Kudile Bros. Hasbrouck Heights Dairy

In the Matter of RUDOLPH AND' CHARLES KuDILE, CO -PARTNERS DOING BUSINESS UNDER THE NAME OF KUDILE BROS. HASBROUCk HEIGFITS DAIRY and MILK DRIVERS & DAIRY EMPLOYEES LOCAL UNION No. 680, A. F. of L. Case No. C-1660.-Decided November 206, 1940 Jurisdiction : dairy industry. Unfair Labor Practices Interference, Restraint, and Coercion: anti-union statements ; interrogation con- cerning nn ion. activities, threats to discharge employees joining union; grant- ing unrequested pay raise ; procuring new route drivers' agreements ; suggesting at employees' meeting 'formation of "company" union ; interference with selection of grievance committee ; refusing to allow authorized representatives be present at an employees' meeting; inducing employees to sign distorted statement concerning events at an employees' meeting Discrimination: discharges for union activities Remedial Orders : reinstatement and back pay. - Practice and Procedure : complaint amended by striking allegations of 8 (5) violation upon request, without objection, of union. Mr. Alba*B. Martin, for the Board. Mr. Albert S. Gross, of Hackensack, N. J., for the respondent. Mr. Lawrence TV. 111cGinley, of Hackensack, N. J., and Mr. Thomas T. Parsonnet, of Newark, N. J., for the Union. Mr. Ben Law, of counsel to the Board. - DECISION AND ORDER STATEDrENT OF THE CASE 11 Upon charges and amended charges duly filed by Milk Drivers & Dairy Employees Local Union #680, affiliated with the American Federation of Labor, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Second Region (New York City), issued its complaint, dated October 19, 1939, against Rudolph and Charles Kudile, co-partners doing business under the- name of Kudile Bros., Hasbrouck Heights Dairy, Hasbrouck Heights, New Jersey, herein.called the respondent, alleging that the respondent had engaged in and was engaging ,in 28 N. L. R. B., No. 20. 116 RUDOLPH AND CHARLES KUDILE 117 unfair labor practices affecting commerce within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein-called the Act. Copies of the complaint and accompanying notice of hearing were duly served upon the respondent and upon the Union. Concerning the unfair labor practices, the complaint, as amended at the opening of the hearing, alleged in substance : (1) that the re- spondent discharged Peter Plaskon and Herman Schroers on or about May 19, 1939, because they had joined and assisted the Union; (2) that on or about May 20, 1939, , and at all times thereafter, the re- spondent refused to bargain collectively with the Union as the ex- clusive bargaining representative of its employees in an appropriate bargaining unit; and (3) that the respondent, by the above acts,. and, from about May 1, 1937 , by warning employees to refrain from membership in the Union, by threatening them with discharge or other reprisals if'they became or remained, members thereof, and by maintaining surveillance over them and-the activities of the Union, interfered with, restrained , and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On or about October 27, 1939, the respondent filed its answer to the complaint denying, that it hid committed the unfair labor prac- tices alleged therein and specifically alleging that it is not engaged in commerce within the meaning of the Act and is not subject to the jurisdiction of the Board. Pursuant to notice, a hearing was held at Newark , New Jersey, from June 10 to 15, 1940, inclusive, before Peter F. Ward, the. Trial Examiner duly designated by the Board. The Board and the re- spondent were represented by counsel and the Union by its president. All parties participated in the hearing and were accorded full oppor- tunity to be heard, to examine and cross-examine witnesses and to introduce evidence bearing on the issues: During the course of the hearing, the 'Trial Examiner reserved decision on motions by the respondent to dismiss the complaint for lack of jurisdiction and to strike certain testimony . In his Intermediate Report, discussed below, the Trial Examiner denied these two motions. Also dur- ing the course of the hearing, the Trial Examiner granted a motion by the Board to conform the pleadings to the proof and made vari, ous rulings upon other motions and upon objections to the admis- sion of evidence. The Board has reviewed all of the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings, are hereby affirmed. After the close of the hearing a brief was submitted to the Trial Examiner by counsel for the respoident. . 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On August 23, 1940, the Trial Examiner filed an Intermediate Report, copies of which were duly served upon the respondent and the Union, finding that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (3) and (5) and Section 2 (6) and (7) of the Act. He recommended, inter alia, that the respondent cease and desist from engaging in unfair labor practices; that it offer to Herman Schroers and Peter Plaskon immediate and'full reinstatement to their former positions without prejudice to their seniority and other rights and privileges; that it make whole the above-named employees for any loss of pay suffered by them by reason of the respondent's discrimi- nation in regard to their hire and tenure of employment; and that, upon request, it bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit. On September 7, 1940, the respondent filed exceptions to the Inter- mediate Report and to the record, and a request for oral argument bofore the Board in Washington. On October 10, 1940, counsel for the Union filed a request that it be allowed to withdraw its charges that the respondent had violated and was violating Section 8 (5) of the Act. Pursuant to notice served upon the respondent and the Union, a hearing for the purpose of oral argument was held before the Board in Washington, D..C., on October 22, 1940. The respondent and the Union were represented by counsel and participated in' the argument. During the hearing the Union renewed its request that it be permitted to withdraw its charges in so far as they alleged that the respondent had violated Section 8 (5) of the Act., The respond- ent stated that it had no objection to such withdrawal. The Board hereby grants the request of the, Union that its charges of a violation by the respondent of Section 8 (5) of the Act be withdrawn and hereby amends its complaint by striking therefrom the allegation that the respondent has committed and is committing unfair labor practices within the meaning of Section 8 (5) of the Act. The Board has considered the respondent's exceptions to the Inter- mediate Report and its brief submitted to the Trial Examiner, and, save as the exceptions are consistent with the findings of fact, con- clusions of law, and order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following : 1 Counsel for the Union explained during oral argument before the Board in Washing- ton, D C, that the Union wished to withdraw its charges with respect to Section 8 (5) of the Act because it has signed with various milk dealers in New Jersey. a territory-wide agreement which prohibits it from signing with any dairy a contract covering a bargain- ing unit consisting only of milk drivers . The complaint in the instant case alleges that the driver-salesmen (milk drivers ) employed by the respondent , exclusive of supervisory employees, constitute an appropriate unit. 'RUDOLPH AND -CHARLES ' KUDILE FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent, since on or about January 1, 1935, a co-partnership doing business under the name and style of Kudile Bros. Hasbrouck Heights Dairy, is engaged in the purchase, sale, and distribution of dairy products. Its principal office and place of business is in the city of Hasbrouck Heights, Bergen County, New Jersey. All of the dairy products handled by the respondent are sold and distributed by it in New Jersey in and around Hasbrouck Heights. Of the products so sold and delivered, between 95 per cent and 97 per cent (consisting of bottled milk, cream, buttermilk and jar cheese), valued at about $180,000 annually, are purchased by the respondent from the Middleto\vn Milk and Creamery Company, whose dairy is located at Slate Hill, New York.- The respondent requires from 450 to 475 cases of bottled milk and cream per day from the Middletown Milk and Creamery Company. Such require- ments are trucked daily from that company's plant at Slate Hill, New York, to the respondent's dairy at Hasbrouck Heights, New Jersey, by a co-partnership composed of H. L. and F. McBride, who are engaged as contract carriers and licensed by the Interstate Com- merce Commission. As contract carriers in interstate commerce, the McBride Company in its transactions with the respondent engages in full time service one truck driver and one truck and two trailers. A loaded trailer is delivered from Slate Hill, New York, to Hasbrouck Heights, New Jersey, each evening and the other trailer is trans- ported with empty cases from Hasbrouck Heights to Slate Hill, New York, daily. About 70 per cent of the milk and cream bottles used in this service are owned by the respondent. The Middletown Milk and Creamery Company has an office in Newark, New Jersey, and the respondent transacts its business with that company through that office. The respondent also purchases dairy products valued at about $2,000 annually from the Raritan Valley Farms, Summerville, New Jersey. Such products are produced in New Jersey. In addition, the respondent purchases from concerns in the State of New York for distribution in New Jersey 200 to 250 pounds of butter and 200 to 250 dozen eggs per month and very small quantities of Boscul.2 The value of the butter, eggs, and Boscul handled by the company does not appear. a Boscul is a chocolate drink preparation. 120 DECISIONS OF-NATIONAL ' LABOR RELATIONS BOARD II. THE 'ORGANIZATION INVOLVED Milk Drivers and Dairy Employees Local Union # 680 is a labor organization affiliated with the American Federation of Labor. It admits to membership route drivers,-9 route riders, and yard and plant workers employed by the respondent. III. TH9 UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion (1) The organization of the Union The first attempt of the Union to organize the employees of the respondent occurred during the latter part of May or the first part of June 1937 when it caused a number of circulars urging organiza- tion to be distributed among them. Peter Plaskon, a route driver, testified that upon his arrival for work one morning he found one such circular in his truck and that when he returned from his route he had a discussion with Charles Kudile, - one of the copartners, con- cerning the circular. According to Plaskon, Kudile asked him whether or not he knew who distributed the circulars and when Plaskon replied that he did not know Kudile said, "If I find out who passed those circulars around he will be fired immediately." Walter O'Neill, also a route driver, testified that about the same time Charles Kudile asked him -if he knew who was distributing the circulars. According to O'Neill, he replied that he did not know and Kudile then asked him if he ever met with Lawrence McGinley, an em- ployee of the Borden Dairy,' who was then, or was soon thereafter to become, president of the Union. O'Neill answered that McGinley had urged him to join the Union, but without success. Kudile then volunteered that he could not afford to pay union wages and O'Neill ended the discussion protesting that he had had nothing to do with the` Union. Charles Kudile testified, but did not, deny or otherwise explain the testimony of Plaskon and O'Neill as set forth above. We find, as did the Trial Examiner, that their accounts of the events in May or June of 1937 are substantially correct. Within two weeks after the circulars mentioned above were distributed, the respondent volun- tarily granted the route drivers a raise in pay from $35 to $37 per week. In so far as it appears from the record, none of the employees had requested such a raise in pay. _ Route drivers are also referred to In the record as "route salesmen" and "milk drivers." It is their duty to deliver milk from the respondent's plant to its customers. RUDOLPH AND CHARLES -KUDILE 121 It is the `custom of milk dealers in the community wherein 'the respondent operates its-business to require 'the route drivers to ' exe- cute a written contract upon being employed and to give security, either in cash or by a surety , bond, for the faithful performance of duties having to do with the collection and accounting for the pro- ceeds , from the sale of milk and other related products . All milk drivers employed by the respondent were on or before- January 21, 1939, under contracts known as "drivers agreements ." Such agree- ments generally provided that the drivers deposit the sum of $200 as security to cover possible shortages in their remittances of collec- tions from customers. - During the month of January 1939, the route drivers employed by the Terwilliger-Wakefield Dairy, located at or near Hackensack, New Jersey , went out on strike . Plaskon testified that about the middle of January, Rudolph Kudile, one of the copartners , told him and a group of other employees that he ( Kudile) had just spoken by telephone with Mr. Wakefield of the Terwilliger -Wakefield Dairy and that Wakefield had informed him that, "Some of the fellows with the Union said that Kudile Bros. were next. " Herman Schroers, a route driver, testified that during the Terwilliger-Wakefield strike Rudolph Kudile asked him if he knew anything about it and that, when he replied he did not, Kudile stated, "It is not going to do them any good because they will never have a union in there." Schroers also testified that Rudolph Kudile subsequently said to him , "Wake- field told me that he was told Kudile Bros. was going to be next on- the list." Walter O'Neill testified that in January 1939 he saw Charles Kudile with a newspaper clipping concerning the strike referred to and that the latter remarked to him that the men engaging in it were fools and would lose their jobs. - Both Charles and Rudolph Kudile denied making the remarks at- tributed to them by Plaskon, O'Neill , and Schroers , as discussed above, or any other similar remarks. The Trial Examiner did not credit their denials. We-find that the testimony of Plaskon , O'Neill, and Schroers on this issue is substantially correct. On or about January 21 , 1939, soon after the Terwilliger-Wakefield strike, the respondent submitted to each of its route drivers a new form of contract and urged that it be signed. All of the route drivers complied. The new contracts were made to cover a term of three' years with the provision that the respondent could extend the term for an additional three years . They also provided for a raise in the pay of route drivers to $40 per week. In so far as the record shows, none of the route drivers had requested a new contract or a raise in--pay. Both Schroers and Plaskon testified that after all -the contracts had been signed Charles Kudile stated to a group of route drivers, "now 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD let the Union try to come in." Charles Kudile denied having made any such statement. The Trial Examiner did not credit his denial. We find that Charles Kudile made the statement attributed to him by Plaskon and Schroers. I - Early in April 1939 a number of the route drivers decided to undertake to organize the respondent's employees. With this objec- tive in mind, on the night of April 11 Plaskon, Schroers, and O'Neill called upon Lawrence W. McGinley, president of the Union, and ad- vised him of their wishes. At McGinley's suggestion the three men signed applications for membership in the Union that night. Mc- Ginley gave them blank applications and they agreed to go out the next day and endeavor to get signed applications from all of the other route drivers. After returning from their routes and collection tours on April 12, 1939, Plaskon, Schroers, and O'Neill undertook to get in touch with the other route drivers. They first saw Gilbert E. Millington who, after signing an application, accompanied them as they made other visits. This group succeeded in securing signed applications from five additional route drivers and from two other employees. They also called on Adrian Kudile, a route driver and nephew of the Kudile brothers. Adrian Kudile refused to sign an application at the time of the visit, but, according to Schroers, expressed his will- ingness to attend a meeting of the Union scheduled for the evening of April 13, 1939. Plaskon notified each of the route drivers who signed an application of the meeting to be held the following evening. (2) The calls on union applicants It is undisputed that immediately after Plaskon, Schroers, O'Neill, and Millington left his home early' in the evening of April 12, 1939, Adrian Kudile informed ,Charles and Rudolph Kudile of the visit and its purpose. Adrian Kudile testified, that he told his uncles, "that these fellows told me that it is no use not to sign because most of the fellows have already signed up, and they said that, `even if we would have to keep the routes in, we will get the Union."' After receiving the foregoing information from Adrian Kudile, one or both of the Kudile brothers, on the night of April 12, called at the homes of at least five drivers who had signed applications for membership in the Union. At about 9: 00 p. m. Rudolph Kudile alone called upon Walter O'Neill who gave substantially the following account of the visit. Kudile asked, "What seems to be the trouble, Walter? . . . what did you join the Union for?" When O'Neill replied that he joined be- cause the rest of the men had, Kudile said that the respondent could RUDOLPH AND CHARLES- KUDILE 123 not afford to pay union wages and insisted that there must be some other reason. O'Neill then remarked that he thought Charles Kudile had been too harsh in disciplining the men. Rudolph Kudile asked, "Did he ever bother you?" O'Neill admitted that he had not and Kudile left after suggesting, "Walter, try to think it my way. After all, I have been all right." Both of the Kudiles appeared at the home of Peter Plaskon at about 10: 00 or 10: 30 p. in. According to Plaskon's account of the visit, which follows, they told him that they understood he had joined the Union. Plaskon admitted that he had. Rudolph Kudile then asked him which of the other employees had also signed. Plaskon replied that he did not know. Rudolph Kudile then stated, "Don't lie to me because I know every move you made from the time you left the dairy." Plaskon replied, "Certainly I am allowed to do what I want on my own time." Rudolph Kudile then advised him, "Don't do anything you are going to be sorry for." The Kudile brothers called upon Herman Schroers, between 10:30 and 11:30 p. in. the same evening. Schroers' version of their visit follows. They first-asked him if he had joined the Union and he admitted that he had. They then asked him who else had joined. Schroers said that he did not know. One of the brothers then stated, "Well, we know who all signed up. We have got somebody out in the car who knows everybody that signed." The Kudiles asked Schroers ifs he had the applications and he replied that he did not. They then asked him where the applications were; Shroers said that he did not know. - Around 11: 00 p. in. the Kudiles appeared at the home of Albert Carbone, a route driver who had signed an application for member- ship in the Union, and asked him if he intended to'take his route out in the morning. They left when he told them that he did. William Gonzales,' a route driver who had signed an application for membership in the Union, was visited by the Kudiles at about 12:30 o'clock on the morning of April 13. They asked him if he intended to go out with his route later in the day. Gonzales replied ,that lie did and asked why they wished to know. The Kudiles answered that it was "because of what was going on." They then inquired as to who had approached him. Gonzales refused to say and the Kiidiles informed him that they knew anyway. Charles and Rudolph Kudile testified in substance that they understood from what Adrian Kudile told them on the evening of April, 12, 1939, that ,a number of the drivers were not going to take their routes out the following morning. They insisted at the hearing 4 Both Carbone and Gonzales were called as witnesses by the respondent and were in its employ at the time of the hearing. 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that their only purpose in making the night calls mentioned -above was 'to determine if this was true and that no other matters were discussed with any of. the men visited. Under the circumstances, and view of the fact that the Trial Examiner did not believe their testi- mony, we do not credit the explanation given by the Kudile brothers. We find that the accounts given by O'Neill, Plaskon, Schroers, Gon- zales, and Carbone with respect to the visits paid them by the Kudile brothers are substantially correct as related above . It is clear that the. Kudiles made special attempts to dissuade O'Neill, Plaskon, and Schroers, the three leaders in organizational activities among their employees, from continuing their efforts on behalf of the Union, and we so find. (3) The plant meeting on April 13, 1939 When the route drivers arrived 'at the respondent's plant for work at about 3 :00 a. in., their usual hour, on April 13 , 1939, they found both of the Kudile brothers already there. This was an unusual occurrence . The Kudiles alleged at the hearing that they were at the plant on the morning in question because of their belief that some of the men might not go to work and in order to take out some of the routes themselves should it prove necessary to do so. ' Soon after O'Neill reached the plant he was called into the office at the direction of Charles Kudile. Part of O'Neill's uncontradicted- account of the ensuing interview follows : Well, I went into the office and Charley asked me, he says, "Well, how do you feel about it?" I says, "About what?" He says, "About going ahead with that." So I says; "Well, after all, I am not the- only one," I says, "I am going in with the rest of the men . As far as I am concerned , I guess it is going through." So' he said to me, "Well, you know, Walter, we have tried to do the right thing. " He said, "You know we will just have to cut down the routes ." He gave me the same story that Rudolph did, cut down to four or five routes , and he said, "We will all be out of work." According to O'Neill, after his conversation with Charles Kudile he went out and made his deliveries . Later in the day he returned to the plant to procure change for use on his regular collection tour. -O'Neill testified that again Charles Kudile stopped him and asked, ."What seems to be the trouble with you?" O'Neill replied that he did not like certain clauses in the route drivers' contracts and that he thought Charles had been overly severe in disciplinary matters. He 'then objected to being questioned further and suggested that meet- ings of the employees should ,be held once a month to permit all the -RUDOLPH AND CHARLES KUDILE 125 men to explain their grievances. O'Neill testified that Kudile stated, "Well, at 2:00 o'clock, be in and we will have a little meeting." At 2 p. m. on April 13, 1939, a meeting was held at the plant.' All of the respondent's employees, with one exception, and Charles and Rudolph Kudile with their attorney, Albert S. Gross, were present. Gross was- introduced by Charles Kudile and took charge of the meeting. It seems clear that at the beginning of the meeting Gross announced that the employees had every right to organize if they chose and that the respondent had no objection to their doing so. He then praised the Kudile brothers highly as employers and, after asking the employees present what the trouble was, suggested that if the route drivers' contracts were at fault they could be torn up. How- ever, when one of the employees asked that he do so, the Kudiles objected. The evidence establishes that there ensued a discussion of various terms of the route drivers' contracts. O'Neill voiced his grievance that the contracts did not have a provision for sick leave. Schroers pointed out that, while the salary was stated at $40 per week in the contract, it was not stated whether the workweek con- sisted of 6 or 7 days; that the respondent could change the amount of security at will; and various other similar matters. Plaskon ex- pressed his objections to certain terms of the contracts, protested that the meeting was entirely uncalled for, and announced that there was to be a meeting of the Union that night. Earlier in the day employees-had informed officials of the Union of the meeting to be held at the plant. -Accordingly, during the meeting, Lawrence McGinley and one Keber, respectively president and business agent of the Union, were stationed near the plant, but off the premises, awaiting an opportunity to be called to repesent the employees. O'Neill advised the Kudile brothers that representatives of the Union were outside and asked permission to have them come in, in view of the fact that the respondent was represented by an attorney. Gross agreed that McGinley and Keber might come in, but the Kudiles refused to give their assent to such action. O'Neill renewed his request twice during the remainder of the meeting, but without, success. Both Plaskon and Schroers testified that following the discussion concerning the route drivers' contracts, Charles Kudile- suggested to the employees that they form a company union and select three men to serve on a grievance committee. Charles Kudile did not deny this testimony and we find that he made such a suggestion. It is un- disputed that the Kudile brothers and Gross left the room for a time to allow the employees to take a vote upon their course of future action., During the absence of these three men the employees selected The evidence does not clearly establish who notified the employees - about the .meeting. 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Plaskon, O'Neill, and Percy Englehart, a route rider, to-constitute their grievance committee. Apparently at the same time a majority of, the employees determined not to attend the meeting of the Union that night. When the Kudiles and Gross returned to the meeting they were informed of the selection of the grievance committee. Plas- kon, Schroers, and O'Neill all testified without contradiction, and we find, that Charles Kudile immediately objected to the presence of O'Neill and Plaskon on the committee and suggested that it be com- posed entirely of route riders.6 Thereupon, as the meeting broke up, Plaskon and O'Neill were replaced by Emil Kieland and,Lloyd Bunt- ing, two route riders. At the close of the meeting, Charles Kudile asked a group of the employees, "Is everybody satisfied? ... Are you going to forget all about it? O'Neill replied, "No, after all, the men [meaning the officials of the Union] up there were waiting for us.... They took our applications, . . . I have signed with the Union and I think I should go up there and tell them about it." Charles Kudile sought to dissuade him, saying, "Don't bother them." O'Neill, however, insisted that he should see the representatives, and Kudile further suggested that only one of the employees should go to-inform repre- sentatives of the Union what had occurred. Plaskon, Schroers, and O'Neill did, however, advise McGinley, president of the Union, as to what had happened at the plant meeting. All three men attended the meeting of the Union on the night of April 13, 1939. None of the other route drivers who had signed applications for membership in the Union on April 12 went to the meeting. Soon after the close of the meeting of April 13 in the respondent's plant, Gross, the attorney for the respondent, caused a statement purporting to describe what had happened at the meeting to be pre- pared .7 Thereafter, this statement was submitted by the respondent 6 Route riders apparently have some supervisory duties They also check the report books submitted monthly by route drivers. The statement was as follows This is to certify that : (1) That a meeting of all the employees, numbering 24, of Kudile Bros. Hasbrouck Heights Dairy, 171 Boulevard, Hasbrouck Heights , New Jersey, was called on April 13, 1939 for 2 p in at the address aforesaid , and at the request of the employees. (2) That said meeting was called for the purpose of discussing grievances between employer and employees. (3) That at said meeting all the employees hereinafter named were present, to- gether with Charles Kudile, Rudolph Kudile, and their attorney, Albert S. Gross. (4) That at said meeting, discussion of union affiliation was had, and the em- ployees were fully advised by the employer 's attorney that they had every right to organize or affiliate, and no objection to same existed on the part of the employer. (5) That the employers and their representative withdrew, and a ballot was taken in secret session after free and full discussion , as a result of which it was unani- mously concluded that the employees'refrain from union affiliation (6) That thereafter, the employers and their representative rejoined the meeting and two grievances between them existing were settled to the satisfaction of the employees , and incorporated in the contracts , hereinafter mentioned. (7) That there exist between employers and employee individual contracts, a copy of which is annexed hereto and made a part hereof , which are to the satisfaction of the undersigned. RUDOLPH AND CHARLES KUDILE 127 to all of the employees 'present at the meeting and all of them signed it. Seven of the respondent's employees, including Schroers, testi- fied that the statement represents a reasonably accurate account of the meeting. Despite such testimony, it is apparent from all of the evidence that the statement does not even approximate -a complete picture of what occurred. We find that the preparation of the state- ment and the obtaining of the 'signatures thereto 'constituted an attempt by the respondent to estop the employees or anyone ih their behalf, from claiming that the respondent had at the meeting in- fringed upon their rights under the Act. On the basis of all the evidence, we find that by interrogating its employees in May or June of 1937 concerning their knowledge of activities of the Union and by threatening to discharge any of them who might become affiliated with it; by attempting in January 1939, through the granting of an unrequested pay -increase, the procure- ment of new route drivers' agreements, and the making of dispar- aging remarks concerning the Union, to impress upon its employees a, belief that to joint the Union would be futile; by calling at the homes of certain of its route drivers on the night of April 12, 1939, and questioning them concerning their union activities and affiliations, by suggesting at the meeting of its employees on April 13, 1939, that they form a company union ; by interfering at such meeting with' the selection of a grievance committee by its employees, by refusing to allow their authorized representatives to be present, and by other- wise warning them against any form of outside organization; and by inducing its employees to sign a statement containing an incom- plete and distorted account of what transpired at the meeting of April 13, 1939, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. The discriminatory discharges of Herman Schroers and Peter Plaskon Schroers was hired by the respondent as a route driver on July 4, 1937, and was employed in that capacity until the date of his discharge. As_ previously set forth, Schroers was one of the leading promoters of union organization among the respondent's employees. He was one of the first to apply ,for membership in the Union and assisted in obtaining applications from seven other employees. He spoke out in favor of the Union at the meeting of April 13, 1939, in the respondent's, plant and thereafter continued his activities on behalf of and completed his membership in the Union. The evidence establishes that the respondent had knowledge of the foregoing. On_ May 19, 1939, the same day that it discharged Plaskon, another outstanding promotor of - union organization, the respondent gave . 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Schroers written notice that he was discharged, effective asp of that date. The notice stated in substance that the discharge was for failure to comply with the respondent's rules and the terms of the route drivers' agreement and for failure to make proper and timely -deliveries, collections, and reports. At the hearing Charles Kudile testified more specifically that Schroers was discharged for (1) shortages in his accounts, (2) drunkenness on the job during and after February and March of 1939, (3) "sleeping in" during April and May of 1939, and (4) carrying helpers against the respondent's rules. Considering first the matter of, shortages, the general rules of the respondent provided that each route driver should,turn in his route book not later than the 5th of the month following that,in which the book was used. The books were then checked by route riders. Each route rider supervised -the work to some extent and checked the books of approximately six route drivers. After the books were checked by the route rider they went to the main office where they were again checked by one of the Kudile brothers who in turn advised. the route drivers as to whether or not he had -any overages or shortages for the month. The route driver was supposed to make up any shortages which the above process might disclose before the '5th of the follow- ing month. The respondent introduced in evidence reports showing the monthly shortages and overages of all of its route drivers from July 1938 to April 1940. These reports; as well as all other evidence relevant to the matter, disclose that more often than not most of the drivers completed each month with either a shortage or an overage, the former being the more frequent. The respondent contended that it was a hard and fast rule that shortages should not be allowed to remain unpaid from month to month and that discharge was the penalty for violation of this rule. The record also contains testi- mony by a number of the respondent's employees that when a route driver's shortage for any single month exceeded` $50 he was subject to dismissal. Charles Kudile testified, however, that, subsequent to 'the discharge of Schroers, two other route drivers ran up cumulative shortages of $165.48 and $295.01, respectively, before being dis- charged. _ Plaskon testified without contradiction that still another driver ran up a shortage totaling over $500 before being discharged in September 1938. The respondent's regular 'report sheets for Schroers show that from July 1938 to January 1939, inclusive, he had the following shortages and overages : July-a shortage of $18.32-paid in full by August 27; August-an overage of $3.46; September- a shortage of $20.33- paid in full by November 5; October-a shortage- of $15.81-paid in full by December 5; November-a shortage of $14.54-paid in full by, January 4, 1939; December-an overage of $22.11; :and for RUDOLPH AND CHARLES KUDILE 129 January 1939-an overage of $29. The 'foregoing record is typical of that of other route drivers for the same period. The respondent's contention that Schroers was discharged by reason, inter alia, of his shortages must therefore be based upon the records of months after January 1939. Such records show that Schroers had the following shortages : for February $28.68, for March $44.64, for April $7.43, and for May $57.41. None of these shortages, totaling $136.24, had been paid at the time of the hearing. Schroers, however, still had on deposit with the Company security totaling $148. In considering the above record as a basis for Schroers' discharge it should be noted that the shortage for May 1939 would not in any event have entered into the respondent's determination since it could not have been computed and was not in fact known to the respondent until after the discharge. - The evidence discussed below indicates that Schroers' shortages for February, March, and April 1939 were not known to either the respondent or Schroers in time or under cir- cumstances such as A o make them a legitimate reason for his discharge. The route rider whose duty it was to check Schroers' books each month 'was Lloyd Bunting. Schroers testified that ' after January 1939 Bunting was so busy that he failed to check the 'former's route book for any month. Plaskon confirmed Schroers' testimony in this respect. Schroers further alleged that after January he repeatedly asked Rudolph Kudile as to the status of his accounts and each time was informed that the reports were not yet prepared. Neither Bunt-' ing nor Rudolph Kudile denied Schroers' testimony above, although both of the Kudile brothers made the vague and general allegation that they had warned Schroers about shortages. On the basis of the foregoing we find that Schroers was unable to ascertain from the respondent the status of his monthly accounts and that the respond- ent's contention that his shortages constituted a reason for his dis- charge is not a valid one. , The respondent's contention that Schroers was guilty of drunkenness on the job likewise appears to be without merit. Clement M. De- laney, a solicitor for the respondent, testified that he had occasion to see Schroers three or four times a week during hours of duty drink- ing to excess in a certain tavern where Delaney joined him. De- laney did not testify, however, that he reported Schroers' alleged intoxicated condition to the Kudile brothers. Charles Kudile also, testified that in February and March of 1939 he observed Schroers coming in from his route under the influence of liquor. Schroers admitted that during his lunch period he occasionally stopped in at the tavern mentioned by Delaney s and had one glass ofi-beer and, a This tavern was one of the customers on Schroers ' route. 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sandwich: He-denied that he became intoxicated. The Trial Exam- iner did not credit the testimony of Delaney or Charles Kudile in this respect, nor do we. , It would appear that if the accounts of either were true Schroers would have been discharged from 2 to 4 months prior to May 19,'1939, since the respondent had strict rules against drunkenness on the job. The respondent's additional defences that Schroers was guilty of "sleeping in" and carrying helpers 9 are not convincing. Charles Kudile testified that he had seen Schroers using helpers, but did not specify as to when or to what extent; he also testified that during April and May Schroers "slept in" about twice a week. Schroers tes- tified that when he had used helpers it had been by permission of the respondent and alleged' that he had not "slept in" more than 10 times in 2 years. There is considerable evidence that route drivers occasionally used helpers without permission and that "sleeping in" was not uncommon. It does not appear that the respondent has in the past made the occasional use of helpers and occasional "sleeping in" a basis for discharge. In summary, the respondent's energetic" attempts to suppress and prevent organization among its employees reveal that it had an active discriminatory intent as toward any of them who might en- gage in activity on behalf of the Union. Schroers was outstanding for his efforts to organize the respondent's employees. He was dis- charged on the same day as was Plaskon who was also active on behalf of the Union, as is discussed below. The respondent has pre- sOnted several reasons for discharging Schroers, none of which have merit. We conclude that Schroers was discharged because of his union membership and activity. We find that by discharging Schroers on May 19, 1939, the respond- ent discriminated against him in regard to hire and tenure of employment, thereby discouraging membership in the Union and interfering with, restraining, and coercing its employees in the exer- cise of the rights guaranteed by Section 7 of the Act. Peter Plaskon was hired by the respondent in July 1935 as a route driver and was employed as such until his discharge. As previously set forth, he was outstandingly active on behalf of the Union. In company with Schroers and O'Neill, he called upon Mc- Ginley on April 11, 1939, signed an application for membership in the Union, and thereafter undertook to organize the remainder of the respondent's employees. At the meeting of April 13 in the respond- ent's plant he was the most aggressive and outspoken of all the, It was against respondent's rules for route drivers to make use of helpers except with permission. RUDOLPH AND CHARLES KUDILE 131 employees on behalf • of the Union. He established and maintained his membership in the Union after April 13. A conversation between Walter O'Neill and Charles Kudile at the respondent's plant early on the morning of April 13, 1939, has been partly discussed heretofore. The subject of this conversation obviously was union organization among the respondent 's employees. O'Neill testified without contradiction that during this conversation he protested to Kudile, "Yes , but I am not the instigator of it or anything like that," and that Kudile replied , "Well, I know you are not but I have a pretty good idea who is." O'Neill then stated that it was time he started out on his route, , and, according to his un- disputed account, Kudile closed the conversation saying,, "See if you can't talk to Pete . . . Pete is walking around here pretty cocky and I can't do nothing with him." It is clear from the foregoing, from the call made by the Kudiles at the home of Plaskon on the night of April 12, and from the entire record, that the respondent had knowledge of Peter Plaskon's union activities and that it was taking active steps to discourage them. The respondent gave Plaskon written notice of discharge on May 19, 1939, the same day that it discharged Schroers. The notice, effective as of the date given, gave the same general reasons for dis- charge as appeared upon the notice to Schroers . At the hearing Charles Kudile testified that Plaskon was discharged for (1) short- ages in his accounts ; ( 2) habitually losing his route sheet; (3) grumbling and swearing ; (4) tardiness and forgetting customers; and (5 ) carrying helpers. Records introduced in evidence show that during the last 6 months in 1938 Plaskon had shortages as follows : For July $19 .58, paid in full by September 3; for August $2.87, paid in full by September 24; for September $24.87, paid in full by November 5; for October $24.74, paid in full by December 3; for November $44.47, paid in full by December 30 ; and for December $5 .07, paid in full by February 4.' Such a record is typical of those of other route drivers for the same period. For January 1939 Plaskon had a shortage of $19.54 which he did not pay in full until April 1939 . For February Plaskon was over $4.36; for March short $8.14; for April short $11.95 ; and for May he was short $38.25 . Plaskon's shortages for March , April, and May of 1939 were not paid up until June 16, 1939, when they were deducted from his security of $200, the balance of such security being returned, to Plaskon . Unlike Schroers, Plaskon received timely notification as to the status of his accounts at the end of each of the months here under consideration. I In view of Plaskon^s previously good record with respect to the settlement of his accounts and all of the evidence hereinbefore 413597-42-vol 28-10 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD set forth concerning shortages as a basis for discharge , we are not impressed with the respondent's contention that one of the main reasons for Plaskon's discharge was his shortages . His shortage for January was paid almost a month before he ' was discharged. His shortage for May could not have been computed at the time of the discharge and at such time the period allowed for payment of April shortages had not yet expired. Thus, on May 19, 1939, Plaskon's shortage of $8.14 for March was the only one upon which payment was overdue. The record contains ample evidence that such a minor shortage was not considered by the respondent to be adequate grounds for discharge. Charles Kudile testified that Plaskon habitually lost his route sheet, and would thereafter seek to get a duplicate from the office. Plaskon admitted having lost his route sheet a number of times prior to January 1939. There is no showing on the record that he lost it between that month and May 18, 1939 . According to Charles Ku dile, he had by the latter date already determined to discharge Plaskon. Hence the last ^ loss, occurring on May 18, cannot be con- sidered as a factor motivating such determination. 'Cha'rles Kudile also testified that when on May 18 he reproved Plaskon for losing his route sheet the latter swore at him. Plaskon emphatically denied this testimony. The above conflict, which the Trial Examiner resolved in favor of Plaskon, need not be determined, however, since we find, as did' the Trial Examiner, that Kudile had already decided to discharge Plaskon at the time the alleged cursing occurred . The other evidence concerning cursing and grumbling by Plaskon is not convincing. With regard to Plaskon's alleged tardiness, Charles Kudile testi- fied without elaboration that he "used to come late in the morning." Plaskon --testified that he "slept in" only about four times a year. Kudile also alleged that customers on Plaskon 's route used to call in two or three times a week about improper deliveries and that he carried helpers in violation of the respondent's rules. It is undis- puted that business on Plaskon's route increased contantly during the entire time he had it. Although Delaney, a solicitor, testified that Plaskon was not responsible for this increase , it tends, in any event, to show that he took care of deliveries with reasonable efficiency. Plaskon admitted using helpers without permission three or four times a year. Under the circumsances we do not believe that his doing so constituted a significant factor in the respondent's deter- mination to discharge him. In summary, the respondent's discriminatory intent as against those of its employees active on behalf of the Union is clear. Plas- kon, like Schroers,'was a leader in the attempt to organize the re- •Ri7DOLPH AND CHARLES KUDILE 133 tpondent's employees in the Union. The reasons given by the re- spondent for Plaskon's discharge are either unconvincing or without merit in that they have not in the past been grounds for discharge. We conclude that Plaskon was discharged because of his union mem- bership and activities. We find that by discharging Plaskon on May 19, 1939, the re- spondent discriminated against him in regard to hire and tenure of employment, thereby discouraging membership in the Union and interfering with, restraining, and coercing its employees in the exer- cise of the rights guaranteed by Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COM11ERCE The activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent de- scribed in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States; and tend to lead labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged, in -unfair labor practices, we shall order it to -cease and desist therefrom, and to take certain affirmative action which we find necessary to effectuate the policies of the Act. We have found- that the respondent discriminated in regard to the hire and tenure of employment of Herman Schroers and Peter Plaskon because of their union membership and activity. We shall, -therefore, order the respondent to offer them full and anmediate reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and priveges, and to make them whole by payment to each of them of a sum of money equal to the amount he would normally have earned as wages from the date of the discrimination against him to the date of the offer of reinstatement, less his net earnings 10 during such-period. "By "net earnings" is meant earnings less expenses , such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the respondent , which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere . See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer- ica, Lumber and Sawmill Workers Union, Local 1500, 8 N L R. B 440. Monies received for work performed upon federal , state, county , municipal , or other work-relief projects shall - be considered as earnings . See Republic Steel Corporation v. N L. R B , decided by United States Supreme Court , November 12, 1940. At the oral argument before the Board in Washington , D. C , counsel for the Union announced that Plaskon has received temporary employment as a route rider at the rate of $54 per week with the Tilton Dairy of Newark, New Jersey As stated herein , Plaskon's weekly wage while employed with the respondent was $40 Counsel for the Union asked 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. Milk Drivers and Dairy Employees Local Union #680, affili- ated with the American Federation of Labor, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employ- ment of Herman Schroers and Peter Plaskon, thereby discouraging membership in Milk Drivers and Dairy Employees Local Union #680, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is enagaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the re- spondent, Rudolph and Charles Kudile, copartners doing business under the name of Kudile Bros. Hasbrouck Heights Dairy,.Has- brouck, New Jersey, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in Milk Drivers & Dairy Employees LocalUnion # 680 or any other labor organization of its employees, by discharging any of its employees, or in any other manner dis- criminating in regard to their hire and tenure of employment or any 'term or condition of their employment; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid and protection as guaranteed in Section 7 of the National Labor Re- lations Act. that whatever wages Plaskon has earned while employed at the Tilton Dairy over and above what he would have earned had he been employed by the respondent for the same period be not counted in determining net earnings This request of the Union will be denied. RUDOLPH AND CHARLES KUDILE 135 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer to Herman Schroers and Peter Plaskon immediate and full reinstatement to their former or substantially equivalent posi- tions without prejudice to their seniority or other rights and privi- leges; (b) Make whole Herman Schroers and Peter Plaskon for any loss of pay they may have suffered by reason of respondent's discrimina- tion in regard to their hire and tenure of employment, by payment to each of them of a sum of money equal to that which he would nor- mally have earned as wages from the date of such discrimination against him to the date of the offer of reinstatement, less his net earnings 11 during said period; (c) Post immediately in conspicuous places at its plant, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating: (1) that the respondent will not engage in the conduct from which its is ordered to cease and desist in paragraphs 1 (a) and (b) of this Order; (2) that the respondent will take the affirmative action set forth in para- graphs 2 (a) and (b) of this Order; and (3) that the respondent's employees are free to become or remain members of Milk Drivers & Dairy Employees Local Union # 680 and the respondent will not discriminate against any employee because of membership or activity in that organization; (d) Notify the Regional Director for the Second Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. CHAIRMAN HARRY A. MILLIs took no part in the consideraton of the above Decision and Order. 11 See footnote 10, supra.