Minneapolis Society of Fine Arts

National Labor Relations Board - Board Decisions

Nov 30, 1971

194 N.L.R.B. 371 (N.L.R.B. 1971)

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.