dissenting:
The Supreme Court has emphasized that, in reviewing the decisions of the Federal Labor Relations Authority (FLRA), “the ‘deference owed to an expert tribunal cannot be allowed to slip into a judicial inertia which results in the unauthorized assumption by an agency of major policy decisions properly made by Congress.’ ” Bureau of Alcohol, Tobacco & Firearms v. FLRA (“BATF”), 464 U.S. 89, 97, 104 S.Ct. 439, 444, 78 L.Ed.2d 196 (1983) (quoting American Ship Building Co. v. NLRB, 380 U.S. 300, 318, 85 S.Ct. 955, 967, 13 L.Ed.2d 855 (1965)). Thus, reviewing courts “must not ‘rubber-stamp ... administrative decisions that they deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute.’ ” Id. (quoting NLRB v. Brown, 380 U.S. 278, 291-92, 85 S.Ct. 980, 988, 13 L.Ed.2d 839 (1965)). Because the court has done just that in the present case, I dissent.
The National Treasury Employees Union (NTEU) had tried to negotiate with the Internal Revenue Service (IRS), seeking parking spaces for its members who were being moved to the new IRS headquarters in Houston. The IRS refused to bargain and, after a hearing, the FLRA found that this refusal constituted an unfair labor practice. Nevertheless, the FLRA denied the Union’s request to give any future agreement on parking retroactive effect. In upholding that FLRA denial, this court further frustrates the basic purposes of the labor relations statute governing federal employees, the Civil Service Reform Act of 1978.
A brief review of the facts of this case and the history of the collective bargaining statute for federal employees brings into sharp relief the way this court derogates statutory purpose — and text — in favor of an undue deference to the executive branch of government. Prior to the relocation of the federal employees represented by petitioner, parking had not been a serious concern. Employees at the downtown location of the Houston IRS had adequate public transportation as well as a substantial variety of commercial parking options available to them. Employees assigned to the West-park location had free street parking. When the IRS determined to move the employees to a new location in Houston, it negotiated for parking with its landlord and obtained a total of 650 parking spaces to be reserved for IRS use. Upon learning of the move, the Union immediately raised the question of parking as a collective bargaining issue. The court’s opinion characterizes the IRS response to the Union’s request as “not altogether forthcoming.” Maj. Op. at 966. To parse this euphemism, the record reflects that, initially, the IRS claimed it did not have any of the information requested by the Union (such as costs and escalation clauses). The agency then claimed that it was precluded from paying for any employee parking by federal regulation. Next, the IRS claimed that only its Regional Commissioner had authority to agree to pay for employee parking, and the local managers had not been granted that authority. As to space reservations, the agency insisted that only the landlord could provide such reservations. When all of those dodges fell by the wayside, the IRS insisted that it had no obligation to bargain about parking at all.
*971Barred by statute from applying any economic pressure on the government .employing agency, the Union filed unfair labor practice charges with the FLRA. More than four years later, the FLRA found that the IRS had in fact committed an unfair labor practice (a finding that is not in dispute), but the Authority refused to order that the past transgressions be remedied in any way. The IRS was told that it had violated the law, that it should bargain with the Union about parking, and that it should go forth and sin no more.
If Congress had so limited the relief available to the employees, or had indicated that FLRA could so limit the relief, this case would not be of great moment. The future of western civilization hardly turns on whether federal employees get reserved or subsidized parking spaces. But Congress had in fact recognized and accommodated the disparity in bargaining power between private and public sector employees vis-a-vis their respective employers. When a private employer refuses to bargain about some issue, the employees can not only file an unfair labor practice charge with the National Labor Relations Board (NLRB), but can also exercise a whole panoply of economic pressures, including strike and slowdown. Under such circumstances, the National Labor Relations Act (NLRA) left the shape of the remedy for refusal to bargain to NLRB discretion and to private bargaining. When both bargainers can influence the decision equally, Congress left the choice of remedy flexible. While the NLRB sometimes makes its private sector remedies retroactive (back-pay awards are but one example), the NLRB enjoys the discretion not to do so most of the time.
By contrast, when Congress drafted the Civil Service Reform Act in 1978 for federal employees, it described the remedies in detail — perhaps too much detail for the plain meaning to be deciphered easily. One remedy is etched out very clearly. When the FLRA finds that an employing agency has engaged in an unfair labor practice during the collective bargaining process, Section 7118(a)(7)(B) of the Act provides that- it shall' issue an order “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....” 5 U.S.C. § 7118(a)(7)(B) (1988) (emphasis added). The conjunction between ordering the contract to be renegotiated and making the effect of such renegotiation retroactive ought to be potent. There is no comparable provision in the NLRA. The existence of such an explicit remedy, specifically to be applied to a renegotiation order, ought to carry the day in- this dispute. That it does not is one more nail in the coffin of the fair labor-management bargaining scheme that was heralded by the Congress when it passed the Civil Service Reform Act in 1978.
A. Subsection (B) Requires a Retroactive Benefit Order Whenever Renegotiation is Ordered
During oral argument, the FLRA claimed that § 7118(a)(7)(B) is inapplicable because that provision relates only to the renegotiation of collective bargaining agreements, arguing that no agreement was ever negotiated here that could be subject to renegotiation. This assertion is plainly at odds with the factual record. Contrary to the FLRA’s claim, parking was explicitly raised as an issue in the context of a much larger collective bargaining agreement concerning the office relocation. Negotiations about the parking spaces were part and parcel of the collective bargaining agreement. After the parties reached agreement on all other provisions, but were still unable to obtain information about parking, the parties agreed to execute an agreement on those “other issues” and deal with the question of parking at a later date. Thus, the collective bargaining agreement depended upon the IRS’s promise to keep “the entire issue of parking ... open, including the issue of payment for parking.” Pursuant to this understanding, the parties negotiated over parking in three separate sessions and even reached a preliminary agreement that would remain in effect until a permanent agreement could be reached.
*972It seems clear, therefore, that parking had in fact been negotiated as part of the collective bargaining agreement, and that the Authority’s remedy of requiring bargaining on that issue qualifies as renegotiation. Once renegotiation was ordered, the unambiguous meaning of subsection (B) mandates that such renegotiation apply retroactively. Otherwise, the inclusion of this express retroactivity provision would be altogether superfluous, granting the FLRA a power that it would in any case have enjoyed even without an express statutory provision, as is the case with the NLRB. See American Federation of Government Employees (“AFGE”) v. FLRA, 785 F.2d 333, 337 (D.C.Cir.1986) (per curiam) (“Even when status quo ante relief is denied in case of undue hardship, the NLRB will typically grant monetary relief, such as backpay, in addition to any order to bargain.”); Amalgamated Clothing Workers v. NLRB, 736 F.2d 1559, 1570 (D.C.Cir.1984). At the very least, the inclusion of the retroactivity language evinces congressional intent that the FLRA should exercise this power where necessary to remedy unfair labor practices.
Of course subsection (B) is not the only provision that may be employed to remedy an agency’s refusal to bargain, but neither can the remedial provision set forth above be dissected: once the FLRA requires renegotiation it must give retroactive effect to any subsequent agreement. The court places great emphasis on the catch-all language of § 7118(a)(7)(D), which authorizes the FLRA to provide a remedy that includes any combination of the three different remedies provided in Section 7118 “or such actions as will carry out the purpose of this chapter.” But not a word of explanation is to be found in either the court’s opinion, or the FLRA decision, as to how one carries out the “purpose” of the statute by ignoring the specific remedy provided by Congress when renegotiation is ordered. The court uses analogies to the private sector statute without ever acknowledging, let alone reconciling, the different bargaining problems that federal employees face compared to their private sector counterparts. Although conceding that the Act is not to be read in pari materia with the NLRA, see Maj. Op. at 967-68 & 969, the court fails to appreciate or give effect to the purposeful divergence in remedial schemes embodied in the two statutes.
B. Subsection (D) Does Not Give FLRA Unreviewable Discretion
The majority contends that § 7118(a)(7)(D) grants the FLRA unlimited discretion to alter or modify the specifically enumerated remedies to suit a particular situation. Of course, flexibility is desirable so that the FLRA can shape relief that will best effectuate the purposes of the Act in unusual situations. But such flexibility cannot authorize an abdication of the FLRA’s responsibility to make employees whole. The Authority’s remedial discretion is cabined by the requirement that it mandate “such other action as will carry out the purpose of this chapter.” 5 U.S.C. § 7118(a)(7)(D). Cases involving subsection (D) typically involve the use of remedies in addition to (not in derogation of) those previously enumerated. See, e.g., AFGE v. FLRA, 777 F.2d 751, 754 n. 13 (D.C.Cir.1985) (“This ‘other action’ may include the posting of a notice indicating that an agency has been found to have committed an unfair labor practice and has been ordered to cease committing such practices in the future.”) (citing AFGE v. FLRA, 716 F.2d 47, 51 (D.C.Cir.1983) (per curiam)).
Furthermore, even if the choice of appropriate remedy is entrusted to the FLRA by the terms of the Act, that choice is not thereby entirely immunized from judicial review. The majority exaggerates petitioner’s burden to demonstrate that the FLRA’s action improperly frustrates the policies underlying the Act. We certainly owe deference to an agency’s interpretation of the statute it administers when the statute is silent or ambiguous with respect to a particular issue. See Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 843, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984). But, as explained above, the statute here is not silent about giving renegotiation orders a retroactive effect since subsection (B) *973clearly directs the FLRA to do just that. Moreover, even to the extent that subsection (D) expands the Authority’s remedial discretion, the FLRA must exercise that discretion in such a way as to further the purposes of the statute, a requirement amenable to judicial scrutiny in any case.
The court emphasizes the limited scope of review of the FLRA’s remedial orders, citing Professional Air Traffic Controllers Organization v. FLRA (“PATCO”), 685 F.2d 547 (D.C.Cir.1982). The court in PATCO did state that review of the Authority’s remedial orders should be highly deferential, but nowhere did it suggest that the court relinquish all responsibility for ensuring that the FLRA faithfully execute congressional policy. Indeed, a reviewing court must satisfy itself that “the agency has exercised a reasoned discretion, with reasons that do not deviate from or ignore the ascertainable legislative intent.” Greater Boston Television Corp. v. FCC, 444 F.2d 841, 850 (D.C.Cir.1970) (footnote omitted), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 2233, 29 L.Ed.2d 701 (1971) (quoted in PATCO, 685 F.2d at 585); see also BATF, 464 U.S. at 108, 104 S.Ct. at 449 (rejecting the FLRA’s interpretation of ambiguous language in 5 U.S.C. § 7131(a) as “constituting] an ‘unauthorized assumption by the agency of a major policy decision properly made by Congress’ ” (citation and internal brackets omitted)).
In the PATCO case, the Authority was challenged by the striking union for applying too draconian a remedy when it revoked the union’s exclusive recognition status in response to its illegal strike. Even though the FLRA was clearly and enthusiastically carrying out the congressional policy of remedying unfair labor practices, in sharp contrast to the order at issue here, the court reviewed the factual basis for the Authority’s decision before upholding the order. In fact, the court here concedes that in eases where a federal agency takes unilateral action disturbing the status quo which is later found to constitute an unfair labor practice, the FLRA “would surely bear the burden of explaining why it did not choose to make the employee whole” through a status quo ante order. See Maj. Op. at 969. The majority’s effort to then draw a sharp distinction between a status quo ante order and a retroactive bargaining order is not, however, persuasive.
C. Failure to Require a Retroactive Benefit Order Undermines Congressional Policies
Under the court’s interpretation, a government agency will always have an incentive not to bargain about a new condition, because even if it is eventually found to have breached its duty, the agency will have been spared the burden of making any concessions throughout the entire period of unlawful refusal. This is contrary to the Act’s purpose of deterring labor abuses against federal employees. “In passing the Civil Service Reform Act, Congress unquestionably intended to strengthen the position of federal unions....” BATF, 464 U.S. at 107, 104 S.Ct. at 449. When he first introduced the legislation, Congressman William Clay emphasized that “[t]he existing Federal labor-management relations program is overly biased in favor of management, the scope of bargaining is so limited as to render it virtually meaningless, [and] the procedure for the resolution of impasses and disputes is unwieldly [sic] and overly drawn out.” 123 Cong.Rec. E5566 (Sept. 14, 1977).
An approach to remedies that systematically fails to deter noncompliance, or dilatory compliance, with the statute’s directives is fundamentally at odds with the Authority’s responsibilities. For example, under the holding of this case, the IRS will effectively receive a four and one-half year windfall for its failure to bargain since the employees need not be made whole. Moreover, the employees have no other bargaining leverage with which to recoup the benefit of any concessions they should have obtained over the last four years. Given the prohibition against striking, the NTEU is wholly at the mercy of the IRS. The agency’s failure to bargain produced an obvious benefit for the agency, and the failure to grant a retroactive benefit order may encourage similar conduct by other agencies. See AFGE v. FLRA, 785 F.2d at 338 (recognizing that the Authority’s habitual use of prospective bargaining orders *974provides no incentive for management to comply with statutory obligations).
This risk is especially apparent from the facts of this case. The court brushes off the incentives argument with the observation that “[i]t is not apparent ... that government agencies would be indifferent to ... a determination that they violated the law,” Maj. Op. at 968, ignoring the FLRA’s finding in this case that the IRS was insincere in asserting a “good faith” refusal to bargain in the first place. The agency repeatedly changed its reasons for refusing to negotiate with the union and, according to the FLRA, “continually frustrated” efforts even to obtain information about the parking issue. The whole notion of a law with remedies anticipates that the parties will not always do what they should. Relying on employing agencies to do the right thing in lieu of ordering the very specific remedies called for in the statute superimposes this court’s naivete on a congressional mandate.
The court’s opinion reflects an assumption, not reflected by the words of the statute, that only where the agency unilaterally removes a bargained-for benefit is make-whole relief proper. (Even in such a case, the court seems less than enthusiastic about such relief.) Congress imposed no such limitation on make-whole relief, and up to now this court has never so read the statute. Indeed, the court’s opinion goes out of its way to repudiate our recent decision in AFGE, SSA Council 220 v. FLRA, 840 F.2d 925 (D.C.Cir.1988), a decision that the en banc court in this case had not even voted to reconsider.
D. Conclusion
The court today rubber stamps the Authority’s decision to deny the Union’s request for a retroactive benefit order, thereby effectively condoning the FLRA’s tendency to grant only prospective relief. Under the guise of proper judicial deference to agency expertise, the court allows the FLRA to second-guess a clear congressional directive to both deter noncompliance with the Civil Service Reform Act and assure that affected employees are made whole by making benefit orders retroactive whenever renegotiation is ordered. Such blatant usurpation by an agency is not warranted, nor does the PATCO decision dictate that this court idly stand by. In describing the “unique structure of the federal labor relations statute,” Maj. Op. at 968, the court catalogues some of the special problems that face the government qua employer, problems that certainly do exist. But not a single word is said about the special problems that federal employees, face, problems that were very specifically the concern of the Congress when it passed the statute.
As I indicated at the outset, the determination as to when the Houston employees of the IRS get recognition of their parking needs is hardly destined to shape our future. But. the opinion today proclaims a deference to agency discretion that totally ignores the deference owed to congressional supremacy. The court — and the executive branch — may have a primary concern about the difficulties that government encounters as an employer, but Congress expressed its concern that federal employees also deserve special attention in their bargaining needs. Today, this court gives that congressional concern short shrift. I do not think that Chevron and PATCO can be interpreted to overrule Article I of the Constitution.