as the authority one the authorities had and refusal to follow the steelworkers trilogy as laid out by the united states supreme court further i come to i come to let this court have it say on the practice known as are going to asian this is a practice that has affected the institution in the workers that i represent greatly and it's a practice that was explained in the briefs but for grabbing the city where the bureau of prisons takes teachers and turns them into maximum security prison guards and the like i think the st thing in the most important thing to address this morning is that this court does add jurisdiction to hear this  art the issue of the memorandum of understanding was brought before the arbitrator was addressed before the authority and the authorities the bounds of what do you owe he needs to be in order to come up with his for now but you did not term counsel you did not litigate this in in in allege an unfair labor practice before any arbitrary or correct we did not use the words unfair labor practice we used breach of the memorandum of understand now under the authority of precedent there can be two sorts of repudiation and explicit or implicit in this case it's the union's position that there is an implicit  authorities test for that is the nature of the violation and whether the violation goes to the heart of the party's negotiated agreement in this case u which is petitioners appendix page one hundred and ninety seven it was made after the union and the agency had collectively bargained their initial agreement and a number two of that e negotiate has been filed the agency and the union will mutually exchange proposals woman forty five dollars days if an issue of negotiable any is raised by the agency all in the exchange of proposals the agency will provide the the union at s c i am relying on this memorandum of understanding which was entered into between the parties attempted to raise the issue of augmentation when the agency but the agency did not follow this contract at all all they said was we are not going to negotiate they provided no baseball they provided no insights they did not follow this and when it gets to the nd branch of the thirty's test for article two of this imodium goes to the heart of the entire remit because without knowing what matters are on the table in order to negotiate according to the rules for the rest of the m o there is no logical way for the rest of the agreements you to exist and it's a well recognized canon of statutory and contractual interpretation hey this is been decided on separate independent grounds other than what was accepted to you by the agency and therefore this needs to be addressed the union cite this court's precedent and this court's holdings even as recently as the n l r b the case that came out a couple of days ago show us that this this was the ground similar in the private sector rely on the stuart trilogy me sco gar me and the supreme court have been very clear that if the arbitrator is even arguably the contract this is the deference owed to his decision and when you look at the authorities decision where they express lease a and then use this decision as precedent to continue to say that we don't owe the same amount of deference to an arbitrator because public sectors differ this is clearly in excess of their staff story over and by by doing that that wouldn't give this court jurisdiction to hear this it would also make their decision arbitrary and capricious because when you look at this court's ruling in national weather service this court was very clear to the authority as to what standard it must have blocked and it was a standard found in steel work so when you get past those two jurisdictional issues and i know i'm running a little short on time it was a point and you really get to the merits the authority then decides that a binding past practices can create a condition of employment which is a private sector labor law concept that has been around for forty or fifty years which all of the sudden led to the authority to pursue a faulty analysis of why the arbitrator's decision was not within the essence of the contract those are the main points that i want to make known over time merits of the case last jurisdiction for three reasons st the union has waived a number of the arguments that seeks to praying before this court and under section seven thousand one hundred and twenty three see those arguments are practice this decision does not involve an unfair labor practice and finally the union's efforts to invoke a read have asked like claim of jurisdiction or a terrorist action some large that in the customs service case  here even if the court reached the merits of this petition there is simply no to overturn the authorities decision that is the court has twice interpreted article eighteen income into the clear conclusion that it states that shift reassignments imposed changes are governed by article eighteen that is exactly what the union sought to negotiate over here and the only way the arbitrator could reach a decision that allowed or required that agency to bargain a new was to write an entirely new contract traill term into the parties agreement not interpret the agreement as it exists this is at the heart of an essence exception and that the reason the authority set aside this decision but looking st to some of the arguments that were brought up here again today union has simply not raised these unfair labor practices either at arbitration or before the authority  authority this is quite clear because as a union just pointed to one page before in petitioner's appendix on page one hundred and forty eight dollars it clearly the unionists clearly saying that the arbitrator found that the agency violated four provisions of the party's agreement and the local memorandum of understanding therefore it is quite clear both their understanding the agency's understanding the arbitrator understanding and the authorities understanding of that war was it was based purely on contractual violations this point even if the union could have been or successful although that is still doubtful by bringing an unfair labor practice claim such as repudiation it did not do so where there was no unfair labor practice to adjudicate before the arbitrator or the authority this decision is barred by section addressed in this case and we had jurisdiction and b a p one and b o p two nd you can talk to us a bit about why we don't have jurisdiction here when we did have jurisdiction there honor in those two cases you are talking about an unfair labor practice that is evident from the fact that the issue at stake in both cases was the application of the cup or by doctrine which is a doctrine that relates to unfair labor practice cases quote the authority did cite to the court's decision and both of those cases because particularly embarrassed presents to the court was explicit that this isn't just a nuance of unfair labor practice law this article is clear on its face what it means and what it covers and it needs to be given that effect and it chastise the authority for failing to understand and use that in a number of arbitration and awards that were reviewed between bureau one and bureau of prisons two that's the only reason it comes up in this case because the authority then goes on to explain that given this explicit and clear language in article eighteen the of the arbitrator's decision has to be based on his finding of a new contractual term which the arbitrator created based on past practices and then awarded the remedies that he did in the arbitration were based on that new contractual term this is as the court has as expressed in private sector with labor law cases a clear instance of the arbitrator dispensing his own brand of industrial justice departing entirely from the terms of the party's contract in writing his own and for that reason it had to be set aside for failing to drop the price of a minute returning again to some of the other issues that  party has raised here for example even this argument that the authority can't deviate in any way whatsoever from steelworkers is new and even though this is an issue that was an employee before the authorities decision the court has repeatedly held that parties need to file motions for reconsideration with the authority even to address to respond to arguments before they can bring their positions on those arguments to this court that didn't happen in this case and so again under and twenty three dollars a essentially the arguments that the union is now relying on to set aside the award are outside the sports jurisdiction but going more specifically to the heart of the issue here where  party's own efforts to raise you know he is after the arbitration are not sufficient that is important what is an essential and important is what is in the arbitration award and what is in the authorities decision and so for that reason the court has not does not have jurisdiction in this case even if there were some glancing references to unfair labor practices in the exceptions briefing they are not in the arbitration or air not in the authorities decision and there is no jurisdiction in this case would you distinguish the national weather service employees from two thousand and twenty yes your honor in national weather service the union characterized that same conduct both explicitly as an unfair labor practice when it brought its grievance to arbitration and as a contractual violation so although they were talking about was the exact same alleged wrongdoing by the agency th characterized it explicitly as both types of violations when the arbitrator found that there was a contractual violation but no unfair labor practice the union filed exceptions with that determination and the authority then decided whether or not the arbitrator was prepped on the unfair labor practice issue resulting in authority decision that addressed both contractual violations and unfair labor practices the union brought the case of the sport and the court said that  union brings to the court today are new in their briefs so the st time and thus also barred by statute from the sports jurisdiction finally even if the court were to reach the merits in this case there is simply no grounds to overturn the theories  it has correctly implemented the aspects of a sense exception that exists in the private sector it clearly did not deploy our from or say that it would no longer use still workers as a guide for these reasons there is no grounds for jurisdiction under leda or custom service where the statutes being interpreted apply to working conditions and they were applied reasonably as the authority has done throughout its history and not set aside the precedent undersea warfare pointed to that as an indignity that of an unfair labor practice being involved more a verb when you look at a separate independent grounds this case can be distinguished from he wanted me to be two on the facts that article twenty seven dollars the health and safety of workers and the memorandum of understanding which was entered into as far as steelworkers goes it's not the same for the public sector as it is the private sector all right thank you madam clerk if you call the next case