The opinion
KRUPANSKY, Circuit Judge,
dissenting.
Because I cannot concur with the majority’s conclusion that the bargaining propos *552 ais here at issue were negotiable under 5 U.S.C. § 7106 , I must respectfully dissent. Title VII of the Civil Service Reform Act of 1978, 5 U.S.C. § 7101 et seq., describes a federal government agency’s duty to bargain with its employees’ collective bargaining representative. 5 U.S.C. § 7106 provides, in pertinent part:
(a) Subject to subsection (b) of this section, nothing in this chapter shall affect the authority of any management official of any agency —
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(2) in- accordance with applicable laws—
(A) to hire, assign, direct, layoff, and retain employees in the agency, or to suspend, remove, reduce in grade or pay, or take other disciplinary action against such employees;
(B) to assign work, to make determinations with respect to contracting out, and to determine the personnel by which agency operations shall be conducted;
(C) with respect to filling positions, to make selections for appointments from—
(i) among properly ranked and certified candidates for promotion; or
(ii) any other appropriate source;
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(b) Nothing in this section shall preclude any agency and any labor organization from negotiating—
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(2) procedures which management officials of the agency will observe in exercising any authority under this section____
(emphasis added).
The Federal Labor Relations Authority (FLRA) interpreted the controversial proposals here at issue as limiting the Navy’s authority to merely defining the qualifications and skills required to perform the duties of an existing position vacancy and thereafter mechanically reassigning identified qualified personnel to fill the vacancy in the order of their seniority, thereby foreclosing the Navy from selecting, in the exercise of its discretion, the most qualified employee from the available pool for assignment to the existing vacancy. 1 The FLRA, as well as the majority of this panel, has concluded that these proposals “merely set forth a procedure the [Navy] will use when selecting among employees previously determined by management to be qualified to perform the work required by reassignment.” Local Lodge 830, Int’l Ass’n of Machinists and Aerospace Workers, AFL-CIO v. United States Naval Ordnance Station, Louisville, Ky., 20 FLRA 848, 850 (1985). I cannot agree.
In Department of Defense v. Federal Labor Relations Auth., 659 F.2d 1140 (D.C.Cir.1981), cert. denied, 455 U.S. 945 , 102 S.Ct. 1443 , 71 L.Ed.2d 658 (1982), the District of Columbia Circuit concluded that proposals, which were indistinguishable from those in the instant case, were nonnegotiable under § 7106. The virtually iden *553 tical proposals submitted by the union in that case, limited the agency to specify the qualifications for a particular work assignment and to mechanically assign qualified employees solely upon seniority. 2 The court, adopting the FLRA’s determination that the proposals were nonnegotiable, concluded that the proposals would have “directly interfered” with management’s right to assign employees under § 7106(a):
Five of the seven union proposals at issue ... involve procedures that would have conditioned certain job assignments at least partly on an employee’s seniority. These proposals obviously implicate substantive concerns. They identify a substantive criterion — namely, length of employment — on the basis of which personnel assignments would be made.
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The FLRA’s decisions on the seniority proposals before it followed logically from its determination that Section 7106(a) protected the agency’s right to exercise discretion at the conclusion of procedures to test and quantify employee qualifications. Union Proposals IV, V, VI, and VII would each have compelled selection of a particular individual, based on seniority, at least in some instances. Once the agency had “determined the particular qualifications and skills needed to perform the work of the position to which the employee will be assigned, and identified the employees in the unit who meet those requirements and would be available for assignment, selection from among the employees so identified of the particular employee who will be assigned must be on the basis of seniority.” The Authority held the proposals nonnegotiable on this basis. “In compelling the selection of a particular individual for temporary assignment to another position” — and thus removing the agency’s discretion to make individual judgments based on the judgment and reliability of particular persons — the proposals “directly interfere[d] with the right of the agency to assign employees.”
Id. at 1159-61 (emphasis added) (footnotes omitted). Although the proposals in Department of Defense did not encroach upon the agency’s discretion to “determine[] the particular qualifications and skills needed to perform the work of the position” and to “identif[y] the employees in the unit who [met] those requirements,” Id. at 1160-61, the court nevertheless concluded that they impermissibly interfered with the agency’s right under § 7106(a) to assign its employees. The nonnegotiability of the proposals therein derived from the fact that “[t]hey identified] a substantive criterion — namely, length of employment — on the basis of which personnel assignments would be made.” Id. at 1159. “[T]o specify any criterion, however reasonable, is to invade management’s exclusive statutory preserve.” National Treasury Employees Union v. Federal Labor Relations Auth., 767 F.2d 1315, 1317 (9th Cir.1985). 3
Because the bargaining proposals submitted by the union in this case specified a substantive criterion, i.e. seniority, by which the Navy would be required to make personnel assignments, I cannot agree that they delineated merely procedures which the Navy would observe in exercising its reserved right to assign employees under § 7106. The specification of seniority as a criterion for the assignment of employees *554 removed the proposals from the realm of negotiability. Accordingly, I must respectfully dissent from the majority’s decision to enforce the FLRA’s order.
. Specifically, the union’s proposals addressed interdepartmental or intergroup transfers to fill existing job vacancies within the Navy's operations at the Naval Ordnance Station at Louisville, Kentucky. The disputed portions of the proposals provided:
Section 9 WORK ASSIGNMENTS
a. * * * When it becomes necessary to assign an employee from one group to another group, volunteers will be sought using service computation date (seniority) with the most senior given the opportunity to volunteer first. In the absence of volunteers the assignment will be made using the inverse order of seniority, (SCD), subject to paragraph c. below. b. * * * (l) Qualified volunteers will be given first preference for the transfer. If there are more than one qualified volunteer(s) than required those qualified volunteers having the highest seniority, by service computation date, will be given first preference. Where there are less qualified volunteers than required assignment will be made by assigning those having least seniority, by service computation date, from among the qualified non-volunteers.
These controversial proposals would require the Navy to seek volunteers for transfer or assignment to job vacancies, and thereafter to mechanically transfer or assign the most senior qualified volunteer. In reverse, if there were no qualified volunteers for less desirable job vacancies, or fewer qualified volunteers than necessary to fill the vacancies, then under those circumstances the Navy would be required to transfer the least senior qualified nonvolunteer.
. For example, union proposal number IV in that case provided that "[d]etails to lower grade positions will be rotated among qualified and available employees in reverse order of seniority." 659 F.2d at 1149 n. 54 (emphasis added). Union proposal V provided that "[s]election of employees for loans will be equitably rotated among qualified and available employees with requisite skills in inverse order of seniority." 659 F.2d at 1149 n. 55 (emphasis added). The Department of Defense proposals are set forth in full in the majority opinion at n. 5.
. The Department of Defense court upheld the FLRA’s determination that another proposal, which would have permitted use of "competitive procedures” in making employee assignments in lieu of assignment by seniority, was bargainable. Competitive procedures “retain the agency’s right to ‘select or not select from among a group of best qualified candidates.’ ” 659 F.2d at 1161 (citations omitted). The proposals in this case do not contain such a provision which preserves the Navy’s discretion.