concurring in the judgment in part and dissenting in part:
I agree with the result in No. 85-1420, Overseas Education Association, et al. (OEA), but my reasoning, both on jurisdiction and as to the merits, differs from that of the majority. In No. 85-1753, National Treasury Employees Union (NTEU), I would hold that this court has jurisdiction and therefore I go on to discuss the merits.
L
Jurisdiction
The Federal Labor Relations Authority (Authority or FLRA) filed motions to dismiss in both cases on the ground that this court lacks subject matter jurisdiction over the petitions for review under § 7123 of the Federal Service Labor-Management Relations Act. That provision, which sets forth the exclusive scheme for judicial review of FLRA orders, declares in pertinent part:
(a) Any person aggrieved by any final order of the Authority other than an order under—
(1) section 7122 of this title (involving an award of an arbitrator), unless the order involves an unfair labor practice under section 71181 of this title * * * *, may, during the 60-day period beginning on the date on which the order was issued, institute an action for judicial review of the Authority’s order in the United States court of appeals in the circuit in which the person resides or transacts business or in *346the United States Court of Appeals for the District of Columbia.
(Emphasis added.)
Thus, “unless the [Authority’s] order involves an unfair labor practice under section 711[6],” an FLRA decision reviewing an arbitration award is immune from judicial review. The Authority’s argument is that this immunity extends to both FLRA decisions challenged in the two review petitions now before us. The FLRA concedes that each grievance could plainly have alleged a statutory unfair labor practice under § 7116. However, the Authority characterizes its decision in each case as one “involving an arbitration award in which the grievance alleged only violations of provisions of the parties’ [collective bargaining] agreement.” This pleading failure, the FLRA concludes, is sufficient to deprive us of jurisdiction. I disagree. In my view, Congress’ reference in § 7123 to a case involving “an unfair labor practice under section 711[6]” includes both one involving a direct invocation of and direct reference to a statutory unfair labor practice (as specified in § 7116) and also a case involving invocation of and reference to an equivalent provision of a collective bargaining agreement mirroring one or more of the statutory unfair labor practices of § 7116. Violation of that type of collective bargaining provision is commonly called an “unfair labor practice.”
To me, the reference in § 7123 to § 7116 serves (with respect to collective bargaining agreements) simply to delimit the kinds of clauses embodied in collective bargaining agreements which Congress desired to characterize as leading to “unfair labor practices” subject to judicial review. Not just anything can be ¡designated an “unfair labor practice” by the collective bargaining agreement. Congress specially singled out (in cases decided by arbitration) true unfair labor practices as defined by § 7116 as eligible for judicial review, and to me the Act does not discriminate between those disputes expressly brought as statutory unfair labor practices and those brought directly under parallel and equivalent provisions of collective bargaining agreements. It is the content of the unfair labor practice that Congress decided to submit to court review, not the label attached to it (statutory or contractual).2 In particular, I stress that I do not believe that this court has jurisdiction simply because the grievance could have been stated as an unfair labor practice; my position is that, for jurisdiction to exist, the grievance must in fact track and parallel the unfair labor practices spelled out in § 7116. That is the exact trigger opening this court to an appeal. So long as the contract provision involved (in the grievance) mirrors and reflects a statutory unfair labor practice, I can see no reason why Congress would have wished to treat them differently with respect to review by a court of appeals.
In support of its theory of nonreviewability, the FLRA cites three cases from other circuits. Principal reliance is placed on American Fed’n of Gov’t Employees v. Federal Labor Rel. Auth., 675 F.2d 612 (4th Cir.1982) (AFGE). That court framed the dispositive issue as “whether the [Authority’s] order ... involved an unfair labor practice under § 7116,” and concluded “[i]f it did then we have jurisdiction to reach the merits; if it did not, then jurisdiction is lacking.” Id. at 613. For reasons which distinguish AFGE from the cases before us, the court held that it lacked jurisdiction. In AFGE, neither the petitioner union nor the arbitrator adverted to any violation of § 7116 or any comparable provision of the collective bargaining agreement. To the contrary, “the union invoked the grievance *347procedure and arbitration on an entirely different theory.” 675 F.2d at 613.3
Conversely, in the Overseas Education Association case (OEA), the Authority reversed the arbitration award because it insisted that the earlier-filed unfair labor practice charge and the grievance involved the same issue, namely “whether the Activity’s actions were motivated by consideration of the grievant’s union activities in violation, either directly or derivatively, of employees’ rights under the Statute.” Indeed, the FLRA admitted as much when it set aside the arbitrator’s award as “contrary to section 7116(d),” thereby denying Schussel a “second bite of the apple.” In seeking to slam shut the door to judicial review, the Authority asks this court to embrace a Catch-22. The Authority reversed the arbitrator’s decision because it ostensibly involved the same unfair labor •practice previously investigated. Now, it urges this court to deny judicial review on the ground that the arbitration case did not involve an unfair labor practice. The Authority cannot have it both ways.
Similarly, there are significant distinctions between AFGE and the case involving National Treasury Employee’s Union (NTEU). Petitioners in NTEU presented the unfair labor practice as a violation of Article 37 of the parties’ collective bargaining agreement, the language of which explicitly mirrors and reflects the § 7106(b) requirement that the impact and implementation of agency decisions made pursuant to management rights are negotiable. Because Article 37 and § 7106(b) impose identical duties, I think that an Article 37 violation necessarily involves an unfair labor practice. Granting the Authority’s motion to dismiss in this case would be tantamount to reading into § 7123(a) a requirement that a formal statutory unfair labor practice charge be filed with the arbitrator in order to preserve the right to judicial review. As I see it, the only predicate to review imposed by the plain language of the statute is that the FLRA order must “involve[ ] an unfair labor practice” of the very type listed in § 7116.4
Accordingly, I would hold that an unfair labor practice can be presented to an arbitrator in one of two ways: (1) as an express violation of § 7116(a); or (2) as a violation of a labor contract article that imposes the same duties on the agency as are required by the unfair labor practice sections of the statute (§§ 7116(a) (1)-(8)), i.e., a parallel or tracking provision of the bargaining agreement. No talismanic incantation of the specific statutory provision alleged to have been violated is required where, as here, the contract article violation clearly covers and embraces an unfair labor practice as defined in the statute. Regardless of whether the identical unfair labor practice charge is first raised under the contract or under the statute, the same legal and factual issues arise.
In these two cases the specific allegations encompassed a violation of both the contract and the statute. As I have pointed out, the precise issue in AFGE — whether a contractual undertaking to negotiate had been superseded by a later Congressional enactment — distinguishes it from the cases before us. 675 F.2d at 613-14. The question in AFGE was whether there was a duty to negotiate, “not a claim that an unquestioned duty to negotiate had been breached.” Id. at 614. See n. 3, supra. Both cases at bar, on the other hand, involve “unquestioned dut[ies].” In OEA, that duty — not to subject an employee to reprisals because of his involvement in union activities — is explicitly embodied in strikingly similar terms in both the parties’ agreement and the governing statute.5 In *348NTEU, management’s duty — to negotiate the impact and implementation of agency decisions made pursuant to management rights — is likewise embodied in the parties’ agreement and the governing statute.6 In both cases, it would seem, the collective bargaining provisions were drafted to mirror their statutory counterparts.
In United States Marshals Serv. v. Federal Labor Rel. Auth., 708 F.2d 1417 (9th Cir.1983), the Ninth Circuit held that it lacked jurisdiction to review an FLRA determination except where “an unfair labor practice is either an explicit or a necessary ground for the final order issued by the Authority” or when “an unfair labor practice is necessarily implicated.” Id. at 1420. There is no conflict between that holding and my view. When the Authority set aside the arbitrator’s award in OEA on the ground that the grievance was barred by the earlier-filed unfair labor practice charge, it “necessarily implicated” the unfair labor practice allegation. Similarly, the subject of the arbitration in NTEU was Customs’ failure to negotiate as required both by the parties’ agreement and by statute. Merely because the Authority set aside the arbitrator’s award as contrary to law does not alter the fact that failure to negotiate is a quintessential unfair labor practice under § 7116. That this unfair labor practice was “necessarily implicated” or “involved” (to use the § 7116 term) is abundantly clear from the transcript of the arbitration hearing, the parties’ post-hearing briefs, the arbitrator’s decision, and the Authority’s decision modifying the arbitrator’s award, all of which either specifically refer to or acknowledge the fact that the grievance involved an unfair labor practice.
Tonetti v. Federal Labor Rel. Auth., 776 F.2d 929 (11th Cir.1985), clearly did not at all involve an unfair labor practice as defined in § 7116 or in a comparable provision of a collective bargaining agreement; instead, it involved a simple disciplinary proceeding for being AWOL. Nor do I find helpful the Authority’s argument that both cases before us involve “pure grievances.” See Devine v. White, 697 F.2d 421 (D.C.Cir.1983). The ultimate issue is whether the Authority’s order “involves an unfair labor practice.”7 Thus, in proper cases, even “pure grievances” are subject to judicial review. Id. at 445-46.
On these grounds I would deny each motion to dismiss. Because of that view, I turn to the merits in both cases.
II.
Overseas Education Association — Merits
The arbitrator in OEA rejected the Department of Defense Dependents’ Schools’ (DODDS’) claim that, because Schussel *349filed an unfair labor practice charge under §§ 7116 and 7118 on December 11, 1981, § 7116(d) barred him from pressing the grievance he subsequently filed on March 26, 1982.8 However, the FLRA set aside the arbitrator’s award as “contrary to section 7116(d).” According to the Authority,
there was an election in this case in the discretion of the aggrieved party to raise the disputed matter under the unfair labor practice procedures. In this regard the clear purpose and effect of section 7116 (d) is to prevent relitigation of an issue in another forum after a choice of procedures in which to raise the issue has been made by the aggrieved party. Thus, the matter in dispute in this case was prohibited from being relitigated under the grievance procedure, and consequently the grievance before the Arbitrator was precluded by the Statute from consideration. For these reasons, the award is deficient as contrary to section 7116(d) of the Statute and is set aside. (Citations omitted.)
I agree that the purpose and effect of § 7116(d) is to prevent relitigation of an issue in a different forum. But the mere initial selection of a procedure in which to raise an issue does not necessarily constitute a binding selection. Schussel’s original unfair labor practice charge followed the procedures set forth in § 7118 of the Act. Under that provision, the FLRA general counsel investigates unfair labor practice charges to determine whether sufficient grounds exist for the issuance of a complaint. Only after a complaint is issued does a full hearing and adjudication ensue. When the FLRA. advised the union that there was insufficient evidence of an unfair labor practice, the union withdrew the charge. A complaint never issued and the statutory unfair labor practice charge was never adjudicated on the merits.
Moreover, as the arbitrator noted, § 105.-011 of the FLRA Case Handling Manual (Manual) provides that “a charging party may request withdrawal of a charge at any time.” This case involved a “solicited withdrawal,” described in § 105.013 of the Manual:
When the Regional Director determines that the filing requirements have not been met or that formal proceedings on the charge should not be instituted, the charging party should be given an opportunity to withdraw the charge voluntarily prior to dismissal of the charge. The charging party should be advised in detail of the reasons for the solicitation of the withdrawal.
Further, according to § 105.024, a pre-complaint withdrawal “is a disposition without prejudice” to the refiling of the same charge. Because the FLRA never reached a hearing or a determination on the merits regarding the statutory unfair labor practice, the § 7116 barrier to relitigation in a different forum is inapplicable. The FLRA’s improper invocation of § 7116, far from preventing Schussel from taking a “second bite at the apple,” effectively denied him his first bite. I would therefore reverse the Authority’s ruling that the initial unfair labor practice charge, withdrawn without prejudice after preliminary inquiry and before a complaint was issued, bars resort to the arbitration forum.9
III.
National Treasury Employees Union — Merits
In NTEU, the Authority sustained the arbitrator’s holding that the unilateral elimination of overtime assignments, without *350notification to, or negotiation with, the union, was illegal. Nonetheless, it reversed the arbitrator’s back pay award. According to FLRA,
after the duties of the affected Patrol Officers were restructured, their duty hours were administratively controllable rather than uncontrollable and they were no longer required to work substantial amounts of unscheduled overtime. Consequently, they were no longer authorized premium pay for administratively uncontrollable overtime under 5 U.S.C. § 5545(c)(2).
On appeal, NTEU argues that the arbitrator’s award satisfies the requirements of the Back Pay Act, 5 U.S.C. § 5596 (1982), and should be reinstated. The Authority’s position is that, to qualify for an award of back pay under the Back Pay Act, the union must satisfy both parts of a two-part -test. First, it must demonstrate that an employee has been affected by an unjustified or unwarranted personnel action. Second, the union must show that, but for the improper action, the employee would not have suffered a loss or reduction in pay, allowances, or differentials.10 Because the agency’s improper action in this case was its failure to engage in “impact and implementation” bargaining, the FLRA contends that the union has not, and indeed cannot, satisfy the “but for” component of the test. The Authority considers that, since it cannot be determined with any reasonable certainty what agreement the parties would have reached had bargaining taken place, “there is nothing in the record of this case, and only the sheerest speculation otherwise, to substantiate that bargaining would have precluded losses of pay experienced by the employees.”
This “insurmountable barrier” to back pay recovery (in “impact and implementation” cases) which had been erected by the FLRA was recently struck down by this court in Professional Airways Sys. Specialists v. Federal Labor Rel. Auth., 809 F.2d 855 (D.C.Cir.1987). In that decision, Judge Starr noted for the court that “under the guise of its ‘but for’ step, the Authority has established a per se rule against the award of back pay to remedy an ‘impact and implementation’ bargaining violation.” 809 F.2d at 858. Moreover, “where the agency’s improper action is failure to engage in ‘impact and implementation’ bargaining, the adversely affected employee will never be able to satisfy the FLRA’s ‘but for’ test.” Id. (emphasis in original).
What little outside precedent exists shows that an agency’s procedural violation can adversely injure affected employees and may warrant restitutionary relief, including back pay. See Ryder v. United States, 218 Ct.Cl. 289, 585 F.2d 482, 487-88 (1978); Camero v. United States, 179 Ct.Cl. 520, 375 F.2d 777 (1967). Nor does the fact that the agency had the right to change the Customs Patrol Officers’ (CPOs’) duty hours necessarily shield the agency from an award of back pay. As Professional Airways Sys. Specialists observed, “a procedural miscue by an agency enjoying broad substantive rights can trigger the full panoply of make-whole remedies, including back pay.” 809 F.2d at 859 n. 10. The holding in that case — that the Back Pay Act permits a back pay award to affected employees of an agency that has failed to engage in “impact and implementation” bargaining, so long as the employees meet the initial burden of establishing a causal nexus between the violation and the loss of pay — should dictate disposition of the NTEU case. I would remand to the FLRA for reconsideration of whether the union has met its burden of establishing a causal nexus between the failure to engage in “impact and implementation” bargaining and the CPOs’ loss of pay. On the remand I would direct, the FLRA should of course be mindful of the admonition in Professional Airways Sys. Specialists that, in applying its “but for” test,
*351the Authority is obliged to recognize the value, fundamental in law and common sense, of procedural integrity; specifically, the Authority must allow for the fact that it is, in the nature of things, highly difficult for an adversely affected employee to establish that bargaining which never occurred (by virtue of the employer-agency’s violation) would have prevented the loss of pay occasioned by the change.
809 F.2d at 859.
. As the court's opinion points out, the reference to "section 7118” is a misprint. The correct reference is to section 7116 which sets forth unfair labor practices under the statute. American Fed'n of Gov't Employees v. FLRA, 675 F.2d 612, 613 n. 2 (4th Cir.1982).
. I do not forget that in this Act Congress stated that collective bargaining "safeguards the public interest" and "contributes to the effective conduct of public business." 5 U.S.C. § 7101(a). Congress also provided expressly for arbitration under collective bargaining agreements. 5 U.S.C. §§ 7121(a)(1) and 7121(b)(2)(b). There is no indication in the legislative history that arbitrators’ decisions involving "unfair labor practices” are to be treated differently depending on the source of the "unfair labor practice.”
The legislative history of § 7123(a) throws little light on the precise coverage of cases in which the FLRA order "involves an unfair labor practice under section 711 [6] of this title,” but I am satisfied that that history does not suggest, let alone compel, the Authority’s reading.
.That "different theory” was "whether a contractual undertaking to negotiate had been superseded by a later Congressional enactment. The issue was one of negotiability and whether there was a duty to negotiate, not a claim that an unquestioned duty to negotiate had been breached.” 675 F.2d at 613-14.
. Under the Authority’s interpretation of § 7123(a), if employees do not redundantly grieve § 7116 of the statute, even though their collective bargaining agreement fully embraces § 7116 protections, they forfeit their right to judicial review.
. Article 2, Section 3(C) of the parties’ agreement provides that ”[e]ach teacher has the right, *348freely and without fear of penalty or reprisal, to form, join, and assist the [union] and shall be protected in the exercise of this right. Management shall ensure that teachers are apprised of their rights, and that no interference, restraint, coercion or discrimination is practiced within DODDS to discourage membership in the [union].” The statutory corollary, 5 U.S.C. § 7102, provides that "[e]ach employee shall have the right to form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal, and each employee shall be protected in the exercise of such right.” In turn, § 7116(a)(1) defines it as an unfair labor practice for an agency "to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter.”
. Article 37, Section 1(b) of the parties’ collective bargaining agreement states: "The Employer recognizes that the Union has the right to bargain over the procedures which the Employer will observe in exercising its management rights authority, and/or over appropriate arrangements for employees adversely affected by the exercise of the Employer’s management rights authorities.” The relevant statute, 5 U.S.C. § 7106(b), preserves the right of the agency and the union to negotiate "procedures which management officials of the agency will observe in exercising any authority under [§ 7106]’’ and "appropriate arrangements for employees adversely affected by the exercise of any authority under [§ 7106] by such management officials.” Moreover, § 7116(a)(5) identifies as an unfair labor practice the ”refus[al] to consult or negotiate in good faith with a labor organization as required by this chapter."
. The FLRA incorrectly asserts that the critical consideration is whether the Authority, in reviewing the arbitrator’s award in light of the exceptions before it, addressed whether the subject matter at issue constituted a statutory violation of § 7116(a) or (b). In my view, an FLRA order can "involve an unfair labor practice" without making specific reference to the statute.
. In pertinent part, § 7116(d) provides that "issues which can be raised under a grievance procedure may, in the discretion of the aggrieved party, be raised under the grievance procedure or as an unfair labor practice under this section, but not under both procedures (Emphasis added.)
. The arbitrator cited the following additional grounds in support of his decision upholding the arbitrability of the grievance: (1) the substantive incidents which triggered the unfair labor practice charge and the grievance are distinguishable; (2) the same party was not involved in both actions; and (3) the issue in the unfair labor practice charge was not the same as grieved upon. I need not, and do not, intimate any view as to the validity of any of these additional justifications.
. In the language of the Back Pay Act, an employee who is determined "to have been affected by an unjustified or unwarranted personnel action which has resulted in the withdrawal or reduction of all or part of the pay, allowanees, or differentials of the employee" is entitled to back pay in the amount that “the employee normally would have earned or received during the period if the personnel action had not occurred." 5 U.S.C. § 5596(b)(1).