The Colonial Williamsburg Foundation

718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Colonial Williamsburg Foundation I and Hotel, Restaurant & Cafeteria Employees Union, Local 23, AFL-CIO, Petitioner Case 5-RC-9561 June 11, 1976 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Donald G Rider on January 14 and 15 and February 19 and 20, 1976 Following the hearing, and pursuant to Section 102 67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Regional Director transferred this case to the Board for deci- sion Thereafter, the Employer and the Petitioner filed briefs 2 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel The Board has reviewed the Hearing Officer's rul- ings made at the hearing and finds they are free from prejudicial error The rulings are hereby affirmed Upon the entire record in this proceeding, includ- ing the briefs filed by the parties, the Board finds 1 The Employer is a Virginia nonstock corpora- tion organized exclusively for charitable and educa- tional purposes in connection with restoration and preservation of the historical areas in and around Colonial Williamsburg The record reveals that it has gross revenues in excess of $35 million and it was stipulated that it makes purchases exceeding $50,000 from outside the Commonwealth of Virginia The Employer was organized in 1926 It was reor- ganized in 1970 and the name was changed from Co- lonial Williamsburg, Inc, to the Colonial Williams- burg Foundation (hereinafter the Foundation or the Employer) Prior to 1970, a wholly owned subsidiary, Williamsburg Restoration, Inc, operated the hotel and restaurant facilities and provided the mainte- nance for all the properties It was operated as a business corporation for profit and was subject to the income tax laws As a result of the reorganization, the assets and activities of Williamsburg Restoration, Inc, were transferred to the Foundation and the for- mer was dissolved The "Historic Area" is comprised of 173 of the i The Employer's name appears as amended at the hearing 2 As the record adequately presents the positions of the parties, the Employers request for oral argument is hereby denied Foundation's 220 acres Eighty-eight original build- ings within the area have been restored and over 40 other structures have been constructed on their origi- nal sites Within the area the Foundation also owns 11 exhibition buildings, 18 craft shops, 2 general stores, and 3 historic taverns which are used as res- taurants serving the general public It operates three large hotel facilities and the attendant restaurants, a conference center, and golf courses Outside the his- toric area, the Foundation operates the Abby Al- drich Rockefeller Folk Art Museum and Carter's Grove Plantation which is an operating colonial plantation The Foundation's senior vice president testified that the entire area could best be described as an "outdoor museum " The Employer contends that the Board should de- cline to assert jurisdiction on several grounds First, it contends that it does not fit into any jurisdictional classification of institution previously considered by the Board It contends that it is neither a museum, educational institution, nor charitable organization as traditionally defined by the Board, but is a unique organization engaged in carrying out a special na- tional purpose Secondly, the Employer contends that there is such a substantial nexus between the Foundation, the Federal Government, and the Commonwealth of Virginia that the Board should decline to assert juris- diction This contention is based in part on two acts of Congress extending protection over Colonial Wil- liamsburg, the Colonial National Historical Park Act of 1930 3 and the National Historic Preservation Act of 1966 4 The former provides for "the preservation of the historical structures and remains thereon for the benefit and enjoyment of the people" and the latter provides for the protection and enhancement of certain historic areas including Colonial Williams- burg The 1966 act establishes an Advisory Council to advise the President and Congress on matters in- volving historic preservation and requires that Feder- al agencies having jurisdiction over a "proposed Fed- eral or federally assisted undertaking in any state" or having authority "to license any undertaking" shall take into account the effect on covered historic areas and shall "afford the Advisory Council on Historic Preservation a reasonable opportunity to com- ment with regard to such undertaking " 5 The rules of the Advisory Council,' the Employer contends, de- fine undertaking in the broadest sense and expressly include the making of policy Hence, the Employer contends, at the very least, the 1966 act requires the Board to consult with the Advisory Council before 316USC §81,etseq 416USC §470, et seq 5 16 U S C § 470f 6 36 C F R 800 3(c) 224 NLRB No 115 THE COLONIAL WILLIAMSBURG FOUNDATION asserting jurisdiction It also contends that there is a special relationship between the Foundation and the Commonwealth of Virginia as evidenced by the fact that the General Assembly passed resolutions ap- plauding the work of John D Rockefeller, Jr, for his contributions and endorsing the Colonial National Historic Monument Act In arguing that assertion of jurisdiction would encroach on governmental rela- tions, the Employer cites Temple University, of the Commonwealth System of Higher Education,' wherein the Board declined to assert jurisdiction over a uni- versity established and operated "as an instrumental- ity of the Commonwealth to serve as a State-related university in the higher education system of the Commonwealth " Lastly, the Employer contends none of its activi- ties can be considered commercial in the generally accepted sense, as they are all functionally related to its educational purposes and are local in character It argues, for example, that the hotels and restaurants are for the convenience of the visiting public and that the convention center is needed to attract off-season business that enables the Employer to better support the facilities Petitioner contends that Board decisions regarding art museums should be controlling herein, that the Foundation has substantial commercial activities, and that its operations have a substantial impact on commerce Petitioner contends that the assumption of jurisdiction in this case would neither violate nor be inconsistent with the purposes of the Colonial Na- tional Historical Park Act of 1930 or the National Historic Preservation Act of 1966 We find no governmental nexus substantial enough to cause us to decline to assert jurisdiction over the Employer We agree with Petitioner that the legislation cited by the Employer is not inconsistent with the Board's assertion of jurisdiction The stated purpose of these acts is in connection with the pro- tection and preservation of the covered real estate, buildings, and archeological remains Moreover, in Temple University, supra, the case re- lied on by the Employer, the Board declined to assert jurisdiction because it found a "unique relationship" between the University and the Commonwealth of Pennsylvania and limited its decision to the "special circumstances of that case " The Board concluded that Temple University, although private in form, had become a quasi-public institution It was, by leg- islation, designated an "instrumentality" of the Com- monwealth and expressly made a "State related uni- versity", the State owned most of the physical plant, one-third of the trustees were appointed by Com- 194 NLRB 1160 (1972) 719 monwealth officials, the Commonwealth played a "substantial, if not controlling," part in the University's financial affairs, with concomitant con- trol over its activities, and it was a "public employer" under Pennsylvania's Public Employees Relations Act These circumstances are not present in the instant case In short, the Foundation is in no sense quasi- public, but is a private institution having total finan- cial and administrative independence from any gov- ernmental authority We find no such governmental connection as would prevent the Employer from hav- ing complete authority over its own labor relations so as to enable it to satisfy bargaining obligations under the Act 8 We believe that the Foundation's substantial com- mercial activities require assertion of jurisdiction, re- gardless of its contention that they are intimately re- lated to its charitable and educational purposes The Board has previously asserted jurisdiction over other kinds of nonprofit institutions which have associated commercial activities, even though they help to sup- port and further the institutions' primary purposes, whether they are religious, cultural, charitable, or educational 9 We fail to see how the activities of the Foundation are, as it contends, local in character It has about 2-1/2 million visitors each year, an operating income exceeding $35 million, and over 3,000 employees Clearly its operations have a substantial impact on interstate commerce We agree with Petitioner's contentions that the Employer is in many ways similar to an art museum or, as in The Helen Clay Frick Foundation, 217 NLRB 1100 (1975), contributes to the cultural and educa- tional values of the community In several cases the Board, applying the principles enunciated in Cornell University,10 has asserted jurisdiction over private nonprofit art galleries, having gross revenues over $1 million and having associated activities similar to those of the Foundation, on the premise that they are performing as an adjunct of the educational system 11 Those decisions are applicable here, accordingly, as the Employer's gross income of over $35 million ex- ceeds any discretionary standard we might apply, we find that the impact of the Employer's operations on 8 Herbert Harvey Inc v NLRB , 424 F 2d 770, 778 (C A D C, 1969), enfg 171 NLRB 238 (1968), N L R B v E C Atkins & Company, 331 U S 398, 412-414 (1947) Marianas Stevedoring & Development Co Inc, 182 NLRB 1043 (1970) 9 Catholic Charities of Buffalo, New York, lnc, 220 NLRB 9 (1975), Ro man Catholic Archdiocese of Baltimore, Archdiocesan High Schools, 216 NLRB 249 (1975) Port Arthur College, 92 NLRB 152 (1950) 10 183 NLRB 329 (1970) ii The Helen Clay Frick Foundation supra, Trustees of the Corcoran Gal lery of Art 186 NLRB 565 (1970), Pacifica Foundation-KPFA, 186 NLRB 825 (1970) 720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD commerce is sufficient to warrant assertion of juris- diction herein, and it will effectuate the purposes of the Act to do so 12 2 The Foundation contends that Local 23 has not been shown to be a viable existing labor organization and that the International Union should be deemed the real Petitioner in this case It bases its contention on the fact that the Local was receiving "administra- tive assistance" from the International, that the filing of the petition and all other matters were handled by an International organizer, and that the Local has no regular officers Petitioner contends that these facts have no bear- ing on Local 23's status as a labor organization and as the proper petitioner, and that Local 23 is in fact a viable existing labor organization The record reveals that Local 23 maintains its principal office in Norfolk, Virginia, with an addi- tional office on Richmond Road in Williamsburg, Virginia, that it in fact represents employees, handles grievances, and has several collective-bargaining agreements, that it is in "administrative assistance" 12 Charles Circle Clinic, Inc, 215 NLRB 382 (1974) because it has no regular officers at the moment, but has only an acting secretary-treasurer On the basis of these facts, we find that Petitioner is a labor organization claiming to represent certain employees of the Employer and is the proper Peti- tioner herein 3 A question affecting commerce exists concern- ing the representation of employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act 4 The parties stipulated and we find that the fol- lowing employees constitute an appropriate unit for collective bargaining within the meaning of Section 9(b) of the Act All full-time and regular part-time construction and maintenance division employees employed by the Employer at Williamsburg, Virginia, but excluding office clerical employees, managerial employees, professional employees, confidential employees, guards, and supervisors as defined in the Act, and all other employees of the Founda- tion [Direction of Election and Excelsior footnote omitted from publication]