Today we present Part 2 of our five-part lesson as to the value of unions in today’s world. We’ll begin today where we left off, during Day One of the New York 12 Arbitration Hearing:
Continuation of Our Game of Clue
Is That Blood on Your Knife, Mrs. Peacock?
Suddenly, FAA HR has gone from ‘controverting’ claims to just making sure the paperwork is in order and sent to the correct people —— all in the span of less than a minute. “Miss Scarlet” did get one fact correct however: By law the DoL makes the final determination as to whether to accept claims, not the Human Resources division of the FAA. For the record, DoL never denied nor even questioned the OWCP of any of the NY 12, including all of the eleven who were the subjects of this particular arbitration hearing.
“Miss Scarlet” then went on to testify how her department “gave advice” as to what charges to invoke against the NY 12, and what penalties were “appropriate.”
Now, recall the difference between ‘omission’ and ‘commission?’ Apparently, HR didn’t get the memo:
“Miss Scarlet”: “Table of Penalties (an appendix of the Conduct and Discipline Order used to determine an appropriate penalty for an offense) is of course a guide. Doesn’t have to be applied distinctly or specifically in each case. You use it as a guide to determine what the appropriate charge is. So you look at the guide and table of penalties, you look at what the employees did, or allegedly did, where it fit into the table of penalties. So in this case, when we looked to determine the charge (notice “Miss Scarlet” just reverted again from giving ‘advice’ to determining the charge), we said the closest thing to a charge, we felt that omission was the appropriate charge in this case because omission is actually what they did. They omitted information on the 8500 form.
“So when you look at the Table of Penalties, you say, ‘Okay, well, omission is not in here (and with good reason, “Miss Scarlet” —— there’s a huge difference between an act of omission versus the crime of commission).’ Well, it’s not in here. But it doesn’t have to be (oh, really… then how does an employee know they broke a rule or regulation?). If you look at the top part, it will say that, ‘This is a guide and deviations can be made from this guide.’ So the closest thing that equates to it is 28, which is forging, falsifying, misstating, or misrepresenting information on government records, documents, claims, etcetera, for oneself or another.’ Okay. That was where it fit in. That was the closest fit.”
“Miss Scarlet” went on to discuss appropriate discipline, which according to the Table of Penalties ranged from a five-day suspension all the way up to termination. Anyone in government service will tell you that disciplinary action is meant to be progressive, meaning if the Table of Penalties ranges from a five-day suspension to termination, then you lean toward the lower end of the penalty range for a first offense. For each of the NY 12, this was a first offense for this charge, and even then the ‘charge’ was shoehorned in to a definition that did not apply. Indeed, to try to justify this outrage, “Miss Scarlet” made the point that other instances of falsifications of Form 8500-8 resulted in terminations, even though all the FAA had proven was an omission of data… data already in the hands of the person whom the Agency claimed most needed that information.
Then came a rather curious exchange, one that helped blow apart “Miss Scarlet”’s contention that ‘omission’ equals ‘falsification.’ The exchange was between the arbitrator, Mr. Ira Jaffe, and the representative from the Agency’s Office of Chief Counsel, Attorney Elizabeth Head. Jaffe is asking about the package of supporting case law submitted by Human Resources to the determining official,
Mr. Jaffe: “It looks like these are a series of documents, some of them are proposal documents, some of them are decision documents. Two of them include MSPB (Merit Systems Protection Board) determinations that would have been the decisions in action and then there are some indictment documents as well, and they’re from various regions around the country that were identified at least by code in the upper right-hand corner. Some of the names are redacted. And on at least a quick glance, it looked like they were all falsifications of one type or another in the charges, right?”
Ms. Head: “Of one type or another.”
Mr. Jaffe: “And they were sometimes the exclusive charge and sometimes one of several charges?”
Ms. Head: “That’s correct.”
Mr. Jaffe: “Was I correct in at least the quick skim that there are no omission cases there?”
Ms. Head: “There are no omission cases.”
Ms.Head has just told the arbitrator that Human Resources, try as they might, could not find a single case in which an omission on Form 8500-8 resulted in federal prosecution, in termination from federal employment, or even in disciplinary action of any kind. The only cases they could find to justify such action dealt with deliberate falsifications and outright frauds.
Shortly after this exchange Attorney William Osborne, Jr., representing NATCA, began cross examining “Miss Scarlet”. Under intense questioning, “Miss Scarlet” stated repeatedly and under oath that in her opinion an unintentional omission on Form 8500-8 was the legal equivalent of deliberate falsification of information. One can rightly wonder at this point if “Miss Scarlet” has ever forgotten (unintentionally omitted) even the slightest detail on anything from a juror questionnaire to a loan application to her filings over the years of IRS Form 1040 and associated schedules and worksheets. If she hasn’t, she is indeed in rare company. I know I certainly can’t make such a claim, and I doubt I know anyone who can. If on the other hand she has ever forgotten an item in such cases, then she is by her own standards unfit for federal service.
As questioning continued, “Miss Scarlet” was then forced to concede that the Regional Flight Surgeon concluded that the omissions did not materially affect his certifications of the controllers’ annual flight physicals. He still would have qualified all eleven for another year on the boards regardless if that little box had been checked on their Forms 8500-8. So now “Miss Scarlet” was left to claim a crime with no discernable motive, no victim, and no impact to the safety and security to the National Airspace System. It was a totally ludicrous argument, and the silliness of it was not lost on the arbitrator.
As her testimony came toward an end, Osborne asked “Miss Scarlet”: “I think I understand your testimony to be that you were really struck by the lack of — what is the term — remorse from these air traffic controllers; is that right?”
“Miss Scarlet”: “Yes.”
Osborne: “If they only apologized you would feel a lot different about it, where the case might have come out differently?”
“Miss Scarlet”: “I think that would have weighed into “Col. Mustard”’s (Air Traffic Manager, New York TRACON) decision.”
Osborne: “Would it have weighed into your recommendation to “Col. Mustard”?”
“Miss Scarlet”: “It would have weighed into my recommendation.”
At this point Osborne hands “Miss Scarlet” the ROI for one of the eleven controllers: “This is from “Victim One”’s files. Take a look at it. I would like you to read to the arbitrator the last sentence on the second page. This is a record you would have reviewed, “Victim One”’s reply to the proposed removal.”
“Miss Scarlet”: “I apologize for any inconvenience this may have caused.”
Osborne: “And the preceding sentence, if it’s a different sentence, ‘In no way did I ever intend to deceive the government.’ Is this something you didn’t notice when you —”
“Miss Scarlet”: “I did notice this, yes.”
Osborne: “So, is this an insufficient apology from your point of view?”
“Miss Scarlet”: “It doesn’t say that he actually recognizes the fact that he should have put it on the form.”
Osborne: “So, it’s not the lack of apology. It’s the lack of apology of the type you think is appropriate that’s important. Is that right?”
“Miss Scarlet”: “It is an apology. It was part of the ROI. I don’t recall if he said this was part of his reply to the proposed removal action or not. But it was part of the record, so it was something “Col. Mustard” also had reviewed.”
Osborne: “And did you, too?”
“Miss Scarlet”: “Yes I did. But I gave advice to “Col. Mustard”. He made the ultimate decision.”
So, “Miss Scarlet” was looking for contrition, but didn’t particularly like the contrition she saw. It didn’t meet her demanding standards. She thus recommended this one controller be fired, then backed away from that recommendation by downplaying her role and fingering the ‘deciding official.’ “Miss Scarlet” desperately needed to get her stories straight.
Not mentioned in the testimony is yet another interesting little fact: According to my source on the NY 12, “Victim Two” also apologized — in writing — at least twice. “Miss Scarlet” was just as adamant on his firing as she had been with “Victim One”’s. So much for the ‘contrition factor’ that would have theoretically saved these individuals from The Wrath of “Miss Scarlet”. This, too, appears to have been an under-oath fairy tale.
Osborne: “So it’s “Col. Mustard” I should be asking these questions to all along, not you and the General Counsel in Washington; is that what you’re saying?”
“Miss Scarlet”: ““Col. Mustard” made the decision based on advice and assistance from us. But management always makes decisions on disciplinary actions, not HR or G.C. (General Counsel).”
What a retreat. All of a sudden “Miss Scarlet” was a totally innocent party who just kind of gave some advice and assistance. She certainly isn’t to blame for these eleven firings. Her testimony suddenly began to sound remarkably like a Nuremburg Defense: “I didn’t actually turn the gas valve; I just told Sergeant Schultz that’s what he should do. I certainly can’t be held responsible because Sergeant Schultz actually listened to me.” Would “Col. Mustard”’s testimony be that other famous Nuremburg Defense? Would he claim, “I was only following orders?” We shall see later. At any rate, throughout the testimony it was quite evident that HR played a much larger role in determining the disciplinary action eventually ‘decided’ by the one man who was supposed to make that determination — the ATM of the New York TRACON.
If the Agency had any case at all against any of these eleven, they stumbled upon it with the following witness. Next up was New York TRACON’s Support Manager for Quality Assurance, “Rusty”. In his testimony, “Rusty” related his investigation into a claimed near miss by one of the eleven controllers, a controller who then used this alleged near miss in another OWCP claim unrelated to the Forms 8500-8 accusations. “Rusty” testified that radar data and voice recordings indicated no such near miss took place.
There’s just one problem: The controller in question withdrew this particular OWCP claim before it advanced beyond the facility level. More on this subject tomorrow.
So ended that day’s testimony. Two days later the arbitration hearing reconvened. The first witness duly sworn that day, December 7, 2005, was the ‘deciding official,’ none other than “Col. Mustard”.
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Tomorrow — “The Plot Thickens”
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