National Federation of Federal Employees, Local 1263 and Defense Language Institute, Presidio of Monterey, California (Authority decision, May 30, 1984)

Final FLRA decision. The Authority set aside the agency's disapproval of two negotiated contracting provisions and held a third provision outside the duty to bargain. An aggrieved person may seek judicial review of a final Authority order in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a).

Plain-English summary

NFFE Local 1263 appealed the Defense Language Institute's disapproval of three provisions in a negotiated agreement. The Authority found that union attendance at public pre-bid meetings and a procedure to challenge invalid in-house cost data did not interfere with management's contracting decisions. It ordered the agency to rescind its disapproval of those two provisions. The third provision would make the agreement effective on local execution, contrary to the statutory agency-head approval period, so the Authority dismissed the petition as to that provision. Other withdrawn or moot provisions were also dismissed without a merits ruling.

Decision snapshot

• Authority: Contracting rights under 5 U.S.C. § 7106(a)(2)(B) and agreement approval under § 7114(c).
• Outcome: Disapproval of Provisions 1 and 2 rescinded; Provision 3 held nonnegotiable.
• Key point: Public bid meeting access and cost-data checks were negotiable; an agreement could not take effect before statutory agency-head review.

Full text (FLRA public release)

[ v14 p761 ]

14:0761(101)NG

The decision of the Authority follows:

14 FLRA No. 101

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1263
Union

and

DEFENSE LANGUAGE INSTITUTE,
PRESIDIO OF MONTEREY, CALIFORNIA
Agency

Case No. O-NG-745

DECISION AND ORDER ON NEGOTIABILITY ISSUES

The petition for review in this case comes before the Authority pursuant to section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and presents issues concerning the negotiability of three provisions of a negotiated agreement disapproved by the Agency pursuant to section 7114(c) of the Statute. /1/ Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations. /2/

Union Provision 1

Article 30, Section 2:

When the decision is to proceed with a proposal, the Employer will continually apprise the Union of the status of the proposal. The Union will be furnished a copy of each specification and contract at the same time invitations for bids are mailed to bidders. Also, the Union shall be furnished dates and times of pre-bid and bid opening conferences and shall have the right to have a union representative present at the conferences. (Only the underscored portion is in dispute.)

The Agency contends that Union Provision 1 is substantially identical to Union Proposal 3 which was found to be nonnegotiable in National Federation of Federal Employees, Local 1167 and Department of the Air Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air Force Base, Florida, 6 FLRA 574 (1981), affirmed sub nom. National Federation of Federal Employees v. Federal Labor Relations Authority, 681 F.2d 886 (D.C. Cir. 1982). That proposal, like the one at issue in the present case, required the union to be notified of certain pre-bid and bid opening conferences and be permitted to have representatives at such conferences. Based on the record before it in that case the Authority found the proposal to be inconsistent with management's right pursuant to section 7106(a)(2)(B) of the Statute "to make determinations with respect to contracting out." Specifically, the Authority relied upon the agency's uncontroverted claim that the pre-bid and bid opening conferences referred to in the union's proposal were "wholly management related meetings at which the management aspects of the contracting out issue are either discussed or acted on." Thus, the Authority concluded, in that case, such involvement of the exclusive representative in those sessions where agency officials are engaged in management deliberation and discussion as part of their decision-making process would directly interfere with management's right to make determinations with respect to contracting out.

However, based on the record in the present case we must reach a different result. That is, the record in this case indicates that the pre-bid and bid opening conferences involved in Union Provision 1 are not wholly management related meetings, but are informal meetings open to any member of the general public who wants to gather information about the bidding process and the contract in question. The record does not establish that allowing the Union an opportunity to be present at these informational meetings which are open to the general public (as contrasted with the "wholly management related meetings" at issue in the Homestead Air Force Base case) will interfere with management's right pursuant to the Statute to make determinations with respect to contracting out. Therefore, as the Agency has not established that Provision 1 would interfere with management's rights under the Statute, it is within the Agency's obligation to bargain. /3/

Union Provision 2

Article 30, Section 2D:

Subsequent to opening of the bid and before a contract is awarded, the Union shall be provided all data concerning the "in-house" estimate of cost of the work to be performed. The Union will be given ten (10) workdays, which may be extended upon request, to review the "in-house" estimate and other pertinent data and to comment on and/or challenge the validity of the data. "All data will be corrected where the Union demonstrates that it is not valid or prepared in accordance with existing directives." (Only the underscored portion is in dispute.)

In agreement with the Union, the Authority finds that Union Provision 2 is not inconsistent either with management's right pursuant to section 7106(a)(2)(B) of the Statute "to make determinations with respect to contracting out" or with OMB Circular A-76 as claimed by the Agency. This provision would not establish, either expressly or by incorporation, any particular limitation on management's right to make contracting out determinations. Rather, the provision only would provide a contractual procedure to assure that the data upon which a contracting out determination will be based is valid and prepared in accordance with existing external limitations on management's right, including OMB Circular A-76. Thus, this provision is not inconsistent with section 7106(a)(2)(B) of the Statute. See American Federation of Government Employees, AFL-CIO, National Council of EEO Locals and Equal Employment Opportunity Commission, 10 FLRA No. 1 (1982) (Union Proposal 1), appeal docketed, No. 82-2310 (D.C. Cir. Nov. 1, 1982).

Further, this provision is not concerned with the administrative appeal procedure established by OMB Circular A-76 whereby all directly affected parties to a contracting out determination, including Federal employees and their unions, bidders and offerors, may appeal cost comparison decisions. Instead, the record indicates that this provision is intended to establish a separate procedure, preliminary to the OMB Circular A-76 appeal procedure, for the Union, on behalf of employees who would be adversely affected by a decision to contract out, to challenge the cost data upon which the contracting out determination will be based. After completion of the negotiated procedure, the Union, as well as any directly affected party within the meaning of OMB Circular A-76, could utilize the A-76 administrative appeal procedure. Consequently, Union Provision 2 is within the duty to bargain under the Statute. /4/

Union Provision 3

Article 21, Section 1:

This agreement and any subsequent amendments and supplements thereto shall become effective on the date of approval by the Parties. This approval shall be subject to timely higher headquarters post audit review of the Agreement to assure conformance with applicable laws, executive orders, and regulations of appropriate authority. If not approved by the headquarters, those changes that are necessary will be returned to the Parties for renegotiations. (Only that portion underscored is in dispute.)

Section 7114(c) of the Statute specifically provides that an agency head has 30 days to approve or disapprove a collective bargaining agreement executed at the level of recognition. /5/ In the absence of such approval or disapproval within the 30-day period, the agreement becomes effective on the 31st day and is binding on the parties thereafter, subject to the provisions of the Statute and any other applicable law, rule, or regulation. E.g., National Federation of Federal Employees, Local 1862 and Department of Health, Education and Welfare, Public Health Service, Indian Health Service, Phoenix, Arizona, 3 FLRA 181 (1980). Union Provision 3, however, by establishing the date of execution as the effective date of the agreement, instead of either the date the Agency head approves the contract or the 31st day, whichever comes first, as provided in Section 7114(c) of the Statute is inconsistent with that section. Therefore, Union Provision 3 is outside the duty to bargain.

Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the petition for review relating to the two provisions concerning which the Agency withdrew its allegations of nonnegotiability and to Union Provision 3 be, and it hereby is, dismissed. IT IS FURTHER ORDERED that the Agency shall rescind its disapproval of Union Provisions 1 and 2 which were bargained on and agreed to by the parties at the local level. Issued, Washington, D.C., May 30, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY

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

/1/ During the pendency of this case, the Union withdrew portions of its petition as to six provisions. The issues as to these six provisions will not be considered further herein. The Agency withdrew its allegations of nonnegotiability with respect to two other provisions of the negotiated agreement. The issues as to these two provisions, therefore, have been rendered moot and will not be considered further herein.

/2/ The Union's contention that the disputed contract provisions have gone into effect because the Agency head did not serve his disapproval on the Union within the 30-day time period established in section 7114(c) cannot be sustained. The record indicates that the agreement was executed by the parties on August 10, 1982, and the Agency head's disapproval was served on the Union in accordance with section 2429.27(d) of the Authority's Rules and Regulations, i.e., deposited in the mail on September 8, 1982, or within the 30-day period established in section 7114(c). Consequently, the Agency head's disapproval was timely.

/3/ In finding Union Provision 1 to be negotiable, the Authority makes no judgment as to its merits.

/4/ In finding Union Provision 2 to be negotiable, the Authority makes no judgment as to its merits.

/5/ Section 7114(c) of the Statute provides, in relevant part:

Sec. 7114. Representation rights and duties

. . . .

(c)(1) An agreement between any agency and an exclusive representative shall be subject to approval by the head of the agency.

(2) The head of the agency shall approve the agreement within 30 days from the date the agreement is executed if the agreement is in accordance with the provisions of this chapter and any other applicable law, rule, or regulation (unless the agency has granted an exception to the provision).

(3) If the head of the agency does not approve or disapprove the agreement within the 30-day period, the agreement shall take effect and shall be binding on the agency and the exclusive representative subject to the provisions of this chapter and any other applicable law, rule, or regulation. . . .