[00:00:00] Speaker 04: Case number 19, Judge 1069, American Federation of Government Employees, AFL-CIO, local 1929 petitioner versus Federal Labor Relations Authority. [00:00:12] Speaker 00: Mr. Milledge for the petitioner, Mr. Peters for the respondent. [00:01:34] Speaker 04: May I please support, my name is Matthew Millage. [00:01:36] Speaker 04: I represent the American Federation of Government Employees, Local 1929, in this matter. [00:01:43] Speaker 04: The court should grant petitioners petition in this case for three reasons. [00:01:49] Speaker 04: The authority's decision is contrary to the text, structure, and purpose of Section 7103A14 and the statute itself. [00:01:59] Speaker 04: Even if the authority's decision weren't contrary, [00:02:02] Speaker 04: to the statute, which it is. [00:02:04] Speaker 04: The authority's interpretation is unreasonable. [00:02:07] Speaker 04: And finally, the authority's proffered reasons in support of the decision cannot withstand scrutiny. [00:02:16] Speaker 04: Starting with the text structure and purpose of the statute, the text of Section 7103A14 states that conditions of employment means personnel policies, practices, and matters affecting working conditions. [00:02:32] Speaker 04: The authority notes and finds that there was an agency memorandum that affected working conditions, but they found nevertheless that it didn't affect conditions of employment. [00:02:45] Speaker 04: That cannot follow from the plain text of the statute. [00:02:50] Speaker 01: How did you get the first part that the authority found that there was a change that affected working conditions? [00:02:58] Speaker 01: So one thing is that the clear on whether the rationale was that there's an effect on working conditions, but nonetheless doesn't carry over the conditions of employment, or whether it is that there wasn't an effect on working conditions to begin with, and therefore, of course, it doesn't carry over the conditions. [00:03:13] Speaker 04: Well, petitioner's reading is that the authority's decision in this case is that there was an agency memorandum that affected working conditions, but those did not rise to the level of conditions of employment. [00:03:24] Speaker 01: And where are you getting the first part? [00:03:27] Speaker 01: I'm not saying that's necessarily wrong. [00:03:29] Speaker 01: I'm just saying, what's the best indication that that was the authority's conclusion? [00:03:34] Speaker 04: Yeah. [00:03:34] Speaker 04: It's from the beginning of their decision. [00:03:36] Speaker 01: Uh-huh. [00:03:43] Speaker 04: OK. [00:03:43] Speaker 04: So I believe it's the second paragraph in their decision. [00:03:46] Speaker 04: Yeah. [00:03:48] Speaker 04: The specifically sentence? [00:03:51] Speaker 04: One moment, Your Honor. [00:03:54] Speaker 04: where they say specifically, yes, the issuance of a memorandum which affects working conditions but not conditions of employment does not constitute a change over which CBP must bargain. [00:04:04] Speaker 01: Right. [00:04:05] Speaker 01: And they're setting out their legal conclusions. [00:04:10] Speaker 01: Because the decision sort of proceeds in two phases. [00:04:14] Speaker 01: First, there's a legal decision that we're going to part ways with what we've been doing before. [00:04:19] Speaker 01: Here's our new understanding. [00:04:20] Speaker 01: And then the second part is here's the application of that understanding. [00:04:25] Speaker 01: You read those to be harmonious and specifically to cover both of them? [00:04:33] Speaker 04: I read that as the only way of having this decision, having a modicum of sense to flow from it because if there was no change, if the memorandum did not affect working conditions or did not change working conditions, there's no need for any change in precedent because the memorandum didn't affect working conditions, you don't get there in the first place. [00:04:54] Speaker 04: And so it only follows for me that in order for them to reach that, they must first have determined that there was a matter that affected working conditions, but did not also affect conditions of employment. [00:05:07] Speaker 04: What are working conditions? [00:05:09] Speaker 04: What are working conditions? [00:05:11] Speaker 04: So the statute doesn't define what working conditions are. [00:05:16] Speaker 03: This opinion doesn't. [00:05:18] Speaker 03: The agencies or the authorities' opinion doesn't define what a working condition is, does it? [00:05:23] Speaker 03: That is correct. [00:05:23] Speaker 03: It just says it's different than a condition of employment, but we still don't know. [00:05:28] Speaker 04: That is correct. [00:05:29] Speaker 04: The decision itself does not specify. [00:05:32] Speaker 03: Would you not agree that all work is not necessarily employment? [00:05:39] Speaker 03: Excuse me, Your Honor? [00:05:40] Speaker 03: You would agree that not all work is necessarily also employment? [00:05:47] Speaker 03: If I go out and cut my grass when I'm working, but I'm not employed, right? [00:05:53] Speaker 04: I would not agree for the purposes of this statute that that is correct under the facts of this case. [00:05:58] Speaker 03: What does employee mean? [00:05:59] Speaker 03: Employee means to hire somebody to do work. [00:06:03] Speaker 04: That is the common meaning of the word employee. [00:06:06] Speaker 03: So if I'm doing work without having been hired by anybody, I'm not employed. [00:06:12] Speaker 04: That is correct, Your Honor, however, as a statute. [00:06:16] Speaker 03: Whether that means there's a difference or not, it's not clear to me, but I just come back to the point. [00:06:22] Speaker 03: Yeah, right, fine. [00:06:23] Speaker 03: We can say not all work involves employment, but all employment involves work, right? [00:06:32] Speaker 03: But that doesn't, I don't know where that gets me in this case. [00:06:36] Speaker 04: Yes, Your Honor. [00:06:39] Speaker 04: Under the statute, under Section 7103A14, which is that issue in this case, conditions of employment is defined to mean personnel policies, practices and matters affecting working conditions. [00:06:52] Speaker 04: And so the distinction between conditions of employment and working conditions is not really helpful here, because once you have determined that a matter affects working conditions, under the statute itself, under Section 7103A14, [00:07:08] Speaker 04: it is a condition of employment. [00:07:10] Speaker 01: Well, unless it doesn't come from a personnel policy practice or map. [00:07:13] Speaker 01: That is correct. [00:07:14] Speaker 01: That's the bridge. [00:07:14] Speaker 04: That is correct. [00:07:15] Speaker 04: And in this case here, the agency issued a memorandum, which is found at Joint Appendix 1, that changed the working conditions because it changed how [00:07:28] Speaker 04: the Border Patrol agents conducted inspections at the checkpoint. [00:07:33] Speaker 04: It required multi-occupant vehicles containing at least one non-U.S. [00:07:39] Speaker 04: citizen who presented some form of immigration document to be automatically sent to the secondary for inspections. [00:07:47] Speaker 04: And as the arbitrator found, [00:07:50] Speaker 04: that changed the working conditions of those agents at the primary and the secondary inspection areas. [00:07:57] Speaker 01: But that doesn't necessarily, now I'm not saying this is in the decision, because I'm not sure that it is. [00:08:03] Speaker 01: I'm not sure that it's not, but I'm not sure that it is. [00:08:05] Speaker 01: But that doesn't mean that that document is a personnel policy practice or matter. [00:08:14] Speaker 04: Well, there's no, that is not an issue here because there's no finding from the authority that that wasn't a personnel policy practice or matter. [00:08:21] Speaker 04: There's nothing in the authority's decision finding that it wasn't. [00:08:25] Speaker 04: However, the arbitrator did. [00:08:26] Speaker 04: The arbitrator did find that that was a change in agency policy. [00:08:30] Speaker 04: And there's nothing in the authority's decision contrary to that. [00:08:35] Speaker 04: Your Honor, as I see it, I'm starting to go over my time. [00:08:38] Speaker 04: So if you have any more questions. [00:08:39] Speaker 01: I have one more question. [00:08:42] Speaker 01: is meant to inquire about your understanding of the decision. [00:08:45] Speaker 01: So one thing that I found interesting about the decision is that when it turns from setting out the legal change, the legal change which is that we're no longer going to treat working conditions and conditions of employment as the same thing, we're going to treat them as different, and then it goes to the application of, to the circumstances of this case, there's a reliance on precedent. [00:09:08] Speaker 01: And that's what the authority is pinning [00:09:12] Speaker 01: its argument to here is that there's some prior cases. [00:09:15] Speaker 01: And I'm just wanting to know what your interpretation is of what seems to me to be a little bit of a disconnect to say, we're doing something different, so we're announcing that we're doing something new, and then in applying it, actually we're relying on something we've been doing all the time. [00:09:32] Speaker 01: We're doing something old. [00:09:34] Speaker 01: And it wasn't clear to me how you go from saying that we're switching gears here to saying, now we're relying on an old gear that's always been in place. [00:09:43] Speaker 04: Well, Your Honor, petitioners in agreement with that, we don't think the authority applied the new test at all in this case. [00:09:50] Speaker 04: The authority says they're going to announce a new case, but as far as we can see, there is no application of that test to the facts in this case. [00:09:57] Speaker 04: Instead, they point to precedent, and they mis-rely on that precedent. [00:10:01] Speaker 04: The very first case, they rely on three cases for a proposition that a mere increase in workload [00:10:07] Speaker 04: doesn't constitute a change in conditions of employment. [00:10:12] Speaker 04: However, the facts in the three cases cited are vastly different from the facts here. [00:10:16] Speaker 04: The facts in those three cases cited by the authority were cases where there were external factors that caused the change in working conditions. [00:10:24] Speaker 01: So you may be right, if you're right about the way you're looking at that, I'm not necessarily saying you are, but if you are, [00:10:29] Speaker 01: then any complaints you have about the first part of the decision where there's been a shift in the legal outlook are just irrelevant from your perspective because that wasn't applied to the second half anyway, right? [00:10:40] Speaker 04: So from your perspective, it's kind of just... No, from our perspective, the change in precedent is one of the primary reasons we're here. [00:10:49] Speaker 03: the authority's announcement that a matter... But it had no effect on the decision. [00:10:54] Speaker 03: I mean, I totally agree with my colleague that if on the one hand you say we're changing the rule, and on the other hand we're following cases that were decided before our change in the rule, then who cares about whether the rule's changed? [00:11:12] Speaker 03: This case comes down, it seems to me, tell me, I know you didn't, your brief doesn't say this, but is a workload increase initiated by the agency a change in working conditions? [00:11:30] Speaker 03: If the answer is no, [00:11:32] Speaker 03: then you lose. [00:11:33] Speaker 03: If the answer is yes, then you win. [00:11:36] Speaker 04: Well, Your Honor, I don't believe that's the issue here. [00:11:38] Speaker 04: This is not an increase in workload case. [00:11:40] Speaker 04: Is a change in agency, personnel, policy, practice, or matter affecting working conditions subject to bargaining? [00:11:49] Speaker 04: That is petitioner's argument here, is that one, there was a change to personnel, practice, or matter affecting working conditions, and that it's bargainable. [00:11:58] Speaker 04: It's not that whether there is an increase in workload, that is not the petitioner's case here. [00:12:03] Speaker 04: It's that the agency issued a memorandum that made a change to the working conditions. [00:12:10] Speaker 03: Yeah, the statute doesn't require a change. [00:12:13] Speaker 04: That is correct. [00:12:14] Speaker 04: However, we've gotten wrapped up here in the meaning of conditions of employment and working conditions. [00:12:21] Speaker 04: The authority has present that I believe is undisputed here that a change in conditions of employment is subject to bargaining, barring certain exceptions that are not relevant here. [00:12:32] Speaker 04: And that's never been an issue in this case. [00:12:34] Speaker 04: The only issue here has been whether the facts in this case constituted a change in the conditions of employment. [00:12:42] Speaker 04: So I see them. [00:12:42] Speaker 00: Let me ask you. [00:12:43] Speaker 00: I see you have at least two problems. [00:12:46] Speaker 00: One, these primary and secondary inspection point inspectors could be doing one job at the primary one day and the secondary at the next, right? [00:12:58] Speaker 00: In other words, they weren't assigned if your argument is, well, the secondary is getting a lot more work when a primary could be a secondary the next day. [00:13:12] Speaker 00: I see that as one problem. [00:13:14] Speaker 00: The other problem I see is that you make the argument that there's a loss of discretion in the primary inspectors because now if there are two occupants, one's a U.S. [00:13:26] Speaker 00: citizen, one isn't, they have to send that car to the secondary inspection point. [00:13:33] Speaker 00: But the memo itself, if you have it in a third paragraph, tells the inspectors you may modify this direction [00:13:41] Speaker 00: in order to accommodate local residents, daily commuters, so forth. [00:13:46] Speaker 00: You may also modify this direction when safety to the public and our agents may be an issue, but you are highly recommended to staff full-time secondary positions. [00:13:56] Speaker 00: That doesn't sound like a great loss in discretion to me. [00:14:01] Speaker 04: Well, Your Honor, to address your first point, [00:14:05] Speaker 04: One of the issues that is raised and petitioners are given and is found by the arbitrator below is that this change create safety issues, reasonable safety issues that were foreseeable because of increased traffic in the secondary area. [00:14:21] Speaker 04: And safety is a working condition. [00:14:25] Speaker 04: And so a memorandum, which negatively impacts the safety of those employees because of an agency change and how inspections are handled and processed, [00:14:36] Speaker 00: And they're given the discretion, you may modify this direction when safety to the public and or our agents may be an issue. [00:14:44] Speaker 04: And at the arbitration it became clear that from the agents there was lack of clarity from their supervisors about what actual authority they had to modify anything. [00:14:56] Speaker 04: It's also clear from the arbitrators decision that [00:15:02] Speaker 04: the supervisors never fully staff the secondary area. [00:15:05] Speaker 04: And that's a point that the arbitrator makes, is that the agency never staff the secondary area. [00:15:09] Speaker 01: Well, in your point of the arbitrator's decision, I mean, I guess what we're reviewing is the authority's decision. [00:15:14] Speaker 01: And so one question is whether the rationale that could sustain the result is actually manifested in the authority's decision. [00:15:24] Speaker 01: And I take it one point you could make is [00:15:27] Speaker 01: But there's not. [00:15:28] Speaker 01: That rationale doesn't find itself in the authority decision, even if it's available, based on what Judge Henderson has pointed out. [00:15:35] Speaker 04: I see I'm over my time so much. [00:15:37] Speaker 04: We'll give you some time. [00:15:38] Speaker 04: Thank you. [00:15:39] Speaker 00: Mr. Peters? [00:15:45] Speaker 00: Can I ask you right off why you didn't argue that what I see is actually not a loss of discretion, or at least make that argument? [00:15:55] Speaker 02: May it please the court? [00:15:57] Speaker 02: Noah Peters for the Federal Labor Relations Authority. [00:16:00] Speaker 02: To start out with that, I think that that understanding is implicit in the authority's determination that there was no change in actual primary lane agent duties or secondary lane agent duties. [00:16:11] Speaker 02: That is, their responsibilities as before dealt with conducting immigration inspections, conducting facial comparison tests, and directing traffic. [00:16:20] Speaker 02: And they still have, and as we did argue, there was, in our brief, there was still substantial discretion built into the memo where, and there's also in the testimony in the record, is, you know, there's substantial discretion for the agents to modify and to deviate from this policy. [00:16:38] Speaker 02: For example, during holidays when there's a lot of traffic, when the secondary lane becomes too backed up. [00:16:44] Speaker 02: That's apparent, I think, in the authority's finding [00:16:47] Speaker 02: that there was no change here to what the Florida Patrol agents were actually doing on a day-to-day basis. [00:16:53] Speaker 02: What was happening was you have two sites where work is performed basically. [00:16:57] Speaker 02: You have a primary lane, you have a secondary lane. [00:17:00] Speaker 02: And so there are circumstances, this changed in perhaps some cases, the circumstances [00:17:06] Speaker 02: where you would be sending a vehicle to the secondary lane. [00:17:09] Speaker 02: But the fact is the same things were occurring in the primary lane as in the secondary lane. [00:17:13] Speaker 02: So the agents were conducting facial comparison tests in the primary lane. [00:17:18] Speaker 02: The reason for the policy as the testimony demonstrated was just so agents would have more time to conduct the same facial comparison test that they were already conducting in the primary lane. [00:17:29] Speaker 02: Now, as far as directing traffic, that was something that the agents had always done. [00:17:34] Speaker 02: They always have to make judgment calls about, well, is there too much traffic in the secondary lane now? [00:17:39] Speaker 02: Is this posing a safety hazard? [00:17:41] Speaker 01: And I think those types of... So, from the perspective of the language of the statute, which is ultimately what we have to deal with in some measure, [00:17:49] Speaker 01: I'm having a hard time understanding what the authority's rationale was. [00:17:53] Speaker 01: There's a bunch of points in the authority's decision, but I honestly, I'm not sure I understand how it marries with the language of the statute because there's several rationales by which one could get home. [00:18:03] Speaker 01: in the direction that the authority went. [00:18:06] Speaker 01: But it's just not clear which route they're taking. [00:18:09] Speaker 01: Are they saying that there's not an effect on working conditions to begin with? [00:18:14] Speaker 01: Are they saying that there's an effect on working conditions, but it's not one that's born of a personnel policy practice or matter? [00:18:22] Speaker 01: Are they saying that even though there's a change in working conditions that's born of a personnel policy practice or matter, it's still not [00:18:30] Speaker 01: affect on conditions of employment? [00:18:33] Speaker 01: I'm not understanding which route the agency's taking. [00:18:36] Speaker 02: Well, I think, so there's, I think as you correctly pointed out before, right, there's an interpretive dimension of this decision where the authority's clarifying the meaning of the statutory phrase conditions of employment, and it's saying that, previous authorities had said that the meaning is so broad of conditions of employment that it substantially means the same thing as working conditions, right? [00:18:57] Speaker 02: So whenever there's a change in working conditions, [00:19:00] Speaker 02: there is necessarily changing conditions of employment. [00:19:03] Speaker 02: I think the authority is saying, as a matter of interpretation, we're going to clarify for the benefit going forward that that is just not the case, that there's other words in the statute, that conditions of employment means personnel policies, practices, it matters affecting working conditions. [00:19:18] Speaker 02: So we're not going to give it this wholly circular definition where conditions of employment just means working conditions. [00:19:23] Speaker 02: And, you know, as Judge Randolph properly pointed out, working conditions is not a fine term in the statute, so that ends up being a very kind of loose standard. [00:19:33] Speaker 02: And I don't think that the authority had consistently followed [00:19:36] Speaker 02: that in previous cases, right? [00:19:38] Speaker 02: It had said that there were some changes. [00:19:41] Speaker 01: But what does that have to do with this case? [00:19:43] Speaker 01: Because if, I mean, I think one can understand the argument that under the statute, if you have a change in working conditions, it doesn't necessarily mean an effect on conditions of employment because it has to be a change in working conditions that comes from a personal policy practice or matter. [00:19:59] Speaker 01: But for that to have any resonance with this case, it has to mean that, well, this case doesn't involve a personnel policy practice or matter, or else I don't understand why we're even talking about the first part of it. [00:20:11] Speaker 01: But then when you look at the second part of the decision, there's nothing in there that tells you that really what's going on here is we're not talking about a personnel policy practice or matter. [00:20:19] Speaker 01: And therefore, even though there's a change in working conditions, it still doesn't translate. [00:20:23] Speaker 01: into an effect on conditions of employment. [00:20:26] Speaker 01: It's not that language, the effect, the effort to marry it to the language of the statute just isn't apparent to me. [00:20:35] Speaker 01: And then what's said doesn't necessarily marry to that kind of logic either. [00:20:40] Speaker 02: Well, I think, again, what the authority is doing is it's making an interpretive point, and it's applying the language of the statute. [00:20:47] Speaker 02: And this is conceivably ambiguous statutory provision to the complexities of the facts of the case. [00:20:53] Speaker 03: That's not what the decision says, that it's ambiguous. [00:20:58] Speaker 02: Right. [00:20:58] Speaker 03: Since this is plain language. [00:21:00] Speaker 02: Right. [00:21:00] Speaker 03: So what is the plain language meaning of condition of employment? [00:21:05] Speaker 02: I think what the authority is saying is it's giving effect to all the words within the definition. [00:21:10] Speaker 02: So it's saying it's a personnel policy practice or matter that affects working conditions. [00:21:14] Speaker 02: So it's saying that basically in this case, there is no change to what is involved in this case is not a change to a personnel policy practice or matter. [00:21:23] Speaker 03: Let me give you a hypothetical. [00:21:25] Speaker 03: Let's suppose that rather than the situation here, we have an assembly line with a conveyor belt. [00:21:33] Speaker 03: employees on either side of the line making widgets. [00:21:37] Speaker 03: And one of the jobs is to put a spring on the widget. [00:21:41] Speaker 03: And the quota is 60 widgets an hour. [00:21:46] Speaker 03: With me so far? [00:21:47] Speaker 03: A time and motion guy comes by and says to the line foreman, hey, that's too slow. [00:21:54] Speaker 03: Double it. [00:21:55] Speaker 03: So they double it to 120 widgets an hour. [00:21:59] Speaker 03: Is that a change in working conditions? [00:22:02] Speaker 02: I think that it's got to be. [00:22:05] Speaker 02: It would be something that would affect working conditions certainly, yeah. [00:22:08] Speaker 03: Yeah, right. [00:22:09] Speaker 03: So all this language and this opinion says, well, the duties weren't changed because they're still doing the same thing. [00:22:17] Speaker 03: The employee on the conveyor belt that we just talked about is still doing the same thing. [00:22:22] Speaker 03: She's putting a spring on a widget. [00:22:24] Speaker 03: But she has to do twice as much work. [00:22:27] Speaker 03: And isn't that something that unions constantly bargain over? [00:22:31] Speaker 02: Right, I think that an increase in workload, the authority's decisions have been clear. [00:22:38] Speaker 02: Standing alone does not trigger a change in conditions of employment. [00:22:42] Speaker 02: Why not? [00:22:43] Speaker 02: Because it doesn't change the nature of types of duties that they're performing. [00:22:47] Speaker 02: Now, in this case, I think that there's the... But I don't understand that because... [00:22:54] Speaker 01: If it does change working conditions, which you just agreed, I think, and you have to, that it does because the hypothetical, obviously there's a change in working conditions, then the only way under the statute it doesn't translate to conditions of employment is if it doesn't have anything to do with the personnel policy practice or matter. [00:23:11] Speaker 01: It's not about nature of duties. [00:23:14] Speaker 01: We already know that there's an effect on working conditions, so the only way you keep it from going to conditions of employment is if you say, well, it may have affected working conditions, but it didn't come from a personnel policy practice or matter. [00:23:30] Speaker 01: Isn't that the only route left? [00:23:32] Speaker 02: So I think the way that you get there is in this case, the record showed very clearly that the agency had an established practice of modifying the inspection procedures in response to mission and workload fluctuations. [00:23:45] Speaker 02: So you have undisputed evidence that there were constantly being made changes to the way that inspections were conducted and prioritized over a period of decades. [00:23:54] Speaker 02: And there was no bargaining obligations. [00:23:56] Speaker 02: The practice had been that that didn't trigger bargaining obligations. [00:24:00] Speaker 02: because they had an established practice of making those adjustments to inspection procedures that made changes but did not change the actual conditions of employment. [00:24:13] Speaker 02: And I think this is an area where [00:24:16] Speaker 02: So, and I think this is also the CBP Tucson case, which is, I think, on all fours, which the authority had decided where there was a change, right? [00:24:24] Speaker 02: They started moving about, they had a practice before that where aliens were apprehended was where they were processed, and then the agency made a change. [00:24:33] Speaker 02: where they start sending about half of those aliens to another station and there's similar concerns. [00:24:38] Speaker 01: I have to say I don't follow it. [00:24:42] Speaker 01: Maybe I'm just being dense. [00:24:44] Speaker 01: For example, you have a sentence on page 27 of your brief that is characterizing these precedents, CBP, Tucson, and Elgin. [00:24:54] Speaker 01: And it says, both CBP Tucson and Eglin AFB involved changes to agency policies that changed the working conditions of employment but did not change their conditions of employment. [00:25:05] Speaker 01: I don't understand how that's even possible because under the statute, if it's an agency policy, and let's just say it's an agency personnel policy because I don't hear any dispute about that. [00:25:14] Speaker 01: that changes working conditions and under the statute, that's a condition of employment. [00:25:19] Speaker 01: It just follows like the night follows the day. [00:25:21] Speaker 02: Yeah, first off, I don't think we don't concede that it is a change in a personnel policy or practice because I think you have to look at the fact, too, that this is directed ultimately at supervisors. [00:25:31] Speaker 02: This is a memo that's not directed at the actual unit employees. [00:25:34] Speaker 02: This is a memo [00:25:35] Speaker 02: to supervisors saying, hey, instruct the employees to do this going forward. [00:25:39] Speaker 01: Okay, I don't see that rationale in the authority's decision. [00:25:42] Speaker 01: Are you saying that the authority relied on that rationale? [00:25:44] Speaker 01: That rationale at least makes textual sense to me at the statute. [00:25:48] Speaker 01: At least it's an effort to say. [00:25:50] Speaker 02: Yes, I think that the authority said that because it said that this is basically a change in how supervisors are directed to prioritize and conduct inspections. [00:25:58] Speaker 02: This is a supervisory direction, in other words, [00:26:01] Speaker 02: that is meant to kind of adjust inspection procedures. [00:26:07] Speaker 02: That is part of the authority's decision. [00:26:09] Speaker 02: I think that that's clear is that this is not something that's directed to actual unit employees. [00:26:14] Speaker 02: It's saying this is actually directed at managers to how the actual unit employees prioritize inspection procedures. [00:26:21] Speaker 00: But wouldn't that have been a better answer to Judge Randolph's hypothetical? [00:26:27] Speaker 00: OK, you now have to do 10 times as many widgets. [00:26:30] Speaker 00: But that comes under assignment of work. [00:26:33] Speaker 00: And that is specifically cut out from conditions of employment, working conditions. [00:26:39] Speaker 00: That section says nothing affects or that doesn't affect the reserved manager's right to assign work. [00:26:46] Speaker 02: Yes, and I think also you have to look at the fact, too, that this is ultimately, whether the conditions of employment have been changed, it is now and has ever been a case-by-case determination. [00:26:58] Speaker 02: So you just look at, is there substantial evidence in the record that supports the authority's determination? [00:27:05] Speaker 02: And did the authority present a reasonable interpretation of the statutory term? [00:27:11] Speaker 02: And so I think as far as [00:27:13] Speaker 02: getting into this fine-grained case-by-case determinations of how the authority is going to apply this in the future, that's for the authority to determine. [00:27:21] Speaker 02: And I don't think that the authority is making an interpretive point, and it's saying that conditions of employment has to mean something a little bit different than working conditions, because working conditions is part of a work definition. [00:27:31] Speaker 03: I just want to follow up on Judge Henderson's question. [00:27:33] Speaker 03: Is it your position that this statute exempts from bargaining the assignment of work? [00:27:41] Speaker 03: I think it's the classification of a position that's exempted, not the assignment of work. [00:27:48] Speaker 02: In both cases, there has to be a change, the key issue in all the cases is whether there's a change in conditions of employment. [00:27:56] Speaker 02: Because if there's no change in conditions of employment, there's no bargaining obligations at all. [00:28:01] Speaker 03: And so I think that... I can understand your position if, in fact, for example, a caravan of 10,000 people show up at the El Paso border and suddenly the inspectors are overwhelmed. [00:28:17] Speaker 03: It's silly to say, well, they're entitled to bargain because their workload has increased. [00:28:22] Speaker 03: The point is that if their workload is increasing as a result of some policy or practice or matter that the agency puts on them, that's a different matter, a different question. [00:28:35] Speaker 02: Right. [00:28:35] Speaker 02: I think here the, so you look at what is the relevant change that has occurred? [00:28:39] Speaker 02: Is it a change in the kind of external circumstances? [00:28:43] Speaker 02: Or is it something that's wholly agency generated? [00:28:47] Speaker 02: And here, I think, with the CBP, with the Border Patrol, there's always going to be, you know, this is a fast-changing environment. [00:28:54] Speaker 02: So here, there was specific intelligence that people were using imposter documents to try to get through the Border Patrol checkpoints. [00:29:01] Speaker 02: So they made, and there was an established practice by the agency of making changes in inspection procedures in response to external events. [00:29:10] Speaker 02: So the authority held [00:29:11] Speaker 02: in light of the substantial evidence in the record that this was not an actual change. [00:29:15] Speaker 03: That's a good argument. [00:29:16] Speaker 03: Unfortunately, I don't see that in the authority's opinion. [00:29:19] Speaker 02: Well, I think the authority was getting there. [00:29:21] Speaker 02: I think the authority said it was careful to note that there had been an established practice at the agency level of making these changes to inspection procedures. [00:29:34] Speaker 02: And I think it does have the point that there was an element, there was always an element here of this is a matter of directing the supervisors on how the employees are to conduct. [00:29:45] Speaker 03: You know, you keep coming back to that and I keep asking myself, the statute doesn't require a change in working conditions. [00:29:52] Speaker 03: It just requires a practice that affects working conditions. [00:29:56] Speaker 03: So you can have a situation where things are going on quite wonderfully for a decade according to a particular memo and so on and so forth. [00:30:05] Speaker 03: That does not exempt it. [00:30:07] Speaker 03: from bargaining, it's not a change. [00:30:11] Speaker 03: Maybe I'm misreading the statute. [00:30:13] Speaker 03: It doesn't use the word change. [00:30:14] Speaker 02: Right. [00:30:14] Speaker 02: The authority, I think, has pretty consistently said that there has to be a threshold change, that what you bargain over ultimately is the change in the conditions of employment. [00:30:23] Speaker 02: And so you have to look at what is the relevant level of bargaining here that has to take place, right? [00:30:30] Speaker 02: So anything that happens [00:30:32] Speaker 02: work day-to-day or month-to-month or year-to-year workload fluctuations or mission fluctuations can change the employee's working conditions in many ways. [00:30:40] Speaker 02: So consider, for example, an employee has to work three Saturdays in a row over time pursuant to a shift assignment procedure that has already been bargained over. [00:30:50] Speaker 02: Well, in that case, there has been a change to the employee's working conditions. [00:30:53] Speaker 02: They had never had to work two consecutive Saturdays in three years. [00:30:56] Speaker 02: But now, you know, they are. [00:30:58] Speaker 02: So does that trigger bargaining obligations? [00:31:00] Speaker 02: If the shift assignment procedure pursuant to which those shifts are assigned has already been bargained over. [00:31:06] Speaker 02: And I think the authority has said, no, in that case, we're not going to require bargaining every time that something, there's arguably some sort of change that affects working conditions. [00:31:16] Speaker 01: So the authority said that. [00:31:19] Speaker 01: to some extent in prior cases, right? [00:31:22] Speaker 01: Yes. [00:31:23] Speaker 01: One thing that still confuses me about this decision is the authority expends a good deal of energy in the first part announcing a change in the way it's interpreting things and then in the last part it's relying on precedence, which by definition can't have incorporated that change because [00:31:40] Speaker 01: ostensibly the purpose of this opinion is to announce a new regime. [00:31:45] Speaker 01: So I don't understand what the first part is even doing if the second part is grounded in precedent. [00:31:54] Speaker 02: background is that the authority had that dicta where they say, in some cases, we've given conditions of employment such a broad meaning that it essentially means the same thing as working conditions. [00:32:05] Speaker 02: I think if you look at the authority's decision, especially the concurring opinions from Chairman Cavanaugh that that was referred to, she's making the point. [00:32:13] Speaker 02: The authority's actually making a distinction here between conditions of employment and working conditions. [00:32:17] Speaker 02: In those previous cases, like Eglin Air Force Base, she writes a concurring opinion and says, hey, [00:32:22] Speaker 02: let's pay attention to the fact that we're not actually giving conditions of employment and working conditions the same meaning. [00:32:28] Speaker 02: So what the authority is saying is going forward, we just want to be clear, we are distinguishing between, we are not holding that everything that affects working conditions changes the conditions of employment. [00:32:37] Speaker 02: We're going to try to give meaning to all of the terms in the statute. [00:32:41] Speaker 02: And so I think that it's not that the authority is trying to announce a major change in the case law. [00:32:46] Speaker 02: I think the authority is more clarifying the results of previous cases and saying, [00:32:50] Speaker 02: We're going to try to be clear going forward here that there is a difference, that we are going to try to give effect to all the words in the statutory definition. [00:32:59] Speaker 02: And if there's no further questions, I'll submit. [00:33:01] Speaker 02: Thank you. [00:33:02] Speaker 02: Does Mr. Milledge have any time left? [00:33:03] Speaker 00: Mr. Milledge does not have any time left. [00:33:07] Speaker 00: All right. [00:33:07] Speaker 00: Why don't you take two minutes? [00:33:09] Speaker 00: Thank you, Your Honor. [00:33:12] Speaker 04: I have a couple of brief points I'd like to address. [00:33:14] Speaker 04: I think the first thing is to point out the main distinction in this case versus the [00:33:22] Speaker 04: multiple cases that were signed in the authority's decision and in the authority's brief, specifically NTUV, IRS, Department of Veterans Affairs Medical Center, Sheridan, the AFGE, and CBB, Tucson, and AFGE, and then finally AFB, Air Force Base, Eglin, is that [00:33:48] Speaker 04: In each of those cases, the authority found that the agency did not take an action that changed working conditions. [00:33:57] Speaker 04: In each of those cases, in NTU, in Sheridan, there were external forces that caused the change in working conditions. [00:34:07] Speaker 04: There was no agency-initiated change that affected working conditions. [00:34:11] Speaker 04: And in those cases, they found no change in the conditions of employment. [00:34:16] Speaker 04: Because as the authority said in NTU, [00:34:19] Speaker 04: The threshold determination is, is there an agency-initiated change to a personnel, policy, practice, and matter? [00:34:25] Speaker 04: So the authority's claim that they're trying to clarify what their precedent is makes no sense because that has always been what the authority's precedent is. [00:34:32] Speaker 04: The authority has always required the agency to take an action, first, to determine whether there's been a change in conditions of employment. [00:34:41] Speaker 03: The authority's argument concerning... One of the things is that if the agency fails to take action, can that be something that the union can bargain with? [00:34:53] Speaker 03: Back to my hypothetical that instead of the caravan, there now are tens of thousands of people arriving at the border every day, and these agents or inspectors are overworked. [00:35:07] Speaker 03: Is the union entitled to bargain on the basis that the agency, by failing to hire more people, is increasing our workload to an extent that's intolerable? [00:35:18] Speaker 04: Under the authority's precedent, no. [00:35:21] Speaker 04: And that was the issue in NTU and IRS where there was increased demand from the public for taxpayer assistance. [00:35:27] Speaker 04: The union filed, you know, challenged it and sought to bargain over it. [00:35:34] Speaker 04: The authority said no. [00:35:35] Speaker 04: DC Circuit upheld that decision because the agency did not take an affirmative action to change the personnel policy or practice that caused the increase in workload. [00:35:45] Speaker 04: I see them over my time, if I may have just briefly to go over two more points. [00:35:50] Speaker 00: All right. [00:35:51] Speaker 04: Real quickly. [00:35:52] Speaker 04: The authority's argument that the agency has modified the practice at the checkpoints and that there's never been any bargaining before is irrelevant to the case before us. [00:36:04] Speaker 04: The question here is whether the agency's action created an obligation to bargain. [00:36:09] Speaker 04: Did the agency change a personal policy practice or a matter affecting working conditions? [00:36:16] Speaker 04: And finally, with respect to the assignment of work, Your Honor, assignment of work is a management right that is not subject to substantive bargaining. [00:36:24] Speaker 04: However, it is subject to impact and implementation bargaining and appropriate arrangements under 71-06-B2 and 71-06-B3. [00:36:34] Speaker 04: There's no further questions. [00:36:36] Speaker 04: Thank you, Your Honors.