Bucking the Pink Slips

Dear_________: This is notice that I intend to remove you from your position of Air Traffic Control Specialist ..." So begins the letter, signed by Federal Aviation Administration supervisors-- that has been mailed to more than 11,000 striking air-traffic controllers since President Reagan ordered them fired beginning Aug. 5. The Administration was relying on two solid legal justifications:

Title 5, Section 7311 of the U.S. Code, which states that a federal civil servant may not continue to hold his job if he takes part in a strike against the Government; and the oath, signed by all federal employees, not to strike. But firing a federal employee is not as easy as a form letter. Two weeks after the first pink slip went out, the matter was still very much up in the air.

Once a federal worker receives a dismissal notice, he normally has 30 days to appeal it to his employing agency. With the consent of the Office of Personnel Management, the FAA reduced the response time to seven days. If a controller can show that he was fired unfairly (proving, for example, that he was harassed by fellow strikers), he will be taken back aboard. If the FAA rules against him, however, he then has 20 days to file an appeal before the Merit Systems Protection Board, a federal arbitration agency. If the board affirms the firing, a controller may still take his case to the U.S. courts. If that plea fails, a controller would best be advised to start circulating his resume.

Richard Leighton, a Washington lawyer who represents PATCO officials, is urging all fired controllers to pursue the appeals process to the end, making a number of arguments at every step. First, he says, they should challenge the seven-day notice as inadequate. Next, they should argue that they were ill, absent without leave, taking a sudden vacation or otherwise not actually on strike. Finally, Leighton suggests that fired controllers contend that they are not receiving equal protection under the law; if the FAA initially allowed strikers to return within 48 hours without being fired, he reasons, why cannot all strikers be allowed back at some point? Says Leighton: "The members will argue that if they are going to be fired, everyone who struck has to be fired."

If all appeals fail, there is still hope. The Federal Labor Relations Authority is considering PATCO's argument that the FAA did not bargain in good faith. If the FLRA agrees, it could order the controllers rehired. Even if the board disagrees, the controllers may not finally be fired for months. PATCO intends to battle any Government attempts to lump individual appeals together. The fired controllers consider their plight a test of lofty principles, and they remain eligible for retirement and pension benefits until their dismissals are final. So the FAA, the MSPB and the courts face the prospect of hearing as many as 12,000 controllers, each with his own lawyer and his own, slightly different story to tell.

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