United States Court of Appeals
FOR TH E D ISTR ICT OF C OL UM BIA CIR CU IT
Argued November 19, 2004 Decided January 14, 2005
No. 04-1021
AMERICAN FEDERATION OF STATE, COUNTY & MUNICIPAL
EMPLOY EES CAPITAL AREA COUNCIL 26,
PETITIONER
v.
FEDERAL LABOR RELATIONS AUTHORITY ,
RESPONDENT
On Petition for Review of an Order of the
Federal Labor Relations Authority
Sarah J. Starrett argued the cause for petitioner. With her
on the briefs was Barbara J. Kraft.
David M. Shewchuk, Attorney, Federal Labor Relations
Authority, argued the cause for respondent. With him on the
brief were David M. Smith, Solicitor, and William R. Tobey,
Deputy Solicitor.
Before: RANDOLPH, ROGERS , and ROBERTS, Circuit Judges.
Opinion for the Court filed by Circuit Judge ROBERTS.
ROBERTS, Circuit Judge: Petitioner American Federation of
State, County & Municipal Employees Council 26 (“the Union”)
challenges an order of the Federal Labor Relations Authority.
The Union charged the Federal Aviation Administration before
2
the FLRA with engaging in an unfair labor practice when it
refused to execute an agreement reached by the two parties. The
Authority dismissed the complaint, finding that the agreement
was only tentative and therefore not binding on the FAA. In its
petition for review, the Union argues that the Authority’s
decision (1) is unsupported by substantial evidence and (2)
represents an unexplained departure from Authority precedent.
We find that the decision is supported by substantial evidence
and is not inconsistent with the Authority case law to which the
Union directs us. We therefore deny the petition.
I.
This case arises out of negotiations over a collective
bargaining agreement covering four units of FAA employees in
Washington, D.C. The Union acted as the exclusive representa-
tive of the employees. The two sides began negotiations with
preliminary discussions in April 2000 continuing until February
2001, at which point they appeared to have settled on the terms
of an agreement. The heart of this dispute is whether the
agreement was final. The Union argues that it was and the FAA
was therefore legally bound to execute it. The FAA takes the
opposite view, asserting that the agreement was only tentative
pending approval by the Office of Management and Budget.
When the FAA refused to execute the agreement because
OMB had not yet approved it, the Union charged the FAA with
committing an unfair labor practice. It is an unfair labor
practice for an agency to refuse to negotiate with the representa-
tive of its employees in good faith. 5 U.S.C. § 7116(a)(5). This
duty includes the obligation, “if an agreement is reached, to
execute on the request of any party to the negotiation a written
document embodying the agreed terms, and to take such steps as
are necessary to implement such agreement.” Id. § 7114(b)(5).
The matter was referred to an administrative law judge for
a hearing. There, the two parties offered conflicting accounts of
3
their negotiations. The FAA claimed that it first informed the
Union in April 2000 that any agreement would not be final until
approved by OMB. Anthony Herman, one of the FAA’s
representatives, testified that he discussed the requirement of
OMB approval with the Union’s primary representative, Steven
Kreisberg, at their first preliminary meeting. The issue arose
again at the first bargaining session in July when Herman told
Union representatives that no agreement would be final until
approved by the Secretary of Transportation, OMB, and
Congress. According to Herman, the Union was well aware of
that condition. Union President Gerry McEntee, who was
present at the preliminary meeting, began referring to the issue
as “the OMB problem” and once offered to call President
Clinton if the problem ever became serious. Dept. of Transp.,
Fed. Aviation Admin. v. Am. Fed’n of State, County & Mun.
Employees Council 26, 59 F.L.R.A. 491, 497 (2003).
The Union offered a different version of events. Its
representatives say they never agreed to OMB approval as a
condition of final agreement. According to Union witnesses, the
issue was not even mentioned until the fall of 2000. During
intense negotiations over pay, they say, Herman told the Union
that he had multiple constituents to satisfy, including OMB.
Kreisberg then demanded that the FAA bring fully authorized
negotiators to the table. According to Union witnesses, Herman
responded that he needed prior OMB approval for offers
regarding pay, but had full authority to negotiate once he came
to the table. An FAA witness gave a similar account of this
incident, with an important difference: he stated that FAA
representatives made clear only that they had full authority to
negotiate a tentative agreement, but nothing would be final until
OMB approval.
Negotiations continued into January 2001. The issue of
OMB approval arose many times, but the parties disagree
sharply about the context. The Union maintains that the issue
4
was prior approval of pay offers; the FAA that approval was a
condition of final agreement. On January 19, the two sides —
with the outgoing Secretary of Transportation present —
reached agreement on pay increases. Officials from the FAA
insisted, however, that the details of the agreement not be
released until the incoming Secretary, Norman Mineta, was
briefed on the deal. Someone from the Union’s side apparently
let the matter slip, and Herman fired off an email reminding
Kreisberg that “there is no agreement until Secretary-designate
Minetta [sic] has been briefed.” FAA, 59 F.L.R.A. at 499. The
email did not mention OMB approval.
The issue of OMB approval came up several times as
negotiations neared their conclusion. FAA negotiators recall a
January 24 bargaining session at which Herman told the union:
“We’re very worried that we’re not going to get OMB approval.
It’s a new Administration. It’s a new time. We don’t know
what this OMB is going to say.” Kreisberg merely responded,
“I understand.” Id. at 500. Union witnesses testified that the
OMB issue arose when a bargaining session scheduled for
January 30 was postponed because FAA negotiators had not
received “external clearances.” Id. It was not clear at the time
what this meant. According to Union witnesses, several days
later Herman and Ray Thoman, another FAA representative,
informed the Union that the problem had been resolved,
specifically mentioning that they had received OMB approval,
and that they were ready to make an offer regarding pay.
The two sides reached agreement on the remaining terms on
February 5. Their apparent misunderstandings about OMB
approval then came to a head. Union witnesses say that Thoman
told them to delay announcing the agreement until OMB
approved, which he expected would take only a day. Kreisberg
objected to OMB approval but agreed nevertheless to delay the
announcement. As it turned out, OMB consideration took
longer than anticipated. When no answer came the next day, the
5
Union proceeded with ratification. The final agreement was
submitted to a vote and approved by the membership on
February 21.
The same day, the two sides began an exchange of emails
about OMB approval. Herman emailed Kreisberg to remind him
that there was no final agreement until OMB approved.
Kreisberg responded that he objected to OMB having final
authority over the agreement. A subsequent email from
Kreisberg informed Herman that the agreement had been
ratified. Herman answered that he was “pleased” but that there
was no deal until OMB completed its review. Kreisberg again
objected.
On February 26, the Union sent a letter to Thoman and
Herman requesting execution of the agreement. Herman replied
that execution “would be inappropriate” because OMB had not
yet approved. The Union filed its unfair labor practice charge
with the FLRA on March 20. On May 9, a letter from Herman
informed the Union that OMB had declined to approve the deal.
After hearing the evidence, the ALJ concluded that the FAA
had not committed an unfair labor practice because final
agreement was premised on OMB approval. Her analysis
proceeded in two parts. First, she explained, under Authority
precedent, an “agreement” for purposes of section 7114(b)(5) is
“one in which authorized representatives of the parties come to
a meeting of the minds on the terms over which they have been
bargaining.” FAA, 59 F.L.R.A. at 505. An agreement reached
by representatives who are not fully “authorized” is therefore
not final and need not be executed. Second, she considered
whether the Union had waived its statutory right to deal with
authorized representatives of the FAA. This right is found in the
duty of good faith, which includes the obligation “to be repre-
sented at the negotiations by duly authorized representatives
prepared to discuss and negotiate on any condition of employ-
ment.” 5 U.S.C. § 7114(b)(2). A union may waive this right,
6
the ALJ reasoned, but to be valid, any waiver must be clear and
unmistakable.
Applying this framework, the ALJ found that the FAA’s
negotiators were not “authorized” within the meaning of the
statute, but that the Union had waived its right to have such
negotiators. The FAA had “clearly set forth its position on
OMB approval during the negotiations.” FAA, 59 F.L.R.A. at
506. The judge credited FAA representatives Herman and
Thoman, finding their testimony “consistent and logical within
the time frame of extended negotiations,” assigning particular
weight to Herman’s conversations with McEntee about “the
OMB problem.” Id. She also relied on evidence presented at
the hearing showing that negotiations between the FAA and
several other employee units were made contingent on OMB
approval. It was “difficult to believe” that the Union was not
aware of this. Id. On the issue of waiver, the ALJ found “that
the evidence establishes a clear and unmistakable waiver of the
Union’s statutory rights with regard to the [FAA] having
authorized representatives at the table.” Id.
The Authority partially affirmed the ALJ’s ruling. It found
that the record evidence supported “the [ALJ’s] finding that the
Union acquiesced in the requirement for OMB approval.” Id. at
493. The Authority declined, however, to address whether the
ALJ “failed to properly apply the law of waiver” or “whether the
[ALJ] erred in finding that there was no final agreement because
the Respondent’s representatives were not authorized to bar-
gain.” Id.
7
II.
Our review of the Authority’s order is limited to determin-
ing whether it is “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. §§ 706(2)(A),
7123(c); Nat’l Ass’n of Gov’t Employees v. FLRA, 363 F.3d 468,
474 (D.C. Cir. 2004). We are required to uphold the Authority’s
findings of fact if supported by substantial evidence “on the
record considered as a whole.” 5 U.S.C. § 7123(c). Under this
standard, the Authority’s judgments need not be right in our
eyes, but they must come with “relevant evidence as a reason-
able mind might accept as adequate to support a conclusion.”
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938);
Thomas v. NLRB, 213 F.3d 651, 657 (D.C. Cir. 2000). We are
furthermore barred from considering any objection by the Union
that was not urged before the Authority “unless the failure or
neglect to urge the objection is excused because of extraordinary
circumstances.” 5 U.S.C. § 7123(c); see EEOC v. FLRA, 476
U.S. 19, 23–24 (1986) (per curiam); Nat’l Ass’n of Gov’t
Employees, 363 F.3d at 475.
The Union begins by arguing that the Authority lacked
substantial evidence to support its conclusions. In particular, it
contends that there was insufficient evidence that the FAA made
the OMB approval requirement plain or that the Union had
acquiesced in any such condition.
We think that the Authority’s decision has sufficient
support in the record. The evidence placed it in a difficult
position: the two sides’ versions of events were plainly inconsis-
tent. See FAA, 59 F.L.R.A. at 505 (“Although the witnesses for
both parties were clearly at the same negotiations, which lasted
a period of several months, there is no similarity with regard to
the OMB approval issue.”). The FAA says that it brought up the
issue of OMB approval in its very first meeting with the Union;
the Union says it was not raised until the fall, several months
after negotiations began. Even where there is agreement that
8
OMB approval was raised, the context is disputed. In the
Union’s view, the issue was approval of FAA offers; in the
FAA’s view, it was approval of the final agreement.
The Authority’s decision thus hinged on which version of
events it found more credible. We normally accord substantial
deference to such determinations unless they are “‘hopelessly
incredible,’ ‘self-contradictory,’ or ‘patently unsupportable.’ ”
United Servs. Auto. Ass’n v. NLRB, 387 F.3d 908, 913 (D.C. Cir.
2004); see also Nat’l Ass’n of Gov’t Employees v. FLRA, 770
F.2d 1223, 1226 (D.C. Cir. 1985). Here, the Authority expressly
relied on the ALJ’s decision to credit the testimony of FAA
representatives Herman and Thoman. The ALJ found their
testimony “consistent and logical within the time frame of the
extended negotiations.” FAA, 59 F.L.R.A. at 506. She based
this determination, in part, on testimony concerning Union
President McEntee’s references early in the negotiations to “the
OMB problem.” Id. McEntee himself did not appear at the
hearing, and the Union did not deny Herman’s testimony on this
point. We find nothing “unsupportable” in the Authority’s
decision to credit the testimony of the FAA witnesses.
The Union nevertheless points to two aspects of the record
that it believes undermine the Authority’s ruling. 1 First, it cites
“undisputed” testimony that, during a bargaining session in the
1
The Union focuses much of its argument on the ALJ’s supposed
factual findings, which in its view contradict the Authority’s conclu-
sions. It cites, for example, the ALJ’s finding that “[t]he Union never
agreed that OMB approval of the agreement would be all right.” Pet.
Br. at 17. On its face, of course, this statement seems to do consider-
able damage to the Authority’s ruling. It is explained, however, by the
(adm ittedly confusing) way in which the ALJ presents the facts in her
opinion, as the Authority points out. See Resp. Br. at 17–18. The
“Statement of Facts” section does not lay out the ALJ’s findings —
those appear in the “Analysis and Conclusion” section — but only
summ arizes the testimony of each side’s witnesses.
9
fall of 2000, Kreisberg angrily demanded that the FAA bring
fully authorized negotiators to the table. See Pet. Br. at 17. Yet
this event, too — like much else — is a subject of disagreement.
The Union contends that Kreisberg’s objection led to assurances
from Herman and Thoman that they had authority to reach a
final agreement and needed OMB approval only prior to making
offers. Herman and Thoman insist that they promised no more
than full authority to negotiate a tentative agreement. The ALJ
resolved these conflicting accounts by crediting one side’s
version over the other’s, and we have no basis for faulting that
determination.
Second, the Union suggests that Herman’s January 23, 2001
email and a handwritten notation accompanying a pay agree-
ment from the same time period demonstrate that the only
condition of final agreement was review by the Secretary. The
absence of a mention of OMB in either document, the Union
argues, shows that final agreement was not conditioned on OMB
approval.
We do not find this contention a sufficient basis for
overturning the FLRA decision. First, the handwritten notation
is hardly the sort of evidence that would lead us to disturb the
Authority’s factual findings. It shows only a sentence, crossed-
out, conditioning the agreement on the Secretary’s approval —
too inscrutable to invite any obvious inferences. The email from
Herman offers more, but not enough. It does state, with
reference to articles regarding pay, that “there is no agreement
until Secretary-designate [Mineta] has been briefed.” Herman
Email, Jan. 23, 2001. But the email does not make clear that the
“agreement” it refers to is anything more than the usual (in the
FAA’s view) tentative agreement reached by the parties at the
bargaining table; nor does it rule out OMB approval as a
condition of a final agreement. Cf. Chevron U.S.A. Inc. v.
Echazabal, 536 U.S. 73, 81 (2002) (canon of expressio unius
“depends on identifying a series of two or more terms or things
10
that should be understood to go hand in hand, which is abridged
in circumstances supporting a sensible inference that the term
left out must have been meant to be excluded”). It does not,
standing alone, undermine the other evidence before the ALJ.
Finally, the Union urges that the Authority lacks substantial
evidence for the finding that OMB actually rejected the agree-
ment.2 It relies on a draft email from an OMB official stating
that the “final decision of whether to enter into the agreement
rested with the FAA’s management.” Oliver Email, July 20,
2001. The Authority’s principal response is that, since the final
agreement was conditioned on OMB approval, the issue is not
whether OMB rejected the agreement but only whether it ever
approved it. That may be, but we need not resolve the issue. As
the Authority points out, Herman testified that he was there in
person when OMB called to reject the agreement. This evidence
adequately supports the finding that OMB rejected the agree-
ment.
III.
The Union’s remaining argument is of a different kind. It
contends that the Authority departed from its own precedent
without explanation when it found that “the Union ‘acquiesced’
in the waiver of its statutory rights but fail[ed] to find that the
Union ‘waived’ those rights.” Pet. Br. at 27. This argument
invokes an important principle in our review of agency action:
reasoned decision-making demands “treating like cases alike.”
2
Normally, when the two sides reached agreement on specific
provisions, they initialed them to indicate that they had completed
discussion on those issues. Because the two sides had reached an
agreement over pay at an awkward time — just days before a new
Adm inistration was to take office — the FAA requested that the
details not be released until the incoming S ecretary-designate had been
briefed. It was one Union official’s disregard of this request that
prompted H erman’s email.
11
Envtl. Action v. FERC, 996 F.2d 401, 412 (D.C. Cir. 1993). An
agency is free to change course, but when it does, it must
provide “a reasoned analysis indicating that prior policies and
standards are being deliberately changed, not casually ignored.”
Nat’l Fed’n of Fed. Employees v. FLRA, 369 F.3d 548, 553
(D.C. Cir. 2004); Greater Boston Television Corp. v. FCC, 444
F.2d 841, 852 (D.C. Cir. 1970).
The sole issue here is whether the Authority did, in fact,
depart from its precedent. The Union argues that under Author-
ity precedent the issues of waiver and acquiescence are “inextri-
cably intertwined.” Reply Br. at 15. Mere acquiescence, on this
view, does not satisfy the heightened standard for finding a
waiver of the Union’s right under 5 U.S.C. § 7114(b)(2) to
negotiate with duly authorized representatives of the FAA. The
Authority’s view differs so greatly that the parties hardly join
issue here. Its order declines to address the subject of waiver,
viewing it as irrelevant to the decision where a mere finding of
acquiescence would suffice. Parties to a labor negotiation, in its
view, are free to set conditions of final agreement without
implicating the rigorous waiver standard. Furthermore, the
Authority claims, the issue of waiver is “not a part of this case”
because it was not part of the unfair labor practice complaint
filed with the Authority.3
The crux of the dispute, then, is over the place of the waiver
standard in the Authority’s case law. If, under the Authority’s
precedents, the Union need only acquiesce to the condition of
OMB approval, then waiver is irrelevant to the Authority’s
ruling. If, however, the Authority’s precedents mandate the
3
In fact, the complaint specifically states: “Herman and T homan
were the chief negotiators for the Respondent during the negotiations
. . . and had full authority to negotiate a collective bargaining
agreement on behalf of the Respondent.” Unfair Labor Practice
Complaint ¶ 14.
12
Union must first clearly and unmistakably waive its statutory
right under section 7114(b)(2) for a condition such as OMB
approval to be valid, then the Authority was required to address
the issue in its ruling.
The Union cites four Authority cases for its view that
waiver and acquiescence are “intertwined,” none of which, in
the end, says what the Union needs them to say. See Pet. Br. at
25; Reply Br. at 18. Three of these cases stand for no more than
the proposition that a party to a labor negotiation must notify the
other side of any limitations on its representatives’ authority for
those limitations to be effective. See Dept. of Transp., Fed.
Aviation Admin., Standiford Air Traffic Control Tower v. Nat’l
Air Traffic Controllers Ass’n, 53 F.L.R.A. 312, 319–20 (1997)
(agreement found where employer representative “never in-
formed” union that agreement would be merely tentative); Nat’l
Council of Soc. Sec. Admin. Field Operations Locals v. Lepore,
21 F.L.R.A. 319, 331 (1986) (agreement found where union did
not show that agency had “prior knowledge” of restrictions on
union’s representative); Long Beach Naval Shipyard v. Fed.
Employees Metal Trades Council, 7 F.L.R.A. 102, 113 (1981)
(agreement found where employer representative “never
mentioned any limitations on his authority”). We find no
suggestion in any of these cases that this notice requirement is
equivalent to the waiver standard.
The fourth case cited by the Union offers still greater
support for the Authority’s ruling. In Internal Revenue Service,
Brooklyn District v. National Treasury Employees Union, 23
F.L.R.A. 63 (1986), the union charged the Internal Revenue
Service (IRS), as here, with failing to execute a final agreement.
The IRS answered that it was not bound because its representa-
tive only had authority to reach a tentative agreement. The ALJ
agreed, finding that IRS representatives told the union of their
limited authority at the outset of negotiations. Id. at 84.
Nevertheless, she proceeded to apply the waiver standard and
13
determined that the IRS, while not bound by the agreement, had
violated its duty of good faith under section 7116(a)(5) by
failing to send authorized representatives to the negotiations.
Both holdings were affirmed by the Authority.
Under Brooklyn District, waiver is plainly distinct from
“notice” or “acquiescence.” The first applies to the statutory
right, under section 7114(b)(2), to bargain with duly authorized
representatives; the second applies where the ultimate issue is
the duty to execute an agreement under section 7114(b)(5). This
division of labor hurts the Union because the sole issue in this
dispute is whether FAA failed to execute a final agreement,
which would not implicate the waiver standard. In short, the
Union cannot argue that the Authority’s refusal to apply the
waiver standard is a departure from any of the Authority
precedents it cites.
There is a 1992 Authority decision that offers some support
for the view that the waiver standard should be applied even
where the charge is failure to execute. In Department of Navy,
Portsmouth Naval Shipyard v. Federal Employees Metal Trades
Council, 44 F.L.R.A. 205 (1992), the union charged the shipyard
with failing to execute a final agreement after representatives for
both sides agreed to terms at the bargaining table. The ALJ
found that the agreement was not sufficiently final to trigger an
obligation to execute under section 7114(b)(5) because the
practice at the shipyard — which the union’s representative
“knew, or should have known” — was that no agreement was
final until it was reviewed by the shipyard’s employee relations
division and signed by the appropriate official. Portsmouth, 44
F.L.R.A. at 215.
While the ALJ did not apply the waiver standard in reaching
this conclusion, the Authority evidently felt compelled to do so.
It noted that
14
the [ALJ] did not explicitly state whether the practice .
. . constitutes a clear and unmistakable waiver by the
parties of their right under section 7114 (b)(2) of the
Statute to have the other party send fully authorized
representatives to the bargaining table.
Id. at 206–07. Having then proceeded to apply the waiver
standard, the Authority concluded:
Because we find that the parties clearly and unmistak-
ably waived their right under section 7114(b)(2) of the
Statute by virtue of their practice, as discussed above,
we agree with the [ALJ] that the oral agreement reached
at the end of the third bargaining session was only “a
tentative agreement” subject to review and approval by
both parties.
Id. at 208.
It could reasonably be argued that the Authority’s
reasoning in Portsmouth is at odds with the Authority’s order in
the case before us. Portsmouth suggests that the waiver
standard should apply even in cases, like this one, brought under
section 7114(b)(5) for failure to execute an agreement. Indeed,
Portsmouth appears to leave little room for the acquiescence
standard at all, but only for one standard: clear and unmistakable
waiver. The order before us seems to take a different approach.
It finds acquiescence while expressly declining to address the
issue of waiver. The two are therefore treated by the Authority
as distinct standards, with only the less stringent acquiescence
standard applicable where the issue is failure to execute a final
agreement — a conclusion consistent with Brooklyn District, but
a departure from the more recent Portsmouth for which the
present order provides no explanation. See Ramaprakash v.
FAA, 346 F.3d 1121, 1125 (D.C. Cir. 2003) (“An agency’s
failure to come to grips with conflicting precedent constitutes an
15
inexcusable departure from the essential requirement of rea-
soned decision making.” (internal quotation marks omitted)).
But this is not the argument made by the Union before
this court or, for that matter, before the Authority. At no time
does the Union ever suggest that Portsmouth was inconsistent
with the Authority’s ruling. In its briefs to us, it cites
Portsmouth once, and only for the uncontested proposition that
an agency is required by statute to execute a final agreement.
See Pet. Br. at 27–28. Pressed at oral argument, counsel for the
Union in fact appeared to acknowledge that waiver and acquies-
cence were distinct standards and that both were at issue — a
striking admission given that the ALJ’s opinion is not at all clear
on this point and relied heavily on Portsmouth for its reasoning. 4
See Oral Arg. Tr. at 3:44–:48 (“the ALJ actually had found that
there was both acquiescence and waiver”). The Union pro-
ceeded in a similar fashion before the Authority, citing
Portsmouth three times, none relating to the applicability of the
waiver standard. Instead, as we have noted, supra at 12–13, it
points us — as it did the Authority — to several cases that are
consistent with the Authority’s order and require no explanation.
We find therefore that we have no basis on which to
disturb the Authority’s ruling. Two considerations lead us to
this conclusion. The first follows from the familiar rule that we
generally will not consider arguments not sufficiently raised by
the parties. See Barr v. Clinton, 370 F.3d 1196, 1204 (D.C. Cir.
2004); Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983).
A party arguing that an agency has departed from its precedent
without explanation should, at a minimum, direct the court to the
relevant precedent and explain how it is inconsistent with the
4
Although the ALJ opinion cites Portsmouth only once, several
paragraphs of its legal analysis are borrowed verbatim from
Portsmouth, including some of the language qu oted above. Com pare
FAA, 59 F.L.R.A. at 505, with Portsmouth, 44 F.L.R.A. at 206–07.
16
agency’s ruling. Imprecise charges of inconsistency, brought in
the hope that an appellate court will uncover an agency prece-
dent to support them, will not do.
The second consideration is jurisdictional, and therefore
more serious. Our jurisdiction to review the Authority’s
decisions does not extend to an “objection that has not been
urged before the Authority.” 5 U.S.C. § 7123(c); EEOC, 476
U.S. at 23 (Court of Appeals is “without jurisdiction to consider
an issue not raised before the Board if the failure to do so is not
excused by extraordinary circumstances” (internal quotation
marks omitted)). Neither the Union’s brief to the Authority nor
its post-hearing brief to the ALJ argued that Portsmouth
required application of the waiver standard. We may not,
therefore, review the Authority’s judgment on this ground. The
FLRA is the expert on labor relations in the federal government;
it is statutorily entitled to first crack at arguments about how to
exercise its authority.
For the reasons stated, the petition for review is denied.