Terry L. Anderson, Leigh Anderson, Allan A. Broholm, and Rudolf C. Radnoff v. Department of Transportation, Federal Aviation Administration

827 F.2d 1564, 1987 U.S. App. LEXIS 509
CourtCourt of Appeals for the Federal Circuit
DecidedSeptember 3, 1987
DocketAppeal 85-1146, 85-1824, 85-2814, 85-2821
StatusPublished
Cited by10 cases

This text of 827 F.2d 1564 (Terry L. Anderson, Leigh Anderson, Allan A. Broholm, and Rudolf C. Radnoff v. Department of Transportation, Federal Aviation Administration) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Terry L. Anderson, Leigh Anderson, Allan A. Broholm, and Rudolf C. Radnoff v. Department of Transportation, Federal Aviation Administration, 827 F.2d 1564, 1987 U.S. App. LEXIS 509 (Fed. Cir. 1987).

Opinions

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. § 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).2

Petitioners’ appeals to the MSPB were heard as part of a large consolidated pro[1565]*1565ceeding.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. § 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. CH075281F0979REM) 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 facil[1566]*1566ity prior to their deadline shift to indicate that they were ready to work or were confused as to when to report to work. 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.

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 signdn 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.

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827 F.2d 1564, 1987 U.S. App. LEXIS 509, Counsel Stack Legal Research, https://law.counselstack.com/opinion/terry-l-anderson-leigh-anderson-allan-a-broholm-and-rudolf-c-radnoff-cafc-1987.