The Shaw College

National Labor Relations Board - Board Decisions

Sep 20, 1977

232 N.L.R.B. 1191 (N.L.R.B. 1977)

THE SHAW COLLEGE
The Shaw College at Detroit, Inc. and Shaw College
Professors' Association, MEA-NEA. Case 7-CA-
13088
September 20, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
On April 18, 1977, Administrative Law Judge John
F. Corbley issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief and the General Counsel filed
cross-exceptions and a brief in support of the
Administrative Law Judge's Decision.
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 considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.
We agree with the Administrative Law Judge that
Respondent unlawfully refused to bargain over its
decision to terminate 13 employees. He correctly
found that three of them were discharged in violation
of Section 8(a)(3) and ordered reinstatement and full
backpay. With respect to the remedy for the
terminations of the remaining 10 employees, the
Administrative Law Judge rejected the General
Counsel's request for an order requiring the restora-
tion of the status quo ante with reinstatement and full
backpay dating from the time of their terminations.
He reasoned that the cases2 cited by the General
Counsel in support of his request are inapplicable to
this case as most involve unilateral shutdowns of a
portion of an employer's business operations. We
disagree with his conclusion that the context of
shutdown makes the cases inapplicable.
The overriding principle in those cases is that the
remedy must be designed to fully remedy the
particular unfair labor practices and carry out the
policies of the Act. This is true even though it may
cost innocent employees their jobs. In our view,
Respondent's refusal to bargain herein can only be
remedied by restoration of the status quo ante
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 Interstate Tool Co., Inc., 177 NLRB 686, fn. 3 (1969): N.LR.B v.
Drapery Manufacturing Co., Inc., and American White Goods Company, 425
232 NLRB No. 33
including both reinstatement and full backpay from
the date of the terminations.
THE AMENDED REMEDY
Having found that Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act, we shall order that
Respondent cease and desist therefrom, and take
certain affirmative action designed to effectuate the
policies of the Act.
Accordingly, we deem it necessary, in addition to
requiring Respondent to bargain about the termina-
tions of Roger Bronstad, Laura Bronner, Melba
Boyd, Willie McKenney, Sharon Smith, George
Osius, Robert Riley, Barbara Moten, Henry Davis,
and Fred Bahbah, that all 10 named employees be
offered unconditional reinstatement to their former
positions or, if such positions no longer exist, to
substantially equivalent positions, without prejudice
to their seniority or other rights and privileges. We
shall also order Respondent to make whole each
employee for any loss of pay suffered by him or her
as a result of the Respondent's unlawful refusal to
bargain, by paying each a sum of money equal to the
amount he or she would have earned as wages from
the date of termination until the date Respondent
makes an offer of reinstatement, less net earnings
during said period. Backpay shall be computed with
interest on a quarterly basis in the manner prescribed
by the Board in F. W. Woolworth Company, 90
NLRB 289, 291-295 (1950), Isis Plumbing & Heating
Co., 138 NLRB 716 (1962), and Florida Steel
Corporation. 3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, The Shaw College at Detroit, Inc., Detroit,
Michigan, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order, as so modified:
1. Insert the following as paragraph 2(b) and
reletter the following paragraphs accordingly:
"(b) Offer Roger Bronstad, Laura Bronner, Melba
Boyd, Willie McKenney, Sharon Smith, George
F.2d 1026 (C.A. 8, 1970), enfg. 170 NLRB 1706 (1968); Thomson Transport
Company, Inc., 165 NLRB 746 (1967), and 184 NLRB 38 (1970): Ror'al
Plating and Polishing Co., Inc., 148 NLRB 545, 548-550(1964).
3 In accordance with our decision in Florida Steel Corporation, 231
NLRB 651 (1977), we shall apply the current 7-percent rate for periods pnor
to August 25, 1977, in which the "adjusted prime interest rate" as used by
the Internal Revenue Service in calculating interest on tax payments was at
least 7 percent.
191
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Osius, Robert Riley, Barbara Moten, Henry Davis,
and Fred Bahbah immediate and full reinstatement
to their former positions or, if such positions no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights
and privileges, and make them whole for any loss of
pay they may have suffered as the result of their
discharge in the manner set forth herein above in the
section entitled 'The Remedy.' "
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the chance to
give evidence it has been decided that we have
violated the National Labor Relations Act and we
have been ordered to post this notice.
The National Labor Relations Act gives you, as
employees, certain rights including the rights:
To self-organization
To form, join, or help unions
To bargain collectively through a repre-
sentative of your choosing
To act together for collective bargaining
or other mutual aid or protection or
To refrain from any or all said activities.
Accordingly, we give you these assurances:
WE WILL NOT coercively interrogate you con-
cerning your union membership or activities.
WE WILL NOT discharge you, or take any other
reprisal against you, because you join, support, or
engage in activities on behalf of Shaw College
Professors' Association, MEA-NEA, or any other
labor organization.
WE WILL NOT refuse to bargain collectively in
good faith with the above-named labor organiza-
tion as the exclusive bargaining representative of
our employees in the following bargaining unit
which the Board has found to be appropriate:
All classroom teachers teaching six (6) or
more credit hours, tutors who are employed
twenty (20) hours or more per week, librari-
ans, counselors, learning center personnel,
and other professional support personnel,
but excluding all executive, supervisory, and
administrative personnel, students and all
other employees.
WE WILL NOT refuse to bargain collectively with
the above-named labor organization in respect to
our decision to terminate 13 employees from the
above-described unit on May 17 and July 27,
1976, and the effects of the terminations upon
these employees.
WE WILL NOT in any other manner interfere
with any of your rights set forth above.
WE WILL offer to reinstate Leon Isagholian,
Levi Saunders, and Vikram Prasad to their former
positions or, if such positions no longer exist, to
substantially equivalent positions, with full se-
niority and all other rights and privileges, as the
Board has found that they were discharged
because of their union activities.
WE WILL offer to reinstate Roger Bronstad,
Laura Bronner, Melba Boyd, Willie McKenney,
Sharon Smith, George Osius, Robert Riley,
Barbara Moten, Henry Davis, and Fred Bahbah
to their former positions or, if such positions no
longer exist, to substantially equivalent positions,
with full seniority and all other rights and
privileges.
WE WILL make up all pay lost by Leon
Isagholian, Levi Saunders, Roger Bronstad, Lau-
ra Bronner, Melba Boyd, Willie McKenney,
Sharon Smith, George Osius, Robert Riley,
Barbara Moten, Henry Davis, Fred Bahbah, and
Vikram Prasad because of their discharges plus 7-
percent interest.
WE WILL, upon request, bargain with the
above-named labor organization as the exclusive
bargaining representatives of our employees in
the above-described unit with respect to rates of
pay, wages, hours, and other terms and conditions
of employment including our decision to termi-
nate 13 employees on May 17 and July 27, 1976,
and the effects on such employees of such
decision, and if an understanding is reached, WE
WILL embody such understanding in a signed
agreement.
THE SHAW COLLEGE AT
DETROIT, INC.
DECISION
STATEMENT OF THE CASE
JOHN F. CORBLEY, Administrative Law Judge: A hearing
was held in this case on November 22, 23, 28, 29, and 30,
1976, pursuant to a charge filed by Shaw College
Professors' Association, MEA-NEA (hereinafter referred
to as the Charging Party, the Union, or SCPA) on June 15,
1976, and served by registered mail on Respondent on or
about June 18, 1976, and on a complaint and notice of
hearing issued by the Acting Regional Director for Region
7 of the National Labor Relations Board on August 25,
192
THE SHAW COLLEGE
1976, which was likewise duly served on Respondent. The
complaint, which was amended at the hearing, alleges that
Respondent violated Section 8(a)(1), (3), and (5) of the
National Labor Relations Act, as amended, variously, by
engaging in dilatory tactics in order to undermine the
collective-bargaining process and to avoid reaching a
collective-bargaining agreement; by terminating some 13
unit employees without notice or bargaining and thereafter
refusing to bargain about said terminations; by discharging
employees Leon Isagholian, Vikram Prasad, and Levi
Saunders because of the employees' actual or suspected
support for the Union; and by coercively interrogating its
employees. In its answer to the complaint, which answer
was also amended at the hearing, Respondent has denied
the commission of any unfair labor practices.
For reasons which will appear hereinafter, I find and
conclude that Respondent has violated, and is violating,
the Act essentially as alleged in the complaint. t
At the hearing the General Counsel and Respondent
were represented by counsel. All parties were given full
opportunity to examine and cross-examine witnesses, to
introduce evidence, and to file briefs. All parties waived
oral argument at the conclusion of the hearing. Briefs have
subsequently been filed by the General Counsel and
Respondent and have been considered.
Upon the entire record 2 in this case, including the briefs,
and from my observations of the witnesses, I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
At all times material herein, Respondent, a nonprofit
Michigan corporation, has maintained its principal office
and place of business at 7351 Woodward Avenue in the
city of Detroit, and State of Michigan, hereinafter referred
to as Respondent's place of business or the college.
Respondent has, at all times material hereto, operated an
educational institution, with courses offered to its students
in fields which include liberal arts and business.
During the fiscal year ending June 30, 1976, Respondent
received in excess of $1 million of gross revenue available
for operating expenses. During the same period Respon-
dent received at Detroit, Michigan, directly from suppliers
located outside the State of Michigan, textbooks and other
supplies and materials valued in excess of $5,000.
I therefore conclude that Respondent is now and has
been at all times material herein an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act. 3
II. THE LABOR ORGANIZATION INVOLVED
The Charging Party is an organization with its own
constitution in which employees (instructors and profes-
sors) participate and which exists for the purpose, at least
I One of the amendments to the complaint made at the outset of the
hearing was to delete the allegation that Respondent's refusal to renew the
contracts of 13 faculty members violated Sec. 8(aX3) of the Act. However.
the allegation that three of these same faculty members (Isagholian. Prasad.
and Saunders) were terminated because of their real or suspected union
activities remains in the complaint and indeed will be upheld.
in part, of dealing with employers concerning grievances,
labor disputes, wages, rates of pay, hours of employment,
or conditions of work. I therefore conclude that the
Charging Party is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Respondent's Hierarchy
The complaint, as amended, alleges, the answer, as
amended, admits, the record shows, and I find that, at all
pertinent times herein, the following named persons were
and are supervisors within the meaning of Section 2(11) of
the Act: Romallus 0. Murphy, president; Reginald
Witherspoon, vice president for academic affairs; K. L.
Dade, personnel director; and Janet Russell, chairman of
the Natural Science Department.
The complaint further alleges, the answer admits, and the
record shows that, at all times material hereto, Romallus 0.
Murphy was an agent of Respondent acting on its behalf.
B. Background and Sequence of Events; Allegations
of the Complaint
Respondent is an urban educational institution in
Detroit, Michigan.
In 1936, the school began as the National Academy of
Arts and Sciences, changing its name the following year to
Great Lakes College. In 1962, it became the Michigan
Lutheran College. After 1962 the college went into
considerable debt and its Lutheran management withdrew.
Respondent, Shaw College, took over in 1970 and has
since continued educational programs, some of which lead
to a baccalaureate degree and others to a lesser, or
associate, degree. Respondent assumed at least $1 million
of the debts of Michigan Lutheran College including some
back salaries for teachers which were not cleared up until
September 1976.
In the late winter and early spring of 1975, the faculty
began organizing a union. A leader in this movement was
Leon Isagholian. On or about May 1975, a bargaining
representative election was conducted under the auspicies
of the Michigan Employment Relations Commission
(MERC) without a clear majority for any choice on the
ballot. A second election took place in the early fall of
1975, and on October 10, 1975, the Michigan Education
Association, affiliated with the National Education Associ-
ation (MEA-NEA), was certified as the collective-bargain-
ing representative in a unit of the Respondent's teachers,
librarians, counselors, learning center personnel, and the
professional support personnel.
In the meantime the teachers in this unit banded together
and established the Shaw College Professors' Association
(SCPA) which is affiliated with MEA-NEA. The constitu-
tion and bylaws of SCPA were ratified at a meeting on
2 In March 1977, 1 issued upon the parties a notice to show cause why
the record in these proceedings should not be corrected in certain
particulars. No party having objected, the record is hereby corrected.
3 Sec. 103.1. et seq. of the Board's Rules and Regulations and Statements
of Procedure. Senes 8, as amended.
193
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
October 1, 1975. At this same meeting candidates were
nominated for the various offices of SCPA.
On October 11, 1975, after a mail-ballot election of
officers, SCPA Election Committees counted the votes and
announced that the following were voted into the positions
indicated: president, Leon Isagholian; first vice president,
Tessema Berga; second vice president, Joseph McDermott;
treasurer, Levi Saunders; secretary, Sharon Smith; and
executive board members at large, Wilfred Bubai and
Laura Bronner.
Notices setting forth the results of the election of officers
were thereafter placed on a bulletin board and one or two
other places at Respondent's college. About this same time,
in mid-October 1975, Isagholian went to the offices of
Respondent's president, Murphy, with a copy of the notice.
While speaking with Murphy on this occasion, Isagholian
showed Murphy a copy of the notice.4
Bargaining negotiations between Respondent and SCPA
began on or about November 18, 1975, and had continued
up to the hearing herein in November 1976. No contract
has yet been reached. Indeed, as of the end of August 1976
(the last negotiations dealt with by the record), only a
handful of items had been agreed upon. The complaint
alleges that, beginning in December 1975, Respondent has
engaged in dilatory tactics, has refused to provide informa-
tion, has made proposals without intention of agreeing to
them, and has canceled negotiations, all with a view to
undermining the Union and to avoid reaching a contract,
and the Respondent has thereby violated, and is violating,
Section 8(a)(5) and (1) of the Act.
On December 9, 1975, Isagholian was notified in a letter
from Witherspoon, Respondent's vice president for aca-
demic affairs, that Witherspoon was going to recommend
to Murphy that Isagholian's teaching contract not be
renewed for the 1976-77 school year.
In February 1976, the complaint alleges that Respon-
dent, through its agent, Dade, coercively interrogated its
employees in violation of Section 8(a)(1) of the Act.
In the spring of 1976, the Union filed charges against
Respondent with MERC and a hearing was held in May
and again in June by that state agency.
Also in May 1976, Respondent declined to renew the
teaching contracts of some 13 teachers including union
officers Isagholian and Saunders. The complaint alleges
that Respondent has further violated Section 8(a)(5) and
(I) of the Act by failing to provide the Union with prior
notice of these terminations, and refusing to bargain about
them or their effects on unit employees.
The complaint alleges that Respondent's terminations of
Isagholian, Saunders, and Vikram Prasad (another profes-
sor) in May 1976, came about because of the union
activities of these employees, and hence violated Section
8(a)(1) and (3) of the Act.
I will now consider each of the allegations of the
complaint.
4 Isagholian credibly so testified. To the extent that Murphy's testimony
is contrary. I discredit Murphy. On direct-examination, Murphy testified
that he learned of the identity of the SCPA's officers about April 1976, in a
conversation with (then) teacher Saunders. On cross, Murphy said he could
not recall any conversation about the Union's officers. I found Murphy
C. The Termination of Isagholian
Isagholian completed work on his B.A. degree in
chemistry at Wayne State University in Detroit, Michigan,
in 1966, but did not actually receive the degree until 1968.
It was awarded to him with the designation summa cum
laude. Isagholian took graduate courses while qualifying
for his B.A. degree.
From 1966 to 1969, Isagholian engaged in research at the
School of Medicine of Wayne State University. He has had
at least two publications of his research efforts, on one of
which his name appears along with that of another
contributor. The latter publication in 1968 or 1969 resulted
in Isagholian's nomination to an honor society of scientists
in North America known as Sigma XI. He was initiated
therein in 1969 or 1970. The requirement for entry into this
society is the possession of a Ph.D. or the making of a new
contribution to the scientific community. Isagholian is also
a member of another honor society known as Phi Delta
Kappa.
Since 1969, Isagholian has taught at some four communi-
ty colleges as well as at Detroit Institute of Technology, a
degree-granting institution, and eventually at Respondent's
college. He has taught, inter alia, chemistry, biology,
microbiology, genetics, histology, comparative anatomy,
and physiology. At all of these institutions including
Respondent - at first - Isagholian was paid as having the
equiv alent of a master's degree.
Isagholian began teaching in Respondent's Natural
Sciences Department on a part-time basis in January 1974.
He also taught during the summer of 1974. In the fall of
1974, he became a full-time instructor at Respondent and
maintained that status until his termination in May 1976.
He began his union activities in February 1975, by
soliciting signatures to authorization cards for MEA-NEA.
In August 1975, Dr. Suman Hukku, then chairman of
Respondent's Natural Sciences Department, recommended
Isagholian for a raise of some $700-$800. Isagholian did
not receive this increment and was indeed the only
instructor in that department who did not. His salary was
the lowest of any full-time instructor on a 9-month contract
for the 1975-76 school year.5 In early September 1975,
Isagholian initially refused to sign his 1975-76 teacher's
contract with the Respondent and requested an explana-
tion from Mrs. Dade, Respondent's then director of
personnel, as to why his raise had not been forthcoming.
Mrs. Dade explained that Isagholian had not received the
increase because Isagholian did not have a master's degree.
Isagholian complained that he had previously been paid by
Respondent on the basis of the equivalent of a master's
degree and he pointed out that he was then also teaching at
Detroit Institute of Technology where he was being paid
on that same basis. Dade stated that if Isagholian could
produce a letter from that institution so stating, Respon-
dent would adjust his salary accordingly. This began a long
dispute over Isagholian's credentials which apparently
forms the principal basis for Respondent's defense as to his
uncertain as to details throughout much of his testimony, not only in his
demeanor but also in his expression in which he frequently responded with
the phrase "I think -. " Isagholian, while verbose, was much more certain in
his testimony.
I See G.C. Exh. 5 1.
194
THE SHAW COLLEGE
discharge. I will examine this dispute when I consider
Respondent's defense.
Isagholian resumed his teaching duties in September
1975, after signing his 1975-76 teaching contract but under
the protest already described.
In October 1975, Isagholian was elected president of the
Union. He met with Murphy about mid-October 1975 and
informed Murphy of this fact, as well as the election of the
other officers, as I have already found. But Isagholian's
active support for the Union was already known to
Murphy because Isagholian had personally discussed the
Union with Murphy as early as February or March 1975.6
Also, about mid-October 1975, Isagholian went to see
Murphy and informed Murphy that the Union wished to
bargain with Respondent for a collective-bargaining
contract and would require access to certain records of
Respondent. Murphy was very cordial at this meeting and
indicated that the records would be supplied.
When negotiations got underway on November 18, 1975,
Isagholian was a member of the Union's negotiating team.
After the negotiations did not appear to be going
anywhere, Isagholian went to see Murphy in late Novem-
ber 1975. Isagholian told Murphy that the Union was not
getting any cooperation from management and that he,
Isagholian, desired to speak with Respondent's board of
trustees. Murphy advised Isagholian that the board of
trustees carried out its business through an executive
committee, but Isagholian insisted that he wanted to meet
with the full board. Isagholian's request angered Murphy
and Murphy stated that either Isagholian was going to be
fired or Murphy was going to be fired. The matter was left
in the posture that Murphy would get back to Isagholian.
On December 3, 1975, the Union directed a letter to
Murphy, which was signed by Isagholian along with Jacob
Umen and Suman Hukku of the Union's negotiating team.
In this letter the Union complained that the management
negotiating team had not been prepared to bargain in a
number of sessions, declined to meet more than once per
week, and had refused to initial any agreements reached on
individual items negotiated. This letter stated that, if the
foregoing pattern continued, the Union would be forced to
file unfair labor practice charges against Respondent. The
letter concluded with a demand for an immediate response
from Murphy.
On December 5, 1975, Murphy sent a letter to Isagholian
defending the actions of Respondent's negotiating team
but noting that Isagholian had the right to use legal
processes consistent with the dictates of Isagholian's
conscience.
On December 9, 1975, Witherspoon, Respondent's vice
president for academic affairs, sent a letter to Isagholian in
which Witherspoon advised Isagholian that Witherspoon
had been studying faculty credentials and was of the
opinion that Isagholian's B.A. degree was insufficient to
meet Respondent's faculty requirements. Witherspoon
therefore went on that he was going to recommend that
Isagholian's individual teaching contract with Respondent
not be renewed for the 1976-77 school year.
6 Murphy's testimony does not essentially dispute this.
I Saunders credibly so testified without dispute.
On or about January 8, 1976, Isagholian did meet with
Respondent's board of trustees pursuant to Isagholian's
prior request to Murphy. This meeting proved to be an
embarrassment to Respondent and to Isagholian as will be
discussed later in this Decision.
While bargaining negotiations were thereafter suspended
for 2 months at the request of Respondent's board of
trustees, Isagholian continued to attempt to talk with
Murphy about negotiations. Sometime in the winter,
apparently after January 8, 1976, Isagholian spoke with
Murphy in the parking lot and stated that Isagholian might
file unfair labor practices against Respondent. Murphy, in
what Murphy described as strong language, told Isagholian
that Murphy did not care what Isagholian did.
When negotiations resumed in early March 1976,
Isagholian, who was still president of the Union, became its
chief negotiator and continued to function in the latter
capacity as late as August 1976.
When various instructors were notified of the renewal of
their teaching contracts in April and May 1976, Isagholian
was not so notified and his 1975-76 teaching contract
expired by its terms. He was told by the chairman of the
department, Ms. Russell, in early May 1976, that anyone
who wanted an assignment in the summer could teach at
that time. Before summer classes began, the Union filed its
unfair labor practice charges against Respondent with
MERC. He has not been employed by Respondent since
May 1976.
In June 1976, Saunders, another union officer whose
contract was not renewed, went to see Murphy about
Saunders' future employment with Respondent. Murphy
told Saunders at this time that Murphy was disturbed
about the teachers forming a Union and electing Isagholi-
an president.7
Concluding findings about Isagholian's termination
It is clear from all the foregoing that Isagholian was very
active in union affairs and that the Respondent knew of
these activities and was much opposed to them, all prior to
Isagholian's termination.
Respondent defends that Isagholian's contract was not
renewed in 1976 because he did not have a master's degree.
I reject this defense.
As I have said the matter of Isagholian's credentials was
a topic of dispute between Respondent and Isagholian
throughout much of the 1975-76 school year. Significantly,
this dispute began after Isagholian had been paid by
Respondent at the level of a master's degree for some 1-1/2
years since early 1974.8 This dispute also arose after
Isagholian had been active in organizing the Union and
long after Murphy had become aware of Isagholian's
efforts to this end. Further, while Respondent was under
some pressure to upgrade its faculty to obtain accreditation
from the North Central Accreditation Committee, and this
fact was noted by Witherspoon in his letter to Isagholian
dated December 9, 1975, such upgrading must have been
an issue since at least as early as 1973 (before Isagholian
s Witherspoon so admitted.
195
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was first hired) because Respondent became a candidate
for accreditation in the latter year.
In these circumstances, I conclude that the matter of
Isagholian's credentials was raised in the fall of 1975 as a
pretext to punish him for his union activities.
This view is further supported by other facts and by the
inconsistent and conflicting manner in which Respondent
thereafter checked into these credentials and attempted to
create the appearance of giving Isagholian an opportunity
to improve his background. Thus, when Isagholian signed
his 1975-76 contract in the fall of 1975, he was not given
the raise recommended for him by the chairman of his
department (then Dr. Hukku) nor was he paid (as he
previously had been) on the basis of the equivalent of a
master's degree. Indeed Isagholian was given this inferior
contract despite a letter dated September 4, 1975, which
Respondent had received from Dr. F. R. Boos, dean of
Detroit Institute of Technology (where Isagholian had also
taught), in which Dr. Boos advised Respondent that "In
my judgment his [Isagholian's] publications, educational
experience and training in the areas of biology and
chemistry warrants [sic] considering him to have at least a
Master's degree in science."
Isagholian, as I have found, notified Witherspoon that
Isagholian was signing his contract without waiving his
right to protest his salary placement below the master's
degree level. Witherspoon wrote Isagholian on September
19, 1975, and advised Isagholian that Respondent would
check Isagholian's credentials with the University of
Michigan.9
Thereafter, Witherspoon personally spoke with Dr.
Thomas M. Dunn, chairman of the chemistry department
of the University of Michigan, in an effort to obtain an
evaluation of Isagholian's claim that his educational and
experience or research background constituted the equiva-
lent of a master's degree and also to obtain an estimate of
the background of another then instructor, Fred Bahbah.
There is a credibility issue between Dunn and Witherspoon
as to what reason Witherspoon gave Dunn why Respon-
dent was seeking Dunn's opinion on these two teachers.
Suffice it to say that Dunn evaluated the transcripts and
other materials presented with regard to the qualifications
of Isagholian and Bahbah and thereupon sent a letter to
Witherspoon dated October 13, 1975, in which Dunn
advised Witherspoon that Isagholian was better qualified
than Bahbah. Witherspoon thereafter contacted Dunn by
telephone and inquired specifically whether Dunn's evalu-
ation of Isagholian's credentials was that the latter
possessed the equivalent of a master's degree. This inquiry
was repeated to Dunn in a letter from Witherspoon to
Dunn on October 23, 1975. Dunn replied to Witherspoon
by letter, dated October 25, 1975, stating, inter alia, that:
I would like to state my believe [sic] that the published
work of Mr. Isagholian is the kind of work which would
normally rate the award of a master's degree on the
basis of a thesis. In this respect, Mr. Isagholian could
be said to have the equivalent of a master's degree.
" Witherspoon testified that part of his job function was to review the
academic credentials of Respondent's teachers.
In the meantime Isagholian retained an attorney to
represent him in this salary dispute. After several calls from
the attorney and from Isagholian, Mrs. Dade, then
Respondent's director of personnel, agreed to permit
Isagholian, in mid-January 1976, to examine the informa-
tion supplied the Respondent by Dr. Dunn. Only Dunn's
first letter was shown to Isagholian at this time and not the
second letter wherein Dr. Dunn noted that Isagholian's
published work was equivalent to a master's thesis.
Isagholian was not made aware of the second letter until
unfair labor practice charges were filed by the Union
against Respondent in the spring of 1976 with MERC.
Prior to being shown Dr. Dunn's first letter in mid-
January 1976, Isagholian, as I have found, had already
been informed by Witherspoon (in the letter of December
9, 1975) that Witherspoon was recommending against
renewing Isagholian's contract for the 1976-77 school year
(a renewal which was not due, in any event, for some 3 to 4
months). After sending Isagholian this letter on December
9, 1975, Witherspoon thereupon, on December 23, 1975,
gave the appearance of reversing himself and offered
Isagholian the opportunity to resume his schooling towards
a master's degree at Respondent's expense for the balance
of the 1975-76 school year. Similar offers were also made
to other teachers at this time. Isagholian declined this offer.
Murphy claimed on the stand that any teacher, who
obtained his master's degree under this release program,
would have resumed teaching for Respondent during the
1976-77 school year. Significantly, however, as Isagholian
himself pointed out in his own testimony, Respondent
never told Isagholian that it would continue his employ-
ment after he completed these additional courses.
I conclude that the offer to Isagholian to resume his
education (while Respondent continued his salary for the
balance of his contract) was rather a thinly disguised effort
by Respondent to remove Isagholian from the scene of
bargaining negotiations. For, as has been pointed out, this
offer was not made until after Isagholian and Murphy had
an acrimonious discussion on the progress of negotiations,
after Isagholian had threatened to file unfair labor practice
charges, and after Isagholian had been notified that
Witherspoon was recommending that Isagholian's contract
not be renewed.
Yet other questions as to the bonafides of Respondent in
making this offer are raised by the testimony of Respon-
dent's witnesses as to the circumstances in which the offer
was developed. Thus, Murphy testified that the decision to
offer Isagholian a further educational opportunity was
made by Respondent shortly after November 1, 1975, when
Respondent was reviewing its application for Federal funds
to support faculty upgrading. However, Murphy's testimo-
ny is contrary to that of Witherspoon who testified that the
funds for faculty upgrading during the 1975-76 school year
had already been applied for in the fall of 1974. Murphy's
testimony is also contrary to the testimony of McClain,
Respondent's vice president for business and fiscal affairs,
who said that such funding had been approved by the
Federal Government in July 1975.
196
THE SHAW COLLEGE
After Isagholian declined the offer to resume his own
schooling, Respondent made yet another ill-disguised
effort to keep Isagholian busy away from the bargaining
table. In January 1976, some 2 weeks subsequent to the
beginning of the second school semester, Respondent
directed Isagholain to teach - on an overload basis 10 -- a
course which had already begun under another instructor,
Sud, and which Isagholian considered himself unqualified
to teach. Isagholian likewise refused this direction and
Respondent ultimately acquiesced in his refusal."
I am well satisfied, in all the circumstances, that there is
no merit to Respondent's defense that it did not renew
Isagholian's contract because he had not been awarded an
actual master's degree. The full factual context of the
credentials dispute, briefly outlined above, rather gives
further weight to the General Counsel's case that Isagholi-
an was terminated by Respondent because of his union
activities. Isagholian was marked for discrimination as
early as the fall of 1975 when his salary was reduced from
its previous master's degree level. He was treated cavalierly
by Respondent throughout this dispute. The culmination
of this discriminatory treatment was his termination - or
nonoffer of a new teaching contract which is the same
thing - in May 1976.
I accordingly find that by failing to renew Isagholian's
contract at that time and by subsequently refusing to
reinstate Isagholian, Respondent has violated, and is
violating, Section 8(a)(3) and (1) of the Act. In so
concluding, I rely not only on Isagholian's extensive union
activities - of which Respondent was well aware and
which Murphy explicitly opposed - but also upon
Respondent's whole course of conduct towards Isagholian
during the period of the 1975-76 school year, after his
union leadership had become apparent to Respondent.
And I rely particularly on the timing of Witherspoon's
letter of December 9, 1975, advising Isagholian of Respon-
dent's intention not to renew Isagholian's contract. This
letter came months in advance of any actual need to
consider renewal of that contract but only several days
after Isagholian had signed a letter to Respondent, dated
December 3, 1975, informing Respondent of the Union's
intention to file unfair labor practice charges against
Respondent if Respondent's dilatory tactics in bargaining
with the Union were not rectified.' 2 Respondent's actual
failure to notify Isagholian that his contract would be
renewed and its failure to schedule him for a summer
assignment occurred in May 1976, at the time the Union
had begun its unfair labor practices action against
Respondent before MERC.
'0 On a basis in excess of the normal number of teaching hours a full-
time instructor is expected to carry and for which Respondent pays a
premium.
" My findings of fact in respect to Isagholian's termination - except
where otherwise noted - are based on the credible and undisputed
testimony of Isagholian and Saunders and the vanous documents referred
to. Murphy and Witherspoon, in part, corroborated the testimony relied on.
Dade did not testify.
12 In a letter sent to the Union on August 6, 1976, Respondent supplied
to the Union. as will appear, a much belated explanation of its failure to
renew the contracts of some 15 teachers. This letter states that Isagholian's
contract was not renewed because he did not have a master's degree. refused
a teaching assignment, and did not provide course syllabi to his students. I
D. The Termination of Saunders
Saunders received his master's degree in romance
languages from Wayne State University in 1942. He has
had courses beyond the master's level at the University of
Michigan sufficient for a Ph.D. in this same field, but had
to drop out apparently before writing his thesis. He also
has sufficient course credits for an additional master's
degree in social science but has not performed certain field
work required for the award of that degree. Prior to being
hired by Respondent, Saunders had taught social science
and foreign languages. He has also performed social work.
Saunders was first employed by Respondent in Septem-
ber 1972 on a part-time basis to teach Spanish for one
semester. In the spring of 1973, he became a full-time
instructor of Spanish and French and continued in that
status until his last contract expired on or about May 6,
1976. His employment included teaching during the
summers of 1973, 1974, and 1975, and by the 1975-76
academic year, he was teaching German in addition to
Spanish and French. He has not been employed by
Respondent since May 1976.
In October 1975, Saunders was elected treasurer of the
Union. As I have already found, Isagholian so informed
Murphy during that month and the Union's announcement
of those officers it had elected was thereafter posted on the
bulletin board at Respondent's facilities. Saunders also
received mail in his teacher's mailbox in Respondent's
office addressed to the Union but to his attention during
the 1975-76 school year.
Over a period of years, Saunders had been consulted by
Respondent's officials on questions of scheduling foreign
language classes. In May 1976 - prior to his termination
- he met with Dr. Dulaney, then temporary chairman of
his department (the department of humanities), to draw up
the schedule for the classes in the summer of 1976. Dulaney
and Saunders agreed that there would be one Spanish and
one French course and that, since Saunders was the only
foreign language teacher, Saunders would probably teach
them. When the summer schedule was published, however,
Saunders' name did not appear on it. Instead the word
"staff" appeared in the slots for the teacher's name
opposite the language courses.
Saunders became concerned at this time about what was
going on and also what his employment prospects would be
in the fall of 1976. He, accordingly, proceeded to have
several conferences beginning in the second week of May
1976 with Dr. Dulaney and Dr. Best, the latter being
chairman of the department of social sciences. Dulaney
and Best told Saunders that the enrollment in foreign
have already rejected Respondent's defense, advanced in its brief in respect
to the matter of the master's degree. I have also already dealt with his
claimed refusal to accept a course assignment. As I have found, Isagholian
was asked to teach this assignment to keep him busy away from the
bargaining table. I note that in acquiescing in Isagholian's refusal to accept
this assignment, Respondent, in its letter to him dated February 3, 1976.
stated that it had finally decided not to assign him the course because he
was not qualified to teach it. I also reject the claim that Isagholian's contract
was not renewed because he did not provide course syllabi on the ground
that there is no showing in this record that this matter was ever mentioned to
Isagholian prior to May 1976, when his last contract expired. In any event.
this "syllabi" defense appears only in the instant letter which was received in
the record for limited purposes not including the veracity of averments in it.
197
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
languages was declining and that there might be some
problem in maintaining four future separate courses (to
provide him a full-time teaching schedule in languages).
They therefore asked him what else he was qualified to
teach. He advised them of his background in social
sciences and stated that he could teach in that field. They
responded that they then saw no reason why Saunders
could not be used in the social science department and
teach an extra course, if necessary. Dr. Best told Saunders
that Best and Dulaney could not make a final decision in
this matter, since it had to be discussed with the dean
(apparently Witherspoon) and Murphy. Best assured
Saunders, however, that Saunders had no need to worry.
The record is clear, based on the testimony of Isagholian
and Vikram Prasad, that department heads have the
authority to hire instructors or at least to effectively
recommend such action. I accordingly find that Respon-
dent's department heads are supervisors within the mean-
ing of Section 2(11) of the Act. I have already found that
Janet Russell, the chairman of the natural sciences
department, was a supervisor within the meaning of the
Act at times pertinent herein.
Not having received an invitation to return to teach after
May 1976, as had some of the other instructors by that
time, Saunders obtained an appointment to see Murphy in
early June 1976. Saunders reminded Murphy that Saunders
had come to Respondent in 1972 and had "worked up" the
foreign language department.1 3 Yet, Saunders told Mur-
phy, Saunders had not received a letter inviting him to
return for the coming year. Murphy responded, as I have
found, that he, Murphy, was very much disturbed about
the teachers starting a union and electing Isagholian.
Murphy said that the teachers should have come directly to
him to iron out any problems. Saunders then inquired
whether Saunders' status as union treasurer had influenced
Murphy's decision (in respect to Saunders' apparent
termination). Murphy denied this during the conversation
and told Saunders that some teachers were still being
decided upon.
Saunders continued this conversation by pointing out
that Saunders almost had a Ph.D. in foreign languages, and
that Saunders had been a social worker for 3 years and had
training in social sciences. Saunders said that if there were
not enough courses in foreign languages Saunders could
teach social sciences. Saunders added that Saunders had
more training in social sciences than some of those who
were already teaching that subject. Murphy made no
particular response to this last suggestion, the interview
ended, and Saunders had no job contact with Respondent
during the ensuing summer.
In the second week of September 1976, Saunders
received a telephone call from Ms. Bell, then chairman of
the department of humanities, saying Respondent could
not get anyone to teach French (apparently Respondent
did not then offer the subject). She added that Respondent
had scheduled a class in Spanish at 8:30 a.m., had
1:3 Saunders had taught advanced courses on an experimental basis
which apparently had not previously been taught at Respondent. Enroll-
ment had increased at times in Saunders' classes.
14 My factual findings in respect to Saunders' termination are based on
the credible and undisputed testimony of Saunders in this regard as partially
corroborated by Murphy. Best, Dulaney, and Bell did not testify. Their
registered five students and wondered if Saunders would be
willing to teach that class on a part-time basis. Saunders
said that he was only interested in a full-time opportunity
and that acceptance of part-time employment would
interfere with his obtaining full-time employment else-
where. He also noted to Bell that he, Saunders, had not
been consulted in the scheduling of language classes in the
fall of 1976 and that, from past experience, it would be
unexpected that many students would register for a
language class at 8:30 a.m.' 4
Concluding findings in respect to Saunders'
termination
In Respondent's brief, it argues simply that there were
not enough students enrolled in the language courses to
continue a full-time instructor in that division. It points out
that there were only enough students to justify a part-time
teacher, and that, although Saunders was offered a part-
time position, he declined it. From this I conclude that
Respondent is defending that Saunders' full-time position
was eliminated because of declining enrollment. I reject
this defense.
To begin with, summer courses were scheduled in 1976
but Saunders, the only language teacher, was not scheduled
nor hired to teach them. In the fall, Ms. Bell, in offering a
part-time Spanish instructor's position to Saunders told
Saunders that Respondent could not find a French teacher
- thus clearly suggesting that French would have been
offered if Respondent had hired such a teacher, or
continued Saunders. No mention is made by Respondent
of scheduling German classes, also previously taught by
Saunders. Nor does this record explain what might have
happened to foreign language enrollment had courses been
better scheduled as they had been in the past after
consultation with Saunders.
Finally, Respondent has made no effort to explain why
Saunders could not have been offered a position teaching
social sciences in the fall of 1976, as Best and Dulaney said
they would recommend to Murphy and Respondent's
dean. Saunders has course training in this field up to a
master's degree and has a master's degree (plus) in
languages. Respondent is well aware of Saunders' versatili-
ty - it assigned him previously to teach German, although
his language training is in the romance tongues. And
Respondent has certainly shifted teachers before - the
former German teacher, as Saunders credibly testified, has
been transferred to teaching English. As to openings in the
social science department in the fall of 1976, as well as in
the summer of 1976, which are the only periods that
concern us here, at least one teacher in that department,
Bernard Thompson (for whom Respondent advised the
Union in a letter dated August 6, 1976, that Respondent is
saving a job), was away from Respondent, obtaining his
master's degree.
failure so to do gives rise to the inference which I draw that their testimony
would have been unfavorable to Respondent. International Union, United
Automobile, Aerospace and Agricultural Implement Workers of America
(UA W) v. N.LRB., 459 F.2d 1329 (C.A.D.C., 1972), and Board cases cited
therein.
198
THE SHAW COLLEGE
In all the circumstances I conclude that in May 1976
Respondent decided to rid itself of Saunders, a known
union officer, because of Saunders' union activities despite
Murphy's claim to Saunders to the contrary. Respondent
did so without regard to the impact of its decision on
language classes scheduled for the summer of 1976 or
contemplated for the fall of 1976 and further without
regard to the opinion of Best and Dulaney that Saunders'
services could also be utilized in social sciences.' 5 1,
accordingly, hold that by terminating Saunders - or
failing to renew his teaching contract - in May 1976, and
by subsequently refusing to reinstate him to full-time
duties, Respondent has violated, and is violating, Section
8(a)(l) and (3) of the Act.' 6
E. The Termination of Vikram Prasad
Prasad received a master's degree in biology and
agriculture from a school in India in 1963. He obtained a
further master's degree in entomology in Hawaii in 1966.
He was awarded a Ph.D. in biology from Wayne State
University in Detroit in 1970. He was the major contribu-
tor to one book on biology and the sole author of another
on the same subject published in 1974.
Prasad taught biology at Wayne State University in
Detroit from the late 1960's and at Oakland Community
College in 1970.
Prasad was first employed by Respondent, teaching
biology, in 1971 to 1972. Because Respondent was in
arrears on his salary and since he had not seen his children
for some years, he returned to India in 1972. He came back
to the Detroit area in the late fall of 1975.
In early December 1975, he telephoned Janet Russell,
chairman of Respondent's natural sciences department,
requesting a job. Russell expressed pleasure at the
opportunity to have Prasad back on the campus, remark-
ing, particularly, that Respondent was desirous of having
as many Ph.D.'s on the faculty as possible to help it in its
quest for accreditation by North Central.
Prasad then went to see Russell a few days later and
Russell agreed to rehire him at a salary of $14,500 per year
if this salary was approved by Witherspoon.
In January 1976, Prasad and Russell spoke to Wither-
spoon and Personnel Director Dade and the salary
approved by the latter two officials was $14,100 per year.
Prasad began teaching in January 1976, but did not
immediately receive an actual contract. About this time
Dade informed Prasad that a Union was representing
Respondent's instructors.
Hi Inasmuch as Respondent's offer to Saunders in September 1976 of a
part-time position was less than his prior assignment to full-time teaching
duties, I find that Respondent has not offered Saunders reinstatement to his
former position or a position substantially equivalent thereto.
" Cf. D. H. Bala/dwin Company, 207 NLRB 25, 27 (1973); Shattuck Denn
,Mining Corporation (Iron King Branch) v. N. LR B., 362 F. 2d 466. 470 (C.A.
9. 1966). where the court, in speaking of the evaluation of an employer's
motive for discharge, stated:
IA I state of mind. [actual motive ). being the question, it is seldom that
direct evidence will be available that is not also self-serving. In such
cases, the self-serving declaration is not conclusive; the trier of fact may
infer motive from the total circumstances proved. Otherwise no person
accused ol unlawful motive who took the stand and testified to a lawful
In early February 1976, Prasad had still not received his
contract and went to see Dade. Dade said Prasad's
contract would be coming shortly. Prasad then proceeded
to discuss the Union with Dade. Prasad stated that he
considered it an excellent idea that the Union was
negotiating teacher salaries with Respondent. Dade then
asked Prasad if he believed in the Union and Prasad
replied that he certainly did. Dade then rejoined, "Oh, you
do?" And Prasad repeated that he did.
During February, Prasad continued to ask Dade for his
contract and Dade advised Prasad that a hassle had
developed over Prasad's salary. Prasad did not understand
this in view of the prior agreement. Having joined the
Union in the meantime, Prasad spoke to Isagholian and
asked Isagholian to look into this matter. Isagholian told
Prasad later that Isagholian had talked to Respondent and
the matter was going to be settled.
In late February or early March 1976, Prasad met again
with Witherspoon and Dade. They told him that Respon-
dent would not pay him $14,100 but would offer him
$13,000. They discussed the matter and a salary of $13,800
was finally agreed upon. Thereafter Prasad received a
teaching contract for this amount.
During those various conversations with Witherspoon
and Russell, it was also agreed that Prasad would teach full
time, that is, three courses totaling 12 hours or more per
week. He did carry that load during the January to May
semester of 1976.
Later in the spring of 1976, Russell told Prasad that
Prasad would also teach two courses in the summer of 1976
and she invited him to the registration of summer students
which was to occur between May 20 and 24. At the request
of Russell, Prasad had also prepared an outline of the
courses Prasad expected to teach in the fall of 1976.
The May registration was preceded by a meeting of the
Natural Science Department on or about May 20, 1976.
When Prasad went to attend this meeting, Russell informed
Prasad that his contract was not being renewed. When
Prasad asked Russell for an explanation, Russell said she
did not understand what had happened.
Prasad then attempted to see Witherspoon. Failing in
this, he finally got to speak with Murphy in late May.
When Prasad asked Murphy for an explanation, Murphy
did not reply. Murphy merely shook Prasad's hand and
Prasad left.
Prasad has not since been rehired by Respondent,
although another teacher taught the biology courses in the
summer which had previously been scheduled for Prasad to
teach.
motive could be brought to book. Nor is the trier of fact- here the trial
examiner-required to be any more naif than is a judge. [Footnote
omitted.] If he finds that the stated motive for a discharge is false. he
certainly can infer that there is another motive. More than that, he can
infer that the motive is one that the employer desires to conceal-an
unlawful motive-at least where, as in this case, the surrounding facts
tend to reinforce that inference.
In making these findings. I have disregarded statements in Resp. Exh. 5 (a
letter to the Union dated August 6, 1976. in which Respondent purported to
explain Saunders' termination and the termination of 14 other teachers in
May 1976). The exhibit was received only for limited purposes not including
the veracity of statements contained in it. Moreover. the letter was sent to
the Union some 2-1/2 months after Saunders' discharge.
199
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During his brief second tenure with Respondent, Prasad
received no complaints from his students nor did Respon-
dent inform him of any complaints by his students.17
Concluding findings as to Prasad's termination
Respondent does not offer any defense in respect to its
failure to renew Prasad's contract except to the extent that
it offered an explanation in a letter to the Union dated
August 6, 1976, which I have previously referred to in this
Decision. This letter purported to explain Respondent's
position in respect to all the teachers whose contracts were
not renewed in May 1976.
The letter said that Prasad should not have been hired to
teach in the spring semester. The letter went on that, when
he was hired, it was decided that he would teach part time
but when the classes assigned to him reached a full-time
load, Respondent had to honor his request for a full-time
salary. The statement as to Prasad concluded that Respon-
dent had received complaints from students that they did
not understand Prasad because of his accent.
There is no credible probative evidence to support any of
the above-referenced claims by Respondent (the letter was
received in evidence on a limited basis and not to establish
the truth of the assertions in it). The credible evidence on
which my findings as to Prasad's rehire are based devolve
from the testimony of Prasad on the subject. Russell and
Dade did not testify and neither Witherspoon nor Murphy
adverted directly to Prasad in his testimony. Prasad's
testimony shows that he was hired full-time and taught on
a full-time basis.
There is no evidence that Prasad was ever informed of
any complaints about his accent. While he does have an
accent which was noticeable on the stand, so did Hukku,
who is still employed, and whom I had more difficulty in
understanding. However, I was able to understand both of
them. In any event, Prasad's accent was well known to
Respondent when it rehired him. For he had taught for
Respondent before and was known to Murphy at that time.
Further, Respondent has a number of other professors who
were born in foreign lands. Insofar as Prasad's command
of English is concerned, it is noteworthy that both of his
books have been written in that language.i' One of his
master's degrees and his Ph.D. were awarded in the United
States, where he has also taught elsewhere and indeed was
teaching at the time of the hearing.
In the light of the foregoing, Respondent's defenses to its
failure to renew his contract evaporate. There remains
standing, however, Murphy's animus against his teachers'
formation of a union, Prasad's membership therein and
enlistment of Isagholian to represent him in his salary
dispute and Respondent's knowledge - at least through
Dade - that Prasad was a union adherent. This intelli-
gence, when received by Dade, obviously unsettled her
because she repeated her query to Prasad, as I have found,
to be certain that he was in fact a believer in the Union's
cause.
'" These findings as to Prasad's background and employment are based
on the credible and undisputed testimony of Prasad.
18 Prasad credibly so testified as to one. As to the other, I conclude that it
likewise is written in English because it was coauthored by a professor at
Wayne State University in Detroit.
In the light of all the foregoing, I conclude that
Respondent refused to renew the contract of Prasad and
has subsequently refused to reinstate him because of his
union allegiance and that Respondent has thereby violated,
and is violating, Section 8(a)(l) and (3) of the Act.19
I further conclude that Dade's pressing of Prasad to
verify his union allegiance constitutes a coercive interroga-
tion by Respondent in violation of Section 8(a)(l) of the
Act. In making this finding, I have considered this incident
in the light of all of Respondent's other unfair labor
practices herein (including its failure to bargain with the
Union in good faith from the time collective bargaining
commenced in the fall of 1975 - long prior to this incident
- a subject which I will take up next in this Decision).
F. The Surface Bargaining Allegation of the
Complaint
I. The appropriate collective-bargaining unit
As I have previously found, MEA-NEA was certified by
MERC on October 10, 1975. The precise description of the
unit in which MEA-NEA was then certified is as follows:
All classroom teachers teaching six (6) or more credit
hours, tutors who are employed twenty (20) hours or
more per week, librarians, counselors, learning center
personnel, and other professional support personnel,
but excluding all executive, supervisory, and adminis-
trative personnel, students, and all other employees.
The complaint in the present proceeding alleges this unit
to be appropriate within the meaning of Section 9(b) of the
Act by virtue of MERC's certification to the Charging
Party on the above date. Respondent's answer denies that
the unit is appropriate by virtue of any certification to the
Charging Party by MERC on that date.
However, the record shows that this unit was named as
the appropriate unit in Respondent's own bargaining
proposals dated January 6, 1976, and Respondent and the
Union agreed to it no later than June 9, 1976. Accordingly,
I find such unit to be appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act.
2. The Union's status as collective-bargaining
representative, within the meaning of Section 9(a)
of the Act, of the employees in the above-
described unit
It is true that MERC's certification of October 10, 1975,
did not name the Charging Party (i.e., did not name Shaw
College Professors' Association, MEA-NEA) as the certi-
fied bargaining representative. However, Shaw College
Professors' Association, MEA-NEA, was formed, as I have
found, in early October 1975, and elected its officers on
October 11, 1975. Thereafter, beginning at least as early as
October 27, 1975, Respondent received correspondence
19 See D. H. Baldwin Conmpny, supra Shattrruck Denn Mining Corp. v.
N.L R.B., supra.
The failure of Dade and Russell to testify gives rise to an inference
adverse to Respondent, which I draw, that their testimony would have been
unfavorable to Respondent. Auto Workers v. N. LR. B., supra.
200
THE SHAW COLLEGE
from the Charging Party in respect to the bargaining
negotiations between Respondent and the Charging Party
and directed correspondence to Isagholian as president of
the Charging Party in regard to these same negotiations.
Beginning no later than November 18, 1975, Respondent
met with Isagholian and other representatives of the
Charging Party to negotiate a contract. Finally, Respon-
dent agreed in writing to recognize the Charging Party as
the representatives of the employees in the above-described
unit no later than June 9, 1976.
Accordingly, I conclude that the Charging Party has
succeeded to the rights of MEA-NEA with which the
Charging Party is affiliated under the terms of its
constitution 2 and that the Charging Party is, and has
been, the duly designated representative, within the
meaning of Section 9(a) of the Act, of the employees in the
above-described unit since October 10, 1975.
3. The bargaining
Section 8(d) of the Act describes collective bargaining as
"the performance of the mutual obligation ... to meet at
reasonable times and confer in good faith." The obligation
that the parties to bargaining negotiations shall confer with
each other "in good faith" is an obligation which includes
the intention of both to reach an agreement, if agreement is
possible.21 The bona fides of a party's intention in this
regard depends upon whether the party "evidences a real
desire to come into agreement." 22 The party's behavior at
and away from the bargaining table and the course of the
negotiations themselves are some of the raw materials for
reaching the determination whether or not the party has
bargained in good faith.23 As was observed in N.LR.B. v.
Herman Sausage, Co., Inc.:
bad faith is prohibited though done with sophistication
and finesse. Consequently, to sit at a bargaining table,
or to sit almost forever, or to make consessions here
and there, could be the very means by which to conceal
a purposeful strategy to make bargaining futile or fail.
Hence, we have said in more colorful language it takes
more than mere "surface bargaining," or "shadow
boxing to a draw," or "giving the Union a runaround
while purporting to be meeting with the Union for the
purpose of collective bargaining." 2 4
Here I agree with the General Counsel and the Union
that the Respondent conducted its negotiations with no
desire or intention of reaching an agreement with the
Union.
The parties engaged in some 36 bargaining sessions from
November 18, 1975, through September 1, 1976.25 As of the
end of that time agreement had been reached with respect
20 An affiliation acknowledged by MEA-NEA. See G.C. Exh. 44. 1 also
note that an MEA-NEA representative, either Al Gaiss or others, appeared
with the Union at bargaining sessions from November 1975, until at least
the summer of 1976.
21 Collective bargaining "presupposes a desire to reach ultimate
agreement, to enter into a collective bargaining contract." N.LR.B. v.
Insurance Agents' International Union, AFL-CIO [Prudential Insurance
Company ofAmerica/, 361 U.S. 477, 485 (1960).
22 N.L. R.B. v. Insurance Agents' International Union, AFL-CIO, supra at
498.
to some 7 articles (which cover some seven pages)
according to Witherspoon, whereas the Union's proposals
are presented on some 65 pages and Respondent's own
proposals total more than 40 pages of material. The
agreements (as of September 1, 1976) cover fair employ-
ment practices, administrator's teaching of regular assign-
ments, scope of the agreement, recognition and description
of the unit, conformity to law and grading. The provisions
for recognition and description of the unit and conformity
to law were management's own proposals. The scope of the
agreement is the same as Respondent's proposed language.
While exhibits introduced by the General Counsel under
the designation No. 49 without objection at the hearing
indicate that before September 1, 1976, agreement was also
reached on articles entitled "Negotiations" and "Working
Conditions" and Isagholian testified, without contradic-
tion, that agreement had been reached on other complete
or partial articles dealing with such matters as vacancies,
release of class schedules by a certain time, teaching load,
reduction of staff, academic freedom, etc., the fact remains
that the parties were a long way from a full agreement as of
that date and had reached no agreement on wage rates and
most fringe benefits.
In basing my conclusion that Respondent has conducted
its negotiations with no desire or intention of reaching an
agreement with the Union, I rely on the following:
I. Respondent failed to meet with the Union at
reasonable times.
Thus Respondent met with the Union only some four
times from the time of the Union's certification in October
1975 until March 5, 1976, despite the Union's repeated
requests for more meetings. Respondent refused to meet at
all during the months of January and February 1976,
because, it says, its board of trustees suspended negotia-
tions to study a report read by Isagholian at a meeting
attended by the board of trustees on January 8, 1976,
alleging that Respondent was dragging its feet in negotia-
tions, was refusing to meet with the Union, and was not
cooperating with it. Since the Union's charge and the
complaint in the present unfair labor practice proceeding
run against Respondent and do not distinguish between its
executive officers and its board of trustees who, according
to Murphy, direct Respondent's affairs, 2 6 the action of the
trustees does not excuse Respondent's failure to meet
during this period. In any event, the board of trustees did
not write any report nor issue any findings. Indeed one
searches this record in vain to find out what, if anything,
they did do except to write Isagholian a letter on January
12, 1976, acknowledging receipt of his report on negotia-
tions and again on February 19, 1976, stating it had
authorized resumption of the negotiations and thanking
him for his acquiescence in the suspension of negotiations.
(He vigorously denied such acquiescence at the hearing
23 McCann Steel Company, Inc., 190 NLRB 12(1971).
24 275 F.2d 229. 232 (C.A. 5. 1960).
25 Witherspoon testified this number was 45. However, he took no notes
prior to March 1976. My findings are based on the credible testimony of
Isagholian and dates of agreement reflected on proposals received in
evidence at the hearing. Management canceled about nine meetings which
may explain the difference between my findings and Witherspoon's
testimony.
26 There are some 12 trustees. Murphy admitted to Isagholian in
November 1975 that they are selected or removed by Murphy himself.
201
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and no member of the board of trustees testified to the
contrary.) Insofar as the Union was able to ascertain, only
one board member even studied the Union's contract
proposals and the trustees made only one recommendation
to Respondent and this dealt with one step of the grievance
procedure. There is no indication in the record that any
member of the board of trustees attempted to contact any
union representative during this period.
Respondent also unilaterally canceled some nine meet-
ings - two because unfair labor practice charges were filed
against it by the Union with MERC. Respondent's
bargaining team also arrived late - sometimes by more
than an hour - at 7 of the 15 or 16 meetings held in July
and August 1976.
2. When Isagholian spoke with Murphy in late Novem-
ber 1975, complained to Murphy of the delays in
negotiations at that time and the difficulty the Union was
experiencing in obtaining certain documents from Respon-
dent, and threatened to file unfair labor practice charges
against Respondent because of this conduct, Murphy told
Isagholian that all that could happen to Respondent in a
lawsuit would be that it would be ordered to stop doing
what it was doing.27
3. From November 1975, until June 1976, Respondent
refused to initial any articles on which agreement was
reached.
4. Respondent refused for a long time to provide the
Union with documents in Respondent's possession which
the Union needed to conduct negotiations. For example,
Respondent, despite frequent union requests, did not
supply the Union with a list showing the names and
salaries of all teachers until some 8 months after this list
was first sought by the Union. Even when it furnished the
latter information - after being told so to do by MERC -
Respondent furnished it only to the Union's then counsel
and not to Isagholian, the Union's chief negotiator. 8
5. Respondent discharged (failed to renew the teaching
contracts of) Isagholian (then chief union negotiator),
Saunders (a union officer) and Prasad (a union adherent)
in May 1976, all in violation of Section 8(a)(1) and (3) of
the Act. I have already so found. Isagholian was first
notified in early December 1975 that his discharge would
be recommended. The date of such recommendation
occurred a few weeks after the commencement of negotia-
tions and after he had threatened legal action against
Respondent because the negotiations were not progressing.
6. Respondent made its own bargaining proposals in
early January 1976, without the intention that they be
accepted. Witherspoon admitted at the hearing that,
although he was prepared to negotiate Respondent's
proposals, they were advanced for discussion purposes
only. He made the same admission in his prehearing
affidavit.
7. In June 1976, almost 7 months after negotiations had
begun, Respondent insisted on renegotiation of those
matters previously agreed to. Its attorney, King, told the
union representatives that, since nothing had been ini-
27 Isagholian credibly so testified without dispute.
Z8 See G.C. Exh. 51. The Union was entitled to this information in order
to formulate its bargaining demands. Meyer Fabes, et at., d/bla Gateway
Luggage Mfg., Co., 122 NLRB 1584 (1959).
tialed, future negotiations "would start from base one."
King also explained her position in this regard on the basis
that Respondent's representatives may have previously
agreed to matters they were not supposed to agree to.2
8. Respondent, in June 1976, reneged on its own
proposals. Some of the aforementioned proposals, which
Respondent insisted on renegotiating, were Respondent's
own proposals made in January 1976. Respondent attempt-
ed to show at the hearing that it wanted to be certain, in
June 1976, that the language of these proposals was correct.
However, this was a matter Respondent should have
verified before the proposals were made and certainly
before they were accepted. Respondent, on August 16,
1976, again reneged on agreement to one article on which
agreement had been reached on March 19, 1976.30
9. At a meeting on or about June 16, 1976, after
Isagholian had learned that Respondent intended to
renegotiate all prior agreements, he told Respondent's
attorney, King, that he had no alternative but again to file
charges with MERC as had been done the previous month.
King replied that if Isagholian took this action Respondent
would have the Union decertified.31
10. When Murphy spoke to Saunders in June 1976, as
has been previously discussed, about Saunders' future with
Respondent, Murphy told Saunders that Murphy was
upset that the teachers had decided to have a union, that
the teachers should have come directly to him and the
difficulties could have been ironed out.
11. In January 1976, Respondent established a faculty
committee, as a competing organization to the Union, to
set faculty salaries. Murphy testified in explanation of this
faculty committee that Respondent has a number of
faculty committees, that this one had been chartered before
the Union was certified and that its purpose was to
investigate faculty salaries at other institutions and to
gather information for Respondent. He stated he had no
intention to impede the Union by establishing this
committee. I reject this claim.
The committee consisted of representatives of Respon-
dent's faculty and its administration. The purpose of the
committee was clearly set forth by Respondent's budget
representative, Edet, as reported in the minutes of the first
meeting on January 28, 1976:
(a) To improve on compensation policies now in
effect.
(b) To deal with individual cases regarding faculty
compensation.
(c) To study the method of calculating faculty pay,
especially part-time faculty (contact hours v. credit
hours).
(d) To establish a method of calculating overload
pay.
While the minutes of the second meeting on March 12,
1976, state that it was explained at such meeting that the
"role of the committee was in line with the faculty union,"
that the committee was advisory, would not set salaries and
29 Isagholian credibly so testified without dispute. King did not testify.
30 Isagholian credibly so testified without dispute.
1i Isagholian credibly so testified without dispute.
202
THE SHAW COLLEGE
its work would be useful to both Respondent and the
Union, the minutes of later meetings (April 14, April 29,
and May 13, 1976) show beyond cavil that the committee
was intended to, and did, make recommendations to
Respondent in respect to faculty compensation levels.
There is no indication that such recommendations were
offered to the Union, which protested the formation of the
committee and its conflict of interest with the collective-
bargaining process in a letter to Murphy dated February
20, 1976.
In bargaining negotiations on or about June 11, 1976,
when the parties were discussing the Union's rights,
Respondent's attorney, King, insisted that Respondent had
the right to assist another organization or an organization
competing with the Union.32
I conclude that the faculty compensation committee was
established by Respondent and that it competed with the
Union in persuading Respondent to set faculty salaries.
While such a committee may have been proposed prior to
the certification of the Union, Respondent was under no
compulsion to carry out such a proposal thereafter.
Consistent with its obligation to recognize and bargain
with the Union as the exclusive representative of its faculty,
it could easily have abandoned that committee or strictly
limited its function to the investigation of salaries at
competing institutions.
12. Respondent made little, if any, effort to propose a
responsive wage proposal to the Union's demands until the
summer of 1976, some 8 months after bargaining com-
menced.3 3
13. Respondent gave Isagholian the runaround when
he was supposed to make a presentation to the board of
trustees at a meeting on January 8, 1976. The meeting was
a party held by Respondent and attended by students,
faculty, and the trustees, if not others as well. Isagholian's
attempt to persuade the trustees to lend a favorable ear to
the Union's bargaining demands were out of place at this
affair and were, predictably, not well received. Indeed, they
caused embarrassment to both Respondent and Isagholian.
While private and obviously more suitable meetings of the
board of trustees were held both before and after this party,
Isagholian was not invited to either private meeting.34
I conclude from all the foregoing, the record as a whole,
and Respondent's entire pattern of conduct towards the
Union, including its refusal to discuss and bargain over the
mass terminations of faculty members in May 1976 -
which I will discuss in the next section of this Decision -
that Respondent did not confer in good faith with the
Union from the fall of 1975 until the end of August 1976,
the period covered by this complaint. The Respondent's
attendance at bargaining sessions during this period was a
diversion - a mere pretense at engaging in negotiations.
While giving the appearance of bargaining, the Respon-
33 Isagholian credibly so testified without dispute.
33 This is clear from the testimony of Respondent's witnesses McClain
and Witherspoon. No study was associated with Respondent's initial wage
proposal of January 6, 1976, which apparently was merely a repeat of the
existing salary structure.
34 Murphy so admitted.
35 See The Hartford Fire Insurance Company. 191 NLRB 563 (1971). enfd.
456 F.2d 201 (C.A. 8, 1972); McCann Steel Co.. Inc.. 190 NLRB 12 (1971);
The Gerstenslager Company, 202 NLRB 218 (1973), enfd. 487 F.2d 1332
(C.A. 6, 1973); cf. Fred Tuch Buick, 199 NLRB 876 (1972); United States
dent, at no relevant time, had any intention of consummat-
ing an agreement with the Union. The Respondent's
purpose, I find, from the very beginning of negotiations
was to frustrate such negotiations and to make them a
waste of time. It is significant that, after some 8 months of
what was supposed to have been bargaining in good faith,
Murphy told Saunders in June 1976, as I have found, that
Murphy was (still) disturbed about the teachers deciding to
have a union and that the teachers should have come to
him and any difficulties could have been ironed out. The
methods employed by the Respondent - not the least of
which was the unlawful discharge of the chief union
negotiator on a pretextual basis - make a mockery of the
collective-bargaining process and the objectives of this Act.
I find, as alleged in the complaint, that Respondent has not
bargained in good faith and has violated Section 8(a)(5)
and (1) of the Act.3 5
G. The Mass Discharge of Teachers in May 1976;
Respondent's Response to the Union's Demands To
Bargain About This Matter
On or about March 30, 1976, Respondent's attorney,
King, contacted Al Gaiss, a representative of MEA-NEA,
who was assisting the Charging Party in the negotiations
with Respondent, and advised Gaiss that Respondent
proposed at that time to send out letters to certain faculty
members advising them that their teaching contracts were
going to be renewed for the coming year. The wording of
the letter was discussed with Gaiss over the telephone and
Gaiss accepted it. About a week later a copy of this letter
was sent to Gaiss by Respondent along with a list of those
teachers to whom the letter was being sent. Gaiss promptly
turned these materials over to Isagholian. Isagholian
immediately noted that the names of numerous current
teachers (among whom he was one) were omitted from this
list.
This matter was promptly raised by Isagholian at the
bargaining sessions in late April 1976,36 and Isagholian
inquired of Respondent if the people who received no
contract renewal letters were going to be rehired. The
management representatives present at that time -
Witherspoon (the Respondent's chief negotiator), Mrs.
Dade, and Ms. Benjamin - refused to discuss this matter
saying that they were there to negotiate a contract and not
to deal with a reduction of people. They advised the union
representatives that the jobs of the teachers whose
contracts were not renewed would be left up to "the
courtS." 3 7
The Union continued to press the matter of the layoffs in
May 1976, but to no avail. The negotiating representatives
of Respondent advised the union representatives that
Respondent did not have to give the reasons for not
Gypsum Company, 200 NLRB 305 (1972); International Unioni United
Automobile, Aerospace and Agricultural Implement Workers of America,
UAW Udylite Corporation] v. N.LR.B., 455 F.2d 1357 (C.A.D.C., 1971);
Vac-Art, Inc., 124 NLRB 989 (1959); Cincinnati Cordage and Paper
Company, 141 NLRB 72 (1963).
36 April 15 and 30, i.e., after a copy of the letter had been furnished to
Gaiss and then by Gaiss to Isagholian.
37 These findings are based on the credible and undisputed testimony of
Gaiss in this regard.
203
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
renewing the contracts of these teachers. As Witherspoon
admitted, Respondent told the Union at this time that the
matter was confidential. Also in May, Isagholian accompa-
nied two of the about to be terminated teachers, Laura
Bronner and Sharon Smith, on a visit to Murphy to inquire
about Respondent's failure to renew their contracts.
Murphy simply advised that their contracts were expiring.
On May 17, 1976, the 1975-76 contracts expired for 13
faculty members, when their contracts were not renewed
(the contracts of two others, Smith and Bronner, which
were not renewed, expired on July 27, 1976). As previously
mentioned, unfair labor practice charges were filed by the
Union against Respondent with MERC in or before May
1976. These charges included the matter of the teacher
contract nonrenewals. A hearing was held on or about May
26, 1976, before Judge Sperka of MERC. At the hearing
Sperka advised the then union counsel, Anastandig, that
Respondent had to give the Union an explanation for the
discharges.
On or about May 26, 1976, the afternoon after the
MERC hearing, Isagholian and Title, another union
attorney, reviewed the files of the teachers who had been
terminated.
On the following day or the next day after that MERC
hearing in May (or after the MERC hearing on June 21,
1976), the faculty members who had been terminated
appeared at Respondent's premises. Respondent had
advised the Union that any person who had been
terminated could come in and discuss his or her termina-
tion. Respondent added, however, that it would do nothing
about the termination.3 8 Apparently only Smith and
Bronner accepted this offer. Isagholian was not permitted
to accompany them. Neither Smith nor Bronner has been
reinstated and Witherspoon admitted that the sessions with
Smith and Bronner were not bargaining sessions.
The Union continued to press the matter of the
terminations in June, July, and August, 1976. This issue
was raised on June 3 and Respondent stated that specific
reasons for the termination of each teacher would be
supplied later. On June 9, the question came up again and,
on that date, Respondent directed a letter to the Union,
named all 15 teachers (whose contracts had not been
renewed), gave general reasons for all the terminations
(without relating any such reason to any specific individu-
al), and concluded that specific reasons would only be
released to the individual upon his or her request for a
conference, in order to protect the individual's privacy.
At a negotiating session on June 16, 1976, where the
matter was again raised, Respondent took the position that
no one was discharged, merely that the contracts had
expired.
18 Isagholian thought this occurred after the MERC hearing in June.
Witherspoon thought it was May. Respondent offered individual teachers
an opportunity for a conference to discuss the individual's termination in a
letter on June 9, 1976. to be discussed hereinafter. This letter would suggest
that the two individual conferences which did take place probably occurred
in June 1976.
' M findings as to the sequence of events from May to August 1976 are
based on the credible and undisputed testimony of Isagholian in this regard
except as otherwise noted which testimony is partially corroborated by
that of Iukku and Witherspoon.
On June 28, 1976, when the Union returned to this
question at a bargaining session, management refused to
supply the reasons why the teachers had been terminated.
At a bargaining session on July 2, 1976, Respondent
again declined to present any information on this subject.
On July 7, 1976, Isagholian requested reinstatement of
the 15 people who had been terminated. Respondent
refused.
At a meeting on July 20, 1976, briefly attended by Mrs.
Dade (only) for Respondent, the Union again requested
Respondent for the reasons the 15 teachers had been
terminated but Respondent did not reply. Isagholian
pressed the point, noting that the teachers were having
difficulty obtaining unemployment compensation because
Respondent was not furnishing information in a timely
manner. Isagholian specifically asked for an explanation of
Respondent's procrastination in this regard. Dade refused
to respond.
In a letter dated on August 6, 1976, long after the charge
in the present case was filed, Respondent finally presented
the Union with detailed reasons for the termination of the
15 teachers. This letter renewed Respondent's earlier offers
to discuss any termination with the individual teachers
involved. Respondent did not offer to discuss the matter
with the Union.
At a negotiating session on August 25, 1976, Isagholian
attempted unsuccessfully to have the 15 terminated
teachers reinstated.39
In September 1976, Respondent hired some 13 new full-
time teachers and 11 new part-time teachers all of whom
are in the bargaining unit.40
Concluding findings in respect to the Union's
attempts to bargain about the terminations
The matter of the layoff or terminations of bargaining
unit personnel is a mandatory subject of bargaining. 41 This
means that Respondent, inter alia, was required to notify
the Union in advance of its intentions and give it an
opportunity to bargain over the matter, promptly to supply
information in this regard, and also to bargain over the
effects of the terminations upon the employees.4 2
Here the Respondent did not notify the Union of its
intention to terminate some 15 employees. The Union
found this out only by noting that the list of teachers whose
contracts were to be renewed excluded these 15. As early as
mid-April, when all 15 were still employed, the Union
sought to discuss the matter with Respondent but Respon-
dent refused, saying, variously and contradictorily, that no
one was being terminated (their contracts were merely
expiring), that the matter would be left to the courts, that
Respondent did not have to give any reasons for the
terminations, that the reasons for the terminations were
confidential, that the reasons would be forthcoming later,
40 See G.C. Exh. 65 and the credible testimony of Isagholian in this
regard.
41 Keystone Casing Supply, Inc., 19 NLRB 920, 927 (1972); Medicenter,
Mid-South Hospital, 221 NLRB 670 (1975).
42 Keystone Casing Supply, Inc., supra; M&A Electric Power Cooperative,
Inc., 154 NLRB 540(1965); cf. RegalAluminum, Inc., 190 NLRB 468 (1971);
United States Gypsum Company, supra.
204
THE SHAW COLLEGE
etc. The Union sought, unsuccessfully, to obtain reinstate-
ment of the employees after their contracts were terminat-
ed. The Union also sought in vain to bargain about at least
one effect of the terminations (viz re employment compen-
sation claims). Finally, when Respondent (after the MERC
hearings, and after the charge herein was filed and less than
3 weeks before the complaint herein issued) provided the
Union with Respondent's claimed reasons for the termina-
tions, it offered to discuss the terminations only with
individual employees and not with the Union. This had
been Respondent's position since sometime in May 1976,
after earlier refusing to discuss the terminations altogether.
I find on the basis of the foregoing that Respondent,
after initially failing to notify the Union with respect to the
termination of 13 teachers, has - since the Union became
aware that the terminations would occur - steadfastly
refused to discuss with the Union the terminations or their
effects upon the terminated employees43 and that Respon-
dent was further derelict in not supplying the Union with
information needed by it to bargain over these matters
until 2-1/2 months after all but 2 of the terminations
occurred (and some 2 weeks after the remaining 2) and that
Respondent by these actions - or more properly inactions
- has further violated Section 8(aX5) and (1) of the Act.44
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth above, occurring
in connection with its operations described in section 1,
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 commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices, I shall recommend an order requiring that
it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act which
will include the posting of an appropriate notice to its
employees.
The recommended Order shall also contain the conven-
tional affirmative provisions for cases involving unlawful
discharge in violation of Section 8(aX3) and (1) of the Act.
Thus, Respondent will be required to offer Leon Isagholi-
an, Vikram Prasad, and Levi Saunders reinstatement to
their former positions or, if such positions no longer exist,
to substantially equivalent positions, without prejudice to
their seniority or other rights and privileges. Each will be
made whole for any loss of earnings he may have suffered
by reason of the discrimination against him by payment to
him of a sum of money equal to that which he would have
earned from the date of his discharge to the date of the
43 Respondent's offers to discuss the matters with the employees is not an
offer to discuss such matters with the employees' exclusive bargaining
representative. as Respondent was obligated to do.
44 E.g., Keystone Casing Supply, Inc., supra, Regal Aluninunum Inc., supra.
My violation finding is limited to the 13 teachers. inasmuch as the names of
2 of the actual 15 teachers have been intentionally omitted from the
complaint.
4- Actually, 15 teachers were terminated but the complaint is limited to
13 of these 15. as I have already noted.
offer of reinstatement, less net earnings, if any. to be
computed in the. manner prescribed in F W. Woolworth
Company, 90 NLRB 289 (1950), with 6-percent interest
thereon as required by Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
It will further be recommended in view of the unfair
labor practices in which Respondent has engaged (see
N.LR.B. v. Entwistle Manufacturing Company, 120 F.2d
532, 536 (C.A. 4, 1941)) that Respondent be ordered to
cease and desist from infringing in any manner upon the
rights guaranteed employees by Section 7 of the Act.
Insofar as Respondent's refusal to bargain with the
Union in good faith from at least November 1975 until the
end of August 1976 is concerned, an affirmative bargaining
order will also be recommended.
This brings us to the question of the appropriate
affirmative remedy for Respondent's refusal to bargain
over its decision to terminate 13 employees. 45
The General Counsel seeks an order requiring, inter alia.
the restoration of the status quo ante with reinstatement
and, as I understand him, full backpay to each of these 13
teachers who were terminated. I reject this request.
The cases cited by the General Counsel in support of this
request run the gamut from being entirely inapposite to
distinguishable in substantial part. None is directly in
point.
All such cases deal with situations involving unilateral
shutdowns of a portion of an employer's business opera-
tions in violation of Section 8(a)(5) and (1) of the Act and
in some cases the shutdown was held to have been
occasioned by the union activities of the employees
terminated. The present case, concededly, does not involve
.a unilateral shutdown of operations and the discharge of
employees because of union activities (with the exception
of the discharges of Isagholian, Prasad, and Saunders for
which I have already recommended separate affirmative
remedies). Nor, insofar as this record shows, does this case
involve any shutdown as such, but only a program
alteration (in the dental assistant's program) which could
have partially affected the jobs of only 2 of the 13
terminated employees.4? Insofar as the jobs of all terminat-
ed employees are concerned, Respondent has hired new
bargaining unit employees to replace them.47
I have disregarded Respondent's statements in its letter
to the Union, dated August 6, 1976 (Resp. Exh. 5), wherein
Respondent purports to explain all 13 (actually all 15)
terminations. In that letter Respondent took the position
that'Saunders, Robert Riley, Kathleen Gantos, and George
Osius lost their positions, in part, because of a proposed
revision or proposed elimination of Respondent's language,
music, and art programs. However, Respondent's Exhibit 5
was specifically not received as proof of assertions reflected
in it, as I have already pointed out, but was rather taken
into evidence for the limited purposes of showing:
'4 At most the record shows that Respondent has cut back I Near of its 2-
year dental assistant's program (see the undisputed testimony of Wither-
spoon in this regard). This action could have partially affected the work of
Bronner and Smith. While these employees are no longer employed hb
Respondent some aspect of their duties must continue for Respondent has
hired at least one replacement, La Ruth Edwards (see G.C. Exh. 65).
47 See. e.g., G.C. Exh. 65.
205
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent (ultimately) provided the Union with a letter
explaining the terminations; that this letter was turned over
to Isagholian; and that the letter sets forth Respondent's
position in respect to the terminations. Except as to the
dental assistant's program, there is no credible probative
evidence that Respondent, in or before May 1976, finally
decided to reduce any of its academic programs. Nor
indeed does the record show that Respondent has subse-
quently done so.
The question thus narrows to what is the appropriate
remedy for Respondent's refusal to bargain over its
decision to terminate a group of its teachers where such
decision was concededly not made because of their union
activities and which decision did not, with one or two
possible exceptions, flow from any shutdown of a part of
the Respondent's operations.
As I have found, the Union sought in vain to bargain
with Respondent about these terminations as early as mid-
April 1976, about a month before all but two of them
occurred and 3 months before the remainder occurred. But
Respondent adamantly refused to discuss the terminations
with the Union and did not even advise the Union of
Respondent's reasons for terminating these employees until
all were terminated. Thus, it is clear that Respondent
ignored the protest of the exclusive bargaining representa-
tive of these employees at the time the employees needed
the services of that representative the most, i.e., before they
lost their jobs and when something might have been done
about keeping them employed, before they were replaced
- or at least when something could have been done about
the effects of their terminations - at a time when they
provided a substantial measure of the Union's bargaining
support.48
Meaningful bargaining cannot be assured until the
Union's economic strength is restored to some measure of
its status in April and May 1976. A bargaining order alone
cannot, in my judgment, serve as an adequate remedy for
the unfair labor practices committed.
Accordingly, while I deem it necessary, in order to
effectuate the policies of the Act, to recommend an order
requiring Respondent to bargain with the Union over its
determination to terminate the 13 employees covered by
this complaint, I shall also recommend a backpay remedy.
This will be a limited backpay requirement designed
both to make whole the employees for losses suffered as a
result of Respondent's violations and to recreate in some
practicable manner a situation in which the parties'
bargaining position is not entirely devoid of economic
consequences for Respondent. Thus, Respondent shall be
required to pay all employees - not rehired by it after
May 11, 1976, and after July 27, 1976, but who had been in
the collective-bargaining unit prior to such dates -
backpay at the rate of their normal wages as of May 1976,
beginning from 5 days after this Decision until the
occurrence of the earliest of the following conditions: (1)
the date the Respondent bargains to agreement with the
Union on those subjects pertaining to its decision to
JR The employees terminated represented about 25 percent of the full-
time unit complement. (The unit includes any teachers instructing 6 or more
credit hours per week or tutors employed 20 or more hours per week.)
49 This backpay aspect of this portion of the remedy will not apply to
Saunders, Isagholian, and Prasad unless my determination that their
terminate these employees and the effects of said decision
on these employees; (2) a bona fide impasse in bargaining;
(3) the failure of the Union to request bargaining within 5
days of Respondent's notice of its desire to bargain with
the Union; or (4) the subsequent failure of the Union to
bargain in good faith; but in no event shall the sum paid to
any of these employees exceed the amount he would have
earned as wages from the date of his termination 49 to the
time he secured equivalent employment elsewhere, or the
date on which the Respondent shall have offered to
bargain, whichever occurs sooner; provided, however, that
in no event shall this sum be less than these employees
would have earned for a 2-week period, at the rate of their
normal wages when employed in May 1976.50
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discharging Leon Isagholian, Levi Saunders, and
Vikram Prasad on May 17, 1976, and by failing to reinstate
them, in each instance because of their union activities,
Respondent has violated, and is violating, Section 8(a)(l)
and (3) of the Act.
4. By pressing Vikram Prasad for a verification of his
allegiance to the Union, Respondent has violated Section
8(aX)() of the Act.
5. The following unit of the Respondent's employees is
a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
All classroom teachers teaching six (6) or more credit
hours, tutors who are employed twenty (20) hours or
more per week, librarians, counselors, learning center
personnel, and other professional support personnel,
but excluding all executive, supervisory, and adminis-
trative personnel, students and all other employees.
6. Beginning on or about October 11, 1975, the Union
has been the exclusive bargaining representative within the
meaning of Section 9(a) of the Act of the employees in the
above-described appropriate collective-bargaining unit.
7. Since at least early December 1975, by failing and
refusing to bargain in good faith with the Union as the
collective-bargaining representative of Respondent's em-
ployees in the above-described appropriate collective-
bargaining unit with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employ-
ment, Respondent has violated, and is violating, Section
8(a)(5) and (1) of the Act.
8. By refusing to bargain with the Union in respect to
Respondent's decision to terminate 13 unit employees
effective May 17, 1976, and July 27, 1976, and the effects of
said terminations upon said employees, Respondent has
violated, and is violating, Section 8(aX5) and (1) of the Act.
discharge was unlawful is reversed by the Board or the courts. Otherwise
this aspect of the remedy applies only to Roger Bronstad, Laura Bronner,
Melba Boyd, Willie McKenney, Sharon Smith, George Osius, Robert Riley,
Barbara Moten, Henry Davis, and Fred Bahbah.
50 See, e.g., Interstate Tool Co., Inc., 177 NLRB 686 (1969).
206
THE SHAW COLLEGE
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record in this case, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER 5 1
Respondent, The Shaw College at Detroit, Inc., Detroit,
Michigan, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in, or activities on behalf
of, Shaw College Professors' Association, MEA-NEA, or
any other labor organization, by discriminating in regard
to the hire or tenure of employment or in any other manner
in regard to any term or condition of employment of any of
Respondent's employees in order to discourage union
membership or union or other concerted activities.
(b) Refusing to bargain collectively with the above-
named labor organization as the exclusive bargaining
representative of the employees in the following unit, which
has been found to be appropriate within the meaning of
Section 9(b) of the Act:
All classroom teachers teaching six (6) or more credit
hours, tutors who are employed twenty (20) hours or
more per week, librarians, counselors, learning center
personnel, and other professional support personnel,
but excluding all executive, supervisory, and adminis-
trative personnel, students, and all other employees.
(c) Refusing to bargain collectively with the above-
named labor organization with respect to Respondent's
termination of 13 unit employees on May 17, 1976, and
July 27, 1976, and the effects on these employees of such
terminations.
(d) Coercively interrogating its employees concerning
their union allegiance or in any other manner interfering
with, restraining, or coercing employees in the exercise of
their rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer Leon Isagholian, Levi Saunders, and Vikram
Prasad immediate and full reinstatement to their former
sI In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
positions or, if such positions no longer exist, to substan-
tially equivalent positions, without prejudice to their
seniority or other rights and privileges, and make them
whole for any loss of pay they may have suffered as the
result of their discharge in the manner set forth in "The
Remedy" section of the Decision herein.
(b) Upon request, bargain collectively with the above-
named labor organization as the exclusive bargaining
representative of all the employees in the aforementioned
appropriate unit with respect to rates of pay, wages, hours,
and other terms and conditions of employment, including
its decision to terminate 13 bargaining unit employees
effective May 17, 1976, and July 27, 1976, and the effects
on these employees of their terminations, and reduce to
writing any agreement reached as the result of such
bargaining.
(c) Pay all 13 employees terminated from the collective-
bargaining unit on May 17, 1976, and July 27, 1976, who
are named in "The Remedy" section of the Decision
herein, their normal wages for the period set forth in the
said section.
(d) Preserve and, upon request, make available, for
examination and copying, all payroll records, social
security payment cards, timecards, personnel records and
reports, and all other records necessary or useful in
insuring compliance with the terms of this Order.
(e) Post at its place of business in Detroit, Michigan.
copies of the attached notice marked "Appendix." 52
Copies of this notice, on forms provided by the Regional
Director for Region 7, shall, after being duly signed by
Respondent, be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicious places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(f) Notify the Regional Director for Region 7, in writing,
within 20 days of the date of this Order, what steps the
Respondent has taken to comply herewith.
52 In the event that the Board's 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."
207