Consolidated Cigar Corp.

In the Matter of CONSOLIDATED CIGAR CORPORATION and CIGAR MAKERS' INTERNATIONAL UNION OF AMERICA, LOCAL No. 85 Case No. ' C-858.Decided November 2, 1939 Cigar Manufacturing Industry-Interference, Restraint, and Coercion: anti- union statements by supervisory employees-Unit Appropriate for Collective Bargaining: production, maintenance and shipping employees exclusive of super- visory and clerical employees ; reliance upon agreement of parties to such unit as expressed in agreement for consent election-Representatives: proof of choice consent election-' Collective Bargaining: refusal of : by refusing to enter into contractual relationship with the union for any employees except members of the Union-Discrimination: charges of, dismissed. Mr. Richard J. Hickey and Mr. Will Maslow, for the Board. Maass ct Davidson, by Mr. Herbert H. Maass, and Mr. Monroe L. Friedman, of New York City, for the respondent. Mr. Maurice Simons, of New York City, and Mr. Louis I. Oberg, of Washington, D. C., for the Union. Mr. TT'illiam B. Barton, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Charges and amended charges having been filed by Cigar Makers' International Union of America, Local No. 85, 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 April 8, 1938, against Consolidated Cigar Corporation,,- Poughkeepsie, New York, herein called the respondent. alleging 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 National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint accompanied by notice of hearing were duly served upon the respondent and the Union. ,-Incorrectly designated in the complaint as "Consolidated Cigar Corporation , Incorpo- rated." The complaint was amended at the hearing. 17 N. L. R. B., No. 13. 217 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Concerning the unfair labor practices the complaint alleged in substance that the respondent discharged and refused to employ two named employees because they had joined and assisted the Union; that the respondent refused to bargain collectively with the Union as the exclusive representative of the production employees of the respondent, although the Union had been designated by a majority of said employees as their representative for the purpose of collective bargaining and said employees constituted an appropriate bargaining unit; and that by the foregoing and other actions and remarks derogatory to the Union the respondent interfered with, restrainer' 1, and coerced it employees in the exercise of their right to self-organ,,- zation and to lY.°rcollectively through repi;ese ,ftzt: es of their own choosing. On April 30, 1938, the respondent filed its answer denying the commission of the alleged unfair labor practices and denying, for lack of knowledge, that the Union represented a majority of its employees at any of.the times alleged in the complaint. Pursuant to notice, a hearing was held in Poughkeepsie, New York, on June 23 and 24, 1938, before Wright Clark, the Trial Examiner duly designated by the Board. The Board and the re- spondent were represented by counsel. Except as hereinafter noted the parties participated in the hearing and were afforded 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 respondent renewed a motion, previously filed by it, to dismiss certain allegations in the amended charges and in the com- plaint and to strike certain allegations therefrom. The Trial Ex- aminer denied the motion. He also made rulings on other motions and objections to the admission of evidence. The Board has re- viewed the foregoing rulings of the Trial Examiner and except as hereinafter set forth, finds that no prejudicial errors were committed. The rulings are hereby affirmed. On August 23, 1938, the Trial Examiner filed his Intermediate Report, copies of which were duly served upon the respondent and the Union. He found that the respondent had engaged 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 and accord- ingly recommended that the respondent cease and desist from en- gaging in the unfair labor practices and that upon request it proceed to bargain collectively with the Union; that the respondent reinstate Frank Dzielecki and Carmelo Musmerci, with back pay, to their former positions ; and that it take certain other action to remedy the situation brought about by the unfair labor practices. ' Subsequently the respondent filed exceptions to the Intermediate Report, including an exception to a ruling of the Trial Examiner whereby he refused CONSOLIDATED CIGAR CORPORATION 219 at the above hearing to allow the respondent to call the Board's attorney, Richard J. Hickey, as a witness.2 On December 15, 1938, the respondent filed a brief in support of its exceptions. Pursuant to notice a hearing for the purpose of oral argument was held before the Board in Washington, D. C., on December 15, 1938. Both the respondent and the Union appeared by counsel and participated in the hearing. On January 18, 1939, the Board, after considering the exceptions and the brief filed by the respondent, and acting pursuant to Article II, Section 36, of National Labor Relations Board Rules and Regulations-Series 1, as amended, issued an order reopening the record in order to allow the respondent to examine Richard J. Hickey and "for the taking of further evidence." Pursuant to notice duly served upon the parties, a further hearing was held in Poughkeepsie, New York, on April 10 and 11, 1939, be- f ore A. Bruce Hunt, the Trial Examiner duly designated by the Board. The Board and the respondent 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. The respondent ex- amined Hickey a and was also given opportunity to cross-examine witnesses who testified for the Board at the first hearing.' During the course of the hearing the respondent again moved to dismiss the amended charges and portions of the, complaint. The Trial Exam- iner denied the motions. The Trial Examiner also made rulings on other motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner at the second hearing and finds that no prejudicial errors were committed. The rulings are hereby affirmed except in so far as the Trial Examiner denied the respondent's motions to dismiss those allegations in the complaint which alleged that Frank Dzielecki and Carmelo Musmerci had been discharged for joining and assisting the Union. Those mo- 2 The respondent's counsel at this hearing, after three witnesses for the Board had testified , withdrew from the hearing when the Trial Examiner refused to order Hickey to take the witness stand after being called by the respondent . The remainder of the hearing on June 23 and 24, 1938 , was conducted without participation therein by the respondent. 8 The examination of Hickey concerned an interview had by him prior to the first hear- ing, with one Mary Campion, an employee of the respondent and a prospective witness. According to an affidavit made by her on June 27, 1938, Hickey had told her at the time of the above interview , in reply to a statement by her that she "had nothing against" the respondent or Klein, the factory superintendent , that "the Union was going to get in the factory . . . and . . . it would be too late then that I would not have a chance and that I would be out of a job . . . At the second hearing Mary Campion was called by the respondent as a witness , but failed to testify that Hickey had made the above statement. Hickey, in his testimony , denied having made such a statement. * The respondent thus cross -examined nine witnesses who testified for the Board at the first hearing. Frank Dzielecki , hereinafter mentioned . was not cross-examined by the respondent because he had died on January 31 , 1939. Since the allegations of the complaint concerning him are dismissed , the respondent has not been prejudiced. 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions are hereby granted, in accordance with the decision and order hereinafter made. On June 29, 1939, the Board issued an order vacating and setting aside the Intermediate Report issued after the above hearing on June 23 and 24, 1938, and directing that no Intermediate Report be issued in the further hearing held on April 10 and 11, 1939. The Board, acting pursuant to Article II, Section 38 (d), of National Labor Relations Board Rules and Regulations-Series 1, as amended, further ordered that Proposed Findings of Fact, Proposed Conclu- sions of Law, and a Proposed Order be issued, and that the parties be given the right within ten (10) days from the receipt thereof to file exceptions, to request oral argument before the Board, and to request permission to file a brief with the Board. On August 25, 1939, the Board issued Proposed Findings, Pro- posed Conclusions of Law and a Proposed Order. Thereafter the respondent and the Union filed exceptions to the Proposed Findings, Proposed Conclusions of Law and Proposed Order, and also filed briefs in support of their exceptions. Pursuant to notice a hearing was held before the Board on October 10, 1939, for the purpose of oral argument. The respondent and the Union were represented at the hearing and both participated in the argument. The Board has considered the exceptions to the Proposed Findings of Fact, Proposed Conclusions of Law, and Proposed Order, and the briefs in support thereof, and in so far as the exceptions are incon- sistent with the findings, conclusions, and order set forth below, finds no merit in them. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The respondent, a Delaware corporation having its principal office and place of business in New York City, is engaged in the manufac- ture, sale, and exportation of cigars. It owns the entire capital stock of another cigar manufacturing company, G. H. P. Cigar Company, Inc. These two companies own factories in Pennsylvania, New York, and New Jersey, and warehouses in Connecticut and Pennsylvania. They also lease certain property in Pennsylvania, Florida, Porto Rico, Connecticut and various other parts of New England. The re- spondent employs a force of 139 salesmen who solicit orders through- out practically the entire United States. The respondent and the G. H. P. Cigar Company, Inc., spent approximately $4,145,000 for raw materials in 1937 and approximately 70 per cent of that expendi- CONSOLIDATED CIGAR CORPORATION 221 ture was for raw materials for the respondent. Sales of the respond- ent in 1937 were approximately $5,300,000. This proceeding is concerned only with the respondent's factory in Poughkeepsie, New York, where it manufactures cigars. Tobacco used in this factory is procured from points outside of New York ex- cept for such quantities as may be shipped to the Poughkeepsie factory after having first been stored in New York warehouses of the respondent. Eighty per cent of the finished products of this factory are shipped to points outside the State of New York. H. THE ORGANIZATION INVOLVED Cigar Makers' International Union of America, Local No. 85, is a labor organization affiliated with the American Federation of Labor, admitting to membership employees of the respondent in its Pough- keepsie, New York, factory except foremen and other employees in supervisory positions. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion The Union began organizational activity among the employees in the respondent's Poughkeepsie factory in August 1937. The respond- ent thereupon began an active campaign to discourage its employees from joining or maintaining membership in the Union. Julius Klein, superintendent of the factory, was among those representatives of the respondent who engaged in this campaign by making various remarks derogatory to the Union. Soon after October 6, 1937,6 Klein called Mary Elizabeth. Peters, treasurer of the Union and an employee of the respondent, to his office. He cau- tioned her not to tell anybody about the meeting. He then pro- ceeded to tell Peters that it was through his efforts that the ex- aminers had been given pay for holidays and vacations. He then added, "Now, the fellows have turned around against me and joined the Union." He further stated that "he figured the fellows had turned around and kicked him in the pants when he wasn't looking, so he said that he discontinued their holiday pay and vacation money . . ." Klein admitted in his testimony that the foregoing conversation took place and testified, ". . . I thought it was just not the right thing to do the things they did after me getting them the vacation." 5 The witness testified that this conversation occurred Immediately after the election. The election was held on October 6, 1937, and is discussed in Section "III B" infra. 222. DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sophie Digilio, an employee of the respondent, also testified to re- marks by Klein designed to discourage the Union. Soon after union organization had started Digilio one day during the lunch hour and outside the factory obtained a written application for union mem- bership from Helen Kusmiesnzk, another employee. After these em- ployees returned to the factory, Mrs. Decker, a forelady, learned of the incident and told Klein. Immediately thereafter Klein asked Digilio to return Kuslniesnzk's application card. Klein admitted this incident, but excused his conduct because "Sophie threatened Helen-told her that unless she signed the car (sic) she would beat her up." Digilio, however, denied that she had forced Kus- miesnzk to sign the card. The respondent did not call Helen Kus- miesnzk or Decker to testify in corroboration of Klein. Under the circumstances we credit Digilio's testimony regarding the incident. Raymond V. Murray, an employee in the filler. department,e also testified to similar acts of hostility to the Union by Klein. One day prior to the election of October 6, 1937, hereinafter discussed, Mur- ray was returning to work after his lunch hour during which he had been giving out union application cards. According to Murray, Klein stopped him and said, "I heard you have nothing else to do but pass out card- to get members for the union . . . You are a damn fool . . . It will never do you a damn bit of good . . . I will remember you, my boy." Klein did not deny having made these remarks and we accept Murray's testimony as true. Helena Marcy, another employee who had worked eight years for the respondent prior to September 1937 when she quit work volun- tarily, testified that just before she quit, Klein, in her presence said to one Perilla, a foreman, "They think they are doing a smart thing by having this union, but they will learn their lesson. The same thing will happen to them as to the Blue Ribbon Dyeing Company. The union is nothing but racketeers and gangsters, and they will take their money and skip town just as they did to the Blue Ribbon." Neither Klein nor Perilla denied that the former had made this state- ment. We find that Klein made the statement attributed to him by Marcy. Mary Elizabeth Peters, mentioned above, testified that two fore- men in the automatic department, Louis Aiello and one Bailey, both advised her after the election of October 6, 1937, against having any connection with the Union. Bailey told her that "the union men were nothing but a bunch of racketeers," and advised her that he had once joined a union, "but nothing ever came of it. He said that unions were no darned good." Neither Aiello nor Bailey was called 6 At one point erroneously referred to in the transcript as the billing department. CONSOLIDATED CIGAR CORPORATION 223 to testify by the respondent and we find that they engaged in the activity above attributed to them. Moritz Boesch, chief mechanic for the respondent, also undertook to discourage the activity of Peters in the Union. He told her after October 6, 1937, that if she would quit the Union about 50 other girls would also quit. Boesch also at the time showed Peters blue- prints of a proposed addition to the Poughkeepsie plant. He stated that "the reason why they were not having the annex built to our factory was because of union activity in the shop." Boesch did not deny in his testimony the substantial accuracy of the conversation as related above, but stated that he engaged in such conversation against the instructions of the respondent, that supervisory employees were not to discuss union matters with the employees. We find that Boesch engaged in the activity above attributed to him and that the respondent is chargeable with his conduct. His contention that such activity was against express instructions cannot excuse the respondent.7 We find that the respondent, by the conduct and remarks of its supervisory employees as detailed above, has interfered with, re- strained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. The refusal to bargain 1. The appropriate unit The complaint alleges that production employees exclusive of supervisory employees at the respondent's Poughkeepsie plant con- stitute a unit appropriate for the purposes of collective bargaining. The respondent in its answer denies the appropriateness of the above unit, but at the hearing offered no proof in support of its denial. On September 28, 1937, after the respondent had challenged the status of the Union as bargaining representative of its employees on the ground that the Union had not been designated by a majority of the employees, the respondent and the Union agreed in writing that the issue might be resolved through a consent election to be con- ducted by the Regional Director. The election was held on October 6, 1937. Pursuant to the terms of the above agreement those eligible to vote were "all factory employees, including maintenance and shipping employees, excluding foremen and clerks." Neither the 7 Matter of Swift & Company, a corporation and Amalgamated Meat Cutters and Butcher Workmen of North America, Local No. 641, and United Packing House Workers Local Industrial Union No. 300, 7 N. L. R. B. 269, order modified and, as modified, enforced in Swift & Company Y. National Labor Relations Board, respondent, 106 F. (2d) 87 (C. C. A. 10th). 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respondent nor the Union questions the appropriateness of the unit in which the election was conducted. We have held in numerous cases where the parties in interest themselves have agreed upon a specified unit as appropriate for collective bargaining, that it was within the exercise of our discretion to find such a unit an appropriate one to effectuate the policies of the Act." We are of the opinion that a similar principle obtains here where the parties have consented to the holding of an election by the Regional Director in a stated unit. The exclusion of foremen and clerks was in consonance with our usual practice. While the complaint described the group of em- ployees within the appropriate unit as production employees, it is clear from the character of the organization carried on by the Union among the plant employees, that the term should not be interpreted strictly but should be accorded its broad meaning of including equally other employees, such as maintenance and shipping employees.9 We find that all production, maintenance, and shipping employees in the respondent's Poughkeepsie plant, exclusive of supervisory and clerical employees, constitute a unit appropriate for the purposes of collective bargaining and that said unit insures to employees of the respondent the full benefit of their right to self-organization and collective bargaining and otherwise effectuates the policies of the Act. 2. Representation by the Union of the majority in the appropriate unit It is alleged in the complaint that on or about October 10, 1937, and at all times thereafter, the respondent refused to bargain with the Union through its duly authorized representative. That the Union represented a majority of the respondent's employees is estab- lished by the vote in the election mentioned above, held by the Regional Director on October 6, 1937, pursuant to the agreement between the parties. In that election, of 369 of the respondent's employees in the appropriate unit 224 of them voted in favor of the Union. We find that on October 6, 1937, and at all times thereafter, the Union was the duly designated representative of the majority of the employees in the appropriate unit, and pursuant to Section 9 (a) of the Act, was on that date and at all times thereafter has been the exclusive representative of all the employees in such unit for BMatter of Lone Star Bag and Bagging Company and Textile Workers Organizing Committee, 8 N. L. R. , B. 244; Matter of North River Coal and Wharf Company and Inland Boatmen's Union of the Atlantic and Gulf, 8 N. L. R. B. 146; Matter of Harry Schwartz Yarn Co., Inc. and Textile Workers Organizing Committee, 12 N. L. R. B. 1139 O Matter of Harry Schwartz Yarn Co ., Inc., and Textile Workers Organizing Committee, 12 N. L. R. B. 1139. CONSOLIDATED CIGAR CORPORATION 225 the purposes of collective bargaining with the respondent in respect to rates of pay, wages, hours of employment, and other conditions of employment. 3. The refusal to bargain Shortly following the election of October 6, 1937, there ensued several conferences between representatives of the respondent and the Union. At some of the early conferences attended by Maurice Simons, vice president and representative of the Union, and Otto F. Nelson, an organizer for the American Federation of Labor, repre- senting the Union, and one Meyer, the respondent's general manager, and Henry Rosengarten, its assistant manager, representing the re- spondent, the union representatives proposed that the respondent enter into a written agreement providing for (1) recognition of the Union as the exclusive bargaining representative of the employees in the respondent's Poughkeepsie factory, (2) it closed shop, (3) wage increases, (4) a revision of the method of weighing tobacco, (5) pay for time spent after regular working hours in cleaning machines, and (6) pay for work done on rejected cigars. On or about October 26, 1937, following one of the later conferences, Meyer delivered to Simons an unsigned letter which purported to constitute the respond- ent's reply to the foregoing demands. The letter reads as follows : OCTOBER 26, 1937. DEAR SIR: Referring to the various discussions had between you and the representatives of this Company respecting our Poughkeepsie Plant, we desire to notify you herewith that we are quite willing to recognize the International Cigar-Makers Union, affiliated with the American Federation of Labor, as the sole bargaining agent for those employees of the Poughkeepsie Plant who are members of said Union. This is not to be construed in any sense as an agreement on our part to maintain a closed shop at said plant but we will not in any wise discriminate against our employees who have joined said Union. Having thoroly canvassed the situation with you and you now being fully conversant with the conditions of our business, you recognize that it is impossible for us to grant any increase in wages or any change in the present conditions of employment. On the other hand, we agree that during the year 1938, we will not reduce the wage scale or change the conditions of employ- ment now prevailing at said plant. This is not to be construed as a guaranty on our part that all employees will be given full time employment during said year but only such as is consistent with the volume and requirements of our business. 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In consideration of the agreements on our part herein con- tained, you, for yourself and the members of your Union, agree that during the year 1938, the Union and the members thereof will not strike or in any other manner interfere with the opera- tions of said plant. If this conforms to the understanding reached between us, will you please sign the duplicate original of this letter, beneath the words-"APPROVED AND ACCEPTED" and thereupon this letter and the duplicate original so signed by you will con- stitute the arrangement between us.0a Yours very truly Approved and accepted, October 26th, 1937. Thus the respondent proposed to recognize the Union for its mem- bers only. The Union, however, insisted upon its right to exclusive recognition. Simons conferred further with Meyer and Rosengarten, but the latter, acting for the respondent, refused to accede to an agreement which provided for exclusive recognition of the Union. The cross-examination of Rosengarten at the hearing clearly revealed the respondent's attitude. He testified as follows : Q. (By Mr. MASLOw.) Did not Mr. Simons tell you that he wanted a contract in which the Union was recognized as the bargaining agent for every employee? A. Yes; I think he dwelt upon that several times. Q. What answer did you make? A. We told him no, we wouldn't give any contract, because on account of the people that voted against the Union. The respondent contends that it was unwilling to recognize the Union as exclusive bargaining representative for the employees in the Poughkeepsie plant because of uncertainty regarding what union represented its employees in Lancaster and Philadelphia. This con- tention is patently without merit. As shown in Rosengarten's testi- mony, the respondent refused to grant exclusive recognition because the Union, although designated by a majority, had not been desig- nated by all the employees in the Poughkeepsie factory. Moreover, the respondent recognized the appropriateness of the collective bar- gaining unit requested by the Union when it signed the agreement providing for the consent election.10 The respondent also argues that it was willing to recognize the Union as the bargaining repre- sentative for its members only, because it was in no position to assent to a closed shop as demanded by the Union. However, the respond- Italics supplied. 10 See subsection 1, supra- CONSOLIDATED CIGAR CORPORATION 227 ent could of course have recognized the Union as the exclusive bar- gaining representative for all employees in the appropriate unit with- out agreeing to a closed shop. Furthermore, it was under a duty to bargain with the Union as such representative,1' even though it was under no duty to assent to the closed-shop demands. We find that at the time of delivery by the respondent to the Union of the above letter of October 26, 1937, and at all times there- after the respondent refused to bargain collectively with the Union as the representative of its employees in the appropriate unit with respect to rates of pay, wages, hours of employment, and other con- ditions of employment. We also find that by such refusal the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. C. The alleged discriminatory discharges The complaint alleges that the respondent terminated the employ- ment of Frank Dzielecki and Carmelo Musmerci and refused to rein- state them because they joined and assisted the Union and engaged in other concerted activities for the purposes of collective bargaining and other mutual aid and protection. The respondent contends that it discharged Frank Dzielecki because he persisted in taking cigars from the trays in the factory after being warned not to do so and that it discharged Carmelo Musmerci because he made an insulting remark to his foreman, Henry Portman. Frank Dzielecki was employed by the respondent from 1928 until December 16, 1937. He was a floor boy on the automatic floor, a position which embraces a variety of duties. Dzielecki joined the Union in September 1937. According to his testimony, Klein, the factory superintendent, at once became watchful and critical, fre- quently interrogating him regarding his work and his activities out- side the factory. On December 16, 1937, Klein called Dzielecki into a hallway where some cans were stacked. Dzielecki, at Klein's request, pulled down some of the cans, which were found to contain a spoon, some dishes, and a rag. Dzielecki told Klein that the things belonged to one Ray Murray, another employee. Klein then sent for Murray who was also a union member and had the latter remove another can, which contained three or four cigars. Both Dzielecki and Murray testified that Klein then pretended to remove from the can a larger number n National Labor Relations Board v. Bites -Coleman Lumber Company, 96 P. (2d) 197 (C. C. A. 9th, 1938 ) ; Matter of Fedders Manufacturing Co., Inc., and Amalgamated .Association of Iron, Steel, and Tin Workers of N. A., Lodge 1753, 7 N. L. R. B. 817 ; Matter of The Boss Manufacturing Company and International Glove Workers' Union of America, Local No . 85, 3 N. L. R. B. 400. 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of cigars, some of which he had been holding in his hand behind his back. Klein denied this accusation and testified that inasmuch as he had found it necessary on previous occasions not long before. this incident to warn Dzielecki about taking cigars from the feeder trays, he proceeded to question both him and Murray about the cigars. Dzielecki testified that he admitted to Klein that he sometimes took cigars, but denied any knowledge about those Klein had found. Boesch, the chief mechanic, who meanwhile had joined the group, said, "I think Frank looks like the guilty party." Klein thereupon discharged Dzielecki.12 Three employees testified that at the close of work on the day of the discharge Dzielecki told them that he had been discharged because somebody "told on him" for taking cigars. Their testimony was not denied. Dzielecki was no more active in the Union than the majority of the other employees. Although we are not convinced by the evidence that Dzielecki stole the cigars in question, under all the circumstances we are satisfied that the respondent did not dis- charge him because of his membership in the Union. We find that the respondent has not discriminated with regard to the hire and tenure of employment of Frank Dzielecki. Carmelo Musmerci was employed by the respondent' from 1926 until his employment was terminated on or about January 19, 1938. His duty was to shake tobacco, a process the tobacco is put through before it is manufactured into the finished product. Musmerci joined the Union in September 1937 but was not active in its affairs. It was a custom of the respondent each year to close its factory at Poughkeepsie from about the middle of December to sometime in January. During the shut-down in the winter of 1937-1938 Musmerci was laid off. On December 23, 1937 when he returned to the factory to obtain his pay he asked Portman, his foreman, whether the respondent was giving 'him a box of cigars for Christmas.- Portman informed Musmerci that there was no box of cigars for him and that he did not know at the time whether or not Musmerci was to get one. Thereupon Musmerci referred to the respondent fn uncomplimentary and obscene terms and left the factory. On Janu- ary 19, 1938, when the factory was resuming operations, Musmerci, asked Klein for reinstatement. Klein accused Musmerci of having used the obscene language above mentioned in his conversation with Portman on December 23 and refused to reinstate him. We find that the respondent has not discriminated with regard to the hire and tenure of employment of Carmelo Musmerci. 12 There was testimony by the respondent's witnesses that the employees are not allowed to take cigars from the factory without paying for them. It appears, however, that defective cigars are sometimes sold to the employees at reduced prices. 13 The record indicates that occasionally the respondent gave such a Christmas gift to certain employees. CONSOLIDATED CIGAR CORPORATION 229 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III A and B above, occurring in connection with the operations of the respondent 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. THE REMEDY We have found that the respondent has committed certain unfair labor practices. We shall therefore order it to cease and desist there- from and to take certain affirmative action designated to effectuate the policies of the Act. The respondent will in addition be ordered to bargain collectively with the Union. 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. Cigar Makers' International Union of America, Local No. 85, is a labor organization within the meaning of Section 2 (5) of the Act. 2. All production, maintenance, and shipping employees in the respondent's Poughkeepsie plant, exclusive of supervisory and cleri- cal employees, constitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9 (b) of the Act. 3. Cigar Makers' International Union of America, Local No. 85, was on October 6, 1937, and at all times thereafter has been, the exclusive representative of all employees in such unit for the pur- poses of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By refusing on or about October 26, 1937, and at all times there- after, to bargain collectively with Cigar Makers' International Union of America, Local No. 85, as the exclusive representative of its em- ployees in such unit, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (5) of the Act. 5. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by 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. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 7. The respondent has not discriminated in regard to hire and tenure of employment of Frank Dzielecki and Carmelo Musmerci nor has it 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, Consolidated Cigar Corporation, and its officers, agents, successors , and assigns , shall: 1.- Cease and desist from: (a) Refusing to bargain collectively with Cigar Makers' Inter- national Union of America , Local No. 85 , as the exclusive representa- tive of its production, maintenance , and shipping employees , exclud- ing supervisory and clerical employees , in its Poughkeepsie plant; (b) In any other manner interfering with, restraining , or coercing its employees in the exercise of their rights 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 purposes of collective bargaining or other mutual aid or 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) Upon request; bargain collectively with Cigar Makers' Inter- national Union of America, -Local No. 85, as the exclusive representa- tive of all production, maintenance, and shipping employees in its Poughkeepsie plant, excluding supervisory and clerical employees, in respect to rates of pay, wages , hours of employment , and other conditions of employment; (b) Post immediately and keep posted for a period of at least sixty (60) consecutive days from the date of posting, in conspicuous places in its Poughkeepsie plant, notices to its employees stating : (1) that the respondent will cease and desist as provided in para- graphs .1 .(a) and (b) of this Order; and (2) that the respondent upon request will bargain collectively with Cigar Makers' Inter- national Union of America , Local No. 85 , as the exclusive representa- tive of the production, maintenance, and shipping employees in its Poughkeepsie plant, excluding supervisory and clerical employees. 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.