Bagel Bakers Council

National Labor Relations Board - Board Decisions

Feb 19, 1969

174 N.L.R.B. 622 (N.L.R.B. 1969)

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.