Wade & Sons, Inc.

440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wade & Sons, Inc. and George W. Lemasters. Case 17-CA-5559 November 19, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Pursuant to due notice, a hearing was held before me in Kansas City, Kansas, on May 21, 1973. All parties were afforded full opportunity to be heard, to present oral and written evidence, and to examine and cross-examine witnesses. The parties waived oral argument. Since the hearing, briefs have been filed by the General Counsel and Respondent. Upon the entire record,2 together with careful observa- tion of the witnesses and consideration of the briefs, I make the following: On July 13, 1973, Administrative Law Judge Josephine H. Klein issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt her recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, Wade & Sons, Inc., Independence, Missouri, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order. ' In the absence of exceptions thereto, the Administrative Law Judge's dismissal of the 8(a)(1) allegation is adopted pro forma DECISION STATEMENT OF THE CASE JOSEPHINE H. KLEIN, Administrative Law Judge: Pur- suant to a charge filed on March 16, 1973, by George W. Lemasters against Wade & Sons, Inc., a complaint was issued on April 30 alleging that on March 14 Respondent, in violation of Section 8(a)(1) of the Act,i "did unlawfully interfere with the rights of its employees to determine whether to execute or reject a collective-bargaining agreement" and on March 15 discriminatorily discharged Lemasters "because [he] had engaged in union and/or other protected, concerted activity," in violation of Section 8(a)(3) of the Act. Respondent's answer admitted the jurisdictional allegations and the discharge of Lemasters, but denied the commission of any unfair labor practices. I National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519, 29 U S C 151 et seq.). 2 The General Counsel's unopposed motion to correct the transcript is granted. 3 Although the complaint does not so allege, I also find that the Employees Bargaining Council (the Council) was a labor organization FINDINGS OF FACT 1. PRELIMINARY FINDINGS The complaint alleges, the answer admits, and I find that: A. Respondent, a Missouri corporation, with its place of business in Independence, Missouri, is engaged in the manufacture and wholesale distribution of automotive replacement parts. In the course and conduct of its business, Respondent annually purchases goods and materials valued in excess of $50 ,000 directly from sources outside Missouri and sells goods valued in excess of $50,000 directly to customers located outside Missouri. Respondent is now and has been at all times material herein an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. B. District Lodge No. 71, International Association of Machinists & Aerospace Workers, AFL-CIO (IAM), is now and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act.3 II. THE UNFAIR LABOR PRACTICES A. The Facts Lemasters was employed by Respondent in February 1969. Sometime in 1971, with Lemasters as the employee contact, the IAM attempted to organize Respondent's production and maintenance employees. However, the lAM then lost a Board-conducted election. An independ- ent Employees' Bargaining Council was formed sometime in 1972.4 The Council charged no dues or initiation or other fees. It met in the lunchroom at Respondent's plant. Although the Council had no constitution or bylaws, it operated under an organizational provision calling for an executive board which was "to start preliminary actions toward drawing up of an agreeable contract between the men and" the Company. The terms of the executive board members (i.e. the Council's initial officers) were limited to 90 days, ending in October 1972. The first elected officers of the Council were Michael Prentiss as president and Lemasters as vice president. Prentiss, however, resigned his office during his term and Lemasters succeeded to the presidency late in September within the meaning of Section 2(5) of the Act. See below. E. Anthony & Sons v N.L KB., 163 F.2d 22,27-28 (C A.D.C., 1947) 4 In his testimony in this connection, Lemasters was confused and obviously mistaken as to some dates, referring to 1971 frequently when 1972 was meant. and 1972 when 1973 was correct. The dates here set forth are based on analysis of the pattern of events. 207 NLRB No. 75 WADE & SONS, INC. 441 1972. Lemasters testified that he continued as "president" until March 15, 1973.5 Obviously, at least for the latter portion of this time, he was only "de facto" president. Respondent and the Council engaged in collective bargaining. Prentiss attended only the first session, after which Lemasters took over as the Council's principal negotiator. The precise number and dates of the sessions are not disclosed. However, Lemasters testified, without contradiction, that around four to six sessions were held while he was working as night-shift foreman, a position he held from around April 3 until December 21, 1972. It does not appear precisely when agreement was reached on a contract, but the evidence is undisputed that the employees ratified the agreement, by a vote of 14 to 9, on February 15, 1973. Charles Wade, Respondent's vice president and manager, and David Wade, plant superin- tendent, were present throughout the employees' balloting on the question of ratification. President Earl Wade, David's and Charles' father, later took custody of the ballots, which he testified he still had at the time of the hearing. (Hereafter the Respondent's three principals will be referred to by their first names.) Although the employees voted to accept the agreement negotiated, no written contract was signed because the Council had no elected officers. In the ensuing 3 or 4 weeks, one or more of the Wades asked Lemasters on several occasions when he intended to have an election of Council officers, who could then sign the contract. Lemasters replied, apparently vaguely or nonchalantly, that he would do so in due course. Around the end of February or the first of March 1973, Lemasters consulted Glenn E. Hunter, an IAM representa- tive, about the IAM's again attempting to organize Respondent's production and maintenance employees. IAM meetings were then held at Lemasters' home on March 2 and 12, when a majority of the employees signed authorization cards for the IAM. Lemasters advertently refrained from telling the Wades about his current contact and dealings with the IAM. On Wednesday, March 13, Hunt sent Respondent a demand for recognition and bargaining. Respondent received the demand the next day, March 14. On the morning of March 14,6 Charles asked Lemasters, in the work area of the plant, "if we could have the election of new officers and get the contract signed." Lemasters said that he would hold the requested meeting on Friday, March 16. Charles said that was satisfactory and then proceeded into his office. Shortly thereafter, he reemerged and again went to speak to Lemasters. At this time, Wade said that the contract "had to be signed and new officers elected the same day," i.e., March 14. Lemasters thereupon arranged a meeting, which was held at 4 p.m. that day in the lunchroom at the plant. The employees voted 16 to 3 against signing the contract. There was no election of officers. 5 He testified- "Q. How did you become president? A. Well, Mike Prentiss resigned, and a couple of the other members told me that I should dust go ahead and become president instead of having another election to elect officers." 6 The transcript reflects that at one point (p. 22,1. 25) Lemasters said this conversation took place "in the morning of the 10th." The evidence as a whole, however, shows that March 14 is the correct date. Lemasters thereupon informed Charles Wade "that the people decided that they didn't want to sign the contract." According to Lemasters' uncontradicted testimony, Charles said that the employees had not met to sign the contract but only to elect new officers. David Wade, a foreman, then expressed the opinion that the Council's signature to the contract was unnecessary "because it was already legal and in effect." The next day, Thursday, March 15, about half an hour before quitting time, Lemasters was called into Charles Wade's office, where he was discharged. Lemasters testified, without contradiction, that when he asked why he was being fired, Charles "said that we just couldn't get along together any longer." Respondent's payroll week ends on Wednesday, with Friday as payday. A Board-conducted election was held on May 7. The IAM won the election by a vote of 14 to 9, with Lemasters voting under challenge. The IAM was thereupon certified. It is the General Counsel's position that Lemasters was discharged for having instigated the IAM's successful campaign. Respondent maintains that Lemasters was fired for poor work performance. In order to appraise these contentions, it is necessary to backtrack and summarize Lemasters' work history with Respondent. He commenced work for Respondent on February 14, 1969, and, at the time here involved, was Respondent's most senior employ- ee.? Although he apparently acquired some experience in many facets of the operations, he worked primarily as a screw machine operator. His starting wage does not appear. However, according to Respondent's records, in his first 3 years he received the following wage increases: to $3.15 per hour on April 16, 1971; to $3.23 on July 15, 1971; $3.32 on November 15, 1971; and $3.41 on February 17, 1972. On April 3, 1972, Lemasters was made "foreman" on the night shift, at a wage of $3.80 per hour, which was increased to $3.88 on July 6, 1972, and to $4 on October 6, 1972,8 In November 1972, Respondent began to become dissatisfied with the performance of the night shift. It received reports from some employees that Lemasters was not exercising responsible supervision and was not proper- ly servicing the machines to keep them in proper operation. Charles and David then visited the plant and watched the operations. They found that breaks were being extended considerably beyond the allotted times and that employees were, in effect, being permitted to clock in falselyto hide the extended breaks. One evening, apparently late in November, Charles found, that the night-shift employees, including Lemasters, were just sitting around talking when they should have been working. When so discovered, Lemasters offered to resign. His offer was rejected and, instead, he was reprimanded and warned against future recurrences. On December 21, 1972, Lemasters was removed'as night- shift foreman and returned to the day shift, where he 7 It was stipulated that Lemasters and Prentiss were the only people employed by Respondent on both February 17. 1971, and April 16, 1973, apparently the eligibility dates for the two elections on the lAM's petitions. Prentiss had left Respondent's employ before the present hearing. 8 Lemasters testified that his final wage rate as night-shift foreman was $4 05 per hour, but this rate is not shown in an employee "record" introduced by Respondent. This discrepancy is not significant. 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD resumed his former position as operator of the screw machine. In this job, he worked under the supervision of David. Shortly thereafter he was made a leadman on the day shift. Although Respondent's "record" does not so reflect, Lemasters and Earl testified that he received a wage increase as leadman. In this connection, Earl testified that the leadman position "was a more responsible job, so we gave him more money for it." Earl also testified that Lemasters was given this more responsible job because his performance as a rank-and-file operator was unsatisfacto- ry. Earl's explanation of this apparent anomaly was, in part, as follows: JUDGE KLEIN: Why was he changed from an operator to a leadman on the day shift? THE WITNESS: Well, we just thought that since he had run the screw machine more than anything else, it just seemed like in spite of our efforts to try to do something for him and the company that it wasn't working out, and he wasn't getting the production out that he should have been. And he had had lots of experience on him. JUDGE KLEIN: So you made him a leadman? THE WITNESS: Yes. JUDGE KLEIN: And that was an increase in pay, was it not? TIE WITNESS: Yes, it was, because we rationalized that since he was working on the night shift and the thing that happened was the irregularities, that we would still see if we couldn't, it was his most recent experience. We were going to see if we couldn't use that to some advantage in the day time so he could have some help also. And so we didn't - it was considered to be a more responsible job. JUDGE KLEIN: But you say you kicked him upstairs, is that what you're saying? THE WITNESS: It was a more responsible job, so we gave him more money for it. JUDGE KLEIN: Because his work was unsatisfactory as an operator? THE WITNESS: Yes. If you take a person out of one category and put him in another you have to give him the appropriate wage rate. We were dust trying to give him some incentive, I suppose. We tried everything we could to get him to do a little better. According to Respondent, Lemasters' performance as leadman on the screw machines was unsatisfactory. Respondent introduced into evidence certain parts (pul- leys) as representative of defective parts produced by Lemasters. On January 12, 1973, Lemasters was trans- ferred from the screw machines, under David's supervision, to the milling machines, under Charles' supervision. At the time of this transfer, Charles warned Lemasters that if "he didn't straighten up" he would be discharged or would "have to find another job." Lemasters testified that his wage rate was reduced from $3.80 to $3.65. Respondent's "record" does not reflect this reduction. Again Respondent found Lemasters' performance unsa- tisfactory. It introduced into evidence an allegedly repre- sentative part defectively produced by Lemasters on the milling machine. Around the third week of February 1973, Lemasters was moved to operation of the turret lathe, which Earl testified is considerably simpler and thus easier to operate than the screw machine. On February 22, pursuant to the collective-bargaining agreement with the Council, Lemasters' wage rate was reduced to $3.56 per hour. That wage rate constituted a 16-cent-per-hour increase in the basic rate for operators , but Lemasters had previously been paid more than other operators. According to Lemasters, Charles expressed satisfaction with Lemasters' work on the turret lathe during Lemasters' final weeks with the Company. Indeed, Charles corroborat- ed this fact, testifying that Lemasters "did real well on [the Foster turret lathe] job." However, according to Charles, after a while defective parts began to appear, but none of these parts had to be scrapped or reworked. At the conclusion of testimony, Charles testified that Lemasters' rate of production on the screw machines was "average," but that "he was having a lot of down time." Charles continued : "On the turret lathe or on the arbor houses, he had what I thought was acceptable production." There was some conflict in the testimony of Earl and Charles as to when the decision was made to discharge Lemasters. Both witnesses testified that the possibility of discharging Lemasters had been considered and discussed sometime before he was finally fired . However, Earl testified that the Wades "had decided about three or four days before [they] discharged him that [they] were going to discharge him." Charles, however, testified that they warned Lemasters around the middle of February and the final decision "must have been sometime, last of February or first of March." The actual discharge came on March 15. In explanation of the precise timing of the final discharge, Charles testified that Lemasters was then working on a special order of which immediate delivery was required . According to Charles, on Thursday, March 15, Lemasters had almost completed that order . Although no evidence was presented as to how long it had actually taken another employee to finish the work , Charles indicated that he did not want to retain Lemasters for an additional day, during which he might be in a position to start on another job. Discussion and Conclusions 1. Section 8(a)(3) The General Counsel contends that Lemasters was discharged, at least in substantial part, because of his activity on behalf of the JAM and/or his failure to obtain the Council's signature to the collective -bargaining agree- ment negotiated with Respondent. Respondent, on the other hand, maintains, as counsel stated at the hearing, that Lemasters "became an incompetent employee, and he was given chance after chance, and that he was fired for one reason and one reason only, that he was fired for that incompetence." As previously set forth, Lemasters was Respondent's most senior employee at the time here involved . It also appears that Respondent's work force was not particularly marked by its stability, Lemasters and Prentiss being the only two employees among approximately 25 working in April 1973 who had also been employed by Respondent in February 1971. It must, therefore, be assumed that Lemasters' work performance was at least adequate during the first 2 or 3 years, i.e., from September 1969 until April 1972, when he was promoted to the position of night shift foreman. There is no credible evidence that Lemasters had WADE & SONS, INC. 443 been criticized before April 1972, and Earl conceded that he considered Lemasters "competent" at the time he was made foreman. There is no question, however, that after he was promoted to the position of night-shift foreman Lemasters' performance became unsatisfactory to Respondent. None- theless, he was kept on and Respondent appears to have made rather extraordinary efforts to accommodate Lemas- ters' deficiencies. Earl's explanation of this course of conduct, as having been dictated by a desire not to waste the "investment" in the employee's long training, was confused and unpersuasive. For example, at one point, when asked why Lemasters had not been discharged back in 1972, Earl said: In a position like I have you have to disregard your personal feelings and do what's best for your corpora- tion, and we thought that's what we were doing because we had time and money and training with him and we thought we would try to salvage it. However, since there was other evidence that Lemasters and the Wades had been on very friendly terms, it is difficult to understand why the corporate interest in retaining an incompetent employee would require "disre- gard [of] personal feelings." If, as Respondent also maintained, Lemasters' deficiencies were costly, in causing excessive scrap or reworking of parts, it is not clear what "personal feelings" were "disregarded" in deciding not to discharge him long before March 15, 1973. The explanation for Respondent's conduct must be found by inference from other facts. After the IAM had lost an election in 1971, Respondent voluntarily recognized the Council, an independent union, at a time when there rumors of another organizational campaign, apparently by an outside union. Prentiss, the Council's first president, resigned from that office, leaving Lemasters as the acting head. Lemasters was the Council's chief spokesman and representative in the negotiations which led to an agree- ment acceptable to Respondent. During most of the negotiations, Lemasters was serving as night-shift foreman, a position which he was permitted to hold for some 2 months after Respondent had become dissatisfied with his performance. Respondent had even rejected Lemasters' attempt to quit when found in dereliction. During the, weeks that followed employee ratification of the Council agreement, Respondent asked Lemasters when he would hold a Council, meeting for the election of officers to execute a written contract. But it was not until March 14 that Respondent changed its "inquiries" to a demand for that action. This change coincided very closely with the IAM's successful organization. Earl, testified that, after having finally decided to discharge Lemasters a few days earlier, Respondent wanted Lemasters to have the contract finalized before he left. Significantly, however, when Lemasters said he would have, the meeting held on Friday, March 16, Charles initially expressed his satisfaction. It must therefore be inferred that, at least on the morning of Wednesday, March 14, Respondent did not intend to discharge Lemasters that week. There is no direct evidence as to what motivated Charles' subsequent reversal of position and demand that the meeting be held on March 14. However, the record does establish that the IAM demand for recognition was mailed from Kansas City on March 13 and received in nearby Independence on March 14. Presumably it was received by Respondent in the morning mail. Between the time Charles expressed satisfaction with an election to be held on March 16 and his subsequent insistence that the meeting be held on March 14, he had visited his office. If one is to see any rational pattern, he must infer that Charles learned of the Union's demand during that visit. There is no apparent alternative explanation for his rapid change of heart. As Respondent maintains, there is no direct evidence that it knew of Lemasters' responsibility for the IAM's successful campaign. However, knowledge can be inferred from circumstantial evidence, including such matters as the timing of the discharge and the relative smallness of the plant. Famet„ Inc., 202 NLRB 409, and cases cited. Respondent knew that Lemasters, as president of the Council, was a leader among the employees. Presumably he would have known of any renewed activity by the IAM, particularly since he had been responsible for its first, unsuccessful campaign. It is reasonable to assume that, had Lemasters remained loyal to the Council, he would have taken some action earlier, such as having the Council contract signed or at least informing Respondent of the potential threat thereto. Respondent would have been totally naif if it had not immediately become suspicious of Lemasters when the IAM demand was made and Lemas- ters then informed Respondent that the employees had voted not to ratify the Council agreement. This suspicion would be heightened by the fact that, according to Respondent, Lemasters was the only employee who complained about the wage rates in the Council agreement. Under that contract, which Respondent put into effect shortly after February 15, Lemasters, Respondent's highest paid employee, received a wage decrease, whereas the other employees received an increase of 16 cents per hour. The abruptness of the discharge, I day after the end of a pay period and before Lemasters had finished the job for which Respondent maintains he was being kept on, suggests a motive other than chronic dissatisfaction with Lemasters' performance. The abruptness and timing of the discharge are strong evidence of improper motive. N. L. R. B. v. Montgomery Ward & Co., Inc., 242 F.2d 497, 502 (C.A. 2, 1957), cert. denied 355 U.S. 829 (1957); N. L. R. B. v. Mid State Sportswear, Inc., 412 F.2d 537, 539 (C.A. 5, 1959); McGraw-Edison Co. v. NL.R.B., 419 F.2d 67,75 (C.A. 8, 1969). The self-serving testimony of Respon- dent's representatives concerning their motivation is not conclusive. Shattuck Denn Mining Corp. v. N.L.RB., 362 F.2d 466 (C.A. 9, 1966). Although Respondent had not in the past been diffident about complaining about Lemasters' performance, the evidence is undisputed that,, when Lemasters asked why he was being discharged on March 15, Charles replied only that they "couldn't get along together any longer." There is no evidence that Charles cited Lemasters' poor work as the reason for his discharge. The day after , the discharge employee Larry Dutton asked David why Lemasters had been fired. At first David 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD said he was not in a position to say. However, later that day David showed Dutton two types of parts which Lemasters had allegedly fabricated defectively. These, according to David, were the reason for the discharge. However, as previously noted, these parts had been made some time in the past and Lemasters' recent production had been satisfactory. David's delay in giving Dutton an explanation strongly suggests that Respondent was at that point, after the fact, looking for justifying evidence. If, as Earl and Charles testified, all three Wades had previously concurred in a final decision to fire Lemasters, one would expect David to have revealed the reason upon Dutton's initial inquiry. That Respondent was seeking justification after the fact is further indicated by Dutton's additional testimony that in preparation for the present trial Respon- dent's counsel asked Dutton if he knew of "any just reason" why, had he been the employer, he "would have fired" Lemasters. Respondent had counted on Lemasters to have the Council agreement signed. Obviously Respondent would be disappointed and displeased by the arrival of the IAM on the scene and the employees' vote to repudiate the Council agreement. Employee Dennis Differing testified that on or about May 16, 1973, after having been reprimanded for talking during working hours, he "asked David Wade if [David] had anything against" Differing. David replied: "You know why we've got it against you and 14 others in this shop. You all brought it on yourselves." David's statement obviously referred to the Board-conducted election of May 7, 1973, which the IAM won by a vote of 14 to 9, with Lemasters' ballot, presumably in favor of the IAM, being challenged. It is understandable, that Respondent would consider Lemasters guilty of unpardonable duplicity. As said in Respondent's brief, knowledge or surmise that Lemasters had led the IAM campaign "could only lead to the conclusion that Mr. Lemasters engaged in bad faith bargaining misleading the employer as to his representa- tional capacity." But Lemasters' lack of candor with Respondent does not deprive him and the other employees of their statutory right to choose their own bargaining agent, free of employer interference. Respondent had available legal means to resist the lAM if it believed that the Council agreement had been properly negotiated. It could not, however, take matters in its own hands by retaliating against Lemasters for his alleged "misrepresen- tation" and duplicity. On all the evidence, I find and conclude that the immediate motivation for Lemasters' discharge was Res- pondent's shock and displeasure on learning of the IAM representation and consequent frustration of the Council agreement. That Respondent also had justifiable grounds for discharging Lemasters because of his unsatisfactory performance does not preclude a finding that the discharge was violative of Section 8(a)(3). N.L.R.B. v. Yale Manufac- turing Company, 356 F.2d 69, 74 (C.A. 1, 1966). A discharge is violative of the Act whenever the employee's union or other protected activities are "a contributing factor" in the decision. N.L.R.B. v. National Food Stores, Inc., 332 F.2d 249, 252 (C.A. 7, 1964); N.L.R.B. v. Tom Wood Pontiac, Inc., 447 F.2d 383, 386 (C.A. 7, 1971). Indeed, Respon- dent's long-suffering indulgence of Lemasters' delinquen- cies tends to reinforce the inference that the immediate and dominant reason for the abrupt discharge was Lemasters' union activities. Accordingly, on all the evidence, including careful observation of the demeanor of the witnesses , I find that, as alleged in the complaint, Respondent discriminatorily discharged Lemasters in violation of Section 8(a)(3) and (1) of the Act. 2. Section 8(a)(1) The complaint alleges that on March 14, 1973, Respon- dent "did unlawfully interfere with the rights of its employees to determine whether to execute or reject a collective-bargaining agreement." But the fact is that the employees had accepted the agreement on or about February 15. Thus, on March 14 there was no question concerning ratification; the matter at issue was the election of officers to sign a written contract. If the contract negotiated by the Council and Respon- dent and "ratified" by vote of the employees on or about February 15, 1973, was valid, Respondent was statutorily entitled to request that it be reduced to writing and signed by the Council. Section 8(b)(2) and (d) of the Act. If Respondent had an absolute right to a signed written contract, it cannot reasonably be said that it violated the law by asking the Council's representative to take the necessary preliminary formal step. Such request did not constitute the type of gratuitous intermeddling present in North American Rockwell Corporation, 191 NLRB 833, cited by the General Counsel. The record evidence, however, casts doubt on the validity of the Council agreement. During most of the contract negotiations, Lemasters was serving as night-shift "foreman" while he was serving as the Council's spokes- man and negotiator. Although Respondent apparently sought at the hearing to establish that Lemasters' position was not "supervisory" within the statutory definition, it does not expressly so contend in its brief. In any event, the record evidence clearly establishes Lemasters' supervisory status while working on the night shift. The evidence establishes that he was consulted concerning the hiring of new employees for the night shift and generally interviewed' applicants for such positions. He fired, or at least effectively recommended the discharge of, two employees. There was specific evidence that he consulted Charles on one of these two discharges and was instructed to take whatever action he felt was proper. He was the top-ranking person on the night shift, with no top-echelon management representative present. Thus it was he who took responsibility for such personnel actions as excusing employee absences. Although he reported to Charles concerning all major facets of the night-shift operations, such reports appear to have been purely informational, given after the facts. There is no evidence that he was required to or did receive advance orders or permission to take necessary specific action. Respondent's evidence itself discloses the high degree of responsibility conferred on Lemasters. He was relieved of the job because he was deemed insufficiently "responsible" WADE & SONS, INC. 445 in conducting the operation and maintaining proper discipline. Charles testified that Lemasters' function on the night shift was "to see that people were putting out quality material and to assist in making adjustments on ma- chines." Charles then proceeded to testify that it was generally difficult "to get people to work that night shift" and therefore there were several inexperienced employees "that should have been supervised closely." It thus clearly appears that Respondent assigned truly supervisory re- sponsibility and duties to Lemasters on the night shift, as distinguished from the more routine responsibilities he later had on the day shift under David's supervision. Additionally, it is undisputed that Charles and David were present at the February 15, 1973, meeting at which the employees voted on ratification of the Council contract. Earl further manifested his interest in this action by requesting and receiving the ballots. Either Lemasters' supervisory status or the Wades' involvement in the employees' ratification vote is sufficient to invalidate the Council agreement as violative of Section 8(a)(2). Mon River Towing, Inc. v. N.LR.B., 241 F.2d 1 (C.A. 3). The problem is that neither the charge nor the complaint in the present case alleges a violation of Section 8(a)(2). At the hearing, the General Counsel made clear that the absence of an 8(a)(2) allegation from the complaint was advertent, based on the facts that the Council was now defunct and the JAM had been certified. The complaint was entirely silent as to the existence of the Council and its collective-bargaining agreement. Evidence of these facts was admitted, over Respondent's objection, as "background," on the General Counsel's statement that "the evidence of domination and assistance of the company union by this respondent has material bearing upon the respondent's motivation for the discharge of Lemasters." In this posture of the proceedings, I should not be at liberty to recommend an order remedying a violation of Section 8(a)(2). Cf. Western Commercial Transport, Inc., 201 NLRB 17. To hold that Respondent could not lawfully request that Lemasters have the contract signed would he tantamount to invalidating the agreement for violation of Section 8(a)(2). Accordingly, while the evidence admitted as relevant to the Section 8(a)(3), allegation establishes an unalleged violation of Section 8(a)(2), I cannot find the independent violation of Section 8(a)(1) alleged in the complaint. CONCLUSIONS OF LAW 1. By discharging George W. Lemasters on March 15, 1973, and failing and refusing to reinstate him thereafter, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 2. It has not been established that Respondent has engaged in any other unfair labor practices cognizable in this proceeding. THE REMEDY Having found that Respondent discriminatorily dis- charged George W. Lemasters in violation of Section 8(a)(3) and ( 1) of the Act, I shall recommend that it be required to offer him full and immediate reinstatement with backpay, to be computed in the manner established in F. W. Woolworth Company, 90 NLRB 289, together with interest at 6 percent per annum in accordance with Isis Plumbing & Heating Co., 138 NLRB 716. In addition, I shall recommend a cease-and-desist and notice-posting order in the customary form. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDERS Respondent, Wade & Sons, Inc., Independence, Mis- souri, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in District Lodge No. 71, International Association of Machinists & Aerospace Workers, AFL-CIO, by discharging any employee or by discriminating in any other manner in regard to hire and tenure of employment or any term or condition of employment. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the right to self-organization, to form or join labor organiza- tions, and to engage in any other concerted activity for the purpose of collective bargaining or other mutual aid and protection, or to refrain from any or all such activities (except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act). 2. Take the following affirmative action, which it is found will effectuate the policies of the Act: (a) Offer George W. Lemasters immediate and full reinstatement to his former job, or, if that position is no longer in existence, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him, in the manner set forth in "The Remedy" section of this Decision. (b) Preserve and, upon request, make available to the Board or its agents , for examination and copying, all payroll records, social security payment records, timecards, personnel records, reports, and all other records necessary to analyze and compute the amount of backpay due under the terms of this Order. 9 In the event no exceptions are filed, as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Post at its plant in Independence, Missouri, copies of the attached notice marked "Appendix." 10 Copies of said notice, on forms provided by the Regional Director for Region 17, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 17, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges unfair labor practices other than those specifically found. 10 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." To form, join or help unions To bargain as a group through a representative of their own choosing To act together for collective bargaining or other mutual aid or protection To refuse to do any or all of these things. WE WILL NOT do anything that interferes with these rights. We assure all of our employees that WE WILL NOT discourage membership in District Lodge No. 71; International Association of Machinists & Aerospace Workers, AFL-CIO, or any other labor organization, by discharging any employee or discriminating in any other manner in regard to hire and tenure of employ- ment or any term or condition of employment. WE WILL offer George Lemasters full reinstatement and WE WILL compensate him, with interest, for any loss of earnings suffered by him as a result of our having discharged him on March 15, 1973. WADE & SONS, INC. (Employer) APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which all parties had the opportunity to present their evidence, it has been found that we violated the law and we have been ordered to post this notice about what we are committed to do. The National Labor Relations Act gives all employees these rights: Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of positing and must not be altered, defaced, or covered by any other material. Any questions concern- ing this notice or compliance with its provisions may be directed to the Board's Office, 616-Two Gateway Center, Fourth At State, Kansas City, Kansas 64101, Telephone 816-374-4518.