Professional Air Traffic Controllers Organization v. Federal Labor Relations Authority
| Citation | 685 F.2d 547 |
| Decision Date | 11 June 1982 |
| Docket Number | No. 81-2135,81-2135 |
| Parties | 110 L.R.R.M. (BNA) 2676, 222 U.S.App.D.C. 97 PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent, Federal Aviation Administration, Ronald W. Haughton, Albert Shanker, Henry B. Frazier, III, Leon B. Applewhaite, Intervenors. PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent, Federal Aviation Administration, Intervenor. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Richard J. Leighton, Washington, D. C., with whom Neal Goldfarb, Washington, D. C., was on the brief, for petitioner. R. Russell Bailey, Washington, D. C., also entered an appearance for petitioner.
Anthony J. Skirlick, Jr., pro se, as amicus curiae urging reversal.
Mary Elizabeth Medaglia, Acting Sol., Federal Labor Relations Authority, Washington, D. C., with whom William E. Persina and William R. Tobey, Attys., Federal Labor Relations Authority, Washington, D. C., were on the brief, for respondent.
Mark H. Gallant, Atty., Dept. of Justice, Washington, D. C., with whom Stanley S. Harris, U. S. Atty., Charles F. C. Ruff, U. S. Atty., at the time the briefs were submitted, William Kanter and Frederick Geilfuss, Attys., Dept. of Justice, Washington, D. C., were on the brief, for intervenor, F. A. A.
James R. Rosa, Washington, D. C., was on the brief for amicus curiae, American Federation of Government Employees, urging reversal.
Stephen A. Weitzman, Washington, D. C., for amici curiae, Hugh McClure, John Hough and Jerrold Tierney, urging remand.
John G. Kester, Michael S. Sundermeyer, Washington, D. C., for intervenor, Henry B. Frazier, III.
Nathan Lewin, Washington, D. C., with whom Jonathan B. Sallet, Washington, D. C., was on the brief, for intervenor, Albert Shanker.
Peter G. Nash, Washington, D. C., for intervenor, Leon B. Applewhaite.
Before ROBINSON, Chief Judge, MacKINNON and EDWARDS, Circuit Judges.
Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.
TABLE OF CONTENTS
Page
I. Background .................................... 551
A. The PATCO Strike ........................... 551
B. Federal Labor Relations Authority
Proceedings ................................ 552
II. Ex Parte Communications During the FLRA
Proceedings ................................... 556
A. A.L.J. Vittone's Findings .................. 557
1. The Meeting Between Member
Applewhaite and FLRA General
Counsel Gordon .......................... 557
2. Secretary Lewis' Telephone Calls
to Members Frazier and Applewhaite ...... 558
3. Member Applewhaite's Dinner with
Albert Shanker .......................... 559
B. The Parties' Positions ..................... 561
C. Applicable Legal Standards ................. 561
1. The Statutory Prohibitions of Ex
Parte Contacts and the FLRA
Rules ................................... 561
2. Remedies for Ex Parte Communications .... 564
D. Analysis of the Alleged Ex Parte
Communications with FLRA Members ........... 565
1. The Meeting Between Member
Applewhaite and FLRA General
Counsel Gordon .......................... 566
2. Secretary Lewis' Telephone Calls
to Members Frazier and Applewhaite ...... 568
3. Member Applewhaite's Dinner with
Albert Shanker .......................... 569
E. Member Applewhaite Alleged "Personal
Interest" in the PATCO Case ................ 573
F. Conclusion ................................. 574
III. PATCO's Violation of the Ban on Federal
Employee Strikes .............................. 575
A. The Scope of Review ........................ 575
B. Violation of Section 7116(b)(7)(A) ......... 576
C. Violation of Section 7116(b)(7)(B) ......... 577
IV. Revocation of PATCO's Exclusive Recognition
Status ........................................ 578
A. The FLRA's Discretion Under Section
7120(f) .................................... 578
1. The Statutory Basis of the FLRA's
Revocation Power ........................ 579
2. The Legislative History of the
FLRA's Revocation Power ................. 580
B. The FLRA's Exercise of Its Discretion ...... 585
C. Evidence of Mitigating Factors ............. 586
V. Arguments of the Amici Curiae ................. 589
A. Arguments of the American Federation
of Government Employees .................... 589
B. Argument of Anthony J. Skirlick, Jr......... 590
VI. Conclusion .................................... 591
Federal employees have long been forbidden from striking against their employer, the federal government, and thereby denying their services to the public at large. 1 The United States Code presently prohibits a person who "participates in a strike ... against the Government of the United States" from accepting or holding a position in the federal government, 5 U.S.C. § 7311(2) (1976), and violation of this section is a criminal offense, 18 U.S.C. § 1918(3) (1976). Newly hired federal employees are required to execute an affidavit attesting that they have not struck and will not strike against the government, 5 U.S.C. § 3333(a) (1976). In addition, since the inception of formal collective bargaining between federal employee unions and the federal government, unions have been required to disavow the strike as an economic weapon. 2 Since 1969, striking has been expressly designated a union unfair labor practice. 3 In 1978, Congress enacted the Civil Service Reform Act, Title VII of which provides the first statutory basis for collective bargaining between the federal government and employee unions. Title VII in no way reduced the existing legal proscriptions against strikes by federal employees and unions representing employees in the federal service. Rather, the Act added a new provision applicable to federal employee unions that strike against the government. Under section 7120(f) of Title VII, Congress provided that the Federal Labor Relations Authority ("FLRA" or "Authority") shall "revoke the exclusive recognition status" of a recognized union, or "take any other appropriate disciplinary action" against any labor organization, where it is found that the union has called, participated in or condoned a strike, work stoppage or slowdown against a federal agency in a labor-management dispute. 5 U.S.C. § 7120(f) (Supp. IV 1980).
In this case we review the first application of section 7120(f) by the FLRA. After the Professional Air Traffic Controllers Organization ("PATCO") called a nationwide strike of air traffic controllers against the Federal Aviation Administration ("FAA") in the summer of 1981, the Authority revoked PATCO's status as exclusive bargaining representative for the controllers. For the reasons set forth below, we affirm the decision of the Authority.
The Professional Air Traffic Controllers Organization has been the recognized exclusive bargaining representative for air traffic controllers employed by the Federal Aviation Administration since the early 1970s. Faced with the expiration of an existing collective bargaining agreement, PATCO and the FAA began negotiations for a new contract in early 1981. A tentative agreement was reached in June, but was overwhelmingly rejected by the PATCO rank and file. Following this rejection, negotiations began again in late July. PATCO announced a strike deadline of Monday, August 3, 1981.
Failing to reach a satisfactory accord, PATCO struck the FAA on the morning of August 3. Over seventy percent of the nation's federally employed air traffic controllers walked off the job, significantly reducing the number of private and commercial flights in the United States. 4
In prompt response to the PATCO job actions, the Government obtained restraining orders against the strike, 5 and then civil and criminal contempt citations when the restraining orders were not heeded. 6 The
Government also fired some 11,000 striking air traffic controllers who did not return to work by 11:00 a. m. on August 5, 1981. 7 In addition, on August 3, 1981, the FAA filed an unfair labor practice charge against PATCO with the Federal Labor Relations Authority. On that same day, an FLRA Regional Director issued a complaint on the unfair labor practice charge, alleging strike activity prohibited by 5 U.S.C. § 7116(b)(7) (Supp. IV 1980) and seeking revocation of PATCO's certification under the Civil Service Reform Act. The complaint noticed a hearing for one week later, August 10, 1981. Complaint and Notice of Hearing, Jt. App. 9-11.
John H. Fenton, Chief Administrative Law Judge of the FLRA, conducted hearings on the unfair labor practice charge on the afternoon of August 10. The General Counsel of the FLRA presented testimony establishing that on the morning of August 3 pickets assembled at entrances to Air Traffic Control Centers in Leesburg, Virginia, Chicago, Illinois, Ronkonkomo, New York, and Longmont, Colorado, and at the Airport Tower in Atlanta, Georgia. In each instance, the picketers carried signs that informed the public that they were air traffic controllers belonging to a particular PATCO Local...
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