Mark H. Gallant, Atty., Dept. of Justice, Washington, D. C., with whom Stanley S. Harris, U. S. Atty., Charles F. C. Ruff, U. S. Atty., at the time the briefs were submitted, William Kanter and Frederick Geilfuss, Attys., Dept. of Justice, Washington, D. C., were on the brief, for intervenor, F. A. A.

James R. Rosa, Washington, D. C., was on the brief for amicus curiae, American Federation of Government Employees, urging reversal.

Stephen A. Weitzman, Washington, D. C., for amici curiae, Hugh McClure, John Hough and Jerrold Tierney, urging remand.

Barry L. Leibowitz, Washington, D. C., for intervenor, Ronald W. Haughton.

John G. Kester, Michael S. Sundermeyer, Washington, D. C., for intervenor, Henry B. Frazier, III.

Nathan Lewin, Washington, D. C., with whom Jonathan B. Sallet, Washington, D. C., was on the brief, for intervenor, Albert Shanker.

Peter G. Nash, Washington, D. C., for intervenor, Leon B. Applewhaite.

Before ROBINSON, Chief Judge, MacKINNON and EDWARDS, Circuit Judges.

Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.

Concurring opinions filed by Chief Judge SPOTTSWOOD W. ROBINSON, III and Circuit Judge MacKINNON.

                    TABLE OF CONTENTS
                                                             Page
          I.  Background .................................... 551
              A. The PATCO Strike ........................... 551
              B. Federal Labor Relations Authority
                 Proceedings ................................ 552
         II.  Ex Parte Communications During the FLRA
              Proceedings ................................... 556
              A. A.L.J. Vittone's Findings .................. 557
                 1. The Meeting Between Member
                    Applewhaite and FLRA General
                    Counsel Gordon .......................... 557
                 2. Secretary Lewis' Telephone Calls
                    to Members Frazier and Applewhaite ...... 558
                 3. Member Applewhaite's Dinner with
                    Albert Shanker .......................... 559
              B. The Parties' Positions ..................... 561
              C. Applicable Legal Standards ................. 561
                 1. The Statutory Prohibitions of Ex
                    Parte Contacts and the FLRA
                    Rules ................................... 561
                 2. Remedies for Ex Parte Communications .... 564
              D. Analysis of the Alleged Ex Parte
                 Communications with FLRA Members ........... 565
                 1. The Meeting Between Member
                    Applewhaite and FLRA General
                    Counsel Gordon .......................... 566
                 2. Secretary Lewis' Telephone Calls
                    to Members Frazier and Applewhaite ...... 568
                 3. Member Applewhaite's Dinner with
                    Albert Shanker .......................... 569
              E. Member Applewhaite Alleged "Personal
                 Interest" in the PATCO Case ................ 573
              F. Conclusion ................................. 574
        III.  PATCO's Violation of the Ban on Federal
              Employee Strikes .............................. 575
              A. The Scope of Review ........................ 575
              B. Violation of Section 7116(b)(7)(A) ......... 576
              C. Violation of Section 7116(b)(7)(B) ......... 577
         IV.  Revocation of PATCO's Exclusive Recognition
              Status ........................................ 578
              A. The FLRA's Discretion Under Section
                 7120(f) .................................... 578
                 1. The Statutory Basis of the FLRA's
                    Revocation Power ........................ 579
                 2. The Legislative History of the
                    FLRA's Revocation Power ................. 580
              B. The FLRA's Exercise of Its Discretion ...... 585
              C. Evidence of Mitigating Factors ............. 586
          V.  Arguments of the Amici Curiae ................. 589
              A. Arguments of the American Federation
                 of Government Employees .................... 589
              B. Argument of Anthony J. Skirlick, Jr......... 590
         VI.  Conclusion .................................... 591

Federal employees have long been forbidden from striking against their employer, the federal government, and thereby denying their services to the public at large.1 The United States Code presently prohibits a person who "participates in a strike ... against the Government of the United States" from accepting or holding a position in the federal government, 5 U.S.C. § 7311(2) (1976), and violation of this section is a criminal offense, 18 U.S.C. § 1918(3) (1976). Newly hired federal employees are required to execute an affidavit attesting that they have not struck and will not strike against the government, 5 U.S.C. § 3333(a) (1976). In addition, since the inception of formal collective bargaining between federal employee unions and the federal government, unions have been required to disavow the strike as an economic weapon.2 Since 1969, striking has been expressly designated a union unfair labor practice.3

In 1978, Congress enacted the Civil Service Reform Act, Title VII of which provides the first statutory basis for collective bargaining between the federal government and employee unions. Title VII in no way reduced the existing legal proscriptions against strikes by federal employees and unions representing employees in the federal service. Rather, the Act added a new provision applicable to federal employee unions that strike against the government. Under section 7120(f) of Title VII, Congress provided that the Federal Labor Relations Authority ("FLRA" or "Authority") shall "revoke the exclusive recognition status" of a recognized union, or "take any other appropriate disciplinary action" against any labor organization, where it is found that the union has called, participated in or condoned a strike, work stoppage or slowdown against a federal agency in a labor-management dispute. 5 U.S.C. § 7120(f) (Supp. IV 1980).

In this case we review the first application of section 7120(f) by the FLRA. After the Professional Air Traffic Controllers Organization ("PATCO") called a nationwide strike of air traffic controllers against the Federal Aviation Administration ("FAA") in the summer of 1981, the Authority revoked PATCO's status as exclusive bargaining representative for the controllers. For the reasons set forth below, we affirm the decision of the Authority.

The Professional Air Traffic Controllers Organization has been the recognized exclusive bargaining representative for air traffic controllers employed by the Federal Aviation Administration since the early 1970s. Faced with the expiration of an existing collective bargaining agreement, PATCO and the FAA began negotiations for a new contract in early 1981. A tentative agreement was reached in June, but was overwhelmingly rejected by the PATCO rank and file. Following this rejection, negotiations began again in late July. PATCO announced a strike deadline of Monday, August 3, 1981.

Failing to reach a satisfactory accord, PATCO struck the FAA on the morning of August 3. Over seventy percent of the nation's federally employed air traffic controllers walked off the job, significantly reducing the number of private and commercial flights in the United States.4

In prompt response to the PATCO job actions, the Government obtained restraining orders against the strike,5 and then civil and criminal contempt citations when the restraining orders were not heeded.6 The Government also fired some 11,000 striking air traffic controllers who did not return to work by 11:00 a. m. on August 5, 1981.7 In addition, on August 3, 1981, the FAA filed an unfair labor practice charge against PATCO with the Federal Labor Relations Authority. On that same day, an FLRA Regional Director issued a complaint on the unfair labor practice charge, alleging strike activity prohibited by 5 U.S.C. § 7116(b)(7) (Supp. IV 1980) and seeking revocation of PATCO's certification under the Civil Service Reform Act. The complaint noticed a hearing for one week later, August 10, 1981. Complaint and Notice of Hearing, Jt. App. 9-11.

B. Federal Labor Relations Authority Proceedings

John H. Fenton, Chief Administrative Law Judge of the FLRA, conducted hearings on the unfair labor practice charge on the afternoon of August 10. The General Counsel of the FLRA presented testimony establishing that on the morning of August 3 pickets assembled at entrances to Air Traffic Control Centers in Leesburg, Virginia, Chicago, Illinois, Ronkonkomo, New York, and Longmont, Colorado, and at the Airport Tower in Atlanta, Georgia. In each instance, the picketers carried signs that informed the public that they were air traffic controllers belonging to a particular PATCO Local and that PATCO was on strike. Attendance records presented by FAA witnesses indicated that only 2,308 of the 9,304 air traffic controllers scheduled to work nationwide on August 3 actually reported. ALJ at 3. FAA officials from the various facilities also identified striking air traffic controllers, including PATCO Local officers, in photographs of the picketing outside of the Air Traffic Control Centers. In several cases the persons identified, including the PATCO Local officers, were scheduled for work at the times the photographs were taken.

In addition to this evidence, an FAA official identified PATCO National President Robert E. Poli in two videotaped news conferences. In one videotape Mr. Poli was recorded as stating:

If we have not received a settlement proposal which our negotiating team determines should be offered to the membership, I will order the count to begin. After the tallying has been completed and following verification of the necessary support, the strike will begin on the day shift of Monday, August the 3rd.

In the second videotape, apparently made after the strike had begun and after a temporary restraining order had issued, Mr. Poli was recorded as saying: "The question is will the strike continue. The answer is yes."8

In response, PATCO offered no evidence to suggest that a strike had not occurred, to substantiate its assertion that the FLRA's evidence only demonstrated a number of separate strikes by PATCO Locals, or to establish that PATCO had made any efforts to prevent or stop the strike. Based on this record, and taking official notice of United States v. Professional Air Traffic Controllers Organization, 107 L.R.R.M. (BNA) 3210 (D.D.C.1981) (holding PATCO and Robert Poli in civil contempt for failing to comply with a temporary restraining order against the strike), Chief A.L.J. Fenton found that PATCO called and participated in a strike, a violation of 5 U.S.C. § 7116(b)(7)(A) (Supp. IV 1980), and that PATCO condoned the strike by failing to take action to prevent or stop it, a violation of 5 U.S.C. § 7116(b)(7)(B) (Supp. IV 1980). ALJ at 2-5.

At the proceedings before Chief A.L.J. Fenton, PATCO complained of insufficient time to prepare a defense, particularly with regard to matters potentially in mitigation of the remedy to be imposed by the FLRA. PATCO suggested, but did not promise,9 that if granted a continuance it might offer evidence in support of a claim of mitigation by attempting to show that the working conditions for PATCO members were unsafe, that the FAA had committed an unfair labor practice by refusing to bargain in good faith,10 and that the strike had been caused by anti-union animus in the FAA.11 Judge Fenton recessed the hearing overnight to allow PATCO to decide whether to pursue a defense against the unfair labor practice charge, including a possible proffer with respect to mitigating circumstances. When the hearing reconvened on August 11, PATCO counsel declined to proceed with any specific defense on behalf of the union.12 Rather, union counsel merely suggested that unsafe working conditions and the FAA's refusal to bargain should be considered in mitigation; however, no testimony or other evidence was offered on these matters. Judge Fenton allowed PATCO to include arguments regarding mitigation based on these alleged "proffers" in its closing brief.13

On August 14, PATCO filed its post-hearing brief; the ALJ Decision issued on the same day. In his recommended decision, Chief A.L.J. Fenton concluded that PATCO's arguments in mitigation could have no effect on the appropriate penalty:

(PATCO's) contentions regarding mitigating circumstances, however real and serious they may be, find no echo in either the Statute or the legislative history. Congress gave only one example of the kind of circumstances in which the lesser remedy would be appropriate, and it goes to the nature and seriousness of the violation rather than to sorrounding (sic) events which arguably constitute serious provocation or other miltigating (sic) circumstances.

ALJ at 8. For this reason, and because PATCO produced no evidence that it had in any way attempted to comply with the statutory ban on strikes, Judge Fenton recommended that the FLRA revoke PATCO's exclusive recognition status and that PATCO "immediately cease to be legally entitled and obligated to represent employees in the unit." ALJ at 8-9.

The FLRA General Counsel, the FAA and PATCO all filed exceptions to the A.L.J.'s recommended findings of fact and conclusions of law. The FLRA General Counsel and the FAA both excepted to the ALJ Decision to the extent that it failed to recommend a permanent revocation of PATCO's status as a labor organization under Title VII of the Civil Service Reform Act. PATCO excepted to the ALJ Decision on three principal grounds: (1) that the expedited hearing schedule had afforded PATCO inadequate time to prepare its defense; (2) that the FLRA General Counsel and the FAA had failed to produce sufficient evidence at the hearing to establish that PATCO had called, participated in, or condoned a strike in violation of Title VII; and (3) that Judge Fenton had unfairly precluded PATCO from introducing relevant evidence in mitigation of the remedy.14 The FLRA heard oral argument from PATCO, the FLRA General Counsel and the FAA on September 16, 1981.15

In seriatim opinions issued on October 22, 1981, the FLRA Members rejected the exceptions filed by the parties and affirmed the ALJ Decision. All three Members of the Authority agreed that the expedited proceedings had not violated PATCO's due process rights, any statute or agency regulation.16 ] All three agreed that the FLRA General Counsel had proven by a preponderance of the evidence that PATCO had committed unfair labor practices by striking against the FAA. Similarly, all three agreed that it was unnecessary to determine whether, at some time in the future, PATCO might again meet Title VII's definition of a labor organization; they thus declined to decide whether PATCO's revocation was permanent. The FLRA Members disagreed, however, over the extent of discretion granted to the Authority by section 7120(f) of the Civil Service Reform Act.

FLRA Member Frazier took a limited view of the discretion afforded the Authority under section 7120(f). He concluded, upon reading the relevant legislative history, that "(t)he only circumstances which the Authority may take into account in assessing a lesser remedy than revocation for a willful and intentional violation of section 7116(b)(7) are those instances in which the union made efforts to prevent or stop the illegal activity." PATCO at 22. Since there was no such evidence, Member Frazier decided that "the facts of this case permit( ) nothing less than revocation of PATCO's exclusive recognition status." Id. at 23.17

Member Applewhaite concurred in Member Frazier's disposition of the case. He disagreed, however, with Member Frazier's limited view of the Authority's remedial discretion. He interpreted the language of section 7120(f) to vest the FLRA with broad discretion, but held that the only appropriate exercise of that discretion in this case was to revoke PATCO's exclusive recognition status. PATCO at 31.18

Chairman Haughton, like Member Applewhaite, interpreted the statutory language of section 7120(f) and its legislative history as vesting the Authority with broad remedial discretion. Chairman Haughton thus expressed concern about the completeness of the record compiled by the A.L.J. In particular, he opined that the A.L.J.'s denial of a continuance for PATCO to gather evidence of mitigating circumstances potentially relevant to the remedy was erroneous because it may have deprived the Authority of evidence relevant to its decision. PATCO at 35. Nonetheless, Chairman Haughton found one fact of overriding importance: PATCO had made no attempt to end the strike. He therefore concluded that unless PATCO ended the strike within five days of the issuance of the FLRA Decision, and unless PATCO represented to the Authority that it intended to abide by the no-strike provisions of Title VII, any additional evidence could have no mitigating effect on the remedy. Pending PATCO's response, Chairman Haughton conditionally dissented from the decision of Members Frazier and Applewhaite to revoke PATCO's exclusive recognition status. Id. at 35-36.

In an attempt to comply with Chairman Haughton's condition on his dissent, the PATCO Executive Board issued a statement on October 27, 1981. The statement averred that PATCO was then unable to end the strike because its members had been locked out by the FAA and were therefore unable to return to work. The statement further represented that "when the FAA ends its lock-out, PATCO would immediately order all of its members to return to work." Statement of the PATCO Executive Board (October 27, 1981), Jt.App. 334 (emphasis in original).19 On November 8, Chairman Haughton issued a supplemental opinion retracting his dissent and concurring in the FLRA Decision to revoke PATCO's exclusive recognition status. Chairman Haughton noted that PATCO had not disavowed the strike and had made no attempt to end it. Moreover, he noted that his dissent had not provided for the type of strike termination offered by PATCO, conditioned as it was on certain actions by the FAA. Professional Air Traffic Controllers Organization, 7 F.L.R.A.No. 10 (Nov. 3, 1981) (Supplemental Opinion of Chairman Haughton); Jt.App. 335-37.

On the same day that the Federal Labor Relations Authority issued its decision, PATCO petitioned for review in this court.20 Concurrently, PATCO moved for an emergency stay of the FLRA Decision. A temporary administrative stay was granted by the court, and the FLRA was directed to submit a prompt response. Professional Air Traffic Controllers Organization v. FLRA, No. 81-2135 (D.C.Cir. Oct. 23, 1981) (order granting temporary stay). Upon receiving and considering the FLRA's response, the court dissolved the temporary stay and denied PATCO's motion for a stay pending a decision on the merits. In recognition of the urgency of the case and the public interest in a prompt disposition, the court ordered sua sponte expedited briefing and oral argument. Id. (D.C.Cir. Oct. 27, 1981) (order dissolving temporary stay, denying motion for stay pending review, and ordering expedited briefing and oral argument). The court also granted motions by the American Federation of Government Employees and by Anthony J. Skirlick, Jr. to file briefs as amicus curiae. On December 3, 1981, the court heard oral arguments by petitioner PATCO, respondent FLRA, intervenor FAA and amicus Skirlick.

II. EX PARTE COMMUNICATIONS DURING THE FLRA PROCEEDINGS

Unfortunately, allegations of improprieties during the FLRA's consideration of this case forced us to delay our review on the merits. Only a day before oral argument, the Department of Justice, which represents the FAA in this review, informed the court that the Department of Justice Criminal Division and the FBI had investigated allegations of an improper contact between a "well-known labor leader" and FLRA Member Applewhaite during the pendency of the PATCO case. We were understandably concerned about the suggestion that attempts had been made to influence the Authority improperly and about the possible inference that the Authority's decision might have been affected by these attempts.

Because our concerns extended beyond the presence or absence of criminal wrongdoing to the protection of the integrity of the administrative and judicial decisionmaking processes, we were not prepared to rely solely on the decision of the Criminal Division to close its investigation as proof that no improper influence had been exercised. Instead, we invoked a procedure that this court has occasionally employed in like situations in the past.21 Without assuming that anything improper had in fact occurred or had affected the FLRA Decision in this case, we ordered the FLRA "to hold, with the aid of a specially-appointed administrative law judge, an evidentiary hearing to determine the nature, extent, source and effect of any and all ex parte communications and other approaches that may have been made to any member or members of the FLRA while the PATCO case was pending before it." Professional Air Traffic Controllers Organization v. FLRA, 672 F.2d 109, 113 (D.C.Cir.1982) (per curiam) (order directing special evidentiary hearing).

Following our remand on the ex parte communications issue, John M. Vittone, an Administrative Law Judge with the Civil Aeronautics Board, was appointed to preside over an evidentiary proceeding. Subsequently, Judge Vittone conducted a hearing from March 4 to March 17. Pursuant to the order of this court, the parties to this review, the FLRA Members, and all persons alleged to have contacted any Authority Member during the pendency of the PATCO case were allowed to participate fully in the hearing. A.L.J. Vittone made extensive findings regarding all possibly relevant approaches to and communications with FLRA Members. After the record of the hearing and A.L.J. Vittone's recommended findings were filed with the court, the parties submitted briefs on the recommended findings and on the appropriate remedial action. On April 13, 1982, the court heard further oral argument, limited to the issue of ex parte contacts.

A. L. J. Vittone's inquiry led to the disclosure of a number of communications with FLRA Members that were at least arguably related to the Authority's consideration of the PATCO case. We find the vast majority of these communications unobjectionable. See notes 38-41 infra. Three occurrences, however, are somewhat more troubling and require our careful review and discussion. We first summarize A. L. J. Vittone's findings regarding them.

1. The Meeting Between Member Applewhaite and FLRA General Counsel Gordon22

On August 10, 1981 (one week after the unfair labor practice complaint against PATCO was filed), H. Stephan Gordon, the FLRA General Counsel, was in Member Applewhaite's office discussing administrative matters unrelated to the PATCO case. During Gordon's discussion with Member Applewhaite, Ms. Ellen Stern, an attorney with the FLRA Solicitor's office, entered Member Applewhaite's office to deliver a copy of a memorandum entitled "Decertification of Labor Organization Participating in the Conduct of a Strike in Violation of Section 7116(b)(7) of the Statute." Ms. Stern had prepared the memo at the request of Member Frazier.23 With General Counsel Gordon present, Ms. Stern proceeded to discuss her memorandum, which dealt with whether the Civil Service Reform Act makes revocation of a striking union's exclusive recognition status mandatory or discretionary and, assuming it is discretionary, what other disciplinary actions might be taken.

During Ms. Stern's discussion, both Member Applewhaite and General Counsel Gordon asked her general questions (e.g., regarding the availability of other remedies and whether she had researched the relevant legislative history). General Counsel Gordon did not ask Member Applewhaite any questions or express any views on the issues discussed in the memorandum. Nor did Member Applewhaite express any opinion on the correct statutory interpretation. While the conversation at least implicitly focused on the PATCO case, the facts of the case and the appropriate disposition were not discussed. The discussion ended after ten or fifteen minutes.

A. L. J. Vittone concluded that "(t)he conversation had no effect or impact on Member Applewhaite's ultimate decision in the PATCO case." Findings at 7, P 15.

2. Secretary Lewis' Telephone Calls to Members Frazier and Applewhaite24

During the morning of August 13, 1981, Secretary of Transportation Andrew L. Lewis, Jr. telephoned Member Frazier. Secretary Lewis stated that he was not calling about the substance of the PATCO case, but wanted Member Frazier to know that, contrary to some news reports, no meaningful efforts to settle the strike were underway. Secretary Lewis also stated that the Department of Transportation would appreciate expeditious handling of the case. Not wanting to discuss the PATCO case with Secretary Lewis, Member Frazier replied, "I understand your position perfectly, Mr. Secretary." Secretary Lewis then inquired whether Member Applewhaite was in Washington, D.C. at that time. Member Frazier replied that he was, but that Chairman Haughton was out of town. Although Member Frazier offered to convey the Secretary's message to Member Applewhaite, Secretary Lewis stated that he would call personally.

Member Frazier discussed Secretary Lewis' call with FLRA Solicitor Robert Freehling, describing it as relating to status and settlement. Solicitor Freehling advised Member Frazier that the communication did not fall within the ex parte prohibitions of the FLRA Rules.

Member Frazier also advised Member Applewhaite of Secretary Lewis' telephone call. In anticipation of a call, Member Applewhaite located the FLRA Rules regarding the time limits for processing an appeal from an A. L. J. decision in an unfair labor practice case. When Secretary Lewis telephoned and stated his concern that the case not be delayed, Member Applewhaite interrupted the Secretary to inform him that if he wished to obtain expedited handling of the case, he would have to comply with the FLRA Rules and file a written motion. Secretary Lewis stated that he was unaware that papers had to be filed and that he would contact his General Counsel immediately. The conversation ended without further discussion.

During the afternoon of August 13, the FAA filed a Motion to Modify Time Limits for Filing Exceptions, requesting that the time limit be reduced from the usual twenty-five days to seven days. On August 14, the FLRA General Counsel filed a similar motion. On August 17, PATCO filed an opposition to these motions and a motion to extend the time for filing exceptions to sixty days. On August 18, 1981, the FLRA Members considered the three pending motions, denied all three, and decided instead to reduce the usual twenty-five day period for filing exceptions to nineteen days.

Upon considering this evidence, Judge Vittone concluded that: (1) the FAA's filing of a motion to expedite may have been in response to Secretary Lewis' conversation with Member Applewhaite, Findings at 12, P 34; (2) Chairman Haughton was unaware of Secretary Lewis' telephone calls when he considered the motions on August 18, id. at 12, P 33; (3) "Secretary Lewis' call had an undetermined effect on Member Applewhaite's and Member Frazier's decision to reduce the time period for filing exceptions," id. at 12, P 35; and (4) the telephone calls "had no effect on Member Applewhaite's or Member Frazier's ultimate decision on the merits of the PATCO case," id. at 12, P 36.

3. Member Applewhaite's Dinner with Albert Shanker25

Since 1974 Albert Shanker has been President of the American Federation of Teachers, a large public-sector labor union, and a member of the Executive Council of the AFL-CIO.26 Since 1964 Mr. Shanker has been President of the AFT's New York City Local, the United Federation of Teachers. Before joining the FLRA, Member Applewhaite had been associated with the New York Public Employment Relations Board. Through their contacts in New York, Mr. Shanker and Member Applewhaite had become professional and social friends.

The Applewhaite/Shanker Dinner. During the week of September 20, 1981, Mr. Shanker was in Washington, D. C. on business. On September 21, Mr. Shanker made arrangements to have dinner with Member Applewhaite that evening. Although he did not inform Member Applewhaite of his intentions when he made the arrangements, Mr. Shanker candidly admitted that he wanted to have dinner with Member Applewhaite because he felt strongly about the PATCO case and wanted to communicate directly to Member Applewhaite his sentiments, previously expressed in public statements, that PATCO should not be severely punished for its strike. In particular, Mr. Shanker believed that revocation of PATCO's exclusive recognition status would be an excessive punishment. After accepting the invitation, Member Applewhaite informed Member Frazier and Chairman Haughton that he was having dinner with Mr. Shanker.

Member Applewhaite and Mr. Shanker talked for about an hour and a half during their dinner on September 21. Most of the discussion concerned the preceding Saturday's Solidarity Day Rally, an upcoming tuition tax credit referendum in the District of Columbia, and mutual friends from New York. Near the end of the dinner, however, the conversation turned to labor law matters relevant to the PATCO case. The two men discussed various approaches to public employee strikes in New York, Pennsylvania and the federal government. Mr. Shanker expressed his view that the punishment of a striking union should fit the crime and that revocation of certification as a punishment for an illegal strike was tantamount to "killing a union." The record is clear that Mr. Shanker made no threats or promises to Member Applewhaite; likewise, the evidence also indicates that Member Applewhaite never revealed his position regarding the PATCO case.

Near the end of their conversation, Member Applewhaite commented that because the PATCO case was hotly contested, he would be viewed with disfavor by whichever side he voted against. Member Applewhaite also observed that he was concerned about his prospects for reappointment to the FLRA in July 1982. Mr. Shanker, in turn, responded that Member Applewhaite had no commitments from anyone and urged him to vote without regard to personal considerations. The dinner concluded and the two men departed.

The FLRA Decisional Process. On the afternoon of September 21, before the Applewhaite/Shanker dinner, the FLRA Members had had their first formal conference on the PATCO case, which had been argued to them five days earlier. Members Frazier and Applewhaite both favored revocation of PATCO's exclusive recognition status and took the position that PATCO would no longer be a labor organization within the meaning of the Civil Service Reform Act. Member Frazier favored an indefinite revocation; Member Applewhaite favored a revocation for a fixed period of one to three years. Chairman Haughton agreed that an illegal strike had occurred, but favored suspension, not revocation, of PATCO's collective bargaining status.

After September 21, Member Applewhaite considered other remedies, short of revocation, to deal with the PATCO strike. For over two weeks Member Applewhaite sought to find common ground with Chairman Haughton. Those efforts to agree on an alternative solution failed and, on October 9, Member Applewhaite finally decided to vote with Member Frazier for revocation. (Member Applewhaite apparently was concerned that the FLRA have a majority favoring one remedy, rather than render three opinions favoring three different dispositions.) All three Members drafted their final opinions by October 19. The drafts were exchanged and responses inserted. With some polishing, but no substantive change of positions, the opinions issued on October 22, 1981.

The Members' Responses to the Applewhaite/Shanker Dinner. While these negotiations within the Authority were going on, Member Frazier became concerned that Mr. Shanker might have influenced Member Applewhaite's position in the case. On September 22, Member Frazier visited Member Applewhaite to inquire about his dinner with Mr. Shanker. Member Frazier understood Member Applewhaite to say that Shanker had said that if Member Applewhaite voted against PATCO, then Applewhaite would be unable to get work as an arbitrator when he left the FLRA. Member Frazier also understood Member Applewhaite to say that he was then leaning against voting for revocation. (A. L. J. Vittone found that Shanker had made no such threats during the dinner, and concluded that Member Frazier reached this conclusion based on some miscommunication or misunderstanding.)

On September 22 and again on September 28, Member Frazier advised Member Applewhaite to talk to Solicitor Freehling about his dinner with Mr. Shanker. Member Applewhaite did so on September 28, and they concluded that no promises of benefits or threats had occurred and, therefore, that no crime had been committed. Solicitor Freehling also advised Member Applewhaite of the FLRA Rules on ex parte contacts. Member Applewhaite then told Chairman Haughton that he had discussed the dinner meeting with Solicitor Freehling and that there were no problems.

Member Frazier later asked Solicitor Freehling if Member Applewhaite had discussed his dinner with Mr. Shanker. Solicitor Freehling told Member Frazier that they had talked and that Member Applewhaite had concluded that there were no problems involved. Despite these assurances, Member Frazier contacted his personal attorney. Sometime in early October, Member Frazier's attorney contacted the FBI. The FBI interviewed Member Frazier on October 17 and then other FLRA Members and staff. FBI agents interviewed Member Applewhaite on October 22, the day the FLRA Decision issued. (Member Applewhaite was thus unaware of the FBI investigation until after he reached his final decision in the PATCO case.)

The A. L. J.'s Conclusions. A. L. J. Vittone concluded: "The Shanker-Applewhaite dinner had no effect on the ultimate decision of Mr. Applewhaite in the PATCO case. Member Applewhaite's final decision in the PATCO case was substantially the same as the position he discussed at the September 21 meeting of the members." Findings at 28, P 51. Later in his recommended findings, A. L. J. Vittone commented:

It is clear that Mr. Shanker's message to Mr. Applewhaite was that revocation of certification was a drastic remedy out of proportion to the violation. However, as I stated in my findings, I do not believe tht (sic) the dinner had any effect on the final decision of the FLRA in the PATCO case. At the very most, the effect was transitory in nature, and occurred from September 21 to October 9.

Id. at 49.

Each of the FLRA Members argue that their individual contacts with persons outside of the Authority were not improper. In addition, each of the Members supports A. L. J. Vittone's findings that the various contacts, their own and their colleagues', had no effect on the ultimate decision of the PATCO case.27 Member Applewhaite alone disputes A. L. J. Vittone's finding that his dinner with Mr. Shanker may have had a transitory effect on his consideration of the case. Mr. Shanker also argues that his dinner with Member Applewhaite was not inappropriate and that it had no effect on the decision. In addition to the individual Members and Mr. Shanker, the FLRA (represented by its Acting Solicitor) and the FAA agree with the finding of no effect on the decision in the case.

PATCO, amicus Skirlick, and amici McClure, Hough and Tierney are less sanguine about the implications of Judge Vittone's findings. Each of them argue that the disclosed communications were improper and require remedial action. The amici contend that, due to the ex parte contacts, the Authority had an irrational sense of urgency about the case. This, they argue, prejudiced their ability to participate in the unfair labor practice proceeding and to protect the interests of nonstriking controllers. PATCO contends that the contacts with Authority Members by General Counsel Gordon and Secretary Lewis require a remand with instructions that the FLRA General Counsel and the FAA be required to show cause why the complaint should not be dismissed.

Based on their agreement with A. L. J. Vittone's finding of no effect on the ultimate outcome, the FLRA, the FAA, Chairman Haughton and Member Applewhaite all argue that no further action regarding ex parte contacts need be taken and that the court may now consider the PATCO decision on the merits. In his brief to this court, Member Frazier urged that the FLRA Decision be vacated and the case remanded to the Authority for proceedings anew. Member Frazier's position was premised on the assumption that Member Applewhaite had acted pursuant to a personal bias, thereby denying the parties an impartial tribunal. Member Frazier therefore initially urged reconsideration with Member Applewhaite disqualified from participation. However, at the oral argument held before this court on April 13, 1982, counsel for Member Frazier conceded that, since a full hearing already had been held on the matter of ex parte communications, it was not essential that the case be remanded. Member Frazier thus now appears to argue that, so long as the sanctity of the administrative and judicial processes is preserved, the court may properly consider the PATCO decision on the merits.

1. The Statutory Prohibition of Ex Parte Contacts and the FLRA Rules

The Civil Service Reform Act requires that FLRA unfair labor practice hearings, to the extent practicable, be conducted in accordance with the provisions of the Administrative Procedure Act. 5 U.S.C. § 7118(a)(6) (Supp. IV 1980). Since FLRA unfair labor practice hearings are formal adjudications within the meaning of the APA, see 5 U.S.C. § 551(7) (1976), section 557(d) governs ex parte communications. Id. § 557(d).

Section 557(d) was enacted by Congress as part of the Government in the Sunshine Act, Pub.L.No. 94-409, § 4(a), 90 Stat. 1241, 1246 (1976). The section prohibits ex parte communications "relevant to the merits of the proceeding" between an "interested person" and an agency decisionmaker, 5 U.S.C. § 557(d)(1)(A), (B) (1976), requires the agency decisionmaker to place any prohibited communications on the public record, id. § 557(d)(1)(C), grants the agency the authority to require an infringing party "to show cause why his claim or interest should not be dismissed, denied, disregarded, or otherwise adversely affected on account of (a) violation," id. § 557(d)(1)(D), and defines the time period during which the statutory prohibitions are applicable, id. § 557(d)(1)(E).28 The FLRA has adopted rules that, with minor variations, parallel the requirements of section 557(d). See 5 C.F.R. pt. 2414 (1981).

Three features of the prohibition on ex parte communications in agency adjudications are particularly relevant to the contacts here at issue. First, by its terms, section 557(d) applies only to ex parte communications to or from an "interested person." Congress did not intend, however, that the prohibition on ex parte communications would therefore have only a limited application. A House Report explained:

The term "interested person" is intended to be a wide, inclusive term covering any individual or other person with an interest in the agency proceeding that is greater than the general interest the public as a whole may have. The interest need not be monetary, nor need a person to (sic) be a party to, or intervenor in, the agency proceeding to come under this section. The term includes, but is not limited to, parties, competitors, public officials, and nonprofit or public interest organizations and associations with a special interest in the matter regulated. The term does not include a member of the public at large who makes a casual or general expression of opinion about a pending proceeding.

H.R.Rep.No. 880, Pt. I, 94th Cong., 2d Sess. 19-20 (1976), U.S.Code Cong. & Admin.News 1976, p. 2183, 2201, reprinted in Senate Comm. on Government Operations & House Comm. on Government Operations, 94th Cong., 2d Sess., Government in the Sunshine Act-S. 5 (Public Law 94-409): Source Book: Legislative History, Texts, and Other Documents 530-31 (Jt. Comm. Print 1976) (hereinafter cited as Sunshine Act Sourcebook). Accord, S.Rep.No. 354, 94th Cong., 1st Sess. 11, 36 (1975), Sunshine Act Sourcebook at 206, 231; see also 5 C.F.R. § 2414.3(a) (1981).

Second, the Government in the Sunshine Act defines an "ex parte communication" as "an oral or written communication not on the public record to which reasonable prior notice to all parties is not given, but ... not includ(ing) requests for status reports on any matter or proceeding ...." 5 U.S.C. § 551(4) (1976).29 Requests for status reports are thus allowed under the statute, even when directed to an agency decisionmaker rather than to another agency employee. See Raz Inland Navigation Co. v. ICC, 625 F.2d 258 (9th Cir. 1980). Nevertheless, the legislative history of the Act cautions:

A request for a status report or a background discussion may in effect amount to an indirect or subtle effort to influence the substantive outcome of the proceedings. The judgment will have to be made whether a particular communication could affect the agency's decision on the merits. In doubtful cases the agency official should treat the communication as ex parte so as to protect the integrity of the decision making process.

S.Rep.No. 354, supra, at 37, Sunshine Act Sourcebook at 232. Accord, H.R.Rep.No. 880, Pt. I, supra, at 20-21, Sunshine Act Sourcebook at 531-32.

Third, and in direct contrast to status reports, section 557(d) explicitly prohibits communications "relevant to the merits of the proceeding." The congressional reports state that the phrase should "be construed broadly and ... include more than the phrase 'fact in issue' currently used in (section 554(d)(1) of) the Administrative Procedure Act." S.Rep.No. 354, supra, at 36, Sunshine Act Sourcebook at 231; H.R.Rep.No. 880, Pt. I, supra, at 20, U.S.Code Cong. & Admin.News 1976, p. 2202, Sunshine Act Sourcebook at 531. While the phrase must be interpreted to effectuate the dual purposes of the Government in the Sunshine Act, i.e., of giving notice of improper contacts and of providing all interested parties an opportunity to respond to illegal communications, see S.Rep.No. 354, supra, at 37, Sunshine Act Sourcebook at 232, the scope of this provision is not unlimited. Congress explicitly noted that the statute does not prohibit procedural inquiries, see id. at 36, Sunshine Act Sourcebook at 231, or other communications "not relevant to the merits," S.Rep.No. 1178, 94th Cong., 2d Sess. 29 (1976) (Conference Report), Sunshine Act Sourcebook at 811.

In sum, Congress sought to establish common-sense guidelines to govern ex parte contacts in administrative hearings, rather than rigidly defined and woodenly applied rules. The disclosure of ex parte communications serves two distinct interests. Disclosure is important in its own right to prevent the appearance of impropriety from secret communications in a proceeding that is required to be decided on the record. Disclosure is also important as an instrument of fair decisionmaking; only if a party knows the arguments presented to a decisionmaker can the party respond effectively and ensure that its position is fairly considered. When these interests of openness and opportunity for response are threatened by an ex parte communication, the communication must be disclosed. It matters not whether the communication comes from someone other than a formal party or if the communication is clothed in the guise of a procedural inquiry. If, however, the communication is truly not relevant to the merits of an adjudication and, therefore, does not threaten the interests of openness and effective response, disclosure is unnecessary. Congress did not intend to erect meaningless procedural barriers to effective agency action. It is thus with these interests in mind that the statutory prohibition on ex parte communications must be applied.

Section 557(d) contains two possible administrative remedies for improper ex parte communications. The first is disclosure of the communication and its content. 5 U.S.C. § 557(d)(1)(C) (1976). The second requires the violating party to "show cause why his claim or interest in the proceeding should not be dismissed, denied, disregarded, or otherwise adversely affected on account of (the) violation." Id. § 557(d)(1)(D); see also id. § 556(d). Congress did not intend, however, that an agency would require a party to "show cause" after every violation or that an agency would dismiss a party's interest more than rarely. See S.Rep.No. 354, supra, at 37-39, Sunshine Act Sourcebook at 232-34. Indeed, the statutory language clearly states that a party's interest in the proceeding may be adversely affected only "to the extent consistent with the interests of justice and the policy of the underlying statutes." 5 U.S.C. § 557(d)(1)(D) (1976).30

The Government in the Sunshine Act contains no specific provisions for judicial remedy of improper ex parte communications. However, we may infer from approving citations in the House and Senate Reports that Congress did not intend to alter the existing case law regarding ex parte communications and the legal effect of such contacts on agency decisions. See S.Rep.No. 354, supra, at 3, 35, Sunshine Act Sourcebook at 198, 230; H.R.Rep.No. 880, Pt. I, supra, at 4, Sunshine Act Sourcebook at 515 (citing Jacksonville Broadcasting Corp. v. FCC, 348 F.2d 75 (D.C.Cir.), cert. denied, 382 U.S. 893, 86 S.Ct. 186, 15 L.Ed.2d 150 (1965), and Sangamon Valley Television Corp. v. FCC, 269 F.2d 221 (D.C.Cir.1959)).

Under the case law in this Circuit, improper ex parte communications, even when undisclosed during agency proceedings, do not necessarily void an agency decision. Rather, agency proceedings that have been blemished by ex parte communications have been held to be voidable. See, e.g., Home Box Office, Inc. v. FCC, 567 F.2d 9, 58 (D.C.Cir.), cert. denied, 434 U.S. 829, 98 S.Ct. 111, 54 L.Ed.2d 89 (1977); United Air Lines v. CAB, 309 F.2d 238, 240-41 (D.C.Cir.1962); WORZ, Inc. v. FCC, 268 F.2d 889, 890 (D.C.Cir.1959).31 In enforcing this standard, a court must consider whether, as a result of improper ex parte communications, the agency's decisionmaking process was irrevocably tainted so as to make the ultimate judgment of the agency unfair, either to an innocent party or to the public interest that the agency was obliged to protect.32 In making this determination, a number of considerations may be relevant: the gravity of the ex parte communications;33 whether the contacts may have influenced the agency's ultimate decision;34 whether the party making the improper contacts benefited from the agency's ultimate decision;35 whether the contents of the communications were unknown to opposing parties, who therefore had no opportunity to respond;36 and whether vacation of the agency's decision and remand for new proceedings would serve a useful purpose.37 Since the principal concerns of the court are the integrity of the process and the fairness of the result, mechanical rules have little place in a judicial decision whether to vacate a voidable agency proceeding. Instead, any such decision must of necessity be an exercise of equitable discretion.

D. Analysis of the Alleged Ex Parte Communications with FLRA Members

With the foregoing considerations in mind, we have analyzed A. L. J. Vittone's findings thoroughly and given careful thought to the positions urged by the parties. As we noted earlier, the vast majority of the reported contacts between FLRA Members and persons outside the Authority are not troubling. They relate to inquiries about the expected date of issuance of the FLRA's opinion,38 information from a third party regarding settlement efforts,39 statements regarding the running of PATCO's time to respond to Chairman Haughton's conditional dissent,40 and other communications unrelated to the merits of the case.41

After extensive review of the three troubling incidents that we describe in Part II.A. supra, we believe that they too provide insufficient reason to vacate the FLRA Decision or to remand this case for further proceedings before the Authority. The special evidentiary hearing before Judge Vittone was ordered by this court not because we assumed that the A. L. J. would find serious wrongs or improprieties, but because the allegations of misconduct were serious enough to require full exploration. Public officials are held to high standards of behavior, and only through a special inquiry could we clear the air of any doubt that the FLRA Decision in this case was not unfairly influenced.

After unavoidable time, effort and expense, both by the parties and by the individual FLRA Members, A. L. J. Vittone formulated his findings. Except as otherwise noted below, we accept them. We conclude that at least one and possibly two of the contacts documented by the A. L. J. probably infringed the statutory prohibitions on ex parte communications. The incidents reported by the A. L. J. also included some evident, albeit unintended, indiscretions in a highly charged and widely publicized case. Nevertheless, we agree with A. L. J. Vittone that the ex parte contacts here at issue had no effect on the ultimate decision of the FLRA. Moreover, we conclude that the statutory infringements and other indiscretions are not so serious as to require us to vacate the FLRA Decision or to remand the case to the Authority. On the facts of this case, we believe that to vacate and remand would be a gesture of futility.

1. The Meeting Between Member Applewhaite and FLRA General Counsel Gordon

When General Counsel Gordon met with Member Applewhaite on August 10, the General Counsel's office was prosecuting the unfair labor practice complaint against PATCO before Chief A. L. J. Fenton. General Counsel Gordon was therefore a "person outside the agency" within the meaning of section 557(d) and the FLRA Rules. 5 C.F.R. § 2414.3(a) (1981). Still, the undisputed purpose of the meeting was to discuss budgetary and administrative matters. It was therefore entirely appropriate. The shared concerns of the Authority are not put on hold whenever the General Counsel prosecutes an unfair labor practice complaint.

The discussion relevant to the PATCO case arose only when Ms. Stern delivered a copy of her memorandum regarding decertification of striking unions to Member Applewhaite. Thus, the ex parte contact, such as it was, was entirely inadvertent.42 More important, the contents of the discussion were entirely innocuous. Neither the General Counsel nor Member Applewhaite expressed any view on the correct statutory interpretation, the General Counsel made no arguments to Member Applewhaite, and the facts of the PATCO case were not mentioned.

Some occasional and inadvertent contacts between the prosecuting and adjudicating arms of a small agency like the FLRA may be inevitable. While we cannot countenance any contacts or overlap in functions that threaten to bias administrative adjudications, accidental or passing references to a pending case do not per se deprive a party of a fair proceeding. See 5 U.S.C. § 554(d) (C) (1976); cf. FTC v. Cinderella Career & Finishing Schools, 404 F.2d 1308, 1315 (D.C.Cir.1968) (some mixing of adjudicatory and prosecutorial functions is not a denial of due process). Indeed, it is likely that the content of the brief discussion between Member Applewhaite, General Counsel Gordon and Ms. Stern was less relevant to the merits of the PATCO case than was the information conveyed to the FLRA Members by the General Counsel when he sought their approval to seek an injunction against the strike pursuant to 5 U.S.C. § 7123(d) (Supp. IV 1980). See 5 C.F.R. ch. XIV, app. B (1981); id. § 2414.6(f).43 Yet, such discussions regarding the initiation of proceedings and the filing of charges violate neither the Administrative Procedure Act nor due process of law. Withrow v. Larkin, 421 U.S. 35, 56-57, 95 S.Ct. 1456, 1469, 43 L.Ed.2d 712 (1975).

In hindsight, it may have been preferable if Member Applewhaite had postponed even this general conversation with Ms. Stern or if General Counsel Gordon had temporarily excused himself from Member Applewhaite's office.44 Nonetheless, we do not believe that this contact tainted the proceeding or unfairly advantaged the General Counsel in the prosecution of the case. Thus, we conclude that the conversation at issue here, even though possibly indiscreet and undesirable, does not void the FLRA Decision in this case.

2. Secretary Lewis' Telephone Calls to Members Frazier and Applewhaite

Transportation Secretary Lewis was undoubtedly an "interested person" within the meaning of section 557(d) and the FLRA Rules when he called Members Frazier and Applewhaite on August 13. Secretary Lewis' call clearly would have been an improper ex parte communication if he had sought to discuss the merits of the PATCO case. The Secretary explicitly avoided the merits, however, and mentioned only his view on the possibility of settlement and his desire for a speedy decision. On this basis, Solicitor Freehling and Member Frazier concluded the call was not improper. See 5 C.F.R. § 2414.6(b), (d) (1981).

We are less certain that Secretary Lewis' call was permissible. Although Secretary Lewis did not in fact discuss the merits of the case, even a procedural inquiry may be a subtle effort to influence an agency decision. See text at note 29 supra. We do not doubt that Member Frazier and Solicitor Freehling concluded in good faith that the communications were not improper, but it would have been preferable for them to heed Congress' warning, to assume that close cases like these are improper, and to report them on the public record.

We need not decide, however, whether Secretary Lewis' contacts were in fact improper. Even if they were, the contacts did not taint the proceedings or prejudice PATCO. Secretary Lewis' central concern in his conversations with Member Frazier and Member Applewhaite was that the case be handled expeditiously.45 Member Applewhaite explicitly told Secretary Lewis that if he wanted the case handled more quickly than the normal course of FLRA business, then the FAA would have to file a written request. If, as A.L.J. Vittone found likely, Member Applewhaite's comments led to the FAA's Motion to Modify Time Limits, that was exactly the desired result. Once the FAA filed a motion, PATCO filed its own responsive motions, and the FLRA was able to decide the timing issue based on the pleadings before it.

We believe that the Authority did exactly that. Chairman Haughton was cognizant only of the motions that had been filed. Member Applewhaite had quickly terminated his conversation with Secretary Lewis, and Member Frazier's conversation with Secretary Lewis was at most brief. During the Members' hour-long consideration of the motions, they did not mention Secretary Lewis' calls. In the end, the FLRA denied all of the motions and only reduced the time for filing exceptions from twenty-five days to nineteen days. In these circumstances, and given A.L.J. Vittone's inability to find any effect of the calls on the Members' decision, see Findings at 12, P 35, we cannot find that the disposition of the motions was improperly influenced.

Finally, PATCO cannot claim that it was prejudiced. The failure of the Authority to notice Secretary Lewis' calls on the public record did not deprive PATCO of an opportunity to comment: PATCO filed responsive motions. (Surely PATCO cannot argue that fairness requires two opportunities to respond rather than one.) Nor has PATCO suggested how it was ultimately injured by the six-day change in the time for filing exceptions.46 In these circumstances we conclude that Secretary Lewis' telephone calls do not void the FLRA Decision.

3. Member Applewhaite's Dinner with Albert Shanker

Of course, the most troublesome ex parte communication in this case occurred during the September 21 dinner meeting between Member Applewhaite and American Federation of Teachers President Albert Shanker-the "well-known labor leader" mentioned in Assistant Attorney General McGrath's affidavit. See Professional Air Traffic Controllers Organization v. FLRA, 672 F.2d 109, 113-15 app. (D.C.Cir.1982). Because allegations arising from this dinner occasioned our order of an evidentiary hearing, A.L.J. Vittone and the participants in the hearing before him centered much of their attention on this incident. We, too, have carefully focused on the Applewhaite/Shanker dinner in our review of the ex parte contacts. We agree-as do all the parties before us-with A.L.J. Vittone's finding that the dinner had no effect on the FLRA Decision in the case. After thorough consideration, we further conclude that the incident does not require a remand to the Authority.

At the outset, we are faced with the question whether Mr. Shanker was an "interested person" to the proceeding under section 557(d) and the FLRA Rules. Mr. Shanker argues that he was not. He suggests that his only connection with the unfair labor practice case was his membership on the Executive Council of the AFL-CIO which, unbeknownst to him, had participated as amicus curiae in the oral argument of the PATCO case before the FLRA. This relationship to the proceeding, Mr. Shanker contends, is too tenuous to qualify him as an "interested person" forbidden to make ex parte communications to the Authority Members.

As noted above, Congress did not intend such a narrow construction of the term "interested person." See text after note 28 supra. The Senate Committee on Government Operations deleted a provision in the original bill that exempted ex parte communications involving persons who were neither parties, intervenors nor government officials. See S.Rep.No.354, 94th Cong., 1st Sess. 11 (1975), Sunshine Act Sourcebook at 206. The House and Senate Reports agreed that the term covers "any individual or other person with an interest in the agency proceeding that is greater than the general interest the public as a whole may have. The interest need not be monetary, nor need a person be a party to, or intervenor in, the agency proceeding ...." Id. at 36, Sunshine Act Sourcebook at 231. Accord, H.R.Rep.No.880, Pt. I, 94th Cong., 2d Sess. 19 (1975), U.S.Code Cong. & Admin.News 1976, p. 2201, Sunshine Act Sourcebook at 530.

We believe that Mr. Shanker falls within the intended scope of the term "interested person." Mr. Shanker was (and is) the President of a major public-sector labor union. As such, he has a special and well-known interest in the union movement and the developing law of labor relations in the public sector. The PATCO strike, of course, was the subject of extensive media coverage and public comment. Some union leaders undoubtedly felt that the hard line taken against PATCO by the Administration might have an adverse effect on other unions, both in the federal and in state and local government sectors. Mr. Shanker apparently shared this concern. From August 3, 1981 to September 21, 1981, Mr. Shanker and his union made a series of widely publicized statements in support of PATCO. Mr. Shanker urged repeatedly in public statements that disproportionately severe punishment not be inflicted on PATCO. He spoke frequently on this subject, was interviewed about the PATCO strike on a nationally televised news program, and published a number of columns in the New York Times discussing the PATCO situation. Findings at 14-15, PP 3-6. Thus, Mr. Shanker's actions, as well as his union office, belie his implicit claim that he had no greater interest in the case than a member of the general public. Regardless of the amicus status of the AFL-CIO, and Mr. Shanker's lack of knowledge thereof, he was an "interested person" within the meaning of 5 U.S.C. § 557(d) (1976).47

Even if we were to adopt Mr. Shanker's position that he was not an interested person, we are astonished at his claim that he did nothing wrong. Mr. Shanker frankly concedes that he "desired to have dinner with Member Applewhaite because he felt strongly about the PATCO case and he wished to communicate directly to Member Applewhaite sentiments he had previously expressed in public." Shanker's Brief at 8; see Findings at 15, P 9. While we appreciate Mr. Shanker's forthright admission, we must wonder whether it is a product of candor or a failure to comprehend that his conduct was improper. In case any doubt still lingers, we take the opportunity to make one thing clear: It is simply unacceptable behavior for any person directly to attempt to influence the decision of a judicial officer in a pending case outside of the formal, public proceedings. This is true for the general public, for "interested persons," and for the formal parties to the case.48 This rule applies to administrative adjudications as well as to cases in Article III courts.49

We think it a mockery of justice to even suggest that judges or other decisionmakers may be properly approached on the merits of a case during the pendency of an adjudication. Administrative and judicial adjudications are viable only so long as the integrity of the decisionmaking processes remains inviolate. There would be no way to protect the sanctity of adjudicatory processes if we were to condone direct attempts to influence decisionmakers through ex parte contacts.

We do not hold, however, that Member Applewhaite committed an impropriety when he accepted Mr. Shanker's dinner invitation. Member Applewhaite and Mr. Shanker were professional and social friends. We recognize, of course, that a judge "must have neighbors, friends and acquaintances, business and social relations, and be a part of his day and generation." Pennsylvania v. Local Union 542, International Union of Operating Engineers, 388 F.Supp. 155, 159 (E.D.Pa.1974) (quoting Ex Parte N. K. Fairbank Co., 194 F. 978, 989 (M.D.Ala.1912)). Similarly, Member Applewhaite was not required to renounce his friendships, either personal or professional, when he was appointed to the FLRA. When Mr. Shanker called Member Applewhaite on September 21, Member Applewhaite was unaware of Mr. Shanker's purpose in arranging the dinner. He therefore had no reason to reject the invitation.50

The majority of the dinner conversation was unrelated to the PATCO case. Only in the last fifteen minutes of the dinner did the discussion become relevant to the PATCO dispute, apparently when Mr. Shanker raised the topic of local approaches to public employee strikes in New York and Pennsylvania. See Findings at 16-17, PP 11-14. At this point, and as the conversation turned to the discipline appropriate for a striking union like PATCO, Member Applewhaite should have promptly terminated the discussion. Had Mr. Shanker persisted in discussing his views of the PATCO case, Member Applewhaite should have informed him in no uncertain terms that such behavior was inappropriate. Unfortunately, he did not do so.

This indiscretion, this failure to steer the conversation away from the PATCO case, eventually led to the special evidentiary hearing in this case. The hearing has filled in much of the "factual picture" left incomplete by the McGrath affidavit and the FBI reports. See Professional Air Traffic Controllers Organization v. FLRA, 672 F.2d 109, 113 (D.C.Cir.1982) (per curiam). We now know that Mr. Shanker did not in any way threaten Member Applewhaite during their dinner. Mr. Shanker did not tell Member Applewhaite that if he voted to decertify PATCO he would be unable to get cases as an arbitrator if and when he left the FLRA. Mr. Shanker did not say that he was speaking "for top AFL-CIO officials" or that Member Applewhaite would need labor support to secure reappointment. Moreover, Mr. Shanker did not make any promises of any kind to Member Applewhaite, and Member Applewhaite did not reveal how he intended to vote in the PATCO case. Findings at 17-18, PP 16-17.51

In these circumstances, we do not believe that it is necessary to vacate the FLRA Decision and remand the case. First, while Mr. Shanker's purpose and conduct were improper, and while Member Applewhaite should not have entertained Mr. Shanker's views on the desirability of decertifying a striking union, no threats or promises were made. Though plainly inappropriate, the ex parte communication was limited to a ten or fifteen minute discussion, often couched in general terms, of the appropriate discipline for a striking public employee union. This behavior falls short of the "corrupt tampering with the adjudicatory process" found by this court in WKAT, Inc. v. FCC, 296 F.2d 375, 383 (D.C.Cir.), cert. denied, 368 U.S. 841, 82 S.Ct. 63, 7 L.Ed.2d 40 (1961).

Second, A. L. J. Vittone found that the Applewhaite/Shanker dinner had no effect on the ultimate decision of Member Applewhaite or of the FLRA as a whole in the PATCO case. None of the parties have disputed this finding. Indeed, even Member Frazier, who initiated the FBI investigation of the dinner, testified that "in his opinion the Shanker-Applewhaite dinner did not have an effect on Member Applewhaite ultimate decision in the PATCO case." Findings at 28, P 50.52

Third, no party benefited from the improper contact. The ultimate decision was adverse to PATCO, the party whose interests were most closely aligned with Mr. Shanker's position. The final decision also rejected the position taken by the AFL-CIO as amicus curiae and by Mr. Shanker in his dinner conversation with Member Applewhaite.

Finally, we cannot say that the parties were unfairly deprived of an opportunity to refute the arguments propounded in the ex parte communication. PATCO has not identified any manner in which it was denied a reasonable opportunity to respond or any new arguments which it would present to the FLRA if given an opportunity.53 Understandably, the FAA does not complain that its interests were injured. Moreover, Mr. Shanker's arguments regarding the severity of decertification paralleled PATCO's own arguments before the FLRA. The FAA and the FLRA General Counsel had a full opportunity to refute these arguments before the Authority.

We in no way condone Mr. Shanker's behavior in this case. Nor do we approve Member Applewhaite's failure to avoid discussion of a case pending before the Authority. Nevertheless, we do not believe that the Applewhaite/Shanker dinner, as detailed in A. L. J. Vittone's findings, irrevocably tainted the Authority's decision-making process or resulted in a decision unfair either to the parties or to the public interest.

E. Member Applewhaite's Alleged "Personal Interest" in the PATCO Case

As we have noted, the special evidentiary hearing ordered in this case has filled in much of the factual picture left incomplete by the McGrath affidavit and the FBI reports. One feature of the picture revealed by the inquiry is the contents of Member Applewhaite's and Mr. Shanker's dinner conversation. A. L. J. Vittone found that near the end of their conversation Member Applewhaite observed that "he was concerned about his prospects for reappointment in July 1982." He also commented that, "because the PATCO case was hotly contested, he would be viewed with disfavor by whichever side he voted against." In response, "Mr. Shanker urged Applewhaite to vote without regard to personal considerations." Findings at 17, P 15.

Based essentially on this brief conversation, Member Frazier now proposes that Member Applewhaite had a personal interest in the outcome of the PATCO case. Member Frazier contends that the record shows that Member Applewhaite was concerned that if he voted in favor of PATCO, he would not be reappointed by the Administration, and that if he voted against PATCO (and was not reappointed), his career in labor law would suffer from organized labor's reaction to his vote. Because of these alleged personal interests in the outcome, Member Frazier argues that Member Applewhaite was disqualified from hearing the PATCO case.

We do not read as much into this conversation as does Member Frazier. It is not surprising that an agency member appointed by the President might be concerned about his prospects for reappointment. We are not so naive as to believe that such thoughts do not cross a member's mind.54 Nor would we assume that an Authority Member would believe that his decisions are irrelevant to the President's determination whether to reappoint him. Similarly, it is hardly surprising for Member Applewhaite to recognize that his decision in a hotly contested case would not receive universal approbation. The appropriate question here is not whether Member Applewhaite recognized that his decision might not be universally approved; rather, the correct inquiry is whether Member Applewhaite's concerns rendered him incapable of reaching a fair decision on the merits of the case before him.55

The cited brief conversation between Member Applewhaite and Mr. Shanker does not demonstrate an inability to fairly decide the case. Courts have long recognized "a presumption of honesty and integrity in those serving as adjudicators." Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 1464, 43 L.Ed.2d 712 (1975). Accord, NLRB v. Donnelly Garment Co., 330 U.S. 219, 229, 67 S.Ct. 756, 761, 91 L.Ed. 854 (1947); United States v. Morgan, 313 U.S. 409, 421, 61 S.Ct. 999, 1004, 85 L.Ed. 1429 (1941). Absent a strong showing to the contrary, an agency adjudicator is presumed to act in good faith and to be capable of ignoring considerations not on the record. See, e.g., FTC v. Cement Institute, 333 U.S. 683, 700-03, 68 S.Ct. 793, 803-04, 92 L.Ed. 1010 (1948); Lead Industries Association v. EPA, 647 F.2d 1130, 1178 (D.C.Cir.), cert. denied, 449 U.S. 1042, 101 S.Ct. 621, 66 L.Ed.2d 503 (1980).

Member Frazier argues that there is a strong showing in this case because here we have an open admission of Member Applewhaite's concerns. Such a verbalization of an agency adjudicator's thoughts on the public record, argues Member Frazier, is rare. While it may indeed be rare, we think that is the result of the rarity of evidentiary hearings such as we have ordered here, and not the product of an especially strong personal concern by Member Applewhaite.56

Indeed, any doubts we might otherwise have about the source of Member Applewhaite's ultimate decision in this case have been dispelled by the evidentiary hearing and the A. L. J.'s findings. Member Applewhaite did believe that he would be viewed with disfavor by whichever side he voted against.57 But Member Applewhaite explained that this was no different from any arbitration case in which he had ruled-one party wins and the other loses. He testified: "I have always faced that problem(,) so I just have to call it like it is and ... take my chances." Tr. 744. We have no reason to doubt this testimony. Furthermore, A. L. J. Vittone's findings reveal that the PATCO case was never mentioned in Member Applewhaite's contacts with Administration officials. Findings at 32, PP 4-6; at 34-35, PP 8-10, 12. A. L. J. Vittone found that Member Applewhaite never "held out his vote in PATCO as deserving consideration by the Administration with respect to his possible reappointment," id. at 35, P 13, and that his conversations with Administration officials "did not affect in any manner Applewhaite's decision in the PATCO case," id. at 35, P 14. In these circumstances, Member Frazier's concerns about Member Applewhaite's bias are simply inapposite.58 Thus, we believe that the evidentiary hearing has refuted "even the probability of unfairness." In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955). A remand on the basis of personal interest is therefore unnecessary.59

Our review of the record of the special evidentiary hearing, and of the findings of Judge Vittone, leads us to a simple conclusion: There is no reason to vacate the FLRA decision or to remand the case to the FLRA for any further proceedings. We have not found any ex parte communications that irrevocably tainted the Authority's decision. Nor have the proceedings effected procedural unfairness on any of the parties.

This is not to say that the Authority's handling of the case has been a paragon of administrative procedure. It certainly has not. Because "the suggestion of behind-the-scenes machinations (was) intolerable," Professional Air Traffic Controllers Organization v. FLRA, 672 F.2d 109, 113 (D.C.Cir.1982) (per curiam), we ordered an extensive inquiry and gave all participants an opportunity to demonstrate why (if they so believed) the proceedings should be extended or begun anew. We have carefully examined the alleged indiscretions and improprieties. Although we have found one (or possibly two) statutory infringements, we conclude that no parties have been prejudiced by the flaws in the proceedings.

Of course, we recognize that it would be possible to vacate the FLRA Decision and to remand for reconsideration. Although that might produce a new record free from procedural defects, it would serve no other useful purpose. We, and all the parties, know the positions of each Authority Member. We know also that those positions are not the misbegotten offspring of improper influences. All of the Members have testified that they would reach identical conclusions upon reconsideration, and we have no reason to doubt their sworn testimony.

Moreover, the facts of this case are free from any arguable taint. The extensive inquiry revealed no improper attempts to influence Chief A. L. J. Fenton or his fact-finding. The FLRA did not alter his factual conclusions. The principal issues decided by the Authority, therefore, are legal. We, of course, will independently review those legal issues. Any arguable taint that may remain will therefore be cured. See, e.g., Gulf Oil Corp. v. FPC, 563 F.2d 588, 612 (3d Cir. 1977) ("Judicial review is fully capable of correcting bias as to legal questions"), cert. denied, 434 U.S. 1062, 98 S.Ct. 1235, 55 L.Ed.2d 762 (1978); Marquette Cement Manufacturing Co. v. FTC, 147 F.2d 589, 594 (7th Cir. 1945), aff'd sub nom. FTC v. Cement Institute, 333 U.S. 683, 68 S.Ct. 793, 92 L.Ed. 1010 (1948).

We have already extended the appellate consideration of an important case. The criminal investigation by the FBI and the special procedures that we have employed should put to rest any doubts about the legitimacy of the Authority decision. Because remand would therefore be a futile gesture, we proceed to the consideration of the merits.

III. PATCO'S VIOLATION OF THE BAN ON FEDERAL EMPLOYEE STRIKES

On the merits of this case, PATCO presents the court with two questions for review. The first question, which is addressed in this Part III., is whether the FLRA's finding that PATCO called, participated in, and condoned a strike is supported by substantial evidence. The second question, which is addressed infra in Part IV., is whether the FLRA properly exercised its discretion under the Act in revoking the exclusive recognition status of PATCO.

Section 7123(c) of the Civil Service Reform Act declares that "(t)he findings of the Authority with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive." 5 U.S.C. § 7123(c) (Supp. IV 1980). This language is identical to that governing judicial review of the decisions of the National Labor Relations Board, see 29 U.S.C. § 160(e) (1976), and Congress clearly intended the scope of review of FLRA factual findings to be identical to that of NLRB findings.60 Thus, although this is one of the first occasions that this court has had to apply the substantial evidence rule in connection with disputed findings in an unfair labor practice hearing before the FLRA, the scope of our review is well-settled. See, e.g., Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); UAW v. NLRB, 392 F.2d 801, 805 (D.C.Cir.1967), cert. denied, 392 U.S. 906, 88 S.Ct. 2058, 20 L.Ed.2d 1364 (1968). The judicial function is merely to review the substantiality of the evidence underlying the agency decision, not to "displace the (agency's) choice between two fairly conflicting views." That test of substantiality is met when the record before the court does not "preclude( ) the (agency's) decision from being justified by a fair estimate of the worth of the testimony of the witnesses or its informed judgment on matters within its special competence or both." Universal Camera, 340 U.S. at 488, 490, 71 S.Ct. at 464, 465.

In this case it fully appears that the record before the FLRA provided a rational justification for its finding that PATCO "call(ed), or participate(d) in, a strike," an unfair labor practice prohibited by 5 U.S.C. § 7116(b)(7)(A) (Supp. IV 1980).61 As described above, the record contained evidence of simultaneous picketing by striking air traffic controllers at five separate FAA facilities. In each case the picketers carried signs indicating that they were on strike and that they belonged to a particular PATCO Local. In several cases FAA officials, viewing photographs taken during the strike, identified individual picketers as air traffic controllers (including certain PATCO Local officers); many of the persons identified were controllers who were scheduled for work at the times when the photographs were taken. In addition, FAA records also established massive absenteeism on August 3 and thereafter by air traffic controllers nationwide.

PATCO objects to the adequacy of this evidence, contending that it establishes only that strikes were conducted by certain PATCO Local unions, while the Respondent before the FLRA was the PATCO National union. Whatever weight PATCO's contention might otherwise have is seriously diminished by the evidence of the simultaneous picketing at numerous work locations and by the evidence of the nationwide scope of absenteeism by controllers on and after August 3. However the evidence is interpreted, it certainly cannot be characterized as "a wildcat strike on the part of one of (PATCO's) Locals." PATCO Reply Brief at 12. The weight of PATCO's contention is even further diminished by the fact that the PATCO National union was the exclusive bargaining agent for all bargaining unit members. For several months prior to August 3, the PATCO National union, and not the Locals, had engaged in collective bargaining with the FAA for a national agreement. The FLRA was entitled to draw a reasonable inference from the national bargaining unit and from the nationwide picketing and absenteeism-viz., that the PATCO National union, and not merely a collection of PATCO Locals, was on strike.62

Moreover, the FAA introduced into evidence two videotapes of PATCO National union President Robert Poli making statements regarding the strike at news conferences.63 In the first videotape, Poli is recorded as announcing that the strike would begin on the morning of August 3 if no satisfactory settlement proposal was reached and if tallying of a strike vote revealed the necessary support. PATCO notes that this statement was not an actual strike call, but at most a prediction or a suggestion of conditions precedent to a strike. While what PATCO notes is indeed true, the statement nonetheless carries significant weight in light of the fact that Poli's "predicted" time of the strike exactly coincided with the extensive picketing and massive absenteeism. In the second videotape, Poli was recorded as making the simple statement: "The question is will the strike continue. The answer is yes." PATCO again contends that the statement is "no more than a prediction-a speculation about future events." PATCO Brief at 22-23. While the characterization given Poli's statement by PATCO is not totally inaccurate, it does not undercut the FLRA's finding. Poli's acknowledgement of the strike and his quite certain "prediction" that it would continue negate any attempt by PATCO to disassociate the PATCO National union from the widespread and simultaneous strike activity by PATCO members nationwide.

In these circumstances-simultaneous and widespread absenteeism by union members, picketing announcing various union locals as being on strike, and accurate statements by the union president that a strike would take place under certain conditions and then that that strike would continue-we have no difficulty concluding that the FLRA's finding was supported by substantial evidence on the record as a whole. Our conclusion is made more certain by the total absence of record evidence offered by PATCO in refutation. Thus, we affirm the FLRA's finding that PATCO "call(ed), or participate(d) in, a strike" in violation of 5 U.S.C. § 7116(b)(7)(A) (Supp. IV 1980).

PATCO also objects to the conclusion of the FLRA that PATCO committed a separate unfair practice of condoning a strike "by failing to take action to prevent or stop such activity," a violation of 5 U.S.C. § 7116(b)(7)(B) (Supp. IV 1980).64 After finding that the evidence presented was sufficient to establish the prima facie existence of a strike, Chief A.L.J. Fenton ruled that the burden shifted to PATCO to produce evidence showing that it had taken some action to prevent or to stop the strike.65 PATCO offered no such evidence.

PATCO does not now object to the legal principle followed by Judge Fenton regarding the shifting of the burden; instead, PATCO contends that there was insufficient evidence to shift the burden in this case. PATCO argues that the FLRA General Counsel failed to prove that the PATCO National union was aware of the strike at any time during which it could have taken action to stop it; hence, it argues that the General Counsel failed to establish that National union had any obligation under section 7116(b)(7)(B) to attempt to stop the strike.66

Given our affirmance of the unfair labor practice finding under section 7116(b)(7)(A), it necessarily follows that the FLRA could conclude that the PATCO National union was aware of the strike and, as a consequence, had a statutory obligation to attempt to stop the strike activity. In addition, we believe that the FLRA was fully justified in taking official notice of proceedings in the District Court for the District of Columbia. During the early morning of August 3, 1981, the District Court issued a restraining order against the PATCO strike. During the evening of that same day, the District Court found both the PATCO National union and its President, Robert Poli, in civil contempt for violation of the restraining order. United States v. Professional Air Traffic Controllers Organization, 107 L.R.R.M. (BNA) 3210 (D.D.C.1981). In these circumstances, PATCO certainly cannot claim lack of knowledge of