranks to inhibit controllers from filing future OWCP claims.  The trouble is that no one bothered to tell controllers that such a culture change had been implemented, and that they faced everything from potential federal felony prosecution to termination of their livelihoods.  It was all done in secrecy.  Why?  As then NATCA President John Carr noted, once again the Agency was out to break the union.  In this case, Agency officials targeted a select group of employees and attempted to destroy them publicly, personally, and financially.  If they succeeded, if NATCA had been unable to prevent or overturn these terminations, top managers within the Agency reasoned that NATCA would be perceived a toothless organization upon which the general membership was wasting union dues money.

The trouble is that somebody had to lie under oath to carry out this scheme.  No arbitrator is going to stand by and allow the Agency to arbitrarily change the rules, fail to notify its employees of those rule changes, and then fire employees without warning, all in the name of ‘Culture Change.’  Additionally for this conspiracy to work, it becomes important to convince the arbitrator that the decision as to what discipline to mete out was made at the lowest possible level — in this case the Air Traffic Manager (ATM) for New York TRACON.  If the decision goes much higher, especially if it reaches all the way to FAA Headquarters Washington, the fairy tale of motivation begins to unravel.

But do arbitration witnesses testify under oath?  I was originally unaware that they do.  Indeed, I was advised by one of NATCA’s arbitration specialists that they did not.  But it turns out that witnesses are placed under oath, and that arbitration hearings have the full weight and substance of an administrative court, with the arbitrator having the power of an administrative judge.  I discovered this while I was corresponding with one of the NY 12 with whom I was in contact for the research of this book.  He indicated that he had attempted to have at least one high-level FAA manager charged with perjury in the case.  Stunned at this revelation, I asked him for documentation that witnesses were in fact placed under oath during the proceedings.  As proof he sent to me transcripts for three days of the arbitration hearings, which clearly show that witnesses gave testimony only, “… after having been first duly sworn….”

A Game of Clue
Is That Blood on Your Knife, Mrs. Peacock?

Now let us now play a little game of Clue, studying the arbitration transcripts supplied to me by my NY 12 contact, to see if we can determine who told the truth and, most importantly, who potentially committed a felony by lying under oath.  The following paragraphs contain actual information and testimony from the arbitration hearing for the eleven New York TRACON employees terminated.  Explanations and author’s notes are in parenthesis.  The arbitration for the twelfth former New York employee, terminated from Phoenix TRACON, was handled separately.

First up is “DH,” Special Agent, Inspector General’s Office, Department of Transportation (DoT IG).  He was duly sworn on December 5, 2005.  His testimony shows that the decision to investigate the NY 12 was made in July of 2002, and that originally there were twenty individuals under investigation.  The initial investigation was for questionable, possibly fraudulent OWCP claims, but that evolved over time to a narrowing to fourteen individuals and a claim that they had falsified their Forms 8500-8.  “DH”’s reports on the fourteen were sent back to the FAA over a period of several months, between March and September of 2004.

Three final notes on “DH”’s final ROIs (Reports of Investigation):

First, the original number of controllers under investigation numbered twenty.  Six were deleted for unspecified reasons, including interestingly two members qualifying for protected minority status who would have had ready access to EEO (Equal Employment Opportunity) avenues for potential discrimination complaints if charged.  One of the six, and the one who arguably had the worst record of abusing OWCP claims, had become a supervisor and was thus now a member of the management team.  Remember, management don’t eat their own unless you violate one of the aforementioned cardinal rules.  These omissions brought the number down to fourteen.

Second, out of those fourteen, two of the controllers in question had since left the agency — one through retirement and one through resignation.  That is how the fourteen became twelve.

Finally, Attachment 19 of “DH”’s reports specifically stated that any action taken should not include federal prosecution, but rather should be limited to administrative punishment.  Someone in his office made this recommendation to him based upon what he termed mitigating circumstances that did not warrant criminal prosecution.  I’m just guessing here, but I’m willing to bet that Security knew there is a huge difference between an act of omission (missing a checkbox) and an act of commission (intentionally falsifying a document), and that absent proof of the later one cannot get a conviction for falsification.  At any rate as previously noted, several people within the ATO and HR weren’t listening to that recommendation.  These people were going for throats like a vampire just coming off a low-sodium diet.

On December 5, 2005, “Mr. Green” was duly sworn, and then under oath testified repeatedly that, although he had actively reviewed the cases against the NY 12 as they progressed and had access to the ROIs and other evidence, and even though he discussed the case with, “HR folks,” he had nothing to do with the final disciplinary determinations.

For someone who had no direct input on disciplinary action, “Mr. Green” was unusually involved in reviewing all the evidence and discussing the case with various entities, including Human Resources.  But without contradictory testimony, any suppositions based upon this observation are worthless.  Let us continue.

Next up, after being duly sworn that day in early December, was “Miss Scarlet”, Executive Director, Human Resources Management Programs Policies.  From her testimony the plot thickens.

“Miss Scarlet”:  “It’s a lot of attention on Workmen’s Comp.  It’s actually Flight Plan (agency stated) goals for cost avoidance.  Trying to bring people back to work quicker, trying to make sure claims are controverted, if people are filing on fraudulent claims, make sure we controvert those.”

Later on she was asked, “Is that function, the OWCP function, is that within the FAA’s jurisdiction or is that another government agency?”

“Miss Scarlet” replied, “It’s the Department of Labor, actually, has Office of Workers’ Compensation.  So they, for instance, when someone files a Workers’ Comp form, we look at it, see if it’s been controverted, make sure all the information is on there.  The supervisor would also be doing the look-see to make sure all the information is included, and then it’s forwarded to the Department of Labor, Workers’ Comp program, for a decision on whether the claim can be accepted or not.”

“Miss Scarlet” has in those words shown that the Agency’s first reaction to an OWCP is to ‘controvert,’ or in other words oppose and dispute, any and all OWCP claims before they are transmitted to the Department of Labor (DoL), the agency that actually has jurisdiction in the matter.  The problems with this are manifold.  Noncontrollers within the Agency are making determinations as to whether a controller is mentally fit for duty, something for which they are not trained and for which they have no personal background or experience.  They are, in essence, practicing medicine (in this case mental health) without a license.  Agency personnel are doing this even though it is beyond their jurisdiction.  Federal guidelines call for disputing claims only if there is evidence of fraud, which in ten of these eleven cases was never alleged nor found.  Also, federal law prohibits an agency from doing anything that inhibits or otherwise intimidates someone from filing a claim, which is clearly the intent when cases are routinely disputed at the Agency level without cause.  Clearly, the FAA’s Human Resources (HR) Department under “Mrs. Peacock” did not care about this violation of the law.

(“Miss Scarlet” then goes on to backstroke on her answer.)

“So we are more than just ‘passers of paper’ but we want to make sure that the records are clear and that they go to the right parties.  But they (DoL) make the final decisions as far as whether the claims are accepted or not, and whether doctors are paid and how long someone’s disability or actually how long somebody is out for.”

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Tomorrow — “Controverting Claims”
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