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41 FLRA NO. 69
41 FLRA 752

  19 JUL 1991

         NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
                         LOCAL R1-100
                       (Charging Party)

                              and

                  U.S. DEPARTMENT OF THE NAVY
                 NAVAL BRANCH COMMISSARY STORE
                NAVAL SUBMARINE BASE NEW LONDON
                      GROTON, CONNECTICUT
                            (Agency)

                           0-NG-1938

ORDER DISMISSING PETITION FOR REVIEW

     On June 17, 1991, the Authority issued an Order directing
the Union to show cause why its petition for review in the
above-captioned case should not be dismissed as untimely. For the
reasons set out below, the Union's petition for review must be
dismissed.

     The record in this case indicates that on January 31, 1991,
in response to the Union's request dated January 30,  1991, the
Agency alleged in writing that two proposals from the Union
concerning commissary shopping privileges were nonnegotiable. The
Union did not appeal the Agency's allegation to the Authority. On
May 8, 1991, the Union resubmitted its proposals and a request
for an allegation of nonnegotiability to the Agency. On May 15,
1991, the Agency representative responded in writing that he
could not "find any discernible changes from the original
proposal", and, therefore, could "find no basis to alter the
Agency's (January 31, 1991), response." On June 17, 1991, the
Authority directed the Union to file with the Authority any
information it may have that shows that the Union's May 8, 1991
proposals were substantively changed from its January 30,  1991,
proposals, or that the Agency served its January 31, 1991,
allegation of nonnegotiability on the Union after May 1, 1991.


     The Union, in its response 1 to the June 17, 1991, Order to
show cause argues that the "agency never alleged the issues were
non-negotiable" and that "(n)o notice of nonnegotiability was
ever ... served."

     The Authority's Regulations define an agency allegation of
nonnegotiability as an assertion that "the duty to bargain in
good faith does not extend to any matter proposed to be bargained
because, as proposed, the matter is inconsistent with law, rule
or regulation(.)" 5 C.F.R. 2424.1. See also 5 U.S.C. 7117(a)(1)
and (c)(1). On January 31, 1991, in response to the Union's
request dated January 30,  1991, for the Agency to explain in
writing any allegation of nonnegotiability, the Agency referenced
"DOD Directive 1330.17, Armed Services Commissary Store
Regulations," and stated that, "Extending commissary privileges
to DOD civilian personnel is not within Employer discretion, and
therefore, inappropriate for consultation or negotiation."

     Assuming that the Agency's January 31, 1991, response is an
allegation of nonnegotiability, the Union's response does not
provide documentation to show that the proposals it submitted to
the Agency on May 8th, were substantively changed from those
addressed in the Agency's January 31st letter.

     Where a petition for review concerns a dispute as to a
proposal that has not been substantially changed from a proposal
previously alleged to be nonnegotiable, the effect of the
petition is to seek review of the previous allegation. See
American Federation of Government Employees, AFL - CIO, Local
2303 v. FLRA,  815 F.2d 718 (D.C. Cir. 1987). In this case, the
proposals contained in the Union's May 8, 1991, petition for
review are substantively identical to its January 30,  1991,
proposals.

     The Authority's Regulations provide that a petition for
review of negotiability issues must be filed with the Authority
within 15 days after service on the Union of the Agency's
allegation of nonnegotiability. 5 C.F.R. 2424.3. The
date of service is the date the allegation is deposited in the
U.S. mail or is delivered in person. 5 C.F.R. 2429.27(d). If the
allegation is served by mail, 5 days are added to the 15-day
period for filing the petition for review. 5 C.F.R. 2429.22. The
time limit may not be extended or waived by the Authority.

     Presuming that the Agency's January 31 allegation of
nonnegotiability was deposited in the U.S. mail on that date, a
petition for review of negotiability issues had to be either
postmarked by the U.S. Postal Service or received in person at
the Authority's Docket Room no later than February 20, 1991, in
order to be considered timely. 5 C.F.R. 2424.3, 2429.21(b) and
2429.22. The Union's petition for review was filed (postmarked)
with the Authority's Docket Room on May 22, 1991.

     The Union's petition for review in this case essentially
seeks review of the Agency's January 31, 1991, allegation of
nonnegotiability. The petition was filed more than 15 days from
the date of that allegation of nonnegotiability and is therefore
untimely under the time limits set forth in section 2424.3 of our
Regulations.

     Accordingly, the Union's petition for review is dismissed.

For the Authority.

Alicia N. Columna
Director, Case Control Office

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