[00:00:00] Speaker 05:
We have four argued cases this morning which are number 17-20-60, 17-20-61, 18-52, and 18-50-1504.

[00:00:17] Speaker 05:
And by order yesterday, we reordered the argument because of the overlap among the four cases and have asked the parties to address these in three segments.

[00:00:30] Speaker 05:
So let's turn first to the first segment, Mr. Herrera.

[00:00:42] Speaker 01:
Good morning, Your Honors and may it please the Court.

[00:00:44] Speaker 01:
My name is Frederick Herrera.

[00:00:46] Speaker 01:
I represent the United States Capitol Police in this Negotiability Action

[00:00:51] Speaker 01:
Pursuant to the court's instruction, I will be covering first why this court has jurisdiction over a petition for review of a negotiability dispute, followed by why the Office of Compliance was incorrect as a matter of law in finding that three union proposals were negotiable.

[00:01:09] Speaker 05:
Let me make a comment at the outset, which really applies to all three of these cases, that what we have is a situation in which these provisions under Title II

[00:01:20] Speaker 05:
have incorporated various provisions relating to the FLRA that appear in Title V. And the result of that is that it creates a certain amount of confusion to try to parse how to address what parts are incorporated and what parts are replaced by Title II.

[00:01:48] Speaker 05:
comes up in connection with the jurisdictional issue here.

[00:01:55] Speaker 05:
So why don't you go ahead and try to address that?

[00:01:58] Speaker 01:
Certainly.

[00:01:58] Speaker 01:
And you're right, the Capitol Police has been wrestling with this issue for 20 years since the Congressional Accountability Act came out.

[00:02:07] Speaker 01:
And we look at the various provisions to try and make sense out of the statute and how it all works.

[00:02:11] Speaker 01:
I think in our presentation,

[00:02:13] Speaker 01:
we came up with a way that it actually does work in the statute and what Congress's intent was, because we typically will start with the Congressional Accountability Act.

[00:02:23] Speaker 01:
And what was Congress trying to do with that statute?

[00:02:26] Speaker 01:
So we start with respect to the jurisdictional issue under 1407A1D.

[00:02:32] Speaker 00:
That provides that the general counsel... Just to clear out a bit of underbrush, I assume your reference to A1A was just a mistake.

[00:02:40] Speaker 00:
That's correct, Veronica.

[00:02:42] Speaker 01:
Yeah.

[00:02:42] Speaker 01:
So 1407A1D provides that the general counsel or a respondent before the board who files a petition under section 1351C3 of this title has jurisdiction before the Federal Circuit.

[00:02:55] Speaker 01:
There's no dispute from the Office of Compliance that we are a respondent to the petition.

[00:03:00] Speaker 05:
So that then takes us to the next section of the... Well, then your problem is that C3 refers to a respondent to a complaint in that section.

[00:03:09] Speaker 05:
Correct.

[00:03:09] Speaker 05:
So let's go... The view is the word complaint to...

[00:03:12] Speaker 05:
seemingly to apply to an unfair labor practice complaint.

[00:03:17] Speaker 01:
So let's take a look at 1351 because that one takes us a little bit of time to unpack.

[00:03:23] Speaker 01:
Under 1351, the provision says that except for matters referred to in paragraphs 1 and 2 of section 7123A.

[00:03:30] Speaker 01:
You're now reading from C3?

[00:03:33] Speaker 01:
That's C3.

[00:03:35] Speaker 01:
The general counsel or the respondent to a complaint is a... No complaint.

[00:03:39] Speaker 01:
Yeah, if aggrieved by a final decision of the board under paragraph one or two of this subsection may file a petition for judicial review in the United States Court of Appeals for the Federal Circuit pursuant to section 1407.

[00:03:52] Speaker 01:
So referred back to the statute giving this court jurisdiction.

[00:03:58] Speaker 01:
Now let's take that slowly.

[00:04:00] Speaker 01:
The first sentence says that except for matters referred to in paragraphs one and two of section 7123, those

[00:04:09] Speaker 01:
provisions are found under the C1 provision of the statute.

[00:04:14] Speaker 01:
So you'll find, for example, 7123A deals with arbitration wards under 7122, and 7123B, or two, deals with appropriate unit determinations under 7112 of the FLRA statute.

[00:04:34] Speaker 01:
So in looking at the statute of the provisions,

[00:04:37] Speaker 01:
C1 has to have some meaning here.

[00:04:40] Speaker 01:
The negotiability dispute arises under 7117 under C1.

[00:04:47] Speaker 01:
When that negotiability dispute arises, Congress provided a specific process that the Office of Compliance was required to follow.

[00:04:56] Speaker 01:
So the first step was that the matter shall be submitted to the Board of Directors of the Office of Compliance.

[00:05:05] Speaker 01:
Once they've done that, the next sentence says, the board shall refer any matter under this paragraph to a hearing officer for decision pursuant to B through H. And this is the- Of 1405.

[00:05:17] Speaker 01:
Of 1405.

[00:05:18] Speaker 01:
Right, which repeatedly refers to a complaint.

[00:05:21] Speaker 01:
Correct.

[00:05:22] Speaker 01:
There are six references to a complaint.

[00:05:25] Speaker 01:
And again, as Congress is looking at the statute and putting it together, it envisioned that this would be processed as a complaint.

[00:05:33] Speaker 01:
under C1.

[00:05:34] Speaker 05:
Let me just ask you to back up for a moment.

[00:05:37] Speaker 05:
Sure.

[00:05:39] Speaker 05:
In terms of what Congress might be seeking to achieve here, the compliance authority's position is that Congress didn't want to have these negotiability petitions made judicially reviewable.

[00:05:56] Speaker 05:
The only way you could get judicial review is understand the position.

[00:05:59] Speaker 05:
is to refuse to comply and then there would be an enforcement proceeding and you could argue in the enforcement proceeding that the negotiability dispute should be resolved in your favor, right?

[00:06:12] Speaker 05:
Right.

[00:06:12] Speaker 05:
So, do we have, is there anything that sheds any light on whether Congress wanted to allow the employer

[00:06:23] Speaker 05:
to petition for judicial review or to require that the employer wait and refuse to comply and have the proceeding come up as an enforcement proceeding?

[00:06:34] Speaker 01:
Yes, I think the indication is that is from this judicial review section of the Congressional Accountability Act, because what Congress said there was that a final decision of the board under paragraph one or two,

[00:06:49] Speaker 01:
To read the statute the way that the Office of Compliance would read it would be to not have a paragraph one because all of the ULP actions would originate under paragraph two.

[00:07:01] Speaker 01:
Congress knew what it was doing because if you look at the first sentence, they used paragraph one and two of section 7123.

[00:07:10] Speaker 01:
So clearly Congress envisioned two different processes that go forward.

[00:07:15] Speaker 01:
What they can't answer is what does paragraph A1 mean and who is a respondent to a complaint.

[00:07:20] Speaker 01:
It can only be a negotiability dispute that's processed under the process that Congress gave for the complaint under B through H of section 405.

[00:07:31] Speaker 00:
Can I ask you this?

[00:07:33] Speaker 00:
The other thing that I guess I was thinking about, and this may be certainly something I want the compliance board or the compliance office to address.

[00:07:44] Speaker 00:
A negotiability petition that goes through as, if requested, you generally have to do the hearing officer of 1405 to get a decision in 1405 G and then reviewed by the board in 1406 E. Those are all complaints.

[00:08:03] Speaker 00:
And I guess it's not clear to me that if this isn't a complaint that

[00:08:10] Speaker 00:
we have any jurisdiction under the enforcement section, which is expressly about enforcing something that goes through the 1405, um, complaint procedure.

[00:08:23] Speaker 01:
So let's look at the policy behind negotiability.

[00:08:27] Speaker 00:
I'm really, really focused on text.

[00:08:29] Speaker 00:
Yes.

[00:08:30] Speaker 00:
And that's why, and then just, just to be really clear, this feels to me like a very helpful point to you.

[00:08:37] Speaker 00:
It is.

[00:08:37] Speaker 00:
So can you,

[00:08:39] Speaker 00:
Tell me if there's something wrong with this, that this has to be a complaint where their enforcement action doesn't belong here.

[00:08:45] Speaker 01:
That is correct.

[00:08:46] Speaker 01:
And the fundamental reason, you start with what a negotiability petition is or what a negotiability dispute is.

[00:08:53] Speaker 01:
The agency has a duty to bargain over any condition of employment unless it's inconsistent with law.

[00:09:02] Speaker 01:
And who's making the decision of whether it's inconsistent with law?

[00:09:07] Speaker 01:
under the Congressional Accountability Act, that authority has been given to this court to determine inconsistent with law, conflicts with statutory provisions, constitutional arguments.

[00:09:21] Speaker 01:
Again, to read the statute the way they're presenting it, it would mean the Office of Compliance is given the sole authority to interpret law and statute.

[00:09:28] Speaker 05:
No, that's not the way they're reading it because they say these disputes couldn't be brought before the court.

[00:09:34] Speaker 05:
by your refusing to comply with the negotiability decision in requiring them to resort to enforcement action.

[00:09:43] Speaker 05:
In that action, you're able to raise any defenses, including that the item was not negotiable.

[00:09:53] Speaker 05:
Sure.

[00:09:53] Speaker 05:
So, I mean, they're not trying to deprive you of judicial review.

[00:09:57] Speaker 05:
The only question is, what's the mechanism here?

[00:10:01] Speaker 01:
But again, I'd start with what did Congress say?

[00:10:04] Speaker 01:
It said paragraph one or two.

[00:10:06] Speaker 01:
To read the statute the way they're presenting it, you don't need paragraph one.

[00:10:10] Speaker 05:
Well, let me raise another issue here.

[00:10:12] Speaker 05:
Look at 7117 of Title 5, which relates to the negotiability of disputes in the FLRA.

[00:10:21] Speaker 05:
And there, a hearing is discretionary, right?

[00:10:26] Speaker 05:
And then you look at 7118, and it compels a hearing.

[00:10:33] Speaker 05:
Why do you read this section C1 as saying that there shall always be a hearing under 1405?

[00:10:46] Speaker 05:
Why isn't the better reading of that that there shall be a hearing pursuant to 1405 when a hearing is required and that by the adoption of 7117 and 7118 that sometimes a hearing is discretionary and sometimes it's mandatory?

[00:11:02] Speaker 05:
Your honor, because Congress chose to use the word shall.

[00:11:08] Speaker 05:
I don't think that answers the question.

[00:11:10] Speaker 05:
You could read the sentence as saying, when a hearing is required or ordered, the board shall refer to a hearing officer.

[00:11:19] Speaker 01:
But your honor, that would be reading words not in the statute.

[00:11:22] Speaker 05:
Well, not really, which is trying to make sense out of an ambiguous statute.

[00:11:28] Speaker 05:
It doesn't say, that section doesn't say the board

[00:11:32] Speaker 05:
shall hold a hearing, it says the board shall refer under any matter under this paragraph to a hearing officer.

[00:11:38] Speaker 05:
So that seems to perhaps to be saying that when a hearing is required or ordered, then it shall be referred to a hearing officer.

[00:11:49] Speaker 01:
Again, that's not what the statute says.

[00:11:51] Speaker 01:
It says the board shall refer the matter to a hearing officer.

[00:11:54] Speaker 01:
You're not really answering my question.

[00:11:55] Speaker 01:
But for a hearing, right?

[00:11:58] Speaker 01:
Again, if you sort of think about the policy behind a negotiability... 7117 says a hearing is discretionary.

[00:12:06] Speaker 05:
And you're saying that even though 7117 was incorporated into this statute, that we should read this provision as overriding the discretionary nature.

[00:12:15] Speaker 01:
Yes, Your Honor, because this is the Congressional Accountability Act.

[00:12:19] Speaker 01:
And we start with the statute that Congress passed.

[00:12:22] Speaker 01:
For whatever reason, Congress decided this was the process it wanted to handle for negotiability disputes.

[00:12:29] Speaker 01:
It didn't adopt the process that was under the FLRA statute, because if it had, you wouldn't need any of this process under the statute.

[00:12:37] Speaker 05:
Well, the question is, what did they adopt and what didn't they adopt?

[00:12:40] Speaker 01:
Well, they adopted the statute and the rights under 7117 under paragraph C1, and they adopted the process for a negotiability dispute to be handled under C1 as well.

[00:12:53] Speaker 05:
We have decisions from the D.C.

[00:12:55] Speaker 05:
Circuit making clear

[00:12:57] Speaker 05:
that these negotiability disputes are unique and that it's really important to resolve them quickly.

[00:13:04] Speaker 05:
And you don't disagree with that, do you?

[00:13:07] Speaker 01:
I don't disagree at all with that.

[00:13:09] Speaker 01:
And in fact, the hearing helps that.

[00:13:11] Speaker 01:
It helps focus what the issues are.

[00:13:13] Speaker 01:
It focuses the facts.

[00:13:15] Speaker 01:
And we'll see in the later argument that there were a lot of inconsistent, wrong facts that the office of compliance relied on to make its decision.

[00:13:22] Speaker 01:
If we had the facts in the record developed up front,

[00:13:26] Speaker 01:
We wouldn't, we might not be here.

[00:13:28] Speaker 01:
That's why the hearing is important.

[00:13:30] Speaker 00:
As a practical matter, if enforcement is always available here, when after they, the board does a negotiability ruling and you say, we don't like that.

[00:13:43] Speaker 00:
We're going to ignore it.

[00:13:44] Speaker 00:
And then they'll come here.

[00:13:46] Speaker 00:
What practical differences there is there between whether there's jurisdiction over your petition for review.

[00:13:53] Speaker 00:
or jurisdiction over their petition to enforce.

[00:13:56] Speaker 01:
I don't think there's any practical difference.

[00:13:58] Speaker 00:
I think the board makes some kind of argument that if you take the absence of jurisdiction over your petition to review, that tells you something about how when they come here to enforce, our review ought to be with a very light hand.

[00:14:14] Speaker ?:
Right.

[00:14:15] Speaker 00:
Is that the only difference?

[00:14:18] Speaker 01:
Again, the policy is where I start with this.

[00:14:22] Speaker 01:
Negotiability is to work on the relationship with the union.

[00:14:25] Speaker 01:
It really shouldn't be involving the Office of Compliance at all in the process.

[00:14:29] Speaker 01:
And there are steps along the way that we can do that with the hearing process.

[00:14:33] Speaker 01:
If you're waiting for us to come in enforcement, then it looks like we're not complying with the law.

[00:14:38] Speaker 01:
And that's just not a place that the department wants to be.

[00:14:41] Speaker 01:
I mean, it wants to have good labor relations.

[00:14:44] Speaker 01:
It wants to work on the issues.

[00:14:45] Speaker 05:
I'm not really understanding what you're saying.

[00:14:47] Speaker 05:
If we were to read

[00:14:49] Speaker 05:
the enforcement action review as being subject to traditional APA standards rather than the lead-in-the-kind standard.

[00:15:03] Speaker 05:
Is there any practical difference?

[00:15:04] Speaker 05:
What is the practical difference about your having to raise the issue in an enforcement proceeding as opposed to being able to petition on your own?

[00:15:13] Speaker 01:
The practical difference from our standpoint is that you have a better record developed when you have a hearing.

[00:15:19] Speaker 01:
If it's just the enforcement, there's no hearing.

[00:15:22] Speaker 00:
It may only be me.

[00:15:23] Speaker 00:
I think we, at least I keep getting confused between whether we're talking about jurisdiction or whether we're talking about whether you had a absolute right to a hearing, parenthesis, if only you had asked.

[00:15:34] Speaker 00:
Can we just focus on the jurisdiction question?

[00:15:37] Speaker 00:
Sure.

[00:15:37] Speaker 00:
So again, with respect, what difference is there?

[00:15:41] Speaker 00:
Assuming that review of their enforcement petition.

[00:15:45] Speaker 00:
would be under the same standard or review as review under your, call it an appeal from the negotiability ruling.

[00:15:54] Speaker 05:
And assume also that in either event, the hearing rights are the same.

[00:16:00] Speaker 05:
Right.

[00:16:00] Speaker 05:
There would be no difference.

[00:16:02] Speaker 01:
There wouldn't be no difference.

[00:16:03] Speaker 01:
The only reason I'm sort of focusing on this is because then it reads out this whole process that Congress came with under 1351C1.

[00:16:12] Speaker 02:
Would there be a difference in terms of the time in which it takes to ultimately resolve these questions?

[00:16:21] Speaker 02:
In other words, would it make more sense to have whatever review is appropriate done at an earlier phase in the proceedings rather than waiting until the enforcement phase?

[00:16:36] Speaker 01:
It's hard to say, Your Honor, because if they followed the statute, you'd have a hearing officer decision that fleshed out the issues.

[00:16:42] Speaker 01:
You'd have those issues appealed to the board of directors.

[00:16:45] Speaker 01:
Following their reasoning, you wouldn't have a hearing and you wouldn't have that process to appeal.

[00:16:51] Speaker 01:
They would make the decision in the first instance.

[00:16:54] Speaker 02:
And so by making that decision in the first... Which is consistent with the idea of an expedited process.

[00:17:01] Speaker 01:
Well, I'm not sure how expedited it is, depending on how long they take to make a decision.

[00:17:05] Speaker 01:
Sometimes their decisions take over a year to decide.

[00:17:09] Speaker 01:
So it's sort of out of my control as to whether they control an expedited process and how they decide it.

[00:17:15] Speaker 01:
But the challenge for us is when they have an expedited process, that's sometimes where the errors get made as a matter of law.

[00:17:22] Speaker 00:
Can I ask you this?

[00:17:24] Speaker 00:
Do we have to, if we accept your theory about jurisdiction, which I think has some textual basis, do we have to say that something

[00:17:37] Speaker 00:
in Morris is wrong?

[00:17:40] Speaker 01:
I think Morris was correctly decided because it was an arbitration award pursuant to that first sentence of the judicial review of 1351C3, except for matters referred to in paragraph one and two.

[00:17:54] Speaker 01:
Morris was a matter in paragraph one.

[00:17:57] Speaker 01:
So I think that Morris is correctly decided.

[00:18:00] Speaker 01:
I just think that the... This is not clear in my mind.

[00:18:05] Speaker 00:
I thought in Morris there was a dispute about whether the grievance that went to arbitration did or did not involve an unfair labor practice, and this court in Morris at the very end of the opinion says we don't need to decide that.

[00:18:18] Speaker 00:
So we have to assume that it did involve an unfair labor practice, in which case the 71-23 exception to the non-reviewability principle wouldn't apply.

[00:18:33] Speaker 01:
Correct.

[00:18:35] Speaker 01:
If the court had decided that issue on the merits, then it would have been an unfair labor practice for which they had jurisdiction.

[00:18:43] Speaker 00:
And then Morris says expressly, the statutes defining the right of judicial review, to judicial review of board decisions, thus make clear that only the board's general counsel and the respondent to an unfair labor practice, which we do not have in front of us, are authorized to obtain review in this court of an adverse board decision, unless you tell me that

[00:19:04] Speaker 00:
we do have an unfair labor practice in front of us, but I thought the petitions expressly disclaimed that.

[00:19:10] Speaker 01:
Right.

[00:19:10] Speaker 01:
We didn't have it in front of us here, and we didn't have it in front of the court in the Morris decision.

[00:19:15] Speaker 00:
And in fact, what... Well, it was in front of the court, but there was a dispute about it.

[00:19:20] Speaker 05:
Right.

[00:19:20] Speaker 05:
So, I mean, it seems pretty clear what Morris is saying, and it's contrary to what you're saying.

[00:19:26] Speaker 05:
So you'd have to

[00:19:27] Speaker 05:
say, well, that issue was just dictum.

[00:19:30] Speaker 01:
Well, the negotiability was not before the court in that case.

[00:19:34] Speaker 01:
They didn't talk at all about the negotiability petitions, what Congress had intended.

[00:19:38] Speaker 01:
In fact, they didn't even talk about C-1, if you look at the decision making and how they got to that provision.

[00:19:44] Speaker 00:
Was your office involved in, Morris, I don't remember, or just the board and the... Just the board and the union.

[00:19:49] Speaker ?:
Okay.

[00:19:51] Speaker 01:
So this is the first time we've had an opportunity to address that issue.

[00:19:54] Speaker 01:
Might I turn to the termination action now?

[00:19:57] Speaker 01:
Have I?

[00:19:59] Speaker 01:
Yeah.

[00:19:59] Speaker 01:
OK.

[00:20:00] Speaker 01:
OK.

[00:20:03] Speaker 01:
Here the office compliance found that there were... We should be having the clock here.

[00:20:10] Speaker 05:
We, I think... You don't see the clock up there?

[00:20:13] Speaker 01:
No.

[00:20:13] Speaker 01:
OK.

[00:20:13] Speaker 01:
He's four and a half minutes over his time so far.

[00:20:15] Speaker 01:
OK.

[00:20:16] Speaker 05:
Is there some way to fix the clock so we can... I'm not sure why that's not there.

[00:20:23] Speaker 01:
OK.

[00:20:24] Speaker 01:
Go ahead.

[00:20:24] Speaker 01:
Thank you, Your Honor.

[00:20:26] Speaker 01:
Here the union found that there were three proposals that were negotiable.

[00:20:32] Speaker 01:
The starting point, however, is the statute itself.

[00:20:35] Speaker 01:
If you look at their decision, they not once refer to the negotiability statute which provides that a matter is... What is your contention here?

[00:20:45] Speaker 05:
Is it primarily that this would be inconsistent with the statute?

[00:20:51] Speaker 05:
There are three inconsistencies with law.

[00:20:53] Speaker 05:
But that's the position, right?

[00:20:55] Speaker 04:
Yes.

[00:20:55] Speaker 05:
You're not relying on the specified by law provision.

[00:20:59] Speaker 01:
Correct.

[00:21:00] Speaker 01:
Okay.

[00:21:00] Speaker 01:
Correct.

[00:21:01] Speaker 01:
We are relying on 7117, which says you have a duty to bargain unless it is inconsistent with law.

[00:21:06] Speaker 01:
The three laws that it is inconsistent with are the special rule on terminations that Congress passed giving the board approval authority over terminations under 1907 E1B.

[00:21:21] Speaker 01:
The second statute is the Congressional Accountability Act, which took out the Capitol Police Board, who's the final approval authority, out of the statute and not making it subject to the labor relations provisions.

[00:21:34] Speaker 01:
And the third statute that it's inconsistent with is Section 7121 E, F, and 7121 E and F, and 7122.

[00:21:43] Speaker 01:
Together, those three statutes provide a process.

[00:21:47] Speaker 00:
And just remind me, what does 7121 E and F do?

[00:21:50] Speaker 00:
7122 is the arbitration?

[00:21:52] Speaker 01:
7121E is the grievance procedure.

[00:21:55] Speaker 01:
7120E provides that if you have a choice of an alternative forum, you can either bring the grievance through a negotiated grievance procedure or you can bring it through the statutory appeal procedure.

[00:22:10] Speaker 01:
But it's merely an election of forums.

[00:22:12] Speaker 01:
It doesn't create its own forum.

[00:22:15] Speaker 01:
If you look at 7122F, that then goes to the judicial review.

[00:22:20] Speaker 01:
So if you have judicial review in that statutory form, you get that judicial review in the negotiability form.

[00:22:26] Speaker 01:
And then 7122F provides that for those matters that fall under this judicial review in this other process, those cases do not go to the FLRA for decision.

[00:22:38] Speaker 01:
Those cases are exempt by the statute from that process.

[00:22:42] Speaker 01:
Because Congress wanted to create a separate process for terminations to be decided.

[00:22:47] Speaker 05:
I'm not sure I understand your point.

[00:22:49] Speaker 05:
There's nothing in the statutory scheme that says that the decision of the board on a termination is to be final and not judicially reviewable, right?

[00:23:00] Speaker 01:
Well, approval must mean something, right?

[00:23:03] Speaker 05:
And in that same statute that, you know, if you think about... There's no specific provision that says that there's no judicial review.

[00:23:10] Speaker 05:
I know the board has come out with this order.

[00:23:14] Speaker 05:
that says that, but I don't see that that's necessarily entitled to Chevron deference, but there's nothing in the statute itself that says that the board's decision shall be final, right?

[00:23:27] Speaker 01:
It does not say that, but what else can approval mean?

[00:23:31] Speaker 00:
Because by definition... If you look at the Fort Stewart case in the Supreme Court, that was, I think, about whether something was bargainable and the something was

[00:23:43] Speaker 00:
the school establishing agency's establishment of salaries or something, right?

[00:23:50] Speaker 00:
And it was just an ordinary provision that said the agency gets to fix the pay.

[00:23:57] Speaker 00:
Why is this any different from that?

[00:23:58] Speaker 00:
The police board gets to approve a termination.

[00:24:02] Speaker 00:
So what?

[00:24:04] Speaker 00:
That doesn't mean it's removed from otherwise applicable bargainability provision.

[00:24:11] Speaker 00:
Why is this a stronger provision?

[00:24:13] Speaker 00:
than the one in Fort Stewart.

[00:24:15] Speaker 01:
Because the focus here is on the inconsistent with law.

[00:24:19] Speaker 01:
So let's play out the scenario.

[00:24:21] Speaker 01:
The board approves a termination and that case then goes to an arbitrator.

[00:24:26] Speaker 00:
The arbitrator says... They can reverse the police board, right?

[00:24:30] Speaker 01:
No, the police board has no... They have no jurisdiction over the police board at all.

[00:24:36] Speaker 00:
They can reverse the termination.

[00:24:38] Speaker 00:
Is that... They can reverse the termination.

[00:24:41] Speaker 00:
That would be the consequence, right?

[00:24:43] Speaker 01:
The arguments that they couldn't reverse the termination.

[00:24:47] Speaker 01:
Right.

[00:24:48] Speaker 01:
Our arguments, they can't reverse the termination because the board approved that termination.

[00:24:53] Speaker 01:
And so, so then you'd have this inconsistent with law.

[00:24:56] Speaker 01:
The board says we've exercised our statutory authority, chief of police.

[00:25:00] Speaker 01:
We've told you we've approved that terminations.

[00:25:03] Speaker 01:
That's our decision.

[00:25:04] Speaker 01:
That's our statutory decision.

[00:25:06] Speaker 01:
By changing that or by allowing that decision to go, it doesn't matter what the board says.

[00:25:12] Speaker 01:
Because ultimately what you're saying is this arbitrator.

[00:25:17] Speaker 01:
So ultimately play out the scenario, right?

[00:25:20] Speaker 01:
An arbitrator makes that decision for a termination of an employee.

[00:25:25] Speaker 01:
That decision is unreviewable by anybody.

[00:25:27] Speaker 01:
Congress clearly couldn't have meant that bargaining union employees got more rights than any other legislative branch employee, than any federal branch employee.

[00:25:37] Speaker 01:
That would be the consequence of it because that arbitration decision wouldn't be subject to review at all.

[00:25:43] Speaker 05:
Congress thought... Why is it that the arbitration decision... Let's assume that you negotiate a grievance procedure with respect to terminations and then part of the grievance procedure is it goes to an arbitrator and the arbitrator can overturn the termination.

[00:25:58] Speaker 05:
That presumably is what the union is seeking here, right?

[00:26:01] Speaker 05:
Right.

[00:26:01] Speaker 05:
So why is it that that arbitration decision

[00:26:05] Speaker 05:
wouldn't be subject to any kind of judicial review after that?

[00:26:09] Speaker 01:
Because 7122F says that decision is not subject to review.

[00:26:15] Speaker 01:
It's a termination decision not subject to review.

[00:26:18] Speaker 01:
7122F?

[00:26:25] Speaker 01:
That says, either party to arbitration under this chapter may file with the authority in exception to any arbitrator's award pursuant to the arbitration

[00:26:33] Speaker 05:
Other than an award relating to a matter described under 71... You're talking about 7122 in Title V?

[00:26:39] Speaker 05:
Correct.

[00:26:40] Speaker 05:
7122F?

[00:26:42] Speaker 01:
Correct.

[00:26:43] Speaker 01:
So if you start with 7122... Hold on a second, this must be... It can't be 7122F unless I've got the wrong version.

[00:26:54] Speaker 01:
No, no, it's 5 U.S.E.

[00:26:55] Speaker 01:
7122 which refers to Section 7121F.

[00:26:58] Speaker 01:
I don't have an F either.

[00:27:00] Speaker 01:
Oh, 7121.

[00:27:02] Speaker 01:
Yes.

[00:27:06] Speaker 01:
So what 7121E and F provide is an alternative form, if there is one, statutory alternative form for termination.

[00:27:17] Speaker 05:
So wait, how do we get this provision incorporated?

[00:27:24] Speaker 05:
Where is this incorporated title kit?

[00:27:28] Speaker 01:
Under the CAA.

[00:27:29] Speaker 01:
That's under 1351C1.

[00:27:30] Speaker 01:
1351, I'm sorry, A1.

[00:27:36] Speaker 01:
The rights and responsibilities of 7119 through 7122.

[00:27:40] Speaker 00:
And C1 picks up the 7122 authority decision.

[00:27:45] Speaker 01:
So this is 7121.

[00:27:47] Speaker 01:
How do we get to 7122?

[00:27:49] Speaker 01:
It's 7119 through 7122.

[00:27:52] Speaker 01:
So it's 1920, 21, and 22.

[00:27:54] Speaker 01:
I see.

[00:27:56] Speaker ?:
OK.

[00:27:58] Speaker 01:
And so Congress understood what the law is.

[00:28:00] Speaker 00:
I mean, what's interesting, you think you've just explained, but I haven't gotten yet your precise argument about why something in 71, 21 and 22 would be violated, is inconsistent were an arbitrator permitted to reverse a termination after the police board has approved

[00:28:24] Speaker 00:
Can you explain that again?

[00:28:25] Speaker 00:
Sure.

[00:28:26] Speaker 01:
We start with what the courts have interpreted 7121 to mean.

[00:28:31] Speaker 01:
Unlike the Office of Compliance, which says it's an expansive provision, 7121 is actually a limitation provision.

[00:28:38] Speaker 01:
And one of those limitation provisions is how you handle terminations and similar matters.

[00:28:46] Speaker 01:
And so what the court has said is we've created

[00:28:49] Speaker 01:
a mechanism if you have statutory appeal rights.

[00:28:52] Speaker 01:
So for example, in the executive branch, they have statutory appeal rights to the MSPB and to the Federal Circuit.

[00:28:58] Speaker 01:
So if you are in a negotiated grievance procedure, you can either go grievance route or appellate route, but not both.

[00:29:05] Speaker 01:
But when you don't have a statutory appeal right, then the courts have said, and the Seventh Circuit and the D.C.

[00:29:11] Speaker 01:
Circuit have looked at this and said, 7121 does not create an independent right to challenge terminations.

[00:29:18] Speaker 01:
And that's why that is important because the Office of Compliance is reading 7121.

[00:29:23] Speaker 01:
I'm sorry, I'm not following this.

[00:29:25] Speaker 05:
So, 7121, where does this say that the termination decision by an arbitrator is not reviewable?

[00:29:35] Speaker 01:
That is under 7122.

[00:29:36] Speaker 05:
7122 is no review provision?

[00:29:51] Speaker 01:
So that has the clause there, other than award, everything's, either party to arbitration may file the authority in exception to any arbitrator's award pursuant to the arbitration, other than an award relating to a matter described in 7121F.

[00:30:07] Speaker 00:
And what are those, what is such a matter if we look at 7121F?

[00:30:11] Speaker 01:
So 7121F talks about a matter covered under section 4303 and 7512 of this title.

[00:30:19] Speaker 01:
Those are terminations and suspensions to motions greater than 15 days, which have been raised under the negotiated grievance procedure in accordance with Section 7703 of this title pertaining to judicial review shall apply to the award of an arbitrator in the same manner and under the same condition as if the matter had been decided by the Board.

[00:30:40] Speaker 01:
In matters similar to those covered under 4303 and 7512 of this title,

[00:30:46] Speaker 01:
which arise under other personnel systems in which an agreed employee has raised under the negotiated grievance procedure, judicial review of an arbitrator's award may be obtained in the same manner and on the same basis as could be obtained of a final award under applicable appellate procedures.

[00:31:02] Speaker 01:
I'm not getting it.

[00:31:03] Speaker 05:
I'm sorry, how does this say that an arbitrable award pursuant to the negotiated grievance procedure is not judicial reviewable under any circumstances?

[00:31:15] Speaker 01:
You start with section 7121E.

[00:31:16] Speaker 01:
It's E. Matters covered under 4303 and 7512, which also fall under the coverage of a negotiated grievance procedure, may in the discretion of the employee be raised under the appellate procedures or under the negotiated grievance procedures, but not both.

[00:31:37] Speaker 01:
What the courts have said is this is an election if you have an appellate procedure.

[00:31:43] Speaker 01:
If you don't,

[00:31:44] Speaker 01:
This section 7121 does not create an independent right to review.

[00:31:54] Speaker 01:
So together, when you read those three provisions together, and that's the DC Circuit decision, the Seventh Circuit decision, and the Ninth Circuit decision, every court that has the appellate court that has looked at the breadth of 7121

[00:32:11] Speaker 01:
has concluded it's not an expansion of grievance rights that goes to an arbitrator and then is unreviewable.

[00:32:18] Speaker 01:
It's a limitation because Congress... I'm sorry, I do not understand what your argument is.

[00:32:24] Speaker 05:
Let's assume that you're correct, that the arbitrator's decision in the termination would not be judicially reviewable.

[00:32:30] Speaker 05:
Where does that get you?

[00:32:33] Speaker 01:
Well, it gets the arbitrator to have the final say over any termination of a legislative branch employee.

[00:32:40] Speaker 01:
Well, so what?

[00:32:41] Speaker 01:
Well, they would have greater rights than anyone had been given in the federal executive branch.

[00:32:50] Speaker 01:
And there's no indication that Congress intended to do it.

[00:32:53] Speaker 01:
What Congress intended was to give basic rights to employees.

[00:32:57] Speaker 01:
Here, by doing that, the final person, and these are officers that carry guns.

[00:33:03] Speaker 01:
The person that is making a decision as to whether that officer should be carrying a gun

[00:33:08] Speaker 01:
It's not the chief of police.

[00:33:10] Speaker 01:
It's not the board that has the enforcement of the legislative branch, the house and the Senate and the Capitol.

[00:33:18] Speaker 01:
It's this outside arbitrator that's making a decision whether to put a gun in an officer's hand.

[00:33:24] Speaker 01:
And that's a policy problem.

[00:33:26] Speaker 01:
Ultimately, when Congress came up with this, if the Congress had intended that an arbitrator makes that final, unreviewable decision,

[00:33:36] Speaker 01:
think you'd see it somewhere in the statute, because that's pretty important.

[00:33:40] Speaker 01:
If Congress envisioned that that arbitrator could make a decision unreviewable to put a gun in somebody's hand, that's pretty significant.

[00:33:49] Speaker 00:
In the FLRA context, aren't there rather a lot of federal employees with guns in their hands that are in this same position?

[00:34:00] Speaker 01:
The difference though is that case ultimately gets reviewed by the MSPB and by this court.

[00:34:05] Speaker 01:
So that's the difference there.

[00:34:07] Speaker 01:
There's a review process of that.

[00:34:09] Speaker 01:
There would be none here.

[00:34:12] Speaker 01:
And that's pretty significant.

[00:34:13] Speaker 01:
The arbitrary decision doesn't get reviewed by the MSPP.

[00:34:16] Speaker 05:
It comes directly here.

[00:34:17] Speaker 01:
Correct.

[00:34:18] Speaker 01:
But there is a review of that decision.

[00:34:21] Speaker 01:
In this setting, there would be absolutely no review.

[00:34:24] Speaker 05:
I think I understand your point.

[00:34:29] Speaker 05:
Unless there are other questions here, why don't we

[00:34:33] Speaker 05:
Thank you, Your Honor.

[00:34:50] Speaker 03:
May it please the Court?

[00:34:51] Speaker 03:
Good morning.

[00:34:53] Speaker 03:
I think we can all agree that the Capitol Police has the burden to establish jurisdiction here.

[00:35:00] Speaker 03:
And I think it's also fair to say that in their primary brief,

[00:35:03] Speaker 03:
They really did not establish jurisdiction.

[00:35:06] Speaker 03:
They don't even cite Morris.

[00:35:08] Speaker 03:
Morris is a case that came out of the... I'm not going to decide this.

[00:35:11] Speaker 05:
There's not a bad briefing of this case to go around.

[00:35:18] Speaker 03:
I understand that.

[00:35:19] Speaker 03:
But I think that Morris clearly established what jurisdiction... The court in Morris looked at the same... Well, it says that, but maybe it was dictum.

[00:35:32] Speaker 00:
Now, if I remember, I think I looked at your brief in that case, you did not make that submission about the interpretation of 1351 C provisions in your brief.

[00:35:43] Speaker 00:
I don't think you ever said the respondent to the complaint is only the respondent to a filing by the general counsel or even only to an unfair labor practice.

[00:35:57] Speaker 03:
I believe we did.

[00:35:58] Speaker 03:
I think that was the whole point of citing Morris since that was

[00:36:02] Speaker 03:
what they decided is that you have to be a respondent.

[00:36:04] Speaker 00:
I'm sorry.

[00:36:05] Speaker 00:
I misspoke.

[00:36:06] Speaker 00:
Put yourself back 10 years.

[00:36:08] Speaker 00:
Think about your brief in the Morris case.

[00:36:11] Speaker 00:
I do not think that you made the blanket assertion about respondent to the complaint that the Morris opinion ends up articulating.

[00:36:24] Speaker 03:
That may be so.

[00:36:25] Speaker 03:
I mean, I didn't brief Morris, so I don't recall.

[00:36:28] Speaker 00:
And it didn't involve a negotiability petition or maybe other things in paragraph one that are different from the grievance and arbitration process that was in front of the court.

[00:36:41] Speaker 03:
That is true.

[00:36:44] Speaker 00:
If you look at 1351C3, what, in your view,

[00:36:50] Speaker 00:
Does the reference to paragraph one, namely C1, have work to do?

[00:36:56] Speaker 00:
Yes.

[00:36:57] Speaker 03:
If you read C1, that defines the authority of the board.

[00:37:01] Speaker 03:
And it says the board shall have the same authority as the Federal Legislation's authority has with respect to those various statutes, which includes 7117, which says that the board shall have discretion to decide whether or not there's going to be a hearing.

[00:37:16] Speaker 03:
It also incorporates

[00:37:19] Speaker 03:
the board's authority in unfair labor practice cases.

[00:37:22] Speaker 03:
So it talks about 7116 and 7118.

[00:37:24] Speaker 03:
So by referencing both 1 and 2, it allows a party, either the general counsel or the respondent to a complaint, to raise issues regarding what authority the board exercised under 1 or what the general counsel exercised under 2.

[00:37:42] Speaker 00:
And if the general counsel decides

[00:37:47] Speaker 00:
he or she is not going to proceed in filing a complaint and the person who, the employee or the union or somebody who files a, makes a submission, I'm trying to avoid the word complaint, makes a submission saying, here's an unfair labor practice.

[00:38:04] Speaker 00:
The board gets to go ahead and do that.

[00:38:05] Speaker 00:
It gets to resolve that, right?

[00:38:07] Speaker 00:
It doesn't say, well, general counsel hasn't filed anything, so go away.

[00:38:10] Speaker 03:
I don't think it does do that.

[00:38:12] Speaker 03:
I mean, what it says is that

[00:38:15] Speaker 03:
the board has the same authority as the Federal Relations Authority has with respect to unfair labor practices.

[00:38:21] Speaker 03:
That's what C-1 says.

[00:38:23] Speaker 03:
So that the FLRA, they cannot hear an unfair labor practice case unless the general counsel files a complaint.

[00:38:29] Speaker 00:
So can you tell me why we have jurisdiction over your enforcement action?

[00:38:36] Speaker 00:
Yes.

[00:38:37] Speaker 00:
I mean the... If there's no complaint here.

[00:38:40] Speaker 03:
Right.

[00:38:41] Speaker 03:
You have to go back to 7117.

[00:38:44] Speaker 03:
7117 explains what the procedure is when it comes to... No, no.

[00:38:50] Speaker 00:
In a jurisdiction under reinforcement, you have to start with 1407A2.

[00:38:54] Speaker 00:
Correct.

[00:38:56] Speaker 00:
Okay.

[00:38:56] Speaker 00:
And that says what you can enforce is a board decision that is under 1406E reviewing a 1405G

[00:39:11] Speaker 00:
hearing officer decision 1405 G is expressly about a decision on a complaint.

[00:39:20] Speaker 00:
So I guess what I'm, I'll put it this way.

[00:39:23] Speaker 00:
You can't be here under enforcement.

[00:39:25] Speaker 00:
Tell me why this is wrong.

[00:39:26] Speaker 00:
I put it, put it to you to tell me why this is wrong.

[00:39:30] Speaker 00:
You can't be here under 1407 A2 unless there is a complaint.

[00:39:38] Speaker 00:
that started this proceeding, because that's what the board ruled on.

[00:39:45] Speaker 03:
The board's authority to issue a decision, the only authority is under 1406E.

[00:39:50] Speaker 05:
So you're thinking 1406E is not limited to situations where there's been a reference to the hearing officer.

[00:39:59] Speaker 03:
Correct.

[00:40:00] Speaker 03:
I mean, I think it's really the last sentence that's applicable, and that is a decision that does not require further proceedings, having

[00:40:08] Speaker 03:
before a hearing officer shall be entered into the records as a final decision.

[00:40:12] Speaker 00:
And if this had gone to a hearing officer, then would there be a complaint?

[00:40:18] Speaker 03:
No.

[00:40:19] Speaker 03:
There is a way there could be a complaint if it went to a hearing officer, and that is, and I think there are... It would be if it was an unfair waiver.

[00:40:28] Speaker 03:
Exactly, exactly.

[00:40:29] Speaker 03:
In other words, if there would be, I mean, the reason why we sought the petition here is because this is supposed to be an expedited procedure.

[00:40:37] Speaker 03:
The other way that we could enforce this is by filing an unfair labor practice saying they have failed to comply with the board order.

[00:40:44] Speaker 03:
And that would then go through the hearing process and would go through the board.

[00:40:47] Speaker 03:
And that would be another two years.

[00:40:50] Speaker 03:
So the way we read the statute, there is enforcement authority under any final decision of the board that we can seek enforcement authority before the court.

[00:41:00] Speaker 03:
And if you read the purpose of 7117 along with the regulations, this is supposed to be an exodited procedure.

[00:41:08] Speaker 03:
We're asking you to expedite it for us and to reach the issues that... Wouldn't expedition be served by not waiting for an enforcement action?

[00:41:17] Speaker 03:
Well, you could... Barrets are exactly the same.

[00:41:21] Speaker 03:
Right.

[00:41:22] Speaker 03:
Unfortunately, the Congress made a decision not to... Oh, so now we're back to the text.

[00:41:26] Speaker 03:
Right.

[00:41:27] Speaker 03:
I think we're back to the text.

[00:41:28] Speaker 00:
So if we're back to the text, how do you get here under 1407A2 for enforcement?

[00:41:35] Speaker 00:
As I said... Which says...

[00:41:37] Speaker 00:
coming from 1406E, which is about, you go back up to 1406A, which starts the process of reviewing a hearing officer decision under 1405G and 1405B, C, G are all about complaints.

[00:41:52] Speaker 03:
That takes you back to the authority they have under 7117, because under 7117 petitions go right to the board.

[00:42:01] Speaker 00:
I don't think that is taking me back.

[00:42:04] Speaker 00:
You need for 1407A2 jurisdiction for there to have been something that came through 1405G to 1406E and 1405G is all about a complaint.

[00:42:21] Speaker 00:
And I'm happy to say you had that and that if the hearing right is waived, then it's effectively encompassing whatever could have gone to a hearing officer.

[00:42:32] Speaker 00:
But it seems to me that that reference of 1351C1 and C3 internally to the 1405G process, the 1405 process, contemplates all but expressly that that process involves a complaint.

[00:42:51] Speaker 00:
And that is the key issue for 1305C3 jurisdiction.

[00:42:57] Speaker 05:
Is this a complaint?

[00:42:58] Speaker 05:
Well, you're saying that the reference to 1406E includes situations in which the board renders a decision without going to the hearing officer.

[00:43:07] Speaker 03:
Correct.

[00:43:09] Speaker 03:
And that's contemplated in the incorporation of 7117, which says that these go directly to the board and they can decide to send it to a hearing officer if they want.

[00:43:20] Speaker 03:
this is an expedited procedure that they will decide.

[00:43:24] Speaker 05:
Well, that gets us to this question which was supposed to be in the next segment, and that is whether a hearing is mandatory here.

[00:43:32] Speaker 05:
And your argument is that the incorporation of 7117 makes the reference to a hearing officer in a negotiability dispute discretionary.

[00:43:42] Speaker 05:
Correct.

[00:43:43] Speaker 05:
That's correct.

[00:43:44] Speaker 03:
And if there's any doubt, the regulations make it clear.

[00:43:46] Speaker 03:
The board did issue regulations which

[00:43:48] Speaker 03:
pretty much mimic 7117, and those regulations were approved by Congress.

[00:43:52] Speaker 03:
I mean, the board doesn't have the authority to issue them.

[00:43:54] Speaker 03:
It wasn't approved by Congress, not in an Article I sense.

[00:43:58] Speaker 03:
The President didn't sign anything.

[00:44:00] Speaker 03:
That's correct, but it was a joint resolution or a concurrent resolution.

[00:44:03] Speaker 03:
What's the status of that?

[00:44:05] Speaker 03:
Well, Congress approved it.

[00:44:09] Speaker 03:
I think we cited the provision in the Congressional Record.

[00:44:12] Speaker 00:
No, I understand that the two Houses of Congress said, this is fine.

[00:44:16] Speaker 00:
That wasn't the law.

[00:44:18] Speaker 03:
Well, except that it is a regulation.

[00:44:20] Speaker 03:
Normally, substantive regulations have the force of law if the agency has the authority to issue it on their own.

[00:44:25] Speaker 00:
Right, unless they're contrary to... Exactly, so they follow... You've got to let me finish.

[00:44:30] Speaker 00:
I'm sorry I speak a little slowly, but you've got to pay attention and let me finish.

[00:44:35] Speaker 00:
A regulation is unenforceable if it's contrary to a plain statutory requirement.

[00:44:45] Speaker 00:
I guess we're shifting over to that issue now.

[00:44:48] Speaker 00:
What's unplain about this?

[00:44:52] Speaker 00:
And by the way, I'm going to put completely to one side the question of whether this was waived by the employer, which as far as I can tell, it was.

[00:45:00] Speaker 00:
But if we're talking about what this means, where is the ambiguity?

[00:45:05] Speaker 03:
Well, I think the Supreme Court on many occasions has noted that the word shall can be ambiguous.

[00:45:13] Speaker 03:
It can be may,

[00:45:14] Speaker 03:
and vice versa.

[00:45:16] Speaker 03:
We did cite a case for that.

[00:45:18] Speaker 05:
I think there may be a... The ambiguity results from the fact that 7117, which is incorporated, makes the hearing discretionary, unlike 7118, which makes it mandatory.

[00:45:28] Speaker 05:
And you can read this provision.

[00:45:30] Speaker 05:
You don't necessarily have to.

[00:45:31] Speaker 05:
You could read it the other way.

[00:45:33] Speaker 05:
You could read this provision as saying that it's describing what happens when

[00:45:41] Speaker 05:
or ordered by the board.

[00:45:43] Speaker 05:
In other words, then you get the reference for the hearing officer.

[00:45:46] Speaker 05:
That's a possible reading of this.

[00:45:49] Speaker 03:
I agree, yes.

[00:45:50] Speaker 03:
But that's where the ambiguity is.

[00:45:54] Speaker 03:
In the very first sentence it says that as the authority of 7117,

[00:45:58] Speaker 03:
which is a discretionary authority to send the case to a hearing officer.

[00:46:02] Speaker 03:
And then in the next section it says, it uses the word shall again to say it shall go to a hearing officer.

[00:46:09] Speaker 03:
Then it uses the word shall further on to say they shall issue regulations.

[00:46:13] Speaker 03:
And it further says that those regulations shall be the same as the regulations issued by the Federal Labor Relations Authority.

[00:46:20] Speaker 03:
Excuse me.

[00:46:23] Speaker 00:
Unless necessary to comply with this statute.

[00:46:26] Speaker 03:
I think unless it's good cause.

[00:46:29] Speaker 00:
To implement the statute in compliance with, if it were otherwise plain, compliance with this plain provision of the statute would be about the best cause there is.

[00:46:39] Speaker 03:
Right.

[00:46:40] Speaker 03:
But it's the first two sentences in C1 that are in conflict with each other.

[00:46:44] Speaker 00:
One of them says... Well, they're not actually really in conflict because the board's authority is to hold a hearing.

[00:46:54] Speaker 00:
Maybe there's a kind of tension that you'd say the board's authority is to actually proceed even without a hearing and then this other provision says you must send it to a hearing.

[00:47:06] Speaker 03:
But then you have the common sense of why do you hold hearings?

[00:47:08] Speaker 03:
You hold hearings to resolve facts.

[00:47:10] Speaker 00:
There are no factual... In the case that we're talking about here, these termination questions, I don't see any facts anywhere in the picture.

[00:47:19] Speaker 00:
This is all legal analysis, so there's no point.

[00:47:22] Speaker 00:
But in the other cases, a little bit later, there might have been a fax issue.

[00:47:30] Speaker 03:
But again, certainly there's nothing alleged here that there's any fax here.

[00:47:33] Speaker 05:
Is the question of whether some of these provisions have a de minimis impact, is that a factual issue?

[00:47:41] Speaker 03:
I don't think it is, based on the analysis that the Board used.

[00:47:46] Speaker 03:
The question is whether or not, moving on to those cases, but if we get to those cases,

[00:47:52] Speaker 03:
What we're dealing with is a situation where the Capitol Police had proposed some changes to policies.

[00:48:00] Speaker 03:
Under Article 8 of the Collective Bargaining Agreement, the union has the right to bargain over those changes in policies.

[00:48:07] Speaker 03:
And if the proposal that the union makes is reasonably related to the changes that they've proposed, then you get, at least according to FLRA precedent, that's sufficient to get by the amendments argument.

[00:48:22] Speaker 03:
I mean, if it's de minimis, why make the change to begin with?

[00:48:28] Speaker 05:
All right, well, anything else?

[00:48:32] Speaker 05:
Okay, thank you.

[00:48:37] Speaker 05:
I don't know, Mr. Herrera, if you, we'll give you a minute here, if there's anything more.

[00:48:45] Speaker 05:
Oh, the union, yes, go ahead.

[00:48:55] Speaker 06:
Good morning.

[00:48:56] Speaker 06:
May it please the court?

[00:48:57] Speaker 06:
My name is Megan Michak and I'm here on behalf of the intervener, the union in this case, the Fraternal Order of Police, United States Capitol Police Labor Committee, addressing briefly the jurisdictional question.

[00:49:10] Speaker 06:
One area that has not been addressed by either party is the inherent unfairness that would amount if the department's interpretation of the statute were to stand.

[00:49:22] Speaker 06:
Specifically, the statute speaks to either the general counsel or the respondent being able to file a petition for judicial review.

[00:49:30] Speaker 06:
In this particular proceeding, with respect to the negotiability appeals not related to the CBA,

[00:49:37] Speaker 06:
the department or the union brought 25 issues to the board.

[00:49:41] Speaker 06:
12 of those were found to be negotiable, and those are the ones we're about here today.

[00:49:46] Speaker 06:
However, the 13 that weren't, the union did not have the right to appeal.

[00:49:50] Speaker 06:
So if the department's contention is adopted, then the department would be able to file and seek judicial review, but the union would have its own.

[00:49:59] Speaker 00:
Isn't this exactly the same disparity in

[00:50:06] Speaker 00:
ability to get judicial review involved, even if there's no jurisdiction of the negotiability ruling itself, but jurisdiction only over the enforcement, because who can bring the enforcement action?

[00:50:23] Speaker 06:
Can you bring that?

[00:50:24] Speaker 06:
We cannot bring the enforcement action.

[00:50:26] Speaker 00:
So you're on the losing end of getting a court to look at things regardless.

[00:50:32] Speaker 06:
Except that with the

[00:50:35] Speaker 06:
The difference being that, as Mr. Ullman mentioned, it's not simply a petition for enforcement that would be the only enforcement mechanism.

[00:50:42] Speaker 06:
So in the instance where a proposal was found to be negotiable and the department refused to negotiate, the union would still also have the opportunity to file an unfair labor practice.

[00:50:55] Speaker 00:
But the 13 that you lost on?

[00:50:57] Speaker 00:
Correct.

[00:50:57] Speaker 00:
We could do nothing.

[00:50:58] Speaker 06:
They're gone.

[00:50:59] Speaker 06:
There is no mechanism whereby the union is not able to file an unfair labor practice against the Office of Compliance Board, obviously.

[00:51:07] Speaker 06:
The department did not negotiate over them, and the board concluded those proposals, and the board concluded that was fine because they were non-negotiable.

[00:51:14] Speaker 06:
So those proposals are gone.

[00:51:16] Speaker 05:
I'm not sure that I understand what you're saying.

[00:51:19] Speaker 05:
I mean, we have a statutory scheme here, whichever view you adopt of it, where there's no judicial review of a board decision

[00:51:30] Speaker 05:
that something is not negotiable.

[00:51:36] Speaker 06:
That's exactly correct.

[00:51:38] Speaker 06:
But what the department is attempting to do is to create a statutory scheme where it has the right to judicial review when the ruling is against it and not in its favor.

[00:51:49] Speaker 05:
And we believe that that is unfair because, again... Could you have a negotiability petition by the employer saying that the union had refused to negotiate

[00:52:01] Speaker 06:
I believe that the statutory scheme would allow for that, but I'm not sure as a practical matter that that would be a scenario that would ever occur, frankly, as the union were typically.

[00:52:14] Speaker 05:
I'm not sure that the statute 7117 allows for that.

[00:52:19] Speaker 06:
I think the regulations that the Office of Compliance has enacted are a little bit broader

[00:52:26] Speaker 06:
in that they speak to whichever party is aggrieved.

[00:52:31] Speaker 06:
And again, that is traditionally going to be the union because if the employer is making a change and refuses to negotiate with the union, then there's potential for a negotiability petition.

[00:52:42] Speaker 06:
But if the employer doesn't make a change, there would be nothing to negotiate over no basis for the union to file or for the employer to file such a petition.

[00:52:51] Speaker 06:
If the union refuses to negotiate, the employer simply implements what it seeks.

[00:52:56] Speaker 06:
So there would be no practical, even if the statutory scheme allow for it, there would be no practical basis to permit or for an employer to file a negotiability appeal.

[00:53:06] Speaker 00:
Can I ask a question on the merits of the termination?

[00:53:10] Speaker 06:
Yes, I would like to turn to those.

[00:53:11] Speaker 00:
Thank you.

[00:53:12] Speaker 00:
Can you try to help me understand, put aside the technical correction issue?

[00:53:18] Speaker 00:
Most of the time that we spent discussing this had to do with 7121EF and 7122 and

[00:53:26] Speaker 00:
how even negotiating over a possible grievance procedure to reverse a termination decision would produce a conflict with something in those statutes.

[00:53:43] Speaker 00:
Since I don't entirely understand the argument that was made affirmatively on that, I guess I'm asking you to help me understand why you think that's wrong.

[00:53:53] Speaker 06:
Well, we believe that it's wrong for a number of different reasons.

[00:53:56] Speaker 06:
The department has indicated that one of the reasons that the statute is non-negotiable and inconsistent with law is because of the special rule on termination.

[00:54:06] Speaker 06:
Right.

[00:54:06] Speaker 06:
I want you to put that aside.

[00:54:07] Speaker 06:
Setting that aside.

[00:54:08] Speaker 06:
With respect to the 7121 question, which seems to be where the difficulty lies,

[00:54:16] Speaker 06:
we believe that there is another personnel system that's been, this falls squarely within the dictates of 7121E, which speaks to another personnel system being set up, and that that's exactly what has occurred here.

[00:54:31] Speaker 06:
There is another separate personnel system.

[00:54:33] Speaker 06:
This is not a situation like the cases that the department has relied on, where the employees are executive branch employees who are exempted from Title V. These are

[00:54:43] Speaker 06:
these are the legislative branch employees to whom some of Title V's laws apply.

[00:54:50] Speaker 06:
So we believe that the provisions of 7121 expressly contemplate what has happened here, the creation of a personnel system for these legislative branch employees who can then enjoy the benefits of that, and that the statute in using the language, if any, when it talks about the choice between

[00:55:12] Speaker 06:
going to a merit system protection act or protection board type procedure or going through the negotiated grievance procedure, you know, we believe that the statute specifically contemplates what happened here, which is a situation where a personnel system was enacted, but there was no similar merit systems, no procedure similar to a merit systems protection board.

[00:55:35] Speaker 05:
And we've also cited to... Well, you can, you say that you can grieve a term.

[00:55:45] Speaker 05:
And then what happens about judicial review?

[00:55:47] Speaker 06:
So then the judicial review would follow along the same procedures as 7121E and... So you're saying 7121 allows for judicial review of the arbitrary decision?

[00:55:57] Speaker 06:
Under the exact same circumstances that any other federal employee who's covered by 7121 would have judicial review.

[00:56:04] Speaker 05:
Yes.

[00:56:05] Speaker 05:
So we don't believe... I'm not sure that I understand that answer because for federal employees the judicial review is provided for

[00:56:14] Speaker 05:
as an alternative, you can get judicial review of the arbitrator's decision in this court.

[00:56:19] Speaker 05:
Are you saying that that same provision applies here or is it a comparable provision or what?

[00:56:24] Speaker 06:
In the statutory scheme that's been set up by the Congress for these employees, the department has been able to file exceptions with the Office of Compliance Board of Directors and there is no judicial review of those exceptions.

[00:56:40] Speaker 05:
So there's no judicial review of the arbitrator's decision?

[00:56:43] Speaker 06:
No.

[00:56:44] Speaker 05:
Except, again, except as... Yes, there's no judicial review.

[00:56:47] Speaker 06:
I'm sorry.

[00:56:48] Speaker 06:
Yes, there is no judicial review except in the scenario where there's an unfair labor practice involved, which, again, gets you through the unfair labor practice procedure.

[00:57:01] Speaker 00:
So his premise is right, that here, absent an unfair labor practice, the arbitrator can reinstate

[00:57:12] Speaker 00:
a officer that the police board has terminated and the courts can't put their, can't review that?

[00:57:21] Speaker 06:
Again, yes, except that because the Congress did not enact an MSPB type proceeding in this particular procedure, the employees only have the ability to go through the negotiated grievance procedure.

[00:57:39] Speaker 06:
So that

[00:57:41] Speaker 06:
piece of the judicial review, the MSPB process, would not be available to these employees because the MSPB process has not been enacted.

[00:57:49] Speaker 06:
The answer to your question is yes, that's correct, but it is a function of the fact that the Congress did not put these employees in the MSPB process.

[00:58:02] Speaker 05:
Well, but they say that's an argument against finding this to be a negotiable subject.

[00:58:09] Speaker 05:
so that the process is limited to the process provided in the statute, which is decision by the chief of police and then review by this board.

[00:58:23] Speaker 05:
And the board's decision can't be overturned, effectively overturned through the grievance procedure.

[00:58:34] Speaker 05:
Why doesn't that make some sense?

[00:58:36] Speaker 06:
Because the statute, that's not what the statute says.

[00:58:39] Speaker 06:
The statute only, and again, I know you instructed not to talk about the special rule on terminations, but the special rule on terminations only deals with the pre-termination issue.

[00:58:49] Speaker 06:
The special rule on terminations doesn't require an employer or the department, the chief of police to terminate an employee.

[00:59:00] Speaker 06:
The statute provides that if the chief wants to terminate somebody, they have to take it to the board,

[00:59:06] Speaker 06:
the board has to approve it or take no action.

[00:59:08] Speaker 06:
And then after that happens, the statute's very clear, the chief may terminate the employee.

[00:59:13] Speaker 06:
It is a discretionary act up until the moment of the termination that it is the chief that is the one that is terminating the employee.

[00:59:21] Speaker 05:
Again... Sure, but the result of that is that his decision that somebody needs to be terminated because that person is a threat to public safety can be overturned by an arbitrator without any further review.

[00:59:36] Speaker 06:
The arbitrator's decision is the review in this particular circumstance.

[00:59:44] Speaker 06:
Again, the department acts as though the arbitrator is always going to rule in the favor of the employee.

[00:59:52] Speaker 06:
An arbitrator is a neutral.

[00:59:55] Speaker 06:
That is not always going to happen.

[00:59:57] Speaker 06:
And so the arbitrator, again, acts as a review as a check and a balance on the department.

[01:00:03] Speaker 06:
From the union's perspective,

[01:00:04] Speaker 06:
If the department gets what it wants, there will be no check on the chief's ability to terminate an employee for any reason under any circumstance.

[01:00:15] Speaker 05:
And the arbitrator, again, from a fairness perspective... Well, that's not perhaps so startling because FBI employees, for example, under the statutory scheme, get any judicial review.

[01:00:25] Speaker 05:
They get the internal Justice Department procedure and that's the end of it.

[01:00:29] Speaker 06:
And they have, because they have been under the statute, very specifically accepted from that particular right.

[01:00:37] Speaker 06:
The cases, the instances where the courts have found that there is no right to negotiate a grievance procedure that contains an arbitration provision for terminations are instances where the statute says upfront that these decisions may be made without applicability of other laws, that these decisions may be made without considering other laws.

[01:00:58] Speaker 06:
whereas the statute in this case specifically requires the chief to act in conformance with other laws and regulations.

[01:01:06] Speaker 06:
So the statutory scheme is entirely different for those employees.

[01:01:14] Speaker 02:
In your view, then, who has the final decision, the chief or the arbitrator?

[01:01:20] Speaker 06:
We believe that the chief is the individual who makes the decision, but under the negotiated grievance procedure, if the matter is taken to arbitration, the union's proposals are that that decision would be final and binding, again, subjected to any other unfair labor practices or anything else that may come up under the statutory scheme to allow challenge there too.

[01:01:45] Speaker 02:
The agency's argument is that the chief of police is the one who should make this decision.

[01:01:52] Speaker 02:
and that it's within the chief of police's discretion to make that decision as a final decision?

[01:01:58] Speaker 06:
I'm not certain that the department is arguing that the chief is the final decision-maker.

[01:02:03] Speaker 06:
I think the department is arguing that the board is the final decision-maker and that there is no reviewability of the board's decision.

[01:02:14] Speaker 05:
Thank you.

[01:02:15] Speaker 05:
I think that's a good word.

[01:02:18] Speaker 05:
Is that your pronounce your name?

[01:02:21] Speaker 05:
Michak, sir.

[01:02:23] Speaker 05:
Mr. Herrera will give you a minute here.

[01:02:26] Speaker 01:
Thank you, Your Honor.

[01:02:27] Speaker 01:
Just wanted to make three points a little bit clearer here.

[01:02:31] Speaker 01:
Ms.

[01:02:31] Speaker 01:
Vechek said that the arbitrator was the check on that decision, but the decision is that decision of the board.

[01:02:38] Speaker 01:
The board is not subject to the Congressional Accountability Act, and it would be ridiculous to have them check something that they have no jurisdiction to do.

[01:02:47] Speaker 01:
Rather, the check of the chief's decision is the Capitol Police Board.

[01:02:50] Speaker 01:
the security arm of the legislative branch employees that's made up of the house sergeant-at-arms, the senate sergeant-at-arms, and the architect of the Capitol.

[01:02:59] Speaker 01:
That is the body best suited to make sure that the chief's decision is consistent with law.

[01:03:04] Speaker 01:
Second, I didn't hear either Megan, Ms.

[01:03:07] Speaker 01:
Michak, or Mr. Ullman talk about the Seventh Circuit, DC Circuit, or Ninth Circuit decision, which clearly says that 7121 is a limitation

[01:03:18] Speaker 01:
on the grievance process, excluding terminations from that action.

[01:03:22] Speaker 01:
What I hear them saying, not relying on any case law, is that it's an expansive version.

[01:03:26] Speaker 01:
That's just not consistent with law.

[01:03:29] Speaker 05:
Okay, thank you.

[01:03:31] Speaker 05:
So let's turn to the second segment now, Mr. Herrera.

[01:03:38] Speaker 05:
Oh, I'm sorry, Mr. Allman.

[01:03:41] Speaker 05:
I think I'm first on this one.

[01:03:48] Speaker 03:
Some of this I think we've already covered, but on this segment we're talking about whether the office erred by not referring the negotiability petitions to a hearing officer and what standard of review.

[01:04:04] Speaker 05:
I don't understand how you can argue that the APA standard of review doesn't apply to enforcement decisions.

[01:04:11] Speaker 05:
We have a situation here where, according to you, there is judicial review

[01:04:18] Speaker 05:
of the enforcement decision specifically provided here in the statute, there is no provision of the statute which says that the ABA standard doesn't, APA standard doesn't apply and that the APA standard is the default standard which applies generally.

[01:04:36] Speaker 03:
Why don't we reach that result?

[01:04:39] Speaker 03:
Well, the argument is premised on the fact that Congress did not grant direct review of the board's decision on negotiability.

[01:04:47] Speaker 05:
No, but according to you, it granted review of the enforcement decision.

[01:04:52] Speaker 05:
And so when we're reviewing the enforcement decision, why don't we apply the APA standard?

[01:04:58] Speaker 03:
And as I said, we did reference the National Supreme Court's decision, the National Labor Relations case, which is that... Lead them in time.

[01:05:06] Speaker 05:
But that involved a situation where there was no provision for judicial review.

[01:05:10] Speaker 05:
Here there is a provision for judicial review, even under your own view.

[01:05:15] Speaker 03:
And I think it really goes back to the

[01:05:17] Speaker 03:
whole idea of the Congressional Accountability Act.

[01:05:19] Speaker 03:
The idea of the act was to provide some rights to employees in the legislative branch and also to place some obligations on the employing offices, but it did so in a way as to limit executive and judicial interference with what is primarily Congress's decision regarding their own

[01:05:41] Speaker 03:
agencies and offices.

[01:05:43] Speaker 03:
And so they very narrowly define what judicial review is going to be.

[01:05:46] Speaker 03:
They very narrowly define what... Where do they narrowly define what judicial review is going to be?

[01:05:52] Speaker 03:
Well, I think, as Morris cites, I mean, 14, if you go through the jurisdictional section... Do you mean to say narrowly defined the standard of review?

[01:06:04] Speaker 00:
Or just the circumstances in which there would be such a thing as judicial review?

[01:06:07] Speaker 05:
The circumstances under which there is judicial review, yes.

[01:06:09] Speaker 05:
Okay, but we have a situation here where

[01:06:12] Speaker 05:
you say there is judicial review of the enforcement decision.

[01:06:16] Speaker 05:
Under your view, the statute specifically provides for review of the enforcement decision.

[01:06:22] Speaker 05:
So why don't we apply the APA standard?

[01:06:27] Speaker 03:
I mean, I think what we're seeking is the court enforcement order.

[01:06:30] Speaker 03:
I mean, there isn't really an enforcement decision here.

[01:06:34] Speaker 03:
You're going to make the enforcement decision.

[01:06:36] Speaker 03:
Well, right.

[01:06:36] Speaker 05:
But in the context of the HEP, we're going to review

[01:06:40] Speaker 05:
the board's decision.

[01:06:42] Speaker 05:
There is review of the board's decision about negotiability when they refuse to comply and you seek an enforcement petition.

[01:06:52] Speaker 05:
What's the basis for saying that Liedemann-Kind standard applies where there's judicial review provided in the statute?

[01:06:59] Speaker 03:
And again, it really relates back to the theory where Congress has not granted review, then the review tends to be more limited.

[01:07:07] Speaker 05:
So to record...

[01:07:10] Speaker 03:
Well, when you're talking about enforcement of a board order, the first question is whether they have complied with the order.

[01:07:19] Speaker 03:
And that's primarily the issue before the court.

[01:07:21] Speaker 03:
And it's our contention that that is the primary issue unless you reach the greater standard that's set forth in the Supreme Court case.

[01:07:29] Speaker 00:
So what other situation is there that you may want to analogize to where a agency order is not

[01:07:40] Speaker 00:
directly reviewable by the loser, but the agency is authorized by statute to come to court and enforce the order.

[01:07:49] Speaker 00:
And in that scenario, I think your position is there's some analogy that, or there's some other situation, some case law that says in a situation like that, the review when the agency comes to enforce is with a very light hand, whatever that may mean.

[01:08:06] Speaker 00:
And lead them isn't that because

[01:08:08] Speaker 00:
There actually is no authorized review.

[01:08:12] Speaker 00:
Lead them aside.

[01:08:13] Speaker 00:
Can you give me an example of that scenario?

[01:08:15] Speaker 03:
The other scenario is actually a review of arbitration decisions.

[01:08:19] Speaker 03:
So arbitration decisions are not directly reviewable by the court, but they are reviewable in an unfair labor practice case because the only way a party can enforce an arbitration decision under the federal relations statute is by filing an unfair labor practice.

[01:08:38] Speaker 03:
Those cases go through the process and eventually come to the court.

[01:08:42] Speaker 05:
In fact, this court has unfair labor practice being the refusal to comply with the arbitrator's decision.

[01:08:47] Speaker 03:
Correct.

[01:08:47] Speaker 03:
Correct.

[01:08:48] Speaker 03:
In fact, this court has a case pending next month.

[01:08:51] Speaker 03:
On October 2nd, the oral argument is scheduled on that very scenario.

[01:08:54] Speaker 03:
It involves a termination and an arbitrator overturned the termination of the Capitol Police.

[01:09:01] Speaker 03:
An unfair labor practice was filed.

[01:09:04] Speaker 03:
that saying that it was unfair for them to not implement that order, that went to the board, and now it's to the court.

[01:09:12] Speaker 03:
So the idea that there is no review of the decision regarding arbitrations, there is review, but it is more limited.

[01:09:19] Speaker 03:
And where the D.C.

[01:09:21] Speaker 05:
Circuit... It's back to the discussion we were having earlier.

[01:09:24] Speaker 05:
So what you're saying is that the arbitrator's decision is subject to judicial review under the lead-in-the-kind

[01:09:33] Speaker 05:
Right.

[01:09:34] Speaker 03:
And the DC Circuit, I think, is phrased a little bit different.

[01:09:37] Speaker 05:
I think they say if it's contrary to clearly established law, that the court has the... So 7121 doesn't preclude judicial review of the arbitrator's decision under that standard.

[01:09:52] Speaker 03:
Correct.

[01:09:52] Speaker 03:
Correct.

[01:09:54] Speaker 03:
It's the clearly established law standard is what the DC Circuit uses.

[01:09:57] Speaker 00:
So for instance... Which is the best DC Circuit case on that?

[01:10:02] Speaker 00:
unfair labor practice for refusing to comply with an unreviewable arbitration decision?

[01:10:09] Speaker 03:
I don't have it here in front of me, but I can get it for you.

[01:10:12] Speaker 03:
I believe it's cited in our briefs.

[01:10:16] Speaker 03:
But that's the standard that they use, and I think it's a sensible standard to use.

[01:10:21] Speaker 03:
So that's what we analogize this to, is that

[01:10:24] Speaker 03:
Again, the arbitration decision itself is not directly reviewable, but it is reviewable in an enforcement action.

[01:10:30] Speaker 03:
But the court doesn't go back to deciding whether or not the exceptions were properly decided.

[01:10:37] Speaker 03:
The only review is whether the party can establish that the arbitration's order is contrary to clearly established law.

[01:10:50] Speaker 03:
I know this is a very convoluted process.

[01:10:55] Speaker 03:
Getting back to the other issue here, which is, I guess, the hearing officer issue.

[01:11:06] Speaker 03:
I don't know whether we fully flesh that out or not, but I think that, again, I think in the end it has to be applied in a sensible manner.

[01:11:14] Speaker 03:
And if there are no factual issues and the board has the discretion to expedite this proceeding by simply deciding what's your view.

[01:11:23] Speaker 05:
What's your view if there are factual issues?

[01:11:25] Speaker 05:
Is your view that under by the incorporation of 7117 that the decision whether to refer those factual issues to a hearing officer is discretionary?

[01:11:38] Speaker 05:
Yes, I believe it is.

[01:11:39] Speaker 03:
And I think it's incumbent upon the party to identify what the factual issues are and to ask the board to refer them to a hearing officer.

[01:11:47] Speaker 03:
If you don't, just like in a district court, if you don't tell the court that there are any factual issues, you can't expect them to

[01:11:54] Speaker 03:
to say we're going to have a trial on it.

[01:11:56] Speaker 03:
So if you can see.

[01:11:58] Speaker 00:
But that's a separate point, I think, from the point that Judge Dyck was just asking you about, that putting aside the 1351, what is it, D, command to make regulations and to follow FLR regulations unless there's good cause for doing something different or whatever the language is.

[01:12:16] Speaker 00:
I think Judge Dyck's point is that if you look at 1351 C1 itself, the one with the hearing sentence in it,

[01:12:24] Speaker 00:
It also has a sentence referring to 7117, which would suggest that the board has the same authority the FLRA has, which is an authority to do business in its discretion without a hearing.

[01:12:39] Speaker 00:
And that creates an internal single paragraph tension ambiguity that means that there is no clear and unambiguous mandate and therefore

[01:12:53] Speaker 00:
a reasonable thing to do is to follow the discretion.

[01:12:58] Speaker 03:
I think that's correct.

[01:13:00] Speaker 03:
I think that's basically what we argued.

[01:13:02] Speaker 03:
Certainly under both the statute and under the regulation they have that discretion.

[01:13:06] Speaker 00:
And it can be abused if there's a factual question.

[01:13:10] Speaker 03:
Right, but normally you have to bring it to the board's attention that yes there are factual issues and you should refer this to a hearing office.

[01:13:19] Speaker 05:
where there's a factual issue.

[01:13:21] Speaker 05:
Do you know whether the tradition there is to refer to a hearing officer for the resolution of the fact issue?

[01:13:28] Speaker 03:
I don't know that.

[01:13:28] Speaker 03:
I mean, reading the statute, it seems that the preferred procedure is the extradited procedure, which is the authority decides the negotiability issues.

[01:13:38] Speaker 03:
In many cases, the authority, their regulations are a little different in that they really only decide negotiability issues when

[01:13:46] Speaker 03:
The question is whether it's legal, whether the proposal is contrary to law.

[01:13:51] Speaker 03:
So in other words, that the department cannot implement it.

[01:13:54] Speaker 03:
So they don't really decide bargaining obligation questions on their own in negotiability decisions.

[01:14:10] Speaker 05:
Thank you.

[01:14:12] Speaker 05:
I guess we'll hear from Mr. Bichang.

[01:14:25] Speaker 06:
Thank you, Your Honors.

[01:14:26] Speaker 05:
I'll be very brief.

[01:14:28] Speaker 05:
So do we now agree that there is some review of an arbitrator's decision on a termination under the standard that has been described as applicable in the D.C.

[01:14:39] Speaker 06:
Circuit?

[01:14:39] Speaker 06:
Again, and I apologize that I was not clear on this as I was up here earlier, under certain circumstances there is the ability for judicial review as indicated in 7121.

[01:14:50] Speaker 06:
It's simply the judicial review that is subjected to this very

[01:14:55] Speaker 06:
delicate or light standard that we talked about, or is it inconsistent with law?

[01:15:00] Speaker 06:
And I apologize that I wasn't articulating that clearly earlier.

[01:15:04] Speaker 00:
And that's through a filing of an unfair labor practice for refusal to comply with an arbitrator's decision?

[01:15:10] Speaker 06:
Yes.

[01:15:11] Speaker 06:
And as Mr. Ullman said, there are actually two cases that got to this court on that, through that

[01:15:19] Speaker 06:
through that practice or through that mechanism is the right word, currently pending before you right now.

[01:15:25] Speaker 06:
So those came through that mechanism, not kind of more directly?

[01:15:29] Speaker 06:
Not through the negotiability process or any kind of direct judicial review, no.

[01:15:34] Speaker 00:
The actual unfair labor practice?

[01:15:36] Speaker 06:
Yes.

[01:15:37] Speaker 00:
Accusation for

[01:15:38] Speaker 00:
non-compliance with an arbitration decision.

[01:15:40] Speaker 06:
Yes sir, which resulted in a complaint and a decision and then a petition for judicial review and a petition for enforcement of those decisions.

[01:15:48] Speaker 05:
What are the legal issues in those cases?

[01:15:50] Speaker 06:
Those cases both involve employees who were terminated and who arbitrators ordered returned to work and who the department has refused to return to work.

[01:16:00] Speaker 05:
Does everybody agree

[01:16:03] Speaker 05:
that the clearly contrary to law standard applies, or is there a dispute there about what standard applies?

[01:16:09] Speaker 06:
I believe there will likely be a dispute as to what standard applies.

[01:16:12] Speaker 05:
And what's the dispute?

[01:16:15] Speaker 06:
I believe that the department's position, and again, is that the process, because they have filed a petition for judicial review of the unfair labor practice,

[01:16:26] Speaker 06:
It is not the contrary to law standard.

[01:16:29] Speaker 06:
It's the applicable standard under 1407D for the judicial review district.

[01:16:37] Speaker 05:
The APA standard.

[01:16:38] Speaker 00:
Correct.

[01:16:39] Speaker 00:
And just again, just to make sure I understand, in those cases, the arbitrator reversed the termination.

[01:16:46] Speaker 00:
And then somebody filed something with the compliance board saying there's an unfair labor practice.

[01:16:52] Speaker 00:
And the compliance board said,

[01:16:54] Speaker 00:
No, there isn't.

[01:16:55] Speaker 00:
Yes, there is.

[01:16:56] Speaker 06:
In both cases that are currently pending before the court, the Office of Compliance Board of Directors concluded that there was an unfair labor practice and that the department had failed to comply with an arbitrators award that was reviewed by the Office of Compliance and affirmed.

[01:17:14] Speaker 06:
So those matters are both pending before this Court and the Department has sought judicial review of the orders that the employees be returned to work and the Office of Compliance has filed a petition for judicial enforcement of the same.

[01:17:29] Speaker 05:
And the Compliance Office is arguing that the APA stands in the court?

[01:17:34] Speaker 06:
The Compliance Office is arguing that the

[01:17:39] Speaker 06:
APA standard applies to the petition for judicial review and that the lighter, the other standard applies to the compliance with law standard applies to the petition for enforcement.

[01:17:55] Speaker 04:
Anything else?

[01:17:57] Speaker 06:
No, thank you.

[01:18:01] Speaker 05:
Mr. Herrera?

[01:18:12] Speaker 01:
Your Honors, the judicial review standard, I think, is pretty clear.

[01:18:16] Speaker 01:
If you look at section 1407 of the Congressional Accountability Act, the title is Judicial Review of Board Decisions and Enforcement.

[01:18:24] Speaker 01:
Under that standard of review, that is found at section D of 1407D and lays out the standard to the extent necessary for decisions and proceedings commenced under subsection A1 and, when presented, an enforcement action.

[01:18:39] Speaker 01:
The court shall decide all relevant questions of law and interpret constitutional and statutory provisions.

[01:18:44] Speaker 05:
I always find your argument about the when presented language to be particularly convincing.

[01:18:50] Speaker 05:
It seems to me that if you're going to argue for the APA standard, it has to be because that's the default standard that applies when there's no standard provided.

[01:19:00] Speaker 01:
I will start with the Congress Accountability Act.

[01:19:02] Speaker 01:
I think that's what Congress meant when it said that.

[01:19:04] Speaker 01:
My default is the APA standard.

[01:19:06] Speaker 00:
When presented sure sounds like it means

[01:19:09] Speaker 00:
the issues that were about a legal question or a factual question, that is the court's not supposed to decide those if nobody is presenting those issues.

[01:19:19] Speaker 00:
Not that you sort of wipe out this reference to subsection A1 so that it includes A2 as well.

[01:19:31] Speaker 00:
That would be a very peculiar way to do that.

[01:19:36] Speaker 01:
The second argument was that the purpose of the... How do you distinguish the arbitration decisions in the DC circuit that compliance relies on?

[01:19:49] Speaker 01:
Is that Lighton v. Kine?

[01:19:51] Speaker 05:
No, no.

[01:19:53] Speaker 05:
Apparently, in the context of arbitration, they're applying a standard similar to the Kine standard.

[01:20:00] Speaker 05:
Those cases, as I understand, come up as unfair labor practice charges for failure to comply with an arbitration decision, and at least as the cases are described in those cases, they're applying a very deferential standard of review to the arbitrator's decision that's implicated.

[01:20:20] Speaker 01:
Well, number one, if you look at negotiability disputes and enforcement actions, they apply the APA standard.

[01:20:27] Speaker 01:
So they appear to be carving out a separate process for a separate cause of action that doesn't seem to follow that framework.

[01:20:36] Speaker 01:
Same with leading versus kind.

[01:20:38] Speaker 01:
The review of awards under leading versus kind is very limited.

[01:20:42] Speaker 01:
Otherwise, people would always be raising leading versus kind to get jurisdiction.

[01:20:46] Speaker 01:
It's when there are statutory violations, when an administrative agency has exceeded its statutory authority.

[01:20:54] Speaker 01:
It's not a blanket review to get judicial review.

[01:20:58] Speaker 01:
We think in terms of the decision here, there is no board decision that went through the proper process.

[01:21:07] Speaker 01:
And so the board exceeded its authority by issuing a decision in the first instance.

[01:21:11] Speaker 01:
This is the hearing officer point?

[01:21:13] Speaker 01:
Yes.

[01:21:14] Speaker 01:
Congress said how it wanted to handle it.

[01:21:16] Speaker 01:
It was explicit in how it wanted to handle it.

[01:21:19] Speaker 05:
And that really does trump any discretion that they're giving to the... What's the evidence that in Title II, enacting Title II,

[01:21:27] Speaker 05:
that Congress wanted to change the rule about discretionary hearings under 7117.

[01:21:36] Speaker 01:
It is the language that they specifically adopted under 1351C1.

[01:21:44] Speaker 01:
That language must mean something because they also repeated it in 1351C2.

[01:21:50] Speaker 01:
Language could mean when there's a hearing you refer it to a hearing

[01:21:54] Speaker 01:
But it doesn't say that, Your Honor.

[01:21:56] Speaker 01:
I mean, if they said shall and it shall follow the procedures of B through H, that doesn't mean they get a discretion.

[01:22:04] Speaker 01:
It means that's what Congress envisioned these to do.

[01:22:08] Speaker 01:
If that's not what the office compliance wants them to do, they can petition the Congress to change that.

[01:22:14] Speaker 01:
But that language is in there for a reason and we have to give meaning to congressional language.

[01:22:20] Speaker 01:
We can't just ignore it.

[01:22:23] Speaker 05:
Okay, I think we've got your point.

[01:22:25] Speaker 05:
Is there anything else?

[01:22:26] Speaker 05:
No, you're on.

[01:22:26] Speaker 05:
Thank you.

[01:22:27] Speaker 05:
Okay, thank you.

[01:22:29] Speaker 05:
Mr. Olin?

[01:22:32] Speaker 05:
Anything further?

[01:22:39] Speaker 03:
I guess I would like to go back to Judge Taranto's question about the DC Circuit cases.

[01:22:46] Speaker 03:
I think the best cases we cited, it's in our brief in 2018-1502,

[01:22:52] Speaker 03:
where we argue the standard of review and we go through the D.C.

[01:22:56] Speaker 03:
standard, the contrary to the law standard.

[01:22:58] Speaker 03:
And there's a number of cases that are... You're not going to actually tell me the D.C.

[01:23:03] Speaker 00:
circuit came in safe?

[01:23:07] Speaker 03:
I can tell you the best case in here is the U.S.

[01:23:13] Speaker 03:
Department of Justice versus FLRA, 961F2, 1339, 1333.

[01:23:23] Speaker 04:
Thank you.

[01:23:27] Speaker 05:
All right.

[01:23:28] Speaker 05:
Thank you.

[01:23:28] Speaker 05:
So let's turn now to the third segment where Mr. Herrera is going to go first.

[01:23:35] Speaker 05:
And that has to do with the other, I think it's 12 proposals, maybe it's 11 that the Capitol Police say are nonnegotiable.

[01:24:16] Speaker 05:
Do you agree that proposals about outside employment generally are negotiable?

[01:24:34] Speaker 05:
No.

[01:24:35] Speaker 01:
Why not?

[01:24:36] Speaker 01:
Because they don't govern the terms and conditions of employment.

[01:24:44] Speaker 01:
In this case,

[01:24:46] Speaker 05:
The Capitol Police has provisions... Isn't it true that under the FLRA outside employment issues are negotiable?

[01:24:59] Speaker 01:
They are, but that has not been challenged to the Federal Circuit or to the D.C.

[01:25:03] Speaker 01:
Circuit.

[01:25:04] Speaker 01:
That's the FLRA's position.

[01:25:06] Speaker 00:
While you work here, you may not do the following other things.

[01:25:11] Speaker 00:
That really doesn't have to do with the conditions of the while you work here employment?

[01:25:16] Speaker 01:
No, because it has nothing to do with your condition of employment.

[01:25:20] Speaker 01:
It doesn't govern how you do your job, what you do.

[01:25:24] Speaker 01:
We're just precluding you from doing something that conflicts with your duties as a Capitol Police officer.

[01:25:30] Speaker 01:
So can you imagine a Capitol Police officer that is in a bar

[01:25:35] Speaker 01:
serving drinks and, uh, you know, someone recognized him as a police officer.

[01:25:39] Speaker 01:
We don't want to be in that position where, because he's a Capitol police officer.

[01:25:44] Speaker 00:
Well, that may be, that may be an argument for why, um, this would really be that in a negotiation, you can say, absolutely not.

[01:25:54] Speaker 00:
We are not going to get into a process of figuring out, you know, what the primary activity is, is of the owner of the bar.

[01:26:01] Speaker 00:
And, um, um,

[01:26:03] Speaker 00:
And we're not going to make a fact-specific inquiry into the risk of favoritism with respect to some company that's under contract with the police board.

[01:26:15] Speaker 00:
All those seem like quite reasonable positions to advance, but why does that mean they're non-negotiable?

[01:26:22] Speaker 01:
I don't think they fit the definition of a condition of employment.

[01:26:26] Speaker 01:
It's what you can't do.

[01:26:28] Speaker 00:
Has some authority, the FLRA, some court or something

[01:26:32] Speaker 00:
made what seems, this point that you're making, that what you do on your own time is simply not a condition of employment.

[01:26:40] Speaker 00:
I don't know that that has been developed other than beyond... Has anybody said anything about it at all?

[01:26:46] Speaker 01:
I have not looked at that, Your Honor, because our position here is we didn't change our outside duties.

[01:26:52] Speaker 01:
That's a different point.

[01:26:53] Speaker 01:
Yeah.

[01:26:54] Speaker 01:
So that issue I have not looked at thoroughly.

[01:26:56] Speaker 01:
I remember reading some FLRA cases where it said it was.

[01:26:59] Speaker 01:
I think the prior FLRA cases said it wasn't.

[01:27:02] Speaker 01:
So there was a dispute as to whether terms and conditions of employment is covered by outside employment.

[01:27:08] Speaker 01:
For our purposes, though, in terms of the proposals D, E, F, G, and H, there was no change in the condition of employment.

[01:27:16] Speaker 01:
So we start with the statute under 7117.

[01:27:20] Speaker 01:
That's what gives us the authority for the duty to bargain.

[01:27:24] Speaker 01:
Under that statute, the matters are not negotiable if they're inconsistent with law.

[01:27:30] Speaker 05:
Well, I think what they're arguing, if I understand correctly, at least as to some of these, that they agree there was no change in the language, but it was a change to a directive from a standard operating procedure.

[01:27:44] Speaker 01:
And what's the import of that?

[01:27:46] Speaker 01:
A directive and a standard operating procedure both apply equally to employees.

[01:27:51] Speaker 01:
So what they have to do, or what they should be doing under the statute, and this is the case law interpretation

[01:27:57] Speaker 01:
Prior to implementing a change of conditions of employment, an agency is required to provide the exclusive representative with notice of the change and an opportunity to bargain over those aspects of the change that are within the duty to bargain if the change has more than a de minimis effect.

[01:28:14] Speaker 01:
But an agency is not required to bargain over proposals that go beyond the scope of the proposed change or over the matter

[01:28:22] Speaker 01:
that is a condition on an agency bargaining proposals that are outside the scope of the bargaining.

[01:28:28] Speaker 01:
So the test really starts from the very beginning.

[01:28:31] Speaker 01:
What is the duty to bargain?

[01:28:33] Speaker 01:
Has there been a change in condition of employment?

[01:28:36] Speaker 05:
With respect to these various proposals, my impression was that, as to a couple of them, there were some slight differences between the directive and the standard operating procedure.

[01:28:47] Speaker 05:
Am I correct about that?

[01:28:49] Speaker 01:
There is.

[01:28:49] Speaker 01:
And let's go through the specific ones, Your Honor, if we might.

[01:28:52] Speaker 01:
Proposal D is exactly the same.

[01:28:55] Speaker 01:
If you look at appendix 812 and 842.

[01:28:58] Speaker 01:
We can look that up.

[01:29:01] Speaker 01:
D is the same.

[01:29:02] Speaker 01:
E is the same.

[01:29:03] Speaker 01:
D is the same.

[01:29:04] Speaker 01:
E is the same.

[01:29:05] Speaker 01:
F is the one that's just a slight difference.

[01:29:07] Speaker 01:
Employments and establishments where the primary business of the establishment is serving alcohol beverages.

[01:29:14] Speaker 01:
What it was previously was employment in establishments where alcohol beverages are served for consumption on the premises.

[01:29:23] Speaker 00:
So as I understand it, D, E, G, and H, you have a position.

[01:29:27] Speaker 00:
These really are quite the same.

[01:29:29] Speaker 00:
There is something of a dispute about F, about whether that's really a change.

[01:29:38] Speaker 00:
Correct.

[01:29:38] Speaker 00:
And this is just on the change issue.

[01:29:40] Speaker 00:
Then there's a separate set of concerns about de minimis, which have to do mostly with proposals other than D through H. Correct.

[01:29:49] Speaker 01:
So G is the same too?

[01:29:51] Speaker 01:
D, E, F, G, yes.

[01:29:55] Speaker 01:
F is the only one that has a difference as far as we're concerned.

[01:30:08] Speaker 05:
And then with the time and attendance proposals, you're saying there's no change also, right?

[01:30:14] Speaker 05:
Right, the premise... But there is a change in the sense that it used to be done by paper, right, and now it's

[01:30:21] Speaker 01:
by computer.

[01:30:22] Speaker 01:
Not necessarily, Your Honor.

[01:30:23] Speaker 01:
If you look at the 2011 directive by the department, employees had always had the obligation to clock in and out.

[01:30:31] Speaker 01:
That was not changed in the new directive.

[01:30:33] Speaker 05:
Right.

[01:30:34] Speaker 05:
But now they have to use a computer or other mobile device when they're away from the duty station.

[01:30:40] Speaker 01:
Sure.

[01:30:41] Speaker 01:
You may.

[01:30:41] Speaker 01:
Right?

[01:30:42] Speaker 01:
Right.

[01:30:42] Speaker 01:
But again, keep in mind, we have Capitol Police officers that work on the Hill.

[01:30:46] Speaker 01:
It's rare that they're going to be away from their duty station.

[01:30:49] Speaker 01:
But if they do, we've given them a tool to use, which is the virtual clock.

[01:30:54] Speaker 01:
But the point is that you have to... It seems to me there's a change.

[01:30:58] Speaker 05:
It may be de minimis or whatever, but there is a change.

[01:31:02] Speaker 01:
There is a change, Your Honor.

[01:31:03] Speaker 01:
The question though is, does the proposal go to the scope of that change?

[01:31:08] Speaker 01:
So let's take a look at the proposals.

[01:31:11] Speaker 01:
Proposal P,

[01:31:13] Speaker 01:
says that the department will provide sufficient time on a daily basis for employees to complete their time in attendance responsibilities on a daily basis.

[01:31:21] Speaker 01:
There's no change there.

[01:31:22] Speaker 01:
They had that responsibility under the old process.

[01:31:26] Speaker 01:
They have that same responsibility under the new process.

[01:31:30] Speaker 01:
So there's not been a change to that aspect of the proposal.

[01:31:35] Speaker 01:
If you look at proposal R, employees may request extensions of any timelines under this directive.

[01:31:41] Speaker 01:
Well, the only timeline I can see under the directive is that people had to certify their time by Monday instead of the old time by Wednesday.

[01:31:50] Speaker 01:
So I don't see that that's a change or that is a change.

[01:31:53] Speaker 01:
It's a de minimis change.

[01:31:55] Speaker 01:
With respect to Proposal S, if for any reason an employee is physically or otherwise unable to use the computer programs required under this directive, it's the same computer program.

[01:32:06] Speaker 01:
The work brain program has not changed.

[01:32:10] Speaker 01:
his or her time attempts, the employee is encouraged to contact his or her first-line supervisor to discuss reasonable accommodations.

[01:32:18] Speaker 01:
So the Capitol Police has had employees clocking in and clocking out since as long as I've been there, which is in 2002.

[01:32:27] Speaker 01:
That has always been a process.

[01:32:29] Speaker 01:
We adopted the work ring process sometime in 2009 where employees clocked in and out, and we refined that process in 2011 by having a more

[01:32:40] Speaker 01:
proper system to do that and a process to do that.

[01:32:44] Speaker 01:
The only thing that changed when we came to the new directive is that we permitted employees to virtually clock when they're somewhere else.

[01:32:51] Speaker 01:
That's the only thing that changed.

[01:32:53] Speaker 01:
And for us, that's why we think that's a de minimis change, because it's not changing the terms and conditions of employment.

[01:32:59] Speaker 01:
Employees have always had to certify their time.

[01:33:01] Speaker 01:
Employees had always had to clock in and out.

[01:33:04] Speaker 01:
And employees had always had to tell supervisors when they're unable to do so.

[01:33:09] Speaker 01:
So based on the language of the proposals, those time and attendance proposals are outside the scope of the change.

[01:33:18] Speaker 01:
Now certainly if one of the changes was about the virtual clock and an employee didn't have a proper token and what they do with that token when they can't get onto the virtual clock, that might be a negotiable proposal.

[01:33:31] Speaker 01:
But none of these proposals go to the virtual clock.

[01:33:34] Speaker 01:
They go to the work brain situation.

[01:33:39] Speaker 01:
The only thing that had changed under the new policy is that they attest their time via electronic.

[01:33:46] Speaker 01:
That hadn't been done before.

[01:33:48] Speaker 01:
And that hadn't been done via paper before.

[01:33:51] Speaker 01:
This is the first time that we allowed the employees to certify their time via that clock.

[01:33:57] Speaker 01:
But none of these proposals go to that certification process.

[01:34:00] Speaker 01:
They all go to the clock in and clock out on a daily basis.

[01:34:03] Speaker 01:
And so there's no change in the terms and conditions of employment.

[01:34:06] Speaker 05:
I'll just back up a moment and ask you to help me understand why there has to be a change in the conditions of employment.

[01:34:14] Speaker 05:
Is that because in order to try to negotiate something which is already provided, for example, in a standard operating procedure, that you have to wait until there's negotiation about a new agreement to address that?

[01:34:30] Speaker 05:
And there are no such negotiations going on?

[01:34:35] Speaker 01:
There are, and surprisingly they're waiting for the termination decision.

[01:34:38] Speaker 01:
So that's the time to do it.

[01:34:40] Speaker 01:
The department has a continuing need to update its policies, and that's why you'll see some of this.

[01:34:45] Speaker 01:
But what you don't see is anything changing a collective bargaining agreement.

[01:34:50] Speaker 01:
I'm confused now.

[01:34:52] Speaker 05:
If there are ongoing negotiations about a new agreement and all of these subjects could be raised in the course of that new agreement except to the extent that there are management rights issues or things like that, why are we here?

[01:35:06] Speaker 05:
Why are we arguing about whether there's been a change from the prior rule when even if there wasn't a change from the prior rule, it could be subject to negotiation as part of the new overall agreement.

[01:35:21] Speaker 01:
I think we're here because management has a continuing obligation to run its mission of the department.

[01:35:28] Speaker 01:
And right now, I think that that collective bargaining agreement negotiation has been ongoing for three or four years and with no end in the... Are these subjects part of that negotiation?

[01:35:42] Speaker 01:
They are not part of that negotiation.

[01:35:44] Speaker 01:
Can they be part of that negotiation?

[01:35:46] Speaker 01:
I suppose, but the problem is then the department can't carry out its business

[01:35:51] Speaker 01:
on these issues.

[01:35:53] Speaker 01:
So for example, we had the work brain clock and it let people certify their time.

[01:35:58] Speaker 01:
If we had that wrapped up in negotiations, we would have a program or a system that the department can't use until we finish negotiations over it.

[01:36:08] Speaker 01:
And so that's why we do the obligation here where there's a change or there may be a change in a condition of employment.

[01:36:15] Speaker 01:
We notify the union and give them an opportunity to issue some proposals on that.

[01:36:19] Speaker 01:
And a lot of the proposals get adopted.

[01:36:22] Speaker 01:
We just did it recently with our performance evaluation system and our award system.

[01:36:28] Speaker 01:
We sat with the union, worked out all the issues that they had with the proposal and adopted them and are moving forward with those directives.

[01:36:35] Speaker 01:
So we do that because it helps us manage the department move forward with our mission.

[01:36:41] Speaker 01:
To wait for negotiations each time is a bit of a challenge.

[01:36:45] Speaker 01:
Now, certainly, if we were close to a collective bargaining agreement being ready to go, we would have incorporated these provisions into that process.

[01:36:53] Speaker 01:
But the chief had a mission to make sure that we got the four directives out.

[01:36:57] Speaker 01:
And that's why the collective bargaining agreement allows us to issue interim guidance if there are pending issues.

[01:37:04] Speaker 01:
And so our time in attendance is an interim guidance because of the issues pending before this court.

[01:37:09] Speaker 01:
Absence and leave is an interim guidance.

[01:37:11] Speaker 01:
Outside employment is interim guidance and emergency suspension is an interim guidance.

[01:37:16] Speaker 01:
That's consistent with the collective bargaining agreement while we wrestle with these negotiable issues.

[01:37:22] Speaker 01:
The other issue I want to turn the court's attention to is the proposal dealing with absence and leave.

[01:37:28] Speaker 01:
The only rationale that the Office of Compliance gave for that proposal being negotiable

[01:37:34] Speaker 01:
is based on a false premise that the union gave them that it was the first time that Capitol Police employees had ever been subject to the Capitol Police Board regulations.

[01:37:45] Speaker 01:
Well, that's just not factually accurate.

[01:37:48] Speaker 01:
The Capitol Police Board regulations came out in 1998 and there are regulations to allow the chief to set absence and leave for Capitol Police employees.

[01:38:01] Speaker 01:
Employees aren't subject to the

[01:38:03] Speaker 01:
board's regulation, they're subject to the department's policy.

[01:38:07] Speaker 01:
And so the proposal linking the department's policy to the board's regulations, which are outside of the Capitol Police's statutory authority, there's not the proper scope in the change in condition of employment.

[01:38:22] Speaker 01:
Those regulations haven't been changed

[01:38:24] Speaker 01:
And this is a perfect example of, had we had a hearing.

[01:38:27] Speaker 00:
So what did you propose with respect to those regulations, precisely?

[01:38:32] Speaker 01:
The union's proposal was that they be posted on the internet.

[01:38:35] Speaker 00:
What did you... The word proposal has made this extremely difficult to talk about.

[01:38:41] Speaker 00:
What did you indicate you wanted to do with respect to... We indicated there was no change in conditions of employment.

[01:38:49] Speaker 00:
No, no, no.

[01:38:50] Speaker 00:
Before there was litigation in front of the board.

[01:38:53] Speaker 00:
What did you indicate you wanted to do with respect to what is now the subject of Proposal I?

[01:39:00] Speaker 05:
We did not want to negotiate it because... It's not the 179, I think, of the appendix where the director refers to the consulting regulations.

[01:39:08] Speaker 00:
That's the alleged change, right?

[01:39:10] Speaker 00:
Right.

[01:39:11] Speaker 00:
And this is putting... What is this directive?

[01:39:14] Speaker 00:
Is this directive... What happened?

[01:39:18] Speaker 01:
Yeah, where is this directive?

[01:39:20] Speaker 01:
It's like OPM's regulations.

[01:39:22] Speaker 01:
Congress gave the Capitol Police Board authority to issue regulations pursuant to their statutory authority.

[01:39:29] Speaker 01:
They came out with regulations that they gave to the chief and then the chief issues leave them pursuant to those regulations.

[01:39:37] Speaker 00:
Right.

[01:39:37] Speaker 00:
So this, and this directive would be, I can see it, the only thing that I was

[01:39:44] Speaker 00:
Maybe this is just a speculative on my part, but that I thought might have been a change here is something along the following lines.

[01:39:52] Speaker 00:
You were always subject to the regulations, but you didn't know it quite as well as you now do since we put it in the directive.

[01:39:59] Speaker 00:
Now you know it a little bit better.

[01:40:00] Speaker 00:
And when you violate them, you're going to have more easily attributable knowledge with a greater possibility of more severe punishment because now you kind of really know it.

[01:40:13] Speaker 00:
Why is that, why did that little story I just told, why is that not what happened here, which is more than a de minimis change with respect to employees.

[01:40:22] Speaker 00:
And therefore they come back and say, well, if you're going to make it a little bit more now attributable to us, we want it to be something we can check in three seconds on the internet.

[01:40:33] Speaker 01:
Well, they, so under that scenario, the, um, they have not received the regulations.

[01:40:40] Speaker 01:
They don't know what they say.

[01:40:42] Speaker 01:
But the grievance can never be about the regulations.

[01:40:45] Speaker 01:
The grievance, or if they have a challenge to it, is about the department's policy and its application to the employee.

[01:40:51] Speaker 05:
I'm getting confused.

[01:40:52] Speaker 05:
The directive, which is what's new, is that 179, it says the following publication should be referenced in conjunction with its policy directive and that it lists the regulations as one of the things to be consulted by.

[01:41:04] Speaker 05:
Correct.

[01:41:05] Speaker 05:
They claim that that directive telling you to consult the regulations is a change, right?

[01:41:12] Speaker 01:
That's their argument.

[01:41:14] Speaker 01:
And you say it's not.

[01:41:15] Speaker 01:
It's not.

[01:41:16] Speaker 01:
Those regulations have been in place since 1998.

[01:41:18] Speaker 00:
But that's not quite responsive.

[01:41:19] Speaker 00:
The regulations have been in place.

[01:41:21] Speaker 00:
The regulations haven't changed.

[01:41:23] Speaker 00:
What's new is something that says, dear employees, consult these.

[01:41:27] Speaker 00:
The question is, is that directive, please consult these, is that more than a de minimis change in the conditions of the employees' working conditions?

[01:41:40] Speaker 01:
I would start with it's the Office of Compliance's obligation when they're doing these statutes to determine that.

[01:41:48] Speaker 01:
Though I don't think it's more than a de minimis.

[01:41:50] Speaker 05:
What did it say earlier?

[01:41:51] Speaker 05:
Did this directive replace the standard operating procedure?

[01:41:56] Speaker 01:
This directive consolidated some other policies.

[01:41:59] Speaker 01:
We just didn't have it as a reference.

[01:42:01] Speaker 05:
That's the only change.

[01:42:02] Speaker 05:
The earlier policy did not reference the regulations at all?

[01:42:05] Speaker 05:
Correct.

[01:42:06] Speaker 05:
Correct.

[01:42:07] Speaker 05:
That's the difference.

[01:42:09] Speaker 00:
in a story in which they were a little bit obscure and hard to find before.

[01:42:14] Speaker 00:
By putting them in the directive, they're less hard to find and less obscure.

[01:42:21] Speaker 00:
And therefore, if somebody goes about violating it, there's now a new weapon to say, and you knew about it.

[01:42:29] Speaker 01:
But there's nothing in the regulations to violate.

[01:42:31] Speaker 01:
The regulations don't apply to employees that achieve the authority.

[01:42:36] Speaker 01:
So the only thing there is to violate is the department policy.

[01:42:40] Speaker 01:
There's not a regulation to violate.

[01:42:42] Speaker 02:
But the directive made the employees expressly responsible for following these regulations, did it not?

[01:42:49] Speaker 02:
No, it did not.

[01:42:50] Speaker 01:
All it did was listed as a reference.

[01:42:53] Speaker 01:
Employees don't follow that directive.

[01:42:55] Speaker 01:
The chief follows that directive.

[01:42:57] Speaker 01:
Employees follow the department's leave policy.

[01:43:00] Speaker 01:
That's the obligation.

[01:43:03] Speaker 00:
Why did you think it was a good idea to put this reference into the directive?

[01:43:10] Speaker 01:
I think our Office of Human Resources is just being overly thorough in including everything, and that's why it got included in this.

[01:43:24] Speaker 01:
If there are no further questions, I think we've covered each of the proposals.

[01:43:30] Speaker 01:
Any other questions?

[01:43:45] Speaker 05:
Is there an obligation on the employees to follow the regulations or the regulations directed to the chief?

[01:43:56] Speaker 05:
The way the directive reads is that it's in accordance with the regulations, so it sounds like... No, but answer the question.

[01:44:03] Speaker 05:
Do the regulations apply to the employees?

[01:44:05] Speaker 05:
Do the employees have to comply with the regulations?

[01:44:08] Speaker 05:
I'll be honest.

[01:44:08] Speaker 05:
I don't know.

[01:44:09] Speaker 03:
don't have access to the regulations, I don't know what they say.

[01:44:11] Speaker 03:
I mean, the regulations are not published regularly.

[01:44:15] Speaker 03:
I mean, that's part of the reason why I think the union wanted to put it on the intranet is so that someone can read what the regulations say.

[01:44:26] Speaker 03:
If they refer to them indirectly.

[01:44:28] Speaker 03:
So the regulations are not in the record here?

[01:44:30] Speaker 03:
I don't believe they are.

[01:44:31] Speaker 03:
I don't believe they are.

[01:44:32] Speaker 00:
And when the directive tells employees to consult them, what does it expect?

[01:44:37] Speaker 00:
What does that mean?

[01:44:38] Speaker 00:
Are you saying nobody can find them?

[01:44:41] Speaker 03:
I know that I don't have access to them.

[01:44:43] Speaker 03:
I can't find them on the internet.

[01:44:47] Speaker 03:
I don't know how the employees would know what they say.

[01:44:49] Speaker 03:
It's kind of like the order that the Capitol Police Board issued.

[01:44:55] Speaker 03:
It's not published anywhere.

[01:44:56] Speaker 03:
For terminations, it's like, this is an order.

[01:45:00] Speaker 03:
I think it's also to bear in mind...

[01:45:07] Speaker 05:
Regulations usually have to be published.

[01:45:09] Speaker 05:
Why are these not published?

[01:45:11] Speaker 03:
I have no idea.

[01:45:12] Speaker 03:
You're really not in APA land at all, are we?

[01:45:22] Speaker 03:
We are not in APA land at all.

[01:45:24] Speaker 03:
No, we're not.

[01:45:24] Speaker 03:
I mean, the regulations of the Board are published in the Congressional record.

[01:45:30] Speaker 03:
They're not published in the CFR.

[01:45:35] Speaker 03:
Regulations are published in the Congressional?

[01:45:37] Speaker 03:
Yes, at least the regulations of our board, of the OOC board, are published in the Congressional record.

[01:45:44] Speaker 00:
But those aren't the regulations that we were just talking about?

[01:45:47] Speaker 00:
No, we're not.

[01:45:48] Speaker 03:
There is no requirement for the Capitol Police to publish their regulations anywhere to find out.

[01:45:57] Speaker 03:
And I think it's also important to bear in mind what the order is of the board.

[01:46:01] Speaker 03:
The order is that they should go back and discuss these proposals as part of the collective bargaining process.

[01:46:08] Speaker 03:
There is no order that any of these proposals have to be implemented.

[01:46:12] Speaker 03:
And I think why that's important is because the board's order under their regulations should... Can you just go back to what I think is actually the legal issue on this?

[01:46:23] Speaker 00:
Why is this directive in the...

[01:46:28] Speaker 00:
more than de minimis change?

[01:46:30] Speaker 03:
Well, again, I think this particular directive, I think it formally was a standard operating procedure and then it becomes a directive.

[01:46:39] Speaker 00:
And unless, I mean, those words don't even begin to tell me why that's more than a de minimis change.

[01:46:46] Speaker 00:
So at that point, you lose.

[01:46:47] Speaker 00:
So what is it that's more?

[01:46:49] Speaker 03:
Well, because I guess the common sense idea is a standard operating procedure or an interim guidance

[01:46:57] Speaker 03:
the supervisors and the employees have much more flexibility in terms of whether or not they comply with it or not.

[01:47:03] Speaker 03:
I mean, this is what the standard procedure is.

[01:47:06] Speaker 03:
How do we know that?

[01:47:09] Speaker 03:
I think that was the argument that the union made, that they said that if you make this a directive, we understand this means we have to comply with it.

[01:47:18] Speaker 03:
If it's an interim guidance or if it's a standard operating procedure.

[01:47:23] Speaker 05:
What does the standard operating procedure say

[01:47:26] Speaker 05:
in terms of compliance that the directive changes.

[01:47:33] Speaker 05:
Do we have the standard operating procedures in the record here?

[01:47:39] Speaker 05:
I'm not sure that we do, quite honestly.

[01:47:41] Speaker 03:
Actually, I do think they are in the record.

[01:47:43] Speaker 03:
I looked at them.

[01:47:46] Speaker 05:
What do they say that gives the employees more latitude in the directive?

[01:47:51] Speaker 03:
Well, I mean it says this is the standard operating procedure.

[01:47:54] Speaker 03:
It doesn't say you must do this.

[01:47:56] Speaker 03:
It says this is our standard operating procedure.

[01:47:59] Speaker 03:
So that's why it's a change.

[01:48:03] Speaker 03:
That's why it's a change.

[01:48:06] Speaker 05:
But you agree that the language with respect to outside funding is the same for all of them except for this one change in F, right?

[01:48:16] Speaker 05:
I believe that's correct, yes.

[01:48:21] Speaker 03:
But again, you know, the context of this is that there is an article in the current collective bargaining agreement that if the department is going to change their policies, that they have to provide a draft to the union, and the union is allowed to negotiate over that.

[01:48:39] Speaker 03:
And that's what happened here.

[01:48:40] Speaker 03:
I mean, this is where this all came about.

[01:48:42] Speaker 03:
I mean, they said, we're going to make these now directives.

[01:48:45] Speaker 03:
This is how it's going to read.

[01:48:46] Speaker 03:
Here's a draft of it.

[01:48:48] Speaker 03:
And they then came up with proposals, whether you call them proposals or whether you say this is what you should look at.

[01:48:54] Speaker 03:
I mean, this is what we want parties to do during collective bargaining.

[01:48:58] Speaker 03:
We want them, when they're going to make a change, to talk about each other, what those changes are going to be, and to negotiate whether or not, what the proposal should read.

[01:49:07] Speaker 03:
I mean, this is the whole purpose of collective bargaining.

[01:49:12] Speaker 03:
And so that when we get to the question of

[01:49:16] Speaker 03:
You know, is it a condition of employment?

[01:49:18] Speaker 03:
Well, of course these are conditions.

[01:49:19] Speaker 03:
These are the things that unions typically bargain over.

[01:49:23] Speaker 03:
How do you record time?

[01:49:25] Speaker 03:
How do you make sure that my overtime is recorded accurately on the time clock?

[01:49:30] Speaker 03:
I mean, those are all things that you would expect a union to negotiate with their employer over as a condition of employment.

[01:49:37] Speaker 00:
Right, but that doesn't answer the question whether anything has changed and whether any change is more than de minimis.

[01:49:43] Speaker 03:
Right.

[01:49:44] Speaker 03:
What the board focused on when they, again, on the 12 that they decided were negotiable is that was the change that the union proposed wasn't addressed to the specific change that the Capitol Police was making in the directive.

[01:50:02] Speaker 03:
So if it's reasonably related to the change they were proposing, they found it to be negotiable.

[01:50:08] Speaker 05:
may seem to be questionable as to take the time and attendance that allowing 15 minutes, I'm not sure how that's related to the change from the paper system to a computer system.

[01:50:21] Speaker 03:
Well, again, that I think the board found that that's a procedure, that they were at that point proposing a procedure and under the statute they're allowed to propose a procedure.

[01:50:32] Speaker 05:
I don't think that answers the question.

[01:50:34] Speaker 05:
If there's a change, the proposal's got to be related to the change.

[01:50:37] Speaker 05:
And a couple of these proposals don't seem to be related to the change, which is basically computerization.

[01:50:44] Speaker 03:
Right.

[01:50:44] Speaker 03:
I think the board's view is that you're going to make this, now you have to complete the time in attendance by computer, that therefore the question of how long it's going to take you to do it on a computer as opposed to on paper is a fair subject to bargain over.

[01:51:01] Speaker 05:
What about proposal eight?

[01:51:03] Speaker 05:
I didn't find the...

[01:51:13] Speaker 05:
This seems to potentially restrict the department's ability to discipline.

[01:51:27] Speaker 05:
And the suggestion that it's only an after the fact limitation, I didn't find particularly convincing.

[01:51:36] Speaker 03:
This is a sentence in which they say that the burden is on the department to establish that, and again,

[01:51:42] Speaker 03:
I think the argument that the Capitol Police made that this would interfere with their management right to discipline.

[01:51:48] Speaker 03:
And what the board found is that it doesn't because the decision to suspend an employee has already been made.

[01:51:54] Speaker 05:
Well, I don't find that the right condition because when you're making the decision whether to suspend somebody, you're going to look to see what the standard is going to be to justify that.

[01:52:06] Speaker 00:
Because a week after the suspension, they now have to come and justify it, and if they can't justify it, then presumably it's going to get reversed.

[01:52:13] Speaker 00:
So it seems to me inconceivable that this doesn't alter the ability to suspend.

[01:52:23] Speaker 03:
Again, I'm here to defend what the board said.

[01:52:26] Speaker 00:
And that's the only issue on that.

[01:52:28] Speaker 00:
This is not a procedure thing, because burdens of proof are way more than procedure, and this is not an appropriate arrangement.

[01:52:49] Speaker 05:
Any further questions?

[01:52:50] Speaker 03:
Anything more?

[01:52:51] Speaker 03:
I don't think I have any more.

[01:52:53] Speaker 03:
Thank you, Mr. Ohm.

[01:53:06] Speaker 06:
Thank you.

[01:53:07] Speaker 06:
With respect to the question of whether these proposals or whether these directives address changes, they do.

[01:53:17] Speaker 06:
For example, in the outside employment directive, the proposed directive by the department imposes additional burdens on the employees as a result of the change in the directive.

[01:53:30] Speaker 06:
The draft directive includes the provision that an employee might be subject to discipline in a way that the old directive does not.

[01:53:38] Speaker 06:
That is the basis for the union's proposal.

[01:53:41] Speaker 06:
The union agrees that the language of those limitations does not change.

[01:53:46] Speaker 06:
the importance of the language of those limitations and the need for the employees to know what the limitations on their ability to have outside employment are has changed because they are now subject to discipline.

[01:54:01] Speaker 06:
They are now subject to certain requirements about their ability to engage in, for example, voluntary activities during their downtime at work.

[01:54:09] Speaker 00:
Can we just maybe focus on some of these specifically?

[01:54:12] Speaker 00:
Let's start with D. OK.

[01:54:15] Speaker 00:
As far as I can tell, the directive language appears essentially identically in the 2012 standard operating procedure.

[01:54:27] Speaker 00:
So where's the non-dominimous change?

[01:54:31] Speaker 06:
So again, the non-dominant change is that now this directive is something that the employees, as you previously said, now this is something that's going to be applied to you.

[01:54:41] Speaker 06:
You really need to know what it means.

[01:54:44] Speaker 06:
And so the union's proposal, again, is simply for an example of what that means.

[01:54:50] Speaker 06:
So then an employee who now, for the first time, might be subject to discipline for a violation of this particular directive.

[01:54:57] Speaker 00:
Did the compliance board find that previously

[01:55:01] Speaker 00:
employees were not bound by these standard operating procedures and now under the directive they would be?

[01:55:09] Speaker 06:
I don't believe that the compliance board addressed that question.

[01:55:12] Speaker 00:
I think that's what you were just saying.

[01:55:14] Speaker 00:
It's gone from non-obligatory to obligatory and I don't see the finding for that.

[01:55:20] Speaker 06:
That is addressing the department's argument that there was no change in working conditions here before you.

[01:55:29] Speaker 05:
Yeah, but I think what Judge Sharona is asking you is there cannot be a change in the respect of the proposals where there's no language change if, in fact, it's gone from being voluntary to being mandatory.

[01:55:44] Speaker 05:
And the board hasn't made any decision about that.

[01:55:48] Speaker 06:
While the board did not address that particular fact, the board noted... Could be an important particular fact.

[01:55:55] Speaker 06:
I think what the board did say to address the issue is that when the board is looking at whether a proposal is negotiable, unlike what the department is urging, which is that you look to the specific language of the specific sentence that the union proposes to change or proposes to add something to or proposes to add something to the end of, you actually have to look holistically at the draft directive

[01:56:22] Speaker 06:
and say how does this draft directive or draft SOP or whatever the draft may be impact the employee's relationship with its employer, its working conditions.

[01:56:34] Speaker 05:
So while the board did not... What does the SOP say about this, about compliance?

[01:56:40] Speaker 05:
Where do we find the SOP in the record?

[01:56:42] Speaker 06:
The proposed SOP?

[01:56:46] Speaker 06:
The SOP that existed before with respect to outside employment starts at 839.

[01:56:55] Speaker 05:
Which volume of the appendix is that?

[01:57:10] Speaker 06:
This is volume two.

[01:57:21] Speaker 05:
Where's the language here that says that there's just guidance or something?

[01:57:29] Speaker 06:
Again, the SOP simply indicates that it's in... Where are you?

[01:57:35] Speaker 06:
I'm on 839, the first page.

[01:57:39] Speaker 06:
It says that it's simply there to establish an effective management and tracking system.

[01:57:44] Speaker 06:
If you look at the substance

[01:57:46] Speaker 06:
of the document itself.

[01:57:48] Speaker 05:
Where's the language on the page?

[01:57:50] Speaker 06:
The very first under purpose, directly under the subject matter on the top left.

[01:58:08] Speaker 00:
But the next couple of paragraphs start sounding rather mandatory.

[01:58:12] Speaker 06:
They are.

[01:58:13] Speaker 06:
They are, certainly.

[01:58:15] Speaker 06:
Again, the distinction here between this SOP and the draft directive that was provided to the employee is that the draft directive simply says, ensure that the employment or service is not a prohibited activity, for example, and then you give it to the employer to make a decision.

[01:58:36] Speaker 06:
Under the proposal, again, the change

[01:58:40] Speaker 06:
to the working condition that requires or that mandated resulted enough making these proposals is that now the employees must ensure that their outside employment or volunteer activities do not conflict with the conscientious performance.

[01:58:53] Speaker 05:
Wait, wait, wait.

[01:58:54] Speaker 05:
On this page it says employee ensure that employment or service is not a prohibited activity.

[01:59:00] Speaker 06:
Correct.

[01:59:02] Speaker 05:
Well, so that sounds pretty mandatory.

[01:59:05] Speaker 06:
Again, because under the procedure the

[01:59:10] Speaker 06:
Under the SOP, the burden was not on the employees.

[01:59:17] Speaker 06:
There was no negative consequence to the employees for the failure to or for engaging in a prohibited activity that was an outside employment.

[01:59:31] Speaker 05:
There was no sanction for engaging in prohibited activity?

[01:59:36] Speaker 05:
That seems unlikely.

[01:59:37] Speaker 06:
Well, there was nothing included in the SOP.

[01:59:40] Speaker 06:
that applies to the employees, where the employees are now subject to these mandatory requirements that are described in Appendix 8 on page 809, which is the first page of the new draft directive from which the union's proposals were drafted or came from.

[02:00:06] Speaker 06:
For the first time in the general policy on page 808 and 809, it says, violation is subject to discipline up to and including termination.

[02:00:14] Speaker 05:
This prior... It was subject to discipline before for engaging in prohibited activity, weren't they?

[02:00:20] Speaker 06:
It doesn't say that in the policy.

[02:00:22] Speaker 06:
So the union would argue that, again, absent some malfeasance that has a nexus to their workplace, the answer would be if they were working a

[02:00:33] Speaker 06:
non-prohibited activity that have been approved by the employer that they would not be subject to discipline.

[02:00:39] Speaker 06:
Thirdly, with respect to the time and attendance issue,

[02:00:49] Speaker 06:
I understand that there's been some discussion about whether the computer versus the paper is a big change or a de minimis change.

[02:00:57] Speaker 06:
While that may not be a major change for an office worker, these employees that the union represents, they're not office workers for the most part.

[02:01:05] Speaker 06:
Many of them are working posts out on the Capitol.

[02:01:08] Speaker 06:
They're out on the streets.

[02:01:09] Speaker 06:
Many of them do not have access to a computer.

[02:01:12] Speaker 00:
Did all of what you view as changes with respect to this time in attendance

[02:01:20] Speaker 00:
Did all of them require employees to do something that they were not previously required to do?

[02:01:28] Speaker 00:
I thought at least one of them was, this is giving you an additional option, which isn't a change of a sort, but that at least raises a question whether a change that is favorable is automatically negotiable.

[02:01:43] Speaker 06:
The department may view the option to use a virtual time clock.

[02:01:46] Speaker 06:
I think that's what you're talking about as favorable.

[02:01:48] Speaker 06:
But again, for the employees, they want to know what are the circumstances under which they're expected to use the virtual time clock, what happens if they can't use the virtual time clock, issues of that kind.

[02:02:00] Speaker 06:
You have a group of employees who, again, do not use computers necessarily in their day-to-day operations, and they may not even have access to computers, again, except at certain times during the day while they're on breaks.

[02:02:12] Speaker 06:
So the proposals that the union has made are designed to address

[02:02:17] Speaker 06:
the need to now do certain things that had been previously printed out and handed to them on the computer.

[02:02:24] Speaker 06:
Previously, the burden, again, while employees had to certify their time, as the department admits, the prior proposal, the prior policy required that the supervisor printed everything out, gave it to the employee, required them.

[02:02:38] Speaker 06:
Now the directive reverses that burden.

[02:02:41] Speaker 06:
The employee has to find a computer login and certify their time.

[02:02:45] Speaker 06:
That may not seem like a de minimis proposal or a de minimis, non de minimis change, and perhaps for an employee that sits at a desk all day, it's not.

[02:02:54] Speaker 06:
But for an employee who then has to search out a computer, find the time, get relief from a post to go to that computer and do this time entry, it is more than a de minimis.

[02:03:04] Speaker 06:
It does place a greater burden on them than they had previously.

[02:03:09] Speaker 00:
Mr. Herrera made an argument that it's just not what

[02:03:12] Speaker 00:
rule about what you can do when you're off duty.

[02:03:15] Speaker 00:
The outside employment stuff just doesn't have to do with conditions of employment.

[02:03:20] Speaker 00:
A, did they make that argument to the compliance board?

[02:03:23] Speaker 00:
And B, can you tell us anything about this sounds like an argument that ought to have been made and either adopted or rejected?

[02:03:32] Speaker 06:
I don't recall that argument being made, frankly, and I think perhaps the reason is because of how outrageous that is.

[02:03:38] Speaker 06:
What the department is saying through its argument and through its proposal is that it's not a condition of employment what you do outside your job duties, but if you do it wrong you might be subject to termination.

[02:03:50] Speaker 06:
That is sort of inconsistent in my mind with common sense, but it's also inconsistent with the FLRA law, which we did cite in our brief, that this is clearly a condition of employment.

[02:04:03] Speaker 06:
Criteria for

[02:04:04] Speaker 06:
when employees can work outside of their job with the government is a fairly straightforward working condition under the FLRA cases that we cited.

[02:04:32] Speaker 01:
Just very briefly, Your Honor.

[02:04:33] Speaker 01:
I wanted to just correct one thing with respect to the SOP outside employment and the directive outside employment.

[02:04:41] Speaker 01:
Employees have always been subject to the rules of conduct for both of those.

[02:04:44] Speaker 01:
And that's found in your appendix at 210.

[02:04:50] Speaker 05:
Thank you.

[02:04:50] Speaker 05:
Thank you all, Counsel.

[02:04:51] Speaker 05:
The cases are submitted.

[02:04:52] Speaker 05:
That concludes our session for this morning.