interpretation can be sustained and here the authorities interpretation is plainly in conflict with the proposals text related sections of the party's existing telework article and the boarding party shared understanding of the  explicitly sanctions denials of telework requests so long as those denials are reasonable and critically neither of the bargain parties if you just language as limiting agency managements discretion to deny telework requests consistent with parties contract on a deal the authority makes two points to the majority's interpretation of entities proposal st it says that the majority actually interpreted the proposal in the same way as any to you does but that's simply not true we do not in agree that the proposal creates a present of entitlement to eighty percent telework the authority now says that the majority is interpretation was based on the potential application of them to use proposal which in the majority view might lead to grievances in arbitrations but that also isn't true in footnote eleven of the majority's decision which is on j c twenty eight dollars the majority explicitly bases its interpretation of the n t as proposal on the proposals plain wording repente the unreasonably denied language well at the end after setting forth that interpretation speculated that in practice  they were referenced in n t as proposal which the majority quoted but nothing in the majority is now as this reflects that it took into account those religious sections and regardless of the authority on appeal has no explanation for the majority and twenty three c and our court and supreme court have said that that's a jurisdictional argument so did the union raise that before the f r a i mean i  spawn taken sooner the right to direct employees and also that it departed from its own precedents without sufficient explanation with those points raised i mean i assume they were and i mean can you can point to a place where they were raised in terms of a failure to adequately deal with president on point your honor that's that's just a basic procedural error in our view that is a from the authorities decision and consideration of the issue because the agency there race for the st time that the half hour and misconstrued its precedent we said that we could not consider the petition for review because there was a failure from the government in  case it was the agency to reconsider on the grounds that the f r a had misconstrued its process and so isn't that what i mean if you're not aware of that case but i'm not i find it hard to see how your circumstances distinguishable from the department of commerce case your honor i would have to take a look at that case about and we would be glad to submit something supplemental on that case if you're one of the st separately we believe that the clearest basis for  go so the the argument that the union primarily relies on which is the authority misinterpreted the proposal for the authority squarely a draft this argument input no to live in of its ready there are the various provisions that are you know basically expressly c preserving management problem and is it your view that those that once someone had completed a year o characterization by the the agency never is certain that the prior proposal was not negotiable and presumably is because they felt that it allowed them adequate management office to work with others through brainstorming daily interaction developing a new strategy an arbitrator said no we don't i don't find that that substantiate in the authority agreed with without in that case and then you've already in this case of  big risk that the the impact on management's right in this case was not theoretical i mean the union calls it a get wildest assertion or a chain  to modify that perhaps the agency does have to approve expanded telework for somebody who's had performance or disciplinary issues if well so the the way this will work is there absolutely would be a grievance of expanded telework were denied because it's as if that was unreasonable so perhaps there is an issue even with prior policy and that that the parties bargained for which allows me the agency to deny telework if approving it would interfere with the end of his ability to accomplish its work i just i mean these people to be here in person a can't they can't work remotely any of them to be here to get the job done so those people don't even get get any target off and presumably if the agency could language is new so i got that to out for this proposal so the the the union basically says look they can do not i the agency in an eye for a litany of reasons for for any reason that the teller can be denied for any reason or no reason and it doesn't place any constraints on that choice that would still under the authority holding you can still be bargain able as a procedure right so that management  that was not an argument that was raised by the union so but i get i think that the another clue here is if you look at joint appendix fifteen which is a not this is ific proposal but it is part of the propose be expanded telework will not be a recently denied means that there are substantive constraints on management's ability to deny power because it creates the prospect the very real prospect that the denial will be i'm having a hard time following that given what i'm referring to are these thresholds prerogative on the part of the agency which remains in the policy and so the that's not really the grommet of your argument i mean you know that the notion that people will bring baseless grievances and that there's some risk that any employer faces that are wrongly crap that's that is arguing no because they think they are entirely free under the articles you did not work for even for reasons not for d any reason and the fact that there are a lot of reasons in the articles d that the agency could cite so deny telework doesn't mean that it doesn't have an effect on management's rights it just means that well there's a slight effect perhaps navy it's not that bad of an there's again there's an exception under management rights for procedures by which management's rights will be exercised so if the if the or if the union is free to argue well all we're doing here is just channeling management discretion into a series of procedure right they have to say that the job is suitable for telework they have to say that the he simply has shown to a fitness fertile we're right and there's all sorts of little procedural boxes but this is just at the end of the determine the place where work is to be performed so i think that if it recognized that the requiring employees to be out of but it doesn't really make sense given that if you're telling working your duty station is your alternative work cite nothing about this proposal nothing about it affects the timing of when you can be required to report your dut that so if it's certainly a fact whether you can be required to report to the office right that's a different question right that's whe whereas here under the threshold determination the management has signed off on the notion that it doesn't matter that the employee can do that work somewhere and then and end  never established or even argue that the timing of the work itself changes with the location never made with the analogy to when work is performed which is clearly a well established i when the work is performing the work itself for example for example in the case where employees were the proposal to allow that would be performed over the weekend the agency didn't have to argue well and their work the wording ruling rest on recognizing a management rights determine the place where work is to be performed in yes i mean it's recognize virtually not being able to have drop ins not being able to have on schedule interactions so for example you know the case where the proposal that authorities were that employees were behind a locked door r have no idea whether the agency cares or finds this to be an impediment maybe when people are in the office it does most of them question by email or skype i know we do that sometimes and my son was so it just seems like this is a classic  would note about this is that the the agency have the burden to raise arguments that it one of the authority to considers the authority as a questionnaire that t failure to explain aspects of the agency never established or even argued that the timing of the work itself changes with location work nor did the agency ever argue that its ability to supervise these kind of employees in this kind of job was impeded by tele work and then the authority doesn't distinguish the most closely analogous  that as will no longer follow cases held and otherwise what about it's this thanks to the h h s case and the f d a case explains the reasoning for that or what do you understand to be agency didn't in fact forfeit these arguments about the right to you know he's the with the very specific management rights that they weren't forfeited before the f r a and so might i guess my question is is what is the for example were even when parties seek to dismiss negotiating with the appeals the authority will say no we we feel like the labor management community is benefited by our decision so it will even not even the agency here presented an elaborate explanation of how the proposal would affect measure right it wasn't in some ways it wasn't the the precise reasoning used by the authorities certainly but there there is overlapping is good and it's free but then you know it doesn't make quite the same argument that the authority and it up making so became says that the union cites or really just they said agencies as you well know routinely do that very frequently will consider issues that are not raised by parties and it creates interesting issues for this court when when ideas when i mean that already has certainly raised issues to us on thursday in many cases so that is absolutely right there is it doesn't limit what the authority can say it limits what i can without the and i think that's in sharp contrast to the statutory a give to give parties notice of what they have to say in their briefs in order to get on the authority to decide an issue to be wanted to decide but of course there's we germans of cases where the authority has raised issues  and let me say before you respond that when i caucus with my colleagues because this jurisdictional issue is a frankly a new one to me i'm go both of you  and hope my colleagues agree with this to submit something on jurisdiction and on for future so in other words i'm saying you don't have to answer everything in the next two minutes and  management's hands are not tied in the way that our friend on the other side indicated to set its ground level you know apply for expanded telework certain things have already occurred the agency is already determined that because of the or position it is your physical presence isn't required in the office for the digital working you have the full is assessed for performance rating the president change their article is simply gives the agency that authority to make that call and assess decisions will be made on a case by case basis in terms of the interference with the agency's ability to accomplish work so any point that was a little bit i don't know for example under under twenty when i was six other consideration the approval or disapproval of an employee's request for telework will be based on whether the approve all will interfere with the employer's ability to accomplish that's not to say your honor that as if on its face that that that conclusion is baseless for example that there may not be disagreement on that point but that is that is that something green ball on a new ground because of the not unreasonably denied provision that applies to extend to tell our yes exactly your honor the status quo would hold us to twenty six the new language regarding expanded telework it's a supplement and the provision in question here regarding employee requests for expanded telework not being unreasonably denied that is again a nd layer of management's question even after you've jumped through all the hoops and you're one of the employees who the agency says is an ideal circumstance for to work for six days prepay period you've already met that threshold then you apply for the expanded telework agency management again and denied ever quest consistent with with the proposal so there is no situation here where the agency management is being dictated to about who can come to work or having you know the union dictate how employees are going to be supervised there are several layers of agency discretion here and again those are the bargaining parties viewed if that way the day of the record is clear that both of the bargaining parties agreed that management would retain its existing discretion under the party's existing telework article when it came to when it comes to denying telegram requests that's essential and that can be reconciled with this  percent of the work that the majority believes exists based on the play and working as a proposal there is no support for that and that squarely in conflict with the record second year on much of what you heard today from the authority it related to telework grievances complaints about grievances and that's true also in the agency's brief and below those are policy arguments that have no bearing on the legality of our proposal this is a matter that should be sold at the bargaining table if the agency doesn't like our language it can counter it if the agency doesn't like telework grievances well the scope of the negotiate grievance procedure is itself negotiable they can do things to take care of their policy concerns they should do it at the bargaining table those things bear no relation to the next i just want to make sure we're clear on the the right to direct argument in terms of the regulations and what i think is undisputed that the agency below made no mention of employee supervision whatsoever i want to make clear that our argument is based both on the regulations and the authorities interpret in precedent that president uniformly holds that where agencies do not support their management rights arguments where they're just bare has the ability or the authority to consider forfeiting arguments they just tell us that in those cases they refuse to decline to reach or work in an argument doesn't thomas whether they that the authority has that discretion to reach arguments that were not made there is nothing in the decision to explain when that is appropriate and so this court is unable to address whether