File 2: Opinion of Member Pope
[ v57 p889 ]
Member Pope, concurring in part and dissenting in part:
I agree with the majority that the Authority lacks jurisdiction over the allegation that the Respondent violated section 7116(a)(2) of the Statute when it removed the ART from a list of employees available (as alternates) for a military deployment. The "underlying controversy" involved in that allegation is a military decision and, thus, is not justiciable. Puerto Rico Air Nat'l Guard, 56 FLRA at 179. I disagree with the majority that the Authority lacks jurisdiction over the allegation that the Respondent violated section 7116(a)(1) when the ART's supervisor told him that he had been removed from the deployment list for making "too many waves."
In my view, the justiciability concerns that preclude the Authority from examining the Respondent's decision to remove the ART from the alternate deployment list do not apply to the examination of the statement. It is clear, in this regard, that the coercive statement was made by the ART's civilian supervisor, during a period of the civilian employment, and refers to civilian protected activity. While the statement related to a military decision, it is not necessary to examine that decision to determine that the statement coerced the technician in the exercise of protected, civilian rights.
In Puerto Rico Air Nat'l Guard, 56 FLRA at 180, the Authority reviewed the discriminatory revocation of a security clearance. Because the agency's discriminatory motive was conceded, the review did not require that it evaluate "the substance of [the] underlying decision[.]" Id., citing Egan, 484 U.S. at 520. Similar logic, applied here, dictates that the Authority has jurisdiction. [n*] Specifically, as in Puerto Rico Air Nat'l Guard, the substance of the military decision to remove the ART from the list of those eligible for deployment is not at issue,