[ v07 p34 ]
07:0034(10)CO
The decision of the Authority follows:
7 FLRA No. 10
PROFESSIONAL AIR TRAFFIC CONTROLLERS
ORGANIZATION, AFFILIATED WITH MEBA, AFL-CIO
Respondent
and
FEDERAL AVIATION ADMINISTRATION
DEPARTMENT OF TRANSPORTATION
Charging Party
Case No. 3-CO-105
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
AMICUS CURIAE
and
AMERICAN FEDERATION OF LABOR-CONGRESS
OF INDUSTRIAL ORGANIZATIONS (AFL-CIO)
AMICUS CURIAE
DECISION AND ORDER /1/
THE CHIEF ADMINISTRATIVE LAW JUDGE (CHIEF ALJ) ISSUED THE ATTACHED
RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING, FINDING
THAT, AS ALLEGED IN THE AMENDED COMPLAINT, THE RESPONDENT, PROFESSIONAL
AIR TRAFFIC CONTROLLERS ORGANIZATION (PATCO), WILLFULLY AND
INTENTIONALLY VIOLATED SECTION 7116(B)(7)(A) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) BY CALLING AND
PARTICIPATING IN A STRIKE; AND THAT, IN THE ABSENCE OF ANY EVIDENCE
THAT PATCO AT ANY TIME SOUGHT TO END THE STRIKE, PATCO WILLFULLY AND
INTENTIONALLY VIOLATED SECTION 7116(B)(7)(B). /2/ THE CHIEF ALJ
RECOMMENDED THAT PATCO BE ORDERED TO CEASE AND DESIST FROM SUCH CONDUCT
AND TAKE CERTAIN AFFIRMATIVE ACTION, AND THAT THE EXCLUSIVE RECOGNITION
STATUS OF PATCO BE REVOKED.
THEREAFTER, ALL PARTIES FILED EXCEPTIONS TO THE CHIEF ALJ'S
RECOMMENDED DECISION AND ORDER; /3/ THE CHARGING PARTY, FEDERAL
AVIATION ADMINISTRATION (FAA), AND THE GENERAL COUNSEL FILED STATEMENTS
IN OPPOSITION TO PATCO'S EXCEPTIONS; AND PATCO FILED CROSS-EXCEPTIONS
TO THOSE OF FAA AND THE GENERAL COUNSEL. IN ADDITION, PATCO FILED A
MOTION FOR ORAL ARGUMENT PURSUANT TO SECTION 2429.6 OF THE AUTHORITY'S
RULES (5 C.F.R. 2429.6), WHICH MOTION WAS OPPOSED BY FAA AND THE GENERAL
COUNSEL. THE AUTHORITY GRANTED PATCO'S MOTION AND HELD ORAL ARGUMENT ON
SEPTEMBER 16, 1981. IN ADDITION TO COUNSEL FOR PATCO, FAA AND THE
GENERAL COUNSEL, BOTH THE PRESIDENT AND GENERAL COUNSEL OF THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO (AFGE), AS WELL AS COUNSEL
FOR THE AFL-CIO, PARTICIPATED IN THE ORAL ARGUMENT. /4/
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES (5 C.F.R.
2423.29) AND SECTION 7118 OF THE STATUTE, THE CHIEF ALJ'S RULINGS MADE
AT THE HEARING HAVE BEEN REVIEWED BY THE AUTHORITY; IT IS FOUND THAT NO
PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON
CONSIDERATION OF THE CHIEF ALJ'S RECOMMENDED DECISION AND ORDER AND THE
ENTIRE RECORD IN THIS CASE, THE FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS OF THE CHIEF ALJ ARE ADOPTED EXCEPT AS MODIFIED BELOW.
I. HISTORICAL PERSPECTIVE
AT THE OUTSET, IT IS IMPORTANT FOR A COMPLETE UNDERSTANDING OF THE
STATUTE TO CONSIDER THE RELEVANT HISTORICAL PERSPECTIVE OF THE
PROHIBITION AGAINST STRIKES IN THE FEDERAL SECTOR AND THE IMPACT OF SUCH
PROHIBITION ON FEDERAL EMPLOYEES AND LABOR ORGANIZATIONS ACTING AS THEIR
EXCLUSIVE BARGAINING REPRESENTATIVES. IT NEEDS NO CITATION OF AUTHORITY
TO DEMONSTRATE THAT COURTS UNIFORMLY RECOGNIZE THE SIGNIFICANCE OF SUCH
PERSPECTIVE IN THE CONSTRUCTION OF A LAW.
THIS PROCEEDING ARISES IN THE CONTEXT OF AN ALLEGATION THAT CERTAIN
FEDERAL EMPLOYEES AND PATCO, THEIR EXCLUSIVE BARGAINING REPRESENTATIVE,
ENGAGED IN A STRIKE AGAINST THEIR EMPLOYER, AN AGENCY OF THE FEDERAL
GOVERNMENT. FOR MANY YEARS, SPECIFIC PROVISIONS OF FEDERAL LAW HAVE
PROHIBITED STRIKES BY FEDERAL EMPLOYEES /5/ AND HAVE DECLARED SUCH
STRIKES TO BE CRIMINAL CONDUCT. /6/
MOREOVER, FOR A NUMBER OF YEARS PRIOR TO THE ENACTMENT OF THE STATUTE
IN 1978, IT WAS AN UNFAIR LABOR PRACTICE UNDER THE PROVISIONS OF
EXECUTIVE ORDER 11491, AS AMENDED, WHICH, EFFECTIVE JANUARY 1, 1970,
GOVERNED LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICE, FOR A LABOR
ORGANIZATION TO CALL, ENGAGE IN, OR CONDONE A STRIKE, /7/ AND ANY UNION
WHICH ASSISTED OR PARTICIPATED IN SUCH A STRIKE WAS EXCLUDED FROM THE
DEFINITION OF "LABOR ORGANIZATION" THEREUNDER. /8/ IN 1971, A
THREE-JUDGE PANEL OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT
OF COLUMBIA, IN UNITED FEDERATION OF POSTAL CLERKS V. BLOUNT, 325
F.SUPP. 879(1971), HELD THAT THE FOREGOING PROVISIONS OF LAW AS WELL AS
THE EXECUTIVE ORDER DID NOT VIOLATE CONSTITUTIONAL RIGHTS OF FEDERAL
EMPLOYEES. IN SO CONCLUDING, THE COURT DISCUSSED THE HISTORICAL AND
PHILOSOPHICAL REASONS BEHIND THE PROHIBITION OF STRIKES BY PUBLIC
EMPLOYEES IN THE FOLLOWING TERMS (325 F.SUPP.AT 882-884):
AT COMMON LAW NO EMPLOYEE, WHETHER PUBLIC OR PRIVATE, HAD A
CONSTITUTIONAL RIGHT TO STRIKE
. . . . WHEN THE RIGHT OF PRIVATE EMPLOYEES TO STRIKE FINALLY
RECEIVED FULL PROTECTION, IT WAS
BY STATUTE . . . . (P)UBLIC EMPLOYEES STAND ON NO STRONGER FOOTING
IN THIS REGARD THAN
PRIVATE EMPLOYEES AND . . . IN THE ABSENCE OF A STATUTE, THEY TOO DO
NOT POSSESS THE RIGHT TO
STRIKE . . . . IT IS FAIR TO CONCLUDE THAT . . . THERE IS A
UNANIMITY OF OPINION IN THE PART
OF COURTS AND LEGISLATURES THAT GOVERNMENT EMPLOYEES DO NOT HAVE THE
RIGHT TO STRIKE . . . .
CONGRESS HAS CONSISTENTLY TREATED PUBLIC EMPLOYEES AS BEING IN A
DIFFERENT CATEGORY THAN
PRIVATE EMPLOYEES . . . .
GIVEN THE FACT THAT THERE IS NO CONSTITUTIONAL RIGHT TO STRIKE, IT IS
NOT IRRATIONAL OR
ARBITRARY FOR THE GOVERNMENT TO CONDITION EMPLOYMENT ON A PROMISE NOT
TO WITHHOLD LABOR
COLLECTIVELY, AND TO PROHIBIT STRIKES BY THOSE IN PUBLIC EMPLOYMENT,
WHETHER BECAUSE OF THE
PREROGATIVES OF THE SOVEREIGN, SOME SENSE OF HIGHER OBLIGATION
ASSOCIATED WITH PUBLIC SERVICE,
TO ASSURE THE CONTINUING FUNCTIONING OF THE GOVERNMENT WITHOUT
INTERRUPTION, TO PROTECT PUBLIC
HEALTH AND SAFETY OR FOR OTHER REASONS . . . . (I)T MAKES NO
DIFFERENCE WHETHER THE JOB
PERFORMED BY CERTAIN PUBLIC EMPLOYEES ARE REGARDED AS "ESSENTIAL" OR
"NON-ESSENTIAL," OR
WHETHER SIMILAR JOBS ARE PERFORMED BY WORKERS IN PRIVATE INDUSTRY WHO
DO HAVE THE RIGHT TO
STRIKE PROTECTED BY STATUTE. NOR IS IT RELEVANT THAT SOME POSITIONS
IN PRIVATE INDUSTRY ARE
ARGUABLY MORE AFFECTED WITH A PUBLIC INTEREST THAN ARE SOME POSITIONS
IN THE GOVERNMENT
SERVICE . . . .
. . . .
. . . THERE CERTAINLY IS NO COMPELLING REASON TO IMPLY THE EXISTENCE
OF THE RIGHT TO STRIKE
FROM THE RIGHT TO ASSOCIATE AND BARGAIN COLLECTIVELY. IN THE PRIVATE
SPHERE, THE STRIKE IS
USED TO EQUALIZE BARGAINING POWER, BUT THIS HAS UNIVERSALLY BEEN HELD
NOT TO BE APPROPRIATE
WHEN ITS OBJECT AND PURPOSE CAN ONLY BE TO INFLUENCE THE ESSENTIALLY
POLITICAL DECISIONS OF
GOVERNMENT IN THE ALLOCATION OF ITS RESOURCES. CONGRESS HAS AN
OBLIGATION TO ENSURE THAT THE
MACHINERY OF THE FEDERAL GOVERNMENT CONTINUES TO FUNCTION AT ALL
TIMES WITHOUT
INTERFERENCE. PROHIBITION OF STRIKES BY ITS EMPLOYEES IS A
REASONABLE IMPLEMENTATION OF THAT
OBLIGATION.
IN A CONCURRING OPINION JUDGE J. SKELLY WRIGHT NOTED (325 F.SUPP.AT
886):
. . . IF THE RIGHT OF PUBLIC EMPLOYEES TO STRIKE-- WITH ALL ITS
POLITICAL AND SOCIAL
RAMIFICATIONS-- IS TO BE RECOGNIZED AND PROTECTED BY THE JUDICIARY,
IT SHOULD BE DONE BY THE
SUPREME COURT WHICH HAS THE POWER TO REJECT ESTABLISHED JURISPRUDENCE
AND THE AUTHORITY TO
ENFORCE SUCH A SWEEPING RULE.
ON APPEAL, THE SUPREME COURT'S DECISION WITHOUT OPINION (404 U.S.
802(1971)) AND THUS TACITLY DECLINED THE OPPORTUNITY TO MODIFY EXISTING
PRECEDENT UPHOLDING THE ESTABLISHED PROHIBITION AGAINST SUCH STRIKES.
WHEN CONGRESS ENACTED THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE IN 1978, IT CONTINUED AND EXPANDED UPON THE PROHIBITION OF
STRIKES IN THE FEDERAL SECTOR. SPECIFICALLY, SECTION 7103(A)(2) OF THE
STATUTE EXCLUDES FROM THE DEFINITION OF "EMPLOYEE" ANY PERSON WHO
PARTICIPATES IN A STRIKE IN VIOLATION OF 5 U.S.C. 7311; SECTION
7103(A)(4)(D) EXCLUDES FROM DEFINITION OF "LABOR ORGANIZATION" ANY
ORGANIZATION WHICH PARTICIPATES IN THE CONDUCT OF A STRIKE AGAINST THE
GOVERNMENT OR ANY AGENCY THEREOF, OR WHICH IMPOSES A DUTY OR OBLIGATION
TO CONDUCT, ASSIST, OR PARTICIPATE IN SUCH ACTIVITY; SECTION 7116(B)(7)
RENDERS CALLING, PARTICIPATING IN OR CONDONING OF STRIKES BY A LABOR
ORGANIZATION AN UNFAIR LABOR PRACTICE; AND SECTION 7120(F) PRESCRIBES
REVOCATION OF EXCLUSIVE RECOGNITION STATUS OR OTHER APPROPRIATE
DISCIPLINARY ACTION AS A PENALTY FOR A LABOR ORGANIZATION'S VIOLATION OF
SECTION 7116(B)(7). THESE PROVISIONS PLAINLY EVINCE A CONGRESSIONAL
INTENT TO CONTINUE THE BAN ON STRIKES IN THE FEDERAL SECTOR AND TO
PENALIZE SEVERELY VIOLATORS OF THAT BAN.
CONGRESS HAS ESTABLISHED THAT COLLECTIVE BARGAINING IN THE FEDERAL
SECTOR MUST EXIST WITHIN A FRAMEWORK OF AN EFFECTIVE AND EFFICIENT
GOVERNMENT, /9/ THE OPERATIONS OF WHICH MAY NOT BE DISRUPTED BY STRIKES
OR OTHER WORK STOPPAGES, AND SUCH IS THE RULE OF LAW WHICH IS BINDING ON
THIS AUTHORITY AND THE COURTS. ALL FEDERAL EMPLOYEES AND THOSE LABOR
ORGANIZATIONS ACTING AS EXCLUSIVE BARGAINING REPRESENTATIVES MUST ADHERE
TO THIS RULE OF LAW ESTABLISHED BY DULY CONSTITUTED AUTHORITY, FOR A
FREE SOCIETY CANNOT BE MAINTAINED IF INDIVIDUALS OR ASSOCIATIONS WITHIN
THAT SOCIETY MAY CHOOSE TO OBEY ONLY THOSE LAWS WITH WHICH THEY AGREE.
THOMAS JEFFERSON RECOGNIZED THE IMPORTANCE OF THE RULE OF LAW IN THE
UNITED STATES WHEN HE WROTE:
THAT LOVE OF ORDER AND OBEDIENCE TO THE LAWS, WHICH SO REMARKABLY
CHARACTERIZE THE CITIZENS
OF THE UNITED STATES, ARE SURE PLEDGES OF INTERNAL TRANQUILITY. /10/
IN MORE RECENT TIMES, JUSTICE FRANKFURTER SAID IN HIS CONCURRING
OPINION IN UNITED STATES V. UNITED MINE WORKERS OF AMERICA, 330 U.S.
258, 308, 312(1947):
BUT FROM THEIR OWN EXPERIENCE AND THEIR DEEP READING IN HISTORY, THE
FOUNDERS KNEW THAT LAW
ALONE SAVES A SOCIETY FROM BEING RENT BY INTERNECINE STRIFE OR RULED
BY MERE BRUTE POWER
HOWEVER DISGUISED. "CIVILIZATION INVOLVES SUBJECTION OF FORCE TO
REASON, AND THE AGENCY OF
THIS SUBJECTION IS LAW /10A/ THE CONCEPTION OF A GOVERNMENT BY LAWS
DOMINATED THE THOUGHTS OF
THOSE WHO FOUNDED THIS NATION. . . .
. . . IF ONE MAN CAN BE ALLOWED TO DETERMINE FOR HIMSELF WHAT IS LAW,
EVERY MAN CAN. THAT
MEANS FIRST CHAOS, THEN TYRANNY. LEGAL PROCESS IS AN ESSENTIAL PART
OF THE DEMOCRATIC
PROCESS.
MORE RECENTLY PRESIDENT JOHN F. KENNEDY, IN A 1963 SPEECH AT
VANDERBILT UNIVERSITY, SIMILARLY ASSERTED:
. . . (O)NLY A RESPECT FOR THE LAW MAKES IT POSSIBLE FOR FREE MEN TO
DWELL TOGETHER IN
PEACE AND PROGRESS.
. . . (L)AW IS THE ADHESIVE FORCE OF THE CEMENT OF SOCIETY, CREATING
ORDER OUT OF CHAOS AND
COHERENCE IN PLACE OF ANARCHY . . . . (F)OR ONE MAN TO DEFY A LAW OR
COURT ORDER HE DOES NOT
LIKE IS TO INVITE OTHERS TO DEFY THOSE WHICH THEY DO NOT LIKE,
LEADING TO A BREAKDOWN OF ALL
JUSTICE AND ALL ORDER.
CERTAIN OTHER SOCIETIES MAY RESPECT THE RULE OF FORCE-- WE RESPECT
THE RULE OF LAW. /11/
HAVING SET FORTH AT SOME LENGTH THE LONG-STANDING PROSCRIPTION OF
STRIKES BY FEDERAL EMPLOYEES AND THEIR EXCLUSIVE BARGAINING
REPRESENTATIVES AND THE NEED FOR A CIVILIZED SOCIETY TO RESPECT THE RULE
OF LAW, CONSIDERATION NOW MUST BE GIVEN TO THE FINDINGS AND REMEDY IN
THE INSTANT CASE.
II. FINDINGS OF VIOLATIONS OF SECTION 7116(B)(7)(A) AND (B) OF
STATUTE
THE CHIEF ALJ IN THE CASE AT HAND FOUND THAT PATCO VIOLATED SECTION
7116(B)(7)(A) AND (B) OF THE STATUTE WHEN, BEGINNING ON MONDAY, AUGUST
3, 1981, IT CALLED AND PARTICIPATED IN A STRIKE AT FAA FACILITIES
THROUGHOUT THE UNITED STATES AND FAILED TO TAKE ACTION TO PREVENT SUCH
ACTIVITY. IN SO FINDING, THE CHIEF ALJ RELIED UPON THE FOLLOWING FACTS
WHICH ARE SUPPORTED BY THE RECORD. /12/
AT ALL TIMES MATERIAL HEREIN, PATCO HAS BEEN THE EXCLUSIVE
REPRESENTATIVE OF A NATIONAL UNIT OF AIR TRAFFIC CONTROL SPECIALISTS
EMPLOYED BY FAA. IN A PRESS CONFERENCE HELD PRIOR TO AUGUST 3, 1981,
ROBERT E. POLI, THE NATIONAL PRESIDENT OF PATCO, STATED:
IF WE HAVE NOT RECEIVED A SETTLEMENT PROPOSAL (FROM FAA) WHICH OUR
NEGOTIATING TEAM
DETERMINES SHOULD BE OFFERED TO THE MEMBERSHIP, I WILL ORDER THE
COUNT TO BEGIN. AFTER THE
TALLYING HAS BEEN COMPLETED AND FOLLOWING VERIFICATION OF THE
NECESSARY SUPPORT, THE STRIKE
WILL BEGIN ON THE DAY SHIFT OF MONDAY, AUGUST 3.
EARLY ON THE MORNING OF AUGUST 3, THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA ISSUED A TEMPORARY RESTRAINING ORDER WHICH
ENJOINED PATCO, POLI AND OTHER UNION OFFICERS, AND THOSE ACTING FOR AN
IN CONCERT WITH THEM, FROM TAKING PART IN ANY STRIKE OR OTHERWISE
INTERFERING WITH THE OPERATION OF AIR TRAFFIC. UNITED STATES V. PATCO,
SUPRA, N. 12. ON THE EVENING OF THAT DAY, JUDGE HAROLD GREENE FOUND
BOTH PATCO AND POLI TO BE IN CONTEMPT OF COURT. HIS FINDING WAS BASED
UPON TESTIMONY THAT THE UNION'S POSITION, AS EXPRESSED BY POLI, WAS THAT
ITS MEMBERS WERE NOT TO RETURN TO WORK; THAT AT LEAST 85 PERCENT OF
PATCO'S MEMBERS WERE THEN ENGAGED IN A WORK STOPPAGE; AND THAT POLI, AS
SHOWN ON A VIDEOTAPE, WAS AWARE OF THE TEMPORARY RESTRAINING ORDER BUT
THAT HE SPECIFICALLY STATED THAT HE WOULD "EXECUTE THE WILL OF THE
MEMBERSHIP" AND WOULD NOT ORDER PATCO'S MEMBERS TO GO BACK TO WORK.
UNITED STATES V. PATCO, SUPRA.
THE RECORD FURTHER SHOWS, AND THE CHIEF ALJ FOUND, THAT ON THE
MORNING OF AUGUST 3, PICKETS ASSEMBLED AT ENTRANCES TO AIR TRAFFIC
CONTROL FACILITIES ACROSS THE COUNTRY CARRYING SIGNS WHICH ANNOUNCED IN
LARGE LETTERS THAT PATCO WAS ON STRIKE; THAT, FROM AUGUST 3 THROUGH
AUGUST 8, MASSIVE ABSENTEEISM AMONG AIR TRAFFIC CONTROLLERS ACROSS THE
COUNTRY RESULTED IN, AT MOST ONLY 37 PERCENT OF THE REGULAR EMPLOYEES
MANNING THEIR POSITIONS; AND THAT CONSEQUENTLY FAA WAS REQUIRED TO HOLD
DOWN FLIGHTS, ON A NATIONAL BASIS, TO NO MORE THAN 69 PERCENT OF NORMAL
CAPACITY, RESULTING IN THE CANCELLATION OF 26,000 FLIGHTS DURING THOSE 5
DAYS, THE CLOSING OF 23 AIR TRAFFIC CONTROL FACILITIES, AND THE
IMPOSITION OF RESTRICTIONS ON ALL CATEGORIES OF AVIATION, INCLUDING
MILITARY.
THE RECORD ALSO INDICATES THAT, AT A PRESS CONFERENCE SUBSEQUENT TO
THE ONE REFERRED TO ABOVE, POLI STATED:
THE QUESTION IS WILL THE STRIKE CONTINUE.
THE ANSWER IS YES.
IN FINDING THAT THE RECORD IS DEVOID OF EVIDENCE THAT PATCO TOOK ANY
STEPS TO PREVENT OR END THE STRIKE, THE CHIEF ALJ NOTED THAT PATCO DID
NOT PRESENT EVIDENCE IN ITS DEFENSE. THE CHIEF ALJ CONCLUDED THAT
PATCO'S FAILURE TO MAKE A PARTICULARIZED PROFFER OF EVIDENCE THAT IT DID
NOT CALL OR PARTICIPATE IN THE STRIKE, DESPITE THE ALJ'S REQUEST THAT
PATCO MAKE SUCH A PROFFER, DEMONSTRATED THAT SUCH EVIDENCE DID NOT
EXIST.
BASED UPON ALL OF THE FOREGOING, THE CHIEF ALJ CONCLUDED THAT PATCO
WILLFULLY AND INTENTIONALLY VIOLATED SECTION 7116(B)(7)(A) AND (B) OF
THE STATUTE. THE CHIEF ALJ'S FINDINGS AND CONCLUSIONS IN THIS REGARD
ARE ADOPTED.
IN ITS EXCEPTIONS, PATCO CONTENDS THAT THE CHIEF ALJ'S FINDINGS AND
CONCLUSIONS MUST BE REVERSED FOR SEVERAL REASONS. FIRST PATCO CONTENDS
THAT IT WAS NOT GIVEN ADEQUATE TIME TO PREPARE ITS DEFENSE. MORE
SPECIFICALLY, PATCO ASSERTS THAT, ESPECIALLY IN VIEW OF THE NUMEROUS
COURT ACTIONS IN WHICH IT WAS SIMULTANEOUSLY INVOLVED AND THE IMPORTANCE
OF THE ISSUES PRESENTED IN THIS CASE, THE 7-DAY PERIOD BETWEEN ISSUANCE
OF THE COMPLAINT AND THE HEARING WAS INSUFFICIENT TO PREPARE FOR THE
HEARING; THAT THE DENIAL OF PATCO'S REQUEST FOR A CONTINUANCE OF THE
HEARING WAS IMPROPER; AND THAT THE SHORT PERIOD ESTABLISHED BY THE
CHIEF ALJ FOR FILING POST-HEARING BRIEFS WAS UNNECESSARY AND
INCONSISTENT WITH THE AUTHORITY'S RULES.
THESE CONTENTIONS ARE NOT SUPPORTED. THE SCHEDULING OF THE HEARING
IN THIS CASE WAS FULLY CONSISTENT WITH THE REQUIREMENTS OF THE STATUTE
/13/ AND THE AUTHORITY'S RULES /14/ WHICH ESTABLISH THAT A HEARING MAY
BE HELD 5 DAYS AFTER SERVICE OF THE COMPLAINT. IN ADDITION, THE
SCHEDULING OF THE HEARING WAS JUSTIFIED IN VIEW OF THE APPARENT ADVERSE
EFFECTS OF THE STRIKE AT THE TIME OF SUCH SCHEDULING.
THE RECORD FURTHER REVEALS THAT, ONCE THE HEARING BEGAN AND IN
RESPONSE TO PATCO'S REQUEST FOR A CONTINUANCE IN ORDER TO PREPARE ITS
DEFENSE, THE CHIEF ALJ INQUIRED WHETHER PATCO WOULD REQUIRE ADDITIONAL
TIME TO ADDUCE EVIDENCE ON THE QUESTION OF ITS RESPONSIBILITY FOR
CALLING OR PARTICIPATING IN THE STRIKE OR ANY ATTEMPTS TO PREVENT OR
STOP THE STRIKE. THE CHIEF ALJ ADJOURNED THE HEARING AT PATCO'S REQUEST
AFTER COMPLETION OF THE GENERAL COUNSEL'S CASE IN ORDER TO PERMIT PATCO
AN OPPORTUNITY TO DETERMINE WHETHER IT WOULD PRESENT EVIDENCE ON THESE
QUESTIONS. HOWEVER, AS PREVIOUSLY STATED, PATCO DID NOT AT ANY TIME
INDICATE AN INTENTION TO PRESENT SUCH EVIDENCE NOR DID IT MAKE AN OFFER
OF PROOF IN THIS REGARD, BUT INSTEAD ADVISED THE CHIEF ALJ THAT IT WOULD
PRESENT NO WITNESSES OR OTHER EVIDENCE WITH RESPECT THERETO.
ACCORDINGLY, IT IS CONCLUDED THAT PATCO HAS FAILED TO ESTABLISH THAT THE
DENIAL OF A CONTINUANCE WAS IMPROPER OR THAT PATCO WAS PREJUDICED IN ANY
MANNER THEREBY. /15/
SIMILARLY, PATCO'S CONTENTION THAT IT WAS GIVEN INSUFFICIENT TIME TO
FILE A POST-HEARING BRIEF IS REJECTED. PATCO HAS FAILED TO SHOW THAT
THE SCHEDULE ESTABLISHED FOR THE FILING OF BRIEFS BY THE PARTIES WAS AN
ABUSE OF THE CHIEF ALJ'S DISCRETION UNDER THE AUTHORITY'S RULES, /16/ OR
THAT PATCO WAS PREJUDICED IN ANY MANNER BY SUCH SCHEDULE. IN THIS
LATTER REGARD, IT IS NOTED THAT THE CHIEF ALJ GRANTED PATCO'S MOTION FOR
A SHORT EXTENSION OF TIME IN WHICH TO FILE ITS BRIEF, AND THAT PATCO
THEREAFTER TIMELY FILED ITS BRIEF WITH THE CHIEF ALJ.
PATCO NEXT EXCEPTS TO THE CHIEF ALJ'S FAILURE TO RENDER A REASONED
DECISION. NOTING THAT THE DECISION WAS ISSUED ONLY 4 HOURS AFTER
RECEIPT OF ITS POST-HEARING BRIEF, PATCO CONTENDS THAT THE CHIEF ALJ
"APPARENTLY DID NOT EVEN READ" THE BRIEF. HOWEVER EXAMINATION OF THAT
BRIEF MAKES IT CLEAR THAT THE CHIEF ALJ DID IN FACT ADDRESS ALL RELEVANT
CONTENTIONS CONTAINED IN SUCH BRIEF. INDEED, PATCO APPEARS TO CONTEND
ONLY THAT THE CHIEF ALJ ADDRESSED AN ARGUMENT RAISED BY PATCO AT THE
HEARING WHICH WAS NOT ALSO RAISED IN PATCO'S BRIEF. MOREOVER, IN VIEW
OF THE AUTHORITY'S CAREFUL CONSIDERATION OF THE ENTIRE RECORD--
INCLUDING THE BRIEFS SUBMITTED AT ALL STAGES OF THIS PROCEEDING AND THE
EXTENSIVE ORAL ARGUMENT PRESENTED BY THE PARTIES AND AMICI-- IT IS
CONCLUDED THAT PATCO WAS NOT PREJUDICED BY THE TIMING OF THE CHIEF ALJ'S
RECOMMENDED DECISION AND ORDER. SEE, E.G., FLORIDA ECONOMIC ADVISORY
COUNCIL V. FEDERAL POWER COMMISSION, 251 F.2D 643, 648 (D.C. CIR 1957).
PATCO'S NEXT EXCEPTION, TO THE EFFECT THAT THE CHIEF ALJ "MAY HAVE
HAD EX PARTE CONTACTS WITH THE FAA, THE FLRA GENERAL COUNSEL, OR BOTH,"
REQUIRES NO EXTENDED DISCUSSION. THE SOLE BASIS FOR SUCH A SPECULATIVE
ASSERTION IS THAT FAA AND THE GENERAL COUNSEL FILED MOTIONS TO LIMIT THE
TIME FOR FILING EXCEPTIONS TO THE CHIEF ALJ'S DECISION, BEFORE THE
DECISION WAS ISSUED. PATCO CONTENDS THE MOTIONS "QUITE CLEARLY WERE
BASED ON THE ASSUMPTION THAT PATCO WOULD BE THE PARTY FILING EXCEPTIONS"
AND THE MOTIONS "THUS EXHIBIT AN ASTONISHING DEGREE OF CONFIDENCE IN THE
OUTCOME OF THE HEARING." /17/
WHILE SUCH MOTIONS MAY HAVE BEEN PREMATURE, THERE IS NO EVIDENCE
WHATSOEVER THAT THE CAUSE THEREOF WAS IMPROPER COMMUNICATION BETWEEN
THE
CHIEF ALJ AND ANY OF THE PARTIES. RATHER, AS NOTED BY THE GENERAL
COUNSEL AT ORAL ARGUMENT WITHOUT CONTRADICTION BY PATCO, THE
"CONFIDENCE" EXPRESSED BY THOSE MOTIONS WAS BASED ON THE CHIEF ALJ'S
STATEMENT AT THE HEARING THAT THE GENERAL COUNSEL HAD MET THE BURDEN OF
ESTABLISHING A PRIMA FACIE CASE AND THAT PATCO SHOULD CONSIDER COMING
FORWARD WITH ANY REBUTTAL EVIDENCE IN ITS POSSESSION. PATCO DID NOT
PRESENT ANY SUCH EVIDENCE. IN SUM, PATCO'S EXCEPTION IN THIS REGARD IS
CLEARLY UNWARRANTED AND IS SUMMARILY REJECTED.
PATCO'S FINAL EXCEPTION TO THE CHIEF ALJ'S FINDING OF A SECTION
7116(B)(7)(A) AND (B) VIOLATION IS THAT "THE EVIDENCE DOES NOT ESTABLISH
THAT PATCO CALLED OR PARTICIPATED IN AN ILLEGAL STRIKE." IN THIS
CONNECTION, PATCO CONTENDS THAT THE ONLY RECORD EVIDENCE OF STRIKE
ACTIVITY INVOLVES VARIOUS PATCO LOCALS RATHER THAN THE NATIONAL PATCO
ORGANIZATION, AND THAT WHILE CERTAIN VIDEOTAPED STATEMENTS OF PATCO'S
NATIONAL PRESIDENT WERE INTRODUCED INTO EVIDENCE, THEY ARE INSUFFICIENT
TO ESTABLISH THAT THE NATIONAL PATCO ORGANIZATION CALLED OR PARTICIPATED
IN A STRIKE. MOREOVER, IT IS ASSERTED THAT THERE WAS NO EVIDENCE AS TO
WHEN SUCH STATEMENTS BY POLI WERE MADE. SPECIFICALLY WITH RESPECT TO
THE ALLEGATION OF A SECTION 7116(B)(7)(B) VIOLATION, PATCO FURTHER
CONTENDS THAT IT CANNOT BE FOUND TO HAVE CONDONED THE STRIKE BECAUSE
THERE WAS NO EVIDENCE AS TO WHEN SUCH STATEMENTS BY POLI WERE MADE.
SPECIFICALLY WITH RESPECT TO THE ALLEGATION OF A SECTION 7116(B)(7)(B)
VIOLATION, PATCO FURTHER CONTENDS THAT IT CANNOT BE FOUND TO HAVE
CONDONED THE STRIKE BECAUSE THERE WAS NO EVIDENCE THAT THE NATIONAL
PATCO ORGANIZATION WAS AWARE OF IT.
HOWEVER, AS PREVIOUSLY DETAILED HEREIN, THE RECORD PLAINLY
ESTABLISHES PATCO'S RESPONSIBILITY FOR CALLING, PARTICIPATING IN, AND
DID POLI CALL FOR A TALLY OF THE STRIKE VOTE AMONG PATCO MEMBERS UNLESS
PATCO RECEIVED AN ACCEPTABLE SETTLEMENT PROPOSAL FROM FAA, BUT HE ALSO
ACCURATELY STATED WHEN THE NATIONWIDE STRIKE OF AIR TRAFFIC CONTROLLERS
WOULD BEGIN. IN ADDITION, THE RECORD DEMONSTRATES THAT, ONCE THE STRIKE
BEGAN, POLI CONSISTENTLY REFUSED TO ORDER THE CONTROLLERS TO RETURN TO
WORK AND INSTEAD ASSERTED THAT THE STRIKE WOULD CONTINUE. INDEED, IT
WAS ON THE BASIS OF SUCH CONDUCT THAT JUDGE HAROLD GREENE FOUND PATCO
AND POLI TO BE IN CONTEMPT OF THE COURT'S TEMPORARY RESTRAINING ORDER.
TO PARAPHRASE THAT COURT'S DECISION, THE AUTHORITY WOULD HAVE TO BLIND
ITSELF TO REALITY TO FIND THAT THESE FACTORS, IN CONJUNCTION, DO NOT
DEMONSTRATE THE CALLING, PARTICIPATING IN, OR CONDONING OF THE STRIKE IN
VIOLATION OF THE STATUTE. /18/
IN SUMMARY, AND IN AGREEMENT WITH THE CHIEF ALJ, IT IS FOUND THAT
PATCO WILLFULLY AND INTENTIONALLY VIOLATED SECTION 7116(B)(7)(A) AND (B)
OF THE STATUTE.
III. THE REMEDY
A. RECOMMENDATIONS OF THE CHIEF ALJ AND EXCEPTIONS THERETO
HAVING FOUND THAT PATCO WILLFULLY AND INTENTIONALLY VIOLATED SECTION
7116(B)(7)(A) AND (B), THE CHIEF ALJ RECOMMENDED, PURSUANT TO SECTION
7120(F), /19/ THAT PATCO'S EXCLUSIVE RECOGNITION STATUS BE REVOKED. HE
ALSO RECOMMENDED THAT PATCO BE ORDERED TO CEASE AND DESIST FROM CALLING
OR PARTICIPATING IN A STRIKE OR WORK STOPPAGE AGAINST FAA OR ANY OTHER
AGENCY, OR ASSISTING AND ENCOURAGING IN ANY MANNER SUCH A STRIKE OR WORK
STOPPAGE; AND THAT PATCO CEASE AND DESIST FROM CONDONING ANY SUCH
STRIKE OR WORK STOPPAGE BY FAILING TO TAKE ACTION TO PREVENT OR STOP
SUCH ILLEGAL ACTIVITY. FURTHER, HE RECOMMENDED THAT PATCO TAKE CERTAIN
AFFIRMATIVE ACTION, INCLUDING POSTING COPIES OF A NOTICE STATING THAT
PATCO WILL NOT CALL OR PARTICIPATE IN A STRIKE OR WORK STOPPAGE OR IN
ANY MANNER ASSIST IN OR ENCOURAGE SUCH ILLEGAL ACTIVITY. THE CHIEF ALJ
ALSO STATED (AT N. 8 OF HIS DECISION):
THE FINDING OF A SECTION 7116(B)(7) VIOLATION ALSO, OF COURSE, STRIPS
RESPONDENT OF ITS
STATUS AS A LABOR ORGANIZATION WITHIN THE MEANING OF SECTION
7103(A)(4)(D). I SEE NO NEED TO
ELABORATE ON THE OBVIOUS CONSEQUENCES OF THAT LOSS, IN TERMS OF
RESPONDENT'S USE OF THE
STATUTE, IN THIS DECISION, OR ANY WARRANT TO ADDRESS THE MATTER IN
THE PROPOSED REMEDY.
PATCO EXCEPTS TO THE CHIEF ALJ'S RECOMMENDED REMEDY. FIRST, PATCO
CONTENDS THAT ITS EXCLUSIVE RECOGNITION STATUS SHOULD NOT BE REVOKED.
PATCO ASSERTS THAT INASMUCH AS THE REFERENCE TO REVOCATION AS A REMEDY
FOR VIOLATION OF SECTION 7116(B)(7) APPEARS IN SECTION 7120 WHICH IS
ENTITLED "STANDARDS OF CONDUCT FOR LABOR ORGANIZATIONS," AND INASMUCH AS
THE ASSISTANT SECRETARY OF LABOR FOR LABOR MANAGEMENT RELATIONS IS
AUTHORIZED BY SECTION 7120(D) /20/ TO PRESCRIBE SUCH REGULATIONS AS ARE
NECESSARY TO IMPLEMENT SECTION 7120 BUT HAS NOT ISSUED REGULATIONS
RELATING TO REVOCATION OF A LABOR ORGANIZATION'S EXCLUSIVE RECOGNITION
STATUS, THE AUTHORITY HAS NO POWER TO IMPOSE SANCTIONS UNDER SECTION
7120(F). PATCO FURTHER CONTENDS THAT, INASMUCH AS THE POWER TO REVOKE A
UNION'S EXCLUSIVE RECOGNITION STATUS DERIVES FROM SECTION 7120(F) RATHER
THAN SECTION 7118, AND INASMUCH AS THE AUTHORITY'S POWER UNDER SECTION
7105(E)(2) /21/ TO DELEGATE TO AN ADMINISTRATIVE LAW JUDGE ITS RIGHT TO
DETERMINE WHETHER ANY PERSON HAS ENGAGED IN AN UNFAIR LABOR PRACTICE
SPECIFICALLY RELATES TO PROCEEDINGS UNDER SECTION 7118, THE STATUTE DOES
NOT ALLOW THE AUTHORITY TO DELEGATE TO AN ADMINISTRATIVE LAW JUDGE THE
RESPONSIBILITY OF CONDUCTING A DISCIPLINARY HEARING AND MAKING A
RECOMMENDED DISCIPLINARY DECISION. PATCO ARGUES THAT BECAUSE THE
AUTHORITY ITSELF DID NOT CONDUCT THE HEARING, THE REVOCATION REMEDY MAY
NOT BE IMPOSED.
PATCO ADDITIONALLY ARGUES THAT, EVEN IF REVOCATION IS AVAILABLE AS A
REMEDY, IT SHOULD NOT BE IMPOSED UNDER THE CIRCUMSTANCES OF THIS CASE.
IT CONTENDS THAT THE CHOICE OF REMEDY IS WITHIN THE DISCRETION OF THE
AUTHORITY AND THAT SUCH FACTORS AS FAA'S ALLEGED REFUSAL TO BARGAIN IN
CHARACTERIZED AS AMOUNTING TO ANTI-UNION DISCRIMINATION AND INTERFERENCE
IN PATCO'S AFFAIRS, DEMONSTRATE THAT REVOCATION OF PATCO'S EXCLUSIVE
RECOGNITION STATUS IS UNWARRANTED. /22/
MOREOVER, IT ASSERTS THAT THE PUBLIC INTEREST WILL NOT BE ENHANCED BY
THE DECERTIFICATION OF PATCO, CONTENDING THAT DECERTIFICATION WILL
EFFECTIVELY PRECLUDE AMICABLE SETTLEMENT OF THE PARTIES' UNDERLYING
DISPUTE AS WELL AS OF OTHER DISPUTES BETWEEN EMPLOYEES AND FAA, AND WILL
VIOLATE THE RIGHTS OF WORKING CONTROLLERS AND THOSE FACING DISMISSAL.
PATCO FURTHER CONTENDS THAT, IN VIEW OF HISTORICAL PRECEDENTS REGARDING
STRIKES DURING THE WORLD WAR II AND POST-WAR ERA AND THE SUBSTANTIAL
PUNITIVE MEASURES ALREADY LEVIED AGAINST PATCO BY VARIOUS COURTS, THE
PENALTY OF DECERTIFICATION WOULD BE EXCESSIVELY PUNITIVE AND
INEQUITABLE. PATCO STATES THAT THERE ARE NUMEROUS ALTERNATIVE REMEDIES
SHORT OF DECERTIFICATION THAT WOULD BE MORE APPROPRIATE TO THE PUBLIC
INTEREST, BUT DOES NOT SPECIFICALLY ENUMERATE SUCH ALTERNATIVE REMEDIES
LASTLY, PATCO EXCEPTS TO THE CHIEF ALJ'S RECOMMENDATION THAT IT BE
ORDERED TO CEASE AND DESIST FROM CALLING, PARTICIPATING IN, OR CONDONING
ANY STRIKE OR WORK STOPPAGE. IN THIS REGARD, IT ASSERTS THAT AS A
CONSEQUENCE OF FAA'S DISMISSAL OF THOSE EMPLOYEES WHO WERE ALLEGEDLY
ENGAGED IN STRIKE ACTIVITY, "THE UNITED STATES HAS TAKEN THE POSITION
THAT NO STRIKE IS CURRENTLY IN PROGRESS" AND WOULD THEREFORE BE
UNENFORCEABLE BECAUSE IT IS UNCLEAR AS TO WHAT ACTIONS THE PROPOSED
ORDER PROHIBITS OR ALLOWS. /23/
FAA EXCEPTS TO THE CHIEF ALJ'S DECISION ON THE BASIS THAT IT DOES NOT
STATE SPECIFICALLY THAT PATCO'S CERTIFICATION IS PERMANENTLY REVOKED.
IN THIS REGARD, FAA CONTENDS THAT "SECTION 7120(F) WAS INTENDED AS A
DECISIVE AND UNCOMPROMISING REMEDY AGAINST A UNION FOUND TO HAVE ENGAGED
IN AN ILLEGAL STRIKE" AND CONGRESSIONAL INTENT TO BAN STRIKES IN THE
FEDERAL SECTOR "CANNOT BE ENFORCED IF LABOR ORGANIZATIONS WHICH HAVE
VIOLATED THE PROHIBITION AGAINST STRIKES ARE SUBSEQUENTLY PERMITTED TO
REGAIN THEIR CERTIFICATION . . . ." FAA ALSO EXCEPTS TO THE DECISION TO
THE EXTENT THAT IT FAILS TO PRECLUDE PATCO PERMANENTLY FROM QUALIFYING
AS A "LABOR ORGANIZATION" UNDER SECTION 7103(A)(4)(D), /24/ AND THEREBY
FROM AVAILING ITSELF OF THE PROTECTIONS AND BENEFITS OF THE STATUTE.
FAA ASSERTS THAT "(I)T IS DIFFICULT TO CONCEIVE OF ANOTHER CASE MORE
FLAGRANT THAN THIS ONE. THUS, IF A PERMANENT REMEDY IS NOT IMPOSED
HERE, THE EFFECTIVENESS OF THE SANCTION CREATED BY THE STATUTE IS
NULLIFIED, CONTRARY TO CONGRESS' INTENT." FINALLY, WHILE NOT ADDRESSED
AS PART OF ITS FORMAL EXCEPTIONS, FAA OBJECTS TO THE PROPOSED POSTING
REMEDY BECAUSE IT CONTAINS NO REFERENCE TO PATCO'S DECERTIFICATION AND
IT IS INAPPROPRIATE AND INADEQUATE IN VIEW OF PATCO'S VIOLATIONS.
THE GENERAL COUNSEL LIKEWISE EXCEPTS TO THE CHIEF ALJ'S DECISION
BECAUSE IT FAILS TO BAR PATCO PERMANENTLY FROM BEING CONSIDERED A LABOR
ORGANIZATION UNDER SECTION 7103(A)(4)(D) AND TO PRECLUDE PATCO
PERMANENTLY FROM USING THE PROCEDURES AVAILABLE TO A LABOR ORGANIZATION
UNDER THE STATUTE. FURTHER, THE GENERAL COUNSEL EXCEPTS TO THE POSTING
REMEDY, CONTENDING THAT THE NOTICE TO BE POSTED SHOULD INFORM EMPLOYEES
THAT PATCO'S EXCLUSIVE RECOGNITION STATUS HAS BEEN REVOKED AND THAT
PATCO IS PERMANENTLY BARRED FROM USE OF THE STATUTE. FINALLY, THE
GENERAL COUNSEL CONTENDS THAT THE ISSUANCE AND POSTING OF SUCH A NOTICE
WOULD OBVIATE THE NEED FOR AND PROPRIETY OF THE CHIEF ALJ'S CEASE AND
DESIST ORDER AND NOTICE. THAT IS, IF PATCO "NO LONGER REPRESENTS
FEDERAL EMPLOYEES AND THE EMPLOYEES ARE AWARE OF THAT FACT, ANY CALLS
FOR ILLEGAL ACTIVITY AND/OR ANY CALLS FOR A CESSATION OF SUCH ACTIVITY
WILL MOVE NO ONE (AND) IT (WOULD BE) UNNECESSARY FOR THE AUTHORITY TO
ORDER (PATCO) TO CEASE AND DESIST FROM DOING ANYTHING." /25/
B. DETERMINATION AS TO REMEDY
1. SUMMARY OF DETERMINATION
IT IS CONCLUDED, IN AGREEMENT WITH THE CHIEF ALJ, THAT THE STATUTE,
IN THE FACTS AND CIRCUMSTANCES OF THIS CARE, PLAINLY REQUIRES REVOCATION
OF PATCO'S STATUS AS THE EXCLUSIVELY RECOGNIZED REPRESENTATIVE OF THE
EMPLOYEES IN THE NATIONAL UNIT OF AIR TRAFFIC CONTROL SPECIALISTS
EMPLOYED BY FAA. THUS, AS SET FORTH ABOVE, THE RECORD FULLY SUPPORTS
THE CHIEF ALJ'S CONCLUSION THAT PATCO'S VIOLATION HEREIN IS "OPEN AND
FLAGRANT." MOREOVER, AS FURTHER NOTED BY THE CHIEF ALJ, THIS IS THE
SECOND TIME THAT PATCO HAS BEEN FOUND TO HAVE COMMITTED AN UNFAIR LABOR
PRACTICE BY ENGAGING IN AN UNLAWFUL STRIKE. IN THIS REGARD, AS A RESULT
OF ITS PARTICIPATION IN AND CONDONING OF A STRIKE IN 1970, PATCO WAS
FOUND TO HAVE COMMITTED AN UNFAIR LABOR PRACTICE UNDER EXECUTIVE ORDER
11491 WHICH DISQUALIFIED IT FROM UTILIZING THE PROCEDURES AVAILABLE TO A
LABOR ORGANIZATION THEREUNDER. /26/ PATCO HAS ALSO PERMANENTLY ENJOINED
BY A FEDERAL COURT FROM ENGAGING IN STRIKE ACTIVITIES IN VIOLATION OF 5
U.S.C. 7311 AND 18 U.S.C. 1918 OR IN "ANY OTHER CONCERTED, UNLAWFUL
INTERFERENCE WITH . . . THE MOVEMENT . . . OF AIRCRAFT OR THE ORDERLY
OPERATION OF ANY AIR TRAFFIC CONTROL FACILITIES BY ANY AGENCY OF THE
UNITED STATES." /27/ ALTHOUGH PATCO'S DISQUALIFICATION AS A LABOR
ORGANIZATION UNDER THE EXECUTIVE ORDER WAS LIFTED 5 MONTHS LATER, BASED
IN PART ON PATCO'S ASSURANCES THAT IT WOULD NOT ENGAGE IN SUCH UNLAWFUL
CONDUCT AGAIN, /28/ THE PERMANENT INJUNCTION ORDERED BY THE COURT (BASED
ON THE PARTIES' STIPULATION) IN 1970 CONTINUED IN FULL FORCE AND EFFECT.
THUS, IN 1978, WHEN PATCO WAS FOUND IN CIVIL CONTEMPT OF THE COURT'S
1970 INJUNCTION AS A RESULT OF AN ALLEGED SLOWDOWN BY AIR TRAFFIC
CONTROLLERS, THE COURT HELD THAT THE 1970 INJUNCTION WAS AND WOULD
CONTINUE TO BE IN FULL FORCE AND EFFECT UNLESS AND UNTIL LAWS MAKING
STRIKES BY FEDERAL EMPLOYEES ILLEGAL WERE REPEALED OR DECLARED
UNCONSTITUTIONAL. /29/ ADDITIONALLY, ON JUNE 18, 1981, JUDGE PLATT OF
THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
DENIED PATCO'S MOTION TO VACATE THE 1970 PERMANENT INJUNCTION, REJECTING
PATCO'S ARGUMENT THAT ENACTMENT OF THE STATUTE IN 1978 HAD DEPRIVED THE
COURT OF JURISDICTION OVER THE SUBJECT MATTER. IN THIS REGARD, JUDGE
PLATT, WHILE RECOGNIZING STRIKES BY FEDERAL EMPLOYEES CONSTITUTE UNFAIR
LABOR PRACTICES UNDER THE STATUTE, NOTED THAT SUCH STRIKES ARE ALSO
CRIMES UNDER OTHER FEDERAL LAWS WHICH CONTINUE TO PROVIDE A BASIS FOR
THE COURT'S JURISDICTION. JUDGE PLATT FURTHER NOTED THAT "DESPITE
FEDERAL LAW TO THE CONTRARY AND DESPITE PRIOR EXPRESS WARNINGS BY THIS
COURT, PATCO'S OFFICERS ARE CURRENTLY ADVOCATING ANOTHER WALKOUT BY ITS
MEMBERS," ACCORDING TO PUBLIC STATEMENTS IN MAY AND JUNE BY PATCO
PRESIDENT POLI THREATENING A STRIKE BY JUNE 22, 1981. /30/
PATCO'S STRIKE THREAT MATERIALIZED ON THE MORNING OF AUGUST 3, 1981,
DESPITE THE PRIOR ASSURANCES BY PATCO ITSELF THAT SUCH ACTION WOULD NOT
RECUR. MOREOVER, THERE IS ABSOLUTELY NO EVIDENCE IN THE RECORD OR EVEN
AN ALLEGATION BY PATCO THAT IT DID NOT CALL OR PARTICIPATE IN A STRIKE
OR THAT IT ATTEMPTED TO STOP THE STRIKE ONCE IT BEGAN; TO THE CONTRARY,
THE RECORD SHOWS THAT PATCO PRESIDENT POLI PUBLICLY REFUSED TO CALL OFF
THE STRIKE. IN SUMMARY, PATCO'S UNLAWFUL STRIKE HEREIN, AS RECOGNIZED
BY THE CHIEF ALJ, CAN ONLY BE CHARACTERIZED AS BOTH "OPEN AND FLAGRANT"
AND "WILLFUL AND INTENTIONAL." IN THESE CIRCUMSTANCES, THE AUTHORITY
MUST, PURSUANT TO SECTION 7120(F) OF THE STATUTE, REVOKE PATCO'S
EXCLUSIVE RECOGNITION STATUS. IN THIS REGARD, WHILE THE LANGUAGE AND
LEGISLATIVE HISTORY OF THE STATUTE PROVIDE THE AUTHORITY WITH SOME
DEGREE OF DISCRETION TO FASHION AN APPROPRIATE ORDER TO REMEDY A
VIOLATION OF SECTION 7116(B)(7), THIS DISCRETION, IN CIRCUMSTANCES SUCH
AS HERE PRESENT, CANNOT BE EXERCISED UNDER THE STATUTE TO SANCTION ANY
LESSER PENALTY THAN REVOCATION OF PATCO'S EXCLUSIVE RECOGNITION.
2. DISCRETION OF THE AUTHORITY AND ITS APPLICATION IN THIS
CASE
MORE PARTICULARLY, AS TO THE AUTHORITY'S DISCRETION REGARDING THE
REMEDY IN THE CASE, AS HERE, OF AN OPEN AND FLAGRANT VIOLATION OF
SECTION 7116(B)(7) OF THE STATUTE, /31/ IT IS NECESSARY TO CONSIDER AT
THE OUTSET SECTION 7120(F) OF THE STATUTE:
SEC. 7120. STANDARDS OF CONDUCT FOR LABOR ORGANIZATIONS
(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 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.
THE LITERAL LANGUAGE OF SECTION 7120(F), PARTICULARLY THE USE OF THE
DISJUNCTIVE "OR" APPEARING BETWEEN SUBPARTS (1) AND (2), MIGHT SUGGEST
THAT THE AUTHORITY MUST TAKE SOME "DISCIPLINARY ACTION" AGAINST ANY
LABOR ORGANIZATION WHICH HAS WILLFULLY AND INTENTIONALLY VIOLATED
7116(B)(7), BUT THAT IT IS DISCRETIONARY WITH THE AUTHORITY WHETHER THE
ACTION TAKEN IS "(REVOCATION OF) THE EXCLUSIVE RECOGNITION STATUS OF THE
LABOR ORGANIZATION," OR WHETHER IT IS "ANY OTHER APPROPRIATE
DISCIPLINARY ACTION."
OF COURSE, IN DETERMINING THE INTENT OF CONGRESS, IT IS NECESSARY TO
EXAMINE NOT ONLY THE LITERAL LANGUAGE OF THE STATUTE BUT ALSO ITS
LEGISLATIVE HISTORY AND THE PURPOSE TO BE ACCOMPLISHED BY THE STATUTE.
SEE, E.G., SOUTHEASTERN COMMUNITY COLLEGE V. DAVIS, 442 U.S. 397,
411(1979). A CAREFUL READING OF THE LEGISLATIVE HISTORY OF THIS
PROVISION, /32/ HOWEVER, DEMONSTRATES THAT THE DISCRETION OF THE
AUTHORITY DOES NOT OBTAIN WHERE, AS IN THE INSTANT CASE, THE VIOLATION
OF THE NO-STRIKE PROVISION IN SECTION 7116(B)(7) IS OPEN AND FLAGRANT
AND THE UNION HAS NOT TAKEN ANY ACTION WHATSOEVER WHICH WOULD WARRANT
MITIGATION WITHIN THE EXPRESSED INTENT OF CONGRESS. THE SENATE BILL, AS
REPORTED OUT OF COMMITTEE ON JULY 10, 1978, DID NOT CONTAIN ANY
PROVISION SIMILAR TO SECTION 7120(F). /33/ HOWEVER, DURING THE SENATE
DEBATE ON THE BILL, IN LATE AUGUST 1978, SENATOR HATCH PROPOSED AN
AMENDMENT WHICH WAS ADOPTED AND SUBSEQUENTLY INCLUDED IN THE SENATE BILL
IN THE FOLLOWING FORM:
SEC. 7217. STANDARDS OF CONDUCT FOR LABOR ORGANIZATIONS
(E) ANY LABOR ORGANIZATION WHICH BY OMISSION OR COMMISSION HAS
WILLFULLY AND INTENTIONALLY
VIOLATED SECTION 7216(B)(4)(B) SHALL UPON AN APPROPRIATE FINDING BY
THE AUTHORITY, OF SUCH
VIOLATION, HAVE ITS EXCLUSIVE RECOGNITION STATUS REVOKED AND IT SHALL
CEASE IMMEDIATELY TO BE
LEGALLY ENTITLED AND OBLIGATED TO REPRESENT EMPLOYEES IN THE UNIT.
/34/ (EMPHASIS AND
FOOTNOTE SUPPLIED.) S. 2640, 95TH CONG., 2D SESS. (AUG. 24, 1978),
LEGIS. HIST. AT 588.
IN INTRODUCING THE AMENDMENT ON THE SENATE FLOOR, SENATOR HATCH MADE
THE FOLLOWING STATEMENT:
(THE AMENDMENT) PROVIDES FOR THE DECERTIFICATION OF ANY LABOR
ORGANIZATION WHICH IS FOUND
BY THE AUTHORITY TO HAVE CONDONED, BY FAILING TO TAKE APPROPRIATE
ACTION TO PREVENT ANY
STRIKE, WORK STOPPAGE, OR SLOWDOWN BY EMPLOYEES. I BELIEVE THE
PUBLIC INTEREST DEMANDS THAT
WE TAKE THE LEGAL AUTHORITY AWAY FROM ANY UNION WHICH ABROGATES ITS
RESPONSIBILITY TO REMEDY
UNLAWFUL EMPLOYEE ACTIONS. THIS ACT CREATES RIGHTS AND DUTIES ON THE
PART OF BOTH COLLECTIVE
BARGAINING PARTICIPANTS, AND I FEEL THIS IS A MINIMUM OBLIGATION THE
UNION SHOULD ASSUME OR
RISK LOSING ITS LEGAL BARGAINING STATUS. 124 CONG.REC. S14311 (DAILY
ED. AUG. 24, 1978),
LEGIS. HIST. AT 1022.
IN A DISCUSSION BETWEEN SENATORS HATCH AND METZENBAUM WITH RESPECT TO
THIS AMENDMENT, SENATOR METZENBAUM ASKED WHETHER "DECERTIFICATION" OF A
UNION FOR MERELY "CONDONING" A STRIKE WAS NOT, IN FACT, AN "EXTREME"
REMEDY. SEE 124 CONG.REC. S14311 (DAILY ED. AUG. 24, 1978), LEGIS.
HIST. AT 1030. SENATOR HATCH RESPONDED AS FOLLOWS:
(T)HE UNION, BY BECOMING A (CERTIFIED) UNION IN THE PUBLIC SECTOR,
HAS AS ITS BASIC TENET
THE OBLIGATION AND AFFIRMATIVE DUTY TO ACT IN THE PUBLIC INTEREST,
TOO. SINCE THE LAW SAYS
THAT A UNION CANNOT STRIKE-- WHICH IS THE PRESENT LAW, IRRESPECTIVE
OF WHAT IS BEING DONE HERE
IN CIVIL SERVICE REFORM-- THE UNION HAS AN OBLIGATION NOT TO PROMOTE
OR ENCOURAGE A STRIKE.
THE REASON WHY I BELIEVE THIS PROVISION IS NOT EXTREME BUT A
PROVISION WHICH IS NEEDED IS
THAT PRESENTLY WE ARE BEING FACED WITH ALL KINDS OF THREATS OF
STRIKES ON THE PART OF
PUBLIC-SECTOR EMPLOYEES, AND EVEN SOME OF THEIR UNION LEADERS, IN
VIOLATION OF THE LAW, IN
VIOLATION OF THEIR AFFIRMATIVE DUTY NOT TO DO SO.
AS SENATOR JAVITS POINTED OUT, /35/ I AM TRYING TO PREVENT THAT, THUS
PUTTING SOME TEETH
IN THE LAW, SO THAT THEY WILL HAVE TO THINK TWICE BEFORE THEY
ADVOCATE IN ANY WAY ABRIDGEMENT
OF THEIR AFFIRMATIVE DUTY NOT TO STRIKE IN THE PUBLIC SECTOR.
TO BE HONEST WITH SENATORS, THEY WILL HAVE ALL OF THEIR RIGHTS
PROTECTED, AS SENATOR JAVITS
IN HIS CHARACTERISTIC FASHION HAS SO AMPLY POINTED OUT, BY FORMAL
LITIGATION PROCEEDINGS WHICH
MAY UNDER CERTAIN CIRCUMSTANCES GO TO THE SUPREME COURT OF THE UNITED
STATES, BUT THIS PUTS
SOME TEETH INTO THAT PARTICULAR PROVISION. AND THAT IS THE PURPOSE
OF IT. (EMPHASIS AND
FOOTNOTE SUPPLIED.) ID.
THUS, BY ITS LITERAL LANGUAGE AND LEGISLATIVE HISTORY, SECTION
7217(E) OF THE SENATE BILL PROVIDED FOR MANDATORY REVOCATION OF
CERTIFICATION OF ANY LABOR ORGANIZATION FOUND TO HAVE WILLFULLY AND
INTENTIONALLY VIOLATED SECTION 7216(B)(4)(B) (WHICH BECAME 7116(B)(7)(B)
OF THE BILL AS FINALLY ENACTED).
MEANWHILE, A SOMEWHAT RELATED DEVELOPMENT OCCURRED IN THE HOUSE. THE
HOUSE BILL NEITHER AS REPORTED NOR AS PASSED CONTAINED ANY PROVISION
COMPARABLE TO 7217(E) OF THE SENATE BILL, AS ADOPTED. MOREOVER, THE
HOUSE BILL AS REPORTED DID NOT CONTAIN A PROVISION LIKE THAT IN
7202(A)(3)(B) OF THE SENATE BILL (N. 33, SUPRA) WHICH WOULD EXCLUDE FROM
THE DEFINITION OF "LABOR ORGANIZATION" ANY ORGANIZATION PARTICIPATING IN
STRIKE ACTIVITY AGAINST THE GOVERNMENT. HOWEVER, DURING THE HOUSE
DEBATE ON THE BILL, IN SEPTEMBER 1978, CONGRESSMAN COLLINS PROPOSED
RATHER EXTENSIVE AMENDMENTS TO THE HOUSE BILL, INCLUDING THE FOLLOWING
PROVISION WHICH, LIKE SECTION 7202(A)(3)(B) OF THE SENATE BILL, PROVIDED
IN PERTINENT PART:
SEC. 7202. DEFINITIONS; APPLICATION
(A) FOR PURPOSES OF THIS CHAPTER--
(3) 'LABOR ORGANIZATION' . . . DOES NOT INCLUDE AN ORGANIZATION
WHICH--
. . . .
(B) ASSISTS, OR PARTICIPATES IN THE CONDUCT OF A STRIKE AGAINST THE
GOVERNMENT OF THE
UNITED STATES OR ANY AGENCY THEREOF OR IMPOSES A DUTY OR OBLIGATION
TO CONDUCT, ASSIST, OR
PARTICIPATE IN SUCH A STRIKE(.) 124 CONG.REC. H9618 (DAILY ED. SEPT.
13, 1978,
LEGIS. HIST. AT 894.
CONGRESSMAN UDALL SUBSEQUENTLY OFFERED A SUBSTITUTE TO THE COLLINS
AMENDMENTS. THE UDALL SUBSTITUTE DID NOT CONTAIN ANY PROVISION
COMPARABLE TO 7202(A)(3)(B) PROPOSED BY CONGRESSMAN COLLINS. 124
CONG.REC. H9625 (DAILY ED. SEPT. 13, 1978), LEGIS. HIST. AT 908-909.
DURING THE HOUSE DEBATE ON BOTH THE COLLINS AND UDALL AMENDMENTS,
CONGRESSMAN ERLENBORN INDICATED HIS SUPPORT OF THE UDALL AMENDMENTS, BUT
PROPOSED INCLUDING THE COLLINS PROVISION AS QUOTED ABOVE, WITHOUT
SIGNIFICANT CHANGE. THIS PROVISION WAS ADOPTED AND INCLUDED AS SECTION
7103(A)(4)(D) IN THE HOUSE BILL AS PASSED. 124 CONG.REC. H9693 (DAILY
ED. SEPT. 13, 1978), LEGIS. HIST. AT 968-969. /36/
THE CONFERENCE REPORT CONTAINS NO DISCUSSION OF SECTION 7103
(A)(4)(D) OF THE HOUSE BILL OR SECTION 7202(A)(3)(B) OF THE SENATE BILL
(WHICH WITHOUT SIGNIFICANT CHANGE BECAME 7103(A)(4)(D) OF THE BILL AS
FINALLY ENACTED). IT DOES, HOWEVER, CONTAIN A DISCUSSION OF 7217(E) OF
THE SENATE BILL (DISCUSSED SUPRA). THIS PROVISION WAS MODIFIED BY THE
CONFEREES, AND AS MODIFIED, BECAME 7120(F) OF THE BILL AS FINALLY
ENACTED. THE CONFERENCE REPORT DISCUSSES THE CHANGES MADE TO THE SENATE
BILL AS FOLLOWS:
SENATE SECTION 7217(E) PROVIDES THAT ANY LABOR ORGANIZATION WHICH
"WILLFULLY AND
INTENTIONALLY" CONDONES ANY STRIKE, WORK STOPPAGE, SLOWDOWN, OR ANY
PICKETING OF AN AGENCY
THAT INTERFERES WITH AN AGENCY'S OPERATIONS SHALL, UPON AN
APPROPRIATE FINDING BY THE
AUTHORITY, HAVE ITS EXCLUSIVE RECOGNITION STATUS REVOKED. THERE IS
NO COMPARABLE HOUSE
PROVISION.
THE CONFERENCE REPORT ADOPTS THE SENATE WORDING WITH AN AMENDMENT.
AS AGREED TO BY THE
CONFEREES THE PROVISION WILL NOT APPLY TO INSTANCES WHERE THE
ORGANIZATION WAS INVOLVED IN
PICKETING ACTIVITIES. THE AMENDMENT ALSO SPECIFIES THAT THE
AUTHORITY MAY IMPOSE DISCIPLINARY
ACTION OTHER THAN DECERTIFICATION. THIS IS TO ALLOW FOR INSTANCES,
SUCH AS A WILDCAT STRIKE,
WHERE DECERTIFICATION WOULD NOT BE APPROPRIATE. IN CASES WHERE THE
AUTHORITY FINDS THAT A
PERSON HAS VIOLATED THIS PROVISION, DISCIPLINARY ACTION OF SOME KIND
MUST BE TAKEN. THE
AUTHORITY MAY TAKE INTO ACCOUNT THE EXTENT TO WHICH THE ORGANIZATION
MADE EFFORTS TO PREVENT
OR STOP THE ILLEGAL ACTIVITY IN DECIDING WHETHER THE ORGANIZATION
SHOULD BE
DECERTIFIED. H.R. REP. NO. 95-1717, 95TH CONG.,2D SESS. (OCT. 5,
1978), LEGIS. HIST. AT 824.
THUS, IN CONTRAST TO THE SENATE VERSION OF THE REVOCATION OF
CERTIFICATION PROVISION, THE FINAL VERSION, IN LIGHT OF THE MEANING
GIVEN IT BY THE CONFERENCE REPORT, SUPPORTS A CONCLUSION THAT THE
AUTHORITY HAS SOME DEGREE OF DISCRETION WITH RESPECT TO THE REVOCATION
OF CERTIFICATION OF A LABOR ORGANIZATION FOUND TO HAVE VIOLATED SECTION
7116(B)(7) OF THE STATUTE. THE DEGREE OR NATURE OF THE DISCRETION
ACCORDED THE AUTHORITY BY 7120(F), HOWEVER, IS EXTREMELY LIMITED. IT
WAS THE SENATE WORDING WHICH WAS ADOPTED BY THE CONFEREES, ALBEIT IN
AMENDED FORM. THE SENATE BILL, BY ITS LANGUAGE AND EXPRESSED INTENT WAS
DESIGNED TO PUT "TEETH" INTO THE LAW AND IT MUST BE CONCLUDED THAT
REVOCATION OF CERTIFICATION IS REQUIRED IN THE SITUATION, AS HERE, IN
WHICH THE UNION (BOTH AT THE LOCAL AND NATIONAL LEVELS) HAS CALLED,
PARTICIPATED IN, AND CONDONED THE STRIKE ACTIVITY. THE ONLY
CIRCUMSTANCES WHICH THE AUTHORITY MAY TAKE INTO ACCOUNT IN ASSESSING A
LESSER REMEDY THAN REVOCATION FOR A WILLFUL AND INTENTIONAL VIOLATION OF
SECTION 7116(B)(7) ARE THOSE INSTANCES IN WHICH THE UNION MADE EFFORTS
TO PREVENT OR STOP THE ILLEGAL STRIKE ACTIVITY.
IN CONCLUSION, SECTION 7120(F) OF THE STATUTE MUST BE READ IN LIGHT
OF ITS LEGISLATIVE HISTORY AND THE LEGISLATIVE HISTORY OF THE STATUTE
GENERALLY WITH RESPECT TO "STRIKE ACTIVITY." /37/ THUS, CONGRESS
INTENDED TO PERMIT THE AUTHORITY THE DISCRETION TO FASHION "DISCIPLINARY
ACTION" OTHER THAN THE REVOCATION OF CERTIFICATION ONLY IN THOSE
SITUATIONS WHERE THE UNION HAS TAKEN POSITIVE STEPS TO PREVENT OR STOP
SUCH STRIKE ACTIVITY ON THE PART OF ITS BARGAINING UNIT.
THIS CONCLUSION OBVIOUSLY EFFECTUATES THE UNDERLYING PURPOSE OF THE
STATUTE AS SET FORTH IN SECTION 7101(B) OF THE STATUTE, NAMELY,
"(PRESCRIBING) RIGHTS AND OBLIGATIONS OF THE EMPLOYEES OF THE FEDERAL
GOVERNMENT AND (ESTABLISHING) PROCEDURES WHICH ARE DESIGNED TO MEET THE
SPECIAL REQUIREMENTS AND NEEDS OF THE GOVERNMENT." /38/
IT MUST BE EMPHASIZED IN THE CIRCUMSTANCES OF THIS CASE THAT, AS
FOUND BY THE CHIEF ALJ, PATCO WILLFULLY AND INTENTIONALLY VIOLATED
SECTION 7116(B)(7)(A) AND (B) OF THE STATUTE BY CALLING AND
PARTICIPATING IN AND CONDONING THE STRIKE. MOREOVER, THE CHIEF ALJ
OFFERED PATCO EVERY OPPORTUNITY TO PRESENT EVIDENCE OR TO MAKE AN OFFER
OF PROOF WITH RESPECT TO ANY EFFORTS ON ITS PART TO PREVENT OR STOP THE
STRIKE, BUT PATCO EXPRESSLY REJECTED THOSE OPPORTUNITIES. PATCO WAS
"OPEN AND FLAGRANT" IN ITS VIOLATION, DEMONSTRATING A WILLFUL DEFIANCE
OF LAW AS WELL AS COURT MANDATE IN A SITUATION WHEREIN THE STRIKE
CRITICALLY IMPACTED ON THE PUBLIC INTEREST.
IN SHORT, THE APPLICATION OF THE STATUTORY REQUIREMENTS TO THE FACTS
OF THIS CASE PERMITS NOTHING LESS THAN REVOCATION OF PATCO'S EXCLUSIVE
RECOGNITION STATUS.
IN ADDITION, AS NOTED BY THE CHIEF ALJ IN HIS DECISION, THE FINDING
THAT PATCO VIOLATED SECTION 7116(B)(7) OF THE STATUTE BY CALLING AND
PARTICIPATING IN AND CONDONING A STRIKE AGAINST FAA AND THAT ITS
EXCLUSIVE RECOGNITION STATUS SHOULD BE REVOKED ALSO REQUIRES A
DETERMINATION THAT AS OF THIS DATE PATCO IS NO LONGER A LABOR
ORGANIZATION WITHIN THE MEANING OF SECTION 7103(A)(4)(D) OF THE STATUTE
(SEE N. 24, SUPRA) INASMUCH AS THAT SECTION SPECIFICALLY EXCLUDES FROM
THE DEFINITION "AN ORGANIZATION WHICH PARTICIPATES IN THE CONDUCT OF A
STRIKE AGAINST THE GOVERNMENT OR ANY AGENCY THEREOF . . . ." /39/
3. DISPOSITION OF EXCEPTIONS
TURNING TO THE SPECIFIC EXCEPTIONS OF THE PARTIES, THE CONTENTIONS OF
PATCO (AND AFGE) THAT THE AUTHORITY IS NOT EMPOWERED TO IMPOSE SANCTIONS
UNDER SECTION 7120(F) OF THE STATUTE ARE REJECTED. THUS, SECTION
7120(F) EXPLICITLY STATES THAT "THE AUTHORITY SHALL, UPON AN APPROPRIATE
FINDING BY THE AUTHORITY OF SUCH VIOLATION (OF SECTION 7116(B)(7) . . .
REVOKE THE EXCLUSIVE RECOGNITION STATUS OF (SUCH) LABOR ORGANIZATION . .
. OR . . . TAKE ANY OTHER APPROPRIATE DISCIPLINARY ACTION." HENCE, UNDER
SECTION 7120(F), THE AUTHORITY (AND THE ASSISTANT SECRETARY), UPON
FINDING SUCH VIOLATION, IS SPECIFICALLY EMPOWERED TO REVOKE A UNION'S
STATUS AS EXCLUSIVE REPRESENTATIVE. /40/
MOREOVER, EVEN IN THE ABSENCE OF SECTION 7120(F), THE AUTHORITY IS
EXPRESSLY EMPOWERED BY SECTION 7118(A)(7) OF THE STATUTE, UPON FINDING
THAT AN UNFAIR LABOR PRACTICE HAS BEEN COMMITTED, TO ISSUE AN ORDER
REQUIRING CERTAIN ENUMERATED ACTIONS "OR SUCH OTHER AS WILL CARRY OUT
THE PURPOSE OF THIS CHAPTER." ACCORDINGLY, IT IS CONCLUDED THAT THE
AUTHORITY IS FULLY EMPOWERED-- UNDER SECTIONS 7118(A)(7) AND 7120(F)--
TO REVOKE PATCO'S EXCLUSIVE RECOGNITION STATUS BASED UPON THE
CIRCUMSTANCES OF THIS CASE.
THE FURTHER ARGUMENT BY PATCO (AND AFGE) THAT ONLY THE AUTHORITY IS
EMPOWERED TO CONDUCT A HEARING WHICH MAY LEAD TO REVOCATION OF EXCLUSIVE
RECOGNITION STATUS UNDER SECTION 7120(F) IS EQUALLY UNPERSUASIVE. THE
HEARING CONDUCTED BY THE CHIEF ALJ IN THIS CASE INVOLVED A COMPLAINT
ISSUED BY THE GENERAL COUNSEL ALLEGING THAT PATCO HAD COMMITTED UNFAIR
LABOR PRACTICES UNDER SECTION 7116 OF THE STATUTE AND THEREFORE WAS
CONSISTENT WITH THE MANDATE IN SECTION 7118(A)(6) THAT SUCH PROCEEDINGS
BE CONDUCTED BY "(T)HE AUTHORITY (. . . OR ANY INDIVIDUAL EMPLOYED BY
THE AUTHORITY AND DESIGNATED FOR SUCH PURPOSE) . . . ." MOREOVER, WHILE
THE HEARING WAS CONDUCTED AND RECOMMENDATIONS WERE MADE BY THE CHIEF ALJ
PURSUANT TO AN APPROPRIATE DELEGATION, THE AUTHORITY, AS STATED ABOVE,
HAS REVIEWED THE CHIEF ALJ'S RECOMMENDATIONS AND SHALL MAKE THE FINAL
DECISION CONCERNING ALL ASPECTS OF THIS CASE INCLUDING AN APPROPRIATE
REMEDY FOR PATCO'S VIOLATION OF SECTION 7116(B)(7)(A) AND (B) OF THE
STATUTE.
NEXT, AS TO PATCO'S ALTERNATIVE ARGUMENT THAT REVOCATION IS
UNWARRANTED IN THE CIRCUMSTANCES OF THIS CASE, AND THAT THE AUTHORITY
SHOULD EXERCISE ITS DISCRETION UNDER THE STATUTE TO IMPOSE A LESSER
REMEDY THAN DECERTIFICATION, FOR THE REASONS FULLY STATED IN SUBPART 2
SUPRA, THE AUTHORITY IS WITHOUT DISCRETION IN THESE CIRCUMSTANCES TO
IMPOSE A LESSER REMEDY UNDER THE MANDATE OF SECTION 7120(F). IN ANY
EVENT, EVEN ASSUMING A BROADER DISCRETION, PATCO'S EXCLUSIVE RECOGNITION
STATUS MUST BE REVOKED IN THE CIRCUMSTANCES OF THE PRESENT CASE. AS TO
THE CONTENTION THAT REVOCATION IS INAPPROPRIATE BECAUSE PATCO WAS
DEPRIVED OF AN OPPORTUNITY TO SUBMIT EVIDENCE CONCERNING FAA'S ALLEGED
BAD FAITH BARGAINING AS "MITIGATING CIRCUMSTANCES," IT IS NOTED-- AS DID
JUDGE PLATT IN DENYING PATCO'S MOTION TO VACATE THE 1970 PERMANENT
INJUNCTION REFERRED TO SUPRA AT 17-- THAT PATCO HAD BEEN THREATENING TO
STRIKE FOR SEVERAL MONTHS PRIOR TO THE ACTUAL STRIKE. ACCORDINGLY,
PATCO CLEARLY HAD AMPLE NOTICE OF THE NEED FOR AND OPPORTUNITY TO GATHER
EVIDENCE WITH RESPECT TO SUCH ALLEGEDLY MITIGATING CIRCUMSTANCES, AND
THE CHIEF ALJ THEREFORE DID NOT ABUSE HIS DISCRETION IN DENYING PATCO'S
REQUEST FOR A LENGTHY ADJOURNMENT TO ACCUMULATE SUCH EVIDENCE WHERE THE
CONSEQUENCE OF GRANTING THE MOTION WOULD HAVE BEEN TO DELAY UNDULY THE
COMPLETION OF THE HEARING AND ISSUANCE OF A RECOMMENDED DECISION AND
ORDER. IN ADDITION, THE CHIEF ALJ PERMITTED PATCO TO MAKE AN OFFER OF
PROOF AT THE HEARING AND TO SUBMIT ARGUMENT IN ITS POST-HEARING BRIEF
CONCERNING SUCH ALLEGEDLY MITIGATING FACTORS. (SEE N. 15, SUPRA.)
PATCO'S ARGUMENTS IN THIS REGARD HAVE BEEN CAREFULLY CONSIDERED; IT IS
CONCLUDED, HOWEVER, IN AGREEMENT WITH THE CHIEF ALJ, THAT EVEN IF PATCO
WERE ABLE TO ESTABLISH FAA'S BAD FAITH DURING NEGOTIATIONS, /41/ SUCH
CIRCUMSTANCES WOULD NEITHER JUSTIFY THE STRIKE /42/ NOR CAUSE THE
AUTHORITY TO ISSUE A REMEDY OTHER THAN REVOCATION OF PATCO'S STATUS AS
EXCLUSIVE REPRESENTATIVE. FINALLY, WITH RESPECT TO MITIGATING
CIRCUMSTANCES, IT IS NOTED THAT ALTHOUGH THE CHIEF ALJ OFFERED PATCO
EVERY OPPORTUNITY TO PRESENT EVIDENCE OR TO MAKE AN OFFER OF PROOF WITH
RESPECT TO ANY EFFORTS ON ITS PART TO PREVENT OR STOP THE STRIKE, PATCO
EXPRESSLY REJECTED THOSE OPPORTUNITIES.
MOREOVER, CONTRARY TO PATCO'S ASSERTION THAT THE PUBLIC INTEREST
REQUIRES ITS STATUS AS EXCLUSIVE REPRESENTATIVE OF THE AIR TRAFFIC
CONTROL SPECIALISTS TO CONTINUE SO THAT THE STRIKE MAY BE SETTLED
AMICABLY AND THE RIGHTS OF UNIT EMPLOYEES MAY BE ADEQUATELY PROTECTED,
IT IS CONCLUDED, AS ALREADY MENTIONED, THAT ADHERENCE TO THE INTENT OF
CONGRESS COMPELS THE REVOCATION OF PATCO'S EXCLUSIVE RECOGNITION STATUS
AND FINDING THAT, AS OF THIS DATE, PATCO IS NOT A LABOR ORGANIZATION
UNDER THE STATUTE. AS TO THE RIGHTS OF EMPLOYEES NOW WORKING, THEIR
RIGHTS WILL NOT BE VITIATED BY REVOKING THE CERTIFICATION OF PATCO. THE
STATUTORY FRAMEWORK PROVIDES A READY MEANS BY WHICH THOSE AIR TRAFFIC
CONTROLLERS WHO ARE NOW WORKING MAY SEEK CERTIFICATION OF AN EXCLUSIVE
BARGAINING REPRESENTATIVE OF THEIR OWN CHOOSING TO REPRESENT THEM IN
COLLECTIVE BARGAINING AND TO PARTICIPATE IN DECISIONS AFFECTING THEM.
SEE SECTION 7111 OF THE STATUTE.
FURTHER IN THE ABOVE REGARD, THE STATUTE, WHICH GRANTS THE RIGHT TO
BARGAIN COLLECTIVELY, /43/ PRESCRIBES A FRAMEWORK WITHIN WHICH
COLLECTIVE BARGAINING IN THE FEDERAL SECTOR MUST BE CONDUCTED IN THE
PUBLIC INTEREST. AS PART OF THIS FRAMEWORK AND IN LIEU OF A RIGHT TO
STRIKE, CONGRESS ADOPTED ALTERNATIVE MEANS FOR RESOLVING COLLECTIVE
BARGAINING IMPASSES. AS APPLICABLE TO THIS CASE, THE STATUTE PROVIDES
THAT WHERE THE PARTIES HAVE REACHED AN IMPASSE IN NEGOTIATIONS AND THE
FEDERAL MEDIATION AND CONCILIATION SERVICE HAS NOT BEEN SUCCESSFUL IN
ASSISTING THE PARTIES TO REACH A VOLUNTARY SETTLEMENT OF THE DISPUTE,
THE FEDERAL SERVICE IMPASSES PANEL (THE PANEL) IS EMPOWERED TO ASSIST BY
USING A VARIETY OF TECHNIQUES INCLUDING, IF APPROPRIATE, THE IMPOSITION
OF A BINDING SETTLEMENT ON THE PARTIES. SEE SECTION 7119 OF THE
STATUTE. HOWEVER, OFFICIAL NOTICE IS TAKEN OF THE FACT THAT THE PANEL'S
OFFICIAL RECORDS REVEAL THAT PATCO NEVER SOUGHT THE PANEL'S ASSISTANCE
PRIOR OR SUBSEQUENT TO ITS UNLAWFUL ACTIVITIES. /44/
BY WILLFULLY AND INTENTIONALLY CALLING, PARTICIPATING IN AND
CONDONING A STRIKE, PATCO CLEARLY DISREGARDED THESE PROCEDURES IN
DEROGATION OF THE COLLECTIVE BARGAINING PRINCIPLES ENUNCIATED IN THE
STATUTE. /45/ BY ENGAGING IN THE STRIKE, PATCO NOT ONLY REJECTED THE
CONGRESSIONALLY PRESCRIBED FRAMEWORK FOR COLLECTIVE BARGAINING IN THE
FEDERAL SECTOR BUT ALSO PATCO ATTEMPTED TO TEAR THAT FRAMEWORK APART AND
REPLACE IT WITH COLLECTIVE BARGAINING ON PATCO'S OWN TERMS IN DEFIANCE
OF THE PUBLIC INTEREST. CERTAINLY THE STATUTE PROMOTES COLLECTIVE
BARGAINING-- BUT ONLY ON THE TERMS AND CONDITIONS SET FORTH BY CONGRESS
WITHIN THE FRAMEWORK OF THE STATUTE. /46/ TO DIRECT ANY LESSER PENALTY
THAN REVOCATION IN THESE CIRCUMSTANCES WOULD BE TANTAMOUNT TO THE
AUTHORITY'S CONDONATION OF STRIKE ACTIVITY IN DEFIANCE OF THE INTENT OF
CONGRESS UNDER THE STATUTE. UNDER THE CIRCUMSTANCES, PATCO'S CONTENTION
THAT THE PUBLIC INTEREST WOULD NOT BE ENHANCED BY REVOCATION OF ITS
EXCLUSIVE RECOGNITION STATUS MUST BE REJECTED. /47/
IV. SUMMARY, ORDER AND NOTICE
IN SUMMARY, THE STATUTE, IN THE FACTS AND CIRCUMSTANCES OF THIS CASE,
PLAINLY REQUIRES REVOCATION OF PATCO'S STATUS AS THE EXCLUSIVELY
RECOGNIZED REPRESENTATIVE OF THE EMPLOYEES IN THE NATIONWIDE BARGAINING
UNIT OF AIR TRAFFIC CONTROL SPECIALISTS EMPLOYED BY FAA. FURTHER, THE
STATUTE DICTATES THAT AS OF THIS DATE PATCO IS NO LONGER A LABOR
ORGANIZATION WITHIN THE MEANING OF SECTION 7103(A)(4). /48/
TURNING NOW TO THE EXCEPTIONS OF THE GENERAL COUNSEL AND FAA /49/
CONCERNING THE ABSENCE OF ANY REFERENCE TO THE REVOCATION OF PATCO'S
EXCLUSIVE RECOGNITION STATUS IN THE CHIEF ALJ'S RECOMMENDED NOTICE, THIS
EXCEPTION IS WELL TAKEN. NOTICE OF SUCH A CHANGE IN THE BARGAINING
RELATIONSHIP OF THE PARTIES HEREIN SHOULD BE GIVEN THE WIDEST
CIRCULATION IN ORDER TO ENSURE, TO THE MAXIMUM EXTENT POSSIBLE, THAT ALL
THOSE AFFECTED ARE SUFFICIENTLY INFORMED. ACCORDINGLY, THE CHIEF ALJ'S
RECOMMENDED NOTICE SHOULD BE SO MODIFIED. LIKEWISE, THE AUTHORITY
SHOULD MAKE COPIES OF THE NOTICE AVAILABLE TO FAA FOR POSTING AND
DISSEMINATION TO AFFECTED PRESENT AND FORMER EMPLOYEES.
FINALLY, AS PATCO'S EXCLUSIVE RECOGNITION STATUS HAS BEEN REVOKED AND
IT IS NOT AS OF THIS DATE A LABOR ORGANIZATION WITHIN THE MEANING OF THE
STATUTE, AND AS THE AUTHORITY SHOULD ISSUE A CEASE AND DESIST ORDER.
ACCORDINGLY, THE EXCEPTIONS OF PATCO AND THE GENERAL COUNSEL IN THIS
REGARD SHOULD BE SUSTAINED, AND THE CHIEF ALJ'S RECOMMENDED ORDER SHOULD
BE MODIFIED TO DELETE SUCH CEASE AND DESIST REQUIREMENT. /50/
DATED, WASHINGTON, D.C., OCTOBER 22, 1981.
HENRY B. FRAZIER III, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
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FOOTNOTES
/1/ MEMBER APPLEWHAITE'S SEPARATE OPINION IS SET FORTH, INFRA.
CHAIRMAN HAUGHTON'S OPINION CONCURRING IN PART AND DISSENTING IN PART IS
ALSO SET FORTH, INFRA.
/2/ THE STATUTE IS CODIFIED AT 5 U.S.C. 7101 (SUPP. III, 1979). ALL
REFERENCES TO SECTIONS HEREIN ARE TO PROVISIONS OF THE STATUTE, UNLESS
OTHERWISE STATED. SECTION 7116(B) PROVIDES, IN PERTINENT PART, AS
FOLLOWS:
(B) FOR THE PURPOSE OF THIS CHAPTER, IT SHALL BE AN UNFAIR LABOR
PRACTICE OF 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 TO STOP SUCH ACTIVITY(.)
/3/ FAA AND THE GENERAL COUNSEL MOVED TO REDUCE FROM 25 TO 7 DAYS THE
TIME LIMIT SPECIFIED IN SECTION 2423.26(B) OF THE AUTHORITY'S RULES (5
C.F.R. 2423.26(B)) FOR FILING EXCEPTIONS TO THE CHIEF ALJ'S RECOMMENDED
DECISION AND ORDER, AND PATCO MOVED TO EXTEND SUCH TIME LIMIT TO 60
DAYS. ON AUGUST 19, 1981, IN RESPONSE TO THESE MOTIONS, THE AUTHORITY,
"DUE TO THE SPECIAL NATURE OF THE ALLEGED UNFAIR LABOR PRACTICES
INVOLVED IN THIS CASE, AND THE SIGNIFICANCE OF THE CRITICAL
CIRCIMSTANCES SURROUNDING THE CASE, INCLUDING THE APPARENT IMPACT ON THE
NATIONAL AIR TRAFFIC SYSTEM," ORDERED THE PARTIES TO FILE EXCEPTIONS NO
LATER THAN THE CLOSE OF BUSINESS ON SEPTEMBER 1, 1981 (19 DAYS AFTER THE
CHIEF ALJ'S DECISION) AND TO FILE CROSS-EXCEPTIONS, IF ANY, WITHIN 5
DAYS AFTER SERVICE OF ANY EXCEPTIONS BUT NO LATER THAN SEPTEMBER 8,
1981.
IN ITS EXCEPTIONS, WHICH WERE TIMELY FILED IN ACCORDANCE WITH THE
AUTHORITY'S AUGUST 19 ORDER, PATCO STATES THAT IS "MAINTAINS ITS
OPPOSITION" TO THE SLIGHT REDUCTION IN THE TIME LIMITS ESTABLISHED IN
THE AUTHORITY'S ORDER. THERE IS NO MERIT TO THIS OPPOSITION.
AS RULED BY THE SUPREME COURT IN AMERICAN FARM LINES V. BLACK BALL
FREIGHT SERVICE, 397 U.S. 532, 539(1970):
(I)T IS ALWAYS WITHIN THE DISCRETION OF A COURT OR AN ADMINISTRATIVE
AGENCY TO RELAX OR
MODIFY ITS PROCEDURAL RULES ADOPTED FOR THE ORDERLY TRANSACTION OF
BUSINESS BEFORE IT WHEN IN
A GIVEN CASE THE ENDS OF JUSTICE REQUIRE IT. THE ACTION OF EITHER IN
SUCH A CASE IS NOT
REVIEWABLE EXCEPT UPON A SHOWING OF SUBSTANTIAL PREJUDICE TO THE
COMPLAINING PARTY.
THE ENDS OF JUSTICE CLEARLY REQUIRED MODIFICATION OF THE AUTHORITY'S
PROCEDURAL RULES CONCERNING THE TIME LIMITS FOR FILING EXCEPTIONS AND
CROSS-EXCEPTIONS IN THIS CASE. MOREOVER, PATCO HAS NEITHER ALLEGED NOR
DEMONSTRATED THAT IT WAS PREJUDICED IN ANY MANNER BY THE AUTHORITY'S
ORDER. IN THIS REGARD, IT IS NOTED THAT PATCO FILED BOTH EXCEPTIONS AND
CROSS-EXCEPTIONS WITHIN THE SPECIFIED TIME LIMITS. ALSO, AS DISCUSSED
INFRA, PATCO'S REQUEST TO PRESENT ORAL ARGUMENT WAS GRANTED BY THE
AUTHORITY, AND PATCO, AS WELL AS THE AMICI CURIAE (SEE NOTE 4, INFRA),
PRESENTED ARGUMENTS AT THAT TIME.
/4/ PURSUANT TO SECTION 2429.9 OF ITS RULES (5 C.F.R. 2429.9), THE
AUTHORITY HAD GRANTED REQUESTS BY AFGE AND THE AFL-CIO TO PARTICIPATE IN
ORAL ARGUMENT AS AMICI CURIAE. ADDITIONALLY, AFGE HAD BEEN GRANTED
PERMISSION TO FILE AN AMICUS BRIEF, WHICH BRIEF HAS BEEN FULLY
CONSIDERED BY THE AUTHORITY.
/5/ 5 U.S.C. 7311(3) PROHIBITS AN INDIVIDUAL FROM ACCEPTING OR
HOLDING A POSITION IN THE FEDERAL GOVERNMENT IF SUCH INDIVIDUAL
"PARTICIPATES IN A STRIKE . . . AGAINST THE GOVERNMENT OF THE UNITED
STATES . . . ."
/6/ 18 U.S.C. 1918 MAKES IT A FELONY PUNISHABLE BY FINE,
IMPRISONMENT, OR BOTH, FOR ANY INDIVIDUAL TO VIOLATE 5 U.S.C. 7311(3).
IN ADDITION, SUCH CONDUCT WOULD VIOLATE THE OATH AGAINST PARTICIPATION
IN A STRIKE AGAINST THE GOVERNMENT OF THE UNITED STATES WHICH ALL
PROSPECTIVE FEDERAL EMPLOYEES ARE REQUIRED TO TAKE. SEE 5 U.S.C. 3333.
/7/ SECTION 19(B)(4) OF E.O. 11491, AS AMENDED, MADE IT AN UNFAIR
LABOR PRACTICE FOR A LABOR ORGANIZATION TO "CALL OR ENGAGE IN A STRIKE,
WORK STOPPAGE, OR SLOWDOWN . . . OR CONDONE ANY SUCH ACTIVITY BY FAILING
TO TAKE AFFIRMATIVE ACTION TO PREVENT OR STOP IT . . . ."
/8/ SEE SECTION 2(E)(2) OF E.O. 11491, AS AMENDED.
/9/ SECTION 7101(B) OF THE STATUTE PROVIDES IN THIS CONNECTION THAT
THE PROVISIONS OF THE STATUTE "SHOULD BE INTERPRETED IN A MANNER
CONSISTENT WITH THE REQUIREMENT OF AN EFFECTIVE AND EFFICIENT
GOVERNMENT."
/10/ JEFFERSONIAN CYCLOPEDIA (J. FOLEY, ED. 1900), LETTER TO BENJAMIN
WARING IV, 378 (W., MARCH 1801).
/10A/ POUND, THE FUTURE OF LAW (1937), 47 YALE L.J. 1, 13.
/11/ REMARKS IN NASHVILLE AT THE 90TH ANNIVERSARY CONVOCATION OF
VANDERBILT UNIVERSITY, PUB. PAPERS 1963, AT 408.
/12/ SIMILAR TO THE ACTION OF THE CHIEF ALJ, OFFICIAL NOTICE IS HERE
TAKEN OF THE DECISIONS RENDERED BY THE UNITED STATES DISTRICT COURT OF
THE DISTRICT OF COLUMBIA IN UNITED STATES V. PATCO, NO. 81-1805 (D.D.C.
AUG. 3, 1981), IN WHICH PATCO WAS FOUND IN CONTEMPT OF THAT COURT'S
TEMPORARY RESTRAINING ORDER ENJOINING IT FROM TAKING PART IN ANY STRIKE.
/13/ SECTION 7118(A)(6) OF THE STATUTE PROVIDES, IN PERTINENT PART:
THE AUTHORITY (OR ANY MEMBER THEREOF OR ANY INDIVIDUAL EMPLOYED BY
THE AUTHORITY AND
DESIGNATED FOR SUCH PURPOSE) SHALL CONDUCT A HEARING ON THE COMPLAINT
NOT EARLIER THAN 5 DAYS
AFTER THE DATE ON WHICH THE COMPLAINT IS SERVED. . . .
/14/ SECTION 2423.12(B) OF THE AUTHORITY'S RULES (5 C.F.R.
2423.12(B)) PROVIDES, IN PERTINENT PART:
(B) THE COMPLAINT SHALL INCLUDE:
. . . .
(3) NOTICE OF THE TIME AND PLACE FIXED FOR THE HEARING WHICH SHALL
NOT BE EARLIER THAN FIVE
(5) DAYS AFTER SERVICE OF THE COMPLAINT(.)
/15/ IN A RELATED CONTENTION, PATCO ASSERTS THAT IT WAS IMPROPERLY
DENIED AN OPPORTUNITY TO INTRODUCE EVIDENCE THAT WORKING CONDITIONS WERE
UNSAFE FOR THE AIR TRAFFIC CONTROLLERS AND DANGEROUS TO THE PUBLIC OR
THAT FAA HAD BEEN NEGOTIATING IN BAD FAITH. HOWEVER, AS THE CHIEF ALJ
CORRECTLY STATED, AND PATCO DOES NOT APPEAR TO DISPUTE SUCH STATEMENT,
NEITHER THE STATUTE NOR ITS LEGISLATIVE HISTORY "SUGGESTS THAT THERE MAY
EXIST A DEGREE OF PROVOCATION OR OTHER EXCULPATORY CIRCUMSTANCE WHICH
MIGHT RENDER STRIKE ACTION PRIVILEGED." INSOFAR AS EVIDENCE MAY HAVE
BEEN DIRECTED TO THE QUESTION OF THE APPROPRIATE REMEDY, THE AUTHORITY
NOTES THAT THE CHIEF ALJ, EXERCISING HIS DISCRETION UNDER SECTION
2423.19 OF THE AUTHORITY'S RULES (5 C.F.R. 2423.19), PERMITTED PATCO TO
MAKE AN OFFER OF PROOF AND TO BRIEF MATTERS IN MITIGATION AND THAT PATCO
DID SO.
/16/ SECTION 2423.25 OF THE AUTHORITY'S RULES (5 C.F.R. 2423.25) IN
EFFECT AT THAT TIME PROVIDED, IN PERTINENT PART:
ANY PARTY DESIRING TO SUBMIT A BRIEF TO THE ADMINISTRATIVE LAW JUDGE
SHALL FILE THE
ORIGINAL AND TWO (2) COPIES WITHIN A REASONABLE TIME FIXED BY THE
ADMINISTRATIVE LAW JUDGE,
BUT NOT IN EXCESS OF THIRTY (30) DAYS FROM THE CLOSE OF THE HEARING.
. . .
/17/ IT IS NOTED THAT FAA AND THE GENERAL COUNSEL ALSO FILED
EXCEPTIONS TO THE CHIEF ALJ'S RECOMMENDED DECISION AND ORDER.
/18/ SEE UNITED STATES V. PATCO, CITED AT N. 12 SUPRA, SLIP OP. AT 2
(AUG. 3, 1981).
/19/ SECTION 7120(F) OF THE STATUTE 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 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.
/20/ SECTION 7120(D) PROVIDES:
(D) THE ASSISTANT SECRETARY (OF LABOR FOR LABOR-MANAGEMENT RELATIONS)
SHALL PRESCRIBE SUCH
REGULATIONS AS ARE NECESSARY TO CARRY OUT THE PURPOSES OF THIS
SECTION. SUCH REGULATIONS
SHALL CONFORM GENERALLY TO THE PRINCIPLES APPLIED TO LABOR
ORGANIZATIONS IN THE PRIVATE
SECTOR. COMPLAINTS OF VIOLATIONS OF THIS SECTION SHALL BE FILED WITH
THE ASSISTANT
SECRETARY. IN ANY MATTER ARISING UNDER THIS SECTION, THE ASSISTANT
SECRETARY MAY REQUIRE A
LABOR ORGANIZATION TO CEASE AND DESIST FROM VIOLATIONS OF THIS
SECTION AND REQUIRE IT TO TAKE
SUCH ACTIONS AS HE CONSIDERS APPROPRIATE TO CARRY OUT THE POLICIES OF
THIS SECTION.
/21/ SECTION 7105(E)(2) PROVIDES:
(2) THE AUTHORITY MAY DELEGATE TO ANY ADMINISTRATIVE LAW JUDGE
APPOINTED UNDER SUBSECTION
(D) OF THIS SECTION ITS AUTHORITY UNDER SECTION 7118 OF THIS TITLE TO
DETERMINE WHETHER ANY
PERSON HAS ENGAGED IN OR IS ENGAGING IN AN UNFAIR LABOR PRACTICE.
/22/ THE AFL-CIO, WHICH PARTICIPATED AS AN AMICUS CURIAE IN THE ORAL
ARGUMENT, CONTENDS THAT THE CHIEF ALJ ERRED IN EXCLUDING AND FAILING TO
CONSIDER EVIDENCE OF MITIGATING CIRCUMSTANCES. HOWEVER, AS DISCUSSED AT
N. 15 SUPRA, THE CHIEF ALJ PERMITTED PATCO TO MAKE AN OFFER OF PROOF AND
TO BRIEF MATTERS IN MITIGATION, AS THEY RELATED TO THE QUESTION OF AN
APPROPRIATE REMEDY, AND PATCO DID SO.
/23/ AFGE, IN ITS AMICUS BRIEF, RAISES SUBSTANTIALLY THE SAME
ARGUMENTS ADVANCED BY PATCO AND SET FORTH ABOVE. ACCORDINGLY, ALTHOUGH
SUCH ARGUMENTS WILL NOT BE RESTATED HEREIN, THEY HAVE BEEN FULLY
CONSIDERED BY THE AUTHORITY IN REACHING ITS DECISION.
/24/ SECTION 7103(A)(4)(D) PROVIDES:
(A) FOR THE PURPOSE OF THIS CHAPTER--
. . . .
(4) 'LABOR ORGANIZATION' MEANS AN ORGANIZATION COMPOSED IN WHOLE OR
IN PART OF EMPLOYEES,
IN WHICH EMPLOYEES PARTICIPATE AND PAY DUES, AND WHICH HAS A PURPOSE
THE DEALING WITH AN
AGENCY CONCERNING GRIEVANCES AND CONDITIONS OF EMPLOYMENT, BUT DOES
NOT INCLUDE--
. . . .
(D) AN ORGANIZATION WHICH PARTICIPATES IN THE CONDUCT OF A STRIKE
AGAINST THE GOVERNMENT OR
ANY AGENCY THEREOF OR IMPOSES
/25/ THE PARTIES' FURTHER CROSS-EXCEPTIONS, OPPOSITIONS, AND
STATEMENTS ESSENTIALLY RESTATED THE PARTIES' RESPECTIVE CONTENTIONS SET
FORTH IN DETAIL ABOVE. ADDITIONALLY, THE GENERAL COUNSEL MOVED TO
STRIKE AS "SCURRILOUS" PATCO'S CONTENTION THAT THE CHIEF ALJ MAY HAVE
HAD IMPROPER EX PARTE CONTACTS WITH THE GENERAL COUNSEL. IN VIEW OF THE
DISCUSSION AT 11 SUPRA, IT IS UNNECESSARY TO ADDRESS THE GENERAL
COUNSEL'S MOTION.
/26/ PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION, INC., 1
A/SLMR 71(1971).
/27/ PLAINTIFF AIR TRANSPORT ASSOCIATION OF AMERICA AND DEFENDANT
PATCO ENTERED INTO A STIPULATION OF PERMANENT INJUNCTION SO ORDERED BY
THE COURT ON SEPT. 9, 1970. SEE AIR TRANSPORT ASSOCIATION V.
PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION, 313 F.SUPP. 181
(E.D.N.Y. 1970), REV'D IN PART SUB NOM. UNITED STATES V. PATCO, 438 F.2D
79 (2D CIR. 1970), CERT. DENIED, 402 U.S. 915(1971).
/28/ PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION, INC.,
AFFILIATED WITH THE NATIONAL MARINE ENGINEERS' BENEFICIAL ASSOCIATION,
AFL-CIO, 1 A/SLMR 268(1971).
/29/ SEE AIR TRANSPORT ASSOCIATION V. PATCO, 453 F.SUPP. 1287
(E.D.N.Y. 1978), AFF'D 594 F.2D 851 (2D CIR. 1978), CERT. DENIED, 441
U.S. 944(1979).
/30/ AIR TRANSPORT ASSOCIATION OF AMERICA V. PATCO, 70 CIV. 400
(E.D.N.Y. JUNE 18, 1981). JUDGE PLATT'S DECISION IS PRESENTLY ON APPEAL
TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT (NO.
81-7447).
/31/ SEE N. 2, SUPRA.
/32/ FOR THE LEGISLATIVE HISTORY OF THE STATUTE, SEE SUBCOMM. ON
POSTAL PERSONNEL AND MODERNIZATION OF THE COMM, ON POST OFFICE AND CIVIL
SERVICE, 96TH CONG., 1ST SESS., LEGISLATIVE HISTORY OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, TITLE VII OF THE CIVIL
SERVICE REFORM ACT OF 1978 (COMM. PRINT NO. 96-7) (HEREINAFTER CITED AS
LEGIS. HIST.).
/33/ IT DID CONTAIN A SOMEWHAT RELATED PROVISION, SECTION
7202(A)(3)(B), DEFINING "LABOR ORGANIZATION," WHICH LIKE SECTION 2(E)(2)
OF EXECUTIVE ORDER 11491, AS AMENDED, PROVIDED IN RELEVANT PART:
SEC. 7202. DEFINITIONS; APPLICATION
(A) FOR PURPOSES OF THIS CHAPTER--
. . . .
(3) 'LABOR ORGANIZATION' . . . DOES NOT INCLUDE AN ORGANIZATION
WHICH--
. . . .
(B) ASSISTS, OR PARTICIPATES, IN THE CONDUCE TO A STRIKE AGAINST THE
GOVERNMENT OF THE
UNITED STATES OR ANY AGENCY THEREOF OR IMPOSES A DUTY OR OBLIGATION
TO CONDUCT, ASSIST, OR
PARTICIPATE IN SUCH A STRIKE(.) S. 2640, 95TH CONG., 2D SESS. (JULY
10, 1978), LEGIS. HIST. AT
500-502.
HOWEVER, THIS PROVISION DID NOT REFER TO REVOCATION OF CERTIFICATION
AS SUCH, BUT TO ELIMINATION OF THE UNION AS A "LABOR ORGANIZATION" FOR
ALL PURPOSES OF THE BILL.
/34/ THE PROVISION, AS ORIGINALLY PROPOSED BY SENATOR HATCH, DID NOT
CONTAIN THE PHRASE "BY OMISSION OR COMMISSION HAS WILLFULLY AND
INTENTIONALLY" (VIOLATED SECTION 7216(B)(4)(B). ALTHOUGH THERE WAS
DEBATE WITH REGARD TO THE PROVISION GENERALLY, THERE WAS NO DISCUSSION
INDICATING THE REASON FOR THIS PARTICULAR CHANGE.
/35/ DURING THE DEBATE ON THIS AMENDMENT, SENATOR JAVITS EXPRESSED
SOME CONCERN WITH REGARD TO THE PROCEDURES WHICH WOULD BE TAKEN BEFORE
A
UNION'S EXCLUSIVE RECOGNITION STATUS COULD BE REVOKED. SENATOR HATCH
CLARIFIED THIS MATTER BY INDICATING THAT A FINDING THAT A UNION CONDONED
THE ILLEGAL STRIKE ACTIVITIES WOULD BE MADE PURSUANT TO AN UNFAIR LABOR
PRACTICE PROCEEDING, WHICH INCLUDES NOTICE AND HEARING. HE FURTHER
INDICATED THAT IT WOULD BE UP TO THE FEDERAL LABOR RELATIONS AUTHORITY
TO DETERMINE WHETHER REVOCATION OF CERTIFICATION WOULD TAKE EFFECT
IMMEDIATELY FOLLOWING SUCH A FINDING, EVEN THOUGH THERE MAY BE AN
APPEAL, OR WHETHER IT WOULD NOT TAKE EFFECT UNTIL THERE WAS FINAL
RESOLUTION OF THE MATTER, WHICH MIGHT BE AN APPEAL TO THE UNITED STATES
SUPREME COURT. SEE 124 CONG.REC. S14311 (DAILY ED. AUG. 24, 1978),
LEGIS.HIST.AT 1029.
/36/ THE FOLLOWING DISCUSSION CONCERNING THIS PROVISION TOOK PLACE
BETWEEN CONGRESSMEN FORD AND ERLENBORN:
MR. FORD:
MR. CHAIRMAN, I WOULD LIKE TO ASK THE GENTLEMEN THIS QUESTION: IT IS
THE UNDERSTANDING OF
THE GENTLEMEN FROM ILLINOIS (MR. ERLENBORN) THAT IT WOULD STILL BE UP
TO THE LABOR AUTHORITY
TO DETERMINE WHETHER OR NOT THIS PROVISION APPLIES?
MR. ERLENBORN:
MR. CHAIRMAN, IF THE GENTLEMAN WILL YIELD, YES, THAT IS CORRECT.
THIS WOULD LEAVE THE
DISCRETION IN THE FLRA AS TO WHETHER OR NOT THE DECERTIFICATION (SIC)
SHOULD BE APPLIED. IT
WILL NOT HAPPEN AUTOMATICALLY. 124 CONG.REC. H9645 (DAILY ED. SEPT.
13, 1978), LEGIS. HIST. AT
947.
/37/ SEE, E.G., ERLENBORN-FORD DEBATE ON THE QUESTION OF WHETHER
TITLE VII PRE-EMPTED EXISTING FEDERAL LAW MAKING ILLEGAL STRIKES BY
FEDERAL EMPLOYEES. 124 CONG. REC. H9454-55 (DAILY ED. SEPT. 11, 1978),
LEGIS. HIST. AT 880-882.
/38/ CHAIRMAN HAUGHTON AND MEMBER APPLEWHAITE ERRONEOUSLY CONCLUDE,
IN SUBSTANCE, THAT THE AUTHORITY HAS UNLIMITED DISCRETION TO DETERMINE
THE "APPROPRIATE DISCIPLINARY ACTION" TO BE TAKEN AGAINST ANY LABOR
ORGANIZATION FOUND TO HAVE WILLFULLY AND INTENTIONALLY VIOLATED SECTION
7116(B)(7). IN OTHER WORDS, ACCORDING TO MY COLLEAGUES, CONGRESS LEFT
IT COMPLETELY UP TO THE AUTHORITY TO DETERMINE "THE INSTANCES" WHEN
REVOCATION IS "INAPPROPRIATE." THIS CONCLUSION DISREGARDS THE STATED
INTENT OF CONGRESS IN ITS LEGISLATIVE HISTORY AND PURPOSE AS SET FORTH
ABOVE. CONGRESS OBVIOUSLY CONFINED THIS DISCRETION TO WILDCAT STRIKES
OR OTHER SUCH ACTIVITIES IN WHICH THE LABOR ORGANIZATION INVOLVED MADE
EFFORTS TO PREVENT OR STOP THE ILLEGAL ACTIVITY. CONTRARY TO THE
FURTHER CONTENTIONS OF MY COLLEAGUES, CONGRESS DID NOT INDICATE ANY
INTENT TO EXTEND THE BROAD DISCRETION VESTED IN THE AUTHORITY UNDER
SECTION 7118(A)(7) TO THE CONFINED CIRCUMSTANCES IN SECTION 7120(F) OF
THE STATUTE.
/39/ IT IS WHOLLY UNNECESSARY TO ADDRESS THE QUESTION OF WHETHER, AT
SOME UNSPECIFIED TIME IN THE FUTURE, PATCO OR SOME SUCCESSOR
ORGANIZATION MAY MEET THE DEFINITION OF A LABOR ORGANIZATION AND THEREBY
ACQUIRE THE RIGHTS AND OBLIGATIONS OF A LABOR ORGANIZATION UNDER THE
STATUTE. THIS IS A SPECULATIVE QUESTION WHICH SHOULD BE ADDRESSED ONLY
IN THE CONTEXT OF A CASE WHICH APPROPRIATELY RAISES THE ISSUE, E.G., A
REPRESENTATION CASE WHEREIN CERTIFICATION AS AN EXCLUSIVE BARGAINING
REPRESENTATIVE IS SOUGHT AND THE ISSUE OF WHETHER AT THAT TIME THE UNION
INVOLVED MEETS THE EXACTING QUALIFICATIONS OF A "LABOR ORGANIZATION"
UNDER SECTION 7103(A)(4) IS LITIGATED. IT IS THUS UNNECESSARY TO DECIDE
IN THE PRESENT CASE WHETHER PATCO AT ANY TIME IN THE FUTURE CAN SATISFY
THESE STATUTORY REQUIREMENTS. CONSEQUENTLY, THE EXCEPTIONS OF THE
GENERAL COUNSEL AND FAA RELATING TO PERMANENT DISQUALIFICATION OF PATCO
ARE REJECTED. ACCORDINGLY, IN AGREEMENT WITH THE CHIEF ALJ, THE
AUTHORITY SHOULD ADOPT A REMEDY IN THIS CASE WHICH IS SILENT WITH
RESPECT TO SUCH MATTERS.
/40/ CONSISTENT WITH THE CONCLUSION THAT THE ASSISTANT SECRETARY'S
ISSUANCE OF REGULATIONS GOVERNING "STANDARDS OF CONDUCT FOR LABOR
ORGANIZATIONS" PURSUANT TO SECTION 7120(D) OF THE STATUTE IS IRRELEVANT
TO THE AUTHORITY'S POWER TO ACT PURSUANT TO SECTION 7120(F), IT IS NOTED
THAT THE ASSISTANT SECRETARY HAS ISSUED SUCH REGULATIONS (29 C.R.F.
207-209) AND THAT THERE IS NO REFERENCE IN THOSE REGULATIONS TO
REVOCATION UNDER SECTION 7120(F).
/41/ IT SHOULD BE NOTED, HOWEVER, THAT PATCO'S UNFAIR LABOR PRACTICE
CHARGE ALLEGING THAT FAA VIOLATED SECTION 7116(A)(1), (5) AND (8) OF THE
STATUTE BY REFUSING TO BARGAIN IN GOOD FAITH WAS DISMISSED BY THE
REGIONAL DIRECTOR ON AUGUST 25, 1981, WAS UNSUPPORTED, AND THAT PATCO'S
APPEAL FROM THE REGIONAL DIRECTOR'S REFUSAL TO ISSUE A COMPLAINT WITH
RESPECT TO PATCO'S CHARGE WAS DENIED BY THE GENERAL COUNSEL ON SEPTEMBER
21, 1981. FEDERAL AVIATION ADMINISTRATION, DEPARTMENT OF
TRANSPORTATION, CASE NO. 3-CA-2729.
/42/ SEE BENNETT V. GRAVELLE, 451 F.2D 1011 (4TH CIR. 1971).
/43/ THE RIGHT OF FEDERAL EMPLOYEES TO BARGAIN COLLECTIVELY IS
GRANTED BY THE STATUTE. IN NATIONAL TREASURY EMPLOYEES UNION V. REAGAN,
C.A. NO. 80-606 (D.D.C., SEPT 3, 1981), JUDGE BARRINGTON D. PARKER, IN
DISMISSING PLAINTIFFS' CLAIM THAT EXCLUSIONS OF AGENCIES (OR
SUBDIVISIONS THEREOF) FROM COVERAGE OF THE STATUTE AND EXECUTIVE ORDER
11491 VIOLATE CONSITUTIONAL RIGHTS OF ASSOCIATION, POINTED OUT THERE IS
NO CONSTITUTIONAL RIGHT TO ENGAGE IN COLLECTIVE BARGAINING:
WHILE THERE IS NO DOUBT THAT FEDERAL EMPLOYEES HAVE A FIRST AMENDMENT
RIGHT TO "ASSOCIATE
AND SPEAK FREELY AND PETITION OPENLY," THIS DOES NOT ENTITLE THEM TO
THE PANOPLY OF SPECIFIC
PROCEDURES, INCLUDING A RIGHT TO ORGANIZE AND PARTICIPATE IN
COLLECTIVE BARGAINING. SEE SMITH
V. ARKANSAS HIGHWAY EMPLOYEES LOCAL 1315, 441 U.S. 463, 465(1979).
/44/ AT ORAL ARGUMENT, IN RESPONSE TO A QUESTION BY THE AUTHORITY,
PATCO'S REPRESENTATIVE CONCEDED THAT THERE IS NO INDICATION IN THE
RECORD OF ANY EFFORT HAVING BEEN MADE TO UTILIZE THE PANEL AS A MEANS OF
RESOLVING THE BARGAINING IMPASSE. FURTHER, WHEN IT WAS POINTED OUT BY
THE AUTHORITY THAT THERE IS NO INDICATION IN THE PANEL'S RECORDS (OF
WHICH OFFICIAL NOTICE WAS TAKEN) OF ANY REQUEST HAVING BEEN MADE TO THE
PANEL FOR ITS ASSISTANCE, PATCO'S REPRESENTATIVE REPLIED: "SO BE IT."
(TRANSCRIPT OF ORAL ARGUMENT AT 48-50).
/45/ SINCE IT IS PATCO AND NOT FAA WHICH TOOK ACTIONS IN SPECIFIC
VIOLATION OF THE STATUTE, FAA CANNOT BE FOUND AT FAULT FOR NOT INVOKING
THE PROCESSES OF THE PANEL. FURTHER, TAKING OFFICIAL NOTICE OF THE
DISMISSAL LETTERS IN CASE NO. 3-CA-2729 (N. 41, SUPRA), IT IS
ESTABLISHED THAT FAA RESUMED NEGOTIATIONS WITH PATCO ON JULY 31 WITH THE
ASSISTANCE OF THE FEDERAL MEDIATION AND CONCILIATION SERVICE (FMCS)
AFTER THE PRESIDENT OF PATCO NOTIFIED FAA THAT THE PREVIOUSLY NEGOTIATED
AGREEMENT HAD BEEN REJECTED BY THE MEMBERSHIP VOTE. THESE NEGOTIATIONS
CONTINUED WITH THE ASSISTANCE OF FMCS ON SATURDAY, AUGUST 1 AND SUNDAY,
AUGUST 2 UNTIL 2:30 A.M. ON MONDAY, AUGUST 3 WHEN NEGOTIATIONS CEASED.
BEGINNING ON THE DAY-SHIFT (AT 6 A.M. OR 7 A.M.) ON MONDAY, AUGUST 3, A
STRIKE BEGAN AMONG AIR TRAFFIC CONTROL SPECIALISTS. IT WOULD BE
MANIFESTLY UNTENABLE TO ARGUE THAT FAA SOMEHOW CONTRIBUTED TO THE STRIKE
BY NOT HAVING SOUGHT TO INVOKE THE PROCESSES OF THE PANEL IN THE EARLY
MORNING HOURS (BETWEEN 2:30 A.M. AND 6 A.M.) OF AUGUST 3. FINALLY, IT
IS NOTED THAT SECTION 2471.1(A) OF THE PANEL'S RULES (5 C.F.R.
2471.1(A)) PROVIDES THAT THE PANEL MAY NOT ONLY UNDERTAKE CONSIDERATION
OF A NEGOTIATION IMPASSE AT THE REQUEST OF EITHER PARTY TO THE
NEGOTIATIONS BUT ALSO AT THE REQUEST OF THE FMCS OR THE EXECUTIVE
DIRECTOR OF THE PANEL. SO FAR AS OFFICIAL NOTICE OF THE OFFICIAL
RECORDS OF THE PANEL SHOWS, NEITHER MADE SUCH A REQUEST. HOWEVER, IT
CAN HARDLY BE ASSERTED THAT EITHER FMCS OR THE EXECUTIVE DIRECTOR OF THE
PANEL IS SOMEHOW AT FAULT BECAUSE PATCO ENGAGED IN A STRIKE AND THAT
SUCH FAILURE SHOULD BE REGARDED AS A MITIGATING FACTOR IN THE IMPOSITION
OF A REMEDY FOR THE WILLFUL AND INTENTIONAL VIOLATION OF SECTION
7116(B)(7) OF THE STATUTE.
/46/ THE REMARKS OF AFGE'S PRESIDENT, KENNETH BLAYLOCK, AT ORAL
ARGUMENT, (TRANSCRIPT AT 10-16), TO THE EFFECT THAT A PRIMARY OBJECTIVE
OF THE STATUTE IS TO PROMOTE COLLECTIVE BARGAINING AND MAKE THE PROCESS
WORK ARE WELL TAKEN. HOWEVER, IT MUST BE CONCLUDED THAT PATCO'S ACTIONS
WERE IN DEROGATION OF THE LEGAL FRAMEWORK ESTABLISHED TO ACHIEVE THAT
OBJECTIVE AND THEREFORE UNDERMINED RATHER THAN PROMOTED COLLECTIVE
BARGAINING. IN THIS REGARD, WHILE CONGRESS DECLARED AT THE VERY OUTSET
OF THE STATUTE IN SECTION 7101(A) THAT THE RIGHT OF EMPLOYEES TO
ORGANIZE AND BARGAIN COLLECTIVELY "SAFEGUARDS THE PUBLIC INTEREST," IT
FURTHER STATED THAT "THE PUBLIC INTEREST DEMANDS THE HIGHEST STANDARDS
OF EMPLOYEE PERFORMANCE . . . AND THE EFFICIENT ACCOMPLISHMENT OF THE
OPERATIONS OF THE GOVERNMENT." ACCORDINGLY, AS ALREADY MENTIONED, IN
SECTION 7101(B) OF THE STATUTE, CONGRESS REFERRED TO CERTAIN RIGHTS AND
OBLIGATIONS OF FEDERAL EMPLOYEES AND THE ESTABLISHMENT OF "PROCEDURES
WHICH ARE DESIGNED TO MEET THE SPECIAL REQUIREMENTS AND NEEDS OF THE
GOVERNMENT"; IT FURTHER SPECIFIED THAT THE PROVISIONS OF THE STATUTE
"SHOULD BE INTERPRETED IN A MANNER CONSISTENT WITH THE REQUIREMENT OF AN
EFFECTIVE AND EFFICIENT GOVERNMENT."
/47/ IT MAY BE TRUE THAT NO LOSS OF STATUS AS EXCLUSIVE BARGAINING
REPRESENTATIVE HAS BEEN IMPOSED UPON UNIONS REPRESENTING PRIVATE SECTOR
EMPLOYEES PURSUANT TO THE NATIONAL LABOR RELATIONS ACT WHICH HAVE
ENGAGED IN UNPROTECTED STRIKES OR BY UNIONS REPRESENTING PUBLIC SECTOR
EMPLOYEES WHICH HAVE ENGAGED IN STRIKES PROHIBITED BY STATE LAW.
HOWEVER, EVEN IF TRUE, SUCH FACT DOES NOT COMPEL A RESULT CONTRARY TO
THAT REACHED HEREIN UNDER THE PROVISIONS OF THE STATUTE. FURTHER, THE
FACT THAT FEDERAL COURTS HAVE ALREADY IMPOSED FINES UPON PATCO FOR ITS
WILLFUL DISOBEDIENCE OF LAWFULLY ISSUED INJUNCTIONS RESTRAINING PATCO
FROM ENGAGING IN THE VERY STRIKE WHICH HAS BEEN FOUND TO CONSTITUTE AN
UNFAIR LABOR PRACTICE HEREIN CLEARLY DOES NOT SUPPORT PATCO'S CLAIM THAT
ITS EXCLUSIVE RECOGNITION STATUS SHOULD NOT BE REVOKED.
/48/ CHAIRMAN HAUGHTON INDICATES HE WOULD REMAND THIS CASE TO THE
CHIEF ALJ FOR FURTHER DEVELOPMENT OF RECORD EVIDENCE BEARING UPON THE
APPROPRIATE REMEDY. THIS VIEW IS PREMISED ON THE ERRONEOUS CONCLUSION
THAT THE AUTHORITY HAS UNLIMITED DISCRETION UNDER THE STATUTE TO FASHION
ANY DISCIPLINARY ACTION IT DEEMS APPROPRIATE, TO INCLUDE A LESSER
PENALTY THAN REVOCATION IN THE CIRCUMSTANCES OF THIS CASE. AS
DEMONSTRATED IN PART III.B.2 CONCERNING THE DISCRETION OF THE AUTHORITY
AND ITS APPLICATION IN THIS CASE, THE LANGUAGE, LEGISLATIVE HISTORY AND
PURPOSE OF THE STATUTE ESTABLISH THAT CONGRESS INTENDED TO PERMIT THE
AUTHORITY TO FASHION DISCIPLINARY ACTION OTHER THAN REVOCATION OF
CERTIFICATION ONLY IN THOSE SITUATIONS WHERE THE UNION HAS TAKEN
POSITIVE STEPS TO PREVENT OR STOP SUCH STRIKE ACTIVITY. THE RECORD IN
THIS CASE AS IT STANDS IS CLEAR-- PATCO WILLFULLY AND INTENTIONALLY
CALLED AND PARTICIPATED IN AN UNLAWFUL STRIKE AND TOOK NO ACTION
WHATSOEVER TO END SUCH STRIKE. THUS, THE AUTHORITY HAS NO NEED OF
FURTHER EVIDENCE. THE AUTHORITY IS CONSTRAINED BY THE STATUTE TO ORDER
REVOCATION IN THESE CIRCUMSTANCES.
MOREOVER, CONCERNING THE CHAIRMAN'S PERCEIVED DEFICIENCIES IN THE
RECORD, IT MUST AGAIN BE EMPHASIZED THAT PATCO HAD AMPLE OPPORTUNITY TO
PREPARE ITS CASE. INSTEAD, IT PREPARED FOR A STRIKE. ADDITIONALLY,
CHAIRMAN HAUGHTON DOES NOT ADVERT TO ANY PERSUASIVE EVIDENCE WHICH PATCO
HAS SOUGHT TO ADDUCE TO SUPPORT ITS CONTENTION THAT REVOCATION IS
INAPPROPRIATE IN THE CIRCUMSTANCES OF THIS CASE. THERE IS OBVIOUSLY NO
NEED TO PERMIT PATCO TO REOPEN THE RECORD SIMPLY TO ENGAGE IN A "FISHING
EXPEDITION" WHICH WOULD ONLY ADD TO THE ALREADY UNCONSCIONABLE DELAY IN
THIS CASE.
/49/ OTHER EXCEPTIONS OF THE GENERAL COUNSEL AND FAA ARE TREATED AT
N. 39, SUPRA.
/50/ MEMBER APPLEWHAITE, IN HIS SEPARATE OPINION, HAS EXPRESSED
CONCERN FOR THE REPRESENTATION RIGHTS OF WORKING CONTROLLERS AND HAS
PROPOSED THE APPOINTMENT OF A COMMITTEE OF EXPERTS TO MAKE EX PARTE
RECOMMENDATIONS TO THE AUTHORITY REGARDING ANY LABOR RELATIONS
"PROBLEMS" WHICH MAY EXIST. NO STATUTORY OR REGULATORY AUTHORITY IS
CITED AND RESEARCH FAILS TO DISCLOSE ANY BASIS FOR THE APPOINTMENT OF
SUCH A COMMITTEE UNDER THE STATUTE. SECTION 7105(A)(1), ADVERTED TO BY
MEMBER APPLEWHAITE, DOES NOT GRANT LEGISLATIVE POWERS TO THE AUTHORITY
BUT RATHER EMPOWERS THE AUTHORITY TO PROVIDE LEADERSHIP WITHIN THE
FRAMEWORK OF THE STATUTE.
FURTHER, THE NEED FOR SUCH COMMITTEE HAS NOT BEEN, AND CANNOT BE,
DEMONSTRATED. IN THIS REGARD, IT IS PLAIN THAT IN ESTABLISHING
REVOCATION OF CERTIFICATION AS A REMEDY FOR THE WILLFUL, INTENTIONAL
VIOLATION OF THE STATUTE'S NO-STRIKE PROVISION, CONGRESS WAS FULLY AWARE
OF THE RESULTS WHICH WOULD FOLLOW FROM THE APPLICATION OF THIS PENALTY.
THE RIGHTS OF WORKING CONTROLLERS ARE ESTABLISHED AND ARE PROTECTED BY
THE STATUTE ITSELF. FOR EXAMPLE, CONGRESS, THROUGH SECTION 7111 OF THE
STATUTE, PROVIDED A READY MEANS BY WHICH WORKING CONTROLLERS MAY SEEK
CERTIFICATION OF AN EXCLUSIVE BARGAINING REPRESENTATIVE OF THEIR OWN
CHOOSING TO REPRESENT THEM IF THEY SO DESIRE. IT IS NOT THE PREROGATIVE
OF THE AUTHORITY TO ENGRAFT UPON THE STATUT'S PROVISIONS SOME
ADDITIONAL, CONTRIVED REQUIREMENTS.
UNDER THE STATUTE WE HAVE A REMEDY FOR THE VIOLATION AND A MEANS FOR
THE WORKING CONTROLLERS TO SELECT A BARGAINING REPRESENTATIVE. CLEARLY
THE AUTHORITY MAY NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF CONGRESS.
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OPINION OF LEON B. APPLEWHAITE, MEMBER:
THE FIRST 16 PAGES OF THE OPINION SIGNED BY MEMBER FRAZIER, EXCEPT
FOR THE PORTION ENTITLED "HISTORICAL PERSPECTIVE", ALSO REPRESENT MY
THINKING. I CONCUR THAT PATCO'S EXCLUSIVE RECOGNITION STATUS SHOULD BE
REVOKED UNDER THE CIRCUMSTANCES OF THIS CASE AS DETERMINED BY THE CHIEF
ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER. HOWEVER I
FEEL COMPELLED TO DISASSOCIATE MYSELF FROM SOME OF MEMBER FRAZIER'S
LANGUAGE AND REASONING. I ALSO FEEL IT NECESSARY TO ARTICULATE AN
ADDITIONAL CONCERN.
SECTION I. OF THE OPINION SIGNED BY MEMBER FRAZIER, ENTITLED
"HISTORICAL PERSPECTIVE", IS, IN MY OPINION, FOR THE MOST PART NOT
RELEVANT TO THE ISSUES BEFORE THE AUTHORITY. OUR TASK IS SIMPLY TO
INTERPRET RELEVANT PROVISIONS OF THE STATUTE, WHICH BECAME EFFECTIVE IN
ITS ENTIRETY JANUARY 11, 1979, AND TO EXPRESS APPROPRIATE CONCERNS
RELEVANT TO THE FACTS AS WE HAVE PRESENTED THEM. IT IS NOT OUR TASK TO
JUSTIFY THE EXISTENCE OF THE PROVISION OF THE STATUTE WHICH MAKES STRIKE
ACTION AN UNFAIR LABOR PRACTICE; IN OTHER WORDS, IT IS NOT FOR US TO
EDITORIALIZE. THE STATUTE IS CLEAR ON ITS FACE THAT A STRIKE IN THE
FEDERAL SECTOR CONSTITUTES AN UNFAIR LABOR PRACTICE AND THE FACTS OF THE
INSTANT CASE CLEARLY ESTABLISH THAT PATCO CALLED, PARTICIPATED IN, AND
CONDONED A STRIKE.
I ALSO DISAGREE WITH A PORTION OF MEMBER FRAZIER'S REASONING, NAMELY
HIS VIEW THAT THE AUTHORITY MUST, AS A MATTER OF LAW, REVOKE PATCO'S
EXCLUSIVE RECOGNITION STATUS AND THAT WE COULD NOT, EVEN IF WE CHOSE TO
DO SO EXERCISE DISCRETION TO ORDER ANY LESSER PENALTY UNDER THE
CIRCUMSTANCES OF THIS CASE. RATHER, I FEEL THAT THE LANGUAGE OF SECTION
7120(F) EXPLICITLY VESTS THE AUTHORITY WITH THE POWER TO EXERCISE
APPROPRIATE REMEDIAL DISCRETION, /1/ AND I CONCUR WITH CHAIRMAN
HAUGHTON'S INTERPRETATION OF THE RELEVANT LEGISLATIVE HISTORY. HOWEVER,
UNLIKE CHAIRMAN HAUGHTON, I AM FIRMLY CONVINCED THAT THE ONLY
APPROPRIATE WAY TO EXERCISE OUR DISCRETION IN THIS CASE IS TO ORDER THAT
PATCO'S EXCLUSIVE RECOGNITION STATUS BE REVOKED. /2/
FINALLY, I FEEL COMPELLED TO EXPRESS MY CONCERN THAT THE ABILITY OF
CURRENT EMPLOYEES OF FAA TO EXERCISE THEIR STATUTORY AND ANY CONTRACTUAL
RIGHTS NOT BE NEGATED AS A RESULT OF THE UNFORTUNATE AND UNPRECEDENTED
SITUATION PRESENTED BY THIS CASE. I AM ALSO MINDFUL OF THE STATUTORY
MANDATE SET FORTH IN SECTION 7105(A)(1) THAT "(T)HE AUTHORITY SHALL
PROVIDE LEADERSHIP IN ESTABLISHING POLICIES AND GUIDANCE RELATING TO
MATTERS UNDER THIS CHAPTER, AND, EXCEPT AS OTHERWISE PROVIDED, SHALL BE
RESPONSIBLE FOR CARRYING OUT THE PURPOSE OF THIS CHAPTER." ACCORDINGLY,
AND IN ORDER TO PROVIDE A PRAGMATIC MEANS OF IDENTIFYING AND ATTEMPTING
TO DEAL WITH LABOR RELATIONS PROBLEMS ARISING FROM THE AFTERMATH OF THE
STRIKE WHICH COULD NOT BE RESOLVED WITHIN THE FOUR CORNERS OF OUR
DECISION AND ORDER HEREIN, I WOULD HAVE PREFERRED THAT THE AUTHORITY
ALSO APPOINT AN IMPARTIAL COMMITTEE OF LABOR RELATIONS EXPERTS TO MAKE
EXPEDITIOUS RECOMMENDATIONS TO US REGARDING ANY SUCH PROBLEMS WHICH MAY
EXIST. THIS COMMITTEE WOULD REMAIN ACTIVE FOR A PERIOD NOT IN EXCESS OF
ONE YEAR FROM THE DATE OF THIS DECISION AND ORDER, OR UNTIL A LABOR
ORGANIZATION HAS BEEN RECOGNIZED AS THE EXCLUSIVE REPRESENTATIVE OF AIR
TRAFFIC CONTROLLERS.
DATED, WASHINGTON, D.C., OCTOBER 22, 1981.
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
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FOOTNOTES
/1/ I NOTE THAT THE CLEAR LANGUAGE OF THE STATUTE ITSELF IS THE BEST
INDICATION OF CONGRESS' INTENT. SEE, E.G., UNITED STATES V. OREGON, 366
U.S. 643(1961); AVIATION CONSUMER ACTION PROJECT V. WASHBURN, 535 F.2D
101 (D.C. CIR. 1976).
/2/ I ALSO CONCLUDE, AS DO MY COLLEAGUES, THAT PATCO IS NOT AT THIS
TIME A "LABOR ORGANIZATION" WITHIN THE MEANING OF SECTION 7103(A)(4) OF
THE STATUTE, AND THAT IT IS NOW PREMATURE TO ATTEMPT TO DETERMINE
WHETHER THIS SITUATION MIGHT CHANGE IN THE FUTURE.
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OPINION OF RONALD W. HAUGHTON, CHAIRMAN:
I CONCUR WITH MY COLLEAGUES IN FINDING THAT THE RECORD DEMONSTRATES
THAT PATCO WILLFULLY AND INTENTIONALLY VIOLATED SECTION 7116(B)(7) OF
THE STATUTE. /1/ HOWEVER AS DISCUSSED BELOW AND LIKE MEMBER
APPLEWHAITE, I BELIEVE THAT SECTION 7120(F) PROVIDES THE AUTHORITY WITH
GREATER DISCRETION THAN THE "EXTREMELY LIMITED" DISCRETION FOUND BY
MEMBER FRAZIER TO REMEDY SUCH VIOLATIONS OF SECTION 7116(B)(7). I
FURTHER BELIEVE THAT THE RECORD IS INCOMPLETE INSOFAR AS EVIDENCE
BEARING ON THE REMEDY IS CONCERNED, AND THEREFORE I AM UNABLE AT THIS
TIME TO DETERMINE WHAT REMEDY IS WARRANTED IN THIS CASE.
SECTION 7120(F) PROVIDES THAT WHERE THE AUTHORITY FINDS THAT A LABOR
ORGANIZATION HAS WILLFULLY AND INTENTIONALLY VIOLATED SECTION
7116(B)(7), THE AUTHORITY SHALL "(1) REVOKE THE EXCLUSIVE RECOGNITION
STATUS OF THE LABOR ORGANIZATION . . . OR (2) TAKE ANY OTHER APPROPRIATE
DISCIPLINARY ACTION." THIS STATUTORY LANGUAGE EXPRESSES THE INTENT OF
CONGRESS THAT ANY LABOR ORGANIZATION FOUND BY THE AUTHORITY TO HAVE
WILLFULLY AND INTENTIONALLY CALLED, PARTICIPATED IN, OR CONDONED A
STRIKE, WORK STOPPAGE OR SLOWDOWN, MUST BE DISCIPLINED, AND IT IS THE
RESPONSIBILITY OF THE AUTHORITY TO DETERMINE WHAT FORM OF DISCIPLINARY
ACTION IS APPROPRIATE. /2/ THE AUTHORITY'S ROLE IN DETERMINING WHETHER
REVOCATION OF EXCLUSIVE RECOGNITION STATUS OR OTHER ACTION IS WARRANTED
IN A PARTICULAR CASE IS FURTHER DEFINED IN THE CONFERENCE REPORT, AS
DISCUSSED BELOW.
THE APPLICABLE LEGISLATIVE HISTORY OF SECTION 7120(F) IS SET FORTH IN
MEMBER FRAZIER'S OPINION AT PART III. B.2., SUPRA, AND WILL NOT BE
REPEATED IN DETAIL HERE. MY REVIEW OF SUCH HISTORY, WITH WHICH MEMBER
APPLEWHAITE CONCURS, DEMONSTRATES THAT CONGRESS RECOGNIZED THAT
REVOCATION IS A SEVERE PENALTY, AND INTENDED THE AUTHORITY TO REVOKE A
LABOR ORGANIZATION'S EXCLUSIVE RECOGNITION STATUS EXCEPT IN INSTANCES,
TO BE DETERMINED BY THE AUTHORITY, IN WHICH THE AUTHORITY FINDS THAT
REVOCATION IS INAPPROPRIATE. OF PARTICULAR SIGNIFICANCE IN THIS REGARD
IS THE FOLLOWING LANGUAGE OF THE CONFERENCE REPORT:
SENATE SECTION 7217(E) PROVIDES THAT ANY LABOR ORGANIZATION WHICH
"WILLFULLY AND
INTENTIONALLY" CONDONES ANY STRIKE, WORK STOPPAGE, SLOWDOWN, OR ANY
PICKETING OF AN AGENCY
THAT INTERFERES WITH AN AGENCY'S OPERATIONS SHALL, UPON AN
APPROPRIATE FINDING BY THE
AUTHORITY, HAVE ITS EXCLUSIVE RECOGNITION STATUS REVOKED. THERE IS
NO COMPARABLE HOUSE
PROVISION.
THE CONFERENCE REPORT ADOPTS THE SENATE WORDING WITH AN AMENDMENT.
AS AGREED TO BY THE
CONFEREES THE PROVISION WILL NOT APPLY TO INSTANCES WHERE THE
ORGANIZATION WAS INVOLVED IN
PICKETING ACTIVITIES. THE AMENDMENT ALSO SPECIFIES THAT THE
AUTHORITY MAY IMPOSE DISCIPLINARY
ACTION OTHER THAN DECERTIFICATION. THIS IS TO ALLOW FOR INSTANCES,
SUCH AS A WILDCAT STRIKE,
WHERE DECERTIFICATION WOULD NOT BE APPROPRIATE. IN CASES WHERE THE
AUTHORITY FINDS THAT A
PERSON HAS VIOLATED THIS PROVISION, DISCIPLINARY ACTION OF SOME KIND
MUST BE TAKEN. THE
(A)UTHORITY MAY TAKE INTO ACCOUNT THE EXTENT TO WHICH THE
ORGANIZATION MADE EFFORTS TO PREVENT
OR STOP THE ILLEGAL ACTIVITY IN DECIDING WHETHER THE ORGANIZATION
SHOULD BE DECERTIFIED.
H. R. REP. NO. 95-1717, 95TH CONG.,2D SESS. 156(1978).
THUS, IN CONTRAST TO THE BILL PASSED BY THE SENATE, WHICH MANDATED
REVOCATION OF A LABOR ORGANIZATION'S EXCLUSIVE RECOGNITION STATUS IN THE
CIRCUMSTANCES STATED IN THE BILL, THE AMENDMENT ADOPTED BY THE CONFEREES
"SPECIFIES THAT THE AUTHORITY MAY IMPOSE DISCIPLINARY ACTION OTHER THAN
DECERTIFICATION . . . TO ALLOW FOR INSTANCES, SUCH AS A WILDCAT STRIKE,
WHERE DECERTIFICATION WOULD NOT BE APPROPRIATE." CLEARLY, BY USING THE
WORK "INSTANCES" AND CITING A WILDCAT STRIKE AS ONE EXAMPLE OF SUCH AN
INSTANCE, THE CONFEREES DID NOT INTEND THAT EXAMPLE TO BE THE ONLY
INSTANCE IN WHICH DECERTIFICATION WOULD BE INAPPROPRIATE. SIMILARLY, BY
STATING IN ITS REPORT THAT THE AUTHORITY "MAY TAKE INTO ACCOUNT THE
EXTENT TO WHICH THE ORGANIZATION MADE EFFORTS TO PREVENT OR STOP THE
ILLEGAL ACTIVITY IN DECIDING WHETHER THE ORGANIZATION SHOULD BE
DECERTIFIED(,)" THE CONFERENCE COMMITTEE GAVE NO INDICATION THAT THIS IS
TO BE THE ONLY FACTOR WHICH THE AUTHORITY CAN CONSIDER IN DECIDING
WHETHER DECERTIFICATION IS INAPPROPRIATE. RATHER, I CONCLUDE THAT THE
CONFERENCE REPORT PROVIDES AN EXAMPLE OF, NOT A LIMITATION ON, WHAT THE
AUTHORITY CAN CONSIDER IN DETERMINING WHEN DECERTIFICATION WOULD NOT BE
APPROPRIATE. THUS I CANNOT AGREE WITH MEMBER FRAZIER'S CONCLUSION THAT
THE ONLY SITUATION IN WHICH A REMEDY OTHER THAN REVOCATION WOULD BE
WARRANTED IS WHERE "THE UNION MADE EFFORTS TO PREVENT OR STOP THE
ILLEGAL ACTIVITY."
MY CONCLUSION DOES NOT IN ANY MANNER TAKE AWAY "TEETH /3/ FROM THE
LAW PROHIBITING UNIONS FROM STRIKING. REVOCATION OF A UNION'S EXCLUSIVE
RECOGNITION STATUS IS THE APPROPRIATE DISCIPLINARY ACTION FOR A WILLFUL
AND INTENTIONAL VIOLATION OF SECTION 7116(B)(7), UNLESS THE
CIRCUMSTANCES WARRANT OTHER ACTION. AS THE CONFERENCE REPORT STATES,
THE AMENDMENT "IS TO ALLOW FOR INSTANCES . . . WHERE DECERTIFICATION
WOULD NOT BE APPROPRIATE." CONGRESS LEFT IT UP TO THE AUTHORITY TO
DETERMINE WHAT THESE INSTANCES MIGHT BE.
THIS CONCLUSION ALSO IS CONSISTENT WITH SECTION 7118(A)(7) OF THE
STATUTE, WHICH EMPOWERS THE AUTHORITY, UPON FINDING THAT AN UNFAIR LABOR
PRACTICE HAS BEEN COMMITTED, TO ORDER CERTAIN ENUMERATED ACTIONS "OR
SUCH OTHER ACTION AS WILL CARRY OUT THE PURPOSE OF THE CHAPTER." THE
AUTHORITY'S DISCRETION UNDER SECTION SECTION 7120(F), WHICH IS LIMITED
INSOFAR AS THE AUTHORITY MAY TAKE OTHER DISCIPLINARY ACTION ONLY IN
INSTANCES (TO BE DETERMINED BY THE AUTHORITY) WHERE REVOCATION IS
INAPPROPRIATE, IS CONSISTENT WITH THE AUTHORITY'S PRACTICE OF ORDERING
UNFAIR LABOR PRACTICE REMEDIES PURSUANT TO SECTION 7118 WHICH ARE
APPROPRIATE FOR THE PARTICULAR FACTS AND CIRCUMSTANCES OF A GIVEN CASE.
/4/
ACCORDINGLY, THE CONFERENCE REPORT AND THE ADDITIONAL LEGISLATIVE
HISTORY DEMONSTRATE, CONSISTENT WITH THE LANGUAGE OF THE STATUTE, THAT
CONGRESS INTENDED THE AUTHORITY TO ASSURE THAT APPROPRIATE DISCIPLINARY
ACTION (I.E., REVOCATION OR, WHERE REVOCATION IS INAPPROPRIATE, OTHER
DISCIPLINARY ACTION) IS TAKEN AGAINST ANY LABOR ORGANIZATION WHICH THE
AUTHORITY FINDS TO HAVE WILLFULLY AND INTENTIONALLY, WITH REGARD TO ANY
STRIKE, WORK STOPPAGE, OR SLOWDOWN, VIOLATED SECTION 7116(B)(7) OF THE
STATUTE.
IN ORDER FOR THE AUTHORITY TO EXERCISE PROPERLY ITS DEGREE OF
DISCRETION, THE RECORD SHOULD BE AS COMPLETE AS POSSIBLE TO ENABLE IT TO
DETERMINE WHETHER THE CIRCUMSTANCES OF THIS CASE WARRANT ANY
DISCIPLINARY ACTION OTHER THAN REVOCATION. AT THE HEARING BEFORE THE
CHIEF ALJ, PATCO REQUESTED A CONTINUANCE OF THE HEARING TO GATHER
EVIDENCE OF MITIGATING CIRCUMSTANCES WITH RESPECT TO THE ISSUE OF A
POSSIBLE REMEDY. THE CHIEF ALJ DENIED PATCO'S REQUEST, AND ALSO RULED
THAT ARGUMENT IN THIS RESPECT COULD BE PRESENTED IN PATCO'S POST-HEARING
BRIEF. THIS RULING WAS ERRONEOUS BECAUSE IT DEPRIVED THE AUTHORITY OF
THE ABILITY TO HAVE ALL RELEVANT EVIDENCE BEFORE IT IN EXERCISING ITS
LIMITED DISCRETION AS TO THE REMEDY.
I DO NOT KNOW WHAT ADDITIONAL EVIDENCE, IF ANY, PATCO WOULD PRODUCE
TO SUPPORT ITS CONTENTION THAT REVOCATION OF ITS EXCLUSIVE RECOGNITION
STATUS IS NOT APPROPRIATE IN THE CIRCUMSTANCES OF THIS CASE. BUT IT IS
PRECISELY BECAUSE OF THIS UNCERTAINTY THAT THE LACKS COMPLETENESS. IN
THE CIRCUMSTANCES, CONSIDERING PARTICULARLY THE ACKNOWLEDGED SEVERITY OF
REVOCATION, /5/ THE AUTHORITY SHOULD ALLOW PATCO A FULL OPPORTUNITY TO
PRESENT EVIDENCE AS TO WHY REVOCATION IS INAPPROPRIATE.
DESPITE MY CONCERN THAT ALL RELEVANT EVIDENCE GOING TO THE REMEDY IS
NOT BEFORE US AT THIS TIME, ONE OVERRIDING FACT IS CLEAR PATCO HAS NOT
MADE ANY ATTEMPT TO END THE STRIKE. UNLESS IT ENDS THE STRIKE
FORTHWITH, AND IMMEDIATELY REPRESENTS TO THE AUTHORITY THAT IT INTENDS
TO ABIDE BY THE NO-STRIKE PROVISIONS OF THE STATUTE, I WOULD VIEW ANY
ADDITIONAL EVIDENCE AS HAVING NO MITIGATING EFFECT ON THE PENALTY TO BE
IMPOSED. IF PATCO DOES NOT TAKE THESE ACTIONS WITHIN 5 DAYS OF RECEIPT
OF THIS DECISION, I WILL THEN CONCUR WITH MEMBERS FRAZIER AND
APPLEWHAITE THAT PATCO'S EXCLUSIVE RECOGNITION STATUS BE REVOKED. A
FAILURE BY PATCO TO END THE STRIKE AND TO REPRESENT TO THE AUTHORITY
THAT IT INTENDS TO ABIDE BY THE NO-STRIKE PROVISIONS OF THE STATUTE
WITHIN THE TIME JUST INDICATED WOULD MEAN TO ME THAT PATCO DOES NOT
DESIRE TO MEET THE LETTER AND INTENT OF THE LAW AND THUS WOULD FORFEIT
ANY CONSIDERATION OF ITS BASIC CONTENTION THAT REVOCATION IS NOT
APPROPRIATE. FINALLY, I CONCUR IN THAT FINDING OF MY COLLEAGUES AND IN
THAT PART OF THE ORDER DIRECTING THAT PATCO IS NOT A LABOR ORGANIZATION
AT THIS TIME UNDER SECTION 7103(A)(4)(D). /6/ PATCO CANNOT UNDER THE
STATUTE ENJOY THIS PRIVILEGE AS LONG AS IT "PARTICIPATES IN THE CONDUCT
OF A STRIKE AGAINST THE GOVERNMENT OR ANY AGENCY THEREOF OR IMPOSES A
DUTY OR OBLIGATION TO CONDUCT, ASSIST, OR PARTICIPATE IN SUCH A STRIKE."
IF, WITHIN 5 DAYS OF RECEIPT OF THIS DECISION, PATCO DOES END THE STRIKE
AND REPRESENT TO THE AUTHORITY THAT IT INTENDS TO ABIDE BY THE NO-STRIKE
PROVISIONS OF THE STATUTE, I WOULD REMAND THE MATTER OF A REMEDY TO THE
CHIEF ALJ FOR THE TAKING OF FURTHER EVIDENCE AND THE MAKING OF A
RECOMMENDED DECISION ON THE REMEDY AFTER CONSIDERING SUCH EVIDENCE.
IN CLOSING, I EMPHASIZE THAT THE STATUTE IS CLEAR THAT STRIKES BY
UNIONS IN THE FEDERAL SECTOR ARE ILLEGAL. I SIMPLY WANT TO MAKE SURE
THAT, IN CONSIDERING THIS CASE OF FIRST IMPRESSION UNDER THE STATUTE,
THERE IS NOT SUCH A "RUSH TO JUSTICE" THAT WE LOSE SIGHT OF THE NEED TO
OBTAIN ALL POSSIBLE RELEVANT INFORMATION BEFORE MAKING A FINAL DECISION
ON A DISCIPLINARY ACTION AS SEVERE AS REVOCATION.
DATED, WASHINGTON, D.C., OCTOBER 22, 1981.
RONALD W. HAUGHTON, CHAIRMAN
FEDERAL LABOR RELATIONS AUTHORITY
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FOOTNOTES
/1/ THIS CASE INVOLVES ONLY AN UNFAIR LABOR PRACTICE CHARGE FILED BY
AN AGENCY AGAINST A LABOR ORGANIZATION, AND DOES NOT INVOLVE THE MERITS
OF ANY APPEALS OF TERMINATIONS OF INDIVIDUAL EMPLOYEES IN THE BARGAINING
UNIT.
/2/ I CONCUR WITH THE STATEMENT IN N. 1 OF MEMBER APPLEWHAITE'S
OPINION THAT THE CLEAR LANGUAGE OF THE STATUTE IS THE BEST INDICATION OF
CONGRESS' INTENT IN THIS REGARD.
/3/ SEE P. 22 OF MEMBER FRAZIER'S OPINION, SUPRA.
/4/ IN THIS REGARD, IT IS NOTED THAT THE ORDER IN THE INSTANT CASE
IS ISSUED PURSUANT TO BOTH SECTIONS 7118 AND 7120(F) OF THE STATUTE.
/5/ SEE, E.G., THE DISCUSSION ON THE SENATE FLOOR BETWEEN SENATORS
JAVITS AND HATCH IN WHICH THEY AGREED THAT "DECERTIFICATION OF A LABOR
ORGANIZATION . . . IS A VERY LETHAL REMEDY(.)" 124 CONG.REC. S14315
(DAILY ED. AUG. 24, 1978).
/6/ ADDITIONALLY, I SPECIFICALLY CONCUR WITH MEMBER FRAZIER'S
CONCLUSION AT N. 39 OF HIS OPINION, JOINED IN BY MEMBER APPLEWHAITE,
THAT "(I)T IS WHOLLY UNNECESSARY TO ADDRESS THE QUESTION OF WHETHER, AT
SOME UNSPECIFIED TIME IN THE FUTURE, PATCO OR SOME SUCCESSOR
ORGANIZATION MAY MEET THE DEFINITION OF A LABOR ORGANIZATION AND THEREBY
ACQUIRE THE RIGHTS AND OBLIGATIONS OF A LABOR ORGANIZATION UNDER THE
STATUTE."
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ORDER
PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND SECTIONS 7118 AND 7120(F) OF THE STATUTE, IT IS
HEREBY ORDERED THAT THE EXCLUSIVE RECOGNITION STATUS OF THE PROFESSIONAL
AIR TRAFFIC CONTROLLERS ORGANIZATION (PATCO), AFFILIATED WITH MEBA,
AFL-CIO, BE, AND IT HEREBY IS, REVOKED. AS OF THIS DATE, PATCO IS NOT A
LABOR ORGANIZATION UNDER SECTION 7103(A)(4) OF THE STATURE. /*/
THE FEDERAL LABOR RELATIONS AUTHORITY WILL MAKE AVAILABLE TO THE
FEDERAL AVIATION ADMINISTRATION COPIES OF THE ATTACHED NOTICE FOR
POSTING AND DISSEMINATION TO AFFECTED PRESENT AND FORMER EMPLOYEES.
ISSUED, WASHINGTON, D.C. OCTOBER 22, 1981.
RONALD W. HAUGHTON, CHAIRMAN /**7/
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
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FOOTNOTES
/*/ ON SEPTEMBER 1, 1981, PATCO FILED WITH THE AUTHORITY, ALONG WITH
ITS EXCEPTIONS TO THE CHIEF ALJ'S RECOMMENDED DECISION AND ORDER, A
MOTION FOR STAY IN WHICH IT ASKED THE AUTHORITY TO DELAY FOR 10 DAYS THE
EFFECTIVENESS OF ANY ORDER IN THIS CASE REVOKING PATCO'S EXCLUSIVE
RECOGNITION STATUS SO THAT PATCO COULD APPEAL AND SEEK A STAY OF SUCH
ORDER FROM THE UNITED STATES COURT OF APPEALS. THE GENERAL COUNSEL AND
FAA HAVE OPPOSED PATCO'S MOTION FOR SUCH A STAY. THE AUTHORITY NOTES
THAT THE MOTION WAS FILED WELL BEFORE A FINAL DECISION AND ORDER WAS
ISSUED IN THIS CASE AND WAS THEREFORE PREMATURE. SEE ROCHESTER GAS AND
ELECTRIC CORP., 8 NRC 551(1978), REPORTED IN 45 PIKE AND FISCHER,
ADMINISTRATIVE LAW (2D) 476, AT 480; SEE ALSO AVON DAIRY CO. V.
EISAMAN, 69 F.SUPP. 500, 502 (N.D. OHIO 1946). SINCE THE MOTION FOR A
STAY DOES NOT ADDRESS THE GROUNDS RELIED UPON BY THE AUTHORITY FOR THE
PRESENT DECISION, PATCO'S MOTION IS DENIED AT THIS TIME.
/**/ AS STATED IN HIS OPINION, CHAIRMAN HAUGHTON CONCURS IN THE ORDER
TO REVOKE PATCO'S EXCLUSIVE RECOGNITION STATUS IF, WITHIN 5 DAYS, PATCO
HAS NOT ENDED THE STRIKE AND REPRESENTED TO THE AUTHORITY THAT IT
INTENDS TO ABIDE BY THE NO-STRIKE PROVISIONS OF THE STATUTE.
NOTICE TO AFFECTED EMPLOYEES AND FORMER EMPLOYEES
OF THE FEDERAL AVIATION ADMINISTRATION
PURSUANT TO
A DECISION AND ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
AND IN ORDER TO EFFECTUATE THE POLICIES OF
CHAPTER 71 OF TITLE 5 OF THE
UNITED STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
YOU ARE HEREBY NOTIFIED THAT:
THE EXCLUSIVE RECOGNITION STATUS OF THE PROFESSIONAL AIR TRAFFIC
CONTROLLERS ORGANIZATION (PATCO, AFFILIATED WITH MEBA, AFL-CIO, HAS BEEN
REVOKED BY THE FEDERAL LABOR RELATIONS AUTHORITY AS A CONSEQUENCE OF
PATCO'S WILLFUL AND INTENTIONAL VIOLATION OF SECTION 7116(B)(7) OF THE
FEDERAL SERVICE LABOR MANAGEMENT RELATIONS STATUTE BY CALLING FOR AND
PARTICIPATING IN A STRIKE AGAINST THE FEDERAL AVIATION ADMINISTRATION,
AN AGENCY OF THE UNITED STATES GOVERNMENT, AND BY CONDONING SUCH
ACTIVITY. THEREFORE, PURSUANT TO SECTION 7118 AND SECTION 7120(F) OF
THE STATUTE, PATCO IS NO LONGER THE EXCLUSIVE BARGAINING REPRESENTATIVE
OF THE NATIONAL UNIT OF AIR TRAFFIC CONTROL SPECIALISTS EMPLOYED BY THE
FEDERAL AVIATION ADMINISTRATION. FURTHER, AS OF THIS DATE, PATCO IS NOT
A LABOR ORGANIZATION UNDER SECTION 7103(A)(4) OF THE STATUTE.
DATED, WASHINGTON, D.C., OCTOBER 22, 1981
RONALD W. HAUGHTON, CHAIRMAN /*/
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
THIS NOTICE SHOULD REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE
DATE OF POSTING AND SHOULD NOT BE ALTERED, DEFACED, OR COVERED BY ANY
OTHER MATERIAL.
IF THERE ARE ANY QUESTIONS CONCERNING THIS NOTICE, THEY MAY BE
COMMUNICATED DIRECTLY TO THE REGIONAL DIRECTOR FOR THE FEDERAL LABOR
RELATIONS AUTHORITY, WHOSE ADDRESS IS: 1133 15TH STREET, NW., ROOM 300,
WASHINGTON, D.C. 20005, AND WHOSE TELEPHONE NUMBER IS: (202) 653-8452.
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FOOTNOTES
/*/ AS STATED IN HIS OPINION, CHAIRMAN HAUGHTON HAS CONCURRED IN THE
ORDER TO REVOKE PATCO'S EXCLUSIVE RECOGNITION STATUS IF, WITHIN 5 DAYS
OF THIS DATE, PATCO HAS NOT ENDED THE STRIKE AND REPRESENTED TO THE
AUTHORITY THAT IT INTENDS TO ABIDE BY THE NO-STRIKE PROVISIONS OF THE
STATUTE.
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SUPPLEMENT TO DECISION AND ORDER
SUPPLEMENTAL OPINION OF RONALD W. HAUGHTON, CHAIRMAN:
ON OCTOBER 22, 1981, IN THE ABOVE-CAPTIONED MATTER, MEMBERS FRAZIER
AND APPLEWHAITE, WITH THE UNDERSIGNED CONDITIONALLY DISSENTING, ORDERED
PATCO'S EXCLUSIVE RECOGNITION STATUS REVOKED PURSUANT TO SECTION 7120(F)
RECORD TO BE INCOMPLETE INSOFAR AS EVIDENCE BEARING ON THE REMEDY WAS
CONCERNED, AND THAT I THEREFORE WAS UNABLE, AT THE TIME, TO DETERMINE
WHAT REMEDY WAS WARRANTED. I SUGGESTED THAT THE CASE BE REMANDED TO
ALLOW PATCO A FULL OPPORTUNITY TO PRESENT EVIDENCE AS TO WHY REVOCATION
WAS INAPPROPRIATE. HOWEVER, I ALSO FOUND THAT:
UNLESS IT (PATCO) ENDS THE STRIKE FORTHWITH, AND IMMEDIATELY
REPRESENTS TO THE AUTHORITY
THAT IT INTENDS TO ABIDE BY THE NO-STRIKE PROVISIONS OF THE STATUTE,
I WOULD VIEW ANY
ADDITIONAL EVIDENCE AS HAVING NO MITIGATING EFFECT ON THE PENALTY TO
BE IMPOSED. IF PATCO
DOES NOT TAKE THESE ACTIONS WITHIN 5 DAYS OF RECEIPT OF THIS
DECISION, I WILL THEN CONCUR WITH
MEMBERS FRAZIER AND APPLEWHAITE THAT PATCO'S EXCLUSIVE RECOGNITION
STATUS BE REVOKED. A
FAILURE BY PATCO TO END THE STRIKE AND TO REPRESENT TO THE AUTHORITY
THAT IT INTENDS TO ABIDE
BY THE NO-STRIKE PROVISIONS OF THE STATUTE WITHIN THE TIME JUST
INDICATED WOULD MEAN TO ME
THAT PATCO DOES NOT DESIRE TO MEET THE LETTER AND INTENT OF THE LAW
AND THUS WOULD FORFEIT ANY
CONSIDERATION OF ITS BASIC CONTENTION THAT REVOCATION IS NOT
APPROPRIATE . . . . .
CONTRARY TO PATCO'S EXPRESSED UNDERSTANDING OF THE MEANING OF MY
DECISION, AS STATED IN PATCO'S "COMPLIANCE NOTICE" OF OCTOBER 28, MY
DECISION DID NOT REQUIRE PATCO TO ORDER ITS MEMBERS TO RETURN TO WORK.
/*/ IT SIMPLY REQUIRED A PROMPT ACTION TO END THE STRIKE AND AN
IMMEDIATE REPRESENTATION TO THE AUTHORITY THAT PATCO INTENDED TO ABIDE
BY THE NO-STRIKE PROVISIONS OF THE STATUTE. I MADE IT CLEAR THAT A
FAILURE TO COMPLY WITH BOTH OF THESE CONDITIONS WITHIN 5 DAYS OF RECEIPT
OF THE DECISION WOULD RESULT IN A CONCURRENCE BY ME WITH MEMBERS FRAZIER
AND APPLEWHAITE THAT PATCO'S EXCLUSIVE RECOGNITION STATUS BE REVOKED.
ASSUMING, ARGUENDO, THAT FLRA'S REGULATIONS EXCLUDED SATURDAY AND
SUNDAY, OCTOBER 24 AND 25, FROM THE 5-DAY PERIOD, AS CONTENDED BY PATCO,
PATCO STILL HAS NOT COMPLIED EVEN WITH THE FIRST CONDITION OF MY
DECISION-- NAMELY, THAT THE STRIKE BE ENDED. THE THIRD SENTENCE OF
PATCO'S NOTICE, SET FORTH IN THE FOOTNOTE SUPRA, ITSELF DEMONSTRATES A
KNOWLEDGE THAT THIS WAS REQUIRED. THERE WAS NO PROVISION IN MY DECISION
FOR THE KIND OF CONDITIONAL TERMINATION DESCRIBED IN PATCO'S NOTICE.
IN ALL THE CIRCUMSTANCES I FIND THAT I MUST NOW RECORD MYSELF AS
CONCURRING WITH MEMBERS FRAZIER AND APPLEWHAITE IN ORDERING THAT PATCO'S
EXCLUSIVE RECOGNITION STATUS BE REVOKED PURSUANT TO THE STATUTE.
DATED, WASHINGTON, D.C., NOVEMBER 3, 1981.
RONALD W. HAUGHTON, CHAIRMAN
FEDERAL LABOR RELATIONS AUTHORITY
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FOOTNOTES
/*/ ON WEDNESDAY, OCTOBER 28, 1981, PATCO FILED WITH THE AUTHORITY A
DOCUMENT CAPTIONED "PATCO COMPLIANCE NOTICE." THIS DOCUMENT STATED IN
PERTINENT PART THAT "(T)HE EXECUTIVE BOARD OF PATCO, HAVING CONSIDERED
THE CHAIRMAN'S CONDITION(S), DECIDED ON OCTOBER 27, 1981, TO COMPLY
THEREWITH TO THE EXTENT THAT IT IS ABLE TO DO SO . . . . EVIDENCE OF
THAT COMPLIANCE IN THE FORM OF A COMMUNICATION DIRECTLY FROM THE
EXECUTIVE BOARD OF PATCO IS ATTACHED." THE "STATEMENT OF THE PATCO
EXECUTIVE BOARD," DATED OCTOBER 27, 1981, READS AS FOLLOWS:
ON OCTOBER 22, 1981, THE FEDERAL LABOR RELATIONS AUTHORITY ISSUED A
DECISION IN CASE NUMBER
3-CO-105 IN WHICH MEMBERS APPLEWHAITE AND FRAZIER VOTED TO REVOKE
PATCO'S EXCLUSIVE
RECOGNITION. CHAIRMAN HAUGHTON INDICATED THAT THE RECORD IN THE CASE
WAS INCOMPLETE AND,
THEREFORE, HE COULD NOT JOIN THE MAJORITY OPINION. HOWEVER, HE
INDICATED THAT HE WOULD
REVERSE HIMSELF AND JOIN THE MAJORITY IF, WITHIN 5 DAYS, PATCO DID
NOT END THE STRIKE AND
REPRESENT TO THE AUTHORITY THAT IT WOULD COMPLY WITH THE PROVISIONS
OF THE FEDERAL LABOR
MANAGEMENT RELATIONS STATUTE, INCLUDING ITS NO-STRIKE PROVISION.
PATCO AGREES WITH CHAIRMAN HAUGHTON'S FINDING THAT THE RECORD IN THIS
MATTER IS INCOMPLETE
AND, THEREFORE, DEFECTIVE.
AS PATCO UNDERSTANDS CHAIRMAN HAUGHTON'S DECISION, THE ONLY WAY THAT
WE COULD COMPLY WOULD
BE TO ORDER OUR MEMBERS TO RETURN TO WORK. HOWEVER, PATCO'S MEMBERS
HAVE BEEN LOCKED OUT BY
THEIR FORMER EMPLOYER AND COULD NOT RETURN EVEN IF SO ORDERED.
THE PRECEDING NOTWITHSTANDING, HOWEVER, IN AN EFFORT TO COMPLY WITH
CHAIRMAN HAUGHTON'S
DECISION, AND TO THE EXTENT OF OUR ABILITY TO COMPLY, WHEN THE FAA
ENDS ITS LOCK-OUT, PATCO
WOULD IMMEDIATELY ORDER ALL OF ITS MEMBERS TO RETURN TO WORK.
PATCO ALSO ACKNOWLEDGES, AND INTENDS TO COMPLY TO THE EXTENT THAT IT
CAN WITH, ITS
OBLIGATIONS TO CONDUCT ITSELF IN CONFORMANCE WITH ALL ASPECTS OF THE
FEDERAL LABOR MANAGEMENT
RELATIONS STATUTE, INCLUDING THOSE PROCEDURES FOR IMPASSE RESOLUTION.
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PROFESSIONAL AIR TRAFFIC CONTROLLERS
ORGANIZATION, AFFILIATED WITH MEBA, AFL-CIO
RESPONDENT
AND
FEDERAL AVIATION ADMINISTRATION
DEPARTMENT OF TRANSPORTATION
CHARGING PARTY
CASE NO. 3-CO-105
BRUCE ROSENSTEIN, ESQUIRE
PETER B. ROBB, ESQUIRE
SHARON PROST, ESQUIRE
FOR THE GENERAL COUNSEL
RICHARD J. LEIGHTON, ESQUIRE
GARY KLEIN, ESQUIRE
ROBERT RUSSELL BAILEY, ESQUIRE
FOR THE RESPONDENT
DOLPH DAVID SANDS, ESQUIRE
ROBERT I. ROSS, ESQUIRE
GARY W. BALDWIN, ESQUIRE
FOR THE CHARGING PARTY
BEFORE: JOHN H. FENTON
CHIEF ADMINISTRATIVE LAW JUDGE
DECISION
THIS CASE AROSE PURSUANT TO THE FEDERAL LABOR-MANAGEMENT RELATIONS
STATUTE, 5 U.S.C.ET SEQ., AS A RESULT OF AN UNFAIR LABOR PRACTICE
COMPLAINT FILED ON AUGUST 3, 1981, BY THE REGIONAL DIRECTOR, REGION III,
FEDERAL LABOR RELATIONS AUTHORITY, WASHINGTON, D.C. AGAINST THE
PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION.
IN SUBSTANCE, THE COMPLAINT, AS AMENDED, ALLEGES THAT RESPONDENT,
SINCE AUGUST 3, 1981, HAS CALLED AND PARTICIPATED IN A STRIKE OR WORK
STOPPAGE AT NUMEROUS FAA AIRPORT FACILITIES THROUGHOUT THE UNITED
STATES, AND THAT IT HAS FAILED TO TAKE ACTION TO PREVENT OR STOP SUCH
UNLAWFUL ACTIVITY, IN VIOLATION OF SECTION 7116(B)(7)(A) AND (B). /1/
A HEARING WAS HELD IN WASHINGTON, D.C. ON AUGUST 10 AND 11, 1981.
THE PARTIES WERE AFFORDED OPPORTUNITY TO BE HEARD, ADDUCE RELEVANT
EVIDENCE, EXAMINE AND CROSS-EXAMINE WITNESSES AND FILE BRIEFS. ON THE
BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE WITNESSES
AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT, CONCLUSIONS
OF LAW AND RECOMMENDATIONS.
FINDINGS OF FACT
IT IS ADMITTED THAT RESPONDENT IS A LABOR ORGANIZATION WITHIN THE
MEANING OF SECCION 7103(A)(4) OF THE STATUTE, THAT ROBERT E. POLI IS ITS
NATIONAL PRESIDENT, AND THAT IT HAS BEEN THE RECOGNIZED REPRESENTATIVE
OF A NATIONAL UNIT OF AIR TRAFFIC CONTROL SPECIALISTS EMPLOYED BY FAA.
PRIOR TO AUGUST 3, RESPONDENT'S PRESIDENT POLI HELD A PRESS
CONFERENCE AT WHICH HE SAID:
IF WE HAVE NOT RECEIVED A SETTLEMENT PROPOSAL WHICH OUR NEGOTIATING
TEAM DETERMINES SHOULD
BE OFFERED TO THE MEMBERSHIP, I WILL ORDER THE COUNT TO BEGIN. AFTER
THE TALLYING HAS BEEN
COMPLETED AND FOLLOWING VERIFICATION OF THE NECESSARY SUPPORT, THE
STRIKE WILL BEGIN ON THE
DAY SHIFT OF MONDAY, AUGUST 3.
AT A SUBSEQUENT PRESS CONFERENCE, MR. POLI SAID:
THE QUESTION IS WILL THE STRIKE CONTINUE. THE ANSWER IS YES.
THIS RECORD SHOWS THAT, ON THE MORNING OF AUGUST 3, PICKETS ASSEMBLED
AT ENTRANCES TO THE 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 THEY CARRIED
SIGNS ANNOUNCING IN LARGE LETTERS THAT PATCO WAS ON STRIKE, AND IN
SOMEWHAT SMALLER LETTERS THAT THEY WERE AIR TRAFFIC CONTROLLERS
BELONGING TO A PARTICULAR LOCAL UNION. BEGINNING WITH THE 11 A.M. SHIFT
THERE WAS MASSIVE ABSENTEEISM OF CONTROLLERS THROUGHOUT THE COUNTRY.
THUS, ONLY 2,308 OF 9,034 CONTROLLERS SCHEDULED FOR DUTY THAT DAY
REPORTED FOR WORK. SLIGHT IMPROVEMENT WAS REGISTERED EACH SUCCEEDING
DAY, WITH 3,434 CONTROLLERS REPORTING OF THE 9,286 SCHEDULED FOR DUTY ON
AUGUST 8. HENCE, AT BEST, ONLY 37% OF THE REGULAR EMPLOYEES MANNED
THEIR POSITIONS. THE CONSEQUENCES FOR FAA WERE THAT IT HAD TO HOLD DOWN
FLIGHTS, ON A NATIONAL BASIS, TO 69% OF NORMAL CAPACITY, REQUIRING THE
CANCELLATION OF 26,000 FLIGHTS DURING THOSE FIVE DAYS. TWENTY-THREE AIR
TRAFFIC CONTROL CENTERS WERE CLOSED AND RESTRICTIONS WERE IMPOSED UPON
ALL CATEGORIES OF AVIATION, INCLUDING MILITARY. /2/
ASIDE FROM POLI'S REMARKS, THERE IS LITTLE EVIDENCE THAT RESPONDENT
EXPLICITLY CALLED A STRIKE. IT WAS ESTABLISHED THAT VICE-PRESIDENT
STAKEM OF LOCAL 204 TOLD THE CHIEF OF THE WASHINGTON AIR TRAFFIC CONTROL
CENTER ON JULY 31 THAT HE HAD SECURED A PERMIT FROM THE STATE POLICE TO
PICKET IN FRONT OF THE CENTER BEGINNING ON AUGUST 3. GENERAL COUNSEL
ARGUES, THAT BECAUSE RESPONDENT IS THE EXCLUSIVE REPRESENTATIVE OF A
NATIONWIDE UNIT OF EMPLOYEES, AND THE EVIDENCE SHOWS THAT LOCAL UNION
OFFICIALS DEAL WITH MANAGEMENT IN ENFORCING THE TERMS OF THE NATIONAL
COLLECTIVE BARGAINING AGREEMENT, THOSE OFFICIALS ARE AGENTS OF
RESPONDENT AS WELL AS THEIR RESPECTIVE LOCALS.
AS FOR RESPONDENT'S PARTICIPATION IN A NATIONWIDE STRIKE, THE RECORD
ESTABLISHES THAT VARIOUS LOCAL UNION OFFICERS CARRIED PICKET SIGNS IN
CHICAGO AND ATLANTA, AND THAT THE PRESIDENT OF LOCAL 501 IN LONGMONT
PARTICIPATED IN A LARGE DEMONSTRATION OUTSIDE THE LONGMONT FACILITY.
AGAIN, SUCH PARTICIPATION IS ARGUED TO BE THE ACT OF RESPONDENT BECAUSE
THOSE LOCALS OFFICERS ARE ALSO AGENTS OF RESPONDENT. IN ADDITION,
COUNSEL FOR THE GENERAL COUNSEL REQUESTED THAT OFFICIAL NOTICE BE TAKEN
OF A FACT SO NOTORIOUS AS THAT OF A NATIONWIDE AIR TRAFFIC CONTROLLERS'S
STRIKE. /3/
THE RECORD IS DEVOID OF EVIDENCE THAT RESPONDENT TOOK ANY STEPS TO
PREVENT OR END THE WORK STOPPAGE. WHILE RESPONDENT ARGUES IT WAS THE
GENERAL COUNSEL'S BURDEN TO PROVE NO SUCH ACTION OCCURRED, IT IS CLEAR
THAT RESPONDENT IS REQUIRED TO COME FORWARD WITH SUCH EXCULPATING
EVIDENCE IN ORDER TO AVOID THE APPLICATION OF SECTION 7116(B)(7)(B).
AS NOTED, RESPONDENT DID NOT PRESENT EVIDENCE IN ITS DEFENSE.
RATHER, IT ARGUED THAT THE SCHEDULING OF THE HEARING FIVE DAYS AFTER
SERVICE OF THE COMPLAINT, IN A CONTEXT WHERE ITS ATTORNEYS WERE ENGAGED
IN, OR MONITORING, LITIGATION IN MANY FORUMS, EFFECTIVELY FORECLOSED THE
OPPORTUNITY TO PREPARE A DEFENSE, THUS DEPRIVING IT OF DUE PROCESS
RIGHTS. BECAUSE THE PARALLEL LITIGATION APPEARED ALSO TO FOCUS ON THE
QUESTION WHETHER AN ILLEGAL STRIKE WAS UNDERWAY, I PRESSED RESPONDENT'S
COUNSEL TO EXPLAIN WHY IT COULD NOT MAKE AN OFFER OF PROOF IDENTIFYING
SPECIFICALLY THE TESTIMONY OR OTHER EVIDENCE WHICH IT CLAIMED WOULD
REBUT THE GENERAL COUNSEL'S CASE, AND WHICH IT WOULD MARSHALL SHOULD
TIME PERMIT. RESPONDENT NEVER DID SO, BUT RATHER CONCENTRATED ON THOSE
MATTERS WHICH IT URGED SHOULD BE CONSIDERED IN MITIGATION OF THE
SO-CALLED DECERTIFICATION REMEDY SOUGHT BY THE GENERAL COUNSEL. WHILE
THE PURPOSE OF THIS PROBING EVIDENTIARY HEARING AND THE BRIEFING, I
CONCLUDE THAT RESPONDENT WAS PERFECTLY CAPABLE OF MAKING A
PARTICULARIZED PROFFER OF EVIDENCE THAT IT DID NOT CALL OR PARTICIPATE
IN THE STRIKE, OR THAT IT MAKE EFFORTS TO END THE STRIKE, IF SUCH
EVIDENCE WAS, IN FACT, AVAILABLE. I FURTHER CONCLUDE THAT THE FAILURE
TO DO SO DEMONSTRATES THAT SUCH EVIDENCE DOES NOT EXIST AND THAT
RESPONDENT NEVER SERIOUSLY INTENDED TO INTRODUCE EVIDENCE ON THE ISSUE.
FINALLY, I TAKE OFFICIAL NOTICE OF THE DECISION OF UNITED STATES
DISTRICT COURT JUDGE HAROLD H. GREENE (DLR NO. 149, AUGUST 4, 1981),
FINDING RESPONDENT IN CONTEMPT OF THAT COURT'S TEMPORARY RESTRAINING
ORDER ENJOINING IT FROM TAKING PART IN ANY STRIKE.
CONCLUSIONS OF LAW
WHILE NOT AS EXPLICIT A CALL TO ACTION AS A QUIBBLER MIGHT LIKE,
PRESIDENT POLI DID, AT THE FIRST PRESS CONFERENCE, STATE THAT HE WOULD
CALL FOR A STRIKE VOTE SHOULD FAA'S PROPOSAL BE INADEQUATE, AND THAT,
SHOULD THERE BE THE NECESSARY SHOW OF SUPPORT, A STRIKE WOULD ENSUE. AT
THE VERY LEAST THEN, HE ACKNOWLEDGED RESPONSIBILITY FOR SETTING THE
MACHINERY IN MOTION WHICH WOULD, SHOULD CERTAIN REQUISITES BE MET, LEAD
TO A STRIKE.
SHORTLY THEREAFTER, AT PRECISELY THE TIME MENTIONED BY PRESIDENT
POLI, THOUSANDS OF CONTROLLERS ABSENTED THEMSELVES FROM WORK, AND
THOUSANDS PATROLLED OUTSIDE THEIR PLACES OF EMPLOYMENT WITH SIGNS
ANNOUNCING, AT THE VERY LEAST, THAT THEIR RESPECTIVE LOCAL UNIONS WERE
ON STRIKE. THEREAFTER, PRESIDENT POLI ANNOUNCED THAT THE STRIKE WOULD
CONTINUE, AND HE AND RESPONDENT WERE FOUND TO BE IN CONTEMPT OF THE U.S.
DISTRICT COURT'S ORDER THAT THEY NOT TAKE PART IN A STRIKE. FINALLY, AT
HEARING, RESPONDENT DID NOT ATTEMPT TO PRODUCE, OR EVEN CLAIM IT COULD,
IF AFFORDED TIME, PRODUCE EVIDENCE THAT IT DID NOT CALL FOR AND
PARTICIPATE IN THE STRIKE.
QUITE ASIDE FROM PRESIDENT POLI'S WORDS, AN APPRECIATION OF LIFE'S
REALITIES STRONGLY SUGGESTS THAT THE SIMULTANEOUS QUITTING OF WORK BY
THE VAST MAJORITY OF PATCO'S 14,000 DUES PAYING MEMBERS, ACCOMPANIED BY
PICKETING ADVERTISING A STRIKE BY ITS LOCALS AT (ON THIS RECORD) FIVE
LOCATIONS, WAS NOT SIMPLY A FORTUITOUS CONJUNCTION OF THE WILLS OF MANY
INDIVIDUALS OR EVEN LOCAL UNIONS, BUT WAS ORCHESTRATED FROM ABOVE.
WHEN, IN SUCH A CONTEXT, RESPONDENT'S PRESIDENT UTTERS WORDS THAT APPEAR
TO CONSTITUTE A STRIKE CALL, AND SAYS WITH APPARENT APPROVAL (AND
CERTAINLY NO EFFORT OF DISASSOCIATION) THAT THE STRIKE WILL CONTINUE,
THE CONCLUSION SEEMS INESCAPABLE THAT RESPONDENT CALLED THE STRIKE.
SHOULD THE INFERENCES TO BE DRAWN ON SUCH A RECORD REQUIRE BUTTRESSING,
THERE IS BOTH THE IMPLICIT ADMISSION THAT THERE IS NO COUNTERVAILING
EVIDENCE AND THE FACT THAT ANOTHER FORUM HAS FOUND THAT THE GENERAL
COUNSEL HERE SEEKS TO PROVE. AS THERE NOTED BY JUDGE GREENE, "(T)HE
COURT WOULD HAVE TO BLIND ITSELF TO THE REALITIES TO FIND THAT THESE
FACTORS IN CONJUNCTION DO NOT DEMONSTRATE A VIOLATION . . . ." I
THEREFORE FIND THAT THE GENERAL COUNSEL HAS CONVINCINGLY PROVED THAT
RESPONDENT CALLED AND PARTICIPATED IN A STRIKE IN VIOLATION OF SECTION
7116(B)(7)(A), AND, IN THE ABSENCE OF ANY EVIDENCE THAT RESPONDENT AT
ANY TIME SOUGHT TO END THE STRIKE, I FIND A VIOLATION OF SECTION
7116(B)(7)(B). /4/ I FURTHER FIND THAT SUCH VIOLATIONS WERE WILLFUL
AND INTENTIONAL.
FINALLY, I FIND NOTHING IN THE STATUTE OR ITS LEGISLATIVE HISTORY
WHICH SUGGESTS THAT THERE MAY EXIST A DEGREE OF PROVOCATION OR OTHER
EXCULPATORY CIRCUMSTANCE WHICH MIGHT RENDER STRIKE ACTION PRIVILEGED.
REMEDY
SECTION 7120(F) PROVIDES THAT:
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 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.
SECTION 7103(A)(4)(D) PROVIDES THAT THE TERM "LABOR ORGANIZATION"
DOES NOT INCLUDE:
"AN ORGANIZATION WHICH PARTICIPATES IN THE CONDUCT OF A STRIKE
AGAINST THE GOVERNMENT OR
ANY AGENCY THEREOF OR IMPOSES A DUTY OR OBLIGATION TO CONDUCT,
ASSIST, OR PARTICIPATE IN SUCH
A STRIKE."
THE GENERAL COUNSEL SEEKS AN ORDER PERMANENTLY REVOKING RESPONDENT'S
EXCLUSIVE RECOGNITION STATUS AND ITS STATUS AS A LABOR ORGANIZATION,
WITHOUT QUALIFICATION AS TO WHEN, HOW, OR UNDER WHAT CONDITIONS SUCH
STATUS COULD BE RESTORED. AS RESPONDENT OBSERVED, THE REMEDY SOUGHT IS
A DEATH SENTENCE - INDUSTRIAL CAPITAL PUNISHMENT - WHICH WOULD
PERMANENTLY BAR IT FROM FUNCTIONING AS A LABOR ORGANIZATION.
RESPONDENT CONTENDS THAT SECTION 7120(F) DOES NOT REQUIRE REVOCATION
OF ITS EXCLUSIVELY RECOGNIZED STATUS, AS OPPOSED TO OTHER APPROPRIATE
(PRESUMABLY LESSER) DISCIPLINARY ACTION, AND FURTHER THAT IT DOES NOT
EVEN AUTHORIZE PERMANENT REVOCATION OF SUCH STATUS. /5/ GENERAL
COUNSEL ARGUES THAT SUCH UNCONDITIONAL DEBARMENT IS REQUIRED IN THE
CIRCUMSTANCES, PARTICULARLY IN VIEW OF THE FACT THAT RESPONDENT HAS HERE
FLAGRANTLY FLOUTED ASSURANCES GIVEN THE ASSISTANT SECRETARY OF LABOR IN
1971. RESPONDENT ALSO ARGUES THAT THERE ARE MATTERS TO BE CONSIDERED IN
MITIGATION OF THE MOST SEVERE REMEDIAL ACTION. THUS IT ASSERTS THAT
MANAGEMENT'S INTRANSIGENCE AT THE BARGAINING TABLE REQUIRED CONTROLLERS
TO WORK UNDER INTOLERABLE CIRCUMSTANCES WHICH IMPERILED THEIR OWN HEALTH
AND SAFETY AS WELL AS THE SAFETY OF THE FLYING PUBLIC, AND THAT FAA'S
ALLEGED REFUSAL TO BARGAIN IN GOOD FAITH AND CLAIMED PURPOSE OF
DESTROYING THE UNION CONSTITUTED FURTHER PROVOCATION OF A STRIKE. /6/
THE REQUEST FOR A PERMANENT REVOCATION IS, AS NOTED, UNPRECEDENTED.
IT IS, IN FACT, UNCLEAR TO ME WHETHER THE GENERAL COUNSEL SEEKS AN ORDER
WHICH, BY ITS TERMS, PERMANENTLY REVOKES RESPONDENT'S STATUS AS THE
EXCLUSIVELY RECOGNIZED REPRESENTATIVE, OR SIMPLY ONE WHICH IS OPEN-ENDED
IN THAT IT MAKES NO EXPLICIT REFERENCE TO THE WAY IN WHICH, AND THE TIME
FROM WITHIN WHICH, RESPONDENT MAY SEEK RESTORATION OF SUCH STATUS. IF
IT IS THE FORMER, I KNOW OF NO AUTHORITY FOR SUCH AN IRREVERSIBLE
REMEDY, ONE WHICH SOUNDS IN PUNISHMENT. ON THE OTHER HAND, THE STATUTE
MAKES NO MENTION OF REVOCATION "UNTIL SUCH TIME AS" THE RESPONDENT
SATISFIES THE AUTHORITY OF ITS CONSCIENTIOUS INTENTION TO REFRAIN FROM
STRIKES, OR OF ANY SCHEDULE FOR MAKING APPLICATION FOR RESTORATION OF
ITS STATUS. I WOULD THEREFORE RECOMMEND A REMEDY WHICH IS SILENT ON
SUCH MATTERS, AND SIMPLY CONFORMS TO THE STATUTORY LANGUAGE.
SUCH LEGISLATIVE HISTORY AS HAS BEEN BROUGHT TO MY ATTENTION STRONGLY
SUPPORTS THE GENERAL COUNSEL WITH RESPECT TO WHETHER THE OPINION OF
"OTHER APPROPRIATE DISCIPLINARY ACTION" IS AVAILABLE IN THIS CASE. THUS
THE CONFERENCE REPORT /7/ INDICATES THAT THE AMENDMENT TO THE SENATE
BILL, WHICH SPECIFIED THAT THE "AUTHORITY MAY IMPOSE DISCIPLINARY ACTION
OTHER THAN DECERTIFICATION . . . (WAS) . . . TO ALLOW FOR INSTANCES,
SUCH AS A WILDCAT STRIKE, WERE DECERTIFICATION WOULD NOT BE APPROPRIATE.
IN CASES WHERE THE AUTHORITY FINDS THAT A PERSON HAS VIOLATED THIS
PROVISION, DISCIPLINARY ACTION OF SOME KIND MUST BE TAKEN. THE
AUTHORITY MAY TAKE INTO ACCOUNT THE EXTENT TO WHICH THE ORGANIZATION
MADE EFFORTS TO PREVENT OR STOP THE ILLEGAL ACTIVITY IN DECIDING WHETHER
THE ORGANIZATION SHOULD BE DECERTIFIED. HERE, RESPONDENT'S VIOLATION IS
NOT ONLY OPEN AND FLAGRANT, BUT RESPONDENT IS IN THIS RESPECT A TWO-TIME
LOSER. FURTHER ITS CONTENTIONS REGARDING MITIGATING CIRCUMSTANCES,
HOWEVER REAL AND SERIOUS THEY MAY BE, FIND NO ECHO IN EITHER THE STATUTE
OR ITS LEGISLATIVE HISTORY. CONGRESS GAVE ONLY ONE EXAMPLE OF THE KIND
OF CIRCUMSTANCES IN WHICH THE LESSER REMEDY WOULD BE APPROPRIATE, AND IT
GOES TO THE NATURE AND SERIOUSNESS OF THE VIOLATION RATHER THAN TO
SURROUNDING EVENTS WHICH ARGUABLY CONSTITUTE SERIOUS PROVOCATION OR
OTHER MITIGATING CIRCUMSTANCES. IN MY VIEW, THE STATUTE PLAINLY
REQUIRES REVOCATION OF RESPONDENT'S STATUS AS THE EXCLUSIVELY RECOGNIZED
REPRESENTATIVE OF THE EMPLOYEES IN THIS UNIT. /8/
HAVING FOUND AND CONCLUDED THAT RESPONDENT HAS WILLFULLY AND
INTENTIONALLY VIOLATED SECTION 7116(B)(7)(A) AND (B), I RECOMMEND THAT
THE FEDERAL LABOR RELATIONS AUTHORITY ENTER THE FOLLOWING ORDER:
ORDER
PURSUANT TO SECTION 7118 AND 7120 OF THE STATUTE AND SECTION 2423.29
OF THE FEDERAL LABOR RELATIONS AUTHORITY'S RULES AND REGULATIONS, THE
AUTHORITY HEREBY REVOKES THE EXCLUSIVE RECOGNITION STATUS OF THE
PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION, AFFILIATED WITH MEBA,
AFL-CIO. THAT ORGANIZATION SHALL IMMEDIATELY CEASE TO BE LEGALLY
ENTITLED AND OBLIGATED TO REPRESENT EMPLOYEES IN THE UNIT COVERED BY ITS
MOST RECENT CONTRACT. FURTHERMORE, THAT ORGANIZATION SHALL:
1. CEASE AND DESIST FROM:
(A) CALLING, OR PARTICIPATING IN A STRIKE OR WORK STOPPAGE AGAINST
THE FEDERAL AVIATION
ADMINISTRATION OR ANY OTHER AGENCY OF THE UNITED STATES, OR ASSISTING
AND ENCOURAGING IN ANY
MANNER SUCH A STRIKE OR WORK STOPPAGE. /9/
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION:
(A) POST, AT ALL ITS NATIONAL AND LOCAL OFFICES, AND IN NORMAL
MEETING PLACES, COPIES OF
THE ATTACHED NOTICE MARKED "APPENDIX" ON A FORM TO BE FURNISHED BY
THE FEDERAL LABOR RELATIONS
AUTHORITY AND TO BE SIGNED BY THE NATIONAL PRESIDENT OF THE
PROFESSIONAL AIR TRAFFIC
CONTROLLERS ORGANIZATION. COPIES OF SUCH NOTICE SHALL BE POSTED FOR
A PERIOD OF 60
CONSECUTIVE DAYS IN CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE
NOTICES TO MEMBERS ARE
CUSTOMARILY POSTED. RESPONDENT SHALL TAKE REASONABLE STEPS TO ENSURE
THAT SUCH NOTICE ARE NOT
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(B) FURNISH SUFFICIENT COPIES OF THE NOTICE TO THE FEDERAL AVIATION
ADMINISTRATION, SHOULD
IT BE WILLING, FOR POSTING AT PLACES WHERE IT CUSTOMARILY POSTS
INFORMATION FOR ITS AIR
TRAFFIC CONTROLLERS. SUCH NOTICES SHALL BE FURNISHED TO THE FEDERAL
AVIATION ADMINISTRATION
WITHIN 14 DAYS OF THIS DECISION AND ORDER.
(C) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY IN WRITING, WITHIN
30 DAYS OF THE DATE OF
THIS ORDER, WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
JOHN H. FENTON
CHIEF ADMINSTRATIVE LAW JUDGE
DATED: AUGUST 14, 1981
WASHINGTON, D.C.
APPENDIX
NOTICE TO ALL MEMBERS
PURSUANT TO
A DECISION AND ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
AND IN ORDER TO EFFECTUATE THE POLICIES OF
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE
WE HEREBY NOTIFY OUR MEMBERS THAT:
WE WILL NOT CALL OR PARTICIPATE IN A STRIKE OR WORK STOPPAGE AGAINST
THE FEDERAL AVIATION ADMINISTRATION OR ANY OTHER AGENCY OF THE UNITED
STATES GOVERNMENT, OR IN ANY MANNER ASSIST IN, OR ENCOURAGE SUCH ILLEGAL
ACTIVITY.
WE WILL NOT CONDONE ANY OF THE ABOVE-MENTIONED ACTIVITIES BY FAILING
TO TAKE ACTION TO STOP SUCH ILLEGAL ACTIVITY.
PROFESSIONAL AIR TRAFFIC CONTROLLERS
ORGANIZATION, AFFILIATED WITH MEBA,
AFL-CIO
DATED: . . . BY: . . .
PRESIDENT
DATED: . . . BY: . . .
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING, AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE NEAREST
REGIONAL OFFICE OF THE FEDERAL LABOR RELATIONS AUTHORITY.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
FOOTNOTES
/1/ SECTION 7116(A)(7)(A) AND (B) PROVIDES THAT "IT 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.
/2/ ALTHOUGH SUCH INTERFERENCE WITH FAA'S OPERATIONS IS NO LONGER
RELEVANT TO THE CAUSE OF ACTION IN VIEW OF THE WITHDRAWAL OF THE
PICKETING ALLEGATION, I SET THESE MATTERS FORTH BECAUSE THEY BEAR UPON
THE REASONABLENESS OF THE EXPEDITED PROCEDURES EMPLOYED HEREIN IN THE
LIGHT OF SUCH CURTAILMENT OF COMMERCIAL, PRIVATE AND EVEN MILITARY
FLIGHTS.
/3/ WHILE IT IS UNNECESSARY TO DO SO ON THIS RECORD, I AM OF THE
OPINION THAT SUCH NOTICE MAY BE TAKEN, GIVEN THE REPORTAGE FROM ALL
ELEMENTS OF THE NEWS MEDIA, INCLUDING THE LABOR PRESS, AND GIVEN THE
FACT THAT RESPONDENT NEITHER ATTEMPTED TO DEFEND AGAINST SUCH ALLEGATION
NOR CAME FORWARD WITH A PERSUASIVE REASON FOR ITS CLAIMED INABILITY, IN
THIS TIME FRAME, TO DO SO. THUS THE APPEARANCE THAT THE FACT SOUGHT TO
BE NOTICED COULD NOT REASONABLY BE SUBJECT TO DISPUTE WAS FORTIFIED BY
THE ABSENCE OF ANY REAL DISPUTE ABOUT IT.
/4/ IN REACHING THIS CONCLUSION, I ALSO RELY ON THE EVIDENCE THAT
LOCAL OFFICERS PARTICIPATED IN THE PICKETING, CONCLUDING THAT THEIR
INVOLVEMENT IN REPRESENTING NATIONAL UNIT EMPLOYEES MAKES THEM AGENTS OF
RESPONDENT.
/5/ IN THE CASE ARISING IN 1971 UNDER EXECUTIVE ORDER 11491 AS A
RESULT OF PATCO'S 1970 STRIKE (PROFESSIONAL AIR TRAFFIC CONTROLLERS
ORGANIZATION, INC., 1 A/SLMR NO. 10, THE ASSISTANT SECRETARY OF LABOR
DID NOT PERMANENTLY DEBAR THAT ORGANIZATION AS AN EMPLOYEE
REPRESENTATIVE DESPITE THE FACT THAT HE FOUND THE VIOLATION TO BE A
FLAGRANT ONE. HE CONCLUDED SUCH DEBARMENT WOULD CONSTITUTE AN
UNWARRANTED DEPRIVATION OF THE CONTROLLERS' FREEDOM TO CHOOSE A
COLLECTIVE BARGAINING REPRESENTATIVE, AND ACCORDINGLY BARRED IT FROM
UTILIZING THE PROCEDURES AVAILABLE TO A LABOR ORGANIZATION AS DEFINED IN
THE ORDER "UNTIL SUCH TIME AS . . . (IT) CAN DEMONSTRATE TO MY
SATISFACTION THAT IT HAS COMPLIED WITH MY DECISION AND ORDER AND THAT IT
WILL COMPLY IN THE FUTURE WITH THE PROVISIONS OF THE EXECUTIVE ORDER."
FIVE MONTHS LATER THAT BAN WAS LIFTED. (1 A/SLMR NO. 51).
/6/ IT IS TO BE NOTED THAT THE STATUTE CONTAINS NO PROVISION
CORRESPONDING TO SECTION 502 OF THE NLRA WHICH PROVIDES THAT THE
QUITTING OF LABOR BECAUSE OF ABNORMALLY DANGEROUS WORKING CONDITIONS
SHALL NOT BE DEEMED A STRIKE.
/7/ PAGE 824, LEGISLATIVE HISTORY OF THE FEDERAL SERVICE LABOR--
MANAGEMENT RELATIONS STATUTE, TITLE VII OF THE CIVIL SERVICE REFORM ACT
OF 1978, 96TH CONGRESS, 1ST SESSION, COMMITTEE PRINT NO. 9607, NOVEMBER
19, 1979.
/8/ THE FINDING OF A SECTION 7116(B)(7) VIOLATION ALSO, OF COURSE,
STRIPS RESPONDENT OF ITS STATUS AS A LABOR ORGANIZATION WITHIN THE
MEANING OF SECTON 7103(A)(4)(D). I SEE NO NEED TO ELABORATE ON THE
OBVIOUS CONSEQUENCES OF THAT LOSS, IN TERMS OF RESPONDENT'S USE OF THE
STATUTE, IN THIS DECISION, OR ANY WARRANT TO ADDRESS THE MATTER IN THE
PROPOSED REMEDY.
/9/ IT IS NOTED THAT UNITED STATES DISTRICT COURT JUDGE HAROLD H.
GREENE TERMINATED HIS CONTEMPT ORDER EFFECTIVE WITH FAA'S DISCHARGE OF
THE STRIKERS, REASONING THAT RESPONDENT COULD NOT PURGE ITSELF WHERE THE
GOVERNMENT HAD MADE IMPOSSIBLE COMPLIANCE WITH THE COURT'S
RETURN-TO-WORK ORDER. IN MY VIEW, THAT APPROACH IS NOT WARRANTED HERE.
WHILE IT IS TRUE THAT, SHOULD MY RECOMMENDATION BE ACCEPTED BY THE
AUTHORITY, RESPONDENT WILL LOSE ITS RIGHT TO REPRESENT THESE EMPLOYEES,
AND CEASE TO MEET THE DEFINITION OF A LABOR ORGANIZATION, AND THE
STRIKERS WILL LOSE THEIR STATUS AS EMPLOYEES, STRIKE ACTION NEVERTHELESS
CONTINUES. TO ACCEPT THIS ARGUMENT THAT RESPONDENT IS NOW BEYOND THE
REACH OF THE STATUTE IS TO INDULGE IN SOPHISTRY WHICH EFFECTIVELY
NULLIFIES SECTION 7116(B)(7), PREVENTING THE VIOLATOR FROM BEING
REQUIRED TO REMEDY ITS WRONGS PRECISELY BECAUSE IT IS A VIOLATOR. WHILE
I FEEL FREE TO TAKE OFFICIAL NOTICE OF THE DISCHARGES, GIVEN THAT FACT'S
NOTORIETY AND THE APPARENT ABSENCE OF ANY DISPUTE ABOUT IT, I DO NOT
THINK IT APPROPRIATE TO SPECULATE ON THE CONSEQUENCES OF AN OFFER TO
RETURN TO WORK.