41:0752(69)NG - U.S. NAVY, NAVAL BRANCH COMMISSARY STORE NAVAL SUBMARINE BASE NEW LONDON GROTON, CONNECTICUT -- 1991 FLRAdec NG



[ v41 p752 ]
41:0752(69)NG
The decision of the Authority follows:


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, "E