Professional Air Traffic Controllers Organization v. Federal Labor Relations Authority

MacKINNON, Circuit Judge

(concurring).

Subject to the fact that I might differ in the characterization of some of the ex parte contacts, I concur in Judge Edwards’ opinion but wish to record some additional comments.

1.While the immediate strike was against the Federal Aviation Authority (FAA) it was really against the United States, and the principal victims were the citizens of the United States. Such was clearly the intention of the Professional Air Traffic Controllers’ Organization (PATCO and Union). The scheme of the strike was that the convenience of the nation’s 265 million citizens would be held hostage to the Union’s demands. This is an essential characteristic of most strikes against the government of the United States. The strikers attempt to use the monopoly position that government occupies in various fields as a stranglehold to extort their demands. PATCO obviously believed that its strike would effectively bring the nation to its knees and force the government to give in to its demands. It was a flagrant attempt to misuse the exclusive control over the nation’s airways that government has established to serve its citizens.

2. The Union contends that it did not have adequate time to prepare its factual and legal defense to the unfair labor practice charges. If this claim is valid it demonstrates the irresponsibility of the Union. PATCO had been threatening a nationwide strike for a long time. If it was serious in this threat, and its subsequent actions indicate that it was, PATCO should have had the complete substantiation for its position ready, and immediately available, to defend such a monstrous attempt to paralyze the entire nation’s principal means of transporting its citizens and its mail.

3. The number of ex parte contacts that were 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, as described above, was the most serious, but the telephone calls by the Secretary of Transportation were also objectionable. Union and cabinet officers, and all citizens, will have to realize that officials of the administrative agencies engaged in adjudicating rights and interests are not their hand maidens. In deciding such cases the government officials act in a quasi-judicial capacity and ex parte contacts that attempt to “back door” the adjudicative process, with respect to the merits or discipline, are highly improper and illegal. In this connection 18 U.S.C. § 1505 should be noted. This section of the Criminal Code provides that it is an offense if *173 one “corruptly . . . endeavors to influence, obstruct or impede the due and proper administration of the law under which [a] proceeding is being had before [an] . . . agency of the United States ...” (emphasis added). Private contacts with agency officials, with respect to pending adjudicatory matters, by interested parties or their agents, that endeavor to affect the decisional process, however subtle such contract may be, are corrupt endeavors to influence the “due and proper administration of the law” and those who so attempt may be indicted. The authorized punishment is imprisonment for not more than five years, or a $5,000 fine, or both. 18 U.S.C. § 1505 .

4. Shanker argues that his dinner with member Applewhaite “had no effect on the decision” and hence is of no moment. That is like the man charged with attempted murder asserting the indictment should be dismissed because his shot missed the intended victim. In my opinion Shanker and his Teacher’s Union were both “interested parties” within the meaning of 5 U.S.C. 557(d) (1976) of the Administrative Procedure Act.

5. As to the remedy here, it is my opinion that Congress indicated by the terminology it used, and in the applicable legislative history, that “revocation” of the union’s certification was the preferred remedy for unlawful strikes.

The Federal Labor Management Relations Act provides:

§ 7116(b) .... [I]t shall be an unfair labor practice for a labor organization

(7)(A) to call, or participate in, a strike, work stoppage, or slowdown, or picketing of an agency in a labor-management dispute if such picketing interferes with an agency’s operations, or (B) to condone any activity described in subparagraph (a) of this paragraph by failing to take action to prevent or stop such activity . . .

5 U.S.C. § 7116 (b)(7).

Labor organizations that violate this section of the Act by willfully engaging in prohibited strikes, and strike related activity, are subject to the penalties imposed by Congress in § 7120(f). This section of the statute is clear and distinct. It provides:

(f) In the case of any labor organization which by omission or commission has willfully and intentionally with regard to any strike, work stoppage, or slowdown, violated section 7116(b)(7) of this title, the [Federal Labor Relations] Authority shall, upon an appropriate finding by the Authority of such violation—

(1) revoke the exclusive recognition status of the labor organization, which shall then immediately cease to be legally entitled and obligated to represent employees in the unit; or

(2) take any other appropriate disciplinary action.

5 U.S.C. § 7120 (f) (emphasis added).

PATCO was in clear violation of § 7116(b)(7) and the Authority so found. With such finding, revocation of PATCO’s “exclusive recognition status” was almost automatic and that was the penalty imposed. Its prior misconduct (see ¶ 6, infra) was further justification for the decision of the Authority. The Union attacks this revocation of its exclusive recognition status as being too harsh and contends that subsection (f)(2) confers a broad discretion in the Authority to impose some lesser punishment. Be that as it may, the Authority’s decision was clearly appropriate. When Congress wrote the statute it clearly indicated, by placing decertification in the forefront of the remedy section, that revocation was to be preferred. The reference to other appropriate disciplinary action was added for completeness. There is no indication that Congress intended other disciplinary action to be taken where the violation was clear. Subsection (2) seems to be addressed more to situations where the responsibility for a strike might be diffused, unclear, or not properly chargeable to the Union as would be the case with a wildcat strike, or a strike by a limited number of union members, or locals, that the union leadership were making every valid effort to stop, or where the strike might have resulted from an improper lock out, or in any other instance of diminished Union responsibility. The argument that subsection (2) vests a broad discretion is directed at reducing the *174 disciplinary action, and this case is not an appropriate one for any lesser discipline.

6. It is also important to remember that subject strike by PATCO violated a prior injunction obtained in 1970 in New York. The union knew this and had previously attempted to have the court vacate that 1970 injunction. Then, having failed to have the injunction set aside, they struck against the government and in violation of the injunction. PATCO is a repeat offender.