United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 11, 2006 Decided May 18, 2007
No. 06-5113
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, ET AL.,
APPELLEES
v.
ROBERT M.GATES,
SECRETARY OF DEFENSE, IN HIS OFFICIAL CAPACITY AND
LINDA M. SPRINGER, DIRECTOR, IN HER OFFICIAL CAPACITY,
APPELLANTS
Appeal from the United States District Court
for the District of Columbia
(No. 05cv02183)
William G. Kanter, Attorney, U.S. Department of Justice,
argued the cause for appellants. With him on the briefs were
Peter D. Keisler, Assistant Attorney General, Jeffrey A. Taylor,
U.S. Attorney, Gregory G. Katsas, Deputy Assistant Attorney
General, Thomas M. Bondy, Lewis S. Yelin, and Eric
Fleisig-Greene, Attorneys, Frank R. Jimenez and Michael E.
Reheuser, Attorneys, Department of Defense, and David B.
Scholl and Robin M. Richardson, Attorneys, Office of Personnel
Management. Joseph W. LoBue and Tara L. Grove, Attorneys,
U.S. Department of Justice, entered appearances.
2
Joe Goldberg argued the cause for appellees. With him on
the brief were Mark D. Roth, Susan Tsui Grundmann, Sally M.
Tedrow, Keith R. Bolek, and Daniel M. Schember. Charles A.
Hobbie entered an appearance.
Gregory O’Duden, Elaine Kaplan, Larry J. Adkins, and
Robert H. Shriver III were on the brief for amicus curiae
National Treasury Employees Union in support of appellees.
Barbara A. Atkin entered an appearance.
Before: TATEL and KAVANAUGH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge KAVANAUGH,
in which Senior Circuit Judge WILLIAMS joins.
Dissenting opinion filed by Circuit Judge TATEL.
KAVANAUGH, Circuit Judge: This case arises out of a
contentious dispute over the collective bargaining rights of
hundreds of thousands of civilian employees of the Department
of Defense. Our limited judicial task is to determine whether the
Department of Defense has acted consistently with its statutory
authority in promulgating certain regulations. The primary legal
question we must decide is whether the National Defense
Authorization Act for Fiscal Year 2004 authorizes DoD to
curtail collective bargaining rights that DoD’s civilian
employees otherwise possess under the Civil Service Reform
Act of 1978. We hold that the National Defense Authorization
Act grants DoD temporary authority to curtail collective
bargaining for DoD’s civilian employees. By its terms, the Act
authorizes DoD to curtail collective bargaining through
November 2009. But after November 2009, with certain
specified exceptions, DoD again must ensure collective
bargaining consistent with the Civil Service Reform Act of
3
1978. We reverse the District Court’s judgment, and we uphold
the DoD regulations at issue in this appeal.
I
1. To put together the pieces of the statutory puzzle in this
case, one must first appreciate the difference between Chapter
71 and Chapter 99 of Title 5 of the U.S. Code.
Chapter 71 of Title 5 codifies the Civil Service Reform Act
of 1978 and establishes the right of federal civilian employees,
including civilian employees at the Department of Defense, “to
engage in collective bargaining with respect to conditions of
employment through representatives chosen by employees.” 5
U.S.C. § 7102(2). The Act generally requires agency
management to “meet and negotiate” in good faith with
recognized unions over conditions of employment “for the
purposes of arriving at a collective bargaining agreement.” Id.
§ 7114(a)(1), (a)(4). The Act exempts various matters from
collective bargaining, such as hiring, firing, suspending, paying,
and reducing the pay of employees. See id. §§ 7103(a)(14)(C),
7106(a). Therefore, the Civil Service Reform Act ensures
collective bargaining for federal employees, albeit more limited
than the collective bargaining rights for private employees. See
Nat’l Treasury Employees Union v. Chertoff, 452 F.3d 839,
860-61 (D.C. Cir. 2006).
Chapter 99 of Title 5 codifies a section of the National
Defense Authorization Act for Fiscal Year 2004 and sets out a
new labor relations framework for Department of Defense
employees. Chapter 99 differs from the Chapter 71 model in
several respects. In particular, Section 9902(a) of Chapter 99
establishes procedures for DoD, in coordination with the Office
of Personnel Management, to “establish, and from time to time
adjust, a human resources management system for some or all
4
of the organizational or functional units of the Department of
Defense.” 5 U.S.C. § 9902(a). (Hereafter, for ease of reference,
we will refer only to DoD and not also to OPM.) The “human
resources management system” is called the “National Security
Personnel System.” Id. Within the National Security Personnel
System, the Act authorizes DoD to establish a “labor relations
system” to structure bargaining between management and
employees. Id. § 9902(m)(1).
Section 9902 of Chapter 99 in turn contains a complicated
set of authorizations and requirements for DoD to follow in
establishing the National Security Personnel System and the
labor relations system, many of which are important to this case:
! General Requirements for National Security Personnel
System – Subsections (b)(3), (b)(4), and (d)(2).
Subsection 9902(b) lists general “system requirements” for
the National Security Personnel System. Of relevance here,
subsection (b)(3)(D) states that the system “shall . . . not waive,
modify, or otherwise affect . . . any other provision of this part
(as described in subsection (d)).” Subsection (d)(2) in turn says
that the “provisions of this part referred to in subsection
(b)(3)(D) are (to the extent not otherwise specified in this title)
. . . [Chapter] 71 . . . and this chapter” (emphasis added).
Taken together, therefore, subsections (b)(3) and (d)(2)
mean that DoD’s National Security Personnel System may not
waive or modify Chapter 71, which is the provision codifying
the Civil Service Reform Act of 1978’s limited collective
bargaining rights for federal civilian employees, unless the
authority to waive or modify Chapter 71 is “otherwise specified”
in the statute.
5
Subsection (b)(4) of Section 9902 similarly requires DoD
to “ensure that employees may organize, bargain collectively as
provided for in this chapter, and participate through labor
organizations of their own choosing in decisions which affect
them, subject to the provisions of this chapter” (emphases
added). Therefore, subsection (b)(4) requires that DoD’s
National Security Personnel System ensure collective
bargaining, but only “as provided for in” and “subject to the
provisions of” the statute.
! Authorization to Create Labor Relations System –
Subsections (m)(1) and (m)(8).
Subsection (m) of Section 9902 authorizes DoD to create a
new labor relations system within the National Security
Personnel System. Specifically, subsection (m)(1) states:
“Notwithstanding section 9902(d)(2), the Secretary . . . may
establish and from time to time adjust a labor relations system
for the Department of Defense to address the unique role that the
Department’s civilian workforce plays in supporting the
Department’s national security mission.”
The “notwithstanding” clause in subsection (m)(1) indicates
that the generally non-waivable provisions listed in subsection
(d)(2) – including Chapter 71 and its protection of limited
collective bargaining rights – do not constrain DoD’s authority
to develop a labor relations system under subsection (m).
Furthermore, subsection (m)(8) broadly states that the labor
relations system developed and from time to time adjusted by
DoD under subsection (m) “shall be binding on all bargaining
units within the Department of Defense” and “shall supersede all
other collective bargaining agreements for bargaining units in
the Department.”
6
Subsection (m)(9) provides, however, that the authority
under subsections (m)(1) and (m)(8) runs out in November
2009: “Unless it is extended or otherwise provided for in law,
the authority to establish, implement and adjust the labor
relations system developed under this subsection shall expire six
years after the date of enactment of this subsection [that is, six
years after November 2003], at which time the provisions of
chapter 71 will apply.”
! Additional Authorization – Subsection (k)(1).
Subsection (k) of Section 9902 provides additional specific
authority for DoD to act in certain specified areas of labor
relations. Subsection (k)(1) states: “Notwithstanding subsection
(d), the Secretary of Defense . . . shall not be limited by any
provision of this title or any rule or regulation prescribed under
this title in establishing and implementing regulations relating
to – (A) the methods of establishing qualification requirements
for, recruitment for, and appointments to positions; (B) the
methods of assigning, reassigning, detailing, transferring, or
promoting employees; and (C) the methods of reducing overall
agency staff and grade levels . . . .”
Subsection (k)(1) is not subject to the sunset date of
subsection (m)(9). Therefore, DoD will retain the targeted
authority conferred by (k)(1) even after the broader general
authority under subsection (m) runs out in November 2009.
2. After Congress enacted the National Defense
Authorization Act in November 2003, DoD began developing
the National Security Personnel System. On February 14, 2005,
DoD published a proposed system in the Federal Register. See
National Security Personnel System, 70 Fed. Reg. 7552. After
various DoD employee representatives submitted comments,
DoD held several meetings with employee representatives in the
7
spring of 2005. On November 1, 2005, DoD promulgated final
regulations setting up the National Security Personnel System.
See Department of Defense Resources Management and Labor
Relations System, 70 Fed. Reg. 66,116.
The regulations curtail the scope of Chapter 71 collective
bargaining in several ways relevant to this appeal:
! The regulations permit certain DoD officials to issue
“implementing issuances” to abrogate any provision of an
existing collective bargaining agreement or effectively take
any topic off the table for future bargaining purposes. 5
C.F.R. §§ 9901.905(a), 9901.917(d)(1). DoD may also
promulgate “issuances” that take topics off the table. Id.
§ 9901.917(d)(1). (Issuances and implementing issuances
are documents issued to carry out DoD policies;
implementing issuances relate to the National Security
Personnel System, while issuances relate to any DoD
policy. See id. § 9901.903.) Under the regulations, both
issuances and implementing issuances can have prospective
effect, but only implementing issuances can abrogate
existing collective bargaining agreements. See id.
§§ 9901.905(a), (c), 9901.917(d)(1).
! The regulations broaden the scope of “management
rights” – that is, actions that management can take without
collective bargaining – beyond the management rights
already provided in Chapter 71. In particular, the
regulations permit DoD “to take whatever other actions
may be necessary to carry out the Department’s mission.”
Id. § 9901.910(a)(2).
! The regulations curtail bargaining over (i) the procedures
DoD must follow when exercising management rights and
(ii) the “appropriate arrangements” that DoD must make for
8
employees affected by exercises of management rights. Id.
§§ 9901.910; 9901.914(a)(2).
! The regulations limit collective bargaining rights over pay
and benefits for employees of certain DoD units known as
“non-appropriated fund instrumentalities.” These
employees’ compensation is not set by statute and is
therefore traditionally subject to collective bargaining. See
id. § 9901.305.
3. After the regulations were issued, several unions of
DoD civilian employees filed suit in the U.S. District Court for
the District of Columbia. They argued that the DoD regulations
exceeded its statutory authority – a case of “rulemaking
overreach,” as the Unions have put it. Tr. of Oral Arg. 25. The
District Court accepted the Unions’ argument in relevant part.
In particular, the District Court held that DoD’s regulations
violated subsection (b)(4)’s requirement that the National
Security Personnel System ensure employees can bargain
collectively. See Am. Fed’n of Gov’t Employees v. Rumsfeld,
422 F. Supp. 2d 16, 40-45 (2006). The District Court found that
subsection (b)(4) means “the new system must ensure that the
principles of collective bargaining are not totally eviscerated.”
Id. at 40. The District Court therefore enjoined several
components of the regulations (subparts G, H, and I of 5 C.F.R.
§ 9901), including the expansion of management rights and the
authority of the Secretary to issue implementing issuances and
issuances. See id. at 41-45.
II
This case centers on interpretation of the National Defense
Authorization Act. The Unions argue that various DoD
regulations “conflict with the Act’s plain language.” Unions’
Br. at 17.
9
We initially explain the roadmap that guides our analysis.
If the relevant statutory language is plain and supports the
challenged DoD regulations, we must uphold the regulations.
See Health Ins. Ass’n of Am., Inc. v. Shalala, 23 F.3d 412, 415
(D.C. Cir. 1994). If the relevant statutory language is plain but
is inconsistent with the DoD regulations, we must hold the
regulations invalid. See Brown v. Gardner, 513 U.S. 115, 122
(1994); cf. Dodd v. United States, 545 U.S. 353, 359 (2005);
Lamie v. U.S. Trustee, 540 U.S. 526, 534 (2004); Hartford
Underwriters Ins. Co. v. Union Planters Bank, 530 U.S. 1, 6
(2000). To the extent a challenged provision of the statute is
ambiguous, we give deference to DoD’s authoritative
interpretation so long as that interpretation is reasonable. See
Nat’l Treasury Employees Union v. Chertoff, 452 F.3d 839,
855-56 (D.C. Cir. 2006) (citing United States v. Mead Corp.,
533 U.S. 218 (2001), and Chevron U.S.A. Inc. v. Natural Res.
Def .Council, Inc., 467 U.S. 837 (1984)).
1. At first glance, the relevant provisions of the National
Defense Authorization Act may seem contradictory. After all,
the five subsections primarily at issue in this case – (b)(3),
(b)(4), (d)(2), (m)(1), and (m)(8) – initially appear to work at
cross-purposes. Subsections (b)(3), (b)(4), and (d)(2) seem to
bestow a right to collective bargaining as traditionally provided
under Chapter 71 of the Civil Service Reform Act of 1978,
while subsections (m)(1) and (m)(8) simultaneously appear to
snatch it away. But upon closer examination, the statutory
pieces come together and form a relatively coherent whole, at
least for purposes of this case.
The key to solving the statutory puzzle is the fact that
subsections (b)(3), (b)(4), and (d)(2) together contemplate that
collective bargaining under Chapter 71 is generally available,
but only to the extent not otherwise exempted by separate
provisions of the statute.
10
Subsection (d)(2) – which is a system requirement as a
result of a cross-reference in subsection (b)(3) – states that
Chapter 71’s protection for collective bargaining is nonwaivable
“to the extent not otherwise specified in this title” (emphasis
added). This qualification indicates that subsection (d)(2) can
be overridden by an exception in another provision of the
statute.
Subsection (b)(4) similarly states that the Government must
permit employees to “organize, bargain collectively as provided
for in this chapter, and participate through labor organizations
of their own choosing in decisions which affect them, subject to
the provisions of this chapter” (emphases added). The first
italicized phrase – “as provided for in this chapter” – indicates
that subsection (b)(4)’s guarantee of collective bargaining is
contingent on collective bargaining being provided by other
subsections, such as subsection (d)(2)’s incorporation of the
collective bargaining framework of Chapter 71. In addition, the
further qualification in subsection (b)(4) – “subject to the
provisions of this chapter” – indicates that, like subsection
(d)(2), subsection (b)(4) can be overridden by other provisions
of the statute.
To summarize so far, subsections (b)(3) and (d)(2) (which
incorporate Chapter 71 bargaining) and subsection (b)(4) may
be overridden by other provisions of the statute; furthermore,
subsection (b)(4) ensures collective bargaining in the first place
only insofar as another subsection of the statute provides for it.
At this point in our summary of the statutory puzzle, however,
we pause to note an important point: If the National Defense
Authorization Act contained no provisions relevant to collective
bargaining other than subsections (b)(3), (b)(4), and (d)(2), the
Act would require DoD to adhere to the traditional collective
bargaining framework of Chapter 71, just as the Unions have
argued.
11
Enter subsections (m)(1) and (m)(8). Subsection (m)(1)
states: “Notwithstanding section 9902(d)(2), the Secretary . . .
may establish and from time to time adjust a labor relations
system for the Department of Defense to address the unique role
that the Department’s civilian workforce plays in supporting the
Department’s national security mission.” (emphasis added).
Subsection (m)(8) adds that “[t]he labor relations system
developed or adjusted under this subsection shall be binding on
all bargaining units within the Department of Defense” and
“shall supersede all other collective bargaining agreements.”
The “notwithstanding” clause in (m)(1) expressly states that
the authority to establish a labor relations system overrides
subsection (d)(2). So subsection (d)(2) by its terms may be
overridden where “specified,” and subsection (m)(1) provides
just such a specification. Therefore, when it crafts its labor
relations system, DoD need not follow Chapter 71’s collective
bargaining framework, which otherwise would be required by
subsection (d)(2) (as cross-referenced by subsection (b)(3)). It
is important to note, however, that DoD’s authority under
subsection (m)(1) is temporary: Under subsection (m)(9),
DoD’s authority to establish a labor relations system expires in
November 2009 – at which point subsection (d)(2) will require
that DoD again follow Chapter 71 (subject to certain targeted
exceptions such as in subsection (k)(1)).
The guarantee of collective bargaining in subsection (b)(4)
also does not apply until November 2009. Recall that collective
bargaining under subsection (b)(4) applies insofar as it is
“provided for in this chapter.” Collective bargaining is in fact
provided for in subsection (d)(2), which refers back to Chapter
71 and thus requires collective bargaining. Collective
bargaining is not, however, provided for in the text of subsection
(m)(1). And because subsection (m)(1) expressly permits DoD
to disregard subsection (d)(2), subsection (m)(1) also means that
12
– until November 2009 – nothing in the statute “provide[s] for”
collective bargaining for purposes of subsection (b)(4). As a
result, like subsection (d)(2), subsection (b)(4) does not
constrain DoD’s authority to establish a labor relations system
until November 2009. After November 2009, collective
bargaining is “provided for” in the statute – in subsection (d)(2)
– and again must be ensured by DoD.
The dissenting opinion contends that the statutory phrase
“as provided for in this chapter” means only “that other
provisions of the bill modify Congress’s traditional
understanding of the term ‘bargain collectively.’” Dissenting
Op. at 4. But that interpretation distorts the plain meaning of the
phrase “as provided for,” reading it to mean “unless otherwise
provided for” – its polar opposite. That interpretation also
renders redundant the second, independent qualification in
subsection (b)(4) – “subject to the provisions of this chapter” –
and would essentially read both qualifications in (b)(4) the same
way, a highly disfavored interpretive result. See, e.g., Indep.
Ins. Agents of Am., Inc. v. Hawke, 211 F.3d 638, 643-44 (D.C.
Cir. 2000). By contrast, our reading gives each phrase
independent meaning: The first qualification requires an
affirmative grant of collective bargaining elsewhere in the
statute (such as in (d)(2)), while the second qualification says
that even where there is such an affirmative grant, it may be
overridden by other provisions. The dissent’s strained reading
appears to be sparked in part by its analysis of a hypothetical
statute of the dissent’s own creation, which would use the phrase
“bargain collectively as provided for in this chapter” without
anywhere else actually providing for collective bargaining. But
the real statute in this case does provide for collective bargaining
– in subsection (d)(2) – and we thus have no need to speculate
about such hypothetical interpretive puzzles.
13
Even if the dissent were correct that both provisions in
subsection (b)(4) essentially mean that collective bargaining
applies unless otherwise excepted, however, we would reach the
same result. The “subject to the provisions of this chapter”
qualification (which the dissenting opinion glosses over) means
that any right to collective bargaining that otherwise exists under
subsection (b)(4) (whether as a result of the reference to
collective bargaining in (b)(4) itself or because of (d)(2)’s
reference to Chapter 71) is subject to and may be overridden by
other provisions of the statute. And subsections (m)(1) and
(m)(8) by their terms plainly qualify as such exceptions through
November 2009.
In sum, subsection (m) of Section 9902 grants DoD
expansive authority to curtail collective bargaining through
November 2009. Subsection (m)’s authority to curtail collective
bargaining is entirely consistent with – not in conflict with –
subsections (b)(3), (b)(4), and (d)(2) of Section 9902, given the
express qualifications in those subsections. After November
2009, however, the authority in subsection (m) runs out, and
collective bargaining under Chapter 71 again will structure the
Department’s labor relations (apart from targeted statutory
exceptions, such as subsection (k)(1)).
2. In response to this straightforward reading of the plain
language of the statute, the Unions have advanced three primary
arguments. None is persuasive.
First, the Unions argue that subsections (b)(3), (b)(4), and
(d)(2) of Section 9902 would have no purpose if subsections
(m)(1) and (m)(8) give DoD broad authority to curtail collective
bargaining. We disagree with the Unions on this point. The
labor relations system authorized under subsection (m) expires
in November 2009, at which point the important Chapter 71
collective bargaining requirements of (b)(3), (b)(4), and (d)(2)
14
will generally apply. In effect, therefore, the Act sets up a
temporary, experimental period through November 2009 during
which DoD has broad leeway to restructure its labor relations
system. But after November 2009, assuming that Congress has
not amended the statute in the meantime, the Chapter 71
collective bargaining requirements referenced in subsections
(b)(3), (b)(4), and (d)(2) again will apply and govern labor
relations for DoD’s civilian workers (subject to targeted
exceptions such as subsection (k)(1)).
This kind of experimental program is common. To test new
policies or try out novel approaches to difficult issues, Congress
often enacts temporary legislation that sunsets at a certain point.
See, e.g., USA PATRIOT Act, Pub. L. No. 107-56, § 224(a),
115 Stat. 272, 295 (2001); Ethics in Government Act of 1978,
Pub. L. No. 95-521, § 601(a), 92 Stat. 1824, 1873 (former
independent counsel statute). As in other situations where
Congress has acted to establish a temporary or experimental
program, Congress no doubt will continue to carefully study the
experience under this Act and use it to guide further legislation
governing labor relations at DoD. In short, contrary to the
Unions’ argument, subsections (b)(3), (b)(4), and (d)(2) play a
critical role by generally providing collective bargaining for
DoD’s civilian employees after November 2009.
Second, the Unions relatedly argue that subsection (m),
when interpreted according to its plain terms, allows DoD to
effectively negate collective bargaining through November
2009. The Unions strenuously contend that this cannot possibly
be a correct interpretation of the Act because Congress does not
“hide elephants in mouseholes.” Unions’ Br. at 18 (internal
quotation omitted).
We agree with the Unions that subsection (m) is a statutory
elephant (in the sense of having a huge impact), but the
15
additional premise of the Unions’ contention is inaccurate:
Subsection (m) was not hidden. To be sure, subsection (m) was
ushered into the legislative arena at a late hour. Indeed, neither
the initial House-passed nor Senate-passed bills (nor the separate
bill on DoD labor relations approved by the Senate Committee
on Governmental Affairs) included subsection (m); the bills
preserved collective bargaining at DoD. See 149 Cong. Rec.
H4460-61 (daily ed. May 21, 2003); 149 Cong. Rec. S14,490
(Nov. 12, 2003) (statement of Senator Lieberman); Am. Fed’n
of Gov’t Employees v. Rumsfeld, 422 F. Supp. 2d 16, 25 (D.C.
Cir. 2006). But the conference negotiations took a rather
dramatic turn in a different direction. The conferees decided to
add subsection (m), and subsection (m) by its terms gives DoD
expansive authority to curtail collective bargaining through
November 2009. See Am. Fed’n of Gov’t Employees, 422 F.
Supp. 2d at 26.
With subsection (m) added, the conference agreement
sparked pointed objections from several Members of Congress.
Their reactions show (contrary to the Unions’ elephants-in-
mouseholes suggestion) that Members of Congress clearly
recognized subsection (m) for what it is – broad authority for
DoD to curtail collective bargaining for six years from the date
of enactment, that is, through November 2009. For example,
Congressman Waxman stated: “At the same time that the bill
claims to protect collective bargaining, it allows DoD to waive
these requirements for the next 6 years.” 149 Cong. Rec.
H10,988 (daily ed. Nov. 7, 2003). Congresswoman Jackson Lee
added: “This bill claims to protect collective bargaining rights
but removes all of the protections provided under the current
law. . . . During the 6-year period, the Secretary of Defense will
have the authority to decide what issues will be bargained . . . .”
Id. at H10,998. Congressman McGovern stated: “This
Conference Report removes all collective bargaining protections
contained in current law . . . .” Id. at H11,006. Congressman
16
Cardin explained his view that “more than 700,000 civilian
workers in the Defense Department will lose fundamental
protections . . . . . [T]his provision empowers . . . Secretaries of
Defense to create an entirely new personnel system for DoD
civilians.” Id. at H11,003. Congressman Abercrombie said:
“[S]ome 700,000 federal employees will be stripped of their
rights and protections in the current civil service system and
placed at the mercy of political appointees in DoD.” Id. at
H11,004. Congressman Hoyer, responding to another
Representative’s hope that Chapter 71 was non-waivable,
explained: “That is technically true, but the bill allows [Chapter
71] to be suspended for the next [six years].” Id. at H10,997.
And in opposing this provision of the statute, Senator Kennedy
stated his understanding in frank terms: “Defense employees
deserve civil service and collective bargaining rights” and this
statute, Senator Kennedy stated, is a “vehicle to deny these
workers their basic rights.” 149 Cong. Rec. S14,486 (daily ed.
Nov. 12, 2003). Other Members of Congress likewise objected
to subsection (m) while attempting to construct an interpretation
that could require DoD to retain some core of collective
bargaining even before November 2009. See, e.g., id. at
S14,490 (statement of Senator Lieberman); id. at S14,428
(statement of Senator Collins).
Although the snippets of legislative history are largely in
accord with our reading of the statutory text, we do not rely on
them to shape our interpretation; the Supreme Court has
cautioned against such use of this kind of legislative history.
See Shell Oil Co. v. Iowa Dep’t of Revenue, 488 U.S. 19, 29
(1988) (courts do “not usually accord much weight to the
statements of a bill’s opponents”). We cite these various
Member statements simply to show that the enormous
significance of subsection (m) was well understood by Members
of Congress when the Act was passed in 2003, contrary to the
17
premise of the “elephants-in-mouseholes” interpretive objection
put forth by the Unions.
Third, the Unions have pointed to our recent decision in
Chertoff. In that case, we held that the Department of Homeland
Security’s regulations establishing a labor relations system were
inconsistent with the DHS statute that Congress enacted in 2002.
The Unions here have candidly (and correctly) acknowledged
that the statutory language governing DoD’s labor relations
system is quite different from the statutory language governing
DHS’s labor relations system. See Tr. of Oral Arg. 42-43 (“We
acknowledge that the organic act that Chertoff is based upon is
different than the organic act we’re arguing [about] here
today. . . . We acknowledge that the language of the statute is
different. We are not suggesting that Chertoff makes the
question stare decisis.”).
The DHS statute provides, without any relevant
qualification, that DHS must “ensure that employees may . . .
bargain collectively.” 5 U.S.C. § 9701(b)(4). By contrast, the
DoD statute states that DoD must ensure that employees may
“bargain collectively as provided for in this chapter” and makes
clear that Chapter 71 defines the scope of such collective
bargaining. The statute then expressly qualifies the Chapter 71
collective bargaining default by stating that it applies “subject
to the provisions of this chapter” or except as “otherwise
specified” in the statute. The DoD statute in turn includes
subsections (m)(1) and (m)(8), which give DoD broad authority
to create a new labor relations system and to supersede
collective bargaining through November 2009. By contrast, the
DHS statute contains no provision remotely equivalent to
subsection (m) of the DoD statute. As we noted earlier, without
subsection (m) (and without subsection (k)’s targeted limits on
collective bargaining), this case would be decided the same way
as Chertoff. But because of the multiple – and critical –
18
differences in the DHS and DoD statutes, our decision in
Chertoff does not provide any meaningful guidance for our
interpretation of the very different DoD statute. In other words,
we do not believe, contrary to the Unions and the dissent, that
Chertoff’s interpretation of the undefined phrase “bargain
collectively” in the DHS statute can somehow alter the language
of the DoD statute, which expressly indicates that collective
bargaining means the collective bargaining provided for in
subsection (d)(2).
In sum, we hold that the plain language of the National
Defense Authorization Act authorizes DoD to curtail collective
bargaining for DoD’s civilian employees through November
2009. For purposes of our analysis, we find the relevant
statutory terms plain. But even if we found ambiguity in the
relationship of (b)(3), (b)(4), and (d)(2) on the one hand to
(m)(1) and (m)(8) on the other, we would defer to DoD’s
reasonable interpretation and application of the statute as
articulated in the preamble to the regulations. See 70 Fed. Reg.
at 66,117-20, 66,128-30, 66,134, 66,176-85; Chevron U.S.A.
Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 845
(1984). DoD reasonably concluded that “the law provides the
Department and OPM – in collaboration with employee
representatives – authority to establish a flexible and
contemporary system of civilian human resources management
for DoD civilians.” 70 Fed. Reg. at 66,118. DoD explained that
“Congress specifically authorized the Secretary, together with
the Director, to establish and adjust this labor relations system
in support of the overall HR management system
notwithstanding the provisions of the current system as set forth
in chapter 71.” Id. at 66,128. DoD further stated that the statute
did not require that actions to implement the labor relations
system “be subject to collective bargaining or the meet-and-
confer process.” Id. at 66,134. DoD reasonably concluded that
its regulations “fulfill” the (m)(1) statutory authorization –
19
namely, that DoD’s labor relations system address the “unique
role that the Department’s civilian workforce plays in supporting
the Department’s national security mission” – while also
“providing employees with the rights envisioned by Congress.”
Id. at 66,129. No doubt realizing that DoD’s interpretation and
approach is perfectly reasonable if the statute is considered
ambiguous, the Unions do not even attempt to make such a
“Chevron step 2” argument. Instead, the Unions try to
demonstrate that DoD’s regulatory interpretations are
inconsistent with the clear meaning of the statute. For the
reasons explained above, however, we see no conceivable way
to conclude that DoD’s regulations violate the unambiguous
terms of the statute. See Am. Fed’n of Gov’t Employees, Local
446 v. Nicholson, 475 F.3d 341, 354-55 (D.C. Cir. 2007); Ass’n
of Bituminous Contractors, Inc. v. Apfel, 156 F.3d 1246, 1251
(D.C. Cir. 1998).
Because we conclude that the National Defense
Authorization Act authorizes DoD to curtail collective
bargaining, we reverse the contrary judgment of the District
Court.
3. One additional point warrants mention with respect to
the so-called “implementing issuances” contemplated by the
DoD regulations (those are the documents that enforce DoD
labor relations policies and may curtail collective bargaining).
Section 9902 sets out two different sets of procedural
requirements that DoD must follow when taking action under
the statute: (i) one set of procedural requirements for adopting
or amending regulations issued under the statute, and (ii) another
set of procedural requirements for taking certain action under
those regulations.
First, subsections (f)(1)(A)-(C) and (m)(3) define stringent
“meet and confer” requirements that DoD must follow when (i)
20
proposing a new system by adopting regulations or (ii) making
an adjustment to the existing system by amending regulations.
Those requirements include: a 30-day period for employee
representatives to make recommendations regarding any DoD
proposal (absent extraordinary circumstances), full and fair
consideration of any such recommendations, a 30-day
meet-and-confer period with employee representatives regarding
any rejected recommendations, and notice to Congress when
recommendations by the employee representatives are rejected.
(In this court, it is not disputed that DoD complied with these
requirements in promulgating the regulations at issue here.)
Second, subsection (f)(1)(D) sets out less rigorous
“continuing collaboration” requirements that DoD must follow
for taking certain actions under the regulations. In particular,
subsection (f)(1)(D) requires that DoD “develop a method for
the employee representatives to participate” and “give the
employee representatives adequate access to information to
make that participation productive.”
When the Secretary promulgates an implementing issuance
under the regulations, however, the Unions suggest that DoD
must follow the full meet-and-confer procedures of subsections
(f)(1)(A)-(C) and (m)(3). By contrast, DoD believes that only
the “continuing collaboration” requirements of (f)(1)(D) instead
apply. As DoD explained in the preamble to the final
regulations, “we did not adopt the [Unions’] suggestion to
require that implementing issuances be subject to collective
bargaining or the meet-and-confer process. Collective
bargaining is inappropriate for the development of HR system
implementing issuances, since it is inconsistent with the
requirements of Section 9902(f)(4). . . . The continuing
collaboration process [in the regulations] does meet the
requirements of 5 U.S.C. 9902(f)(1)(D) . . . .” 70 Fed. Reg. at
66,134.
21
We agree with DoD on this point. The most natural reading
of the statute is that the more stringent meet-and-confer
requirements apply only when DoD adopts regulations to
establish the new system or amends those regulations to adjust
the existing system. See 5 U.S.C. § 9902(a) (“[T]he Secretary
may, in regulations . . ., establish, and from time to time adjust,
a human resources management system . . . .”) (emphases
added). Put another way, meet-and-confer requirements apply
to promulgating regulations or to revising existing regulations.
But the less stringent statutory requirement of “continuing
collaboration” applies when DoD takes actions pursuant to
regulations – such as implementing issuances. This reading of
the statute is buttressed by the fact that requiring the full
panoply of meet-and-confer obligations when the Department
takes actions under the regulations would tie the system in knots
and greatly hinder (if not prevent) the Department’s exercise of
any discretionary authority set forth by the regulations. Cf. Time
Warner Cable v. Doyle, 66 F.3d 867, 877 (7th Cir. 1995)
(permitting agency to take into account how burdensome one
interpretation of a statute would be).
Even if we assume that the statute is ambiguous as to which
kind of procedural requirements apply to implementing
issuances, however, we could not say that DoD’s interpretation
of these ambiguous provisions is an unreasonable way of
harmonizing the two statutory provisions. Therefore, under the
deferential Chevron framework for reviewing agency
interpretation of ambiguous statutes, we would uphold this
particular regulation even if it were unclear which statutory
collaboration requirement applied to implementing issuances.
See Nicholson, 475 F.3d at 353-55; Ass’n of Bituminous
Contractors, Inc., 156 F.3d at 1251.
22
III
Next, we address three miscellaneous challenges by the
Unions relating to: the National Security Labor Relations Board,
the standard of conduct for employee representatives, and the
appeals process.
1. Under § 9902(m)(6), the labor relations system
established by the Secretary must “provide for independent third
party review of [labor relations] decisions, including defining
what decisions are reviewable by the third party, what third
party would conduct the review, and the standard or standards
for that review.” Under that subsection, DoD by regulation has
created the National Security Labor Relations Board, which
must decide issues related to unfair labor practices, the scope of
bargaining, the duty to bargain in good faith, exceptions to
arbitration awards, and negotiation impasses. See 5 C.F.R.
§§ 9901.907, 9901.908(b). The regulations authorize the
Secretary to appoint the members of the Board who serve for
three-year terms. Id. § 9901.907(b)(1). Under the regulations,
the members must be “independent, distinguished citizens of the
United States who are well known for their integrity,
impartiality, and expertise in labor relations, and/or the DoD
mission and/or other related national security matters.” Id.
§ 9901.907(b)(2). The Secretary will consider nominees
submitted by labor organizations that represent Department
employees. Id. § 9901.907(d)(1).
The Unions argue that the regulations do not ensure that the
Board members are independent. We disagree. Under the
regulations, members of the Board “may be removed by the
Secretary only for inefficiency, neglect of duty, or malfeasance
in office.” Id. § 9901.907(b)(2). This language mirrors the key
feature of federal statutes that create what are commonly
referred to as “independent” federal agencies. See, e.g., 5
23
U.S.C. § 1202(d) (Merit Systems Protection Board); 15 U.S.C.
§ 41 (Federal Trade Commission); 42 U.S.C. § 5841(e) (Nuclear
Regulatory Commission); 49 U.S.C. § 701(b)(3) (Surface
Transportation Board); see also Humphrey’s Ex’r v. United
States, 295 U.S. 602, 629 (1935). So too, the Federal Labor
Relations Authority, which handles labor disputes, is considered
independent because of its similar good cause removal
constraint. In light of the good cause removal provision in the
regulations, DoD’s Board meets the statutory requirement of
independent review.
The Unions offer two counter-arguments. First, they assert
that the Board is not independent because the Board can “both
investigate and adjudicate labor disputes.” Unions’ Br. at 33.
Yet the Unions do not explain how the separation of these
functions would make the Board more independent from DoD.
Nothing in the statute or in logic requires a separation of
functions within the “independent third party.” See Withrow v.
Larkin, 421 U.S. 35, 47 (1975); United Steelworkers of Am.,
AFL-CIO-CLC v. Marshall, 647 F.2d 1189, 1215 n.28 (D.C. Cir.
1980). What is more, many independent federal agencies
combine these functions. See, e.g., 15 U.S.C. §§ 45(b), 46
(Federal Trade Commission); 47 U.S.C. §§ 204, 208 (Federal
Communications Commission). Second, the Unions claim that
the Board is not independent because it possesses unreviewable
authority to decide negotiation impasses (in contrast to its other
decisions, which are reviewed by the Federal Labor Relations
Authority). See Unions’ Br. at 34. But insulating the Board
from review by another government body does not render the
Board itself any less independent.
In sum, the Unions have not shown that the Board lacks
independence for purposes of the statute, and we therefore reject
the Unions’ challenge to the regulation establishing the Board.
24
2. The Unions have challenged the DoD regulation
providing that “[e]mployee representatives employed by the
Department are subject to the same expectations regarding
conduct as any other employee, whether they are serving in their
representative capacity or not.” 5 C.F.R. § 9901.914(a)(4). The
Unions believe that this regulation will prevent employee
representatives from engaging in “vigorous advocacy” on behalf
of DoD employees, as is required to ensure effective bargaining.
Unions’ Br. at 28-29. In response, DoD explained that “[t]he
only conduct the revised standard is intended to stop is the rare,
but utterly unacceptable use of vulgar or sexually explicit
language, as well as physical intimidation by union officials.”
Department of Defense Human Resources Management and
Labor Relations System, 70 Fed. Reg. 66,116, 66,182 (Nov. 1,
2005). According to this explanation, the Department’s intent
was “not to prevent honest and open discussion, but rather to
ensure that such discussions are undertaken in a professional and
courteous manner.” Id. We accept and defer to DoD’s
reasonable interpretation of its own regulation. As we have
often stated, “an agency’s interpretation of one of its own
regulations commands substantial judicial deference.” Drake v.
FAA, 291 F.3d 59, 68 (D.C. Cir. 2002) (citing Bowles v.
Seminole Rock & Sand Co., 325 U.S. 410 (1945)). The
Department’s proffered interpretation here is a reasonable
construction of the regulation’s text and represents the
Department’s “fair and considered” judgment, given that it was
published in the Federal Register. Id. (internal quotation
omitted); cf. Auer v. Robbins, 519 U.S. 452, 463 (1997). This
regulation does not contravene any provision of the statute, and
we uphold it.
3. Finally, we address the Unions’ contention that the labor
relations system does not comply with the “fair treatment”
requirement of subsection (h)(1)(A) of Section 9902. That
subsection provides that “[t]he Secretary . . . may establish an
25
appeals process that provides employees of the Department of
Defense organizational and functional units that are included in
the National Security Personnel System fair treatment in any
appeals that they bring in decisions relating to their
employment.”
Under the regulations, an employee first appeals an adverse
employment decision to an administrative judge. After the
administrative judge issues an initial decision, the losing party
may appeal to designated DoD officials. See 5 C.F.R.
§ 9901.807(a), (g). After this appeal to the Department, further
appeal may be taken to the independent Merit Systems
Protection Board. Id. § 9901.807(h). Finally, the decision of the
Merit Systems Protection Board is subject to judicial review in
the courts. Id. § 9901.807(i). The appeals scheme is very
similar to that used in many other agencies, with the exception
that these regulations add a level of Merit Systems Protection
Board review.
The phrase “fair treatment” is not defined in the statute. We
believe “fair treatment” is a quintessential example of a vague
statutory standard that requires significant judicial deference to
the agency’s reasonable interpretation. See Aurora Packing Co.
v. NLRB, 904 F.2d 73, 76 n.1 (D.C. Cir. 1990) (“Chevron
presumes that Congress delegated primarily to executive branch
agencies the interpretation of ambiguous terms . . . .”). Given
that deferential standard of review, we conclude that the
extensive review process outlined above easily qualifies as “fair
treatment.”
We do not consider the Unions’ other “fair treatment”
challenges because we agree with DoD that they are not yet ripe
for judicial review under our decision in Chertoff. In Chertoff,
a regulation prevented the Merit Systems Protection Board from
mitigating a penalty that DHS imposed on an employee unless
26
the penalty was “wholly without justification.” Nat’l Treasury
Employees Union v. Chertoff, 452 F.3d 839, 850 (D.C. Cir.
2006) (quoting 5 C.F.R. § 9701.706(k)(6)). We held that the
challenge to that mitigation provision was unripe for review. Id.
at 855. We stated that judicial review would benefit from a
specific application of the “wholly without justification”
mitigation standard. We also found important that the Unions
would suffer no harm from delaying review because the
mitigation standard did not have a “direct and immediate”
impact on their “primary conduct.” Id. (citing Toilet Goods
Ass’n, Inc. v. Gardner, 387 U.S. 158 (1967), and quoting Better
Gov’t Ass’n v. Dep’t of State, 780 F.2d 86 (D.C. Cir. 1986)).
Here, the Unions challenge a similar mitigation standard
established in the regulations, which permits an administrative
judge to mitigate a penalty only if it is “totally unwarranted in
light of all pertinent circumstances.” 5 C.F.R.
§ 9901.807(f)(2)(ii). The Unions also object to the regulations
that give the Secretary unreviewable discretion to define
“[m]andatory removal offenses.” Id. §§ 9901.712(a),
9901.808(c). And the Unions challenge the Secretary’s
discretion to modify interim relief ordered by the Merit Systems
Protection Board. Id. § 9901.807(f)(5)(i). As in Chertoff, we
do not know how the Secretary may choose to apply these
particular regulations in specific cases. As in Chertoff, we lack
a concrete factual context to consider these challenges. And as
in Chertoff, the Unions will not be harmed by delayed review
because the “disputed procedures do not have any direct and
immediate impact on the Unions’ primary conduct.” Chertoff,
452 F.3d at 855 (internal quotations omitted). Therefore, in
light of Chertoff, we find that these provisions of the regulations
are not yet ripe for judicial review.
* * *
27
We reverse the judgment of the District Court and uphold
the DoD regulations at issue in this appeal.
So ordered.
TATEL, Circuit Judge, dissenting in part: In authorizing the
Secretary of Defense to establish a new personnel system,
including a temporary labor-management relations subsystem,
the National Defense Authorization Act for Fiscal Year 2004,
codified in relevant part at 5 U.S.C. § 9901 et. seq. (Chapter 99),
directs—in subsection (b)(4)—that any such system must
“ensure that employees may . . . bargain collectively as provided
for in this chapter.” 5 U.S.C. § 9902(b)(4). According to the
court, despite this system requirement, subsection (m), which
authorizes the Secretary to create the temporary labor relations
subsystem, empowers him to abolish collective bargaining
altogether—a position with which even the Secretary disagrees.
Because I believe that subsection (m) does no such thing, I
respectfully dissent from Parts I and II of the court’s opinion.
I.
Chapter 99 permits the Secretary to create a new “human
resources management system.” 5 U.S.C. § 9902(a). Any new
system the Secretary creates must comply with a series of
“system requirements.” Id. § 9902(b). For example, the new
personnel system must be “flexible” and “contemporary,” may
not impinge on certain antidiscrimination and whistleblower
protections, and must include a “performance management
system” that incorporates a “fair, credible, and transparent
employee performance appraisal system.” Id. § 9902(b)(1),
(b)(2), (b)(3)(C), (b)(6)(B). At issue here is subsection (b)(4)’s
system requirement—that any new personnel system “ensure
that employees may organize, bargain collectively as provided
for in this chapter, and participate through labor organizations
of their own choosing in decisions which affect them, subject to
the provisions of this chapter and any exclusion from coverage
or limitation on negotiability established pursuant to law.” Id.
§ 9902(b)(4).
Proceeding under Chevron’s first step, the court concludes
(1) the phrase “bargain collectively as provided for in this
2
chapter” unambiguously “ensures collective bargaining in the
first place only insofar as another subsection of the statute
provides for it,” Maj. Op. at 10 (emphasis added), and (2) the
only other subsection that “provides for” collective bargaining
is (d)(2), which prohibits the Secretary from waiving Chapter
71. See Maj. Op. at 10-12. Chapter 71, in turn, contains
provisions relating to and protecting federal-sector collective
bargaining. Given that subsection (m)(1) waives subsection
(d)(2), the court holds that the Secretary may create a temporary
labor relations subsystem free from subsection (b)(4)’s
collective bargaining guarantee. For several reasons, I believe
that this reading of Chapter 99 does not reflect the
“unambiguously expressed intent of Congress.” Chevron U.S.A.
Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843
(1984).
To begin with, subsection (b)(4) would be entirely
superfluous if, as the court holds, it protects only the collective
bargaining provided for in subsection (d)(2). Subsection (d)(2)
incorporates Chapter 71, which declares that employees enjoy
the right “to engage in collective bargaining with respect to
conditions of employment through representatives chosen by
employees under this chapter.” 5 U.S.C. § 7102(2). If this is all
subsection (b)(4) refers to, then its guarantee of collective
bargaining “as provided for in this chapter” adds nothing to the
statute. Given this surplusage, the court’s interpretation runs
afoul of a fundamental canon of statutory construction, i.e., that
all language in a statute be given meaning. See, e.g., TRW Inc.
v. Andrews, 534 U.S. 19, 31 (2001). This surplusage, moreover,
and the ambiguity it produces are fatal to the court’s effort to
resolve this case at Chevron step one. As we held in NLRB v.
FLRA, 952 F.2d 523 (D.C. Cir. 1992), a Chevron step one
analysis is not “plausibl[e]” where it yields statutory surplusage.
Id. at 532; see also Peter Pan Bus Lines, Inc. v. Fed. Motor
Carrier Safety Admin., 471 F.3d 1350, 1354 (D.C. Cir. 2006)
3
(“[The statute] contains surplusage under either reading and, as
a result, we cannot say that either proffered construction reflects
the Congress’s unambiguously expressed intent.”).
Second, the court’s interpretation produces a serious
structural defect. See FDA v. Brown & Williamson Tobacco
Corp., 529 U.S. 120, 132 (2000) (“In determining whether
Congress has specifically addressed the question at issue, a
reviewing court should not confine itself to examining a
particular statutory provision in isolation. The meaning—or
ambiguity—of certain words or phrases may only become
evident when placed in context.”). As the court acknowledges,
the temporary labor relations subsystem authorized by
subsection (m) is a component of the overall personnel system
authorized by subsection (a). See Maj. Op. at 5 (“Subsection
(m) of Section 9902 authorizes DoD to create a new labor
relations system within the National Security Personnel
System.”). Each of subsection (b)’s requirements, including
(b)(4)’s guarantee of collective bargaining, is a “system
requirement” for the overall personnel system. Because the
subsection (b) system requirements limit the Secretary’s
authority under Chapter 99, subsection (m)’s authorization to
create a temporary labor relations subsystem cannot, by itself,
empower the Secretary to create a subsystem free from the
statute’s system requirements. Congress could have exempted
subsection (m)’s temporary labor relations subsystem from
subsection (b)(4)’s system requirement by providing that the
authority granted by subsection (m)(1) exists notwithstanding
both subsection (d)(2) and (b)(4). But this Congress did not do.
Third, subsection (b)(4) cannot refer only to the collective
bargaining rights protected by subsection (d)(2)’s incorporation
of Chapter 71 because Chapter 71’s protections, including its
protections of collective bargaining, were waived by the very
House bill in which subsection (b)(4) originated. See Bell Atl.
4
Tel. Cos. v. FCC, 131 F.3d 1044, 1047 (D.C. Cir. 1997) (noting
the tools of statutory construction used in Chevron step one
analysis “include examination of the statute’s text, legislative
history, and structure”). Subsection (b)(4) first appeared in the
Civil Service and National Security Personnel Improvement
Act, H.R. 1836, 108th Cong. § 102 (2003) (as introduced),
which was later incorporated into the House version of the
Defense appropriations bill, see National Defense Authorization
Act for Fiscal Year 2004, H.R. 1588, 108th Cong. § 1121
(2003) (as passed by the House). Although each bill contained
subsection (b)(4)’s protection of collective bargaining verbatim,
including the phrase “as provided for in this chapter,” neither
included Chapter 71 in its list of nonwaivable provisions nor
protected collective bargaining in any other way. See H.R.
1836 § 102 (listing nonwaivable provisions in proposed
§ 9902(c)(2) and failing to list Chapter 71); H.R. 1588 § 1121
(same). In other words, nothing in subsection (d)(2)’s earlier
versions “provided for” collective bargaining in the way the
court ascribes to those words.
What, then, did these predecessor bills mean by the phrase
“bargain collectively as provided for in this chapter?” As I shall
explain in more detail in Part II, and as we recently held in
National Treasury Employees Union v. Chertoff, 452 F.3d 839
(D.C. Cir. 2006), the phrase “bargain collectively” is “a term of
art with a well-established statutory meaning.” Id. at 857.
Because that term has meaning to Congress, it had no need to
“provide for” collective bargaining elsewhere in the statute.
Instead, the words “as provided for in this chapter” signal that
other provisions of the bill modify Congress’s traditional
understanding of the term “bargain collectively.” For example,
although the duty to bargain normally attaches only at the level
of exclusive recognition, see, e.g., United Elec., Radio & Mach.
Workers v. NLRB, 986 F.2d 70, 75 (4th Cir. 1993) (holding duty
to bargain exists only with certified local bargaining unit, not its
5
uncertified international), each bill granted the Secretary
authority to choose whether to bargain with national unions or
their local affiliates, see H.R. 1588 § 1121 (proposed
§ 9902(f)(2), permitting the Secretary to choose to bargain at a
level above the level of exclusive recognition); H.R. 1836
(same). Making this point explicit, the House Report states that
the bill would “provide for collective bargaining at the national
level in addition to local collective bargaining.” See H.R. REP.
NO. 108-106, at 367 (2003). Thus, as originally understood by
the House, subsection (b)(4) “provided for” collective
bargaining in ways having nothing at all to do with Chapter 71.
Taking a different approach, the Senate preserved greater
protections for collective bargaining but granted the Secretary
less flexibility in fashioning a new approach to labor relations.
Although the Senate appropriations bill contained no similar
provision establishing a new personnel system for the
Department of Defense (DoD), see H.R. REP. NO. 108-354, at
758 (2003), the Senate Committee on Government Affairs had
reported out the National Security Personnel System Act,
S. 1116, 108th Cong. (2003), which became the Senate’s
starting point for its negotiations with the House, see 149 CONG.
REC. S14,419-20 (daily ed. Nov. 11, 2003) (statement of Sen.
Warner). The Senate bill contained nothing comparable to
subsection (b)(4). See S. 1116 § 9902(b). Instead, that bill
retained the collective bargaining protections found in Chapter
71 by listing that chapter as one of several nonwaivable
provisions. Id. § 9902(c).
Thus, both the House bill and the most comparable Senate
legislation offered some protection for collective bargaining.
The language that emerged from the Conference Committee
incorporated elements of each bill by (1) listing Chapter 71 as
a nonwaivable provision (as in the Senate bill), (2) waiving
Chapter 71 for six years (as in the House bill), and (3) adding
6
the subsection (b)(4) language (from the House bill). By the
court’s logic, when Congress added Chapter 71’s protections to
subsection (d)(2)’s list of nonwaivable provisions, thereby
strengthening the House bill’s protection of collective
bargaining rights, it actually radically redefined subsection
(b)(4), confining its system requirement to subsection (d)(2) and
freeing the Secretary to eviscerate collective bargaining
altogether—something Congress apparently accomplished
without amending or even referencing subsection (b)(4). I
understand Chapter 99 quite differently. By adding Chapter 71
to subsection (d)(2)’s list of nonwaivable provisions and
then—in subsection (m)—promptly waiving that same chapter
for six years, Congress indicated that the Secretary’s authority
to experiment with a new labor relations subsystem (as
advocated by the House) was time-limited, not that the
Secretary could exercise that authority without regard to
Chapter 99’s system requirements.
The court points to several floor statements in support of
the proposition that Congress understood the conference report
to have radically departed from both the House and Senate
versions of the DoD personnel bill. See Maj. Op. at 15-16. The
views of even these opponents of the bill, however, were far
from unanimous. Key senators made clear that although the
conference report left the Department free to depart from some
elements of Chapter 71, any temporary labor relations
subsystem must still comply with core elements of that chapter.
For example, Senator Collins, the Senate bill’s chief sponsor
and the chief Senate Republican conferee on this issue,
explained that while DoD had initially sought authority “to
waive virtually all personnel laws and regulations,” she was
“pleased we have not included that authority” in the final bill
and noted that she “fully expect[s] the labor relations system
developed by the Department will abide by the principles
enumerated in [C]hapter 71.” 149 CONG. REC. S14,428.
7
Agreeing, Senator Levin stressed that the compromise provided
“substantially better [collective bargaining protections] . . . than
comparable provisions included in the House bill.” Id. at
S14,439.
II.
As mentioned above, our recent decision in National
Treasury Employees Union v. Chertoff, 452 F.3d 839 (D.C. Cir.
2006), is critical to a proper understanding of the phrase
“bargain collectively as provided for in this chapter.” There, we
held that “[i]n the context of federal sector labor-relations,
collective bargaining is a term of art with a well-established
statutory meaning.” Id. at 857. In Chertoff, we dealt with a
statute that, like Chapter 99, permits a federal agency—in that
case, the Department of Homeland Security (DHS)—to create
a new personnel system. Also like Chapter 99, the DHS statute
requires that any new system “ensure that employees may . . .
bargain collectively.” 5 U.S.C. § 9701(b)(4); see Chertoff, 452
F.3d at 856-57. In determining the scope of this system
requirement, we held that the meaning of the term “bargain
collectively” derives from Chapter 71, which provides “the
framework for basic collective bargaining for most federal
sector employees.” Chertoff, 452 F.3d at 843. We reached this
conclusion despite the fact that the DHS statute permits
DHS—just like Chapter 99 permits DoD—to modify Chapter
71’s provisions regarding labor-management relations, including
those having some relation to collective bargaining. We
explained:
The Government argues that the Department was free
to “modify the collective bargaining provisions” of
Chapter 71 in promulgating a new HR system
pursuant to the [Homeland Security Act (HSA)]. This
is undoubtedly correct. But nothing in the HSA
8
suggests that the meaning of “collective bargaining”
under Chapter 71 could be disregarded by the
Department in its promulgation of the HR system.
There are many “provisions” relating to collective
bargaining in Chapter 71—e.g., resort to [the Federal
Labor Relations Authority], determination of
appropriate units, handling of refusal-to-bargain
complaints, exceptions to arbitral awards, and use of
an impasses panel—that the Department was free to
ignore in its Final Rule. The core meaning of
“collective bargaining” itself, however, could not be
ignored or supplanted. Why? Because the HSA
states explicitly that, in establishing a new HR system,
the Department “shall”
ensure that employees may organize, bargain
collectively, and participate through labor
organizations of their own choosing in
decisions which affect them, subject to any
exclusion from coverage or limitation on
negotiability established by law.
5 U.S.C. § 9701(b)(4). This statutory obligation is
mandatory, not optional. And if, as shown above,
“collective bargaining” means the same thing under
both the HSA and the FSLMS, then application of the
term under the latter statute cannot possibly be
irrelevant to an understanding of how the term applies
under the former.
Chertoff, 452 F.3d at 858 (internal citation omitted).
Here we face a similar statute. See also Smith v. City of
Jackson, 544 U.S. 228, 233 (2005) (noting “when Congress uses
the same language in two statutes having similar purposes,
9
particularly when one is enacted shortly after the other, it is
appropriate to presume that Congress intended that text to have
the same meaning in both statutes”). Enacted just one year after
the DHS statute, Chapter 99 protects collective bargaining in
language that mirrors the DHS statute word for word, except
that it adds the two emphasized phrases:
(b) Any system established under subsection (a) shall
...
(4) ensure that employees may organize,
bargain collectively as provided for in this
chapter, and participate through labor
organizations of their own choosing in
decisions which affect them, subject to the
provisions of this chapter and any exclusion
from coverage or limitation or negotiability
established pursuant to law.
5 U.S.C § 9902(b)(4) (emphasis added); see 5 U.S.C.
§ 9701(b)(4). Congress added this new language not to give
meaning to the term “bargain collectively” (as the court
suggests), but rather to make clear that elsewhere in Chapter 99
it was modifying the “core meaning” of collective bargaining in
order to give the Secretary additional flexibility. For example,
in Chertoff we held that granting an employing agency unilateral
authority to abrogate collective bargaining agreements conflicts
with the core meaning of collective bargaining. Chertoff, 452
F.3d at 860. Yet subsection (m)(8), which provides that the
temporary labor relations subsystem will “supersede all other
collective bargaining agreements,” 5 U.S.C. § 9902(m)(8), gives
the Secretary just this power. Similarly, under Chapter 71,
although employing agencies may not bargain over their
authority to assign employees, see 5 U.S.C. § 7106(a)(2), they
must negotiate over the procedures by which they exercise that
authority, see id. § 7106(b)(2). Chapter 99, however, states that
10
no provision of Title 5 shall limit the Secretary’s authority to
create a personnel system that regulates “the methods of
assigning, reassigning, detailing, transferring, or promoting
employees.” 5 U.S.C. § 9902(k)(1)(B). Through such
provisions, Congress demonstrated just how collective
bargaining “as provided for in this chapter” differs from
collective bargaining’s core meaning.
The court accuses me of “distort[ing] the plain meaning of
the phrase ‘as provided for,’ reading it to mean ‘unless
otherwise provided for.’” Maj. Op. at 12. My reading,
however, is driven by Chertoff, our obligation to avoid statutory
surplusage, and Chapter 99’s legislative history. To be sure,
Congress could have written subsection (b)(4) to read “except
as otherwise provided for” instead of “as provided for.” But
given Chertoff, the current language means exactly the same
thing. Imagine a statute allowing sixteen-year-olds to “drive as
provided for in this statute,” but providing elsewhere that they
may not do so without an adult in the car or after sunset. No
one would say that because this statute fails to “provide for” an
affirmative definition of driving, the DMV could issue
regulations barring all driving by sixteen-year-olds. Nor would
anyone fail to understand that the legislature instead used the
words “as provided for” to clarify that the driving authorized for
sixteen-year-olds differs from the normal rules of the road. The
same is true here. Just as my imaginary legislature understood
the term “drive,” Congress, according to Chertoff, understood
the term “bargain collectively,” leaving it with no need to define
the term elsewhere in Chapter 99. Likewise, just as my
hypothetical statute modifies the common meaning of “driving”
by requiring supervising adults and barring night-time driving,
Chapter 99 modifies collective bargaining’s core meaning by
permitting national-level bargaining and prohibiting bargaining
over the methods of assigning employees.
11
The court finds my hypothetical unhelpful because “the real
statute in this case does provide for collective bargaining.” Maj.
Op. at 12. But this argument merely restates the court’s
conclusion, i.e., that the words “as provided for” make sense
only if they refer to an affirmative definition elsewhere in the
statute. As the hypothetical demonstrates, however, this is
hardly the only plausible interpretation of “as provided for.”
Indeed, the House bill in which subsection (b)(4) first appeared
contained no definition of collective bargaining, thus
demonstrating that the House understood the phrase “as
provided for” to refer not to an affirmative definition of
collective bargaining rights, but rather to limitations on
collective bargaining found elsewhere in the statute. See supra
pp. 3-5.
That said, I recognize that my reading of the statute does
create surplusage within subsection (b)(4) itself because that
subsection also states that its requirements are “subject to the
provisions of this chapter.” See Maj. Op. at 12. Because such
surplusage makes it impossible to resolve this case at Chevron
step one, see supra pp. 2-3, I would proceed to Chevron’s next
step, deferring to the Secretary’s interpretation of the statute so
long as it is “reasonable.” Chevron, 467 U.S. at 844.
The Secretary’s interpretation of the statute is quite clear:
subsection (m)(1)’s waiver of Chapter 71 neither frees him from
subsection (b)(4)’s system requirement nor permits him to
abolish collective bargaining altogether. Describing the scope
of his Chapter 99 authority to create the temporary labor
relations subsystem, the Secretary stated in the preamble to the
challenged regulation that the statute “requir[es] that employees
be authorized to bargain collectively, as provided for in
[C]hapter 99 (not as provided for in [C]hapter 71).”
Department of Defense Human Resources Management and
Labor Relations Systems, 70 Fed. Reg. 66,116, 66,177 (Nov. 1,
12
2005). Far from contending that subsection (b)(4) has no
application to the temporary labor relations subsystem, the
Secretary instead insisted that the subsystem fully complies
with this system requirement:
The labor relations system is consistent with the
general parameters Congress provided, including the
process for involving employee representatives (see 5
U.S.C. 9902(m)(3) and (4)). It mandated that the new
system may not expand the scope of collective
bargaining beyond the scope of bargaining available
today under chapter 71, even where provisions of title
5 are waived or waivable (5 U.S.C. 9902(m)(7)), and
required that employees be authorized to organize and
bargain collectively within the framework established
in chapter 99, that is, within the framework of a
system that promotes a collaborative issue-based
approach to labor relations and which is developed,
established, and implemented to enable the
Department’s civilian workforce to better support the
Department’s national security mission (5 U.S.C.
9902(b)(4)).
Id. at 66,176 (second and third emphases added); see also id. at
66,177 (“Consistent with the enabling legislation, the labor
relations system specifically recognizes the right of employees
to organize and bargain collectively subject to limitations
established by law . . . .”).
Reiterating this view here, the Secretary argues that “[t]he
NDAA’s requirement that NSPS [the personnel system] ensure
collective bargaining thus contemplates that DoD and [the
Office of Personnel Management] should tailor their new labor
relations system to DoD’s national security mission, in ways that
may differ from the manner in which ‘collective bargaining’ is
13
understood elsewhere.” Appellants’ Br. 30 (emphasis added).
Similarly, at oral argument, DoD counsel stated that “[t]his labor
relations system that Congress authorized to be crafted is not
tied to Chapter 78 [sic], or any other collective bargaining
system, because the statute provides that employees may bargain
collectively as provided for in this chapter, and subject to the
provisions of this chapter, Section 9902(b)(4).” Oral Arg. Tr. 3.
Indeed, asked point blank whether the Secretary has authority to
eliminate collective bargaining altogether, agency counsel
answered no. See Oral Arg. Tr. 7-8. I would defer to this
perfectly reasonable interpretation of Chapter 99.
III.
Although the Secretary agrees with me that subsection
(b)(4)’s protections apply to the temporary labor relations
subsystem, he goes on to assert that in determining the extent of
collective bargaining protected by this system requirement—a
conceptually distinct question—we should look neither to
Chapter 71 nor Chertoff, but rather to DoD’s own regulation.
Relying on subsection (m)(1), the Secretary argues that
Congress granted him “broad authority to redefine collective
bargaining within the framework of DoD.” Appellants’ Br. 31.
Thus, according to the Secretary, the definition of “bargain
collectively as provided for in this chapter” includes not only the
substantive changes to the core meaning of collective bargaining
found in Chapter 99, but also the temporary labor relations
subsystem the Secretary himself creates. See 5 C.F.R.
§ 9901.903 (defining the word “collective bargaining” by
adopting, nearly word for word, the definition of collective
bargaining found in Chapter 71, but qualifying the obligation to
bargain by adding that such obligation must be met “pursuant to
5 U.S.C. [§] 9902 and this subpart” (emphasis added)); compare
with 5 U.S.C. § 7103(a)(12) (defining collective bargaining in
Chapter 71).
14
As the unions correctly argue, the Secretary’s interpretation
runs counter to Chertoff, which also explains why the court’s
alternative Chevron step two holding fails. In Chertoff, DHS
argued—much as the Secretary does here—that the mere
authority to create a new human resources system freed it from
the statute’s system requirements, including protections for
collective bargaining. See Chertoff, 452 F.3d at 856-57.
Finding that argument “completely unconvincing,” Chertoff
explains that because Congress “specif[ied] ‘system
requirements’ that DHS must follow in promulgating a [human
resources] system,” DHS “does not have a free hand to construct
a [human resources] system entirely as it prefers.” Id. So too
here. Although Chapter 99 authorizes the Secretary to create a
temporary labor relations subsystem that modifies Chapter 71
and “address[es] the unique role that the Department’s civilian
workforce plays in supporting the Department’s national
security mission,” the Secretary may not create that subsystem
free from Congress’s overall system requirements, including
subsection (b)(4)’s protection of collective bargaining. The
addition of the phrases “as provided for in this chapter” and
“subject to the provisions of this chapter” to subsection (b)(4)’s
collective bargaining system requirement does not distinguish
this case from Chertoff. As the Secretary agrees, those phrases
refer to substantive restrictions on collective bargaining rights
found elsewhere in the statute. Subsection (m)(1), however,
contains no substantive modification of core collective
bargaining rights. Just as the statute at issue in Chertoff gave
DHS general authority to promulgate a new personnel system,
subsection (m)(1) vests the Secretary with general authority to
create the temporary labor relations subsystem; it says nothing
at all about collective bargaining. See Chevron, 467 U.S. at
842-43 (“If the intent of Congress is clear, that is the end of the
matter; for the court, as well as the agency, must give effect to
the unambiguously expressed intent of Congress.”).
15
The Secretary, however, is not without significant
flexibility. In devising the temporary labor relations subsystem,
the Secretary has no obligation to comply with any part of
Chapter 71 that does not implicate the core meaning of
collective bargaining. Moreover, he may, pursuant to subsection
(b)(4), depart from the core meaning of collective bargaining to
the extent authorized elsewhere in Chapter 99. Applying these
principles, I would hold that most, but not all, of the challenged
regulation complies with subsection (b)(4)’s system
requirement. I’ll begin with the provisions that comply.
First, as the court notes, the regulation imposes conduct
restrictions on employee representatives, requiring them to meet
the same standards imposed on all DoD civilian employees. See
Maj. Op. at 24; 5 C.F.R. § 9901.914(a)(4). Union-appellants
fear that such a requirement could unduly impede the vigorous
advocacy essential to effective collective bargaining. I agree
with the court, however, that we should defer to the Secretary’s
interpretation of the regulation as barring only “vulgar or
sexually explicit language” and “physical intimidation.” 70 Fed.
Reg. at 66,182; see, e.g., Wyo. Outdoor Council v. U.S. Forest
Serv., 165 F.3d 43, 52 (D.C. Cir. 1999) (“The agency’s
construction of its own regulation is controlling ‘unless it is
plainly erroneous or inconsistent with the regulation.’” (quoting
United States v. Larionoff, 431 U.S. 864, 872 (1977))). So
construed, the regulation intrudes not at all on the core meaning
of collective bargaining because it is “preposterous” to think that
“employees are incapable of . . . exercising their . . . statutory
rights without resort to abusive or threatening language or
without resort to a physical response.” Dep’t of the Air Force v.
FLRA, 294 F.3d 192, 201 (D.C. Cir. 2002) (internal quotation
marks and citation omitted).
Second, under the regulation, “implementing issuances”—
directives that “carry out a policy or procedure implementing”
16
the new personnel system, 5 C.F.R. § 9901.103—supersede any
conflicting provisions contained in collective bargaining
agreements. 5 C.F.R. § 9901.905(a). In Chertoff, we found
such authority to be flatly inconsistent with the core meaning of
collective bargaining. Chertoff, 452 F.3d at 858-60. But unlike
the statute at issue there, Chapter 99 expressly states that “the
labor relations system developed or adjusted under this
subsection . . . shall supersede all other collective bargaining
agreements.” 5 U.S.C. § 9902(m)(8). This provision represents
a clear example of how Congress “provided for” collective
bargaining differently than it had in the statute at issue in
Chertoff.
Third, the challenged regulation expands the range of
management rights issues not subject to collective bargaining to
include procedures governing “hir[ing], assign[ing], and
direct[ing] employees in the Department; . . . assign[ing] work,
mak[ing] determinations with respect to contracting out, and . .
. determin[ing] the personnel by which Departmental operations
may be conducted.” 5 C.F.R. § 9901.910(a)(2), (b). Under
Chapter 71, procedures regarding such issues are negotiable.
See 5 U.S.C. § 7106(b)(2). By contrast, Chapter 99 states that
no provision of Title 5 may limit the Secretary’s authority to
promulgate regulations regarding the “methods of assigning,
reassigning, detailing, transferring, or promoting employees.”
5 U.S.C. § 9902(k)(1)(B). Although I think it not entirely clear
whether Congress, by using the term “methods,” intended to
give the Secretary sole and nonnegotiable authority to determine
the “procedures” for each of these employment actions, the
Secretary’s construction of that term seems quite reasonable,
and the unions offer no basis for concluding otherwise. See
Chevron, 467 U.S. at 843 (“[I]f the statute is silent or ambiguous
with respect to the specific issue, the question for the court is
whether the agency’s answer is based on a permissible
construction of the statute.”).
17
In certain other respects, however, I agree with the unions
that the regulation’s management rights provision runs counter
to Chapter 99. For example, the regulation allows “any
management official or supervisor . . . to take whatever other
actions may be necessary to carry out the Department’s
mission.” 5 C.F.R. § 9901.910(a), (a)(2). In Chertoff, we
invalidated an identical regulation, explaining that it would
“[p]resumably . . . empower[] DHS to take any matter off the
bargaining table at any time, regardless of what concessions
have already been made by union representatives.” Chertoff,
452 F.3d at 862. As the Secretary wisely concedes, insofar as
this provision extends beyond the authority granted in
subsection (k)(1), the district court correctly determined that the
regulation violates subsection (b)(4). See Appellants’ Br. 33
n.1.
The new management rights provision also bars negotiation
over the procedures through which management “determine[s]
. . . the technology, methods, and means of performing work.”
5 C.F.R. § 9901.910(a)(2), (b). This provision precludes
bargaining over the procedures regarding many day-to-day
operational matters, yet I see nothing in Chapter 71 recognizing
such a broad management right, see generally 5 U.S.C. § 9701,
nor can subsection (k)(1) be so construed. To be sure,
subsection (k)(1) frees the Secretary from any duty to bargain
over “assigning, reassigning, detailing, transferring, or
promoting employees,” 5 U.S.C. § 9902(k)(1)(B) (emphasis
added), but the subsection says nothing at all about the methods
and means of performing work.
The regulation restricts collective bargaining with respect to
management rights in still another way: it limits the scope of
bargaining over “appropriate arrangements” for employees
adversely affected by the exercise of management rights. See 5
18
C.F.R. § 9901.910(f)(2). Under Chapter 71, such appropriate
arrangements are always negotiable, see 5 U.S.C. § 7106(b)(3),
and even under the challenged regulation, management must
negotiate over appropriate arrangements for employees affected
by the exercise of management rights protected by 5 C.F.R.
§ 9901.910(a)(3), including the authority “[t]o lay off and retain
employees, or to suspend; remove; reduce in pay, pay band, or
grade; or take other disciplinary action against such employees.”
See 5 C.F.R. § 9901.910(a)(3), (f)(1)(i). With respect to the
exercise of other management rights, including the previously
described rights to assign employees and determine the methods
and means of work, the unions assert that the regulation requires
negotiation regarding only “personal hardships and safety
measures.” Appellees’ Br. 27 (quoting 5 C.F.R.
§ 9901.910(f)(1)(ii)). This is incorrect. The regulation states
that the “[a]ppropriate arrangements within the duty to bargain
include proposals on matters such as personal hardships and
safety measures.” 5 C.F.R. § 9901.910(f)(1)(ii) (emphasis
added). By using the word “include,” the Secretary made clear
that this list of negotiable appropriate arrangements is by no
means exclusive.
The regulation, however, goes on to narrow significantly the
Secretary’s duty to bargain over appropriate arrangements:
“[T]he duty to bargain do[es] not include proposals on matters
such as the routine assignment to specific duties, shifts, or work
on a regular or overtime basis.” Id. § 9901.910(f)(2). In
Chertoff we held that a similar regulation conflicted with
collective bargaining’s core meaning, see Chertoff, 452 F.3d at
862 (invalidating regulation that similarly took these issues off
the table, but also constrained negotiation over all appropriate
arrangements to exercise of management rights that had “a
significant and substantial impact on the bargaining unit, or on
those employees in that part of the bargaining unit affected by
the action or event”); see also 5 C.F.R. § 9701.511(e)(2)(i).
19
Nothing in Chapter 99 authorizes a different result here.
Although subsection (k)(1) does expand management rights,
neither that subsection nor anything else in Chapter 99 permits
the Secretary to restrict the right to negotiate over arrangements
designed to mitigate the effects of the exercise of management
rights.
Finally, the regulation prohibits all employees from
bargaining collectively regarding their pay. See 5 C.F.R.
§§ 9901.305 (providing that pay system is not subject to
bargaining), 9901.903 (barring bargaining regarding “[t]he pay
of any employee or for any position”). Federal law prohibits
U.S. government employees whose wages are set by statute
from bargaining over their compensation. See Fort Stewart Sch.
v. FLRA, 495 U.S. 641, 649 (1990) (“The wages and fringe
benefits of the overwhelming majority of Executive Branch
employees are fixed by law, in accordance with the General
Schedules of the Civil Service Act, and are therefore eliminated
from the definition of ‘conditions of employment’ [that are
subject to a duty to bargain].” (internal citation omitted)).
DoD’s workforce, however, includes employees who work for
what are known as non-appropriated fund instrumentalities
(NAFIs), organizations whose funding comes from user fees and
whose employees have historically bargained over their rate of
pay. See Appellees’ Br. 29. Such employees include those
working in DoD schools, day care centers, and cafeterias. Under
the challenged regulation, NAFI employees no longer enjoy the
right to bargain over their pay. The Secretary offers two
arguments in support of his authority to make this change,
neither of which is convincing.
First, the Secretary cites his Chapter 99 authority to create
a new “pay for performance evaluation system.” 5 U.S.C.
§ 9902(b)(6)(I). Yet the Secretary nowhere explains how
subsection (b)(4)’s collective bargaining system requirement
20
conflicts with a pay for performance system. In fact, as the
unions explain, the mechanics of how pay for performance
would work, including the base level of pay, the evaluation
criteria, and the degree to which employees are rewarded (or
punished) for their job performance, all represent perfectly
acceptable subjects of collective bargaining. See Appellees’ Br.
30.
Second, falling back on his general argument that subsection
(m)(1) permits him to redefine collective bargaining, the
Secretary asserts that since most federal employees may not
bargain over their pay, nothing inherent in the term “collective
bargaining” protects that right. But this argument ignores the
fact that “most” federal employees may not bargain over their
wages because their compensation is set by statute. The
Secretary never explains how Chapter 99 permits him to prohibit
collective bargaining over compensation by employees whose
pay is not set by statute.
IV.
In sum, the court’s Chevron step one analysis fails because
nothing in Chapter 99 “unambiguously” permits the Secretary
to abolish collective bargaining altogether. I would defer to the
Secretary’s perfectly reasonable interpretation that subsection
(b)(4) applies to subsection (m)’s temporary labor relations
subsystem. The Secretary’s later conclusion that he may define
subsection (b)(4)’s protections as he sees fit, however, runs
counter to Chertoff. Any departure from the core meaning of
collective bargaining must be authorized by Chapter 99.
Applying this standard, I would vacate several aspects of the
regulation’s expansion of management rights, as well as its
abolition of collective bargaining over NAFI pay.