it please the court my name is kelly burchill and i'm here representing officer brian morris officer morris respectfully request that this court overturned the office compliance decision and remand with specific instructions to conduct a did noble review of all the eagle exceptions that were submitted jurisdiction is the only issue that in order to resolve this issue we need to answer two questions one whether the jurisdictional statute is that of a limitation of substance or specific class of persons and second whether this matter involves an unfair labor practice and i submit that first the jurisdictional statute that is in dispute that is a limitation of legal substance and not of collapse as that is addressed in other parts of the labor management relations act just just to make sure i'm understanding what you mean by that if you look at you know if we all look at the judicial review section are you loose and are you getting to the point that it's the judge just because it's limited to the general counsel misconduct to the complaint that doesn't take it out of the realm if that letter is that the point you're making by saying it's not based on persons it's based on subject it's based on labor unfair labor practices is my position that the jurisdictional statute limits matters only to unfair labor practices and there are two mechanisms in order to handle procedurally unfair labor practices up fair labor practices you mean to argue only arbitration to arbitration that include unfairly yes that is one of the two tracks yes yes and looking at the statute the statutory provision nontraditional you get there because of the opening part that says except for matters which deal with five u s c seventy one twenty three a warning to those matters extend your usual review of unfair labor practices arbitrations that involve unfair taxes ok let's let's accept that but what good is that if the provision explicitly limits the persons who can bring this action to the general counsel or the responded to the complaint well actually under five u s c seventy one sixteen and outlines how unfair labor practices may be pursued now there's two ways to pursue an under labor practice the first way is through office compliance prosecution basically what happens is that a member of the collective bargaining unit the union or the agency decides that there's a violation of the statute they file a petition with the office compliance any role in arbitrations and there's nothing called the complaint in context of tradition so you are wrong about that now a grievance technically is a complaint is sites any kind of contract to a violation now i'm typically in the parl dealing with federal employees an unfair labor practice may be pursued by the union in the form of agreements every labor grima it has a rules laws and regulations provision where in of the union that is the petition yes well that's not the general counsel i mean if it had set so you're you're right i mean maybe i reading would be different if it said the petitioner or the responded to the complaint than i could appreciate precedent that extends the right of judicial review of unfair labor practice arbitrations that involve an unfair labor practice but that let's be really precise about exactly what's going on here because it seems to me that when you say that extends all of seventy one twenty three extends but nothing all this statute refers to and i'm talking about to go to see three here that's th opening language says except for matters referred to in paragraphs one and two seventy one twenty three it's not saying as i read it least it's not saying except to the extent that seventy one twenty three allows judicial review it's just referring to those matters and those matters include is that see a an award by an arbitrator unless the order involves an unfair labor practice so i don't see where you're getting an actual authorization of judicial review from the reference to those two matters as being taken out of the authorization given to the general counsel and the respondent in section two zero two see three so the way the statute a set up it actually goes to my question i understand your question on i'm trying to get first and if you look at the statute itself you take away the initial clause where it says except for seventy except for five u s c seventy one twenty three wanted to and i only read that initial part work refers to the general coun and the respondent that's the initial authorization of jurisdiction however the opening clause creates an exception or it extends judicial review of those arbitration matters in that arise out up to extend rights for that initially did not exist for legislative branch employees now if you were to examine federal executive employee law that standard does exist where you can have judicial review of grievances involving unfair labor practices and it would have well or to do with if they had struck the broader aggrieved personal language in the course of the preparation of the legislation but that was expressed its drink and as i understand the legislative history from the statute in this case well the way the statute is written the plain language of the statute the way it is set up is that with the federal labor management relations act it's to be reading perry material with congressional count billeted act now if congress wanted there to be only unfair labor practices to be prosecuted by the office compliance then it would have made changes within five u s c seventy one sixteen now in five u s c seventy one sixteen deed which this is a very important part of my argument is that it lays out a two track mechanism for handling unfair labor practices the first track is through office compliance prosecution the second track is through grievance arbitration now if congress didn't tend to make it so that there was no judicial review whatsoever of arbitrations including those with unfair labor practices it would have struck that provision within the statute however that purpose vision has been extended so what has happened is that you've got a situation where the office compliance claims ok this is only involves under labor practices that we prosecute however congress has clearly stated and other courts have found direction which you're advocating today the problem remains however that you've got clear language which is not subject to any other interpretation i think the early going the other wet so  we get around that well examining the interpretation that that's been posed to me is that almost as if the reference to five u s c seventy one twenty three a doesn't exist  the central question you would have to ask yourself is why did congress put in that statute in that reference because that is the only part in the entire congressional accountability act where that specific part of the federal labor management relation statutes reference looking at that part in addition to congressional intent to maintain uniformity of unfair labor practice decision the only possible way that you can interpret the pla by that reference is that congress intended for unfair labor practices which are pursuing through grievance arbitrations are subject to judicial review but that my problem is the only way you can interpret it the way you want is to rewrite would you acknowledge the reference to general counsel or responding to the point that so we have to we write those words to include someone else we would have to put in the aggrieved party to and that was specifically taken out as that should to it that language that if that language would remain it would have actually open the door and broaden jurisdiction to not just include unfair labor practices but a whole number of other other complaints we're going to be that the congress wanted the labor arbitrations conducted  and for legislative employees to be final no appeals taken after that could that be an indication that maybe that was the intent of congress but it's clear they didn't want arbitration i agree that arbitrations should end with office compliance with the sole exception arbitrations where the central thrust is an unfair labor practice because congress intended for there to be uniformity within unfair labor practices now under the system the way it's set up right now the way the direct reference to the general counsel in the respondent is a specific reference to the office compliance and their procedures and the way that they handle off in their the way that they handle unfair labor practice prosecution however they needed to extend the grievance arbitrations to maintain that uniformity that's the reason why congress specifically reference the five u s c seventy one twenty three a one and two you mentioned in passing to did that if they put in the language he was suggesting that any agree person that would be clearly too expensive to go beyond whatever house if it's any person aggrieved then it opens up to any person who says wait a minute i have an issue with this matter  and it wouldn't be it wouldn't be more congress intended at the language that's used in the general thought rule equipment of the general federal equivalent is there are there are certain differences yes but isn't out  being matters arbitration matters where their central thrust is that of an unfair labor practice and what we're requesting is that this is consistent with the way matters are handle with the fed with the federal labor relations authority can i ask one quick question just moving on to another issue assuming we were to agree with you on this point then we're left with the question of how the border itself in this case implicated in an unfair labor practice given that the arbitration here was purely on a procedural matter actually unfair labor practices arose during the arbitration matter itself there was one unfair labor practice where the department failed no we phrase that there are a level the order here the order itself which i think is the reference that's made to the statute either order or award one of those terms the order itself didn't have had make any reference to the employer labor practices issues board they have jurisdiction or authority to get into the merits of the underlying grievance they have via laws they are allowed to conduct and noble review under two u s c fourteen zero seven they are ability award in this case would deal exclusively with the issues covered you can't file exceptions to something beyond what the arbitrator would so we're we're back to the same place right of just yelling with the timeliness that now an arbitration award that's not supported by law can be reviewed and that is one grounds for setting aside the arbitration is to say the arbitrator's decision ok and in this matter there were unfair labor practices are rows during the arbitration from the demand for  labor practices that are they were i'm sorry and then call it dealt with the merits of the award and legal exceptions namely unfair labor practices that arose during the matter during the underlying arbitration itself do you think the and what's the effect of the finding that the arbitration requests for sometime the effect is one one of the unfair labor practices was actually part of the griev that just that's interesting but we're going on to reach the merits when when there's a unilateral change in the grievance procedures that is an unfair labor practice and that is what we have going on today the unfair labor practices and there was a clear change in how the matter and how the department utilized the grievance time lines which led to the finding of not being arbitrary and with the unilateral three there was a change of law dealing with how removals are handled in the case in disciplinary matters now under article forty one of the contract there was a mandatory obligation for the parties to meet and read and renegotiate any any changes of law that impact the contract this renegotiation never occurred so we fast forward into two thousand and seven and then we have an issue where the chief clearly issues a final determination that he is going to remove officer morris to slater the union submit to demand for arbitration however the department takes the position that this matter is not article because it's not right the contract clearly states that once the chief of police has made a final decision then that final decision it the timelines begin for arbitration for the demand for arbitration however the capitol police actually took two different positions by two different representatives one representative stated that the matter could not be fin d intel officer morris had received had received his removal i don't know i think i'm understanding the scenario what your grievances i guess i don't understand why that would not be an allegation with regard to breach of contract and a grievance as opposed to what makes that you will be the f l r a have this rule numerous times that a unilateral change in the grievance process because the grievance process is actually statutorily mandated under seven sorry five u s c seventy one twenty one it mandates that the grievance process be fair and simple and as a result the f l i r right has examined this law found that any unilateral change in the grievance process constitutes an unfair labor practice and since this unfair labor when i did you make these arguments about how it would you make these to the arbitrator in the context of the earth ability issue the board i don't think there's any basis for arguing that the board did not consider the exceptions the board said consider the options are in line an applicable laws and regulations i by us of that would have been cited but his the board had occasion to consider this question before in terms of this provision i'm sorry which particular provision the well so that i do they have a lot of cases or a lot are at least some number of cases that europeans were raised an exception but they were not probably part be part of the arbitration proceeding and it would be a it invitation to bootstrapping see if a party agreement or prayer decides oh my goodness we're not going to be able to get judicial review of this unless we introduce under labor practices in the case now but typically would we expect that the board would at least address that even if they were just the result as what you  their allegations that were not addressed by the our prayer and for our good and sufficient reasons were not addressed by the are prepared now but even if they had been you'd say that we wouldn't have jurisdiction that that's there is somewhat of an anomaly in one respect and that is if the concern is about uniformity and you appeal law this isn't the way this arsed it was written it's conceivable that the board could seventy one twenty three is contained in so doing twenty three eight seventy one twenty three is so that a person aggrieved any personally greeted languages in  started when we start the general counsel order responded would it in your interpretation of it have any meaning other than what you're ascribing to it today in other words does that phrase given your interpretations provision it seems to me that because what you want with the first provision leaves us to is matters arbitration we're taking out arbitration awards that don't happen but it's really important that we be we're leaving in arbitrations that do have you a piece that's the only relevance of that proves yet according to your reading the next phrase of general counsel takes that class arbitration it would be a separate ca arbitration with unfair labor practices but it might if they aren't already deals with arbitration awards that consist of unfair labor practice allegations and arbitration awards that what you're talking about is an unfair labor you file an unfair labor practice based on the assertion that you're refusing to implement an arbitration award that is clearly viewable under this provision irrespective of whether the arbitration award were not to levels citizens that involve unfair labor practices are never reviewable of the c s a that is not true there is this scenario it may be a relatively remote or infrequent you can't go behind the  just to clarify a few things at the end of the day one is there's a lot of focus on two u s c thirteen fifty one and one thing that you need to recognize within that context was that the statute does extend the does extend f l are a decisions as persuasive president to ensure that there is uniformity of the at the f r a and the labor management relations at congress wanted uniformity and one of consistency in applying that act and all that we're looking for is that same consistency when it comes to judicial review of unfair labor practices now second there is one one thing that i want to make sure make very clear and there was the hypothetical where union wins an arbitration and then the agency fails to go for go forward with the award and yes it is an unfair labor practice however it is assumed that that unfair labor practice is only prosecuted by the os compliance however however under five u s c seventy one sixty d the union has the right to choose whether it wants to grieve the matter again or it wants to go to the office compliance in that situation the union can either one is able to control more its own destiny in its litigation strategy plus going along with congress intent to allow to promote arbitrations or to they are forced to ensure the judicial review to go the os compliance and file them for labor practice if congress had intended to have all unfair labor practices only be some only go through the judicial review through office compliance prosecutions it would not have included five u s c seventy one sixty