LR Source - November/December 2005
Drug Abatement Investigator Made Whole
Arbitrator Diane Massey recently overturned the removal of a bargaining unit employee and reinstated her position with full back pay plus interest, and rendered a make whole remedy with respect to back pay, seniority, and benefits as if she had never been terminated. The back pay is approximately $72,000 before interest. The grievant, who was removed from her position effective Dec. 31, 2004, is expected to return in November.
The grievant is an inspector with the FAA’s Drug and Alcohol Compliance Enforcement Division. The agency alleged the grievant had engaged in 1) misuse of a government sponsored travel card; 2) falsifying her application for federal employment, SF-171; and 3) careless work performance, all three of which led to the agency’s decision to terminate her from her position.
Massey ruled the agency did not prove by a preponderance of the evidence that the grievant engaged in first two alleged misconducts, and vacated those charges.
Conversely, Massey found the agency did prove by a preponderance of the evidence that the grievant engaged in careless work performance; however, she opined that “careless work performance is almost always viewed as an offense that is to be progressively and correctively disciplined.” Because this was the grievant’s first offense for a careless work performance misconduct, the penalty imposed should be minimal, progressive and corrective in nature. Thus, Massey awarded that the grievant’s removal is reduced to a written warning.
Additionally, Massey awarded the union attorney’s fees after concluding that the union substantially prevailed in this matter. The advocates on this case were Melinda Kim of the national office and Steve McCoy of Northern California TRACON. The national representative for the Drug Abatement Division is Ben Fish.
Fired NY TRACON Controller Reinstated With Back Pay
On Oct. 31, Arbitrator Charles Long rendered a decision in the removal case of Kevin Maney, a controller at the New York TRACON (N90). Facility Manager Jeffrey Clarke fired Maney, a staunch NATCA activist and steward for many years, in May 2005 for allegedly falsifying official facility records; providing misleading statements in connection with an official investigation; refusing to carry out orders; and acting inappropriately.
In his decision reversing the removal, Long found the agency failed to provide a preponderance of evidence in support of the two main charges; that many of the agency witnesses were not credible; and that union animus played a part in the removal decision. He accordingly overturned the removal, reduced the penalty on the latter two charges to a 30-day suspension, and reinstated Maney to his previous position with full back pay and other remedies.
Labor Relations Counsel Marc Shapiro and Labor Relations Staff Representative Peter Gimbrere represented Maney.
UPDATE: NATCA prevails in ABA representative case
As reported in the September/October issue of the Air Traffic Controller, the FAA filed a petition with the Federal Labor Relations Authority (FLRA) seeking to clarify the FAA headquarters bargaining unit Financial Policy Division (“ABA”) by excluding from the unit the Management and Program Analyst position, assigned to the FAA’s Travel and Payroll Services Branch. This was the agency’s first attempt at challenging positions included in the NATCA certifications. Marion Isaac, NATCA’s regional representative for the ABA Line of Business, currently occupies the position in question.
The FAA asserted that Isaac’s duties fall under 5 U.S.C. Section 7112 (b) (1) (2) and (7), with the reasoning that Isaac is:
a) A management official;
b) A confidential employee; and
c) Primarily engaged in investigatory or audit functions relating to the duties of FAA employees that directly affect the internal security of the agency.
With regard to the agency’s assertion that Isaac is a “management official,” the FLRA found that Isaac does not have authority or responsibility to determine FAA policy or commit the agency to any course of action. Isaac is an SME and, as such, applies and interprets existing policies and established procedures.
The agency’s second contention was that Isaac is a “confidential employee.” However, the FLRA found no showing that Isaac obtains advance information of management’s position and strategy on negotiations, grievances, and other labor-management relations matters.
The agency’s third assertion was that Isaac is primarily engaged in “investigation or audit functions.” Here, the FLRA found that providing computer records to the inspector general upon request and compiling computer reports of delinquencies does not constitute an “investigation” or “audit” of agency employees.
As the salient facts supported NATCA’s contention that a compelling reason did not exist to exclude Isaac from the bargaining unit, the FLRA determined that Isaac’s position should remain included in the certification.
