Appealed from: Merit Systems Protection Board.
Markey, Chief Judge, Friedman, Rich, Smith, and Nies, Circuit Judges.
The principal issue in this case, which is on a petition to review a decision of the Merit Systems Protection Board (Board), is whether in affirming the decision of the Federal Aviation Administration (Administration) removing the petitioner from his position as an air traffic controller for participation in the illegal air traffic controllers' strike in August 1981, the Board properly rejected the petitioner's contention that his absence from work during the strike resulted from his having been coerced rather than his voluntary participation in the strike. The two other issues we address are whether the Administration's decision was flawed because the agency failed to show a nexus between the petitioner's participation in the strike and the efficiency of the service, and whether the Board's decision was invalid because only one member of the Board signed the opinion. We affirm the Board.
The facts relating to the nationwide air traffic controllers' strike are set forth in our opinion in Schapansky v. Department of Transportation, FAA, 735 F.2d 477, decided today. In brief, they are that a strike the Professional Air Traffic Controllers Organization (PATCO) called began at 7 a.m. on August 3, 1981. At 11 a.m. on that date the President announced that the strike was illegal and that any striking controllers who had not returned to work by 11 a.m. on August 5, would lose their jobs.
August 3 and 4, the first days of the strike, were petitioner Johnson's regular days off. Johnson did not report for work on his scheduled shift on August 5, 1981, or attempt to get in touch with his supervisor on that day or the preceding day to explain his absence. There is evidence in the record that Johnson was on the picket line on August 3-6 and on August 8, and that on some of those days he carried a sign reading "PATCO on strike."
On August 7, 1981, Johnson received a letter from the Administration dated August 6, 1981, proposing to remove him for striking on August 5, 1981, and for absence without leave on that day. The following day, August 8, 1981, Johnson called his supervisor and asked if he could return to work. His supervisor told Johnson that he could not return to work because he had missed his shift on the August 5 deadline the President had set, but suggested that he make an oral response to the proposed removal. The petitioner requested that his oral response be scheduled at a time when no picketers could see him enter the facility, and the agency did so.
According to the testimony at the subsequent Board hearing, at his oral response (made on August 9 or 10) Johnson stated that the reason he failed to report for work on August 5 was not his participation in the strike but fear for his own safety and that of his family. Johnson described an incident in late June, in which he argued with Jim Welsh, a controller known for his hot temper, about the propriety of a strike by PATCO. Welsh indicated that he believed that anyone who did not support the strike could not be considered a member of the human race. When Johnson suggested that they not discuss the subject while on duty, Welsh responded that he never wanted to speak to Johnson again. Johnson characterized Welsh's behavior as "menacing."
Johnson also referred to a conversation he had "overheard in early June of 1981, about 'scabs' [in the coal fields of West Virginia] ending up with bullet holes in them." He further stated that on two occasions, other controllers engaged him in lengthy, but calm, discussions in which they advocated strike participation. Finally, on the day of his oral response, his supervisor told Johnson that another controller had overheard a conversation on the citizen's band radio (CB) in which yet another controller had reported that the petitioner was on his way to the air traffic control center. Another voice on the CB radio replied that he knew where Johnson lived and that he would "take care of it." At the time of the oral reply, Johnson moved his wife and children to an "undisclosed location" for their protection.
In addition to these incidents, Johnson and his wife were not getting along and had separated in the spring of 1981. Johnson also had serious and painful major dental work done on July 23 and 31, 1981, resulting from an abscess, which required him to take a strong painkiller.
Following Johnson's oral response and his written reply, the Administration found that the charges of striking and absence without leave are "fully supported by the evidence and warrant your removal to promote the efficiency of the service," and removed him.
Johnson appealed to the Board. After a hearing, the presiding official of the Board's regional office reversed the removal, on the ground that Johnson had not struck but merely had been absent without leave. She substituted for the Administration's penalty of removal a suspension of two days, equal to the time Johnson had been absent without leave.
The presiding official described Johnson as "an extremely credible witness" and stated that his "own testimony is corroborated by the testimony of credible witnesses." She noted that Johnson's "team supervisor testified that appellant's emotional condition shortly before the strike was beginning to affect his work. When he talked to the appellant on August 8, 1981, the appellant gave him the impression he thought his life might be in danger. The supervisor testified that he felt the appellant was genuinely afraid. In addition, appellant called to testify four working air traffic controllers who indicated to varying degrees that appellant had reported his fears to them."
The presiding official pointed out that none of the type of retaliation appellant anticipated ever occurred at this facility. This establishes that, with hindsight, appellant's fear was not a reasonable one. It does not, however, diminish the strong testimony that appellant ...