Petition for Writ of Certiorari — Anderson v. United States Department of Transportation
Supreme Court brief1988
Ask Donna
What actually matters in this document.
Text
Serene Coot as |
87-1458 | FILED
FEB 16 1588
JOSEPH F. SPANIOL, JR,
N O. CLERK
In The
Supreme Court of the United States
OcroBerR TERM, 1987
— TERRY L. ANDERSON, ET AL a
Petitioners,
V.
UNITED STATED DEPARTMENT
OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Respondents.
On Petition for Writ of Certiorari to the United States
Court of Appeals for the Federal Circuit
PETITION FOR WRIT OF CERTIORARI ~
Phillip S. Wood
Pasky AND Woop
220 E. Galena Blvd.
P.O. Box 2729
Aurora, IL 60507
312/844-2560
Gary Ethan Klein
1625 K Street N.W., Suite 790
Washington, D.C. 20006
Schelfer Printing Services, Inc. — (312) 263-6850
QUESTIONS PRESENTED
I.
Whether a case based upon hearsay spoiled vy massive al-
terations by anonymous declarants can suffice as "substan-
tial evidence” under 5 U.S.C. Section 7703?
If.
Whether Federal Sector employees who are concededl
denied the right of oral reply provided by 5 U.S.C. Section
75 13(b)(2) can enforce that right under the Federal Circuit's
requirement of a showing that the outcome would have been
different?
i i |
oe
GROUP I PETITIONERS
(68)
Terry Anderson Ellis D. Manuel
James M. Boylan Lloyd E. Martinez
Roy R. Bozych, Jr. James M. Marzalek
Dennis J. Bretall David D. Masson
Willard A. Bronger Larry L. McGhinnes
Robert J. Budzynski Gregory G. Nelson
James A. Campbell James R. Nichols, Sr.
Eric R. Carlson Stephen A. O’Boyle
Gregory A. Carlson Joseph A. O’Brien
Leonard E. DeHainaut Dennis D. O’Connor
Raymond Dertz Jay G. Olson
Charles A. Dike Michael G. Parr
Knute R. Dresden John A. Pearson
Donald M. Erdman Wayne L. Preston
Richard E. Frielink Donald A. Ring
Alexander F. Goralewski Roy E. Robb
Daniel J. Gron Bobby G. Roberts
Richard P. Grow William F. Roller
Richard L. Hamilton Edwin F. Ruppert
William L. Hamilton Charles M. Sanborn, Jr.
David W. Heeg John D. Schmitt
Alan F. Hoening Ronnie R. Scott
Ronald D. Isben William H. Siebold
Richard C. Karsten Cyril F. Snow
Steven F. Kehe Ronald M. Sonkin
Dwayne D. King Roy W. Sternberg
William S. Kingery Joseph A. Stupec
John R. Kuhlman John L. Sumner
Thomas A. Kukla Henry F. Theodore
Robert E. Lambrecht Norman E. Tracy
Thomas E. Leckbee Albert A. Veverka
athe
GROUP I PETITIONERS (CONT.)
John C. Vogel
Robert H. Voss
Patrick D. West
Albert R. Wickham
James E. Wilson
Max J. Winz
GROUP II PETITIONERS
Allan A. Broholm
Robert A. Carlson
Bernard D. Carroll
Robert J. Collins
Rick R. Crook
Jeral W. Dennin
Jean C. Eden-Kemphues
Edgar P. Grabowski
Fredrick L. Hoffman
Michael J. King
David E. Kish
Dennis Logerquist
(23)
Howard P. Morris
Rudolph C. Radnoff
Leland E. Rasniussen
Stanley A. Rudd
Charles R. Salvaggoione
Howard Taggart
Terry L. Thalman
Frederrich W. Vogelphol
Charles L. Wethern
Randall Willer
Walter Wolny
as |
at:
TABLE OF CONTENTS
PAG!
Questions Presented ..........0.... 0. cc cee cece eeeee |
Identification of Parties............................. i
lable of Authorities................................ \
RON IN gn < 5 woven caeav kas vercuieroene,
PIII rT Nore Ole ME and Sein ‘
Statement of the Case ............... RT Ae CS Pan Ry 3
Reasons for Granting the Petition:
1. Public Confidence in the Integrity of the
MSPB System is at Stake... 2... .0020«.. l4
2. The Federal Circuit’s Decision Turns Both
the Review Statute and Hornbook Law
i eg Lee oh et a 16
3. Itis Impossible to Demonstrate That the
Outcome Would Have Been Different if
the Oral Reply Right Had Not
ne 19
ot hete te tp RDO N On eRe eterno ee
—YVY—
TABLE OF AUTHORITIES
PAGES
CASES:
, leveland Board of Ed. v. Loudermill,
CEE Se tee ok 5 os ee eee
Consolidated Edison Co. v. NLRB, 305 U.S. 197,
Pee Pe a es cle sk aa ee 18
Hazel-Atlas Glass Co. v. Hartford Empire Co.,
Reg OR Wes Fy. | erreur ere nara ar we Ur 8
Palmer v. Hoffman, 318 U.S. 109 (1944) .......... 17
Hoffman v. Palmer, 129 F.2d 976 (C.A. 2., 1942) . 2... 17
Ricucct v. United States, 425 F.2d 1252
(eRe Si 7) re wre ea ae Cre Pe we)” 19
Washington v. United States, 147 F. Supp. 2
io 2 STS se wk here eee ke ee ee
STATUTES:
5 U.S.C. Section 1101 rey Sg o 6.0-a b 2oe eeee 14
SUSE. SOG ToGmenal 6 te ee ees eee eee 3
5 USC, See Tree? «os koe ee ee 14
5 15.34. See Peeee”soA oa be oe eee eee 2
oe Uk, Se EPEEED a 6. as ss 3 Os ee ee z
ce UL SO EG) «6 é oe ee eee 14
LEARNED TREATISES:
McCormick on Evidence (2d ed, Cleary) Section 246 . .18
McCormick on Evidence (2d ed) Section273. ...... 17
2 Wigmore on Evidence, Section291 ........... 17
CONGRESSIONAL HEARINGS:
Subcommittee on Investigation and Oversight, Hearings
on "Examining the Circumstances Surrounding the 1981
Firings of Air Traffic Controllers at the Aurora, Illinois
Air Traffic Control Center” Tr. 3-10-87 .......... 15
No.
In Tru
SUPREME COURT OF THE UNITED STATES
Ocroper Term, 1987
LEONARD E. DEHAINAUT, ET AL
(‘Chicago Center Altered Document Cases”)
Petitioners,
V.
UNITED STATES DEPARTMENT
OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Respondents.
On Petition for Writ of Certiorari to the United States
Court of Appeals for the Federal Circuit
PETITION FOR WRIT OF CERTIORARI
A Writ of Certiorari is respectfully sought to review the
tinal judgment of the United States Court of Appeals for the
Federal Circuit in the ninety one cases consolidated in this
petition.
OPINION BELOW
The opinion of the United States Court of Appeals for the
Federal Circuit is reported at 827 F.2d 1564 (Fed. Cir.. 1987).
This opinion, as well as the decisions of the Merit Systems
!) On suggestion of the respondents, the court below consolidated
these cases for oral argument and subsequent decision.
JURISDICTION
[he jurisdiction of this Court is invoked pursuant to 28
U.S.C. Section 1254(1). The jurisdiction of the Federal ¢
cuit Court of Appeals rested upon 28 U.S.C. Section
1295(aNY)
STATUTES AND REGULATIONS
INVOLVED IN THE CASE
5 U.S.C. Section 7513 provides in pertinent part
'
> } ig > , ‘ le
4 a reasonabie tume, Dut NOT tess
1? .
answer Orally and in writing and to furnish affidavits and
other documentary evidence in support of the answer;
» § U.S.C. Section 7703(c) provides in pertinent part:
Ina ly case filed in the United States Court of Appea S
for the Federal Circuit. the court shall review the record
round
and hold unlawful and set aside any agency actio
to de
(1) arbitrary, capricious, an abuse of discretion Or
otherwise not in accordance with law;
(2) obtained without procedures required by law, rule
or regulation having been followed; or
(3) unsupported by substantial evidence.
=
3. 5 CFR 1201 66 provides in pertinent part:
A stipulation as to any matter of fact satisfies a party’s
burden of proving the fact alleged.
STATEMENT OF THE CASE
Petitioners are former air traffic control specialists of the
FAA’s Chicago Center, Aurora, Illinois, who were ter-
minated based upon charges that they participated in the
PATCO strike of August, 1981.
These cases were consolidated by the Merit Systems
Protection Board in 1982, and have come to be publically
known and referred to as the "Chicago Center Altered Docu-
ment Cases.”
It is undisputed that the only evidence offered against the
Chicago Ceater petitioners was agency hearsay. It is un-
disputed in the record of the Chicago Center cases that the
hearsay was tampered with, in secret, by a select group of
agency employees and contractors for the purpose of
producing evidence which would be passed off as contem-
poraneous business records in the MSPB hearing on
petitioners’ removals. This evidence tampering involved
both the alteration of existing time and attendance records
with thousands of inculpatory entries made anonymously by
unauthorized, non-supervisory personnel, and, in many
cases, the outright manufacture of a record, backdated six to
eighteen weeks, to make it appear original.
The alteration scheme was initially exposed at the MSPB
consolidated hearing on petitioners’ removals in November,
1982. At that hearing, the Chicago Center Chief, after iden-
tifying the Center "documents" as “ordinary course business
records” in direct examination, was confronted with a second
version of the same records which proved there had been
4
massive altered entries placed therein. After giving
numerous, contradictory explanations, this witness ulttmate-
ly disclaimed any knowledge as to how these "records" were
created.
Although the MSPB’s presiding official asked the agency,
on numerous occasions during the hearing to explain the al-
terations, the agency refused to do so.” Ironically, the presid-
ing official’s findings indicated the lack of evidence on the
alterations contributed to its probative value (App. 48):
Mr. Gunter (Chicago Center Manager) was unable
to explain the "discrepancies" between these two
sets of sign-in logs other than to make a vague
statement that the file copy logs were “updated”
and through a series of events at the hearing, no
other evidence has been made a matter of record
concerning when (if ever) the file sign-in logs were
changed, who changed them, for what purpose they
were changed, and which sign-in logs are more ac-
curate. In view of the lack of evidence which would
show that some of the file copy sign-in logs were
doctored" for specific purpose, I am unable to con-
clude that they were altered by the agency in an im-
proper attempt to influence the outcome of these
proceedings, and I find that they cannot be totally
disregarded as probative evidence.
Former Air Traffic Controllers v. Department of Transportation
MSPB CH075281F0834 (1983). H.T. Vol. 6 at 82:
Presiding Official: It seems to me earlier in the hcaring didn’t | mention
the possibility of bringing in some of the personnel specialist who wert
making those alterations - alleged alterations?
Agency Attorney: | believe we did have an off the record discussion, your
honor, and I have tried to find personnel specialists who would be familiar
Unfortunately, because there were several of them doing it, they did th
work and can’t really explain why they did it
a
The MSPB’s presiding official affirmed the agency’s
removal of the Chicago Center petitioners in spite of the
questionable hearsay, noting "the inappropriateness of
making a blanket finding that would * * * be tantamount to
pretending that a strike did not exist at the Chicago Center."
(Id.)
The petitioners listed under the designations "Group I"
appealed the initial MSPB decision directly to the U.S. Court
of Appeals for the Federal Circuit.°
In affirming the MSPB decision on the Group I
petitioners, the majority panel concluded that it was insuffi-
cient for petitioners to point out that the hearsay case against
them lacked any indicia of reliability and accuracy due to the
massive alterations, lack of authentication and lack of any
identifiable declarant. The majority found:
Petitioners argue that requiring them to come for-
ward with evidence of specific error improperly
shifts the burden of proof with respect to hearsay
evidence and that it was incumbent on the govern-
ment to establish the "accuracy" of its records in
order to establish a prima facie case against any
petitioner. Again, we must disagree, if the govern-
ment were required to prove the accuracy of every
entry in order to use any part of the record as
evidence, the hearsay evidence itself would be
merely cumulative and unnecessary.
3) The Group I petitioner’s cases are captioned Terry L. Anderson et
al., CAFC 85-1146 and Leigh Anderson et al., CAFC 85-1824 in the opinion
of the lower court. (App. 2).
4) App. 28.
eo
In contrast, the dissent, Baldwin, J., declared "(m)uch of
that documentation was incomplete, inconsistent, and/or al-
tered after-the-fact. Those records having not been prepared
in the ordinary court of business, the board should have con-
cluded that those records could not serve as evidence against
anyone." (App. 31).
The Group II petitioners” shared the record of the initial
MSPB proceedings on the Chicago Center cases with the
Group | petitioners but unlike the latter group, these
petitioners did not appeal directly to the Federal Circuit.
These petitioners filed a petition for review with the 3-mem-
ber Board of the MSPB, which was an alternative appeal
route under Board procedures.
In a decision dated February 8, 1984, the full Board va-
cated the initial MSPB decision (App. 115). Although
specifically noting that the presiding official had "requested
that the agency introduce additional evidence regarding the
alterations and the reasons for making them in order to
rehabilitate the documentary evidence" and although under-
scoring the fact that "the agency failed to offer any other tes-
timony in rebuttal even though the presiding official gave it
the opportunity to do so," the full Board remanded the case
with directions to give the agency another chance to explain
the altered evidence (App. 118, 129).
The remand hearing (involving only the Group II
petitioners) was held in August, 1984, and the agency
produced some of the participants in the evidence tamper-
ing scheme. The testimony of these individuals raised addi-
tional questions concerning the agency’s hearsay case. The
5) These cases are captioned under Allan A. Broholm, et al., CAFC
85-2814, and Rudolf C. Radnoff, CAFC 85-2821 in the lower court opinion,
and under Behensky et al v. Department of Transportation, No.
(CH075281F0979, in the MSPB opinions of February 8, 1984, December
17, 1984 and July 5, 1985 (App. 115, 121, and 131).
a
following brief summary of this testimony is derived entire-
ly from the admissions of the agency witnesses or the record
stipulations entered by the agency, with appropriate referen-
ces to the remand hearing transcript (herein "R.H.T.").
First the persons who made the inculpatory, altered
entries on the agency documents were not even present or
employed by the FAA Chicago Center at the time of the
events recorded on the documents, and therefore had no
personal knowledge of the truth of any entry they made.
(R.H.T. 524-526). These individuals confirmed that they did
not consult with the area supervisors or anyone else having
personal knowledge of the petitioners’ schedules, absences,
leave or shift swaps. (R.H.T. 195, 253-54, 261-65, 268-69,
271-73, 281-83).
Second, the persons altering the records made thousands
of changes to the original Chicago Center Records.° They
made an indeterminate number of altered entries on
evidence which were ostensibly created by the area super-
visors weeks or months before, without the knowledge of the
supervisors responsible for the records.
6) One of the participants in the scheme admitted that he alone was
responsible for up to three thousand alterations to the Chicago Center’s
MSPB evidence (R.H.T. 1272).
7) The Chicago Center supervisors universally disclaimed any
knowledge of the changes that were made to their records. E.G.,
Supervisor Gould (R.H.T. 803) (Didn’t know who made the alterations
or when); Supervisor Kok (R.H.T. 852, 853) (Persons unknown to him and
without his authority changed leave entries to "AWOL" and other
alterations); Supervisor Sanborn (R.H.T. 888) (Didn’t know who
obliterated annual and sick leave entries and substituted "AWOL");
Supervisor Plasch (R.H.T. 896-97) (None of the entries on his records for
the relevant period were his; wasn’t told of alterations).
<a
In fact, one of the members of the team who tampered
with the evidence admitted they were instructed that
"(e)verything here (in room where alterations made) is
secret, keep it under your hat." (R.H.T. 1055-56).
Third, although the alterations were made long after the
events supposedly recorded on the Chicago Center records,®
the individuals who made the changes did not initial or date
the entries. (R.H.T. 274-277). Consequently the altered
entries were made to appear indistinguishable from original,
contemporaneous entries made by the supervisors, (Id.) The
person in charge of the scheme refused to answer why the al-
tered entries were made without attribution (Id.), however
he conceded thatthe result of that process was a complete
spoilation of the agency’s evidence, i.e., that the agency itself
was unable to distinguish a genuine original entry from a
fake.
Fourth, the agency witnesses admitted, and the agency ul-
timately stipulated that the product of the evidence tamper-
ing was substituted for the original evidence which was then
assembled at the FAA’s regional office for submission to the
MSPB. For example, the individual in charge of the room
where the alterations were performed was forced to admit
that the products of that room were substituted for existing
MSPB evidence after the petitioners uncovered other docu-
ments which confirmed that the FAA region had custody of
the Chicago Center records (for the MSPB litigation) before
the participants in the scheme, according to their own tes-
8) The agency stipulated (in order to cut off further questioning on
the subject) that the alterations were still being made in November, 1981,
almost four months after the dates shown on the evidence.(App.9).
9) The same agency witness was constrained to admit that "no one with
the exception of God could look at these files and tell whether or not they
are accurate.” (R.H.T. 518-520).
=
timony began making the massive changes to this evidence
(R.H.T. 613-4):
Q. O.K. Let’s go over this systematically now.
You were shown a stack of (time and attendance
reports) which were amended in October, Novem-
ber and December, 1981, is that accurate?
A. Yes.
Q. And these ended up in the adverse action
files?
A. Yes. _
Q. And they were amended after a point in time
when (the original version) went to the region?
A. After the files that the region had requested
be sent, yes.
* * «
Q. And as to all the activity that occurred in the
alteration of documents, that is, the personnel
placing AWOL’s on the documents in the war
room, where they did not previously exist, in Sep-
tember and October, 1981, that is the activities of
Mr. Peterson, Mr. Cullerton, Mr. Campbell, Mr.
Erickson and Personnel such as that. These docu-
ments would have had to be sent up to the region
and replaced other documents is that accurate?
A. Yes.
In an effort to truncate further testimony on this process
of substituting altered records for original evidence, the
agency entered a record stipulation which simply admitted
=
it occurred. (R.H.T. 694-95). 1 The stipulation conceded
that an unknown number of changes to the Chicago Center
records (304’s) were made as late as November, 1981 (Id.).
As to the substitution of the altered version for original
evidence, the stipulation stated:
Paragraph 4. These amended 304’s were then
copied and substituted for those in the files, which
(files) eventually were transmitted to the Board as
the appellants’ adverse action files.
Fifth, after the substitution of the altered records for
original MSPB evidence was exposed, the agency was re-
quested to produce the original records for comparison pur-
poses. (R.H.T. 617-18). The agency attorney thereupon
confirmed that the original evidence had been destroyed.
The agency also conceded that it had destroyed all of the
original Time and Attendance reports and all of the "swap
books," which were the only records which documented
scheduling changes between controllers.
As to the question of authentication, the agency did not
produce a single witness to authenticate a single entry on the
watch schedules or time and attendance reports. And, as
noted earlier, the supervisors uniformly disclaimed
knowledge of the massive changes to the logs, including the
inculpatory "AWOL" entries.
10) Although MSPB procedures (S CFR 1201.66) specify that a
stipulation as to any matter of fact satisfies a party’s burden of proving the
_ fact alleged, the Board failed to mention either the stipulation or the
admission and did not find that the evidence was substituted.
11) (R.H.T. 618) ("...there was no reason to keep (the original
records).. sal
12) MSPB file - Agency Response to Motion to Produce. See also,
R.H.T. 939-49 (Supervisor Niemeyer) (would need "swap books" to even
make sense of the watch schedule), R.H.T 803 (Supervisor Gould) (swap
books only way to verify accuracy of the Chicago Center’s Schedules).
By | pe
Q. So everything you were doing in the war room
was for purposes of making up the packets for
MSPB litigation?
A. Which is what it turned out to be, right.
Finally, the Group II petitioners even exposed a mis-
guided attempt to fake certifications on hundreds of agency
documents through the use of a facsimile signature stamp
(R.H.T. 651-53). This scheme failed because the ink on the
signature stamp bled through to the opposite side of the
page, making it possible to show that the copies originally
submitted to the MSPB did not contain the "certification".
(Id.). When challenged to produce a single witness who
would admit using the signature stamp on these records, the
FAA attorney replied, "I have no intention of producing
anybody to that effect." (R.H.T. 765).
These Chicago Center documents, tainted by a systematic,
secret and unauthorized scheme to create an undeter-
mined number of inculpatory entries, and which included an
attempt to pass the entries off as original recordings, was the
sole evidence offered by the agency in these cases. The agen-
cy never produced a single live witness who testified from
personal knowledge concerning any of the petitioners al-
leged participation in the strike. No witness testified that a
particular petitioner was absent without authorization. No
witness even testified that a particular petitioner was even
scheduled on any date relevant to the strike charge.
13) The FAA official who had custody of this MSPB evidence swore
he was not aware of the alteration scheme and had not authorized it.
(R.H.T. 1217). (Shewfelt). This official conceded it was improper to
change the records and stated he would not have certified the Chicago
Center records to the MSPB if he had known of it.
oo
In bringing their appeal to the Federal Circuit under the
substantial evidence review standard mandated by law,!4 the
petitioners pointed out that the MSPB decision in these
cases was repugnant to the record because it failed to men-
tion a single one of at least one hundred seventy eight admis-
sions and stipulations by the agency itself which infected the
probative value of the hearsay case. ~
The majority panel dismissed the petitioners’ many
references to the record admissions as a""broadside" attack.”
Concluding that each of the petitioners carried the burden
of showing the inaccuracy of each entry, the majority found
the agency had no burden to authenticate its documents, or
even to identify the accusers of the petitioners. The majority
found the Board’s "credibility" finding that the participants
in the evidence tampering scheme had no improper motive
unreviewable, even though petitioners’ attack on the Board’s
decision was based entirely on admissions from the same
agency witnesses.
In his dissenting opinion, Judge Baldwin responded (App.
Ji}:
Although the majority recognizes discrepancies in
the record, primary weight is accorded to the deter-
mination by the board that there was no attempt by
the FAA to commit a fraudulent act, a forgery, a
misrepresentation, or to commit perjury. I take no
issue with the board’s "virtually unreviewable"
credibility determination regarding the tack of any
improper intent on the part of the FAA. In focus-
ing on the motives of the FAA, however, the board
14) 5 United States Code, Section 7703.
is) The MSPB decision did not refer to the transcript in a single
instance on these issues.
16) The remand hearing was limited by the Board to an examination of
the process by which the documents were created. Individual evidence
was not allowed. Moreover, the agency did not introduce testimony going
to any individual petitioner.
=
improper intent on the part of the FAA. In focus-
ing on the motives of the FAA, however, the board
has missed the key issue of the reliability of the
record upon which the FAA case is based.
Petitioners in both groups also were denied most of the
rights guaranteed by law, 5 U.S.C. Section 7513(b). For pur-
poses of this petition, however, petitioners limit these issues
to the denial of the oral reply right provided by Section
7513(b)(2) and implementing regulations.
In the Chicago Center cases, the facility management con-
tracted with non-FAA employees to serve as mere record-
ing mediums at the oral replies of the petitioners. These
individuals announced to the petitioners at the outset of the
oral replies that they had no power to make or even recom-
mend a decision, thereby reducing the procedure to an exer-
cise in futility. Both the MSPB and the Federal Circuit
agreed the petitioners were effectively denied this right.
However the Board held, and the lower court affirmed, that
the petitioners had failed to demonstrate the harm in the loss
of rights, by not demonstrating that the outcome would or
might have been different if the oral reply rights had not been
denied. (App. 20, 21). Petitioners assert that such a
demonstration of harm is impossible and, unless this Court
clarifies_the "harmful error" language in the applicable
statute,’ this important right ~ will become sterile and in-
consequential in federal sector removal actions.
17) 5 United States Code, Section 7701(2)(a)(c).
18) See, e.g. Cleveland Board of Education v. Loudermill, 470 U.S. 532
(1985).
>"
REASONS FOR GRANTING THE PETITION
1. Public Confidence In The Integrity Of The MSPB
System Is At Stake.
The "Chicago Center Altered Document Cases" have
called into question the very integrity of the institutions
created by Congress to provide the exclusive means of ad-
judicating federal sector removal actions. 5 U.S.C. 1101, et
seq., Section 7701; 28 U.S.C. Section 1295(a)(9).
The numerous developments in the course of the litiga-
tion of these cases have been reported in no less than forty
articles in the local, regional and national press over the past
two and half years. On several occasions the Chicago Center
Cases became the lead story on the local and regional
television news, and three times was carried on the national
network in Washington.
The very thought that a federal agency, or any litigant,
could prevail in a case based upon nothing more than the
product of evidence tampering raises public concern about
the system which permitted that result. The attorneys for
these petitioners respectfully share these concerns. Ap-
parently a bipartisan Congressional Subcommittee does as
well.
The House of Representatives’ Subcommittee on Inves-
tigations and Oversight, which oversees the Federal Avia-
tion Administration, has engaged in a continuing
investigation of the Chicago Center altered document cases
since July, 1986. Although the Subcommittee’s report and
findings have not been issued as of the date this petition is
filed, the Subcommittee held public hearings on March 10-
11, 1987, following an eight-month investigation on these
cases. Virtually without exception the bipartisan record
==
remarks of the members of the Subcommittee expressed
alarm and disgust in describing what occurred in these cases.
One Subcommittee member stated, at the outset of the
public session, that "we are kind of in a unique situation here
in that, before the hearing begins, we have evidence in fact
that there were alterations, forgeries, substitution of docu-
ments, and a whole host of other acts that are very, very ques-
tionable.”
Another member remarked, "(i)t is outrageous what we
ure hearing and what you have developed here..."~” The con-
gressman publically questioned whether there was a "fix" at
the MSPB level in these cases,” and further stated "(t)o have
this kind of Gestapo-like action by a government agency is
something that is outrageous because it is something that |
think I personally experienced as a young boy being
evacuated from the West Coast only because of my ancestry.
It wasn’t an excuse in 1942 and it is no excuse in 1981."~~
Still another member commented, "I agree with those who
suggest that this is a black day in the history of the administra-
tion of justice, and the denial of due process that we went
through here today is something that I find very shocking."*>
The Subcommittee Chairman had this "final observation"
at the end of that public session:
It appears that a web of actions and of statements
had been sos in the Chicago Office, and once the
spinning of the web began, it became nigh impos-
19) Subcommitice on Investigations and Oversight Hearings on
Examining the Circumstances Surrounding the 1981 firings of Air Traffic
Controllers at the Aurora, Illinois, Air Traffic Control Center,” Tr. 3-10-87
ary,
20) Id, at 60.
21) Id, at 64.
22) Id. at 64, 65.
23) Id. at 112
-16-
sible to extract the principals from that process.
And as they proceeded, they more intricately at
each step of the way, involved themselves ir a turn-
ing of the rules and procedures and disregard of the
procedures, as I said earlier, that are fundamental
to American Jurisprudence.”
Petitioners recognize that the statements of members ot!
a separate ranch of government are given no legal weight,
even when they arise from a investigation of the same facts
and events in the record reviewed in the lower court.
However, such statements do reflect the great public impor-
tance attached to the erosion of public confidence in a sys-
tem which has thus far refused to acknowledge what has
occurred here.
y & The Federal Circuit’s Decision Turns Both The
Review Statute And Hornbook Law On Its Head.
The majority panel’s decision in these cases is replete with
error.
For example, the express purpose of the Full Board's
remand order in 1983 was to examine the process by which
the questioned documents were created. The Board stated,
"If the record is to speak for itself, we must make sure it is
accurate.” (App. 120).
Thereafter, at the remand hearing, the agency’s main wit-
ness Mr. Miller, conceded that the documents were so
spoiled with altered entries that "no one with the exception
of God could look at these files and tell whether or not they
are accurate.” (R.H.T. 518-20).
Under these circumstances it was particularly anomalous
for the majority to attribute its affirmance to a credibility
determination. The petitioners entire attack on the proba-
Id. at 18]
~~; =
tive value derived from this and similar admissions of the
agency witnesses. Petitioners did not ask the Board or the
court below to discredit this testimony.
In the context of the Chicago Center cases, where hearsay
documents comprised the entire agency case, a spoilation of
such evidence would occur when the agency witnesses them-
selves were unable to distinguish genuine entries from the
altered ones made by persons having no personal knowledge
of the relevant facts. Again, the agency witnesses admitted
they could not tell the difference. In cases involving spoila-
tion, itis hornbook law that an adverse inference attaches to
the party responsible. See McCormick on Evidence (2d ed)
Section 273 (fabrication or alteration of documents, destruc-
tion or spoilation is an admission by conduct against the party
responsible); and see 2 Wigmore on Evidence. Section 291
(destruction, spoilation and other obstructive conduct
creates adverse inference against party responsible).
In contrast to these well-settled principles, the majority
panel found that the adverse inference should be imposed
on the petitioners, for their failure to come forward with in-
dividual proof of their innocence in order to attack a
presumed accuracy of the agency hearsay. (App. 19, 28). Al-
though the majority reasoned that this result does not shift
the burden of proof, see 5 U.S.C. Section 7701(C)(2)(B), that
is precisely what it does.
As noted in the Statement of the Case, supra the in-
dividuals involved in the secret, evidence tampering project
admitted an awareness that they were creating inculpatory
entries for use in MSPB litigation. This Court has declared
evidence of this type "inherently unreliable". See Palmer v.
Hoffman, 318 U.S. 109 (1944), affirming with approval the
Second Circuit's decision and analysis in Hoffman v. Palmer,
129 F.2d 976 (C.A. 2, 1942) where the court stated:
—~ =
It follows that the phrase "regular course of busi-
ness" never covered a regular practice of making
records with the purpose of supplying evidence in
a highly probable law suit, when those records are
made by persons having every possible temptation
to misstatements.
The majority opinion recognized that the alternation
process resulted in a lack of an identifiable declarant and fur-
ther recognized that the agency’s documents were not "ordi-
nary course business records." (App. 18, 25). However, the
majority dismissed the importance of a distinction between
hearsay and business records, noting that in MSPB proceed-
ings "evidence need not...fall within an exception to the hear-
say rule to be admissible." (App. 25).
However, the evidentiary values underlying business
records and hearsay are sharply different even critical to a
case of this type. The business record derives an inference of
reliability from the independent need for accuracy and truth-
fulness in the conduct of the enterprise. Fed. R. Evid. 803(b).
Ordinary hearsay, on the other hand, rests entirely on the
credibility of the out-of-court-declarant for its probative
value. McCormick on Evidence, (2d ed., Cleary) Section 246.
By definition, therefore, hearsay entries from anonymous
declarants lack any probative value. Consolidated Edison Co.
v. NLRB, 305 U.S. 197, 229-30 (1938).
Clearly the desire to affirm the punishment of those
suspected and charged with participating in an unlawful
strike should not outweigh the need to protect the process
by which guilt and innocence is supposed to be fairly deter-
mined.
As this Court stated long ago in Hazel-Atlas Glass Co. v.
Hartford Empire Co., 323 U.S. 238 (1944), "tampering with
the administration of justice in the manner indisputably
a
shown here involves far more than an injury to (the litigants),
it is a wrong against the institutions set up to protect and
safeguard the public..."
At a minimum three time-honored principles dictate that
no litigant - especially a federal agency - should prevail in a
case based entirely on the product of its own chicanery.
3. It Is Impossible To Demonstrate That The Outcome
Would Have Been Different If The Oral Reply Right Had
Not Been Denied.
As noted above, the MSPB found, and the Federal Circuit
agreed, that the oral reply right provided by statute, 5 U.S.C.
Section 7513(b)(z), was denied these petitioners. However,
the majority found that the petitioners failed to demonstrate
the error was harmful by showing that the result might or
would have been different.
Petitioners respectfully suggest that such a burden is im-
possible to meet.
There is little logical distinction from a case in which a
judge erroneously holds that a defendant waived a jury trial
and thereby forces the accused to proceed with a bench trial.
How does the defendant show the appellate court - even in
the abstract - how the result might have been different?
The very nature of the oral reply right subsumes the no-
tion that a personal confrontation with the person charged
with making or recommending a decision may result in a
frank, give and take discussion of the case which may
culminate in an understanding between the parties that is
never again possible under the statutory review procedures.
Ricucci v. United States, 425 F.2d 1252, (Ct. Cl. 1972). Even
an employee who is otherwise guilty of an offense may plead
mitigation and thereby affect the penalty at such a proceed-
=,"
ing. Washington v. United States, 147 F Aupp. 284 (Ct. Cl.
1957).
How can an attorney, arguing the loss of this right on ap-
peal, establish anything beyond a bare claim that the result
might have changed?
This Court has recognized the constitutional dimension of
this right. Cleveland Board of Education v. Loudermill, 470
U.S. 532 (1985). However, petitioners respectfully suggest
that this right will never be vindicated in federal sector
employment cases unless this Court rejects the abstract im-
ponderables required in the lower court’s analysis.
CONCLUSION
For the foregoing reasons, the petition for a writ of cer-
tiorari should be granted.
Respectfully submitted,
Phillip S. Wood
Pasky AND Woop
220 E. Galena Blvd.
P.O. Box 2729
Aurora, Illinois 60507
Gary Ethan Klein
1625 K Street N.W.
Suite 790
Washington, D.C. 20006
INDEX TO APPENDIX
DESCRIPTION
Decision of the United States Court of Appeals
for the Federal Circuit, dated September 3, 1987 ....
Initial decision at the Merit Systems Protection
Board, dated January 18, 1983 ..................
Decision of the MSPB Full Board, dated
POMOOEN TTI ahi eda aed kaenekaas oeekae
Remand decision of the MSPB, dated
RPS AF. Pe 5 Cine oe eke
Decision of the MSPB Full Board dated
PU CR i viv isawndasdcitcekknee eee
Judgment order of the Federal Circuit Court of
Appeals, dated September 3, 1987 ...............
Order of the Federal Circuit Court of Appeals
denying rehearing, dated October 19, 1987 .......
..12la
—!
APPENDIX
United States Court of Appeals for the Federal Circuit
TERRY L. ANDERSON, ET AL.,
LEIGH ANDERSON, ET AL.,
ALLAN A. BROHOLM, ET AL.,
and RUDOLF C. RADNOFF,
Petitioners,
VS.
DEPARTMENT OF
TRANSPORTATION,
FEDERAL AVIATION
ADMINISTRATION,
Respondent.
—
—
Appeal Nos.
85-1146,
85-1824
85-2814 |
and 85-2821
DECIDED: September 3, 1987
Before BALDWIN, Senior Circuit Judge,’ NIES and
ARCHER, Circuit Judges.
PER CURIAM.
Petitioners appeal from the decisions of tie Merit Systems
Protection Board (MSPB or board) sustaining their
removals by the Federal Aviation Administration (FAA)
from positions as air traffic controllers. We affirm.
1) The Honorable Phillip 8. Baldwin assumed Senior Circuit Judge
status effective November 25, 1986.
BACKGROUND
A. Proceedings before the MSPB.
The petitioners were removed as air traffic controllers
with the FAA for participating in a strike against the United
States,” in violation of 5 U.S.C. § 7311 (1982) and 18 U.S.C.
§ 1918 (1982), and for unauthorized absence (AWOL). All
petitioners, except three, were controllers at the Chicago Air
Route Traffic Control Center (ZAU.)°
Petitioners’ appeals to the MSPB were heard as part of a
large consolidated proceeding.’ The presiding official issued
an initial decision on January 18, 1983 sustaining petitioners’
removals. The presiding official’s decision became the final
decision of the MSPB for the two groups of petitioners which
elected to appeal from that decision to this court in the cases
of Terry L. Anderson, et al.(No. 85-1146) and Leigh Ander-
son, et al. (No. 85-1824). See 5 C.F.R. § 1201.113 (1986). A
third group of petitioners in the consolidated proceeding
filed a petition for review with the full board under the cap-
tion, Behensky, et al. v. Department of Transp., FAA, No.
CH075281F0979 (MSPB February 8, 1984). The board
granted the Behensky petition and vacated the initial
decision on February 8, 1984. The case was remanded to the
presiding official for further findings on the "creation,
reliability and trustworthiness of certain records" relied on
2) For background regarding the nationwide strike of air traffic
controllers in 1981, see Schapansky v. Department of Transp., FAA, 735
F.2d 477 (Fed. Cir.), cert. denied, 469 U.S. 1018 (1984).
3) Petitioners Gorgol and Smith were controllers at Green Bay,
Wisconsin, and petitioner Strong was a controller at Springfield, Illinois.
See No. 85-1146. Gorgol and Smith appeal only on the issue that they were
not given a proper oral reply. It does not appear that any issue has been
argued on behalf of Strong. 7
4) This proceeding involving some 450 petitioners was captioned
Former Air Traffic Controllers v. Department of Transp., FAA, MSPB No.
CH075281F0834.
ee
by the FAA to establish a prima facie case of striking against
the Behensky petitioners. The presiding official on remand,
and, in turn, the board, rendered decisions (MSPB No.
CH075281F0979REM) on December 17, 1984 and July 5,
1985, respectively, adverse to the petitioners.
Petitioners in Allan A. Broholm, et al. (No.85-2814), mem-
bers of the Behensky consolidation, thereafter appealed to
this court, and petitioner Rudolf C. Radnoff (No. 85-2821),
also a member of the Behensky consolidation, filed a
separate appeal to this court. The four cases were heard
together but not consolidated.
B. Facts.
In the proceedings before the MSPB, the petitioners con-
tended that the FAA records lacked reliability and probative
value, resulting in a failure of the FAA to establish a prima
facie case of striking and AWOL against the ZAU
petitioners. For understanding, we set forth the facts and fac-
tual controversy regarding these records in some detail.
1. The Initial MSPB Hearing.
At the initial hearing, the FAA proffered the documen-
tary evidence contained in each petitioner’s adverse action
file to establish that each had unauthorized absences during
the strike, including an unauthorized absence on the dead-
line shift. Petitioners stipulated to the contents but not the
accuracy of these files. These adverse action files were ad-
mitted into evidence by the presiding official.
The parties entered into a stipulation as to the testimony
that would be uniformly given with respect to each petitioner
and his adverse action file by the facility chief at certain loca-
tions, including the ZAU facility chief, Mr. Gunter, as fol-
lows:
—
The time and attendance records truly and ac-
curately reflect the regularly-scheduled shifts
as posted on the watch schedule and any
directed shift as assigned to the appellants by
a supervisor and reflected in the adverse action
file.
The appellants did not report for their first
regularly-scheduled or directed shift as as-
signed after 11 a.m. EDT on August 5, 1981,
nor any shift prior to that beginning with the
7:00 a.m. shift on August 3, 1981, (that) they
were required to report for.
The appellants did not, in his opinion, provide
any substantive information for their failure to
report for the above-referenced shifts.
Mr. (facility chief) reviewed and considered all
written responses received from appellants
prior to making his decision to remove appel-
lants.
Mr. (facility chief) reviewed and considered all
summaries and recommendations concerning
the oral reply prior to making his decision.
All notices of intended removal were mailed
regular and certified mail.
Mr. (facility chief) is not aware of any appel-
lants having contacted the facility prior to their
deadline shift to indicate that they were ready
to work or were confused as to when to report
to work.
In deciding that an appellant participated in a
strike and was AWOL, Mr. (facility chief) con-
sidered that a nationwide strike was in
progress, that the appellants were scheduled to
‘ines
report for work, that they failed to report to
work on or at any time prior to their deadline
shift and that he believed the appellants of-
fered no substantive information for his/her
absence.
Copies of the pertinent parts of three types of documents
were contained in each petitioner’s adverse action file and
were of central importance to the FAA’s proof of strike par-
ticipation and AWOL, namely, (1) watch schedules; (2) per-
sonnel sign-in logs; and (3) time and attendance records
(T&A records). The watch schedules were normally
prepared and posted by the FAA three to four weeks in ad-
vance and showed for each employee his shift assignments
for one-week periods. Personnel sign-in logs were prepared
by a supervisor of a particular shift, usually one day in ad-
vance, by inserting on the form the names, taken from the
watch schedule, of the employees assigned to that shift. In-
cluded on the sign-in log form were columns for the
employee to sign or initial opposite his or her name and to
record his or her time on and off, and a column headed
"hours on leave." In the latter, a notation may indicate hours
of sick, annual or other approved leave. Finally, the T&A
records represent a cumulation of each employee’s atten-
dance, pay and leave status and were derived in part from
the watch schedules and personnel sign-in logs.
At the initial hearing, petitioners introduced, as their Ex-
hibit 16, a complete set of what purported to be the original
ZAU personnel sign-in logs for the first week of the strike
(August 3 through 8, 1981), which had been produced by the
FAA in response to petitioners’ request. This set of sign-in
logs was shown by petitioners to be inconsistent in some 100
instances with the sign-in logs contained in the petitioners’
adverse action files. Petitioners asserted that those dis-
crepancies were the result of "doctoring" by the FAA to sup-
=
port the removal actions it had taken and, as a consequence,
requested that all of the ZAU cases be reversed.
Although not specifically discussed by the presiding offi-
cial, petitioners’ counsel submitted to the presiding official
at the close of argument a color-coded list of the alleged in-
consistencies between the adverse action file copies of the
sign-in logs and Exhibit 16, which petitioners’ counsel ex-
plained as follows:
The blue notations denote those individuals who
had AWOL added to their orders [sic, logs] that did
not appear on the sign-in logs for certain dates. The
red denotes those individuals who had annual
leave on the original sign-in log . . . and cancelled
on their sign-in logs that was [sic] contained in the
adverse action file, and the persons [sic] in green
had his name added to a sign-in log where his name
did not actually appear on that sign-in log on the
original.
Thus, according to the petitioners, the discrepancies in the
sign-in logs consisted of three types of changes, (a) the nota-
tion "AWOL" was inserted in the blank space in the last
column, (b) the "AWOL" notation was substituted for an an-
nual leave or sick leave notation, and (c) a controller’s name
was added to the logs.
The presiding official in the initial decision found the
documentary discrepancies of some significance because the
facility chief, Mr. Gunter, had testified he relied on the sign-
a Jon
in logs, rather than personal knowledge, to determine
whether a particular petitioner appeared for duty for
scheduled shifts during the strike. Further, according to the
presiding official, Mr. Gunter was unable to explain the dis-
crepancies other than to make a vague statement that the file
copy logs were "updated." . However, in the absence of any
evidence showing that the logs were "doctored" for a specific
purpose, the presiding official rejected petitioners’ argu-
ment that the logs were altered by the agency in an improper
attempt to influence the outcome of the proceedings and
found that the logs could not be totally disregarded as proba-
tive evidence. The presiding official noted that his "failure to
exclude the agency-submitted sign-in logs did not prejudice
the ZAU appellants in the presentation of their cases since
these appellants could have (and many, in fact, did) dispute
[sic] the fact of their alleged absences from their regularly-
scheduled tours of duty or otherwise explained the reason(s)
for their absences in their hearing before the Board." The
presiding official then concluded that, because the adverse
action file copies of the logs could not be summarily dis-
regarded, Mr. Gunter’s live and stipulated testimony con-
cerning the non-appearance of the ZAU petitioners at their
deadline shifts established a prima facie case of strike par-
ticipation as to all of the petitioners involved in that proceed-
ing. Each individual’s rebuttal and affirmative defenses
raised at the initial hearing were then considered by the
presiding official.
5) The FAA sought to have another FAA official, Mr. Miller, testify
concerning the apparent changes in the logs. All FAA witnesses were
ordered sequestered during the hearing, and petitioners’ counsel
objected to Mr. Miller’s testimony because he had acted as technical
advisor to the FAA counsel during the hearing and had not been
sequestered. The presiding official sustained this objection as well as
petitioners’ objection to the FAA’s motion to permit the record to remain
open for further testimony concerning the changes in the documents.
= $2 —
2. The Board Decision
As previously noted, a group of petitioners (including
those here in the Broholm and Radnoff appeals) appealed
the initial decision to the full board. The board remanded
the case to the presiding official because petitioners "have
demonstrated that the agency did not in every case create the
records in question in the usual course of business, but under
unusual circumstances and with some inaccuracy.” In doing
so, the board held that the presiding official did not err in ad-
mitting the FAA’s attendance and pay records into evidence,
Stating:
Despite the fact that the records are in some in-
stances incomplete, inconsistent, and contain
alterations and succeeding entries, the [FAA]
established through the testimony of facility chief
Gunter that they were regularly created in conjunc-
tion with the operation of ZAU and they were
relied upon in managing its work force.
The question, according to the board, was what probative
value to ascribe to the admitted documents. This, it said,
depended on their reliability which could be found by ex-
amining the circumstances of the documents’ creation to see
if there was an inherent probability of trustworthiness. In
remanding, the board noted that in Borninkhof v. Depart-
ment of Justice, 5 MSPB 150, 156-57 (1981), it had listed eight
factors to be considered in assessing the reliability of written
hearsay. Finally, the board stated:
A majority of the ZAU appeals, however, may con-
tain records consistent enough to conclude that
more likely than not an individual was striking and
AWOL on at least one of the days charged. See
Schapansky, supra. Consequently, this case is
remanded to the presiding official for further ad-
judication consistent with this Opinion and Order.
On remand, the presiding official may wish to con-
a= Qe a
sider the need for eyewitness testimony explaining
the process by which the records were created. If
the written record is to speak for itself we must be
sure that it is accurate.
3. Remand Hearing and Decisions.
At the remand hearing, the FAA presented the testimony
of the Facility Evaluations Officer at ZAU, Mr. Miller,”
together with the testimony of several area supervisors
regarding the preparation and use of the pertinent docu-
ments — watch schedules, sign-in logs and T&A reports. Mr.
Miller was in charge of the so-called "war room," which was
set up during the second week of the strike to deal with ad-
ministrative paperwork associated with removal actions, oral
replies, and the initial hearing. Also testifying were in-
dividuals who had been involved in "war room" activities and
Mr. Shewfelt, Manager of the Labor Relations Branch for
the FAA’s Great Lakes Region, who had certified the ad-
verse action files to the MSPB.
Petitioners’ counsel cross-examined the FAA’s witnesses
and introduced certain documents seeking to discredit the
FAA's records and its witnesses. In the course of the cross-
examination of Mr. Miller, the FAA attorney, in order to
avoid prolonging the questioning related to the FAA docu-
ments, introduced of record the following stipulation:
Paragraph 1. Incertain instances the FAA made
amendments to 304’s (sign-in logs) in Agency’s Ex-
hibit 1 for certain controllers after their oral reply.
Paragraph 2. Among these amendments to the
304’s was the addition of some printed names of
controllers in this proceeding to their 304’s, which
the agency asserts was done to make the 304 con-
sistent with the watch schedule.
6) See supra note 4.
— 10a—
Paragraph 3. These changes could have occurred
as late as November, 1981.
Paragraph 4. These amended 304’s were then
copied and substituted for those in the files, which
(files) eventually were transmitted to the Board as
the appellants’ adverse action files.
Paragraph 5. The agency does not stipulate that
these amendments were material or relevant to the
controllers’ removals.
In his remand decision of December 17, 1984, the presid-
ing official, although noting that there were numerous dif-
ferences between the original watch schedules and the
copies of the watch schedules contained in the adverse ac-
tion files, found that "no changes were made to any
appellant’s scheduled shifts during the applicable period."
Based on the testimony of Mr. Miller and other supervisors
as to the procedures for posting and amending watch
schedules and the consistency of the documents as they per-
tained to petitioners, the presiding official found that the
watch schedules were reliable and, in the absence of any
specific challenge, accurately reflected the petitioners’ shift
assignments during the period in question.
As to the sign-in logs, the presiding official again noted
that there were differences pointed our during the hearing
but found that changes existed with respect to the logs of only
three individuals involved in the remand proceeding. The
presiding official also stated that the area supervisors
verified the authenticity of the applicable logs for the vast
7) These individuals, Nelson, Lockhart and Schultz, were found by the
presiding official not to be prejudiced by the addition of their names to
the sign-in logs because there was testimony that the omissions were
inadvertent, such an inadvertent error was not an uncommon occurrence,
and none of the three individuals alleged that he appeared on the dates
in question.
—lla—
majority of the petitioners in the remand proceeding. Based
in that testimony and his personal examination of all of the
logs for the applicable period, the presiding official found an
"inherent probability of trustworthiness."
With respect to the T&A records, the presiding official
said the record reflects that amended reports were prepared
during and for months after the strike, that the vast majority
of the amendments dealt with pay periods subsequent to the
employee’s deadline shift and were therefore irrelevant, and
that, in light of the findings regarding the watch schedules
and sign-in logs, the T&A appropriately reflected each
petitioner’s status during the applicable period.
Finally, the presiding official made the following findings
in reaching the conclusion that petitioners were absent
without authorization during the strike and that each failed
to report for his or her deadline shift:
I am not persuaded by a, arguments con-
cerning the credibility of Messrs. Miller and Shew-
felt, and the alleged forgery, fraud and
misrepresentations on the part of the agency. I find
no persuasive evidence that any agency official per-
jured himself, attempted to "make" or "rig" a case
against an appellant, or otherwise committed any
act which might be considered fraudulent. In some
measure, the agency’s records were not created in
the ordinary course of business. However, during
the summer and fall of 1981, agency "business" was
far from "ordinary". Given the totality of cir-
cumstances, and in light of my findings above, I find
that the agency’s documentary evidence is, in fact,
reliable.
Finding that the FAA had established a prima facie case
and that none of the petitioners presented persuasive
evidence in rebuttal, the presiding official upheld the char-
ges of strike participation and AWOL as to all of the
-] 2a <a
petitioners in the remand proceeding and sustained their
removals.
In denying petitions for review of the remand decision on
July 5, 1985, the board determined that the presiding official
did not err or abuse his discretion in permitting Mr. Miller
to testify at the remand hearing, even though he had not been
sequestered or allowed to testify at the initial hearing. The
board responded to the petitioners’ contention that the
agency had destroyed certain original records by stating that
the presiding official evaluated documents,
weighed their probative value, and determined
that any subsequent changes on the watch
schedules contained in the adverse action files
were made while working controllers were han-
dling the increased workload occasioned by the
strike. The presiding official found the documents
reliable and an accurate reflection of appellants’
shift assignments during the period in issue. Bor-
ninkhof vy. Department of Justice, 5 MSPB 150
(1981). In any event, a close examination of these
documents reveals that no changes were made to
any appellant’s scheduled shifts during the ap-
errs period of August 3, 1981 through August
5, 1981. The Board finds no error in the presiding
ofticial’s evaluation of the reliability of these docu-
ments. [Footnote omitted. ]
OPINION
I.
This court’s standard for reviewing decisions of the MSPB
is defined and limited by statute. The decisions appealed
herein must be affirmed unless they are
(1) arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law;
—1l3a—
(2) obtained without procedures required by law,
rule, or regulation having been followed; or
(3) unsupported by substantial evidence.
5 U.S.C. § 7703(c) (1982). Substantial evidence is "such
relevant evidence as a reasonable mind might accept as ade-
quate to support a conclusion." Consolidated Edison Co. v.
National Labor Relations Bd., 305 U.S. 197, 229 (1938). In
Brewer v. United States Postal Service., 647 F.2d 1093, 1096
(Ct. Cl. 1981), our predecessor court said that "[i]n determin-
ing whether the Board’s decision is supported by substantial
evidence, the standard is not what the court would believe
ona de novo appraisal, but whether the administrative deter-
mination is supported by substantial evidence on the record
as a whole."
The FAA had the burden of proving strike participation
and AWOL by petitioners by a preponderance of the
evidence. 5 U.S.C. § 7701(c)(1)(B). A preponderance of the
evidence is defined by the MSPB regulations as:
[T]hat degree of relevant evidence which a
reasonable mind, considering the record as a
whole, might accept as sufficient to support a con-
clusion that the matter asserted is more likely to be
true than not true.
5 C.F.R. § 1201.56(c)(2).
The charge of striking is proven when it is shown that the
employee withheld his services in concert with others.
Schapansky, 735 F.2d at 482. In Schapansky, this court held
that "[p]roof of a wide-spread strike of general knowledge,
together with proof of... absence without authorization or
explanation during the strike," constitutes a prima facie case
of strike participation. Id. at 482. An unrebutted prima facie
case, Moreover, amounts to proof by a preponderance of the
—l4a—
evidence. See Hale v. Department of Transp., FAA, 772 F.2d
882, 886 (Fed. Cir. 1985). The charges of absence without
leave are supported by the same evidence found to support
the charges of striking. See Schapansky, 735 F.2d at 484.
In these appeals it is undisputed, and the presiding official
found, that adequate proof of the strike of general
knowledge was presented. The petitioners contend,
however, that the second part of the Schapansky test — ab-
sence without authorization or explanation — was not
proven. They point to the fact that the documents relied on
by the FAA to show the absence of petitioners were altered
or added to after their creation. Arguing that these altera-
tions were not adequately explained by the FAA’s witnesses,
petitioners assert that the documents are untrustworthy
hearsay and inadequate to establish a prima facie case of ab-
sence without authorization.
It has long been settled that hearsay evidence may be used
in administrative proceedings and may be treated as substan-
tial evidence even without corroboration if, to a reasonable
mind, the circumstances are such as to lend it credence.
Hayes v. Department of the Navy, 727 F.2d 1535, 1538 (Fed.
Cir. 1984) (and cases cited therein). In this regard, the very
purpose of the remand by the board, and the remand hear-
ing before the presiding official, was to-assure the board that
the FAA’s documentary evidence was reliable and trustwor-
thy with respect to individual petitioners.
Because of the different procedural histories between the
Broholm (No. 85-2814) and Radnoff (No. 85-2821) appeals
and the two Anderson appeals (Nos. 85-1146 and 85-1824),
we are faced with different records in the two groups of cases.
We therefore will discuss each group separately, first con-
sidering the Broholm and Radnoff appeals.
—1Sa—
The petitioners’ attack on the documents and the under-
lying record-generating process is based on general allega-
tions of evidence tampering and false testimony by FAA
officials. There is no question that changes and additions
were made to some of the FAA documents. This was brought
out by the petitioners during questioning of the FAA wit-
nesses and by pointing to the documentary inconsistencies.
In addition, a stipulated admission to that effect was made
by the FAA’s counsel. Nevertheless, petitioners’ generalized
charges of tampering and false testimony are totally inade-
quate to counteract the specific findings made by the presid-
ing official on remand and approved by the full board.
The presiding official on remand concluded again that
there was no evidence of fraud, forgery, or misrepresenta-
tion on the part of the agency, nor any persuasive evidence
that any agency official perjured himself, attempted to make
or rig a case against any appellant, or otherwise committed
any act which might be considered fraudulent. In an attempt
to attack these findings, the petitioners have detailed a num-
ber of instances in which they contend the testimony of agen-
cy witnesses is inconsistent or conflicting. However, the
presiding official credited the testimony of Messrs. Miller
and Shewfelt, was unpersuaded by the arguments of agency
forgery and fraud, and relied on the testimony of the area su-
pervisors as verifying the authenticity of the logs. That some
parts of a witness’ testimony may be attacked is a common
phenomenon, but it supplies no basis for hoiding that the
fact-finder is not entitled to credit other parts of that witness’
testimony. DeSarno v. Department of Commerce, 761 F.2d
657, 661 (Fed. Cir. 1985). We have examined carefully the
discrepancies noted by petitioners and are unable to con-
clude that we should second guess the credibility determina-
tions of the presiding official, based as they are on the
demeanor of the witnesses during direct and cross-examina-
— l6a—
tion. See Griessenauer v. Department of Energy, 754 F.2d 361,
364 (Fed. Cir. 1985). See also Hambsch v. Department of the
Treasury, 796 F.2d 430, 436 (Fed. Cir. 1986) (credibility
determinations are "virtually unreviewable").
The testimony of the FAA officials, being credible,
provides substantial evidence to support the board’s findings
that there was no attempt on the part of the FAA to make or
rig a case against any petitioner or otherwise commit a
fraudulent act. Thus, the FAA’s documentary evidence can-
not be summarily rejected as unreliable and non-probative,
as petitioners contend, based on general allegations of
tampering.
Because of their reliance on a broadside attack against the
FAA’s case, petitioners have also failed to address or counter
in any way the crucial findings of the presiding official on the
accuracy and the reliability of the documents as they relate
to the individual petitioners involved in the remand proceed-
ing. The presiding official found that no changes were made
to any petitioner’s scheduled shifts and that the watch
schedules were reliable and accurately reflected the
petitioners’ shift assignments. These findings were made by
the presiding official after hearing the testimony of the FAA
officials, including their cross-examination, and after review-
ing the documents for consistency.
Petitioners’ response to these findings is that the watch
schedules had alterations and that the FAA was unable to
produce ancillary documents, such as the "swap book" in
which controllers’ agreements to swap shifts are usually
recorded, because they were no longer available at the time
of the hearing. As a result, the accuracy of all the shift assign-
ments could not be verified. Petitioners, however, made no
specific allegations of changes in shift assignments for any of
the petitioners in the remand proceeding and the presiding
—l/a—
official’s finding that there were no such changes remains un-
challenged. If there were in fact errors in the shift assign-
ments as to those petitioners, they could have identified
them to the FAA or in the MSPB proceedings. In the ab-
sence of any showing of a specific mistake for any individual
petitioner, the presiding official’s finding of accuracy in the
watch schedule shift assignments must stand.
The second important finding relates to the sign-in logs
where, despite the many differences claimed by petitioners
to exist between the original logs and the copies contained
in the adverse action files, the presiding official determined
that a change was made only for three of the petitioners in
the remand proceedings. In the three cases, the difference
was that the employee’s name had been added to a sign-in
log because it had been inadvertently omitted for a shift to
which the employee was assigned per the watch schedule.
The presiding official determined that these individuals had
not been prejudiced by the addition of their names to the
logs. Significantly, no allegation of prejudice has been made
on appeal on behalf of these individuals, nor is there any in-.
dication that they were either not assigned to that particular
shifts or were in fact present at such shifts.
Again, there is no specific challenge on behalf of any in-
dividual petitioner in this appeal to the presiding official’s
determination. The petitioners were content to rely solely
upon their general allegations that the discrepancies in the
logs, even though the discrepancies did not implicate
petitioners in this appeal other than the three whose names
were added to the logs, made the logs, in toto, untrustwor-
thy hearsay. After noting that the witnesses testified that no
signatures were erased from any sign-in logs, that none of the
petitioners had alleged that he or she did in fact appear on
the dates in question, and that supervisors verified the
authenticity of the applicable logs for the vast majority of the
— l8a—
petitioners, the presiding official found, after examining all
of the logs for the applicable period, an "inherent probability
of trustworthiness.” Accordingly, it must be concluded that
to the extent there were changes in, or additions to, the logs,
the petitioners were unaffected by the changes, and that for
purposes of these appeals the logs are probative evidence of
the petitioners’ absences for their assigned shifts.
The petitioners in the Broholm appeal have also set out
specific arguments for claiming that the documentary
evidence was insufficient to establish a prima facie case of
absence without authorization. We find all of them without
merit and substantially covered above except as discussed
below.
Petitioners contend that the documentary evidence sub-
mitted to the MSPB was not the same as that relied upon by
the FAA as the basis for removing petitioners. However, the
two critical features of the documents — petitioners’ shift as-
signments and absence of petitioners’ signatures — were
found by the presiding official to be unchanged, except for
the three names added to the logs to correct inadvertent er-
rors. We must conclude that there is not a sound basis for
petitioners’ assertion. Further, petitioners have not shown
that the irregularities in the documents otherwise com-
plained of having resulted in harmful error. See Adams v.
Department of Transp., FAA, 735 F.2d 488, 490 n.3 (Fed. Cir.
1984) and concurring opinion of Judge Nies, 735 F.2d at 495.
Petitioners also argue that, although hearsay is admissible
in MSPB proceedings, the documents here lack an identifi-
able declarant and "do not even qualify as hearsay.”
Petitioners’ assertion that the documents are akin to "mere
rumor" is contrary to the specific findings of the MSPB and
the testimony clearly indicating that they were created in
conjunction with the operations of the Chicago facility and
—19a—
relied on in managing that work force. In this regard, the
presiding official stated that while in some measure the
agency records were not created in the ordinary course of
business during the summer and fall of 1981, the agency
"business" was far from "ordinary." We cannot say that the
presiding official erred in concluding that, given the totality
of the circumstances, the agency’s documentary evidence
was, in fact, reliable.
Petitioners assert that the AWOL entries, which were, for
the most part, entered on the sign-in logs at a later date, were
relied on by the FAA as its evidence of absence without
authorization. There is no indication, however, that weight
was given to the AWOL notation. Moreover, the presiding
official in the remand opinion concluded, albeit in the con-
text of the three added names to the logs, that the significant
or probative feature of the logs was the presence or absence
of the employee’s signature. Since no petitioner has con-
tended that he was not absent or was not scheduled for duty
for any of the shifts at issue in this appeal, no prejudicial ef-
fect on any petitioner has been shown by the AWOL nota-
tion even it entered for any petitioner in these appeals. As
already noted, the presiding official found no changes in the
logs relating to the petitioners here, except for the three
whose names were added to the logs.
The board’s conclusion and determination that the FAA
established a prima facie case of strike participation with
respect to each petitioner is also supported by the adverse
inference that may be drawn from the failure of any of the
petitioners to come forward, either at the board hearings or
at the agency hearing, to affirm that they were not absent or
that their scheduled shifts were incorrectly recorded by the
agency. As stated in Adams, 735 F.2d at 492,
[p]etitioners declined twice, however, to explain
their absences, once during the agency removal
—20a—
proceedings and again during the Board hearing.
The first failure to deny the charges left those ab-
sences unauthorized and unexplained, thereby ad-
ding to the sufficiency of the agency’s prima facie
case. It is the Board’s decision we review, and the
petitioners’ silence before the Board, after the
agency had established a prima facie case, fully
warranted the Board’s drawing of an adverse in-
ference. "Silence is often evidence of the most per-
Suasive character."
These are appeals of cases where, as in Hale, 772 F.2d at
885-86, "[p]etitioners deliberately chose to present no rebut-
tal evidence, apparently concluding that a prima facie case
had not been established and that they could prevail by that
stratagem. ... An unrebutted prima facie case is necessari-
ly, by definition, a ‘preponderance’ of the evidence. See
Schapansky, supra, 735 F.2d at 483."
Il.
The remaining issues in Broholm (No.. 85-2814) and Rad-
noff (No. 85-2821) may be disposed of without extended dis-
cussion.
(1) Petitioners contend that the presiding official erred
in not imposing sanctions, pursuant to 5 C.F.R. § 1201.43, on
the respondent. Since we have concluded that the presiding
official correctly determined that the FAA established a
prima facie case of striking and AWOL, in part, upon the
basis that the agency records were reliable and that no act
was committed by an agency official which might be con-
sidered fraudulent, we affirm that the board acted properly
in denying sanctions.
(2) In Broholm, petitioners have raised procedural 1s-
sues regarding the pretermination hearings, citing the
Supreme Court’s decision in Cleveland Bd. of Education v.
Loudermill, 105 S. Ct. 1487 (1985). These contentions have
—2la—
been effectively disposed of by this court’s decisions in De-
Sarno, 761 F.2d at 660 (Loudermill does not enlarge upon
the procedural rights due federal employees under the Civil
Service Reform Act) and Handy v. United States Postal Serv.,
754 F.2d 335, 337 (Fed. Cir. 1985) (it is petitioners’ burden
to prove harmful procedural error in the oral reply process).
Petitioners have failed in show that absence of the alleged
procedural error might have produced a different result. See
Shaw v. United States Postal Serv., 697 F.2d 1078, 1080-81
(Fed. Cir. 1983); Adams, 735 F.2d at 490 n.3, 495.
(3) The issue raised in the Radnoff appeal that petitioner
was denied Presidential amnesty by being charged with
strike participation prior to his deadline shift has been fully
considered and decided in Anderson v. Department of
Transp., FAA, 735 F.2d 537, 540 (Fed. Cir. 1984); Dorrance
v. Department of Transp., FAA, 735 F.2d 516, 520 (Fed. Cir.
1984); Adams, 735 F.2d at 490-91.
With respect to the two Anderson appeals (Nos. 85-1146
and 85-1824), these petitioners did not seek full board
review of the initial presiding official’s decision, and it is that
decision which is challenged here. These petitioners seek
reversal on the ground that the presiding official erred in the
holding that the documentary evidence on which Facility
Chief Gunter based his removal decisions was probative.
Further, they maintain that a remand (as ordered by the
board in Behensky) is inappropriate for the reason that the
agency should not be given a second chance to prove its case.
We need not address the latter issue since we conclude that
the presiding official properly could credit Mr. Gunier’s live
and stipulated testimony, including his testimony based on
the documents contained in each petitioner’s adverse action
file.
—22a—
The presiding official ruled that Mr. Gunter’s stipulated
testimony 5 constituted unrebutted evidence that each
petitioner failed to report for his/her first regularly-
scheduled shift following 11:00 a.m. EDT on August 5, 1981,
and, therefore, found that each had withheld his/her services
from the agency during the strike. Mr. Gunter further tes-
tified that the records were regularly created in conjunction
with the operation of ZAU, and they were relied upon in
managing its work force.
Because Mr. Gunter relied on the sign-in logs, rather than
personal knowledge, to determine whether an employee ap-
peared for his or her scheduled shift during the strike, the
presiding official expressly stated that he gave careful con-
sideration to petitioners’ contentions concerning the validity
of these documents. Mr. Gunter was unable to explain the
discrepancies between copies purportedly of the same sign-
in log except to say that some were "updated." However, be-
cause there was not evidence showing that the logs were
“doctored” or altered by the FAA in an improper attempt to
influence the outcome of the hearing, as asserted by
petitioners, the presiding official stated that he could not dis-
regard them totally as probative evidence. On that basis he
concluded that his determination that the FAA’s prima facie
case was established by Mr. Gunter’s live and stipulated tes-
timony should not be disturbed.
The issue before us is whether there is substantial
evidence in the record to support the presiding official's
determination that the agency made a prima facie case of
strike participation for each petitioner. See 5 U.S.C. §
7703(c). Petitioners argue that the documentary evidence
should be held inadmissible. which would leave the record
devoid of evidence to support the charges. Even if admis-
8) The stipulated testimony appears at pp. 4-5, supra.
—23a—
sible, petitioners assert that the evidence is insufficient to es-
tablish a prima facie case of strike participation and AWOL
charges against any ZAU controller.
Throughout their briefs, petitioners argue that the govern-
ment altered its records to "fabricate" evidence against
petitioners and that its actions constitute a "fraud on the
court." The presiding official found no evidence "that the
agency ‘doctored’ these amended logs in order to support
the removal actions it had taken." Petitioners, nevertheless,
label the sign-in logs in all files as "false," "manufactured
evidence.” "secretly insert{ed] amendments,” and the like,
and at the same time urge that the presiding official’s ruling
on "motive" is immaterial. More specifically, the principal ar-
gument appears to be that a change from "approved leave"
to "AWOL" on the sign-in logs could somehow be evidence
of AWOL which influenced the presiding official’s decision
to uphold the charge.
Nothing in the presiding official’s analysis lends support
to that argument. The government argues that a notation of
AWOL added to the sign-in logs reflects no more than the
agency’s view of the matter. We agree. The presiding official
clearly recognized that being AWOL was an issue, and he
ruled on each of the charges de novo, overturning a number
of the agency’s removal decisions. Indeed, with respect to the
one example singled out by petitioners to iiustrate their
position that evidence was "manufactured," namely, the
removal of L. Rodney Peterson, the presiding official set
aside Peterson’s removal despite the agency’s records which
indicated that he was AWOL. Accordingly, because there is
no evidence of evidence tampering — not even a suggestion
that a signature was expunged from a sign-in log to manufac-
ture a case against someone — we affirm the presiding
official’s finding that the records were not "doctored" to
manufacture evidence for the MSPB proceedings.
—24a—
The petitioners argue that the large number of unex-
plained discrepancies and the absence of any original unal-
tered record render any sign-in log in a petitioner’s file
inadmissible. Alternatively, if technically admissible, the
records are, per petitioners, too "unreliable" to constitute
substantial evidence of the charges against them.
In support of their view that the documentary evidence is
totally unreliable, petitioners rely on the decision of the full
board in Behensky, previously discussed, from which they
extract the board’s statement that there were "numerous
alterations and inconsistencies in the agency’s documenta-
tion.” Behensky, slip op. at 4. In view thereof, petitioners
assert that the records should have been excluded.
The Behensky decision does not support petitioners’ argu-
ment here that the records were improperly received in
evidence. On the contrary, in Behensky the board specifical-
ly held:
We conclude that the presiding official did not err
in admitting the agency’s attendance and pay
records into evidence. Despite the fact that the
records are in some instances incomplete, incon-
sistent, and contain alterations and succeeding
entries, the agency established through the tes-
timony of facility chief Gunter that they were
regularly created in conjunction with the operation
of ZAU and they were relied upon in managing its
work force. [Emphasis added. ]
Id. at S.
From our review of the record, we also reach the con-
clusion that the records were properly admitted. The docu-
ments are of the type which have routinely been accepted
and used to establish a prima facie case of strike participa-
tion. See Dorrance v. Department of Transp., FAA, 735 F.2d
516, 519 (Fed. Cir. 1984); Hale, 772 F.2d at 886. While
—25a—
petitioners argue that in their appeals the records may not
be treated as "business records" prepared in the ordinary
course of business because of the subsequent changes,
evidence need not, in MSPB proceedings, fall within an ex-
ception to the hearsay rule to be admissible. See Dorrance,
35 F.2d at 519; Hayes, 727 F.2d at 1538. Rather, the board
and this court are concerned with the reliability of the hear-
say to establish the charges against an employee.
The board noted in Behensky that the records were created
with "some inaccuracy." Behensky, slip op. at 6. The
demonstrated inaccuracy, however, did not lead the board
to conclude that the records were so wholly unreliable that
they could not serve as evidence against anyone. Nor did the
board hold that additional testimony was necessary to estab-
lish their reliability. On the contrary, the board stated, "A
majority of the ZAU appeals, however, may contain records
consistent enough to conclude that more likely than not an
individual was striking and AWOL on at least one of the days
charged." Id. at 6-7.
That the board in Behensky chose to have the presiding of-
ficial re-review the records for consistency as to individual
petitioners and suggested that the presiding official on
remand might take additional testimony was a matter within
its discretion, The presiding official is part of the board, and
the board is not required to review the presiding official’s
decision limited by a standard of review comparable to that
imposed on this court. Our role is severely circumscribed in
reviewing a presiding official’s decision as compared to that
of the board.
With regard to the specific inconsistencies raised by
petitioners, the predicate for their argument of unreliability
is the addition of names to the watch schedules and the sign-
in logs, as well as the changes in annual leave designations
—26a—
to AWOL. These changes, per petitioners, totally destroy the
probative value of the documents in every ZAU adverse ac-
tion file on which Mr. Gunter based his removal decision.
We disagree.
Petitioners improperly ask us to resolve the ZAU cases as
a group rather than individually. While their challenges to
the removal actions were consolidated for convenience of
trial, each controller has a separate claim for wrongful
removal. Not one of the petitioners in the instant cases has
asserted that information contained in his or her adverse ac-
tion file was wrong either with respect to a shift assignment
or his or her absence from a scheduled shift. No petitioner
here has asserted, for instance, that his or her name was im-
properly added to a sign-in log or that he or she did not
receive notice of being scheduled for duty during the period
in question. Similarly, no petitioner asserts that the sign-in
logs did not accurately reflect his or her non-appearance
during a scheduled shift, i.e., that his or her signature was
somehow expunged or that he or she inadvertently neglected
to sign in.
Contrary to petitioners’ argument, it was not necessary
that the presiding official make a specific finding as to the
accuracy and reliability of the documentary evidence as it re-
lated to each individual petitioner in the absence of some
proof of error as to that individual. If the FAA had er-
roneously "updated" an individual petitioner’s T&A record,
that person had the burden of bringing such error to the at-
tention of FAA during its removal proceedings or at least to
the attention of the presiding official at the board hearings.
Also contrary to petitioners’ argument, the issue
presented here was not decided differently by the board in
Gerbitz v. Department of Transp., FAA, No. CH0O75281F 1637
(MSPB September 30, 1983). According to petitioners the
—2/a—
sole difference between Gerbitz and the cases presented for
review here are the number of petitioners involved. That is
unequivocally wrong.
In Gerbitz, the sole petitioner did not remain silent in the
face of strike charges, as did petitioners here. The dispute in
Gerbitz was over the amount of leave Gerbitz had been
granted; seven days or seven hours, and whether his leave
had been cancelled. Gerbitz testified at his board hearing
that "he received approval of his request for seven days of
annual leave on July 31, 1981 covering the period August 3rd
through August 9th, 1981." Id., slip op. at 1. While his super-
visor, Salinas, testified he granted Gerbitz only seven hours
of annual leave, a contemporaneous memo prepared by
Salinas supported Gerbitz’s claim. There was also conflict-
ing testimony over whether Gerbitz’s leave had been can-
celled. In view of the entire record, the board held that the
probative value of the records which showed Gerbitz
scheduled but absent was greatly reduced. In reversing
Gerbitz’s removal, the board ruled:
As we held in Borninkhof v. Department of Justice,
5 MSPB 150, 157 (1981), hearsay evidence, al-
though sufficient to meet a substantial evidence
standard, may not be sufficiently probative in light
of contradictory live testimony to sustain the agen-
cy burden of proof by a preponderance.
Id., slip op. at 4 (emphasis added). Petitioners here can draw
no support from the ruling in Gerbitz. No peiitioner here
contradicted the hearsay evidence with his or her own con-
tradictory live testimony challenging his or her record. Fur-
ther, as we noted in the Broholm and Radnoff appeals, an
adverse inference may be drawn from petitioners’ conscious
decision to remain silent at both the agency and board level
rather than to affirmatively assert the incorrectness of their
—28a—
scheduled shifts or their presence on duty. See Adams, 735
F.2d at 492.
Petitioners argue that requiring them to come forward
with evidence of specific error improperly shifts the burden
of proof with respect to hearsay evidence and that it was in-
cumbent on the government to establish the "accuracy" of its
records in order to establish a prima facie case against any
petitioners. Again, we must disagree. If the government were
required to prove the accuracy of every entry in order to use
any part of the record as evidence, the hearsay evidence it-
self would be merely cumulative and unnecessary. In any
event, the accuracy of an entry on the records for a particular
individual, while critical to his case, is irrelevant or harmless
error as to another if the records correctly show the latter’s
absence during a scheduled shift. Since the changes relate to
individuals, not the group as a whole — indeed, no change
at ail appears in the records of the majority of controllers —
a requirement that individuals put forth some proof of error
in their individual records is reasonable under the cir-
cumstances. A requirement for coming forward with
evidence does not shift the overall burden of proof. See
Schapansky, 735 F.2d at 482.
From-our review of the record, we conclude that the
presiding official’s finding that the agency established a
prima facie case of strike participation against each of the
Anderson petitioners is supported by substantial evidence.
Having been given ample opportunity before the presiding
official to establish that the records indicating, prima facie,
a petitioner’s unauthorized absence during a strike was in-
accurate, none offered a personal challenge. With no
countering evidence, the agency’s proof of a prima facie case
of strike participation under Schapansky amounted to a
preponderance of the evidence. See Hale, 772 F.2d at 886;
Schapansky, 735 F.2d at 483.
—29a—
V.
In both Anderson appeals, procedural issues regarding
pretermination hearings have been raised, as they were in
Broholm. Our discussion and application of this court’s
decisions supra at 22-23 is equally applicable here.
CONCLUSION
The decisions of the board in Nos. 85-1146, 85-1824, 85-
2814, and 85-2821 are affirmed.
AFFIRMED
— 30a—
Lnited States Court of Appeals for the Federal Circuit
—
TERRY L. ANDERSON, ET AL.,
LEIGH ANDERSON, ET AL.,
ALLAN A. BROHOLM, ET AL.,
and RUDOLF C. RADNOFF,
Appeal Nos.
Petitioners, 85-1146,
V. T— 85-1824
DEPARTMENT OF 85-2814
TRANSPORTATION and 85-2821
FEDERAL AVIATION
ADMINISTRATION,
Respondent. _|
BALDWIN, Senior Circuit Judge, dissenting.
I must dissent from the majority’s affirmance of the
board’s determination that the FAA has carried its burden
of demonstrating a prima facie case of strike participation
and AWOL by a preponderance of the evidence. 5 U.S.C. §
7701(c)(1)(B); 5 C.F.R. § 1201.56(a)(1)(ii). The issue is
whether there is substantial evidence in the record to sup-
port the board’s decision that the agency made a prima facie
case of strike participation for each petitioner. 5 U.S.C. §
7703. To establish the charge of strike participation, the FAA
came forward with proof of a strike of general knowledge
coupled with documents purporting to establish absence
—3la—
without authorization by each of the petitioners. ? Much of
that documentation was incomplete, inconsistent, and/or al-
tered after-the-fact. Those records having not been prepared
in the ordinary cause of business, the board should have con-
cluded that those records could not serve as evidence against
anyone.
This unreliable documentation created a record that is so
flawed, in the first instance, as to undermine its probative
value, and prevent the establishment of a prima facie case.
Such records are hearsay which could be acceptable in ad-
ministrative hearings to provide a substantial evidence basis
for agency charges if, to a reasonable mind, the circumstan-
ces are such to lend it credence. Hayes v. Department of the
Navy, 727 F.2d 1535, 1538 (Fed. Cir. 1984). The alterations
and inconsistencies in the documents, however, are cir-
cumstances which destroy the acceptability of the entire
record.
Although the majority recognizes discrepancies in the
record, primary weight is accorded to the determination by
the board that there was no attempt by the FAA to commit
a fraudulent act, a forgery, a misrepresentation, or to com-
mit perjury. I take no issue with the board’s "virtually un-
reviewable" credibility determination regarding the lack of
any improper intent on the part of the FAA. In focusing on
the motives of the FAA, however, the board has missed the
keyussue of the reliability of the record upon which the FAA
case is based.
9) Charges of absence without leave are supported by the same
evidence that would support charges of strike participation. See
Schapansky v. Department of Transp., FAA, 735 F.2d 477, 484 (Fed. Cir.
1984). Unrebutted evidence showing that an employee withheld his
service in concert with others would amount to proof by a preponderance
of the evidence. Hale v. Department of Transp., FAA, 772 F. 2d 882, 885
(Fed. Cir. 1985).
—32a—
Although deference is to be accorded to an administrative
determination, we, the reviewing court, retain a respon-
sibility to scrutinize the entire record and to reverse or
remand a decision which is not supported by substantial
evidence. The circumstances surrounding creation of the
FAA’s documentation has undermined the probative value
of the evidence against petitioners. The FAA has failed to
provide reliable documentation as a substantial evidence
basis for a prima facie case of absence without authorization.
—33a—
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHICAGO REGIONAL OFFICE
FORMER AIR TRAFFIC CONTROLLERS
REPRESENTED BY THE LAW FIRM OF
LEIGHTON, CONKLIN, LEMOV, JACOBS
AND BUCKLEY
Appellants
V.
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
Respondent
HEARING HELD: Between November 1, 1982
and December 3, 1982 in
Chicago, Illinois
DECISION FILED: January 18, 1983
PRESIDING OFFICIAL: Stephen E. Manrose
Room 3100
230 South Dearborn Street
Chicago, Illinois 60604
—34a—
TABLE OF CONTENTS
of) 8 8 8 ff 8, errr rer rr rrr eet l
JURISDICTION
ANALYSIS AND FINDINGS - MERITS OF
THE CHARGES
PROOF ON OCCURRENCE OF
ib 2) re
PROOF ON PARTICIPATION OF
APPELLANTS IN THE STRIKE
. . . . . . . . —
s 2 &@ 4&4 6 @ @ @ 8
APPELLANTS’ REBUTTAL - SPECIFIC CASES
CHICAGO CENTER (ZAU)
TERRY ANDERSON .....
RICHARD BRANDIS .....
ALLAN BROHOM ......
JAMES BURGARD ......
ROBERT A.CARLSON ...
Ok @ 2) 1,
ice 8 @ 8 .
Pe | ee
po OE a
JEROMETWANSKI......
JEAN REMI...
br ty | a
DENNIS LOGERQUIST ...
gli © ey ESS | re
ROBERT H. MILLER ....
i) at” -.
JAMES H.PEACOCK ....
L.RODNEY PETERSON ..
PETER PIORKOWSKI ....
KENNETH POPOWITCH ..
—3Sa—
WAYNE PRICE ........... 20
RUDOLPH RADNOFF ....... 21
LELAND RASMUSSEN ...... 22
MICHAELREEDY ......... 22
STANLEYRUDD .......... 23
DON SCHUEMANN ......... 23
WILLIAM SIERGEY ........ 24
EDWARDSTEVENS ........ 25
HOWARDTAGGART ...... .25
THOMAS TOEPFER ........ 26
GLENN YOUNG .......... .26
PEORIA (PIA)
TIMOTHY ZUCAL ......... 57
BLOOMINGTON (BMI)
THOMASLUBECK ......... 58
DONALD PORTER ......... 59
PALWAUKEE (PWK)
WAYNEDIONNE .......... 60
MEIGS (CGX)
CAROLSCHURWANZ....... 61
DULUTH (DLH)
DONALD CLASEMAN ....... 62
SPRINGFIELD, IL (SPI)
DON E.BALLESTEROS ...... 04
DANIELA.COPLAN ........ 64
MICHAEL VAN SICKLE ...... 65
ROCHESTER, MN (RST)
STEVEN BONADORE ....... 66
DAVID EFISENBART ........ 66
DAVID FENWICK .......... 66
ROBERTTHACKER ........ 66
SAREE Es CF ERE 66
— 36a —
GORDON W.STOCKER ..... 67
APPELLANTS’ REBUTTAL - OTHER CASES _ .68
AW CHARS 6 ct canes weet tees 68
ANALYSIS AND FINDINGS - AFFIRMATIVE
DEFENSES
USE OF "CRIME PROVISION" .......... 70
DISPARATE TREATMENE 2. ccc scsecas 70
"COMMAND CONTROL" ARGUMENT ..... 71
RIGHT OF REPLY TO LETTER OF INTENT
FINDINGS OF FACT - 7-DAY
RESPONSETIME ..............-.-. 72
THE "RATLEY ISSUE" ............... 73
SPECIAL SITUATIONS - RIGHT OF REPLY
SPRINGFIELD, IL (SPI) ...... 16
GREEN BAY(GRB) ........ 76
PONTIAC (PTK) ........... 77
GALESBURG(GBG)........ 77
DANVILLE(DNV) ......... 78
MOLINE(MLI) ........... 78
DECATUR (DEC) .......... 78
BLOOMINGTON (BMI) ...... 79
DULUTH (DLH) .......... 79
DU PAGE(DPA) ...... ee
ZAU ORAL REPLY OFFICIALS ......... 80
SUSPENSION DURING NOTICE PERIOD ISSUE ..82
SE PeCHNG Y OF See OES UO soisistcennsaescs 83
APPROPRIATENESS OF THE DISCIPLINARY
go NE PET ee eer rere re ee rer rr 83
SPINE 65 cd bab os nt ae ENS ORR Cea 84
FRPPRTOAFEIOD a8 ecco vecssespanaesadacsdeandenedl 86
APPENDIX A - LIST OF APPELLANTS COVERED
BY CONSOLIDATION
APPENDIX B - LIST OF APPELLANTS WHO
RECEIVED LESS THAN 7 DAYS TO
RESPOND TO THE LETTER OF
INTENT
APPENDIX C - MASTER FILE INDEX TO
CORRESPONDENCE AND
EVIDENCE
—38a—
INTRODUCTION
By an order issued February 23, 1982, as amended by or-
ders issued on August 31, 1982, November 1, 1982, and
December 1, 1982, the Board consolidated the appeals of
451 former air traffic control specialists who were employed
at 38 different air traffic facilities under the jurisdiction of
the Chicago Regional Office of the Merit Systems Protec-
tion Board. The appellants were separated from their posi-
tions on various dates during the period of August through
October, 1981, by the agency’s application of adverse action
procedures.
JURISDICTION
Section 7701 of title 5 of the United States Code provides
federal employees with a right of appeal to the Merit Sys-
tems Protection Board from any action which is appealable
to the Board under any law, rule, or regulation. The appel-
lants, who were non-probationary employees in the competi-
tive service, have statutory and regulatory rights of appeal to
the Board from the removal actions. 5 U.S.C. 7511(a)(1)(A),
7512, 7513(d); 5 C.F.R. 752.401(a), .401(b)(1), .405(a).
ANALYSIS AND FINDINGS —
MERITS OF THE CHARGES
Each appeilant in the consolidated group was removed for
the same two reasons. The first charge alleges that appellants
violated 5 U.S.C. 7311, which provides that an individual may
not 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 provides that par-
ticipation in a strike against the United States Government
is a crime for which a sentence of imprisonment can be im-
posed. The supporting specifications state that beginning at
approximately 7:00 a.m. EDT on August 3, 1981, a nation-
— 39a —
wide strike of air traffic controllers against the United States
Government occurred and that appellants who failed to
report for duty as scheduled (at various times on or after
August 3, 1981), participated in the strike. The second
charge alleges that appellants were "absent without
authorization" (AWOL). The supporting specifications state
that "on or after August 3, 1981" appellants were sent
telegrams which ordered them to report to work, but that
they did not return to work and thus remained absent without
authorization.
Adverse actions taken under Chapter 75 of title 5 of the
United States Code must be supported by a preponderance
of the evidence to be sustained. 5 U.S.C. 7701(c)(1)(B). The
Board has held that this evidentiary burden of proof stand-
ard applies to "every element of proof of the agency’s case."
In re: William F. Van Sciver, 1 MSPB 94 (1979).
PROOF ON OCCURRENCE OF THE STRIKE
The first element of the agency’s case, with respect to the
first charge, is whether a strike against the United States
Government occurred beginning on August 3, 1981. By
order dated June 10, 1982, the Board’s Chicago Regional Of-
tice took official notice that a strike by the Professional Air
Traffic Controllers Organization (PATCO) and certain of its
members, agents, employees and others against the United
States Department of Transportation at the Federal Avia-
tion Administration air traffic facilities under the jurisdic-
tion of the Board’s Chicago Regional Office* took place
beginning on August 3, 1981. In consonance with the Board
ruling in Ketchem (quoted in footnote 2), the Chicago
Regional Office declined to take official notice of the exist-
ence of the strike beyond August 6, 1981. The taking of offi-
cial notice satisfies a party’s burden of proving the fact
noticed, subject to refutation by the opposing party. Ketchem
— 40a —
at 3, 4; 5 C.F.R. 1201.67. I find that appellants have not, on
appeal, refuted the existence of a strike for the dates August
3 through 6, 1981, and I therefore find that a strike against
the United States Government by the air traffic controllers
occurred at each facility in this consolidation during the
period of August 3, 1981 through August 6, 1981.
Since I have not taken official notice of the existence of a
strike beyond August 6, 1981, the agency is responsible for
establishing, by a preponderance of the evidence, that the
strike continued on and after August 7, 1981. The impor-
tance of this issue can be better understood following a brief
discussion of the scheduled reporting times of controllers
during the period of August-September, 1981. Documentary
evidence of record reveals that on August 3, 1981, at 11:00
EDT, President Reagan advised striking air traffic control-
lers that they must return to work within 48 hours or they will!
have "forfeited their jobs and will be terminated." This
Presidential statement was implemented by the Ad-
ministrator of the FAA, Mr. J. Lynn Helms, inGENOTS 1!27
and 128, which were received by all 38 facility chiefs involved
in the circumstances of this consolidation. These GENOTS
(General Notices by Electronic Mail) advised facility chiets
that those controllers who failed to return to work for their
first regularly-scheduled shift (referred to as their “deadline”
shifts) following 11:00 EDT on August 5, 1981 should be sent
proposed removal notices. Since the first scheduled shift of
many of the controllers in this consolidation occurred on or
after August 7, 1981, the agency must establish that a strike
continued at least until the date of their deadline shifts in
order to establish their participation in the strike.”
I turn now to the question of evidence which is a matter
of record concerning the continuation of the strike beyond
August 7, 1981. Evidence which is highly probative of a strike
is the withdrawal of employee services from an employer.
—4la—
The courts have, in fact, held that the "essence" of striking "is
(the) actual refusal in concert with others to provide services
to one’s employer.” United Federation of Postal Clerks v.
Blount, 325 F. Supp. 879 (D.D.C.), aff'd 404 U.S. 802 (1971).
Other evidence of the continuing strike includes the picket-
ing activities which occurred at many of the air traffic
facilities which are a part of this consolidation. * Finally, I find
that the public statements of the parties involved in the strike
have some probative value in determining the duration of
the strike.
In analyzing the above issue, it is important to keep in
mind that, as stated by the Board in Ketchem, this strike was
a nationwide strike of air traffic controllers. Therefore, even
though appellant’s counsel argues that the last appellant
within this consolidated group could not have been "on strike
by himself” since all other appellants were, by the time of
his deadline shift, "locked out" of the facility and unable to
report to work,” this appellant was acting in concert with all
other controllers on a nationwide basis, who had deadline
dates on or after his scheduled return-to-duty date and who
failed to return to work.’ I therefore find that each appellant
within this consolidated group was acting in concert with
other former controllers (even though those appellants with
later deadline dates were arguably acting in concert with
fewer striking controllers) when he failed to report for his
deadline shift.
The record further shows (See footnote 4) that picketing
at FAA facilities occurred well after all of the appellants in
this consolidation had been charged with participating in the
strike. While there is little doubt, as argued by appellants’
counsel on appeal, that picketing activities are protected
under the First Amendment to the Constitution (Thornhill
Alabama, 310 U.S. 88 (1940)), picketing activity by con-
trollers who were supposed to be working (the record here
—42a-
is replete with such examples) may properly be considered
in determining that these controllers were on strike.” See
Jones v. Tennessee Valley Authority, MSPB Docket No.
AT07528010300 (February 19, 1982); Duckett v. Tennessee
Valley Authority, MSPB Docket No. AT07528010325
(February 19, 1982). I further find, as discussed in footnote
8, that the picketing activities which occurred at some of the
facilities within this consolidated group following the dead-
line dates for most, if not all, of the former controllers in this
consolidated group provides evidence of the continuing na-
ture of the nationwide strike.
I have also considered the public statements of the parties
involved in this case in determining the length of the strike.
Appellant argues that since various FAA officials declared
the strike to be over on or about August 5, 1981, the strike
should be considered as having ended on that date or short-
ly thereafter. The agency, on the other hand, introduced into
the record numerous newspaper articles which quoted many
of the appellants in this consolidated group as noting the con-
tinuation of the strike well beyond August 5, 1981, not-
withstanding the statements of FAA officials and the
position of the agency that the strike was over. In addition,
the agency introduced into the record an October 8, 1981
statement from PATCO President Robert Poli, who as-
serted that the strike was continuing as of that date. Further-
more, the agency representative pointed out in her closing
Statement that the union never declared the strike to be over.
None of the statements made by any of the above-
referenced individuals carry as much weight, in determining
the length of the strike, as does the evidence which estab-
lished the actual withdrawal of services from the agency by
the controllers. Nevertheless, since union officials called the
strike, I find that statements by PATCO officials as well as
those made by individual controllers who are members of
—43a—
this consolidated group concerning the length of the strike
are more indicative of the length of the strike than are the
statements of the referenced agency officials. Should the
union at any time have decided to end the strike, it could
have issued a public statement to that effect, and presumab-
ly those striking controllers who still could have reported for
their deadline shifts would have returned to work. As aptly
pointed out by the agency representative, however, the union
did not declare the strike to be over, and controllers con-
tinued to absent themselves from work, in concert with other
controllers, well beyond August 5, 1981. For this reason, it is
clear that the strike continued well beyond August 5, 1981,
and to the extent that any eviderite concerning the state-
ments of parties on the length of the strike is probative, it
reveals that the strike still existed on or before the deadline
dates for each of the controllers in this consolidated group.
After a consideration of all of the above factors (the
nationwide scope of the strike, the continuing action of
employees, in concert with others, to withdraw their services
from the agency, the picketing activity, and the statements of
union officials and their agents concerning the continuation
of the strike), I find that a preponderance of the evidence
shows that the strike continued through the time that each
of the former controllers in this consolidated group was
scheduled to return to work.
PROOF ON PARTICIPATION OF
APPELLANTS IN THE STRiKE
| will now address the issue of the participation by the ap-
pellants in this consolidated group in the strike. Appellants’
counsel and the agency entered into the following stipula-
tion (identified as Agency Hearing Exhibit #11) which ap-
plies to all appellants at facilities other than LaCrosse (LSE),
a
Appleton (ATW), Pontiac (PTK) and Meigs (CGX), except
as specifically noted in this decision.
Mr. (facility chief) would testify to the best of his
knowledge as follows:
1. The time and attendance records truly and ac-
curately reflect the regularly-scheduled shifts
as posted on the watch schedule and any
directed shift as assigned to the appellants by
a supervisor and reflected in the adverse action
file.
The appellants did not report ior their first
regularly-scheduled or directed shift as as-
signed after 11 a.m. EDT on August 5, 1981,_
nor any shift prior to that beginning with the
7:00 a.m. shift on August 3, 1981, (that) they
were required to report for.
N
3. The appellants did not, in his opinion, provide
any substantive information for their failure to
report for the above-referenced shift.
4. Mr. (facility chief) reviewed and considered all
written responses received from appellants
prior to making his decision to remove appel-
lants.
5. Mr. (facility chief) reviewed and considered all
summaries and recommendations concerning
the oral reply prior to making his decision.
6. All notices of intended removal were mailed
regular and certified mail.
7. Mr. (facility chief) is not aware of any appel-
lants having contacted the facility prior to their
deadline shift to indicate that they were ready
to work or were confused as to when to report
to work.
—4Sa—
8. In deciding that an appellant participated in a
strike and was AWOL, Mr. (facility chief) con-
sidered that a nationwide strike was in
progress, that the appellants were scheduled to
report for work, that they failed to report to
work on or at any time prior to their deadline
shift and that he believed the appellants of-
fered no substantive information for his/her
absence.
For appellants at the 34 facilities covered by this stipula-
tion (except as noted below), this stipulated testimony con-
stitutes unrebutted evidence that these appellants failed to
report for their first regularly-scheduled shifts following
11:00 am. EDT on August 5, 1981. The record therefore
shows that these appellants withheld their services from the
agency during the strike.
The documentary evidence and the testimony of the
facility chiefs for the LaCrosse (LSE), Appleton (ATW) and
Pontiac (PTK) facilities establishes that all appellants at
those facilities failed to report for their first regularly-
_scheduled shifts following 11:00 a.m. on August 5, 1981, and
I therefore find that these appellants also withheld their ser-
vices from the agency during the strike.
The evideree concerning the appellants at the Meigs
(CGX) facility is unique in that there was no stipulated or
live testimony from the facility chief because he suffers from
a degenerative disease which has rendered him unable to
communicate in any manner concerning these cases.'! On
my review of the documentary evidence contained in the ap-
peal files for the two appellants in this consolidation from
that facility, however, I find that they were scheduled for duty
but did not report for their first regularly-scheduled shifts
following 10:00 a.m. (CDT) on August 5, 1981. Accordingly,
|
—46a—
the record shows that these appellants also withheld their
services from the agency during the strike.
The very essence of a strike is the withholding of one’s ser-
vices from his employer. The Point Reyes, 110 F.2d 608 (Sth
Cir. 1940). Since a failure to appear for duty as scheduled
during a strike gives added weight to the strikers’ cause and
since the law generally presumes that individuals intend the
reasonable and probable consequences of their own actions
(United States v. Cangiano, 491 F.2d 906 (2nd Cir.), cert.
denied 419 U.S. 904 (1974)), it may be presumed that an in-
dividual who does not appear for work as scheduled during
a strike supports the strike. This presumption has been
recognized by the Board in the case of Schapansky v. Depart-
ment of Transportation, MSPB Docket No. DA075281F 1130
(October 28, 1982), which holds that an agency need only es-
tablish an employee’s unauthorized absence from duty
during a strike to establish a prima facie showing of that
employee’s participation in the strike. In view of the show-
ing in this case that all appellants in this consolidated group
(with the exception of those noted infra) withheld their ser-
vices from the agency during the strike, I find that the record
establishes a prima facie showing of participation in the
strike by each of these former air traffic controllers.
Once a prima facie case of participation in a strike has
been established, the burden of persuasion shifts to the
employee to rebut the agency’s case by presenting evidence
to show that he had no knowledge of the strike or that his ab-
sence was due to some factor other than intentional par-
ticipation in the strike. Id. at 6. Since no appellant in this
consolidated group contends that he was unaware of the
strike, I willexamine the reasons given by each appellant who
presented probative evidence in explanation of his non-ap-
pearance. I will also examine the defenses of those appel-
—47a—
lants for whom counsel submitted specific argument at the
hearing.
Before proceeding with these specific cases, I will discuss
an issue which appellants’ counsel raises with respect to the
Chicago Center (ZAU). Counsel introduced into the record
(identified as Appellants’ Group Exhibit #16) what purport
to be the "original" sign-in logs for the ZAU facility for the
first week of the strike (August 3 through 8, 1981).
Appellants’ counsel avers that the sign-in logs contained in
the appeal files of the ZAU appellants contain certain dis-
crepancies when compared against these original logs (such
as the changing of an original notation of annual leave to
AWOL) and that the agency "doctored" these amended logs
in order to support the removal actions it had taken.? (TR:
Vol. 18, p. 114) In view of the supposed unreliability of these
; amended sign-in logs and the agency’s purported doctoring
of evidence, counsel requests that all ZAU cases be sum-
marily reversed.
Although the agency’s counsel questions in her closing ar-
gument the importance of these documents (TR: Vol. 17, pp.
43, 44), I find that they are of some significance in that ZAU
facility chief George Gunter stated that he relied on the sign-
in logs (the agency’s time and attendance records were
revived from the sign-in logs - TR: Vol. 1, p. 64) to determine
whether a particular appellant appeared for duty for
scheduled shifts during the strike. (TR: Vol. 1. p. 64) Since
Mr. Gunter’s stipulated testimony (in pertinent part, that
ZAU appellants did not appear for their first scheduled
shifts following 10:00 a.m. on August 5) is therefore based
(for the vast majority of ZAU appellents) on this documen-
tary evidence, rather than on any personal knowledge Mr.
Gunter may have had concerning their absences, counsel’s
contentions concerning the validity of these documents and
| i —
SS
—48a—
his motion that all ZAU cases must be summarily reversed
must be given careful consideration.
Mr. Gunter was unable to explain the "discrepancies" be-
tween these two sets of sign-in logs other than to make a
vague statement that the file copy logs were "updated" (TR:
Vol. 1, p. 113), and through a series of events at the hear-
ing, !* no other evidence has been made a matter of record
concerning when (if ever) the file sign-in logs were changed,
who changed them, for what purpose they were changed, and
which sign-in logs are more accurate. In view of the lack of
evidence which would show that some of the file copy sign-
in logs were "doctored" for a specific purpose, I am unable
to conclude that they were altered by the agency in an im-
proper attempt to influence the outcome of these proceed-
ings, and I find that they cannot be totally disregarded as
probative evidence. Although not necessary to this findings,
I further note the inappropriateness of making a blanket |
finding that would, in effect, result in a summary determina-
tion that the over 100 ZAU appellants who counsel alleges |
have two sets of sign-in logs (or all of the ZAU appellants in
this consolidated group, if appellants’ argument is accepted
in toto) did not miss their deadline shifts. Such a finding
would be tantamount to pretending that a strike did not exist
at the Chicago Center, a ridiculous finding when one con-
siders the totality of the evidence concerning the withdrawal
of services by appellants within this consolidated group, and
the other strike activity at ZAU, such as picketing. I further
note that my failure to exclude the agency-submitted sign-in
logs did not prejudice the ZAU appellants in the presenta-
tion of their cases since these appellants could have (and
many, in fact, did) dispute the fact of their alleged absences
from their regularly-scheduled tours of duty or otherwise ex-
plained the reason(s) for their absences in their hearing
before the Board.
asian eae
» enema
—49a—
Since I find that the file copy sign-in logs, upon which Mr.
Gunter’s testimony is in part based, cannot be summarily dis-
regarded, I find that the agency’s prima facie case, with
respect to the ZAU appellants, has been properly estab-
lished upon Mr. Gunter’s live and stipulated testimony con-
cerning the non-appearance of the ZAU appellants at their
first regularly-scheduled shifts following 10:00 a.m. on
August 5, 1981, and I see no reason to disturb my previous
finding that a prima facie case of striking exists for all appel-
lants at the Aurora facility (except as noted infra).
APPELLANTS’ REBUTTAL — SPECIFIC CASES
I will now address the specific evidence and argument
provided by all appellants in this consolidated case concern-
ing their withdrawal of services from the agency during the
. 5
Strike.”
CHICAGO CENTER (ZAU)
TERRY ANDERSON
This appellant’s proposed removal notice charges him
with striking beginning with a 7:00 a.m. shift on August 3,
1981 through the date of the letter (August 5, 1981) and
notes, under a second charge of AWOL, that he was
scheduled for a 11:00 p.m. shift on_August 5. Since the per-
tinent watch schedule and time and attendance report
reflects that appellant was-scheduled for (and missed) 3:00
p.m. shifts on August 3, 4, and 5, 1981, appellant argues that
he was given improper notice of his termination and that the
action should be reversed on that ground.
Appellant’s motion is purely procedural in nature since
the record clearly reflects that he was absent for his deadline
shift was well as two previous shifts. Since the letter of intent
was not issued until after this appellant had missed his dead-
a
—50a—
line shift, the fact that the letter had the wrong times of
appellant’s shifts written on it had no bearing on his decision
to go on strike. I further find that the error cited in this case
was de minimus in nature since the letter cited the correct
dates of appellant’s strike activity and was sufficiently clear
so to have advised appellant "with sufficient particularity...of
allegations he must refute or acts he must justify.” Burkett v.
United States, 402 F.2d 1002, 1004 (Ct. Cl. 1968). I also note,
in this respect, that appellant did not indicate at the oral reply
that he was unable to respond to the proposal notice due to
the fact that it cited the wrong shifts. I find, in short, that ap-
pellant has cited no harmful error in this respect (as required
under 5 C.F.R. 1201.56 for the agency’s action to be reversed
on procedural grounds), and I further find that he has not
rebutted the agency’s prima facie case of his strike participa-
tion. I therefore find that the agency’s charge is supported
and sustained by a preponderance of the evidence. |
RICHARD BRANDIS
This appellant testified that he was not scheduled for duty
on August 3 or 4, 1981, but that he was scheduled at 7:00 a.m.
on August 5 and 6 and failed to report. (TR: Vol. 7, pp. 79,
80, 87) Appellant stated, in explanation of his absences, that
on August 3, 1981, he received a court summons which or-
dered him to appear in the Federal District Court in
Chicago, and that he so appeared at 12:00 noon on August
5, 1981. He stated that the presiding judge ordered him to
return to work on August 6, and that he intended to obey the
judge’s order until he was advised by his attorney that he had
already been fired. (TR: 74-78) Appellant admitted that he
did not call his facility to notify them of his court appearance,
nor did he contact them to clarify his work status. (TR: 80,
85).
ae |
—5S5la—
This case is similar to the factual circumstances of the John
Holic (ZAU) case (discussed infra), with the exception that
this appellant could have returned to work on August 6, 198,
the day after his court appearance. Like Mr. Holic, however,
this appellant did not contact the agency to request leave
time for his court appearance or to clarify his status.
Moreover, the record fails to reveal that appellant made any
attempt to return to work. I therefore find that he has not
rebutted the agency’s prima facie case, and the strike charge
is supported and sustained by a preponderance of the
evidence.
ALLAN BROHOLM
This appellant was charged with strike participation begin-
ning on August 3, 1981, and the documentary evidence
reflects that he was scheduled for and missed shifts on
August 3-5, 1981. His deadline shift was on August 8, 1981,
and his letter of intent was dated that day and charged him
for his strike activity from August 3 through 8. Appellants’
counsel, citing Mr. Gunter’s testimony that at the time of the
issuance of this appellant’s proposal notice the agency had a
policy of charging appelianis solely for missing their dead-
line shifts rather than shifts missed during the 48-hour
Presidential moratorium period (TR: Vol. 2, pp. 92-95), ar-
gues that this appellant was improperly charged with his
strike activity on August 3-5, 1981.
A review of Mr. Gunter’s testimony on this point estab-
lishes that the proposed removal notice guidelines were
changed in a manner which would have resulted in this ap-
pellant only being charged with striking on August 8. Gunter
did not consider this appellant’s proposal notice to be in
error, however, in view of his opinion that appellant could
have been charged with his earlier strike participation. (TR:
93, 131) I find that even though the agency policy had
—~52a—
-
changed concerning the dates ZAU appellants were to be
charged with striking, there was no prohibition against the
agency making exceptions to its policy or not following its
policy in all cases. | therefore find that the agency could
properly have charged appellant with his strike participation
for all of the days that he was on strike. Moreover, even as-
suming that appellant should not have been charged with his
strike participation before August 8, I find that he has not
rebutted the agency’s prima facie case with respect to his
strike participation on the 8th. In short, I find that appellant -
has not rebutted the agency’s prima facie case, and the strike
charge is supported and sustained by a preponderance of the
evidence.
JAMES BURGARD
This appellant was scheduled for duty on August 3 through
5, 1981, but failed to report as scheduled. He did not testify
at the hearing, but his wife testified on his behalf. She stated
that he worked on August 2, but began complaining of "back-
ache and stomach pains‘ on August 3 and stayed in bed that
day. (TR: Vol. 6, p. 93) On August 4, she called a doctor who
Set up an appointment for appellant on August 10. By August
7, she testified that appellant was in "excruciating pain" and
went to the emergency room of a hospital, where his condi-
tion was diagnosed as kidney stones. She further stated that
surgery was necessary to correct his ailment. (TR: 94-97)
Mrs. Burgard admitted that neither she nor her husband con-
tact the facility to request sick leave for the period of his ab-
sence. She stated, in explanation, that her husband was
‘under the impression" that sick leave was being refused.
(TR: 93, 94)
Although the testimony of Mrs. Burgard would indicate
that her husband was in some pain during the first week of
the strike (this testimony is corroborated by some medical
i a reel
—53a—
documents which were introduced by appellant on appeal),
appellant never went through proper channels to request
sick leave for his absence. Had appellant made such a re-
quest, his condition could have been evaluated by ap-
propriate agency personnel and a determination could have
been made concerning his ability to work. Appellant’s failure
to contact the agency casts doubt on the legitimacy of the
reasons for the absence and left the agency with no alterna-
- tive but to consider him on strike. I therefore find that ap-
pellant has not rebutted the agency’s prima facie case of his
strike participation, and that the strike charge is supported
and sustained by a preponderance of the evidence.
ROBERT A. CARLSON
This appellant was initially issued a proposed removal
notice on August 11, 1981 for his alleged strike activity begin-
ning at 11:00 p.m. on August 3, 1981 "until the present." Fol-
lowing appellant’s oral reply to this proposal notice, the
agency amended its charge to allege that appellant was on
strike beginning at 3:00 p.m. on August 6, 1981. Mr. Gunter
admitted on appeal that this appellant had no shift on August
3 (after 7:00 a.m.), that the 4th and Sth were his regular days
off, and that the 6th of August at 3:00 p.m. was actually his
first shift during the strike as well as his deadline shift. (TR:
Vol. 2, pp. 120, 121) Appellant argues on appeal that his
remarks at the oral reply were subsequently "used against
him" (TR: Vol. 18, p. 161), and that the agency could not sub-
sequently correct its charge after his oral reply.
Before addressing the above procedural issue, I note that
the documentary evidence establishes appellant’s failure to
uppear at work for his deadline shift. Appellant has
presented no reason for his failure to appear at that shift, and
| therefore find that he has not rebutted the agency’s prima
facie case of his strike participation on that date. According-
——
—54a—
ly, the strike charge is supported and sustained by a
preponderance of the evidence.
Concerning appellant’s allegation of procedural error, he
has the burden of establishing, by a preponderance of the
evidence, that this purported error was "harmful" (that the
agency might have reached a different conclusion in the case
in the absence of the error). See Jones v. Department of the
Navy, MSPB Docket No. PH07528010141 (July 30, 1981); 5
C.F.R. 1201.56(b)(1). Appellant has not cited, and I do not
find, that there is any law, rule, or regulation which
precluded the agency from cancelling its first letter of intent,
and issuing another one, following appeliant’s oral response.
I further find that appellant has failed to show the harm of
the agency’s action in view of the fact that the first letter
charged him with strike participation from August 3-11 (a
period of time which encompassed his August 6 deadline
date). In short, I find that appellant has not met his burden
of showing harmful error concerning this allegation.
LARRY EDEN
This appellant was charged for his strike activity beginning
with the 11:00 p.m. shift on August 6, 1981 through the date
of the proposal notice, August 8, 1981. The documentary
evidence of record reflects that appellant was scheduled tor,
missed, and was recorded as AWOL for the 11:00 p.m. shift
on August 5 and the 7:00 a.m. shift on August 8. Gunter ad-
mitted that the proposal notice incorrectly charged appellant
with missing the 11:00 p.m. shift on August 6. (TR: Vol. 3,
Since appellant has not been charged with his strike par-
ticipation for his failure to appear for his August 5 shift, I will
not consider his absence on that date as a part of the charge
against him. Appellant’s failure to appear for the August 5
shift, however, meant that he had missed his deadline shift,
—5S5a—
that he was "locked out" of the facility (TR: Vol. 2, pp. 26,
27), and that he would have been unable to work the August
8 shift. (TR: Vol. 2, p. 27) I therefore find that he cannot be
charged with his withholding of services on August 8, in view
of the fact that he would not have been permitted to return
to work (See Hess (ZAU) case, discussed infra). °In short, I
find that the agency has not established a prima facie case of
this employee’s strike participation, and the charge must be
dismissed.
JEFFRY ELLIS
This appellant was charged with strike participation begin-
ning at 7:00 a.m. on August 3, 1981 through the date of the
notice (August 5, 1981), and the second charge (AWOL)
notes that he was scheduled for a shift to begin at 11:00 p.m.
on August 5, 1981. The documentary evidence reveals that
appellant wa: scheduled for, missed, and was recorded as
AWOL for the 7:00 shifts on August 3 and 4, an 11:00 p.m.
shift on August 4, and a 7:00 a.m. shift on August 6, 1981 (his
deadline shift). Mr. Gunter admitted that the agency had in-
correctly charged appellant in the proposal notice, and that
the charges were issued before appellant’s deadline shift.
(TR: Vol. 3, pp. 51, 52)
Although the record would indicate that appellant was
‘locked out" of the facility (See TR: Vol. 3, p. 30) and would
not have been able to work on August 6 had he reported for
duty, I find that there is an important distinction between this
case and the cases of other appellants where I have not sus-
tained the charge based on this "lock-out" situation. Specifi-
cally, this appellant was properly charged with and I now find
that he was on strike for three shifts before his deadline shift.
Since implicit in the concept of a "deadline shift" is the re-
quirement that an appellant must report back to work before
he can gain amnesty for his past strike activities, I find that
— 56a—
the agency could have properly charged this appellant with
his strike activities on August 3 and 4 since-this appellant
never reported back to work (even assuming that he would
not have been permitted to work his position). I further note
that this appellant did not receive his proposed removal
notice prior to his deadline shift and therefore could not
have relied on the notice in failing to report to work. I find,
in short, that appellant has not rebutted the agency’s prima
facie case, and that the strike charge for his August 3 and 4
shifts is supported and sustained by a preponderance of the
evidence.
JORDAN HESS
This appellant was on uncancelled annual leave during the
first week of the strike and was due back to work on August
10, 1981 at 3:00 p.m. In a letter dated August 8, 1981, the
agency erroneously proposed his removal for his failure to
report to work during the period of his annual leave. Appel-
lant failed to report for his shift on August 10, and the agen-
cy cancelled its prior proposed action and issued a new
proposal notice on September 9, 1981 for appellant’s failure
to report for work on August 10. Appellant contends that he
received, via regular mail, a copy of his proposal notice on
August 10, before his scheduled shift, and that he did not
report for duty or call the facility because "the proposed
notice said (he) was already fired about five days prior to
that.” (TR: Vol. 6, pp. 133, 136) Appellant stated that he
checked with PATCO "to see what was going on with these
kinds of things” (TR: 137), that he appeared on the picket
line On numerous Occasions On or after August 11, and that
he supported the actions of other picketers, including those
who were (in the words of the agency representative) "yell-
ing and shouting." (TR: 141-144) Chief Gunter admitted that
since appellant had been issued a proposed removal notice
before his assigned shift on August 10, he "would not have
—57a—
been permitted to work his positica.” (TR: Vol. 3, p. 30)
Gunter stated, however, that appellant was "observed" in the
area, did not attempt to contact the facility (either by
telephone or in person) to clarify his situation, did not at-
tempt to report to duty on August 10, and did not explain his
circumstances at the oral reply. (TR: 26, 27, 29, 35)
The above evidence raises some question about whether
appellant intended to report to work on August 10, in view
of his failure to call the facility or attempt to report to work
(there is no evidence that appellant was aware that he would
be unable to report to work). Nevertheless, I find that the
appropriate test for evaluating appellant’s strike participa-
tion must be based on a determination of whether appellant
was scheduled for and would have been permitted to work
for the time he was charged with being on strike. Stated
another way, I find that an appellant cannot be charged with
withholding his services from the agency (the "essence" of
striking as noted previously) on a day when he would not
have been permitted to work. " For this reason, I find that
evidence of an appellant’s subjective intent (including his
picketing activities) are not relevant in a case such as this
where the undisputed record reveals that appellant could not
have withheld his services since he would not have been per-
mitted to work. I find, in short, that the agency has not estab-
lished a prima facie case of the participation by this appellant
in the strike, and that the strike charge is not sustained.
JOHN HOLIC
This appellant was scheduled for duty at 3:00 p.m. on
August 3 and 5, 1981, but failed to report for either day. He
candidly admitted that he was "on strike" on August 3 (TR:
Vol. 5, p. 58), but offered as a reason for his absence on
August 5 the fact that he was summoned, as a local PATCO
officer, to appear in the Federal District Court for the Nor-
— 58a —
thern District of Illinois for the purpose of compelling him
to return to work. (TR: 47-49) He stated that while he was
in court, his attorney advised him that he had already been
fired and that he could not return to work. (TR: 61) Appel-
lant further stated that he had "assumed" the agency knew he
would be in court on August 5, and he admitted his failure
to contact the agency and notify them of his absence that day.
(TR: 59, 60)
Appellant Holic has admitted he participated in the strike
on August 3. As for his absence on August 5, I do not find his
explanation persuasive. He had the responsibility for notify-
ing the agency of his absence and for requesting court leave
to cover the period of his absence. Notwithstanding this
obligation, appellant did not report his absence to the agen-
cy, nor did he take any other steps to return to work. I find,
in short, that appellant has not rebutted the agency’s prima
facie case of his strike participation, and the strike charge is
therefore supported and sustained by a preponderance of
the evidence.
JEROME IWANSKY
This appellant was on annual leave for the period of the
first week of the strike, and he was fired for his participation
in the strike that week. Appellant’s appeal file reflects that
his supervisors made numerous telephone calls to his house
in an attempt to cancel his leave (as documented in written
memorandums), but they were unsuccessful in reaching him.
Appellant’s wife was reached during these attempts and was
told to have appellant call the facility. Appellant, however,
never returned the facility’s calls. In one of the referenced
memorandums, appellant’s team supervisor, Mr. Wayne
Winslow, stated that "due to the discussions on a daily basis,"
appellant Iwansky was aware that his annual leave was can-
celled in the event of a strike. Mr. Gunter stated that he
—59a—
relied on these memorandums in determining that appellant
should be terminated since, in his opinion, appellant Iwansky
knew that his leave was cancelled in the event of a strike.
(TR: Vol. 6, pp. 46, 55)
The failure of appellant to return the facility’s calls anc the
Statement of his team supervisor that he (appellant) was
aware that his leave was cancelled in the event of a strike
strongly suggests that appellant willingly intended to par-
ticipate in the strike. Notwithstanding this possibility,
however, I find that appellant’s leave was never specifically
cancelled, and I am unwilling to read into the record, from
inferences that might be drawn from the above evidence, a
contrary finding. I note parenthetically that in view of the
agency’s failure to cancel appellant’s leave, it should have
merely waited for the end of his leave and see if he returned
to duty. It did not, however, and since appellant could not
have withheld his services during a period in which he was
on uncancelled annual leave, I find that the agency has not
established a prima facie case of his strike participation. Ac-
cordingly, I find that the strike charge is not sustained.
JEAN KEMPHUES
This appellant was issued a proposed removal notice,
dated August 8, 1981, which charged her with striking start-
ing with her 11:00 p.m. shift on August 5, 1981 "until the
present...." Mr. Gunter testified that appellant’s first
scheduled shift during the week of the strike was on August
8, 1981 at 7:00 a.m. (TR: Vol. 3, pp. 54-56) The file copy sign-
in log and watch schedule reveal that appellant’s first
scheduled tour of duty during the strike (and also her dead-
line shift) was the 7:00 a.m. shift on August 8, 1981, but that
appellant did not appear for that shift. Appellants’ counsel
argues that appellant was fired, at least in part, for shifts she
was not required to attend (due to annual leave), and he also
—60a—
argues that her sign-in log (for August 5) was improperly al-
tered. In support of the latter argument, he introduced into
the record (as Appellant’s EXhibit #15) a copy of a sign-in
log for August 5, which is different from the one in the record
and shows that appellant was on annual leave on that date.
I find that appellant’s arguments concerning the sign-in
log for August 5S are of not material since the agency, via Mr.
Gunter’s testimony, has, in effect, stipulated that appellant
was on annual leave on August 5. The key issue is whether
the strike charges must fail due to the agency’s error in charg-
ing appellant with striking on days when she was on annual
leave. Insofar as the charge is based on those days, it cannot
be sustained. As far as appellant’s absence on August 8,
which is not disputed in the record, the charge does state a
proper cause of action. Since appellant was not "locked out"
of the facility at that point but failed to return to duty, I find
that this portion of the charge, for which the agency has es-
tablished a prima facie case, has not been rebutted by appel-
lant. I therefore find that the strike charge is supported and
sustained by a preponderance of the evidence.
DAVID KISH
This appellant was issued two proposed removal notices.
The first one, dated August 10, 1981, charges him with strike
participation from 8:00 a.m. on August 5, 1981 to August 10,
and the second one, dated September 4, 1981, charges him
with strike participation beginning at 7:30 a.m. on August 6,
1981 until the date of the notice. Mr. Gunter testified that
this appellant should have been charged, in the first
proposed notice, with missing his deadline shift, which was
(as referenced in the second proposal notice) on August 6 at
7:30 a.m. (the record shows that appellant was scheduled at
7:30.a.m. on August 5, rather than at 8:00 a.m.). (TR: Vol. 2,
pp. 146, 147; File: Tab 5) The record reflects that appellant
—6la—
did not report for either the August 5 or the August 6 shift,
and that he was recorded as AWOL. Appellant’s repre-
sentative argues that once appellant was fired for missing the
August 5 shift, he had no obligation to return to work on
August 6.
This appellant was not locked out of the facility on August
6, since he had not missed his deadline shift before that date,
nor had his first proposed removal notice been issued. Ap-
pellant could have therefore worked his deadline shift, but
the record reflects that he did not appear for it. I therefore
find that he was properly charged with missing the August 6
shift, and that he has not rebutted the agency’s prima facie
case of his strike participation. I therefore find that the strike
charge is supported and sustained by a preponderance of the
evidence.
DENNIS LOGERQUIST
Appellant Logerquist was charged with striking beginning
with his 7:30 a.m. shift on August 3, 1981 through the date of
the proposal notice (August 6, 1981). The documentary
evidence submitted by the agency reflects that appellant was
scheduled for duty on August 4-6, 1981 (for shifts beginning
at 6:30 a.m.), and that he missed those shifts and was charged
with AWOL. Appellant argues (based on the testimony of
Mr. Joseph Quartuccio, data systems specialist, who stated
that he was unfamiliar with the watch schedule in appellant’s
file - TR: Vol. 4, pp. 78-81), that the agencv’s documentary
evidence should be disregarded.
Although some of the documentation in this appellant’s
file has been called into question by Mr. Quartuccio, there
is an absence of evidence which would indicate that these
documents are invalid or incorrect, and I am unable to find,
as counsel argues, that they should be totally disregarded.
Moreover, I note that Mr. Quartuccio himself testified to
—62a—
appellant’s absence from his scheduled tours of duty during
the first week of the strike. (TR: 60, 78, 79) Appellant has
failed to provide any evidence concerning his absence from
duty during the strike, and I therefore find that he has not
rebutted the agency’s prima facie case of his strike participa-
tion. Accordingly, I find that the strike charge is supported
and sustained by a preponderance of the evidence.
PATRICK LYDON
This appellant stated that on July 31, 1981, his wife gave
birth to a premature baby weighing 1 pound and 14 ounces,
and that he called his supervisor and requested annual leave.
He stated that when he informed his supervisor that he
would call in Monday (his next assigned workday) if he was
unable to return to work, his supervisor replied "Don’t worry
about it....Come back when you can." (TR: Vol. 7, pp. 135,
139, 140) Appellant stated that based on this conversation
he believed that the agency had granted him indefinite emer-
gency annual leave and that it should have called him if it
needed his services. (TR: 146) The record shows that appel-
lant missed all of his scheduled shifts during the week of the
strike, including his deadline shift on August 6, 1981. The
time records in this appellant’s file reflect that he was only
granted annual leave for the day of July 31, 1981.
The record in this case reveals that appellant was under-
going a persona! emergency situation which, according to his
testimony, existed for at least the first week of the strike. Not-
withstanding this emergency, he was still required to secure
approved leave for the period of his absence. Even assum-
ing the accuracy of appellant’s account of the telephone con-
versation with his supervisor, he was not specifically advised
that he would be granted indefinite emergency annual leave.
Moreover, there is no written record that he was put in such
a leave status. Appellant was responsible for specifically
—63a—
securing leave for the period of this absence, and I find that
the record fails to indicate that leave was granted in this case.
[n making this finding, I note that it was unreasonable for ap-
pellant to have expected the agency to call him. The agency
was itself in an emergency situation, and it could not have
been expected to call employees to discuss personal situa-
tions such as that which existed here. Futhermore, appellant
could have himself clarified his leave situation if he had so
desired since he had enough time to go to the union head-
quarters to show pictures of his baby to some friends (TR:
Vol. 7, p. 150) and to stand on the picket line shortly follow-
ing his deadline date. (TR: Vol. 4, p. 66) I find, in short, that
this appellant has not shown the legitimacy of his absence
during the week of the strike, and that he has failed to rebut
the agency’s prima facie case against him. I therefore find
that the strike charge is supported and sustained by a
preponderance of the evidence.
ROBERT H. MILLER
This appellant was on uncancelled annual leave during the
entire time he was charged with striking. On August 14, 1981,
his attorney called the facility and advised Mr. Richard
Pender that Mr. Miller was "ready and willing” to return to
work on August 17 when his vacation was over, but Mr.
Pender advised him that Miller could not return to work at
that time. (File: Tab 2) Mr. Gunter candidly admitted that
he made a mistake in this case. (TR: Vol. 6, p. 31)
I find that the agency has failed to establish that this ap-
pellant withdrew his services during the strike, and that it has
not established a prima facie case of his strike participation.
Accordingly, I find that the strike charge cannot be sus-
tained.
HENRY MOSES
—64a—
This appellant testified that he was scheduled to work on
August 6 at 3:00 p.m., but that he was experiencing a short-
ness of breath and stayed home on his doctor’s advise. (TR:
Vol. 6, pp. 150, 151) He further noted that the doctor had
prescribed a medicine which made him drowsy. (TR: 152
Appellant stated that he called into the facility at 2:00 p.m.
on August 6 and requested "indefinite sick leave,” but that
some unidentified person advised him that all sick and an-
nual leave had been "cancelled". (TR: 154) In support of his
appeal, appellant introduced into the record a statement
dated August 31, 1982 from Dr. Osvaldo Lastres, who
described appellant’s condition (on or about August 6, 1981)
as a"general malaise."
Assuming that appellant had, in fact, called into the facility
on August 6 to request sick leave (a tenuous assumption in
view of appellant’s failure to talk to his supervisor or anyone
else whose name he could recall), the reply made by the
unidentified individual he talked to was (apparently) that his
leave request could not be approved. The approval of leave
is at the discretion of appropriate supervisory authority, and
I find, in view of the emergency circumstances which existed
at the facility and the medical condition which is now
described by appellant’s doctor, that it was not unreasonable
for the agency to have denied any sick leave request made
by appellant. I note, in making this finding, that even assum-
ing appellant was on medication which made him drowsy, he
still could have performed administrative (not air control-
ling) work. In short, I find that appellant has not rebutted the
agency’s prima facie case, and that the strike charge is sup-
ported and sustained by a preponderance of the evidence.
JAMES H. PEACOCK, JR.
This appellant received two letters of proposed removal.
The first one, dated August 10, 1981, charged him with his
—6Sa—
alleged strike activity beginning at 11:00 p.m. on August 3,
1981 “until the present...." Following appellant’s oral reply to
this letter, the agency cancelled the first proposal notice and
issued a second one, dated September 10, 1981, which char-
ges appellant with his purported strike participation begin-
ning at 3:00 p.m. on August 6, 1981. Counsel argues that the
agency improperly considered appellant’s statements in his
response to the first proposed removal notice and that it
should not have (apparently) issued the second proposed
removal notice.
The documentary evidence of record reveals that this ap-
pellant missed his deadline shift on August 6, 1981, and I
find, based on reasoning identical to that discussed above in
the Carlson (ZAU) case, that the charge is sustained and that
there is no harmful error.
L. RODNEY PETERSON
This appellant was scheduled for duty on August 3 and 4,
but did not report on those days. Beginning on August 5,
1981, he was scheduled for annual leave which was to last
until a return date of August 21, 1981. He was fired for miss-
ing work between the dates of August 6 and 8, 1981. The
documentary evidence shows and Mr. Gunter admitted on
appeal that he was on uncancelled annual leave during this
period of time. (TR: Vol. 1, pp. 106, 107) Mr. Gunter stated
in explanation that had appellant shown up for work on
August 3 or4, his leave would have been canceiled. (TR: Vol.
1., pp. 104, 105) Mr. Felton Mitchell, appeilant’s team super-
visor, also testified in support of the agency’s action. He
stated that appellant was aware that in the event of a job ac-
tion his leave would be cancelled, and that appellant advised
him on some unspecified date in July, 1981 that "Ill be
damned if I come in and I’m on leave." (TR: Vol. 6, pp. 5, 6)
—66a—
Mitchell admitted that he did not specifically discuss with ap-
pellant the leave which is at issue in this appeal. (TR: 4)
Once again, inferences can be drawn from the above
evidence concerning appellant’s willingness to work during
the strike. Nevertheless, I find the record to be clear in show-
ing that appellant was on uncancelled annual leave for the
period for which he is charged with striking. I therefore find
that the agency has not established a prima facie case of this
former controller’s participation in the strike, and the strike
charge is not sustained.
PETER PIORKOWSKI
This appellant testified that he was scheduled for duty at
11:00 p.m. on August 3 and at 3:00 p.m. on August 7, 1981,
but that he missed both of these shifts. He offered as the
reason for his absence the fact that his wife was five and one-
half months pregnant and was "undergoing quite a bit of dif-
ficulty with premature labor..." (TR: Vol. 7, p. 118) In
addition to the difficulties ca:ised by his wife’s condition, ap-
pellant stated that he had a four-month old child who re-
quired "quite a bit of work." (TR: 118) Appellant claims to
have missed his shift on August 3 because "I wasn’t aware
that I was to report," and he claims to have intended to report
on August 7 but that he was unable to report on time due to
lute arrival at his house of a baby-sitter. (TR: 110, 123) He
stated that he picketed "quite regularly” after he “learned
that he had been fired" and that he went to the union head-
quarters "quite often to find out any current information."
(TR: 119, 120)
Appellant’s claim that he was unaware of his shift on
August 3 must be evaluated in light of the agency’s policy
that all shifts were posted at least 3 weeks in advance. (TR:
Vol. 1, p. 71) Since appellant was responsible for knowing
his shift and since he admitted that in eleven previous years
—6/a—
he "may" have only missed one previous shift (TR: 123), I
find appellant’s excuse for missing this shift to be not
credible. With respect to appellant’s absence on August 7,
he was responsible for being at work and for hiring whatever
domestic help was necessary to enable him.to fulfill that
responsibility. Accordingly, I do not find appellant’s excuse
of a late baby-sitter to be persuasive. When he did not show
up for his shift, the agency properly considered him to be on
strike. Appellant’s apparent plea of a lack of time to report
to work is dubious in view of his admission that he had
enough time to regularly picket and visit the union head-
quarters. I find, in short, that appellant has not rebutted the
agency's prima facie case, and the agency’s strike charge is
supported and sustained by a preponderance of the
evidence.
KENNETH POPOWITCH
The documentary evidence reflects that this appellant was
assigned to a 3:00 p.m. shift on August 3, a 7:00 a.m. shift on
August 4, and an 11:00 p.m. shift on August 4. He was then
not scheduled until August 8 at 4:00 p.m. By letter dated
August 5, 1981, appellant was advised of his proposed ter-
mination for his absences from August 3 through August 5
(the record reflects that appellant received a copy of this
notice on August 8). His representative argues on appeal
that he was improperly fired before his deadline shift.
The material facts of this case (insofar as ihey relate to the
strike charge) are the same as those described in the Ellis
(ZAU) case, with the exception that this appellant (ap-
parently) received his proposed removal notice prior to the
start of his deadline shift (i.e., the documentary evidence
reveals that appellant was scheduled for and missed three
pre-deadline shifts during the strike, and fails to indicate any
attempt by appellant to return to work for his deadline shift).
— 68a —
Notwithstanding appellant’s apparent receipt of the
proposed termination notice prior to his shift, I find that the
bottom-line conclusion in this case must be the same as that
stated in Ellis. The reason for this finding is that appellant
has made no showing that he relied on his receipt of the
proposed removal notice in not reporting to work, or that he
was aware at the time he received it that he was "locked out.”
He should have therefore reported to work (See Ellis) for his
deadline shift to claim amnesty for his prior strike participa-
tion. I find, in short, that this appellant has not established a
rebuttal defense to the agency’s prima facie case of his strike
participation, and that the strike charge is supported and sus-
tained by a preponderance of the evidence.
WAYNE PRICE
This appellant stated that his wife was in her seventh or
eighth month of pregnancy during the first week of the strike.
He stated that he had to Care for his wife in July of 1981, and
that on August 1, 1981, he went to see a clinical psychologist
because he was "feeling rotten." (TR: Vol. 6, pp. 108-110)
The psychologist (in a statement dated September 2, 1982)
stated that he diagnosed appellant’s condition as "acute
anxiety depressive reaction" and recommended that appel-
lant take two weeks off from work. Appellant testified that
he then called the facility (apparently on August 1) and ad-
vised Mr. Robert Bachman that he was requesting indefinite
sick leave. Mr. Bachman, according to appellant, replied "I
have your request.” (TR: 112) Based on this purported
telephone conversation, appellant "believed" he was on sick
leave, and he did not report for any of his assigned shifts
during the strike. (TR: 113, 118) Appellant Price admitted
on cross-examination that Mr. Bachman was not his super-
visor, and that he did not attempt to contact his own super-
visor to either request leave or to confirm his leave status.
(TR: 116, 120)
—69a—
This appellant made an assumption, based on an am-
biguous telephone conversation with an individual who was
not his supervisor, that he had been granted indefinite sick
leave. This was, given these factual circumstances, a clearly
inappropriate assumption. Appellant was responsible during
this period, no less than any other period, for specifically ob-
taining sick leave. Such specific approval was particularly
necessary here in view of the length of the leave request and
the emergency situation which confronted the agency. I find,
in short, that appellant has not rebutted the agency’s prima
facie case, and that the strike charge is supported and sus-
tained by a preponderance of the evidence.
RUDOLPH RADNOFF
This appellant was fired for his strike activity from August
3 through 10, 1981. He was scheduled for duty on August 3-
5, 1981, but did not report to work and was charged with
AWOL for those days. He then had a combination of regular
days off (RDOs) and annual leave which permitted him to
return to work on August 14, 1981 (his deadline date). (TR:
Vol. 6, p. 59) The only evidence of record which would indi-
cate that this leave was cancelled are the sign-in logs which
are contained in appellant’s appeal file. (TR: Vol. 6, p. 61)
These logs have lines drawn through annual leave notations,
and, In some sections, have supplemental notations of
"AWOL." The sign-in logs made a matter of record by appel-
lant (Appellant’s Hearing Exhibit #16) reflect that appellant
was on uncancelled annual leave for the day of August 8,
1981, and the file copy watch schedule reflects that appellant
was on annual leave following August 5, 1981. The record
reflects no attempt by appellant to report to work for his
August 14 deadline shift, and he was recorded as AWOL on
that date.
—70a—
There is some uncertainty in the record concerning
whether this appellant’s annual leave was cancelled during a
period from August 6 through 13, 1981. In view of the lack
of clarity of this evidence, I find that the agency has not
shown, by a preponderance of the evidence, the cancellation
of this leave. The record does reflect, however, that appel-
lant did not work during three work shifts during the strike,
and that he (apparently) made no attempt to return to work
on August 14, 1981 to claim amnesty for his strike participa-
tion. I therefore adopt the analysis stated in the Popowitch
(ZAU) case and find that the strike charge against this ap-
pellant must be sustained.
LELAND RASMUSSEN
This appellant was scheduled to return to duty, following
his regular day off, on August 6, 1981 at 3:00 p.m. He stated
that he had heard about President Reagan’s statement that
controllers had until 11:00 EDT on August 5, 1981 to report
to work, but that he "couldn’t believe it (the deadline)
appl(ied) to (him) since (he) was not supposed to be there."
(TR: Vol. 7, pp. 90-92) He further stated that a supervisor at
the facility by the name of Tony Cimino advised him that
"somebody is going to call you." (TR: 91) He stated that he
waited at his house for a call, but when no one called, he
called the facility (at about 2:00 p.m. on August 6). (TR: 94)
When this call failed to put him in contact with his super-
visor, he stated that he drove to work, where he was alleged-
ly advised, by some unidentified individual at PATCO union
headquarters, that no one was reporting for their shifts. He
stated that he then believed that there had been a "screw up,”
and he returned home. (TR: 94)
Although this appellant’s testimony would indicate his
contusion about whether he could report to work, he did not
exercise due diligence in attempting to contact the facility to
-jla—
clarify his situation. For most of the period prior to his shift,
he merely waited for the facility to call him, a clearly un-
reasonable expectation in view of the facility’s workload and
the fact that he himself should have exercised enough initia-
tive to find out his own schedule. He then made only a
prefunctory attempt to call his supervisor an hour before his
scheduled shift, and readily accepted the apparent advice of
PATCO that since others were not reporting to work neither
should he. I find, in short that this appellant has not rebutted
the agency’s prima facie case of striking, and that the strike
charge is supported and sustained by a preponderance of the
evidence.
MICHAEL REEDY
This appellant had scheduled shifts on August 3 and 4
which he did not attend and for which he was recorded as
AWOL. His next scheduled shift, which was his deadline
shift, was on August 7 at 7:00 a.m. The proposed removal
notice in his case was issued on August 5, 1981, and it charged
appellant with his strike activity beginning August 3 through
the date of the notice. The AWOL charge cited appellant for
missing an 11:00 p.m. shift on August 5 which he was not
scheduled for. (TR: Vol. 3, pp. 79, 80) Appellant argues that
he should not be removed since he was "locked out" of the
facility prior to his deadline shift. A review of appellant’s
petition of appeal and the certified copy of his return receipt
reflect tha
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.