This Supplemental Affidavit was filed on 4/27/13. This online version provides dozens of links to the key documents. Hover over the [blue links] for short descriptions. Key people have been color-coded, and a few amplifying comments have also been added. To see a PDF of the original filed affidavit, click this link: PDF
UNITED STATES OF AMERICA
BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY
SAN FRANCISCO REGION
I, Jeffrey Nathan Lewis, make the following voluntary statement in cooperation with an official investigation being conducted pursuant to the Federal Service Labor-Management Relations Statute. I understand that this statement will be considered confidential by the United States Government and will not be disclosed as long as the case remains open, unless I testify at a formal hearing and it becomes necessary to produce the statement at the hearing. Upon the closing of the case, the statement may be subject to disclosure in accordance with the Freedom of Information Act, as amended.
||28242 S. Salo Road, Mulino, OR 97042
This is a Supplemental Affidavit. I filed an 18-page affidavit on August 28, 2012. PDF That affidavit was mailed to the FLRA office, including a 1-page cover letter, a list of names/contacts, a 3-page index of exhibits, and a collection of 61 Exhibits. All of these documents are viewable online at [http://aireform.com/?page_id=479]. In the time since filing, I have received additional records from FAA, mostly in response to FOIA requests. It has also become apparent that FLRA needs to see further evidence of the alleged collusion between FAA and NATCA. As was asserted in the filing and first affidavit, this collusion obstructed the Due Process and Grievance rights of this bargaining unit member and former FAA air traffic controller, and was thus a discriminatory action. In this Supplemental Affidavit, I lay out a chronology of the delays, deceptions, miscommunications, and other evidence (mostly FAA records) showing the failure by NATCA and FAA officials to resolve grievance NC-08-79364. A copy of this Supplemental Affidavit will be posted online (see web address above); copies of any needed documents are available upon request.
This NATCA-FAA grievance languished for nearly four years, as follows:
Grievance NC-08-79364 was filed on 5/1/08. NATCA elevated this grievance to Arbitration four months later (see 8/27/08 email). Nothing happened for the next ten months. Meanwhile, I was fired in an action that FAA records shows was taken as a clear retaliation for my filing this grievance.
Kevin Sills (NATCA) and Glen Rotella (FAA) began discussions toward arbitration (see 7/1/09 email). But, Glen Rotella left FAA that same month, and the FAA Advocate then became Dan Castrellon. Nothing further happened for another year.
I sent an email to Aletha Hicks-Moffatt (FAA) and Kevin Sills (NATCA) (see 7/26/10 email), asking them to move on this arbitration. My NATCA Advocates became Mike Hull and Ham Ghaffari (see 9/5/10 email). My grievance was scheduled for a pre-arbitration review. I worked intensively with Mike Hull, who prepared a thorough ‘Presentation’. Mike Hull successfully moved my grievance to a National panel, for possible selection onward to arbitration. (see 12/4/10 email)
My grievance made the final cut when MTF Panel member Dana Edward Eischen signed a 3/31/11 decision to go to full arbitration. Kevin Sills had left NATCA, and Mike Hull advised that my new NATCA advocates were Jay Barrett (Miami) and Mark Wilson (NATCA HQ) (see 7/18/11 email).
- Agreeing to an Arbitrator: An arbitrator had been selected (Wilma Rader), but she withdrew after breaking her leg (see 8/10/11 email). Much time passed waiting for FAA to define their Advocate. Once that was done, Eric Lindauer was promptly selected, and hearing dates were set for 2/16/12 and 2/17/12 (see 11/23/11 email). FAA and NATCA finally agreed to a Hearing 43-months after the grievance was filed.
- The FAA Advocate position went through a series of short-term assignments. First, it was Kevin Gray, until he withdrew (see his 9/6/11 email). Then, nobody served until Ros Marable became active on or around 9/30/11. Ros Marable was replaced effective 10/7/11 (see her 10/11/11 email). She was replaced with the final FAA Advocate, Bobby Rodriguez, who served from 10/7/11 onward.
For more than half a year, NATCA misled FAA to believe that the NATCA Advocate was Mark Wilson. Thus, from July 2011 until early February 2012, the series of FAA Advocates were holding discussions with Mark Wilson when they needed to negotiate with NATCA’s lead Advocate, Jay Barrett. Mark Wilson took no action to correct this problem, which was abruptly exposed in late January (see the 1/26/12 through 1/30/12 emails to/from Bobby Rodriguez). While this problem was persisting, the NATCA Advocates were doing NOTHING to prepare for the arbitration hearing. They ignored my many email requests to produce evidence, select witnesses, etc. Jay Barrett did not even ask me about prospective witnesses until he sent an email less than 15-days prior to the scheduled hearing (see 2/1/12 email). The result was that NATCA missed the deadline for submitting their witness list to FAA. When FAA refused to work with NATCA (see Bobby Rodriguez’ ‘Unilateral Remedy’, dated 2/2/12), NATCA ignored the case details and ample supporting evidence; NATCA simply abandoned the arbitration.
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This was a clear failure to represent.
The NATCA Advocate asked me for a list of possible witnesses 45-months after I had filed the grievance, and less than one-day ahead of the deadline for submitting a witness list to FAA.
This is a verbatim copy of the actual Supplemental Affidavit, with links to copies of FAA records, color-coding, and other features to hopefully make it easier to understand. Links are in blue, with square brackets. The number of the document has a background color as follows: FAA (blue) NATCA (pink) Lewis (green) other (yellow)
Additionally, four names are marked with red boxes (e.g., Glen Rotella ); FLRA needs to produce affidavits from these four key witnesses.
Copies of all records are available on request; please inquire.
A Detailed Chronology:
June 5, 2008Glen Rotella sent a 3:51PM email to Jason Ralph, with cc’s to Andy Richards, Dick Fossier and Ros Marable.) [email 6-5-08.1551] & [F10-3984 Response] & [F10-3984 Appeal Response]
“OK, the grievance has now been elevated to step-2 (without a step-1 reply) and I will try and put together something in the coming week. After I obtain all the information from medical I will forward a draft response for your review. As this will be a step-2 response who do you all want to sign it?”
This followed a series of emails by Glen Rotella to Jason Ralph and Andy Richards (starting on 5-21-08), in which Glen Rotella explained: “…please remember the subject of the ULP I settled was our failure to respond to his grievance. I do not want to be back before the Authority explaining this again…. ” Glen Rotella also warned that “…the FLRA is considering issuing a complaint about a breach of agreement for not getting a response to the grievance at step one. I do not want to miss step 2….” [Series of emails from 5-21-08 to 6-5-08]
June 19, 2008:
The grievance was denied at Step Two, as signed by Jason Ralph (for details, see page 12 of the original 8/28/12 Affidavit). [Step-2 Grievance Denial letter]
August 27, 2008: Marc Shapiro, NATCA’s Director of Labor Relations, sent a letter to Melvin Harris, FAA’s AHL-1, to elevate the grievance to Arbitration. A copy was sent to me by Kevin Sills, as an attachment to his 6:23AM email (cc’d to Mike Hull and Ham Ghaffari). The letter read: [email 8-27-08.0623]
“This letter is to request arbitration for the grievance listed at the end of this letter. It would be very much appreciated if the appropriate FAA official would contact Kevin Sills at 202-628-5451, in order to select an arbitrator and schedule a hearing.”
September 25, 2008:
The grievance was denied at Step Three, and signed by acting LR Manager Dan Castrellon. (for details, see page 13 of the original 8/28/12 Affidavit). [Step-3 Grievance Denial letter]
May 5, 2009:The date of my ‘forced-voluntary’ retirement; i.e., if I wanted to recover the retirement annuity FAA had taken in November 2008, I had to file papers requesting a so-called ‘voluntary retirement’. The FAA initiated my removal in early May 2008, in retaliation for my filing Grievance NC-08-79364.
While awaiting my first retirement pension payment (after the forced retirement) I received a letter advising I owed the government $2,653, due to an alleged overpayment by FAA. I responded by requesting a full pay audit. I also began coordinating with both Kevin Sills
(NATCA) and Glen Rotella
(FAA) to clean up the mess that FAA had made of my pay records. Kevin Sills
and Glen Rotella
both appeared to be very cooperative and professional, as evidenced by Glen’s 6/16/09 email and Kevin’s 6/23/09 email. I sent a 5:22PM email to Glen Rotella
on 6/24/09, and asked that he forward it to Dan Castrellon; this email listed the chronology I compiled (thus far, based on obtained FAA records), showing many instances where Dan Castrellon made critical, damaging decisions, apparently based on slanders primarily by Jason Ralph. At the end of the month, I sent an email (6/30/09 at 10:13PM) with a spreadsheet and summary of all needed reimbursements and pay corrections. [6-1-09 Debt Letter]
& [6-6-09 response to Debt Letter]
& [email 6-23-09.0743]
& [email 8-11-09.1601]
& [email 8-6-10.0846]
ADDED (not part of original Supplemental Affidavit):
Here’s the chronology (and links to PDF copies) of another ULP, SF-CA-09-0098, which was dismissed when FLRA Regional Director Gerald Cole issued a 6/30/09 letter…
FAA had breached the settlement I had mailed to Glen Rotella on 5/1/08; in fact, a grievance submitted with that settlement was denied twice, on 66/19/08 and again on 9//25/08 both times falsely claiming the money had been reimbursed. It had not (it finally happened in May-June 2009), so I sent an 11/26/08 letter to the FLRA Regional Director asking they reopen the ‘settled’ ULP. That was quickly rejected, so I filed this ULP on 12/2/08; I mailed a witness list, document index, and 15-pages of documents on 12/14/08 (to FLRA agent Pamela Richards). Glen Rotella confirmed FAA was ready to arbitrate, with a 5/23/09 letter to Pamela Richards. By mid-June, it all looked like FAA was done, and FLRA was proposing to dismiss, so I submitted a 6/25/09 letter with supplemental exhibits. Then, Mr. Cole dismissed, citing ‘lack of evidence’.
FAA had concealed all key records from FOIA and MSPB until December 2009 and later; this evidence was eventually obtained via a series of FOIA requests.
July 1, 2009:Kevin Sills
sent a 6:29AM email to both Glen Rotella
and me, to arrange a discussion. With Glen Rotella’s
departure, Dan Castrellon was now working my case. [email chain 7/24/09.0524]
July 24, 2009:an exchange of emails between Kevin Sills and me confirms that Glen Rotella had departed FAA, at age 59. [email chain 7/24/09.0524]
“…Glen Rotella is no longer with the Agency but is still coordinating your issues with Dan Castrellon. I am trying to solve the issue and will keep you posted….”
August 6, 2009:I sent a 10:53PM email to Kevin Sills and expressed my concerns about Dan Castrellon, and the high probability that Castrellon would not cooperate, but would instead delay and obstruct any resolution. [email 8/6/09.2253]
“…Clearly, their methods and abuses must be documented and exposed, to ensure Agency officials never again employ these tactics against other employees, including future NATCA members. Therefore, I have concluded I have no interest in pursuing any settlement with the Agency on my case. This case must be arbitrated. … I ask you proceed immediately to facilitate scheduling for arbitration. … Please advise the dates I need to plan around, and the materials you will need to prepare….”
August 10, 2009:
I sent a 10:28PM email to Aletha Hicks-Moffatt (manager at AWP-16, thus Dan Castrellon’s boss). I attached a copy of a 6/24/09 email I had sent to Glen Rotella
, which Glen had assured he had forwarded to Dan Castrellon. I had not heard anything back from Dan Castrellon, so with this 8/10/09 email I was asking Aletha Hicks-Moffatt to look into it. [email chain 8/11/09.1601]
August 11, 2009:Aletha Hicks-Moffatt replied with a 4:01PM email, including: [email chain 8/11/09.1601]
“…I read your attachment and it appears that you question the Agency’s actions. It is my understanding that these issues are elevated to Arbitration and any questions should be addressed to the appropriate NATCA representative….”
August 24, 2009:
I had received no reply from Kevin Sills
to the email I had sent at 10:53PM on 8/6/09, so I sent him a short email at 12:29AM on 8/21/09 stating: “…I need to know what NATCA is doing and planning to do to resolve this ongoing case….” Kevin Sills
replied with a 6:19AM email, sent on 8/24/09, which included: “…we still have your case in line for arbitration….”
A full year would pass before any further effort was made. [email chain 8/24/09.0619]
I learned years later…that other arbitrations were being expeditiously handled by FAA and NATCA. Three examples:
The 30-day suspension case at Ontario: The grievant had a long disciplinary history, including a 30-day suspension and two separate efforts to fire him (first in 2007 and again in 2008) for inappropriate behavior. His grievance challenging the 30-day suspension was filed in January 2008, and he had a full arbitration hearing in September 2008. FAA records show that the grievant abruptly retired in June 2008, just days ahead of a removal letter.
The 30-day suspension case at Concord: I had worked with the grievant during my four months at Concord, and was very aware of his case history. He was assessed a 30-day suspension for inappropriate behavior. He served this suspension in his last month, leading into his voluntary retirement. Grievant’s full arbitration hearing was conducted in March 2008, roughly one year after he filed his grievance. I was a witness for grievant. Glen Rotella was the FAA advocate at the arbitration hearing.
The Union-Rep case at El Monte: A grievance was filed in February 2008, seeking to overturn a 10-day suspension for inappropriate behavior. A full arbitration hearing was held just six months later, on 8/14/08. The arbitrator reduced the discipline to a 5-day suspension.
There is a stark contrast between these three cases and my own. Theirs were taken to a full arbitration hearing in just six-, eight- and twelve- months; my case was repeatedly delayed, then a hearing was finally ‘scheduled’ to happen 45-months after I had filed my grievance (though, in fact, it was never actually heard). These three comparable cases involved inappropriate behavior with ample witness documentation; my case also alleged inappropriate behavior, but it had only one material witness (the manager, Jason Ralph), whose past testimony was now fully contradicted by Agency records I had collected via FOIA. This was all fully documented. Additionally, by the time my hearing was scheduled, Jason Ralph’s credibility had been completely destroyed; FAA records showed a series of slanders, and an array of documented lies during his three-hour MSPB deposition in February 2009. All of these records were available for use by NATCA at the arbitration hearing. Instead, NATCA abandoned the arbitration.
July 26, 2010:Nothing had happened for a year, so I sent an 8:29AM email to both Kevin Sills and Aletha Hicks-Moffatt, asking them to promptly move forward with the arbitration. My email included: [email chain 8/6/10.0846]
“…I want it clearly understood that, although this arbitration is for a substantial monetary amount (roughly $42K), a quick settlement with cash payout would NOT be acceptable. Why? Because this arbitration hearing presents a necessary opportunity to provide the Due Process that has been aggressively obstructed for three-and-a-half years. Our Agency (and this Union) can and must perform better; the case history needs to be defined and judged, to ensure mistakes such as this are never repeated within the FAA. … I ask that the two of you immediately schedule this case for a full and fair arbitration….”
August 6, 2010.I sent an 8:46AM email to Kevin Sills, Aletha Hicks-Moffatt, and Tim Kubik (Aletha’s boss; in charge of all HR at AWP; he was the former AWP-16 manager, and was involved in the early months of my case, when I was locked out). It included: [email chain 8/6/10.0846]
“…would one of you please advise the status of this old grievance arbitration? I have heard nothing back so far, and my calls to Tim and Aletha are not being returned. For your convenience, I have attached a pdf copy of the NATCA arbitration request from August 2008….”
September 5, 2010:Mike Hull sent a 5:58PM email to Ham Ghaffari and me. Mike Hull and Ham Ghaffari were the two NATCA regional leaders for grievances and arbitrations. [email chain 11/26/10.0943]
“…we have reached a point in the grievance process, whereby NATCA and the FAA in the Western Pacific Region will be hearing grievances that were filed as a result of the White Book. This grievance hearing will not take place at least until November or December of 2010, and maybe not even until January 2011. Of the over 19,600 grievances that were filed during the timeframe of September 3, 2006 through and including September 30, 2009, there were approximately 192 grievances that made the cut to take a further look at for our discussion at the regional level…..”
Mike Hull advised that my grievance made the cut. However, he needed a signed waiver of timeliness or he would withdraw the grievance. Thankfully, although the waiver was 29-months-old, I was able to locate a copy.
September 7, 2010:I sent a 6:09PM email to Mike Hull and Ham Ghaffari. I thanked them for their reply and asked if Kevin Sills was still involved. My email also included: [email chain 9/13/10.2225]
“…BTW, it is very important to me that this grievance be arbitrated or otherwise processed so as to produce an independent record of the series of agency actions. In fact, a full agency capitulation with full cash payout on the entire grievance would be a mistake, as it would be throwing out a chance at an independent judgment. Justice and truth trumps money any day….”
September 8, 2010:
Mike Hull’s 9:13AM email confirmed Kevin Sills
was no longer involved, and only Ham Ghaffari and Mike Hull were working on the case. It also advised that, with passage of a new labor agreement in July of 2009, they were complying with the new process for cleaning up the enormous backlog of older grievances. [email chain 9/13/10.2225]
September 13, 2010:
I sent a 10:25PM email to Mike Hull with copies he had requested. Mike Hull had made it clear he was the one NATCA official in charge of advocating my grievance to the panel, to either be adjudicated or referred to a full arbitration hearing. [email chain 9/13/10.2225]
September 21, 2010:Mike Hull sent a 6:40AM email to Ham Ghaffari and me, reiterating the process and the intent to pursue settlement. It included: [email chain 11/26/10.0943]
“…what I will tell you is your grievance will be presented as we do all other grievances…a presentation to the agency with an attempt to settle. If we cannot settle it to our satisfaction, then I will elevate the grievance to the national office for possible scheduling for an Arbitration Hearing….”
September 23, 2010:I sent a 9:48PM email to Mike Hull, with yet another summary of why this matter needed to be heard, to create a record: [email 9/23/10.2148]
“…Glad to hear you will soon meet with Agency officials on the grievance NATCA requested arbitration on in late August 2008. Not so glad, though, that you are stating in your email you will seek a satisfactory settlement…yet you have not even discussed the case with the grievant (me) who has roughly $42K riding on this arbitration…and a great opportunity (via arbitration) to finally have someone hear this case….”
I also noted that some of the newly obtained FAA records documented lies by both District Manager Andy Richards and Dan Castrellon (who served as acting LR Manager during the retaliatory phase of my case).
November 26, 2010:I emailed Mike Hull and Ham Ghaffari at 9:24AM, including: [email chain 11/26/10.0943]
“…I understand from the phone call received from Mike last month that my grievance is set for PAR during the week of 12/6. I also understand, from the internet, that the process for grievance administration as implemented by the NATCA NEB includes a Grievance Checklist. Having reviewed my files and a blank copy of this checklist (from the NWP website), I am deeply concerned that we are likely not ready to forcefully and efficiently advocate for the full resolution of this grievance. Simply, given the internal agency emails I have received via FOIA (which solidly expose the outright lies in Castrellon’s 9/25/08 rejection letter to Ham, while also undermining any BS arguments Castrellon et al may try to blurt out at PAR), there is no way the current grievance package contains the records you need to do your representational duties….”
I outlined details of the grievance history. I asked for a copy of the Grievance Checklist. And I pressed the urgency to prepare all needed evidence.
November 26, 2010:Mike Hull sent a 9:43AM email reply, to Ham Ghaffari and me. It included… [email chain 11/26/10.0943]
“…it is ironic that you emailed me today. I just did a full and complete review for your grievance yesterday in preparation for presentation. First of all, it is not going to PAR. PAR is only for the new CBA. Your grievance is going to a process called RAPT, which stands for Regional Arbitration Preparation Team, which was instituted by the Mediation to Finality Panel for all unresolved Greenbook and Whitebook grievances. … I am missing quite a few documents that I need to argue your case and I hope you have them. I will provide a full and complete list of documents needed by this evening at the latest as I am still compiling the list but will be done sometime this evening. I will call you as well as email you when my final list is compiled so that you can start looking for the documents that I need….”
November 26, 2010:
Mike Hull sent a 4:54PM email, to both Ham Ghaffari and me. It had a detailed list with twenty groups of documents he needed to prepare a presentation due in roughly ten days. I had waited 27-months since the arbitration was first requested, in August 2008; but now, I had three days to hurry up and help NATCA prepare: “…you have exactly 72 hours to send me the information that I request herein. The time now is 4:55 PM PST….” [email chain 11/26/10.1654]
November 27, 2010:
I immediately set to work, to collect all the records and somehow organize them into a package that would help Mike Hull succeed. I sent an email to Mike Hull at 12:53AM, asking him to clarify: should I index my exhibits to his 20-questions, or index them to the original grievance filing? [email chain 11/28/10.1706]
November 28, 2010:In an exchange of emails, I advised Mike Hull that I was finding plenty of relevant records, and expected to make his 72-hour deadline. Mike Hull’s 5:06PM email reply included: [email chain 11/28/10.1706]
“…I do NOT need anything other than what I asked for!! Please just get me that information in my email below! Once again, my deadline to you, as described below is Monday afternoon at 4:55PM PST!! Therefore, PLEASE stop looking for anything other than what I asked for and get me the EXACT information I asked for….”
November 29, 2010:Mike Hull sent me a 5:42PM email, expressing ‘thanks’ for taking the time to discuss things in a phone call. He noted he was preparing approximately ten other presentations, and would be busy, so he could allow a new deadline if I can produce other records before Wednesday at noon. [email chain 12/3/10.1454]
“…thank you again brother, and I look forward to getting my hands on the information that I requested from you….”
December 1, 2010:
I sent a 2:56PM email with the last of the records Mike had requested. It came to over 200-pages of exhibits. [email chain 12/3/10.1454]
December 2, 2010:Mike Hull emailed at 7:49AM, including: [email chain 12/3/10.1454]
“…I have been through all of the docs you sent me on Monday and yesterday. Wow, I must say that you did a fantastic job of gathering all of the info and chronicling it for me. I have been through all of the docs and as of right now, I have just a few questions….”
December 3, 2010:I sent a 2:54PM email to Mike Hull. It had five more attachments, mostly related to the June 2009 pay audit and a few additional exhibits to help fill in the whole story. One paragraph discussed ‘Constructive Suspension’, and read: [email chain 12/3/10.1454]
“…I looked at Adverse Action in 5USC75. For what it is worth, I had never even heard of a ‘constructive suspension’ until Aug-08 when, trying to figure out what was going on and how to defend myself (while facing the deadline for responding to the removal proposal) I phoned MSPB and chatted with an employee. He listened to me explain a 3-minute history, then said ‘sounds like a constructive suspension…’.”
My records now show a minor correction to this: the phone call that I had made in 2008 was NOT to the MSPB but to the FLRA. The helpful explanation about ‘Constructive Suspension’ was provided by John Pannozzo, who today serves as Regional Attorney at FLRA’s San Francisco Office.
December 4, 2010:
NATCA official Mike Hull sent an email at 9:45AM, attaching a copy of his draft presentation regarding the grievance for which I was seeking an arbitration hearing. A couple hours later, I sent Mike Hull an email with some attachments to clarify my work history and details of the failed MSPB Appeal process. Using this information, Mike Hull updated his draft presentation, as noted in his 1:34PM email. [email chain 12/4/10.1334]
December 6, 2010:Mike Hull made his presentation on the week of 12/6/10. He successfully argued that the case needed to be elevated to national-level review, by the Arbitration Review Board.
March 31, 2011:Dana Edward Eischen signed a decision, referring this grievance to a full arbitration hearing: [3/31/11 MTF decision]
“Matter referred to a full arbitration hearing before another neutral selected by the parties under Article 9 of their collective bargaining agreement”
July 18, 2011:
Mike Hull sent a 5:26PM email, advising that he was no longer working on my arbitration case. He also reported that he and Ham Ghaffari had found two other NATCA officials to handle the arbitration for NATCA: Mark Wilson (an attorney at NATCA HQ), and Jay Barrett (a controller/attorney based in Miami). [email chain 7/18/11.1726]
August 10, 2011:
Arbitrator Wilma Rader sent an email to both Mark Wilson and Kevin Gray (the FAA advocate, at AWP-16). She advised she was withdrawing as arbitrator, after breaking her leg. The hearing dates in late October thus became doubtful. [F12-7293,p5]
August 17, 2011:I sent a 6:33AM email to both Mark Wilson and Jay Barrett, which opened with: [email chain 8/17/11.0633]
“Hello, I understand from Mike Hull that the two of you are NATCA’s team for the arbitration of the grievance I filed 39-months ago. I also understand that the arbitration will be held somewhere in/around the Bay Area on a pair of days in late October… which appear to be 10/26 and 10/27. I would appreciate an email from either or both of you, confirming these dates, advising the location, and advising what plans I need to make. I want to do everything I can to assist our Union in not just winning this one small grievance, but setting a precedent with that victory that will ensure other NATCA members are not subjected to the horrific maltreatment I have faced the past four+ years….”
The email continued with a detailed assessment of the case history and the need to arbitrate; a number of questions related to strategy, potential witnesses, etc.; and, an offer to provide any documentation and support they needed to help them win this arbitration for NATCA.
August 27, 2011:
I emailed Mike Hull and Ham Ghaffari at 1:11PM. We had been exchanging emails in which it was becoming clear that Dan Castrellon had failed to provide NATCA with grievance response letters back in 2008, thus denied the union from being aware of my case and the need to assist. The main paragraph in this email presents a concise timeline for the agency retaliation, based on recent FOIA responses. [email chain 8/27/11.1311]
August 29, 2011:
Mike Hull sent a 2:47PM email confirming he found no NATCA records related to the new grievance I had filed on 8/23/08 (NC-08-87720). This was an important grievance that, had it been processed timely and fairly, would have removed two key damaging (and erroneous) records used to justify my removal on 11/6/08. FAA thus obstructed NATCA from any effective oversight or participation to fulfill their duty of fair representation. [email chain 8/29/11.1447]
August 29, 2011:
I sent a 3:51PM email to Mike Hull, in which I summarized the role of Dan Castrellon in obstructing my due process rights, both for the removal and the two grievances (NC-08-79364, and NC-08-87720). [email 8/29/11.1551]
August 29, 2011:
I sent a 4:20PM email to Jay Barrett and Mark Wilson. It summarized the recent emails with Mike Hull, and suggested NATCA needs to file a new ULP about Agency failure to provide the union with copies of grievance actions impacting bargaining unit members. I asked for an update on the hearing date. I also advocated (again) a diplomatic solution: to use the new FOIA records to discuss with FAA officials at the highest levels, how we might produce a full and fair settlement. [email 8/29/11.1620]
August 30, 2011:
I sent a pair of emails to the key FAA players: Andy Richards
, Mark DePlasco, Tony DiBernardo and Ros Marable
. These emails outlined some of the details of the key FAA failures in the handling of my case. These emails also asked for answers to a few specified questions. No answers were ever provided. [email 8/30/11.0808]
& [email 8/30/11.1425]
August 31, 2011:Ros Marable sent a 6:34AM email replying to my 8/30/11 email. [email 8/31/11.0634]
“Mr. Lewis, as a reminder, you must submit all of your requests for information regarding your prior employment under the established guidelines of the Freedom of Information Act (FOIA).”
August 31, 2011:
I sent a 10:37AM email to Jay Barrett, Mark Wilson and Mike Hull. It noted I had gotten no replies from them after recent emails, and still need to know what the plan is for the arbitration. [email 8/31/11.1037]
August 31, 2011:
I sent a 12:55PM email to Ros Marable
, Andy Richards
Tony DiBernardo. This was a detailed chronology showing many FAA failures in the handling of my case, and my eventual retaliatory removal. Three attachments totaling 29-pages were included. This email put these three FAA officials on clear notice, as to the need for FAA to clean up the damages that had been done during their watches. [email 8/31/11.1255]
& [attachments to the email]
August 31, 2011:
At 3:07PM, I sent an email to Clay Foushee, the one person at FAA HQ in charge of all whistleblower cases. This included some explanation and attached the 12:55PM email I had just sent to Marable, Richards and DePlasco. [email 8/31/11.1507]
August 31, 2011:Jay Barrett finally replied to me with a 3:31PM email, including: [email 8/31/11.1531]
“…I am sorry that I cannot answer your questions as of yet. I am not up to speed on your case in any measure. … I am hoping to receive a package on your case very soon and I will dig in as soon as I can. … I most certainly believe we should pursue settlement … We will be in touch as soon as Mark and I have had a chance to go over your case….”
He confirmed the arbitration hearing would NOT happen on 10/26, due to his own schedule conflict.
August 31, 2011:
I sent a 5:29PM email to Mike Hull and Ham Ghaffari. It detailed why I felt NATCA needed to file a new ULP, charging FAA officials with obstructing due process and the grievance procedure by repeatedly failing to provide the union with timely copies of grievance documentation. [email 8/31/11.1729]
August 31, 2011:I sent a 6:21PM email to Jay Barrett and Mark Wilson. It laid out in no uncertain terms, why this grievance had to be heard (to create a full record) and not settled. It included a forwarded copy of the 5:29PM email (and all attachments) as had been sent to Mike Hull and Ham Ghaffari. It thus put both Jay Barrett and Mark Wilson on full notice, as to the background, the case details, and the need for a full and fair resolution. Here is an excerpt: [email 8/31/11.1821]
“…On the issue of possible settlement, Jay, I have to make myself absolutely clear. Last December, when Mike brought up this grievance at the meeting, they offered $10K and Mike called me before accepting. If I recall correctly, my immediate and rather uncontrolled reply was “you can tell them they can shove that offer, … but first wrap it around a brick”. Excuse the brief vulgarity, but you are both part of the ATC profession, so no doubt can chuckle at it. Mike chuckled a bit and noted, too, all parties agreed the grievance was worth roughly $40K. Well, Mike later related to me that he went back to them and offered full closure, if they would simply write a check out to me for $50K. They declined. Had they not declined, I would have been very unhappy with Mike, because I had impressed upon him for months, the absolute critical necessity to go to a hearing or arbitration. The simple fact was, until earlier this year (thus months after they declined Mike’s $50K offer), there were still so many unknown details about what actually happened in my case, that it was far more important to me to get no money but at least get a hearing. This was needed for simple, psychological closure. Maybe you can understand that? Or, if you have never been through my last four years of FAA-generated hell, maybe you cannot?….”
September 1, 2011:
Mark Wilson replied with a 7:48AM email, apologizing for being out of touch, and advising he was working on finding a replacement arbitrator. [email 9/1/11.0748]
September 6, 2011:Kevin Gray sent a 2:21PM email to Mark Wilson and Dan Castrellon, advising he was no longer the FAA advocate for the arbitration: [F12-7293,p10-11]
“…this case is being reassigned, the new advocate will contact you shortly. Sorry for any inconvenience this may cause you….”
September 6, 2011:Dan Castrellon sent a 2:57PM email to all specialists in the AWP-16 office, seeking a volunteer FAA advocate for the arbitration: [F12-7293,p6]
“Colleagues: I am seeking a volunteer to advocate the above case that was formerly assigned to Kevin. Please advise by COB Thursday, Sept. 8, 2011, whether anyone wishes to volunteer to advocate this case. If no volunteers, the cases will be assigned accordingly. Thx”
September 12, 2011:
Mark Wilson sent a 9:32AM email to Dan Castrellon and Kevin Gray. He asked Dan Castrellon to confirm if he was the new FAA advocate for the arbitration. He also pressed to move forward and select a new arbitrator. [F12-7293,p10]
September 12, 2011:Dan Castrellon replied to Mark Wilson with a 9:40AM email: [F12-7293,p10]
“Mark..no I am not. The case will be reassigned today and the new advocate will contact you to select a new arbitrator….”
September 12, 2011:Dan Castrellon sent a 9:43AM email: [F12-7293,p6]
“Colleagues: Having received no volunteers, this case is assigned to Ros Marable. Ros: please make contact with NATCA Rep Mark Wilson as he is anxious to proceed with selecting a new arbitrator and dates.”
Ros Marable apparently did not make contact, as indicated by the 9/28/11 emails. Ros was confirmed as the FAA advocate in a 9/28/11 email, but the arbitration was abruptly reassigned to Bobby Rodriguez on 10/7/11. There is a 10/4/11 email in which Mark Wilson advised that ‘FAA just appointed its latest advocate’. Effectively, there was no active FAA advocate from 9/6/11 until 10/7/11.
September 12, 2011:
Mark Wilson sent a 12:27PM email, listing the series of delays and the need to wait until the new FAA advocate is identified. [email chain 9/12/11.1319]
September 12, 2011:I sent an email to Mark Wilson at 1:19PM. I thanked him for the email update and noted new information I had found. It also articulated (again) the absolute need to be ‘made whole’: [email chain 9/12/11.1319]
“…If Agency is inclined to cave on payment of all 700-ish hours of Constructive Suspension lost pay, that would be great…but please make sure we press the larger issue attached to grievance NC-0879364: the “make whole” resolution element (being put back to work, as I requested on 5/1/08), and their retaliatory removal (initiated immediately after I filed this grievance)….”
September 12, 2011:
I sent a 2:36PM email to both Ros Marable
and Andy Richards
. It included two attachments and pointed out the need for us to discuss and resolve a very messy problem, created by FAA officials. I forwarded a copy of this within a 2:51PM email to Clay Foushee. [email 9/12/11.1436]
& [email 9/12/11.1451]
September 20, 2011:
I sent an 11:15AM email to Andy Richards
, Mark DePlasco, Clay Foushee, and Andrew Robinson (at FAA’s Accountability Board). This presented new information about a similar case in which a controller at Reid-Hillview airport abruptly retired under pressure from management. [email 9/20/11.1115]
September 21, 2011:
I sent a 1:19PM email to Andy Richards
, with cc’s to David Caldwell (NATCA-SFO), Richard Giles (AWP-Security), Barry Davis (AWP-ATO), and Ros Marable
. With attachments, it detailed records showing Andy Richards
had lied when he claimed he could not find an email critically needed for my defense. Had the email been timely provided, the removal would have been stopped in late summer 2008. [email 9/21/11.1319]
September 26, 2011:I sent a 7:23AM email to Mark Wilson. I asked: [email chain 9/26/11.0937]
“…what would I have to provide, and to whom, to get NATCA to file a ULP against FAA?”
ADDED (not part of original Supplemental Affidavit):
I sent an email to District Manager Andy Richards at 9:25AM on Monday, September 26, 2011. I noted I was conferring with NATCA about filing a new ULP charging that he and other FAA officials had interfered with, restrained, and coerced me in the exercise of my protected right to file MSPB, FLRA, and CBA grievance complaints.
I summarized some of the many case irregularities and asked him to explain how this could happen in our FAA. He never replied. [email 9-26-11.0925]
September 27, 2011:Mark Wilson sent a 1:00PM email to me, summarizing a productive phone conversation we had just had, including: [email 9/27/11.1300]
“…whether we can do anything about the termination at this point, I do not know. If there’s anything we could do, it would be informal, outside the grievance channels and beyond this grievance. … It was good talking with you and as soon as I hear anything about an arbitrator or date, I’ll let you know….”
September 28, 2011:Mark Wilson sent a 10:24AM email to Kevin Gray, threatening action if no advocate was identified that day: [F12-7293,p10]
“Please let me know who the FAA’s advocate is on this case ASAP. If I don’t hear by tomorrow, I will elevate the matter.”
September 28, 2011:
Dan Castrellon finally identified the new FAA advocate. He sent an 11:13AM email to Mark Wilson, saying: “…the case was assigned to Clemortee ‘Ros’ Marable.”
This notification was delayed for 16-days, after the 9/12/11 assignment to Ros Marable
(see the 9:43AM email). [F12-7293,p9]
September 29, 2011:I sent a 1:08PM email to Mark Wilson. I provided copies, including an FLRA affidavit I had just finished for ULP SF-CA-11-0292: [email 9/29/11.1308]
“…given the detailed communications, especially the “make whole” communications from FAA’s Glen Rotella, that preceded the filing of this grievance, I do feel it is incumbent upon the Union to advocate for all remedies requested on 5/1/08. Should the Agency honor all requested remedies and I be “put back to work”, the termination would generally become a moot issue. And this would certainly not be without precedent. During my career, I had many ex-PATCO coworkers. Each had been terminated in 1981, and Agency subsequently complied to pressures brought by Congress, NATCA, and the Public to offer thousands new jobs back with the FAA….”
October 4, 2011:At 6:18AM, NATCA’s director for LR, Anna Jancewicz, sent an email seeking a case update. Mark Wilson replied with a 6:31AM email to four NATCA officials and me, indicating he just learned about Marable’s role: [email 10/4/11.0631]
“FAA just appointed its latest advocate for this case on Friday (9/30) and I sent her an email asking that we go with the arbitrator who was our 3rd pick (Lindauer). I haven’t heard back yet, but I will give her another call this morning.”
October 11, 2011:Ros Marable sent an 8:32AM email to Mark Wilson, with cc’s to Dan Castrellon, Aletha Hicks-Moffatt and Bobby Rodriguez: [F12-7293,p9]
“Due to an unfortunate sequence of events, I am no longer assigned to this case effective Friday, October 7, 2011. As such, Bobby Rodriguez has been assigned the Lewis case and he can be reached at (310) 725-7840. Bobby will also be in contact with you as soon as possible..”
October 12, 2011:
With a 7:05AM email, Mark Wilson contacted Eric Lindauer’s office to attempt to schedule an arbitration hearing date, with cc’s to Bobby Rodriguez and Ros Marable
. His email declared Mark Wilson and Bobby Rodriguez as the two advocates. [F12-7293,p13]
October 12, 2011:
I sent a 10:57AM email to Mark Wilson, with cc’s to five others at NATCA, including James Swanson
(my former coworker at Concord tower). [email 10/12/11.1057]
October 12, 2011:
Mark Wilson sent an 11:57AM email to me, with cc’s to Jay Barrett, Mike Hull, Ham Ghaffari, and Anna Jancewicz. James Swanson’s
name had been removed from the email recipient list. Mark Wilson advised that the intent was to set up an arbitration hearing in mid-December. [email 10/12/11.1157]
October 12, 2011:I sent a 12:43PM email to Mark Wilson et al: [email 10/12/11.1243]
“…please advise me the key details I need to know, as far as where, and what days you will need me for (prep or hearing) so I can arrange transportation and lodging. You have gathered by now that fixing our FAA is a core mission to me right now, so you can expect I will do everything I can to help you and Jay shine a bright light on these managers at this Arbitration….”
October 28, 2011:I sent a 10:43PM email to David Weingart (FAA Chief of Staff) with a collection of documents showing the extensive mishandling of my case by FAA officials. I asked him to share it and seek explanations from Teri Bristol, Kathryn Vernon, Andy Richards and Dr. Stephen Goodman. [email 10/28/11.2243]
“…it is critical that our Agency have accountability and, among other things, this means that Teri and Kathryn need to look at a case such as this and ask the hard question: “was I aware of this, and would I have signed off on this?” And, they need to speak up to right a wrong…David, I do hope you can forward this on for timely action. … would you please forward the package on through the necessary channels and ask for explanations from Teri Bristol, Kathryn Vernon, Andy Richards, and Dr. Stephen Goodman?..”
October 31, 2011:
David Weingart had also forwarded the email to Clay Foushee. I sent a 10:53AM email, thanking David and asking both David and Clay to please inquire if they had questions or needed to see other records. [email 10/31/11.1053]
November 10, 2011:Clay Foushee (AAE-1, the FAA manager in charge of Whistleblower cases) sent a 7:48AM email: [email 11/10/11.0748]
“…David and I have also discussed your allegations and are in agreement. We have decided not to initiate a new investigation into your allegations. We must utilize our resources on our top priorities, which are disclosures from current FAA employees and new safety allegations from current certificate holders, as well as the general public. It is neither practical, nor possible for us to look back and conduct thorough investigations involving allegations that are now many years old, unless there is probable cause to suspect that the alleged instances of policy non-compliance may be ongoing. I’m sorry to have to deliver this news.”
November 15, 2011:
Bobby Rodriguez sent a 1:45PM email to Sara Seaborne (aide to arbitrator Eric Lindauer), with a cc to Mark Wilson. He asked for the availability of Lindauer for the Lewis arbitration. [email 11/15/11.1345]
November 17, 2011:
I sent a 7:58PM email to Mark Wilson et al. I attached a copy of the 4-5-08 ‘slimeball’ email I had just obtained via FOIA Appeal. I also pointed out the need to ensure James Swanson
was included as a potential hearing witness. [email 11/17/11.1958]
November 18, 2011:
Union counsel Mark Wilson sent a 6:14AM email to Eric Lindauer’s office, requesting to reserve February 15-16, 2012 for the arbitration hearing. CC’s to Jancewicz, Barrett, Hull, Ghaffari, and Lewis. [email 11/18/11.0614]
November 21, 2011:I sent a 10:34PM email to Mark Wilson, accepting the hearing dates and asking: [email 11/21/11.2234]
“…can you call soon and advise a few details … (1) in view of the extant evidence, is NATCA pressing Agency to settle with a package that fully makes me whole? If not, why not? … (2) if Lindauer is chosen, and if his practice is based in Oregon (my home state), is there a possibility the arbitration can be held in Portland? … (3) wherever the arbitration is to be held, who are the key witnesses we will be involving in this process? Rotella? Fossier? Marable? Castrellon? Mark DePlasco? Andy Richards? Jason Ralph? Monique France? Kathryn Vernon? Dave Adams? ..or whom else?”
November 23, 2011:Mark Wilson sent an 8:26AM email finalizing the arbitration hearing dates: [email 11/23/11.0826]
“…the parties would like to confirm the hearing dates for February 16-17 … the parties are still in the process of trying to determine the location and exact time. We will let you know shortly.”
November 29, 2011:
I sent a 9:48AM email to Mark Wilson, Jay Barrett, Mike Hull and Anna Jancewicz. It included attachments and new evidence showing a clear FAA violation of their own Order 3600.4, with the ‘Enforced Leave’ they had illegally imposed upon me in 2007. I asked NATCA to file a grievance, based on this new information. [email 11/29/11.0948]
November 30, 2011:
FAA Advocate Bobby Rodriguez sent a 4:31PM email to arbitrator Lindauer and the Union, confirming an arbitration hearing was now scheduled at Daly City, CA, to occur on February 16-17, 2012. [email chain 12/1/11.0612]
January 4, 2012:I sent a 3:55PM email to Mike Hull and he promptly replied with a 4:52PM email confirming we were going to arbitration. [email 1/4/12.1652]
“This grievance was presented to the mediation to finality panel as part of the SGP that I explained to you. I am attaching their decision. As you can see, it is going to be heard by a different neutral third party. I am attaching a copy of their decision.”
January 17, 2012:Bobby Rodriguez sent a 3:06PM email to Mark Wilson, with cc’s to Dan Castrellon and Sarah Seaborne (Lindauer’s aide): [F12-7293,p44-45]
“Arbitrator Lindauer contacted me earlier today in order to verify if both parties were intending to proceed forward with the Lewis issue that is currently scheduled for hearing next month at the San Francisco Certificate Office in Daly City, CA. As such, please contact me at the office number provided so that we jointly contact Arbitrator Lindauer to verify this issue will proceed forward. This will also be an excellent opportunity for you and I to discuss the moving papers prior to the hearing. So please give me a call at your earliest convenience.”
January 18, 2012:Mark Wilson sent a 7:06AM email to Bobby Rodriguez: [F12-7293,p44]
“Please just email the arbitrator and confirm we are proceeding with arbitration, and copy me. I will be in touch later today or tomorrow about the moving papers.”
January 19, 2012:
Bobby Rodriguez sent a 6:26AM email to Sarah Seaborne, with cc’s to Dan Castrellon and Mark Wilson. Final confirmation for the hearing scheduled in four weeks, on 2/16/12 and 2/17/12, at Daly City. [F12-7293,p44]
January 26, 2012:Bobby Rodriguez sent an 8:57AM email to Jay Barrett and Mark Wilson, with 4 cc’s: [F12-7293,p52-53]
“…I have just been made aware you are seeking approval to be released from your duties for the time period of February 14, 2012 through February 17, 2012. … Please be advised Mr. Mark Wilson has identified himself to Management as the designated NATCA representative for this case … Mr. Mark Wilson has been the only NATCA representative I have been in communication with regarding this grievance (and his) designation as the NATCA representative for this grievance was most recently confirmed on Tuesday, January 24, 2012, when Mr. Wilson responded to a question, as the designated NATCA Representative, that was posed to the advocates of record by Arbitrator Lindauer. Since this hearing is quickly approaching, please confirm if you have replace Mr. Wilson as the NATCA Representative….”
January 26, 2012:Mark Wilson sent a 9:06AM email to Bobby Rodriguez and Jay Barrett, with 4 cc’s: [F12-7293,p51-52]
“Hi Bobby, Maybe you’re new. Jay will be the primary (1st chair) and I will now be the secondary advocate (2nd chair). We will both be included in discussions and planning. Thanks for your diligence and attention.”
January 26, 2012:Bobby Rodriguez sent a 10:04AM email to Mark Wilson: [F12-7293,p51]
“Hello Mark, I’m very familiar with this process as I do have a few cases in various arenas under my belt. I was merely confirming if there was a change of presenting advocate since I did not receive any word for my Union counterpart regarding this subject. In the future, I would greatly appreciate a contact call from the assigned advocate of record rather than an outside party, especially when I have never heard of the individual mentioned and still awaiting to discuss matters of the hearing with the advocate of record. Thank you, Bobby Rodriguez”
January 30, 2012:Jay Barrett sent a 10:47AM email to Bobby Rodriguez, with cc’s to Mark Wilson, Aletha Hicks-Moffatt, Monique France, and two others: [F12-7293,p50-51]
“I apologize for the confusion as we were under the impression you had been advised of my substitution on this case back in August when Mike Hull asked me to take his place due to his unavailability for the original hearing date. Mark and I would be more than happy to discuss any preliminary matters that warrant discussion as well as any settlement offers. I am a controller at MIA and working dayshifts all this week, so email may be the best way to get the ball rolling. We will have a brief information request for you in the next day or two. We look forward to hearing from you. Have a great day.”
One problem for NATCA is that this appears to be a lie. Jay Barrett’s name was identified to me in July 2011 emails, but he was not identified to FAA until late January 2012. In fact, Mark Wilson sent a 10/12/11 email to Lindauer, in which he clearly declared, “I am the advocate for NATCA.” All emails between FAA and NATCA involve only Mark Wilson; the one partial exception is a late November email from Mark Wilson, in which he accepts the hearing dates and includes Jay Barrett within a large group of cc’s. In reviewing these records, it appears to me that Bobby Rodriguez was sincere in late January, when he expressed surprise at hearing about Jay Barrett’s role as lead NATCA advocate.
January 30, 2012:Bobby Rodriguez sent a 1:24PM email to Jay Barrett, with cc’s to Aletha Hicks-Moffatt, Mark Wilson, Monique France, Dan Castrellon, and two others: [F12-7293,p50]
“…I appreciate today’s contact email from you officially advising me of the change in advocates for the Union. Until today, I have not been provided any information or informed by anyone regarding this change. Nevertheless, I would like to move on and hopefully communicate more effectively during this process. Since you have been identified as the Union’s First Chair in this case, I will direct all my communication toward you. As such, I would greatly appreciate for you to contact me at the office number provided so that we may discuss this case since the hearing date is quickly approaching. I strongly believe we should resolve as many procedural issues as possible prior to the day of this hearing, including any possible settlement offers. I look forward to your call.”
February 1, 2012:No communications happened for four weeks. Then, Jay Barrett sent a 2:34PM email to me. We were already less than fifteen days from the start of the arbitration hearing, and he was just now asking me for a list of potential witnesses. [email 2/1/12.1434]
“I just wanted to touch base with you concerning the hearing on Feb 16 & 17. Mark and I will need to prep you on the 15th, probably a full day. I have a couple of questions for you.
(1): What would be an appropriate financial settlement for the grievance? Keep in mind that there is no ability to recover for pain and suffering only for lost leave or time you were in an LWOP status or other medical and associated costs.
(2): Who do you think would make good witnesses for your case and would be able to testify on your behalf?
(3): When would you be available this week to spend some time on the phone with me to answer questions?
Thanks very much…”
February 2, 2012:
I sent a 9:55AM email reply to Jay Barrett. I emphasized the need to not settle, and to proceed with the hearing, to achieve the Due Process that had been denied for so long. I noted the efforts and documents that went into the presentation by Mike Hull in December 2010. I attached a timeline and a copy of the Rotella email to Ham Ghaffari and Mike Hull. I sent subsequent emails, seeking a reply; Jay Barrett eventually acknowledged, but never really responded to my questions. [email 2/2/12.0955]
February 2, 2012:The ‘Unilateral Remedy’ letter, as created by Bobby Rodriguez. Within this 5-page letter, Bobby Rodriguez referred to recent communications with NATCA. He also presented the following main points: [F12-7293,p55-59]
a copy of the list of four witnesses NATCA had thus far proposed (Lewis, Andy Richards, Glen Rotella, and Ros Marable);
formal notification that NATCA had failed to meet the 14-day deadline for submitting their witness list, that FAA refused to bend that deadline, and that FAA would protest all witnesses;
notification that key witness Ros Marable was not available due to an undefined schedule conflict;
and, notification that key witness Glen Rotella also was not available, as he had left FAA.
Note that this ‘Unilateral Remedy’ was a Certified Letter dated 2/2/12, though this appears to be the date it was drafted, not the date it was sent. The Certified Letter number is incorporated into the actual letter, and the USPS.com Track & Confirm function shows this letter was delivered to Arbitrator Lindauer, at zip 97205, on Friday 2/10/12 at 11:31AM. Thus, it appears the letter was backdated to 2/2/12 (other emails indicate the actual date of this certified letter is most likely 2/7/12).
February 5, 2012:(Sunday) On Saturday, I had received the FOIA Appeal response related to the April 5, 2008 email by Dick Fossier in which he called me a ‘slimeball’ and falsely claimed I had never certified in twenty years. I shared it with Union officials, via a 3:01PM email to Jay Barrett and Mark Wilson. It included: [email 2/5/12.1501]
“…I cannot overemphasize how critical it is, in this case, that no settlement short of ‘being made whole’ (as if nothing ever happened) is acceptable unless that settlement delivers the Due Process I have been denied for the past five years. As I told Mike Hull in late 2010, the Due Process (and the needed closure that can facilitate) is far more important than any dollar figure. Given what I have been through and continue to endure, I think this is a reasonable position. What do you think?”
February 6, 2012:Jay Barrett sent a 6:55AM email reply, saying we would talk later in the afternoon; however, there was never any substantive discussion about the need for a hearing and/or Due Process. [email chain 2/6/12.1811]
“Jeff – Will get back to you this afternoon. Discussions are ongoing. Please keep in mind that we will consult with you on a settlement, but this grievance belongs to the Union and it will decide on how best to move with it. – Jay”
February 7, 2012:
I had a long phone conversation with Mark Wilson. Jay Barrett was also on the line (supposedly), but did not participate. After this 90-minute conversation, I sent a summary in a 1:16PM email to Jay Barrett and Mark Wilson, with additional key records attached, as requested by Mark Wilson. There was no reply, so I sent a similar email again on February 8th. [email 2/7/12.1316]
February 7, 2012:Bobby Rodriguez sent a 3:09PM email to Jay Barrett and Sarah Seaborne, with cc’s to Monique France, Aletha Hicks-Moffatt, Dan Castrellon, and Michael Valencia. He attached a copy of his 5-page ‘Unilateral Remedy’. [F12-7293,p55-59]
“Good afternoon Jay – As stated during our conversation on Friday, February 3, 2012, I am forwarding you the attached formal notice regarding Management decision to unilaterally implement what we believe to be the appropriate remedy for the grievance that is scheduled for hearing on February 16, 2012, before Arbitrator Lindauer. I have also included Arbitrator Lindauer in this email so that he may be aware of Management’s unilateral decision. If you have any questions regarding this particular subject matter, please contact me at the office number provided below.”
See 2/2/12 for details about the ‘Unilateral Remedy’ letter. Also, note that USPS Track & Confirm shows delivery of Lindauer’s copy at 11:31AM on 2/10/12, under Certified Mail #7010-1870-0000-1199-5498.
February 9, 2012:Still no reply from the Union, so I followed with another short email at 12:55PM, asking for an update. Union (again) did not reply. [email 2/9/12.1255]
“Please advise the status on next week’s arbitration. It was indicated when we last talked that we would be talking more this week, but I have heard nothing further from NATCA. Please also advise: (1) who is scheduled or possible for witnesses? (2) can/will NATCA request any records from Agency? (3) what can I do to help ensure we are ready? Thanks, Jeff”
February 9, 2012:
Bobby Rodriguez sent a 3:48PM email to Jay Barrett, but he failed to attach the settlement draft he had pre-signed. Jay Barrett replied with a 4:20PM email. The attachment would not be sent until the next day. [email chain 2/10/12.1356]
February 9, 2012:
I sent a 6:44PM email to Ham Ghaffari. I forwarded a detailed 6:41PM email I had just sent to David Grizzle, Teri Bristol, Kathryn Vernon and many others. I compiled the latest FOIA Appeal records into a concise summary of FAA failures related to my case. I shared these with the many FAA officials, trying once again to nudge a diplomatic resolution. In my email to Ham Ghaffari, I noted he had been involved in all of this, was aware of the details, thus should see the latest summary sent to the FAA officials. I encouraged Ham Ghaffari to share it with the NATCA advocates on my arbitration team. [email 2/9/12.1844]
February 10, 2012:I sent a 6:39AM email, noting the need to finalize my travel plans. Jay Barrett sent a reply at 7:44AM: [email chain 2/10/12.0744]
“…Jeff, please stand by. Mark and I will give you a call later today. Jay”
No call was received. Instead, six hours later, I received a copy of the draft settlement Union wanted to accept.
February 10, 2012:
Aletha Hicks-Moffatt sent an 8:11AM email, advising she would have the scanned Settlement Agreement sent later in the day. That was done via a 12:36PM email. [email chain 2/10/12.1356]
February 10, 2012:
Mark Wilson forwarded the entire email chain to me via a 1:56PM email. This was the first I saw of the settlement proposal. It was Friday afternoon. [email chain 2/10/12.1356]
February 12, 2012:At the end of the weekend (late Sunday night), I emailed Jay Barrett and Mark Wilson at 11:21PM, with a complete redraft of the proposed settlement agreement, which removed my signature line and added: [email 2/12/12.2321]
“…I cannot sign any settlement agreement, and would not even sign this draft. But if the Union is going to ‘settle with the Agency and shut down this grievance – which is my best chance at achieving justice and a fair closure on this affair, I would ask you at least try to approach my terms….”
I also attached a color PDF showing the dozens of Agency and Union officials involved in this case. Lastly, I proposed we finalize our list of arbitration witnesses.
February 13, 2012:Mark Wilson sent me a 10:28AM email with the final version of the settlement, as agreed to by the Union, against my many protests. [email 2/13/12.1028]
“Here is the final deal. We’ve gotten everything we could. Included is your request to place a letter in your file and to get a check, not a bank deposit.”
February 13, 2012:
I sent an 11:42AM email reply, with CC’s to other Union officials (Jay Barrett, Anna Jancewicz, Mike Hull, Ham Ghaffari, David Caldwell, Barry Krasner). I explained in detail why we needed to continue to an arbitration hearing. “I do feel we need to say no to this unacceptable settlement. This case needs to go to arbitration, and I believe that our Union has a Duty of Fair Representation that compels this action….”
I also noted that one of the only rights I retained at my MSPB forced ‘settlement’ was my right to proceed with this grievance arbitration, and, “…now, if you sign away my right to this arbitration, I never really had that right, did I? All because the Union is working with the Agency on this settlement, without proper consideration of the grievant and the Union membership….”
Union never responded. [email 2/13/12.1142]
February 14, 2012:Jay Barrett sent a 6:51AM email with a copy of the signed settlement agreement. [email 2/14/12.0651]
“…as you can see, we have recovered virtually everything economically that was requested in the remedy section of the grievance. While the Union completely understands your position, we have to evaluate and process this grievance on its individual and unique merits. The Union strongly believes that the attached settlement is a good resolution of the grievance….”
February 20, 2012:I sent an 11:57AM to Jay Barrett, noting that I was never really involved in this settlement, and I had made it clear I do not accept it. [email chain 2/21/12.1327]
“…the more I look at this, the more clearly I see that NATCA abandoned this arbitration. My concerns were ignored by the Union. This same Union has spent thousands arbitrating lesser grievances, yet did essentially nothing with my grievance. Three and a half years, a career stolen, and the Union chooses a course that protects the Agency from accountability…..”
February 21, 2012:Jay Barrett sent a 1:27PM email, confirming my mailing address for the check. He added: [email chain 2/21/12.1327]
“…we have discussed with you all the reasons that the Union chose to settle this grievance. Moreover, I won’t be interpreting anything that you hypothesized about in your email, nor will I be providing you any advice concerning any of your rights. I am sorry you are not satisfied with the excellent settlement we managed to secure for you….”
I have read and had an opportunity to correct this affidavit consisting of 28 pages, including this page, and affirm, under the pain and penalty of perjury, the facts asserted are true and correct to the best of my knowledge and belief. (signature)