Kudile Bros. Hasbrouck Heights Dairy

National Labor Relations Board - Board Decisions

Nov 26, 1940

28 N.L.R.B. 116 (N.L.R.B. 1940)

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.