Unions Are Obsolete? The New York 12 — Part 4

Outraged yet?  You should be.  Tomorrow concludes our five-part series.  In the meantime, here is Part 4:

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In the Library with
Miss Scarlett and Her Smoking Gun

Late that afternoon came the testimony of “Mrs. White”, National Employee Relations Program Manager.  It is through her testimony we first hear of a ‘Culture Change’ within the Agency — a change that was kept secret from those who would be on the receiving end of any resulting disciplinary action until such time as the Agency could identify an appropriate lamb to stake out and sacrifice.  The Agency struck pay dirt; they found twelve of them.

Elizabeth Head started off the questioning for the FAA, asking about her part in “Col. Mustard”’s decision to terminate these eleven controllers.

Head:  “What kind of role did you play?”

“Mrs. White”:  “Explained to him that we had some eleven reports of investigation, ROIs, that dealt with controllers leaving information off the 8500 forms, predominately dealing with failure to report doctors visits — well, all of them were around Workers’ Comp-related claims, and one of them dealt with leaving off a DWI.  One or two DWIs; I don’t recall how many.”

(Author’s note:  It was two DWIs.  In investigating this piece of testimony, I uncovered the fact this controller had indeed reported these incidents on previous Forms 8500-8 in the years in which they occurred — 1993 and 1996 respectively.  In either 2000 or 2001 the wording for DWI changed on Form 8500-8 to ask if you had ever incurred a DWI.  So, that year this controller once again responded in the affirmative.  After that he relied upon, “Previously reported.  No change.”  And it was to those subsequent forms that “Mrs. White” was referring.  Thus, her contention that this controller had failed to report these incidents and was attempting to falsify his Forms 8500-8 to hide this information from the agency appears to be a complete and utter fabrication… under oath.)

Head:  “So did you talk to Mr. “Col. Mustard” directly about the issues that you just testified about?”

“Mrs. White”:  “Yes.  I never talked to him one-on-one.  There was usually always somebody from the Eastern Regional Office involved.  It would have varied, you know, like maybe Joe Winkler, Steve Brienza, sometimes Mary Doyle if Steve wasn’t it.  Combinations, sometimes all of them.  No real one-on-one things I can think of other than maybe leaving messages when we were trying to arrange telecons.”

Head:  “Did you have anything to do with the recommendation or the actual charge in this case?”

“Mrs. White”:  “Yes, I did.”

Head:  “Can you tell us what that role was?”

“Mrs. White”:  “It is sort of the history lesson that I go through with a lot of managers when we are faced with dealing with 8500 forms in particular.  It kind of goes back a little of a history lesson, if you will.  Explained to him that back in the 2003 time frame it had come to our attention that there had been an indictment up in the New England Region and then shortly after that there had been two more.  I think the first was in May of ’03.  Then the other two came in September of ’03 and then December of ’03.  And it was during this process that we in HR Headquarters kind of went through a learning process.

“Through our biweekly — actually, we have telecons twice a month with our Labor Employee Relations community throughout the field.  And we inquire from Headquarters, what have you all typically been doing with these kinds of things?  That was when we learned that, much to our chagrin, our counterparts, that they had been viewed upon as pretty insignificant personnel actions.

“We at Headquarters were quite shocked by that.  We dealt with the Air Traffic people.  Now, mind you, that was before the ATO organization was established.  One of the ATX organizations.  I can’t remember what number.  Five-hundred, or something like that.  They also felt that this was pretty egregious behavior and needed to be dealt with on a much stronger basis.

“So from our shop dealing with our LER people and the Air Traffic organization dealing — at least we understood they did — communicate with their 500s, which are the division managers in the regional offices in their traffic, that this was something that was going to be viewed at a much higher level than what it had been.

“In the meantime, the people in New York — sorry — in New England who had been indicted went out on indefinite suspensions.  Then removal actions occurred.  And that is when we started to see sort of the culture of the Agency moving off the dime, if you will, over to dealing with it as the egregious behavior it was believed to be.”

Head:  “What advice did you give to “Col. Mustard”, you specifically?”

“Mrs. White”:  “Again, I went through this history lesson and I told him, you know, that, like I said, we were moving off the dime.  That is not to say that there weren’t still — the word maybe not had completely circulated out there, but what we were recommending out of Headquarters out of Air Traffic was to start removal.  Certainly the employee always got the reply right.  And after consideration of the reply, he may or may not ultimately decide to remove.

“So he agreed that was the position and the direction that the Agency was heading, as far as the attempt to have this culture change, he agreed to do that.  So we proceeded to prepare the letters for him.”

(Translation:  We’re changing the culture to inhibit controllers from filing OWCP claims.  We’re terminating those on whom we can find even the slightest little mistake in their paperwork.  You are going to go along with this new, unpublicized, totally unfair and probably illegal policy, aren’t you, “Col. Mustard”?)

So much for “Col. Mustard” being the ‘deciding official.’  He didn’t even author the termination letters, and he was directly pressured in his ‘decision’ all the way from FAA Headquarters, Washington.  This one piece of testimony is the arbitration winner for NATCA, but we will continue.

Head:  “Did you tell him about the range of penalties that included five days up to termination?”

“Mrs. White”:  “Yes.  We discussed the Table of Penalties as far as five days to removal.  Explained to him that, you know, like a five-day suspension, something more in that range — because everything that would fall into that category would be serious business, but we were looking at somebody submitting a time and attendance sheet for a pay period and not including maybe some leave they had taken or maybe not putting down all the amount of leave they had taken.  Something like that — more in line that, something that — it doesn’t rise to the egregiousness of the 8500 form.”

So, “Mrs. White” testifies, under oath, that deliberately defrauding the U.S. government on pay (theft, intentional falsification of government records, etc.) is somehow less an offense than inadvertently failing to check a box on a form concerning something the Regional Flight Surgeon was already privy to anyway.  The former deserves a five-day suspension; the latter deserves a life-altering, family threatening loss of livelihood, destruction of a life-long career, and loss of pension and lifetime financial security.  What an absolutely amazing and convoluted rationalization.  It’s a wonder she could say this without breaking into laughter… or trembling at the thought that she couldn’t possibly believe what she was swearing to under oath if she just followed the logic of it.

Mr. Osborne must have been salivating for his turn at cross-examination, and he wasted little time getting to the heart of the matter.  He started swinging with his very first question.

Osborne:  “Just who is it that consists of the culture of the Agency, by the way?”

“Mrs. White”:  “Who?”

Osborne:  “What is this ‘culture of the Agency,’ stuff?  Are there individuals that you consider consisting, embodying the culture of the Agency?”

“Mrs. White”:  “For the purposes of the 8500 form, it was certainly the Air Traffic Organization and HR Organization.”  (This directly implicates both “Mr. Green” and “Mrs. Peacock”.)

Osborne:  “Name them for me, please, the people that consist of this culture.  Name them for me, please.”

“Mrs. White”:  “Originally it was the ATX organization, we dealt with the division manager by the name of “TT“.  I am trying to remember who was ATX-1.  I think “PF” was ATX-2.”

Osborne:  “Up to July ’05 no one had ever been terminated for an 8500 form, isn’t that right?”

“Mrs. White”:  “No, they had been prior to that.”

Osborne:  “For falsification or omission?”

“Mrs. White”:  “Falsification.  I think there were a couple we had in the package that were inaccurate entries.  There were some misstatings and misrepresentations.  But for omission, I have to admit, this is the first time I know of.”

Osborne:  “What memos did you send out to the air traffic controllers about this change in culture?”

“Mrs. White”:  “None.”

Osborne:  “So you thought you’d surprise the workforce with this change in culture in increasing the severity of the penalties, that it would be nice to kind of surprise them with?  Is that what you were thinking?”

“Mrs. White” spars with Osborne over several questions, first rationalizing not advising employees of this change in culture, then claiming that starting with the thermonuclear option on discipline didn’t somehow violate the Agency’s contract with its employees.  Once again she claimed omission was ‘egregious’ behavior deserving of termination at the first offense.  Osborne would have none of it.

Osborne:  “That is your testimony?  You are telling the arbitrator that starting with removal, in your view as a national representative of management, that is your view, that that does not constitute a violation of the contract.  Is that right?”

“Mrs. White”:  “That is right.  That is the position of AHR and the Air Traffic Organization.”

Osborne:  “Who are these people?”

“Mrs. White” testified that this culture change began in 2003 and went on to list a few names behind this change.  It goes without saying that this culture change could not have taken place without the direct consent of the FAA Administrator — Marion C. Blakey.  Under further questioning “Mrs. White” admitted that no legal advice was obtained in this conspiracy to circumvent long-standing government policy on progressive discipline, to illegally intimidate controllers into foregoing OWCP claims for legitimate traumas, to violate the Agency’s contractual obligations under the collective bargaining agreement with controllers, and to avoid even the common decency — if not  moral obligation — to warn employees that they faced termination for heretofore lesser offenses.

During questions from Arbitrator Jaffe things got even dicier for the Agency’s case.

Jaffe:  “What did you explain to him “Col. Mustard” in terms of a recommendation, if any, on falsification on the one hand, omission on the other, potentially something else if that was in the mix?”

“Mrs. White”:  “Right.  Okay.  We explained to him about the falsification.  That, you know, is very legalistic if you will.  There is a specific intent to deceive that would need to be met.  Omission, on the other hand, we felt was exactly what happened.  We had some about doing falsification because you know, as Phil Barbarello (NATCA Regional Vice President, Eastern Region) was explaining to “Mrs. Peacock”, at the meeting in January (2005), well, they turned over the forms.  There was never an intent to deceive.

“The problem is that there is the two different systems of records that are going on.  Those forms are over here and the 8500s go over here.  Granted, we understand that a couple of the forms made it over to the medical records by accident, but it didn’t — we were concerned that when you look at the big picture of the FAA, was the Agency on notice?  And one might say, yes, they were.  But it was a supervisor who got it, that went over to Headquarters over here into personnel records rather than medical records.

(So… because the Agency has a messed-up, convoluted records system, we’ll just terminate these eleven controllers rather than fix it.  It’s for decisions such as this that “Mrs. Peacock” was paid $172,200 in 2008, “Miss Scarlet” $165,942 (plus a cash award of $2,500), and “Mrs. White” $131,770 (plus a cash award of $1,725) — all not including other non-salary benefits and compensations.  A lot of badly needed Air Traffic Controllers could be hired for those amounts, and the taxpayers would realize considerably more benefit as a result.)

“So we were explaining to him that the absolute — could we meet the threshold of absolute intent to deceive might be a little on the tough side.  Not impossible, but maybe a little on the tough side (Once again, notice how management takes the easy way out rather than doing the job for which they are paid… and paid quite handsomely?  If they could prove falsification they should have at least made the attempt.  In reality they just didn’t have a case, and “Mrs. White” knew it despite her testimony.).  So when we really sat down and looked at it, what happened here?  They omitted the information.  They shouldn’t have omitted the information.  It precluded the AMEs (Aviation Medical Examiners) from being able to assess, properly assess their medical conditions as they are filing their forms.”

(This assertion is patently false as it flies in the face of the Eastern Region’s Flight Surgeon’s letter claiming that the OWCP claims were irrelevant to his certifications of the eleven physicals in question.  Was “Mrs. White”’s testimony merely an act of omitting this fact, or did she blatantly falsify this accusation altogether?  In “Mrs. Peacock”’s Human Resources division, does it really matter either way?  So, why hasn’t “Mrs. White” been disciplined, let alone terminated?  I contend that those in managerial positions who are party to the destruction of careers and livelihoods should have been held to a higher standard than lower-level employees, especially when under oath.)

“Mrs. White”:  “You know, it was like we just didn’t really know why they would omit that information.  Was it because they wanted to deceive the Airspace Medical Examiners?  As an absolute?  We don’t know.  But did it have a serious impact in our opinion?  Yes, it did.  It precluded them from being able to do their job.

“So, you know, we said, ‘You could go with omission.  We feel it is just as serious.  It falls into that general category on the Table of Penalties just as is allowed for in the NATCA contract.’  As it says in the Table of Penalties, not every conceivable charge is going to be included on the Table of Penalties.

“So, he thought about it and he ultimately decided that felt more comfortable with the omission.”

(“Mrs. White”’s tortured gyrations on the witness stand continued as she testified that controllers were held to a higher standard than other employees because of their safety-related positions.)

“Mrs. White”:  “Again, we felt that you are talking air traffic controllers, who are held to a higher standard in the agency for a number of matters.  For instance, alcohol- and drug-related issues.  They are held to higher standards than anyone else in the agency.  Truth and forthrightness in filling out that form, they are held to a higher standard.  Hardly anybody else in the Agency has medical standards.  They do.  They are held to a higher standard.

“The Aviation Medical Examiner is a private physician who does not have access to Agency records, does not have access to the Workers Comp files, does not have access to the medical records the Flight Surgeon has.  That doctor has to rely solely on the information the controller tells him or her.  And when they opt not to do that, for whatever reason it is, and particularly when it is repeated as it was in a number of cases here, we felt it was very, very serious.

“We felt clearly it was an omission.  We felt clearly it fell within where you discuss misstating information, falsifying information and that type of thing.  It is just as serious.  We just did’t want to lose by not being able to clearly, clearly, define what the reason for the deceit was.”

There is just one problem with “Mrs. White”’s above statement:  The entire premise is a complete and utter fabrication.  Remember where we discussed being allowed to put on Form 8500-8 the phrase, “Previously reported.  No change,” for those previously reported visits within the past three years?  The AME performing these examinations does not have access to the previous years’ forms (unless this particular AME performed those previous physicals and just happened to have retained copies), and thus cannot refer to them to see what was ‘previously reported.’  Those forms are sent along with other data accumulated during the annual physical to the Regional Flight Surgeon.  Clearly this form is for the certifying medical official only — the Regional Flight Surgeon who makes the final determination as to a controller’s fitness to continue working for another year.

If “Mrs. White” and the numerous officials with whom she claims to have conferred didn’t know this, then they are revealed to be total incompetents.  If on the other hand they conspired to concoct this blatantly false rationale, then they have violated federal laws.  Either way, through incompetence or malfeasance, they are unfit for government service… at least by FAA Human Resources’ hideously convoluted reasoning.

“Mrs. White” then conceded that a controller might make visits to a doctor that could be omitted but wouldn’t be a violation of the Table of Penalties.  She cited as an example an ingrown toenail.  Yet, somehow, omitting a check in Box 18 denoting mental conditions, conditions of which the Agency was already aware as was the Regional Flight Surgeon who authorized these people to return to duty, was a crime worthy of firing.

Then came the question as to why, if these controllers were deemed no longer trustworthy by the Agency (in the guise of the deciding official), they were allowed to continue working on the boards as controllers right up until the actual letters of proposed termination went out.  Indeed as previously shown during “Col. Mustard”’s testimony, one controller received his letter as he came off the mid shift.  Pre-letter, the ATM has full faith and confidence in the controller; post-letter he doesn’t.  She was unable to explain this obvious contradiction and claimed to have had no part in “Col. Mustard”’s decision to run his facility in this manner.

One can easily surmise that, if “Col. Mustard” indeed knew he was eventually going to claim loss of confidence in the controllers when they received their letters, then he must by definition have been endangering the flying public by allowing these same controllers to work aircraft prior to receiving their letters.  Deliberately endangering the flying public, by the way, is basis for removal from this profession — be you an Air Traffic Controller or the manager of one.  In 2008 “Col. Mustard” was paid by the U.S. taxpayer $172,200 (and an additional $3,000 cash award) for making such momentous, life-endangering decisions.

With the end of “Mrs. White”’s testimony, so ended the Agency’s case before the arbitrator.  The hearing adjourned until the following day, Thursday, December 8, 2005.

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Tomorrow — “Don’t Blink or You’ll Miss It”
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