Unions Are Obsolete? The New York 12 — Part 3


Today is the third installment of but one example why we still need labor unions in this country — in both public and private sector.  As before we shall continue with our Game of Clue to uncover who really should have been terminated from federal government service and probably prosecuted for perjury:

Our Game of Clue Continues:
Day 2 — Colonel Mustard in the Conservatory
With a Suspicious-Looking Candlestick

“Col. Mustard”’s testimony starts out pretty straight-forward.  He had reviewed the ROIs and accompanying documentation and evidence, including the Forms 8500-8, Ca-1, CA-16, and CA-17 (DoL Duty Status Report), psychologists’ reports, medical bills, and health insurance claims.  “Col. Mustard” did not have access to medical records, including the Regional Flight Surgeon’s determination that any omissions of Item M in Section 18 of the submitted Forms 8500-8 were immaterial to his decision to certify the controllers as fit for duty (a remarkable omission in and of itself).

In making his disciplinary decisions “Col. Mustard” relied upon advice from Labor Relations (LR), Human Resources (HR), and also spoke to his superiors, whom he listed as “JM” (first-level supervisor) and “Mr. Green” (second-level).  He also admitted that his letters of proposed termination were not even authored by him, but rather were the result of collaboration between LR and HR personnel.  Despite all this extraordinary help, “Col. Mustard” maintained that he was the sole decision-making official.

“Col. Mustard” also relayed how he rescinded the original letter of proposed termination in one case, only to send out another with an additional charge against the controller who falsely claimed the near-miss event.  Perhaps not coincidentally, this controller claimed the near-miss event occurred on the same day he received his initial letter of proposed termination.  A bit of payback on the part of the targeted controller, perhaps?  Only that controller knows what was running through his mind when he made that claim, but the timing is very suspect nevertheless.

Under questioning from Ms. Head, “Col. Mustard” continued to hone in on this one particular controller.  He had a long history of filing Forms CA-1 and making OWCP claims.  It was also revealed that this one controller had a previous three-day suspension without pay, and that during an arbitration hearing on that suspension the controller had been, according to the arbitrator, “… not honest and forthcoming.”  “Col. Mustard” testified that this controller had, in “Col. Mustard”’s opinion, lied during that arbitration hearing, and that event from six years prior also weighed in “Col. Mustard”’s decision to terminate this one controller.

Another of the eleven had a second charge for failing to cooperate with FAA Security.  This controller, when asked by the investigator to, “… write a statement and start by identifying himself, his title, his grade level, facility and supervisory, etcetera,” allegedly replied, “You know my name is Delaney and you know the FAA have all the other information.  You write it down.”

Upon a second demand for compliance from the FAA Security investigator, the controller, “… printed one letter and went to the middle of the page and printed his statement.  The subject wrote, ‘I thought the CA-17 Form was adequate notice to the FAA since the above statement is correct and that is what is shown in medical 6-27-01 and 6-25-03.’”

So, apparently in addition to forgetting to check a box reporting previously reported medical conditions, smarting off to an FAA Security Investigator is also grounds for termination on a first offense.

During cross-examination the questioning turned once again to who actually made the decision to terminate the eleven controllers.

Osborne:  “You are saying if “Mr. Green” had said, ‘I don’t want to you [sic] terminate these air traffic controllers’ and you had wanted to do it anyway, you would have gone right ahead and done it?”

“Col. Mustard”:  “That’s not what I am saying.  I am saying it is my decision.”

Osborne:  “My question is, if he had disagreed with your decision, you would not have taken it?”

“Col. Mustard”:  “He did not disagree with my decision.”

Osborne:  “That was not my question.  My question was, had he disagreed with your decision, you would not have taken it, would you?”

“Col. Mustard”:  “It is my decision.”

Osborne:  “Are you having trouble understanding my question?  Could I try it again?  If he told you, ‘I don’t want you to fire the Air Traffic Controllers,’ you wouldn’t have fired them, would you?”

“Col. Mustard”:  “I made my decision.  He did not tell me that, so I cannot answer the question.”

At this point Arbitrator Jaffe cuts in:  “Are you answering that you don’t know what you would have done if he told you that?”

“Col. Mustard”:  “What I’m answering is that he did not tell me that.”

Jaffe:  “I understand that, but counsel is posing a question to you that admittedly is hypothetical in nature, but he is entitled to do that; It is cross-examination.  You need to answer it if you can, “Col. Mustard”.  It is that simple.”

“Col. Mustard”:  “The only way that I can answer that is that it is my decision.”

Jaffe:   “You are not answering his question, with all due respect.  He said if “Mr. Green” had told you not to terminate, would you have gone ahead and done something other than removal?  That is either, ‘Yes, I would have’; ‘No, I would have done what I did anyway’; or ‘I don’t know what I would have done.’  That covers the logical universe of answers.”

“Col. Mustard”:  “Yes, I would have; no, I wouldn’t have—”

Jaffe:  “Or you don’t know what you would have done.  That covers, I think, all the possibilities.”

“Col. Mustard”:  “I don’t know what I would have done.”

Osborne:  “And you spoke to “Mr. Green” before you made the decision to issue the proposed letters, did you not?”

“Col. Mustard”:  “Yes, I did.”

Osborne:  “Who else did you talk to in Washington?”

“Col. Mustard”:  “I spoke to—”

Osborne:  ““Miss Scarlet”?”

“Col. Mustard”:  ““Miss Scarlet” — I did have some discussion with “Miss Scarlet” at one point.”

After a little back-and-forth on what he did or did not discuss with “Miss Scarlet”, “Col. Mustard” suddenly reversed himself and said that he did not discuss the case with her before sending out termination letters.  Later on, “Col. Mustard” admits under questioning that all eleven controllers had excellent on-the-job records.  He did not disagree when Osborne referred to them as, “exceptional,” and, “commendable,” and agreed that he, “… had no concerns about whether they were safe for the job.”  This is an odd admission, since the letters of termination cite a lack of confidence in them because they supposedly falsified information during their annual physicals.  “Col. Mustard” also admitted that he knew his action to terminate them would cause hardship.  Nice boss — real hero to the working controller who already has enough stress on the job to manage without having to worry about someone as vindictive and petty as this.

Now watch as “Col. Mustard” implodes on being, “The deciding official.”

Osborne:  “One of these gentlemen is a fellow by the name of “Victim Two”.  You know “Victim Two”, don’t you?”

“Col. Mustard”:  “Yes.  Not personally, but I know of him.”

Osborne:  “You know of him?”

“Col. Mustard”:  “Yes.”

Osborne:  “You know he has a good work record?”

“Col. Mustard”:  “Yes.”

Osborne:  “Often Commended.  You actually personally advised him that he was being terminated at the workplace, did you not?”

“Col. Mustard”:  “Well, I wasn’t at the workplace, but I did advise him.”

Osborne:  “Where was it?  Did you have a discussion with him at the time?”

“Col. Mustard”:  “No.”

Osborne:  “Didn’t he — maybe this is when you told him about the proposed removal.  When you told him about the proposed removal, you told him personally?”

“Col. Mustard”:  “Yes.”

Osborne:  “Early in the morning, coming off the mid?”

“Col. Mustard”:  “I don’t remember really.”  (Amazingly convenient memory — recalls what was told to “Victim Two”, kind of, but not where or when.  I’m sure I would remember such a stressful and potentially explosive confrontation, but then I’m saddled with a conscience.)

Osborne:  “Did he ask you at the time, ‘Why are you telling me now?’”

“Col. Mustard”:  “He could have.  I don’t remember.”

Osborne:  “Did you tell him that you had just yourself found out the evening before?”

“Col. Mustard”:  “Found out the evening before?”

Osborne:  “That he was going to be issued a letter of proposed removal; that you didn’t know yourself and hadn’t found out until late the evening before.  Did you tell Mr. “Victim Two” that?”

“Col. Mustard”:  “I don’t believe so.”

(A quick note from the author, here:  How can “Col. Mustard” possibly not know this with absolute certainty?  If as he claims he was the sole determining official, then the answer is an unqualified, “No.”  If on the other hand he received his instructions from above, then the answer becomes, “Yes,” but at this point he cannot admit that because to do so would show that he — and others such as “Miss Scarlet” and “Mr. Green” — potentially lied under oath, and that they did so as part of a vast conspiracy involving FAA ATO, HR, and LR.  Clearly this is a critical turning point in the arbitration case.  From here on it’s all downhill for the Agency.)

Osborne:  “Are you saying you deny telling him, or you are not sure?”

“Col. Mustard”:  “I don’t remember saying that.”

Osborne:  “Do you deny telling him that?  In legal mumbo-jumbo, there is two possible answers.  One is, ‘I never said that, and I am sure of it,’ and the other is, ‘I am not sure what I told him.’”

“Col. Mustard”:  “I am not sure what I told him.  I do not remember saying that.”

Osborne:  “The night before Mr. “Victim Two” received his letter of proposed removal, who told you that he was going to receive it?”

Ms. Head:  “Sorry….”

“Col. Mustard”:  “Proposed removal?”

Ms. Head:  “I don’t understand.”  (Of course, you do, Ms. Head.  It appears that your client just got caught deliberately falsifying testimony, as opposed to merely omitting something.  Does that ring a bell?)

Osborne:  “I will withdraw the question.  It wasn’t terribly well phrased.  Let me withdraw the question.”

Osborne:  “It was your decision to charge Mr. Maney with falsification, wasn’t it, among other things?”

“Col. Mustard”:  “Yes.”  (Can’t back out now)

Osborne:  “And it was your decision to charge these eleven with omission?”

“Col. Mustard”:  “Correct.”

Osborne:  “And you understand that omission and falsification are two different things, don’t you?”

“Col. Mustard”:  “Yes.”  (Quick.  Would somebody please send the memo to “Miss Scarlet” over at Human Resources?)

Osborne:  “As far as you know, no one has ever been — no controller has ever been charged with an omission as a disciplinary matter, have they, prior to this case?”

“Col. Mustard”:  “Not as far as I know.”

Osborne:  “As far as you know, no controller has ever been told that they could be subject to discipline for an omission prior to this case?”

“Col. Mustard”:  “Not that I know of.”

Osborne:  “And certainly no controller has ever been terminated for an omission?”

“Col. Mustard”:  “Not that I know of.”

Osborne:  “And it didn’t matter to you if there was an omission on one medical condition or four, isn’t that right?”

“Col. Mustard”:  “That’s correct.”

Osborne:  “A single omission was sufficient for you?”

“Col. Mustard”:  “That is correct.”

Cross-examination continued, with “Col. Mustard” admitting that two other controllers appeared to have omitted information from their Forms 8500-8, yet no disciplinary action was taken against them and both still worked at New York TRACON.  He also claimed to not remember telling all remaining controllers working for him that the fired eleven were lucky because they could have faced federal indictment, even though he knew that federal prosecutors refused the case.  Osborne wasn’t about to let that one go.

Osborne:  “But if I called a witness to testify under oath, as you are under oath, would you say that witness is lying, or would you just say you are just not sure?”

“Col. Mustard”:  “I don’t want to call anybody a liar.  Everybody has their perception of what they heard.”  (Oh, really?  Careful.  You allegedly made that remark to all controllers during what is referred to as ‘All-Hands Meetings.’  Care to guess how many controllers would have stepped up under oath to testify on that one?)

Questioning eventually turned toward progressive discipline and the fact that “Col. Mustard” had chosen the thermonuclear option against all eleven even though many had no previous history of disciplinary action; that he could not find ‘omission’ in the Table of Penalties; that he instead charged all eleven with deliberate falsification; that omission is less serious than falsification; that falsification implies actual intent; and that nowhere in any documentation had “Col. Mustard” ever alleged the intent to falsify anything.

* * *
Tomorrow — “Culture Change”
* * *

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