Grahm Junior College, Inc.

GRAHM JUNIOR COLLEGE, INC. Grahm Junior College, Inc., Debtor in Possession and Marshall R. Nanis. Case 1-CA-12507 November 3, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY Upon a charge filed on December 7, 1976, by Marshall R. Nanis, an individual, herein called the Charging Party, and duly served on Grahm Junior College, Inc., Debtor in Possession, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region i, issued a complaint and notice of hearing and an amendment to complaint on May 12 and July 22, 1977, respectively, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Sections 8(a)(3) and (I) and 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before an Administrative Law Judge were duly served on the parties to this proceeding. Respondent failed to file an answer to the complaint. On August 15, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. The Board subsequently issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent failed to file a response to the Notice To Show Cause and, therefore, the allegations of the Motion for Summary Judgment stand uncontroverted. 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. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment Section 102.20 of the Board's Rules and Regula- tions, Series 8, as amended, provides as follows: The respondent shall, within 10 days from the service of the complaint, file an answer thereto. The respondent shall specifically admit, deny, or explain each of the facts alleged in the complaint, unless the respondent is without knowledge, in which case the respondent shall so state, such statement operating as a denial. All allegations in the complaint, if no answer is filed, or any allegation in the complaint not specifically denied or explained in an answer filed, unless the 233 NLRB No. 28 respondent shall state in the answer that he is without knowledge, shall be deemed to be admitted to be true and shall be so found by the Board, unless good cause to the contrary is shown. The complaint and notice of hearing issued on May 12, 1977, and served on Respondent specifically states that unless an answer to the complaint is filed by Respondent within 10 days of service thereof "all of the allegations in the Complaint shall be deemed to be admitted by it to be true and may be so found by the Board." Further, according to the uncontro- verted allegations of the Motion for Summary Judgment, on August 10, 1977, counsel for the General Counsel informed Respondent's attorney, in person, that Respondent had failed to file a timely answer to the complaint and that counsel for the General Counsel would take appropriate action, including the filing of the Motion for Summary Judgment. On the same date Respondent's counsel informed counsel for the General Counsel, in person, that he did not intend to file an answer and that he did not intend to appear at the hearing scheduled in this matter. No answer to the complaint or response to the Notice To Show Cause has been filed as of the date of this Ruling on the Motion for Summary Judgment. Accordingly, under the rules set forth above, no good cause having been shown for failure to file an answer, the allegations of the complaint are deemed admitted and are found to be true, and we shall grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Respondent is, and has been at all times material herein, a corporation duly organized under and existing by virtue of the laws of the Commonwealth of Massachusetts. At all times mentioned, Respon- dent has maintained its principal office and place of business at 632 Beacon Street, in the city of Boston, County of Suffolk, and Commonwealth Massachu- setts, and is now and continuously has been engaged at said location in the operation of a nonprofit private educational institution. Respondent receives a gross annual revenue in excess of $1 million from all sources, which revenue is available for unrestrict- ed use by Respondent. Annually, Respondent receives goods and materials valued in excess of $50,000 directly from points outside the Common- wealth of Massachusetts. 179 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find, on the basis of the foregoing, that Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Grahm Junior College Faculty Federation Local 3235, American Federation of Teachers, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE CHARGING PARTY Marshall R. Nanis is an employee within the meaning of Section 2(3) of the Act. IV. THE UNFAIR LABOR PRACTICES The 8(a)(3) and (1) Violations On or about August 25, 1976, Respondent refused to renew the employment contract of Marshall R. Nanis and thus discharged him and has failed to, refused to, and continues to refuse to reinstate him because he assisted the Union or engaged in other concerted activities for the purposes of collective bargaining, or other mutual aid or protection. Accordingly, we find that, by the aforesaid con- duct, Respondent did discriminate, and is discrimi- nating, in regard to the hire or tenure or terms or conditions of the employment of Marshall R. Nanis thereby discouraging membership in a labor organi- zation and that, by the aforesaid conduct, Respon- dent engaged in and is engaging in, unfair labor practices within the meaning of Section 8(a)(3) of the Act. Further, we find that, by the aforesaid conduct, Respondent has interfered with, restrained, and coerced and is interfering with, restraining, and coercing its employees in the exercise of their rights guaranteed by Section 7 of the Act and that, by such conduct, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section IV, above, occurring in connection with its opera- tions described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of com- merce. VI. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act, we shall order that it cease and desist therefrom, and that it take certain affirmative action as set forth below designed to effectuate the purposes and policies of the Act. Having found that Respondent violated Section 8(a)(3) and (1) of the Act by discriminatorily discharging and refusing to reinstate Marshall R. Nanis, we shall order Respondent to offer him immediate and full reinstatement to his former job or, if such job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered by payment to him of a sum equal to the amount he normally would have earned as wages from the date of his discharge to the date of reinstatement, if reinstated, or from the date of his discharge to the date of Respondent's offer of reinstatement, less the net earnings during such period, with backpay and interest thereon to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977).1 The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Grahm Junior College, Inc., Debtor in Posses- sion, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Grahm Junior College Faculty Federation Local 3235, American Federation of Teachers, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. Marshall R. Nanis is an employee within the meaning of Section 2(3) of the Act. 4. By the acts described in section IV, above, Respondent has discriminated, and is discriminating, in regard to hire or tenure of employment or any term or condition of employment to discourage membership in any labor organization and has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, its em- ployees in the exercise of the rights guaranteed them by Section 7 of the Act, and thereby has engaged in See, generally. Isis Plumbing & Healing Co., 138 NLRB 716 (1962). 180 GRAHM JUNIOR COLLEGE, INC. and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Grahm Junior College, Inc., Debtor in Possession, Boston, Massachusetts, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Grahm Junior College Faculty Federation Local 3235, American Federation of Teachers, AFL-CIO, or any other labor organization, by refusing to renew the employ- ment contract and thereby discriminatorily discharg- ing Marshall R. Nanis, or any other employee, or by otherwise discriminating in regard to hire or tenure of employment or any term or condition of employ- ment. (b) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer Marshall R. Nanis immediate and full reinstatement to his former position or, if that position no longer exists, to a substantially equiva- lent position, without prejudice to any seniority or other rights and privileges previously enjoyed, and make him whole for the loss of wages suffered as a result of his discharge by Respondent in the manner set forth above in the section entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its Boston, Massachusetts, facility copies of the attached notice marked "Appendix." 2 Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaf- ter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region I, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. 2 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in or activities on behalf of Grahm Junior College Faculty Federation Local 3235, American Feder- ation of Teachers, AFL-CIO, or any other labor organization, by refusing to renew employment contracts or by discharging employees, or other- wise discriminating against employees in regard to hire or tenure of employment or any term or condition of employment because of their union activities or other concerted or protected activi- ties. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL offer Marshall R. Nanis immediate and full reinstatement to his former position or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges previously enjoyed. WE WILL make Marshall R. Nanis whole for any loss of earnings he may have suffered by reason of our discrimination against him, with interest. GRAHM JUNIOR COLLEGE, INC., DEBTOR IN POSSESSION 181