14:0761(101)NG - NFFE Local 1263 and Defense Language Institute, Presidio of Monterey, CA -- 1984 FLRAdec NG

 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. . . .