Bagel Bakers Council

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 International Union of America Bagel Bakers Council of Greater New York and its Employer-Members and Bakery Drivers Union Local 802, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Cases 29-CA-887-1 and 29-CA-923-2 February 19, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On March 28, 1968, Trial Examiner Joseph I. Nachman issued his Decision in the above-entitled proceedings, finding that Respondents had engaged in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that Respondents had not engaged in certain other alleged unfair labor practices and recommended dismissal of these allegations. Thereafter, Respondents and the General Counsel filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and- the briefs, and the entire record in this case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner, as modified herein. In finding the lockout of Local 338 members to be violative of Section 8(a)(3) we do not adopt the Trial Examiner's statement that a lockout is unlawful unless an impasse in bargaining has been reached. As Respondent's lockout was clearly in 'As argued by the General Counsel on the basis of the record, we delete the designation "AFL-CIO" with respect to Local 338 wherever it appears in the Trial Examiner's Decision, and substitute "Local 338" for "Local 802" in footnote 44 of the Trial Examiner's Decision and "Case 29-CA-923-2" for "Case 29-CA-923-3" in the caption. We shall dismiss the complaint against Fred Lemberg and Jerry Lemberg d/b/a Culver Bagel as the General Counsel has presented no evidence that it has taken over any of the employees of the predecessor Culver Bagel Bakery and hence there is no basis for concludmg that it is a successor to Culver Bagel Bakery. Accordingly, we delete the name of Fred Lemberg and Jerry Lemberg d/b/a Culver Bagels wherever it appears in the Trial Examiner's Recommended Order. violation of Section 8(d) and was in support of Respondent's bad-faith bargaining, we find the lockout to be unlawful whether or not an impasse has occurred.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that Respondents, Bagel Bakers Council of Greater New York and its Employer-Members, Bagel Box, Inc., Bagel Town, Inc., Benson Bagel Bakery, Culver Bagel Bakery, Far Rockaway Bagel Bakery, Inc., Flatlands Bagel Bakery, Inc., Golden Bagel Corp., Island Park-Nassau Bagel Bakery, Laurelton Bagel Bakery, Nelson Bagel Bakery, Inc., Neptune Bagel Bakers, Inc., Rubenstein Bagels, Inc., Joseph Rubenstein, Morris Rubenstein and Herman Reiter, copartners doing business as Rubenstein Bagels, Tri-Boro Bagel Co., Inc., Pops Bagel Bakery, Inc., and D & H Bagel Bakery, their respective officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. 'Darling and Company , 171 NLR^ No. 95 Member Brown adheres to his dissent in Darling and would find that the lockout , in the absence of legitimate impasse, is per se a violation of Section 8(a)(3) TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOSEPH I. NACHMAN, Trial Examiner: These separate complaints,' consolidated for trial by the Regional Director's Order of July 18, were tried before me at Brooklyn, New York, between September 18 and September 28. The complaint in Case 29-CA-887-1 alleges in substance , that Bagel Bakers Council of Greater New York (herein called the Council) and its employer members (together with Council called Respondents), violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended (herein called the Act), by engaging in, on and after December 19, 1966, surface bargaining with Bagle Bakers Union Local 338 of Bakery and Confectionery Workers International Union of America, AFL-CIO (herein called Bakers or Local 338), in the negotiations for a contract to replace one between said parties expiring January 31, and by locking out their employee members of Local 338 on February 1, and thereafter failing and refusing to reinstate them, and that said lockout action was taken without complying with the provision of Section 8(d)(3) and (4) of the Act, and to effectuate and support Respondents' bad faith bargaining. In Case 29-CA-923-2, the complaint alleges in substance that the Council and its members violated Section 8(a)(1), (3), and (5) of the Act by refusing to bargain with Bakery Drivers Union Local 802, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (herein called Drivers, or Local 802), for a contract to replace one between the parties, expiring January 31, and by locking out their employees 'In Case 29-CA-887-1, the complaint issued June 30, on a charge filed February 8, and amended April 19 In Case 29-CA-923-2 complaint issued June 30, on a charge filed March 24 These and all dates hereafter mentioned are 1967, unless otherwise indicated. 174 NLRB No. 101 BAGEL BAKERS COUNCIL members of Local 802, thereafter failing and refusing to reinstate them. The principal issues litigated are (1) whether the employer-members of the Council, Local 338, and Local 802, have manifested an intention to bargain collectively in a multiemployer unit; (2) whether certain Respondents are liable as successors to employers whose business they allegedly took over; (3) under the facts of this case was it necessary for Respondents to comply with Section 8(d)(2), (3), and (4) of the Act, and if so, was there in fact lack of such compliance, (4) was Respondent's bargaining with Local 338 bad faith or surface bargaining; (5) did Respondents refuse to bargain with Local 802, within the meaning of the Act; and (6) did Respondents lock out the members of Local 802, or did the latter refuse to work, as Respondents contend, either on instructions from their union, or because of the picketing by Local 338 after the lock out of the latter.2 At the trial, the respective parties were represented by counsel, were afforded full opportunity to adduce evidence, to examine and cross-examine witnesses, and to argue orally on the record. The General Counsel made oral argument , which is incorporated in the transcript, and also submitted a brief. Respondents waived oral argument, but submitted a brief. Counsel for the respective unions neither argued orally nor submitted a brief. The oral argument and briefs have been duly considered. Upon the entire record in the case, including my observation of the demeanor of the witnesses, I make the following: L FINDINGS OF FACT A. Business of the Respondents The complaint in each of these cases names as Respondent 14 employers' who are engaged in the New York metropolitan area in producing bagels which they distribute both at wholesale, and through their own stores to the retail trade. The General Counsel concedes that none of the Respondents, considered alone, does a sufficient volume of business to satisfy any Board standard for the assertion of jurisdiction. By amendment to their answer, made at the trial, it was admitted that collectively Respondents derive annual revenue in excess of $500,000 from their operations, annually receive directly or indirectly from outside the State of New York flour and other materials valued at more than $50,000; and annually sell to supermarkets who themselves satisfy 'Following issuance of the complaints here, the Regional Director filed a petition for injunction pursuant to Section 10(j) of the Act, in the United States District Court for the Eastern District of New York. Pursuant to stipulation of counsel, the Court deferred action on the petition ' until after the trial before me with the record so made to be delivered to the Court, and on the basis thereof (supplemented by either party should the need arise), the Court would make its decision . After taking some evidence to supplement the record made before me, the Court on January 16, 1968, filed its opinion granting an injunction on that aspect of the case based on the charges filed by Local 338, but denying injunctive relief on`that aspect of the case which involved Local 802. The Court's decision is not yet reported However, the Court reserved for subsequent decision the question whether Culver Bagels, allegedly a successor in interest to Culver Bagel Bakery, and whether the partnership known as Rubenstein Bagels is an alter ego of Rubenstein Bagels, Inc., and whether said Respondents should be bound by its injunction decree 623 the Board's retail jurisdictional standard, finished products valued in excess of $50,000. Whether the Board would assert jurisdiction in the instant proceeding turns, therefore, on the issue hereafter discussed, whether Respondent employers constituted multiemployer bargaining units for the purpose of bargaining with Locals 338 and 802. The General Counsel urges an affirmative answer to the question, while Respondents contend the issue must be answered in the negative. Accordingly, my findings with respect to commerce are deferred until the issue of multiemployer bargaining units is hereafter considered and resolved.' B. Background and History of Bargaining For some years Local 338 has had contractual relations with employers in the bagel baking industry in the New York area. Bargaining for such contracts has been between said Local on the one hand, and Respondent Council on the other, the latter through a committee of its members headed by Isadore Glass, president of said council.' The agreement when reached became the basic industry-wide contract. In the past, the practice was for the contract to be approved by the Council, and then was signed by the employer members. Nonmembers of Respondent Council would thereafter sign the same agreement. The manner in which such contracts were negotiated and executed in 1965 and 1966, illustrates such practice. In December 1964, at the request' of Local 338, negotiations began for a contract to supersede the one expiring January 31, 1965. On behalf of the employers the negotiations were through a committee composed of some Employer Respondents, headed by Council President Glass. After about six meetings, agreement was reached on February 3, 1967, for a contract to be effective from February 1, 1965, to January 31, 1966. A memorandum of agreement was at the time reduced to writing and was signed by Local 338, and by Glass "For Employers." Subsequently, a formal contract was prepared and signed by each employer.' The contracts so signed by the individual employers make no reference to the Council, nor to the status of the signing employers as members thereof. 'The employers named are the same in each complaint except that D & H Bagel Bakery is named in the complaint dealing with the Local 338 case but not in the complaint dealing with the Local 802 case. Nelson Bagel Bakery, Inc., is named in the complaint dealing with the Local 802 case, but not in the complaint dealing with the Local 338 case. 'No issue of labor organization is presented . At the trial Respondents conceded that both Local 338 and Local 802 are organizations which admit employees to membership, and exist in whole or in part for the purpose of dealing with employers concerning wages, hours and conditions of employment of their respective employee members Accordingly, I find them to be labor organizations within the meaning of Section 2(5) of the Act. Likewise, Respondents concede that the units pleaded in paragraph 6 of each complaint constitute units appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. I so find. 'Glass is a full-time employee of the Council. His salary and other expenses of the Council, including a monthly, retainer to'counsel, are paid from membership dues of $60.00 a month. 'Those employers signing follows the list of employers in Appendix A to the complaint involving Local 338, except that apparently such , contract was not signed by Pop's Bagel Bakery, Inc, but one was signed by Nelson Bagel Bakery Co , Inc., which is not listed in the aforesaid Appendix A Respondent admits that Nelson Bagel Baking Co., was a member of the Council at all relevant times. 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Between early December 1965 and February 3, 1966, the same parties met to negotiate a new contract to supersede the one due to expire on January 31, 1966. On February 3, 1966, after about six meetings, agreement was reached, retroactive to February 1, to extend the prior contract to January 31, 1967, with modifications not here material. The terms so agreed upon were written out in longhand and signed by a representative of Local 338, and by Council President Glass "on behalf of member employer's."" This handwritten agreement contained the following provisions: 2. At the request of any employer signatory to the basic contract [the Union] agrees to deal with [the Council] as representative of the Employer for purposes of contract negotiations and processing of grievances. 3. The terms, of this stipulation shall be incorporated in formal language into the basic contract, which will be executed by each individual employer who shall be bound thereby. The agreement shall be "Acknowledged" by the Council for those employers who designate the Council as representative. Thereafter the handwritten agreement was typed and a separate copy thereof was signed by 12 of the 14 employers listed in Appendix A to the complaint, involving Local 338.' In due course a formal contract was drafted and signed by the same employers who signed the contract the preceding year." In September 1966, a dispute arose between Local 338 and Respondents as to pension and welfare contributions under the then current contract. Apparently anticipating a work stoppage, Council President Glass sent Local 338 the following telegram: You are hereby advised that in the event there is a slowdown, stoppage, or strike in any shop that is a member of the . . . Council, then you are violating the collective bargaining agreement entered into with the .. . Council and the Council will take such steps as it deems necessary for the protection of the members of the .. ,. Council. On September 30, 1966, Local 338 struck three shops (Culver, Rubenstein , and Benson), all members of the Council. A few days later -a committee of the Council, including Glass, its president, met with Local 338 to 'The only employers listed in that Appendix who had not signed such a copy are Pop's Bagel Bakery, Inc, and Bagel Box, Inc. However, Nelson Bagel Bakery Co, Inc., though not named in said Appendix did sign a copy of the aforementioned document. "See fn. 6, supra. The formal contract contained the following provisions- Thirty-Fifth: (a) If instructed by the Employer, the Union agrees to deal with [the Council] as representative of the employer for the purpose of contract negotiations and processing of grievances. By initialing this section in the space provided below the Employer shall be deemed to have instructed the Union to deal with the Council on the Employers behalf This agreement, however, is entered into individually by the Employer, and 'the Employer is individually bound thereby . The absence of initials shall be deemed instructions not to deal with the Council on the Employer's behalf and this section shall have no application to the Employer. Forty-Fifth... this agreement shall remain in effect fora period of one (1) year from February I, 1966, to and including January 31, 1967, and thereafter until a new agreement (the terms of which shall be retroactive to the above given expiration date) has been signed ; provided that either party may cancel or _ termmate this agreement at any time after the giving of sixty (60) days notice to the other party, but such notice shall not be effective prior to midnight of January 31, 1967.... It may be noted that none of the contracts so executed by the individual employers were initialed as provided in the above-quoted paragraph Forty-Fifth. discuss the matter, and in the course of such discussion Glass stated that if the Union did not cease striking the three above-mentioned employers, the "Council will close the remaining shops." Immediately following this meeting, Glass as president of the Council sent Local 338 the following telegram: You are hereby advised that your work stoppage and slowdown in our member's shops constitute a breach of the collective bargaining agreement between Local 338 and the ... Council and its member shops. In the event full work and production without any slowdowns is not resumed in all of the member shops of the ... Council on or before Thursday, October 6th, 1966, at 7:00 A.M. we will deem your breach a termination of our agreement. After that date your members will no longer be deemed employees of our member shops and will not be permitted on to the premises of our member shops. Local 338 replied by telegram to Glass dated October 5. After contending that the employers and not the Union had breached the then current contract, and engaged in other illegal activity, the telegram concluded. "Moreover, our contract is with individual employers and not with the Council." The following day (October 6), Local 338 received a telegram signed by 21 bagel shops,' which stated: The Undersigned employers and members of the . . . Council concur and join in the notice given in telegram of Oct. 4, 1966. Contrary to your telegram of October 5, 1966, sent to Isadore Glass ... the Union committed a breach of the collective-bargaining agreement in illegally striking the three member shops of the . . . Council and causing a work slow down. On October 7, 1966, the nonstruck Council members locked out their employee members of Local 338. Thereafter the parties met several times, and in November 1966, agreement was reached which ended both the strike and the lock out.10 C. Current Facts 1. The Local 338 case The Refusal-To-Bargain Allegations a. The 8(d) Aspects By letter dated November 29, 1966, Glass wrote Local 338 that in accordance with paragraph 44 of the then current contract, the _"Council elects to terminate [said contract] effective January 31, 1967."" Bargaining for a new contract began December 19, 1966. Between that date and the hearing herein, more than 20 bargaining sessions 'Among such signors were all the employers listed in Appendix A to the complaint involving Local 338, except Pop's Bagel Bakery, Inc., but mcludmg Nelson Bagel Bakery. "The findings in this section are based on the uncontradicted and credited testimony of Harold Laskowitz, business agent of Local 338, and Exh. G C. 5 through 10 and R2. "Respondents, claiming that the Union refused to accept this letter, which had been sent by certified mail, mailed another copy thereof to the Union on December 20, 1966. Union Business Agent Laskowitz admitted that a communication came to his office from the Council , that he refused it, and assumed that it was the termination notice of November 29. As such notice was timely sent to Local 338 , even though it refused the latter, it must be ' regarded as an effective termination notice under section Forty-Fifth of the contract BAGEL BAKERS COUNCIL 625 were held.' 2 The General Council contends that on February 1, Respondents terminated the contract, locked out and refused to employ members of Local 338, which lockout and refusal to employ continued at all times thereafter," and that such termination, lockout and refusal to employ occurred at a time when neither the Federal nor New York State Mediation Service had been notified of the dispute between the parties, as required by Section 8(d) of the Act. Respondents having failed, in their answer, to deny the allegations of the complaint with respect to the contract termination, lockout and refusal to employ such allegation are deemed admitted, and are now found to be true.' 4 The parties stipulated that Respondent employers continued to operate after the February 1 lockout, the baking operation being performed by the owners, members of their family and employees who were not members of Local 338. With respect to the notice to mediation services, the parties stipulated that the New York State Mediation Service received informal notice of this dispute early in December 1966. Just how the notice was communicated to the State Service, the record does not disclose. With respect to the Federal Service, the parties stipulated that no notice of any kind was given until March 9, which was more than 3 months after the termination notice to Local 338, and approximately 5 weeks after the February 1 -lockout. b. The alleged surface bargaining In addition to the contention that Respondents violated Section 8(a)(5) of the Act by locking out their employee members of Local 338 without giving the notices required by Section 8(d) of the Act, the General Counsel argues that Respondent also violated Section 8(a)(5) of the Act, because their bargaining with Local 338 was not in good faith. Such absence of good faith bargaining is demonstrated, the General Counsel contends, because Respondents allegedly (1) failed to make concrete bargaining proposals at any bargaining session prior to the expiration of the contract on January 31; (2) at bargaining sessions subsequent to February 7, when Respondents allegedly first presented concrete proposals, as Local 338 made concessions Respondents revised their demands upward tacking on new and previously unmentioned demands; (3) failed to make any concessions in their bargaining demands; (4) insisted that any contract entered into be on cost terms more favorable to Respondents then Local 338 granted to any other employer; (5) insisted that any agreement reached be effective only from day-to-day, week-to-week, or at most month-to-month; (6) claimed financial inability to meet the monetary demands of Local 338, but failed and refused to comply with the latter's request for books and "Bargaining sessions were held on December 19 and 28, 1966, January 4, 11, 18, 25, 30, and 31, February 7 and 8, March 15, 21, 22, and 28, April 27, May 9 and 24, July 31, August 7, 10, 30, September 11 and 13 After the trial herein began on September 18, the parties continued to negotiate, a bargaining session was held the evening of September 19, which lasted until Wednesday morning, and a meeting was scheduled for the afternoon following the close of the hearing on September 28. "The complaint alleges that the lockout and refusal to employ ceased on or about June 15, 1967, with respect to Respondent Flatlands Bagel Bakery, Inc "Board's Rules and Regulations , Section 102.20. That such failure to deny was not inadvertant is demonstrated by the fact that counsel for Respondent, throughout the hearing and in its brief, admitted that Local 338 members were locked out, but contended that such lockout was not violative of the Act records to support such claim. For reasons hereafter stated, I find it necessary to consider only the last two of the above-mentioned contentions. The facts concerning those contentions follow. At the first meeting on December 19, 1966, which was scarcely more than an organizational meeting, the Union announced that it had no demands to make and wanted a renewal of the then existing contract for a 2-year term. In reply the employers stated there would have to be a roll-back in labor costs, but no specific demands were made. At the next meeting on December 28, 1966, the employers stated that they were losing money and had to have a reduction in labor costs. Local 338 expressing its willingness to grant a reduction on a selective basis as the need therefor was shown, inquired whether the losses were being incurred in the wholesale or retail operations of the employers, and suggested that perhaps separate contracts for the two types of operations might be needed. When the employers vetoed the suggestion of separate retail and wholesale contracts, and the Union suggested a change in computing contributions to welfare, holiday and vacation funds, which it said would save money, the employers expressed interest, and the remainder of the meeting was devoted to a discussion of that suggestion. Shortly after the start of the next meeting on January 4, the employers again stated that they were losing money, and that a 40 percent reduction in labor costs was necessary to justify their "agree[ing] to any kind of a new contract." To this a negotiator for Local 338 replied, "If you are losing money, show us where you are losing money. Let us examine your books or have an audit of some kind. People have accountants. Bring in a report. Show us where you are losing money." The Union negotiators further stated that in the recent past it had granted relief to employer Rubenstein, a member of the Council, because he had demonstrated the necessity therefor, and Rubenstein, who was in an adjoining room, was called in for a discussion of his situation. At the next meeting on January 11, the parties again discussed managements' proposal of a 40 percent reduction in labor costs, and the Union again asked for the books saying it wished to determine in what aspects of the business such losses were being incurred. On January 13, officials of the Union15 met privately with Council President Glass in an effort to achieve progress in reaching an agreement; no other employer representative being present. During the discussion, the employers' proposal to reduce labor costs came up, and the Union representatives stated their willingness to grant relief on an individual basis, when any employer demonstrated the need therefor, Union Representative Amster adding "You know, Izzy, not all your employers are in that bad shape. They are not all losing money." To this Glass replied, "Not all of them are losing money but certain of my members want to take advantage of this situation ...they want this 40 percent reduction."" Again, at the January 18 meeting, when the employers' 40 percent reduction in labor costs was under discussion, the Union stated its willingness to grant relief along the lines previously granted employer Rubensteii to the extent need therefor was shown, and stated, "Bring your books to us. "Laskowitz, Amster, and Brier. "At this time Glass asked Local 338 representatives whether the latter would direct its members to cross a Local 802 picket line in the event the employers reached agreement with Local 338, but not with Local 802. Local 338 representatives declined to take any position, saying they would cross that bridge when they came to it. 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bring an audit, accountant's report. Show us where you are losing money so we can guide ourselves and know in which direction we're going." There is no evidence that at the January 25, 30 and 31 meetings the matter of producing books was specifically discussed. Union ,negotiator Brier, who attended virtually all of the !negotiating meetings both before and after the lockout on February 1, testified that at virtually every meeting where the 40 percent reduction was under discussion, the Union asked for the books, financial statements, or other records to support the claim that such reduction was necessary, so that the Union might determine whether and to what extent relief was indicated. The evidence is uncontradicted- that at no time did Respondents produce any of the records requested by the Union." 2. The Local 802 case Background and bargaining pattern The record shows that since 1946, John Strauss, president of Local 802, has been dealing with the Council, through Glass, in the negotiation of collective-bargaining agreements with respect to drivers and helpers employed by members of the Council. Prior to February 1, 1966, Strauss, together with Glass and a committee of his Council, would negotiate a basic industry-wide agreement and thereafter the employer members of the Council would execute individual but identical contracts embodying the terms so agreed upon. However, the contract expiring January 31, 1967, is in the form of a master agreement, which Glass executed on behalf of the Council which is designated as "Employer," and identical copies thereof were also signed by each employer member of the Council. Over the years the practice had grown up to have the contracts which Local 338 and Local 802 had with employer members of the Council, expire on the same date; that Local 338 would bargain out its contract first, and after that agreement was reached, Local 802 negotiated its contract. On November 29, 1966, Local 802 sent to each of the Respondent employers,'' and to the "The findings in this section are based on the credited, and in relevant respects for the most part uncontradicted testimony of Brier. The only witnesses called by Respondents who testified concerning the bargaining sessions were employers Kalkstein and Cohen , both of whom impressed me as evasive and unreliable witnesses . On a number of occasions each had to be asked important questions twice and in some instances three times, before an answer to the question was obtained . To the extent that the testimony of Kalkstein and Cohen, on the one hand, and Brier on the other, is in conflict, I credit the latter . Glass did not testify hence the statements attributed to him stand undenied. In this connection it may be stated that on the final day of the hearing (September 28), Respondents moved for an indefinite adjournment of the hearing claiming that Glass was to enter the hospital the following week for surgery, and was emotionally unable to testify . A doctor's certificate received in evidence states that Glass ". is in no condition to testify or to be subjected to any unusual stress or strain." I observed, however, that Glass was in the hearing room, seated at counsel's table for the greater portion of the hearing, and frequently conferred with counsel, but was not present on the final day of the hearing . The record also shows that on Tuesday preceding the closing of the hearing, a negotiation meeting was held which lasted until the early hours of Wednesday ; that Glass attended that meeting and fully participated in the negotiations; that a further meeting of the parties was scheduled for noon, September 28, which Glass had committed himself to attend . In view of the foregoing , and that the injunction petition under Section 10(j ) of the Act, pending in the Eastern District of New York, which the Court stated it would decide on the record made before the Trial Examiner, the request for continuance was denied . I did offer, to hold the record open until the following day to give Respondents an opportunity to produce Glass as a witness, or to take the latter's testimony at his home. The offer was not accepted, and the record was closed. Federal and State Mediation Services, a letter stating that it wished changes in the contract expiring January 31, and would communicate specific demands at a later date. No such demands were ever communicated. Pursuant to arrangements made by Strauss, which he testified was for the purpose of commencing contract negotiations, he met with Glass and a committee of the Council, about mid-January. There is no evidence that any bargaining took place at this meeting which seems to have been only in the nature of preliminary discussions. However, at this time Strauss did state that Local 802 had negotiated contracts with employers in other industries calling for $12 weekly wage increase over a 3-year period. Glass stated that the employers would want a 40-percent cut, and were taking that position with Local 338, referring to what the employers regarded as problems in the industry, that made this necessary. Strauss suggested that perhaps Local 802 and 338 should negotiate jointly with the Council. The meeting ended with Glass stating the suggestion for joint meetings would be considered and that Strauss would be advised of their decision. There is no showing that Glass or any member of the Council thereafter communicated with Strauss regarding possible joint bargaining. At the invitation of an official of Local 338, who testified that he was acting pursuant to Glass' suggestion, Strauss accompanied by Azzaro, secretary-treasurer of Local 802, attended the Local 338-Council bargaining session of January 30. Just how long Strauss and Azzaro remained at this meeting is not clear." The evidence is clear however, that all discussion while he was in attendance at this meeting related only to Local 338, and that contract terms affecting Local 802 were not discussed. A room was then rented in the motel where the meeting was taking place, where Azzaro remained, and the Council was notified of that fact in case the employers wished to communicate with Local 802. At no time during that meeting did the Council or any member thereof attempt to contact officials of Local 802. The following evening (January 31) Azzaro returned to the motel where Local 338 and the Council were meeting, and waited in the lobby while the meeting was in progress. About midnight, Azzaro learned from official of Local 338 who had come into the lobby that the meeting was over and that no agreement had been reached. Azzaro, conscious of the fact that both the Local 338 and the Local 802 contracts were expiring that night, went into the meeting room and inquired of Glass, "What's going on? What's going to happen?" Glass told Azzaro that the Council and Local 338 "were miles apart," and "We can't use your drivers, notify your people we do not need them." Azzaro told Glass to put this in writing. Except for the foregoing events there is no evidence that Local 802 communicated with the Council or any member thereof, prior to February 1, and while the Council was negotiating with Local 338. The next day (February 1,) Local 802 received the following telegram addressed to Strauss: Our contract with your Local 802 and Bagel Bakers Local 338 having expired and no new agreements "The record does not affirmatively show that such a letter was sent to the Council. However, as the record shows that in December 1966, Glass and Strauss met and discussed economic conditions in the industry, with Glass stating that the Council would seek a substantial reduction in labor costs, I find that Glass either received such a letter, or in some manner received notice of its contents. "Strauss first testified that he remained at this meeting about 1 /2 or 3/4 hours. However, in his affidavit to the Board he stated that he remained about 10 minutes BAGEL BAKERS COUNCIL having been reached services of members of Local 802 will no longer be required by the members of Bagel Bakers Council pursuant to notice given Harold Azzaro last night. Bagel Bakers Council Isadore Glass President.20 Although Respondents deny that they locked out the Local 802 members claiming that the aforesaid telegram was unauthorized, and contend that the failure of those employees to work was due to the fact that they elected not to report for duty, I find no support in the record for these contentions. On the contrary, the evidence shows some drivers reporting for work on February 1, found the bakery closed; others who had keys found the locks changed; others were met by an owner of the bakery and told there was no work. With one exception, no Respondent member of the Council has employed a member of Local 802 since February 1.21 The parties stipulated that most Respondent employers continued their operations after February 1, servicing their customers by the owners, members of their family, or employees who are not members of Local 802 making the deliveries, or by having the customer pick up his own purchase S.21 The argument that the above-quoted telegram of February 1, did not constitute a lockout of the Local 802 members is predicated on the contention that the same was in fact sent by the Council's attorney, Philip Levine, on his own and without authority from Glass or any member of the Council. Levine testified that he sent the telegram over Glass' signature without the knowledge or consent of Glass or any member of the Council, in spite of standing instructions from Glass not to send communications in the latter's name, and that he did so in his capacity as attorney for Council," simply as a gesture of friendship to advise the drivers that it would be useless for them to report for work because there would be no products to deliver as members of Local 338 would not be at work. I am unable to give credence to this testimony, and upon the entire record find and conclude that members of Local 802 did not work for the employer members of the Council after February 1, because they were locked out by their respective employers. I so find and conclude for the following reasons: 1. The telegram sent Local 802 is couched in terms of lockout, and is predicated on the fact that both the Local 338 and Local 802 contracts had expired with no new agreement reached. 2. The uncontradicted testimony of Azzaro that he was told by Glass at'the conclusion of the meeting between the Council and Local 338 on January 31, that no agreement had been reached with the latter, and that Respondent had no need for drivers. This coincides with Respondents' admitted lockout of 338 members and Glass' policy "The telegram was sent from Brooklyn, on February 1, at 3.39 p.m., and was received in the telegraph office in Long Island City, the same day at 4:02 p.m Respondents' contention that this telegram did not constitute a lockout because it was unauthorized, and that neither the Council nor its employer members is, responsible therefor , will be discussed hereafter The one exception is that pleaded in the complaint in Case 29-CA-923-2, that Respondent Flatlands Bagel Bakery, Inc , ceased its lockout and reinstated its employee members of Local 802, on or about June 15 "The findings in this section are based on the aforementioned stipulation, Exh. G.C. 20 in evidence, and a composite of the uncontradicted and credited testimony of Strauss and Azzaro Neither Kalkstein nor Cohen, the only witnesses called by Respondents who gave testimony regarding this aspect of the case , testified as to these facts. "The Council's letterhead carries Levine's name as its counsel. 627 announced during negotiations with Local 338, of "no contract - no work." 3. The failure of Local 338 members to work was not due to any strike or slowdown on their part; the evidence is uncontradicted that they sought to work but were prevented from doing so by Respondents' admitted lockout. 4. Although most Respondents continued their wholesale business, albeit on a reduced scale, with many making deliveries by the owners, their family or non-802 members employed for the purpose, none of the drivers formerly employed by Respondents were asked by their employer to perform such work, notwithstanding their earlier attempt to do so. 5. Assuming that Levine's telegram was in fact unauthorized, Respondents made no effort to notify Local 802 of that fact. The record shows that between January 31 and April 12, seven bargaining sessions at which Glass was present were held with Local 338, that Strauss and/or Azzaro were present at at least three of these and although Glass must have known that Levine sent the telegram in question," there is no evidence that he even attempted to inform Local 802 that the telegram was unauthorized, or that Respondent did not intend to lock out the Local 802 members 6. Finally, whether the telegram was authorized or not, and whether it was intended as a lockout or not, the action of the employer members of the Council in preventing their employee members of Local 802 from working, as hereinabove found, constituted a lockout of those employees. D. Status and Liability of Specific Respondents 1. D & H Bagel Bakery and Pops Bagel Bakery For some period prior to the events here involved, Dave Bork owned and operated a bagel bakery at a Richmond Hills location , known as D & H Bagel Bakery, and Sol Wolin conducted an identical operation in Hewlett, known as Pops Bagel Bakery, Inc. Bork and Wolin are brothers-in-law. Early in December 1966, Bork and Wolin merged , and thereafter conducted all operations from the one location in Hewlett . Preparatory to the merger, both Bork and Wolin met with officials of Local 338 and an arrangement was worked out looking toward the minimum loss of employment for members of Local 338 by reason of the merger. Prior to the merger, D & H was a member of the Council, Bork being listed on the Council's letterhead as a vice president thereof; signed the memorandum of agreement reached by the Council and Local 338 on February 3, 1966, and on September 19, 1966, executed the formal 1966-67 contract. The status of Pop's Bagel Bakery as a member of the Council during the 1967 negotiations is evidenced also by the fact that at the meeting of January 11, Glass, at the request of Local 338, read a list of the members of the Council, which included both Pops and D & H. Bork, though present at the time, raised no issue as to Glass' statement . Moreover, the evidence shows that at the January 31, meeting, Bork, in answer to Azzaro' s question as to the reason for his presence, confirmed that the combined operation was bargaining through the Council.25 "Other considerations aside, it is at least a reasonable inference that the cost of the message was billed to the Council either by Western Union or by Levine. "Based on the uncontradicted and credited testimony of Brier. 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The Rubenstein situation Appendix A to each complaint herein, as issued on June 30, names as a Respondent, and as an employer member of the Council, "Rubenstein Bagels, Inc." By order dated September 13, this being 5 days prior to the opening of the hearing, the Regional Director ammended both complaints by including in each appendix: Joseph Rubenstein, Morris Rubenstein and Herman Reiter, d/b/a Rubenstein Bagels 711 Lydig Avenue Bronx, New York 10462Z6 The Regional Director also amended the substantive allegations of each complaint to allege that the corporation and the partnership are affiliated businesses with common ownership, pursuing a common labor policy, and constitute a single intergrated enterprise. A copy of this order was served on Rubenstein Bagels by registered mail on September 13, and was received by the latter the next day. No objection to the amendment was raised at the hearing, nor was any denial made of the facts alleged therein as regards Rubenstein Bagels, Respondents merely contended that the corporation and the partnership are separate entities and that neither may be held liable for the acts of the other. The evidence shows that the corporation and the partnership conduct business at the same location. There bagels are produced, and a portion of the production is sold on the premises at retail, the remainder to other retailers for resale. The baking and wholesale distribution is the principal function of the corporation, while the on premises retail sales are by the partnership. Production was not segregated as between wholesale and retail, and all employees engaged in baking were paid by check drawn on the corporation account. Joseph Rubenstein is president of the corporation, 27 and he, his son, Morris, and Herman Reiter are the principals in the partnership. The parties stipulated that the corporation was, for the year ending January 31, 1967, a member of the Council. There is no evidence as to the partnership's status with respect to the Council. 3. Culver Bagel Bakery Both complaints herein list Culver Bagel Bakery as a member of the Council and a Respondent. In each instance the address of that Company is listed as 483 McDonald Avenue, Brooklyn, New York. The answers filed by Counsel on July 14, on behalf of all Respondents, while denying generally that the Council functioned as an employer association which bargained on behalf of the members listed in Appendix A to the complaint, raised no issue with respect to the continued existence of the Culver enterprise, or any successor thereto. By his September 13 order, the Regional Director also amended the complaints by adding to Appendix A to each complaint "Fred Lemberg and Jerry Lemberg, d/b/a Culver Bagels, 483 McDonald Avenue, Brooklyn, New York," and alleging that on about June 21, Culver Bagel Bakery ceased to operate, and at all times thereafter Fred and Jerry Lemberg, d/b/a Culver Bagels, operated said shop and 'This is the same address given in the Appendix for the Corporation. "The record does not show who the other officers are, or where the stock ownership resides. engaged in substantially the same business operations formerly engaged in by Culver Bagel Bakery. A copy of said order was received by the Lembergs on September 14. At the opening of the hearing on September 18, the General Counsel filed as a part of the formal papers a letter from Sherman S. Lawrence, Esq., dated September 15, stating that as Counsel for the Lembergs he was objecting to their being joined in this proceeding, claiming the same to be "without foundation in law or fact." Lawrence's letter further states, in substance: (1) on June 21, Culver-McDonald Bagels, Inc., acquired the fixed assets and leasehold improvements of the business formerly operated under the name of Culver Bagel Bakery, Inc.; (2) on the same date Jerry and Fred Lemberg took over the aforesaid assets and improvements, and thereafter conducted said business as Culver Bagels; (3) that the complaints herein are based on events occuring before June 21; (4) that the Lembergs were not then, nor had they ever been members of the Council; and (5) that at no time since June 21 had the Lembergs hired any employees. Lawrence further requested that his letter be made a part of any hearing held in connection with these cases.26 E. Contentions and Concluding Findings 1. The jurisdictional issue As stated above, the General Counsel concedes that considered individually, none of the employers involved does a volume of business sufficient to meet any jurisdictional standard announced by the Board. On the other hand Respondents admitted the factual allegations of the complaints and concede that if the operations of the employer members of the Council are considered in totality, the employer members do meet the Board's $50,000 wholesale, inflow and outflow standards, as well as its $500,000 retail standard. Whether the collective business of the employer members of the Council may properly be considered in deciding the jurisdictional issue, turns on whether Respondent employers have expressly or by implication indicated their intention to be bound in collective bargaining by group, rather than individual action. If the evidence dictates an affirmative answer to that question Respondent employers are, for jurisdictional purposes, regarded as a multiemployer bargaining group, and the total business of the entire group is considered in determining whether the Board's jurisdictional standards are met. N.L.R.B. v. Gottfried Baking Co., 210 F.2d 772 (C.A. 2), enfg. as modified, 103 NLRB 227; N.L.R.B. v. Sightseeing Guides Union, 310 F.2d 40 (C.A. 2), enfg. 133 NLRB 985; Pearl Beer Distributing Co. v. N.L R.B., 331 F.2d 301 (C.A. 5), enfg. 143 NLRB 596, cert. denied 379 U.S. 830; Dover Tavern Owners Association, 164 NLRB No. 130; Korner Kafe, Inc.. 156 NLRB 1157, 1160; Marble Polishers Local 121, 132 NLRB 844, fn. 1; Western Council of Lumber and Sawmill Workers, AFL-CIO, 166 NLRB No. 7. Nor is it material in deciding whether a multi-employer bargaining exists to determine whether there be formal authorization to a formally organized association to act for and bind the "The letter, which I regard as a general appearance , was as Lawrence requested, made a part of the record . The undersigned also directed the General Counsel to advise Lawrence that the hearing was in progress and that his clients interested might best be served by his presence at the hearing. Subsequently, the General Counsel advised me that had conveyed said message Neither Lawrence nor either of the Lembergs appeared at the hearing. BAGEL BAKERS COUNCIL group, or that the employers reserved to themselves the right to decide whether or not they would execute any agreement negotiated by the group. Sightseeing Guides Union, supra; American Publishing Corp., 121 NLRB 115, 118-120; Western Council of Lumber and Sawmill Workers, AFL-CIO, supra. 11 The salient evidence in this record, which is for the most part undisputed, shows that for some years a group of employers, all members of the Council, together- with Council President Glass, met and negotiated an agreement with Local 338, which was thereafter reduced to writing, and in identical form was signed by all members of the Council. This is plainly a history manifesting a desire for group or multiemployer, rather than individual bargaining. 30 Added to the foregoing is the fact that the communications between Local 338 on the one hand, and the Council and its members on the other, all speak in terms of collective, as distinguished from individual bargaining. And finally, Kalkstein, Financial Secretary of the Council and one of the principal spokesmen for the employer's bargaining committee, who attended virtually all of the bargaining sessions, admitted that in the bargaining sessions here involved, he and his associates sought from Local 338 for the benefit of members of the Council, a contract that would be "one for all and all for one." On this evidence considered in the light of the principles above stated, I find that in negotiating with Local 338 and Local 802, Respondent employers evidenced their intention to be bound by group or multiemployer, rather than individual action; that the business of the entire group may be considered in determining whether the Board's jurisdictional standards are met; and that on the basis of the admitted and stipulated facts, both the wholesale and retail jurisdictional standard of the Board is satisfied. I so find and conclude. 2. The refusal to bargain with Local 338 a. The 8(d) aspects Section 8(d) of the Act3' requires, in substance, that the parties shall continue any existing contract in full force "In American Publishing, supra, the Board said [at p. 118] We agree that the Association was not authorized to bargain in behalf of the Employer in negotiating the 1956 contract This, however, does not preclude a finding that the employers acted as an informal group . And the fact that negotiations were by such an informal group rather than a formal association does not preclude a finding that the informal group constitutes a single Employer for the purposes of collective bargaining. Nor is a find;-ig required that there is no multiemployer bargaining history because once negotiations were concluded and the final agreement drawn up, each Employer executed the contract itself rather than delegate the right to execute the agreement ,to a representative with power to bind the group. "While the Board has held that an employer's signing of an areawide agreement in the negotiation of which he did not participate, was not sufficient, standing alone, to establish an intent to be bound by collective rather than individual action, see Gordon Electric Company, 123 NLRB 862, it held in Dover Tavern Owners ' Association, supra, that the requisite evidence of intention to be bound by collective action, and the establishment of a multiemployer unit, may be inferred from the fact that a committee of the association 's membership negotiated two biannual contracts with the Union which all members of the association accepted by signing the contracts thus negotiated The facts of the instant case more closely parallel the facts in Dover, supra. It is for this reason and became formal authorization to the Council to act on behalf of its employer members is not a critical factor [see American Publishing Corporation, quoted supra], that I find immaterial the fact upon which Respondents so heavily rely, that no member of the Council signed or otherwise indicated an intention to agree to the provisions of paragraph Thirty-Fifth of the 629 and effect, for a period of 60 days or the expiration of the contract whichever occurs later, after notice to the other party of the desire to terminate or modify an existing contract, and notifies the Federal and State Mediations Services, within 30 days after the notice of intention to terminate, of the existence of the dispute. Where there is non-compliance with the section, the existing contract continues in effect by operation of law, with any intervening strike or lockout made unlawful. Fort Smith Chair Company, 143 NLRB 514; Retail Clerks International Association , 109 NLRB 754.32 The evidence shows that it was not Local 338, but Respondents who, on November 29, 1966, gave notice of intention to terminate the then existing -contract.33 This fact, therefore, placed upon Respondents the duty of complying with the notice requirement of Section 8(d)(3) of the Act. Fort Smith Chair Company, supra; Cream Top Creamery, Inc., 147 NLRB 264, 272. Assuming, without deciding that the informal notice which the State Service somehow acquired constituted compliance with Section 8(d)(3) of the Act so far as notice to the State Service is concerned, it was-stipulated by the parties that no notice of any kind was given to the Federal Service until March 9 - more than 3 months after the notice of intention to terminate the then existing contract, and some 5 weeks after Respondents locked out their employee members of Local _ 338. That this did not constitute compliance with the mandate of Section 8(d)(3), so far as notice to the Federal Service is concerned, is too plain for argument. Respondents argue, however, that the failure to 1966-67 contract, fn. 8, supra, which would have authorized Local 338 to deal with the Council as the representative of that employer member, and that absent such designation such authorization was not granted -The material portions of this Section of the Act provide: For the purposes of this section, - to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other conditions of employment, or the negotiation of an agreement , or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party , but such obligation does not compel either party to agree to a proposal or require the making of a concession: Provided, that where there is in effect a collective-bargaining contract covering employees in an industry affecting commerce, the duty to bargain collectively shall also mean that no party to such contract shall terminate or modify such contract , unless the party desiring such termination or modification - (1) serves a written notice upon the other party to the contract of the proposed termination or modification sixty days prior to the expiration date thereof, or in the event such contract contain. no expiration date, sixty days prior to the time it is proposed to make such termination or modification, (2) offers to meet and confer with the other party for the purpose of negotiating a new contract or a contract containing the proposed modifications; (3) notifies the Federal Mediation and Conciliation Service within thirty days after such notice of the existence of a dispute and simultaneously therewith notifies any State or Territorial agency established to mediate and conciliate disputes within the State or Territory where the dispute occurred, provided no agreement has been reached by that tune; and (4) continues in full force and effect, without resort to strike or lockout, all the terms and conditions of the existing contract for a period of sixty days after such notice is given or until the expiration date of such contract whichever occurs later: . 3'Although both of those cases involved strike action by a union, the principles there laid down are equally applicable to a lockout by an employer. "As heretofore set forth, Local 338 asserted from the start of negotiations that it had no bargaining proposals to submit and that it sought only a renewal of the 1966-67 contract. 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD give notice to the Federal Service did not amount to a violation of Section 8(d)(3) of the Act, in view of the announced policy of the Federal Service "To refrain from proffering its services : . (2) in labor-management disputes having a minor effect on interstate commerce, if state or other conciliation services are available to the parties, . . ." 29 CFR, chapter XII, Section 1403, 2(d). To have given the required notice in the instant case, Respondents argue, would have been a useless act because the Federal Service would not have proffered its services in view of the minimal effect this dispute had on interstate commerce. The contention is without merit. In the first place, in fixing its criteria for the assertion of jurisdiction, the Board decided that where the members of a multiemployer unit are engaged in a wholesale business with a combined annual inflow or outflow in excess of $50,000, or retail business in excess of $500,000, the effect on interstate commerce is substantial and the policies of the Act will best be served by asserting jurisdiction (section E, 1, supra). Secondly, Section 8(d)(3) of the Act is specific that the required notice be given by the party who gives notice of the desire for contract termination or modification. Whether the Service, when it receives such a notice, will see fit to proffer its mediatory offices, is for the Service to decide, and Respondents may not arrogate to themselves the decision of that question. For the reasons stated, I find and conclude that having failed to give the Federal Service notice of the existence of the instant dispute until March 9, Respondents' lock-out of their employee member of Local 338 on February 1, constituted a refusal to bargain with Local 338, within the meaning of Section 8(a)(5) of the Act. b. The alleged surface bargaining Although I have found that Respondents violated Section 8(a)(5) of the Act by locking out the employee member of Local 338 without giving the notice required by Section 8(d)(3) of the Act, and while the remedy for such violation would be identical with that which would be required if it were found that the lockout was in support of bad faith or surface bargaining, I nonetheless deem it desirable to consider and pass upon some of the General Counsel's contentions that Respondents' bargaining with Local 338 was not in good faith, and that Respondents' lockout of their employee members of Local 338 was for the purpose of fostering and promoting their unlawful refusal to bargain, and hence was violative of the Act. As heretofore detailed, Respondents' approach to the bargaining, and the course from which they never deviated, was to seek a'contract which would provide a 40 percent reduction in labor costs for all members of the Council. And this course was pursued even though Glass admitted to representatives of Local 338, at their informal meeting on January 13, that not all members of the Council were losing money but that some wanted to take advantage of the situation. During the bargaining sessions, on numerous occasions when the claim was made that economic conditions in the industry required 40 percent reduction in labor costs, Local 338 requested that if any employer was losing money, it should produce its books, or an audit thereof, to support the claimed inability to pay. That such books or audits were not produced by any employer was admitted by Kalkstein.36 It has long been settled law that when an employer seeks to justify its insistence upon reduced labor costs for economic reasons, "good faith bargaining under the Act requires that upon request the employer attempt to substantiate its economic position by reasonable proof." (Truitt Manufacturing Co., 110 NLRB 856, enfd. 351 U.S. 149. See also Jacobs Manufacturing Company, 94 N.L.R.B. 1214, enfd. 196 F.2d 680 (C.A. 2); Western Wirebound Box Company, 145 NLRB 1539, enfd. 356 F.2d 88 (C.A. 9); Stanley Building Specialties Co., 166 NLRB No. 110.35 For, as the Supreme Court said in Truitt, supra [at 152-153]: Good-faith bargaining necessarily requires that claims made be honest claims. This is true about an asserted inability to pay an increase in wages. If such an argument is important enough to present in the give and take of bargaining, it is important enough to require some sort of proof of its accuracy. And it would certainly not be farfetched for a trier of fact to reach the conclusion that bargaining lacks good faith when an employer mechanically repeats a claim of inability to pay without making the slightest effort to substantiate the claim. Upon the entire record in the case, I am convinced that Respondent's failure to supply data to support their claim that economic conditions necessitated a 40 percent reduction in labor costs, protracted the bargaining negotiations between the parties and substantially "contributed to a stalemate in [their] negotiations" (Stanley Building Specialties Co., supra), evidencing a failure to bargain in good faith, in violation of Section 8(a)(5) of the Act. I so find and conclude. Also evidencing a failure to bargain in good faith is Respondent's proposal that any contract they might agree to' be of no longer duration then day-to-day, week-to-week, or at most month-to-month. The whole purpose of a labor contract is to stabilize the labor relation between the parties for a reasonable period of time. Cf. International News Service Division of Hearst Corporation, 113 NLRB 1067. A contract limited in duration as I have found Respondents insisted upon is, in practical effect, no contract at all, and a strong indicia of a refusal to bargain in good faith within the meaning of Section 8(d) of the Act. Solo Cup Company, 142 NLRB 1290, enfd. 332 F.2d 447 (C.A. 4); Henry Heide, Inc., 107 NLRB 1160, enfd. 219 F.2d 46 (C.A. 2), cert. denied 349 U.S. 952.36 In the instant case the unit had been established. and Local 338 recognized for many years. No question of an expiring certificate or the Union's loss of majority was in the contemplation of Respondents. In '•Kalkstein's excuse for such failure to produce - that the parties never got that far in the bargaining and that the Union never demanded them - I reject as not credible. "It is true, of course, that in the cited cases the Union was asking for a wage increase, which the employer declined to grant because of alleged poverty or competitive conditions , while in the instant case the employers sought a wage decrease because of competitive conditions. This factual distinction, however, can , have no bearing on the legal principle involved, for in either case, "the give-and-take of collective bargaining is hampered and rendered ineffectual when an employer mechanically repeats his claim but makes no effort to produce substantiating data" (N.L.R.B. v. Western Wlrebound Box Company, 356 F.2d at 90.91). "While the Board has held that the duration of a contract is itself a bargaining issue, and that an employer may, without violating Section 8(a)(5), insist that a contract be limited to the certification year (Lloyd A. Fry Roofing Co., 123 NLRB 647 at 650), the Board there pointed out, that insistence upon a contract of short duration does violate the bargaining obligation of a party, if such insistence is in bad faith or to achieve an illegal purpose BAGEL BAKERS COUNCIL short, no legitimate reason is advanced by Respondents for limiting the duration of the proposed contract. It is reasonable to infer, therefore, that what Respondents wanted was a free hand to change the wages, hours and working conditions of the employees at their pleasure and without the restrictions of a binding agreement." Upon such facts, I can only find and conclude, as I do, that Respondents insistence upon a day-to-day, week-to-week, or at most a month-to-month contract, was not advanced in good faith within the meaning of Section 8(d), and hence was violative of Section &(a)(5) of the Act.38 It follows therefore, and I find and conclude, that Respondents violated Section 8(a)(5) and (1) of the Act by (a) terminating the then existing contract and locking out the employee members of Local 338 without giving the requisite notice to the Federal Mediation Service; (b) by bargaining in bad faith with Local 338; and (c) by locking out the members of Local 338 for the purpose of supporting Respondents' bad faith bargaining. c. The 8(aX3) violation I further find and conclude that Respondents' lockout of their employee members of Local 338 also constituted discrimination against said employees with respect to their tenure and terms and conditions of employment, which discouraged membership in Local 338 and hence was violative of Section 8(a)(3) and (1) of the Act. Quaker State Oil Refining Corporation, 121 NLRB 334, 337; The Great Atlantic & Pacific Tea Company, 145 NLRB 361. Respondents' contention that their lockout of the Local 338 members was only to pressure that Union into agreeing to Respondents' economic demands and therefore lawful under American Ship Building Co. v. N.L.R.B., 380 US. 300, I find without merit. In the concluding paragraph of its opinion the Supreme Court summarized its holding in American Ship Building, thus (at,318) Accordingly; we hold that an employer violates neither [Section] 8(a)(1) nor [Section] 8(a)(3) when, after a bargaining impasse has been reached, he temporarily shuts down his plant and lays off his employees for the sole purpose of bringing economic pressure to bear in support of his legitimate bargaining position. [Emphasis supplied.] I take this to mean that an employer may use the lockout weapon only after he has bargained in good faith to an impasse, and that absent a valid impasse, the lockout is discriminatory and inherently destructive of employees' rights protected by Section 7 of the Act. Respondents' bargaining here was not, as I have found, in good faith, hence no valid impasse was reached and the lockout was not legitimate employer action. "This inference find support in the fact that at one of the negotiating meetings Respondents proposed that the members of Local 338 return to work without a contract, and that Respondents would pay them what they felt they could afford. "Having found and concluded that Respondents failed to bargain in good faith with Local 338, by failing to furnish information and by insisting upon a contract term of unreasonable short duration, it become unnecessary to consider the General Counsel 's contention that such refusal to bargain is also evidenced by other conduct of Respondents. Such additional conduct if found, would merely be cumulative, unnecessarily extending this Decision, and would in no way affect the nature or scope of the remedy that I shall recommend. 631 3. The refusal to bargain with Local 802 As heretofore stated, in accordance with long standing custom, and so far as this record shows by mutual consent, bargaining between Respondents and Local 802 was deferred pending negotiations and an agreement with Local 338." As agreement was never reached with Local 338, the time did not arrive when Respondents were called upon to bargain with Local 802. On this state of facts I have difficulty in perceiving a theory to support a conclusion that the Union had made a demand for current bargaining on Respondents that would impose upon the latter a bargaining obligation." However, I find it unnecessary to extend this Decision with an academic discussion of the elements of an 8(a)(5) violation, because my disposition of the 8(a)(3) aspects of the case will, for all practical purposes, give Local 802 complete relief and fully effectuate the policies of the Act." I now proceed to that branch of the case. 4. The 8(a)(3) violation as to Local 802 Having herein above found and concluded that Respondents locked out their employee members of Local 802, I further find and conclude, that such lockout was violative of Section 8(a)(3) and (1) of the Act. The lockout of drivers was part and parcel of Respondents' lockout of their bakers, action taken to support the unlawful bargaining with Local 338. The lockout, therefore, constituted discrimination not only against bakers, but against the drivers as well, and had the natural effect of discouraging membership in Local 802 within the meaning of Section 8(a)(3) of the Act, and was therefore, violative thereof. Great Atlantic & Pacific Tea Company, 145 NLRB 361, 365; Southland Manufacturing Corp., 157 NLRB 1356, 1391.92 "While the evidence shows that 802 president Strauss 'was present at the Local 338 bargaining sessions on January 30 and 31, and at other meetings in March and April, the record is clear that he was there only to see if the bargaining with Local 338 had concluded so that negotiations with Local 802 might start. I find nothing in his testimony that might reasonably be construed as a demand that Respondents negotiate with Local 802 irrespective of the status of negotiations with Local 338. That Local 802 sent no contract demands to Respondents as it said it would do in its termination notice of November 29, 1966, and the fact that not even to this time has Local 802 made any bargaining demands on Respondents or called upon the latter to bargain with it supports the conclusions that it did not expect such bargaining until Respondents' negotiations with Local 338 were concluded "The only theory which might conceivably support such a conclusion would be that Respondent purposely protracted the bargaining with Local 338 for the purpose of avoiding the event which would make it necessary for them to bargain with Local 802 In my view the record - in this case affords no support for such a finding. If Local 802 desires bargaining with Respondents, an unconditional demand for such even at this time would , so far as this record shows, impose that obligation. In reaching this conclusion I am not unmindful of the fact that the Second Circuit declined to enforce that portion of the Board's order in Great Atlantic & Pacific Tea Company, supra, which provided for reinstatement and backpay to the warehouse and bakery employees who were thrown out of work when the Company unlawfully closed down its stores and locked out the meatcutters , in support of its bargaining demands against the latter. The Court held that the layoff of the warehouse and bakery employees was merely incidental to the primary dispute with meatcutters, and as there was no affirmative evidence that the Company intended to discriminate against the warehouse and bakery workers their lockout did not have the effect of discouraging membership in those Unions. The Court's decision in A & P is, in m} view, distinguishable from the instant case . In A & P the Company shut down all operations, so that there was no work for the warehouse or bakery 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. The authority of the Council to bargain for Pop Bagel Bakery Upon consideration of the entire record relating to this issue, summarized supra section D, 1, I find and conclude that Pops evidenced its intention to participate in and be bound by the results of the Councils multiemployer bargaining with both Local 338 and Local 802, and by reason thereof is required to remedy the violations herein found . Having evidenced such intention during the negotiations looking toward a contract to replace the one scheduled to expire in January 1967, it could not lawfully withdraw from such negotiations, absent the Union's consent. Retail Associates, Inc., 120 NLRB 338; Sheridan Creations, 148 NLRB 1503, enfd . 357 F.2d 245 (C.A. 2), cert. denied 385 U.S. 1005. 6. The status of Rubenstein Bagels The facts relating to this issue (summarized supra, section D, 2), are sufficient to establish, and I find and conclude, that the corporation and the partnership constitute a single integrated enterprise operated under a common labor policy. The fact that the corporation and the partnership both deal in the same product at the same premises; and that some employees who apparently work for the partnership are paid from the funds of the corporation, certainly support an inference of integration and common operation, and is sufficient to cast upon Respondents the obligation of going forward with evidence to refute that inference, or to show that the inference normally drawn from said facts is, for some reason, not a permissable one. This Respondents failed to do. Accordingly, I find and conclude that Rubenstein Bagels, Inc., and Joseph Rubenstein, Morris Rubenstein and Herman Reiter, co-partners d/b/a Rubenstein Bagels, together constitute a single intergrated business enterprise which is responsible for remedying the unfair labor practices herein found. 7. Culver Bagels as successor to Culver Bagel Bakery Upon the facts (summarized supra, section D, 3), 1 find and conclude that since June 21, Fred Lemberg and Jerry Lemberg, d/b/a Culver Bagels, has been and is a succesor in interest to Culver Bagel Bakery, having purchased the assets of the latter after the unfair labor practices by Culver Bagel Bakery, and thereafter continued to operate the same business enterprise at the same location where Culver Bagel Bakery theretofore operated. As such successor, and notwithstanding that the purchase by Culver Bagels was in good faith, and for value, it is under the legal duty to comply with the obligation hereinafter employees to perform, while in the instant case Respondents continued to operate, albeit on a reduced scale , and many made deliveries to their customers - work which the Local 802 employees theretofore performed through owners, members of their family, and some hired non-802 members. Also, the Court found in A & P that there was no dispute between the food stores there involved and the warehouse and bakery works and that there was a complete absence of evidence to prove employer intent to discriminate against said employees Here, the contract with teamsters had been terminated by the latter and negotiations for a new contract, though temporarily in abeyance by mutual consent , were in order. In any event, and even assuming that this case is indistinguishable from A & P, supra, the Board has not indicated its acquiescence in that holding, and until it does so, or the question is put to rest by a decision of the Supreme Court, it is my duty to follow the Board's A & P decision. Insurance Agents International Union, 119 NLRB 768, 773; Iowa Beef Packers, Inc., 144 NLRB 615, 616 imposed upon Culver Bagel Bakery, to the extent that the latter does not do so. Perma Vinyl Corporation, 164 NLRB No. 119; Makela Welding, Inc. v. N.L.R.B., 387 F.2d 40 (C.A. 6), and cases there cited. Upon the foregoing findings of fact and the entire record in the case, I make the following: ,CONCLUSIONS OF LAW 1. The Council and each of the Respondents mentioned in "Appendix. A" to the complaints, as amended, is an employer within the meaning of Section 2(2) of the Act. 2. Respondent employers listed in "Appendix A" to the complaints herein have, with the assent of Local 338 and Local 802, expressed an unequivical intention to be bound in collective bargaining with said unions by group action, and thereby established multiemployer bargaining units, and that said employers are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. Local 338 and Local 802 are labor organizations within the meaning of Section 2(5) of the Act. 4. At all times material herein Local 338 has been the exclusive bargaining representative of the employees in a multiemployer bargaining unit composed of all bakers and kettlemen, including ovenmen, henchmen, fourth men, and jobbers, excluding all other employees and all supervisors as defined in Section 2(11) of the Act, employed by the employer member of the Council, which unit is appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 5. By locking out their employee members of Local 338 without having given the notice required by Section 8(d) of the Act, by their bad faith bargaining with Local 338, and by their lockout of the aforesaid employees in furtherance and support of their aforesaid bad-faith bargaining, Respondents refused to bargain with Local 338, and interfered with, restrained and coerced their employee members of Local 338, and thereby engaged in, and are engaging in, unfair labor practices proscribed by Section 8(a)(5) and (1) of the Act. 6. By locking out their employee members of Local 338 and Local 802, on February 1, 1967, and by failing and refusing to reinstate them, Respondents discriminated against said employees in regard to their hire, tenure of employment, and other terms and conditions of employment, thereby discouraging membership in said Locals, and interfered with, restrained, and coerced said employees in the exercise of their right to self-organization, and thereby engaged in, and are engaging in unfair labor practices proscribed by Section 8(a)(3) and (1) of the Act. 7. Joseph Rubenstein, Morris Rubenstein and Herman Reiter copartners doing business as Rubenstein Bagels, and the corporation known as Rubenstein Bagels, Inc., together constitute a single integrated business enterprise which is responsible for remedying the unfair labor practices herein found. 8. Pops Bagel Bakery and D & H Bagel Bakery constitute a single intergrated business enterprise which is responsible for remedying the unfair labor practices herein found. 9. Fred Lemberg and Jerry Lemberg, doing business under the name and style of Culver Bagels, is a successor of Culver Bagel Bakery, and as such is required to comply with all obligations which the order to be recommended herein imposes upon Culver Bagel Bakery, to the extent that the latter does not comply with the same. BAGEL BAKERS COUNCIL 10. The unfair labor practices found are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 11. The General Counsel has failed to prove that Respondents refused to bargain with Local 802, and that allegation of the complaint in Case 29-CA-923-2, should be dismissed. THE REMEDY Having found that Respondents violated Section 8(a)(5) and (1) of the Act by bargaining in bad faith with Local 338, and by terminating their contract with Local 338 and locking out the employee members thereof without giving the required notice to the Federal Mediation Service, I shall recommend that Respondents be required to (1) resume, and in all respects continue to comply with the contract with Local 338, effective February 1, 1966, and continue such compliance until said contract is terminated by (a) mutual consent, or (b) compliance with the provisions of Section 8(d) of the Act, and on request bargain in good faith with Local 338 and if agreement is reached reduce the same to a written signed contract. It having been further found that Respondents discriminated against their employee members of Local 338 and Local 802, in violation of Section 8(a)(3) and (1) of the Act, I shall recommend that Respondents severally be required to offer immediate, full and unconditional reinstatement to each employee member of Local 338 and Local 802, whom they severally locked out on February 1, ,1967, to their former or substantially equivalent job, and make each of said employees whole for any loss of earnings they severally suffered by paying to each such employee a sum of money equal to the wages he normally would have earned during the period beginning Februaryl, 1967, and terminating with the date of his reinstatement, less his net earnings, if any, during said period, in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, with interest at the rate of 6 percent per annum as provided in Isis Plumbing & Heating Co., 138 NLRB 716.43 RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is recommended that the National Labor Relations Board order that Bagel Bakers Council of Greater New York (herein Council), Bagel Box, Inc., Bagel Town, Inc., Benson Bagel Bakery, Culver Bagel Bakery, Fred Lemberg and Jerry Lemberg, d/b/a Culver Bagels, successor to Culver Bagel Bakery, Far Rockaway Bagel Bakery, Inc., Flatlands Bagel Bakery, Inc., Golden Bagel Corp., Island Park-Nassau Bagel Bakery, Laurelton Bagel Bakery, Nelson Bagel Bakery, Inc., Neptune Bagel Bakers, Inc., Rubenstein Bagels, Inc., Joseph Rubenstein, 43As used herein , the term "Respondents" includes each Respondent mentioned in either complaint, as amended I have found that since December 1966, D &. H Bagel Bakery and Pops Bagel Bakery has been and is a single employer responsible for all unfair labor practices found. Although not named in the complaint involving Local 802, it was admitted that Nelson Bagel Bakery was a member of council, and the proof shows that it participated' in the unfair labor practices found Its liability was, therefore, fully litigated, and I deem it appropriate to grant relief as to it However, as stated supra, section E, 7, the relief granted as to Culver Bagels, is granted only to the extent that its predecessor Culver Bagel Bakery does not comply with the order as to it. 633 Morris Rubenstein and Herman Reiter, copartners doing business as Rubenstein Bagels, Tri-Boro Bagel Co., Inc., Pops Bagel Bakery, Inc., and D & H Bagel Bakery, their respective officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing, upon request, to bargain in good faith with Bagel Bakers Union Local 338, Bakery and Confectionery Workers International Union of America, AFL-CIO (herein Local 338), as the collective-bargaining representative of all employees in a unit of all bakers and kettlemen, including ovenmen, benchmen, fourth men, and jobbers in the employ of members of the Council, excluding all other employees and all supervisors as defined in Section 2(11) of the National Labor Relations Act, as amended, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. (b) Refusing, upon request, to furnish Local 338 with data relating to the financial status and business operations of the employer members of the Council, and all other information necessary or relevant to collective bargaining negotiations between the parties. (c) Demanding or insisting that any agreement negotiated with Local 338 be effective for no greater period than day-to-day, week-to-week, or at most month-to-month, or for any other period of unreasonably short duration. (d) Locking out or terminating employees in the unit set' forth in paragraph l(a) above, in support of a demard for a contract of unreasonable short duration, or after failing to supply information of the nature described in paragraph 1(b) above. (e) Refusing or failing to continue in full force and effect or failing or refusing to fully comply with each and every provision of the collective bargaining agreement with Local 338,, effective from February 1, 1966, unless and until said agreement is terminated (1) by mutual consent of the parties, or (2) in the manner provided in Section 8(d) of the National Labor Relations Act, as amended. (f) Refusing to employ or locking out the employees in the unit set forth in paragraph 1(a) above,, who are members of or represented by Local 338, without complying with Section 8(d)(1), (2), (3), and (4) of the National Labor Relations Act, as amended. (g) Discriminatorily locking out or terminating employees in the unit set forth in paragraph 1(a) above, or employees who are members of or represented by Bakery Drivers Union Local 802, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (herein Local 802), in the units hereinafter mentioned, in order to discourage membership in Local 338 or Local 802, or in any' other manner discriminating in regard to the hire or - tenure 'of employment or any other term or condition of employment of the employees in any of ' the aforementioned units. The Units represented by Local 802 are: (1) All route drivers, relief route riders, peddlers, independent jobbers, agents, distributors, bobtailers, and driver sales clerks employed by any member of the Council, excluding all other employees and all supervisors as defined in Section 2(11) of the National Labor Relations Act, as amended. (2) All stringers, jumpers, helpers and sale clerks employed by any member of the Council, excluding all other employees and all supervisors as defined in Section 2(11) of the National Labor Relations Act, as amended. 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (h) In any other manner interfering with, restraining or coercing employees in the exercise of their right to self-orgainzation, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, of to refrain from any and all such activities. 2. Take the following affirmative action found necessary and designed to effectuate the policies of the aforesaid Act: (a) Upon request, through the Bagel Bakers Council of Greater New York, bargain collectively with Local 338 as the exclusive representative of the employees in the unit set forth in paragraph 1(a) above, with respect to rates of pay, wages, hours of employment and other terms and conditions of employment, and if an understanding is reached, embody such understanding into a signed contract. (b) Furnish to Local 338, upon request, financial data relating to the business operations of the members of the Council, as well as all other information necessary or relevant to the collective bargaining negotiations between said parties. (c) Offer immediate, full and unconditional reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights, privileges, or working conditions, to their respective employees who are members of or represented by Local 338 or Local 802 and in one of the units set forth in paragraphs 1(a) and (g), who were locked out or otherwise terminated on or about February 1, 1967, and make each such employee whole for any loss of earnings he may have suffered, in the manner set forth in the section hereof entitled "The Remedy." (d) Preserve and, upon request, make available to authorized agents of the National Labor Relations Board, ,for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary or useful in computing the amount of backpay herein provided. (e) Notify each employee entitled to reinstatement pursuant to the provisions of paragraph 2(c) above if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service of 1948, as amended. (f) Post of their respective places of business where bagels are produced or sold, copies of the notice attached hereto marked "Appendix."44 Copies of said notice on forms provided by the Regional Director for Region 29, shall, after being signed by an authorized representative, be posted immediately upon receipt thereof and be so maintained for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted, and take all reasonable steps necessary to insure that said notices are not altered, defaced, or covered by any other material. . (g) Notify the aforesaid Regional Director, in writing, within twenty days from the date of receipt of this "In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." Decision what steps they severally have taken to comply herewith. °5 IT IS FURTHER RECOMMENDED that the complaint in Case 29-CA-923-2, to the extent that it alleges that Respondent refused to bargain with Local 802, be dismissed. "In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read. "Notify the aforesaid Regional Director, in writing, within 10 days from the date of this Order, what steps they severally have taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: After a trial, in which all parties had an opportunity to present their evidence, a Trial Examiner of the National Labor Relations Board has found that we violated the National Labor Relations Act in certain respects and has ordered us to post this notice so that you may know your rights under that Act in connection with the situation involved in the case. WE WILL, on request, through Bagel Bakers Council of Greater New York, bargain collectively with Bakery Workers Local 338 as the exclusive representative of employees in a unit composed of all bakers and kettlemen, including ovenmen, benchmen, fourth men, and jobbers in the employ of members of the aforesaid Council, excluding all other employees, and all supervisors, with respect to rates of pay, wages, hours of employment and other terms and conditions of employment, and if an understanding is reached embody the same into a signed contract. WE WILL in the course of such bargaining, upon request, supply Local 338 with financial data relating to the status and business operations- of the employer members of the aforesaid Council, as well as all other information necessary or relevant to our bargaining with Local 338. WE WILL NOT, in the course of such bargaining, insist or demand that any agreement reached with Local 338 be effective for no greater period than day-to-day, week-to-week, or at most month-to-month, or for any other period of unreasonably short duration. WE WILL NOT lockout or terminate employee members of Local 338 in support of a demand for a contract of unreasonable short duration, or after failing or refusing to supply financial and other data of the nature heretofore mentioned. WE WILL NOT terminate, lockout or refuse to employ members of Local 338, or terminate and cease giving effect to any contract we may have with Local 338, without having first complied with the applicable provisions of Section 8(d) of the Act. . WE WILL NOT lockout, or in any other manner discriminate in regard to the hire or tenure of employment or any other term or condition of employment of any of our employees in the aforesaid unit represented by Local 338, or +n the units represented by Bakery Drivers Local 802. The units represented by Local 802 are: BAGEL BAKERS COUNCIL (a) All route driver, relief route riders, peddlers, independent jobbers, agents, distributors, bobtailers, and driver sales clerks employed by members of the aforesaid Council, excluding all other employees and all supervisors. (b) All stringers, jumpers, helpers and sales clerks employed by any member of the aforesaid Council, excluding all other employees and all supervisors. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, WE WILL give full effect to, and in all respects fully comply with each and every provision of our contract with Local 338, which became effective February 1, 1966, and will continue to do so until such time as said contract is terminated by mutual consent of the parties, or in a manner provided by Section 8(d) of the Act. WE WILL offer immediate, full and unconditional reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights, privileges, or working conditions, to all our employees who are members of or represented by Local 338 or Local 802, in any one of the Units set forth above, whom we locked out or otherwise terminated on February 1, 1967, and make each such employee whole for any loss of earnings he may have suffered by paying to him a sum of money equal to the difference between what he normally would have earned between February 1, 1967, and the date of his reinstatement, and his net earnings during said period. 635 All our employees are free to become or remain members of Bakery Workers Local 338, or Bakery Drivers Local 802, or refrain from becoming or remaining a member of either of said unions. BAGEL BAKERS COUNCIL OF GREATER NEW YORK, BAGEL Box, INC. BAGEL TOWN, INC., BENSON BAGEL BAKERY, CULVER BAGEL BAKERY, FRED LEMBERG AND JERRY LEMBERG, D/B/A CULVER BAGELS, SUCCESSOR TO CULVER BAGEL BAKERY, FAR ROCKAWAY BAGEL BAKERY, INC., FLATLANDS BAGEL BAKERY, INC., JOSEPH RUBENSTEIN, MORRIS RUBENSTEIN AND HERMAN REITER, COPARTNERS DOING BUSINESS AS RUBENSTEIN BAGELS, TRI-BORO BAGEL CO. INC., Pops BAGEL BAKERY, INC., AND D & H BAGEL BAKERY. (Employers) Dated By (Representative) (Title) WE WILL notify each employee entitled to reinstatement, if presently serving in the Armed Forces of the United States, of his right to full reinstatement upon application, in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 16 Court Street, 4th Floor, Brooklyn, New York 11201, Telephone 596-5386.