Petition for Writ of Certiorari — Department of Transportation v. Fitzgerald

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In the Supreme Court of the Unitewrsergegxn

OCTOBER TERM, 1986

DEPARTMENT OF TRANSPORTATION,

FEDERAL AVIATION ADMINISTRATION, PETITIONER

Vv.

DAVID A. FITZGERALD, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

CHARLES FRIED

Solicitor General

RICHARD K. WILLARD

Assistant Attorney General

LOUIS R. COHEN ~

Deputy Solicitor General

ROBERT H. KLONOFF

Assistant to the Solicitor General

DAVID M. COHEN

SANDRA P. SPOONER

STEPHEN J. MCHALE

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether four air traffic controllers, who were dismissed

for being absent from work without authorization during

an illegal strike, were entitled to “official time” under 5

U.S.C. 7131(a), and were therefore not subject to

dismissal, on the ground that notwithstanding the ongoing

strike and the absence of negotiations they were “repre-

senting an exclusive representative in the negotiation of a

collective bargaining agreement.”

(I)

II

PARTIES TO THE PROCEEDING

Petitioner is the Department of Transportation, Federal

Aviation Administration. Respondents are David Fitz-

gerald, William Sedgwick, Max Winter, and Carl Vaughn.

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Anderson v. Department of Transportation, 735 F.2d 537

(Fed. Cir.), cert. denied, 469 U.S.1018 (1984) ......... ye

Bureau of Alcohol, Tobacco and Firearms vy. Federal

Labor Relations Authority, 464 U.S. 89 (1983) ....... 4,5

FAA VY. FAICO, 1F.L.R.A. 34 (1961) ............5, 6, 13, 14

PATCO vy. Federal Labor Relations Authority, 685 F.2d

a ek as be kwik ese 6

Schapansky v. Department of Transportation, 735 F.2d

477 (Fed. Cir.), cert. denied, 469 U.S. 1018 (1984) ..... 5, 6

United Federaffion of Postal Clerks v. Blount, 325 F.

Supp. 879 (D.D.C.), aff'd mem., 404 U.S. 802 (1971) .. 13

Statutes and regulation:

Civil Service Reform Act of 1978, Pub. L. No. 95-454,

Tit. VII, 92 Stat. 1191, 5 U.S.C. (& Supp. III) 7101 er

eee Gh Nae Seen yet eed ur essa dvsstaees 3

IV

Statutes and regulation — Continued: Page

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Third Urgent Deficiency Appropriation Act, Pub. L.

No. 79-419, § 201, GO HME, BOGE occ cc weceees 11

Pub. L. No. 84-330, § 1, 69 Stat. 624 (formerly codi-

fied at 5 U.S.C. (Supp. II] 1956) 118p) .............. 1]

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Exec. Order No. 10988, 3 C.F.R. 521 (1959-1963

CR ons ck da x ds doin teks Uae han PATO ae oR 3

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Sohkrsensenste se Hehehe enskeube ses

—

—

Miscellaneous:

124 Cong. Rec. 29189-29190 (1978) .. 2... ccc cee ees 12

17 Weekly Comp. Pres. Doc. 845 (Aug. 3, 1981) ........ 7

TET CF

Jn the Supreme Court of the Cnited States

OCTOBER TERM, 1986

No.

DEPARTMENT OF TRANSPORTATION,

FEDERAL AVIATION ADMINISTRATION, PETITIONER

V.

DAVID A. FITZGERALD, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

The Solicitor General, on behalf of the Department of

Transportation, Federal Aviation Administration, peti-

tions for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Federal Circuit.

OPINIONS BELOW

The opinion of the court of appeals (App., /fra,

la-10a) is reported at 798 F.2d 461. The August 1, 1984,

opinion of the Merit Systems Protection Board (the

MSPB) (App., infra, 14a-21a) is reported at 22 M.S.P.R.

343 (1984). The MSPB’s November 10, 1983, opinion

(App., infra, 24a-3la) is reported at 18 M.S.P.R. 254

(1983). The four decisions of the presiding MSPB ofticials

(App., infra, 32a-64a) are unreported.

JURISDICTION

The judgment of the court of appeals (App., i/ra, 11a)

was entered on August 8, 1986. A petition for rehearing

was denied on October 3, 1986 (App., infra, 12a). On

December 24, 1986, Chief Justice Rehnquist entended the

(1)

2

time within which to file a petition for a writ of certiorari

to and including February 2, 1987. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

STATUTORY PROVISIONS INVOLVED

1. 5 U.S.C. 7103(a) provides in pertinent part:

* * * * *

(12) “collective bargaining” means the perfor-

mance of the mutual obligation of the representative

of an agency and the exclusive representative of

employees in an appropriate unit in the agency to

meet at reasonable times and to consult and bargain

in a good-faith effort to reach agreement with respect

to the conditions of employment affecting such

employees and to execute, if requested by either par-

ty, a written document incorporating any collective

bargaining agreement reached, but the obligation

referred to in this paragraph does not compel either

party to agree to a proposal or to make a concession;

*” /” /*” * *

2. 5 U.S.C. 7131 provides in pertinent part:

(a) Any employee representing an_ exclusive

representative in the negotiation of a collective

bargaining agreement under this chapter shall be

authorized official time for such purposes, including

attendance at impasse proceeding, during the time the

employee otherwise would be in a duty status. The

number of employees for whom official time is

authorized under this subsection shall not exceed the

number of individuals designated as representing the

agency for such purposes.

3. § U.S.C. 7311 provides in pertinent part:

An individual may not accept or hold a position in

the Government of the United States or the govern-

ment of the District of Columbia if he—

*x * * ” *

ee oe

3

(3) participates in a strike, or asserts the right to

strike, against the Government of the United States or

the government of the District of Columbia; or

(4) is a member of an organization of employees of

the Government of the United States or of individuals

employed by the government of the District of Co-

lumbia that he knows asserts the right to strike |

against the Government of the United States or the

government of the District of Columbia.

4. 180U.S.C. 1918 provides in pertinent part:

Whoever violates the provision of section 7311 of

title 5 that an individual may not accept or hold a

position in the Government of the United States or

the government of the District of Columbia if he—

* * * * *

(3) participates in a strike, or asserts the right to

strike, against the Government of the United States or

the government of the District of Columbia; or

(4) is a member of an organization of employees of

the Government of the United States or of individuals

employed by the government of the District of Co-

lumbia that he knows asserts the right to strike

against the Government of the United States or the

government of the District of Columbia;

shall be fined not more than $1,000 or imprisoned not

more than one year and a day, or both.

STATEMENT

1. Title VII of the Civil Service Reform Act of 1978

(the Act), Pub. L. No. 95-454, 92 Stat. 1119, 5 U.S.C. (&

Supp. Ill) 7101 et seq., established a comprehensive

statutory scheme governing federal labor-management

relations.' In enacting the legislation, Congress con-

' Title VII replaced the federal labor relations program created in

1962 by Executive Order No. 10988, 3 C.F.R. 521 (1959-1963 Comp.).

4

cluded that it was in the public interest to allow federal

employees to organize, bargain collectively, and participate

in labor organizations (5 U.S.C. 7101(a)). Title VII explicit-

ly protects the rights of such employees “to form, join, or

assist any labor organization, or to refrain from any such

activity” (5 U.S.C. 7102). To facilitate collective bargain-

ing, the Act provides that union representatives engaged in

“the negotiation of a collective bargaining agreement” are

entitled to “official time” for that purpose “during the time

[they] otherwise would be in a duty status” (5 U.S.C.

7131(a)). Certain management decisions are excluded from

the scope of negotiations, but an agency must bargain over

the procedures by which these reserved management rights

are exercised (5 U.S.C. 7106). The Act also provides that

the failure to bargain in good faith is an unfair labor prac-

tice (5 U.S.C. 7116(a)(5) and (b)(5)), and the Federal Labor

Relations Authority (FLRA) was established to supervise

the collective bargaining process (5 U.S.C. (& Supp. III)

7104, 7105). In addition, the Act provides for arbitration, if

necessary (5 U.S.C. (& Supp. IID) 7121, 7122), and it creates

a Federal Service Impasses Panel to assist in resolving dif-

ferences (5 U.S.C. 7119). See generally Bureau of Alcohol,

Tobacco and Firearms (BATF) v. Federal Labor Relations

Authority, 464 U.S. 89, 91-92 (1983).

At the same time, however, Congress took note of the

“special requirements and needs of the Government,” and

it directed that the Act “be interpreted in a manner consis-

tent with the requirements of an effective and efficient

Government” (5 U.S.C. 7101(b)). Most significantly for

present purposes, Congress reinforced provisions of

Certain federal employees, including members of the military and

Foreign Service, and certain agencies, including the General Ac-

counting Office, the Federal Bureau of Investigation, and the Central

Intelligence Agency, are excluded from coverage under Title VII (see 5

U.S.C. 7103(a)(2) and (3)).

5

existing law? that made it clear that strikes by federal

employees are prohibited. For example, the Act defines

“employee” to exclude any person who participates in a

strike against the federal government (5 U-S.C.

7103(a)(2)(v)), and it defines “labor organization” to ex-

clude any organization that participates in or calls such a

strike (5 U.S.C. 7103(a)(4)(D)). In addition, calling, par-

ticipatin, in, or condoning a strike is an unfair labor prac-

tice (5 U.S.C. 7116(b)(7)), and a union that willfully

violates Section 7116(b)(7) may no longer serve as an ex-

clusive bargaining agent (5 U.S.C. 7120(f)); see generally

BATF, 464 U.S. at 92; FAA v. PATCO, 7 F.L.R.A. 34,

36-39 (1981).

2. Respondents were air traffic controllers who were

among the over 11,000 controllers removed in 1981 by the

Federal Aviation Administration (FAA) for participating

in an illegal strike called by their union, the Professional

Air Traffic Controllers Organization (PATCO). In addi-

tion, they were four of the eleven PATCO regional

representatives? whose function was to review and ap-

prove a collective bargaining agreement prior to its sub-

mission to the rank and file for a vote. App., infra, la-2a;

see Schapansky v. Department of Transportation, 735

F.2d 477, 481 & n.4 (Fed. Cir.), cert. denied, 469 U:S.

1018 (1984).

Prior to August 1, 1981, PATCO and the FAA had been

engaged in negotiations looking toward a collective

bargaining agreement, but the negotiations had become

? F.g., 5 U.S.C. 7311(3) and (4) (prohibiting from government

employment any person who strikes against the government or who

belongs to an organization of government employees that he knows

asserts the right to strike against the government); 18 U.S.C. 1918(3)

and (4) (making violation of 5 U.S.C. 7311(3) and (4) a criminal of-

fense).

> Vaughn represented the eastern region, Winter the central region,

Sedgwick the southern region and Fitzgerald the Pacific region (App.,

infra, 2a n.2).

6

deadlocked. On that day, the Secretary of Transportation

requested that PATCO’s negotiating team report to

Washington, D.C., to resumé negotiations. Each respond-

ent thereafter left for Washington after being told to do so

by union officials. None of the four respondents obtained

agency authorization for his absence. App., infra, 2a, 17a.4

On August 3, 1981, PATCO called upon its members to

engage in a nationwide strike beginning at 7:00 a.m. east-

ern daylight time (App., infra, 14a, 41a). PATCO’s pur-

pose in calling the strike was, in the absence of “prompt

governmental capitulation,” to “inflict harm of the highest

magnitude” upon the airline transportation system, to in-

convenience the public, to harm the national economy,

and “to place at risk the public safety” (Schapansky, 735

F.2d at 484; see App., infra, 2a (citing Schapansky as the

case setting out the “basic facts” of the strike)).°

At 11:00 a.m. eastern daylight time on August 3, 1981,

the President of the United States stated that air traffic

controllers who had not reported to work were “in viola-

tion of the law” and announced that if they failed to return

to work within 48 hours “they [would] forfeit[] their jobs

and [would] be terminated” (App., infra, 41a). The

Secretary of Transportation, who was with the President

+ Respondents Fitzgerald, Winter, and Sedgwick did not contend to

the MSPB that their absences during the strike were officially

authorized by the agency (App., infra, 16a). In fact, Winter was con-

tacted by his supervisor on August 2, 1981, and was directed to report

for duty (ibid.). He did not advise his supervisor that he intended in-

stead to travel to Washington at his union’s request (/d. at 16a-17a).

Only respondent Vaughn claimed to have received his agency’s ap-

proval for his absence during the strike, but the MSPB found, as a

factual matter, that the FAA did not authorize his absence (/d. at 17a,

37a).

5 Between August 3, 1981, and August 8, 1981, 26,000 flights were

cancelled and 23 air traffic control facilities were closed (see PATCO

v. Federal Labor Relations Authority, 685 F.2d 547, 551 n.4 (D.C.

Cir. 1982); FAA v. PATCO, 7 F.L.R.A. 34, 41 (1981)).

Se

5

at the time of the announcement, added that there would

be no negotiations with the union while the strike con-

tinued. Also on August 3 the FAA announced that it

would only negotiate with people who were on the job

working as controllers. The FAA subsequently im-

plemented the President’s 48-hour announcement by send-

ing a notice of proposed removal to each controller who

failed to report for duty on his first scheduled shift after

11:00 a.m. eastern daylight time on August 5, 1981. As a

result, over 11,000 controllers, including respondents,

were removed from their positions by the FAA. /7d. at 2a,

3a, 9a n.ll, 19a, 33a; Anderson v. Department of

Transportation, 735 F.2d 537, 539 (Fed. Cir.), cert.

denied, 469 U.S. 1018 (1984); 17 Weekly Comp. Pres.

Doc. 845, 846, 848 (Aug. 3, 1981).

3. Each respondent appealed his removal to the

MSPB, arguing, inter alia, that his absence from work

stemmed from his participation in collective bargaining

negotiations and that he was therefore entitled to “official

time” under 5 U.S.C. 7131(a). After evidentiary hearings,

four different MSPB presiding officials, in separate deci-

sions, rejected respondents’ defenses on the ground that

respondents did not follow the proper procedures for re-

questing leave.®

Respondents sought review by the full MSPB.:-In a con-

solidated decision issued on November 10, 1983, the ,

_ MSPB reversed the decisions of the four presiding officials

(App., infra, 24a-3la). It first ruled that there were no

specified procedures for requesting official time to repre-

sent one’s union in collective bargaining (/d. at 27a). Rely-

ing on the fact that the Secretary of Transportation had re-

quested on August | that PATCO representatives be in

® Each of the four decisions involved a large number of air traffic

controllers and raised numerous issues that are not relevant here; we

have reproduced only those portions of the opinions that pertain to

this case (App., infra, 32a-64a).

8

Washington for collective bargaining, the MSPB then held

that respondents were, at the various times at which they

failed to report for work after 11:00 a.m. on August 5,

1981, engaged in representing PATCO in collective

bargaining and were therefore not subject to dismissal for

failing to report to work (id. at 27a-29a).

On May 11, 1984, the MSPB reopened the case and re-

quested additional briefing (App., infra, 22a-23a).’? On

August 1, 1984, the MSPB issued a new decision vacating

its earlier ruling and sustaining respondents’ removal (id.

at 14a-21a). The MSPB held that respondents were not en-

titled to official time under 5 U.S.C. 7131(a) for two

reasons. First, it found that respondents were participants

in the strike and that they would have stayed away from

work even had they not been in Washington (App., infra,

18a-19a). Reasoning that Section 7131(a) only authorizes

leave for persons who “otherwise would be in a duty

status,” it ruled that respondents did not qualify (App., in-

fra, 18a-19a). Second, the MSPB held that respondents

were not, at the times at which they failed to report,

engaged in collective bargaining, and hence were not en-

titled to official leave under Section 7131(a) (App., infra,

19a). The MSPB took official notice of the fact that PAT-

CO itself had acknowledged that the FAA had stated its

unwillingness to bargain during a strike and had charged

the FAA with an unfair labor practice for refusing to

bargain after the strike had begun (ibid.). Noting that

respondents were “claim[ing] an entitlement to official

7 In ordering rehearing, the MSPB indicated (App., infra, 22a-23a)

that it wanted to reconsider its decision in light of this Court’s BATF

decision and in light of the FLRA General Counsel’s determination

that the FAA’s duty to participate in collective bargaining had been

suspended because of the PATCO strike. The MSPB stated (id. at

22a) that it was rehearing the case on its own motion and that it was

denying the government’s request to file a petition for reconsideration

out-of-time.

9

leave for their role in negotiations which the union alleged

were not being conducted” (ibid.), the MSPB ruled that

the concept of collective bargaining did not include time

spent “waiting to see if the agency could be compelled or

coerced into once again dealing with the union” (id. at

19a-20a).®

4. Respondents sought review by the United States

Court of Appeals for the Federal Circuit. On August 8,

1986, a panel of that court reversed the MSPB (App., in-

Sra, \a-10a), holding that respondents were engaged in col-

lective bargaining and that this conduct entitled them to

official time under 5 U.S.C. 7131 and Article 8(1) of the

FAA/PATCO collective bargaining agreement.’ The

court reasoned that although respondents “were not in-

volved in formal (across the table) negotiations with the

FAA” during the strike, “PATCO remained the collective

bargaining representative until October 1981” (App., in-

Sra, 9a (footnote omitted)). The court noted (id. at 10a)

that respondents had to ratify any proposed collective

bargaining agreement before it could be submitted to the

rank and file union members and that “[i]f [respondents]

§ In addition, the MSPB noted (App.., infra, 17a) that the failure of

respondents and the union to follow normal procedures for requesting

leave was inconsistent with respondents’ claim that they were on ap-

proved leave and was “more consistent with a finding that

[respondents] left their duty stations when the strike was imminent, in-

tending to withhold their services during the strike, should it occur, in

concert with others.”

® Article 8(1) provided that “Union officials who are elected or

selected to serve in an official capacity as a representative of the Union

shall be entitled to a leave of absence for their terms of office or ap-

pointment” (App., infra, Sa n.7). Notwithstanding its ruling that Sec-

tion 7131 and Article 8(1) authorized respondents’ actions, the court

treated the statutory issue as the “core issue” (App., infra, 4a (foot-

note omitted)). The court apparently concluded that unless respond-

ents met the requirements of Section 7131(a), then they were not serv-

ing “in an official capacity” as union representatives.

10

had gone back to their home bases, the Union would have

been unable to settle the strike because the strike ratifica-

tion mechanism would not have been available.” Further-

more, the court reasoned, even though the FAA had in-

dicated that it would not negotiate during a strike,

“(respondents] met with interested representatives of both

the executive branch and Congress in a futile attempt to

end the strike” (ibid.). The court concluded that “[i]n these

circumstances, it was clearly not the intent of Congress

that the negotiators for the representative Union must go

home and discontinue talks with FAA after the strike was

called” (ibid.).'°

The court subsequently denied the government’s peti-

tion for rehearing and suggestion for rehearing en banc

(App., infra, 12a, 13a).

REASONS FOR GRANTING THE PETITION

Congress has unequivocally banned strikes by federal

employees, making participation in such a strike a

criminal act and excluding unions and individuals who

participate in such strikes from the very definitions of

“labor organization” and “employee” and hence from the

protection of federal labor relations law. The Federal Cir-

cuit nevertheless ruled that respondents, who chose not to

report to work but to remain in Washington after the

deadline announced by the President had passed, were en-

titled to official leave, because they were engaged in

representing a labor organization in the negotiation of a

collective bargaining agreement, even though (i) that

union had called the illegal strike, (ii) both the employing

‘0 The court also said that since respondents were engaged in collec-

tive bargaining, it was “irrelevant” whether they would have reported

to work had they not been involved in such activity (App., infra, 7a

n.9).

&

i

a

&

be

11

agency and the Secretary of Transportation had clearly in-

dicated that no negotiations would occur until the strike

ended, and (iii) no negotiations in fact took place. That

ruling was plain error.

The error is important. Although federal employee

strikes are infrequent, they can have devastating effects,

including the disruption of essential services. Striking is in-

herently a collective activity: each federal employee who,

without proper excuse, fails to report to work during a

strike contributes materially to the strike’s effectiveness.

By erroneously excusing four representatives of the union

that called a highly visible illegal strike, the decision below

obscures what should be a clear message to federal employ-

ees: when an illegal strike has been called, their sole duty

under federal labor relations law is to report to work.!!

1. Federal employees have long been prohibited from

striking.'? Under 5 U.S.C. 7311(3), a person who “par-

ticipates in a strike, or asserts the right to strike, against

the Government of the United States” may not “accept or

hold a position in the Government of the United States.”!3

Accepting or holding such a position in violation of Sec-

tion 7311(3) is a criminal offense (18 U.S.C. 1918(3)).

'' If the court of appeals’ decision is permitted to stand,

respondents — leaders of the union that called the strike—will be en-

titled to be reinstated and will receive substantial awards of back-pay,

estimated by the FAA to be approximately $250,000 per respondent

before taxes and other set-offs.

'2 The first statutory ban on striking by federal employees was

enacted in 1946 as a rider to an appropriations bill. Third Urgent De-

ficiency Appropriation Act, Pub. L. No. 79-419, § 201, 60 Stat.

268-269. That provision prohibited the payment of salaries or wages

to anyone who engaged in a strike against the government.

'3 Section 7311(3) was originally enacted in a similar form in 1955.

Pub. L. No. 84-330, § 1, 69 Stat. 624, formerly codified at 5 U.S.C.

(Supp. III 1956) 118p.

12

Federal law also requires all government employees to take

an oath that they will not strike against the government (5

U.S.C. 3333(a)).

In the Civil Service Reform Act, Congress made it clear

that the strike has no legitimate place whatever in federal

labor relations. First, it is an unfair labor practice for a

federal employee union to call, participate in, or condone

a strike (5 U.S.C. 7116(b)(7)), and the FLRA is required to

decertify a union that willfully engages in such activity (5

U.S.C. 7120(f)). Even more fundamentally, the Act

defines “labor organization” to exclude “an organization

which particivates in the conduct of a strike against the

Government or any agency thereof or imposes a duty or

obligation to conduct, assist, or participate in such a

strike” (Section 7103(a)(4)(D)), and the Act defines

“employee” to exclude “any person who participates in a

strike in violation of section 7311 of this title” (Section

7103(a)(2)(v)). These statutory provisions deprive striking

unions and individuals of any protection under federal

labor relations law.'*

'4 The legislative history of Section 7103(a)(2)(v) underscores Con-

gress’s strong opposition to striking by public employees. That limita-

tion on the term “employee” was originally introduced as an amend-

ment by Congressman Rudd (124 Cong. Rec. 29189-29190 (1978)). In

explaining the purpose of his amendment, Congressman Rudd in-

dicated (id. at 29190) that it was designed to “remove any doubt”

about Congress’s intent with respect to strikes by federal employees by

providing “in clear and unequivocal language that strikes against the

Federal Government are illegal and punishable.” He further stated

that under his amendment, a striking employee “would no longer

enjoy the protections and benefits of [the Act]” (ibid.). In discussing

the evils of public sector strikes, he pointed out that such strikes

“deprive the public of services for which there is no alternative source

of supply” and that some of those services “are so critical that their

disruption threatens the public well-being” (ibid.). He characterized

such strikes as “nothing short of blackmail—the actions of a narrow-

interest group holding public welfare hostage in order to achieve their

own selfish ends” (ibid.).

13

2. The court of appeals should not have accepted

respondent’s argument that they were “representing an ex-

clusive bargaining representative in the negotiation of a

collective bargaining agreement” (5 U.S.C. 7131(a)), while

(and because) they remained in Washington so that they

could be readily available to negotiate if the illegal strike

successfully coerced the government back to the bargain-

ing table. First, there was no “negotiation”: respondents

knew that the government had made it clear that it would

not negotiate until the strike ended, and no negotiation oc-

curred in fact. Second, if respondents had any hope of

negotiations, it was a hope that the illegal strike, called by

the union they were representing, would bring negotia-

tions about: failure to report for duty during an illegal

strike cannot be excused by a hope that the strike will

achieve its objective.

a. By definition, “collective bargaining” in the public

sector requires “a good-faith effort to reach agreement” (5

U.S.C. 7103(a)(12) (emphasis added)). But public

employee strikes are illegal efforts to put political pressure

on the government by subjecting the public to hardship

and inconvenience. See generally United Federation of

Postal Clerks v. Blount, 325 F. Supp. 879, 884 (D.D.C.)

(three judge court), aff'd mem., 404 U.S. 802 (1971).'5

Once PATCO had called such a strike, its representatives

could not claim to be engaged in “good faith efforts” to

negotiate the issues that gave rise to the strike. Unless and

until the strike ended, “collective bargaining,” as defined

in the statute, was simply not possible.

'S As the FLRA explained in its decision decertifying PATCO

(FAA v. PATCO, 7 F.L.R.A. at 60), “[b]y engaging in the strike,

PATCO not only rejected the congressionally prescribed framework

for collective bargaining in the Federal sector but also PATCO at-

tempted to tear that framework apart and replace it with collective

bargaining on PATCO’s own terms in defiance of the public interest.”

14

In any event, respondents had no reason to believe that

negotiations would take piace, and no negotiations did

occur once the PATCO strike began. The FAA made it

clear from the outset that it would not negotiate as long as

the illegal strike continued (App., infra, 2a-3a, 9a n.11).

Indeed, PATCO itself explicitly recognized that there were

no negotiations once the strike commenced and filed an

unfair labor practice charge with the FLRA challenging

the FAA’s refusal to negotiate during the strike (id. at

19a).'© And respondents’ own evidence forecloses any

finding that they were engaged in collective bargaining

after August 3, 1981.!’

'6 The FLRA refused to issue a complaint on that charge because

the FAA had no duty to bargain during the strike (App., infra, 19a).

See also FAA v. PATCO, 7 F.L.R.A. at 60 (recognizing that collec-

tive bargaining ended with the call to strike on August 3, 1981).

'7 At his evidentiary hearing, respondent Sedgwick testified that he

attended no negotiations with the FAA during all of August, and he

gave no explanation as to what he was doing after the strike began

(J.S.A. 239-240) (“J.S.A.” refers to the Joint Supplemental Appendix

filed in the court of appeals). Respondent Winter similarly admitted at

his hearing that he was not personally involved in face-to-face negotia-

tions with FAA officials, athough he indicated that PATCO president

Poli told him that negotiations were continuing ( id. at 151). Respond-

ent Fitzgerald did not testify at all. Only respondent Vaughn spelled

out his own activities in any detail. Vaughn indicated that he met with

members of Congress, members of the news media, a member of

President Reagan’s staff, and certain FAA officials (id. at 91-95,

100-103, 124-125). But Vaughn admitted that he participated in no

negotiations with the FAA on or after August 3 (id. at 119).

Vaughn’s informal discussions with congressional staff, executive

officials, and the media do not constitute “the negotiation of a collec-

tive bargaining agreement” for purposes of Section 7131(a), since the

latter activity is limited to “bargain[ing]” with designated “represen-

tative[s] of [t]he agency” (5 U.S.C. 7103(a)(12); see 5 U.S.C. 7131(a)

(“The number of employees for whom official time is authorized * * *

shall not exceed the number of individuals designated as representing

the agency for such purpose.”)). Similarly, respondents cannot be

deemed to have engaged in collective bargaining on the theory that

‘

}

15

b. The Federal Circuit’s ruling that respondents were

entitled to decide to stand by in Washington! against the

possibility that negotiations would resume runs counter to

the fundamental premise that for federal employees strik-

ing is a wholly illegal collective bargaining tactic. PATCO

could have terminated the strike at any time. Instead, its

representatives remained in Washington, and off the job,

“waiting to see if the agency could be compelled or coerced

into once again dealing with the union” (App., infra,

19a-20a), i.e., in the hope that the strike would succeed in

bringing the FAA to the bargaining table. Failure to report

for duty during an illegal strike cannot be excused by the

possibility that, if the strike achieves its objective, the

employee will ‘hen have duties that will entitle him to of-

ficial leave.

3. Although strikes by federal employees do not occur

often, their consequences may be extremely serious. Con-

gress has therefore made it exceedingly clear that when a

strike occurs, the duty of each federal employee is to not

participate in it. Not participating ina strike means report-

ing for work on schedule in the absence of a valid excuse,

and the Federal Circuit has sustained the dismissals of

more than 11,000 rank and file air traffic controliers who

failed, without valid excuses, to report for their next on-

duty shifts after the President’s deadline. See Anderson,

735 F.2d at 538-539 (citing several cases).

they were “standing by” and waiting for the strike to end. As the

MSPB stated (App., infra, 19a-20a), “[n]o matter how expansively the

concept of negotiating may be interpreted, we do not believe that it

should be extended to cover the stand-by time at issue here during

which, after the illegal strike began, the [respondents] were waiting to

see if the agency could be compelled or coerced into once again deal-

ing with the union.”

'§ There is, of course, no small irony in the implication that, had

respondents left Washington, they would not have been able to return

with sufficient speed should negotiations commence.

16

The Federal Circuit’s decision in this case that leaders of

PATCO had 2 valid excuse, because they were waiting to

see if the government would return to the bargaining table,

is not only in ironic contrast with that court’s proper rejec-

tion of excuses proffered by thousands of rank and file

employees, it also seriously obscures the congressional

message to federal employees. The logic of the decision is

that federal employees may decline to report for work

during an illegal strike if they have some hope that the suc-

cess of the strike itself will vindicate them; that logic

would seriously weaken the deterrent to participation in

future federal employee strikes.'®

'9 The present case does not create an inter-circuit conflict. Indeed,

such a conflict could not arise in light of the exclusive jurisdiction over

appeals from the MSPB vested in the Federal Circuit. 28 U.S.C.

1295(a)(9). Accordingly, an erroneous decision by the Federal Circuit

on the issue in this case will gover i all future cases raising similar

issues unless and until it is corrected by that court or by this Court.

:

f

_

:

\

ee,

17

CONCLUSION

The petition for a writ of certiorari should be granted. 2°

Respectfully submitted.

FEBRUARY 1987

CHARLES FRIED

Solicitor General

RICHARD K. WILLARD

Assistant Attorney General

Louis R. COHEN

Deputy Solicitor General

ROBERT H. KLONOFF

Assistant to the Solicitor General

DAVID M. COHEN

SANDRA P. SPOONER

STEPHEN J. MCHALE

Attorneys

20 Since Congress’s explicit ban on striking by federal employees is

dispositive in this case, the Court may wish to consider summary

reversal.

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL’CIRCUIT

Appeal No. 85-1833

MSPB Docket Nos. SE075281F0271, AT075281F2497

PH075281F1084, DE075281F0642

DAVID A. FITZGERALD, ET AL., PETITIONERS,

V.

DEPARTMENT OF TRANSPORTATION,

FEDERAL AVIATION ADMINISTRATION, RESPONDENT.

DECIDED: August 8, 1986

Before RICH and DAVIS, Circuit Judges, and COWEN,

Senior Circuit Judge.

DAVIS, Circuit Judge.

This appeal is from a reconsideration decision of the full

Merit Systems Protection Board (MSPB or Board),' over-

turning an earlier full Board Opinion in this case, and

ultimately sustaining the removal of the four petitioners

by the Department of Transportation, Federal Aviation

Administration (FAA), from their positions as air traffic

controllers, for participating in the illegal nationwide Pro-

fessional Association of Air Traffic Controllers (PATCO)

strike in 1981 and being absent without leave during that

period. We reverse because petitioners were neither

strikers nor absent without leave for the duration of the

' Fitzgerald vy. Department of Transportation, MSPB_ No.

SE075281F0271 (Aug. 1, 1984).

(la)

2a

strike; rather, they were on authorized leave as members

of PATCO’s national negotiating team in Washington,

oAs.

The basic facts of the PATCO strike are set forth in

Schapansky v. Department of Transportation, FAA, 735

F.2d 477 (Fed. Cir.), cert. denied, 105 S. Ct. 432 (1984).

Each petitioner in this appeal was a regional representative

of PATCO’s national negotiating team. PATCO policy

required that a majority of the regional representatives ap-

prove a proposed collective bargaining agreement before it

could be submitted to the full PATCO membership for

ratification.

The record establishes, the earlier full Board decision

found, and the Board’s reconsideration decision did not

challenge, that (1) the Secretary of Transportation re-

quested the presence of the PATCO negotiating team in

Washington, D.C. on August 1, 1981—the day negotia-

tions reconvened; (2) each petitioner received a telephone

call from Dennis Reardon, the chief spokesman for the

negotiating team, and was directed to arrive in

Washington, D.C. on August 2, 1981; (3) all had either

been placed on leave for August 2, 1981, or not charged

with AWOL on that date; (4) all either requested leave or

relied on past practice in which PATCO at the national

level would request leave through the FAA’s national

labor relations office; (5) petitioners always had received

“time-off” without question whenever their attendance

was requested at prior negotiation sessions; (6) although

the FAA announced that on August 3, 1981, no further

negotiations would be conducted (as long as the illegal

2 Carl Vaughn was the eastern regional representative, Max Winter

the central regional representative, William Sedgwick the southern

regional representative, and David Fitzgerald the Pacific regional

representative.

Ari NR

RY GERNOT SREP A WAN

SYN RR a Ari

3a

strike continued), petitioners remained in Washington,

D.C. and actively pursued an end to the strike through

discussions with FAA, other executive and Congressional

representatives; and (7) PATCO in this instance did not

follow its past practice of requesting official leave for the

negotiating team (but the petitioners apparently did not

know that PATCO did not do so).

The FAA charged and found each petitioner guilty of

strike participation and absence without leave. The con-

trollers appealed their removals to the Board. The

presiding officials ruled that the controllers had not

followed the proper procedures to obtain official leave

and that their absences were unauthorized. On appeal, the

full Board, in a decision dated November 10, 1983, re-

versed the initial decisions sustaining the removals. The

Board first noted that “the past practice of the agency was

to grant leave to [petitioners] in accord with 5 U.S.C.

§ 7131(a), and that these [petitioners] were not required to

conform to any specified procedure to obtain such leave.”

The Board next determined whether these individual con-

trollers were in fact “representing PATCO in the negotia-

tion of a collective bargaining agreement.” In this respect,

the Board stated that

other than [one] affidavit, the agency presented no

evidence in support of its contention that appellants

were not authorized members of the negotiating team

in August 1981. Nor did the agency rebut the ap-

pellants’ hearsay evidence that FAA officials had re-

quired the team’s presence in Washington because

past arrangements were made by others, appellants _

had no reason to believe that leave was not authorized

or that arrangements had not been made as they had

- } The FAA charges covered strike participation and absence during

various days between August 3, 1981 and August 11, 1981.

4a

been in the past. Thus, the weight of the evidence sup-

ports a finding that appellants were authorized

representatives of PATCO on the dates charged.

The Board concluded, in that decision, that petitioners

were engaged in “the representation of a collective

bargaining agreement, and that [they] successfully re-

butted the prima facie case presented by the agency.”

Thereafter that first decision was reconsidered sua

sponte by the full Board after the Office of Personnel

Management had belatedly sought rehearing. In its August

1, 1984 reconsideration decision,‘ the full Board sustained

the removals. It held that the agency successfully estab-

lished a prima facie case of striking and that, because peti-

tioners had not shown that they otherwise would have

been in a duty status (and not on strike), they were not en-

titled to leave for official time.

The core issue’ is whether petitioners fall within the

grant of official time found in the relevant statute (5

4 In connection with its determination to reconsider the case, the

Board requested that the parties submit briefs on the following issues:

1. In light of Bureau of Alcohol, Tobacco and Firearms v.

Federal Labor Relations Authority, 464 U.S. 89 (1983), can these

appellants be considered employees who ‘otherwise would be in a

duty status’ in accordance with 5 U.S.C. § 7131(a) during the

periods in question, when they failed to return to work upon

commencement of the strike?

2. In light of the FLRA General Counsel’s determination .

that the agency had not committed an unfair labor practice

because its duty to bargain with the PATCO union was sus-

pended after commencement of the strike, did the Board err as a

matter of law in concluding that appellants should have been car-

ried in ‘official leave’ status as members of the union negotiating

team?

These additional briefs were filed, but there was no new hearing.

5 We need not consider petitioners’ preliminary argument that the

full Board was without authority to reconsider its first decision.

Sa

U.S.C. § 7131). They assert that, on the dates charged,

they were in Washington, D.C. negotiating a collective

bargaining agreement as members of PATCO’s national

negotiating team and were therefore entitled to official

leave pursuant to 5 U.S.C. § 7131(a),® and the terms of the

then existing collective bargaining agreement.’

A prima facie case of striking is established when the

agency shows that an employee was absent without

authorization during a strike of general knowledge.

Schapansky v. Department of Transportation, FAA, 735

F.2d 477, 482 (Fed. Cir.), cert. denied, 105 S. Ct. 432

(1984). We hold, however, that these petitioners were on

authorized leave for the dates charged, pursuant to 5

U.S.C. § 7131(a) and Article 8, § 1 of the then collective

bargaining agreement.

The statute, § 7131(a), declares:

(a) Any employee representing an exclusive repre-

sentative in the negotiation of a collective bargaining

agreement under this chapter sha// be authorized of-

ficial time for such purposes, including attendance at

impasse proceeding, during the time the employee

otherwise would be in a duty status. The number of

® Section 7131(a) of Title 5, United States Code, provides:

Official time

(a) Any employee representing an exclusive representative in the

negotiation of a collective bargaining agreement under this

chapter shall be authorized official time for such purposes, in-

cluding attendance at impasse proceeding, during the time the

employee otherwise would be in a duty status. The number of

employees for whom official time is authorized under this subsec-

tion shall not exceed the number of individuals designated as

representing the agency for such purposes.

’ Article 8, section 1 of the FAA/PATCO collective bargaining

agreement provided that “Union officials who are elected or selected

to serve in an Official capacity as a representative of the Union shall be

entitled to a leave of absence for their terms of office or appointment.

6a

employees for whom official time is authorized under

this subsection shall not exceed the number of in-

dividuals designated as representing the agency for

such purposes.

(Emphasis added.) This legislation expressly mandates

that an employee shall be granted official time (during the

hours that the employee would otherwise be entitled to

salary) if engaged in the negotiation of a collective

bargaining agreement on behalf of a union that is certified

as an exclusive representative. As the Board held in its first

final order, “[t]he mandatory language of the statute com-

pels the authorization of administrative leave; thus, the

agency is devoid of discretion in the granting of such leave

to employees who meet the criteria of the statute.”

This history of § 7131 supports this view. Before the

enactment of the 1978 Civil Service Reform Act, grants of

official time were governed by a series of executive orders.

Some permitted bargaining on “official time” at the agen-

cies’ discretion (Exec. Order No. 10988); others placed a

ceiling on such payments (Exec. Order No. 11616); and

some totally prohibited bargaining on official time even at

the agencies’ discretion (Exec. Order No. 11491). The use

of the mandatory language contained in the Civil Service

Reform Act’s grant of official time “must be viewed

against this background of conflicting and inconsistent

practices.” United States Department of Agriculture v.

FLRA, 691 F.2d 1242, 1251 (8th Cir. 1982) (Heaney, J.,

dissenting), cert. denied, 464 U.S. 1007 (1983).

Moreover, the enacted language of § 7131 was derived

from the House version of the Civil Service Reform Act.

See H.R. Rep. No. 95-1403 (1978). In adopting the House

wording, Congress rejected the Senate version, which pro-

vided official time only to the extent agreed upon by the

negotiating parties. See S. Rep. No. 95-969, p.112 (1978).

As the Supreme Court recognized in Bureau of Alcohol,

Tobacco and Firearms v. FLRA, 464 U.S. 89, 102 (1983)

5

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(BA TF), “Congress . . . adopted the section in its present

form, concluding, in the words of one Congressman, that

union negotiators ‘should be allowed official time to carry

out their statutory representational activities just as

management uses Official time to carry out its respon-

sibilities’.” The Court also interpreted the statutory phrase

“during the time the employee otherwise would be in a

duty status” to mean that “employee negotiators [are] to

be paid as if they were at work, whenever they bargain

during hours they would otherwise be on duty.” /d. at 91.8

If the negotiating session took place during the time period

that the employee was otherwise scheduled to work, the

employee would be entitled to receive compensation for

that period. Conversely, if these representational duties

occurred (for instance) on a weekend when the employee

was not scheduled to work as a controller, there would be

no pay. Thus, if the employee was in fact engaged in

proper representational activities, the only question

evoked by the statutory phrase “during the time the

employee would be in a duty status” is whether that

employee would otherwise have been scheduled, in or-

dinary course, to be paid by his FAA facility.?

§ See BATF, 464 U.S. at 99, in which the Court noted that

“[ajccording to the House Committee that reported the bill containing

§ 7131, Congress used the term ‘official time’ to mean ‘paid time’.”

° The Board’s reconsideration decision erred in holding that that

statutory phrase called upon the Board to decide first whether the peti-

tioners would have been on strike if they were not engaged in

Statutorily representational activities. That turns the statutory inquiry

on its head. The only real question is whether the petitioners were

engaged in statutory collective bargaining. If they were, they were en-

titled to official time except for days that they would not ordinarily

have been scheduled to work as controllers. It is irrelevant whether

they would have participated in the strike if they had not been engaged

in statutory functions.

8a

The agency’s past practice (up to August 1981) on the

grant of official time had been consistent. Regional

representatives of PATCO’s national regulatory team were

never denied leave, and they were never required to follow

set guidelines in obtaining official time. These four peti-

tioners followed that general practice, as we have stated,

and the full Board so held in its first decision. On recon-

sideration, the Board seemed to cast doubt on its prior

holding that petitioners had received authorization to pro-

ceed to Washington, but we think that conclusion is over-

whelmingly required by the evidence, including .he past

practice, the affidavit (from the PATCO president) that

the Secretary of Transportation had insisted that the

PATCO negotiating team come to Washington im-

mediately (August 1, 1981), and the testimony that the

Secretary’s statement had been repeated by union officials

to petitioners. That authorization to come to Washington

was never cancelled.!°

The remaining problem, as stated in the Board’s first

fina! decision, “is whether [petitioners] were, on the dates

charged, representing PATCO in the negotiation of a col-

lective bargaining agreement.” First, did petitioner’s repre-

sent PATCO in Washington? It is undisputed that they

were Official members of PATCO’s national negotiating

team at least through July 1981. On petitioners’ status in

August 1981, the affidavit of PATCO’s Reardon stated

that petitioners were part of the negotiating team during

that month. Robert E. Poli, then president of PATCO,

declared by affidavit that the Secretary of Transportation

“insisted that the PATCO negotiating team be present in

‘0 The Board’s reconsideration decision stated that the Secretary’s

insistence that petitioners come to Washington did not cover post-

strike periods, but there is nothing at all in the record to support that

inference —so long as petitioners were carrying on collective bargain-

ing activities. We discuss, infra, the nature and characterization of

petitioners’ activities while in Washington.

+ SR PuRpt os

PE REI ha et Binoy

WS ace

en

Ne eee =e

9a

Washington, D.C. immediately [August 1] to ratify any

tentative settlement that may be reached.” The agency did

not rebut petitioners’ contention that the Secretary of

Transportation requested their presence in Washington,

D.C. And, although the affidavit of Edward V. Curran

(Director, Office of Labor Relations, FAA) said that

negotiating sessions with the full PATCO team were not

held during August 1981, he also declared that negotia-

tions resumed July 31, 1981 between national represen-

tatives of PATCO and the FAA. Based on the record and

the fact that the presence and participation of the national

team was required before any tentative agreement could be

presented to the rank and file, the Board’s apparent deci-

sion ‘(on reconsideration) that petitioners were not

authorized representatives of PATCO, on the August

dates charged in the removal proceedings, is not supported

by substantial evidence.

The second and crucial issue is the nature of petitioners’

role in Washington, D.C. during August 1981. The con-

trollers admit that they were not involved in formal (across

the table) negotiations with the FAA.'! However, PATCO

remained the collective bargaining representative until Oc-

tober 1981. If the strike had been settled in August,

PATCO would have to be dealt with, '!? Collective bargain-

ing is broadly defined by 5 U.S.C. § 7103(a)(12) as:

the performance of the mutual obligations of the

representative of the agency and the exclusive

representative of employees in an appropriate unit in

the agency to meet at reasonable times and to consult

'! When the strike came, FAA announced that it would not formal-

ly deal with PATCO or any strikers. The General Counsel of the

Federal Labor Relations Authority later refused to hold that this was

an unfair labor practice on the part of FAA.

'2 The General Counsel’s determination (fn. 11, supra) did not

decertify PATCO.

10a

and bargain in a good faith effort to reach agreement

with respect to the conditions of employment affect-

ing such employees and to execute, if requested by

either party, a written document incorporating any

collective bargaining agreement reached... .

As regional representatives, petitioners had to ratify any

proposed collective bargaining agreement before it could

be submitted to the Union rank and file. If these con-

trollers had gone back to their home bases, the Union

would have been unable to settle the strike because the

strike ratification mechanism would not have been

available. (Petitioners had always been awarded official

time for past negotiations during which they were present

solely to ratify a tentative agreement.) Moreover, the time

spent dealing informally with FAA, the executive branch,

and Congress, cannot be considered mere “stand-by”

time.'3 Although the agency had announced that it would

not negotiate during the strike, petitioners met with in-

terested representatives of both the executive branch and

Congress in a futile attempt to end the strike. It cannot be

discounted that PATCO was still the authorized collective

bargaining representative of the controllers. In these cir-

cumstances, it was clearly not the intent of Congress that

the negotiators for the representative Union must go home

and discontinue talks with the FAA after the strike was

called; and the broad wording of § 7103(a)(12) certainly

permits the construction that petitioners’ activities in

August 1981 were part of ongoing collective bargaining

for which they were entitled to “official time” and

authorized leave.

REVERSED.

'3 In the reconsideration decision, the Board stated:

No matter how expansively the concept of negotiation may be in-

terpreted, we do not believe that it should be intended to cover

the stand-by time at issue here during which after the illegal strike

began, the |petitioners] were waiting to see if the agency would be

compelled or coerced into once again dealing with the Union.

eNOS

ced

lla

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

Appeal No. 85-1833

MSPB Docket Nos. SE075281F0271, AT075281F2497

PH075281F1084, DE075281F0642

DAVID A. FITZGERALD, ET AL., PETITIONERS,

V.

DEPARTMENT OF TRANSPORTATION,

FEDERAL AVIATION ADMINISTRATION, RESPONDENT.

JUDGMENT

ON APPEAL from the Merit Systems Protection

Board in CASE NO(S). SE075281F0271, AT075281F2497

PH075281F 1084, DE075281F0642. This CAUSE having

been heard and considered, it is ORDERED and AD-

JUDGED: REVERSED

ENTERED BY ORDER OF

THE COURT

/S/ FRANCIS X. GINDHART

Francis X. Gindhart, Clerk

DATED Aug. 8, 1986

ISSUED AS A MANDATE: October 16, 1986

COSTS: Against, Respondent.

ig if k i, ter $564.67

BL | ety $564.67

_ < ——

12a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

Appeal No. 85-1833

DAviD A. FITZGERALD, ET AL., PETITIONERS,

Vv.

DEPARTMENT OF TRANSPOR: ATION,

FEDERAL AVIATION ADMINISTRATION, RESPONDENT.

ORDER

Before RICH’ and DAVIS, Circuit Judges, and COWEN,

Senior Circuit Judge.

A petition for rehearing having been filed in this case,

UPON CONSIDERATION THEREOF, it is

ORDERED that the petition for rehearing be, and the

same hereby is, denied.

The suggestion for rehearing in banc is under considera-

tion.

FOR THE COURT

/s/ FRANCIS X. GINDHART

Francis X. Gindhart, Clerk

10/3/86

Date

cc: Mr. Richard J. Leighton

Ms. Sandra P. Spooner, DOJ

l3a

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

Appeal No. 85-1833

~ David A. FITZGERALD, ET AL., PETITIONERS,

v.

DEPARTMENT OF TRANSPORTATION,

FEDERAL AVIATION ADMINISTRATION, RESPONDENT.

ORDER

A suggestion for rehearing in banc having been filed in

this case,

UPON CONSIDERATION THEREOF, it is

ORDERED that the suggestion for rehearing in banc is

declined.

FOR THE COURT

/s/ FRANCIS X. GINDHART

Francis X. Gindhart, Clerk

10/16/86

Date

cc: Mr. Richard J. Leighton

Ms. Sandra P. Spooner, DOJ

l4a

APPENDIX D

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

Docket No. SE075281F0271

DAVID A. FITZGERALD, ET AL., APPELLANT,

v.

DEPARTMENT OF TRANSPORTATION, AGENCY.

[Date: Aug. 1, 1984]

OPINION AND ORDER

Appellants David A. Fitzgerald, William Sedgwick,

Carl Vaughn and Mark K. Winter were removed by the

Federal Aviation Administration (FAA) from their posi-

tions as air traffic controllers. These actions were taken

because of their alleged participation in a nationwide

strike, called by the Professional Association of Air Traf-

fic Controllers (PATCO), which began on August 3, 1981.

The appellants were also charged with AWOL for the

same absences from their duty stations. Appellants were

members of the union’s nationwide negotiating team.!

' The appellants raised similar claims which we consolidated for ex-

peditious adjudication. 5 C.F.R. § 1201.36. Appellant Fitzgerald was

included among the appellants covered by the initial decision in

Robert Boyd v. Department of Transportation, Docket No.

SE075281F0263 (January 26, 1983). Appellant William Sedgwick was

included among the appellants covered by the initial decision in

Gerald L. Agolini v. Department of Transportation, AT075281F2351

(January 14, 1983). Appellant Carl Vaughn was among the appellants

subject to the initial decision in Richard E. Brenner v. Department of

Transportation, Docket No. PH075281F1024 (February 1, 1983).

lSa

Despite initial decisions upholding these removals, we

reversed the agency actions in an opinion dated November

10, 1983. However, we subsequently reopened this case on

our Own motion and invited additional briefing. Having

now reexamined the case, we conclude that our original

opinion was in error.

In that opinion, we did not adequately consider whether

the appellants were AWOL or on strike because we con-

cluded that 5 U.S.C. § 7131(a) required a finding that the

appellants were on official time during the period of the

strike. That statute provides:

§ 7131. Official Time

(a) Any employee representing an exclusive represen-

tative in the negotiation of a collective bargaining

agreement under this chapter shall be authorized of-

ficial time for such purposes, including attendance at

impasse proceeding, during the time the employee

otherwise would be in a duty status. The number of

employees for whom official time is authorized under

this subsection shall not exceed the number of in-

dividuals designated as representing the agency for

such purposes.

The recent Supreme Court decision in Bureau of

Alcohol, Tobacco and Firearms v. FLRA, 104 S. Ct. 439

(1983), emphasizes the importance of that statute’s re-

quirement that official time is to be granted only to

Appellant Max K. Winter was among the appellants covered by the

initial decision in Gary J. Ayers v. Department of Transportation, and

Michael M. Harp v. Department of Transportation, Docket Nos.

DE075281F0581 and DE075281F0602 (February |, 1983). The agency

charged appellants with the following AWOL and strike violations:

appellant Fitzgerald, beginning at 2 p.m., August 3, 1981 through

August 6, 1981: appellant Sedgwick, beginning at 6:55 a.m., August

3, 1981 through August 11, 1981; appellant Vaughn, beginning at 3

p.m., August 3, 1981 through August 6, 1981; and appellant Winter,

beginning at 7 a.m., August 3, 1981 through August 9, 1981.

l6a

employees who would otherwise have been in a duty

status. We did not consider that limitation in our earlier

decision. If appellants were actually AWOL or on strike,

they would not have been eligible, under 5 U.S.C.

§ 7131(a), for official leave because they would not,

without that leave, have otherwise been in a duty status.

On that issue, we find the agency did establish a prima

facie case that the appellants were on strike. The agency

proved the appellants’ unauthorized absence from their

duty stations during a strike, the existence of which was a

matter of general knowledge. Schapansiy v. Department

of Transportation, No. 83-663 (Fed. Cir. May 18, 1984).

The appropriateness of applying this traditional method

of establishing a prima facie case in this proceeding is but-

tressed by the appellants’ role as national negotiators for

PATCO, the exclusive representative which was subse-

quently decertified for wilfully and intentionally calling

the strike involved here. PATCO (FAA), 7 FLRA 34

(1981). It would be illogical for us to require the agency to

establish strike participation on the part of these ap-

pellants by a greater degree of proof than we generally re-

quired it to introduce in the other 11,000 appeals involving

controllers who were not union negotiators. The status of

these appellants as negotiators is not a bar to the agency’s

attempt to prove their participation in the illegal strike.

The relevance of that status, if any, goes to the appellants’

ability to rebut the agency’s case.

The appellants did not rebut the agency’s case. The

records in these cases reveal that appellants Fitzgerald,

Winter and Sedgwick did not claim that their leaves, dur-

ing the strike period, were officially authorized.

Moreover, the records reveal that appellant Winter was

specifically contacted by his supervisor on August 2, 1981,

the day before the strike began, and instructed to report

for duty. Ayers, supra, Hearing Transcript (Tr.) at.531. It

also reveals that Winter did not at that time inform his

17a

supervisor that he would not report for duty and that, in-

stead, he immediately intended to travel to Washington to

be with the union leadership. Ayers, Tr. at 532 and 538,

539. Only appellant Vaughn claimed to have received prior

approval of his absences from duty during the strike and,

in his case, the presiding official, after properly weighing

the evidence presented, concluded that Vaughn’s absences

were not, in fact, so authorized.

The appellants’ main contention is that they were in an

informally approved leave status during the strike. In that

regard, they relied upon the agency’s past practice of

granting leave to members of the negotiating team without

requiring them to seek and obtain prior authorization

directly from their immediate supervisors. This reliance,

however, is unavailing. It is undisputed that the pro-

cedures which were usually followed by each of the ap-

pellants and by the union to obtain official leave status for

negotiators were disregarded here. In fact, appellant

Sedgwick testified that he failed to follow those pro-

cedures at the union president’s request in order to keep

the trip secret. While, the affidavit of Dennis Reardon, the

responsible union official, indicated that the lack of prior

notification was occasioned by the press of business, it is

admitted that when each of the appellants left his duty sta-

tion to travel to Washington in early August, 1981, the

union failed to notify the agency, as it normally did, that

they should be placed in a leave status. These failures to

follow normal procedures for acquiring official time are

inconsistent with the appellants’ claim that they believed

they were in an informally approved leave status. Such

disregard of normal procedures by appellants and the

union is more consistent with a finding that the appellants

left their duty stations when the strike was imminent, in-

tending to withhold their services during the strike, should

it occur, in concert with others.

eee

18a

The appellants, however, rely upon a statement at-

tributed to the Secretary of the Department to bolster their

claim that they were in an informally approved leave

status. The affidavit of the union president states that

Secretary Lewis insisted that the negotiating team be in

Washington immediately prior to the strike since any ten-

tative contract had to be accepted by a majority of that

team before it could be submitted to the union member-

ship for ratification. Brenner v. Department of Transpor-

tation, supra, Appellants’ Ex. 8. In our earlier spinion, we

accepted that unrebutted hearsay evidence as true. In addi-

tion, there was testimony that the statement attributed to

the Secretary was repeated by union officials to the ap-

pellants. Since they had been told that FAA officials re-

quested their presence, appellants might have believed,

despite their failure to follow normal procedures, that they

were entitled to be considered on official time during the

period when negotiations were being conducted in an at-

tempt to avert the impending strike. However, nothing in

that hearsay statement attributed to the Secretary directly

speaks to post-strike negotiating activities. Therefore,

once the strike began, the appellants could not rely upon

the Secretary’s earlier desire to have them in Washington

to support a claim that their continued absences from duty

had been authorized by the Secretary and that they were,

thus, in an informally approved leave status.

The appellants also contend that, even without official

or unofficial authorization, their absences from their duty

stations during the strike should be excused because the

language of 5 U.S.C. § 7131(a) mandates the authoriza-

tion of official time status to employees representing an

exclusive representative in the negotiation of a collective

bargaining agreement. We cannot agree with that conten-

tion in this case. If the appellants were actually on strike

while they were negotiating, they would not be entitled to

official leave. Title 5 U.S.C. § 7131(a) does not turn the

19a

act of conducting negotiations into official duty. Instead,

it confers the right to salary, during these negotiations, to

an employee who otherwise would be in a duty status. As

the Supreme Court said, the qualifying language of that

statute “strongly suggests that union negotiators engaged

in collective bargaining are not considered in a duty

status. .. .” Bureau of Alcohol, Tobacco and Firearms,

supra, 1048. Ct. at 448. Moreover, “Congress did not pro-

vide that employees engaged in collective bargaining are

acting in their ‘official capacity,’ ‘on the job,’ or in a ‘duty

status’ ” Jd. Therefore, for appellants to have established a

legal right to be considered on official time, they would |

also have to have otherwise been in a duty status, a status

they could not claim if they were striking.

In addition, and alternatively, we find that we were in-

correct in our original determination that the appellants

were representing an exclusive representative in the

negotiation of a collective bargaining agreement during

the period of the strike. We take official notice of the fact

that PATCO charged the agency with an unfair labor

practice for refusing to bargain during the existence of the

strike. PATCO v. FAA, FLRA Case No. 3-CA-2729

(Amended Charge dated August 8, 1981). In its allegation,

the union asserted that the agency refused to meet and

negotiate with PATCO and that the agency announced

that the only people “we will deal with are people on the

job, working as traffic controllers.” /d. It is interesting to

note that the FLRA refused to issue a complaint, based

upon that charge, concluding, instead, that there was no

duty to negotiate during the illegal strike. (General

Counsel’s Decision Denying Appeal, Case No. 3-CA-2729

dated September 21, 1981.) However, for the purposes of

this case, the important fact is that the appellants claim an

entitlement to official leave for their role in negotiations

which the union alleged were not being conducted. No

matter how expansively the concept of negotiating may be

20a

interpreted, we do not believe that it should be extended to

cover the stand-by time at issue here during which, after

the illegal strike began, the appellants were waiting to see

if the agency could be compelled or coerced into once

again dealing with the union.

Finally, relying upon Letenyei v. Department of

Transportation, FAA, No. 83-1174 (Fed. Cir. May 18,

1984) and Trick v. FAA, No. DC0752811F1144 (MSPB

Dec. 17, 1981), appellants assert they had a good faith

belief in their entitlement to leave under 5 U.S.C.

§ 7131(a) and that this good faith belief precludes a find-

ing of strike participation. We are not persuaded by this

argument. We find that their absences were the direct

result of their support for and involvement in the illegal

strike. Letenyei is inapplicable since its holding relates to

the employee’s claim that he was not acting in concert with

others, a claim these appellants cannot make. They each

went to Washington to assist PATCO in attempting to

negotiate a new agreement after the union had announced

its intention, if such negotiations failed, to call the illegal

strike, and remained there after it had done so. Moreover,

Trick is inapplicable because the language therefrom upon

which appellants rely related to a belief that there was an

approved leave in existence. Here, there was no such ap-

proved leave. The appellants’ claimed belief that their

leave would have to be approved was not one on which

they were entitled to rely. The appellants had not sought

or received prior approval of their leave status. An illegal

strike was being conducted and management had declared

that it would not negotiate with PATCO during the strike.

2 Appellants’ twenty-four page filing in response to our request for

briefs contained more arguments than we have mentioned in this opin-

ion. See Appellants’ Objection and Brief Responding to the Board’s

Order Reopening Case on Its Own Motion. While we have addressed

only the appellants’ relevant major contentions, we have carefully

considered all of the arguments contained in their filing.

2la

Under these circumstances, appellants might hope, but

could not reasonably believe, that 5 U.S.C. § 7131(a) en-

titled them to official time.

Consequently, we find that the agency proved by a

preponderance of the evidence that appellants participated

in a strike. In addition, we find that the agency-imposed

penalty of removal for striking is reasonable. Schapansky

v. Department of Transportation, MSPB Docket No.

DA075281F1130 (October 28, 1982) (the nature and gravi-

ty of striking aganist the government justifies an

employee’s removal despite the preserice of mitigating fac-

tors).

Accordingly, the agency’s actions removing appellants is

sustained.

This is the final order of the Merit Systerns Protection

Board in this appeal. 5 C.F.R. § 1201.113(c). Appellants

are hereby notified of their right to seek judicial review of

the Board’s action by filing a petition for review in the

United States Court of Appeals for the Federal Circuit,

717 Madison Place, N.W., Washington, D.C. 20439. The

petition for judicial review must be received by the Court

no later than thirty days after appellant’s receipt of this

order.

FOR THE BOARD:

Washington, D.C. /S/_ DENNIS M. DEVANEY

Dennis M. Devaney

Member

22a

APPENDIX E

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

Docket No. SE075281F0271

DAVID A. FITZGERALD, ET AL.!

APPELLANTS,

Vv.

DEPARTMENT OF TRANSPORTATION,

FEDERAL AVIATION ADMINISTRATION, AGENCY.

ORDER

By letter dated January 17, 1984, the Director of the Of-

fice of Personnel Management (Director) requested the

Board to reopen and reconsider on our own motion the

above-referenced case or, in the alternative, to grant the

Director leave to file a petition for reconsideration out of

time. The Board DENIES the Director’s request to file a

petition for reconsideration out of time. However, the

Board REOPENS and RECONSIDERS this case on its

Own motion pursuant to § C.F.R. § 1201.117. See Dawson

v. Merit Systems Protection Board, 712 F.2d 264 (7th Cir.

1983); Bookman v. United States, 453 F.2d 1263 (Ct. Cl.

1972). Because the Board is reopening and reconsidering

the instant case on its own motion, the Board hereby stays

the corrective action in its November 10, 1983 decision.

' This Order relates to appellants David A. Fitzgerald, William

Sedgwick, Carl Vaughn and Max K. Winter. MSPB Docket Nos.

SE075281F0271, AT075281F2497, PH075281F1084, DE075281F0642,

respectively.

23a

The Board requests that the parties and the Director

submit briefs on the following issues:

1. In light of Bureau of Alcohol, Tobacco and

Firearms v. Federal Labor Relations Authority, 52

U.S.L.W. 4013 (Nov. 29, 1983), can these appellants be

considered employees who “otherwise would be in a duty

status” in accordance with 5 U.S.C. § 7131(a) during the

periods in question, when they failed to return to work

upon commencement of the strike?

2. In light of the FLRA General Counsel’s determina-

tion (Case No. 3-CA-2729) that the agency had not com-

mitted an unfair labor practice because its duty to bargain

with the PATCO union was suspended after commence-

ment of the strike, did the Board err as a matter of law in

concluding that appellants should have been carried in

“official leave” status as members of the union negotiating

team?

Each party’s brief is due twenty days after receipt of this

Order and is limited to the above issues.

FOR THE BOARD:

May 11 1984 /s/ ROBERT E. TAYLOR

Date Robert E. Taylor

Secretary

24a

APPENDIX F

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

Docket Number SE075281F0271

DAVID A. FITZGERALD, ET AL.'

APPELLANTS,

V.

DEPARTMENT OF TRANSPORTATION AGENCY.

OPINION AND ORDER

Appellants have petitioned for review of the initial deci-

sions sustaining their removals from their positions as Air

Traffic Control Specialists.2 The agency charges were

' This Opinion and Order relates to the appeals of David A. Fitz-

gerald, William Sedgwick, Carl Vaughn, and Max K. Winter. The ap-

pellants composed the union national negotiating team and they

therefore raise similar claims which we consolidate for expeditious ad-

judication. 5 C.F.R. § 1201.36. Appellant Fitzgerald was included

among the appellants covered by the initial decision, Robert Boyd et

al., Docket No. SE075281F0263, dated January 26, 1983. Appellant

William Sedgwick, Docket No. AT075281F2497, was included among

the appellants covered by the initial decision, Gerald L. Agolini, et al.,

Docket No. AT075281F2351, dated January 14, 1983. Appellant Carl

Vaughn, Docket No. PH075281F1084 was among the appellants sub-

ject to the initial decision, Richard E. Brenner, et al., Docket No.

PHO0O75281F1024 (February 1, 1983). Appellant Max K. Winter,

Docket No. DE075281F0642 was among the appellants covered by the

initial decision Gary J. Ayers, et al. and Michael M. Harp, et al.,

Docket Nos. DE075281F0581 and DE075281F0602 (February 1,

1983).

2 Appellant Fitzgerald was based at Anchorage, Alaska; appellant

Sedgwick at Jacksonville, Florida; appellant Vaughn at Pittsburgh,

Pennsylvania, and appellant Winter at Denver, Colorado.

25a

striking against the government in violation of 5 U.S.C.

§ 7311 and 18 U.S.C. § 1918 and unauthorized absence

(AWOL) beginning on August 3, 1981.3

Appellants’ petitions for review contend that on the

dates charged, they were in Washington, D.C. involved in

the negotiation of a collective bargaining agreement as

members of the Professional Air Traffic Controllers

Organization (PATCO) National Negotiating Team, and

that they therefore were entitled to administrative leave

pursuant to 5 U.S.C. § 7131(a). Thus they argue that the

presiding officials erred in sustaining the charges of

AWOL and illegal striking. The Board hereby GRANTS

appellants’ petitions for review pursuant to 5 U.S.C.

§ 7701(e)(1).

DISCUSSION

Section 7131(a) of Title 5 of the United States Code pro-

vides:

§ 7131. Official time

(a) Any employee representing an exclusive

representative in the negotiation of a collective

bargaining agreement under this chapter shall be

authorized official time for such purposes, in-

cluding attendance at impasse proceeding, dur-

ing the time the employee otherwise would be in

a duty status. The number of employees for

whom official time is authorized under this

subsection shall not exceed the number of in-

dividuals designated as representing the agency

for such purposes.

3 The agency charged appellants with both violations as follows: ap-

pellant Fitzgerald beginning at 2 p.m., August 3, 1981 through August

6, 1981; appellant Sedgwick, beginning at 6:55 a.m., August 3, 1981

through August 11, 1981; appellant Vaughn, beginning at 3 p.m.,

August 3, 1981 through August 6, 1981; and appellant Winter, begin-

ning at 7 a.m., August 3, 1981 through August 9, 1981.

26a

It is undisputed that an employee negotiating on behalf

of a union is entitled to official time. Florida National

Guard vy. Federal Labor Relations Authority, 699 F.2d

1082, 1086 (1ith Cir. 1983), petition for cert. filed on

other grounds, 51 U.S.L.W. 3485 (U.S. Dec. 16, 1982)

(No. 82-1021). The mandatory language of the statute

compels the authorization of administrative leave; thus,

the agency is devoid of discretion in the granting of such

leave to employees who meet the criteria of the statute.

Testimony in each hearing supported past practice con-

forming to this entitlement. Appellant Winter testified

that customarily he told the facility chief that he would be

attending negotiating sessions in Washington, D.C., but

that arrangements were made between the Federal Avia-

tion Administration and PATCO in Washington and that

the FAA would in turn notify the facility. Ayers Hearing

Transcript (H.T.) at 456. The area manager at Winter’s

facility testified that the agency “had an obligation to give

them time off when they needed it for certain meetings.”

Id. at 532.

Appellant Vaughn testified that he informed his super-

visor that he had to be in Washington. Brenner H.T. at

481, 495. The air traffic manager at Vaughn’s facility

testified that Vaughn had been carried in a paid duty

Status when serving as a member of the negotiating team,

that the agency had paid his transportation to Washington

and that normal procedure was that the FAA regional of-

fice or the labor relations branch would call the facility.

As manager, he would then inform Vaughn’s supervisor of

Vaughn’s absence from the facility. Jd. at 42-43.

Appellant Sedgwick testified that he was always

scheduled so that he could leave on a “minute’s notice” and

that it was unnecessary to notify the facility chief in ad-

vance. Agolini H.T. at 177. He further testified that the

FAA paid for his flights to Washington and that he was

On administrative leave at those times. /d. at 176.

-

a a AONE, eS

27a

Sedgwick’s facility chief testified that Sedgwick informed

him of travel dates and that he would obtain concurrence

or advance notification from the labor section of the

regional office. Jd. at 27. Sedgwick’s chief stated that he

would then process a transportation request and later, ap-

pellant’s travel vouchers. Jd.

Appellant Fitzgerald did not testify at his hearing.

Although the manager of the labor relations branch in the

Alaska Region testified that an employee is not allowed to

leave a duty status without the prior approval of his super-

visor, and that appellant’s duties as part of the negotiating

team did not excuse this absence, he also stated that it was

the responsibility of the FAA negotiating team to contact

the labor relations branches and that the personnel in

those branches in turn made arrangements with the facili-

ty. Boyd H.T. at 177, 176.

In sum, the evidence supports a finding that the past

practice of the agency was to grant leave to these members

of the negotiating team in accordance with 5 U.S.C.

§ 7131(a), and that these appellants were not required to

conform to any specified procedures to obtain such leave.

The question therefore remaining to be resolved is

whether appellants were, on the dates charged, represent-

ing PATCO in the negotiation of a collective bargaining

agreement. It is undisputed that appellants formed the

PATCO negotiating team until at least July, 1981.

Presiding officials in the initial decisions of Fitzgerald,

Sedgwick, and Winter noted, however, that identical ai-

fidavits submitted by Edward Curran, Director of the Of-

fice of Labor Relations for the FAA, states that appellants

were not authorized participants in the negotiations which

resumed on July 31, 1981, although they had met as the

negotiating team prior to that date.

The affidavit of Dennis Reardon, Chief Spokesman for

the PATCO negotiating team, was introduced as evidence

in the records of Fitzgerald, Vaughn, and Winter. Reardon

28a

stated that all of the appellants were members of the

negotiating team in August, 1981, that any tentative con-

tract had to be accepted by a majority of the negotiating

team before it could have been submitted to the member-

ship for ratification, and that, therefore, it was necessary

for the team to be in Washington. He further affirined

that negotiations reconvened on August 1, 1982 (sic) and

that he had failed to notify the FAA of the decision to

recall the team members as he had done in the past.

An affidavit of Robert Poli, then President of PATCO,

in the Vaughn and Winter records repeated most of the

statements made by Reardon. Poli, however, added that

the Secretary of the Department of Transportation, Drew

Lewis, insisted that the negotiating team be present in

Washington when the negotiations reconvened on August

1, 1981.

Appellants Sedgwick, Vaughn, and Winter all testified

that they were in Washington serving on the negotiating

team on the days they were charged by the agency. Agolini

H.T. at 184-85, 204; Brenner H.T. at 496-97; Ayers H.T.

at 457-60. Appellants also testified that they were told that

Secretary Lewis wanted them in Washington. Angolini

H.T. at 182; Brenner H.T. at 504-05; Ayers H.T. at

458-59. Apellant Vaughn testified that the FAA knew that

he was in Washington because he met with several FAA

officials. Brenner H.T. at 506-08.

The agency evidence and much of the appellant’s

evidence is hearsay. Hearsay evidence is admissible in ad-

ministrative proceedings; but whether it is sufficient to

Support an agency adverse action must be weighed in light

of the totality of the record, and by comparing its

credibility against that of the contrary evidence. Green v.

United States Postal Service, 3 MSPB 403-04 (1980).

Although due deference must be given to the credibility

assessments of the presiding officials, the Board is free to

substitute its own determinations of fact for those of the

29a

presiding officials, giving the presiding officials’ findings

only so much weight as may be warranted by the record,

Weaver v. Department of the Navy, 2 MSPB 297, 298

(1980).

Other than the Curran affidavit, the agency presented

no evidence in support of its contention that appellants

were not authorized members of the negotiating team in

August 1981. Nor did the agency rebut the appellants’

hearsay evidence that FAA officials had requested the

team’s presence in Washington. See Boyd, H.T. at 176;

Agolini H.T. at 25-0; Brenner H.T. at 41; Ayers H.T. at

532. Because past arrangements were made by others, ap-

pellants had no reason to believe that leave was not

authorized or that arrangements had not been made as

they had been in the past. Thus, the weight of the evidence

supports a finding that appellants were authorized

representatives of PATCO on the dates charged.

Finally, in order to find that 5 U.S.C. § 7131(a) applies

to appellants, it must be determined that they were en-

gaged in the negotiation of a collective bargaining agree-

ment. Collective bargaining is defined by 5 U.S.C.

§ 7103(a)(12) as:

the performance of the mutual obligation of the

representative of an agency and the exclusive

representative of employees in an appropriate unit in

the agency to meet at reasonable times and to consult

and bargain in a good-faith effort to reach agreement

with respect to the conditions of employment affect-

ing such employees and to execute, if requested by

either party, a written document incorporating any

collective bargaining agreement reached, but the

obligation referred to in this paragraph does not com-

pel either party to agree to a proposal or to make a

concession.

30a

Appellants admit that they attended no face-to-face

negotiating sessions. Agolini H.T. at 198-99; Brenner

H.T. at 524; Ayers H.T. at 459. However, the evidence

shows that the negotiating team’s role was approval of a

contract prior to its submission to the entire union

membership. See Reardon affidavit; Poli affidavit;

Agolini H.T. at 185, 204; Brenner H.T. at 496, 499, 503;

Ayers H.T. at 459, 460.

The legislative history of § 7131(a) discloses that it was

the intent of Congress that the entitlement of official time

would include all negotiations in the collective bargaining

procedure. Section 7131(a) of Title 5 is identical to

§ 7132(a) of the Bill (H.R. 11280) reported to the House

Post Office and Civil Service Committee. See H.R. Rep.

No. 95-1403, 95th Cong., 2d Sess. 288 (1978). Congress re-

jected the language in § 7232 of the Bill (S. 2640) reported

to the Senate by the Senate Government Affairs Commit-

tee which sought to maintain restrictions on the use of of-

ficial time for negotiation by employees representing

unions. The rejected language permitted official time only

to the extent agreed upon by negotiating parties, as

established in Exec. Order 11491, 3 C.F.R. 1966-1970

Comp. 861 (1969).

Thus, we find that negotiating a collective bargaining

agreement encompasses the roles of appellants in this in-

stance and that appellants were entitled to administrative

leave under 5 U.S.C. § 7131(a) for the days on which they

were charged. Therefore, the appellants rebutted the agen-

cy’s prima facie cases of strike participation and AWOL,

and the agency’s charges cannot be sustained. See

Schapansky v. Department of Transportation, MSPB

Docket No. DA075281F1130 at 6 n.2 (October 28, 1982).

Accordingly, the Boyd, et al. initial decision is

REVERSED with respect to David Fitzgerald, the Agolini

et al. initial decision is REVERSED with respect to

William Sedgwick, the Brenner, et al. initial decision is

i

3la

REVERSED with respect to Carl Vaughn, and the Ayers

and Harp. et al. initial decision is REVERSED with

respect to Max Winter.

The agency is ORDERED to cancel the removals of ap-

pellants Fitzgerald, Sedgwick, Vaughn, and Winter.

Proof of compliance with this Order shall be submitted

by the agency to the Office of the Secretary of the Board

within twenty (20) days of the date of issuance of this

opinion. Any petition for enforcement of this Order shall

be made to the respective Regional Office in accordance

with § C.F.R. § 1201.181(a).

This is the final order of the Merit Systems Protection

Board in these appeals. 5 C.F.R. § 1201.113(c).

Each appellant is hereby notified of the right under 5

U.S.C. § 7703 to seek judicial review of the Board’s action

by filing a petition for review in the United States Court of

Appeals for the Federal Circuit, 717 Madison Place,

N.W., Washington, D.C. 20439. The petition for judicial

review must be received by the court no later than thirty

(30) days after the appellant’s receipt of this order.

For The Board:

Nov 10 1983 /s/ ROBERT E. TAYLOR

Date Robert E. Taylor

Secretary

Washington, D.C.

Attachment: Statement of the Board’s policy on service of

its Opinions and orders. [Not included in Appendix]

32a

APPENDIX G

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

PHILADELPHIA REGIONAL OFFICE

Initial Decision Number: PH075281F1084 (Vaughn)

RICHARD E. BRENNER, ET AL.

v.

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

Date: February 1, 1983

[Relevant excerpts relating to respondent Carl Vaughn]

INTRODUCTION

These are appeals from removal actions. All of the ap-

pellants * * * with the exception of August A. Jeske, Jr.,

were terminated from positions as Air Traffic Control

Specialists at the Greater Pittsburgh Tower, Pittsburgh,

Pennsylvania. * * * In each of these cases the agency cited

as reasons for the proposed removal, appellants’ alleged

participation in an illegal strike and an alleged offense of

unauthorized absence.

At appellants’ request a hearing was held with respect to

this matter on November 16, 17 and 18, 1982.

JURISDICTION

An employee may appeal to the Merit Systems Protec-

tion Board from any action which is made appealable to

the Board under any law, rule, or regulation, 5 U.S.C.

33a

Section 7701(a). The law provides that an employee in the

competitive service who is not serving a probationary

period may appeal an action removing him or her from the

Federal service, 5 U.S.C. Sections 7511(a)(1)(A), 7512(1)

and 7513(d). The record shows that the appellants were

employees in the competitive service, that they were not

serving in probationary periods, and that they were

removed from their positions with the Department of

Transportation. Accordingly, I find that these appeals are

acceptable for adjudication.

ANALYSIS AND FINDINGS

In order to have its removal decision sustained, an agen-

cy has the burden of establishing the reason for the action,

by a preponderance of the evidence, 5 U.S.C. Section

7701(c)(1)(B). This is defined as:

That degree of relevant evidence. which a reasonable

mind, considering the record as a whole, might accept

as sufficient to support a conclusion that the matter

asserted is more likely to be true than not true.

5 C.F.R. 1201.56(c)(2).

All of the appellants received advance notices which

were, with the exception of times and dates, identical to

each other:

Reason I: Violation of 5-U.S.C. 7311, which states in

pertinent part, “An individual may not accept or

hold a position in the Government of the United

States. ..if he. . . participates in a strike against the

Government of the United States ...”; and 18

U.S.C. 1918, which makes participation in a strike

against the Government of the United States a crime

for which a sentence of imprisonment can be imposed.

Specification: Beginning at approximately 7 a.m.

EDT, on August 3, 1981, a nationwide strike by air

traffic controllers occurred. Beginning at

34a

on August , 1981 when you failed to report for

duty, until the present, you participated in a strike

against the United States Government.

Reason 2: Unauthorized Absence.

Specification: Beginning first at the to

shifton August , 1981, you failed to report for your

scheduled tour of duty. On August _, 1981, you were

sent a telegram that an illegal strike was in progress,

and that you must return to duty for your regularly

scheduled shift. You failed to return to duty, and in-

stead remained absent without authorization.

Four of the appellants asserted defenses revolving

around allegations that they were on approved leave at the

time they were accused of being on strike and absent

without authorization. With respect to the other thirteen,

the factual pattern is so similar, one issue excepted, that a

joint analysis of their cases is warranted. The issue in ques-

tion, whether the absence of four of them is excusabie due

to confusion fostered by the agency, will be analyzed after

the matter of the absences themselves are analyzed.

The agency’s princial witness against all appellants but

Jeske was Peter W. Bernhard, the Chief Air Traffic Con-

troller at the Greater Pittsburgh Airport. Bernhard ex-

plained in some detail as to how the work schedule at the

Greater Pittsburgh Tower was set up, stating that it was

based upon a team concept, and that each individual con-

troller could determine what his work shifts would be for

the month of August 1981, by looking at the master

schedule. The schedule for August 1981 had been

disseminated two months in advance. An employee was

obligated to sign in on a Personnel Log for each shift that

he was supposed to report for work. If an employee failed

to report for work, was not on approved leave, and of-

fered no reason for his absence, he would be carried as

Absent Without Leave on his Time and Attendance Cards.

2

7

- 35a

Paul Spanko, the Tower Chief at the Allegheny Tower,

testified that the same system of composing scheduies,

signing in for shifts, and recording absences was in effect

at the Allegheny facility. Spanko further testified that ap-

pellant Jeske did not report for work for any of his

scheduled shifts during the week of August 3, 1981, was

not on approved leave, and did not contact the agency to

offer any excuses to explain his absences. Bernhard of-

fered similar testimony with respect to appellants Brenner,

Mastraieni, Flaherty, Dissen, Kaltenbaugh, Welsh, West,

Wintermeyer, Novitsky, Schultz, Dilla and Brickner; 1.e.,

that all of them were absent from all of their scheduled

shifts during the week of August 3, 1981, that none of

them were on approved leave, and that none of them con-

tacted the agency to offer any explanation for. their

absences. None of the appellants presented any evidence.

*** Accordingly, I find that the agency has demon-

strated, by a preponderance of the evidence, that ap-

pellants Brenner, Mastraieni, Flaherty, Dissen, Katten-

baugh, Welsh, West, Wintermyer, Novitsky, Schultz,

Dilla, Brickner and Jeske were Absent Without

Authorization on the dates charged.

Four of the appellants claim they were on some form of

approved leave at the time of the strike, and allege that

since their absences were approved and their services not

due, the charges of Unauthorized Absence and striking

cannot be sustained against them. The agency had notified

all controllers by means of Pittsburgh Order 7210.6, that

all annual leave automatically be cancelled in the event of

a strike. Appellants claim that according to Article 28,

Section | of the agreement between PATCO and the agen-

cy, leave could not be cancelled except in the case of an

operational emergency, and that since the operational

emergency did not occur until after the strike began, a

notification prior to that time was contrary to the terms of

the contract. Appellants argue that each should have been

36a

notified individually of the leave cancellation. Moreover,

some of the appellants allege that their initialling of PIT

07210.6, did not mean that they had read it or understood

it.

I find this latter argument to be specious. Testimony

was given that the initialling of such a communication by a

controller was a declaration that they had read and

understood it. A controller having so initialled this Order

will be presumed by me to have read and understood it.

Any other finding by me on this issue would constitute a

determination that an individual had made a false

representation with a consequent impact on his credibility.

With respect to the issue of whether the agency’s policy

was contrary to the collective bargaining agreement, I note

that a strike in which the vast majority of controllers ab-

sent themselves is, by any definition, an operational

emergency; therefore, both the agency and the appellant

knew that if there were a strike there would be a de facto

operational emergency. All the appellants, with the possi-

ble exception of Stumpf, certainly knew of the strike, ard,

therefore, of the operational emergency. All had been puit

on notice that their leave was cancelled as soon as there

was a strike. Even assuming, arguendo, that the agency

had not complied with the collective bargaining agree-

ment, the appellants’ avenue of redress was not to disobey

the agency’s directive, but to have the dispute resolved

through the grievance procedures set up by Article 7 of the

Same agreement. :

* * * * *

Carl Vaughn was, like Lane, Snyder and Stumpf, absent

for his assigned shifts during the week of August 3, 1981.

Like them, he claims to have been on approved leave dur-

ing this week. Vaughn is the PATCO representative for

the Eastern Region on the national negotiating team. He

claims that he requested leave from a supervisor who ap-

proved it, and that he was therefore on approved leave

37a

during the time he was on strike. However, as with the

other individuals alleging approved leave, appellant

Vaughn never raised this issue during either the agency

removal process, or, during his initial appeal to the Board.

Moreover, in his answers to the Interrogatories, Vaughn

indicated he was on leave only on August 2, 1981, and that

he was scheduled for duty on August 3, 4, and 5, 1981.

Furthermore, there is ample evidence that neither Vaughn

nor PATCO followed the regular procedures required to

release him from duty, in that neither Bernhard nor the

Region was informed that he was required. PATCO ad-

mitted that they did not notify the agency of its decision to

call in the negotiators. Vaughn claims that he spent the

next several months in Washington attempting to resolve

the strike situation. While I have no doubt as to this

representation, I find that all of his absences after August

2, 1981, for whatever purpose, were without authoriza-

tion, and, therefore the agency has demonstrated, by a

preponderance of the evidence that he was absent without

authorization on the dates indicated.

In sum, I have found that the agency has demonstrated

by a preponderance of the evidence that all of the ap-

pellants were absent without authorization on the days in-

dicated.

* * * “ *

The fact of the appellants’ Unauthorized Absence dur-

ing the week of August 3, 1981 is one element of the agen-

cy’s evidence that appellants participated in an illegal

strike against the United States Government. The other

being the fact that a nationwide strike existed during the

week of August 3, 1981. The agency moved that I take of-

ficial notice of the strike called by PATCO. I note that ina

decision issued on May 28, 1982, the Board concluded that

the criteria for taking official notice, as provided for in 5

C.F.R. Section 1201.67 and defined in Federal Rule of

38a

Evidence 210, had been met vis-a-vis the existence of a na-

tionwide strike by air traffic controllers beginning August

3, 1981 and ending August 6, 1981. The Board based its

conclusions on “common knowledge,” “media coverage,”

“statements by PATCO officials” and “numerous findings

by Federal district courts in injunctive proceedings,”

Ketchem v. Department of Transportation, MSPB Docket

No. DA075281F0713 (May 28, 1982) (hereinafter Ket-

chem). The Board specifically found, subject to refuta-

tion, that an unlawful nationwide strike of air traffic con-

trollers had occurred from August 3 through August 6,

1981. All parties to this appeal were notified of the Board’s

decision in this case by means of an order issued by the

Regional Director of the Board’s Philadelphia Regional

Office. None of the appellants in this matter submitted

evidence to refute the Board’s findings. Hence, I find that

there was a nationwide strike by air traffic controllers in

existence from August 3 through August 6, 1981. -

These appellants argue the agency failed to produce any

direct evidence that they participated in the strike. Some

general discussion of what the agency must prove to meet

their evidentiary burden on this charge is appropriate. In

Schapansky v. Department of Transportation, MSPB

Docket No. DA075281F1130 (October 28, 1982) (herein-

after Schapansky), the Board determined that the ex-

istence of the strike was common knowledge, and that the

agency can establish a prima facie case of an employee’s

voluntary participation therein by presenting evidence of

his or her unauthorized absence from duty during the

strike. See also Jones v. Tennessee Valley Authority,

MSPB Docket No. AT07528010300 (February 19, 1982)

and Duckett and Yardley v. Tennessee Valley Authority,

MSPB Docket No. AT07528010325 (February 19, 1982).

In a recent case, the Court further defined striking against

the government as “picketing with co-workers during

scheduled work hours,” American Postal Workers Union

39a

v. United States Postal Service, 682 F.2d 1280, 1284 (9th

Cir. 1982). However, in a long line of cases dealing with

whether an individual’s actions can be deemed to be part

of a “concerted activity” under the National Labor Rela-

tions Act, the Courts have held that an _ individual

employee’s actions can be deemed to be part of a concerted

activity if they “have some relation to group action in the

interest of the employees,” Anchortank, Inc. v. NLRB,

618 F.2d 1153, 1161 (Sth Cir. 1980). And, “it is also

necessary ... that the employee’s actions themselves at

least contemplate some group activity,” Pelton Casteel,

Inc. v. NLRB, 627 F.2d 23, 28 (7th Cir. 1980). The in-

dividual’s actions must amount to action on behalf of

other employees, Aro, Inc. v. NLRB, 596 F.2d, 713, 717

(6th Cir. 1979) and embody some element of “collected ac-

tivity,” Krispy Kreme Doughnut Corp. v. NLRB, 635 F.2d

304, 307 (4th Cir. 1980). Further, as the Board noted in

Schapansky, supra, there need not be any overt physical

actions by the employee to find that he or she acted in con-

cert with other similarly situated employees, see a/sc Hugh

H. Wilson Corp., 171 NLRB 1040, 1046 (1968).

The objectives of any strike include the prevention of an

employer from carrying out its tasks by denying it the

manpower to continue operations. Appellants, by ab-

senting themselves from work at the same time the other

Air Traffic Control Specialists were doing so, abetted the

attempt of PATCO to hamper the agency’s operations. I

find that, contrary to appellants’ assertions, they were in

concert with other absentee controllers, and, that they

were participating in a strike against the Government of

the United States.

Appellants challenged the evidence relied upon by the

agency in each of these cases, particularly the various

documents referred to by Mr. Bernhard and Mr. Spanko

in their testimony about each of them, alleging that it is in-

sufficient-as a matter of law. In general, I note that it is the

40a

duty of the presiding official to evaluate all the testimony

of the witnesses, and to consider their opportunity to

observe the incident, their possible bias or prejudice, and

their inherent believability, Rias v. Veterans Administra-

tion, MSPB Docket No. PH0752811044 (May 18, 1982). It

is his responsibility to evaluate all the evidence relative toa

witness’ credibility and to assess the cumulative impact of

all the evidence, Flores v. Department of Labor, MSPB

Docket No. DA07528110503 (September 13, 1982). The

presiding official must determine which evidence is to be

given credit and greater weight when evidence conflicts,

Weaver v. Department of the Navy, 2 MSPB 297 (1980).

And, when versions of an incident as described by two

witnesses directly conflict, the presiding official must

resolve the question of credibility raised by the contradic-

tory testimony, see Wright v. Department of Health and

Human Services, MSPB Docket No. PH075209140

(March 17, 1981). The presiding official need not

disbelieve all of any witness’ testimony, and may choose to

accept as true only certain protions of that testimony, An-

tonucci v. Department of Justice, MSPB Docket No.

CH0752801057 (October 20, 1981). He may also accept

contradicted and uncorroborated testimony, provided that

it is “competent, credible and probative,” Hall v. Depart-

ment of the Air Force, p. 5, MSPB Docket No.

SF075209137 (October 7. 1981). The presiding official

must also evaluate all the hearsay evidence proffered by

both parties, and determine which evidence should be ac-

corded the greatest weight, Borninkhof v. Department of

Justice, MSPB Docket No. SF075209003 (February 27,

1981) and Schaeffer v. United States, 633 F.2d 945 (Ct. Cl.

1980). The Time and Attendance Cards and Personnel

Logs having been kept in the regular course of the agency’s

business are presumably reliable, and, in general, I have

found all of the agency’s records more reliable than the

demurrers offered by the appellants.

* * * * *

4la

Appellants point to the President’s speech of 11:00

a.m., on August 3, 1981, and maintain that it denied them

the right to due process since at that point their firings

were predetermined. The President’s statement read, in

pertinent part, as follows:

This morning at 7:00 a.m. the union representing

those who man America’s air traffic control facilities

called a strike ... I must tell those who failed to

report for duty this morning they are in violation of

the law and if they do not report for work within 48

hours they have forfeited their jobs and will be ter-

minated. 17 Weekly Comp. Pres. Doc. 847 (August 3,

1981).

I find that no one was fired by this speech. For one thing it

is clearly conditional in nature. The President was accord-

ing to the striking employees an opportunity to put

themselves in compliance with law. Admittedly, it con-

tains a warning that those who continue to strike will be

fired, but the announcement is consistent with what has

been the agency’s position throughout, that removal is the

appropriate penalty for striking. With respect to the

allegation that this speech rendered the appellants’ oral

and written replies futile, I note that all of the appellants

were accorded an opportunity to make both an oral and

written reply, but none of them used this chance to dispute

the facts of their absences. Bernhard and Spanko testified

that they examined the repties of all appellants to see if

there was anything in them indicating that the charges

were not true, and concluded that there was no informa-

tion in the replies to counter the charges. Since the ap-

pellants were accorded their rights, I find no harmful error

in this regard. I note that none of the instant appellants

made an oral reply.

* * * * *

42a

DECISION

* * * * *

The agency’s decision to remove Carl E. Vaughn is sus-

tained.

For the Board:

/s/_ TERRENCE MCSTRAVICK

Terrence McStravick

Presiding Official

oOo

43a

APPENDIX H

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DENVER REGIONAL OFFICE

CASE NO. DE075281FO581

CASE NO. DE075281F0602

Gary J. AYERS, ETAL. [- ]

MICHAEL M. HARP, ET AL.

Vv.

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

DATE: Feb. 1, 1983

INITIAL DECISION

{Relevant excerpts relating to respondent Max Winter]

I. Introduction

Appellants Ayers and Harp are lead appellants for two

groups of appellants consisting of 42 former Air Traffic

Control Specialists who were employed at Stapleton Inter-

national Airport Tower in Denver, Colorado. Appellants

have appealed from the action of the agency (FAA) in

removing them from their positions in August and

September 1981.

* * * * *

The hearing on these appeals was held on November 29,

30, and December | and 2, 1982. A representative of the

Leighton firm and the agency attended the hearing.

/ [Footnote omitted}

44a

BEST AVAL

Il. Jurisdiction

Under 5 U.S.C. 7701(a) (1978), an employee may file an

appeal with the Board from an action which is appealable

to the Board under any law, rule, or regulation. The

statutory right of appeal for non-probationary employees

who have been removed from the federal service is set

forth in 5 U.S.C. 7511-7513 (1970). The instant appeals in-

volve actions which are appealable to the Board, and the

appeals were timely filed. See also 5 C.F.R. Part 752

(1982) for the regulatory provisions governing adverse ac-

tions and 5 C.F.R. 1201 (1982) concerning the practices

and procedures followed by the Board in the adjudication

of these types of appeals. Accordingly, these appeals have

been accepted for adjudication.

Ill. Analysis and Findings

The agency actions are based on the following charges:

(1) violation of 5 U.S.C. 7311 which provides that an in-

dividual may not hold a position with the U.S. Govern-

ment if he or she participates in a strike against the govern-

ment, and 18 U.S.C. 1918 which provides that participa-

tion in a strike against the U.S. Government is a crime for

which a sentence of imprisonment can be imposed; and (2)

for several days during August 1981, appellants were ab-

sent without authorization. The proposal notices also

claim that at 7:00 a.m. EDT on August 3, 1981, a nation-

wide strike by Air Traffic Controllers occurred. The

notices stated that because appellants refused to report for

their first scheduled shift after August 3, 1981, they par-

ticipated in that strike and were absent without official

leave (AWOL).

Pursuant to 5 U.S.C. 7513(a) and 7701(c)(1)(B) (1978),

the Board must sustain the agency’s actions if it is sup-

ported by the preponderance of the evidence and was

taken for such cause as would promote the efficiency of

45a

the service. However, the Board is required to overturn the

agency’s action even where it has met the evidentiary

standard in any case where appellants can show that the

agency action were founded on harmful procedural error,

based on any prohibited personnel practice described in 5

U.S.C. 2302(b), or the agency’s actions were not in accord-

ance with the law. See 5 U.S.C. 7701(c)(2) (1978).

In addition to the consideration of alleged procedural

violations which may be raised by appellants, adjudication

of an appeal from any adverse action covered by section

7512 involves consideration of: (1) whether the alleged

conduct actually occurred; (2) if so, whether any

disciplinary action is warranted; and (3) whether the

penalty imposed by the agency is appropriate. See Douglas

v. Veterans Administration, M.S.P.B. Docket No.

AT075299006 (April 10, 1981); Allen v. U.S. Postal Serv-

ice, 2 M.S.P.B. 582 (1980); Citizens to Protect Overton

Park, Inc. v. Volpe, 401 U.S. 402 (1971); Phillips v.

Bergland, 586 F.2d 1007 (7th Cir. 1978); and Young v.

Hampton, 568 F.2d 1253 (4th Cir. 1977).

Also, where the removal is based, in part, on a charge of

absence without leave (AWOL), the agency must show: (1)

that appellant was, in fact, absent on the dates in question;

and (2) the action of placing appellant in an AWOL status,

as opposed to other types of approved leave status, was

proper. See Bavier v. Department of Transportation,

M.S.P.B. Docket No. SE075209009 (February 10, 1981);

McDonough v. U.S. Postal Service, 4 M.S.P.B. 441

(1980); and Jn re Van Scriver, 1 M.S.P.B. 94 (1979).

In support of its charges that appellants participated in

a strike, the agency filed a motion with the Denver

Regional Office on February 26, 1982, wherein it moved

for the preceding officials to take official notice that a

strike was commenced by the Professional Air Traffic

Controllers Organization (PATCO), its members, agents,

employees, and others acting in concert with them, on or

46a

about August 3, 1981. After reviewing the evidence of-

fered by the agency in suppport of the motion and any

evidence provided by the parties in opposition to the mo-

tion, the Denver Regional Office issued an order on April

19, 1982, granting the motion. Upon receipt of Ketchem v.

Department of Transportation, M.S.P.B. Docket No.

DA075281F0713 (May 28, 1982), and in response to the

Board’s findings in that case, this office modified its tak-

ing of official notice by restricting the length of time in-

volved to include from August 3 through August 6, 1982.

Under 5 C.F.R. 1201.67 (1982), where official notice is

_ taken of any fact, a party’s burden of proving that fact is

satisfied. However, the taking of official notice that a

strike by PATCO commenced on August 3 and continued

through August 6 does not relieve the agency of proving

that the appellants, in these cases, participated in the

strike, or if appropriate, their participation continued

after August 6, 1981.

The agency has presented evidence to show that the

strike continued past August 6, 1981. The evidence con-

sists Of a newspaper article (Agency Ex. C), an opinion

rendered by the Federal Labor Relations Authority (Agen-

cy Ex. D), and testimony by Temple Johnson, Manager of

Denver Tower, which indicates that the union continued

to strike well beyond the end of August 1981. Other

evidence offered by the agency included a copy of a

PATCO publication (Agency Ex. B) dated October 8,

1981, which is signed by Robert E. Poli, President of the

PATCO, and addressed to all PATCO members. In that

document, Mr. Poli states that “we are now 67 days into a

strike that many of you thought would last no more than a

few days or weeks.”

In some cases, appellants have expressed confusion over

the length of the strike due to various statements by

government officials. But this alleged confusion is in

direct conflict with the statements that were being made

47a

by their own union officials at the national level. The na-

tional level officials had no doubt but that they were still

engaged in a strike action, and this information was being

disseminated to all members through union newsletters.

The union initiated the strike, and there is no evidence that

by the end of August, for purposes of these appeals, that

the union had declared the strike to be over.

According, I find that evidence of appellants actions

along with the other evidence presented by the agency

clearly shows that the strike continued after August 6.

Regarding the charges of participating in a strike, in

United Federation of Postal Clerks v. Blount, 325 F.

Supp. 879 (D.D.C. 1971), aff'd 92 S.Ct. 80, 404 U.S. 802

(1972), the court defined the words “strike” and “par-

ticipate” as they are used in statutes relating to striking

against the U.S. Government. Those words, are used in

such statutes, mean “an actual refusal in concert with

others to provide services to one’s employer.” Further, in

Schapansky v. Department of Transportation, M.S.P.B.

Docket No. DA075281F1130 (October 28, 1982), the

Board heid that the agency could make a prima facie case

that a person was withholding services in concert with

others, i.e., striking, by showing the employee’s

unauthorized absence from duty during the course of the

strike. It is not necessary for the agency to demonstrate

that appellant took part in picketing activities. Schapan-

sky, supra.

Such a prima facie case may be rebutted by the

employee by showing that he had no knowledge of the

strike or by showing that his absence was due to some

other factor than intentional participation in the strike.

Schapansky, supra. The agency must, of course, prove

participation in the strike by the preponderance of the

evidence. See 5 U.S.C. 7701(c)(1)(B) (1978). See also

Schapansky, supra.

48a

In considering both the charge of striking and AWOL,

it is noted that the specifications set out in the charges are

limited by the date the agency issued each appellant a

notice of proposed removal. Since 5 U.S.C. 7513(b)(1)

(1978) entitles each appellant to be notified in writing of

all specific reasons for the proposal action, it wouid be im-

proper for the agency to charge appellants with other acts

of alleged misconduct without issuing a new notice or an

amendment to the original notice. Clearly, this does not

restrict the agency from submitting evidence concerning

events that occurred after the issuance of the proposal

notices, but that evidence, in ordered [sic] to be considered

in this appeal, must be relevant to the specifications set out

in the notices.

In support of the charges of AWOL, the agency

presented the testimony of Johnson to show that ap-

peilants were assigned shifts by the agency at some point in

time from August 3, 1981, through August 24, 1981. The

agency offered a summary of the assigned shifts for all ap-

pellants which had been prepared by Johnson (Agency Ex.

AAA). Johnson also testified that due to an operational

emergency, he had taken steps to cancel all approved leave

effective August 1, 1981. In some cases, the agency was

unable to contact some of the appellants who had already

left on their respective vacations. In those cases, ap-

pellants were expected to resume their normal shifts or

other assigned shifts as soon as they were contacted and

their leave was canceled, or if the agency was unable to

contact them, to resume their normal shifts upon the com-

pletion of their scheduled leave. However, in all cases,

Johnson has stated that the appellants were absent without

authorization and, in every case, appellants failed to con-

. tact the agency to request leave or to offer an explanation

for their absence during the time in question. Johnson also

49a

stated that all appellants were placed in an AWOL status

for each day they were assigned a shift and did not report

for duty.

With the exception of certain appellants, discussed

below, it is undisputed that appellants were absent without

official leave as charged. Accordingly, the charges of

AWOL are sustained against these appellants.

* * * * *

Winter contends that he was a part of the PATCO na-

tional bargaining team. As a member of that team, he was

required to attend the negotiations in Washington, D.C.,

on or about August 3, 1981. His attendance was at the re-

quest of the chief spokesman (Reardon) for PATCQ’s

negotiating team. In an affidavit prepared by Dennis

Reardon, he (Reardon) admits that he failed to follow the

usual procedures in notifying the agency of his actions but

contends that his actions were proper. Further, that

Winter should have been placed in a proper pay status

while attending that union session.

The agency asserts that Winter was contacted by his

supervisor on August 2 and advised that he was expected

to report for duty. Winter did not inform the supervisor of

this pending trip to Washington, D.C., during that con-

versation. In fact, Winter did not even indicate that he

would not be reporting as directed. Johnson testified that

procedures had been established for releasing those work-

ing controllers from duty to attend the negotiating ses-

sions. In the case of Winter, those procedures were not

followed, and therefore, Winter was absent without

authorization. It is also noted that an affidavit prepared

by Edward Curran on August 9, 1982, indicates that

Winter was not an authorized member of the team after

July 31, 1981. In view of this evidence, I find that Winter’s

attendance at the meeting in Washington, D.C., did not

excuse or relieve him from the responsibility of either

reporting or obtaining clearance from the agency to attend

50a

the meeting. Accordingly, I find that the agency’s action

of placing Winter in an AWOL status during the time in

question was proper. The charge of AWOL is sustained.

* * * * *

Regarding the charges of striking, the evidence shows

that all of the appellants were AWOL (unauthorized

absence) during the course of a nationwide strike by

PATCO. Therefore, I find that the agency has established

a prima facie, case that all appellants were participating in

the strike.

Based on a prima facie showing by the agency, the

burden of going forward with the evidence shifts to ap-

pellants. Appellants have not produced any credible

evidence to show that they had no knowledge of the strike.

* * * * *

Accordingly, I find that none of the appellants have

presented any credible evidence to rebut the agency’s

prima facie case. Therefore, I find that the agency’s prima

facie case is sufficient to support the charge that ap-

pellants were striking against the federal government by

the required standard of proof, and the charges are sus-

tained.

* * * * *

Appellants’ argument that President Reagan made the

decision to fire all air traffic controllers on August 3,

1981, is not persuasive. I find that President Reagan’s

statement on August 3, 1981, was his summary of the law

that those federal employees who participated in a strike

against the federal government would be removed. That

is, the President was stating the policy his administration

would follow in response to appellants’ actions.

In addition to recognizing this law, President Reagan

granted a grace period to those air traffic controllers who

returned within 48 hours. If appellants were confused by

Sla

this statement, the best way to clarify the matier would

have been to call local officials and question them about

the matter.

IV. Decision

The agency actions of removing appellants are hereby

AFFIRMED. However, the agency is ordered to pay all

appellants for the period from their attempted return to

duty until their removals were effected.

An appropriate official of the agency must furnish this

office with evidence of its compliance with the order con-

cerning appellants within ten (10) calendar days of the date

the decision and order become final. If the agency files a

petition for review, an informational copy of it should be

sent to this office for its compliance records.

* * * * *

For the Board:

/s/ JOSEPH H. HARTMAN

Joseph H. Hartman

Presiding Official

52a

APPENDIX I

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DENVER REGIONAL OFFICE

CASE NO. SE075281F0263

ROBERT A. BOYD, ETAL. [~]

V.

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

DATE: Jan. 26, 1983

INITIAL DECISION

{Relevant excerpts relating to respondent David Fitzgerald]

I. Introduction

Appellant Boyd is the lead appellant for a group of 26

former Air Traffic Control Specialists who were employed

at the Anchorage TRACON, Anchorage, Alaska. Ap-

pellants have appealed from the action of the Federal

Aviation Administration in removing them from their

positions in August 1981. Pursuant to § C.F.R. 1201.36(b)

(1982), these appeals were consolidated for hearing and

adjudication based on commonality of issues and facility.

The appeals were originally filed in the Board’s Seattle

Regional Office; aowever, due to the administrative work

[Footnote omitted]

53a

load in that office, the appeals were transferred to the

Denver Regional Office for a hearing and adjudication.

* * * * *

The hearing on these appeals was held on October 6, 7,

and 12, 1982.

Il. JURISDICTION

Under 5 U.S.C. 7701(a) (1978), an employee may file an

appeal with the Board from an action which is appealable

to the Board under any law, rule, or regulation. The

statutory right of appeal for non-probationary employees

who have been removed from the federal service is set

forth in 5 U.S.C. 7511-7513 (1978). The instant appeals in-

volve actions which are appealable to the Board, and the

appeals were timely filed. See also 5 C.F.R. Part 752

(1982) for the regulatory provisions governing adverse ac-

tions and 5 C.F.R. 1201 (1982) concerning the practices

and procedures followed by the Board in the adjudication

of these types of appeals. Accordingly, these appeals have

been accepted for adjudication.

f

Ill. ANALYSIS AND FINDINGS

The agency actions are based on the following charges:

(1) violation of 5 U.S.C. 7311 which provides that an in-

dividual may not hold a position with the U.S. Govern-

ment if he or she participates ina strike against the govern-

ment, and 18 U.S.C. 1918 which provides that participa-

tion in a strike against the U.S. Government is a crime for

which a sentence of imprisonment can be imposed; and (2)

for several days during August 1981, appellants were ab-

sent without authorization. The proposal notices also

claim that at 7:00 a.m. EDT on August 3, 1981, a nation-

wide strike by Air Traffic Controllers occurred. The

notices stated that because appellants refused to report for

their first scheduled shift after August 3, 1981, they

54a

participated in that strike and were absent without official

leave (AWOL).

Pursuant to 5 U.S.C. 7513(a) and 7701(c)(1)(B) (1978),

the Board must sustain the agency’s action if it is sup-

ported by ihe preponderance of the evidence and was

taken for such cause as would promote the efficiency of

the service. However, the Board is required to overturn the

agency’s action even where it has met the evidentiary

standard in any case where appellant can show that the

agency action was founded on harmful procedural error,

based on any prohibited personnel practice described in 5

U.S.C. 2301(b), or the agency’s action was not in ac-

cordance with the law. See 5 U.S.C. 7701(c)(2) (1978).

In addition to the consideration of alleged procedural

violations which may be raised by appellant, adjudication

of an appeal from any adverse action covered by section

7512 involves consideration of: (1) whether the alleged

conduct actually occurred; (2) if so, whether any

disciplinary action is warranted; and (3) whether the

penalty imposed by the agency is appropriate. See Douglas

v. Veterans Administration, M.S.P.B. Order No.

AT075299006 (April 10, 1981); Allen v. U.S. Postal Serv-

ice, 2 M.S.P.B. 582 (1980); Citizens to Protect Overton

Park, Inc. v. Volpe, 401 U.S. 402 (1971); Phillips v.

Bergland, 586 F.2d 1007 (7th Cir. 1978); and Young v.

Hampton, 568 F.2d 1253 (4th Cir. 1977).

Also, where the removal is based, in part, on a charge of

absence without leave (AWOL), the agency must show: (1)

that appellant was, in fact, absent on the dates in question;

and (2) the action of placing appellant in an AWOL status,

as Opposed to other types of approved leave status, was

proper. See Bavier v. Department of Transportation,

M.S.P.B. Order No. SE075209009 (February 10, 1981);

McDonough vy. U.S. Postal Service, 4 M.S.P.B. 44]

(1980); and Jn re Van Sciver, 1 M.S.P.B. 94 (1979).

55a

In support of its charge that appellants participated in a

strike, the agency filed a motion with the Denver Regional

Office on February 26, 1982, wherein it moved for the

presiding officials to take official notice that a strike was

conimenced by the Professional Air Traffic Controllers

Organization (PATCO), its members, agents, employees,

and others acting in concert with them, on or about

August 3, 1981. After reviewing the evidence offered by

the agency in support of the motion and any evidence pro-

vided by the parties in opposition to the motion, the

Denver Regional Office issued an order on April 19, 1982,

granting the motion. Upon receipt of Keftchem v. Depart-

ment of Transportation, M.S.P.B. Order No.

DA075281F0713 (May 28, 1982), and in response to the

Board’s findings in that case, this office modified its tak-

ing of official notice by restricting the length of time in-

volved to include from August 3 through August 6, 1982.

Under 5 C.F.R. 1201.67 (1982), where official notice is

taken of any fact, a party’s burden of proving that fact is

satisfied. However, the taking of official notice that a

strike by PATCO commenced on August 3 and continued

through August 6 does not relieve the agency of proving

that the appellants, in these cases, participated in the

strike, or if appropriate, their participation continued

after August 6, 1981.

Regarding the charges of participating in a strike, in

United Federation of Postal Clerks v. Blount, 325 F.

Supp. 879 (D.D.C. 1971), aff'd 92 S.Ct. 80, 404 U.S. 802

(1972), the court defined the words “strike” and “par-

ticipate” as they are used in statutes relating to striking

against the U.S. Government. Those words, as used in

such statutes, mean “an actual refusal in concert with

others to provide services to one’s employer.” Futher, in

Schapansky v. Department of Transportation, M.S.P.B.

Docket No. DA075281F1130 (October 28, 1982), the

Board held that the agency could make a prima facie case

56a

that a person was withholding services in concert with

others; i.e., striking, by showing the employee’s

unauthorized absence from duty during the course of the

strike. It is not necessary for the agency to demonstrate

that appellant took part in picketing activities. Schapan-

sky, supra.

Such a prima facie case may be rebutted by the

employee by showing that he had no knowledge of the

strike or by showing that his absence was due to some

other factor than intentional participation in the strike.

Schapansky, supra. The agency must, of course, prove

participation in the strike by the preponderance of the

evidence. See 5 U.S.C. 7701(c)(1)(B) (1978). See also

Schapansky, supra.

Since one of the criteria to be considered in the charges

of striking relates to appellants’ absences during the strike,

I will turn first to a consideration of the charges of absence

without leave (AWOL).

At the hearing, the agency and the representative from

the Leighton firm stipulated to the following facts: (1) all

appellants signed an oath of office and affidavit, at the

time of their appointment to a position with the FAA,

avowing not to participate in a strike against the federal

government; (2) each appellant had received a briefing on

the illegalities of striking prior to August 3, 1981; and (3)

none of the appellants were at work after August 3, 1981.

Under 5 C.F.R. 1201.66 (1982), the agency’s burden of

establishing the foregoing facts is satisified. It is noted that

Evanoff was not included in this stipulation. Therefore,

the agency still has the burden of establishing those facts

in his case.

The agency has presented time and attendance records,

various written statements prepared by supervisors during

the time in question and testimony at the hearing by Mr.

Joritz, the Manager of the Anchorage TRACON, to show

that all of the appellants were scheduled for duty at some

es ee ee

57a

point in time between the dates of August 3 and August 6,

1981. Joritz testified in detail about each appellant con-

cerning their assigned shifts. He stated that all of the ap-

pellants were placed in an AWOL status during the time in

question because they did not report for duty as sched-

uled, and they had not contacted the agency to explain

their absences from duty. Joritz also testified that Evanoff

was assigned several shifts during the same period of time,

but he did not report for duty or contact the agency to ex-

plain his absence from duty. Therefore, he was also placed

in an AWOL status. With the exception of Ronaldson and

Fitzgerald, none of the appellants have presented any

evidence or argument to refute the fact as presented by the

agency on the charges of AWOL.

* * * * *

Regarding Fitzgerald, he argues that as a part of the

PATCO national bargaining team he was required to

travel to Washington, D.C., on or about August 1, 1981,

at the request of Dennis M. Reardon, chief spokesman for

PATCO’s negotiating team. In an affidavit prepared by

Reardon dated September 18, 1982, Reardon admits that

he failed to follow usual procedures in notifying the agen-

cy of his actions, but contends that his actions were proper

and Fitzgerald should have been placed in a proper pay

status during the time in question.

The agency argues that Fitzgerald did not follow the

proper procedures for obtaining clearance from the ap-

propriate agency officials to attend any meeting in

Washington, D.C. Dean Childs, Manager of the Labor

Relations Branch in the Alaska Region, testified that he

was responsible for coordinating with the agency’s na-

tional labor office on the attendance of working con-

trollers as regional representatives at the national

negotiating sessions. He stated that Fitzgerald did not

follow any of the normal procedures, agreed to between

58a

the agency and the union, in attending the meeting in

Washington, D.C. Therefore Childs contends that Fitz-

gerald’s absence from his assigned shift was unauthorized.

It is also noted that an affidavit prepared and signed by

Edward V. Curran on August 9, 1981, indicated that Fitz-

gerald was not even an authorized member of the national

negotiating team anytime after July 31, 1981. Curran is

the Director of the agency’s Office of Relations. In view of

this evidence, I find that Fitzgerald’s attendance at a

meeting in Washington, D.C. did not excuse or relieve him

from the responsibility of either reporting for duty as

scheduled or obtaining the necessary clearance and

authorization to attend the meeting.

Accordingly, I find that the agency has sustained the

burden of proving that appellants (including Ronaldson

and Fitzgerald) were absent from certain shifts, as

charged, without official leave. Therefore, the charges of

AWOL are sustained.

Regarding the charges of striking, the evidence shows

that all of the appellants, including Evanoff, were AWOL

during the course of a nationwide strike by PATCO. In

view of the foregoing, I find that the agency has estab-

lished a prima facie case that all of the appellants were

participating in the strike.

Based on a prima facie showing by the agency, the

burden of going forward with the evidence shifts to ap-

pellants. Appellants have not produced any credible

evidence to show that they had no knowledge of the strike

or that their absences were due to some other factor than

intentional participation in the strike or any other evidence

to rebut the agency’s evidence on this charge. Accordingly,

I find the agency’s prima facie case is sufficient to support

its charge that appellants were striking against the federal

government by the required standard of proof, and that

charge is sustained.

* * * * *

59a

In summary, the agency charges are supported by the

preponderance of the evidence and the actions taken pro-

mote the efficiency of the service. Further, the penalty im-

posed was not unreasonable. Also, the agency did not

commit harmful error in the processing of their actions.

IV. DECISION

The agency action of removing appellants is hearby af-

firmed.

For the Board:

/s/ JOSEPH H. HARTMAN

Joseph H. Hartman

Presiding Official

60a

APPENDIX J

UNITED STATES OF AMERICA

MERIT SYSTEMS PRGTECTION BOARD

WASHINGTON REGIONAL OFFICE

CASE NO. AT075281F2351

GERALD L. AGOLINI, ET AL. '!

v.

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

DATE: Jan. 14, 1983

[Relevant excerpts relating to respondent William Sedgwick]

INTRODUCTION

Appellants filed appeals from the agency’s actions

removing them from the position of Air Traffic Control

Specialist.

JURISDICTION

The actions appealed were effected under subpart D of

Part 752 of the Office of Personnel Management regula-

tions, which was promulgated pursuant to OPM’s authori-

ty under 5 U.S.C. § 7514. The record reflects that ap-

pellants were covered employees as defined by subpart D,

and were entitled to appeal these actions to the Board. See

5 U.S.C. §§ 7511(a)(1)(A), 7512, 7513(d); 5 C.F.R.

' This decision encompasses the appeals of 94 former air traffic

controllers * * *.

ee ee

6la

§§ 752.401(a), 752.401(b)(1), 752.405(a). I therefore find

that the appeals are properly before the Board for ad-

judication.

ANALYSIS AND FINDINGS

The agency proposed appellants’ removals on the basis

of two charges: (1) participation in a strike against the

United States Government in violation of 5 U.S.C. § 7311

and 18 U.S.C. § 1918; and (2) unauthorized absence. Both

charges stem from appellants’ failure to report for duty on

various dates in August of 1981. ;

The Board has taken official notice of the fact that

members of the Professional Air Traffic Controllers

Organization (PATCO) engaged in an illegal strike against

the Federal Government from August 3, 1981 through at

least August 6, 1981. Ketchem v. Department of Trans-

portation, MSPB Docket No. DA075281F0713 (5/28/82).

In addition, the Board has found that an employee’s

unauthorized absence during the period of such a strike

may constitute a prima facie case of said employee’s par-

ticipation therein. Schapansky v. Department of

Transportation, MSPB Docket No. DA0725281F1130

(10/28/82); Jones v. Tennessee Valley Authority, MSPB

Docket No. AT07528010300 (2/19/82); Ducket and

Yardley v. Tennessee Valley Authority, MSPB Docket

No. AT07528010325 (2/19/82).

Striking has been defined as the “actual refusal in con-

cert with others to provide services to one’s employer.”

United Federation of Postal Clerks v. Blount, 325 F.

Supp. 879 (D.D.C.), affirmed, 404 U.S. 802 (1971). In

Ketchem, supra at page 9, the Board stated that where an

employee is charged with participation in the PATCO

strike “on dates subsequent to August 6, 1981, the agency

bears the burden of proving by direct evidence that a strike

was in fact in progress on the date charged, and that the

employee could have returned to work on that date.” In

\

62a

this regard, there is no dispute that an employee who

failed to report for his or her “deadline shift” (the first

regularly scheduled shift after 11:00 a.m. on August 5,

1981), would not have been returned to an active duty

status if he or she attempted to return after his or her

deadline has passed. While picketing and other “strike ac-

tivity” continued for several weeks, or even months, after

August 6, 1981, the agency effectively ended any par-

ticular employee’s participation in the strike after the

employee had missed the “deadline shift”, and no longer

had an opportunity to “provide services”, per se. My find-

ings below with respect to the striking charge will therefore

be limited to each appellant’s duty days from August 3,

1981 through the date of his or her “deadline shift”. This

same rationale, however, is inapplicable to the charge of

unauthorized absence. Notwithstanding the fact that an

employee would not have been placed in an active duty

status if he or she attempted to return to work after his or

her deadline had passed, such an employee could have

been entitled to be placed in a non-duty status, with pay.

At a minimum, any absences on and after the date that the

agency rebuffed his or her offer to return to work would

be “authorized”, regardless of the pay or leave status

recorded by the agency. However, unless the employee ap-

peared for duty, or otherwise communicated to the agency

a desire to return to work, I find that the agency could

validly charge the employee with unauthorized absence on

previously scheduled duty days subsequent to his or her

deadline.

The agency presented the testimony of the Chief or

Deputy Chief of each of the three facilities involved,

and/or documentary evidence (watch schedules, sign-on

logs, memoranda and/or time and attendance records) to

establish that each of the appellants was absent without

authorization on one or more days during the strike, and

that each failed to report for his or her “deadline shift”. |

eo

63a

find this evidence to be sufficient to establish a prima facie

case of strike participation with respect to each of the ap-

pellants. In light of this finding, the burden of persuasion

now shifts to each appellant to show that he or she “had no

knowledge of the existence of the strike or to demonstrate

that his [or her] absence was due to some factor other than

intentional participation in the strike.” Schapansky, supra

at 6. In this regard, several of the appellants did allege

specific reasons for their absences. Each will be addressed

below. ;

William Sedgwick became a member of PATCO’s na-

tional negotiating team in June of 1980 and, prior to

August of 1981, he made several trips to Washington,

D.C. in connection with contract negotiations. On each of

these occasions, he received prior approval from his Chief,

John Atkinson, who authorized the issuance of a Govern-

ment Travel Request (GTR) for appeilant’s airline tickets

and, if time allowed, the issuance of a travel advance. Ap-

pellant claims that he went to Washington, D.C. on

August 2, 1981 based upon a July 30 or 31, 1981 com-

munication from Robert Poli, President of PATCO Na-

tional. He testified that he did not request Mr. Atkinson’s

approval of the trip because Mr. Poli had told him to keep

it a “secret”, and because Mr. Atkinson had once told him

that he need not get his approval in advance if he got a

“last minute” call. He also testified that he believed

himself to be on administrative ieave on and after August

3, 1981.

I find Mr. Sedgwick’s explanation of his absences to be

incredible for several reasons. There was no “last minute”

notice of the trip. Appellant knew of the trip 2-3 days

prior to his departure, yet did not request Mr. Atkinson’s

approval. Nor did he subsequently contact Mr. Atkinson

to obtain approval as he was supposed to under his own

“last minute” scenario. In addition, the agency submitted

an affidavit from the Director of FAA’s Office of Labor

64a

Relations who stated that PATCO had not requested, nor

had his office approved, the attendance of Mr. Sedgwick

at any negotiating sessions after June of 1981. (Agency

Ex. 4). On cross examination, appellant admitted that he

attended no negotiating sessions in August of 1981, but

rather was waiting to review any proposed contract. Had

the trip been authorized, there would have been no reason

to keep it a “secret”. I therefore find that appellant’s trip

and his absences on and after August 3, 1981 were

unauthorized, and that appellant was so aware. I| further

find that his absences were not the result of any belief on

his part that he was on administrative leave.

* * * o* *

I find that the agency has established a prinna facie case

of strike participation with respect to all of the appellants,

and that none of them has presented persuasive evidence

in rebuttal. The same evidence establishes that appellants

were absent without authorization, as alleged. I therefore

find that the charges as set forth in the proposal notices

are supported by a preponderance of the evidence, and are

sustained.

For the Board:

/s/ JOSEPH E:. CLANCY

Joseph E. Clancy

Presiding Official

US. GOVERNMENT PRINTING OFFICE: 1987—181-483/40181