Lee's Industries, Inc. Lee's Home Health Services, Inc. and Lee's Companies, Inc. (Single Employer)

National Labor Relations Board - Board Decisions

Sep 30, 2010

355 N.L.R.B. 1267 (N.L.R.B. 2010)

LEE’S INDUSTRIES
355 NLRB No. 206
1267
Lee’s Industries, Inc. and Lee’s Home Health Ser-
vices, Inc. and Lee’s Companies, Inc. (single
employer) and Bernice Brown. Case 4–CA–
36904
September 30, 2010
DECISION AND ORDER
BY MEMBERS BECKER, PEARCE, AND HAYES
On February 25, 2010, Administrative Law Judge
Robert A. Giannasi issued the attached decision. The
Respondent filed exceptions with supporting argument,
and the General Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions1 and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions and
to adopt his recommended Order as modified.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge, as
modified below, and orders that the Respondent, Lee’s
Industries; Lee Home Health Services, Inc.; and Lee’s
Companies, Inc., a single employer, Philadelphia, Penn-
sylvania, its officers, agents, successors, and assigns,
shall take the actions set forth in the Order as modified.
1. Substitute the following as paragraph 1(a).
“(a) Discharging or otherwise discriminating against
any employee for engaging in protected concerted activi-
ties.”
2. Insert the following as paragraph 1(b) and reletter
the subsequent paragraph accordingly.
“(b) Discharging or otherwise discriminating against
any employee for supporting the SEIU or any other un-
ion.”
3. Substitute the attached notice for that of the admin-
istrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE

1 The General Counsel moves to strike the Respondent’s exceptions
with supporting argument on the ground that they do not satisfy Sec.
102.46 of the Board’s Rules and Regulations. We find that the Respon-
dent’s exceptions with supporting argument are sufficient to satisfy the
“substantial compliance” standard, and thus we have considered them.
See, e.g., Consolidated Bus Transit, 350 NLRB 1064 fn. 2 (2007), enfd.
577 F.3d 467 (2d Cir. 2009).
2 We note that the judge inadvertently failed to find that employee
Bernice Brown’s discharge independently violated Sec. 8(a)(1), as well
as Sec. 8(a)(3) of the Act. We have modified the judge’s recommended
Order to reflect the independent 8(a)(1) violation and we have substi-
tuted a new notice to comport with this modification.
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT discharge or otherwise discriminate
against any of you for engaging in protected concerted
activities.
WE WILL NOT discharge or otherwise discriminate
against any of you for supporting the SEIU, or any other
union.
WE WILL NOT, in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of this order,
offer Bernice Brown full reinstatement to her former job
or, if that job no longer exists, to a substantially equiva-
lent position, without prejudice to her seniority or any
other rights or privileges previously enjoyed.
WE WILL make Bernice Brown whole for any loss of
earnings and other benefits resulting from her discharge,
less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of this order,
remove from our files any reference to the unlawful dis-
charge of Bernice Brown, and WE WILL, within 3 days
thereafter, notify her in writing that this has been done
and that the discharge will not be used against her in any
way.

LEE’S INDUSTRIES; LEE’S HOME HEALTH
SERVICES, INC.; LEE’S COMPANIES, INC.

Barbara C. Joseph, Esq., for the General Counsel.
Debra D. Rainey, Esq., of Philadelphia, Pennsylvania, for the
Respondent.
Joshua P. Rubinsky, Esq. and Amy Geller, Esq., of Philadel-
phia, Pennsylvania, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ROBERT A. GIANNASI, Administrative Law Judge. This case
was tried in Philadelphia, Pennsylvania, on January 5, 2010. At
the hearing, the parties stipulated that the three respondent cor-
porations (the Respondent) constitute a single employer under
the Act. The amended complaint alleges that Respondent vio-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1268
lated Section 8(a)(3) and (1) of the Act by discharging em-
ployee Bernice Brown for engaging in union and other pro-
tected concerted activities. The Respondent filed an answer
denying the essential allegations in the complaint. The General
Counsel and the Respondent filed posttrial briefs, which I have
read and considered. Based on the entire record in this case,
including the testimony of the witnesses and my observation of
their demeanor, I make the following1
FINDINGS OF FACT
I. JURISDICTION
It is stipulated that Respondent is engaged in providing home
health care, janitorial and pest control services, and is head-
quartered at 3858 Pulaski Avenue, Philadelphia, Pennsylvania.
It is also stipulated that Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act. In addition, Respondent admits that the Service Em-
ployees International Union (SEIU) is a labor organization
within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Pursuant to a contract with Pennsylvania Corporation for
Aging (PCA), Respondent employs an unspecified number of
home health aides, who work primarily at and out of the resi-
dences of its clients. President Nina Kinard and Coordinator
and Supervisor Gwendolyn Brown work out of Respondent’s
headquarters. Bernice Brown (the Charging Party), was one of
Respondent’s most senior home health aides. She was em-
ployed for about 8 years before her termination in February of
2009. Her immediate supervisor, Gwendolyn Brown, joined
Respondent 2 years after Bernice Brown began her tenure with
Respondent. According to Supervisor Brown, Bernice Brown
was one of Respondent’s “better, dependable employees,” who
was often asked to fill in for other employees. Tr. 133.
On December 17, 2008, Respondent held one of its periodic
“in service” meetings with all its home health care aides. On
that date, Respondent met, at a location away from its head-
quarters, with home health care aides in four separate groups, to
announce that it intended to convert their job status from em-
ployees to independent contractors, as of January 1, 2009. The
change would mean that the employees would receive an Inter-
nal Revenue Service (IRS) Form 1099, instead of a Form W-2
for their pay, they would have to keep records of their deducti-
ble expenses, and the Respondent would no longer withhold
income taxes or pay social security and other employment taxes
on their behalf. At the December 17 meetings, Respondent
distributed forms to the employees. Those forms confirmed
that the signer agreed to become “self-employed,” or a “statu-
tory employee,” essentially an independent contractor. The

1 After the hearing was closed, the parties submitted an additional
exhibit that was inadvertently omitted from the formal papers. In ac-
cordance with the stipulation of the parties, GC Exh.1(b)(1), a copy of
the amended charge, is admitted in evidence. The General Counsel
also filed an unopposed motion to correct transcript, which I hereby
grant.
form also states that the signer is a “statutory employee, as per
IRS definition and guidelines, of Lee’s Industries, Inc.” GC
Exh. 6.
During the meeting she attended, Bernice Brown expressed
repeated objections to the conversion. At the end of the meet-
ing, she nevertheless signed the conversion form, as did all but
four of the home health care aides.
Sometime after the meeting described above, Respondent’s
president, Nina Kinard, decided to talk to the employees who
had expressed concerns over the conversion and not signed the
conversion form. On December 29, 2008, she met with those
employees at Respondent’s headquarters so that she could ad-
dress their concerns and get them to sign the forms. Bernice
Brown was one of five employees directed to meet with Kinard.
Although Kinard had attended most of the employee meetings
on December 17, she was absent from the group meeting Ber-
nice Brown had attended that day and had no first hand knowl-
edge of the objections Bernice Brown had voiced at the meet-
ing. Nor did Kinard know that Bernice Brown had already
signed a conversion form at the end of the meeting, despite her
stated objections. Kinard learned of Bernice Brown’s objec-
tions to the conversion from Human Resources Manager Bar-
bara Wright, who did attend the group meeting that Bernice
Brown attended. Kinard testified that Wright took a list of
“anyone who was confused” and that is how she obtained Ber-
nice Brown’s name. (Tr. 136.)
All five employees who attended the December 29 meeting
with Kinard signed the conversion form, including Bernice
Brown, who signed a second form, since she had already signed
a conversion form at the end of the December 17 meeting.
Bernice Brown testified that Kinard threatened to discharge her
if she did not sign the form. When testifying on direct, Kinard
did not deny, and indeed was not asked to deny, making such a
threat. But, on cross-examination, counsel for the General
Counsel asked her if she had made the threat and she denied
she had (Tr. 145). Kinard, however, had testified earlier that
she “wanted everyone to sign” the form (Tr. 102). Another
employee at that meeting, Sandra Watson, who was still em-
ployed when she testified and appeared reluctantly pursuant to
a subpoena, testified that she did not recall Kinard threatening
to fire employees who did not sign the form. Nonetheless,
Watson testified that she signed the form because “I need my
job.” (Tr. 84.)
The complaint does not allege that Kinard made a threat in
violation of the Act. Thus, I am not called upon to make a
specific finding as to whether the explicit threat Bernice Brown
testified about was uttered during the December 29 meeting.
There is no doubt, however, that both Bernice Brown and Wat-
son felt compelled to sign the form and also felt that their jobs
depended on their signing the form. Based on their testimony,
as well as my negative assessment of Kinard’s demeanor and
testimony, which included emotional outbursts and autocratic
references to employees, I find that she conveyed to employees,
either implicitly or explicitly, the message that they had to sign
the forms to retain their jobs.
According to Bernice Brown’s uncontradicted testimony,
notwithstanding the purported conversion to independent con-
tractor status and the fact that no taxes were withheld from her
LEE’S INDUSTRIES 1269
pay, the substance of her job did not change in any way after
January 1, 2009. She did the same things she did before the
conversion. Nor did Respondent submit any evidence that the
jobs of the other home health care aides changed after January
1.2
Bernice Brown did not, however, abandon her objections to
the independent contractor conversion. On February 26, 2009,
at about 8 p.m. in the evening, Bernice Brown called her im-
mediate supervisor, Gwendolyn Brown, at the latter’s after-
hours job for another employer. In that call, Bernice Brown
complained about President Kinard’s decision to convert the
employees to independent contractors and said she would invite
a representative of the SEIU to the next service meeting of
home health care aides to address the conversion issue. Bernice
Brown also mentioned Human Resources Manager Barbara
Wright, who had recently left Respondent’s employ. Except in
one respect, Bernice Brown’s testimony about her telephone
discussion with Supervisor Brown was essentially corroborated
by Supervisor Brown. Indeed, Supervisor Brown testified that
the discussion began with Bernice Brown expressing her dis-
pleasure about “the 1099,” and also “talked about the Union
and talked about Barbara Wright.” (Tr. 117.) But, contrary to
Bernice Brown, Supervisor Brown also testified that Bernice
Brown speculated that Wright had quit because she “was
probably tired of taking [Kinard’s] shit.” (Tr. 117–118.)3 Ac-
cording to Supervisor Brown, the conversation lasted about 5 or
10 minutes.
The SEIU had made several efforts to organize the Respon-
dent in the past few years. On the witness stand, President
Kinard expressed disgust and disapproval of those efforts. The
record reveals that the SEIU is responsible for a still-ongoing
wage class action suit against the Respondent on behalf of Re-
spondent’s employees. Tr. 104. The record also contains
memos from Respondent and President Kinard asking employ-
ees not to respond to SEIU’s efforts to talk with them. Al-
though those memos go back to 2006, it is clear from Kinard’s
testimony and demeanor that she still harbors strong animosity
toward the SEIU. For example, she explained her opposition to
the SEIU in terms of her employees being “weak,” unable to
“think for themselves” or needing to “have the company ex-
plain things to them.” (Tr. 91–92.)
The morning after the Bernice Brown–Supervisor Brown
telephone discussion, Supervisor Brown reported the substance
of that discussion to President Kinard at Respondent’s head-
quarters. Supervisor Brown testified that she told Kinard that
“Bernice had been talking with the Union and she told me they
were going to be at the next in-service [meeting].” (Tr. 124.)
Immediately after hearing Supervisor Brown’s report, Kinard
directed that Bernice Brown be terminated. Bernice Brown
was called in to Respondent’s headquarters and given a termi-
nation slip that reflected her discharge for “insubordination.”
No further elaboration was given. Neither Kinard nor Supervi-

2 Respondent conceded that Bernice Brown was an employee within
the meaning of the Act for the purposes of this case.
3 Bernice Brown denied, on cross-examination, that she had said
anything “not nice” about Kinard (Tr. 69).
sor Brown talked to Bernice Brown; she was given her termina-
tion slip by a staff employee.
Both Kinard and Supervisor Brown testified that Supervisor
Brown initially reported only Bernice Brown’s statement about
Manager Wright’s probably having quit because she was tired
of taking Kinard’s “shit,” and, immediately after hearing that
report, Kinard directed Bernice Brown’s discharge. They both
testified that the remainder of the telephone discussion—that
dealing with Bernice Brown’s continued complaints about the
independent contractor conversion and her intention to bring
the SEIU into the dispute—was not mentioned until after Ki-
nard directed that Bernice Brown be terminated. I reject that
testimony. It was implausible and contrived, obviously con-
cocted in a lame effort to clothe the discharge with the cloak of
legitimacy. Nor was I impressed with the demeanor of either
witness. Kinard was a completely unreliable witness with pal-
pable union animus, as I have indicated above. I also thought
her professed outrage over Bernice Brown’s alleged offensive
remark was insincere and theatrical. Bernice Brown’s remark,
as related by Supervisor Brown was made while both were off-
duty and was not made in the presence of Kinard. It was far
short of insubordination, which is defined as an intentional
refusal to follow a lawful order of a superior. See Phillips v.
General Services Administration, 878 F.2d 370, 373 (Fed. Cir.
1989). For her part, Supervisor Brown seemed unable to testify
against her employer’s interests; she admitted on cross-
examination that she felt she “needed” to tell Kinard about
Bernice Brown’s reference to the SEIU. (Tr. 124–125.) As the
Supreme Court has stated, the demeanor of a witness may sat-
isfy the trier of fact not only that the witness’s testimony is not
true, but that the truth is the opposite of his or her story. NLRB
v. Walton Mfg. Co., 369 U.S. 404, 408 (1962), quoting from
Dyer v. MacDougall, 201 F.2d 265, 269 (2d. Cir. 1952).4
B. Discussion and Analysis
There is no dispute that Bernice Brown was fired as a result
of her discussion with Supervisor Brown on the evening of
February 26. Supervisor Brown reported the discussion to
President Kinard the next morning and Bernice Brown was
summarily discharged. That discussion involved union and
other protected concerted activities. Bernice Brown continued
her earlier complaints about Respondent’s conversion of em-
ployees to independent contractor status, a matter that clearly
involved a change in terms and conditions of employment and
spawned a group concern, with several employees objecting to
the conversion and initially refusing to sign conversion forms
offered by Respondent. In addition and significantly, in her
February 26 discussion with Supervisor Brown, Bernice Brown

4 The self-serving attempts of Kinard and Supervisor Brown to cre-
ate an artificial distinction between Bernice Brown’s complaint about
the independent contractor conversion and her stated intention to bring
the SEIU into the dispute, on the one hand, and her alleged offensive
remark on the other is, in any event, unavailing. As shown below, the
discussion between Bernice Brown and Supervisor Brown cannot be
parsed into separate elements as a matter of law. Even assuming that
Bernice Brown made the offensive remark, it was part and parcel of her
objection to Kinard’s role in trying to convert the employees to inde-
pendent contractors and her intention to bring the SEIU into the matter.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1270
also threatened to bring the SEIU into the dispute. That
amounts to union activity, which is clearly protected by the
Act. For the purposes of this analysis, I will assume that, in
criticizing Kinard for her role in the conversion, Bernice Brown
made the remark attributed to her by Supervisor Brown—that
Human Resources Manager Wright had probably quit because
she was tired of taking Kinard’s “shit.” That alleged remark
was clearly part of Bernice Brown’s protest against the conver-
sion of the employees’ jobs and her expressed intent to bring
the SEIU into the dispute. And, as shown below, the discharge
for engaging in that protest and expression of intent was viola-
tive of the Act.
Contrary to Respondent’s contention, the discussion that
prompted the discharge must be considered in its entirety. An
employee’s right to engage in union and other protected con-
certed activity permits “some leeway for impulsive behavior.”
NLRB v. Thor Power Tool Co., 351 F.2d 584, 586–587 (7th
Cir. 1965). In Thor Power, an employee participated in a tense
grievance meeting between his union representative and a man-
agement official. As he was leaving the meeting, which took
place in the manager’s office, the employee referred to the
management official as a “horse’s ass,” after which the em-
ployee was summarily discharged. The court upheld the
Board’s finding that the discharge was violative of the Act. It
rejected the employer’s contention that the employee’s deroga-
tory term could be separated from the protected activity to
which it was related. As the court stated, “the remark cannot be
considered in a vacuum,” and “not every impropriety commit-
ted during [concerted or union] activity places the employee
beyond the protective shield of the act.” Id.
This case presents a similar issue, even though Bernice
Brown’s alleged offensive remark was nowhere near as offen-
sive as the remark made in Thor Power. The analytical model
in this type of case was described in Stanford Hotel, 344 NLRB
558 (2005), as follows:

When an employee is discharged for conduct that is part of
the res gestae of protected concerted activities, the pertinent
question is whether the conduct is sufficiently egregious to
remove it from the protection of the Act. Aluminum Co. of
America, 338 NLRB 21 (2002). In making this determina-
tion, the Board examines the following factors: (1) the place
of the discussion; (2) the subject matter of the discussion; (3)
the nature of the employee’s outburst; and (4) whether the
outburst was, in any way, provoked by an employer’s unfair
labor practice. Atlantic Steel Co., 245 NLRB 814, 816
(1979).5

5 Where, as here, there is no dispute as to the reason for the dis-
charge and the reason implicates concerted protected or union activity,
there is no need to apply the burden shifting analysis for dual motive
cases set forth in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d.
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). See American
Steel Erectors, Inc., 339 NLRB 1315, 1316 (2003); and Felix Indus-
tries, 331 NLRB 144, 146 (2000), remanded 251 F.3d 1051 (D.C. Cir.
2001), on remand 339 NLRB 195 (2005). In any event, Respondent’s
attempt to show that Bernice Brown was or would have been dis-
charged solely because of a uniform policy against her alleged “insub-
ordination” is undercut by the following: (1) I have discredited the
testimony of President Kinard and Supervisor Brown as to their as-
Applying the above principles, I find that Bernice Brown’s
alleged outburst or offensive remark was not sufficiently egre-
gious to render her otherwise protected discussion with her
supervisor unprotected. First, the discussion did not take place
in the workplace or in Kinard’s presence. The discussion took
place during a telephone conversation between Bernice Brown
and her supervisor while neither was on duty. Secondly, the
discussion essentially involved Bernice Brown’s criticism of
Kinard’s employment policies, which she thought warranted
the intervention of a union. And thirdly, Bernice Brown’s out-
burst, which was not addressed to Kinard, was intimately con-
nected with the above subject matter. In colloquial terms or
slang, the word “shit” is defined as “pretense, lies, exaggeration
or nonsense.” Random House Webster’s Unabridged Diction-
ary (Second Edition, 1998). See also The American Heritage
Dictionary of the English Language (William Morris, Editor,
1969) whose slang definition of the word includes “worthless
matter; junk” and “foolish or misleading talk; nonsense.” In
effect, Bernice Brown was saying that a manager had probably
quit because of the same kind of “junk” or “nonsense” that
Kinard was putting the employees through on the conversion
issue—an issue that, according to Bernice Brown, warranted
union intervention. The word Bernice Brown used is certainly
less offensive—more tangential and less personal—than calling
a manager a “horse’s ass,” the term that was found not to justify
termination in Thor Power. Finally, as I have indicated above,
Bernice Brown’s outburst did not amount to insubordination
and Respondent’s calling it so does not make it so. Considera-
tion of the above factors strongly supports the conclusion that
Bernice Brown’s outburst did not render her discussion with
her supervisor unprotected. The remaining factor—whether the
outburst was prompted by an unfair labor practice—is not pre-
sent in this case. But the absence of that factor here does not
change the result.
In these circumstances, I find that Respondent discharged
Bernice Brown for engaging in union and other protected con-
certed activity. Respondent thus violated Section 8(a)(3) and
(1) of the Act.
CONCLUSIONS OF LAW
1. By discharging employee Bernice Brown for engaging in
union and other protected concerted activity Respondent vio-
lated Section 8(a)(3) and (1) of the Act.
2. The above violation is an unfair labor practice affecting
commerce within the meaning of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I conclude that it should be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act. Having discriminatorily dis-
charged Bernice Brown, Respondent must offer her reinstate-

serted reason for the discharge; and (2) Respondent failed to comply
with the General Counsel’s subpoena requesting records concerning
similar discharges (Tr. 6–18, GC Exhs. 3, 4). See, with respect to the
failure to comply with subpoenas, McCallister Towing & Transporta-
tion, 341 NLRB 394, 394–397 (2004), enfd. 156 Fed. Appx. (2d Cir.
2005).
LEE’S INDUSTRIES 1271
ment and make her whole for any loss of earnings and other
benefits, computed on a quarterly basis from the date of dis-
charge to the date of a proper offer of reinstatement, less any
net interim earnings, as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended6
ORDER
The Respondent, Lee’s Industries; Lee Home Health Ser-
vices, Inc.; and Lee’s Companies, Inc., a single employer,
Philadelphia, Pennsylvania, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against any em-
ployee for engaging in protected concerted activities or sup-
porting the SEIU or any other union.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of the Board’s order, offer
Bernice Brown full reinstatement to her former job or, if that
job no longer exists, to a substantially equivalent position,
without prejudice to her seniority or any other rights or privi-
leges previously enjoyed.
(b) Make Bernice Brown whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
her in the manner set forth in the remedy section of this deci-
sion.
(c) Within 14 days from the date of the Board’s order, re-
move from its files any reference to the unlawful discharge,

6 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.
and, within 3 days thereafter, notify Bernice Brown in writing
that this has been done and that the discharge will not be used
against her in any way.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide, at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this order.
(e) Within 14 days after service by the region, post at its fa-
cility in Philadelphia, Pennsylvania, copies of the attached No-
tice marked “Appendix.”7 Copies of the notice, on forms pro-
vided by the Regional Director for Region 4, after being signed
by the Respondent’s authorized representative, shall be posted
by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since July 17, 2009.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official,
on a form provided by the region, attesting to the steps that the
Respondent has taken to comply.

7 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”