United States v. PROFESSIONAL AIR TRAFFIC, ETC.

• Decision Date: 15 December 1980
• Docket Number: No. 80 C 4390.,80 C 4390.
• Citation: 504 F. Supp. 432
• Parties: UNITED STATES of America, Plaintiff, v. PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION (PATCO) et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

504 F. Supp. 432

UNITED STATES of America, Plaintiff, v. PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION (PATCO) et al., Defendants.

No. 80 C 4390.

United States District Court, N. D. Illinois, E. D.

December 15, 1980.

Thomas P. Sullivan, U. S. Atty., Frederick H. Branding, Linda A. Wawzenski, Asst. U. S. Attys., Chicago, Ill., for plaintiff.

Richard J. Leighton, Leighton, Conklin, Lemov & Jacobs, Gary Ethan Klein, Washington, D. C., Harvey Nathan, Chicago, Ill., for defendants.

MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

This case of first impression requires a resolution of the tension between the forces supporting judicial control over the congressional policy against strikes by federal employees and the forces supporting the congressional policy for administrative resolution of unfair labor practices by federal employees' labor unions. Defendants Professional Air Traffic Controllers Organization and its O'Hare Local No. 316 (though they are separate entities, for convenience this opinion will refer to them collectively by use of the singular term "PATCO") and a number of their officers have been sued by the United States for a preliminary and permanent injunction against a claimed slowdown (alleged to be equivalent to a strike) of air traffic controllers at Chicago's O'Hare Field. PATCO has moved to dismiss the action for lack of jurisdiction. For the reasons stated in this memorandum opinion and order PATCO's motion is granted.

Facts¹

PATCO is a labor organization representing air traffic controller employees of the Federal Aviation Administration ("FAA"). On July 31, 1980 PATCO, aided and abetted by the individual defendants, organized and directed a concerted slowdown of the air traffic controllers working at Chicago's O'Hare International Airport. That slowdown is characterized as a "strike" against the operations of the air traffic control system, creating a concerted obstruction to the movement of air traffic within this District and throughout substantial areas of the United States. It has significantly impaired such operations and air traffic movement, causing great loss and inconvenience to the public and the airlines.

When the United States brought this action August 18, 1980 Judge Bua of this Court entered a temporary restraining order prohibiting PATCO, the individual defendants and PATCO's members from "continuing, encouraging, ordering, aiding, engaging, obstructing or taking any part in any work stoppage or slowdown" (TRO ¶ 1(a)). Since that time the parties have consented to the extension of the TRO from time to time, most recently through January 20, 1981.

Jurisdictional Section Invoked by the United States

PATCO has now moved to dismiss the Complaint under Fed.R.Civ.P. 12(b)(1) on the theory that Congress has vested exclusive jurisdiction over the conduct complained of in the Federal Labor Relations Authority ("FLRA"). For the United States, on the other hand, the case is one for the straightforward invocation of the grant of jurisdiction under 28 U.S.C. § 1345:

Except as otherwise provided by Act of Congress, the district courts shall have original jurisdiction of all civil actions, suits or proceedings commenced by the United States, or by any agency or officer thereof expressly authorized to sue by Act of Congress.

Thus the question may be simply put as whether Title VII of the Civil Service Reform Act of 1978, 5 U.S.C. §§ 7101 ff. ("Title VII"), which created the FLRA, is an Act of Congress that "otherwise provides." That question is not as simply answered, for it requires analysis not only of Title VII but of two pre-existing enactments, 5 U.S.C. § 7311 and 18 U.S.C. § 1918.

Title VII and FLRA Jurisdiction

Under 5 U.S.C. § 7116(b):

(b) For the purpose of this chapter, it shall be an unfair labor practice for a labor organization—

* * * * * *

(7)(A) to call, or participate in, a strike, work stoppage, or slowdown ... or (B) to condone any activity described in subparagraph (A) of this paragraph by failing to take action to prevent or stop such activity....

That statutory language is tracked almost verbatim by the Complaint, which alleges that each of the entities comprising PATCO "organized, directed, and commenced a strike against the operations of the air traffic control system and the movement of air traffic within the district and throughout substantial areas of the United States" (¶ 10), that "This strike has taken the form of a concerted slowdown and a concerted obstruction to the movement of aircraft in air commerce or air transportation" (¶ 12) and that "PATCO has failed to take any action to prevent or to stop the illegal actions of its members at O'Hare" (¶ 14).

There is therefore no question that the Complaint charges an unfair labor practice under Title VII. Indeed, two days preceding the filing of this action FAA filed a charge with the FLRA, complaining against PATCO of the same actions alleged in the Complaint in virtually identical language, charging that such conduct is a violation of 5 U.S.C. § 7116(b)(7)(A) and (B) and concluding:

Because such illegal activity is continuing or expected to continue and because such illegal activity has and will interfere with the ability of the FAA to carry out its essential functions, we request the General Counsel, FLRA, seek appropriate temporary relief (including a restraining order) under 5 U.S.C. 7123(d).

Accordingly FLRA jurisdiction over the controversy between the United States and PATCO is uncontroverted.²

Purpose and History of Title VII

Title VII has created a structure and procedure for the investigation and prosecution of unfair labor practices in the federal sector, including its own provisions for judicial review of FLRA's decisions in a Court of Appeals, not a District Court (5 U.S.C. § 7123(b)). It specifically empowers FLRA to petition a District Court for necessary temporary relief (including a TRO) upon issuance of an unfair labor practice complaint (5 U.S.C. § 7123(d)). Those provisions embrace the only role given the federal courts under the statute, substantially (and deliberately, as will be discussed below) paralleling the structure of the National Labor Relations Act applicable to the private sector.

As for the question of intended exclusivity, initial scrutiny of the statute itself discloses the following role for FLRA (5 U.S.C. § 7105(a)(1), emphasis added):

FLRA shall provide leadership in establishing policies and guidance relating to matters under this chapter, and, except as otherwise provided, shall be responsible for carrying out the purpose of this chapter.³

Section 7101(b) defines "the purpose of this chapter to prescribe certain rights and obligations of the employees of the Federal Government and to establish procedures which are designed to meet the special requirements and needs of the Government." It mandates that the provisions "should be interpreted in a manner consistent with the requirement of an effective and efficient Government." And like the counterpart NLRB, Section 7105(a)(2)(G) empowers FLRA to "conduct hearings and resolve complaints of unfair labor practices under section 7118."

Before the enactment of Title VII, federal sector labor-management relations were governed by Executive Order 11491, as amended (the successor to Executive Order 10988). That Order provided for an exclusively administrative process, with the Federal Labor Relations Council having limited review of decisions regarding alleged unfair labor practice complaints (decided initially by the Assistant Secretary of Labor for Labor-Management Relations). There was no place for the federal judiciary in the structure or procedure for dealing with claimed unfair labor practices in federal employment. Stevens v. Carey, 483 F.2d 188, 191 (7th Cir. 1973).

Congress enacted Title VII to establish a statutory base in place of the dependency on Executive Orders. As stated in the reprinted Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978, 96th Cong. 1st Sess. (Comm. Print No. 96-7) (hereinafter "Legis. Hist.") at 684:

Title VII of the bill establishes a statutory basis for labor-management relations in the Federal service. Since 1962, Executive Orders have governed the collective bargaining relationship in the Federal sector. Title VII would for the first time enact into law the rights and obligations of the parties to this relationship—employees, agencies, and labor organizations.

Title VII, in concert with the President's Reorganization Plan No. 2 of 1978, also constructs a new framework for the conduct of Federal labor-management relations. The Federal Labor Relations Authority, an independent establishment in the executive branch, together with its Office of General Counsel, will be primarily responsible for the administration of the program and the enforcement of the policies reflected in Title VII.

FLRA was intentionally cast in the mold of the NLRB (id. at 687):

Section 7104, in concert with Reorganization Plan No. 2 of 1978, establishes and describes the Federal Labor Relations Authority, an independent establishment in the executive branch. The committee intends that the Authority's role in Federal sector labor-management relations be analogous to that of the National Labor Relations Board in the private sector. Functions which, under the Executive Order 11491 program, were distributed among various entities (such as the Civil Service Commission and the Department of Labor) are to be consolidated under the Authority.

One of the features of the NLRA most desired by Congress to be imported into federal sector employment relationships was that of defined judicial review in the Courts of Appeal. As stated by Congressman William Ford (Legis.Hist. 856):⁴

One of the central elements of a fair labor relations program is effective impartial administration. Title VII provides for the creation of an

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