Anderson v. Department of Transp., F.A.A.

• Decision Date: 03 September 1987
• Docket Number: 85-1824,85-2821,Nos. 85-1146,85-2814,s. 85-1146
• Citation: 827 F.2d 1564
• Parties: Terry L. ANDERSON, et al., Leigh Anderson, et al., Allan A. Broholm, et al., and Rudolf C. Radnoff, Petitioners, v. DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION, Respondent. Appeal
• Court: U.S. Court of Appeals — Federal Circuit

Page 1564

827 F.2d 1564

Terry L. ANDERSON, et al., Leigh Anderson, et al., Allan A Broholm, et al., and Rudolf C. Radnoff, Petitioners, v. DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION, Respondent.

Appeal Nos. 85-1146, 85-1824, 85-2814, 85-2821.

United States Court of Appeals, Federal Circuit.

Sept. 3, 1987.

Richard J. Leighton, Buchanan Ingersoll, Professional Corporation, Washington, D.C., argued for petitioner Leigh Anderson, et al. With him on the brief were Glenn P. Sugameli, Risa D. Sandler and Margaret S. Dailey.

Gary Klein, Hannon & Trepel, Silver Spring, Md., argued for the petitioners in appeal numbers 85-1146, 85-2814 and 85-2821. With him on the brief was Phillip Wood, Pasky & Wood, Aurora, Illinois.

Stephen J. McHale, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued for respondent. With him on the brief were Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director and Sandra P. Spooner.

Before BALDWIN, Senior Circuit Judge, ^* NIES and ARCHER, Circuit Judges.

PER CURIAM.

Petitioners appeal from the decisions of the Merit Systems Protection Board (MSPB or board) sustaining their removals by the Federal Aviation Administration (FAA) from positions as air traffic controllers. We affirm.

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, ¹ in violation of 5 U.S.C. Sec. 7311 (1982) and 18 U.S.C. Sec. 1918 (1982), and for unauthorized absence (AWOL). All petitioners, except three, were controllers at the Chicago Air Route Traffic Control Center (ZAU). ²

Petitioners' appeals to the MSPB were heard as part of a large consolidated proceeding. ³

3] 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 Anderson, et al. (No. 85-1824). See 5 C.F.R. Sec. 1201.113 (1986). A third group of petitioners in the consolidated proceeding filed a petition for review with the full board under the caption, Behensky, et al. v. Department of Transp., FAA, 19 M.S.P.R. 341 (MSPB 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 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. CH075281FO979REM) on December 17, 1984 and July 5, 1985, respectively, adverse to the petitioners.

Petitioners in Allan A. Broholm, et al. (No. 85-2814), members 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 contended 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 factual controversy regarding these records in some detail.

1. The Initial MSPB Hearing.

At the initial hearing, the FAA proffered the documentary 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 deadline shift. Petitioners stipulated to the contents but not the accuracy of these files. These adverse action files were admitted 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 locations, including the ZAU facility chief, Mr. Gunter, as follows:

1. The time and attendance records truly and accurately 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.

2. The appellants did not report for their first regularly-scheduled or directed shift as assigned 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.

3. The appellants did not, in his opinion, provide any substantive information for their failure to report for the above-referenced shifts.

4. Mr. (facility chief) reviewed and considered all written responses received from appellants prior to making his decision to remove appellants.

5. Mr. (facility chief) reviewed and considered all summaries and recommendations concerning the oral reply prior to making his decision.

6. All notices of intended removal were mailed regular and certified mail.

7. Mr. (facility chief) is not aware of any appellants having contacted the facility 8. In deciding that an appellant participated in a strike and was AWOL, Mr. (facility chief) considered that a nationwide strike was in progress, that the appellants were scheduled to report for work, that they failed to report to work on or at any time prior to their deadline shift and that he believed the appellants offered no substantive information for his/her absence.

prior to their deadline shift to indicate that they were ready to work or were confused as to when to report to work.

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 participation and AWOL, namely, (1) watch schedules; (2) personnel 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 advance 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 advance, by inserting on the form the names, taken from the watch schedule, of the employees assigned to that shift. Included 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 attendance, 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 Exhibit 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 discrepancies were the result of "doctoring" by the FAA to support 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 official, petitioners' counsel submitted to the presiding official at the close of argument a color-coded list of the alleged inconsistencies between the adverse action file copies of the sign-in logs and Exhibit 16, which petitioners' counsel explained 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 notation "AWOL" was inserted in the blank space in the last column, (b) the "AWOL" notation was substituted for an annual 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-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 discrepancies other than to make a vague statement that the file copy logs were "updated." ⁴ However, in the absence of any evidence showing

                that the logs were "doctored" for a specific purpose, the presiding official rejected petitioners' argument 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 probative 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

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