ASSOCIATION OF CIVILIAN TECHNICIANS, NEW YORK STATE COUNCIL, Petitioner v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent, 378 U.S. App. D.C. 335

Opinion for the Court filed by Circuit Judge SENTELLE. Dissenting opinion filed by Circuit Judge TATEL. 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(l), -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 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. 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 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)(l)(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 “preferf] 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. 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).

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 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. 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 ”)).