NFFE ARBITRATION WIN IN THE TIME OF #METOO
Although there has been a seismic shift on the media’s and public’s willingness to believe and support those reporting sexual harassment, it will be a while before we know how the #Metoo mindset is impacting accused employees defending themselves. NFFE just clobbered the U.S. Forest Service with some highly skilled legal representation of a member, winning reinstatement, back pay, interest, and attorney fees. It is just one case, but it is a vivid example of why Forest Service employees need to join and support their union. The Forest Service removed a NFFE member on the very vague charge of Conduct Unbecoming a Federal Employee. According to MSPB that requires proving he engaged in conduct which was “improper, unsuitable or detracted from the appellant’s character or reputation.” He helped run a Job Corps camp and there were allegations that his arm brushed against a female student’s chest one day, he put his hand on the shoulders of another student another day and that he lingered in the dorm rooms at night with a flashlight. Sounds bad, right?
But NFFE’s General Counsel, Jeff Friday, and co-counsel Rene Catalano with decades of experience defending federal employees, methodically took the agency’s case apart step by step—setting a benchmark for all federal employee unions.
First, NFFE Counsels convinced the arbitrator to exclude some specifications that were five years old, previously investigated, and not acted on by management at the close of that investigation. Similarly, they rendered useless an agency allegation of the employee’s misbehavior by noting that the manager who was present during the incident never warned or criticized the employee at the time. (If managers do not have the courage or wits to address unacceptable behavior when they see it they cannot expect an arbitrator to hold the employee accountable absent very unusual circumstances.)
Second, NFFE’s legal team fatally undermined the agency’s use of only written student allegations against the employee in lieu of having any of students testify at the arbitration. Counsel pointed out that several statements were notarized by the agency investigator but never signed by the students and that many contained suspiciously identical spelling, grammar and stylistic errors. The arbitrator gave those statement no weight after NFFE shredded their credibility. The arbitrator was not going to rely on them without giving the union to cross examine each student, even though the agency made very sophisticated arguments about the legal exceptions to the hearsay rule.
Third, the union highlighted that the Forest Service rules did not prohibit the conduct it accused the employee of engaging in. The rules prohibited “dating or sexual or intimate relationships with students or placing yourself in compromising situations with students.” But the employee was never accused of doing any of that. Moreover, if those are the actions prohibited, it is fair for employees to conclude other contact between students and staff was acceptable.
Fourth, NFFE undercut the agency allegation that the employee lingered in dorms rooms with a flashlight by pointing out that it was his job to conduct bed checks and to wake students before sunrise for KP duty. Duhhhhh! Did you ever try to wake a teenager without lingering until they had feet on the floor? The union also undermined the agency’s complaint that the employee had told a student one day she looked pretty by pointing to his position description which required him to reinforce proper grooming among the students.
Fifth, Jeff and Rene shined a bright light on the agency’s own Table of Penalties which limited the first offenses of this nature to between reprimand and 14 day suspension. The agency had removed this employee for a first offense.
Finally, NFFE’s legal counsel focused the arbitrator on the employee’s official appraisal covering the period in question because it was complimentary of the employee.
NFFE’s defense was a textbook example of how to defend an accused employee in these situations that other unions would be wise to copy. It is also a great explanation why Forest Service employees should join and support NFFE. No one knows when a co-worker or member of the public will accuse us of something that sounds terrible. Finding a capable private lawyer and putting down a $25,000 deposit for his/her help will be impossible for most employees when that occurs. Access to union legal help is something managers do not have.