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
No. 06-5113
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 11, 2006 Decided May 18, 2007
Appeal from the United States District Court for the District of Columbia (No. 05cv02183)
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
I
1. To put together the pieces of the statutory puzzle in this case, one must first appreciate the difference between
- General Requirements for National Security Personnel System - Subsections (b)(3), (b)(4), and (d)(2).
Taken together, therefore,
- Authorization to Create Labor Relations System - Subsections (m)(1) and (m)(8).
The “notwithstanding” clause in
Furthermore,
- Additional Authorization - Subsection (k)(1).
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
The regulations curtail the scope of
- 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. Seeid. § 9901.903 .) Under the regulations, both issuances and implementing issuances can have prospective effect, but only implementing issuances can abrogate existing collective bargaining agreements. Seeid. §§ 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
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
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.
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 -
The key to solving the statutory puzzle is the fact that
To summarize so far,
The “notwithstanding” clause in
The guarantee of collective bargaining in
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
In sum,
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
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,
Second, the Unions relatedly argue that
We agree with the Unions that
With
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
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.”
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
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).
First,
Second,
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
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.
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
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.”
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.,
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.
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
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
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
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So ordered.
I.
Chapter 99 permits the Secretary to create a new “human resources management system.”
Proceeding under Chevron‘s first step, the court concludes (1) the phrase “bargain collectively as provided for in this
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.”
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. 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, 857 (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
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.
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
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.
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.”
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
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,
(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.
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.
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,
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
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
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;
Second, under the regulation, “implementing issuances“—directives that “carry out a policy or procedure implementing”
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.”
The new management rights provision also bars negotiation over the procedures through which management “determine[s] . . . the technology, 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
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.”
Finally, the regulation prohibits all employees from bargaining collectively regarding their pay. See
First, the Secretary cites his Chapter 99 authority to create a new “pay for performance evaluation system.”
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.