Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT.
Senior District Judge VAN PELT concurs except as to Proposal III, as to which he would reverse.
J. SKELLY WRIGHT, Circuit Judge:
The Civil Service Reform Act of 1978
These consolidated cases
Labor relations within the federal civil service are governed by Title VII of the Civil Service Reform Act of 1978. Because these cases are among the first under that statute, see Nat'l Federation of Federal Employees v. FLRA, 652 F.2d 191 (D.C.Cir.1981); American Federation of Gov't Employees v. FLRA, 653 F.2d 669 (D.C.Cir.1981), it might be useful to sketch the background against which we consider the issues presented.
The questions before us arise on appeal from two decisions by the Federal Labor Relations Authority.
The FLRA has assumed its role as a successor agency to the Federal Labor Relations Council. Functioning pursuant to Executive Order 11491,
The legislative history indicates that Title VII of the Civil Service Reform Act was
The balance of statutory purposes is evidenced, not only in the legislative history, but in the text of the Reform Act. On the one side, Section 7106(a) purports to define certain reserved rights of management:
It is agreed that a union proposal intruding on protected management rights is not a proper subject of collective bargaining under the Act.
On the other side, the interest of employees in protecting their interests through collective bargaining is broadly recognized and protected. Federal management representatives are required to bargain in good faith over "conditions of employment" — a term that is expansively defined, subject only to express statutory exceptions, to include "personnel policies, and matters, whether established by rule, regulation, or otherwise, affecting working conditions * * *."
The possibility of binding arbitration and imposed settlement lends importance to the question whether a union contract proposal is a mandatory subject of collective bargaining under the Reform Act.
Negotiability disputes characteristically arise when the union submits a proposal for inclusion in a collective bargaining agreement. If the agency believes that the proposal is contrary to law or applicable regulation, or is otherwise nonnegotiable under the statute, it may inform the union of its refusal to negotiate. Section 7117 thereupon provides a right to appeal the agency's determination of nonnegotiability to the FLRA.
The issues before us in these cases stem from FLRA decisions concerning the negotiability of eight union proposals. They come to us in three separate appeals, involving two decisions issued by the Authority, which this court has consolidated for review.
A. No. 80-1119, Dix-McGuire
No. 80-1119 comes before us on a petition filed by the Department of Defense. In the course of its contract negotiations with the Army-Air Force Exchange Service, Dix-McGuire Exchange, Fort Dix, New Jersey (the agency), the American Federation of Government Employees, AFL-CIO, Local 1999 (the union) advanced the following proposal as a basis for collective bargaining:
The agency responded that the proposal was nonnegotiable. If adopted, it said, the proposed contract term would "so unreasonably delay and impede the exercise of the reserved right to suspend and separate employees as to negate that right and, hence, violates ... 5 U.S.C. 7106(a)(2)(A)."
Rejecting the management claim, the FLRA held the procedure to be negotiable. The FLRA based its decision on Section 7106(b)(2), which provides that the enumeration of reserved management rights contained in Section 7106(a) "does not preclude the negotiation of procedures which management will observe in exercising those rights."
B. No. 80-1351, Wright-Patterson
There are two proposals at issue in No. 80-1351, brought before us by the Department of Defense. Like those presented for review in No. 80-1358, these proposals were submitted by the American Federation of Government Employees, AFL-CIO (the union) during contract negotiations between the union and the Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio (the agency). The agency contended that a substantial number of the proposals would infringe protected management rights and therefore lay beyond the scope of the duty to bargain. Pursuant to 5 U.S.C. § 7117(c), the union appealed this allegation of nonnegotiability to the FLRA. Of the 16 proposals contested before the Authority, the FLRA held that eight were negotiable, that seven were not, and that one was partly negotiable and partly nonnegotiable.
Proposal III provides:
In contesting the negotiability of the proposal the Defense Department argued that its adoption would infringe reserved management rights. According to the agency's construction, Section 7106(a)(2)(A) reserves a management right to make personnel assignments that may not be limited; management, it says, must retain full discretion to assign employees on any basis that it chooses.
Union Proposal XIV dealt with temporary promotion to "encumbered" positions:
The agency challenged this proposal as incompatible with its right under Section 7106(b)(1) to determine "the numbers, types, and grades of employees or positions * * *."
C. No. 80-1358, Wright-Patterson
The five proposals underlying No. 80-1358 were presented by the American Federation of Government Employees, AFL-CIO (the union) during the same contract negotiations with the Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio (the agency) as those involved in No. 80-1351. These, however, were held by the FLRA to be nonnegotiable, and it is the union that brings this appeal.
Union Proposals IV, V, VI, and VII would all require management to make certain employee assignments on the basis of seniority. Proposal IV would compel the agency to rotate "details" to lower grade positions among qualified and available employees in inverse order of seniority.
The FLRA upheld the agency's claim of nonnegotiability with regard to each of these proposals. All, it concluded, infringed management rights to make personnel assignments protected under Section 7106(a). The crucial failure of Proposals IV, V, VI, and VII, in the Authority's view, lay in their elimination of agency "discretion" in making assignments.
Union Proposal XIII specified procedures for determining certain personnel assignments following a reduction in force.
The disputes at the core of these cases issue primarily from the contested relationship between Sections 7106(a) and 7106(b) of Title VII of the Civil Service Reform Act of 1978. In the case of each of the disputed union proposals, the management parties purport to identify some infringement of a management right protected under Section 7106(a). Again in each case, the union responds that Section 7106(a) states explicitly that its own terms are "subject to subsection
Analysis of the competing arguments must begin with the language of the statute itself. See, e. g., Ernst & Ernst v. Hochfelder, 425 U.S. 185, 197, 96 S.Ct. 1375, 1382, 47 L.Ed.2d 668 (1976); Zerilli v. Evening News Ass'n, 628 F.2d 217 (D.C.Cir.1980). Although that language possesses troubling ambiguities, it does, we think, make clear the intent of Congress, expressed in a distinction between negotiable procedures and management's nonnegotiable substantive authority. There are substantive rights reserved to management under Section 7106(a), subject to — but only to — procedures to be negotiated under Section 7106(b).
The difficulty arises, of course, because the distinction between procedure and substance is not always crisp.
The need for an interpretive standard of this kind accounts for the various formulae enunciated by the FLRA and for those urged by the parties on this court. In Dix-McGuire, No. 80-1119, the Authority held that proposals structured in procedural language would be negotiable unless the effect of their adoption would be to stop management from "acting at all."
Despite the inherent ambiguities of the distinction between procedure and substance, and the attendant difficulties in its application, the intent of Congress cannot be ignored. It is the task of the FLRA, authorized by statute to "provide leadership" in implementing the labor-management chapter of the Civil Service Reform Act,
In this regard, we think it appropriate to note what we perceive as a difference in kind among the cases calling for application of the statutory distinction between negotiable procedures and reserved substantive rights. There are, on the one hand, cases in which proposals cast in procedural language impinge on substantive management decisions by specifying the criteria pursuant to which decisions must be made. There are, on the other, more nearly "pure" procedures, which have less direct substantive repercussions — for example, procedures for use in determining which employees possess characteristics identified by management as appropriate criteria for choice. In view of this difference, we proceed to our discussion and decision of these consolidated cases without assuming beforehand that a standard found appropriate for one of these classes must also be applied to the other.
A. No. 80-1119, Dix-McGuire
The sole negotiability issue in Dix-McGuire involves a proposed union contract term under which no employee could be removed or suspended from his job until completion of the review procedures provided under a collective bargaining agreement.
As the FLRA recognized, the plain language of the statute strongly supports the union's position. Although Section 7106(a) asserts that nothing in the Reform Act "shall affect the authority of any management official" to hire, and take disciplinary action, it also provides that the terms of subsection (a) are "[s]ubject to subsection (b) * * *."
Before affirming this conclusion, however, we — like the FLRA — must take account of the management claim that the proposal in this case was not properly "procedural" within the meaning of the statute, because the effect of its adoption would be to "eviscerate" management rights enumerated in Section 7106(a). The FLRA weighed this argument, but concluded that this threatened effect would not occur. "[T]he procedural requirement established by the proposal," the Authority held, "relates only to when the suspension or removal may be effectuated, not to whether the agency ultimately will be able to implement those actions."
In its brief in this court the agency rests its claim for reversal of the FLRA's decision largely on an attack on this asserted rule of decision: the holding that procedural proposals are negotiable under the statute unless their adoption would stop the agency from "acting at all." In the context of this case — one involving a procedural proposal that does not directly mandate substantive criteria pursuant to which management must act — we find the attack to be unconvincing.
We note at the outset that the "acting at all" standard is a reasonable and natural construction of the statutory language, rendered by the agency given responsibility for administering the statute
In its opinion below the FLRA justified its adoption of the "acting at all" standard largely by citation to a single passage in the report of the House-Senate conference committee that reported Title VII of the Civil Service Reform Act in the form in which it became law.
In our view, analysis restricted to this text alone reveals an inescapable ambiguity. The agency contends that the conference intended the "acting at all" standard to be applied to bar negotiations so protracted as to prevent management action; the substantive negotiability of union proposals, it says, should be judged against a standard of whether their adoption might cause the exercise of management rights to be unreasonably delayed. The FLRA, on the other hand, argues that the conference intended the "acting at all" test to apply to proposed contract provisions as well, as the ultimate measure of their negotiability under the statute.
Although the quoted passage is ambiguous at best, we believe that the legislative history, taken as a whole, gives stronger support to the view of the FLRA than to that of the agency. We reach this conclusion after review of the legislative approaches to the body of case law that had grown up under the FLRA's predecessor agency, the Federal Labor Relations Council. Prior to the passage of the Civil Service Reform Act, collective bargaining between employees and the federal agencies was governed by Executive Order. Like Section 7106(a) of the Reform Act, Section
As Congress began its deliberations over proposals to enact civil service reform legislation, the status of the existing case law became a focus of concern. The Carter Administration drafted proposed statutory language that would have placed the "provisions, policies and approaches of Executive Order 11491" into law,
As illustrated by the reference to the "case law," the Senate bill clearly intended to adopt the Blaine principle that negotiation would not be permitted — that a proposal would be deemed nonnegotiable — if it might produce "certain [unacceptable] consequences," such as adoption of procedures resulting in unreasonable delay.
The House of Representatives dealt very differently with the Administration proposal to import the "unreasonable delay" standard into the new law. In the House "management
Two facts about this statement deserve comment. First, Representative Udall obviously contemplated negotiation over disciplinary procedures, such as those at issue in No. 80-1119. Second, the Udall amendment made no reference to "unreasonable delay." Indeed, Representative Udall actively opposed unsuccessful amendments that would have retained this legal standard.
The House-Senate conference committee adopted the House version of Section 7106 — the version introduced by Representative Udall — without revisions.
As noted, the management parties argue that the FLRA has misread the conference report. They contend that the deleted Senate provision and the explanatory language of the committee addressed "the issue of the time consumed in negotiations, not the time necessary to complete the negotiated procedures once the procedures are agreed upon."
The agency advances other arguments why this court should reject the "acting at all" standard enunciated by the FLRA. For example, the agency argues that it is implausible to think that Congress would pass a law countenancing, not merely delay, but "unreasonable delay," in implementation of management decisions.
The conference report was "agreed to" by both the full Senate and the full House.
The agency also offers arguments that the FLRA's "acting at all" standard must
The agency contends that toleration of lengthy delays prior to management removal of employees would be inconsistent with the statutory authority of management to "take whatever actions may be necessary to carry out the agency mission during emergencies."
The agency similarly argues that toleration of delays is inconsistent with the statutory command that any "negotiated grievance procedure * * * shall provide for expeditious processing * * *."
Finally, the agency lodges an objection that the FLRA failed to consider relevant factors before reaching its challenged decision. This claim rests principally upon 5 U.S.C. § 7135(b), which states in pertinent part that "decisions issued under Executive Order[ ] 11491 * * * shall remain in full force and effect * * * unless superseded by specific provisions of this chapter or by regulations or decisions issued pursuant to this chapter." As construed by the agency, Section 7135(b) establishes that the decisions of the Federal Labor Relations Council — including those holding union proposals nonnegotiable under an "unreasonable delay" standard
Our review of the legislative history should make obvious the weakness of this argument. The language of Section 7106 differs in important and relevant aspects from that of the parallel Section 12(b) of Executive Order 11491.
B. Nos. 80-1351 and 80-1358, Wright-Patterson
Five of the seven union proposals at issue in Nos. 80-1351 and 80-1358 involve procedures that would have conditioned certain job assignments at least partly on an employee's seniority. These proposals obviously implicate substantive concerns. They identify a substantive criterion — namely, length of employment — on the basis of which personnel assignments would be made.
In weighing the negotiability of these proposals under Section 7106 the FLRA applied what the parties have characterized in this court as a "direct interference" test. Under this standard, as explicated by the Authority, a proposal for employee selection procedures would be held nonnegotiable if its implementation would "directly interfere with the agency's basic right to assign employees [as reserved] under section 7106(a)(2)(A) * * *."
We find no necessary incompatibility between the two approaches. Proposals to establish seniority as a basis for personnel assignments stand close to the uncertain border between procedure and substance.
In developing and applying the "direct interference" test, the FLRA appears to have reasoned from the premise that "[t]he right to assign employees in the agency under section 7106(a)(2)(A) of the Statute is more than merely the right to decide [whether] to assign an employee"
The union vigorously disputes this premise. It argues that "the authority to assign in [Section] (a)(2)(A) means just what the plain language states, and nothing more: the authority to assign — the legal entitlement to take an official personnel action."
The union's constrictively literalist construction of Section 7106(a) would permit collective bargaining over literally all personnel qualifications, no matter how essential to successful job performance, and would allow contractual requirements of selection based on a scaled ranking. We find this interpretation to be unsupportable. It
The Authority's construction of the statutory language, and its application of that construction to the proposals before it, accord far better with the teaching of these canons. Lacking clear guidance in the statutory language, the FLRA reasoned, consistent with the statute's purpose and its legislative history, that the right to establish personnel standards and qualifications was implicit in the reserved management right to make assignments: "An agency chooses to assign an employee to a position so that the work of that position will be done. Under section 7106(a)(2)(A) of the Statute, the agency retains discretion as to the personnel requirements of the work of the position * * *."
The FLRA's decisions on the seniority proposals before it followed logically from its determination that Section 7106(a) protected the agency's right to exercise discretion at the conclusion of procedures to test and quantify employee qualifications. Union Proposals IV, V, VI, and VII would each have compelled selection of a particular individual, based on seniority, at least in some instances. Once the agency had "determined the particular qualifications and skills needed to perform the work of the position to which the employee will be assigned, and identified the employees in the unit who meet those requirements and would be available for assignment, selection
Union Proposal III was subjected to an identical analysis. It, however, was held negotiable because it reserved to the agency the option of using "competitive procedures" to make its selections. As defined in the Federal Personnel Manual, "competitive procedures" retain the agency's right to "select or not select from among a group of best qualified candidates."
Under the circumstances presented by this case, we believe that the FLRA's decisions concerning Proposals III, IV, V, VI, and VII must be upheld. We begin with the recognition that courts must yield great deference to an interpretation of a statute by the agency entrusted with its administration. See, e. g., Griggs v. Duke Power Co., 401 U.S. 424, 433-434, 91 S.Ct. 849, 854-855, 28 L.Ed.2d 158 (1971); United States v. City of Chicago, 400 U.S. 8, 10, 91 S.Ct. 18, 20, 27 L.Ed.2d 9 (1970); Udall v. Tallman, 380 U.S. 1, 4, 85 S.Ct. 792, 795, 13 L.Ed.2d 616 (1965). "Particularly is this respect due when the administrative practice at stake `involves a contemporaneous construction of a statute by the [persons] charged with the responsibility of setting its machinery in motion, of making the parts work efficiently and smoothly while they are yet untried and new.'" Power Reactor Development Co. v. Int'l Union of Elec., Radio & Machine Wkrs, 367 U.S. 396, 408, 81 S.Ct. 1529, 1535, 6 L.Ed.2d 924 (1961), quoting Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 315, 53 S.Ct. 350, 358, 77 L.Ed. 796 (1933), in turn quoted in Nat'l Federation of Federal Employees v. FLRA, supra, 652 F.2d at 193, and in Udall v. Tallman, supra, 380 U.S. at 16, 85 S.Ct. at 801. The surface ambiguity of the central statutory distinction provides a further reason for us to defer to the considered judgment of the Authority. As we explained above, the task of distinguishing negotiable procedures from management's reserved substantive authority involves questions of judgment and balance, about which reasonable people could easily differ. And Congress intended the needed judgments to be made, not by this court, but by the Authority. "To sustain the Commission's application of [a] statutory term, we need not find that its construction is the only reasonable one, or even that it is the result we would have reached had the question arisen in the first instance in judicial proceedings." Unemployment Compensation Comm'n v. Aragon, 329 U.S. 143, 153, 67 S.Ct. 245, 250, 91 L.Ed. 136 (1946), quoted in Udall v. Tallman, supra, 380 U.S. at 16, 85 S.Ct. at 801. As the Supreme Court has stated repeatedly, "[T]he construction of a statute by those charged with its execution
We find no compelling indications of error in the cases before us. On the contrary, the Authority's interpretation of the statute — as reserving a limited management discretion in employee selection — is entirely consistent with the admonition that "[t]he provisions of [Title VII of the Civil Service Reform Act] should be interpreted in a manner consistent with the requirement of an effective and efficient Government."
As construed by Representative Udall, "The intent of this provision is to preserve as bargainable * * * the standards, criteria, and procedures for establishing promotion certificates, while ensuring management's right to make the actual selection from the certificate, or to make the appointment from any other appropriate source."
We are untroubled by the agency's argument that the FLRA was barred from reaching its decisions without according deference to the body of decisional law that
The FLRA held Union Proposal XIII to be nonnegotiable for essentially the same reasons that it had rejected Proposals IV, V, VI, and VII. Proposal XIII detailed procedures that would have dictated certain personnel assignments in cases involving reductions in force "unless there are persuasive mission related reasons for not doing so, in which case the employer will provide the reasons in writing to the union and to the employee."
Having upheld the Authority's interpretation of the statute as reserving a nonnegotiable agency right to exercise discretion in making personnel assignments, we cannot say that the FLRA wrongly applied that interpretive standard to Proposal XIII. The proposal's exception to mandatory assignment in cases involving "persuasive mission related reasons" might have permitted the FLRA to draw a different conclusion about the scope of discretion that it reserved to management and thus about its negotiability. As we have already said, however, "To sustain the [Authority's] application of [a] statutory term, we need not find that its construction is the only reasonable one, or even that it is the result we would have reached had the question arisen in the first instance in judicial proceedings." Unemployment Compensation Comm'n v. Aragon, supra, 329 U.S. at 153, 67 S.Ct. at 250. We need find only that it was not arbitrary, capricious, or contrary to law.
Review of the FLRA's decision concerning Proposal XIV necessarily involves us, like the Authority, in an examination of federal personnel law and regulations, the two underlying bases for the agency's claim of nonnegotiability.
Proposal XIV concerns the circumstances in which an employee who is temporarily assigned to a higher graded position will be paid at the rate associated with the higher grade. Specifically, the proposal provides that "the employee will receive the rate of pay for the higher position to which assigned, commencing on the 31st day."
In its argument before the FLRA the agency contended that Proposal XIV was contrary to law because it would require payment of employees at grade levels to which they had not been promoted.
The agency also challenges Proposal XIV as incompatible with pertinent federal regulations.
Crucial to this argument is the assumption that applicable regulations permit temporary promotions only to existing yet vacant positions. According to the agency, "Unless truly vacant positions exist, temporary promotions require creation of new positions, which * * * cannot be occupied by two employees simultaneously."
To support its position the agency relies primarily on a 1925 opinion by the Comptroller General,
First, the Federal Personnel Manual provides expressly that an employee may be "detailed" to a nonvacant position without being "appointed to" it:
Recent decisions by the Comptroller General confirm that a position need not be vacant in order for an employee to be "detailed" to it, granted a temporary promotion for the period of the detail, and paid accordingly.
Alternatively, although we recognize that the Federal Personnel Manual distinguishes for some purposes between a "detail" and a "temporary promotion,"
Finding that the agency has failed to show that adoption of Proposal XIV would be proscribed by applicable law or regulation, we affirm the decision of the FLRA that it was a proper subject of bargaining under the Civil Service Reform Act.
For the reasons stated herein, we conclude that the challenged holdings of the FLRA in these three consolidated cases should be upheld and that its orders here before us should be enforced.
Section 7117(c) of the Civil Service Reform Act expressly imposes on the FLRA a duty to determine the negotiability of disputed proposals properly brought before it. We therefore agree with the Defense Department that the FLRA must determine whether union proposals, as they are actually drafted, satisfy the negotiability standards of the statute — standards that include consistency with applicable law and regulations. 5 U.S.C. § 7117(a)(1). The Authority may not approve a proposal not presently consistent with law by invoking the theory that the proposal will subsequently be rendered legally acceptable either by the parties or by the Impasses Panel. But we do not understand the FLRA to argue otherwise. Moreover, because the issue is not presented by the facts of the case before us, we express no opinion on the statutory authority of the Impasses Panel to determine for itself the legality of a union proposal under applicable law or regulations.
Id. at 7, Wright-Patterson JA at 183.
Id. at 8, Wright-Patterson JA at 184.
Id. at 8, Wright-Patterson JA at 184.
Id. at 11, Wright-Patterson JA at 187.
Id. at 23-24, Wright-Patterson JA at 199-200.
As the courts quickly discovered, however, there are at least two difficulties in applying the distinction. The first is simply that "procedures" are not easily cabined, the realm of "substance" not easily protected from encroachment; for "almost every procedural rule may have a substantial effect on the outcome of a case." C. Wright, supra, at 256. This difficulty apparently caused the collapse of the Supreme Court's effort, begun in Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945), to define as "substantive" any legal rule that might determine the outcome in a particular case. The outcome-determinative test simply had "no readily apparent stopping place * * *." Hart, The Relations Between State and Federal Law, 54 Colum.L.Rev. 489, 512 (1954). Yet, on the other side, lines of demarcation had to be drawn if there were to remain any nontrivial federal power to establish judicial "procedures." The second problem, as Justice Frankfurter pointed out in Guaranty Trust, supra, is that the impossibility of drawing a clear bright line between substance and procedure leads to a predictable confusion: "`[S]ubstance' and `procedure' are the same key-words to very different problems. Neither `substance' nor `procedure' represents the same invariants. Each implies different variables depending upon the particular problem for which it is used." 326 U.S. at 108, 65 S.Ct. at 1469, see Hanna v. Plumer, 380 U.S. 460, 471, 85 S.Ct. 1136, 1143, 14 L.Ed.2d 8 (1965) ("The line between `substance' and `procedure' shifts as the legal context changes.").
More recent Supreme Court cases have substantially redefined the so-called "Erie doctrine," and it is now clear that no simple litmus test will determine which "procedural" issues are governed by state and which by federal law. C. Wright, supra, at 272; see, e. g., Byrd v. Blue Ridge Rural Electric Cooperative, Inc., 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958) (federal policies concerning governance of courts properly weighed in determining whether to apply state or federal rules); Hanna v. Plumer, supra, 380 U.S. at 469-470, 85 S.Ct. at 1142-1143 (correcting "the incorrect assumption that the rule of Erie R. Co. v. Tompkins constitutes the appropriate test of the validity and therefore the applicability of a Federal Rule of Civil Procedure"). Nonetheless, courts and lawyers continue to talk in terms of a distinction between substance and procedure, and they continue to make important decisions turn upon it. For an exploration of some of the many aspects of the interrelationship between substance and procedure, see generally R. Cover & O. Fiss, The Structure of Procedure (1979).
Report of the Committee on Governmental Affairs of the United States Senate to Accompany S. 2640, S.Rep.No.95-969, 95th Cong., 2d Sess. 140, 212 (1978). S. 2640 was passed by the Senate, without relevant amendment, on August 24, 1978. 124 Cong.Rec. S14324 (daily ed. Aug. 24, 1978).
3 C.F.R. 869-870 (1966-1970 Compilation), reprinted in 5 U.S.C. app. at 258, 261 (Supp. III 1979).
These cases represented an extension of the principles underlying Veterans Administration Independent Service Employees Union and Veterans Administration Research Hospital, Chicago, Illinois, 1 FLRC 227, 230 (1972), in which the Council held that § 12(b) permitted "negotiations of procedures * * * which management will observe in [exercising § 12(b) rights], provided that such procedures do not have the effect of negating the authority reserved." In the cases in the Blaine line the Council found bargaining proposals nonnegotiable on the theory that they contained procedures that would so unreasonably delay the exercise of management's right to act under § 12(b) as to negate that right.
124 Cong.Rec. H9651 (daily ed. Sept. 13, 1978).
Representative Clay offered a similar interpretation:
124 Cong.Rec. H9638 (daily ed. Sept. 13, 1978). See also H.R.Rep.No.95-1403, supra note 81, at 60; S.Rep.No.95-969, supra note 80, at 114.
In its brief in this court, see brief for petitioners Department of Defense et al., No. 80-1351, at 22, the agency argues that the cases involving "details" are not relevant to the issue before us. It puts its argument on Chapter 312, Subchapter 4-2 of the Federal Personnel Manual:
(Emphasis added.) As construed by the agency, this provision establishes that "details" may not generally be used to effect temporary promotions to encumbered positions. Rather, it says, the provision requires creation of a second position. The flaw in this argument lies apparent in the language of the regulation on which it rests. Although establishment of a second position may sometimes be "appropriate," we are unable to conclude that it is mandatory. We note that the recent decisions of the Comptroller General cited supra, which have upheld "temporary promotions" to "detailed" employees and increased pay based thereon, have expressed no worry about the legal propriety of detailing employees to encumbered positions. Details are, of course, limited to 120 days unless prior approval is obtained from the Office of Personnel Management, see Federal Personnel Manual, ch. 300, subch. 8-4e.