Savin Business Machines Corp.

SAVIN BUSINESS MACHINES CORPORATION Savin Business Machines Corporation and Stuart Portner. Case 1-CA-14154 May 22, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On January 24, 1979, Administrative Law Judge Robert Cohn issued the attached Decision in this pro- ceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision and a motion to strike portions of Respon- dent's brief. Respondent thereafter file a reply to the General Counsel's motion.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. 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, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that the Respondent, Savin Business Machines Corporation, Brighton, Massachusetts, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Ad- ministrative Law Judge. I Respondent excepted to the Administrative Law Judge's refusal to re- open the record to admit evidence concerning the alleged implication of the discriminatee, Portner, in criminal misconduct at Respondent's premises on a date subsequent to the events at issue in this case. The General Counsel moved to strike references to this alleged misconduct from Respondent's brief. It is our opinion that the record as a whole supports the finding that Portner's discharge was discriminatorily motivated, and that evidence of events subsequent to this discharge would not affect this finding. However, evidence of Portner's alleged wrongdoing may have an effect on his right to reinstatement to his former job. We will leave that matter to be considered at the compliance stage of this proceeding. In light of this disposition, the Gen- eral Counsel's motion to strike is denied. 2 The Administrative Law Judge inadvertently failed to conform his notice with his recommended Order. We shall correct his notice accordingly. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to present evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act, as amended, and has ordered us to post this notice. We intend to abide by the following: The Act gives all employees these rights: To organize themselves To form, join, or help unions To bargain as a group through representa- tives they choose To act together for collective bargaining or other mutual aid or protection To refuse to do any or all of these things. All of our employees are free to remain, or refrain from becoming or remaining, members of a labor or- ganization. WE WILL NOT unlawfully discharge employees for lawfully engaging in union activities or pro- tected concerted activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the ex- ercise of their rights guaranteed by Section 7 of the Act. WE WILL offer Stuart Portner his former job or, if such job no longer exists, a substantially equivalent position, and will restore his seniority and other rights and privileges. WE WILL pay him any backpay he may have lost because we discharged him, with interest. SAVIN BUSINESS MACHINES CORPORATION DECISION STAIEMENI OF THE CASE ROBERT COHN, Administrative Law Judge: This case was heard at Boston, Massachusetts, on September 6. 7, 26, and 27, 1978, based upon a charge filed on February 21. 1978, and a complaint issued April 5, 1978. The sole issue to be resolved is whether Savin Business Machines Corporation (herein the Company or Respondent) violated Section 8(a)(3) and () of the National Labor Relations Act, as amended (herein the Act), by its discharge (on or about December 14, 1977) and subsequent refusal to reinstate the Charging Party to his former or substantially equivalent position of employment. At the close of the hearing, oral argument was made by counsel for the General Counsel. Post-hearing briefs had been received from both counsel for the General Counsel and counsel for Respondent, as well as a statement from the Charging Party, all of which had been duly considered. I Subsequent to the filing of briefs. counsel for General Counsel filed a motion to strike an alleged prejudicial statement in Respondent's brief which referred to a robber) at the premises of Respondent during the hiatus be- tween the hearing dates and the alleged implication of the Charging Party herein. On December 27. 1978. Respondent filed its motion to reopen the record. based upon such incident, in which it was stated: On or about October 27, 1978, information was obtained by Respon- dent that reflected the charging part) was either directly or indirectly (Continued) 242 NLRB No. 82 435 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in the case, including my observa- tion of the demeanor of the witnesses,' I make the follow- ing: FINDINGS OF FACT I. THE ALLEGED UNFAIR LABOR PRACTICES 3 A. The Facts As previously noted, the sole issue in this case is whether Stuart Portner, the Charging Party, was terminated by Re- spondent on or about December 14, 1977, because of his activities on behalf of the Union or for just cause. At its Brighton facility, Respondent has been engaged in the sale, leasing, and servicing of highly sophisticated busi- ness machines. Prior to his discharge, as aforesaid, the Charging Party had been employed by Respondent since 1969 in the service and maintenance of such machines. During this period of time he had advanced to a position of "FE-4"4 which is the next to the highest nonsupervisory rank in the service department. As an FE-4, he was ex- pected to service the machines of the customers assigned to him, assist in the training of other technicians, and repair machines that other technicians were not competent to re- pair. The bulk of such service and repair duties was carried on at the establishments of Respondent's customers. Ac- cordingly, it was incumbent for a field engineer to have his own means of transportation since the Company did not provide company cars.5 The record is abundantly clear that the Charging Party possessed and displayed a high degree of skill and compe- tency as far as his technical ability was concerned. This involved in the unlawful removal and possession of part of all of the material mentioned above. Since time is of the essence, affidavits of the facts of the robbery have not been attached but will be supplied if required. On January 9, 1979, counsel for the General Counsel filed his reply in opposition to Respondent's motion to reopen the record. On January II, 1979, Respondent filed its response to the General Counsel's opposition. The fact of the alleged robbery admittedly occurred after the alleged dis- crimination. Accordingly, it could have no direct bearing on that issue. Were the Charging Party shown to have been guilty of participation in the rob- bery, such would have a bearing on the issue of remedy (cf N.L.R.B. v. Big Three Welding Equipment Co., 359 F.2d 77 (5th Cir. 1966). However, there is a lack of supporting data in the record upon which to base such a finding. Therefore, the motion of Respondent to reopen the record is denied; the motion of the General Counsel to strike is granted. 'Cf. Bishop and Malro, Inc., d/b/a Walker's, 159 NLRB 1159, 1161 (1966). 3 There is no issue herein respecting thejurisdiction of the National Labor Relations Board over this Respondent nor of the status of the labor organi- zation involved. The complaint alleges sufficient facts respecting the inter- state operations of Respondent, which are admitted in Respondent's answer, upon which I may, and do hereby, find that Respondent is an employer engaged in commerce within the meaning of the Act. It is further alleged in the complaint and admitted in the answer of Re- spondent that International Brotherhood of Teamsters. Chauffeurs, Ware- housemen and Helpers of America (herein the Union) is a labor organization within the meaning of Sec. 2(5) of the Act. I so find. 'FE stands for field engineer. The record reflects that during the time in question Respondent reim- bursed the servicemen on the basis of 14 cents per mile traveled on company business. technical proficiency was recognized by both low level su- pervisors of the Company (as they testified at the hearing), as well as by high company officials. For example, as re- cently as September 13, 1977, the Charging Party received a commendation in the form of a letter and check from the president of Respondent for his suggestion which appar- ently was an improvement to one of the company's prod- ucts or procedures. However, the Company contends that the Charging Party had deficiencies as an employee which eventually overcame his proficiencies as a technician and led to his ultimate termination., During August 1977 the Charging Party became involved in an organizational campaign on behalf of the Union.' Portner testified that during this time he received some au- thorization cards from a representative of the Union and proceeded to distribute such cards to other Company tech- nicians during nonworking hours on the Company's park- ing lot and at a social affair which took place at his home. He testified that on one occasion, on or about August 17, while he was passing out union authorization cards in the parking lot before worktime, he observed Supervisor Pena, and that Pena approached him. Portner immediately put the cards away, and nothing was said between the two men at that time. However, at the close of work that evening, he had a conversation with Pena in the serviceroom of Re- spondent's facility. According to Portner's testimony, Pena advised that some of the other technicians were telling him (Pena) that Portner was "doing things" which were turning them against the Company, i.e., that Portner was "making trouble," and "leading a revolution." Portner denied that the reports were true, but Pena advised Portner that the latter would have to change his attitude or he might lose his job as an FE-4.4 In September Portner claimed that he was being harassed by the Company by, for example, being sent on "bogus calls," which are assignments to a field technician by the dispatcher where there is no complaint by the customer; therefore, the time of the field engineer is wasted and made to look nonproductive. Portner testified that the number of such calls increased markedly in September, and when he would question the dispatcher about it he was usually told that the call was placed in his box by Steve Pena. I These asserted deficiencies will be dealt with more fully, infra. 7There is nothing in the record to indicate that prior to such time the employees of Respondent at the Brighton facility were ever represented for purposes of collective bargaining by a labor organization. I The foregoing findings are based upon the testimony of Portner, which I credit over Pena's denial of ever having had such a conversation with Port- ner. In addition to demeanor considerations, I base the credibility resolution, in part, upon the transcription of a tape recording which Portner secretly made during his conversation with Pena, which was admitted into evidence over Respondent's objection. See, e.g., Fontaine Truck Equipment Company, 193 NLRB 190 (1971); cf. Carpenter Sprinkler Corporation, 238 NLRB 139 (1978). where the Board recently altered the rule with respect to collective- bargaining negotiations. Although Respondent contended that there was a possibility that the tape may have been altered, there was no evidence pre- sented of this. and I gave leave of Respondent during the hiatus in the proceeding to have its experts examine the tape for any such alleged alter- ation. Finally, when Pena was presented with the transcription of the tape and asked whether it was "accurate in any way," he responded: I can't really say honestly that it's it's accurate or inaccurate be- cause I don't really recall the conversation, number one. I'd say that it was possible. 436 SAVIN BUSINESS MACHINES CORPORATION Abel Mendes, a coworker of Portner at the Company, testified that in late August or early September Pena spoke to him and two other technicians (John Larner and Richard Dubois) late one afternoon at the plant. Pena, after wonder- ing rhetorically what Portner was trying to prove by start- ing a union, averred that "a union would not do anyone any good at Savin [because the employees] were getting benefits that they would normally get if they had a union."9 As previously noted, Portner was terminated on Decem- ber 14, 1977. On that day his car became disabled, and he contacted his supervisors that he would be unable to make his usual rounds. On that occasion Portner spoke with Pena at about 10 a.m. (Portner had placed the call to Laws, whom he considered his immediate supervisor, but Laws, who shared an office with Pena, was on another call and Pena spoke with Portner.) Both Pena and Laws testified that under the circumstances Portner was given the option to come to the Company's facility and work out of the of- fice, but that Portner claimed he was unable to even get transportation to the office.' 0 Pena testified that after 5 or 10 minutes of argument with Portner concerning the latter's inability to secure transportation and his inability to give Pena "any reasonable answer at all on when and if he could get any kind of transportation to do service calls," Pena told Portner "I think, Stuart, it is about time that Stu Port- ner and Savin Business Machines part company," and that Portner at that time said, "I agree."" On December 16 Portner came back to Respondent's of- fice for the purpose of having an exit interview with Super- visor Laws. There was no discussion of his discharge at that time. Apparently the exit interview consisted solely of Port- ner's responding to a list of prearranged questions which Laws asked him.2 9 Although Pena denied having a conversation with Mendes regarding Portner's union activities, I am inclined to credit Mendes, who impressed me as a candid and forthwright witness and who was testifying while still an employee of the Company, against Respondent's interests. (See e.g., Georgia Rug Mill, 131 NLRB 1304, 1305 at fn. 2 (1961); Asroasystems, Inc., 203 NLRB 49 (1973); Federal Envelope Conany, etc., 147 NLRB 1030, 1036 (1964)). Although both Dubois and Larner were unable to recall any such statement by Pena in the presence of Mendes, I am unable to believe that Medes fabricated the incident. Had he desired to fabricate based upon his friendship with Portner, as suggested by counsel for Respondent, it would seem unlikely that he would place two other technicians who were still em- ployed by Respondent at the site of the conversation. 10 It appears that it is the practice of the Company that when a field engineer's car breaks down, he is assigned to work with another engineer until his car is repaired. This would be particularly true with a field engineer of the experience of Portner, who had the responsibility, on occasion, of training younger and more inexperienced field engineers. " Portner's version of the conversation is at variance with the foregoing. He testified that Pena stated that Portner would be required to rent a car while his was in repair. and that Portner responded that he could not afford to rent a car; that Portner offered to take public transportation downtown and perform service calls on foot, or ride with another technician as he had done in the past. However, Pens rejected these offers and told Portner that he was discharged. I deem it unnecessary to resolve this particular credibility conflict since I would find in favor of the General Counsel on the ultimate issue of discrimi- nation even if Respondent's version of the telephone conversation is credited, as more fully set forth, infra 1 Testimony of Laws. B. Analysis and Concluding Findings As mentioned above, it is the position of the Company that Portner was terminated for "just cause"; that the inci- dent on December 14 constituted "insubordination" by Portner to Supervisor Pena, which was the culmination of many problems and frustrations which the Company had had with Portner over the years, and ultimately led to his discharge. Counsel for the General Counsel argues that Portner was clearly one of the best technicians in the Com- pany's employ; that whatever deficiencies he may have had in his personal deportment, the Company had either over- looked or suffered with over the years, and that it was only after Portner was found to have been a leader in a union organizational campaign-to which Respondent was unal- terably opposed-that these other deficiencies became so oppresive that they rose to the stature of grounds for dis- charge. For reasons hereinafter set forth, I agree with the General Counsel. The record evidence leaves no doubt that from almost the beginning of his employment with Respondent in 1969, Stuart Portner presented somewhat of a problem to the management of the Company. As previously mentioned, there can be no doubt that he possessed a very good techno- logical mind and exercised great skill as a technician. As a consequence, he rose rather rapidly in the ranks of the Company's field engineers, and toward the end of his em- ployment he was acknowledged to be one of the best techni- cians in the Company's Brighton facility. The Company had acknowledged his technical proficiency with one or more letters of commendation and reward. At the same time, however, Portner had personal deficiencies. The rec- ord is replete with testimony that he was, from the outset of his employment, a sloppy dresser and did not adhere to the Company's dress code. Laws testified that he considered Portner's dress to be inadequate from the first day of his employment, and that he spoke to him often about it. Port- ner's response would normally be that he (Portner) would try to do better, and the matter was left there. There is no evidence that any company supervisor ever warned Portner that unless he improved in his dress and adhered to the dress code his job was in jeopardy. There were other deficiencies Respondent raised at the hearing which, it claims, weighed heavily in the decision to terminate Portner. 3 Respondent argues that "customer complaints" were a factor in the decision to discharge Portner. However, prior to the discharge, the record does not reflect that Respon- dent viewed such complaints as sufficiently serious to con- stitute a threat to Portner's employment. There is no evi- dence in the record emanating from a customer that such customer ever demanded Portner's discharge. Indeed, the 3 It is noteworthy that none of the factors mentioned hereinafter were mentioned to Portner at the time of his discharge as a reason for his termina- tion, nor were records of warnings of such conduct placed in his personnel file at the time of such occurrences. See Air Products and Chemicals, Inc., 227 NLRB 1281 (1977), where the Administration Law Judge noted that at no time prior to the dismissal of the two alleged discriminatees did any supervi- sor ever caution or admonish them that their "attitude" mght lead to dis- rmssal. "Such action on the part of an employer is not natural," citing E. Anthony and Sons v. N..LR.B, 163 F.2d 22, 26-27 (D.C. Cir. 1947). cert. denied 332 U.S. 773. 437 DECISIONS OF NATIONAL LABOR RELATIONS BOARD seriousness or frequency of such alleged customer com- plaints is not clear in the record. The last such complaint, according to the testimony of Supervisor Laws, occurred in the spring or early summer of 1977 wherein a company called Diamond Union Stamp Works complained that Portner had "tried to jam a maintenance agreement down his throat." Here again, there is no evidence that Laws warned or threatened Portner at the time with loss of his job as a result of such complaint. Respondent contends that one of the reasons for Port- ner's discharge was because the latter stole some of the Company's products. Pena testified that on one occasion in September or October 1977 he caught Portner in the parts- room, which was a restricted area. When he asked Portner what he was doing there, the latter replied that he needed some switches to repair some equipment in the field." Pena reported the incident to Laws, but no disciplinary action ensued. Again, the record reflects that there was nothing in Portner's personnel file regarding that incident or any other incident of alleged stealing. Finally, Respondent contends that a reason for Portner's discharge was because he engaged in "moonlighting," i.e., working on company equipment at customer locations after normal working hours for personal gain. Although the Company claims that this practice was against company policy, Portner candidly testified that he was instructed to engage in such conduct from time to time (as were other service technicians), and that the last two occasions oc- curred in October 1977. Here again, there is no evidence of warning or threat of discipline for engaging in such conduct in Portner's personnel file, nor was any customer of Re- spondent called to testify that such practice was against company policy. In sum, all of the "reasons" proffered by Respondent as set forth above appear to be mere afterthoughts submitted by Respondent in an attempt to legitimize the termination. It is significant that such "reasons" were first announced at the hearing, and they were not cited by management to Portner either at the time of termination or at the exit inter- view.' Moreover, the incident of December 14 (even crediting Respondent's version) would not seem to constitute such serious "insubordination" as to warrant the extreme pen- alty of discharge were not another factor involved.'6 Even according to Pena's version of the conversation, Portner did not contest Pena's authority, nor was he otherwise abusive of Pena." Rather, he simply contended that he had no way 14 Field engineers customarily carry spare parts in their vehicles for the purpose of repairing machinery at customer locations. 15 See, e.g., Bendix-Westinghouse Automotive Air Brake Co., 161 NLRB 789, 796 (1966), and cases cited. 16 As the United States Court of Appeals for the Ninth Circuit stated the principle in Shattuck Denn Mining Corporation (Iron King Branch) v. N.LR.B., 362 F.2d 466, 470 (1966): If he Ithe trier of the factl finds that the stated motive for a discharge is false, he certainly can infer that there is another motive. More than that, he can infer that the motive is one that the employer desires to con- ceal-an unlawful motive-at least where, as in this case, the surround- ing facts tend to reinforce that inference. i7 Webster's New Collegiate Dictionary defines "insubordinate" as "un- willing to submit to authority." to get transportation to the office until his car was repaired. Certainly this would not, under ordinary circumstances, ap- pear to be "just cause" for discharge unless some other fac- tor was involved. Furthermore, I note that in discharging Portner without previous discussion of the reasons, the su- pervisors involved failed to adhere to personnel policy re- specting the discharge of employees. The policy is set forth in the office procedure manual as follows:" It is the intent of the Company to fairly consider all facts before releasing any employee. Whenever unsat- isfactory performance or behavior occurs, the supervi- sor or manager should deal with the situation promptly, constructively and in a tactful manner in order to: a. Reduce the number of involuntary terminations. b. Avoid misunderstandings between superior and subordinate. c. Ensure that personnel are provided with notice of unacceptable performance in sufficient time to permit self correction and improvement. d. Assure that documentation is available to sup- port management's position in the event of discrimina- tion or labor claim charges. It would seem that had not Respondent desired to utilize the December 14 incident as a pretext to camouflage its real reason for terminating Portner, Pena would have simply instructed Portner to come to the office by taxicab and would have warned him that if he did not comport to com- pany policy and work according to management's instruc- tions he would be discharged. In view of the foregoing, I am convinced, and I therefore find, that "but for" Portner's union activities, which Re- spondent opposed, Portner would not have been terminated because of the incident on December 14. Accordingly, I conclude and find that the termination was in order to dis- courage membership in a labor organization, in violation of Section 8(a)(3) and (1) of the Act. 11. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section 1, above, occurring in connection with its interstate operations, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. Upon the basis of the foregoing findings of fact, and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of the Act. 2. The Union is a labor organization within the meaning of the Act. 3. By discharging its employee, Stuart Portner, in order to discourage membership in the Union, Respondent has "s See G.C. Exh. 4. 438 SAVIN BUSINESS MACHINES CORPORATION engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in unfair la- bor practices violative of Section 8(a)(1) and (3) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It having been found that Respondent unlawfully dis- charged its employee, Stuart Portner, it is recommended that Respondent offer said employee immediate and full reinstatement to his former position or, if such position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suf- fered as a result of the discrimination against him.' Any backpay and interest thereon is to be computed in the man- ner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977). 20 As the unfair labor practices committed by Respondent strike at the very heart of employee rights safeguarded by the Act, I shall recommend that Respondent be place under a broad order to cease and desist from in any manner in- fringing on the rights of employees guaranteed in Section 7 of the Act.2 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: ORDER2 The Respondent, Savin Business Machines Corporation, Brighton, Massachusetts, its officers, agents, successors, and assigns, shall: 1Nothing contained in Respondent's post-hearing motion to open the record convinces me that the usual remedy for a Sec. 8(a)(3) violation should be altered in this case. OSee. generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 21 N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (4th Cir. 1941). 22 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. 1. Cease and desist from: (a) Discouraging membership in the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, by discharging or otherwise discriminating against employees because of their union membership or activities. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization, to form, join, or assist the above-named labor organization, or any other labor organization, to bargain collectively through representatives of their own choosing, 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. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer Stuart Portner immediate and full reinstate- ment to his former job or, if such job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him, in the manner set forth in the section of this decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all records necessary and relevant to analyze and compute the amount of back- pay due under the terms of this recommended Order. (c) Post at its Brighton, Massachusetts, facility copies of the attached notice marked "Appendix." Copies of said notice, on forms provided by the Regional Director for Re- gion 1, after being duly signed by the Company's autho- rized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by the Company to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 1, in writ- ing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 23 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 Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" 439