Replying to Proposed Discipline
The FAA has proposed to discipline you. What do you do? Under law and contract you have the right to union representation. You should contact your FacRep, who can assist you. The first thing you should do is ask for all the information you need to respond to the proposed discipline. The information we are talking about is everything management used in their decision to discipline you. You have the right to see all that information before you respond to the proposal letter. However, the contract establishes firm timelines for your response. So, you should also ask, in writing, for the Agency to extend the time for a response until after you have had an opportunity to review all of the information. If management fails or delays in giving you all the information they relied upon, they are violating the law. You should request extra time to respond. If the FAA refuses you can tell them that in your response.
When it comes time to write your response to management, you always want to keep in mind that your case may end up in arbitration, so you want to keep the response short, to the point and respectful. You have two distinct audiences — the deciding official and an Arbitrator. While some points you raise may not be persuasive to the Agency’s deciding official, they will have weight before an arbitrator. You have the right to deny the charges, but you do not want to sound angry or defensive. You just want to tell your story in a way that someone outside of the FAA can understand. It can only help your case if a third party who reviews your response sees that you have responded to the Agency in a rational and deliberate manner. There is one exception to answering a proposal letter and that is if the FAA alleges some type of criminal activity. You do not want to respond to the letter until you get a criminal attorney and ask him/her for advice.
One of the first things you want to look at when writing your response, is whether the charges are alleged to have occurred at work or away from work. You still want to deny things you did not do, but if you did make a mistake, not every mistake off the clock can be disciplined. If the FAA alleges off-duty conduct, you want to see if there is any connection to your work. If there isn’t any connection, you can argue that management should not try to discipline you for something off-duty and unrelated to your job.
The reply should contain several things that can help your case: awards, excellent performance history, OJTI, CIC, years of service, lack of past discipline or pointing out that any discipline you had was a long time ago and/or unrelated to the current matter. You also would want to apologize if you did what management says you did. An apology goes a long way with an Arbitrator rather than pointing fingers at everyone else. This is not to say you do not have the right to explain what caused the situation or point out extenuating circumstances.
You should also know that when you turn in your reply, you have the right to attach copies of the awards, appraisals and recommendations to your reply. You can get these items by requesting a copy of your employee and official personal file. If the FAA will not give them to you in time to respond, you can mention that in your response as well. You or your representative also has the right to ask the FAA for copies of similar discipline. You have to ask for it in sanitized form so that the other employees’ privacy is protected, but you have the right to see what management has done in the past regarding violations similar to yours. You might also want to ask your FacRep to look at past arbitrations to see what NATCA has done to lower previous penalties. If the discipline is lower than what you are charged with, you want to point this out to FAA.
By reviewing all of the information related to your situation — reports of investigations, similar discipline, etc. — you are in a position to point out where the Agency has failed to support the proposed discipline. It will be important to note that the Agency has not established that you committed an infraction. Of course, this argument will only be made stronger if you have documentation that directly rebuts the allegations. It will also be important to note that the Agency’s response to the alleged misconduct is out of line with what has been imposed in the past. Any time the Agency proposes (and ultimately imposes) discipline, it is their burden to prove that: (1) you actually committed all the elements of the alleged misconduct; (2) there is sufficient connection between the misconduct and the efficiency of the service to warrant discipline; and (3) that the particular penalty imposed has been appropriately chosen for the specific conduct involved and is based on a consideration of the factors relevant to promotion of service efficiency. If, in your response, you can show that the Agency hasn’t met any of these elements, it will be harder for the Agency to justify imposing the proposed discipline. Remember, you are writing your response for two different sets of eyes — the Agency and an Arbitrator.
