Professional Air Traffic Controllers Organization, Affiliated with MEBA, AFL-CIO (Respondent) and Federal Aviation Administration, Department of Transportation (Charging Party)

 



[ 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.
 
 
 
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                              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
 SL