LR Corner

Arbitrator rules that the Agency’s effort to stick an employee with a three-day suspension doesn't hold water

NATCA just received a great decision from an Arbitrator out of the Central Region regarding the three-day suspension of an ATC. The case was arbitrated this past January by Jennifer Kukac and Pat Pelkowski (ICT). The Arbitrator agreed with NATCA that the employee was denied his due process rights and mitigated the three-day suspension to an oral reprimand.

The issue arose out of an on-the-spot performance correction in July 2007. The supervisor disagreed with the grievant’s handling of an aircraft and decided the grievant needed to be counseled on the matter. Unfortunately, when the grievant explained his side of the story, the supervisor did not react well and shoved the grievant through an open doorway. The grievant then called the Airport Police and filed assault charges. The supervisor was arrested and entered into a plea agreement whereby he agreed to attend anger management training.

The Agency, however, issued a three-day suspension to the grievant for conduct unbecoming. The Agency alleged at the hearing that the grievant was loud and profane during the performance discussion and that the supervisor inadvertently shoved the employee. The Arbitrator disagreed.

The Arbitrator did find that the grievant may have been loud during the discussion, but he also believed the supervisor was agitated before the discussion took place. The Arbitrator also found that the employee was denied his due process rights because no one talked to the employee about the performance discussion before he was suspended. He believed the Agency had made its mind up to discipline the employee before he even responded to the proposal letter. Specifically, the FAA issued a statement to the media announcing that the grievant had already been disciplined, even though his response to the proposal letter was not turned in until almost two weeks after the news report.

The Arbitrator, however, went on to say that evidence at the hearing somewhat rectified the Agency’s prior lack of due process as the grievant was finally able to tell his side of the story. The Arbitrator then looked at the witness statements and concluded that while the supervisor was agitated heading into the conversation, the grievant also appeared to have raised his voice during the conversation.

Therefore, based on all the evidence, the Arbitrator determined the grievant’s three-day suspension should be converted to an oral reprimand and all monies and benefits that were lost should be restored to him.

This is a significant win as it highlights how the Agency needs to conduct proper investigations before issuing misconduct. Jumping to conclusions or pre-determining fault serves no purpose and the Agency paid the price.