The Julliard School

National Labor Relations Board - Board Decisions

Jan 7, 1974

208 N.L.R.B. 153 (N.L.R.B. 1974)

JUILLIARD SCHOOL 153
The Juilliard School and Theatrical Protective Union
Local No. 1, International Alliance of Theatrical
Stage Employes and Moving Picture Machine
Operators of the United States and Canada,
AFL-CIO, Petitioner . Case 2-RC-16037
January 7, 1974
DECISION AND DIRECTION OF
ELECTION
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a
hearing washeld before Hearing Officer Haywood E.
Banks. Following the hearing, and pursuant to
Section 102.67 of the National Labor Relations
Board Rules and Regulations and Statements of
Procedures, Series 8, as amended, by direction of the
Regional Director of Region 2, the case was
transferred to the Board for decision. Briefs were
filed by the Juilliard School' and Theatrical Protec-
tive Union, Local No. 1, International Alliance of
Theatrical Stage Employes and Moving Picture
Machine Operators of the United States and Canada,
AFL-CIO.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations 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 finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in the case the Board makes
the following findings:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. We find that the Petitioner is a labor organiza-
tion within the meaning of the Act who claims to
represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of the employees of the
Employer within the meaning of Sections 9(c)(1) and
2(6) and (7) of the Act.
4. The Petitioner seeks a unit of all stagehands
(electricians, carpenters, and property men working
on stage and/or in shops) employed by the Employer
excluding students, guards, watchmen, and supervi-
sors as defined in the Act.
The Juilliard School, herein referred to as the
Employer, urges the Board to dismiss the petition on
the ground that no unit is appropriate, since all of the
individuals sought to be represented are either
supervisors or casuals. Alternatively, the Employer
contends that the unit requested is inappropriate
because it would fragment its stage department. The
parties disagree as to the supervisory status of two
employees and, if these two employees are found to
be supervisors, whether their participation in union
activities is grounds for dismissing the petition or
delaying the election. Lastly, the parties disagree as
to what eligibility formula should be adopted if the
Board finds an appropriate unit.
The Employer is a nonprofit, degree granting,
educational corporation chartered by the regents of
the University of the State of New York in 1926. It
maintains its principal office at the Lincoln Center in
New York City. The Employer functions as an
undergraduate and graduate school of music, drama,
and dance. Its academic community consists of more
than 200 faculty members and over 1,400 students.
To supervise and direct the technical and mechani-
cal work required by the operatic, musical, dance,
and dramatic productions, the Employer has em-
ployed a director of the stage department. The
director supervises what the Employer refers to in its
brief as a permanent staff of five men. This staff is
assisted in its work by a group of employees whose
numbers fluctuate from 0 to approximately 155
depending upon the phase of the academic year and
the number of productions being presented. These
support personnel, whom the Employer refers to as
"per diem employees," work in four separate areas or
shops at Juilliard. The parties agree that student
employees are not to he included in any unit found
appropriate.
The costume shop is responsible for executing and
refurbishing all designed costumes, including shoes,
hats. wigs, dresses, and suits. There are between 1 to
60 employees in this shop among the following
classifications: costume shop assistant, costume
finisher, tailor, draper, milliner , wardrobe mistress,
costume shopper, makeup man, hairdresser, and
dresser.
The property shop handles the purchasing, build-
ing, renting, maintaining , and storing of all props.
There are between I to 12 employees in this shop
depending upon the need in the following classifica-
tions: prop shopper, prop sculptor, prop builder,
prop upholsterer, prop finisher, caster or moldmaker,
prop laborer, and prop man.
The electric shop is responsible for the mainte-
nance and functioning of all mechanical apparatus.
There are between 1 to 20 employees involved in this
work.
The carpentry shop is responsible for maintaining
1 The Employer has requested oral argument this request is hereby
denied as the record and briefs adequately present the issues and positions
of the parties.
208 NLRB No. 19
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shop facilities, tools, materials, hardware, and floors.
Employees in this shop are involved in the building,
maintenance, repairing, and storing of the scenic
elements used in the Employer's productions. There
are between I to 60 employees involved in these job
functions depending on the need. Painters also work
in the carpentry shop on an as need basis. Their
number ranges between zero to six.
The Petitioner seeks a unit of carpentry, electrical,
and property employees. The petition does not
include the costume shop personnel. However, at the
hearing the Petitioner expressed an interest in a unit
including the costume personnel if the Board found
such to be the appropriate unit.
The Employer contends that there is no sufficient
nucleus of employees which the Board can appropri-
ately find a unit. The Employer contends that the
"per diem" employees are casuals. They work only
on a need basis, and, according to the Employer,
they have no expectation of future employment with
the School. The "per diems" receive an hourly rate
while permanent employees are on salary. They are
not covered by Juilliard's major medical plans as are
most of the permanent employees. They do not come
under the School's group life insurance policy or its
pension plan, and the identification card they receive
is stamped "Temporary Employee."
Notwithstanding the above, the record shows that
many of these employees work for periods of time
which indicate repetitive employment and which
permit them reasonably to anticipate reemployment
in the near or foreseeable future. The Employer hires
from the same labor market and some of these "per
diems" work for as long as 35 weeks. Although it
uses no rehire list, we find that the Employer makes a
practice of hiring employees who are experienced
with the facilities at Juilliard and have proven
through past performance their capacity to perform
their job functions. The record shows that all "per
diems" are hired as needed, generally between
October and May, are paid an hourly wage, work
essentially the same hours, may use some of the same
tools as others in the stage department, and work in
close proximity during productions. They receive free
tickets to the Employer's productions, have access to
the food and locker facilities, as well as the music
and reading libraries. We find therefore that they
possess sufficient interest in employment conditions
2 Queen City Railroad Construction, Inc, 150 NLRB 1679; Daniel
Construction Company Inc., 133 NLRB 264; and Cavendish Record
Manufacturing Company, 124 NLRB 1161.
3 Such a contention could not be made in any event since the record in
the companion case, The Juilhard School, 2-RC-16154, which we hereby
officially notice, indicates that the overwhelming majority of costume shop
personnel are notjourneymen , are not licensed, and have never participated
in a formal apprenticeship program.
to warrant their inclusion in the unit we find
appropriate.2
The Employer also contends that, if the "per diem"
employees are found by the Board to he entitled to
representation, such representation must occur with-
in the framework of a bargaining unit which
encompasses the entire stage department. Petitioner,
on the other hand. has petitioned for a unit which
includes the entire stage department except the
costume shop personnel.
Unlike our dissenting colleague, we find that only a
departmentwide unit is appropriate. Member Fan-
ning and the Petitioner do not seek to exclude
costume shop personnel in order to preserve craft
skills; 3 rather, the exclusion of such personnel is
sought in order to preserve historical patterns of
representation in the New York City "legitimate
theatre" industry.'i We find such reasoning unpersua-
sive since, in our view, Juilliard's stage department
and New York City's legitimate theatre industry are
just not comparable with respect to those characteris-
tics relevant to the determination of an appropriate
pattern of representation.
Unlike the legitimate theatre, Juilliard's theatrical
productions are not extravagant commercial under-
takings which may run for many weeks and which
employ large, highly experienced casts. Instead,
Juilliard's stage department and the productions it
sponsors are designed to serve as a training adjunct
to the School's nonprofit educational function. Such
productions provide students with an opportunity to
apply both on stage and off stage that which they
have been taught in the classroom. Accordingly,
Juilliard stages relatively few productions each year
which run for three or four performances at the most.
The fundamental differences between the commer-
cial nature of the productions created by the
legitimate theatre, and the educational nature of the
productions created by Juilliard's stage department,
are clearly reflected in the methods utilized in putting
their performances together. In both, the backstage
work is divided into the four categories described
above-electrical, property, carpentry, and costume.
In the legitimate theatre industry, much of this
work-and virtually all of the costume work-is not
done at the theatre at all but is contracted out to
independent shops which utilize their own employees
and which perform identical specialized services for
all theatres in the city. When the assigned work is
4 Although Petitioner attempts to bolster its position by pointing out that
it has a contract with every legitimate theatre in the greater New York City
area, none of which covers costume employees, we note that in a recent
Board decision , Medion, Incorporated, 200 NLRB No 145, the International
Alliance of Theatrical Stage Employees , with which the Petitioner is
affiliated , successfully urged the Board to approve a much wider unit,
including costume employees.
JUILLIARD SCHOOL
completed, the end product is sent to the theatre for
the performances. Thus, given this method of staging
a production. it is not surprising that union repre-
sentation has developed along specialized shop lines
rather than on a theatre-by-theatre basis encompass-
ing all employees who participate in staging a
production.
At Juilliard, on the other hand, the productions are
organized in a manner more reflective of their
functions as a training vehicle for students. In order
to provide students with maximum exposure to all
facets of staging productions, none of the work is
contracted out. All work is performed at the theatre
itself under the overall direction of an individual who
enjoys faculty status. The fact that all of the work is
performed under a single roof in and around the
stage area has resulted in an overlapping of responsi-
bilities between the four shops not characteristic of
legitimate theatres, and in many instances has given
rise to an assembly-line type operation. In fact, there
have been instances in which employees in the
carpentry and property shops have reported directly
to the head of the costume shop. Obviously, this
integration of operations, and the community of
interest which it thereby creates among the employ-
ees, would not be possible under the procedures
which currently prevail in the legitimate theatre
industry.
In our view, the mere fact that both Juilliard and
the legitimate theatre contribute to New York City's
entertainment industry does not require us to ignore
the fundamental differences underlying the nature of
those contributions. Accordingly, we finds that
under the circumstances of this case the appropriate
unit under Section 9(b) of the Act is:
All stage department employees including all
electricians, carpenters, and property men work-
ing on stage or in shops and all employees
engaged in the manufacture, repair, and altera-
tion of costumes including makeup men, hairdres-
sers and dressers, and all scene painters; exclud-
ing students, guards, watchmen and supervisors
as defined in the Act.
There remains to be settled the status of employees
Maher and Mulvain . The Employer contends that
5 The petition herein will not be dismissed as the Petitioner has expressed
an interest in the unit found appropriate
6 It is unnecessary for us to resolve the supervisory status of Maher and
Mulvain for purposes of considering the Employer's contention that their
participation in union activities constitutes sufficient grounds for dismissing
the petition or delaying the election . The record indicates that their union
activities consisted primarily of peaceful picketing on a picket line
established after the filing of the petition herein . In view of the limited scope
155
both are supervisors, Petitioner contends they are
employees.
Maher and Mulvain head the electrical and
carpentry shops respectively. The Employer contends
that they have and exercise full authority to set
schedules, assign work, grant leaves of absence and
time off, reprimand, and discharge experienced "per
diems" and decide which "per diems" should be laid
off. According to the Employer's witness, they
effectively recommend raising salaries, increasing the
work force by hiring "per diems," adjust grievances,
submit timesheets, and purchase materials and
supplies on their own initiative.
The Petitioner argues that these two employees
work full time doing the same work and wearing the
same clothes as other carpenters and electricians and
earning practically the same weekly salary as the
"per diems." These two individuals testified that they
receive overtime pay, have never been advised that
they were supervisors, and have never attended
supervisors' meetings. The Petitioner contends that
the evidence shows that both men act as conduits in
the hiring and laying off of employees, but that they
never take action on their own initiative or effective-
ly recommend same.
After carefully reviewing the entire record we
conclude that the evidence on which to base a
decision with respect to the supervisory status of
these two employees is conflicting. Consequently, we
shall vote these two employees subject to challenge.6
The parties are also in disagreement with respect to
voting eligibility requirements. The Petitioner re-
quests a standard that would allow to vote all
employees who have worked 30 or more days in each
of the last two "seasons" of the Employer. The
Employer suggests a standard that would allow all
employees who have worked 4 days over a 2-year
period to vote.?
Upon consideration of the number and length of
the Employer's stage productions and the employ-
ment pattern resulting therefrom, we believe that the
most useful formula would be one that accords
voting eligibility to all employees who have been
employed by the Employer during two productions
for a total of 5 working days over a 1-year period, or
who have been employed by the Employer for at
least 15 days over a 2-year period.
of their activities , and in view of the open opposition of the Employer to
Petitioner 's organizing efforts, we find that the conduct of Maher and
Mulvain would not warrant a deviation from our normal election
procedures even if they were determined to be supernsors Cf. WKRG-TV,
Inc, 190 N LRB 174, enfd . 470 F.2d 1302 (C.A. 5, 1973).
r The formula requested by the Employer was amended in its brief, filed
in Case 2-RC-16154, to read as above.
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[Direction of Election8 and Excelsior footnote
omitted from publication.]
MEMBER FANNING, dissenting in part:
I agree with the majority finding that the so-called
"per diem" employees have a sufficient degree of
interest in employment conditions in the stage
productions of this professional school to warrant
their inclusion in bargaining units. However, I
believe that the broad unit found appropriate herein
and the consequent dismissal of the petition in Case
2-RC--16154 for a separate costume unit deviate
from a longstanding pattern of collective bargaining
in this industry.
In the commercial theatre industry costume work is
generally contracted out to businesses which do
exclusively such work and are not connected with
specific theatres. Consequently, employees of those
independent shops have been represented separately
from the stage department employees of the theatres.
In fact, the Petitioner in Case 2-RC-16154, a
theatrical costume local of the ILGWU, represents
employees in many of these shops, and the Petitioner
herein, the stagehands local of 1ATSE. states in its
brief that it has a contract for representing the stage
department employees as a separate unit with every
legitimate theatre in the Greater New York City
area.9
The Employer's stage and equipment facilities are
large and sophisticated. On the level of the opera
stage, level B. are the carpentry shop, electrical shop,
and property shop, functioning as a group of
employees distinct from those of other employees of
the School. This grouping has long existed as the
representation pattern of stage carpenters, electri-
cians, and property men in the theatrical industry.io
It is the existing contract unit at the nearby
Metropolitan Opera Company, which like Juilliard is
a nonprofit organization housing all four stage
department shops under one roof.
Contrary to the majority belief that all work is
performed "in and around the stage area" most
costume work is performed in the costume shop on
level D, two floors above the stage. The costume
shop's hand and machine sewers, milliners, tailors,
bootmakers, etc., have skills totally unlike those of
carpenters, electricians, and stage property men.
There is separate supervision for the costume shop
and separate hiring for it. Unpersuasive, indeed, is
s As the Petitioner's original showing of interest was for a unit smaller
than the unit in which an election is being directed , the Direction of
Election is subject to an administrative determination by the Regional
Director for Region 2 of the Petitioner's interest in the unit found
appropriate herein.
4 The majority relies on Medium, Incorporated, 200 NLRB No 145.
wherein the international Alliance of Theatrical Stage Employees agreed
with the adoption of a broad unit including some wardrobe and makeup
the majority's reliance on lack of evidence of craft
skills or of traditional departmental status, on close
proximity of all four shops instead of just the three
stagehands shops, and on minimal overlapping of
duties between costume employees and stagehands.
The majority has adopted the Employer's ambigu-
ous argument that stage department work at Juilliard
has in many instances given rise to an "assembly-line
type operation." Apparently this refers to the few
occasions when employees of different shops will
work independently on a particularly technical or
elaborate prop. This is nothing more than employees
of separate departments performing their own skills
and does not support the majority's findings that it
indicates an "overlapping of responsibilities."
The majority's reliance as evidence of employee
integration upon the belief that employees in the
"carpentry and property shops" have reported
directly to the head of the costume shop is misplaced.
The costume supervisor testified in Case 2-RC-
16154 that he could not remember a carpenter
or property department employee ever coming to the
costume shop and performing work on the manufac-
ture, repair, or maintenance of costumes. The record
indicates a few instances where a prop was made to
the costume supervisor's specifications, and the
costume supervisor testified as to one instance when
he told carpenters the dimensions for canes and
shoes made for the costume department. I do not
believe this type of incidental instruction can be
relied on to support a finding of employee integra-
tion between the costume shop and the carpentry
and prop shops.
The productions of the School, though sponsored
academically. take place in the heart of the New -
York entertainment industry-except when on tour
-and are a part of it. For needed production
personnel the School draws upon the industry's
employees. I can see no reason to depart from the
established pattern of bargaining by insisting that
costume employees be bargained for together with a
separately appropriate unit of stage carpenters, stage
electricians, and stage property men. Ultimately the
effect of this decision ignoring well-established
bargaining patterns will be felt by other professional
schools of the performing arts located in urban
centers. Costume employees who divide their time
between commercial work and school work will have
employees That case involved a different industry and a unit agreed upon,
in relevant part As the unit issue was not litigated in Medion, it is
questionable whether the factors present in that case are comparable to
those present in the instant case
is The Board has had occasion to recognize this type of unit in the
television industry National Broadcasting Company, Inc. 89 NLRB 1289,
1305
JUILLIARD SCHOOL 157
to belong to an additional union , not one which has the broad unit determination made herein, I would
traditionally represented their separate skills. find appropriate the separate units requested, here
In view of the persuasive factors militating against and in Case 2-RC-16154.