File 2: Opinion of Member Pope

[ v57 p859 ]


Member Pope, dissenting in part:

      I agree with the majority that the Respondent violated § 7116(a)(1) and (5). I dissent as to the majority's unexplained departure from precedent in refusing to grant a status quo ante remedy.

      The law to be applied in determining the appropriate remedy in this case is clear. In particular, there is no question that determining whether a status quo ante remedy would result in disruption to the efficiency and effectiveness of an agency's operations -- the fifth FCI factor -- must be based on record evidence concerning "how, and to what degree," such a disruption would occur. [n1] Fed. Bureau of Prisons, Fed. Corr. Inst., Bastrop, Tex., 55 FLRA 848, 856 (1999) (BOP, Bastrop); United States Dep't of the Army, Lexington-Blue Grass Army Depot, Lexington, Ky. 38 FLRA 647, 649-50 (1990). There also is no question that the party alleging that a status quo ante remedy is not appropriate bears the burden of persuasion through "specific allegations." Dep't of Health & Human Serv., SSA & SSA, Field Operations, Region II, 35 FLRA 940, 953 (1990).

      I believe that the application of the law to the facts in this case also is clear. In this regard, the Respondent does not explain, and there is no evidence in the record in any way describing, how or to what degree a return to the <