Daniel'S Pallet Service

34 DECISIONS OF THE NATIONAL-LABOR RELATIONS BOARD Daniel Gerhardi d/b/a Daniel's Pallet Service and Kenneth Early and- David Crist. Cases 7-CA- 24270(1) and 7-CA-24270(2)- 26 February 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 12 August 1986 Administrative Law Judge Irwin H. Socoloff issued the attached decision. The Respondent filed exceptions, a supporting brief, and a brief opposing the General Counsel's cross- exception. The General Counsel filed a cross-ex- ception and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order as modified.2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Daniel Gerhardi d/b/a Daniel's Pallet Service, Flat Rock, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. ' We note that, in addition to the incidents mentioned by the judge, several other incidents occurred in which the Respondent harassed em- ployee Earley On 2 February 1985, immediately after cursing Earley for having signed an authorization card, the Respondent ordered him, for the first time, to have his blood tested for intoxicants On the same day, the Respondent's owner, again for the first time, visited Earley's house at 11:30 p.m and ordered him to report to work on Saturday morning. On 4 February, during a mandatory employee meeting, a supervisor passed out written reprimands to Earley and employee Crist, cursed them, and remarked, "You guys want a union that bad, take these." During the same meeting, Earley complained about having been previously cursed by the Respondent for having signed an authorization card. The owner's wife, a supervisor, replied, "You are low lives, fucker You no-good son- of-a-bitch." On 5 February, as Earley was punching out, the same super- visor yelled, "Have a good day, you motherfucker " Two days later, the Respondent's owner, complaining about a low payroll, approached Crist and asked him to inspect the books because Crist "knew all the answers." The Respondent then approached Earley, who was working nearby, took Earley's hammer, shouted, "I want rock and roll," and smashed an adja- cent stereo to pieces Earley testified that he was frightened by this inci- dent and that he quit the next day because, with Crist having quit, he thought that the Respondent' s harassment would be directed solely at him z It appears from the record that the Respondent may have denied Crist and Earley employment-related benefits, as well as wages, because of their union activities To require the Respondent to compensate the discnmmatees for such losses of benefits, if any, we have modified the judge's recommended Order accordingly. Member Johansen also notes that the Respondent's removal of Crest's firewood, not found to be a sep- arate unfair labor practice by the judge, was mentioned in the charge and litigated at the hearing, but was not specifically alleged in the complaint. 1. Substitute the following for paragraph 2(a). "(a) Offer to Kenneth Earley and David Crist immediate and full reinstatement to- their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their `seniority' or any other rights and privileges previously enjoyed, and make them whole for any loss of earnings and other benefits, suffered--as a result of the discrimination against them by pay- ment to each of them a- sum of money equal to that which each normally would have earned as wages or received as benefits, from, the. date of the dis- crimination to the date, of the Respondent's offer of reinstatement, less net earnings during such period, with backpay to be computed in the manner pre- scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as set forth in Florida Steel Corp., 231 NLRB 651 (1977)." 2. Substitute the attached notice for that of the administrative law judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT interrogate you about your union activities and sympathies, or threaten you with more onerous working conditions because you sup- port the Union. WE WILL NOT harass, change the working condi- tions of, or constructively discharge you because of your activities on behalf of the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer to Kenneth Earley and David Crist immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights and privileges previously enjoyed. WE WILL make them whole for any loss of earn- ings and other benefits they may have suffered be- cause of the discrimination against them, plus inter- est. WE WILL notify each of them that we have re- moved from our files any reference to his dis- charge and that the discharge will not be used against him in any way. 283 NLRB No. 6 DANIEL'S PALLET SERVICE 35 All our employees are free to join and support Cylinder Gas, Chemical, Petroleum, Distillery, Auto Service and Accessory Drivers Local Union No. 283, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, or any other labor organization of their choos- ing. DANIEL GERHARDI D/B/A DANIEL'S PALLET SERVICE Richard Connolly, Esq., for the General Counsel. Paul Richards, Esq. and Craig W. Lange, Esq., of Troy, Michigan, for the Respondent. DECISION STATEMENT OF THE CASE IRWIN H. SOCOLOFF, Administrative Law Judge. On charges filed on 8 February and 25 March 1985, by Ken- neth Earley and David Crist , against Daniel Gerhardi d/b/a Daniels Pallet Service (the Respondent), the Gen- eral Counsel of the National Labor Relations Board, by the Regional Director for Region 7, issued a consolidat- ed complaint 27 March 1985, alleging violations by Re- spondent of Section 8(a)(3) and (1) and Section 2(6) and (7) of the National Labor Relations Act. Respondent,' by its answer, denied 'the commission of any unfair labor practices. Pursuant to notice, trial was held before me in Detroit, Michigan, on 10 and 11 July, 1985, at which the General Counsel and the Respondent were represented by coun- sel and were afforded full opportunity to be heard, to ex- amine and cross-examine witnesses, and to introduce evi- dence. Thereafter, the parties filed briefs which have been duly considered. On the entire record in this case, and from my obser- vations of the witnesses, I make the following FINDINGS OF FACT labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background Daniel's Pallet Service is a small family owned and op- erated wood pallet repair and wholesale distribution busi- ness employing some '10 or fewer laborers. The business was founded by Daniel Gerhardi and is run by Gerhardi, with the assistance of his wife, Shirley, and his sister, Cheryl Ouellette. I On 31 January 1985 employee David Crist asked his fellow laborers to visit his home at the conclusion of the workday. At that time, Crist distributed cards designat- ing the Union as the employees' collective-bargaining representative and the authorization cards were signed by Crist, Kenneth Earley, and others. On 1 February 1985 Respondent received a telegram , sent by the Union, demanding recognition. Crist and Early terminated their employment 8 February. In the instant case, the General Counsel contends that Crist and Earley were constructively discharged because of their union activities and that, during the week pre- ceding the constructive discharges , Respondent harassed those employees and changed their working conditions, for the same unlawful reasons . Respondent denies that it so acted in violation of Section 8(a)(3) of the Act and further contends that, in any event, and at all material times, Crist was a statutory supervisor . Also at issue is whether Respondent, during the 1 through 8 February period, violated Section 8(a)(1) of the Act by interrogat- ing employees about their union activities and sympa- thies; threatening employees with more onerous working conditions because of their ' support of the Union; threat- ening employees with plant closure it they selected the Union to represent them; informing employees that it would be futile for them to designate the Union as their representative. 1. JURISDICTION Respondent, a sole proprietorship, is engaged, at its Flat Rock, Michigan place of business, in the repair, non- retail sale, and distribution of wood pallets and related products. During the year ending 31 December 1984, a representative period, Respondent, in the course and conduct of its business operations, repaired, sold, and dis- tributed products valued in excess of $50 ,000 to Bor- man's, Inc., d/b/a Farmer Jack's, a Detroit, Michigan business, engaged in commerce within the meaning of the Act. I find that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION Cylinder Gas, Chemical , Petroleum, Distillery, Auto Service and Accessory Drivers Local Union No. - 283, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America (the Union) is a B. Facts2 During 1984, Respondent tolerated an undisciplined workplace environment and its work rules were not en- forced. Beginning in January 1985, it sought to change that situation and it reposted its work rules and instituted a progressive disciplinary system to deal with tardiness and absenteeism. Pursuant thereto, Respondent, in Janu- ary, sent written disciplinary notices to employee Tom Powell. Late in the month, Daniel Gerhardi met with the unit employees to express his concern about employ- ee tardiness and unexcused absences . In this time period, i Daniel Gerhardi and Shirley Gerhardi are, concededly, statutory su- pervisors In light of the uncontradicted record evidence concerning Ouellette's authority to hire, assign work, and responsibly direct employ- ees in their work, I find that Ouellette, too , is a supervisor within the meaning of the Act. 2 The factfindings contained herein are based on a composite of the documentary and testimonial evidence introduced at trial Where ' neces- sary to do so in order to resolve significant testimonial conflict, credibil- ity resolutions have been set forth, infra 36 DECISIONS OF THE' NATIONAL LABOR RELATIONS BOARD Respondent also acted to shorten the duration of the em- ployees' breaks and lunch periods. Near the end of January 1985, David Crist expressed to his fellow employees Crist's dissatisfaction with the new rules. Crist was Respondent's most senior employee, having worked for it "off and on" for a period of 7 years. In the course of his last period of employment, be- ginning July 1984,,Crist spent part of his worktime doing the basic unit work, repair and construction of pallets, and the remainder of the time driving a hi-lo by oper- ation of which pallets were moved to and from the work area. At those times when Daniel Gerhardi was present at the worksite, he generally drove the hi-lo himself and Crist worked on pallets. On 29 January 1985 Crist contacted the Union and dis- cussed organization. In the next few days, he ' talked about that possibility to the unit employees. Crist ob- tained union authorization cards on the morning of 31 January and, that day, asked the employees to come to his house, after work, for the purpose of signing the cards. Crist lived in a house adjacent to the workplace which he rented from Gerhardi. Before the end of the workday, on 31-January, Daniel Gerhardi gave Crist a written reprimand for leaving work early on 18 January, failing to report for work at all_ on 21 January, and arriving late for work on 22, 28, 29, and 30 January. Crist did not protest that matter. After work, he held the employee meeting as scheduled and obtained signed authorization cards which he deliv- ered to the Union. At 1:47 p.m. on 1 February, Shirley Gerhardi received a telephonic mail-a-gram from the Union, advising that a majority of the unit employees had designated the Union as their collective-bargaining representative and demand- ing recognition. It is undisputed that Shirley Gerhardi then went to the work area and asked Crist if he knew anything about the Union. Crist said that he had done it on his own time. Shirley Gerhardi then began to curse at Crist, in the presence of the other employees. When Daniel Gerhardi arrived, Shirley told him that - "this asshole is trying to get a union in." She turned to the working employees and asked, "[H]ow many other fuck- ing assholes are involved in the Union?" The Gerhardis took Crist out of , the hi-lo and told him to work at "prepping," that is, construction and repair of pallets. Shirley Gerhardi stated that it was lucky that she did not have a gun and she told Crist to "prep his fucking ass off." Daniel Gerhardi said that he wanted Crist out of the house that he, Crist, was renting-from Gerhardi and asked Crist who, beside himself and employee Earley, was involved in the Union. Later that day, Gerhardi served Crist with a notice of termination of tenancy and retrieved firewood he had earlier given to Crist for use in heating the house. That night, Gerhardi placed a tele- phone call to Crist at 2:45 a.m. and told him to report for' work on the next day, Saturday, 2 February. Employee Kenneth Earley signed an authorization card on 31 January, but was not present for the events of the afternoon of Friday, 1 February. Earley, who had worked for Respondent "off and on" for a period of 2 years and, continuously, since 22 August 1984, generally divided his time between working on pallets and loading and unloading some onto and off of a trailer. During the morining of 1 February, Early asked Daniel Gerhardi for permission to take part or all of the afternoon off so that he could make payment on his gas bill and prevent a shut off. The request was granted. Earley later told Ger- hardi that, after paying the bill, he spent the rest of the afternoon at the bar. At 11:30 that night, `Gerhardi went to Earley's house and told him to report for work on the next day, Saturday, 2 February. Earley arrived at work, on 2 February, as instructed, but told Gerhardi that he again needed time off to make payment on a utility bill, this time to prevent a shut off of electricity. Before Earley left, Gerhardi approached him and, according to Earley's uncontradicted testimony, asked if he, Early, had signed one of the union cards. Early said, "yes." Gerhardi stated that "there will be no fucking union here." When Earley asked, "[W]ell, what are you going to do, close down the doors," Gerhardi called Earley a "low'life son of a bitch" and said, again, that there would not be a union. The uncontradicted, testimony of Crist and Early re- veals that, on Monday, 4 February, employee Tim Lizy- ness delivered instructions from Gerhardi that Crist and Earley were to do pallet work only, and were not to drive the hi-lo or load or unload the trailer. Thereafter, Crist and Earley did, pallet work almost exclusively which, the record evidence suggests, was more arduous and less desirable work. At the end of the -workday on 4 February, Daniel and Shirley Gerhardi gathered the em- ployees together and handed written reprimands to Crist and Earley for lateness and absence during the month of January. According to the corroborated testimony of Crist and Earley, Shirley Gerhardi, at this meeting, cursed at the two employees, called them backstabbers, and asked why they wanted a union.3 , It is undisputed that Daniel Gerhardi stated to the employees that, a union would not do them any good. Gerhardi said that, on one occasion, he, Gerhardi, had been fired from a job and had sought, but did not receive, aid from a union. The essentially uncontradicted testimony of Crist and Earley reveals that, in addition to the change of duties which they suffered beginning on 4 February, the two employees and, particularly, Crist, became the objects of a campaign of ridicule and harassment conducted by the Gerhardis and Ouellette during the week of 4 to'8 Feb- ruary. In particular, Shirley Gerhardi, in the presence of the other employees, continually cursed at Crist and called him 'a "backstabber" as Crist performed his as- signed pallet work duties. Crist and Earley, -who had not received previous criticism concerning the speed at which they' worked, were constantly told they were "dogging" it and that they were to pick up the pace of their work, On 7 February, Daniel' Gerhardi, a very physically imposing man, approached the work area. Gerhardi went to a stereo set located in the workplace and, in the presence of the employees, picked it up, threw it to the ground, and repeatedly struck it with a hammer until it was destroyed. Later that day, Ouellette 3' The Gerhardis in their testimony, denied that these comments were made at the 4 February meeting As their testimony was neither corrobo- rated nor convincing on this point, it is not credited DANIEL'S PALLET SERVICE cursed at Crist and demanded to know why she'had not been told about the Union. Ouellette told Crist that he "would get his" and that she would ride him and make him "work his ass off." Later that day, Daniel Gerhardi gave Crist a written reprimand for returning 4 minutes late from a break on 5 February, and for disturbing other employees. About 1:30 p.m. on Friday, 8 February, Crist told Shirley Gerhardi that he was quitting as he "just couldn't handle it anymore." Shortly thereafter, Earley informed the Gerhardis that he, too, was quitting. Shir- ley Gerhardi started clapping her hands and said: "Yeay, we got rid of both of them fuckers now." Gerhardi testified that his action of 4 February, re- moving Crist and Earley from their hi-lo and trailer duties, was taken for safety reasons. Thus, Gerhardi claimed that he believed that Crist and Earley were under the influence of illegal drugs and he did not want them to handle power equipment. However, Gerhardi further testified that he believed that the two employees worked, while under the influence, during the month of January 1985, yet, Gerhardi made no change in their as- signed duties until 4 February, immediately after the advent of the Union. Respondent offered no evidence in support of Gerhardi's claimed belief that Crist and Earley worked while under the influence of drugs. Gerhardi also testified that, at the end of October 1984, he conducted a meeting of the employees, at which time he told them that Crist was being "placed on super- vision." According to Gerhardi, the employees were fur- ther advised that, while Crist would not have authority to hire, fire, or discipline employees, he could bring mat- ters pertaining to discipline to Gerhardi's attention. Crist was also empowered to deal with emergency situations. Crist, in his testimony, denied that he was ever given the authority to hire, fire, grant pay increases, grant time off, discipline employees, or direct them it their work. He testified that, in the absence of the Gerhardis, the day-shift workers functioned under the supervision of Ouellette. In light of Crist's credible testimony in this regard, and in the absence of corroboration of Gerhardi's testimony concerning the October 1984 employee meet- ing, I find that the claimed delegation of supervisory au- thority, in October 1984, did not, in fact, take place. This conclusion is further buttressed by the confused and self- contradictory state of Gerhardi's testimony concerning the weight he accorded to ' Crist's views, in late January and early February 1985, about certain disciplinary mat- ters. Although there is record evidence that Crist, in the fall of 1984 to the winter of 1985 period, as Respondent's most senior employee, gave occasional and incidental in- struction and direction to fellow workers, and particular- ly new workers, and answered' their questions based on his experience, there is an entire absence of evidence that he, at any time, exercised independent judgment in that regard. Rather, there is substantial evidence that the jobs of the laborers were routine in nature;' that "everybody pretty much knew their own job," and that the employ- ees frequently instructed and directed each other. At times, Respondent's supervisory officials did choose to transmit their instructions through Crist. 37 C. Conclusions As shown in the statement of facts, Respondent, through the Gerhardis and Ouellette, during the 1 through 8 February period, engaged in repeated interro- gations of its employees concerning their union activities and sympathies. On 1 February Shirley Gerhardi asked Crist if he knew anything about a union . She then turned to the other employees and asked who ellse was involved in the Union. On 2 February Daniel Gerhardi asked Early if he had signed a union card. At the 4 February employee meeting, Shirley Gerhardi demanded to know why the employees wanted a union . On 7 ]February Ouellette questioned Crist concerning why he had not told her about the Union. I find and conclude, as alleged in the complaint, that Respondent, by its interrogations of employees concerning their union activities and sym- pathies, violated Section 8(a)(1) of the Act. I further con- clude, as alleged, in the complaint, that on 7 February Respondent threatened employees with more onerous working conditions because of their support. of the Union, in violation of Section 8(a)(1). On that date, Ouel- lette, after interrogating Crist about the Union, told him that he "would get his" and that she, Ouellette, would ride him and make him "work his ass of" The complaint further alleges that Respondent, through Daniel Gerhardi, threatened employees with plant closure if they selected the Union to represent them. This allegation, apparently, is based on Gerhardi's conversation with Earley on 2 February. However, the record evidence reveals that, during that conversation, it was Earley, not Gerhardi, who introduced the subject of "closing down the doors" and that Gerhardi did not comment on that suggestion. Accordingly, this allegation must be dismissed. I likewise find no record evidence to support the complaint allegation that, on 4 February, Re- spondent informed its employees that it would be futile for them to select the Union as their bargaining agent. At the employee meeting on that date, Daniel Gerhardi opined that a union would not do the employees any good. Gerhardi made this statement while relating to the employees the facts surrounding an incident in which Gerhardi, as an employee, had sought, but did not re- ceive, aid from a union. The totality of his remarks were not coercive. As detailed in the statement of facts, the record evi- dence fully supports the complaint allegations that Crist and Earley were constructively discharged, in violation of Section 8(a)(3) of the Act, on 8 February 1985, 1 week after Respondent received the Union's demand for recognition. Through its unlawful interrogations of 1 and 2 February, Respondent learned that Crist had launched the union movement and that Earley was a union sup- porter. Respondent reacted quickly, removing those em- ployees from their duties and assigning them to less de- sirable work. During the week of 4 through 8 February, Respondent, through the Gerhardis and Ouellette, re- peatedly cursed at them and called them "backstabbers" in the presence of the other employees. Amidst an an- tiunion diatribe, Respondent continually warned Crist and Earley to pick up their work pace and accused them of "dogging" it. Crist was told that he "would get his" 38 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and that he would be made to "work his ass off." Re- spondent made clear to the employees that the change in work assignments and the campaign of harassment were in retaliation for their union activities and I find and con- clude that, by those actions, Respondent further violated Section 8(a)(3) of the Act. The new working conditions imposed on Crist and Earley, because of their union ac- tivities, were highly oppressive and were designed to cause, and did cause, their resignations. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations de- scribed 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 dis- putes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practice conduct in violation of Section 8(a)(3) and (1) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. Respondent Daniel Gerhardi d/b/a Daniel's Pallet Service is an employer engaged in commerce and in op- erations affecting commerce, within the meaning of Sec- tion 2(2), (6), and (7) of the Act. 2. Cylinder Gas, Chemical, Petroleum, Distillery, Auto Service and Accessory Drivers Local Union No: 283, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is a labor orga- nization within the meaning of Section 2(5) of the Act. 3. By interrogating employees about their union activi- ties and sympathies and threatening employees with more onerous working conditions because of their sup- port of the Union, Respondent has engaged in unfair labor practice conduct within the meaning of Section 8(a)(1) of the Act. 4. By harassing, changing the working conditions, and constructively discharging employees Kenneth Earley and David Crist because of their union activities, Re- spondent has engaged in unfair labor practice conduct within the meaning of Section 8(a)(3) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed4 4 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be, deemed waived for all pur- poses. ORDER The Respondent, Daniel Gerhardi d/b/a Daniel's Pallet Service, Flat Rock, Michigan, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Interrogating employees about their union activities and sympathies and threatening employees with more onerous working conditions because of their support of the Union. (b) Harassing, changing the working conditions, and constructively discharging employees because of their activities on behalf of the Union. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them in Section 7 _of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer to Kenneth Earley and David Crist immedi- ate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges. Make them whole for any loss of pay they may have suffered by reason of the discrimina- tion against them by payment to each of them of a sum of money equal to that which each normally would have earned as wages, from the date of the discrimination to the date of Respondent's offer of reinstatement, less net earnings during such period, with backpay to be comput- ed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as set forth in Florida Steel Corp., 231 NLRB 651 (1977); (see generally Isis Plumbing Co., 138 NLRB 716 (1962)). (b) Remove from its files any reference to the con- structive discharges and notify the employees that this has been done and that the discharges will not be used against them in any way. (c) Preserve and, on request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amounts of backpay due under the terms of this Order. (d) Post at its Flat Rock, Michigan locale, copies of the attached notice marked "Appendix."5 Copies of the notice, on forms provided by the Regional Director for Region 7, after being signed by the Respondent's author- ized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent has taken to comply. 5 If 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 Nation- al 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 "