Broyhill & Associates, Inc.

National Labor Relations Board - Board DecisionsSep 29, 1989

296 N.L.R.B. 904 (N.L.R.B. 1989)

904 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Broyhill & Associates, Inc. and United Steelworkers of America , AFL-CIO-CLC. Case 4-CA-17580 September 29, 1989 DECISION AND ORDER BY MEMBERS CRACRAFT, HIGGINS, AND DEVANEY On July 19, 1989, Administrative Law Judge Richard H. Beddow Jr . issued the attached deci- sion . The Respondent filed exceptions and a sup- porting 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 brief and has decided to affirm the judge 's rulings, findings, I and conclusions and to adopt the recommended Order as modified. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent , Broyhill & Associates , Inc., Annville, Pennsylvania , its officers , agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 2(a). "(a) Offer Robert Paine immediate and full rein- statement to his former job or, if that job no longer exists, to a substantially equivalent position, with- out prejudice to his seniority or any other rights or privileges previously enjoyed and make him whole for any loss of earnings and other benefits resulting from his discharge , less any net interim earnings, plus interest." 2. Substitute the attached notice for that of the administrative law judge. I No exceptions have been filed to the judge 's characterization of the Respondent 's bulletin board policy To organize To form, join , or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT issue warnings to our employees or otherwise discriminate against them because of their activities in support of union affiliation for purposes of collective-bargaining representation or otherwise engaging in protected concerted activi- ties. WE WILL NOT discharge any employee for activ- ity protected by Section 7 of the Act. 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 Robert Paine immediate and full reinstatement to his former job or, if this job no longer exists , to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed and WE WILL make him whole for any loss of earnings and other benefits resulting from his discharge, less any net interim earnings , plus interest. WE WILL expunge from our files any reference to the warning and discharge of Robert Paine, and notify him in writing that this has been done and that evidence of the unlawful discharge and warn- ing will not be used as a basis for future personnel actions against him. BROYHILL & ASSOCIATES, INC. William E. Slack, Jr. Esq., and Mark E. Arbesfeld, Esq., for the General Counsel. Stephan J. Boardman, Esq., of Washington , D.C., for the Respondent. Debbie Rodman Sandler, Esq., of Philadelphia, Pennsyl- vania, for the Charging Party. 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. Section 7 of the Act gives employees these rights. DECISION STATEMENT OF THE CASE RICHARD H. BEDDOW JR., Administrative Law Judge. This matter was heard in Lebanon , Pennsylvania, on March 8, 1989. Briefs subsequently were filed by all par- ties . The proceeding is based upon a charge filed Sep- tember 12 , 1988,1 by United Steelworkers of America, AFL-CIO-CLC. The Regional Director's complaint dated November 28, alleges that Respondent Broyhill & Associates, Inc., of Annville , Pennsylvania, violated Sec- I All following dates will be in 1988 unless otherwise indicated 296 NLRB No. 115 BROYHILL & ASSOCIATES tion 8(a)(1) and (3) of the National Labor Relations Act by issuing a disciplinary warning to and discharging Robert Paine because of his union activities. On a review of the entire record in this case and from my observation of the witnesses and their demeanor, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent is engaged in the manufacture , distribution and sale of limestone and it annually ships and receives goods valued in excess of $50,000, respectively, in inter- state commerce . It has an annual gross revenue in excess of $500,000, and it admits that at all times material is, and it has been , an employer engaged in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. It also admits that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES On February 1, 1988, Respondent purchased the Ann- ville facilities previously operated by the Bethlehem Steel Corporation . After the acquisition , it employed a number of former Bethlehem employees including Robert Paine, who had worked for Bethlehem for ap- proximately 37 years. Paine was president of the Steel- workers' Local which had represented Bethlehem's Ann- ville employees before and during the acquisition. He also was involved in negotiations for the acquisi- tion . Those negotiations failed to result in a contract be- tween Broyhill and the Union. Paine worked as an automatic skip hoist operator at the Annville facility. He had trained all the new skip hoist operators for the Respondent and he had never been "written up" for poor performance . Both his imme- diate supervisor , Warren Ditzler, and Robert Furlong, vice president of operations , testified that Paine was a good worker. Shortly after starting up its operations at Annville, the Company learned that a union other than the Steelwork- ers, namely the International Union of Operating Engi- neers, was trying to organize the plant's employees. At an employees' meeting in February 1988, Furlong asked the employees not to support a union until after the new owners had had a chance to prove themselves. At one point in the meeting, Furlong said "we know that Bob Paine is handing out authorization cards, but we're asking you to hold off for now." At that point, Paine re- plied that he had not been handing out any cards up until then , but maybe he would start doing so. Following this exchange , Paine did contact Steelwork- ers' organizing coordinator , Donald Harper . Harper testi- fied at the hearing that Paine was put in charge of col- lecting authorization cards on behalf of the Steelworkers and began the process of obtaining signed cards from employees. On July 5, Paine was in the employees ' "welfare area," a place where no work was performed , before the begin- ning of his shift . Employees used the area to get ready for their shifts and to change and shower following each 905 shift (buses then take employees to and from their work areas). Before the beginning of his shift , Paine handed out union "fliers" that announced the time and place of the next Steelworkers ' local meeting, and advertised the fact that representatives of the International Union would be present to answer questions and he put addi- tional copies on the benches in the changing area. When Paine's supervisor, Warren Ditzler , observed Paine with the fliers he asked what he was doing . Paine offered him a flier, but he refused to take one . Ditzler asked him to stop and told him that he was receiving a verbal warning for distributing papers . Ditzler also testified that he then added Paine was getting a warning for littering. A week later Paine found out that Ditzler had placed a warning, including a copy of the flier, in his personnel file for vio- lating company Rule No . 8 by distributing "printed matter of any description " in the welfare building "during working time ." After he spoke to Paine, Ditzler threw out the remaining fliers. Shortly after Paine was reprimanded orally, Ditzler mentioned to Furlong that he had placed a written repri- mand notice in Paine's personnel file but that he had not told Paine that it had been placed in his file. Subsequently , Furlong spoke with Paine and told him that Ditzler had placed a warning in his file . Furlong tes- tified that he also told Paine that he would be allowed to post materials , but had to ask. Early on the afternoon of July 29, a serious fire oc- curred at Respondent's No. 5 kiln. Following this emer- gency, Furlong became occupied with various tasks to ensure prompt repairs and resumption of production. At about midnight on the evening of July 29, he returned to the plant from his home because he was concerned about the fire cleanup. After inspecting kiln 5 , he decided to drive down to the kilns where Paine worked to speak with employees about the importance of keeping up pro- duction at the other kilns. Furlong first spoke briefly with the lime burner and lime burner helper . He then walked the length of the kilns to the automatic skip hoist shanty area and found Paine coming from the man hoist area . Paine and Fur- long exchanged some small talk concerning the fire. Fur- long then told Paine that there had been some com- plaints from employees that "he had not been doing the job he was supposed to be doing ." Furlong testified that Paine replied that he was a good worker who always had his bins full, and that Furlong should bring his ac- cusers to him so he could set them straight. Furlong re- sponded that if what the people were saying was true, Paine needed to straighten up and fly right , so it would not be a problem in the future . He then added that Paine was also spending too much time in the break (or lunch) room . According to Furlong , the remainder of his con- versation with Paine went as follows: At first Bob started out telling my [sic ] that, you know , it was his habit to do that and he was going to keep doing that . I then asked him , I said "you mean to tell me I am standing out here at 1:00 in the morning talking to you about a problem and you are just telling me you are not going to change." He got very serious, and to the best of my 906 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD knowledge, what he said exactly was, "Mr. Fur- long, I am telling you that I am not going to change what I have been doing for 32 years, and if you want somebody else to do this job any differ- ently, you need to fire me and get somebody else." I looked at him and I said , "Bob, are you telling me I have got to fire you for you to change your habits?" He said , "Yes sir ." I said , "Well then let's do it, go get your lunch bucket." Paine's version of this incident is similar to that given by Furlong . Paine testified that Furlong came to his work area at about 1 a.m. on July 30. After they had ex- changed comments about the fire, Furlong told Paine that "they" had complained about his failure to do his work and pull his weight on the lower end . Paine de- fended himself and told Furlong that he was doing his work and this could be verified by the amount of stone being put in the kiln. According to Paine, when Furlong reiterated that "they" said he was not doing his work, he asked who they were since he wanted to know who was talking about him. Paine testified that Furlong then com- plained about Paine frequenting the lunchroom too often. Paine again asked who was complaining about him not doing his work since no foreman had ever told him that he was not doing his work . Furlong continued to com- plain about Paine's work habits and Paine testified that the conversation ended as follows: Well, the conversation went on and he kept on coming back about me not doing enough work. I said, hey, I am doing what I can do; if that is not going to be enough work for you , I said you will have to fire me. Then he said the words and I went right over to the Welfare Building and wrote them down. These are the exact words: "Then let's do it, that's what I am here for. Get your bucket." Furlong testified that Paine was discharged because he was unwilling to change his habit of going to the lunch- room five or six times a day . With respect to the "com- plaints," he mentioned during his conversation with Paine, Furlong testified that in early July, but after July 7, Foreman Ray Arnick had told him that one skip hoist operator had complained that Paine was not leaving the stone bins full but he could not recall any other com- plaints from supervisors or employees about Paine's work . Arnick himself had never complained about Paine and no action was taken to attempt to correct the alleged problem . Paine also was never warned or disciplined for excessive use of the lunchroom and Paine 's regular fore- man never complained about Paine 's use of the lunch- room. The only apparent complaint had come from Bar- bara Wanamaker , the hydrate plant foreman , who com- plained (apparently to Furlong), that her employees were being disciplined for excessive use of the lunchroom while Paine was not. Subsequent to Paine's discharge Respondent tore down the old lunchroom and built a new one with nu- merous windows so that it could better monitor its use by employees. Paine had worked 37 years for Respondent's predeces- sor, the last 14 years as automatic skip hoist operator, the same job he assumed with Respondent when it took over operations on February 1. The automatic skip hoist is fully automatic. The operator controls several switches which operate gates and belts and run the hoist which covers an extensive area and is designed to store and transfer bulk limestone for heating in kilns where it is processed into lime for commercial or agricultural use. The automatic skip hoist operator's primary responsibil- ity is to keep the bins full with stone so the kiln can run continuously. He is responsible for lubricating the belts and cleaning up his area and it is an accepted practice for some operators to read while the machinery is oper- ating smoothly. The automatic skip hoist operator works with a lime burner and a lime burner helper as a three- man team. The lime burner helper and lime burner are normally located between 200 and 250 feet away at the opposite end of the kiln near a control shanty. At the time of Paine's termination, a lunchroom was located near that area and both the lime burner helper and lime burner often sat in the lunchroom when work was slow. This break area was in a sectioned-off part of the kiln building and contained about 30 lockers, a large table with benches, adjacent bathroom facilities, soda and candy machines, and a water cooler with salt tablets- principally used in the summer to prevent dehydration. Paine estimated that he went to the lunchroom two to three times a shift, often to get a soda or candy bar or to use the bathroom. He sometimes went to the lunchroom to communicate with the lime burner and lime burner helper about such things as stone size and kiln speed and he would also inspect the belts and gears of the complex and went from one section to the other. Another hoist operator testified that he went to the lunchroom once or twice a shift, and on occasion would remain there for as long as one-half hour. He observed that there could be anywhere from 1 to 10 employees in the lunchroom at any given time. As noted above, Paine was responsible for training all of Respondent's other automatic skip hoist operators. He received several compliments from supervisors regarding his work performance, including one from Foreman Arnick just 10 days prior to his discharge. Furlong testified that he had been advised that Paine had a lot of knowledge about the kilns and everything else. He also testified that when a foreman's position became available he thought that Paine could work out in that capacity. In early July, he spoke with Paine about the possibility of taking the foreman's job (Furlong also said he spoke to others and did not formally offer Paine the position at that time). Evidence was presented which shows that Respondent employs a progressive disciplinary procedure as set forth in its employee handbook which provides generally for three warnings prior to discharge of an employee, how- ever, violations such as theft, falsification of company records, and drug or alcohol use on company premises call for immediate suspension pending investigation of the incident. Furlong testified that he expects his fore- men and supervisors to follow the progressive discipli- nary guidelines set forth in the employee handbook, and any digressions from the guidelines must be reviewed by BROYHILL & ASSOCIATES higher level management . He testified that the guidelines were not "hard and fast," but were followed 90 to 95 percent of the time. III. DISCUSSION In a discharge case of this nature, applicable law re- quires that the General Counsel meet an initial burden of presenting sufficient evidence to support an inference that the employee 's union or other protected , concerted activity was the motivating factor in the employer 's deci- sion to terminate the employee . Here, the record shows that Paine was president of the Union that represented Respondent 's predecessor's employee , and that he had represented the Union 's interest during negotiations lead- ing to Respondent 's purchase of its facility and its deci- sion to commence operations without recognition of the Union . Moreover, at the first hint of union organizational activity at the plant, Paine was singled out by vice presi- dent of operations , Furlong (who had participated in the purchase negotiations), in a plant meeting as being re- sponsible for handing out authorization cards . Furlong, however , had precipitously jumped to an erroneous con- clusion regarding Paine's involvement as it was another union that was involved in the organizational effort. After the accusation , Paine publicly stated that maybe he would start handing out authorization cards and his Union did thereafter start its own campaign. As otherwise concluded below , Respondent reacted to Paine's efforts in a manner which illegally infringed upon the employee's Section 7 rights by issuing a warning when it observed Paine attempting to distribute union lit- erature during nonwork time in a nonwork area . Shortly after this occurrence , when Paine engaged in a verbal ex- change with the plants vice president for operations, he was immediately discharged without investigation or ap- plication of its published progressive system. Under these circumstances , I find that the General Counsel has met his initial burden by presenting a prima facie showing , sufficient to show antiunion animus and to support an inference that Paine's union activities were the motivating factor in Respondent 's decision to termi- nate him. Accordingly, the testimony will be discussed and the record evaluated in keeping with the criteria set forth in Wright Line, 251 NLRB 1083 (1980), see NLRB v. Transportation Management Corp., 462 U.S. 393 (1983), to consider Respondent 's defense and, in the light there- of, whether the General counsel has carried his overall burden. Respondent's defense is based upon its contention that it had a right to terminate Paine for cause without resort to its progressive discipline system because of his gross and willful insubordination . In this connection, Respond- ent presented evidence regarding six employees who were discharged outside its progressive disciplinary system . The conduct of these employees ranged from writing obscenities on one's body at the company picnic to engaging in a fist fight with a supervisor . Two other employees were discharged after they threatened their foreman by telling him that the plant was not going to run the next day . Another employee was terminated for filing false reports . The sixth employee was fired only after he had refused to perform his assigned duties twice 907 in one week . However, as shown by the General Coun- sel some employees who committed infractions similar to Paine's were not terminated. Specifically, Charles Rhoads received one written warning for sleeping on the job and another for reading rather than performing his assigned tasks but was never terminated . J.L. Heisler was warned rather than terminated when he was found hiding behind an air conditioner on the plant roof when he should have been working. Although employee David Miller ultimately was discharged , it was only after he had been given four warnings for failure to complete job assignments . James Weatherholtz was issued four written warnings in a 6-month period for insubordination , willful misconduct and hiding on the job. On July 25 (4 days before Paine was fired), Weatherholtz was given a 1- week suspension ; the supervisor cited the employee handbook 's progressive discipline policy as authority. On the same warning report, the Company noted that any further violation of company rules would result in dis- charge. Here, Paine's discharge was documented by Furlong with a long, detailed narrative of the alleged incident prepared , signed and retained for the file . In other exam- ples offered by Respondent , the "reason for termination" is listed only as "fired ." Paine was never accused of being abusive, or vulgar, or speaking in a rude or threat- ening manner and the record otherwise fails to reflect any such behavior . In substances , his alleged gross insub- ordination was his failure to agree with Vice President Furlong's accusations and implications that he was taking five or six breaks and was not doing his job. In an appar- ent effort to emphasize the strength of his belief in the justification for his work habits , Paine indicated, in effect , that he should be fired if his record was so bad that Respondent could justify his discharge . Here, I find that the accusation of gross and willful insubordination is a gross exaggeration of what actually occurred. More- over, I find that any perceived insubordination was un- justifiably provoked by Furlong' s untimely and inaccu- rate accusations. Furlong immediately seized upon Paine's remarks and fired him. Furlong did not make any investigation to find out the truth about the number of breaks Paine took nor to determine the effect Paine's work patterns had on his production . It otherwise is not substantiated on the record that Paine took more than three regular breaks and I conclude that Furlong's accusation of excessive breaks was a gross exaggeration that would not have been substantiated under proper investigation . It also ap- pears that an investigation would have confirmed the ex- istence of what Furlong admitted was a general problem of employees spending too much time in the lunchroom, a problem that the Company finally resolved by tearing down the old lunchroom and building a new one in a lo- cation more amenable to observation by management. Paine was summarily discharged for reiterating that he planned to perform his job as he had in the past. Re- spondent had used Paine to train other operators to per- form the same function , his foreman had recently praised his work and Furlong himself acknowledged that Paine's work had recently been recommended to be of a high 908 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD enough level for Furlong to discuss with him the possi- bility of promotion to a foreman position. Here, Respondent 's harsh reaction is inconsistent with its past satisfaction with Paine 's work and with its recog- nized progressive disciplinary system . Moreover, it ap- pears that Paine's defensive response to Furlong 's accu- sations was provoked by Furlong's citation of ambiguous complaints by undisclosed individuals and by his proba- ble unfounded and uninvestigated description of the number and circumstances of Paine's appearances in the breakroom . Furlong certainly gained no justification for immediately firing Paine merely because he provoked Paine to use the phrase "fire me" in response to Fur- long's accusations and Respondent otherwise shows no persuasive justification for Furlong 's precipitous and ex- treme action. As indicated by both the General Counsel and the Charging Party, the timing of Furlong 's action shortly after an improper written warning for distributing union literature was surreptitiously placed in his file , the dispar- ate nature of the discipline , and the failure to follow its established progressive disciplinary system all indicate the pretextual nature of Respondent 's defense. A comparison of Paine's superior work record and the true nature of his alleged offence (insubordination by de- fending himself from accusations about his longstanding work record and work habits), with the questionable records of the other employees who were disciplined, the significantly more serious nature of their offenses, and the forbearance generally shown with respect to timing, investigation , and level of discipline , all persua- sively show that Paine was unjustifiably subjected to dis- parate treatment and I find that it supports a conclusion that Paine's discharge was motivated by a discriminatory intent based on his union activities and his position of president of the Union which represented Respondent's predecessor's employees. Under these circumstances , it is clear that the Re- spondent has failed to show that Paine would have been discharged absent his union activities and protected con- certed activity. The General Counsel otherwise has met its overall burden of proof and I further conclude that Respondent 's discharge of Paine is shown to have been in violation of Section 8(a)(1) and (3) of the Act, as al- leged. As noted above, a few weeks prior to his discharge Paine also was given a disciplinary warning for distribut- ing printed matter (union literature) on worktime and a formal written warning was placed in his file, although he initially was not appraised of it . Here, the record shows that Paine distributed union literature prior to worktime (his shift started at 11 p.m., the time of the al- leged warning states the time of the infraction as 10:30 p.m.) in the so-called welfare building, an area remote from the employees' actual jobsites. The building is used for punching the timeclock , and catching a bus to the work area, normally 20 minutes prior to each shift change . Only janitorial work is performed at the building and I find that it is a nonwork area where distribution of union literature is permissible , see Transcon Lines, 235 NLRB 1163 (1978). Here, Respondent's no-distribution rule does not pro- hibit distribution of literature during breaks or other specified periods during the workday when the employee is properly not engaged in performing work tasks, and, as Paine was on nonworktime prior to the start of his shift and had not even boarded the bus to the work area, he clearly was not in violation of the Respondent's no- distribution rule, and the Company's attempt to prevent him from distributing literature in a nonwork area on nonworktime clearly violated the Act. Although Respondent asserts that it has a procedure through which employees could gain access to bulletin boards in the welfare building, it required employees to secure authorization from a supervisor by showing him or her the item to be posted. The Board has found that the imposition of such a requirement is an unlawful re- striction on the exercise of employee rights. See Vought Corp., 273 NLRB 1290, 1291 (1984). At the hearing Foreman Ditzler testified that he warned Paine to restrict littering, however, the written warning was for violation of rule 8 distributing "printed matter of any description" in the welfare building "during working time" and did not mention littering. This littering rational clearly is pretextual and enforces the implication that Respondent's warning was motivated by antiunion considerations and to inhibit the Union's principal known adherent from engaging in the well rec- ognized right to distribute union literature during non- working time and in nonworking areas, see Singer Co., 220 NLRB 1179 (1975). Accordingly, I find that Re- spondent's warning to Paine is shown to be unjustified and illegally motivated and a violation of Section 8(a)(1) and (3) of the Act, as alleged. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. By warning and discharging Robert Paine on July 5 and 28, 1988, respectively , Respondent engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices , it is recommended that the Respondent be ordered to cease and desist therefrom and to take the affirmative action described below which is designed to effectuate the policies of the Act. With respect to the necessary affirmative action, it is recommended that Respondent be ordered to reinstate Robert Paine to his former job or a substantially equiva- lent position, without prejudice to his seniority or other rights and privileges previously enjoyed, and make him whole for any loss of earnings he may have suffered be- cause of the discrimination practiced against him by pay- ment to him a sum of money equal to that which he nor- mally would have earned from the date of the discrimi- nation to the date of reinstatement, in accordance with the method set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as computed in New Horizons for BROYHILL & ASSOCIATES the Retarded, 283 NLRB 1173 ( 1987),2 and that Re- spondent expunge from its files any reference to the dis- charge, as well as the unlawful warning , and notify him in writing that this has been done and that evidence of this unlawful discipline will not be used as a basis for future personnel action against him. Otherwise , it is not considered to be necessary that a broad order be issued. On these findings of fact and conclusions of law and on the entire record , I issue the following recommend- ed3 ORDER Respondent , Broyhill & Associates, Inc., Annville, Pennsylvania , its officers , agents, successors, and assigns, shall 1. Cease and desist from (a) Issuing warning to employees or otherwise dis- criminating against them because of their activities in support of union affiliation for purposes of collective-bar- gaining representation or otherwise engaging in protect- ed concerted activities. (b) Discharging any employee for activity protected by Section 7 of the Act. (c) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of rights guaranteed them by Section 7 of the Act. t Under New Horizonti . interest is computed at the "short -term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U.S.C § 6621 Interest accrued before 1 January 1987 ( the effective date of the amendment ) %hall be computed as in Florida Steel Corp., 231 NLRB 651 (1977) :' If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations . the finding , conclusions, and recommended Order %hall, as provided in Sec 102 48 of the Rules , be adopted by the Board and all objections to them %hall be deemed waived for all pur- poses 909 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Robert Paine immediate and full reinstate- ment and make him whole for the losses he incurred as a result of the discrimination against him in the manner specified in the remedy section. (b) Expunge from its files any reference to the warning and discharge of Robert Paine and notify him in writing that this has been done and that evidence of the unlawful discharge and warning will not be used as a basis for future personnel actions against him. (c) Preserve and, upon request , make available to the Board or its agents for examination and copying, all records, reports , and other documents necessary to ana- lyze the amount of backpay due under the terms of this decision. (d) Post at its Annville, Pennsylvania facility, copies of the attached notice marked "Appendix."4 Copies of the notice, on forms provided by the Regional Director for Region 4 , after being signed by Respondent 's authorized representative shall be posted by Respondent immediate- ly upon receipt and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken by Respondent to ensure that said notices are not altered , defaced , or covered by any other materi- al. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. '' 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" %hall read "Posted Pursuant to a Judgment of the United States Court of Appeak Enforcing an Order of the National Labor Relations Board "