Tag Archives: Marion Blakey

Unions Are Obsolete? The New York 12 — Part 5


Today concludes our lesson on the importance of unions in today’s workplace environment, with a focus on public-sector unions in particular.  If you don’t belong to a union, you should consider it.  If your workplace doesn’t have a union, you should organize one.  If you work in a “Right to Work” state, remember that the whole phrase should actually be, “Right to Work . . . for Less, and Without Protections.”

* * *

NATCA’s Turn at Defense

After some preliminary evidentiary housekeeping, NATCA’s Attorney Bill Osborne presented NATCA’s case.  It wouldn’t take long.

Osborne:  “Have you rested?”

Head:  “Correct.”

Osborne:  “And we rest.”

That’s it.  If you blinked, you missed it.  So sure was Osborne that the Agency’s witnesses had destroyed their own credibility… when they weren’t busy destroying each others’ that is… that he rested.  His went on to state his rationale:

“We think that the Agency’s evidence is overwhelmingly condemning of what the Agency did.  They stipulated yesterday by their witnesses that the documentary evidence that we have already submitted is accurate and true.  We think that is more than ample record for you (Arbitrator Jaffe) to make your decision.  We also renew our motion for interim relief.  And we would be happy to give you oral argument or brief, but we want a decision in this case at the earliest possible time and we are hopeful of getting the case resolved before the holiday.”

From Arbitrator to Mediator:
The Home Stretch

Elizabeth Head realized by now that her case had been consigned quite literally to the trash bin.  Going off record, she proposed that the arbitrator mediate an immediate settlement, to which Bill Osborne readily agreed.  With that request Ira Jaffe took off his arbitrator hat and exchanged it for that of a mediator.

The result?

Four days later, with full back pay minus five days’ worth, the eleven controllers were escorted back into New York TRACON by then NATCA President John Carr.  The five days’ pay was a bone thrown to the FAA with the understanding that it in no way could be called a suspension, and that no mention or hint of a suspension could be uttered by the Agency or placed into the victims’ personnel records.

Despite that proviso, it took the Agency not even until the end of the day agreement was reached to break their end of the deal.  Because of intense Congressional interest, with direct inquiries from the offices of New York Senators Chuck Schumer and Hillary Clinton as well as Representative Timothy Bishop of New York’s First Congressional District, the Agency went into face-saving mode.  Spokespersons for the Agency went before the press and mislead the public when they characterized Jaffe’s withholding of five days’ pay as a ‘suspension’ that vindicated the Agency’s actions against these eleven controllers.

And what of the twelfth controller, the controller who had since transferred to Phoenix TRACON?  “Victim 12” had been the first of the NY 12 fired, and he was the last to be reinstated.  His case ended pretty much the same, only this time the Agency didn’t even bother going before an arbitrator.  In January of 2006, less than a month after the arbitration that reinstated eleven of the NY 12, the Agency awarded “Victim 12” full back pay and purged his records of the entire incident.

NATCA went twelve for twelve.  The Agency wound up paying back a total of almost 60 months’ worth of pay for work not performed, including in that back pay package what the controllers would have made in Sunday and holiday pay, night differential, and overtime.  All told, the Agency was out a conservatively estimated $600,000 in settlement money, and that figure doesn’t include incidental expenses such as the overtime necessary to cover for the loss of services of these twelve controllers or the attorney’s fees for both parties which the agency was now obligated to pay as a result of this humiliating loss.  Many officials were caught either lying outright in sworn testimony, or giving testimony that was so erroneous that they were unqualified to answer the questions posed them.  None of these individuals were ever disciplined, let alone terminated.  The reason why is simple:  They were merely following mandates from higher up the food chain.  Marion Blakey had fired her first warning shot across NATCA’s bow, and these people were the ones manning the cannon.

Culture change did not end with these arbitrations.  In fact, it got worse.  Much worse.  Nationwide, management began cracking down on even the slightest perceived infractions or abuses.  One of the New York 12 didn’t last a month back at work when, because of the unrelenting harassment, he resigned from the Agency after a fifteen-year career with an impeccable record.

With the implementation of the White Book all hell broke loose at many facilities, as management strove to portray NATCA as totally impotent.  I can list literally hundreds, if not thousands, of cases showing the pettiness with which management at the local level wielded its new-found power, but I won’t bore the reader.  I’ll just cite one, and once again it deals with “Mr. Green”’s coveted dress code… the one worth delaying and inconveniencing passengers; driving up airlines’ fuel and labor costs; and even endangering lives, property, and national security.  It occurred at one of this nation’s approximately twenty Area Route Traffic Control Centers (ARTCC).  If that sounds like an important facility, it most certainly is.  By the time the local manager, “Mr. H. Couture”, finished defining his own version of the dress code he came up with a twelve-page document that specified everything including pant length, heel height, number of pockets, color combinations, fabrics, and, unbelievably, even thread count of the clothing material.  The following email is but one example of the importance to “Mr. H. Couture” of this silliness:

Subject:  Dress Code

Greetings,

This week we have had a couple of questions about the dress code.  Guess with the warm weather it had to happen.  The policy is the same as we put out in September.  No shorts, no skorts, but Capri pants mid calf or longer are OK for females.  Seems some females have been wearing some shorts (city shorts) or Capris that are just below the knee .  These are not business casual.  Make sure we all are watching this.  For now I would just advise them not to wear them again and not send them home.  If it happens more than once then you may send them home.  Shoes for women was also a question.  Specifically how to we determine if the shoes are flats.  Best we could come up with is if it has any thickness of a heel then it is OK.

With us questioning the dress of female controllers some questions have come up about female FLM’s and OM’s.  Just remember the dress code for all FLM’s and OM’s is business not business casual.

The important thing is for us all to be consistent in our application of the dress code.

Thanks,
“Mr. H. Couture”

So, “Mr. H. Couture” fiddled while (Blank) ARTCC burned with losses in staffing, increases in both Operational Errors and Deviations, and mounting delays into and through the airspace for which he was responsible for managing.  Meanwhile, I’m sure the American taxpayer is left wondering:  While “Mr. H. Couture” was displaying his juvenile desire to be party to the haute couture establishment, is this really what he was being paid $172,200 (and a $1,500 bonus) in 2008 to accomplish?

And all through this lunacy the Agency continued to get its hat handed back to it in arbitration after arbitration after arbitration, eventually racking up settlements well into the millions of dollars and paying NATCA attorney fees running into the hundreds of thousands. By 2008 the annual employee satisfaction survey had the FAA at 216 out of 218 on the list of the government agencies for which to work.  Is it any wonder why — if the frozen wages didn’t drive out experienced, retirement eligible controllers — this petty, nonstop harassment did?

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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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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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