National Treasury Employees Union and Pension Benefit Guaranty Corporation (Authority decision, August 3, 1982)

Final FLRA decision. This is a final Authority order. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

NTEU proposed bargaining over pay for Pension Benefit Guaranty Corporation employees. The Authority held that federal law fixed General Schedule pay rates and prescribed how they could change. It concluded that the proposal concerned a matter specifically provided for by law and dismissed the petition.

Decision snapshot

• Authority: 5 U.S.C. § 7103(a)(14)(C).
• Outcome: Pay proposal held nonnegotiable; petition dismissed.
• Key point: General Schedule pay rates were controlled by federal law.

Full text (FLRA public release)

[ v09 p692 ]

09:0692(82)NG

The decision of the Authority follows:

9 FLRA No. 82

NATIONAL TREASURY EMPLOYEES UNION
Union

and

PENSION BENEFIT GUARANTY
CORPORATION
Agency

Case No. O-NG-320

DECISION AND ORDER ON NEGOTIABILITY ISSUE

THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE FEDERAL LABOR
RELATIONS AUTHORITY (THE AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) AND
PRESENTS ISSUES AS TO THE NEGOTIABILITY OF THE FOLLOWING PROPOSAL:

WAGES

SECTION 1

THE SALARY STRUCTURE, THAT IS THE GRADES AND STEPS OF THE GENERAL
SCHEDULE, BEING USED IN

PBGC WILL BE MAINTAINED. HEREINAFTER, ALL EMPLOYEES WILL HAVE THEIR
CURRENT SALARIES ADJUSTED

FOR THE COST-OF-LIVING/COMPARABILITY FACTOR. THE ADJUSTMENT WILL BE
EQUAL TO THE STATISTICAL

ADJUSTMENT RECOMMENDED TO THE PRESIDENT BY THE PAY ADVISORY COUNCIL.
(AFTER OCTOBER 1980 THE

ADJUSTMENT FACTOR DEVELOPED BY THE COUNCIL WILL BE MODIFIED TO
ACCOUNT FOR THE DIFFERENT

COMPARABILITY POSITIONS BETWEEN PBGC AND THOSE EMPLOYEES UNDER THE
GENERAL

SCHEDULE. BEGINNING IN JANUARY 1981 THE PARTIES WILL MEET TO SEEK
AGREEMENT ON A MODIFICATION

FORMULA.) THIS ADJUSTMENT WILL BECOME EFFECTIVE THE BEGINNING OF THE
FIRST PAY PERIOD

FOLLOWING THE ANNOUNCEMENT OF IT BY THE COUNCIL OR OTHER APPROPRIATE
SOURCES. IT WILL BE

UNAFFECTED BY PRESIDENTIAL OR CONGRESSIONAL ACTIONS.

SECTION 2

NTEU AGREES TO ESTABLISH WITH THE EMPLOYER A PRODUCTIVITY COMMITTEE
THAT WILL MONITOR THE

IMPACT OF THE NEW SALARY ADJUSTMENT SYSTEM AND SEEK REASONABLE WAYS
TO INCREASE THE

PRODUCTIVITY OF THE EMPLOYER, E.G., DECREASE EMPLOYEE TURNOVER,
REMOVE WORK OBSTACLES, IMPROVE

UPON AVAILABLE MACHINERY AND PROCEDURES, RAISE EMPLOYEE MORALE, ETC.

QUESTION BEFORE THE AUTHORITY

THE QUESTION PRESENTED IS WHETHER THE UNION'S PROPOSAL IS WITHIN THE
AGENCY'S DUTY TO BARGAIN OR, AS ALLEGED BY THE AGENCY, DOES NOT CONCERN
A CONDITION OF EMPLOYMENT WITHIN THE MEANING OF SECTION 7103(A)(14)(C)
OF THE STATUTE.

OPINION

CONCLUSION AND ORDER: THE UNION'S PROPOSAL DOES NOT CONCERN A
CONDITION OF EMPLOYMENT WITHIN THE MEANING OF SECTION 7103(A)(14)(C) OF
THE STATUTE. /1/ ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE
AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10 (1982)), IT IS ORDERED
THAT THE PETITION FOR REVIEW BE, AND IT HEREBY IS, DISMISSED.

REASONS: UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD, INCLUDING
THE PARTIES' CONTENTIONS /2/ AND THE BRIEF AMICUS CURIAE FILED PURSUANT
TO SECTION 2429.9 OF THE AUTHORITY'S RULES AND REGULATIONS BY THE OFFICE
OF PERSONNEL MANAGEMENT, THE AUTHORITY MAKES THE FOLLOWING
DETERMINATIONS. THE DUTY TO BARGAIN UNDER THE STATUTE EXTENDS TO THE
CONDITIONS OF EMPLOYMENT OF BARGAINING UNIT EMPLOYEES. MATTERS
"SPECIFICALLY PROVIDED FOR BY FEDERAL STATUTE," HOWEVER, ARE EXPRESSLY
EXCLUDED FROM THE DEFINITION OF "CONDITIONS OF EMPLOYMENT" IN SECTION
7103(A)(14)(C) AND, HENCE, ARE NOT WITHIN THE SCOPE OF THE DUTY TO
BARGAIN. /3/ THE UNION'S PROPOSAL, BOTH ON ITS FACE AND AS INTERPRETED
BY THE UNION, WOULD REQUIRE THE AGENCY TO NEGOTIATE A SYSTEM OF
ADJUSTING SALARIES AND WOULD REQUIRE THE ESTABLISHMENT OF SALARY RATES
BASED ON SUCH ADJUSTMENTS.

IN GENERAL, THE COMPENSATION OF FEDERAL EMPLOYEES IS SPECIFICALLY
PROVIDED FOR BY THE "GENERAL SCHEDULE" PAY RATES SET FORTH AT 5 U.S.C.
5332. IF SUCH RATES APPLY TO THE BARGAINING UNIT POSITIONS INVOLVED IN
THE INSTANT CASE, THEN IT MUST BE CONCLUDED THAT THE DISPUTED PROPOSAL
CONCERNS MATTERS SPECIFICALLY PROVIDED FOR BY FEDERAL STATUTE WHICH, AS
ALREADY STATED, ARE NOT WITHIN THE DUTY TO BARGAIN. IN THIS REGARD, THE
GENERAL SCHEDULE APPLIES TO AGENCIES AND EMPLOYEES AS DEFINED BY 5
U.S.C. 5102 /4/ WHICH DEFINES THE TERM "AGENCY" TO MEAN AN EXECUTIVE
AGENCY. SECTION 5102 CONTAINS NUMEROUS EXCEPTIONS, TWO OF WHICH, THE
UNION ARGUES, OPERATE TO EXCEPT THE AGENCY FROM THE GENERAL SCHEDULE PAY
RATES.

FIRST, THE UNION ARGUES THAT THE AGENCY IS EXCLUDED BY 5 U.S.C.
5102(A)(1)(I) /5/ AS A "GOVERNMENT CONTROLLED" CORPORATION. UNDER TITLE
5, U.S. CODE, THERE ARE TWO TYPES OF GOVERNMENT CORPORATIONS:
GOVERNMENT OWNED AND GOVERNMENT CONTROLLED CORPORATIONS. 5 U.S.C.
103(2) SPECIFICALLY PROVIDES THAT A GOVERNMENT CONTROLLED CORPORATION
DOES NOT INCLUDE A CORPORATION OWNED BY THE UNITED STATES. IN THIS
CONNECTION, THE AGENCY IS A "WHOLLY OWNED GOVERNMENT CORPORATION," (31
U.S.C. 846) AND THEREFORE, UNDER 5 U.S.C. 103(2) CANNOT BE A GOVERNMENT
CONTROLLED CORPORATION FOR THE PURPOSES OF TITLE 5, U.S. CODE, AS
CLAIMED BY THE UNION. ACCORDINGLY, THE AGENCY IS NOT EXCLUDED BY 5
U.S.C. 5102(A)(1)(I) FROM THE DEFINITION OF "AGENCY" TO WHICH CHAPTERS
51 AND 53 OF TITLE 5, U.S. CODE APPLY.

THE SECOND EXCLUSION ARGUED BY THE UNION IS BASED ON 5 U.S.C.
5102(C)(14), /6/ WHICH PROVIDES THAT CHAPTER 51 DOES NOT APPLY TO
EMPLOYEES WHOSE PAY IS NOT WHOLLY FROM APPROPRIATED FUNDS OF THE UNITED
STATES. /7/ THE AGENCY'S DISBURSEMENTS ARE MADE FROM REVOLVING FUNDS
COMPRISED OF PREMIUMS PAID BY THE COVERED PENSION PLANS. 29 U.S.C.
1305. THE ESTABLISHMENT OF A REVOLVING FUND, REPLENISHED BY MONIES FROM
THE PUBLIC, CONSTITUTES AN ON-GOING APPROPRIATION OF FUNDS. UNITED
BISCUIT COMPANY OF AMERICA V. WIRTZ, 359 F.2D 206, 212 (D.C. CIR.
1965), CERT. DENIED, 384 U.S. 971 (1966). FURTHER, IN THIS CONNECTION,
THE COMPTROLLER GENERAL OF THE UNITED STATES HAS HELD THAT WHEN THE
CONGRESS SPECIFIES THE MANNER IN WHICH A FEDERAL ENTITY SHALL BE FUNDED
AND MAKES SUCH FUNDS AVAILABLE FOR OBLIGATION OR EXPENDITURE, THAT
CONSTITUTES AN APPROPRIATION. B-193573, DECEMBER 19, 1979. SEE ALSO
B-193573, JANUARY 8, 1979. /8/ THE PENSION BENEFIT GUARANTY CORPORATION
IS A BODY CORPORATE ESTABLISHED WITHIN THE DEPARTMENT OF LABOR. 29
U.S.C. 1302. THE DEPARTMENTS OF LABOR AND HEALTH, EDUCATION, AND
WELFARE APPROPRIATIONS ACT OF 1979 MAKES PROVISIONS REGARDING THE
PENSION BENEFIT GUARANTY CORPORATION WHICH ARE MATERIALLY IDENTICAL TO
THOSE FOUND BY THE COMPTROLLER GENERAL TO CONSTITUTE APPROPRIATIONS.
BASED UPON THE FOREGOING, IT IS CONCLUDED THAT THE AGENCY'S REVOLVING
FUNDS ARE UNDER LAW APPROPRIATED FUNDS. ACCORDINGLY, THE AGENCY IS NOT
EXCLUDED BY 5 U.S.C. 5102(C)(14) FROM THE APPLICATION OF CHAPTERS 51 AND
53 OF TITLE 5, U.S. CODE.

FINALLY, THE UNION ARGUES THAT THE AGENCY IS EXCLUDED FROM THE PAY
PROVISIONS OF CHAPTER 53, U.S. CODE, BY 29 U.S.C. 1302(B)(6), WHICH
STATES:

SEC. 1302. ESTABLISHMENT; POWERS; BOARD OF DIRECTORS; BOARD
MEETINGS; BYLAWS AND

RULES; EXEMPTION FROM TAXATION; BUDGET; ADVISORY COMMITTEE

. . . .

(B) TO CARRY OUT THE PURPOSES OF THIS SUBCHAPTER, THE CORPORATION HAS
THE POWERS CONFERRED

ON A NONPROFIT CORPORATION UNDER THE DISTRICT OF COLUMBIA NONPROFIT
CORPORATION ACT AND, IN

ADDITION TO ANY SPECIFIC POWER GRANTED TO THE CORPORATION ELSEWHERE
IN THIS SUBCHAPTER OR

UNDER THAT ACT, THE CORPORATION HAS THE POWER--

. . . .

(6) TO APPOINT AND FIX THE COMPENSATION OF SUCH OFFICERS, ATTORNEYS,
EMPLOYEES, AND AGENTS

AS MAY BE REQUIRED, TO DETERMINE THEIR QUALIFICATIONS, TO DEFINE
THEIR DUTIES, AND, TO THE

EXTENT DESIRED BY THE CORPORATION, REQUIRE BONDS FOR THEM AND FIX THE
PENALTY THEREOF, AND TO

APPOINT AND FIX THE COMPENSATION OF EXPERTS AND CONSULTANTS IN
ACCORDANCE WITH THE PROVISIONS

OF SECTION 3109 OF TITLE 5(.) THE UNION CONTENDS THAT THIS STATUTE
EMPOWERS THE AGENCY TO FIX THE COMPENSATION OF ITS EMPLOYEES WITHOUT
REFERENCE TO CHAPTERS 51 AND 53 OF 5 U.S. CODE. EMPHASIZING THE ABSENCE
OF LANGUAGE REQUIRING THE AGENCY TO FIX COMPENSATION IN ACCORDANCE WITH
THE CIVIL SERVICE LAWS, THE UNION ARGUES, CITING THE ENABLING LAWS OF
SEVERAL FEDERAL AGENCIES, THAT WHEN CONGRESS INTENDS A FEDERAL AGENCY TO
BE SUBJECT TO THE CLASSIFICATION ACT OF 1949, IT EXPRESSES THAT INTENT
IN EXPLICIT LANGUAGE. THE UNION THEREFORE CONCLUDES THAT THE ABSENCE OF
LANGUAGE SUBJECTING THE AGENCY TO THE CIVIL SERVICE LAWS OR THE
CLASSIFICATION ACT DEMONSTRATES THE INTENT OF CONGRESS THAT THE AGENCY
BE EXCLUDED FROM THOSE LAWS.

THE AUTHORITY CONCLUDES, CONTRARY TO THE UNION, THAT MERELY THE
ABSENCE OF INCLUSORY LANGUAGE IN AN AGENCY'S ENABLING STATUTE, WITHOUT
MORE, IS WITHOUT DISPOSITIVE SIGNIFICANCE. SUCH MATTERS ARE NOT DEALT
WITH IN SO CONSISTENT A MANNER AS TO PERMIT SUCH AN ASSUMPTION. IN SOME
ENABLING PROVISIONS, FOR EXAMPLE, CONGRESS EXPLICITLY PROVIDES THAT THE
EMPLOYEES OF THE AGENCY INVOLVED ARE NOT SUBJECT TO CERTAIN PROVISIONS
OF TITLE 5, U.S. CODE. SEE, E.G., 42 U.S.C. 8104(A) REGARDING THE
NATIONAL NEIGHBORHOOD REINVESTMENT CORPORATION WHICH PROVIDES THAT:

THE BOARD SHALL HAVE POWER TO SELECT, EMPLOY, AND FIX THE
COMPENSATION AND BENEFITS OF SUCH

OFFICERS, EMPLOYEES, ATTORNEYS, AND AGENTS AS SHALL BE NECESSARY FOR
THE PERFORMANCE OF ITS

DUTIES UNDER THIS SUBCHAPTER, WITHOUT REGARD TO THE PROVISIONS OF
TITLE 5 GOVERNING

APPOINTMENTS IN THE COMPETITIVE SERVICE, CLASSIFICATION, AND GENERAL
SCHEDULE PAY RATES,

EXCEPT THAT NO OFFICER, EMPLOYEE, ATTORNEY, OR AGENT OF THE
CORPORATION MAY BE PAID

COMPENSATION AT A RATE IN EXCESS OF THE HIGHEST RATE PROVIDED FOR
GS-18 OF THE GENERAL

SCHEDULE UNDER SECTION 5332 OF TITLE 5. SEE ALSO 40 U.S.C.
490(A)(15).

MOREOVER, THE LEGISLATIVE HISTORY OF 29 U.S.C. 1302(B)(6) INDICATES
THAT CONGRESS INTENDED THE AGENCY TO BE SUBJECT TO THE PAY AND
CLASSIFICATION PROVISIONS OF TITLE 5:

THE CORPORATION'S PERSONNEL WILL BE APPROPRIATELY CLASSIFIED IN THE
USUAL CATEGORIES, AND

THEY ARE TO BE NONPOLITICAL. (H. CONF. REP. 93-1280, REPRINTED IN
1974 U.S.CODE CONG.&

AD.NEWS 5142.) AND, UNTIL REPEALED BY SECTION 414(A)(1)(A)(II) OF
PUB. L. NO. 95-454, 5 U.S.C. 5108(G) HAD PROVIDED:

IN ADDITION TO THE NUMBER OF POSITIONS AUTHORIZED BY SUBSECTION (A),
THE PENSION BENEFIT

GUARANTY CORPORATION IS AUTHORIZED, WITHOUT REGARD TO ANY OTHER
PROVISION OF THIS SECTION, TO

PLACE ONE POSITION IN THE CORPORATION AT GS-18 AND A TOTAL OF 10
POSITIONS IN THE CORPORATION

AT GS-16 AND 17. IF, AS THE UNION CONTENDS, THE AGENCY WERE NOT
SUBJECT TO THE GENERAL SCHEDULE, THE CONGRESSIONAL ACTION PERMITTING THE
AGENCY TO PLACE ADDITIONAL POSITIONS IN THE GENERAL SCHEDULE WOULD HAVE
BEEN WITHOUT LEGAL SIGNIFICANCE. THUS, THE RELEVANT LEGISLATIVE HISTORY
DEMONSTRATES THAT CONGRESS INTENDED THE AGENCY TO BE SUBJECT TO CHAPTERS
51 AND 53 OF TITLE 5, U.S. CODE AND, AT 5 U.S.C. 5108(G), ACTED
CONSISTENTLY WITH THAT INTENT.

FINALLY, THE UNION'S CLAIM THAT A LETTER FROM THE GENERAL ACCOUNTING
OFFICE (GAO) SUPPORTS ITS CONTENTION THAT 29 U.S.C. 1302(B)(6) EXCLUDES
THE AGENCY FROM THE PAY PROVISIONS OF CHAPTER 53 IS UNPERSUASIVE. THE
LETTER IN QUESTION, NUMBERED Z-2817882, SIGNED ON BEHALF OF THE DIRECTOR
OF GAO'S CLAIMS DIVISION, STATES THAT GAO IS WITHOUT JURISDICTION OR
AUTHORITY TO CONSIDER CLAIMS PRESENTED BY EMPLOYEES OF THE AGENCY. SUCH
A LETTER IS NOT A DECISION OF THE COMPTROLLER GENERAL AND IS WITHOUT
PRECEDENTIAL VALUE. 43 COMP.GEN. 788 (1964); B-193445, AUGUST 1, 1979.
ACCORDINGLY, THERE IS NO SUPPORT FOR THEUNION'S ARGUMENT THAT THE
AGENCY IS EXCLUDED FROM THE PAY PROVISIONS OF CHAPTER 53, TITLE 5, U.S.
CODE, BY 29 U.S.C. 1302(B)(6).

BASED UPON THE FOREGOING, THE AUTHORITY CONCLUDES THAT THE AGENCY IS
SUBJECT TO THE PROVISIONS OF 5 U.S.C. 5332 AND 5302 SETTING PAY RATES
FOR GENERAL SCHEDULE EMPLOYEES AND PRESCRIBING THE MEANS BY WHICH THOSE
RATES MAY BE ADJUSTED. SINCE THE UNION'S PROPOSAL THUS CONCERNS A
MATTER SPECIFICALLY PROVIDED FOR BY FEDERAL LAW, IT RELATES TO A MATTER
WHICH IS NOT A CONDITION OF EMPLOYMENT WITHIN THE MEANING OF SECTION
7103(A)(14)(C) OF THE STATUTE. ACCORDINGLY, THE PROPOSAL IS NOT WITHIN
THE DUTY TO BARGAIN. ISSUED, WASHINGTON, D.C., AUGUST 3, 1982

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

/1/ SECTION 7103(A)(14)(C) PROVIDES AS FOLLOWS:

SEC. 7103. DEFINITIONS; APPLICATION

(A) FOR THE PURPOSES OF THIS CHAPTER--

. . . .

(14) "CONDITIONS OF EMPLOYMENT" MEANS PERSONNEL POLICIES, PRACTICES,
AND MATTERS, WHETHER

ESTABLISHED BY RULE, REGULATION, OR OTHERWISE, AFFECTING WORKING
CONDITIONS, EXCEPT THAT SUCH

TERM DOES NOT INCLUDE POLICIES, PRACTICES, AND MATTERS--

. . . .

(C) TO THE EXTENT SUCH MATTERS ARE SPECIFICALLY PROVIDED FOR BY
FEDERAL STATUTE(.)

/2/ IN ITS DISCRETION UNDER 5 CFR 2424.8 AND 2429.26, THE AUTHORITY
PERMITTED THE AGENCY TO FILE A STATEMENT OF ITS POSITION MORE THAN 30
DAYS AFTER THE RECEIPT OF THE PETITION FOR REVIEW, SINCE INSOFAR AS
APPEARS FROM THE RECORD, THE UNION EXPRESSLY WAIVES OBJECTION TO SUCH
FILING.

/3/ STATEMENT OF REPRESENTATIVE UDALL AT 124 CONG.REC. 29182-83
(1978). SEE ALSO STATEMENT OF REPRESENTATIVE COLLINS AT 124 CONG.REC.
29174 (1978); AND THE AUTHORITY DECISION IN AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, COUNCIL OF FEDERAL GRAIN INSPECTION
LOCALS AND UNITED STATES DEPARTMENT OF AGRICULTURE, FEDERAL GRAIN
INSPECTION SERVICE, WASHINGTON, D.C., 3 FLRA 529 (1980), ENFORCED SUB
NOM. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, COUNCIL OF
FEDERAL GRAIN INSPECTION LOCALS V. FEDERAL LABOR RELATIONS AUTHORITY,
653 F.2D 669 (D.C. CIR. 1981).

/4/ 5 U.S.C. 5331.

/5/ 5 U.S.C. 5102(A)(1)(I) PROVIDES AS FOLLOWS:

SEC. 5102. DEFINITIONS; APPLICATION

(A) FOR THE PURPOSE OF THIS CHAPTER--

(1) "AGENCY" MEANS--

. . . .

BUT DOES NOT INCLUDE--

(I) A GOVERNMENT CONTROLLED CORPORATION (.)

/6/ 5 U.S.C. 5102(C)(14) PROVIDES AS FOLLOWS:

SEC. 5102. DEFINITIONS; APPLICATION

. . . .

(C) THIS CHAPTER DOES NOT APPLY TO--

. . . .

(14) EMPLOYEES WHOSE PAY IS NOT WHOLLY FROM APPROPRIATED FUNDS OF THE
UNITED STATES, EXCEPT

THAT WITH RESPECT TO THE VETERANS' CANTEEN SERVICE, VETERANS'
ADMINISTRATION, THIS PARAGRAPH

APPLIES ONLY TO EMPLOYEES NECESSARY FOR THE TRANSACTION OF THE
BUSINESS OF THE SERVICE AT

CANTEENS, WAREHOUSES, AND STORAGE DEPOTS WHOSE EMPLOYMENT IS
AUTHORIZED BY SECTION 4202 OF

TITLE 38(.)

/7/ THE UNION'S RESPONSE TO THE AGENCY'S STATEMENT OF POSITION
REFERRED TO THE EXCLUSION IN QUESTION AS 5 U.S.C. 5102(C)(15) WHICH
PROVIDES:

SEC. 5102. DEFINITIONS; APPLICATION

. . . .

(C) THIS CHAPTER DOES NOT APPLY TO--

. . . .

(15) EMPLOYEES WHOSE PAY IS FIXED UNDER A COOPERATIVE AGREEMENT
BETWEEN THE UNITED STATES

AND-

(A) A STATE OR TERRITORY OR POSSESSION OF THE UNITED STATES, OR
POLITICAL SUBDIVISION

THEREOF; OR

(B) AN INDIVIDUAL OR ORGANIZATION OUTSIDE THE SERVICE OF THE
GOVERNMENT OF THE UNITED

STATES(.) SINCE THE UNION'S ARGUMENT SUBSTANTIVELY ADDRESSES THE
QUESTION OF WHETHER THE AGENCY'S EMPLOYEES ARE PAID FROM APPROPRIATED
FUNDS, THE STATUTORY REFERENCE APPEARS TO BE IN ERROR. IN ANY EVENT,
THE PARTIES HAVE NOT ADVERTED TO ANY "COOPERATIVE AGREEMENT" WITHIN THE
MEANING OF SECTION 5102(C)(15), NOR DOES THE RECORD OTHERWISE PROVIDE
ANY BASIS FOR CONCLUDING THAT THE AGENCY IS EXCLUDED FROM THE
APPLICATION OF CHAPTERS 51 AND 53 OF TITLE 5, U.S. CODE, BY REASON OF
SECTION 5102(C)(15).

/8/ THE UNION CONTENDS THAT IN THIS DECISION, THE COMPTROLLER GENERAL
FOUND THAT WAGES AND COMPENSATION OF AGENCY EMPLOYEES COULD BE
NEGOTIATED BASED UPON "BROAD STATUTORY LANGUAGE CREATING" THE AGENCY.
THIS CONTENTION CANNOT BE SUSTAINED. RATHER, THE COMPTROLLER GENERAL'S
CONCLUSION THAT WAGES FOR PREVAILING RATE EMPLOYEES COULD BE NEGOTIATED
WAS NARROWLY BASED ON A FINDING THAT SUCH EMPLOYEES HISTORICALLY
NEGOTIATED THEIR WAGES AND THAT SUCH NEGOTIATIONS WERE PERMITTED TO
CONTINUE UNDER SECTION 9(B) OF PUB. L. NO. 92-392, REENACTED AS SECTION
704 OF THE CIVIL SERVICE REFORM ACT OF 1978, PUB. L. NO. 95-454, 92
STAT. 1218 (5 U.S.C. 5343 NOTE).