09:0692(82)NG - NTEU and Pension Benefit Guaranty Corporation -- 1982 FLRAdec NG



[ 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.  RATH