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 status quo would disrupt the Agency's operations. The Respondent's sole witness provided no explanation of how, or to what degree, a return to the previous staffing level would compromise security or otherwise cause a disruption (or how the previous staffing level had caused any disruption in the past). While the witness referred to a vulnerability assessment, the Respondent made no attempt to either introduce that assessment into the record or otherwise describe it.
In concluding that a status quo ante remedy is not warranted, the majority relies on testimony that the increase in staffing was based on a "vulnerability assessment" that is neither contained nor described in the record. The majority points out that there was no "challenge to the conclusion of the vulnerability assessment." Majority opinion at 14. However, the majority does not explain how the General Counsel reasonably could be expected to challenge a document that is not contained in the record. The majority simply accepts -- [ v57 p860 ] without requiring evidence supporting -- the Respondent's characterization of the assessment. [n2]
Under similar circumstances -- including "special security concerns" of "paramount importance" -- the Authority granted a status quo ante remedy. BOP, Bastrop, 55 FLRA at 856. (internal quotations omitted). It is significant that the Authority in BOP, Bastrop specifically rejected the respondent's reliance on testimony of its witnesses that disruption would result from a status quo ante remedy. The Authority held that "specific evidence in the record concerning how, and to what degree, such disruption would occur" was required. Id.
Application of this precedent -- on which the majority opinion is completely silent -- requires a conclusion that a status quo ante remedy is warranted. [n3] By disregarding the requirement that the Respondent provide specific evidence of disruption -- and relying instead on the General Counsel's failure to challenge testimony based on an unsubstantiated document -- the majority shifts the burden of proof away from the Respondent without either acknowledging that, or justifying why, it is doing so. Accordingly, I respectfully dissent. [n4]
Footnote # 1 for 57 FLRA No. 183 - Opinion of Member Pope
The majority's decision clearly establishes that the first four FCI factors weigh in favor of a status quo ante remedy. As the majority finds that no status quo ante remedy is warranted based only on the fifth FCI factor, I do not further address the first four factors.
Footnote # 2 for 57 FLRA No. 183 - Opinion of Member Pope
The majority's emphasis on the vulnerability assessment may create the impression that there was, in fact, extensive testimony regarding it. Such impression would be false, however, because the following is that testimony (by the Respondent's Chief of Security Services on direct examination), in its entirety:
Q All right. Let me turn your attention to March of this year, and was there a time when you determined that it would be necessary to increase the minimum manning on shifts from four to five individuals?
A There was a time that I had to increase the manning from four to five . . . . [W]e were -- we had a vulnerability assessment and the team brought that out as a negative that we only had four people working. And what it was, we needed a second Security Force member on the flight line protecting the Priority C Resources. We only had one. So I had to have two people out there at all times.
Transcript at 302-03.
Footnote # 3 for 57 FLRA No. 183 - Opinion of Member Pope
Footnote # 4 for 57 FLR