Bayuk Cigars, Inc.

National Labor Relations Board - Board Decisions

Mar 26, 1940

21 N.L.R.B. 1125 (N.L.R.B. 1940)

In the Matter of BAYUK CIGARS. INCORPORATED and WHOLESALE CANDY
& TOBACCO SALESMEN'S ASSOCIATION
Case No. C-1.296.-Decided March 26, 1940
Cigar Selling and Disti tbntrng Industry-In tei f Drente , RestraNtt , and Coercion:
threat to report organizational activitie s to main office; request to eschew organ-
ization and report union efforts to supervisory employees-Discrimination:
discharges : clh:u ; es of , dismissed a5 to two employees-Dissent ( Leisersoni):
would dismiss complaint in full
Mr. George Rose , for the Board.
Riegelman , Hess, Strasser , ct Hirsch, by Mr. Charles A. Riegelman
and Mr . Lionel S. Poplcin, of New York City, for the respondent.
Boudin, Cohn d Glickstein , by Miss Vera Boudin and Mr. Victor
Rabinowitz , of New York City, for the Association.
Mr. William T. Little, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges, amended charges, and second amended charges duly
filed by Wholesale Candy & Tobacco Salesmen's Association, herein
called the Association, the National Labor Relations Board, herein
called the Board, by the Regional Director for the Second Region
.(New York City), issued its complaint dated April 3, 1939, against
Bayuk Cigars, Incorporated, New York City, herein called the re-
spondent, alleging that the respondent had engaged in and was en-
gaging in unfair labor practices affecting commerce, within the mean-
ing of Section 8 (1) and (3) and Section 2 (6) and (7) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act. A copy of
the complaint was duly served upon the respondent and the Associa-
tion.
The complaint alleged in substance that the respondent (1) dis-
criminated in regard to hire and tenure of employment by discharging
and refusing to reinstate Louis Weinstein and William Jelling be-
cause they joined Confectionery and Tobacco Jobbers Employees
21 N L. R. B, No. 111
112.5
28:1042-41-x o1 21--7.?
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union, Local No. 1175, R. C. I. P. A., herein called the Union, and- Its
successor, the Association, and (2) interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act by urging, persuading, and warning its employees
to refrain from union membership, by threatening discharges and
reprisals, by discharging Jelling and Weinstein, by keeping union
meetings and meeting place under surveillance, and by other acts.
Thereafter the respondent filed its answer, dated April 14, 1939, ad-
mitting some of the facts concerning its business but denying all other
material allegations of the complaint. On April 17, 1939, the re-
spondent filed with the Regional Director a demand for a bill of par-
ticulars. This demand was not ruled upon by the Regional Director.
Pursuant to notice duly served upon the parties, a hearing was
held in New York City from April 24 to 28, and from May 2 to 6,
1939, inclusive, before C. W. Whittemore, the Trial Examiner duly
designated by the Board. The Board, the respondent, and the
Association were represented by counsel and participated in the
hearing. Full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues
was afforded all parties. At the start of the hearing the respondent
renewed its motion for a bill of particulars. The Trial Examiner
denied the motion, stating that if the respondent found itself unpre-
pared at the close of the Board's case, an adjournment would be
granted.
During the hearing, the respondent's counsel made a number of
motions to strike specified portions of the testimony upon which
motions decision was reserved. The Trial Examiner denied all such
motions in his Intermediate Report. The Trial Examiner also re-
served ruling on the respondent's motion to dismiss the complaint.
The Trial Examiner did not pass on this motion in his Intermediate
Report, but recommended therein that the complaint be dismissed.
For the reasons discussed below, the motion is hereby denied. Dur-
ing the course of the hearing the Trial Examiner made numerous
rulings on other motions and on objections to the admission of
evidence. The Board has reviewed these rulings of the Trial Exam-
iner and finds that no prejudicial errors were committed. The rul-
ings are hereby affirmed.
On May 31, 1939, the Trial Examiner issued his Intermediate
Report, copies of which were duly served upon the parties, wherein
he found that the respondent had not engaged in unfair labor
practices within the meaning of Section 8 (1) and (3) and Section
2 (6) and (7) of the Act and recommended that the complaint
be dismissed. On June 10, 1939, the Association filed its exceptions
to the Intermediate Report. On August 9 and 24, the Association
BAYUK CIGARS INCORPORATED 1127
and the respondent filed their respective briefs, which have been
considered by the Board. Both the respondent and the Association
waived their right to oral argument before the Board. The Board
has considered the exceptions to the Intermediate Report and, in so
far as they are inconsistent with the findings, conclusions ,- and order
set forth below, finds them to be, without merit.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent is a Maryland corporation having its principal
office and place of business in Philadelphia, Pennsylvania, where it
is engaged in the manufacture of cigars . In the course of its busi-
ness, the respondent maintains a sales office in New York City, the
office involved in the present proceeding. The principal raw ma-
terial used in the manufacturing process is leaf tobacco which is
obtained from Pennsylvania, Connecticut, Cuba, and Sumatra. In
the year 1938, the respondent manufactured cigars having a sales
value of $16 ,791,000, of which $3,560,000 represented the value of
cigars shipped to the New York office for distribution. All of the
goods sold and distributed by the New York office were shipped to
New York from sources outside the State. Three per cent of the
goods sold by the New York office were distributed outside the State
of New York.
II. THE ORGANIZATIONS INVOLVED
Prior to June 1, 1938, Confectionery and Tobacco Jobbers Em-
ployees Union, Local No. 1175, Division B, was a labor organization
affiliated with the American Federation of Labor, admitting to mem-
bership candy and tobacco salesmen.
Wholesale Candy and Tobacco Salesmen's Association , organized
on June 1, 1938, as the successor to the Union , is an unaffiliated labor
organization admitting to membership salesmen employed by the
respondent as well as those of other employers.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint , and coercion
The complaint alleges in substance that the respondent urged, per-
suaded, and warned its employees to refrain from becoming or
remaining members of the Union and the Association, threatened
said employees with discharge and other reprisals if they became or
remained members of such unions , and kept union meetings and meet-
ing places under surveillance.
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
William Jelling, a salesman, was originally hired by the respond-
ent in 1933 and left its employ in 1936. Early in January 1937 he was
rehired by the respondent. On January 21, 1937, Fred Brown, the
manager of the respondent's New York office, sent the following letter
to Jelling :
DEAR BILL : It has been reported to me that the man who op-
erates a store at 7115 3rd Avenue (is now or was formerly con-
nected with LaPaline Cigar Co.) is the Business Mgr. of an
organization to unionize salesmen ... and you are the organizer.
Before reporting this matter to Philadelphia, I would like
verification from you whether this is true or not.
Kind regards.
Jelling replied denying that he was an organizer ahd nothing more
was said of the matter. In explanation of the letter Brown testified
that Jelling was an outside salesman and he wanted to learn only
whether Jelling was devoting his full time to his duties. While this
is a legitimate matter of employer concern, it is apparent that the
inquiry was not limited to determining whether Jelling was engaging
in union,activity on company time but was directed to whether he
was a union organizer. Under the circumstances the reference to
"reporting the matter" to the main office constituted a threat calcu-
lated to restrain Jelling from engaging in union activity even on his
own time. If the respondent's interest was limited to Jelling's activi-
ties during working hours, the inquiry could have been so restricted.
Having unnecessarily used broader language, it was at least incum-
bent upon the respondent to explain that legitimate action on Jell-
ing's part would not bring reprisal. Brown's inquiry plainly had the
effect of discouraging Jelling from engaging in union activity.'
The following June, 1937, the salesmen's "Boosters Club" held a
picnic at which Brown spoke. At about this time the respondent
was having difficulty with the teamsters union. According to Jelling,
Brown said : "We were salesmen and not truckmen, and that if we
went (sic) to join the union we should join a union of salesmen; that
the Tobacco Salesmen's Association 2 was an organization of sales-
men; that if we might be approached by union representatives to
1In so finding we disagree with the Trial Examiner's conclusion that the letter was not
intended to interfere with the rights of employees because in fact no such interference
occurred a yeas later when Jelling assisted in organizing the Union . It may be that
Jelling was discouraged from exercising the rights under the Act until 1938 because of
the letter It is unnecessary to speculate , however, upon the actual effect of Bronn's
inquiiy . We are satisfied that the element of interference was implicit in the letter and
had the normal effect of discouraging union activity . Matter of Montgomery Wald and
Covapany. and Warehouse Employees' Union No. 20 97 affiliated with the A. F of L, 17
N L R. B 191
2 Although the Association did not come into existence until after the time of the speech,
it is reasonable to assume that the witness was refeiimg to its predecessor the Union
BAYUK CIGARS , INCORPORATED 1129
join a union we were not to say that we would join the union , but the
least that we could do, as part of the family of Bayuk , as boosters
should be , was to inform him that such had happened ." Brown
testified that after hearing a group of men planning a salesmen's
union ' of some kind in the morning, he requested the men to bring
their grievances or complaints to him when he spoke at the luncheon
in the afternoon . Brown expressly denied advising the men on union
membership.
The Trial Examiner found that in view of the fact that the other
salesmen did not corroborate Jelling's story and the additional fact
that the salesmen did not actually organize until a year later, Brown's
speech did not constitute interference , restraint , or coercion. The
fact that the other salesmen did not corroborate Jelling's story is of
little significance since those who testified concerning the speech
either did not remember the statement that Brown testified he made
or did not remember what Brown said . While Brown may have re-
quested that the men submit their grievances to him personally, we
are convinced that he also made the request to refrain from organiz-
ing, attributed to him by Jelling. Brown admitted hearing about
the plan to organize but a few hours before the speech, and admitted
asking for grievances . Such a request , coining so shortly after hear-
ing of the proposed organization , was obviously an attempt to head it
off and, in view of these circumstances and Jelling 's testimony, it is
reasonable to conclude that Brown expressed his purpose more clearly
than he now recalls or admits. The fact that no further organiza-
tional efforts were undertaken by the salesmen for a year is imma-
terial in view of Brown's own admission that the men were con-
templating organization at the time he made his speech.3 We find
that Brown made substantially the statement attributed to him by
Jelling and that the respondent thereby sought to discourage the
organization of its salesmen.
In February 1938 Jelling conferred with officials of the Union
about organizing the respondent's employees . On March 14, 1938,
he was admitted to membership in the Union and entrusted with the
task of organizing the respondent's salesmen . He obtained members
and conducted meetings with the aid of union officials . At one of
these meetings , the members present drew up a set of proposals which
were subsequently reduced to contract form.
On April 14 Abraham Strauch, the business agent of the Union,
called on Brown and presented the proposed contract to him. Brown
requested a week's delay to communicate with the home office and
Strauch agreed . According to Strauch , when he returned on April
21, Brown told him that the respondent was not ready to negotiate
3 See footnote 1, supra
1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that he did not know when the respondent would be ready. At
a union meeting that night Strauch reported the situation to the
members and it was voted to strike unless the respondent set a time
for negotiations and agreed to refrain from discussing union matters
at a salesmen's meeting scheduled for April 22. According to
Strauch, when he called on Brown on the morning of April 22 and
informed him of the Union's decision, the latter told him that the
respondent would not recognize or negotiate with the Union, and
that he would say what he wanted to at the salesmen's meeting.
Brown denied Strauch's version of the meetings of April 21 and 22.
We need not, however, resolve the conflict in the testimony. In view
of the fact that the Union did not represent a majority of the re-
spondent's employees at this time, and under the circumstances here
present, the respondent was under no duty to recognize or negotiate
with the Union.
On April 22, shortly after Strauch's meeting with Brown, the
union members went out on strike. That evening the respondent
held a salesmen's meeting which was attended by the non-striking
employees. Various business matters were discussed and at the con-
clusion of the meeting Brown read a prepared statement discussing
the Act, the rights of employees thereunder, and the respondent's
policy in regard to organization. Under all the circumstances of
the case we are satisfied that Brown's statement did not interfere
with, or have the effect of interfering with, the employees in the
exercise of their rights under the Act.
On. April 23 a committee representing the Union met with Brown
and arranged for a conference on April 25 with A. J. Newman, the,
respondent's president. At this meeting, Henry Carr, the respondent's
vice president and treasurer, inquired what various paragraphs of the
contract meant, and concluded by saying that the respondent could
not negotiate further until Harry Wurman, its vice president, who
was in charge of labor relations, returned from Europe. He requested
that the Union call off the strike and refrain from distributing cir-
culars pending Wurman's return. The Union refused to accede to
this request and proceeded with its strike activities.
Another meeting was held May 16. The meeting was attended by
the attorneys for the respective parties, a committee of union mem-
bers, Brown, Carr, and Strauch. The men were asked to state their
complaints. The proposed contract was discussed only in connection
with the grievances expressed. Carr promised to investigate and
determine whether some concessions could be made on various mat-
ters brought up by the Union, and it was agreed that another meeting
should be held May 18. On May 18 the Union and the respondent
met again. The meeting was brief. The respondent's attorney, -read-
BAYUK CIGARS, INCORPORATED 1131
iug from a prepared statement, rejected many of the union demands,
and announced that the respondent was investigating some of them.
He concluded with the statement, "For the foregoing reasons the
Company declines to enter into any agreement." After the statement
was read, the respondent's representatives left the room at the request
of the union negotiators, who then discussed the matter among them-
selves. Shortly, thereafter the meeting was adjourned. On the
evening of May 18 the negotiating committee reported the results of
their efforts to a union meeting. Either at that meeting or some-
time during the following day the salesmen decided to return to
work. On May 20 most of the salesmen applied for and secured
reinstatement.
On the basis of the entire record, we are not satisfied that, during
the negotiations described above, the respondent interfered with,
restrained, or coerced the employees in the exercise of the rights
guaranteed under the Act. There is no showing that the respondent,
in rejecting the union demands, sought to discourage the salesmen
in their organizational activity. The respondent was not obliged to
accede to the union demands and the manner in which they were
rejected was not unreasonable. Considered in its context, the state-
ment, "For the foregoing reasons the Company declines to enter into
any agreement," meant only that the respondent was rejecting the
agreement proposed by the Union, and, as the Trial Examiner found,
was not interpreted by the Union to mean that the respondent was
thus announcing that it would no longer deal with the Union.4
Shortly before the May 16 meeting Meyer Austein, who had been
active in the strike and had served on the Union's negotiating com-
mittee, consulted his uncle, Irving Schneider, an attorney, and asked
him to intervene in the case. Schneider thereupon communicated
with the union attorney and was informed that there was no objec-
tion to his participation in the negotiations. Schneider attended the
meetings of May 16 and 18 and participated in the discussions. At
the outset of the negotiations on May 16, counsel for the respondent
inquired whom he represented. His reply that he represented the
Union was not questioned by anyone present. According to Austein,
he retained Schneider to protect his interests with respect to any
contract negotiated between the respondent and the Union and to
negotiate with the respondent for his return to his job without the
knowledge of the Union. Following the meeting of May 16,
Schneider telephoned the respondent and sought to negotiate for
the return of some of the men, but was unsuccessful. According to
the respondent, it refused to negotiate because of the determination
4It should be noted that the complaint does not allege that the re,pondent ietused to
bargain with the Union within the meaning of Section 8 (5) of the Act
1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Regional Office of the Board that the Union was the ex-
clusive representative of the respondent's salesmen for purposes of
collective bargaining.
Thereafter, Austein and several of the other employees, including
Weidler and Strathearn, decided to form an inside union. At their
request, Schneider drew up an instrument whereby its signers ex-
pressed their dissatisfaction with the Union and withdrew their
designation of it as their bargaining representative. The petition
was circulated by Austein and others and was signed by all but four
of the salesmen who had been on strike. In addition, several meet-
ings were held and representatives were elected by the members of
the new organization. The respondent, however, refused to deal
with this new labor organization until it should be certified by the
Board.
Austein's explanation for the organization of the inside union was
that he had become dissatisfied with the union officials who were
quarreling among themselves. Others of his associates attributed
their dissatisfaction with the Union to its failure to produce the
promised strike benefits, and to the lack of cooperation of the team-
sters who returned to work shortly before the close of the strike.
The respondent lent Austein, Weidler, and Strathearn the money
necessary to pay Schneider for his services. However, it was shown
that the respondent customarily lent money to its salesmen, having
made about one hundred loans between 1930 and the time of the
hearing.6 There is no evidence that at the time of the loan, the re-
spondent was aware of the use to which Austein and his associates
intended to place it.
The record affords insufficient basis for finding either that the re-
spondent, through the loan, knowingly contributed financial support
to the inside union or that Austein and the other dissident members
of the Union were acting on behalf of the respondent. Moreover,
there is no showing that Austein's activities were otherwise the result
of the respondent's unlawful conduct.
On June 1, 1938, by common consent of divisions "A" and "B"
of Confectionery and Tobacco Jobbers Employees Union, Local No.
1175, the Association was formed as the successor to the Union.
We find that by virtue of Brown's letter to Jelling in January
1937 and by virtue of his speech in June of that year, the respondent
has interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
c The respondent, in its brief, refers to a "certification" of the Union by the Regional
Director.
6 It Is clear from the record that Austein, weidler, and Strathearn repaid the loan in
small weekly Installments , which commenced shortly after the loan was made.
BAYUK CIGARS, INCORPORATED 1133
B. The discharges
Louis Weinstein was first employed by the respondent in 1932,
but resigned in 1936 because of ill health. In January 1938 he was
reemployed and first assigned to the territory of Fred Hillman, a
salesman who was then on a leave of absence because of illness. Be-
fore Weinstein started to work, however, Robert Kirschner, another
salesman of the respondent who had previously covered Hillman's
territory for another manufacturer, was, assigned to it and Wein-
stein was given Kirschner's territory. Brown testified that he
had promised Hillman and Kirschner to reassign them to their
former territories when Hillman recovered from his illness, and his
testimony is supported by that of both Hillman and Kirschner. In
September 1938 Hillman returned to work and was reassigned to
his former territory. Kirschner was assigned to his and on October
1, 1938, Weinstein was discharged.
Brown and Philip McGuire, the assistant manager of the New
York office, testified that when he was employed in January 1938,,
Weinstein was informed that the job was temporary and would last
only until Hillman returned. Weinstein denied this, saying that
Brown had promised him a job upon his return when he left the
respondent's employ in 1936. Weinstein"s testimony was denied by
Brown. It is clear that Brown promised Hillman and Kirschner
their former territories. Both the letter of dismissal and a letter
of recommendation to a prospective employer contained no indica-
tion that Weinstein was originally hired temporarily. Without
determining whether his position as an employee was temporary or
permanent, we find that Weinstein's original assignment to Kirsch-
ner's territory was temporary and conditional upon Hillman's
return.
Weinstein was the third of the respondent's employees to join the
Union. He served as picket captain during the strike, and was one
of the two salesmen who joined the Association after it was formed
in June 1938, although there is no evidence that knowledge of his
affiliation with the Association was communicated to the respondent.
When the respondent posted a list of the reinstated salesmen on
May 20, Weinstein's name was missing from the list as were the
names of three other salesmen. Brown testified that Weinstein's
name was omitted from the list because no one informed him that
Weinstein was desirous of returning. Saul, a leader in the inside
union, testified that he may not have told Brown that Weinstein
was returning. It is not denied that when Weinstein applied for
work on May 23, he was reinstated. In view of this fact and the
dissension in the Union, which apparently found Saul and Wein-
1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stein arrayed on opposing sides, we accept Brown's version of the
incident.
With Hillman's return in September, he and Kirschner were as-
signed to their former territories in accordance with their -uiifder-
standing with the respondent. The respondent, of course, could
have transferred Weinstein and discharged some other salesman.
The record shows, however, that the respondent did not follow a
seniority rule. Furthermore, Weinstein was not an outstanding
salesman, having finished fifth in a contest of eight salesmen and was
presumably unfamiliar with-the routes covered by salesmen having
less seniority than he.
We are of the opinion that the record does not support the allega-
tion that Weinstein was discriminatorily discharged. We find that
the respondent has not discriminated in regard to the hire and tenure
of employment of Louis Weinstein to discourage nmembership;intthe
Union or the Association.
William Jelling was originally hired by the respondent in 1933
and left its employ in 1936. He was rehired in January 1937 and
was discharged on December 22, 1938. During his second term of
employment, as indicated above, he carried on the organizational
work for the Union among the respondent's salesmen, and at the time
of the strike was the leader of the strikers, although he held no
official position. Like Weinstein, he joined the Association when it
succeeded the Union. His name was also omitted from the list of
reinstated employees referred to above, but when he did apply for
reinstatement, he was reemployed along with the others immediately
after Brown called A. J. Newman, the respondent's president.
Thereafter, he was isolated from the other salesmen and instructed to
keep his car in a garage other than the one used by his fellow em-
ployees. He was also instructed to report to the main office for mer-
chandise on a different day than most of the other salesmen. There
is some evidence that the respondent issued these orders to Jelling
following a fight between him and a fellow salesman. Although we
are not satisfied that Jelling's isolation from the other salesmen was
motivated by the altercation, as alleged by the respondent, neither do
we find that the respondent's instructions were motivated by anti-
union bias.
The respondent contends that Jelling was discharged primarily
because of complaints received from -his customers and his frequent
violations of the respondent's credit rules, particularly in delivering
merchandise to customers in excess of the credit limit fixed by the
respondent. The respondent introduced evidence of some forty pur-
ported violations by Jelling, most of which occurred during the last
few months of his employment. Several of these violations were
BAYUK CIGARS, INCORPORATED 1135
satisfactorily explained by Jelling but in most cases there is either
no explanation or the explanation revolves around Jelling's con-
tention that the enforcement of the credit rules was not advisable
under the circumstances . The respondent 's credit manager testified
that he had constant conversations with Jelling with respect to the
violations , but without result. While it is clear that practically all
the salesmen violated the rules at one time or another , it was not
shown that their violations approached Jelling's in frequency.
The respondent introduced in evidence seven written complaints
received from customers of Jelling , and McGuire , the assistant mana-
ger, testified that he had received at least 10 telephone complaints
during the summer of 1938. Charles Carulli, who had entered an
oral complaint , as well as several writers of other complaints , testified
at the hearing. When Brown received a complaint from one Y.
Goldstein on December 7, he notified Jelling that another complaint
would cause his dismissal . When an investigation of Jelling 's "dead
accounts" netted two more complaints within the next week, Brown
recommended Jelling's discharge.
Jelling admitted that McGuire had called his attention to cus-
tomer complaints on one occasion and admitted receiving Brown's
warning of December 7, 1938. He also admitted telling a customer
who threatened to complain that he already had plenty of complaints
lodged against him. In contrast , it was testified that the other
salesmen averaged only one or two complaints a year.
While the case is not free from doubt, nevertheless in the absence
of evidence that the credit violations and complaints discussed
above were customary , we are not satisfied that it was Jelling's union
activities and affiliation that motivated his discharge . We find that
the respondent has not discriminated in regard to the hire and tenure
of employment of Jelling in order to discourage his union activity.
- IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section III,
A, above, occurring in connection with the operations of the respond-
ent described in Section I above, have a close, intimate , and substantial
relation to trade, traffic , and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. TIIE REMEDY
Having found that the respondent has engaged in certain unfair
labor practices , we will order that it cease and desist from such prac-
tices and , to effectuate the purposes of the Act , we will order the re-
spondent to post notices stating that it will so cease and desist. The
1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent's employees will thus be assured that they may exercise
the rights guaranteed by the Act without.fear of interference,.restraint,
or coercion.
Upon the basis of the foregoing findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Confectionery and Tobacco Jobbers Employees, Local No. 1175,
Division B, and its successor, Wholesale Candy and Tobacco Sales-
men's Association, are labor organizations, within the meaning of
Section 2 (5) of the Act.
2. 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 engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
4. The respondent has not discriminated in regard to the hire and
tenure of employment of Louis Weinstein and William Jelling and
has not thereby discouraged membership in a labor organization,
within the meaning of Section 8 (3) 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 respondent,
Bayuk Cigars, Incorporated, and its officers, agents, successors, and
assigns shall :
1. Cease and desist from in any manner interfering with, restrain-
ing, or coercing its employees in the exercise of the right to self-organ-
ization, to form, join, or assist labor organizations, to bargain collec-
tively through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining and other
mutual aid and protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Immediately post notices in conspicuous places throughout its
New York office and maintain such notices for a period of at least sixty
(60) consecutive days, stating that the respondent will cease and
desist in the manner aforesaid;
(b) 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 :
BAYUK CIGARS , INCORPORATED 1137
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed in so far as it alleges that the respondent has engaged in
unfair labor practices , within the meaning "of Section 8 (3) of the Act.
MR. WILLIAM M. LEISERSON , dissenting in part:
I am of the opinion that the findings of the Trial Examiner should
be affirmed and the complaint dismissed.