[00:00:00] Speaker 03: The next argued case is number 18, file one, United States Capitol Police against the Office of Compliance. [00:00:18] Speaker 05: Proceed. [00:00:19] Speaker 05: Good morning. [00:00:19] Speaker 05: May it please the court. [00:00:20] Speaker 05: My name is Kelly Cindy and I represent the petitioner, United States Capitol Police. [00:00:27] Speaker 05: Congress vested the Capitol Police Board, CPB, and the chief of police, not an arbitrator, with unfettered authority to determine whether a person can continue to hold the uniform, the firearm, and the heavy responsibility of a USC police officer. [00:00:50] Speaker 05: For that reason, Congress enacted the special rule on terminations [00:00:55] Speaker 05: which governs the terminations of USCP employees. [00:00:59] Speaker 05: Further, Congress applied to employees covered by the Congressional Accountability Act provisions of the Federal Service Labor Management Relations statute that courts have interpreted as limiting an employee's rights or abilities to challenge certain serious personnel actions, such as terminations, [00:01:23] Speaker 05: under a negotiated grievance procedure. [00:01:26] Speaker 05: In light of this backdrop, the Office of Compliance Board of Directors, OOC's, decision in this case is inconsistent with these statutory provisions. [00:01:39] Speaker 05: The USCP had no obligation to comply with a May 13, 2014 arbitration award reversing the chief and the CPB's decision [00:01:52] Speaker 05: that Mr. Ricken was no longer fit to serve as a USCP officer. [00:01:58] Speaker 05: They had no obligation to comply with an award requiring that Mr. Ricken return to duty as a USCP police officer. [00:02:06] Speaker 02: So there was no unfair labor practice. [00:02:10] Speaker 05: That is our position. [00:02:12] Speaker 05: Because the arbitration award, because the arbitrator had no jurisdiction under the CAA to issue the arbitration award, [00:02:21] Speaker 05: There could not have been an unfair labor practice. [00:02:24] Speaker 03: Well, it's not explicitly excluded. [00:02:27] Speaker 03: You're saying that that's how the entire relationship, contract relationship with the Capitol Police needs to be interpreted? [00:02:36] Speaker 05: I'm saying that the statutory provisions should be interpreted that way. [00:02:40] Speaker 05: The statutory provisions of the special rule on terminations that apply to the United States Capitol Police. [00:02:48] Speaker 03: You're saying the statute says [00:02:50] Speaker 03: that terminations are not subject to this relationship with the union? [00:02:56] Speaker 02: I see. [00:02:56] Speaker 02: I understand your question. [00:02:59] Speaker 02: If the statute says that on its face... I understand your question. [00:03:02] Speaker 02: ...that can be properly interpreted. [00:03:05] Speaker 05: I'm saying that properly interpreted. [00:03:07] Speaker 05: Let me back up. [00:03:08] Speaker 02: Let me just say something, I'm sorry. [00:03:09] Speaker 02: Sure. [00:03:09] Speaker 02: Let's see if I have your case in my hands. [00:03:13] Speaker 02: You're making a jurisdictional challenge to the board's decision here, essentially on two grounds. [00:03:19] Speaker 02: There's a broader ground for purposes of discussion, I'd like to call the Fausto ground. [00:03:25] Speaker 02: The case, Fausto, a Supreme Court case, subsequent cases in the DC Circuit, the Eighth Circuit, the Ninth Circuit, I believe, and maybe one other. [00:03:36] Speaker 02: In your view, say that the subject matter of termination, at least, is simply taken off the play. [00:03:45] Speaker 02: It can't be part of a collective bargaining agreement. [00:03:48] Speaker 02: It can't exist functionally. [00:03:52] Speaker 02: That is correct. [00:03:53] Speaker 02: You have a second argument, which I take as a subject matter jurisdiction argument, typically. [00:03:58] Speaker 02: But you say in the case of terminations here, there has already been a decision that that subject is entirely controlled by the police board. [00:04:07] Speaker 02: That is correct. [00:04:09] Speaker 02: Because it is entirely covered by the police board, it is not a proper subject to be in an arbitration agreement. [00:04:18] Speaker 02: I'm going to clarify. [00:04:19] Speaker 02: Even assuming, for example, if we rejected Falstow, you would still have the second argument. [00:04:26] Speaker 02: That is correct. [00:04:27] Speaker 02: Because it's more a subject matter than it is a structure. [00:04:33] Speaker 05: That is correct. [00:04:34] Speaker 02: And then I understand you have a timeliness issue as well as to whether or not the unfair labor practice, which goes to the refusal to follow the arbitrary orders of work, whether that was timely filed by [00:04:47] Speaker 02: your adversary, because if it wasn't timely filed, then the decision goes away as well. [00:04:53] Speaker 02: That is correct. [00:04:54] Speaker 02: But it's essentially three arguments. [00:04:56] Speaker 02: That is correct. [00:04:57] Speaker 02: You have a little argument based on whether or not a summary judgment standard was properly applied. [00:05:03] Speaker 02: Fleshing out of your additional arguments is in your reply to the motion to compel, if you will, right? [00:05:09] Speaker 05: That is correct. [00:05:11] Speaker 05: Okay. [00:05:11] Speaker 05: So, I'll start with this. [00:05:13] Speaker 05: That's complicated. [00:05:14] Speaker 05: Yes. [00:05:15] Speaker 05: I'll start with the special rule on terminations. [00:05:19] Speaker 05: Our position essentially is that terminations are specifically provided for by the special rule. [00:05:25] Speaker 05: As such, they're not conditions of employment that are subject to the negotiated grievance procedures under Section 7121. [00:05:32] Speaker 05: The reason we arrived at this conclusion is because the special rule requires the chief of police to submit to the CPB any termination recommendation for a US CP employee. [00:05:49] Speaker 05: This is not merely a procedural requirement. [00:05:52] Speaker 05: The requirement is that he provides notice of any termination under his authority under 2 USC 1907 E1A, and that the CPB then has the authority to approve or disapprove of that termination recommendation. [00:06:10] Speaker 05: For that reason, our position is [00:06:12] Speaker 05: That is the CPB that has final authority to determine whether or not a USCP employee will continue to wear the uniform of a USCP officer. [00:06:24] Speaker 05: It is true that the statute does not specifically state that the decisions of the CPB are not reviewable by an arbitrator. [00:06:34] Speaker 05: But it does not need to state that is our position. [00:06:37] Speaker 05: And the reason it does not need to state that is because the CPB is not subject to the CAA's requirements concerning the labor management relations provisions that have been adopted from the FSLMRS. [00:06:51] Speaker 02: That's because it's not an employing agency? [00:06:54] Speaker 05: It is not an employing agency. [00:06:56] Speaker 02: That's the reason why you just made that statement, correct? [00:07:00] Speaker 05: That is correct. [00:07:00] Speaker 02: Thank you. [00:07:01] Speaker 02: That is correct. [00:07:02] Speaker 02: For me, at least, and you're stating an overarching conclusion, if you kind of drop the footnote to tie it to the proposition or the standard that you're placing your eggs on. [00:07:14] Speaker 02: I will endeavor to do that. [00:07:16] Speaker 02: This was a very complicated case for me. [00:07:20] Speaker 05: OK. [00:07:20] Speaker 05: So our position is, because the CPB is not an employing office, its decision-making as far as USCP terminations or terminations of USCP employees [00:07:32] Speaker 05: are not subject to review by an arbitrator. [00:07:35] Speaker 05: And in this case, you have an arbitrator who made the determination after the CPB and the chief made a determination as determination, and that arbitrator reversed despite finding that the basis of determination was found. [00:07:51] Speaker 05: In doing so, that creates an inherent tension between [00:07:55] Speaker 05: the CPB's determination in this case. [00:07:58] Speaker 05: They determined that Mr. Ricken was not fit to continue as a USCP officer. [00:08:03] Speaker 05: An arbitrator comes along and says, no, I believe, for whatever reason, whatever standards I'm applying, that Mr. Ricken can continue to be a USCP officer. [00:08:15] Speaker 05: And instead of termination, I'm going to impose a 30-day suspension. [00:08:20] Speaker 05: That's the inherent tension between the special rule and terminations [00:08:24] Speaker 05: in which Congress gave to this entity that is outside of the USCP, which consists of the sergeant at arms of both chambers who are elected by the Senate and House respectively. [00:08:39] Speaker 05: And the architect of the Capitol, these three people who have been entrusted with authority over USCP terminations, [00:08:53] Speaker 05: reached this result based on evidence that the USCP presented in presenting its recommendation for termination and the arbitrator therefore reversed that decision. [00:09:07] Speaker 05: Again, this is the inherent tension that we are pointing out that clearly by creating a special rule on termination, Congress intended the CPB and not an arbitrator who has no authority over CPB decisions. [00:09:21] Speaker 03: Why didn't they say so? [00:09:23] Speaker 03: You know, one of the troubling aspects here is that throughout in the origins of this legislative system, it was stated over and over that what we need is some sort of counterpart to the executive merit systems board. [00:09:42] Speaker 03: And there's no question that the merit systems board would have jurisdiction of termination. [00:09:50] Speaker 03: And if it was intended [00:09:52] Speaker 03: To draw this line, isn't it curious that the statute is silent? [00:10:01] Speaker 05: I don't think it's curious at all. [00:10:02] Speaker 05: And the reason why is when the CAA was established by Congress, its stated purpose was to give employees in the legislative branch, particularly as it applies to labor relations, labor management relations statutes, to give them the same rights that employees in the executive branch. [00:10:21] Speaker 05: However, in looking at what statutory provisions to adopt under the CAA, Congress specifically chose not to adopt an MSPB type of system. [00:10:37] Speaker 05: They had that option. [00:10:39] Speaker 05: There was evidence or testimony before them concerning how a MSPB-like system would apply to legislative branch employees. [00:10:50] Speaker 05: And in fact, they adopted such a system for certain legislative branch employees, but they elected not to do so here. [00:10:57] Speaker 05: I didn't say so. [00:10:58] Speaker 03: This is what troubles me. [00:11:01] Speaker 03: They didn't say so. [00:11:02] Speaker 03: If that was an election, it is a powerful distinction. [00:11:10] Speaker 03: Difference from the labor collective bargaining procedures throughout to have an explicit exception. [00:11:19] Speaker 03: And again, this is what I find troublesome is the silence. [00:11:24] Speaker 05: Well, I suppose my point here is that I don't think choosing not to create a system that applies to USCP employees is silence. [00:11:33] Speaker 05: Because they, as I said, they've created such a system for other entities within the legislative branch, such as the GAO, for example, and the Library of Congress has... For the subbing matter, for the people we have in front of us, they created a [00:11:48] Speaker 02: interesting but somewhat unusual statute, very different from what we'll call the MSPB. [00:11:54] Speaker 02: And the legislative history, as I read it, you can correct me if I'm wrong, made very, very clearly that we want a system in which if people use their rights to form collective bargaining groups and they have a collective bargaining agreement, we intend for the decision of the arbitrary to be final and not reviewable. [00:12:14] Speaker 02: I read that in the legislative history throughout. [00:12:17] Speaker 02: The legislative history of the FSLMRS... I'm not talking about the special rule amendment, I'm talking about the creation of the overall system. [00:12:26] Speaker 02: Of the CAA? [00:12:27] Speaker 02: Yes. [00:12:28] Speaker 02: Okay. [00:12:30] Speaker 02: I'm not... The notion, and I read it as far as I could, was clearly we know what we're doing, we're having a situation here where there is a final decision by arbitrators, unlike what happens over on the MSBB side, [00:12:45] Speaker 02: where the decision of the arbitrator is subject to judicial review. [00:12:49] Speaker 02: So it looked to me like they, strange as it would be seen, they created a very different structure. [00:12:57] Speaker 05: What I recall from the legislative history of the CAA, as it applies to the federal labor management relations statute, was that they intended for the employees of the legislative branch to have the same rights that those under the executive branch had. [00:13:13] Speaker 05: I don't recall any mention of permitting an arbitrator to be the final authority with respect to arbitrations of terminations. [00:13:23] Speaker 02: And specifically... No, I don't. [00:13:24] Speaker 02: I'm not saying that language connected it, but I'm talking about in the overarching intent, the structure of the... Say to yourself, well, if I work in Capitol Police or I work in a congressional office, what are my rights? [00:13:38] Speaker 02: What do I get compared to what I would get if I'd been in MSPB? [00:13:42] Speaker 02: And they're different. [00:13:43] Speaker 02: That is correct. [00:13:45] Speaker 05: And to follow up on that, in speaking about the rights allowed for executive branch employees and the rights allowed for congressional branch employees under the CAA, Congress was very specific that when employees in this branch, the executive branch, were permitted to raise appeals in the judicial body, [00:14:09] Speaker 05: that they also intended for employees in the legislative branch that exercised those same rights. [00:14:15] Speaker 05: However, because they didn't adopt the MSPB process, there is no subsequent process that applies to USCP employees, no statutory process that would permit a USCP employee to raise an appeal to an arbitrator's decision to a judicial body. [00:14:36] Speaker 05: There simply doesn't exist that process. [00:14:38] Speaker 05: But this was never contemplated when Congress adopted provisions of the CAA in terms of whether or not an employee who was raising a termination appeal. [00:14:52] Speaker 05: They didn't specifically address that question, is what I'm trying to say here. [00:14:57] Speaker 05: In the legislative history, there is no contemplation about what would occur if an employee who an arbitrator made a decision [00:15:07] Speaker 05: and that employee or the employing office attempted to appeal that decision? [00:15:11] Speaker 02: No, I didn't mean to suggest that the legislative history solves this very case. [00:15:15] Speaker 02: No, clearly, I found none of that. [00:15:17] Speaker 02: OK. [00:15:19] Speaker 02: It just seems to me that we have to decide whether or not, and other cases are raising the same issues as I understand it. [00:15:26] Speaker 02: That's correct. [00:15:26] Speaker 02: The question is whether or not the FAOSTA argument in essence just asks from this whole system this type of a problem, and if not, whether or not [00:15:37] Speaker 02: special rule because it deals with termination, simply says this is not proper subject matter for a collective bargaining agreement. [00:15:46] Speaker 05: So with that, I want to turn to Section 7121 and the Fausto decisions if there are no questions, further questions about the special rule itself. [00:15:55] Speaker 03: We will save some rebuttal time. [00:15:57] Speaker 03: Let's hear from the other side. [00:15:59] Speaker 05: Okay. [00:16:06] Speaker 03: Mr. Heumann. [00:16:10] Speaker 01: Thank you. [00:16:11] Speaker 01: May it please the court? [00:16:12] Speaker 01: Good morning. [00:16:13] Speaker 01: The Technical Corrections Act became law on March 4th of 2010. [00:16:19] Speaker 01: On June 8th of 2010, some three months afterwards, the collective barter agreement that said it should hear it was reached between the parties. [00:16:27] Speaker 01: Clearly at that time, the Chief of Police believed that it was in the best interests of the Capitol Police [00:16:34] Speaker 01: to provide for arbitration of removals. [00:16:37] Speaker 01: And that there was nothing in the TCA itself that prevented arbitration of removals. [00:16:48] Speaker 02: That's an interesting background point, but it isn't just positive for the interpretation of the statute, right? [00:16:56] Speaker 01: Right. [00:16:56] Speaker 01: But I mean, obviously at the time, very recently after the Act was passed, they did not believe there was anything in that Act that prevented them from arbitrating [00:17:04] Speaker 01: removal decisions. [00:17:06] Speaker 02: There may well have been since that time that the special rule was enacted, terminations that they didn't agree with, cases like this that they didn't appeal up. [00:17:18] Speaker 01: But essentially their argument is that they violated the law when they entered into the agreement providing for removal of terminations, so they could not have violated the law on March 16th of 2015 when they refused to comply with the arbitration award. [00:17:35] Speaker 01: So it seems to be the only question is whether the police chief had the authority to enter into this agreement after the TCA was enacted. [00:17:46] Speaker 01: And if you follow the approach that this court typically takes, you look at the statutes that apply to the Capitol Police and not to the statutes that don't apply to the Capitol Police and speculate as to why they don't apply. [00:17:56] Speaker 01: And if you look at the statutes, the first one I think is a very broad statute, which is 1907E1A, [00:18:05] Speaker 01: which says the chief of the Capitol Police in carrying out the duties of office is authorized to appoint, hire, suspend, with or without pay, discipline, discharge, and set the terms, conditions, and privileges of employment of employees of the Capitol Police, subject to and in accordance with applicable laws and regulations. [00:18:24] Speaker 01: This is a very broad grant of discretionary authority to the police chief. [00:18:29] Speaker 01: And there is simply nothing in this language [00:18:32] Speaker 01: It prevents the chief from deciding that it's in the best interest of his department to decide that arbitration of removals is the way to handle that. [00:18:43] Speaker 02: He has to do this subject to all applicable laws. [00:18:47] Speaker 01: Excuse me? [00:18:47] Speaker 02: He says he has to take those decisions subject to all applicable laws. [00:18:51] Speaker 01: That's true, and regulations. [00:18:54] Speaker 01: If you look at the legislative branch as a whole, the authority is under Title II and not under Title V. [00:19:02] Speaker 01: And really the legislative branch is in the same situation that the executive branch was prior to the Civil Service Reform Act. [00:19:09] Speaker 01: There has never been any attempt to try to make all the rules uniform, so that the rules of the architect of the Capitol are much different than the Capitol Police rules, than the Library of Congress's rules. [00:19:21] Speaker 01: And for the most part, the rules are by regulation or by the collective bargaining agreement. [00:19:26] Speaker 01: And there's nothing really in the language that they pass that restricts [00:19:29] Speaker 01: the ability to negotiate, put that in the collective bargaining agreement. [00:19:33] Speaker 02: And again, when you look at the special rule, the special rule again does not... The collective bargaining agreements rise up to the level of regulations. [00:19:41] Speaker 02: So when the chief is told that he has to make his termination decisions inconsistently with all applicable law and regulations, does that include a CBA? [00:19:50] Speaker 01: I think it does, yes. [00:19:52] Speaker 01: If he's agreed to that as part of the CBA, then those provisions become part of that. [00:19:57] Speaker 02: The CBA could [00:20:01] Speaker 02: What happens if a CBA conflicts with a regulation of governance? [00:20:09] Speaker 01: Well, again, that would be a problem. [00:20:11] Speaker 01: But of course, obviously, the chief of police, when he entered into the agreement, believed at the time it did not conflict with the regulation. [00:20:20] Speaker 01: I mean, I can't imagine a chief agreeing to something that was contrary to his own regulations. [00:20:26] Speaker 03: Well, we didn't really get to conflict [00:20:31] Speaker 03: But we really do have the question that's being pressed where there is silence and the interpretation. [00:20:43] Speaker 01: Right. [00:20:43] Speaker 01: And it seems to me that the language that we have, though, seems to grant the authority. [00:20:49] Speaker 01: And the only restriction is that prior to removing somebody, he has to get either implicit or explicit approval from the Capitol Police Board. [00:20:58] Speaker 01: But it's still his decision. [00:20:59] Speaker 01: There's nothing in there that says this is the Capitol Police's decision. [00:21:02] Speaker 01: But the board can overrule it. [00:21:04] Speaker 01: I'm not sure it can. [00:21:05] Speaker 02: There's nothing in the act itself that says that... What's the language that says when we have to go to the... That's of the special rule. [00:21:15] Speaker 02: What is that specific language? [00:21:18] Speaker 01: That language is, the chief may terminate an officer, member or employee only after the chief has provided notice of the termination of the Capitol Police Board [00:21:27] Speaker 01: in such manner as the board may from time to time require. [00:21:30] Speaker 01: And? [00:21:31] Speaker 01: And the board has approved the termination. [00:21:33] Speaker 01: Except that if the board has not disapproved the termination prior to the expiration of the 30-day period. [00:21:38] Speaker 02: What happens if the board disapproves? [00:21:40] Speaker 01: I assume if he disapproves, the board disapproves, then he cannot proceed with the termination. [00:21:45] Speaker 02: So the board can tell the chief of police, I'm sorry, you want to terminate Clevinger, but you can't? [00:21:53] Speaker 01: Correct. [00:21:54] Speaker 01: But they can't tell the police that he has to terminate Clevenger. [00:21:56] Speaker 02: Doesn't that put the final power in the board? [00:21:59] Speaker 01: Well, as I said, but they can't tell the police he has to terminate Clevenger. [00:22:03] Speaker 01: It's still his option whether to proceed after he obtains the approval of the board, whether to proceed with the termination. [00:22:10] Speaker 01: Other evidence came up, you know, after he obtained the approval from the board, there's nothing in this statute that requires him to even terminate Clevenger. [00:22:17] Speaker 02: So assuming the board disapproved, does the chief of police can still terminate him? [00:22:23] Speaker 01: No. [00:22:26] Speaker 01: But if they approve or implicitly approve, he still does not have to terminate the officer. [00:22:32] Speaker 01: There's nothing in the statute that says that. [00:22:34] Speaker 01: In fact, it says very clearly that it's his decision. [00:22:37] Speaker 01: The police chief may... He could change his mind? [00:22:41] Speaker 01: He could change his mind? [00:22:51] Speaker 01: And it's also, I think, worthwhile to point out that there are limitations on that authority in other places in the statute. [00:22:58] Speaker 01: So in 1921A, it says very specifically that the Capitol Police Board and the chief of the Capitol Police shall have the sole and exclusive authority to determine various types of compensation. [00:23:11] Speaker 01: And then they go on to say that the determination of a rate or amount described may not be subject to review or appeal in any manner. [00:23:20] Speaker 01: So what you have is language further on in the statute that says these are areas where there cannot be any review. [00:23:26] Speaker 01: Very specific language saying this is a decision that the board must make and the Capitol Police can make and nobody else has any review. [00:23:34] Speaker 01: And you do not see that language when it comes to terminations or removals. [00:23:43] Speaker 01: If I can move on to the Falstow Arguments. [00:23:46] Speaker 01: I think the [00:23:47] Speaker 01: One thing I think to bear in mind is that the Congress responded to Fausto by passing the Civil Service Due Process Amendments of 1990, which in fact restored the rights to employees like Fausto who did not have the right to appeal. [00:24:00] Speaker 01: And I think that's why you don't see any circuit court decisions after 1990 that espouse the Fausto type of line of reasoning. [00:24:12] Speaker 01: So what you don't have, as I said, unlike with the Civil Service Reform Act, you had no attempt [00:24:17] Speaker 01: to place legislative branch agencies under some type of comprehensive civil service procedure like you had with Civil Service Reform Act. [00:24:26] Speaker 01: And on their falsity, you had a very carefully reasoned decision that said you had an employee who was given some rights under Chapter 45 of Title 5 but was denied certain other rights under Chapter 43 of Title 5. [00:24:43] Speaker 01: That's not the situation here. [00:24:45] Speaker 01: We don't have any statute that gives the employee certain rights and denies them certain other rights. [00:24:51] Speaker 01: So it's very hard to apply the type of Fausto reason here. [00:24:54] Speaker 02: There's no predicate here. [00:24:56] Speaker 02: There's no predicate for taking the Fausto logic and trying to put it on to this environment. [00:25:04] Speaker 01: Correct. [00:25:05] Speaker 01: You don't have any type of [00:25:06] Speaker 02: attempt to kind of comprehensively... Not a matter of congressional employees trying to get something that Congress already told them they couldn't have. [00:25:14] Speaker 01: That's right. [00:25:14] Speaker 01: That's right. [00:25:18] Speaker 01: In terms of their arguments regarding the sections of the Federal Service Labor Management Relations Statute, I mean, you have 7121E1, which is simply a choice of forum provision. [00:25:31] Speaker 01: Basically, it says that if you choose one forum, you can't re-litigate it in the other [00:25:37] Speaker 01: You have 7121F, which again allows for direct review of arbitrations and removal cases if, in fact, the internal procedure of the office provides for direct review of removal decisions. [00:25:49] Speaker 01: So again, I don't think either of those apply to this situation here. [00:25:54] Speaker 01: But even if they do, that's what the plain language of those statutes say. [00:25:58] Speaker 01: They don't say anything about denying people the right to arbitrate their removal decisions. [00:26:05] Speaker 01: Regarding the timeliness argument, I think if you look at page 50 of the brief filed by the Capitol Police, what you see is really a total inaccurate statement of what the rule of law is in the DC Circuit. [00:26:25] Speaker 01: In the very first sentence, they say the limitation period on ULP charts begins around when the integer party discovers, when the exercise of the due diligence should have discovered that it had [00:26:35] Speaker 01: If you read that case, yes, they do have that quotation in there. [00:26:38] Speaker 01: But in the very next sentence, they say, we are not adopting a discovery rule. [00:26:43] Speaker 01: If you read the next sentence, they say, whereas here the ULP charge alleges that the FOP suffered an injury. [00:26:49] Speaker 02: Page 50, you say? [00:26:50] Speaker 01: Page 50, yes. [00:26:52] Speaker 02: We're in page 50. [00:26:53] Speaker 01: Right at the top of the page. [00:26:55] Speaker 01: OK. [00:26:57] Speaker 01: The second sentence says, [00:26:59] Speaker 01: that the standard is when the department failed to comply with an arbitration award, the cause of action accrued when the department first had an opportunity to comply with the award. [00:27:09] Speaker 01: Again, if you read the decision, they decided just the opposite. [00:27:12] Speaker 01: What they said is that the statute does not begin when the arbitration award became final. [00:27:18] Speaker 01: In fact, it begins when they failed to comply or notified them that they failed to comply. [00:27:23] Speaker 01: And then in the third sentence, they go on to say that they adopted [00:27:27] Speaker 01: Two points, one is that it occurs when a party expressly rejects its obligation to comply with the award, or two, simply fails to take the steps ordered by the award. [00:27:38] Speaker 01: Again, they do make two points, but the second point is not accurately stated. [00:27:47] Speaker 01: The second point, if you read the case as, when award establishes a deadline for implementing obligations required by the award, [00:27:55] Speaker 01: and the deadline passes without the party taking any action to implement the award. [00:28:00] Speaker 01: That's the standard. [00:28:00] Speaker 01: And that's the standard the board applies. [00:28:02] Speaker 02: In this case, the date upon which the Capitol Police would like to have the obligation to timely file an unfair labor practice, date X, correct me if I'm wrong, but doesn't the record show that after the date that they specify the Capitol Police was telling the other side we're still thinking about it? [00:28:21] Speaker 01: Yes. [00:28:22] Speaker 02: So if they choose a date to trigger the duty to file the Unfair Labor Records, but they're telling the people who are supposed to file it, well, we don't know whether you're going to need to file one or not. [00:28:33] Speaker 02: We haven't made up our mind what to do. [00:28:36] Speaker 01: Right. [00:28:36] Speaker 01: And I think if you look at this record, it's clear they did not make up their mind what to do until March 6th when the Capitol Police Board issued that order directing the Capitol Police Chief not to comply with decisions from the Office of Compliance. [00:28:50] Speaker 01: I mean, if you believe them that the Capitol Police Board is really the decider in this case, I think the record is quite clear that that did not happen until March 6th when they said, when they ordered the Capitol Police not to comply with the order. [00:29:03] Speaker 02: Can I ask a question about the cross application for enforcement of the final decision? [00:29:09] Speaker 02: We have that as an independent motion that, if it will, has been filed. [00:29:14] Speaker 02: I mean, I've been on court 28 years. [00:29:17] Speaker 02: I've never seen, I realize that the FRAP [00:29:20] Speaker 02: federal rules of public procedure provided. [00:29:22] Speaker 02: I've never seen an instance where someone comes in and says, order the agency to do what your opinion tells them to do. [00:29:31] Speaker 01: I think it's fairly common if you look at NLRB and FLR cases when it comes out on review to actually petition for enforcement as well so that the issue doesn't come back to you in another form. [00:29:43] Speaker 01: So if we have, especially where you have a party that's [00:29:46] Speaker 01: demonstrated a reluctance to comply with any orders from the compliance board. [00:29:50] Speaker 02: Is this more, I mean, ordinarily a failure to follow a court order would result in a contempt, wouldn't it? [00:30:00] Speaker 01: That's correct. [00:30:01] Speaker 02: Is this contempt on contempt? [00:30:03] Speaker 02: I don't quite understand why this needs to be done. [00:30:07] Speaker 01: Well, unless there's an order from the court for compliance, there would be no contempt. [00:30:12] Speaker 01: I mean, our board cannot enforce a contempt proceeding. [00:30:16] Speaker 01: I mean, we would need a court order in order to do it. [00:30:19] Speaker 02: We would have to come back to us and say, the Capitol Police have not yet done what they were supposed to do. [00:30:26] Speaker 01: Correct. [00:30:27] Speaker 02: And I suppose at that stage in the game, we could call the Capitol Police in and say, well, you haven't done what you were supposed to do. [00:30:33] Speaker 02: And then perhaps a contempt would come. [00:30:35] Speaker 01: Right. [00:30:37] Speaker 01: The purpose of filing the petition for enforcement is so that whatever argument they have for not complying with the orders addressed here, rather than having another proceeding for that, [00:30:46] Speaker 01: I mean, that's the reason why it's routinely done. [00:30:48] Speaker 01: I mean, in many circuits, all it is, usually it says affirmed and enforced is all it says. [00:30:54] Speaker 01: I mean, it's a very simple order. [00:30:58] Speaker 03: Did you intend to leave some time for your colleague? [00:31:01] Speaker 03: Yes, I did. [00:31:02] Speaker 03: We're close to exhausted, but we'll restore it. [00:31:06] Speaker 03: OK, so let's hear from Mr. Rickson. [00:31:11] Speaker 00: Thank you. [00:31:11] Speaker 00: May it please the court. [00:31:12] Speaker 00: My name is David Ricksecker, and I'm here representing the intervener who is the FOP, U.S. [00:31:18] Speaker 00: Capitol Police Labor Committee, and Officer Andrew Ricken, who's here today. [00:31:22] Speaker 00: For the short time that I do have, I'd like to focus a little bit on the background. [00:31:27] Speaker 00: I can address the time in this issue as well, and that this is exactly what the parties, the way this is worked through this process is exactly what the parties have bargained for in their collective bargaining agreement. [00:31:39] Speaker 00: The events [00:31:40] Speaker 00: that began this heavily litigated case were seven years ago. [00:31:47] Speaker 00: Back in 2011, there's been three appeals to the Office of Compliance Board through this process. [00:31:55] Speaker 00: And a few things to keep in mind when considering all of this is that prior to the events at issue here, he had never received any discipline in his six years on the U.S. [00:32:05] Speaker 00: Capitol Police Force. [00:32:07] Speaker 00: And since then and the time that he has been [00:32:10] Speaker 00: on terminated. [00:32:13] Speaker 00: He has been serving in the Army National Guard, or excuse me, the Army Reserves. [00:32:18] Speaker 00: He has maintained a DOD security clearance. [00:32:20] Speaker 00: There's absolutely no risk in having him. [00:32:24] Speaker 03: Well, I think the merits of the action are not before us. [00:32:28] Speaker 03: Isn't that right? [00:32:29] Speaker 03: We have to cross these procedural. [00:32:32] Speaker 00: Sure. [00:32:33] Speaker 00: And I'll move on to that, Your Honor. [00:32:39] Speaker 00: For starters, this is exactly what the parties bargain for in their collective bargaining agreement. [00:32:43] Speaker 00: They anticipated that terminations and arbitrations involving terminations would be considered under Section 32.13 of their collective bargaining agreement, detailing when the date of a final decision would be for removal of a USP employee from the payroll. [00:33:02] Speaker 00: They also, in defining the purpose of discipline, [00:33:07] Speaker 00: that it's not solely to punish the employee, that they're going to consider progressive discipline, that removal was the severest form of discipline that the department can use. [00:33:17] Speaker 00: And then in the very next section, they address that this covers actions involving command discipline, including removals. [00:33:27] Speaker 00: And basically what the arbitrator simply did was apply that contract to ensure that the department and the chief in making his determination to [00:33:36] Speaker 00: terminate this employee or discipline this employee, followed the procedure set out in 31.03. [00:33:43] Speaker 02: No, there's no argument about it. [00:33:46] Speaker 02: I mean, you're saying what the other side would agree with. [00:33:48] Speaker 02: The question in front of us is not whether or not the arbitrator did what the agreement told him to do. [00:33:53] Speaker 02: The question is, did he have the authority to do it? [00:33:56] Speaker 02: Correct. [00:33:56] Speaker 02: So what information do you have to help us decide that question? [00:34:01] Speaker 00: So on two points really quickly, and then I do want to address the timeliness issue, but on that point, [00:34:07] Speaker 00: is, first of all, they have the option of an appeals process. [00:34:13] Speaker 00: In the legislation, it said an option of the appeals process or a negotiated grievance procedure. [00:34:19] Speaker 00: And here, as we've discussed, there is no MSPB type entity. [00:34:25] Speaker 00: And so the negotiated grievance procedure is what would be used for termination. [00:34:29] Speaker 00: And that is what was used in this case and in other cases. [00:34:35] Speaker 00: Also here, [00:34:37] Speaker 00: The CPB is not the Employing Authority agency. [00:34:42] Speaker 00: They do not have the final authority on termination. [00:34:46] Speaker 00: They cannot determine who should be terminated or when or what. [00:34:50] Speaker 00: They can only act on the decisions made by the chief. [00:34:54] Speaker 00: The chief has the discretion and the discretion to apply all of these factors, the employee's work record, the seriousness of the offense, [00:35:04] Speaker 00: Prior discipline how others are treated the CPB board doesn't they simply review that and they can stay silent but they cannot initiate any sort of action or recommend any sort of Discipline that's hardly surprising And they have nothing to do with the day-to-day conduct of the police force I Understand that the statute really irrelevant that they lack the authority to initiate [00:35:32] Speaker 02: My key point from your adversary, which you have to deal with, is that the board has the final say. [00:35:38] Speaker 02: The board can say, excuse me, you cannot terminate that person. [00:35:43] Speaker 00: They can. [00:35:43] Speaker 00: They could, they could also simply remain silent. [00:35:46] Speaker 02: In fairness to your adversary, address her point of view. [00:35:52] Speaker 02: She says, well, the fact that if the chief of police says I want to terminate Clevinger and the board says you can't do it. [00:35:59] Speaker 02: And the chief of police has to fold his hands and say, well, sorry, I don't have any power here. [00:36:05] Speaker 02: That seems to me to be an argument that has some merit. [00:36:10] Speaker 00: I understand that. [00:36:11] Speaker 00: But my point is there has to be that they were, it was envisioned that they would have, these employees would have rights to enforce certain labor relations statutes. [00:36:26] Speaker 00: And one of those is being able to prevent [00:36:30] Speaker 00: such improperly applied discipline or overly harsh discipline, that kind of thing. [00:36:40] Speaker 00: And if you weren't able to appeal the decision by the chief who was applying all of these, there would be no effective remedy. [00:36:51] Speaker 00: And so for those purposes, I think it's very clear that [00:36:57] Speaker 00: It was envisioned that terminations would be covered both through the statute. [00:37:01] Speaker 00: There's silence on whether terminations should apply or not in the statutory history and the regulatory history. [00:37:09] Speaker 00: So for those reasons, I think the department's argument is without merit. [00:37:16] Speaker 00: I do want to address a couple of things on the timeliness issue. [00:37:19] Speaker 00: Basically on that, you're on risk. [00:37:25] Speaker 00: Absolutely correct. [00:37:26] Speaker 00: The order came out from the OOC board on the first appeal. [00:37:32] Speaker 00: The agency, the department never distinguishes or defines a date that they believe should set the ULP clock ticking. [00:37:40] Speaker 00: They basically say it could be anywhere between December 15th or January 26th. [00:37:45] Speaker 00: However, on December 19th, when the arbitrator was informed of the order, they said, we will work with the union to comply with this award or something to that effect. [00:37:55] Speaker 00: After some back and forth on that, in January 26, they said, when asked, when are you going to produce the information required to calculate back pay and when can you give us the details on how Officer Ricken is to report back to work, get back up to speed on any training he's missed, get his equipment and his uniform, all the stuff that he had to turn in. [00:38:18] Speaker 00: The response was, let me check with my client on how they want to deal with this. [00:38:22] Speaker 00: I think two weeks went on from that. [00:38:26] Speaker 00: Nothing had happened. [00:38:27] Speaker 00: So the arbitrator said reinstate him within 30 days, which put us to, I believe around March 20th would have been 30 days. [00:38:36] Speaker 00: And on March 13th was the very first time the department said, we do not intend to comply with this award because we don't believe the arbitrator had jurisdiction. [00:38:46] Speaker 00: Therefore, at any one of these points, whether it's March 13th, the date they informed that [00:38:52] Speaker 00: the parties that they don't believe he had authority, or March 20th, or even what we argued originally was the date of the June 17th order, clarifying the award with the actual damages owed and such. [00:39:06] Speaker 00: Those all fall within the time period to file the ULP, and therefore that argument is without merit. [00:39:12] Speaker 00: I know I'm out of time, so I appreciate your time. [00:39:14] Speaker 00: If you have any more questions, I'd be happy to answer them. [00:39:16] Speaker 03: Any more questions? [00:39:19] Speaker 03: Thank you. [00:39:27] Speaker 03: Thank you. [00:39:29] Speaker 05: I'm going to start really quickly with the arguments that have been made as far as the timeliness issue. [00:39:39] Speaker 05: Opposing counsel for the Office of Compliance states that the USCP set forth a discovery rule, and I'm just going to read directly from our reply brief, which says, [00:39:51] Speaker 05: While the Office of Compliance Board of Directors acknowledges this evidence and does not dispute it, referring to the timeliness, the time period in which the board's decision was issued and the procedures that are followed after that decision was issued, it summarily dismisses it by mischaracterizing the department's argument as invoking the discovery rule, contrary to the OOC board's decision [00:40:21] Speaker 05: assertion, however, the USCP is not arguing that the statutory period began to run at the time of the FOP's discovery of the USCP's noncompliance. [00:40:32] Speaker 05: Rather, it cites this evidence to show that long before the arbitrator sent the February 17, 2015 email, the USCP's first opportunity to comply with the May 13th award had come and gone without the USCP taking any steps to comply [00:40:49] Speaker 05: is shown by the arbitrators and the FOP's correspondence. [00:40:54] Speaker 05: Let me go into a little bit detail of what that means. [00:40:58] Speaker 05: On December 12, 2014, the Office of Compliance Board of Directors issued its decision denying the USCP's exceptions as to the May 13, 2014 arbitration award. [00:41:12] Speaker 05: According to the Office of Compliance's own regulations, [00:41:17] Speaker 05: where an arbitration award, the May 13th award, does not specifically include a deadline. [00:41:24] Speaker 05: The deadlines of the rules apply. [00:41:27] Speaker 05: And the deadline set forth by the rules, which is Office of Compliance Procedure Rule 8.03a, states, a party required to take any action under the terms of a final decision of the Office of Compliance Board of Directors shall carry out its terms promptly. [00:41:46] Speaker 05: and shall within 30 days after the decision or order becomes final and goes into effect by its terms, provide the OOC and all parties to the proceedings with a compliance report specifying the manner in which compliance with the provisions of the decision or order has been accomplished. [00:42:06] Speaker 05: Following the OOC board's decision on December 12, 2014, the USCP took no steps [00:42:15] Speaker 05: None to comply with the final decision of the office compliance with the May 13, 2014 award. [00:42:23] Speaker 05: 30 days thereafter, the USCP filed no report explicitly setting forth what it had done or what it was going to do to comply with that decision. [00:42:34] Speaker 05: Indeed, the arbitrator and the union's correspondence in this case demonstrate that the USCP's [00:42:42] Speaker 05: obligation to comply occurred well before the arbitrator issued its February 17, 2015 email, setting a deadline of March 17th, I believe it was, to comply. [00:42:57] Speaker 05: So prior to any such amendment by the arbitrator to his award, there was an obligation to comply. [00:43:08] Speaker 05: And under National Treasury Employees Union, [00:43:13] Speaker 05: versus the FLRA, the DC Circuit stated that it is the first obligation to comply, not when the order, as the Office of Compliance has argued, not when the order becomes final. [00:43:26] Speaker 05: The issue is when was the USCP's first obligation to comply? [00:43:30] Speaker 05: And under its own regulations, that first obligation to comply was promptly after the order was issued. [00:43:37] Speaker 05: We've argued in our brief that that meant December 15, 2014, [00:43:42] Speaker 05: the USCP had some obligation to act. [00:43:45] Speaker 05: December 15, 2014 is the first business day after the Office of Compliance Board of Directors decision was issued. [00:43:54] Speaker 05: So based on that, any argument that the USCP's obligation to comply didn't arise until three months after the Office of Compliance issued its decision is just not supported by the case law. [00:44:12] Speaker 05: And it's not supported by the evidence in the record. [00:44:17] Speaker 05: I'll move on now to the Section 7121 arguments that were raised by the closing counsel. [00:44:21] Speaker 05: All right, you're short of time, so be speedy. [00:44:23] Speaker 05: I will be. [00:44:24] Speaker 05: I want to take to its conclusion the Office of Compliance's argument that an issue may arise before an arbitrator concerning terminations [00:44:39] Speaker 05: and subject to 7121E, 7121F, and 7122, there is no ability for the USCP or the employee to challenge the arbitrator's decision. [00:44:52] Speaker 05: That means that the arbitrator's decision would be final and binding on the parties, and there would be no opportunity for judicial review. [00:45:00] Speaker 05: That is unprecedented not only in the public sector, but the private sector, where there is still judicial review of an arbitrator's decision. [00:45:08] Speaker 05: critical here because unlike in the private sector, arbitrators in the public sector may be construing statutory federal and state law provisions in resolving the case or the dispute between the parties. [00:45:25] Speaker 05: And what 7121EFN22 do is prevent any party from challenging those decisions. [00:45:33] Speaker 05: An arbitrator who oftentimes doesn't even have a law degree [00:45:38] Speaker 05: will have final say as to what a statutory interpretation is, whether or not an employee should be deemed fit or unfit to continue as a USCP officer. [00:45:50] Speaker 05: That is unprecedented in both the public and private sector. [00:45:53] Speaker 05: And for that reason, we believe that Congress expressly chose these provisions of 7121. [00:46:01] Speaker 05: The Office of Compliance says they don't apply here, but they do. [00:46:04] Speaker 05: They were adopted by the CAA. [00:46:06] Speaker 05: And for that basis, when you have something that is adopted by Congress, knowing that these provisions have been construed to limit the rights of employees to challenge certain personnel actions when they've been deprived of those rights otherwise in another statutory appellate system, you can only conclude that Congress understood how those provisions would apply to employees in the legislative branch [00:46:37] Speaker 05: who are now subject to those provisions? [00:46:42] Speaker 02: Unless there are further questions. [00:46:43] Speaker 02: The argument is that all this applies to some issues, but not to others. [00:46:47] Speaker 05: I'm sorry, I didn't hear your question. [00:46:49] Speaker 02: You've said in your briefs the same thing. [00:46:51] Speaker 02: You said, well, certain things are going to be excluded because of the Faust argument, not everything. [00:46:57] Speaker 02: That is correct. [00:46:57] Speaker 02: What kind of personnel action would say terminations for purpose of argument are excluded? [00:47:03] Speaker 02: Yes. [00:47:03] Speaker 02: What about 13-day suspensions? [00:47:06] Speaker 05: 13-day suspensions are not precluded by any statutory provision under the FSLMRS. [00:47:11] Speaker 02: I guess you're saying that everything would be fine. [00:47:15] Speaker 02: A final arbitrator's decision on a 13-day suspension would be OK. [00:47:20] Speaker 05: Well, there wouldn't be a final arbitration. [00:47:22] Speaker 05: And this is critical. [00:47:23] Speaker 05: So in those situations, there is an opportunity to appeal. [00:47:28] Speaker 02: For example, the Capitol Police said, we're not going to terminate you, but we're going to unemployed you for a year. [00:47:37] Speaker 02: It's not termination, it's just your go away for a year with no pay. [00:47:43] Speaker 02: Under your argument, that person could still go in this system and come to a final arbitration. [00:47:48] Speaker 02: That was the part of your whole case that troubled me was to say, well, certain rights are going to be covered, but others are not. [00:47:58] Speaker 02: And so I couldn't understand, other than your special rule argument, I couldn't quite understand why termination would be peeled out. [00:48:06] Speaker 05: So let me clarify. [00:48:08] Speaker 05: So the subject matters of 7121E and F and 7122 concern specific statutes or provisions of the CSRA. [00:48:18] Speaker 05: Those provisions are chapters 43 and chapter 75, if I'm not mistaken. [00:48:23] Speaker 05: Those include any suspensions, I believe, over 15 days, terminations, demotions, and I'm sure I'm missing some others. [00:48:34] Speaker 05: And those are the provisions [00:48:36] Speaker 05: that we're saying, or those are the subject matters that are governed by those particular provisions of 7121. [00:48:43] Speaker 02: For you, those are wrong. [00:48:44] Speaker 05: Those are off the table. [00:48:46] Speaker 05: But 7121 says these matters, these matters covered by chapter 75 or chapter 43, and other similar matters under, I might be getting the language wrong, but they're saying similar matters under other personnel systems. [00:49:00] Speaker 05: So it's not just chapters 43 and chapter 75 that apply. [00:49:06] Speaker 05: It's saying those topic matters covered by those sections and other similar matters under other personnel systems are what these provisions apply to. [00:49:16] Speaker 05: And so for that reason, when the subject matter of agreements decides... Is the CAA one of those other provisions? [00:49:24] Speaker 02: Is the CAA... Is the whole congressional system an other system? [00:49:31] Speaker 05: It is an other personnel system. [00:49:33] Speaker 05: It's not a part of the CRA. [00:49:35] Speaker 05: Sorry, CSRA. [00:49:37] Speaker 05: I understand that. [00:49:38] Speaker 02: But versus that one statute we're now talking about where they have that language other system, the CAA is part of that. [00:49:46] Speaker 05: That is correct. [00:49:47] Speaker 05: So the line that we're drawing is the line that's drawn by the statute with respect to specific subject matter, specific subject matter that Congress, if you look at the legislative history of the FFLMRS, says these are serious personnel actions [00:50:04] Speaker 05: And we want more than just the negotiated grievance procedure, the appeal, the process that's available there. [00:50:11] Speaker 05: Employees subject to these actions deserve a heightened level of scrutiny, for example, if such scrutiny is available in the statutory appeal system. [00:50:21] Speaker 02: Right. [00:50:22] Speaker 02: But the result of your theory is that the Capitol Police, who are subject to get nothing, they can be [00:50:33] Speaker 02: 14-day suspension, they can be terminated and it's over. [00:50:38] Speaker 02: It's solely at the discretion of the police force. [00:50:42] Speaker 02: They have no due process rights at all. [00:50:46] Speaker 05: It's not that they don't have due process. [00:50:47] Speaker 02: Well, they have no rights. [00:50:48] Speaker 02: I mean, they can't grieve because it's not subject to a grievance. [00:50:53] Speaker 02: They have no place to go. [00:50:55] Speaker 02: They get the notice from the Capitol police that's been approved by the board saying you're fired, you leave. [00:51:03] Speaker 02: They don't have an APA cause of action, they're gone. [00:51:08] Speaker 02: You're saying for purposes of this class of punishments, if you will, the serious stuff, the employee who is seriously punished has no recourse. [00:51:23] Speaker 02: So let me back up for a second. [00:51:25] Speaker 02: I mean, I'm not trying to be... No, no. [00:51:26] Speaker 02: And I want to answer your question. [00:51:28] Speaker 02: That's the other side of your coin. [00:51:30] Speaker 02: One side of your coin is, could Congress have really meant to let an arbitrator have all this power and tell the police force we should be there? [00:51:39] Speaker 02: So that's your counter to the argument, well, Congress really intended that these people have no rights at all. [00:51:46] Speaker 02: Period. [00:51:47] Speaker 02: Totally unlike all their counterparts. [00:51:51] Speaker 02: in the CSRS. [00:51:52] Speaker 05: Well, it's actually not unlike all their counterparts in the CSRS. [00:51:56] Speaker 02: Unlike those in the CSRS who were given CSRS rights. [00:51:59] Speaker 02: That's right. [00:52:00] Speaker 02: So we know from our previous experience that DEA officers, for example, criminal law enforcement officers, have full MSPB rights because they're in front of us all the time. [00:52:12] Speaker 02: But you're saying what Congress really meant was a law enforcement officer over in the executive branch [00:52:19] Speaker 02: unless Congress specifically took them out of CSRA, has lots of rights, whereas the Capitol Police had none. [00:52:26] Speaker 02: I mean, I think that's your argument. [00:52:28] Speaker 02: Tell me if I'm wrong, because I don't want to go wrong here. [00:52:31] Speaker 02: Right. [00:52:32] Speaker 05: It is correct, but let me clarify further. [00:52:35] Speaker 05: Okay. [00:52:35] Speaker 05: Thank you. [00:52:35] Speaker 05: So we start with the due process notion. [00:52:40] Speaker 05: There is due process internally. [00:52:42] Speaker 05: So employees still are able before the [00:52:47] Speaker 05: Chief of Police recommends any termination. [00:52:50] Speaker 05: Employees get notice that they are being recommended for termination. [00:52:53] Speaker 05: And there's an entire process, including a disciplinary review board, where they can choose to appear before their peers and other persons in the department with authority to decide these matters and to review it and determine it. [00:53:09] Speaker 05: And in fact, I believe Officer Rickin did appear before a DRB. [00:53:14] Speaker 05: So it is correct that, [00:53:16] Speaker 05: taking my argument to its full conclusion, there would be no negotiated grievance procedure as to certain serious personnel actions because such procedures or such appellate challenges don't exist outside of the negotiated grievance procedure. [00:53:33] Speaker 05: There would be no opportunity for someone outside, besides the CPB, to review a termination decision. [00:53:40] Speaker 05: That is absolutely correct. [00:53:41] Speaker 05: However, that's not unlike the executive branch where employees who were denied access to the CSRA's appellate procedures for terminations and other serious personnel actions were also denied access to the negotiated grievance procedure. [00:54:01] Speaker 02: Okay. [00:54:01] Speaker 02: Thank you. [00:54:02] Speaker 02: I'm sorry I took additional time, but I found this case very, very difficult. [00:54:06] Speaker 02: Thank you. [00:54:07] Speaker 03: Thank you. [00:54:08] Speaker 03: Okay. [00:54:08] Speaker 03: Thank you. [00:54:09] Speaker 03: Thank you all. [00:54:09] Speaker 03: The case is taken under submission. [00:54:12] Speaker 03: That concludes