dissenting:
The majority has unfortunately misappropriated a policy choice that Congress delegated to the FLRA. The “taking” is so palpable that if private property rather than regulatory authority were at stake, just compensation would be owed. As the Supreme Court long ago observed with respect to judicial review of agency-ordered remedies: “Because the relation of remedy to policy is peculiarly a matter for administrative competence, courts must not enter the allowable area of the Board’s discretion and must guard against the danger of sliding unconsciously from the narrow confines of law into the more spacious domain of policy.” Phelps Dodge Corp. v. Labor Board, 313 U.S. 177, 194, 61 S.Ct. 845, 852, 85 L.Ed. 1271 (1941).
So, recognizing this danger, we have said: “Under the statute,1 the FLRA has broad discretion (as does the National Labor Relations Board ... under the National Labor Relations Act ...) in framing appropriate remedies for unfair labor practíc-ese.]” AFGE v. FLRA, 785 F.2d 333, 336 (D.C.Cir.1986) (footnote omitted). “Accordingly, our review of the FLRA’s remedial determination is highly deferential, and we will uphold a remedial order of the FLRA ‘unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act.’ ” AFGE SSA Council 220 v. FLRA, 840 F.2d 925, 928 (D.C.Cir.1988) (quoting Professional Air Traffic Controllers Org. v. FLRA, 685 F.2d 547, 585 (D.C.Cir.1982)). Notwithstanding this prior recognition that the re*302medial choice is, by the very language of the statute, delegated to the Authority and that our review of its choice is carefully circumscribed, the majority now in effect announces a new policy: that the Authority must routinely issue “retroactive bargaining orders” (meaning any agreement that flows from an order to bargain must apply retroactively to the date of violation insofar as it involves added monetary compensation to employees), declaring it an “abuse of discretion” for the Authority to do otherwise. Since, if such an order is required here, it is hard to imagine a case in which it would not be called for, the majority has by judicial decision effectuated a major and far reaching amendment to the FLRA.
This case arises out of the relocation and consolidation of two groups of employees at separate sites to a single new location. The employees’ union and representatives of the IRS bargained about various issues regarding this move, and reached agreement on all but two proposals, which related to payment for parking costs and reserved parking spaces for bargaining unit employees. The IRS contended that payment for employee parking was nonnegotiable because otherwise it would be obligated to reimburse employees for increased commuting costs. This is a close case; it is not at all clear how much legal authority the IRS enjoys to agree to subsidize employee parking. Under the Travel Expense Act, 5 U.S.C. §§ 5701 et seq. (1982), and the Federal Travel Regulations, 41 C.F.R. Part 101-7 (1987), as interpreted by the Comptroller General, federal employees must bear as personal commuting expenses all costs of transportation including parking fees. See NTEU v. Family Support Admin., Dep’t of Health and Human Servs., 30 F.L.R.A. 677, 678 (1987). In 1982 the Authority had held nonnegotiable a union proposal that:
All employees transferred will be guaranteed that they will suffer no financial loss due to increased commuting transportation cost i.e., higher parking fees, longer commutes, removal of ability to ride public transportation or participate in car/vanpools.
AFGE v. General Servs. Admin., 9 F.L.R.A. 825, 827 (1982) (emphasis added). The FLRA believed this proposal inconsistent with federal law (and thereby nonnegotiable, see 5 U.S.C. § 7117(a)(1),) because 5 U.S.C. § 5704 provides travel reimbursement only if a federal employee is “engaged in official business for the Government”; costs of travel between residence and official duty stations “must be borne by employees.” 9 F.L.R.A. at 827. The IRS relied, inter alia, on this case when it refused to bargain with petitioner over its proposal. The FLRA, however, distinguished General Services Administration because the proposal here involved parking rather than commuting (ignoring inexplicably that the proposal in General Services Administration also referred to financial loss attributed to higher parking fees) and because of an IRS regulation which allows the Regional Commissioner to provide parking for employee use when “necessary to the operational effectiveness of the service.” 2 Subsequent to its decision in this case, the FLRA has ruled, also in the context of a dispute concerning a relocation, that a proposal requiring an agency to reimburse employees for their parking expenses “to the extent that they exceed parking costs [at the prior location]” is nonnegotiable. See NTEU v. Family Support Admin., Dep’t of Health and Human Servs., 30 F.L.R.A. 677, 679 (1987). These FLRA decisions, at the very least, indicate that the IRS’ nonnegotiability argument was quite strong. Yet the majority insists on imposing a penalty for refusing to bargain over a subject that even the FLRA has, in other cases, held to be nonnegotiable.
In response to the IRS’ additional contention that the proposal interfered with the agency’s right to determine its own budget —which would also render the proposal nonnegotiable, see 5 U.S.C. § 7106(a)(1) — the Authority observed that *303GSA had already leased 650 parking spaces at the new facility, some (the number unknown) of which were designated for bargaining unit employees. Thus, according to the Authority, the union’s proposal could be seen as directed towards the distribution of those spaces. The union’s proposal, furthermore, contained several options (and stated that the agency would provide rental spaces to employees only to the extent it had legal authority to do so). It was therefore unclear whether the proposal demonstrably would require additional costs. See AFGE & Air Force Logistics Command, Wright-Patterson Air Force Base, 2 F.L.R.A. 604, 608 (1980), enforced as to other matters sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C.Cir.1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945, 102 S.Ct. 1443, 71 L.Ed.2d 658 (1982).
In short, it was not obvious prior to the Authority’s opinion that the petitioner’s proposal was negotiable, nor for that matter, is it particularly clear after the opinion as the parties go forward to negotiate, precisely what are the boundaries of those negotiations. And certainly it is not evident, as the Authority itself notes, that any specific employee will receive what the majority assumes — “monetary compensation.”
This is not a case — and this point is crucial — where the employer unilaterally took away benefits that it was supplying the employees. The IRS employees transferred to the new location in Houston came from two different facilities. Those who had worked in the Federal Building had “extensive bus service and a variety of daily, weekly, and monthly parking facilities available in the area,” Opinion of Administrative Law Judge at 13, reprinted in Joint Appendix at 24 (presumably at their own expense), and those who had worked at the Westpark office found free parking (presumably on the street), but in neither situation had the government supplied parking of any kind. It is therefore hard for me to imagine a less appropriate case for retroactive relief — whatever it is called. Indeed, I dare say that if the Authority had fashioned exactly the remedy upon which the majority insists, it would have faced a powerful challenge by the IRS for acting in an arbitrary and capricious fashion.
The majority contends that an order requiring that a future agreement to be reached by the parties have retroactive effect (a retroactive bargaining order or RBO) is called for both by our prior cases and the statute’s purpose. But we have never held that an RBO is an appropriate, let alone, routine remedy that the FLRA must apply. In AFGE v. FLRA, 785 F.2d 333 (D.C.Cir.1986), we considered whether an order obliging the agency to restore the status quo ante after a unilateral change was required. There, the EEOC had unilaterally imposed a promotion freeze and refused to bargain with its union over its action. The union, as petitioner in this court, argued that the Authority was obliged to order that employees be placed in the position they would have enjoyed, but for the agency’s action — to receive the promotions to which they were entitled absent the freeze. Although we affirmed the Authority, we warned that in the future, budgetary restraints would not suffice to excuse the Authority’s refusal to require the status quo ante. Id. at 337-38. The status quo, the base line prior to the agency’s action, could, in that earlier case, be determined without regard to future bargaining. Similarly, if, in the present case, the IRS had previously provided parking or compensation for parking and then revoked those benefits, that would be analogous to AFGE v. FLRA and an order restoring employees to their prior position would be consistent with the views we expressed. The majority’s opinion is not.
Nor in AFGE SSA Council 220 v. FLRA did we do more than require that the Authority on remand consider whether individual employees adversely affected by an agency’s unilateral introduction of employee evaluation plans be granted monetary status quo ante relief to make them whole. We directed the agency’s attention to “losses actually suffered by employees,” 840 F.2d at 930,3 because of the new evaluation *304plans. In no comparable sense can it be said that the majority’s opinion requires that the IRS employees be compensated for “actual losses,” because the IRS has not taken away from the employees anything that it has previously provided.
The Ninth Circuit, moreover, has considered this question, and rejected the majority’s approach. NTEU v. FLRA, 732 F.2d 703 (9th Cir.1984). In that case, the United States Customs Service established three new shifts at Honolulu International Airport, but refused to negotiate with the employees’ union regarding starting and quitting times and lunch hours for the new tours of duty. Id. at 704. The FLRA determined that this refusal was an unfair labor practice, but refused to adopt the administrative law judge’s order that the Customs Service be required to make employees whole for loss suffered due to the failure to bargain by means of what was in effect an RBO.4 Id. Rebuffing the union’s challenge to the FLRA’s actions, the Ninth Circuit accepted the Authority's rationale that where there is no preexisting baseline that the Authority may order reinstated, or that may be used against which to measure damages, a “status quo ante ” remedy was not required to effectuate the statute, and would furthermore be speculative. Id. at 706. The court dismissed the argument the majority embraces, that a retroactive order was necessary to effectuate the purposes of the statute, and instead correctly applied the basic proposition of administrative law: “If an agency’s construction of the statute that it is primarily responsible for implementing is reasonably defensible, we may not reject that construction simply because we prefer another view.”
The majority’s reliance on the statute’s purpose is, in my judgment, even more tenuous than its case support. It is argued that Congress intended that the FLRA’s role be similar to that of the NLRB. That is generally correct and we have often said it. See, e.g., Turgeon v. FLRA, 677 F.2d 937, 939-40 (D.C.Cir.1982). But it also follows that Congress intended the relationship between the courts of appeals and the Authority to track that between the courts of appeals and the NLRB — and that implication the majority ignores.
In fact, the NLRB has never fashioned a remedy akin to the one the majority insists upon. See Yorke v. NLRB, 709 F.2d 1138, 1145-46 (7th Cir.1983), cert. denied, 465 U.S. 1023, 104 S.Ct. 1276, 79 L.Ed.2d 680 (1984). This court and the NLRB, in a jurisprudential pas de deux in the 1970s, see Tiidee Products, Inc., 174 N.L.R.B. 705 (1969); International Union of Elec., Radio and Machine Workers v. NLRB, 426 F.2d 1243 (D.C.Cir.), cert. denied, 400 U.S. 950, 91 S.Ct. 239, 27 L.Ed.2d 256 (1970); Ex-Cell-O Corporation, 185 N.L.R.B. 107 (1970), enforced as modified sub nom., International Union, United Automobile, Aerospace and Agricultural Implement Workers of America v. NLRB, 449 F.2d 1046 (D.C.Cir.1971); International Union of Elec., Radio and Machine Workers v. NLRB, 502 F.2d 349 (D.C.Cir.1974), cert. denied, 421 U.S. 991, 95 S.Ct. 1997, 44 L.Ed.2d 481 (1975); International Union of Elec., Radio and Machine Workers v. NLRB, 502 F.2d 349, 361 (D.C.Cir.1974) (Bazelon, J.) (statement on denial of rehearing en banc), expressed sharply different views as to the Board’s authority to impose remedies approaching that which the majority calls for.5 Still, recognizing the limitations of judicial review of an agency choice of remedy, we never directed the NLRB to impose a remedy of our choice. And the Board, despite repeated requests to consider our view, has declined to adopt it. See, e.g., J.P. Stevens & Co., Inc. and Textile Workers Union of America, 205 N.L.R.B. 1032 (1973). Even under our reading of the NLRA, however, we thought the NLRB justified in imposing “make-whole relief” only when an employer violated 8(a)(5) by refusing to bargain for friv*305olous grounds. In this case, there is no allegation that the IRS’ refusal to bargain was frivolous; to the contrary, as I have shown, the negotiability question raised by the agency is quite substantial. Thus, the FLRA’s cease and desist order issued here was adequate even judged according to the most expansive view of what qualifies as a suitable remedy under the National Labor Relations Act.
To be sure, the Federal Labor Relations Act specifically provided that the Authority have power the NLRB lacks to “requir[e] the parties to renegotiate a collective bargaining agreement in accordance with the order of the Authority and requir[e] that the agreement, as amended, be given retroactive effect.” 5 U.S.C. § 7118(a)(7)(B). Since Congress granted the Authority power to actually fashion the content of a collective bargaining agreement, it is not surprising that it also authorized the FLRA to issue an order exercising that power retroactively. When the Authority does so, the retroactivity aspect of the order does not appreciably interfere with free collective bargaining any more than the amended contract. But it is by no means clear to me, as it apparently is to the majority, that Congress allowed (much less required) the Authority to order retroactivity of an agreement that it does not fashion, but is yet to be agreed upon by the parties. The latter step, as the majority concedes, necessarily involves an unforseeable impact on the parties’ bargaining behavior. Majority Op. at 299. That is why I think the majority incorrect in assuming that ordering re-troactivity of an agreement to be freely bargained is “less intrusive,” Majority Op. at 300, than making an agreement the Authority itself has fashioned retroactive.6 It is not really a question of less or more, it is rather of two entirely different concepts.
It is not even apparent that the language of the section upon which the majority relies is susceptible to the majority’s interpretation. On its face, it seems that retroac-tivity may attach only to an Authority order that incorporates the content of the agreement to be imposed. Of course, we would owe deference to the FLRA’s interpretation of that language if it agreed with the majority, but we are not here faced with that circumstance because the FLRA determined that an RBO was inappropriate. It turns Chevron on its head for a court of appeals to offer de novo its interpretation of a statute, entrusted to an administrative agency, and then oblige the agency to accept it.
It will be recalled that the majority does even more than conclude that the statute authorizes the Authority to issue an RBO without at the same time specifying the content of the agreement; it directs the FLRA to issue such an order in this case because, according to the majority, the statute requires an RBO to be used routinely.7 In other words, the majority has stripped the FLRA of discretion to determine when to use this new remedy; it must do so always. Indeed the majority remands to the Authority with directions essentially to enter a retroactive bargaining order, rather than, as is proper, to reconsider in light of the concerns expressed by the court. The effect of this judgment is exactly the same as if the court had itself amended' the Authority’s order and then enforced that order as amended. The Supreme Court, however, has unanimously reversed this court for issuing just such a judgment, holding that:
when a reviewing court concludes that an agency invested with broad discretion to fashion remedies has apparently abused that discretion by omitting a .remedy justified in the court’s view by the factual circumstances, remand to the agency for reconsideration, and not enlargement of the agency order, is ordinarily the reviewing court’s proper course.
NLRB v. Food Store Employees Union Local 347, 417 U.S. 1, 10, 94 S.Ct. 2074, *3062080, 40 L.Ed.2d 612 (1974).8 That the court’s judgment here is technically a remand is of little significance. As I read the court’s opinion, the Authority is not asked to reconsider the majority’s view of the appropriateness of an RBO; it is told to apply it with only limited discretion as to the order’s contours.
The majority justifies overriding the plain language of the statute, which gives the Authority discretion to choose the remedy “it considers appropriate to carry out the policies of this chapter,” 5 U.S.C. § 7105(g)(3) (emphasis added), based on a general comment one Congressman made on the day after the Act was passéd. We have only recently stated, however, that: “It should go without saying that post-enactment legislative history is singularly unavailing in the sensitive process of divining meaning.” Continental Air Lines, Inc. v. Dep’t. of Transp., 843 F.2d 1444, 1447 n. 3 (D.C.Cir.1988). And, we even previously observed that another passage from the same speech by Congressman Ford should be given “little weight.” AFGE v. FLRA, 712 F.2d 640, 647 & n. 29 (D.C.Cir.1983). Be that as it may, this comment, even had it been made as part of the legislative history instead of in lieu of it, would hardly satisfy the specific intent necessary under Chevron to substitute a judicial construction for that of an agency. Congressman Ford’s statement, upon which the majority rests so very much, was only that section 7118(c)(7)(B) was inserted to give the Authority the power that the NLRB lacked — which is quite obvious — and that the mandatory language used in section 7118(a)(7) that the Authority “shall issue an order” (in the event of an unfair labor practice) means they “must issue a remedy appropriate to the violation.” That comment does not seem to give any support to the majority’s notion that section 7118(a)(7)(B) or any portion of it should be routinely applied. Congressman Ford did not say that it should; he only stated that the agency must choose the appropriate remedy, which adds nothing to the plain meaning of the statutory language.
Certainly the House Committee Report does not support the majority’s position. The House version of section 7118 is very close to the statutory language finally adopted by both the Senate and the House, while the Conference Report does not refer to this section at all. As such, the House Report is clearly the most authoritative legislative history regarding this provision. See American Jewish Congress v. Kreps, 574 F.2d 624, 629 n. 36 (D.C.Cir.1978); American Airlines, Inc. v. Civil Aeronautics Bd., 365 F.2d 939, 948-49 (D.C.Cir.1966). It states that:
If the Authority (or its designee) deter*307mines that an agency or labor organization named in the complaint has engaged in or is engaging in an unfair labor practice, the Authority or its designee is required to state its findings of fact and to issue and cause an order to be served on the agency or labor organization. The order shall require the party to take such action to carry out the policies of chapter 71. The action ordered may include: ceasing and desisting from the unfair labor practice; directing retroactive amendments of a collective bargaining agreement; requiring an award of reasonable attorney’s fees and reasonable costs and expenses of litigation; or requiring reinstatement of employees with backpay and interest.
H.R.Rep. No. 1403, 95th Cong., 2d Sess. 53 (1978), U.S.Code Cong. & Admin.News 1978, p. 2723. Thus, although the majority finds the FLRA’s action in this case to be contrary to the clear intent of Congress, Majority Op. at 296, there is actually nothing in the bona fide (or ersatz) legislative history that supports this view. The Committee Report merely lists a number of possible remedies, including the one imposed by the Authority in this case — an order to cease and desist from an unfair labor practice. The Report does not say that status quo ante relief in general, or retroactive bargaining orders in particular, should be imposed as a routine matter. Quite obviously, Congress expected (wrongly, as it now turns out), that the choice of remedy would be left to the sound discretion of the FLRA.
As the majority notes, one member of Congress, Congressman Ford, wanted an entirely new concept of judicial review of agency decision making to apply to all FLRA opinions. In the passage partially quoted by the . majority, Majority Op. at 301, he did not limit his exhortations to judicial review of the Authority’s choice of remedies9 and later in his remarks he was quite explicit:
“Moreover, in establishing judicial review we expect that the courts will scrutinize the actions of the Authority with less of the deference given other administrative agencies.”
124 Cong.Rec. at 38,718 (1978).
Had the Congress accepted Congressman Ford’s view, the majority’s extraordinarily broad assertion of judicial power would at least be more understandable. But, the Congress did not do so, see 5 U.S.C. § 7123(c) (providing for review of FLRA action in accordance with the Administrative Procedure Act, 5 U.S.C. § 706), and no court (including the Supreme Court—see BATF v. FLRA, 464 U.S. 89, 97 & n. 7, 104 S.Ct. 439, 444 & n. 7, 78 L.Ed.2d 195 (1983)) has heretofore placed this novel construction on the judicial review provisions of the Act based on Congressman Ford’s post-enactment speech.
Which brings me to what in truth is the crux of the majority opinion. My colleagues simply believe that a retroactive bargaining order is more appropriate than the one the Authority fashioned, because the Authority’s approach creates an insufficient disincentive to a government agency’s incorrect refusal to bargain over a union’s proposal. The difficulty with judicial policy-making is not only that it is unauthorized, however, it can also be inexpert. I am. afraid that is true here. The majority does not consider fully, in the manner we would require an agency under the APA, what effect its “interpretation” of the statute will have on the statute’s administration. Congress quite clearly contemplated that negotiability' (whether a union’s proposal is a proper subject of bargaining) would be a good deal more difficult to determine than is true in the private sector under the NLRA. There are a host of reasons why a government department may legitimately refuse to bargain. For example, the proposal may conflict with governmentwide personnel regulations, see AFGE Local 2782 v. FLRA, 803 F.2d 737 *308(D.C.Cir.1986), or it may concern any of a number of rights explicitly reserved to management by statute. See 5 U.S.C. § 7106(a).
In order to provide a speedy mechanism to resolve the inevitable disputes that would arise because of this thicket of complexity, Congress provided that a union could directly appeal an agency’s determination that a proposal was not negotiable. 5 U.S.C. § 7117(c)(1); see, e.g., Department of Defense v. FLRA, 659 F.2d 1140, 1147 (D.C.Cir.1981), cert. denied, 455 U.S. 945, 102 S.Ct. 1443, 71 L.Ed.2d 658 (1982). At the union’s option, however, it could also take the presumably more time-consuming route of charging an unfair labor practice, which requires the General Counsel to issue a complaint (if he agrees with the union).10 5 U.S.C. § 7118. Still, Congress obviously wished to encourage resolution of these issues where there was a reasonable difference of opinion (such as, at minimum, exists in our case) through direct negotiability appeals. See AFGE Local 2736 v. FLRA, 715 F.2d 627, 629-30 (D.C.Cir.1983). The majority's approach insures instead that a union will virtually always file an unfair labor practice because, in the event it prevails, it will have gained re-troactivity — whatever that is worth. Under these circumstances, the direct appeal that Congress fashioned to deal with precisely the problem that troubles the majority will be superseded.
* * * sfc * *
Long before the Supreme Court heightened the deference courts of appeals are obliged to afford administrative agencies’ interpretations of their own statutes in the landmark Chevron case, it was black letter administrative law that we were to defer to an agency’s choice of remedy. In that regard, it seems utterly inconceivable to me that it can fairly be said that the FLRA has selected an order that “patent \ly ] attempts to achieve ends other than those [that] effectuate the policies of the Act.” AFGE SSA Council 220, 840 F.2d at 928 (quoting Professional Air Traffic Controllers Org. v. FLRA, 685 F.2d at 585) (emphasis added). But, not only does the majority refuse to defer to the agency’s choice of remedies, it refuses to defer to the agency’s interpretation of its statute and refuses to remand for reconsideration in light of its concerns. As such, the majority opinion is a “triple threat” to settled principles of administrative law. Although we have the raw power, we have not the right to direct the agency to adopt a different remedy in a whole class of cases. Our interference with the Authority’s administration of the Act will have incalculable consequences on the behavior of future bargaining, but of one result I am quite certain: this circuit, which is the only one to adopt this novel interpretation of the Act, will, unless the majority opinion is superseded, certainly attract all petitions for review filed by unions seeking a retroactive bargaining order. I respectfully dissent.
Before WALD, Chief Judge; ROBINSON, MIKYA, EDWARDS, RUTH B. GINSBURG, STARR, SILBERMAN, BUCKLEY, WILLIAMS, D.H. GINSBURG and SENTELLE, Circuit Judges.ORDER
Respondent’s Suggestion for Rehearing En Banc has been circulated to the full court. The taking of a vote was requested. Thereafter, a majority of the judges of the court in regular active service voted in favor of the suggestion. Upon consideration of the forgoing, it is
Ordered, by the Court en banc, that this case will be considered and decided by the Court sitting en banc.
A future order will govern further proceedings.
. The statute provides:
Section 7105.
(g) ... the Authority may—
(3) ... require an agency or a labor organization to cease and desist from violations of this chapter and require it to take any remedial action it considers appropriate to carry out the policies of this chapter.
Section 7118.
(a)(7) If the Authority ... determines ... that the agency or labor organization named ... has engaged ... in an unfair labor practice, [it] ... shall issue ... an order—
(A) to cease and desist from any such unfair labor practice in which the agency or labor organization is engaged;
(B) requiring the parties to renegotiate a collective bargaining agreement in accordance with the order of the Authority and requiring that the agreement, as amended, be given retroactive effect;
(C) requiring reinstatement of an employee with backpay in accordance with section 5596 of this title; and
(D) including any combination of the actions described in subparagraphs (A) through (C) of this paragraph or such other action as will carry out the purpose of this chapter.
5 U.S.C. §§ 7105(g)(3) & 7118(a)(7) (1982) (emphasis added).
. As examples of what makes the provision of parking "necessary to the operational effectiveness of the service,” the regulation refers to parking requirements for executive personnel and for people who work unusual hours. This strongly suggests that parking is not to be provided as a routine matter pursuant to this regulation.
. Granted, we suggested the possibility that the FLRA might measure those "losses" in terms of a retroactive application of new collectively bargained procedures but we did not require that. 840 F.2d at 931.
. The term RBO apparently was not yet in use.
. Even there, this court did not suggest that the parties be required to make contract terms agreed to in the future retroactive. Rather, the court requested that the Board use its expertise to create a hypothetical contract based upon the Board’s view of what the parties would have agreed to, if the employer had bargained in good faith. This type of remedy — and not the retroactive bargaining order required by the majority opinion — is what § 7118(a)(7)(B) empowers the Authority to impose.
. The majority assumes that the union could waive retroactivity or bargain it away during negotiations, but that also is by no means clear under § 7118(a)(7)(B), which authorizes re-troactivity pursuant to an order of the Authority that sets the terms of the agreement. Of course, we do not have the Authority’s view of this question of statutory interpretation.
. The majority makes no effort to limit its rationale to the facts of this case.
. The Court explained the value of a remand:
"Application of that general principle in this case best respects the congressional scheme investing the Board and not the courts with broad powers to fashion remedies that will effectuate national labor policy. It also affords the Board the opportunity, through additional evidence or findings, to reframe its order to better effectuate that policy.”
417 U.S. at 10, 94 S.Ct. at 2080 (citation omitted). The majority all but ignores the Court’s teaching with regard to the utility and propriety of a remand.
Just a short time ago, this court in AFGE SSA Council 220 v. FLRA endorsed the Authority’s analytical framework for determining the suitability and extent of retroactive relief for failure to bargain over “impact and implementation” procedures. See 840 F.2d 925, 929 (D.C.Cir.1988). This framework ”involve[s] consideration of (1) whether and when notice [of the underlying event] was given to the union; (2) whether and when the union requested bargaining; (3) the willfulness of the agency conduct; (4) the nature and extent of the impact experienced by adversely affected employees; and (5) to what extent a status quo ante remedy would disrupt or impair the efficiency and effectiveness of the agency’s operations.” 840 F.2d at 928 (citing Federal Correctional Institution and AFGE Local 2052, 8 F.L.R.A. 604 (1982)). See also AFGE v. FLRA, 785 F.2d 333, 337 (D.C.Cir.1986) (noting that Authority may consider whether agency’s position was taken in good faith in fashioning relief). Surely the majority does not now intend to characterize these considerations as irrelevant to a decision to award retroactive relief, yet the majority implicitly broadcasts this very message by declaring its own remedial determination obligatory as a matter of law.
Even if the majority were correct in erecting a statutory presumption favoring RBOs, it should remand for future consideration, much as we did in AFGE SSA Council 220. See 840 F.2d at 929-31. For were the court actually authorized to restructure the variables in the relief equation, it would remain the Authority’s province to determine the answer.
. A more complete account of Congressman Ford’s statement reads as follows:
"[Congress harbored the] expectation that the courts will oversee the work of the Authority in this area {as well as others) in order to insure that the Authority vigorously enforces the purpose and provisions of title VII by adopting remedies sufficiently strong and suitable to make real the promise of the title and the obligation of its provisions.”
124 Cong.Rec. at 38,714 (1978) (emphasis added).
. Where an agency asserts that a proposal is nonnegotiable because it is inconsistent with a government wide rule or regulation, and the union responds by alleging that "no compelling need” exists for that rule or regulation, § 7117(b) provides the exclusive procedure for resolving that dispute. FLRA v. Aberdeen Proving Ground, Dep’t of Army, — U.S. —, 108 S.Ct. 1261, 99 L.Ed.2d 470 (1988). But where negotiability in general — and not “compelling need” — is in dispute, the statute provides that the union “may’’ appeal in accordance with § 7117(c). 5 U.S.C. § 7117(c)(1) (emphasis added).