Coppinger Machinery Service, Inc.

COPPINGER•MACHINERY SERVICE 609 Baker Mine Services, Inc., d/b/a Coppinger Ma- chinery Service, Inc. and Shopmen's Local No. 715 of the International Association of Bridge, Structural and Ornamental Iron Workers and Coppinger Machinery Service Employees Orga- nization, Party in Interest. Case 9-CA-21202 28 April 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND STEPHENS On 16 August 1985 Administrative Law Judge David L. Evans issued the attached decision. The Respondent filed exceptions and a supporting brief.' The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order.2 The judge found that the Respondent violated Section 8(a)(2) and (1) of the Act by dominating and interfering with the formation and administra- tion of the Coppinger Machinery Service Employ- ees Organization (CMSEO), by giving effect to a collective-bargaining agreement between CMSEO and the Respondent, and by contributing financial and other support to CMSEO. The Respondent contends that the judge erred in these findings be- cause the complaint does not allege that the Re- spondent committed unfair labor practices by dominating and interfering with the formation or administration of CMSEO or by maintaining a col- lective-bargaining agreement with CMSEO. The Respondent further contends that these matters were not litigated at the hearing. The Respondent also contends that it did not unlawfully contribute financial or other support to CMSEO. We find merit in the Respondent's contentions. The complaint alleges in pertinent part that the Respondent unlawfully "rendered aid, assistance and support to CMSEO" by: i The General Counsel has filed a motion to strike the attachments (Apps A, B, and C) to the Respondent 's brief The motion is granted on the grounds that these appendices were not admitted into evidence at the hearing and therefore are not part of the record in this proceeding We note that considerations of these documents would deny the parties the opportunity for voir dire and cross-examination and would violate the Board's Rules See Sec 102 45(b) of the Board's Rules and Regulations S Freedman Electric, Inc, 256 NLRB 432 fn 1 (1981), Today's Man, 263 NLRB 332 (1982) 2 The Respondent has requested oral argument The request is denied as the record , exceptions, and brief adequately present the issues and the positions of the parties (a) Paying members of CMSEO's negotiat- ing committee for time spent negotiating the collective-bargaining agreement. (b) Printing and providing ballots at its own expense to CMSEO for the conducting of elections. (c) Allowing CMSEO to conduct, and unit employees to participate in, elections during working hours without loss of pay. (d) Giving advice to the CMSEO negotiat- ing committee during negotiations. (e) Meeting directly with employees to en- courage that they ratify the collective-bargain- ing agreement which it negotiated with CMSEO. It is evident that this complaint does not allege as unlawful domination in the formation or admin- istration of CMSEO and does not allege that the Respondent's recognition of CMSEO or its execu- tion and maintenance of a collective-bargaining agreement with CMSEO violated the Act. On the contrary, at the outset of the hearing, counsel for the General Counsel expressly represented to the judge and to the Respondent that the General Counsel was not alleging that the Respondent un- lawfully established or dominated CMSEO. Indeed, in response to the Respondent's comments regard- ing the limited scope of the complaint, the judge noted for the record that "I'm not going to litigate establishment" and noted further that the complaint alleged only unlawful assistance in certain respects within the 10(b) period as set forth above.3 3 The parties had the following discussion at the hearing JUDGE EVANS You didn't allege establishment here MR VERST (Counsel for the General Counsel) No I'm attempting to clarify it, for the Court It's going to be very brief, the back- ground at the Middlesboro, Kentucky facility, and the fact that while this Employer "may have benevolently" applied the Bluefield contract to the Middlesboro, they never-the Middlesboro, Ken- tucky never voted on it and never ratified it, et cetera As a matter of fact, from 1979 through 1983 their-while-well, let me back up Through '69, from '69 through '78, there was in op- eration at the Middlesboro, Kentucky facility, Judge, an employee association known as the Employees Association Now, that employee association ceased to exist on or about '78, and did not exist from '78 through '83 That becomes important be- cause it's our position that in April of 1984 this Employer revived, on its own , and designated the reoccurrence of that committee for bargaining purposes That goes directly to the unlawful assistance, Your Honor JUDGE EVANS It would go to establishment MR VERST Well, establishment initially, but, unlawful assistance in that they formed it, they designated it, they selected it, and they negotiated with it MR LAWSON (counsel for Respondent) That hasn't been alleged, Your Honor What has been alleged- JUDGE EVANS It hasn't been alleged If it were, it would be out- side of 10(b) MR VERST And, we're not seeking- JUDGE EVANS. No I'm not going to litigate establishment 279 NLRB No. 85 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Notwithstanding the scope of the matters alleged in complaint that were limited to specific forms of assistance and support to CMSEO, and the asser- tions made at the hearing by the General Counsel regarding the matters to be litigated , the judge con- cluded that "the limited nature of the pleadings" was immaterial. Accordingly, the judge found that the Respondent unlawfully dominated CMSEO in its formation and administration and by the execu- tion of a collective-bargaining agreement with CMSEO. Contrary to the judge, we find that the parameters of the complaint and the discussion of the parties at the hearing regarding the matters to be litigated are critical in determining whether we are empowered to address the question whether the Respondent dominated CMSEO. We agree with the Respondent that the issue of the Respondent's purported domination in the for- mation and administration of CMSEO and in the execution of a collective-bargaining agreement with CMSEO is not properly before the Board be- cause (1) the matter was not raised in the com- plaint; (2) the matter was not put in issue at the hearing; and (3) the General Counsel and the judge effectively assured the Respondent that "establish- ment" of CMSEO was not to be litigated. In these circumstances, it is evident that the Respondent was never advised of any need to present evidence pertaining to its purported domination of CMSEO4 either in its formation or administration and that these matters were not fully litigated.5 According- ly, we reverse the judge's findings that the Re- spondent unlawfully dominated and interfered with the formation and administration of CMSEO and unlawfully gave effect to a collective-bargaining agreement with CMSEO. We now turn to the allegations pleaded in the complaint and litigated at the hearing. In doing so we shall, of course, address these issues not from the judge's erroneous threshold estimation, based on his findings of unlawful domination, that the Respondent's conduct was directed toward "a union [that] has such spurious origins as CMSEO has here," but instead from the recognition that no allegation properly has been raised or litigated that the formation or administration of CMSEO was spurious or unlawful. The complaint, as set forth above, alleges five specific instances of unlawful aid, assistance, and 4 The Respondent presented no evidence pertaining to the formation, recognition , or administration of CMSEO It is not for us to speculate what evidence, if any, may have been presented if these matters had been pleaded and fully litigated 5 See, a g, Marathon LeTourneau Co, 256 NLRB 350 (1981), Electrical Workers IBEW Local 1186 (Honolulu NECA), 264 NLRB 712 fn 3 (1982) The cases cited by the judge at fn 10 of his decision are inappo- site inasmuch as the judge 's findings are based on matters that clearly were not fully litigated support. The judge found that the Respondent did not unlawfully give advice to the CMSEO during negotiations,6 but concluded that the Respondent violated Section 8(a)(2) and (1) by paying CMSEO negotiating committee members for time spent ne- gotiating a collective-bargaining agreement; by printing and providing ballots to CMSEO at its own expense for the conducting of elections; by al- lowing CMSEO to conduct, and unit employees to participate in, elections during working time with- out loss of pay; and by meeting directly with em- ployees to encourage them to ratify a collective- bargaining agreement negotiated with CMSEO.7 The record reveals that between 1 April and 17 August 1984, the Respondent's vice president Allen D. Coppinger met with CMSEO's negotiating committee on several occasions for the purpose of negotiating a collective-bargaining agreement. The committee members were paid their customary wages during negotiations and during committee meetings preceding negotiations. It is undisputed that Coppinger regularly announced over the Re- spondent's loudspeaker system that CMSEO com- mittee meetings were about to be conducted. The record further reveals that employees attended meetings with Coppinger during working hours without loss of pay to discuss the pending negotia- tions. Further, it is clear that the Respondent pre- pared and provided ballots used to ratify the agree- ment negotiated with CMSEO and paid employees their customary wages during time spent in partici- pating in the ratification election. As a general rule, the Board examines the aggre- gation of facts presented to it in assessing allega- tions of unlawful assistance. Janesville Products Di- vision , 240 NLRB 854 (1979). We conclude that the facts in this case do not establish that the Respond- ent engaged in acts of unlawful assistance. The use of company time and property in conec- tion with collective-bargaining negotiations does not per se establish unlawful assistance. Coamo Knitting Mills, 150 NLRB 579, 582 (1964). On the contrary, we have recognized generally that per- mitting the use of company time and property in such circumstances "serve[s] to permit an other- wise legitimate labor organization to perform its functions for the benefit of all concerned more ef- fectively than otherwise might be the case." Sunnen Products, 189 NLRB 826, 828 (1971). Similarly, we have held that permitting an em- ployee committee to hold biweekly meetings on paid time and on company premises to prepare for 6 No exceptions were filed to the dismissal of this allegation 7 The judge also found unlawful the Respondent's practice of announc- ing over its loudspeaker system that CMSEO committee meetings were to be held at certain times and places COPPINGER MACHINERY SERVICE 611 meetings with management, to conduct steward classes on company property with partial pay for employees involved, and to conduct elections on paid time do not violate Section 8(a)(2). Hesston Corp., 175 NLRB 96 (1969). It is also well settled that an employer, in addition to paying committee representatives for time spent on union committee business, permissibly may shoulder the cost of printing a collective-bargaining agreement. Ladish Co., 180 NLRB 582 (1970). Finally, we discern no impropriety under Section 8(a)(2) for an employer, as here, to meet with em- ployees in cooperation with the employees' bar- gaining representative for the purpose of discussing the bargaining process, or to inform employees of impending union committee meetings. In short, in the absence of probative evidence demonstrating the absence of an arm's-length rela- tionship between employer and union, properly liti- gated at the hearing,8 we can only construe the ac- tivities by the Respondent alleged to be unlawful as cooperation of a ministerial character growing out of an amicable labor-management relationship. Ac- cordingly, we shall dismiss the complaint in its en- tirety. sistance and support to Coppinger Machinery Service Employees Organization (CMSEO or the Committee). On 18 October Respondent filed its answer to the com- plaint; it admits jurisdiction and the status of certain su- pervisors, but it denies the commission of any unfair labor practices. A trial of this matter was conducted by me on 5 and 6 March 1985 in Middlesboro, Kentucky. Subsequent to the trial the General Counsel and Re- spondent filed briefs which have been carefully consid- ered. On the entire record, including my observation of the demeanor of the witnesses, and after careful consider- ation of the briefs filed by Respondent and the General Counsel, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent is a Kentucky corporation which main- tains an office and plant in Middlesboro, Kentucky, where it is engaged in the business of repair and distribu- tion of parts for mining machinery. During the 12 months preceding issuance of the complaint, Respondent performed services valued in excess of $50,000 in States other than the State of Kentucky. Therefore, Respondent is now, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. ORDER The complaint is dismissed. 8 Duquesne University, 198 NLRB 891 (1972), and H & H Plastics Mfg Co, 158 NLRB 1395 fn 3 (1966), cited by the fudge, are distinguishable In Duquesne unlawful support, domination, and interference with the ad- ministration of the employees' committee specifically were alleged in the complaint and litigated at the hearing In H if H, the complaint alleged unlawful domination and the parties litigated the manner in which the employer controlled the operations of the employees committee In the instant case, these matters neither were alleged as violative nor litigated at the hearing Damon W. Harrison Jr. and Edward C. Verst, Esqs., for the General Counsel. Mark M. Lawson, Esq. (White, Elliott & Bundy), of Bris- tol, Virgina, for the Respondent. Alan Killion, of Middlesboro, Kentucky, for the Party in Interest. DECISION STATEMENT OF THE CASE DAVID L. EVANS, Administrative Law Judge. On 28 August 19841 the instant charge under Section 8(a)(2) and (1) of the National Labor Relations Act was filed by Shopmen's Local No. 715 of the International Associa- tion of Bridge, Structural and Ornamental Iron Workers (the Charging Party). Complaint on the charge was issued on 11 October; it alleges that Baker Mine Serv- ices, Inc., d/b/a Coppinger Machinery Service, Inc. (Re- spondent) has violated the Act by rendering unlawful as- i All dates are in 1984 unless otherwise specified II. LABOR ORGANIZATIONS INVOLVED As admitted or stipulated by Respondent, the Charg- ing Party and CMSEO are, and have been at all times material , labor organizations within the meaning of Sec- tion 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Respondent's Middlesboro plant, which is the subject of the complaint, is one of two established by the Cop- pinger family. The first was founded in 1942 in Bluefield, West Virginia; the Middlesboro plant was founded in 1967. In 1981 Baker Mine Services, which is located in Bridgeville, Pennsylvania, acquired both plants. Allen D Coppinger III is vice president of Respondent and plant manager of the Middlesboro plant. Coppinger reports to Wally Harkness, president of Baker Mine Services. From 1969 to 1979 employees at the Bluefield plant, through an organization also named "Coppinger Machin- ery Service Employees Organization," negotiated succes- sive agreements with the Coppinger management. These agreements were collectively called the "Blue Book." During that decade the provisions of the Blue Book were placed into effect at the Middlesboro plant even though the employees at Middlesboro had no say in the negotiations . The Blue Book was not in effect at either plant after 1979 and there is no evidence of the existence of a "Coppinger Machinery Service Employees Organi- zation" after that year, either at Middlesboro or Blue- field, until the events of this case. Employee Alan Killion testified that on 1 April while he was welding, he was approached by Coppinger who asked him if he would serve on "the Committee." Killion 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD did not reply at first While he was standing there, saying nothing, Coppinger added, "the men need some kind [of] representation." Killion testified that after this last remark by Coppinger he agreed to serve on the Committee by saying, "I guess so."2 Killion testified that the reason that he "stalled" before replying to Coppinger was Because I [had] been on it before, and it was a hassle all the way around, from the men, from the company, the whole-you know, it was a problem. Killion testified that he found out later in the day that George McDowell and Mike Hansard had been appoint- ed to the Committee also. McDowell did not testify. Hansard testified that Coppinger also asked him to serve on the Committee. Hansard first stated he did not know if he would; he stood there for "a few minutes" and then agreed to serve. At the start of the trial Coppinger was called as an ad- verse witness by the General Counsel.3 Hansard and Kil- lion were present when Coppinger testified. Coppinger admitted that he did, in fact, appoint Killion, McDowell, and Hansard to a committee, but he testified that he only told the men that it would be a "safety committee." Han- sard and Killion were called to testify after Coppinger. They categorically denied that Coppinger told them that the Committee would be only a safety committee. In fact, they denied that safety was mentioned at all. As it turned out, the Committee which was appointed by Cop- pinger negotiated an agreement which covered all the employees' terms and conditions of employment, safety being only one. It is absolutely incredible that a commit- tee which was appointed by management to be a "safety committee" could have negotiated on any other term or condition of employment if it had not been manage- ment's intention that it do so. Negotiations by Coppinger and Harkness, as will be discussed infra, clearly show that management's intent was to establish a committee which would represent employees on all aspects of em- ployment. For this reason, and because it is unlikely that Hansard and Killion testified untruthfully against Cop- pinger whom they had just heard make the safety com- mittee claim,4 and because of the more credible demean- or of the employees, I discredit Coppinger's testimony that he intended to, and did, appoint only a safety com- mittee. The following day Coppinger posted a notice on a plant bulletin boardstating that Killion, Hansard, and McDowell were the employees' "committee."5 The notice stated that McDowell and Hansard were the em- ployee representatives for the machine shop and that Kil- lion was their representative for the welding shop. Ten days after this notice posting, Coppinger conducted a meeting of all employees. He testified that at that meet- 2 The Tr 142, 1 24, erroneously excludes the word "not " It is accord- ingly corrected to read that Killion testified that "I was still not too en- thused " 3 Respondent did not present a defense, rather, it rested on a motion to dismiss at the close of the General Counsel 's case in chief 4 See Georgia Rug Mill, 131 NLRB 1304 (1961) 5 The text of the notice was not offered into evidence ing he again told the employees that McDowell, Han- sard, and Killion were "members of the Committee." Coppinger disclaimed memory of anything else discussed at the meeting and no one else testified on the point. On 25 April Harkness, president of Baker Mine Serv- ices, and John Walsh, another corporate officer from Bridgeville, came to the Middlesboro plant to meet with the employees. Neither Harkness nor Walsh testified. Coppinger testified that Harkness and Walsh were there in response to an employee request that someone from the Bridgeville headquarters come to discuss job security and Respondent's financial situation in view of the take- over of Coppinger by Baker. Harkness and Walsh con- ducted two separate meetings of the employees; neither meeting was attended by Coppinger. Killion testified that during the meetings Harkness discussed employees' se- niority, Blue Book rules and regulations, the possibility of a wage increase, and "just other shop problems." Harkness told the employees to write down their ques- tions and suggestions and give them to the committee members, and they, in turn, would talk to Coppinger about them. (Killion further testified that employees did bring questions and problems to the Committee, although not in writing, and the Committee thereafter presented them to Coppinger in a subsequent series of meetings ) After Harkness and Walsh met with the employees, they met with Coppinger. According to Coppinger the pur- pose of the meeting was to bring him "up to date on what was generally discussed between [Harkness] and employees " Between 27 April and 6 August Coppinger met with the Committee on eight different dates for periods of one-half to 4 hours for a total of 18 hours During these meetings employee questions and grievances and all other terms and conditions of employment, including wages, were discussed by Coppinger and the Committee While these meetings were going on, Coppinger kept Harkness informed about the progress of the negotia- tions. On 26 July Harkness again came to the Middlesboro plant and presented a complete contract proposal to the Committee for the purposes of discussion After meeting with the Committee, Harkness met with the employees and distributed copies of the Respondent's proposal Later in the day the Committee took a ratification vote; by show of hands the employees voted to reject the pro- posal. The next day, 27 July, Killion notified Coppinger that the employees had rejected the proposal principally be- cause they did not like the seniority provisions After this report from Killion, Coppinger informed Harkness of the employees' rejection and the reasons for it Harkness prepared a new contract proposal and sent it to Coppinger for review by the Committee. Coppinger conducted a one-half-hour meeting on 6 August at which time he went over the proposal with the Committee. After this meeting Coppinger met with the employees and explained the new proposal and the effect of the changes which had been made. The employees told Cop- pinger, essentially, that what they really wanted were the seniority provisions of the 1979 Blue Book. Accord- COPPINGER MACHINERY SERVICE ing to his testimony, when called as an adverse witness by the General Counsel, Coppinger told the employees that "there were some time constraints" but they should take whatever time they needed to discuss the various proposals before they took another ratification vote.' The employees and Coppinger agreed that another ratifi- cation vote would be taken on 13 August at an hour to be announced that day Coppinger testified that on 13 August he let the Committee know that he could not be present for the voting, and it was "mutually agreed" to delay the ratification vote meeting until 14 August. On 14 August Coppinger met with the employees for purpose of taking another ratification vote Coppinger testified that he first explained to the employees that the seniority proposal had been changed to be the equivalent of the 1979 Blue Book. After this explanation he stayed while the employees discussed whether to allow one em- ployee to vote on behalf of his brother who was absent because of illness The employees voted to allow the working brother to cast the ballot for the sick one. Paper ballots, which were prepared in Respondent's office, were used to take the second ratification vote. The ballot stated simply "yes" and "no." The ballots were marked and the vote was 18 to 15 in favor of acceptance of the proposal Later that afternoon Coppinger was notified by tele- gram that the Charging Party was seeking to organize his employees. There is no evidence that Coppinger knew of any organizing effort by the Charging Party before this point, although the General Counsel did seek to introduce evidence of an organizational effort by an- other union at the Bluefield plant. On 16 August Coppinger and Respondent's vice presi- dent in charge of finances, Bob Posey, met with Hansard and McDowell and signed the agreement which was to be effective from 1 September 1984 to 31 August 1986.7 The agreement is 23 pages long; it covers all aspects of the employment relationship;' and it was stipulated that it has been in effect all the time since its signing. All of the above-described meetings between the Com- mittee and management , and the employees and manage- ment, were on paid time for the employees. Additionally, the Committee met with employees on four different oc- casions between 8 May and 20 June for periods of one- half hour to 2-1/2 hours. These meetings, which were for the purpose of communicating questions, grievances, and explanations of proposals, were also on paid time for the committee members and other employees. Finally, Respondent paid for at least one 4-hour meeting in which the committee members met only with themselves for the purpose of reviewing proposals and counterpro- posals According to Killion, in late April or early May, at one of the meetings of the committee members and the employees, one employee made the suggestion that the s The General Counsel argues that the "time constraints" referred to by Coppinger were the possibility that the Charging Party might file a petition for election at any time However , this is pure speculation as there is no evidence that Respondent knew of the Charging Party's orga- nizational efforts until 14 August as discussed, infra Killion signed it on 20 August after he returned from a trip Certain provisions of the contract will be discussed below 613 Committee should be "impeached" and an outside union should be sought to help the employees . On this sugges- tion Killion stopped the proceedings, acknowledged that the Committee had not been elected, and asked for a vote of confidence. By show of hands, the employees present voted that the Committee should continue nego- tiating. Killion testified that during the day following the vote of confidence he informed Coppinger of the results. Killion did not testify as to how many employees were present for the "impeachment" vote. Killion acknowledged that at no time before the con- tract was executed did the CMSEO have any constitu- tion, bylaws, or other governing rules of procedure; the employees paid no dues, and the CMSEO had no treas- ury or any other financial resources; and it met only on Respondent's premises on time paid for by Respondent. Killion was not asked if the CMSEO collected dues or had a treasury after the contract was signed However, Killion appeared as representative for CMSEO; presum- ably, if that organization, after the contract was signed, started to collect dues and had acquired a treasury, or adopted a constitution or bylaws, he would have brought it out. The structure and functions of CMSEO were in- cluded in the contract signed on 14 August, as discussed, infra. Analysis and Conclusions Section 8(a)(2) of the National Labor Relations Act declares that it is an unfair labor practice for an employ- er "to dominate or interfere with the formation or ad- ministration of any labor organization or to contribute fi- nancial or other support to it." Respondent admits that the Committee is a labor organization; and the only issue expressly drawn by the pleadings is whether Respondent "furnished financial or other support to the Committee." However, while it is not alleged as a violation, an em- ployer's appointing its employees' representatives and dictating what form their representation will take is the essence of domination and interference with formation of a labor organization,9 and the Board will not ignore this blatant violation of the Act dust because of the limited nature of the pleadings. 10 This year we celebrate the 50th anniversary of the pas- sage of National Labor Relations Act. After 50 years it seems a little late in the century to be required to say so, but Congress has determined that it is employees, and not employers, who should decide who collective-bar- gaining representatives will be and what form representa- tion will take. Here, Coppinger took it upon himself' i to 9 See citations below 10 See Fremont Mfg Co, 224 NLRB 597 (1976), enfd 558 F 2d 889 (8th Cir 1977), Homemaker Shops, 261 NLRB 441 , 442 in 5 (1982), enf denied 724 F 2d 335 (6th Cir 1984) See also Crown Zellerbach Corp., 225 NLRB 911 (1976), Alexander's Restaurant, 228 NLRB 165 (1977), enfd 586 F 2d 1300 (9th Cir 1978), and Pace Oldsmobile, 256 NLRB 1001 (1981), enfd 681 F 2d 999 (2d Cir 1982) i i There was no initiative among the employees to establish, or rees- tablish, a representational plan at Middlesboro Indeed, as their testimo- nies indicate , both Killion and Hansard were reluctant to accept their ap- pointments by Coppinger 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD decide that there would be two representatives from ma- chine shop and one from the welding shop. Then he named the committee members, giving the employees no voice in the selection. Nor was there any limit then12 placed on the duration of the appointments. That is, without any voice in the matter, and in direct contraven- tion of the Nation's labor policies as expressed in the Act, the employees were "stuck" with Coppinger's deci- sion of how many and who the representatives would be, and for how long they would represent them. The survival of the "impeachment" vote is meaning- less. The structure and composition of the Committee had already been established by Respondent, and the em- ployees would not, without Board remedy, feel free to argue with Respondent's choice. Moreover, assuming the impromptu "impeachment" vote was some kind of ex- pression of free employee sentiment, there is no evidence that the vote was by a majority of the unit employees. That is, there is no evidence that the Committee has ever represented a majority, unassisted or otherwise, of Re- spondent's employees, and there is no evidence that it represented anything except Respondent's choice for the employees' collective-bargaining representative. Appointing the representatives of employees is the es- sence of employer domination, and interference in the formation of a labor organization, under Section 8(a)(2) of the Act. Sound Technology Research, 221 NLRB 496 (1975), Divigard Baking Co., 153 NLRB 363 (1965), enfd. 367 F.2d 389 (2d Cir. 1966); Modern Plastics Corp., 155 NLRB 1126 (1965), enf. denied on other grounds 379 F.2d 201 (6th Cir. 1967); Dennison Mfg. Co., 168 NLRB 1012 (1967), enfd. 419 F.2d 1080 (1st Cir 1969); St. Joseph Lead Co., 171 NLRB 541 (1968); M-W Education- al Corp., 223 NLRB 495 (1976). Even suggesting to em- ployees that they select a certain number of representa- tives from their ranks, and stating that the employer would deal with such representatives, is unlawful inter- ference in the formation of a labor organization. C & W Lektra-Bat Co., 232 NLRB 776 (1977), Rideout Memorial Hospital, 227 NLRB 1338 (1977); Clapper's Mfg. Co., 186 NLRB 324 (1970), enfd. 458 F 2d 414 (3d Cir. 1971); Rupp Industries, 217 NLRB 385 (1975); Miller Materials Co., 244 NLRB 496 (1979). The contract negotiated by the Committee, as CMSEO,13 is further evidence of domination by Re- spondent. In the first place, the structure of the Commit- tee, the length of the terms of the committee members, and the methods for selecting successors were established in the contract; a maximum of six members, nominated by "respective departments," were to serve 12-month terms, after which elections were to be conducted,14 and the Committee is required to hold a meeting once a month. Being the product of negotiations, no change in the structure or operation of CMSEO could be made 12 This was later "negotiated" with the Committee 13 There was no testimony on how "the Committee" came to assume the name of "Coppinger Machine Service Employees Organization " This was also the name of the labor organization which negotiated the expired Blue Books at the Bluefield plant, as mentioned above 14 Also, in blatant violation of any committee member's Sec 7 right to refrain from union or concerted activity, the contract mandates that the old committee must serve until the new committee takes office " without Respondent's consent. This is a fundamental ele- ment of domination." Additionally, committee members were to be "from" each department; therefore, each member of the Committee had to be an employee. Thus, the Employer had the authority to dissolve the Commit- tee, or at least dilute its effectiveness, by exercising the powers of discharge and transfer. This factor has been held to be evidence of domination when the original structure of the labor organization was suggested by an employer, 16 when an employer appointed certain indi- viduals to represent certain areas in a plant, 17 or when the contract establishes internal election and voting pro- cedures. 18 All of these factors are present herein; there- fore, in these circumstances, Respondent's powers of dis- charge and transfer constitute further evidence of its domination of CMSEO. Domination is reflected by other provisions of the con- tract as well The grievance procedure requires individ- ual presentation of grievances at the first two steps19 with no assistance by CMSEO. The seniority provisions of the contract give Respondent the unilateral right to decide if employees are "qualified" for jobs, a factor which nullifies seniority rights in case of layoff. The salary provisions of the contract give Respondent the un- fettered right to pay above negotiated wage increases, an invitation to favoritism and discrimination. And the man- agement rights clause gives the Respondent opened- ended rights to perform "proper functions not specifical- ly listed herein." These contractual provisions constitute a textbook ex- ample of the harm that is done when an employer selects its employees' negotiators; that is, an employer is not likely to select negotiators who are effective from the employees' point of view, and that is what happened here. At minimum, the 16 August contract reflects less than arm's-length bargaining, and its provisions compel the conclusion that Respondent has dominated the Com- mittee in the "bargaining" process as well as in its origi- nal formation. Finally, the Board has viewed the power to postpone meetings as an indicia of domination. See Famco, Inc., 158 NLRB 111 (1966). Here, the most important meeting the CMSEO could ever conduct, the final ratification meeting, was postponed for 1 day for the sole reason that Coppinger could not attend. If a union cannot con- duct a ratification vote without the presence of the top management official in the plant, it is "dominated" in any, and every, sense of the word For these reasons, and on the authorities cited above and a multitude of other cases on the point, I find and conclude that Respondent has dominated CMSEO and 15 See Modern Plastics, supra 16 Clapper's Mfg Co , supra 17 Fire Alert Co, 182 NLRB 910 (1979) 15 Modern Plastics Corp, supra 19 Consistent with this requirement is a rule established at art III, Sec 4(c) that employees must take their grievances to their foreman rather than discuss them with their fellow workers Of course, maintaining rules prohibiting employees from discussing their terms or conditions of em- ployment, or grievances about such terms or conditions, is a blatant vio- lation of Sec 8(a)(1) Jeanette Corp, 217 NLRB 653 (1975) COPPINGER MACHINERY SERVICE has interfered with its formation, and I shall order Re- spondent to disestablish that labor organization. However, even if a remedy based on Respondent's domination of CMSEO is not permissible because of the limited nature of the pleadings, the actions of Respond- ent in creating the Committee and negotiating a contract which memorializes that domination are relevant back- ground for appraisal of the support allegations which are contained in the complaint.20 The complaint alleges that Respondent "rendered aid, assistance and support" to CMSEO by the following acts and conduct. (a) Paying members of CMSEO's negotiating committee for time spent negotiating the collective- bargaining agreement (b) Printing and providing ballots at its own ex- pense to CMSEO for the conducting of elections. (c) Allowing CMSEO to conduct, and unit em- ployees to participate in, elections during working hours without loss of pay. (d) Giving advice to the CMSEO negotiating committee during negotiations. (e) Meeting directly with employees to encour- age them to ratify the collective-bargaining agree- ment which it negotiated with CMSEO. There is no evidence that Respondent gave any "advice," as that term is usually used in case law, to CMSEO during the negotiations. Violations have been found where advice involves selecting an attorney, how to fight an unassisted union, or other such strategical matters Here, however, the General Counsel only argues that the Respondent gave advice at two points: the first was Coppinger's once telling the Committee that a proposal for a 22-percent wage increase would not be well received by Baker's management in Pennsylvania and that the proposal should be reduced; the second was Coppinger's meeting with employees to explain Respond- ent's proposals. Presumably, if the employees, through the Committee or otherwise, were going to ask for any- thing they were going to ask for more money. The re- sponse to their 22-percent request was no more than one bargaining agent telling another bargaining agent that his principal would probably not accept a proposal. This amounts to a prediction rather than "advice" on a course of action and does not constitute a violation in and of itself. Also, the meetings with employees to explain Re- spondent's proposals constituted campaigning among the employees, and will be dealt with below, but it was not "advice," as such, to the Committee Therefore, I shall recommend that this allegation of the complaint be dis- missed The matters of payment to committee members for ne- gotiating time, printing and providing ballots for the rati- fication of the vote, and paying committee members and 20 Instructive are Duquesne University, 198 NLRB 891 (1972 ), and H & H Plastics Mfg Co, 158 NLRB 1395 fn 3 (1966), enfd 389 F 2d 678 (6th Cir 1968) In both these cases establishment and domination occurred outside the limitations period of Sec 10 (b) of the Act and could not be made the basis for independent findings , however, such evidence was used as background to demonstrate the violative nature of the support which otherwise would have been viewed as permissible cooperation 615 employees for time spent meeting with each other, and time spent conducting the ratification vote fall within the instruction of Duquesne University, supra.2 t It is true, as Respondent points out in its brief, that this type of con- duct is normally considered no more than innocuous co- operation. However, as was the case in Duquesne Univer- sity, where a union has such spurious origins as CMSEO has here, the "cooperation" has a more pernicious effect. The employees know they are not working, and they know that "their" committee is not working but getting paid. They further know that they are being asked to do nothing more than acquiesce in what their employer has sponsored. Therefore, what would be viewed by the em- ployees as "cooperation" if the Committee had legitimate origins is viewed as part of an employer-sponsored, un- lawful, process. However, even if CMSEO had had le- gitimate origins, the payments to the committee members and employees constitute an unlawful element of support and control. When there are no dues, no membership re- quirements, no constitution, bylaws, or charter, and when employees are paid for meeting with their employ- er and "their" representatives, the labor organization in question has no real existence apart from its creating em- ployer; and by such monetary disbursements the labor organization is illegally supported (and dominated) by the employer. See Clapper's Mfg. Co, supra, and cases cited therein. Therefore, the payment for time spent ne- gotiating, meeting with the employees, and ratifying a contract, and the furnishing of ballots herein constitute unlawful acts of assistance to a labor organization in vio- lation of Section 8(a)(2) of the Act, as I find and con- clude. There is no testimony that Coppinger expressly urged employees to vote for ratification. However, as the Gen- eral Counsel argues in the brief, there was no purpose for Coppinger's meeting with the employees on 6 and 14 August if the appearances were not to persuade the em- ployees to vote for ratification. This was effective assist- ance to CMSEO. Once the contract was ratified, the as- sisted Union had a putative contract to assert as a bar to any effort by a legitimate union to obtain a Board-con- ducted election Therefore, I agree with the General Counsel that Coppinger's presence at these ratification meetings constituted further acts of support within the meaning of Section 8(a)(2) of the Act. Finally, another element of support of CMSEO was Respondent's practice, as Coppinger admitted, of an- nouncing over the loudspeaker system that committee meetings with employees were to be held at certain times and places.22 Such announcements clearly demonstrated to all employees that Respondent sponsored and ap- proved of the Committee and what it was doing. As such, these announcements constitute another element of assistance and support of CMSEO in violation of Section 21 See also St. Joseph Lead Co, supra, Ampex Corp, 168 NLRB 742 (1967), enfd 442 F 2d 82 (7th Cir 1971), Farmers Energy Corp, 266 NLRB 722 (1983), enfd 730 F 2d 1098 (7th Cir 1984) 22 Although this particular practice was not specifically included in the complaint as an element of Respondent's unlawful support , it is clear- ly within the purview of the pleadings and properly the subject of find- ings and conclusions herein See Crown Zellerbach Corp, supra, Alexan- der's Restaurant, supra, and Pace Oldsmobile, supra at fn 10 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 8(a)(2) of the Act. Kaiser Foundation Hospitals, 223 NLRB 322 (1976). CONCLUSIONS OF LAW 1. Respondent is engaged in commerce, and the Charging Party and the Coppinger Machine Service Em- ployees Organization are labor organizations within the meaning of the Act. 2. By dominating and interfering with the formation and administration of Coppinger Machine Service Em- ployees Organization and contributing financial and other support to the labor organization , and by giving effect to the agreement executed 16 August 1984 by and between Respondent and the labor organization, Re- spondent has violated Section 8 (a)(2) and ( 1) of the Act. 3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE ent described in section I, above , have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(2) and (1) of the Act, I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative actions designed to effectuate the polices of the Act. Because it has been found that Respondent has dominated , as well as assisted, the Coppinger Machine Service Employees Organization, I shall also recommend that Respondent completely disestablish the labor organization at its Middlesboro, Kentucky facility. [Recommended Order omitted from publication.] Respondent's activities set forth in section III, above, occurring in connection with the operation of Respond-