Professional Air Traffic Controllers Organization v. Federal Labor Relations Authority, No. 81-2135

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBefore ROBINSON, Chief Judge, MacKINNON and EDWARDS; HARRY T. EDWARDS; Following our remand on the ex parte communications issue, John M. Vittone, an Administrative Law Judge with the Civil Aeronautics Board, was appointed to preside over an evidenti
Citation685 F.2d 547
Docket NumberNo. 81-2135
Decision Date11 June 1982
Parties110 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.

Page 547

685 F.2d 547
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.
No. 81-2135.
United States Court of Appeals,
District of Columbia Circuit.
Argued Dec. 3, 1981 and April 13, 1982.
Decided June 11, 1982.

Page 549

Petition for Review of an Order of the Federal Labor Relations authority.

Review of Findings of Specially Appointed Administrative Law Judge.

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.

Barry L. Leibowitz, Washington, D. C., for intervenor, Ronald W. Haughton.

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.

Concurring opinions filed by Chief Judge SPOTTSWOOD W. ROBINSON, III and Circuit Judge MacKINNON.

 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
                

Page 550

HARRY T. EDWARDS, Circuit Judge:

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

Page 551

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.

I. BACKGROUND

A. The PATCO Strike

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

Page 552

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.

B. Federal Labor Relations Authority Proceedings

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 and that PATCO was on strike. Attendance records presented by FAA witnesses indicated that only 2,308 of the 9,304 air traffic controllers scheduled to work nationwide on August 3 actually reported. ALJ at 3. FAA officials from the various facilities also identified striking air traffic controllers, including PATCO Local officers, in photographs of the picketing outside of the...

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71 practice notes
  • Hueter v. Kruse, Civ. 21-00226 JMS-KJM
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Hawaii)
    • December 17, 2021
    ...against improper ex parte communications with judicial officers. See, e.g., Pro. Air Traffic Controllers Org. v. Fed. Lab. Rels. Auth., 685 F.2d 547, 570 (D.C. Cir. 1982). It is well-settled that such a “‘procedural injury' can constitute an injury in fact for the purpose of establishing st......
  • Shays v. Federal Election Com'n, No. 04-5352.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 15, 2005
    ...Electric Power Supply Ass'n v. FERC, 391 F.3d 1255, 1262 (D.C.Cir.2004) ("EPSA") (quoting Prof'l Air Traffic Controllers Org. v. FLRA, 685 F.2d 547, 563 (D.C.Cir.1982) ("PATCO")) (upholding repeat litigant's standing to challenge allegedly unlawful agency rules on ex parte communication); s......
  • Louisiana Ass'n of Independent Producers and Royalty Owners v. F.E.R.C., Nos. 91-1026
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 10, 1992
    ...status of the case or general background discussions, are not prohibited. See, e.g., Professional Air Traffic Controllers Org. v. FLRA, 685 F.2d 547, 563 Moreover, acting upon the chance that the industry representatives were attempting subtly and indirectly to influence the outcome of this......
  • National Treasury Employees Union v. Chertoff, No. 05-5436.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 27, 2006
    ...7114(a)(4) & (b). Additionally, employees in the federal sector are forbidden from striking, Prof'l Air Traffic Controllers Org. v. FLRA, 685 F.2d 547, 550 (D.C.Cir.1982), so they can add no economic leverage to their bargaining demands as can employees in the private sector. And, most impo......
  • Request a trial to view additional results
69 cases
  • Hueter v. Kruse, Civ. 21-00226 JMS-KJM
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Hawaii)
    • December 17, 2021
    ...against improper ex parte communications with judicial officers. See, e.g., Pro. Air Traffic Controllers Org. v. Fed. Lab. Rels. Auth., 685 F.2d 547, 570 (D.C. Cir. 1982). It is well-settled that such a “‘procedural injury' can constitute an injury in fact for the purpose of establishing st......
  • Shays v. Federal Election Com'n, No. 04-5352.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 15, 2005
    ...Electric Power Supply Ass'n v. FERC, 391 F.3d 1255, 1262 (D.C.Cir.2004) ("EPSA") (quoting Prof'l Air Traffic Controllers Org. v. FLRA, 685 F.2d 547, 563 (D.C.Cir.1982) ("PATCO")) (upholding repeat litigant's standing to challenge allegedly unlawful agency rules on ex parte communication); s......
  • Louisiana Ass'n of Independent Producers and Royalty Owners v. F.E.R.C., Nos. 91-1026
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 10, 1992
    ...status of the case or general background discussions, are not prohibited. See, e.g., Professional Air Traffic Controllers Org. v. FLRA, 685 F.2d 547, 563 Moreover, acting upon the chance that the industry representatives were attempting subtly and indirectly to influence the outcome of this......
  • National Treasury Employees Union v. Chertoff, No. 05-5436.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 27, 2006
    ...7114(a)(4) & (b). Additionally, employees in the federal sector are forbidden from striking, Prof'l Air Traffic Controllers Org. v. FLRA, 685 F.2d 547, 550 (D.C.Cir.1982), so they can add no economic leverage to their bargaining demands as can employees in the private sector. And, most impo......
  • Request a trial to view additional results
1 books & journal articles
  • Dicey’s Ghost and Administrative Law
    • United States
    • Administration & Society Nbr. 34-1, March 2002
    • March 1, 2002
    ...to uni-versal problems. Supreme Court Journal,2, 26-39.Local Government Board v.Arlidge, 1 K.B. 160 (1914); A.C. 120 (1915).PATCO v. FLRA, 685 F2d 547 (1982).Pillsbury v. FTC, 354 F2d 952, 5th Cir.(1966).Portland Audobon Society v. Endangered Species Committee, 984 F2d 1534, 9th Cir.(1993).......

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