Fort Bragg Schools System, Fort Bragg, North Carolina (Activity) and American Federation of Government Employees, Local 1770, AFL-CIO (Petitioner) 

 3 FLRA No. 99
 
 FORT BRAGG SCHOOLS SYSTEM
 FORT BRAGG, NORTH CAROLINA
 Activity
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 1770
 Petitioner
 
                                            Case No. 4-RO-30
 
                            DECISION AND ORDER
 
    UPON A PETITION DULY FILED WITH THE FEDERAL LABOR RELATIONS AUTHORITY
 UNDER SECTION 7111(B)(2) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE, 5 U.S.C.  7101-7135, A HEARING WAS HELD BEFORE A
 HEARING OFFICE OF THE AUTHORITY.  THE AUTHORITY HAS REVIEWED THE HEARING
 OFFICER'S RULINGS MADE AT THE HEARING AND FINDS THAT THEY ARE FREE FROM
 PREJUDICIAL ERROR.  THE RULINGS ARE HEREBY AFFIRMED.
 
    UPON THE ENTIRE RECORD IN THIS CASE, THE AUTHORITY FINDS:
 
    THE PETITIONER FILED AN AMENDED PETITION SEEKING EXCLUSIVE
 RECOGNITION AS THE CERTIFIED REPRESENTATIVE OF ALL EMPLOYEES OF FORT
 BRAGG SCHOOLS CAFETERIA FUND (FUND), EXCLUDING MANAGEMENT OFFICIALS,
 PROFESSIONAL EMPLOYEES, SUPERVISORS, AND EMPLOYEES EXCLUDED BY
 PROVISIONS OF 5 U.S.C. 7112(B)(2), (3), (4), (6) AND (7).  PETITIONER
 ARGUES THAT THE FORT BRAGG SCHOOLS SYSTEM (SYSTEM) IS THE ACTIVITY
 BECAUSE THE FUND IS AN INSTRUMENTALITY OF THE ARMY AT FORT BRAGG, AND
 NOT A SEPARATE AND DISTINCT ENTITY AS CONTENDED BY THE ACTIVITY.  THE
 ACTIVITY ASSERTS THE FUND IS NOT AN "AGENCY" WITHIN THE MEANING OF
 SECTION 7103(A)(3) /1/ THE EMPLOYEES OF THE FUND ARE NOT "EMPLOYEES"
 WITHIN THE MEANING OF SECTION 7103(A)(2) /2/ OF THE STATUTE AND,
 THEREFORE, THE FUND IS NOT SUBJECT TO THE AUTHORITY'S JURISDICTION.  THE
 SOLE ISSUE HEREIN IS WHETHER THE FUND IS AN "AGENCY" WITHIN THE MEANING
 OF THE STATUTE, AND THEREFORE SUBJECT TO THE JURISDICTION OF THE
 AUTHORITY.
 
    THE FUND IS A PRIVATE ORGANIZATION THAT PROVIDES NOONDAY MEALS TO
 STUDENTS AND FACULTY FOR FORT BRAGG SCHOOLS SYSTEM.  THE FUND EMPLOYS
 APPROXIMATELY 36 EMPLOYEES AT SEVEN SCHOOLS.  APPROXIMATELY 98% OF THE
 STUDENTS ARE EITHER MILITARY DEPENDENTS, CHILDREN OF CIVILIAN BASE
 RESIDENTS, OR NON-MILITARY RELATED DEPENDENTS OF MILITARY HOUSEHOLDS.
 
    REVENUE IS DERIVED PRIMARILY FROM CASH RECEIPTS FOR LUNCHES AND MILK
 SOLD IN THE SCHOOL CAFETERIAS AND IS EXPENDED FOR SALARIES, SUPPLIES,
 AND OTHER EXPENSES NECESSARY FOR THE CAFETERIA OPERATION.  THE FUND ALSO
 PARTICIPATES IN THE REIMBURSEMENT PLAN OF THE U.S. DEPARTMENT OF
 AGRICULTURE SURPLUS FOOD COMMODITIES PROGRAM VIA THE STATE OF NORTH
 CAROLINA.
 
    THE FUND EMPLOYEES WERE NONAPPROPRIATED FUND (NAF) EMPLOYEES UNTIL
 1976 WHEN THE CAFETERIA OPERATION'S STATUS WAS CHANGED TO A "TYPE 3"
 PRIVATE ORGANIZATION UNDER ARMY REGULATION 210-1, WITH THE APPROVAL OF
 THE COMMANDING GENERAL.  ALTHOUGH THE COMMANDING GENERAL HAS THE RIGHT
 TO REVOKE HIS APPROVAL OF THE FUND AS A PRIVATE ORGANIZATION, HE DOES
 NOT HAVE CONTROL OVER ITS DAY-TO-DAY OPERATIONS.  SUCH CLASSIFICATION IS
 DEFINED IN ARMY REGULATION 210-1 AS AN INDEPENDENT PRIVATE ORGANIZATION
 THAT IS "CONTROLLED LOCALLY BY A COMMON INTEREST GROUP WITH NO FORMAL
 CONNECTION WITH OUTSIDE ORGANIZATIONS." THE STATUS WAS CHANGED AT THE
 REQUEST OF NORTH CAROLINA STATE OFFICIALS FOR THE STATED REASON THAT IT
 WAS INAPPROPRIATE FOR THE SCHOOL SYSTEM TO BE TAKING MONIES (LUNCH
 PAYMENTS) FROM THE CAFETERIA OPERATION AND PAYING IT TO THE CENTRAL POST
 FOR SUPPORT SERVICES.  THE STATE DIRECTED THAT THE CAFETERIA OPERATION
 BE OPERATED IN A MANNER COMPARABLE TO OTHER SYSTEMS IN NORTH CAROLINA.
 AT THE TIME OF THE CHANGE, EMPLOYEES HAD THE OPTION TO RESIGN AND SEEK
 OUTSIDE EMPLOYMENT, BE ASSIGNED TO ANOTHER NAF UNIT, OR BE HIRED BY THE
 NEW PRIVATE ORGANIZATION, THE FUND.  NONE OF THE EMPLOYEES SOUGHT OTHER
 NAF JOBS.  ALL OF THEM SOUGHT POSITIONS WITH, AND WERE HIRED BY THE
 FUND.  AS A RESULT OF THE CHANGE, EMPLOYEES WERE REFUNDED THEIR "NAF"
 RETIREMENT BENEFITS BECAUSE THE FUND DOES NOT HAVE A RETIREMENT PLAN.
 
    A REPRESENTATIONAL CERTIFICATE HAD BEEN GRANTED TO THE NATIONAL
 ASSOCIATION OF GOVERNMENT EMPLOYEES (NAGE) IN 1973 FOR ALL NAFE
 EMPLOYEES AT FORT BRAGG.  NAGE DID NOT CHALLENGE THE LOSS OF THE FUND
 EMPLOYEES AT THE TIME OF THE CREATION OF THE FUND, NOR DID IT INTERVENE
 IN THE INSTANT PROCEEDING.
 
    THE FUND'S CONSTITUTION AND EMPLOYEE CONTRACTS ARE THE ONLY WRITTEN
 DOCUMENTS GOVERNING THE FUND'S OPERATIONS.  ARTICLE II(F) OF THE
 CONSTITUTION STATES THAT THE "ORGANIZATION WILL BE SELF-SUSTAINING AND
 RECEIVE NO SUPPORT ASSISTANCE OR FACILITIES FROM THE ARMY OR FROM
 NONAPPROPRIATED FUND INSTRUMENTALITIES . . . ." ARTICLE V STATES THAT
 FORT BRAGG SCHOOL BOARD WILL CONSTITUTE THE OFFICERS OF THE FUND AND
 WILL SERVE AS THE FUND COUNCIL (COUNCIL).  PRESENTLY, THE SCHOOL BOARD
 MEMBERS ARE APPOINTED BY THE COMMANDING GENERAL.  ARTICLE V, SECTION II
 REQUIRES THAT THE SUPERINTENDENT OF SCHOOLS BE APPOINTED CUSTODIAN OF
 THE FUND.  MEMBERSHIP IN THE FUND IS VOLUNTARY AND OPEN TO ALL PARENTS
 OF DEPENDENT CHILDREN ENROLLED IN THE SYSTEM AND ALL SCHOOL EMPLOYEES.
 THE CONSTITUTION ALSO INCLUDES EMPLOYEE POLICIES AND REGULATIONS.
 
    THE SCHOOL FOOD SERVICES SUPERVISOR IS IN CHARGE OF MANAGING THE FOOD
 OPERATIONS AT THE SEVEN SCHOOLS AND REPORTS TO THE ASSISTANT
 SUPERINTENDENT FOR BUSINESS, WHO REPORTS DIRECTLY TO THE SUPERINTENDENT.
  ALTHOUGH THE SUPERINTENDENT, ASSISTANT SUPERINTENDENT, AND FOOD
 SERVICES SUPERVISOR ARE APPROPRIATED FUND EMPLOYEES AND RECEIVE
 GOVERNMENT CHECKS, THE EMPLOYEES RECEIVE NON-GOVERNMENT CHECKS AGAINST
 THE FUND'S ACCOUNT, ENDORSED BY THE SUPERINTENDENT.  THE SUPERINTENDENT
 APPROVES LEAVE BUT EMPLOYEES HAVE A RIGHT OF APPEAL TO THE COUNCIL.
 THERE IS NO INTERCHANGE OF ASSIGNMENTS BETWEEN THE EMPLOYEES OF THE
 SYSTEM AND THOSE OF THE FUND, AND NO COMMON FIRST LEVEL SUPERVISION.
 
    BASED ON THE FOREGOING, IT IS CONCLUDED THAT THE FUND IS NOT AN
 "AGENCY" AS DEFINED IN SECTION 7103(A)(3) OF THE STATUTE.  THAT IS, THE
 FUND IS NOT AN EXECUTIVE AGENCY, OR A NONAPPROPRIATED FUND
 INSTRUMENTALITY OF THE U.S. ARMY.  AS TO WHETHER IT CONTINUES TO BE AN
 NAF INSTRUMENTALITY OF THE U.S. ARMY, AS SET FORTH ABOVE, THE RECORD
 REVEALS THAT THE FUND WAS ESTABLISHED AND EXISTS AS A PRIVATE
 ORGANIZATION IN ACCORDANCE WITH ARMY REGULATIONS AND IN RESPONSE TO A
 LEGITIMATE PURPOSE.  FURTHER, THE FUND'S EMPLOYEES, IN CONTRAST TO OTHER
 NAF EMPLOYEES, DO NOT HAVE A RETIREMENT PLAN, AND ARE NOW COVERED BY
 SOCIAL SECURITY.  ALTHOUGH THE COMMANDING GENERAL CONTROLS APPOINTMENTS
 TO THE FUND COUNCIL VIA THE SCHOOL BOARD, HE DOES NOT EXERCISE CONTROL
 OVER ITS DAY-TO-DAY OPERATIONS, OR THE WAGES, HOURS AND WORKING
 CONDITIONS OF THE FUND'S EMPLOYEES.
 
    UNDER THESE CIRCUMSTANCES, IT IS CONCLUDED THAT THE FUND IS NO LONGER
 A NAF INSTRUMENTALITY AND THEREFORE DOES NOT COME WITHIN THE DEFINITION
 OF "AGENCY" UNDER SECTION 7103(A)(3) OF THE STATUTE.  THUS, THE
 EMPLOYEES ARE NOT "EMPLOYEES" WITHIN THE MEANING OF SECTION 7103(A)(2).
 /3/ ACCORDINGLY, IT SHALL BE ORDERED THAT THE PETITION HEREIN BE
 DISMISSED ON JURISDICTIONAL GROUNDS.
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 4-RO-30 BE, AND IT
 HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., JULY 10, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                          CERTIFICATE OF SERVICE
 
    COPIES OF THE DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS
 AUTHORITY IN THE SUBJECT PROCEEDING HAVE THIS DAY BEEN MAILED TO THE
 PARTIES LISTED:
 
    DR. HAYWOOD DAVIS, SUPERINTENDENT
 
    FORT BRAGG SCHOOLS SYSTEM
 
    POST OFFICE BOX 70089
 
    FORT BRAGG, NORTH CAROLINA 28307
 
    MR. KENNETH L. DALY, PRESIDENT
 
    LOCAL 1770, AFGE, AFL-CIO
 
    POST OFFICE BOX 70027
 
    BUILDING 25-4707, RICKETTS STREET
 
    FORT BRAGG, NORTH CAROLINA 28307
 
    MR. RONALD F. WOODARD
 
    LABOR RELATIONS OFFICER
 
    CIVILIAN PERSONNEL OFFICE
 
    HEADQUARTERS XVIII AIRBORNE DIVISION
 
    FORT BRAGG, NORTH CAROLINA 28307
 
    MR. SEYMOUR X. ALSHER
 
    REGIONAL DIRECTOR
 
    FEDERAL LABOR RELATIONS AUTHORITY
 
    1776 PEACHTREE STREET, N.W.
 
    SUITE 501, NORTH WING
 
    ATLANTA, GEORGIA 30309
 
    /1/ SECTION 7103.  DEFINITIONS;  APPLICATION
 
    (A) FOR THE PURPOSE OF THIS CHAPTER--
 
   .          .          .          .
 
 
    "AGENCY" MEANS AN EXECUTIVE AGENCY (INCLUDING A NONAPPROPRIATED FUND
 INSTRUMENTALITY
 
    DESCRIBED IN SECTION 2105(C) OF THIS TITLE AND THE VETERANS' CANTEEN
 SERVICE,
 
    VETERANS' ADMINISTRATION), THE LIBRARY OF CONGRESS, AND THE
 GOVERNMENT PRINTING OFFICE, BUT
 
    DOES NOT INCLUDE--
 
    (A) THE GENERAL ACCOUNTING OFFICE;
 
    (B) THE FEDERAL BUREAU OF INVESTIGATION;
 
    (C) THE CENTRAL INTELLIGENCE AGENCY;
 
    (D) THE NATIONAL SECURITY AGENCY;
 
    (E) THE TENNESSEE VALLEY AUTHORITY;
 
    (F) THE FEDERAL LABOR RELATIONS AUTHORITY;  OR
 
    (G) THE FEDERAL SERVICE IMPASSES PANEL;
 
    /2/ SECTION 7103.  DEFINITIONS;  APPLICATION
 
    (A) FOR THE PURPOSE OF THIS CHAPTER--
 
   .          .          .          .
 
 
    "EMPLOYEE" MEANS AN INDIVIDUAL--
 
    (A) EMPLOYED IN AN AGENCY;  OR
 
    (B) WHOSE EMPLOYEMENT IN AN AGENCY HAS CEASED BECAUSE OF ANY UNFAIR
 LABOR PRACTICE UNDER
 
    SECTION 7116 OF THIS TITLE AND WHO HAS NOT OBTAINED ANY OTHER REGULAR
 AND SUBSTANTIALLY
 
    EQUIVALENT EMPLOYMENT, AS DETERMINED UNDER REGULATIONS PRESCRIBED BY
 THE FEDERAL LABOR
 
    RELATIONS AUTHORITY;
 
    BUT DOES NOT INCLUDE--
 
    (I) AN ALIEN OR NONCITIZEN OF THE UNITED STATES WHO OCCUPIES A
 POSITION OUTSIDE THE UNITED
 
    STATES;
 
    (II) A MEMBER OF THE UNIFORMED SERVICES;
 
    (III) A SUPERVISOR OR MANAGEMENT OFFICIAL;
 
    (IV) AN OFFICER OR EMPLOYEE IN THE FOREIGN SERVICE OF THE UNITED
 STATES EMPLOYED IN THE
 
    DEPARTMENT OF STATE, THE AGENCY FOR INTERNATIONAL DEVELOPMENT, OR THE
 INTERNATIONAL
 
    COMMUNICATION AGENCY;  OR
 
    (IV) ANY PERSON WHO PARTICIPATES IN A STRIKE IN VIOLATION OF SECTION
 7311 OF THIS TITLE;
 
    /3/ SEE GENERAL SERVICES ADMINISTRATION, NATIONAL ARCHIVES AND
 RECORDS SERVICE, 8 A/SLMR 747, A/SLMR NO. 1075, FLRC NO. 78A-98(1978);
 NATIONAL SCIENCE FOUNDATION, 3 A/SLMR 564, A/SLMR NO. 316(1973);
 ACTION, 2 A/SLMR 495, A/SLMR NO. 207(1972).