Appealed from: Merit Systems Protection Board.
Markey, Chief Judge, Friedman, Rich, Smith, and Nies, Circuit Judges. Nies, Circuit Judge, with whom Rich, Circuit Judge, joins, dissenting.
The only issue we discuss in this case is whether, in sustaining the decision of the Federal Aviation Administration (Administration) removing the petitioner from his position as an air traffic controller for participating in the illegal air traffic controllers strike in August 1981, the Merit Systems Protection Board (Board) correctly rejected the petitioner's argument that his absence from work resulted not from his participation in the strike but from his having been on annual leave. We vacate the Board's decision and remand for further proceedings consistent with this opinion.
The facts relating to the nationwide air traffic controllers strike are set forth in our opinion in Schapansky v. Department of Transportation, 735 F.2d 477 decided today. A strike called by the Professional Air Traffic Controllers Organization ("PATCO") 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 controller who had not returned to work by 11 a.m. on August 5 would be discharged.
Letenyei had been authorized annual leave from August 2 through August 15, 1981. On August 1, 1981, the day before his annual leave was scheduled to begin, Letenyei's supervisor notified him by telephone that his leave had been cancelled, effective 3:18 p.m. on August 3, 1981. Letenyei did not report for work on August 3 or 4, or for his shift on August 5 following the expiration of the Presidential deadline. On August 6, 1981, the Administration sent petitioner a written notice of proposed removal for striking and for being absent without leave beginning on August 3, 1981. Because Letenyei had moved, he did not receive the notice until August 20, 1981.
On August 15, 1981, the day before his previously scheduled leave had been due to expire, Letenyei called the agency to ascertain the shift on which he was scheduled to work on the following day. The agency told him not to report for work but to call two days later to arrange for an oral hearing.
On August 28, 1981, Letenyei made his oral response to the notice of proposed removal. He told the oral reply officer that he had made arrangements to move and to sell his house and then to go on vacation during his scheduled leave; that when he was informed on August 1 that his leave was cancelled, he was in the midst of moving and had a loaded truck at his house; that at that time "my priority was to take care of the houses and I could not change vacation plans"; and that "owning two houses at the time and with moving and preparing both houses, it was just that I could not change plans or it would cost thousands within a week." At the subsequent hearing before the Board, Letenyei also contended that the collective bargaining agreement between PATCO and the Administration precluded the agency from cancelling his leave.
After considering the oral reply, the Administration removed Letenyei for participation in the strike and absence without leave as charged. Letenyei appealed his removal to the Board.
A hearing was held before the presiding official of the Board's regional office. The presiding official reversed the Administration's removal of Letenyei from his position. She held that under the collective bargaining agreement the agency had no authority to cancel Letenyei's leave. She further found that "there is no evidence that [Letenyei's] refusal to [provide services to his employer] was in concert with others. . . . Rather, at all times since his leave was cancelled, [he] had insisted that the leave cancellation was improper, in violation of the union contract, and unacceptable to him because of his moving and vacation plans." Kays v. Department of Transportation, Nos. CH075281F2014, CH075281F2202, slip op. at 5 (M.S.P.B. Phil. Reg'l Off. Nov. 22, 1982) (emphasis in original).
The presiding official held that Letenyei "was indeed AWOL on August 3-6, 1981 as charged by the agency." Id. at 7. She based this conclusion upon his failure to obey the agency's order to report for work on August 3, 1981. Although she held that order was improper, she further held that the petitioner was obligated to obey it and to depend upon the grievance procedure in the collective bargaining contract for redress. She ruled, however, "that removal for this AWOL offense is excessive," id. at 8, and ordered the agency "to substitute a 60 day suspension" as the penalty. Id. at 12.
On the agency's appeal, the Board reversed and reinstated the Administration's removal action. The Board held that the collective bargaining agreement did not preclude the agency from cancelling Letenyei's leave. Kays v. Department of Transportation, Nos. CH075281F2014, CH075281F2202, slip op. at 4 (M.S.P.B. Apr. 25, 1983). Noting that Letenyei had "appear[ed at the picket line] at various times during the strike, and . . . attended a PATCO rally on August 5, 1981," id. at 5, the Board concluded that Letenyei "has failed to rebut the agency's prima facie case in support of the charge of his participation in the PATCO strike. . . ." Id. at 6.
A. Letenyei contends that the collective bargaining agreement between PATCO and the Administration barred the agency from cancelling his leave. He relies upon section 1 of article 28 of the agreement which, after specifying that each eligible employee was entitled to at least three consecutive weeks of annual leave for vacation, provided that
this leave shall not be cancelled or rescheduled except for an operational emergency, or at the request of the employee.
He argues that this language authorized the Administration to cancel leave only when an operational emergency actually existed, but not in anticipation of one. Since the strike had not begun when the Administration cancelled his leave on August 1, 1981, Letenyei contends that the agreement precluded cancellation on that day. From these premises he apparently reasons that he still was on annual leave during the period the Administration found he was on strike (August 3-6) and that the strike finding therefore falls.
As noted, the presiding official adopted this interpretation of the agreement. She concluded that "a contract violation occurred when appellant's leave was cancelled." Kays, slip op. at 6 (Phil. Reg'l Off.).
In holding that the contract did not bar the cancellation of Letenyei's leave, the Board relied upon its earlier decision in McPartland v. Department of Transportation, No. DA075281F1018 (M.S.P.B. Feb. 8, 1983), which it described as holding that this contract provision
requires only the existence or reasonable likelihood of the existence of an operational emergency before steps may be taken to cancel approved leave prospectively or actually to cancel such leave during the duration of the emergency. In this case, an operational emergency ...