Professional Air Traffic Controllers Organization v. Federal Labor Relations Authority

The APA's ex parte-contact prohibition applies in formal FLRA unfair-labor-practice adjudications. It bars off-the-record communications relevant to the merits between agency decisionmakers and interested persons outside the agency, while allowing genuine status inquiries and other communications not bearing on the merits. The governing concern is both the appearance of fair, record-based decisionmaking and the parties' ability to know and answer arguments made to the decisionmaker.

An improper ex parte contact makes an agency decision voidable, not automatically void. The court considers the seriousness of the contact, its possible influence on the outcome, whether the communicator benefited from the result, whether opposing parties lacked a meaningful opportunity to respond, and whether a remand would accomplish anything useful.

The discussion in Member Applewhaite's office involving FLRA General Counsel Gordon was at least arguably improper because the General Counsel was prosecuting the case and the discussion concerned the legal question of remedies for a striking union. But the contact was inadvertent, general, brief, and did not address the particular facts of PATCO's case or reveal either participant's substantive position. It therefore did not unfairly advantage the prosecution or taint the result.

Secretary Lewis's calls to Members Frazier and Applewhaite, urging speedy treatment and reporting that meaningful settlement efforts were not underway, were troubling because a procedural request can be a subtle effort to influence an adjudication. Yet the calls did not affect the merits, and Applewhaite directed the FAA to proceed through a written motion. PATCO responded to that motion, the FLRA considered the parties' filings, and PATCO showed neither prejudice from the six-day reduction in the filing period nor any additional argument it would have made.

Albert Shanker was an interested person because, as a leading public-sector union official who had publicly advocated against severe discipline for PATCO, he had a special interest beyond that of the general public. His effort at dinner to persuade Applewhaite against revocation was plainly improper, and Applewhaite should have stopped the discussion once it turned to the pending case. Still, no threats, promises, or disclosure of Applewhaite's vote occurred; the final decision rejected Shanker's preferred outcome; the arguments largely tracked PATCO's arguments already presented on the record; and the special-hearing findings showed no ultimate effect on the decision.

Applewhaite's acknowledgment that he was concerned about reappointment and possible criticism from either side did not establish a disqualifying personal interest or bias. Agency adjudicators are presumed honest and able to decide on the record absent a strong contrary showing. The record showed no bargain with administration officials, no discussion of PATCO in contacts concerning reappointment, and no reason to disbelieve Applewhaite's testimony that he would decide the case on its merits.

A remand would have been futile. The special hearing fully explored the contacts, the findings were untainted, the FLRA had not changed the ALJ's factual findings, and the remaining principal questions were legal questions subject to independent judicial review.

Under § 7123(c), FLRA factual findings are conclusive if supported by substantial evidence on the record as a whole. The reviewing court does not choose between fairly conflicting views of the evidence; it asks whether the agency's inference is rationally supported by the record.

The FLRA had evidence of simultaneous picketing at multiple FAA facilities, picket signs identifying PATCO locals as on strike, identification of controllers and local officers among picketers, and nationwide mass absenteeism. That evidence supported an inference of a coordinated national strike rather than unrelated local wildcat actions.

PATCO was the exclusive representative for the nationwide bargaining unit and had conducted national contract negotiations with the FAA. The FLRA could reasonably connect the nationwide bargaining relationship, coordinated strike activity, and mass absenteeism to the national union.

President Poli's public statements reinforced that inference. He announced that a strike would begin on August 3 if stated conditions were met, and after the strike began he declared that it would continue. PATCO offered no contrary evidence that the action was only a set of independent local strikes or that the national union had not participated.

Section 7116(b)(7)(B) makes it an unfair labor practice for a union to condone prohibited strike activity by failing to take action to prevent or stop it. Once the General Counsel showed the existence of a strike involving PATCO, the union had to come forward with evidence of its own efforts to stop or prevent that activity. This allocation is sensible because the union's own efforts are peculiarly within its control, and the General Counsel should not be required to prove the negative proposition that the union did nothing.

The affirmed finding that PATCO called or participated in the strike established that the national union knew of the strike and had a statutory obligation to attempt to stop it. The FLRA also could take official notice that PATCO and its president had been held in civil contempt on August 3 for violating a restraining order against the strike.

PATCO offered no evidence that it tried to prevent the strike before it began or to stop it while it was underway. Even assuming that the post-August 5 mass firings made later compliance impossible, that would not erase PATCO's failure to act before the firings or during the strike's first two days.

Section 7120(f) requires the FLRA to impose some discipline when it finds that a union willfully and intentionally violated the no-strike provision. But the statute expressly gives the Authority two alternatives: revoke exclusive recognition or take any other appropriate disciplinary action. That language necessarily gives the FLRA some remedial choice.

The legislative history confirms that Congress rejected the Senate's mandatory-revocation proposal. The conference committee instead authorized discipline other than decertification and referred to a wildcat strike as one example in which revocation could be inappropriate. The use of an example did not limit lesser sanctions solely to wildcat strikes.

Reading the statute to make lesser discipline available only when a union tried to stop a wildcat strike would make the alternative-sanction provision largely meaningless. A union that neither called nor participated in a wildcat strike, and that did try to stop it, might not have committed an unfair labor practice at all. Courts avoid interpretations that render statutory language superfluous.

The conference report stated that the FLRA may consider the extent to which a union tried to prevent or stop illegal activity, but it did not make that factor exclusive. The statute's general language—allowing any other appropriate disciplinary action—supports a case-by-case evaluation of the appropriate remedy.

The statutory definition excluding a strike-participating organization from the definition of a labor organization did not eliminate that discretion. The House floor explanation of that provision specifically stated that its application would remain within the FLRA's discretion.

The court reviews the FLRA's selected remedy under the APA's arbitrary-and-capricious standard. It gives considerable deference to the Authority's remedial judgment and will uphold the order unless it is a patent effort to achieve ends outside the policies of the statute.

PATCO was not a first-time offender. The FLRA could take official notice of PATCO's 1970 sickout, its 1978 threatened slowdown, its 1980 O'Hare slowdown, and the 1981 nationwide strike. Much of this conduct occurred while PATCO was subject to a prior injunction against such activity.

PATCO also knowingly defied both the long-standing 1970 injunction and new restraining orders directed at the 1981 strike. Before the 1981 strike, a federal district court had reaffirmed the continuing validity of the earlier injunction after PATCO sought to have it vacated.

The 1981 conduct was especially defiant: PATCO threatened the strike, deliberately called and participated in it, made no effort to end it, and continued to condone it. Even after the FLRA's initial decision, PATCO did not unconditionally end the strike or unequivocally commit to comply with the statute's no-strike requirements. On these facts, applying the statute's most severe available remedy was well within the FLRA's discretion.

Evidence of extreme employer provocation, unsafe conditions, or intransigence could conceivably bear on the remedy in a particular case, even though no such factor could legally justify a federal employee strike. The Civil Service Reform Act creates no exception to the no-strike prohibition based on the reasons for a strike.

PATCO's proposed mitigating proof was vague and conditional. It repeatedly said only that it might introduce evidence if it received more time, did not identify witnesses, did not request needed subpoenas, and did not describe the substance or scope of anticipated testimony. A valid offer of proof requires specific proposed evidence, not conclusory assertions.

The ALJ could reasonably weigh PATCO's request for a thirty-day delay against the urgency of a nationwide air-traffic-control strike and the public interest in prompt enforcement of Congress's labor-relations scheme. PATCO had been threatening a strike for months and already knew the factual basis for its own assertions about safety and bargaining conduct.

PATCO failed to show actual prejudice. It did not identify specific mitigating evidence in its later FLRA briefs or its court briefs, despite having substantially more time to do so. And the FLRA could reasonably conclude that any asserted mitigating circumstances would be outweighed by PATCO's deliberate strike, repeated violations, and complete failure to end the unlawful action.