The Halff Manufacturing Co.

National Labor Relations Board - Board Decisions

Oct 27, 1939

16 N.L.R.B. 667 (N.L.R.B. 1939)

In the Matter of HARRY A. HALFF, DOING BUSINESS AS THE HALFF
MANUFACTURING COMPANY and INTERNATIONAL LADIES' GARMENT
WORKERS' UNION
Case No. C-1314.-Decided October 07, 1939
Ladies Wearing Apparel Manufacturing Industry-Interference, Restraint, and'
Coercion: questioning employees as to union affiliation; permitting employees to,
hold anti-union meetings and to circulate anti-union petitions on company prop-
erty during working hours; permitting employees to hold an anti-union "party"
on company property during working hours and participating in the same ; encour-
aging and aiding employees in intervening in an injunction proceeding against the
Union-settlement: of previous charges against the employer where employer falls
to comply with undertaking upon which settlement was predicated; held no bar
to issuance of an Order based on new charge covering some of activities included
within charge that was settled.
Mr. L. N. D. Wells, Jr., for the Board.
Terrell, Davis, Hall & Clemens, by Mr. Theo F. Weiss, of San An-
tonio, Tex., for the respondent.
Mr. Maxwell Burlcet, of San Antonio, Tex., for the Union.
Mr. Hyman A. Schulson and Mr. Warren L. S/turfman, of counsel
to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by International
Ladies' Garment Workers' Union, herein called the Union, the Na-
tional Labor Relations Board, herein called the Board, by the Regional
Director for the Sixteenth Region (Fort Worth, Texas) issued its coin-
plaint dated April 13, 1939, against Harry A. Halff, doing business
as The Halff Manufacturing Company, San Antonio, Texas, herein
called the respondent, alleging that the respondent had engaged in and.
vas engaging in unfair labor practices affecting commerce within the.
meaning of Section 8 (1) and Section 2 (6) and (7) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act.
The complaint alleged in substance that the respondent, by a super-
visory employee, on or about January 16,1939, questioned his employees
16 N. L. R. B., No. 68.
667
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
regarding their union affiliation ; on or about January 26 , 1939, shut
off the power in the plant and stopped the operation of plant machinery
during working hours so that all employees in the plant could hear
anti-union speeches made in the plant by Barbara Williamson, an
employee, and others ; on or about January 26 , 1939, prepared and
caused and/or permitted Barbara . Williamson to circulate an anti-
union petition among his employees during working hours and on the
respondent's property ; during the week of February 27, .1939, and
thereafter called, caused to be called , and encouraged several meetings
of his employees during working hours on the respondent 's property at
which anti -union speeches were made ; on or about February 28, 1939,
and thereafter, encouraged the formation of an organization among
his employees known as The Employees of The Half Manufacturing
Company to oppose the Union, by permitting and encouraging the hold-
ing of meetings on the respondent 's time and property on or about
February 28, March 1 , March 6, 1939, and on various other dates and
by sponsoring a party in the plant during working hours on or about
March 1, 1939, at which efforts were made to organize opposition among
his employees against the Union; on or about January 1, 1939, the
respondent joined and participated in the activities of the Associated
Employers, Inc., and thus contributed to and assisted in the prepara-
tion and dissemination of anti -union propaganda ; on or about March
16, 1939, and on various other dates , when the Union maintained a
picket line near the plant, the respondent attempted to discourage the
pickets by throwing water on them ; and by other acts interfered with,
restrained , and coerced his employees in the exercise of the rights
guaranteed in Section 7 of the Act.
A copy of the complaint was duly served upon the respondent and
the Union . On April 20 , 1939, the respondent filed with the Regional
Director his answer to the complaint averring that his business was
almost entirely intrastate in character and hence that the Board lacked
jurisdiction of the subject matter, and denying that he had engaged in
and was engaging in the unfair labor practices alleged. As a further
defense, the respondent alleged in his answer that the Union in Jan-
uary 1939 , filed charges 1 with the Regional Director alleging substan-
tially the same acts set forth in the instant charges and complaint, and
that on or about March 4, 1939 , the charges filed in January 1939, had
been dismissed and settled pursuant to the terms of a settlement agree-
ment under which the respondent posted in his plant a certain notice
prepared and requested by the Regional Director ; that because of said
settlement the Union and the Board are estopped from prosecuting the
respondent on the same charges ; and that to permit the further prose-
cution of the charges alleged in the complaint would amount to double
1 Case No . XVI-C-383.
HARRY A. HALFF 669
jeopardy. On April 20, 1939, the respondent also filed a motion to
strike and dismiss various portions of the complaint as unsupported
legal conclusions and others for indefiniteness; as well as to dismiss the
complaint for failure to allege facts sufficient to vest the Board with
jurisdiction in the premises, for general insufficiency, and because the
matter had been compromised and settled on or about March 4, 1939.
Pursuant to a notice served upon the respondent and the Union, a
hearing was held at San Antonio, Texas from April 24 to April 28,
1939, inclusive, before Thomas S. Wilson, the Trial Examiner duly
designated by the Board. The Board, the respondent, and the Union
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 upon the issues was afforded to all
parties. The respondent's counsel filed a brief with the Trial Examiner
on May 13, 1939.
At the opening of the hearing, the Trial Examiner denied the
respondent's motion to strike and dismiss, reserving his ruling, how-
ever, on the portions thereof directed to the jurisdiction of the Board
and to the plea of compromise and settlement, which he later denied
in his Intermediate Report. These rulings are hereby affirmed. At
the beginning of the hearing, Randle Taylor, an attorney, represent-
ing the employees of the respondent, herein called the petitioner,
appeared and made an oral motion to intervene in behalf of said
employees. The Trial Examiner notified Taylor that he had failed
to comply with the requirements of Article II, Section 19, of Na-
tional Labor Relations Board Rules and Regulations-Series 1, as
amended, which provides, inter alia, that such motions must be made
in writing setting out the grounds upon which said employees claim
to be interested. The Trial Examiner, however, permitted Taylor
to attend the hearing and confer with the respondent's counsel until
such written motion was prepared. On the following day, Taylor,
on behalf of the petitioner, filed a written "Motion of the Employees
of the Halff Manufacturing Company for Leave of Intervention."
In its motion the petitioner claimed to have an interest to protect in
the proceeding because, it alleged, the only purposes of the complaint
were to harass and damage the respondent, to force the respondent
to sign a contract with the Union, and to force the employees to join
the Union so that the Union could begin collecting dues. It further
alleged that the respondent had not interfered with the rights of his
employees, and that the petitioner believed that the Union could not
benefit the respondent's employees, and that said employees did not
wish- to belong to the Union.' The Trial Examiner denied the peti-
tioner's motion, but permitted petitioner's counsel to attend the hear-
ing and confer with the respondent's counsel. The ultimate question
for the Board's determination in this proceeding is whether the re-
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent has engaged in any of the unfair labor practices alleged
in the complaint. The petitioner is not a necessary party to the
proceeding because any order of the Board will run, not against the
petitioner, but only against the respondent.2 We hereby affirm the
Trial Examiner's ruling on the petitioner's motion for leave to in-
tervene.
During the course of the hearing and in his Intermediate Report,
the Trial Examiner made several other rulings on motions and on
objections to the admission of evidence. The Board has reviewed
the rulings of the Trial Examiner and finds that no prejudicial errors
were committed. The rulings are hereby affirmed.
On June 22, 1939, the Trial Examiner filed his Intermediate Re-
port, copies of which were duly served on the respondent and the
Union, finding that the respondent had engaged in and was engaging
in unfair labor practices affecting commerce within the meaning of
Section 8 (1) and Section 2 (6) and (7) of the Act, and recommend-
ing that the respondent cease and desist therefrom and take certain
affirmative action to remedy the situation brought about by the unfair
labor practices. Exceptions to the Intermediate Report and a brief
in support thereof were thereafter filed by the respondent. At the
close of the hearing, the Trial Examiner informed the parties of
their right to apply for oral argument before the Board in Washing-
ton, D. C., but none of the parties availed itself of that privilege.
The Board has considered the respondent's exceptions to the Trial
Examiner's Intermediate Report and the respondent's brief and, in
so far as the exceptions are inconsistent with the findings, conclu-
sions, 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
1. THE BUSINESS OF THE RESPONDENT
The respondent is an individual doing business as The Half Manu-
facturing Company having his principal office and plant in San
Antonio, Texas. The respondent is engaged in the manufacture,
sale, and distribution of women's wearing apparel consisting of cor-
duroy slacks, ladies' garments, pajamas, playsuits, robes, shorts,
shirts, wash dresses, and other wearing apparel. In his business
the respondent uses cottons, rayons, mixed cottons and rayons, but-
tons, and thread. Ninety-five per cent of these raw materials are
purchased in the State of New York and are shipped by boat to
Galveston or Houston, Texas, from which boats they are shipped by
2 National Labor Relations Board v. Pennsylvania Greyhound Lines, 303 U. S. 261;
National Labor Relations Board v. Pacific Greyhound Lines, 303 U. S. 272.
HARRY A. HALFF 671
rail or truck to the respondent's plant. The value of these raw
materials in 1938 amounted to $60,000.00. The value of the products
manufactured by the respondent at his plant in 1938 amounted to
$120,000.00. In 1938, the respondent sold and shipped 17 per cent
of his manufactured products to retail stores or customers outside
the State of Texas. The respondent employs four part-time sales-
men, who are paid on a commission basis and who cover the State of
Texas and parts of the States of Oklahoma, Alabama, Louisiana,
Mississippi, and Georgia. The manufactured products are distrib-
uted'by freight; express, truck •liiuie, and parcel post. On some of his
products the respondent uses the name "Evelyn," a trade-mark which
is registered with the United States Patent Office for use in com-
merce among the several States.
H. THE LABOR ORGANIZATION INVOLVED
The Union is an unaffiliated labor organization admitting to mem-
bership all production and maintenance employees of the respondent,
excluding clerical and supervisory employees.
III. THE 'UNFAIR , LABOR" PRACTICES
A. Background of the unfair labor practices
On August 12, 1938, Meyer Perlstein, Regional Director for the
Union, wrote "M. Halff Manufacturing Co." suggesting that the com-
pany enter into a contract with the Union. The letter was delivered
to the respondent. Gordon Edwards, the factory manager, received
the letter in the absence of Harry Halff and posted it upon the coin-
pany bulletin board because he felt that it concerned the employees.
The letter occasioned considerable talk among the employees. As a
result of the discussion, Mrs: Barbara Ann Williamson, an operator
who had worked for the respondent for 8 years, suggested that 'a
petition be drawn up in opposition to the Union. The employees
decided to adopt this suggestion. Williamson, together with Mrs.
Eicliman 'and Mrs. Teague, two other employees, drew up the peti-
tion, and Williamson had the respondent's bookkeeper type the peti-
tion in the plant during the noon hour on August 22, 1938. The
petition read as follows :
The employees of Halff Manufacturing Company, 345 E.
Commerce, are satisfied with the present working conditions in
this factory, and with our present salaries. We are opposed to
joining the International, Ladies' Garment Workers Union and
ask that we not be forced to join. May we have the protection
of the people of San Antonio.
672 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
Williamson circulated the typed petition among the employees
for several 'days. She. did this openly in the plant "during the noon
hour and mornings." On -August 27, 1938, W. F. Hanke, the book
keeper ,for M., Halff : and, Brothers, a corporation whose. stock is
largely owned by the respondent's family, and,. who, apparently is.
also an employee of the respondent, appeared at the respondent's
factory: at Williamson's request. during working hours and took the
acknowledgement of all the signers of the petition. , The petition
was signed. by practically every operator in the plant. Williamson
was' never reprimanded for any of her activities in connection with
the petition, but the record does not affirmatively show that the
respondent or his agents had knowledge of such activities.
After the petition was completed Mrs. Williamson tried without
success to have it broadcast over the radio. However, she was able
to secure its publication in a San Antonio newspaper. Thereafter,
there was no concern among the employees .with. regard to the Union
for a period of several months. .
B. Interference, restraint, and coercion
Juanita Norris and Margaret Cannon applied to the respondent
for employment on January, •18 and, 19, 1939, .respectively. They
were interviewed by Edwards, the factory manager, who asked each
if'she was a :member of the Union. Norris replied that she was not,
that she had "applied for membership" but had not turned in her
card. Cannon admitted that she' was a member of the Union. In
the conversation ensuing Edwards told Cannon, "Yes,' I can give you
a job, but I don't want you to talk unionism to the girls in the shop
because I don't want a union, shop." Both Norris and Cannon
started to work on January 23, 1939. '
Edwards testified that he did not know whether he had asked
Norris whether she was a member of the Union. He admitted, how=
ever, that he questioned Cannon as to her membership in the Union;
but denied that he told her not to talk unionism to the employees.
In the light of the entire record, the testimony of Norris and Can-
non, and the fact that the Trial Examiner, who from his observation
of the demeanor of the witnesses had an opportunity to form a trust-
worthy opinion of their credibility, rejected Edwards' denial, we
are satisfied, that -Edwards made, the statement attributed to him by
Cannon....
Rebecca Taylor, educational director and organizer for the Union,
attempted to, induce the respondent to sign a closed-shop ;contract
with. the Union on January 21 and 28, 1939. She. asked for an
answer by January 31. Halff stated that he would be glad to con-
sider the matter but that he could not give her an answer by January
. HARRY A. HALFF 673
31. Taylor :evaded any commitment, as. to the number of the re-
spondent's. employees who belonged to the Union, stating that it was
immaterial since all of, the employees would join the Union if the
respondent entered into a closed-shop contract with the Union.
On January 31, 1939, it became known that the Union was going
to picket the .respondent's plant within the. next few days. That
afternoon, shortly after the operators had returned to work from
lunch and after Halff and Edwards had gone out to lunch, William-
son arose from her machine, ordered the designer, Mrs. McAbee,
to turn, off the power for the machines, and called the operators
to her. After they had gathered in the center of the plant she told'
them that they were going to have the same trouble with the Union
that they had last year; that she wanted to know how the girls felt
about the Union; and that she personally did not want to join.
Several other employees spoke against the Union at the same time.
It was decided to circulate a petition to prevent the respondent from
"signing up" with the Union. Mrs. Grabowski, a supervisory
employee of the respondent,' who had been circulating through the
plant instructing the girls in their work just prior to the.time when
the power was turned off and who was then seated at her desk, got. up
to find out what was wrong when the power went off. Ordinarily,
she turned the power on and off. Grabowski saw Mrs. Williamson
talking to the girls but returned to - her desk without attempting to
stop the meeting, because, as she testified, Edwards had previously
instructed her "not to- take any part in this [discussion concerning
the Union] whatever." When Mrs. Williamson ' finished her talk
the ien' ployees . returned to work: The meeting lasted about 30
minutes. Mrs. Williamson, aided by Mrs. McAbee, then prepared a
petition-in longhand, which she asked the bookkeeper to type for her.
The bookkeeper told Halff that the girls had asked her to do some
typing: for them and received permission to do the work requested.
At the time Halff gave the bookkeeper permission to do the typing
he did not know what was to be typed. The bookkeeper typed the'
petition on company stationery and returned it to Williamson. The
petition, dated January 31, 1939, read as follows :
We, the undersigned, have organized to stand together against
the Union. If Halff Manufacturing Co. cares to sign up with
the Union, we will all walk out. -
3 There was some conflict in the testimony as to whether Grabowski was- a "forelady" or
an "instructor ." Half referred to her by both titles . It is clear , however, that irrespec=
tive of her title, she was a supervisory employee . Her duties included assigning work,
instructing employees , correcting employees , planning operations , reporting on inefficiency,
and helping Edwards to fix prices . Although she had no authority to hire or discharge,
she was in charge of the plant in the absence of'Flalf and Edwards. Half recognized her
identity with the management. ' Aside from . Edwards , she was the only employee instructed
not to participate in -the activities of the Union. '
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Williamson then circulated the petition in the plant openly from
operator to operator for a period of about 30 minutes. All of the
operators but one signed the petition. Grabowski was present
instructing the girls about their work while the petition was being
circulated. She raised no objection to such- activity. ' When- the
petition^was>.. completed Williamson gave it to Edwards,:.. who
in turnK.gave_it„to..Halff.
Grabowski:; reported' the meeting to Halff and Edwards when they
returned from lunch. Neither Halff nor Edwards knew that the
petition was being circulated on the afternoon of January 31. How-
ever, none of the employees was reprimanded by Halff or Edwards
for taking part in the meeting or circulating the petition, and none
of the hourly paid employees had a deduction made from his pay
for the time spent in these activities.
On February 1, 1939, the Union commenced picketing the respond-
ent's place of business. At the same time Cannon, according to her
own testimony, "walked out on a strike." None of the other
employees joined her.
The respondent had a Coca-Cola cooler in the plant under which
was kept a bucket into which the melted 'ice drained. It was the
ordinary practice in the plant for the porter or Edwards to empty
the bucket each morning by pouring the water out of a window onto
a tin awning or roof extending over the sidewalk in front of the
respondent's plant. The roof sloped towards the building, and a
gutter along the edge of the building carried the water to the ground.
During the picketing, which was still in progress at the time of
the hearing, Edwards emptied the bucket of water onto the roof
on one occasion in such a manner that some of the water fell on
Cannon and a police officer,. one Butler, who were standing just to
the side of the roof. Butler -immediately went. upstairs in. the .
respondent's plant and requested that the water be disposed of in
some other manner thereafter, as he had been hit by the water on a
previous occasion.. Edwards agreed to comply with his request. A
disinterested witness, who was standing across the street, testified
that Edwards was "laughing" as he threw the water towards the
people below. Edwards testified that he had no intention of inter-
fering with the people on the sidewalk when he poured the water out
of the window. Prior to the hearing, Edwards was acquitted of
assault for throwing water in a proceeding arising out of this
incident in a State court of Texas. At the time Cannon was struck
by the water she was not picketing. We find that the respondent
did not interfere with union activity as a result of Edwards' actions
in emptying the bucket of water.
On February 10, a Field Examiner for the Board investigated the
charges against the respondent which had been filed by the Union.
HARRY A. HALFF 675
The Field Examiner explained to the respondent that the meeting
of January 31 in the plant on company time was an unfair labor
practice . In response to this information Halff instructed William-
son that no more meetings could be held in the plant on company
time.
On February 28, just after the lunch hour, Hollis Williams, the
cutter, turned off the power for the machines at the direction of.
Williamson . Williamson then called the operators to her machine-
and asked why they did not express themselves concerning their feel-
ings toward the Union . She also asked whether some of them had`.
weakened and wanted to go over to the Union . The operators
unanimously expressed their opposition to the Union . One of the
operators suggested that a committee be appointed so that the em-
ployees who were afraid to speak in the group could speak to an in-
dividual member of the committee. This suggestion was adopted.
Mrs. Williamson and Mrs. Eichman, a presser, were selected as
"leaders," and they in turn selected three or four other employees to
serve on the committee . The committee never functioned.
Halff and Edwards were at lunch during the meeting of February
28. Grabowski was in the plant at the time but was not present at
the meeting . She heard about the meeting later and reported the
matter to Edwards. Edwards took no disciplinary action.
On the morning of March 1 , 1939, a large cake was delivered to
the respondent 's plant. Edwards informed the delivery boy that the
respondent had not ordered a cake and asked that it be taken back.
Later the same morning the cake was redelivered together with a
note indicating that it was for the employees . The note read as
follows :
To the Half Workers:
Congratulations on completing a month of most success-
ful resistance to a threat to your Americanism and your
independence.
We are watching and cheering for you.
( Signed) A GROUP OF Youn ADMIRERS.
The cake itself bore the following inscription : "Keep up the good
work. Hold the line." The donor or donors of the cake have
remained anonymous.
Half had the cake brought into the factory. During the noon
hour Williamson suggested that the employees have their picture
taken with the cake and the note which accompanied it. Arrange-
ments for taking the picture were made with Halff's knowledge and
without objection by him. The picture was taken in the plant dur-
ing working hours. Halff was at lunch at the time, but Grabowski
watched the employees line up for the picture. The employees
(676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
;ordered copies of the picture through Edwards and paid him for
them. They made up the time consumed by the picture taking of
their own volition.
At Edwards' suggestion and with Halff' s permission the power
-zva.s turned off at 4 o'clock in the afternoon and the employees ate
the cake and drank coffee furnished for the occasion by the respond-
ent. Halff, Edwards, and Grabowski were all present and took part
in the ."party" which lasted for about 20 minutes. The note which
accompanied the cake was posted on the company bulletin board for
several days after the "party"
On the morning of March 6 shortly before work commenced Mrs.
Williamson called the employees around her and told them about a
visit she had had from two union organizers . She said that she re-
sented them trying to influence her to join the Union, and that she had
become very "mad" at them because they had parked their car in
front of her door with a Mexican in it. Another operator, Durbin,
also told of a visit she had had from a union organizer . The meet-
ing continued about 10 minutes past the time when work ordinarily
.started. Half and Edwards had not arrived at the plant yet, but
,Grabowski was present. Grabowski did not say anything to the
employees.
On March 16, 1939, after investigation of the charges filed by the
Union against the respondent in the present case, a Field Examiner
for the Board informed Halff that any meeting in the plant either on
company time or on the employees' own time would be prejudicial.
Halff.,instructed Edwards and Williamson that no meetings were to
be held in the plant.
A few days before March 20, Williamson told Halff that the em-
ployees were going to formulate petitions to send to the Board and
to the Governor of Texas and asked what he thought about it. Halff
replied that she was at liberty to do anything she wanted to. Mrs.
Williamson and Mrs. Eichman drew up the petition and had it typed
at Williamson's home. On March 20 Williamson put the petition on
the cutting table in the plant. As the employees came in from lunch
she had them sign the petition. This was done openly. The petition
Tead as follows :
MARCH 20, 1939.
We, the employees of the Halff Manufacturing Co., do hereby
protest the efforts being made by the International Ladies Gar-
ment Workers Union to force us into their union by picketing,
intimidation, and threats. We are satisfied with our working
conditions, and can see no advantage to ourselves'in joining this
union.
We object to being constantly harassed by representatives of
the union (none of whom have ever worked with us), against
HARRY A. HALFF 677
which we have no recourse at law. There are no members of
the union in our plant, and none of us are on strike.
If change in the Wagner Labor act, city ordnance, or any other
law will prevent the annoyances and abuse to which we are now
being subjected, me are unanimously in favor of it.
The petition was signed by all : oft the employees. Photostatic copies
were sent to the Sixteenth Regional Office of the Board, to the Gov-
ernor of Texas, and to Congressman Kilday of Texas. Williamson
was not reprimanded for circulating the petition.
On March 31, 1939, the respondent filed suit against the Union for
an injunction to prevent the Union from picketing, from interfering
with the respondent's employees, from making false statements, from
interfering with the respondent's business, etc. On the same day
Mrs. Terry, an employee of the respondent, secured permission from
Ha.nke, the bookkeeper for M . Halff & Brothers , to use its building
located across the street from the respondent's factory for a meeting
of the respondent's employees to be held that afternoon. Terry then
called Travis B. Morsuncl, the respondent's attorney in the injunction
proceeding, to see if there was any way in which the employees could
assist in the injunction suit. When Morsund told her that the em-
ployees could intervene, Terry asked him to come to a meeting of the
employees that afternoon and explain it to them . Morsund agreed
to do so. Thereafter, Terry informed all of the employees of the
meeting. She did this during working hours while carrying out her
duties as an inspector, which took her throughout the plant. That
afternoon all of the employees, including Grabowski, walked across
the street from the factory to the building of M. Half & Brothers
and attended the meeting. Edwards accompanied the employees, but
Morsund refused to allow him to attend the meeting. Morsund
brought a court reporter to the meeting with him, explaining to the
employees, "He is here to take down what I say because we may have
to answer for that some day."
The meeting began at 5:15 p. m. although the employees were
supposed' to work until 5 :18 p. in. Almost at the outset of the meet-
ing Morsund stated :
I have seen the expressions that you made to the city council
not long ago when you told them you did not wish to join the
union and asked the city council to give you some relief.4 I take
it that most of you are of that view or you would not be here.
Morsund then explained that the employees could intervene in the
injunction case either on the side of the Union or on Mr. Halff's
* Morsund was referring to the employees ' petition of March 20, 1.939 , which has been
discussed above.
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
side. He stated that the employees' prayer "need not necessarily be
the same as Mr. Halff's. Your prayer can be that the picketing is
-annoying •to. you ... " He then stated that he would prefer that
the employees get some attorney "not connected like. I am with Mr.
Halff" to take their case. He advised that a committee be appointed
to pick out an attorney. He suggested that they have the attorney
they selected "speak to me and I will see what is to be done." He
assured the employees that "whether you enter into this lawsuit or
whether you don't enter into this lawsuit it will absolutely have no
effect on your standing in this factory."
The employees followed the advice given them by Morsund. - They
appointed a, committee, which selected an attorney. TheY, intervened
in the injunction proceeding. Their petition for intervention was
copied for-the. most part directly from Halff's original complaint, a
.copy, of the complaint having been secured by. their attorney from
Morsund. . Grabowski joined in the intervention, as did Hanke.
When Edwards learned what attorney the employees had selected,
he authorized the.attorney to represent him in the proceeding. After
so authorizing the attorney, he told the porter that he had joined
in the intervention. The porter. then requested. that he be included..
The porter was included in, the intervention.
The complaint alleged that the respondent joined and participated
in the activities of the Associated Employers, Inc., thereby con-
tributing to and assisting in the, preparation and dissemination of
anti-union propaganda. The Trial Examiner found that the evidence
adduced did, not sustain the allegations of the complaint in this
regard. The Union did not except to the Trial Examiner's finding.
We agree with the Trial Examiner's finding and shall order that the.
allegations,of the complaint be dismissed in this regard.
.The, complaint also alleged that the respondent encouraged the
formation of an organization among his employees known as The
Employees of The Half Manufacturing Company to oppose the
Union.. The Trial Examiner found that no such organization. was_
ever formed, and that the evidence.did not.sustain the allegations of'
the complaint. The Union did not except to the Trial Examiner's
findings. We, agree with the Trial Examiner's findings and shall
order. that the complaint be dismissed in this regard.
.We find that the respondent, questioned prospective employees as.
to their union affiliation, passively permitted his employees to hold
meetings and circulate petitions on company property both during
working hours and on the employees' own time for the purpose. of
discouraging membership in and expressing opposition to the Union,b-
L Swift S Co. v. National Labor Relations Board), 106 F. (2d) 87.
HARRY A. HALFF 679
furnished his employees with material support in carrying on their
anti-union activities, permitted his employees to hold an anti-union
"party" on company property during working hours and himself
participated in the same, and encouraged and aided his employees
in intervening in an injunction proceeding against the Union. We
find that'the respondent, by virtue of these acts, and various other
acts described above, has interfered with, restrained, and coerced his
employees in the exercise of their right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purposes of collective bargaining and other mutual
aid and protection as guaranteed in Section 7. of the Act.
C. The respondent's plea o l settlement estoppel, and double jeopardy
On January 30, 1939, the Union filed charges 6 against the respond-
ent alleging that the respondent. was engaging in unfair labor prac-
tices, 'within the meaning of Section 8 (1) of the Act.7 A Field
Examiner of the Board investigated the charges on-February 10,
1939. Thereafter various communications were exchanged between
the respondent and the Sixteenth Regional Office in an attempt to
settle the charges filed by the Union oil January 30 without the
necessity of a- formal hearing. On February 24, 1939, Half informed
the Regional Director by letter that on February 23 he had posted
a notice in the form requested by the Regional Director. The notice
read as follows :
STATEMENT OF THE HALFF MANUFACTURING COMPANY
At: the request of Dr. Edwin A. Elliott, regional director of
the Sixteenth Region of the National Labor Relations Board, it
is agreed that :
1. That it will not in any manner interfere with, restrain or
'coerce its employees'in the exercise of their rights to self-organ-
izat.ion, to form, join or assist labor organizations, to bargain
collectively through' representatives of their own choosing, and
to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection.
2. That it will not discourage membership of its employees in
the International Ladies' Garment Workers Union, or any other
labor organization, by discrimination in regard to hire or tenure
of employment or any term or condition of employment.
B Case No . XVI-C-389.
7 The charge also alleged that the respondent had engaged in unfair labor practices,
within the meaning of Section 8 (3) of the Act. This allegation has not been the subject
of controversy in this proceeding, and no further reference will be made to it.
247-383-40-vol. 10-=44
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. That it will post copies of this statement in its plant-one
of which copies will be on the bulletin board-and that said
notices will remain posted for a period of at least sixty (60) days
from the date of posting.
HALFF MANUFACTURING COMPANY,
By [s] HARRY A. HALFF.
Dated : 2/23/39.
The notice remained posted for a period of at least " 60 `clays' Oil
March 4, 1939, the Regional Director wrote' to the respondent as
follows :
This is to advise you that pursuant to the terms of settlement,
investigation of the charge in the above matter [Case No.
XVI-C-389] has been discontinued.
Further action in the above matter is not contemplated by this
office at this time.
On March 13 and April 13, 1939, respectively, the Union filed a
charge and,an'amended. charge against the respondent alleging that
he was engaging in unfair labor practices, within the meaning of Sec-
tion 8 (1) of the Act. The latter charges, which form the basis of the
present proceeding, refer to certain activities of the respondent which
occurred, were investigated, and were discussed with the respondent
prior to the settlement of the original charges filed by the Union
on January 30, 1939.
The respondent contends in its answer to the complaint that on
or about March 4, 1939, the charges filed by the Union on January
30, 1939, were dismissed and settled pursuant to the terms of a settle-
ment agreement under which the respondent posted in his plant a
notice prepared and requested by the Regional Director; that be-
cause of said settlement the Board and the Union are estopped from
prosecuting the respondent on the same charges; and that to permit
such prosecution would amount to double jeopardy.
We find that the charges filed by the Union on January 30, 1939,
were settled by agreement between the Regional Director and the
respondent on February 23, 1939. On that ' day, the respondent-
posted the notice which the Regional Director requested. The notice
stated that the respondent "agreed" to refrain from certain activities
and that the notices would remain posted "at least sixty (60) days
from the date of posting." Even if the agreement was not con-
cluded on February 23, the respondent cannot seriously contend that
the Regional Director compromised any charges of unfair labor
practices occurring after that date. On the morning of February
23, the Regional Director telegraphed the respondent that a notice, he
proposed to post was "not corrective of unfair labor practices" and
HARRY A. HALFF 681
-that, therefore,'the notice suggested by the Regional Office should
be posted. The cleai implication from this telegram is that the
notice proposed.'by the Regional Director was "corrective of the
alleged unfair labor practices," and the respondent so urges in his
brief.. On the same day that the respondent received this telegram
he posted the notice requested by the Regional Director. As the
notice was intended. by the parties to be corrective of the alleged
unfair labor practices, it could only-have been posted in consideration
for a promise by the Regional Director to compromise the charges
of unfair labor practices filed up to that time. We find that the
agreement compromised only those charges that the respondent had
engaged in unfair labor practices, within the meaning of Section
8 (1) of the Act, which resulted from activities engaged in by him
prior to February 23, 1939.
The respondent contends that the Board is estopped from pro-
ceeding on the matters covered by the charges that were settled, and
that, further, as a matter of policy it is undesirable for the Board
to proceed' on such matters. While we do not believe that the Board
is estopped from proceeding on the charges that were settled, we"
agree that the Board, in its discretion, might, as a matter of policy,
give effect to the settlement agreement. In the past we have stated
that effective administration of the Act requires that the Board's agents
have the respect and confidence of labor organizations and employers
with whom their work brings them in contact, and, in some cases,
have held that the effectuation of the policies of the Act required
that effect, be given to settlement, agreements. such as the one under
consideration.8 The question now before us for determination is
whether such a doctrine should be applied under the circumstances
of the present case. We do not think so. The respondent undertook
as a part of the settlement to do three things, namely, to refrain from
interfering with, restraining, and coercing his employees in the
exercise of the rights guaranteed to them in Section 7 of the Act;
to refrain from discouraging membership in the Union by discrim-
inating against his employees with regard to hire or tenure of em-
ployment or, any tern or condition- of employment; and to post
notices stating that he would refrain from the afore-mentioned activi-
ties and keep said notices posted for a period of 60 days. The re-
spondent has not lived up to its undertaking. We have found that
the respondent, on February 28, March 1, 6, 20, and 31, engaged in
activities which interfered with, restrained, and coerced his em-
8 Matter of Shenandoah -Dives Mining Company and International Union of Mine, Mill
and Smelter Workers, Local No . 26, 11 N . L. R. B. 885: Matter of Cadchaux Slugars,,
Inc. and Sugar Mill Workers ' Union, Locals No. 21177 and No. 2188 affiliated with the Ameri-
can. Federation of Labor,'12 N. L . R. B. 568 ; Matter' of Hope We6bin ,g' Compan . ie' and
Textile Workers Organi~'i-ng Committee of the C. I. 0.. Local No. 14, 14 N. L . R. B. 5F.
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees in the exercise of the rights guaranteed in Section 7 of the
Act. The foregoing activities occurred after the respondent had
agreed to refrain from such activities on February 23. Moreover,
the activities occurring after February 23 were similar , and in some
instances the same, as the activities he had engaged in prior to
February, 23. Under the circumstances, we find that it will not
effectuate the policies of the Act to give effect to the settlement agree-
ment.9 We shall therefore disregard it.
The respondent also contends that to permit him to be prosecuted
on the basis of the charges which have been settled "would amount
to double jeopardy." The respondent has not explained just why
this would be so. The doctrine of "double jeopardy," based on a
prohibition in the Fifth Amendment to the Constitution, is applicable
only to criminal proceedings, and proceedings under the Act, not
being punishable by fine or imprisonment, are not within its scope.
If the respondent is contending that the Board cannot proceed on
the original charges because they are res adjudicata, we think his
Argument is without merit. The original charges were dismissed
before hearing was reached and without an opportunity for adjudi-
cation of the merits.'°
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III, above, occurring in connection with the operations of the respond-
ent described in Section I, above, have a close, intimate, and sub-
stantial relation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and obstructing
the. free flow of commerce.
Upon the basis of the foregoing findings of fact and the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. International Ladies' Garment Workers' Union is a labor organ-
ization, within the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing his 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.
Matter of Picker _Y-Ray Corporation . Waite Manufacturing Division ., Inc. and Interna-
tional Association of Machinists , 12 N. L. R. B. 1384; Matter of Ingrann Mann fact wring
Company and Textile Workers Organizing Committee, 5 N. L. R . B. 908; see also , Matter
of Oodohaux Sugars , Inc. and Sugar Mill Workers' Union, Locals No. 21177 and No. 2182
affliated with the American Federation of Labor , 12 N. L. R. B. 568; and Matter of
Emsco Derrick and Equipment Company ( D i B Division ) and Steel Workers Organizing
Committee, 11 N. L . R. B. 79.
io Matter of Ingram Manufacturing Company and Textile Workers Organizing Committee,
5 N. L. R. B. 908.
HARRY A. HALFF 683
3. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
ORDER
- Upon the-basis of the -above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the`National -Labor Relations Board.hereby orders .that the
respondent,- Harry A. Halff, doing business as The Halff Manufac-
turing Company, San Antonio, Texas, and his agents, successors,
and assigns, shall:
1. Cease and desist from in any manner interfering with, restrain-
ing, and coercing his employees in the exercise of the right to self-
organization, to form, join, or assist the International Ladies' Gar-
ment Workers' Union or any other labor organizations, to bargain
collectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bargain-
ing or other mutual aid and protection, as guaranteed in Section 7
of the National Labor Relations Act.
2. Take the following; affirmativeF action;;,which- the`,>Board3`finds
will effectuate the policies of the Act :
(a) Immediately post in conspicuous places at his plant and main-
tain for a period of at least sixty (60) consecutive days from the
date of posting, notices to his employees stating that the respondent
will cease and desist as set forth in paragraph 1 of this Order;
(b) Notify the Regional Director for the Sixteenth Region in
writing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.
- AND IT IS FURTHER - ORDERED that the complaint against the respond-
ent be, and it hereby is, dismissed in so far as it alleges that the
respondent, has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act, by encouraging the
formation of an . organization --known- as, The. Employees of Half
Manufacturing Company, by his affiliation with and contribution of
assistance to Associated Employers, Inc., and by attempting to dis-
courage picketing by the Union by throwing water on the pickets.