# Petition for Writ of Certiorari — Anderson v. United States Department of Transportation > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1427%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1988 - **Citation:** 486 U.S. 1026 ## 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 } 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). " 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 ’ With this background in mind, I will briefly look at some Board decisions which are relevant to this issue. The Parker case cited by the agency takes due notice of the congressional history of the Civil Service Reform Act in finding that agen- cy actions should not be reversed "because of technical pro- cedural oversights which have not substantially prejudiced or impaired the employee’s rights." Parker at 492. Following this threshold finding, the Board analyzed whether the ap- pellant before it had shown harmful error concerning the agency’s alleged erroneous application of OPM regulations. This case was followed by a line of other cases which applied the "harmful error" test to alleged agency violations of OPM regulations and/or statutes. See Hockman v. American Bat- tle Monuments Commission, MSPB Docket No. SF07528110757 (July 30, 1982); Messersmith v. General Ser- vices Administration, MSPB Docket No. DC07528010253 (December 2, 1981); Graham v. Postal Service, 2 MSPB 377 (1980); Hunger v. Department of the Interior, 2 MSPB 274 — 88a — (1980). Moreover, the Board has specifically held that it will apply the "harmful error" test to an agency’s purported failure to permit an appellant 7 days to respond to a letter of intent. See Johnson v. Department of the Treasury, MSPB Docket No. DC075209213 (August 27, 1982). The Ratley case (although the analysis contained therein would appear to be at odds with these precedents) is not as clear-cut a precedent for appellants’ proposition (that any reply period of less than 7 days, regardless of the attendant circumstances, warrants reversal of the agency’s action) as appellants would indicate in their argument. In the first place, the Ratley holding must be viewed in context of the factual circumstances of that case. That appellant was only given one day to make her reply to the notice (less time than any appellant in this consolidation), and she was (as indi- cated in the Board’s decision) apparently precluded (as a result of the short notice period) from bringing specific medical evidence before the oral reply official (a situation, as noted infra, unlike the circumstances which were involved in the cases here). Moreover, the Board in Ratley did make a finding that there was a showing of harmful error in the case. Accordingly, it cannot be concluded that the Board in Ratley rejected its previous line of precedents concerning the applicability of harmful error to the violation of a statutory right. Concerning appellants’ apparent argument that the lan- guage of the statute itself makes it clear that Congress in- tended that only a violation of agency regulations should be evaluated under the "harmful error" test, Iam unable to con- clude, as do appellants, that "agency’s procedures" (as quoted supra - from the statute) is synonymous with the phrase “agency’s regulations." A reasonable reading of this statute would instead indicate that should an agency violate, through the application of its procedures in disciplining an — 89a — appellant, a statute or regulation, the appellant must show harmful error for the action to be reversed. I therefore find that this argument does not demonstrate the inapplicability of the harmful error approach to reviewing purported statutory violations. I find, based on a review of the above-referenced Congres- sional intent, the Board’s findings in cases similar to this, and the remainder of the above analysis, that the most reasonable test to apply to appellants’ contention of error in this case is the "harmful error" test. Applying that test to these cases, I first note that the Board has found (as noted in Jones, supra) that the burden is on ap- pellants to establish affirmative defenses by a preponderance of the evidence. The Board has specifically noted that this burden extends to allegations of harmful error. Parker at 492. As referenced above, (See footnotes 12 and 24) appellants were placed on notice concerning the need to provide specific argument concerning individual ap- pellants. Appellants’ counsel has not presented argument (with respect to individua! appellants) concerning how they were harmed by their lack of 7 days to reply to the letter of intent. In view of this lack of a showing of harm, I find that appellants have not established, by a preponderance of the evidence, error in this respect, and the allegation of error must be dismissed.~ SPECIAL SITUATIONS — RIGHT OF REPLY SPRINGFIELD, IL (SPI) No appellant in this consolidated group at this facility had an oral reply. (TR: Vol. 16, pp. 152, 156) The record con- cerning this facility reflects that every controller failed to show up for work, and facility chief Mr. Thomas Glaze tes- tified that as a result of the strike, he personally had to work — 90a — every position in the tower. (TR: Vol. 16, p. 171) He stated that he requested the representative for all of the SPI appel- lants in this consolidated group to contact his clients and have them call the facility to work out a schedule of ap- pearances for the oral replies, but that the representative refused to do this. (TR: 153-155) As a result of the failure of this representative to arrange for his clients to call the facility and work out a schedule of appearances and Mr. Glaze’s busy schedule (which, he testified, left him no time to at- tempt to work out a schedule for the approximately 25 con- trollers who worked at the facility), no orals were held. (TR: 171) Appellants argue on appeal that the agency denied them their right to an oral reply, and that their removals should be reversed on this basis. I find no merit in appellants’ assertion. In the first place, oral replies were not denied at the facility since (as noted in footnote 39) oral replies were held for those individuals who called the facility and worked out a scheduled appearance. In view of the action by all controllers at the facility in fail- ing to report, this requirement (to call the facility to schedule a reply) was reasonable and was not an onerous predicate to the right of reply as appellants apparently assert. In view of the reasonableness of this requirement and appellants’ failure to comply with the requirement, I find no error by the agency in this respect. Moreover, even assuming that there was error, appellants have not shown the harm of the error (under the “harmful error" approach), and I therefore find that this allegation cannot serve as a basis for reversal of any of these removal actions. GREEN BAY (GRB) The documentary evidence for this facility would indicate that no orals were held, but the representative of the in- dividuals within this consolidated group, Mr. Phillip Marbs, —9la— stated that they were held "under protest" (due to the short length of time to prepare for them). (TR: Vol. 10, p. 183) Marbs stated that he asked some general questions of during the oral replies. He stated that he advised the controllers that he was there to listen to their replies, and not to answer ques- tions. (TR: Vol. 16, pp. 141-144) Appellants argue that this policy transformed the oral replies into a "fool’s joke." (TR: Vol. 17, p. 231) Mr. Lowe’s refusal to answer questions during the oral reply process was (arguably) an error in these cases. (See dis- cussion infra regarding the ZAU appellants). Nevertheless,, even assuming error, appellants do not argue, nor have they shown, that they were thereby harmed. Accordingly, | am un- able to find reversible harmful error on this record. ZAU ORAL REPLY OFFICIALS As referenced above, appellants’ counsel also contends that the agency (with respect to the ZAU appellants) erred in its designation of oral reply officials and in the scope of authority given to those officials in their handling of the oral replies. In particular, counsel argues that the ZAU oral reply officials were not employees of the agency, were not "authority figures," had "no training or expertise," and were "strangers to the appellants." (TR: Vol. 17, p. 125) Moreover, he asserts that they had no authority to recommend a final decision in any of the cases, that they informed appellants of this lack of authority at the start of the oral replies, and that they did not answer any questions (during the replies) about the charges. (TR: 123, 124) He argues that the agency’s ac- tions in this respect were in violation of OPM regulation 5 C.F.R. 752.404(c)(2), which states that the agency "shall designate an official to hear the employee’s oral reply who has authority either to make or recommend a final decision on the proposed adverse action..." He further references two amma —92a— decisions issued by the United States Court of Claims (Ricucci v. United States, 432 F.2d 453 (Ct. Cl. 1970) and Ricucci v. United States, 425 F.2d 1252 (Ct. Cl. 1970) in sup- port of his argument. He argues that these cases stand for the proposition that the oral replies were not meant to be "mean- ingless" and "futile ritual(s)," that the oral reply official should have had the competence to have engaged (if neces- sary) in a discussion with the employee making the reply, and that the reply officials should have had the authority to make a meaningful recommendation concerning the final disposi- tion of the case to the deciding official. Chief Gunter testified that he appointed "8 or 9" in- dividuals (he provided the names of 8 officials) to hear the oral replies at the Chicago Center. (TR: Vol. 1, p. 65; Vol. 2, p. 31) He stated that he made an assumption, based upon his "direct" and “indirect” knowledge of the oral reply officials, that they were qualified for this job since they had, at some point in their careers, been involved in the proposing of dis- ciplinary actions, the hearing of oral replies, and/or the taking of final disciplinary actions. He noted, in this respect, that he required his oral reply officials to have been (at some point) a supervisor. (TR: Vol. 2, pp. 32-38) He stated that all of the oral reply officials, with the exception of one, were retired from the FAA, and that these retired individuals were rehired specifically to hear these oral replies. (TR: Vol. 2, p. 34, 37) Gunter further stated that he instructed these officials to listen to what the employees had to say and not to get into a confrontation with them. (TR: Vol. 2, pp. 38, 50) Concerning the authority of these individuals, Gunter stated they could only notate on a form (with - the record shows - clarifying comments added, if necessary) whether they recommended "further facility discussion" of a particular case. (TR: Vol. 2, p. 53) Gunter admitted that although he reviewed the recommendations of the oral reply officials, he reat — 93a — treated all case files the same, whether or not "further facility discussion” was recommended. (TR: Vol. 1, p. 66; Vol. 2, p. 54) Following his review of the oral replies given at the facility, he returned 8 controllers to their jobs. (TR: Vol. 2, p. 55) The record evidence (the file copy summaries of the oral replies and the hearing testimony) reflects that the oral reply officials handled their responsibilities, with slight variations, in a similar manner. They generally advised appellants that they were responsible for listening to and recording the replies and that Mr. Gunter had the final authority in the cases. These officials engaged ir short question and answer sessions with appellants, and some of them made recommen- dations concerning the final disposition of cases in their writ- ten summaries. I wili first address the issue of the standard of proof neces- sary for a determination of whether the agency’s handling of ZAU oral replies constitutes fatal error in these cases (as with the sign-in log argument, counsel requests that all ZAU cases be reversed on this basis - TR: Vol. 17, p. 122). The analysis which I have stated above concerning the 7-day issue is apropos here insofar as requiring appellants’ to establish "harmful error” for the actions to be reversed. I further note that the Board has in the past evaluated allegation of oral reply error under the "harmful error" approach. See Swindell v. Veterans Administration, MSPB Docket No. N Y07528110114 (June 14, 1982). I therefore find that a "harmful error” analysis must be used in evaluating the al- legations of error made here. In these cases, the agency arguably violated the provisions of 5 C.F.R. 752.404(c)(2) (that the oral reply officials should have authority to make a final decision or recommend a final decision) since the weight of the ZAU oral reply recommen- — 94a — dations must be considered as questionable in light of Mr. Gunter’s testimony that he considered all files in the same manner. Moreover, the Ricucci cases do hold, as appellant asserts, that the oral reply official_must have authority beyond merely recording the reply, that he must have suffi- cient knowledge of the action to engage in some reasonable "give-and-take discussion" of the case with the employee, and that his recommendation must carry some degree of weight in the deciding official’s consideration of the case. Notwithstanding these apparent errors, I do not find that any harm inured to any ZAU appellant based on these replies since appellants have failed to show, by a preponderance of the evidence, that the agency might have reached a different result than it did had other oral reply of- ficials (more in line with the prerequisites stated by appel- lants) been appointed to hear the replies. One need look no further than to examine the case files for all the ZAU appel- lants. Almost without exception, all appellants merely rested on the record and refused to make any substantive comments on the charges against them.” In view of this record, appel- lants have not met their burden of showing that had another official been present (or had the oral replies been handled differently) the final agency results might have been dif- ferent. In making the above finding, I note that the Court of Claims (the same court which five years earlier decided the Ricucct cases) evaluated an employee allegation of error (under a "harmful error" approach) when the employee had "no intention of discussing factual issues" (at the oral reply) and engaged in a "cat-and-mouse game" with the oral reply official. The court found, notwithstanding the inadequacy of the oral reply official’s qualifications to hear the reply, that any error was "harmless" in view of appellant’s correspond- ing silence. It stated (in a finding most appropriate to the cir- teenie —95a— cumstances in these cases) that "deficiencies in mere ritual should not by themselves trip up an agency in an adverse ac- tion if the employee gets the substance of what is realistic to expect in the circumstances." Peden v. United States, 512 F.2d 1099, 1102 (Ct. Cl. 1975). In short, I find no harmful error here, and appellants’ allegation is dismissed. SUSPENSION DURING NOTICE PERIOD This issue, which appellants raised for the first time in their March 4, 1982 statement of facts and issues, is not an affirmative defense to the removal actions since appellants do not assert through this argument that the removal actions are defective. Instead, it constitutes an independently ap- pealable action under 5 U.S.C. Chapter 754 The filing requirements for appeals to the Board are con- tained in the Board’s regulations at 5 C.F.R. 1201.22 and 24. These regulations require an appellant to file, within 20 days of the effective date of the action,” a petition in which he states the nature of the action appealed, the effective date of the action appealed, and a statement of the reasons for his belief that the action is wrong. It is further incumbent upon appellant to establish, by a preponderance of the evidence, the Board has jurisdiction over his appeal. Spiegel v. Depart- ment of the Army, MSPB Docket No. N Y075280109005 (May 4, 1981). In this consolidated group of cases, these prerequisites have not been met. No appellant within this consolidated group has filed an appeal from the alleged suspension ac- tions in which he states the reasons for his appeal and the date of the action.” Instead, counsel representing appellants on other appealable actions had, in response to a Board order which directed him to provide the facts and issues which he will argue on appeal of those actions, submitted ar- gument by which he hopes, through a bootstrapping method, — 96a — to add new appeals to the old appeals.” I find no authority for this proposition and conclude that these alleged suspen- sions are not properly before the Board for adjudication. ”’ EFFICIENCY OF THE SERVICE An adverse action may, by statute, only be taken "for such cause as will promote the efficiency of the service." 5 U.S.C. 7513(a). The Board has held that disciplinary actions based upon unauthorized absences are founded upon proper cause since such absences "by their very nature disrupt the efficien- cy of the service." Desiderio v. Department of the Navy, 4 MSPB 171 (1980). In Schapansky, the Board held that ad- verse actions based upon the prohibition against striking stated in 5 U.S.C. 7311 promote the efficiency of the service. In view of these Board holdings and the obvious disruption to the agency’s mission which was caused by the action of the striking air traffic controllers, I find that the disciplinary ac- tions here are founded upon proper cause. APPROPRIATENESS OF THE DISCIPLINARY PENALTY In the case of Douglas v. Veterans Administration, MSPB Docket No. AT075299006 (April 10, 1981), the Board held it may mitigate (under certain circumstances) an agency’s choice of disciplinary penalty. Citing previous Board prece- dents established in Special Counsel v. Dukes MSPB Docket No. HQ12060020 (October 29, 1981) (30-day minimum suspension penalty under the Hatch Act - 5 U.S.C. 7324) and Woody v. General Services Administration, MSPB Docket No. SF07528110028 (June 2, 1981) (one-month minimum penal- ty under 31 U.S.C. 638a(c)(2) for the misuse of a government vehicle), the Board held in Schapansky that "this rule (mitigation) does not apply if the statute under which the employee is removed imposes a mandatory minimum penal- ty." —97a— 5 U.S.C. 7311 provides that an employee may not "hold" a position in the Government of the United States if he par- ticipates in a strike against it. This statute can be read as man- dating the removal from the service of a feceral employee who is found to have participated in a strike against the Government of the United States. The reasonableness of this interpretation is illustrated by a recent decision of the United States Court of Appeals for the Ninth Circuit, which held that an agency could not be required (based on a mitiga- tion theory) to return to service an employee who had been removed under 5 U.S.C. 7311 for participation in a strike against the Government of the United States. American Pos- tal Workers v. U. S. Postal Service, 682 F.2d 1280, 1285 (9th Cir. 1982). I find, in short, no basis for accepting appellants’ arguments that the penalty in these cases should be mitigated, and I conclude that the agency properly deter- mined, for each appellant within the consolidated group who participated in the strike,” that removal was the proper dis- ciplinary penalty to impose. DECISION The agency actions taken against appellants Larry Eden, Jordan Hess, Jerome Iwanski, Robert, H. Miller, L. Rodney Peterson, William Siergey, and Edward Stevens are reversed. The agency is hereby directed to cancel the removal actions taken against these appellants and to furnish evidence of compliance to the Board’s Chicago Regional Of- fice within ten (10) calendar days after this decision becomes final. Any party seeking enforcement of a final decision of the Board may file a petition for enforcement with the regional office that rendered the initial decision. Such petition should be directed to the Regional Director and must comply with the requirements of 5 C.F.R. 1201.181(d). — 98a — The adverse actions taken against the other appellants within this consolidated group are sustained. This decision is an initial decision and will become a final decision of the Merit Systems Protection Board on February 22, 1983, unless a petition for review is filed with the Board or the Board reopens the case on its own motion. Any party to this appeal or the Director of the Office of Personnel Management may file a petition for review of this decision with the Merit Systems Protection Board. The peti- tion must identify specifically the exception taken to this decision, cite the basis for the exception, and refer to ap- plicable laws, rules, or regulations. The petition for review must be filed with the Secretary to the Merit Systems Protection Board, 1120 Vermont Avenue, N.W., Washington, D.C. 20419 no later than thirty-five (35) calendar days after the issuance of the initial decision, cite the basis for the exception, and refer to applicable laws, rules, or regulations. The Board may grant a petition for review when a party submits written argument and supporting documentation which tend to show that: (1) New and material evidence is available that, despite due diligence, was not available when the record was closed; or (2) The decision of the presiding official is based on an erroneous interpretation of statute or regulation. Pursuant to 5 U.S.C. Section 7703(b)(1), (as modified by Section 127 of the Federal Court Improvement Act of 1982, to be codified at 28 U.S.C. Section 1295(a)(9)) the appellant has the right to seek judicial review of the Board’s final decision on this appeal. A petition requesting such review ; a 3 3 3 24 »4 —99a— must be filed with the U.S. Court of Appeals for the Federal Circuit, 717 Madison Place, N.W., Washington, D. C. 20005, no-later than 30 days after appellant’s receipt of the Board’s final order or decision. For the Board Stephen E. Manrose Presiding Official — 100a— —10la— FOOTNOTES ' The specific dates on which appellants were charged with AWOL varies. . By order dated May 28, 1982, the Board took official notice of the existence of a nationwide strike by PATCO from the period August 3 through 6, 1982. Ketchem v. Depart- ment of Transportation, MSPB Docket No. DA075281F0713 (May 28, 1982). The Board stated that the FAA only had to prove the existence of a strike for those controllers whose return-to-work dates were on "dates subsequent" to August 6, 1981 Id. at 9. It later denied a "motion for clarification" by appellants’ counsel who petitioned the Board for a ruling on whether its order in Ketchem was limited to controllers whose shifts began before 8:00 a.m. on August 6, 1981. Ketchem v. Department of Transportation, MSPB Docket No. DA075281F0713 (November 23, 1982). . Many, but not all, of the controllers in this consolidation were charged with striking not only on their deadline dates but also on August 3, 4, and S (for shifts starting before 11:00 EDT), 1981. * Record evidence reveals that there was picketing ac- tivity at 26 out of the 38 air traffic facilities in this con- solidated group. (The record is not clear, in the case of some facilities, whether or not picketing occurred, but the record does show that some controllers, who were einployed at facilities where there was no picketing, picketed at other facilities within this consolidated group where there was picketing.) The record further shows that picketers at many of these sites carried signs indicating they were on strike, in- cluding some signs which directly stated "PATCO on strike." This picketing activity lasted at most facilities past the first week of the strike, and at some facilities it lasted until Oc- tober and November, 1981. The last picketing activity indi- iain ecceiiaielll — 102a— cated from this record was on December 11, 1981, at the Chicago Center (ZAU). (TR: Vol. 1, p. 60) : Appellants’ counsel identified appellant Thomas Toep- fer (ZAU), who had a scheduled reporting time of Septem- ber 7, 1981, as the individual with the latest deadline date in this consolidated group. (TR: Vol. 17, p. 173) © GENOT 128 set the policy of the agency concerning controllers who missed their deadline shifts. It advised facility chiefs that these controllers should be placed in a temporary non-duty status and be issued a proposed removal notice. Counsel for both parties in this case agreed to the use of the term "locked out" as meaning that controllers who had not reported for their deadline shifts were not permitted to return to work. (TR: Vol. 2, p. 27; Appellant’s Hearing Ex. 29 - stipulated testimony) : Notwithstanding the large number of appellants in this consolidated group, the appellants in this consolidation com- prise only a small percentage of the total number of air traf- fic controllers who were removed, on a nationwide basis, for strike participation (more than 11,000). It is reasonable to assume that some of these appellants had later deadline dates than the last deadline date which is a matter of record in this consolidation. * Counsel argues that picketing activity by controllers after their deadline dates is not probative evidence of their strike participation since they were "locked out" of their facilities. Under the "objective test" I adopt infra for deter- mining whether employees could be on strike if they were unable to return to duty, I find that counsel’s argument is well taken, and that picketing activities, for those controllers who were already "locked out" of their facilities, should not be considered as material evidence in support of their per- sonal participation in the strike. At the same time, however, — 103a— the courts have held - in a long line of cases dealing with the issue of whether an individual’s actions are part of a "con- certed activity" under the National Labor Relations Board Act - that individual actions, particularly if they are designed to have an effect on and are intended to enlist the support of other employees (a circumstance clearly in evidence here in view of the large number of individuals who regularly con- gregated in front of many of the air traffic facilities in this consolidated group), can be deemed to be part of a "con- certed activity." Krispy Kreme Doughnut Corp. v. N.L.R.B., 635 F.2d 304, 307 (4th Cir. 1980); Pelton Casteel, Inc. v. N.L.R.B., 627 F.2d 23, 28 (7th Cir. 1980); Anchortank, Inc. v. N.L.R.B.,618 F.2d 1153, 1161 (Sth Cir. 1980). I therefore find that the picketing by a number of controllers, some of whom were already “locked out," can properly be described as "con- certed activity" in support of the strike and as probative evidence concerning the strike activity of those controllers who were not "locked out" at that point. I further note paren- thetically that the actions of the picketers at the FAA facilities in this consolidated group, even after most or all of their deadline dates had passed, were in furtherance of the strike activities of all other controllers, on a nationwide basis, who had not yet reported for their deadline shifts. As such, the picketing activity which occurred here provides addition- al evidence of the continuing nature of the nationwide strike, even beyond the deadline shifts for all the controllers within this consolidated group. . Appellant cites, as one such statement, an August 5, 1981 statement by Secretary of Transportation Drew Lewis that "as of 11 o’clock today, the strike is over." (Quoted in United States v. PATCO, 524 F. Supp. 160, 164 (D.D.C. 1981)). I note parenthetically that different agency officials made different statements concerning the end of the strike. For example, the Administrator of the FAA, J. Lynn Helms, — 104a— stated on August S that "...the strike continues...." (5:30 p.m. Briefing to the Press, as referenced at page 36 of appellant’s "Evidentiary Appendix.") 10 | make no findings, at this point, on the legitimacy of appellants’ reasons for the withholding of their services. That issue must be evaluated on review of appellants’ various explanations for their absences. Where no explanation is provided, the agency may, as noted infra, prove appellants’ strike participation by appellants’ failure to rebut a prima facie showing that they were on strike. '! Based upon the inability of this facility chief to appear at the hearing, appellants’ counsel moved that all of the Meigs cases be summarily reversed due to the lack of "foun- dation" for pertinent hearing testimony. (TR: Vol. 15, pp. 60, 61) For reasons stated in the record, I denied that motion. . Appellant’s amended statement of facts and issues, received by the Board on October 20, 1982, provided a general statement of the nature of the defenses which would be presented by individual appellants on appeal. This Board advised counsel (TR: Vol. 17, p. 210) to provide specific ar- gument for those cases that he wished to have addressed by the Board in its decision (beyond the general discussion ap- plicable to all other appellants). ss Appellants’ counsel introduced into the record, as an addendum to his oral closing argument, a "check list" of ap- pellants for whom (allegedly) two sets of sign-in logs exist. This "check list" would, according to counsel, indicate that approximately 100 out of the more than 200 ZAU appellants in the consolidated group have "doctored" sign-in logs. 4 The agency requested that Mr. Robert Miller, person- nel management specialist, testify concerning the apparent changes in the logs, but I sustained a strenuous objection — 10Sa— posed by appellants’ counsel to his testimony based on my previous order that all witnesses (other than appellants) be sequestered during the hearing and Mr. Miller’s presence during the hearing as a technical advisor (even after it be- came clear that his testimony concerning these logs might be needed). (TR: Vol. 6, pp. 79, 80, 83) I also sustained appellants’ objections to permitting the record to remain open for additional agency witnesses (other than Mr. Miller) to testify concerning this issue in view of the agency’s failure (despite ample notice) to produce these witnesses during the portion of the consolidated hearing in which the Chicago Center (ZAU) cases were heard. Appellants themselves produced absolutely no evidence concerning these two sets of sign-in logs. > The arguments and evidence for those appellants who I find did not withdraw their services from the agency during the strike are also discussed in the following portion of this decision. 1© This case is distinguishable from the Anderson (ZAU) case in that this appellant, in contrast to appellant Anderson, was charged solely for shifts missed after he was locked out of the facility. !” This finding is consistent with the Board’s statement (made in its second Ketchum order - dated November 23, 1982) that the agency’s burden of proof on the strike charge ‘includes proof of authorized absence which in turn requires specific proof that the agency would have allowed an in- dividual appellant to return to work in cases where that point is in issue." 'S GENOT 127 advised facility chiefs that controllers who failed to report for duty on their first regularly- scheduled shifts after 11:00 EDT on August 5, 1981 should be issued termination notices. The GENOT further stated — 106a— that facility chiefs were "encouraged" to pass this informa- tion along to "FAA controllers." MWC facility chief Joseph Jasper testified that he "yersonally" did not send this GENOT to the striking controllers and that he "wasn’t sure” if it was sent to them with the other "various messages.” (TR: Vol. 10, p. 61) '? Much evidence was elicited on appeal concerning the failure of facility chiefs in this consolidation to distribute copies of GENOT 127 to the striking controllers, and coun- sel argues that the agency was "obligat(ed)" to pass the con- tents of the memorandum along to the striking controllers. (TR: Vol. 17, p. 99) While, as noted in my discussion of the Streitenberger (MWC) case, it would have been desirable for the agency to have so distributed the memorandum, counsel’s argument ignores the extra time it would have taken the agency to contact the striking controllers in this consolidation (many of whom could not be reached), the critical manpower shortage of the agency and the overriding need to safely guide the nation’s airplanes with what person- nel was available, and the essential responsibility of each controller to determine for himself what his own schedule was and when he was expected to report for duty. For these reasons, I am unable to find substantial merit with this claim, or find that it constitutes a basis for reversing any agency ac- tion in this consolidation. °0 Mr. Stoike’s testimony concerning the point that appel- lant would have been locked out is somewhat confusing since he responded affirmatively to a leading question which indi- cated that the lock-out time was the missing of the deadline shift and later responded affirmatively to another leading question which indicated that the mailing of the proposal notice was the controlling time in determining the lock-out. (TR: 134, 135) Since a reading of this section of the transcript clearly shows that the witness intended that the proposal ~~ ee temas ee —107a— notice would only be mailed after a controller actually missed his deadline shift, I find that a reasonable interpreta- tion of this testimony establishes that the missing of the deadline shift, not the mailing time of the proposal notice, is the controlling time insofar as determining whether an in- dividual controller was locked out of the facility. "I The pertinent watch schedule reflects that not only was this appellant’s annual leave for the period of the strike can- celled, but that one day of annual leave for August 2 was can- celled. While this action was arguably a violation of the agency’s collective bargaining agreement, I find this fact has no relevance in this case since I have considered the agency’s actions only as they relate to the time period of the strike. Should appellant have decided to contest the arguably im- proper cancellation of his leave on August 2, his recourse (under Article 7 of the agreement) was through the grievance process. ” Appellant introduced into the record a November 3, 1981 court order with back-up documents (including a transcript of proceedings on August 7, an August 6 affidavit, and other motions and responses thereto) which indicate his involvement with litigation activities during the first week of the strike. Even assuming that these litigation activities would have precluded appellant from appearing at facility for his deadline shift, there is no evidence that appellant called the facility to request court leave or that he otherwise notified them, in a proper manner, of his absence. Under these circumstances, I find that these litigation activities can- not serve to rebut the prima facie case. (See Holic (ZAL ) case) 23 , It should be noted (in the event that any of the appe!- lants in this consolidated group - against whom the AW charge has been sustained - have been incorrectly chambec — 108a— with AWOL for a portion of the time cited in their proposal notices) that a finding that they were correctly charged with AWOL for any portion of the time cited in their notices is sufficient to sustain the AWOL charge. *4 In view of the general nature of appellant counsel’s statement of facts and issues, insofar as it concerned the in- dividual defenses of appellants, | advised counsel (as referenced in footnote 12) that he would be expected to specifically argue, in his closing statement, the individual defenses of the different appeilants. No such requirement was specified concerning the general affirmative defenses that appellants propound. The list of affirmative defenses discussed in this decision, therefore, is comprised of all such defenses which appellant has specifically advanced on ap- peal (e.g., a general statement - contained in appellants’ final statement of facts and issues - that "appellants’ removals con- stituted a prohibited personnel practice” is not discussed due to the lack of specificity of the argument). ” Typical proposed removal notices within this con- solidated group were based on guidance provided on GENOT 129 (August 5, 1981), and state, in pertinent part, that an appellant’s purported strike participation provides "reasonable cause to believe that (he) ha(s) committed a crime for which a sentence of imprisonment can be im- posed...," that (for this reason) appellant’s reply, if any, should be made within a "7-day limit," and that a decision on the proposed action would thereafter be made "as soon as possible.” in practice, many appellants were removed well within a 30-day period from their receipt of the initial letter of intent. 26 ‘As discussed above, the agency failed to establish a prima facie case of participation in the strike against 7 ap- pellants within this consolidated group. For those appellants, —————————ew — 109a— ihe agency’s invocation of the "crime provision” was arguab- ly improper. I will not address that issue in this decision in view of my determination that the removal actions against those appellants must, in any event, be reversed. y ed Approximately 1,200 controllers returned to work under the President’s amnesty program (as implemented by the agency). See PATCO v. United States Department of Transportation, 529 F. Supp. 614, 615 (D. Minn. 1981). *S For example, FAA Administrator Helms stated, in a press briefing given at 10:30 a.m. on August 4, 1981, that ‘those people who have not reported for work...will receive notice of termination..." and Secretary of Transportation Drew Lewis stated at the same briefing that "whatever legal steps have to be taken to cause this termination, we are prepared to go through that." (Appellants’ "Evidentiary Ap- pendix", pp. 29, 31) *? Administrator Helms stated, during his national deposition testimony (at TR: 38, 40, 53, and 112), that he was not directed by President Reagan to forward termination notices to controllers and that he himself made the decision that they should be terminated. (See relevant portions of Appellants’ Group Exhibit 2, as contained under tab 49 of the master file). © In view of the authority of local officials to make in- dividual determinations in individual cases, as noted infra, I find that there was no improper usurpation of their authority. Concerning appellants’ apparent contention that deciding officials should have determined, within a broad range of penalties - ranging (presumably) from a short-suspension to removal, what penalty they felt was appropriate when a find- ing was made that an employee was on strike, I find merit in the agency’s policy of treating these cases in a uniform man- ner. Certainiy it cannot be reasonably argued that to have —110a— multitudinous penalties imposed for identical offenses by the numerous deciding officials involved in these cases would constitute an equitable and fair treatment of this mat- ter. No doubt appellants’ claim of "disparate treatment’ would be viewed in a different light under these circumstan- ces. Secondly, I note that not one of the proposing or decid- ing officials in this consolidated group testified that he took the actions he did against his will or that he disagreed with the determinations made here. Finally, it is quite arguable, and I do find infra, that removal of these employees was the most reasonable penalty for their offenses. As the head of his agency, Administrator Helms made a proper determina- tion concerning the penalty that should be imposed, and he communicated this policy determination via the norma! means (GENOT) for transmittal of such determinations. >! These documents, as well as the various GENOTs which have been referenced in this decision, are contained within the previously-referenced "evidentiary appendix’ submitted by appellant on appeal. Portions of this appendix may be found under tabs 40 and 49 of the master file (referenced in Appendix C of this decision) for this con- solidated group. * Tt need hardly be observed that any time a President exercises his pardon authority it could conceivably "strip" another duly-empowered official of his authority, such as oc- curred when appropriate law enforcement officials were precluded from prosecuting President Nixon following the issuance of President Ford’s pardon or when they were precluded from prosecuting draft evaders pardoned by President Carter. 3 ' . Although appellants argue on appeal that their peti- tions of appeal should not be used for this purpose, I find that petitions of appeal (while they do not constitute —llla— evidence) may be considered insofar as declarations against interest are made therein. See Pelham v. Department of Treasury, MSPB Order No. DA075209140 (December 4, 1981). 4 The agency argues on appeal that many of the appel- lants in this facility waived their right to claim that they had iess than 7 days to reply to the proposed notice since they did not specifically request an extension of time to make an oral reply (as they did, in a form letter, for purposes of their writ- ten replies), and because at many of the facilities in this con- solidation, the PATCO representatives mutually agreed with the facility chief on the dates of the orals for particular ap- pellants. Although the record evidence presents an arguable basis for the agency’s waiver claim, I do not make specific findings on this issue in view of my finding infra that those appellants who replied with 7 days have failed to make any showing of harmful error. >> It should be noted that even where I have found that employees were given less than 7 days to give an oral reply to the letter of intent, this record indicates that many of these employees were not denied a 7-day reply time for the sub- mission of a written reply. This fact, as well as other factors which are noted infra, is relevant to the degree of harm suf- fered as a result of the agency’s actions - assuming that the harmful error standard may be applied. © In the pertinent Senate committee summary of the Civil Service Reform Act (Senate Bill 2640), committee chairman Ribicoff noted that "Henceforth (following Bill 2640), the Board and the courts should only reverse agency actions under the new procedures where the employée’s rights under this title have been substantially impaired." He further stated that "...the bill changes the applicable stand- ards to avoid unnecessary reversals of agency actions be- —112a— cause of technical procedural oversights...."S. Rep. No. 969, 95th Cong., 2d Sess. 51, 54, reprinted in 1978. U.S. CODE CONG. & AD. NEWS 2773, 2776. The relevant House report states, in pertinent part, "...in an appeal, the decision of the agency must be sustained by MSPB unless the employee shows an error in procedure which substantially impairs his or her rights...." H. R. Rep. No. 1403, 95th Cong., 2d Sess. 108 (1978). In making these determinations, Con- gress took note of the testimony before congressional com- mittees that the former agency in charge of handling government appeals often reversed adverse actions based on non-substantial procedural grounds. See e.g., Civil Service Reform: Hearings before the House Committee on Post Office and Civil Service on H. R. 11280, 95th Cong., 2d Sess. 31, 122- 123 (1978). I note parenthetically that although counsel ar- gues on appeal that the Senate version of the Act was later defeated by vote in Congress, the record merely reflects that the acting conference committee, which resolved the dif- ferences between the House and Senate versions of the Act, combined the findings and purposes of both bills. See H.R. Rep. No. 1717, 95th Cong., 2d Sess. 127 (Comm. of Con- ference), reprinted in 1978 U. S. CODE CONG. & AD. NEWS 2860. In any event, the important point here is that both Houses of Congress stated their intent to not permit (on mere technical grounds) the reversal of substantively valid adverse actions. *7 Further evidence of the intent of Congress in this respect can be seen from a review of pertinent congressional comments concerning the genesis of, and the need for, reform of the old civil service system. The Senate Commit- tee on Governmental Affairs, for example, spoke of the need to “allow civil servants to be able to be hired and fired more easily..." S. Rep. No. 969, 95th Cong., 2d Sess., reprinted in 1978 U. S. CODE CONG. & AD NEWS 2726. The House —113a— Committee on Post Office and Civil Service stated that "One of the major purposes of (this bill) is to make it easier to remove employees for misconduct, inefficiency, and incom- petence." H. R. Rep. No. 1403, 95th Cong., 2d Sess. 108 (1978). 8 I note parenthetically that in the great majority of cases within this consolidated group, appellants merely stood mute on the record and failed to make any substantative comments on the proposed actions. In view of this failure to comment on the proposed actions at the oral reply, the simplicity of the charges in these cases, and the seemingly short preparation time which would have been necessary for appellants to explain why they failed to appear for their dead- line shifts, I have been unable to discern, within this con- solidated group, that any appellant was harmed by the failure to have 7 full days to respond to the letter of intent. *” Some employees (who called the facility) did have oral responses. (TR: Vol. 16, p. 156) * The fact that substantive comments made at the oral reply were considered by Mr. Gunter is demonstrated by the fact that 8 controllers were restored to work following their orals. *! In view of counsel’s failure to further define any allega- tions of harmful error which may have occurred in individual cases, [am unable to make any further findings on this issue. 2 5 U.S.C. 7512 defines a suspension appealable to the Board as one which is more than 14 days in length. For pur- poses of this consolidation, appellants’ counsel admits, in his final statement of facts and issues, that some appellants were suspended for 14 days or less, but he has failed to identify who those appellants are. Although he asserts that all appel- lants (even those unidentified individuals who were —1l4a— suspended for less than 14 days) should have their appeals entertained by the Board under - if necessary - a pendent jurisdiction rationale, I find no legal basis for this argument and conclude, based on the unequivocal language of the relevant statute, that those appellants who were placed in a non-duty status for 14 days or less prior to their termination have no possible right of appeal to the Board from that ac- tion. 43 Under a series of Board decisions, the principle one being Alonzo v. Department of the Air Force, 4 MSPB 262 (1980), an appeal filed outside the 20-day time limit may be accepted (particularly if the employee was not - as is the case here - notified of any possible right of appeal from the ac- tion) if the employee exercises due diligence from the time he discovers his right to appeal. Since appellants’ counsel was well aware of this possible right of appeal no later than March 4, 1981, appellants who wished to pursue an appeal right from the "suspension" actions should arguably have ex- ercised due diligence from that time forward and properly filed an appeal. “4 The importance of the requirement for appellants to notate the dates of the alleged suspension actions is clearly apparent from his record since those appellants who were placed in a non-duty status for 14 days or less have no right of appeal to the Board. In view of appellants’ failure to specify such information, it is arguable that, for this reason alone, they have failed to fulfill their burden. —11Sa— j UNITED STATES OF AMERICA : MERIT SYSTEMS PROTECTION BOARD CHARLES F. BEHENSKY, JR., et al.,! appellant, v. DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION, agency. DOCKET NUMBER CH075281F0979 OPINION AND ORDER The appellants have petitioned for review of the initial decision dated February 15, 1983, sustaining their removal from the positions of Air Traffic Control Specialist at the Chicago Air Traffic Control Center in Aurora, Illinois (ZAU). The Federal Aviation Administration based its removal actions on charges of participating in a strike against the United States Government in violation of S U.S.C. §7311 and 18 U.S.C. § 1918 and unauthorized absence (AWOL). The petition for review presents a significant problem concerning the probative value of the agency’s documentary evidence introduced at the consolidated hearing to sustain the removal of the seventy-two ZAU controllers. The appel- lants argue that the presiding official erred by according credibility to the agency’s documents, despite the appellants’ substantial impeachment of their reliability, and that all 1) The appellants listed in Appendix A were all formerly employed at the Chicago Center and represented by the same counsel. Their cases were consolidated with appeals from other FAA facilities within the Chicago Regional Office’s jurisdiction. Appeals originating from facilities other than the Chicago Center will be disposed of in a separate Opinion and Order. = —1l6a— ZAU cases should be reversed on the grounds that the agen- cy failed to prove each appellant’s strike participation by a preponderance of credible evidence. Petition for Review at 19-22. The agency argues that the documentation contained in each individual appeal was sufficient, when considered with the testimony presented by the agency, to support each removal, and that the presiding official was correct in accord- ing the agency’s documents credibility. The consolidation in this case consisted of 451 controllers that were employed at 38 agency facilities in the jurisdiction of the Board’s Chicago Regional Office and represented by the law firm of Leighton, Conklin, Lemov, Jacobs & Buck- ley. The agency’s case in chief primarily consisted of intro- ducing the adverse action file for each individual into evidence and the testimony of facility chief George H. Gunter concerning general issues such as the existence of picketers, length of the strike, explanation of records, estab- lishment of deadline shifts, and the employee reply process. More importantly, Gunter could not testify to the facts con- cerning each individual’s participation in the strike based on personal knowledge and instead had to rely on the contents of each adverse action file as a contemporaneous business record of the events. See, e.g., Transcript (TR.) I at 64, TR. III at 87, 101-102. In order to expedite the proceedings by eliminating repetitious testimony from Gunter regarding the contents of the files, the parties stipulated to the contents, but not the accuracy of the adverse action files. TR. I at 79- 81. In most instances the agency did not present additional evidence bearing on the issue of an individual’s participation in the strike. See, e.g., TR. I, p. 96. Therefore, the contents of the files in this case are central to the agency’s ability to sustain the burden of proving an individual’s strike participa- tion under Schapansky v. Department of Transportation, MSPB Docket No. DA075281F1130 (October 28, 1982). —117a— Three documents in each file are of central importance to proving strike participation and AWOL. They are the watch schedules, personnel sign-in logs, and time and attendance records (T&A records). Gunter testified that he relied on these records in making the determination of whether or not an individual was a striker. TR. I at 64-66, 74. The watch schedules were the first documents generated, being prepared a minimum of three weeks in advance. TR. I at 71- 72. A portion of the schedule for the alleged period of strike participation and AWOL was placed in each employee’s ad- verse action file. See Skeleton Files at Tab 5. For each work area at the facility, supervisors would write in names of as- signed employees on personnel sign-in logs the night or day before a shift so employees could indicate their presence at the shift assigned to them according to the watch schedules. TR. [ at 100. Ordinarily, T&A records were compiled at a later date for pay purposes based on the watch schedules and sign-in logs. TR. I at 64, 85. Since the watch schedule was the only document that indicated a work assignment, it was the only document at the facility from which a supervisor could verify that an absent employee was assigned to a duty shift. TR. I at 87. : Gunter admitted under cross-examination that he did not verify the accuracy of the information contained in the ad- verse action files, TR. II] at 76, but he later contradicted him- self concerning verification. TR II at 78. He also admitted that inexperienced clerks could have made mistakes in read- ing watch schedules, TR. II at 89, since the normal agency procedure in filling out personnel logs was not followed due to the unusually high absentee rate. TR. I at 112-114 and TR. IIf at 111-112. Appellants discovered during the course of the hearing numerous alterations and inconsistencies in the agency’s documentation. See, e.g., TR. I at 101-120; TR. VI at 86. Gunter testified that personnel clerks filled in names —118a— on sign-in logs to reflect absent controllers during the strike period after the fact. TR. III at 111-112. He had no direct knowledge of how the alterations were accomplished. TR. Vi at 81. ~ The agency admitted through counsel that the agency had altered the logs to reflect actual absenteeism. TR. VI at 81. Discussion concerning alterations of documents by the agen- cy then focused upon the personnel sign-in logs. Appellants objected to the authenticity of the logs in the adverse action files and requested that they be provided with copies of the originals for August 3 through 8, 1981. TR. III at 116-118. The documents produced by the agency were admitted into evidence as Appellants’ Exhibit 16. TR. IV at 3-4. (There are two Volume IVs, please refer to Volume IV dated Novem- ber 4, 1982 beginning at 8:49 a.m.) Paradoxically, the agen- cy never conceded the authenticity of the sign-in logs admitted as Appellants’ Exhibit 16. TR. IV at 85. The presid- ing official appreciated the import of appellants’ attack on the reliability of the agency’s documentation. He requested that the agency introduce additional evidence regarding the alterations and the reasons for making them in order to rehabilitate the documentary evidence. TR. VI at 82, 88. The agency then offered to call a Mr. Miller. The appellants strenuously objected to Mr. Miller being called as a witness as he had not been sequestered during testimony concern- ing the logs. TR. VI at 80. The presiding official upheld the appellants’ objection to Mr. Miller, but the agency failed to offer any other testimony in rebuttal even though the presid- ing official gave it the opportunity to do so. TR. VI at 89. - 2) Gunter contradicted himself a second time when he was asked if he knew of anyone at the facility who had changed the documentation in order to support the removals. Compare TR. I at 100 with 113-114. —119a— We conclude that the presiding official did not err in ad- mitting the agency’s attendance and pay records into evidence. Despite the fact that the records are in some in- stances incomplete, inconsistent, and contain aiterations 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. See United States v. Foster, 711 F.2d 871, 882 (9th Cir. 1983); United States v. McPartland, 595 F.2d 1321, 1348-1349 (10th Cir. 1979); Peter Kewit Sons Co. v. Summit Construction Co., 422 F.2d 242, 268 (8th Cir. 1969). However, as our decision in Borninkhof v. Department of Justice, 5 MSPB 150 (1981) sug- gests, what probative value to ascribe the admitted docu- ments is a question to be answered by analyzing their quality. The facet of quality we are scrutinizing in this case is reliability. Reliability may be found by examining the cir- cumstances of the document’s creation to see if there is an inherent probability of trustworthiness. Uitts v. General Motors Corp., 411 F. Supp. 1380, 1382 (E.D. Pa. 1974) aff'd, $13 F.2d 626 (3rd Cir. 1975). As the trier of fact, the Board has broad discretion in making this determination. See also Crompton-Richmond Co., Inc. v. Briggs, 560 F.2d 1195, 1201 n.12 (Sth Cir. 1977); United States v. Evan, 572 F.2d 455, 490 (Sth Cir. 1978), cert. denied, 439 U.S. 870 (1978). In Borninkhof, supra, at 156-157 we listed eight factors to be considered in assessing the reliability of written hearsay. We add that the extent of the identifying witness’ personal knowledge, if any, of the records’ preparation should be con- sidered. Calhoun v. Baylor, 646 F.2d 1158, 1162 (6th Cir. 1981); United States v. Rosenstein, 474 F.2d 705, 710 (2nd Cir. 1973); United States v. Page, 544 F.2d 982, 986-987 (8th Cir. 1976). Also to be considered is when the documents were prepared, since reasonably contemporaneous entries or — 120a— documents help to insure reliability, e.g., United States v. Kim, 595 F.2d 755, 760 (D.C. Cir. 1979); Seattle-First Nation- al Bank v. Randall, 532 F.2d 1291, 1296 (9th Cir. 1976); Gil- mour v. Strescon Industries, Inco., 66 F.R.D. 146, 150 (E.D. Pa. 1975), aff'd, 521 F.2d 1398 (3rd Cir. 1975), and whether the records are complete. United States v. Weiner, 578 F.2d 757, 792, cert. denied, 439 U.S. 981 (1978). Here, the appellants 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. 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. See Schapansky, supra. Consequently, this case is remanded to the presiding official for further adjudication consistent with this Opinion and Order. On remand, the presiding official may wish to consider 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. Therefore, the petition for review is GRANTED, the ini- tial decision VACATED, and the case REMANDED to the Chicago Regional Office. FOR THE BOARD: February 8, 1984 Kathy W. Semone for Robert E. Taylor, Secretary Washington, D. C. —12la— UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD CHICAGO REGIONAL OFFICE : { 4 CHARLES F. BEHENSKY, JR.. et al.’ V. DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION CASE NUMBER CH075281F0979REM DATE: December 17, 1984 INTRODUCTION By Opinion and Order dated February 8, 1984, the Board remanded this case for further adjudication. The Board specifically directed further-analysis of the agency’s documentary evidence and a new determination as to the reliability and accuracy of the agency’s records. A hearing on the remanded issue was held on August 20-31, 1984 in Chicago, Illinois. ANALYSIS AND FINDINGS The general facts surrounding the 1981 nationwide air traffic controllers strike are fully described in Schapansky v. Department of Transportation, MSPB Docket No. DA075281F1130 (October 28, 1982), aff'd, 735 F.2d 477 (Fed. Cir. 1984), cert. denied, 53 U.S.L.W. 3365 (Nov. 13, 1) See Appendix — 122a— 1984). In addition, the facts and circumstances relating to the Chicago Center (ZAU), where the appellants in the instant case were employed, are set forth in my Initial Decision dated January 18, 1983, and the Board’s February 8, 1984 Opinion and Order. In Schapansky, supra the Board and the Court held that the agency could establish a prima facie case of strike par- ticipation by showing that an employee was absent without authorization during the period of the strike. Hearsay evidence may be sufficient to establish such a prima facie case. Campbell v. Department of Transportation, MSPB Docket No. DE075281F0674 (April 25, 1983) aff'd 735 F.2d 497 (Fed. Cir. 1984), cert. denied, 53 U.S.L.W. 3269 (Oct. 9, 1984). In Borninkhof v. Department of Justice, 5 MSPB 150 (1981), the Board set forth various principles and factors to be considered in the evaluation of hearsay evidence. In remanding the instant case, the Board stated its concern regarding the agency’s documentary evidence, noting several apparent alterations and inconsistencies in the agency’s records. Following an analysis and application of the Borninkhof factors, the Board determined that further inquiry was necessary to ascertain the reliability of the agency’s records. The Board specifically noted that such in- quiry could include an examination of the circumstances sur- rounding the creation of the documents at issue. Behensky, et al. v. Department of Transportation, MSPB Docket No. CH075281F0979 (February 8, 1984) at 6. The documents in question are the watch schedules, the sign-in logs (304’s) and the time and attendance (T & A) reports. A watch schedule shows an employee’s shift assign- ments for a one-week period and was normally posted three to four weeks in advance. A sign-in log is a document nor- mally prepared one day in advance, and shows the names of ———————————e —123a— employees assigned to a particular shift, as per the watch schedule. As employees report for duty, they are to sign and initial next to their names to indicate their presence. A T & A report is an administrative document, used to note an employee’s attendance, pay and leave for a two-week pay period, and is prepared through a review of applicable watch schedules and sign-in logs. At the remand hearing, the agency presented the tes- timony of Mr. Robert Miller who, at the time of the strike, was the Facility Evaluations Officer for ZAU. Mr. Miller tes- tified over a period of several days as to the practices and procedures regarding the preparation and use of the docu- ments, including the operation of the "war room", a central work area Set up during the second week of the strike to deal with administrative paperwork. The agency also presented the testimony of several area supervisors regarding the preparation and use of the documents in general, and specific identification of sign-in logs prepared by them. The agency also presented testimony from individuals who had been involved in the "war room" activities at various time. None of the appellants in this case testified at the remand hearing. Appellants’ representative cross-examined the agency’s witnesses and introduced various exhibits.” The representatives essentially attempted to attack the reliability 2) The cases involving appellants represented by Richard J. Leighton were partially severed from this consolidation. Following the conclusion of Mr. Leighton’s presentation, Messrs. Klein and Wood presented further evidence on behalf of their clients. However, this technical severance has no effect upon the findings and conclusions in this decision and requires no further discussion. —124a— of the agency’s documentary evidence and the credibility of Mr. Miller and Mr. Richard Shewfelt, Manager of the Labor Relations Branch for FAA’s Great Lakes Region.> With respect to the watch schedules, appellants point to numerous differences between the original schedules (Appellants’ Group Ex. 8) and the copies of said schedules contained in individual adverse action files. Mr. Miller tes- tified that said differences were due to the fact that the copies in the adverse action files were made while the schedules were still operational, and that subsequent changes on the original schedules were made while "working" controllers were handling the increased workload occasioned by the strike. Indeed, a close examination of the documents reveals that no changes were made to any appellant’s scheduled shifts during the applicable period.” Mr. Miller testified that he made notations on the watch schedules of two appellants (DeJong and Reedy) but that said notations did not change their assigned shifts, and the record bears this out. Mr. Miller and the other supervisors testified as to the pro- cedures for posting and amending watch schedules. Based upon their testimony, and the consistency of the documents as they pertain to the appellants, I find that the watch schedules are reliable and, in the absence of a specific chal- 3) Appellants moved for the imposition of sanctions against the agency based upon alleged misrepresentation, faud and forgery. In light of my analysis and findings infra, said motion is hereby denied. Swenson v. Office of Personnel Management, 7 MSPB 565 (1981); Butler vy. Smithsonian Institution, 9 MSPB 843 (1982). 4) The period beginning with August 3, 1981 and continuing through the date of each appellant’s "deadline" shift (the first schedules shift after 11:00 a.m. on August 5, 1981). —125a— lenge by any appellant, accurately reflect appellants’ shift as- signments during the period in question. Regarding the sign-in logs, appellants point to differences between the original logs, (Appellants’ Joint Ex. 9) and the copies contained in the adverse action files. However, during the applicable period, such differences appear with respect to only three of the appellants (Nelson, Lockhart and Schultz). In each of these cases, the appellant’s name had been added to a sign-in log by a person working in the "war room". Mr. Miller testified that this was done because the employee’s name had been inadvertently omitted from the sign-in log for a shift to which he was assigned as per the watch schedule. Mr. Miller, and the area supervisors, testified that it was not uncommon that a person’s name would not appear on the sign-in log for a particular shift. In such an instance, when the controller reported for work and discovered that his name was not on the log, the supervisor would add the employee’s name to the log, and the employee would sign in. Obviously, if the employee did not appear for an assigned shift, the omission of his name from the log might not be dis- covered for some time. As previously noted the watch schedule is the official document which determines an employee’s assigned shift. In this regard, the presence or absence of an employee’s name on a sign-in log is not nearly as significant as the presence or absence of the employee’s signature on the document. The witnesses consistently testified that no signatures were erased from any sign-in logs. Moreover, none of the appel- lants has alleged that he did appear on the dates in question. 5)~ Appellants, Morris, Logerquist and Kish did not have posted watch schedules. However, the record contains testimony and or statements from their supervisors describing their shift assignments. — 126a— (Nelson and Lockhart - August 7, 1981; Schultz - August 3 & 5, 1981). I therefore find that these three appellants were “not prejudiced by the agency’s unusual, albeit unnecessary, addition of their names to the logs. As to the sign-in logs in general, the area supervisors verified the authenticity of the applicable logs for the vast majority of the appellants in this consolidation. Based upon their testimony regarding the preparation and use of the logs, and my own examination of all of the logs for the applicable period, I find an "inherent probability of trustworthiness". Behensky, supra at 6. With respect to the T & A’s, the record reflects that amended reports were prepared during, and for months after, the period of strike. However, the vast majority of the amendments dealt with pay periods subsequent to an employee’s deadline shift, and are essentially irrelevent. As to amendments dealing with dates during the applicable period, and T & A amendments in general, such changes are common in the Federal sector. Moreover, in light of my find- ings above regarding the watch schedules and sign-in logs, the T & A’s appropriately reflected each appellant’s status during the applicable period. I am not persuaded by appellants’ arguments concerning the credibility of Messrs. Miller and Shewfelt, and the al- leged forgery, fraud and misrepresentations on the part of the agency. I find no persuasive evidence that any agency of- ficial perjured himself, attempted to "make" or "rig" a case against an appellant, or otherwise committed an 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 | . | j ; ere —127a— of circumstances, and in light of my findings above, I find that the agency’s documentary evidence is, in fact, reliable. In summary, I have carefully reviewed the record and have determined that each of the appellants in this consolidated group was absent without authorization on one or more days during the strike, and that each failed to report for his/her “deadling shift". Accordingly, I find that the agency has es- tablished a prima facie case of strike participation with respect to each appellant. In light of this finding, the burden of persuasion now shifts to each appellant to show that he or she was unaware of the strike, or that his/her absence was not due to intentional strike participation. Schapansky, 735 F.2d at 482. In my first Initial Decision dated January 18, 1983, I ad- dressed in detail the individual rebuttals presented by cer- tain appellants in this consolidated group.° With respect to appellant Patrick Lydon, evidence received during the remand hearing warrants further discussion of his case, as set forth infra. However, I find no reason to substantially alter my prior findings with respect to the remaining individuals, and I hereby adopt and incorporate herein said prior find- ings. As to Mr. Lydon, his former supervisor testified that under normal circumstances (prior to the strike) an employee could be granted emergency annual leave for more than one day, if the situation warranted it. (Remand Hearing TR. p. 887) This testimony does not alter the fact that appellant was granted such leave for only one date, July 31, 1981. However, it does tend to support appellant’s position that his failure to 6) Appellants Brandis, Broholm, Burgard, Carlson, Ellis, Holic, Kemphues-Eden, Kish, Logerquist, Lydon, Moses, Peacock, Piorkowski, Popowitch, Price, Radnoff, Rasmussen, Reedy, Rudd, Schuemann, Taggart, and Toepfer. — 128a— report to work on and after August 3, 1981 was based upon his belief that he had been granted emergency annual leave indefinitely during the duration of his "emergency" (the premature birth and subsequent treatment of his son). Notwithstanding the above "support" for appellant’s posi- tion, my review of the total available evidence leads me to again reject said position. Although allegedly unable to come to work due to an "emergency" situation, appeliant found time to visit union headquarters during the first week of the strike and to stand on the picket line soon after his deadline date. Moreover, a reasonable person, upon receipt of a proposal notice dealing with a period of time during which he believed himself to have been in an approved-leave status, would immediately contact the agency to point out its obvious error. However, Mr. Lydon did not do this. In fact, he did not raise this "obvious" defense in his written and oral replies to the proposal notice, nor in his petition for appeal to the Board. Under the circumstances, Mr. Lydon’s stated reason for his absences is not worthy of belief. Anderson v. Department of Transporation, MSPB Docket No. SL075281F0347 (April 25, 1983), aff'd 735 F.2d 537 (Fed. Cir. 1984), cert. denied, 53 U.S.L.W. 3365 (Nov. 13, 1984). I find that the agency has established a prima facie case of strike participation with respect to each appellant, and that none of them has presented persuasive evidence in rebuttal. The same evidence supports the charges of absence without leave. Schapansky, 735 F.2d at 484. I therefore find that the charges are supported by a preponderance of the evidence, and they are hereby sustained. Appellants raised numerous defenses and issues which have been addressed by both the Board and the Courts. Appellants’ positions with respect to these matters have been consistently rejected, as follows: — 129a— 1. The agency properly invoked the "crime provision" to reduce the notice period to seven days. See Schapansky, 735 F.2d 477 at 486; 2. There was no disparate treatment of appel- lants as compared to controllers who returned to work prior to their deadline shift. See Schapansky at 485; 3. There was no improper "command control" ex- ercised by the President or agency officials. See Schapansky at 486-87; DiMasso v. Department of Transportation, FAA, 735 F.2d 526 at 528 (Fed. Cir. 1984); 4. Appellants were afforded an adequate period of time within which to reply to the agency’s charges, and the agency committed no harmful error in this regard. See Adams v. Department of Transportation, FAA, 735 F.2d 488 at n. 3 (Fed. Cir. 1984); 5S. The agency committed no harmful error with respect to appellants’ oral replies, and appel- lants had a fair opportunity to present evidence rebutting the charges, had they chosen to do so. See DiMasso at 528; 6. Appellants were not constructively suspended during the notice period. See Adams at 492-93. In Shapansky, 735 F.2d at 484, the Court stated that the penalty of removal "under such circumstances was clearly justified, and the nexus between removal and efficiency of the service is clear." Accordingly, I find that the agency’s penalty selections regarding these appcilants were both reasonable and appropriate. Douglas v. Veterans Administra- tion, 5 MSPB 313 (1981). DECISION The agency’s actions are hereby AFFIRMED. — 130a — NOTICE This is an initial decision and will become a final decision of the Merit Systems Protection Board on January 21, 1985, unless a petition for review is filed with the Board. Any petition for review must be filed with the Board within thirty-five (35) calendar days after the issuance of this decision. Any party to this appeal, the Director of the Office of Per- sonnel Management (OPM) and the Special Counsel may file a petition for review of this decision with the Merit Sys- tems Protection Board. The Director may request review only if he or she is of the opinion that the decision is er- roneous and will have a substantial impact on any civil ser- vice law, rule or regulation under the jurisdiction of OPM. 5 U.S.C. § 7701(e)(2). The petition must identify specifically the exception taken to this decision, cite the basis for the ex- ception, and refer to applicable law, rule, or regulation. The petition for review must be filed with the Office of the Clerk, Merit Systems Protection Board, 1120 Vermont Ave. N.W., Washington, D.C. 20419 no later than thirty-five (35) calendar days after issuance of this decision. If a petition for review is filed, an original and two copies should be for- warded to the Office of the Clerk. The Board may grant a petition for review when a party submits written argument and supporting documentation which tends to show that: 1. New and material evidence is available that, despite due diligence, was not available when the record was closed; or The decision of the presiding official is based On an erroneous interpretation of statute or regulation. N 3 + = 3 3 g . ‘ 3 % DRE pale —13la— Any appellant adversely affected or aggrieved by the Board’s final decision may obtain judicial review, if the Court has jurisdiction, by filing a petition with the U.S. Court of Appeals for the Federal Circuit, 717 Madison Place, N.W., Washington, D.C. 20439. Such a petition may not be filed while the case is pending before the Board. To be timely, the petition for judicial review must be received by the Court within 30 days of the final Board decision. 5 U.S.C. § 7703(b)(1). For the Board: Stephen E. Manrose Presiding Official — 132a— — 133a— UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD CHARLES F. BEHENSKY, J R., et al., RICHARD J. BRANDIS, et al. Vv. DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION DOCKET NUMBERS CH075281F0979REM CH075281F 1066 Date: July 5, 1985 BEFORE Herbert E. Ellingwood, Chairman Maria L. Johnson, Vice Chair Dennis M. Deaney, Member 1) Although a separate petition for review of the remand initial decision, dated December 17, 1984, was filed by each group of appellants, this case is being consolidated due to the similarity of issues and situations. The appeilants’ Motion for Sanctions and to Strike Respondent’s Opposition Brief to petition for review is hereby DENIED; and the agency’s Motion for Reconsideration is h [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1427%3A1. Public record. Not legal advice.