More modulation. May I please the court. My name is Kelly Birchell and I'm here representing Officer Brian Morris. Officer Morris respectfully requests that this court overturned the office compliance decision and remained with specific instructions to conduct a denoval review of all legal exceptions that were submitted. Jurisdiction is the only issue we're going to do today. 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. Now I submit that first the jurisdictional statute that is in dispute today is a limitation of legal substance and not of class 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 if we all look at the judicial review section, are you getting to the point that it's just because it's limited to the general counsel and responded to the complaint that doesn't take it out of the realm. Is that what you're 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. No, no, I mean it's my unfair labor practices you mean to our only arbitration to arbitrations that include unfair labor practice
. Yes, that is one of the two tracks. Yes. And looking at the statute, the statutory provision on judicial review, you get there because the opening part that says except for matters which deal with five USC 71 23 A 102, those matters extend judicial review of unfair labor practices or arbitrations that involve unfair labor practices. Okay, 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 respond to the complaint. Well, actually under five USC 71 16 it outlines how unfair labor practices may be pursued. Now there's two ways to pursue an unfair labor practice. The first way is through office of 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. Then it's the office compliance's job to prosecute this unfair labor practice. And that's the general counsel. That's the general counsel. Right there's an arbitration but moving on to an arbitration which is what's an issue here. The general counsel doesn't have any role in arbitrations and there's nothing called a complaint in context of an arbitration procedure
. My wrong about that. Now, agreements technically is a complaint as sites any kind of contractual violation. Now, I'm typically in the parlance and I think this is in the statute repeatedly unfairly. You talk about unfair labor practice complaints and you talk about grievances through the arbitration procedure. I mean those pretty well-known books except the terms of art are they not? In this case when we're dealing with federal employees an unfair labor practice may be pursued by the union in the form of agreements. Every labor agreement has a rules laws and regulations provision where in the union. The union then is the petitioner. Yes. Well, that's not the general counsel. I mean if it had said so you're right. I mean maybe our reading would be different if it said the petitioner or the respond to the complaint. Then I could appreciate that you would be telling us complaint should matter and the unions the petitioner. But how do you get around the limitation of to the general counsel? I was never wrong
. I'm under the statutory scheme. The general counsel's never a party in the context of a grievance arbitration. That is correct. However, the opening part of the jurisdictional statute specifically references five USC 71 23 A both one and two. Now, under current judicial precedent that extends the right of judicial review of unfair labor practice arbitrations that involve unfair labor practices. That's but that let's be really precise about exactly what's going on here because it seems to me when you say that extends all a 71 23 extends. But nothing all the statute refers to and I'm talking about to see three here. That's that opening language says except for matters referred to in paragraphs one and two of 71 23. It's not saying as I read it at least it's not saying except to the extent that 71 23 allows judicial review. It's just referring to those matters and those matters include as let's 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 202 C3. See the way the statute is set up. It actually understands your question
. I'm trying to write this out the best way I can. First thing is if you look at the statute itself you take away the initial clause where it says except for 70 except for five USC's 71 23 a 1 and 2 and only read that initial part where it refers to the general counsel and the respondent that's the initial authorization of jurisdiction. However the opening clause creates an exception where it extends judicial review of those arbitration matters in that arise out of five USC 71 23 a to a person so otherwise not even listed in the provision at all. In that in the specific yes but however the problem is is that the Congressional Accountability Act is an act that set up to extend rights from that initially did not exist for legislative branch employees. Now if you are 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 played her to if they hadn't struck the broader grief person language in the course of the preparation of the legislation but that was expressly stricken 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 to be read in Perry material with Congressional Accountability 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 USC 71 16. Now in five USC 71 16 D 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 did intend to make it so that there was no judicial review what so ever of arbitrations including those with unfair labor practices it would have struck that provision within the statute. However that provision has been extended
. See what has happened is that you've got a situation where the office compliance claims okay this only involves unfair labor practices that we prosecuted. However Congress has clearly stated and other courts have found that Congress intends for there to be uniformity when it comes to unfair labor practice. I don't have any doubt that there were I don't have any doubt that there were er you know sort of arrows pointing in the 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 fairly going the other way so how how how we get around that. Well examining the interpretation that that's being posed to me is that almost as if the reference to five USC 71 23 A doesn't exist. Now the central question then 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 statute is reference. Looking at that part in addition to the Congressional intent to maintain uniformity of unfair labor practice decisions the only possible way that you interpret the plain language by that reference is that Congress intended for unfair labor practices which are pursued through grievance arbitrations are subject to judicial review. My problem is the only way you can interpret it the way you want is to rewrite when to acknowledge the reference to General Counsel or respond to the complaint. You absolutely have to rewrite those words to include someone else. We would have to put in the aggrieved party language which was taken out. Respectfully I disagree with that interpretation. See there there are indications that their agree of language was in the agree party language was in there the parties person agreed to and that was specifically taken out. Yes that's the two of them
. Now that language that if that language would remain it would have actually opened the door and brought in jurisdiction to not just include unfair labor practices but a whole number of other other complaints. Could it be that the Congress wanted the labor arbitrations they were conducted for the OOC 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? It's clear they didn't want arbitrations. No no not arbitrations. Let arbitrations proceed. Arbitrations are very normal in many of the labor proceedings but some of them are made finals without appeals at the end of the arbitration. I agree that arbitrations should end with office compliance with the sole exception of 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 direct reference to the general council and the respondent is a specific reference to the office compliance and their procedures and the way that they handle unfair labor practice prosecutions. However they needed to extend the grievance arbitrations to maintain that uniformity. That's the reason why Congress specifically referenced the five USC 71 23 A 1 and 2. You mentioned in passing to Judge Gaiarza that if they put in the language he was suggesting of any agreed person that would be clearly too expansive to go beyond whatever. How so? 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 more Congress intended. What's the language that's used in the general federal equivalent of this? The general federal equivalent there are certain differences yes
. But isn't I agree with you. Any agreed person the exact formula that I can't. I don't get in front of me so I can't remember. The way it's set up under the federal statute is that arbitrations are final once the FLRA mixes decision with the one exception being matters arbitration matters where there's central thrust is that of an unfair labor practice. What we are requesting is that this is consistent with the way matters are handled 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 board order itself in this case implicated or involved 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 to buy. No but let me let me rephrase it narrowly the little. The order here the order itself which I think is the reference that's made to the statute either order or reward one of those terms. The order itself didn't have had make any reference to the unfair labor practice issues. As I understand it it dealt exclusively with the time you know proper timing for filing of these grievance and knocked it out on that basis
. Am I right about that? Well the are you took are you talking about the office compliance decision just for the board's order. Okay the board's order and I will note for the record that my time is up and it's going to go ahead you can okay from the question. The issue is that while the board's order did not involve an unfair labor practice the problem is that by law the board is required to conduct a denovo review of all legal exceptions and the board didn't do that. So what we have here is basically the arbitrator or the arbitrator here went off exclusively on the question of arbitrability based on a timely filing of the grievance and that that was all he dealt with right and then it goes up to the board. So is the board they have jurisdiction or authority to get into the merits of the underlying grievance? They by law they are allowed to conduct in denovo review under two USC 1407 they are required to conduct a denovo review allowed or required required what's a denovo what does that mean? There are a denovo review of what? The legal exceptions. Okay. All legal exceptions. And yeah and isn't there a tie of the legal exceptions to the arbitrability award in this case would deal exclusively with the issues covered you can't file exceptions to something beyond what the arbitrator awarded. So we're we're back to the same place right of just dealing with the timeliness issue. Now an arbitration award that's not supported by law can be reviewed and that is one grounds for setting aside the arbitrations decision the arbitrators decision. Okay. And in this matter there were unfair labor practices that arose during the arbitration from the demand for arbitrators. You filed exceptions to the arbitrators award
. That's what you're talking about. Did those exceptions to the arbitrators award deal with anything other than the merits of the award on the question of the timeliness? There were both the merits of the award and unfair labor practices that arose. They were I'm sorry. They both 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. So you think the board would have had authority to litigate or just dispose of the legal questions involving the unfair labor practices and the context of an appeal of the Syritration Award that dealt exclusively with arbitrability. Yeah under two USC 1407 yes. Then what's the effect of the finding that the arbitration request was on time? The effect is one one of the unfair labor practices was actually part of the grievance process which let me ask the question more precisely just to focus your answer. Is there ever a situation in which when the when the arbitration request is on time suddenly that that's the end of the matter or is 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 practice is there was a clear change in how the matter and how the department utilized the grievance timelines which led to the finding of not being arbitrable and with the unilateral use of timelines. See in the underlying case what had happened was that the contract was ratified on January 9th 2003. In February of 2003 there was a change of law dealing with how removals are handled in the case in disciplinary matters. Now under Article 41 of the contract there was a mandatory obligation for the parties to meet and renegotiate any changes of law that impact the contract
. This renegotiation never occurred. So we fast forward into 2007 and then we have an issue where the chief clearly issues a final determination that he is going to remove officer Morris. Two weeks later the union submits a demand for arbitration. However the department takes the position that this matter is not arbitrable because it's not right. The contract clearly states that once the chief of police has made a final decision then that final decision the timelines begin for arbitration for the demand for arbitration. However the capital police actually took two different positions by two different representatives. One representative stated that the matter could not be finalized until officer Morris had received his removal. I think I'm understanding the scenario of what your grievance is. I guess I don't understand why that would not be an allegation with regard to a breach of contract and a grievance is opposed to what makes that a ULP? The FLRA has ruled numerous times that a unilateral change in the grievance process because the grievance process is actually statutorily mandated under 5 USC 7121 it mandates that the grievance process be fair and simple. As a result the FLRA has examined this law which found that any unilateral change in the grievance process constitutes an unfair labor practice. Since this unfair labor practice. Did you make these arguments about how you made these to the arbitrator in the context of the arbitrability issue? At that point I was not on the council of record but I do believe yes those arguments were made and that was the central thrust. As a matter of fact if you review the record. I can't remember the award note. Did he make a finding with respect to no unilateral change? I do not believe that was made. Okay. Why don't we hear from your opposing council will restore at least a couple of minutes of time. Thank you. Mr. Walker? I mean please the court of William Walker with the office of compliance. Now as to the last point the unilateral change argument was not presented to the arbitrator at any time. It was not considered by the arbitrator. It's not part of the case. I don't believe it was raised in exceptions before the agency for the board but the point is that in the arbitration what you've got here is the board order is entirely silent. It's not deal with ULPs. ULPs were not involved in the board decision
. I can't remember the award note. Did he make a finding with respect to no unilateral change? I do not believe that was made. Okay. Why don't we hear from your opposing council will restore at least a couple of minutes of time. Thank you. Mr. Walker? I mean please the court of William Walker with the office of compliance. Now as to the last point the unilateral change argument was not presented to the arbitrator at any time. It was not considered by the arbitrator. It's not part of the case. I don't believe it was raised in exceptions before the agency for the board but the point is that in the arbitration what you've got here is the board order is entirely silent. It's not deal with ULPs. ULPs were not involved in the board decision. They weren't mentioned in the board decision. They were not part of board decision by implication or expressly. And they weren't part of the board's decision because the arbitrator did not address unilateral practices at all. They did not mention unilateral practices. Well it seems so if they had raised in exceptions the board likely would have at least referenced that. Don't think? Your Honor I think that the case was 99% about whether the arbitrator correctly interpreted the contract. I don't think there's any basis for arguing that the board did not consider the exceptions. The board said to consider the exceptions. In light of applicable laws and regulations it characterized the exceptions as mainly dealing with the arbitrators allegedly improper interpretation of the contract and is is failure to make proper findings effect. I submit that that's all that the arbitrator was the the boarders are part to do in this case. Sure let me let me do it in a different direction and I guess you may not know the answers to this question but it's important I think. This act covers approximately how many people you know I mean how many employees. The government accountability
. They weren't mentioned in the board decision. They were not part of board decision by implication or expressly. And they weren't part of the board's decision because the arbitrator did not address unilateral practices at all. They did not mention unilateral practices. Well it seems so if they had raised in exceptions the board likely would have at least referenced that. Don't think? Your Honor I think that the case was 99% about whether the arbitrator correctly interpreted the contract. I don't think there's any basis for arguing that the board did not consider the exceptions. The board said to consider the exceptions. In light of applicable laws and regulations it characterized the exceptions as mainly dealing with the arbitrators allegedly improper interpretation of the contract and is is failure to make proper findings effect. I submit that that's all that the arbitrator was the the boarders are part to do in this case. Sure let me let me do it in a different direction and I guess you may not know the answers to this question but it's important I think. This act covers approximately how many people you know I mean how many employees. The government accountability. In the latest layer of the government how many employees are there in the last couple of branches? In the latest layer of branch I don't know but it's about your thousands. A couple thousand. More than a couple of thousand. Yeah but what about I mean this is I haven't seen a case come up here that implicates a union grievance yeah I'm just wondering I mean the paternal order police so if the capital police are there other unions that are players here other large you know bargaining units covered under this? There is another large bargaining unit the the architect of the capital is is I believe another even larger the bargaining unit yes most of them are conservative smaller. Okay so I guess that leads me to that question that's relevant to this case which is has this provision ever been subject to review I assume they know cases by us so they would have been cited but has the board had occasion to consider this question before in terms of this provision? I'm sorry which particular provision? Well so do they have a lot of cases or at least some number of cases that involve review of arbitrations that implicate you LPs? No I believe this is the first case that's reached the court of appeal. The board has had a small number I believe a small number of cases where it has. So they have in some instances? In some instances not none of them to my analogy have involved an allegation that they involved on Dr. Labour practices where I made it subject to limited review. Now to go back to your question about whether or not the board should have said something about these ULP allegations that were made on exceptions. The Supreme Court has recognized a principle that there's a presumption of regularity that attaches to the actions of government agencies. This board's proceedings were in every respect consistent with that principle. Well yeah but I thought your answer was you were sure whether they were raised in the exceptions or not? Oh no no the the ULP's were raised in the exception but they were not properly part of the arbitration proceeding and it would be an invitation to mood strapping. See if a party agreed or the employee and say loses the forward arbitrator just says oh my goodness we're not going to be able to get you just a review of this unless we introduce Ontario Labour practices into the case
. In the latest layer of the government how many employees are there in the last couple of branches? In the latest layer of branch I don't know but it's about your thousands. A couple thousand. More than a couple of thousand. Yeah but what about I mean this is I haven't seen a case come up here that implicates a union grievance yeah I'm just wondering I mean the paternal order police so if the capital police are there other unions that are players here other large you know bargaining units covered under this? There is another large bargaining unit the the architect of the capital is is I believe another even larger the bargaining unit yes most of them are conservative smaller. Okay so I guess that leads me to that question that's relevant to this case which is has this provision ever been subject to review I assume they know cases by us so they would have been cited but has the board had occasion to consider this question before in terms of this provision? I'm sorry which particular provision? Well so do they have a lot of cases or at least some number of cases that involve review of arbitrations that implicate you LPs? No I believe this is the first case that's reached the court of appeal. The board has had a small number I believe a small number of cases where it has. So they have in some instances? In some instances not none of them to my analogy have involved an allegation that they involved on Dr. Labour practices where I made it subject to limited review. Now to go back to your question about whether or not the board should have said something about these ULP allegations that were made on exceptions. The Supreme Court has recognized a principle that there's a presumption of regularity that attaches to the actions of government agencies. This board's proceedings were in every respect consistent with that principle. Well yeah but I thought your answer was you were sure whether they were raised in the exceptions or not? Oh no no the the ULP's were raised in the exception but they were not properly part of the arbitration proceeding and it would be an invitation to mood strapping. See if a party agreed or the employee and say loses the forward arbitrator just says oh my goodness we're not going to be able to get you just a review of this unless we introduce Ontario Labour practices into the case. If I typically wouldn't we expect that the board would at least address that even if there is the result is what you suggest? I suppose the board could have could have addressed it in your honor but all they would have addressed in this case is they what would have been said was the ULP allegations are denied in the exception because the case before the arbitrator did not properly involve ULP's that wouldn't get the judiciary into a judicial review situation because all would do with mentioning why ULP's were not properly before the board. Can I move you to the statutory position? Because that is a people's position then that they would deny and not consider at that point they were not part of the total decision by the board. I'm sorry your honor if the board it specifically addressed these allegations. They said that they did not address them but they denied them. Well I submit that that's what what they actually did. I mean the board said it considered the exceptions among the exceptions not primarily the folks of the exceptions but among the exceptions were these ULP allegations were you some ULP allegations that were not addressed by the arbitrator and for a good and sufficient reasons were not addressed by the arbitrator. Now, but even if they had been you'd say that we wouldn't have jurisdiction. That's correct and that leads us to the statute. Right that's correct. And so why don't you tell us about how it just as an introduction that the statute is at least you're reading what strikes me is it leads to some peculiar conclusions. Would you agree with that? There's only one peculiar I'm not going to describe it. I was waiting in the singular. A peculiar it's a little peculiar to try to figure out of what the except for clause is doing in this statute
. If I typically wouldn't we expect that the board would at least address that even if there is the result is what you suggest? I suppose the board could have could have addressed it in your honor but all they would have addressed in this case is they what would have been said was the ULP allegations are denied in the exception because the case before the arbitrator did not properly involve ULP's that wouldn't get the judiciary into a judicial review situation because all would do with mentioning why ULP's were not properly before the board. Can I move you to the statutory position? Because that is a people's position then that they would deny and not consider at that point they were not part of the total decision by the board. I'm sorry your honor if the board it specifically addressed these allegations. They said that they did not address them but they denied them. Well I submit that that's what what they actually did. I mean the board said it considered the exceptions among the exceptions not primarily the folks of the exceptions but among the exceptions were these ULP allegations were you some ULP allegations that were not addressed by the arbitrator and for a good and sufficient reasons were not addressed by the arbitrator. Now, but even if they had been you'd say that we wouldn't have jurisdiction. That's correct and that leads us to the statute. Right that's correct. And so why don't you tell us about how it just as an introduction that the statute is at least you're reading what strikes me is it leads to some peculiar conclusions. Would you agree with that? There's only one peculiar I'm not going to describe it. I was waiting in the singular. A peculiar it's a little peculiar to try to figure out of what the except for clause is doing in this statute. That's not what I would have regarded as the peculiarity. The peculiarity is somewhat about an anomaly in one respect and that is if the concern is about uniformity in ULP law. This the way our statute is written is conceivable that the board could make some statements in an arbitration appeal about ULP's. It would ultimately not be reviewable. This is what we're talking about a very small category a very small area that would probably never rise. It's almost never risen in the FLRA law which has been in effect for 32 years. There are almost no cases dealing court cases in which the accord has said that the FLRA's decision involves entrepreneurial practices. This is so we've almost never had this now. To address the 71-23 issue. We don't see any peculiarity there because the language in 71-23 is contained in 71-23-A. 71-23-A says that any person agrees any person agreed language is in A. In 220-C3 that's not what we're the CAA focuses on. It says except two matters
. That's not what I would have regarded as the peculiarity. The peculiarity is somewhat about an anomaly in one respect and that is if the concern is about uniformity in ULP law. This the way our statute is written is conceivable that the board could make some statements in an arbitration appeal about ULP's. It would ultimately not be reviewable. This is what we're talking about a very small category a very small area that would probably never rise. It's almost never risen in the FLRA law which has been in effect for 32 years. There are almost no cases dealing court cases in which the accord has said that the FLRA's decision involves entrepreneurial practices. This is so we've almost never had this now. To address the 71-23 issue. We don't see any peculiarity there because the language in 71-23 is contained in 71-23-A. 71-23-A says that any person agrees any person agreed language is in A. In 220-C3 that's not what we're the CAA focuses on. It says except two matters. I mean subject matters. That are mentioned in A, it's one in two of 72-3-A. So the A language that clause that contains the words any party agreed Congress went enacting the CAA is not focusing on those languages that language at all. I submit. Can I ask the question another way? If this provision had been written to strike the first line and begin the whole and then taught the provision its entirety would have started where we start the general counsel or the respondent. Would it and your interpretation of it have any meaning other than what you're describing to it today? In other words does that phrase given your interpretation of this provision seems to me that first phrase is completely irrelevant and meaningless. Yes it is. It's not meaningless. The eight of the one and two are not meaningless because it takes out the subject matters unless I'm misunderstanding the question. Yeah okay. Let me phrase another way. As I understand it it is meaningless given the reading you're advocating and the reason I think that is because what the first provision leaves us to is matters arbitrations. We're taking out arbitration awards that don't have ULPs
. I mean subject matters. That are mentioned in A, it's one in two of 72-3-A. So the A language that clause that contains the words any party agreed Congress went enacting the CAA is not focusing on those languages that language at all. I submit. Can I ask the question another way? If this provision had been written to strike the first line and begin the whole and then taught the provision its entirety would have started where we start the general counsel or the respondent. Would it and your interpretation of it have any meaning other than what you're describing to it today? In other words does that phrase given your interpretation of this provision seems to me that first phrase is completely irrelevant and meaningless. Yes it is. It's not meaningless. The eight of the one and two are not meaningless because it takes out the subject matters unless I'm misunderstanding the question. Yeah okay. Let me phrase another way. As I understand it it is meaningless given the reading you're advocating and the reason I think that is because what the first provision leaves us to is matters arbitrations. We're taking out arbitration awards that don't have ULPs. In the import of that would be we're leaving in arbitrations that do have ULPs. That's the only relevance of that phrase. Yes. But according to your reading the next phrase of general counsel takes that class. Arbitrations involving ULPs out of any review. Because of the general counsel and the and the respondents are not part of arbitrations. If you have a footnote in your brief to the next. Yes but you know subsequent on for labor practice we're seeing where let's say the general counsel loses before the board in the unfair labor practice case. The general counsel may seek judicial review of that decision. That has nothing to do with the arbitration. But if there's an underlying if the unfair labor practice case has an underlying arbitration decision that involves an unfair labor practice that is open to judicial review. For example what would that be? That would be a separate matter. That would be a separate case
. In the import of that would be we're leaving in arbitrations that do have ULPs. That's the only relevance of that phrase. Yes. But according to your reading the next phrase of general counsel takes that class. Arbitrations involving ULPs out of any review. Because of the general counsel and the and the respondents are not part of arbitrations. If you have a footnote in your brief to the next. Yes but you know subsequent on for labor practice we're seeing where let's say the general counsel loses before the board in the unfair labor practice case. The general counsel may seek judicial review of that decision. That has nothing to do with the arbitration. But if there's an underlying if the unfair labor practice case has an underlying arbitration decision that involves an unfair labor practice that is open to judicial review. For example what would that be? That would be a separate matter. That would be a separate case. Not the arbitration and what to do. That's true. That's true. That's true. That's true. That would have to bring a separate unfair labor practice action. That is correct. That would be a pealable of us. Correct. Now the 7123A has nothing to do with arbitration with unfair labor practices. But it might if the average deals with arbitration awards that consist of unfair labor practice allegations and arbitration awards that don't. What you're talking about is an unfair labor practice case. Nobody disputes that those are covered here
. Not the arbitration and what to do. That's true. That's true. That's true. That's true. That would have to bring a separate unfair labor practice action. That is correct. That would be a pealable of us. Correct. Now the 7123A has nothing to do with arbitration with unfair labor practices. But it might if the average deals with arbitration awards that consist of unfair labor practice allegations and arbitration awards that don't. What you're talking about is an unfair labor practice case. Nobody disputes that those are covered here. No. That's not what 7123A means. It's addressing that. But you're on a feeling that you can apply with an arbitration award as an unfair labor practice. Okay. Now there's a there's a finding by the board of nine for a labor practice and what the the employing agency seeks review. And the unfair labor practice in the review proceeding the employing agency their argument is that the unfair labor practice order is unenforceable because the underlying arbitration of revision decision was improperly arrived at and it involved unfair labor practice. There was a misstatement of UOP law in the arbitration decision. The arbitration decision can be reviewable in a subsequent unfair labor practice proceeding that is reviewed as to be hast of the general counsel or the respondent to the complaint who has lost before the board. But if you file an unfair labor practice based on the assertion that you're refusing to implement an arbitration award that is clearly reviewable under this provision irrespective of whether the arbitration award we're now two levels below. You will pay about an arbitration irrespective of whether the arbitration award dealt with an unfair labor practice or didn't deal with an unfair labor practice. Would you disagree with that? I certainly wouldn't you're honored because even in the FLRA the decisions under the FLRA. If there's the under the FLRA under 71 23 A 1 the arbitration decision is not traditionally reviewable however if there's a subsequent unfair labor practice proceeding based on the arbitration decision and the arbitration decision involves unfair labor practices it is reviewable and it's not if it doesn't that's correct even in the unfair labor practice proceeding the arbitration proceeding has to involve an unfair labor practice or the party seeking review of the unfair labor practice fight order can't go behind the arbitration or decision unless it involves a ULP
. We cite a case there are cases so it's not true that arbitration decisions that involve unfair labor practices are never reviewable under the CA that is not true there is this scenario it may be relatively remote or in frequent scenario where an unfair labor practice decision turns on whether the board in the arbitration case properly decided the case and if if that decision didn't involve an unfair labor practice you can't go behind the arbitration decision but if it did involve an unfair labor practice it would be reviewable to the extent would be reviewable as an open question whether it would just be reviewable to correct any misstatement of ULP law well I can't answer that because I don't think it's everybody but who can bring that review the only the general the general counsel or the respondent to you so you got a very limited review process at that point that's correct even though you do have an unfair labor practice that's correct there's very limited review of the underlying arbitration decision now in most ULP cases there's not going to be an underlying arbitration decision but of those that are where there isn't underlying arbitration decision it is subject to that limited review and I just have one just one clarification to make sure I understand this if you if if an employer refuses to implement an arbitration award that's you go the ULP right to a route to enforce that rather than enforcing the arbitration award that's an that's been an unfair labor practice under FLRA law in that part of this incorporated into the CAA but the FLRA also has these separate procedures to review arbitration awards right but I believe there's a 122 I think well so it can appeal arbitration awards to the FLRA yes right and you can do the same and as those then traditionally appeal a little the FLRA's determination with respect to those arbitration awards because they're traditionally they are at the behest of a a party a party agrees great right a party any party agrees right so you get they get judicial review under the FLRA of arbitration awards that are ruled on by the FLRA yes if they involve an unfair labor practice no I'm talking about 71 you mean 71 22 is limited to arbitration that's agency procedure the board which what it doesn't have a problem with 71 22 back the board in this case said we review this in accordance with requirements of 71 22 as incorporated in the CAA and also 71 16 D that talks about you got to make an election well the board doesn't have any problem with that either the board would apply the same procedures those procedures before the agency the the entire argument that the board that that the CAA has to be construed in paramaterial with the FLRA we agree completely up to including the point where the board is its decision and at that point the chirous and you said the judicial review provision is just narrow that's what this case comes down to in your view is that you have to agree in person and they left the rest of it and that makes a big change as you see it in who can come to this court yes I mean in the statute that's basically all that's your entire jurisdictional argument right well yes I'm I'm I'm I'm I'm sure that's what I'm talking yes yes and Giver said just review is prohibited unless expressly authorized not only expressly authorized it's just you know it's just icing on the cake though as you see it because it's that's generally the case you don't get judicial review well I mean in the in the block in the block in the block in Fosco they have to infer that there was an intent to preclude your district review there wasn't any there wasn't language the strong language it's powerful legislation this would be a pretty good place to put the Fosco interpretation inference in I would think I mean this is exactly the kind of structure that I also was talking about yeah yeah yes yes and on top of that you've got language that says that wasn't expressly authorized for him okay very well we'll hear a little a couple of minutes for about all from Mr. Bertil if you have it just to clarify a few things at the end of the day one is there's a lot of focus on two USC 1351A and one thing that you need to recognize within that context was that the statute does extend the does extend FLRA decisions as persuasive president to ensure that there is uniformity of the of the FLRA and the labor management relations act Congress wanted uniformity and wanted 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 wanted to make sure make very clear and there was the hypothetical where union wins an arbitration and then the agency fails to go go forward with the award now yes that is an unfair labor practice however it is assumed that that unfair labor practice is only prosecuted by the office compliance however under five USC 7116D 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 be able to control more its own destiny and its litigation strategy plus going along with congress's intent to allow to promote arbitrations or two they are forced to ensure the judicial review to go the office compliance and file that unfair labor practice if congress had intended to have all unfair labor practices only be some only go through the judicial review if through office compliance prosecutions it would not have included five USC 71A 16D that is one major part of the entire statutory structure okay thank you Mr. Bertrand the case is submitte