DEPT. OF DEFENSE, ETC. v. FED. LABOR REL. AUTH.

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 19781 requires management officials of the federal agencies to bargain with employee representatives over conditions of employment.2 But the duty to engage in collective bargaining is not absolute.3 Section 7106 of the Reform Act enumerates certain reserved rights of management that cannot be lawful subjects of negotiation.4 It is permissible to bargain over the "procedures" by which those rights are exercised, but not over the substance of the rights themselves.

These consolidated cases5 raise important questions about the scope of management's duty to bargain under Section 7106. The issue arose when agency management refused to bargain over various union proposals for the terms of collective bargaining agreements. The negotiability of each of the proposals was considered in the first instance by the Federal Labor Relations Authority (FLRA or Authority). The Authority held three of the contested proposals to be mandatory subjects of collective bargaining; it found five to be excluded from the statutory obligation to bargain under the terms of Section 7106. We affirm the Authority in each of its holdings.

I

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.

A.

The questions before us arise on appeal from two decisions by the Federal Labor Relations Authority.6 An independent agency within the Executive Branch,7 the FLRA was established under Reorganization Plan No. 2 of 1978.8 It was continued under and administers the labor relations section of the Civil Service Reform Act, Title VII. Its role is analogous to that of the National Labor Relations Board under the National Labor Relations Act.9 The Civil Service Reform Act invests the Authority with both rulemaking and adjudicatory powers.10 Among its specific mandates, the FLRA possesses authority to determine appropriate units for labor organization and bargaining,11 to conduct representation elections,12 to adjudicate unfair labor practice complaints,13 and to resolve exceptions to arbitrators' awards.14 With only minor exceptions, final orders of the Authority are subject to review in the Courts of Appeals.15 The Authority may petition any appropriate Court of Appeals for enforcement of its orders.16

The FLRA has assumed its role as a successor agency to the Federal Labor Relations Council. Functioning pursuant to Executive Order 11491,17 issued by President Nixon in 1969, the Council was composed of three federal management officials: the Chairman of the Civil Service Commission, the Secretary of Labor, and the Director of the Office of Management and Budget. Its decisions were not subject to judicial review. The general framework for collective bargaining administered by the Council dated from 1962, the year in which Executive Order 10988,18 issued by President Kennedy, initially established a program of labor-management negotiations for federal employees.

B.

The legislative history indicates that Title VII of the Civil Service Reform Act was intended to serve a variety of purposes. Congress sought at least in part to strengthen the authority of federal management to hire and to discipline employees.19 Representative Udall, who drafted the amendment that essentially became the labor relations chapter of the Reform Act, said explicitly that "one of the fundamental purposes of this bill is to make it easier and not harder to discharge incompetent employees * * *."20 But the Reform Act also aimed to strengthen the position of employee unions in the federal service. The statutory statement of congressional purpose asserts that "protection of the right of employees to organize [and] bargain collectively" "safeguards the public interest," "contributes to the effective conduct of public business," and "facilitates and encourages the amicable settlements of disputes * * *."21 Consistent with this view, the Reform Act replaced the Federal Labor Relations Council, which had been criticized as "defective" because its members "come exclusively from the ranks of management,"22 with an independent and bipartisan FLRA. There was no suggestion that employee unions might not seek procedural protections against arbitrary or mistaken employee discharges. On the contrary, Representative Udall stressed that he intended his amendment "to meet some of the legitimate concerns of the Federal employee unions as an integral part of what is basically a bill to give management the power to manage and the flexibility that it needs."23 Other members articulated nearly identical sentiments during the floor debates. Endorsing the Udall amendment, Representative Ford agreed that "while considering the increased powers for management, we always had in mind that we would put together a totality here * * * that we hoped would represent a fair package of balanced authority for management, balanced with a fair protection for at least the existing rights the employees have."24

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.26

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 * * *."27 Even with regard to reserved management rights, the Act authorizes collective bargaining over the "procedures which management officials of the agency will observe in exercising [their] authority * * *."28 Nor is the duty to bargain one that is lacking in practical effect. Although federal employees have no legal right to strike, management must make good faith efforts to reach agreement with employee representatives.29 Where bargaining fails to produce an accord, the Act provides for binding arbitration by the Federal Service Impasses Panel,30 or, if both parties agree and the procedure is approved by the Panel, by an outside arbitrator.31

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.32 Procedures for resolving this question are provided by Section 711733 and by regulations issued by the FLRA.34

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.35 The FLRA is required to decide the negotiability issue at the earliest possible date, issuing a written decision containing specific reasons for sustaining or setting aside the agency's allegation of nonnegotiability.36 The FLRA's decision addresses only the negotiability of the union proposal under the Reform Act. It neither considers the merits of the proposal nor orders the agency to agree to it. If the proposal is found negotiable, the Authority holds only that the agency must bargain in good faith upon the union's request.

II

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.37

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)."39 The union appealed this determination to the Authority.

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."40 The Authority construed this section to license collective bargaining over proposed "procedures" for the exercise of management rights "except to the extent that * * * negotiations would prevent agency management from acting at all."41 Although the arbitration process provided in the union proposal did not contain an express time limit, the FLRA found that the agency had failed to establish that its adoption would make it impossible for the agency to implement disciplinary actions.42 The proposal was therefore negotiable under the "acting at all" standard adopted by the Authority.

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.43 The two proposals at issue in No. 80-1351 are union Proposals III and XIV, both of which were held negotiable by the FLRA.

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.45 The FLRA rejected this argument. The Authority recognized that the right to make assignments encompasses more than the narrow right to decide whether or not to assign that particular employee identified by some agreed set of procedures: "Under section 7106(a)(2)(A) of the Statute, the agency retains discretion as to the personnel requirements of the work of the position, i. e., the qualifications and skills needed to do the work, as well as such job-related individual characteristics as judgment and reliability. Therefore, the right to assign an employee to a position includes the discretion to determine which employee will be assigned."46 Nevertheless, the Authority found the union proposal to be negotiable. The reason lay in the proposal's authorization of competitive selection procedures.47 As defined in the Federal Personnel Manual, competitive procedures preserve "management's right to select or not select from among a group of best qualified candidates."48 According to the FLRA, this reservation of management discretion brought the union proposal within the statutory duty to bargain: "Only if the agency chooses not to use competitive procedures must it select [an] individual on the basis of seniority. Because Union Proposal III preserves in this manner the agency's discretion to select, the proposal does not directly interfere with the agency's basic right to assign employees under section 7106(a)(2)(A) of the Statute."49

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 * * *."51 The incompatibility arises, it argued, because an employee cannot be paid for a position unless he has actually been promoted to it. Because two persons cannot hold the same position, the agency could not temporarily pay an employee at a higher rate without either assigning him to an already vacant position or creating a new one; and requiring management to do this, the agency asserted, would violate its reserved right to determine the number and grades of positions. The FLRA agreed with the agency that the law requires promotion as a prerequisite to increased pay. But the Authority found no barrier to temporary promotions of employees to encumbered but temporarily vacant positions.52 It therefore concluded that the proposal could be implemented without the Air Force being required to create new positions.53 Having rejected the agency's main objections, the Authority held Proposal XIV to be negotiable.

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.54 Proposal V, dealing with "loans" of employees to meet temporary or emergency needs outside their usual areas of employment, would similarly dictate selection of the least senior employees with requisite skills.55 Proposal VI mandates seniority as a selection criterion for temporary assignments outside the bargaining unit "[w]here conditions are less at the receiving location than is provided for by this contract * * *."56 And Proposal VII would force the agency, in the absence of a volunteer for permanent reassignment from one duty station to another, to select the person to be assigned on an inverse seniority basis.57

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.58 "Discretion," it found, was "an essential part" of the package of rights reserved to management under Section 7106(a).59 "In thus compelling the selection of a particular individual for * * * assignment," the FLRA held, Union Proposals IV, V, VI, and VII "each directly interfere[d] with" a reserved right of management.60

Union Proposal XIII specified procedures for determining certain personnel assignments following a reduction in force.61 It would normally have required the agency to act on the basis of employee preferences. In rejecting the proposal as nonnegotiable the FLRA reiterated its view that "the right of the agency to assign employees includes discretion as to the selection of the particular employee to be assigned."62 Because Proposal XIII eliminated such discretion, the Authority held it incompatible with the management rights reserved under Section 7106(a)(2)(A) and therefore outside the scope of the duty to bargain.

III

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 (b) * * *." And subsection (b), Section 7106(b), clearly states: "Nothing in this section shall preclude any agency and any labor organization from negotiating * * * procedures which management officials of the agency will observe in exercising any authority under this section * * *."63 Because its proposals are cast in procedural terms, the union finds them compulsory subjects of bargaining under the statute.

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.64 Union proposals establishing "procedures" for employee selection illustrate the uncertain boundary between the categories. Selection on the basis of seniority, for example, defines a procedure for the exercise of management's right to hire or promote. But it is equally true that a proposal requiring selection based on seniority both establishes the substantive criterion pursuant to which selection will occur and identifies the particular employee to be chosen. Unless procedure is to be permitted to swallow substance entirely, it therefore becomes necessary to inquire into the range of proposals to be deemed "procedural" within the contemplation of the statute.

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."65 In so doing it rejected the argument of the agency, which proposed to draw a different line between procedure and substance. The agency suggested that a proposal ceased to be procedural within the intent of the law if it was of such a character as to "unreasonably delay" management action.66 In the Wright-Patterson cases the FLRA again undertook to draw a line between proposals that are properly procedural within the meaning of the statute and those that impinge on substantive agency authority. The Authority held in these cases that various proposals advanced by the union were not negotiable, despite their being expressed in procedural terms, because their adoption would "directly interfere"67 with reserved management rights to make decisions of substance. The union now contests this standard, insisting on the propriety of the "acting at all" test propounded by the Authority in Dix-McGuire. It also argues that the Authority erred in applying different standards in the two cases.68

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,69 to develop workable standards consistent with the Act's underlying policies and intent.

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.

IV

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. Management objected that the proposal invited procedural delays incompatible with its reserved authority under Section 7106(a). Overruling this objection, the FLRA upheld the negotiability of the proposal.

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) * * *."70 And subsection (b) clearly states that "[n]othing in this section" — which includes subsection (a), on which management's argument is based — "shall preclude any agency and any labor organization from negotiating * * * procedures which management officials of the agency will observe in exercising any authority under this section * * *."71 The language of Section 7106 thus seems to establish a hierarchy, in which the terms of subsection (b) hold priority over those of subsection (a). And the union proposal in this case, involving procedures to be followed prior to the exercise of management's right to discharge and discipline employees, appears to fall plainly within the language of Section 7106(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."72 The mere possibility of delay would not take a proposal outside the statutory obligation to negotiate. The test of negotiability, the FLRA held, was whether a union proposal would, if adopted, prevent agency management from "acting at all."73

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 statute74: The management power to act that is protected by Section 7106(a) may be limited by procedures under Section 7106(b), but only so far as the procedures do not have the effect of eliminating management authority by preventing its "acting at all."

Moreover, the "acting at all" standard finds support in — even if it is not necessarily mandated by — the legislative history. In this regard it stands in marked contrast with the alternative standard advanced by the management parties, who contend that a proposal should be held nonnegotiable if its adoption might occasion "unreasonable delay" in the exercise of management rights.

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.75 In their briefs in this court the parties again treat this passage as central. It bears quotation in full:

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 12(b) of Executive Order 11491 established certain management rights not subject to bargaining.77 Regarding Section 12(b), the Council's interpretive principle was clear. In a series of cases beginning with Local 63, American Federation of Government Employees, AFL-CIO, and Blaine Air Force Station, Blaine, Washington (Blaine), 3 FLRC 75 (1975), the Council held union bargaining proposals to be nonnegotiable if they contained procedures that would "unreasonably delay" the exercise of reserved management rights.78

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,79 and the Senate Committee on Governmental Affairs and then the Senate as a whole retained the Administration language in Section 7218 of the Senate bill. This language — the very language that the conference committee decided to delete — was explained as follows by the Committee on Governmental Affairs:

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 rights" provisions that reflected the Administration position were called to votes on at least two occasions, once in the Committee on Post Office and Civil Service81 and once on the House floor.82 They were rejected in both instances. The relevant language that ultimately was adopted by the House — the exact language now contained in Section 7106 of the Civil Service Reform Act — was offered in a floor amendment by Representative Udall.83 In an accompanying Sectional Analysis he explained the Section 7106 relationship between reserved rights and negotiable procedures in these terms:

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.85

The House-Senate conference committee adopted the House version of Section 7106 — the version introduced by Representative Udall — without revisions.86 It is on the report of that committee, quoted above, that the parties principally rely for evidence of congressional intent.

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."87 In the context of the full legislative history, however, this view of the committee report is hard to accept. The antecedent legislative debate had clearly focused, not on the threat of protracted negotiations, but on the kinds of proposals that ought and ought not to be negotiable. Despite being invited to do so, the House had explicitly declined to accept language adopting an "unreasonable delay" standard for determining the negotiability of union proposals. And the Senate, which had earlier opted for that standard, agreed to deletion of the pertinent language by the House-Senate conference. It was that Senate agreement that the disputed language of the conference report sought to explain. Under the circumstances, we cannot say that the FLRA misconstrued the conference report in deriving its "acting at all" test of negotiable procedures under Section 7106.

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.88 In the context, however, its argument is unconvincing. As the FLRA has emphasized, a negotiability standard is used only to determine whether a proposal is a proper subject of bargaining, not whether it ought to be implemented on the merits.89 In collective bargaining, government managers are presumably competent to look out for government interests. Congress has clearly acted on this premise in the enactment of other legislation, such as the labor-management chapter of the Foreign Service Act of 1980.90 Indeed, in reporting Section 1005 of the Foreign Service Act,91 a management rights provision that was modeled after Section 7106 of the Civil Service Reform Act,92 the House-Senate conference not only urged adoption of an "acting at all" standard; it cited Section 7106 of the Civil Service Reform Act as precedent for its decision to do so:

The conference report was "agreed to" by both the full Senate and the full House.94

The agency also offers arguments that the FLRA's "acting at all" standard must be rejected as inconsistent with other provisions of the Reform Act. These claims do not require prolonged discussion.

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."95 This argument is misdirected. The proposal under review deals only with disciplinary suspensions and removals. It does not necessarily apply to emergency assignments, even for disciplinary reasons.

The agency similarly argues that toleration of delays is inconsistent with the statutory command that any "negotiated grievance procedure * * * shall provide for expeditious processing * * *."96 This provision may, indeed, place some limit on the kind of grievance procedures to which the parties could agree.97 But management has not shown that arbitration is so slow as to run afoul of this standard, and the FLRA was not required to conclude otherwise. The characteristic speed of arbitral dispute resolution98 also refutes the argument that the union's proposal in this case tolerates indefinite delay and thus should be declared nonnegotiable as impairing management's reserved authority even under the FLRA's "acting at all" standard.

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" standard99 — were due substantial deference from the FLRA. At a minimum, the agency says, the FLRA was required to explain its departure from Council precedents.

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 11491.100 Moreover, in opting for the new language the House and then the Senate-House conference explicitly rejected alternative proposals that would have retained the interpretive standards of the existing case law.101 Under the circumstances, it is apparent that the Council decisions to which the agency appeals were "superseded by specific provisions of this chapter" within the meaning of Section 7135(b).

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) * * *."102 This is of course a different test of negotiability from the "acting at all" standard articulated by the Authority in Dix-McGuire, and the union has suggested here that this alleged inconsistency must be corrected.103

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.104 Such proposals are therefore different in kind from that involved in Dix-McGuire — a proposal that did not specify the criteria on which disciplinary action should be based, but only designated procedures for determining whether management criteria had in fact been satisfied in a particular instance. In view of the difference between the kinds of proposals under review, we cannot agree that an identical standard must be applied to both. Rejecting the challenge based on this point, we find no need to address the FLRA's contention in this court that application of the "acting at all" standard would have yielded the same results as those obtained under the "direct interference" formula.105

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"106 after that employee has been identified by negotiable standards as uniquely eligible for the assignment. Management, in other words, must retain more than a right to say yes or no to an employee who is identified for assignment under selection standards negotiated with a union.

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."107 Because decisions about selection criteria do not effect any legal change in an employee's status, the union argues, they do not constitute "personnel action" within management's reserved authority.108

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 ignores repeated assertions in the legislative history that Congress aimed to create a "balanced" statute109 that would, in the words of Representative Udall, the leading framer of Title VII, "give management the power to manage and the flexibility that it needs."110 Indeed, the union view would so thoroughly subordinate Section 7106(a) to Section 7106(b) as to read the former effectively out of the statute. Familiar canons of interpretation thus counsel rejection of the union's position. We must attempt to read the statute in a "manner which effectuates rather than frustrates the major purpose of the legislative draftsmen." Shultz v. Louisiana Trailer Sales, Inc., 428 F.2d 61, 65 (5th Cir. 1970); see Equal Employment Opportunity Comm'n v. Louisville & Nashville R. Co., 505 F.2d 610, 616-617 (5th Cir. 1974). Further, where alternative interpretations are possible, we should attempt to give effect to every word that Congress used. See Reiter v. Sonotone Corp., 442 U.S. 330, 99 S.Ct. 2326, 60 L.Ed.2d 931 (1979).

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 * * *."111 And these requirements, the FLRA continued, must be determined not on a general but on an individual basis. The agency, it held, must be able to decide whether a particular employee being considered for assignment has such "job-related individual characteristics as judgment and reliability."112 "Therefore," the Authority concluded, "the right to assign an employee to a position includes the discretion to determine which employee will be assigned."113

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 from among the employees so identified of the particular employee who will be assigned must be on the basis of seniority."114 The Authority held the proposals nonnegotiable on this basis. "In * * * compelling the selection of a particular individual for temporary assignment to another position" — and thus removing the agency's discretion to make individual judgments based on the judgment and reliability of particular persons — the proposals "directly interfere[d] with the right of the agency to assign employees."115

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."116 To the Authority, this reserved discretion made a crucial difference:

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 should be followed unless there are compelling indications that it is wrong." Miller v. Youakim, 440 U.S. 125, 145 n.25, 99 S.Ct. 957, 969, 59 L.Ed.2d 194 (1979), quoting Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1801, 23 L.Ed.2d 371 (1969) (footnote omitted); see Board of Gov. of Federal Reserve System v. First Lincolnwood Corp., 439 U.S. 234, 251, 99 S.Ct. 505, 514, 58 L.Ed.2d 484 (1978); Zemel v. Rusk, 381 U.S. 1, 11-12, 85 S.Ct. 1271, 1278-1279, 14 L.Ed.2d 179 (1965).

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."118 Moreover, it accords in both its aspects — its upholding of Proposal III and its rejection of Proposals IV, V, VI, and VII — with the sectional analysis of Section 7106 proffered by Representative Udall, the draftsman of the language enacted into law. Subsection (a)(2)(C) of Section 7106 reserves the management right to

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."120 Proposal III, which reserves a management right to choose among candidates ranked according to competitive procedures, obviously qualifies as bargainable under the Udall analysis.121 But Proposals IV, V, VI, and VII, which prescribe mandatory selections based on seniority, fail to pass its strictures.

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 had developed under the Federal Labor Relations Council. As we noted in our discussion of a similar claim raised in Dix-McGuire, supra, Congress plainly viewed Section 7106, if not Title VII as a whole, as a departure from the law that had developed under a comparable section of Executive Order 11491.122 Moreover, there is legislative history to indicate that Congress intended Section 7135(b), not to bind the FLRA or necessarily even to influence its decisions, but only to provide continuity while the Authority developed its own body of interpretive law under the new statute.123

Proposal XIII

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."124 Concluding that the proposal would "compel the agency to assign an employee to a position on the basis of [the] employee's preference," the Authority held that it would "interfere[] with the discretion which is an essential part of the right to assign under section 7106(a)(2)(A) of the Statute."125

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.126 Under this deferential standard127 we have no difficulty in affirming the finding of the FLRA that the proposal would eviscerate an element of discretion protected under Section 7106(a).128

Proposal XIV

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."129 The FLRA held the proposal to be negotiable. The agency argues otherwise, claiming that adoption of the proposal would require it to violate both statutory law and applicable regulations.

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.130 The Authority accepted the agency's statement of law: that a federal employee is entitled to the pay of a higher graded position only when promoted to it.131 However, in the absence of contrary indications, the Authority interpreted the union proposal as requiring the employee selected by management to be given a temporary promotion to the position to which assigned.132 Under this reasonable construction we agree with the FLRA that the agency has not shown the proposal to be inconsistent with applicable law.

The agency also challenges Proposal XIV as incompatible with pertinent federal regulations.133 The Federal Personnel Manual, it asserts, renders nonnegotiable any union proposal — such as this one — that would require a federal agency to make temporary promotions to "encumbered" positions. To make such promotions, the agency argues, it would need to "create" new positions to which employees could be temporarily assigned. And the requirement that it do so, this argument continues, would violate management's statutory prerogative not to bargain over numbers and grades of employees.

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."134 We reject the agency's argument because it has failed to persuade us of the truth of this crucial assumption on which the challenge rests.

To support its position the agency relies primarily on a 1925 opinion by the Comptroller General,135 which held that two employees cannot be "appointed, temporarily or permanently," to the same position.136 But it fails to reckon adequately with applicable personnel regulations, and indeed with more recent rulings issued by the Comptroller General, which establish that an employee may be temporarily assigned to a position without being "appointed to" it. Our review of the Federal Personnel Manual suggests two procedures through which the requisite temporary assignments might occur.

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.138

Alternatively, although we recognize that the Federal Personnel Manual distinguishes for some purposes between a "detail" and a "temporary promotion,"139 we are unpersuaded that a "temporary promotion" necessarily constitutes an "appointment" that cannot be made in the absence of a "vacancy." Nor do we believe that the Comptroller General — on whose opinions the agency so heavily relies — would conclude otherwise. Indeed, we are influenced in our decision by a recent opinion, upholding the legitimacy of a "detail" to an encumbered position, in which the Comptroller General found support for his conclusion in sections of the Federal Personnel Manual dealing with "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.

V

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.

Judgment accordingly.