Minneapolis Society of Fine Arts

MINNEAPOLIS SOCIETY OF FINE ARTS 371 Minneapolis Society of Fine Arts, Employer-Petitioner and The Professional and Administrative Staff Association of the Minneapolis Society of Fine Arts and Minneapolis Institute of Arts. Case 18-RM-759 November 30, 1971 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Under a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Robert V. Johnson. Following the hearing and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations and Statements of Procedure, Series 8, as amended, and by direction of the Regional Director for Region 18, this case was transferred to the National Labor Relations Board for decision. Briefs were filed by the Employer and the Union. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its authority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and find that they are free from prejudicial error. They are hereby affirmed. The Board has considered the entire record in this case and makes the following findings: 1. The Employer (also referred to as the Society) is a nonprofit corporation with offices and principal place of business located in Minneapolis, Minnesota, where it operates the Minneapolis Institute of Arts (herein referred to as the Institute) and the Minneapo- lis College of Art and Design (herein referred to as the College). The Institute operates an art museum and galleries for the display of an art collection worth $50 million; the Children's Theatre Company which provides theatrical productions and trains young people in the theatre arts; and a library containing books and slides relating to art history. In addition, the Institute provides programs of art instruction and lectures to students in various school systems, and operates the Art Opportunity Center where high school students may receive instruction acceptable for high school credit. The College is a fully accredited 4-year college which offers courses of instruction toward the degree ' Those currently serving as honorary trustees are individuals who were at one time elected trustees. 2 The Society's articles of incorporation provide that the following individuals will serve as ex officio trustees. the Governor of the State of Minnesota, the mayor of Minneapolis, the president of the Minneapolis Park and Recreation Board, the president of the Library Board of the city of Bachelor of Fine Arts. At the time of the hearing there were approximately 443 full-time students enrolled at the College. Of these, approximately 142 students were from outside the State of Minnesota. The Society's affairs are managed by a board of trustees, consisting of 56 trustees elected by members of the Society, 10 honorary trustees,' and 9 ex officio trustees who hold their trusteeship by virtue of their public office or office in other organizations.2 During the fiscal year ending June 30, 1971, the Employer operated on a budget of $3,148,000. The revenue to fund the budget was provided by grants from private foundations, income from its $15 million endowment fund, funds from college tuition fees, gifts from the general public, admissions to the Children's Theatre Company, membership dues, and fees charged for special art exhibits. In addition, the Employer received $505,000 from the Minneapolis Park Museum Fund, a fund established by state statute which provides for the levy and collection of a real estate tax on all real property within the county in which the Employer is located. The tax revenue is paid to the city treasurer who credits the Park Museum Fund for the amount collected. The fund is then paid exclusively to the Society, to be used for the purposes expressed in the statute. According to the Employer, during its last fiscal year, $150,000 from the fund was used to pay operating expenses such as heat, electricity, and maintenance on the Employer's buildings. The remaining $355,000 was used to pay the salaries of approximately 62 of the Society's employees. These 62 employees received their salaries by checks distributed by the city comptroller from a list of employees supplied by the Society. During the past fiscal year, the Employer purchased approximately $453,000 worth of works of art from outside Minnesota. Another $150,000 was spent in connection with exhibitions of works of art borrowed from outside the State, including the cost of rental, transportation, and insurance. The Employer also paid $25,000 in premiums to insure works of art, including those borrowed from out of State; $32,500 for interstate travel; $107,000 to out-of-state archi- tects; and $106,000 to out-of-state consultants. The buildings, which house the Institute and the College are located on land owned by the city of Minneapolis pursuant to a deed of the land to the city by a private individual in 1911. The deed requires that the city grant to the Society the exclusive right to occupy, use, manage, and control all buildings erected of Minneapolis, the chairman of the Board of Education of Special School District No. I in the city of Minneapolis, the president of the University of Minnesota, the executive director of the Minnesota State Arts Council, the president of the Friends of the Institute, and the chairman of the Minnesota Arts Forum. 194 NLRB No. 55 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on the land. Moreover, the Society must consent to any alteration of the use of the land by the city. The Union urges the Board to decline jurisdiction over the Employer because, it contends, the Employ- er's operations are local in character and do not substantially affect interstate commerce. Also, the Union contends that the Employer is a quasi-public institution and, therefore, exempt from the Board's jurisdiction. We do not agree. In urging that the Employer is a quasi-public institution, and thereby exempt from the provisions of the Act, the Union relies on the following facts: (1) the Society's buildings are located on property owned by the city; (2) the Society receives revenue from a public tax fund; (3) 62 of the Employer's 280 employees are paid directly by the city; and (4) some of the 75 trustees are public officials. Section 2(2) of the Act exempts from the Board's jurisdiction "any State or political subdivision thereof " In determining that an entity falls within the scope of this exemption, the Board requires that the entity either be (1) created directly by the State, so as to constitute a department or administrative arm of the government, or (2) administered by individuals who are responsible to public officials or to the general public.3 In applying the first of the above tests, we do not consider the facts urged by the Union sufficient to warrant the conclusion that the Society is "a depart- ment or administrative arm of the government." We note that the Society was not created directly by the State; and the record contains no indication that the Society exercises any sovereign power or that the State exercises any supervision or control over the Society's operations. Moreover, the Society does not become a creature of the State by the mere receipt of revenue from a state-established tax fund,4 or occupancy of city-owned property.5 Nor do we consider controlling the fact that 62 employees are paid directly by the city. Clearly, it is the Society, not the city, which hires and fires these employees, establishes all the terms and conditions of their employment, and controls all aspects of the employ- ment relationship.6 The payment of these employees by the city is merely a convenient method for transferring to the Society funds to which the Society is entitled. With respect to the second test, above, the facts herein do not establish that the Society is adminis- tered by individuals who are responsible to public 3 The Natural Gas Utility District of Hawkins County, Tennessee, 167 NLRB 691, see also N.L R B. v Natural Gas Utility District of Hawkins County, Tennessee, 427 F 2d 312, affd. 402 U.S 600. 4 See Culinary Alliance and Hotel Service Employees Union Local 402 (The San Diego Civic Facilities Corp.), 175 NLRB 161 5 See Trans-East Air, Inc, 189 NLRB No 33, San Diego Civic Facilities Corp, supra officials or, to the general public. Thus, 66 of the 75 trustees are elected by the members of the Society, all of whom are private citizens; none is elected or appointed by any public official. Nor are any officers of the Society responsible to any public official or to the general public. While some of the remaining nine trustees hold their trusteeships by virtue of their public office, we consider as significant the,fact that they are made ex officio trustees, not by virtue of any requirement of the State, but rather by virtue of the Society's own articles of incorporation.? Accordingly, we find that the Society is an employer within the meaning of Section 2(2) of the Act. It is clear from the record that the Employer meets the jurisdictional standard which the Board applies to enterprises similar to the Employer herein. Trustees of the Corcoran Gallery of Art, 186 NLRB No. 83. In Corcoran the Board asserted jurisdiction over an art gallery and school of art, applying the same jurisdic- tional standard as it previously applied to nonprofit educational institutions.8 From the facts set out above, including the Employer's gross revenue in excess of $3 million, and its significant expenditures for out-of-state goods and services, we conclude that the Employer's operation has a significant impact on interstate commerce, and it will effectuate the policies of the Act to assert jurisdiction herein. 2. The Petitioner is a labor organization claiming to represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. The appropriate unit. There is no history of collective bargaining for the employees sought to be represented herein. The Employer contends that the following unit is appropriate for purposes of collective bargaining: All regular full-time and regular part-time employ- ees of Minneapolis Society of Fine Arts, including professional employees; but excluding employees in the Children's Theatre Company and Minneap- olis College of Art and Design, managerial employees, confidential employees, engineers, guards and supervisors as defined in the Act. Relying on the provisions of Section 9(b)(1) of the Act, the Employer urges that if the above unit is found appropriate the professional employees be permitted to vote as a separate voting group to determine 6 See Trans-East Air, Inc., supra 7 See Lewiston Orchards Irrigation District, 186 NLRB No. 121; cf. City of Austell Natural Gas System, 186 NLRB No. 44; Fayetteville-Lincoln County Electric System, 183 NLRB No 19. 8 See Cornell University, 183 NLRB No. 41. See also 29 CF It 103.1 which provides for the exercise of jurisdiction in such cases where the Employer has a gross annual revenue of $ 1 million. MINNEAPOLIS SOCIETY OF FINE ARTS whether or not they desire to be represented as part of the overall unit. The Union contends that, although some of the employees are professionals and some are nonprofessionals,; separate voting groups are not required. They urge that separate voting groups are required only in "factory-type" situations in which skilled professionals are sought to be represented along with lesser skilled factory laborers. - Contrary to the Union's position that separate voting groups are not required in this case, we find that Section 9(b)(1) of the Act requires that profes- sional employees be placed in a separate voting group in all cases. Since the record indicates that there are nonprofessional employees within the composition of the proposed unit, we shall provide for the required separate voting groups in our Direction of Elections. The parties are now in agreement that at least 17 employees are nonsupervisory professional employ- ees. Initially, there was a dispute over the professional status of three of them: Pat Gill, Catherine Asher, and D. Hartwell. The Employer in its brief to the Board, however, has acquiesced in the Union's position with respect to these employees. Therefore, there is no issue concerning the professional status of any employee for determination by the Board. The Union would include in the unit, regardless of the voting group into which they might be placed, the following individuals, whom the Employer seeks to exclude as either supervisors, managerial employees, or confidential employees: 10 Mary Feeney: Feeney is the membership secretary for the Society. Her duties include the development of programs and events which will maintain or increase membership in the Society. She is assisted by two individuals and, according to the Employer, responsi- bly directs their work. It appears that she possesses the authority to hire, and, although she has not done so, her predecessor hired the two employees currently working in the department. Feeney recently approved wage increases for the two employees. Accordingly, we find that she is a supervisor within the meaning of the Act, and shall exclude her from the unit. Tim Perkins: Perkins is the mailroom supervisor. The Employer contends that Perkins should be excluded because he uses independent judgment and responsibly directs the work of two other mailroom employees. Although the Employer's planning and administrative officer testified that Perkins possesses 9 The Union apparently also contends alternatively that all of the employees are "professionals." However, the record clearly does not support this contention 10 Of the persons whose eligibility is so disputed , nine of them have been stipulated by the parties to possess professional status: Ann Mason, Barbara Schissler, Ruth Dean, Membell Parsons, Barbara Camm, Marione Russell, Jean Isenberg, Ron Libertus, and Scott Helms Based on this stipulation and the absence of evidence to the contrary, we find that the 373 the authority to hire and effectively recommend wage increases, the record reveals no evidence that he has done either. Perkins is salaried, although he receives $25 per month less than one of the mailroom employees whom he allegedly supervises, and, unlike many of the individuals found to be supervisors, he receives overtime pay. The present record is inconclu- sive as to Perkins' supervisory status; therefore, we direct that he be permitted to vote subject to challenge. Since he has been found to be a nonprofes- sional, we will include him in voting group (a), infra. Jane Fischer: Fischer is personnel assistant and secretary to George Zahner, manager of properties and administration. Zahner is responsible for the negotiation and administration of collective-bargain- ing agreements between the Employer and the unions representing the Employer's guards and engineers. Fischer's duties include the typing of correspondence to these unions, and the record reveals that she has typed interoffice memos concerning pending negotia- tions and a draft of the Employer's contract propos- als. She also maintains the Employer's personnel files, although these files are available to admittedly nonconfidential employees. Fischer testified that she does not accompany Zahner to negotiating sessions nor is she privy to any confidential information concerning negotiations. Also, it appears that at least one other employee performs the same duties as Fischer, but there is no contention that this employee is a confidential employee. We find that the evidence as to Fischer's status is inconclusive, and shall direct that she be allowed to vote subject to challenge. Since Fischer is not a professional, she will be included in voting group (a), infra. Ann Mason: Mason is the Institute's publicity director. The Employer contends that she should be excluded from the unit either as a supervisor or a managerial employee. In her capacity as publicity director, Mason has the authority to commit the Employer's credit. Because her authority is limited by her department's budget, we do not consider this factor, without more, to warrant her exclusion as a managerial employee. However, it appears that she does responsibly direct the work of at least one employee in the department and uses independent judgment in initiating that employee's work. We find, therefore, that she is a supervisor within the meaning of the Act, and shall exclude her from the unit. Barbara Schissler: Schissler is the editor for museum aforenamed individuals are professionals . The parties also stipulated that Irwin Lucius and Michael Oker are nonprofessionals, and we so find. No stipulation was entered into concerning the remaining employees whose eligibility is questioned : Mary Feeney, Tim Perkins, and Jane Fischer. Both parties, however, classify them as nonprofessionals , and the record contains evidence that appears to support such a finding. Accordingly, we find that Feeney, Perkins, and Fischer are nonprofessionals. 374 DECISIONS OF NATIONAL LABOR-RELATIONS BOARD publications. She is responsible for publishing the Institute's exhibition catalogues and annual bulletin. It appears that she directs the work of an assistant, Susan Brown, and hires and directs part-time proo- freaders and copyreaders as needed in connection with publication of the catalogues and bulletin. It also appears that Brown was hired on Schissler's recom- mendation, and it was Schissler who explained to Brown her duties and salary. We find that Schissler is a supervisor within the meaning of the Act, and shall exclude her from the unit. Ruth Dean: Dean is a designer in the publications department. The only evidence of her supervisory status is the Employer's testimony that she, like Schissler, directs Brown's work when Brown is working in the design department. Brown testified that she does not consider Dean to be her supervisor. We are not satisfied that we have sufficient evidence upon which to base a determination as to Dean's status, and direct that she be allowed to vote subject to challenge." Since Dean is a professional, she will be included in voting group (b), infra. Merribell Parsons: Parsons is the curator of decora- tive arts. She is also a member of the Employer's steering committee which serves as a link between the director of the Institute and the Institute staff. As a member of that committee, Parsons participates with other committee members, all of whom are admitted supervisors or managerial employees, in formulating policies and conveying those policies to the employ- ees. We find that Parsons is a managerial employee, and shall exclude her from the unit. Barbara Camm: Camm is the Employer's slide librarian. She has one regular part-time assistant and four other individuals who assist her on an irregular basis. The Employer's witness testified that Camm responsibly directs the work of all five assistants, and that she possesses the authority to effectively recom- mend wage increases. Absent testimony to the contrary, we find that Camm is a supervisor within the meaning of the Act, and we shall exclude her from the unit. Marjorie Russell: Russell, head of the Institute's tour department, is responsible for organizing and presenting tours of Institute facilities. In addition to several volunteer tour guides, the department includes two employees who work with Russell. Pursuant to Russell's recommendations, one of them was recently rehired and the other was transferred from a part-time position in another department to a full-time job in the tour department. The record discloses that Russell can effectively recommend wage increases. In addi- tion, Russell established guidelines concerning the operation of the tour department and, upon her 11 We find that Dean's authority to make certain decisions in dealing with publishers is insufficient to warrant her exclusion as a managerial recommendation, the guidelines were approved. It is clear, therefore, that Russell is a supervisor within the meaning of the Act, and we shall exclude her from the unit. Jean Isenberg: Isenberg is chairman of the Insti- tute's Bryant department and is responsible for furnishing art instruction to students at one of the city's high schools. The record indicates that there is only one other employee in the department, Mrs. Harley, who, like Isenberg, instructs and lectures on art. While the Employer contends that Isenberg directs Mrs. Harley's work, it appears from Isenberg's testimony that the two work together, the only difference between the two being that Mrs. Harley works part time while Isenberg works full time. There is no evidence that Isenberg possesses the authority to hire, fire, promote, discipline, or effectively recom- mend any personnel action indicative of supervisory status. Nor do her duties indicate that she is a managerial employee. We find that Isenberg is properly included in the unit. As a professional employee, she will be included in voting group (b), infra. Ron Libertus.• Libertus, the Institute's community coordinator, is responsible for establishing relations with minority groups and involving such groups in the Institute's programs.Libertus is assisted by a secretary According to the Employer, he has the authority to effectively recommend wage increases, hiring, and dismissal. In the absence of evidence to the contrary, we find that Libertus is a supervisor within the meaning of the Act, and we shall exclude him from the unit. Scott Helms: Helms is the arts opportunity coordi- nator. His job involves providing art instruction and classes in art to high school students. Participation in such classes may be counted by the students as credit toward high school graduation. Helms has several employees under his direction and it appears that Helms is responsible for hiring employees for the department. Therefore, we find that Helms is a supervisor within the meaning of the Act, and we shall exclude him, from the unit. Irwin Lucius: Lucius is the chief exhibitions assist- ant and head of the installation crew; which is responsible for installing works of art in the museum and constructing exhibitions. The crew consists of three employees and it appears that Lucius responsi- bly directs their work. Although he does not have the authority to hire, Lucius can effectively recommend hiring and has, in fact, participated in discussions leading to the hiring of the present crew and will be consulted when vacancies occur. We find that Lucius employee MINNEAPOLIS SOCIETY OF FINE ARTS 375 is a supervisor within the meaning of the Act, and we shall exclude him from the unit. Michael Oker: Oker is curator of the mobile galleries-vehicles used by the Institute to display works of art throughout the city and State. The mobile galleries are manned by four employees who are directed by Oker in their work. Upon Oker's recom- mendation, one employee was hired; another employ- ee resigned when Oker recommended that the employee be dismissed. Oker has also made effective recommendations concerning wage increases for some employees, although his recommendations in other instances were not followed. According to a memorandum circulated to employees in the depart- ment, Oker possesses the authority to adjust employee grievances. We find, therefore, that Oker is a supervisor within the meaning of the Act, and we shall exclude him from the unit. We find that the following employees may consti- tute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act: All regular full-time and regular part-time employ- ees of the Minneapolis Society of Fine Arts, including professional employees, but excluding employees in the Children's Theatre Company and Minneapolis College of Art and Design, manageri- al employees, confidential employees, engineers, guards, and supervisors as defined in the Act. The unit set out above includes professional and nonprofessional employees. However, as noted above, the Board is prohibited by Section 9(b)(1) of the Act from including professional employees in a unit with employees who are not professionals unless a majority of the professional employees vote for inclusion in such a unit. Accordingly, we must ascertain the desires of the professional employees as to inclusion in a unit with nonprofessional employees. We shall therefore direct separate elections in the following voting groups: Voting group (a): All full-time and part-time employees of the Minneapolis Society of Fine Arts, but excluding employees in the Children's Theatre Company and Minneapolis College of Art and Design, managerial employees, confidential employees, engineers, professional employees, guards, and supervisors as defined in the Act. Voting group (b): All professional employees of the Minneapolis Society of Fine Arts, but exclud- ing professional employees in the Children's Theatre Company and Minneapolis College of Art and Design, and all other employees and supervi- sors as defined in the Act. The employees in the nonprofessional voting group (a) will be polled to determine whether or not they wish to be represented by the Union. The employees in voting group (b) will be asked two questions on their ballot: (1) Do you desire the professional employees to be included in a unit composed of all employees of • the Employer for the purposes of collective bargaining? (2) Do you desire to be represented for the purposes of collective bargaining by The Profes- sional and Administrative Staff Association of the Minneapolis Society of Fine Arts and Minneapolis Institute of Arts? If a majority of the professional employees in voting group (b) vote "yes" to the first question, indicating their wish to be included in a unit with nonprofession- al employees, they will be so included. Their votes on the second question will then be counted together with the votes of the nonprofessional voting group (a) to determine whether or not the employees in the whole unit wish to be represented by the Union. If, on the other hand, a majority of professional employees in voting group (b) vote against inclusion, they will not be included with the nonprofessional employees. Their votes on the second question will then be separately counted to determine whether or not they wish to be represented by the Union. There is no indication in the record that the Union would be unwilling to represent the professional employees separately, if those employees vote for separate representation. However, if the Union does not desire to represent the professional employees in a separate unit even if those employees vote for such representa- tion, the Union may notify the Regional Director to that effect within ten (10) days of the date of this Decision and Direction of Election. Our unit determination is based, in part, then, upon the results of the election among the professional employees. However, we now make the following findings in regard to the appropriate unit: 1. If a majority of the professional employees vote for inclusion in the unit with nonprofessional employees, we find that the following will consti- tute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act: All regular full-time and regular part-time employees of the Minneapolis Society of Fine Arts, including professional employees, but ex- cluding employees in the Children's Theatre Company and Minneapolis College of Art and Design, managerial employees, confidential em- ployees, engineers, guards, and supervisors as defined in the Act. 2. If a majority of the professional employees do not vote for inclusion in the unit with nonprofes- sional employees, we find that the following two groups of employees will constitute separate units 376 DECISIONS OF NATIONAL appropriate for the purposes of collective bargain- ing within the meaning of Section 9(b) of the Act: All full-time and part-time employees- of the Minneapolis Society of Fine Arts, but excluding employees in the Children's Theatre Company and Minneapolis College of Art and Design, manageri- al employees, confidential employees, engineers, professional employees, guards, and supervisors as defined in the Act. 12 In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their addresses which may be used to communicate with them. Excelsior Underwear Inc., 156 NLRB 1236; NLRB v. Wyman-Gordon Co., 394 U S. 759 Accordingly, it is hereby directed that an election eligibility list, containing the names and addresses of all the eligible voters, must be filed LABOR RELATIONS BOARD All professional employees of the Minneapolis Society of Fine Arts, but excluding professional employees in the Children's Theatre Company and Minneapolis College of Art and Design, and all other employees and supervisors as defined in the Act. [Direction of Election 12 omitted from publication.] by the Employer with the Regional Director for Region 18 within 7 days of the date of this Decision and Direction of Election . The Regional Director shall make the list available to all parties to the election. No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances. Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed.