LR Corner
Tuesday, March 01, 2011

Arbitrator Slams FAA and Orders Rescission of 14 Days

In a resounding victory for NATCA, a 14-day suspension issued to an Information Systems security officer was rescinded. The grievant is a member of the ARC bargaining unit. In February 2009, there was a major breach of the FAA's computer security system. The employee's supervisor attempted to put all of the blame on him for the breach, despite the fact that the protocols in place to deal with security breaches were outside of the immediate scope of the grievant's duties. The proposed action aimed at the grievant was removal and was based upon three reasons. The first was a failure to safeguard information. The second reason was a failure to follow absence reporting requirements. The final reason was insubordination. After an extensive written reply was submitted that disputed all of the reasons, the agency reduced the proposed removal to a 14-day suspension.

The suspension was pursued through the grievance arbitration procedure. In reference to the charge that the grievant refused to safeguard information, the evidence showed that the FAA had not even completed its investigation prior to taking the discipline. Moreover, while the grievant was interviewed by internal security, the subject of the interview was not about what was charged- safeguarding of information- but rather whether or not the employee had not followed procedures. Evidence adduced at the arbitration firmly established that the grievant did what was required. That fact was confirmed by two individuals who subsequently investigated the breach. Accordingly, the arbitrator determined that the first reason had not been proved by the FAA.

During the time that the breach was initially discovered, the grievant worked many extra hours. He subsequently took ill, but forgot to claim sick leave. The FAA claimed that he was cheating on his time. In rejecting that claim, the arbitrator noted that, once the employee was made aware that he had forgotten to claim sick leave for those days, he requested to change his time but was denied by the agency. Moreover, the arbitrator noted that the grievant, employed by the government for 32 years, had over 1,300 hours of sick leave, and it seemed unlikely that the issue was nothing more than an oversight which he attempted to correct once he became aware. In addition, the grievant rarely missed work and did not have any prior leave issues. At the hearing, the supervisor tried to twist the issue to one where she questioned the veracity of the sickness. That claim was rejected by the arbitrator who ruled that the agency had not met its burden regarding a claim that he intentionally failed to request sick leave.

The final reason for the discipline concerned a claim of insubordination. The supervisor claimed that the grievant defied her authority by copying the supervisor's supervisor on an e-mail that he sent. The e-mail, instructing him to not send anymore e-mails without approval from his immediate supervisor, copied the superior, and at most the grievant hit reply "all" on two e-mails. The arbitrator further noted that the grievant had sent one of the e-mails prior to being instructed not to do so. In sum, the arbitrator found that there was insufficient evidence to establish that the grievant was insubordinate by continuing to send out messages regarding the breach after receiving the directive to cease sending out messages.  

Based on the above, the arbitrator ordered the agency to rescind the suspension and make the grievant whole.