# Un ited S tates C ourt o f Ap peals

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

A MERI CAN F EDERA TION OF S TATE , C OUNTY & M UNIC IPAL E MPLOY EES C APITAL A REA C OUNC IL 26,

P ETITIONER

v.

F EDERA L LABOR R ELATION S A UTHORI TY , R ESPONDE NT

On Petition for Review of an Order of the Feder al La bor Relat ions Autho

rity

Sarah J. S

tarrett argued the cau se for pe

titioner. With her on the bri efs was Barbara J . Kraft.
David M. Shewchuk , At torne y, Fede ral Labor Relations Au th or it y, argued the cause for r espondent. With hi m on t he brief were David M. Smi th , S olicitor, and William R. Tobey
, Deputy Solicitor.
Before: R ANDOLPH , R OGERS , and R OBER TS , Circuit Judge s

. Op in io n for th e C ou rt fi le d b y Circuit Judge R OBER TS

. R OB ERTS , Circuit Judge : Petitioner American Federation of State, Co un ty & Municipal Employees Council 26 (“the U nion”) challenges an or de r o f t he Fe de ra l La bo r R el at io ns Au th or it y. The Union charged

the Federal Aviation Administration before2

the FLRA

with eng aging

in an unfa

ir labor p ractice when it refused to execute an agreement rea ched by the

two parti es. The Authority dismissed t

he compla

int, fi nding that the agreement

was only tentative and ther efore not binding

on the FA

A. In its pe titio n for review, the Union argues that the A uthority’s dec ision ( 1) is unsupported by substantial evidenc e and (2) represents an unexplained departu re from A uthority preced ent. We fi nd that the decision is supported by substantial evidenc e andis not inco nsistent with the Aut hority case law to which the Union directs us. We therefore deny the petition.
I.
This case arises out of ne goti ations over a collective bargainingagree

ment cove

ring four units of

FAA emp loy ees in Washington, D.C. The Union acted as the exclusive representative of th e employ

ees. The two sides b egan negotia

tions with preliminary

discussions in April 2000 continuing until February 2001, at which point

they appear ed to have

settled on

the terms of an agr eement. The hea

rt of this d

ispute is whet her the agreement

was fina l. The Uni on argues that it was and the FAA

was theref

ore leg ally

bound to execute it. The FAA takes the

o ppos ite view, asserting that the agreement was only tentative pending approva l by the Offi ce of Ma

nageme nt and Bu dget.
When the FAA refused to execute the ag reement beca

u se OMB had not y

et appro ved it, the

Union cha

rged th e FAA wi th

c ommitti ng an unfair labor practice. I t is an unfair labor practicefor

an agency

to refuse to negotiate with the representative of its employees in g ood faith. 5 U.S.C. § 71 16(a)( 5). This duty includes the obligation, “i f an agree ment is re ached, to execute on the request of any

party to the ne gotia

tion 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 of3

their negotiations. Th e FAA c laimed that it first informed the Union in April 2000 thatany ag reement would not be final until approved by OMB. A nthony Herman, one of the FAA’s repres entative s, testified that he discussed the requ irem ent of OMB approval with the Union’s primary representative, Steven Kreis berg, at their f

irst prel i mina ry meeting . The issue

arose again at the first b argaining ses sion in July when He rman told Uni on representatives that no agree ment would be final un ti l

a pprovedby t

he Secre tary of Transportation , OMB , an d Congress. According to Herma n, the Union was wellaware of that condition. Union President Gerry McEntee, who was present at the preliminary mee

ting, began referr

ing to the issue

as “the OMB problem” and once offe red to c a ll President Clinton if the pro blem ever became serious. Dept. of Transp., Fed. Aviat ion 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 ap pro val as a condition of final a

greem ent. Acc ording t

o Union witnesses, the issue was not even mentioned until the fall of 2000. D u ring in te ns e n eg ot ia ti on s o ve r p ay, th ey s ay, Herman told the Union that he ha d m ul ti pl e c on st it ue nt s t o s at is fy, inclu ding OMB. Kreisberg then demanded that the FAA bring fully authorized negotiators to the table . Accor ding to U nion witne sses, Herman responded

that he needed prior OMB approva l for offers regarding pay, but had

full autho

rity to negotiate onc e he cam e to the table. A n FA A witness g ave a sim ilar acc ount of thi s incident
, with an important differenc e : he stated that FAA representatives made cle ar only that they had full a

uthority to negotia te a tentative agreement, but nothing would be f

inal until OMB app roval. Negotiations continued into January 2001. The i ssue of OMB approva

l arose ma

ny t imes, but th

e part ies disagree sharply about t

he context. The Union maintains that the issue4

was prior ap

proval of pay offers ; the FAA

that a pproval wa s a condition of final agreement. On January 19, the tw o sides — withthe outgoing Secretary of Transportation p re sent — reached a gr eement on pay

increases. Officials from the FAA insist ed, however, that the details of the agreement not be

r ele aseduntil the incoming Secretary , Norman Mineta, was briefed on the deal. Someone from the Union’s side appa rently let the matter slip, and Herman fired off an email re mind in g Kreisberg that “there is no ag reement until Secreta

ry -desig nate Minetta [sic] has been briefed.” FAA , 59 F.L.R.A. at 499. The email did not mention OMB appr oval.
The issue of OMB approval came up s everal t imes as negotiations neared

their conclusi on. FAA n

egotia tors rec all a January 24 bargainingsession at which Herman told the union: “We’re very

worried that we’ re not g oing to g et OMB approva l. It’s a new Administration. It’s a new time. We don’t know what this O MB is going to say .” Kreisberg merely responded, “I unders tan d.” Id. at 500. Union witnesses testified that the OMB issue arose when

a bar gaining session scheduled for January 30 was postponed because FAA neg otiator s had not received “external clearanc es.” Id. It was not clear at the time what this meant . Accor

ding to U nion witne sse s, se ve ra l d ays la ter Herman and Ray

Thoman, another FAA representative, informedthe Union that the problem had b een resolved, specific ally

mentioning

that t hey had received OMB approva l,

an d t ha t t he y we re re ad y to ma ke an of fe r r eg ar di ng pa y. The two sides reached agree ment on the remaining terms on February 5. Thei r appar

ent misund

erstand ings abo ut OMB approval then came to a head. Union witnesses say that Thoman told them to delay announcing the a greem ent until O MB approved, which he ex pe ct ed wo ul d t ak e o nl y a day. Kre isberg objectedto OMB approval but agreed nevertheless to dela y the

announc ement. As it turn ed out, OMB conside ration took longer than anticipated. When no ans wer c ame t he ne xtday, the5

Union proceeded wi th ra tification. The final agreement was submitted to a vote a

nd appro ved by

th e mem bership on February 21.
The same day, t

he two si des beg an an exch ange o f emails about OMB approval. Herman emailed Kreisberg to remind h

im that there was no final agreem ent until OMB approved. Kreisber g res ponded that he objected to OMB having final authority over the agreement. A subseque nt email from Kreis berg informed Herman that the agree ment had been ratified. Herman answered that he was “pleased” but that there

was no deal until OMB completed its revi ew . Kreisbe rg ag ain objected.
On Febru ary 26, the Union sent a letter to Thoman and Hermanrequesting execution of the agreement. Herman replied that execution “would

be inappropriate” because OMB had not yet approved. The Un

ion filed i ts u nfair la

bor pr actic e charge with the FLRA on March 20. On May 9, a letter

from Herman informedthe Union that

OMB had

declined to appro ve the de al.
After hearing the evidence, the AL J concluded that

the FAA hadnot committ

ed an unf

air labo r pract ice bec ause

f inal agreement

w as p remised on OMB ap proval. Her anal

ysi s proceeded

in two parts. First, she explained, und er Au thority preced ent, an “agreement” for

purposes of section 7114(b)(5) is “one in which authorized representatives of the parties c ome to

a meeting of the minds on the terms over which they have been bargaining.” FAA , 5 9 F.L.R.A. at 505. An ag reement reached by re presen tatives who are not fully “ authorized” is therefore notfinal and n eed not be executed. Second, she considered whether the Union had wai v ed its stat utory right to deal with authorized representatives of the FAA. Thi s right isfound in the duty of good faith, which includes the obligation “to b e repr esent ed at the negotiations by duly authorized representatives prepared to di sc us s a nd ne go ti at e o n a ny c on di ti on of em pl oyme nt.” 5 U.S.C. § 7114(b)(2). A union may wa ive t his right
,6

the ALJ reasoned, but to be valid, any waiver must be clear

and unmistakable. Applying this framew ork, t he ALJ found that the FAA’s negotiat ors 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 app roval during the negotiations.” FAA , 59 F.L.R.A. a t 506. The judge cred

ited F AA representatives Herman and Thoman, finding their testimony “consist ent and lo gical within the time frame of extended negotiations,” assigning particular weight to Herma

n’s c onve rsations with McEntee about “the OMB problem.” Id. She also reliedon ev idence presented at the heari ng showing that negotiations between the FAA and several other em

ploy ee units were made con tingent on OMB approva l. It was “difficult to believe”that the Uni on was no t

awareof this. Id. On the issue o f w aiver, the ALJ found “that the evidence establishes a clear and unmistakable waiver of the Union’s statutory rights with regard to t he [FAA] having authorized representatives at the table.” Id.
The Authority

partially aff

irmed the ALJ’s ruling. It found that the record evidence supported “the [AL J’s] finding thatthe Union acquies ced in

the requirement

for OMB approval.” Id. at 493. The Author ity declined, howeve r, to address whether the ALJ “failed

to proper ly apply the law of w aiver” or “whether the [AL J] erred in finding that

there was no final ag

reemen t becaus e the Respondent’s repre sent atives 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 otherwis e 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 fin dings o f fact if supported by substantial evidence “on the record consider ed as a w hole.” 5 U .S.C. § 7123(c ). Under this standard, the Authority’s judgme nts need not be ri ght in our ey es, but they must come with “rele vant evi denc e as a reasonable mind might accept as adequate to support a conclusion.” Con solidated

Edison Co. v. NLRB , 305 U.S. 197, 229 (1 938) ; Thomas v. NLRB , 213 F.3d 651, 657 (D.C. Cir. 2000). We are furthermorebarred from considering any objection by the Union that wa s not urged before the Authority “unless the failure o r neglect to urge the objection is excused because of

extraordinary circumstances.” 5 U.S.C. § 71 23(c); see EEOC v. FLRA , 476 U.S. 19, 23–24 ( 1986) (pe r curia m); Nat’lAss’n o

f Gov’t Employees , 363 F.3d at 475.
The Union beg

ins b yarguing that the Authority lacked substantial evidence to support its conclusions. In particular, it contends that there was insufficient evidence that the FA A made t h e OMB approval requirement plain or that the Union had acquiesced in any

such condition.
We think that t

he A uthority’s decision has sufficient support in the re cord. The eviden ce plac ed it

in a dif ficult position: the two sides’ versionsof event s were p lainlyinconsistent. See FAA , 59 F.L.R.A. at 505 (“Althoug h the witnesses for bothparties were clearly

at the same neg otiations, which lasted a period of several

months, there is no similarity with rega rdto the OMB ap pr ov al is su e. ”) . T he FA A s ays 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 th e fall, several months after negotiations began. Even where there is agre e ment that8

1 The Union focuses much of its argument on the ALJ’s supposed factual findin gs, wh ich in its view contrad ict the A utho ri ty ’s c oncl usions. It cites , for

example, the ALJ’s finding that “[t ]he Union never agreed tha t OMB approva l of the agree me nt w ould be a ll right. ” Pe t. Br. at 17. On i ts fa ce , o f c our se , t hi s s ta te ment

se ems to do co nside rable damage to the Authority ’s ruli ng . It is expl aine d, howe ver , by the (adm ittedly confusing) way i n which the AL J presents t he facts i n her opini on, as the A utho rity points ou t. See Res p. Br. at 17–1 8. Th e “St ate ment of

Facts” section does not lay out the AL J’s findings

— those appear in the “Analysi s and Conclusion” sect ion — bu t only

summ arizes the testi mon y of each side’s witnesses. OMB app rov al w as r ais ed, th e co nt ex t i s di spu ted . In th e Union ’s view, the issue was approval of FAA offer s; in the FAA’s view, it wa s approva l of the final agr

eement.
The Authori ty’s de cision thus hinged on which version of events it found more credible. We normally a ccord substantial deference to such determ inations u nless the y a re “‘ho pelessly incredible,’ ‘self-contradictory ,’ o r ‘patently unsupporta ble.’ ” 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. FL RA , 7 70 F.2d1223, 1226 (D.C. Cir. 1985). Here, th e Author ity e xpressly reliedon the ALJ’s decision to credit the tes ti mony of FAA representatives Herman and Thoman. The A LJ found their testimony“consi ste nt 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 conce rni ng Un ion President McEntee’s references e arly in the neg otiations to “the OMB problem.” Id. McEntee himself did not appear at the hearin g, and the Union did notdeny Herman’ s testimony

on this point. We find nothing “unsupportable” in the Authority ’s decision to credit the testimony

of the FA

A witness es. The Union nevertheless points to two aspects of the record that it believes undermine the Autho rity’s ru ling. 1 First, it cites “undisputed” testimony

that, during a bargaining session in the9

fallof 2000, Krei sberg an grily de manded that the FAA bring fully authorized negotiators to thetable. See Pet. Br. at 17. Yet this event, too — like much else — is a subject of disag reemen t. The Union contends that Kreisberg’s objection led to assuranc es from Her man and Thoman that they ha d authority to reac

h a final agreement and needed OMB approval only prior to making offers. Herman

and Thoman insist that they promised no more than full autho

rity to negotiate

a tentative agree

ment. The ALJ

r esolvedthese conflicting accounts by crediting one side’ s version over the other’s, and we have no basis for f aul tin g that determination. Second, the Union

sugge sts that Herman’s January 23, 2001 email an d a ha nd wr it te n n ot at io n a cc om pa nyi ng a p ay agr eement from the s ame time p erio d dem onstrate that the o nly condition of final agreement was review by the Secretary . The absenceof a

m ention of OMB in either document, the Union argue s, shows that final agreement was not c onditione d on OMB approva l.
We do not find this contention a sufficient basis for overturning the FLRA decision. First, the handwr itten notation is hardly the sort of e

vide nce that wo uld lead us to disturb the Authority’s factual findings. I t shows only

a sentence, crossedout, conditioning the agreement on the Sec

retary ’s appro val — too inscruta

ble to invite an

y ob vious infe

rences . The ema

il from Herman off

ers more , but not enough. I t does sta

te, with reference to art icles rega r ding pay , that “there is no agreement until Secretary -designate [Mineta] has bee n briefed.” Herman Email, Jan. 23, 2001. But the email does not make clear that the “agreement” it refers to is anything more than the usua l (in the FAA’s view) tentative ag reement reached by the parties at the bargainingtable; nor doe s i t rule out OMB appr oval as a condition of a final agreement. Cf. Che vron U.S .A. Inc. v. Echazabal
, 536 U.S. 73, 81 (2002) (canon o f expressio unius “depends on identify

ing a se ries of tw o or more

terms or thi ngs10

2 No rma ll y, w hen the tw o sid es rea che d ag reem ent o n sp ecific provisions, the y i nitia led them to indicat e that t hey had completed discussion on those iss ues. Because the two sides had reached an ag ree ment over pay at an awkward time — just days before a new Adm inist

rati on wa s to t ak e o ff i ce — th e F AA r eques ted that the deta ils not be relea sed un til the in com ing S ecreta ry-desig nate had been bri efe d. It

was one Union official ’s disrega r d of this request t

hat pro mp ted H erm an’ s em ail. that should be u

nderstoo d to go hand in hand, which is abridged in circumstances supporting a sensible inferenc e that the ter m left out must have been meant to b e excl uded”). It doe s not, sta ndi ng a lon e, unde

rmi ne t he othe r evidence

bef ore the AL J.
Fi na ll y, the Union urges that theAuthority lacks substantial evidencefor the fi nding that OMB actually rejected the agree

ment. 2 It re

li es on adraft email from an OMB official stating that th e “final decision of whether to enter into the ag reement reste d wi th th e F AA ’s ma na ge me nt .” Ol iv er Em ai l, Ju ly 2 0
, 2001. The Autho

rity ’s princ ipal resp onseis that, since the final agreement

was conditi oned on OMB approval , the is sue is not whether OMB rej ected th

e agreement but

only wheth er it ever approved it. That may be, but we need not resolve the issue. As t he Authority

points out, Herman t

estified that he wa s there in person when OMB called to reject the agr eement. This evidence adequa tely supp orts the finding that OMB rejected the agreement.
III.
The Union’s remaining argument is of a diff erent ki nd . It contends that the Authority depar ted from its own precedent withoutexplanation when it found that “the Union ‘acquiesced’ in the waiver of its statut oryrights but fail[ed] to find that the Union ‘waive d’ those rights.” Pet. Br. at 27. This argume nt invokes an important principle i n our review of agency action: reasoned decision-making demands “treating like c ases alike.”11

3 In fact, the complaint speci fical ly s tates : “Herman and T homan

were the chi ef ne got iators for the Responde nt dur ing t he nego ti ati ons

. . . and had full authority to negot iate acol lec ti ve bar gai ning agreemen t on behalf of t he Respond ent.” Unfair Labor Prac tice Complai nt ¶ 14. Envtl. Action v. FERC
, 996 F.2d 4 01, 412 (D .C. Cir. 1993). An agency is free t o chang e course , but when it does, it m

ust p rovi de “a reasoned analy sis 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 w

hether t he Author

ity d id, in fact, depart from its precedent. The Union argue s that underAuthority precedent the issues of waiver and acquies cence a

re “inextricably intertwin ed.” Rep ly B r. at 15. M ere ac quiesce nce, on th is view, does not satisfy the heig hten ed standard for fi ndin g a waiver of the Union’s right under 5 U.S.C. § 7114(b) (2) t o negotia te with duly authorized repre sentatives of the FAA. The Authority’s view diff

ers so g reatly that the p arties ha

rdly join issue here. Its order decline s to add ress the subject of waiver, viewing it as irrelevant to the decision where a mere finding of acquiescence

would suffice. Parties to a labor negotia tion, in its view, are fr

ee to set conditio ns of final agreement without implicating the rig orous waiver standard. Furthermore, the Authority claims, the issue of w aiver is “not a par t of this case” beca use it was not p art of the unfair la bor practice comp la in t fi le d w it h t he Au th or it y. 3
The crux of the dispute, then, is over the place of the waiver standardin the Authority’s case law. If, un der the Authority’s preced ents, the Union need only a cquiesce to the cond ition of OMB approval, then waiver is irreleva nt to the Authority’s rulin g. If, h owever, the Authority ’s precedents mandate the12

Union must first clearly and unmistaka bly waive it s statutory right unde r section

7114(b)( 2) for a

condition

such as O MB approval to be valid, then the Autho rity was req uired to a ddress the is sue in its r ulin g. The Union cites four Authority c ases for its view that waive rand a cquiesc ence ar e “inter twined,”none of w

hich, in the end, say s what the

Union needs them tosa y. 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. Se e Dept. of Transp., Fed. Aviation Admin., Standiford Air Traffic Control Tower v. Nat’l Air Traffic C

ontrollers 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. Se c. Admin. Field Operations Locals v. L

epore , 21 F.L.R.A. 319, 331 (1986) (agreement found where union did notshow that agency

had “prior knowledge” of re strictio ns on union’s repres entative ); Long Beac h Naval Shi

p yard v. Fed. Employees Metal Trad

es Counci l , 7 F.L.R.A. 10 2, 11 3 (1981) (a gr eement

found where employer representative “never mentioned any

limi tations on his authority”). We find no sugge sti on in a ny o f these c ases tha t this notic e requir

ement is equivalent to the waiver standard.
The fourth c ase c ited by the Union offe rs still greater support for the Authority’s r

uling. In Internal

Revenue Service, Brooklyn District v. National Treasur y E mployees Union , 23 F.L.R.A. 63 (19 86), t he uni on cha rge d the Internal Revenue Service (IRS) , as here , with failing to e xecute a final agree

ment. The IRS answered

that it was not bound because its representative only had authority to rea

ch a te nt ati ve a gre eme nt . Th e ALJ agreed, find ing t hat I

RS repre sentative s told the u nion of the

ir limited authority at the outset of neg otiations

. Id. at 84. Neverth eless, she proceeded to apply the w aiver standard and13

determinedthat the IRS, while not bound by the ag reement, had violated its du ty o f good faith under section 7116(a)(5)by f ai ling to send au

thorized r eprese ntatives t o the neg otiations. Bo th ho ld in gs we re af

fi rm ed by t he Au th or it y. Under Brooklyn District , waiver is plainly distinct from “notice” or “acquiescence. ” The first applies to the statutory right, under section 7114 (b)(2) , to barg ain with duly authorized repres entative s; the seco nd applie s where the ultima

te issue is the duty to execute an ag

reement under section 7114 (b)(5) . This division of labor hurts the Union because the sol e issue in this dispute is whethe

r FAA fa iled to exec

ute a fin al ag reemen

t, which would not implicate the waiver standard. I n short, the Union cannot argue that the Aut hority’s refusa l to apply the waiver standar d is a depa

rture fr om any of the Au

thority preced ents it cit es. There is a 1992 Authority decision that offe rs some support for the v iew that the waiver standard should be applied even where the charge is fa

ilure to execute. In Department of Navy, Portsmout

h Naval Ship

yard v. Federal Employees Metal Trades Council
, 44 F.L.R.A. 205 (1992), the union char ged the shipy ard withfailing

to execute a final agreement af ter representatives for bothsides agreed to terms at the barg aini ng tab le. The ALJ foundthat the agreement was not sufficiently final to trigger an obligation to execute under section 7114 (b)(5 ) because the pr actic e at the shipyard — whic h the union’s representative “knew, or shoul d have known” — was that no agree ment was final until it was reviewed by the shipyard’s e

mployee relations division and signed by

the appropriate official. Portsmout h , 44 F.L.R.A. at 215.
Whilethe ALJ did not apply the waiver standard in reaching this conclusion, the Autho rity evidently felt compelled to do so. It noted that14

the [ ALJ] d id not explicitly state whether the practice

.

. . constitutes a clear and unmistakable waiver by the parties of their right un der 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 c oncluded:
Becau se we find th at the pa rties c le arly and unmistakably waived their right under section 7114(b)(2)of t he Statute by virtue of their pr

actice, a s discussed above,

we agree with the [ALJ] that the oral ag reement reached at the end of the third bargaining ses sion was only “a tentative agreement” subject to review a nd ap pr oval by both part ies.
Id. at 208.
It could re asonably

be arg ued that t

h e Aut hority’s reasoning in Portsmout

h is at odds with the Aut

hority ’s order

in the case before us. Portsmouth suggests that the waiver standardshould app ly

even in cases, like this one, brought under section 7114(b)(5) for failure to execute an ag reement. Indeed, Portsmout

h appears to leave little room fo r t he acquiescence standardat all, but

only for one standa

rd: clear a nd unmista

kable waiver. The order

before us seems to take a different approach. It finds ac quiesce

nce while expressly declining to addr ess the issue of waiver. The two are therefore trea ted by the Autho

rity

as distinct s tanda rds, with only the less stringe nt acquiescence standard applicable where the issue is failure to execute a final agreement

— a concl usion c onsistent 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. C i r. 2003) (“An agency ’s failure to come

to grips with conflicting precedent constitutes an15

4 Although the AL J opinion cites Ports mouth only once, s everal para gra phs of i ts le gal anal ys is are borr owed v erbat im from Po rtsm ou th
, inc ludi ng some of t he langu age qu oted ab ove. Com pare FAA , 59 F .L.R .A. at 5 05, with Po rtsm ou th , 44 F. L.R.A. at206–07. inexcusab le departure from the e s sential requirement of reasoned decision making.” (internal quotation marks omitted)).
Butth is is not the argument made by the Union befor e this court or, forthat matte r, befor e the Authority . At no time does the U ni on ever s ugge st that Portsmouth was inconsistent wi th t he Authority’s ruling . In its briefs to us, it cites Portsmout

h once, and only f

or the uncontested proposition that

an agenc y isrequired by

statute to

execute a

final ag reemen t. See Pet. Br. at 27–28. Pressed at oral argument, counsel for the Union in fact appeared to acknowledg e that waiver and acquies

cencewere dis tinct standards and th at bot h were at issue — a striking admission g

iven that the AL J’s opinion isnot at all

clear

on this point a

nd relie d heavily

on Portsmouth for it s reaso ning. 4 See Ora l Ar g. T r. a t 3 :4 4–: 48 ( “th e ALJ actually had f ound that there was b oth acquiescence and waiver” ). The Union proceeded in a similar fashion before the Authority, citing Portsmout

h three tim

es, none relating to the applicability of the waiver st and ard . In s tead, as we have noted, supra at 12–13, it points us — as i t did the Authority — to several ca ses that are consistent with the Authority’s order a nd require no explanation.
We find ther

efore t hat we ha

ve no bas is on which t o disturb the Autho

rity ’s ruling . Two con siderati ons le ad us to this conclusi on. The f

irst follows f rom the fa

miliar ru le that we gener ally will not co nsider a

rgumen ts 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 ar

guing that an

agency has departed

from its precedent withoutexplanation should, at a minimum, direct the court to the relevant precedent and explain how it is inconsistent with the16

agency ’s ruling. Imprecise charges of incons istency , brought in th e ho pe th at an ap pe ll at e c ou rt wi ll un co ve r a n a ge nc y p rece

dent to support them, will not do.
The second consideration is jurisdictional, and therefore

m ore ser ious. Our jurisdiction to review the Authority’s decis i ons does not extend to an “objection that has not been urged before

the Autho

rity .” 5 U.S.C. § 7123(c ); EEOC , 47 6 U.S. at 23 (Cou

rt of Appe als is “withoutjurisdiction to consider

an issue not r

aised before the

Board i f the fa

ilure to do

so is not excused by extraordinary circumstances” (internal quo tation marks omitted)). Neither the Union’s brief to the Authority nor its post-hearing brief to th e AL J argued that Portsmout

h required applica tion of the

waiver s tandard . We may not, therefore, review the Authority ’s judgment on this ground. The FLRA is the experton labor r

elations in the fed

eral g overnme

nt; it is statuto

rily entitled t o first crack a t argum ents abou t how to

ex er ci se it s a ut ho ri ty.
For the reasons stated, the petition for review is denied.