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, because the violation involves a stated threat to take action, rather than the action itself. Thus, as in that case, the Authority may adjudicate the alleged violation of the Statute without resolving an underlying controversy that is military in nature.
I disagree with the majority that the military "context" of the disputed statement determines our jurisdiction. Majority Opinion at 11. In this regard, virtually all aspects of a dual status employee's work have a military context. I believe the relevant inquiry is whether the resolution of the underlying controversy requires us to review -- or interfere with -- such a decision. This is the heart of the justiciability doctrine and, in my view, should be its limit.
Turning to the merits, the Authority's test for determining whether a statement violates section 7116(a)(1) focuses on whether the statement has the effect of deterring a reasonable employee from engaging in protected activity, and the statement here is similar to statements that have been found to violate the Statute. See, e.g., United States Dep't of Agric., 49 FLRA at 1034-35 (statement implying that official time use led to perception of poor performance); Veterans Admin. Med. Ctr., Memphis, Tenn., 39 FLRA 388 (1991) (statement that employee could not be trusted because he filed an unfair labor practice charge); United States Treasury Dep't, Bureau of Engraving and Printing, 19 FLRA 366 (1985) (statement that employee would "suffer the consequences" of taking time off for union business). A statement that an employee is being deprived of an opportunity to participate in a desirable assignment because of protected activity clearly would deter a reasonable employee from engaging in protected activity. Therefore, I would find that the Respondent violated section 7116(a)(1).
I would direct Respondent's supervisors to cease making coercive statements such as that in this case, even though the statement referred to a military decision that is beyond the reach of the Authority. As the Authority has noted, limitations on Authority jurisdiction over dual status employees may make difficult, if not impossible, the meaningful enforcement of rights Congress granted to employees. See Puerto Rico Air National Guard, 56 FLRA at 182. In this context, finding that the statement violates the Statute results in a situation where employees would be protected from threats of retaliation, but not the retaliation itself, where it involves military aspects of employment that are outside the Statute's coverage. This situation is far from desirable but, in my view, limited protection of the employees' rights is better than no protection at all, and effectuates the purposes and policies of the Statute.
Footnote * for 57 FLRA No. 188 - Opinion of Member Pope
In concluding that Puerto Rico Air Nat'l Guard does not support the Authority's jurisdiction over the disputed statement here, the majority emphasizes the factual differences between the two cases but, in so doing, ignores the principles underlying both. While, as a factual matter, the relevant portion of Puerto Rico involved security determinations, not military decisions, the rationales for restricting review of both are the same. In this regard, non-reviewable agency discretion over security clearances "flows primarily from" the President's role as the "Commander in Chief of the Army and Navy of the United States." Egan, 484 U.S. at 527 (quoting U.S. Const., Art. II, § 2). Both doctrines are rooted in military authority and are based on the determination that outside decision- makers should not, and are ill-equipped to, interfere in sensitive military and foreign affairs matters. Compare id. at 529, with Chappell, 462 U.S. 296, 301, 305. Thus, the Authority's conclusion that it possessed jurisdiction in Puerto Rico Air Nat'l Guard, where the reason for the respondent's security clearance determination was not at issue, supports the conclusion that it possesses jurisdiction over the statement here, where the reason for the respondent's military decision is not at issue.