Creps United Publications

National Labor Relations Board - Board Decisions

Mar 15, 1977

228 N.L.R.B. 706 (N.L.R.B. 1977)

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."