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