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No, the AIRR Act's Air Traffic Control Reforms Do Not Grant Controllers Strike Powers

Capital Research Center, a conservative policy group in Washington, D.C., recently published an extended essay, “PATCO’s Revenge: Capitol Hill cronyism may give the air traffic controllers what they always wanted,” by Steven J. Allen. Allen alleges that the House’s AIRR Act air traffic control title—which spins off air traffic control from the Federal Aviation Administration into a new independent nonprofit ATC Corporation described in more detail in this CEI report—contains labor provisions that would allow the air traffic control union to legally strike, something currently prohibited under federal law. However, Allen’s frightening thesis is built upon a fundamental misunderstanding of federal labor law and the reforms contained in the AIRR Act.

Under the proposed legislation, air traffic controllers will still be prohibited from striking. Section 90703 in the AIRR Act (p. 97) extends 5 U.S.C. Chapter 71 to cover the ATC Corporation’s controllers. This includes 5 U.S.C. § 7116(b)(7), which makes it an unfair labor practice for a union covered by the statute “to call, or participate in, a strike, work stoppage, or slowdown, or picketing of an agency in a labor-management dispute if such picketing interferes with an agency’s operations, or . . . to condone any activity . . . by failing to take action to prevent or stop such activity.”

Striking or failing to prevent a strike would constitute an unfair labor practice enforceable by the Federal Labor Relations Authority. In response, management can obtain an order from the Authority stopping the strike under 5 U.S.C. § 7118(a)(7), which can then be enforced in the federal district courts under 5 U.S.C. § 7123(d).

The only plausible explanation for Allen’s misunderstanding is a belief that the air traffic controllers’ union is secretly planning to challenge Congress’s law that makes the ATC Corporation a fictitious legal federal agency for limited labor relations purposes.

However, this becomes extremely unlikely when one considers 5 U.S.C. § 7120(f), which in the event of a strike, work stoppage, slowdown, or failure to prevent a strike, strips the “exclusive recognition status of the labor organization, which shall then immediately cease to be legally entitled and obligated to represent employees in the unit.” In other words, if the union strikes and challenges the ATC Corporation’s limited legal status as a federal agency and then loses in court, the union will likely be put out of business.

The air traffic controllers’ union, the National Air Traffic Controllers Association (NATCA), has not once in these negotiations expressed interest in gaining a legal right to strike. Is Allen suggesting that NATCA would risk its very existence in order to mount a highly dubious legal challenge to the law? If there is any evidence that NATCA has become suicidal, it’s a well-kept secret.

CEI believes the House’s AIRR Act could be strengthened (see here and here for examples), but we strongly favor the bill’s proposed air traffic control reforms—along with most free market scholars and advocates who have worked on this issue. For a partial list, see this recent coalition letter to members of Congress, as well as the Cato Institute’s Chris Edwards on why these proposed reforms should be supported.