File 2: Opinion of Member Pope
[ v60 p759 ]
Dissenting Opinion of Member Carol Waller Pope:
In dismissing the complaint, the majority rubber-stamps, without analyzing, the Judge's decision. In my view, any thoughtful application of the Authority's well-established legal standards compels a conclusion that the Respondent violated the Statute by both the Warden's statement to, and failure to promote, Nicholls. Accordingly, I dissent.
As for the allegation that the Respondent violated § 7116(a)(1) by the Warden's statement to Nicholls, the majority opinion consists solely of a recitation of the Judge's factual findings and a summary conclusion that "the Judge reasonably distinguished the factual setting" of the disputed statement in this case from that involving previous statements of the Warden to Nicholls. [n1] Majority Opinion at 13. The majority concludes that, "based on that distinction," the Judge properly dismissed the § 7116(a)(1) allegation. That is, the majority concludes that the § 7116(a)(1) allegation should be dismissed because the facts involving the disputed statement here are different from the facts involving the previous, unlawful statements. It is, of course, obvious that the facts are different. What the majority fails to explain is why the different factual setting matters.
A proper application of the standard for resolving alleged § 7116(a)(1) violations demonstrates that the Respondent violated the Statute. In this connection, it is well established that a statement violates § 7116(a)(1) if, under the circumstances, a reasonable person would likely draw a coercive inference from the statement. See, e.g., Dep't of the Air Force, Ogden Air Logistics Ctr., Hill Air Force Base, Utah, 35 FLRA 891, 895 (1990). The Judge found that the Warden "said something about being unwilling to help a small group of officers in their careers" based on that group's previous opposition to the Warden. Judge's Decision at 13. The record establishes -- indeed, the Warden conceded -- that the group of employees to whom the Warden referred were active supporters of and officers in the Union, and that their Union activity was a reason he would not help them. See Tr. at 248 (Warden testified that the employees "used the Union" and that "[t]here were high [U]nion officials involved"); id. at 250 (Warden testified that the employees' efforts to harm him "was Union-based, so a lot of people want to point to the Union" and that the Union was "a good vehicle. They did a good job. They were very effective.") Nicholls was aware of this connection between the referenced employees and their Union activities because, as noted above, the Warden previously made unlawful statements to Nicholls regarding Nicholls's activity in connection with the Union and the same group of employees. See Florence, slip. op. at 9, 11.
Put simply, the Warden (1) made statements that he was unwilling to help a group of Union officers in their careers (2) to the same employee to whom the Warden previously made coercive statements in connection with that employee's protected activities (3) in circumstances where the employee was aware of the connection between the referenced employees and their Union activities. It is unclear how a reasonable person in Nicholls's situation could not draw a coercive inference -- that active participation in the Union could be harmful to one's career -- from the Warden's statements. This is true whether or not the Warden expressly included Nicholls within the group of employees he referenced or stated outright the connection between that group and the Union. The Judge's findings that the Warden did not do so are simply beside the point.
With regard to the allegation that the Respondent violated § 7116(a)(1), (2) and (4) by failing to select Nicholls for promotion, the majority again creates the appearance of an analysis by reciting, at length, factual findings by the Judge. The majority then defers to those findings without explaining why they support a conclusion that no violation occurred. Applying the appropriate standard, I would find, for the following three reasons, that the failure to select Nicholls for promotion violated the Statute.
First, as the Judge found, Nicholls engaged in protected activity when he: made written entries on the Union's website; filed an unfair labor practice (ULP) charge regarding the Warden's coercive comments of August 1999; and testified at the ULP hearing in connection with that case. See Judge's Decision at 15.
Second, the context of the Warden's actions -- the prior relationship between Nicholls and the Warden vis a vis the Warden's unlawful activity in 1999 -- supports a conclusion that this protected activity was a motivating factor in the failure to promote Nicholls. Indeed, the Judge acknowledged that Nicholls's successful pursuit of the previous ULP "may give rise to an inference of an improper motive[.]" Id. at 16. The Judge then refused to draw that inference because he found that the time between the prior ULP decision and [ v60 p760 ] the circumstances at issue here was "relatively long[.]" Id. The gap was not relatively long, however. The gap in time between the two events was only eleven months -- a relatively short period by any standard. That fact, coupled with the fact that Nicholls successfully pursued a ULP charge against the Warden a mere eleven months before the incident at issue here, support a conclusion that the protected activity was a motivating factor in the Warden's failure to promote Nicholls. Accordingly, the GC established a prima facie case, under Letterkenny, that the Respondent violated the Statute. [n2]
Third, the Respondent has failed to offer any reliable evidence regarding an alternative motive for the Warden's failure to promote Nicholls and, as such, has failed to satisfy its burden to establish a defense under Letterkenny. As an initial matter, I would find that the Judge erred by not addressing the GC's request to draw an adverse inference from the Respondent's failure to respond to a subpoena requiring production of Nicholls's quarterly ratings. I would draw this adverse inference and find that the missing ratings indicate that Nicholls's performance supported promoting him. In addition, although the Warden testified that a subordinate had claimed that Nicholls abused sick leave, see Tr. at 255, there is absolutely no evidence of such abuse, and the Warden's testimony on this point is contradictory. Compare id. at 256 (Warden testified that he "wasn't . . . interested" in whether Nicholls abused sick leave); with id. at 257 (Warden testified that it was "critical to the institution.") Likewise, although the Warden testified that Nicholls's time in the "trenches" was not a "strong point" in Nicholls's favor, it is undisputed that the rating panel found that Nicholls was tied with two other employees for first place in the factor of post assignments. Id. at 259. Finally, although the Warden testified that he relied on assessments by his lieutenants and that the lieutenants did not "support" Nicholls, the Warden conceded that he "couldn't begin to tell . . . what it was that they said." Id. at 261. When coupled with the first and second factors above, the Respondent's failure to offer reliable evidence of an alternative reason for failing to promote Nicholls compels one, and only one, conclusion: the Warden's failure to select Nicholls for promotion was motivated by Nicholls's protected activity. [n3]
For the foregoing reasons, I dissent. In addition to issuing an order and notice posting, I would find that the Respondent's violation of § 7116(a)(1), (2) and (4) of the Statute directly resulted in the failure to promote Nicholls, and I would direct make-whole relief to include the loss of pay, allowances and differentials that would have accompanied such a promotion. See, e.g., Letterkenny, 35 FLRA at 127.
Footnote # 1 for 60 FLRA No. 144 - Opinion of Member Pope
The Warden previously made unlawful statements to Nicholls regarding Nicholls's activity involving the Union and the same group of employees. See United States Penitentiary, Admin. Maximum, Florence, Colo., FLRA ALJ Dec. Rep. No. 151, Case No. DE-CA-90530, slip. op. at 9, 11 (June 16, 2000) (Florence).
Footnote # 2 for 60 FLRA No. 144 - Opinion of Member Pope
In my view, the GC raises serious questions regarding the appropriateness of the Judge's decision to resolve this aspect of the complaint without regard to the shifting-burden analysis set forth in Letterkenny. See Exceptions at 15-16 (GC asserts that the Judge's "conflation of the . . . [GC's] prima facie case and the Respondent's rebuttal evidence . . . to a single step effectively decreases or eliminates Respondent's obligation to rebut the showing of a prima facie violation . . . by a preponderance of the evidence."). However, as the record demonstrates that the Respondent violated the Statute without regard to the sequence of analysis, in my view, I would find it unnecessary to resolve the GC's claim in this case.
Footnote # 3 for 60 FLRA No. 144 - Opinion of Member Pope
As the Respondent failed to provide reliable evidence on this point, I find it unnecessary to address the GC's claim that the Judge erred by not drawing an adverse inference from the Administrative Lieutenant's failure to testify. I note, however, that the majority's finding that the Administrative Lieutenant's testimony would be "cumulative" evidence is, at best, pure speculation. Majority Opinion at 15 n.3. In this regard, there is absolutely no evidence in t