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case number 20-1396 et al.

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American Federation of Government Employees AFL-CIO Petitioner versus Federal Labor Relations Authority.

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Mr. Milledge for the petitioners, Mr. Peters for the respondents.

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Good morning.

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Good morning, Your Honors.

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May it please the court, my name is Matthew Milledge and I represent the petitioners in this case.

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In Department of Education, the authority jettisoned the standard, the de minimis exception, it has applied for over 35 years to determine an agency's obligation to bargain over changes to the conditions of employment.

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The substantial impact standard it adopted as a replacement is contrary to the text, structure, and purpose of the statute.

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Even if it weren't contrary to the statute, which it is,

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the authority's interpretation of the statute in this case is unreasonable.

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And the authority's arguments in support of its decision in Department of Education do not make any sense.

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The substantial impact standard fundamentally and impermissibly rewrites the statutory definitions of collective bargaining

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and conditions of employment, which require respectively bargaining over matters affecting conditions of employment and working conditions.

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Council, can I just be clear about your basis for reversal?

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So you say contrary to the statute, you also say unreasonable.

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Are you also claiming arbitrary capriciousness that is independent of any

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statutory analysis.

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That is correct, Your Honor.

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We are also arguing that the decision is not supported by sufficient reasons and the reasons provided by the court don't make any sense and are arbitrary and capricious.

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Thank you.

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I had a question about the

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The parallel law and obviously the my primary question is going to be for Mr Peters, but one of the rationales behind the authorities decision here is that the Labor Board under its law has used the the

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higher threshold that the authority has adopted here.

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And nobody really talks about the text of

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the National Labor Relations Act and where that higher threshold comes from and whether there's any parallel language here in the statute governing the authorities cases.

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And can you speak to that?

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What is the, I mean, I know the peerless food board decision is cited as the basis for the requirement that there be a material substantial and significant change in working conditions.

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before the bargaining obligation attaches, but I'm not sure I understand how that relates to or where that comes from in the text of the National Labor Relations Act.

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And again, maybe this is not a question for you, but if you had any ability to cast light on that, I'd be interested.

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So, to my knowledge, your honor, there's no statutory language that supports the standard that the NLRB uses.

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However, in this case, what's important to understand is that when evaluating

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parallels or similarities between the statute in this case and the National Labor Relations Act.

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It's important to consider not only the text, but the text, the structure, the purpose, and the legislative history of those acts.

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I understand that.

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And I appreciate your arguments about the differences and the differences in the policy and the structure and the narrowness of bargaining under the statute.

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But I really was wondering, is there, for example, if we were to rely on text in this case and say the text disallows what the authority did here, is that

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likely to have an impact on labor board cases?

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As far as I know, we've never blessed the labor board requirement of a material substantial and significant effect.

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Well, Your Honor, I can't answer the question of whether this court has blessed or sanctioned the NLRB's interpretation of their statute.

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What I can say is that in this case, or in a case interpreting the NLRA, the court would not be limited to just the text.

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They'd have to look at the text and the structure, as I said before.

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And for example, here under the statute,

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The scope of bargaining is limited by the statute by explicit statutory exceptions that do not exist under the NLRA.

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And so for federal employees bargaining under the statute, they cannot bargain about matters covered by federal law.

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They cannot bargain about the classification of positions.

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They have limited bargaining rights when it comes to the exercise by agencies of management rights.

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And so all of that has to be considered when determining what standard is appropriate under a particular act.

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And so- Does that limit limitation or the narrow scope of bargaining rights?

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Does that help you or hurt you?

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It helps us, Your Honor, because Congress was quite clear that, and as this court explained in Library of Congress,

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The scope of bargaining should be broadly construed based on congressional intent, except for the explicit statutory exceptions.

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Other than those exceptions, the duty to bargain should be broad, as this court said in Library of Congress.

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And as the legislative history shows, all conditions of employment are subject to bargaining.

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But didn't we also hold an ALJ

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that it's not just exactly what is written into the statute.

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There's been a recognized exception, the de minimis exception.

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So haven't you overstated the extent to which we rely on purely what is there in the statute?

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Respectfully, Your Honor, I don't agree with that interpretation of the case.

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What I would say is that the de minimis exception is entirely consistent with the statutory text.

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And in fact, there's just another way of stating the statutory text.

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It's not at all interpretive.

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So what AALJ said was that the text requires there to be an appreciable effect

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on conditions of employment or working conditions, and petitioners would suggest that that's just a simply another way of looking at the de minimis exception under the de minimis exception.

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matters must have an effect on conditions of employment or working conditions in order to be subject to the duty to bargain.

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Same with the appreciable effect test that was applied in AALJ and AFGEV FLRA, the other case we rely on.

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But getting back to Judge Pillard's question about the NLRA, is there language in that statute

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that is sufficiently similar to this one, that if we say we can't have the higher test in this context, we might be impinging upon 50 years of an LRA precedent or whatever.

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Well, Your Honor, I would say that whatever the decision in this case, a decision in this case could be used in any future litigation involving the NLRB.

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Could this decision have an impact?

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Of course, cases can always have an impact.

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However, the structure of the NLRB is different.

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And one substantial difference between the statute and the NLRB is federal employees cannot engage in economic action

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in support of their collective bargaining rights.

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Private employees can.

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They can engage in economic action

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to secure contracts, to secure collective bargaining agreements.

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Federal employees cannot.

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But that again, as with Judge Jackson's response to your last question about the narrowness of bargaining rights, it's not clear whether that helps or hurts.

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I mean, Congress has been more willing to restrict bargaining rights in the federal sector than the private sector in certain ways.

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with an understanding that in certain ways, governmental employers differ.

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And I hear you partly arguing, well, then what's left should be given wide berth.

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And maybe that's an oversimplification that doesn't do your argument justice.

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But there should be breathing room for what's left.

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And it's just not entirely clear to me that that follows.

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So I see that my time is up.

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I would like to answer this question.

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Well, then, yeah, answer that question, and I want to take you in a different direction.

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Yes, Your Honor.

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So the Congress struck a different balance under the statute and under the NLRA.

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And it's important that this court honor the balance that was struck.

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Yes, Congress has placed additional restrictions on bargaining for federal employees.

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Therefore, it is important and in fact critical to honor the rights they gave to federal employees by stating that employees are entitled to bargain over all matters affecting conditions of employment or all matters affecting working conditions.

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Because of the restrictions that were put in place, it's even more important to honor the words in the statute.

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Mr. Miller, you answered Judge Jackson's very first question by saying that you were also raising an arbitrary and capricious challenge.

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And am I right that if you're correct about that challenge, we don't have to wrestle with any of these statutory questions?

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Is that your position?

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Yes, Your Honor.

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Well, do you want to take in your last minute, do you want to say something to us about your APA claim?

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Maybe the claim has been misunderstood, but the, so APA and Chevron merge, but- I didn't mean APA.

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I meant your claim.

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I thought what you said to Judge Jackson, and this is the way I read your brief, is that you make two arguments here.

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One, that this violates the statute, but independently, without regard to whether it does or not, it's arbitrary and capricious, correct?

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That is correct, Your Honor.

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And can we consider the arbitrary and capricious issue by itself?

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Will that resolve the case?

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Suppose you're right.

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Yes, your honor.

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If the court were to find that the authority's decision was not well supported, was not supported by reasonable and coherent reasons, that would be sufficient grounds to overturn and remand.

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So I yield my time for rebuttal, or I'd like to reserve the rest of my time for rebuttal.

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Sorry, with me, my colleagues have no further questions.

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Okay.

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Thank you, Your Honors.

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We'll hear from the authority.

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Mr. Peters, I think we're ready to hear from you.

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Looks as though he's frozen.

[00:13:20] Speaker 04:
It does look that way.

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Can you reach him in?

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Is there a way to talk to him?

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I am calling him right now, Judge.

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OK, thanks.

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You're welcome, Judge.

[00:13:38] Speaker 05:
I thought it was me who was having internet problems today.

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For once, no.

[00:13:45] Speaker 01:
Hi, sorry about that.

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May it please the court Noah Peters for the Federal Labor Relations Authority.

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So I want to talk, pick up a little bit on the step to argument that we left up with that we left off on.

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Um, so there were basically four bases in their brief for saying that this policy statement had failed.

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Step two, so it said, they said number one, that we had never that the authorities observation that it never given a reason explanation.

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for rejecting substantial impact was wrong.

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In fact, it had.

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I submit to you that we have the better of that argument.

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I think that the cases from the 1980s, the two cases where the authority switched or kind of transitioned into the more than de minimis argued standard,

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didn't give any sort of clear explanation for why.

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Right.

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I'm referring to the decisions from the 1980s, the first point of contention that they bring up under their step two argument, which is that the authority in the 1980s had in fact provided a reasoned explanation for adopting de minimis as the standard, more than de minimis as the standard.

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Yeah.

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Mr. Peters, let me ask you this question about that point.

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Sure.

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Let's assume you're right that the reason given 20, 35 years ago wasn't adequate.

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This is just an assumption.

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I'm not sure what difference that makes here because the agency still needs to give a reasoned decision for adopting the rule that it adopted.

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So don't we still have to look at the other three reasons?

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They said it's inconsistent with the purposes of the statute, it's more lenient than the test applied by the board, and it's created unpredictability.

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So the question is, are those three reasons, those three rationales reasonable?

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Do they make sense?

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We still have to decide that, right?

[00:16:12] Speaker 01:
Yeah, and I think that- Okay, right.

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Yeah, no, I'm just addressing their argument, but I think that the authority's decision is well-reasoned and is reasonable.

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And I think the authority, when it recites the backdrop of first off the precedent under the executive order as having been substantial impact,

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I think that that is entitled to considerable weight and also the fact that it noted that the NLRB has also adopted this test.

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What it's saying is that basically there's 50 years plus of the NLRB using substantial impact.

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There's a decade under of the authority using substantial impact.

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executive of the authority and then under the executive order, also using substantial impact.

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And then there's a switch in the mid 1980s.

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This is what the authority recounts.

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And since then, the authority reviewing its own case law, which I think the authority is entitled to a great degree of deference when it reviews, when an agency reviews its own case law.

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Did you, did the authority make that point?

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I saw in your brief you made that point, that it's 50 years of board authority to rule on, but did the authorities say that?

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I think the authority certainly cited board precedent and said that, you know, But did it make this point?

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I know it's cited board precedent, but did it make this point that you've got 50 years of board precedent to rely on?

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I mean, maybe I missed it, but I don't remember reading it in the decision.

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Right.

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Well, I think that the

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when it contrasts its own precedent in 14, it reviews its own precedent.

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And it says, our precedent is inconsistent.

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That's not the same thing as saying it's 50 years or more.

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Right.

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But I think that there is, it does note that the input note 30, it notes that the authority frequently looks to board precedent on a variety of issues.

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and that's in footnote 30 of its decision.

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And so I think that there is the reason given, or one of the reasons is that we should look to board precedent, just in general and in this area, there's no reason not to.

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And I think that when- Can I take you down a slightly different track?

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So it appears that the authority is, I think one of the reasons that they put forward

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is the problems with the administrability of the de minimis exception.

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If they say things like it's unpredictable, it's been problematic, that's why we're looking at this.

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But it appears to assume that the substantial impact standard is going to be more administrable, that it's gonna be more predictable.

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And I don't really see any evidence of that in anything that they've cited.

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So can you help me to understand?

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And I would say, conceptually, it seems that both of those standards might be subject to the same kinds of predictability problems.

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So what is it about substantial impact that the authority thinks will make it easier to administer than de minimis?

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Well, I think that the biggest thing is that I think what the authority noted was that it's incongruous for the test to be framed in terms of the duty to bargain over things that are barely more than trivial.

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The more than de minimis test emphasizes that we need to go right up to the line of triviality in our test.

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Isn't that easier to admit?

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That seems to me to be much easier to administer than

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just as a matter of common sense and maybe I'm you know off base here but they're then picking a test that takes us further down the road so fine it's not just right over the line it's something that has a substantial impact that seems to me to conjure up all sorts of questions what is a substantial impact as opposed to something else right is is just one of them so I'm

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curious as to, because I didn't really see it in the opinion, as to why the authority thinks that the test that it is adopting is better.

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And I think that's the kind of thing that they need to say and have some evidence of in order to make this kind of shift.

[00:20:58] Speaker 01:
Well, I think that whether the substantial impact would yield a meaningful and determinative standard would yield more predictable and consistent results is in kind of the heartland of predictive judgments that an agency will make, right?

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They make them based on something.

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And so what I guess I'm trying to understand is what evidence do they have

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that supports this prediction?

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Well, I think a big factor is the NLRB precedent, which is cited extensively.

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And as the authority notes, we look to the NLRB's precedent on a variety of issues.

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And I think that's a very important data point.

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I think the emphasis that this was the standard that was applied initially under the authority.

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Let me also point out one thing that I think sort of led me down this track, which is that the agency or the authority cites particular examples and they seem to undercut

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this notion that something is going to be more predictable because, you know, they go both ways.

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So I'm trying to understand.

[00:22:12] Speaker 01:
Right, and I think what you brought up is a big data point too.

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The authority reviewed its own case law and it found that it's the more than de minimis test had yielded inconsistent results.

[00:22:27] Speaker 01:
So looking to, I think all of that logic to a reasonable time would say, well, maybe we should adopt the NLRB's precedent.

[00:22:38] Speaker 01:
Maybe it's not a slam dunk kind of demonstration

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But of course, we're operating here in the area of prediction about future events, about how the results that will be reached in future cases by ALJs and arbitrators and the authority applying this standard.

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But I think the authority definitely gave reasons for why it felt that this was a better test.

[00:23:04] Speaker 01:
I think that they are ones that a reasonable person would find

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They thought it was a better test.

[00:23:11] Speaker 03:
Can you just summarize quickly?

[00:23:12] Speaker 03:
They thought it was a better test, better than de minimis.

[00:23:17] Speaker 03:
I see the reasons why they don't like de minimis, but what I don't know is why this one is any better.

[00:23:23] Speaker 03:
So can you hold me to that?

[00:23:25] Speaker 01:
Yes, I think that there's first off a situated with it, which is this is the test that we initially applied for the first 10 years of our existence.

[00:23:33] Speaker 01:
This is the test the NLRB applies, and we look to the NLRB precedent on a wide variety of issues.

[00:23:40] Speaker 01:
And, and then they look to the test itself to the formulation and they say that it's incongruous.

[00:23:46] Speaker 01:
for the test to emphasize that we need to go right up to the line of triviality, that, you know, as they say, bargaining over matters that are just barely more than trivial leads the minds of ALJs and arbitrators in the wrong direction, because the test shouldn't be emphasizing the need to bargain over things.

[00:24:11] Speaker 03:
Right, but that's sort of slipping back into why de minimis is wrong.

[00:24:15] Speaker 01:
And so the change should be material significant to draw it should be something that's of interest to that's meaningful to employees on the authority emphasizes several times that we need to emphasize meaningful bilateral negotiations.

[00:24:34] Speaker 01:
that are actually worth the time of agencies and unions as they note that the opinion of Member McGinnis talking about that decisions are made daily by every level of management and if bargaining were required on each and every decision, government would grind to a halt.

[00:24:53] Speaker 03:
But that has not happened, right?

[00:24:55] Speaker 03:
I mean, the interesting and curious thing about the

[00:24:59] Speaker 03:
Examples that they give in the opinion is that even as they say that de minimis has been a nightmare and everything is being bargained as a result of de minimis, the examples that they give show that that's not so.

[00:25:15] Speaker 03:
There are some examples in which de minimis does not lead to bargaining, right?

[00:25:21] Speaker 03:
I know they offered those in terms of predictability, but they seem to undercut the point

[00:25:28] Speaker 03:
that if we have a de minimis test or if that's what the statute requires, then bargaining will always happen and they'll never be able to function.

[00:25:38] Speaker 01:
But I think, though, that what the authority was emphasizing was the unpredictability and the fact that some decisions had gone to the had had found that very, very minor things were bargainable and the emphasis had been different.

[00:25:53] Speaker 01:
So what the authority is saying is that when the test is so unpredictable,

[00:25:58] Speaker 01:
It's not going to be worthwhile for agencies to try to challenge bargainability when the case law is all over the place.

[00:26:08] Speaker 01:
But I do think that within the decisions that the authority cited, there are very significant differences, even not just in the results, but also the language and the emphases that are used.

[00:26:20] Speaker 01:
In GSA Region 9, the authority seems to be suggesting that office moves are generally not

[00:26:28] Speaker 03:
Can I ask you, I'm sorry, we can read the exam.

[00:26:34] Speaker 03:
What about the differences between the NLRB scenario and this one?

[00:26:41] Speaker 03:
Judge Pillard points out that we have different statutes.

[00:26:44] Speaker 03:
The fact that the NLRB has imported this test into their scheme doesn't necessarily

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that it's appropriate for this scheme.

[00:26:56] Speaker 03:
And in fact, the petitioners point out substantial differences.

[00:26:59] Speaker 03:
So what's the best argument as to why that is a reasoned

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analysis.

[00:27:05] Speaker 01:
Right.

[00:27:06] Speaker 01:
Well, the best argument is that the statute copies almost verbatim the language about the duty to bargain from the NLRA and from the old executive order, both of which had been interpreted as creating a substantial impact test and it very consciously reused the language.

[00:27:23] Speaker 01:
Then it took out of a belt and suspenders approach, which is that even in areas that we're not aware of,

[00:27:28] Speaker 01:
case law and precedent under the old executive order applies unless it's superseded by specific provisions of the statute.

[00:27:39] Speaker 03:
In the FLRA context, don't we have specific provisions that lay out exceptions?

[00:27:46] Speaker 03:
We don't have that in the private bargaining world.

[00:27:51] Speaker 01:
No, I would, I would art, I mean, I think the language, the verb, the basic obligation is similar but the the statute contains several more indications it emphasizes on several occasions that bargaining should be about conditions of employment affecting such employees.

[00:28:07] Speaker 01:
Adversely affecting such employees includes references to effects that are not present in the NLRA.

[00:28:13] Speaker 01:
It also includes a very broad provision that the NLRA does not have, which is that the provisions of this chapter should be interpreted in a manner that are consistent with effective and efficient government.

[00:28:23] Speaker 01:
The NLRA has no similar language to that.

[00:28:25] Speaker 04:
Well, our court has held in Library of Congress that we understand the statute to say that collective bargaining in the public sector is in the public interest, it is consistent with and supportive of effective government contrary to the argument that you make in your brief.

[00:28:42] Speaker 01:
Well, the ALJ decision, recognize the trade off as it said, you know, efficiency and government can hardly be thought to require bargaining over a trivial matters on a trivial matter but that's that's an argument distinctive and I think just Jackson was probing you on that that's an argument distinctive to the day Minimus exception.

[00:29:02] Speaker 04:
which doesn't even need a textual ambiguity or any kind of hook, whereas what you're arguing for, I'm just having a hard time understanding how it squares with the text of the statute.

[00:29:14] Speaker 04:
And so I had the same question for you along those lines that I had for Mr. Milledge, and perhaps it's more appropriate for you.

[00:29:20] Speaker 04:
Do you understand how the board has squared its requirement that a unilateral change be material substantial and significant?

[00:29:32] Speaker 04:
before it raises a duty to bargain, given that the language of both acts of the National Labor Relations Act, like your statute, doesn't refer to any such threshold.

[00:29:49] Speaker 04:
Where does that come from?

[00:29:50] Speaker 04:
And how does that square with the National Labor Relations Act?

[00:29:56] Speaker 01:
It comes from the NLRB's case.

[00:30:00] Speaker 01:
It actually comes from there is a Supreme Court decision that we cite called NLRB versus Katz in 1962, which talks about a substantial departure from past practice.

[00:30:10] Speaker 04:
But more as a descriptive matter, that it was a substantial departure and therefore was a violation, not that a substantial departure is needed and here was an insubstantial one.

[00:30:20] Speaker 04:
So it doesn't really announce it as a standard.

[00:30:23] Speaker 01:
Well, I think ultimately the substantial impact standard comes from the same place as the de minimis standard, which is that the agencies have the discretion to draw the line of trivial matters that are not fit for them to consume time and resources.

[00:30:41] Speaker 01:
And it's basically, but you know, the manner of that line drawing is something that we leave to agencies.

[00:30:48] Speaker 01:
So if agencies want, and this is, there's a,

[00:30:51] Speaker 01:
a case from the DC Circuit that articulates this as well.

[00:30:54] Speaker 03:
Peter, this is what really, really confuses me about your argument, because it feels like you're trying to have it both ways in a certain way.

[00:31:03] Speaker 03:
You suggest that substantial impact comes from the same place as de minimis.

[00:31:09] Speaker 03:
It's really not that different.

[00:31:11] Speaker 03:
Agencies are making these kinds of lines, and they're basically

[00:31:15] Speaker 03:
you know, a tantamount to just exercising the same authority to make sure that things that are only important are subject to bargaining.

[00:31:24] Speaker 03:
But on the one hand, but then on the other hand, you say, no, no, no, substantial impact is really important.

[00:31:32] Speaker 03:
It's doing work that's different than de minimis, which is why we need to make this change.

[00:31:38] Speaker 03:
It's going to be more predictable.

[00:31:40] Speaker 03:
So which is it?

[00:31:40] Speaker 03:
I mean, is it is it basically the same as de minimis?

[00:31:43] Speaker 03:
And so therefore,

[00:31:45] Speaker 03:
We don't have to worry about it transgressing the statute or being outside of the agency's authority in this context, or is it something new and important and different that the agency is importing?

[00:32:00] Speaker 01:
Well, it's not something new.

[00:32:02] Speaker 01:
It's something that has been around in the NLRB context for 50 years.

[00:32:06] Speaker 03:
I understand, but is it different from de minimis or not?

[00:32:11] Speaker 01:
It's a different way of articulating, of trying to suss out, of trying to do the same thing which de minimis had tried to do and failed, which was to distinguish trivial matters from matters that really are within the duty to bargain.

[00:32:28] Speaker 01:
And it comes from pretty much, ultimately, if you're tracing it back to the NLRB, it comes from the same place, which is the duty to the ability of agencies to draw the line about what matters are trivial, what matters are not.

[00:32:43] Speaker 03:
So it's your position that substantial impact does the work of identifying what matters are not trivial.

[00:32:52] Speaker 03:
Yeah, that it's the same, which is what de minimis was supposed to be doing but you didn't do.

[00:33:00] Speaker 01:
Yeah, so the authority looked at its case law and said it had ceased to effectively perform its function of winnowing out matters that are too trivial to bargain.

[00:33:09] Speaker 01:
And also the fact is that this was used before the articulation, before the adoption of the statute, which is something that the authority notes.

[00:33:19] Speaker 01:
It was used by the NORBN under the executive order.

[00:33:22] Speaker 03:
Can I ask you, so do you reject the proposition that there is daylight between de minimis and the substantial impact, that there's some category of cases or situations or changes, management changes,

[00:33:38] Speaker 03:
that will be more than de minimis, but less than substantially impact.

[00:33:43] Speaker 03:
You don't think there's any room for that?

[00:33:47] Speaker 01:
No, I think that we have to see how it, I mean, obviously, it hasn't been applied in specific cases.

[00:33:56] Speaker 04:
Wait a minute, you said there's 50 years of precedent on it was applied under the executive order.

[00:34:01] Speaker 04:
You have to have one position.

[00:34:03] Speaker 01:
So, I mean, I think that it's it's certainly a more meaningful and determinative standard I think I don't know that the as far as specific case outcomes, that would be one way under this test and another way, I think that there are some are also right the authority wouldn't have adopted it.

[00:34:21] Speaker 01:
And I do think that it's clear that there is under the federal sector, I think there's been a broader appetite, a more robust appetite to bargain over things that do seem very trivial as many of the examples cited by the authority in footnote 14, such as rearranging seating within an office.

[00:34:45] Speaker 01:
would seem to suggest.

[00:34:47] Speaker 01:
But so yeah, there is certainly daylight between the two standards.

[00:34:52] Speaker 01:
But I don't know.

[00:34:53] Speaker 01:
But in terms of what they're trying to get at, I think the de minimis test was trying to get at the same thing that the substantial impact test was.

[00:35:01] Speaker 01:
And if you read the decisions from the 1980s, they're citing substantial impact case law and saying we should use this case law because substantial impact is a known

[00:35:11] Speaker 01:
quantity, but they're not explaining why they're moving to a de minimis standard.

[00:35:15] Speaker 04:
Can I ask you, Mr. Peters, I'm sorry to interrupt.

[00:35:18] Speaker 04:
We've kept you a long time already.

[00:35:20] Speaker 04:
Can you explain whether you think the context of impact and implementation bargaining in which I gather the substantial impact standard first was employed

[00:35:32] Speaker 04:
differs at all from the context of duty to bargain in the first instance?

[00:35:37] Speaker 04:
Does the board treat those two contexts differently, have a different threshold?

[00:35:41] Speaker 04:
Does the authority and does that help at all to explain the evolution of the case law under either statute?

[00:35:50] Speaker 01:
I think that the impact and implementation bargaining is more of a federal sector category.

[00:36:01] Speaker 01:
I think the Bureau of Hearing and Appeals case, the one that was Office of Hearing Appeals, Charleston, South Carolina,

[00:36:09] Speaker 01:
which is cited in the decision and in our brief.

[00:36:12] Speaker 01:
I think that does a good job tracing the history of substantial impact and why it makes sense to apply it to substantively bargainable matters versus impact and implementation.

[00:36:25] Speaker 01:
bargaining, but I think that in light of the authority's lengthy discussion that there's no real reason why to confine it to I&I bargaining in Office of Hearing and Appeals.

[00:36:38] Speaker 01:
I don't know that we get very far by talking about the differences between substantively bargainable and I&I in terms of talking about the substantial impact test.

[00:36:50] Speaker 05:
Okay.

[00:36:53] Speaker 05:
Thank you.

[00:36:54] Speaker 05:
Thank you.

[00:36:55] Speaker 05:
Yeah.

[00:36:56] Speaker 05:
And how much time did Mr. Milledge have left?

[00:36:59] Speaker 05:
Two minutes and 30 seconds.

[00:37:01] Speaker 05:
Okay.

[00:37:03] Speaker 05:
Mr. Milledge.

[00:37:04] Speaker 02:
Thank you, Your Honor.

[00:37:05] Speaker 02:
If I may, a couple quick points.

[00:37:07] Speaker 02:
First, I would just like to say impact and implementation in the federal sector

[00:37:11] Speaker 02:
is a unique beast because it stems entirely from 7106, the interplay between 7106A management rights and 7106B appropriate arrangements and negotiations over procedures.

[00:37:25] Speaker 02:
Going back to the general argument, the authority's decision should be overturned because it is not supported by reasonable and coherent reasons.

[00:37:34] Speaker 02:
The authority says this will lead to more certainty or more predictability

[00:37:39] Speaker 02:
But as Judge Jackson pointed out, that's just simply not the case here.

[00:37:43] Speaker 02:
The de minimis test or the substantial impact test require

[00:37:48] Speaker 02:
a case-by-case analysis of the facts in that case and will vary because the facts in one worksite will be different than the facts in another worksite.

[00:37:56] Speaker 02:
And so you will get differing results based on the situation on the ground in each case.

[00:38:03] Speaker 02:
How one change may impact one worksite will be different than how it impacts a different worksite.

[00:38:08] Speaker 03:
Can I ask you a different question in the quick time that you have left?

[00:38:12] Speaker 03:
Yes, Your Honor.

[00:38:15] Speaker 03:
pointed out at one point, I believe it was in the briefs, that at the time that the statute was enacted, the governing practice was to employ the substantial impact threshold by virtue of the executive order.

[00:38:31] Speaker 03:
So what I'm wondering is why that wouldn't cast Congress's apparent silence on the issue in a different light.

[00:38:40] Speaker 03:
If Congress enacted this statute,

[00:38:42] Speaker 03:
against the backdrop of a world in which substantial impact was being employed and didn't say anything about it, why shouldn't we assume that Congress intended for that to be the governing standard?

[00:38:58] Speaker 02:
Well, Your Honor, I wouldn't say that's accurate.

[00:39:00] Speaker 02:
Congress did say something when they said that you were required to bargain over all matters affecting conditions of employment.

[00:39:07] Speaker 02:
Congress did not say you're required to bargain over all matters substantially.

[00:39:13] Speaker 02:
affecting or substantially impacting.

[00:39:17] Speaker 02:
They said all matters affecting conditions of employment, period.

[00:39:21] Speaker 03:
Your step one Chevron argument is that this is unambiguous and unambiguously in your favor.

[00:39:29] Speaker 02:
That is correct, Your Honor.

[00:39:30] Speaker 03:
I see.

[00:39:32] Speaker 02:
In addition, Congress passed the statute because they decided the executive order wasn't working.

[00:39:38] Speaker 02:
There was a reason the statute was passed because they were moving past the executive order system, which you can see discussion of in Bureau of Alcohol and Tobacco and Firearm and Library of Congress.

[00:39:50] Speaker 02:
And I see I've gone over my time.

[00:39:53] Speaker 05:
Unless there are no further questions.

[00:39:55] Speaker 05:
Thank you, Mr. Miller.

[00:39:56] Speaker 05:
The case is submitted.