B-171391, JUN 8, 1971

B-171391: Jun 8, 1971

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IS THE APPROPRIATE BARGAINING REPRESENTATIVE FOR THE NON-SUPERVISORY EMPLOYEES UNDER THE BOEING CONTRACT AND WHETHER BOEING. IS BOUND BY THE AGREEMENT EXECUTED BY LOCAL 773 AND TWA IS A MATTER FOR DETERMINATION BY THE NATIONAL LABOR RELATIONS BOARD. THERE IS NO BASIS ON WHICH TO DISAGREE WITH NASA'S POSITION IN MAKING AWARD TO BOEING. THE PROCUREMENT SOLICITATION WAS REQUEST FOR PROPOSALS (RFP) 2-370-0. IS NOT SUPPORTED BY FIRM AGREEMENTS WITH THE APPROPRIATE UNIONS PROVIDING COVERAGE FOR THE WORK TO BE PERFORMED UNDER THE PROPOSED CONTRACT. WHO WAS THE PREVIOUS CONTRACTOR. YOU ARE PARTICULARLY CONCERNED WITH THE ACCEPTANCE BY NASA OF A COLLECTIVE BARGAINING AGREEMENT OF OCTOBER 2. AS ADEQUATE COVERAGE FOR MECHANICS WHO WILL CONSTITUTE THE GREATEST PART OF THE WORK FORCE UNDER THE CONTRACT.

B-171391, JUN 8, 1971

BID PROTEST - LABOR AGREEMENT - NLRB DECISION DENYING PROTEST AGAINST AWARD OF A CONTRACT TO THE BOEING COMPANY FOR INSTALLATION SUPPORT SERVICES AT KENNEDY SPACE CENTER UNDER AN RFP ISSUED BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION. WHETHER PROTESTANT'S LOCAL 773, WITH WHOM TWA DEALT ON THE PREVIOUS CONTRACT FOR SUPPORT SERVICES AT KENNEDY SPACE CENTER, IS THE APPROPRIATE BARGAINING REPRESENTATIVE FOR THE NON-SUPERVISORY EMPLOYEES UNDER THE BOEING CONTRACT AND WHETHER BOEING, AS SUCCESSOR TO TWA, IS BOUND BY THE AGREEMENT EXECUTED BY LOCAL 773 AND TWA IS A MATTER FOR DETERMINATION BY THE NATIONAL LABOR RELATIONS BOARD, AND ABSENT SUCH A DETERMINATION UPHOLDING PROTESTANT'S CONTENTION, THERE IS NO BASIS ON WHICH TO DISAGREE WITH NASA'S POSITION IN MAKING AWARD TO BOEING.

TO INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS:

WE REFER TO YOUR PROTEST BY TELEGRAM OF MARCH 1, 1971, AS SUPPLEMENTED BY SUBSEQUENT CORRESPONDENCE FROM YOUR ATTORNEY, AGAINST AWARD BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA) OF A CONTRACT TO THE BOEING COMPANY (BOEING) FOR PERFORMANCE OF INSTALLATION SUPPORT SERVICES AT KENNEDY SPACE CENTER (KSC). THE PROCUREMENT SOLICITATION WAS REQUEST FOR PROPOSALS (RFP) 2-370-0, DATED JUNE 30, 1970.

SPECIFICALLY, YOU CHARGE THAT THE AWARD TO BOEING ON MARCH 11, 1971, IS NOT SUPPORTED BY FIRM AGREEMENTS WITH THE APPROPRIATE UNIONS PROVIDING COVERAGE FOR THE WORK TO BE PERFORMED UNDER THE PROPOSED CONTRACT, AS CONTEMPLATED BY OUR DECISION B-171391, FEBRUARY 26, 1971, WHICH DENIED THE PROTEST OF A COMPETING OFFEROR, TRANS WORLD AIRLINES, INC. (TWA), WHO WAS THE PREVIOUS CONTRACTOR, AGAINST THE SELECTION OF BOEING FOR NEGOTIATION OF THE CONTRACT IN QUESTION. AS DISCUSSED BELOW, YOU ARE PARTICULARLY CONCERNED WITH THE ACCEPTANCE BY NASA OF A COLLECTIVE BARGAINING AGREEMENT OF OCTOBER 2, 1968, BETWEEN BOEING AND LOCAL LODGE 2061 OF DISTRICT LODGE 156 OF YOUR UNION, AS ADEQUATE COVERAGE FOR MECHANICS WHO WILL CONSTITUTE THE GREATEST PART OF THE WORK FORCE UNDER THE CONTRACT.

IN THE SOLICITATION OF COMPETITIVE PROPOSALS ON THIS PROCUREMENT, NASA INFORMED PROSPECTIVE OFFERORS THAT TWA, THE INCUMBENT CONTRACTOR, HAD A COLLECTIVE BARGAINING AGREEMENT COVERING ITS KSC MECHANICS WITH LOCAL LODGE 773 OF DISTRICT LODGE 142 OF YOUR UNION, WHICH IS EFFECTIVE THROUGH DECEMBER 31, 1971. OFFERORS WERE ALSO INFORMED OF THE "SUCCESSOR EMPLOYER" DOCTRINE APPLIED BY THE NATIONAL LABOR RELATIONS BOARD (NLRB) IN CERTAIN CASES TO BIND A FOLLOW-ON CONTRACTOR TO THE TERMS OF A PREDECESSOR CONTRACTOR'S COLLECTIVE BARGAINING AGREEMENTS WITH EMPLOYEE UNIONS, BUT NASA LEFT THE DETERMINATION WHETHER TWA'S AGREEMENTS WOULD BE BINDING IN THIS CASE TO EACH OFFEROR.

BOEING, WHO WAS ONE OF SEVEN COMPETITORS FOR THE CONTRACT, SUBMITTED A PROPOSAL SUBSTANTIALLY LOWER IN PRICE THAN TWA'S PROPOSAL, THE DIFFERENTIAL BEING ATTRIBUTABLE ALMOST ENTIRELY TO THE PROPOSED PAYMENT BY BOEING OF LOWER WAGE RATES TO THE MECHANICS THAN THE WAGE RATES APPLICABLE UNDER TWA'S UNION AGREEMENT. BOEING BASED ITS WAGES ON ITS OWN UNION AGREEMENT, WHICH IT INTENDS TO APPLY TO TWA INCUMBENT EMPLOYEES, AS WELL AS SUCH OTHER EMPLOYEES AS MAY WORK FOR BOEING UNDER THE CONTRACT.

IN OUR DECISION TO TWA, WE STATED THAT WE WERE NOT AWARE OF ANY STATUTE OR AUTHORITATIVE DETERMINATION BY NLRB OR THE COURTS WHICH WOULD REQUIRE A FOLLOW-ON CONTRACTOR PERFORMING SERVICES FOR THE GOVERNMENT AT A GOVERNMENT INSTALLATION TO ABIDE BY THE TERMS OF THE PREDECESSOR CONTRACTOR'S EMPLOYEE UNION BARGAINING AGREEMENTS. WE THEREFORE CONCLUDED THAT BOEING'S PROPOSAL, WHEN SUPPORTED BY FIRM UNION WAGE AGREEMENTS PROVIDING COVERAGE FOR THE WORK TO BE PERFORMED UNDER THE CONTRACT, MIGHT PROPERLY BE CONSIDERED REASONABLE AS TO COST. WE FURTHER STATED THAT ON THE RECORD BEFORE US WE WERE UNABLE TO CONCLUDE THAT THE SELECTION OF BOEING FOR AWARD UNDER SUCH CONDITIONS WAS OTHER THAN A VALID EXERCISE OF THE DISCRETION GRANTED TO NASA, AS THE CONTRACTING AGENCY, TO MAKE THE AWARD WHICH WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT AS CONTEMPLATED BY THE PROVISIONS OF NASA PR 3-805.2.

YOU STATE THAT BOEING DOES NOT HAVE A FIRM SUPPORTING COLLECTIVE BARGAINING AGREEMENT WITH YOUR UNION PROVIDING COVERAGE FOR THE KSC EMPLOYEES. IN THIS CONNECTION, YOU STATE THAT BOEING'S AGREEMENT WITH YOUR UNION COVERING ITS KSC EMPLOYEES RELATES ONLY TO EMPLOYEES ENGAGED IN LAUNCH SUPPORT SERVICES WORK. YOU DISPUTE BOEING'S POSITION THAT FORMER TWA EMPLOYEES MAY BE COVERED BY THE SAME AGREEMENT AS AN "ACCRETION" THERETO, AND THUS PRECLUDE APPLICATION OF TWA'S AGREEMENT UNDER THE "SUCCESSOR EMPLOYER" DOCTRINE. YOU FURTHER STATE THAT SINCE BOEING'S 1968 AGREEMENT WAS KNOWN TO NASA AT THE TIME OUR DECISION WAS ISSUED, IT CANNOT BE THE FIRM AGREEMENT CONTEMPLATED BY NASA AS A REQUISITE TO NEGOTIATION; OTHERWISE, NASA WOULD HAVE REFERRED TO THE AGREEMENT AS AN EXISTING AGREEMENT. YOU THEREFORE MAINTAIN THAT NASA'S ACTION IN EXECUTING A CONTRACT WITH BOEING, SUPPORTED ONLY BY THE 1968 AGREEMENT WITH YOUR UNION, WAS NOT IN KEEPING WITH OUR DECISION OF FEBRUARY 26, 1971.

IN ADDITION TO THE ABOVE, YOUR ATTORNEY HAS PROVIDED OUR OFFICE WITH A COPY OF A PETITION FILED BY YOU ON APRIL 1, 1971, WITH NLRB, CHARGING THAT BOEING IS ENGAGING IN UNFAIR LABOR PRACTICES IN VIOLATION OF THE NATIONAL LABOR RELATIONS ACT BY REASON OF ITS REFUSAL TO RECOGNIZE YOUR UNION AS REPRESENTATIVE OF NONSUPERVISORY EMPLOYEES PERFORMING BASE SUPPORT SERVICES WORK FOR BOEING UNDER ITS KSC CONTRACT; OF ITS REFUSAL TO ABIDE BY THE TERMS OF TWA'S AGREEMENT WITH YOUR UNION COVERING SUCH EMPLOYEES; AND OF ITS REFUSAL TO EMPLOY AT LEAST 625 FORMER TWA EMPLOYEES UNDER THE CONTRACT.

THE RECORD SHOWS THAT ON MARCH 1, 1971, TWA FILED A MOTION IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, CIVIL ACTION 452-71, SEEKING A PRELIMINARY INJUNCTION AGAINST AWARD TO BOEING AND THAT BY MOTION FILED BY YOU ON MARCH 2, 1971, YOU SOUGHT TO INTERVENE, IN OPPOSITION TO THE GOVERNMENT, IN SUCH ACTION. THE RECORD FURTHER SHOWS THAT ON MARCH 9 THE COURT DENIED YOUR MOTION TO INTERVENE, AND ON MARCH 10 THE COURT DENIED TWA'S MOTION FOR A PRELIMINARY INJUNCTION.

THE CONTRACT AWARD TO BOEING ON MARCH 11 FOLLOWED A MEETING ON THE SAME DATE OF THE ACTING ADMINISTRATOR OF NASA AND TWO OTHER SENIOR NASA OFFICIALS WITH NASA KEY PERSONNEL, INCLUDING THE SOURCE EVALUATION BOARD APPOINTED FOR THIS PROCUREMENT. AT THE MEETING, BOEING'S 1968 AGREEMENT WITH YOUR LOCAL 2061 WAS DISCUSSED, AND IT WAS NOTED THAT THE AGREEMENT PROVIDES FOR LOCAL 2061 TO REPRESENT "ALL PRODUCTION AND MAINTENANCE EMPLOYEES IN BREVARD COUNTY IN THE STATE OF FLORIDA, EMPLOYED BY THE COMPANY, WHO ARE NOT ON TEMPORARY ASSIGNMENT FROM A PRIMARY LOCATION OTHER THAN ATLANTIC MISSILE TEST SECTION." IT WAS FURTHER OBSERVED THAT WAGES FOR THE PERIOD AFTER OCTOBER 1, 1971, THE EXPIRATION DATE OF THE AGREEMENT, WOULD HAVE TO BE DETERMINED IN FUTURE NEGOTIATIONS BETWEEN BOEING AND YOUR UNION.

THE SOURCE EVALUATION BOARD REPORTED THAT AS OF MARCH 10, BOEING AND ITS SUBCONTRACTOR, DYNAMIC ENTERPRISES, HAD HIRED 1,516 OF THE 1,961 PEOPLE NEEDED TO MAN THE JOB; THAT NO DIFFICULTIES IN RECRUITING PERSONNEL WERE ANTICIPATED IN VIEW OF THE LARGE NUMBER OF APPLICATIONS TO BOEING FOR POSITIONS; AND THAT OF THE HOURLY EMPLOYEES HIRED APPROXIMATELY A QUARTER OF THE NUMBER WERE INCUMBENT TWA EMPLOYEES.

NASA'S LEGAL STAFF EXPRESSED THE OPINION (BASED ON EXAMINATION OF THE AFOREMENTIONED AGREEMENT, THE PRIOR HISTORY OF BOEING'S RELATIONSHIP WITH YOUR UNION SHOWING ACCRETION OF MANY EMPLOYEES AFTER THE AGREEMENT HAD BEEN EXECUTED, AND CONSIDERATION OF RELEVANT COURT AND NLRB OPINIONS, AS WELL AS YOUR ARGUMENTS), THAT BOEING'S AGREEMENT WITH YOUR LOCAL 2061 IS THE APPLICABLE COLLECTIVE BARGAINING AGREEMENT COVERING THE EMPLOYEES TO BE HIRED BY BOEING TO PERFORM THE WORK AT KSC. NASA'S DIRECTOR OF INDUSTRIAL RELATIONS CONCURRED WITH THE OPINION OF THE LEGAL STAFF AND STATED THAT THE ACTIONS TAKEN BY BOEING TO STAFF THE JOBS WERE REALISTIC AND WOULD SUCCEED IN PROVIDING SUFFICIENT QUALIFIED PERSONNEL AT THE WAGE AND SALARY LEVELS CONTEMPLATED.

IN OUR DECISION OF FEBRUARY 26 WE DID NOT STATE THAT BOEING'S 1968 AGREEMENT WITH YOUR LOCAL 2061 COULD NOT BE REGARDED BY NASA AS ADEQUATE SUPPORT FOR BOEING'S PROPOSAL. RATHER, AS WE POINTED OUT IN THE PENULTIMATE PARAGRAPH OF OUR DECISION, THE AWARD OF COST REIMBURSEMENT CONTRACTS REQUIRES EXERCISE BY PROCUREMENT PERSONNEL OF INFORMED JUDGMENTS WHETHER SUBMITTED PROPOSALS ARE REALISTIC AS TO PROPOSED COSTS AS WELL AS TO TECHNICAL APPROACH, AND SUCH JUDGMENT SHOULD PROPERLY BE LEFT TO THE CONTRACTING AGENCIES CONCERNED SINCE THEY ARE IN THE BEST POSITION TO ASSESS "REALISM" OF COSTS AND TECHNICAL APPROACHES AND MUST BEAR THE MAJOR CRITICISM FOR ANY DIFFICULTIES OR EXPENSES EXPERIENCED BY REASON OF A DEFECTIVE COST ANALYSIS.

BASED ON THE INFORMATION OF RECORD AS TO THE CONSIDERATION WHICH NASA GAVE TO BOEING'S 1968 AGREEMENT AND OTHER INFORMATION IN REACHING ITS DECISION THAT THE AGREEMENT IS SUFFICIENT FOR THE PURPOSE OF THE CONTRACT IN QUESTION, WE ARE UNABLE TO VIEW NASA'S DECISION AS OTHER THAN A PROPER EXERCISE OF SUCH JUDGMENT. ACCORDINGLY, WE DO NOT CONCUR WITH YOUR VIEW THAT NASA'S ACTION IS IN CONFLICT WITH OUR DECISION, THEREBY WARRANTING DISAPPROVAL BY OUR OFFICE OF THE AWARD TO BOEING.

UNDER THE NATIONAL LABOR RELATIONS ACT, 29 U.S.C. 151 ET SEQ., THE NLRB NOT ONLY HAS AUTHORITY TO HEAR AND ISSUE ORDERS RELATING TO CHARGES OF UNFAIR LABOR PRACTICES UNDER THE ACT BUT ALSO HAS AUTHORITY TO DETERMINE THE APPROPRIATE UNIT TO REPRESENT EMPLOYEES FOR COLLECTIVE BARGAINING PURPOSES. IT WOULD APPEAR, THEREFORE, THAT THE PROCEEDINGS WHICH YOU HAVE INSTITUTED WITH NLRB CHARGING BOEING WITH UNFAIR LABOR PRACTICES IN VIOLATION OF THE ACT MAY WELL RESOLVE YOUR BASIC COMPLAINTS, THAT IS, WHETHER YOUR LOCAL 773 WITH WHOM TWA DEALT IS THE APPROPRIATE BARGAINING REPRESENTATIVE FOR THE NONSUPERVISORY EMPLOYEES AT KSC UNDER BOEING'S CONTRACT, AND WHETHER BOEING, AS SUCCESSOR TO TWA, IS BOUND BY THE AGREEMENT EXECUTED BY YOUR LOCAL 773 AND TWA. HOWEVER, IN THE ABSENCE OF SUCH A DETERMINATION UPHOLDING THE POSITION FOR WHICH YOU CONTEND, WE SEE NO VALID BASIS ON WHICH TO DISAGREE WITH NASA'S POSITION.

FOR THE REASONS STATED, YOUR PROTEST IS DENIED.

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