dissenting:
While I find this case to be a close one and the majority’s reasoning to be convincing, I am not convinced. As the majority notes, section 7117(a)(1) provides that the duty to bargain does not extend to matters that are inconsistent with a “government-wide rule or regulation.” It is established that Requirement 4 is such a rule or regulation. See AFGE, Local 2782 v. FLRA, 803 F.2d 737, 742 (D.C.Cir.1986) (“Local 2782”). As the majority further notes, in Local 2782 we affirmed the Authority’s determination that the bargaining proposal affording preference to “repromotion eligi-bles” (those employees demoted through no fault of their own) was nonnegotiable since it was inconsistent with FPM § 1-4. That is the same requirement before the Court in the instant case. Requirement 4 authorizes agencies to fill their job openings from enumerated sources and directs that “[i]n deciding which source or sources to use, agency’s have an obligation to determine which is most likely to best meet the agency mission objectives, contribute fresh ideas and new viewpoints, and meet the agencies affirmative action goals.” The bargaining proposal offered by Local 32 and opposed by the Office of Personnel Management is inconsistent with that “government-wide rule or regulation,” just as that of Local 2782. The creation of the preference for RIF victims is simply inconsistent with the objectives required in the quoted portion of Requirement 4.
I appreciate the majority’s concern that a government-wide rule or regulation restating a statutory management right could protect from bargaining something that Congress had otherwise deemed an appropriate bargaining subject under a specific section, such as section 7106(b)(3). I simply do not accept the majority’s conclusion that this is that case. Requirement 4 is not simply a restatement of the management rights set forth in section 7106(a). Requirement 4 informs and molds the discretion of management toward the achievement of certain objectives not referenced in the statute. Therefore, I would conclude that this proposal is nonnegotiable and that we have not yet reached “another day” as we do not yet face the “anomalous situation” posed in Local 2782, 803 F.2d at 742.
In determining whether “another day” has arrived, I am troubled by the implications of the majority’s “practical effects” standard for determining what constitutes a “restatement” of statutory prerogatives. This test seems to me to risk draining the content from the nonnegotiability of government-wide rules and regulations established by section 7117(a). Any time the Executive exercises its discretion in personnel matters in a fashion not inconsistent with the discretion left it by the Legislative Branch, the resulting rule or regulation could certainly be said to have the same practical effect as an underlying statute. I do not accuse the majority of going that far in stating the test; I do, however, fear that the precedent may lurk in this test for a future judicial landscape in which every personnel regulation may either be invalid as being beyond the scope of the Executive’s authority or be negotiable as having the practical effect of restatement, at least where it acts in an area otherwise subject *173to negotiation. While I commend the majority for emphasizing the narrowness of its holding, I fear that its test may achieve the germ of progeny more ungainly than either the Authority or the majority meant to create.
I do not feel compelled to express opinion as to whether the “[njothing in this section ” language of section 7106(b) has any effect on the negotiability of matters rendered nonnegotiable by other sections of the Act, e.g., section 7117(a). Nor do I conclude that the deference owed the Authority’s interpretation of its enabling statute under Chevron informs our decision in this case. What is determinative is not the Authority’s interpretation of the statute, but the interpretation of Requirement 4, a regulation of OPM whom we owe deference here, not the Authority.
In sum, I find this case not fundamentally different than Local 2782. In my view, we still await the day when a “proposal concerns a subject matter that Congress clearly intended to be ‘appropriate’ for bargaining,” 803 F.2d at 742, yet runs afoul of a government-wide rule or regulation.
I respectfully dissent from the majority’s conclusion that this is that regulation.