Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.
Concurring opinions filed by Chief Judge SPOTTSWOOD W. ROBINSON, III and Circuit Judge MacKINNON.
TABLE OF CONTENTS
Page
I. Background__________________________ 551
A. The PATCO Strike................. 551
B. Federal Labor Relations Authority Proceedings _________________________ 552
II. Ex Parte Communications During the FLRA
Proceedings__________________________ 556
A. A.L.J. Vittone’s Findings____________ 557
1. The Meeting Between Member Applewhaite and FLRA General Counsel Gordon ________________ 557
3. Member Applewhaite’s Dinner with Albert Shanker ________________ 559
B. The Parties’ Positions_______________ 561
C. Applicable Legal Standards__________ 561
1. The Statutory Prohibitions of Ex Parte Contacts and the FLRA Rules ________________________ 561
2. Remedies for Ex Parte Communications _______________________ 564
D. Analysis of the Alleged Ex Parte Communications with FLRA Members_____ 565
1. The Meeting Between Member Applewhaite and FLRA General Counsel Gordon ________________ 566
2. Secretary Lewis’ Telephone Calls to Members Frazier and Applewhaite _______________________ 568
3. Member Applewhaite’s Dinner with Albert Shanker ________________ 569
E. Member Applewhaite Alleged “Personal Interest” in the PATCO Case------- 573
F. Conclusion________________________ 574
III. PATCO’s Violation of the Ban on Federal Employee Strikes______________________ 575
A. The Scope of Review_______________ 575
B. Violation of Section 7116(b)(7)(A)_____ 576
C. Violation of Section 7116(b)(7)(B) _____ 577
IV. Revocation of PATCO's Exclusive Recognition Status___________________________ 578
A.The FLRA’s Discretion Under Section 7120(f) 578
1. The Statutory Basis of the FLRA’s Revocation Power______________ 579
2. The Legislative History of the FLRA's Revocation Power _______ 580
B. The FLRA’s Exercise of Its Discretion _____________________________ 585
C. Evidence of Mitigating Factors_______ 586
V.Arguments of the Amici Curiae __________■ 589
A. Arguments of the American Federation of Government Employees_________589
B. Argument of Anthony J. Skirlick, Jr. .. 590
VI.Conclusion___________________________ 591
Federal employees have long been forbidden from striking against their employer, the federal government, and thereby denying their services to the public at large.1 The United States Code presently prohibits a person who “participates in a strike . . . against the Government of the United States” from accepting or holding a position in the federal government, 5 U.S.C. § 7311(2) (1976), and violation of this section is a criminal offense, 18 U.S.C. § 1918(3) (1976). Newly hired federal employees are required to execute an affidavit attesting that they have not struck and will not strike against the government, 5 U.S.C. § 3333(a) (1976). In addition, since the inception of formal collective bargaining between federal employee unions and the federal government, unions have been required to disavow the strike as an economic weapon.2 Since 1969, striking has been expressly designated a union unfair labor practice.3
In this case we review the first application of section 7120(f) by the FLRA. After the Professional Air Traffic Controllers Organization (“PATCO”) called a nationwide strike of air traffic controllers against the Federal Aviation Administration (“FAA”) in the summer of 1981, the Authority revoked PATCO’s status as exclusive bargaining representative for the controllers. For the reasons set forth below, we affirm the decision of the Authority.
I. BACKGROUND
A. The PATCO Strike
The Professional Air Traffic Controllers Organization has been the recognized exclusive bargaining representative for air traffic controllers employed by the Federal Aviation Administration since the early 1970s. Faced with the expiration of an existing collective bargaining agreement, PATCO and the FAA began negotiations for a new contract in early 1981. A tentative agreement was reached in June, but was overwhelmingly rejected by the PATCO rank and file. Following this rejection, negotiations began again in late July. PATCO announced a strike deadline of Monday, August 3, 1981.
Failing to reach a satisfactory accord, PATCO struck the FAA on the morning of August 3. Over seventy percent of the nation’s federally employed air traffic controllers walked off the job, significantly reducing the number of private and commercial flights in the United States.4
In prompt response to the PATCO job actions, the Government obtained restraining orders against the strike,5 and then civil and criminal contempt citations when the restraining orders were not heeded.6 The
B. Federal Labor Relations Authority Proceedings
John H. Fenton, Chief Administrative Law Judge of the FLRA, conducted hearings on the unfair labor practice charge on the afternoon of August 10. The General Counsel of the FLRA presented testimony establishing that on the morning of August 3 pickets assembled at entrances to 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, the picketers carried signs that informed the public that they were air traffic controllers belonging to a particular PATCO Local and that PATCO was on strike. Attendance records presented by FAA witnesses indicated that only 2,308 of the 9,304 air traffic controllers scheduled to work nationwide on August 3 actually reported. ALJ at 3. FAA officials from the various facilities also identified striking air traffic controllers, including PATCO Local officers, in photographs of the picketing outside of the Air Traffic Control Centers. In several cases the persons identified, including the PATCO Local officers, were scheduled for work at the times the photographs were taken.
In addition to this evidence, an FAA official identified PATCO National President Robert E. Poli in two videotaped news conferences. In one videotape Mr. Poli was recorded as stating:
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 the 3rd.
In the second videotape, apparently made after the strike had begun and after a temporary restraining order had issued, Mr. Poli was recorded as saying: “The question is will the strike continue. The answer is yes.”8
In response, PATCO offered no evidence to suggest that a strike had not occurred, to substantiate its assertion that the FLRA’s evidence only demonstrated a number of separate strikes by PATCO Locals, or to establish that PATCO had made any efforts to prevent or stop the strike. Based on this record, and taking official notice of United States v. Professional Air Traffic Controllers Organization, 107 L.R.R.M. (BNA) 3210 (D.D.C.1981) (holding PATCO and Robert Poli in civil contempt for failing to comply with a temporary restraining order against the strike), Chief A.L.J. Fenton found that PATCO called and participated in a strike,
At the proceedings before Chief A.L.J. Fenton, PATCO complained of insufficient time to prepare a defense, particularly with regard to matters potentially in mitigation of the remedy to be imposed by the FLRA. PATCO suggested, but did not promise,9 that if granted a continuance it might offer evidence in support of a claim of mitigation by attempting to show that the working conditions for PATCO members were unsafe, that the FAA had committed an unfair labor practice by refusing to bargain in good faith,10 and that the strike had been caused by anti-union animus in the FAA.11 Judge Fenton recessed the hearing overnight to allow PATCO to decide whether to pursue a defense against the unfair labor practice charge, including a possible proffer with respect to mitigating circumstances. When the hearing reconvened on August 11, PATCO counsel declined to proceed with any specific defense on behalf of the union.12 Rather, union counsel merely suggested that unsafe working conditions and the FAA’s refusal to bargain should be considered in mitigation; however, no testimony or other evidence was offered on these matters. Judge Fenton allowed PATCO to
On August 14, PATCO filed its post-hearing brief; the ALJ Decision issued on the same day. In his recommended decision, Chief A.L.J. Fenton concluded that PAT-CO’s arguments in mitigation could have no effect on the appropriate penalty:
[PATCO’s] contentions regarding mitigating circumstances,- however real and serious they may be, find no echo in either the Statute or the 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 sorrounding [sic] events which arguably constitute serious provocation or other miltigating [sic] circumstances.
ALJ at 8. For this reason, and because PATCO produced no evidence that it had in any way attempted to comply with the statutory ban on strikes, Judge Fenton recommended that the FLRA revoke PATCO’s exclusive recognition status and that PAT-CO “immediately cease to be legally entitled and obligated to represent employees in the unit.” ALJ at 8-9.
The FLRA General Counsel, the FAA and PATCO all filed exceptions to the A.L. J.’s recommended findings of fact and conclusions of law. The FLRA General Counsel and the FAA both excepted to the ALJ Decision to the extent that it failed to recommend a permanent revocation of PAT-CO’s status as a labor organization under Title VII of the Civil Service Reform Act. PATCO excepted to the ALJ Decision on three principal grounds: (1) that the expedited hearing schedule had afforded PAT-CO inadequate time to prepare its defense; (2) that the FLRA General Counsel and the FAA had failed to produce sufficient evidence at the hearing to establish that PAT-CO had called, participated in, or condoned a strike in violation of Title VII; and (3) that Judge Fenton had unfairly precluded PATCO from introducing relevant evidence in mitigation of the remedy.14 The FLRA heard oral argument from PATCO, the FLRA General Counsel and the FAA on September 16, 1981.15
In seriatim opinions issued on October 22, 1981, the FLRA Members rejected the exceptions filed by the parties and affirmed the ALJ Decision. All three Members of the Authority agreed that the expedited proceedings had not violated PATCO’s due process rights, any statute or agency regu
FLRA Member Frazier took a limited view of the discretion afforded the Authority under section 7120(f). He concluded, upon reading the relevant legislative history, that “[t]he 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 activity.” PATCO at 22. Since there was no such evidence, Member Frazier decided that “the facts of this case permití ] nothing less than revocation of PAT-CO’s exclusive recognition status.” Id. at 23.17
Member Applewhaite concurred in Member Frazier’s disposition of the case. He disagreed, however, with Member Frazier’s limited view of the Authority’s remedial discretion. He interpreted the language of section 7120(f) to vest the FLRA with broad discretion, but held that the only appropriate exercise of that discretion in this case was to revoke PATCO s exclusive recognition status. PATCO at 31.18
Chairman Haughton, like Member Applewhaite, interpreted the statutory language of section 7120(f) and its legislative history as vesting the Authority with broad remedial discretion. Chairman Haughton thus expressed concern about the completeness of the record compiled by the A.L.J. In particular, he opined that the A.L.J.’s denial of a continuance for PATCO to gather evidence of mitigating circumstances potentially relevant to the remedy was erroneous because it may have deprived the Authority of evidence relevant to its decision. PAT-CO at 35. Nonetheless, Chairman Haughton found one fact of overriding importance: PATCO had made no attempt to end the strike. He therefore concluded that unless PATCO.ended the strike within five days of the issuance of the FLRA Decision, and unless PATCO represented to the Authority that it intended to abide by the no-strike provisions of Title VII, any additional evidence could have no mitigating effect on the remedy. Pending PATCO’s response, Chairman Haughton conditionally dissented from the decision of Members Frazier and Applewhaite to revoke PAT-CO’s exclusive recognition status. Id. at 35-36.
In an attempt to comply with Chairman Haughton’s condition on his dissent, the PATCO Executive Board issued a statement on October 27, 1981. The statement averred that PATCO was then unable to end the strike because its members had
On the same day that the Federal Labor Relations Authority issued its decision, PATCO petitioned for review in this court.20 Concurrently, PATCO moved for an emergency stay of the FLRA Decision. A temporary administrative stay was granted by the court, and the FLRA was directed to submit a prompt response. Professional Air Traffic Controllers Organization v. FLRA, No. 81-2135 (D.C.Cir. Oct. 23, 1981) (order granting temporary stay).
Upon receiving and considering the FLRA’s response, the court dissolved the temporary stay and denied PATCO’s motion for a stay pending a decision on the merits. In recognition of the urgency of the case and the public interest in a prompt disposition, the court ordered sua sponte expedited briefing and oral argument. Id. (D.C.Cir. Oct. 27, 1981) (order dissolving temporary stay, denying motion for stay pending review, and ordering expedited briefing and oral argument). The court also granted motions by the American Federation of Government Employees and by Anthony J. Skirlick, Jr. to file briefs as amicus curiae. On December 3, 1981, the court heard oral arguments by ’ petitioner PATCO, respondent FLRA, intervenor FAA and amicus Skirlick.
II. EX PARTE COMMUNICATIONS DURING THE FLRA • PROCEEDINGS
Unfortunately, allegations of improprieties during the FLRA’s consideration of this case forced us to delay our review on the merits. Only a day before oral argument, the Department of Justice, which represents the FAA in this review, informed the court that the Department of Justice Criminal Division and the FBI had investigated allegations of an improper contact between a “well-known labor leader” and FLRA
Because our concerns extended beyond the presence or absence of criminal wrongdoing to the protection of the integrity of the administrative and judicial decisionmaking processes, we were not prepared to rely solely on the decision of the Criminal Division to close its investigation as proof that no improper influence had been exercised. Instead, we invoked a procedure that this court has occasionally employed in like situations in the past.21 Without assuming that anything improper had in fact occurred or had affected the FLRA Decision in this case, we ordered the FLRA “to hold, with the aid of a specially-appointed administrative law judge, an evidentiary hearing to determine the nature, extent, source and effect of any and all ex parte communications and other approaches that may have been made to any member or members of the FLRA while the PATCO case was pending before it.” Professional Air Traffic Controllers Organization v. FLRA, 672 F.2d 109, 113 (D.C.Cir.1982) (per curiam) (order directing special evidentiary hearing).
Following our remand on the ex parte communications issue, John M. Vittone, an Administrative Law Judge with the Civil Aeronautics Board, was appointed to preside over an evidentiary proceeding. Subsequently, Judge Vittone conducted a hearing from March 4 to March 17. Pursuant to the order of this court, the parties to this review, the FLRA Members, and all persons alleged to have contacted any Authority Member during the pendency of the PAT-CO case were allowed to participate fully in the hearing. A.L. J. Vittone made extensive findings regarding all possibly relevant approaches to and communications with FLRA Members. After the record of the hearing and A.L.J. Vittone’s recommended findings were filed with the court, the parties submitted briefs on the recommended findings and on the appropriate remedial action. On April 13, 1982, the court heard further oral argument,. limited to the issue of ex parte contacts.
A. A. L. J. Vittone’s Findings
A. L. J. Vittone’s inquiry led to the disclosure of a number of communications with FLRA Members that were at least arguably related to the Authority’s consideration of the PATCO case. We find the vast majority of these communications unobjectionable. See notes 38-41 infra. Three occurrences, however, are somewhat more troubling and require our careful review and discussion. We first summarize A. L. J. Vittone’s findings regarding them.
1. The Meeting Between Member Applewhaite and FLRA General Counsel Gordon 22
On August 10, 1981 (one week after the unfair labor practice complaint against PATCO was filed), H. Stephan Gordon, the FLRA General Counsel, was in Member Applewhaite’s office discussing administrative matters unrelated to the PATCO case. During Gordon’s discussion with Member Applewhaite, Ms. Ellen Stern, an attorney with the FLRA Solicitor’s office, entered Member Applewhaite’s office to deliver a copy of a memorandum entitled “Decertification of Labor Organization Participating in the Conduct of a Strike in Violation of Section 7116(b)(7) of the Statute.” Ms. Stern had prepared the memo at the re
During Ms. Stern’s discussion, both Member Applewhaite and General Counsel Gordon asked her general questions (e.g., regarding the availability of other remedies and whether she had researched the relevant legislative history). General Counsel Gordon did not ask Member Applewhaite any questions or express any views on the issues discussed in the memorandum. Nor did Member Applewhaite express any opinion on the correct statutory interpretation. While the conversation at least implicitly focused on the PATCO case, the facts of the case and the appropriate disposition were not discussed. The discussion ended after ten or fifteen minutes.
A. L. J. Vittone concluded that “[t]he conversation had no effect or impact on Member Applewhaite’s ultimate decision in the PATCO case.” Findings at 7, ¶ 15.
2. Secretary Lewis’ Telephone Calls to Members Frazier and Applewhaite24
During the morning of August 13, 1981, Secretary of Transportation Andrew L. Lewis, Jr. telephoned Member Frazier. Secretary Lewis stated that he was not calling about the substance of the PATCO case, but wanted Member Frazier to know that, contrary to some news reports, no meaningful efforts to settle the strike were underway. Secretary Lewis also stated that the Department of Transportation would appreciate expeditious handling of the case. Not wanting to discuss the PAT-CO case with Secretary Lewis, Member Frazier replied, “I understand your position perfectly, Mr. Secretary.” Secretary Lewis then inquired whether Member Applewhaite was in Washington, D.C. at that time. Member Frazier replied that he was, but that Chairman Haughton was out of town. Although Member Frazier offered to convey the Secretary’s message to Member Applewhaite, Secretary Lewis stated that he would call personally.
Member Frazier discussed Secretary Lewis’ call with FLRA Solicitor Robert Freehling, describing it as relating to status and settlement. Solicitor Freehling advised Member Frazier that the communication did not fall within the ex parte prohibitions of the FLRA Rules.
Member Frazier also advised Member Applewhaite of Secretary Lewis’ telephone call. In anticipation of a call, Member Applewhaite located the FLRA Rules regarding the time limits for processing an appeal from an A. L. J. decision in an unfair labor practice case. When Secretary Lewis telephoned and stated his concern that the case not be delayed, Member Applewhaite interrupted the Secretary to inform him that if he wished to obtain expedited handling of the case, he would have to comply with the FLRA Rules and file a written motion. Secretary Lewis stated that he was unaware that papers had to be filed and that he would contact his General Counsel immediately. The conversation ended without further discussion.
During the afternoon of August 13, the FAA filed a Motion to Modify Time Limits for Filing Exceptions, requesting that the time limit be reduced from the usual twenty-five days to seven days. On August 14, the FLRA General Counsel filed a similar motion. On August 17, PATCO filed an opposition to these motions and a motion to extend the time for filing exceptions to sixty days. On August 18, 1981, the FLRA Members considered the three pending motions, denied all three, and decided instead to reduce the usual twenty-five day period for filing exceptions to nineteen days.
3. Member Applewhaite’s Dinner with Albert Shanker25
Since 1974 Albert Shanker has been President of the American Federation of Teachers, a large public-sector labor union, and a member of the Executive Council of the AFL-CIO.26 Since 1964 Mr. Shanker has been President of the AFT’s New York City Local, the United Federation of Teachers. Before joining the FLRA, Member Applewhaite had been associated with the New York Public Employment Relations Board. Through their contacts in New York, Mr. Shanker and Member Applewhaite had become professional and social friends.
The Applewhaite/Shanker Dinner. During the week of September 20, 1981, Mr. Shanker was in Washington, D. C. on business. On September 21, Mr. Shanker made arrangements to have dinner with Member Applewhaite that evening. Although he did not inform Member Applewhaite of his intentions when he made the arrangements, Mr. Shanker candidly admitted that he wanted to have dinner with Member Applewhaite because he felt strongly about the PATCO case and wanted to communicate directly to Member Applewhaite his sentiments, previously expressed in public statements, that PATCO should not be severely punished for its strike. In particular, Mr. Shanker believed that revocation of PAT-CO’s exclusive recognition status would be an excessive punishment. After accepting the invitation, Member Applewhaite informed Member Frazier and Chairman Haughton that he was having dinner with Mr. Shanker.
Member Applewhaite and Mr. Shanker talked for about an hour and a half during their dinner on September 21. Most of the discussion concerned the preceding Saturday’s Solidarity Day Rally, an upcoming tuition tax credit referendum in the District of Columbia, and mutual friends from New York. Near the end of the dinner, however, the conversation turned to labor law matters relevant to the PATCO case. The two men discussed various approaches to public employee strikes in New York, Pennsylvania and the federal government. Mr. Shanker expressed his view that the punishment of a striking union should fit the crime and that revocation of certification as a punishment for an illegal strike was tantamount to “killing a union.” The record is clear that Mr. Shanker made no threats or promises to Member Applewhaite; likewise, the evidence also indicates that Member Applewhaite never revealed his position regarding the PATCO case.
Near the end of their conversation, Member Applewhaite commented that because the PATCO case was hotly contested, he would be viewed with disfavor by whichever side he voted against. Member Applewhaite also observed that he was concerned about his prospects for reappointment to the FLRA in July 1982. Mr. Shanker, in turn, responded that Member Applewhaite had no commitments from anyone and urged him to vote without regard to personal considerations. The dinner, concluded and the two men departed.
The FLRA Decisional Process. On the afternoon of September 21, before the Applewhaite/Shanker dinner, the FLRA Mem
After September 21, Member Applewhaite considered other remedies, short of revocation, to deal with the PATCO strike. For over two weeks Member Applewhaite sought to find common ground with Chairman Haughton. Those efforts to agree on an alternative solution failed and, on October 9, Member Applewhaite finally decided to vote with Member Frazier for revocation. (Member Applewhaite apparently was concerned that the FLRA have a majority favoring one remedy, rather than render three opinions favoring three different dispositions.) All three Members drafted their final opinions by October 19. The drafts were exchanged and responses inserted. With some polishing, but no substantive change of positions, the opinions issued on October 22, 1981.
The Members’ Responses to the Applewhaite/Shanker Dinner. While these negotiations within the Authority were going on, Member Frazier became concerned that Mr. Shanker might have influenced Member Applewhaite’s position in the case. On September 22, Member Frazier visited Member Applewhaite to inquire about his dinner with Mr. Shanker. Member Frazier understood Member Applewhaite to say that Shanker had said that if Member Applewhaite voted against PATCO, then Applewhaite would be unable to get work as an arbitrator when he left the FLRA. Member Frazier also understood Member Applewhaite to say that he was then leaning against voting for revocation. (A. L. J. Vittone found that Shanker had made no such threats during the dinner, and concluded that Member Frazier reached this conclusion based on some miscommunication or misunderstanding.)
On September 22 and again on September 28, Member Frazier advised Member Applewhaite to talk to Solicitor Freehling about his dinner with Mr. Shanker. Member Applewhaite did so on September 28, and they concluded that no promises of benefits or threats had occurred and, therefore, that no crime had been committed. Solicitor Freehling also advised Member Applewhaite of the FLRA Rules on ex parte contacts. Member Applewhaite then told Chairman Haughton that he had discussed the dinner meeting with Solicitor Freehling and that there were no problems.
Member Frazier later asked Solicitor Freehling if Member Applewhaite had discussed his dinner with Mr. Shanker. Solicitor Freehling told Member Frazier that they had talked and that Member Applewhaite had concluded that there were no problems involved. Despite these assurances, Member Frazier contacted his personal attorney. Sometime in early October, Member Frazier’s attorney contacted the FBI. The FBI interviewed Member Frazier on October 17 and then other FLRA Members and staff. FBI agents interviewed Member Applewhaite on October 22, the day the FLRA Decision issued. (Member Applewhaite was thus unaware of the FBI investigation until after he reached his final decision in the PATCO case.)
The A. L. J.’s Conclusions. A. L. J. Vittone concluded: “The Shanker-Applewhaite dinner had no effect on the ultimate decision of Mr. Applewhaite in the PATCO case. Member Applewhaite’s final decision in the PATCO case was substantially the same as the position he discussed at the September 21 meeting of the members.” Findings at 28, ¶ 51. Later in his recommended findings, A. L. J. Vittone commented:
It is clear that Mr. Shanker’s message to Mr. Applewhaite was that revocation of certification was a drastic remedy out ofPage 111proportion to the violation. However, as I stated in my findings, I do not believe tht [sic] the dinner had any effect on the final decision of the FLRA in the PATCO case. At the very most, the effect was transitory in nature, and occurred from September 21 to October 9.
Id. at 49.
B. The Parties’ Positions
Each of the FLRA Members argue that their individual contacts with persons outside of the Authority were not improper. In addition, each of the Members supports A. L. J. Vittone’s findings that the various contacts, their own and their colleagues’, had no effect on the ultimate decision of the PATCO case.27 Member Applewhaite alone disputes A. L. J. Vittone’s finding that his dinner with Mr. Shanker may have had a transitory effect on his consideration of the case. Mr. Shanker also argues that his dinner with Member Applewhaite was not inappropriate and that it had no effect on the decision. In addition to the individual Members and Mr. Shanker, the FLRA (represented by its Acting Solicitor) and the FAA agree with the finding of no effect on the decision in the case.
PATCO, amicus Skirlick, and amici McClure, Hough and Tierney are less sanguine about the implications of Judge Vittone’s findings. Each of them argue that the disclosed communications were improper and require remedial action. The. amici contend that, due to the ex parte contacts, the Authority had an irrational sense of urgency about the case. This, they argue, prejudiced their ability to participate in the unfair labor practice proceeding and to protect the interests of nonstriking controllers. PATCO contends that the contacts with Authority Members by General Counsel Gordon and Secretary Lewis require a remand with instructions that the FLRA General Counsel and the FAA be required to show cause why the complaint should not be dismissed.
Based on their agreement with A. L. J. Vittone’s finding of no effect on the ultimate outcome, the FLRA, the FAA, Chairman Haughton and Member Applewhaite all argue that no further action regarding ex parte contacts need be taken and that the court may now consider the PATCO decision on the merits. In his brief to this court, Member Frazier urged that the FLRA Decision be vacated and the case remanded to the Authority for proceedings anew. Member Frazier’s position was premised on the assumption that Member Applewhaite had acted pursuant to a personal bias, thereby denying the parties an impartial tribunal. Member Frazier therefore initially urged reconsideration with Member Applewhaite disqualified from participation. However, at the oral argument held before this court on April 13, 1982, counsel for Member Frazier conceded that, since a full hearing already had been held on the matter of ex parte communications, it was not essential that the case be remanded. Member Frazier thus now appears to argue that, so long as the sanctity of the administrative and judicial processes is preserved, the court may properly consider the PATCO decision on the merits.
C. Applicable Legal Standards
1. ' The Statutory Prohibition of Ex Parte Contacts and the FLRA Rules
The Civil Service Reform Act requires that FLRA unfair labor practice hearings, to the extent practicable, be conducted in accordance with the provisions of the Administrative Procedure Act. 5 U.S.C. § 7118(a)(6) (Supp. IV 1980). Since FLRA unfair labor practice hearings are formal adjudications within the meaning of the APA, see 5 U.S.C. § 551(7) (1976), section 557(d) governs ex parte communications. Id. § 557(d).
Section 557(d) was enacted by Congress as part of the Government in the Sunshine Act, Pub.L.No. 94-409, § 4(a), 90 Stat. 1241, 1246 (1976). The section prohibits ex parte communications “relevant to the merits of
Three features of the prohibition on ex parte communications in agency adjudications are particularly relevant to the contacts here at issue. First, by its terms, section 557(d) applies only to ex parte communications to or from an “interested person.” Congress did not intend, however, that the prohibition on ex parte communications would therefore have only a limited application. A House Report explained:
The term “interested person” is intended to be a wide, inclusive term covering any individual or other person with an interest in the agency proceeding that is greater than the general interest the public as a whole may have. The interest need not be monetary, nor need a person to [sic] be a party to, or intervenor in, the agency proceeding to come under this section. The term includes, but is not limited to, parties, competitors, public officials, and nonprofit or public interest organizations and associations with a special interest in the matter regulated. The term does not include a member of the public at large who makes a casual or general expression of opinion about a pending proceeding.
H.R.Rep.No. 880, Pt. I, 94th Cong., 2d Sess. 19-20 (1976), U.S.Code Cong. & Admin. News 1976, p. 2183, 2201, reprinted in Senate Comm, on Government Operations & House Comm, on Government Operations,
Second, the Government in the Sunshine Act defines an “ex parte communication” as “an oral or written communication not on the public record to which reasonable prior notice to all parties is not given, but . . . not including] requests for status reports on any matter or proceeding . . . . ” 5 U.S.C. § 551(4) (1976).29 Requests for status reports are thus allowed under the statute, even when directed to an agency decisionmaker rather than to another agency employee. See Raz Inland Navigation Co. v. ICC, 625 F.2d 258 (9th Cir. 1980). Nevertheless, the legislative history of the Act cautions:
A request for a status report or a background discussion may in effect amount to an indirect or subtle effort to influence the substantive outcome of the proceedings. The judgment will have to be made whether a particular communication could affect the agency’s decision on the merits. In doubtful cases the agency official should treat the communication as ex parte so as to protect the integrity of the decision making process.
S.Rep.No. 354, supra, at 37, Sunshine Act Sourcebook at 232. Accord, H.R.Rep.No. 880, Pt. I, supra, at 20-21, Sunshine Act Sourcebook at 531-32.
Third, and in direct contrast to status reports, section 557(d) explicitly prohibits communications “relevant to the merits of the proceeding.” The congressional reports state that the phrase should “be construed broadly and . . . include more than the phrase ‘fact in issue’ currently used in [section 554(d)(1) of] the Administrative Procedure Act.” S.Rep.No. 354, supra, at 36, Sunshine Act Sourcebook at 231; H.R. Rep.No. 880, Pt. I, supra, at 20, U.S.Code Cong. & Admin.News 1976, p. 2202, Sunshine Act Sourcebook at 531. While the phrase must be interpreted to effectuate the dual purposes of the Government in the Sunshine Act, i.e., of giving notice of improper contacts and of providing all interested parties an opportunity to respond to illegal communications, see S.Rep.No. 354, supra, at 37, Sunshine Act Sourcebook at 232, the scope of this provision is not unlimited. Congress explicitly noted that the statute does not prohibit procedural inquiries, see id. at 36, Sunshine Act Sourcebook at 231, or other communications “not relevant to the merits,” S.Rep.No. 1178, 94th Cong., 2d Sess. 29 (1976) (Conference Report), Sunshine Act Sourcebook at 811.
29. The exception for status reports is repeated in the FLRA Rules. 5 C.F.R. § 2414.6(b) (1981).
In sum, Congress sought to establish common-sense guidelines to govern ex parte contacts in administrative hearings, rather than rigidly defined and woodenly applied rules. The disclosure of ex parte communications serves two distinct interests. Disclosure is important in its own right to prevent the appearance of impropriety from secret communications in a proceeding that is required to be decided on the record. Disclosure is also important as an instrument of fair decisionmaking; only if a party knows the arguments presented to a decisionmaker can the party respond effectively and ensure that its position is fairly considered. When these interests of openness and opportunity for response are threatened by an ex parte communication, the communication must be disclosed. It matters not whether the communication comes from someone other than a formal party or if the communication is clothed in the guise of a procedural inquiry. If, however, the communication is truly not relevant to the merits of an adjudication and, therefore, does not threaten the interests of openness and effective response, disclosure is unnecessary. Congress did not intend to erect meaningless procedural barriers to ef
2. Remedies for Ex Parte Communications
Section 557(d) contains two possible administrative remedies for improper ex parte communications. The first is disclosure of the communication and its content. 5 U.S.C. § 557(d)(1)(C) (1976). The second requires the violating party to “show cause why his claim or interest in the proceeding should not be dismissed, denied, disregarded, or otherwise adversely affected on account of [the] violation.” Id. § 557(d)(1)(D); see also id. § 556(d). Congress did not intend, however, that an agency would require a party to “show cause” after every violation or that an agency would dismiss a party’s interest more than rarely. See S.Rep.No. 354, supra, at 37-39, Sunshine Act Sourcebook at 232-34. Indeed, the statutory language clearly states that a party’s interest in the proceeding may be adversely affected only “to the extent consistent with the interests of justice and the policy of the underlying statutes.” 5 U.S.C. § 557(d)(1)(D) (1976).30
The Government in the Sunshine Act contains no specific provisions for judicial remedy of improper ex parte communications. However, we may infer from approving citations in the House and Senate Reports that Congress did not intend to alter the existing case law regarding ex parte communications and the legal effect of such contacts on agency decisions. See S.Rep.No. 354, supra, at 3, 35, Sunshine Act Sourcebook at 198, 230; H.R.Rep.No. 880, Pt. I, supra, at 4, Sunshine Act Sourcebook at 515 (citing Jacksonville Broadcasting Corp. v. FCC, 348 F.2d 75 (D.C.Cir.), cert. denied, 382 U.S. 893, 86 S.Ct. 186, 15 L.Ed.2d 150 (1965), and Sangamon Valley Television Corp. v. FCC, 269 F.2d 221 (D.C.Cir.1959)).
Under the case law in this Circuit, improper ex parte communications, even when undisclosed during agency proceedings, do not necessarily void an agency decision. Rather, agency proceedings that have been blemished by ex parte communications have been held to be voidable. See, e.g., Home Box Office, Inc. v. FCC, 567 F.2d 9, 58 (D.C.Cir.), cert. denied, 434 U.S. 829, 98 S.Ct. 111, 54 L.Ed.2d 89 (1977); United Air Lines v. CAB, 309 F.2d 238, 240-41 (D.C.Cir.1962); WORZ, Inc. v. FCC, 268 F.2d 889, 890 (D.C.Cir.1959).31 In enforcing this standard, a court must consider whether, as a result of improper ex parte communications, the agency’s decisionmaking process was irrevocably tainted so as to make the ultimate judgment of the agency unfair, either to an innocent party or to the public interest that the agency was obliged to protect.32 In making this determination, a
D. Analysis of the Alleged Ex Parte Communications with FLRA Members
With the foregoing considerations in mind, we have analyzed A. L. J. Vittone’s findings thoroughly and given careful thought to the positions urged by the parties. As we noted earlier, the vast majority of the reported contacts between FLRA Members and persons outside the Authority are not troubling. They relate to inquiries about the expected date of issuance of the FLRA’s opinion,38 information from a third
After extensive review of the three troubling incidents that we describe in Part II.A. supra, we believe that they too provide insufficient reason to vacate the FLRA Decision or to remand this case for further proceedings before the Authority. The special evidentiary hearing before Judge Vittone was ordered by this court not because we assumed that the A. L. J. would find serious wrongs or improprieties, but because the allegations of misconduct were serious enough to require full exploration. Public officials are held to high standards of behavior, and only through a special inquiry could we clear the air of any doubt that the FLRA Decision in this case was not unfairly influenced.
After unavoidable time, effort and expense, both by the parties and by the individual FLRA Members, A. L. J. Vittone formulated his findings. Except as otherwise noted below, we accept them. We conclude that at least one and possibly two of the contacts documented by the A. L. J. probably infringed the statutory prohibitions on ex parte communications. The incidents reported by the A. L. J. also included some evident, albeit- unintended, indiscretions in a highly charged and widely publicized case. Nevertheless, we agree with A. L. J. Vittone that the ex parte contacts here at issue had no effect on the ultimate decision of the FLRA. Moreover, we conclude that the statutory infringements and other indiscretions are not so serious as to require us to vacate the FLRA Decision or to remand the case to the Authority. On the facts of this case, we believe that to vacate and remand would be a gesture of futility.
1. The Meeting Between Member Applewhaite and FLRA General Counsel Gordon
When General Counsel Gordon met with Member Applewhaite on August 10, the General Counsel’s office was prosecuting the unfair labor practice complaint against PATCO before Chief A. L. J. Fenton. Gen
The discussion relevant to the PATCO case arose only when Ms. Stern delivered a copy of her memorandum regarding decertification of striking unions to Member Applewhaite. Thus, the ex parte contact, such as it was, was entirely inadvertent.42 More important, the contents of the discussion were entirely innocuous. Neither the General Counsel nor Member Applewhaite expressed any view on the correct statutory interpretation, the General Counsel made no arguments to Member Applewhaite, and the facts of the PATCO case were not mentioned.
Some occasional and inadvertent contacts between the prosecuting and adjudicating arms of a small agency like the FLRA may be inevitable. While we cannot countenance any contacts or overlap in functions that threaten to bias administrative adjudications, accidental or passing references to a pending case do not per se deprive a party of a fair proceeding. See 5 U.S.C. § 554(d)(0) (1976); cf. FTC v. Cinderella Career & Finishing Schools, 404 F.2d 1308, 1315 (D.C.Cir.1968) (some mixing of adjudicatory and prosecutorial functions is not a denial of due process). Indeed, it is likely that the content of the brief discussion between Member Applewhaite, General Counsel Gordon and Ms. Stern was less relevant to the merits of the PATCO case than was the information conveyed to the FLRA Members by the General Counsel when he sought their approval to seek an injunction against the strike pursuant to 5 U.S.C. § 7123(d) (Supp. IV 1980). See 5 C.F.R. ch. XIV, app. B (1981); id. § 2414.-6(f).43 Yet, such discussions regarding the initiation of proceedings and the filing of charges violate neither the Administrative Procedure Act nor due process of law. Withrow v. Larkin, 421 U.S. 35, 56-57, 95 S.Ct. 1456, 1469, 43 L.Ed.2d 712 (1975).
In hindsight, it may have been preferable if Member Applewhaite had postponed even this general conversation with Ms. Stern or if General Counsel Gordon had temporarily excused himself from Member Applewhaite’s office.44 Nonetheless, .we do not believe that this contact tainted the proceeding or unfairly advantaged the General Counsel in the prosecution of the case. Thus, we conclude that the conversation at issue here, even though possibly indiscreet and undesirable, does not void the FLRA Decision in this case.
Transportation Secretary Lewis was undoubtedly an “interested person” within the meaning of section 557(d) and the FLRA Rules when he called Members Frazier and Applewhaite on August 13. Secretary Lewis’ call clearly would have been an improper ex parte communication if he had sought to discuss the merits of the PATCO case. The Secretary explicitly avoided the merits, however, and mentioned only his view on the possibility of settlement and his desire for a speedy decision. On this basis, Solicitor Freehling and Member Frazier concluded the call was not improper. See 5 C.F.R. § 2414.6(b), (d) (1981).
We are less certain that Secretary Lewis’ call was permissible. Although Secretary Lewis did not in fact discuss the merits of the case, even a procedural inquiry may be a subtle effort to influence an agency decision. See text at note 29 supra. We do not doubt that Member Frazier and Solicitor Freehling concluded in good faith that the communications were not improper, but it would have been preferable for them to heed Congress’ warning, to assume that close cases like these are improper, and to report them on the public record.
We need not decide, however, whether Secretary Lewis’ contacts were in fact improper. Even if they were, the contacts did not taint the proceedings or prejudice PAT-CO. Secretary Lewis’ central concern in his conversations with Member Frazier and Member Applewhaite was that the case be handled expeditiously.45 Member Applewhaite explicitly told Secretary Lewis that if he wanted the case handled more quickly than the normal course of FLRA business, then the FAA would have to file a written request. If, as A.L.J. Vittone found likely, Member Applewhaite’s comments led to the FAA’s Motion to Modify Time Limits, that was exactly the desired result. Once the FAA filed a motion, PATCO filed its own responsive motions, and the FLRA was able to decide the timing issue based on the pleadings before it.
We believe that the Authority did exactly that. Chairman Haughton was cognizant only of the motions that had been filed. Member Applewhaite had quickly terminated his conversation with Secretary Lewis, and Member Frazier’s conversation with Secretary Lewis was at most brief. During the Members’ hour-long consideration of the motions, they did not mention Secretary Lewis’ calls. In the end, the FLRA denied all of the motions and only reduced the time for filing exceptions from twenty-five days to nineteen days. In these circumstances, and given A.L.J. Vittone’s inability to find any effect of the calls on the Members’ decision, see Findings at 12, ¶ 35, we cannot find that the disposition of the motions was improperly influenced.
Finally, PATCO cannot claim that it was prejudiced. The failure of the Authority to notice Secretary Lewis’ calls on the public record did not deprive PATCO of an opportunity to comment: PATCO filed responsive motions. (Surely PATCO cannot argue that fairness requires two opportunities to respond rather than one.) Nor has PATCO
3. Member Applewhaite’s Dinner with Albert Shanker
Of course, the most troublesome ex parte communication in this case occurred during the September 21 dinner meeting between Member Applewhaite and American Federation of Teachers President Albert Shank-er — the “well-known labor leader” mentioned in Assistant Attorney General McGrath’s affidavit. See Professional Air Traffic Controllers Organization v. FLRA, 672 F.2d 109, 113-15 app. (D.C.Cir.1982). Because allegations arising from this dinner occasioned our order of an evidentiary hearing, A.L.J. Vittone and the participants in the hearing before him centered much of their attention on this incident. We, too, have carefully focused on the Applewhaite/Shanker dinner in our review of the ex parte contacts. We agree — as do all the parties before us — with A.L.J. Vittone’s finding that the dinner had no effect on the FLRA Decision in the case. After thorough consideration, we further conclude that the incident does not require a remand to the Authority.
At the outset, we are faced with the question whether Mr. Shanker was an “interested person” to the proceeding under section 557(d) and the FLRA Rules. Mr. Shanker argues that he was not. He suggests that his only connection with the unfair labor practice case was his membership on the Executive Council of the AFL-CIO which, unbeknownst to him, had participated as amicus curiae in the oral argument of the PATCO case before the FLRA. This relationship to the proceeding, Mr. Shanker contends, is too tenuous to qualify him as an “interested person” forbidden to make ex parte communications to the Authority Members.
As noted above, Congress did not intend such a narrow construction of the term “interested person.” See text after note 28 supra. The Senate Committee on Government Operations deleted a provision in the original bill that exempted ex parte communications involving persons who were neither parties, intervenors nor government officials. See S.Rep.No.354, 94th Cong., 1st Sess. 11 (1975), Sunshine Act Sourcebook at 206. The House and Senate Reports agreed that the term covers “any individual or other person with an interest in the agency proceeding that is greater than the general interest the public as a whole may have. The interest need not be monetary, nor need a person be a party to, or intervenor in, the agency proceeding .... ” Id. at 36, Sunshine Act Sourcebook at 231. Accord, H.R.Rep.No.880, Pt. I, 94th Cong., 2d Sess. 19 (1975), U.S.Code Cong. & Admin.News 1976, p. 2201, Sunshine Act Sourcebook at 530.
We believe that Mr. Shanker falls within the intended scope of the term “interested person.” Mr. Shanker was (and is) the President of a major public-sector labor union. As such, he has a special and well-known interest in the union movement and the developing law of labor relations in the public sector. The PATCO strike, of course, was the subject of extensive media coverage and public comment. Some union leaders undoubtedly felt that the hard line taken against PATCO by the Administration might have an adverse effect on other unions, both in the federal and in state and
Even if we were to adopt Mr. Shanker’s position that he was not an interested person, we are astonished at his claim that he did nothing wrong. Mr. Shanker frankly concedes that he “desired to have dinner with Member Applewhaite because he felt strongly about the PATCO case and he wished to communicate directly to Member Applewhaite sentiments he had previously expressed in public.” Shanker’s Brief at 8; see Findings at 15, ¶ 9. While we appreciate Mr. Shanker’s forthright admission, we must wonder whether it is a product of candor or a failure to comprehend that his conduct was improper. In case any doubt still lingers, we take the opportunity to make one thing clear: It is simply unacceptable behavior for any person directly to attempt to influence the decision of a judicial officer in a pending case outside of the formal, public proceedings. This is true for the general public, for “interested persons,” and for the formal parties to the case.48 This rule applies to administrative adjudications as well as to cases in Article III courts.49
We think it a mockery of justice to even suggest that judges or other decisionmakers may be properly approached on the merits of a case during the pendency of an adjudication. Administrative and judicial adjudications are viable only so long as the integrity of the decisionmaking processes remains inviolate. There would be no way to protect the sanctity of adjudicatory processes if we were to condone direct attempts to influence decisionmakers through ex parte contacts.
We do not hold, however, that Member Applewhaite committed an impropriety when he accepted Mr. Shanker’s dinner invitation. Member Applewhaite and Mr. Shanker were professional and social friends. We recognize, of course, that a judge “must have neighbors, friends and acquaintances, business and social relations, and be a part of his day and generation.” Pennsylvania v. Local Union 542, International Union of Operating Engineers, 388 F.Supp. 155, 159 (E.D.Pa.1974) (quoting Ex Parte N. K. Fairbank Co., 194 F. 978, 989 (M.D.Ala.1912)). Similarly, Member Applewhaite was not required to renounce his friendships, either personal or professional,
The majority of the dinner conversation was unrelated to the PATCO case. Only in the last fifteen minutes of the dinner did the discussion become relevant to the PAT-CO dispute, apparently when Mr. Shanker raised the topic of local approaches to public employee strikes in New York and Pennsylvania. See Findings at 16-17, ¶¶ 11-14. At this point, and as the conversation turned to the discipline appropriate for a striking union like PATCO, Member Applewhaite should have promptly terminated the discussion. Had Mr. Shanker persisted in discussing his views of the PATCO case, Member Applewhaite should have informed him in no uncertain terms that such behavior was inappropriate. Unfortunately, he did not do so.
This indiscretion, this failure to steer the conversation away from the PATCO case, eventually led to the special evidentiary hearing in this case. The hearing has filled in much of the “factual picture” left incom-. píete by the McGrath affidavit and the FBI reports. See Professional Air Traffic Controllers Organization v. FLRA, 672 F.2d 109, 113 (D.C.Cir.1982) (per curiam). We now know that Mr. Shanker did not in any way threaten Member Applewhaite during their dinner. Mr. Shanker did not tell Member Applewhaite that if he voted to decertify PATCO he would be unable to get cases as an arbitrator if and when he left the FLRA. Mr. Shanker did not say that he was speaking “for top AFL-CIO officials” or that Member Applewhaite would need labor support to secure reappointment. Moreover, Mr. Shanker did not make any promises of any kind to Member Applewhaite, and Member Applewhaite did not reveal how he intended to vote in the PAT-CO case. Findings at 17-18, ¶¶ 16-17.51
In these circumstances, we do not believe that it is necessary to vacate the FLRA Decision and remand the case. First, while Mr. Shanker’s purpose and conduct were improper, and while Member Applewhaite should not have entertained Mr. Shanker’s views on the desirability of decertifying a striking union, no threats or promises were made. Though plainly inappropriate, the ex parte communication was limited to a ten or fifteen minute discussion, often couched in general terms, of the appropriate discipline for a striking public employee union. This behavior falls short of the “corrupt tampering with the adjudicatory process” found by this court in WKAT, Inc. v. FCC, 296 F.2d 375, 383 (D.C.Cir.), cert. denied, 368 U.S. 841, 82 S.Ct. 63, 7 L.Ed.2d 40 (1961).
Second, A. L. J. Vittone found that the Applewhaite/Shanker dinner had no effect on the ultimate decision of Member Applewhaite or of the FLRA as a whole in the PATCO case. None of the parties have disputed this finding. Indeed, even Member Frazier, who initiated the FBI investigation of the dinner, testified that “in his opinion the Shanker-Applewhaite dinner did not have an effect on Member Applewhaite ultimate decision in the PATCO case.” Findings at 28, ¶ 50.52
Finally, we cannot say that the parties were unfairly deprived of an opportunity to refute the arguments propounded in the ex parte communication. PATCO has not identified any manner in which it was denied a reasonable opportunity to respond or any new arguments which it would present to the FLRA if given an opportunity.53 Understandably, the FAA does not complain that its interests were injured. Moreover, Mr. Shanker’s arguments regarding the severity of decertification paralleled PATCO’s own arguments before the FLRA. The FAA and the FLRA General Counsel had a full opportunity to refute these arguments before the Authority.
We in no way condone Mr. Shanker’s behavior in this case. Nor do we approve Member Applewhaite’s failure to avoid discussion of a case pending before the Authority. Nevertheless, we' do not believe that the Applewhaite/Shanker dinner, as
E. Member Applewhaite’s Alleged “Personal Interest” in the PATCO Case
As we have noted, the special evidentiary hearing ordered in this case has filled in much of the factual picture left incomplete by the McGrath affidavit and the FBI reports. One feature of the picture revealed by the inquiry is the contents of Member Applewhaite’s and Mr. Shanker’s dinner conversation. A. L. J. Yittone found that near the end of their conversation Member Applewhaite observed that “he was concerned about his prospects for reappointment in July 1982.” He also commented that, “because the PATCO case was hotly contested, he would be viewed with disfavor by whichever side he voted against.” In response, “Mr. Shanker urged Applewhaite to vote without regard to personal considerations.” Findings at 17, ¶ 15.
Based essentially on this brief conversation, Member Frazier now proposes that Member Applewhaite had a personal interest in the outcome of the PATCO case. Member Frazier contends that the record shows that Member Applewhaite was concerned that if he voted in favor of PATCO, he would not be reappointed by the Administration, and that if he voted against PAT-CO (and was not reappointed), his career in labor law would suffer from organized labor’s reaction to his vote. Because of these alleged personal interests in the outcome, Member Frazier argues that Member Applewhaite was disqualified from hearing the PATCO case.
We do not read as much into this conversation as does Member Frazier. It is not surprising that an agency member appointed by the President might be concerned about his prospects for reappointment. We are not so naive as to believe that such thoughts do not cross a member’s mind.54 Nor would we assume that an Authority Member would believe that his decisions are irrelevant to the President’s determination whether to reappoint him. Similarly, it is hardly surprising for Member Applewhaite to recognize that his decision in a hotly contested case would not receive universal approbation. The appropriate question here is not whether Member Applewhaite recognized that his decision might not be universally approved; rather, the correct inquiry is whether Member Applewhaite’s concerns rendered him incapable of reaching a fair decision on the merits of the case before him.55
The cited brief conversation between Member Applewhaite and Mr. Shanker does not demonstrate an inability to fairly decide the case. Courts have long recognized “a presumption of honesty and integrity in those serving as adjudicators.” Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 1464, 43 L.Ed.2d 712 (1975). Accord, NLRB v. Donnelly Garment Co., 330 U.S. 219, 229, 67 S.Ct. 756, 761, 91 L.Ed. 854 (1947); United States v. Morgan, 313 U.S. 409, 421, 61 S.Ct. 999, 1004, 85 L.Ed. 1429 (1941). Absent a strong showing to the contrary, an agency adjudicator is presumed to act in good faith and to be capable of ignoring considerations not on the record. See, e.g., FTC v. Cement Institute, 333 U.S. 683, 700-03, 68 S.Ct. 793, 803-04, 92 L.Ed. 1010 (1948); Lead Industries Association v. EPA, 647 F.2d 1130, 1178 (D.C.Cir.), cert. denied, 449 U.S. 1042, 101 S.Ct. 621, 66 L.Ed.2d 503 (1980).
Indeed, any doubts we might otherwise have about the source of Member Applewhaite’s ultimate decision in this case have been dispelled by the evidentiary hearing and the A. L. J.’s findings. Member Applewhaite did believe that he would be viewed with disfavor by whichever side he voted against.57 But Member Applewhaite explained that this was no different from any arbitration case in which he had ruled — one party wins and the other loses. He testified: “I have always faced that problem[,] so I just have to call it like it is and ... take my chances.” Tr. 744. We have no reason to doubt this testimony. Furthermore, A. L. J. Vittone’s findings reveal that the PATCO case was never mentioned in Member Applewhaite’s contacts with Administration officials. Findings at 32, ¶¶ 4-6; at 34-35, ¶¶ 8-10, 12. A. L. J. Vittone found that Member Applewhaite never “held out his vote in PATCO as deserving consideration by the Administration with respect to his possible reappointment,” id. at 35, ¶ 13, and that his conversations with Administration officials “did not affect in any manner Applewhaite’s decision in the PATCO case,” id. at 35, ¶ 14. In these circumstances, Member Frazier’s concerns about Member Applewhaite’s bias are simply inapposite.58 Thus, we believe that the evidentiary hearing has refuted “even the probability of unfairness.” In re Murchison,, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955). A remand on the basis of personal interest is therefore unnecessary.59
F. Conclusion
Our review of the record of the special evidentiary hearing, and of the findings of Judge Vittone, leads us to a simple conclusion: There is no reason to vacate the FLRA decision or to remand the case to the FLRA for any further proceedings. We have not found any ex parte communications that irrevocably tainted the Authority’s decision. Nor have the proceedings effected procedural unfairness on any of the parties.
This is not to say that the Authority’s handling of the case has been a paragon of administrative procedure. It certainly has not. Because “the suggestion of behind-the-scenes machinations [was] intolerable,” Professional Air Traffic Controllers Organization v. FLRA, 672 F.2d 109, 113 (D.C.Cir.
Of course, we recognize that it would be possible to vacate the FLRA Decision and to remand for reconsideration. Although that might produce a new record free from procedural defects, it would serve no other useful purpose. We, and all the parties, know the positions of each Authority Member. We know also that those positions are not the misbegotten offspring of improper influences. All of the Members have testified that they would reach identical conclusions upon reconsideration, and we have no reason to doubt their sworn testimony.
Moreover, the facts of this case are free from any arguable taint. The extensive inquiry revealed no improper attempts to influence Chief A. L. J. Fenton or his fact-finding. The FLRA did not alter his factual conclusions. The principal issues decided by the Authority, therefore, are legal. We, of course, will independently review those legal issues. Any arguable taint that may remain will therefore be cured. See, e.g., Gulf Oil Corp. v. FPC, 563 F.2d 588, 612 (3d Cir. 1977) (“Judicial review is fully capable of correcting bias as to legal questions”), cert. denied, 434 U.S. 1062, 98 S.Ct. 1235, 55 L.Ed.2d 762 (1978); Marquette Cement Manufacturing Co. v. FTC, 147 F.2d 589, 594 (7th Cir. 1945), aff’d sub nom. FTC v. Cement Institute, 333 U.S. 683, 68 S.Ct. 793, 92 L.Ed. 1010 (1948).
We have already extended the appellate consideration of an important case. The criminal investigation by the FBI and the special procedures that we have employed should put to rest any doubts about the legitimacy of the Authority decision. Because remand would therefore be a futile gesture, we proceed to the consideration of the merits.
III. PATCO’S VIOLATION OF THE BAN ON FEDERAL EMPLOYEE STRIKES
On the merits of this case, PATCO presents the court with two questions for review. The first question, which is addressed in this Part III., is whether the FLRA’s finding that PATCO called, participated in, and condoned a strike is supported by substantial evidence. The second question, which is addressed infra in Part IV., is whether the FLRA properly exercised its discretion under the Act in revoking the exclusive recognition status of PATCO.
A. The Scope of Review
Section 7123(c) of the Civil Service Reform Act declares that “[t]he findings of the Authority with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive.” 5 U.S.C. § 7123(c) (Supp. IV 1980). This language is identical to that governing judicial review of the decisions of the National Labor Relations Board, see 29 U.S.C. § 160(e) (1976), and Congress clearly intended the scope of review of FLRA factual findings to be identical to that of NLRB findings.60 Thus, although this is one of the first occasions that this court has had to apply the substantial evidence rule in connection with disputed findings in an unfair labor practice hearing before the FLRA, the scope of our review is well-settled. See, e.g., Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); UAW v. NLRB, 392 F.2d 801, 805 (D.C.Cir.1967), cert. denied, 392 U.S. 906, 88 S.Ct. 2058, 20 L.Ed.2d 1364 (1968). The judicial function is merely to review the substantiality of the evidence underlying the agency decision, not to “displace the [agency’s] choice between two fairly conflicting views.” That test of substantiality
B. Violation of Section 7116(b)(7)(A)
In this case it fully appears that the record before the FLRA provided a rational justification for its finding that PATCO “call[ed], or participate^] in, a strike,” an unfair labor practice prohibited by 5 U.S.C. § 7116(b)(7)(A) (Supp. IV 1980).61 As described above, the record contained evidence of simultaneous picketing by striking air traffic controllers at five separate FAA facilities. In each case the picketers carried signs indicating that they were on strike and that they belonged to a particular PAT-CO Local. In several cases FAA officials, viewing photographs taken during the strike, identified individual picketers as air traffic controllers (including certain PAT-CO Local officers); many of the persons identified were controllers who were scheduled for work at the times when the photographs were taken. In addition, FAA records also established massive absenteeism on August 3 and thereafter by air traffic controllers nationwide.
PATCO objects to the adequacy of this evidence, contending that it establishes only that strikes were conducted by certain PATCO Local unions, while the Respondent before the FLRA was the PATCO National union. Whatever weight PATCO’s contention' might otherwise have is seriously diminished by the evidence of the simultaneous picketing at numerous work locations and by the evidence of the nationwide scope of absenteeism by controllers on and after August 3. However the evidence is interpreted, it certainly cannot be characterized as “a wildcat strike on the part of one of [PATCO’s] Locals.” PATCO Reply Brief at 12. The weight of PATCO’s contention is even further diminished by the fact that the PATCO National union was the exclusive bargaining agent for all bargaining unit members. For several months prior to August 3, the PATCO National union, and not the Locals, had engaged in collective bargaining with the FAA for a national agreement. The FLRA was entitled to draw a reasonable inference from the national bargaining unit and from the nationwide picketing and absenteeism — viz., that the PATCO National union, and not merely a collection of PATCO Locals, was on strike.62
Moreover, the FAA introduced into evidence two videotapes of PATCO National union President Robert Poli making statements regarding the strike at news conferences.63 In the first videotape, Poli is recorded as announcing that the strike would begin on the morning of August 3 if no satisfactory settlement proposal was reached and if tallying of a strike vote revealed the necessary support. PATCO
In these circumstances — simultaneous and widespread absenteeism by union members, picketing announcing various union locals as being on strike, and accurate statements by the union president that a strike would take place under certain conditions and then that that strike would continue— we have no difficulty concluding that the FLRA’s finding was supported by substantial evidence on the record as a whole. Our conclusion is made more certain by the total absence of record evidence offered by PAT-CO in refutation. Thus, we affirm the FLRA’s finding that PATCO “call[ed], or participate^] in, a strike” in violation of 5 U.S.C. § 7116(b)(7)(A) (Supp. IV 1980).
C. Violation of Section 7116(b)(7)(B)
PATCO also objects to the conclusion of the FLRA that PATCO committed a separate unfair practice of condoning a strike “by failing to take action to prevent or stop such activity,” a violation of 5 U.S.C. § 7116(b)(7)(B) (Supp. IV 1980).64 After finding that the evidence presented was sufficient to establish the prima facie existence of a strike, Chief A.L.J. Fenton ruled that the burden shifted to PATCO to produce evidence showing that it had taken some action to prevent or to stop the strike.65 PATCO offered no such evidence.
PATCO does not now object to the legal principle followed by Judge Fenton regarding the shifting of the burden; instead, PATCO contends that there was insufficient evidence to shift the burden in this case. PATCO argues that the FLRA General Counsel failed to prove that the PAT-CO National union was aware of the strike at any time during which it could have taken action to stop it; hence, it argues that the General Counsel failed to establish that National union had any obligation under section 7116(b)(7)(B) to attempt to stop the strike.66
Given our affirmance of the unfair labor practice finding under section 7116(b)(7)(A), it necessarily follows that the FLRA could
IV. REVOCATION OF PATCO’S EXCLUSIVE RECOGNITION STATUS
Having determined that the FLRA properly found PATCO in violation of the no-strike provisions of the Civil Service Reform Act, we turn to the second question presented for our review: whether the FLRA properly exercised its discretion under the Act to revoke the exclusive recognition status of PATCO. This inquiry requires us to ascertain: (1) what degree of discretion Congress granted to the FLRA when it enacted section 7120(f); (2) whether the FLRA’s exercise of its discretion in this case was proper; and (3) whether the FLRA improperly excluded evidence in this case that was relevant to the exercise of its discretion. We address these issues in order.
A. The FLRA’s Discretion Under Section 7120(f)
This case presents the first occasion for review of the FLRA’s revocation of a union’s exclusive recognition status pursuant to section 7120(f). Accordingly, we discuss in some detail the scope of the FLRA’s discretion under that section. The scope of the FLRA’s discretion was the source of some disagreement within the Authority;68 that disagreement has been renewed before this court.69 Because the issue is not subject to a ready resolution, we must analyze
1. The Statutory Basis of the FLRA’s Revocation Power
Of course, the starting point for the interpretation of any statute is the language Congress employed to express its meaning. E.g., Ernst & Ernst v. Hochfelder, 425 U.S. 185, 197, 96 S.Ct. 1375, 1382, 47 L.Ed.2d 668 (1976); Department of Defense v. FLRA, 659 F.2d 1140, 1151 (D.C.Cir.1981), cert. denied, 455 U.S. 945, 102 S.Ct. 1443, 71 L.Ed.2d 658 (1982). Section 7120(f) states:
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.
5 U.S.C. § 7120(f) (Supp. IV 1980). The language of this section clearly requires the FLRA to take some disciplinary action when it finds that a union has violated section 7116(b)(7). Section 7120(f)(2) just as clearly announces that the FLRA has some discretion to revoke or not to revoke the exclusive recognition status of a union that, like PATCO, is found to have committed an unfair labor practice by calling, participating in or condoning a strike against the federal government.
The inference that the FLRA has some degree of discretion in the enforcement of section 7120(f) is supported by another section of the Act that generally deals with remedies for unfair labor practices, of which union strikes are only a single example. This provision, found in section 7118(a)(7), grants the FLRA the power to issue an order requiring a party found to be guilty of an unfair labor practice (1) to cease and desist from the practice, (2) to renegotiate a collective bargaining agreement, (3) to reinstate an employee with backpay, or (4) to take “such other action as will carry out the purpose of this chapter.” 5 U.S.C. § 7118(a)(7) (Supp. IV 1980).70
At the same time, yet another provision in the same Act, found in section 7103(a)(4), suggests that the FLRA is without discretion in its choice of remedy once it finds that a union has violated the Act’s no-strike provisions. In defining “labor organization” under the Act, section 7103(a)(4) states that:
(4) “labor organization” means an organization composed in whole or in part of employees, in which employees participate and pay dues, and which has as 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 againstPage 130the Government or any agency thereof or imposes a duty or obligation to conduct, assist, or participate in such a strike ....
5 U.S.C. § 7103(a)(4)(D) (Supp. IV 1980).71 Broadly construed, this definitional section at least implies that a labor organization found to have violated the Act’s no-strike proscriptions may no longer be treated as a “labor organization” under the Act, and hence may not be accorded exclusive recognition status.
We hesitate to read so much into a definitional section of a statute, particularly where, as here, that broad reading would contradict a separate section of the same statute that describes the power given to an agency to determine the substantive rights of parties before it.72 Nevertheless, section 7103(a)(4)(D) arguably clouds the interpretation of section 7120(f). Moreover, even without reference to the statutory definition of a labor organization, section 7120(f) does not plainly declare the extent of the Authority’s discretion to revoke a union’s exclusive recognition status. Therefore, because the plain words of the statute cannot resolve our inquiry, we must turn to the statute’s legislative history for further guidance as to Congress’ meaning.
2. The Legislative History of the FLRA’s Revocation Power
Prior to the enactment of Title VII of the Civil Service Reform Act, labor-management relations in the federal sector were governed by Executive Order 11,491. Exec. Order No. 11,491, 34 Fed.Reg. 17,605 (1969), reprinted as amended in 5 U.S.C. § 7301 note (1976 & Supp. I 1977). Executive Order 11,491 contained no provision comparable to the revocation provision of the Civil Service Reform Act. The Executive Order did, however, declare strikes by federal sector unions to be unfair labor practices, id. § 19(b)(4), and excluded a union that engaged in a strike from the Order’s definition of a labor organization, id. § 2(e)(2).73
The inclusion in Title VII of the Civil Service Reform Act of a provision like that found in the predecessor Executive Order, excluding a striking union from the definition of a labor organization, stemmed primarily from an amendment offered on the floor of the House of Representatives. The addition of a section providing for the revocation of a striking union’s exclusive recognition status, however, resulted from an amendment offered on the floor of the Senate. In order to more fully understand Congress’ intent in enacting sections 7103(a)(4)(D) and 7120(f) of the Act, we must examine these passages of the legislative history and the Conference Report on the final bill.
The vehicle for enactment of Title VII of the Civil Service Reform Act in the House of Representatives was an amendment offered by Congressman Udall as a substitute
Mr. FORD of Michigan....
Mr. Chairman, I would like to ask the gentleman this question: It is [sic] the understanding of the gentleman 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 should be applied. It will not happen automatically.
Id. at 29,194, Legislative History at 947 (emphasis added). Following this brief exchange, the Erlenborn amendment to the Udall substitute was agreed to by voice vote. Subsequently, the House of Representatives adopted the Udall substitute as the House version of Title VII. Id. at 29,-202-03, 29,220-21, Legislative History at 962-63, 964-66.
Thus, as initially passed by the House, Title VII of the Civil Service Reform Act did not provide for the revocation of the exclusive recognition status of a union that struck against the government, but did exclude striking unions from the definition of the term “labor organization.” As the sponsor of that language made clear on the House floor, however, the definitional exclusion was intended to “leave the discretion in the FLRA” whether or not to apply the exclusion and thereby' remove a union from the protections of the statute. No expression of the scope of the FLRA’s discretion or guidance for its application was offered.
Before the House of Representatives adopted its version of Title VII of the Civil Service Reform Act, the Senate completed action on the bill reported by the Senate Committee on Governmental Affairs, S. 2640, 95th Cong., 2d Sess. (1978), reported in S.Rep.No.969, 95th Cong., 2d Sess. 271-320 (1978), Legislative History at 499-548. The Senate Committee bill closely resembled Executive Order 11,491,75 and thus excluded striking unions from the definition of labor organizations, id. § 7202(a)(3)(B), S.Rep.No. 969, supra, at 273-74, Legislative History at 501-02.76 However, like the original House bill, the Senate bill did not explicitly pro
During Senate debate on the bill, Senator Hatch offered an amendment that, among other things, added section 7217(e) to the bill. That section, the predecessor to section 7120(f) of the Civil Service Reform Act, stated:
Any labor organization which by omission or commission has willfully and intentionally violated section 7216(b)(4)(B)77 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.
S. 2640, 95th Cong., 2d Sess. § 7217(e) (1978), Legislative History at 588 (version passed by the Senate). Debate between Senator Hatch and Senators Javits and Metzenbaum made clear that the only decisionmaking authority granted to the FLRA under the proposed section was the power to decide whether or not a charged union had committed an unfair labor practice by striking or illegally picketing, or condoning such action, against the federal government. If that decision was made contrary to the union, revocation of the union’s exclusive recognition status was to be mandatory. See 124 Cong.Rec. 27,579-80, 27,584-85 (1978), Legislative History at 1021-22, 1028-30 (debate on Hatch amendment). The Senate adopted the Hatch amendment, id. at 27,588, Legislative History at 1035, and ultimately passed its version of the Civil Service Reform Act, id. at 27,593, Legislative History at 1038.
Thus, as initially passed by the Senate, Title VII of the Civil Service Reform Act included a section that explicitly provided for the revocation of the exclusive recognition status of a union that struck against the government. Revocation pursuant to the section was not discretionary, but was mandatory whenever the FLRA found that a union had committed an unfair labor practice by striking against the government, by picketing an agency and interfering with agency operations, or by condoning either forbidden picketing or work stoppage.
The House and Senate conferees settled upon a bill that, at least with respect to Title VII, closely tracked the House version. See H.R.Rep.No.1717, 95th Cong., 2d Sess. 152-59 (1978) (Conference Report), Legislative History at 820-27; 124 Cong.Rec. 38,-713 (1978), Legislative History at 990 (statement of Rep. Ford). The houses were not in conflict over the language excluding striking unions from the definition of labor organizations, which was identical in both bills, and the conference did not alter that provision. The conferees did, however, make significant liberalizing changes in section 7217(e) of the Senate bill. The conferees eliminated picketing as a possible basis for its application, thereby limiting its reach to “any strike, work stoppage, or slow-down.” More important for our present purposes, the conferees made revocation of exclusive recognition status discretionary with the Federal Labor Relations Authority. See 5 U.S.C. § 7120(f) (Supp. IV 1980). '
The Conference Report devoted only a single paragraph to discussion of section 7217(e) from the Senate bill and its transformation into the final section 7120(f). It stated:
The conference report adopts the Senate wording with an amendment. As agreed to by the conferees the provision will not apply to instances where thePage 133organization 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 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.1717, 95th Cong., 2d Sess. 156 (1978), Legislative History at 824. Both houses passed the conference version of the Civil Service Reform Act after only brief debates which did not touch upon section 7120(f). See 124 Cong.Rec. 33,388-90 (1978), Legislative History at 1039-41 (Senate passage); id. at 34,098-105 (1978), Legislative History at 985-89 (House passage).
As we read this statement from the Conference Report and consider as well the language and history of the Civil Service Reform Act, we conclude that Congress intended to grant the Federal Labor Relations Authority discretion to determine the appropriate disciplinary action for unions that commit unfair labor practices in violation of section 7116(b)(7). There are several important considerations that militate in favor of this conclusion. First, the Conference Report states that “disciplinary action other than decertification” may be appropriate in “instances, such as a wildcat strike.” By referring to “instances” and citing a wildcat strike as but a single example, the conferees apparently did not intend that example to be the only instance in which revocation would not follow. Had Congress intended wildcat strikes to be the only type of strike allowing a less severe penalty, the Conference Report and the section itself could have expressly so stated. They do not.
Second, if disciplinary action short of revocation applied only to wildcat strikes, the discretion expressly granted in subsection 7120(f)(2) would rarely, if ever, be exercised. If a strike or work slowdown was a wildcat action, then the union would not be in violation of section 7116(b)(7)(A) because, by definition, it had not called or participated in the strike. Further, if the union attempted to end the wildcat strike, then it would not be guilty of “failing to take action to prevent or stop” the strike and hence would not be in violation of section 71Í6(b)(7)(B). In that case, no discipline could be taken against the union, since the union would have committed no unfair labor practice.78 Thus, providing for disciplinary measures short of revocation only in the case of wildcat strikes would often be meaningless. Courts, of course, are reluctant to adopt an interpretation of a statute that makes a portion superfluous. See, e.g., D. Ginsberg & Sons v. Popkin, 285 U.S. 204, 208, 52 S.Ct. 322, 323, 76 L.Ed. 521 (1932); Motor & Equipment Manufacturers Association v. EPA, 627 F.2d 1095, 1107-08 (D.C.Cir.1979), cert. denied, 446 U.S. 952, 100 S.Ct. 2917, 64 L.Ed.2d 808 (1980). We, too, are loathe to embrace such a construction and, therefore, do not read the Conference Report to limit the Authority’s discretion only to eases of wildcat strikes.
Third, an interpretation of section 7120(f) limiting the Authority’s discretion to an inquiry into whether the union made efforts to prevent or stop the strike must also be rejected. The final sentence of the quoted paragraph of the Conference Report clearly allows the Authority to consider this factor, but the sentence is phrased in permissive (i.e., “may take into account”) terms. Moreover, nothing in the sentence suggests that this factor, while likely to be highly relevant in many cases, must be the Authority’s only concern. Indeed, the-structure of section 7120(f) suggests just the opposite. Were “efforts to prevent or stop the illegal activity” the only relevant factor, Congress could have explicitly made revocation turn upon whether a union had
Finally, we note that our interpretation of the scope of the FLRA’s discretion under section 7120(f) is wholly consistent with the other sections of the Act viewed in light of the legislative history. The general remedial authority of the FLRA under section 7118(a)(7) includes the power to order “such ... action as will carry out the purpose of this chapter.” 5 U.S.C. § 7118(a)(7)(D) (Supp. IV 1980). The Supreme Court has interpreted similar language in the National Labor Relations Act, 29 U.S.C. § 160(c) (1976), as granting the National Labor Relations Board broad remedial discretion in effectuating the purposes of that Act. See, e.g., Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 215-16, 85 S.Ct. 398, 405, 13 L.Ed.2d 233 (1964); Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194, 61 S.Ct. 845, 852, 85 L.Ed. 1271 (1941); accord, United Steelworkers of America v. NLRB, 646 F.2d 616, 629-30 (D.C.Cir.1981). The legislative history of the Civil Service Reform Act strongly suggests that Congress intended to grant similar discretion to the FLRA to remedy unfair labor practices, including union strikes, in the federal sector. See, e.g., H.R.Rep.No.1403, 95th Cong., 2d Sess. 53 (1978), Legislative History at 699; 124 Cong.Rec. 38,714 (1978), Legislative History at 992-93 (statement of Rep. Ford).79
The legislative history also reveals that the discretion granted to the FLRA in section 7120(f) is not inconsistent with the exclusion of unions that participate in strikes from the definition of “labor organization” in section 7103(a)(4)(D). The brief House debate on the Erlenborn amendment — the only debate on or legislative elucidation of this subsection — clearly announces that the FLRA is vested with discretion in its application. See 124 Cong. Rec. 29,194 (1978), Legislative History at 946-47 (quoted at page 71 supra). Therefore, contrary to first impressions from reading the definitional section, section 7103(a)(4)(D) reinforces, rather than detracts from, the conclusion that section 7120(f) vests the FLRA with discretion.
Thus, we conclude that section 7120(f) entrusts the Federal Labor Relations Authority with extensive authority to remedy illegal strikes, work stoppages and slowdowns by federal employee unions. The section clearly permits the FLRA to employ the extreme measure of revoking a union’s exclusive recognition status — a remedy unknown to private sector labor law — if the union commits or condones any of these unfair labor practices. The Senate and House conferees’ rejection of the Senate’s section 7217(e), however, establishes that revocation is not intended to be mandatory. Further, we reject an interpretation of the Conference Report that would limit the FLRA’s inquiry to a single issue or its discretion to a single type of violation. Rather, we hold that the FLRA has discretion under section 7120(f) to choose an appropriate remedy for any given violation of section 7116(b)(7) of the Civil Service Reform Act.80
We have concluded that the FLRA has substantial discretion under section 7120(f) to decide whether or not to revoke the exclusive recognition status of a union found guilty by the FLRA of striking or condoning a strike against the government. A concomitant of this conclusion is that the courts have only a limited role in reviewing the FLRA’s exercise of its remedial discretion. Section 7123(c) of the Civil Service Reform Act, 5 U.S.C. § 7123(c) (Supp. IV 1980), directs the court to review the Authority’s orders in accordance with section 10(e) of the Administrative Procedure Act, 5 U.S.C. § 706 (1976). For our present purposes, therefore, we must determine whether the FLRA’s revocation of PATCO’s exclusive recognition status was “arbitrary, capricious, [or] an abuse of discretion.” Id. § 706(2)(A). Under this standard, our review is highly deferential and we need satisfy ourselves only that “the agency has exercised a reasoned discretion, with reasons that do not deviate from or ignore the ascertainable legislative intent.” Greater Boston Television Corp. v. FCC, 444 F.2d 841, 850 (D.C.Cir.1970) (footnote omitted), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971); see Ethyl Corp. v. EPA, 541 F.2d 1, 33-37 (D.C.Cir.) (en banc), cert. denied, 426 U.S. 941, 96 S.Ct. 2663, 49 L.Ed.2d 394 (1976). As with judicial review of remedial orders of the NLRB, we will uphold the remedial orders of the FLRA “unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act.” Virginia Electric & Power Co. v. NLRB, 319 U.S. 533, 540, 63 S.Ct. 1214, 1218, 87 L.Ed. 1568 (1943).
We have little trouble deciding that the FLRA did not abuse its discretion in this case. First, the FLRA could take official notice that PATCO has repeatedly violated legal prohibitions against striking and other job actions. In 1970, PATCO called a “sickout” of the air traffic controllers subject to its exclusive representation. “Extensive disruptions in air service resulted as approximately one quarter of the nation’s air controllers reported in sick each day between March 24 and April 14 . . . . ” Miller v. Bond, 641 F.2d 997, 999 (D.C.Cir.1981) (per curiam).81 In 1978, PATCO threatened a nationwide air traffic slowdown. Based on a stipulated record, the union was held in contempt for its actions. Air Transport Association v. Professional Air Traffic Controllers Organization, 453 F.Supp. 1287 (E.D.N.Y.), aff’d mem., 594 F.2d 851 (2d Cir.1978), cert. denied, 441 U.S. 944, 99 S.Ct. 2163, 60 L.Ed.2d 1046 (1979). In 1980, PATCO controllers engaged in a work slowdown at Chicago’s O’Hare Airport. United States v. Professional Air Traffic Controllers Organization, 653 F.2d 1134, 1136 (7th Cir.), cert. denied, 454 U.S. 1083, 102 S.Ct. 639, 70 L.Ed.2d 617 (1981). In August 1981, PATCO called the nationwide strike that gives rise to the present action. See text at notes 4-7 supra.
Third, after PATCO struck on August 3, 1981, additional restraining orders and injunctions directed only at this strike issued. See notes 5-6 supra. PATCO openly defied these injunctions as well.
Finally, PATCO’s actions before and after August 3, 1981, can only be characterized as defiant. The union threatened its strike, then willfully and intentionally called and participated in it. After the strike commenced, PATCO made no attempt to end it; indeed, PATCO condoned and encouraged it. Even after the striking controllers had been terminated and a majority of the Authority had ordered revocation of its exclusive recognition status, PATCO failed to satisfy Chairman Haughton’s request that it end the strike and promise to abide by the no-strike provisions of the Civil Service Reform Act.
In these circumstances the FLRA’s decision to revoke PATCO’s exclusive recognition status was not an abuse of discretion. The union is a repeat offender that has willfully ignored statutory proscriptions and judicial injunctions. It has shown little or no likelihood of abiding by the legal requirements of labor-management relations in the federal sector. If the extreme remedy that Congress enacted cannot properly be applied to this case, we doubt that it could ever properly be invoked.
C. Evidence of Mitigating Factors
PATCO argues on appeal that the FLRA’s revocation order must be rejected because the A.L.J. and the Authority failed to grant PATCO a continuance to enable the union to gather and prepare evidence in mitigation of the requested remedy. In the hearings before the A.L.J., PATCO suggested that, if given time, it might produce evidence82 regarding its claims that the FAA had refused to bargain in good faith, that working conditions for PATCO members were unsafe, and that antiunion animus existed within the FAA. PATCO contends that it was not given the opportunity to prepare this evidence and, as a consequence, it was improperly prevented from presenting and substantiating mitigating factors that were relevant to the exercise of the FLRA’s remedial discretion. PATCO claims further that, because of the denial of the requested continuance, the record before the Authority was incomplete, and, therefore, the Authority’s decision cannot stand.
At the outset, we note that whatever evidence PATCO might have offered could serve only in mitigation of the FLRA’s ordered remedy and not as justification of PATCO’s actions. Even if mitigating evidence was improperly excluded, it would not affect the conclusion that PATCO committed unfair labor practices in violation of sections 7116(b)(7)(A) and 7116(b)(7)(B).83
In the present case, however, we do not believe that the FLRA abused its discretion by excluding potentially probative evidence of mitigating circumstances. First, based on the record before us we do not find that PATCO made any satisfactory proffer of evidence in mitigation. The A.L.J. repeatedly tried to discern what evidence PATCO intended to offer in response to the case presented by the FLRA General Counsel. PATCO indicated that it might or might not introduce evidence, and that if it did, that evidence would be in an attempt to mitigate the remedy. PATCO made several suggestions of the type of mitigating evidence it might bring forward, but failed to describe in any detail the nature, content or scope of the evidence.85 PATCO was required, however, to do more than this in order to make an offer of proof. An offer of proof must consist of specific evidence that the party proposes to introduce, rather than mere argument and conclusory allegations. See, e.g., Duncan Foundry & Machine Works v. NLRB, 458 F.2d 933, 937 (7th Cir. 1972); Amalgamated Clothing Workers of America v. NLRB, 424 F.2d 818, 827-28 (D.C.Cir.1970).86 In its only proffer that approached this standard, PATCO suggested that it would call certain FAA officials to establish the nature of the air traffic controllers’ working conditions, but it did not identify the officials or request subpoenas from the A.L.J. Nor did PATCO identify the testimony it intended to elicit from these adverse, potentially hostile, witnesses. Therefore, this attempt to make an offer of proof also lacked substance. See UAW v. NLRB, 231 F.2d 237, 242-43 (7th Cir.), cert. denied, 352 U.S. 908, 77 S.Ct. 146, 1 L.Ed.2d 117 (1956). PATCO’s other suggestions of mitigating evidence were even
Second, given the nature of the evidence PATCO indicated it might produce, we do not believe that the A.L.J. erred in denying PATCO a continuance to develop its case in mitigation of the remedy. “It is well established that the grant or denial of a continuance is within the discretion of the ALJ and will not be overturned absent a clear showing of abuse.” NLRB v. Pan Scape Corp., 607 F.2d 198, 201 (7th Cir.1979). In reaching this decision, the A.L.J. may properly consider the length of the delay requested, the potential adverse effects of that delay, the possible prejudice to the moving party if denied the delay, and the importance of the testimony that may be adduced if the delay is granted. See Consolidated Edison Co. v. NLRB, 305 U.S. 197, 226, 59 S.Ct. 206, 215, 83 L.Ed. 126 (1938); NLRB v. Interboro Contractors, 432 F.2d 854, 860 (2d Cir. 1970), cert. denied, 402 U.S. 915, 91 S.Ct. 1375, 28 L.Ed.2d 661 (1971); NLRB v. Sagamore Shirt Co., 401 F.2d 925, 928 (D.C.Cir.1968) (per curiam).
In this case, PATCO requested a thirty-day continuance. At the time of the hearings before the A.L.J., however, the PATCO strike was of some moment. The strike was arguably the most serious unfair labor practice in the federal sector since the enactment of the Civil Service Reform Act. The FLRA General Counsel’s prosecution of the unfair labor practice charges was part of a government-wide response to PATCO’s national strike. If prompt legal response were impossible in these circumstances, it is likely that Congress’ carefully legislated scheme of sanctions in the Civil Service Reform Act would lose much of its credibility, both with federal employee unions and with the public.
Nor can we conclude that PATCO was unfairly prejudiced by the necessarily expeditious treatment given to this case. On at least two occasions during the hearings before the A.L.J., PATCO counsel noted that he could not guarantee that PATCO would present any evidence in mitigation of the remedy even “if given a year” to prepare its case.88 These predictions now appear close to being accurate. PATCO did not identify in any greater detail its mitigating evidence in its briefs before the FLRA, submitted three weeks after the A.L.J. proceedings. Neither has PATCO identified in its briefs before this court, filed over three and six months after the A.L.J. proceedings, the specific evidence that it would have offered in mitigation.
In addition, PATCO can hardly claim surprise at the unfair labor practice charges or suggest a lack of opportunity to prepare for the FLRA proceedings. PATCO had been negotiating with the FAA over a new contract for several months. Certainly, the issues that PATCO sought to raise in mitigation of the remedy — the safety of its members’ working conditions and the alleged antiunion animus of the FAA during bargaining — were raised or perceived dur
Finally, we believe that the Authority could decide that the evidence PATCO indicated it might offer in mitigation would not be sufficiently exculpatory to justify a prolonged delay. As noted above, it does not appear from the record that PATCO had specific mitigating evidence in mind when it requested a continuance from the A.L.J. Furthermore, despite the relevance of the mitigating factors suggested by PATCO, the Authority could reasonably conclude that in this case the factors would be overridden by the extreme nature of PATCO’s violation. As Chairman Haughton stated:
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.
PATCO at 35.
All things considered, we do not believe that the actions of the FLRA are subject to any serious challenge. For the reasons cited above, we hold that it was not an abuse of discretion for the FLRA to deny PAT-CO’s requested continuance and to reach its decision based on the evidence before it and upon the arguments in mitigation presented in PATCO’s brief.89
V. ARGUMENTS OF THE AMICI CURIAE
A. Arguments of the American Federation of Government Employees
The American Federation of Government Employees (“AFGE”) is a federal employee union with approximately 300,000 members. AFGE Brief at 1. The AFGE participated as amicus curiae before the FLRA, and it has filed a brief in that capacity with this court as well. For the most part, AFGE’s arguments parallel those raised by PATCO which have already been dealt with in the preceding sections of this opinion. The AFGE does, however, offer two arguments not heretofore addressed. While we find little merit to these additional contentions, we address them briefly in order to dispose of all material points in issue.
Second, the AFGE argues that the Authority may not invoke section 7120(f) at all in the instant proceeding. In support of this argument, the AFGE notes that section 7120 as a whole is entitled “Standards of conduct for labor organizations” and that section 7120(d) empowers the Assistant Secretary of Labor for Labor Management Relations, and not the FLRA, to issue regulations to carry out the purposes of the section and to accept complaints of violations. 5 U.S.C. § 7120(d) (Supp. IV 1980). Thus, according to the AFGE, the FLRA lacks the statutory authority to revoke a striking union’s exclusive recognition status under section 7120(f). We cannot accept the AFGE’s exaggerated reasoning. The AFGE’s argument totally ignores the plain language of section 7120(f), which empowers the Authority to revoke a union’s exclusive recognition status, and the legislative history behind the subsection. See text at note 77 supra. The heading of the section of a statute and the placement of a particular subsection cannot cast doubt upon an otherwise unambiguous congressional grant of authority. Habib v. Raytheon Co., 616 F.2d 1204, 1210 n.8 (D.C.Cir.1980).
B. Argument of Anthony J. Skirlick, Jr.
Mr. Skirlick is a PATCO member and a nonstriking air traffic controller. He correctly points out that his appearance before this court is the first appearance of a nonstriking controller in this or any other proceeding stemming from PATCO’s 1981 strike. Mr. Skirlick contends that these legal proceedings have failed to consider the effects of the revocation remedy on the nonstriking controllers, many .of whom, according to Mr. Skirlick, are members of a less militant, minority faction within PAT-CO.
Essentially, Mr. Skirlick argues that when the striking PATCO members left their jobs on August 3, they violated federal law. No later than August 5, when President Reagan terminated the striking air traffic controllers, they ceased to be federal employees. Since the strikers were no longer air traffic controllers, Mr. Skirlick argues, they also ceased to be PATCO members. Therefore, when the FLRA revoked PATCO’s exclusive recognition status, it decertified a union composed entirely of nonstriking controllers. That union, so composed, had committed no unfair labor practices and therefore could not properly be decertified.
Mr. Skirlick’s argument obviously depends on his contention that the striking air traffic controllers automatically lost their union membership when their employment was terminated. The record before the FLRA and therefore before this court, however, contains no such finding. The record does not contain a copy of the PATCO Constitution and By-Laws, and we thus cannot confirm Mr. Skirlick’s necessary premise. Cf. Camp v. Pitts, 411 U.S. 138, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973) (per curiam) (in absence of statutory de novo review, court may not create new evidentiary record on appeal from agency decision). Furthermore, Mr. Skirlick conveniently fails to indicate whether internal union procedures may exist by which a PATCO member can contest his dismissal from the union. Moreover, terminated air traffic con-
Furthermore, insofar as the revocation remedy is concerned, we think Mr. Skirlick’s argument must fail even if it is true that PATCO is now “officially” composed only of nonstriking air traffic controllers. PAT-CO’s status as exclusive representative has been revoked because the duly authorized leaders of the National union called, participated in and condoned an unlawful strike. When the strike action commenced, the union leaders were in their positions of authority. When the air traffic controllers walked out, they were at that time still government employees. (Indeed, they could not have been on “strike” or “fired” unless they were government employees.) Therefore, it does not matter that these employees were subsequently fired and then, as a consequence, ceased to be union members. What does matter is that there was an unlawful strike, authorized by the leadership of PATCO and engaged in by a vast majority of the PATCO membership. In these circumstances, the FLRA could properly act to revoke the exclusive representative status of the union.91
Thus, Mr. Skirlick’s argument is novel but specious. The harms that he alleges will accrue to the nonstriking air traffic controllers are a necessary consequence of majority rule. The principle of exclusive representation by the majority union is well established in American labor law, see R. Gorman, Basic Text on Labor Law 374-81 (1976), and we cannot ignore it merely because its implications are occasionally troubling. Cf. Emporium Capwell Co. v. Western Addition Community Organization, 420 U.S. 50, 95 S.Ct. 977, 43 L.Ed.2d 12 (1975) (principle of majority rule renders attempts by a racial minority to protest an employer’s allegedly discriminatory practices outside of the collectively bargained grievance machinery unprotected activities). As intriguing as it may be, Mr. Skirlick’s contention is wholly unpersuasive.
Finally, we note that we perceive nothing that prevents the presently employed air traffic controllers from attempting to form a new labor organization. See 5 U.S.C. § 7111 (Supp. IV 1980); 5 C.F.R. § 2422.-3(a), (d)(3) (1981). If a majority of Mr. Skirlick’s co-workers share his view that union representation is desirable, they may acquire the rights and obligations of union representation in the federal sector through the appropriate statutory process.
VI. CONCLUSION
For the foregoing reasons, we find that the conclusion of the Federal Labor Relations Authority that PATCO committed unfair labor practices by striking in violation of sections 7116(b)(7)(A) and 7116(b)(7)(B) of the Civil Service Reform Act is supported by substantial evidence. We also hold that the Federal Labor Relations Authority did not abuse its discretion in denying PATCO a continuance to prepare evidence in potential mitigation of remedy, or in revoking PATCO’s exclusive recognition status pursuant to section 7120(f). As a result, we deny PATCO’s petition for re
So ordered.
1.
The first codification of the long-standing prohibition of federal employee strikes was in the Labor Management Relations Act of 1947, ch. 120, § 305, 61 Stat. 136, 160. (Prior to 1947, federal employees were expressly prohibited from striking by various appropriation acts that prohibited the expenditure of appropriated funds to pay the salaries of any striking employees. See, e.g., Third Urgent Deficiency Appropriation Act of 1946, ch. 425, § 201, 60 Stat. 262, 268.) Congress repealed § 305 of the Labor Management Relations Act in 1955, replacing it with the predecessors to the current Code provisions. Act of Aug. 9, 1955, ch. 690, 69 Stat. 624 (codified at 5 U.S.C. §§ 118p-118r (1958)).
Even before the codification of the ban on federal employee strikes, the prohibition was apparently understood. See Act of Aug. 24, 1912, ch. 389, § 6, 37 Stat. 539, 555 (codified at 5 U.S.C. § 652 (1926)) (implication by negative pregnant). This proviso to a 1912 Post Office appropriations act was eventually transformed into the current language of 5 U.S.C. § 7101 (Supp. IV 1980).
The prohibition of federal employee strikes was held to be constitutional in United Fed’n of Postal Clerks v. Blount, 325 F.Supp. 879 (D.D.C.) (three-judge court) (per curiam), aff’d mem., 404 U.S. 802, 92 S.Ct. 80, 30 L.Ed.2d 38 (1971).
2.
In 1962, President Kennedy promulgated Executive Order 10,988, which established a limited system of collective bargaining in the federal government. However, labor organizations that asserted the right to strike, or assisted or participated in any strike against the federal government, were excluded from the protections of the Executive Order. Exec. Order No. 10,988, § 2, 27 Fed.Reg. 551, 552 (1962).
3.
Exec. Order No. 11,491, § 19(b)(4), 34 Fed. Reg. 17,605, 17,613 (1969). Until the enact*101ment of the Civil Service Reform Act, Executive Order 11,491, as amended, served as the legal basis for labor-management relations in the federal government. See 5 U.S.C. § 7301 note. (1976 & Supp. I 1977).
4.
Only 2,308 of the 9,034 controllers scheduled to work beginning with the 11:00 a. m. shift on August 3 reported. Attendance increased somewhat on succeeding days, so that by Saturday, August 8, 3,434 of the 9,286 scheduled controllers reported. During the first five days of the strike, the FAA was required to cancel some 26,000 flights and operated at 69 percent of normal capacity. Professional Air Traffic Controllers Org., No. 3-CO-105, slip op. at 3 (Aug. 14, 1981) (Fenton, A.L.J.) [hereinafter cited as ALJ], The ALJ Decision is reprinted in the Joint Appendix at pages 261-71.
5.
E.g., United States v. Professional Air Traffic Controllers Org., 524 F.Supp. 160 (D.D.C.1981) (temporary restraining order); Graham v. Professional Air Traffic Controllers Org., 524 F.Supp. 160 (D.D.C.1981) (same); see generally PATCO Seeks Help from AFL-CIO as FAA Moves To Fire Strikers, 924 Gov’t Empl.Rel. Rep. (BNA) 5 (Aug. 10, 1981).
6.
E.g., United States v. Professional Air Traffic Controllers Org., 107 L.R.R.M. (BNA) 3210 (D.D.C.1981) (civil contempt); United States v. Phillips, 527 F.Supp. 1361 (N.D.Ill.1981) (criminal contempt); see, e.g., United States v. Restor, 529 F.Supp. 579 (W.D.Pa.1982) (sentencing for criminal contempt); United States v. Haggerty, 528 F.Supp. 1286 (D.Colo.1981) (indictments for striking in violation of 5 U.S.C. § 1918 dismissed on ground that contempt citation was criminal after PATCO members were fired and that prosecution would therefore violate Double Jeopardy Clause); United States v. Professional Air Traffic Controllers Org., 525 F.Supp. 820 (E.D.Mich.1981) (civil contempt fines vacated after firing of striking controllers); United States v. Professional Air Traffic Controllers Org., 524 F.Supp. 160 (D.D. *102C.1981) (civil contempt order vacated after firing of striking controllers).
7.
On the morning of the first day of the strike, President Reagan gave the striking controllers 48 hours to return to work or forfeit their jobs. Air Traffic Controllers Strike, 17 Weekly Comp.Pres.Doc. 845 (Aug. 3, 1981). Those who did not return to work on their first scheduled shift after 11:00 a. m. on August 5 were terminated. See Professional Air Traffic Controllers Org. v. United States Dep’t of Transp., 529 F.Supp. 614 (D.Minn.1982). We express no view here as to the legality of those dismissals, either individually or en masse.
8.
AU at 2; Transcript of Aug. 10, 1981 Hearing, Jt. App. 51-52. In its opinion holding PATCO and Robert Poli in contempt, the District Court for the District of Columbia referred to what was apparently the same statement, supporting the inference that Poli’s statement was made after the restraining order had issued. United States v. Professional Air Traffic Controllers Org., 107 L.R.R.M. (BNA) 3210, 3211 (D.D.C.1981).
9.
In the course of the August 10 Hearing, PAT-CO counsel stated:
At this point, Your Honor, PATCO takes the position that the scheduling of the hearing itself has prevented PATCO from adequately preparing to defend the case, to rebut the case, things of that nature.
I would like to proffer to the Court what PATCO would have done or would do in the future, given the opportunity, to present a case to the Court; and where I am going with this proffer is at the end I will request that the Court grant sufficient time for PATCO to accumulate witnesses.
PATCO, if given the opportunity — and when I say proffer, again, because of the nature of the argument that I am making, because we have basically been past-posted [sic] in this matter, things are going too rapidly — when I say proffer, I am not saying PATCO will do it if given a year.
Transcript of Aug. 10, 1981 Hearing, Jt.App. 177-78 (emphasis added).
10.
On August 9, 1981, PATCO filed unfair labor practice charges with an FLRA Regional Director alleging that the FAA had failed to bargain in good faith with PATCO, both from July 31 to August 3 and after the strike began on August 3. Federal Aviation Admin., Dep’t of Transp., Case No. 3-CA-2729; Jt.App. 338-39. On August 25 the Regional Director declined to issue a complaint based on PATCO’s charges, concluding that the FAA had met and negotiated with the union from July 31 to August 3 and that the FAA’s duty to bargain with PATCO was suspended on August 3, 1981, when the union began engaging in an unlawful strike. Jt.App. 344 — 47. PATCO appealed the Regional Director’s decision not to issue a complaint to the FLRA General Counsel, Jt.App. 348-59, who denied the union’s appeal on September 21. Jt.App. 360-62. The Civil Service Reform Act does not provide for judicial review of the General Counsel’s decision not to issue an unfair labor practice complaint. See 5 U.S.C. §§ 7118(a)(1), 7123(a) (Supp. IV 1980); H.R. Rep.No.1403, 95th Cong., 2d Sess. 52 (1978), reprinted in Subcomm. on Postal Personnel and Modernization of the House 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, at 698 (Comm. Print 1979) [hereinafter cited as Legislative History]; 5 C.F.R. § 2423.10(e) (1981).
11.
See Transcript of Aug. 10, 1981 Hearing, Jt.App. 179-87.
12.
Transcript of Aug. 11, 1981 Hearing, Jt.App. 226. At one point, union counsel suggested that PATCO had been “prevented from putting on evidence.” Id. at 234. Judge Fenton immediately pursued the issue by telling counsel: “I would like to be clear on those respects in which you think you have been prevented from coming forward with evidence.... You know, I would like particulars as to who, what, however you would attempt to prove that in fact no unlawful work stoppage has taken place.” Id. at 234 — 35. In response, PATCO counsel stated:
I would not like to bind or bound my clients at this time to the arguments that we will make. We have no evidentiary evidence in the record. Therefore, certainly that is the limits of what we can put on in terms of factual information. However, we will make as many legal arguments as we possibly can in order to defend our clients against the heaviest penalty that the government can bring down upon it. I don’t know what more I can say in that regard.
Id. at 235-36.
13.
Transcript of Aug. 10, 1981 Hearing, Jt.App. 187-88; Transcript of Aug. 11, 1981 Hearing, Jt.App. 233-37, 254. It is questionable whether PATCO did, in any formal sense, make an offer of proof during the proceedings before the A.L.J. See note 12 supra. PATCO certainly did not specify the potential witnesses it sought or the testimony it would have attempted to elicit from them. Indeed, on at least two occasions during the proceeding, PATCO counsel stressed the lack of any assurance that PATCO would present any evidence in mitigation even if granted its requested continuance. See Jt..App. 174-75; note 9 supra.
14.
PATCO further excepted to the ALJ Decision on three additional grounds: (a) that the A.L.J. erred in not consolidating the hearing with PATCO’s unfair labor practice charges against the FAA; (b) that the A.L.J. failed to give reasoned consideration to PATCO’s brief; and (c) that the A.L.J. may have had ex parte contacts with the FAA or with the FLRA General Counsel.
By the time the FLRA Decision was issued, the FLRA General Counsel had decided not to issue a complaint on PATCO’s refusal to bargain charges against the FAA; ground (a) was therefore effectively mooted. See note 10 supra. The FLRA also rejected arguments (b) and (c), respectively, because the ALJ Decision did address the arguments raised in PATCO’s brief (despite a period of only four hours between the filing of PATCO’s brief and the issuance of the ALJ Decision), and because the allegation of ex parte contacts was based only on speculation arising from the FAA and the FLRA General Counsel filing motions to limit the time for taking exceptions before the ALJ Decision had even issued. PATCO does not renew any of these arguments before this court.
15.
Pursuant to its rules, 5 C.F.R. § 2429.9 (1981), the FLRA granted requests by the American Federation of Government Employees (“AFGE”) and the AFL-CIO to present oral arguments as amici curiae. The AFGE also filed an amicus brief before the Authority.
16.
As Member Frazier pointed out in his opinion, the scheduling of the hearing was consistent with the Civil Service Reform Act, 5 U.S.C. § 7118(a)(6) (Supp. IV 1980), and with the FLRA Rules, 5 C.F.R. § 2423.12(b)(3) (1981), both of which provide that an unfair labor practice hearing shall be held not earlier than five days after service of the complaint. Member Frazier also opined: “[T]he scheduling of the hearing was justified in view of the apparent adverse effects of the strike at the time of such scheduling.” Professional Air Traffic Controllers Org., 7 F.L.R.A. No. 10, slip op. at 9-10 (Oct. 22, 1981) [hereinafter cited as PAT-CO]. The FLRA Decision is reprinted in the Joint Appendix at pages 294-332.
17.
Member Frazier also concluded that revocation of PATCO’s exclusive recognition status was called for even if the Authority possessed broad statutory discretion: “[T]he 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.” PATCO at 25 (emphasis added); see id. at 25-28.
18.
Member Applewhaite expressed no view with respect to the relevance of the arguments that PATCO tentatively offered in mitigation of the remedy.
19.
The entire Statement of the PATCO Executive Board 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.
PATCO EXECUTIVE BOARD
October 27, 1981
Jt.App. 334.
20.
This court has jurisdiction to review the FLRA Decision and Order pursuant to 5 U.S.C. § 7123(a) (Supp. IV 1980). The FLRA has not cross-petitioned for enforcement.
21.
See, e.g., Home Box Office, Inc. v. FCC, 567 F.2d 9, 58-59 (D.C.Cir.), cert. denied, 434 U.S. 829, 98 S.Ct. 111, 54 L.Ed.2d 89 (1977); United Air Lines v. CAB, 281 F.2d 53, 58 (D.C.Cir.1960); Sangamon Valley Television Corp. v. United States, 269 F.2d 221, 225 (D.C.Cir.1959); WKAT, Inc. v. FCC, 258 F.2d 418, 419-20 (D.C.Cir.1958) (per curiam).
22.
See Findings at b -7. (“Findings ” refers to the Recommended Findings of Administrative Law Judge John M. Vittone filed with this court on March 26, 1982.)
23.
The Solicitor is the general legal advisor of the FLRA, including the Members. The Solicitor also represents the FLRA on appeals from FLRA orders and in other legal proceedings.
24.
See Findings at 8-12.
25.
See id. at 13-28.
26.
The AFL-CIO presented oral argument to the FLRA in the PATCO case as amicus curiae. Mr. Shanker, however, was unaware of the amicus status of the AFL-CIO at all times relevant to our consideration.
27.
Chairman Haughton chose not to comment on his colleagues’ contacts and accordingly limited his arguments to a defense of his own conduct.
28.
Section 557(d) provides:
(d)(1) In any agency proceeding which is subject to subsection (a) of this section, except to the extent required for the disposition of ex parte matters as authorized by law—
(A) no interested person outside the agency shall make or knowingly cause to be made to any member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of the proceeding, an ex parte communication relevant to the merits of the proceeding:
(B) no member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of the proceeding, shall make or knowingly cause to be made to any interested person outside the agency an ex parte communication relevant to the merits of the proceeding;
(C) a member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to'be involved in the decisional process of such proceeding who receives, or who makes or knowingly causes to be made, a communication prohibited by this subsection shall place on the public record of the proceeding:
(i)all such written communications;
(ii) memoranda stating the substance of all such oral communications; and
(iii) all written responses, and memoranda stating the substance of all oral responses, to the materials described in clauses (i) and (ii) of this subparagraph;
(D) upon receipt of a communication knowingly made or knowingly caused to be made by a party in violation of this subsection, the agency, administrative law judge, or other employee presiding at the hearing may, to the extent consistent with the interests of justice and the policy of the underlying statutes, require the party to show cause why his claim or interest in the proceeding should not be dismissed, denied, disregarded, or otherwise adversely affected on account of such violation; and
(E) the prohibitions of this subsection shall apply beginning at such time as the agency may designate, but in no case shall they begin to apply later than the time at which a proceeding is noticed for hearing unless the person responsible for the communication has knowledge that it will be noticed, in which case the prohibitions shall apply beginning at the time of his acquisition of such' knowledge.
(2) This subsection does not constitute authority to withhold information from Congress.
5 U.S.C. § 557(d) (1976).
30.
By way of exámple, the Senate Report suggested that:
[T]he interests of justice might dictate that a claimant for an old age benefit not lose his claim even if he violates the ex parte rules. On the other hand, where two parties have applied for a license and the applications are of relatively equal merit, an agency may rule against a party who approached an agency head in an ex parte manner in an effort to win approval of his license.
S.Rep.No.354, supra, at 39, Sunshine Act Sourcebook at 234.
The legislative history also notes that the dismissal provisions of §§ 556(d) and 557(d)(1)(D) supplement, rather than replace, an agency’s authority to censure or dismiss an official who engages in illegal ex parte communications and to prohibit an attorney who violates § 557(d) from practicing before the agency. Id at 38, Sunshine Act Sourcebook at 233. See 5 C.F.R. § 2414.9(b), (c) (1981).
31.
In Home Box Office, for example, the court found it possible to uphold FCC rules relating to subscription broadcast television based on the public record. The court also found no indication that the persons who had participated in challenged ex parte contacts had benefited from the final rules. For these reasons, the court permitted the rules to remain in effect pending an evidentiary hearing to determine the nature and source of any ex parte communications. 567 F.2d at 58-59. If ex parte contacts rendered agency decisions void ab initio, then the court in Home Box Office could not have taken the action that it did.
32.
We have also considered the effect of ex parte communications on the availability of *115meaningful judicial review. Where facts and arguments “vital to the agency decision” are only communicated to the agency off the record, the court may at worst be kept in the dark about the agency’s actual reasons for its decision. United States Lines v. FMC, 584 F.2d 519, 541 (D.C.Cir.1978). At best, the basis for the agency’s action may be disclosed for the first time on review. If the off-the-record communications regard critical facts, the court will be particularly ill-equipped to resolve in the first instance any controversy between the parties. See id. at 542. Thus, effective judicial review may be hampered if ex parte communications prevent adversarial decision of factual issues by the agency. Cf. 5 U.S.C. § 554(d)(1) (1976) (employee presiding at the reception of evidence may not consult a person or party on a fact in issue without notice and opportunity for all parties to participate).
33.
Compare, e.g., WKAT, Inc. v. FCC, 296 F.2d 375, 383 (D.C.Cir.) (“corrupt tampering with the adjudicatory process”), cert. denied, 368 U.S. 841, 82 S.Ct. 63, 7 L.Ed.2d 40 (1961), with United Air Lines v. CAB, 309 F.2d 238, 241 (D.C.Cir.1962) (nothing “savoring of corruption or attempt to corrupt”). If the ex parte contacts are of such severity that an agency decision-maker should have disqualified himself, vacation of the agency decision and remand to an impartial tribunal is mandatory. Cf. Cinderella Career & Finishing Schools v. FTC, 425 F.2d 583, 591-92 (D.C.Cir.1970) (failure of single member of agency to disqualify himself for bias requires vacation of agency decision).
34.
See, e.g., Action for Children’s Television v. FCC, 564 F.2d 458, 476 (D.C.Cir.1977) (whether the contacts “may have materially influenced the action ultimately taken”); United States Lines v. FMC, 584 F.2d 519, 539 (D.C.Cir.1978) (“the spectre of substantial influence on the decision”); Jacksonville Broadcasting Corp. v. FCC, 348 F.2d 75, 80 (D.C.Cir.) (order “in significant part the result of extra-judicial representations and influence”), cert. denied, 382 U.S. 893, 86 S.Ct. 186, 15 L.Ed.2d 150 (1965).
35.
See, e.g., Home Box Office, Inc. v. FCC, 567 F.2d 9, 58 (D.C.Cir.), cert. denied, 434 U.S. 829, 98 S.Ct. 111, 54 L.Ed.2d 89 (1977); Peck, Regulation and Control of Ex Parte Communications with Administrative Agencies, 76 Harv.L.Rev. 233, 266 (1962).
36.
Compare, e.g., Sierra Club v. Costle, 657 F.2d 298, 398-99 (D.C.Cir.1981) (“decisive point ... is that EDF itself has failed to show us any particular document or documents to which it lacked an opportunity to respond, and which also were vital to EPA’s support for the rule”), and Rogers Radio Communication Serv. v. FCC, 593 F.2d 1225, 1233-34 (D.C.Cir.1978) (ex parte communication “not secret or surreptitious”), with, e.g., United States Lines v. FMC, 584 F.2d 519, 538-39 (D.C.Cir.1978) (party unaware of contacts which had undetermined influence).
37.
See, e.g., Sangamon Valley Television Corp. v. FCC, 294 F.2d 742 (D.C.Cir.1961) (new proceeding ordered where agency composition had changed and original record was four years old).
38.
On October 20 or 21, 1981, Undersecretary of Labor Malcolm Lovell inquired of Chairman Haughton (whom Lovell had known for over 30 years) when the FLRA Decision would issue. See Findings at 39^0. Mr. Dolph Sand, an FAA attorney, made similar inquiries of Mr. Harold Kessler, the Deputy Executive Director of the FLRA. See id. at 43-44. In neither case were the merits of the case discussed. These contacts fall within the status report exception. 5 U.S.C. § 551(14) (1976).
39.
Mr. Kenneth Blaylock, the President of the American Federation of Government Employees, contacted all three FLRA Members between August 3 and October 22, 1981. In each of these contacts the conversation was limited to Mr. Blaylock inquiring about the status of the case and Mr. Blaylock informing the Members of his attempts to negotiate a settlement to the PATCO strike. In no instance were the merits of the case discussed. Solicitor Freehling advised Member Frazier that the contacts were not impermissible ex parte communications under the status report and settlement exceptions of the FLRA Rules. Findings at 35-39; see 5 C.F.R. § 2414.6(b), (d) (1981).
In passing on these contacts we need not decide whether, as PATCO contends, the settlement exception in the FLRA Rules is in conflict with the strictures of § 557(d). It suffices that these discussions were not relevant to the merits of the unfair labor practice proceeding and that A. L. J. Vittone found that none of the contacts had any effect on the Members’ decisions in the case. See also note 45 infra.
40.
Chairman Haughton had brief, off-the-record communications with Mr. John Leyden and Mr. Richard Leighton regarding the final date on which PATCO could respond to Chairman Haughton’s conditional dissent. The contacts regarded the appropriate interpretation and application of the FLRA Rules, 5 C.F.R. § 2429.21 (1981), were unrelated to the merits, and had no effect on the outcome. Findings at 4CM12.
41.
On October 6, 1981, Member Applewhaite attended a Republican fund-raiser in New York City. Upon learning of his position, various persons made passing remarks to Member Applewhaite about the PATCO case. Member Applewhaite did not discuss the substance of the case. No promises were made to Member Applewhaite by any persons at the fund-raiser, and A. L. J. Vittone found that the conversations at the fund-raiser had no impact on Member Applewhaite’s decision. Findings at 28-30.
Over several months Member Applewhaite had contacts with a Senate staff member and with an Administration official about his possible appointment as FLRA Chairman and about his reappointment, respectively. The PATCO case was discussed in none of these instances, and they had no effect on Member Applewhaite’s decision. Robert Bonitati, Special Assistant to the President for Public Liaison, also made an inquiry on October 9, 1981, about the expected date of issuance of the FLRA Decision. The substance of the case was not discussed. Findings at 30-35.
42.
The Senate Report on the Government in the Sunshine Act notes that “an agency may rule against a party for making an ex parte communication only when the party made the illegal contact knowingly.” S.Rep.No.354, 94th Cong., 1st Sess. 39 (1975), Sunshine Act Sourcebook at 234; see 5 U.S.C. § 557(d)(1)(D) (1976). General Counsel Gordon’s “contact” regarding the PATCO case cannot be considered “knowing” since it resulted only from Ms. Stern’s chance appearance. Thus, PAT-CO’s suggested response to this contact — that the case be remanded to the FLRA and the FLRA General Counsel be ordered to show cause why his interest should not be dismissed — is inapplicable.
43.
PATCO argues that the General Counsel need not, and should not, convey information relevant to the merits of a case to the Authority Members when he seeks their approval under § 7123(d) to pursue temporary relief against an unfair labor practice. PATCO’s argument misses the mark. The likelihood of success on the merits is a relevant judicial concern in granting temporary injunctive relief. In addition, the Civil Service Reform Act allows a court to order temporary relief only if the Authority establishes “probable cause that an unfair labor practice is being committed.” 5 U.S.C. § 7123(d) (Supp. IV 1980). It would defy logic to hold that the General Counsel may not discuss to some degree the merits of an unfair labor practice complaint with the Authority Members before seeking temporary judicial relief.
44.
Member Applewhaite conceded during the evidentiary hearing that he should have asked General Counsel Gordon to leave when Ms. Stern came in to discuss her memorandum. Findings at 6, ¶ 6.
45.
Secretary Lewis’ comments on the possibility of settlement were apparently intended to remove a possible barrier to a speedy resolution of the unfair labor practice complaint. The FLRA favors the amicable settlement of labor disputes, see 5 U.S.C. § 7101(a)(1)(C) (Supp. IV 1980), and Secretary Lewis may have felt that the Authority would postpone its decision if it believed the news reports that meaningful settlement negotiations were ongoing.
PATCO argues that Secretary Lewis’ statements regarding settlement possibilities are improper (i) because his statements do not fall within the exception in the FLRA Rules for “communications proposing settlement,” 5 C.F.R. § 2414.6(d) (1981), and (ii) because, even if his statements fall within the exception, the exception is in conflict with § 557(d) and therefore invalid. We need not pass upon the scope of the exception in the FLRA Rules for settlement communications or upon its validity. But cf. NLRB v. Sanford Home for Adults, 669 F.2d 35, 37 (2d Cir. 1981) (applying identical NLRB exemption for ex parte communications regarding settlement). Like Secretary Lewis’ comments relating directly to speedy consideration of the case, these comments did not taint the proceedings or prejudice PATCO. A.L.J. Vittone expressly found that Secretary Lewis’ calls had no effect on the ultimate decision of the PATCO case. Findings at 12, ¶ 36.
46.
Because Secretary Lewis’ comments related only to the desired speed of the FLRA’s disposition rather than to the merits of the case, PAT-CO is required to make a stronger showing of ■ prejudice from that contact and any consequent acceleration of the case before the proceeding may be voided. See Gulf Oil Corp. v. FPC, 563 F.2d 588, 610-11 (3d Cir.1977), cert. denied, 434 U.S. 1062, 98 S.Ct. 1235, 55 L.Ed.2d 762 (1978).
PATCO’s principal argument on timeliness relates to Chief A.L.J. Fenton’s denial of a request to continue the hearing on the unfair labor practice complaint. This argument is entirely separate from any concern with the six-day difference in time to file exceptions to Chief A.L.J. Fenton’s recommended decision. PATCO’s principal argument on timeliness is addressed in Part IV.C. infra.
47.
Mr. Shanker suggests that “[s]ince there is no sanction available against amici, it is reasonable to assume that the ex parte rules are not intended to apply in these circumstances.” Shanker’s Brief at 14. This argument is simply a non sequitur. The principal purpose of the ex parte rules is not to punish violators, but to preserve the integrity of the administrative process. Even when a nonparty is the source of an ex parte communication, a proceeding may be voided if the decision is irrevocably tainted. In such a case, the principal purpose of the statute would be served, even though a direct sanction against the violator might be unavailable. Cf. S.Rep.No.354, 94th Cong., 1st Sess. 39 (1975), Sunshine Act Sourcebook at 234 (inadvertent ex parte contact not a basis for sanction against a party, but nonetheless voids an irrevocably tainted proceeding).
48.
Similarly, Mr. Shanker’s previous expression of his sentiments in the mass media did not give him license to expound them directly to the agency decisionmaker in an off-the-record conversation.
49.
Even Mr. Shanker seems to recognize as much. He testified that he has never talked to a Member of the National Labor Relations Board when his union had a case pending before the Board. Tr. 1449.
50.
Member Applewhaite informed Chairman Haughton and Member Frazier of his dinner plans; neither of them suggested that the meeting between Member Applewhaite and Mr. Shanker was improper. By itself, it was not.
51.
Member Applewhaite did not attempt to hide his dinner with Mr. Shanker from Member Frazier and Chairman Haughton or from Authority officials. Although the conversation should have been disclosed on the public record, see 5 U.S.C. § 557(d)(1)(C) (1976); 5 C.F.R. § 2414.8 (1981), Member Applewhaite was advised by Solicitor Freehling about the FLRA Rules and then concluded that public disclosure was unnecessary. Findings at 25-26, ¶¶ 38-42.
52.
In concluding that the dinner had no ultimate effect on Member Applewhaite’s decision, A.L.J. Vittone did not dismiss the possibility that it may have had some temporary impact. A.L.J. Vittone commented: “At the very most, the effect was transitory in nature, and occurred from September 21 to October 9.” Findings at 49. We do not read A.L.J. Vittone’s statement as a finding that there was a transitory effect, but only as a suggestion that *122there might have been such an effect and as a statement that he could not confirm or deny its existence. Our independent review of the record leaves us even more dubious of a temporary impact.
First, we believe that A. L.J. Vittone (who is not himself a labor lawyer) may have misunderstood the severity of the position Member Applewhaite took at the September 21 meeting of the FLRA Members. Member Applewhaite favored a revocation of PATCO’s exclusive recognition status for a fixed period of one to three years. Member Frazier, on the other hand, favored an indefinite revocation. A.L.J. Vittone concluded that Member Applewhaite’s position was more severe.' See Findings at 19, ¶21. That, however, was not necessarily the case. Depending on the standards for and the likelihood of vacating an indefinite revocation, a fixed-term revocation might be either more or less severe. If indeed Member Applewhaite’s position before the September 21 dinner was less severe than Member Frazier’s, then Member Applewhaite’s negotiations with Chairman Haughton after the dinner may not represent any fundamental change in position.
Second, A.L.J. Vittone failed to make any findings regarding a telephone conversation between FLRA Chief Counsel Klein and Member Applewhaite after the September 21 meeting and before the Applewhaite/Shanker dinner According to uncontroverted testimony by both Chief Counsel Klein and Member Applewhaite, Member Applewhaite expressed some concern that he had been perceived as unduly harsh in the earlier meeting. They made arrangements to meet the next day to further discuss Member Applewhaite’s position. Tr. 813-15, 1883-85. This conversation (which we have no reason to believe did not occur) suggests that Member Applewhaite’s position was flexible before he had dinner with Mr. Shanker. Therefore, we cannot conclude that any perceived change in position after the dinner necessarily resulted from it.
Finally, we believe that A.L.J. Vittone’s failure to dismiss the possibility of a transitory effect resulted in part from his failure to credit some of Member Applewhaite’s testimony when it conflicted with Member Frazier’s. A.L.J. Vittone credited Member Frazier’s testimony even though he did not permit an inquiry into'Member Frazier’s motives in commencing the FBI investigation. Under the circumstances — Member Frazier’s two-week delay in initiating the investigation, Member Frazier’s failure to report the Applewhaite/Shanker dinner on the public record, and Member Frazier’s failure to suggest that Member Applewhaite disqualify himself — reasonable questions might have been raised about Member Frazier’s motives. The answers to these questions might well have reflected on Member Frazier’s credibility. While we do not conclude that Member Frazier acted improperly, we believe that A.L.J. Vittone lacked all the information relevant to his credibility determinations.
In sum, we are unable to say whether the Applewhaite/Shanker dinner had even a transitory influence on Member Applewhaite’s position. We cannot conclude that there was no effect, but the record evidence clearly precludes us from finding that there was such an effect either. We believe that this strengthens A.L.J. Vittone’s conclusion that the dinner had no effect on the FLRA’s ultimate decision.
53.
During oral argument, counsel for PATCO suggested that Mr. Shanker’s reference to the PATCO “strike” may have undercut his argument that the FLRA General Counsel had failed to prove the existence of a strike by a PATCO National union. See Part 1II.B. infra. We hardly believe that Mr. Shanker’s single statement to Member Applewhaite in a sea of media attention to the “PATCO strike” prejudiced PATCO’s argument. We are reinforced in this belief by our review of the evidence of a strike.
54.
As A.L.J. Vittone commented: “I think we all understand that people who are appointed to these jobs are interested in being reappointed.” Tr. 1554. The hearing revealed, not surprisingly, that Member Frazier had discussed the prospects for his own reappointment in 1980 with his colleagues. Tr. 1553-54, 1557-58.
55.
We, too, sit as judges in “hotly contested” cases. Inevitably, our decisions are found unsatisfying to some parties and scholarly commentators. Our recognition of that fact, however, does not mean that we “play to the gallery.” Rather, we apply our understanding of the law to the best of our ability. Although (to paraphrase Justice Jackson) we are neither final nor infallible, our fallibility — and the criticism that accompanies it — does not mean that we are biased.
56.
Member Frazier understandably does not argue that the mere recognition of concern about reappointment is cause for disqualification. If that were the case, then all agency members (other than those who have no desire to be reappointed) would be subject to disqualification.
Member Frazier’s argument that a public expression of concern about reappointment demonstrates a strong personal interest requiring disqualification might be persuasive in another context. But it is not here, where a private remark to a personal friend became public only through a special hearing ordered for entirely different reasons.
57.
Similarly, whichever way he voted might affect his chances for reappointment. If he voted “for” PATCO, he might be viewed harshly by the Administration; if he voted “against” PATCO, he might not receive support from organized labor that might be important to his reappointment.
58.
Indeed, Member Frazier’s position before this court is contradicted to some extent by his statement before A.L.J. Vittone. Member Frazier testified that “any discussion Member Applewhaite may have had about seeking a reappointment commitment from the Administration, if there was such a discussion, had no impact or effect upon Member Applewhaite’s decision in the PATCO case.” Findings at 34-35, ¶ 11.
59.
Cf. Comment, Administrative Bias: An Update, 82 Dick.L.Rev. 671, 673 (1978) (suggesting that the “appearance of bias” test for disqualification, instead of actual bias, is in part the result of courts’ reluctance to inquire into the mental processes of decisionmakers).
60.
See, e.g., 124 Cong.Rec. 25,722 (1978) (remarks of Rep. Ford), reprinted in Legislative History, supra note 10, at 856; 124 Cong.Rec. 27,590-91 (1978), Legislative History at 1036-38 (amendment of Sen. Stevens).
61.
Section 7116(b)(7) provides:
(b) For the purpose of this chapter, it shall be an unfair labor practice for a labor organization—
(7)(A) to call, or participate in, a strike, work stoppage, or slowdown, or picketing of an agency in a labor-management dispute if such picketing interferes with an agency’s operations, or
(B) to condone any activity described in subparagraph (A) of this paragraph by failing to take action to prevent or stop such activity
5 U.S.C. § 7116(b)(7) (Supp. IV 1980).
62.
This is not to say that such an inference could never be defeated by other evidence offered by the respondent union showing that work stoppages were in fact purely the result of local union actions. PATCO, however, produced no such evidence.
63.
Both videotaped statements are quoted in Part I.B. of this opinion. See text at note 8 supra. PATCO repeatedly refers to these videotapes as “unauthenticated.” E.g., PATCO Brief at 7, 22; but see Fed.R.Evid. 901(b)(5). We note that there is no formal requirement of authentication before the FLRA. See 5 U.S.C. § 7118(a)(6) (Supp. IV 1980); 5 C.F.R. § 2423.-17 (1981). If the videotapes were falsified or potentially misleading, it was within PATCO’s power to offer testimony discrediting or explaining them.
64.
For the text of this section, see note 61 supra.
65.
Chief A.L.J. Fenton interpreted § 7116 (b)(7)(B) as requiring the respondent to “come forward with .. . exculpating evidence” in order to avoid an unfair labor practice finding after the General Counsel established a prima facie case of a work stoppage or strike. ALJ at 4. While the General Counsel bears the burden of proving an unfair labor practice, we agree with the A.L.J. that § 7116(b)(7)(B) should be interpreted to require the union to produce evidence that it attempted to prevent or stop a strike. Were the section interpreted differently, it would require the General Counsel to prove a negative — that the respondent union did not try to prevent or stop a strike— and would also require the General Counsel to prove facts peculiarly within the control of the opposing party — what actions the respondent union did or did not take. Common sense and established principles of evidence disfavor unnecessarily placing such difficult, perhaps impossible, burdens on a party. See, e.g., Allstate Fin. Corp. v. Zimmerman, 330 F.2d 740, 744 (5th Cir. 1964).
66.
Because we find that PATCO was in fact aware of this strike, and thus had an affirmative obligation under the statute to attempt to stop it, we express no view as to what knowledge about members’ actions may be presumed or even required. Suffice it to say that we do not believe that a veil of ignorance should be an easily assumed shield from unfair labor practice charges having to do with strike activity.
67.
PATCO also argues that after the mass firings of striking air traffic controllers on August 5, see note 7 supra, it was legally disabled from ending the work stoppage and hence could not be found in violation of § 7116(b)(7)(B). PAT-CO relies primarily upon United States v. Professional Air Traffic Controllers Org., 524 F.Supp. 160 (D.D.C.1981), in which the District Court held that PATCO could not be held in contempt of its no-strike order after compliance was made impossible by the August 5 firings. We, of course, express no view at this time on the District Court decision, but even if we accept the logic of its holding, it does not avail PATCO. Even if PATCO was unable to violate § 7116(b)(7)(B) after August 5, that does not deny or rescind PATCO’s violation of the section by failing to take action to prevent the strike before August 3 and by failing to take action to stop the strike between August 3 and August 5.
68.
As noted in Part I.B. supra, Chief A.L.J. Fenton and Member Frazier both believed that § 7120(f) granted the Authority relatively little discretion in deciding whether to revoke a striking union’s exclusive recognition status. They thought that the exercise of the Authority’s discretion turned exclusively on the culpability of the union in calling the strike and the efforts of the union to end the strike once it began. Chairman Haughton and Member Applewhaite, however, took a broader view of the Authority’s discretion. Haughton and Applewhaite did not enumerate all of the factors that they though relevant to deciding if revocation would be warranted, but interpreted Congress’ action as leaving that decision to the Authority on a case-by-case basis.
69.
PATCO, of course, would interpret § 7120(f) as granting the FLRA broad discretion to consider any number of factors in making its revocation decision. The FAA, on the other hand, suggests that Member Frazier’s limited view of the Authority’s discretion is preferable. The FLRA Solicitor, forced to defend a unanimous FLRA Decision stemming from divergent views of the FLRA Members, understandably avoids taking a firm stance regarding the scope of the Authority’s discretion. The FLRA Solicitor nevertheless argues, in effect, that whatever the scope of the statutorily granted discretion, the FLRA properly exercised it in this case.
70.
Section 7118(a)(7) states:
If the Authority (or any member thereof or any individual employed by the Authority and designated for such purpose) determines after any hearing on a complaint under paragraph (5) of this subsection that the preponderance of the evidence received demonstrates that the agency or labor organization named in the complaint has engaged in or is engaging in an unfair labor practice, then the individual or individuals conducting the hearing shall state in writing their findings of fact and shall issue and cause to be served on the agency or labor organization an order—
(A)to cease and desist from any such unfair labor practice in which the agency or labor organization is engaged;
(B) requiring the parties to renegotiate a collective bargaining agreement, in accordance with the order of the Authority and requiring that the agreement, as amended, be given retroactive effect;
(C) requiring reinstatement of an employee with backpay in accordance with section 5596 of this title; or
(D) including any combination of the actions described in subparagraphs (A) through (C) of this paragraph or such other action as will carry out the purpose of this chapter.
5 U.S.C. § 7118(a)(7) (Supp. IV 1980) (emphasis added). See also id. § 7105(g)(3) (Supp. IV 1980).
71.
Another subsection of the Act excludes from the definition of employee “any person who participates in a strike in violation of section 7311 of this title.” 5 U.S.C. § 7103(a)(2)(v) (Supp. IV 1980).
72.
Indeed, if read expansively, the definitional reach of § 7103(a)(4)(D) would sweep much more broadly than the remedial provision in § 7120(f). As Member Frazier noted, § 7103(a)(4)(D) refers not “to revocation of certification as such, but to elimination of the union as a ‘labor organization’ for all purposes.” PATCO at 19 n.33.
73.
The Order also provided, rather opaquely, that once “recognition of a labor organization has been accorded, the recognition continues as long as the organization continues to meet the requirements of this Order applicable to that recognition.” Id. § 7(c). Arguably, this section might have been construed to allow the Federal Labor Relations Council, the predecessor to the Federal Labor Relations Authority, to revoke a union’s recognition status under Executive Order 11,491. However, no such cases have been cited to us on this appeal.
During debate on Title VII in the House of Representatives, Congressman Erlenborn expressed the view that “under the Executive order an illegal strike by Federal employees causes the union that has been certified as the bargaining agent to lose their [sic] status as exclusive agent.” 124 Cong.Rec. 28,794 (1978), reprinted in Legislative History, supra note 10, at 879. What basis Congressman Erlenborn had for this statement — the sole expression of such a viewpoint in either House or Senate debate — is unclear.
74.
Congressman Udall termed his substitute a “middle ground” between the pro-labor version reported by the House Committee and a pro-management substitute offered by Congressman Collins. 124 Cong.Rec. 29,182 (1978), Legislative History at 923. Compare id. at 29,-174-82, Legislative History at 907-22 (Udall substitute) with H.R. 11,280, 95th Cong., 2d Sess. (1978), reported in H.R.Rep.No.1403, 95th Cong., 2d Sess. 288-345 (1978), Legislative History at 376-433 (Committee bill) and 124 Cong. Rec. 29,167-73 (1978), Legislative History at 894-905 (Collins substitute). The Collins substitute would largely have codified the provisions of Executive Order 11,491. See id. at 29,173-74, Legislative History at 905-07 (remarks of Rep. Collins).
75.
See, e.g., S.Rep.No.969, 95th Cong., 2d Sess. 12 (1978), Legislative History at 749.
76.
The Senate Committee Report offered no explanation of the definitional exclusion. See S.Rep.No.969, supra, at 97-98, Legislative History at 757-58. It therefore neither supports nor disputes the House view that the exclusion of striking unions from the Act was meant to be discretionary with the FLRA.
77.
Section 7216(b)(4)(B) of the Senate bill declared that any union that condoned a strike, work stoppage, slowdown, or picketing that interfered with agency operations was guilty of an unfair labor practice. S. 2640, 95th Cong., 2d Sess. § 7216(b)(4)(B) (1978), S.Rep.No.969, 95th Cong., 2d Sess. 296 -97 (1978), Legislative History at 524-25; compare 5 U.S.C. § 7116(b)(7)(B) (Supp. IV 1980). Senator Hatch intended by reference to § 7216(b)(4)(B) of the Senate bill to also include violations of § 7216(b)(4)(A), which prohibited active union involvement in strikes, work stoppages, slowdowns, or picketing that interfered with agency operations; he stated that “(B) ... by implication include[s] (A).” 124 Cong.Rec. 27,584 (1978), Legislative History at 1028.
78.
We intimate no view as to what attempts by a union to end a wildcat strike would, if unsuccessful, satisfy the union’s statutory obligations under § 7116(b)(7)(B).
79.
In some respects Congress granted the FLRA broader remedial authority than is possessed by the NLRB. Under § 7118(a)(7)(B), for example, the FLRA may impose certain provisions of a collective bargaining agreement on the parties and may make those provisions retroactively effective. See 124 Cong.Rec. 38,-714 (1978), Legislative History at 992-93 (statement of Rep. Ford). Such authority is denied the NLRB by § 8(d) of the National Labor Relations Act, 29 U.S.C. § 158(d) (1976). H. K. Porter Co. v. NLRB, 397 U.S. 99, 90 S.Ct. 821, 25 L.Ed.2d 146 (1970). The differences in the FLRA’s and the NLRB’s remedial authority, however, do not imply that the agencies have unequal discretion when acting within the scope of their respective remedial authorities.
80.
In prior reviews of FLRA decisions, this Circuit has recognized the “principle that the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong.” National Fed’n of Fed. Employees v. FLRA, 652 F.2d 191, 193 (D.C.Cir.1981) (quoting Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1801, 23 L.Ed.2d 371 (1969)); accord, Department of Defense v. FLRA, 659 F.2d *1351140, 1153 n.74, 1161-62 (D.C.Cir.1981), cert. denied, 455 U.S. 945, 102 S.Ct. 1443, 71 L.Ed.2d 658 (1982). In this regard, we note that our interpretation today of the extent of the Authority’s remedial discretion under § 7120(f) affirms the views of a majority of the Authority.
81.
See, e.g., Ogden v. Department of Transp., 430 F.2d 660 (6th Cir. 1970) (denying stay of disciplinary discharge of striking air traffic controllers); United States v. Moore, 427 F.2d 1020 (10th Cir. 1970) (affirming stay of discharges resulting from 1970 strike); Henson v. United States, 321 F.Supp. 122 (E.D.La.1970) (denying injunction against disciplinary discharge of striking controllers); Herriges v. United States, 314 F.Supp. 1352 (D.Mont.1970) (denying injunction against disciplinary discharge of striking controllers); United States v. Professional Air Traffic Controllers Org., 312 F.Supp. 189 (D.Minn.1970) (restraining order and injunction against sick-out; civil contempt for violations); Air Transp. Ass’n v. Professional Air Traffic Controllers Org., 313 F.Supp. 181 (E.D.N.Y.) (restraining order, continued violation and injunction against strike), vacated in part sub nom. United States v. Professional Air Traffic Controllers Org., 438 F.2d 79 (2d Cir. 1970), cert. denied, 402 U.S. 915, 91 S.Ct. 1373, 28 L.Ed.2d 661 (1971). See also Professional Air Traffic Controllers Org., 1 A/SLMR 71 (disqualifying PATCO from certification under Exec. Order 11,491 due to 1970 strike), vacated, 1 A/SLMR 268 (1971). See generally Note, The Legal Consequences of a Deliberate Air Traffic Controller Slowdown, 8 N.Ky.L.Rev. 155 (1981).
82.
See notes 9-13 and accompanying text supra.
83.
Distinctions between types of strikes, such as are drawn in the private sector between “economic strikes” and “unfair labor practice strikes,” see e.g., Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 76 S.Ct. 349, 100 L.Ed. 309 (1956); see generally R. Gorman, Basic Text on Labor Law 339-43, 618-19 (1976), are not rec*137ognized in the federal sector. The Civil Service Reform Act simply makes no distinction between types of strikes or the reasons for them. PATCO therefore cannot argue, and we do not believe it does, that while strikes by federal employee unions in general are banned, its strike was not. See Bennett v. Gravelle, 451 F.2d 1011 (4th Cir. 1971), cert. dismissed, 407 U.S. 917, 92 S.Ct. 2451, 32 L.Ed.2d 692 (1972).
84.
Compare 5 U.S.C. § 7120® (Supp. IV 1980) with, e.g., N.Y.Civ.Serv.Laws § 210(3)(f) (McKinney Supp. 1981-82): “In fixing the duration of the [striking union’s] forfeiture [of rights to dues withholding], the board .. . may consider ... (ii) whether, if so alleged by the employee organization, the appropriate public employer or its representatives engaged in such acts of extreme provocation as to detract from the responsibility of the employee organization for the strike.”
85.
Even Chairman Haughton, the FLRA Member most receptive to PATCO’s argument that it was unfairly prevented from presenting mitigating evidence, stated: “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.” PAT-CO at 35.
86.
In a case similar to this, the NLRB commented:
We are cognizant of the following circumstances in connection with the Respondent’s offer of proof. It was couched in general and conclusionary terms and failed to recite the identity or description of the witnesses, or other evidence, to be introduced by the Respondent. Further, the offer did not delineate the nature, content, or scope of any such prospective evidence with any degree of exactitude. Indeed, the form of the offer more nearly approximated a bare contention by the Respondent rather than an offer of proof.
Union Elec. Steel Corp., 140 N.L.R.B. 138, 138 n.l (1962).
87.
The cases principally relied upon by PATCO are readily distinguishable. See Catholic Medical Center v. NLRB, 589 F.2d 1166 (2d Cir.1978); NLRB v. Process & Pollution Control Co., 588 F.2d 786 (10th Cir.1978); Scenic Hudson Preservation Conference v. FPC, 354 F.2d 608 (2d Cir. 1965), cert. denied, 384 U.S. 941, 86 S.Ct. 1462, 16 L.Ed.2d 540 (1966); Donnelly Garment Co. v. NLRB, 123 F.2d 215 (8th Cir. 1941). In Catholic Medical Center, detailed evidence was accepted and findings made, but these were then excluded from consideration in the agency’s decision. 589 F.2d at 1169-70. In Process & Pollution Control and Scenic Hudson, detailed and specific evidence was tendered, but was rejected by the agencies. 588 F.2d at 789; 354 F.2d at 618-19. Thus, the facts of these cases differ significantly from PATCO’s general, conclusory and conditional offer of evidence in mitigation here. Finally, Donnelly Garment has at best limited precedential value. In the decision PATCO cites, the Eighth Circuit denied enforcement of an NLRB order. After remand and further proceedings, the NLRB issued virtually the same order. Relying on similar reasoning, the Eighth Circuit again denied enforcement, 151 F.2d 854 (8th Cir. 1945), and the Supreme Court reversed, NLRB v. Donnelly Garment Co., 330 U.S. 219, 67 S.Ct. 756, 91 L.Ed. 854 (1947).
88.
Transcript of August 10, 1981 Hearing, Jt. App. 178. See note 9 supra.
89.
We also note that the denial of PATCO’s requested continuance did not eliminate other, procedures available to PATCO to vindicate its asserted injuries. As provided for by the Civil Service Reform Act, PATCO filed unfair labor practice charges with the FLRA General Counsel alleging that the FAA had refused to bargain in good faith. See note 10 supra. Had the General Counsel issued a complaint against the FAA, the results of that proceeding could have been considered in mitigation of the remedy directed by the FLRA at PATCO. PATCO’s charges against the FAA, however, were ultimately rejected by the General Counsel. Thus, PATCO’s argument that the FAA refused to bargain in good faith was considered in full accordance with the Act.
In addition, PATCO never sought relief for its asserted injuries before the Federal Services Impasses Panel. To the extent that PATCO’s safety complaints were unresolved due to a negotiation impasse with the FAA, and to the extent that its refusal to bargain charge against the FAA stemmed from the same negotiation impasse, PATCO could have resorted to the Impasses Panel. See 5 U.S.C. § 7119(c) (Supp. IV 1980). PATCO chose not to do so.
90.
The legitimacy of President Reagan’s dismissal of striking air traffic controllers is not an issue before us. We therefore express no view in its regard.
91.
If we accepted Mr. Skirlick’s argument, then § 7120(f) could never be applied to any union with a constitutional provision that makes continued federal employment a condition of membership. Surely, Congress did not intend that unions could use § 7103(a)(2)(v) as a means of *142avoiding the discipline expressly sanctioned in § 7120(f).
92.
As noted in Part II. of this opinion, we also hold that there is no reason to vacate the FLRA Decision or to remand the case for any further proceedings due to any ex parte communications. First, we have found no ex parte communications that irrevocably tainted the Authority’s decision. Second, we have concluded that the proceedings before the FLRA did not effect any procedural unfairness on any of the parties. Finally, because the ex parte contacts issue already has been fully and adequately addressed during the special evidentiary hearing before Judge Vittone, and because the facts of this case are free from any arguable taint, we have concluded that a remand of this case would be a futile gesture.
29.
Id. at 8, ¶ 7.