Creps United Publications

706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD John H. Creps, E. Garson Crepsl and James J. Creps, a partnership, d/b/a Creps United Publications and Michael S. Gardner. Case 6-CA-8623 March 15, 1977 DECISION AND ORDER By CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER On September 28, 1976, Administrative Law Judge Robert M. Schwarzbart issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith and to adopt his recommended Order as modified herein. We adopt the findings of the Administrative Law Judge that the Respondent violated Section 8(a)(1) of the Act.2 We disagree, however, with his finding that the Respondent discharged employee Michael Gard- ner in violation of the Act. Respondent is a partnership engaged in the business of printing and distributing advertising circulars for various accounts, primarily in the retail grocery industry. Gardner was the principal organiz- er for the Union. On Thursday, September 11, 1975,3 Gardner's shift worked 17 hours. Long shifts late in the week are frequent occurrences at Respondent's plant. On the evening of September 11, Gardner asked fellow employee Leone to report the next morning that Gardner would be late to work as he did not feel well. General Counsel's witness, employee Robert Wilson, testified that at 8 a.m. on September 12 he overheard Leone telling Supervisor Shaffer that Gardner had requested Leone to tell Shaffer that Gardner was going to see a doctor that day. Wilson further testified that Shaffer replied Gardner would be fired if he did not have a doctor's excuse. On September 12 Gardner arrived at work at 10:03 a.m. rather than at the 8 a.m. starting time. Other The name of E. Garson Creps appears as amended at the hearing. 2 Member Walther would not find that the October 6 questioning of employee Leone by Supervisor Shaffer as to why Leone wanted a union violated Sec. 8(axl) of the Act . According to the credited testimony, while a group of employees were complaining among themselves about working conditions, Leone commented that it was no wonder that the employees wanted a union. Shaffer , who was in the area while in pursuit of his duties, overheard Leone's remark and asked him, "Well , tell me, why do you want the Union)" Leone replied that Shaffer had heard all of the reasons and he 228 NLRB No. 73 employees who had worked the long shift reported on time except one employee who was a half hour late. Shaffer testified the operation of one press was delayed because of Gardner's lateness. Gardner testified that, when he reported to work on September 12, he apologized to Shaffer for being tardy, that Shaffer told him it was all right, to get to work and loot to worry about it, and that when Gardner asked if a doctor's excuse was required, Shaffer answered in the negative. On the other hand, Shaffer testified that, when Gardner reported to work late on September 12, Gardner said that he had been to a doctor at Blairsville, which is about 15 miles from the town in which Respondent's plant is located and that no question or comment concerning a doctor's note was made at that time. However, about an hour later Gardner approached Shaffer and queried whether he wanted a doctor's excuse. Shaffer replied he did since Gardner had been to a doctor. The Administrative Law Judge did not resolve the credibility problem. Gardner had not been to a doctor on September 12. Gardner did not work on September 13 or 14 because he was observing holidays. He testified that on September 15 Shaffer asked him for a doctor's note for the first time . On direct examination Gardner testified Shaffer asked for a doctor's note when Gardner arrived at work on September 15. On cross-examination he testified he did not work on September 15, but Shaffer made the request during a brief personal visit Gardner made to the plant that day. On September 16, Shaffer again asked him to bring it the following day. Gardner promised that he would. On September 17, when Gardner, in response to Shaffer's request, said he did not have a doctor's note, Shaffer told him he would not be allowed to punch in until he brought the note. When Gardner protested, Shaffer referred him to Garson Creps, one of Respondent's partners, who told him he could punch in immediately and be paid for a full day's work, although he was not to work until he had presented a doctor's note. Gardner then left the plant and visited the office of Dr. Warren L. Whitten, a physician in Indiana, Pennsylvania. At Gardner's request, Dr. Whitten, after examination, gave him a note dated September 17 saying that he was suffering from a slight cold. However, Dr. Whitten refused to grant Gardner's did not feel that he should give him another one. Member Walther does not believe that Shaffer's query violated the Act. It was a natural rejoinder to Leone's open complaint which Shaffer had overheard and it was not accompanied by any sort of threat. Further, Leone's brushing off of Shaffer 's query indicates that Leone was not coerced . Member Walther would therefore find that, in the circumstances, Shaffer's query did not violate Sec. 8(a)(l) of the Act. Flint Provision Co., 219 NLRB 523 (1975). 3 All dates herein are 1975. CREPS UNITED PUBLICATIONS request that the note be backdated to September 12. Gardner conceded that after leaving Dr. Whitten's office he changed the numeral "7" on the date of the note so that it read "September 12." He then presented the altered note to Shaffer. The Respondent's three partners, Gar, James, and John (Jack) Creps, customarily got together every night at 11 p.m. to discuss the next day's work and problems that had arisen during the day. On the night of September 17, they discussed , inter alia, Dr. Whitten's note. Gar Creps mentioned that Gardner had said that he had seen a doctor in Blairsville, Pennsylvania, but the note was from Dr. Whitten in Indiana, Pennsylvania. Jack Creps examined the note and noticed an apparent alteration in the date. The partners decided to visit Dr. Whitten to investigate whether the date had been altered. Dr. Whitten did not keep office hours on Septem- ber 18. On September 19 Jack and Gar Creps visited Dr. Whitten. Both Dr. Whitten and his nurse told the Creps brothers that they had refused to grant Gardner's request that the note be backdated to September 12 and denied that the September 12 date on the note had been written by Dr. Whitten. On the night of September 19, the Creps brothers discussed the altered note and decided to confront Gardner with it. In the absence of a showing of a "gross error," they decided that Gardner would be dismissed. On the following Monday, September 22, Gardner was summoned to a meeting in Jack Creps' office. Present were Jack Creps, Gar Creps, and Shaffer. Jack Creps suggested that Gardner could have a witness present. Gardner ultimately chose Leone who was brought into the meeting. Jack Creps handed Dr. Whitten's note to Gardner and asked "the meaning of this." Gardner asked what he meant. Creps said the note had been altered and Dr. Whitten confirmed that the change was not in his handwriting. Gardner admitted changing the date. Creps stated that in view of this fact there was no choice but to let Gardner go . Creps told Gardner that he had an obligation to explain the termination to the employees in the pressroom so that there would be no misunderstanding and that Gardner was welcome to be present during the explanation if he so desired. Jack Creps called the work crew in the pressroom together and said he wanted to explain Gardner's discharge so that there would be no misunderstand- ing. Photocopies of Dr. Whitten's certification, as altered by Gardner, were distributed among the assembled employees, and it was explained that Gardner had altered it . Creps stated that this would 707 not be tolerated. As Creps walked away, he stopped and told the still-gathered employees that if any of them sympathized with or felt the way Gardner did, this would be the time to leave . Gardner then told the employees not to say a word, "this is exactly where we wanted to get them," and then left. The Administrative Law Judge found that "one reason" for Gardner's discharge was his union activity noting: (1) Respondent's strong hostility to self-organization and Gardner's active role in orga- nizing; (2) Gardner's work performance and his general record for attendance and punctuality were not, except for the lateness September 12, factors in his discharge; (3) although Respondent had no uniform policy requiring the production of doctor's excuses for employee absence or lateness , unusual care had been taken not only to obtain a doctor's certificate from Gardner but also to study and verify it; and (4) Gardner was Respondent's first employee to be terminated in 25 years before an audience of employees who had been assembled for that purpose. We disagree with the Administrative Law Judge's conclusion that Gardner was discriminatorily dis- charged. We shall address ourselves to his reasons seriatim. In Klate Holt Company, 161 NLRB 1606, 1612 (1966), the Board said: The mere fact that an employer may desire to terminate an employee because he engaged in unwelcome concerted activities does not , of itself, establish unlawfulness of a subsequent discharge. If an employee provides an employer with a sufficient cause for his dismissal by engaging in conduct for which he would have been terminated in any event . . . the circumstance that the employer welcomed the opportunity to discharge does not make it discriminatory and therefore unlawful 4 Gardner was late in reporting for work on September 12. As a result, production on one printing press was held up. According to the testimony of General Counsel's witness Wilson, Gardner's agent Leone told Supervisor Shaffer at the start of the shift on September 12 that Gardner had told him he was going to see a doctor and therefore would be late. According to Wilson's further testimo- ny Shaffer threatened to fire Gardner if he did not bring a doctor's note. In fact, Gardner did not visit a doctor. When Gardner reported late on September 12, he asked Shaffer, according to his own testimony, if a doctor's excuse was required. There is a dispute, not 4 See Golden Nugget, Inc, 215 NLRB (1974) 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD resolved by the Administrative Law Judge, as to Shaffer's answer. But there is no dispute that by September 15 Shaffer was asking Gardner for a doctor's note or excuse and Gardner promised to bring such a note. Gardner went to a doctor for the first time on September 17, and after failing to persuade the doctor to predate the note to September 12, thereby furnishing an excuse for Gardner's lateness on that day, deliberately altered the note's date so as fraudulently to establish that his tardiness in reporting for work on September 12 was caused by a visit to a doctor, as Leone had told Shaffer. Although Respondent had no uniform policy requiring the production of a physician's excuse for employees who reported late, it is noted that Leone had told Shaffer at the direction of Gardner that the latter would be late because he had to go to a doctor. It was therefore natural for Shaffer to ask for the report from the doctor when Gardner did show up for work. Gardner did not at any time deny having gone to a doctor. On the contrary, in asking Shaffer if the latter wanted a doctor's note, he impliedly affirmed that he had been to see a doctor. Further, Respondent could not reasonably have anticipated that Gardner would forge a note and thus furnish reason for his discharge. As to the Administrative Law Judge's statement that the doctor's certificate was "pondered and physically investigated by the top members of management," this is an exaggeration of what actually occurred. The curiosity about the note arose from the circumstance that on September 12, according to Shaffer, Gardner had said that he had been to a doctor in Blairsville, Pennsylvania, whereas the note presented was from a doctor in Indiana, Pennsylvania. The matter of a possible forgery was taken up at a regular business meeting. There is no significance to the fact that the matter was consid- ered at an 11 p.m. meeting since the partners regularly met at that hour to discuss ordinary business matters. As even a cursory examination of the note indicates possible alteration, it was not unreasonable to check with the author to determine whether it had, in fact, been altered. If, as the Administrative Law Judge stated, no other doctor's certificate had ever been investigated, there is no evidence that any other certificate had ever been altered in the way of Dr. Whitten's. Finally, while Respondent did assemble the employees to notify them of Gardner's discharge, this was not an unreasonable way to handle the incident in view of the pending organization campaign. Respondent was anxious to make clear to employees that Gardner was being terminated solely because of his forgery of a doctor's certificate and not because of his union activities. The open meeting enabled it to make its point and to prevent any coercive impact. It is of no significance that no employee had ever been termi- nated in this open way; no other employee had ever been terminated in similar circumstances, so far as appears, during a union organizational campaign. In short, Respondent has established, prima facie, a legitimate nondiscriminatory reason for Gardner's discharge. General Counsel has not proved, in our opinion, by a preponderance of the evidence that the assigned reason was a pretext and that the real reason was Gardner's union activity. For the reasons stated above, we are similarly unpersuaded by our dissenting colleague's arguments that Gardner's discharge violated Section 8(a)(3) of the Act. Our colleague merely rephrases and synthesizes the rationale of the Administrative Law Judge in concluding that the reason given for Gardner's discharge was pretextual. Our reasons for rejecting the Administrative Law Judge's rationale are equally valid for the purpose of responding to our colleague's arguments. Accordingly, we shall dismiss the 8(a)(3) allegation of the complaint. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge as modified below and hereby orders that the Respon- dent, John H. Creps, E. Garson Creps, and James J. Creps, a partnership, d/b/a Creps United Publica- tions, Indiana, Pennsylvania, its officers, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Delete paragraph 1(a) and reletter the succeed- ing paragraphs accordingly. 2 Delete the words "In any other manner" from present paragraph 1(e) and substitute therefor the words "In any like or related manner." 3. Delete paragraphs 2(a) and (b) and reletter the succeeding paragraphs accordingly. 4. Substitute the attached notice for that of the Administrative Law Judge. MEMBER JENKINs, dissenting in part: I do not agree with my colleagues' conclusion that Respondent discharged Michael Gardner because he altered the date on a doctor's certificate. Rather, the evidence in this case leads inevitably to the conclu- sion that the real reason that Respondent discharged Gardner was his union activity and that the reason assigned by the Respondent for the discharge was pretextual. The record clearly establishes that Gardner was the principal supporter and employee coordinator of the Union's organizational drive. Moreover, it is clear CREPS UNITED PUBLICATIONS that Respondent had knowledge of Gardner's union activities before it instigated the chain of events that led to Gardner's discharge on September 19. Thus, Janice Starry, a supervisor, had direct knowledge of Gardner's leading role in the campaign more than a week before the Union filed its petition on Septem- ber 8. Furthermore, a week before Gardner's discharge, Supervisors Starry and Shaffer specifically inquired of employees about the union activities of Gardner and whether he was union president. Moreover, Supervisor Shaffer told employees that Gardner was getting himself in trouble because of his union activities. My colleagues agree that Respondent violated Section 8(a)(1) of the Act by Starry's and Shaffer's remarks. In addition, my colleagues ageee that Respondent also violated Section 8(a)(1) by warning employees that it would be futile to select the Union as their collective-bargaining representative. From the foregoing, it is evident that Respondent was strongly opposed to having the Union represent its employees and that Respondent was fully aware of and hostile to Gardner's leadership role in the Union's organizational activity. It is in this context that the circumstances which led to Gardner's discharge must be evaluated. Several facts stand out. First, Gardner's work performance and his general record for attendance and punctuality were not claimed as factors in his discharge. Second, Respondent had no uniform policy requiring the production of a doctor's excuse for employee absence or lateness. Third, the record reveals numerous instances where employees had been late or absent for various periods of time without having reported off and they had not been reprimanded nor required to bring a doctor's certificate. Fourth, Respondent not only required Gardner to obtain a doctor's certificate but also, studied and verified the certificate even though no other doctor's certificate had been investigated before. The Administrative Law Judge succinctly de- scribed the events surrounding Gardner's discharge as follows: Not only was the physician's note demanded and persistently pursued for a lateness that had followed a 17-hour work shift, even after, as noted above, [employee] Leone had told [supervisor] Shaffer that Gardner would be late that day, but the certificate was thereafter pondered and physically investigated by the top members of management. 709 As the final act of its drama, Respondent assem- bled all of its employees and before that audience rang down the curtain on Gardner's employment.5 Thus, there is a striking contrast between Respon- dent's past practice for dealing with employee absence or lateness and the enormous concern, the unique procedures, and the elaborate ceremony that Respondent applied to Gardner. The request for the doctor's certificate was consistent neither with a written policy nor actual practice. Furthermore, the investigation of the certificate and the assembling of an audience of employees for the announcement of an employee's discharge were without precedent. In these circumstances, the ultimate discipline meted out to the principal union adherent, in the context of Respondent's strong opposition to the Union and its threat that the employee's union activity would get him in trouble, persuades me that the reason assigned by Respondent for Gardner's discharge was pretextual and that the real reason for Gardner's discharge was his union activity. Accordingly, I would affirm the Administrative Law Judge's finding of a violation of Section 8(a)(3) and order Gardner's reinstatement. 5 An audience of employees had never before been assembled by Respondent for the purpose of announcing the discharge of an employee. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all sides were represented by their attorneys and presented evidence, it has been found that we have violated the National Labor Relations Act in certain respects. To correct and remedy these violations, we have been directed to take certain actions and to post this notice. WE WILL NOT coercively interrogate our em- ployees concerning their membership in, activities on behalf of, or sympathies for, International Typographical Union, Johnstown Typographical Union No. 137, AFL-CIO, or any other labor organization. WE WILL NOT threaten our employees with reprisals or engage in reprisals against our employees if they join the above-named Union or any other labor organization or otherwise engage in union activities. WE WILL NOT warn employees that it would be futile to select the above-named Union or any other labor organization as their collective-bar- gaining representative. 710 DECISIONS OF NATIONAL WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed them by the National Labor Relations Act. JOHN H. CREPs, E. GARSON CREPS AND JAMES J. CREPS, A PARTNERSHIP, D/B/A CREPS UNITED PUBLICATION DECISION STATEMENT OF THE CASE ROBERT M. SCHWARZBART, Administrative Law Judge: This case was heard on May 10 and 11, 1976, in Indiana, Pennsylvania, pursuant to a charge and amended charge,' filed by Michael S. Gardner, and a complaint, issued on January 30, 1976. The complaint alleges that John H. Creps, E. Garson Creps 2 and James J. Creps, a partnership, d/b/a Creps United Publications, herein Respondent, has engaged in certain unfair labor practices in violation of Section 8(a)(l) and (3) of the National Labor Relations Act, as amended, herein the Act. Respondent has filed an answer denying the allegations of unlawful conduct set forth in the complaint. Issues 1. Whether Respondent, in violation of Section 8(a)(1) of the Act, has interfered with, restrained, or coerced its employees by (a) interrogating them concerning their union membership , activities, and sympathies ; (b) threat- ening its employees with discharge and other reprisals if they selected a union as their collective-bargaining repre- sentative ; and (c) warning employees that it would be futile to select a union as their collective-bargaining representa- tive. 2. Whether Respondent, in violation of Section 8(aX3) and (1) of the Act, discharged Michael S. Gardner for engaging in protected organizational activities on behalf of a union, or whether, as contended by Respondent , Gardner was actually discharged for having falsified the date on a doctor's certificate submitted to excuse his tardiness in reporting for work. At the hearing, Respondent was represented by counsel and all parties were given full opportunity to appear, to introduce evidence, to examine and cross-examine witness- es, and to file briefs. Upon the entire record, the briefs filed by the General Counsel and Respondent, and my observa- tion of the demeanor of the witnesses, I make the following: i The original and amended charges were filed on September 23, 1975, and January 12, 1976, respectively 2 The name of E Garson Creps appears as amended at the hearing ' All dates hereinafter are within 1975, unless stated to be otherwise LABOR RELATIONS BOARD FINDINGS OF FACT I. JURISDICTION Respondent, with its principal office located in Indiana, Pennsylvania, is engaged in the manufacture and nonretail sale of printed material. During the 12-month period immediately preceding the issuance of the complaint and notice of hearing herein, a representative period, the Respondent received goods and materials valued in excess of $50,000, for use in its Pennsylvania facility directly from points outside the Commonwealth of Pennsylvania. During the same period, Respondent shipped goods and materials valued in excess of $50,000, from its Pennsylvania facility directly to points outside the Commonwealth of Pennsylva- nia. Upon the foregoing facts, the Respondent concedes and I find that the Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED International Typographical Union, Johnstown Typo- graphical Union No. 137, AFL-CIO, herein the Union, is now, and has been at all times material herein , a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent, in business since 1950, is a partnership owned and operated by three brothers - John H., E. Garson, and James J. Creps. Respondent is engaged in the business of printing and distributing advertising circulars for various accounts, principally in the retail grocery industry. Respondent's work consists of preparing finished artwork from rough copies submitted by customers and in producing the circulars on its own premises utilizing various modem printing techniques. The completed adver- tisements are either addressed by mailing or, more frequently, are delivered by truck for insertion in newspa- pers. As the advertisements often announce sales promo- tions by Respondent's customers, it is important to Respondent that production deadlines be met. The answer admits and I find that at all times material herein Arthur Shaffer, pressroom supervisor, Janice Starry, art department supervisor, and Paul Starry, mailing and driving supervisor, have been agents of Respondent and supervisors within the meaning of Section 2(11) of the Act. B. The Union Organizational Drive As a result of the organizational efforts of Michael S. Gardner, then employed by Respondent, which efforts will be detailed below, a petition for a representation election was filed by the Union on September 8, 1975,3 in Case 6- RC-7241.4 4 A heanng in the representation case was held on October 14, and a Decision and Direction of Election issued on November 10, pursuant to which an election was conducted on December 12 in a unit consisting of approximately 16 full-time and regular part-time employees employed by CREPS UNITED PUBLICATIONS 711 In an earlier representation election, conducted in 1968, a union had been unsuccessful in its efforts to become the bargaining representative of employees in the above unit. C. Respondent's Alleged Acts of Interference, Coercion, and Restraint - Facts and Conclusions Christopher Sarra, a mailroom employee and truckdri- ver,5 testified without contradiction that on or about September 10, Janice Starry, art department supervisor, asked if he had attended a union meeting the night before. When Sarra replied that he had, Janice Starry told him that he should not have gone, that he was fighting a downhill battle. While outside the plant later during that day, Sarra had a second conversation with Janice Starry in the presence of Vicky Jewert, an art department employee. At that time, Janice Starry told Sarra that her father, Paul Starry,6 had been questioning her about the Union, had asked if Michael Gardner was president of the Union, and that she had answered in the affirmative. Sarra replied that he was "going on with it." Donald Wheatcroft7 testified that on September 11, the first day of his employment with Respondent, while waiting outside to load his truck, he had been approached by Paul Starry, his immediate supervisor. Starry asked whether Wheatcroft had been talking about union activi- ties to Michael Gardner.8 When Wheatcroft replied that he had not, Starry asked Wheatcroft if Michael Gardner was president of the Umon. Wheatcroft replied that he did not know. Starry then asked if Christopher Sarra was president of the Union.9 Starry denied having asked Wheatcroft whether Mike Gardner was president of the Union. However, he did not deny Sarra's testimony that he had received such informa- tion from his daughter, Janice.10 Starry also did not deny having asked Wheatcroft whether Christopher Sarra was president of the Union. Michael Barr, employed in Respondent's pressroom as a jogger, testified that on or about September 12 Pressroom Supervisor Shaffer had told him, "Spas (an abbreviation for Gardner's nickname in the plant) is getting himself into this, bringing it on himself. You can't fool around with them. They are going to get their own way." Robert K. Fisher, Jr., employed by Respondent as a pressman, testified that on or about September 12 he had Respondent at its Indiana, Pennsylvania, facility, including truckdnvers, pressmen, cameramen, proofreaders, mailers, opaquers, platemakers, step- pers, paste-up employees, cold-type setters, and catchers, excluding all other employees, janitors, office clerical employees, guards, professional employ- ees, and supervisors as defined in the Act. The outcome of the election had not been certified by the time of the instant hearing, as a determination 0 the objections to conduct affecting the results of that election, not consolidated with this matter, was still pending. 5 Sarra is directly supervised by Paul Starry, mailing and driving supervisor 6 Paul Starry has been previously identified as the Respondent's mailing and driving supervisor 7 Wheatcroft was employed in Respondent's mailroom from September I I through late October or early November. N Wheatcroft and Gardner, shortly before, had been engaged in a conversation. 9 According to Wheatcroft's testimony, Starry also made reference to the inefficiency of a unionized facility in Elmira, New York, where much working time could be lost in waiting as the union employees there were asked Shaffer about newly posted restrictions on the use of the telephone.11 Shaffer replied that he had seen things like this happen before and they had blown over. Thereafter, on October 6, Shaffer asked Fisher why he wanted to join the Union. Fisher walked away without answering. John Michael Leone 12 related that on October 6, while a group of employees on the pressroom floor were complain- ing among themselves about working conditions, Leone had commented that it was no wonder that the employees wanted a union. Shaffer, who apparently had overheard this remark while in the mailroom on the second level, leaned over the railing and asked "Well, tell me, why do you want the Union?" Leone replied that Shaffer had heard all of the reasons and he did not feel that he should give him another one. Shaffer again asked why Leone wanted the Union. Leone answered that he did not want to talk about it, and returned to work. Shaffer, in his testimony, denied having spoken to any pressroom employees concerning the Union. Michael Barr, identified above as a jogger in Respon- dent's pressroom, also testified that on about January 28, 1976, he went to the office of John H. (Jack) Creps, one of the proprietors of Respondent, and requested a pay advance of $30 in order to buy food stamps. According to Barr, Creps refused, stating that he had to check with his lawyer and that Barr had to work through the Union. Creps continued that people who vote for the Union take these kind of chances, that Barr should have thought of this before he voted for the Union, and that this thing was very important to him. Barr retorted that eating was very important to him.13 Jack Creps recalled that in January Barr did come to his office and announce that Creps was going to have to lend him about $30. He asked Barr what he meant by that statement. Barr replied that he had thought that he would never be so reduced, but he was hungry, was going to have to buy food stamps, and repeated that Creps would have to lend him the money. When Creps replied that he could not lend him the money, Barr asked why not as Creps had made pay advances to him before. Creps replied that in the present situation 14 he felt that he was obliged to check with his attorney and he was certain that the attorney was going to say no. However, Barr could wait until he had an opportunity to consult with his attorney and provide an answer. Barr told Creps that he needed the money available to unload trucks only during certain time periods Starry pointed out that, as a result, Wheatcroft and other employees who would be required to visit that location would be delayed in their efforts to return home. 10 It is undisputed that Jamce Starry had knowledge of Gardner's union activities since at least August 31, on which date Gardner had collected a $5 membership application fee from her on behalf of the Umon. 11 It is undisputed that in that period Respondent, for the first time, had restncted pressroom employees in the use of the telephone However, this restriction did not apply to employees in other departments such as the art section. Respondent explained that this stringency , not alleged as a violation in the complaint, had been necessitated because pressroom employees had left the presses inadequately attended to make phone calls. 12 Leone was employed by Respondent as a press assistant from February 1975, to March 1976 13 At the hearing Barr expressed surprise at Creps' certainty as to how he might have voted, inferring that the matter had not been previously discussed 14 The representation election had been conducted approximately 6 weeks before. 712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD immediately as he was hungry. Creps expressed his regrets but told Barr that he could not provide an immediate decision. Creps thereafter did speak with his attorney who advised against the loan on the ground that it would be necessary to deal with Barr through a representative of the Union for whom the workers had voted.15 The General Counsel alleges that in declining to make the loan to Barr in January 1976, under the circumstances described, Respondent was engaging in an act of reprisal because of Barr's presumed support for the Union and that, as Respondent had never recognized or negotiated with the Union, Creps' statement that Barr would have to deal through his Union while Respondent would have to work through his attorney was meaningless, except as a pretext for not granting the loan. In any event, the refusal should be considered in the context of Creps' pronounce- ments to the effect that people who vote for the Union take these kind of chances and that Barr should have considered the consequence before he voted for the Union. Respondent, on the other hand, denies that Creps had made the antiunion statement attributed to him and indicates that there was a need for caution in dealing with the employees at that time, that Creps had acted on the advice of counsel, and further that, even after the election, Barr had been the recipient of certain courtesies from Respondent which would be inconsistent with a theory that Barr had been subjected to reprisal as a presumed union supporter. Accordingly, Barr had been afforded a 10-day paid vacation in late December, and had thereafter received several days off at various times to participate in certain athletic activities in which he was interested. Upon the record as a whole, my observation of the witnesses as they testified, and for reasons more fully set forth below, I credit the testimony of the General Counsel's witnesses Sarra, Wheatcroft, Fisher, and Leone that they were interrogated by Respondent's representatives, as described above. I also accept Sarra's undisputed testimo- ny that he had been told by Janice Starry, in effect, that it would be futile to support a union, the testimony of Barr that on or about September 12 he effectively had been told by Shaffer that Gardner was getting himself into trouble by his union activities, which, too, would be futile, and Barr's further profession that Jack Creps had refused to extend to him a previously available pay advance in reprisal for his presumed support for the Union. Although Respondent argues the unlikelihood of Paul Starry interrogating Wheatcroft during his first day of employment with Respondent as to whether Gardner or Sarra was the president of the Union, this interrogation took place shortly after Wheatcroft had been engaged in conversation with Gardner, and Starry's suspicion of Gardner's union activities appear to be corroborated by Sarra's testimony that Janice Starry had told him, in that 15 Creps conceded that at the time of the hearing Respondent had still not recognized and was not bargaining with the Union. However, it appears that Respondent had followed a previous practice of giving pay advances to employees. Accordingly, Barr had received two such loans earlier in 1975 and Gardner, too, had received a cash advance on August 28. 16 Although the complaint alleged that Respondent had threatened employees with reprisals for their protected union activities rather than actual acts of reprisal , I find that Jack Creps' refusal to make the pay advance to Barr under the circumstances herein is sufficiently related to the period, that her father, Paul Starry, had asked her the identical question as to whether Gardner was president of the Union. Janice, who had known of Gardner's union activities since August when she had paid him a $5 union application fee, had told Sarra that she had informed her father that Gardner was the president of the Union. On that day, September 10, Janice Starry had also asked Sarra about his union activities. It is noted that Sarra's testimony was completely uncontradicted and that these incidents took place soon after the filing of the representation petition on September 8. The testimony of Fisher and Leone that they had been interrogated by Shaffer as to their union sympathies is also mutually supportive as to timing and pattern as both incidents occurred on the same day - October 6. Fisher and Leone appeared to be forthright witnesses whose testimony was substantiated by Barr. Barr recalled that on or about September 12, also a few days after the filing of the representation case petition, he had been told by Shaffer, in effect, that Gardner was getting himself into trouble and that employees could not "fool around" with management, which was going to get its own way. I further credit Barr's testimony that he had been denied a cash advance on his earnings because Jack Creps believed that he had supported the Union. Creps' conceded statement to Barr that Barr would now have to work through his union, as yet unrecognized by Respondent, to obtain a badly needed pay advance, which under existing practices had been available, appears to be an effort to penalize Barr for his presumed union sympathies and, generally, to discourage support for the Union among Respondent's employees. Creps did not testify that he was concerned that Barr might not be able to repay the loan and the unconvincing reasons for his retreat from his past practices in this area, after the representation election when the question concerning representation remained unsettled, added credence to Barr's version as to what had been said during that conversation. I credit Barr's account of the incident. For the above reasons, I find that Respondent, by its agents specified above, violated Section 8(a)(1) of the Act by (1) interrogating Christopher Sarra, Donald Wheatcroft, Robert Fisher, Jr., and John Michael Leone concerning their union sympathies; (2) the retaliatory conduct of Jack Creps in refusing to make available to Barr the benefit of a pre-existing cash advance policy because of Barr's support for the Union;16 (3) Shaffer's threat to Barr on September 12 that Gardner was getting himself into trouble because of his support for the Union, which constitutes a threat of reprisal; and (4) statements made by Janice Starry and Shaffer to Sarra and Barr, respectively, to the effect that it would be futile to seek union recognition.17 matters litigated to be considered and that such conduct is violative of Sec. 8(a)(l) of the Act. IT See Montgomery Ward & Co., Inc., 222 NLRB 965 (1976). Contrary to the General Counsel, I do not find a September 22 statement made by Jack Creps to the assembled pressroom employees to be a threat of discharge violative of the Act. On that occasion, Creps had just explained to the press crew that Gardner was being terminated for having falsely redated a doctor's certificate submitted as an excuse for lateness . The General Counsel contends that Creps then told the employees that anyone who had CREPS UNITED PUBLICATIONS 713 D. The Alleged Unlawful Discharge of Michael Gardner Gardner, since May 28, had been employed in Respon- dent's pressroom as a jogger,"' working under Shaffer's supervision. Gardner related that as a result of a conversation with certain employees about the desirability of union represen- tation while they were returning from a baseball game in late July, he had polled employees as to union sentiment and had made certain other inquiries to explore the possibility of bringing a union to Respondent's shop. Thereafter, Gardner conducted a meeting among approxi- mately 19 of Respondent's employees to see if there was good cause for a labor organization. Subsequently, on August 16, Gardner and Union Delegate James Wood, who had arrived for the occasion from another city, stopped at the home of employee Robert Wilson, where the Union's potential for benefitting the Respondent's employees was discussed. Gardner, Wood, and Wilson then proceeded to Gardner's home in a local fraternity house where they and another union representa- tive, Michael Coy, met with approximately 19 persons to discuss working conditions at the Respondent 's premises and what the Union could do for them. During that meeting, all of Respondent's employees who attended signed authorization cards on behalf of the Union. Also in furtherance of the Union's organizational drive, Gardner, from mid-August through September, collected $5-membership application fees from 21 persons employed by Respondent, including, as noted, Janice Starry.19 On August 25, Gardner met with E. Garson (Gar) Creps in the latter's office in response to Gar Creps' earlier request that employees submit operating suggestions, and represented a series of proposals. Later in that day, Creps told Gardner in the presence of a number of other employees that Respondent would adopt a number of his suggestions, including having the the same views as Gardner could leave with him. Without regard to the legality of Gardner's discharge, which will be discussed, infra, I find that the disputed statement in the context made, noting that Gardner, in fact, had redated the note, was too ambiguous to sustain a finding that Sec 8(axl) of the Act had been violated. 18 Joggers take printed sheets as they come off the press and manipulate (log) them into neat bundles capable of being put through the mailing machine or loaded onto a truck. 19 In seeking to impeach Gardner , Respondent argues that as Gardner, at the time of the hearing, was still in possession of the $105 he had long since collected in membership application fees on behalf of the Union, and, for several months since, had moved his home to Philadelphia, Gardner was not worthy of credence . Gardner, on the other hand, concedes that he had initially placed the Union's money in a local bank account under his own name and had thereafter taken the money with him to Philadelphia. However, Gardner testified without contradiction that at all times he had kept the Union informed of his whereabouts and that he had only been keeping the money until the Union authorized its disposition in writing. Although Gardner's continued possession of these funds under the circumstances described herein could be termed unusual, the record contains no evidence of a charge by the Union that Gardner had misappropriated the funds and there is no basis for me to make such a finding. Gardner's testimony that the money remained intact pending further communication from the Union, which he asserts knew where to find him, was not substantively challenged in the record 20 Gardner's timecard showed that he worked from 7.46 a.m on September II to 12:42 a .m. on September 12. The need to prepare advertising circulars in time for insertion in weekend newspaper editions frequently necessitated lengthy shifts late in the week emergency stop button on a press repaired, replacing the sink, and by possibly installing water coolers and showers for the men. Creps also gave Gardner permission to move some rolls of paper to safer positions. As noted, as a result of Gardner's organizational activities, a petition for a representation election was filed on September 8. On Thursday, September 11, Gardner and other press- room employees worked a 17-hour shift.20 Gardner, who testified that he had not been told what time to start his September 12 shift, arrived for work that day at 10:03 a.m., rather than at 8 a.m. Earlier, while being driven home from the long shift during the early hours of September 12, Gardner had asked Leone to tell Shaffer that he would be late for work as he did not feel well.21 Gardner also had telephoned the plant between 6 and 6:30 a.m. to tell Shaffer that he would be late. However, there was no response and Gardner went back to sleep. Before going to work on September 12, Gardner had also telephoned the wage and hours division to learn if employees could be made to work for as long as 12 hours without break and lunch periods and the Regional Office of the National Labor Relations Board to inquire as to whether the agency protected employees from discrimina- tion because of their union activities.22 Gardner testified that when he reported for work on September 12, approximately 2 hours late, he had respond- ed to Shaffer's query by apologizing for his tardiness. Shaffer told him that it was all right, to get to work, and to not worry about it. Gardner asked if a doctor's excuse was required. Shaffer said that one was not needed. According to Gardner, Shaffer did not request a doctor's note until September 15 23 In his original testimony, Gardner related that Shaffer initially had asked him for a doctor's note to excuse his September 12 lateness on September 15 when he arrived for work. On cross-examina- tion, Gardner related that, in fact, he had not worked on 21 Gardner contends that the work that he had performed during the lengthy shift had placed a strain on his back. 22 Gardner's testimony as to events that preceded his arrival at work on the morning of September 12 is partially corroborated and, in part, contradicted. Robert Wilson, a former pressroom employee of Respondent, testified that he had overheard Leone telling Shaffer that Gardner was going to see a physician that day, a message that Gardner had asked Leone to convey He had heard Shaffer reply that Gardner would be fired if he did not have a doctor's excuse. However, with respect to the starting time, Shaffer testified that he had informed various employees that the morning shift would began at 8 a.m. as they were washing or getting dressed at the conclusion of the long shift. Consistent with past practice, Shaffer fully expected that various employees would inform each of the morning starting time. This expectation appears to have been warranted as the various pressroom employees arrived for work on or about 8 o'clock with the exception of one other employee who arrived at 8:36 a.m. Only Gardner was later than that. Mailing and Driving Supervisor Paul Starry testified that he had been in the plant between 6 and 6:30 a.m. that day and had answered all incoming telephone calls. However , no calls had been received from Gardner I do not credit Gardner's testimony that he had attempted to telephone Shaffer at the plant on the morning of September 12. It is not reasonable to suppose that Shaffer would be there between 6 and 6:30 a.m. after having worked so late. 23 By prior arrangement, Gardner received permission to leave work early on September 12 and was not scheduled to return to work until Tuesday, September 15, in order that he might observe a religious holiday Accordingly, Gardner's timecard showed that he did not work on September 15. 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD September 15 but that Shaffer had requested the note during a brief personal visit he had made to the plant sometime during that day.24 On September 16, Shaffer again asked Gardner if he had brought a doctor's note. When Gardner stated that he did not bring it with him, Shaffer told him to bring it in the next day. Gardner promised to comply. On Wednesday, September 17, when, in response to his inquiry, Gardner told Shaffer that he still had not brought in the doctor's certificate, Shaffer told him that he would not be allowed to punch in until he brought in the note. When Gardner protested, Shaffer used an in-plant telephone to call Gar Creps, telling the latter that Gardner did not have the note. Gardner was put on the telephone. Creps, too told Gardner that he would not be allowed to punch in until he produced a doctor's note. Gardner asked if he would be paid for the time that he spent that day in obtaining the required document, or whether he could punch in only after he had brought in the note. Creps replied that Gardner could punch in immediately and be paid for the full day even though he was not to work until he presented the note. Gardner then left the plant and visited the office of Dr. Warren L. Whitten, a physician in Indiana, Pennsylvania. At Gardner's request, Whitten, after examination, gave him the following note, dated September 17: Mike Gardner was examined to-day at my office. He has a slight bronchial cold and redness of the pharynx. No fever. However, Whitten refused to grant Gardner's request that the note be backdated to September 12. Gardner concedes that, on leaving Whitten's office, he used a pen to change the numeral "7" the date so that it would read "September 12." He then returned to the plant and gave the altered note to Shaffer who, in turn, transmitted it to Garson Creps. On the morning of Monday, September 22, when Gardner arrived for work, he was summoned to Jack Creps' office for a meeting with Jack and Gar Creps and Shaffer. Jack Creps, who served as spokesman, told Gardner that it was his intention to record the conversa- tion.25 At Creps' suggestion that Gardner have a witness present, he ultimately requested that John Michael Leone, previously identified as a pressroom employee, be sum- moned. Accordingly, Leone was brought to the meeting. Jack Creps then handed Gardner Dr. Whitten's note and asked him to explain "the meaning of this." Gardner asked what he meant. Creps told him that it had been noted that the date had been altered and that Dr. Whitten, after examining the certificate, had affirmed that the date was 24 Gardner testified that he had left Philadelphia , where he had spent the holiday with his family, at approximately 12.01 a in. on September 15, preferring to drive at night, and, later that day, had visited the plant for less than 45 minutes Gardner explained that the purpose of that visit was to learn who was working and generally what had been going on at the plant. He does not recall at what time of day this visit took place 25 No tape recording was made of the conversation, however, as Creps had pushed the wrong button on the recording machine. 26 The above account of the September 22 meeting in Jack Creps' office is not in dispute 21 Wilson had been Gardner's first choice to serve as his witness during the earlier interview that day in Creps' office 28 Wilson related , however, that he had been absent all day on Saturday, not in his writing. Gardner admitted that he had changed the date. Creps then stated that, in view of this fact, there was no choice but to let Gardner go. Creps told Gardner that he felt an obligation to go back to the pressroom and explain to Gardner's fellow workers the reason why Gardner was being terminated so that there would be no misunderstanding. Gardner was told that he was welcome to be present during this explanation, if he so desired. When Gardner stated words to the effect that he would see about this, Creps angrily asked if that was a threat. At that point, all went to the pressroom.26 The press crew was just starting its work shift when Jack Creps called together those who were present, telling them that they had been gathered so that there would be no misunderstanding as to why Gardner was being let go. He then explained that Gardner had forged a doctor's excuse. Concurrently, photocopies of Dr. Whitten' s certificate, as altered by Gardner, were distributed among the assembled employees. Robert Wilson,27 then employed in Respon- dent's pressroom, arrived for work that morning approxi- mately 10 minutes late and heard Creps tell the pressroom employees that Gardner had been fired. Jack Creps, seeing Wilson, asked if he knew why Gardner had been fired. Wilson said that he did not. Creps then handed him a photocopy of the doctor's excuse, explaining that Gardner had forged it and that this would not be tolerated. Wilson testified that he then asked Creps if he needed a doctor's excuse because, on September 20, he had been off from work. Creps asked whether he had called in. Before Wilson could reply, Shaffer interjected that Wilson had done so.28 Creps responded that Wilson did not need a doctor's note as he had called in. The photocopies of Dr. Whitten's note were collected from the assembled employees and Jack Creps began to walk away. After proceeding a short distance, Creps stopped and turned and told the still- gathered employees that if any of them sympathized with or felt the way Gardner did, this would be the time to leave. Gardner who had been listening to this conversation from the top of some nearby stairs, descended a few steps and told the gathered employees. "Don't say a word fellows, this is exactly where we wanted to get them." Gardner then left the plant. In explanation of the foregoing, Pressroom Supervisor Shaffer testified that, although he was scheduled to run two presses on September 12, the operation of one press had to be delayed because of Gardner's lateness as there was insufficient personnel in the pressroom to operate both presses . When Gardner arrived at work 2 hours late that September 20, but had not telephoned Respondent , except that, in the evening of that day, he had called Shaffer to inquire as to whether the employees were scheduled to work on Sunday At that time, Shaffer had told him to bring a doctor's excuse on Monday, September 22, before he could come back to work However, although Wilson did not bnng a doctor's certificate that Monday, he was not reprimanded or otherwise disciplined. Shaffer, however, testified that Wilson, in fact, had called in to report his September 20 absence which had been excused. However, as Respondent concedes that at that time it did not have a uniform policy of requiring written physicians' certificates to excuse employees absences' based on illness, it is not necessary to make a credibility resolution with regard to the collateral point as to whether Wilson actually had "reported off' dunng his absence on September 20 CREPS UNITED PUBLICATIONS 715 day, he, in reply to Shaffer's inquiry, stated that he had been to a doctor in Blairsville29 Nothing further was said about a doctor's certificate at that time. However, about an hour or so later, Gardner asked Shaffer if he wanted a doctor's excuse and Shaffer replied that he did. Gardner returned to work without comment. After September 12, Shaffer did not see Gardner again until Tuesday, Septem- ber 16, for Gardner, as noted, had been granted several days off. On September 16, Shaffer, on his own initiative, asked Gardner for the promised doctor's excuse for his lateness of September 12. Gardner replied that he had not had time to obtain the note as he had been in Philadelphia and had not returned until late the night before. Gardner then went to work. When Gardner reported for work on the morning of September 17, Shaffer met him at the timeclock and asked for the physician's certificate, telling Gardner that he was not going to let him go to work until he produced it. Gardner heatedly retorted that he was not going to go clear to Blairsville after an excuse. Shaffer then telephoned Garson Creps on the house phone and explained the situation. As described above, Shaffer then put Gardner on the telephone and the two conversed. As a result of this conversation, Gardner was permitted to punch in immedi- ately and, while on Respondent's time, was required to obtain the doctor's excuse as required by Shaffer. Approximately 2 hours later, Gardner returned and gave Shaffer the note from Dr. Whitten, which, as noted, Shaffer passed on to Garson Creps. Shaffer testified that he did not look at the doctor's note except to see what it was. Later, however, it occured to Shaffer that although Gardner had told him that he had gone to a physician in Blairsville, the doctor on Gardner's note had an Indiana address. He mentioned this to Garson Creps. Jack Creps testified that it was a habit of Respondent's partners to come to the plant at 11 o'clock each night to discuss the next day's work and problems that had arisen during the day. When, in accordance with this practice, Creps had come to the plant on September 17, his brother, Garson, gave him the physician certificate submitted by Gardner, stating that there was something odd about that note. When Jack asked what he meant, Gar replied that although Gardner had said that he had seen a doctor in Blairsville, the note was from Dr. Whitten in Indiana. Jack examined the certificate and indicated to the others that one of the figures on the dateline of the note had been darkened. It was decided that the partners should visit Dr. Whitten to investigate whether the date had been altered. Jack Creps had known Dr. Whitten for many years. Dr. Whitten did not keep office hours on Thursday, September 18, but on the following day, Jack and Gar Creps, at midday visited Dr. Whitten's office, bringing with them his note. Both Dr. Whitten and his nurse told the Creps brothers that they had refused to grant Gardner's request that the note they had given to him on September 17 be backdated to September 12 and denied that the September 12 date then on the note had been written by Dr. Whitten. On the night of September 19, the Creps brothers discussed the altered doctor's excuse and decided to confront Gardner with it. In the absence of a showing of "gross error," Gardner would be dismissed. In accordance with this decision, the meeting with Gardner in Jack Creps' office took place on Monday, September 22, as described above, followed by Gardner's termination and Jack Creps' explanation thereof to the assembled pressroom employees. It was stipulated by the parties at the hearing that, during his employment with the Respondent, Michael Gardner had received no wage increases and had not been reprimanded, warned, or commended. Jack Creps explained that the 17-hour shift that Gardner and other pressroom employees had been obliged to work from Thursday, September 11, through the early morning hours of September 12 had been mandated by the deadlines that Respondent was required to meet in the course of its business. The advertising circulars printed by Respondent in its plant must be ready for timely insertion in various newspapers for distribution in advance of the sales promotions to which they relate. In the course of Respondent's weekly work cycle, shifts of that duration were not infrequently required toward the latter part of the week.30 Although it might seem harsh to pursue an employee on a matter of punctuality after he had worked so many consecutive hours, as was done in the case of Gardner, the only allowance that can be made must lie within the scope of Respondent's ability to meet its production requirements in a timely fashion and no more had been asked of Gardner than of any other employee. Although Gardner, as a jogger, was considered to be unskilled and had no special status within the plant, Respondent asserts a right to expect that all employees conduct themselves honestly. Jack Creps explained that even unskilled employees, such as Gardner, still had access to such confidential material as the sale prices to be printed on the advertising circulars produced by Respondent for its various customers. As these firms compete with each other in the retail sale of grocery products, they would be interested in acquiring such information in advance. Jack Creps related that Respondent previously had been accused by one of its customers of having divulged such information to its competitors prior to a sale. Although such charges proved unjustified and no employee was ever terminated for having engaged in such conduct, the foregoing incident illustrated the type of problem that could confront Respondent should its employees be less than trustworthy. At the time of Gardner's discharge, Respondent conced- edly had not pursued a uniform policy of requiring that all absent or late employees produce doctors' notes 31 Em- ployees who had been absent or late and had actually offered the doctor's excuse might be required to present one, but the requirement was not uniform, particularly when no note was offered. In this context, Shaffer testified 29 It was stipulated that Blairsville and Indiana , Pennsylvania, are hour shift as overtime premium pay is not paid until 40 hours have been approximately 15 miles apart. Gardner, however denies that he had told worked during a given week Shaffer that the physician he had visited on that day was in Blairsville. 31 Since Gardner's discharge, Respondent now uniformly follows such a 30 Gardner and other employees worked at straight time during the 17- policy 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that when Gardner had offered a doctor's note to excuse his September 12 lateness , Shaffer told him that he wanted it. Nonetheless, there is no necessary discrepancy between Respondent's policy as described above , and the testimony of several of the General Counsel's witnesses to the effect that they had not been required to produce doctors' certificates to explain periods of absence from their employment.32 Respondent contends that when Gardner failed to call in during his September 12 lateness, he had disregarded a published rule long emphasized by Respondent requiring that late or absent employees "report off." Accordingly, attention was directed to a photograph of a sign posted next to Respondent's timeclock which reads as follows: If you have to be absent from work on your shift or late - notify the office or crew chief immediately. - So you can be replaced on your shift.33 Respondent's witnesses also testified that but a few weeks before Gardner's discharge, Bob Harmon, another employ- ee, had been terminated for having failed to call in to explain his absence. Although Respondent has been in business since 1950, during which period more than 25 employees have been terminated, Jack Creps had no independent recollection having assembled employees to witness the discharge of another employee . Also, as no question of irregularity had arisen previously, no investigation has been conducted as to the validity of those doctors' excuses submitted in the past.34 In addition, the Creps brothers and Shaffer denied having knowledge of a union campaign until after the September 8 petition was filed and also denied knowing of Gardner's union activities, contending that his stature in the plant would not indicate him to be a logical leader and coordinator of a union organizational drive . In support of its position that Gardner was terminated solely for his wrongful alteration of the date of his doctor's excuse, Respondent notes that Gardner, on August 28, had received a cash advance on his earnings and had been given time off late in the afternoon of September 12 through 15 to observe his religious holiday. Respondent asserts that those courtesies to Gardner postdated the start of his alleged umon activities and are inconsistent with the General Counsel's theory that Respondent was hostile to Gardner because of his efforts on behalf of the Union. Conclusions It is well established that an employee's status as an ardent supporter and activist of a union does not insulate him against discharge for justifiable cause and the existence of valid grounds for discharge is no defense, 32 Accordingly , employees Robert Wilson , Donald Wheatcroft, Christo- pher Sarra, and Michael Barr testified as to periods when they had been late or absent for various periods of time without having reported off and had not been reprimanded or required to bring in physician 's certificates. 33 The photograph of the sign had been taken by Garson Creps shortly before the start of the instant hearing . While there was testimony to the effect that the sign had not always been in place , from the weight of the evidence, noting the reasonability of the requirement, I find that either that sign or one similarly phrased had been prominently displayed on Respondent's premises for many years 3' The only other time an employee was publicly discharged occurred in where a discriminatory motive is a factor in the employer's decision 35 The mere existence of valid grounds for discharge is no defense to a charge that the termination was unlawful, unless the discharge was predicated solely on those grounds and not by a desire to discourage union activity.36 All that need be shown by the General Counsel is that the employee would not have been fired but for the union animus of the employer.37 In viewing the record as a whole, I am persuaded that at least one reason for Gardner's discharge was his union activity.38 It is unnecessary to repeat at length the evidence demonstrating Respondent's strong hostility to self-organi- zation, which conduct has been found above to have been violative of Section 8(a)(1) of the Act. Respondent has interrogated employees concerning their union sympathies and activities, has threatened them with and engaged in reprisals should they select the Union as their collective- bargaining representative, and has warned its personnel that it would be futile to seek to support a union. The record also establishes that Gardner was the principal supporter and employee coordinator of the Union's organizational drive and that Respondent, through its supervisor, Janice Starry, had direct knowledge of Gard- ner's leading role in this campaign by August 31, on which date Gardner had collected a union application fee from her. In the week prior to Gardner's discharge, specific inquiries had been made about whether Gardner was president of the Union by Paul Starry of both his daughter, Janice, and of Donald Wheatcroft , an employee, and Shaffer, too, had strongly suggested to employee Barr in that same period - on or about September 12 - that Gardner was getting himself in trouble because of his union activities. It is further noted that Gardner's work performance and his general record for attendance and punctuality were not, except for the lateness of September 12, factors in his discharge. Although Respondent had no uniform policy requiring the production of physicians' excuse for employ- ee absence or lateness , unusual care had been taken not only to obtain a certificate from Gardner but also to study and verify the excuse after its receipt. Not only was the physician's note demanded and persistently pursued for a lateness that had followed a 17-hour work shift, even after, as noted above, Leone had told Shaffer that Gardner would be late that day, but the certificate was thereafter pondered and physically investigated by the top members of management. In so doing, they managed to work the matter into a schedule otherwise so demanding that they 1968 when James J. Creps terminated a female employee who, when asked, forthrightly admitted before other employees, also present at the time, that she had removed her name from a list of employees who were to work on a cleanup detail. 35 Sweeney & Company, Inc., v. N L R B., 437 F.2d 1127, 1133 (C.A. 5, 1971), Impact Die Casting Corporation, 199 NLRB 268,275 ( 1972). 36 N.LR B. v Symons Manufacturing Co., 328 F 2d 835, 837 (C.A. 7, 1964). 37 N LR B. v. Whitfield Pickle Company, 374 F.2d 576, 582 (C.A. 5, 1967) 38 N LR. B v. Tom Wood Pontiac, Inc, 447 F.2d 383, 386 (C.A 7, 1971). CREPS UNITED PUBLICATIONS 717 felt obliged to meet regularly at 11 p.m. to discuss their affairs.39 No other doctor's certificate had ever been investigated and Gardner was the Respondent's first employee to be terminated in 25 years before an audience of employees who had been assembled for that purpose. The employees so gathered were the first to hear an explanation for a discharge and were provided with photocopies of the incriminating document prepared for their scrutiny. This elaborate ceremony would appear to lend further support to the conclusion reached herein. For the foregoing reasons, noting also that Gardner had been discharged shortly after Respondent had received notice of the filing of the petition in the representation case, I find that the reason claimed by Respondent for Gardner's termination was pretextual and conclude that the General Counsel has established by a preponderance of the evidence that the discharge in substantial and control- ling part was motivated by union animus, in violation of Section 8(a)(3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY desist from in any other manner infringing upon the rights guaranteed employees in Section 7 of the Act 43 Upon the basis of the foregoing fmdings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. John H. Creps, E. Garson Creps and James J. Creps, a partnership, d/b/a Creps United Publications, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Typographical Union, Johnstown Ty- pographical Union No. 137, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. By unlawfully discharging Michael S. Gardner, Respondent has engaged in conduct calculated to discour- age membership in the above-named union, in violation of Section 8(a)(3) of the Act. 4. By the foregoing conduct and by coercively interro- gating employees concerning their union membership, activities, and sympathies, by engaging in and threatening employees with reprisals for participating in union activi- ties, and by warning employees that it would be futile to select a union as their collective-bargaining representative, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing fmdings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: Having found that Respondent has committed certain unfair labor practices, I shall recommend that Respondent cease and desist therefrom and that it take certain affirmative actions designed to effectuate the policies of the Act. Having found that Respondent unlawfully discharged Michael S. Gardner, I shall recommend that Respondent be ordered to reinstate the above-named employee to his former position or, if that position no longer exists, to a substantially equivalent position without prejudice to his seniority and other rights and privileges, and to make him whole for any loss of pay he may have suffered as a result of Respondent's unlawful conduct. Backpay shall be computed in the manner set forth in F. W. Woolworth Company, 40 with interest added thereto in the manner set forth in Isis Plumbing & Heating Co. 41 As Respondent's unfair labor practices indicate a general attitude of opposition to the purposes of the Act, a broad cease-and-desist order is necessary and appropriate to effectuate the policies of the Act 42 Accordingly, it is recommended that Respondent be ordered to cease and 39 See Leon Ferenbach, Inc., 213 NLRB 373, 384-385, where some of the considerations relied on herein were noted in finding that an employee had been unlawfully discharged although the Employer in that case contended that she had submitted a forged doctor's certificate. However, a material point distinguishing the Ferenbach case from the instant matter is that, in Ferenbach, the disputed doctor's certificate, in fact, had been authentic. 40 90 N LRB 289 (1950). 41 138 N LRB 716 (1962). ORDER44 John H. Creps, E. Garson Creps and James J. Creps, a partnership, d/b/a Creps United Publications, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against employees because of their union membership and activi- ties. (b) Coercively interrogating employees concerning their union activities and sympathies. (c) Threatening employees with reprisals or engaging in reprisals against employees for engaging in union activities. (d) Warning employees that it would be futile to select a Union as their collective-bargaining representative. (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self- organization, to form, join, or assist any labor organization, to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 42 N.L.R.B. v. Entwistle Mfg. Co, 120 F.2d 532, 536 (C A. 4, 1941). 43 N L. R. B v Express Publishing Company, 312 U S. 425, 433. 44 In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 718 DECISIONS OF NATIONAL 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to Michael S. Gardner immediate, full, and unconditional reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay that he may have suffered as the result of the discrimination against him in the manner set forth in that portion of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports and all other records necessary to analyze the amount of backpay due and ascertain reinstatement under the terms of this Order. (c) Post at its Indiana, Pennsylvania, plant, copies of the attached notice marked "Appendix."45 Copies of said 45 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board " shall read "Posted Pursuant LABOR RELATIONS BOARD notice, on forms provided by the Regional Director for Region 6, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that the said notices are not altered, defaced, or covered by any other material. (d) Notify the said Regional Director for Region 6, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS ALSO ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found herein. to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."