The Museum of Fine Arts

National Labor Relations Board - Board Decisions

Jun 20, 1975

218 N.L.R.B. 715 (N.L.R.B. 1975)

THE MUSEUM OF FINE ARTS 715
The Museum of Fine Arts and Service Employees
International Union, Local 254, AFL-CIO. Case
AO-172
June 20, 1975
ADVISORY OPINION
This petition for Advisory Opinion was filed on
April 22, 1975, by the Museum of Fine Arts,
hereafter Petitioner, pursuant to Sections 102.98 and
102.99 of the Board's Rules and Regulations, Series
8, as amended, for a determination whether the
Board would assert jurisdiction on the basis of its
operations in commerce. Petitioner has submitted a
brief and an affidavit by its director in support of the
petition.
In pertinent part, the petition and affidavit allege:
1. There is pending before the Massachusetts
Labor Relations Commission, hereafter Commission,
a petition docketed as No. CR-3483, by Service
Employees International Union, Local 254, AFL-
CIO, hereafter SEIU, wherein SEIU has requested
that it be certified as representative of certain of
Petitioner's employees.
2. Petitioner is a nonprofit, private charitable
corporation located in Boston, Massachusetts, where
it operates an art museum and galleries, an accredit-
ed 4-year school of art, and a retail store for the sale
of prints, postcards, and similar items. It also
conducts art classes for children and adults, presents
film programs, publishes books, and engages in other
related activities. It was established by a special act
of the Massachusetts legislature with an expressed
purpose of "erecting a museum for the preservation
and exhibition of works of art, of making, maintain-
ing and exhibiting collections of such works, and of
affording instruction in the fine arts ...." 1
3. By affidavit of its director, Petitioner states
that during the fiscal year July 1, 1973, to June 30,
1974, its total gross' revenues, including operations
and income from its endowment fund, exceeded $7
million. Included in this figure is approximately
$1.41 million derived from operation of the School of
Art, an accredited private institution of higher
learning which offers a diploma in studio art after
completion of 4 years' study.2 Further, the sum
includes approximately $507,000 derived from the
operation of its retail store, which was patronized by
approximately 145,000 persons in the fiscal year.
1 Mass. Acts & Resolves 1870, Ch. 4, § 1.
2 Petitioner alleges that in the second semester of the 1974-75 academic
year there were 498 full-time enrollees and 376 part-time enrollees in the
school, of which approximately 300 were from outside Massachusetts.
8 SOU attaches a page of Petitioner 's 1974-75 catalogue as an exhibit,
which indicates, inter alia, that enrollment was approximately 450 rather
than the 498 alleged by Petitioner , and that certain classes are to be taken at
218 NLRB No. 106
About 30 percent of its sales, or about $169,000, are
made by out-of-state mail orders.
Petitioner's attendance during the fiscal year was
approximately 534,861 persons, for which an admis-
sion fee of $1.50 for adults was usually charged.
During the fiscal year, Petitioner purchased art
works costing approximately $1.6 million, most of
which were acquired from outside the Common-
wealth of Massachusetts. The value of its collection is
in excess of $100 million. It currently employs about
483 persons, and has a membership of approximately
13,226, many of whom reside outside the Common-
wealth of Massachusetts.
4. The Commission has made no findings with
regard to the above-mentioned commerce date.
5. Petitioner alleges that there is no other pro-
ceeding pending involving "this labor dispute"
before the Board.
6. SEIU has filed an answer to the petition, and
subsequently a statement of position. It admits that
Petitioner is a private, nonprofit, charitable corpora-
tion and that proceedings have been instituted before
the Commission, but denies Petitioner's allegations
as to the nature of its operations and their effect on
commerce. It also alleges that Petitioner was created
by statute and that the nexus between it and the
Commonwealth of Massachusetts is such that it
would not effectuate the policies of the Act for the
Board to assert jurisdiction. It also asserts that it only
seeks to represent certain employees of the Museum
Gallery, which is distinct from the School of Art, and
is an entirely local endeavor.
SEIU does not specifically deny the commerce
allegations set forth in the affidavit of Petitioner's
director, but rather only generally denies that
Petitioner's operations are of a type within Board
jurisdiction. In its statement of position, it asserts
that the Board should not rely on the commerce data
set forth in the affidavit of Petitioner's director, and
argues that certain figures regarding the School of
Art are questionable.3 SEIU also reasserts its
contention that the operation of Petitioner is essen-
tially local in nature.
On the basis of the foregoing, the Board is of the
opinion that:
(1) Petitioner is a nonprofit, private, charitable
corporation located in Boston, Massachusetts. Al-
though the allegations concerning the nature of
Petitioner's operations are generally denied by SEIU,
absent any evidence or averments controverting the
Tufts University rather than at Petitioner. On May 12, 1975, Petitioner filed
a supplemental memorandum , attaching, inter alia, a financial statement for
the years ending June 30, 1973 and 1974 prepared by its accountants. By
this statement, and by the argument in its memorandum , Petitioner alleges
errors in SEIU's statement of position and submits additional evidence in
support of its commerce allegations.
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
affidavit of Petitioner's director or setting forth facts
refuting Petitioner's allegations, the allegations as to
the nature of Petitioner's operations are not seriously
challenged. Accordingly, for the purpose of this
proceeding, we shall assume that Petitioner operates
an art museum and galleries, a college of art, and a
retail shop selling prints, postcards, and similar
items, conducts art classes for children and adults,
presents films, and engages in other related activities.
(2) As indicated in paragraph 6, supra, SEIU
asserts that Petitioner was created by statute and has
such a substantial nexus with the Commonwealth
that it would not effectuate the policies of the Act to
assert jurisdiction. It does not allege that Petitioner is
a governmental subdivision within the meaning of
Section 2(2) of the Act, or state what elements are
present to establish the "nexus" between Petitioner
and the government, other than its statutory cre-
ation. In Minneapolis Society of Fine Arts, 194 NLRB
371 (1971), the Board asserted jurisdiction over an
employer engaged in activities similar to Petitioner
herein, although its facilities were located on city
property, it received revenues from the public tax
fund, certain of its employees were paid directly by
the city, and some of its trustees were public officials.
In the instant case, none of the elements present in
Minneapolis are alleged,4 nor are there any other
factors which would lead us to a different conclusion.
Further, with regard to Petitioner's statutorygenesis,
it does not appear in the circumstances of this case
that the special legislation incorporating trustees to
establish the Petitioner rendered it a "department or
administrative arm of the government" or estab-
lished its administration by individuals responsible to
public officials or the general public.5 In this regard,
we note that only five of the trustees are public
officials , and are only ex officio trustees. Petitioner's
4 We note, however, that, 5 of Petitioner's 26 trustees established by the
statute are public officials , to wit: the mayor of Boston, the president of the
trustees of the public library, the superintendent of public schools, the
secretary of the board of education, and the Trustee of Lowell Institute, ex
officios. The remainder of the Trustees are three individuals appointed by
the fellows of Harvard College , three by the trustees of the Boston
Atheneaum, and 3 by the Massachusetts Institute of Technology, and 12
other individuals.
5 Minneapolis Society of Fine Arts, supra, and cases cited in fn . 3 therein.
only administrative limitation is to be found in
chapter 68 of the Massachusetts general laws, which
deal with registration and regulation of organizations
and solicitation of funds on behalf of religious and
charitable organizations and for similar regulation of
charitable trusts and private foundations under
chapter 68A. Further, it derives no revenue from the
public tax fund. In short, there is nothing herein to
indicate that Petitioner's statutory foundation did
more than incorporate the trustees to establish
Petitioner, and did not vest any future control or
responsibility in the government. In these circum-
stances , we find that the initial incorporating statute,
standing alone , does not render the Board's assertion
of jurisdiction inappropriate.
(3) In Trustees of the Concoran Gallery of Art, 186
NLRB 565 (1970), the Board asserted jurisdiction
over an employer engaged in operations similar to
Petitioner herein, applying the same jurisdictional
standard as previously applied to nonprofit educa-
tional institutions .6 Upon the essentially uncontro-
verted averments of the affidavit of Petitioner's
director, Petitioner's annual revenues are in excess of
$7 million, which clearly meet this standard.?
Further, Petitioner purchases artworks from outside
the Commonwealth of Massachusetts in substantial
amounts which, combined with its out-of-- state mail-
order business, clearly bring Petitioner within the
Board's statutory jurisdiction.
From the foregoing, it is clear that the Petitioner is
within the Board's jurisdiction, and, accordingly, the
parties are advised under Section 102.103 of the
Board's Rules and Regulations that, on the basis of
the allegations herein presented, the Board would
assert jurisdiction over the operations of the Petition-
er with respect to labor disputes cognizable under
Sections 8, 9, and 10 of the Act.
6 See Cornell University, 183 NLRB 329 (1970); see also 29 C.F.R.
§ 103.1 , which provides for the assertion of jurisdiction in such cases where
the employer has a gross annual revenue of $1 million.
9 Although SEIU asserts that it is only seeking to represent employees in
Petitioner's museum and gallery , it is customary for the Board to consider
the commerce data from an employer's entire operations in commerce for
jurisdictional purposes . See, e.g., Front Porch Holding Corp., and Front Porch
82, Inc., 214 NLRB No. 117 (1974).