Titanium Metals Corp.

National Labor Relations Board - Board Decisions

Sep 30, 2003

340 N.L.R.B. 766 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 766
Titanium Metals Corporation and David W.
Smallwood. Case 28–CA–15910
September 30, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS
LIEBMAN AND WALSH
On March 30, 2001, Administrative Law Judge John J.
McCarrick issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General
Counsel filed an answering brief and limited cross-
exceptions and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions ex-
cept as set forth below and adopts the recommended Or-
der as modified as set forth in full below.1
1. The judge found that the Respondent violated Sec-
tion 8(a)(1) of the Act by taking the following actions:
(1) on about May 25, 1999,2 issuing a written warning to
the Charging Party, David W. Smallwood, allegedly for
poor work performance and failing to cooperate in the
related investigation, distributing a newsletter, and en-
couraging employees to call him during working hours;
(2) on about May 26, suspending, and later discharging
Smallwood for distributing the newsletter; (3) on about
May 26, denying Smallwood’s request for union repre-
sentation during an interview regarding the May 25
warning; and (4) since about May 25, maintaining and
enforcing an overly broad no-solicitation/no-distribution
rule. We adopt the judge’s findings and conclusions re-
garding these matters for the reasons set forth in his deci-
sion.
2. The judge also found it inappropriate to defer to an
agreement between the Respondent and the Union pur-
porting to settle Smallwood’s grievance over his dis-
charge. We agree that deferral to the agreement is not
appropriate, but only for the reasons explained below.
Facts
The Respondent and the United Steelworkers of Amer-
ica, Local 4856, AFL–CIO (the Union) were parties to a
collective-bargaining agreement, in effect from 1996
through 2000, that covered production and maintenance
employees. Smallwood was employed by the Respon-

1 We modify the judge’s recommended Order and notice consistent
with our decisions in Ishikawa Gasket America, Inc., 337 NLRB 175
(2001), and Ferguson Electric Co., 335 NLRB 142 (2001), to conform
more closely to the Board’s usual remedial provisions.
2 All dates hereafter are 1999 unless otherwise indicated.
dent as a furnace operator, a classification included in the
bargaining unit.
On May 26, the Respondent notified Smallwood that
he was suspended, pending termination for publishing
and distributing a newsletter. Smallwood published this
newsletter on his own time, using his own resources and
equipment, often with input from employees, but inde-
pendent of the Union. As described by the judge, the
newsletter addressed wages, hours, and working condi-
tions, and was critical of the Respondent.3 Smallwood
distributed the newsletters by placing them in the union
mailbox, which was not located on the Respondent’s
premises, and to employees at their home addresses.
On June 8, the Respondent converted Smallwood’s
suspension to a discharge, effective May 26. Smallwood
immediately filed a grievance alleging that his discharge
was unjust and in violation of several articles of the col-
lective-bargaining agreement. On June 23, Smallwood
attended a third-step grievance meeting, which did not
resolve the grievance. Smallwood was never notified of
any further meetings regarding his grievance.
Unbeknownst to Smallwood, the Union entered into a
written agreement with the Respondent regarding his
grievance on February 15, 2000. Smallwood received
nothing by way of relief under the agreement. The fol-
lowing is the full text of the agreement, which is entitled
a “Letter of Understanding:”

This will document our understanding with respect to
grievance 99-48. Mr. Smallwood was not discharged
for engaging in protected activities under the NLRA.
The Company recognizes the Union’s rights to com-
municate with represented employees, to post notices
and other related Union materials on bulletin boards as
outlined in the collective bargaining agreement, and to
engage in all other legally protected rights and activi-
ties, including, but not necessarily limited to, the
NLRA. Again, the company did not terminate Mr.
Smallwood for engaging in activities protected under
the NLRA or OSHA. The Company’s reasons for dis-
charging included issues such as insubordination, inap-
propriate conduct toward the company, ongoing and
costly workmanship related infractions, providing mis-
leading and inaccurate information related to melting
investigations, etc.

By letter dated March 8, 2000, the Union notified
Smallwood that it would take no further action on his
3 Having examined copies of several editions of the newsletter that
are in evidence, including the one distributed around May 26, we agree
with the judge that the newsletter was not so misleading, inaccurate, or
reckless, or otherwise outside the bounds of permissible speech, to
cause Smallwood to lose the Act’s protection.
340 NLRB No. 88
TITANIUM METALS CORP. 767
grievance and would not proceed to arbitration. The let-
ter did not mention the “Letter of Understanding.” In
fact, Smallwood did not learn about the existence of the
agreement until a copy was made available to him by the
General Counsel during hearing preparation in January
2001.
Analysis
The Board will defer to an arbitrator’s award where the
proceedings (1) appear to have been fair and regular; (2)
all parties have agreed to be bound; and (3) the decision
of the arbitrator is not clearly repugnant to the purposes
and policies of the Act. Spielberg Mfg. Co., 112 NLRB
1080, 1082 (1955). In Alpha Beta Co., 273 NLRB 1546
(1985), enfd. sub nom. Mahon v. NLRB, 808 F.2d 1342
(9th Cir. 1987), the Board extended the deferral princi-
ples of Spielberg to settlements negotiated by parties to a
grievance-arbitration process.
Applying these principles, the judge found deferral to
the “Letter of Understanding” inappropriate, because he
found that it was clearly repugnant to the purposes and
policies of the Act. Thus, he found that the agreement
failed to satisfy the third Spielberg factor. We agree that
deferral is inappropriate, but we do so only for the fol-
lowing reasons.
The Board has held that a union may legitimately settle
a grievance over the objection of the grievant. The
Board will defer to such a settlement, provided that the
Spielberg deferral standards are satisfied. Postal Service,
300 NLRB 196 (1990). We assume, without deciding,
that the “Letter of Understanding” was a settlement
agreement subject to analysis under the Spielberg stan-
dard, because it purported to resolve Smallwood’s griev-
ance. We find, however, under all the circumstances,
that the process that resulted in the “Letter of Under-
standing” was not fair and regular and, accordingly,
failed to satisfy the standard for deferral.
Not only was the agreement reached without
Smallwood’s participation or his agreement to be bound
by it, the existence of the agreement was never disclosed
to him by the Union or the Respondent. Smallwood only
became aware of it when, during preparation for the
hearing in this case, the General Counsel made a copy
available to him. Moreover, although the “Letter of Un-
derstanding” recites several reasons for Smallwood’s
discharge—including “insubordination, inappropriate
conduct toward the company . . . [and] providing mis-
leading and inaccurate information”—these reasons were
not the explanation given to Smallwood when he was
discharged. In the absence of any explanation from the
Respondent or the Union for this deviation, the “Letter of
Understanding” appears to be an attempt to disguise the
real reason for the discharge: Smallwood’s protected,
concerted activity of distributing a newsletter that ad-
dressed employment conditions and employment-related
matters.
Because, under these circumstances, the “Letter of
Understanding” does not satisfy the Spielberg standard
of fairness and regularity, we decline to defer to it.
ORDER
The Respondent, Titanium Metals Corporation, Hen-
derson, Nevada, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Maintaining and enforcing an overly broad no-
solicitation/no-distribution work rule.
(b) Failing to honor employees’ requests for union rep-
resentation.
(c) Warning, interrogating, suspending, or discharging
employees for engaging in activity protected by Section
7 of the Act.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
David Smallwood reinstatement to his former position
or, if his position no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights or privileges previously enjoyed.
(b) Make David Smallwood whole for any loss of
earnings and other benefits he may have suffered by rea-
son of the Respondent’s unlawful discharge, in the man-
ner set forth in the remedy section of this decision.
(c) Within 14 days from the date of this Order, for-
mally rescind in writing its overly broad no-
solicitation/no-distribution rule and post notice that this
has been done.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful warning, sus-
pension, or discharge of David Smallwood and notify
him in writing within 3 days thereafter that this has been
done and that the unlawful employment actions will not
be used against him in any way.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 768
(f) Within 14 days after service by the Region, post at
its Henderson, Nevada facility copies of the attached
notice marked “Appendix.”4 Copies of the notice, on
forms provided by the Regional Director for Region 28,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent immediately
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 the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since April 2, 1999.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT discharge or otherwise discriminate
against any of you for engaging in activities protected by
Section 7 of the Act.
WE WILL NOT coercively question you about your
activities protected by Section 7 of the Act.

4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
WE WILL NOT maintain or enforce an overly broad
no-solicitation/no-distribution rule.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL, within 14 days of the Board’s order, offer
David Smallwood full reinstatement to his former job or,
if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
WE WILL make David Smallwood whole for any loss
of earnings and other benefits resulting from his dis-
charge, plus interest.
WE WILL within 14 days from the date of this Order,
formally rescind in writing its overly broad no-
solicitation/no-distribution rule and post notice that this
has been done.
WE WILL, within 14 days of the Board’s Order, re-
move from our files any reference to the unlawful warn-
ing, suspension, and discharge of David Smallwood, and
WE WILL, within 3 days thereafter, notify him in writ-
ing that this has been done and that the warning, suspen-
sion, and discharge will not be used against him in any
way.
TITANIUM METALS CORPORATION

Nathan W. Albright, Esq. and Brian P. Kalmaer, Esq., for the
General Counsel.
James Winkler, Esq. (Hicks and Walt), of Las Vegas, Nevada,
for Respondent.
DECISION
STATEMENT OF THE CASE
JOHN J. MCCARRICK, Administrative Law Judge. This
case was tried in Las Vegas, Nevada, on January 16–19, 2001.
The original charge was filed by David Smallwood
(Smallwood) on July 2, 1999. Smallwood filed an amended
charge on August 9, 2000.1 The Regional Director for Region
28 of the National Labor Relations Board (the Board) issued a
complaint on August 24, 2000. The complaint was amended at
the hearing. The complaint alleges that Respondent violated
Section 8(a)(1) and (3) of the National Labor Relations Act2
(the Act) by warning, suspending, and discharging Smallwood
because he published a newsletter dealing with wages, hours,
and working conditions of Respondent’s employees. The com-
plaint also alleges that Respondent violated Section 8(a)(1) of
the Act by denying Smallwood’s request to be represented by
the Union, by promulgating and enforcing an overly broad no-
solicitation/no-distribution rule and by interrogating Smallwood
concerning his protected concerted activity. Respondent filed
timely answers to the complaint and denied all wrongdoing.
Respondent asserts as affirmative defenses that the Board
1 All dates herein shall be 1998 unless othewise stated.
2 29 U.S.C. § 151 et seq.
TITANIUM METALS CORP. 769
should have deferred to the grievance arbitration procedure and
that Smallwood’s discharge was justified due to the defama-
tory, disparaging, and disloyal nature of his publication.
The parties have been afforded a full opportunity to appear,
to introduce relevant evidence, to examine and cross-examine
witnesses, and to file briefs. On the entire record, including my
observation of the demeanor of the witnesses, and after consid-
ering the briefs filed by the parties, I make the following.
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Delaware corporation, with an office and
place of business located in Henderson, Nevada, that is engaged
in the manufacture of metals and where in the 12 months pre-
ceding the filing of the original charge, it annually purchased
and received goods valued in excess of $50,000 directly from
points outside the State of Nevada. The Respondent admits and
I find that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
In addition Respondent admits and I find that the United
Steelworkers of America Local 4856, AFL–CIO (the Union) is
a labor organization within the meaning of Section 2(5) of the
Act.
II. ISSUES
1. Did Respondent violate Section 8(a)(1) and (3) by dis-
charging Smallwood?
2. Did Respondent violate Section 8(a)(1) and (3) by warn-
ing and suspending Smallwood?
3. Were Smallwood’s publications disloyal and disparaging?
4. Did Respondent violate Section 8(a)(1) by promulgating
and enforcing an overly broad no-solicitation/no-distribution
rule?
5. Did Respondent violate Section 8(a)(1) by interrogating
Smallwood concerning his protected concerted activity?
6. Did Respondent violate Section 8(a)(1) by refusing
Smallwood’s request for union representation?
7. Should the Board defer to the grievance arbitration proce-
dure?
III. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent is engaged in the fabrication of titanium metal
ingots at its Henderson, Nevada facility. Alan Gines (Gines)
was Respondent’s employee relations supervisor, Vinoo Kam-
dar (Kamdar) was Respondent’s melt division supervisor, Jim
Stanley (Stanley) was Respondent’s melt shop foreman, and
Sarp Sezar (Sezar) was a foreman in the melt department. Ad-
ditionally, Loren Taylor (Taylor) was the human resources
manager for Respondent. Billy Hand (Hand) was the union
president and Robert Hunt (Hunt) was the Union’s grievance
representative for the Respondent’s melt division.
Smallwood began working for Respondent during a strike at
the Henderson plant on July 11, 1994, and was terminated on
May 26, 1999, for publication and distribution of a newsletter.
Smallwood was employed in the melt department as a furnace
operator from October 1996 until he was terminated. There
was a collective-bargaining agreement in effect between Re-
spondent and the Union that covered production and mainte-
nance employees. In addition to the collective-bargaining
agreement, Respondent maintained an employee handbook that
contained plant rules and regulations which remained in effect
throughout Smallwood’s employment. Respondent’s plant
rules and regulations contain, among other things, rules regard-
ing possession of unauthorized materials and unauthorized
activities.
B. The Newsletters
From May through November 1997 and again in late March
and May 1999, independent of the Union, Smallwood pub-
lished a newsletter called the “Titanium Times Newsletter,” the
“Titanium Times,” and the “Tungsten Times” (newsletter). It
was distributed to about 20 of Respondent’s melt department
employees at their home addresses and to the Union at the Un-
ion’s office. While there is no evidence that Smallwood ever
distributed the newsletter at work, it is clear that the newsletter
was widely read and circulated in the melt department. The
newsletter was usually about six pages long and contained arti-
cles of general interest as well as those dealing with wages,
hours, and working conditions at the Henderson facility, many
of which were critical of supervisors and Respondent’s labor-
management policies. Many of Smallwood’s coworkers in the
melt department contributed information for the articles in each
edition of the newsletter and many employees discussed the
issues with each other and with Smallwood before and after
they appeared in articles in the newsletter. The contents of the
newsletters are summarized below.
The May 1997 newsletter contained stories about safety is-
sues, the poor quality of coveralls, an innocuous article about a
gay rodeo, and an alleged error by Respondent in shipping de-
fective ingots to a customer in France and the potential for this
error to adversely affect the employees’ profit-sharing plan
provided by Respondent.
The June 1997 newsletter included articles about a conflict
between Supervisor Stanley and an employee that resulted in
charges the employee filed against Stanley through the collec-
tive-bargaining agreement; the lack of adequate coveralls sup-
plied by Respondent; safety; a labor management committee
and its effect on employees’ workload; and an article critical of
Supervisor Kamdar’s relations with employees.
The July 1997 issue of the newsletter offered, among others,
the following items: a story concerning the discipline of an
employee in which Smallwood characterizes the discipline as a
witch hunt and suggests Respondent’s leadership is “crap”; an
article alleging Respondent was charged with price fixing and
states there is evidence of fraud by supervisors and foremen;3
articles dealing with safety, tools, paperwork, and coveralls;
and a story about a dispute between a foreman and an employee
dealing with working conditions in which Smallwood refers to
Respondent’s “piss poor leadership,” supervisors who have a
“clear and present bias” towards certain employees and a final
conclusion that management’s credibility is “in the toilet.”

3 Respondent offered no evidence denying the truth of this allega-
tion.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 770
The August 1997 newsletter had an article dealing with fraud
in production records, a story referring to Supervisor Vinoo
Kamdar as “Voodoo Commissar” and an item that described
Supervisor Pat Dressler, known by his nickname, the Catfish,
as “just a bad foreman.” In that story an employee is quoted as
stating, “I’m about to give ole Catfish flying lessons off the
back porch if he keeps this up.” Specifically, the column states
that Foreman Pat Dressler is not allowing employees to take
their breaks every 2 hours as specified in the collective-
bargaining agreement. The story also makes reference to the
clause in the collective-bargaining agreement that addresses
times in which breaks are taken. There were also items about
safety, production, working conditions, and coveralls.
In the September 1997 edition, the newsletter had an article
about a new African-American supervisor, a piece concerning
Respondent’s alleged attempt to suppress the newsletter that
Smallwood compared to Soviet and Fascist attempts to sup-
press the truth. Employee Phillips contributed to a column
about safety, entitled “Close Call on the Ingot Blaster.”
Therein, Smallwood discussed an incident where a cable
snapped on a piece of equipment at Respondent’s facility. The
article states that a maintenance employee indicated that the
cable had not been replaced in 3 years and questions whether
Respondent had even inspected the cable. There were also
stories about overtime and tools.
The October 1997 newsletter contained a tongue in cheek at-
tempt at humor concerning a forklift accident. Smallwood said
that callers attributed the accident to “Voodoo Kamdar who got
into some bad ginseng tea . . . . Seeing double, Voodoo
mounted the forklift instead of the golf cart and gave it the gas.
Dazed and disoriented, Voodoo crawled to his office only to
wake up with a severe hangover.” There was a story about
Pauline Vincent, a member of Respondent’s management, and
her dealings with the grievance procedure. In this article
Smallwood states, “People close to the situation in the lab say
that Pauline must be suffering from a form of schizophrenia.”
Union President Hand contributed to the article appearing on
the first page of the October 1997 newsletter. The story dis-
cussed the potential decrease of tariffs imposed on foreign pro-
ducers of titanium sponge. According to the top of the third
column on the second page of this newsletter, Hand, a unit
employee, told Smallwood that Respondent’s employees should
write letters to their senators indicating that reduced tariffs
could jeopardize their jobs. Hand also contributed to the article
on the third page of the October 1997 newsletter. This column
discusses, among other things, safety when operating forklifts.
The story on page four of this newsletter is about the Union and
Respondent. The article discussed the discipline of unit em-
ployee Kevin Kersey. Kersey was disciplined for allegedly
being out of his work area, when he was actually working on
union business.
In the November 1997 edition, Smallwood wrote an article
that accused Respondent of wasting money and adversely ef-
fecting the employees’ profit-sharing plan. Another story dis-
cussed safety issues. There was a column that contained a dis-
cussion on the lack of proper heating in the press area. Article
13.20 of the collective-bargaining agreement, mentioned in that
article, provides that “proper heating, ventilating and lighting
systems shall be installed and maintained in the Plant where
needed.” An article entitled “Public Enemy Number One?”
dealt with the poor relations between employees and supervisor
Stanley. In this story, Smallwood asks rhetorically if Stanley is
“Public enemy number one” due to the manner in which he
deals with employees.
In late March 1999, Smallwood resumed publishing the
newsletter after a 16-month hiatus. The April edition made
reference to the earlier “Public Enemy Number One?” article
and further discussed Smallwood’s December 1997 discipline.
This newsletter also contained items dealing with safety issues
and motivation of employees through a reward program for unit
employees, instituted by Respondent with the Union’s coopera-
tion. There was an item about quality control in which
Smallwood, in an attempt at humor, stated, “Vinoo and a cou-
ple of his secret police might kick down your door.”
In the final newsletter issued on May 25 or 26, Smallwood
wrote an article entitled “Melt Division’s Dynamic Duo,” that
discussed Stanley’s involvement in Respondent’s disciplinary
process. This article discussed discipline issued by Kamdar and
the working conditions of employees in the melt division. Su-
pervisors Stanley and Kamdar are referred to as Howdy Doody
and Buffalo Bob because “both were likeable and loveable.”
There was an article in which Smallwood stated supervisor,
“Vinoo (Kamdar) is trying to sink his canoe and ours too” and
“Vinoo hasn’t a clue.” This article dealt with Kamdar’s disci-
pline of workers. There were safety stories and an article alleg-
ing that management had a problem with cronysim, nepotism,
and fraternization that adversely impacted on labor manage-
ment relations.
C. The Warnings
1. December 22, 1997
On December 22, 1997, Respondent issued a written warn-
ing to Smallwood for violating the Respondent’s harassment
free workplace policy by his defamatory, demeaning, and belit-
tling written and verbal comments in the newsletter. In the
disciplinary notice, Respondent warned Smallwood that he was
being disciplined for the content of his newsletters. Specifically
the notice stated:

Your defamatory, demeaning and belittling written and verbal
comments have been disruptive to the work force and under-
mined the supervisor’s authority and ability to manage the
Melt Shop and its workforce. As an example, you have char-
acterized and referred to them with contemptuous nicknames
and in derogatory terms such as, “public enemy number one”
and “Infamous.”

The derogatory terms were references to the article, “Public
Enemy Number One?” in the November 1997 edition of the
newsletter. The verbal comments mentioned in the written
warning concern a voice message Smallwood left for Stanley at
work on November 16, 1997. In the message Smallwood said
someone told him, “maintenance isn’t going to work for a
criminal no more. I—I hope this isn’t the case. I’ll talk to
maintenance about it but, uh, hope you’re doing OK . . . .” It is
clear from the context of the message that Smallwood was not
accusing Stanley of being a criminal but merely reported what
TITANIUM METALS CORP. 771
he had heard. It is also clear that Smallwood was expressing
concern for Stanley and solicited his comments. At the hearing
Gines testified that other examples of demeaning and defama-
tory newsletter material that led to the warning included a
statement that Kamdar was drinking bad ginseng tea in the
October 1997 issue at page three under the headline “Assault
on VDP, Driver Missing,” a reference to Supervisor Pauline
Vincent suffering from schizophrenia in the October 1997 edi-
tion at page four under the heading “Pauline Vincent, x-USWA
President suspected of conducting a sting Operation,” and a
photograph of a police suspect who was African-American at
page seven of the July 1997 issue of the newsletter.4
2. April 6, 1999
On April 6, after Smallwood resumed the newsletter, Re-
spondent issued him a written warning for leaving work on
March 10, without permission. It is not disputed that at least
two other employees, David Washington and Bill Hickman,
also left work on March 10 but were not disciplined. Hunt, the
grievance representative who handled the grievances for all
three employees, testified that his investigation found that while
Washington and Hickman had advised Supervisor Sezar that
they were leaving work, Smallwood did not. Hunt also testified
about two prior grievances where employees were not disci-
plined for leaving work without permission. Hunt admitted that
he knew nothing personally about those grievances, and he
conceded he did not know how those grievances were resolved.
3. May 24
After the April edition of the newsletter was distributed at a
meeting on May 24, Gines warned Smallwood he would be
terminated if he caused any further problems, including further
distribution of the newsletter at the plant.
4. May 25
On May 25, Respondent issued Smallwood a written warn-
ing,5 confirming the May 24 oral warning. The written warning
indicated Smallwood was being disciplined for poor work per-
formance, including a May 18, 1999 incident in which he alleg-
edly damaged a titanium ingot, for his questionable and mis-
leading response to the investigation of that incident, for distri-
bution of the newsletter, and for encouraging employees to call
him during working hours. The written warning of May 25
provides in pertinent part:

In addition, the unacceptable nature and negative conse-
quences of the distribution of your newsletter within the plant
was reiterated. . . . Your actions with respect to the latest melt-
ing incident and newsletter are in violation of numerous work
rules including Insubordination Rule 3 failure to cooperate
with supervision, 5 neglect of duty, and 7 hindering or limit-
ing work. Disorderly conduct Rule 1 inciting/advocating
trouble, Unauthorized Activities Rules 1 and 2 distributing

4 This warning has not been alleged as a violation of Sec. 8(a)(1) or
(3) of the Act as it is outside the 10(b) period but is relevant in deter-
mining whether Respondent harbored animus toward Smallwood.
5 There is no evidence that Respondent suspended Smallwood at this
time as alleged in the complaint. I will dismiss the portion of the com-
plaint alleging a May 25 suspension of Respondent.
unauthorized materials and soliciting, and company policies
such as harassment.
D. The Discharge of Smallwood and His Request for
Union Representation
Smallwood published the final edition of the newsletter vir-
tually concurrent with his May 25 warning. The uncontradicted
evidence reflects that Respondent discharged Smallwood on
May 26 due to the publication and distribution of the May
newsletter. The testimony reflects that Gines and Supervisor
Max Frederick met Smallwood when he got to work on May 26
and escorted him to Kamdar’s office. There, Gines informed
Smallwood he was suspended pending termination.
Smallwood then asked for union representation. Gines
picked up the telephone and asked someone to find Union Rep-
resentative Bob Hunt. According to Smallwood, Gines hung up
the telephone and asked Smallwood if he had any newsletters
with him. Smallwood said no but as Gines continued to look at
Smallwood, he handed Gines the plastic bag he was carrying.
Gines opened the bag and searched it but did not find a newslet-
ter therein. Shortly thereafter, Hunt arrived.6 After Gines ad-
vised Hunt that Smallwood was being terminated for writing the
newsletter, Frederick escorted Smallwood from the plant. By
letter dated June 8, 1999, Respondent converted Smallwood’s
suspension to a discharge effective May 26, 1999.
E. The No-Solicitation/No-Distribution Rule
At all relevant times herein since 1985, Respondent main-
tained an employee’s handbook. This handbook contained
rules relating to possession, distribution, and circulation of
written material. The rules provide at page 15 of the handbook:
Unauthorized Activities
1. Posting or distributing unauthorized materials on
Company premises without approval of the Industrial Re-
lations Manager.
2. Soliciting, selling, collecting or circulating petitions
for any purpose on Company time or premises unless au-
thorized by the Industrial Relations Manager.

As noted above, Respondent cited these rules infractions in
issuing the written warning to Smallwood on May 25.
F. The Grievance-Arbitration Procedure
Pursuant to the grievance-arbitration provision in the parties
collective-bargaining agreement, Smallwood’s discharge was
the subject of a grievance that went to step three on July 22,
1999. Before the grievance reached arbitration, it was resolved
by Respondent and the Union in a “Letter of Understanding”
dated February 15, 2000. In the letter the parties agreed:

Mr. Smallwood was not discharged for engaging in
protected concerted activities under the NLRA. . . . The
6 Gines testified that he did not question or search Smallwood’s bag
until after Hunt arrived. I credit the testimony of Smallwood concern-
ing the sequence of events regarding the timing of the questioning and
search. Smallwood’s testimony was more precise in the detail concern-
ing these events and Gines appears to rely on his notes of the May 26
meeting to support his recollection, yet those notes shed no light on the
order in which the events happened.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 772
Company’s reasons for discharging Mr. Smallwood in-
cluded issues such as insubordination, inappropriate con-
duct toward the Company and supervisory employees, on-
going and costly workmanship related infractions, provid-
ing misleading and inaccurate information related to melt-
ing incident investigations, etc.

Smallwood was notified of the Union’s decision by letter
dated March 8, 2000. However, Smallwood did not learn about
the Letter of Understanding until January 2001. Smallwood
was never consulted concerning the agreement by the parties to
settle the grievance and he never gave his consent to it.
IV. THE LAW AND ANALYSIS
A. Protected Concerted Activities
1. The law
In Meyers Industries, 268 NLRB 493 (1984) (Meyers I); and
Meyers Industries, 281 NLRB 882 (1986) (Meyers II); the
Board defined when an individual engages in concerted activity
for other mutual aid or protection. The Board in Meyers I
stated:

In general, to find an employee’s activity to be “concerted,”
we shall require that it be engaged in with or on the authority
of other employees, and not solely by and on behalf of the
employee himself. Once the activity is found to be concerted,
an 8(a)(1) violation will be found if, in addition, the employer
knew of the concerted nature of the employee’s activity, the
concerted activity was protected by the Act, and the adverse
employment action at issue (e.g., discharge) was motivated by
the employee’s protected concerted activity.7

In Meyers II, the Board emphasized that its definition of
concerted activity included individual activity where, “individ-
ual employees seek to initiate or to induce or to prepare for
group action, as well as individual employees bringing truly
group complaints to the attention of management.” Meyers
Industries, 281 NLRB at 887.
It is clear that an individual who seeks enforcement of a con-
tract obligation is engaged in concerted activity. Interboro
Contractors, Inc., 157 NLRB 1295 (1966); Felix Industries,
331 NLRB 144, 145 (2000). However, concerted activity pro-
tected by Section 7 of the Act by the mutual aid or protection.
clause is not limited to union activity. In Eastex, Inc. v. NLRB,
437 U.S. 556 (1978), the Supreme Court agreed with the court
of appeals that protected acts encompassed the distribution of a
newsletter dealing with efforts to enlist legislators to vote
against right to work amendments to the State constitution and
to override the veto of a minimum wage law. The Supreme
Court found protected “whatever is reasonably related to the
employees’ jobs or to their status or condition as employees in
the plant may be the subject of such handouts as we treat of
here, distributed on the plant premises in such a manner as not
to interfere with the work.” Eastex, Inc. v. NLRB, 437 U.S. at
562.

7 Meyers Industries, 268 NLRB at 497.
While it may be found that an individual’s action is con-
certed and protected under section 7 of the Act, that protection
may be lost under certain circumstances.
The Supreme Court in NLRB v. Electrical Workers Local
1229 (Jefferson Standard), 346 U.S. 464 (1953), held that em-
ployee conduct involving a disparagement of an employer’s
product, rather than publicizing a labor dispute, is not pro-
tected. The leaflet found unprotected in Jefferson Standard,
supra, was an employee handbill that contained an attack on the
quality of the employer’s television broadcasts and manage-
ment policies without reference to a labor dispute or to wages,
hours, or working conditions. Likewise, in Sahara Datsun, 278
NLRB 1044 (1986), enfd. 811 F.2d 1317 (9th Cir. 1987), the
Board found that an employee’s statements that the employer
falsified customer credit applications, which were made to the
bank that granted financing to the employer’s customers, were
unprotected. The Board found that the statements, although
related to terms and conditions of employment, were, neverthe-
less, unsubstantiated assertions that could have ruined a long-
standing business relationship based on trust and fair dealing.
On the other hand, the Board in Veeder-Root Co., 237 NLRB
1175 (1978), found that employee literature did not lose the
protection of the Act because it was false, misleading, or inac-
curate, provided that the statements were not deliberately or
maliciously false or made with reckless disregard for the truth.
See National Steel Corp., 236 NLRB 822, 824 (1982). The
Board has also found that employee action is protected whether
or not employees were reasonable or correct in a good-faith
belief. Fredericksburg Glass & Mirror, 323 NLRB 165, 179
(1997). The Board’s decision in New York University Medical
Center, 261 NLRB 822, 824 (1982), reflects how the Board
applied this standard. In that case, the Board found that the
statement, “[T]he NYU bosses have turned their security guards
into a fascist gestapo illegally searching workers and firing
them,” was not deliberately or maliciously false because it was
based on employee reports that the employer’s guards were
searching black and Hispanic employees. See also Alaska
Pulp, 296 NLRB 1260 (1989) (references offensive to Japanese
culture); Felix Industries, 331 NLRB 144 (2000); and CKS
Tool & Engineering, Inc., 332 NLRB 1578 (2000) (use of foul
language directed at a supervisor); New River Industries, 299
NLRB 773 (1990) (use of humor or sarcasm).
2. The analysis
a. The May 25 warning and May 26 termination
of Smallwood
There is no dispute that Smallwood’s publication of the
newsletter in 1997 and 1999 meets the Meyers I and Meyers II
definition of protected concerted activity. Smallwood collabo-
rated with fellow employees in the publication of each edition
of the newsletter. Fellow employees either discussed common
complaints with Smallwood or provided him with information
concerning common complaints that Smallwood translated into
articles. Smallwood testified without contradiction that many
employees gave him authority to publish their comments and
thus he was speaking with their authority and on their behalf.
From the context of numerous articles in each edition, Respon-
dent was made aware that these complaints emanated from the
TITANIUM METALS CORP. 773
employees. Thus, the articles in the newsletter often refer to
the fact that employees are complaining about supervisors,
safety or other issues encompassed under the collective bar-
gaining agreement and that employees are the source of the
information in the articles. It is clear further that the publica-
tion of the newsletter was protected as many of the stories deal
with wages, hours, and working conditions.
It is not clear however that Smallwood was engaged in union
activity in his publication of the newsletter, particularly in
1999. There is no evidence that the Union played a role in
supporting, distributing, or contributing to the newsletter.
While union officers may have provided some information for
articles, it is not clear that they did so in their official capacity
rather than as unit employees. In 1997 there were articles that
dealt with the collective-bargaining agreement but this was
done in a peripheral manner that was too attenuated to be con-
sidered union activity on the part of Smallwood. These articles
referenced the collective-bargaining agreement but did not seek
their enforcement. In the two editions of the newsletter in
1999, for which Smallwood was fired, there is no direct appeal
for contract enforcement and no other evidence of union in-
volvement in the newsletter. Therefore, I find that Smallwood’s
publication of the newsletter did not constitute union activities
and I will dismiss those portions of the complaint alleging that
Respondent’s warnings and discharge of Smallwood violated
Section 8(a)(3) of the Act.
From the beginning of his publication of the newsletter, Re-
spondent demonstrated animus toward Smallwood’s activity.
In the December 22, 1997 disciplinary notice, Respondent
warned Smallwood that he was being disciplined for the con-
tent of his newsletters. Smallwood was warned that further
conduct of this nature would result in further disciplinary action
up to and including termination. This warning led to the hiatus
in publication of the newsletter.
At the end of March 1999 Smallwood resumed publishing
the newsletter and by May 24, 1999, the final edition was re-
leased. From the context of the May 24 meeting Respondent
conducted with Smallwood, it is clear that he was told that if
another newsletter appeared he would be fired. In addition, the
May 25 warning reiterated that further distribution of the news-
letter would result in suspension and termination. When Re-
spondent learned that another newsletter issued on May 25,
after the previous warnings of May 24 and 25, Smallwood was
terminated for publication and distribution of the newsletter. It
is clear from the entire record that the primary reason for
Smallwood’s warnings on May 24 and 25 and his termination
on May 26 was the publication of the last edition of the news-
letter. On May 26 Gines told Hunt this was the reason for fir-
ing Smallwood. Later at the June 23, 1999 grievance meeting
Taylor stated that the sole reason for terminating Smallwood
was his publication of the newsletter.
Respondent contends that it lawfully terminated Smallwood
because some of the articles in his newsletters fell outside the
protection of the Act. In this regard Respondent refers to items
that appeared in the 1997 newsletters. However, Respondent
did not fire Smallwood for publication of the newsletter in
1997. After his December 1997 warning, Smallwood contin-
ued to work for Respondent for 17 months. It was not until the
publication of the final newsletter in May that Smallwood was
terminated for its continued publication and distribution. Since
Respondent did not fire Smallwood for his activities in 1997, it
is the publication and distribution of the newsletter in 1999 that
must be scrutinized to determine if Respondent had justification
for Smallwood’s termination.
The substance of the April and May-June 1999 newsletters
dealt with issues directly affecting Respondent’s workers who
had assisted Smallwood by discussing the substance of the arti-
cles with him and by providing him with the information con-
tained in the stories. Respondent contends that Smallwood’s
article “Here we go again” in the April 1999 issue is a character
assassination of Stanley and is not protected by the Act. How-
ever, a close examination of the story reflects that there is nothing
offensive concerning Stanley. Respondent argues Smallwood
published an article in the May–June 1999 newsletter that is un-
protected because it does not deal with working conditions or
other mutual aid or protection but is a vitriolic attack on man-
agement. The article is entitled, “Cronyism, Nepotism and Frat-
ernization.” In the article Smallwood defines each term and
states:
While nepotism and fraternization may present a prob-
lem from time to time, it’s the cronysim that’s really doing
a number on Timet. Relationships forged over many years
begin to cloud a supervisor’s ability to manage fairly. The
proof may be found in the fact that some workers have
been fired for the same thing others have done, and, in
some cases, continue to do. Cronyism is the cause. It’s
sometimes referred to as the “good ole boy” network.
Many workers at Timet feel as though certain people are
being “protected”. They can destroy equipment and cause
the loss of product and nothing ever happens. . . . Timet
even imports cronies from other companies. Arriving
from FMC were the following people. . .

John Sanderson, Plant Manager
Loren Taylor, Human Resources Mgr.

Bob Blankenship, Facilities Mgr.

Craig Wilkinson, Safety Supervisor

Jerry Madden VDP Mgr.
. . . .
If one of these people screws up do you think the oth-
ers will band together to cover his butt? I think there is a
good chance. Is there a potential for cover-ups? . . . . It’s
all part of the disease of cronyism and its dangerous.

While Respondent takes the position that this article has
nothing to do with working conditions or other mutual aid or
protection, the substance of the article deals with more favor-
able treatment some employees may receive from supervisors
based on who they know. Clearly this is related to working
conditions and is protected. The article also alludes to manag-
ers hired because they may have been friends and suggests that
this may result in the potential for coverups. There was no
evidence adduced at the hearing that the statements in
Smallwood’s article were false, misleading, or inaccurate nor is
it apparent that the statements were deliberately or maliciously
false or made with reckless disregard for the truth. There is no
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 774
evidence that the newsletter was given circulation beyond the
employees in the melt department. The April and May-June
editions were not yet available on a website,8 nor were they
distributed to any advertisers as no advertisers appear in these
editions.
Respondent argues further that Smallwood was disciplined
on May 25 for providing his work phone number in the news-
letter and inviting employees to call him at work as well as for
a melt incident that occurred on May 18. It is clear that the
primary motivation for Smallwood’s May 25 warning as well
as his termination was the publication of the newsletter. More-
over, it was common practice for employees to receive phone
calls at work. There is no evidence that Smallwood ever re-
ceived excessive phone calls at work or that they adversely
effected his performance. The primary focus of the May 24
meeting, the written discipline of May 25, and the termination
of May 26, was publication of the newsletter. Thus, the argu-
ment that Smallwood was disciplined for either the publication
of his phone number at work or for the melt accident is pretex-
tual.
Respondent violated Section 8(a)(1) when it warned
Smallwood on May 25 and terminated him on May 26 because
he engaged in protected concerted activity in publishing the
newsletter in April and May 1999. The newsletter did not lose
the protection of the Act as the subject matter of the articles did
not constitute disparagement of Respondent, advocate violence,
nor were they maliciously false or made with reckless disregard
for the truth. Veeder-Root Co., 237 NLRB 1175 (1978),
Fredericksburg Glass & Mirror, 323 NLRB 165 (1997).
b. The April 6, 1999 warning
General Counsel argues that Respondent’s April 6 warning
to Smallwood was due to his protected concerted activity and
his union activity in publishing the newsletter. However, while
the April edition of the newsletter had issued by the time of the
warning on April 6, there was no evidence of animus yet di-
rected at Smallwood regarding the newsletter. The two em-
ployees who had also left work on April 6 did so with permis-
sion of the supervisor they had notified and there is no proba-
tive evidence of disparate treatment. Hunt’s testimony con-
cerning other employees not disciplined for leaving work with-
out permission is not reliable since he had no personal knowl-
edge of the facts in those cases. I find that General Counsel has
failed to establish that Respondent’s motive in issuing the April
6 warning was Smallwood’s protected-concerted or union ac-
tivity and I will dismiss that portion of the complaint.
B. The Request for Union Representation
1. The law
Employees have a Section 7 right to union representation at
interviews where there is a reasonable belief that the employee
will be disciplined. NLRB v. J. Weingarten, 420 U.S. 251
(1975). However this right does not apply where the adverse
action has been decided and the employee is only being in-
formed. LIR-USA Mfg. Co., 306 NLRB 298, 305 (1992); Baton

8 See May-June edition at p. 1 under the column entitled “Special
points of interest.”
Rouge Water Works Co., 246 NLRB 995 (1979). But the
Board has held that where an employer informs an employee of
a disciplinary action and then questions the employee to seek
information to bolster that decision, the employee’s right to
representation applies. Becker Group, Inc., 329 NLRB 103,
107 (1999).
2. The analysis
General Counsel alleges that on May 26, 1999, at the termi-
nation/suspension meeting, Respondent denied Smallwood’s
request for union representation. The evidence establishes that
Smallwood requested representation by Union Steward Robert
Hunt. Although he could not be located initially, Hunt arrived
a short time later and represented Smallwood. While it is clear
that the purpose of this meeting was simply to inform
Smallwood of disciplinary action that had already been de-
cided, it appears that Gines went beyond that purpose and inter-
rogated Smallwood about distribution of the newsletter before
Hunt arrived. In these circumstances, Smallwood’s right to
union representation did not attach until Gines questioned and
searched him to determine if he had a newsletter in his posses-
sion. This interrogation and search was to support Respon-
dent’s decision to terminate Smallwood for publishing and
distributing the newsletter. It was Gines who had made the
decision to terminate Smallwood for violation of Respondent’s
unauthorized activities rules 1 and 2 (distributing unauthorized
materials and soliciting) but he had no evidence that
Smallwood had personally distributed the newsletter at the
plant. The interrogation took place in a supervisor’s office.
Based on Becker Group, supra, I find Respondent violated Sec-
tion 8(a)(1) when Gines went beyond informing Smallwood of
the disciplinary action and questioned him about possession of
the newsletter in the absence of a union representative.
C. The No-Solicitation/No-Distribution Rule
1. The law
With regard to rules hindering or forbidding solicitation, the
Board has stated that, “[a] no-solicitation rule is lawful so long
as its prohibition is confined to periods when employees are
performing actual job duties, periods which do not include that
employee’s own time such as lunch and break periods.” Clin-
ton Electronics Corp., 332 NLRB 479, 497 (2000) [citing Our
Way, Inc., 268 NLRB 394, 395 (1983)]. Our Way, Inc. also
applies to cases involving rules prohibiting or placing limita-
tions on distribution. Caval Tool Division, 331 NLRB 858 fn.
2 (2000).
2. The analysis
Respondent’s unauthorized activities rules 1 and 2, on their
face, do not permit an employee to solicit or distribute during
lunch and break periods. “Indeed, the mere maintenance of an
ambiguous or overly broad rule tends to inhibit or threaten
employees who desire to engage in legally protected activity
but refrain from doing so rather than risk discipline.” Grand-
view Health Care Center, 332 NLRB 347, 348 (2000) (citing
Ingram Book Co., 315 NLRB 515, 516 (1994); J.C. Penney
Co., 266 NLRB 1223, 1224 (1983). In order to defeat this pre-
sumption of illegality of its overly broad rules, Respondent
must show a compelling and legitimate business reason neces-
TITANIUM METALS CORP. 775
sitating the rule. Midland Transportation Co., 304 NLRB 4, 5
(1991). No evidence has been adduced to establish a compel-
ling and legitimate business reason necessitating the rules.
“Interference with employee circulation of protected material in
non-working areas during off-duty periods is presumptively a
violation of the Act unless the employer can affirmatively dem-
onstrate the restriction is necessary to protect its proper inter-
est.” Champion International Corp., 303 NLRB 102, 105
(1991) (citing Republic Aviation Corp. v. NLRB, 324 U.S. 793
(1945)). I find that the maintenance and enforcement of Re-
spondent’s no-distribution/no-solicitation rule violates Section
8(a)(1) of the Act.
D. Deferral to the Grievance Arbitration Procedure
1. The law
In Alpha Beta Co., 273 NLRB 1546 (1985), the Board ex-
tended the principles of Spielberg Mfg. Co., 112 NLRB 1080
(1955), to settlements negotiated by parties to a griev-
ance/arbitration process. The Board stated they would defer to
a settlement agreement where the grievance proceedings were
fair and regular, all parties had agreed to be bound, including
the employees, and that the results of the settlement agreement
are not clearly repugnant to the principles and policies of the
Act, i.e., not palpably wrong. In Postal Service, 300 NLRB
196 (1990), the Board extended its decision in Alpha Beta to
settlements between the employer and authorized bargaining
representative over the objection of the affected employee.
2. The analysis
Although there is serious doubt that the letter of understand-
ing constitutes a settlement since there was arguably no quid
pro quo received by the Union in exchange for their withdrawal
of the grievance, applying the Alpha Beta standards to this
agreement it is apparent that deferral is not appropriate. While
there is no evidence that the proceedings were unfair or irregu-
lar through the third step of the grievance procedure, and all
parties were bound to the settlement, the settlement is repug-
nant to the principles and policies of the Act. The conclusions
reached in the letter of understanding that Respondent did not
violate the Act, that Smallwood did not engage in protected
concerted activity and that Respondent terminated Smallwood
for legitimate reasons is palpably wrong based on the discus-
sion above. Under the principles in Spielberg Mfg. Co., 112
NLRB 1080 (1955), Alpha Beta Co., 273 NLRB 1546 (1985),
and Postal Service, 300 NLRB 196 (1990), it is not appropriate
to defer to the parties settlement agreement.
E. Collateral Defenses
Respondent raises two collateral defenses. Respondent ar-
gues that Smallwood’s activities were defamatory and created a
hostile work environment. Respondent contends it has an obli-
gation to ensure a workplace free from harassment and defama-
tion. Having found that Smallwood’s publication of the news-
letter was protected-concerted activity, neither so opprobrious
nor flagrant as to lose its protected status, under the Board’s
test in NLRB v. Electrical Workers IBEW Local 1229 (Jefferson
Standard), 346 U.S. 464 (1953), and its progeny, no further
consideration of these collateral defenses under State law or
other Federal statutes need be considered.
Based on the foregoing findings of fact, legal analysis, and
the record as a whole, I make the following
CONCLUSIONS OF LAW
1. Respondent, Titanium Metals Corporation is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent engaged in conduct in violation of Section
8(a)(1) of the Act.
(a) Issuing warnings, interrogating, suspending, and dis-
charging David Smallwood because he engaged in concerted
activities with other employees for mutual aid and protection by
publishing the newsletter.
(b) By denying David Smallwood’s request for union repre-
sentation at the May 26, 1999 interview.
(c) By promulgating and maintaining, since April 2, 1999, an
overly broad no-solicitation/no-distribution rule.
(d) On May 25, 1999, by warning David Smallwood that his
distribution of the newsletter violated Respondent’s no-
solicitation/no-distribution rule.
4. Respondent’s unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Having discriminatorily suspended and then discharged
David Smallwod, Respondent must offer him reinstatement to
his former position and make him whole for any loss of earn-
ings and other benefits, computed on a quarterly basis from
date of his suspension and discharge to date of a proper offer of
reinstatement, as prescribed in F. W. Woolworth, 90 NLRB 289
(1950), plus interest as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
Respondent must further expunge from any of its records any
reference to Smallwood’s May 25 warning and his May 26
suspension and discharge, and notify him in writing that such
action has been taken and that any evidence related to this
warning, suspension, and discharge will not be considered in
any future personnel action affecting him. Sterling Sugars,
Inc., 261 NLRB 472 (1982).
Formally rescind in writing its overly broad no-
solicitation/no-distribution rule and post notice that this has
been done.
[Recommended Order omitted from publication.]