Bayuk Cigars, Inc.

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.