the department by late at the congressional accountability act without identifying any evidence supporting this conclusion because there is much today i'll talk about three things the board did wrong first the more determined that protected activity was a motivating factor in the department's treatment of officer consuls second the board determined that the the department did not show that it had a legitimate reason for the discipline furred based on a number of factual findings the board made it found that the department's reason for disciplining officer consuls was protection the people who gave the discipline the police they don't have any a lot showed up and it would be against the law to pay him for a full period of time to be totally against the law if he didn't do it so i don't understand why the  and then the board reviews those findings of fact that is correct and my understanding is that we review a finding of fact force and there is substantial evidence that is correct right and your the data points time he was paid for the time of which he worked and so let me back up force not him again for the full years he didn't have a deduction for the twenty nine minutes he was was using it was paid from the moment he clocked in which was at seven twenty nine am but let me back up and address the points that you've raised the issue here is whether or not for those factual findings the office of compliance board of directors and the hearing officer had substantial evidence supporting those findings for the first issue what's missing from the pairing officer and the board's conclusions is number one also the consul's wasn't sacked up without leave there is a policy that defines what that requirement is work he did not report for duty until eight fifteen that is he clocked in at seven twenty nine am but did not report for duty at the capital division until eight fifteen  leave his post because his next post wouldn't have been until eight fifteen that is not what officer consuls testified to officer consul specifically said he assumed his next post would be building control which is a post that just twenty nine he did so what was he doing between seven twenty nine and eight fifteen all that we know is that officer law clocked in at seven twenty nine at the u s capitol police headquarters which is about a quarter and a quarter e mail saying ok we know you don't feel like you can make that shift so i'm telling you now that officer why would be fulfilling that ship and then officer y shows up thirty minutes late for that ship who is responsible for the fact that the first thirty minutes of that shift there was no officer there officer x or officer was officer x and here's why the department has presented evidence that can you point me to something in the record that shows as a matter of capitol police regulation policy standard operating procedure officer  x is on the hook after he's been told that officer y is going to be fulfilling the shift that it's still officer x that is responsible for officer wise tardiness to the sh yes the department presented evidence that it has disciplined officers and just the situation you describe that evidence is located at appendix seven eight five and seven nine nine in both of those cases an officer believed he had a person coming in to work his shift as a substitute but he entered into a private agreement in other words just as you described receiving some sort of communication well this one wasn't a private agreement between law and consul was it was an e mail from somebody else in the police department another office and let's say that it's also clear from the record that sergeant floyd knew about this  reassignment of the shift from khan's us too too long let's be clear only a sergeant has not only sergeants only a department official has the responsibility for reassigning the ship so even though the department a louse substitutes to work for other employee what do you mean by an official a sergeant is not an official an official is anyone above this the sergeant level on a bluff so we make a distinction between officials which are management personnel and our officers so the fact that sergeant floyd knew about this reassignment doesn't matter i would say that the fact that sergeant floyd at some time learned that someone was supposed to be coming in for officer consuls is a relevant they were waiting for someone to show up for officer consul so that they can then switch out those two officers there is no evidence in the record that any time anyone said to letter there was no accounting for the fact that officer of the law in fact filled the ship maybe was a little late but there is no discussion no explanation no way that active and in terms of whether or what are the facts that might support that conclusion here are the facts and it's undisputed in the record he was ordered to stay he said he was not going to stay he was told he can thirteen i wanted away he left before any substitute arrived and no one at any point told him he could leave at seven fifteen am there is absolutely nothing in the record that suggest that an officer can determine when he wants to leave without receiving the consent of a supervisor to do so when he has been ordered to work and that's why i say that he was absent without leave and there is no facts that dispute those facts beyond that officer law was not working at the time that officer consuls left so for that reason the question before captain biology was whether or not at seven fifteen am officer consuls was absent without leave and based on the evidence of the record including eviden are requesting that the decision of the board think be vacated for the very reason that the evidence in the record does not support the conclusions that the board rested on specifically the board determined that officer is protected activity of raising bargaining units members concerned about the additional duty draft was a motivating factor in the department's treatment of officer thomas and if you believe it was absolutely mean please the court before you is a decision from the office of science board of directors this is an entity created by congress was to five years from across united states experience in the area of labor and employment law  who decide these cases they are charged with maintaining labor peace in the legislative branch and they have a lot of discretion and not only in determining what a violation is but the facts recreating it the interesting thing about the statute is it actually gives priority to the hearing officer and that the board is subject to the same standard of review as this court it's another word so they cannot overturn a hearing officers decision if it is supported by substantial evidence that one hour period but when you begin with the chart which was he was absent without leave and you look at the investigation that was conducted the explanation initially offered by the capitol police is that there was a thorough very when you're sure he wasn't man first of all that there is insufficient evidence of the record for that because the investigation there was a sham investigation that there was no investigation for going where there was an investigation  clock clocked in at seven twenty nine but because there was no station to report to at seven twenty nine because the c b c the visitor center doesn't open until eight thirty officers is the only place they have to report to is at eight fifteen which there's at least between seven fifteen and seven twenty nine this position was not filled again certainly there's evidence that was clocked in at seven twenty nine and at seven fifteen cancels the clock out of because there was where in the record i couldn't find it any place does it say that even though no one clock clocked out at seven fifty in the next one in it seven twenty nine they were somehow i don't think knew the law was going to be late and he told lieutenant mcbride that when he was asked the question whether there was any manpower need so i'm ok i'm good so whatever this fifteen minute gap was it doesn't seem to certainly  at seven fifteen seven sixteen maybe it doesn't matter whether or not officer lot ever showed up at a later point in time because of the fact that at that moment in time if you have a substitute that's of replacing you you don't call you president say can i leave at the end of my shift no one has ever done that in the history and certainly no one has ever been disciplined for that there's no record of anyone ever being disciplined for leaving your shift at the at  your schedule time knowing that there's a qualified subject that's going to handle the unscheduled shift that that had been suddenly given so that's what the evidence shows and i think that's what the the board relied on that and the hearing officer it relied on to say this is are not required to be signed out once you know so much coming it's ok to leave they knew somebody was coming sergeant lewis and so that's your view of the substantial evidence to support your conclusion right that's correct and the other is coming in and saying well on this specific point you're trying to make make me believe that there are requirements and that if you leave without being told it's ok to leave and then you're in a role and i think that point was not leave your position until your granted permission to leave my house and chargers are that there is nothing in writing there in fact there were no written requirements that really deal with these last minute substitution so you know i thought the thirteen one zero thirteen zero one policy applies there it's only contemplating situations where you've learned about your new assignment to some shift more than twenty four hours ahead of the beginning of the shafiq i think  officer cons a situation where you learned about it an hour before the new shift started would necessarily fit within the thirteen zero one policy as it is expressed is that right i think it's fair i think the record established that the right to qualified substitution exists even on these last minute sub situations but there isn't any he's established procedure in terms of when you have to get the form in or anything like that that that's what the policy is to deal with it that if you economy are you directing has a different direction i would like to but i would also just like to take a minute and perhaps go back to judge chen's hypothetical and so then i'll i'll go in a different direction if that's all right use your time would be officer x s fault well the record evidence is clear and the hearing officer consider that this evidence that that that's not true and if you look and say it's his fault if he leaves the station totally on guard is you know these are difficult times that we live in and there was at least that period from seven fifteen seven twenty nine when there was no one  if you look to the two examples that i'm going to point you out which are of a p p agnus talk about the second ok well here but this it has a direct relevance here because in those instances the post went completely on manned and what the capitol police  have been admitted into evidence there is no evidence in the record that shows that officers have to wait and do a kind of man to man exchange the general practice is just as officer khan's osa followed you have a substitute arranged soon that substitute is going to comply with what they have promised the capitol police they will do and shall walk and so when an officer cons us checked out at seven fifteen he had been told that he had a proper substitute the department knew by seven o'clock lieutenant mcbride had confirmed for sergeant floyd that he knew he had a substitute coming in and so i would submit that on the evidence that the hearing officer considered have officer cons those followed the procedures that were required by the capitol police and so could not have been a wall is it your view the officer in law was a wall from seven am to seven twenty nine unfortunately there was no investigation into office it appears that officer law would have been the one to have been under investigation and i think that brings us to why we're here today and that it wasn't officer law it was chairman tonto's and why was it chairman  communicated directly with the then police chief dine about the problems that exist for capitol police officers when they are emergency when they are how we were maybe that's why the that we really answer the question of whether it's appropriate this capital punishment is an extraordinarily responsible position and for any person to walk away before their replacement is something that you can shrug off no matter what else no matter what rationale one looks for in their relationships and their concerns to tell us in the brief since he's complained about what happened we know there was this fifteen minute period at least where the position was unfilled the question is is there any authority to discipline the person who  would say no i say no i say under the way the capitol police implements the thirteen no one program in practice for these emergency holdovers which is different from when you have you know more than twenty four hour notice it is a different situation in the way the capitol police has in the past treated these situations the way the officers have a system designed where that they can find these very fast thirteen no one substitutes that what officer condo's dad was not against capitol police procedures and should not have subjected him to discipline and i think the hearing officer had an issue that for the capitol police to do so we had a two day hearing where hearing officer heard all of the information from the capitol police and heard the information from officer khan's osa and found based on what he heard that the officer cons of simply was not a wall and we're here today we have to give that some deference if there is any substantial evidence in the record and i think what we've been through showing that officer concepts have relief arranged the supervisor knew the relief was arranged his relief appeared his relief was paid for the entire shift all of that evidence is frankly more than substantial and supports the hearing officers well reasoned decision that officer condos was not a wall and because he was not a wall that supports a finding that his protected union activity  before he can walk away from even though it's shifted them to my knowledge there is no such policy and the hearing officer actually considered over seventy five different thirteen zero ones these forms that were not fully completed for emergency situations like this and that the united states capitol police had never had a problem with forms that were submitted after the fact forms that were signed by all parties forms that didn't have final supervisor approval the fact  requirements for the engine and officer cons as in his capacity as chairman had been in contact with the chief of police to try and work out and try and figure out a way to address this issue and it had never been addressed the only time the capitol police has come down on an officer for this kind of casual daily almost daily thirteen no one occurrence is we think quite notably the day that the chairman decided to raise the issue again with the chief of police and all of all  cindy and pointed out at seven eighty five and seven ninety nine in both of those examples there was absolutely a p p x seven eighty five and seven eighty nine in both of those examples nobody came in there was for allowing for substitute usenet there is but that system intuitively has a built in a process by which the officers choosing to world electing to transfer their shift to another person must get has to be seen there want to know somebody is coming up there is a requirement that he has to work it and so getting a promise from another officer that somebody is supposed to be coming in and not having that essential consent pe only when there is a thirteen on one form that is completed and signed because once you have that that means that the transfer the responsibility for working that shift has been transferred to the substituting officer i've identified two four hours so the thirteen zero one policy does require twenty four hours in advance to submit the notice so for that reason that portion of the policy likely does not apply however there is evidence in the record they still use the thirty no on an officer who was drafted for dish will duty at the last minute which is the way our business on rates when something arises that he can still get someone else to work for him if he needs to do so and that's the system that was in place here but the critical piece of that is you need consent you cannot just walk off a post there is no evidence in the record that allows somebody to walk off a post when they haven't gotten consent in advance and look you can thirteen i wanted a way he understood he still had to work there is no evidence in the record that when an officer obtains be another officer confirmation that he will be having a substitute come in at some point up that there are gaps in our ability to secure the capital which is the number one terrorist target in the worked and so when we identify gaps that's why we draft people to work additional duty we do it in couldn't the collective bargaining agreement so it's been a procedure that's been negotiated with the union and that's the procedure by which officer consuls was drafted there's absolutely no reason that he could not stay and continue working additional duty as he is required to do by the c b yet it specifically states that you can only not work additional duty if you're excused and there's no evidence that that happened here no one at any point said the officer cancels you can leave that did not happen and when he left there was no one working in his stead that's absolutely not in dispute here moreover  board and the awful piece stated that there was evidence of thirteen zero ones that had been submitted that were completed again the issue is here isn't whether or not there was a thirteen zero one completed or not we know there was not who moved t they were the final forms we don't know that we don't know if the substitutions occurred we don't know whether the person was given consent or deny consent we have no idea what those forms showed in part because they were submitted two weeks after the hearing occurred