Wednesday, December 29, 2010
Arbitrator Rescinds 25-Day Suspension in Its Entirety
On Dec. 15, 2010, NATCA received a favorable decision in a Great Lakes Region discipline case. The agency suspended the grievant for 25 days, allegedly for sexually harassing a female trainee while serving as an On-the-Job-Training-Instructor. In finding that the agency failed to prove the charges, the arbitrator adopted many of NATCA’s arguments: The arbitrator noted that the complainant’s claims were undercut by her request to continue training with the grievant and her statement that she did not have a problem working with the grievant. In addition, the arbitrator cited the supervisor’s testimony that he suspected that the complainant made the false complaint in order to obtain a transfer to another facility because she was failing in the training program. Most importantly, the arbitrator noted that the testimony of the grievant’s coworkers demonstrated that if the grievant’s jokes or comments offended someone and he was asked to stop, he did stop, indicating that he respected his coworkers’ sensibilities and modified his behavior. The arbitrator totally rescinded the suspension and ordered a make whole remedy.
FLRA Agrees With Arbitrator and Upholds Award Including Fees
On Dec. 14, 2010, the FLRA issued a decision, 65 FLRA # 66, denying the agency’s exceptions and upholding the arbitrator’s award in a discipline case. In the award, the arbitrator held that the agency improperly issued a Letter of Reprimand and improperly denied the grievant the 1.8 percent SCI salary increase as a result of an operational error that the grievant did not cause. The agency filed exceptions, alleging that the arbitrator exceeded his authority because the grievance was moot, the arbitrator had no authority to grant the SCI increase, and the arbitrator had denied the agency a fair hearing. Just prior to the hearing, the agency claimed it had removed the Letter of Reprimand but refused to sign a settlement agreement to rescind and expunge the action.
The FLRA sided with NATCA, finding that the Letter of Reprimand was not moot because the issue of the proper remedy was unresolved. In addition, the FLRA held that the arbitrator had broad authority to grant the remedy of restoring the 1.8 percent SCI salary increase that the grievant would have received but for the Letter of Reprimand, as the supervisor testified. In addition, the FLRA denied the agency’s claim that it was denied a fair hearing because the arbitrator had denied the agency’s request to call several union officials to testify as witnesses at the hearing. The FLRA decision clears the way for the controller to finally have his record cleared of the unlawful Letter of Reprimand and to have his full 1.8 percent SCI salary increase restored. The FLRA also upheld the arbitrator’s award of reasonable attorney’s fees.
Arbitrator Upholds Training Termination
An arbitrator recently found that the agency properly terminated, from training and employment, a Phoenix 20 ATC trainee who was unable to pass radar training, and whose Training Review Board (TRB), of which the union facility representative was a member, had unanimously determined that there were no flaws in her training and that she was unable to become certified as an ATC. In addition, the arbitrator found that the training provided to the grievant was reasonable, complete and fair. Finally, he found that the agency was not obligated to place the grievant in a tower-only position, as that the decision to place an employee in a tower position via Article 61 remains solely at the discretion of management and is not mandatory or automatic. Additionally, he determined that there was no evidence that vacancies existed at lower-level facilities at the time of her termination.
The arbitrator’s decision in the agency’s favor was strongly influenced by the fact that the TRB recommended her termination from training and that there was a union representative on the TRB. The fact that the TRB also unanimously stated that additional hours would not help her progress also seems to have been a factor. Additionally, the union was unable to prove that the training provided to the grievant was unfair or inadequate, or provided in a disparate manner as compared to the training provided to her fellow trainees. Finally, on the issue of reassigning the grievant to a tower-only facility via the provisions of Article 61, the fact that the grievant had never been qualified at another facility, unlike two other employees who had failed training, seems to have impacted the arbitrator greatly.
For all of these reasons, the arbitrator found that the grievant’s removal was for such cause as to promote the efficiency of the service.