Ferro Manufacturing Corp.

878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lexington Metal Products Company, Division of Ferro Manufacturing Corporation and United Steelworkers of America, AFL-CIO. Case 26-CA-2599 July 28, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On May 19,1967, Trial Examiner George J. Bott issued his Decision in the above-entitled proceed- ing, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the Act, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He further found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, and the General Counsel filed cross-excep- tions to the Trial Examiner's Decision, and a brief in support of the cross-exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, cross- exceptions, and briefs, and the entire record in the case, and hereby adopts the Trial Examiner's findings,' conclusions, and recommendations, as modified below. The Trial Examiner found that Supervisor Pierce's conduct in asking employee Marie Sumler to remove her union button because it would "do her no good," and in telling her that she was "headed for trouble," was not violative of the Act in that it was merely a personal expression of opinion. We disagree. Pierce's remarks clearly con- stituted a threat of reprisal to Sumler unless she ceased engaging in protected union activity, and thus violated Section 8(a)(1) of the Act. In view of this finding, we shall amend the Trial Examiner's Conclusion of Law 3, to read as fol- lows: "3. By maintaining and enforcing a rule prohibit- ing employees from soliciting in connection with union activities during their nonworking time or from distributing literature on behalf of any labor organization during nonworking time in nonworking areas of Respondent's plant, by promising an em- 166 NLRB No. 106 ployee a reward if he would abandon his union ac- tivities, and by threatening reprisals against an em- ployee for engaging in union activities, Respondent has interfered with, restrained, and coerced its em- ployees in the exercise of the rights guaranteed by Section 7 of the Act and thereby committed unfair labor practices within the meaning of Section 8(a)(1) of the Act." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner, and hereby orders that the Respondent, Lexington Metal Products Company, Division of Ferro Manufactur- ing Corporation, Lexington, Tennessee, its officers, agents, successors, and assigns, shall take the ac- tion set forth in the Trial Examiner's Recom- mended Order, as modified below: 1. Insert the following as paragraph 1(c) of the Trial Examiner's Recommended Order, the present paragraph 1(c) being relettered as 1(d): "(c) threatening employees with reprisals for en- gaging in union activities." 2. In the third indented paragraph of the Appen- dix attached to the Trial Examiner's Decision add the following after the word "activities": , or threaten employees with reprisals for en- gaging in union activities. IT IS HEREBY FURTHER ORDERED that the com- plaint herein be, and it hereby is, dismissed insofar as it alleges violations not found herein- I We hereby correct the following inadvertent errors in the Trial Ex- aminer's Decision In the first paragraph of the subheading, "1. The no- solicitation and no-distribution rule," the dates "December 1964" and "December 28, 1964" should be corrected to read "December 1963" and "December 28, 1963;" and in fn_ 25, the words "Employer Norman Davis" should be corrected to read "Employee Norman Davis." TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GEORGE J. BOTT, Trial Examiner: United Steelworkers of America, AFL-CIO, herein called the Union , filed a charge against Lexington Metal Products Company, Division of Ferro Manufacturing Corporation,' on November 14, 1966, which it amended on January 20, 1967, to show the correct name of Respondent. On December 30, 1966 , the General Counsel issued a com- plaint which was amnded on January 23, 1967. The com- plaint, as amended, alleged that Respondent Company had violated Section 8 (a)(1) and (3) of the National Labor Relations Act, as amended , herein called the Act. Hear- ing was held on March 9 and 10, 1967, in Lexington, Tennessee, before me. Subsequent to the hearing, General Counsel and Respondent filed briefs. ' This is the correct name of the Respondent as it developed at the hear- ing. LEXINGTON METAL PRODUCTS CO. 879 Upon the entire record in the case and from my obser- vation of the witnesses, I make the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS Lexington Metal Products Company, Division of Ferro Manufacturing Corporation, a Michigan corpora- tion, operates a plant in Lexington, Tennessee. During the 12-month period prior to the issuance of the com- plaint, Respondent, in the course and conduct of its operations, received goods and materials valued in excess of $50,000 directly from points outside the State of Ten- nessee, and during the same period, it sold and shipped goods valued in excess of $50,000 directly to points out- side the State of Tennessee. Respondent concedes, and I find, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Il. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Alleged Acts of Interference, Restraint, and Coercion in Violation of Section 8(a)(1) of the Act 1. The no-solicitation and no-distribution rule In July 1963, Lexington Metal Products Company published an employee handbook containing various rules, one of which prohibited "Unauthorized soliciting of funds or distribution of literature on Company proper- ty." In December 1964, the Regional Office of the Na- tional Labor Relations Board notified the then plant manager that the rule was illegal. By letter of December 28, 1964, the plant manager advised the Regional Office that all copies of the employee handbook distributed thereafter would have the rule "blanked out" and that the Company had posted a notice to all employees advising them that the rule was "completely repealed." In November 1965, the employee handbook was reis- sued and distributed to Respondent's employees. It again provided penalties for various kinds of employee miscon- duct and listed as prohibited conduct "Unauthorized sol- iciting of funds or distribution of literature on Company property." By letter of December 16, 1966, the Regional Office advised Respondent that the investigation of the instant charge of unfair labor practices had brought the above rule to its attention and it considered it to be a violation of the Act. On December 20, 1966, counsel for Respondent informed the Region that a new handbook would be published in which the rule would not appear and that the Company would also post a notice advising employees of its deletion. In December 1966, Respond- ent posted a notice informing employees that: "Rule 69(b), Unauthorized solicitation of funds or distribution of literature on Company property was revoked by a notice published in 1963. By accident it was included in a later edition of the handbook. However the revocation of this rule remains in effect. A revised edition of the handbook will be issued shortly." Not long after this notice was posted, Respondent reprinted and distributed a new handbook which did not contain the no-solicitation and no-distribution rule. The complaint alleges that by maintaining rule 69(b) in its November 1965 employee handbook, Respondent violated Section 8(a)(1) of the Act.2 Respondent argues, however, that because there is no evidence that the rule in question was established or maintained for the purpose of prohibiting union activity, or was discriminatorily ap- plied, and has, in any case, been rescinded and employees notified to that effect, it would be pointless and unneces- sary to require Respondent to post a notice prepared by the Board that it will not maintain such a rule. Implicit in Respondent's contention is the suggestion that rule 69(b), as it appeared in the November 1965 handbook, was not on its fact violative of the Act. In my opinion, Respond- ent's arguments about the rule and the necessity for a remedial order are improperly premised, for rule 69(b) is presumptively invalid. It is well established that no-sol- icitation and no-distribution rules which prohibit union solicitation or distribution of union literature on company property by employees during their nonworking time are presumptively invalid unless the employer can show spe- cial circumstances making the rule necessary in order to maintain production or discipline.3 No contention is made here of the existence of any such special circumstances. It is only where a rule is presumptively valid because its prohibition is directed against solicitation by employees during their working time and against distribution in working areas of the plant that evidence of illegal purpose or discriminatory application of the rule is relevant.4 Respondent's rule applies to all areas of the Company's property and is not restricted to employees' working time. Although the rule does not specifically state that it applies to matters related to unions , it must be so construed, because it is all-inclusive in prohibiting "unauthorized solicitation" or "distribution." Since the rule is presump- tively invalid, it is not for General Counsel to show that 2 The complaint alleges more specifically that "On or about June 14, Poultry Farms, Inc., 163 NLRB 972. 1966, and at all times since and prior thereto . ," Respondent main- 3 Walton Manufacturing Company, 126 NLRB 697, enfd. 289 F.2d tained the rule in violation of law. Because of Section 10(b) of the Act, the 177, 180 (C.A. 5); Stoddard-Quirk Manufacturing Co., 138 NLRB 615. complaint properly does not attack the promulgation of the rule, and, for 4 Wm. H. Block Company, 150 NLRB 341, relied on by Respondent, the same reason, maintenance of the rule prior to June 14, 1966 (the cutoff is such a case. See also Walton Manufacturing Company, supra, fn. 3. date), cannot be assailed Higgins Industries, Inc, 150 NLRB 106, Strain 880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the rule was illegally motivated, discriminatorily en- forced, or enforced at all.5 I find that by maintaining rule 69(b) in its employee handbook since June 14, 1966, until its elimination in December 1966, Respondent violated Section 8(a)(1) of the Act. Respondent has not posted a Board notice advising its employees of their rights with respect to the illegal rule. But even if Respondent had totally complied with a Board order rather than merely taking the voluntary actions it did in this case after the charge was filed and the Region complained about the rule, it would not make the matter moot.6 The record also shows that the illegal rule is of long standing and succeeded an identical illegal rule which Respondent had earlier promised to eliminate. Re- gardless of how or why the rule reappeared in Respond- ent's employee handbook, this is an added consideration for invoking the rule that the mere discontinuance of an unlawful practice will not relieve an administrative agen- cy from adjucicating a pending charge particularly where the illegal practice may be resumed.7 Finally in this re- gard, the right of employees to solicit and distribute out- side of working hours, although on company property, is a basic right and any rule against it is "... presumed to be an unreasonable impediment to self-organization and therefore discriminatory .."8 Despite the actions Respondent has taken, it has never informed its em- ployees that they have a right to distribute union litera- ture in nonwork areas. The posting of a notice is an im- portant part of a Board order, for its purpose is to restore to employees the confidence in their right to freely engage in concerted activity. It is evident from the record that the Union is engaged in a campaign to organize Respondent's employees, and Respondent could conceivably return to its illegal practice unless restrained. On the basis of all the circumstances, I find that it would effectuate the policies of the Act to require Respondent to cease and desist from the illegal act and to post appropriate notices.9 2. The alleged enforcement of the no-distribution rule I have assumed for the purpose of the above discussion that rule 69(h) was not enforced, but, however, there is evidence that it was applied during the Union's organiza- tional campaign. On September 2, 1966, employees Dyer, Kee, and Bolen were starting to distribute union literature in the Company's employee parking lot during shift change when Personnel Director Carnell ap- proached and asked them to sign a printed form which read: "I will be responsible for any excess literature or hand bills that are left on Lexington Metal Products Com- 5 Walton Manufacturing Company, supra; Stoddard-Quirk Manufac- turing Company, supra, fn. 3; Strain Poultry Farms, Inc., supra; General Industries Electronics Company, 138 NLRB 1371. The coercive effect must be tested by the tendency of the conduct to inhibit the free exercise of employee rights under the Act, and so even if the rule was reissued in- nocently in November 1965 by Plant Manager Westover, as Respondent suggests, or never actually enforced, the conduct may still be prohibited by the Board. Exchange Parts Company, 131 NLRB 806, 812, affd. 375 U.S. 405; N.L.R B v. Lexington Chair Company, 361 F.2d 283, 286 (C.A. 4); N.L.R.B. v. LaSalle Steel Co., 178 F.2d 829,833-834 (C.A. 7); N.L.R.B. v. Kiekhaefer Corporation, 292 F.2d 130, 134 (C.A. 7); see also The Welsh Scientific Company, Inc. v N.L.R.B., 340 F.2d 199, 203 (C.A. 2); The Lion Knitting Mills Company, 160 NLRB 801, relied on by Respondent, appears to be factually different. There the Board said that the allegation that the rule was unlawfully adopted was not supported by the record and that "In the particular circumstances of this case, we are satisfied that neither the Respondent nor its employees viewed the rule as pany's parking lot." Employee Bolen signed the form and proceeded to distribute the literature. Bolen said that Car- nell gave him no indication of any disciplinary action if he did not sign the document, and Carnell testified without contradiction that he made no threats or warnings, but told Bolen that it was "company policy" to have the form executed. He said Bolen signed the form without objec- tion after he told him that the Respondent had a "form that we ask everybody to sign to the extent that they will pick up any excess literature left on the parking lot. We would appreciate if you would sign it, because we like to keep our grounds as clean as possible." It also appears that Respondent has been using a similar form since at least the summer of 1966 and has also required nonemployees, such as candidates for public office and merchants, to sign it. There is no question about Respondent's knowledge that the em- ployees were distributing union literature when Bolen was asked to sign the form, and it also appears that on at least one other occasion, August 3, 1966, employee Mof- fitt also was asked to sign an identical document. Carnell stated that the Company prepared a printed form because it had numerous requests to circularize employees from various sources. Carnell said that it was "company pol- icy" to have every one sign and agree to "pick up excess literature." Respondent contends that requiring employees to agree to pick up discarded union literature from the park- ing lot was not improper in the circumstances because there is no evidence that anyone was ever actually prohibited from distributing union literature, and the "clean-up" agreement was applied on a nondiscriminato- ry basis to all, employees and nonemployees alike. I find, however, that by placing a prior restraint on the right of employees to distribute union literature in the parking lot, Respondent violated Section 8(a)(1) of the Act for the following reasons: Respondent's equal treatment of nonemployees is ir- relevant because Respondent could legally post its premises against all outsiders, but employees have a statutory right to distribute union handbills in nonworking areas unless special circumstances are shown. The simple answer here is that Respondent has shown no special cir- cumstances, for merely to say that it wants to keep its lot clean is not a "special circumstance." The risk of litter is implicit in all distribution and an incident of ownership which all parking lot owners bear.10 Although there is no evidence that in a specific case an employee was forbidden to distribute literature unless he signed the document, the requirement that he sign first prohibiting Union campaign activities." If I understand this language, the General Counsel there alleged an illegal adoption of a rule which in reality did not exist. Cf. Waggoner Corporation, 162 NLRB 1161. 6 N.L.R.B. v. Mexia Textile Mills, Inc., 339 U.S. 563, 567. 7 Consolidated Edison Co. v. N.L.R.B., 305 U S. 197, 230; Cleveland Cliffs Iron Company, 133 F.2d 295, 300 (C.A. 6); G & W Electric Spe- ciality Company v. N.L.R.B., 360 F.2d 873 (C.A. 6). 8 Peyton Packing Company, Inc., 49 NLRB 828, 843-844, quoted with approval in Republic Aviation Corporation v. N L.R.B., 324 U.S. 793, 803. 8 See N.L.R.B. v. Express Publishing Company, 312 U.S 426, 438. 10 See General Industries Electronics Company, 138 NLRB 1371. In Republic Aviation Corp. v. N.L.R.B., 324 U.S. 793, the Court did not disturb the Board's finding in LeTourneau Company, 54 NLRB 1253, which was also before the Court, that littering had resulted from earlier distributions of literature in the Company's parking lot. LEXINGTON METAL PRODUCTS CO. 881 was implicit in the request and appears to be conceded by Carnell's testimony that it is "company policy" to require everyone to sign an undertaking to police the parking lot. Such a requirement appears to be tantamount to securing permission from Respondent to distribute at all, and even though such permission may not have been withheld in an actual case, this does not constitute a defense to the ex- istence of a rule against distribution or solicitation without company permission." - I am also of the opinion after considering, as the Board always does in these cases, the relative interests of the employer and the employees, that even if Respondent did not intend to prevent distribution or to discipline em- ployees who distributed without having first executed the agreement, its practice of confronting employees with a formal document agreement, for signature, which then it deposits in its files, is bound to have an inhibiting effect on the protected activities of those employees because it appears to single them out for special and formal atten- tion. Moreover this impediment could indicate to em- ployees generally that Respondent's asserted abandon- ment of its improper no-distribution rule is done grudgingly. The confusions and additional litigation which would be created if employers were permitted to insist that those who exercise their rights under the Act guarantee that the employer's property be left in the same condition as they found it is a relevant consideration. Questions will im- mediately arise as to whether an employer may discipline or discharge those who refuse to execute the instrument and distribute anyway, or sign the agreement and fail in their undertaking. In the latter case, if an employee were warned or disciplined because of the condition in which the parking lot and other nonworking areas were left, would the Board have to take evidence about how tidy or sterile these areas normally are and how nonemployees leave the parking lot after one of their distributions in order to decide whether employees who distribute union literature are being held to a higher standard: I find on the basis of these considerations, including the existence and history of the broad illegal no-solicitation and no-distribution rule, that by requiring or asking em- ployees to sign a document in which they undertake to police the parking lot after distributing union literature, Respondent engaged in an additional violation of Section 8(a)(1) of the Act. 3. Threats, promises , and creating surveillance Herchel Cary who works days, but there are also four maintenance men on the second shift under Pierce's direction who perform essentially the same kind of work as those on the first, such as making repairs to machinery or equipment. Pierce is not under the direction of the night-shift production foreman, and requests for service are made to Pierce and not directly to the men Pierce directs. It appears that Pierce normally works from a schedule laid out for him by Cary. Pierce usually appears at the plant before Cary leaves and, according to Westover, the two work out the schedule for the evening. Pierce said that if anything serious goes wrong he can call Cary at home. It is also a fact, however, that Pierce is responsible for getting the equipment back in operation if it breaks down on his shift. Although much of the work that Pierce is responsible for is scheduled, it is also true that he knows the abilities of his men and assigns them to tasks which fit their skills. He assigns work to them, tells them what to do, oversees the quality of their work, and some- times works along with them. He wears distinctive clothing, however, and does not carry a full set of tools like the four repairmen nor work with his hands as much as they do. Pierce is hourly rated, punches a timeclock, and is paid overtime. He is paid more than the men under him, and attends supervisory meetings, but it also appears that "leaders" do too. There is no evidence in the record that Pierce can hire, fire, discipline, reward, or has any of the other more important powers described in Section 2(11) of the Act, but, in addition to assigning employees to tasks, he also choses which employee may work overtime if itis needed. Respondent claims that Pierce is a "leader" not a "su- pervisor." It is evident that Pierce is low in the manage- ment group, but is also clear that four employees who repair expensive equipment look to him for assignments, instructions, and direction. In this area of "supervisor" there are many subtle gradations of authority and each case must turn on its own facts. It is well settled that Sec- tion 2(11)'s list of supervisory indicators is to be read in the disjunctive, but it is also necessary that there be true independence of judgment "in connection with" the powers listed in the section.12 If the exercise of some su- pervisory tasks are merely "routine" or perfunctory this does not raise a rank-and-file employee into the super- visory ranks. In my opinion, and I find, Pierce using inde- pendent judgment assigned work and responsibly the impression of directed the four employees under him and qualifies as The complaint alleged that Supervisors Pierce, Britt, and Jones made statements to employees which violated the Act, but there is a threshold question about Pierce's supervisory status under Section 2(11) of the Act. When the events in this case took place, Respondent had between 400 and 450 employees, including a second shift of approximately 100. Respondent's maintenance department, which, in Plant Manager Westover's words, does everything from cutting the grass to repairing plant machinery, is admittedly under the supervision of 11 Bauer Aluminum Company, 152 NLRB 1360, reversed sub nom. Republic Aluminum Company v. N.L.R.B., 374 F.2d 183 (C.A. 5), March 1, 1967, but the court accepted the Board's finding that whether permission would have been granted or not is immaterial if the rule is il- legal. supervisor under Section 2(11) of the Act.13 Marie Sumler was operating a press on the day shift in October 1966 when Pierce, who was apparently coming in to work on his shift, stopped and spoke to her. Sumler was wearing a union button and she said she pushed back her chair in order to show it to Pierce. She conceded that she began the conversation about the union button and her union sympathies by telling Pierce that he could now "see that [she] was on one side of the fence and [he] was on the other," but she hoped that he understood her side of the question, and that it would not affect their friendship.14 Pierce commented that he "wouldn't have 12 Ohio Power Company v. N.L R.B., 176 F.2d 385 (C.A 6), cert. denied 338 U S. 899. 13 General Electric Appliances Company, 119 NLRB 573. 14 Sumler said that she and Pierce were "dear friends." 882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thought that [she] would put the button on," but he added that it would have no bearing on their friendship. Sumter again asked him if he understood her "side," and he said he did, and walked away. According to Sumter, sometime later, Pierce returned and asked her to remove the union button because it would "do her no good" and she was "headed for trou- t ble." Sumter said she again asked Pierce to understand her position, but he "kept asking" her to remove the union button. Pierce's version of the first section of the above con- versation as recounted by Sumter is like hers, but he did not recall a second talk with her. He stated that he would not have noticed the union pin which Sumter wore if she had not called his attention to it, and he maintained that all that he told her was that he was "a little bit surprised" about the pin and didn't see what Sumter expected to get "out of it." He said he did not "caution" her about wear- ing the button. As related by Sumter, Pierce's statements in their first conversation were clearly innocuous, and although I credit Sumter as having the better recall of the other re- marks she said Pierce made when he returned, I find, in the circumstances here, that Pierce's statement was a per- sonal expression of opinion and not violative of Section 8(a)(1) of the Act. Sumter started the chain of events, even if, as I find happened, Pierce returned to talk with her again after she showed him the button. The second conversation might not have occurred but for her, and she conceded that Pierce said that her union views would have no affect on their longstanding friendship. If Pierce did "caution" Sumter as she said, it was the word of a minor supervisor and a "dear friend," and it was not bind- ing on the Respondent. The compalint also alleges that Respondent, by Super- visor Buford Jones, created the impression of surveil- lance of union meetings by telling an employee that he knew of her union activities, and any evidence to support this allegation must also be found in Sumler's testimony. She testified that she went to a union meeting during Oc- tober 1966 and told another employee about it when she came to work the next morning. Sometime during that same morning, Buford Jones said that he had heard that she "had been out and around.-I-5 Sumter said she had, and asked Jones what he meant, but he made no reply, and walked on. I find that Jones' remark, even if made, was too vague and equivocal to support a finding that the allegation of creating the impression of surveillance has been established by a preponderance of the evidence.is Respondent did not violate Section 8(a)(I) of the Act in this connection, as the complaint alleged. Employee Larry Lewis, an inspector, testified about a conversation with Supervisor James Britt in which Britt allegedly made a promise of benefits in violation of the Act. Lewis said, that, in October 1966, while he was wearing a union button, Britt told him "that he shouldn't be doing that, and [he] was a good worker and smart, and if [he] would take the button off and stop working for the Union and get [his] card back and tear it up that [he] ` This remark appears in the record at another point as, "1 hear that you get out in the rain " 16 Jones testified that he had never had a conversation with Sumter about going to a union meeting. " On May 1, 1966, Respondent filed a motion to strike a portion of General Counsel 's brief which refers to an alleged shift in Respondent's could do just anything that [he] wanted out there, that [he] was smart enough to do about anything." According to Lewis, his only response was that "he was undecided." Britt recalled a single conversation with Lewis about unions, but he said it took place after Christmas 1966 and that Lewis "called him over" to talk. He said Lewis told him that the employees at a nearby company were going to "get a union," but that he didn't think the union activity at Resppndent would amount to much. Britt said nothing and "just walked off and left" Lewis. Although Lewis could not recall who started the con- versation because "it was a long time ago," nevertheless, he stayed with the substance of his version under cross- examination, and, unlike Britt, I find him to have been a credible witness. Britt's story sounded contrived, and his disinterest- just walking off and leaving Lewis- a little difficult to believe. I find that Rspondent, by Supervisor Britt, promised an employee a reward if he would aban- don the Union. By such conduct, Respondent violated Section 8(a)(1) of the Act. B. The Discharge of Jerry Dyer 17 1. The facts Jerry Dyer, employed by Respondent for over 3 years and whose competency as a workman is unquestioned, was discharged by Respondent on November It, 1966, after a foreman saw him smoking in the men's room the day before during working hours. It appears that Dyer was active in the Union and Respondent knew it because he wore a union pin, distributed titerature,18 went to meetings, and signed some employees for the Union. General Counsel contends that discharging Dyer for "smoking" in the men's room was pretextual, for every- one smoked in the men's room and no one but Dyer got fired over it. Respondent, on the other hand, argues that it was not merely smoking that was involved, but that, in addition, Dyer spent excessive time in the men's room, refused to heed the instructions of his supervisor to change his ways, and was discharged as a consequence. Dyer was supervised by Ralph McPeake and Buford Jones. He testified that, sometime in October 1966, Jones "told" him about smoking in the restroom, but he told Jones that he wasn't the only employee doing it, and he "would quit when the other boys did." Jones, according to Dyer, and this is uncontradicted, replied that he would also remind the other employees about smoking, and he conceded that he smoked in the men's room himself. Dyer said Jones began the conversation by telling him that he had received a "complaint" about him, but he would not say who had complained. Dyer began to be careful about the amount of time he spent in the washroom, and also asked his fellow em- ployees if Jones had warned them, but he said they told him Jones had not. The day before Dyer was discharged he was admittedly seen in the men's room smoking a cigarette by Paul White, general foreman. Dyer testified that he entered the position regarding Dyer's discharge Upon consideration, the motion is hereby denied 11 Dyer was distributing union literature with Bolen on the day Person- nel Director Carnell asked them to sign the form about leaving literature on the parking lot, as described above. LEXINGTON METAL PRODUCTS CO. restroom at 3 p.m., washed his hands, lit a cigarette, used the urinal, and then saw White enter while he was at the stall. He said he finished relieving himself, extinguished the cigarette, and walked out. He claimed that there were three other employees present and smoking while he was in the men's room. At approximately 3:15 p.m. Supervisor McPeake asked Dyer if he had been smoking in the men's room again, and Dyer admitted that he had. He testified without contradiction that McPeake said "they have been on me again about it," and when Dyer protested that he "wasn't the only one" smoking, McPeake replied that he had "tried to tell them that but they wouldn't listen." Dyer told McPeake that he was going to find out why "they were doing it to [him] and nobody else" and left for White's office. When he got there he found Foreman Jones and Superintendent Belew, but not White, and he asked Belew "why he was making it hard on [him] and not others." Belew asked Dyer to wait outside, and in a short while, White and McPeake appeared and entered White's office. Shortly thereafter McPeake called Dyer in. Dyer again asked Belew why he and no one else was getting this kind of attention, and he agreed that Belew asked him if he had been warned before. He told Belew he had had a previous warning, and he said that Belew then said that since this was his second offense, he was suspended until the next day. Dyer protested to him that he was being discriminated against, promised to take his case to the Labor Board, and then left the plant. It is the Company's practice to suspend an employee for 24 hours before effecting his discharge in order to con- sider the case. Dyer came back to the plant on November 11, 1966, at 9:30 a.m., for his paycheck. He saw Pat Car- nell, personnel director, who told him that he didn't know what the final action in his case would be, but to come back at 3:15 p.m. Dyer did as instructed, and Carnell gave him a separation notice which reported the reason for his discharge as "Refusal to follow company rules." Dyer complained that the reason given was inaccurate, but Carnell pleaded ignorance and asked Dyer if he wanted to see Westover. Dyer accompanied Carnell to Westover's office where a conversation about his discharge took place. The record is not too clear about whether Carnell or Westover said it, but someone told Dyer that there was a company rule which covered his conduct and that he had been warned twice. Dyer protested that no one else had ever been warned for doing what he had done, and he conceded that Westover re- marked that he appeared to "want everyone else to change before [he] did." Again Dyer insisted that he was being singled out for special attention, and he talked about filing an unfair labor practice charge against the Company. Apparently the meeting terminated abruptly when Westover's telephone rang. The above account of the events preceding Dyer's discharge is his own, but it was amplified somewhat under cross-examination where he added that he had never heard of any employee having been warned because he II It was stipulated that a "number" of unnamed employees had been instructed not to spend excessive time in the restrooms when not on a break, but that no specific warning or explanation was given them about what would happen if they disobeyed the instruction. 2" On November 10, 1966, the head of inspectors told his men not to 883 spent too much time in the restroom, that he told Westover so, but Westover insisted that "25 others had been."19 He maintained that Jones' verbal warning of Oc- tober 31 was for "smoking in the rest room" and that Jones did not say "spending too much time in the rest room." He admitted that before Belew suspended him he told Belew that he "was aiming to smoke. As long as the other hands and the foremen smoked, I was aiming to smoke, too." He agreed that before he made that state- ment no one had said anything about suspending or discharging him. General Counsel also introduced additional evidence about the practice of smoking in the restrooms purporting to show that Dyer was treated differently than other em- ployees. Larry Lewis, whose testimony I have previously credited as against Supervisor Britt, said that he smokes in the restroom and has never been warned about it, but he candidly conceded that he knew that employees had been warned about spending excessive time in the restrooms, and that supervisors had told employees at a group meeting not to engage in the practice.20 Marie Sumler, also a credible witness, said that every- one who smokes, smokes in the restrooms and nothing happens to those who are "caught" smoking there. She said she doesn't use the restroom "just" for smoking, however. Leonard Bolen said Supervisor Jones warned him about going to the men's room to smoke and told him to get permission first. He said he has not asked for permis- sion and nothing has been done to him. Bolen, too, main- tained that he doesn't go to the restroom just to smoke, and he stated that he had heard that other employees had been warned about smoking in the restrooms. Jimmy Kee said he had received three warnings or reprimands for being away from his machine too long, but he is still employed.21 Kee also stated that "if they spend excessive time up there," employees are warned about their use of the restrooms, and he said he was aware that employees have spent "too much time" in the restrooms and that supervision had told "everybody" to stop it. He also conceded that "spending too much time in the rest rooms" is a "problem" in the plant. Robert Lee testified that he was "caught" smoking in the restroom by Jones and Britt, but nothing was said to him, and that even since Dyer's discharge he has been ob- served smoking. He added that he has never been told not to smoke in the restroom and knows no employee who has. Lee also said he had heard about employees having been warned because they spent excessive time in the restrooms, that he had also heard it was "a problem," and it was "general knowledge" that one should not spend too much time in the restrooms. Employee Delton Williams testified that he was warned about smoking in the restroom by Supervisor Kennedy who told him that White and Belew "gave him hell" because Williams had been seen doing it.22 Williams said he saw White and protested that he was "picking on" him. According to him, White said that was not the case because the other employees would be similarly in- spend excessive time in the inspection office Lewis is an inspector 21 As contrasted with Dyer who was fired 22 At another point Williams testified that Kennedy told him that "We are going to have to quit spending so much time in the rest room." 884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD structed. He added, however, that if he smoked he would also smoke in the men's room, and Williams could con- timie to do it because the Company did not intend to make a rule prohibiting it. The testimony of Respondent's witnesses is not much different from Dyer's except in regard to what Dyer was actually doing in the restroom. General Foreman White testified that because the Company's indirect labor costs were out of line in the summer and early fall of 1966, it tried to cut down the amount of time employees were spending away from their machines in the restrooms. Su- pervisors were told to talk with employees about it, and they did. White said he was responsible for the warning which Jones gave Dyer on October 31, 1966, because he saw Dyer in the washroom not using the facilities, but just smoking a cigarette. He told Jones about it who said he would find out if Dyer was on his regular break. Dyer wasn't, and Jones warned him about being in the washroom. White also saw Dyer in the washroom on November 10, 1966, and again, according to White, he was standing there smoking, but not using the urinal. White reported that incident to Superintendent Belew who asked if there were any other persons present at the time. It appeared that Supervisor Britt had been present, so Belew sent for him, and he confirmed White's story. White went to talk with Dyer's supervisors, Jones and McPeake, to find out if Dyer was on his rest period when White saw him smok- ing. Apparently he found McPeake first, and McPeake told him that Dyer was not on his break at the time.23 Jones appeared on the scene, and he was told about Dyer. Belew, White, and Jones went to White's office to discuss Dyer. Dyer appeared and asked, "Why are you picking on me." Belew denied that Dyer was being "picked on," and asked him if he had not been in the restroom "standing there smoking." Dyer did not deny it, and admitted that he had been spoken to before about it. At that point Belew asked him if he were refusing to fol- low his foreman's instructions, and Dyer answered that "as long as the supervisors and everybody stands in there and smokes I will too."24 Nothing had been said about discharging Dyer to that point, said White, but when Dyer made the statement about what he intended to do, Belew suspended him for 24 hours and said a decision would be made about him during that time. Supervisor Ralph McPeak's version was like White's. He told White and Belew that Dyer was not on a rest period when White saw him in the washroom. When White, Jones, and Belew started for White's office, Mc- Peake found Dyer and started to tell him about "catching him in the wash room" but Dyer "flew" into White's of- fice with McPeake trailing him. He heard Dyer complain about being "picked on" and he otherwise corroborated White's testimony about what was said in White's office. Buford Jones gave practically the same account of the events leading up to Dyer's discharge as did the other wit- nesses for the Company, and he contradicted Dyer only in regard to the reason for the October 31 warning. Un- like Dyer, he said he warned him about "spending too 23 MePeake was the person who told Dyer that there had been another complaint about him, and he must have done it within minutes of this con- versation with White. 14 In rebuttal, Dyer testified that he was not told that he was in error for "failure to follow a foreman's reasonable instructions" during the November 10 meeting in White's office. much time in the rest room" and made a record of it which is in evidence. This distinction between " smoking" in the restroom and "spending too much time in the rest room" is relied upon heavily by Respondent in its defense, and I credit Jones' version. Jones also said that when he talked to Dyer about White's complaint that he was in the washroom on October 31, Dyer insisted that he couldn't understand why he had to stop so long as su- pervisors and other employees used the room for smok- ing. Jones asked Dyer if the other employees worked in his department, and told him it was no concern of his when he said they did not. James Britt was in the men's room on November 10 when Dyer was seen by White. He said that employees Davis and Rhodes were also present, and that he, Davis, and Rhodes were all using the urinals, but Dyer was "standing in the middle of the floor" smoking.25 White en- tered and discussed business with Britt, and when he and Britt left, Dyer was still in the restroom smoking a cigarette. Britt reported what he had seen to Belew when White asked him to later that afternoon. With respect to the practice of smoking in the men's room, Britt said he had seen employees smoking there before and after Dyer was discharged, but he maintained that these smoking employees were always relieving themselves at the time. Joe Belew's testimony was in accord with White's ver- sion of Dyer's suspension and discharge. He said White reported that he had seen Dyer standing in the restroom "killing time and smoking." Belew said Dyer had been warned about this before, so he and White began to "discuss the case." The two officials decided to make an investigation and they did, as described in White's testimony. While they were in White's office waiting for McPeake to return, Dyer came in "a little hostile," and asked "what are you trying to do to me ...." Belew asked Dyer about other warnings and then told him that since he admitted having been warned before, he was, therefore, refusing to follow his foreman's instructions. When Dyer responded that he would continue his prac- tice until others quit "standing around and smoking," Belew suspended him pending final action on the next day. He said that, before Dyer said he would continue to smoke, ther had been no managment discussion about fir- ing him. After he suspended Dyer, Belew reported the incident to Plant Manager Westover. He recommended Dyer's discharge, but Westover made the final decision, he said. Westover first learned about Dyer's difficulties during the afternoon of November 10, he said, when Belew told him that "he had a man that had refused to quit smoking in the restroom until the supervisors and everybody else did." Concerned about employees "wasting time in general," Westover said he discussed the Dyer matter in detail with Belew, that Belew told him about Dyer's earli- er warning, and recommended his discharge because he refused to reform. Westover indicated that he would go along with Belew's recommendation, but he was not posi- tive that he made the final decision then or the next morn- ing. In any case, he told Carnell, the personnel director, 25 Employer Norman Davis corroborated Britt. He testified that when he entered the restroom Dyer was not using the facilities, but was smoking a cigarette, and when he left, Dyer was still there smoking. He also said Paul White "stuck his head in" while he and Britt were there but he did- not come in. I find that Davis gave a credible account of what he saw. LEXINGTON METAL PRODUCTS CO. to make out Dyer's separation notice and what to enter on it as the reason for Dyer's discharge. He stated that the, reason for discharge was "refusal to follow a foreman's reasonable instructions, the instructions being not to goof off or spend excessive time in the restroom smoking while not on break ...... Later that afternoon, Westover met with Dyer and Car- nell. He agreed that Dyer accused him of treating him un- fairly but he also said that he told Dyer that "in a sense [he] had refused to follow instructions." Dyer responded that employees and supervisors also smoked in the restroom and said he would not stop until they did.26 Westover commented that it seemed to him that Dyer wanted to be the last to change. After some comments by Dyer about unfair treatment, the meeting was abruptly terminated when the telephone rang, and Dyer depar- ted.27 To meet General Counsel's evidence and contention that employees smoke in the restrooms without company disapproval, Respondent introduced evidence to show that it's not the smoking which is prohibited, it's the prac- tice of spending too much time in the washrooms, smok- ing or resting, while not on regular break periods. Briefly stated, on the basis of this evidence, I find as follows: Employeees have been warned by their supervisors, in- dividually and in groups, not to stand around the restrooms smoking or talking.28 Employees have been given verbal warnings because they spent "too much time in the wash room" during September 1966.29 An em- ployee was discharged on or about October 31, 1966, because he spent too much time in the restroom and his separation slip contained the notation "repeated failure to follow company rules."30 It also appears that Respondent discharged four other employees during the last half of 1966 for offenses described as "Refusal to Follow Com- pany Rules," "Leaving Job During Working Hours Without Permission or Reasonable Excuse," and "Failure to Follow Foreman's Reasonable Instruc- tions." 31 2. Analysis, additional findings, and conclusions in Dyer's case Respondent was concerned during the summer and fall of 1966 about employees spending too much time away from their jobs. Supervisors warned employees about it and specifically cautioned them not to spend excessive time in the restrooms and other nonwork areas. The testimony of management's witnesses to this effect was confirmed by the testimony of employees themselves, in- cluding those called as witnesses by the General Counsel. On October 31, 1966, Supervisor Jones, prodded per- haps by his superior, White, reprimanded Dyer for spend- ing time in the restroom. Dyer admitted that Jones spoke to him and that he told Jones he would "quit" when other employees did. Jones said that he warned Dyer about "spending too much time in the rest room," but Dyer testified that Jones "told" him about "smoking in the rest 26 In rebuttal, Dyer said that Westover did not say that he had violated a company rule and did not actually give him a reason for his discharge. 27 Carnell said he was not involved in the decision to discharge Dyer, but Westover gave him instructions to prepare Dyer's termination slip and told him what to state on it. He also confirmed Westover's testimony that Westover told Dyer that he understood that Dyer was refusing to follow his foreman's reasonable instructions. When Dyer said that he was going 885 room," and it is here, because of the imprecise use of lan- guage, that the confusion is engendered and where Respondent's motive becomes suspect if Dyer's version is taken literally. There is no rule against smoking in the restrooms; everyone who smokes does so when they use the restrooms, and if Respondent discharged Dyer mere- ly for "smoking" while using the restroom, it would strongly indicate that Respondent had some other reason for terminating him. In my opinion, and I find, Respondent validly distin- guishes between spending too much time in the restrooms and using them for legitimate purposes whether or not one chooses to smoke at the time. I also find that em- ployees understood this distinction, and that when, on two occasions, Respondent found Dyer in the restroom smoking when he was not on a rest period and warned him about it, the warnings were based on Respondent's belief that he was spending too much time in the restroom smoking. White saw Dyer standing in the men's room smoking and not using its facilities on November 10 and reported it to Belew. Although it may be, and I have little doubt, that other employees have loitered and still loiter in Respondent's restrooms, smoking or talking, the record shows, nevertheless, that Respondent has tried to stop he practice, that other employees have been warned about it and at least one discharged because of it. In these circumstances, White's immediate complaint to Belew about Dyer cannot be held unreasonable. When Dyer was first spoken to by Jones about "smok- ing" in the restroom, he complained that other employees did the same and said he wouldn't stop unless the others did. While White, Belew, and Jones were discussing Dyer's second offense he entered their meeting and ac- cused them of unfairly singling him out. He again made it clear, however, that he did not intend to change his prac- tice unless employees and supervisors changed theirs. Here again, it seems to me, the real meaning of the con- versation as understood by all was not merely "smoking in the rest room," but taking a few minutes extra away from work. As much as it would be clearly pretextuous to discharge an employee for smoking in the men's room when there is no rule against it, when everybody does it, and Respondent even supplies ash trays, it would also be totally irrational for three or more company officials to predicate and rationalize their actions on such a ground. While harsh treatment or a patently false ground for discharge is evidence of pretext, nevertheless, the irra- tionality in relying on "smoking" alone when, as found above, there is a well-understood distinction among em- ployees between just "smoking" and "spending excessive time" in the restroom, smoking or not, is a good indica- tion that Respondent's officials reprimanded Dyer because he appeared to be spending excess time in the restroom and did not make an issue about "smoking" only. I credit Belew's testimony that White reported to him that Dyer was in the restroom "killing time and smoking" to smoke as long as others did, Westover said he had no "choice but to let him go." 18 Credited testimony of employees Davis, Wood, and Scott and Super- visor Jones. 21 Uncontradicted and credited testimony of Supervisor McPeake. 30 Uncontradicted and credited testimony of Superintendent Belew. 31 Resp. Exh. 10. 308-926 0-70-57 886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and that when Dyer was confronted with the charge when he entered the Belew-White-Jones meeting, Dyer said he would not change his practice until employees and super- visors stopped "standing around and smoking" in the restrooms. Since, in the light of these findings, Dyer was not being singled out for special attention and treated dif- ferently than other employees, Belew's decision to suspend him for 24 hours, after Dyer made the above statement, does not seem specious. When Dyer met with Westover the next day he again said he would stop ":smoking" in the restroom when the others did. Westover, based on the information he had received from Belew, had already instructed Carnell to terminate Dyer for "refusal to follow a foreman's reasonable instructions." In his meeting with Dyer, he noted that it seemed to him that Dyer wanted to be the "last to change" and said he had no choice but to let him go in view of his position. These remarks are consonant with Respondent's basic position that Dyer was discharged for spending excessive time in the restroom and with Westover's testimony that Belew told him that "he had a man that had refused to quit smoking in the rest room until everybody else did." Westover's instruction to Carnell, therefore, to mark Dyer's separation slip "refusal to follow a foreman's reasonable instructions" seems normal, and I credit his testimony that the "in- structions" he was relying on were "not to goof off or spend excessive time in the rest room smoking while not on break." Dyer was a competent worker with 3 or more years of service with Respondent. Jones and McPeake had nothing unfavorable to say about his work or his habits, and both appeared to have been tolerant about his visits to the restroom. Jones, told him, for example, that he, too, liked tc have a smoke when he went to the restroom, and McPeake told him that when White complained to him about finding Dyer smoking in the restroom, he explained that Dyer was not the only one guilty of that practice. I also note that Respondent's handling of the Dyer case on November 10 seems elaborate. Four supervisors were in- volved in it before it even got to Westover. In addition, White reported up the line to Belew about Dyer, not down to Jones, Dyer's supervisor, and Belew sent White to get Britt to confirm White's story. It seems that, at that stage of the proceeding, Dyer was, getting an excess of in- dustrial due process for just loafing twice, and that it was something that Jones could have handled alone. On the other hand, it is clear that Dyer confronted Belew and the others before a final decision was made in his case and in- sisted that he would make no change in his smoking habits. Whether Respondent would have warned, disciplined, or discharge him if he had talked otherwise is a matter of pure speculation, but his adamant attitude weakens any inference in his favor which might be drawn from Respondent's high-level handling of his case. Finally, although there is some, there is very little evidence of union animus in this record. Respondent had an illegal no-solicitation no-distribution rule, and one su- pervisor made a promise of benefit. Westover, at certain employee meetings not definitely fixed in time, indicated that employees did not need a union, but what he said ex- actly is extremely unclear. Without such evidence, I find the oddities whih appear in Respondent's handling of Dyer insufficient to overcome the positive evidence of Respondent's concern about nonproductive paid time, its efforts to do something about it, including warning Dyer and others, and Dyer's nonconciliatory attitude. I find and conclude that General Counsel had not established by a preponderance of the evidence that Respondent discharged Dyer in violation of Section 8(a)(1) and (3) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMER The activities of the Respondent set forth in section III, above, occurring in connection with its operations set forth in section 1, above, have a close, intimate, and sub- stantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burden- ing and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that Respondent had engaged in certain unfair labor practices, it will be recommended that Respondent cease and desist therefrom, and from like or related conduct, and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By maintaining and enforcing a rule prohibiting em- ployees from soliciting in connection with union activities during their nonworking time or from distributing litera- ture on behalf of any labor organization during nonwork- ing time in nonworking areas of Respondent's plant, and by promising an employee a reward if he would abandon his union activities, Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act and thereby committed unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. Respondent did not discharge Jerry Dyer in viola- tion of Section 8(a)(3) of the Act or engage in any other unfair labor practices except as found herein. 5. The aforesaid unfair labor practices are unfair prac- tices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the above findings of fact and conclu- sions of law, and upon the entire record in the case, it is recommended that Lexington Metal Products Company, Division of Ferro Manufacturing Corporation, its of- ficers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Maintaining or enforcing any rule which prohibits employees from engaging in solicitation in connection with union activities during their nonworking hours on Respondent's premises or which prohibits employees from distributing union literature during their nonworking time in nonworking areas of company property. (b) Promising employees benefits on condition that they give up their union activities. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their LEXINGTON METAL PRODUCTS CO. 887 right to self-organization, to bargain collectively through representatives of their own choosing, to engage in con- certed activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action which will ef- fectuate the policies of the Act: (a) Post in conspicuous places at its plant in Lexing- ton, Tennessee, including all places where notices to em- ployees are customarily posted, copies of the attached notice marked "Appendix."32 Copies of said notice, to be furnished by the Regional Director for Region 26, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and maintained by it for 60 consecutive days thereafter. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify said Regional Director, in writing, within 20 days from receipt of this Decision, what steps Respond- ent has taken to comply herewith.33 32 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order " 33 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respon- dent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our em- ployees that: WE WILL NOT maintain vi enforce any rule prohibiting our employees , when they are on non- working time , from distributing union literature in be- half of any labor organization in nonworking areas of our property. WE WILL NOT maintain or enforce any rule prohibiting our employee, during nonworking time, from otherwise soliciting their fellow employees to join or support United Steelworkers of America, AFL-CIO, or any other labor organization. WE WILL NOT promise employees benefits on con- dition that they give up their union activities. WE WILL NOT in any like or related manner inter- fere with, restrain, or coerce our employees in the ex- ercise of the right to self-organization , or form labor organizations, to join or assist any labor organiza- tion, to bargain collectively through representatives of their own choosing, and to engage in other con- certed activities for the purpose of collective bargain- ing or other mutual aid or protection, or to refrain from any or all such activities. LEXINGTON METAL PRODUCTS COMPANY, DIVI- SION OF FERRO MANUFAC- TURING CORPORATION (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 746 Federal Office Building, 167 N. Main Street, Memphis, Tennes- see 38103, Telephone 534-3161.