United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 19, 2004 Decided January 14, 2005

No. 04-1021

AMERICAN FEDERATION OF STATE, COUNTY & MUNICIPAL

EMPLOYEES 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 representative 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 representative 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 represented at the negotiations by duly authorized representatives

prepared to discuss and negotiate on any condition of employment.” 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 bargain.” Id.
7

II.

Our review of the Authority’s order is limited to determining 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 reasonable 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 inconsistent. 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

1 The Union focuses much of its argument on the ALJ’s supposed

factual findings, which in its view contradict the Authority’s conclusions. 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 considerable damage to the Authority’s ruling. It is explained, however, by the

(admittedly 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

summarizes the testimony of each side’s witnesses.

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
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 agreement 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, crossedout, 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

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

Administration was to take office — the FAA requested that the

details not be released until the incoming Secretary-designate had been

briefed. It was one Union official’s disregard of this request that

prompted Herman’s email.

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 agreement.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 agreement.

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.”
11

3

In fact, the complaint specifically states: “Herman and Thoman

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.

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 Authority precedent the issues of waiver and acquiescence are “inextricably 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
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 informed” 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 representative 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 unmistakably 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

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 quoted above. Compare

FAA, 59 F.L.R.A. at 505, with Portsmouth, 44 F.L.R.A. at 206–07.

inexcusable departure from the essential requirement of reasoned 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 acquiescence 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 proceeded 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
16

agency’s ruling. Imprecise charges of inconsistency, brought in

the hope that an appellate court will uncover an agency precedent 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.