Universal Fuel, Inc.

National Labor Relations Board - Board Decisions

Sep 27, 2012

358 N.L.R.B. 1504 (N.L.R.B. 2012)

1504 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
358 NLRB No. 150
Universal Fuel, Inc. and International Association of
Machinists & Aerospace Workers, AFL–CIO,
District Lodge 4. Case 05–CA–034622
September 27, 2012
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN
AND BLOCK
On October 20, 2009, Administrative Law Judge Eric
M. Fine issued the attached decision. The Respondent
filed exceptions with supporting argument, the Acting
General Counsel filed an answering brief, and the Re-
spondent filed a reply 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,1 and conclusions as
modified and to adopt the recommended Order as modi-
fied and set forth in full below.2
1. We agree with the judge, for the reasons discussed
in his decision, that the Respondent, Universal Fuel, Inc.,
violated Section 8(a)(5) and (1) of the Act by engaging in
overall bad-faith bargaining with the Union. Thus, as the
judge found, in the course of initial contract negotiations,
the Respondent:

 opposed the Union’s proposal on union security
for purely “philosophical” reasons, without ad-
vancing any legitimate business justification;
 late in negotiations, reneged on several tentative
agreements previously reached with the Union,
and made regressive proposals concerning those
matters without good cause;
 also late in negotiations, introduced new and
unpalatable proposals on subcontracting and
picketing without any legitimate business justi-
fication;

1 The Respondent has implicitly excepted to some of the judge’s
credibility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear pre-
ponderance of all the relevant evidence convinces us that they are in-
correct. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 In accordance with our decision in Kentucky River Medical Center,
356 NLRB 6 (2010), we shall modify the judge’s recommended Order
to require that backpay and/or other monetary awards shall be paid with
interest compounded on a daily basis.
We shall also modify the judge’s recommended Order to provide for
the posting of the notice in accord with J. Picini Flooring, 356 NLRB
11 (2010).
 insisted on negotiating over a permissive bar-
gaining subject, the amount of fees to be paid
under a proposed agency shop arrangement;
 withdrew its October 8 and November 6 con-
tract proposals because the Union had not ac-
cepted either in time for the proposal to be ap-
proved by the United States government pursu-
ant to the Service Contract Act of 1965;3 and
 falsely informed employees that union security
was the only issue preventing agreement, and
cast blame on the Union.

As did the judge, we find that the Respondent’s con-
duct, viewed in its entirety, indicates that the Respondent
was bargaining without a sincere desire to reach a collec-
tive-bargaining agreement. See, e.g., NLRB v. Reed &
Prince Mfg. Co., 118 F.2d 874, 885 (1st Cir. 1941), cert.
denied 313 U.S. 595 (1941).4 Unlike the judge, however,
we find it unnecessary to determine whether any of the
individual acts just described was unlawful in and of
itself. Instead, the Respondent’s conduct, as a whole,
supports the judge’s determination that the Respondent
was not bargaining in overall good faith and thereby con-
stitutes a violation of Section 8(a)(5).5
2. We turn now to remedial issues. We shall order the
Respondent to cease and desist and to bargain in good
faith. In agreement with the judge, we shall also extend
the certification year for 1 year.6
3. In addition, as recommended by the judge, we shall
order the Respondent to reinstate its October 8, 2008
bargaining proposal for a reasonable period of time and
to sign a contract incorporating the terms of that proposal
if the Union accepts it. See TNT Skypack, Inc., 328
NLRB 468, 469–470 (1999), enfd. 208 F.3d 362 (2d Cir.
2000); Mead Corp., 256 NLRB 686, 686–687 (1981),
enfd. 697 F.2d 1013 (11th Cir. 1983). There is no merit
in the Respondent’s contention that such a remedy will
contravene the Supreme Court’s decision in H. K. Porter
Co. v. NLRB, 397 U.S. 99 (1970), or Section 8(d) of the
Act. In adopting this portion of the judge’s Order, we
are not imposing contract terms on the parties without
their consent. If the Union accepts the proposal, it is one
that the Respondent “formulated and voluntarily of-
fered.” Mead Corp., 256 NLRB at 687. The Respondent

3 41 U.S.C. 351 et seq., recodified without material change at 41
U.S.C. 6701 et seq., Pub. L. 111–350, 124 Stat. 3677 (Jan. 4, 2011).
This point is discussed further below.
4 In reaching this conclusion, we find it unnecessary to rely on the
Respondent’s refusal to continue holding bargaining sessions exclu-
sively in Maryland.
5 Indeed, that appears to be the Acting General Counsel’s theory of
the case.
6 The Respondent did not file an exception to this recommendation.
UNIVERSAL FUEL, INC. 1505

can hardly contend that it is being forced to make a con-
cession within the meaning of Section 8(d) by being re-
quired to accept the terms of its own offer. Id. And, of
course, if the Union rejects the October 8 proposal, the
parties will continue bargaining toward agreement.
Nor is there merit to the Respondent’s contention that
it should not be required to reinstate its October 8 pro-
posal because (for reasons explained below) it may not
be able to secure reimbursement from the Federal Gov-
ernment for the wage rates incorporated in that proposal
if the Union accepts it.7 When the Respondent engaged
in bad-faith bargaining in the weeks leading up to the
original deadline for reimbursement, it effectively creat-
ed the uncertainty of which it now complains. Board law
is clear that the Respondent, as the wrongdoer, must bear
the burden of this uncertainty. See TNT Skypack, Inc.,
328 NLRB at 470. We are not persuaded that the Union
breached some equitable duty that would now foreclose
an otherwise appropriate statutory remedy for the Re-
spondent’s unfair labor practice. The Respondent still is
free to seek retroactive approval of the wage rates, if the
Union accepts the October 8 proposal.
4. We do not, however, adopt the portions of the
judge’s remedy and recommended Order requiring the
Respondent to bargain “at locations in reasonable prox-
imity to the bargaining unit” and according to a schedule
of the judge’s devising.8 The Respondent’s negotiators
made at least three trips from the Respondent’s head-
quarters in Alabama to Maryland, where six bargaining
sessions were held at the Union’s training center near the
Respondent’s Patuxent River facility. We are not per-
suaded that the Respondent must continue to incur all the

7 As a contractor covered by the Service Contract Act, the Respond-
ent is required to pay at least minimum rates set by area wage determi-
nations, for which it is reimbursed by the government contracting agen-
cy. If the Respondent and the Union agree on wages and benefits that
are higher than the area minimum, and incorporate the higher rates in a
collective-bargaining agreement, the Government will reimburse the
Respondent for the higher rates if the contracting officer finds that
those rates are reasonable. For the Respondent to receive compensation
for the higher rates set forth in the Respondent’s October 8 proposal,
however, the parties would have had to submit the collective-
bargaining agreement to the contracting officer by December 1, 2008.
Although the parties had not reached a contract on November 6, the
Respondent asked the Union to join the Respondent in requesting the
contracting officer to incorporate the tentatively agreed-on wages and
benefits into the new area wage determination for December 1, but the
Union refused. In these circumstances, the Respondent urges that it
would inequitable for the Board to require it to pay the higher than area
standard rates contained in the proposal because it would not be com-
pensated by the Government for the rates in excess of the area mini-
mum.
8 The judge ordered the Respondent to bargain “on request within 15
days of the issuance of a Board Order for a minimum of 24 hours per
month and at least 6 hours per session, or any other schedule mutually-
agreed upon between the Respondent and the Union.”
burdens of traveling for negotiating purposes, especially
given that the Union is part of a large International union
that presumably is able to shoulder some of those bur-
dens. Indeed, when the Respondent informed the Union
after October 8 that it would not return to Maryland, but
would be willing to meet with the Union in Alabama, the
Union promptly agreed. In these circumstances, we find
it sufficient instead to order the Respondent to meet with
the Union at a mutually acceptable location.9
Nor do we find it appropriate to order the Respondent
to bargain according to the judge’s recommended sched-
ule. The Respondent met with the Union on six occa-
sions prior to November 6. At those sessions, the parties
exchanged proposals and reached tentative agreements
on a number of subjects. There is no allegation, and no
evidence, that the Respondent dragged its feet in sched-
uling bargaining sessions, canceled sessions without val-
id reasons, agreed to meet only for brief periods of time,
failed to send representatives with authority to conclude
agreements, or engaged in any other kinds of dilatory
tactics. The vice in the Respondent’s conduct lies not in
the difficulty of getting the Respondent to the bargaining
table, but in what it did once it got there. We are reme-
dying the latter conduct, and that it all that is required
here. We shall modify the judge’s recommended Order
and notice accordingly.
ORDER
The National Labor Relations Board orders that the
Respondent, Universal Fuel, Inc., Patuxent River, Mary-
land, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain in
good faith with International Association of Machinists
& Aerospace Workers, AFL–CIO, District Lodge 4 (the
Union) as the exclusive collective-bargaining representa-
tive of the employees in the bargaining unit set forth be-
low.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain in good faith with the Union as
the exclusive collective-bargaining representative of the
employees in the following appropriate unit concerning
terms and conditions of employment and, if an under-

9 We nevertheless find that the judge appropriately ordered the Re-
spondent to reimburse the Union for the costs and expenses it incurred
in traveling to Alabama to attend the November 6, 2008 bargaining
session. Reimbursement for that travel is based on the Respondent’s
conduct at that session, not the mere location of that session.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1506
standing is reached, embody the understanding in a
signed agreement:

All full-time and regular part-time Mechanics, Mechan-
ic Helpers, Drivers, Fuel Distribution/Drivers, LOX
Plant Operator, Lox Plant Lead, Supply Tech (Supply
Clerk), Account Clerk II (Gas Station Operator,
MDGAS (MOGAS) Operator), and Dispatcher Driver
Operators employed by the Respondent at its Patuxent
River NAS facility; but excluding all office clerical
employees, professional employees, guards, and super-
visors as defined in the National Labor Relations Act.

(b) Reinstate its October 8, 2008 contract proposal and
afford the Union a reasonable period of time to accept
that offer or to make counterproposals, and if an agree-
ment is reached, sign a contract, with retroactive pay and
benefits based on the wage and benefit rates contained in
that offer, making employees whole in the manner de-
scribed in the remedy section of the judge’s decision, as
modified in this decision.
(c) Reimburse the Union for costs and expenditures re-
lated to the November 6, 2008 negotiation session, in the
manner set forth in the remedy section of the judge’s
decision, as modified in this decision.
(d) Within 14 days after service by the Region, post at
its Patuxent River, Maryland facility copies of the at-
tached notice marked “Appendix.”10 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 5, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees
are customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. If the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since November 6, 2008.

10 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.”

(e) Within 21 days after service by the Region, file
with the Regional Director for Region 5 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the certification of the
Union issued by the Board on February 8, 2008, is ex-
tended for a period of 1 year commencing from the date
on which the Respondent enters into negotiations with
the Union.
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 fail and refuse to recognize and bargain
with International Association of Machinists & Aero-
space Workers, AFL–CIO, District Lodge 4 (the Union)
as the exclusive collective-bargaining representative of
our employees in the bargaining unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, on request, bargain with the Union as the
exclusive collective-bargaining representative of our
employees in the following appropriate unit concerning
terms and conditions of employment and, if an under-
standing is reached, embody the understanding in a
signed agreement:

All full-time and regular part-time Mechanics, Mechan-
ic Helpers, Drivers, Fuel Distribution/Drivers, LOX
Plant Operator, Lox Plant Lead, Supply Tech (Supply
Clerk), Account Clerk II (Gas Station Operator,
MDGAS (MOGAS) Operator), and Dispatcher Driver
Operators employed by us at our Patuxent River NAS
facility; but excluding all office clerical employees,
professional employees, guards, and supervisors as de-
fined in the National Labor Relations Act.

UNIVERSAL FUEL, INC. 1507

WE WILL reinstate our October 8, 2008 contract offer
and afford the Union a reasonable period of time to ac-
cept that offer or to make counterproposals, and if an
agreement is reached, WE WILL sign a contract with retro-
active pay and benefits based on the wage and benefit
rates contained in that offer, making employees whole in
the manner described in the Board’s decision.
WE WILL reimburse the Union for costs and expendi-
tures related to the November 6, 2008 negotiation ses-
sion, in the manner set forth in the Board’s decision.

UNIVERSAL FUEL, INC.

Patrick J. Cullen, Esq. and M. Anastasia Hermosillo, Esq., for
the General Counsel.
Chris Mitchell, Esq., of Birmingham, Alabama, for the Re-
spondent.
Brian Bryant, Grand Lodge Representative, of Cincinnati,
Ohio, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ERIC M. FINE, Administrative Law Judge. This case was tried
in Washington, D.C., on April 22 and 23, 2009. The charge
was filed on November 13, 2008, by the International Associa-
tion of Machinists and Aerospace Workers, AFL–CIO, District
Lodge 4 (the Union) against Universal Fuel, Inc. (Respond-
ent).1 The amended complaint alleges Respondent violated
Section 8(a)(5) and (1) of the National Labor Relations Act (the
Act) by failing to bargain in good faith by its overall conduct
and by: reneging on tentative agreements that all job assign-
ments, promotions, layoffs, and recalls would be controlled by
seniority; reneging on tentative agreements that discipline and
discharge would be for just cause; making regressive proposals
regarding seniority; introducing the issue of subcontracting late
in negotiations; refusing to accede to union-security provisions
because of philosophical objections; adhering to its proposal on
union security and dues checkoff that would set, by contract,
the amount of fees paid by nonmember employees despite the
Union’s continued refusal to bargain over this permissive sub-
ject; making contract proposals that denied employees the right
to picket under all circumstances; making contract proposals
contingent upon approval by the United States Government and
withdrawing those proposals because the Union did not accept
them in time to be approved by the United States Government;
and on or about November 7, falsely informing employees that
the only issue preventing agreement with the Union was union
security.
On the entire record,2 including my observation of the de-
meanor of the witnesses, and after considering the briefs by the
General Counsel and the Respondent, I make the following3

1 All dates are 2008, unless otherwise specified.
2 The General Counsel’s unopposed motion to correct the transcript
dated June 5, 2009, is granted.
3 In making the findings herein, I have considered all the witnesses’
demeanor, the content of their testimony, and the inherent probabilities
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, with its principle office and place
of business in Daleville, Alabama, and an office and place of
business at that Naval Air Station Patuxent River (NAS Pax
River), located in Patuxent River, Maryland, has been engaged
in the business of refueling military aircraft for the United
States Navy, at NAS Pax River, pursuant to a contract with the
United States Government Department of Defense. During the
past 12 months, a representative period, Respondent, in con-
ducting its business operations described above has been en-
gaged in providing services to the United States Government
valued in excess of $50,000. Respondent admits and I find it is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act, and that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Following an election held on January 30, in which the Un-
ion won by a vote of 22 to 5, the Union was certified on Febru-
ary 8, as the exclusive collective-bargaining representative of
Respondent’s employees in the following unit appropriate for
bargaining:

All full-time and regular part-time Mechanics, Mechanic
Helpers, Drivers, Fuel Distribution/Drivers, LOX Plant Oper-
ator, Lox Plant Lead, Supply Tech (Supply Clerk), Account
Clerk II (Gas Station Operator, MDGAS (MOGAS ) Opera-
tor), and Dispatcher Driver Operators employed by Respond-
ent at its Patuxent River NAS facility; but excluding all office
clerical employees, professional employees, guards, and su-
pervisors as defined in the National Labor Relations Act.

There were three witnesses who testified during this pro-
ceeding. For the Union, Joseph Compher and Anthony Provost
appeared as witnesses. Compher is a business agent, who had
worked for the Union since 1996. He served as lead negotiator
for the Union at negotiations with Respondent, save for the last
session on November 6. Provost, at the time of the hearing,
worked for the International Association of Machinists and
Aerospace Workers, Eastern Territory, as a special representa-
tive. Provost served as lead negotiator for the Union at the
November 6 session, which was also attended by Compher.
Provost had worked for the Union since 1993, in different posi-
tions.4 Chris Mitchell also testified. Mitchell served as chief
spokesperson for Respondent during all the negotiation ses-
sions, and he has been a practicing labor attorney since 1973.
Mitchell has provided legal services for Respondent since some
time in the 1970s, and Respondent has had its contract to

of the record as a whole. In certain instances, I have credited some but
not all of what a witness said. See NLRB v. Universal Camera Corp.,
179 F. 2d 749, 754 (2d Cir. 1950), revd. on other grounds 340 U.S. 474
(1951). Further discussions of the witnesses’ testimony and credibility
are set forth herein.
4 I found Compher and Provost to be credible witnesses and to have
testified as to events as best they could recall them. I have credited
their testimony as set forth in this decision, unless otherwise stated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1508
perform work at NAS Pax River since some time in the
1970s.
John Crawford is Respondent’s president. Charles Evans is
Respondent’s general manager at NAS Pax River. Mitchell’s
testimony reveals Respondent employs about 15 full-time
and16 or 17 part-time employees in the above bargaining unit
at NAS Pax River. Respondent is covered by the Service Con-
tract Act (SCA), which results in area wage determinations by
the Department of Labor setting minimum rates for which Re-
spondent pays its unit employees. Mitchell testified that if the
Respondent and the Union agree to a collective-bargaining
agreement and submit it to the government contracting officer
in a timely manner, the contracting officer will, if the terms of
the contract are reasonable, accept the contract rates and incor-
porate them into the area wage determination as the basis for
the wages and benefits for the employees covered by the
agreement. The collectively bargained rates and benefits, if
approved, can be above the area standard rates, and Respondent
would be compensated by the Government for the higher ap-
proved rates. The parties stipulated that all parties were aware,
during negotiations, that Respondent had to submit any agreed
upon collective-bargaining agreement to the contracting officer
by December 1 of any given year, in order for Respondent to
receive reimbursement for collective-bargaining agreement
rates paid to employees that are above the area wage standard
rates.5 There was nothing to prevent Respondent from paying
its employees above the area standard rates, although the Gov-
ernment will not reimburse Respondent for those higher pay-
ments unless they are incorporated in an approved collective-
bargaining agreement.6
The Union requested to begin bargaining by letter, dated
March 3, from Compher to Crawford. Mitchell’s testimony
reveals negotiations began on June 24. Mitchell testified that
all the sessions, except for November 6, were held in Maryland,
at the Union’s training center, which is located a few miles
from NAS Pax River. Mitchell testified the parties met at that
location on June 24, 25, and 26, July 24, October 7 and 8.
Mitchell testified that Mitchell, Crawford, and Evans attended
all of the negotiation sessions for Respondent, except Crawford
was not present on June 24. He testified Compher was the
Union’s chief spokesperson and he attended all the sessions.
Also in attendance for the Union at the Maryland sessions were
two of Respondent’s employees, and another individual whose
status Mitchell did not know. The parties’ last session was held
on November 6, in Birmingham, Alabama. It was attended by
Mitchell, Crawford, Evans, and John Byrd, one of Respond-
ent’s owners, and Provost and Compher for the Union. Wil-
liam McFadden, a Federal mediator, also attended the Novem-
ber 6 session.
Mitchell identified a handwritten proposal which, absent the
obvious insertions and modifications, was presented to the Un-

5 Compher testified Mitchell informed him of the December 1 date
early in negotiations.
6 Compher testified that, in addition to Respondent’s employees, the
Union represents employees of other employers at the NAS Pax River,
including units at DynCorp International; L-3 Communications; East-
ern GCR; and at Sikorsky Aircraft. Compher testified the Machinists
Union also represents employees at Boeing and Lockheed Martin.
ion by Respondent on June 24 and 25. Mitchell’s bargaining
notes for the June 24 session reveal that a tentative agreement
was reached that date for Respondent’s proposal on seniority,
which provided that promotions and job assignments shall be
based on seniority. Mitchell’s notes and testimony reflect that
layoffs and recalls by seniority were amended into the proposal
on June 24, and were included as part of a tentative agreement
on seniority. Mitchell’s notes for the June 25 session reveal
that there was a tentative agreement on seniority, which is sec-
tion VI of Respondent’s June 24 contract proposal.7 Mitchell
testified it was his recollection that there was a tentative agree-
ment that all promotions, job assignments, layoffs, and recalls
shall be based on seniority, provided that the senior employees
could perform the work.
Mitchell’s notes for the June 24 session state at page 4, “Sec-
tion VIII—agreed to change ‘good and proper’ to ‘just’ cause.”
Section VIII refers to Respondent’s proposal on discipline and
discharge. Mitchell testified that Respondent agreed to change
its proposal containing a “good and proper” standard to use the
“just cause” standard on June 24, pertaining to discipline. He
testified that in his view discharge is a form of discipline.
Mitchell testified that as of the end of the October 8 bargaining
session, the “just cause” standard for discipline was not an open
issue. Compher testified they never talked about the just cause
discipline and discharge standard from the time it was agreed to
in June until the November 6 session.
Mitchell testified that during the October 7 session Mitchell
stated Respondent was at about 90 percent of where it could go
on wages and benefits and they needed to move negotiations
along because they were getting toward a position where they
needed to make and would be making a final offer.8 Mitchell
testified union security was discussed on October 7, and that it
was discussed in every session. Mitchell testified the Union’s
proposal on union security never changed from their initial
proposal that was sent to Mitchell a few days before the first
meeting. Mitchell testified that on October 7, Mitchell made
the statement that the Union’s proposal on union security was
not acceptable. Mitchell testified, “I believe I said that it was
dead, and spelled out the letters, d-e-a-d.” Mitchell testified he

7 Compher testified his notes reflect that there was a tentative agree-
ment on seniority on June 25, and that layoffs and recalls by seniority
were added to Respondent’s initial proposal as part of the agreement.
He testified there was an admission by Respondent that they always
had layoffs and recalls by seniority in that Crawford and Evans told the
Union that layoffs had been made by seniority. There is a discrepancy
in the bargaining notes of Compher and Mitchell and as to their testi-
mony about layoffs and recall, with Compher stating and his notes
reflect that the past practice was layoff and recall by seniority, and
Mitchell stating there had never been a layoff. Compher testified that
Crawford and Evans told the Union across the table that all promotions,
job assignments, and training assignments were made by seniority as
part of Respondent’s past practice, and I have credited this aspect of
Compher’s testimony. There is a dispute between Mitchell and
Compher’s notes as to the date of the first meeting, with Compher’s
notes stating it was June 23 and Mitchell’s notes stating it was June 24.
Any references to a June 23 or 24 meeting in this decision are referring
to the same meeting.
8 Mitchell’s October 7, notes state twice “When do you want us to
make you our Final proposal?”
UNIVERSAL FUEL, INC. 1509

said Respondent was willing to consider a compromise between
its position on union security and the Union’s position, but that
the Company was not willing to accept the Union’s position.
Mitchell testified the Union made two responses to that. He
testified Compher said that he did not see how the Union could
make any compromise in that it had made its minimum offer on
union security. Mitchell testified that union committee member
Delahay “was a little more colorful and said that the Union’s
proposal was not d-e-a-d, it was a-l-i-v-e and would be in the
final agreement.”9
Mitchell testified that, during the October 8 session,
Compher explained the Union’s ratification process. He testi-
fied this was done in connection with Respondent saying they
were prepared to make their final offer. Towards the end of the
day on October 8, Mitchell asked the Union to give the Com-
pany their position on all open items. Compher responded to
the request. Mitchell’s notes reflect the five open items listed
by the Union were union security, pay for stewards while inves-
tigating grievances, the cost of various examinations and li-
censes, the grievance procedure and what issues could be taken
to arbitration, and shoe allowance and how frequently the
Company would replace employees’ shoes. Mitchell testified
he then asked the Union to give Respondent all open issues in
priority order and Compher listed eight: a request to reclassify
all truckdrivers to be fuel supply distribution operators, which
would have given them a substantial pay increase; union securi-
ty; arbitration language; pay for lead persons; pay for boiler
tenders; shift differential pay; safety shoes; and dispatcher pay.
Mitchell testified that at the end of the day on October 8, Re-
spondent made a last and final offer by a verbal presentation.
Mitchell testified the Union replied that if Respondent would
accept their proposal on union security and change several oth-
er items, including some of the pay items they could buy the
committee’s support and they would encourage the employees
to ratify the agreement. Mitchell testified the Union’s proposal
was rejected and Respondent stated its last and final offer
stood.
Compher denied that Mitchell stated Respondent was mak-
ing its last and final offer during the October 8 session.
Compher testified he asked Mitchell on October 8 if the offer
was Respondent’s last and final offer and Mitchell would not
reply. Compher testified the Union did not take the offer back
for ratification because they did not have a tentative agreement

9 Compher testified he recalled Mitchell objecting to the Union’s un-
ion-security proposal on October 7, but could not recall if it was stated
that it was “D-e-a-d” spelling out the word. Compher testified that he
did not recall union negotiating committee member responding it was
a-l-i-v-e. However, he testified it may have happened as negotiations
were contentious. Compher testified as follows when questioned by
Mitchell:
Q. Do you recall me telling you that there was room for com-
promise between the company’s position and the union’s position
on union security?
A. I recall telling you that—yes, I recall telling you that there
was nowhere for us to go. This was proposed by the rank and
file. I do recall telling you that.
Compher testified that employees selected the Union’s union-security pro-
posal language during contract proposal meetings held by the Union.
pending ratification. He testified that they had time to continue
bargaining and that, at that time, they had not even used the
services of the FMCS.
Compher sent Mitchell an email dated October 10, request-
ing the resumption of negotiations during the week of October
13 to 18. Compher went on to state, “The Union is also re-
questing the assistance of the Federal Mediation and Concilia-
tion Services and will contact them for assistance and hope that
you will agree also. As we have in the past the Union will pro-
vide a meeting place at the Union facility at no cost to the par-
ties.” Mitchell sent an email to Compher dated October 15,
stating, “As promised, attached is an updated proposal that
incorporates all agreements reached to date and sets forth the
Company’s position on any open items. This represents an
excellent contract for the employees, and we are prepared to
present it to the Contracting Officer at any time.”10
I do not credit Mitchell’s claim, over Compher’s denial, that
on October 8, Mitchell told Compher that Respondent’s Octo-
ber 8 offer was Respondent’s last an final offer. Mitchell tend-
ed to testify in a somewhat ambiguous fashion. Moreover,
there is no notation in either Mitchell’s or Compher’s October 8
notes that Mitchell informed Compher on October 8 that
Mitchell had presented Respondent’s last and final offer on that
date. Both individuals were experienced negotiators and it is
likely they would have recorded such a statement in their notes
if it had been said. Moreover, the emails following the October
8 session, also do not support a statement that Respondent had
stated it made its last and final offer on that date. In this regard,
by email dated October 10, Compher requested a resumption of
bargaining with the assistance of a Federal mediator. Most
significantly, Mitchell sent a written version of the October 8
offer to Compher in an attachment to an email, dated October
15. While Mitchell described the offer in the email, he never
labeled it as a final offer in the email. It would seem that he
would have done so, if that was the case. Finally, Respondent
made a new proposal on November 6, the very next bargaining
session.
The proposal Mitchell sent Compher via email dated October
15 is entitled, “COMPANY PROPOSAL AS OF CLOSE OF
NEGOTIATIONS ON OCTOBER 8, 2008.” It states at the top
of page 2, where the substantive language begins that “((TA)
means Tentatively Agreed).” It is stated in Respondent’s Octo-
ber 8 proposal under SECTION V MANAGEMENT RIGHTS
that:

UFI has and shall retain all rights and discretion to
plan, direct, and control all operations and to make all
necessary and appropriate decisions to carry on the busi-
ness of the Employer, unless a decision made or an action
shall conflict with or violate an express term of this
Agreement.

Included in the October 8 proposal under SECTION VI Union
Security is the following:

10 Mitchell attached to his October 15 email a written version of Re-
spondent’s offer made verbally during the October 8 negotiation ses-
sion. Respondent’s written offer emailed on October 15, is referred to
herein as Respondent’s October 8 offer.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1510
Employees shall remain free to join or refrain from
joining the Union and to pay or refrain from paying union
dues or fees or assessments. Neither the Employer nor the
Union will coerce any employee in the exercise of these
rights. The Union can send a designated representative to
the Employer’s premises one day a month for the purpose
of collecting dues or other charges. The Employer will not
interfere with this process.

Included in the October 8 proposal under SECTION VII
SENIORITY, is the following:

All promotions, job assignments, layoffs, and recalls
shall be based on seniority provided that the senior em-
ployee is qualified and available to perform the work in
question. (TA)

In the October 8 proposal under SECTION IX DISCIPLINE &
DISCHARGE, it is stated, “All discipline will be imposed for just
cause.” Included in the October 8 proposal under SECTION XI
STRIKES & LOCKOUTS, it is stated, “There will be no strikes or
lockouts of any kind during the term of this Agreement.”
Compher responded to Mitchell’s October 15, email-by-
email dated October 16, in which Compher stated, “As I indi-
cated in my e-mail, the Union is prepared at any time to resume
negotiations as requested. Without our proposed Union Securi-
ty, we will not take it back to our members for ratification.”11
Compher testified the next and final bargaining session was
held on November 6, in Birmingham, Alabama. Compher testi-
fied that when they last met on October 8, Respondent indicat-
ed they were not going to come back to Maryland. Compher
testified that, following the October 8 session, Compher sought
Federal Mediator McFadden’s assistance in having Respondent
return to Maryland to resume negotiations. Compher testified
that McFadden told Compher that Respondent would not come
back to Maryland, but Respondent was not opposed to the Un-
ion coming to Alabama. After discussing it with Compher’s

11 The Union’s proposal on union security included the following
language:
(A) All employees in the bargaining unit must as a condition of con-
tinued employment be either a member of the Union and pay union
dues or pay an agency fee to the Union, but not both.
(B) All employees within the bargaining unit on the effective date of
this agreement who are not union members must, as a condition of
continued employment, pay to the Union while on the active payroll,
an agency fee equal in amount to monthly membership dues, . . . .
. . . .
(D) Any employee required to pay an agency fee, membership dues,
or initiation or reinstatement fee as a condition of continued employ-
ment who fails to tender the agency fee or initiation, reinstatement, or
periodic dues uniformly required, shall be notified in writing of his de-
linquency. A copy of such communication shall be mailed to the
Company not later than fifteen (15) days prior to such request that the
Company take final action on delinquency. The Company will within
ten (10) workdays, after receipt of notice from the Union, discharge
any employee who is not in good standing in the Union or fails to pay
applicable agency fees as required by paragraphs A-D of this Article.
Any employee so discharged shall be deemed to be discharged for
“just cause”. “Good standing” is defined as in compliance with stand-
ards permitted by NLRB and court decisions relating to Union shop
requirements.
superiors, the Union agreed to meet in Alabama. Compher
requested, through McFadden, that they meet that week. How-
ever, McFadden informed Compher that Respondent agreed to
meet on November 6.12
Compher testified that he and Provost were paid by the Un-
ion for preparation time for the November 6 session, and they
were paid for time spent during negotiations. He testified if he
had not gone to Alabama, he could have attended to other union
business. The Union paid for their flight, meals, rental car,
parking, and hotel rooms in Birmingham. The Union paid for
the bargaining meeting suites. Compher testified he asked
McFadden to make arrangements for the parties to meet at the
FMCS office in Birmingham. However, McFadden could not
secure space there. McFadden informed Compher that Re-
spondent offered to have negotiations at their law firm.
Compher testified it is a large law firm, and he felt intimidated
about holding negotiations there. Compher testified he asked
Respondent to split the cost of a meeting room at a neutral fa-
cility, but McFadden told him Respondent refused to pay any
cost.
Compher testified that, prior to the November 6 session, the
parties had reached many tentative agreements, including:
recognition; on seniority, on jury duty, vacations, and holidays,
and on discipline and discharge. Compher testified they had
reached a tentative agreement on fringe benefits. They had
reached a tentative agreement “on the wage aspects.” He testi-
fied they had also reached a tentative agreement on shift differ-
ential. Compher testified that if something was not marked TA
by the parties, it did not mean there was no tentative agreement.
Compher testified that on November 6, “certainly the biggest
issues that were left open was the union security. There was a
job reclassification that was left open. There was certainly the
grievance and the arbitration provisions were left open. Shoe
allowance, what was left open. You know, that’s some of the
things that was still left open.” Compher testified that none of
these subjects were tentatively agreed to on November 6.
Provost testified that, prior to going to Birmingham, he met
with Compher concerning Respondent’s October 8 proposal,
and they went through the six to eight open items. Provost
testified the open items were the grievance procedure and arbi-
tration; the no strike no lockout provision; the effective date of
the contract, the shoe allowance; and a couple of other items.
Provost testified union security was still open and there was a
major problem with that issue.
Provost testified bargaining began on November 6, by he and
Compher arriving at the hotel and then waiting for the Re-
spondent, as one of the members of Respondent’s team was
late.13 Provost testified that when they started the meeting,
Provost identified himself, and they went over the issues that he

12 Compher’s testimony that Respondent refused to return to Mary-
land was not denied.
13 Provost testified that technically he was the chief spokesman for
the Union during the November 6 session, since he is above Compher
in the Union’s hierarchy. However, he let Compher continue to assume
that role and tried to assist Compher to obtain a conclusion on the con-
tract.
UNIVERSAL FUEL, INC. 1511

and Compher believed were open.14 Provost testified they went
into a discussion on union security. Provost testified Mitchell
“made a claim that the Union had the ability to negotiate rates
on the union security, on the pay, and he was kind of elusive,
wouldn’t tell me where he got his information, so I stepped out
and made a phone call.” Provost testified Mitchell made the
comment at the beginning of the meeting, while Provost was
reviewing the items the Union believed were open. Provost
testified that, at that time, Respondent had not made any new
proposals.
Provost testified that at 10:45 a.m. on November 6, the Un-
ion received a document from Mitchell labeled, “COMPANY
PROPOSAL B.” It is stated on the cover page of the docu-
ment: CHANGES: (1) Section V; (2) Section VI; (3) Section
VII—one sentence; (4) Section IX; (5) Section X; and (6) Sec-
tion XI. Provost testified that at the time the Union was ten-
dered Company Proposal B no one from Respondent told the
Union that Respondent’s October 8 proposal was still on the
table. The changes in Company Proposal B are set forth below.
In SECTION V MANAGEMENT RIGHTS, the following
provision was added:

These rights of management included the following:
(1) to subcontract all or part of the operation, (2) to make
job assignments and promotion and staffing decisions in
the interest of efficient operations, (3) to schedule work
and change hours of operation and shift schedules to meet
the needs of the Navy, (5) to determine the equipment to
be used, (5) to determine and direct work methods and
process, (6) to assign, require, and distribute overtime
work, (7) to discipline and discharge employees, (8) to lay
off and recall employees, (9) to establish and enforce work
rules and safety rules. These rights are listed only as ex-
amples and do not include or represent all management
rights.

SECTION VI UNION SECURITY, included the following new
provisions:

All nonprobationary employees in the bargaining unit
must be either a member of the Union and pay union dues
or pay an agency fee to the Union, but not both.
All nonprobationary employees within the bargaining
unit who are not union members must pay to the Union
while on the active payroll an agency fee equal in amount
to fifty percent (50%) of monthly dues to cover the cost of
collective bargaining and contract administration. Em-
ployees entering the bargaining unit or employees who are
rehired with seniority or transferred with seniority into the
bargaining unit after the effective date of this Agreement
who do not become union members, or having become do
not remain union members, must while on the active pay-
roll, pay such fee to the Union.
Employees who are union members shall pay an
initiation fee and membership dues to the Union
while in the bargaining unit and on the active payroll

14 The first page of Mitchell’s notes for November 6, state “7 unre-
solved issues.”
as long as they remain members of the Union; pro-
vided that in no event shall the initiation fee and
membership dues exceed the amount specified in the
Constitution and/or By-Laws of the Union.
The Company agreed to deduct from an employ-
ee’s payroll check, Union dues, initiation fees, or
agency fees for all employees covered by this
Agreement, provided that the Union or the employee
delivers to the Company a written authorization to
make such deductions, signed by the employee, ir-
revocable for one year or the expiration date of this
Agreement, whichever shall occur sooner.
Such payroll deductions shall be remitted to the
Secretary Treasurer of the Union the week immedi-
ately following the week the payroll deductions are
made.

SECTION IX DISCIPLINE & DISCHARGE, contained the fol-
lowing provision:

The Company retains the right to discipline and dis-
charge employees as an inherent right of management.
Any employee or the Union can challenge any disciplinary
action imposed upon proof that the discipline imposed was
arbitrary, capricious or discriminatory.

With respect to SECTION XI STRIKES & LOCKOUTS, the
following provision replaced the one contained in the October 8
proposal:

There will be no strikes or lockouts of any kind during
the term of this Agreement. There will be no picketing of
any kind by employees represented by the Union, and such
employees will cross any picket lines in order to report to
work or perform their job assignments.

Provost testified that they took a break for the Union to re-
view Proposal B and when the Union returned from its review
of the document, “We went through the changes of the sections
where they made the changes.” Provost testified there was a
discussion about the changes to union security at that time. He
testified, “Basically, he’s trying to make the claim that we had
the ability to negotiate changes in the fees, agency fees that
would be that the members would have to pay if—you know, if
we had an agreement, there would be a minimum amount of 50
percent.”
Provost testified that after Mitchell reviewed the changes, the
parties took a break. Provost testified, “[W]e kind of had to
take a break because we went there believing there was six to
eight issues open, and when we got this document, all of a sud-
den it became like 15 because there were some changes made;
in my belief, was regressive bargaining. So when we went
back, we pointed that out to the company, and Rick did it, and
he was extremely upset.” Provost testified he also told the
Respondent it was regressive. Provost testified Respondent
gave no response to his assertion. Provost testified that during
the discussion, Compher told Mitchell that subcontracting was
never an issue until today. Provost testified that Mitchell did
not say anything in response to that comment. Provost testified
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1512
he asked Mitchell why they had to have a subcontracting clause
because it was basically not allowed under a service contract in
that they have to get a special permission from the Navy to do
anything like that. Provost testified you are dealing with fuel
for the jets and with the security clearance that it takes to even
get near these planes, it is not something they can just say we
are going to call a sub in here to go do some work. They have
to follow the military regulations for clearances. Provost testi-
fied he did not get a response to that question stating, “I was
making a statement, sir, basically to them and letting them
know what we believed was wrong.” Provost testified, “I
didn’t get a response to almost any of my questions, Your Hon-
or.”
Provost testified that, after the break, they discussed union
security with Respondent. Provost testified, “I was trying to
find out where he was getting his information.” Provost testi-
fied Mitchell kept “making a claim that the Union had the abil-
ity to negotiate increases or decreases in agency fees. We told
him, one thing is it’s illegal—Beck, General Motors Beck rul-
ing.” Provost testified that he said that it was he who made that
claim. Provost testified, “I also told him that it goes against our
constitution, and for us to negotiate something outside of what
the constitution is, is also illegal. The constitution is set up by
delegates, and I explained this to the Company, that the dele-
gates from every local in the IM, which is 500, over 500 locals,
meet every four years to come up with our constitution. And in
that constitution they set the guidelines on what’s allowed, you
know, what we run by. So when we go out and organize or we
negotiate contracts, we have to follow it in those guidelines of
that constitution. For us to go outside of them would violate it
and in turn would allow somebody to go to the Department of
Labor and file charges against us.” Provost testified concerning
Respondent’s response, “All they said was they believe we had
the ability to negotiate that change. He said that to me more
than once.”
Provost testified Mitchell did all of the talking for Respond-
ent. Provost testified that during the meeting, both he and
Compher asked Mitchell more than once if he would be inter-
ested in talking to the Union’s general counsel concerning Re-
spondent’s proposal on union security, or to the Union’s inter-
national president. Provost testified Mitchell did not respond to
that offer. Provost testified that on November 6, the Union
never said or insisted that nonmembers pay 100 percent of
dues. He testified that the Union’s proposal on union security
did not require that they do so.15

15 During his testimony, Provost was shown by Mitchell and he iden-
tified a contract NAS Patuxent River where Provost served as lead
negotiator for the Union with DynCorp International LLC. The signa-
ture page is dated September 12, 2007. The union-security clause in
that contract contains a provision stating, “Union membership is re-
quired only to the extent that employees must pay either (i) the Union’s
initiation fees and periodic dues or (ii) service fees which in the case of
a regular service fee payer shall be equal to the Union’s initiation fees
and periodic dues or, in the case of an objecting service fee payer, shall
be the proportion of the initiation fees and dues corresponding to the
proportion of the Union’s total expenditures that support representa-
tional activities.” Mitchell testified he did not recall where he obtained
Provost admitted that the Union’s written proposal on union
security to Respondent did not say anything about proportional
dues for objectors. However, Provost testified:

THE WITNESS: Your Honor, he would not hear of it.
We tried to offer—just like I stated earlier, we offered that
to him to come to closure. If he was so concerned with the
employees not having to pay dues that didn’t want to pay,
we told him—and Rick testified to this, and I told him the
same thing, that we would teach them how to show em-
ployees to become objectors through the Beck disclosure.
And he would not have one thing to do with it.
. . . .
JUDGE FINE: Did you make another proposal aside
from the written proposal?
THE WITNESS: Not in writing, but we did make a ver-
bal proposal.
JUDGE FINE: Did you make a verbal?
THE WITNESS: Yes, we did, sir.
JUDGE FINE: And what was your verbal proposal?
THE WITNESS: That we would help him, if he had his
concerns—
JUDGE FINE: Help Mr. Mitchell?
THE WITNESS: Mr. Mitchell and the company to show
the people that had these concerns, they didn’t want to pay
dues, how to become objectors, perfected objectors or
nonmembers, and he would not respond to those two items
at all, not at all. And we offered that more than once, sir.

Provost testified that, at no time during the November 6
meeting, did anyone from Respondent state that the Octo-
ber 8 proposal was still on the table. Provost testified that
at the end of the November 6 meeting there were addition-
al open issues besides union security, including: the griev-
ance and arbitration procedure; the no strike/no lockout
clause; the shoe allowance and subcontracting. Provost
testified, “The Company left the subcontracting provision
in there. That wasn’t even an issue until that day.”
Provost denied telling Mitchell during the meeting that
he did not have to worry about withdrawing Proposals A
and B because neither would be accepted by the Union.
Provost testified that Mitchell asked Provost if there was a
requirement that the Union bring Proposal B back to the
members, and Provost told him there was no requirement.
Provost testified that, during the meeting, Mitchell “had a
smirk on his face because technically I don’t think he
cared what I had to say, but I wanted to say it anyway.
And I made a comment to him that it would be like me
going to Alabama, which is a right-to-work state, and
locking up every contract in there with a union security
clause, which is illegal in that state. Him asking us to
open up, having an open shop inside of a facility that’s all
closed shops was like asking me to give him my first
born.”

a copy of the DynCorp contract, stating it was in a file of mine labeled,
“Union Contract Proposal.”

UNIVERSAL FUEL, INC. 1513

Provost testified Respondent’s November 6 changes re-
ally upset the Union because they were changes to prior
tentative agreements. He testified, “They also made some
changes that upset me because there were provisions that
the people in there enjoy, that the Company followed prior
to the Union ever even organizing them, and they re-
gressed from them and took them provisions away, like
layoff and recall. If there was a layoff or recall, they al-
ready admitted that if there was one, they go by seniority,
prior to negotiating it with us. And the same thing with
promotions.”
Compher also testified the November 6 meeting was to begin
at 9 a.m., but that Respondent arrived late, and that the session
started close to 10 a.m. and it ended around 2:15 p.m.
Compher testified that once they were at the table, the mediator
opened up the bargaining session by stating his role and setting
forth the major issues keeping the parties apart. He testified
then there was a caucus. When the union officials returned to
the room, Respondent gave them a proposal that was labeled on
its face and identified by Mitchell as Proposal B at around
10:45 a.m.16 Compher testified the union officials were very
upset by Proposal B. He testified the proposal went back on
prior tentative agreements and added new language not previ-
ously discussed. Compher explained Respondent made regres-
sive proposals in seniority and discipline and discharge, where
there had been prior tentative agreements. Compher testified
that for lack of a better word, “I was pissed.” Compher testi-
fied the Union had agreed to Respondent’s request to come a
long way by coming to Alabama. He testified, “We were there.
And we didn’t have much time to get this thing done, and it
was pulled out from underneath our feet.”
Compher testified the parties had not tentatively agreed to
management rights prior to November 6, “but—and I could tell
you what the company had on the table in October was fine
with us, and I indicated to that across the table. It wasn’t an
issue. It was not highlighted by either party on October the 8th
on what the outstanding issues were.”
Compher testified when Proposal B was given to the Union
“things got contentious.” Compher testified, “I said this is a
crock of shit. We come all the way here and you wanted to pull
back on proposals, things that we already agreed to. I said this
is—my words were—.” “I said this is a bunch of bullshit. I
said we have already agreed to tentative agreements long—you
know, before even coming down here in the process of negotia-
tions. Now you want to pull them back, pull the rug out and
renege on deals and agreements that we had?” Compher testi-
fied that Mitchell had no response. Compher testified that
Mitchell did not say anything about the prior proposals still
being on the table.
Compher testified Respondent’s November 6 proposal “took
away seniority being the factor with job assignments, with
layoffs, with recalls.” Compher testified this was discussed at
the table and it was very contentious. He testified, “I specifi-
cally wanted to know why, you know, again, this is bullshit,

16 Compher initially testified it was identified as plan B, but correct-
ed his testimony stating it was Proposal B. Compher also referred to
the document as “Plan B” at various points in his testimony.
you know, why are you taking away things that have already
been agreed to, things that are already done currently, today?
This is regressive, going backwards, you know, this is nothing
more than what they’re doing today, we agreed to, and it was
very contentious.” Compher testified as follows:

JUDGE FINE: What was the response?
THE WITNESS: There was none.
JUDGE FINE: No explanation?
THE WITNESS: Not that I can recall, sir.

Compher testified it was asked by the Union at the November 6
meeting, “Why are you pulling off things again that we agreed to
for discipline and discharge for just cause.” Compher testified,
“The Company said you want things, we want things. That’s all
they said.” Compher testified Mitchell made the statement.
Compher testified there was a lot of yelling and screaming about
this at the meeting.
Compher testified Respondent’s November 6 proposal intro-
duced new subjects into the management-rights clause, includ-
ing subcontracting. Compher testified that on November 6,
there was discussion of the subcontracting proposal. He testi-
fied, “We were vehement why they were including things into
this management’s rights clause as far as subcontracting. That
was not discussed prior to these negotiations, that was never an
issue, and again, it was very—.” Compher testified he thought
the Union received the same response from Mitchell, which
was that “you want things, we want things.”
Compher testified Respondent’s November 6 proposal ad-
dressed union security. He testified, “It was the major discus-
sion of that day.” Compher testified it was the first time the
Union had seen a proposal where employees who object to
being full dues-paying members pay a specified percentage of
an agency fee. Compher testified, “I explained very simply to
Mr. Mitchell across the table that we can’t bargain this percent-
age, it’s illegal. If you don’t believe me, here is my attorney’s
or general counsel’s name and number and here’s our interna-
tional president’s name and number, if you don’t believe me
that we cannot bargain this. I offered that up to Mr. Mitchell.”
Compher testified that during the November 6 meeting, the
union officials made the statement that negotiating the amounts
agency fee payers paid was illegal because it violated the Un-
ion’s constitution and bylaws. Compher testified Mitchell gave
no response.
Compher testified that, during prior bargaining sessions,
Mitchell had told Compher that Respondent had “philosophical
differences” about having a union-security provision in the
contract. Compher testified, “Mr. Mitchell had always stated to
me, across the table, on numerous occasions, that he had a phil-
osophical difference with employees having to pay dues.”
Compher testified that was the only reason Mitchell gave in
objecting to the Union’s proposal on union security. Compher
could not recall the dates it was said, but he testified it was
stated many times at more than one bargaining session.
Compher testified in negotiation sessions prior to November 6,
the Union told the Respondent the employees had a right not to
join the Union, and that they did not have to pay full dues. He
testified that on November 6, the Union told Respondent that
the Union would assist the employees on how to apply to be-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1514
come an agency fee payer or objector. Compher testified, “We
told them we can’t bargain any types of percentage because it’s
illegal. And I believe at that time Mr. Mitchell made the state-
ment he believes that we can convince our higher-ups, whatev-
er that—.”
Compher testified that during negotiations, the Union never
demanded that an objector pay 100 percent of dues. Compher
testified the Union sends employee objections to full dues pay-
ments to the Union’s headquarters, to the general secretary’s
department, and they figure out how much the objector has to
pay for collective-bargaining representation. He testified,
“[T]hat’s the part of what we were trying to tell the Company
we would help them do, guide them in the right direction.”17
Compher testified that dues checkoff was in Respondent’s Pro-
posal B. However, Compher could not recall whether it was
discussed on November 6. Compher testified it was the per-
centage on union security that was driving the talks.18
In reviewing, proposal B, section 11, Compher testified that
picketing had not been discussed by the parties prior to No-
vember 6. Compher could not recall if picketing was discussed
on November 6. Compher testified, “I was just disturbed with
this percentage, union security and all these changes. I can’t
recall—.”
Compher testified that on November 6, after the Union
raised objections to Proposal B, Respondent modified its offer.
Compher testified that when Respondent came back from their
second caucus on November 6, they said layoff and recall
would be by seniority, and the discipline and discharge would
be for just cause. However, Compher testified promotion and
job assignments by seniority were not put back on the table.
Compher testified the Respondent also offered to raise the fees
paid by objectors from 50 to 75 percent of dues. Compher
testified the Union stated they could not bargain this. Compher
testified the Union again offered for Mitchell to talk to the Un-
ion’s general counsel and the Union’s international president,
but Mitchell declined.
Compher testified that, after the Union raised objections to
the November 6 proposal, Respondent did not inform the Union
that the October 8, proposal was still on the table. He testified
that no one from Respondent informed the Union that October
8 proposal was still on the table when the modified version of
Proposal B was presented. Compher testified Respondent’s
officials never said anything about the October 8 proposal the
entire day. He testified that between November 6 and Decem-
ber 1, no one told him that the October 8 proposal was still on

17 Compher testified the Union explained to Respondent many times
during negotiations that the agency shop clause the Union proposed
was a proposal that came from the rank and file employees. Compher
testified the employees made the selection of the proposed provision
during a contract proposal meeting conducted by the Union.
18 Compher testified the Union proposed dues checkoff before No-
vember 6. He testified Respondent did not agree to it. He testified
Respondent had previously proposed that once a month the Union
could go down to the facility and solicit the collection of dues.
Compher testified he responded that it was illegal to go on to a Federal
facility and solicit dues. Compher testified he told Mitchell that
throughout negotiations. Compher could not recall if Mitchell ever
gave an explanation as to why Respondent opposed dues checkoff.
the table. Compher testified that no one explained to him at the
table why Respondent labeled the November 6 proposal as
Proposal B.
Compher testified the Union never agreed to accept the mod-
ified version of Proposal B, if Respondent would accept union
security. Compher testified he never told Respondent that if the
Company would agree to 100-percent nonmember agency fees,
the Union would agree to a contract. Compher testified that
would be illegal. Compher testified they could not negotiate a
percentage of what the dues objector has to pay, that it was
against the Union’s constitution. Compher explained that under
the Union’s constitution they “had to refer them—any dues
objector has to go to the General Secretary—we cannot bargain
that. It’s illegal.” Compher testified as follows:

Q. By Ms. Hermosillo: Were there other reasons,
aside from union security, that the union did not want to
agree to the modified version of Proposal B?
A. Well, other reasons was the change in the seniority.
I mean, we hadn’t even gotten to other discussions as far
as the grievance arbitration. We didn’t get to discussion
with shoes. There was other open issues that we had high-
lighted that we came down to talk about and never even
got the opportunity to talk about.

Compher denied that Mitchell made the statement at the end of the
November 6 session, that both of the Company’s proposals were
being withdrawn or would be withdrawn effective December 1.
Compher testified that Mitchell never made the statement that he
was going to withdraw either proposal on November 6.
Compher testified that during negotiations from June through
November, the Union only made one proposal on union securi-
ty. Compher testified the agency fee referenced in the proposal
is not equal to the amount of dues. Compher credibly testified
that, while there is nothing the proposal that says the agency fee
would be reduced, it was explained to Mitchell several times
across the table. Compher testified they talked about the agen-
cy fee payer from day one. Compher testified Mitchell asked
him what it meant and Compher explained it in its entirety.
Compher testified, “I explained to you exactly what our pro-
posal was, and I explained to you several times during negotia-
tions, if any employee wanted to object to paying dues, we
would tell them how to go, where to go, and what to do. I ex-
plained to you that several times. You can’t dispute that.”
Compher could not recall whether on November 6, the Un-
ion presented Respondent with a counterproposal on strikes and
lockouts, stating, “We may have.” Compher testified he did not
submit a written proposal to Mitchell on November 6, concern-
ing strikes and lockouts. He testified Provost may have ten-
dered such a proposal, that he did not know. Compher testified
a marked up version of a strikes and lockout provision was not
presented back to him on November 6. However, Compher
testified he may have seen the proposal that day.
Mitchell testified the meeting on November 6 started with
some discussion on union security. He testified that McFadden
said it was his goal to bring this matter to a conclusion and
there were six or seven unresolved issues. Mitchell’s notes
UNIVERSAL FUEL, INC. 1515

state there were seven unresolved issues.19 Mitchell testified
there was some discussion pertaining to the zipper clause con-
tained in Respondent’s October 8 proposal, then there was
more discussion of union security and that the Union had to
have union security. Mitchell testified that Respondent took a
caucus, and presented Company Proposal B. Mitchell testified,
“I said that our first proposal was still on the table and Proposal
B was presented as an option.” Mitchell testified in reference
to the first proposal that he was referring to the October 8 pro-
posal which he labeled at the hearing as Proposal A. When
asked if he labeled it as Proposal A during negotiations, Mitch-
ell testified, “I think at some point I did probably use the term
Plan A, but I think initially I did not. I think initially I referred
to it as just the company’s last offer, which it was at that point,
the company’s last and final offer, the October 8 proposal.”
Mitchell testified that, during the November 6 meeting, they
went through Proposal B. He testified the changes identified on
the front page of Proposal B were changes that had been made
to the October 8 proposal. Mitchell testified the Union ex-
pressed dissatisfaction with it. After the discussion, the Union
took a caucus and came back and identified specific parts of
Proposal B that the Union wanted changed. Mitchell testified
there was discussion of subcontracting with the Union asking
why it was there. Mitchell testified, “I said that it was put in
there for no specific reason, but simply because it was—that
management’s rights proposal was taken from another docu-
ment and it was plugged in there. That document had subcon-
tracting on it. There was a question about what could or would
Universal Fuel subcontract, and I said I couldn’t think of any-
thing other than perhaps the mechanical work exception. If
Universal Fuel had ever gotten a contract to do mechanical
work of some type. But that was not anticipated.” Mitchell
testified there was no further discussion of subcontracting dur-
ing the meeting. Mitchell testified when the Union came back
from their caucus they presented their counterproposal to Pro-
posal B, and at that time they did not request any change in the
language on subcontracting. Mitchell testified subcontracting
had not been discussed prior to November 6.
Mitchell testified the Union’s counterproposal was part writ-
ten and part verbal. He testified the Union stated concerning
proposal B, section 5: item 2, they wanted job assignments,
promotions, and staffing decisions to be based on seniority;
item 7, they wanted discipline and discharge to be for just
cause; and item 8, they wanted layoffs and recalls to be by sen-
iority. Mitchell testified that as to section 6, the Union stated
they would not agree to 50 percent of monthly dues for agency
fee payers and that it had to be 100 percent. The Union went to
section 7 and said that they wanted the prior language about job
assignments, promotions, layoffs, and recalls inserted there. As
to section 9, the Union wanted just cause reinserted for disci-
pline and discharge. Concerning the grievance procedure, the
Union wanted the language that was contained in the October 8

19 Mitchell testified that, prior to the meeting, Mitchell was told by
the mediator that the Union would never accept any contract proposal
in the state of Maryland that did not have mandatory payment of dues.
Mitchell testified that based on the mediator’s remarks and in consulta-
tion with his client, Mitchell prepared Proposal B.
proposal reinstated. He testified the Union also presented a
written proposal to replace section 11, strikes and lockouts.
Mitchell testified Respondent then took a caucus over lunch,
and came back and made a counterproposal to the Union’s
counterproposal. Respondent’s counterproposal was for the
most part verbal, but Respondent also marked up the Union’s
no strike proposal and gave it back to the Union as a counter-
proposal. He testified the things Respondent agreed to change
included making layoff and recall decisions by seniority, dis-
charging employees only for just cause, changing the no strike
language by making alterations to the Union’s written proposal
and thereby dropping the no picketing language contained in
Respondent’s Proposal B, and pertaining to union security in-
creasing the agency fee payer amount to 75 percent of dues.
Mitchell testified the Union took a caucus, came back, and
said that they could not and would not accept any offer that did
not have 100 percent of dues for agency fee payers. Mitchell
testified that was the only thing discussed after the caucus. He
testified, “I’m not saying the Union may have had other disa-
greements with the final version of Proposal B. But the only
differences that were expressed at the table were 75 percent
versus 100 percent.” There was some discussion and the par-
ties said they were not going to change their positions on that
subject. Mitchell testified the mediator stated it was too bad the
parties were so close but could not reach agreement. Mitchell
testified that, at that point, in order to protect Respondent from
getting caught in a timeliness issue, he stated that Proposals A
and B would be withdrawn if not accepted by December 1.
Mitchell testified Provost stated Mitchell did not have to worry
about that because neither of those proposals were going to be
accepted. Mitchell testified there have been no requests for
meetings after November 6.
Mitchell testified Respondent’s Proposal B made on Novem-
ber 6, made changes to items that had previously been tenta-
tively agreement to by the parties. He testified that Proposal B
when first given to the Union contained as a management right
that job assignments, promotions, and staffing positions were to
be done in the interest of efficient operation. It also included
layoff and recall as a right of management. Mitchell testified
that under Respondent’s preexisting work conditions work
assignments were controlled by seniority for part time employ-
ees. Mitchell testified the general practice is to take the Navy’s
flight schedule posted on the board, and the part-time employ-
ees can sign up for the open shifts based on seniority. Mitchell
testified full-time employees work a more fixed schedule and
their job assignments are determined by that schedule. He testi-
fied it was his understanding that seniority is used as a factor in
determining the schedule of full-time employees. Mitchell later
testified, “[I]f the gist of the question is, in the past, has the
Company generally applied seniority principles in a nonbinding
sort of way to assign jobs, the answer to that is yes.”20

20 Mitchell testified that he believed he stated in his prehearing affi-
davit in presenting Proposal B to the Union that he told the Union that
the Respondent was looking for more management security in ex-
change for union security and that this was the reason that seniority was
removed as a consideration for job assignments, promotions, layoffs,
and recalls, to provide greater flexibility for management. Mitchell
testified at the hearing that, “Proposal B gave the Union most of what it
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1516
Mitchell testified Respondent’s Proposal B initially provided
pertaining to union security that agency fee payers must pay the
Union an agency fee equal in amount to 50 percent of monthly
dues. Mitchell testified that after the Union said the agency fee
had to be 100 percent; Respondent came back and modified it
to 75 percent. Mitchell testified, “That’s what they said at the
meeting on November 6th. They said, we’re not authorized to
accept anything less than 100 percent.” Mitchell also testified
the Union said they would not negotiate over the amount of
fees paid by agency fee employees, “and they said that all of
the company’s proposals on union security are illegal. And
after caucuses where they called somebody, they said, on No-
vember 6th they came back and said that it had to be 100 per-
cent.” Mitchell admitted stating in his affidavit that the Union
said, “[I]n negotiations that they cannot negotiate over the
amount that agency fee payers will pay, based on the union’s
constitution and that it is illegal.” Mitchell testified Respond-
ent kept the 75-percent agency fee in Proposal B until the pro-
posal expired on December 1.
During his testimony, Mitchell referred to Respondent’s
written October 8 proposal as Proposal A, although it was not
labeled as such on its face. Mitchell testified that on November
6, “I told the group that both Proposal A and Proposal B would
remain open until December 1.” Mitchell testified that on No-

was asking for, for union security, and proposed in return greater flexi-
bility and greater management decision-making discretion in managing
the workforce.”
Mitchell identified a copy of a management-rights clause, which he
testified Compher gave to Respondent during the period of the July 25
or October 7 sessions in the context of the parties’ discussion of union
security. Mitchell testified that Compher did not necessarily tender the
management-rights clause as a proposal, but said he wanted to give
Respondent the type of management rights language the Union had in
other contracts. He testified Compher stated if this language will make
you more comfortable so Respondent was more willing to progress on
things like union security and other issues, this is the type of language
the Union has in other contracts. Mitchell in identifying the manage-
ment rights clause testified, “I think this document was in my file under
union contract proposals.” He testified Respondent was only presented
certain pages of the contract during the meeting. Mitchell testified he
subsequently learned that the contract language Compher presented to
him pertaining to manage rights came from the DynCorp contract.
Compher testified he did not recall tendering Mitchell management
rights provision in question, and he testified in reference to the remarks
Mitchell attributed to him pertaining to the identified management
rights provision that “that was never said.”
Mitchell’s testimony as to when he received the management-rights
clause and the manner in which he maintained it as a union proposal
was vague at best. I do not credit his claim it was tendered to him by
Compher with the remarks he attributed to Compher over Compher’s
denial. In this regard, Mitchell admittedly had access to the complete
DynCorp agreement, but could not explain how he received it. The
language contained in the DynCorp management-rights clause respect-
ing assignments, promotions, and layoffs, was contrary to the tentative
agreements the Union and Respondent had reached pertaining to those
subjects in June, and I find it highly unlikely that Compher would have
tendered Mitchell the proposal with the remarks Mitchell attributed to
him. Moreover, the management-rights clause tendered to the Union
on November 6, was not taken from the DynCorp agreement, nor was
the union-security provision Respondent presented to the Union on that
date taken from that agreement.
vember 6, he told the Union they had Respondent’s last and
final offer referring to Proposal A and B. However, Mitchell
then went on to testify as follows:

Q. Do you recall saying in your affidavit that you did
not explicitly say, at this time, that Proposal A was still on
the table?
A. I may have said that, but what I said in my-I mean,
what I said at the table was both Proposal A and Proposal
B would be withdrawn as of December 1. I may not have
said Proposal A is on the table, I may have said it that
way, but I said clearly, I say that simply by labeling this,
General Counsel’s 5, Proposal B, that that means that Pro-
posal A is still out there. But at the end of the day, I said
that both proposals, A and B, would be withdrawn De-
cember 1, which I think implies that they’re both out there,
if I didn’t say that expressly.

Mitchell explained that at the conclusion of bargaining on
November 6, Respondent was withdrawing its contract pro-
posals if not accepted in time to submit them to the Govern-
ment by December 1. Mitchell testified he specifically refer-
enced Proposal A, although he did not call it A at the time. He
testified, “I said the October 8th agreement would also be with-
drawn if not accepted by December 1.” Mitchell testified he
told the Union at the conclusion of bargaining on November 6,
session that he could not let Respondent get into a situation
where it would have to pay the wages and benefits in the con-
tract proposals without being reimbursed by the Government.
Mitchell testified that was the reason for withdrawing the pro-
posals as of December 1. Mitchell testified that based on what
he had told the Union on November 6, all of Respondent’s
contract proposals were withdrawn if they were not accepted by
December 1.21
Mitchell testified that concerning Respondent’s Proposals A
and B, that “I’ve testified that they were—the proposals were
labeled Proposal B and were referred to in the negotiation as
Plan A at times, and Proposal B or Plan B. And again, the pur-
pose of these documents is just to show the general understand-
ing of what those terms, and specifically Plan B, mean.”
Mitchell testified Respondent did not renege on tentative
agreements on seniority or discipline because Proposal A re-
mained on the table as an alternative to Proposal B until it was
withdrawn on December 1.
Mitchell testified the reason Respondent did not agree to the
Union’s proposal on union security was because Respondent
has a strong belief in individual freedom and liberty and that
employees should not be compelled to support organizations or
causes they do not believe in. Mitchell testified, “We discussed
that at great length during the negotiations.” Mitchell testified,
“What we said is that we had no problem with anyone who

21 Mitchell testified there were no modifications to Proposal A, the
October 8 proposal on November 6. He testified, “Proposal A was not
discussed at that meeting, other than at the first of the meeting and at
the very end.” While he claimed he informed the Union at the end of
the November 6 meeting that Respondent was withdrawing both the
October 8 proposal and Proposal B, Mitchell testified his bargaining
notes for November 6, show that a last and final offer by Respondent
was presented in the singular on that date.
UNIVERSAL FUEL, INC. 1517

wants to join and pay dues or pay an agency fee with the Un-
ion, but we did not believe that it was appropriate to compel
someone against their will to support causes that they disagree
with—and there were not many, but a couple of people there—
that we believed that everybody’s rights should be respected
and that those people, though they may be few in number, de-
serve to have their opinions and their beliefs treated with as
much respect as members of the majority. And we did say that
repeatedly during the negotiations. Again, we—well, we invit-
ed the Union, in negotiations, to compromise on its version of
union security.” Mitchell testified, “I would say one reason is
that the Union’s refusal to consider or offer any compromise.”
Mitchell testified, “We invited compromise. The other side
said there’s not going to be any. And that is also one reason for
our position.” However, Mitchell admitted stating in his affi-
davit that Respondent did not agree to the Union’s proposal on
union security because Respondent has a strong belief in indi-
vidual freedom and liberty and that employees should not be
compelled to support organizations or causes they do not be-
lieve in. Mitchell admitted to not citing the Union’s inflexibil-
ity on union security in his affidavit as an impediment to an
agreement. He testified, “I did not say that that day, no. But I
would say, in negotiations, part of any party’s position is the
reaction and response from the other side.”
Mitchell identified a memo from Evans distributed to
employees following the November 6 meeting. Mitchell
approved the memo before it issued. It states as follows:

The Company and Union met in Birmingham, Alabama on
November 6, with a Federal Mediator. The issue discussed
was union security—mandatory union membership and pay-
ment of dues by all employees. All pay and benefit items and
other contract language were agreed upon.

The Company’s position was that all employees should have
the freedom to choose whether to join the Union or pay dues
or agency fees. The Union insisted that all employees must
either join the Union or pay an amount equal to Union dues.
Those who do not should be fired, according to the Union.

The Company went against its beliefs and proposed that: (1)
those who want to join the Union can do so and have their
dues and initiation fees paid through payroll deduction; (2)
those who do not want to join the union must pay 75% of
dues to cover the cost of collective bargaining, and they too
can pay this through payroll deduction if they choose; and (3)
no one will be fired over whether they do or do not join the
Union or pay dues.

The Union refused to accept his, and the negotiations ended in
a standoff.

The new contract year begins December 1, 2008. The Com-
pany told the Union that it intends, as it has done in the past,
to ask the Contracting Officer to approve an increase in wages
and benefits. There is no assurance that the increases agreed
upon at the bargaining table will be accepted by the Contract
Officer.

Compher responded to Evans memo with a posting to employees
on the Union’s website where he stated:

I wanted to give you an update on negotiations in Birming-
ham. First off, the letter that was put out by the company on
Friday does not tell the “TRUTH”. The Company’s letter
does not tell you that they wanted to take “AWAY” seniority
provisions that were already “AGREED” to. The Company’s
letter does not tell you that the Company “WALKED” away
from the table on Thursday, while we were waiting for the
Mediator to get the parties moving. The Company’s Letter
does not tell you the Company did not want to talk about the
GRIEVANCE and ARBITRATION procedures and the
BOOTS. The Only thing the Company wanted to do was talk
about the dues instead of everything that was open. Further,
the Company wanted to try and negotiate additional manage-
ment rights, weaken the grievance and arbitration procedure,
and SENIORITY, and NO-STRIKE AND NO-LOCKOUT.

The Union went to Birmingham in an effort to resolve the is-
sues and negotiate a Contract, but the only thing the Company
wanted to do was “REGRESS BARGAIN” when the Com-
pany threw (sic) out another offer “PLAN B” which is an un-
fair labor practice and we are going to file “UNFAIR LABOR
PRACTICE” charges with the LABOR BOARD. The Com-
pany’s action in Birmingham by trying to take things away
that was already agreed to were just merely a waste of time
instead of trying to get an agreement with the Union. The
Company in it’s letter stated that they are going to try and
submit the wage increase but they know full well the Con-
tracting Officer will not accept it without a Contract with your
Union and we will show you that in a Letter from the Con-
tracting Officer saying just that.

Please keep one thing in mind, without a good UNION
SECURITY CLAUSE, A GOOD GRIEVANCE AND
ARBITRATION PROCEDURE, YOU HAVE NO VOICE
IN THE WORKPLACE AND ARE WITHOUT SOLID
REPRESENTATION, and REPRESENTATION YOU
VOTED FOR BY CHOOSING THE I.A.M. TO
REPRESENT YOU. “STAY STRONG AND TOGETHER
AND WE WILL PREVAIL.”

Mitchell testified as to open issues that Respondent and the
Union never reached agreement on the Union’s request to re-
classifying the truckdrivers to FSDOs. Mitchell testified he
was unsure whether the parties reached agreement on arbitra-
tion language because at the end of the day the Union stated
they wanted the language from Proposal A back in. He testi-
fied, “That would indicate, perhaps, agreement with the com-
pany’s language on Proposal A. I would say that that was not
any clear agreement, though.” Mitchell testified there was no
express agreement on shoe allowance. Mitchell admitted the
Union never specifically agreed to Respondent’s subcontracting
proposal. He testified that in the Union’s counterproposal they
did not object to the subcontracting language indicating to
Mitchell that the Union did not have a major problem with it.
Mitchell testified Respondent made another contract pro-
posal by letter from Mitchell to Compher dated February 18,
2009. It states in the letter, “Further, and in response to Mr.
Provost’s direct question last Monday, while we are prepared to
compromise from our position on Section VI (Union Security),
we are not willing to accept the Union’s only proposal on this
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1518
subject. We are ready to meet and discuss this and other mat-
ters if you desire to do so.” Mitchell testified Respondent’s
February 18 offer is the October 8 proposal updated to provide
current wage rates and to adjust proposed wage increases to the
next anticipated contract year and for 2 years thereafter, which
would be December 1, 2009. Mitchell testified the Union has
never responded to the February 18 proposal. Mitchell testified
Respondent made this proposal after the Region issued a pro-
posed remedy that required Respondent to reinstate Proposal A,
the October 8 proposal.
A. Credibility
One area of dispute in this case is how Mitchell described
Respondent’s “Proposal B” to the union officials during the
November 6 meeting. Provost credibly testified that at 10:45
a.m. on November 6, the Union received a document from
Mitchell labeled, “COMPANY PRO-POSAL B.” The cover
page of the document identified six areas where there were
changes to Respondent’s October 8 proposal. Provost credibly
testified that at the time the Union was tendered Company Pro-
posal B no one from Respondent told the Union that Respond-
ent’s October 8 proposal was still on the table. Provost testified
that after Mitchell reviewed the changes, the parties took a
break. Provost testified, “[W]e kind of had to take a break
because we went there believing there was six to eight issues
open, and when we got this document, all of a sudden it became
like 15 because there were some changes made; in my belief,
was regressive bargaining. So when we went back, we pointed
that out to the Company, and Rick did it, and he was extremely
upset.” Provost testified he also told the Respondent it was
regressive. Provost testified Respondent gave no response to
his assertion. Provost credibly testified that, at no time during
the November 6 meeting, did anyone from Respondent state
that the October 8 proposal was still on the table. Provost de-
nied telling Mitchell during the meeting that he did not have to
worry about withdrawing Proposals A and B because neither
would be accepted by the Union.22
Similarly, Compher credibly testified the union officials
were very upset by Proposal B. He testified the proposal added
new language that had never been discussed before including
such areas a management rights. Compher listed the regressive
proposals in Proposal B in areas where there had been prior
tentative agreements. Compher testified that for lack of a better
word, “I was pissed.” Compher He testified, “We were there.
And we didn’t have much time to get this thing done, and it
was pulled out from underneath our feet.” Compher testified
when Proposal B was given to the Union, “I said this is a crock
of shit. We come all the way here and you wanted to pull back
on proposals, things that we already agreed to.” Compher testi-
fied that Mitchell had no response. Compher testified that
Mitchell did not say anything about the October 8 proposal still
being on the table. Compher testified he accused Respondent
of regressive bargaining to which there was no response.
Compher testified Respondent’s officials never said anything

22 Provost credibly testified Respondent’s November 6 changes real-
ly upset the Union because they were changes to prior tentative agree-
ments, and to benefits the employees already enjoyed in the area of
seniority.
about the October 8 proposal the entire day. He testified that
between November 6 and December 1, no one told him that the
October 8 proposal was still on the table. Compher testified
that no one explained to him at the table why Respondent la-
beled the November 6 proposal as Proposal B. Compher de-
nied that Mitchell made the statement at the end of the session
on November 6, that both of the Company’s proposals were
being withdrawn or would be withdrawn effective December 1.
Compher testified that Mitchell never made the statement that
he was going to withdraw either proposal on November 6.
Thus, Provost and Compher credibly and consistently testi-
fied that during the November 6, meeting, they were not in-
formed by Respondent that the October 8 proposal was still on
table. They also both credibly testified that the union officials
were very upset by Respondent’s Proposal B and that they ac-
cused Respondent of regressive bargaining on November 6, by
the changes made in Proposal B from the October 8 proposal
with no response from Respondent.
On the other hand Mitchell’s testimony about informing the
Union that the October 8 proposal was still on the table was
vague and somewhat inconsistent. Mitchell initially testified
that when Respondent first presented Proposal B, “I said that
our first proposal was still on the table and Proposal B was
presented as an option.” Mitchell testified in reference to the
first proposal that he was referring to the October 8 proposal
which he labeled at the hearing as Proposal A. When asked if
he labeled it as Proposal A during negotiations, Mitchell testi-
fied, “I think at some point I did probably use the term Plan A,
but I think initially I did not. I think initially I referred to it as
just the Company’s last offer referring to Respondent’s October
8 proposal.” However, Mitchell then went on to testify as fol-
lows:

Q. Do you recall saying in your affidavit that you did
not explicitly say, at this time, that Proposal A was still on
the table?
A. I may have said that, but what I said in my—I
mean, what I said at the table was both Proposal A and
Proposal B would be withdrawn as of December 1. I may
not have said Proposal A is on the table, I may have said it
that way, but I said clearly, I say that simply by labeling
this, General Counsel’s 5, Proposal B, that that means that
Proposal A is still out there. But at the end of the day, I
said that both proposals, A and B, would be withdrawn
December 1, which I think implies that they’re both out
there, if I didn’t say that expressly.

Thus, while Mitchell initially testified that he told the Union
that the October 8 proposal was still on the table when he first
presented the Union with Proposal B, he admitted later on that
he may not have done so. Similarly, while Mitchell initially
testified that he referred to the October 8 proposal as Plan A, at
some point during the November 6 meeting, Mitchell later testi-
fied that at the conclusion of bargaining on November 6, Re-
spondent withdrew its contract proposals if they were not ac-
cepted in time to submit them to the government by December
1. Mitchell testified he specifically referenced Proposal A,
although he did not call it A at the time. He testified, “I said
the October 8th agreement would also be withdrawn if not ac-
UNIVERSAL FUEL, INC. 1519

cepted by December 1.” He testified at that time they were not
calling it Proposal A, “It was just called the October 8th pro-
posal.”
In sum, I found the testimony of the union officials to be
clear and convincing that they were never told that the October
8 proposal was still on the table during the November 6 session.
Moreover, the credible testimony of the union officials reveals
that they accused Mitchell and Respondent of regressive bar-
gaining as to Proposal B on November 6, with no response
from Mitchell. I therefore find that Mitchell was aware on
November 6, that the union officials were operating under the
assumption that on November 6 the October 8 proposal had
been withdrawn and supplanted by Respondent’s Proposal B.
In fact, I have concluded it was Respondent’s intent to lead the
union officials to that conclusion. In this regard, it would have
been very easy for Mitchell to diffuse the Union’s allegations
of regressive bargaining by clearly informing them in response
that the October 8 proposal was still on the table. This Mitchell
failed to do.23
The parties discussed Respondent’s Proposal B union-
security language on November 6. Provost testified Mitchell
kept “making a claim that the union had the ability to negotiate
increases or decreases in agency fees. We told him, one thing
is it’s illegal—Beck, General Motors Beck ruling.” Provost
testified he explained the Union’s constitutional process to
Mitchell, and that the failure to follow the Union’s constitu-
tional guidelines concerning dues would subject the local to
charges with the Department of Labor. Provost testified Re-
spondent’s response was they believed the Union had the abil-
ity to negotiate agency fee payer amounts.
Provost testified the Union is required by law to publish em-
ployees Beck rights once a year, so the members have the abil-
ity to state they are a Beck objector or have nonmember status.
Provost testified that during the November 6 meeting, both he

23 Respondent attempted to place two newspaper articles and two
cross word puzzles into evidence referring to the term Plan B to bolster
an argument that the mere labeling of Respondent’s November 6 pro-
posal as Proposal B, was sufficient to apprise the union officials that
the October 8 proposal was still on the table. Admittedly, these docu-
ments were not presented to the Union at the bargaining table on No-
vember 6. In fact, they were obtained after the fact. Upon objection, I
excluded the four documents from evidence during the hearing, with
leave for the parties to further argue their admissibility in their briefs.
Having reviewed these rejected exhibits, I adhere to my decision to
exclude them. First, the Respondent had made three proposals prior to
the November 6 meeting, each replacing rather than serving as an alter-
native to the prior proposal. Second, I have concluded that the Union
was never informed that the October 8 proposal was labeled as Pro-
posal A, thereby undermining any claim that merely labeling the No-
vember 6 proposal as Proposal B served to inform the Union that it was
serving as an alternative rather than a replacement of the October 8
proposal. Finally, as set forth above, by the accusations of regressive
bargaining made by the Union on November 6, Respondent’s officials
were aware that the union officials considered Proposal B to be a re-
placement and not an alternative to the October 8 proposal, and Re-
spondent’s officials never sought to clarify the matter. Thus, I do not
credit Mitchell’s claim, over the union officials’ denial, that Mitchell
told them at the end of the November 6 meeting that the October 8
proposal would be withdrawn by December 1, if it was not accepted by
that date.
and Compher asked Mitchell more than once if Mitchell would
be interested in talking to the Union’s general counsel concern-
ing Respondent’s proposal on union security, or to the Union’s
International president. Provost testified Mitchell did not re-
spond to that offer. Provost testified that on November 6, the
Union never said or insisted that nonmembers pay a hundred
percent of dues. He testified that the Union’s proposal on un-
ion security did not require that they do so. Provost admitted
the Union’s written proposal on union security to Respondent
did not say anything about proportional dues for objectors.
However, Provost testified he and Compher told Mitchell that if
Respondent was so concerned about this that the union officials
“would teach them how to show employees to become objec-
tors through the Beck disclosure.” Provost labeled this offer by
the Union as a verbal proposal on union security, which was in
addition to the Union’s proposed written contract language.
Provost testified the union officials offered Mitchell this more
than once on November 6.
Compher testified Respondent’s November 6 proposal con-
cerning union security, “was the major discussion of that day.”
Compher testified it was the first time the Union had seen a
proposal where employees who object to being full dues paying
members pay a specified percentage as an agency fee.
Compher testified, “I explained very simply to Mr. Mitchell
across the table that we can’t bargain this percentage, it’s ille-
gal. If you don’t believe me, here is my attorney’s or general
counsel’s name and number and here’s our international presi-
dent’s name and number.” Compher testified that during the
November 6 meeting, the union officials made the statement
that negotiating the amounts agency fee payers paid was illegal
because it violated the Union’s constitution and bylaws.
Compher testified in negotiation sessions prior to November
6, the Union told the Respondent the employees had a right not
to join the Union, and that they did not have to pay full dues.
He testified that on November 6, the Union told Respondent
that the Union would assist the employees on how to apply to
become an agency fee payer or objector. Compher testified,
“We told them we can’t bargain any types of percentage be-
cause it’s illegal. And I believe at that time Mr. Mitchell made
the statement he believes that we can convince our higher-ups,
whatever that—.” Compher testified that during negotiations,
the Union never demanded that an objector pay a hundred per-
cent of dues because that would be illegal. Compher testified
the Union sends employee objections to full dues payments to
the Union’s headquarters, to the general secretary’s department,
and they figure out how much the objector has to pay for col-
lective-bargaining representation. He testified, “[T]hat’s the
part of what we were trying to tell the Company we would help
them do, guide them in the right direction.” Compher ex-
plained that under the Union’s constitution they “had to refer
them—any dues objector has to go to the General Secretary—
we cannot bargain that.”
Compher testified that during negotiations from June through
November, the Union only made one proposal on union securi-
ty. Compher testified the agency fee referenced in the proposal
is not equal to the full amount of dues. Compher testified there
is nothing in the proposal that says the agency would be re-
duced but it was explained to Mitchell several times across the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1520
table. Compher testified, “I explained to you exactly what our
proposal was, and I explained to you several times during nego-
tiations, if any employee wanted to object to paying dues, we
would tell them how to go, where to go, and what to do. I ex-
plained to you that several times. You can’t dispute that.”
Mitchell testified that after Respondent presented the Union
with Proposal B on November 6, the Union stated they would
not agree to 50 percent of monthly dues for agency fee payers
and that that had to be 100 percent. He testified later on in the
session Respondent altered its union-security proposal to a 75-
percent fee for agency fee payers which the Union also rejected
stating that they could not and would not accept any offer that
did not have 100 percent of dues for agency fee payers. Mitch-
ell testified, “That’s what they said at the meeting on November
6th. They said, we’re not authorized to accept anything less
than 100 percent.” However, Mitchell also testified the Union
said during negotiations that they would not negotiate over the
amount of fees paid by agency fee employees, “and they said
that all of the Company’s proposals on union security are ille-
gal. And after caucuses where they called somebody, they said,
on November 6th they came back and said that it had to be 100
percent.” Mitchell admitted stating in his affidavit that the
Union said “in negotiations that they cannot negotiate over the
amount that agency fee payers will pay, based on the union’s
constitution and that it is illegal.”
The testimony of Provost and Compher concerning the dis-
cussion on union security was consistent between witnesses and
it had a ring of truth. Moreover, it was confirmed in large part
by admissions by Mitchell that he was informed by the Union
that they could not negotiate over the amount fee payers would
pay because it was illegal under the Union’s constitution. I
have credited the testimony of the union officials that they in-
formed Mitchell that agency fee payers did not have to pay 100
percent under the Union’s union-security proposal, and that
they gave assurances that they would assist in explaining this to
employees. Mitchell’s testimony that the union officials insist-
ed that agency fee payers would have to pay 100 percent during
this meeting is undermined by his admission that they informed
him that they could not negotiate over it in the first place.
Moreover, his claim is undercut by the realities of the meeting.
To credit him, would mean that two experienced union officials
would not have been aware of the Union’s Beck policies and
that agency fee payers have a right to object to full fees. I
would further have to credit him that they continued with this
position after they called their International office seeking ad-
vice on the Union’s Beck policy. I do not find Mitchell’s tes-
timony worthy of belief. Rather, I find that during the meeting,
the union officials stated the Union was seeking its written
proposal on union security to be included in the collective-
bargaining agreement, but they also informed Respondent that
under that proposal agency fee payers did not have to pay 100
percent of membership dues as the union officials credibly
testified.24

24 Respondent did not object to the Union’s union-security proposal
on the grounds that it was unlawful. Moreover, the proposal was lim-
ited by its terms to requiring employees to be in good standing “as in
compliance with standards permitted by NLRB and court decisions
Compher testified that during bargaining sessions prior to
November 6, Mitchell told Compher that Respondent had
“philosophical differences” about having a union-security pro-
vision in the contract. Compher testified, “Mr. Mitchell had
always stated to me, across the table, on numerous occasions,
that he had a philosophical difference with employees having to
pay dues.” Compher testified that was the only reason Mitchell
gave in objecting to the union’s proposal on union security.
Mitchell testified the reason Respondent did not agree to the
Union’s proposal on union security was because Respondent
has a strong belief in individual freedom and liberty and that all
employees should not be compelled to support organizations or
causes they do not believe in. Mitchell testified, “We discussed
that at great length during the negotiations.” Mitchell also testi-
fied Respondent invited the Union to compromise on its version
of union security during negotiations. Mitchell testified, “I
would say one reason is that the union’s refusal to consider or
offer any compromise.” Mitchell testified, “We invited com-
promise. The other side said there’s not going to be any. And
that is also one reason for our position.” However, Mitchell
admitted stating in his affidavit that Respondent did not agree
to the Union’s proposal on union security because Respondent
has a strong belief in individual freedom and liberty and that
employees should not be compelled to support organizations or
causes they do not believe in. Mitchell admitted to not citing
the Union’s inflexibility on union security in his affidavit as an
impediment to an agreement. Mitchell’s affidavit supports
Compher’s version of the discussion. It is also unlikely, that
Mitchell repeatedly told Compher that he had philosophical
objections to union security, but at the same time seriously
invited compromise. Moreover, there is no claim that Re-
spondent ever suggested a realistic compromise, although
Mitchell admittedly at some point was in possession of the
DynCorp contract which had an alternative union-security pro-
vision, which had previously been agreed to by the Union. I
have concluded that the evidence reveals that the Union stead-
fastly adhered to its written proposal on union security, and
Respondent responded that it was opposed to union security
based on what in essence were philosophical grounds.
Mitchell testified that on November 6, the Union included a
written no strike proposal as part of its counter proposal to Pro-

relating to Union shop requirements.” See Chester County Hospital,
320 NLRB 604, 622 (1995). The Board and the Supreme Court have
found union-security provisions lawful when they track the language in
Sec. 8(a)(3) of the Act, even if they do not inform employees of their
right to object from paying full dues. The Board has held that by track-
ing the language of Sec. 8(a)(3) a union-security provision “incorpo-
rates all of the refinements and rights that have become associated with
the language of Sec. 8(a)(3) under General Motors & Beck.” See
Schreiber Foods, 329 NLRB 28, 29 (1999). See also Marquez v.
Screen Actors Guild, 525 U.S. 33 (1998). Here, the Union’s proposal
went beyond the language of Sec. 8(a)(3) in that the proposal states in
part that absent being an member and employee must pay an, “agency
fee equal in amount to monthly membership dues.” However in artful-
ly drawn, there can be no doubt that at this point in time the Machin-
ists’ Union has a Beck policy, which is published to employees, and
that the union officials here informed Mitchell of that policy and that
they were not seeking 100-percent dues from agency fee payers. See
California Saw & Knife Works, 320 NLRB 224 (1995).
UNIVERSAL FUEL, INC. 1521

posal B. Mitchell testified Respondent then made a counter-
proposal that included most of the Union’s language on no
strikes. Mitchell identified Respondent’s written counterpro-
posal concerning the no-strike clause, which omits any lan-
guage pertaining to an employee ban on picketing. Compher
testified he could not recall whether on November 6, the Union
presented Respondent with a counterproposal on strikes and
lockouts, stating, “We may have.” Compher testified a marked
up version of a strikes and lockout provision was not presented
back to him on November 6. However, Compher testified he
may have seen the proposal that day. Provost was shown by
Mitchell and he identified a “Strike and Lockouts” provision,
which he testified he thought he saw part of it in another Ma-
chinists contract. Provost testified he did not give the provision
to Respondent on November 6. Given the somewhat vague
recollections of the union officials here, I have credited Mitch-
ell that Respondent did present another strikes and lockouts
provision to the Union on November 6, which omitted the ban
on picketing that had initially been included in Respondent’s
initial Proposal B.
B. Analysis
In Langston Co., 304 NLRB 1022, 1060 (1991), the follow-
ing principles were set forth:

. . . there can be little doubt that the obligation to bargain col-
lectively does not compel either party to agree to a proposal or
require the making of a concession, NLRB v. American Na-
tional Insurance Co., 343 U.S. 395, 404 (1952); 29 U.S.C. §
158(d). Nor may the Board directly or indirectly, compel con-
cessions or otherwise sit in judgment on the substantive terms
of collective-bargaining agreements. H. K. Porter v. NLRB,
397 U.S. 99, 106 (1970). The Board is forbidden to compel
agreement when the parties are unable to agree, for such ac-
tion would violate the fundamental premise on which the act
is based: private bargaining under government supervision of
the bargaining procedure, without any official compulsion
over the terms of the contract (H. K. Porter, supra, 397 U.S. at
108).

In Sivalls, Inc., 307 NLRB 986, 1008 (1992), it was stated
that:

“In determining whether a party has bargained in good faith,
making a genuine effort to reach agreement, [the Board] will
seldom find direct evidence of a party’s intent to frustrate the
bargaining process. Rather, [it] must look at all of [the par-
ty’s] conduct, both away from the bargaining table and at the
table, including the substance of the proposals on which the
party has insisted. . . . Such an examination is not intended to
measure the intrinsic worth of the proposals, but instead to de-
termine whether, in combination and by the manner in which
they are urged, they evince a mindset open to agreement or
one that is opposed to true give-and-take.” NLRB v. A-1 King
Size Sandwiches, 732 F.2d 872, 874 (11th Cir. 1984); NLRB
v. Mar-Len Cabinets, 659 F.2d 995, 999 (9th Cir. 1981); Hy-
drotherm, Inc., 302 NLRB 990 (1991); Prentice- Hall, Inc.,
290 NLRB 646 (1988); Reichhold Chemicals, 288 NLRB 69
(1988).25

In evaluating proposals the Board and courts will review
their content, the timing they are made, and the reasons given
for the proposals at the bargaining table to determine whether
they are made in good faith, or evince an intent to frustrate the
bargaining process. For example, in NLRB v. A-1 King Size
Sandwiches, Inc., 732 F.2d 872, 877 (1984), cert. denied 469
U.S. 1035 (1984), the court enforced a Board order finding
surface bargaining based on the positions that the respondent
employer took during negotiations. The employer had pro-
posed an extensive management-rights clause, and the court
noted that its proposed grievance and arbitration procedure was
“largely illusory.” In finding a violation, the court concluded
that, “it is clear from our extended recital of the proposals made
. . . that the Company insisted on unilateral control over virtual-
ly all significant terms and conditions of employment, includ-
ing discharge, discipline, layoff, recall, subcontracting, and
assignment of unit work to supervisors.” The court went on to
state that “[t]he Board correctly inferred bad faith from the
Company’s insistence on proposals that are so unusually harsh
and unreasonable that they are predictably unworkable.” The
court cited NLRB v. Wright Motors, Inc., 603 F.2d 604, 609–
610 (7th Cir. 1979), and NLRB v. Johnson Mfg. of Lubbock,
458 F.2d 453 (5th Cir. 1972), as precedent for its conclusion.
Along these lines, the opposition to union security and dues
checkoff based on philosophical grounds without business justi-
fication has been held to constitute evidence of bad-faith bar-
gaining. See Chester County Hospital, 320 NLRB 604, 622
(1995), enfd. 116 F.3d 469 (3d Cir. 1997); CJC Holdings, 320
NLRB 1041, 1047 (1996), affd. 110 F.3d 794 (5th Cir. 1997);
Hospitality Motor Inn, 249 NLRB 1036, 1036 fn. 1 (1980); and
NLRB v. A-1 King Size Sandwiches, Inc., supra at 877.
In Hercules Drawn Steel Corp., 352 NLRB 53, 71–72
(2008), it was noted that regressive proposals standing alone
are not per se violative of the Act, and that the Board examines
a respondent’s explanation for a change in position to deter-
mine whether it was undertaken in bad faith and designed to
impede agreement. In Quality House of Graphics, 336 NLRB
497, 515 (2001), it was stated that:

In Reichhold Chemicals, Inc., 288 NLRB 69 (1988)
(Reichhold II), affd. in pertinent part sub nom. Teamsters
Local 515 v. NLRB, 906 F.2d 719 (D.C. Cir. 1990), the
Board reiterated some of the factors that it will consider in
determining whether bad-faith bargaining bad occurred.
These include among others: unreasonable bargaining de-
mands that are consistently and predictably unpalatable to
the other party; unilateral changes in mandatory subjects
of bargaining; and insistence to impasse on nonmandatory

25 In NLRB v. Wright Motors, Inc., 603 F.2d 604, 609–610 (7th Cir.
1979), the court stated that, “Sometimes, especially if the parties are
sophisticated, the only indicia of bad faith may be the proposals ad-
vanced and adhered to. NLRB v. Holmes Tuttle Broadway Ford, Inc.,
465 F.2d 717, 719 (9th Cir. 1972); Vanderbilt Products, Inc. v. NLRB,
297 F.2d 833 (2d Cir. 1961); NLRB v. Reed & Prince Mfg. Co., 205
F.2d 131, 134–135, 139 (1st Cir.) (1953), certiorari denied 346 U.S.
887.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1522
subjects of bargaining, all of which are present in the in-
stant case evidencing the Respondent’s design to frustrate
a bargaining agreement. Moreover, the Board has held that
the interjection of new proposals after months of bargain-
ing can be evidence of bad-faith bargaining. The Board
has also held that the assertion of a proposal disingenuous-
ly is an indicia of bad-faith bargaining. [Footnotes omit-
ted.]
From all of the above, and the timing of the Respond-
ent’s proposal, its regressive nature, without justification,
the Respondent’s seemingly pretextual explanation of the
purpose therefore, and the Respondent’s apparent disin-
genuous assertion of this proposal to the Union, I find and
conclude that the Respondent’s May 8, 1998 proposal was
not made as part of any good-faith effort to reach an
agreement, but instead, constituted bargaining in bad faith
with the Union designed to frustrate a collective-
bargaining agreement, in violation of Section 8(a)(5) of
the Act.
26

It has also been recognized that when a party withdraws
from tentative agreements it can constitute an indicia of bad-
faith bargaining. See Golden Eagle Spotting Co. v. NLRB, 93
F.3d 469, 471 (8th Cir. 1996). Thus, the Board has held that a
party may withdraw from a tentative agreement concerning a
contract only when it has good cause to do so. See Suffolk
Academy, 336 NLRB 659, 669 (2001), enfd. 322 F.3d 196 (2d
Cir. 2003); Driftwood Convalescent Hospital, 312 NLRB 247
(1993); Homestead Nursing Center, 310 NLRB 678 (1993); and
Arrow Sash & Door Co., 281 NLRB 1108 fn. 2 (1986).
In Service Employers Local 535 (North Bay Center), 287
NLRB 1223 fn. 1 (1988), the Board held that the bargaining
over the amount of agency fees is a permissive subject of bar-
gaining. A party may advance a proposal on a permissive sub-
ject of bargaining as long as it does not insist upon it as a price
for an overall agreement. See Reading Rock, Inc., 330 NLRB
856, 861 (2000); and Raymond F. Kravis Center for the Per-
forming Arts, 351 NLRB 143, 144 (2007). The Board has also
held that a repeated proposal to change the scope of the unit, a
nonmandatory subject of bargaining, can constitute evidence of
overall bad-faith bargaining. See Branch International Services,
310 NLRB 1092, 1103 (1993), enfd. mem. 12 F.3d 213 (6th
Cir. 1993). Finally, an employer’s refusal to meet in a location
reasonably close to the plant or employees worksite, particular-
ly when no justification is presented, places a hardship on the
employees and their union and is indicative of bad faith bar-
gaining, if not in and of itself unlawful. See Somerville Mills,
308 NLRB 425, 426 fns. 5 and 6 (1992), enfd. 19 F.3d 1433
(6th Cir. 1944).
In the current case, following an election the Union was cer-
tified on February 8. The parties held their first bargaining
session on June 24, with five additional sessions before their
final meeting on November 6. The last session before the No-
vember 6 meeting was held on October 8. At the outset of
negotiations, Respondent made the Union aware that any col-

26 See also Hotel Roanoke, 293 NLRB 182, 185 (1989), holding that
the “introduction of significant new bargaining proposals at a late stage
of negotiations” constitutes an indicia of surface bargaining.
lective-bargaining agreement had to be submitted to the Federal
contracting officer by December 1, in order for Respondent to
be compensated for any wage and benefit increases above the
area wage determination. By the second session on June 25,
the parties had reached tentative agreement that promotions, job
assignments, layoffs, and recalls were to be based on seniority.
This in essence incorporated Respondent’s practices at the
time.27 The evidence reveals that during the initial session on
June 24, the parties had reached tentative agreement that disci-
pline and discharge were to be for just cause.
The evidence indicates that, during the October 8 session, the
Union listed union security, pay for stewards while investigat-
ing grievances, the cost of examinations and licenses, the griev-
ance procedure concerning what could be taken to arbitration,
shoe allowance, a request to reclassify the truckdriver position,
pay for lead persons, pay for boiler tenders, shift differential
pay, and a pay increase for the dispatcher as the open items.
During the meetings up to and during October 8, union security
was a serious bone of contention between the parties, with
Mitchell stating Respondent opposed union security for what in
essence were philosophical reasons, and the Union adamantly
adhering to the only proposal it had made stating it had been
selected by the union membership. During the October 8 meet-
ing, Respondent made a verbal contract proposal to the Union.
Following the October 8 meeting, Compher sent Mitchell an
email requesting the resumption of negotiations the following
week with the assistance of a Federal mediator, offering the
Union’s place a business as a meeting place. Mitchell sent
Compher an email dated October 15, with a written version of
Respondent’s October 8 verbal contract proposal, which Mitch-
ell stated contained “all agreements reached to date” as well as
Respondent’s position on any open items. The written offer
sent on October 15, included the parties prior tentative agree-
ments on discipline and on seniority.
Thereafter, Compher sought the assistance of a Federal me-
diator to arrange another meeting. However, he was informed,
although the bargaining unit was in Maryland and employees
had participated as members of the Union’s bargaining commit-
tee, that Respondent would not return to Maryland and would
only meet in Birmingham, Alabama. As a result, Compher
sought approval from the Union to make the trip to Alabama,
and he was accompanied by union official Provost, rather than
any bargaining unit members to the next meeting which took
place on November 6, in Birmingham, Alabama. Provost had
not attended any prior meetings.
The November 6 meeting was scheduled to begin at 9 a.m.,
but Respondent arrived late and it did not start until around 10
a.m. Provost and Compher were there for the Union, and it was
attended by Respondent’s officials along with a Federal media-
tor. It was not until 10:45 a.m. that Respondent’s officials pre-
sented Respondent’s Proposal B. to the Union. Proposal B
contained a sweeping management-rights clause giving Re-
spondent the ability to subcontract all work, exclusive control

27 While Respondent’s counsel testified he was not aware of any pri-
or layoffs, Compher credibility testified he was informed at the bar-
gaining table by Respondent’s management officials that seniority had
been the practice as to the above enumerated items.
UNIVERSAL FUEL, INC. 1523

over job assignments and promotions, scheduling, the assign-
ment of overtime, discipline and discharge, layoff and recall,
and the right to establish work and safety rules.28 Respondent
also for the first time proposed a no strike or lockout provision,
which prevented all picketing by employees. Respondent pre-
sented this management-rights proposal for the first time on
November 6, after the parties had had six prior bargaining ses-
sions and after the Union had raised no objection to Respond-
ent’s prior proposal on management rights. Respondent made
this proposal on November 6, knowing that there was a De-
cember 1, deadline for the parties to submit a collective-
bargaining agreement to the government contracting officer in
order for Respondent to be compensated by the Government for
any wages and benefits in a collective-bargaining agreement
above that of the area standards. Respondent made this pro-
posal after having heard there were relatively few open issues
at the end of the October 8 session, and after requiring the Un-
ion to absorb considerable expense in traveling from the Mary-
land due to Respondent’s insistence on continuing negotiations
in Birmingham, Alabama, a great distance from the bargaining
unit.
By making its Proposal B containing the described manage-
ment-rights clause, Respondent reneged on tentative agree-
ments reached early on in negotiations that promotions, job
assignments, layoffs, and recalls were to be seniority based, and
that discipline and discharge were to be for just cause. Re-
spondent also interjected an unlimited subcontracting proposal,
a proposal to waive employees’ right to picket, as well as a
proposal for unlimited discretion in the creation of work rules
during the very late stages of negotiations.
Respondent, in its Proposal B, also made a first time pro-
posal for a union-security provision, where agency fee payers
were required to pay half the amount of the membership dues.
During the meeting, the union officials told Mitchell that the
Union could not bargain over the amounts to be paid by agency
fee procedures, that to do so would violate the Union’s consti-
tution, and would be a violation of the Union’s Beck proce-
dures. They offered to have Mitchell speak to the Union’s
general counsel, and International president to confirm their
statements, an offer Mitchell declined. In response the union
officials informed Respondent the Union would assist in in-
forming employees of their rights not to pay full dues as Beck
objectors, but it could not bargain of the amounts they paid,
which were controlled by the Union’s constitution and Beck
procedures. However, Respondent persisted in its position to
negotiate the amounts to be paid to the Union by agency fee
payers.
The union officials were angered by Respondent’s last mi-
nute proposals, reacted strongly to the situation where they had
to incur the time and expense to travel to Alabama, and accused
Respondent of regressive bargaining to which Respondent’s
officials had no response. When the Union informed the Re-
spondent that they could not bargain over the fees of agency fee

28 At the same time, Respondent was insisting on a grievance-
arbitration procedure that limited arbitration to grievances involving
discipline or discharge, failure to pay wages or benefits under the
agreement, or the alleged violation of Federal or State law.
payers, Respondent persisted in doing so. By insisting on bar-
gaining on the Union’s dues structure over the Union’s objec-
tion Respondent unlawfully insisted on bargaining on a permis-
sive subject of bargaining. Counsel for the General Counsel
argues that Respondent did not insist to impasse on the union-
security provision contending that other items were open.
There is no allegation that Respondent insisted to impasse on
its union-security provision in the complaint. Regardless of
whether Respondent’s stance of union security caused the par-
ties to reach impasse, it clearly dominated the discussion on
November 6, and served as a severe impediment to the parties
reaching agreement.29
Mitchell admitted telling the Union that Respondent’s pro-
posal on subcontracting was made for no specific reason, that it
was just part of a management-rights provision taken from
another document so Respondent left it in there. Mitchell stat-
ed in his prehearing affidavit that Respondent explained its new
management-rights provision to the Union that Respondent was
looking for more security in exchange for the Union’s proposal
on union security.
Compher testified that during the latter stages of the Novem-
ber 6 meeting, following the Union’s strong protest, Respond-
ent came back to its prior position that layoff and recall would
be done by seniority, and that discipline and discharge would
be for just cause. However, Compher testified that promotions
and job assignments by seniority were not placed back on the
table by Respondent. Mitchell’s testimony reveals that during
its counterproposal at the November 6 meeting Respondent also
removed the prohibition against picketing from the no strike no
lockout provision. Compher’s testimony reveals the November
6 meeting ended at 2:15 p.m. I do not find Respondent’s con-
cessions at the end of the meeting demonstrate an intent to bar-
gain in good faith. Rather, Respondent’s conduct during the
meeting demonstrates an intent to make new, regressive, and
unpalatable proposals during a critical meeting, thereby wasting
time, even if some of the proposals were rescinded during the
meeting. Thus, time was wasted by requiring the Union to
rebargain for concessions that they previously obtained during
negotiations. It is clear Respondent’s goal was to thwart rather
than reach an agreement.
I find that during negotiations, Respondent objected to the
Union’s union-security proposal purely on philosophical
grounds. I find that late in negotiations, Respondent refused to

29 Prior to November 6, Respondent had repeatedly objected to union
security on philosophical grounds. The Board has held that such con-
duct concerning objecting to union security, absent a legitimate busi-
ness justification constitutes evidence of bad faith. I do not hold the
Union totally blameless concerning the parties’ discussion on union
security. The Union’s inflexible adherence to the language in its one
and only proposal based on the fact that it was selected by the employ-
ees evidenced unwillingness to compromise. Moreover, the DynCorp
contract contained union-security language which the Union had previ-
ously agreed to with another employer, which if proposed may have
been more palatable to Respondent. However, Respondent admittedly
obtained a copy of the DynCorp contract at some point in time, but has
never suggested its union security language to the Union. Thus, I do
not find the Union’s position on union security here justified or was the
cause of Respondent’s behavior, particularly in view of the credibility
resolutions I have made herein.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1524
meet at a location within reasonable proximity to the bargaining
unit, and that during the November 6 meeting, Respondent
made significant new proposals, breached tentative agreements,
and engaged in regressive bargaining without good cause
shown. Included in Respondent’s November 6 proposal was a
provision that would have eliminated the employees’ right to
picket.30 Also included was a proposal to bargain the fees
owed the Union by agency fee payers, a permissive subject of
bargaining, which Respondent insisted on negotiating over the
Union’s strong objections. I find Respondent, by its course of
conduct, engaged surface bargaining designed to frustrate ra-
ther reach agreement and that in doing so Respondent violated
Section 8(a)(5) and (1) of the Act.
There is a dispute in testimony between Compher and
Mitchell as to whether Mitchell informed the Union at the end
of November 6 meeting, that if the Union did not accept Re-
spondent’s proposals by December 1, that they were being
withdrawn. With Compher denying Mitchell’s claim that he

30 The proposal eliminating the right to picket was included in Pro-
posal B, under sec. XI Strikes and Lockouts. Counsel for the General
Counsel argues the proposal banning picketing of “any kind” is unlaw-
ful on its face arguing that it is a akin to a union’s waiver of employee
solicitation rights, which was prohibited by the Court in NLRB v. Mag-
navox Co. of Tennessee, 415 U.S. 322 (1974). The General Counsel’s
argument has some appeal in that employees can engage in picketing
away from an employer’s premises, and also engage in picketing at an
employer’s premises with no intent to disrupt work. Moreover, em-
ployees can also picket against an incumbent labor organization, as
well as in its support, and therefore a total ban on all picketing can be
construed as an impingement of employee Sec. 7 rights which goes
beyond the legitimate purpose of a no strike clause which in general is
to prevent the disruption of work. However, in Englehard Corp., 342
NLRB 46 (2004), enfd. 437 F.3d 374 (3d Cir. 2006), the Board ad-
dressed the issue of whether a union had waived the right to picket
away from an employer’s facility by language contained in a no strike
clause. There employees had picketed away from the facility with no
showing that production had been disrupted and their discharge pursu-
ant to the provision was found to be unlawful, with the Board majority
finding that the terms of the no strike clause when construed as a whole
did not constitute a clear an unmistakable waiver of the employees right
to picket away from the facility. The dissenting Board member found
that the clause in question did waive the right to any picketing and
would have upheld the discharge. None of the Board members in-
volved in the decision stated that the union could not as a matter of law
waive the employees’ right to picket.
The clause in question herein, as part of a no strike provision, could
be construed as a possible attempt to prevent picketing only when it led
to a disruption of work a opposed to a ban on all picketing as it states,
“There will be no picketing of any kind by employees represented by
the union, and such employees will cross any picket lines in order to
report to work or perform their job assignments.” However, I do not
need to make these fine distinctions to resolve the issues in this case
involving allegations of surface bargaining. I also do not need address
the issue of whether a union can waive employees’ Sec. 7 rights to
picket under all circumstances. This is because I have found that Re-
spondent withdrew the disputed picketing provision from consideration
during the same bargaining session in which it was proposed. Thus, it
is no longer in play by parties. Nevertheless, I find that Respondent’s
first time proposal of such an important and legally complex provision,
with no justification for do so, during this late stage of bargaining was
part and parcel of its conduct designed to frustrate agreement, and
constitutes strong indicia that it was engaged in surface bargaining.
made such a statement. I have credited Compher that Mitchell
did not inform the Union that it was withdrawing its October 8
proposal on November 6 effective on December 1 if not ac-
cepted by that date. I find that, in fact, Respondent led the
Union to understand during the November 6 meeting, that the
October 8 proposal had been withdrawn on November 6, in that
it had been supplanted by Respondent’s Proposal B tendered to
the Union on November 6. I have concluded that Proposal B
was made in bad faith to frustrate agreement.
Respondent has indicated at the hearing through Mitchell’s
testimony that it was Respondent’s intent and Respondent did
in fact withdraw any existing proposals as of December 1, re-
gardless of whether they informed the Union of this on No-
vember 6. The General Counsel seeks as a remedy that Re-
spondent be required to reinstate its October 8 proposal. Coun-
sel for the General Counsel citing Dynaelectron Corp., 286
NLRB 302 (1987), argues, in seeking full restoration of the
October 8 proposal that Respondent is not limited by Service
Contract Act wage determinations in making employees whole
for its unfair labor practices. I agree with counsel for the Gen-
eral Counsel’s position that Respondent should be required to
reinstate is October 8 proposal for a reasonable period of time,
and if the Union accepts the proposal that the proposal should
remain in effect for the duration of the terms expressed therein,
with the designated pay and benefit rates set forth there in. The
October 8 proposal called for specified wage rates over a 3-year
period to be implemented on December 1, on each of those
years. Under Section XII, of the October 8 proposal, the
agreement was to be effective December 1, 2008, and to remain
effective for a term of 3 years. Clearly, in these circumstances,
should the parties come to agreement based on that proposal
and bargaining thereafter, the employees are entitled to be
made whole based on retroactive pay and benefits according to
the terms of the October 8 proposal. See TNT Skypak, Inc., 328
NLRB 468 (1999), enfd. 208 F.3d 362 (2nd Cir. 2000); North-
west Pipe & Casing Co., 300 NLRB 726 (1990); and Mead
Corp., 256 NLRB 686, 686–687 (1981), enfd. 697 F.2d 1013
(11th Cir. 1983). Moreover, in reinstating its October 8 offer, I
find that Respondent should be required to cease maintaining
its opposition to a valid union-security provision, absent a legit-
imate business justification for doing so.31
Following the November 6 session, Mitchell approved a
memo under Evans signature which was distributed to all bar-
gaining unit employees. The letter described the November 6
meeting, stating the only issue discussed was “union security—
mandatory union membership and payment of dues by all em-
ployees. All pay and benefit items and other contract language
were agreed upon.” The memo falsely stated, that “[t]he Union
insisted that all employees must either join the Union or pay an
amount equal to Union dues. Those who do not should be
fired, according to the Union.” In this regard, I have credited
Compher and Provost’s testimony that they repeatedly ex-

31 This does not mean that Respondent is required to agree to the
language of the Union’s existing proposal on union security, only that
Respondent bargain in good faith over the subject matter as described
herein.
UNIVERSAL FUEL, INC. 1525

plained to Mitchell that agency fee payers did not have to pay
the full amount of dues.
Moreover, I find that, at the time Respondent issued the
memo, there was no agreement on several contract items, such
as the full application of seniority, grievance-arbitration, and
shoe allowance. Mitchell also conceded that at the time the
memo issued, the was no agreement on the Union’s request to
reclassifying the truckdrivers to FSDOs, that he was unsure
whether there is agreement on subcontracting. I find that there
was no agreement on Respondent’s belated proposal on sub-
contracting. I attribute the fact that the Union failed to make a
specific proposal concerning subcontracting was due to the fact
that they were overwhelmed by the volume of Respondent’s
regressive and new proposals, and the short time they had to
deal with them.
I find Respondent’s memo to employees also mischaracteriz-
es the tenor of the November 6 meeting, by attempting to cast
the blame on breakdown of negotiations on the Union’s posi-
tion concerning on union security, rather than stating Respond-
ent made new and substantial proposals late in negotiations,
made regressive proposals, reneged on tentative agreements,
made a proposal attempting to eliminate employees’ right to
picket, insisted on bargaining over the Union’s objection on a
permissive subject of bargaining pertaining to the Union’s dues,
and insisted on meeting at a great distance from the work place
thereby in effect prohibiting employees attendance at the meet-
ing. Respondent’s memo was a clear attempt to drive a wedge
between the employees and their Union, after Respondent had
committed various Acts to undermine negotiations and frustrate
agreement. I do not find the Union’s posting a reply memo on
its website serves to counter Respondent’s memo to employees.
First, Respondent’s memo was distributed to all bargaining unit
employees. Whereas the Union’s memo had limited reach in
that employees would have had to have the knowledge, means,
wherewithal, and desire to access the Union’s website. I find
that Respondent’s cited memo was part of its conduct to frus-
trate bargaining and to undermine the Union, and that by issu-
ing the memo Respondent engaged in conduct violative of Sec-
tion 8(a)(1) and (5) of the Act.
Finally, I find that Respondent’s refusing to meet on No-
vember 6, except at a great distance from Respondent’s Mary-
land location worked a hardship on the Union, excluded em-
ployees from attendance, and was another act designed to frus-
trate bargaining in violation of Section 8(a)(1) and (5) of the
Act.32
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 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. The Union is the certified and exclusive bargaining agent
for the Respondent’s employees in the following appropriate
unit:

32 This issue was not specifically alleged as a complaint allegation
but it was listed in the remedy section of the complaint, and fully liti-
gated at the hearing.
All full-time and regular part-time Mechanics, Mechanic
Helpers, Drivers, Fuel Distribution/Drivers, LOX Plant Oper-
ator, Lox Plant Lead, Supply Tech (Supply Clerk), Account
Clerk II (Gas Station Operator, MDGAS (MOGAS ) Opera-
tor), and Dispatcher Driver Operators employed by Respond-
ent at its Patuxent River NAS facility; but excluding all office
clerical employees, professional employees, guards, and su-
pervisors as defined in the National Labor Relations Act.

4. By the terms of its November 6, 2008 contract offer, Re-
spondent reneged on tentative agreements previously reached
with the Union that all job assignments, promotions, layoffs,
and recalls will be controlled by seniority; and that all disci-
pline and discharge will be for just cause; and Respondent en-
gaged in this conduct while making regressive proposals in
these areas with the purpose of frustrating the negotiation of a
collective-bargaining agreement, thereby violating Section
8(a)(5) and (1) of the Act.
5. By refusing to accede to union security and dues checkoff
based on philosophical grounds without advancing any legiti-
mate business justification, Respondent has engaged in a course
of conduct with the purpose of frustrating the negotiation of a
collective-bargaining agreement, thereby violating Section
8(a)(1) and (5) of the Act.
6. By the terms of its November 6, 2008 contract offer,
wherein it insisted on negotiating a union-security provision
containing the amount of fees paid to the Union by nonmember
employees over the Union’s objection to negotiate pertaining to
this permissive subject of bargaining, Respondent violated
Section 8(a)(1) and (5) of the Act.
7. By interjecting, during a late stage of negotiations, a sig-
nificant proposal on subcontracting as well as a proposal that
employees waive all rights to picket, without a legitimate justi-
fication for doing so, Respondent engaged in conduct with the
purpose of frustrating the negotiation of a collective-bargaining
agreement, thereby violating Section 8(a)(1) and (5) of the Act.
8. By withdrawing contract proposals because the Union did
not accept them in time for them to be approved by the United
States Government, Respondent has engaged in a course of
conduct for the purpose of frustrating the negotiation of a col-
lective-bargaining agreement in violation of Section 8(a)(5) and
(1) of the Act.
9. By refusing to meet with the Union on November 6, at a
location in reasonable proximity to the location of the bargain-
ing unit, Respondent has engaged in a course of conduct with
the purpose of frustrating the negotiation of a collective-
bargaining agreement in violation of Section 8(a)(1) and (5) of
the Act.
10. By falsely informing employees that the only issue pre-
venting an agreement with the Union was the issue of union
security, while at the same time engaging in unfair labor prac-
tices designed to frustrate bargaining, Respondent has sought to
undermine the Union amongst employees in violation of Sec-
tion 8(a)(1) and (5) of the Act.
11. By engaging in the conduct set forth in paragraphs 4 to
10 above, Respondent engaged in over-all bad-faith bargaining
without a sincere desire to reach a collective-bargaining agree-
ment, thereby violating Section 8(a)(1) and (5) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1526
THE REMEDY
Having found that Respondent violated Section 8(a)(5) and
(1) of the Act, I shall recommend that it be ordered to cease and
desist and that it take certain affirmative action necessary to
effectuate the policies of the Act.
Having found that Respondent withdrew its October 8, 2008
proposal in violation of the Act in order to frustrate the negotia-
tion of a collective-bargaining agreement, I shall recommend an
order, which, among other things, requires Respondent to rein-
state its October 8, 2008 proposal for a reasonable period of
time, and that Respondent cease objecting to the inclusion of a
union-security provision in that proposal without a legitimate
business justification for doing so. If the Union notifies the
Respondent within a reasonable time that the October 8 offer as
described herein is accepted, along with any negotiated modifi-
cations, Respondent shall be required to sign a collective-
bargaining agreement containing all of the terms of that offer
along with any negotiated modifications and to accord employ-
ees any wage and benefit increases in the amounts and effective
dates described in the October 8 offer, making employees
whole for any losses of wages and/or benefits retroactively.
Backpay shall be computed with interest as prescribed in New
Horizons, 283 NLRB 1173 (1987).
Having found that Respondent unlawfully insisted on bar-
gaining at a remote location from the bargaining unit on No-
vember 6, 2008, as part of its plan to frustrate bargaining, I
shall recommend an order where Respondent be required to
reimburse the Union for all costs and expenditures, including
reasonable salaries, moneys lost due to absence from work, and
travel expenses incurred by the Union during the preparations
for, and participating in the collective-bargaining negotiations
on November 6, 2008. I do not, as part of this remedy, find that
Respondent is required to reimburse the Union for the cost of
the rental for the room where negotiations where held, since
Respondent offered the use of its attorneys law offices for that
meeting which was rejected by the Union. The Union was
represented by two experienced union officials, and I find in the
circumstances here that their rejection of the Respondent’s
offer was of their own free will.
In order to ensure that the employees will be accorded the
statutorily prescribed services of their selected bargaining agent
for the period provided by law, I recommend that the initial
year of the certification be extended to begin on the date that
Respondent, in compliance with the Order herein, commences
to bargain in good faith with the Union as the bargaining repre-
sentative in the appropriate unit. See Langston Cos., 304 NLRB
1022 (1991); Overnite Transportation Co., 296 NLRB 669
(1989), enfd. 938 F.2d 815 (7th Cir. 1991).
The remedy section of the amended complaint requests that
Respondent be ordered to bargain with the Union on request
within 15 days of the issuance of a Board Order for a minimum
of 24 hours per month and at least 6 hours per session, or any
other schedule mutually agreed upon between the Respondent
and the Union. I do not find this request to be unreasonable
given the nature of the unfair labor practices I have found here,
and I shall include this requirement as part of the recommended
remedy herein, along with the proviso that Respondent agree to
meet with the Union at locations in reasonable proximity to the
bargaining unit.
[Recommended Order omitted from publication.]