Bagel Bakers Council of Greater New York

National Labor Relations Board - Board Decisions

Oct 28, 1976

226 N.L.R.B. 622 (N.L.R.B. 1976)

622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bagel Bakers Council of Greater New York and its
Employer-Members and Bagel Bakers Union Local
338 of the Bakery and Confectionery Workers In-
ternational Union of America. Case 29-CA-887-1
October 28, 1976
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND WALTHER
On September 10, 1976, Administrative Law Judge
James L. Rose issued the attached Supplemental De-
cision in this proceeding.' Thereafter, Respondent's
filed exceptions, a supporting brief, and a brief sup-
porting parts of the Supplemental Decision. The
General Counsel filed limited exceptions, a support-
ing brief, and a brief supporting parts of the Supple-
mental Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Supplemental Decision in light of the excep-
tions and briefs and has decided to affirm the rulings,
findings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as mod-
ified below.'
The Administrative Law Judge found that the
backpay period should toll on February 1, 1968, ir-
respective of the fact that the Respondent's did not
on that date make specific offers of reinstatement to
specific individuals. We agree with this finding.
The record reveals that subsequent to the time the
employees were initially locked out there was an in-
junction proceeding under Section 10(j) of the Act
wherein on January 18, 1968, District Court Judge
Rosling granted the Regional Director's petition and
entered an order putting the parties back to the sta-
tus quo pending the determination of the unfair la-
bor practice charges by the Board.'
Following the court's order, the Union's then busi-
ness agent sent Council members a telegram ap-
i The Board's original Decision and Order in this proceeding is reported
at 174 NLRB 622 (1969).
2 We find merit in the General Counsel's exception to the Administrative
Law Judge's failure to add the sum of $1,279 to the 1967 non-Council of
interim earnings of James Goodrich The Administrative Law Judge's rec-
ommended Order is hereby amended to credit the appropriate Respondent's
accordingly. We also agree with the General Counsel's contention that the
moneys owed to Markus Weisz should be paid directly to him rather than
being placed in escrow
Regarding moneys due Morris Minton, the record reveals that during the
course of the hearing the General Counsel amended the backpay specifica-
tion to show that his adjusted net backpay was $1,166 Accordingly, the
recommended Order is modified to reflect the amended specification
3 Kaynard v Bagel Bakers Council, 67-c-776 (unreported)
plying for reinstatement on behalf of the locked-out
union members. The agent further requested, "Please
communicate with the undersigned to make all nec-
essary arrangements for the commencement of their
reemployment ...."
On or about February 1, 1968, pursuant to the
Union's request, the Respondent sent the Union a
telegram advising that the lockout was over and that
the Respondent's would reinstate discharged em-
ployees where employment was available.
In finding that the telegram-to the Union was suf-
ficient to toll backpay, notwithstanding the lack of
direct communication to each employee, the Admin-
istrative Law Judge considered the following factors.
At all times material in this industry, it was more
common than not for an employer to be assigned
employees by the Union. It was not common for an
employer to call an individual union member for
work, nor was it permissible under the contract. In
fact, under this industry practice, specific employers
do not call specific employees, even though in some
situations a union member might work on a regular
basis for a specific employer. Each of the claimants
who testified on this point agreed that negotiation
concerning returning to work after the lockout would
come through the Union, and not to them directly
from the Council or individual employees. On the
basis of the foregoing, unlike our dissenting col-
league, we agree with the Administrative Law
Judge's finding that given the nature of this industry,
and the circumstances of this case, the Union was the
employees' agent for receiving the reinstatement of-
fer and it was sufficient for the Respondent's to have
contacted the responsible representative of the
Union to advise that the lockout was over and that
they would accept employees back 4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
herein at footnote 2, and hereby orders that the Re-
spondent's, Bagel Bakers Council of Greater New
York and its Employer-Members (listed in the Ad-
ministrative Law Judge's recommended Order), their
officers, agents, successors, and assigns, shall take
4 There is evidence that the end of the lockout did not result in as many
employees being returned to work as had worked previously The Adminis-
trative Law Judge found, however, that there was a fundamental change in
the bagel industry beginning in 1966 which did have a substantial effect on
the amount of work available at each of the bakeries in 1967 The Respon-
dent's lost most of their wholesale trade Sales in 1967 were primarily retail
and as a result there was much less work available
226 NLRB No. 121
BAGEL BAKERS COUNCIL OF NEW YORK
the action set forth in the said recommended Order,
as so modified.
MEMBER JENKINS , dissenting in part:
The finding of the majority that Respondent's, by
their telegram to the Union on February 1, 1968, of-
fered full and complete reinstatement to the locked-
out discriminatees , thereby tolling the backpay peri-
od, is supported by neither the law nor the facts. Re-
spondent's should be liable for backpay until
October 1, 1968, when the parties entered into a new
collective-bargaining agreement.
In the underlying case, the Board found, inter alia,
that by locking out employee-members of the Union,
Respondent Council and its employer -members vio-
lated Section 8(a)(3) and (1) of the Act. The Board
therefore ordered the Respondent's to offer full and
complete reinstatement to each union member
locked out, and also ordered the usual make-whole
remedy ,terminating with the date of reinstatement.
On February 1, 1968, Respondent Council sent a
telegram to the Union. The telegram stated in effect
that Respondent Employers were prepared to rein-
state discharged employees whose employment was
available. The majority finds that this telegram con-
stituted a sufficient reinstatement offer , and I em-
phatically disagree . In the first place , Respondents'
offer is insufficient in that they did not make the
offer directly to the discriminatees , but rather
through the Union. Normally Respondents procured
individuals through the Union and-not by direct con-
tact . However, in the situation herein , where Respon-
dents had committed serious unfair labor practices
and the names of the discriminatees were known to
Respondents , no valid reason has been presented
why the individuals involved should not have been
directly offered reinstatement to remedy those unfair
labor practices.
Furthermore , the telegram specifies that there were
approximately only 14 openings whereas 45 employ-
ees are named in the backpay specifications. Thus,
even assuming arguendo that it was sufficient to com-
municate the offer only to the Union, it is clear that,
at best, less than one-third of the discriminatees may
have been offered reinstatement . Such an offer surely
does not comply with the Board ' s Order requiring
Respondents to reinstate all the discriminatees.
Moreover , the improbability of Respondents' pur-
ported offer is manifested by their contention that
the various Employers did not have as much work
available as before the lockout. The Respondents
made no attempt to place individuals on a preferen-
tial hiring list. Further, 'the recoi d , reveals that, in
many of the shops , owners and family members who
had not performed the work of making and baking
bagels prior to the lockout - were performing such
623
work during the lockout and after its purported end.
Any claim that they may properly displace the dis-
criminatees is obviously without merit.
I am puzzled by the failure of the majority to rec-
ognize the above considerations. In my view, the ma-
jority has failed to implement the remedy which the
Board has fashioned. The discriminatees are not
made whole for losses they suffered because of Re-
spondents' unlawful conduct, and I am compelled to
dissent.
SUPPLEMENTAL DECISION
JAMES L. ROSE, Administrative Law Judge: This is a
backpay proceeding which was heard before me at Brook-
lyn, New York, on various dates from July 19 through Au-
gust 11, 1976. Upon the record as a whole, including my
observations of the witnesses and briefs and arguments of
counsel, I hereby make the following:
FINDINGS OF FACT
1. PROCEDURAL HISTORY
The Bagel Bakers Council of Greater New York and its
various employer-members were charged with having com-
nutted unfair labor practices principally by locking out
their employees on or about February 1, 1967. The matter
was heard before Trial Examiner Joseph I. Nachman, who
on March 28, 1968, rendered his Decision, finding, among
other things, that in fact the Respondents had engaged in
violations of Section 8(a)(3) by locking out their employees
on February 1, -1967. This decision was affirmed by the
Board on February 19, 1969. Bagel Bakers Council of
Greater New York and Its Employer-Members, 174 NLRB
622 (1969). The Decision and Order of the Board was en-
forced by the Second Circuit on November 20, 1970.
N.L.R.B. v. Bagel Bakers Council of Greater New York and
Its Employer-Members, 434 F.2d 884, cert. denied 402 U.S.
908 (1971).
Additional litigation involving this matter includes an
injunction proceeding under Section 100) of the Act
wherein on January 18, 1968, District Judge Rosling grant-
ed the Regional Director's petition and entered an order
putting the parties back to the status quo pending a deter-
mination of the unfair labor practices by the Board. Samu-
el M. Kaynard v. Bagel Bakers Council, 67-c-776 (unreport-
ed). Decision on a subsequent joinder motion is reported at
68 LRRM 2140, 57 LC ¶ 12,499 (D.C.N.Y., 1968). A further
decision in this matter by Judge Rosling denying the peti-
tion for a contempt citation is reported at 70 LRRM 2581,
57 LC ¶12,571 (D.C.N.Y., 1968).
Finally, in Silverman v. N.L.R.B., 92 LRRM 2919, 78 LC
¶ 11,472 (C.A. 2, 1976), the circuit court granted a petition
for mandamus, directing the Board to determine the back-
pay award within -60 days from that decision. Accordingly,
on June 24, 1968, the Regional Director for Region 29 is-
sued a backpay specification and notice of hearing which,
along with the Respondents' answer, frame the issues to be
decided herein.
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. FACTUAL BACKGROUND many different employers in the industry.
In 1936, Isadore Glass organized the Bagel Bakers Coun-
cil for the purpose of dealing with the Union. According to
Glass' testimony, during the early l960's he sold his bakery
and became a full-time advisor to the Council. At that
time, there were 36 members of a total of approximately 45
bagel bakeries in the Greater New York City area.
In the mid 1960's, the industry began undergoing a fun-
damental change. Where the invention of the rotary oven
had allowed the `bakeries to move from their back street
and basement environments tc,storefronts, the invention of
a bagel-making machine and the influx of frozen bagels
had a substantial impact on the wholesale trade of these
bakeries. Even after the rotary oven in effect opened retail
trade, a substantial majority- of each bakery's daily busi-
ness was wholesale, either directly to delicatessens, grocery
stores,-or the like or through jobbers who in turn would
deliver the bagels to the retail outlets. The retail trade dur-
ing the early 1,960's for most of the Council members was
insignificant.
However, with the influx of the machine-made and fro-
zen bagels, particularly into the larger grocery chains, these
employers discovered that they were having a difficult time
competing. Thus, the testimony is that in 1966, for in-
stance, most of the Council members were charging in the
range of 50 cents per dozen for wholesale bagels, but were
advised that the machine bagels were wholesaling for in the
range of 30 cents per dozen. Whatever the precise, figures
are with regard to the machine bagels, there is no question
but that bagels made by machine began to come into the
New York market in significant enough quantities that
each of the Council members began losing substantial
amounts of wholesale business.
Thus, the nature of the, bagel baking business changed
radically from one of being strictly bakeries to being baker-
ies in connection with other food-related endeavors such as
delicatessens, grocery stores, or restaurants. And it is now
the case that all of the employers here', while still maintain-
ing their bakeries and still baking bagels, run their bakeries
in connection with groceries or cafes.
Further, as the bagel industry changed from being strict-
ly wholesale bakeries to retail outlets for bagels, as well as
other food items, the number of bakeries in New York
increased substantially from 45 or so in the mid-1960's to
something in the range of 200 now.
These circumstances are at the core of the basic dispute
the Council had with the Union in 1966-67 and which ulti-
mately lead to the unfair labor practices herein. Specifical-
ly, in negotiations for a new contract, to replace the one
which was to-expire on January 31, 1967, the Respondents
asked for economic relief. Briefly the Respondents wanted
the Union to take a reduction in pay, and eliminate or re-
duce the guarantee, as well as reduce or eliminate other
fringe benefits. (Most of these goals were in fact agreed to
by the Union for non-Council members during the lockout
and for the Council in October 1968).
In connection with their bargaining posture, which was
found to be an unfair labor practice in violation of Section
8(a)(5), the Respondents decided to lockout all of their em-
ployees beginning February 1, 1967. Thus, from and after
February 1, 1967, the Respondents refused' to allow mem-
While the underlying factual situation is set forth in de-
tail in the earlier Decision, a brief summary here is in or-
der.
It is a monumental understatement to note that bagels
are popular food items in the New York area. The taste for
bagels as well as the art of making them immigrated from
Middle Europe in the late 19th and early 20th centuries.
The method of making and baking bagels did not change
substantially until the early 1960's and even today, in many
bagel bakeries, the bagels are handcrafted.
Thus, in the early years of the industry in New York
City, the bagel bakeries were located in the basements of
apartment houses or other buildings where there was ac-
cess to large furnaces which were converted' into ovens.
During that period, the traditional method of baking ba-
gels was to have a basic crew of four. Two individuals
would mix the dough and form the bagels, and one would
bake them. The fourth was a kettleman, or helper, whose
responsibility it was to boil the bagels in water and do
cleanup chores.
With the invention of the rotating oven, in the early
1960's, bagel bakeries were able to move to storefront loca-
tions because these ovens were moveable, whereas the ear-
lier brick ovens were not. This had the effect of changing
the industry from a totally wholesale business to some re-
tail. Still, however, the basic method of baking the bagels
was the same, requiring the crew of three bakers and one
helper as the basic work force.
Also standard was the method by which the bakers were
compensated. This was on a piece work basis whereby the
baker, or foreman, received 29 cents per box (under the
1965-66 contract) and the makers each received 26 cents
per box. The kettleman was on an hourly rate which, ac-
cording to the testimony, figured out to be in the range of
14 cents per box. There are 56 bagels in a box and, under
the contract, each baker was guaranteed a minimum of 100
boxes per day. Thus, for the standard crew the bakery
guaranteed 300 boxes of work per day. If a crew was called
for and was unable to produce that many, or the bakery
did not want that much, they would nevertheless be paid
for their 100 boxes.
Also traditional was the way in;which bakers were em-
ployed. A bakery owner would call the Union and tell the
Union's business agent how many boxes of bagels would
be required for a particular day. The Union would then
send the appropriate number of individuals. It happened
that, for the most part, the employers' requirements were
generally consistent and generally they used the same peo-
ple week after week. Nevertheless, since the requirements
of any given bakery varied from day to day and week to
week, it happened that most members of the Union would
work for more than 1 bakery each week and during the
year might work for as many as 15 different bakeries, on a
sporadic and more or less ad hoc basis. The point is that the
bagel bakers were sent to their jobs out of the union hall, it
was the Union to which employers looked for people, and
it was the Union which controlled to which job a given
individual would go. And this was true whether one was
essentially a steady employee of one bakery, or worked for
BAGEL BAKERS COUNCIL OF NEW YORK
hers of the Union to work in their shops. Such as was
performed throughout the backpay period was done by
owners of the various bakeries and nonunion employees.
Prior to the lockout, the owners did not do any of the craft
work.
Iii. THE BACKPAY SPECIFICATION
In the backpay specification, it is contended that the
backpay period runs from February 1, 1967, the date of the
lockout to October 1, 1968, when a new collective-bargain-
ing agreement between the Respondents and the Union
became effective. It is also alleged that backpay liability as
to certain of the Respondents terminated prior to October
1, 1968.1
A. Loss of Earnings
For purposes of backpay, it is assumed that, but for the
unfair labor- practices, each of the discriminatees would
likely have earned the same wages in 1967 as he would
have earned in 1966. It is also assumed that each discrimi-
natee would have earned the same amounts from each of
the various employers for whom he worked in 1966 in the
same ratio. If, for instance, an employee earned half of his
1966 wages from one Council Member and the other half
from several non-Council members, then, absent the unfair
labor practices, it is assumed he would have earned half of
his wages from that particular Council member and the
other half from non-Council members during the backpay
period. The backpay period then is divided into two sec-
tions-1967 and the first 9 months of 1968. To calculate
the 1967 net backpay for each discriminatee, his particular
interim earnings in 1967 are subtracted from his 1966 gross
earnings . Similarly, to arrive, at the net backpay in 1968,
each discriminatee' s 1968 -interim earnings are subtracted
from his 1966 earnings and then multiplied by three-
fourths. Having arrived at the results for each section of
the backpay period, the amount due from each Respon-
dent is allocated according to the percentage that particu-
lar Respondent contributed to the employee's total earn-
ings in 1966.- Thus,' if 'a claimant' s net backpay, for
instance , was $5,000 and that claimant earned half of his
1966 earnings from one Council member, then that Coun-
cil member's liability to that claimant would be $2,500.2
'As to Flatlands Bagel Bakery, Inc, liability terminated on June 15,
1967, pursuant to the Decision of the Trial Examiner. The liability of Culver
Bagel Baker, terminated on June 21, 1967, pursuant to the Order of the
Board.
2 It is noted that in framing the backpay specification the Regional Direc-
tor determined to calculate the backpay on yearly rather than quarterly
periods because of the particular 'nature of this industry, namely, that em-
ployees moved from one employer to another, not all of the employees in
the industry were involved in the unfair labor practices, and the industry is
somewhat seasonal. Thus, to use all four quarters as the base year would
appropriately reflect seasonal ajustments While this does not strictly adhere
to the formula in F. W Woolworth Company, 90 NLRB 289 (1950), such
seems reasonable under the special facts of this case And the policy consid-
erations prompting the Woolworth determination to calculate backpay on a
quarterly basis are not present here. The fundamental concern in Woolworth
involved, protracted periods of discrimination, and the realization that once
a discnmmatee finally found other employment, if it was at a higher wage,
ultimately his interim earnings would exceed the total backpay. Thus, it
625
B. Holiday and Vacation Pay
Early in the hearing it developed that the discriimnatees
also received a fringe benefit in the form of holiday and
vacation pay during the base year which was not reflected
in their gross backpay. Thus, counsel for the General
Counsel moved to file an amendment to the backpay spec-
ification in order to allege vacation and holiday pay as an
additional item to be included as lost earnings.
During 1966, each employer paid into the vacation and
holiday trust fund an amount equal to 8-1/2 cents per box.
This money was then distributed equally among the bakers
with the kettlemen receiving a somewhat lesser amount.
Thus, in 1966 each of the bakers received $1,239.44 in va-
cation and holiday pay. Each baker also received approxi-
mately $224 in 1967 for holiday and vacation pay accumu-
lated to the time of the lockout.
Following the lockout, the employers in the industry still
using bakers changed the method of compensating for va-
cation and holiday pay to a straight $3.50 per day for each
day an employee worked. This amount is reflected as earn-
ings and is included in each of the claimant' s interim earn-
ings from non-Council members in 1967 and 1968.
The General Counsel contends that the total amount of
$1,239.44 should be allocated, on a pro rata basis, by each
of the Respondents for each discriminatee. In the alterna-
tive it is contended that holiday and vacation losses should
be calculated as a proportion of - $1,240 as to each
claimant's 1966 earnings from Council members.
W. THE BURDEN OF PROOF
In the original answer to the backpay specification, the
Respondents, in addition to a general denial, enumerated
51 separate affirmative defenses, many of which are con-
ceptually overlapping. In the answer to the amended back-
pay specification relating to holiday and vacation pay, the
Respondents set forth 14 separate affirmative defenses.
The Respondents' defenses will be treated herein according
to subject matter.
It should first be noted that the burden of proof on most
of the items raised during the course of this hearing is on
the Respondents. Thus:
. .. in a backpay proceeding the burden is upon the
General Counsel to show the gross amounts of back
pay due. When that has been done, however, the bur-
would be to a respondent 's advantage not to offer reinstatement and thus
toll backpay Such considerations are not present here. The backpay period
lasted just 1 year . Most employees had earnings throughout, but such as
would be credited as interim earnings cannot , with certainty, be allocated to
a particular quarter
Finally, the data available, both to calculate gross backpay as well as
interim earnings, are not in forms to use a quarterly method , with any
expectation that such would be more accurate. From the nature of this case,
and the evidence presented, I do not believe that the claimants will be
penalized nor the Respondents rewarded by computing the losses on a year-
ly basis
However, I do not believe it reasonable to include as expectant earnings,
and therefore gross loss, 1966 earnings from other, than Council members
Under the General Counsel's theory, the Respondents would be liable even
for a claimant's lost non-Council earnings I therefore will find the gross loss
to be only the 1966 Council earnings See "Formula and Remedy" section,
infra.
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
den is upon the employer to establish facts which
would negative the existence of liability to a given em-
ployee or which would mitigate that liability [N.L.R.B.
v. Brown & Root, Inc., et al, 311 F.2d 447, 454 (C.A. 8,
1963).]
Further, as the Board recently said:
.. . the backpay claimant should receive the benefit
of any doubt rather than the Respondent: the wrong-
doer responsible for the existence of any uncertainty
and against whom any uncertainty must be resolved
[Footnote omitted; Southern Household Products Com-
pany, Inc., 203 NLRB 881 (1973).]
Finally, recognizing "the impossibility of exactitude,"
N.L.R.B. v. Rice Lake Creamery Co., 365 F.2d 888
(C.A.D.C., 1966), in devising the backpay formula, an ap-
proximation of what would have been earned during the
backpay period is permissible. Such is obviously applicable
to this situation, given the nature of the industry, and the
lapse of time between the backpay period and the current
proceeding which necessarily has had the effect of limiting
the evidence available.
In short, having presented a formula reasonably calcu-
lated closely to approximate the loss of earnings suffered
by each of these claimants as a result of the Respondent's
unfair labor practices, the burden is on the Respondents to
show that for any given claimant no backpay is due or the
amount of backpay should, for some reason, be mitigated.
V. RESPONDENTS' DEFENSES AND CONCLUSIONS
A. The Backpay Period
The Respondents contend that the backpay period
should toll on or about February 1, 1968, because pursuant
to an order of Judge Rosling in the 10(1) proceeding, supra,
the Respondents in fact offered full and complete rein-
statement to the locked-out employees.
On this point generally, counsel for the General Counsel
contends that the Respondents did not actually contact the
individual discriminatees. Accordingly, the backpay liabili-
ty should not be tolled until October 1, 1968, when the
parties entered into a new collective-bargaining agreement.
In agreement with the Respondents, I conclude that the
backpay period should toll on February 1, 1968, irrespec-
tive of the fact that the companies did not make specific
offers of reinstatement to specific individuals.
At the time material in this industry, it was more com-
mon than not for an employer to be assigned employees by
the Union. It was not common for an employer to call an
individual union member for work. Indeed, this was not
even permissible under the contract. Nor, as a matter of
fact in practice, did a specific employer call specific em-
ployees, even though in some situations an employer-mem-
ber of the Union might work on a regular basis for a specif-
ic employer. Nevertheless, given the nature of this industry
and this factual situation, I am persuaded that it was suffi-
cient for the Respondents to have contacted the responsi-
ble representative of the Union to advise that the lockout
was over and that they would accept employees back. The
Luton was the employees' agent for purposes of receiving
the reinstatement offer. Lipman Bros. Inc., 164 NLRB 850
(1967).
In fact, following Judge Rosling's order of January 18,
1968, the Union's then business agent sent a telegraph to
Council members applying for reinstatement on behalf of
the Union's locked-out members. He further said, " Please
communicate with the undersigned to make aft necessary
arrangements for the commencement of their ;i 1oyment
On February 1, the Council sent a telegram to the Union
to the effect that in compliance with Judge Rosling's order,
the lockout was over and the employers would hire mem-
bers of the Union.
Further, each of the principals of the various Respon-
dents testified, without contradiction, that after February 1
he personally contacted the Union' s business agent and
requested the appropriate number of employees for his spe-
cific production needs. And there is evidence that the
Union did in fact send its members to some of the various
employers.
Each of the claimants who testified on this point agreed
that notification concerning returning to work after the
lockout would come from the Union, and not to them di-
rectly from the Council or individual employers.
Parenthetically, there is some testimony to the effect that
the return to work in February was "a cooling off period,"
that a second lockout occurred in April 1968, or that the
Respondents did not in fact comply with the order of
Judge Rosling.3
The Respondents actually contacted the Union, which
was their source of employees and some members of the
Union (claimants here and others) in fact did go to work
for various of the Respondents. I therefore conclude that
the Respondents did everything reasonably necessary to
end the lockout and rehire the claimants . Under the cir-
cumstances of this industry, I conclude that the Respon-
dents were not required to contact each individual member
of the Union, or even those who had worked for a particu-
lar Respondent in 1966, in order to toll the backpay period.
The Respondents acted consistently with the industry prac-
tice in an effort to bring the employees back to work. In
fact, the Union knew this and, presumptively, so did the
discrimmatees.
The indication of some claimants that the return to work
was preplanned to be of short duration, or that it was fol-
lowed by a second lockout, is only that. There is no evi-
dence that the recall in February should not be found an
end to the lockout if, as I conclude, the offer of reinstate-
ment at that time was total and unconditional. To the ex-
tent that the Respondents did not have as much work
available as before the lockout does not mean the backpay
period should continue, as suggested by the General Coun-
sel.
3 The Respondents contend that inasmuch as the Regional Director
sought a citation in contempt of the January 18 order , which was denied,
therefore the backpay period must be deemed to have tolled I do not be-
lieve that Judge Roslmg's decision not to hold the Respondents in contempt
is res judicata of the tolling issue Acts or omissions of the Respondents,
which might not be considered contemptuous , might nevertheless not be
considered sufficient performance to toll backpay liability
BAGEL BAKERS COUNCIL OF NEW YORK 627
B. Exclusion of January 1967
The specification includes in the backpay period Janu-
ary 1967, irrespective of the fact that the lockout did not
begin until February 1, 1967. Counsel for the General
Counsel argues that this is permissible inasmuch as earn-
ings for the month of January 1967 are also included as
interim earnings and thus the Respondents are not preju-
diced. While this may or may not be the actual situation
with regard to each of the discriminatees, it certainly need
not be. It could be, for instance, that one or more of the
discriminatees had no interim earnings, in fact, in January
1967. If such were the case, then the Respondents would be
liable for backpay for some amount during a period when
they had not committed the unfair labor practice. Accord-
ingly, in agreement with the Respondents, I conclude that
the month of January 1967 should be excluded from the
backpay period, and I find that the backpay period runs
from February 1, 1967, to February 1, 1968.
C. Loss of Work Availability
The principal contention of Respondents is: as a result
of fundamental changes in the industry, supra, each em-
ployer suffered a substantial amount of business loss which
resulted in a diminution of the number of jobs available
during the backpay period.'
Through corporate 'records and other documentary evi-
dence for each Respondent, it, was established that in 1967
there were substantially reduced bagel'sales. Since payroll
is directly proportional to sales, reduced sales necessarily
would reduce the amount of work available for members of
the Union and specifically the discriminatees herein.
At the outset, it should be noted that this defense is
available in mitigation of damages if the Respondents are
in fact able to carry their burden of proof. N.L.R.B. v.
Mastro Plastics Corp., 354 F.2d 170 (C.A. 2, 1965). Of
course the loss of work, and therefore loss of job availabili-
ty, must be related to factors apart from the unfair labor
practices which the Respondents were engaging in.
On the basis of the record, I am satisfied that in fact
there was a fundamental change in the bagel industry be-
ginning in 1966 which did have a substantial effect on the
work available in each of the Respondents' bakeries in
1967. The Respondents lost most of their wholesale trade.
Their sales in 1967 were primarily retail and, as a result,
there was much less work available.
The Respondents therefore contend that the amount of
backpay liability of each should be reduced by the same
percentage as their loss of business in 1967 compared to
1966. Documentary evidence suggests that this loss ranged
from 60 to 65 percent, Thus, the Respondents argue that
their backpay liability 'should be reduced by that amount.
In my view, however, the amount of business a given
Respondent lost in 1967 is not material. What is material is
how much business remained. The issue is how much work
° Although framed in various ways, this basic contention is the substance
of the following paragraphs in Respondent 's answer I, V, VI, VII, VIII, IX,
XII, XVII, XXII, XXVII, XXXVIII, XXXIX, XXXL, XXXLL XXXLII,
XXXLIII, XXXLV, XXXLVI, and XXXLVIII
would reasonably have been available to the discriminatees
but for the Respondents' unfair labor practices. It is the
amount of bagel baking business that each Respondent in
fact had in 1967 which is critical in determining their limits
of liability.
To determine the amount of bagel baking work available
in 1967 requires calculating the bagel baking payroll and
this in turn is dependent upon how many bagels each Re-
spondent baked in 1967. This can be done, perhaps not
with space-age exactitude but at least with reasonable
closeness so as fairly to calculate the extent to which each
Respondent's liability ought to be limited.
Joseph Rubenstein, of Rubenstein Bagels, Inc., submit-
ted into evidence production and payroll records for 1966.
They show roughly that the bagel baking payroll was ap-
proximately $1 per box. Thus, for the week ending January
14, the payroll was $3,505 and 3,510 boxes were produced
(a payroll-per-box ratio of $.99). In the week ending Au-
gust 12 there were 2,058 boxes produced with the payroll of
$2,101 (a payroll-per-box ratio of $1.02). And in the week
ending December 16, there were 1,407 boxes produced
with a payroll of $1,358 (a payroll-per-box ratio of $.96).
In addition, Louis Madorsky, of Bageltown, Inc., testi-
fied that in 1966 the basic bagel baking crew consisted of
two makers, one baker, and one kettleman whose total
wages for 100 boxes came to approximately $100.
Finally, the corporate income tax return of Tri-Boro
Bakery for the fiscal year ending January 31, 1967, shows
sales of $415,954 and bakers' wages of $96,370. Dividing
the sales by the bakers' wages (415,954/96,370 = 4.32)
and dividing that result by 56, the number of bagels in a
box, establishes that Tn-Boro was charging $.07 per bagel.
This retail charge for a bagel conforms to the memory of
those employers who testified.
These items of evidence are mutually reinforcing, each
independently establishing the ratio of sales to payroll. I
therefore conclude that a reasonable way to calculate the
amount of the bagel baking payroll available at each Re-
spondent bakery during the backpay period would be:
Total bagel sales 1967/$.07 X 56 = boxes sold
Boxes sold X $1 = payroll
Where $.07 = retail price per bagel
56 = number of bagels per box
It is noted that all of the employers who testified said
that in fact they did bake bagels in 1967 and that the work
was performed by either themselves or the members of
their families. The amount of bagel,payroll thus is not ac-
curately reflected in their corporate tax returns or other
records, inasmuch as these individuals, who in all cases
were officers of their respective companies, received sala-
ries as such, as distinguished from any wages which might
have been paid for production work. In short, the employ-
ers' testimony establishes that more bagel production oc-
curred in 1967 than is reflected in their payroll records.
Where the records submitted are for fiscal years differ-
ent from the period February 1, 1967, to February 1, 1968,
I have taken the closest fiscal year compatible with the
backpay year. While this may bias the result somewhat, the
error, if any, should not be too great and,in any event this
is the best that can be done with the data available. The
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assumption is that each Respondent's business between
February 1, 1967, and February 1, 1968, would be essen-
tially the same during any proximate 12-month period.
For Tri-Boro Bagel Co., Inc., for instance, the formula is
applied as follows:Year ending January 31, 1968, sales
$2,028,642; $2,028,642 = $3.92 = 58,327 boxes =
$58,327 payroll.
Thus the limit of Tri-Boro liability would be $58,327.
The evidence is, and I find, that none of Respondents' pro-
duction during the period was performed by union mem-
bers. But absent the unfair labor practice, at least this
amount of work would have been available to the locked-
out employees. The liability limits for the Respondents are
set forth in Appendix 47. Where, as in the case of Pop's
Bagel Bakery , Inc., as successor to D & H Bagel Bakery,
the limit is less than the backpay found due, the amount of
each claimant 's entitlement is prorated accordingly.
D. Overtime Prohibition
The Respondents further argue that inasmuch as the
contract in existence in 1966 prohibited employees from
working overtime and inasmuch as this provision was in
fact enforced, in no event could the'backpay due each em-
ployee exceed $113 per week-the guaranteed minimum
times four . In essence , the Respondents argue that to allow
a discriminatee to recover more than this amount would be
tantamount to rewriting the contract, by allowing the
claimants to recover for overtime which the contract pro-
hibited.
This defense is without merit. It is true that the contract
does have a limitation of overtime provision, and it does
appear that on some occasions the Union did enforce this
provision in order to spread out the available work to its
members. It is also quite clear from the totality of the rec-
ord that most of the employees in fact work more than the
minimum on each day that they were employed. The over-
time clause was not a device to limit a Respondent's pay-
roll. Rather it was designed to protect employees who
wanted to limit their workday to 100 boxes, and also to
protect employees generally so that in slack periods the
work available in the industry would be spread around.
These factors, particularly including the fact that during
the base period employees did work "overtime," lead to the
conclusion that, but for the Respondent's unfair labor
practices, the discriminatees could have expected to have
worked the same amount in 1967 irrespective of the con-
tract provision. The test in determining the amount of
backpay owing is how much the discriminatee might rea-
sonably have expected to earn but for the employer's un-
fair labor practices. To the extent any of a claimant's back-
pay may include "overtime ," such is nevertheless not
diminished.
E. The Basic Assumption
The Respondents also contend that the basic assumption
of the backpay specification-that absent the unfair labor
practices the claimants would have earned the same in
1967 as they did in 1966-is erroneous.5 As indicated 6 Affirmative defenses pars X, XV
above, this assumption appears reasonable. The Respon-
dents brought forth no evidence of probative value to sug-
gest that the assumption is not reasonable, other than that
submitted for their basic economic defense. Inasmuch as I
have concluded that the Respondents' liability will be lim-
ited only to the amount of bagel payroll which actually
existed in 1967 , so much of the Respondents ' defense as is
based upon this factor is affirmed.
So much of the Respondents ' defense that the assump-
tion is generally erroneous is rejected as not having been
sustained by competent probative evidence.
F. Loss of Business
The Respondents also contend that, in addition to the
loss of work availability , each employer was in a sufficient-
ly disadvantageous economic condition so that ,there was
little work available for the claimants during the backpay
period .' Again, to the extent that this affirmative defense is
addressed to the question of reduced sales and therefore
work availability , such has been considered above. To the
extent that the Respondents meant to establish a separate
defense, there is no competent probative evidence to sus-
tain it.
G. The Base Year Calculations
In paragraph XVIII of the answer, the Respondent's
claim that the calculation of each claimant's 1966 gross
earnings as well as his interim earnings are not based upon
reliable or best evidence. While approximation had to suf-
fice in some cases,- given that this hearing was conducted
some 10 years after the base period, it is expected that the
best evidence would not be available in every case. I am
nevertheless satisfied that on balance the calculation of
each discriminatees' gross earnings in 1966 as well as his
subsequent interim earnings are as accurate as can be rea-
sonably expected. Further, the Respondents brought forth
no specific evidence of inaccuracies . On the other hand, in
those few cases where data as to a given claimant was
shown during testimony to have been inaccurate, the calcu-
lations have been corrected and the backpay due reflects
the corrected data.
H. The Discrimmatees Would Not Have Worked for the
Respondents
The Respondents argue that because of the change in the
economic condition of the industry generally, and of the
Respondents in particular, resulting in a reduced amount
of work available, even had there had been no lockout the
claimants would not have been willing to work for any of
the Respondents. Accordingly, they should not be entitled
to backpay. At best this is pure speculation and cannot be
accepted. The benefit of any doubt on this, as well as other
issues, must be resolved in favor of the claimants. Accept-
ing the facts in the light most favorable to the Respondents
still leaves a doubt with regard to whether or not the claim-
5Affirmative defenses pars III , IV, XXV, XXVI, XXXV, LI.
BAGEL BAKERS COUNCIL OF NEW YORK 629
ants would have worked had they not been locked out.
This defense must be rejected.
1. The Claimants did not Want To Work and Refused To
Work
Similarly, the Respondents' defense that the discrimina-
tees did not want to work (pars. XVI, XVII, and XXI) is
speculative and is rejected as is the Respondents' defense
that the discrimmatees refused offers of employment (pars.
XXIV and XXX). There is no evidence of a specific Re-
spondent offering work to any specific claimant which was
refused.
Along this line, the Respondents also argue that the
claimants did not make themselves available (pars. XVIII
and L). For the same reasons as are outlined above and in
the previous section, this defense is rejected.
J. The Union's Referral System
The Respondents contend in paragraph XIX that the
nature of the Union's referral system would have limited
the work each claimant would have been assigned in 1967.
Hence to that extent the backpay of each claimant ought to
be reduced. This again is a speculative argument which has
no real basis in probative evidence and upon which the
Respondents have not sustained their burden of proof.
K. Seniority
The Respondents argue that somehow the seniority of
the various claimants would have affected which one got
work, thereby reducing the amount of backpay owing (par.
XX). The Respondents did not explain their theory in this
regard, nor offer evidence in support. This defense will be
rejected.
L. Interim Earnings
It is further contended that each of the discriminatees
had more interim earnings than were credited in the spec-
ification (pars. XXIII and XXIV). It should be noted that
pursuant to the Second Circuit decision in Mastro Plastics,
supra, in fact counsel for the General Counsel had avail-
able for examination all of the discrimmatees except those
who by agreement were not required to testify. In some
cases, as a result of examination, it was concluded that
additional interim earnings should be credited and, to the
extent such is the case, the backpay calculations as to those
individuals have been changed.
In general , however, there is no evidence running to all
of the claimants that the interim earnings admitted to by
counsel for the General Counsel are not an accurate reflec-
tion of each claimant's actual earnings during the backpay
period.
nesses, thereby took themselves from the available labor
pool. From the time they started their own businesses, they
should be considered not to have been available for work
and the backpay period as to them should be tolled accord-
ingly.
Generally, when one makes himself unavailable for work
his backpay is tolled. But I connot conclude such was the
situation here.
First, I do not believe that the discriminatees should be
penalized for doing what they were required by law to do;
namely, mitigate their losses. Since work was unavailable
to the discriminatees from the Council members, and pre-
sumptively not enough for all was available from non-
Council members, to remain in this industry the only alter-
native for the discrimmatees was to start their own baker-
ies. But they did not thereby make themselves unavailable
for work for Council members because of the nature of the
industry. They could very easily have worked in their own
shops and still have been available to work with the Coun-
cil members on the periodic basis which most of their work
was done.
Finally, as the Board said in Heinrich Motors, Inc., 166
NLRB 783, 785 (1967): "[S]elf-employment is not the
equivalent of a willful loss of earnings [e.g., withdrawal
from the labor market] but is to be treated as other interim
employment." Accordingly, I reject the Respondents' de-
fense that when a given claimant opened his own bakery
during the backpay period, he thereby made himself un-
available for work and should be penalized. Of course,
such earnings as these claimants had in self-employment
are credited as interim earnings.
N. Unavailability is Result of Interim Jobs
Similarly, the Respondents argue that because the dis-
criminatees had earnings through interim jobs both in
and out of the industry they thereby waived their entitle-
ment to backpay (par. XXVIII). This argument, as with the
self-employment defense, is rejected. It is unreasonable to
penalize an individual for doing that which the law re-
quires him to do. By attempting to mitigate damages, a
claimant does not waive his entitlement to recover his loss-
es.
0. The Claimants Did Not Mitigate Damages
In paragraph XXII, the Respondents raise precisely the
converse argument. That is, the Respondents contend that
the claimants should be denied backpay because they did
not attempt to mitigate damages by getting other jobs.
There is no evidence that any claimant did not attempt to
find work. While this defense has legal merit, the Respon-
dents nevertheless have the burden of establishing it by a
preponderance of the evidence which I conclude, they have
not done."In fact, each claimant is shown to have had some
interim earnings. Accordingly, this defense will be rejected.
M. Self-Employed Claimants
Following the lockout a number of claimants took up
the business of bagel baking. The Respondents contend
that these discriminatees, once they started their own busi-
P. Reduced Piece Rate
The new 1967 contract called for a reduction of the
baker's piece rate from $.28 to $.26 per box. Thus, argue
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondents, any backpay liability should be reduced
by 7 percent,-the amount of the rate reduction. In effect,
the-Respondents are asking for a conclusion-that, absent
their unfair labor practices, the Union would immediately
have agreed to a new contract with the lower rates. Such.a -
conclusion is not warranted. Even though as a result of
collective bargaining the rate structure was changed, as
were other economic benefits, such does not mean that the
Respondents have sustained their burden of proving the
backpay assumption to be erroneous. Again, any doubt
must be resolved in favor of the_ claimants. And here, at
least, there is a doubt concerning whether and to what ex-
tent the reduced rate would have affected the claimants'
earnings in 1967. Accordingly, this defense is rejected.
Q. Vacation and Holiday Pay
The Respondents make a number of defenses with re-
gard to the General Counsel's amended -specification to
include vacation and holiday benefits. In addition to the
basic theory of the calculations, which will be discussed
below, the Respondents contend: that this item is^ barred
by latches; that to amend the specification results is denial
of due process; that no credit was given for the fact that
non-Council members also contributed; that the formula
was changed in 1967; that the computations are inaccu-
rate; that the boxes of bagels produced were reduced
(which is essentially the economic defense the Respondents
contend for backpay generally); and that the backpay pe-
riod was tolled.
With regard to the matter of latches, I conclude that the
General Counsel, on behalf of the claimants, is not barred
from bringing forth this item. It is a legitimate item of loss.
The specific theory upon which this defense is based is
that this item of backpay was not told the Respondents
until during the hearing. While such is unfortunate, never-
theless it should not operate to deprive the claimants from
recovering the total amount due them as the result of a
discrimination against them, nor should it operate to allow
the Respondents an economic benefit as a result of their
unfair labor practices. Finally, the Respondents have cited
no authority for their proposition in this respect.
The Respondents claim lack of due process notice with
regard to the amendment to the specification. It is noted
that in fact, prior to the time that counsel for the General
Counsel actually submitted the amendment on August 5,
there had been more than 2 weeks of testimony concerning
this particular issue. I conclude that the Respondents had
ample notice of this particular issue to frame their defense.
And, in fact, the Respondents-did meet this issue both by
formal answer and by interrogation of the witnesses, both
before and after the amendment was submitted. I conclude
that the Respondents were'not prejudiced by the amend-
ment, or by my denial of a continuance of the hearing.
However, in agreement with Respondents, I conclude
that the proposed method of computing the amount due
each claimant is inaccurate.
In brief, by the amendment it is sought to recover from
Respondent the total amount of vacation and holiday pay
each claimant received in 1966, regardless of how much
employment that claimant had with a particular Respon-
dent. No consideration is given to the fact that in 1966, for
instance, some amount of the vacation and holiday pay
which a claimant received was paid by non-Council mem-
bers. Thus, the formula submitted is rejected in favor of the
one set forth below (which is essentially counsel for the
General Counsel's alternative).
R. Specific Neptune-Brighton Defenses
Neptune-Brighton Bagels, Inc., argues additionally that
the Board lacks jurisdiction to enter a backpay order
against it. Although Neptune-Brighton has been doing
business since June 1967 and has been a member of the
Bagel Bakers Council since that time, it was not made a
party to this matter until served with the backpay specifica-
tion in June 1976. Thus, it argues, not having been made a
party to the underlying case, the Board has no jurisdiction
to enter an order here. Neptune-Brighton further argues
that it is not a successor to Neptune Bagel Bakers, Inc.,
and therefore would not be liable under the Board's Order
as enforced by the Second Circuit, in any event. Both of
these defenses are rejected.
With regard to the question of jurisdiction, while it may
have been better practice to have served Neptune-Brigh-
ton, I cannot but conclude that as a member of the Bagel
Bakers Council, prior to the hearing of the unfair labor
practices herein, Neptune-Brighton had actual notice" of
the proceeding. In fact its agent, the Council, was notified
and did participate in making all the defenses available.
The mere fact that Neptune-Brighton was not itself served
with formal papers in this case does -not mean that the
Board does not have jurisdiction over it with regard to
remedying the unfair labor practice of its predecessor.
With regard to the question of successorship, it is noted
that the principal owner of Neptune-Brighton was in fact
an employee of Neptune until the time of the lockout. At
that time or shortly after, Neptune apparently ceased doing
business. A few months later that employee, Donald Cha-
kofsky, bought the business; namely, the equipment and
"good will." He took a lease from the owner of Neptune
and began operating the bakery doing the same work in the
same building.
Since Neptune-Brighton joined the Council and joined
the lockout, it of course did not use the same employees as
Neptune, except for the current owner. Nevertheless, it is
reasonable to conclude that, but for the lockout, Neptune-
Brighton would have gone to the same employee pool as
Neptune did, namely the Union. And as a union shop and
Council member, it reasonably would have hired generally
the same employees, if not precisely the same individuals.
In addition, Neptune-Brighton purchased Neptune's
"good will" for $5,000 which certainly is an indication of a
continuity of business enterprise. Neptune sold its trade
name, the right to use its telephone number, and, impor-
tantly, agreed not to compete with Neptune-Brighton with-
in the Borough of Brooklyn for 10 years.
Finally, Neptune-Brighton did_ join the Council, even
though on notice that a labor dispute existed between the
Council and, the Union. Chakofsky testified that he knew
of the labor dispute but did not know of the "lockout." I
discredit any inference sought to be advanced that he pur-
BAGEL BAKERS COUNCIL OF NEW YORK 631
chased Neptune's business innocent of any knowledge that
Neptune was involved in a labor dispute. Chakofsky, after
all, was an employee of Neptune and a member of the
Union. I therefore find that Neptune-Brighton was a suc-
cessor to Neptune and is liable for its unremedied unfair
labor practices. In addition, by joining the Council, Nep-
tune-Brighton aligned itself with the Council's actions, in-
cluding the unfair labor practices. United States Pape &
Foundry Co. v. N.L.R.B„ 398 F.2d 544 (C.A. 5., 1968);
Golden State Bottling Co., Inc. v. N.L.R.B., 414 U.S. 168
(1973).
S. Neptune's Defenses
Neptune, which is alleged in the backpay specification to
be liable jointly and severally with Neptune-Brighton,
claims that it is a defunct corporation and should be ex-
cused from this action. While there is some evidence that it
is defunct, and while I conclude that Neptune-Brighton is
liable for the backpay amounts due herein, I cannot ab-
solve Neptune from liability. It has already been adjudicat-
ed liable for damages resulting from the unfair labor prac-
tices. Whether it is now defunct and whether any judgment
is -now collectable is, of course, a different matter, one
which is not appropriate for decision in this forum. The
matter of liability, however, and allocation of liability
should stand. -
T. Pop's Bagel Bakery Defense
Pop's Bagel Bakery specifically argues that it did not
merge with D & H Bagel Bakery, and therefore is not lia-
ble for D & H's unfair labor practices. This allegation was
fully adjudicated and it was found that "Pop's Bagel Bak-
ery and D & H Bagel Bakery constitute a single integrated
business enterprise which is responsible for remedying the
unfair labor practices herein found." 174 NLRB at 632.
Since the question of Pop's liability for the damages caused
by the unfair labor practice at D & H has been adjudicat-
ed, this defense must be rejected.
U. Flatlands' Defense 7
Flatlands Bagel Bakery, Inc., argues that, inasmuch as
the rate for a baker was reduced in 1967 following collec-
tive bargaining from $.29 to $.26 per box, the amount of
backpay owing the baker' herein should be reduced accord-
ingly. Flatlands also argues that due to economic condi-
tions in the industry the president of Flatlands who there-
tofore had not worked as a baker received permission from
the Union to do so. Therefore, the job of a baker was not
available to the backpay claimants. Finally, Flatlands ar-
gues with the other Respondents that the vacation and hol-
iday pay formula changed in 1967 and therefore it has no
liability for this factor.
7 Flatlands failed to file an answer and counsel for the General Counsel
moved for judgment. I hereby deny the motion The case was at issue
through the answer of the Council and even though Flatlands stands in a
somewhat different position than other Council members, I do not believe
the General Counsel or Charging Parties have been prejudiced.
With regard to these defenses, suffice to note that what
actually happened during the early months of 1967 while
Flatlands was participating in a lockout and what might
have happened but for Flatlands' unfair labor practices are
two different matters. In this case any doubt which rises as
a result of Flatlands' unfair labor practices must of course
be resolved in favor of the discriminatees and I do so.
There is no reason to believe -that, had Flatlands not
been involved in the unfair labor practices, the rate for a
baker would have changed any earlier than June 1967,
when Flatlands ceased its lockout. The same is true with
regard to the work availability. There is no particular rea-
son to believe that Flatlands would not have used a baker
between February and June had it not been involved in the
unfair labor practice.
Flatlands' liability, as that of the other Respondents,
shall be limited based upon the formula set forth in-section
V, C, above, taking into consideration the economic down-
turn in the industry. Finally, Flatlands' argument concern-
ing vacation and holiday pay is rejected for the same rea-
sons as set forth above in section V, Q.
VI. FORMULA AND REMEDY
It is assumed that, but for the unfair labor practices,
each claimant would have earned in the bagel industry the
same in 1967 as he did in 1966 and in the same proportions
fully the various employers. Thus, each claimant's loss of
wages for 1967 would be his lost earnings from Council
members, e.g., if a claimant had total earnings of $16,000,
$8,000 of which was from Council members, then his loss
would be $8,000 less any amount he actually received from
Council members in 1967, and less any amount earned in
January 1966.
The amount of backpay due a claimant would be the
specific obligation only of the employers he worked for in
1966, and that on a pro rata basis. Since static earnings are
assumed, a claimant's January 1966 earnings from Council
members equal his January 1967 earnings from Council
members which in every case is the claimant's 1967 Coun-
cil earnings. After January, the Council members did not
employ the claimants.' Therefore:
1967 gross loss of wages = C - C'
where C = 1966 earnings from Council members
C' = 1967 earnings from Council members.
From the 1967 gross, 1967 interim earnings must be sub-
tracted. Since almost all claimants normally had earnings
from non-Council members, the interim earnings would be
those in excess of the norm. Thus, if a claimant's 1966 total
was $16,000 and his non-Council earnings $8,000, his 1967
interim earnings would be only those earnings in excess of
$8,000. Since the 1966 non-Council earnings are not con-
sidered in calculating gross backpay, they must also not be
considered in calculating interim earnings. An analogy
here would be the discharged employee who had a second
job. His earnings from the second job would not be consid-
ered in determining either his gross backpay or interim
earnings. The existence of the second job is just not rele-
B Flatlands and Culver ended their lockout in June 1967 and their liability
will be calculated accordingly
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vant to the issue of whether and- to what extent the dis-
charge from another job has caused him damage.
Further, the pattern in the industry was such that the
claimants worked for different companies - with varying
earnings in each year. Thus, the non-Council earnings will
be taken in total rather than on an individual company
basis in determining both the baseline non-Council earn-
ings (1966) and the interim earnings in 1967 and 1968.
Thus:
I = N' - N
Where:
I = 1967 interim earnings
N' = 1967 non-Council earnings
N = 1966 non-Council earnings
Net loss of wages 1967 = C - C' - I
No special adjustment need by made in order to exclude
January 1967. Since January was not in the backpay peri-
od, it can be assumed to have been a normal -pre-unfair
labor practice month. Thus, such non-Council earnings as
exceeded those in 1966 must have been earned after the
lockout began, e.g., after February 1. Similarly, the Council
earnings in 1967 were earned in January. These earnings
(C') are subtracted from the 1966 Council earnings (C) to
give the gross loss after February 1.
The 1968 loss is exclusive to the month of January. To
determine what a claimant would have earned in January
1968, but for the lockout, we need only to look to January
1967-a prelockout month. It is assumed that each claim-
ant would have earned in January 1968 from Council
members what he in fact earned in January 1967 (C'). In-
terim earnings for January 1968 again would be those non-
Council earnings in excess of normal. Assuming January
1968 to be an average month, January earnings in 1968
would be: N2/9 where N2 = 1968 earnings, January
through September.
Normal January earnings from non-Council members
would be:
N/ 12 where N = 1966 noncouncil earnings. I' _
N2/9 - N/12 where I' is the January 1968 interim
earnings , and January 1968 net loss = C' - I'.
Note that the January 1967 Council earnings C' are sub-
tracted from the 1966 Council earnings to arrive at gross
loss for 1967 (February through December). This same
amount is added in as the estimated gross loss for January
1968. Therefore, in computing the backpay due, the Janu-
ary 1967 Council earnings can be ignored (to subtract it
and then to add it gives a zero sum). For computation
purposes the gross loss of wages for the entire backpay
period, February 1, 1967, to February 1, 1968, is each
claimant's 1966 earnings from Council members (C).
Net loss of wages = C - C' - I + C' - I' or
= C -I - I' or
= C-(I+I')
Calculating holiday and vacation pay is somewhat com-
plicated by the fact that the formula changed in 1967. But,
assuming the formula would not have' changed except
through collective bargaining, which is in fact what hap-
pened, it can be concluded that the vacation and holiday
pay formula would have remained static throughout the
backpay period.
In 1966 each claimant received $1,240. In 1967 each
claimant received $224 from the fund, which amount must
be credited -as interim earnings.
The loss, however, attributable to the Council members
is, of course, not the full $1,240-$224, because in 1966 non-
Council members contributed their aliquot portion. Since
the -holiday and vacation contributions were on a produc-
tion basis, as were earnings, it is reasonable to charge the
Council members only for the loss proportionate to each
claimant's earnings from Council members. Thus:
1967 lost H & W = 1,240 X C/T -224 9
Where C = 1966 Council earnings
T = 1966 Total earnings
Finally, the January 1968 lost holiday and vacation ben-
efits would realistically be 1/12 of the 1966 benefits, again
charging the loss of Council members proportionally.
Thus: January 1968 loss H & W = 1/12 X C/T.
Note that the holiday and vacation formula is not con-
sistent with loss of wages formula. To be consistent, only a
proportion of the $224 (C/T X 224) should be subtracted;
and, since $1,240 represents a 12-month period, a separate
figure for January 1968 should not be included.
However, this is a legal determination more than a math-
ematical exercise, and on this point logical consistency
must yield. This issue was litigated on the premise that the
$224 was interim earnings , all,of which should be deduct-
ed. While the Respondents have the burden of proving in-
terim earnings, certainly they can accept what- is tanta-
mount to the General Counsel' s admission that all the $224
should be treated as such. It would not be appropriate, at
this stage of the proceeding, to credit less than the whole
$224 against such losses of vacation and holiday benefits as
are found. Since the $224 includes, at least, January 1967
payments by Council members, it follows that a propor-
tionate loss for January 1968 should be added in.
The computations are based on data from the backpay
specification except where corrected by stipulations of the
parties and/or testimony of the claimants. All calculations
are rounded to the nearest dollar, and as some earnings of
claimants are minimal (less than .5 percent of total Council
earnings) such are not included as being de minimis.
Upon the foregoing findings of fact, conclusions of law,
the entire record in this case, and pursuant to the formula
and remedy set forth above, I hereby issue the following
recommended:
ORDER 10
Respondents, Bagel Bakers Council of Greater New
York and Its Employer-Members their officers, agents,
successors, and assigns, shall pay to each person listed be-
9 In the case of kettlemen, the appropriate figures are 590 and 89.
10 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
10248 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
BAGEL BAKERS COUNCIL OF NEW YORK
low, the estates of those deceased, or where indicated to the
Regional Director for Region 29 to be held in escrow, the
amounts set opposite their respective names. Interest is to
be added at the rate of 6 percent per annum in accordance
with the formula set forth in Isis Plumbing & Heating Co.,
138 NLRB 716 (1962). There should be deducted from the
amounts due each individual any tax withholding required
by Federal and state law:
Bagel Box, Inc.
Joseph G. Fleischman (deceased) $ 38
Joseph Martinosky 2,336
Gerardo F. Russo 1,230
$3,604
Bagel Town, Inc.
Marvin Blind $ 162
Lawrence Horowitz 9,790
Seymour Ostrofsky 384
Saul Sapadin 59
Jack Sugarman 1,226
$11,621
Benson Bagel Bakery, Inc.
Ber Barth $ 294
William Brier 41
Julius Brooks 16
Murray Fertel 402
Rachmil Lederstein 14
Samuel Provder 1,508
Joseph Silverman 1,903
Jack Todaro 173
$4,351
Culver Bagel Bakery, Inc.
William Breier $ 274
Julius Brooks 830
Murray Fertel 552
Rachmil Lederstein 919
Arnold Newkofsky 124
Gerardo F. Russo 1,595
Leon Spanier (deceased) 9
Jack Todaro 2,664
$26,944
Far Rockaway' Bagel Bakery, Inc.
Samuel-Cutler $ 9,343
Edward Haimowitz 385
Sheldon Hepner 29
Leon Lifshutz 2,869
Seymour Ostrofsky 158
David Siegel 1,975
Jack Sugarman 245
$15,004
Flatlands Bagel Bakery, Inc.
William Breier $ 246
Murray Fertel 84
Joseph G. Fleischman (deceased) 26
Leon Litshutz' 32
Morris Minton 1,645
Abraham Zaffos 1.008
$3,041
633
Golden Bagel Corp.
Abraham Baron $ 645
Ber Barth 538
William Brier 335
Julius Brooks 156
Murray Fertel 84
Joseph G. Fleischman (deceased) 26
Rachmil Lederstein 99
Irving Levy 4,008
Arnold Newkofsky 7,647
Morris Schechter 4,633
Leon Spanier (deceased) 2,961
Jack Todaro 87
Jack Sugarman 22
$21,241
Island Park Nassau Bagel Bakery, Inc.
Marvin Blind $1,484
James Goodrich 37
Leon Lifshutz 32
Jack Ostrofsky 12,160
Jack Sugarman 191
$17,143
Laurelton Bagel Bakery
Ber Barth $ 244
Marvin Blind 180
Murray Boykin 949
William Brier 20
James Goodrich 37
Sheldon Hepner 29
Leon Lifshutz 597
Albert Rothstein 7,626
Saul Sapadin 386
Walter Schuettig 5,678
David Siegel 346
$16,092
Nelson Bagel Bakery, Inc.
Isak Jakubowicz
Gerardo F. Russo
$43
9
$52
Neptune Bagel Bakers Inc. and Neptune -Brighton Ba-
gels, Inc., jointly and severally
Ber Barth $1,504
William Brier 81
Murray Fertel 418
Joseph G. Fleischman (deceased) 1,977
Israel Goldenberg 1,902
Seymour Ostrofsky 89
Jack Todaro 8.7
Saul Sapadin 10
$6,068
Rubinstein Bagel Inc. and Joseph Rubinstein, Morris
Rubinstein, and Herman Reiter, d/b/a Rubinstein Ba-
gels
Ber Barth $56
Julius Brooks 24
Murray Fertel 50
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Joseph G. Fleischman (deceased) 68 APPENDIX 46
I k J k b isa owa u cz 1,619
Lionel Stone 4,188 1967 Sales of Respondents
Hyman Ustin 1,077
$7 082 Bagel Box (no records offered),
Bagel Town 110,691 (7/1/66'to 6/30/67)
Tri-Boro Bagel Co. Inc. 87,976 -(7/1/67 to 6/30/68)
Abraham Baron $ 161 avg. 98,884
Marvin Blind 1,593 Benson Bagel Bakery 67,998 (1967)
Murray Boykin 43 Culver Bagel Bakery 147,196 (1967)
Ralph Brier 4,591 Far Rockaway Bagel 143,094 (4/1/66 to 3/31/67)
Julius Brooks 15 Bakery 51,695 (4/1/67 to 3/31/68)
Murray Fertel 59 avg. 97,395
Joseph G. Fleischman (deceased) 189 Flatlands Bagel Bakery (no records offered)
James Goodrich 136 Golden Bagel Corp. 98,682 (9/1/66 to 8/31/67)
Edward Haimowitz 2,847 Island Park Nassau 202,850 (6/1/66 to 5/31/67)
Sheldon ' Hepner 3,132 Bagel Bakery
Seymour Ostrofsky 59 Laurelton Bagel Bakery (no records offered)
Saul Sapadin 386 Neptune-Brighton Bagels 49,953 (4 mos. in 1967 to
David Siegel 74 9/31/67)
Stanley Siegel 34 Nelson Bagel Bakery (no records offered)
Emanuel Strugatch 1,790 Rubinstein Bagels 181,401 (2/1/67 to 1/31/68)
Jack Sugarman 763 Tri-Boro Bagel Co. 228,642 (2/1/67 to 1/31/68)
Jack Todaro 1,342 D & H Bagel Bakery 37,561 (11/1/66 to
Israel Weiner 1,240 10/31/67)
Pop's Bagel Bakery, Inc.
$18,454 Pop's Bagel Bakery 104,537 r(i/1/67,to 12/31/67)
Ber Barth $ 92
Marvin Blind 131
Murray Boykin 313
Ralph Breier 43
James Goodrich 5,946
Edward Haimowitz 616 APPENDIX 47
Sheldon Hepner 42
Leon Lifshutz 47 Limit to Backpay Liability of Each Respondent
Seymour Ostrofsky 69 1967 Sales x $1/$.07 x 56 = Bagel payroll = Limit
Gerardo F. Russo 22 of Liability
Saul Sapadin 116
David Siegel 49 Limit of Total
Stanley Siegel 5,559 1967 Backpay Backpay
Jack Sugarman 273 Sales Liability Owed
$13,318 Bagel Box
*
$ 3,604
el BakerPop's Ba Inc as successor to D & H Ba-
Bagel Town $98,884 $22,225 > 11,621
y,g .
el Baker Inc (See A endix 48)
Benson Bagel Bakery 67,998 17,346 > 4,351
g y, . pp
Culver Bagel Bakery 147,196 37,550 > 6,944
Murray Boykin $4,092 Far Rockaway
Murray Fertel 18 Bagel Bakery 97,395* 24,846 > 15,004
Joseph G. Fleischman (deceased) 18 'Flatlands Bagel Bakery 3,041
Eugene Moore
Seymour Ostrofsky
1,324
127
Golden Bagel Corp. 98,682
Island Park Nassau
25,174 > 21,241
Samuel Provder 1,378 Bagel Bakery 202,850 51,747 > 17,143
Gerardo F. Russo I I Laurelton Bagel Bakery 16,092
Emanuel Strugatch 668 Nelson Bagel Bakery 52
Markus Weisz (escrow) 1,921 Neptune-Brighton Bagels 49,953 12,743 > 6,068
Jack Sugarman 27 -Rubinstein Bagels 181,401 46,276 > 7,082
Israel Weiner 11 Tri-Boro Bagel Co. 288,642- 73,633 > 18,454
$9,595 D & H Bagel Bakery 37,561- 9,595 < 17,135
Pop's Bagel Bakery 104,537 26,668 > 13,318
[Appendixes 1 through 45 (computations of individual
backpay) omitted from publication.] ' Average
BAGEL BAKERS COUNCIL OF NEW YORK
APPENDIX 48
Adjustment of backpay due from Pop's Bagel Bakery,
Inc., as successor to D & H Bagel Bakery, Inc., on the
D & H Bagel Bakery, Inc., limit of liability.
The liability is 56 percent of the backpay found due, thus
each claimants' backpay will be adjusted accordingly:
Murray Boykin $7,308 to $4,092
Murray Fertel 33 to 18
Joseph G. Fleischman
(deceased) 32 to 18
Eugene Moore 2,365 to 1,324
Seymour Ostrotsky 227 to 127
Samuel Provder 2,460 to 1,378
Gerardo F. Russo 19 to 11
Emanuel Strugatch 1,193 to 668
Markus Weisz 3,430 to 1,921
Jack Sugarman 49 to 27
Israel Weiner 19 to 1-1
$9,595
635