United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 22, 2021 Decided July 2, 2021

No. 20-1183

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 

3690,

PETITIONER

v.

FEDERAL LABOR RELATIONS AUTHORITY,

RESPONDENT

On Petition for Review of an Order

of the Federal Labor Relations Authority

Joshua Lee Davis argued the cause for petitioner. On the 

briefs was Jack K. Whitehead, Jr.

Sarah C. Blackadar, Attorney, Federal Labor Relations 

Authority, argued the cause for respondent. With her on the 

brief were Noah B. Peters, Solicitor, and Rebecca J. Osborne, 

Deputy Solicitor.

Before: HENDERSON, WILKINS and WALKER, Circuit 

Judges.

Opinion for the Court filed by Circuit Judge HENDERSON.

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KAREN LECRAFT HENDERSON, Circuit Judge: The United 

States Department of Justice Federal Bureau of Prisons Federal 

Correctional Institution Miami, Florida (FCI Miami) 

implemented a staffing practice without negotiating with the 

union representing the FCI Miami employees—the American 

Federation of Government Employees, Local 3690, AFL-CIO

(AFGE). AFGE filed a grievance and subsequently invoked 

arbitration; the arbitrator ruled in favor of AFGE. FCI Miami 

excepted to the arbitrator award with the Federal Labor 

Relations Authority (FLRA or Authority) and the Authority set 

aside the award in its entirety for failing to draw its essence 

from the collective bargaining agreement (Master Agreement) 

between the Federal Bureau of Prisons—including FCI 

Miami—and AFGE. AFGE petitions for review of the 

Authority decision. However, § 7123(a)(1) of the Federal 

Service Labor-Management Relations Statute (FSLMRS) 

allows for judicial review of an Authority decision arising from 

review of arbitral awards only if “the order involves an unfair 

labor practice.” 5 U.S.C. § 7123(a)(1). Because the Authority

decision does not “involve” an unfair labor practice, we lack 

jurisdiction to review the decision and accordingly dismiss 

AFGE’s petition. 

I. BACKGROUND

FCI Miami employees work in several roles and

departments, with the largest department being the Custody 

Department—staffed by “Custody” employees. Other 

departments are “Non-Custody” departments and are staffed by 

“Non-Custody” employees. Before 2016, when the Custody 

Department was short-staffed, FCI Miami either left positions 

in the Custody Department vacant or paid a Custody employee 

overtime. In early January 2016, FCI Miami notified AFGE

that it planned to start using Non-Custody employees to fill 

vacant Custody Department positions; it called the process 

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“augmentation.” AFGE shortly thereafter sought to negotiate

the matter but FCI Miami denied the request, telling AFGE that 

it had implemented augmentation in accord with Article 18 of 

the Master Agreement, which permits FCI Miami to change the 

shift or assignment of Custody and Non-Custody employees: 

in short, FCI Miami viewed augmentation as “reassignment.” 

After FCI Miami failed to negotiate regarding augmentation, 

AFGE filed a formal grievance, alleging that FCI Miami had 

violated both the Master Agreement and its past practices by 

implementing augmentation. FCI Miami responded that it had 

authority to institute augmentation under the Master 

Agreement and denied AFGE’s grievance. AFGE then 

invoked arbitration. 

The arbitrator concluded, in relevant part, that FCI Miami

had breached a binding past practice of non-augmentation and

violated several provisions of the Master Agreement—as well 

as a separate Memorandum of Understanding (MOU) between 

FCI Miami and AFGE—by implementing and failing to 

bargain over augmentation. Shortly thereafter, FCI Miami

filed exceptions to the arbitrator award with the Authority and 

AFGE filed an opposition to FCI Miami’s exceptions. The 

Authority—over a dissent—concluded that the arbitrator 

award failed to draw its essence from the parties’ agreement

because Article 18 of the Master Agreement unambiguously

“gives [FCI Miami] broad discretion to assign and reassign 

employees”—encompassing the practice of augmentation—

and set aside the award in its entirety. U.S. & Am. Fed’n of 

Gov’t Emps., 71 F.L.R.A. 660, 661–62 (2020).

1

 The Authority

1 Although FCI Miami filed several exceptions to the arbitrator

award, the Authority reached only the first exception because it 

concluded the award failed to draw its essence from the Master 

Agreement. Id. at 662 n.26. 

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majority also explained that the Steelworkers trilogy2 of 

Supreme Court cases did not require it “to ignore erroneous 

arbitral awards that run counter to the plain language, or 

judicial interpretations, of contractual provisions,” noting that 

the FSLMRS provision providing for the Authority’s review of 

arbitral awards allows the Authority to find such “awards

deficient ‘on other grounds similar to [not the same as] those 

applied by Federal courts in private sector [arbitrations].’” U.S. 

& Am. Fed’n of Gov’t Emps., 71 F.L.R.A. at 664 (alterations

and emphasis in original) (quoting 5 U.S.C. § 7122(a)(2)).

3

AFGE timely petitioned for review of the Authority decision. 

II. DISCUSSION

We lack jurisdiction to review the Authority decision

because it does not “involve[] an unfair labor practice.” 5 

U.S.C. § 7123(a)(1). The Congress provided “a two-track 

system” in the FSLMRS “for resolving labor disputes.” 

Overseas Educ. Ass’n v. FLRA (Overseas), 824 F.2d 61, 62 

2 United Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 

U.S. 593 (1960); United Steelworkers of Am. v. Warrior & Gulf 

Navigation Co., 363 U.S. 574 (1960); United Steelworkers of Am. v. 

Am. Mfg. Co., 363 U.S. 564 (1960).

3 Then-FLRA Member DuBester—now Chairman—dissented, 

arguing the majority improperly discounted the arbitrator’s finding 

of a past practice, incorrectly relied on Federal Bureau of Prisons v. 

FLRA (BOP I), 654 F.3d 91 (D.C. Cir. 2011), and United States

Department of Justice v. FLRA (BOP II), 875 F.3d 667 (D.C. Cir. 

2017), and erroneously distinguished and rejected the application of 

the Steelworkers trilogy to review of arbitral awards in the federal 

public sector. U.S. & Am. Fed’n of Gov’t Emps., 71 F.L.R.A. at 669–

76 (DuBester, dissenting). FLRA Member Abbott concurred, noting

he would have more definitively held that any earlier Authority

decisions, to the extent they “requir[ed] blind deference to erroneous 

arbitral determinations,” should not be followed. Id. at 667–68 

(Abbott, concurring). 

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(D.C. Cir. 1987). One track permits a party subjected to an 

unfair labor practice to file a charge with the Authority’s 

General Counsel, who investigates and determines whether to 

issue a complaint. Id. at 63 (citing 5 U.S.C. § 7118(a)). If a 

complaint issues, the Authority adjudicates the matter and its 

decision is subject to judicial review. Id. (citing 5 U.S.C. 

§ 7123). The other track allows the parties to a collective 

bargaining agreement to invoke binding arbitration if the 

collective bargaining agreement’s grievance procedures do not 

resolve a dispute. Id.; see also 5 U.S.C. § 7121(b)(1)(C)(iii). 

The arbitrator award is reviewable by the Authority. 5 U.S.C. 

§ 7122. But our review of the Authority decision is prohibited

by § 7123 unless the decision “involves an unfair labor 

practice under section 711[6]” of the FSLMRS. Overseas, 824 

F.2d at 63 (alteration and emphasis in original) (quoting 5 

U.S.C. § 7123(a)).

4

 In Overseas, we recognized that, although 

“some labor disputes are capable of following either track,” id.

at 63, “[t]he fact that the underlying conduct could be

characterized as a statutory unfair labor practice” is not enough,

id. at 67 (emphasis in original). Under § 7123(a), “a statutory 

unfair labor practice must be either an explicit ground for, or 

be necessarily implicated by, the Authority’s decision” to 

subject it to judicial review. Overseas, 824 F.2d at 67–68. Put 

another way, the Authority decision “need not address an unfair 

labor practice on the merits to involve an unfair labor practice, 

but it does need to include some sort of substantive evaluation 

of a statutory unfair labor practice”: “mere passing reference to 

an unfair labor practice will not suffice.” Ass’n of Civilian 

Technicians, N.Y. State Council v. FLRA (ACT), 507 F.3d 697, 

4 The FSLMRS refers to § 7118 but we have recognized that this is 

an error and that “the correct reference” is to § 7116 of the FSLMRS. 

Id. at 63 n.2. 

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699 (D.C. Cir. 2007) (citations and internal quotation marks

omitted). 

AFGE asserts that the Authority decision involved an 

unfair labor practice because it “necessarily implies” an unfair 

labor practice. Pet’r’s Br. 11 (emphasis omitted). We disagree. 

There is no discussion, mention or implication of an unfair 

labor practice in the Authority decision. Further, the arbitrator 

award does not once mention an unfair labor practice and none 

of the listed issues in the award, set forth with AFGE’s 

agreement, mentions or pertains to a statutory unfair labor 

practice. Pet’r’s App. (P.A.) 1.5

 Even if AFGE could have 

characterized the underlying conduct as a statutory unfair labor 

practice, it did not do so. In fact, this seems to be a 

quintessential example of exactly the scenario we discussed in 

Overseas: AFGE “affirmatively chose to invoke the agreement, 

not the statute. It must now live with the consequences that 

flow from invocation of this theory. [It] cannot be permitted at 

this late stage to transform its grievance claim into a statutory 

claim.” Overseas, 824 F.2d at 69. AFGE chose the 

arbitration-grievance process, framing the issues as contractual 

until it received an unfavorable ruling from the Authority. At 

that point, AFGE petitioned our court for review and asserted 

that its claim was an unfair labor practice all along, even though 

its earlier arguments, the arbitrator award and the Authority

5 FCI Miami’s exceptions reference an unfair labor practice in 

a single footnote, asserting that “[t]he current case is clearly a[n

unfair labor practice] brought through arbitration,” P.A. at 50 n.3;

AFGE’s opposition only references FCI Miami’s footnote, id. at 155. 

Assuming arguendo that a party’s statement to the Authority can 

establish that an Authority decision involves an unfair labor practice, 

these de minimis references in the parties’ filings do not: they do not 

demonstrate that the Authority decision “necessarily implicated,”

Overseas, 824 F.2d at 68, or “substantive[ly] evaluate[d],” ACT, 507 

F.3d at 699 (citation omitted), an unfair labor practice. 

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decision all focused on the Master Agreement—and, to a lesser 

extent, the MOU—without mention of statutory unfair labor 

practices.6 The consequence of AFGE’s choice is that we do 

not have jurisdiction. 

Review of our precedent bolsters our conclusion: the 

instant case is well-within the scope of several previous 

decisions in which we concluded we did not have jurisdiction. 

In United States Department of the Interior v. FLRA (Interior), 

we held that an Authority decision did not involve an unfair 

labor practice where the “arbitrator’s decision clearly frame[d] 

the issue as one arising solely under the parties’ collective 

bargaining agreements[,] . . . analyze[d] the case as an alleged 

breach of contract and f[ound] for the unions on that basis” and 

the Authority “decision repeat[ed] the arbitrator’s statement of 

the issue as one sounding in contract and conclude[d] that the 

arbitrator’s decision was sound.” 26 F.3d 179, 184 (D.C. Cir. 

1994). The underlying decisions in Interior also suggested that

“an argument could be made in an appropriate forum” that the 

actions in that case “constituted an unfair labor practice” but 

we nonetheless found the “passing reference” was not enough 

to provide us with jurisdiction. Id. (emphasis in original). 

Here, analysis is even more straightforward. The arbitrator 

award listed multiple merits issues—with the parties’ 

6 AFGE raises the MOU as a separate basis for concluding the 

Authority decision involved an unfair labor practice. Pet’r’s Br. 19–

24. Assuming the repudiation of the MOU was properly raised 

before the Authority and can be raised on appeal, AFGE raised the 

MOU before the Authority in the context of its contract-based

arguments. See P.A. 150 (arguing FCI Miami’s “failure to follow 

the local MOU and negotiate before implementation of the 

augmentation was a breach of contract” and that breach constituted

the underlying MOU issue). That AFGE potentially could have 

raised the alleged violation of the MOU as a separate, statutory unfair 

labor practice is of no moment. 

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agreement—and all were based in contract. The Authority

decision focused entirely on contractual claims, despite 

disagreeing with the arbitrator award. There is also no 

Authority statement substantively discussing or implicating

unfair labor practices. 

ACT is especially instructive. There, we concluded the

Authority decision did not “involve” an unfair labor practice 

where:

The Authority did not engage in any substantive 

discussion of the Union’s unfair labor practice 

claim in its order, but instead explicitly found 

that the arbitrator was justified in concluding 

that the substance of the unfair labor practice 

claim was not part of the dispute. As in 

[Interior], the “arbitrator’s decision clearly 

frame[d] the issue as one arising solely under 

the parties’ collective bargaining agreements,”

the “arbitrator analyze[d] the case as an alleged 

breach of contract,” and the Authority’s order 

“repeat[ed] the arbitrator’s statement of the 

issue as one sounding in contract.” 

ACT, 507 F.3d at 700 (quoting Interior, 26 F.3d at 184). Here, 

the Authority decision did not discuss an unfair labor practice 

at all and the issues were plainly framed and discussed as 

sounding in contract. As in Interior and ACT, the Authority 

decision does not “involve” an unfair labor practice.

This case is also distinguishable from cases in which we 

concluded an Authority decision did involve an unfair labor 

practice. In National Weather Service Employees

Organization v. FLRA, the Authority “addressed whether the 

Employer had committed an unfair labor practice and ruled that 

it had not” and the parties stipulated before the arbitrator that 

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one of the issues to be decided was whether the employer 

committed an unfair labor practice. 966 F.3d 875, 880 (D.C. 

Cir. 2020). Here, none of the issues the parties consented to 

before the arbitrator included any analysis of an unfair labor 

practice and the Authority did not address unfair labor practices

in its decision, let alone devote a section to discussing whether 

one was committed. In United States Department of the Navy, 

Naval Undersea Warfare Center Division Newport v. FLRA

(Undersea), the Authority decision necessarily implicated a 

statutory unfair labor practice because the contract provided no 

ground for the decision. 665 F.3d 1339, 1345 (D.C. Cir. 2012). 

Here the Master Agreement’s Article 18 provided the main 

basis for the Authority decision. 

AFGE makes several additional arguments to the contrary 

but we are unpersuaded. Citing our decision in Undersea, 

AFGE asserts that the Authority’s citation to BOP I and BOP II

means this case necessarily involves an unfair labor practice

because BOP I and BOP II addressed unfair labor practices. 

However, the Authority cited BOP I and BOP II for their 

interpretation of the contractual provision at the center of the 

merits dispute here—Article 18 of the Master Agreement—and 

to provide background for the long saga regarding this 

particular provision of the Master Agreement. See U.S. & Am. 

Fed’n of Gov’t Emps., 71 F.L.R.A. at 663. The Authority order

did not “derive[]” the meaning of Article 18 from the 

FSLMRS. Undersea, 665 F.3d at 1345–46. Next, AFGE 

argues that the Authority’s discussion of the Steelworkers

trilogy allows us to exercise jurisdiction. But that argument 

stretches the Authority’s discussion of the Steelworkers trilogy 

too far and cannot be squared with our approach in Overseas.

See Overseas, 824 F.2d at 66. Citation to and discussion of the 

Steelworkers trilogy is not surprising in Authority decisions 

reviewing arbitral awards and would—like allowing a party to 

convert a claim pursued as a contractual claim to a statutory 

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unfair labor practice at the petition stage to obtain review—

“drastically limit[]” the effect the Congress intended by 

curtailing judicial review of claims pursued through the 

arbitration path. Id. at 66. 

Finally, AFGE unavailingly points to Leedom v. Kyne, 358 

U.S. 184 (1958), and United States Department of the 

Treasury, United States Customs Service v. FLRA (Customs 

Service), 43 F.3d 682 (D.C. Cir. 1994), as alternative bases for 

our jurisdiction even if this case does not involve a statutory 

unfair labor practice. See Pet’r’s Br. 27–39. In 2006, we 

explained that the Leedom exception “is premised on the 

original federal subject matter jurisdiction of the district 

courts.” Am. Fed’n of Gov’t Emps., Local 2510 v. FLRA, 453 

F.3d 500, 506 (D.C. Cir. 2006) (emphasis in original) (quoting 

Customs Service, 43 F.3d at 688 n.6). As we are not a district 

court, Leedom cannot serve as the basis for our jurisdiction. 

Customs Service also does not provide us with jurisdiction. 

Unlike in Customs Service, here the Authority did not assert 

jurisdiction of and interpret a statute not meant to regulate the 

working conditions of employees. See 43 F.3d at 686; see also 

U.S. Dep’t of Homeland Sec. v. FLRA, 784 F.3d 821, 823 (D.C. 

Cir. 2015) (explaining limited exception to § 7123 created by 

Customs Service). Instead, the Authority interpreted a 

collective bargaining agreement—the Master Agreement—

governing the working conditions of employees as well as the 

statutes and rules applicable to labor-management arbitration 

and review of such arbitration in the federal public sector. 

For the foregoing reasons, we lack jurisdiction to review 

AFGE’s petition and dismiss the petition. 

So ordered. 

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