Sheet Metal Workers' Union Local 355

SHEET METAL WORKERS' UNION LOCAL 355 Sheet Metal Workers' Union Local 355, Sheet Metal Workers' International Association, AFL-CIO (Zinsco Electrical Products) and David Martin Gilson. Case 20-CB-4818 January 26, 1981 DECISION AND ORDER On November 2, 1979, Administrative Law Judge Jerrold H. Shapiro issued the attached Deci- sion in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed cross-exceptions and a sup- porting brief. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. The General Counsel contends that the remedy given by the Administrative Law Judge is inad- equate as it fails to make the discharged employee, David Martin Gilson, whole for losses stemming from his unlawful discharge. We find merit in this exception. The Administrative Law Judge found that Re- spondent's acts leading to Gilson's discharge con- stituted a breach of its fiduciary duty to deal fairly with Gilson, and that it unlawfully caused Gilson's discharge in violation of Section 8(b)(1)(A) and (2) of the Act. As Zinsco Electrical Products, the Em- ployer, was not a party, Respondent alone was found to be responsible for Gilson's discriminatory discharge. To remedy this violation, the Adminis- trative Law Judge ordered Respondent to make Gilson whole for any loss of wages and benefits suffered as a result of Respondent's discrimination, terminating Respondent's backpay liability 5 days after Respondent had notified both Gilson and the Employer that it no longer objected to Gilson's re- instatement. As there was no culpability on the part of the Employer, there was no obligation on the Employer to reinstate Gilson. Therefore, if Gilson was not reinstated or failed to secure sub- stantially equivalent employment within 5 days after Respondent informed both Gilson and the Employer that it no longer opposed his reinstate- The Administrative Law Judge inadvertently referred to Respown- dent's husiness manager as Fred Ingles at sec IC,, par 3, and sec 1.C,2, par. 10. of his Decisiorn It is clear from the record that the name of Re- spondent's business manager is Edgar Ingles Respondent has excepted to certain credibility findings made b the Administrative I.aw Judge It is the Board's established polic) not to overrule an administrative law judge's resolutions with respect Ito credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect Standard Drr 'all Product,. Inc., 91 NLRB 544 (1950). enfd. 88 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis fr reversing his findings 254 NLRB No. 92 ment, Gilson would be forced to personally bear any further loss of wages and benefits. The remedy applied by the Administrative Law Judge was first established in Pinkerton's National Detective Agency, Inc. 2 In that case. both the em- ployer and the union were found to have violated the Act. The employer was ordered to reinstate the discharged employees and the employer and the union were held jointly and severally liable for wages the employees lost due to the unlawful dis- charge. The Board reasoned that, if the union will- ingly ceased its past discrimination, it would be in- equitable to hold the union responsible for further backpay if the employer refused to promptly rein- state the employees. It held, therefore, that the union's backpay liability would terminate 5 days after it notified the employer in writing that it no longer objected to reinstatement of the employees. From that point forward, the onus was placed on the employer to reinstate the employees or be re- sponsible for the employees' lost wages and bene- fits. Subsequently, in Pen and Pencil Workers Union, Local 19593, AFL (Parker Pen Company),3 a situa- tion arose where the union, alone, was found to have unlawfully caused an employer to discharge an employee. The employer was not a party and was therefore not liable for damages sustained by the employee as a result of unlawful discharge, nor obligated to reinstate the discharged employee. The Board, however, applied the same remedy set forth in Pickerron and tolled the union's backpay li- ability 5 days after the union notified both the em- ployer and the employee that it no longer objected to the employee's reinstatement. 4 As a conse- quence, if a wrongfully discharged employee is re- fused reinstatement by the employer or can not secure substantially equivalent employment within 5 days after the union's withdrawal of its objection to the employee's reinstatement, the wrongfully discharged employee, under Pen and Pencil Work- ers, is forced to personally sustain any and all re- maining damages stemming from the unlawful dis- charge. It is our opinion that further adherence to the remedy established in Pen and Pencil Workers is in- consistent with the proper and effective realization of the statutory policy which requires that a trans- gressor should bear the burden of the consequences 2 90 NLRB 205 (1950) ' 91 NlRB 83 (1950) ' T'he Board has since continued to appl the remiedy established in Pen and Penild Woarkcr, although e note one exception in Chauffeurs, I ,ltf:r, and Il/pers l.ocal 525 aflfiiuated ith International Brotherhrxod !/ I,/ma er. (haul/wur, t)rchouc en tand le/per of.-,I.r-rim a (.4mrj- ,an ( olloid (mpanyi 22 NI.RB 572 (1'i731 773 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stemming from its illegal acts. Accordingly, to the extent that Pen and Pencil Workers and any related cases provide for a remedy inconsistent with that set forth in this opinion, they are hereby overruled. We shall henceforth, in cases such as this where a union unlawfully causes an employer to discharge an employee for not complying with the union-se- curity provisions of their collective-bargaining agreement in violation of Section 8(b)(1)(A) and (2) of the Act, and there is no culpability on the part of the employer, apply the following remedy. First, the union must notify the employer and the em- ployee that it no longer objects to the employee's reinstatement with the employer. Second, the union must affirmatively request the employer to reinstate the employee. Finally, the union shall be required to make the employee whole for all losses of wages and benefits suffered by the employee as a result of the union's discrimination against the employee until the employee is either reinstated by the em- ployer to his or her former or substantially equiv- alent position or until the employee obtains sub- stantially equivalent employment elsewhere. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Sheet Metal Workers' Union Local 355, Sheet Metal Workers' International Association, AFL- CIO, its officers, agents, and representatives, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph 2(a): "(a) Make David Martin Gilson whole for any loss of wages and benefits suffered by reason of the discrimination against him from the date of his dis- charge to the date of his reinstatement by Zinsco Electrical Products to his former or substantially equivalent job or to the date he secures substantial- ly equivalent employment with some other employ- er, less his net earnings during this period. The loss of earnings shall be computed in the manner pre- scribed in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest on the backpay due com- puted in accordance with Board policy set out in Isis Plumbing & Heating Co., 138 NLRB 716 (1962), and Florida Steel Corporation, 231 NLRB 651 (1977)." 2. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT cause or attempt to cause Zinsco Electrical Products to discriminate against David Gilson or any other employee in violation of Section 8(a)(3) of the Act. WE WILL NOT prosecute our Complaint for Declaratory Relief, styled as Sheet Metal Workers Union Local 355 v. David Martin Gilson (File No. 521286-4, Superior Court of California, County of Alameda), which arose out of David Gilson's filing of unfair labor practice charges with the National Labor Re- lations Board. WE WILL NOT in any like or related manner restrain or coerce employees of Zinsco Electri- cal Products in the exercise of the rights guar- anteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor or- ganization as a condition of employment as au- thorized by Section 8(a)(3) of the Act. WE WILL make David Gilson whole, with interest, for any loss of wages and benefits suf- fered by reason of the discrimination against him from the date of his discharge to the date of his reinstatement by Zinsco Electrical Prod- ucts to his former or substantially equivalent job or to the date that he secures employment with some other employer substantially equal to that which he formerly had with Zinsco Electrical Products. WE WILI. withdraw our Complaint for De- claratory Relief, styled as Sheet Metal Workers Union Local 355 v. David Martin Gilson (File No. 521286-4, Superior Court of California, County of Alameda), which we caused to be instituted against David Gilson, and reimburse David Gilson for all legal expenses he has in- curred in the defense thereof. SHEET METAL WORKERS' UNION LOCAL 355, SHEET METAL WORK- ERS' INTERNATIONAL ASSOCIATION, AFL-CIO DECISION STATEMENT OF THE CASE JERROID H. SHAPIRO, Administrative Law Judge: The hearing in this case was held on July 26, 1979, and was based on an unfair labor practice charge filed on March 774 SHEET METAL WORKERS' UNION LOCAL 355 9, 1979, as amended on July 20, 1979, by David Martin Gilson against Sheet Metal Workers' Union Local 355, Sheet Metal Workers' International Association, AFL- CIO, herein called Respondent Union. On April 27, 1979, the General Counsel of the National Labor Rela- tions Board issued a complaint based on Gilson's charge alleging that Respondent Union engaged in unfair labor practices within the meaning of Section 8(b)(l)(A) and (2) of the National Labor Relations Act, as amended, herein called the Act, by causing Gilson's discharge for failure to pay his dues and initiation fees to Respondent Union "in the circumstances where Respondent granted Gilson an extension of time beyond his discharge date to pay said dues and initiation fees and where Respondent failed to notify the Employer of said extension." The complaint was amended at the hearing based on Gilson's amended charge to further allege that Respondent Union violated Section 8(b)(l)(A) of the Act "by filing a com- plaint for declaratory relief in the Superior Court . .. al- leging it has been damaged in the amount of $30,000 by Gilson's claims to the contrary because Gilson filed unfair labor practice charges with the Board in [the in- stant case]." Reapondent Union filed a timely answer, as amended at the hearing, denying the commission of the alleged unfair labor practices.' Upon the entire record, from my observation of the demeanor of the witnesses, and having considered the post-hearing briefs, I make the following: FINDINGS OF FACT 1. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts: A Chronology Zinsco Electrical Products, the Employer herein, man- ufactures electrical switchboards at its facility in Sacra- mento, California. The Charging Party, David Gilson, was employed by the Employer from July 7, 1978, until February 9, 1979.2 Respondent Union represents an appropriate unit of the Employer's employees and during the time material herein was a party to a collective-bargaining contract with the Employer covering these employees. The con- tract contained a valid union-security provision. In July 1978 when he started to work for the Employ- er, Gilson, who was employed in the unit of employees represented by Respondent Union, joined Respondent Union and remained current in his monthly dues pay- ments until September 1978 when he stopped making dues payments. On January 2 Respondent Union's princi- pal official, its secretary-treasurer and business manager, Edgar Ingles, wrote Gilson and informed him that his union membership was suspended effective November 30, 1978, for nonpayment of dues, and explained to Gilson the steps which were necessary to reinstate his I Respondent Union admits that it is a labor organization within the meaning ofr Sec, 2(5) of the Act. Respondent Union also admits that the Employer involved in this case, Zinsco Electrical Products. is an employ- er engaged in commerce within the meaning of Sec. 2(6) and (7) of the Act and meets the National Labor Relations Board's applicable discre- tionary jurisdictional standard. Therefore, I find that it will effectuate the purposes of the Act to assert jurisdiction herein. 2 Unless otherwise specified, all dates herein refer to 1979 membership. Gilson ignored the letter because other em- ployees who received similar letters had ignored them without repercussions. On February I, Ingles wrote Gilson and the Employ- er's production manager, David Kelly, informing them that Respondent Union had suspended Gilson's member- ship in it effective November 30, 1978, and that Respon- dent Union, in accordance with the union-security provi- sion in the governing collective-bargaining contract, re- quested the Employer to terminate Gilson "within five working days of receipt of this letter unless he can show proof in the form of a receipt from [Respondent Union's office] that he paid what he owed." The letter instructed Gilson "to contact [Respondent Union's office] immedi- ately to make arrangements to put himself back in good standing in this local union." On Monday, February 5, Kelly and Gilson each received the aforesaid letter. Gilson received the letter in the mail at noontime when he went home for lunch. Gilson understood from reading the letter that, unless he paid the money he owed Re- spondent Union by Friday, February 9, the Employer would terminate him. On either Monday, February 5, or Tuesday, February 6, Gilson asked Respondent Union's shop steward, Donald Rhode, to phone Respondent Union about the money Gilson owed. Later that day Rhode told Gilson that he had phoned Respondent Union's office and had been advised that Gilson owed $35.25, which had to be paid by Friday, February 9. On either Tuesday, February 6, or Wednesday, Febru- ary 7, Production Manager Kelly phoned the president of Respondent Union, Gilbert Corvello, the representa- tive of Respondent Union who normally administered Respondent Union's contract with the Employer. Kelly asked whether Respondent Union was really serious about having Gilson terminated if his dues were not paid by Friday, February 9. Corvello assured Kelly that Re- spondent Union meant what it had said in its February I letter requesting Gilson's termination. On Wednesday, February 7, Gilson, at the start of the work shift, notified Union Steward Rhode that he in- tended to pay the money he owed Respondent Union in order to reinstate his membership, but would be unable to do so until Thursday, February 8, when he received his paycheck. Gilson asked Rhode to transmit this mes- sage to Respondent Union's officials. Rhode, at this time, phoned Ingles and, while Gilson listened to the conver- sation on an extension phone, Rhode told Ingles that Gilson intended to pay the money he owed Respondent Union on Thursday, February 8, as soon as he received his paycheck. Ingles instructed Rhode to be sure that Gilson "gets it in by Friday." On Thursday, February 8, Marcus McNair, Gilson's foreman, asked whether Gilson intended to pay the dues he owed Respondent Union. Gilson replied that, as soon as he cashed his paycheck, he intended to drive to Re- spondent Union's office in Oakland, California, a distance of approximately 85 miles, and pay his dues. Later that day, after he received his paycheck, Gilson, at approxi- mately 3:50 p.m., phoned Ingles. He introduced himself and reminded Ingles that he (Gilson) was supposed to 775 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pay the money he owed Respondent Union by Friday, February 9, and asked whether Ingles wanted him to drive immediately to Respondent Union's office in Oak- land with the money or to mail it to Respondent Union's office. Gilson expressed his doubt that the mail would deliver the money on time. Ingles told Gilson to mail the money rather than personally deliver it, and that he (Ingles) would talk with Respondent Union's president about the matter. Gilson stated that he did not want to jeopardize his job and asked whether Ingles was positive it was all right for him to mail the money to Respondent Union's office. Ingles told Gilson "not to worry about it, he would talk to [Corvellol" and told Gilson to "go ahead and mail it in." Gilson followed Ingles' instruction. On February 8, immediately after he talked with Ingles, Gilson mailed a money order for $35.25 to Respondent Union's office. Respondent Union did not receive the money until Monday, February 12. On Friday, February 9, Production Manager Kelly phoned Respondent Union to speak to Corvello in order to determine whether Gilson had paid his dues. The person who answered the phone stated that Corvello was not there, so Kelly asked whether the person who answered the phone was familiar with Gilson's situation and whether Respondent Union had received Gilson's dues payment. The unidentified person, presumably a secretary, stated that she was familiar with Gilson's situa- tion and told Kelly that Respondent Union had not re- ceived any money from Gilson. That same day Foreman McNair advised Gilson that the Employer had been noti- fied that Respondent Union had not received Gilson's money. Gilson informed McNair that he had mailed his dues to Respondent Union the previous evening. Later, near the end of the workday, McNair handed Gilson a slip which indicated that he was terminated for nonpay- ment of his union dues. Gilson protested his termination. Gilson told McNair again that he had mailed his dues to Respondent Union the previous evening. McNair sug- gested that Gilson return to the plant the next workday, Monday, February 12, and talk to Respondant Union's steward, Rhode, about the matter.3 On February 9, after being terminated, Gilson immedi- ately phoned Ingles. Gilson asked Ingles what had hap- pened as he had spoken to Ingles about his dues the pre- vious day and had followed Ingles' instruction and mailed the dues to Respondent Union's office, yet had been terminated. Ingles replied that Respondent Union had not received Gilson's dues and that Gilson would have to discuss the matter with the president of Respon- dent Union, Corvello, who was not in the office at that time. 4 Later that evening Ingles phoned Gilson and told him that he knew a couple employers where Gilson might find employment and told Gilson to phone him Monday to get the names of these employers. I The description of McNair's February 9 conversations with Gilson is based on Gilson's testimony. Gilson impressed me as a more reliable wil- ness than McNair; thus, I have rejected McNair's version of these con- versations to the extent they do not coincide with Gilson's. I I reject Crvello's testimony that Ingles was absent from Respondeint Union's office on February 9 Corvello, as I have indicated infra, did not impress me as a trustworthy itness. Gilson appeared to he the more credible witness On Monday, February 12, at the start of the workday, Gilson visited the plant and spoke to Respondent Union's shop steward, Rhode, who had been absent from work the previous Friday. Gilson told Rhode he had been dis- charged on February 9 despite the fact that on Thurs- day, February 8, he had spoken to Ingles and that, pur- suant to Ingles' instruction on February 8, mailed the money he owed Respondent Union to Respondent Union's office. Rhode promised he would phone Respon- dent Union's office later that day when it opened for business and check into the matter. Thereafter, at ap- proximately 9 a.m. on February 12, Rhode phoned Ingles. He told Ingles that Gilson had stated he had been discharged despite the fact that he had complied with Ingles' instruction to mail his dues to Respondent Union's office on February 8 rather than to personally deliver it. Ingles indicated that Respondent Union had received Gilson's money. Rhode stated that he thought Gilson had been treated unfairly, inasmuch as there had apparently been a lack of communication between Ingles and Gilson. Ingles at this point specifically admitted to Rhode that on Thursday, February 8, he had told Gilson it was all right for Gilson to mail his dues to Respondent Union rather than personally deliver the money. Rhode asked why, if this were true, Gilson had been terminated. Ingles did not answer this question; instead, he asked whether Rhode thought the Employer would rehire Gilson. Rhode answered, "No." This concluded Rhode's conversation with Ingles, at which time Rhode spoke to Gilson and told him that Ingles had asked Rhode if the Employer "would put him back" and that Rhode had in- dicated that the Employer would not do this because it had already hired Gilson's replacement. Also, Rhode told Gilson that he had no explanation for Gilson's ter- mination since Gilson had followed Ingle's instruction. Gilson left the plant. Thereafter, the same day, Rhode in- formed Production Manager Kelly that he had talked to Ingles about Gilson's termination and thought there had been a lack of communication between Ingles and Gilson. Rhode told Kelly that Ingles had asked him whether the Employer would "put [Gilson] back" to work. Kelly stated that the Employer would not rein- state Gilson because his replacement had already been hired. As described supra, the previous Friday Ingles had ad- vised Gilson to phone him on Monday, at which time Ingles would furnish him with the names of employers from whom Gilson might secure employment. So, on Monday, February 12, at approximately 3:30 p.m., Gilson phoned Ingles, who advised him that Respondent Union had received his dues in the mail and gave Gilson the names of two employers where he could apply for work and indicated that one of them, Sacramento Sheet Metal, should employ him. The next day Gilson phoned Ingles and told him he had applied for work at Sacramento Sheet Metal and was told by a representative of that company that it had no job openings. Ingles stated that he had been advised by a representative of Sacramento 776 SHEET METAL WORKERS' UNION LOCAL 355 Sheet Metal that Gilson had not shown up at that com- pan y. 5 On Monday, February 12, in the morning, Production Manager Kelly phoned Respondent Union's office and spoke to Ingles, who advised him that the Employer had correctly terminated Gilson because Respondent Union had not received his dues. Kelly informed Ingles that Gilson's replacement had already started work. Later that day or the next day, after receiving Gilson's dues money, Ingles phoned Kelly and, as Kelly testified, "he [Ingles] asked me if I could reinstate [Gilson]." Kelly in- dicated he would not reinstate Gilson because Gilson's replacement had begun work. On Thursday, February 15, at approximately 9:45 a.m., Gilson phoned Respondent Union's president, Corvello, and told him that on February 8 he had followed Ingles' instruction to mail his dues to Respondent Union's office rather than personally deliver them, yet had been dis- charged. Gilson also advised Corvello that another em- ployee, Rod Guest, who was delinquent in his dues and had been discharged the same day as Gilson, had been reinstated by the Employer. Corvello replied that if the Employer had rehired Guest, it had to rehire Gilson. Corvello stated he would check into the matter and "would see what he could do" for Gilson and would phone Gilson. When Corvello had not phoned by 4 p.m., Gilson phoned him and asked whether he (Gilson) was going to get his job back. Corvello answered, "No." Corvello told Gilson that his dues had not been received by Respondent Union on time and that employee Guest did not receive his termination letter from Respondent Union until February 6, so Guest had until February 12 to transmit his dues to Respondent Union, which was why he was rehired by the Employer. 6 On March 9, Gilson filed the unfair labor practice charge in this case alleging, in essence, that Respondent Union violated Section 8(b)(2) of the Act by causing the Employer to terminate his employment. On April 27 the complaint issued in the instant case al- leging that Respondent Union violated Section 8(b)(2) and (1)(A) of the Act by causing the Employer to dis- charge Gilson for failing to tender his dues and fees "in the circumstances where Respondent granted Gilson an extension of time beyond the discharge date to pay said dues and initiation fees and where Respondent failed to notify the Employer of said extension." The description of Gilsons's above-described conversations with Ingles is based on Gilson's testimony, which conflicts in certain signifi- cant respects with the description set forth in Ingles' affidavit As I have indicated infra, the statements contained in Ingles' affidavit are not reli- able. This plus the fact that Gilson impressed me as a reliable and sincere witness has prompted me to accept Gilson's testimony over the version set forth in Ingles' affidavit. 6 The description of Gilson's February 15 phone conversations with Corvello is based on Gilson's testimony, which sharply conflicts with Corvello's. I have credited Gilson because he impressed me as the more credible witness. Corvello did not impress me as a sincere witness. It is for this reason that I have also rejected Corvello's testimony that ngles was not present at Respondent Union's office on February 9 and his fur- ther testimony that on February 15, after his initial conversation with Gilson, he phoned Kelly and asked if Kelly would put Gilson back to work. I also note that Kelly was not able to corroborate Corvello's testi- mony in this last respect On May 14, Respondent Union, through its lawyer, prepared a "Complaint for Declaratory Relief' against Gilson, which Respondent Union filed on May 21 in the Superior Court of California, County of Alameda. On June 27 the complaint was served on Gilson. The first five paragraphs in substance allege that Gilson was dis- charged by the Employer at Respondent Union's request pursuant to a union-security agreement for failing to pay his dues. The remainder of the complaint alleges: 6. Defendant David Martin Gilson claims that [Respondent Union] gave him an oral extension of time until February 12, 1979, in which to pay his dues. [Respondent Union] denies that any such oral extension was given. 7. David Martin Gilson claims that [Respondent Union] has breached its fiduciary duty to him by having him terminated from employment by [the Employer]. [Respondent Union] denies it has breached its duty of fair representation and/or fidu- ciary duty towards Gilson. 8. An actual and present controversy exists be- tween the parties regarding the questions referred to above. 9. [Respondent Union] has been damaged in the sum of $30,000 by the conduct of defendant David Martin Gilson. WHEREFORE, plaintiff prays that this Court enter its judgment for declaratory relief, for damages and for such other and further relief as to this Court seems just and proper. B. Credibility There is a sharp conflict in the evidence pertaining to the essential question of whether, on February 8, Ingles told Gilson that it was permissible for Gilson to transmit his back dues to Respondent Union by mail instead of driving the approximately 85 miles to Respondent Union's office to personally deliver the money. As de- scribed in detail supra, I have credited the testimony of Gilson that, on February 8, Ingles told him to mail the dues money instead of personally delivering the money. In the affidavit Ingles furnished the Board during the in- vestigation of this case, Ingles specifically denied saying this; rather, the affidavit states that Gilson, on February 8, told Ingles he intended to mail his dues and in re- sponse Ingles warned Gilson that the money would not get to Respondent Union's office by Friday, February 9.7 I have credited Gilson because he gave his testimony in a straightforward and persuasive manner and his de- meanor was that of a sincere witness. Moreover, Respon- dent Union's steward, Rhode, who was a particularly im- pressive witness, corroborated Gilson's testimony. Rhode testified that, on February 12, Ingles admitted to him that, on February 8, he had given Gilson permission to I ngles did not testify in this proceeding because he was unavailable due to illness. Respondent Union elected to rest its case-in-chief without Ingles' testimon However. the parties stipulated that, if Ingles had been called as a witness, he would have given the identical testimony as set forth in his affidavit 777 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mail the money he owed Respondent Union instead of personally delivering it himself.8 C. Conclusionary Findings 1. Gilson's discharge The General Counsel contends that Respondent Union, in violation of Section 8(b)(2) and ()(A) of the Act, breached its fiduciary duty owed Gilson by failing to notify the Employer that it had granted Gilson an ex- tension of time to comply with his obligation under the contractual union-security provision, thereby resulting in the Employer's honoring Respondent Union's request for Gilson's discharge. I agree. The law is settled that a union seeking to enforce a union-security agreement against an employee has a fidu- ciary duty to "deal fairly" with the employee affected. "At the minimum, this duty requires that the union inform the employee of his obligations in order that the employee may take whatever action is necessary to pro- tect his job tenure." N.L.R.B. v. Hotel, Motel, and Club Employees' Union, Local 568, AFL-CIO [Philadelphia Sheraton Corp.], 320 F.2d 254, 258 (3d Cir. 1963). Accord: General Teamsters Local 162, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America [Platt Electric Supply, Inc.] v. N.L.R.B., 568 F.2d 665, 668-669 (9th Cir. 1978); H. C. Macaulay Foundry Co. v. N.L.R.B., 553 F.2d 1198, 1201 (9th Cir. 1977). The facts, which have been described in detail supra, establish that Respondent Union, in enforcing the con- tractual union-security provision against Gilson, did not meet its minimum fiduciary obligation. Gilson knew that it was necessary for him to pay $35.25 by Friday, Febru- ary 9, or the Employer would comply with Respondent Union's request for his discharge. So, in order to protect his job, Gilson intended to pay this money to Respon- dent Union on Thursday, February 8, the day he re- ceived his paycheck. On February 8, after work, Gilson intended to personally deliver the money to Respondent Union's office. However, on February 8, Respondent Union's principal official, its secretary-treasurer and busi- ness manager, Fred Ingles, instructed Gilson to mail the money to Respondent Union's office instead of driving the approximately 85 miles to Respondent Union's office to personally deliver the money. When Gilson expressed his concern to Ingles that the mail would not deliver the money to Respondent Union by February 9, Ingles as- sured Gilson that, if the money were delayed in the mail and did not arrive by February 9, Gilson's job would not be in jeopardy. Gilson, relying on Ingles' representation, mailed the money on February 8. The result was that the envelope which contained Ingles' money did not reach Respondent Union's office on February 9.9 Since Re- I reject Ingles' assertion, set forth in his affidavit, that he never spoke to Rhode about Gilson during the week of February 5 or on February 12. Rhode, as I have indicated supra, was a credible witness. Moreover, it is inherently probable that, when confronted with a threat to his employ- ment and his actual termination, Gilson would turn to his shop steward, and that the shop steward would have contacted Ingles, the person whose letter was responsible for Gilson's termination 9 I think it is a fair inference that, when Ingles spoke to Gilson on Feb- ruary 8, Ingles must have realized that it was extremely doubtful that a spondent Union did not notify the Employer that it was not requesting Gilson's discharge or otherwise notify the Employer to postpone acting on its request for Gilson's discharge, the Employer went ahead on February 9 and discharged Gilson in accordance with Respondent Union's previous request when it learned that Respon- dent Union had not received Gilson's money. The aforesaid circumstances demonstrate that, in order to comply with his obligation under the governing union-security agreement, Gilson acted exactly as Re- spondent Union instructed him, yet was discharged at the request of Respondent Union for violating the union- security agreement. I cannot imagine a clearer violation by a labor organization of its fiduciary duty of fair deal- ing in the enforcement of a union-security agreement against an employee. I reject Respondent Union's con- tention that its misconduct was excused because Gilson failed to notify the Employer that Ingles had told him that his union-security obligation would be satisfied if he mailed the dues he owed to Respondent Union on Febru- ary 8 rather than personally deliver them. In my opinion, it was Respondent Union's obligation as a part of its fi- duciary duty to deal fairly with Gilson, not Gilson's, to notify the Employer that Ingles had in effect modified the terms of Respondent Union's request for Gilson's dis- charge. ' Based on the foregoing, I find that Respondent Union failed to fulfill its fiduciary duty to afford Gilson an op- portunity to comply with the governing union-security agreement so that he could protect his job tenure, and that, because of this, it unlawfully caused his discharge in violation of Section 8(b)(2) and ()(A) of the Act. 2. The civil suit The complaint in this case alleges that Respondent Union violated Section 8(b)(l)(A) of the Act by filing a Complaint for Declaratory Relief in the state superior court against Gilson, seeking monetary damages from Gilson for filing the unfair labor practice charge in this proceeding against Respondent Union. On March 9, Gilson filed the unfair labor practice charge, which, in substance, alleges that Respondent Union violated the Act by causing the Employer to ter- minate his employment. Gilson has not raised this claim before any other administrative agency or court. On April 27, the Regional Director for Region 20, on behalf of the Board's General Counsel, issued a com- plaint against Respondent Union, based on Gilson's charge, which alleges, in substance, that Respondent Union impermissibly caused the Employer to discharge letter mailed by Gilson in Sacramento, California, at approximately 4 p.m. on February 8 would arrive at Respondent Union's office in Oak- land, California, the next day. ' I reject Respondent Union's further contention that the dispute cov- ering Gilson's discharge be deferred to the parties' contractural griev- ance-arbitration procedure. Deferral is inappropriate inasmuch as Gilson's discharge involves allegations affecting individual rights under Sec. 7 of the Act. See General American Transportation Corporation, 228 NLRB 808 (1977). Moreover, Gilson's interest is opposed to the position of Respon- dent Union. which caused his discharge, and is opposed to the interest of the Employer, which does not desire to reinstate him; thus, for this addi- tional reason deferral is not appropriate E.g., Kansas Meat Packers a Di- vision of Aristo Foods. Inc.. 198 NL.RB 543 (1972). 778 SHEET METAL WORKERS' UNION LOCAL 355 Gilson for not complying with the union-security provi- sion in the contract between Respondent Union and the Employer. The complaint further alleges that the reason that Respondent Union's conduct violated the Act was that Respondent Union had granted Gilson an extension of time to comply with the contractual union-security provision, but failed to notify the Employer about the extension. On May 21, Respondent Union filed a Complaint For Declaratory Relief against Gilson in the Superior Court of California, County of Alameda, which alleges that Gilson was falsely claiming that (I) Respondent Union granted him an oral extension of time to comply with the union-security provision of its contract with the Employ- er, and (2) Respondent Union had violated its fiduciary duty toward him by causing the Employer to terminate him for violating the contractual union-security provi- sion. The complaint further alleges that Respondent Union was damaged in the sum of $30,000 by Gilson's aforesaid conduct and asked the court to enter "its judg- ment of declaratory relief, for damages and for such other and further relief as to this Court seems just and proper." The foregoing undisputed facts establish that Respon- dent Union's civil suit was filed because Gilson filed an unfair labor practice charge against Respondent Union alleging that Respondent Union caused the Employer to discharge Gilson in violation of the National Labor Rela- tions Act. Thus, the conduct attributed to Gilson in the civil suit for which Respondent Union seeks damages is Gilson's allegedly false claims that: (I) Respondent Union granted him an extension of time to comply with the union-security provision in Respondent Union's con- tract with the Employer and (2) Respondent Union, in derogation of the fiduciary duty it owed Gilson, caused the Employer to discharge him for failing to comply with the contractual union-security provision. These are the same contentions which Gilson urged in support of his unfair labor practice charge, which alleges that Re- spondent Union illegally caused his discharge. Likewise, they are the same contentions raised in the General Counsel's complaint which is based on Gilson's charge. These considerations, plus the fact that Respondent Union's civil suit was filed hard on the heels of the Gen- eral Counsel's complaint which was based on Gilson's charge and the fact that Gilson did not express his con- tentions about Respondent Union's conduct to any other administrative agency or court, persuades me that Re- spondent Union filed its civil suit against Gilson because Gilson filed the instant unfair labor practice charge alleg- ing that Respondent Union illegally caused his discharge. Clearly, a lawsuit for damages against an employee based on the fact that the employee filed an unfair labor practice charge with the Board carries with it a serious potential for discouraging employees from filing such charges. By filing such a lawsuit in the instant case, Re- spondent Union placed the employees whom it repre- sents on notice that, if they filed charges with the Board, the employees would be subjecting themselves to a dev- astating lawsuit. Here, Gilson was placed on notice by the complaint filed by Respondent Union that he might have to pay Respondent Union $30,000 if the court de- cided in Respondent Union's favor. Of even more signifi- cance, however, is the fact that Gilson was required to retain legal counsel to defend himself against Respondent Union's lawsuit. Thus, even if the lawsuit is dismissed in state court, Gilson will have suffered a significant prop- erty loss as a direct consequence of his having filed a charge with the Board. It is for all of these reasons that civil actions filed by either employers or unions against employees which seek damages from the employees be- cause they have filed charges with the Board have a nat- ural tendency to discourage employees from exercising their statutory right to file unfair labor practice charges with the Board. As a result, the Board, in the administra- tion of the Act, is obligated to place such lawsuits under close scrutiny. See Power Systems, Inc., 239 NLRB 445 (1978). However, the Board has long held that, despite the chilling effect on employees' statutory rights caused by the filing of a lawsuit, as a matter of policy the "Board should accommodate its enforcement of the Act to the right of all persons to litigate their claims in court, rather than condemn the exercise of such right as an unfair labor practice." Clyde Taylor, d/b/a Clyde Taylor Company, 127 NLRB 103, 109 (1960). It is where the filing of a civil lawsuit not only tends to foreseeably dis- courage employees from exercising their statutory rights, but was brought in order to pursue an unlawful objec- tive, that the Board will conclude that the filing of the lawsuit violates the Act. See Power Systems, Inc., 239 NLRB 445, and cases cited at fn. 19. In other words, the question presented for decision in this case is whether "the lawsuit had as its purpose the unlawful objective of penalizing [Gilson] for filing a charge with the Board, and thus, depriving him of, and discouraging employees from seeking, access to the Board's processes." Power Systems, Inc., 239 NLRB at 450. In Power Systems, the Board found that an employer violated Section 8(a)(4) and (1) of the Act by filing a civil complaint for "wrongful use of civil proceedings" against an employee who had filed a nonmeritorious unfair labor practice charge against the employer alleg- ing that he was unlawfully discharged. II The complaint sought to recover the legal expenses incurred by the em- ployer in defending against the nonmeritorious unfair labor practice charge, which the employer alleged had been filed without probable cause and for the purpose of harassment, as well as an injunction restraining the em- ployee from filing any future charges against the employ- er. The Board reasoned that, first, the record established that the employee did not lack probable cause for filing the charge and did not file it for the purpose of harassing the employer and, second, that the evidence relied on by the employer in filing its complaint was clearly insuffi- cient to support the allegations contained therein. Thus, the Board concluded: I The fact that Power Systems involves Sec. 8ta)(4) of the Act and the instant case involves Sec. 8(b)(l)(A) is not significant inasmuch as "the Board has construed Section 8(b)(1)(A) of the Act as extending protec- lion similar to that provided by Section 8(aH(4) to persons who file charges against labor organizations." Power Systems. Inc., 239 NLRB at 448, citing Local 138. Internotional Union of Operating Engineers. .4FL- CIO (Charles S. Skura), 148 NlRB 679 (1964) 779 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent had no reasonable basis upon which to assert that [the employee's] single charge with the Board was filed without probable cause or to harass it, and the nature of its lawsuit was clearly aimed at penalizing [the employee] for having utilized the Board's processes against Respondent. [239 NLRB at 449.] The Board found that the doctrine of Clyde Taylor Com- pany, supra, did not preclude it from basing any finding of an unfair labor practice on the filing of the lawsuit be- cause the lawsuit was brought in order to pursue an un- lawful objective of penalizing the employee for filing a charge, thus depriving him of access to Board processes and discouraging its employees generally from seeking such access. Power Systems, Inc., 239 NLRB at 449-450. Preliminarily, I note that in the instant case there is no evidence that Gilson's charge was based on allegations known by Gilson to be false or that the charge was filed in bad faith or for any other unlawful motive. Quite the contrary, the record, as described in detail supra, over- whelmingly demonstrates that Gilson had probable cause to file his charge against Respondent Union. Regarding the central question of Respondent Union's motivation for filing its civil action, the complaint filed by Respondent Union alleges that Respondent Union "has been damaged in the sum of $30,000 by the conduct of defendant David Martin Gilson." (Emphasis supplied.) An examination of the allegations of the complaint re- veals that "the conduct" of Gilson referred to therein is Gilson's allegedly false claims that Respondent Union "gave him an oral extension of time until February 12, 1979, in which to pay his dues" and "breached its fidu- ciary duty to him by having him terminated from his em- ployment by (the employer]." But, as described in detail supra, Respondent Union's principal official, its secre- tary-treasurer and business manager, Fred Ingles, did in fact grant Gilson an oral extension of time to pay his dues, but, in derogation of Respondent Union's fiduciary duty owed Gilson, failed to notify the Employer of the extension, thus resulting in the Employer's honoring Re- spondent Union's discharge request. Also, as described in detail supra, Ingles, as well as Respondent Union's shop steward, Rhode, knew that Ingles had granted Gilson the extension and had this knowledge prior to the filing of Respondent Union's lawsuit. In short, Respondent Union knew that it did not have a reasonable basis for filing its lawsuit. Quite the opposite, Respondent Union knew that it had granted Gilson an extension of time in which to comply with the contractual union-security provision, knew that it had not notified the Employer of this exten- sion, and knew that Gilson's claim that Ingles had grant- ed him an extension was true. In other words, Respon- dent Union knew that its lawsuit was without merit. These circumstances, when viewed in light of the inher- ently coercive nature of the lawsuit upon Gilson's and other employees' right to file charges with the Board and the punitive nature of the damages sought by Re- spondent Union,' 2 persuade me that the lawsuit had as 12 In the instant case, unlike Power Systems, Respondent Union does not seek only legal expenses, but rather appears to be seeking damages of at least S30,000, a sum of money far in excess of legal fees Respondent its purpose the unlawful objective of penalizing Gilson for filing a charge with the Board, thus depriving him of, and discouraging employees from seeking access to, the Board's processes. Accordingly, I find that Respondent Union violated Section 8(b)(l)(A) of the Act by filing a Complaint for Declaratory Relief in the Superior Court of Alameda County, California, which seeks damages from Gilson because Gilson filed an unfair labor practice charge with the Board against Respondent Union. II. THE REMEDY Having found that Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. As I have found that Respondent Union unlawfully caused the Employer to discharge David Gilson, I would normally recommend that Respondent Union be required to notify Gilson and the Employer that it no longer objects to Gilson's employment. However, it is settled that, "[w]here . . . prior to a Board finding that a union has violated Section 8(b)(2), the union voluntarily notifies both the employer and the employee that it has no objection to the reemployment of the employee, the Board has held that such notification constitutes compli- ance with the usual Section 8(b)(2) order and effectively terminates the union's backpay liability" 5 days after such notification. Westwood Plumbers, 131 NLRB 562, 562-563 (1961). Accord: H. C. Macaulay Foundry Com- pany, 223 NLRB 815, 818-819 (1976), enfd. 553 F.2d 1198 (9th Cir.). Here, counsel for Respondent Union stated on the record, at the close of the hearing in the presence of Gilson and representatives of the Employer, that Respondent Union "has absolutely no objections to the Employer reemploying Gilson at any time, and in fact so requests that he be reemployed as a sheet metal worker [Gilson's former position] or [in] any other job for which he is qualified." I am persuaded that this state- ment was sufficient to toll Respondent Union's backpay liability inasmuch as the law is settled that "a]n oral statement by a respondent union on the record at a Board proceeding that it does not object to a discrimina- tee's reemployment is an adequate substitute for a written notice if such statement is made in the presence of the employer and the alleged discriminatee." Plumbers & Pipe Fitters Local Union 214 (D. L. Bradley Plumbing & Heating Co.), 131 NLRB 942, 945 (1961). See also Local Union 595, International Association of Bridge, Structural and Ornamental Iron Workers, AFL (R. Clinton Construc- tion Company), 109 NLRB 73 (1954); Acme Mattress Company, Inc., 91 NLRB 1010, 1013-14 (1950). Under the circumstances, I find that Respondent Union's back- pay liability terminated July 31, 1979. Accordingly, I shall recommend that Respondent Union make David Gilson whole for any loss of wages and benefits suffered as a result of Respondent Union's discrimination by pay- Union did not present evidence to explain how Gilson's conduct dam- aged it so as to warrant damages in the sum of at least $30,000. 780 SHEET METAL WORKERS' UNION LOCAL 355 ment to him of a sum of money equal to that which he normally would have earned as wages from February 9 to July 31, 1979, less his net earnings during said period; such sums and interest thereon are to be computed in the manner prescribed in F. W Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977).'3 I reject Respondent Union's contention that its back- pay liability was tolled on February 12, 1979. I recognize that, on February 12, Ingles asked Production Manager Kelly if the Employer could reinstate Gilson, but there is no evidence that Respondent Union notified Gilson, prior to the hearing in this case, that it no longer object- ed to his employment by the Employer. It is settled that a respondent union is required to notify the employee as well as the employer that it no longer objects to the em- ployee's reemployment in order to toll its backpay liabil- ity when it has been the cause of discrimination against the employee. See Local 595. International Association of Bridge, Structural and Ornamental Iron Workers, AFL, 109 NLRB 73 (1954); International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, Local 182, Utica., New York and Vicinity, AFL (The Lane Construction Corporation), 111 NLRB 952, fn. 2 (1955); Westwood Plumbers, 131 NLRB 562 (1961); United Broth- erhood of Carpenters and Joiners of America. Local No. 1089, AFL-CIO (Emmett & F. Hargett d/b/a E. F Har- gett & Co.), 233 NLRB 275 (1977); Miscellaneous Drivers and Helpers Local 610, affiliated with International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America (Bianco Manufacturing Co., a Division of Falcon Products. Inc.), 236 NLRB 1048, fn. 1 (1978). 1 have found supra, that Ingles did not indicate to Gilson that Respondent Union no longer objected to his reem- ployment by the Employer. And, Respondent Union's Shop Steward Rhode's remark to Gilson that Ingles had asked Rhode whether the Employer would "put [Gilson] back," does not constitute a clear and unambiguous noti- fication to Gilson that Respondent Union had no objec- tion to his being employed by the Employer. Likewise, Corvello's statement to Gilson that Respondent Union would not object to Gilson's reemployment by the Em- ployer if the Employer had reemployed employee Guest does not constitute an unambiguous notification to Gilson that Respondent Union no longer objected to his being employed by the Employer. Moreover, later the same day Corvello informed Gilson that Respondent Union was still taking the position that Gilson's dues were not tendered to Respondent Union in a timely manner, and indicated to Gilson that the reason the Em- ployer was privileged to reinstate employee Guest was that Guest's dues, unlike Gilson's, were paid to Respon- dent Union in a timely manner. Under these circum- stances, even assuming that Ingles' and Rhode's state- ments to Gilson could have been construed by Gilson as indicating that Respondent Union no longer objected to his employment by the Employer, Corvello's subsequent statements were calculated to revoke the statements made by Ingles and Rhode and to lead Gilson to believe that Respondent Union still objected to his employment l' See, generally, I Plumhing & Heatuing Co, 138 NLRB 716 1962) by the Employer. It is for all of these reasons that I find that, until the hearing in this case, Respondent Union did not clearly and unequivocally indicate to Gilson that it no longer objected to his employment by the Employer. In order to dissipate the effect of Respondent Union's filing of the civil action against David Gilson, I shall fur- ther recommend that Respondent Union be ordered to cease and desist from prosecuting said civil action and to withdraw it. And, in order to restore Gilson to the posi- tion he would have been in absent Respondent Union's violation of Section 8(b)(l)(A) of the Act, I shall recom- mend that Respondent Union be ordered to make Gilson whole for all legal expenses he has incurred in defense of Respondent Union's civil action. 1 Upon the basis of the above findings of fact and the entire record in this case, I make the following: CONCLUSIONS OF LAw I. Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. 2. The Employer, Zinsco Electrical Products, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By causing the discharge of David Gilson, Respon- dent Union has engaged in unfair labor practices within the meaning of Section 8(b)(2) and (I)(A) of the Act. 4. By filing a Complaint for Declaratory Relief in the Superior Court of the County of Alameda, California, which seeks damages from David Gilson because he filed an unfair labor practice charge against Respondent Union with the Board, Respondent Union has engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER' 5 The Respondent, Sheet Metal Workers' Union Local 355, Sheet Metal Workers' International Association. AFL-CIO, Oakland, California, its officers, agents. and representatives, shall: 1. Cease and desist from: (a) Causing or attempting to cause Zinsco Electrical Products to discriminate against David Gilson or any other employee in violation of Section 8(a)(3) of the Act. (b) Prosecuting its Complaint for Declaratory Relief, styled as Sheet Metal Workerv Union Local 355 v. David Martin Gilson (File No. 521286-4, Superior Court of California, County of Alameda), which arose out of Gil- '' Poer Se'nI, Incl 234 NLRB 445 I Q7X) ' In the eea no xiCepionl are iled a1 , prisldled hb Se. I12 4r of, Ihe RJlles nd Regulati i lns of the Nalail Lahwir Rel;lollns BI ard, the ftiding,. Cn/iluti on, il l r lrilIClded t)rdr hlrein htll . a proilded ill Sec 10248 f tlhe Rules and Rcgullols. h' Ildoptel h Ihrc Board anirl hec mrne It, iinlligs cilnluws i,. anlll ()rir. and ll hl.ltlli lo tlhercli shall hb (leertel ki edl ftir all purpo,ie 781 DECISIONS OF NATIONAL LABOR RELATIONS BOARD son's filing of unfair labor practice charges with the Na- tional Labor Relations Board. (c) In any like or related manner restraining or coerc- ing employees of Zinsco Electrical Products in the exer- cise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment as authorized by Sec- tion 8(a)(3) of the Act. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act: (a) Make David Gilson whole for any loss of earnings he may have suffered by reason of the discrimination against him as set forth in the section of this Decision en- titled "The Remedy." (b) Withdraw its Complaint for Declaratory Relief, styled as Sheet Metal Workers Union Local 355 v. David Martin Gilson (File No. 521286-4, Superior Court of California, County of Alameda), which Respondent Union caused to be instituted against David Gilson, and reimburse David Gilson for all legal expenses he has in- curred in the defense thereof. (c) Post at its office and meeting halls copies of the at- tached notice marked "Appendix." 6 Copies of said '6 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by notice, on forms provided by the Regional Director for Region 20, after being duly signed by Respondent Union's representative, shall be posted by Respondent Union immediately upon receipt thereof, and be main- tained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent Union and its agents to insure that said notices are not altered, defaced, or covered by any other material. (d) Forward to the said Regional Director signed copies of said notice for posting by Zinsco Electrical Products, if it is willing, at its Sacramento, California, fa- cility for 60 consecutive days in places where notices to employees are customarily posted. (e) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps Respondent Union has taken to comply herewith. Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 782