FEDERAL LABOR RELATIONS AUTHORITY, PETITIONER V. ABERDEEN PROVING GROUND, DEPARTMENT OF THE ARMY No. 86-1715 In the Supreme Court of the United States October Term, 1987 On Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit Brief for the Respondent TABLE OF CONTENTS Question Presented Opinions below Jurisdiction Statutory provisions involved Statement Summary of argument Argument: Section 7117(b) provides the only procedure for challenging the compelling need for a regulation issued by an agency or primary national subdivision A. The language of the statute plainly indicates that Section 7117(b) is the only procedure for challenging compelling need B. The decision to make Section 7117(b) the only procedure for challenging compelling need serves important purposes C. The history of Title VII confirms that Section 7117(b) provides the exclusive procedure for challenging compelling need D. Petitioner's reliance on "considerations of public policy" is misplaced Conclusion OPINIONS BELOW The order of the court of appeals (Pet. App. 16a) summarily reversing the Federal Labor Relations Authority's (the Authority), decision is unreported, as is the court of appeals' order (Pet. App. 17a) denying the Authority's motion for an initial hearing en banc. The court's earlier decision in United States Army Engineer Center, Fort Belvoir v. FLRA (Pet. App. 52a-69a), upon which the court based its summary reversal in this case, is reported at 762 F.2d 409. The Authority's decision and order (Pet. App. 18a-51a) is reported at 21 F.L.R.A. No. 100. JURISDICTION The judgment of the court of appeals was entered on January 28, 1987. The petition for a writ of certiorari was filed on April 24, 1987, and was granted on October 5, 1987. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY PROVISIONS INVOLVED 5 U.S.C. 7117 provides in pertinent part: * * * * * (a)(2) The duty to bargain in good faith shall, to the extent not inconsistent with Federal law or any Government-wide rule or regulation, extend to matters which are the subject of any agency rule or regulation referred to in paragraph (3) of this subsection only if the Authority has determined under subsection (b) of this section that no compelling need (as determined under regulations prescribed by the Authority) exists for the rule or regulation. (3) Paragraph (2) of the subsection applies to any rule or regulation issued by any agency or issued by any primary national subdivision of such agency, unless an exclusive representative represents an appropriate unit including not less than a majority of the employees in the issuing agency or primary national subdivision, as the case may be, to whom the rule or regulation is applicable. (b)(1) In any case of collective bargaining in which an exclusive representative alleges that no compelling need exists for any rule or regulation referred to in subsection (a)(3) of this section which is then in effect and which governs any matter at issue in such collective bargaining, the Authority shall determine under paragraph (2) of this subsection, in accordance with regulations prescribed by the Authority, whether such a compelling need exists. (2) For the purpose of this section, a compelling need shall be determined not to exist for any rule or regulation only if -- (A) the agency, or primary national subdivision, as the case may be, which issued the rule or regulation informs the Authority in writing that a compelling need for the rule or regulation does not exist; or (B) the Authority determines that a compelling need for a rule or regulation does not exist. (3) A hearing may be held, in the discretion of the Authority, before a determination is made under this subsection. If a hearing is held, it shall be expedited to the extent practicable and shall not include the General Counsel as a party. (4) The agency, or primary national subdivision, as the case may be, which issued the rule or regulation shall be a necessary party at any hearing under this subsection. QUESTION PRESENTED The Federal Service Labor-Management Relations Statute, 5 U.S.C. (& Supp. IV) 7101 et seq., provides that a federal agency's duty to bargain with its employees shall extend to a matter that is the subject of an agency regulation only if the Federal Labor Relations Authority (the Authority) has determined, under 5 U.S.C. 7117(b), that there is no "compelling need" for the regulation at issue. The question presented in this case is whether the procedure set forth in 5 U.S.C. 7117(b) is the only means by which the compelling need for an agency regulation may be challenged, or whether the Authority also has the power to resolve the compelling need issue in an unfair labor practice proceeding under 5 U.S.C. 7118. STATEMENT A. The Federal Service Labor-Management Relations Statute 1. On October 13, 1978, President Carter signed into law the Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111 (the Act). Title VII of the Act (5 U.S.C. (& Supp. IV) 7101 et seq.), entitled the Federal Service Labor-Management Relations Statute, "establishes a statutory basis for labor-management relations in the Federal Service." H.R. Rep. 95-1403, 95th Cong., 2d Sess. 38 (1978). Title VII "thoroughly restructured federal labor relations" (National Federation of Federal Employees, Local 1669 v. FLRA, 745 F.2d 705, 706 (D.C. Cir. 1984)), replacing the federal labor relations program that had been created in 1962 by Exec. Order No. 10,988, 3 C.F.R. 521 (1959-1963 comp.). /1/ Title VII protects the right of federal employees "to form, join, or assist any labor organization, or to refrain from any such activity" (5 U.S.C. 7102), and requires federal agencies to bargain in good faith with the exclusive representatives of units of employees about the terms and conditions of employment. See 5 U.S.C. 7102, 7114, 7116(a)(5) and (b)(5); Bureau of Alcohol, Tobacco & Firearms v. FLRA, 464 U.S. 89, 92 (1983) (BATF). The statute also outlines the matters that are "negotiable" -- i.e., subject to the bargaining obligation. See 5 U.S.C. 7103(a)(12) and (14), 7117. An agency's refusal or failure to bargain in good faith about a negotiable proposal may constitute an unfair labor practice (5 U.S.C. 7116(a)(5)); whether it does so is determined in an unfair labor practice (ULP) proceeding under 5 U.S.C. 7118. Title VII also establishes the Federal Labor Relations Authority (FLRA or Authority), a three-member independent body within the Executive Branch with responsibility for supervising the federal collective bargaining process under Title VII. /2/ The Authority adjudicates negotiability disputes, resolves bargaining unit issues and arbitration exceptions, conducts union elections, and engages in rulemaking. See 5 U.S.C. 7105(a)(2)(A)-(I). The FLRA may also issue orders against unfair labor practices (5 U.S.C. 7118) and may seek enforcement of those orders in appropriate United States courts of appeals (5 U.S.C. 7123(b)). Persons, including federal agencies, who are aggrieved by any final FLRA order may likewise seek judicial review in the courts of appeals (5 U.S.C. 7123(a)). 2. a. In enacting Title VII, Congress struck a delicate and deliberate balance between the rights of employees to bargain collectively and the "special requirements and needs of the Government" (5 U.S.C. 7101(b)). As President Carter explained when he transmitted the proposed legislation to Congress, "(t)he goal of th(e) legislation (is) to make Executive Branch labor relations more comparable to those of private business, while recognizing the special requirements of the Federal government and the paramount public interest in the effective conduct of the public's business." H.R. Doc. 95-299, 95th Cong., 2d Sess. 4 (1978), reprinted in Staff of the Sub-comm. on Postal Personnel and Modernization of the House Comm. on Post Office and Civil Service, 96th Cong., 1st Sess., Comm. Print No. 9-67, Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978, at 626 (Comm. Print 1979) (hereinafter Leg. Hist.). /3/ Congress specified that Title VII "must be construed in light of the paramount right of the public to as effective and efficient a Government as possible." H.R. Conf. Rep. 95-1717, 95th Cong., 2d Sess. 154 (1978). As this Court explained in the BATF case, Title VII "signficantly strengthened the position of public employee unions," while at the same time "carefully preserving the ability of federal managers to maintain 'an effective and efficient Government'" (BATF, 464 U.S. at 92). In particular, "the scope of collective bargaining is far narrower in the federal sector than in the private sector" (FLRA v. OPM, 778 F.2d 844, 845 (D.C. Cir. 1985) (footnote omitted)). In contrast to the National Labor Relations Act, for example, Section 7106(a) of Title VII expressly identifies certain "management rights" that are not negotiable. Under that provision, an agency may, free from the prospect of bargaining, "determine (its) mission, budget, organization, number of employees, and internal security practices" (5 U.S.C. 7106(a)(1)); "hire, assign, direct, layoff, and retain employees" or "suspend, remove, reduce in grade or pay, or take other disciplinary action against such employees" (5 U.S.C. 7106(a)(2)(A)); "assign work," "make determinations with respect to contracting out," and "determine the personnel by which agency operations shall be conducted" (5 U.S.C. 7106(a)(2)(B)); select persons to fill positions (5 U.S.C. 7106(a)(2)(C)); and "take whatever actions may be necessary to carry out the agency mission during emergencies" (5 U.S.C. 7106(a)(2)(D)). And "(e)ven though the parties may execute a contract provision encompassing section 7106(a) matters, such agreement is invalid and may not be enforced." H. Robinson, Negotiability in the Federal Sector 18 (1981). /4/ b. One of the specific limitations on the duty of a government employer to bargain is set forth in Section 7117(a)(2), which provides that an agency's duty to bargain extends to matters covered by an agency-wide rule or regulation (or by a rule or regulation issued by a "primary national subdivision" of an agency) (5 U.S.C. 7117(a)(3)) "only if the Authority has determined under subsection (b) (5 U.S.C. 7117(b)) that no compelling need * * * exists for the rule or regulation" (5 U.S.C. 7117(a)(2)). Section 7117 thus strikes a balance: while it authorizes negotiations on matters covered by agency regulations, it also recognizes "that within every agency there exists a governmental mission which may not be compromised or negotiated away, in whole or in part, at the bargaining table." AFGE v. FLRA, 730 F.2d 1534, 1539 (D.C. Cir. 1984). Put another way, Section 7117 establishes a "workable accommodation between the objectives of promoting collective bargaining and preserving management authority in certain important areas." Association of Civilian Technicians, Montana Air Chapter v. FLRA, 756 F.2d 172, 178 (D.C. Cir. 1985). c. Title VII provides procedures for determining whether a proposal is "negotiable" and, in cases where a labor representative alleges that an agency-wide regulation does not bar negotiations because there is no "compelling need" for the regulation, for determining compelling need. An ordinary negotiability question, such as whether a proposal would traverse "management rights," may be resolved in a ULP proceeding after management has refused to bargain; such a question may also be resolved by what the parties agree is an optional alternative procedure, a "negotiability appeal" by the union, to the FLRA, under 5 U.S.C. 7117(c). A different subsection, 5 U.S.C. 7117(b), provides a separate, and we believe exclusive, procedure for deciding whether there is a compelling need for an agency regulation. Section 7117(b)(1) provides that "(i)n any case of collective bargaining in which an exclusive representative alleges that no compelling need exists for any rule or regulation * * * which is then in effect and which governs any matter at issue in such collective bargaining, the Authority shall determine * * * whether such a compelling need exists". In making this determination, the Authority may hold a hearing (5 U.S.C. 7117(b)(3)). Unlike a ULP proceeding (compare 5 U.S.C. 7118), a Section 7117 hearing "shall be expedited to the extent practicable and shall not include the "Authority's) General Counsel as a party" (5 U.S.C. 7117(b)(3)), but shall include the agency or primary national subdivision as a necessary party (5 U.S.C. 7117(b)(4)). And whereas a ULP proceeding may result in the retroactive imposition of sanctions against the agency (see 5 U.S.C. 7118(a)(7)), a finding of no compelling need under Section 7117 has only the prospective effect of requiring the agency, or the local employer, to negotiate over the subject matter purportedly covered by the agency regulation. See FLRA v. OPM, 778 F.2d 844, 846 & n.11 (D.C. Cir. 1985). B. The Present Controversy 1. The present case arose on September 14, 1981, when, in an effort to conserve energy, respondent decided to close operations at the Aberdeen Proving Ground (APG or Aberdeen) for the three days after Thanksgiving, November 27-29, 1981. On September 15, David R. Weppner, respondent's labor relations specialist, met with representatives of the various unions representing APG employees and notified them that, as a result of the decision to curtail operations, all APG employees would be obliged to take annual leave on Friday, November 27. Pet. App. 34a-35a. On October 6, respondent met with union representatives to discuss how the closure plans would be implemented. Colonel Robert P. Jones, who chaired the meeting, reiterated that employees would have to take annual leave on November 27, and that if an employee had not accrued annual leave time he could be advanced leave time, take compensatory time, take leave without pay, or would be permitted to work. Pet. App. 36a. Following the meeting, respondent invited the unions "to negotiate concerning the impact and implementation of th(e) decision" (id. at 37a (citation omitted)). Negotiations took place on October 19, 1981. Union representatives proposed that instead of having to take annual leave employees be granted administrative leave (Pet. App. 38a). Weppner, representing respondent, rejected this proposal, explaining that "'the rules and regulations * * * do not permit him to do this and that it verges on nonnegotiability in his opinion'" (ibid. (citation omitted)). Respondent relied in particular on Army and Department of Defense regulations that generally prohibit granting administrative leave when at least 24 hours' notice of an anticipated closure can be given. /5/ 2. The International Association of Machinists and Aerospace Workers (the union) thereafter filed a ULP charge, alleging among other things that respondent had violated 5 U.S.C. 7116(a)(1) and (5) by refusing to bargain over the union's proposal that administrative leave be granted when APG was closed on November 27. On June 15, 1982, the administrative law judge ruled in respondent's favor and recommended that the Authority dismiss the union's complaint (Pet. App. 33a-51a). The ALJ found that "(r)espondent's reliance on the DOD and DA Regulations as the basis for its rejection of (the union's) demand for administrative leave was in good faith" (id. at 43a). Noting that the DOD regulations were "'agency' regulations within the meaning of (5 U.S.C. 7117(a)(2) and (3))" and that "the DA Regulations were issued by a 'primary national subdivision of said agency' within the meaning of (5 U.S.C. 7117(a)(3))," the ALJ explained that under Section 7117(a)(2) the agency therefore had a duty to bargain over the administrative leave proposal "'only if the Authority has determined under (Section 7117(b)) that no compelling need * * * exists for the rule or regulation'" (Pet. App. 44a). Because "(t)he Authority ha(d) made no such determination (with respect to) * * * either the DOD or the DA Regulation" (ibid.), the ALJ concluded that "(r)espondent was under no duty to bargain as to the grant of administrative leave for November 27, 1981" (id. at 45a). 3. The Authority reversed (Pet. App. 18a-32a). It first rejected respondent's contention (id. at 21a) that "it had no duty to establish a compelling need for its regulations without the issue having been raised by the Union under the Authority's negotiability procedures." The Authority acknowledged (id. at 22a-23a) that "when an agency refuses to bargain over a union proposal during ongoing collective bargaining negotiations because the proposal is alleged to be inconsistent with an existing agency-wide regulation for which a compelling need exists, section 7117 of the Statute requires that the issue be resolved through the procedures in section 7117 of the Statute and Part 2424 of the Authority's Rules and Regulations." But relying on its prior decision in Defense Logistics Agency, 12 F.L.R.A. 412 (1983), aff'd sub nom. Defense Logistics Agency v. FLRA, 754 F.2d 1003 (D.C. Cir. 1985), the Authority held (Pet. App. 23a) that "(a) different situation is presented" when an agency is alleged to have made "unilateral changes in conditions of employment" and "issues of negotiability -- including, as in the instant case, assertions of compelling need for agency regulations -- are raised as affirmative defenses" (ibid.). In such cases, the Authority stated (ibid.), the question of whether there exists a compelling need for an agency-wide regulation may be resolved in two different ways: "(T)he Authority has promulgated procedures * * * which recognize a union's right either: (1) to seek resolution of the entire dispute, including the negotiability issues, in the unfair labor practice forum; or (2) to seek initial and separate resolution of the negotiability issues in the negotiability appeal forum" (ibid.). In reaching this conclusion, the Authority reasoned that in the private sector issues of negotiability may be resolved in unfair labor practice proceedings and it discerned nothing in the Act or in its legislative history to "suggest( ) that Congress intended to make an exception in the federal sector to this principle" (Pet. App. 23a-24a). The Authority said that the negotiability appeals procedures contained in Section 7117(b) do not "preclude the Authority from resolving any necessary negotiability issues, including those related to the compelling need for an agency regulation, in a unilateral change unfair labor practice case" (Pet. App. at 24a). And it found confirmation for that view in the "pre-Statute labor-management relations program, Executive Order 11491, (which) authorized precisely what the Authority's procedures * * * were promulgated to permit: unified processing of any compelling need negotiability issue in the unfair labor practice proceeding in which it arises" (id. at 25a (footnote omitted)). The Authority asserted that its approach to the determination of compelling need issues "effectuates Congress' goal to facilitate and promote the collective bargaining process by providing for the resolution of all relevant issues in one proceeding, thereby obviating the delay inherent in two separate and consecutive proceedings" (ibid.). Having decided that the compelling need for the regulations in this case could be resolved in the ULP proceeding, the Authority next found that respondent had "failed to sustain its burden of establishing a compelling need for the DOD and DA regulations in accordance with * * * the Authority's Rules and Regulations" (Pet. App. 27a). It held that respondent had not shown that the regulations in question promoted the "goal of conserving energy" in that "(t)he record is barren of evidence which would demonstrate how the granting of administrative leave to unit employees, rather than annual leave, as the Union's proposal at issue here would require, in any way affects the Respondent's stated objective of conserving energy" (ibid.). The Authority accordingly held that respondent had violated Section 7116(a)(1) and (5) when it refused to negotiate concerning the administrative leave proposal (Pet. App. 28a). It ordered respondent to cease and desist from its refusal to negotiate, and it granted certain additional affirmative relief (id. at 28a-30a). 4. Relying on its earlier decision in United States v. Army Engineer Center, Fort Belvoir v. FLRA, 762 F.2d 409 (Pet. App. 52a-69a), the court of appeals, in an unpublished order, summarily reversed (id. at 16a). In Fort Belvoir, a union instituted a ULP proceeding under Section 7118 when Fort Belvoir, a component of the Department of the Army, refused to negotiate concerning an Army regulation that established a new performance appraisal system. As in the present case, the Authority decided in the context of the ULP proceeding that there was no compelling need for the Army regulation. The court of appeals reversed, holding (Pet. App. 57a-58a (emphasis in the original)) that "(t)he Federal Labor Management Relations Act states in unambiguous terms that, where an agency regulation is asserted as a bar to negotiations between a governmental employer and a union, the FLRA must determine that no compelling need for the regulation exists before any duty to bargain arises on the part of the employer." The court observed further that "(i)t is illogical, in light of this language, to maintain that a union could charge an agency with 'having engaged in or engaging in an unfair labor practice,' 5 U.S.C. Section 7118(a), because the employer has refused to bargain over subject matter as to which no duty to bargain has been determined to exist" (id. at 61a (emphasis in the original)). The court examined the legislative history of the Act and concluded that Congress had deliberately chosen "to provide separate avenues of negotiability appeals and unfair labor practice proceedings to resolve different kinds of questions" (id. at 67a (emphasis in the original)). Noting in particular the procedural differences between a negotiability appeal under Section 7117(b) and a ULP proceeding, the court held that Congress intended under Section 7117 "to give a governmental agency the 'flexibility to issue and revise regulations which the agency deems are essential to accomplish its executive function,' * * * while protecting the agency from the risk of thereby incurring the sanctions of an unfair labor practice proceeding" (Pet. App. 69a). The court accordingly concluded (ibid.) that "Congress meant the Section 7117(b) negotiability appeal to be the sole means of determining a compelling need question under the statute." SUMMARY OF ARGUMENT A government employer has a duty to bargain in good faith, but only over "negotiable" issues. The question whether an issue is negotiable may ordinarily be answered either in an unfair labor practice proceeding brought by the union after the employer has refused to bargain, or (at the union's option) in a "negotiability appeal" taken by the union under 5 U.S.C. 7117(c) after the employer has asserted that an issue is nonnegoitable. But Congress designed a different procedure to be followed when a governmental employer asserts that a bargaining proposal is nonnegotiable because it is governed by an agency-wide regulation, and the union contends that there is no compelling need for the regulation. In that event, 5 U.S.C. 7117(a) and (b) provide a separate procedure for determining the compelling need for the regulation, and thus whether the proposal is negotiable. The court of appeals ruled, we believe clearly correctly, that this separate procedure is exclusive, and that the allegation of "no compelling need" may not be resolved in an unfair labor practice proceeding. A. The plain language of the statute is dispositive. Section 7117(a)(2) states that "(t)he duty to bargain in good faith shall * * * extend to matters which are the subject of any agency rule or regulation * * * only if the Authority has determined under subsection (b) of this section that no compelling need * * * exists for the rule or regulation" (emphasis added). Unless and until the Authority "has determined" compelling need, a government employer, such as Aberdeen, has no duty to bargain over matters covered by the regulations of the agency (such as DOD) or primary national subdivision (such as the DA) of which it is a part, and thus cannot have committed a ULP. Section 7117(a)(2) provides that compelling need shall be determined "under subsection (b)"; it does not suggest that the ULP process would do just as well. The language of Section 7117(b), in turn, confirms that the procedures in that section are exclusive: Section 7117(b)(1) states that "in any case of collective bargaining" in which the compelling need for agency regulations is put in issue, the Authority "shall determine" compelling need "under paragraph (2)" of the section. This language contrasts sharply with the language of Section 7117(c), which applies to all negotiability appeals "except in a case to which subsection (b) * * * applies." Section 7117(c) expressly gives the union an optional alternative to proceeding by way of the ULP process; it provides that "the exclusive representative may appeal the allegation (of nonnegotiability) to the Authority." B. There are two evident reasons for requiring that compelling need issues be determined in advance of and outside the ULP forum. Unlike an ordinary negotiability dispute between a particular government employer and a union, a compelling need inquiry calls into question the importance and legitimacy of the agency's regulations; the present case, for example, involves not merely a dispute between the union and Aberdeen, which would ordinarily defend a ULP charge, but a challenge to regulations that the Department of Defense and the Department of the Army consider to be within their prerogatives. Congress therefore provided in Section 7117(b) a special procedure in which the agency would have the right to explain and defend its own regulations, in an expedited proceeding before the FLRA itself. Second, Congress evidently did not want to place agencies in the position of adopting regulations -- at least any regulation that may change a condition of employment (a term that is broadly defined under Title VII (see 5 U.S.C. 7103(a)(14)), at the peril of ULP sanctions. It wanted instead to provide a proceeding in which the only adverse consequence of a determination of "no compelling need" is that there would then be a duty to bargain. C. The history of the statute confirms that Section 7117(b) is the only means for resolving compelling need issues. Indeed, in connection with nearly identical "compelling need" language in a precursor to Section 7117, Congress considered the very question presented in this case and rejected the interpretation urged by the Authority. Petitioner's contrary view, predicated on the supposed pre-Act practice under the Executive Orders, is mistaken. Although Executive Order No. 11,838 authorized the Assistant Secretary of Labor to resolve negotiability issues in a ULP proceeding, there is no evidence that the Assistant Secretary was authorized to decide compelling need issues. To the contrary, Executive Order No. 11,838, and the Report and Recommendations on which it was based, explicitly established a separate and different procedure for resolving compelling need questions. D. Largely ignoring the text, and finding the formal legislative history of Title VII silent on the question presented (see Br. 13, 30, 33), petitioner relies on certain "considerations of public policy" to support its construction of the statute (Br. 42). It insists that "it is in the interest of the efficient and effective administration of the Statute that all issues which arise in an unfair labor practice dispute be resolved in that unfair labor practice proceeding" (Br. 42-43). And it asserts that there are "no drawbacks" to its approach. But it is not clear that a ULP proceeding is an efficient way to resolve "compelling need" issues, much less that such an approach would promote the efficiency of the Government as a whole. And in any event, these untethered policy claims cannot justify an interpretation so plainly at odds with the text and evident purpose of the statute. "Although Congress certainly could have adopted the model of collective bargaining advanced by (petitioner), we find no indications in the Act or its legislative history that it intended to do so." BATF v. FLRA, 464 U.S. at 103. ARGUMENT SECTION 7117(b) PROVIDES THE ONLY PROCEDURE FOR CHALLENGING THE COMPELLING NEED FOR A REGULATION ISSUED BY AN AGNECY OR PRIMARY NATIONAL SUBDIVISION Ordinary negotiability disputes under Title VII may be litigated either in an unfair labor practice proceeding or in a "negotiability appeal" under Section 7117(c). But Congress recognized that where a matter is alleged to be nonnegotiable because it is governed by an agency regulation, and that regulation is alleged to lack a compelling need, there are important reasons to resolve the compelling need issue in a separate, expedited, and exclusive procedure before the FLRA, to which the agency that issued the regulation is invited and the Authority's General Counsel is not. Congress articulated its intentions in the text of Title VII, and it expressed its interpretation of that text in the legislative history. The competing policy considerations on which petitioner relies are mistaken in fact, and in any event cannot override the plain meaning of the statutory provisions. A. The Language of the Statute Plainly Indicates That Section 7117(b) is the Only Procedure for Challenging Compelling Need "(W)e begin with the relevant provisions of (Title VII), which is where an unsophisticated lawyer or layman would probably think we should begin." Carter v. Kentucky, 450 U.S. 288, 308-309 (1981) (Rehnquist, J., dissenting). As this Court has explained many times, "the starting point for interpreting a statute is the language of the statute itself. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive." Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980). Accord INS v. Cardoza-Fonseca, No. 85-782 (Mar. 9, 1987), slip op. 10 n.12; Aaron v. SEC, 446 U.S. 680, 695 (1980); Greyhound Corp. v. Mt. Hood Stages, Inc., 437 U.S. 322, 330 (1978). Here, the language and structure of Title VII leave no doubt that Congress intended the negotiability appeal procedures in Section 7117(b) to be the exclusive means for challenging the compelling need for an agency-wide or primary-national-subdivision-wide regulation. /6/ 1. Section 7117(a)(2) provides that "(t)he duty to bargain in good faith shall * * * extend to matters which are the subject of any agency rule or regulation (issued by an agency or primary national subdivision) only if the Authority has determined under subsection (b) of this section that no compelling need * * * exists for the rule or regulation" (emphasis added). This language is altogether inconsistent with permitting a union -- as the Authority did here -- to demand to bargain over a matter squarely covered by agency regulations and defend that demand by contending for the first time in the ensuing unfair labor practice proceeding that there is no "compelling need" for the regulation. First, the language makes it clear that the agency simply has no duty to bargain unless and until the Authority "has determined" that there is no compelling need. As the court of appeals observed in Fort Belvoir, "(i)t is illogical, in light of this language, to maintain that a union could charge an agency with 'having engaged in or engaging in an unfair labor practice,' 5 U.S.C. 7118(a), because the employer has refused to bargain over subject matter as to which no duty to bargain has been determined to exist" (Pet. App. 61a (emphasis in the original)). Second, the language of Section 7117(a)(2) makes it clear that compelling need may "only" be determined "under subsection (b)" -- not in a ULP forum. The role of the Authority's General Counsel in unfair labor practice proceedings appears to confirm this reading of Section 7117(a)(2). A ULP proceeding under Section 7117 is commenced when a charge is filed with the General Counsel of the Authority. The General Counsel must then "investigate the charge" and "may issue and cause to be served upon the agency or labor organization a complaint." If the General Counsel concludes that the "complaint fails to state an unfair labor practice," he "shall provide the person making the charge a written statement of the reasons for not issuing a complaint." 5 U.S.C. 7118(a)(1); 5 C.F.R. 2423.10(a). Where contravention of an agency-wide regulation is involved, the General Counsel cannot, we suggest, conclude that a refusal-to-bargain charge states an unfair labor practice, and file a complaint, unless the Authority "has determined under subsection (b)" that there is no compelling need for the regulation. Were he to do so without a prior Authority determination, the premise for the complaint would be false, and the General Counsel, who is expressly excluded from participating in compelling need determinations under Section 7117(b), would instead be playing the leading role in seeking a determination of no compelling need. See generally Turgeon v. FLRA, 677 F.2d 937 (D.C. Cir. 1982). 2. Section 7117(b) sets forth the basic framework for Authority determinations of compelling need, and its language strongly reconfirms that these procedures are exclusive. Section 7117(b)(1) states: In any case of collective bargaining in which an exclusive representative alleges that no compelling need exists for any rule or regulation (issued by any agency or by a primary national subdivision of such agency) which is then in effect and which governs any matter at issue in such collective bargaining, the Authority shall determine under paragraph (2) of this subsection, in accordance with regulations prescribed by the Authority whether such compelling need exists. The provision applies by its terms to "any case of collective bargaining" in which there is a claim by an exclusive representative that no compelling need exists for any agency regulation; it contains no exceptions. The language ("shall determine") is "mandatory and unequivocal." Rodriquez v. Compass Shipping Co., 451 U.S. 596, 602 (1981). Using "the imperative voice" (Califano v. Yamasaki, 442 U.S. 682, 693 (1979) (footnote omitted)), Section 7117(b)(1) directs the Authority to assess compelling need "under paragraph (2)" of Section 7117(b); there is no suggestion that the question can await, or be decided in, a ULP proceeding. Section 7117(b)(3) and (4), which set out the procedures that the Authority is to follow in assessing compelling need, establish a procedural framework quite different from a ULP proceeding. The FLRA is authorized to convene a "compelling need" hearing, which "shall be expedited to the extent practicable and shall not include the General Counsel as a party" (5 U.S.C. 7117(b)(3)). Moreover, "(t)he agency, or primary national subdivision, as the case may be, which issued the rule or regulation shall be a necessary party to any hearing" (5 U.S.C. 7117(b)(4)). As we argue further below (see pages 28-29, infra), it is inconsistent with these requirements to infer the existence of a separate ULP procedure, available at the option of the employee bargaining representative, in which none of these requirements applies. 3. Finally, the contrast between the mandatory language of Section 7117(b), which deals with questions of compelling need, and the language of Section 7117(c), which deals with ordinary negotiability issues, further demonstrates that the Section 7117(b) procedure is exclusive. Section 7117(c) creates an expedited appeal process to resolve negotiability issues "(e)xcept in any case to which subsection (b) of this section (governing compelling need) applies" (emphasis added). Section 7117(c)(1) states that "if an agency involved in collective bargaining with an exclusive representative alleges that the duty to bargain in good faith does not extend to any matter, the exclusive representative may appeal the allegation to the Authority in accordance with the provisions of this subsection" (emphasis added). This section says "may appeal" -- a "permissive, not mandatory" term (Terre Haute & Indianapolis R.R. v. Indiana, 194 U.S. 579, 588 (1904)) -- because Congress sought only to create an optional alternative to the ordinary procedure of testing management's refusal to bargain by filing an unfair labor practice charge under Section 7118. See AFGE v. FLRA, 778 F.2d 850, 853 & n.4 (D.C. Cir. 1985); National Fed'n of Fed. Employees, Local 1167 v. FLRA, 681 F.2d 886, 890 & n.6 (D.C. Cir. 1982). By contrast, the language of Section 7117(a)(2) and (b)(1) -- "only if the Authority has determined under subsection (b)"; the Authority "shall determine" -- is not permissive. Cf. Escoe v. Zerbst, 295 U.S. 490, 493-494 (1935). As the court of appeals explained (Pet. App. 61a) in the Fort Belvoir case, "'(o)nly' is a highly singular word. It does not suggest alternatives or choice." And the difference between "the Authority shall determine" in Section 7117(b)(2) and "(the union) may appeal" in Section 7117(c) could not be plainer: "In the first the word 'shall' and in the latter provision the word 'may' is used, indicating command in the one and permission in the other." United States v. Thoman, 156 U.S. 353, 360 (1895). See also Farmers & Merchants Bank v. Federal Reserve Bank, 262 U.S. 649, 662-663 (1923); Thompson v. Roe, 63 U.S. (22 How.) 422, 434 (1860). In using this statutory structure, Congress "demonstrated that it knew how to provide (for alternative means of resolving negotiability disputes) when it wished to do so elsewhere in the very 'legislation cited.'" Lehman v. Nakshian, 453 U.S. 156, 162 (1981) (quoting Galloway v. United States, 319 U.S. 372, 389 (1943)). "Under traditional principles of statutory construction," the difference between the sections must therefore be seen as intentional. /7/ Fedorenko v. United States, 449 U.S. 490, 512 (1981). See Lawrence County v. Lead-Deadwood School District No. 40-1, 469 U.S. 256, 267 (1985); United States v. Erika, Inc., 456 U.S. 201, 208 (1982). The court of appeals was thus manifestly correct when it concluded in Fort Belvoir (Pet. App. 67a (emphasis in the original)) that Congress deliberately chose "to provide separate avenues of negotiability appeals and unfair labor practice proceedings to resolve different kinds of questions." /8/ B. The Decision to Make Section 7117(b) the Only Procedure for Challenging Compelling Need Serves Important Purposes Congress had two obvious reasons for requiring that compelling need issues be determined outside the ULP process. First, a compelling need inquiry is not merely a dispute between the government employer and the union that is resolved through the machinery of the FLRA; it is a challenge to the importance of regulations that otherwise have the force of law. Second, agencies should not be placed in the position of adopting regulations at their peril, subject to ULP sanctions as a result of a straightforward application of a regulation during the bargaining process. 1. Other negotiability issues -- which simply require the Authority (or its delegated representative) to "'measure( )' specific and delimited bargaining proposals 'against applicable law, rules or regulations in order to determine whether a given proposal is within the duty to bargain'" (FLRA v. OPM, 778 F.2d at 847 (citations omitted)) -- are merely disputes between a particular government employer (such as Aberdeen) and the representative of its employees. But a challenge to the "compelling need" for a regulation promulgated by an agency (such as DOD) or primary national subdivision (such as DA) is a challenge of a different order: it ought to be resolved in a proceeding (1) that focuses on the need for the regulation (rather than the particular bargaining dispute); (2) that is conducted before the Authority itself; and (3) in which the agency has an opportunity to participate and defend its regulations. /9/ The Authority's "criteria for determining compelling need" (5 C.F.R. 2424.11) show how important it is that the agency itself participate and defend its regulations in relation to its overall mission. Under petitioner's "illustrative criteria," an agency bears the "stringent" (Br. 26) burden to "demonstrate", among other things, that its "rule or regulation is essential, as distinguished from helpful or desirable, to the accomplishment of the mission * * * of the agency" (5 C.F.R. 2424.11(a)), or that "the rule or regulation is necessary to insure the maintenance of basic merit principles" (5 C.F.R. 2424.11(b)). /10/ See AFGE v. FLRA, 730 F.2d at 1539. In its decisions, the Authority has consistently rejected compelling need claims where agency regulations were merely "helpful to the accomplishment of the Agency's mission or the execution of its functions" but not "essential to those objectives." National Fed'n of Fed. Employees, Local 1445 & Alabama Air Nat'l Guard, 16 F.L.R.A. 1094, 1102 (1984). As the Authority has put it, "essentiality is the measure" of compelling need (NTEU & FDIC Corp., 14 F.L.R.A. 179, 180 (1984) (emphasis in original)). And under that rigorous standard, the Authority has held that even if a "deviation" from a regulation would "pose administrative difficulty, (that would) not in itself demonstrate that the regulation meets the compelling need criteria" (id. at 181). Accord AFGE, Local 2670 & Army & Air Force Exchange Service, 10 F.L.R.A. 71, 75 (1982). /11/ It is hardly surprising that Congress decided that the ULP process was not an appropriate means to determine compelling need: a ULP proceeding is illsuited to careful focus on the reasons and justifications for an agency's regulations. First, the participants are wrong: a ULP proceeding must be initiated and prosecuted by the General Counsel, see Turgeon v. FLRA, 677 F.2d 937, 939-940 (D.C. Cir. 1982); S. Rep. 95-969, 95th Cong., 2d Sess. 102 (1978), who is expressly denied any role in a Section 7117(b) proceeding; /12/ along the way, the Authority or its delegated representative may permit "any person * * * to intervene in the hearing and to present testimony" under informal rules of evidence that are not set by statute or common law (5 U.S.C. 7118(a)(6)); while the agency that issued the regulation has the right to file an answer in and appear at the ULP proceeding (5 U.S.C. 7118(a)(3)), it is not a necessary party, and the employer at the local level is typically the litigating defendant; and under the ULP provisions, the hearing is conducted by the Authority or "any individual employed by the Authority for such purpose" (5 U.S.C. 7118). Second, in contrast to a Section 7117(b) hearing, which focuses exclusively on the issue of compelling need and which "shall be expedited to the extent practicable" (Section 7117(b)(3)), a ULP proceeding must resolve other issues and decide whether "the preponderance of the evidence received demonstrates that the agency or labor organization named in the complaint has engaged in or is engaging in an unfair labor practice" (5 U.S.C. 7118(a)(7)). 2. An agency should not have to adopt regulations at its peril. In petitioner's view (see Defense Logistics Agency v. FLRA, 754 F.2d 1003 (D.C. Cir. 1985)), whenever an agency issues a new regulation a component may later be found guilty of an unfair labor practice if it applies the regulation straightforwardly during collective bargaining but there is later found to be no compelling need for the regulation. That is surely wrong: an unfair labor practice finding under Section 7118 exposes the agency to various retroactive sanctions (see 5 U.S.C. 7118(a)(7); Defense Logistics Agency, 754 F.2d at 1006 n.7); as the court of appeals observed in Fort Belvoir (Pet. App. 62a), the Authority's approach "would hamstring an agency's ability to institute new regulations even when it perceives a compelling need for the change," and that result could not be avoided because the Authority's construction would "allow the expedited negotiability appeal procedure to be bypassed whenever a new regulation is instituted or an old one is modified" (ibid.). By contrast, a determination of no compelling need under Section 7117(b) results only in a prospective order to bargain (see Defense Logistics Agency, 754 F.2d at 1006 n.7), which "enables a government agency to act in furtherance of its essential mission without facing the charge and possible sanctions of an unfair labor practice" (Pet. App. 62a). C. The History of Title VII Confirms That Section 7117(b) Provides the Exclusive Procedure for Challenging Compelling Need Petitioner asserts (Br. 14-15, 20-24, 37-42) that its construction of Title VII accords with "established Executive Order practice which predated the Statute" (Br. 37). Beyond that, however, the Authority finds "no indication * * * in (the) legislative history that Congress intended (Section 7117(b)) to foreclose resolution of defenses of nonnegotiability, including compelling need issues, in unilateral change unfair labor practice cases" (Br. 13). Both propositions are mistaken. The Executive Orders established a separate and distinct procedure for resolving compelling need claims, and there is no reason to believe that under "established Executive Order practice" ULP proceedings were intended to be an acceptable alternative. Moreover, the legislative history of Title VII -- far from offering "no indication(s)" (Br. 30) on the question -- confirms that Congress considered the very issue presented in this case and rejected the interpretation offered by the Authority. Although it created alternative procedures -- an expedited appeal process in addition to the ULP forum -- to decide other negotiability issues, Congress indicated that it fully intended to make the procedure established by Section 7117(b) the exclusive means for resolving compelling need questions. 1. "Prior to enactment of Title VII, labor-management relations in the federal sector were governed by a program established in a 1962 Executive Order" (BATF v. FLRA, 464 U.S. at 91 (footnote omitted)), and amended thereafter by subsequent Executive Orders (see id. at 91 n.2). For the greater portion of that period, matters covered by agency-wide regulations were entirely non-negotiable, regardless of the compelling need for the regulation. Executive Order No. 11,491, issued on October 29, 1969, stated that agencies and labor organizations could "confer in good faith with respect to personnel policies and practices" but only to the extent "set forth in * * * published agency policies and regulations" (Section 11(a), Leg. Hist. 1250)). While a labor organization could appeal to the Federal Labor Relations Council, predecessor of the FLRA, if it believed that a bargaining proposal did not actually conflict with a particular agency regulation (Section 11(c)(4)(i), Leg. Hist. 1251), it could not challenge the compelling need for the regulation. And only the Council could decide negotiability issues; in a 1971 Report, the Council expressly rejected a proposal to amend the Executive Order to permit negotiability issues to be processed in unfair labor practice proceedings (Leg. Hist. 1266). In January 1975, the Council issued a Report and Recommendations that proposed a number of amendments to the Executive Order. See Leg. Hist. 1283-1335. Two separate Council recommendations, ultimately adopted as part of Executive Order No. 11,838 in February 1975 (see Leg. Hist. 1338, 1339), are pertinent. The first recommendation was to modify the extent to which agency regulations could bar negotiations. The Council observed that under the existing Order "meaningful negotiations at the local level on personnel policies and practices and matters affecting working conditions have been unnecessarily constricted in a significant number of instances by higher level agency regulations not critical to the effective agency management or the public interest" (Leg. Hist. 1306-1307). The Council recognized that "agency regulatory authority must be retained" (ibid.) but it concluded that "modifications in the present role of internal agency regulations as a bar to negotiations should be adopted, consistent with essential agency requirements" (id. at 1307). The Council therefore recommended that agency regulations "bar negotiations at the local level only if a 'compelling need' for such regulations exist" (id. at 1306). To implement this new rule, the Council proposed a detailed set of procedures. First, "disputes as to whether an agency regulation * * * meets the standard of 'compelling need' should be resolved by the Council on a case-by-case basis in negotiability appeals filed under Section 11(c) of the Order" (Leg. Hist. 1307). Second, consistent with a policy of deference to agency prerogatives, the Council proposed that a negotiability appeal not be entertained "unless the labor organization first requests * * * an exception to the regulation from the agency head and such exception is denied or not acted upon" (id. at 1310). Finally, to avoid "an unnecessary multiplication of challenges * * * (that) would unreasonably burden and impede the effective operation of the program," the Council recommended that compelling need appeals "may be filed only by the national president of a labor organization (or his designee) or the president of a labor organization not affiliated with a national organization (or his designee)" (id. at 1311). The Council's second recommendation, likewise adopted in the Executive Order, proposed a modification of the portion of Executive Order No. 11,491 under which only the Council was authorized to resolve negotiability questions. See Leg. Hist. 1323-1329. Because of that exclusive authorization to the Council, the Assistant Secretary of Labor, who was otherwise authorized to decide charges of unfair labor practices (see id. at 1325), had "consistently ruled that a party may not utilize the unfair labor practice provisions * * * as a means for resolving negotiability disputes" but could only file an unfair labor practice charge "where the matter excluded from negotiation has already been determined to be negotiable through the procedures set forth in section 11(c) of th(is) Order" (ibid.). The Council concluded that that procedure involved "(u)nnecessary additional steps" (ibid.) and noted that negotiability issues that arise in ULP proceedings "are often inextricably intertwined with disputed issues of fact which must be resolved in order to arrive at a conclusion" (id. at 1326-1327). The Council therefore recommended that where a negotiability issue arises "as a result of a respondent's alleged refusal to negotiate by unilaterally changing an established personnel policy or practice" the Assistant Secretary should be authorized to resolve that issue during a ULP proceeding (id. at 1324). The Authority contends (Br. 40) that Executive Order No. 11,838, adopting those two recommendations, demonstrates that prior to Title VII the ULP process was available for the resolution of compelling need issues that arose from unilateral changes in conditions of employment. But the "compelling need" and "negotiability" changes effected by Executive Order No. 11,838 were entirely separate changes intended to promote very different ends. On the one hand, by introducing the compelling need standard, the Executive Order adopted a limited exception to the principle that agency regulations should be a complete bar to negotiations; but to ensure that "agency regulatory authority (was) retained" (Leg. Hist. 1307), the Order provided that compelling need questions would be presented only on limited occasions and only to the Council. On the other hand, the grant of new authority to the Assistant Secretary to resolve negotiability issues in the course of an unfair labor practice determination did not advert to the issue of compelling need. This new authority was designed to enable the Assistant Secretary to avoid certain inefficiencies that had arisen during ULP proceedings under the previous Executive Order. There is no suggestion anywhere in Executive Order No. 11,838 that the Assistant Secretary was expected to assume any responsibility for the newly-created compelling need determinations. Only the Council was expressly given that responsibility. 2. The legislative history of Title VII itself confirms that Congress never intended the ULP process to be an alternative means of resolving compelling need disputes. Indeed, Congress considered (in a slightly different context) the very question presented in this case and rejected petitioner's interpretation. a. On July 31, 1978, the House Committee on Post Office and Civil Service reported H.R. 11280, 95th Cong., 2d Sess., entitled "A Bill To reform the civil service laws" (Leg. Hist. 372). H.R. 11280 was similar in most respects to the final legislation and served as the model on which Title VII was based. Section 7117 of H.R. 11280, governing the "duty to bargain in good faith" and "compelling need," differed in two principal respects from the comparable provision in the present Act (Leg. Hist. 409). First, unlike the present Act, Section 7117 of H.R. 11280 placed no limits on the duty to bargain about matters covered by agency-wide regulations. Second, H.R. 11280 did not entirely preclude negotiation over matters that are the subject of Government-wide rules and regulations (see 5 U.S.C. 7117(a)(1)); instead, employing the language now found in Section 7117(a)(2) as enacted, Section 7117 of H.R. 11280 authorized negotiation over Government-wide rules where "the Authority has determined under subsection (b) of this section that no compelling need (as determined under regulations prescribed by the Authority) exists." Leg. Hist. 409. Section 7117(b) of H.R. 11280 then set out the procedures for determining compelling need -- procedures essentially indistinguishable from the ones presently embodied in Section 7117(b) as enacted. See Leg. Hist. 409-410. In short, the version of Section 7117 proposed in H.R. 11280 contained the same compelling need language and procedures that were ultimately enacted, but did so in the context of government-wide -- not agency-wide -- regulations. In its report accompanying H.R. 11280, the House Committee addressed, in the context of the provision as it then stood, the question whether unfair labor practice proceedings would be an available means for resolving compelling need issues. The explicit answer was no. The Report states (H.R. Rep. 95-1403, 95th Cong., 2d Sess. 50 (1978), reprinted in Leg. Hist. 696 (emphasis added)): The committee intends that disputes concerning the negotiability of proposals and matters affecting working conditions, except for questions of "compelling need" under section 7117, be resolved through the filing and processing of unfair labor practice charges under Section 7116 and section 7118. Working with language nearly identical to the present version of Section 7117 (except that it was concerned with compelling need for government-wide rather than agency-wide regulations), the House Committee thus interpreted the language in a way that is flatly inconsistent with the position advanced by the Authority in this case: ordinary negotiability questions should be resolved in the ULP process, but compelling need questions were to be resolved in proceedings provided for in Section 7117. /13/ Emphasizing the point, the Report further stated that under Section 7117(b) the Authority should "hold a hearing (in accordance with regulations it shall prescribe) whenever an exclusively recognized labor organization alleges that no compelling need exists for a Government-wide rule or regulation which an agency has invoked as a bar to negotiations on a matter" (H.R. Rep. 95-1403, supra, at 51-52; Leg. Hist. 697-698 (emphasis added)). Further distinguishing the compelling need and ULP procedures, the Committee explained that at the hearings under Section 7117(b) "(t)he Authority's General Counsel may not be a party to the proceeding (as the General Counsel would be in an unfair labor practice case)" (H.R. Rep. 95-1403, supra, at 52; Leg. Hist. 698). b. On September 13, 1978, the House adopted an amendment to H.R. 11280, sponsored by Congressman Udall, whose guiding purpose was to "meet some of the legitimate concerns of the Federal employee unions as an integral part of what is basically a bill to give management the power to manage and the flexibility it needs" (Leg. Hist. 923 (Rep. Udall)). The Udall amendment made three pertinent changes to the text of Section 7117, producing the version ultimately enacted by Congress in Title VII. Two of the changes applied to government- and agency-wide regulations; in each case the amendment narrowed the scope of the duty to bargain. /14/ Subsection (a)(1) made "Government-wide rules or regulations an absolute bar to negotiations" (Leg. Hist. 927). Subsection (a)(2) provided in pertinent part that "agency rules or regulations are a bar to negotiations * * * unless a finding of 'no compelling need' for the rule or regulation is made by the Authority" (Leg. Hist. 927). The most important change made by the Udall amendment was to add what is now Section 7117(c) of Title VII. As noted above (see pages 23-24, supra), that Section provides "an expedited appeals system for resolving negotiability disputes other than those involving 'compelling need' determinations" (Leg. Hist. 927). See generally FLRA v. OPM, 778 F.2d at 845-846 & n.8; National Fed'n of Fed. Employees, Local 1167 v. FLRA, 681 F.2d at 889-890 & n.5. Under H.R. 11280 as initially reported, negotiability disputes other than compelling need could only "be resolved through the unfair labor practice mechanism" (Leg. Hist. 927). The Udall amendment created an alternative approach to the ULP process, providing "that an exclusive representative may appeal an agency's allegation of non-negotiability to the Authority" (ibid.). The purpose of Section 7117(c) was to ensure, to the extent possible, "that negotiability disputes not be subject to the cumbersome unfair labor practice procedures, but be resolved through the streamlined Section 7117(c) process." AFGE v. FLRA, 715 F.2d 627, 630 (D.C. Cir. 1983). But Congress made it clear ("may appeal") that this was only an optional alternative to raising the issue in a ULP proceeding: when Congress intended to allow alternative procedures, it knew how to do so. Cf. Lehman v. Nakshian, 453 U.S. 156, 162 (1981. c. Despite the foregoing, the Authority claims to find no evidence in the legislative history that Congress intended to depart from what it calls the "basic tenet of labor law that an employer assumes the risk of having breached (the duty to bargain) whenever the employer unilaterally changes working conditions without bargaining" (Br. 29). That claim misstates the significance of private-sector labor law for the present issue. In general, petitioner greatly overstates the extent to which Congress intended to apply private-sector labor law principles when it enacted Title VII. Cf. BATF v. FLRA, 464 U.S. at 103. The statute proclaims at the outset that its purpose is "to prescribe certain rights and obligations of the employees of the Federal Government" while at the same time "establish(ing) procedures which are designed to meet the special requirements and needs of the Government" (5 U.S.C. 7101(b)). As President Carter explained when he transmitted the proposed legislation to Congress, Title VII was designed "to make Executive Branch labor relations more comparable to those of private business" while still deferring to "the paramount public interest in the effective conduct of the public's business" (Leg. Hist. 626). "Congress recognzied that it could not merely transplant private employment statutes to the public employment context" (AFGE v. FLRA, 778 F.2d at 852), and "the degree of relevance of private sector case law to public sector labor relations will vary greatly depending upon the particular statutory provisions and legal concepts at issue" (Library of Congress v. FLRA, 699 F.2d at 1287). See generally Wellington & Winter, The Limits of Collective Bargaining in Public Employment, 78 Yale L.J. 1107 (1969). In particular, private-sector principles are not very helpful in determining the scope of a government employer's duty to bargain. "The scope of collective bargaining is far broader in the private sector, and the bargaining status of any given subject is determined by different statutory provisions and by different policy considerations" (Library of Congress v. FLRA, 699 F.2d at 1287 (footnote omitted)). Indeed, petitioner relied on that basic distinction in NTEU, Chapter 207 & FDIC Corp., 14 F.L.R.A. 598 (1984). In that case the Authority rejected the views of its dissenting member, who had suggested that a particular negotiability dispute be left to the collective bargaining process, just as it would have been had the "matter * * * arisen in the private sector context" (14 F.L.R.A. at 612). The majority retorted, "it should be clear by now, over 5 years having passed since the enactment of the Statute, that the legal framework which governs our decision today was 'designed to meet the special needs and requirements of government.' Part of the legal framework which governs our decision today is section 7117(a)(2) * * *. Our colleague favors 'free' collective bargaining. We favor collective bargaining within the statutory framework." Ibid. (footnote omitted). D. Petitioner's Reliance on "Considerations of Public Policy" is Misplaced All but ignoring the text, and finding nothing in the history of Title VII to support its position, petitioner relies on two "considerations of public policy" (Br. 42). First, it states that "it is in the interest of the efficient and effective administration of the Statute that all issues which arise in an unfair labor practice dispute be resolved in that unfair labor practice dispute" (id. at 42-43). Second, it asserts that "(t)here are no drawbacks" to its approach, since "regardless of whether the compelling need issue is processed as part of a unilateral change unfair labor practice case, agencies remain able to * * * enforce, as a bar to collective bargaining, any regulation which Congress intended to bar collective bargaining" (id. at 43). Petitioner's efficiency claim misdirects the eye. There is no reason to think it is efficient to resolve "compelling need" along with all other issues in a ULP proceeding, rather than in the expeditious separate appeal Congress directed the Authority to provide for. And if Congress thought it best to resolve all issues in a ULP proceeding, it is hard to see why it enacted section 7117(b) to resolve compelling need claims, or why it established Section 7117(c) as an alternative means of resolving all other negotiability questions. The answer, plainly, is that Congress recognized that a separate, expedited procedure for deciding compelling need issues would serve the larger efficiency goal of permitting the issuing agency to defend its regulations, to the FLRA itself, without the adversarial baggage of the ULP process. That goal -- and not petitioner's assertion of "unified processing" (Br. 43) -- is intimately tied to the explicit policy of Title VII "to prescribe certain rights and obligations of the employees of the Federal Government" while at the same time "establish(ing) procedures which are designed to meet the special requirements and needs of the Government" (5 U.S.C. 7101(b)). The Authority is on no firmer ground when it casually contends that there are "no drawbacks" (Br. 43) to its approach in this case. That claim is, first of all, irrelevant, since Congress is entitled to expect its statutes to be obeyed, even when there are "no drawbacks" associated with disobedience. Cf. AFGE v. FLRA, 715 F.2d at 627, 630 (rejecting as a "contraven(tion) (of) the clear statutory mandate" FLRA's assertion that it had a "discretionary power" to deny appeals taken under Section 7117(c)). But petitioner's claim is also mistaken. Permitting the issuing agency to defend its regulations in a separate proceeding before the Authority ensures that the best defense of those regulations will be made, and that the agency will not risk conflicting compelling need determinations arising from scattered ULP proceedings at the local level. /15/ Exposing the agency to ULP liability, and retroactive sanctions (see 5 U.S.C. 7118(a)(7)), disrupts the regulatory process and disserves the evident intent of Congress that the provisions of Title VII "be interpreted in a manner consistent with the requirement of an effective and efficient Government" (5 U.S.C. 7101(b)). We accept the general proposition that "the Authority is entitled to considerable deference when it exercises its 'special function of applying the general provisions of the Act to the complexities' of federal labor relations" (BATF v. FLRA, 464 U.S. at 97 (citation omitted)). But as the Court explained when it rejected the Authority's interpretation of Title VII in the BATF case, "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'" (ibid. (citation omitted)). In the present case, as in BATF, "the FLRA's decision * * * neither rests on specific congressional intent nor is consistent with the policies underlying the Act" (id. at 98 n.8). Reliance on untethered and in any event erroneous "considerations of public policy" is no substitute for the text and history of the statute. And deference to the Authority's discretion in this case comes at the considerable expense of the more fundamental discretion of other federal agencies -- whose capacity to regulate their own affairs would be adversely affected by the Authority's construction of Title VII. CONCLUSION The judgment of the court of appeals should be affirmed. Respectfully submitted. CHARLES FRIED Solicitor General RICHARD K. WILLARD Assistant Attorney General Louis R. COHEN Deputy Solicitor General LAWRENCE S. ROBBINS Assistant to the Solicitor General WILLIAM KANTER DEBORAH R. KANT Attorneys DECEMBER 1987 /1/ The executive order program was revised and continued by Exec. Order No. 11,491, 3 C.F.R. 861 (1966-1970 comp.), as amended by Exec. Orders Nos. 11,616, 11,636, and 11,838, 3 C.F.R. 305, 634, 957 (1971-1975 comp.). See pages 31-35 infra. /2/ The FLRA replaced the Federal Labor Relations Council, which had similar responsibilities under the executive order program. /3/ See also 124 Cong. Rec. 33389 (1978) (Sen. Percy) (Title VII "represents a fair balance between the rights of employees to form and participate in bargaining units * * * and the need of the Government to maintain the efficiency of its operations"); NTEU v. FLRA, 691 F.2d 553, 560-561 & nn.69-73 (D.C. Cir. 1982). /4/ Under 5 U.S.C. 7103(a)(14), the duty to bargain also excludes "policies, practices, and matters -- (A) relating to political activities * * *; (B) relating to the classification of any position; or (C) to the extent such matters are specifically provided for by Federal statute." And under 5 U.S.C. 7117(a)(1), there is no duty to bargain about "matters which are the subject of * * * a Government-wide rule or regulation." See Library of Congress v. FLRA, 699 F.2d 1280, 1283-1284 & n.16 (D.C. Cir. 1983). /5/ DA Regulation CPR 990-2 provides in relevant part (Pet. App. 42a-43a (quotation marks omitted)): S3-2. Relieving Daily, Hourly, or Piecework Employees From Duty * * * * * c. Where advance notice can be given. The Authority to excuse employees administratively is not to be used in instances where the period of interrupted or suspended operations can be anticipated sufficiently in advance to permit arranging for assignment to other work or the scheduling of annual leave. Normally, where 24 hours' advance notice can be given, employees who cannot be assigned to other work must be placed on annual leave with or without their consent. DOD Regulation 1400.25-M provides in relevant part (Pet. App. 43a (quotation marks omitted)): S3-1 * * * d. Limitation on Authority to Dismiss Exmployees Without Charge to Leave * * * * * (2) When, because of planned management reasons, the closing of all or part of an activity is required for short periods of time, employees will be notified no less than one full work shift in advance and will be required to take annual leave unless leave without pay is requested. (3) Group dismissal authority will not be used to create a holiday. /6/ Petitioner's failure to come to grips with the statutory language of Title VII is epitomized by its assertion (Br. 3-4) that Section 7117(a)(2) provides that "there is * * * no duty to bargain over proposed contract language which would bring about an inconsistency with either an agency regulation or a regulation of an agency's primary national subdivision whenever the Authority determines, under the criteria set forth in 5 C.F.R. 2424.11, that a compelling need exists for the regulation." What Section 7117(a)(2) actually says is (i) that there is no duty to bargain unless the Authority has determined that there is no compelling need and (ii) that such a determination shall be made "under subsection (b) of this section." /7/ Congress enacted both the compelling need provisions and the provisions in Section 7117(c) at the same time, and "'(w)here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.'" Russello v. United States, 464 U.S. 16, 23 (1983) (citation omitted). Accord INS v. Cardoza-Fonseca, No. 85-782 (Mar. 9, 1987), slip op. 10. See also Kissinger v. Reports Comm. for Freedom of the Press, 445 U.S. 136, 148-149 (1980); Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 19-20 (1979). /8/ Petitioner repeatedly contends (Br. 13-14, 18, 30, 34-35, 41) that because Section 7117(c) enables a union to litigate certain negotiability issues either in a negotiability appeal or in a ULP forum, Section 7117(b) should be construed to give the union the same choice with respect to compelling need. We agree that Section 7117(c) is persuasive evidence of congressional intent; but for the reasons stated, we believe that the Authority has drawn precisely the wrong lesson from its provisions. Petitioner also observes (Br. 34-35 & n.30) that all but one of the procedures available under Section 7117(b) for resolving compelling need questions are likewise available under Section 7117(c) for deciding other negotiability appeals. It accordingly asserts that the decision to include those procedures in Section 7117(b) cannot be taken as evidence that Congress intended that section to preclude alternative relief in a ULP proceding. But the Authority nowhere responds to two central points. First, as we have noted (see pages 23-24, supra), Section 7117(c) is explicitly permissive; it states that the union may select a negotiability appeal as an alternative to the ULP forum. Second, the one procedural difference between Section 7117(b) and Section 7117(c) is crucial: in a Section 7117(b) hearing -- but not in a Section 7117(c) hearing -- the agency is a necessary party. Petitioner suggests (Br. 34-35 n.30) that that requirement was designed merely to give the issuing agency "an opportunity to waive the regulation as a bar to bargaining." But the agency is already afforded such an opportunity under Section 7117(b)(2)(A); and if it exercises a waiver, no compelling need hearing is even held. If it chooses not to waive, however, a hearing is available, and the agency is a necessary party -- not so that it may enjoy a second waiver opportunity, but for the obvious and salutary purpose of permitting the agency to defend the importance of its own regulation. /9/ Recognizing the especially intrusive nature of the compelling need inquiry, Congress has provided that, in the absence of a determination by the Authority, compelling need may only be found lacking when "the agency, or primary national subdivision, as the case may be, which issued the rule or regulation informs the Authority in writing that a compelling need for the rule or regulation does not exist" (5 U.S.C. 7117(b)(2)(A). /10/ Petitioner acknowledges (Br. 25) that it imposes the burden of proof on the agency. See 5 C.F.R. 2424.11; AFGE, Social Security Local 3231 & Dep't of Health & Human Services, Social Security Adm'n, 16 F.L.R.A. 47, 48 (1984); NTEU, Chapter 207 & FDIC Corp., 14 F.L.R.A. 598, 599 (1984); AFGE, Local 1928 & Dep't of the Navy, 2 F.L.R.A. 451 (1980). /11/ The Authority's predecessor under the Executive Orders, the Federal Labor Relations Council, whose regulations governing compelling need where substantially the same as the Authority's present regulations (see H. Robinson, Negotiability in the Federal Sector 16 n.31 (1981)), explained that its compelling need criteria established "a stringent standard" and that they "were designed and adopted to the end that internal 'agency regulations not critical to effective agency management or the public interest' would be prevented from resulting in negotiations at the local level being 'unnecessarily constricted'" (id. at 17 (emphasis in the original)). In view of the Authority's approach to compelling need, it is hardly surprising that petitioner could find only 12 out of 85 cases (see Br. 26-27 & n.24), in which a claim of compelling need was upheld by the FLRA. /12/ The evident reason for this is that the General Counsel, as the prosecutor in the ULP forum, is chiefly responsible for the presentation of the merits of unfair labor practice complaints and should not have the additional duty to assist in resolving the threshold question of compelling need for agency-wide regulations. /13/ The interpretation made by the House Committee is the appropriate one to apply to Title VII as enacted. When Title VII emerged from conference, the conferees adopted the versions of Section 7117 passed by the House. See H.R. Conf. Rep. 95-1717, 95th Cong., 2d Sess. 158 (1978). Discussing the compelling need issue, Congressman Ford, a conferee and "a major participant in the fashioning of the House language on Title VII" (Leg. Hist. 989 (Rep. Ford)), explained that "(t)he House committee's description of 'compelling need' has continued to be the intention behind this provision" (id. at 992), and he reported that the Conference Committee was correct when it stated that in adopting Section 7117 Congress had "'follow(ed) the House approach throughout th(e) section'" (Leg. Hist. 996). /14/ Petitioner acknowledges (Br. 23-24) that the Udall amendment reduced the scope of bargaining over matters governed by government- and agency-wide regulations. It contends, however, that in two other respects the amendment "broade(ned) bargaining rights" (Br. 24). In neither of these other respects is the Authority correct. First, it was not the Udall amendment that made it an unfair labor practice for an agency to enforce a regulation if it conflicted with a collective bargaining agreement that pre-dated the regulation (ibid.). The identical language was in H.R. 11280, and the Udall amendment made no change. See Leg. Hist. 406, 915, 926. Second, the amendment did not "broaden" the duty to bargain when it permitted unions that represent a majority of the issuing agency's employees to bargain over matters governed by a regulation justified by compelling need. That exception was merely a qualification of the more important change made by the Udall amendment -- abandoning the language of H.R. 11280, which would have authorized bargaining over matters covered by any agency-wide regulation, regardless of compelling need. For those reasons and others, critics of the Udall amendment -- far from viewing it, in petitioner's words, as effecting "broader bargaining rights" (Br. 24) -- declared that the proposal "was written long ago by the Business Roundtable" (Leg. Hist. 930 (Rep. Clay)). /15/ The Authority recognized that point in Association of Civilian Technicians, Montana Air Chapter v. FLRA, supra. In that case a union raised an equal protection challenge to Section 7117(a)(3) of Title VII, which permits an exclusive representative to negotiate about matters covered by an agency regulation -- regardless of compelling need -- when it "represents an appropriate unit including not less than a majority of the employees in the issuing agency * * * to whom the rule * * * is applicable." The union asserted that there was no rational basis for distinguishing between large and small labor organizations. The Authority persuaded the court of appeals (see 756 F.2d at 178) that the distinction in Section 7117(a)(3) was rational, arguing in its brief that "Congress' action ensured that an agency's regulations for which there is a compelling need would not be subject to different sets of negotiations in numerous bargaining units throughout the agency, with the potential for such negotiations yielding widely disparate results throughout the agency" (FLRA Br. at 22 (cited at 756 F.2d at 178 n.29)).