42 FLRA NO. 58

              AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
                     NATIONAL BORDER PATROL COUNCIL
                                 (Union)

                                  and

                       U.S. DEPARTMENT OF JUSTICE
                 IMMIGRATION AND NATURALIZATION SERVICE
                                (Agency)

                               0-NG-1967

               ORDER DISMISSING PETITION FOR REVIEW

                            October 11, 1991

     The Union has filed a petition for review of a negotiability
issue in the above-captioned case which involves a "ground rule
proposal concerning the site at which negotiations over changes
in conditions of employment proposed by the Agency would be
conducted." Petition for Review at 1. The Agency has filed a
statement of position and the Union has filed a response. For the
reasons set out below, the Union's petition must be dismissed.

     The Agency asserts that it "does not now, and never has,
taken the position that the Union's proposal as to the locus of
bargaining 'is inconsistent with law, rule or regulation,'...."
Statement of Position at 2. Moreover, the Agency states that
"(e)ven if .... the Union could have demonstrated that at some
time in the past the (Agency) had declared that this specific
proposal was 'inconsistent with law, rule or regulation,' the
(Agency) ... withdraws any such declaration." Id. at 3. Rather,
the Agency claims that, in its response to the Union's request
for a declaration of nonnegotiability, it stated only that as
"there was no ongoing bargaining, (over the claimed change in
conditions of employment) it had no obligation to bargain on
ground rules ... (concerning) where the bargaining would take
place." Id. at 5. Consequently, the Agency concludes that
as it has not determined that the Union's proposal is
inconsistent with law, rule or regulation, the Authority should
dismiss the Union's petition for review.

     The Union disputes the Agency's claim that the Agency did
not declare the Union's proposal nonnegotiable. According to the
Union, the record establishes that "the Agency clearly alleged
that all aspects of the Union's proposals were nonnegotiable."
Response at 4. The Union claims, therefore, that the Agency's
allegation of nonnegotiability concerning substantive matters "is
necessarily an allegation that the duty to bargain did not extend
to the Union's ground rule proposal." Id. at 4. The union argues
further, that notwithstanding the Agency's withdrawal of its
allegation of nonnegotiability "the instant appeal should not be
dismissed, as the time for filing an unfair labor practice charge
over the initial refusal to bargain has lapsed." Id. at 5.
Although the Union states that "it was not prejudiced in the
instant circumstance, as an unfair labor practice charge was
filed in a timely manner(,)" the Union contends that dismissing
its appeal would encourage "agencies to submit frivolous claims
of nonnegotiability with the intent of withdrawing such claims
after the expiration of the time limit for filing unfair labor
practice charges over the concurrent failure to bargain." Id.
(footnote omitted). The Union claims that as a result, unions
would be forced "to file unfair labor practice charges in all
instances as a protective measure, needlessly burdening the
system and all involved parties." Id.  */   Consequently, the Union
requests the Authority to find that the Union's proposal is
negotiable.

     The Authority will consider a petition for review of a
negotiability issue under section 7117 of the Federal Service
Labor - Management Relations Statute and part 2424 of the
Authority's Rules and Regulations only when the parties are in
dispute as to whether a union proposal is inconsistent with law,
rule or regulation. In this case, the Agency has withdrawn any
allegation of nonnegotiability it may have made concerning the
Union's proposal. 

     There is no dispute before the Authority as to whether the
Union's proposal is inconsistent with law, rule or regulation.
Accordingly, the Union's petition for review is dismissed without
prejudice to the Union's right to file an appeal if the
conditions governing review are met and the Union chooses to file
such an appeal. See Federal Professional Nurses Association,
Local 2707 and U.S. Department of Health and Human Services,
Federal Employees Occupational Health, Region III, 34 FLRA  71
(1989).

For the Authority.

                              Alicia N. Columna
                              Director, Case Control Office


FOOTNOTES

     Footnote */ The Authority's Rules and Regulations provide
that a union may file an unfair labor practice charge concurrent
with a petition for review of a negotiability issue. The Union,
however, must choose which procedure to pursue first. 5 C.F.R.
2423.5, 2424.5.

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