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55 FLRA No. 193
PANAMA AREA MARITIME/METAL TRADES COUNCIL, AFL-CIO (M/MTC)
PANAMA CANAL COMMISSION
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.
Decision by Member Wasserman for the Authority.
I. Statement of the Case
This matter is before the Authority on an exception to an interest arbitration award of Arbitrator Donald A. Anderson filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (Statute) and part 2425 of the Authority's regulations. The Agency filed an opposition to the Union's exception.
The Arbitrator resolved the parties' negotiation impasse over pay rates for apprentices by ordering adoption of the Agency's proposal. We conclude that the Union's exception is not properly before the Authority. Accordingly, we dismiss the Union's exception.
II. Background and Arbitrator's Award
The Agency proposed a change in the wage rates paid to apprentices. The parties were unable to reach agreement, and the issue was submitted to interest arbitration pursuant to the parties' negotiated impasse resolution procedure (NIRP). The Arbitrator resolved the impasse by ordering adoption of the Agency's "last best offer."
III. Positions of the Parties
A. Union's Exception
The Union contends that the award is contrary to regulation. The Union maintains that under 29 C.F.R. § 29.5, apprentice programs must provide a progressively increasing schedule of wages. The Union argues that this requirement applies to the Agency and that the Agency's "last best offer" did not provide for such an increase. Exceptions at 3. The Union asserts that consequently, the Arbitrator's award ordering adoption of the Agency's proposed schedule of wages is unlawful.
B. Agency's Opposition
The Agency first contends that the Authority has no jurisdiction under section 7122(a) of the Statute to resolve the Union's exception. The Agency maintains that the award resulted from interest arbitration under the Panama Canal Act of 1979 (22 U.S.C. § 3701(c)(2)(A)) and the parties' NIRP, rather than the Statute, and that there is no authority for the filing of exceptions to interest arbitration awards under either section 3701 or the NIRP. The Agency also argues that there is no authority for filing exceptions to this award because the award was not the result of interest arbitration conducted under section 7119(b)(2) of the Statute. Consequently, the Agency contends that the Authority should dismiss the exception for lack of jurisdiction.
On the merits, the Agency contends that the Union has failed to establish that the award is deficient. The Agency argues that the exception should be barred by section 2429.5 of the Authority's regulations because the Union never raised the issue of the applicability of 29 C.F.R. § 29.5 before the Arbitrator. In addition, the Agency argues that in any event, the exception should be denied either on the basis that the regulation does not apply to the Agency or that the requirement of a progressively increasing schedule of wages is not mandatory.
IV. Order to Show Cause
In view of the Agency's argument that the Authority lacked jurisdiction to resolve the Union's exception, the Union was ordered to show cause why its exception should not be dismissed. In its response, the Union contends that the Authority should assert jurisdiction because neither section 3701 nor the NIRP prohibits the filing of exceptions to interest arbitration awards. The Union also argues that the Authority's approach to permitting exceptions to be filed to awards that are the result of interest arbitration conducted under section 7119(b)(2) supports jurisdiction in this case. The Union maintains that because the Arbitrator's decision is a final resolution of the impasse, interest arbitration under the NIRP closely resembles interest arbitration conducted under section 7119(b)(2) and exceptions should be permitted. [ v55 p1200 ]
V. Analysis and Conclusions
Assuming, without deciding, that the Authority has jurisdiction to consider the Union's exception, we find that the exception is not properly before the Authority. Under section 2429.5 of the Authority's Regulations, the Authority will not consider issues that could have been, but were not, raised before the arbitrator. See, e.g., U.S. Department of the Interior, National Park Service, Golden Gate National Recreation Area, San Francisco, California and Laborers' International Union of North America, Local 1276, 55 FLRA 193, 195 (1999). The Agency contends that the issue of 29 C.F.R. § 29.5 was never raised to the Arbitrator. We find no indication in the record that the Union argued to the Arbitrator, as it has in its exception, that the Agency's "last best offer" was unlawful under 29 C.F.R. § 29.5. As this issue relates to the Agency's "last best offer," it clearly could, and should, have been presented to the Arbitrator. Accordingly, we dismiss this exception because we are barred from considering it by section 2429.5 of our Regulations. See id. at 195.
The Union's exception is dismissed.