National Association of Government Employees, Local R1-100 and U.S. Department of the Navy, Naval Branch Commissary Store, Naval Submarine Base New London (Authority decision, July 19, 1991)

Final FLRA decision. The Authority dismisses the union's petition to review a nonnegotiability allegation concerning civilian commissary shopping privileges because the petition was untimely. An aggrieved person may seek judicial review by petitioning an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the order unless the court orders a stay under § 7123(c).

Plain-English summary

The union proposed extending commissary shopping privileges to Defense Department civilian employees. The Navy responded in writing on January 31 that the proposal was beyond its discretion to bargain. The union submitted the same proposal again in May and petitioned the Authority after the Navy repeated its position. The Authority found no substantive change to the proposal, so the later request did not restart the filing clock. Because the petition was filed in May, after the February deadline for challenging the January allegation, the Authority dismissed it without deciding whether the proposal was negotiable.

Decision snapshot

• Authority: Negotiability petition deadline under 5 C.F.R. § 2424.3 and 5 U.S.C. § 7117.
• Outcome: Petition for review dismissed as untimely.
• Key point: Resubmitting the same proposal does not reopen the deadline to challenge an earlier nonnegotiability allegation.

Full text (FLRA public release)

[ 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, "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