Category Archives: Aviation Safety

September 5, 2013 · 5:35 am

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:

* * *

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.

* * *
Tomorrow — “Don’t Blink or You’ll Miss It”
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September 4, 2013 · 5:35 am

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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September 3, 2013 · 5:35 am

Unions Are Obsolete? The New York 12 — Part 2


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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