applies to all three of these cases that what we have us a situation in which these provisions under title through have incorporated various provisions relating to the n f l r i say that here in title five and the result of that is that it creates a certain amount of confusion trying to parse out how to address what parts are incorporated and what parts are replaced by title to and that comes up in connection with the jurisdictional issues here so why don't you go ahead and of rust certainly and you're right the capitol police has been wrestling with this issue for twenty years since a congressional accountability act came out and we look at the various provisions to try and make sense out of the statute and how it all works i think in our presentation we we came up with a way that it actually does work in the statute and what congress is intent was because we typically will start with a congressional countability act and what was congress trying to do with that statu complete seemingly to have added to it unfair labor practice one so let's take a look at thirteen fifty one because that one takes us a little bit of time to unpack under thirteen fifty one the the statute giving this court jurisdiction and let's take that slowly the first sentence says that except for matters referred to in paragraphs one and two of section twenty seventy one twenty three those provisions are found under the c one provision of the statute so you'll find for example seventy one twenty three eighty deals with arbitration wards under seventy one twenty two and seventy one twenty so the first step was that the matter shall be submitted to the board of directors of the office of compliance once they've done that the next sentence says the board shall refer any matter under this paragraph to a are right right so there we have it and is there anything that sheds any light on whether congress wanted to allow the employer to petition for judicial review or to require that the employer wait and refuse to comply and have the proceeding come up hasn't forced her say yes i think the indication is that as from the studious or review section of the congressional can because all of the u s actions would originate under paragraph two congress knew what it was doing because if you look at the first sentence they used paragraph one and two section seventy one twenty three so clearly t and reviewed by the board in fourteen zero six the those are all complaints and i guess it's not clear to me that if this isn't a complaint that we have any jurisdiction under the in forstmann section which is expressly about enforcing something that goes through the fourteen zero five complaint procedure so look at the policy behind the bargain over any condition of appointment unless it's inconsistent with law and who's making the decision of whether it's inconsistent with law and the under the congressional countability act that authority has been given to this court to determine inconsistent with law conflicts with statutory provisions constitutional arguments again to read the statute the way they're presenting it it would mean the office they're not trying to deprive you of judicial review the only the only question is what's the what's mechanist here but i guess i'd start with what did congress say it said paragraph one or two to read the statute the way they're presenting it you don't need  in that by the adoption of seventy one seventeen seventy one eighteen sometimes and here it is discretionary and sometimes it's mandatory your honor because congress chose to use the word shall the board shall and i don't think that seventy one seventy was incorporated into the statute that we should read this provision is overriding the discretionary nature of yes your honor because this is the congressional accountability act and we start with a statute that congress passed for whatever disagree at all with that and in fact the hearing helps that it helps focus what the issues are it focuses the facts and we'll see in the later argument there are a lot of inconsistent wrong acts that the office compliance relied on to make it had the facts in the record develop up front we when we might not be here that's where the hearing is a point as a practical matter if in fact horsman it is always available here when after they use the board as a negotiable any ruling and you say we don't like that we're going to ignore it and then they'll come here what practical difference is there is there between whether there is jurisdiction over your petition for review or jurisdiction over their petition to enforce i don't think there's any practical difference i think the board makes some kind of argument that if you take none you know take the absence of jurisdiction over your petition to review that tells you something about how when they come here to enforce our review ought to be with a very light hand right is that that is their only difference i think that again the policy is where i start with to work on the relationship with the union it really shouldn't be involving the office of compliance at all in the process and there are steps along the way that we can do that with the hearing process if you're waiting for us to come in or cement and it looks like we're not complying with the law and that's just not a place that the department wants to be and mean it's it wants to have good labor relations it wants to work i'm not really understanding what you're saying if if we were to read the in force  having to raise the issue when we're still proceeding as opposed to being able to fish when you're on the practical difference from our standpoint is that you have a better record developed when it when you have a hearing if it's just the enforcement and there's no here i  it may only be me i think with me if i keep getting confused between whether we're talking about jurisdiction or whether we're talking about whether you have a absolute right to a hearing parenthesis if only to ask can we just focus on the jurisdiction question because then it reads out this whole process that congress came with under thirteen fifty one c one what votes there be a difference in terms of the time in which it takes to ultimately resolve these questions in other words would it would it make more sense to have whatever review is appropriate done at an earlier phase in the proceedings rather than waiting until the enforcement face it's hard to say your honor because if they followed the statute you'd have a hearing officer decision that fleshed out the issues you'd have those issues of feel to the board of directors following their reasoning you wouldn't have a hearing you would have that process to appeal they would make the decision in the first instance and so by making that decision insistent with the idea of an expedited process but i'm not sure how expedited it is depend on how long they take to make a decision sometimes can i can i ask you this do we have to if we accept your siri about jurisdiction which i think has some textual basis do we have to say something in morris is wrong i think morsels correctly decided because it was an arbitration award pursuant to that first sentence of seventy one of the judicial review of thirteen fifty one c three except for about whether the grievance that went to arbitration did or did not involve an unfair labor practice and the more this court in morris at the very end if union says we don't need to decide that so we have to assume that he did a great  did involve an unfair labor practice in which case the seventy one twenty three exceptions to the non review of villa the principle wouldn't apply correct so if if the court had decided that issue on the merits then it would have been an unfair labor practice for which they had jurisdiction rapid and then morris says expressly the statutes defining the right of judicial review to judge a review or decisions thus make clear that only the board's general coun and that responded to an unfair labor practice which we do not have in front of us are authorized to obtain review in this court of an adverse or decision unless you tell me that we do have an interim labor practice in front of us but i seems pretty clear what maurice's thing and it's contrary to what you're saying so you have to say well that issue wasn't just victim well the negotiable it was not before the court actually they didn't talk at all about the negotiate really petitions what have thank you your honor here the union found that there were three proposals that were negotiable the starting point however is the statute itself if you look at their decision they not  right now yes you're not relying on the specified by law provision correct correct we are relying on seventy one seventeen which says you have a duty to bargain unless it is inconsistent with law the three laws that it is inconsistent with are the special rule on terminations that congress passed giving the board approval of thirty over terminations under nineteen no seven a one b the second statute is the congressional accountability act which took out the capitol police or has the final approval authority out of the statute and not making it subject to the labor relations provisions and the third statute that it's inconsistent with section seventy one twenty one  procedure seventy one twenty easy provides that if you have a choice of alternative form you can either bring the grievance through a negotiated grievance procedure or you can bring it to the statutory appeal  but it's merely an election of forms it's doesn't create it's own for if you look at seventy one twenty two after that then goes to the judicial review so if you have judicial review in that statutory form you get that judicial review in the n if for and then seventy one twenty two f provides that for those matters that fall under this judicial review in this other process those cases do not go to the f l or eight four decision those cases are exempt by the or on a determination of is to be final i'm not sure visually reviewable right well approval must mean something right and in that same statute that you know if you think about the no specific provision that says that there final right it does not say that but what else clint can approval meet because by definition i mean if you look at the fort stewart case in the supreme court one the that was i think about  otherwise africa bargain a bargain ability because well why is this a stronger provision than the one unfortunately because the focus here is on the inconsistent with law so let's play out the scenario the board approves of terminations and so then you have this inconsistent with law the board says we've actually sized our statutory authority chief of police we've told you we recruit that terminations that's our decision that's our statutory decision by changing that or by employee that decisions on review by anybody congress clearly could have meant that bargaining unit employees got more rights than any other legislative branch employed than anything or aggression that would be the consequence grievance procedure as it goes to an arbitrator an arbitrator from overturned terminations that presumably is what the sticky crime so why is that that arbitration decision wouldn't be subject to any kind of yet your precise argument about why something in seventy one twenty one and twenty two would violate is inconsistent were an arbitrator permitted  twenty one is actually a limitation provides and one of those limitation for vision's is how you handle terminations and similar matters and so what the court has said is we've created but when you don't have a statutory appeal right then the courts have said seven serkin the d c circuit have looked at this and the said seventy one twenty one does not create an independent right to challenge terminations and that's why that is important so that has the clause there other than award and everything's either party to arbitration be filed the authority an exception to any arbitrators award pursuant to the arbitration other than or an award relating to a matter one twenty one and what are those with what is such a matter if we look at seventy one twenty one and seventy one twenty one now talks about a mattress cover covered under section forty three zero three and seventy five twelve of this title those are termination to motions greater than fifteen days which have been raised under the negotiated grievance procedure in accordance with section seventy seven zero three of this title pertaining to judicial review shall apply to the ward of an arbitrator in the same manner and negotiating grievance procedure judicial review in of arbitrators work may be obtained in the same manner and on the same basis as could be attained of the final award under applicable appellate procedures not getting i'm sorry where does this how does this say that so together when you read those three provisions together and that's that's the d c circuit decision the seventh circuit decision and the ninth circuit says and every court that has the appellate court that has looked at that they breat seventy one twenty one has concluded it's not an expansion of grievance rights that goes to an arbitrator and then is on a reviewable it's a limitation because congress adams i'm sorry i do not understand what your argument is your let's assume that you're correct that the arbitrator's decision terminations would not be judicially reviewable where does that get you well it gets the arbitrator to have a final say over any terminations of a legislat branch employee well so what well that doesn't you know they would have greater rights than anyone had had had been given in the in the federal exe that can a branch and there's no indication that congress intended to do w congress intended was to give basic rights to employees here by doing that that the the final person and these are officers that carry got the person that is making the decision as to whether that officer should be carrying a gun is not the chief of police it's not the board that has the enforcement of the legislative branch the house and the senate in the capitol it's this outside arbitrator that's making a decision whether to put a gun in an officer and that's a policy problem alternately when congress came up with as if the if the congress had intended that an arbitrator makes that final unreviewable decision i think you'd see it somewhere in the statute that because that's rather a lot of federal employees with guns in their hands that get there in the same position the difference though is that case ultimately gets reviewed by the m s p b m by this court so that's that's the difference there there's a review process of that there would be none here and that's pretty significant every person to get this get reviewed by the n s a it comes directly here correct but there is a review of that decision in this setting there would be absolutely no i think i think understand your your point a submission about the interpretation of thirteen fifty one c provisions in your brief i don't think you ever said responded to the complaint is only responded to a filing by the general grievance and arbitration process that was in front of the court that it's true but what if you look at thirteen fifteen one c three what in your view does the reference statutes which includes seven one one seven which is which says that the board shall have discretion to decide whether or not there's going to be here or it also incorporates the board's authority in unfair labor practice so it talks about seven one one six and seven one one it so by referencing both one and two it allows a party either to either the general counsel or the responded to a complaint to raise issues regarding the what authority the board exercised under one or what the general counsel exercised under two so and if the if the general decides he or she is not going to proceed in filing comes a complaint and a person who from the employee or union or somebody who files ace makes a submission trying to avoid the work completely makes a submission saying here's an unfair labor practice the board gets to go ahead and do that it gets to resolve that right it doesn't say what general counsel hasn't found anything so go away i don't think it does that i mean what is it what it says is that the board has the same authority as a federal relations authority has with respect to unfair labor practices yes i mean the if this if there's no complaint here right and the only if you have to go back to seven one one seven one one seven explains what the procedure is and when it comes to with it this way you can't be here under enforcement tell me why this is wrong but put it but it to you just tell me why this one of you can't be here under fourteen zero seven eight two unless there is a complaint that started this proceeding because that's what the board ruled not the only the board's authority to issue a decision the only authority is under fourteen  maybe fourteen of sixty is not limited to situations where there is not a reference you are correct i mean i think it's really the last sentence that that's applicable and that is a decision that does not require further proceedings  the other way that we could enforce this is by filing an unfair labor practice saying they have failed to comply with the board order and that would that go through the hearing process and we go to the board and that would be another two years read so the way we read the statute there is enforcement authority under any decision of the final decision of the board that we can see can fill in for some authority before the court and if you read the purpose of seven one one seven along with the regulations this is supposed to be an exit out of procedure and that takes you back to the authority they have under seven one one thought because under seven one one seven petitions i don't write you know i don't think i don't think that is taking me back you need for fourteen zero seven eight t jurisdiction for there for there to have been something that came through fourteen zero five to fourteen zero sixty and fourteen zero five g is all about a complaint so if you know and i'm happy say you had that and that if the we're hearing right is waived it's affectively encompassing whatever could have gone to a hearing officer but it seems to me that that reference of thirteen fifty one c one months makes reference to a hearing officer in the north believe this people are pretty that's correct and if there's any doubt the regulations make it clear the board did issue regulations which pretty much mimic seven one seven and those regulations were less necessary to comply with this statute my niggas unless it's going to cause us to implement the statute in compliance with if it were otherwise play in compliance with this fine provision the statute would be about the best case that we're talking about here they start with nation questions i don't see any facts anywhere in the picture this is all legal analysis of there is no point where i thought anything other cases a little bit later there might have been  under a not under article in a collective bargaining agreement the union has a right to bargain over the years in power and if the proposal that the union makes is reasonable you related to the changes that they've propose one area that has not been addressed by either party is the inherent unfairness that would amount if the to the department's interpretation of the statute were to and specifically the statute speaks to either the general counsel or the respondent being able to file a petition for judicial review in this particular proceeding with respect to the negotiable of the appeals not related to the c p a the department or the union brought twenty five appeal or twenty a little bit better in that they speak to the whichever party and agree and again that is traditionally going to be the union because if the employer is making a change and refuses to negotiate with the and union then there's a potential for a negotiable any position but if the employer doesn't make a change there would be nothing to negotiate over no basis for the union to file or for the employer to file which magician if the union refuses to negotiate the employer simply implement what it w it seeks so there would be no practical even if the statutory scheme allow for it there will be no practical basis to permit or for an employer to file a negotiated lety appeal it can i ask a question on the merits like to turn to the thank you can you try to help me understand put aside the technical correction issue most of the time you have spent discussing this had to do with seventy one twenty one f and seventy one twenty two the whole even with negotiating over a possible grievance procedure for to reverse a termination decision would produce conflict with something in those statues since i don't entirely understand the argument that was made affirmatively on that i guess i'm asking you to help me understand why you think that's wong well we believe that it's wrong for a number of different reasons the department has indicated that one of the reasons that and the statute is non negotiable and inconsistent with because of the special role on terminator i want to put that aside setting that aside with respect to the seventy one twenty one question which seems to be radical where the difficulty lies we believe that there is a nother personnel system that and this falls squarely within the dictates of seventy one twenty one which speaks to another personnel system being set up and that's exactly what has occurred here there is another separate personnel to this is not a situation like the cases but the department has relied on where the employees are executive branch  are exempted exempt and from title these are these are the legislative branch employees who to whom some of title five laws are laws apply so we believe that the provisions of seventy one twenty one expressly expressly contemplate what has happened here the creation of a personnel system for these legislative branch employees who can then enjoy the benefits of that and that the statute in using the language if any when it talks about the choice between going to a merit system protection act or a protection board type procedure or going through the negotiated grievance procedure you know we believe that the statute specifically contemplates what in the statutory scheme that's been set at the congress for the these employees the department is unable to file exceptions with the office of compliance board of directors and there is no judicial review of those unfair labor practice the arbitrator can reinstate officer that the police board has terminated and the court can put their  yes except sad because the congress and not an academic p p type proceeding in this particular procedure the employees only have the ability to go through the negotiated procedure so that cease of the judicial review the n s p process would not be available to these employees because it then a speedy process has not been enacted but the answer to your question is yes that's object so that the process is limited to the process prodded in the statute which is the situation by the chief of police and then reviewed why this board or the department the chief of police to terminate an employee and it only says the statute provides that if the chief wants him to terminate company they have to take it to the board the board has to approve it or take no action and then after that is the review in this particular circumstance and you know again the department acts as though the arbitrator is always going to rule in the favor of the employee an arbitrator is a neutral  important justice department procedure and that's the end of it and they have because they have been under the statute very specifically except from the that particular right that is the case is the instances where the courts have found that there is no right to negotiate a grievance procedure that contains an arbitration provision for terminations are instances where the statute says up front that this is these decisions may be made without likeability of otherwise that these decisions may be made without considering other laws where as the statute in this case specifically requires the chief to act in conformance with other laws and regulations so the statute statutory scheme is entirely is different for th employees and in your view than who who has the final decision the cheese or the arbitrator's we believe that they chief is the individual who makes the decision but under the negotiate procedure if the matter is taken into arbitration the unions prove unions proposals are that that decision would be final in vining again subjected to any other unfairly were practices or anything else that may come u final decision i'm not certain that the department is arguing that the chief is the final decision maker i think the department is arguing that the board is the final decision maker and that there is no review avilla the board's decision that decision but the decision is that decision of the board the board is not subject to the congressional accountability act and it would be ridiculous to have them check something that they have no jurisdiction to do rather the check of the chief decision is the capitol police board the security arm of the legislative branch employees that's made up of the house sergeant at arms the senate sergeant at arms and the architect of the capitol that is the body best suited to make sure that the chief decision is consistent with law second i didn't hear either made in mr track or mr ohman talk about the seventh circuit d c circuit or ninth circuit decision which clearly says that seventy one twenty one is a limitation on the grievance process excluding terminations from that action what i hear them saying not relying on any case law is that it's an expansive version that's just not the congressional countability act that idea of the act was to provide some rights to employees in the legislative branch and also to to play some other geishas on that on the i'm playing officers but it did so in a way  limit executive and judicial interference with what is primarily congress's decision regarding their own agencies and offices and so they very narrowly defined what you dish a review is going to be standard of review or just the circumstances in a certain city center switching there is three of them but we have a situation here where you say there is judicial review of the enforcement decision under your review the statute specifically provides for review of the enforcement decision so why don't we apply the e p a standard i mean it well i think what we're seeking is the court and for some border i mean there isn't really of i relates back to that the theory where congress has not granted review the review tends to be more limited so directly they did provide well i think it the question when you're talking about enforcement of it more order the first to come to court and enforce the order and in that scenario i think your position is there some analogy that are there some other situations and case law that says in a situation like that the review when the agency comes to enforce is with a very light hand whatever that that might mean and lead them isn't that because there actually is no authorized review lead him aside will you give me an example of that scenario the other scenario is actually a review of arbitration is it so an arbitration decisions are not directly reviewed all of all by the court but they are reviewable in an unfair labor practice gets because the only way a party can enforce an arb decision under the federal issues statute is by filing an unfair labor practice and so those cases go through the process and eventually come to the court in fact this court  police and an unfair labor practice was filed that saying that it was unfair for them stiff to fail to not implement an order that went to the board and now it's to the court so that if there is no review reviewable you know that force an action but that the court doesn't go back to deciding whether or not you know the exceptions were properly this sided with the but the but the only real is whether the party can establish that the arbitration to the other issue here which is i mislead the hearing with her issue i don't know whether we fully fleshed it out or not but i think that again i think in the end it has to be applied in a sensible if there are no factual issues and the board has the discretion to expedite this proceeding by simply deciding what's your view if there are practical issues it is your view that under by the incorporation paragraph tension ambiguity that means that there is no clear and unambiguous mandate and therefore a reasonable thing to do is to follow th earlier under certain circumstances there is the ability for judicial review as indicated in seventy one twenty one in simply the judicial review that is subjected to this very delicate or light standard that we talked standard upon what's the dispute i believe that the department's position in again and is that the river the process because they have filed a petition for judicial review of the unfair labor practice make sure i understand in those cases you arbitrator reversed the sermon ation and then somebody filed something with the compliance board saying there's an unfair labor practice and the compliance board says the no there isn't yes  those cases that are currently pending before the court the office of compliance board of directors concluded that there was an unfair labor practice and that the department had failed to comply with an arbitrator's a word that was reviewed by the office of compliance and your honour's the judicial review senator i think it's pretty clear if you look at section fourteen zero zero seven of the congressional accountability act the title is judicial review or decisions and in portions under that standard of review a legal question or sexual question that is the court's not supposed to decide those it's nobody's presenting those issues right now to that it sort of wipe out this reference subsection a one so that it includes  authority by issue a decision in the first instance of the hearing officer on that yes congress said how wanted to handle it it was explicit in how it wanted to handle it and that really does trump any discretion if that's not what the office compliance wants them to do they can petition the congress to change that but that language is in there for a reason and we have to give meaning to congressional language we can't just ignore it not do the following other things that really doesn't have to do with the conditions of the law you work here from flint can't complain no because it has no nothing to do with your condition of employment right and we don't and it doesn't govern your how you do your job what you do we're just precluding you from doing something that conflicts with your duties as a capitol police officer so can you imagine a cap we saw officer that is in a bar serving drinks and you know some recognize him as a police officer we don't want to be in that position where because he's a capitol police officer then maybe that they may be an argument for why this would really be that in a negotiation you can say absolutely not we favoritism with respect to some company that's under contract with the police or although seem like you know quite reasonable positions to advance but why does that mean they're nonnegotiable i don't think they fit the definition of condition of employment i don't know that that has been developed other than be as good as as anybody said anything about it at all i have not looked at that your honor i'm because our position here is we didn't change our outside do it but if it's a different point yeah purposes though in terms of the promotions d e f g and h there was no change in the condition of employment so we start with the statute under seventy one seventeen that's what gives us the authority for the  is a change to a directive from a standard operating procedure and what's the import of that a directive in a standard operating procedure post apply equally to employees so what they have to do what they should be doing under the statu interpretation that prior to implementing a change of conditions of employment point and agency is required to provide the exclusive representative with notice of the change in an opportunity department over those aspects of the change that are within the duty to bargain if the change has more than a dem in a most effect but an agency is not required to bargain over proposals that go beyond the scope of the proposed change or over the matter or that is a condition on an agency bargain proposals that are outside the scope of the bargain so the task really starts from the very beginning what is the duty to part has there been a change of condition of employment with respect to these various p  understand it e g n h you have a position these really are quite the same there is something of a dispute about f about whether that's really a change or and this honor if you look at the twenty eleven directive by the department employees had always had the obligation to clock in and out that that was not changed in the new direct right but now they have to use computer or other mobile device went away from the duty station sure you have a new right right but again keep in mind we have capitol police officers that work on the hill it really is rare that they're going to be away from their duty station but if they do we've given them a tool to use which is the virtual change so let's take a look at the post proposal pete says that the parliament will provide sufficient time on a daily basis for employees to complete their time in attendance responsibilities on a daily basis there's no change there they had that responsibility under the old process they have that same responsibility under the new process so there's not been a change to that aspect of the proposed if you look at proposal our employees may request extensions of any timelines under this directive well the only time i can see under the directive is that people had to certify their time on by monday instead of the old time by wednesday so i don't see that that's a change wor that is a change it's a de minimus changed with respect to proposal s if for any reason an employee is physically or otherwise unable to use the computer programs required under this directive it's the same computer program the work brain program has not changed his or her time to tense the employees encouraged to contact his or her first line supervisor to discuss re simple accommodations so the capitol police has had employees clocking in and clocking now since as long as i've been there which is in two thousand and two that has always been a process we adopted the working process sometime in two thousand and nine where employees clocked in and out and we refined that process in two thousand and eleven by having a more proper system to do that and a process to do that the only thing that changed when we came to the new directive is that we permitted employees to virtually clock when they're somewhere else that's the only thing that changed for us that's why we think that's a de minimus change because it's not changing the terms and conditions of employment employees have always have to certify their time employees had always had to clock in and out and employees had always had to supervisors when they were unable to do so so based on the language of the proposals the those time in attendance proposals are outside the scope of the change now certainly if one of the changes was about the an employee didn't have a proper token and what they do with that token when they can't get onto the virtual clock that might be in a and negotiable proposed but none of these proposals go to the virtual clock they go to the brain situation the only thing that had changed under the new policy is that they attest their time via electronic that hadn't been done before and that had been done via this is the first time that we allow the employees to certify their time via that clock but none of these proposals go to that certification process they all go to the clock in the clock at a daily basis and so there's no change in the terms and conditions of employment terminations says so so that's the time to do it the department how the continuing need to update its policies and that's why you'll see some of this but what you don't see is anything changing a collective bargaining agreement and i'm  here because management has a continuing obligation to run its mission of the department and right now i think that that collective bargaining agreement negotiation has been ongoing for three or four years on these issues so for example we had the work bring clock and let people certify their time if we had that wrapped up in negotiations we would have a program or a system that the department can't use until we finish negotiations over it and so that's why we do the operation here with there's a change or there may be a change in a condition of employment we notify the union and give them an opportunity to issue some proposals on that and a lot of the proposals get adopted we just did it recently with our performance evaluation system in our award system we sat with the union worked out all the issues that they had with the proposal and adopted them and are moving forward with  so we do that because it helps us manage department move forward with our mission to wait for negotiations each time it is a bit of a challenge now certainly if if we were close to a collective bargaining agreement being ready to go we would  incorporated these provisions into that process but the chief had a mission to make sure that we got the four directives out and that's why the collective bargaining agreement allows us to issue interim guidance if there are pending issues and so our tim attendance as an interim guidance because of the issues pending before the score absence and leave is an interim guidance outside employment is interim guidance and emergency suspension is an interim guidance that's consistent with the collective bargain agreement while we wrestle with these n a false premise that the union gave them that it was the first time that capitol police employees had ever been subject to the capitol police board regulations but that's just not factually accurate the capitol police or regulations hundred ninety eight and and their regulations to allow the chief to set absence and leave for capitol police employees employees aren't subject to the board regulation they're subject to the department's policy and so the proposal asking linking the department's policy to the board's regulations which are outside of the capitol police is statutory authority is not there's not it's there's not the proper sculpin the change a condition of employment those regulations haven't been changed and this is a perfect example of had we had a hearing so what what it what did you propose with respect to those regulations essentially we the unions proposal was that they be posted  before there was litigation in front of the board what did you indicate you wanted to do with respect to what is now the subject of proposal i we did not want to negotiate on because in seventy nine something along the following lines you were always subject to the regulations but you know you didn't know it quite as well as you now do since we put it in that directive now you know it a little bit better and when you violate that and you're going to have more easily attributable knowledge with a greater possibility of of more severe punishment because now you kind of really know it why is that why did that little story i just told why is that not what happened here which is more than a minimus change with respect to employees and therefore they come back and say well if you're going to make it a little bit more now what attributable to us we want to be something we can check in three seconds on the internet well they so under that scenario the they have not received the regulations they don't know what they say but the the grievance can never be about the regulations the grievance or if they have a challenge to it is about the department more than a de minimus change in the conditions of the employees working conditions i would start with it's the office of compliance is obligation when they're doing these statutes to determine that though i don't find and less obscure and therefore if somebody goes about violating it in in there is now a new weapon to say and you knew about it but there's nothing in the regulations to violate the regulations don't apply to think it was a good idea to put this reference into the directive i think our office of human resources is just being overly thorough including everything and that's why it got included in i think i'm on this last point is there are obligation on employees to follow the regulations or the regulations directed that you look at the way the directive reads is that it's in accordance with the regulations so it sounds like  and what do the regulations apply to the employees to the employees have to comply with that i'll be honest i don't know i don't have access to the regulations i don't know what they say i mean the regulations are not published regularly and that's part of i think it's also important to bear in mind what and what the order is or the board order is that they should go back and discuss these proposals as part of the collective bargaining process if there is no order that any of these proposals have to be implemented a you know i think why that why it's important is because you know the board's order under the regulations go back to what i think is actually the legal issue and this is why is this directive  even begin to tell me why that's it more than a demand of us change so at that point you lose so what's what is it that's more well because i guess the common sense idea is the standard operating procedure or interim guidance the supervisors and the employees have much more flexibility in terms of whether or not they comply with it or not and in this is what the standard procedure is but every no i think that was the argument that the union made that they said that if you make this a directive we understand this means we have to comply with it if it's an interim guidance or if it's a standard operating procedure what is the standard operating procedure say in but again you know the context of this is that there is an article in the current collective bargaining agreement that that the if the if the department is going to cheat their policies and they have to provide a draft to the union the union is allowed to negotiate and that's what happened here i mean this is where this all came about i mean they said we're going to make these now directive this is how it's going to read there's a draft of it and they then came up with proposals what you call the proposals proposal should reach i mean this is the whole purpose of collective bargain and so that when we get to the question of you know is it a condition of the plan well of course these are condition these are the things that condition of employment so right but that doesn't answer the question whether anything has changed and whether any changes more than where and again i think what the what the board focused on what when they again i'm not on the twelve that they therefore the question of how long it's going to take you to do it on a computer as opposed to an on paper is a fair subject this is a sense in which they say that the burden is on the department to establish and again i think the argument that the capitol police made that this would you know fear with their management right discipline and what the board found is that it doesn't because own with respect to the question of whether these proposals or whether these directive address changes thank you for example in the outside employment director the propose that is the basis for the union's proposal the union agrees that the language of those limitations does not change however the importance of the language of those limitations and the need for the employee use to know what the limitations on their ability to have outside employment are has changed because they are now subject to discipline they are now subject to certain requirements about their ability to engage in for example voluntary activities during their previously said now this is something that's going to be applied to you you really not need to know what it means and so they and you union's proposal again is simply for an example of what that means so then an employee who now for the board noted as being important particular i don't know i think what the but the what the board did say to address the issue is that when the board is looking at whether a proposal is negotiable unlike what the department is urging which is that you look to the specific language of the specific sentence that the union she proposes to change or proposes to add something to or proposes to add something to the end you actually have to look holistically at the draft active and say how does this draft directive or draft s o p or whatever the draft me be impact the employee's relationship with its employee are its working condition so while the board purpose directly under the subject matter on the to the employee is that the draft directive simply says ensure that the employment or service is not a prohibited activity for example and then you give it to the employer to make a decision under the proposal again to change to the working condition that requires or that mandated resulted in a making these proposals is that now the employees must ensure that their outside employment or volunteer activity do not conflict with the conscientious the procedure the under the s o p the burden was not on the in fully as there was no negative consequence to the employees for the failure to well there was nothing included in the s o pay as that applies to the employees where the employees are now subject to these mandatory requirements that are policy so the union would argue that again absent malfeasance that would have a nexus to their workplace the answer would be if they were working in a nonprofit activity that had been approved by the employer that they would not be subject to discipline certainly know with respect to the time in attendance issue i understand that there's been some discussion about whether the computer vs the paper and is a big change or diminish change well that may not be a major change for an office worker these employees that the union represent they're not office workers for the most part many of them are working posts out on the capitol and they're out on the streets they many of them do not have access to a computer if did all of what you as changes with respect to this time in attendance if all of them require employees to do something that they were not previously choir to do i sort of use one of them is giving you an additional option which is in a change of a sort but that at least raises a question whether a change that is favorable is automatically negotiable the department  view the option to use a virtual time clock i think that's what you're talking about as favorable but again for the employees they want to know what are the circumstances under which they're likely to use a virtual time clock what happens that they can't use the virtual time  that kind you have a group of employees who again do not use computers necessarily in their day to day operations and they may not even have access to computers again except at certain times during the day while they're on breaks and so the proposals that the union has made are designed to address the need to now do certain things that had been previously printed out and hand it to them on a computer previously the verdun again while employees had to certify their time as the department in minutes if the prior proposal the prior policy required that the supervisor printed everything out and gave it to the employee require that this is now the directive reverse there's a part in the employee has to find a computer logon and certify their time that may not seem like a de minimus and proposal and or a de minimus non diminish change and perhaps for an employee that sits at a desk all day it's not but for an employee who then has to search out a computer find the about what you can do in your off duty said employment stuff just doesn't have to do with conditions of employment a did they make that argument to the complaints board the can you tell us anything about him i don't know sounds like an argument that ought to have been made and either adopted or rejected i don't recall that argument and frankly i think perhaps the reason is because of how it reaches that it is what the department is saying through this through its argument and through its proposal is that it's not a condition of employment what you do outside your job duties but if you do it wrong you might be subject to terminations that is sort of inconsistent in my mind with common sense but it's also inconsistent with the f l area law which we did in our  brief that the this is clearly a condition of employment criteria for when employees can work outside of their job with the government is a fairly straightforward working condition under