                       UNITED STATES OF AMERICA
                    MERIT SYSTEMS PROTECTION BOARD


                                                   DOCKET NUMBERS 1
TINKER    HEARING A-D                              DA-0752-14-0289-I-1
TINKER    AFB HEARING E-L                          DA-0752-14-0293-I-1
TINKER    HEARING M-R                              DA-0752-14-0294-I-1
TINKER    HEARING S-Z                              DA-0752-14-0407-I-1
                Appellants,

              v.

DEPARTMENT OF THE AIR FORCE,                       DATE: June 5, 2015
            Agency.



        THIS FINAL ORDER IS NONPRECEDENTIAL 2

       Craig T. Barron and Delo Wayne Anderson, American Federation of
         Government Employees, Oklahoma City, Oklahoma, for the appellants.

       Telin W. Ozier, Esquire, Midwest, Oklahoma, for the agency.


                                        BEFORE

                          Susan Tsui Grundmann, Chairman
                             Mark A. Robbins, Member



1
  The individual appeals that are included in this consolidation are set forth in
Appendices A-D to this order. No petition for review was filed in the other appeals that
were decided as part of the initial decisions in these matters, and thus they are not listed
on these appendices or addressed in this decision.
2
   A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                        2

                                      FINAL ORDER

¶1         The appellants represented by the two American Federation of Government
     Employees (AFGE) representatives noted above have filed petitions for review of
     the four initial decisions, which affirmed the agency’s furlough actions.
     Generally, we grant petitions such as these only when:          the initial decision
     contains erroneous findings of material fact; the initial decision is based on an
     erroneous interpretation of statute or regulation or the erroneous application of
     the law to the facts of the case; the judge’s rulings during either the course of the
     appeal or the initial decision were not consistent with required procedures or
     involved an abuse of discretion, and the resulting error affected the outcome of
     the case; or new and material evidence or legal argument is available that, despite
     the petitioner’s due diligence, was not available when the record closed.        See
     Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
     § 1201.115). After fully considering the filings in this appeal, and based on the
     following points and authorities, we conclude that the petitioners have not
     established any basis under section 1201.115 for granting the petitions for review.
     Therefore, we DENY the petitions for review and AFFIRM the initial decisions,
     which are now the Board’s final decisions. 5 C.F.R. § 1201.113(b).

                                      BACKGROUND
¶2         A number of similarly situated employees from Tinker Air Force Base
     appealed the agency’s decision to furlough them for 6 days between July 8, 2013,
     and September 30, 2013.      See, e.g., MSPB Docket No. DA-0752-14-0289-I-1
     (Tinker Hearing A-D), Consolidated Appeal File (CAF), Tab 2; MSPB Docket
     DA-0752-14-0293-I-1 (Tinker Hearing E-L), CAF, Tab 2; MSPB Docket No.
     DA-0752-14-0294-I-1 (Tinker Hearing M-R), CAF, Tab 2; MSPB Docket
     DA-0752-14-0407-I-1 (Tinker Hearing S-Z), CAF, Tab 2. The individual appeals
     were consolidated into the aforementioned four groups. After holding a single
     hearing, the administrative judge issued an initial decision for each consolidated
                                                                                       3

     group, affirming the furloughs. See, e.g., Tinker Hearing A-D, CAF, Tab 28,
     Initial Decision (ID); Tinker Hearing E-L, CAF, Tab 31, ID; Tinker Hearing M-R,
     CAF, Tab 29, ID; Tinker Hearing S-Z, CAF, Tab 29, ID.
¶3        The Board has received two virtually identical petitions for review from Mr.
     Barron and Mr. Anderson of AFGE for each consolidated group. 3 See Tinker
     Hearing A-D, Petition for Review (PFR) File, Tabs 1-2; Tinker Hearing E-L, PFR
     File, Tabs 1-2; Tinker Hearing M-R, PFR File, Tabs 1-2; Tinker Hearing S-Z,
     PFR File, Tabs 1-2. The agency has filed responses in opposition to the petitions
     for review. See, e.g., Tinker Hearing A-D, PFR File, Tab 4.
¶4        Because the petitions for review raise the same issues in each matter, we
     have further consolidated these appeals to address the AFGE petitions for review.
     See 5 C.F.R. § 1201.36(b) (consolidation is appropriate if doing so would
     expedite processing and not adversely affect the interest of the parties).
     Accordingly, this final order applies to all of the appellants represented by Mr.
     Barron and Mr. Anderson whose furloughs were affirmed below in these four
     consolidated appeals.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶5        The appellants argue that the agency could not meet its burden of proof
     because it declined to call witnesses at the hearing and relied instead on
     documentary evidence that was not authenticated. E.g., Tinker Hearing A-D, PFR
     File, Tab 1 at 4-5.     Hearsay evidence is admissible in Board proceedings.
     Borninkhof v. Department of Justice, 5 M.S.P.R. 77, 83-87 (1981).                An
     assessment of the probative value of hearsay evidence depends on the

     3
       Numerous appellants in these consolidations designated individual representatives
     from AFGE. Only AFGE representatives Mr. Barron and Mr. Anderson filed petitions
     for review of the initial decisions issued by the administrative judge. Accordingly,
     petitions for review were docketed on behalf of those appellants represented by Mr.
     Barron or Mr. Anderson. See Tinker Hearing A-D, Petition for Review (PFR) File, Tab
     3; Tinker Hearing E-L, PFR File, Tab 3; Tinker Hearing M-R, PFR File, Tab 3; Tinker
     Hearing S-Z, PFR File, Tab 3.
                                                                                         4

     circumstances of each case. Id. Factors affecting the weight to be accorded to
     hearsay evidence include: the consistency of the declarants’ accounts with other
     information in the case; internal consistency; whether corroboration for the
     statements can otherwise be found in the record; the absence of contradictory
     evidence; and the credibility of the declarant when he made the statement
     attributed to him. Id. at 87.
¶6         The administrative judge relied on the documentary evidence provided by
     the agency in finding that the agency demonstrated “cause” for the furloughs,
     e.g., Tinker Hearing A-D, ID at 6, 10, and that the furloughs promoted the
     efficiency of the service, e.g., Tinker Hearing A-D, ID at 10. The administrative
     judge found that this evidence “overwhelmingly” supported the agency’s need to
     reduce spending as a result of sequestration and also supported a finding that the
     agency evenly and fairly applied the furloughs. E.g., Tinker Hearing A-D, ID at
     15.   Based on our review of the records in these appeals, we agree with the
     administrative judge’s findings. The affidavits and memoranda relied on by the
     agency to establish that the furloughs were necessary are of sufficient probative
     value to establish these facts given the consistency of the evidence and the
     absence of any contradictory evidence.
¶7         It is well settled that technical rules for the exclusion of evidence, such as
     appropriate   authentication,   do   not   apply   to   proceedings   before   federal
     administrative judges. Sanders v. Department of the Air Force, 23 M.S.P.R. 88,
     90 (1984). Here, the appellants have not claimed that the documents submitted
     by the agency are inauthentic. Their arguments are based on the Federal Rules of
     Evidence. The Board relies on the Federal Rules of Evidence as guidance, but an
     administrative judge is not required to strictly adhere to them in determining what
     evidence is to be admitted at a hearing. See Arterberry v. Department of the Air
     Force, 25 M.S.P.R. 582, 583 (1985). The appellants’ arguments rely entirely on
     the type of evidence on which the agency relied to meet its burden of proof.
     Administrative judges are not prohibited from admitting any category of evidence
                                                                                  5

and have considerable discretion in the manner in which they conduct hearings.
Hatley v. Veterans Administration, 9 M.S.P.R. 585, 590 (1982). We find no error
in the administrative judge’s findings that the agency met its burden of proof with
documentary evidence in these cases.        The appellants have not presented any
basis for disturbing the initial decisions. Therefore we DENY the petitions for
review.

                  NOTICE TO THE APPELLANTS REGARDING
                      YOUR FURTHER REVIEW RIGHTS
     You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
                            United States Court of Appeals
                                for the Federal Circuit
                              717 Madison Place, N.W.
                               Washington, DC 20439

     The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
     If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States    Code,     at   our    website,   http://www.mspb.gov/appeals/uscode.htm.
Additional        information     is   available    at   the    court’s    website,
www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se
                                                                                  6

Petitioners and Appellants,” which is contained within the court’s Rules of
Practice, and Forms 5, 6, and 11.
     If you are interested in securing pro bono representation for your appeal to
the Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.




FOR THE BOARD:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
                                                           7


                         APPENDIX A

                      Tinker Hearing A-D
                      DA-0752-14-0289-I-1


Ali A. Akbaran                       DA-0752-13-2270-I-1
Barbara J. Anderson                  DA-0752-13-0734-I-1
Brenda Brown                         DA-0752-13-1570-I-1
Brian R. Atkins                      DA-0752-13-2250-I-1
Carl Dahms                           DA-0752-13-0690-I-1
Cecil Cole                           DA-0752-13-2281-I-1
Cody Cleveland                       DA-0752-13-3298-I-1
Craig Barron                         DA-0752-13-0688-I-1
Damen G. Burris                      DA-0752-13-0689-I-1
David Bolen                          DA-0752-13-1796-I-1
Delia Acosta                         DA-0752-13-0857-I-1
Delo W. Anderson                     DA-0752-13-0692-I-1
Dustin Dennis                        DA-0752-13-2248-I-1
George Duggins                       DA-0752-13-1054-I-1
Gregory Calvillo                     DA-0752-13-1729-I-1
Homer Adams                          DA-0752-13-0691-I-1
Jakeb Drew                           DA-0752-13-2094-I-1
James D. Brazeal                     DA-0752-13-1393-I-1
James Dunaway                        DA-0752-13-1550-I-1
Jeffery Culwell                      DA-0752-13-1735-I-1
Joseph Billus                        DA-0752-13-2241-I-1
Kenneth Blotz                        DA-0752-13-2238-I-1
Kerry D. Becker                      DA-0752-13-1262-I-1
Leroy Anderson                       DA-0752-13-2326-I-1
                                           8


Leslie Davis         DA-0752-13-2470-I-1
Martin Castaneda     DA-0752-13-0807-I-1
Michael Clark        DA-0752-13-1045-I-1
Peter S. Conser      DA-0752-13-2606-I-1
Peyton Berry         DA-0752-13-0853-I-1
Ramona Chandler      DA-0752-13-2463-I-1
Redena Alexander     DA-0752-13-3389-I-1
Robert Deardorff     DA-0752-13-0819-I-1
Ron Circo            DA-0752-13-0809-I-1
Shelly Chambers      DA-0752-13-1539-I-1
Steven E. Davis      DA-0752-13-2465-I-1
Steven S. Delk       DA-0752-13-0694-I-1
Tarry Boudreaux      DA-0752-13-2403-I-1
Theodore W. Dexter   DA-0752-13-2063-I-1
Tyran Battles        DA-0752-13-1355-I-1
                                                            9


                          APPENDIX B

                     TINKER AFB HEARING E-L
                       DA-0752-14-0293-I-1


Amy Luong                             DA-0752-13-1403-I-1
Barbara Ervin                         DA-0752-13-1274-I-1
Barel Laughlin                        DA-0752-13-1413-I-1
Bobby Irvin                           DA-0752-13-2141-I-1
Cameron Lange                         DA-0752-13-0856-I-1
Carmon M. Fogle                       DA-0752-13-0679-I-1
Daniel Gore                           DA-0752-13-1387-I-1
Edward Kuehn                          DA-0752-13-0869-I-1
Elvin Ervin                           DA-0752-13-1275-I-1
Eugene Herrington                     DA-0752-13-2213-I-1
James C. Lambert                      DA-0752-13-2239-I-1
James Fullbright                      DA-0752-13-0699-I-1
Jan Harden                            DA-0752-13-1353-I-1
Johnathan John                        DA-0752-13-2077-I-1
Lance Holtsclaw                       DA-0752-13-1289-I-1
Mark E. Kirby                         DA-0752-13-0683-I-1
Micheal Hively                        DA-0752-13-2067-I-1
Patrick M. Janeway                    DA-0752-13-2360-I-1
Patrick M. Judkins                    DA-0752-13-0682-I-1
Peter Lachance                        DA-0752-13-1332-I-1
Ramiro Larralde                       DA-0752-13-2245-I-1
Robert Farrar                         DA-0752-13-0697-I-1
Robert Harrell                        DA-0752-13-0732-I-1
Robert Henry                          DA-0752-13-0878-I-1
                                         10


Robert R. Hill     DA-0752-13-2306-I-1
Scott E. Guthrie   DA-0752-13-0678-I-1
Stephen A. Lang    DA-0752-13-3300-I-1
Steve Lane         DA-0752-13-2329-I-1
Steven Gregston    DA-0752-13-1341-I-1
Terrill Johnson    DA-0752-13-2273-I-1
Terry James        DA-0752-13-0680-I-1
                                                           11

                         APPENDIX C

                      Tinker Hearing M-R
                      DA-0752-14-0294-I-1


Angela F. Patterson                  DA-0752-13-1351-I-1
Arthur McCool                        DA-0752-13-2243-I-1
Brian McCoun                         DA-0752-13-1322-I-1
Derick Moore                         DA-0752-13-2237-I-1
Donald Mattingly                     DA-0752-13-2266-I-1
Dwayne A. Miller                     DA-0752-13-0855-I-1
Frank Mendoza                        DA-0752-13-2252-I-1
Harold A. McGee                      DA-0752-13-0735-I-1
Hong Kieu Nguyen                     DA-0752-13-2315-I-1
Jack Northcott                       DA-0752-13-1597-I-1
Jack R. Mc Swain                     DA-0752-13-0810-I-1
Jackie Randle                        DA-0752-13-2088-I-1
Jason ODell                          DA-0752-13-1600-I-1
Jerry D. Place                       DA-0752-13-2073-I-1
Kenneth Peters                       DA-0752-13-2259-I-1
Kimberly T. Nguyen                   DA-0752-13-1849-I-1
Latrida A. Mukes                     DA-0752-13-2282-I-1
Michial Robidoux                     DA-0752-13-2272-I-1
Mickey Phillips                      DA-0752-13-1621-I-1
Randy Perkins                        DA-0752-13-0736-I-1
Rodney Payne                         DA-0752-13-0733-I-1
Russell Murphy                       DA-0752-13-3297-I-1
Russell Noel                         DA-0752-13-3391-I-1
Shawn C. Petty                       DA-0752-13-1620-I-1
Travis L. Matthews                   DA-0752-13-1318-I-1
                                                            12


                         APPENDIX D

                       Tinker Hearing S-Z
                      DA-0752-14-0407-I-1


Blair L. Smith                        DA-0752-13-1650-I-1
Brett Ware                            DA-0752-13-0806-I-1
Bruce D. Sparks                       DA-0752-13-0684-I-1
Bruce Stout                           DA-0752-13-3395-I-1
Caleb White                           DA-0752-13-4570-I-1
Charles Stephens                      DA-0752-13-2330-I-1
Dana Waitman                          DA-0752-13-1687-I-1
Danny Warden                          DA-0752-13-3393-I-1
David Spaulding                       DA-0752-13-2249-I-1
James B. Taylor                       DA-0752-13-1665-I-1
James Sharry                          DA-0752-13-1406-I-1
Jeffrey A. Van Dorp                   DA-0752-13-4662-I-1
Jonathon Smith                        DA-0752-13-1652-I-1
Kelley Wood                           DA-0752-13-2930-I-1
Kevin Stanford                        DA-0752-13-2062-I-1
Lloyd Thompson                        DA-0752-13-1842-I-1
Mark Raymond Turner                   DA-0752-13-0864-I-1
Mark Sissons                          DA-0752-13-2368-I-1
Mark Voyles                           DA-0752-13-1407-I-1
Matthew Sawyer                        DA-0752-13-1643-I-1
Richard Todd                          DA-0752-13-2255-I-1
Ronald D. Vaughn                      DA-0752-13-2072-I-1
Ronald Stone                          DA-0752-13-1659-I-1
Ronnie Shaffer                        DA-0752-13-2374-I-1
                                        13


Russell Trotter   DA-0752-13-2235-I-1
Shane Wilson      DA-0752-13-3392-I-1
Sheila Verdugo    DA-0752-13-0737-I-1
Steve Wood        DA-0752-13-3299-I-1
Travis Wilson     DA-0752-13-2480-I-1
