The Helen Clay Frick Foundation

National Labor Relations Board - Board Decisions

May 23, 1975

217 N.L.R.B. 1100 (N.L.R.B. 1975)

1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Helen Clay Frick Foundation and International
Union, United Plant Guard Workers of America,
Amalgamated Plant Guards Local 502 (UPGWA),
Petitioner . Case 6-RC-7066
May 23, 1975
DECISION AND DIRECTION OF ELECTION
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a hearing
was held before Hearing Officer Marc Antis of the
National Labor Relations Board. Following the hear-
ing and pursuant to Section 102.67 of the National
Labor Relations Board Rules and Regulations and
Statements of Procedure, Series 8, as amended, the case
was transferred to the Board for decision. The Em-
ployer and Petitioner filed briefs.
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 that they are free
from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, the Board finds:
1. The Employer is a private, nonprofit foundation
which operates The Frick Art Museum, involved
herein. The Employer was created by the deed of Helen
Clay Frick in 1947. The deed provides for the establish-
ment of a trust "exclusively for religious, charitable,
scientific, literary or educational purposes and for the
prevention of cruelty to children or animals" The Em-
ployer was granted tax exempt status by the Internal
Revenue Service in 1948. The Mellon Bank, N.A. of
Pittsburgh, Pennsylvania, the corporate trustee, and
five individual trustees govern the Employer.
In the late 1960's the Employer, on land leased from
the city of Pittsburgh, constructed The Frick Art Mu-
seum which was opened to the public in 1970. Within
the museum are numerous works of art, including
paintings, sculptures, and silverware, primarily of the
Renaissance era. The museum has a book value of ap-
proximately $3,400,000. The value of the museum's art
collection is between $2 and $3 million. In the course
of a year, 15,000 people visit the museum or attend
concerts or lectures there. The Employer's entire em-
ployee complement consists of the museum's 15 full-
time employees, including the 8 guards sought herein,
2 guard supervisors, 2 maintenance employees, office
personnel, and curators.
The museum is open to the public free of charge
Tuesdays through Sundays. It is closed for the month
of August and on certain holidays. The Museum annu-
ally sponsors about 10, musical concerts featuring
chamber music and 6 art lectures, which are held in a
small auditorium having a capacity of 170. Because of
the limited number of seats, application must be made
for tickets but the latter are distributed without charge.
Available at the museum are a limited number of
souvenirs for purchase, including three postcards, two
art booklets, and a color photograph of the Madonna
and Child. The museum has no formal educational
program., It has no art rental program, sells no mem-
berships, and receives no contributions other than from
the Employer and Miss Frick.
Walter F. Cooley, Jr., one of the individual trustees
of the Employer and the sole witness at the hearing,
stated that the gross revenue of the Employer is in
excess of $1 million per year. The principal income of
the Employer is derived from two trusts, a 1933 trust
from which it derived income in 1973 of $679,171, and
a 1931 trust from which it received income in 1973 in
the amount of $306,236. The Employer also received in
1973 about $5,000 from an investment of the proceeds
from a real estate gift. Finally, the receipts from its sale
of souvenirs amounted to $368.85 in 1973.
In 1973, the expenditures of the Employer included
$293,289 for operating expenses such as electricity, wa-
ter, 'sewage, office equipment, printing and mailing,
lecturers and musicians, payroll, and insurance. In ad-
dition, in 1973, the Employer acquired six works of art
valued in excess of $191,691, which were purchased
outside the Commonwealth of Pennsylvania. The Em-
ployer also made a $210,000 contribution to the Frick
Art Reference Library in New York City, a separate
institution from the Employer, a $100,000 contribution
to the Westmoreland Sanctuary for, the construction of
a nature museum, and $180,000 in contributions to
other authorized charities such as the United Fund and
the Red Cross.
The Employer urges the Board to decline to assert
jurisdiction over it because, it contends, the Employer's
activities are charitable, it participates in no commer-
cial activities which augment its income, except on a
de minimis basis, and its expenditures, except for occa-
sional art purchases, are local or intrastate in nature.
Finally, the Employer asserts that the rule adopted by
the Board in Cornell University, 183 NLRB 329 (1970),
is not applicable as the Employer is not an educational
organization. We disagree.
In Cornell University, supra, the Board announced
that it would assert jurisdiction over private colleges
and universities, although they are nonprofit, if their
operations are such as to have a substantial impact on
commerce. Subsequently, the Board applied the Cor-
nell standard to art museums because the Board deter-
mined that these museums were performing as an ad-
217 NLRB No. 182
HELEN CLAY FRICK FOUNDATION
junct to the educational system .' As was said in
Trustees of the Corcoran Gallery of Art, supra at 566:
The Employer's permanent art collection , special
exhibitions , Sunday concerts , and lectures consti-
tute informal educational programs for the ad-
vancement of various art forms. -
This policy was further emphasized in Pacifica
Foundation-KPFA, 186 NLRB 825, 826 (1970):
As we have extended our jurisdiction over private
colleges and universities, there remains no sub-
stantial justification for withholding the exercise
of the Board's powers over employers whose oper-
ations are adjunctive to the educational system.
Moreover, we note that we have previously asserted
jurisdiction over nonprofit symphony orchestras,
which like the art museum herein contribute to the
cultural and educational values of the community.2
Accordingly, there is no substantial justification for
withholding the exercise of the Board's powers over the
Employer herein.
From the facts set out above, including the Em-
ployer's admitted gross revenues in excess of $1 mil-
lion, and its significant expenditures for out-of-state
goods, 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. Petitioner claims to represent certain of the Em-
ployer's employees.
3. A question affecting commerce exists concerning
the representation of certain of the Employer's em-
ployees within the meaning of Section 9(c)(1) and Sec-
tion 2(6) and (7) of the Act.
3. The parties stipulated and we find that the follow-
ing employees of the Employer constitute a unit appro-
priate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act:
All security guards employed by the Employer at
the Reynolds Street Museum, excluding all other
employees, office clerical employees, professionals
and supervisors as defined in the Act.
[Direction of Election omitted from publication.]3
MEMBER KENNEDY, dissenting:
The majority has decided to assert jurisdiction of this
small art museum whose entire income of about
$300,000 is received from the Helen Clay Frick
Foundation, a charitable foundation. I dissent.
I Trustees of the Corcoran Gallery of Art, 186 NLRB 565 (1970); Min-
neapolis Society of Fine Arts, 194 NLRB 371 (1971)
2 National Labor Relations Board, Other Rules, Series 8, as amended, Part
103, Subpart A-Jurisdictional Standards , Sec. 103 2
3 [Excelsior In. omitted from publication.]
1101
The Frick Art Museum, which-is alone involved in
this proceeding, is located in Pittsburgh, Pennsylvania.
It has a staff of 15 employees, 10 of whom are security
guards whom Petitioner seeks to represent. The mu-
seum is open to the public free of charge. In addition
to exhibiting its art collection which is valued at from
$2.5 to $3 million, the museum sponsors about 6 lec-
tures and 10 concerts per year for which it expends less
than $10,000. The lectures and concerts are also open
to the public free of charge. The museum conducts no
art classes, art school, or educational programs.
The cost of operating and maintaining the museum
in 1973 was a little less than $300;000. In the same year,
the museum expended $191,691 for new works of art
in no more than six transactions in London and New
York. The expenses of the museum are funded practi-
cally entirely by the Helen Clay Frick Foundation, a
charitable trust created by Miss Helen Clay Frick un-
der the laws of Pennsylvania for religious, charitable,
scientific, literary, or educational purposes, and for the
prevention of cruelty to children or animals. In 1973,
the Foundation had an income slightly in excess of $1
million derived principally from two trusts established
by Miss Frick. The Foundation does not operate any
facility other than the museum and its only other activ-
ity is making grants to exempt organizations for chari-
table purposes.
It is difficult to envisage a more locally oriented
enterprise than this small art museum created by Miss
Frick for the benefit of the people of Pittsburgh. The
majority decision refers to two cases-Trustees of the
Corcoran Gallery of Art, 186 NLRB 565, and Min-
neapolis Society of Fine Arts, 194 NLRB 371-as au-
thority for the assertion of jurisdiction in this case.
Both of those cases are distinguishable. Both involved
employers which not only were considerably larger
than the museum in this case but also were commercial
or semicommercial in nature. Thus, in Corcoran, the
employer charged admission for entrance to the art
gallery on certain days of the week, operated an art
school for which it required students to pay tuition, had
a staff of about 129 employees, and had a gross annual
income of more than $1 million, of which approxi-
mately half was received from tuition. In Minneapolis
Society of Fine Arts, the employer operated both a mu-
seum and a college of art and design. The college was
a fully accredited 4-year institution which offered in-
struction toward the degree of bachelor of fine arts. It
had more than 400 students, of whom approximately a
third were from outside the State of Minnesota. Fi-
nally, it had an annual budget in excess of $3 million
and spent almost $1 million in out-of-state purchases.
In contrast, in the present case, the museum conducts
no art classes, does not charge admission, has no aspect
of a commercial enterprise, and its total annual income
1102 DECISIONS OF NATIONAL LABOR RELATIONS' BOARD
is well below the level which the Board has set for the
discretionary exercise of jurisdiction in the case of edu-
cational institution ,'- or for symphony orchestras,' as-
suming that the museum is analogous to a symphony
orchestra , as implied by the majority decision.
It is true that the Foundation has an income in excess
of $1 million in 1973 but , as pointed out above , except
for the ' operation of the museum , the Foundation en-
gages in no other operations . Its income , except for
expenditure for the operation of the museum, is dis-
bursed in the form of contributions to various charities.
I think it is improper under these circumstances to take
a Sec. 103 1, National Labor Relations Board Rules and Regulations,
Series 8, as amended.
5 Sec 103 2, id.
into account the entire income of the 'Foundation, in
determining whether to assert jurisdiction of the mu-
seum, as if the foundation in its entirety were engaged
in operating a commercial enterprise.
Both museum and the Foundation are nonprofit en-
terprises engaged in operations which are noncommer-
cial in nature . Their impact on interstate commerce is
minimal . I believe that the limited Board funds and
staff can be better utilized elsewhere . Accordingly, I
would dismiss the petition upon the ground that it
would not effectuate the policies of the Act to assert
jurisdiction of this Employer.'
6 See Mtng Quong Children's Center, 210 NLRB 899 (1974) (Member
Kennedy concurring; Member Fanning dissenting)