 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued September 24, 2007          Decided October 26, 2007

                        No. 06-1354

 ASSOCIATION OF CIVILIAN TECHNICIANS, NEW YORK STATE
                       COUNCIL,
                      PETITIONER

                             v.

          FEDERAL LABOR RELATIONS AUTHORITY,
                     RESPONDENT


          On Petition for Review of an Order of the
             Federal Labor Relations Authority



     Daniel M. Schember argued the cause and filed the briefs
for petitioner.

     James F. Blandford, Attorney, Federal Labor Relations
Authority, argued the cause for respondent. With him on the
brief was William R. Tobey, Deputy Solicitor.

    Before: SENTELLE, TATEL and GRIFFITH, Circuit Judges.

    Opinion for the Court filed by Circuit Judge SENTELLE.

    Dissenting opinion filed by Circuit Judge TATEL.
                                2

     SENTELLE, Circuit Judge: The Association of Civilian
Technicians, New York State Council (“the Union” or “the
Association”), petitions for review of an order of the Federal
Labor Relations Authority stemming from a grievance filed by
the Union after the New York Division of Military and Naval
Affairs implemented a state-wide smoking ban at its facilities.
The parties could not resolve the grievance, so the Union
submitted it to binding arbitration in accordance with the terms
of its collective bargaining agreement and the Federal Service
Labor-Management Relations Statute, 5 U.S.C. § 7101 et seq.
The arbitrator denied the grievance and the Union filed
exceptions to her award with the Authority. The Authority
denied the exceptions in the order at issue here. Because we
find that we lack jurisdiction to review the Authority’s order, we
dismiss.

                        I. Background

     In 2003, New York amended its Clean Indoor Air Act to
prohibit indoor smoking in all “places of employment,”
including workplaces of “the legislative, executive and judicial
branches of state government and any political subdivision of
the state.” N.Y. Pub. Health Law § 1399-o(1), -n(2).
Accordingly, the New York Division of Military and Naval
Affairs (“DMNA”) issued a new smoking policy that prohibited
all smoking in National Guard facilities in New York.

     The Association of Civilian Technicians, New York State
Council, which represents the civil technicians working at the
Guard facilities, filed a grievance charging that the DMNA had
violated their collective bargaining agreement by failing to
negotiate the terms of the new smoking policy. When the
grievance was not resolved, the Union invoked its right to
binding arbitration and added an allegation that DMNA’s
unilateral implementation of the policy constituted an unfair
                                 3

labor practice because it was taken in clear and patent breach of
the collective bargaining agreement’s negotiation provisions.

     The parties were unable to stipulate to the issues before the
arbitrator. She reviewed their proposed issues and found that,
“[a]t the heart of this case is a dispute over the interpretation and
application of the language of the Parties’ Collective Bargaining
Agreement.” She then framed the issues as “Did the Agency
violate the Collective Bargaining Agreement when it issued a
new smoking policy letter on 23 July 2003?” and “If so, what
should the remedy be?” She concluded that the DMNA had not
violated the collective bargaining agreement because the
smoking ban was a statutory requirement and therefore did not
fall within the agreement’s requirement that rules “within the
purview” of the DMNA be negotiated.

     The Union filed exceptions to the arbitral decision with the
Federal Labor Relations Authority arguing, in pertinent part, that
the arbitrator exceeded her authority when she failed to address
its unfair labor practice allegations. The Authority denied the
Union’s exceptions, finding that the arbitrator had not erred in
framing the issues as arising solely under the collective
bargaining agreement. Under Authority precedent, where
parties do not stipulate to the issues before the arbitrator, the
arbitrator has broad discretion to frame the issues. Ass’n of
Civilian Technicians, N.Y. State Council, 60 F.L.R.A. 890
(2005), recons. denied, 61 F.L.R.A. No. 134 (2006) (citing
AFGE, Local 1367, 60 F.L.R.A. 187, 190 (2004)). Therefore,
in this case, because there was no stipulation that an unfair labor
practice claim was before the arbitrator, the arbitrator was not
obligated to frame the issues as including an unfair labor
practice claim. Id. The Authority deferred to the arbitrator’s
framing of the issues and dismissed all exceptions to her award.
Id. The Union sought reconsideration, which was denied, then
petitioned for review by this Court.
                                   4

                            II. Analysis

     We lack jurisdiction to review the Authority’s order
affirming the arbitral decision because it does not “involve[] an
unfair labor practice under section 711[6]” of the Federal
Service Labor-Management Relations Statute. 5 U.S.C.
§ 7123(a)(1).* The Authority’s order instead involves rules
applicable to arbitration which, when applied in this dispute,
resulted in the unfair labor practice claim’s exclusion from
review. We find that this secondary effect on the unfair labor
practice claim is not sufficient to qualify the order as one that
“involves an unfair labor practice” for purposes of 5 U.S.C. §
7123(a)(1).

     The Federal Service Labor-Management Relations Statute
limits our review to orders of the Authority which involve unfair
labor practices in order to balance a “strong Congressional
policy favoring arbitration of labor disputes,” Overseas Educ.
Ass’n, 824 F.2d 61, 63 (D.C. Cir. 1987), with a Congressional
intent for “uniformity in the case law concerning unfair labor
practices,” AFGE, Local 2510 v. FLRA, 453 F.3d 500, 505 (D.C.
Cir. 2006). The Statute contains a “two-track system for
resolving labor disputes.” OEA, 824 F.2d at 62. A party
aggrieved by an unfair labor practice may go down either track,
but not both. 5 U.S.C. § 7116(d). Under the first track, not
pursued by the Union in this case, a party may file an unfair
labor practice charge with the Authority’s General Counsel, who
will investigate and issue a complaint, if warranted. Id.
§ 7118(a). The matter is then adjudicated by the Authority, and


        *
          Although the statute refers to “section 7118,” the reference
“has been recognized to be an error; the correct reference is to section
7116.” AFGE, Local 2510 v. FLRA, 453 F.3d 500, 502 n.* (D.C. Cir.
2006) (quoting Overseas Educ. Ass'n v. FLRA, 824 F.2d 61, 63 n.2
(D.C. Cir. 1987) (“OEA”)).
                                5

the Authority’s decision is subject to judicial review. Id.
§§ 7118, 7123. Under the second track, which was followed
here, a party may file a grievance in accordance with its
collective bargaining agreement that alleges an unfair labor
practice, a violation of the collective bargaining agreement, or
both. The grievance is subject to binding arbitration, id.
§ 7121(b)(1)(C)(iii), and the arbitral award is subject to review
by the Authority, id. § 7122(a). The Authority’s order is not
subject to judicial review “unless the order involves an unfair
labor practice under section 711[6]” of the Statute. Id.
§ 7123(a)(1). The second track is the track for those who
“prefer[] to benefit from the relatively expeditious and
(presumably) final result that arbitration promise[s].” OEA, 824
F.2d at 66. By offering its one level of review at the
administrative level, it protects Congress’s interest in providing
“arbitration results substantial finality.” Id. at 63. Its limited
exception that allows a second level of review—judicial
review—furthers Congress’s other stated interest of ensuring “a
single, uniform body of case law concerning unfair labor
practices.” AFGE, Local 2510, 453 F.3d at 505.

     Reading the exception broadly, then, would be contrary to
“the proarbitration policy Congress articulated in passing the
Act.” OEA, 824 F.2d at 66. For that reason, we have found that
judicial review is only available where the “substance of the
unfair labor practice” is “‘discussed in some way in, or [is] some
part of, the Authority’s order.’” AFGE, Local 2510, 453 F.3d at
505 (quoting OEA, 824 F.2d at 65). “A mere ‘passing reference’
to an unfair labor practice will not suffice,” id. at 503, nor will
the fact that “the underlying conduct could be characterized as
a statutory unfair labor practice,” OEA, 824 F.2d at 66. Instead,
“the conduct must actually be so characterized and the claim
pursued, by whatever route, as a statutory unfair labor practice,
not as something else.” Id. at 66.
                                6

     The order 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.” OEA, 824 F.2d at 71. For example, in OEA, the
Authority did not decide an unfair labor practice claim on the
merits because it concluded that the claim was precluded by a
previously-filed claim. Id. Its order nonetheless “involved” an
unfair labor practice because it included a detailed substantive
analysis and comparison of the two unfair labor practice claims
such that its discussion of unfair labor practices was “no mere
citation in passing.” Id. at 70–71.

     On the other hand, we have found that an order 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” and the
Authority’s order “repeat[ed] the arbitrator’s statement of the
issue as one sounding in contract.” U.S. Dep’t of Interior v.
FLRA, 26 F.3d 179, 184 (D.C. Cir. 1994) (“DOI”). We have
also found that the standard was not met where the Authority’s
order reviewing an arbitration fee award contained “neither a
single mention of § 7116 (unfair labor practices) nor any
discussion of the arbitrator’s finding of an unfair labor practice
other than passing references” to the issues in the underlying
dispute. AFGE, Local 2510, 453 F.3d at 504. Where an order
does not contain a substantive discussion of an unfair labor
practice claim, there is no need to depart from Congress’s
“established policy ‘favoring arbitration of labor disputes and
accordingly granting arbitration results substantial finality,’
which . . . underlies the general rule in § 7123 barring judicial
review of arbitral awards” because “there is no risk the
Authority will leave the path of the law of unfair labor practices
and yet escape the review that would bring it back to the straight
and narrow.” Id. at 505 (quoting OEA, 824 F.2d at 63).
                                7

     The Authority’s order in this case does not “involve” an
unfair labor practice under our precedent. 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
DOI, the “arbitrator’s decision clearly frames the issue as one
arising solely under the parties’ collective bargaining
agreements,” the “arbitrator analyzes the case as an alleged
breach of contract,” and the Authority’s order “repeats the
arbitrator’s statement of the issue as one sounding in contract.”
DOI, 26 F.3d at 184. Therefore, as in DOI, the order does not
“involve” an unfair labor practice.

     We note that if the Union wished to protect its right to
judicial review of any possible unfair labor practice claims, it
could have utilized the first track provided by the Statute which
leads to judicial review. Because it instead decided to proceed
through the second track, it is bound by the Statute’s ban on
judicial review unless the Authority’s order “involves” an unfair
labor practice.

     The Union fails in its attempt to characterize this order as
involving an unfair labor practice by pointing to its effect on the
Union’s unfair labor practice allegations. While the Authority
ensured that the Union’s unfair labor practice claim will not be
considered on its merits by affirming the arbitrator’s framing of
the issues, our caselaw is clear that the Authority’s order itself
must have some “bearing upon the law of unfair labor practices”
in order to qualify as an order that “involve[s] an unfair labor
practice.” AFGE, Local 2510, 453 F.3d at 505. A passing
reference to an unfair labor practice or a mere effect on the
reviewability of an unfair labor practice claim is not enough.
Because the Authority’s order in this case deals solely with
arbitration procedure, and neither discusses nor in any other way
                               8

affects substantive law regarding unfair labor practices, it does
not “involve” an unfair labor practice. We have no jurisdiction
to review the order.

                       III. Conclusion

     For the reasons discussed above, we dismiss the petition for
lack of jurisdiction.
     TATEL, Circuit Judge, dissenting: The court concludes that
we lack jurisdiction to hear the union’s challenge to a Federal
Labor Relations Authority order that disposed of the union’s
unfair labor practice claim based solely on an arbitrator’s
unexplained failure to resolve that claim during the grievance
process. Because I believe that the Authority’s order “involves
an unfair labor practice” within the meaning of section
7123(a)(1) of the Federal Service Labor-Management Relations
Statute, 5 U.S.C. § 7101 et seq., and that the court’s
interpretation to the contrary finds no support in our precedent,
I respectfully dissent.

                                I.

     As the court correctly observes, the statute establishes a
two-track system in which an aggrieved union can either file an
unfair labor practice charge with the Authority’s General
Counsel or submit a grievance to binding arbitration, but may
not do both. See Overseas Educ. Ass’n v. FLRA, 824 F.2d 61,
62-63 (D.C. Cir. 1987) (“OEA”). In this case, the union chose
to pursue its unfair labor practice claim through the grievance
process. In its pre-hearing brief before the arbitrator, the union
argued that the employer committed unfair labor practices in
two ways: by changing employee working conditions without
affording the union notice and an opportunity to bargain; and by
committing a clear and patent breach of the collective
bargaining agreement. Although the court mentions only the
latter allegation, see Maj. Op. at 2-3, the arbitrator explicitly
acknowledged both claims in her opinion. Despite reciting the
union’s unfair labor practice charges nearly verbatim, the
arbitrator nonetheless framed the issue before her as arising
solely under the parties’ collective bargaining agreement.
Finding no breach of that agreement, she denied the union’s
grievance. In so doing, the arbitrator offered no explanation for
failing to address the union’s unfair labor practice claim.
                                2


    When the union appealed to the Authority, arguing that the
arbitrator improperly ignored its unfair labor practice claim, the
employer countered that the arbitrator had in fact addressed the
alleged unfair labor practices, but had simply found against the
union. Ass’n of Civilian Technicians, N.Y. State Council, 60
F.L.R.A. 890, 891 (2005). Correcting this inaccurate assertion,
the Authority “agree[d] with the union that the Arbitrator did not
address whether [the employer]’s actions constituted unfair
labor practices under the Statute.” Id. Nonetheless, the
Authority upheld the arbitrator’s award, reasoning that “[i]n the
absence of a stipulation that . . . included the issue of whether
the [employer] committed any unfair labor practices, the
Arbitrator was not obligated to address and resolve whether the
[employer]’s actions violated the Statute.” Id.

     Still seeking some resolution to its unfair labor practice
claim, the union moved for reconsideration, arguing that the
statute provides for (1) a unilateral right to have an unfair labor
practice claim resolved through the grievance process and (2)
appeals to both the Authority and the U.S. Court of Appeals.
The Authority denied the motion, again citing its general policy
of deferring to an arbitrator’s framing of the issues absent an
employer stipulation. Ass’n of Civilian Technicians, N.Y. State
Council, 61 F.L.R.A. 664, 666-67 (2006) (“ACT”).

     The union petitioned for review, arguing that the Authority
had denied what the statute expressly requires: resolution of its
unfair labor practice claim. The court now dismisses the union’s
petition for lack of jurisdiction under section 7123(a)(1),
reasoning that the Authority’s order merely “involves rules
applicable to arbitration” that happened to result “in the unfair
labor practice claim’s exclusion from review.” Maj. Op. at 4.
In my view, this result ignores the facts of this dispute and
conflicts with both the statute and our precedent.
                                  3



                                 II.

     Section 7123(a)(1) allows this court to hear appeals from
Authority decisions reviewing arbitral awards if the award
“involves an unfair labor practice,” a standard we have
addressed in some depth on three separate occasions. In OEA,
we considered two separate Authority orders, finding ourselves
with jurisdiction over one order because it “necessarily
implicated” an unfair labor practice claim, but without
jurisdiction over the other because the union had pursued its
claim on a contract theory. 824 F.2d at 69, 71. In U.S. Dep’t of
the Interior v. FLRA, 26 F.3d 179 (D.C. Cir. 1994) (“DOI”), we
found ourselves without jurisdiction because the union had made
only two “passing references” to unfair labor practices and had
pursued its claim as a contract action. Id. at 183-84. And in
AFGE, Local 2510 v. FLRA, 453 F.3d 500 (D.C. Cir. 2006), we
found ourselves without jurisdiction over an Authority order that
not only failed to “engage at all with the substance of the unfair
labor practice,” but dealt solely with attorneys’ fees. Id. at 505.
Taken together, these three cases demonstrate that we have
jurisdiction to review an Authority order if (1) the aggrieved
union consistently pursued its claim as an unfair labor practice
throughout the grievance process, (2) the Authority’s order
necessarily implicates the unfair labor practice claim, and (3) the
order discusses the substance of the unfair labor practice claim
in some way. This case satisfies all three requirements.

     First, as the court correctly notes, for us to have jurisdiction,
a union must characterize and pursue its claim “as a statutory
unfair labor practice, not as something else.” Maj. Op. at 5
(quoting OEA, 824 F.2d at 66). In language directly applicable
to this case yet absent from the court’s opinion, we stated in
OEA that “[i]t is clear that if a dual-natured type of complaint
were pursued as a statutory unfair labor practice, any FLRA
                                 4


order would be subject to judicial review under section
7123(a)(1), even if the aggrieved party chose to utilize the
grievance/arbitration route.” 824 F.2d at 64 (emphases altered).
Reaffirming this principle in DOI, we stated, even more
categorically, “[i]f the aggrieved party chose to go the grievance
procedure route, but characterized its claim as a statutory unfair
labor practice, judicial review certainly would be available.” 26
F.3d at 183 (emphasis added). The central thrust of both OEA
and DOI, in other words, is that a union may not pursue its
grievance on a breach of contract theory only to transform it
belatedly into an unfair labor practice claim in an effort to obtain
judicial review.

     Here, the union did no such thing. It consistently
characterized its claim as an unfair labor practice and pursued it
as such throughout the grievance process. As noted above, the
union began its pre-hearing brief with its unfair labor practice
allegations. In her statement of the parties’ positions, the
arbitrator spent two paragraphs repeating those allegations. The
employer certainly believed the union had raised the claim, even
arguing that the arbitrator had actually decided it. The union
reasserted its unfair labor practice claim in its exceptions to the
arbitral award and pursued it again in its motion for
reconsideration. In short, the union consistently characterized
the employer’s conduct “as a statutory unfair labor practice, not
as something else.” Maj. Op. at 5 (quoting OEA, 824 F.2d at
66).

    Attempting to minimize this fact, the court analogizes this
case to DOI where, as here, 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.” Maj. Op. at 7 (quoting DOI, 26 F.3d at
                                5


184). This is all true, but irrelevant. The unions in DOI, unlike
the union here, failed to pursue their claims as statutory unfair
labor practices. Instead, the unions insisted their case was
“governed by simple contract law,” and included only two
“essentially gratuitous” references to unfair labor practices in
their post-hearing briefs. DOI, 26 F.3d at 183-84. That both the
arbitrator and Authority characterized the case as a contractual
dispute is therefore hardly surprising.

     Second, our case law makes clear that for us to have
jurisdiction the Authority’s order must “necessarily implicate[]”
an unfair labor practice claim. OEA, 824 F.2d at 68. This
language is also conspicuously absent from the court’s opinion,
even though it is the test we adopted in OEA (borrowing the
standard from then-Judge Kennedy’s opinion in U.S. Marshals
Service v. FLRA, 708 F.2d 1417, 1420 (9th Cir. 1983)), and have
repeated in every subsequent case presenting this jurisdictional
question. OEA, 824 F.2d at 67-68 (“[T]he standard is that a
statutory unfair labor practice must be either an explicit ground
for, or be necessarily implicated by, the Authority’s decision.”)
(footnote omitted); see also AFGE, Local 2510, 453 F.3d at 504;
U.S. Dep’t of Treasury, U.S. Customs Serv. v. FLRA, 43 F.3d
682, 687 n.5 (D.C. Cir. 1994); DOI, 26 F.3d at 183.

     Here, the Authority’s order “necessarily implicated” the
union’s unfair labor practice claim by effectively terminating it.
Put another way, before the Authority issued its order, the union
had a viable unfair labor practice claim, albeit one that the
arbitrator had inexplicably ignored. After the Authority ruled,
however, the union’s claim was irretrievably lost. Because
section 7116(d) forbids the union from re-filing its allegations
with the General Counsel, the Authority’s order represents the
last word on the union’s claim. See AFGE, Local 1411 v. FLRA,
960 F.2d 176, 178 (D.C. Cir. 1992) (noting that the purpose of
section 7116(d) is “to preclude duplicative proceedings by
                                  6


requiring an aggrieved party to make an election of remedies”
when “the same facts and the same decision are involved”).
That the Authority grounded its decision in arbitration procedure
does nothing to change the order’s ultimate effect on the union’s
unfair labor practice claim. In short, by disposing of the union’s
claim for all time, the Authority’s order must “necessarily
implicate[]” it. OEA, 824 F.2d at 67-68.

     To reach the opposite conclusion, the court relies heavily on
AFGE, Local 2510, but that case provides a telling contrast to
the issue presented here. In AFGE, Local 2510, the arbitrator
had decided the union’s unfair labor practice claim in the
union’s favor, and the employer declined to challenge that ruling
before the Authority, instead appealing only the arbitrator’s
award of attorneys’ fees to the union. 453 F.3d at 502-03. As
a result, the Authority’s order “addressed only the fee award.”
Id. at 504. We dismissed the union’s petition for lack of
jurisdiction, emphasizing that the Authority’s order—not the
arbitral award—must involve an unfair labor practice for us to
have jurisdiction. Id. at 505. Here, of course, the arbitral award
includes no resolution of the union’s statutory claim, but that is
the entire point of the union’s appeal. Unlike its counterpart in
AFGE, Local 2510, the union here does not attempt to bootstrap
an ancillary issue onto a previously decided unfair labor practice
claim in order to obtain judicial review. Rather, the union
argues that it deserves resolution of its statutory claim in the first
instance. Thus, although we concluded that the Authority’s
order in AFGE, Local 2510 did not “necessarily implicate” an
unfair labor practice claim, id. at 504, the facts support the
opposite conclusion here.

    Finally, as the court points out, we will review an
Authority’s order when the “substance of the unfair labor
practice” is “‘discussed in some way in, or [is] some part of, the
Authority’s order.’” Maj. Op. at 5 (quoting AFGE, Local 2510,
                                 7


453 F.3d at 505). Here, the Authority argues that it never
“assess[ed] the substance of the alleged [unfair labor practice]
at all in the instant case.” Resp’t’s Br. 20 (emphasis added). In
a similar vein, the court states that “the Authority did not engage
in any substantive discussion of the union’s unfair labor practice
claim in its order.” Maj. Op. at 7 (emphasis added). The record
shows otherwise.         In denying the union’s motion for
reconsideration—in an order challenged here—the Authority
included the following substantive discussion of the union’s
claims:

        Even if we were to address the alleged unfair
        labor practices, we would nonetheless find
        that the denial of the grievance was not
        deficient. Specifically, the Arbitrator found
        that the [employer] did not breach the
        agreement. Authority precedent establishes
        that unless there is a breach of an agreement,
        there can be no repudiation in violation of the
        Statute, as was alleged by the union at
        arbitration. See, e.g., Dep’t of the Air Force,
        375th Mission Support Squadron, Scott Air
        Force Base, Ill., 51 F.L.R.A. 858, 862 (1996)
        (the first element that must be established to
        support an allegation of repudiation in
        violation of the Statute is that the respondent’s
        actions constituted a breach of the agreement
        that was clear and patent). In addition, the
        record establishes that the Arbitrator enforced
        lawful, agreed-upon limits on the obligation to
        bargain and that, consequently, the
        [employer]’s actions did not constitute a
        failure to bargain. See AFGE Local 3529, 52
        F.L.R.A. 1313, 1319-20 (1997).
                                8


ACT, 61 F.L.R.A. at 666 n.4. The Authority thus addressed both
of the union’s unfair labor practice allegations. To be sure, the
Authority’s discussion does not amount to a decision on the
merits of the union’s claim, but “something less than treatment
‘on the merits’ is required” for us to have section 7123(a)(1)
jurisdiction. OEA, 824 F.2d at 71.

     Ignoring the Authority’s order denying rehearing, the court
demands more. Quoting half a sentence from OEA, it explains
that to confer jurisdiction, the Authority’s order “does need to
include some ‘sort of substantive evaluation of a statutory unfair
labor practice.’” Maj. Op. at 6 (quoting OEA, 824 F.2d at 71).
But in the portion of the sentence not quoted by the court, we
concluded that “th[e] sort of substantive evaluation” at issue in
that case “abundantly suffice[d] to satisfy the relatively
imprecise ‘involves’ standard of section 7123(a)(1).” OEA, 824
F.2d at 71 (emphasis added). Although the discussion here may
not “abundantly suffice[] to satisfy” section 7123(a)(1), it
suffices nonetheless. Not only does the Authority’s order
include a “substantive evaluation” of the union’s claim, but that
evaluation, though dictum, carries precedential weight in future
Authority proceedings. See, e.g., Def. Sec. Assistance Dev. Ctr.,
60 F.L.R.A. 292, 294 (2004) (citing Authority dicta while
analyzing a claim); U.S. Border Patrol Livermore Sector
Dublin, Cal., 58 F.L.R.A. 231, 233 (2002) (same); AFGE, Local
32, 51 F.L.R.A. 491, 502 (1995) (same).

    In sum, the union pursued its statutory claim throughout the
grievance process, the Authority’s order “necessarily
implicated” that claim by terminating it, OEA, 824 F.2d at 68,
and the Authority discussed the substance of the claim “in some
way.” AFGE, Local 2510, 453 F.3d at 505 (quoting OEA, 824
F.2d at 65). We have never demanded more to find jurisdiction.
                                 9


                                III.

     For the foregoing reasons, I would find section 7123(a)(1)
jurisdiction and go on to review the Authority’s conclusion that
an arbitrator has no obligation to resolve a union’s unfair labor
practice claim unless an employer stipulates to that claim. The
union argues that under a plain reading of the statute, “a union
that raises an [unfair labor practice] claim as a grievance has a
unilateral right to demand that the claim be resolved by binding
arbitration.” Pet’r’s Opening Br. 24.

     The union’s textual argument proceeds as follows. Section
7116(d) expressly allows unions to raise unfair labor practice
claims in grievance procedures, and section 7121(a)(1), in turn,
requires those procedures to be processes for “resolving
grievances” (emphasis added).              Then, citing section
7121(b)(1)(C)(iii), the union argues that because either party to
a dispute may demand that “any grievance not satisfactorily
settled . . . be subject to binding arbitration,” the statute grants
unions the right to have unfair labor practice claims “resolved”
through arbitration. According to the union, allowing a statutory
claim to vanish if an employer refuses to stipulate to it conflicts
with the statute because the grievance procedure would then fail
to “resolve” the grievance.

     The union reads the statute correctly. “Resolve” means “to
reach a decision about” or “settle.” Webster’s Third New
International Dictionary 1933 (1993). Under the Authority’s
“no obligation” rule, however, the grievance process may end
without deciding a union’s unfair labor practice claim or settling
it in any meaningful sense. The claim can simply evaporate.

    The Authority offers no response to the union’s textual
argument. Instead, it argues that not all unfair labor practice
claims are ultimately “resolved” under the statute. As the
                               10


Authority points out, if the General Counsel declines to issue a
complaint upon a union’s request, the issue never reaches the
Authority for review. The statute, however, requires the General
Counsel to give the union a written statement of reasons for
declining to issue a complaint. See 5 U.S.C. § 7118(a)(1) (“In
any case in which the General Counsel does not issue a
complaint because the charge fails to state an unfair labor
practice, the General Counsel shall provide the person making
the charge a written statement of the reasons for not issuing a
complaint.”). Under the Authority’s rule, unions choosing to
pursue their unfair labor practice claims through
arbitration—their right under the statute—can be denied even
this.

    At bottom, the Authority argues that the arbitrator resolved
the union’s claim by ignoring it. Because I believe the statute
requires more, I would grant the union’s petition for review and
remand the case to the Authority with instructions to return it to
the arbitrator for a decision on the merits of the union’s unfair
labor practice claim.

                               IV.

     Contrary to the court’s view—and to return to the
jurisdictional issue—my disposition would further Congress’s
strong pro-arbitration policy by guaranteeing unions some
resolution of their unfair labor practice claims through grievance
procedures. The court’s decision, by contrast, will discourage
unions from choosing the very grievance and arbitration process
that Congress seeks to promote. Eager to preclude judicial
review, employers will have no incentive to stipulate to a
union’s unfair labor practice claim in arbitration and every
reason not to do so. Unions, in turn, will justifiably fear that
arbitrators will ignore their properly raised statutory claims
without explanation, rendering those claims lost for all time.
                               11


The result is easy to predict: instead of seeking arbitration,
unions will file unfair labor practice charges with the General
Counsel. Indeed, unions would be wise to follow this course,
for if the General Counsel declines to pursue their unfair labor
practice claims, they will at least receive a written explanation.
As this case makes abundantly clear, however, unions choose
the grievance track at their peril.

     Finally, my proposed disposition, unlike the court’s
decision, would ensure “a single, uniform body of case law
concerning unfair labor practices.” AFGE, Local 2510, 453 F.3d
at 505. If, on remand, the arbitrator ruled against the union, the
union could appeal to the Authority. Judging from the merits
discussion in the Authority’s denial of the union’s motion for
reconsideration, I think it safe to assume that the Authority
would find against the union. If the union sought review here,
we could then perform our statutory function by ensuring that
the Authority had not left “the path of the law of unfair labor
practices” while “escap[ing] the review that would bring it back
to the straight and narrow.” Id. By short-circuiting this process,
the court denies us that opportunity.
