may please the court rafique andersen for the petitioner united states capitol police it was impossible for the united states capitol police to commit an unfair labor practice for several reasons the first capitol police board terminations decisions are not conditions of employment the second reason is the capitol police board game terminations decisions are not covered under the congressional town ability at and also capitol police employees including those of the union are not given statutory right to challenge a capitol police board terminations this is the first piece of this is the special rule for terminations specifically provides for how capitol police board determination decisions are to be covered and because of that those matters are not conditions of employment conditions of employment are the only things that an arbitrator is eligible to review the second thing is capit police the capitol police board is not covered under the ca at all in terms of its labor management provisions so any capitol police terminations decision is excluded from the labor management provisions of the ca which makes it an eligible for an arbitrator to review granting an arbitrator the right or the ability to look at a capitol police report termination decision would you serve for congress is a position that members of the capitol police including those of the union are not eligible to have their terminations reviewed provision and the capitol police board was under the provisions and because of that it specifically tells you exactly how capitol police employees are to be terminated in terms of the process so it doesn't have to be something that's super explicit like that because of the actual fact of what happens so besides the special rule of terminations the second part of it is when congressman adopted five u s c seventy one twenty one when they incorporated that into the congressional kind of ability act they understood that they were not giving capitol police employees including those of the union the right to challenge their terminations decisions the way that we arrive at that is there the course of the d c circuit seventh circuit ninth circuit several cases where they talked about if you don't have the right to challenge the terminations or serious matters of discipline but statute then you don't get that right through the is because congress has to give you the right and order to challenge or terminations throughout the section of service and throughout the legislative branch there's plenty of instances when congress says you may be able to challenge a termination we disagree with that position i know you disagree with most of your argument is that part of your argument for getting to the original sugared cases that are still based is there is no way to gain review of an arbitrator's decision in the circumstances that is correct  seventy one twenty two thirty eight proficiency arbitrator's from reviewing matters of serious discipline that includes terminations so because congress adopted that that is why arbitrator decisions can't be reviewed because in the in the file still case in the following cases the thing that they were concerned about was uniformity right you didn't want to give rights to people who congress didn't same thing here that it's correct to unionize but not to challenge terminations well that's the question and so this is how we get there right so you look at what was happening in one thousand ninety nine all i'm saying is that i'm not sure in my mind th don't want to lose those they also took testimony from the yellow sea which did not have those rights and they said we don't want them and so when they made the ca it's clear that statutory appeals ri fact you were to give an arbitrator an opportunity to review matters of serious discipline you'd have the same problem you had in those these the seventh the ninth circuit problems you have been in very preference where the employees of the g a o would actually get less rights because they have the follow uniform by line case precedent which ultimately ends up here where is an arbitrator can mete out justice and just in a way that they fash you also have the inverted preference where people who are given statutory rights are not included to give statutory rights are for clothes but members of the united states capitol police their union i actually given rights and then we have the issue of an arbitrator again making the final decision on whether a capital police officer is fit to protect congress you see right now one twenty two right which congress adopted prevents arbitrator decisions concerning matters of serious discipline to be a piece of what you have here is simply an arbitrator's decision with no review and it's important to remember that a resolution is not signed by the president right this isn't something that is a lot of regulation it's just the regulation regulation and the less it is first superseded by the changes other than those changes so when they had that did seventy one twenty one and they had that the seventy one twenty two it's clear that they excepted all of the judicial interpretations of that and that is the that the cases that we're talking about so the important thing here is that if you don't get the statutory right can't do it in the negotiated grievance process because again it when you serve with congress was trying to do congress is trying to create different classes of employees and have an arbitrator make those decisions without review because we say seventy one twenty two today prevents any refute it that is not and congress want congress wants the capitol police board as i said with the sergeant at arms in both houses and the architect of the capitol to be the ones to decide who is going to protect them and that's a plan a recommendation of the capitol police chief who does the day to day operations and knows exactly who should and should not be part of the capitol police so that's what's important here for us to remember is that there's three reasons why employees of the capitol police including those of the union cannot challenge terminations the first two are grounded in a special room terminations the second one is because congress never gave them the right think the big question here is not the question posed the big question is whether you should consider these questions in this appeal and the i would suggest to you that really what they're what their claim is here is that they should not have to arbitrate cases if they have an arbiter ability issue that's basically what their position is and the law on the syria has been settled for a long time it goes back to the steelworkers worker trilogy nine hundred sixty where is that there is no law for the federal government the answer is that those questions go back to the arbitrator and that's not only the law of the case law has set down but that's the law that set forth in the federal service labor management relations act which there are questions of arbitrary bill oddie they go to the a has decided that it's unfair labor practice original work worse than argument taking you know we shouldn't be entertaining this appeal we should send it back and say this question has five off the parties did that is the exception for a provision or employees that is if a union requests arbitration for probation or inflate if they can refuse to arbitrate that question and that would not be an unfair that they did not after they did not have the right to arbitrate this this or they did not have to arbitrate this particular issue and the reason that exception has to be very narrow because let if it's very broad the exception will solve the rule the rule is brief they really have not explained to you why do you think you should address these folks it's all ignored the big question as you know which is why should you decide those issues in this case particularly when you have the same issues pending before two other panels including this path so there really is no reason to decide with questions and in this case i mean and again if you go back to the us the steelworker trilogy the idea is that th carve arbitration in the collective bargaining agreement is designed to create kind of a system of self government between these two parties allowing them to resolve their issues and the negotiated grievance process is very much a part of the collective bargaining recognise that in many cases an arbitrator is going to be in a better position to decide these issues than a judge or a court because the two of them decide who the average rate is going to be and ideally they're going to pick somebody who's going to be a specialist in the area that can resolve these issues and so they're and this is this is their own method of self government that this is what this unfair labor practices designed to enforce and the one exception in this statute is that unlike you know under the actual arbitration process that we agreed to in the contract which is required by law which is required by the case case law and instead they're engaging in unfair labor practices they need to be ordered to go to arbitra to participate in arbitration is if there was a clearly defined law that would allow such a thing as you have just pointed out your honour's there are two other place cases pending there is no scenario under which the department can argue that they have to be before this court arguing about the law and that also it is a clearly defined law so we believe that as the office of clients does that there is a clear i'm fairly practiced here and that it is not necessary to reach the merits of the case because the department in your honor after the labor committee had filed its unfair labor practice zen the department did in fact agree to go to arbitration on both the arbiter ability question and on the merits they did not prevail on arbiter ability before the arbitrator the labor committee prevailed both the other two ability and their rights and that matter actually was decided by the office of compliance board of directors on the department's exceptions as well i  yes however the office of compliance board of directors has taken the position that this is not moot because it is a question that the department it is a issues that the department could refuse to go to arbitration in the future as it did here because it did not agree to go to arbitration intel after the union filed its unfair labor practices which delayed the process for officer donaldson by quite a few months and for that on that  controversy of course but again here where this could happen at any happen again at any time the union elects to take the matter terminations matter to arbitration and we believe the office of compliance board of directors properly concluded that it was not moot so that we don't have to come before you on each and every case frankly that you know hopefully once this court issues its decision and that we will not have to proceed here  again with respect very briefly to the policy arguments of the department raised specifically the department has raised some arguments that it should be up to the office to the united states capitol police chief alone to decide who is fit for duty unlike other federal sector employees for example d e agents ice agents they are also law enforcement officers and yet they have to go through the process they can go through the grievance process through in order to arbitrate or process the arguments that are so the employees in the legislative branch may have more rights than others and other employees those are policy arguments that are properly decided before by congress  they are not properly decided by the courts if the department believes that these things are unfair they should or to back to congress rather than asking this court to get the employees rights the car what congress did not do in this case i a and b tells you exactly how capitol police for terminations decisions happened how you get terminated as an employee from the capitol police specific so when you hear an argument about it doesn't specifically say you have to do is go to the text and read the first part of it says the chief amongst other authorities as the ability to discharge subject to a political blog regulation have authority over conditions of employment as i said when i was a for the first time there's two reasons why they don't the first one is that it's the special rule the second thing is and you will hear the office of compliance board of directors answer this for you why did congress move the capitol police board outside of the cia remember before the technical corrections act the committees of congress have the ability to issue a final determination to sit so this isn't arbitrary arbitrement here that is correct because it's perfectly clear that there was no jurisdiction you're a traitor that is the first phase of the argument the second one is they don't have statutory rights at all the reply when talk about you know your argument is basically as i understand the same argument you're making as to why there was no jurisdiction in the arbitrary that is correct your own because there was no no because there was no  rule is specific but unlike the agents and things of that sort they have statutes rights to appeal and capitol police employees especially those of the union do not have those rights so that's what you're going to notice there's a difference between the two of those and that congress actually instituted the policy they created the ca with the intent and that to give capitol police employees especially those the union no right to terminate to challenge terminations so it's not that we should go back to congress and and seek to repair congress has already said exactly how they want this to go as that as if with the special rule not going back to special rules they've wanted to make clear that these matters dealing with terminations are not to be covered under the ca period that is why they remove the board that is why there is actually removed the board from under the ca but what i want you to make sure you remember is that the line of authority for who can terminate capitol police employees has never changed so this isn't something no experience in policing the top of the most important target in the world right now so arbitrators as you well know i'm not saying anything you don't know oftentimes they have no lot agrees that are and they have no idea about the cia or anything related to that and they are in the position to reinstate someone back to the capitol police that is not what kyra's intend and i just want to leave you for one more thing congress specifically adopted seventy one twenty two a which prevents any review this is going back to an arbitrator for veuve prevents any review of terminations matters congress didn't change it they didn't amend that they didn't do anything so i would suggest here again that yes the capitol police went to arbitration just pro forma right just to go but it doesn't mean that the capitol police waived its rights to say that arbitrator does not have statutory jurisdiction over capitol police board matters so simply because we went doesn't mean that we gave up the position that we're arguing to that if there are no further questions your very last point arbitrations yes they have exceptions right yes we don't believe that that's the right route but the chief does not want to not follow the existing rules that are in place argument is that those rules are incorrect we won't be able to make that final determination until this court actually comes out with a rule that's favorable for us so it's not that we're saying oh we went oh i'm in we've lost over going to now try to go courage we did it so we're going to follow the rules as the rules are currently laid out but it doesn't mean that we agree with those rules that's what i'm trying to convey to you we're going to continue to until you're told you can't do it and the in the that is correct we're going to always maintain our ability to challenge under the statute right but there are current rules in place and the chief does not want and that follow those rules but it challenging it exactly because we believe that the office of compliance action offer virus leigh when they're actually hearing exceptions because congress adopted five u s c seven one twenty two which prevents any exceptions over matters dealing with terminations but it doesn't mean that since they're acting ultraviolent rather sleep that we don't go in that direction right are all timid response and requests for this court to find that those rules are correct anything that will be considered similar to seventy five twelve or four hundred three so that would be reassignments be demotions and a discipline fifteen days and over and terminations because when you're reading seventy for the seventy one twenty one argument for the special rule argument that simply deals with terminations so that's why i said there's three bases in which to me first the board after the after class board of directors