Recently, NATCA has seen an upsurge in the amount of Accountability Board investigations at the FAA. This installment of Know Your Rights will discuss the Accountability Board, how can employees use it, and what rights an employee has during an Accountability Board proceeding.
What is the Accountability Board?
The Accountability Board was established by FAA Order 1110.125a, which is available on the FAA employee website. The FAA’s website states:
“On July 1, 1998, the FAA Administrator established the Accountability Board to provide oversight and ensure that management is accountable for responding to allegations of sexual harassment, misconduct of a sexual nature, and related reprisal. The Board, comprised of senior level executives, sets standardized procedures so that management responds to allegations in a timely, consistent, and appropriate manner.
“In 2000, the Administrator expanded the scope of the Board to include harassment or other misconduct based on race, color, religion, sex, national origin, sexual orientation, age, and disability.”
In sum, the Accountability Board exists to make sure that management acts promptly in investigating and recommending action regarding these issues. This means, of course, that it will be more likely that employees who allegedly engage in such activity will be investigated by the FAA.
Can employees use the Accountability Board?
As stated above, the Accountability Board’s oversight processes are mainly utilized by FAA management to make sure that claims of harassment and related misconduct are investigated properly and promptly. Management has a responsibility to report alleged misconduct or harassment to the Accountability Board Coordinator. However, Section 15 of the Order states that “Allegations may come to light through the Administrator’s Hotline, the Office of Civil Rights, the Civil Aviation Security Division, the Human Resource Management Division, or an EEO Counselor.” Therefore, it is possible for an employee to bring management’s failure to properly address a claim of misconduct or harassment directly to the attention of the Accountability Board, through one of these avenues.
It is important to note that, for the Accountability Board to have jurisdiction, the alleged misconduct or harassment MUST concern an allegation regarding race, color, religion, sex, national origin, sexual orientation, and/or disability. Mere personality conflicts or conflicts outside these areas (such as conflicts based on favorite sports teams, etc.) are not supposed to be covered by Accountability Board procedures. On the other hand, Section 8(b)(2) of the Order states that even allegations of harassment, etc. that fall short of the legal standard may be considered misconduct under Accountability Board standards. The Accountability Board also investigates allegations of reprisal against employees who engage in or cooperate in Accountability Board investigations. The decision to take action under the Accountability Board procedures remains within management’s discretion.
Depending on the severity and complexity of the issue, management can initiate one of two investigations: either an internal investigation or, if management believes that the allegation warrants a Security investigation, management can forward the request for investigation to the Accountability Board staff who will, in turn, forward the request to the Office the Assistant Administrator for Security and Hazardous Materials. Security has 30 working days from the date of referral to complete the investigation and generate a report of investigation (ROI). Management has 10 working days from the receipt of the ROI to propose action. Therefore, once management has requested an investigation and the Accountability Board passes it on to Security, it becomes a Security investigation of the employee(s) involved.
It should be noted that the Accountability Board procedures are wholly separate from the Equal Employment Opportunity Process. Employees who wish to file discrimination complaints concerning other employees, management or the Agency should consult with their local Union representative and EEO counselor.
What rights do employees have in an Accountability Board-instigated investigation?
Employees are entitled to notice and an opportunity to respond to allegations against them. Employees who are under investigation by local management (called an internal inquiry) or the Security branch for alleged offenses under the Accountability Board provisions have the same rights as employees in any other investigation. Employees are entitled to a Union representation during the investigative interview and during the preparation of their written statement. Employees are also entitled to Union representation during any interviews with management that may lead to discipline. It is NATCA’s position that all Accountability Board related interviews and discussions with management can lead to discipline for the person accused of misconduct. Be sure to bring your Union representative to any and all discussions of an allegation brought against you under Accountability Board procedures.
If a Security investigation is purely administrative, employees must receive what is called a Kalkines Warning. Kalkines was a Supreme Court case holding that federal employees can be ordered to cooperate in administrative investigations, but must be informed them that they are not under criminal investigation and that their statements will not be used in a criminal proceeding unless they make false statements under oath. If investigators refuse to provide a Kalkines Warning, employees should immediately terminate the interview and seek a criminal defense attorney.
If an Accountability Board investigation results in discipline, NATCA bargaining unit employees have the contractual right to grieve the discipline. NATCA-represented employees should consult with their local representatives to determine if their case is suitable for a grievance and potentially arbitration.