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BASIC LABOR POLICIES
(i) filing a charge with the National Labor Relations Board so as to permit the NLRB to seek injunctive relief in court;
(ii) recourse to the Frocedures of the Federal Mediation and Conciliation Service, or other available Government procedures; or
(iii) use of the National Joint Board for the Settlement of Jurisdictional Disputes, or other private Boards or organizations for the settlement of disputes.
(d) Strikes will normally result in changing patterns cf cost incurrence. Certain costs may actually increase because of a strike, e_guard services and fees paid to attorneys; other costs incurred during a strike may not fluctuate "fixed costs" such as rent and depreciation, but because of reduced production become a higher proportion of the unit cost of items produced. All costs incurred during a strike shall be carefully examined (i) so that acceptance of costs during a strike period sustains the Government's position of impartiality concerning the strike (see 12.101 (b)), and (ii) as to allowability, reasonableness, and allocability in accordance with Part 15, Subpart 2, to assure recognition of only those costs necessary for the performance of the contract in accordance with the Government's essential interest.
(e) The normal and regular functions of inspection at the plant of a military supplier, as required during the performance of a contract, shall be continued without regard to the existence at such plant of a labor dispute, strike, or picket line. Inspection should not be performed if there is reason to believe that the physical safety of the individual inspector may be endangered thereby. It is emphasized that inspection personnel in the discharge of their duties, consistent with the policy of 12.101 (b), shall refrain from taking or expressing a position upon the merits of any dispute between labor and private management. 12. 101-3 Labor-Management Disputes,
(a) Reports Reports of actual or incipient labormanagement disputes affecting NASA procurement, operations, or services shall be submitted as specified by the Director, Office of Industrial Relations. The se reports shall describe, but need not be limited to: incipient dispute, slow-down, shut
(1) the nature of the actual or including whether a strike, lockout, down, or picketing is involved, and the degree of emergency presented;
NASA PROCUREMENT REGULATION
(ii) the character, quantity, and importance of the supplies, operations, or services involved, including scheduled performance and delivery dates and the re laticn of the production involved to the total procurement program;
(iii) the identity and location of the parties to the dispute and their representatives, including the approximate number of employees involved;
(iv) the need for and availability of alternative facilities to furnish the items involved within the time required;
(v) the critical items, if any, which should be removed from the plant or work site ΟΙ should be continued to be processed there with the consent of the parties to the dispute; and
(vi) recommended action to be taken by NASA. Reports shall be made as early as possible and shall include immediately available information. Supplemental reports shall be made, as appropriate, to provide full information and cover new developments. Reports shall be sent by the most expeditious means required in view of the seriousness of the situation. When an immediate critical effect on NASA procurement is probable, the initial report shall be made by telephone and followed by an electrically transmitted message or a confirming letter.
(b) Other Action by the Contracting Officer. When a strike which may have an adverse effect on NASA programs is imminent or in progress at a prime or subcontractor's plant, contracting officers shall:
(i) advise both the prime contractor and the head of the union local in writing of the expected impact of the strike on NASA programs and, where appropriate, of the actions which NASA is considering to protect the Government's interest and prevent delay in the accomplishment of NASA's mission; however, if the strike is in a subcontractor's plant, the subcontractor will only be approached through the prime contractor;
(ii) explore the possibility of locating other sources for the supplies and services to have been provided by the struck or strike-threatened plant;
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BASIC LABOR POLICIES
(iii) consider removing finished items from the plant and seeking resumption of work by the contractor on those items to be furnished which are critical to NASA programs; and
(iv) where it appears likely that the work stoppage cannot be prevented, consider removing from the plant work in process, components, and materials which are critical to the NASA program, with a view to continuing the work elsewhere.
(c) NASA Headquarters Approval Required for Removal of Items from Affected Plants or Facilities. When the contracting officer determines that it would be in the best interest of the Government to remove items or to press for resumption of work as provided in (b) above, he shall first request approval from the Director, Office of Industrial Relations and then take such action as shall be approved.
(d) Inspection of Material During Labor Disputes. Despite the existence of a labor dispute, inspection functions at contract plants or sites shall be performed as normally required during contract performance except where the safety of the inspector may be endangered.
12.101-4 Admission of Labor Representatives to Contract Sites. NASA activities shall not prevent the access of labor union representatives to contract sites for the conduct of union business if their activities are compatible with performance of the contract work involved and applicable safety and security regulations.
12.102-1 Definitions. As used throughout this paragraph 12.102:
(a) Normal workweek and normal workday mean, generally, a workweek of 40 hours and a workday of 8 hours, respectively; provided, that in any area outside the United States, its possessions, and Puerto Rico, a workweek longer than 40 hours, or a workday longer than 8 hours, will be considered normal (i) if such workweek or workday does not exceed that which is normal for such area, as determined by local custom, tradition, or law and (ii) if hours worked in excess of 40 in such workweek, or 8 in such workday, are not compensated at a premium rate of pay.
(b) Overtime means time worked by a contractor's employee in excess of the employee's normal workweek or normal workday.
(c) Overtime premium means the difference between the contractor's regular rate of pay to an employee for the shift involved and the higer rate paid for overtime. It does not include shift premium which is the difference between the compensation paid to an employee at the contractor's regular rate of pay for the base shift and that paid at the regular rate of pay for extra-pay shift work.
12.102-2 Policy. It is the policy of NASA that all contracts will be performed, so far as practicable, without the use of overtime, particularly as a regular employment practice, except where lower overall costs to the Government will result. Contractors should utilize what ever work schedule results in the lowest overall cost to the Government consistent with contract delivery and performance requirements. Extra-pay shifts and multi-shift work should be scheduled, as required, to achieve these objectives. In the negotiation of contracts, overtime premiums will be recognized in establishing a fixed price or estimated cost only to the extent consistent with the needs of the Government for the supplies or services being procured.
12.102-3 Approval of Overtime Premiums.
(a) Approval of overtime premiums is required:
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(i) by the contracting officer under time and material and labor-hour contracts (see paragraph (a)(3) of the clause set forth in 7.901-6); and
(ii) by the approving official (see 12.102-4(e)), (A) prior to execution of cost reimbursement type contracts containing the clause set forth in 12.102-6, for any overtime to be included in paragraph (d) of the clause, and (B) prior to modification of such a contract for any increase in the overtime included in paragraph (d) of the clause.
(b) Approval of overtime premiums under contracts other than those referenced in (a) above shall not be required.
12.102-4 Approval of Overtime Premiums in Certain Cost-Reimbursement Type Contracts.
(a) To prevent uneconomic use of overtime, at Government expense, the clause set forth in 12.102-6 shall be included in all cost-reimbursement type contracts in excess of $100,000, except cost-reimbursement type contracts for the operation of vessels and cost-plus-incentive-fee contracts having a cost incentive which provides for a swing from target fee of at least plus or minus 3% and a contractor's share of cost of at least 10%. Whenever this clause is used, the procedural requirements of this 12.1024 shall be followed.
(b) An amount for overtime premiums at Government expense may be included in paragraph (d) of the clause set forth in 12.102-6 when the use of overtime has been approved by an official designated as provided in (e) below. Only overtime premiums for work in those departments, sections, etc., of the contractor's plant which have been individually evaluated and the necessity for overtime confirmed, will be considered for approval, and then only for overtime premiums not reimbursable under the exceptions contained in paragraph (a)(ii) of the clause. Approval may be granted when such official determines in writing that overtime is neces
(i) to meet delivery or performance schedules, and such schedules are determined to be consistent with essential program objectives;
(ii) to make up for delays beyond the control and without the fault or negligence of the contractor; or
(iii) to eliminate foreseeable production bottlenecks of an extended nature which cannot be eliminated in any other way.
(c) When, during negotiation, it becomes apparent that overtime will be required during the performance of the contract and the contract will contain the clause in 12.102-6, the contracting officer shall secure from the contractor a request substantially in accordance with the request procedures in paragraph (c) of such provision for all overtime to be used during the life of the contract, to the extent that it can be estimated with reasonable certainty. If the contemplated overtime premium could affect the costing of other work performed by the contractor or is significant in amount, the contracting officer may avail himself of the advisory services of the cognizant audit agency office to determine the proper accounting treatment of such premium. The contracting officer shall request from the appropriate official designated, as provided in (e) below, approval for overtime premiums at Government expense. Upon receipt of such approval, the contracting officer shall complete paragraph (d) of the clause. (d) During contract performance, requests for overtime, submitted pursuant to the clause in 12.102-6, will be submitted to the contracting officer who shall evaluate the need for such overtime and if he desires that
CFR TITLE 41 CHAPTER 18
BASIC LABOR POLICIES
the requested overtime be approved in whole or in part, shall, unless a prior authorization is sufficient to cover the overtime requested, request the approval of the appropriate official designated as provided in (e) below and, as expeditiously as possible, modify paragraph (d) of the clause to reflect the approval.
(e) The Procurement Officer or his designees are authorized to approve overtime premiums at Government expense. Such approval may be for an individual contract, project, or program, or for plant, division, or company, as most practicable, and shall ordinarily be prospective, but may be retroactive when justified by the circumstances. Where two or more procurement offices have current contracts at a single facility, and the approval of overtime by one procurement office will affect the performance or cost of contracts of another, the approving official will obtain the concurrence of other appropriate approving officials and seek agreement as to the contracts under which overtime premiums will be approved. If the approving officials do not agree within a reasonable time as to the action to be taken, a decision shall be obtained through normal channels. Ordinarily, in the absence of evidence to the contrary, a procurement office may rely on the contractor's statement that such approval will not affect the performance, or payments in connection with any contract of another procurement office. (For the purpose of this requirement, the term "or his designees" shall mean the individuals authorized by the Procurement Officer to approve overtime. Such authorization shall be in writing and shall not be delegated beyond the first level of supervision below the Procurement Officer.)
12.102-5 Contract Administration.
(a) The cost of overtime premiums under the clause set forth in 12.1026, and all overtime premiums under cost-reimbursement type contracts which do not contain the clause set forth in 12.102-6, shall be allowed only to the extent the amount thereof is reasonable and properly allocable to the work under the contract, in accordance with 15.201.
(b) In administration of contracts under which overtime has been approved pursuant to 12.102-4, the contracting officer and the cognizant audit activity shall review periodically the use of such overtime to assure that it is reasonable and properly allocable to work under the contract. 12.102-6 Payment of Overtime Premiums Clause. The following clause shall be used when required by 12.102-4 (a).
PAYMENT FOR OVERTIME PREMIUMS (AUGUST 1969)
(a) Allowable cost shall not include any amount on account of overtime premiums except when
(i) specified in (d) below or
(ii) paid for work: (A) necessary to cope with emergencies such as those resulting from accidents, natural disasters, breakdowns of production equipment, or occasional production bottlenecks of a sporadic nature;
(B) by indirect labor employees such as those performing duties in connection with administration, protection,transportation, maintenance, standby plant protection, operation of utilities, or accounting;
(C) in the performance of tests, industrial processes, laboratory procedures, loading or unloading of transportation media, and operations in flight or afloat, which are continuous in nature and cannot reasonably be interrupted or otherwise completed; or
(D) which will result in lower overall cost to the Government.
NASA PROCUREMENT REGULATION