Trustees of the Corcoran Gallery of Art

TRUSTEES OF THE CORCORAN GALLERY OF ART 565 Trustees of the Corcoran Gallery of Art 1 and Interna- tional Union, United Plant Guard Workers of America, Petitioner. Case 5-RC-7288 November 16, 1970 DECISION AND DIRECTION OF ELECTION By MEMBERS FANNING, BROWN, AND JENKINS Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer William I. Shooer of the National Labor Relations Board. Following the hearing and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regula- tions and Statements of Procedure, Series 8, as amended, the case was transferred to the Board for decision. The Petitioner filed a brief. A motion to dismiss and a brief in support thereof was filed by the Employer. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this case, the Board finds: 1. The Employer is a private nonprofit art gallery which was created by the deed of William W. Corcoran to James M. Carlisle recorded May 18, 1869, and was incorporated by Act of Congress in 1870. The deed provides for the establishment of an institution in Washington, D.C., to be. "dedicated to Art," and used solely for the purpose of encouraging American genius, in the production and preservation of works pertaining to the "Fine Arts." There are 9 trustees, and directly under them, a board of governors with 29 members, who govern the Employer.2 The deed also provides for the perpetual establishment and maintenance of a public gallery and museum for the promotion and encouragement of the arts of painting and sculpture, and the fine arts generally, and with such regulations and limitations as the board of trustees may prescribe. The Employer operates a gallery and an art school in a single building at 17th Street and New York Avenue in Washington, D.C. A collection of 18th and 19th century American art dedicated by William 1 The Employer's name appears as amended at the hearing. 2 The Employer is supported entirely by private citizens and is assisted in its operation by certain groups and committees, i.e., Friends of Corcoran Gallery of Art, Association of the Corcoran Gallery of Art, the Women's Committee, and the National Committee for the Corcoran. Their primary Wilson Corcoran is on exhibit in the gallery. Also on exhibit is the Clark collection of 20th century American artists.3 The Employer's art collection is worth approximately $35 million. In addition, Em- ployer also owns and operates the Corcoran Gallery Dupont Center Workshop. The Dupont Workshop is under the direction of a graphic art specialist who works with other artists in reproducing fine graphic prints. For a brief period of time, the Employer operated a branch of the School of Art in Columbia, Maryland. However, such operation was terminated as of June 1970. The Employer employs approximate- ly 129 persons of whom 43 are staff of the gallery, 48 staff and faculty in the School of Art, 1 person at the Dupont Workshop, 21 maintenance employees, and 16 guards and watchmen. The gallery is open Tuesday ; through Sunday. Admission is free on Tuesdays and Wednesdays, but a 50-cent admission fee is charged from Thursday through Sunday. Other sources. of income for the Employer include a sales desk located in the gallery where reproductions of paintings, postcards, small art objects, and ceramics are sold; an art rental service which allows members and certain other individuals to rent paintings at a modest rental fee with a view to purchasing the painting in which case the Employer receives a 10-percent commission ; income from the Employer's approximately $3,600,000 endowment which is invested in real estate notes, treasury notes and corporate bonds, and tuitions from the School of Art. The Corcoran School of Art, founded in 1897, consists of three floors of studios in the north section of the gallery. Facilities include an art library, an auditorium, and a gallery for exhibition of student and faculty work. Faculty members are paid for their services and they are supplemented by visiting artists from this country and abroad. Although the school is not an accredited institution, students are required to pay tuition and they must be graduated from secondary school. The school grants the Corcoran School of Art Diploma upon completion of 4 years of study. Diplomas are offered in ceramics, communica- tions design, graphics, painting and sculpture. Also the Corcoran School of Art Certificate is an interme- diary award granted upon completion of 2 years of study. The school offers a visual communications course that provides training for those students who may go into studios as designers and commercial artists. Classes are conducted during the day and in the evening, as well as on Saturday. In addition to the purpose is to raise money to purchase works of art. There are approximately 4,500 to 5,000 memberships which also provide financial support. % An addition designated as the W. A. Clark wing to the gallery was built in 1928 to dedicate and house the works of art owned by W. A. Clark. 186 NLRB No. 83 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fall and spring semesters, there is a summer semester, and a 4-week summer program in the Corcoran School of Art Abroad, a course that includes studio work at Leeds College of Art in England. Of the students who attend the school, a majority come from the District of Columbia, Virginia, and Maryland. During the academic year 1969-1970, there were 33 faculty members in the day and evening school and 15 in the Saturday school. There were 10 employees who worked in administrative tasks, 3 on the janitorial staff, and I guard who worked part time in the evening.4 Enrollment for the 1969 fall semester in the day and evening school was 805 students and 1,470 registrations, and for the 1970 spring semester, 742 students and 1,251 registrations. During the same period in the Saturday school, there were 387 students during the fall semester, and 437 students during the spring semester. During 1969 the Employer grossed revenues in the approximate amount of $1,104,000. Of this amount, approximately $171,000 was derived from income from investments, $23,500 from admissions, approxi- mately $253,000 from donations and memberships. During this same period the Employer received approximately $525,000 from tuition fees at the School of Art. The Employer urges the Board to decline to assert jurisdiction over it because, it contends, that the Employer is an art museum, and a nonprofit charita- ble institution contributing to the cultural values of the community and that the Board should, in its discretion, decline to assert jurisdiction because the Employer is not engaged in commerce. Additionally, the Employer, though conceding that the Board exercises plenary jurisdiction in the District of Columbia generally, contends that the Board has not exercised plenary jurisdiction over employers operat- ing in the field of education in the District of Columbia. Finally the Employer contends that although the Board in Cornell University5 has reversed its ruling in the Columbia University cases such, reversal should,not affect the decision in this case because the Employer is only incidentally an educationaEorganiza- tion, and a small local one at that. We find no merit in these contentions. The record clearly indicates that the Employer's primary goal is education and that, the Gallery and the School of Art constitute an educational institution for the public promotion of works of art. The Employer's permanent art collection, special exhib- itions, Sunday concerts, and lectures constitute 4 The janitorial staff and the guard work in association with the gallery staff. 5 183 NLRB No. 41. 6 Trustees of Columbia University, 97 NLRB 424. 7 Woods Hole Oceanographic Institution, 143 NLRB 568; The Westchester Corporation, 124 NLRB 194. informal educational programs for the advancement of various art forms. Significantly, the Employer's annual report for 1967 indicated that the number of public and private school children as well as adults on Gallery tours had increased over the past year, and that the Children's Gallery had become the most popular part of the education program. As noted previously, the Employer's School of Art offers a more formalized educational program that is based on credits earned toward a diploma which is granted at the completion of 4 years of study or a certificate which is awarded after the completion of a 2-year program. The school has a paid faculty, students are charged tuition, classes are conducted on a formal basis, regular attendance is required at all classes, students are evaluated and graded with respect to their ability and progress, and income from tuition amounts to nearly half of the Employer's total income. Clearly, the School of Art is not merely incidental to the Employer's asserted main purpose of exhibiting its permanent art collection. Although the Employer is a nonprofit corporation, the Board has often held that it will assert jurisdiction over a nonprofit corporation which has engaged in activities commercial in nature.? As noted above, the Employer employs approximately 129 persons; it sells paintings and reproductions of paintings; it charges admission to its gallery; it receives income from its endowment of approximately $3,600,000 which is invested in real estate notes, treasury notes, and corporate bonds; and it receives income from its School of Art of approximately $525,000 in tuitions. In these circumstances we find that the Employer is engaged in commerce as defined in Section 2(6) of the Act. As contended by the Employer, the Board declined to assert jurisdiction over a food service management business at Trinity College in Crotty Brothers,8 and over a nonprofit corporation engaged in the exchange of books and periodicals in United States Book Exchange,9 both of which were located in the District of Columbia, because they were connected with the educational system. Thus, in those cases, the Board declined to follow its general policy of exercising plenary jurisdiction over employers located in the District of Columbia,10 and instead followed its policy of not asserting jurisdiction over nonprofit educational institutions. 11 However, we announced in Cornell University, supra, that we would no longer decline to assert jurisdiction over educational institu- tions as a class. Since we no longer decline to assert 8 Crotty Brothers, N.Y., Inc., 146 NLRB 755; The Westchester Corporation, supra. " United States Book Exchange, Inc., 167 NLRB 1028. 10 M. S. Ginn and Company, 114 NLRB 112; The Westchester Corporation, supra. Trustees of Columbia University, 97 NLRB 424. TRUSTEES OF THE CORCORAN GALLERY OF ART 567 jurisdiction over educational institutions, such as the Employer herein, there is no longer any reason not to follow our decision in M. S. Ginn. Accordingly, we find that it will effectuate the policies of the Act to assert jurisdiction herein. 2. Petitioner claims to represent certain of the Employer's employees. 3. A question affecting commerce exists concern- ing the representation of certain of the Employer's employees within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. The parties stipulated as to the appropriateness of the guard unit . However, the Employer would include the sergeant of the guard. The Petitioner would exclude him because of his asserted supervisory authority. There is testimony that the sergeant checks the guard stations , he arranges relief for the various stations, and he receives 12 percent more salary than the other guards . Testimony indicates that the sergeant has no authority to hire, discharge, or discipline guards or effectively recommend such action. We do not consider this limited evidence sufficient to find that the sergeant responsibly directs guards in the performance of their duties. On the basis of the foregoing we find that the sergeant of the guards is not a supervisor within the meaning of Section 2(11) of the Act. Accordingly , we shall include him in the unit. We find that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All regular part-time and full-time guards of the Employer employed at its Washington, D.C. location, and excluding all other employees , office clerical employees, professional employees and supervisors as defined in the Act. [Direction of Election omitted from publication.]