concurring in part, and concurring in the judgment.
I join my colleagues in their construction of the relevant provisions of Title VII of the Civil Service Reform Act,1 and in their application of those statutory sections to the action of the Federal Labor Relations Authority (FLRA) in this case. I also agree, on review of the extensive record compiled and the careful findings proposed by Administrative Law Judge Vittone,2 that the ex parte communications which sullied FLRA’s handling of the case did not affect its members’ ultimate decision, and therefore do not call for a remand. I thus concur in Parts I, III and IV of the court’s opinion. I cannot, however, subscribe to Part II. The treatment there accorded the most conspicuous contacts and the tone pervading the discussion tend, I fear, to minify the gravity of the improprieties that occurred, and to understate the culpability of those who initiated and those who received ex parte pleas and approaches.
From the special hearing emerges an appalling chronicle of attorneys, high government officials, and interested outsiders apparently without compunction about intervening in the course of FLRA’s decision-making by means of private communications with those charged with resolving the case on the merits. We have an even more distressing picture of agency decisionmakers — whose role in this formal adjudication concededly approximated that of judges— seemingly ignorant of the substance of the ex parte rules, insensitive to the compromising potentialities of certain official and social contacts, and unwilling to silence peremptorily and firmly improper discussions that did transpire. Although the special hearing disclosed no such taint on the agency’s ultimate decision as would require additional corrective proceedings, I feel compelled to review several of these incidents, for in my view the court’s opinion administers a mild chiding where a ringing condemnation is in order.
I. THE APPLEWHAITE-GORDON INCIDENT
FLRA General Counsel H. Stephen Gordon was seated in Member Applewhaite’s office discussing budgetary and other administrative matters when Ellen Stern, an attorney from the agency’s Solicitor’s office, brought Applewhaite a memorandum.3 This document, which had been prepared for the members at the request of Member Frazier, explored the scope of FLRA’s discretion in imposing sanctions on a striking union of federal employees.4
*143Applewhaite, Stern, and Gordon then proceeded to engage in a 15-minute conversation about the substance of this memorandum.5 Stern outlined her view on the statutory interpretation question and explained the conclusion she had reached.6 Applewhaíté asked about penalties other than decertification and suggested that Stern research analogous laws in other jurisdictions.7 Gordon also questioned Stern about remedial alternatives,8 remarking that he “would have to make some recommendations” if other remedies were possible,9 and inquired whether her research had included a review of the legislative history.10 Eventually, Applewhaite turned to Gordon and asked, “How do you feel about this?”11 Gordon’s response was a noncommittal remark that he was a lawyer and “can take any side my client wants me to take.” 12 At the time of this incident, the complaint had issued against PATCO, and Gordon’s office was prosecuting the unfair labor practice charge.13 Both Applewhaite and Gordon knew that Stern’s memorandum related specifically to the PATCO case,14 and the remedial problem examined in that memorandum was one of the pivotal legal questions in the litigation.
There is no dispute about these facts. Nor is there any dispute that, with respect to ex parte discussions “relevant to the merits” of the PATCO case, Gordon’s status was that of an “interested person outside the agency.” 15 By the terms of the Administrative Procedure Act, then, Gordon’s participation in the discussion of Stern’s memorandum was improper. Given this, I think it perilous too readily to dismiss the incident as “innocuous” and “inadvertent.”16
As basis for the first characterization, the court accurately notes that (1) Gordon neither argued to nor asked questions directly of Applewhaite; (2) Applewhaite did not reveal his position; and (3) the facts of the PATCO case were not discussed.17 However, these factors hardly reduce a prohibited ex parte contact to an indiscreet peccadillo. Patent advocacy is not the sine qua *144non of ex parte influence. As any experienced trial attorney well knows, a skillful disputant ofttimes can accomplish as much by artfully posing questions as by openly propounding argument. And the potential for effecting a point by subtle indirection clearly is not diminished simply because the questioner directs his queries to a third party in the room. Of no greater meliorating value is the fact that Applewhaite did not actually announce a view on the problem being discussed. Perhaps we ought take comfort that the impropriety was not as great as it might have been; still, it was great enough. The party permitted to witness an internal discussion during which the . legal analysis of the decisionmaker on a key issue is evolving enjoys an obvious advantage even if he cannot discern exactly how the decisionmaker ultimately will vote. Able to observe the questions asked, the concerns expressed, and the suggestions made by the decisionmaker, the party can tailor his subsequent presentations accordingly, and so enhance their effectiveness. The third point, the apparent absence of any reference to the specific facts of the PATCO case, is the least palliative of all. Gordon testified unequivocally that he knew that the context of the discussion was the PATCO litigation.18 Similarly, Applewhaite’s testimony reveals' he was well aware that PATCO ^vas the impetus for the memorandum.19 Of what conceivable mitigation is it that the two did not make explicit what both implicitly understood?
This incident thus was fraught with opportunities for the kind of ex parte influence that Section 557(d) of the APA was designed to forestall. That those opportunities may not have been seized upon in this particular instance does not lessen the gravity of the departure from the statutorily-prescribed code of conduct. Nor can I accept the suggestion that Applewhaite’s and Gordon’s failure to observe the ex parte rules can be excused as “entirely inadvertent.” 20 The court’s observation that “accidental or passing references to a pending case do not per se deprive a party of a fair proceeding”21 undoubtedly is accurate as a general statement of the law. I think, however, it provides little assistance in determining whether the Applewhaite-Gordon episode irrevocably tainted FLRA’s deliberations. A 15-minute discussion of the substance of a legal memorandum prepared for agency members on a critical legal issue of the case is not a mere “passing reference.” And although Gordon’s presence at the Stern-Applewhaite interchange may initially have been inadvertent, his remaining for and actively participating in the discussion were hardly “accidental.” Surely we do not mean to suggest that so long as an interested party does not deliberately place himself in a position to have an ex parte contact he is relieved of all responsibility promptly to terminate his involvement if circumstances take an unexpectedly improper turn.
It is one of the facts of administrative life that agencies such as FLRA fulfill, often simultaneously, the several roles of investigator, prosecutor, adjudicator, and policy formulator. Undoubtedly, this commingling of functions makes it more difficult to maintain a strict separation between those personnel who, on any given case, are cast in the role of advocate from those who occupy the position of judge in the matter. Once the agency is engaged in formal adjudication, however, such a separation is mandated by the APA,22 and is essential to the integrity of the administrative process. The perils of laxness on this point are well illustrated by the Applewhaite-Gordon incident. The prosecutor in an important and controversial case is permitted access to the substance of an internal legal memorandum on a pivotal issue. He hears and participates in discussion of the analysis being formulated on the question. At one point, *145the decisionmaker, apparently without any conception of the seriousness of what he is about to do, turns to the prosecutor and asks for the latter’s opinion on the problem. Although we have accepted Judge Vittone’s findings that this incident had no effect on Applewhaite’s ultimate decision23 — and therefore does not compel a remand — surely we ought not even intimate that we condone what happened. The conversation was not merely indiscreet or undesirable; it was, purely and simply, a prohibited ex parte contact that should never have occurred. Gordon had no business remaining in the room once he realized that PATCO was the object of discussion. Applewhaite had no business permitting him to remain, and certainly was grossly at fault in soliciting Gordon’s opinion on the issue.24
The ease with which prosecutors can communicate with adjudicators in the administrative setting demands a heightened degree of vigilance — a particularly keen scrupulousness — on the part of agency personnel. If administrators engaged in formal adjudicatory proceedings will not abide by this standard of care on their own initiative, then courts have no choice save to force them to adhere to it. Brushing aside departures from the standard on grounds that the lapses were the fruit of heedlessness rather than willfulness does no service to the agency or to its processes. The purity of administrative adjudication can be preserved only if the agency is made to see that such thoughtlessness is a problem, not an excuse.
II. SECRETARY LEWIS’ CALLS TO MEMBERS FRAZIER AND APPLEWHAITE
One day before Administrative Law Judge Fenton issued his decision on the merits of the unfair labor practice complaint against PATCO, Secretary of Transportation Lewis personally telephoned Member Frazier.25 The Secretary stated that he was not calling about the “substance” of the PATCO case;26 rather, according to Frazier, Secretary Lewis said he wanted to make “abundantly clear” that no meaningful efforts to settle the strike were taking place.27 He also expressed the desire of the Department of Transportation for expeditious handling of the matter.28 Frazier responded, “I understand your position perfectly, Mr. Secretary.”29 Hearing that Secretary Lewis intended to call Member Applewhaite as well, Frazier offered to convey the message to his colleague. The Secretary responded, however, that he would make the call himself.30 Frazier then alert*146ed Applewhaite of the Secretary’s imminent communication.31 Frazier also notified the agency’s Solicitor of the call he had received; 32 after discussion, these two concluded that the contact fell within the status request33 and settlement proposal exceptions 34 to FLRA’s ex parte rules.
On being informed that the Secretary of Transportation might telephone to express an interest in expedition, Applewhaite asked his executive assistant to find the FLRA regulation governing briefing schedules and time limits in the appeals process.35 Secretary Lewis did indeed call Applewhaite. The Secretary stated his awareness that FLRA had a backlog of cases, emphasized that PATCO was a very important case, and reiterated that “we do not want to delay it in its decision.”36 Applewhaite, who by this time had been given the pertinent regulation, explained that the Federal Aviation Administration (FAA) would have to file a written request in order to obtain expeditious treatment.37 Secretary Lewis said he was unaware of that requirement and made known his intent to contact FAA’s General Counsel immediately.38 Within hours,39 FAA moved to reduce the time for filing exceptions to the administrative law judge’s decision from the usual 25 days to seven days. Ultimately, FLRA’s members voted to reduce the period to 19 days.
The testimony of Frazier and Applewhaite confirms that Secretary Lewis’ calls were highly unusual. Both stated that they had never before been contacted by a Cabinet member on a pending case.40 Applewhaite also explained that persons seeking status information normally contact the staff in lieu of discussing such matters directly with the members.41 Judge Vittone obviously gave careful scrutiny to the incident but was unable to determine exactly what part the Secretary’s calls played in Frazier’s and Applewhaite’s votes to reduce the filing periods in this case.42
I find these calls exceedingly troubling; equally disturbing is the lingering uncertainty as to how much influence they exert*147ed on the voting to expedite the case.43 I concur, however, in the court’s conclusion that a remand is unnecessary. PATCO has not shown that it was prejudiced by FLRA’s decision to shorten the normal response period by six days. It has failed to disclose, either to the agency or to this court, any evidence it would have adduced or any arguments it would have tendered that could not have been brought forth in the time provided. Accordingly, it has not shown any purpose that would be served by a remand.
That, in my view, is not quite the end of the matter, however. Serious questions remain about the propriety of the Secretary’s actions. The legislative history of the Government in the Sunshine Act makes clear that Congress, in defining the contacts proscribed in adjudicative proceedings, consciously chose the phrase “communication relevant to the merits” to denote a concept broader than simply a communication bearing on “fact[s] in issue.”44 With respect to FAA’s attempt to have the PATCO matter handled more expeditiously than normal, the Secretary’s insistence that the case was very important to the Government, and therefore needed to be dealt with rapidly, was a communication on the merits of that issue.
Agencies, like courts, promulgate rules of practice to assist outsiders in communicating in proper fashion with decisionmakers. These channels are quite adequate to accommodate any information that legitimately could be sought from or provided to those who will judge the case.45 For a high government officer to bypass established procedures and approach, directly and privately, members of an independent decisionmaking body about a case in which he has an official interest and on which they will be called to rule suggests, at the minimum, a deplorable indifference toward safeguarding the purity of the formal adjudicatory process. Regardless of the officer’s actual intent, such a call could be felt by the recipient as political pressure; regardless of its actual effect, such a call could be perceived by the public as political pressure. Either way, the integrity of the process is dealt a sore blow.
III. THE LOVELL-HAUGHTON INCIDENT
The special hearing revealed another contact which, though admittedly brief, presents, to my mind, improprieties similar to those latent in Secretary Lewis’ calls. Malcolm Lovell is the Undersecretary of Labor. One or two days before FLRA announced its decision, Lovell called Chairman Haughton, whom he knows socially and professionally, and enquired when the decision would issue.46 After Haughton replied that he hoped the opinion would be forthcoming very soon, Lovell said, “I hope there won’t be anything embarrassing in it.” 47 Haughton responded, “Well, I may be dissenting.” 48
Because of Lovell’s final remark, his call cannot be relegated to the realm of the inoffensive status inquiry. The legislative history of the Government in the Sunshine Act warns against purported status requests that “in effect amount to an indirect or subtle effort to influence the substantive *148outcome of the proceedings.”'49 Not even indirect or subtle is a statement by the Undersecretary of Labor informing the Chairman of FLRA that he is anxious not only about when the agency’s decision will issue but also about whether it will contain anything “embarrassing.”50 While 30 years’ acquaintance51 readily explains why Haughton took the call, it hardly affords license for the impropriety that ensued. I accept Judge Vittone’s finding that this incident had no influence on the vote ultimately cast,52 especially in view of the evidence indicating that Haughton’s position had essentially solidified before he spoke with Lovell.53 If, however, executive officials indeed have no more respect for the inviolability of the formal adjudicatory functions of independent agencies than has been exhibited in this case, then the designation “independent” is in grave danger of becoming an empty title.
IV. THE APPLEWHAITE-SHANKER DINNER
On September 21 — when the administrative law judge’s decertification recommendation was under submission to FLRA, and the members were intensely engaged in attempting resolution of the important and difficult questions presented — Albert Shanker extended, and Member • Applewhaite accepted, an invitation to dinner. Shanker is the President of the American Federation of Teachers and a member of the Executive Board of amicus curiae AFL-CIO; his strong opposition to decertification of PATCO had been well-publicized.54 The last 15 minutes of their dinner were deliberately utilized by Shanker as the opportunity to advocate his view of the merits of the PATCO case in an effort to persuade Applewhaite to vote favorably to Shanker’s position.55 At no time did Applewhaite attempt to put a stop to Shanker’s ex parte inducements.56
I pause only briefly over Shanker’s conduct. His deliberate crusade to sway through private importunity the decision of one acting as judge in a pending case is so far beyond the pale of legally tolerable activity that even the most caustic criticism could not overstate the magnitude of the impropriety. Suffice it to say, I join in the court’s conclusion that Shanker was, beyond cavil, an interested party, and in its condemnation of his behavior as an egregious violation of the APA. Far more necessitous of extended comment, in my view, is the conduct of Member Applewhaite. This court should not hesitate to allocate blame squarely where it belongs: at the doorstep of one acting as a judicial officer who, with a solemn responsibility to preserve both the fact and appearance of complete impartiality, first subjected himself to a palpable risk of contamination, and then made no effort to arrest forbidden advocacy when it came.
I cannot accede to the assertion that, by itself, a private dinner engagement between Applewhaite and Shanker was not improper.57 I would have thought it unnecessary this late in the day to defend the precept that one who judges should avoid even the appearance of impropriety.58 *149Shanker was a prominent labor official who had been vocal in his partisanship of PAT-CO’s cause;59 moreover, the powerful labor organization on whose Executive Board he sat was amicus curiae in the case. Can the public really be expected to believe in the fairness and neutrality of the agency’s formal adjudicatory processes when one of its decisionmakers permits an outspoken, highly visible official of a participating union to wine and dine him during deliberations on the case?60
My brethren find justification for Applewhaite’s assent to Shanker’s invitation by observing that a judge must have friends.61 It seems to me that gratification of personal inclination is a sorry reason for one acting in a quasi-judicial capacity to place himself in a position where his conduct could spark adverse public comment. One given the power to render decisions in formal adjudicatory proceedings is accorded the highest of honors and dealt the gravest of responsibilities; those who take on this judicial role may no longer participate in the daily intercourse of life as freely as do .others. They have a duty to the judicial system in which they have accepted membership fastidiously to safeguard their integrity — at the expense, if need be, of “neighbors, friends and acquaintances, business and social relations.”62 This is their “part” in their “day and generation,”63 and one who is unwilling to make the sacrifice is unsuited to the office.64
Going beyond questions about the propriety of Applewhaite’s agreement to dine privately with Shanker during the critical deliberative phase of the case, there can be no doubt that their after-dinner discussion of the merits of decertifying PATCO violated the express prohibition of Section 557(d) of the APA. Applewhaite’s failure to “steer the conversation away from PATCO” thus was far more than a mere “indiscretion.”65 The moment that Shanker broached the topic of public employee strikes, Applewhaite should have enjoined conversation on that score. While it might be possible to attribute Applewhaite’s actions in placing *150himself in a compromising position to thoughtless imprudence, his unprotesting submission to blatant ex parte advocacy on the merits of a case then pending before the members defies explanation.
Judge Vittone determined,66 and all parties substantially agree, that' the Shanker dinner had no impact on Applewhaite’s ultimate vote.67 Accordingly, the court concludes, and I agree, that a remand is unnecessary. This cannot obscure the fact, however, that Applewhaite disregarded his statutory obligation to abjure discussions on the merits of the PATCO case with an interested party.68 Such remissness on the part of a powerful and highly-placed administrator deserves, by my estimate, a harsher verdict from this court than “unfortunate.”69
V. CONCLUSION
We are unanimous in our acceptance of Judge Vittone’s several determinations that none of the above-described contacts tainted FLRA’s final decision.70 I fear, however, that in announcing that, we find no reason to send this case back, the court’s opinion comes perilously close to intimating that we discover nothing seriously wrong. Such suggestion, in my view, would be a gross mischaracterization. The record before us may be free of instances of sensational- wrongdoing, but it is filled with a pattern of insidious lapses. The casualness with which interested persons privately approached decisionmakers engaged in formal adjudication; the thoughtlessness with which the decisionmakers exposed themselves to such approaches and permitted them to proceed unchecked; the ignorance of, and unconcern for, the principles that underlie the ex parte rules — all these things signal something fundamentally awry.
The laxness with which FLRA protected the integrity of its adjudicatory processes in this case ought be a matter of deep concern for this court, which routinely is asked to accord substantial deference to the decisions rendered by the agency on questions of considerable import to federal employees. It ought be a matter of even deeper concern to the agency itself. FLRA will have the respect of the public only when its person*151nel have sufficient respect for their especial mission to rebuff any attempt to influence or corrupt it. Ultimately, an agency must be the guardian of its own honor. If it permits interested persons to show contempt for its formal adjudicatory processes by the subversion of ex parte pleas and approaches, then those processes will indeed become contemptible.
APPENDIX
RECOMMENDED FINDINGS OF ADMINISTRATIVE LAW JUDGE JOHN M. VITTONE
On February 16, 1982, the United States Court of Appeals for the District of Columbia Circuit ordered the Federal Labor Relations Authority (FLRA) to hold an evidentiary hearing to determine the nature, extent, source, and effect of any and all ex parte contacts and other approaches that may have been made to any member or members of the Authority while the appeal from the decision of the Administrative Law Judge in Case No. 3-CO-105 was pending before the Authority. The Court’s action was caused by the filing of a Declaration with the Court by J. Paul McGrath, Assistant Attorney General, on December 2, 1981, which described an inquiry by the Department of Justice into the FLRA PAT-CO proceeding. Further, the Court of Appeals ordered the Authority to obtain through the Office of Personnel Management an administrative law judge from a neutral agency to conduct the evidentiary hearing. The Court also ordered the administrative law judge to permit all parties to Case No. 3-CO-105, the Authority and any member thereof, all persons alleged to have contacted any member of the Authority while Case No. 3-CO-105 was pending, and any other person the administrative law judge considers to have an interest in the matter, to participate fully in the hearing, to present evidence, and to recommend findings. Finally, the Court ordered the administrative law judge to transmit to the Court on or before March 19, 1982, the entire file, including the record of the proceeding, the participants’ recommended findings, and the recommended findings of the administrative law judge.
On February 19, 1982, the undersigned administrative law judge was selected by the Office of Personnel Management to preside over the hearing, ordered by the Court of Appeals. A prehearing conference was scheduled for and held on February 26, 1982. Appearances were entered for FLRA Chairman Ronald Haughton, FLRA Member Henry B. Frazier, III, FLRA Member Leon Applewhaite, the Professional Air Traffic Controllers Organization (PATCO), the Federal Labor Relations Authority (FLRA), the Federal Aviation Administration (FAA), the American Federation of Government Employees (AFGE), Anthony Skirlick pro se (a working controller), and a group of working controllers.
After hearing argument from all parties, it was decided that the latter three participants lacked sufficient interest in the subject matter of this proceeding to justify full party status. However, AFGE, Mr. Skirlick, and the group of working controllers were granted amicus status, and were given the opportunity to submit recommended findings at the close of the hearings before the administrative law judge. (Transcript, hereinafter Tr. 37-39)
During the conference, it was also decided that the documents under seal with the Court of Appeals were necessary for a full and complete airing of the ex parte issues and the FAA was ordered to request the Court of Appeals to unseal those documents. On February 26, the Court of Appeals unsealed eight documents and these documents were transmitted to all parties.* Various requests for evidence and witnesses submitted by PATCO were also discussed, and the parties were granted the opportunity to file objections to those requests by March 1. Responses to PATCO’s requests were submitted by Chairman Haughton, Members Applewhaite and Frazier, the FLRA, the FAA and Robert J. Freehling. The PATCO requests were ruled upon in *152the undersigned’s order of March 2, 1982 and at the hearing.
The hearing in this proceeding commenced on March 4, 1982. At the outset of the hearing, Mr. Albert Shanker, through counsel, moved to intervene in this proceeding and this request was granted. At that time, the group of working controllers renewed its motion to fully participate as a party to the proceeding and this request was again denied. (Tr. 191-192) ** Hearings were held from March 4 through March 17. The focus of the hearings was on the period August 3 to November 3, 1981, the period of time that the PATCO case was pending at the FLRA. During this time testimony was received from the following individuals:
FLRA Member Henry B. Frazier, III;
Anthony J. Skirlick, Jr.;
Matthew Shannon;
Robert J. Freehling, Former FLRA Solicitor;
FLRA Member Leon Applewhaite;
Albert Shanker, President of the American Federation of Teachers and United Federation of Teachers;
FLRA Chairman Ronald Haughton;
FLRA Chief Counsel Paul Klein;
Robert Bonitati, Special Assistant to the President for Public Liaison;
FLRA Deputy Executive Director Harold Kessler;
FLRA General Counsel H. Stephan Gordon;
FBI Special Agents Larry Knisley and John Paulisick; and
Holly Hemphill, Executive Assistant to Member Frazier.
During the course of this extensive testimony, it became clear to the undersigned and all parties that the Court’s March 19, 1982 deadline would be difficult, if not impossible, to meet. On March 11, the undersigned filed a request, on behalf of all the parties, that the March 19 date be extended until March 26. The Court of Appeals granted this request on March 16, 1982.
At the close of the hearing on March 17, 1982, a procedural schedule was established which required that the parties and the amicus parties submit their recommended findings by the close of business on March 25. Pursuant to that order findings were submitted by Chairman Haughton, Members Applewhaite and Frazier, Albert Shanker, PATCO, the FLRA and the FAA. The undersigned’s recommended findings now follow.
I BACKGROUND
1. The Federal Labor Relations Authority is composed of three presidentially appointed Members, and administers the Federal Service Labor-Management Relations Statute. 5 U.S.C. § 7104, 7105 (Supp. Ill 1979).
2. The case of Professional Air Traffic Controllers Organization (PATCO) and Federal Aviation Administration, Department of Transportation, FLRA Case No. 3-CO-105 [hereinafter PATCO], was instituted on August 3, 1981, when FAA filed with the General Counsel of the Authority (who has independent investigatory and prosecutorial authority under 5 U.S.C. § 7104(f) (Supp. Ill 1979), an unfair labor practice charge, alleging that PATCO was engaging in a strike in violation of 5 U.S.C. § 7116(b)(7) (Supp. Ill 1979). (Tr. 1639-40)
3. The Authority’s General Counsel issued an unfair labor practice complaint against PATCO, based upon the charge filed by FAA, on August 3. The case was heard before an Administrative Law Judge of the FLRA on August 10 and 11, 1981. The judge issued his decision on August 14, 1981, and the case was thereupon transmitted to the Authority. (Tr. 222, 1639-41, 2047-48)
4. The oral argument held by the Members of the Authority in the PATCO case on September 16, 1981, was the first oral argument ever held by the Members in an unfair *153labor practice case, and was the second oral argument ever held by the Members since the establishment of the Authority. (Tr. 232, 282)
II MEETING BETWEEN MEMBER APPLEWHAITE AND H. STEPHAN GORDON, FLRA GENERAL COUNSEL
1. Mr. H. Stephan Gordon was at all relevant times the General Counsel of the Federal Labor Relations Authority. The FLRA General Counsel was responsible for the prosecution of the unfair labor practice complaint which was issued on August 3, 1981. (Tr. 2333; 5 U.S.C. § 7104) Under the FLRA regulations concerning ex parte communications, the General Counsel is deemed to be an interested person outside the agency in an unfair labor practice proceeding. (5 C.F.R. § 2414.3)
2. On or about August 10, 1981, Mr. Gordon and Member Applewhaite were in Member Applewhaite’s office discussing administrative issues unrelated to the PATCO case. (Tr. 809, 812, 836, 837, 1575, 2345) During that discussion, Ms. Ellen Stern, an attorney with the FLRA Solicitor’s office, entered Member Applewhaite’s office and delivered a memorandum entitled “Decertification of Labor Organization Participating in the Conduct of a Strike in Violation of Section 7116(b)(7) of the Statute” which was prepared at the request of Member Frazier. (Tr. 607-608, 809, 836-38, 1575, 2344; Frazier Exh. 16)
3. The Solicitor’s office is the general legal advisor of the FLRA, including the Members. In addition, the Solicitor represents the Authority and the General Counsel in various kinds of court actions. (Tr. 662-64, 837)
4. Ms. Stern proceeded to discuss her memorandum, which dealt with whether decertification of a labor organization participating in a strike is mandatory or discretionary under the statute, and assuming it is discretionary, what other appropriate disciplinary action may be taken. (Tr. 809-811; Frazier Exh. 16)
5. Mr. Gordon remained in Member Applewhaite’s office during the discussion. (Tr. 809, 811)
6. Member Applewhaite admitted in his testimony that he probably should have asked Mr. Gordon to leave when Ms. Stern came in to discuss the memorandum. (Tr. 838)
7. Mr. Gordon asked Ms. Stern whether other remedies were available and whether she had looked at the legislative history. (Tr. 838, 2345)
8. Mr. Gordon did not ask Member Applewhaite any questions. (Tr. 811, 838, 1576-1577, 2344-46)
9. Member Applewhaite suggested that Ms. Stern do research on the availability of other remedies, and she agreed. (Tr. 809-10, 838)
10. Mr. Gordon did not suggest to Member Applewhaite how Applewhaite should decide the PATCO case or make any argument to Member Applewhaite or Ms. Stern. (Tr. 811, 839)
11. The discussion lasted 10-15 minutes. (Tr. 839, 2345)
12. The discussion concerned the interpretation of the statute, and neither Ms. Stern nor Member Applewhaite indicated any opinion on this subject. (Tr. 2344)
13. This discussion was within the context of the PATCO case. (Tr. 2346)
14. When Member Applewhaite asked Mr. Gordon for his opinion, Gordon replied: “I am a lawyer and I can take any side my client wants me to take. I don’t know which side anybody is on on this” and that was the end of the conversation. (Tr. 2346)
15. The conversation had no effect or impact on Member Applewhaite’s ultimate decision in the PATCO case.
16. Because of the General Counsel’s position in the PATCO case, this conversation may have violated section 2414.2 of the FLRA’s regulations concerning ex parte communications. (5 C.F.R. § 2414.2)
III ANDREW L. LEWIS, JR.
1. Andrew L. Lewis, Jr. is the Secretary of Transportation. (Tr. 258)
*1542. On August 13, 1981, at 9:15 a.m., Secretary Lewis telephoned Member Frazier. (Tr. 258, see PATCO Exh. 3, entry for August 13, 1981)
3. Secretary Lewis stated to Member Frazier that he was not calling about the substance of the PATCO case. (Tr. 258)
4. Secretary Lewis said he wanted the position of the Department of Transportation and the Federal Aviation Administration on the rumors concerning possible settlement efforts of the PATCO strike in the press or the media made clear. (Tr. 258-59) Secretary Lewis wanted Member Frazier to understand that there was no meaningful settlement effort taking place, as far as he was concerned, to settle the strike. (Id.) Secretary Lewis said that the reports one might hear on television or on the radio or read in the newspapers to the contrary, as far as he was concerned, were not true. (Id.)
5. Member Frazier was aware of those reports. (Tr. 331)
6. Secretary Lewis also stated that the Department of Transportation would appreciate expeditious processing of the case in accordance with the rules of the FLRA when the administrative law judge had issued his recommended decision and order. (Tr. 259)
7. Member Frazier replied, “I understand your position perfectly, Mr. Secretary,” because his response was intended to be short. He did not wish to discuss the PATCO case or its merits with Secretary Lewis. (Tr. 259, 413-14)
8. Member Frazier did not understand Secretary Lewis’ call to ask that the case be handled faster than the rules permit. (Tr. 600)
9. Secretary Lewis indicated that he had been advised by his staff to call Member Applewhaite also, whom he understood was available in Washington, D. C., at that time. (Tr. 259) Member Frazier confirmed that Member Applewhaite was available in Washington and that as far as Member Frazier knew the Chairman was not available in Washington on that date. (Id.; see 346)
10. Member Frazier asked Secretary Lewis if the Secretary wanted Member Frazier to convey the Secretary’s message to Member Applewhaite or whether he wanted to call Member Applewhaite himself. Secretary Lewis stated that he would call Member Applewhaite himself. (Tr. 259)
11. The conversation between Secretary Lewis and Member Frazier lasted two or three minutes. (Tr. 347, 409)
12. Member Frazier had never received a call from a Cabinet level official prior to Secretary Lewis’s call, and he perceived such contact as unusual. (Tr. 330)
13. Member Frazier discussed Secretary Lewis’ telephone call with FLRA Solicitor Robert Freehling. (Tr. 449) Member Frazier described the Secretary’s call to Solicitor Freehling as relating to status and settlement. (Tr. 674) Solicitor Freehling advised Member Frazier that the communication from Secretary Lewis did not fall with the ex parte prohibitions in the FLRA regulations. (Tr. 676)
14. Member Frazier has never met Secretary Lewis. (Tr. 348)
15. Member Frazier did not believe that Secretary Lewis was trying to put pressure on him (Tr. 261)
16. On August 13,1981, soon after Member Frazier’s conversation with Secretary Lewis, Member Applewhaite was advised upon arriving at his office by Frazier that Lewis had called Frazier. (Tr. 727)
17. Member Frazier told Member Applewhaite that he had given Secretary Lewis Member Applewhaite’s telephone number and described the conversation he had had with Secretary Lewis. (Tr. 727)
18. Member Applewhaite then advised his executive assistant, Pamela Johnson, that he was expecting a call from Secretary Lewis and requested that she locate the FLRA regulation regarding time limits for processing an appeal from an administrative law judge’s decision. (Tr. 728)
19. Ms. Johnson found the provision pri- or to Secretary Lewis calling. (Tr. 728)
*15520. Secretary Lewis called Member Applewhaite shortly thereafter. (Tr. 729)
21. Secretary Lewis began the telephone conversation by saying that he was aware that the FLRA had a backlog of cases, but that the PATCO case was very important and stated his concern that the decision not be delayed. (Tr. 729).
22. At that point in the conversation, Member Applewhaite interrupted the Secretary to inform him that if he wished to obtain expedited handling of the case, he must comply with the FLRA’s Rules and Regulations. Member Applewhaite then cited the applicable section of the FLRA Rules which require a written request for such action. (Tr. 729)
23. Secretary Lewis stated that he was unaware that papers had to be filed on this matter. (Tr. 729) Member Applewhaite told Secretary Lewis that if papers were not filed, the matter would be handled in its normal course. (Id.) Secretary Lewis stated he would contact his General Counsel right away. (Id.)
24. Member Applewhaite and Secretary Lewis did not discuss any other procedural matters or subjects. (Tr. 729, 874-75, 1021)
25. The conversation lasted 1-2 minutes. (Tr. 730)
26. Member Applewhaite had never received a call from a Cabinet level official prior to Mr. Lewis’ call and he perceived such contact as unusual. (Tr. 860)
27. On August 13, 1981, at 2:19 p.m., the FAA filed a Motion to Modify Time Limits for Filing Exceptions which requested that the time limit be reduced to seven days from the usual 25 days. (Tr. 1719, PATCO Exh. 4(b))
28. On the afternoon of August 13,1981, FLRA Chief Counsel Paul Klein received a telephone call from FLRA Solicitor Robert Freehling indicating that he had received the FAA’s Motion to Modify, and that he wanted Mr. Klein to review a proposed draft order concerning time limits for filing exceptions. (Tr. 2046, 2050, 2061)
29. Mr. Klein received copies of the draft order prepared by Mr. Freehling that same afternoon. (Tr. 1906-1908; PATCO Exhs. 9, 10)1
30. On August 14, 1981, the FLRA General Counsel filed a Motion to Modify Time Limits for Filing Exceptions which requested the time limit be reduced to no more than seven days. (PATCO Exh. 4(c))
31. On August 17,1981, PATCO filed an Opposition to Motions to Limit Exceptions Filing Time and Motion to Extend Such Time which requested that the time limit be extended to 60 days. (PATCO Exh. 4(d); see PATCO Exh. 4(a))
32. At a meeting held on August 18, 1981, in Member Frazier’s office, the Members considered the three pending motions, denied all three motions, and decided instead to reduce the 25-day time period prescribed by the FLRA’s Rules of Practice to 19 days. (Tr. 1642-43; see PATCO Exh. 4(a))
33. At the time of the vote on August 18, modifying the time for filing exceptions to the ALJ’s decision, Chairman Haughton did not know that Secretary Lewis had communicated with either of the two other Members. (Tr. 1673 I-J)
34. Secretary Lewis’ call to Member Applewhaite may have led to the FAA’s filing of a motion to reduce the time period for filing exceptions to the judge’s decision.
35. Secretary Lewis’ call had an undetermined effect on Member Applewhaite’s and Member Frazier’s decision to reduce the time period for filing exceptions to the judge’s decision.
36. Secretary Lewis’ call had no effect on Member Applewhaite’s or Member Frazier’s ultimate decision on the merits of the PATCO case.
IV THE SHANKER-APPLEWHAITE DINNER AND THE FLRA DECISIONAL PROCESS
In the McGrath Declaration, it is reported that Member Applewhaite had dinner with *156a well-known labor leader during the pend-ency of the PATCO case before the FLRA. At this dinner, it was alleged, the labor leader told Member Applewhaite that if he voted to revoke PATCO’s certification, Applewhaite would be unable to obtain employment in the labor field when his FLRA appointment expires. After this dinner, it was alleged that Member Applewhaite’s position on revoking PATCO’s certification began to change. (McGrath Declaration at 4, see also ALJ Ex. 7) The following findings concern the Applewhaite dinner with the labor leader and the changes in Member Applewhaite’s position following the dinner.
A. THE SHANKER-APPLEWHAITE DINNER
1. Albert Shanker has served since 1974 as President of the American Federation of Teachers (“AFT”), AFL-CIO, and since 1964, as President of the AFT’s New York City local, the United Federation of Teachers. (Tr. 1387) As President of the AFT, Mr. Shanker is also a member of the Executive Council of the AFL-CIO. (Tr. 1418)
2. Through various contacts, Mr. Shank-er and Member Applewhaite have become professional and social friends. (Tr. 1419-20, 735) For example, while Mr. Applewhaite was associated with the New York Public Employment Relations Board, he served as a mediator in disputes involving affiliates of the AFT. (Tr. 1391-92) In addition, both men have attended and met at a number of labor-management relations conferences. (Tr. 1391)
3. From August 3, 1981 through September 21, 1981, Mr. Shanker and his union made a series of widely publicized public statements in support of PATCO. (Tr. 1397-1403) The AFT urged the public not to fly and directed its own staff not to fly except in cases of emergency. The AFT also contributed money to a PATCO fund. (Tr. 1398)
4. Mr. Shanker urged repeatedly in public statements that disproportionately severe punishment not be inflicted on PATCO for engaging in its strike. (Tr. 1399-1400) Mr. Shanker spoke to various groups — including a PATCO rally and an address to teachers — on this subject almost every day. (Tr. 1399) He was interviewed about the PATCO strike on a nationally televised news program. (Tr. 1401) Throughout this period, Mr. Shanker reiterated the view that punishment for illegal strikes by public employees should be designed to bring about settlements or deter future illegal activities, but should not destroy the union or the collective bargaining process. (Tr. 1399-1400)
5. Beginning in 1969, Mr. Shanker has authored an opinion column that appears every Sunday in The New York Times in space purchased by the AFT. (Tr. 1401) Since August 3, 1981, Mr. Shanker has published a number of columns discussing the PATCO situation. (Frazier Exhibits 18A-18E)
6. On August 16,1981, Mr. Shanker published a column in The New York Times discussing the federal government’s reaction to the PATCO strike. (Shanker Exhibit 3, see also Frazier Exh. 18(a) through (e)) In this column Mr. Shanker reported that the federal government was refusing to negotiate with PATCO; that heavy fines had been levied against PATCO; and that the government was taking legal action to have PATCO’s status as an exclusive bargaining agent revoked. In the column Mr. Shanker expressed the view that revocation of PAT-CO’s status would be an exceptionally severe punishment. (Tr. 1403)
7. On September 16,1981, the Authority heard oral argument on PATCO’s appeal from the adverse decision of an administrative law judge. The AFL-CIO appeared as amicus curiae. Mr. Shanker was not aware of the AFL-CIO’s participation as amicus curiae in the PATCO proceeding. (Tr. 1418-19) Mr. Applewhaite was aware of the AFL-CIO’s participation in the PATCO case and of Mr. Shanker’s position with the AFL-CIO. (Tr. 909)
8. Mr. Shanker was in Washington, D. C. on September 19, 1981, to participate in the Solidarity Day rally. (Tr. 1388; Frazier Exhibit 18A) Mr. Shanker remained in *157Washington, D. C. during the week of September 20, 1981 in order to attend to a number of business matters. (Tr. 1388-89) Around mid-day on September 21, Mr. Shanker asked his secretary to arrange a dinner appointment with Member Applewhaite that evening. (Tr. 1389-90)
9. Mr. Shanker wanted to have dinner with Member Applewhaite because he felt very strongly about the PATCO case, and very much desired that a settlement be reached between the parties. He wanted to communicate directly to Member Applewhaite sentiments he had previously expressed in public statements. (Tr. 1421; see Shanker Ex. 3; see also Frazier Ex. 18a through e)
10. On the afternoon of September 21, arrangements were concluded for Mr. Shanker to meet Member Applewhaite for dinner at Harvey’s, a restaurant in the District of Columbia selected by Member Applewhaite. (Tr. 1338, 1393) On that same afternoon, September 21, the members of the Authority met to discuss their positions on the PATCO case. (Tr. 229) Member Applewhaite informed Chairman Haughton and Mr. Frazier that Mr. Shanker had called and that Shanker and Applewhaite would be meeting for dinner. (Tr. 736, 1650)
11. Member Applewhaite and Mr. Shanker met at Harvey’s about 6:30 p. m. (Tr. 1393, 739) They talked for about an hour and a half. (Tr. 1394, 739) Mr. Shank-er paid for the dinner. (Tr. 1394) Most of the dinner conversation concerned general topics, such as the Solidarity Day rally and the tuition tax credit referendum to be held in the District of Columbia. (Tr. 1394-96, 741)
12. Near the end of the dinner, Member Applewhaite and Mr. Shanker discussed public employee strikes and the PATCO strike for about fifteen minutes. (Tr. 1396, 1406) At no time during the conversation did Member Applewhaite indicate in any way that he believed it improper for him to discuss the issues surrounding the PATCO case with Mr. Shanker. (Tr. 1459)
13. The two men discussed various local approaches to strikes by public employees, including the requirements of the Pennsylvania and New York laws concerning strikes by government employees. (Tr. 1403-04, 742, 908) Mr. Shanker said that he had visited England after a strike of firefighters and was surprised that the strike had generated little resentment toward unions. (Tr. 1404)
14. Mr. Shanker said that he understood that illegal strikes had to be punished, but he stated his view that the punishment should fit the crime. (Tr. 1405, 1423) He also expressed the view that the revocation of certification as punishment for an illegal strike would be tantamount to “killing a union.” (Tr. 906-07) Mr. Shanker’s comment was a repetition of views that Member Applewhaite had heard in the media and that Applewhaite knew to be the position of organized labor. (Tr. 1036, 1038)
15. Member Applewhaite observed, in closing the conversation, that he was concerned about his prospects for reappointment in July 1982. (Tr. 1407, 744) Mr. Shanker testified that he jokingly said that he could not help secure reappointment because he had no contacts in the White House. (Tr. 1407) Member Applewhaite said that because the PATCO case was hotly contested, he would be viewed with disfavor by whichever side he voted against. (Tr. 1407,1414) Mr. Shanker then said that Applewhaite had no commitments from anyone. (Tr. 1408, 1427, 1460, 744, 904, 1040) Mr. Shanker urged Applewhaite to vote without regard to personal considerations. (Tr. 1408, 1427, 1460) After these remarks the conversation ended, the two men left the restaurant, and parted. (Tr. 1408)
16. Mr. Shanker did not say to Member Applewhaite, in words or substance, “If you vote to revoke the certification of PATCO, you won't be able to get cases as an arbitrator if and when you leave your position in the federal government.” (Tr. 1408, 1409, 744-45) Mr. Shanker did not tell Applewhaite, in words or substance, that Mr. Shanker was speaking “for top AFL-CIO *158officials.” (Tr. 1409, 745) Mr. Shanker did not tell Member Applewhaite that Applewhaite would need labor support in order to be reappointed. (Tr. 1450) Mr. Shanker did not in any way threaten Member Applewhaite during their meeting of September 21.(Tr. 1409, 744-45, 754, 758) Mr. Shank-er did not make any promises of any kind to Member Applewhaite during their dinner of September 21. (Tr. 1409, 754, 758)
17. Mr. Shanker did not offer Member Applewhaite anything of value during the dinner of September 21. (Tr. 1409-10) When Mr. Shanker left Member Applewhaite on September 21, Mr. Shanker did not know how Applewhaite would vote. (Tr. 1427)2
18. During the period from August 3, 1981 through November 3, 1981, Mr. Shank-er did not discuss the PATCO case with either Chairman Haughton or Member Frazier. (Tr. 1432, 1450)
B. THE SEPTEMBER 21 MEETING OF THE MEMBERS
19. Prior to the Shanker-Applewhaite dinner on the evening of September 21, the members of the FLRA met for the first time that day to express formally their respective positions on the PATCO case. The meeting took place in Member Frazier’s office at approximately 2:30 p. m. In addition to the members, Robert Freehling, FLRA Solicitor, and Paul Klein, Chief Counsel of the FLRA, attended the meeting. (Tr. 223, 228, 798, 1646, 1882-83)
20. Messrs. Haughton, Applewhaite and Frazier were in agreement that they should find that PATCO had engaged in a strike and thereby had committed an unfair labor practice (Tr. 228-230, 1954-56, 907, 1646-47) As to the remedy on the case, Frazier took the position that the exclusive recognition of PATCO should be revoked (Tr. 229, 1646); that PATCO would no longer be a labor organization within the meaning of the statute (Tr. 229, 1647); and that it was unnecessary at that time to pass on the question of whether at some future time PATCO could qualify as a labor organization. (Tr. 229)
21. Member Applewhaite also took the position in the meeting on September 21 that the exclusive recognition of PATCO should be revoked, (Tr. 229-30, 1647, 1955-1956; Frazier Exhibit 17;3 Frazier Exhibit 26) Member Applewhaite also took the position that PATCO would no longer be a labor organization within the meaning of the Statute. (Tr. 229, 1647) However, Member Applewhaite did not believe that revocation was a severe enough penalty, and suggested that PATCO be barred for a specified period of time (1 to 3 years) from seeking to requalify as a labor organization and therefore seeking to reacquire exclusive recognition for that period of time. (Tr. 229-30, 1647, 1955-56, 813)
22. Mr. Haughton agreed with the other members that an unfair labor practice had been committed and that PATCO was not a labor organization at that time. However, he favored a suspension, not revocation, of PATCO’s collective bargaining status. (Tr. 1647-48)
C. CHANGES IN APPLEWHAITE’S POSITION
23. About 10:00 or 10:30 p. m., on September 21, Chairman Haughton was awakened by a telephone call from Member Applewhaite, who immediately began discussing PATCO. He discussed an approach which was designed to achieve reinstatement of the fired air traffic controllers. It was Haughton’s understanding that Applewhaite was considering taking the position that he described over the phone. (Tr. 1651, 1742-44, 1824)
*15924. On that same night, Mr. Applewhaite telephoned Chief Counsel Klein. Applewhaite mentioned the dinner with Shanker. In addition, Applewhaite and Klein discussed possible remedies in the PATCO case, including reinstatement of the controllers, suspension of PATCO’s dues checkoff, and imposition of a trusteeship. These remedies were not discussed at the earlier meeting of the members on September 21. The conversation lasted approximately 40 to 45 minutes. (Tr. 819, 1885, 1888, 1970-72) From the afternoon before the dinner to the evening after the dinner, Member Applewhaite had moved from his stated position of revocation with a time ban to consideration of a position designed to reinstate the striking controllers with the FAA.
25. On the morning of September 22, Member Frazier went to Member Applewhaite’s office to inquire how the dinner with Mr. Shanker went. Member Frazier testified that Member Applewhaite said to him, “Hank, I can’t vote to revoke the certification of PATCO.” This change surprised Member Frazier. (Tr. 237) Member Frazier testified further that Applewhaite said that the dinner with Mr. Shanker had been a pleasant social occasion for at least the first hour and twenty minutes. During the last ten minutes of the dinner, the conversation turned to PATCO. (Id.) According to Member Frazier, Member Applewhaite reported that Mr. Shanker had said to Applewhaite that if he voted to revoke the certification of PATCO, he would not be able to work as an arbitrator when he left the government, and that Mr. Shanker was speaking for top officials in organized labor. (Tr. 237-238) Further, Member Applewhaite allegedly stated that his conclusion regarding his PATCO vote was tentative, but that he was leaning against revocation at that time. (Tr. 239)
26. Member Applewhaite denies that he made the above described comments to Member Frazier on September 22 or any other time. (Tr. 747-752) However, whether through miscommunication on the part of both parties, misunderstanding by Mr. Frazier, or misstatement by Member Applewhaite, Member Frazier left that meeting with a clear belief that the discussion at the Shanker-Applewhaite dinner had caused Member Applewhaite at least to consider less stringent remedies than he had raised at the September 21 meeting of the members.
27. Member Frazier then contacted Paul Klein, Chief Counsel of the FLRA, and asked him to prepare a draft concurring and dissenting opinion for him, in addition to preparing a lead decision that Frazier had requested earlier. Frazier told Klein that the request was made because Member Applewhaite might switch his vote in the case. (Tr. 239)
28. Member Frazier also informed his executive assistant, Holly Hemphill, about Member Applewhaite’s tentative decision not to join Frazier. Mrs. Hemphill was instructed to begin working on a concurring and dissenting opinion. (Tr. 2888-90; Frazier Ex. 33)
29. Between September 22nd and October 9th, Member Applewhaite and Chairman Haughton exchanged draft proposals and talked both in person and over the telephone regarding the appropriate remedy in this case. For over two weeks, Member Applewhaite was trying to reach an agreement with the Chairman that involved a penalty other than revocation, either personally or through his representative, Mr. Klein. (Tr. 1655-56, 1834, 1836, 1902-03, 825-28, 1847-49, 1878-81, 1964-68; Frazier Exhibits 19, 28, 29, 30, 31)
30. The Chairman received from Member Applewhaite a draft of a proposed opinion on or about October 5. (Frazier Ex. 19; see also Frazier Exhibits 28, 29, 30, and 31; Tr. 1655) The Chairman also discussed remedies with Paul Klein, Applewhaite’s principal draftsman and representative when Applewhaite was out of town. The discussions and proposed drafts were attempts by Member Applewhaite to reach an agreement with Chairman Haughton on a position that did not involve revocation of PATCO’s certification. (Tr. 1655-57)
*16031. When Chairman Haughton reviewed Member Applewhaite’s draft he revisited an issue that he had decided earlier, mainly whether suspension amounted to revocation. He discussed the matter with Klein on at least October 5 and 6. (Tr. 1657, 1834) Although discussions between Applewhaite, Haughton, and Klein involved seeking an accommodation on remedies, Haughton concluded on October 6th or 7th that he could not accept Member Applewhaite’s concept of suspension. Chairman Haughton had determined that suspension amounted to a revocation of certification, and he therefore rejected this approach for the same reasons he stated at the September 22 meeting. At that point, Chairman Haughton assumed that he would have to be prepared to dissent from a majority decision in favor of revocation. (Tr. 1657-58)
32. October 6, Member Applewhaite told Mrs. Hemphill, Frazier’s assistant, that he was having trouble getting together with Chairman Haughton on a decision. Mrs. Hemphill testified that she responded, in a joking manner, that she would be happy to have him join them. He replied, well, maybe so. (Tr. 2891)
33. When Mrs. Hemphill realized that Member Applewhaite was serious, she asked him whether he might want to talk with Member Frazier directly. Member Applewhaite responded that he would. Mrs. Hemphill then made arrangements for Frazier to telephone Applewhaite in New York City, for which he was leaving that day. (Tr. 2892; Frazier Ex. 34) Mrs. Hemphill informed Member Frazier of Member Applewhaite’s request for a telephone call.
34. Member Frazier made the telephone call to New York on October 7. (Tr. 249; Frazier Ex. 36) During the telephone call Member Applewhaite indicated to Member Frazier that it did not appear that Applewhaite and Chairman Haughton would be able to get together. It looked like Member Applewhaite would have to come back to a position in favor of revocation of certification. (Tr. 249) The conversation lasted 12 minutes (Frazier, Ex. 36, p. 4)4
35. Member Frazier informed Mrs. Hemphill of Member Applewhaite’s change in position on October 7. (Tr. 2894)5
36. On the 8th and 9th of October, Member Applewhaite made his last attempts to reach an agreement with Chairman Haughton. The first was a telephone call on October 8th in which they again discussed a range of penalties other than revocation. (Tr. 1009-10) The second was on October 9th, in a private meeting in the afternoon among Member Applewhaite, Chairman Haughton and Chief Counsel Klein, at which they once again discussed a range of penalties other than revocation. A suspension of PATCO’s recognition for a certain period was the central element in all of Member Applewhaite’s proposals, but Chairman Haughton could not agree to that remedy. (Tr. 825-828, 1878-81) Their negotiations broke down in the late afternoon on October 9th.
37. Member Applewhaite told Mrs. Hemphill on October 9 that he would indeed return to a position in favor of revocation. (Tr. 2894, 828)6
D. APPLEWHAITE-FREEHLING DISCUSSIONS
38. On September 22 and September 28 Member Frazier advised Member Applewhaite that he should discuss with Solicitor Robert Freehling the implications of the dinner with Mr. Shanker. (Tr. 239, 242, 534, 666-668) Member Applewhaite dis*161cussed the Shanker dinner with Solicitor Freehling on September 28. (Tr. 756)
39. Member Applewhaite sought from Mr. Freehling his advice as to the legal ramifications of a hypothetical case where a labor leader from New York, who had been a close friend socially and professionally over a period of years met socially with Member Applewhaite and made mention of the PATCO matter. (Tr. 668-72, 756-759)
40. Mr. Freehling advised Member Applewhaite that if there were promises of benefit or threats at the dinner meeting, a crime had occurred, and report must be made to the Office of Professional Responsibility in the Justice Department. (Tr. 669, 698-99) Mr. Freehling advised Member Applewhaite on the FLRA rules on ex parte contacts, explaining precisely what .the rules say, what an ex parte contact is, what the exceptions are and what is required if there is an ex parte contact. (Tr. 669-670)
41. Mr. Applewhaite did not disclose the details of the conversation between Applewhaite and Shanker concerning PATCO. (Tr. 668-672) Mr. Freehling never asked Member Applewhaite if his position in the PATCO case had changed as a result of the Applewhaite-Shanker dinner. (Tr. 695)
42. Mr. Freehling did not advise Member Applewhaite as to whether the Applewhaite-Shanker dinner was a problem. Mr. Freehling did suggest that Mr. Applewhaite discuss the matter with the other members. (Tr. 697)
43. On September 28, Member Applewhaite told Chairman Haughton that he had discussed the Shanker dinner with Mr. Freehling and that Mr. Freehling had advised that there was no problem concerning the conversation with Mr. Shanker regarding the' PATCO case. Mr. Applewhaite did not discuss with Chairman Haughton the possibility of disclosing the PATCO discussion at the Shanker-Applewhaite dinner in the final PATCO decision of the FLRA. (Tr. 1682, 1729)
44. Member Frazier was not present during this conversation between Member Applewhaite and Chairman Haughton. (Tr. 1653-54, 1730-31, 1832-33) Chairman Haughton had no conversations with Member Frazier or Mr. Freehling about the Applewhaite-Shanker dinner meeting. (Id.) Chairman Haughton does not recall any conversation with Member Applewhaite, at which Member Frazier was present, concerning the Shanker-Applewhaite dinner. (Id.)
45. Member Frazier later asked Mr. Freehling whether Member Applewhaite had discussed the Shanker dinner conversation with him. Mr. Freehling advised that he had and that Member Applewhaite had concluded that there were no problems involved. (Tr. 244)
E. THE ISSUANCE OF THE DECISION
46. By October 19, all three members had drafted their final opinion for the PAT-CO case. Drafts were exchanged among the three members. Each wrote responses to the arguments of the others. Each polished his own draft. (Tr. 250-51, 2904)
47. The final opinions of the members were issued on October 22, 1981. In that decision, the members found that PATCO had committed an unfair labor practice in violation of the Federal Service Labor-Management Relations Statute. (5 U.S.C. § 7101) Members Frazier and Applewhaite found that the violation required the revocation of PATCO’s exclusively recognized representation of the air traffic controllers as a nationwide collective bargaining unit. Chairman Haughton dissented from the remedy. He found the record to be incomplete with respect to the evidence bearing on the remedy, and stated that he was unable to determine what remedy was warranted.
48. Member Applewhaite was interviewed by FBI agents Larry Knisley and John Paulisick on October 22 at about noon. (Tr. 851, 2415) Member Applewhaite told the FBI agents basically the substance reported in their FBI report about the interview. (ALJ Ex. 1) Despite Member Applewhaite’s testimony to the contrary, he did in fact tell agents Knisley and Paulisick *162that he considered the Shanker dinner an ex parte contact; that it was his policy to advise the other two authority members about ex parte contacts; that he never changed his position following the dinner; that he never opposed decertification of PATCO; that his position regarding PAT-CO fell between the two extremes of the other two members; that he desired a three-year suspension for PATCO, which he reduced to a suspension of one year; and that the other two Authority members lied to him about their positions regarding PAT-CO. (Tr. 2427-29, 2435-36, 2817)
49. Following the FBI interviews, Member Applewhaite reported to Chairman Haughton that the agents had praised him for his courage regarding the Shanker dinner and the PATCO case. (Tr. 1855-56, 2437) In fact the FBI agents did not praise Member Applewhaite for his conduct regarding the PATCO matter.
50. Member Frazier testified, that in his opinion the Shanker-Applewhaite dinner did not have an effect on Member Applewhaite’s ultimate decision in the PATCO case. (Tr. 586)
51. 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.
52. Mr. Shanker is associated with the AFL-CIO which was an amicus curiae party in the PATCO proceeding. Counsel for the AFL-CIO participated in the oral argument before the FLRA on September 16, 1981. (See FLRA decision of October 22, 1981, at 3.) Therefore, Mr. Shanker may be an interested person within the meaning of the FLRA regulations (5 C.F.R. § 2414.2 and § 2414.3) concerning ex parte communications.
53. The Shanker-Applewhaite dinner may have been a prohibited ex parte communication. (5 C.F.R. § 2414.2)
V APPLEWHAITE’S DISCUSSION OF PATCO AT A POLITICAL FUNDRAISER
In the McGrath Declaration, it is reported that Member Frazier stated that Member Applewhaite discussed the PATCO case with individuals at a Republican fundraising function in New York City on October 6, 1981. Further, Member Frazier stated that Member Applewhaite had been assured by one or more persons at the fundraiser that if he alienated labor by his vote, he could find many opportunities available to him in the private practice of law in New York. (McGrath Declaration at 4, ALJ Ex. 7 at 3). The following findings concern the events of the Republican fundraiser:
1. On October 6, 1981, Member Applewhaite attended a Republican fundraising dinner called “Republican Follies” at the Waldorf Astoria Hotel in New York City. The purpose of the dinner was to introduce gubernatorial candidates. Approximately 200-300 people were present. Member Applewhaite knew at least 50-75 people at the dinner with whom he spoke. (Tr. 763; PATCO Ex. 12)
2. Member Applewhaite has no knowledge that anybody from the Executive Branch attended. (Tr. 921)
3. Upon learning of Applewhaite’s status as a Member of the Federal Labor Relations Authority and its jurisdiction, persons expressed differing views with regard to the PATCO revocation matter, such as “they ought to be decertified” and “I think the President is wrong.” (Tr. 764)
4. Member Applewhaite responded by making statements such as “Well, there are legal ramifications to both and they have to be studied and decided.” (Tr. 764)
5. People would comment to Member Applewhaite that he has “got to make a tough decision.” (Tr. 764-65)
6. Member Applewhaite testified that at the Republican Fundraising dinner he did not discuss the substance of the case, and no promises were made to him relating to the decision he might make on the PATCO case. (Tr. 765-66)
*1637. During Member Frazier’s telephone conversation with Member Applewhaite on October 7, Member Applewhaite stated that he had gone to New York for a political fundraiser. At the event, according to Mr. Frazier, Applewhaite said that he had spoken with acquaintances about PATCO and the personal ramifications of this vote. One of the individuals at the fundraiser told Applewhaite that because he was a member of the New York Bar, he could always practice law in New York if he was not reappointed to the FLRA. (Tr. 250, 2430-32; ALJ Ex. 1, ALJ Ex. 7)
8. This call lasted 12 minutes. Member Applewhaite does not recall any details of the phone call, but does recall that he told Frazier why he was in New York. (Tr. 1082, 1257, Frazier Ex. 36)
9. There is no evidence of record that any promises were made to Member Applewhaite by any persons at the fundraiser to the effect that if he voted for decertification he would have a substantial attorney position available to him.
10. There is no evidence of record that any conversation Member Applewhaite had at the “Republican Follies” had any impact on his decision in the PATCO case. (Tr. 765, 767) Even Member Frazier testified that in his judgment the conversations Member Applewhaite may have had at the fundraiser on October 6 had no impact on Member Applewhaite’s decision in the PAT-CO case. (Tr. 584-85)
VI APPLEWHAITE’S REAPPOINTMENT
In the McGrath Declaration, the Court was advised that Member Frazier claimed to have been told by Member Applewhaite that, as a result of the dilemma weighing on his consideration of the PATCO case, Member Applewhaite made an inquiry into whether his reappointment to the FLRA was likely, but learned that no commitment for reappointment could be secured. (McGrath Declaration at 4) Frazier advised the FBI that Applewhaite told him that he (Applewhaite) had made an effort to obtain from “an unknown administration official a commitment for reappointment to the FLRA when Applewhaite’s term expired in July of 1982.” Further, Frazier told the FBI that Applewhaite acknowledged that he could not obtain the commitment. The following recommended findings concern Member Applewhaite’s efforts concerning his reappointment to the FLRA, his desire to become Chairman of the FLRA, and his contacts with Administration officials.
A. Contact with Ed Allison
1. On August 6, 1981, pursuant to prior arrangements made in early or mid-July 1981, Member Applewhaite met with Mr. Ed Allison, Administrative Aide to Senator Paul Laxalt of Nevada. The purpose of the meeting was to discuss Member Applewhaite’s qualifications and the fact that a Republican had not been named as Chairman of the Authority. (Tr. 724, 1096)
2. This meeting took place at Mr. Allison’s office in the Russell Senate Office Building and lasted approximately 15 minutes. (Tr. 724-725, Frazier Ex. 4)
3. At the August 6 meeting, Mr. Allison and Member Applewhaite discussed the latter’s experience-in the labor relations field and his administrative background. Mr. Allison requested a copy of Member Applewhaite’s biography. Allison concluded the meeting by informing Applewhaite that he would advise Senator Laxalt of Applewhaite’s credentials and that, if appropriate, further contact would be made with the White House concerning Applewhaite’s appointment to the chairmanship of the FLRA. (Tr. 725)
4. During the August 6 meeting, there was no discussion of Member Applewhaite’s reappointment for another term on the FLRA nor did the two men discuss the PATCO case. (Id.)
5. On or about August 13,1981, Member Applewhaite stopped by Mr. Allison’s office to deliver the promised biographical sketch. He was in the office for no more than 3 minutes and delivered the material to Mr. Allison’s secretary. The PATCO case was not mentioned in this second visit to Mr. Allison (Tr. 725-6, 1096-97, Frazier Ex. 4)
*1646.There is no evidence of record or indication of any kind that the meeting and conversation between Member Applewhaite and Mr. Allison had any effect on Member Applewhaite’s deliberations or decision in the PATCO proceeding.
B. Contact with Robert Bonitati
1. Robert F. Bonitati serves as Special Assistant to the President for Public Liaison. In that position, Mr. Bonitati serves as liaison to organized labor. (Tr. 2072-2073)' Member Applewhaite was aware of Mr. Bonitati’s duties. (Tr. 1134)
2. In July 1981 and on August 4, 1981, Member Applewhaite telephoned Robert F. Bonitati to advise Mr. Bonitati that the services of the Federal Service Impasses Panel (FSIP) were available as a possible vehicle for settlement of the PATCO labor dispute. (Tr. 2080-2081, 2084-2086)
3. Both conversations were very brief and concerned only the Federal Service Impasses Panel (Id.) The August 4 conversation lasted one or two minutes. (Tr. 2086) Mr. Bonitati was aware of the availability of the FSIP before Member Applewhaite called. (Tr. 2085) Member Applewhaite and Mr. Bonitati did not discuss the merits of the PATCO labor dispute during the July or August 4 telephone conversations. (Tr. 2081, 2086)
4. On October 9, 1981, Mr. Bonitati’s secretary placed a telephone call to Member Applewhaite at 10:55 A.M. The purpose of the call was to inquire when the PATCO decision would be announced because the FLRA had announced previous decision dates that had proved to be incorrect. The call was not completed and Mr. Bonitati did not talk with Applewhaite. (Tr. 2088-2089; Tr. 2142, 2159, 2173, FAA Ex. 2)
5. Later that same day, October 9, Mr. Bonitati and Member Applewhaite met at a reception following the swearing in of Mr. Malcolm Lovell as Undersecretary of Labor. This meeting was the first time that both men had met in person and the meeting lasted only a few minutes. (Tr. 20-21, 2090-91, 2156, 2158)
6. At the Lovell reception, Mr. Bonitati told Member Applewhaite that he had tried to reach him that morning and that he wanted to know why the FLRA kept putting out the story that it was going to announce its decision within the next week. Member Applewhaite responded that the decision would be out the following Thursday or Friday at the very latest. Member Applewhaite also indicated that there were some problems with Members on leave and that everybody was not at the Authority at the same time to do all the necessary paperwork.7 (Tr. 2091-92, 2100, 2142-45)
7. Member Applewhaite’s prediction as to the timing of the PATCO decision proved to be incorrect. (Tr. 2092) Member Applewhaite and'Mr. Bonitati did not discuss the merits of the PATCO revocation case during their conversation on October 9, 1981 (Tr. 2093, 720) Member Applewhaite did not tell Mr. Bonitati anything concerning the substantive positions then being taken by any of the members. (Tr. 2093)
8. Mr. Bonitati did not attempt to obtain any information about the substance or merits of the PATCO proceeding pending at the FLRA during any conversation with Member Applewhaite. (Tr. 2186) Mr. Bonitati did not attempt to influence the FLRA decision in his contacts with Member Applewhaite, or express a preference as to how the decision should come out. (Tr. 2186)
9. About mid-November 1981 and after the PATCO decision had been issued, Applewhaite and Bonitati met for lunch. During this luncheon meeting, there was no discussion of PATCO, the PATCO proceeding, or Member Applewhaite’s reappointment. (Tr. 2133-2136, 719-720)
10. During the pendency of the PATCO case before the FLRA, Mr. Bonitati did not *165discuss with Member Applewhaite the latter’s reappointment to the FLRA or Member Applewhaite’s chances of becoming Chairman of the agency. (Tr. 2095-97, 2137). The only time that Member Applewhaite’s possible reappointment was raised with Mr. Bonitati was in a brief comment at the close of a meeting between both individuals on January 6, 1982. (Tr. 2097-98)
11. 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. (Tr. 583-586)
12. There is no evidence of record that Member Applewhaite’s possible reappointment was discussed by him with anyone associated with or representing the Administration prior to November 3, 1981. (Tr. 2096)
13. There is no evidence of record that Member Applewhaite held out his vote in PATCO as deserving consideration by the Administration with respect to his possible reapportionment or designation as Chairman.
14. Member Applewhaite’s contacts and conversation with Mr. Bonitati did not affect in any manner Applewhaite’s decision in the PATCO case.
VII OTHER CONTACTS
A. KENNETH BLAYLOCK
1. Kenneth Blaylock is President of the American Federation of Government Employees. (Tr. 262) Mr. Blaylock sits on the Executive Council and on the Public Employees Department of the AFL-CIO. (Tr. 576, 1411)
2. Between August 3, 1981 and October 22, 1981, Chairman Haughton had three contacts with Kenneth Blaylock. (Tr. 1673 D-E)
3. Chairman Haughton has known Kenneth Blaylock for a number of years in a professional capacity. (Tr. 1670-71)
4. During August or early September, the time Chairman Haughton was at Martha’s Vineyard, he had a telephone conversation with Kenneth Blaylock. Mr. Blaylock reported on his efforts to get the PAT-CO case settled. He mentioned that he had talked with Secretary Lewis, Donald Devine, of the Office of Personnel Management, and Robert Poli, President of PAT-CO. (Tr. 1673-D)
5. Chairman Haughton, on his way home from work one evening, met Mr. Blaylock for a drink at the International Inn during the time the PATCO case was before the members. Mr. Blaylock reported on settlement efforts. He did not inquire about what the authority was doing with the case, nor did he suggest what ought to be done. (Tr. 1673-E)
6. Mr. Blaylock telephoned Chairman Haughton a day or two prior to October 22, 1981. Mr. Blaylock inquired as to the status of the PATCO case, telling Chairman Haughton he did not care which way the decision went, but that the decision ought to be issued. Chairman Haughton replied that he hoped the decision would be issued soon. (Tr. 1673E)
7. The contacts between Mr. Blaylock and Chairman Haughton had no effect on Chairman Haughton’s decision in the PAT-CO case.
8. On or about September 3, 1981, Mr. Blaylock called Member Applewhaite and stated that he was trying to reach the Members and said that he realized that Member Applewhaite was the only one of the three Members in the office at that time. (Tr. 731, 890)
9. Mr. Blaylock stated during the telephone conversation that he was trying to reach the three authority members to advise them that settlement discussions were taking place in the PATCO strike situation. Member Applewhaite stated that he assumed there were ongoing settlement efforts, but that such discussions had no bearing on the case before the authority. Mr. Blaylock agreed and stated that he understood Mr. Applewhaite’s position. Blaylock *166then inquired as to the status of the PAT-CO case. Mr. Applewhaite responded that there were several motions pending including a motion for oral argument. He indicated that oral argument was a possibility, but no decision had been made with respect to granting oral argument as of that date. Blaylock concluded the conversation by stating that he would be talking to the other two Authority members. (Tr. 731, 732, 735, 890)
10. Member Applewhaite had no other conversations with Mr. Blaylock, in person or by telephone, during the pendency of the PATCO matter. (Tr. 735)
11. Mr. Blaylock’s conversation with Member Applewhaite had no effect on Member Applewhaite’s decision in the PAT-CO case. (Tr. 735)
12. Member Frazier had at least three telephone conversations and one personal meeting with Mr. Blaylock during the pend-ency of the PATCO case. (Tr. 262)
13. During an August 17, 1981, telephone conversation initiated by Mr. Blaylock, Mr. Blaylock asked Member Frazier if they could meet so that he could brief Member Frazier on his efforts to settle the PAT-CO case. Mr. Blaylock and Member Frazier agreed to meet later that afternoon. (Tr. 262-263)
14. At the meeting, Mr. Blaylock asked about the status of the PATCO case and Member Frazier told him that the FLRA had just gotten the case from the judge on the preceding Friday (August 14). (Tr. 263)
15. Mr. Blaylock told Member Frazier that the President of the AFL-CIO had asked him to serve as an intermediary mediator to try to get the parties together to settle the case. (Tr. 263, 603)
16. Mr. Blaylock told Member Frazier that in his efforts to seek a settlement of the FAA/PATCO matter it was his intention to meet with Mr. Poli of PATCO, Secretary Lewis and other officials of DOT and FAA, the General Counsel of the FLRA, and possibly Mr. Donald Devine, the Director of the Office of Personnel Management. (Tr. 263, 603)
17. Mr. Blaylock asked Member Frazier what he thought of what Mr. Blaylock had outlined. (Tr. 264)
18. Member Frazier told Mr. Blaylock that it was the policy of the Federal Labor Relations Authority to encourage informal settlements among the parties of unfair labor practice cases, but that meant settlement by all the parties. Member Frazier also said that the settlement would have to be submitted to the Members of the Federal Labor Relations Authority for approval. Member Frazier advised he would do his best to promote the policy to encourage settlements of unfair labor practices so long as the settlement was consistent with the purposes and policies of the statute. (Tr. 264, 603)
19. Member Frazier reported the contents of his conversation with Mr. Blaylock to Mr. Freehling, the Solicitor of the FLRA. (Tr. 265; see Tr. 673)
20. Mr. Freehling and Member Frazier agreed that the conversation involved an inquiry concerning the status of the case and an inquiry concerning settlement of the case and, therefore, it was permitted under the Authority’s rules. (Tr. 265, PATCO Exh. 2, 5 C.F.R. § 2414.6(b), (d))
21. On two or three other occasions, Mr. Blaylock telephoned Member Frazier to give him a status report on Mr. Blaylock’s efforts to settle the PATCO matter. (Tr. 265-66, 603-04)
22. In each of those conversations, Mr. Blaylock told Member Frazier whom he had spoken with or whom he was attempting to speak with. Mr. Blaylock also asked in each of the conversations the status of the case, and whether the Authority was about to issue its decision at any time in the near future. (Tr. 266, 604)
23. Member Frazier responded to Mr. Blaylock’s inquiries about the time the decision might issue by telling him that the matter was under active consideration and that the Members were working hard to reach a decision. (Tr. 266)
24. The only .topics Mr. Blaylock raised with Member Frazier. were requests con*167cerning the status of the case and reports to Member Frazier concerning the nature of Mr. Blaylock’s negotiations as an intermediary in an attempt to find a settlement in the case. (Tr. 417)
25. Member Frazier did not believe that Mr. Blaylock was trying to influence his decision in the PATCO case. (Tr. 267)
26. Mr. Blaylock’s conversations with Member Frazier had no effect on Member Frazier’s decision in the PATCO case.
27. Member Frazier did not report to Solicitor Freehling concerning conversations with Mr. Blaylock other than the first conversation because, in Member Frazier’s judgment, the substance of the conversations was the same and Solicitor Freehling’s advice concerning the first conversation would apply equally to the later conversations. (Tr. 268)
B.MALCOLM LOVELL
28. Malcolm Lovell is the Undersecretary of Labor.
29. Chairman Haughton has known Malcolm Lovell for over 30 years. (Tr. 1670) Their relationship is both personal and professional. (Tr. 1670)
30. On October 9, 1981, Chairman Haughton attended the swearing-in of Mr. Malcolm Lovell as Undersecretary of Labor and the reception following. (Tr. 1673-B) Several comments, such as “you got a tough case,” were made to Chairman Haughton by people at the reception regarding PATCO, but there was no discussion of the merits. (Tr. 1673-C)
31. A few days or a week after the swearing-in of Mr. Lovell, Chairman Haughton had lunch with Mr. Lovell in the latter’s office. There was a discussion of the PATCO case. Mr. Lovell described it as a “hot case”. Chairman Haughton commented that it was a good case for the Department of Labor to stay out of and that, according to the newspapers, Administration decisions are being made at the highest levels. (Tr. 1673-C) Chairman Haughton testified that that luncheon had no effect on his decision in the PATCO case. (Tr. 1760)
32. A day or two before the PATCO decision issued, Mr. Lovell called Chairman Haughton inquiring when the decision would issue. The Chairman replied that he hoped it would issue soon. Lovell commented that he hoped there would not be anything embarrassing in it. Chairman Haughton replied he might be dissenting. (Tr. 1673-C and D)
33. None of the conversations and meetings between Chairman Haughton and Malcolm Lovell had any effect on Chairman Haughton’s decision in the PATCO case.
C. JOHN LEYDEN
34. John Leyden is the Executive Vice President of the Public Employee Department of the AFL-CIO. (Tr. 1669-70)
35. Chairman Haughton has known John Leyden on a professional basis for three years. (Tr. 1669-70)
36. Chairman Haughton received a phone call from John Leyden a “day or so before October 22” inquiring when “the case was coming out.” Chairman Haughton indicated he hoped it would be soon. This conversation took about 30 seconds. (Tr. 1671-72)
37. On October 27, 1981, five days after the FLRA’s decision in the PATCO case was issued, Chairman Haughton attended a “brown bag lunch” at which John Leyden spoke. John Leyden stated to Chairman Haughton that “I understand you will be hearing from PATCO on your dissent.” The Chairman replied, “they had better hurry up because today is the fifth day.” (Tr. 1672)
38. None of Chairman Haughton’s conversations with Mr. Leyden had any effect on Chairman Haughton’s decision in this case.
D. RICHARD LEIGHTON
39. On October 22, 1981, Chairman Haughton issued a “conditional dissent,” which stated that he would support revocation if PATCO did not satisfy certain conditions within 5 days. On October 27, 1981, *168Chairman Haughton’s executive assistant, Steven Schwartz, was called by unidentified PATCO officials as to their response to the decision, advising that PATCO’s Board of Directors would be meeting that day. (Tr. 1662-3, 1673F, 1752)
40. At approximately 5:00 p. m. on October 27, 1981 Richard Leighton, Counsel for PATCO, spoke with Chairman Haughton. Because Chairman Haughton knew that Mr. Leighton was calling about PATCO’s response to the five-day time period set forth in Chairman Haughton’s October 22, 1981 opinion, he transferred the Leighton call to Schwartz. (Tr. 1673F)
41. Chairman Haughton received that same afternoon, by hand delivery, a letter addressed to him by Mr. Leighton, indicating that copies of the letter were being sent to Members Applewhaite and Frazier. The letter advised Chairman Haughton that PATCO took the legal position that it had until October 29, 1981, not October 27,1981, to file a response to Chairman Haughton’s October 22, 1981 decision, under its interpretation of the FLRA’s regulations. (Tr. 1673F, G, 1753-54; Haughton Exh. 6)
42. The letter did not indicate that PATCO served it on opposing counsel, nor was Chairman Haughton aware of any such service. (Haughton Exh. 6, Tr. 1754-55)
43. The PATCO-Leighton contacts had no effect on Chairman Haughton’s November 3, 1981 decision.
E. DOLPH SAND
44. Dolph Sand is an attorney with the Federal Aviation Administration who was the FAA’s representative in the PATCO revocation proceeding before the FLRA. (Tr. 2195-96; ALJ Exh. 3)
45. Member Frazier telephoned Mr. Dolph Sand on October 28, 1981. (Tr. 459)
46. On October 28, 1981, the FLRA and Department of Justice, representing FAA, were working together to defend the October 22 decision of the FLRA which had been appealed to the Court of Appeals. (Tr. 459-460)
47. The purpose of the call to Mr. Sand was to tell him that a document in the PATCO matter had been served in person on Member Frazier and to ask Mr. Sand whether he would like to pick up a copy since it was being served by mail on FAA. (Tr. 459)
48. Member Frazier did not discuss the underlying merits of the FAA/PATCO case with Mr. Sand when he came by the office to pick up a copy of the document. Mr. Sand picked up the document and left. (Tr. 460)
49. Member Frazier did not ask Mr. Freehling about the propriety of contact with Mr. Sand because Member Frazier’s final decision had issued and it was being defended in Court by FLRA and DOJ. (Tr. 460)
50. On October 29, Mr. Sand telephoned Member Frazier to say that FAA did not intend to do anything in response to the document. (Tr. 460)
51. Harold Kessler serves as Deputy Executive Director of the FLRA. (Tr. 2190)
52. Mr. Kessler is privy to the decisional process in many cases before the FLRA. (Tr. 2228) He frequently provides the members with recommendations as to the outcome of a case and points out problems that may arise with respect to a case. (Tr. 2193)
53. Harold Kessler received many calls from people inquiring as to when the PAT-CO decision would be issued. (Tr. 2196-2200)
54. He had two or three conversations with Dolph Sand, in which Mr. Sand inquired as to when a decision would be issued. (Tr. 2197)
55. Mr. Kessler has had a professional relationship with Mr. Sand for seven or eight years. (Tr. 2195)
56. Approximately one or two weeks before the PATCO decision was issued by the Authority, Mr. Sand called Mr. Kessler and expressed a sense of urgency that the FAA needed the decision to be issued. (Tr. 2196-2197)
*16957. Mr. Kessler told Mr. Sand that Kessler would make sure that Mr. Sand’s sense of urgency was conveyed to the members. (Tr. 2197) There is no evidence that Mr. Kessler actually conveyed this message to the members nor that Mr. Sand’s call had any effect on the decisional process in the PATCO case.
58. Mr. Kessler saw nothing improper in Mr. Sand’s calls to him. (Tr. 2198)
59. No other party to the PATCO proceeding contacted Mr. Kessler. (Tr. 2250)
F. CHIEF ADMINISTRATIVE LAW JUDGE JOHN FENTON
60. On August 4, 1981, Members Applewhaite and Frazier met Chief Administrative Law Judge John Fenton for lunch. (Tr. 327, 722)
61. During that meeting, they discussed procedural aspects of the PATCO matter, but did not discuss the merits of the case. (Tr. 723)
62. Members Frazier and Applewhaite urged Judge Fenton to assign a capable judge to the case and, if possible, to assign the case to himself. (Tr. 327)
63. The FAA/PATCO matter was not before Judge Fenton at the time of the meeting. (Tr. 327)
64. Member Frazier talked to Judge Fenton on several occasions from August 3 through August 14. (Tr. 326-328; PATCO Exh. 3)
65. Members Frazier and Applewhaite never discussed the merits of the FAA/PATCO matter with Judge Fenton. (Tr. 326, 723)
66. Member Applewhaite had no other contacts with Judge Fenton during the pendency of the PATCO case. (Tr. 723)
67. The contacts between Members Frazier and Applewhaite with Judge Fenton had no effect on the decisional process in the PATCO case.
G. MATTHEW SHANNON-ANTHONY SKIRLICK
68. Anthony Joseph Skirlick, Jr., is a radar air traffic controller for the Federal Aviation Administration at the Los Angeles Air Route Traffic Control Center in Palpville, California. (Tr. 351)
69. Mr. Skirlick is a member of the PATCO. (Tr. 351)
70. On or about October 1, 1981, Mr. Skirlick filed a motion to intervene in the PATCO unfair labor practice proceeding pending before the FLRA. (Tr. 354)
71. Matthew D. Shannon was an attorney adviser on the operations staff of the FLRA during the period August 3, 1981, through November 3, 1981. (Tr. 367)
72. In that capacity, it was Mr. Shannon’s major responsibility to review documents filed with the FLRA to ensure that they had been served on all parties and to determine whether the document required immediate attention. This was Mr. Shannon’s major responsibility with respect to the PATCO ease. (Tr. 367-68)
73. Mr. Shannon had no personal contact with anyone in a decision-making capacity with respect to the PATCO ease while it was pending with the FLRA. (Tr. 369)
74. Mr. Shannon is no longer employed by the FLRA. (Tr. 366-67)
75. On October 15, 1981, a telephone conversation took place between Mr. Skirlick and Mr. Shannon. (Tr. 355, 369)
76. The purpose of Mr. Skirlick’s call was to ascertain the status of his motion to intervene. (Tr. 356, 370)
77. Mr. Shannon informed Mr. Skirlick during that telephone conversation that the motion for intervention had been denied. (Tr. 375, 378-79; see PATCO Exh. 6, p. 2, lines 5-9)
78. Mr. Shannon did not tell Mr. Skirlick that the Administration was bringing pressure on the FLRA to issue a decision quickly. (Tr. 371-72)
79. No one inside or outside the FLRA ever indicated to Mr. Shannon that the Administration was bringing pressure on the FLRA to issue a decision quickly. (Tr. 371)
*17080. Mr. Shannon has no personal knowledge of any pressure by the Department of Transportation or the Federal Aviation Administration on anyone in a decision-making capacity at the FLRA. (Tr. 373)
VIII DISCUSSION
In my recommended findings, I have made certain findings which may require some additional explanation. Accordingly, the following discussion is provided to put those findings in perspective.
I have found that the telephone calls on August 13, 1981 from Secretary Lewis to Members Frazier and Applewhaite may have had some undetermined effect on their decision to limit the time for filing exceptions to the administrative law judge’s decision. Both members testified that the calls had no effect on their August 18, 1981 decision. However, the Secretary told Member Frazier that he wanted expeditious processing of the case within the FLRA’s rules and he stated his concern to Member Applewhaite that the case not be delayed. Both members described the Secretary’s call as unusual. Later that same day, August 13, the FAA filed a motion to limit the time for filing exceptions from 25 to 7 days. It is quite likely that the FAA motion was filed in accordance with the advice concerning the FLRA regulations given to Mr. Lewis by Member Applewhaite.
The evidence of record does not permit an evaluation of how much of an effect the calls had on the two members, but I believe that the Secretary’s phone call did play at least some minimal part in their decision to reduce the prescribed 25 day period to 19 days. However, it should be noted that I do not believe that the Secretary’s calls had any effect on the merits of final decision in the PATCO case.
In my findings, I find that the meeting between Member Applewhaite, General Counsel Gordon, and Ellen Stern on August 10, 1981 may have been a prohibited ex parte communication. It is clear that the Stern memorandum concerned the PATCO case. There was no other case pending at the FLRA at that time to which the memorandum could have been related. Mr. Gordon testified that the discussion took place ■within the context of the PATCO case. As noted, Mr. Gordon is the FLRA General Counsel. The General Counsel is defined as a “person outside this agency” when his representative is prosecuting an unfair labor practice proceeding. The General Counsel was responsible for the prosecution of the PATCO case before the administrative law judge. In fact the PATCO case was being heard before the judge on August 10. Even Member Applewhaite testified at that time that he expected exceptions to be filed to the judge’s decision. (Tr. 944) In view of all of the above, and even though Applewhaite and Gordon described the discussion as abstract, the discussion may have been a prohibited ex parte communication. However, the discussion was very short, general in nature, and very early in the processing of the PATCO case. Accordingly, I do not believe that it had any effect upon Member Applewhaite’s deliberations and final decision in the PAT-CO case.
On August 4, 1981, Members Frazier and Applewhaite met with Chief Administrative Law Judge John Fenton at lunch to discuss the procedural aspects of the PATCO case. During that discussion, it was suggested that Judge Fenton appoint a capable judge, preferably himself, to hear the PATCO case. No party has argued in its recommended findings that this luncheon meeting was improper. Further, I do not believe that it had any impact or effect on the FLRA’s decision in the PATCO case. However, that finding does not mean that such practices should be condoned.
It is clearly possible that the special selection or assignment of a judge to a particular case could raise substantial problems. There is no evidence that Judge Fenton’s assignment of the PATCO case to himself raises any problems in this proceeding. However, the practice of agency heads suggesting that a particular judge be assigned to conduct a particular case should be avoided at the FLRA and all other federal agencies. Such a practice may conflict with *1715 U.S.C. § 3105,8 and may raise questions of administrative fairness in those agencies which may attempt to influence the selection of a judge.
Mr. Shanker is closely associated with the AFL-CIO. He is president of one of the AFL-CIO’s affiliated unions and sits on the Executive Council of the AFL-CIO. The AFL-CIO was an amicus curiae party to the proceeding and participated in the oral argument before the FLRA. The AFL-CIO is clearly an interested party in the PATCO proceeding. Therefore Mr. Shank-er may also be an interested party outside the FLRA.
It is for those reasons that the Shanker-Applewhaite dinner may have been an unauthorized communication in violation of the FLRA ex parte communications regulations (5 C.F.R. § 2414). The discussion does not fall within the exceptions contained in 5 C.F.R. 2414.6(d). It is clear that Mr. Shank-er’s message to Mr. Applewhaite was that revocation of certification was a drastic remedy out of proportion to the violation. However, as stated in my findings, I do not believe that the dinner had any effect on the final decision of the FLRA in the PAT-CO case. At the very most, the effect was transitory in nature, and occurred from September 21 to October 9.
The most troubling part of this proceeding has been the conflict between the testimony of Members Frazier and Applewhaite with respect to the Shanker-Applewhaite dinner. On the whole, I find Mr. Shanker’s testimony regarding that dinner to be credible. There is no direct evidence that Mr. Shanker told Member Applewhaite that Applewhaite would not be able to obtain arbitration cases after leaving the FLRA if he voted for PATCO’s decertification. Nor is there any direct evidence that Shanker made any promises or threats to Applewhaite.
Accepting Mr. Shanker’s (and Member Applewhaite’s) version of the dinner events does not resolve the conflict between Member Frazier and Member Applewhaite’s testimony concerning their meeting of September 22, 1981. As stated in my findings, I believe that Member Frazier was troubled by Member Applewhaite’s statements at the September 22 meeting and left that meeting with the impression that the events at the dinner has caused Applewhaite to change his position from revocation to suspension of PATCO’s certification. Whether Mr. Frazier’s impression was the result of a miscommunication between both men, a misstatement by Member Applewhaite, or a misinterpretation by Mr. Frazier, I cannot determine on this record. However, I do believe that Mr. Frazier’s actions following the September 22 meeting was based on an honest concern for the decision-making process at the FLRA.
On the whole, I have found Mr. Frazier’s and Mr. Haughton’s testimony to be credible. On the other hand, Member Applewhaite’s testimony, in substantial parts, was confusing, contradictory, and in some respects, incredible. A review of Member Applewhaite’s testimony demonstrates his sometimes confusing and contradictory testimony. This tendency toward confusion was noted by two witnesses examined by Mr. Applewhaite’s counsel. (See Mr. Shanker’s testimony, Tr. 1433-36, and Agent Knisley’s testimony 2773-74)
With respect to credibility, there are a number of statements by Member Applewhaite which I find difficult to accept. Member Applewhaite disputed many of the statements attributed to him in the FBI report. (ALJ, Ex. 1) However, it is difficult to believe that the report could be so inaccurate. In fact, both agents who interviewed Member Applewhaite testified credibly that it was an accurate reflection of the interview. Member Applewhaite testified that he never thought about reappointment until last December or January, 1982 (Tr. 896, 1176). Yet he discussed the question of reappointment with Chairman Haughton and Member Frazier, and raised *172the subject with Mr. Shanker on September 21. (Tr. 1407, 1681-82, 1246-50) Further, he discussed the possibility of becoming Chairman with Senator Laxalt’s Administrative Aide on August 6, 1981. (Tr. 724-25, 1096-97) Member Applewhaite could not remember the names of friends he spoke with or visited before the FBI interview on October 22. (Tr. 1347-48) Further, Member Applewhaite could not recall any of the details of his 12 minute phone call with Mr. Frazier on October 7. (Tr. 1082) Finally, Member Applewhaite testified that the FBI agents appeared to understand his situation and told him they did not see any problem. (Tr. 1501) In fact, Member Applewhaite told Chairman Haughton that the agents praised him and told him he had courage. (Tr. 1855-56) Agent Knisley denied making any such statements, and it is extremely doubtful that FBI agents praise the people they are investigating. (Tr. 2437)
SUMMARY
Accordingly, it is found that the possible ex parte contacts and approaches described at the hearing did not have any effect on the final decision of the members of the FLRA in the PATCO case.
Respectfully submitted,
/s/ John M. Vittone
JOHN M. VITTONE
Administrative Law Judge
March 26, 1982
. Pub.L.No.95^54, 92 Stat. 1111, 1191 (1978) (codified at 5 U.S.C. §§ 7101 et seq. (Supp. IV 1980)).
. In response to our order of February 16, 1982, Judge Vittone prepared lengthy and detailed recommended findings on numerous incidents within the ambit of our mandate to explore “any and all ex parte communications and other approaches that may have been made to any member or members of FLRA while the PAT-CO case was pending before it.” Professional Air Traffic Controllers Org. v. FLRA, 217 U.S. App.D.C. 256, 260, 672 F.2d 109, 113 (1982). These findings appear as an appendix to this opinion, and hereinafter are cited as “ALJ Findings.”
. ALJ Findings at 6, ¶ 2.
. Id. at 6, ¶¶ 2, 4.
. Id. at 6-7, ¶¶ 4-12; Transcript [“Tr.”] 839, 2345.
. Tr. 809, 838, 1576-1577.
The finding that “neither Ms. Stern nor Member Applewhaite indicated any opinion on this subject,” ALJ Findings at 7, ¶ 12, appears to be a slight misreading of the cited portion of Gordon’s testimony. What Gordon said was that “[n]either Ms. Stern nor Member Applewhaite indicated in any way which way Member Applewhaite wanted to come out.” Tr. 2344 (emphasis added). Applewhaite testified, “I asked her, is decertification the only remedy possible? So she said, well, that seems to be the way it would go.” Tr. 809-810. This testimony is consistent with the fact that Stern’s memorandum, submitted as Frazier Exhibit 16, not only set out the problem and surveyed the relevant statutory language and legislative history but also reached a specific conclusion: The Authority possessed discretion to impose a lesser penalty than decertification only when the union had not actively encouraged and participated in illegal strike activity. See Frazier Ex. 16 at 7.
. AU Findings at 7, ¶ 9; Tr. 810, 838-839. Applewhaite was interested not only in the remedial provisions of other federal labor laws but also in the treatment of public employee strikes in various state statutes.
. ALJ Findings at 7, ¶ 7.
. Tr. 811.
. ALJ Findings at 7, ¶ 7.
. Tr. 2346.
. ALJ Findings at 7, ¶ 14.
. The conversation took place on August 10, 1981, one week after the General Counsel had issued the unfair labor practice complaint, and on the very day the case was being heard on the merits before Administrative Law Judge Fenton. See ALJ Findings at 5, ¶ 3 & at 6, ¶ 2.
. Tr. 809-812, 2346. See also ALJ Findings at 7, ¶ 13.
. 5 U.S.C. § 557(d)(1)(A) (1976) (“no interested person outside the agency shall make or knowingly cause to be made to any member of the body comprising the agency ... an ex parte communication relevant to the merits of the proceeding”). FLRA regulations specifically provide that the General Counsel shall be deemed a “person outside this agency” when he is “prosecuting an unfair labor practice proceeding before the Authority.” 5 C.F.R. § 2414.3(a) (1982).
. Majority Opinion (Maj.Op.) at 567.
. Id. See also id. at 558.
. When asked at the hearing whether he understood “at the time that this discussion was in the context of the PATCO matter,” Gordon responded, “Of course.” Tr. 2346.
. See generally Tr. 809 -812.
. Maj.Op. at 567.
. Id.
. See 5 U.S.C. § 557(a), (d)(1) (1976).
. See ALJ Findings at 7, ¶ 15; 47-48.
. My colleagues speculate 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.... ” Maj.Op. at 41^2. As we have not in this case defined precisely the latitude of permissible contacts between an agency’s general counsel and its members at those early points in proceedings when decisions regarding the pursuit of emergency injunctive relief must be made, we have had no occasion to assess the legitimacy of Gordon’s communications with the members in that regard. Furthermore, irrespective of whether those prior discussions were proper, the stage in the PATCO case where such contacts were necessary had passed at the time the Applewhaite-Gordon-Stern incident occurred. By August 10, the roles of Gordon as prosecutor and Applewhaite as adjudicator were firmly solidified; on that very day, the case was being heard on the merits before one of the agency’s administrative law judges. Gordon’s continued presence at and participation in Stem’s briefing of Applewhaite was hardly less serious or more defensible than would have been the presence and participation of FLRA’s counsel-on-appeal in a conference between a judge on this panel and his law clerk.
. Secretary Lewis called Frazier on August 13; the administrative law judge’s decision recommending decertification of PATCO issued the following day. See ALJ Findings at 5, ¶ 3; 8, ¶ 2.
. Id. at 8, ¶ 3; Tr. 258.
. Tr. 259. See ALJ Findings at 8, ¶ 4.
. ALJ Findings at 8, ¶ 6.
. Id. at 9, ¶¶ 9-10.
. Id. at 10, ¶¶ 16-17.
. Id. at 9, ¶ 13.
. FLRA regulations exclude from the definition of prohibited ex parte communications “[o]ral or written requests for information solely with respect to the status of a proceeding.” 5 C.F.R. § 2414.6(b) (1982). See 5 U.S.C. § 551(14) (1976) (defining ex parte communication to exclude “requests for status reports on any matter or proceeding”).
. Also excluded, by FLRA regulation, from the definition of prohibited contacts are “[o]ral or written communications proposing settlement or an agreement for disposition of any or all issues in the proceeding.” 5 C.F.R. § 2414.6(d) (1982). There is no statutory analog to this exclusion. I find considerable merit in PAT-CO’s point that a call encouraging the agency to hasten its decision because no settlement efforts were under way can scarcely be classified as an oral communication proposing settlement. I agree with the court, however, that in the circumstances we need not pass upon the scope or validity of § 2414.6(d) of FLRA’s regulations.
. ALJ Findings at 10, ¶ 18.
. Tr. 729. See also id. at 864; ALJ Findings at 10, ¶ 21.
. ALJ Findings at 10-11, ¶¶ 22-23.
. Id. at 11, ¶ 23.
. See id. at 11, ¶ 27.
. See id. at 9, ¶ 12; 11, ¶ 26.
. Tr. 893-894. Moreover, when asked if it was his experience “that a person seeking a status report on a proceeding would not call up more than one decision-maker for a status report during the same time period,” Member Applewhaite responded, “No, I do not see why they would seek status of several.” Tr. 894.
. See ALJ Findings at 12, ¶ 35. Judge Vittone explained, “The evidence of record does not . permit an evaluation of how much of an effect the calls had on the two members, but I believe that the Secretary’s phone call did play at least some minimal part in their decision to reduce the prescribed 25 day period to 19 days.” Id. at 47. To the extent the court’s opinion suggests that Judge Vittone could find no effect from these calls, see Maj.Op. at 568,1 respectfully suggest that the proposed findings have been misread.
. I have no difficulty, however, in accepting Judge Vittone’s finding that the Secretary’s calls had no impact on the members’ ultimate decision on the decertification question. See ALJ Findings at 12, ¶ 36.
. See S.Rep.No.354, 94th Cong., 1st Sess. 36 (1975) (quoting then-existing language in APA).
. If the Secretary was concerned that the agency might postpone a decision because of false settlement rumors, the proper course would have been for him to contact his General Counsel and enquire what procedural mechanism FAA could employ to apprise the members of the true state of affairs. Presumably, one of the reasons that FAA retains a General Counsel is to secure professional advice about what steps the agency can and ought to take to protect and advance its interests in legal proceedings.
. ALJ Findings at 39-40, ¶¶ 29, 32.
. Tr. 1673-D. See ALJ Findings at 40, ¶ 32.
. Tr. 1673-D. See ALJ Findings at 40, ¶ 32.
. S.Rep.No.354, supra note 44, at 37.
. Conceivably, this statement could have been made in a context and tone in which it could have been taken humorously. There is, however, no recommended findings on this score, and Haughton’s response indicates that he did not perceive Lovell’s statement as a facetious, off-the-cuff remark; rather, he replied in a serious vein by intimating his disagreement with the other two members.
. See Maj.Op. at 596 n.38.
. See ALJ Findings at 40, ¶ 33.
. See generally Tr. 1647-1663.
. ALJ Findings at 13, ¶ 1; 15-16, ¶¶ 7-10.
. Id. at 15, ¶ 9; 16, ¶ 12. At the special hearing, and again before this court, Shanker has frankly admitted that his purpose in arranging the dinner was to subject Applewhaite to suasion on the issue of decertification.
. Id. at 16, ¶ 12.
. See Maj.Op. at 570-571 & n.50.
. Of the numerous iterations of this fundamental principle, perhaps none is clearer or more emphatic than the Supreme Court’s admonition: “[T]o perform its high function in *149the best way ‘justice must satisfy the appearance of justice.’ ” In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942, 946 (1955), quoting Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13, 99 L.Ed. 11, 16 (1954).
. ALJ Findings at 14, ¶¶ 3-6.
. The court points out that Applewhaite did not actually know of Shanker’s intentions. Maj.Op. at 571. Nonetheless, he had ample reason to stop and deliberate about the propriety of acceptance. His relationship with Shank-er was not such that an invitation to dinner was a matter of course; Applewhaite testified that he had never before dined privately with Shanker. Tr. at 903. Member Frazier testified that when Applewhaite mentioned his dinner plans, the two speculated about Shanker’s purpose, see Tr. at 233-234, 493-499, and the PAT-CO case was mentioned at least in passing, see id. at 234, 497, 507. In any event, Applewhaite well knew Shanker’s position in the labor field; more specifically, he knew that Shanker was on the Executive Board of an organization that was appearing as amicus curiae in the PATCO case. ALJ Findings at 15, ¶ 7. Given all this, it is appalling that Applewhaite could have been completely insensitive to the dangers lurking in a private dinner engagement with a prominent labor leader during FLRA’s deliberations on a notorious labor case.
. Maj.Op. at 570.
. Id. at 570, quoting Pennsylvania v. Local Union 542, lnt’l Union of Operating Eng’rs, 388 F.Supp. 155, 159 (E.D.Pa.1974).
. Id.
. For similar reasons, I cannot join in the court’s apologia for Applewhaite’s perception of a personal “dilemma” created by the PATCO case. See Maj.Op. at 573-574. I agree that Applewhaite’s concern did not constitute, in the circumstances, a “personal interest” in the outcome such as would require disqualification, but I would not be so quick to validate it by suggesting it was quite understandable. There seems little question that Applewhaite felt keenly the career ramifications of his vote. Perhaps this sensitivity was not atypically acute, although I do not detect the basis for the court’s conclusion on this point, see Maj.Op. at 574. Perhaps it is an inescapable product of creating such positions as political term appointments. However, concern for the personal consequences of an impending decision is neither a desirable nor a proper element in the judicial calculus. It is something to be struggled against, not acquiesced in.
. Maj.Op. at 571.
. ALJ Findings at 28, ¶ 51; 49.
. I take no view on whether the Shanker dinner had a transitory effect on Applewhaite’s position. As the court points out, the absence of a recommended finding on the September 21 afternoon telephone call from Applewhaite to Klein makes it difficult for us to assess Judge Vittone’s conclusion that there may have been a period when Applewhaite was swayed by Shanker’s arguments. See Maj.Op. at 571-572 n.52. On the one hand, Judge Vittone may simply have overlooked that call in sorting through the mountain of evidence presented; on the other hand, he may have considered Applewhaite’s action in calling . Haughton and Klein to propose a compromise position immediately after returning home from the dinner, see ALJ Findings at 20, ¶¶ 23-24, as an indication that Shanker’s exhortation was a contributing — even if not the sole — factor in Applewhaite’s search for a moderate solution. If we needed to resolve the point, which we do not, the appropriate course would be to remand to the administrative law judge for additional findings.
. See 5 U.S.C. § 557(d)(1)(B) (1976) (“no member of the body comprising the agency . . . 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”).
. See Maj.Op. at 571 (“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.”).
. I am somewhat puzzled by the court’s repeated assertion that remand of this case would be a “futile gesture.” See Maj.Op. at 566, 575, 592 n.92. It is my understanding that we are not remanding because no one has demonstrated that a remand is necessary. The hearing held at our behest was a thorough exploration of the nature, extent, and impact of all ex parte pleas and approaches undertaken in the relevant time period. All interested parties have had an opportunity to comment on what was revealed. Although prohibited contacts did occur, we have discerned no prejudicial effect on the agency’s final decision. In sum, we were not shown any extant problem requiring a remand to correct. If by “futility” the court means simply this, then I am in agreement. If however, use of the term implies a powerlessness on our part to have ordered remediation had we perceived such a problem, I must respectfully but vigorously disagree.
The unsealed documents were received into the record as ALJ Exhibits 1 through 8.
On March 2, 1982, counsel for the working controllers filed with the administrative law judge a motion to reconsider the ruling at the prehearing conference to deny the working controllers full party status and to grant them only amicus status.
. A comparison of PATCO Exhibits 9 and 10 with PATCO Exhibit 4a, the FLRA order establishing time limits, demonstrates that the documents are not similar for the most part.
. Member Applewhaite may have made some comments during the discussion of PATCO regarding his possible position or possible alternatives. Mr. Shanker found those comments confusing and could not understand them. (SeeTr. 1427-28)
. Member Applewhaite testified that Frazier Exhibit 17 is not his notes of the September 21 meeting (Tr. 1381-84). He could not recall to which meeting the notes referred. However, a review of Frazier Exhibit 17 demonstrates that the notes are probably from the September 21 meeting. There is no other meeting after September 21 to which the notes could refer.
. This is the same phone call between Frazier and Applewhaite on October 7 during which they discussed the “Republican Follies” fundraiser. (See pp. 611-613, infra.)
. On page 2894 of this transcript, the date reported as the 17th (line 2) is incorrect. The reporting service has advised me that the reporter’s notes show the date on line 2 to be October 17. However, the context of the testimony shows that October 7 is the date intended by the witness.
.On Page 2894 of this transcript, the date reported as the 19th (line 18) is incorrect. The reporting service has informed me that the reporter’s notes for line 18 show that the date should be October 9.
. Applewhaite and Bonitati’s testimony conflict as to where their conversation took place. Applewhaite testified that it occurred during a telephone call (Tr. 720) Bonitati testified that the call was not completed and the discussion took place during a chance meeting at the Lovell reception. (Tr. 2090-91) In all other respects concerning this conversation, the testimony of both men is essentially similar.
. The statute provides, in part, that administrative law judges be assigned to cases in rotation so far as practicable.