# Petition for Writ of Certiorari — Department of Transportation v. Fitzgerald > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0207%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1987 - **Citation:** 480 U.S. 934 ## Text 36 - \) ag 12 6 Sugiame Court, US, FiLED Bet 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 Ne i ib an elecebeueeale l re eek own eu ect hedesedeedes | Se 2 Reasons for granting the petition ......................... 10 ISS Tey eee ee ee ee 17 ag dp awa oend oapesceueece la es Riad ass sk be nb od ek ee sk bvesavee lla SR OSE a 12a EN See a a an lda NE eee as ou duped tense vd eseed ie 22a EES a a .. ee Ne eg lic aw kce tdweiee susie dikes 32a EES EES rr 43a EEE EE EEN IES Dg ne 52a GE a 8b eau wa alee es or ale es Parsee Vs 60a 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 CR so ck eichivdsles vakawaberooekevees iirc o hus Edae esas desea reread vee ax ee I cds ong 5 ONS Chee ee ee wn fie oo, ee ee ee ir SRR kg 6d o's 2b oer t esrb esesse tres SEF es HID. i o:5'44.0.0 ¢.cb-ve we PES SER UCR 5, Bib Pay 8 ere 2, 3, te ad ge eee ee Se CU in ae hak woke bene eeeeixe ns De ravens Giveeu ces cear tesa veuceyvenn Oe. I open es pues Gee here's eee wnek 509 Bi Ste 0. Gere rare. SR, PUT is oid oe cte tera d eee menses 3, SOR Both Sr errr es rrr es mrt SOs SE ike nrc daneekkcenswspieveisons 5, Ek Ck reer rrr rer er re eter SE Cs TD FURS 6 6 6b coed ee cree newsnnes RAR om | en res re eee ee ei A de”. ee rr eee zm hy 4 Ba Be OSs 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] -2ER fo | Err ere rT eae Tee ee ee rere 12 GIR So.” ee eer re ee er rere re ee 2 SO PUREE sao ed dpa ee ba ORS p Renae ese Ke Jy a, 03 RS ee ere erie re eee a ays gS ae ere rn rere we re tire 3 he Fo > SRE Serer iar it ce fa ak | eee errr ee eee cy ce Be Aa, RED, ok 0 ids 8.oio had Veo aren ees ae 16 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 > 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 i ; a ' y | : j ? ‘ ' ; ry] Pe ros a A SN IT ES a TAS a BERNER Se or Ja (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 c [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0207%3A1. Public record. Not legal advice.