Appealed from: Merit Systems Protection Board.
Friedman, Circuit Judge, Miller, Senior Circuit Judge,*fn* and Nies, Circuit Judge.
This petition to review challenges an order of the Merit Systems Protection Board (Board) dated September 4, 1984 23 M.S.P.R. 19, sustaining the removal of the petitioner. We affirm.
A. This case is here for the second time. The Federal Aviation Administration removed the petitioner Letenyei from his position as an air traffic controller for participating in the illegal air traffic controllers' strike called by the Air Traffic Controllers' Union (PATCO) in August 1981. In so ruling, the Board, 15 M.S.P.R. 62, reversed the initial decision of its presiding official, who held that there was no evidence that Letenyei's absence from work during the strike was in concert with others.
The strike began on August 3, 1981. As we stated in our prior opinion, Letenyei v. Department of Transportation, FAA, 735 F.2d 528, 529-30 (1984):
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.
In his oral reply to the Notice of Proposed Removal, Letenyei stated
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.
In our prior opinion we rejected Letenyei's argument that the collective bargaining agreement barred the agency from cancelling his leave and held that Letenyei "has not rebutted the Administration's prima facie case that his refusal to work was unauthorized. The question, therefore, is whether Letenyei has rebutted the government's prima facie case on the second element of striking -- whether Letenyei's refusal to work was 'in concert with others.'" Id. at 532. We ruled that, on the basis of the Board's "reasoning and analysis," we could not sustain the Board's conclusion that Letenyei's refusal to work was "in concert with others" and therefore involved striking. We pointed out that
the fact that Letenyei was able to work during the strike period does not establish that his failure to do so was the result of his acting in concert with other controllers. It is equally compatible with his belief that his leave had been improperly cancelled and his attitude that completing his move and the sale of his house and taking his vacation were more important than promptly returning to work. Although one may condemn this ...