[00:00:35] Speaker 03: OK, the next argued case is number 181293, United States Capitol Police against the Office of Compliance. [00:00:44] Speaker 03: Mr. Anderson. [00:00:50] Speaker 01: May it please the court, Rafique Anderson, for the petitioner, United States Capitol Police. [00:00:55] Speaker 01: It was impossible for the United States Capitol Police to commit an unfair labor practice for several reasons, the first [00:01:03] Speaker 01: Capitol Police Board termination decisions are not conditions of employment. [00:01:09] Speaker 01: The second reason is the Capitol Police Board termination decisions are not covered under the Congressional Accountability Act. [00:01:18] Speaker 01: And also, Capitol Police employees, including those of the union, are not given statutory rights to challenge a Capitol Police Board termination decision. [00:01:32] Speaker 01: The first piece of this is the special rule for terminations specifically provides for how Capitol Police Board termination decisions are to be governed. [00:01:46] Speaker 01: And because of that, those matters are not conditions of employment. [00:01:51] Speaker 01: Conditions of employment are the only things that an arbitrator is eligible to review. [00:02:00] Speaker 01: The second thing is [00:02:02] Speaker 01: The Capitol Police Board is not covered under the CAA at all in terms of its labor management provisions. [00:02:12] Speaker 01: So any Capitol Police termination decision is excluded from the labor management provisions of the CAA, which makes it ineligible for an arbitrator to review. [00:02:25] Speaker 01: Granting an arbitrator the right or the ability [00:02:30] Speaker 01: to look at a Capitol Police Board termination decision would usurp Congress's position that members of the Capitol Police, including those of the union, are not eligible to have their terminations reviewed. [00:02:47] Speaker 03: But it doesn't say so explicitly. [00:02:50] Speaker 03: Isn't that right? [00:02:52] Speaker 01: That is correct, Your Honor. [00:02:53] Speaker 01: And the position is it doesn't need to say so. [00:02:57] Speaker 01: And here's why. [00:02:59] Speaker 01: Capitol Police Board termination decisions are specifically provided for by the special rule on terminations. [00:03:06] Speaker 01: That is explicit. [00:03:07] Speaker 01: Two USC 1907 E1A and B talk about the chief who does the day-to-day operations under the A provision and the Capitol Police Board who's under the B provisions. [00:03:22] Speaker 01: And because of that, it specifically tells you exactly how Capitol Police employees [00:03:29] Speaker 01: are to be terminated in terms of the process. [00:03:32] Speaker 01: So it doesn't have to be something that's super explicit like that because of the actual effect of what happens. [00:03:41] Speaker 01: So beside the special rule and terminations, the second part of it is when Congress adopted 5 USC 7121, when they incorporated that into the Congressional Accountability Act, they understood that they were not giving [00:03:59] Speaker 01: Capitol Police employees, including those of the Union, the right to challenge their termination decisions. [00:04:07] Speaker 01: The way that we arrive at that is the courts of the D.C. [00:04:13] Speaker 01: Circuit, Seventh Circuit and Ninth Circuit had several cases where they talked about if you don't have the right to challenge a termination or serious matters of discipline by statute, [00:04:30] Speaker 01: then you don't get that right through the negotiated grievance process. [00:04:34] Speaker 01: And the reason why that makes sense. [00:04:36] Speaker 04: That's a follow on from the Fausto argument. [00:04:39] Speaker 01: It takes its lead from the Fausto argument, but it expands upon it even more. [00:04:44] Speaker 01: And here's why it makes sense, Your Honors. [00:04:47] Speaker 01: It's because commerce has to give you the right in order to challenge your termination. [00:04:54] Speaker 01: Throughout the executive service and throughout the legislative branch, [00:04:58] Speaker 01: There's plenty of instances when Congress says you may be able to challenge a termination or matter of serious dispute, and other times when they don't. [00:05:07] Speaker 04: Probably you, even the police board, has taken exceptions from arbitrators' awards up to the board. [00:05:13] Speaker 01: That is correct, Your Honor. [00:05:14] Speaker 04: And that's an avenue of your review. [00:05:17] Speaker 04: That's provided for by the concurrent resolution that adopted the regulations promulgated by the board pursuant to the authority given to them under the CAA to change the rules that would apply in the FLRA if they feel it's necessary. [00:05:34] Speaker 01: They do have that right, Your Honor. [00:05:36] Speaker 01: If the Office of Compliance feels as if something needs to be changed about the CAA, then they have the authority. [00:05:42] Speaker 04: So there is currently an avenue of review from an arbitrator's decision. [00:05:48] Speaker 01: We would disagree with that. [00:05:51] Speaker 04: I know you disagree, but you've actually used it. [00:05:53] Speaker 04: We have used it. [00:05:56] Speaker 04: And it exists as a result of a regulation [00:06:00] Speaker 04: promulgated by the board under clear statutory authority that says that exceptions can be taken to the board from arbitrator decisions in cases such as this. [00:06:15] Speaker 04: And like the case for Rickens case too, same thing. [00:06:18] Speaker 01: Well, the reason that we disagree with that position... I know you disagree, but your argument is that [00:06:25] Speaker 04: Part of your argument for getting to the regional circuit cases that are Fausto-based is there is no way to gain review of an arbitrator's decision in these circumstances. [00:06:35] Speaker 01: That is correct, Your Honor. [00:06:36] Speaker 04: And yet we know there is a way in which the Cavalpies themselves have afforded that relief. [00:06:42] Speaker 04: And the only thing you would have to make the argument that those regulations, that the authority existing under those regulations is against the law. [00:06:51] Speaker 01: That is correct. [00:06:52] Speaker 01: It is against the law. [00:06:53] Speaker 04: Well, you just say that, but you haven't said why. [00:06:55] Speaker 01: I'm going to get to that point. [00:06:59] Speaker 04: I just want to be clear. [00:07:00] Speaker 04: The arguments that we're hearing today are the arguments you heard last month in connection with Rickens, right? [00:07:05] Speaker 01: They're slightly different in that, in this case, we didn't go to arbitration at all. [00:07:09] Speaker 04: Oh, I understand. [00:07:10] Speaker 04: The fact setting is different, like in the case that was argued in September, which dealt with willingness to arbitrate. [00:07:16] Speaker 01: That is correct, Your Honor. [00:07:17] Speaker 04: But the arguments, the fundamental arguments, which are the Technical Corrections Act, the Regional Circuit Act, the FAFSA arguments are the same. [00:07:25] Speaker 04: They're the same, Your Honor. [00:07:26] Speaker 04: In all three cases. [00:07:28] Speaker 04: And this case had one additional argument, which is your argument that the Fraternal Orders claim that there was an unfair label practice was untimely filed. [00:07:42] Speaker 01: That was in the Rickin case. [00:07:44] Speaker 04: No, you have that in this case. [00:07:45] Speaker 01: untimely filed for the ULP. [00:07:49] Speaker 04: You don't have an untimely file. [00:07:50] Speaker 04: Okay, you don't have that in this case. [00:07:51] Speaker 01: That was the prior case. [00:07:53] Speaker 01: That was a slight difference there. [00:07:55] Speaker 01: But let me explain to you. [00:07:57] Speaker 04: There's a collateral estoppel issue in this case. [00:07:59] Speaker 01: That is correct, Your Honor. [00:08:00] Speaker 01: So the reason why is because 7122A prevents arbitrators from reviewing matters of serious discipline. [00:08:13] Speaker 01: That includes terminations. [00:08:15] Speaker 01: So because Congress adopted that, that is why arbitrator decisions can't be reviewed. [00:08:22] Speaker 01: Because in the Fausto case and then in the follow-on cases, the thing that they were concerned about was uniformity, right? [00:08:31] Speaker 01: You didn't want to give rights to people who Congress didn't want to give them to. [00:08:36] Speaker 04: So uniformity went in the context of the CSRA. [00:08:39] Speaker 04: That is correct, but the number one thing... The argument here is that fundamentally, when Congress was 78, when Congress revised the civil service system, got rid of the old civil service commission, created the MSPB, and then they create for the executive branch a series of rights. [00:08:56] Speaker 01: That is correct. [00:08:57] Speaker 04: And not all people are treated equally under the CSRA. [00:08:59] Speaker 01: That is correct. [00:09:00] Speaker 04: Some people don't get the same quality of rights. [00:09:04] Speaker 01: That is correct. [00:09:05] Speaker 04: And so what happened after that act was passed, some people who got second-class rights tried to regain the full rights by going to court of claims. [00:09:14] Speaker 04: That was what Fausta was all about. [00:09:16] Speaker 04: Correct. [00:09:16] Speaker 04: And the argument was, well, you can't end run what Congress created this construct that deals with the executive branch, and you can't change that construct. [00:09:27] Speaker 01: That's correct. [00:09:28] Speaker 04: Now, along comes a few years later, and Congress says, oh, guess what? [00:09:32] Speaker 04: We forgot to take care of our own employees. [00:09:35] Speaker 04: So we should have a CSRA for Congress. [00:09:40] Speaker 01: That is correct. [00:09:40] Speaker 04: So then that first CAA. [00:09:42] Speaker 01: That is correct. [00:09:43] Speaker 04: Then they said, well, it shouldn't be like the CSRA, which basically covers almost every right under the sun. [00:09:49] Speaker 04: There should only be maybe nine categories of rights that congressional employees have. [00:09:55] Speaker 01: Except there's a few, such as the Government Accountability Office. [00:09:59] Speaker 01: They actually have the right. [00:10:00] Speaker 04: That's right. [00:10:01] Speaker 04: So it was a unique creation for Congress. [00:10:05] Speaker 01: Correct. [00:10:06] Speaker 04: That is correct. [00:10:07] Speaker 04: And in the unique creation for Congress, they said, well, we should take the federal labor law that replies in other agencies that allows government employees to unionize to do the same thing here. [00:10:19] Speaker 01: That is correct to unionize, but not to challenge terminations. [00:10:23] Speaker 04: Well, that's the question. [00:10:25] Speaker 01: And so this is how we get there, right? [00:10:27] Speaker 01: So you look at what was happening in 1995. [00:10:30] Speaker 04: But all I'm saying is that I'm not certain in my mind that Fausto teaches you much about what Congress had in mind for itself. [00:10:38] Speaker 01: Well, what you need to look at is that legislative history piece, right? [00:10:41] Speaker 01: So they took testimony from the GAO, which had statutory appeals rights. [00:10:46] Speaker 01: And they said, we don't want to lose those. [00:10:49] Speaker 01: They also took testimony from the LOC, which did not have [00:10:54] Speaker 01: those rights and they said, we don't want them. [00:10:57] Speaker 01: And so when they made the CAA, it's clear that statutory appeals rights weren't included at all. [00:11:05] Speaker 01: That was not something that they considered. [00:11:07] Speaker 01: And here's how Fausto, not necessarily Fausto, but the other circuit cases play in. [00:11:14] Speaker 01: That law is still good law, right? [00:11:16] Speaker 01: So if in fact you were to give an arbitrator an opportunity, [00:11:21] Speaker 01: to review matters of serious discipline, you'd have the same problem you had in those DC Seventh and Ninth Circuit problems. [00:11:29] Speaker 01: You'd have an inverted preference where the employees of the GAO would actually get less rights because they have to follow a uniform body of law and case precedent, which ultimately ends up here, whereas an arbitrator can med out justice in just any way that they fashion. [00:11:47] Speaker 01: You also have the [00:11:49] Speaker 01: inverted preference where people who are given statutory rights, or not included to give statutory rights, are foreclosed, but members of the United States Capitol Police, the union, is actually given rights, right? [00:12:05] Speaker 01: Then we have the issue of an arbitrator, again, making the final decision on whether a Capitol Police officer is fit to protect Congress. [00:12:15] Speaker 01: You see, right now, Congress [00:12:18] Speaker 01: since 1875, has always had the exclusive ability to determine who's going to protect them. [00:12:25] Speaker 01: That has not changed. [00:12:28] Speaker 04: They trust that the sergeant-at-arms for the House, the sergeant-at-arms for the Senate... Before the CIA, there wasn't a procedure pursuant to which exceptions to the arbitrators' award could be taken to the board. [00:12:40] Speaker 01: But that is not... The arbitrators' exceptions is not grounded in law. [00:12:45] Speaker 01: 5 U.S.C. [00:12:46] Speaker 01: 7122 [00:12:47] Speaker 01: right, which Congress adopted, prevents arbitrator decisions concerning matters of serious discipline to be appealed. [00:12:56] Speaker 01: What you have here is simply an arbitrator's decision with no review. [00:13:02] Speaker 01: And it's important to remember that a resolution is not signed by the president, right? [00:13:07] Speaker 01: This isn't something that is a law. [00:13:08] Speaker 04: It's a regulation. [00:13:09] Speaker 01: It's just a regulation. [00:13:10] Speaker 04: A regulation has the force of law. [00:13:13] Speaker 01: unless it is first superseded by the CAA. [00:13:16] Speaker 01: The CAA doesn't talk about anything about arbitrator review at all. [00:13:21] Speaker 01: And this case is about, as we talked about in the previous case. [00:13:25] Speaker 04: The presiding judge pointed out when you began your argument that it wasn't this as you sort of have to piece this together in all its face. [00:13:34] Speaker 04: If the statute has any room for ambiguity on the question, then the regulation, if it were a reasonable regulation, would suffice? [00:13:44] Speaker 01: That is correct. [00:13:45] Speaker 01: But the key here is Congress adopted 7122A in Hope. [00:13:51] Speaker 01: There's other instances from 7123 up through 7131. [00:13:55] Speaker 01: They didn't adopt those, right? [00:13:58] Speaker 01: And from 7132 to 35, they didn't adopt those. [00:14:01] Speaker 01: They didn't make any changes other than those changes. [00:14:04] Speaker 01: So when they adopted 7121 and they adopted 7122, it's clear that they accepted all of the judicial interpretations of that. [00:14:15] Speaker 01: And that is the cases that we're talking about. [00:14:18] Speaker 01: So the important thing here is, [00:14:22] Speaker 01: that if you don't get the statutory right, you can't do it in the negotiated grievance process, because again, it would usurp what Congress was trying to do. [00:14:31] Speaker 01: Congress was trying to create different classes of employees, and having an arbitrator make those decisions without review, because we say 7122A prevents any review. [00:14:43] Speaker 01: That is not what Congress wants. [00:14:46] Speaker 01: Congress wants the Capitol Police Board, as I said, [00:14:49] Speaker 01: with the sergeant at arms in both houses and the architect of the Capitol to be the ones to decide who is going to protect them. [00:14:58] Speaker 01: And that's upon a recommendation of the Capitol police chief who does the day-to-day operations and knows exactly who should and should not be part of the Capitol police. [00:15:12] Speaker 01: So that's what's important here for us to remember is that there's three reasons why [00:15:18] Speaker 01: Employees of the Capitol Police, including those of the Union, cannot challenge terminations. [00:15:23] Speaker 01: The first two are grounded in the special rule on terminations. [00:15:27] Speaker 01: The second one is because Congress never gave them the right to challenge a termination. [00:15:34] Speaker 01: If there are no further questions? [00:15:36] Speaker 03: We'll save you some rebuttal time, and let's hear from the other side. [00:15:40] Speaker 01: Thank you. [00:15:42] Speaker 03: Let's see. [00:15:44] Speaker 03: You are splitting your time. [00:15:45] Speaker 03: Who is going first? [00:15:48] Speaker 03: OK. [00:15:50] Speaker 03: OK, Mr. Ullman. [00:15:57] Speaker 02: May it please the court, I'm John Ullman, representing the Office of Compliance. [00:16:01] Speaker 02: As the court is aware, the Capitol Police have posed these same questions in two other cases, and one of which is before the same panel. [00:16:10] Speaker 02: And I think the big question here is not [00:16:15] Speaker 02: The questions are posed. [00:16:16] Speaker 02: The big question is whether you should consider these questions in this appeal. [00:16:21] Speaker 02: And I would suggest to you that really what their claim is here is that they should not have to arbitrate cases if they have an arbitrability issue. [00:16:32] Speaker 02: That's basically what their position is. [00:16:34] Speaker 02: And the law in this area has been settled for a long time. [00:16:37] Speaker 02: And it goes back to the Steelworker Trilogy in 1960, where the Supreme Court sets forth what is the role [00:16:44] Speaker 02: of the federal judiciary when it comes to collective bargaining, where there is a negotiated grievance procedure that provides for arbitration. [00:16:55] Speaker 02: And the answer to that question is that there is no role for the federal government. [00:16:59] Speaker 02: The answer is that those questions go back to the arbitrator. [00:17:03] Speaker 02: And that's not only the law that the case law has set down, but that's the law that's set forth in the Federal Service Labor Management Relations Act, which requires [00:17:13] Speaker 02: that the union and the agency agree on a procedure for arbitrability. [00:17:18] Speaker 02: And it's also, I think, the law in their contract. [00:17:22] Speaker 02: The contract very clearly specifies, the collective bargaining agreement says, that if there are questions of arbitrability, they go to the arbitrator. [00:17:32] Speaker 04: Which they did here in all these cases. [00:17:35] Speaker 02: Well, they did not quote it. [00:17:36] Speaker 04: Not in this case. [00:17:37] Speaker 04: Well, this case never got to the arbitration. [00:17:39] Speaker 02: Exactly. [00:17:40] Speaker 02: The unfair labor practice is the refusal to arbitrate or to obstruct the arbitration process. [00:17:45] Speaker 04: But Mr. Anderson's argument is we didn't have any obligation to agree to hire, because there's no jurisdiction. [00:17:54] Speaker 02: That's an arbitrarily question that goes to the arbitrator. [00:17:57] Speaker 02: I mean, since 1982, [00:18:01] Speaker 02: The FLRA has decided that it's an unfair labor practice. [00:18:07] Speaker 04: So where is that argument taking you? [00:18:09] Speaker 04: That we shouldn't be entertaining this appeal. [00:18:12] Speaker 04: We should send it back and say, I thought the parties did agree to start to go to the arbitrator in this case. [00:18:21] Speaker 02: The argument is it's an unfair labor practice. [00:18:25] Speaker 02: If at the time that they decided not to go to the arbitrator, [00:18:28] Speaker 02: that it was not clearly established law, that they didn't have to arbitrate it. [00:18:35] Speaker 02: I mean, the FLRA, they first created the unfair labor practice of refusal to arbitrate in 1982. [00:18:43] Speaker 02: And during those 36 years, they've created only one narrow exception. [00:18:48] Speaker 02: And that is the exception for probationary employees. [00:18:51] Speaker 02: That is, if a union requests arbitration for a probationary employee, [00:18:57] Speaker 02: that they can refuse to arbitrate that question. [00:19:01] Speaker 02: And that would not be an unfair labor practice. [00:19:03] Speaker 04: Well, you're saying, basically, we should hold it because they had no clearly established right not to go to arbitration. [00:19:11] Speaker 04: They had a duty to go. [00:19:12] Speaker 04: And therefore, it was not a labor practice. [00:19:14] Speaker 04: And we don't need to reach the merits of this debate at all. [00:19:16] Speaker 02: Exactly. [00:19:17] Speaker 04: Is that argument in your brief? [00:19:18] Speaker 02: Yes, it is. [00:19:20] Speaker 02: I mean, it's the whole clearly established law argument. [00:19:23] Speaker 02: And that was the basis for the board's decision. [00:19:26] Speaker 02: that the Capitol Police have failed to show that it was clearly established law at the time they refused to arbitrate, that they did not have the right to arbitrate this particular issue. [00:19:40] Speaker 02: And that exception has to be very narrow, because if it's very broad, the exception will swallow the rule. [00:19:47] Speaker 02: The rule is you go to the arbitrator. [00:19:49] Speaker 02: You have issues like this. [00:19:50] Speaker 02: you go to the arbitrator and let the arbitrator decide. [00:19:53] Speaker 02: It's really premature for the court to decide those questions if, in this case, we had not gone to the arbitrator. [00:20:01] Speaker 02: And if you read their brief, they really have not explained to you why you should address these questions. [00:20:06] Speaker 02: They've totally ignored the big question is, which is, why should you decide those issues in this case, particularly when you have the same issues pending before two other panels, including this panel? [00:20:19] Speaker 02: So there really is no reason to decide those questions in this case. [00:20:24] Speaker 02: And again, if you go back to the steel worker trilogy, the idea is that requiring arbitration in a collective bargaining agreement is designed to create kind of a system of self-government between these two parties, allowing them to resolve their issues. [00:20:42] Speaker 02: And the negotiated grievance process is very much a part of the collective bargaining process. [00:20:47] Speaker 02: I mean, so that throughout the negotiating grievance process, they have the ability to resolve this dispute between the two of them. [00:20:54] Speaker 02: And if they cannot, they go to binding arbitration before an arbitrator. [00:20:58] Speaker 02: In fact, in the Steelworker Trilogy, the court recognized that in many cases, an arbitrator is going to be in a better position to decide these issues than a judge or a court, because the two of them decide who the arbitrator is going to be. [00:21:13] Speaker 02: And ideally, they're going to pick somebody who's going to be a specialist in the area that can resolve these issues. [00:21:19] Speaker 02: And so this is their own method of self-government, that this is what this unfair labor practice is designed to enforce. [00:21:26] Speaker 02: I mean, the one exception in this statute is that unlike under the National Labor Relations Act, where a party can go to the court and get the court to order them to go to arbitration, the only way to raise this issue is through the unfair labor practice procedure. [00:21:40] Speaker 02: So the union's only choice at that point is to say, [00:21:43] Speaker 02: hey, this isn't fair. [00:21:45] Speaker 02: They're not using the arbitration process that we agreed to in the contract, which is required by law, which is required by the case law. [00:21:54] Speaker 02: And instead, they're engaging in an unfair labor practice. [00:21:57] Speaker 02: And they need to be ordered to go to arbitration. [00:22:01] Speaker 02: So I think, quite simply, that is the position of the Office of Compliance on this. [00:22:08] Speaker 02: Unless anyone has any questions. [00:22:10] Speaker 04: But if we reach the issue on the merits, then you're in the same position you were in the two preceding cases that were here. [00:22:16] Speaker 02: Well, if you reach the... I think it's still an unfair labor practice because at the time that they made the decision... We would be saying that they were unjustified in refusing to go. [00:22:27] Speaker 02: They're unjustified, even if the law changes at some point after they committed that thing. [00:22:32] Speaker 04: Well, their supposed justification for not proceeding any further than they did arbitration in this case was that there was no jurisdiction in the arbitrator, therefore we don't have to go. [00:22:44] Speaker 04: That's the same argument in both of the two preceding capital police cases, all the statutes. [00:22:49] Speaker 02: Absolutely. [00:22:50] Speaker 02: But that's an arbitrability question that goes to the arbitrator first. [00:22:54] Speaker 02: And in the other cases, at least the other unfair labor practice, it had gone through. [00:22:58] Speaker 04: Well, yes. [00:22:59] Speaker 04: In the last month's case, it had gone through. [00:23:02] Speaker 04: And the arbitration did go to the arbitrator. [00:23:03] Speaker 02: Right. [00:23:03] Speaker 02: And the other case was a negotiability case. [00:23:05] Speaker 04: And so it simply went right up to the board. [00:23:08] Speaker 02: Right. [00:23:08] Speaker 02: In which they're arguing whether you can have that provision in a new contract, whether you can have a provision regarding arbitration. [00:23:14] Speaker 04: And the first case was talking about amending the existing contract that's involved in these other two cases. [00:23:21] Speaker 02: Well, it's about a successor agreement. [00:23:24] Speaker 02: So the contract that they're under now has expired. [00:23:27] Speaker 02: And so they're negotiating a new contract. [00:23:28] Speaker 02: And so the Capitol Police have proposed to eliminate the provisions that have provided for arbitration. [00:23:36] Speaker 04: Is that the contract that was in place in Rickens? [00:23:38] Speaker 02: Yes. [00:23:39] Speaker 02: The prior contract was. [00:23:41] Speaker 04: Well, that contract is also the one that's in this case. [00:23:44] Speaker 02: Correct. [00:23:45] Speaker 04: But it's expired. [00:23:46] Speaker 02: Right. [00:23:47] Speaker 04: And then they're negotiating over the next one, which was this September. [00:23:50] Speaker 02: Right. [00:23:50] Speaker 02: And as long as they're still, you know, even though it's expired, they're still operating under it. [00:23:55] Speaker 02: They still must operate under it. [00:23:56] Speaker 02: So the unfair labor practice is not true. [00:23:58] Speaker 02: So this is the existing contract. [00:24:00] Speaker 02: And that clearly provides for arbitration determinations. [00:24:03] Speaker 02: And in fact, I think they've always had, as long as they've had a contract, they've always had arbitration determinations going back. [00:24:08] Speaker 02: 18 years. [00:24:09] Speaker 02: So this is a sudden revelation that they can't do it. [00:24:15] Speaker 03: OK. [00:24:18] Speaker 03: All right. [00:24:19] Speaker 03: Then let's hear from Ms. [00:24:20] Speaker 03: Michak. [00:24:30] Speaker 00: Thank you. [00:24:31] Speaker 00: May it please the court, my name is Megan Michak on behalf of the FOP. [00:24:36] Speaker 00: Without belaboring the point, there is a clear unfair labor practice here. [00:24:40] Speaker 00: The only exception that would allow for the department, the USCP, to refuse to participate in arbitration is if there was a clearly defined law that would allow such a thing. [00:24:50] Speaker 00: As you have just pointed out, Your Honors, there are two other cases pending. [00:24:55] Speaker 00: There is no scenario under which the department can argue that they have to be before this court [00:25:00] Speaker 00: arguing about the law and that also it is a clearly defined law. [00:25:03] Speaker 00: So we believe that as the Office of Compliance does that there is a clear unfair labor practice here and that it is not necessary to reach the merits of the case because the department committed the unfair labor practice [00:25:17] Speaker 00: by initially refusing to select an arbitrator who would issue the decision deciding the jurisdictional question of whether the arguments that the Capitol Police raises. [00:25:28] Speaker 04: What my recollection was that although there was an initial refusal to move towards arbitration in any respect at all, there was then an agreement by the police to at least go to arbitration for arbitrability. [00:25:45] Speaker 00: Your Honor, after the Labor Committee had filed its unfair labor practice, then the Department did in fact agree to go to arbitration on both the arbitrability question and on the merits. [00:25:57] Speaker 00: They did not prevail on the arbitrability before the arbitrator. [00:26:01] Speaker 00: The Labor Committee prevailed on both the arbitrability and the merits, and that matter actually was decided by the Office of Compliance Board of Directors on the Department's exceptions as well. [00:26:12] Speaker 04: And what's happened to that? [00:26:14] Speaker 04: Is there an appeal going to come? [00:26:15] Speaker 00: There is no appeal of the Office of Compliance Board of Directors for an arbitration decision. [00:26:22] Speaker 00: So we're in a very similar posture to the case you heard last month of Officer Andrew Ricken, meaning we are processing. [00:26:29] Speaker 04: I'm just trying to get clear, because there was a mootness argument here in this case earlier, right? [00:26:33] Speaker 00: Yes. [00:26:34] Speaker 04: So what you're telling me is that in this particular case, the dispute has gone to arbitration. [00:26:41] Speaker 00: Yes, Your Honor, it has. [00:26:43] Speaker 04: And that arbitrability has been decided, which is what the police were supposed to do. [00:26:47] Speaker 00: Yes. [00:26:49] Speaker 00: However, the Office of Compliance Board of Directors has taken the position that this is not moot because it is a question that the department, it is a issue that the department could refuse to go to arbitration in the future as it did here because it did not agree to go to arbitration until after the union filed its unfair labor practice. [00:27:10] Speaker 00: which delayed the process for Officer Donaldson by quite a few months. [00:27:16] Speaker 00: And for that, on that basis, the Office of Compliance Board of Directors concluded that the issue was not moved. [00:27:21] Speaker 00: Right. [00:27:21] Speaker 04: And there's no, and there isn't now, the mootness issue wasn't appealed to us. [00:27:26] Speaker 04: It was discussed at the board level. [00:27:28] Speaker 00: I believe it was discussed at the board meeting. [00:27:31] Speaker 04: But we have an obligation to decide whether or not something is moot, because if it's moot, there's no controversy. [00:27:34] Speaker 00: Of course. [00:27:35] Speaker 00: But again, here, where this could happen again at any time, the union elects to take a termination matter to arbitration, we believe the Office of Compliance Board of Directors properly concluded that it was not moot, so that we don't have to come before you on each and every case, frankly. [00:27:55] Speaker 00: Once this court issues its decision, then we will not have to proceed here again. [00:28:02] Speaker 00: With respect, very briefly, to the policy arguments that the department raised. [00:28:08] Speaker 00: Specifically, the department has raised some arguments that it should be up to the United States Capitol Police Chief alone to decide who is fit for duty. [00:28:20] Speaker 00: Unlike other federal sector employees, [00:28:23] Speaker 00: For example, DEA agents, ICE agents, they are also law enforcement officers, and yet they have to go through the process. [00:28:31] Speaker 00: They can go through the grievance process, through an arbitrator process. [00:28:36] Speaker 00: The arguments that some of the employees within the legislative branch might have more rights than other employees, those are policy arguments that are properly decided by Congress. [00:28:47] Speaker 00: They are not properly decided by the court. [00:28:49] Speaker 00: If the department believes that these things are unfair, they should take that to Congress rather than asking this court to gut the employees' rights. [00:28:59] Speaker 00: What Congress did not do in this case [00:29:02] Speaker 00: is did not get those employees' rights. [00:29:04] Speaker 00: Congress, when it enacted the Congressional Accountability Act, had the entire history of Fausto and its progeny before it, and they elected not to clearly take those employees out of the personnel system that they were setting up, which they could have done. [00:29:19] Speaker 00: The failure to do that indicates that, unlike the employees in Fausto, that first prong that Fausto sets out [00:29:26] Speaker 00: that the employees have to be accepted from the personnel system just simply does not exist here. [00:29:33] Speaker 00: And I see that my time is up, so if there are no further questions. [00:29:36] Speaker 03: Okay, anything urgent else that you need to tell us? [00:29:38] Speaker 00: No, thank you, ma'am. [00:29:39] Speaker 03: Okay, thank you. [00:29:42] Speaker 03: Mr. Anderson. [00:29:48] Speaker 01: Thank you, Your Honor. [00:29:49] Speaker 01: This isn't a difficult matter. [00:29:53] Speaker 01: special rule on terminations is specifically provided for by Congress decided exactly how it wanted it to be. [00:29:59] Speaker 04: What's the specific, clearly established right that told you you didn't have to go to arbitration here? [00:30:06] Speaker 01: The specific right is the special rule. [00:30:08] Speaker 01: So the first part of it is the chief... Where has that been established? [00:30:13] Speaker 01: It's been established by its own separate legislation, special rule for terminations. [00:30:17] Speaker 01: And it has the part A and the part B where... That's an argument. [00:30:20] Speaker 01: No, Your Honor. [00:30:22] Speaker 04: That's an argument as to why you don't have to go to arbitration. [00:30:25] Speaker 01: But what's specifically established, clearly established as enforced during schools versus FLRA, or clearly established as used? [00:30:33] Speaker 04: What's subject to interpretation? [00:30:35] Speaker 01: I would disagree with that, Your Honor, because. [00:30:37] Speaker 04: What's subject to interpretation is in front of it. [00:30:39] Speaker 04: The scope of that technical corrections act is in front of this court right now. [00:30:45] Speaker 04: How can it be clearly established that your view of the Technical Corrections Act is the correct one? [00:30:52] Speaker 01: The reason why is not just not the TCA all of itself. [00:30:55] Speaker 01: We're talking about the special rule that specifically says for these matters, this is how Congress wants it to be. [00:31:03] Speaker 04: The special rule is where? [00:31:04] Speaker 01: Where do you find this? [00:31:06] Speaker 01: 2 USC 1907 E1 A and B. What? [00:31:09] Speaker 01: 2 USC 1907 E1 A and B. [00:31:14] Speaker 01: one, A, and B. It tells you exactly how Capitol Police Board termination decisions happen, how you get terminated as an employee from the Capitol Police. [00:31:29] Speaker 01: It's specific. [00:31:30] Speaker 01: So when you hear an argument about it doesn't specifically say, all you have to do is go to the text and read it. [00:31:36] Speaker 01: The first part is A. [00:31:38] Speaker 01: It says the chief, amongst other authorities, has the ability to discharge, subject to applicable law and regulation. [00:31:45] Speaker 01: You move to Part B, and in Part B, it says that the chief has to recommend it to the Capitol Police Board, which can do one of three things. [00:31:55] Speaker 01: It can deny, it can approve, or it can just wait 30 days in which it's approved. [00:32:01] Speaker 04: And Judge... Your basis for not knowing the arbitration is that there's no jurisdiction in the arbitration. [00:32:07] Speaker 01: Absolutely, Ron. [00:32:08] Speaker 04: And that issue is subjudicat. [00:32:11] Speaker 01: Exactly. [00:32:12] Speaker 01: That is why arbitrators only have authority over conditions of employment. [00:32:18] Speaker 01: As I said when I was up here the first time, there's two reasons why they don't. [00:32:23] Speaker 01: The first one is that it's the special rule. [00:32:26] Speaker 01: The second thing is, and you won't hear the Office of Compliance Board of Directors answer this for you, why did Congress move the Capitol Police Board outside of the CAA? [00:32:36] Speaker 01: Remember, before the Technical Corrections Act, the committees of Congress had the ability to issue final termination decisions. [00:32:44] Speaker 01: So this isn't something that's new. [00:32:47] Speaker 01: So that is why it's specifically provided for by. [00:32:51] Speaker 01: The second thing you hear is there was reference to the National Labor Relations Act or something to that effect. [00:32:58] Speaker 04: Specifically provided for is under a different statute, a different argument than no established law to avoid going to arbitration. [00:33:04] Speaker 01: The different, they're actually the same. [00:33:07] Speaker 01: Here's the slight difference. [00:33:09] Speaker 01: Well, clearly established law was established by the FLRA. [00:33:12] Speaker 01: As you see here in the legislative branch, we're not under the FLRA. [00:33:16] Speaker 04: They took... You're shifting the P under the shells. [00:33:21] Speaker 01: So you're asking about clearly established law? [00:33:24] Speaker 04: No, when you say, you say, we didn't need to go to arbitration. [00:33:28] Speaker 04: We didn't need to arbitrate arbitrability here. [00:33:31] Speaker 01: That is correct. [00:33:32] Speaker 04: Because it's perfectly clear that there was no jurisdiction in the arbitrator. [00:33:36] Speaker 01: That is the first phase of the argument. [00:33:39] Speaker 01: The second one is they don't have statutory rights at all. [00:33:42] Speaker 04: The DEA- I understand that statutory rights to appeal is the officer who gets sanctioned. [00:33:50] Speaker 04: Yeah, but what's important about this is that for matters- You're confusing me by moving the P under different shells. [00:33:58] Speaker 04: So the compliance board has made an argument here, and they made it in their brief, directly in their brief, and said, in order for you, it's an unfair labor practice to refuse to go to arbitration unless you have a clearly established right not to say you don't have to go. [00:34:18] Speaker 04: That is correct. [00:34:19] Speaker 04: And your reply brief doesn't directly address that argument. [00:34:25] Speaker 01: It's in the opening brief, Your Honor. [00:34:28] Speaker 01: as well as in the reply we talk about. [00:34:31] Speaker 04: Your argument is basically, as I understand, the same argument you're making as to why there was no jurisdiction in the arbitrator. [00:34:38] Speaker 01: That is correct, Your Honor. [00:34:40] Speaker 04: And because there was no jurisdiction in the arbitrator, that was clearly established. [00:34:46] Speaker 04: And yet, how can you say it's clearly established when it's subjudicated at the moment? [00:34:51] Speaker 04: What happens if you lose? [00:34:53] Speaker 01: If we lose? [00:34:54] Speaker 04: If you lose in the three cases that you have in front of us here, including this case. [00:34:59] Speaker 01: Then what you will end up having is an arbitrator make a decision. [00:35:02] Speaker 04: I know what the arbitrator is going to do, but what will it do to your right to refuse to go to arbitration? [00:35:07] Speaker 01: We'll have to evaluate it at that point. [00:35:09] Speaker 04: Then you'll have a clear rule that tells you you have to go. [00:35:13] Speaker 01: At that point, yes. [00:35:14] Speaker 01: And then the members of Congress will not be able to decide. [00:35:18] Speaker 04: I understand what may happen. [00:35:20] Speaker 04: All I'm trying to do is to get my hands around [00:35:23] Speaker 04: the argument that the compliance board is making that we don't need to get into the TCA and the Festo and the regional circuit arguments now, because you aren't able to point to a clearly established right to refuse to go to arbitration. [00:35:40] Speaker 04: But here- When the statute clearly says arbitrability has to be decided by the arbitrator. [00:35:47] Speaker 01: That is correct. [00:35:47] Speaker 01: But there's, like I said, I don't want to simply just focus on the special rule. [00:35:51] Speaker 01: I'm not saying it's not important. [00:35:53] Speaker 01: What I'm saying is that they also haven't addressed the other piece. [00:35:58] Speaker 01: But the special rule is specific. [00:36:01] Speaker 01: But unlike DEA agents and things of that sort, they have statutory rights to appeal. [00:36:08] Speaker 01: And Capitol Police employees, especially those of the union, do not have those rights. [00:36:13] Speaker 01: So that's what you're going to notice. [00:36:14] Speaker 01: There's a difference between the two of those. [00:36:17] Speaker 01: And that Congress actually instituted the policy [00:36:20] Speaker 01: They created the CAA with the intent not to give Capitol Police employees, especially those of the union, no rights to challenge determination. [00:36:31] Speaker 01: So it's not that we should go back to Congress and seek a repair. [00:36:35] Speaker 01: Congress has already said exactly how they want this to go. [00:36:39] Speaker 01: And with the special rule, now going back to the special rule, they wanted to make clear that these matters, [00:36:49] Speaker 01: dealing with terminations, are not to be covered under the CAA, period. [00:36:55] Speaker 01: That is why they removed the board. [00:36:58] Speaker 01: That is why there's no right to challenge Capitol Police Board termination decisions, nor has there ever been. [00:37:05] Speaker 01: So I don't want to leave the court with thinking... They removed the board. [00:37:08] Speaker 01: They removed the board in the TCA. [00:37:11] Speaker 01: So let me explain it. [00:37:13] Speaker 04: What, you're going to talk about the Technical Rights Act? [00:37:15] Speaker 01: Correct. [00:37:15] Speaker 04: So the Capitol... The Technical Rights Act makes the final decision at the board. [00:37:19] Speaker 04: They removed the board. [00:37:20] Speaker 01: And the board used to be a part of the congressional, it used to be covered by the Congressional Accountability Act. [00:37:26] Speaker 01: And so in 2010, they actually removed the board from under the CAA. [00:37:31] Speaker 01: But what I want you to make sure you remember is that the line of authority for who can terminate Capitol Police employees has never changed. [00:37:41] Speaker 01: So this isn't something novel, is what I'm saying. [00:37:43] Speaker 01: This isn't something new that we're asking this court to review. [00:37:47] Speaker 01: It's never been the case. [00:37:48] Speaker 04: Yeah, instead of the police chief going to the Capitol Police Board, they went to somebody else in the old days. [00:37:53] Speaker 01: Correct. [00:37:53] Speaker 04: I can't remember who it was. [00:37:54] Speaker 04: It was three or four people. [00:37:56] Speaker 01: It was two committees, one on the House side. [00:37:58] Speaker 04: I remember the House committee. [00:38:00] Speaker 01: Right, because they've always had that ability to do so. [00:38:03] Speaker 04: They knew even less about who should be removed than arbitrary. [00:38:07] Speaker 01: I wouldn't agree with that. [00:38:08] Speaker 01: They absolutely knew who they wanted to be removed. [00:38:11] Speaker 01: Because, again, it's Congress's police force. [00:38:14] Speaker 04: The architect of the Capitol knows more about policing than the chief of police. [00:38:19] Speaker 01: I would say this, Your Honor. [00:38:21] Speaker 04: You have to agree that it is a strange statute. [00:38:25] Speaker 01: Not strange, it's unique. [00:38:28] Speaker 01: It's unique, but I would suggest this, Your Honor, that the architect of the Capitol knows more about policing than an arbitrator who doesn't have a law degree. [00:38:36] Speaker 01: That's any [00:38:37] Speaker 01: Johnny or Jane off the street making a decision. [00:38:40] Speaker 04: Does the Capitol have a law degree? [00:38:42] Speaker 01: They have experience in policing the top, the most important target in the world, right? [00:38:50] Speaker 01: So arbitrators, as you well know, I'm not saying anything you don't know, oftentimes they have no law degrees at all and they have no idea about the CAA or anything related to that. [00:39:00] Speaker 01: And they are in the position to reinstate someone back to the Capitol police. [00:39:06] Speaker 01: That is not what Congress intended. [00:39:07] Speaker 01: And I just want to leave you with one more thing. [00:39:09] Speaker 01: Congress specifically adopted 7122A, which prevents any review. [00:39:15] Speaker 01: This was going back to an arbitrator's review. [00:39:18] Speaker 01: Prevents any review of termination matters. [00:39:21] Speaker 01: Congress didn't change it. [00:39:23] Speaker 01: They didn't amend it. [00:39:24] Speaker 01: They didn't do anything. [00:39:25] Speaker 01: So I would suggest here, again, that yes, the Capitol Police went to arbitration just pro forma, just to go. [00:39:35] Speaker 01: But it doesn't mean that the Capitol Police waived its rights to say that the arbitrator does not have statutory jurisdiction over Capitol Police Board matters. [00:39:47] Speaker 01: So simply because we went doesn't mean that we gave up the position that we're arguing today. [00:39:53] Speaker 01: If there are no further questions, Your Honor. [00:39:55] Speaker 03: Well, your very last point. [00:39:59] Speaker 03: Sure. [00:39:59] Speaker 03: If I were to agree that they could refuse to arbitrate, OK. [00:40:03] Speaker 03: But when they do agree to arbitrate, you're saying they're not bound. [00:40:09] Speaker 01: Correct, Your Honor. [00:40:09] Speaker 01: What we're saying is we go through the system. [00:40:13] Speaker 01: The system hasn't changed until this point. [00:40:15] Speaker 03: If the arbitrator comes out with what you wanted to do in the first place, OK. [00:40:19] Speaker 03: Otherwise, we aren't going to pay any attention to it. [00:40:22] Speaker 01: I wouldn't agree with that, Your Honor, because the rules are in place as of today as to how [00:40:28] Speaker 01: arbitrations that I guess they have exceptions, right? [00:40:31] Speaker 01: Yes. [00:40:31] Speaker 01: We don't believe that that's the right rule, but the chief does not want to not follow the existing rules that are in place. [00:40:40] Speaker 01: Our argument is that those rules are incorrect. [00:40:44] Speaker 01: We won't be able to make that final determination until this court actually comes out with a rule that's favorable for us. [00:40:52] Speaker 01: So it's not that we're saying, oh, we went, oh, we lost, oh, we're going to now try to go to the ULP process. [00:40:59] Speaker 04: Well, in Rickens, you went to arbitration. [00:41:01] Speaker 01: We did. [00:41:03] Speaker 01: So we're going to follow the rules as the rules are currently laid out, but it doesn't mean that we agree with those rules. [00:41:09] Speaker 01: That's what I'm trying to convey to you. [00:41:11] Speaker 04: You're going to continue to raise your jurisdictional arguments until you are foreclosed, until [00:41:17] Speaker 04: and unless you're foreclosed. [00:41:19] Speaker 01: That is correct. [00:41:20] Speaker 04: So if this court... Whether it's to negotiate over the subject of terminations. [00:41:28] Speaker 01: That is correct. [00:41:29] Speaker 04: Like in the September case. [00:41:30] Speaker 04: That is correct. [00:41:31] Speaker 04: Or whether it's a case in which somebody was actually terminated and got themselves to arbitration or whether it's somebody who was disciplined and wants to get to arbitration, you're going to fight it tooth and nail until you're told you can't do it anymore. [00:41:45] Speaker 01: And that is correct. [00:41:47] Speaker 01: We're going to always maintain our ability to challenge under the statute, right? [00:41:52] Speaker 01: But there are current rules in place, and the chief does not want to not follow those rules, but it doesn't mean that he agrees with the rules. [00:42:00] Speaker 01: What he agrees with is that those rules don't apply. [00:42:03] Speaker 01: But you can't get to that place until we're before. [00:42:06] Speaker 04: It's like in any district court in which you want to challenge jurisdiction. [00:42:09] Speaker 04: You submit the jurisdiction for purposes of challenging it. [00:42:12] Speaker 01: Exactly. [00:42:13] Speaker 01: Because we believe that the Office of Compliance is acting ultra-virously when they're actually hearing exceptions because Congress adopted 5 USC 7122, which prevents any exceptions over matters dealing with terminations. [00:42:28] Speaker 01: But it doesn't mean that since they're acting ultra-virously, [00:42:32] Speaker 01: that we don't go in that direction, right? [00:42:35] Speaker 01: Our ultimate response and request is for this court to find that those rules are incorrect and for Capitol Police Board termination decisions to not be reviewable or appealable in any manner. [00:42:48] Speaker 04: And it's only terminations, right? [00:42:50] Speaker 04: Or is it 30-day suspensions? [00:42:53] Speaker 04: Is it all disciplinary matters against the police officers? [00:42:56] Speaker 01: Anything that would be considered similar to [00:43:00] Speaker 01: 75-12 or 43-03. [00:43:02] Speaker 01: So that would be reassignments, that'd be demotions, any discipline 15 days and over, and terminations. [00:43:10] Speaker 01: Because when you're reading 71-21E, right, it says matters similar to, which are 75-12, 43-03, in an other personnel system. [00:43:23] Speaker 01: So we believe we fit there. [00:43:24] Speaker 01: So it's not just terminations for the 71-21 argument. [00:43:29] Speaker 01: For the special rule argument, that simply deals with terminations. [00:43:34] Speaker 01: So that's why I said there's three bases in which to reverse the office of compliance board of directors. [00:43:43] Speaker 01: If there are no further questions. [00:43:46] Speaker 03: OK. [00:43:47] Speaker 03: Thank you all. [00:43:48] Speaker 03: The case is taken under submission. [00:43:51] Speaker 03: And that concludes this morning's arguments for this panel. [00:43:56] Speaker 01: All rise. [00:44:00] Speaker 02: The honorable court is adjourned until tomorrow morning. [00:44:02] Speaker 02: It's an o'clock a.m.