Consolidated Cigar Corp.

National Labor Relations Board - Board Decisions

Nov 2, 1939

17 N.L.R.B. 217 (N.L.R.B. 1939)

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.