Thursday, December 16, 2010
Arbitrator Sides With NATCA on Disputed Issues and Reduces Removal to 14-Day Suspension
This case arose out of a removal action taken against a grievant in the E&A bargaining unit by the FAA. The grievant was terminated by the agency based upon four charges: 1) failure to follow instructions; 2) misuse of a government contractor issued credit card; 3) providing inaccurate information on government documents; and 4) lack of candor.
NATCA argued at hearing, and in its post-hearing brief, that the agency had failed to show the elements of allegations one, three and four. The grievant had admitted to charge two during the investigation. The agency claimed the grievant: 1) had failed to follow his supervisor’s instructions about travelling to and from the job site on government time; 2) had falsified time and attendance documents; and 3) had lied during the official investigation. NATCA argued that the grievant was never put on clear notice of the alleged rule regarding travel, was not timely advised of that rule when the grievant submitted travel vouchers showing times which supposedly violated agency policy, had never falsified a time and attendance record, and had shown complete candor during the investigative interview. NATCA was forced to admit that allegation two was admitted by the grievant, but argued the removal of the grievant was too harsh in light of that sole offense and when considering similarly situated disciplines.
The arbitrator agreed with NATCA in all respects, finding that the supervisor did not put the grievant on notice of a clear rule, and in so finding, noted that the supervisor was not credible and had contradicted his sworn statements by his testimony at the hearing. The arbitrator credited the grievant’s testimony that the grievant’s travel to and from work was done in accordance with his supervisor’s instructions, and that the grievant had good reason for early returns from the job site due to weather and other conditions. The arbitrator accordingly found that there was no evidence of falsification or a lack of candor.
The arbitrator, therefore, sustained the grievance as to charges one, three and four but upheld charge two as admitted by the grievant. The arbitrator found that termination of the grievant was an abuse of discretion for the credit card misuse as alleged in charge two and reduced the termination to a 14-day suspension. The arbitrator reinstated the grievant with full back pay and benefits, including interest, seniority and all other benefits accorded by the collective bargaining agreement, and invited NATCA to file a petition for attorney fees.