Bagel Bakers Council of Greater New York

622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bagel Bakers Council of Greater New York and its Employer-Members and Bagel Bakers Union Local 338 of the Bakery and Confectionery Workers In- ternational Union of America. Case 29-CA-887-1 October 28, 1976 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On September 10, 1976, Administrative Law Judge James L. Rose issued the attached Supplemental De- cision in this proceeding.' Thereafter, Respondent's filed exceptions, a supporting brief, and a brief sup- porting parts of the Supplemental Decision. The General Counsel filed limited exceptions, a support- ing brief, and a brief supporting parts of the Supple- mental Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Supplemental Decision in light of the excep- tions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, as mod- ified below.' The Administrative Law Judge found that the backpay period should toll on February 1, 1968, ir- respective of the fact that the Respondent's did not on that date make specific offers of reinstatement to specific individuals. We agree with this finding. The record reveals that subsequent to the time the employees were initially locked out there was an in- junction proceeding under Section 10(j) of the Act wherein on January 18, 1968, District Court Judge Rosling granted the Regional Director's petition and entered an order putting the parties back to the sta- tus quo pending the determination of the unfair la- bor practice charges by the Board.' Following the court's order, the Union's then busi- ness agent sent Council members a telegram ap- i The Board's original Decision and Order in this proceeding is reported at 174 NLRB 622 (1969). 2 We find merit in the General Counsel's exception to the Administrative Law Judge's failure to add the sum of $1,279 to the 1967 non-Council of interim earnings of James Goodrich The Administrative Law Judge's rec- ommended Order is hereby amended to credit the appropriate Respondent's accordingly. We also agree with the General Counsel's contention that the moneys owed to Markus Weisz should be paid directly to him rather than being placed in escrow Regarding moneys due Morris Minton, the record reveals that during the course of the hearing the General Counsel amended the backpay specifica- tion to show that his adjusted net backpay was $1,166 Accordingly, the recommended Order is modified to reflect the amended specification 3 Kaynard v Bagel Bakers Council, 67-c-776 (unreported) plying for reinstatement on behalf of the locked-out union members. The agent further requested, "Please communicate with the undersigned to make all nec- essary arrangements for the commencement of their reemployment ...." On or about February 1, 1968, pursuant to the Union's request, the Respondent sent the Union a telegram advising that the lockout was over and that the Respondent's would reinstate discharged em- ployees where employment was available. In finding that the telegram-to the Union was suf- ficient to toll backpay, notwithstanding the lack of direct communication to each employee, the Admin- istrative Law Judge considered the following factors. At all times material in this industry, it was more common than not for an employer to be assigned employees by the Union. It was not common for an employer to call an individual union member for work, nor was it permissible under the contract. In fact, under this industry practice, specific employers do not call specific employees, even though in some situations a union member might work on a regular basis for a specific employer. Each of the claimants who testified on this point agreed that negotiation concerning returning to work after the lockout would come through the Union, and not to them directly from the Council or individual employees. On the basis of the foregoing, unlike our dissenting col- league, we agree with the Administrative Law Judge's finding that given the nature of this industry, and the circumstances of this case, the Union was the employees' agent for receiving the reinstatement of- fer and it was sufficient for the Respondent's to have contacted the responsible representative of the Union to advise that the lockout was over and that they would accept employees back 4 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified herein at footnote 2, and hereby orders that the Re- spondent's, Bagel Bakers Council of Greater New York and its Employer-Members (listed in the Ad- ministrative Law Judge's recommended Order), their officers, agents, successors, and assigns, shall take 4 There is evidence that the end of the lockout did not result in as many employees being returned to work as had worked previously The Adminis- trative Law Judge found, however, that there was a fundamental change in the bagel industry beginning in 1966 which did have a substantial effect on the amount of work available at each of the bakeries in 1967 The Respon- dent's lost most of their wholesale trade Sales in 1967 were primarily retail and as a result there was much less work available 226 NLRB No. 121 BAGEL BAKERS COUNCIL OF NEW YORK the action set forth in the said recommended Order, as so modified. MEMBER JENKINS, dissenting in part: The finding of the majority that Respondent's, by their telegram to the Union on February 1, 1968, of- fered full and complete reinstatement to the locked- out discriminatees , thereby tolling the backpay peri- od, is supported by neither the law nor the facts. Re- spondent's should be liable for backpay until October 1, 1968, when the parties entered into a new collective-bargaining agreement. In the underlying case, the Board found, inter alia, that by locking out employee-members of the Union, Respondent Council and its employer-members vio- lated Section 8(a)(3) and (1) of the Act. The Board therefore ordered the Respondent's to offer full and complete reinstatement to each union member locked out, and also ordered the usual make-whole remedy ,terminating with the date of reinstatement. On February 1, 1968, Respondent Council sent a telegram to the Union. The telegram stated in effect that Respondent Employers were prepared to rein- state discharged employees whose employment was available. The majority finds that this telegram con- stituted a sufficient reinstatement offer , and I em- phatically disagree . In the first place, Respondents' offer is insufficient in that they did not make the offer directly to the discriminatees , but rather through the Union. Normally Respondents procured individuals through the Union and-not by direct con- tact. However, in the situation herein, where Respon- dents had committed serious unfair labor practices and the names of the discriminatees were known to Respondents, no valid reason has been presented why the individuals involved should not have been directly offered reinstatement to remedy those unfair labor practices. Furthermore, the telegram specifies that there were approximately only 14 openings whereas 45 employ- ees are named in the backpay specifications. Thus, even assuming arguendo that it was sufficient to com- municate the offer only to the Union, it is clear that, at best, less than one-third of the discriminatees may have been offered reinstatement . Such an offer surely does not comply with the Board's Order requiring Respondents to reinstate all the discriminatees. Moreover, the improbability of Respondents' pur- ported offer is manifested by their contention that the various Employers did not have as much work available as before the lockout. The Respondents made no attempt to place individuals on a preferen- tial hiring list. Further, 'the recoi d , reveals that, in many of the shops, owners and family members who had not performed the work of making and baking bagels prior to the lockout - were performing such 623 work during the lockout and after its purported end. Any claim that they may properly displace the dis- criminatees is obviously without merit. I am puzzled by the failure of the majority to rec- ognize the above considerations. In my view, the ma- jority has failed to implement the remedy which the Board has fashioned. The discriminatees are not made whole for losses they suffered because of Re- spondents' unlawful conduct, and I am compelled to dissent. SUPPLEMENTAL DECISION JAMES L. ROSE, Administrative Law Judge: This is a backpay proceeding which was heard before me at Brook- lyn, New York, on various dates from July 19 through Au- gust 11, 1976. Upon the record as a whole, including my observations of the witnesses and briefs and arguments of counsel, I hereby make the following: FINDINGS OF FACT 1. PROCEDURAL HISTORY The Bagel Bakers Council of Greater New York and its various employer-members were charged with having com- nutted unfair labor practices principally by locking out their employees on or about February 1, 1967. The matter was heard before Trial Examiner Joseph I. Nachman, who on March 28, 1968, rendered his Decision, finding, among other things, that in fact the Respondents had engaged in violations of Section 8(a)(3) by locking out their employees on February 1, -1967. This decision was affirmed by the Board on February 19, 1969. Bagel Bakers Council of Greater New York and Its Employer-Members, 174 NLRB 622 (1969). The Decision and Order of the Board was en- forced by the Second Circuit on November 20, 1970. N.L.R.B. v. Bagel Bakers Council of Greater New York and Its Employer-Members, 434 F.2d 884, cert. denied 402 U.S. 908 (1971). Additional litigation involving this matter includes an injunction proceeding under Section 100) of the Act wherein on January 18, 1968, District Judge Rosling grant- ed the Regional Director's petition and entered an order putting the parties back to the status quo pending a deter- mination of the unfair labor practices by the Board. Samu- el M. Kaynard v. Bagel Bakers Council, 67-c-776 (unreport- ed). Decision on a subsequent joinder motion is reported at 68 LRRM 2140, 57 LC ¶ 12,499 (D.C.N.Y., 1968). A further decision in this matter by Judge Rosling denying the peti- tion for a contempt citation is reported at 70 LRRM 2581, 57 LC ¶12,571 (D.C.N.Y., 1968). Finally, in Silverman v. N.L.R.B., 92 LRRM 2919, 78 LC ¶ 11,472 (C.A. 2, 1976), the circuit court granted a petition for mandamus, directing the Board to determine the back- pay award within -60 days from that decision. Accordingly, on June 24, 1968, the Regional Director for Region 29 is- sued a backpay specification and notice of hearing which, along with the Respondents' answer, frame the issues to be decided herein. 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. FACTUAL BACKGROUND many different employers in the industry. In 1936, Isadore Glass organized the Bagel Bakers Coun- cil for the purpose of dealing with the Union. According to Glass' testimony, during the early l960's he sold his bakery and became a full-time advisor to the Council. At that time, there were 36 members of a total of approximately 45 bagel bakeries in the Greater New York City area. In the mid 1960's, the industry began undergoing a fun- damental change. Where the invention of the rotary oven had allowed the `bakeries to move from their back street and basement environments tc,storefronts, the invention of a bagel-making machine and the influx of frozen bagels had a substantial impact on the wholesale trade of these bakeries. Even after the rotary oven in effect opened retail trade, a substantial majority- of each bakery's daily busi- ness was wholesale, either directly to delicatessens, grocery stores,-or the like or through jobbers who in turn would deliver the bagels to the retail outlets. The retail trade dur- ing the early 1,960's for most of the Council members was insignificant. However, with the influx of the machine-made and fro- zen bagels, particularly into the larger grocery chains, these employers discovered that they were having a difficult time competing. Thus, the testimony is that in 1966, for in- stance, most of the Council members were charging in the range of 50 cents per dozen for wholesale bagels, but were advised that the machine bagels were wholesaling for in the range of 30 cents per dozen. Whatever the precise, figures are with regard to the machine bagels, there is no question but that bagels made by machine began to come into the New York market in significant enough quantities that each of the Council members began losing substantial amounts of wholesale business. Thus, the nature of the, bagel baking business changed radically from one of being strictly bakeries to being baker- ies inconnection with other food-related endeavors such as delicatessens, grocery stores, or restaurants. And it is now the case that all of the employers here', while still maintain- ing their bakeries and still baking bagels, run their bakeries in connection with groceries or cafes. Further, as the bagel industry changed from being strict- ly wholesale bakeries to retail outlets for bagels, as well as other food items, the number of bakeries in New York increased substantially from 45 or so in the mid-1960's to something in the range of 200 now. These circumstances are at the core of the basic dispute the Council had with the Union in 1966-67 and which ulti- mately lead to the unfair labor practices herein. Specifical- ly, in negotiations for a new contract, to replace the one which was to-expire on January 31, 1967, the Respondents asked for economic relief. Briefly the Respondents wanted the Union to take a reduction in pay, and eliminate or re- duce the guarantee, as well as reduce or eliminate other fringe benefits. (Most of these goals were in fact agreed to by the Union for non-Council members during the lockout and for the Council in October 1968). In connection with their bargaining posture, which was found to be an unfair labor practice in violation of Section 8(a)(5), the Respondents decided to lockout all of their em- ployees beginning February 1, 1967. Thus, from and after February 1, 1967, the Respondents refused' to allow mem- While the underlying factual situation is set forth in de- tail in the earlier Decision, a brief summary here is in or- der. It is a monumental understatement to note that bagels are popular food items in the New York area. The taste for bagels as well as the art of making them immigrated from Middle Europe in the late 19th and early 20th centuries. The method of making and baking bagels did not change substantially until the early 1960's and even today, in many bagel bakeries, the bagels are handcrafted. Thus, in the early years of the industry in New York City, the bagel bakeries were located in the basements of apartment houses or other buildings where there was ac- cess to large furnaces which were converted' into ovens. During that period, the traditional method of baking ba- gels was to have a basic crew of four. Two individuals would mix the dough and form the bagels, and one would bake them. The fourth was a kettleman, or helper, whose responsibility it was to boil the bagels in water and do cleanup chores. With the invention of the rotating oven, in the early 1960's, bagel bakeries were able to move to storefront loca- tions because these ovens were moveable, whereas the ear- lier brick ovens were not. This had the effect of changing the industry from a totally wholesale business to some re- tail. Still, however, the basic method of baking the bagels was the same, requiring the crew of three bakers and one helper as the basic work force. Also standard was the method by which the bakers were compensated. This was on a piece work basis whereby the baker, or foreman, received 29 cents per box (under the 1965-66 contract) and the makers each received 26 cents per box. The kettleman was on an hourly rate which, ac- cording to the testimony, figured out to be in the range of 14 cents per box. There are 56 bagels in a box and, under the contract, each baker was guaranteed a minimum of 100 boxes per day. Thus, for the standard crew the bakery guaranteed 300 boxes of work per day. If a crew was called for and was unable to produce that many, or the bakery did not want that much, they would nevertheless be paid for their 100 boxes. Also traditional was the way in;which bakers were em- ployed. A bakery owner would call the Union and tell the Union's business agent how many boxes of bagels would be required for a particular day. The Union would then send the appropriate number of individuals. It happened that, for the most part, the employers' requirements were generally consistent and generally they used the same peo- ple week after week. Nevertheless, since the requirements of any given bakery varied from day to day and week to week, it happened that most members of the Union would work for more than 1 bakery each week and during the year might work for as many as 15 different bakeries, on a sporadic and more or less ad hoc basis. The point is that the bagel bakers were sent to their jobs out of the union hall, it was the Union to which employers looked for people, and it was the Union which controlled to which job a given individual would go. And this was true whether one was essentially a steady employee of one bakery, or worked for BAGEL BAKERS COUNCIL OF NEW YORK hers of the Union to work in their shops. Such as was performed throughout the backpay period was done by owners of the various bakeries and nonunion employees. Prior to the lockout, the owners did not do any of the craft work. Iii. THE BACKPAY SPECIFICATION In the backpay specification, it is contended that the backpay period runs from February 1, 1967, the date of the lockout to October 1, 1968, when a new collective-bargain- ing agreement between the Respondents and the Union became effective. It is also alleged that backpay liability as to certain of the Respondents terminated prior to October 1, 1968.1 A. Loss of Earnings For purposes of backpay, it is assumed that, but for the unfair labor- practices, each of the discriminatees would likely have earned the same wages in 1967 as he would have earned in 1966. It is also assumed that each discrimi- natee would have earned the same amounts from each of the various employers for whom he worked in 1966 in the same ratio. If, for instance, an employee earned half of his 1966 wages from one Council Member and the other half from several non-Council members, then, absent the unfair labor practices, it is assumed he would have earned half of his wages from that particular Council member and the other half from non-Council members during the backpay period. The backpay period then is divided into two sec- tions-1967 and the first 9 months of 1968. To calculate the 1967 net backpay for each discriminatee, his particular interim earnings in 1967 are subtracted from his 1966 gross earnings. Similarly, to arrive, at the net backpay in 1968, each discriminatee's 1968 -interim earnings are subtracted from his 1966 earnings and then multiplied by three- fourths. Having arrived at the results for each section of the backpay period, the amount due from each Respon- dent is allocated according to the percentage that particu- lar Respondent contributed to the employee's total earn- ings in 1966.- Thus,' if 'a claimant' s net backpay, for instance, was $5,000 and that claimant earned half of his 1966 earnings from one Council member, then that Coun- cil member's liability to that claimant would be $2,500.2 'As to Flatlands Bagel Bakery, Inc, liability terminated on June 15, 1967, pursuant to the Decision of the Trial Examiner. The liability of Culver Bagel Baker, terminated on June 21, 1967, pursuant to the Order of the Board. 2 It is noted that in framing the backpay specification the Regional Direc- tor determined to calculate the backpay on yearly rather than quarterly periods because of the particular 'nature of this industry, namely, that em- ployees moved from one employer to another, not all of the employees in the industry were involved in the unfair labor practices, and the industry is somewhat seasonal. Thus, to use all four quarters as the base year would appropriately reflect seasonal ajustments While this does not strictly adhere to the formula in F. W Woolworth Company, 90 NLRB 289 (1950), such seems reasonable under the special facts of this case And the policy consid- erations prompting the Woolworth determination to calculate backpay on a quarterly basis are not present here. The fundamental concern in Woolworth involved, protracted periods of discrimination, and the realization that once a discnmmatee finally found other employment, if it was at a higher wage, ultimately his interim earnings would exceed the total backpay. Thus, it 625 B. Holiday and Vacation Pay Early in the hearing it developed that the discriimnatees also received a fringe benefit in the form of holiday and vacation pay during the base year which was not reflected in their gross backpay. Thus, counsel for the General Counsel moved to file an amendment to the backpay spec- ification in order to allege vacation and holiday pay as an additional item to be included as lost earnings. During 1966, each employer paid into the vacation and holiday trust fund an amount equal to 8-1/2 cents per box. This money was then distributed equally among the bakers with the kettlemen receiving a somewhat lesser amount. Thus, in 1966 each of the bakers received $1,239.44 in va- cation and holiday pay. Each baker also received approxi- mately $224 in 1967 for holiday and vacation pay accumu- lated to the time of the lockout. Following the lockout, the employers in the industry still using bakers changed the method of compensating for va- cation and holiday pay to a straight $3.50 per day for each day an employee worked. This amount is reflected as earn- ings and is included in each of the claimant' s interim earn- ings from non-Council members in 1967 and 1968. The General Counsel contends that the total amount of $1,239.44 should be allocated, on a pro rata basis, by each of the Respondents for each discriminatee. In the alterna- tive it is contended that holiday and vacation losses should be calculated as a proportion of - $1,240 as to each claimant's 1966 earnings from Council members. W. THE BURDEN OF PROOF In the original answer to the backpay specification, the Respondents, in addition to a general denial, enumerated 51 separate affirmative defenses, many of which are con- ceptually overlapping. In the answer to the amended back- pay specification relating to holiday and vacation pay, the Respondents set forth 14 separate affirmative defenses. The Respondents' defenses will be treated herein according to subject matter. It should first be noted that the burden of proof on most of the items raised during the course of this hearing is on the Respondents. Thus: . .. in a backpay proceeding the burden is upon the General Counsel to show the gross amounts of back pay due. When that has been done, however, the bur- would be to a respondent 's advantage not to offer reinstatement and thus toll backpay Such considerations are not present here. The backpay period lasted just 1 year. Most employees had earnings throughout, but such as would be credited as interim earnings cannot , with certainty, be allocated to a particular quarter Finally, the data available, both to calculate gross backpay as well as interim earnings, are not in forms to use a quarterly method , with any expectation that such would be more accurate. From the nature of this case, and the evidence presented, I do not believe that the claimants will be penalized nor the Respondents rewarded by computing the losses on a year- ly basis However, I do not believe it reasonable to include as expectant earnings, and therefore gross loss, 1966 earnings from other, than Council members Under the General Counsel's theory, the Respondents would be liable even for a claimant's lost non-Council earnings I therefore will find the gross loss to be only the 1966 Council earnings See "Formula and Remedy" section, infra. 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD den is upon the employer to establish facts which would negative the existence of liability to a given em- ployee or which would mitigate that liability [N.L.R.B. v. Brown & Root, Inc., et al, 311 F.2d 447, 454 (C.A. 8, 1963).] Further, as the Board recently said: .. . the backpay claimant should receive the benefit of any doubt rather than the Respondent: the wrong- doer responsible for the existence of any uncertainty and against whom any uncertainty must be resolved [Footnote omitted; Southern Household Products Com- pany, Inc., 203 NLRB 881 (1973).] Finally, recognizing "the impossibility of exactitude," N.L.R.B. v. Rice Lake Creamery Co., 365 F.2d 888 (C.A.D.C., 1966), in devising the backpay formula, an ap- proximation of what would have been earned during the backpay period is permissible. Such is obviously applicable to this situation, given the nature of the industry, and the lapse of time between the backpay period and the current proceeding which necessarily has had the effect of limiting the evidence available. In short, having presented a formula reasonably calcu- lated closely to approximate the loss of earnings suffered by each of these claimants as a result of the Respondent's unfair labor practices, the burden is on the Respondents to show that for any given claimant no backpay is due or the amount of backpay should, for some reason, be mitigated. V. RESPONDENTS' DEFENSES AND CONCLUSIONS A. The Backpay Period The Respondents contend that the backpay period should toll on or about February 1, 1968, because pursuant to an order of Judge Rosling in the 10(1) proceeding, supra, the Respondents in fact offered full and complete rein- statement to the locked-out employees. On this point generally, counsel for the General Counsel contends that the Respondents did not actually contact the individual discriminatees. Accordingly, the backpay liabili- ty should not be tolled until October 1, 1968, when the parties entered into a new collective-bargaining agreement. In agreement with the Respondents, I conclude that the backpay period should toll on February 1, 1968, irrespec- tive of the fact that the companies did not make specific offers of reinstatement to specific individuals. At the time material in this industry, it was more com- mon than not for an employer to be assigned employees by the Union. It was not common for an employer to call an individual union member for work. Indeed, this was not even permissible under the contract. Nor, as a matter of fact in practice, did a specific employer call specific em- ployees, even though in some situations an employer-mem- ber of the Union might work on a regular basis for a specif- ic employer. Nevertheless, given the nature of this industry and this factual situation, I am persuaded that it was suffi- cient for the Respondents to have contacted the responsi- ble representative of the Union to advise that the lockout was over and that they would accept employees back. The Luton was the employees' agent for purposes of receiving the reinstatement offer. Lipman Bros. Inc., 164 NLRB 850 (1967). In fact, following Judge Rosling's order of January 18, 1968, the Union's then business agent sent a telegraph to Council members applying for reinstatement on behalf of the Union's locked-out members. He further said, " Please communicate with the undersigned to make aft necessary arrangements for the commencement of their ;i 1oyment On February 1, the Council sent a telegram to the Union to the effect that in compliance with Judge Rosling's order, the lockout was over and the employers would hire mem- bers of the Union. Further, each of the principals of the various Respon- dents testified, without contradiction, that after February 1 he personally contacted the Union' s business agent and requested the appropriate number of employees for his spe- cific production needs. And there is evidence that the Union did in fact send its members to some of the various employers. Each of the claimants who testified on this point agreed that notification concerning returning to work after the lockout would come from the Union, and not to them di- rectly from the Council or individual employers. Parenthetically, there is some testimony to the effect that the return to work in February was "a cooling off period," that a second lockout occurred in April 1968, or that the Respondents did not in fact comply with the order of Judge Rosling.3 The Respondents actually contacted the Union, which was their source of employees and some members of the Union (claimants here and others) in fact did go to work for various of the Respondents. I therefore conclude that the Respondents did everything reasonably necessary to end the lockout and rehire the claimants . Under the cir- cumstances of this industry, I conclude that the Respon- dents were not required to contact each individual member of the Union, or even those who had worked for a particu- lar Respondent in 1966, in order to toll the backpay period. The Respondents acted consistently with the industry prac- tice in an effort to bring the employees back to work. In fact, the Union knew this and, presumptively, so did the discrimmatees. The indication of some claimants that the return to work was preplanned to be of short duration, or that it was fol- lowed by a second lockout, is only that. There is no evi- dence that the recall in February should not be found an end to the lockout if, as I conclude, the offer of reinstate- ment at that time was total and unconditional. To the ex- tent that the Respondents did not have as much work available as before the lockout does not mean the backpay period should continue, as suggested by the General Coun- sel. 3 The Respondents contend that inasmuch as the Regional Director sought a citation in contempt of the January 18 order, which was denied, therefore the backpay period must be deemed to have tolled I do not be- lieve that Judge Roslmg's decision not to hold the Respondents in contempt is res judicata of the tolling issue Acts or omissions of the Respondents, which might not be considered contemptuous , might nevertheless not be considered sufficient performance to toll backpay liability BAGEL BAKERS COUNCIL OF NEW YORK 627 B. Exclusion of January 1967 The specification includes in the backpay period Janu- ary 1967, irrespective of the fact that the lockout did not begin until February 1, 1967. Counsel for the General Counsel argues that this is permissible inasmuch as earn- ings for the month of January 1967 are also included as interim earnings and thus the Respondents are not preju- diced. While this may or may not be the actual situation with regard to each of the discriminatees, it certainly need not be. It could be, for instance, that one or more of the discriminatees had no interim earnings, in fact, in January 1967. If such were the case, then the Respondents would be liable for backpay for some amount during a period when they had not committed the unfair labor practice. Accord- ingly, in agreement with the Respondents, I conclude that the month of January 1967 should be excluded from the backpay period, and I find that the backpay period runs from February 1, 1967, to February 1, 1968. C. Loss of Work Availability The principal contention of Respondents is: as a result of fundamental changes in the industry, supra, each em- ployer suffered a substantial amount of business loss which resulted in a diminution of the number of jobs available during the backpay period.' Through corporate 'records and other documentary evi- dence for each Respondent, it, was established that in 1967 there were substantially reduced bagel'sales. Since payroll is directly proportional to sales, reduced sales necessarily would reduce the amount of work available for members of the Union and specifically the discriminatees herein. At the outset, it should be noted that this defense is available in mitigation of damages if the Respondents are in fact able to carry their burden of proof. N.L.R.B. v. Mastro Plastics Corp., 354 F.2d 170 (C.A. 2, 1965). Of course the loss of work, and therefore loss of job availabili- ty, must be related to factors apart from the unfair labor practices which the Respondents were engaging in. On the basis of the record, I am satisfied that in fact there was a fundamental change in the bagel industry be- ginning in 1966 which did have a substantial effect on the work available in each of the Respondents' bakeries in 1967. The Respondents lost most of their wholesale trade. Their sales in 1967 were primarily retail and, as a result, there was much less work available. The Respondents therefore contend that the amount of backpay liability of each should be reduced by the same percentage as their loss of business in 1967 compared to 1966. Documentary evidence suggests that this loss ranged from 60 to 65 percent, Thus, the Respondents argue that their backpay liability 'should be reduced by that amount. In my view, however, the amount of business a given Respondent lost in 1967 is not material. What is material is how much business remained. The issue is how much work ° Although framed in various ways, this basic contention is the substance of the following paragraphs in Respondent's answer I, V, VI, VII, VIII, IX, XII, XVII, XXII, XXVII, XXXVIII, XXXIX, XXXL, XXXLL XXXLII, XXXLIII, XXXLV, XXXLVI, and XXXLVIII would reasonably have been available to the discriminatees but for the Respondents' unfair labor practices. It is the amount of bagel baking business that each Respondent in fact had in 1967 which is critical in determining their limits of liability. To determine the amount of bagel baking work available in 1967 requires calculating the bagel baking payroll and this in turn is dependent upon how many bagels each Re- spondent baked in 1967. This can be done, perhaps not with space-age exactitude but at least with reasonable closeness so as fairly to calculate the extent to which each Respondent's liability ought to be limited. Joseph Rubenstein, of Rubenstein Bagels, Inc., submit- ted into evidence production and payroll records for 1966. They show roughly that the bagel baking payroll was ap- proximately $1 per box. Thus, for the week ending January 14, the payroll was $3,505 and 3,510 boxes were produced (a payroll-per-box ratio of $.99). In the week ending Au- gust 12 there were 2,058 boxes produced with the payroll of $2,101 (a payroll-per-box ratio of $1.02). And in the week ending December 16, there were 1,407 boxes produced with a payroll of $1,358 (a payroll-per-box ratio of $.96). In addition, Louis Madorsky, of Bageltown, Inc., testi- fied that in 1966 the basic bagel baking crew consisted of two makers, one baker, and one kettleman whose total wages for 100 boxes came to approximately $100. Finally, the corporate income tax return of Tri-Boro Bakery for the fiscal year ending January 31, 1967, shows sales of $415,954 and bakers' wages of $96,370. Dividing the sales by the bakers' wages (415,954/96,370 = 4.32) and dividing that result by 56, the number of bagels in a box, establishes that Tn-Boro was charging $.07 per bagel. This retail charge for a bagel conforms to the memory of those employers who testified. These items of evidence are mutually reinforcing, each independently establishing the ratio of sales to payroll. I therefore conclude that a reasonable way to calculate the amount of the bagel baking payroll available at each Re- spondent bakery during the backpay period would be: Total bagel sales 1967/$.07 X 56 = boxes sold Boxes sold X $1 = payroll Where $.07 = retail price per bagel 56 = number of bagels per box It is noted that all of the employers who testified said that in fact they did bake bagels in 1967 and that the work was performed by either themselves or the members of their families. The amount of bagel,payroll thus is not ac- curately reflected in their corporate tax returns or other records, inasmuch as these individuals, who in all cases were officers of their respective companies, received sala- ries as such, as distinguished from any wages which might have been paid for production work. In short, the employ- ers' testimony establishes that more bagel production oc- curred in 1967 than is reflected in their payroll records. Where the records submitted are for fiscal years differ- ent from the period February 1, 1967, to February 1, 1968, I have taken the closest fiscal year compatible with the backpay year. While this may bias the result somewhat, the error, if any, should not be too great and,in any event this is the best that can be done with the data available. The 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD assumption is that each Respondent's business between February 1, 1967, and February 1, 1968, would be essen- tially the same during any proximate 12-month period. For Tri-Boro Bagel Co., Inc., for instance, the formula is applied as follows:Year ending January 31, 1968, sales $2,028,642; $2,028,642 = $3.92 = 58,327 boxes = $58,327 payroll. Thus the limit of Tri-Boro liability would be $58,327. The evidence is, and I find, that none of Respondents' pro- duction during the period was performed by union mem- bers. But absent the unfair labor practice, at least this amount of work would have been available to the locked- out employees. The liability limits for the Respondents are set forth in Appendix 47. Where, as in the case of Pop's Bagel Bakery, Inc., as successor to D & H Bagel Bakery, the limit is less than the backpay found due, the amount of each claimant's entitlement is prorated accordingly. D. Overtime Prohibition The Respondents further argue that inasmuch as the contract in existence in 1966 prohibited employees from working overtime and inasmuch as this provision was in fact enforced, in no event could the'backpay due each em- ployee exceed $113 per week-the guaranteed minimum times four. In essence, the Respondents argue that to allow a discriminatee to recover more than this amount would be tantamount to rewriting the contract, by allowing the claimants to recover for overtime which the contract pro- hibited. This defense is without merit. It is true that the contract does have a limitation of overtime provision, and it does appear that on some occasions the Union did enforce this provision in order to spread out the available work to its members. It is also quite clear from the totality of the rec- ord that most of the employees in fact work more than the minimum on each day that they were employed. The over- time clause was not a device to limit a Respondent's pay- roll. Rather it was designed to protect employees who wanted to limit their workday to 100 boxes, and also to protect employees generally so that in slack periods the work available in the industry would be spread around. These factors, particularly including the fact that during the base period employees did work "overtime," lead to the conclusion that, but for the Respondent's unfair labor practices, the discriminatees could have expected to have worked the same amount in 1967 irrespective of the con- tract provision. The test in determining the amount of backpay owing is how much the discriminatee might rea- sonably have expected to earn but for the employer's un- fair labor practices. To the extent any of a claimant's back- pay may include "overtime," such is nevertheless not diminished. E. The Basic Assumption The Respondents also contend that the basic assumption of the backpay specification-that absent the unfair labor practices the claimants would have earned the same in 1967 as they did in 1966-is erroneous.5 As indicated 6 Affirmative defenses pars X, XV above, this assumption appears reasonable. The Respon- dents brought forth no evidence of probative value to sug- gest that the assumption is not reasonable, other than that submitted for their basic economic defense. Inasmuch as I have concluded that the Respondents' liability will be lim- ited only to the amount of bagel payroll which actually existed in 1967, so much of the Respondents' defense as is based upon this factor is affirmed. So much of the Respondents' defense that the assump- tion is generally erroneous is rejected as not having been sustained by competent probative evidence. F. Loss of Business The Respondents also contend that, in addition to the loss of work availability, each employer was in a sufficient- ly disadvantageous economic condition so that ,there was little work available for the claimants during the backpay period.' Again, to the extent that this affirmative defense is addressed to the question of reduced sales and therefore work availability , such has been considered above. To the extent that the Respondents meant to establish a separate defense, there is no competent probative evidence to sus- tain it. G. The Base Year Calculations In paragraph XVIII of the answer, the Respondent's claim that the calculation of each claimant's 1966 gross earnings as well as his interim earnings are not based upon reliable or best evidence. While approximation had to suf- fice in some cases,- given that this hearing was conducted some 10 years after the base period, it is expected that the best evidence would not be available in every case. I am nevertheless satisfied that on balance the calculation of each discriminatees' gross earnings in 1966 as well as his subsequent interim earnings are as accurate as can be rea- sonably expected. Further, the Respondents brought forth no specific evidence of inaccuracies . On the other hand, in those few cases where data as to a given claimant was shown during testimony to have been inaccurate, the calcu- lations have been corrected and the backpay due reflects the corrected data. H. The Discrimmatees Would Not Have Worked for the Respondents The Respondents argue that because of the change in the economic condition of the industry generally, and of the Respondents in particular, resulting in a reduced amount of work available, even had there had been no lockout the claimants would not have been willing to work for any of the Respondents. Accordingly, they should not be entitled to backpay. At best this is pure speculation and cannot be accepted. The benefit of any doubt on this, as well as other issues, must be resolved in favor of the claimants. Accept- ing the facts in the light most favorable to the Respondents still leaves a doubt with regard to whether or not the claim- 5Affirmative defenses pars III , IV, XXV, XXVI, XXXV, LI. BAGEL BAKERS COUNCIL OF NEW YORK 629 ants would have worked had they not been locked out. This defense must be rejected. 1. The Claimants did not Want To Work and Refused To Work Similarly, the Respondents' defense that the discrimina- tees did not want to work (pars. XVI, XVII, and XXI) is speculative and is rejected as is the Respondents' defense that the discrimmatees refused offers of employment (pars. XXIV and XXX). There is no evidence of a specific Re- spondent offering work to any specific claimant which was refused. Along this line, the Respondents also argue that the claimants did not make themselves available (pars. XVIII and L). For the same reasons as are outlined above and in the previous section, this defense is rejected. J. The Union's Referral System The Respondents contend in paragraph XIX that the nature of the Union's referral system would have limited the work each claimant would have been assigned in 1967. Hence to that extent the backpay of each claimant ought to be reduced. This again is a speculative argument which has no real basis in probative evidence and upon which the Respondents have not sustained their burden of proof. K. Seniority The Respondents argue that somehow the seniority of the various claimants would have affected which one got work, thereby reducing the amount of backpay owing (par. XX). The Respondents did not explain their theory in this regard, nor offer evidence in support. This defense will be rejected. L. Interim Earnings It is further contended that each of the discriminatees had more interim earnings than were credited in the spec- ification (pars. XXIII and XXIV). It should be noted that pursuant to the Second Circuit decision in Mastro Plastics, supra, in fact counsel for the General Counsel had avail- able for examination all of the discrimmatees except those who by agreement were not required to testify. In some cases, as a result of examination, it was concluded that additional interim earnings should be credited and, to the extent such is the case, the backpay calculations as to those individuals have been changed. In general, however, there is no evidence running to all of the claimants that the interim earnings admitted to by counsel for the General Counsel are not an accurate reflec- tion of each claimant's actual earnings during the backpay period. nesses, thereby took themselves from the available labor pool. From the time they started their own businesses, they should be considered not to have been available for work and the backpay period as to them should be tolled accord- ingly. Generally, when one makes himself unavailable for work his backpay is tolled. But I connot conclude such was the situation here. First, I do not believe that the discriminatees should be penalized for doing what they were required by law to do; namely, mitigate their losses. Since work was unavailable to the discriminatees from the Council members, and pre- sumptively not enough for all was available from non- Council members, to remain in this industry the only alter- native for the discrimmatees was to start their own baker- ies. But they did not thereby make themselves unavailable for work for Council members because of the nature of the industry. They could very easily have worked in their own shops and still have been available to work with the Coun- cil members on the periodic basis which most of their work was done. Finally, as the Board said in Heinrich Motors, Inc., 166 NLRB 783, 785 (1967): "[S]elf-employment is not the equivalent of a willful loss of earnings [e.g., withdrawal from the labor market] but is to be treated as other interim employment." Accordingly, I reject the Respondents' de- fense that when a given claimant opened his own bakery during the backpay period, he thereby made himself un- available for work and should be penalized. Of course, such earnings as these claimants had in self-employment are credited as interim earnings. N. Unavailability is Result of Interim Jobs Similarly, the Respondents argue that because the dis- criminatees had earnings through interim jobs both in and out of the industry they thereby waived their entitle- ment to backpay (par. XXVIII). This argument, as with the self-employment defense, is rejected. It is unreasonable to penalize an individual for doing that which the law re- quires him to do. By attempting to mitigate damages, a claimant does not waive his entitlement to recover his loss- es. 0. The Claimants Did Not Mitigate Damages In paragraph XXII, the Respondents raise precisely the converse argument. That is, the Respondents contend that the claimants should be denied backpay because they did not attempt to mitigate damages by getting other jobs. There is no evidence that any claimant did not attempt to find work. While this defense has legal merit, the Respon- dents nevertheless have the burden of establishing it by a preponderance of the evidence which I conclude, they have not done."In fact, each claimant is shown to have had some interim earnings. Accordingly, this defense will be rejected. M. Self-Employed Claimants Following the lockout a number of claimants took up the business of bagel baking. The Respondents contend that these discriminatees, once they started their own busi- P. Reduced Piece Rate The new 1967 contract called for a reduction of the baker's piece rate from $.28 to $.26 per box. Thus, argue 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Respondents, any backpay liability should be reduced by 7 percent,-the amount of the rate reduction. In effect, the-Respondents are asking for a conclusion-that, absent their unfair labor practices, the Union would immediately have agreed to a new contract with the lower rates. Such.a - conclusion is not warranted. Even though as a result of collective bargaining the rate structure was changed, as were other economic benefits, such does not mean that the Respondents have sustained their burden of proving the backpay assumption to be erroneous. Again, any doubt must be resolved in favor of the_ claimants. And here, at least, there is a doubt concerning whether and to what ex- tent the reduced rate would have affected the claimants' earnings in 1967. Accordingly, this defense is rejected. Q. Vacation and Holiday Pay The Respondents make a number of defenses with re- gard to the General Counsel's amended -specification to include vacation and holiday benefits. In addition to the basic theory of the calculations, which will be discussed below, the Respondents contend: that this item is^ barred by latches; that to amend the specification results is denial of due process; that no credit was given for the fact that non-Council members also contributed; that the formula was changed in 1967; that the computations are inaccu- rate; that the boxes of bagels produced were reduced (which is essentially the economic defense the Respondents contend for backpay generally); and that the backpay pe- riod was tolled. With regard to the matter of latches, I conclude that the General Counsel, on behalf of the claimants, is not barred from bringing forth this item. It is a legitimate item of loss. The specific theory upon which this defense is based is that this item of backpay was not told the Respondents until during the hearing. While such is unfortunate, never- theless it should not operate to deprive the claimants from recovering the total amount due them as the result of a discrimination against them, nor should it operate to allow the Respondents an economic benefit as a result of their unfair labor practices. Finally, the Respondents have cited no authority for their proposition in this respect. The Respondents claim lack of due process notice with regard to the amendment to the specification. It is noted that in fact, prior to the time that counsel for the General Counsel actually submitted the amendment on August 5, there had been more than 2 weeks of testimony concerning this particular issue. I conclude that the Respondents had ample notice of this particular issue to frame their defense. And, in fact, the Respondents-did meet this issue both by formal answer and by interrogation of the witnesses, both before and after the amendment was submitted. I conclude that the Respondents were'not prejudiced by the amend- ment, or by my denial of a continuance of the hearing. However, in agreement with Respondents, I conclude that the proposed method of computing the amount due each claimant is inaccurate. In brief, by the amendment it is sought to recover from Respondent the total amount of vacation and holiday pay each claimant received in 1966, regardless of how much employment that claimant had with a particular Respon- dent. No consideration is given to the fact that in 1966, for instance, some amount of the vacation and holiday pay which a claimant received was paid by non-Council mem- bers. Thus, the formula submitted is rejected in favor of the one set forth below (which is essentially counsel for the General Counsel's alternative). R. Specific Neptune-Brighton Defenses Neptune-Brighton Bagels, Inc., argues additionally that the Board lacks jurisdiction to enter a backpay order against it. Although Neptune-Brighton has been doing business since June 1967 and has been a member of the Bagel Bakers Council since that time, it was not made a party to this matter until served with the backpay specifica- tion in June 1976. Thus, it argues, not having been made a party to the underlying case, the Board has no jurisdiction to enter an order here. Neptune-Brighton further argues that it is not a successor to Neptune Bagel Bakers, Inc., and therefore would not be liable under the Board's Order as enforced by the Second Circuit, in any event. Both of these defenses are rejected. With regard to the question of jurisdiction, while it may have been better practice to have served Neptune-Brigh- ton, I cannot but conclude that as a member of the Bagel Bakers Council, prior to the hearing of the unfair labor practices herein, Neptune-Brighton had actual notice" of the proceeding. In fact its agent, the Council, was notified and did participate in making all the defenses available. The mere fact that Neptune-Brighton was not itself served with formal papers in this case does -not mean that the Board does not have jurisdiction over it with regard to remedying the unfair labor practice of its predecessor. With regard to the question of successorship, it is noted that the principal owner of Neptune-Brighton was in fact an employee of Neptune until the time of the lockout. At that time or shortly after, Neptune apparently ceased doing business. A few months later that employee, Donald Cha- kofsky, bought the business; namely, the equipment and "good will." He took a lease from the owner of Neptune and began operating the bakery doing the same work in the same building. Since Neptune-Brighton joined the Council and joined the lockout, it of course did not use the same employees as Neptune, except for the current owner. Nevertheless, it is reasonable to conclude that, but for the lockout, Neptune- Brighton would have gone to the same employee pool as Neptune did, namely the Union. And as a union shop and Council member, it reasonably would have hired generally the same employees, if not precisely the same individuals. In addition, Neptune-Brighton purchased Neptune's "good will" for $5,000 which certainly is an indication of a continuity of business enterprise. Neptune sold its trade name, the right to use its telephone number, and, impor- tantly, agreed not to compete with Neptune-Brighton with- in the Borough of Brooklyn for 10 years. Finally, Neptune-Brighton did_ join the Council, even though on notice that a labor dispute existed between the Council and, the Union. Chakofsky testified that he knew of the labor dispute but did not know of the "lockout." I discredit any inference sought to be advanced that he pur- BAGEL BAKERS COUNCIL OF NEW YORK 631 chased Neptune's business innocent of any knowledge that Neptune was involved in a labor dispute. Chakofsky, after all, was an employee of Neptune and a member of the Union. I therefore find that Neptune-Brighton was a suc- cessor to Neptune and is liable for its unremedied unfair labor practices. In addition, by joining the Council, Nep- tune-Brighton aligned itself with the Council's actions, in- cluding the unfair labor practices. United States Pape & Foundry Co. v. N.L.R.B„ 398 F.2d 544 (C.A. 5., 1968); Golden State Bottling Co., Inc. v. N.L.R.B., 414 U.S. 168 (1973). S. Neptune's Defenses Neptune, which is alleged in the backpay specification to be liable jointly and severally with Neptune-Brighton, claims that it is a defunct corporation and should be ex- cused from this action. While there is some evidence that it is defunct, and while I conclude that Neptune-Brighton is liable for the backpay amounts due herein, I cannot ab- solve Neptune from liability. It has already been adjudicat- ed liable for damages resulting from the unfair labor prac- tices. Whether it is now defunct and whether any judgment is -now collectable is, of course, a different matter, one which is not appropriate for decision in this forum. The matter of liability, however, and allocation of liability should stand. - T. Pop's Bagel Bakery Defense Pop's Bagel Bakery specifically argues that it did not merge with D & H Bagel Bakery, and therefore is not lia- ble for D & H's unfair labor practices. This allegation was fully adjudicated and it was found that "Pop's Bagel Bak- ery and D & H Bagel Bakery constitute a single integrated business enterprise which is responsible for remedying the unfair labor practices herein found." 174 NLRB at 632. Since the question of Pop's liability for the damages caused by the unfair labor practice at D & H has been adjudicat- ed, this defense must be rejected. U. Flatlands' Defense 7 Flatlands Bagel Bakery, Inc., argues that, inasmuch as the rate for a baker was reduced in 1967 following collec- tive bargaining from $.29 to $.26 per box, the amount of backpay owing the baker' herein should be reduced accord- ingly. Flatlands also argues that due to economic condi- tions in the industry the president of Flatlands who there- tofore had not worked as a baker received permission from the Union to do so. Therefore, the job of a baker was not available to the backpay claimants. Finally, Flatlands ar- gues with the other Respondents that the vacation and hol- iday pay formula changed in 1967 and therefore it has no liability for this factor. 7 Flatlands failed to file an answer and counsel for the General Counsel moved for judgment. I hereby deny the motion The case was at issue through the answer of the Council and even though Flatlands stands in a somewhat different position than other Council members, I do not believe the General Counsel or Charging Parties have been prejudiced. With regard to these defenses, suffice to note that what actually happened during the early months of 1967 while Flatlands was participating in a lockout and what might have happened but for Flatlands' unfair labor practices are two different matters. In this case any doubt which rises as a result of Flatlands' unfair labor practices must of course be resolved in favor of the discriminatees and I do so. There is no reason to believe -that, had Flatlands not been involved in the unfair labor practices, the rate for a baker would have changed any earlier than June 1967, when Flatlands ceased its lockout. The same is true with regard to the work availability. There is no particular rea- son to believe that Flatlands would not have used a baker between February and June had it not been involved in the unfair labor practice. Flatlands' liability, as that of the other Respondents, shall be limited based upon the formula set forth in-section V, C, above, taking into consideration the economic down- turn in the industry. Finally, Flatlands' argument concern- ing vacation and holiday pay is rejected for the same rea- sons as set forth above in section V, Q. VI. FORMULA AND REMEDY It is assumed that, but for the unfair labor practices, each claimant would have earned in the bagel industry the same in 1967 as he did in 1966 and in the same proportions fully the various employers. Thus, each claimant's loss of wages for 1967 would be his lost earnings from Council members, e.g., if a claimant had total earnings of $16,000, $8,000 of which was from Council members, then his loss would be $8,000 less any amount he actually received from Council members in 1967, and less any amount earned in January 1966. The amount of backpay due a claimant would be the specific obligation only of the employers he worked for in 1966, and that on a pro rata basis. Since static earnings are assumed, a claimant's January 1966 earnings from Council members equal his January 1967 earnings from Council members which in every case is the claimant's 1967 Coun- cil earnings. After January, the Council members did not employ the claimants.' Therefore: 1967 gross loss of wages = C - C' where C = 1966 earnings from Council members C' = 1967 earnings from Council members. From the 1967 gross, 1967 interim earnings must be sub- tracted. Since almost all claimants normally had earnings from non-Council members, the interim earnings would be those in excess of the norm. Thus, if a claimant's 1966 total was $16,000 and his non-Council earnings $8,000, his 1967 interim earnings would be only those earnings in excess of $8,000. Since the 1966 non-Council earnings are not con- sidered in calculating gross backpay, they must also not be considered in calculating interim earnings. An analogy here would be the discharged employee who had a second job. His earnings from the second job would not be consid- ered in determining either his gross backpay or interim earnings. The existence of the second job is just not rele- B Flatlands and Culver ended their lockout in June 1967 and their liability will be calculated accordingly 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vant to the issue of whether and- to what extent the dis- charge from another job has caused him damage. Further, the pattern in the industry was such that the claimants worked for different companies - with varying earnings in each year. Thus, the non-Council earnings will be taken in total rather than on an individual company basis in determining both the baseline non-Council earn- ings (1966) and the interim earnings in 1967 and 1968. Thus: I = N' - N Where: I = 1967 interim earnings N' = 1967 non-Council earnings N = 1966 non-Council earnings Net loss of wages 1967 = C - C' - I No special adjustment need by made in order to exclude January 1967. Since January was not in the backpay peri- od, it can be assumed to have been a normal -pre-unfair labor practice month. Thus, such non-Council earnings as exceeded those in 1966 must have been earned after the lockout began, e.g., after February 1. Similarly, the Council earnings in 1967 were earned in January. These earnings (C') are subtracted from the 1966 Council earnings (C) to give the gross loss after February 1. The 1968 loss is exclusive to the month of January. To determine what a claimant would have earned in January 1968, but for the lockout, we need only to look to January 1967-a prelockout month. It is assumed that each claim- ant would have earned in January 1968 from Council members what he in fact earned in January 1967 (C'). In- terim earnings for January 1968 again would be those non- Council earnings in excess of normal. Assuming January 1968 to be an average month, January earnings in 1968 would be: N2/9 where N2 = 1968 earnings, January through September. Normal January earnings from non-Council members would be: N/ 12 where N = 1966 noncouncil earnings. I' _ N2/9 - N/12 where I' is the January 1968 interim earnings, and January 1968 net loss = C' - I'. Note that the January 1967 Council earnings C' are sub- tracted from the 1966 Council earnings to arrive at gross loss for 1967 (February through December). This same amount is added in as the estimated gross loss for January 1968. Therefore, in computing the backpay due, the Janu- ary 1967 Council earnings can be ignored (to subtract it and then to add it gives a zero sum). For computation purposes the gross loss of wages for the entire backpay period, February 1, 1967, to February 1, 1968, is each claimant's 1966 earnings from Council members (C). Net loss of wages = C - C' - I + C' - I' or = C -I - I' or = C-(I+I') Calculating holiday and vacation pay is somewhat com- plicated by the fact that the formula changed in 1967. But, assuming the formula would not have' changed except through collective bargaining, which is in fact what hap- pened, it can be concluded that the vacation and holiday pay formula would have remained static throughout the backpay period. In 1966 each claimant received $1,240. In 1967 each claimant received $224 from the fund, which amount must be credited -as interim earnings. The loss, however, attributable to the Council members is, of course, not the full $1,240-$224, because in 1966 non- Council members contributed their aliquot portion. Since the -holiday and vacation contributions were on a produc- tion basis, as were earnings, it is reasonable to charge the Council members only for the loss proportionate to each claimant's earnings from Council members. Thus: 1967 lost H & W = 1,240 X C/T -224 9 Where C = 1966 Council earnings T = 1966 Total earnings Finally, the January 1968 lost holiday and vacation ben- efits would realistically be 1/12 of the 1966 benefits, again charging the loss of Council members proportionally. Thus: January 1968 loss H & W = 1/12 X C/T. Note that the holiday and vacation formula is not con- sistent with loss of wages formula. To be consistent, only a proportion of the $224 (C/T X 224) should be subtracted; and, since $1,240 represents a 12-month period, a separate figure for January 1968 should not be included. However, this is a legal determination more than a math- ematical exercise, and on this point logical consistency must yield. This issue was litigated on the premise that the $224 was interim earnings, all,of which should be deduct- ed. While the Respondents have the burden of proving in- terim earnings, certainly they can accept what- is tanta- mount to the General Counsel's admission that all the $224 should be treated as such. It would not be appropriate, at this stage of the proceeding, to credit less than the whole $224 against such losses of vacation and holiday benefits as are found. Since the $224 includes, at least, January 1967 payments by Council members, it follows that a propor- tionate loss for January 1968 should be added in. The computations are based on data from the backpay specification except where corrected by stipulations of the parties and/or testimony of the claimants. All calculations are rounded to the nearest dollar, and as some earnings of claimants are minimal (less than .5 percent of total Council earnings) such are not included as being de minimis. Upon the foregoing findings of fact, conclusions of law, the entire record in this case, and pursuant to the formula and remedy set forth above, I hereby issue the following recommended: ORDER 10 Respondents, Bagel Bakers Council of Greater New York and Its Employer-Members their officers, agents, successors, and assigns, shall pay to each person listed be- 9 In the case of kettlemen, the appropriate figures are 590 and 89. 10 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 10248 of the Rules and- Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes BAGEL BAKERS COUNCIL OF NEW YORK low, the estates of those deceased, or where indicated to the Regional Director for Region 29 to be held in escrow, the amounts set opposite their respective names. Interest is to be added at the rate of 6 percent per annum in accordance with the formula set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). There should be deducted from the amounts due each individual any tax withholding required by Federal and state law: Bagel Box, Inc. Joseph G. Fleischman (deceased) $ 38 Joseph Martinosky 2,336 Gerardo F. Russo 1,230 $3,604 Bagel Town, Inc. Marvin Blind $ 162 Lawrence Horowitz 9,790 Seymour Ostrofsky 384 Saul Sapadin 59 Jack Sugarman 1,226 $11,621 Benson Bagel Bakery, Inc. Ber Barth $ 294 William Brier 41 Julius Brooks 16 Murray Fertel 402 Rachmil Lederstein 14 Samuel Provder 1,508 Joseph Silverman 1,903 Jack Todaro 173 $4,351 Culver Bagel Bakery, Inc. William Breier $ 274 Julius Brooks 830 Murray Fertel 552 Rachmil Lederstein 919 Arnold Newkofsky 124 Gerardo F. Russo 1,595 Leon Spanier (deceased) 9 Jack Todaro 2,664 $26,944 Far Rockaway' Bagel Bakery, Inc. Samuel-Cutler $ 9,343 Edward Haimowitz 385 Sheldon Hepner 29 Leon Lifshutz 2,869 Seymour Ostrofsky 158 David Siegel 1,975 Jack Sugarman 245 $15,004 Flatlands Bagel Bakery, Inc. William Breier $ 246 Murray Fertel 84 Joseph G. Fleischman (deceased) 26 Leon Litshutz' 32 Morris Minton 1,645 Abraham Zaffos 1.008 $3,041 633 Golden Bagel Corp. Abraham Baron $ 645 Ber Barth 538 William Brier 335 Julius Brooks 156 Murray Fertel 84 Joseph G. Fleischman (deceased) 26 Rachmil Lederstein 99 Irving Levy 4,008 Arnold Newkofsky 7,647 Morris Schechter 4,633 Leon Spanier (deceased) 2,961 Jack Todaro 87 Jack Sugarman 22 $21,241 Island Park Nassau Bagel Bakery, Inc. Marvin Blind $1,484 James Goodrich 37 Leon Lifshutz 32 Jack Ostrofsky 12,160 Jack Sugarman 191 $17,143 Laurelton Bagel Bakery Ber Barth $ 244 Marvin Blind 180 Murray Boykin 949 William Brier 20 James Goodrich 37 Sheldon Hepner 29 Leon Lifshutz 597 Albert Rothstein 7,626 Saul Sapadin 386 Walter Schuettig 5,678 David Siegel 346 $16,092 Nelson Bagel Bakery, Inc. Isak Jakubowicz Gerardo F. Russo $43 9 $52 Neptune Bagel Bakers Inc. and Neptune -Brighton Ba- gels, Inc., jointly and severally Ber Barth $1,504 William Brier 81 Murray Fertel 418 Joseph G. Fleischman (deceased) 1,977 Israel Goldenberg 1,902 Seymour Ostrofsky 89 Jack Todaro 8.7 Saul Sapadin 10 $6,068 Rubinstein Bagel Inc. and Joseph Rubinstein, Morris Rubinstein, and Herman Reiter, d/b/a Rubinstein Ba- gels Ber Barth $56 Julius Brooks 24 Murray Fertel 50 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Joseph G. Fleischman (deceased) 68 APPENDIX 46 I k J k b i sa ow a u cz 1,619 Lionel Stone 4,188 1967 Sales of Respondents Hyman Ustin 1,077 $7 082 Bagel Box (no records offered) , Bagel Town 110,691 (7/1/66'to 6/30/67) Tri-Boro Bagel Co. Inc. 87,976 -(7/1/67 to 6/30/68) Abraham Baron $ 161 avg. 98,884 Marvin Blind 1,593 Benson Bagel Bakery 67,998 (1967) Murray Boykin 43 Culver Bagel Bakery 147,196 (1967) Ralph Brier 4,591 Far Rockaway Bagel 143,094 (4/1/66 to 3/31/67) Julius Brooks 15 Bakery 51,695 (4/1/67 to 3/31/68) Murray Fertel 59 avg. 97,395 Joseph G. Fleischman (deceased) 189 Flatlands Bagel Bakery (no records offered) James Goodrich 136 Golden Bagel Corp. 98,682 (9/1/66 to 8/31/67) Edward Haimowitz 2,847 Island Park Nassau 202,850 (6/1/66 to 5/31/67) Sheldon ' Hepner 3,132 Bagel Bakery Seymour Ostrofsky 59 Laurelton Bagel Bakery (no records offered) Saul Sapadin 386 Neptune-Brighton Bagels 49,953 (4 mos. in 1967 to David Siegel 74 9/31/67) Stanley Siegel 34 Nelson Bagel Bakery (no records offered) Emanuel Strugatch 1,790 Rubinstein Bagels 181,401 (2/1/67 to 1/31/68) Jack Sugarman 763 Tri-Boro Bagel Co. 228,642 (2/1/67 to 1/31/68) Jack Todaro 1,342 D & H Bagel Bakery 37,561 (11/1/66 to Israel Weiner 1,240 10/31/67) Pop's Bagel Bakery, Inc. $18,454 Pop's Bagel Bakery 104,537 r(i/1/67,to 12/31/67) Ber Barth $ 92 Marvin Blind 131 Murray Boykin 313 Ralph Breier 43 James Goodrich 5,946 Edward Haimowitz 616 APPENDIX 47 Sheldon Hepner 42 Leon Lifshutz 47 Limit to Backpay Liability of Each Respondent Seymour Ostrofsky 69 1967 Sales x $1/$.07 x 56 = Bagel payroll = Limit Gerardo F. Russo 22 of Liability Saul Sapadin 116 David Siegel 49 Limit of Total Stanley Siegel 5,559 1967 Backpay Backpay Jack Sugarman 273 Sales Liability Owed $13,318 Bagel Box * $ 3,604 el Baker Pop's Ba Inc as successor to D & H Ba- Bagel Town $98,884 $22,225 > 11,621 y, g . el Baker Inc (See A endix 48) Benson Bagel Bakery 67,998 17,346 > 4,351 g y, . pp Culver Bagel Bakery 147,196 37,550 > 6,944 Murray Boykin $4,092 Far Rockaway Murray Fertel 18 Bagel Bakery 97,395* 24,846 > 15,004 Joseph G. Fleischman (deceased) 18 'Flatlands Bagel Bakery 3,041 Eugene Moore Seymour Ostrofsky 1,324 127 Golden Bagel Corp. 98,682 Island Park Nassau 25,174 > 21,241 Samuel Provder 1,378 Bagel Bakery 202,850 51,747 > 17,143 Gerardo F. Russo I I Laurelton Bagel Bakery 16,092 Emanuel Strugatch 668 Nelson Bagel Bakery 52 Markus Weisz (escrow) 1,921 Neptune-Brighton Bagels 49,953 12,743 > 6,068 Jack Sugarman 27 -Rubinstein Bagels 181,401 46,276 > 7,082 Israel Weiner 11 Tri-Boro Bagel Co. 288,642- 73,633 > 18,454 $9,595 D & H Bagel Bakery 37,561- 9,595 < 17,135 Pop's Bagel Bakery 104,537 26,668 > 13,318 [Appendixes 1 through 45 (computations of individual backpay) omitted from publication.] ' Average BAGEL BAKERS COUNCIL OF NEW YORK APPENDIX 48 Adjustment of backpay due from Pop's Bagel Bakery, Inc., as successor to D & H Bagel Bakery, Inc., on the D & H Bagel Bakery, Inc., limit of liability. The liability is 56 percent of the backpay found due, thus each claimants' backpay will be adjusted accordingly: Murray Boykin $7,308 to $4,092 Murray Fertel 33 to 18 Joseph G. Fleischman (deceased) 32 to 18 Eugene Moore 2,365 to 1,324 Seymour Ostrotsky 227 to 127 Samuel Provder 2,460 to 1,378 Gerardo F. Russo 19 to 11 Emanuel Strugatch 1,193 to 668 Markus Weisz 3,430 to 1,921 Jack Sugarman 49 to 27 Israel Weiner 19 to 1-1 $9,595 635