555 F.2d 304 (2nd Cir. 1977), 867-869, Bagel Bakers Council of Greater New York v. N. L. R. B.

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Citation555 F.2d 304
Date23 March 1977
PartiesBAGEL BAKERS COUNCIL OF GREATER NEW YORK, Bagel Box, Inc., Bagel Town, Inc., Benson Bagel Bakery, Inc., Culver Bagel Bakery, Inc., Far Rockaway Bagel Bakery, Inc., Golden Bagel Bakery, Inc., Island Park Nassau Bagel Bakery, Inc., Nelson Bagel Bakery, Inc., Neptune Brighton Bagels, Inc., Rubinstein Bagels, Inc., Rubinstein Bagels, Inc., Triboro Bage
Docket Number867-869,76-4282 and 76-4283.,Dockets 76-4260

Page 304

555 F.2d 304 (2nd Cir. 1977)

BAGEL BAKERS COUNCIL OF GREATER NEW YORK, Bagel Box, Inc.,

Bagel Town, Inc., Benson Bagel Bakery, Inc., Culver Bagel

Bakery, Inc., Far Rockaway Bagel Bakery, Inc., Golden Bagel

Bakery, Inc., Island Park Nassau Bagel Bakery, Inc., Nelson

Bagel Bakery, Inc., Neptune Brighton Bagels, Inc.,

Rubinstein Bagels, Inc., Rubinstein Bagels, Inc., Triboro

Bagel Co. Inc., D & H Bagel Bakery, Inc., and Pop's Bagel

Bakery, Inc., Petitioners,

v.

NATIONAL LABOR RELATIONS BOARD, Respondent.

NATIONAL LABOR RELATIONS BOARD, Petitioner,

v.

FLATLANDS BAGEL BAKERY, INC., Laurelton Bagel Bakery, Golden

Bagel Corp., Neptune Bagel Bakers, Inc., and

Joseph Rubinstein, Morris Rubinstein,

and Herman Reiter, d/b/a

Rubinstein Bagels,

Respondents.

Nos. 867-869, Dockets 76-4260, 76-4282 and 76-4283.

United States Court of Appeals, Second Circuit

March 23, 1977

Argued March 23, 1977.

Decided .

Opinion May 6, 1977.

Myron W. Siskin, New York City (Stephan Axelrod, Philip J. Levine, New York City, of counsel), for petitioners.

Andrew F. Tranovich, N. L. R. B, Washington, D. C. (Aileen A. Armstrong, John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Washington, D. C., of counsel), for respondent.

Before ANDERSON and MESKILL, Circuit Judges, and MARKEY, Chief Judge, U. S. Court of Customs and Patent Appeals. [*]

PER CURIAM:

We hope this appeal is the final chapter of a labor dispute which dates back to 1967. The facts of the case are fully set out in a prior opinion of this Court, in which we enforced the National Labor Relations

Page 305

Board's ("Board") finding that the employers had illegally locked out their employees. NLRB v. Bagel Bakers Council, 434 F.2d 884 (2d Cir. 1970), cert. denied, 402 U.S. 908, 91 S.Ct. 1380, 28 L.Ed.2d 648 (1971). This appeal challenges the back pay award made by the Board. Although we enforced the order in open court, 1 we felt it would be appropriate to file a brief opinion to close the books on a case already reported.

The Council has made a broad attack on the back pay proceedings. It challenges the evidentiary basis for the Board's order; the particular method by which the amount of back pay was calculated; the refusal of the Administrative Law Judge to grant a continuance at one point in the proceedings; and the grant of interest on the award. These attacks must fail.

The scope of review in this case is extremely narrow. If we find that the Board's order is supported by substantial evidence, considered on the record as a whole, we must enforce it. After reviewing the record, we have concluded that each of the challenged findings is amply supported by the record. 2

The Council also contests the method by which the Board calculated the amount of back pay. The method chosen, which is characterized as a "modified projection of average earning formula," has previously received judicial approval. See NLRB v. Charley Toppino and Sons, Inc., 358 F.2d 94 (5th Cir. 1966). 3

In framing a remedy, the Board has wide discretion, subject to limited judicial scrutiny. We can reverse only if we find that the method chosen was so irrational as to amount to an abuse of discretion, Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 216, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964). This is not such a case.

A back pay award is only an approximation, necessitated by the employer's wrongful conduct. In any case, there may be several equally valid methods of computation, each yielding a somewhat different result. This is especially so when, as here, the Board deals with many small employers. The fact that the Board necessarily chose to proceed by one method rather than another hardly makes out a case of abuse of discretion. 4

The original back pay specification did not call for holiday and vacation pay. 5 During the hearing before the Administrative Law Judge, the specification was amended to cover this. The Council now claims that the Administrative Law Judge's refusal to grant a continuance at that point deprived it of due process of law.

The claim for holiday...

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27 practice notes
  • Douglas Autotech Corporation, (2011)
    • United States
    • November 18, 2011
    ...vacated 294 F.3d 186 (D.C. Cir. 2002), on remand to 341 NLRB 456 (2004); Bagel Bakers Council of New York, 226 NLRB 622, 622 (1976), enfd. 555 F.2d 304 (2d Cir. 1977); Daisy’s Original’s, Inc., 187 NLRB 251, 270 (1970); Oshkosh Ready-Mix Co., 179 NLRB 350, 358 (1969), enfd. 440 F.2d 562 (7t......
  • Laborers Local 135 (Bechtel Power Corp.), (1991)
    • United States
    • February 28, 1991
    ...NLRB 520 (1967) (emphasis added).In this regard, we note that Fibreboard Corp. v. NLRB, 379 U.S. 203 (1964);Bagel Bakers Council v. NLRB, 555 F.2d 304 (2d Cir. 1977); and NLRB v.Iron Workers Local 378, 532 F.2d 1241 (9th Cir. 1976), cited in part IV,Aof the judge’s decision, do not, contrar......
  • Weldun International, (2003)
    • United States
    • September 30, 2003
    ...formula that is reasonably designed to produce ap-proximations of the backpay due. Bagel Bakers Council of Greater New York v. NLRB, 555 F.2d 304 (2d Cir. 1977); NLRB v. Carpenters Local 180, 433 F.2d 934, 935 (9th Cir. 1970); see also NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 346 (1953)......
  • PAN AMERICAN GRAIN CO., INC., AND PAN AMERICAN GRAIN MANUFACTURING CO., INC., (2004)
    • United States
    • April 1, 2004
    ...Co., 319 NLRB 1253, 1278 (1995), enf. denied 115 F.3d 1045 (D.C. Cir. 1997); see also Bagel Bakers Council of Greater New York v. NLRB, 555 F.2d 304, 305 (2d Cir. 1977); NLRB v. Carpenters Local 180, 433 F.2d 934, 935 (9th Cir. 1970). Under such circumstances, the backpay claimant should re......
  • Request a trial to view additional results
27 cases
  • Douglas Autotech Corporation, (2011)
    • United States
    • November 18, 2011
    ...vacated 294 F.3d 186 (D.C. Cir. 2002), on remand to 341 NLRB 456 (2004); Bagel Bakers Council of New York, 226 NLRB 622, 622 (1976), enfd. 555 F.2d 304 (2d Cir. 1977); Daisy’s Original’s, Inc., 187 NLRB 251, 270 (1970); Oshkosh Ready-Mix Co., 179 NLRB 350, 358 (1969), enfd. 440 F.2d 562 (7t......
  • Laborers Local 135 (Bechtel Power Corp.), (1991)
    • United States
    • February 28, 1991
    ...NLRB 520 (1967) (emphasis added).In this regard, we note that Fibreboard Corp. v. NLRB, 379 U.S. 203 (1964);Bagel Bakers Council v. NLRB, 555 F.2d 304 (2d Cir. 1977); and NLRB v.Iron Workers Local 378, 532 F.2d 1241 (9th Cir. 1976), cited in part IV,Aof the judge’s decision, do not, contrar......
  • Weldun International, (2003)
    • United States
    • September 30, 2003
    ...formula that is reasonably designed to produce ap-proximations of the backpay due. Bagel Bakers Council of Greater New York v. NLRB, 555 F.2d 304 (2d Cir. 1977); NLRB v. Carpenters Local 180, 433 F.2d 934, 935 (9th Cir. 1970); see also NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 346 (1953)......
  • PAN AMERICAN GRAIN CO., INC., AND PAN AMERICAN GRAIN MANUFACTURING CO., INC., (2004)
    • United States
    • April 1, 2004
    ...Co., 319 NLRB 1253, 1278 (1995), enf. denied 115 F.3d 1045 (D.C. Cir. 1997); see also Bagel Bakers Council of Greater New York v. NLRB, 555 F.2d 304, 305 (2d Cir. 1977); NLRB v. Carpenters Local 180, 433 F.2d 934, 935 (9th Cir. 1970). Under such circumstances, the backpay claimant should re......
  • Request a trial to view additional results

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