The Colonial Williamsburg Foundation

National Labor Relations Board - Board Decisions

Jun 11, 1976

224 N.L.R.B. 718 (N.L.R.B. 1976)

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]