is the authorities interpretation is a reasonable and final utility offered reasons in support of the decision cannot withstand scrutiny starting with the tech structure and purpose of the statute the text of section seventy one of three hundred and fourteen states that conditions of employment means personnel policies practices in matters affecting working conditions here the notes and finds that there was an agency memorandum that affected working conditions but they found nevertheless that it didn't affect that it didn't affect conditions of employment that cannot follow from the plain text of the statu how did you get the st part that the authority found that there was a change that affected working conditions so this is a day that will willingly is that appear on whether the rationale was that there's an effect on working conditions that are nonetheless doesn't carry over the conditions of employment or whether it is that there was no effect on working conditions to begin with and therefore of course it doesn't carry a vacancy for petitioners reading is that the authorities decision in this case is that there was an agency memorandum that affected working conditions but those did not rise to the level of conditions of employment right and were you getting the st part i had i'm not saying that's not necessarily wrong i'm just saying what's the best indication that that was th harmonious and the specifically to cover both of them i mean that is the only way you're having this decision having a modicum of sense to the government because if there was no change the memorandum did not affect working conditions or do not change working conditions there's no need for any change in precedent because the memorandum that in effect working conditions you don't get there in the st place and so it only follows for me  that in order for them to reach that you must st have determined that there is a matter that affected working conditions but did not also affect conditions of employment what are were the conditions what are working conditions so the statute doesn't is necessarily also fine if i would not if i go out cut my grass from work but among ploy right i would not agree for the purposes of the statute that that is correct under the facts of this case important employer needs to hire somebody to means there's a difference or not it's not clear to me but it does come back to the point you are right why we can say not all work involve some point but all of it involves work  but that doesn't i don't know where that gets me in this case as you're well under the statute under section seventy one dollars of three or fourteen which is at issue in this case conditions of employment is defined no policies that says in matters affecting working conditions and so the distinction between conditions of employment and working conditions is not really helpful here because once you've determined that a matter of tax working for inspections and as the arbitrator found that changed the working conditions of those agents at the primary and the secondary inspection areas but the but that doesn't necessary now i'm not saying this isn't a decision because  i'm not sure that it is and i'm sure that it's not but i'm not sure that it is but that doesn't mean that that document is a personnel policy practice or matter well there's no that is not an issue here because there is no finding from the authority that that wasn't a personal policy practice or a matter there is nothing in the authorities decision finding that it was an over the arbitrator did they were treated it fine and that was a change in agency policy so one thing that i found interesting about the decision is that when it terms from setting out the legal change the legal changes that we're not we're no longer going to treat working conditions and conditions one is the same thing we're going to treat them as different  i just want to know what your interpretation is of what seems to me to be a little bit of a disconnect to say we're doing something different so we're now saying that we're doing something new and then in applying it actually we're relying on something we've been doing all the time we're doing something old and i wasn't clear to me how you go from saying that we're switching gears here to saying now we're relying on old gear that's always been in place well you're under petitioners relied on that precedent the very st case they rely on three cases for a proposition that a mere increase in workload doesn't constitute a change in conditions of employment however the facts in the three cases cited are vastly different from the facts here the facts in those three cases cited by the authority were cases where there were external factors that cause the change in working conditions is the you may be right if you're right about the way looking at that i'm not sort of necessarily saying you are but if you are then any complaints you have about the st part of the decision where there's been a shift in the legal outlook or just the relevant from your perspective because that wasn't applied to the nd at any rate so for from your perspective it's kind of just from you know from our we're changing to go on the other hand we're following cases that were decided before or changing the rules and who cares about the rules well your honor  down has seem to me to tell me you know i know you didn't want your grief doesn't say this but is it is a workload increase initiated by the agency a change in working personnel policy in practice are a matter of affecting working conditions subject of working that is petitioners argument here is that one there was a change to personal practice will matter affecting working conditions and that is it's not that whether there is an increase in workload that is not petitioners case here is that the agency issued a memorandum that made a change to the working condition has a statute doesn't require change that is that is correct however we've gotten wrapped up here in the meaning of conditions of employment and working conditions the authority has present but i believe it is understood you could hear that it change in conditions of employment is subject to bargaining eyes seemed to have at least two problems one these primary and secondary inspection point inspectors could be doing one job at the primary one day and the secondary at the next right  the words they weren't assigned if your argument is well the secondary is getting a lot more work when a primary could be a secondary the next day well  problem the other problem i see is that you make the argument that there's a loss of discretion in the primary inspectors because now if there are two occupants one's in us a citizen one is a they have to a commuter so court you may also modify the direction when safety to the public in our agents may be an issue but you are highly recommended to staff full time secondary positions that doesn't sound like a created safety issues reasonable safety issues that were forseeable because of increased traffic in the secondary area and safety is a working condition and so a memorandum which  impacts the safety of those important is because of an agency change in how inspections are handled and processed and they are given discretion you may modify this direction when safety to the public and or agents may be an issue and at the arbitration it became clear that from the agency there was a lack of clarity from their supervisors about what actual story they had to modify and you think it's also clear from from the better so one question is whether their rationale that could sustain the result is actually manifested in the authorities decision and i take it one point you could make is but there's not that rationale start out with that i think about understanding is implicit in the authorities determination that there is no change in actual primary lein even duties are secondary lane ija duties that is their responsibilities as work dealt  testimony the record is you know there's substantial discretion or the agents to modify and deviate from the policy for example during holidays when there's a lot of traffic when the secondary lane becomes too backed up that's  parent i think in the authorities minding that there was no change here to what the border patrol agents were actually doing on a day to day basis what was happening was you have two sides workers per or basically you have a primary lane you have a secondary la ages were conducting beijing comparison to the primary lane the reason for the post yes the testimony demonstrated was just so agents would have more time to conduct the same facial comparison tasks that they were already conducting the primary lane that was hardest directing traffic that was something that the agents had always done they always happen make judgment calls about well is there too much traffic in the secondary and laying out his posing the seat he has here and i think those types of i think with him from letter the language the statute which is ultimately what we have to deal with in some measure and i'm having a hard time understanding what the authorities rationale was there's a bunch of points in the authorities decision but i honestly i'm not sure i understand how it marries with the language of the statute because there are several rationale by which one could get home in the direction that the authority went but it's just not clear which route they're taking are they saying that there's not going to affect on working conditions to begin with are they saying that there's an effect on working conditions but it's not one that's borne of a personnel policy practice or matter are they saying that even though there's a change in morning edition's that's born of the personal policy practice or matter it's still not affect on conditions of employment i'm not understanding which route the agency is taking i think there's i think if you correctly point out or right there's a there's an interpretive dimension of this decision where the authorities clarifying the eating of the facts were great conditions of employment and it's a back previous authorities have said that the meeting is still broader conditions of employment that it's substantially means the same thing as working conditions right so whenever there's a change in working conditions there isn't necessarily changing conditions of employment i think the authorities saying as a matter of interpretation we're going to clarify for the benefit going forward that that is just not the case that there is all the words in this document that you conditions of employment means personnel policies practices and matters of acting working conditions so we're not going to give it is circular definition work conditions of employment just mean working conditions and you know as good radio properly pointed out working conditions is not a fine term this is actually so that it ends up being a very kind of loose standard and i don't think the authority had consistently all of the previous cases right it had said that there were some changes but what is that what does that have to do with this case because if i mean i think one can understand the argument that under the statute if you have a change in morning edition's it doesn't necessarily mean an effect on conditions of employment because it has to be a change in working conditions that comes from a personal policy practice are matter but for that to have any resonance with this case it has to mean that well this case doesn't involve a personal policy practice or matter or else i don't understand why we're even talking about the st article then when you look at the nd part of the decision there's nothing in there that tells you that really what's going on here is we're not talking about a personal policy practice or matter and therefore even though there's been a change in working conditions it's still doesn't translate into an effect on conditions of employment it's that it's not that language the effect then the effort to marry it to the language of the statute just isn't apparent to me and then what's said doesn't necessarily marry to that kind of logic either i think again what  as well but the duties were d changed because they're still doing the same thing the employee on the conveyor belt that we just talked about still doing the same things he's putting a spring on a widget but she's has to do twice as much work and isn't that something that you know it's constantly barking right i think that's to increase i think it increase in workload of the authorities decisions have been clear standing alone does not trigger  change in conditions of employment or not because it doesn't change the nature of types of duty that they're working in this case i think that you know there is the but i don't i don't understand that because if it does change working conditions which you just agreed i think and you have to that it does because the hypothetical obviously doesn't change in working conditions and the only way under the statute it doesn't translate to conditions of employment as if it doesn't have anything to do with the personal policy practice or matter it's not about nature of duties we already know that there's an effect on working conditions right only when you keep it from going to conditions of employment is if you say well it may have affected working conditions but it didn't come from a personnel policy practice or matter and i think if you're the only what is not the only route left i think the way that you get there is in this case the record showed very clearly that the agency had an established practice of mortifying inspection procedures in response to mission work with populations he had i disputed evidence that there were constantly being made changes to the way that inspections were conducted in prioritizing over a period of decades you made changes but did not change the actual conditions of employment and i think this is an area where you say wait i think this is also the c b p two thousand case which is i think on the words which the authority had decided where there wasn't change right they started moving about they had a practice or that were aliens were apprehended with where they were processed and then the agency immediate change where they start standing about apple because it leads to another station and there's two more concerns that there is and and it says both t v tucson and hagel and a f p involve changes to agency policies that change the working conditions of employment but did not change the conditions of employment i don't understand how that's even possible because under the statute if it's an agency a change of personnel on to your practice because i think you have to look at the back to that this is directed ultimately supervising just a memo that's not directed at the actual unit employees this is a memo to supervisor saying hey instruct the employees to do this going how supervisors are directed to prioritize and conduct inspections is a supervisory direction in other words that that is meant to kind of adjust inspection procedures just inspection procedures and that is part of the answer to judge from randolph's hypothetical that is ok you now have to do ten times as many wages but that comes under assignment of work and that is specifically cut out from conditions of employment working conditions that section says nothing of facts or that doesn't affect the reserve managers right to assign work yes and i think also the you have to look at the fact that this is all to midway whether the conditions of employment issue in all the cases is whether there's a changing conditions of employment because if there's no change in conditions of employment there's no there's no or any obligations to all and so i think that i'm like can understand your position if in fact for example  caravan of ten thousand people show up at the el paso border and suddenly inspectors are overwhelmed and it's silly to say well they're entitled to the bargain because their workload has increased the point is that if their workload is increasing as a result of some policy or practice or matter that the agency puts on them that's a different matter come to the question right i think here the as you look at what is  relevant change that has occurred is it is that it changed in the kind of extra no circumstances or is it something that's wholly agency generated and here i think big with the c b p with the border patrol there's always going to be you know this is a bass changing environment so here there was specific intelligence that people were using off of documents to try to get through the border patrol checkpoints so they made it and it was and it's not a practice by the agency of making changes in inspection procedures in was looking great i think the authority sat you know it it may be carol it was careful to know that there had been established practice at the agency level of making these changes to inspection procedures and i think it does have a point that there was an element there  requires a practice of the facts working conditions so you could have a situation where things are going on quite wonderfully for for a decade according to a particular memo something so good that those not exempted from from good working conditions in many ways so consider for example an employee has to work you know three salaries in a row overtime pursuant to a ship design procedure that has already been bargained well in that case there has been a change the employees working conditions they have never had to work two consecutive saturdays in three years but now you know they are so does that for barney amin's if this ship designed a procedure pursuant to which those ships your ships are assigned has already been bargained over and i think the authority has said  but one thing that still confuses me about this is and as you've already expends a good deal of energy in the st part announcing a change in the ways and opening things and then in the last part it's relying on precedents which by decision this specially the concurring opinions from chair of an abacus that goes for her to she's making the point the authorities actually make you distinction here between conditions of employment working conditions in those previous occasions like i go here or she writes a concurring opinion and says hey let's pay attention to the fact that we're not actually giving conditions of employment of working conditions the same meaning so what the authority is saying is going or we just want to be clear we are distinguishing between we are not holding that everything that affects working conditions changes the conditions an action that changed or in conditions in each of those cases in n z you and share it there were external forces that caused a change in working conditions there was no agency initiated change that affected working conditions and in those cases they found no change in the conditions of employment because as you thought he said in n z you the threshold determination is is there an agency initiated the agency did not take an affirmative action to change a personal policy in a practice that was the interest and work of i see i see i'm over my time if i may have just briefly to go over two more points real quickly  authorities argument that the agency has modified the practice at the checkpoints and that there's never been any bargain before it's relevant to the case of force the question here is whether the agency's action created an obligation to target to the agency change their personal policy practice or a matter affecting working conditions and finally with respect to the assignment of work here are some of the work is a management right that is not subject