could we find the the agency reasonably believed that the practice was so for us to win that all you need to find this is an overview of the authorities  decision regarding o p s regulation so you have a good overview of whether they are correct or not that this was a this practice was contrary to law so we don't look at the agency's interpretation of the o p m statute  because the agency had that discretion that was negotiable subject and that's exactly what happened up until twenty fifteen when the agency unilaterally made a decision that that excluded days that were explicitly listed in the regulation were no longer going to be allowed here i mean i guess i understand your particular point but it just seems a little odd because it's not like they made a decision  that neither the statute nor the regulations say that like the difficulty i think is one's own pm which has the authority to do that has done that you agree don't you that that if they validly do that based on the idea that they don't think they have legal latitude to do anything else that that eliminates the bargaining responsibility that's what i want some  and i think we have to look at the regulation and determine whether that regulation makes those things unlawful or we contend that it does not it says that those three areas must be excluded if the union were were to propose something that was contrary interpretation o p m doesn't discuss in the twenty two thousand and two preamble to the regulations issued shortly after the september eleventh attacks they don't discuss whether others who will days are legal or illegal they just say that they are doing this to require that these days be excluded because their employees are saving a euro could potentially lose pat doesn't say they would definitely but that they could but the one thousand and seven guidance is the bigger stumbling block is it not because there are of them says no on other conflicts little things first the o p m guidance should be of little importance to the court because it's not a statute it's not a regulation and it's not  extend regulation and saying under that regulation there is no authorization to exclude days so they do have the authority and we defer to their understanding of their period for excluding days where this or time has not actually worked why doesn't why isn't that the real hurdle for you that's how you clear it well of a few things one of the parties never read that you look at the european gardens it talks about not being interested in ours but then talks about being able to exclude longer periods of time like there's a fine we're going to deal with the beginning of the end of the period of measurement and i'm not using the right technical term but you know we're going to start a new period of examination from the end of your family but that is not the same as you know last week you took a sick day next week you're taking a personal day we're going to count we're going to sleep all the that's a everything is up to the agencies discretion as well that first that there are extended periods that they're saying are not allowed to be excluded now for instance military that if an employee is gone for several weeks of military leave well if they have to be of use it when they ask for it that means the employer can't require them to use it and the supreme court rejected an argument saying that that opinion letter was not entitled to deference and i think that's basically the same thing as what has happened here the opium periods of vacation or periods of military leave that allows them to look at the time going forward so that so that they're not losing out on a year because of that here and those cases as i'm sure the authority will point out related vacated but they were vacated on different grounds they were vacated due to the passage of the administrative leave act that was that was passed during the pendency of the appeal this court remanded involving the border patrol were explicitly said that the employees in that case who were one hundred percent official time could not continue to receive and exclude days because those employees had no expectation that they were going to continue working a  scheduled overtime which has to be scheduled an advance of the administrative workweek so while an employee make their annual rate may draw from twenty five to twenty or fifteen or ten percent due to not being able to exclude a period of leave when they get back in the field they're still going to be working  excusable is appropriate in this case because this the decision was in the discretion of the agency and when it's in the question of the agency the proper thing for the agency to do if it wished to change their practice with consistent with the purpose of the statute which is this unpredictable if mr plea uncontrollable over time is to be compensated how is it consistent with that statute to say well you're going to factor in the some quotient of it mr lee unpredictable over time to time your money going out work they go on vacation that you're having a medical procedure that you're doing military you're doing something completely different it just seems one might argue that it's inconsistent with the very concept of compensation for extra hours that weren't work they could have been anticipated not taking the position that it's inconsistent with the statute that there be a school days and all additionally what the statute says that five u s c section fifty five forty five c two is that the rate is determined by taking into consideration the frequency and duration of irregular unscheduled overtime duty required in the position so it does not preclude but that excluding any at this time when this time is excluded what you're focusing on is the time that the employees in the position performing work in the field and violation of section seven one one six eight five of the federal labor statute when it unilaterally changed its illegal school day as policy and offer post imitation bargaining to the union they also add there is no agency has no duty to bargain over any matter to the extent it is inconsistent with a government wide rule or regulation that the authorities took the position in the vacated decisions that that this was permissible and what's your strongest authority for the notion that those decisions vacated on other grounds lack presidential effect my understanding was that they entirety if the authority was going to carve out a particular reading or particular section it would have done so here it didn't neither party filed an appeal to this decision so apparently everyone agreed that the three articulated it to five fifty one sixty two sing in gene these regulations provide for only three categories of time that may be excluded from the cause of the review period and those categories are related to temporary assignments not to the use of paid lea miller said may direct the court's attention to finding four of the c p m ninety seven the five which states there is no authority to reduce the number of weeks by subtracting hours of paid leave o p s published interpretation of it very own regulation is certainly controlling regardless of age but but don't go on to say that there are there could be some circumstances where the opium described in this guidance was that while there are some there are only the three excludable training days to calculate the rate there was still review period and o p m said that the agency's ha example because then that guidance says that this permitting of gaps in the examination period will accommodate their family medical leave act requirements however you know whenever you needed to take and and if the agency's position or of him special was that you had to reconcile the two then it would seem like that would require more excludable days rather by definition the rains are going to vary though he is going this doesn't guarantee that there would be no impact on employees just it would lessen the impact by varying the review period bargaining the authority has consistently held the agency does not have a duty to bargain prior to change in illegal practice in order to bring that practice into conformity with the law this court has twice come to the same conclusion in cases issued in  bargaining in the federal sector because it provides a bright line rule that will facilitate consistency and stability in marketing relationships we have to score to deny the good morning america piece the course juice on behalf of the interviewer agency i'm not going to go on at length with an affirmative argument the key question here is to the agency have any freedom of movement to adopt any method of calculation other than the simple average they don't  requires and the simple answer is no can see that in the guidance you can also see that in the regulations and the authority currently considered both and answering this question i want to address a couple of topics that came up in the colors of my colleagues and i hope that i can offer some clarification judge to with us but the fundamental purpose of the regulations in statute here in the fundamental purpose is to calculate the actual average of eighty two hours that employees are working not you know a gerrymander artificially increased fridge by picking and choosing periods of time employees are actually working any of the goals to get an accurate count and the regulations appropriately do and typically the rate at which employees are compensated is conversation that's going on here you know it's sort of rough justice that's why there's a stepwise function of the reason a little i think that is exactly that the point is that it makes it more plausible that congress did consider some kind of play in the joints some kind of approximation rather than an hour for hour just seems a little odd that one would be getting you know only for that overtime hours actually worked and yet have this bracket system where you get basically underpaid proportionally right now for the overtime hours why it wasn't to begin with you know i think all of this discussion really goes to issues not probably before the that statute that says that we're compensating employees who perform substantial amounts of aid work so we're already told by the statute there's going to be some types of a you will work you're not going to get compensated for at all o p in sort of three hours average threshold to even be eligible for compensation so there's no doubt that o p m has a reasonable construction of the statute and saying look there's going to be some play in the joints here  was not properly before the court here so i don't think you need to address us moving on that there was a discussion about the twenty fifteen twenty sixteen official time cases and there was a suggestion that they were vacated for a specific reason about you know it ministry of leave  about you know historical review periods and f of that same provision which says you need to revisit your determination about calculating rates of eva pay at quote appropriate intervals so the regulations that are due leave some room for adjustment we don't say question came up about how we're going to handle going to shipping for intermittent definitely believe most want to make clear that this reasons was not predicated on that specific type of as applied challenge at all and i think that would just come up you know if there was ever an instance in which an employee the lead to their specific greed available they have suffered because of say a lack of window shifting for that kind of intermittent leave i think that could be addressed in appropriate future proceedings but it has nothing to do with what's someone who says get to decertify from a get compensated for the same types of hours under other forms of being paid i just don't know the answer to that question and the reason i don't know is because the unions never serve me that a point to contest station and so of course i just don't thank you and may please the court it in their argument the authorities counsel south of there's no proposal issue here i don't think that's really an accurate statement because the union different pose of the status quo being maintained and that the agency not implement these changes part of the bargain and the agency reject that saying that the status quo was contrary to law which obviously the union disagrees with so there is a proposal that things return to the way that they work and that's what we're asking you