Brophy Engraving Co.

National Labor Relations Board - Board Decisions

May 21, 1951

94 N.L.R.B. 719 (N.L.R.B. 1951)

BROPHY ENGRAVING COMPANY 719
All production and maintenance employees at the Employer's New
York City plant, excluding office and clerical employees, technical and
professional employees, and supervisors as defined in the Act.
5. On February 26, 1951, Local 430 of the Petitioner made a demand
for recognition and the Petitioner simultaneously filed the instant
petition. On February 28, 1951, the Intervenor requested recognition.
The Employer asserts that he has declined to recognize either union
because of these conflicting claims. On March 21, 1951, 16 employees.
struck without explanation, and most, if not all, of them were replaced
during the strike, which appears to have ended April 9, 1951. The
Petitioner contends that the strike was caused by the Employer's al-
leged unfair labor practice in refusing to recognize the Petitioner,
and that the strikers are therefore entitled to reinstatement and should
be deemed eligible to vote in the election herein directed. However, as
no charges have been filed, or complaint issued, alleging that the.
strikers were unfair labor practice strikers, we are required to find
that they are economic strikers, and that to the extent that they have
been permanently replaced, they are ineligible to vote.2 As the extent
to which the strikers have been permanently replaced was not fully
litigated at the hearing, we permit the strikers as well as their replace-
ments to vote, subject to the challenge.3
[Text of Direction of Election omitted from publication in this,
volume.]
Nimes Squa2e Stores Corporation, 79 NLRB 361.
s The Pipe Machinery Company, 76 NLRB 247.
BROPHY ENGRAVING COMPANY and DETROIT PHOTO-ENGRAVERS' UNION
No. 12, INTERNATIONAL PHOTO-ENGRAVERS ' UNION OP NORTH AMER-
ICA, A. F. L. Case No. 7-CA-259. May 21,1951
Decision and Order
On November 28, 1950, Trial Examiner John H. Eadie issued his
Intermediate Report in this case, finding that the Respondent had
engaged and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. He also found that the Respondent had not engaged
in certain other unfair labor practices, and recommended that the
complaint with respect thereto be dismissed. Thereafter, the Re-
spondent, the General Counsel, and the charging Union filed excep-
tions to the Intermediate Report and the Respondent filed a brief in
support of its exceptions.
94 NLRB No. 104.
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board I has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed.2 The Board has considered the
Intermediate Report, the exceptions 9 and briefs, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the following modifications
and additions.
1. The Respondent contends that it is not engaged in commerce
and that it will not effectuate the policies of the Act for the Board
to assert jurisdiction. The record shows that in 1949 the Respon dent's
purchases exceeded $11,000, of which about 18 percent was shipped
to the Respondent from outside the State. Its sales during that year
exceeded $116,000. The Respondent admits, moreover, that in 1949
it shipped directly to points outside the State of Michigan, products
valued at $3,558:96, or 14 percent of the minimal dollar volume re-
quired by the Board for asserting jurisdiction on the basis of out-of-
State shipments 4 The record further establishes that in 1949 the
Respondent also made sales totaling $48,792.16 essential to the opera-
tion of enterprises within the State which annually ship more than
$25,000 worth of goods out of the State. This figure equals 97 percent
of the minimum required under that standard.5 As these percentages,
in combination, total more than 100 percent of the requirements for
asserting jurisdiction under the two standards involved, we find, as
I Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Members Houston, Rey-
nolds, and Styles].
z As the Trial Examiner made no findings which depend upon uncorroborated hearsay,
we find no merit in the Respondent's contention that the Trial Examiner erred in per-
mitting the introduction of hearsay evidence
, The Respondent, in its exceptions, renewed its motion to dismiss the complaint on
the ground that "the charge and subsequent complaint are not supported by persons
aggriesed, in the sense contemplated by Section 10 (b) of the National Labor Relations
Act, as amended " The motion is hereby denied Under Section 102 9 of the Board's
Rules and Regulations, Series 6, a charge may be made by any person," as defined in
Section 2 (1) of the Act Accordingly, it is immaterial that the "person" filing the
present charge was a "labor organization," rather than the alleged discriminatees, and
that there is no evidence showing that the individuals affected by the alleged unfair
labor practices had authorized the filing of the charge or the maintenarice of the proceeding
The Respondent also excepted generally to the Trial Examiner's credibility findings
The material facts in this case do depend, to it large extent, on the determination of
the credibility of the witnesses However, we have considered the Trial Examiner 's reso-
lutions of conflicting testimony on such facts «rth regard for the consistency and inherent
probabiliti' of the testimony as a whole and the fact that the Trial Examiner, not the
Board, observed the Atnesses, and are satisfied that the Trial Examiner' s resolutions
are supported by the clear preponderance of all the relen ant evidence See Standard Dry
Wall Products, Inc . 91 NLRB 544, enfd 188 F 2d 862 (C A 3) Accordingly we find
no merit in this contention.
Stanrslans Implement and Hardware Company, Lrmrted, 91 NLRB 618
s Rollout Tree Lumber Company, 91 NLRB 635 We find no merit in the Respondent's
contention that material used by its customers in producing advertising literature,
insti tution booklets, sales and billing slips, and "house organs" is not "necessary to
the opeiation" of such enterprises
BROPHY ENGRAVING COMPANY 721
did the Trial Examiner, that the Respondent is not only engaged in
commerce within the meaning of the Act, but that it will also effectuate
the policies of the Act to exercise jurisdiction here.6
2. The Trial Examiner found, and we agree, that the Respondent
interfered with, restrained, and coerced employees in the exercise
of the rights guaranteed in Section 7, thereby violating Section 8
(a) (1) of the Act. However, we base our finding solely upon the
following conduct by Brophy, the Respondent's president : 7
a. Brophy's asking employee Dueweke, in March 1949, whether he
had had "any contact from the Union," and, on April 18, 1949, whether
he had had "any talks with the Union."
b. Brophy's asking employee Maghielse whether he or any of the
other employees had been approached by, or received literature from,
the Union.
c. Brophy's speech to the assembled employees on April 18, in which
he explained that Priewert had been dismissed that day because he
was a poisonous influence among the men; 8 promised that those who
did not join the Union would be "well taken care of" in that he would
"see to it" that they had jobs; and threatened to discontinue paying
for overtime lunch periods.9
d. Brophy's promise on April 18, 1949, to teach employee Ware
photography if the latter didn't become a member of the Union and
his question concerning Ware's "feelings toward the Union."
3. Like the Trial Examiner, we find that the Respondent discrimi-
nated against Alfred Priewert, in violation of Section 8 (a) (3) and
8 (a) (1) of the Act, by accelerating the date of his separation.
As detailed in the Intermediate Report, Brophy advised Priewert,
on or about March 31, 1949, that he would be laid off about 2 weeks
after his return to work from a leave of absence scheduled to begin
the next day. Priewert returned from this leave on Friday, April
8, 1949, and was told early Monday, April 18, that he was being let
go immediately because "something" had "suddenly come up."
Brophy had Priewert's time calculated and his check made out, In-
chiding pay through Wednesday, April 20, 1949, and 1 week's vaca-
tion pay. Priewert testified that on the day that he returned, Brophy
agreed that the 2 weeks' notice period would end April 22.
6 The Rutledge Paper Products , hac, 91 NLRB 625
' See Standard- Coosa- Thatcher Company, 85 NLRB 13558, and cases cited therein ;
Jacksonville Motors, lute, et al , 88 NLRB 181
8 We agree with the Trial Examiner that in the context of the speech as a whole,
"poisonous influence" was a clear iefeience to Priewert' s union activities and that Brophy's
statement indicated that similar reprisal would be directed against employees engaging
in union activities.
9It is immaterial that this thueat was not carried out Randolph Corporation , 89 NLRB
1490 , enfd as modified on other grounds , 187 F 2d 298 (C A. 7).
953841-52-vol 94-47
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Priewert, one of the first employees to talk "in favor of a union"
in the shop, applied for union membership in February 1949 and was
sworn into the Union on April 11, 1949. On April 14, 1949, he and
other employees met with Krey, the Union's business agent, and on
Friday, April 15, these and other employees again met with Krey to
sign applications for union membership. The record shows that on
Friday, April 15, Brophy decided to pay Priewert off on the following
Monday. That week end Brophy informed employee Maghielse,
while visiting him, that he was letting Priewert go the following
Monday because Priewart was causing a disturbance although he had
promised not to do so, and was a "poisonous influence on the men."
He then questioned Maghielse about union activities. He also told
employee Obermiller, while visiting his home, that Priewert had been
given a 2 weeks' notice on the condition that "he keep his nose clean,"
but that he was letting Priewert go when he came into the shop on
Monday morning because he was "spreading poison throughout the
shop." And, as noted above, Brophy also included this among the
reasons he offered after Priewert's discharge in the speech he made
to the employees on April 18, 1949.
Like the Trial Examiner we find that the references to "poisonous
influences," "disturbances," and "keeping his nose clean" can only
be construed as references to Priewert's union activities. We also
find, for the reasons noted by the Trial Examiner, that the record
fails to support the Respondent's contention that Priewert was dis-
charged earlier than anticipated because of lack of work. The se-
quence of events, the very revealing statements made by the Respond-
ent after Priewert's discharge, and the failure of the Respondent
satisfactorily to explain its action on any nondiscriminatory basis, all
combine to persuade us that, in accelerating the discharge of Priewert,
the Respondent was motivated by a desire immediately to rid itself
of the employee it considered to be the instigator of the union activity
which had suddenly come up in the plant, and to use that discharge
as an example to the other employees.10
4. We agree with the Trial Examiner that the discharge of employee
"Vartkiss Tertzakian violated Section 8 (a) (3) and 8 (a) (1) of the
Act.
During his speech on April 18, 1949, explaining Priewert's discharge,
Brophy stated that Priewert's "student," "the apprentice" (Tertza-
kian)11 had become a "little better than the instructor." Tertzakian
"The fact that the General Counsel does not contend that Priewert 's initial discharge
was discriminatory is irrelevant to a determination of the issue framed by the com-
plaint, whether the date of Priewert's separation was discriminatorily accelerated. See
Wiliam A Mosow, 92 NLRB No 254
"Although the Respondent does not designate employees as "apprentices " or "journey-
men," the record shows that the employees described themselves or their associates in
such terms.
BROPHY ENGRAVING COMPANY 723
testified , without contradiction, that Brophy told him at 4:30 p. in.
on the 18th in the presence of Soderquist , that he would be left alone
in the zinc department and that he should "keep up the good work."
That day, after work, Tertzakian met other employees who had ar-
ranged to take the union membership oath. These employees all met
Frey, the union business manager, and , with the exception of employee
Craig, whom the record establishes was particularly friendly with
Brophy, all took the membership oath. Craig refused saying he
wanted time to discuss the matter with his wife and with Brophy.
That evening , shortly after Tertzakian arrived home from the union
meeting, Brophy and his son, Rex, called at Tertzakian ' s house.
Brophy told Tertzakian that he was sorry to let him go , but the
Company lacked work; gave him a week's pay in lieu of notice and
delivered to him the personal belongings for which he would have
had to return to the plant. When Tertzakian again applied for work
on April 22 , Brophy again said that work was slack and that he there-
fore had no job for Tertzakian.
As an explanation for his sudden decision to discharge Tertzakian,
Brophy testified that the lack of work became apparent on the night of
April 18 . However, the record shows that the zinc etching department,
where Tertzakian was employed , had had more work than usual on
that day; there was work left over for the next day ; and, after the
18th, as before, two men worked in the department , putting in consider-
able overtime.
The circumstances surrounding Tertzakian 's discharge and the
untenability of the Respondent 's explanation are alone persuasive indi-
cations of the Respondent 's motive in discharging this employee. Any
doubt on that score is dissipated by the testimony relating to a conver-
sation, on about April 21, between employee Dueweke and Mrs.
Brophy, a director of the Respondent ( and its secretary) after
Tertzakian 's discharge , when Mrs . Brophy stated that she could not
understand how the men could think of a union when Brophy had
treated them so well and that she thought that Tertzakian would have
been able to replace Priewert had he not been "led astray" by Prie-
wert.12 Under all the circumstances we conclude , as did the Trial
Examiner , that Tertzakian , was discharged because of his union
sympathies and activities 13
11 In view of the admission inherent in this statement , we need not rely solely upon
inferences based on the size of the plant for evidence that the Respondent knew that both
Priewert and Tertzakian were leaders in the movement toward union organization among
the employees . See Supreme Bedding and Furniture Manufacturing Company, Inc, 93
NLRB 1616
"The fact that other employees who joined the Union at the same time were not dis-
charged is not, as the Respondent contends , a basis for inferring that his discharge
was nondiscriminatory See N L R B v Pennsylvania Greyhound Lines, 303 U. S 261.
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Remedy
We have adopted the Trial Examiner's findings that the Respondent
violated Section 8 (a) (1) and 8 (a) (3) of the Act. In the case of
Priewert, the Trial Examiner recommended no award of back pay,
apparently on the theory that the vacation pay which this employee
received at the time of his discharge more than equalled the 2 days'
back pay to which he is entitled. However, there is no evidence show-
ing that Priewert would not have received vacation pay at the time of
his discharge had the date of his separation not been accelerated. We
shall, therefore, not adopt the Trial Examiner's recommendation that
he be awarded no back pay. We shall order that the Respondent make
Priewert whole for any loss of pay he may have suffered by reason
of the Repsondent's discrimination against him, by payment to him of
a sum of money equal to the amount which he would have earned as
wages from April 20 through April 22, when he would normally have
been discharged, absent the, discrimination, less his net earnings during
that period.14
Order
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Brophy Engrav-
ing Company, Detroit, Michigan, its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Detroit Photo-Engravers' Union
No. 12, International Photo-Engravers' Union of North America,
A. F. L., or in any other labor organization of its employees by dis-
criminatorily discharging or refusing to reinstate any of its employees,
or in any other manner discriminating in regard to their hire and
tenure of employment or in regard to any term or condition of
employment.
(b) Interrogating employees "concerning union activities, promising
to benefit employees who refrain from such activities, threatening
reprisal against those who engage in such activities, or in any other
manner interfering with, restraining, or coercing its employees in the
exercise of the right to self-organization, to form labor organizations,
to join or assist any labor organization, 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, or to refrain from any or all such activity except to the
extent that such right may be affected by an agreement requiring
14 Cf. William A. ftosow, supra
BROPHY ENGRAVING COMPANY 725
membership in a labor organization as a condition of employment as
authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer to Vartkiss Tertzakian full reinstatement to his former or
substantially equivalent position, without prejudice to his seniority
or other rights and privileges.
(b) Make whole Alfred Priewert and Vartkiss Tertzakian for any
loss of pay each of them may have suffered by reason of the Respond-
ent's discrimination against each of them in the manner provided
in the Intermediate Report as modified in the reinecly section above.
(c) Post at its plant in Detroit, Michigan, copies of the notice
attached hereto and narked Appendix A 15 Copies of said notice,
to be furnished by the Regional Director for the Seventh Region, shall,
after being duly signed by the Respondent's representative, be posted
by the Respondent immediately upon receipt thereof and maintained
by it for sixty (60) consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Seventh Region in writing
within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply therewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed with respect to all other allegations.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership by our employees in
DETROIT PHOTO-ENGRAVERS' UNION No. 12, INTERNATIONAL PHO-
TO-ENGRAVERS' UNION OF NORTII AMERICA, A. F. L., or in any
other labor organization by discharging and refusing to reinstate
any of our employees, or by discriminating in any other manner
in regard to their hire and tenure of employment or any term or
condition of employment.
WE WILL NOT interrogate employees concerning union activities,
promise to benefit employees who refrain from such activities,
"In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be inserted before the words , "A Decision and Order ," the words,
"A Decree of The United States Court of Appeals Enforcing."
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
threaten reprisal against them who engage in such activities, or
in any manner interfere with, restrain, or coerce our employees
in the exercise of the right to self-organization, to form labor
organizations, to join or assist any labor organization, to bargain
collectively through representatives of their own choosing, and
to engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from any
or all such activities except to the extent that such right may
be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Sec-
tion 8 (a) (3) of the Act.
WE WILL offer to Vartkiss Tertzakian immediate and full rein-
statement to his former or substantially equivalent position with-
out prejudice to any seniority or other rights and privileges
previously enjoyed, and make Vartkiss Tertzakian and Alfred
Priewert whole for any loss of pay suffered as a result of the
discrimination against each of them.
All our employees are free to become, remain, or refrain from be-
coming members of any labor organization. We will not discriminate
in regard to the hire or tenure of employment or any term or condition
of employment against any employee because of membership in or
activity on behalf of any labor organization.
BROPHY ENGRAVING COMPANY,
Employer.
Dated----------------- By --------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report
Jerome H B) oolcs, Esq., for the General Counsel.
Beaarmont , Smith & Hai ris, by Charles Wright, III, Esq, of Detroit, Mich.,
for the Respondent
Mr. William A. Krey and k1r. Fred H. Balibach, of Detroit, Mich., for the Union.
STATEMENT OF THE CASE
Upon an amended charge duly filed by Detroit Photo-Engravers' Union No. 12,
International Photo-Engravers' Union of North America, A. F. L., herein called
the Union, the General Counsel of the National Labor Relations Board, respec-
tively called herein the General Counsel and the Board, by the Regional Director
for the Seventh Region (Detroit, Michigan), issued a complaint dated May 4,
1650, against Brophy Engraving Company, herein called the Respondent alleging
that the Respondent has enaged in, and is engaging in, unfair labor practices
affecting commerce within the meaning of Section S (a) (1) and (3) and Section
2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136,
herein called the Act.
BROPHY ENGRAVING COMPANY 727
With respect to the unfair labor practices, the complaint alleges that the
Respondent: (1) From on or about April 15, 1949, engaged in certain acts of
interference, restraint, and coercion; (2) after having given notice to Alfred
Priewert that his employment would terminate 2 weeks from the day he re-
turned to work from a leave of absence, on or about April 18, 1949, refused
to allow him to continue working until April 22, 1949, when the 2-week period
would have expired ; (3) on April 18, 1949, discharged Vartkiss Tertzakian ;
(4) on June 24, 1949, discharged Gerald Dueweke, Dennis Maghielse, and Charles
Ware ; and (5) refused to allow Priewert to continue working until April 22, 1949,
and discharged and refused to reinstate said employees for the reason that they
joined and assisted the Union and engaged in other concerted activities for
the purpose of collective bargaining and other mutual aid or protection.
On or about May 11, 1950, the Respondent filed an answer, together with
motions to dismiss the complaint, to strike from the complaint, and for a bill of
particulars The answer denied jurisdictional and unfair labor practice al-
legations of the complaint. The motions were referred to Trial Examiner
Horace A. Ruckel for ruling He denied the motions to dismiss and to strike,
and granted in part the motion for a bill of particulars.
Pursuant to notice, it hearing was held at Detroit, Michigan, from May 22
to June 14, 1950, inclusive, before the undersigned Trial Examiner. The General
Counsel and the Respondent were represented by counsel, and the Union by
its representatives. Full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues was afforded
all parties. At the opening of the hearing the General Counsel moved to amend
the complaint so as to allege an additional act of interference, restraint, and
coercion. The motion was granted over the Respondent's objection. The Re-
spondent reviewed its motions to dismiss and to strike. The motions were
denied. The Respondent then moved to dismiss the complaint upon jurisdictional
grounds and upon the ground that the Respondent had "not violated any pro-
vision of the" Act. Ruling was reserved on the motion to dismiss on juris-
dictional grounds. The motion to dismiss on the grounds that the Respondent
had not violated the Act was denied. When the General Counsel concluded his
case insofar as jurisdictional evidence was concerned, the Respondent renewed
its motion to dismiss the. complaint for lack of jurisdiction. The motion was
denied At the conclusion of the General Counsel's whole case, the Respondent
renewed all of its motions to dismiss the complaint. The motions were denied.
At the close of the ease, the General Counsel moved to conform the pleadings
to the proof, as to names, dates, and other minor variances. The Respondent
joined in the motion. The motion was granted. The Respondent again renewed
all of its motions to dismiss the complaint. Ruling on the motions was reserved.
The motions to dismiss are disposed of as hereinafter indicated.
All parties waived oral argument at the conclusion of the hearing. The Gen-
eral Counsel and the Respondent have filed briefs with the Trial Examiner.
After the close of the hearing, the General Counsel filed with the Trial
Examiner a stipulation correcting the transcript of the record. The stipulation
is signed by all the parties and is in the form of a motion to correct the record.
The motion is granted and, accordingly, it is ordered that the record be and
hereby is corrected so as to conform with said stipulation. The stipulation
is received in evidence and marked as Trial Examiner's Exhibit No. 1.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following:
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Brophy Engraving Company is a Michigan corporation, having its principal
office and place of business in Detroit, Michigan, where it is engaged in the
manufacture of photoengravings.
During the years 194S and 1949, Respondent's sales amounted to approximately
$161,182.87 and $116,846 32, respectively. The record discloses that the Respond-
ent's sales to concerns engaged in interstate commerce exceeded $50,000 during
each of the above years. Examples of such concerns are Fruehauf-Trailer Com-
pany, General Motors Corporation, lodent Chemical Company, Argus, Inc., The
Burkhardt Company, Drake Printing Company, and Nash-Kelvinator Company.
The uses made by the above companies of the engravings purchased from the
Respondent varied, but-in all instances were associated with the manufacture,
distribution, and sale of their pioducts. For example, Argus, Inc., used its
engravings in the printing of advertising literature, instruction books for the
various models of cameras produced, and price tags which were attached on
cameras or equipment. The Drake Printing Company used the engravings it
purchased from the Respondent in the printing of forms, advertising material,
labels, etc., for industrial concerns such as General Motors Corporation, Ford
Motor Company, and Kaiser-Frazer Corporation.
During the years 1948 and 1949, the Respondent's purchases were $24,264.70
and $11,038 74, respectively.' Approximately 18 percent of the 1948 purchases
represents direct shipments to Respondent from points outside the State of Michi-
gan. Approximately 13 percent of the 1949 purchases represents the same type
of shipments.
The General Counsel adduced considerable evidence concerning the Respond-
ent's business and its effect on interstate commerce. The facts in this connection
are not disputed. Discussion of this evidence in detail would not, in my opinion,
serve any purpose and would unduly burden this Report. Accordingly, I have
summarized above only the facts which I believe to be material'
As of April 15, 1949, the Respondent employed 19 persons, excluding officers
of the corporation. Of this number, 14 were photoengravers.
The Respondent contends that the Board does not have jurisdiction and that
it would not effectuate the policies of the Act for the Board to assert jurisdiction,
for the reason that any alleged effect of Respondent's business on interstate
commerce is remote and insubstantial and that its business is essentially local
in character.'
I do not agree with the Respondent's contention. Accordingly, I find that
the Respondent is engaged in commerce within the meaning of the Act and that
it will effectuate the policies of the Act for the Board to assert jurisdiction 4
The above figures include container deposits of $481 for 1948 and $560 80 for 1949
s A number of witnesses for the General Counsel testified as to the value of material
which was printed with the use of the Respondent's engravings Evidence of this type
does not appear to be material'under recent decisions of the Board Stanislaus Implement
and Hardware Co, Ltd, 91 NLRB 618; Hollow Tree Lumber Company, 91 NLRB 635.
3 Of Respondent's 1948 sales, engravings having a value of only $3,872 50 were shipped
by Respondent to points outside the State of Michigan. In 1949, the value of such ship-
ments amounted to $3,558 96.
4 See footnote 2, above.
BROPHY ENGRAVING COMPANY
II. TIIL ORGANIZATION INVOLVED
729
Detroit Photo-Engravers' Union No 12, International Photo-Engravers' Union
of North America, A. F. L., is a labor organiaztion which admits to membership
employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES 5
A. Background; sequence of events
The Respondent is a "family" corporation. Howard M. Brophy is a director,
president, and treasurer; Catherine Brophy (his wife) is a director and secre-
tary; and Rex Brophy (their son) is a director and vice president During
the war years from 1942 to 1945, the Respondent employed 5 photoengravers.
This number increased to 14 by April 1949. '
At all times mentioned herein, Frank Soderquist was "shop superintendent,"
He assigned jobs to the photoengravers and supervised their work. At times
lie did copper or zinc etching or other photoengraving work. Generally, how-
ever, his supervisory work required most of his time, and he performed manual
work only during rush periods or when demonstrating jobs to inexperienced
employees. He had authority to excuse employees from work and to direct
them to work overtime. During the absences of Howard Brophy from the plant,
Soderquist was in complete charge. Contrary to the contention of the Re-
spondent, I find that Soderquist was a supervisory employee within the mean-
ing of the Act.
Alfred Priewert worked in the Respondent's zinc etching department, Vart-
kiss Tertzakian worked under him as an "apprentice." On or about February
9, 1949, Tertzakian signed an application card for membership in the Union.
He told Priewert of his action. Priewert also made application for member-
ship in the Union on about February 17. Thereafter, Tertzakian and Priewert
discussed the Union with other employees.
On about March 31, Prewert told Rex Brophy that he would be absent from
the plant until about Wednesday of the following week as he had to go to Min-
nesota to visit his mother who was seriously ill. Later that same day he
was called to the office by Howard Brophy. Brophy told him that he would
have to discharge him because production was poor in the zinc etching depart-
ment, but that he could work.for 2 weeks after returning from the visit to his
mother. Priewert returned to work on April 8.
After working hours on April 14, a number of employees met William Krey,
business manager of the Union, and signed applications for membership in the
Union. Priewert, who had been sworn in as a member of the Union on April
11, also was present. The employees, including Tertzakian, met Krey again
on the night of April 15 Arrangements were made at this meeting for the
employees to be sworn in as members on April 25.
I There are numerous direct conflicts of testimony between witnesses for the Respondent
and witnesses for the General Counsel These conflicts are not detailed or discussed
herein The factual findings hereinafter related have been reconstructed by the under-
signed from the credited testimony of all the witnesses . For the most part , witnesses
for the Respondent have been discredited where direct conflicts in testimony occur.
Particularly is this so in the case of Howard Brophy, the Respondent's main witness.
Brophy's testimony is not plausible concerning a number of the incidents . Further,
his evasiveness as a witness almost amounted to refusal to answer questions propounded
by counsel . In a number of instances when answers to questions finally were elicited,
Brophy's testimony clearly was not worthy of credence
730 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD
On Saturday and Sunday, April 16 and 17, Howard Brophy visited the homes
of employees Dennis Maghielse and Paul Obermiller He told them, in sub-
stance, that he was going to discharge Priewert on the following Monday and
questioned them concerning the Union. Rex Brophy visited the homes of em-
ployees Ware and Salomonson on April 16. He questioned Ware concerning
"trouble brewing" at the plant.
At about 9: 30 a in on Monday, April 18, Howard Brophy discharged Priewert.
Later that same morning, Brophy directed the employees to assemble in the
main part of the plant. He then made a speech in which he gave his reasons
for discharging Priewert. Also, as will be hereinafter related and found, he
made references to the Union
After work on April 18, the employees including Tertzakian, went to the office
of the Union. Excepting Tertzakian and employee Earl Craig, all of the em-
ployees present were sworn in as members of the Union. Tertzakian previously
had become a member of the Union ; and Craig stated that before he would
join he first wanted to talk about it with his wife and Howard Brophy. At
about 10 p. in. that same night, Howard and Rex Brophy went to the home of
Tertzakian and discharged him.
B. later!erenee, restraint, and coercion
At sometime during the early part of -March 1949, Howard Brophy had a
conversation with employee Gerald Dueweke. The conversation took place in
the plant during working hours. Brophy stated that there appeared to be
"some unrest in the shop," and asked Dueweke if he knew the reason for it.
Dueweke replied that he had a "growing feeling of insecurity" insofar as his
position with the Respondent was concerned Brophy asked him if any particu-
lar person was responsible for his feeling. Dueweke answered to the effect that
he did not have any special person in mind, but that his feeling was due to
"general conditions " Brophy then questioned him as to whether or not he
had had "any contact from the Union" Dueweke told him that he had not
been approached by the Union "excepting for what seemed to me to be a form
letter for organizational purposes."
It is found that Brophy's interrogation of Dueweke concerning his possible
union activities constitutes interference, restraint, and coercion.
At about 3 p. in. on April 16, Howard Brophy called Maghielse's home. During
his conversation with Maghielse, Brophy asked him if he had been approached
by, or received any literature from, the Union. Maghielse in return asked
Brophy why he had "objections" to the Union. They then discussed the ad-
vantages and disadvantages of the Union with Maghielse indicating that he was
in favor of the Union. Toward the end of the conversation, Brophy asked him
if any of the other employees had been approached by the Union. When
Maghielse replied that some of the employees were in favor of the Union and
were joining it, Brophy said that he respected a man's opinions but that he
was going "to fight it (the Union)."
I find that Brophy's interrogation of Maghielse concerning union activities
constitutes interference, restraint, and coercion.
At about 8 p. in. on April 17, Howard Brophy visited Obermiller at his home.
Brophy was "angry" at the time and started the conversation by stating, "I will
not be coerced in this thing." When Obermiller asked him what he meant, he
said that in addition to all the discussion in the plant he understood that the
6 At the beginning of the above conversation, Brophy discussed Priewert's discharge.
This part of the conversation will be set forth hereinafter.
BROPHY ENGRAVING COMPANY 731
employees were receiving union literature and talking about the Union. Ober-
miller told Brophy that he did not know anything about such union activity,
but that because of the dissension he had thought about joining the Union.
Brophy then told him that he was going to discharge Priewert on the following
Monday morning and asked him if he thought it would be advisable to hold a
meeting of the employees on Monday "to straighten this thing out." Obermiller
advised him against holding such a meeting. Brophy said that he would close
the plant before he would have a "union shop"; that he would not have the
Union telling him how to run his plant; and that, when the Union comes in
the door, good will goes out the window." Brophy asked Obermiller for his
opinion concerning the cause of dissension among the employees. Obermiller
told him what he thought had caused the trouble' Brophy then stated that
when the Union secured wage increases or better working conditions in other
plants, lie had tried to meet or surpass them; and that if the employees desired
it, he would decrease their weekly hours, from 40 to 37Y2.
I find that by the above statements Brophy interrogated Obermiller concerning
his union activities, threatened reprisal if the employees organized the Union,
and promised benefits if the employees would forego the Union; and that he
thereby interfered with, restrained, and coerced his employees. While Brophy
used the term "union shop" in his threat to close the plant, it is clear from all
the evidence that he was not referring to a contractual relationship but to
recogniton of the Union.
At Howard Brophy's direction, the employees assembled in the main part of
the plant during the morning of April 18. Brophy told them, in substance, that
he had discharged Priewert; that "something was wrong" in the plant; that
he did not know what was causing the trouble but thought that Priewert had
been "spreading poison"; that he thought the Union had something to do with
the unrest in the plant; that if the Union organized the plant, "good will would
go out the window" ; that the employees did not need "anybody outside to help
us work together" ; and that those who did not join the Union would be "well
taken care of" as he "would see to it" that they obtained jobs if they quit the
Respondent's employment. Toward the end of his speech, Brophy asked the
employees if they had any comment to make. Obermiller stated that he was
considering "very strongly of joining the Union because of all the dissension and
everything in the shop" and for his own security Dueweke expressed a desire
to talk to Brophy in private in the latter's office As the employees were about
to disperse, Brophy told them that thereafter they would no longer be paid
for any time required for eating when they worked overtime.'
It is found that by making the above speech Brophy interfered with, restrained,
and coerced the employees. In making this finding, I rely on the direct and
implied threats of reprisal, taking his speech as a whole, because of the employ-
ees' activities on behalf of the Union The evidence does not disclose that the
practice of paying for an eating period during overtime hours was discontinued,
in fact. However, this is not material to the finding since Brophy's statement
may be considered as a threat to do so. Further, I also rely on the promise of
benefit held out by Brophy to employees who refrained from joining the Union.
As the employees were returning to work after the meeting discussed above,
Obermiller made a remark to Soderquist concerning Brophy's overtime state-
7 Brophy and Obermiller discussed among other things the division of overtime In
the finishing and proofing department It is undisputed that Obermiller and Dueweke
were dividing such overtime work to the exclusion of Maghielse.
S It was the custom in the plant for the employees not to punch the time clock during
overtime hours when they left the plant in order to eat
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment. Employees William Rein, Dueweke, and Tertzakian also were present.
Soderquist replied, "Well, you fellows all brought it on yourselves. . . . What-
ever you get you deserve."
It is found that Soderquist's statement, as an implied threat of reprisal, con-
stitutes interference, restraint, and coercion.
After his speech on April 18, Brophy conferred privately with several em-
ployees in his office. He had one such conversation with Dueweke. Brophy
asked him why there was "a feeling of unrest in the shop." Dueweke replied
that he did not know about the other employees, but he himself had a "growing
feeling of insecurity," as he had to consider where he might secure another job
if he left the Respondent's employment Brophy then said that he could get
Dueweke a job almost anywhere he wanted to go. Brophy gave his reasons for
opposing the Union and stated that Dueweke did not have to join the Union in
order "to work in a union shop." Brophy asked him if he had had "any talks
with the Union." Dueweke answered that he had received another organiza-
tional letter from the Union ° Brophy stated that he could not understand
why Dueweke had a feeling of insecurity, and said, "You know that we have
never let you down, and you have worked through former slow periods." 10 At
the end of the conversation Brophy stated that there would "always be work for a
non-union man and a good man."
It is clear from the above statements of Brophy that he was interrogating
Dueweke concerning his union activities and promising him benefits if he re-
frained from joining the Union Accordingly, I find that his statements con-
stitute interference, restraint, and coercion.
Howard Brophy also had a conversation with employee Charles Ware during
the afternoon of April 18. Concerning this conversation, Ware was questioned
and testified credibly as follows :
A. Well, Mr. Brophy stated, say,-I want to get the right word he used.
He said-maybe I can't think of it, but I can give you a word that's similar.
He says, "You are more or less in between the devil and the deep blue sea."
What I mean to say, you are more or less on the rail.
Q. In the middle?
A. In the middle, that's what I want to say.
Q. Continue, please.
A I said, "yes, I guess I am." I said, "If I go this way, fall over for-
ward with the men-backward with the men, maybe I'm right. If I fall
your way, maybe I'm rght and maybe I'm wrong."
Q. The first thing Mr. Brophy said was that you were in the middle or on
the rail?
A. Yes. Then he said something about-let me get this straight. Right
after that he says, "Well, if you don't join the Union," says, "I'll guarantee
you there will be no Union here in the shop." Well then I said,-I don't
know, maybe I said, "I'm sorry," or maybe I didn't. Anyway I said I had
already made out my application to become a member of Local 12.
Q. Then what happened?
A. Then Mr. Brophy I believe was sitting down and so was I. He got
up and shook my hand and he says, "At least you were man enough to tell
9 Previous to the time related above, Dueweke had received an organizational letter
from the Union, and had shown it to Brophy
to The evidence discloses that the Respondent's business usually slumped during the
summer months, and that during one such slack period the working hours of all employees
had been reduced.
BROPHY ENGRAVING COMPANY 733
me " Then we talked on for a few minutes and he says, "If at any time
you want to come back and talk to me and decide not to become a member,"
he says, "I can show you a way around it." I told him any time, I said,
"Well, you know, I gave up four years' seniority at the other place to come
here and work for 75 cents an hour." I said, "Where will I learn pho-
tography"" Mr. Brophy says, "I'll see that you learn photography if you
don't become a member of the Union."
Q. Was the word-strike that Was the word guarantee used at all by
either you or Mr. Brophy, sir?
A. Yes.
Q. What was said and by whom?
A. Mr. Brophy says he'd guarantee me that I would learn the photo
engraving, or photography.
Q. If I can take you back now to the very beginning of that meeting-
A. Of this meeting in the office?
Q Yes, Do you recall anything else which was said by Mr Brophy?
A. Not right now I don't recall.
Q. I'll try to refresh your memory then, or your recollection. What, if
anything, was said in respect to what you thought or what your feeling
was as to the Union?
A. Well, lie did say what was my feelings toward the Union.
Q. When did he say that?
A Well, I'd say that was near the conversation when we-right after
he said you were more or less in the middle.
1 t is found that the above statements of Brophy constitute interference,
restraint, and coercion.
C. Alleged antea Terence, restraint, and coercion
1. Incident involving Catherine Brophy
The wall of the "dark room" used by the photographers forms one side of
the stripping department Over the dark room these is a balcony which is
used by the Respondent for the storage of old records. The light switch for
the balcony is at the foot of the stains leading to it.
On or about April 20, employees Rein and Bardwell had a conversation in the
stripping department. Bardwell was Rein's apprentice Bardwell questioned
Rein as to "What was going on around the shop." Rein replied that some of the
employees had joined the Union They then discussed the discharges of Priewert
and Tertzakian, and Bardwell asked Rein's advice on whether or not he should
join the Union. At about this time Rein noticed Catherine Brophy in a "stooped
over" position with her arm resting on the balcony railing. When he looked in
her direction she stood up. The balcony lights were not on at the time.
Catherine Brophy admitted the incident, but denied that she had heard the
conversation between Bardwell and Rein or that she had gone on the balcony
for that purpose. She testified that during the morning she had gone to the
balcony in order to get some old records; that as she was searching for them,
she noticed employee Doering walk up close to Rein ; that Rein then looked up
at her, and that she did not remember whether or not she had switched on the
balcony light. Doering was a photographer and Ware was his apprentice.
Concerning the incident, Ware testified, in substance, that at the time in question
he was in the dark room ; that he heard someone walking on the balcony ; that
he went out to warn Rein, as he knew that Rein was soliciting Bardwell to join
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union; that Rein told him that he had seen Catherine Brophy on the balcony ;
and on another day before this incident he had heard someone "tiptoeing" across
the balcony."
While Catherine Brophy's presence on the balcony under the circumstances
related above certainly is suspicious, I do not believe that the evidence is sufficient
to warrant a finding of surveillance. At the request of the Respondent and with
the consent of the parties, the Trial Examiner visited the Respondent's plant in
order to view the premises. This visit occurred at about 5:30 p in. In my
opinion, there was sufficient natural light at the portion of the balcony which
the evidence shows Catherine Brophy occupied during the above incident for
reading purposes. Therefore, the undisputed testimony that the balcony electric
light was not turned on is not conclusive. Accordingly, I do not find that her
actions in this connection constitute interference.
2. Incident in January 1950 involving Howard Brophy
Sometime during January 1950, Charles Sheppard went to the Union's office
for the purpose of being reinstated as a member of the Union and applying for a
photoengraving job. He spoke to William Krey, business manager of the Union.
Krey told him that there were no job openings at the time, but suggested that
Sheppard apply at the Respondent's establishment. Following Krey's suggestion,
Sheppard went to the Respondent's plant and talked to Howard Brophy. Sheppard
applied for a photographer's position Concerning the conversation, Sheppard
was questioned and testified as follows :
Q. (By Mr Brooks) I believe you related that you told Mr Howard Brophy
that you were not a member of the Union?
A. That is right, he asked me if I was a member of the Union I said no,
I am not a member of the Union.
Q. Do you recall whether you made any further statement to Mr. Brophy
in respect to the Union?
A I says to Mr Brophy, "Why do you mention that? After all, wouldn't
you hire a Union man?" And Mr. Brophy had a half cocked smile, looked
at me and nodded his head.
Q What do you mean he nodded his head?
A No.
Q. Sir?
A. No.
Q. You mean that's the way he nodded his head?
A. That is right.
However during cross-examination Sheppard testified that Brophy did not
question him concerning his union status but that he told Brophy ; that he
could not swear which way Brophy nodded his head; and that, "Somehow or
another, there just wasn't any direct answer." On redirect examination Shep-
pard again testified that Brophy nodded his head "No." Brophy testified that
the Union was not mentioned during his conversation with Sheppard. Shep-
pard did not impress the undersigned as a reliable or credible witness Brophy
also has been heretofore discredited as a witness. Accordingly, I find that the
General Counsel failed to establish this allegation of the complaint by a fair
preponderance of the evidence.
11 Although Ware's testimony is not clear in this connection , it appears that Doering
was in the dark room at the time and also may have gone out to warn Rein.
BROPHY ENGRAVING COMPANY
D. The discharges
1. Alfred Priewert
735
Priewert was employed by the Respondent from December 1947 until his dis-
charge on April 18, 1949 He was employed in the zinc etching department 12
and Tertzakian was his aprentice. Priewert and Tertzakian often discussed
the Union, and Priewert applied for membership in the Union on or about Febru-
ary 17, 1949
On about March 31, Priewert told Rex Brophy that he would have to take a
leave of absence until Wednesday, April 6, in order to visit his mother in Minne-
sota who was ill Later that same day Priewert was called to the office by
Howard Brophy: Brophy complained about poor production in the zinc etching
department and said, "I think when you come back (from Minnesota) you'll
be with us about two weeks and you'd better get another job." When Priewert
returned to work on Friday, April 8, he had a conversation with Howard Brophy
in which it was agreed that Priewert would continue to work for 2 weeks or
until April 22
Priewert joined the Union on April 11 and told Tertzakian of his action. He
and other employees met with Krey, the business manager of the Union, on April
14. About 1 hour after Priewert teported for work on April 18, Superintendent
Soderquist told him that Howard Brophy, wanted to see him in the office.
Concerning his conversation with Brophy, Priewert was questioned and testified
credibly as follows :
Q Who was present during this conversation?
A Mr Soderquist. Mr. Howard Brophy and myself.
Q. What happened?
A. Howard sat on one side of the desk and I sat on the other side of the
desk and Mr. Soderquist sat over here. Howard had a sheet of paper in
his hand about the size of your copies there, and lie had a lot of figures on
it, dates and so forth He said, "Al, something has suddenly come up and
I've figured out your time and have had a check made out, and here's the
way I figured it." He threw the paper at me, and said, "Is that okay with
you?" So I looked the paper over about two or three minutes to see what
it had on it. It had so many hours for this week and the other week and
facts and figures pertaining-and the total of the amount of the check that
he made out was down at the bottom of the paper.
What was your understanding in respect to how long you were to continue
to work at the Brophy Engraving Company?
A. I expected to work all that week until the following Friday of the week
of April 18th.
Q. What was the conversation at this particular meeting now, in respect
to how long you would continue to work?
A. Well, I said I thought I was going to finish the week out here. I said,
"Howard, do you want this thing to take effect immediately or tonight or do
you want me to work the morning out, or do you want me to finish the week
or how long do you want me to work?" He says, "I'd just as soon you left
right away, if that's satisfactory with you." I says, "Okay, I guess it will
have to be." -
Priewert left the plant immediately after the above conversation. He was paid
for Tuesday and Wednesday of that week, or through April 20. He also received
a vacation pay amounting to $141, or for about 7 days.
12 Priewert also performed some "art work."
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As related and found above, Brophy made a speech to the employees on April
18 after Priewert's discharge, during which he stated that Priewert had been
"spreading poison" among the employees. Also as related above, Brophy visited
the homes of Maghielse and Obermiller on April 16 and 17. As to his conversa-
tion with Brophy, Maghielse testified credibly as follows :
A. He [Brophy] told me he should have let him go immediately but Al
[Priewert] asked for two weeks' notice so he gave Al two weeks' notice.
He told me a lot of reasons why he was letting Al Priewert go and said he
didn't perform his duties very well, I think. He said that Al Priewert was
causing some disturbance in the shop and that Al had promised that if he
allowed Al to work two weeks longer, he would not cause any more dis-
turbance, that Al had not lived up to his promise. He told me he is sort of
a poisonous influence on the men.
With respect to his conversation with Brophy concerning Priewert, O,bermiller
was questioned and testified credibly as follows :
Q. (By Mr. Brooks) All right. Tell me the whole conversation, to the
best of your ability.
A. He proceeded to tell nne about Mr. Priewert, why he was letting him
go. That he wasn't capable of handling the job. He had told Mr. Priewert
that he was just-I don't recall. Mr. Priewert had asked him if he was going
up home. His mother was very ill in Minnesota and he was asking him if
he couldn't give him the two weeks' notice after he got back. Mr Brophy
said that would be all right as long as he-I believe he said kept his nose
clean. Well, he did tell me that Monday morning, he was letting Mr.
Priewert go when he came into the shop at first
Q. The first thing Monday?
A The first thing Monday morning
Q. Did you-did he tell you why?
A. He said he was spreading poison throughout the shop, amongst the
men.
Q That is the reason he was letting him go Monday morning?
A Yes
The General Counsel contends that the Respondent discriminated against
Priewert by refusing to allow him to continue working until April 22, 1949, the
expiration date of the 2-week notice of discharge The General Counsel does
not contend that the Respondent's action on Mai ch 31 was discriminatory The
Respondent apparently contends that the 2-week period expired on April 20.13
Further, the Respondent contends that Priewert was discharged for "lack of
work and incompetency." Concerning the reason for making Priewert's dis-
charge effective on April 1S iather than April 20, Howard Brophy testified to
the effect that there was not any work for Priewert to do during that week,
either zinc etching or art work.
The question of whether or not the Respondent's notification of discharge on
March 31 was for cause is not an issue in the case The refusal to permit
Priewert to continue working until the end of the 2-week period is the basis
for the Respondent's alleged discrimination against Priewert. I am convinced
and find that the Respondent on April 18, 1949, refused to permit Priewert to
continue working until April 22 because of his membership in and activities on
behalf of the Union, and that such action on the Respondent's part was in
violation of Section 8 (a) (3), of the Act From Howard Brophy's conversa-
13 The check stub attached to the check given Puewert on March 31, was received in
evidence. This stub contains the notation, "Total wages Apr. 11-Apr. 20 11
BROPHY ENGRAVING COMPANY 737
tions with Maghielse and Obermiller on April 15 and 16 and from his speech
to the employees on April 18, it is clear that Brophy decided to terminate Prie-
wert on April 18 rather than on April 22 because he believed that Priewert
was the instigator of the union activities in the plant. He referred to Priewert
as "causing some disturbance in the shop," a "poisonous influence on the men,"
not keeping his "nose clean," and "spreading poison" among the employees. By
such remarks Brophy obviously was alluding to Priewert's union activities,
and it is so found. No other reasonable conclusion can be drawn from the
record, especially when his speech and conversations are considered as a whole.
Further, the necessity for ousting Priewert from the plant on April 18 is
not apparent from the record, especially since he was paid through April 20
The record discloses that Priewert and Tertzakian were busy up and until
their discharge on April 18, and that thereafter the zinc etching work was per-
formed by Soderquist and employee Christunas Since Priewert was a photo-
engraver with some 25 or 30 years of experience and had been employed by
the Respondent for 16 months, it would appear that he could have been kept
busy at zinc work until April 22 For the above reasons I conclude and find
that Brophy terminated Priewert's employment on April 18 in order to dis-
courage further activities of Respondent's employees on behalf of the Union.
2. Vartkiss Tertzakian
Tertzakian was employed by the Respondent from August 1948, until his
discharge on April 18, 1949 For about the first 2 months of his employment
he worked as an apprentice in the copper etching department. Thereafter, he
worked as an apprentice in the zinc etching department under Priewert.
Tertzakian and Priewert often discussed the Union, either between them-
selves or in the presence of other employees. Tertzakian went to the office of
the Union and applied for membership on about February 9, 1949. He did not
attend the organizational meeting of the Union on April 14 as he already had
been sworn in as a member. How ever, lie did attend the union meetings on
April 15 and 18
As related above, Howard Brophy made a speech to the employees after
Priewert's discharge When telling them the reasons for Priewert's discharge,
Brophy stated that "the student" (Tertzakian) had become "a little better than
the instructor" (Priewert). Later that day, and at about 4: 30 p. in., Tert-
zakian had a conversation with Brophy. Tertzakian asked hint if another
employee would be assigned to the zinc etching department and how his work
was "getting along." Brophy replied that for the time being Tertzakian would
be left alone in the zinc etching department and that he should "keep up the
good work."
After Tertzakian had returned home from the union meeting on April 18
and at about 10 p. in, Howard and Rex Brophy came to his house. Howard
Brophy gave him an envelope which contained the wages due him and "one
week's pay in lieu of notice," and stated that he was discharging him "for lack
of work " Tertzakian asked Brophy if the lack of work was on his or the
Respondent's part Brophy said it was the latter. Tertzakian returned to the
plant on April 20 and asked Howard Brophy to rehire him. Brophy refused,
stating that when he had discharged Tertzakian he thought he understood the
situation and that "the situation is the same now and will be so in the future "
On of about April 21, Catherine Brophy had a conversation with Dueweke.
She told him that she had thought that Teitzakian "could fill Mr Priewert's
shoes" but that Tertzakian had been "led astray" by Priewert.
95 3841-52-vol 94--48
738 DECISIONS OP NATIONAL LABOR RELATIONS BOARD
The Respondent contends that Tertzakian was discharged for lack of work.
In this connection Howard Brophy testified, in substance, that as of April 18
there was practically no zinc etching work in the plant; that the Respondent
had in its employ zinc etchers who were more capable than Tertzakian ; and
that the condition in the business required a reduction in force.
The Respondent's contention is rejected. By discharging Priewert and
Tertzakian the Respondent completely stripped its zinc etching department of
personnel. Priewert and Tertzakian had been performing the zinc etching
work for months before April 18, and they were both busy up and until that
date. After April 18 the zinc etching work was performed by Superintend-
ent Soderquist and Christunas Christunas had been employed by the Respond-
ent about 6 months longer than Tertzakian and had performed some zinc
etching work, but the credible evidence discloses that he was not as ac-
complished at the work at Tertzakian. Further, if there was a scarcity of zinc
work during the period of time in question, as contended by the Respondent,
it seems strange that two employees were assigned to the work after April 18.
In fact, Soderquist told Dueweke that he was spending his time as zinc etching
work because he needed "hell), there was no etcher."
It is clear that at least up and until 4: 30 p in on April 18, Howard Brophy
planned to retain Tertzakian as an eniplo. ee in the zinc etching department.
This is disclosed by his speech to the employees and by his conversation with
Tertzakian, related above As for the necessity for going to Tertzakian's home
that night at 10 p. in. in order to notify him of his discharge, Brophy testified
to the effect that he personally hired and dismissed all employees; and that
he was not going to be at the plant the following day. I am unable to place
any credence in this explanation, especially in view of his testimony concerning
his whereabouts on April 19. In this connection, his evasiveness almost amounted
to refusal to answer questions.
The Respondent points out in its brief to the Trial Examiner that "no claim
was made by anyone" that Brophy knew of Tertzakian's union activities on and
before April 18. Direct proof of knowledge is not necessary. Considering the
size of the Respondent's plant and the close working relationship between the
Employer and employee, I am convinced that Brophy did learn of Tertzakian's
union activities. In this connection it is noteworthy that Craig, an employee
who was on friendly terms with Brophy, stated at the union meeting on April 18,
at which Tertzakian was present, that he would not join the Union until he
first spoke about it to Brophy. Catherine Brophy's statement to Dueweke on
about April 21 is also significant in this respect.
Accordingly, I find that the Respondent discharged Vartkiss Tertzakian on
April 18, 1949, because of his membership in and activities on behalf of the
Union
3. Gerald Dueweke, Dennis Maghielse, and Charles Ware
All three of the above employees were discharged by the Respondent on
June 24, 1949. Both Dueweke and Maghielse were first employed by the Re-
spondent on January 2, 1940, and Ware on October 27, 1949. Dueweke per-
formed "routing, finishing and proofing," and Dlaghielse did finishing and
"stripping." Ware was an apprentice photographer under Doering.
Dueweke, Maghielse, and Ware discussed the Union in the plant with other
employees, attended the union meetings on April 14 and 15, and were sworn in
as members of the Union at the meeting on April 18. As related above, Ware
had a conversation with Howard Brophy in the latter's office on April 18 during
which Ware told him that he had joined the Union
BROPHY ENGRAVING COMPANY 739
On or about June 18, Maghielse was called to the office and had a conversation
with Howard Brophy. Brophy asked him if he would "care to take over the
photography cameras." " Maghielse refused to take the photography job and
stated, "Just because I have become a member of the Union was no reason why
I would not continue doing the work I had been doing and the way I had been
doing it "
At about 4: 30 p. in. on June 24, 1949, Dueweke, Maghielse, Ware, and employee
Edward Bardwell were called to the office and discharged by Howard Brophy.
Soderquist and Mrs. Thomas, an office employee, were present at the time. Brophy
read a prepared statement as follows:
Gentlemen I have asked Mr Soderquist and Mrs Thomas to sit in with
us In a past instance. I made certain oral statements to an employee which
ww ere subsequently distorted by persons who wished to make we appear a very
evil person indeed
Therefore, what I find it necessary to say at this time, I have set down
here so that there shall be no doubt of what I have said, nor any twisting of
my meaning.
For the past several months, our business has not prospered as it should,
but rather it has declined, to a point where we are now compelled to reduce
our force.
It is unfortunate that we must discontinue your services. It is not a
pleasant thing to do. To you who have been with us for more than a year,
we are handing a check in full payment up to-date plus two (2) weeks'
vacation pay, Fourth of July holiday pay and one week's pay in addition.
Ed,'since you have been with us only a short time, we are giving you a
check in full payment to date, plus 1/2 week's pay.
Jerry, in the case of your additional pay over and above vacation and
holiday pay, your check shows that one week's pay had been applied as a
payment in that amount on your loan from the company. A receipt for this
amount is attached to the check. There is no desire on my part to press you
for payment of the balance unduly, as I know you will pay it as rapidly
as you can.
Each of you may have a natural question as to why it is you ; the answer is
that we have had to scale our force down to those who are best qualified, in
our opinion, to handle efficiently the reduced volume and class of business
we expect to get: The continued existence of this business is my first
responsibility and 1 must operate efficiently or quit. Naturally, we are
not going out of business.
What the future of business will be, I, or others, can only guess . We hope
it will be upward, and 1 assure you, that if it is, we will give full consideration
to re-hiring you.
Employees Doering, Rein, and Obermiller quit their jobs with the Respondent
during September 1949. The day after Rein quit the Respondent recalled
Bardwell to work About a week or two later Bardwell's father also started
working for the Respondent, but remained on the payroll of another company.
With the exception of Bardwell's father, no new employee was hired by the
Respondent until October 17, 1949.
The Respondent contends that Dueweke, 11laghielse, and Ware were discharged
for the reasons set forth above in Brophy's statement of June 24.
While the Respondent's motives in discharging the three above employees are
questionable, especially in view of Howard Brophy's statements and actions
" Doering and Ware performed the photography work at the time of the above
conversation.
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on and before April 18, nevertheless I believe and find that the General Counsel_
failed to sustain the burden of proving that they were discriminatorily dis-
charged. The undisputed evidence discloses that the Respondent' s sales dropped
from $161,182 87 in 1948 to $116,846 32 in 1949, that sales of engravings dropped
from $82,988 05 for the first 6 months of 1948 to $68,056.90 for a like period in
1949; and that for the first 6 months of 1949 the Respondent sustained a loss of
$2,394.14. These facts indicate more than the usual summer slump in the
Respondent's business , and that it was necessary to make some reduction in the
working force In addition to three employees who openly were active on be-
half of the Union, the Respondent discharged Bardwell. It is not alleged that
his discharge was discriminatory. Except for this fact, there is nothing sub-
stantial in the record to indicate whether or not he was an adherent of the
Union Moreover, the Respondent's staff was not increased until after Doering,
Rein, and Obermiller left the Respondent's employ
Accordingly, I do not find that the Respondent discriminatorily discharged
Dueweke, Maghielse, and Ware on June 24, 1949.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent as set forth in Section III, above, occurring
in connection with its operations described in Section I, above, have a close,
intimate, and substantial relation to trade, tiafHc, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices,
it will be recommended that it cease and desist theiefrom and take certain
affirmative action designed to effectuate the policies of the Act.
It has been found that the Respondent, after having given notice to Alfred
Priewert that his employment would terminate 2 weeks from the day he returned
to work from a leave of absence, on April 18, 1949, discriminatorily refused to
allow him to continue working until April 22, 1949, the expiration date of the
2-week period. In this connection it has been found that the Respondent paid
Priewert through April 20, leaving only 1 day of the 2-week period for which
he' was not paid. It will not be recommended that the Respondent make Prie-
wert whole for this 1 day since it appears that he also received $141 in vacation
pay at the time of his discharge and that there was no agreement or established
custom in this respect. It has also been found that the Respondent has dis-
criminated in regard to the hire and tenure of employment of Vartkill Tertzakian.
It will be recommended that the Respondent offer him immediate and full re-
instatement to his former or substantially equivalent position," without preju-
dice to his seniority or other rights and privileges; and that the Respondent
make him whole for any loss of pay he may have suffer ed by reason of the
discrimination against him, by payment to him of a sum of money equal to that
which he normally would have earned as wages from the date of the discrimi-
nation, April 18, 1949, to the date of the Respondent's offer of reinstatement, less
his net earnings 's during said period Said loss of pay shall be computed on the
basis of each separate calendar quarter, or portion thereof, during the period
from Respondent's discriminatory action to the (late of a proper offer of rein-
1" The Chase National Bank of the City of New York, San Juan, Puerto Rico Branch,
65 NLRB 827
11 See Crossett Lumber Company, 8 NLRB 440, 497-8.
BROPHY ENGRAVING COMPANY 1 741
.statement The quarterly periods, herein called "quarters," shall begin with
the first day of January, April, July, and October. Loss of pay shall be de-
termined by deducting from a sum equal to that which said employee would
normally have earned for each such quarter, or portion thereof, his net earnings,
if any, in other employment during that period. Earnings in one particular
,quarter shall have no effect upon the back-pay liability for any other quarter.
In order to insure compliance with the foregoing back-pay and reinstatement
provisions, it is recommended that the Respondent be required upon reasonable
request to make all pertinent records available to the Board and its agents."
It has been found that the Respondent has interfered with, restrained, and
coerced its employees. In the opinion of the undersigned Respondent's conduct
discloses a fixed purpose to defeat self-organization and its objectives. Because
of Respondent's unlawful conduct and its underlying purpose, the undersigned
is convinced that the unfair labor practices found are persuasively related to
the other unfair labor practices proscribed by the Act and that the danger of
,their commission in the future is to be anticipated from the course of Respond-
ent's conduct in the past. The preventive purposes of the Act will be thwarted
unless the recommendations are coextensive with the threat. In order, there-
fore, to make effective the interdependent guarantees of Section 7, to prevent a
recurrence of unfair labor practices, and to minimize strife which burdens and
obstructs commerce, and thus to effectuate the policies of the Act, it will be
recommended that Respondent cease and desist from infringing in any manner
-upon the rights guaranteed by Section 7 of the Act.18
Having found that the General Counsel tailed to sustain the burden of proving
that the Respondent on June 24, 1949, discriminatorily discharged Gerald Due-
weke, Dennis DIaghielse, and Charles Ware, it will be recommended that the
complaint be dismissed as to them.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. Detroit Photo-Engravers' Union No. 12, International Photo-Engravers'
Union of North America, A. F. L., is a labor organization within the meaning
of Section 2 (5) of the Act.
2 By discriminating in regard to the hire and tenure of employment of Alfred
Priewert and Vartkiss Tertzakian, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise
of the lights 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 (a) (1)
of the Act.
4 The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the 'Act.
[Recommended Order omitted from publication in this volume.]
17 F W. Woolworth Company, 90 NLRB 289.
28 See May Department Sto7 is v. N L R B , 326 U S 376.