The Halff Manufacturing Co.

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.