Institute Of Technical Careers, Inc.

INSTITUTE OF TECHNICAL CAREERS Institute of Technical Careers, Inc.; Arthur J. Schuh, Trustee in Bankruptcy and Sharon L. Joyce. Case 9-CA-18901 30 April 1986 DECISION AND ORDER BY MEMBERS DENNIS , JOHANSEN, AND BABSON Upon a charge filed by Sharon L. Joyce, an indi- vidual, the General Counsel of the National Labor Relations Board issued a complaint on 16 Decem- ber 1982 against the Company, the Respondent, and an amended complaint, backpay specification, and notice of hearing on 18 and 19 July 1983 against the Company and its Trustee in Bankrupt- cy,1 alleging that the Company had violated Sec- tion 8(a)(1) of the National Labor Relations Act and alleging the amount of backpay due. Copies of the charge, the complaints, backpay specification, and notice of hearing were served on the parties to this proceeding. The Company failed to file a timely answer.2 On 16 August 1983 Arthur J. Schuh, Trustee in Bankruptcy, filed an "Answer" to the amended complaint stating that he is acting as trustee in the bankruptcy of Institute of Technical Careers but is not, as alleged in the amended complaint, the alter ego of the bankrupt. The "Answer" also asserts that issuance of the amended complaint violated the automatic stay provision of the Bankruptcy Code and prays that the complaint be dismissed as to Arthur J. Schuh. On 29 August 1983 the General Counsel filed a Motion for Summary Judgment and to Strike "Answer" of Arthur J. Schuh, Trustee in Bank- ruptcy. On 1 September 1983 the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent filed no response. The allegations in the motion are therefore undis- puted. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. ' About 16 May 1983 Arthur J Schuh was designated Trustee in Bankruptcy of Institute of Technical Careers, Inc in a proceeding under Chapter 7 of the Bankruptcy Code of 1978, 11 U S C 8101 et seq 2 The Company filed a motion to stay proceeding on 16 March 1983 in which it also included an "Answer" denying each and every allegation in the 16 December 1983 complaint The Company' s answer was not filed within 10 days of service of the complaint and was therefore untimely under the Board's Rules See Board 's Rules, Sec 102 20 The Company did not file an answer to the 19 July 1983 amended complaint 811 Ruling on Motion for Summary Judgment Section 102.20 of the Board's Rules and Regula- tions provides as follows: The respondent shall, within 10 days from the service of the complaint, file an answer there- to. 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 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 states that unless an answer is filed within 10 days of service, "all the allegations shall be deemed to be admitted as true and shall be so found by the Board." The undisputed allegations in the Motion for Summary Judgment disclose that the General Counsel, by letter dated 17 August 1983, notified the Respondent that unless an answer to the amended complaint was filed by 22 August 1983 a Motion for Summary Judgment would be filed. The General Counsel contends that the "Answer" of Arthur J. Schuh, Trustee in Bank- ruptcy, should be stricken as nonresponsive to the pleadings and deficient as a matter of law. We agree. We find that the Trustee's response to the complaint does not constitute an answer within the requirements of Section 102.20 of the Board's Rules because it does not specifically admit, deny, or explain each of the allegations in the complaint. Goldstein Co., 274 NLRB 682 (1985). Moreover, it is well settled that unfair labor practice proceed- ings before the Board are exempt from the auto- matic stay provision of the Bankruptcy Code. Phoe- nix Co., 274 NLRB 995 (1985). Finally, Arthur J. Schuh admits in his "Answer" that he is the trustee in bankruptcy of the Respondent, but denies that he is the Respondent's alter ego. The Board may direct a trustee in bankruptcy to take remedial action, however, "regardless of the term used to describe his status." Ohio Container Service, 277 NLRB 305 (1984). In the absence of good cause being shown for the failure to file a timely and sufficient answer under the Board's Rules, we grant the General 279 NLRB No. 105 812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Counsel's Motion for Summary Judgment on the amended complaint.3 On the entire record, the Board makes the fol- lowing FINDINGS OF FACT I. JURISDICTION The Respondent, an Ohio corporation, is en- gaged in the instruction of students in technical courses at its facility in Cincinnati, Ohio. During the 12 months preceding the filing of the charge, the Respondent derived gross revenues in the course and conduct of its operations of more than $50,000 and received tuition fees from students in excess of $50,000, paid for by funds appropriated by the United States Congress and transported in interstate commerce for the training of students. We find that the Respondent is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES The Respondent hired employee Sharon L. Joyce on 11 November 1981 as an admissions counselor. On 5 August 1982 the Respondent dis- charged Sharon Joyce for expressing her and other employees' dissatisfaction with working conditions at the Respondent's facility in conversations with other employees, various agents of the Respondent, and representatives from United States Govern- ment agencies. By the above-described conduct, the Respondent interfered with, restrained, and coerced employees in the exercise of the rights guaranteed them by Section 7 of the Act, and has committed an unfair labor practice within the meaning of Section 8(a)(1) of the Act. CONCLUSION OF LAW By the conduct described in section II, above, the Respondent has engaged in an unfair labor practice affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in an unfair labor practice, we shall order it to 3 We deny summary judgment on the backpay specification, however The issuance of a backpay specification is appropriate only after the entry of a Board order directing backpay or the entry of a court decree enforc- ing such an order Earle Equipment Co, 270 NLRB 827 (1984). Since no prior Board order or court decree awarding backpay has issued in this can, the backpay specification is premature . Compare Ohio Container Service, above at In. 10 (Board found the General Counsel's issuance of backpay specification prior to entry of Board 's order directing payment of backpay to be harmless error in view of parties' stipulation as to the violation and amount of backpay due). cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. We shall order the Respondent to make Sharon Joyce whole for any loss of earnings and benefits she may have suffered as a result of her unlawful discharge from the date of the discharge until the date the Respondent ceased operations , less interim earnings. Backpay due is to be computed as pre- scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), and awarded with interest computed as in Florida Steel Corp., 231 NLRB 651 (1977). Because it is undisputed that the Respondent has ceased operations and filed a petition for bankrupt- cy under Chapter 7 of the Bankruptcy Code, we shall order the conditional reinstatement of Sharon L. Joyce to her former job or its equivalent in the event the Respondent resumes the same or substan- tially similar operations. Beech Branch Coal Co., 260 NLRB 907 (1982). ORDER The National Labor Relations Board orders that the Respondent, Institute of Technical Careers, Inc., Arthur J. Schuh, Trustee in Bankruptcy, Cin- cinnati, Ohio, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging or otherwise retaliating against employees because of their protected concerted ac- tivities. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Make Sharon L. Joyce whole for any loss of earnings and other benefits she may have suffered as a result of her unlawful discharge, in the manner set forth in the remedy section of this Decision and Order. (b) Remove from its files any reference to the unlawful discharge of Sharon L. Joyce and notify her in writing that this has been done and that the discharge will not be used against her in any way. (c) In the event that the Respondent should resume the same or substantially similar operations, it shall offer Sharon L. Joyce full and immediate reinstatement to her former job or, if such job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights and privileges previously enjoyed. (d) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment INSTITUTE OF TECHNICAL CAREERS 813 records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Mail a copy of the attached notice marked "Appendix"4 to any employee employed at the Re- spondent's facility in Cincinnati, Ohio, on the day Sharon L. Joyce was discharged. Copies of the notice, provided by the Regional Director for Region 9, shall be mailed by the Respondent imme- diately upon receipt, after being signed by the Re- spondent's authorized representative, to the last known address of each such employee. (f) Notify the Regional Director in writing within 20 days from the date of this Order of what steps the Respondent has taken to comply. 4 If 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 Nation- al 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 WE WILL NOT discharge or otherwise retaliate against you for your protected concerted activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL make Sharon L. Joyce whole for any loss of earnings and other benefits resulting from her discharge, less any net interim earnings, plus in- terest. WE WILL remove from our files any reference to the discharge of Sharon L. Joyce on 5 August 1982 and WE WILL notify her that this has been done and that the discharge will not be used against her in any way. WE WILL, in the event that we resume the same or substantially similar operations, offer Sharon L. Joyce immediate and full reinstatement to her former job or, if such job no longer exists, to a sub- stantially equivalent position, without prejudice to her seniority or other rights and privileges previ- ously enjoyed. NOTICE To EMPLOYEES MAILED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government INSTITUTE OF TECHNICAL CAREERS, INC.; ARTHUR J. SCHUH, TRUSTEE IN BANKRUPTCY The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to mail and abide by this notice.