[00:00:00] Speaker 06:
members today, Judge Hughes, who was unable to be here through no fault of his own, and he is remaining on the panel, has reviewed the briefs extensively.

[00:00:12] Speaker 06:
I think our questions today may very well reflect some of the questions he had.

[00:00:17] Speaker 06:
He will review the oral argument after it takes place, and he will remain on the panel.

[00:00:24] Speaker 06:
This is unusual, but not unprecedented.

[00:00:28] Speaker 06:
The first case for argument is 23.1983, U.S.

[00:00:33] Speaker 06:
Capitol Police versus OCWR.

[00:00:36] Speaker 06:
Mr. Enzina.

[00:00:38] Speaker 01:
Good morning, Your Honors.

[00:00:40] Speaker 01:
May it please the Court.

[00:00:41] Speaker 01:
I'm Paul Enzina.

[00:00:42] Speaker 01:
I represent the United States Capitol Police on this appeal of a decision by the Board of Directors of the Office of Congressional Workplace Rights.

[00:00:52] Speaker 01:
Board of Directors affirmed the grant of summary judgment.

[00:00:55] Speaker 06:
I'm sorry, and I won't take very much of your time, but I have some preliminary technical questions.

[00:01:01] Speaker 06:
The other side raised in its brief the notion that they have the right to

[00:01:05] Speaker 06:
to go ahead with the implementing the order.

[00:01:09] Speaker 06:
If you don't ask for a stay within 30 days, yada, yada.

[00:01:12] Speaker 06:
Are you familiar with what I'm talking about?

[00:01:14] Speaker 04:
I am familiar.

[00:01:14] Speaker 06:
And I didn't see any response to that in the grade brief.

[00:01:17] Speaker 06:
So I just want to know what the status is.

[00:01:19] Speaker 06:
Have they implemented the order in this case already?

[00:01:22] Speaker 06:
What's going on on the ground?

[00:01:24] Speaker 01:
I can talk with the co-counsel.

[00:01:25] Speaker 01:
Sure.

[00:01:38] Speaker 01:
No, Your Honor.

[00:01:38] Speaker 01:
The Capitol Police's position is that the order is not lawful, so they have not implemented it at this point.

[00:01:44] Speaker 06:
OK.

[00:01:44] Speaker 06:
Well, I'll ask the other side to confirm.

[00:01:46] Speaker 06:
But thank you for that.

[00:01:46] Speaker 06:
Why don't you proceed.

[00:01:48] Speaker 01:
The Court of Directors affirmed the grant of summary judgment on the general counsel's claim of an unfair labor practice on a single basis.

[00:01:55] Speaker 01:
It held that the Capitol Police committed an unfair labor practice by breaching its duty to bargain in good faith, specifically by failing to give adequate notice to the Union of Changes in Working Conditions.

[00:02:10] Speaker 01:
Now, that conclusion subsumes two factual issues.

[00:02:16] Speaker 01:
One is that the duty to bargain arose, and the second is that the Capitol Police failed to give proper notice.

[00:02:24] Speaker 01:
Now, this was on summary judgment.

[00:02:26] Speaker 01:
So obviously, the burden fell to the general counsel's office to come forward with facts showing each of those things, showing one, that the duty of the bargain arose, and second, that there was no notice, or not sufficient notice.

[00:02:40] Speaker 01:
And only then would the burden shift.

[00:02:43] Speaker 06:
OK, can you give us a little more specificity?

[00:02:45] Speaker 06:
Because we seem to be focused, and I don't know if that's right or wrong, on this list of 35 items in the Hoyer letter.

[00:02:52] Speaker 06:
What is your position?

[00:02:54] Speaker 06:
Are there things contained in the Hoya letter or other changes you are making now that you say you had no obligation to give notice and bargain over, or some of them, or any of them?

[00:03:05] Speaker 06:
I mean, I could see how you would say some of the stuff in the Hoya letter isn't stuff that we had to give notice or had to bargain.

[00:03:11] Speaker 06:
But is your position there is some stuff you should have given notice and had no obligation to give notice and bargain, and if so, did you?

[00:03:18] Speaker 01:
Well, Your Honor, that's precisely the problem here, is that these are factual questions.

[00:03:23] Speaker 01:
And there was no hearing.

[00:03:25] Speaker 01:
There was no chance to develop those facts.

[00:03:27] Speaker 01:
For example, first of all, if you look at the Hoyer letter, what the Hoyer letter says, it says, first of all, that these are the changes.

[00:03:35] Speaker 01:
And I want to get the language right.

[00:03:37] Speaker 01:
It says, these are the changes are part of a comprehensive and aggressive COVID-19 response plan that affects nearly every aspect of the department's operations, administrative functions, safety protocols, and facilities management.

[00:03:51] Speaker 01:
Now, for a duty to bargain to arise, a change must, first of all, obviously, affect the union.

[00:03:57] Speaker 01:
Now, the union, in this case, does not represent all capital points.

[00:04:01] Speaker 01:
No, no, no.

[00:04:01] Speaker 06:
I guess I'd just like to focus on some real things.

[00:04:05] Speaker 06:
Is there anything?

[00:04:06] Speaker 06:
I mean, you had discussions, at least in emails, it appears there were some discussion in the months of the end of May, March, and in April.

[00:04:13] Speaker 06:
You were discussing stuff with the union.

[00:04:14] Speaker 06:
and stuff on this Release This Ready program, stuff on the timing of disciplinary actions.

[00:04:21] Speaker 06:
So is it not your view that you had an obligation to bargain over some things that were going on here?

[00:04:27] Speaker 01:
Well, our view is that it was the general counsel's burden to establish that that burden arose with respect to any particular change.

[00:04:35] Speaker 06:
I guess, can you just answer my question, as your answer is, we don't know, or we don't have to say, because they're the ones that have to prove it?

[00:04:43] Speaker 01:
Well, I think, Your Honor, frankly, the answer is the second, is that the burden falls to the general counsel here on summary judgment to come forward with evidence, first of all, that there was a change that triggered the duty to barter.

[00:04:54] Speaker 01:
Now, if you look at the list in the Hoyer letter.

[00:04:56] Speaker 03:
Counsel, can I ask you a question?

[00:04:58] Speaker 03:
In the Hoyer letter, it says, most of the changes described above likely are changes in working conditions, right?

[00:05:05] Speaker 03:
So is it your position that those I understand that you know is the position in this letter that the CBA required notice but your position is the statute did not require notice.

[00:05:17] Speaker 03:
What is your position?

[00:05:18] Speaker 01:
My position is that on summary judgment

[00:05:21] Speaker 01:
It was the general counsel's burden to come forward with evidence showing that the duty of the bargain arose with respect to any potential.

[00:05:28] Speaker 03:
Why can't they rely on this statement?

[00:05:30] Speaker 03:
Most of the changes described above were changes in working conditions.

[00:05:33] Speaker 01:
Well, the board read that as a quote unquote concession, which is what the general counsel argued.

[00:05:38] Speaker 01:
Now, it's not a concession that any change in that list was, in fact, a change in working conditions toward the new duty of argument.

[00:05:45] Speaker 06:
I really am having a heart attack.

[00:05:46] Speaker 06:
I could understand if you were coming up here and saying, we're on summary judgment.

[00:05:51] Speaker 06:
And there are material issues of fact.

[00:05:55] Speaker 06:
What you had to bargain over, whether you had to bargain at all.

[00:05:59] Speaker 06:
Maybe that's more of a legal question than a factual question.

[00:06:02] Speaker 06:
And then whether you satisfied your obligation to bargain.

[00:06:07] Speaker 06:
So I could understand an argument that was just saying summary judgment is not appropriate in this circumstance, because there are material issues of disputed facts.

[00:06:16] Speaker 06:
But it seems like your argument is a little different.

[00:06:19] Speaker 06:
You're arguing that as a matter of law, they have to show that what you did

[00:06:26] Speaker 06:
was something that you had an obligation to bargain over, even on impact and implementation?

[00:06:31] Speaker 01:
No, I think, Your Honor, and the way you describe the argument you could understand is the argument I think I'm trying to make, which is this is summary judgment.

[00:06:40] Speaker 01:
And there are factual issues here.

[00:06:42] Speaker 01:
For example, one of the changes was that each employee of the Capitol Police would be given a bottle of hand sanitizer.

[00:06:50] Speaker 01:
Now, does that raise the duty of the bargain?

[00:06:52] Speaker 03:
Council, where do you argue in your brief that there is a genuine issue of fact that precludes summary judgment of no notice?

[00:07:03] Speaker 03:
Because I'm having a hard time seeing it, and if you made it, I want to make sure I consider that.

[00:07:18] Speaker 01:
Well, Your Honor,

[00:07:20] Speaker 01:
The first argument in our brief is that the board heard in concluding... Could you tell me, like, what page should I be looking at?

[00:07:26] Speaker 03:
Make sure I'm following along with you?

[00:07:28] Speaker 03:
Do I see exactly where in your brief you mention genuine issues and material facts that preclude summary judgment?

[00:07:34] Speaker 01:
Your Honor, I don't know if that specific language appears in the brief.

[00:07:39] Speaker 01:
And I couldn't tell you right now if it does where it does.

[00:07:42] Speaker 01:
But what we did argue in the brief was that the board failed to require the general counsel to meet its burden to come forward with evidence.

[00:07:53] Speaker 01:
And it's only when the movement for summary judgment comes forward with evidence sufficient to show that it's entitled to relief.

[00:08:00] Speaker 03:
I understand.

[00:08:00] Speaker 03:
I mean, I understand that's issue one.

[00:08:03] Speaker 03:
Did the board air in concluding?

[00:08:04] Speaker 03:
that they met their burden to show entitlement to summary judgment.

[00:08:09] Speaker 03:
But it's written like it's a legal issue, like they had to prove a negative.

[00:08:13] Speaker 03:
So I'm just wondering, where do you raise factual disputes?

[00:08:16] Speaker 03:
Well, no, they didn't have to prove a negative.

[00:08:18] Speaker 03:
They had to prove lack of notice.

[00:08:21] Speaker 03:
Could you tell me more to my question?

[00:08:23] Speaker 03:
I could see where there's a genuine issue of material fact.

[00:08:27] Speaker 03:
Where do I see that in your brief, that you've made that argument?

[00:08:31] Speaker 03:
Even if it's inferred, where is it?

[00:08:34] Speaker 01:
Well, I think it is inferred or implied.

[00:08:37] Speaker 03:
OK, where do you say facts preclude that there are facts on notice?

[00:08:44] Speaker 03:
There are facts, something about facts and notice.

[00:08:48] Speaker 01:
Well, what we say about notice is that the board bases conclusion on notice on its interpretation of the declaration by the union president about the Hoyer letter, where he said that we did not receive a copy of the Hoyer letter.

[00:09:05] Speaker 01:
until on or shortly after May 7, 2020.

[00:09:09] Speaker 01:
But if you look at that declaration, he does not say that that was our first notice, that we did not receive notice before that.

[00:09:27] Speaker 01:
I'm at Appendix 401 and 402.

[00:09:29] Speaker 03:
Oh, I meant in your appeal brief before us.

[00:09:33] Speaker 03:
In my appeal brief.

[00:09:33] Speaker 03:
Because we only consider issues that are raised to us.

[00:09:44] Speaker 01:
Page 22 of the brief.

[00:09:46] Speaker 01:
Nowhere in the record does Mr. Papa-Fantasy or anyone else on behalf of the FOP state that the FOP had no notice of the changes described in the lawyer letter apart from receiving a copy of that letter.

[00:10:00] Speaker 03:
Do you agree there's a statutory duty to provide notice of changes in working conditions that survive suspension in the CBA?

[00:10:09] Speaker 01:
Yes.

[00:10:10] Speaker 01:
And the board found as much.

[00:10:11] Speaker 01:
The board said that there are situations in emergencies where that happens.

[00:10:18] Speaker 01:
bargaining, the notice required for that bargaining can be post implementation because the emergency requires immediate documentation.

[00:10:26] Speaker 01:
These changes took place in the context of the COVID epidemic back in March 2020.

[00:10:30] Speaker 01:
People were dying across the country.

[00:10:33] Speaker 03:
Do you take the position that the foyer letter was timely notice?

[00:10:39] Speaker 01:
I am not arguing that the employer letter was timely notice.

[00:10:42] Speaker 01:
What I'm arguing is that the general counsel's office failed to show that they did not receive timely notice.

[00:10:49] Speaker 01:
And to do that, it would have been very simple to put in an affidavit saying, we did not receive notice of X change until Y date.

[00:10:57] Speaker 03:
In their statement of undisputed facts, they say that they didn't receive notice, right?

[00:11:03] Speaker 01:
Well, what they rely on there is the pop-up.

[00:11:05] Speaker 03:
Did you respond to that statement of undisputed facts?

[00:11:09] Speaker 01:
I believe we did.

[00:11:11] Speaker 03:
Do you know where?

[00:11:14] Speaker 01:
I can't give you a page number off the top of my head, Your Honor.

[00:11:16] Speaker 01:
I apologize.

[00:11:23] Speaker 03:
Wearing your petition for review to the board, did you argue that there was no genuine issue of fact regarding your allegation that the police provided notice of any changes to conditions of employment?

[00:11:33] Speaker 01:
Well, part of the problem here, Your Honor, is that the way this, if you look at the procedural history of this complaint,

[00:11:40] Speaker 01:
The charge started out as a charge that was an unfair labor practice by the Capitol Police in suspending the CBA without bargaining.

[00:11:49] Speaker 01:
And that is the way this thing worked its way through the system until it got to the hearing officer, where he made the finding about notice.

[00:11:59] Speaker 01:
And then the board of directors affirmed that.

[00:12:03] Speaker 01:
And that's where we asked for a hearing.

[00:12:06] Speaker 01:
We asked for a hearing on the issue of notice, because it's clear that the union knew about these changes.

[00:12:13] Speaker 06:
Can I just point you to, this isn't in the argument, just as responding to your response to Judge Stowell's question.

[00:12:19] Speaker 06:
It's not in the argument, but in the fact section on page 12

[00:12:32] Speaker 06:
to suspend the CBA.

[00:12:34] Speaker 06:
They provided documentary evidence.

[00:12:36] Speaker 06:
You provided documentary evidence that while the CBA was suspended, the parties negotiated the impact and implementation of changes to working conditions, and that the UCSCP had not refused any grievance or arbitration during the suspension.

[00:12:50] Speaker 06:
And then you go on to talk about this.

[00:12:53] Speaker 06:
So what is the purpose of having this there?

[00:12:56] Speaker 06:
Were you refuting the facts?

[00:12:58] Speaker 06:
Were you saying that the inferences should be viewed as youth?

[00:13:01] Speaker 06:
I, like Judge Stull, am looking for your argument, which maybe in your view, it's another way of saying it by saying it wasn't our burden.

[00:13:11] Speaker 06:
So whatever they put on, inference is going for us.

[00:13:15] Speaker 06:
It's insufficient.

[00:13:16] Speaker 06:
Is that part and parcel of saying there's at a minimum an issue of disputed fact here?

[00:13:22] Speaker 01:
Yes.

[00:13:23] Speaker 06:
Yes, very much so.

[00:13:25] Speaker 06:
And where do you get the closest to saying that in your dream?

[00:13:28] Speaker 01:
Well, as I said, it is clear that the unions knew about these changes.

[00:13:32] Speaker 01:
They'd been implemented.

[00:13:33] Speaker 01:
The union was already, if you look, on April 6th, one of the changes was that people who tested positive would not be allowed to come back to work.

[00:13:43] Speaker 01:
And on April 6th, which is only a couple of weeks after this all happened, after the changes began, the union demanded to know who those people were.

[00:13:51] Speaker 01:
So the union clearly knew about these things.

[00:13:54] Speaker 01:
Your Honor, I see that my time has stopped dwindling.

[00:13:59] Speaker 03:
I'd be asking one more question.

[00:14:00] Speaker 03:
Do you want to continue or should we?

[00:14:03] Speaker 03:
Please.

[00:14:04] Speaker 03:
OK.

[00:14:04] Speaker 03:
I want to ask you two more questions.

[00:14:08] Speaker 03:
Let's see.

[00:14:10] Speaker 03:
What in the evidence do you identify to show affirmative acts of notice by the police?

[00:14:17] Speaker 01:
Well, Your Honor, with all due respect, that is not the point.

[00:14:23] Speaker 01:
Because the Capitol Police obligation to come forward with that evidence doesn't arise.

[00:14:28] Speaker 03:
Can you answer my question anyway?

[00:14:30] Speaker 03:
Let's assume for a minute that I don't agree with you on that.

[00:14:33] Speaker 03:
I understand they have the burden of proof.

[00:14:35] Speaker 03:
But I also think that you have, you participated, you moved for summary judgment on your, both parties cross-moved here.

[00:14:42] Speaker 03:
And I'm not considering the denial of your motion.

[00:14:45] Speaker 03:
But I nonetheless want you to answer my question.

[00:14:48] Speaker 01:
And the question is, where in the record did we put forward evidence?

[00:14:51] Speaker 03:
Yeah, where in the record is there evidence of formal notice or actual notice?

[00:14:56] Speaker 01:
Well, Your Honor, I see on page 12 of our brief we cite appendix pages 443, 450, and 525.

[00:15:01] Speaker 01:
I'd have to see what those are.

[00:15:17] Speaker 03:
I think they might be emails.

[00:15:20] Speaker 01:
They may be.

[00:15:21] Speaker 06:
So are you saying that emails that reflect that you were discussing these issues with the union was clearly established that they knew about it because you were discussing that with them?

[00:15:35] Speaker 06:
Is that what your position is?

[00:15:37] Speaker 01:
They do show that, as does the fact that, as I mentioned, the union was demanding to know the names of the people subject to these changes on April 6.

[00:15:47] Speaker 01:
So they clearly didn't know.

[00:15:49] Speaker 03:
Um, what, what was, what happened on April 6th that shows that they definitely knew?

[00:15:56] Speaker 01:
April 6th is when the union, if you look at the Hoyer letter, this is an appendix page 462.

[00:16:05] Speaker 01:
The Hoyer letter states that on April 6th, the union demanded to know the names of the people who had tested positive for COVID.

[00:16:15] Speaker 03:
But that's not.

[00:16:16] Speaker 03:
That doesn't show that they knew of all of the changes, the 35 changes that were listed in the Hoyer.

[00:16:21] Speaker 01:
Not all of them, but it does show that they knew of the first one, which was that people who tested positive would not be allowed to come to work.

[00:16:28] Speaker 03:
OK.

[00:16:29] Speaker 03:
So one other question is, I believe that the decision below characterizes the email exchanges not as necessarily showing actual notice, but as showing evidence of negotiation.

[00:16:45] Speaker 03:
How do you respond to that?

[00:16:51] Speaker 01:
Well, I think the emails do show evidence of negotiations.

[00:16:54] Speaker 01:
I mean, the board refers in this decision to the evidence that the Capitol Police Board.

[00:16:59] Speaker 03:
I read through all the emails, and they don't identify all of the changes.

[00:17:03] Speaker 03:
There's quite a few of them that aren't identified according to the 35 in the Hoyer letter versus the email.

[00:17:10] Speaker 03:
So I'm just trying to understand your reliance on the emails.

[00:17:14] Speaker 03:
Is it more circumstantial evidence?

[00:17:16] Speaker 03:
combined with Mr. Sun's declaration perhaps.

[00:17:21] Speaker 03:
I'm just trying to get my understanding of how you think it raises a genuine issue of material fact.

[00:17:27] Speaker 01:
The problem, Your Honor, is that, as I said at the beginning, before the duty to bargain arises, there has to be a change that, A, affects the unit, and B, rises to the level of required bargaining.

[00:17:40] Speaker 01:
And that was the general counsel's first burden to prove by summary judgment, to put forward evidence of that.

[00:17:46] Speaker 01:
And they did not need to.

[00:17:47] Speaker 03:
So your view is there's a genuine issue of material fact that precludes summary judgment based on that?

[00:17:52] Speaker 03:
Yes.

[00:17:53] Speaker ?:
OK.

[00:17:53] Speaker 01:
Well, my view is that the General Counsel failed to meet its burden to show the absolute

[00:18:23] Speaker 02:
May it please the court.

[00:18:24] Speaker 02:
My name is John Mickley, I represent the Office of Congressional Workplace Rights.

[00:18:28] Speaker 02:
OCWR's motion for summary judgment included undisputed evidence showing that the capital- Before we get to that, can I ask you one?

[00:18:36] Speaker 06:
You raised the stuff about there seems to be a stay that you say they didn't pursue their rights until- Has anything gone into effect yet?

[00:18:44] Speaker 02:
No, Your Honor.

[00:18:45] Speaker 06:
There has not been any- The other thing I guess I could have is a global question.

[00:18:49] Speaker 06:
Since the board

[00:18:51] Speaker 06:
didn't answer the questions that were the vast, I understood the vast majority of the issues in complaint and hearing officer had to do with the allegation that they had unlawfully abrogated the collective bargaining agreement and that they had also, even if they could abrogate it, had failed and refused to bargain over the impact and implementation of

[00:19:16] Speaker 06:
getting rid of the CBA, not the future changes.

[00:19:20] Speaker 06:
I'm right about that, right?

[00:19:22] Speaker 02:
That that was the focus of the discussion.

[00:19:24] Speaker 06:
Now, the board says, never mind.

[00:19:26] Speaker 06:
What if we were to vacate this and to send it back for a hearing, because we think there were disputes of fact, and it were to turn out that the employer prevails here?

[00:19:40] Speaker 06:
because you haven't carried your burden to show that they did not bargain or give adequate notice on the impact of the implementation marketing.

[00:19:46] Speaker 06:
Do you think the board's then going to say, well, now that we didn't win on that, we've got to go back to the CBA issue?

[00:19:53] Speaker 06:
It's just very odd to me that they allied with the CBA issue.

[00:19:56] Speaker 06:
So what do you think happens then?

[00:19:58] Speaker 06:
Is that issue still potentially alive if you lose on this much more narrow aspect, or is that just gone?

[00:20:07] Speaker 02:
Your Honor, I'm not certain.

[00:20:09] Speaker 02:
I believe that if it were sent back, you're saying if it were sent back, could the other issues be raised and then set aside the impact and implementation bargaining?

[00:20:21] Speaker 02:
I presume that that could be the case, but we certainly would disagree with that.

[00:20:25] Speaker 02:
And we think that we did satisfy our burden on summary judgment.

[00:20:31] Speaker 02:
And if I may, there was substantial evidence in the record showing that the Capitol Police did not announce their changes to conditions of employment.

[00:20:42] Speaker 02:
And that undisputed evidence that's in the record is, as your honors were discussing, the letters and emails between the parties at the beginning of the pandemic.

[00:20:50] Speaker 06:
I thought they relied on two things, and I thought those two things were the union officials' declaration, which I frankly don't think does it.

[00:20:59] Speaker 06:
Because all he says is he didn't get formal notice from the employer at the same time that the Hoyer letter went out.

[00:21:07] Speaker 06:
That doesn't answer the question.

[00:21:09] Speaker 06:
He could have and should have and maybe would have said.

[00:21:12] Speaker 06:
And I didn't know about any of these changes until I saw them in the Hoyer letter.

[00:21:15] Speaker 06:
But he doesn't say that.

[00:21:17] Speaker 06:
And the other thing the board relied on, as I recall, was that somebody asked the employer, what did you do when they weren't responsive?

[00:21:28] Speaker 02:
And I believe what's more your honor is the letters in the emails themselves which is the extensive communication between the parties at the beginning of the pandemic showing.

[00:21:43] Speaker 02:
all of their discussions, and in each subsequent letter showing that the CBA suspension is being extended, the board itemizes each of those letters and notes that in each additional extension, there is no notice of what changes they're going to do during this extension.

[00:22:01] Speaker 02:
And that's even though this charge was pending even at that time.

[00:22:04] Speaker 06:
Why don't you show me where the board talks about that?

[00:22:19] Speaker 06:
So I mean, they say on page 12, it is unnecessary for us to opine on when notice of those changes should have been given in this case.

[00:22:28] Speaker 06:
So they're not saying that they had to.

[00:22:30] Speaker 06:
Because notice of the changes were never given to the union even after the changes were implemented.

[00:22:38] Speaker 06:
But don't the emails reflect that they were discussing the changes?

[00:22:43] Speaker 06:
And doesn't even they're getting the Hoyer letter

[00:22:47] Speaker 06:
even if they got it after it was sent to Hoya, when they say they're not talking about what the timing was, but they were never given notice even after the changes were implemented.

[00:23:00] Speaker 02:
So a couple things there, Your Honor.

[00:23:01] Speaker 02:
First, the

[00:23:05] Speaker 02:
Hoyer letter does, in and of itself, it admits that it doesn't even list all of the changes to conditions of employment that exist.

[00:23:12] Speaker 02:
And that list has never been provided to anyone.

[00:23:15] Speaker 06:
OK, so your view is there's stuff beyond the Hoyer letter that would change if they made.

[00:23:20] Speaker 06:
But we don't know what those changes were, and that's sufficient to get you summary judgment.

[00:23:25] Speaker 06:
Don't all inferences go to the other side in summary judgment context?

[00:23:28] Speaker 02:
Your Honor, our view is that the communication between the parties at the beginning of the pandemic, those emails that you're talking about, those are just discussing a finite number of issues that the parties were raising.

[00:23:41] Speaker 02:
It's not full on notice and response bargaining over the impact and implementation of the 35 changes that we know happened.

[00:23:50] Speaker 03:
But this decision that we're reviewing isn't looking at notice and response and bargaining.

[00:23:56] Speaker 03:
It's only looking at notice.

[00:23:57] Speaker 03:
We are not looking at responsive bargaining.

[00:23:59] Speaker 03:
You want a notice alone.

[00:24:01] Speaker 03:
So make sure you keep it to that.

[00:24:04] Speaker 03:
But also, I want to follow up on that lawyer letter comment.

[00:24:08] Speaker 03:
This sentence, in the board's opinion, does seem wrong, where it says that they didn't even get any notice ever.

[00:24:17] Speaker 03:
It's hard to find that that would be sufficient given the Hoyer letter, right?

[00:24:24] Speaker 02:
You're saying, does the Hoyer letter amount to notice?

[00:24:27] Speaker 03:
Yes, that's what I'm asking.

[00:24:29] Speaker 02:
I do not believe that the Hoyer letter satisfies their duty to provide sufficient notice to the union of the changes and conditions of employment.

[00:24:37] Speaker 03:
Why not?

[00:24:37] Speaker 02:
Well, first of all, Your Honor, it's a letter to Congress.

[00:24:40] Speaker 02:
It's not a letter to the union.

[00:24:42] Speaker 02:
I believe they only received it tangentially later on, not even directly from the Capitol Police.

[00:24:48] Speaker 02:
And second of all, it's notice of changes that have already been made.

[00:24:56] Speaker 06:
The board has already told us that they're not looking at when the timing was, and it's not clear under the circumstances

[00:25:04] Speaker 06:
Given that there's been no finding that they unlawfully aggregated the effective bargaining agreement, I don't think anybody can resolve what kind of notice was necessary, the timing of the notice, for any number of maybe 100 things.

[00:25:19] Speaker 06:
Like if they're going to close the dining room because somebody tested positive that morning,

[00:25:27] Speaker 06:
I mean, there are plenty of things that were happening.

[00:25:30] Speaker 06:
And the timing of the notice, nobody has said definitively they needed two weeks notice.

[00:25:34] Speaker 06:
In fact, part of the reason they abrogated the collective bargaining agreement and the union said we need to, rightly or wrongly, but they haven't done so wrongly, was because of all of these notice requirements and the obligations to bargain and that they couldn't do it in light of the emergency.

[00:25:52] Speaker 06:
The board didn't find that they had to give a certain amount of notice, right?

[00:25:57] Speaker 02:
No.

[00:25:57] Speaker 02:
That's right, Your Honor.

[00:25:58] Speaker 02:
They found that this notice here was wholly insufficient.

[00:26:01] Speaker 06:
Why?

[00:26:02] Speaker 06:
On what basis?

[00:26:03] Speaker 06:
I mean, they have to give a reason.

[00:26:04] Speaker 06:
Wholly insufficient why?

[00:26:05] Speaker 06:
Because did they say that item number 24, the union tells us?

[00:26:10] Speaker 06:
I mean, the union was the one that has all the information.

[00:26:13] Speaker 06:
They know whether they got noticed and when they got out.

[00:26:16] Speaker 06:
So there's nothing on the record, as far as I know, other than this union declaration about when they got

[00:26:21] Speaker 06:
the informally got the notice of the Hoya letter.

[00:26:25] Speaker 06:
Are there any union?

[00:26:27] Speaker 06:
Am I missing something?

[00:26:28] Speaker 06:
Are there union delegations looking at some of this stuff and saying, we didn't find out until 10 days after they did this that they did it.

[00:26:36] Speaker 06:
We tried to bargain, and they refused to bargain.

[00:26:39] Speaker 06:
Any of that?

[00:26:40] Speaker 02:
Your Honor, that is not in the record.

[00:26:42] Speaker 02:
But there's other pieces of evidence in the record that do demonstrate that the notice didn't exist.

[00:26:47] Speaker 03:
So can I answer that?

[00:26:48] Speaker 03:
That kind of goes to a question I have.

[00:26:50] Speaker 03:
If we were to say there's a genuine issue of material facts, this is very fact specific, and send it back, would there be additional evidence that would be considered on remand on the notice issue?

[00:27:02] Speaker 02:
No, Your Honor, and I think you can see that from- Why not?

[00:27:04] Speaker 03:
You just said there's additional evidence that's not in the record.

[00:27:07] Speaker 03:
Did I misunderstand you?

[00:27:09] Speaker 02:
I don't believe it.

[00:27:10] Speaker 06:
You said there's additional documents that might show- I asked you if there's evidence, and you said not in the record, suggesting that there is evidence.

[00:27:15] Speaker 06:
It's just not in the record.

[00:27:17] Speaker 02:
I apologize.

[00:27:17] Speaker 02:
That's not what I intended to say.

[00:27:19] Speaker 02:
What I- But you could get evidence, right?

[00:27:22] Speaker 06:
I mean, if it was necessary.

[00:27:23] Speaker 06:
I mean, let's assume we say, this isn't sufficient to satisfy summary judgment.

[00:27:28] Speaker 06:
You need something to say, we never got noticed.

[00:27:31] Speaker 06:
of item number 21 until the Hoya letter.

[00:27:36] Speaker 06:
They implemented it.

[00:27:38] Speaker 06:
We don't even know when this stuff in the Hoya letter was implemented.

[00:27:41] Speaker 06:
Some of it could have been implemented five days before the letter went out.

[00:27:44] Speaker 06:
So somebody's got to say, don't we need those specifics?

[00:27:49] Speaker 02:
Your Honor, I think that the court was on the right track in the Capitol Police's argument, pointing to the lack of response that they gave here.

[00:27:58] Speaker 02:
There's nothing that the Capitol Police has provided in their response, in their cross-motion for summary judgment, which was also in opposition to our motion, saying that they gave notice.

[00:28:08] Speaker 03:
That evidence has never been- What about Mr. Sun's declaration?

[00:28:11] Speaker 02:
But all Mr. Sun's declaration says is that they announced the suspension of the CBA.

[00:28:16] Speaker 03:
Maybe I missed it, but let's look at that.

[00:28:19] Speaker 03:
And I'm sorry for interrupting your question.

[00:28:27] Speaker 03:
I think the Sun declaration at page A445, paragraph 17.

[00:28:37] Speaker 03:
It says, nearly every day since I suspended the CBA, I have had email, telephone, and text communications with FOP executive board members, including chairman, I'm afraid I'll put your name, all these different people.

[00:28:50] Speaker 03:
These communications concerned many of the changes the department implemented, as well as union suggestions of steps the department should take.

[00:28:59] Speaker 03:
Now, I realize that he doesn't say exactly what the communications were, but

[00:29:05] Speaker 03:
that we're supposed to make all inferences in favor of the non-movement.

[00:29:12] Speaker 03:
And this suggests there were email, telephone, and text communications.

[00:29:16] Speaker 06:
And the union could have put forth a declaration saying this isn't true, although that, too, would have established that there's a matter of disputing fact here, which would preclude from a judgment.

[00:29:27] Speaker 02:
Your Honor, I believe that those emails that the chief is referencing are in the record.

[00:29:33] Speaker 02:
The extensive communication between the parties is in the record.

[00:29:37] Speaker 03:
But what about the telephone and text communications?

[00:29:39] Speaker 03:
I don't see those in the record.

[00:29:40] Speaker 02:
There's no tax communication in the record, Your Honor.

[00:29:43] Speaker 03:
That's correct.

[00:29:43] Speaker 03:
And there's no telephone communication.

[00:29:46] Speaker 06:
And did the board discuss these emails and say that this didn't demonstrate that the union knew what was going on, even though they were discussing the discipline stuff?

[00:29:57] Speaker 02:
Yes, the board did discuss that.

[00:30:23] Speaker 02:
That's on appendix 11, the first full paragraph, where the board says, the communications from Chief Sund repeatedly notifying the union of the unilateral suspension of the entire CBA and the continued suspension of the agreement lacked any description whatsoever of the resulting changes in conditions of employment that would be affected as a result.

[00:30:45] Speaker 06:
Yeah, but that puts the burden on them to do it.

[00:30:48] Speaker 06:
The burden wasn't on them.

[00:30:49] Speaker 06:
I mean, do you have an affidavit from the union saying,

[00:30:53] Speaker 06:
They didn't do this, and they didn't do that.

[00:30:56] Speaker 06:
There's nothing in the declaration for being an official, right?

[00:31:00] Speaker 02:
That's correct, Your Honor.

[00:31:01] Speaker 06:
But I think- Let me move you to that piece of it, because the board keeps talking about undisputed facts.

[00:31:09] Speaker 06:
And it seems like on the record, and I think maybe some of this is because, and my difficulty in understanding the timeline here, is because essentially you were effectively litigating until the board got it.

[00:31:21] Speaker 06:
The groundless complaint was getting rid of the CBA and not parking on implementation of the CBA.

[00:31:28] Speaker 06:
The hearing officer says, and the board quotes him, the hearing officer concluded there were no material questions in dispute, undisputed facts.

[00:31:36] Speaker 06:
That several times they say that.

[00:31:40] Speaker 06:
And the board's and the hearing officer's decision, now, there may have been no disputed facts on whether or not the employer abrogated the collective bargaining agreement and whether he said he didn't have to bargain over the impact and implementation.

[00:31:55] Speaker 06:
But where is an indication that there were no disputed facts with regard to the subsequent events and changes in the Hoyle letter?

[00:32:05] Speaker 06:
How is that undisputed and how does everybody conclude from the hearing officer up to the board that this is all about undisputed facts?

[00:32:13] Speaker 02:
Yes, Your Honor, I believe it's the lack of evidence in the Capitol Police's motion for summary judgment.

[00:32:20] Speaker 03:
But they were not reviewing their motion for summary judgment.

[00:32:24] Speaker 06:
We're not here to answer to deny their motion for summary judgment.

[00:32:28] Speaker 06:
The burden was all on you on disputed facts, not on that.

[00:32:32] Speaker 06:
Right.

[00:32:32] Speaker 03:
All they had to show is that they provided some notice of some things, maybe?

[00:32:39] Speaker 03:
I mean, right?

[00:32:40] Speaker 03:
because they were trying to to revive your motion for summary judgment that there was no notice whatsoever.

[00:32:47] Speaker 02:
I believe that our motion for summary judgment was that the notice failed to establish, with the specificity necessary under the law, all of the changes to conditions of employment that existed.

[00:32:59] Speaker 02:
And so I don't think that them putting forward some evidence of some notice would have been sufficient.

[00:33:05] Speaker 02:
But it also didn't do that.

[00:33:07] Speaker 02:
There's no evidence in the record that there's some notice of some things listed in the Hoyer letter.

[00:33:16] Speaker 03:
Wait, should we look at your motion on summary judgment?

[00:33:22] Speaker 03:
I think I saw where you raised the issue at the top of page A, 228.

[00:33:27] Speaker 03:
But please tell me if there's something that I'm missing there.

[00:33:32] Speaker 03:
It's A, 228.

[00:33:35] Speaker 03:
This is the motion for summary judgment.

[00:33:38] Speaker 03:
And it says FOP did not receive any direct notice, did not learn of most of the changes until May 7, 2020, or shortly thereafter when it received the Hoyer letter.

[00:33:52] Speaker 03:
Yes.

[00:33:52] Speaker 03:
So is there any place else in this brief where the issue of notice is raised?

[00:33:57] Speaker 02:
In the summary judgment brief?

[00:34:00] Speaker 02:
Yes.

[00:34:01] Speaker 02:
I believe that that's the main section of that brief.

[00:34:04] Speaker 03:
So this is the part where you said there wasn't notice, right?

[00:34:09] Speaker 02:
Yes.

[00:34:10] Speaker 03:
Where do you say here that it was not specific enough, not detailed enough, didn't include all the different things in the Hoyer letter?

[00:34:18] Speaker 03:
Where is that?

[00:34:19] Speaker 02:
Well, I don't believe that we raised that here.

[00:34:21] Speaker 02:
But that was a legislation.

[00:34:22] Speaker 03:
But that's your motion for summary judgment.

[00:34:24] Speaker 06:
And then it wasn't timely into the circumstances.

[00:34:27] Speaker 06:
I mean, because in the Hoya stuff, there's no dates associated for when this stuff was done.

[00:34:31] Speaker 06:
So it could have been done three days before.

[00:34:35] Speaker 02:
Yes, it could have been done.

[00:34:36] Speaker 02:
We don't know when any of the changes were made.

[00:34:38] Speaker 06:
And the board does not make a determination.

[00:34:40] Speaker 06:
And I can appreciate why.

[00:34:42] Speaker 06:
what the actual notice timing of the notice requirement was with each of these changes.

[00:34:47] Speaker 06:
I think it depends on the circumstances, right?

[00:34:50] Speaker 02:
Do you think that the timing of the notice depends on the circumstance of each change?

[00:34:54] Speaker 06:
As I said, if they evacuated the rest of the lunchroom today because three people tested positive, so they couldn't have given 10 days pre-notice for that.

[00:35:06] Speaker 02:
I understand that, Your Honor.

[00:35:07] Speaker 06:
Can we go to the

[00:35:09] Speaker 06:
it's an appendix 166, the Hoya letter, which is the subject of so much discussion, and the 35 points in the Hoya letter.

[00:35:18] Speaker 06:
Well, I'm not going to make you go through all 35.

[00:35:22] Speaker 06:
But frankly, some of these clearly come off the list.

[00:35:28] Speaker 06:
I mean, it just seems like these aren't issues that are subject to bargaining.

[00:35:35] Speaker 06:
But can you pick out three or four or five of these?

[00:35:39] Speaker 06:
that one, demonstrate that the employer didn't give notice to the union, and that the union had the right to bargain over impact and implementation, and what notice would look like.

[00:35:51] Speaker 06:
So pick your top five or your top two.

[00:35:53] Speaker 06:
We can separate the two.

[00:36:01] Speaker 02:
My top two that would require impact and implementation bargaining, Your Honor?

[00:36:05] Speaker 02:
Sure.

[00:36:06] Speaker 02:
So it's not necessarily my top two, but I'll pick out two.

[00:36:12] Speaker 02:
On 166, we see for all eligible civilian and sworn employees, department implemented an emergency telework status requiring employees to work from home where possible to facilitate social and physical distancing.

[00:36:33] Speaker 02:
And then we see,

[00:36:35] Speaker 06:
So you're saying the union didn't have notice of this emergency telework status requiring employees to work from home?

[00:36:49] Speaker 06:
They didn't have notice?

[00:36:50] Speaker 02:
No, I'm saying that there was never notice given to the union in sufficient time to bargain over the impact and implementation of it.

[00:36:57] Speaker 06:
And what declaration or what evidence suggests that?

[00:37:00] Speaker 02:
I would say that all of the communication between the parties that don't contain any notice of that says that.

[00:37:07] Speaker 06:
Well, I mean, we talked about how it's hard to prove a negative, but the burden is on you all.

[00:37:14] Speaker 06:
Why, if they didn't get notice, and you say sufficient time, and I have no idea what that means, but don't you need somebody to come in and say, on this item, they never told us about this, or they told us about it on May 1st.

[00:37:29] Speaker 06:
and it went into effect on April 15th.

[00:37:33] Speaker 06:
Doesn't somebody have to tell us that information?

[00:37:36] Speaker 06:
You're the moving part of it.

[00:37:37] Speaker 02:
Well, I believe that what the board is getting at is that it's never been clearly articulated.

[00:37:45] Speaker 02:
And as far as other changes go, I'd like to raise just the changes that really go to the heart of the labor management relationship.

[00:37:52] Speaker 02:
So we know that in suspending the entire CBA,

[00:37:56] Speaker 02:
We know that they eliminated the entire grievance and arbitration procedure.

[00:38:02] Speaker 02:
We know that they eliminated all official time.

[00:38:04] Speaker 02:
That's the paid time off that union officials have a statutory right to for representing their employees.

[00:38:12] Speaker 02:
And we know that all disciplinary and representational rights of the union, which is their statutory right, were suspended to the CBA.

[00:38:23] Speaker 06:
So those are... There's a May 25th email regarding discussions that the union was having with the employer, and it says, in your email, you indicate that two officers covered by the CBA were recently issued discipline, and you suggested this wasn't violation of the agreement between you and Chief Zahn.

[00:38:39] Speaker 06:
The discipline would not be issued during the thing.

[00:38:41] Speaker 06:
So they were discussing it.

[00:38:42] Speaker 06:
I think they actually put all this stuff on hold, right?

[00:38:46] Speaker 02:
They assert that they put disciplines on hold, yes.

[00:38:50] Speaker 06:
Okay.

[00:38:52] Speaker 06:
And it appears that there was some discussion.

[00:38:54] Speaker 06:
So did they not know about it before it happened?

[00:38:59] Speaker 06:
I mean, where's the gravamen of the violation here with respect to that matter?

[00:39:04] Speaker 02:
The gravamen of the violation is that these are conditions of employment of employees.

[00:39:10] Speaker 02:
Their ability to file grievances under the collective bargaining agreement, their ability to have sworn officers who are union officials take official time.

[00:39:24] Speaker 02:
These are conditions of employment of employees that, again, really go to the heart of the statutory labor management relationship.

[00:39:31] Speaker 02:
that were suspended with no notice or an opportunity to even discuss it with the union.

[00:39:37] Speaker 02:
And these conditions of employment that are so central to the union's relationship, those ones were the ones that remained suspended the longest.

[00:39:47] Speaker 06:
Well, they say they stayed the deadlines relating to disciplinary action, right?

[00:39:53] Speaker 06:
Isn't that what the union would have wanted?

[00:39:55] Speaker 06:
Yes, okay, so the department that's what one item number 12 says the department state deadlines related to disciplinary appeals the deadline clock for filing disciplinary appeals will not restart until the CBA is reinstated They did say that your honor.

[00:40:11] Speaker 06:
Yes

[00:40:13] Speaker 03:
I have a question for you about the remedy being sought.

[00:40:18] Speaker 03:
I was curious about the board's order, how do they move different items for a remedy, including making employees whole, and then also your complaint seeks additional remedies.

[00:40:32] Speaker 03:
I just wasn't quite sure.

[00:40:34] Speaker 03:
I was curious as to what the remedy is, more specifically, just so I can understand what it is.

[00:40:40] Speaker 02:
Thanks, Your Honor.

[00:40:41] Speaker 02:
The remedy that we're seeking is

[00:40:43] Speaker 02:
Notice to the union of the changes of conditions of employment that were made From the start of the suspension of the CBA up until the time on the CBA was reinstated Such that the union has notice and an opportunity to bargain over those.

[00:40:57] Speaker 03:
We're also how do you bargain over something?

[00:40:59] Speaker 03:
I mean I the CBA is back in effect now.

[00:41:02] Speaker 03:
This has been a while, right?

[00:41:04] Speaker 03:
And so how how do you retroactively take care of that?

[00:41:08] Speaker 02:
Well, there could be.

[00:41:09] Speaker 02:
I mean, it would totally depend on what the notice given by the Capitol Police is, what they say they did.

[00:41:16] Speaker 02:
We don't even know.

[00:41:17] Speaker 06:
Well, you don't know, but you're issuing a complaint based on the changes that were listed in the Hoya letter.

[00:41:25] Speaker 06:
So let's look at the Hoya letter.

[00:41:27] Speaker 06:
The department implemented social and physical distancing practices at daily roll calls to reduce the potential for transmission in the virus.

[00:41:36] Speaker 06:
We have no idea on this record

[00:41:38] Speaker 06:
whether notice was given or not given, even though the burden is on you in some regions.

[00:41:43] Speaker 06:
So we don't know if notice was given.

[00:41:46] Speaker 06:
We don't know if the union said, that's great, or the union said, we have a problem after receiving notice.

[00:41:52] Speaker 06:
So what do we do with that in terms of a make-all remedy?

[00:41:58] Speaker 06:
What's the make-all remedy for that?

[00:42:00] Speaker 02:
So I understand that there are some of these, you know, COVID specific changes to conditions of employment that it wouldn't be.

[00:42:07] Speaker 06:
Well, isn't that what most of these 35 items are?

[00:42:11] Speaker 02:
Yes, they are a lot of safety measures that were instituted during the pandemic.

[00:42:15] Speaker 02:
Yes, but there's many other changes to conditions of employment that we know existed and that we know happen.

[00:42:20] Speaker 03:
Can you give an example of one?

[00:42:23] Speaker ?:
So.

[00:42:24] Speaker 02:
uh... an example of a of the change that of the change and just trying to understand that the remedy is so so if you if you have an example of something sure so so an example would be with respect to scheduling right so there's there's various uh... there's various scheduling and overtime provisions in the collective bargaining agreement by suspending the collective bargaining agreement those the all of that scheduling the whole scheduling framework that that the parties have and in the union's ability to

[00:42:53] Speaker 02:
to negotiate over that was no longer existed.

[00:42:57] Speaker 03:
So that's... So that goes to your complaint about the suspension of the collective bargaining agreement.

[00:43:05] Speaker 03:
That doesn't go to notice and the lack of notice and the ability under the statute.

[00:43:11] Speaker 03:
I think this lack of notice argument is under the statute, not under the CBA, right?

[00:43:16] Speaker 03:
I don't understand.

[00:43:16] Speaker 06:
Were you just saying that I thought the board didn't... They didn't lose.

[00:43:21] Speaker 06:
There's no ruling.

[00:43:22] Speaker 06:
that they unlawfully implemented, aggregated the collective bargaining agreement.

[00:43:27] Speaker 06:
And there's also no ruling with their field to bargain over the impact and implementation of that.

[00:43:32] Speaker 06:
Am I wrong?

[00:43:32] Speaker 06:
Am I missing something in the board of opinion?

[00:43:34] Speaker 06:
I thought the board allied that issue entirely.

[00:43:36] Speaker 02:
Your Honor, I was trying to respond to you.

[00:43:38] Speaker 02:
You were trying to target what are some, what's an example of a change to a condition of employment that the union may be interested in bargaining over at this stage.

[00:43:47] Speaker 06:
Well, you know, Judge Stone, I think, was interested in what's the make whole argument.

[00:43:53] Speaker 06:
you can't get a make the make whole dealt with the buck rather than the violation of the board file and the board didn't find a violation for the aggregation of the collective bargaining agreement or for impact and implementation bargaining over that the only over that application they only found a

[00:44:11] Speaker 06:
The only stuff we refer to is the stuff in the letter.

[00:44:14] Speaker 03:
So let's say, let's say we affirm.

[00:44:19] Speaker 03:
I'm following up on her question.

[00:44:21] Speaker 03:
If we were to affirm, what is your make-all remedy?

[00:44:23] Speaker 03:
Because that would be the end of this.

[00:44:26] Speaker 03:
Decision, right?

[00:44:28] Speaker 02:
Yeah.

[00:44:28] Speaker 03:
Yeah, so the the you're talking about the make-hole remedy for the for the employees because you were You have a complaint that you filed where you've said that you will have certain remedies you're seeking I want to know what remedies you were you were seeking for the lack of notice so we're seeking a an order and

[00:44:49] Speaker 02:
requesting that the Capitol Police provide the union with an itemized list of the changes to conditions of employment that it made during the CBA suspension, such that the union has an opportunity to bargain over those changes, over the changes, demand to bargain over them.

[00:45:05] Speaker 02:
That's the order that we're seeing.

[00:45:06] Speaker 06:
OK, it may be during that are still on effect, or just that those that they changes to the collective bargaining agreement, when the collective bargaining agreement didn't exist, and they did stuff that was COVID related.

[00:45:19] Speaker 06:
that was only on an emergency basis that was no longer in effect.

[00:45:22] Speaker 06:
Is that stuff on the table?

[00:45:24] Speaker 06:
And are you, when you say make-hole remedy, is there some make-hole remedy they should get for the three or two or four weeks?

[00:45:32] Speaker 06:
that the collective bargaining was suspended?

[00:45:35] Speaker 02:
I think we're getting caught up on the make whole portion of this, but we do believe.

[00:45:38] Speaker 06:
Well, is there no make whole remedy, or is there?

[00:45:40] Speaker 02:
There may be a make whole remedy depending on the changes that are announced to the union pursuant to an order of this court that affirms the board's order.

[00:45:52] Speaker 06:
I'm giving you more specifics.

[00:45:54] Speaker 06:
A make whole remedy with respect to what?

[00:45:57] Speaker 06:
Something in the Coyah letter that reflect the alleged changes that were made

[00:46:02] Speaker 06:
during this period where the CBA didn't exist?

[00:46:06] Speaker 02:
Your Honor, I think, just respectfully, I think that we're, that the Hoyer letter is, is serving, the Hoyer letter serves as evidence that the Capitol Police made these changes without, made certain changes that it admitted to without providing notice.

[00:46:21] Speaker 02:
But we don't know the extent of the changes that they made during the CBA suspension.

[00:46:25] Speaker 06:
Do you think he'd get an order from the board finding a violation

[00:46:29] Speaker 06:
And then you get to do discovery and investigation about what the violation was.

[00:46:36] Speaker 06:
So you can award a remedy based on something that isn't even in the record now.

[00:46:40] Speaker 06:
Are you talking about stuff that's not currently in the record?

[00:46:44] Speaker 02:
Your Honor, we believe that we do not know the extent of the changes that the Capitol Police made.

[00:46:49] Speaker 06:
Can you answer my question?

[00:46:50] Speaker 06:
So are you dealing with the make-all remedy for changes or things that happened that are not included in any place in this record?

[00:46:57] Speaker 02:
Yes, and that's what the board held.

[00:46:59] Speaker 02:
Because by what, in the Hoyer letter, when the Capitol Police say that these are just some of the changes to conditions of employment that they made, they're admitting that there are changes to conditions of employment that exist out there that they have never announced to the union.

[00:47:13] Speaker 06:
So where's the board's order?

[00:47:15] Speaker 06:
What is the board saying in regards to that?

[00:47:18] Speaker 06:
You say that's what the board held.

[00:47:20] Speaker 06:
Look, it's under B.

[00:47:22] Speaker 06:
A14, to make the employees whole for any and all losses they have incurred as a result of the unilateral changes to their conditions of employment resulting from or during the indefinite suspension of the CBA.

[00:47:39] Speaker 04:
Yes, Your Honor.

[00:47:39] Speaker 06:
So are you saying that we've got a record, and you're going for summary judgment, predicated on the fact that there are no factual disputes about any of these matters.

[00:47:48] Speaker 06:
So we should say, yes, we're granting you summary judgment.

[00:47:51] Speaker 06:
no factual dispute, and now you get to do an investigation about what changes occurred, when notice was given, and then decide what the make-all remedy is for those changes as part of the remedy in this case?

[00:48:07] Speaker 02:
Yes, Your Honor.

[00:48:08] Speaker 02:
Yes.

[00:48:20] Speaker 06:
Even though we're way over time, there'll be your five minutes, Ms.

[00:48:24] Speaker 06:
Michak.

[00:48:25] Speaker 06:
Is it Michak?

[00:48:31] Speaker 00:
Good morning.

[00:48:32] Speaker 00:
Megan Michak from McGillivary Steel Elkin on behalf of the intervener in this case, the FOP, United States Capitol Police Labor Committee.

[00:48:41] Speaker 00:
In this particular case, we need to take a step back and recognize how unprecedented and unusual what the United States Capitol Police did in this case.

[00:48:50] Speaker 00:
What it did was conclude that the beginning of the COVID-19 pandemic, that it was unable to respond

[00:48:56] Speaker 00:
to the unpredictable circumstances presented by that pandemic, while also complying with its obligations under federal law.

[00:49:03] Speaker 00:
And it simply roped the union out of existence for that period.

[00:49:09] Speaker 00:
So from March of 2020, when the United States Capitol Police notified the union that the CBA was going to be suspended until it was fully reinstated in April of 2021.

[00:49:19] Speaker 05:
You didn't prevail on that question about whether or not they had the ability to do that.

[00:49:25] Speaker 00:
I believe that the board concluded that or that the hearing officer on the board concluded that they did not need to reach that question because they were We don't need to reach that question.

[00:49:38] Speaker 06:
Yes, ma'am.

[00:49:39] Speaker 06:
So why don't we talk about what the board did?

[00:49:42] Speaker 00:
Okay.

[00:49:43] Speaker 00:
So in this particular case, the board concluded that there was not adequate notice to the union of the changes to working conditions that were made during the pandemic.

[00:49:53] Speaker 00:
And we believe that there is adequate evidence in the record to show that.

[00:49:57] Speaker 00:
because there is evidence in the record to show that from the notices that the United States Capitol Police provided, starting with its first notice, which is at A-153, and continuing on, all that Chief Sond let the board or let the union know was that the CBA was going to be suspended in its entirety.

[00:50:17] Speaker 00:
And I think it's important to turn to the efforts of discovery in this case, specifically the United States Capitol Police's responses to inquiries

[00:50:27] Speaker 00:
by the Office of Congressional Workplace Rights, specifically Ms.

[00:50:32] Speaker 00:
Cindyan's June 8, 2020 letter.

[00:50:34] Speaker 03:
Could you give us the site for that?

[00:50:36] Speaker 00:
Yes, ma'am.

[00:50:37] Speaker 00:
It starts at A379.

[00:50:40] Speaker 00:
And in that correspondence, Ms.

[00:50:43] Speaker 00:
Cindyan, our USCP, is asked a number of questions, including identifying the emergency measures that were adopted and the dates that they were implemented.

[00:50:52] Speaker 03:
And the only thing that they identified was the Hoyer letter, right?

[00:50:55] Speaker 00:
What they indicated was the attached letter, the Hoyer letter, was sent to certain members responding to their concerns.

[00:51:04] Speaker 00:
The letter details most, but not all, of the operational and administrative changes the department implemented.

[00:51:10] Speaker 00:
So effectively, the department refused to provide this information, not only to the FOP at the time it was making the changes, but what you see.

[00:51:18] Speaker 06:
If you don't have enough evidence, the way to do that is to have a hearing.

[00:51:22] Speaker 06:
And the hearing officer can subpoena the stuff, or they can do requests for discovery.

[00:51:26] Speaker 06:
But you're saying, because we didn't have enough evidence, we should win?

[00:51:31] Speaker 00:
Under the law, the Capitol Police was required to respond and participate in this process.

[00:51:38] Speaker 00:
The Office of Congressional Workplace is offices investigation, and it failed to do that.

[00:51:43] Speaker 03:
And so are you also relying on this letter as evidence showing that the only notice provided was the Hoyer evidence since the only notice provided was the Hoyer letter because it's the only thing they identified.

[00:51:55] Speaker 00:
I'm actually were right relying on this letter for that purpose because one of two of the questions that were asked of the United States Capitol Police how are the emergency measures communicated to the Union and when were they communicated that's on a 380 if it was written pre please provide any documents supporting these communications and nothing was provided.

[00:52:14] Speaker 06:
Well I guess let me ask you about that because I think your friend when we asked him to call out specifics I may be wrong so I apologize.

[00:52:21] Speaker 06:
I think one of the specifics he called out was the grievance and arbitration.

[00:52:24] Speaker 00:
Yes ma'am.

[00:52:25] Speaker 06:
OK, so on 8468, we have an email from the union president saying, chief, with the department suspending the CBA, I'm respectfully requesting all 534th or 535th appeal grievance responses that would be to be extended 15 days after the CBA is once again restored.

[00:52:46] Speaker 06:
I don't want the department denying any grievance or appeals on time limits at the moment.

[00:52:50] Speaker 06:
Thanks, Gus.

[00:52:53] Speaker 06:
Chief Son responds, no problem.

[00:52:56] Speaker 06:
Since the CBA was suspended today, I will agree to stop the clock on the 15-day appeal and our grievance time limit and restart the clock when the CBA is reinstated.

[00:53:07] Speaker 06:
Have a good evening and stay safe.

[00:53:10] Speaker 06:
Chief, then, just to be clear and to clarify, so we are both on the same page.

[00:53:15] Speaker 06:
We are putting on hold, yadadadada.

[00:53:18] Speaker 06:
Yes ma'am.

[00:53:34] Speaker 06:
I got noticeably that they seem to have discussed this and reached agreement and the union got what it wanted.

[00:53:41] Speaker 06:
So is this, in your view, is this even arbitration issue at least off the table to make whole purposes or is there still a problem?

[00:53:49] Speaker 00:
Not necessarily.

[00:53:50] Speaker 00:
There is still a problem with it because that email correspondence I believe occurred on or around March 20th, the date that the collective bargaining agreement was suspended.

[00:53:59] Speaker 00:
The collective bargaining agreement was suspended indefinitely.

[00:54:02] Speaker 00:
And so while that was an immediate solution to that problem,

[00:54:06] Speaker 00:
The parties, because the Capitol Police did not provide the notice to the union of how long the CBA was going to be suspended.

[00:54:12] Speaker 06:
Well, they didn't know how long the CBA was going to be suspended.

[00:54:14] Speaker 00:
Exactly.

[00:54:15] Speaker 00:
But at that point, while that may have been an immediate issue, the CBA ended up being suspended for over a year.

[00:54:21] Speaker 00:
And the issue was never revisited.

[00:54:24] Speaker 00:
Because after that, the department took the position, as it did in the early stages of the ULP litigation, that it wasn't required to bargain with the union.

[00:54:32] Speaker 00:
That effectively, there was no relationship.

[00:54:36] Speaker 06:
And their deficiency, which the board focused on, which was lack of notice.

[00:54:41] Speaker 06:
So every month that the CBA wasn't going to be reinstated, they had to provide the union with notice that we're not reinstating grievance procedures for the union to be on notice that they weren't reinstating the grievance procedure?

[00:54:58] Speaker 00:
I don't know that it needed to be every month, ma'am.

[00:55:01] Speaker 00:
But yes, certainly there should have been an opportunity to revisit these issues.

[00:55:05] Speaker 00:
and the United States Capitol Police's unilateral determination that it didn't want to process anything like this.

[00:55:10] Speaker 03:
Was that presented below, by the way?

[00:55:11] Speaker 00:
I'm sorry?

[00:55:12] Speaker 03:
Was that argument that you just made presented below?

[00:55:14] Speaker 03:
I don't see it in the appeal brief.

[00:55:16] Speaker 00:
I don't believe it was.

[00:55:18] Speaker 03:
So can I ask a related question?

[00:55:19] Speaker 03:
I'm sorry.

[00:55:20] Speaker 03:
But if we think there's a genuine issue of material facts, because I'll tell you one thing I'm learning from this oral argument is that there's a lot of theories and facts that haven't really been fleshed out.

[00:55:31] Speaker 03:
If we think that neither party met its burden to show a lack of genuine issue of material effect, what relief is going to be requested and what should happen below?

[00:55:44] Speaker 00:
I think we have to, if you determine that there is a genuine issue of material fact, I think we have to go back and have the hearing on whether there was a violation of the statute, substantively with respect to this decision to suspend the CBA as well as on the notice question.

[00:56:01] Speaker 06:
Wait a minute, wait a minute, wait a minute.

[00:56:03] Speaker 06:
Well, that's up to the board.

[00:56:04] Speaker 06:
I mean, the board has decided that as long as, as I understand, the board decided rightly, for whatever reason,

[00:56:11] Speaker 06:
that as long as they've got this issue that they think has some merit, which is eyeing on impact and implementation bargaining, not of the end of the CVN, but of what changes were going on during the emergency, they don't have to reach that.

[00:56:27] Speaker 06:
So I don't know.

[00:56:29] Speaker 03:
Do you think they have to reach that issue for you to be entitled to any of the relief that's being requested to the complaint?

[00:56:35] Speaker 00:
I don't think that you do, ma'am.

[00:56:37] Speaker 06:
So they wouldn't necessarily or likely

[00:56:40] Speaker 06:
If they're going to remand on the issue of their decision, then it would deal exclusively with what they ruled on.

[00:56:47] Speaker 00:
Potentially, yes.

[00:56:48] Speaker 00:
But then it would go back to the hearing officer who as well issued a decision, potentially.

[00:56:54] Speaker 03:
Is there something about the make-hole remedy that would be somehow relates more to the suspension of the collective bargaining agreement than it would to notice?

[00:57:09] Speaker 00:
I think at this point, those issues can't be untangled from the union's perspective because without the notice, it's impossible to say what the union would have sought to bargain over and therefore what that make-hole remedy would be.

[00:57:23] Speaker 00:
Because again, the union did not know.

[00:57:25] Speaker 03:
I understand.

[00:57:26] Speaker 03:
I think it makes your make-hole remedy very difficult to achieve, whereas going right to the question of whether the CBA suspension violated the statute

[00:57:40] Speaker 03:
which is your main argument that was raised in the complaint, might be more tailored to the remedy sought.

[00:57:49] Speaker 03:
OK.

[00:57:49] Speaker 00:
Perhaps.

[00:57:50] Speaker 00:
Thank you.

[00:57:51] Speaker 00:
Thank you.

[00:57:54] Speaker 06:
All right.

[00:57:58] Speaker 06:
To make things even, we should probably give you 20 minutes.

[00:58:02] Speaker 06:
But we're not giving you that.

[00:58:03] Speaker 06:
Well, we still have three minutes of rebuttal.

[00:58:05] Speaker 06:
Thank you.

[00:58:14] Speaker 01:
We just heard a lot of argument about the suspension of the CBA and the grievance process and so on and so forth.

[00:58:21] Speaker 01:
But in all due respect, that's not at issue.

[00:58:24] Speaker 01:
I mean, the board here, as you say, elided that entire issue.

[00:58:29] Speaker 01:
But I do want to address one thing, that when you ask counsel for the general counsel to point out in the lawyer letter what was a change in working conditions that required bargaining, and the one he pointed to was telework.

[00:58:44] Speaker 01:
As I said earlier, the union doesn't represent every employee at the USCP.

[00:58:52] Speaker 01:
It represents about two-thirds of those employees, most of whom are sworn officers.

[00:58:57] Speaker 01:
Now, the officers' telework doesn't work for officers.

[00:59:02] Speaker 01:
They can't telework.

[00:59:03] Speaker 01:
You can't telework to a security station.

[00:59:05] Speaker 01:
You can't telework to guard somebody.

[00:59:08] Speaker 01:
So the court letter says, this is for all eligible employees.

[00:59:12] Speaker 01:
And where possible, we'll have telework.

[00:59:14] Speaker 01:
So before the union could argue that teleworking was a change in working conditions, it had to put forward evidence that some members of the union were required to telework.

[00:59:25] Speaker 01:
The record is empty.

[00:59:26] Speaker 01:
Nothing in the record about that.

[00:59:27] Speaker 06:
Aren't there lots of rules and regulations

[00:59:34] Speaker 06:
Anyway, all right, well, I would just urge the parties, assuming that we stick with the limits of the board's opinion, which got rid of the obligation of the collective bargaining agreement, and I and I would respect that.

[00:59:51] Speaker 06:
I would hope that this is, I'm not speaking as a judge here, but I would hope that if this has to go back for a hearing,

[00:59:59] Speaker 06:
doesn't seem like there's that much at stake.

[01:00:02] Speaker 06:
And we're dealing with things that happened four years ago, many of which were emergency procedures.

[01:00:07] Speaker 06:
So God willing, not likely to recur again.

[01:00:10] Speaker 06:
I would hope that there's some way that the parties can find to deal with this in a mediation form or in a settlement form to just resolve these issues better for them and better for everyone.

[01:00:25] Speaker 03:
Thank you.

[01:00:26] Speaker 03:
I want to ask you one question.

[01:00:28] Speaker 03:
I asked opposing counsel, so I want to make sure I ask you two.

[01:00:30] Speaker 03:
If we conclude that neither party has met its burden of showing a genuine issue of material fact, what relief is requested?

[01:00:37] Speaker 03:
What do you think will happen below?

[01:00:39] Speaker 03:
And will there be additional evidence offered?

[01:00:45] Speaker 03:
Or are we looking with their hearing involved the same exact record?

[01:00:50] Speaker 01:
Well, I think what should happen is it should be remanded to the board.

[01:00:56] Speaker 01:
Now, the board does not have a record on which it can resolve the factual issues that are in dispute.

[01:01:03] Speaker 01:
And I think the board is going to have to send it back to the hearing officer for a hearing.

[01:01:07] Speaker 03:
And so there would be a full-on trial with testimony and such?

[01:01:17] Speaker 01:
I'm not sure what was requested originally with the hearing officer.

[01:01:23] Speaker 01:
It was an evidentiary hearing on the summary judgment motion.

[01:01:26] Speaker 01:
And the hearing officer denied that because, in his view, facts were there on the issue of the suspension of the CBA.

[01:01:35] Speaker 01:
I think that that decision not to hold the hearing didn't include an analysis of whether there needed to be a hearing on the issue of notice.

[01:01:44] Speaker 01:
So I think that that may be what he said.

[01:01:48] Speaker 06:
Thank you very much.