685 F.2d 547 (D.C. Cir. 1982)
In early 1981 the Professional Air Traffic Controllers Organization, the recognized exclusive bargaining representative for air traffic controllers employed by the Federal Aviation Administration since the early 1970s, began negotiations with the FAA for a new collective bargaining agreement after an existing contract expired.1
A tentative agreement reached in June was rejected by the PATCO rank and file, and renewed negotiations set a strike deadline of Monday, August 3, 1981.2 On the morning of August 3 more than seventy percent of the nation's federally employed air traffic controllers walked off the job after PATCO called a nationwide strike.3
The government obtained restraining orders, secured civil and criminal contempt citations when the orders were not obeyed, and fired approximately 11,000 striking controllers who failed to return by 11:00 a.m. on August 5.4 On August 3 the FAA filed an unfair labor practice charge with the Federal Labor Relations Authority alleging a violation of 5 U.S.C. § 7116(b)(7). A complaint issued the same day and a hearing was noticed for August 10 before Chief Administrative Law Judge John H. Fenton.5
At the hearing the FLRA General Counsel presented testimony of picketing at Air Traffic Control Centers in Leesburg, Chicago, Ronkonkoma, Longmont, and Atlanta, attendance records showing only 2,308 of 9,304 scheduled controllers reported for work, photographs identifying striking controllers including local officers, and videotapes of PATCO National President Robert E. Poli announcing the strike would begin August 3 and later confirming it would continue.6 PATCO offered no evidence that a strike had not occurred, that the evidence showed only separate local strikes, or that it had attempted to prevent or stop the strike.7 The ALJ found PATCO called, participated in, and condoned the strike and recommended revocation of its exclusive recognition status.8
The FLRA heard oral argument on September 16 and issued seriatim opinions on October 22, 1981. All three members agreed PATCO had committed the unfair labor practices and that the expedited schedule did not violate due process, but they differed on the scope of remedial discretion under section 7120(f).9 PATCO petitioned for review in this court the same day.10 Allegations of improper ex parte contacts led the court to order a special evidentiary hearing before Administrative Law Judge John M. Vittone, held March 4 to March 17, 1982, examining contacts with FLRA members including a meeting involving the General Counsel, telephone calls from the Secretary of Transportation, and a dinner between Member Applewhaite and Albert Shanker.11 The court heard argument on the ex parte issues on April 13, 1982.12
Whether ex parte communications during the FLRA proceedings require vacation of the Authority's decision or remand for further proceedings?13
Under 5 U.S.C. § 557(d) and applicable case law, improper ex parte communications render agency decisions voidable rather than void.14 A court must weigh factors including the gravity of the contacts, whether they influenced the ultimate decision, whether any party benefited, the opportunity for response by opposing parties, and whether vacation would serve a useful purpose before ordering remand.15
No. The special evidentiary hearing before Judge Vittone established that the contacts, including the August 10 meeting involving General Counsel Gordon, Secretary Lewis's telephone calls to Members Frazier and Applewhaite, and the September 21 dinner between Member Applewhaite and Albert Shanker, had no effect on the FLRA Members' ultimate decision on the merits.16 Applying the equitable factors to the established facts of the expedited hearing schedule, the ALJ's findings of no influence, and the absence of any benefit to the FAA or General Counsel from the contacts, the court concluded that the communications did not irrevocably taint the Authority's decisionmaking process.17
The ex parte communications do not require vacation of the Authority's decision or remand for further proceedings.18
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Chief Judge Robinson concurred in the result. He emphasized that the Applewhaite-Gordon discussion constituted a prohibited ex parte contact.19 Gordon remained and participated in a fifteen-minute conversation on a pivotal legal issue in the PATCO case while his office was prosecuting the complaint.20
Robinson viewed the Secretary Lewis calls as troubling because they bypassed established procedures and could be perceived as political pressure.21 He condemned Member Applewhaite's failure to terminate the Shanker dinner discussion of the merits as a serious lapse by a decisionmaker who must avoid even the appearance of impropriety.22
Circuit Judge MacKinnon concurred in the judgment. He stressed that the number of ex parte contacts disclosed at the remand hearing is appalling, as are the statements by counsel that such contacts were nothing more than what is normal and usual in administrative agencies and even in courts of law. That statement is categorically denied insofar as our courts are concerned.
If that ever turns out to be true some very severe penalties are going to be meted out. The conduct of Shanker was the most serious, but the telephone calls by the Secretary of Transportation were also objectionable. Union and cabinet officers must realize that agency adjudicators are not their handmaidens.
Ex parte contacts that attempt to back door the adjudicative process are highly improper and illegal under 18 U.S.C. § 1505. He viewed Shanker as an interested person whose conduct was highly improper.23 Nevertheless, he agreed that the contacts did not affect the final decision.24
Whether the FLRA's finding that PATCO called, participated in, and condoned a strike against the FAA is supported by substantial evidence?25
The court reviews the FLRA's finding that PATCO called, participated in, and condoned a strike under the substantial evidence standard.26
Yes. The FLRA General Counsel presented testimony establishing picketing at Air Traffic Control Centers in Leesburg, Chicago, Ronkonkoma, Longmont, and Atlanta, attendance records showing only 2,308 of 9,304 scheduled controllers reported for work on August 3, photographs identifying striking controllers including local officers, and videotapes of President Poli announcing that the strike would begin on August 3 and later confirming it would continue.27 PATCO offered no evidence that a strike had not occurred, that the evidence showed only separate local strikes, or that it had attempted to prevent or stop the strike, and these established facts provide substantial evidence supporting the finding that PATCO called, participated in, and condoned the strike.28
The FLRA's finding that PATCO called, participated in, and condoned a strike against the FAA is supported by substantial evidence.29
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Circuit Judge MacKinnon added that PATCO's claim of inadequate time to prepare a defense demonstrated the union's irresponsibility.30 PATCO had been threatening a nationwide strike for a long time and should have had its substantiation ready immediately to defend such a monstrous attempt to paralyze the nation's principal means of transporting its citizens and its mail. He noted that the strike violated a prior 1970 injunction obtained in New York of which PATCO was aware and which it had unsuccessfully attempted to vacate.
PATCO is a repeat offender whose prior misconduct further justified the Authority's decision.
Whether the FLRA properly exercised its discretion under section 7120(f) in revoking PATCO's exclusive recognition status?31
Section 7120(f) of the Civil Service Reform Act directs that the Authority shall revoke the exclusive recognition status of a labor organization found to have willfully and intentionally violated the strike prohibition in section 7116(b)(7).32 Alternatively, the Authority may take other appropriate disciplinary action.33 The statutory language and legislative history indicate that revocation is the preferred remedy for clear and serious violations.34
Yes. After the FLRA Members agreed that PATCO had committed the unfair labor practices by calling, participating in, and condoning the strike, Members Frazier and Applewhaite concluded that revocation was required because PATCO made no effort to prevent or stop the illegal activity.35 Chairman Haughton ultimately concurred after PATCO failed to end the strike or disavow it within the time allowed.36 The established facts of the nationwide walkout by over seventy percent of controllers, the absence of any compliance efforts by PATCO, and the repeat nature of the violation support the Authority's exercise of discretion to impose the preferred remedy of revocation rather than a lesser sanction.37
The FLRA properly exercised its discretion under section 7120(f) in revoking PATCO's exclusive recognition status.38
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Circuit Judge MacKinnon emphasized that revocation was almost automatic once a willful violation was found.39 The statute provides that it shall be an unfair labor practice for a labor organization to call or participate in a strike. Labor organizations that violate this section by willfully engaging in prohibited strikes are subject to the penalties in section 7120(f).
With such a finding, revocation of PATCO's exclusive recognition status was almost automatic. Subsection (2) allowing other disciplinary action addresses situations such as wildcat strikes or diffused responsibility where the union leadership made every effort to stop the activity or where responsibility is unclear. None of those situations applied to PATCO's clear and intentional nationwide strike.40
The Authority's decision was clearly appropriate.