Universal Fuel, Inc.

National Labor Relations Board - Administrative Judge Opinions

Oct 20, 2009

05-CA-034622 (N.L.R.B. Oct. 20, 2009)

JD–49–09
Patuxent River, MD
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
UNIVERSAL FUEL, INC.
and 5-CA-34622
INTERNATIONAL ASSOCIATION OF MACHINISTS & AEROSPACE
WORKERS, AFL-CIO, DISTRICT LODGE 4
Patrick J. Cullen, esq., and M. Anastasia Hermosillo, esq.,
for the General Counsel
Brian Bryant, Grand Lodge Representative
of Cincinnati, Ohio for the Charging Party
Chris Mitchell, esq.,
of Birmingham, Alabama for the Respondent
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 Association
of Machinists and Aerospace Workers, AFL-CIO, District Lodge 4 (the Union) against Universal
Fuel, Inc. (Respondent).1 The amended complaint alleges Respondent violated Section 8(a)(1)
and (5) of the Act by failing to bargain in good faith by its overall conduct and by: reneging on
tentative agreements that all job assignments, 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 check-off that
would set, by contract, the amount of fees paid by nonmember employees despite the Union’s
continued refusal to bargain over this permissive subject; 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 demeanor 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 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 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
Corporation, 179 F. 2d 749, 754 (C.A. 2), reversed on other grounds 340 U.S. 474 (1951).
Continued
JD–49–09
5
10
15
20
25
30
35
40
45
50
2
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 twelve months, a
representative period, Respondent, in conducting its business operations described above has
been engaged 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 Section 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 Union won by a vote of 22 to 5,
the Union was certified on February 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 Operator, Lox Plant Lead, Supply Tech (Supply Clerk),
Account Clerk II (Gas Station Operator, MDGAS (MOGAS ) Operator), and Dispatcher
Driver Operators employed by Respondent at its Patuxent River NAS facility; but
excluding all office clerical employees, professional employees, guards, and supervisors
as defined in the National Labor Relations Act.
There were three witnesses who testified during this proceeding. 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 representative. 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 positions.4 Chris Mitchell also testified. Mitchell served as chief
spokesperson for Respondent during all the negotiation sessions, and he has been a practicing
labor attorney since 1973. Mitchell has provided legal services for Respondent since some time
in the 1970’s, and Respondent has had its contract to perform work at NAS Pax River since
some time in the 1970’s.
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 Contract Act (SCA), which results in area wage
_________________________
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.
JD–49–09
5
10
15
20
25
30
35
40
45
50
3
determinations by the Department of Labor setting minimum rates for which Respondent
pays its unit employees. Mitchell testified that if the Respondent and 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 incorporate 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 approved
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 government will not reimburse
Respondent for those higher payments 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, 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 Respondent’s owners, and Provost and Compher for the Union. William McFadden, a
federal mediator, also attended the November 6, session.
Mitchell identified a handwritten proposal which, absent the obvious insertions and
modifications, was presented to the Union 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 Section VI of
Respondent’s June 24 contract proposal.7 Mitchell testified it was his recollection that

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; Eastern GCR; and at Sikorsky Aircraft. Compher
testified the Machinists Union also represents employees at Boeing and Lockheed Martin.
7 Compher testified his notes reflect that there was a tentative agreement 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
Continued
JD–49–09
5
10
15
20
25
30
35
40
45
50
4
there was a tentative agreement 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, “Section 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 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
_________________________
notes of Compher and Mitchell and as to their testimony 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?”
9 Compher testified he recalled Mitchell objecting to the Union’s union 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 compromise 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 proposal language during
Continued
JD–49–09
5
10
15
20
25
30
35
40
45
50
5
Mitchell testified that, during the October 8 session, Compher explained the Union’s
ratification process. He testified 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 company 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 investigating grievances, the cost of various
examinations and licenses, 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 truck drivers to
be fuel supply distribution operators, which would have given them a substantial pay
increase; union security; 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, Respondent 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 other
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 making 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 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, requesting the resumption of
negotiations during the week of October 13 to 18. Compher went on to state, “The Union
is also requesting the assistance of the Federal Mediation and Conciliation Services and
will contact them for assistance and hope that you will agree also. As we have in the past
the Union will provide a meeting place at the Union facility at no cost to the parties.”
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 October 8 offer was Respondent’s last an final offer.
Mitchell tended 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
_________________________
contract proposal meetings held by the Union.
10 Mitchell attached to his October 15 email a written version of Respondent’s offer made
verbally during the October 8 negotiation session. Respondent’s written offer emailed on
October 15, is referred to herein as Respondent’s October 8 offer.
JD–49–09
5
10
15
20
25
30
35
40
45
50
6
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 October 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
business 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:
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 employee 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 indicated in my e-mail, the Union is prepared at any time to
resume negotiations as requested. Without our proposed Union Security, we will not take
it back to our members for ratification.”11

11 The Union’s proposal on union security included the following language:
(A) All employees in the bargaining unit must as a condition of continued 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
Continued
JD–49–09
5
10
15
20
25
30
35
40
45
50
7
Compher testified the next and final bargaining session was held on November 6, in
Birmingham, Alabama. Compher testified that when they last met on October 8,
Respondent indicated 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 Union coming to Alabama. After discussing it with
Compher’s superiors, the Union agreed to meet in Alabama. Compher requested, through
McFadden, that they meet that week. However, McFadden informed Compher that
Respondent agreed to meet on November 6.12
Compher testified that he and Provost were paid by the Union 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
Respondent 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 facility, 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 testified they had also reached a tentative agreement on shift
differential. 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
_________________________
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 employment who fails to tender the
agency fee or initiation, reinstatement, or periodic dues uniformly required, shall be
notified in writing of his delinquency. 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 standards permitted by
NLRB and court decisions relating to Union shop requirements.
12 Compher’s testimony that Respondent refused to return to Maryland was not denied.
JD–49–09
5
10
15
20
25
30
35
40
45
50
8
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 arbitration; 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 Respondent, 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 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 Union received a document
from Mitchell labeled, “COMPANY PROPOSAL B.” It is stated on the cover page of the
document: CHANGES: (1) Section V; (2) Section VI; (3) Section VII-one sentence; (4)
Section IX; (5) Section X; and (6) Section XI. Provost testified that at the time the Union
was tendered 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 examples 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

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 contract.
14 The first page of Mitchell’s notes for November 6, state “7 unresolved issues.”
JD–49–09
5
10
15
20
25
30
35
40
45
50
9
bargaining and contract administration. Employees 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 payroll, 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 as long as
they remain members of the Union; provided 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 employee’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, irrevocable 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 immediately following the week the payroll deductions are made.
SECTION IX DISCIPLINE & DISCHARGE, contained the following provision:
The Company retains the right to discipline and discharge 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 review 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, “we 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 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 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
JD–49–09
5
10
15
20
25
30
35
40
45
50
10
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 testified 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 Honor.”
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 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 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 delegates
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 Respondent. Provost testified that
during the meeting, both he and Compher asked Mitchell more than once if he would be
interested in talking to the Union’s general counsel concerning Respondent’s proposal on
union security, or to the Union’s International President. Provost testified Mitchell did not
respond to that offer. Provost testified that on November 6, the Union never said or
insisted that non members pay a hundred percent of dues. He testified that the Union’s
proposal on union security did not require that they do so.15
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

15 During his testimony, Provost was shown by Mitchell and he identified a contract NAS
Patuxent River where Provost served as lead negotiator for the Union with DynCorp
International LLC. The signature page is dated September 12, 2007. The union security
clause in that contract contains a provision stating, “Union membership is required 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 representational activities.” Mitchell testified
he did not recall where he obtained a copy of the DynCorp contract, stating it was in a file
of mine labeled, “Union Contract Proposal.”
JD–49–09
5
10
15
20
25
30
35
40
45
50
11
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 employees 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 verbal 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 October 8 proposal was still on the table. Provost testified that
at the end of the November 6 meeting there were additional open issues besides union
security, including: the grievance 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.”
Provost testified Respondent’s November 6 changes really 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
regressed from them and took them provisions away, like layoff and recall. If there was a
layoff or recall, they already 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
JD–49–09
5
10
15
20
25
30
35
40
45
50
12
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 previously discussed. Compher explained
Respondent made regressive 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 testified 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
negotiations. Now you want to pull them back, pull the rug out and renege on deals and
agreements that we had?” Compher testified 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 specifically wanted to
know why, you know, again, this is bullshit, 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 introduced new subjects
into the management rights clause, including subcontracting. Compher testified that on
November 6, there was discussion of the subcontracting proposal. He testified, “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

16 Compher initially testified it was identified as Plan B, but corrected his testimony
stating it was Proposal B. Compher also referred to the document as “Plan B” at various
points in his testimony.
JD–49–09
5
10
15
20
25
30
35
40
45
50
13
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 addressed Union security.
He testified, “It 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 of an agency fee. Compher testified, “I explained
very simply to Mr. Mitchell across the table that we can't bargain this percentage, 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 international 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 Union’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 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. 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 become 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 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 percent of dues. 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 collective-bargaining
representation. He testified, “that'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
check off was in Respondent’s Proposal B. However, Compher could not recall whether it
was discussed on November 6. Compher testified it was the percentage on union security
that was driving the talks.18

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 check off before November 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 check off.
JD–49–09
5
10
15
20
25
30
35
40
45
50
14
In reviewing, Proposal B, Section 11, Compher testified that picketing had not been
discussed by the parties prior to November 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 Union’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 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 labeled the November 6, proposal as Proposal B.
Compher testified the Union never agreed to accept the modified version of
Proposal B, if Respondent would accept union security. Compher testified he never told
Respondent that if the company would agree to a hundred 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 highlighted 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 security. 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 agency
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
JD–49–09
5
10
15
20
25
30
35
40
45
50
15
proposal was, and I explained to you several times during negotiations, if any employee
wanted to object to paying dues, we would tell them how to go, where to go, and what to
do. I explained to you that several times. You can't dispute that.”
Compher could not recall whether on November 6, the Union 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,
concerning strikes and lockouts. He testified Provost may have tendered 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 state there
were seven unresolved issues.19 Mitchell testified there was some discussion pertaining
to the zipper clause contained 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, proposal which he labeled at the hearing as Proposal A. When asked if he
labeled it as Proposal A during negotiations, Mitchell 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 expressed
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 document and it was plugged
in there. That document had subcontracting on it. There was a question about what could
or would Universal Fuel subcontract, and I said I couldn't think of anything 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 during the meeting. Mitchell testified when the
Union came back from their caucus they presented their counterproposal to Proposal 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 counter proposal was part written and part verbal. He
testified the Union stated concerning Proposal B, Section 5: item 2, they wanted job

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 consultation with his client, Mitchell prepared Proposal B.
JD–49–09
5
10
15
20
25
30
35
40
45
50
16
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 seniority. 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 discipline and discharge. Concerning the
grievance procedure, the Union wanted the language that was contained in the October 8,
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 counterproposal. He testified the things
Respondent agreed to change included making layoff and recall decisions by seniority,
discharging 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 increasing 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 disagreements 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 parties 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 November 6, made changes to
items that had previously been tentatively 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 employees. Mitchell testified the general practice is to take the
Navy's flight schedule posted on the board, and the part-time employees 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 testified it was
his understanding that seniority is used as a factor in determining the schedule of full time
employees. Mitchell later testified, “if 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 pre-hearing affidavit in presenting
Continued
JD–49–09
5
10
15
20
25
30
35
40
45
50
17
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 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.” Mitchell testified Respondent kept
the 75 percent agency fee in Proposal B until the proposal expired on December 1.
During his testimony, Mitchell referred to Respondent’s written October 8 proposal
_________________________
Proposal B to the Union that he told the Union that the Respondent was looking for more
management security in exchange 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 was asking for, for union security, and
proposed in return greater flexibility 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
management 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 respecting 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.
JD–49–09
5
10
15
20
25
30
35
40
45
50
18
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 November 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 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.
Mitchell explained that at the conclusion of bargaining on November 6, Respondent
was withdrawing its contract proposals if not accepted 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 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
contract proposals without being reimbursed by the government. Mitchell testified that
was the reason for withdrawing the proposals 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 purpose of
these documents is just to show the general understanding 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 remained 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
wants to join and pay dues or pay an agency fee with the Union, 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

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.
JD–49–09
5
10
15
20
25
30
35
40
45
50
19
that everybody's rights should be respected and that those people, though they may be
few in number, deserve 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 invited 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 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. 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 payment 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 Company 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 Birmingham. 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 management rights, weaken the
grievance and arbitration procedure, and SENIORITY, and NO-STRIKE AND NO-
JD–49–09
5
10
15
20
25
30
35
40
45
50
20
LOCKOUT.
The Union went to Birmingham in an effort to resolve the issues and negotiate a
Contract, but the only thing the Company wanted to do was “REGRESS BARGAIN”
when the Company threw (sic) out another offer “PLAN B” which is an unfair labor
practice and we are going to file “UNFAIR LABOR PRACTICE” charges with the
LABOR BOARD. The Company’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 Contracting
Officer will not accept it without a Contract with your Union and we will show you
that in a Letter from the Contracting 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 reclassifying the truck drivers to FSDOs. Mitchell
testified he was unsure whether the parties reached agreement on arbitration language
because at the end of the day the Union stated they wanted the language from Proposal A
back in. He testified, “That would indicate, perhaps, agreement with the company'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 proposal 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 subject. We are ready to meet and discuss this and other matters 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 two 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 proposed
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 PROPOSAL 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 Proposal B no one from Respondent told the
Union that Respondent’s October 8 proposal was still on the table. Provost testified that
after Mitchell reviewed the changes, the parties took a break. Provost testified, “we 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
JD–49–09
5
10
15
20
25
30
35
40
45
50
21
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 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.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 testified 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 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 labeled the November 6, proposal as Proposal B. Compher denied 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 testified that during the
November 6, meeting, they were not informed 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 accused 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 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
referring to Respondent’s October 8 proposal.” However, Mitchell then went on to testify
as follows:

22 Provost credibly testified Respondent’s November 6 changes really upset the Union
because they were changes to prior tentative agreements, and to benefits the employees
already enjoyed in the area of seniority.
JD–49–09
5
10
15
20
25
30
35
40
45
50
22
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 testified that at the conclusion of bargaining on November 6,
Respondent withdrew its contract proposals if they were not accepted 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 accepted by December 1.” He testified at that
time they were not calling it Proposal A, “It was just called the October 8th proposal.”
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 bargaining 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

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, proposal as Proposal B, was sufficient to apprise the Union officials
that the October 8 proposal was still on the table. Admittedly, these documents were not
presented to the Union at the bargaining table on November 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
alternative to the prior proposal. Second, I have concluded that the Union was never informed
that the October 8 proposal was labeled as Proposal A, thereby undermining any claim that
merely labeling the November 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
replacement and not an alternative to the October 8 proposal, and Respondent’s officials never
sought to clarify the matter. Thus, I do not credit Mitchell’s claim, over the Union officials’
Continued
JD–49–09
5
10
15
20
25
30
35
40
45
50
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 constitutional
guidelines concerning dues would subject the Local to charges with the Department of
Labor. Provost testified Respondent’s response was they believed the Union had the
ability to negotiate agency fee payer amounts.
Provost testified the Union is required by law to publish employees Beck rights
once a year, so the members have the ability to state they are a Beck objector or have
nonmember status. Provost testified that during the November 6, meeting, both he and
Compher asked Mitchell more than once if Mitchell would be interested in talking to the
Union’s general counsel concerning Respondent’s proposal on union security, or to the
Union’s international president. Provost testified Mitchell did not respond to that offer.
Provost testified that on November 6, the Union never said or insisted that non members
pay a hundred percent of dues. He testified that the Union’s proposal on union 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 objectors 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 concerning 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 illegal. If you don't
believe me, here is my attorney's or general counsel's name and number and here's our
international president'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 because 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 percent 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 collective-bargaining representation. He
_________________________
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.
JD–49–09
5
10
15
20
25
30
35
40
45
50
24
testified, “that's the part of what we were trying to tell the Company we would help them
do, guide them in the right direction.” 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.”
Compher testified that during negotiations from June through November, the Union
only made one proposal on union security. 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 reduced but it was explained to Mitchell
several times across the table. Compher testified, “I explained to you exactly what our
proposal was, and I explained to you several times during negotiations, if any employee
wanted to object to paying dues, we would tell them how to go, where to go, and what to
do. I explained 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. 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.” 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
illegal. 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 discussion 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 informed Mitchell that agency fee payers did not have to pay one hundred 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 insisted
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 fees 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 advice on the Union’s Beck policy. I do not find Mitchell’s
testimony 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
Continued
JD–49–09
5
10
15
20
25
30
35
40
45
50
25
Compher testified that during bargaining sessions prior to November 6, Mitchell 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 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 testified 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 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 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 Respondent ever suggested a realistic
compromise, although Mitchell admittedly at some point was in possession of the DynCorp
contract which had an alternative union security provision, which had previously been
agreed to by the Union. I have concluded that the evidence reveals that the Union
steadfastly 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 Proposal B. Mitchell testified Respondent then
made a counterproposal that included most of the Union's language on no strikes.
Mitchell identified Respondent’s written counter proposal concerning the no strike clause,
_________________________
was unlawful. Moreover, the proposal was limited by its terms to requiring employees to be in
good standing “as in compliance with standards permitted by NLRB and court decisions
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 Section 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 tracking the language of
Section 8(a)(3) a union security provision “incorporates all of the refinements and rights that
have become associated with the language of Section 8(a)(3) under General Motors and Beck.”
See, Teamsters Local 75 (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 Section 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 artfully drawn, there can be no doubt that at this point in time the Machinist’s
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).
JD–49–09
5
10
15
20
25
30
35
40
45
50
26
which omits any language 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 Machinists 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 Mitchell 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 Companies, Inc., 304 NLRB 1022, 1060 (1991), the following principles
were set forth:
… there can be little doubt that the obligation to bargain collectively does not compel
either party to agree to a proposal or require the making of a concession, NLRB v.
American National Insurance Co., 343 U.S. 395, 404 (1952); 29 U.S.C. § 158(d). Nor
may the Board directly or indirectly, compel concessions 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 action 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 party'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 determine 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);
Hydrotherm, 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

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 advanced 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 Manufacturing Co., 205 F.2d 131, 134-135, 139 (1st Cir. ) (1953), certiorari
denied, 346 U.S. 887...".
JD–49–09
5
10
15
20
25
30
35
40
45
50
27
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 proposed
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 virtually all significant terms and conditions of employment, including
discharge, discipline, layoff, recall, subcontracting and assignment of unit work to supervisors."
The Court went on to state that, "The 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 check off based on
philosophical grounds without business justification has been held to constitute evidence of bad
faith bargaining. See. Chester County Hospital, 320 NLRB 604, 622 (1995), enfd. 116 F.3d 469
(3rd 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; 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 determine 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
demands that are consistently and predictably unpalatable to the other party; unilateral
changes in mandatory subjects of bargaining; and insistence to impasse on
nonmandatory subjects of bargaining, all of which are present in the instant 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 bargaining can be
evidence of bad-faith bargaining. The Board has also held that the assertion of a
proposal disingenuously is an indicia of bad-faith bargaining. (Footnotes omitted.)
From all of the above, and the timing of the Respondent's proposal, its regressive
nature, without justification, the Respondent's seemingly pretextual explanation of the
purpose therefore, and the Respondent's apparent disingenuous 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

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.
JD–49–09
5
10
15
20
25
30
35
40
45
50
28
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 (2nd Cir. 2003); Driftwood Convalescent
Hospital, 312 NLRB 247 (1993); Homestead Nursing Center, 310 NLRB 678 (1993); and Arrow
Sash & Door Co., 281 NLRB 1108, n. 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
bargaining. A party may advance a proposal on a permissive subject 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 Performing Arts, 351 NLRB 143, 144
(2007). The Board has also held that a repeated proposal to change the scope of the unit, a
non-mandatory 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, particularly when no justification is presented, places a hardship on the
employees and their union and is indicative of bad faith bargaining, 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 certified 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 November 6, meeting was held on
October 8. At the outset of negotiations, Respondent made the Union aware that any collective-
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 discipline
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 investigating grievances, the cost of examinations and licenses,
the grievance procedure concerning what could be taken to arbitration, shoe allowance, a
request to reclassify the truck driver 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, meeting,
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,

27 While Respondent’s counsel testified he was not aware of any prior layoffs, Compher
credibility testified he was informed at the bargaining table by Respondent’s management
officials that seniority had been the practice as to the above enumerated items.
JD–49–09
5
10
15
20
25
30
35
40
45
50
29
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 Mitchell 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 agreements on discipline and on seniority.
Thereafter, Compher sought the assistance of a federal mediator 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
committee, 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 mediator. It
was not until 10:45 a.m. that Respondent’s officials presented Respondent’s Proposal B.
to the Union. Proposal B contained a sweeping management rights clause giving
Respondent the ability to subcontract all work, exclusive control over job assignments and
promotions, scheduling, the assignment 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 presented this management rights proposal for the first time on November 6,
after the parties had had six prior bargaining sessions and after the Union had raised no
objection to Respondent’s prior proposal on management rights. Respondent made this
proposal on November 6, knowing that there was a December 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
proposal after having heard there were relatively few open issues at the end of the
October 8, session, and after requiring the Union to absorb considerable expense in
traveling from the Maryland 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 management rights clause,
Respondent reneged on tentative agreements 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. Respondent 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 proposal 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

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.
JD–49–09
5
10
15
20
25
30
35
40
45
50
30
could not bargain over the amounts to be paid by agency fee procedures, that to do so
would violate the Union’s constitution, and would be a violation of the Union’s Beck
procedures. 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 informing 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 minute 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 Respondent that they could not
bargain over the fees of agency fee payers, Respondent persisted in doing so. By
insisting on bargaining on the Union’s dues structure over the Union’s objection
Respondent unlawfully insisted on bargaining on a permissive 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 parties 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 proposal 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 stated in his pre-
hearing 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 November 6, meeting,
following the Union’s strong protest, Respondent 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

29 Prior to November 6, Respondent had repeatedly objected to Union security on
philosophical grounds. The Board has held that such conduct concerning objecting to
union security, absent a legitimate business 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 employees evidenced unwillingness to compromise. Moreover, the
DynCorp contract contained union security language which the Union had previously 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.
JD–49–09
5
10
15
20
25
30
35
40
45
50
31
November 6, meeting ended at 2:15 p.m. I do not find Respondent’s concessions at the
end of the meeting demonstrate an intent to bargain 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 re-bargain 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 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,

30 The proposal eliminating the right to picket was included in Proposal B, under Section XI
Strikes and Lockouts. Counsel for the General Counsel argues the proposal banning picketing
of “any kind” is unlawful 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. Magnavox Company of
Tennessee, 415 U.S. 322 (1974). 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, employees 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 Section 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
(3rd Cir. 2006), the Board addressed 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 pursuant 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 involved 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’ section 7 rights to picket under all
circumstances. This is because I have found that Respondent 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.
JD–49–09
5
10
15
20
25
30
35
40
45
50
32
by its course of conduct, engaged surface bargaining designed to frustrate rather reach
agreement and that in doing so Respondent violated Section 8(a)(1) and (5) 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 Respondent’s proposals by December 1, that they were being withdrawn. With
Compher denying Mitchell’s claim that he 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 accepted 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, regardless of whether they informed the Union of this on November 6. The
General Counsel seeks as a remedy that Respondent be required to reinstate its October
8 proposal. Counsel 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 General 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 three 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 three 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); Northwest 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 legitimate
business justification for doing so.31
Following the November 6, session, Mitchell approved a memo under Evans
signature which was distributed to all bargaining 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 employees. All pay and benefit items and
other contract language were agreed upon.” The memo falsely stated, that “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.” In this regard, I have
credited Compher and Provost’s testimony that they repeatedly explained to Mitchell that
agency fee payers did not have to pay the full amount of dues.

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.
JD–49–09
5
10
15
20
25
30
35
40
45
50
33
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 truck drivers 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 subcontracting. 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 mischaracterizes the tenor of the
November 6 meeting, by attempting to cast the blame on break down of negotiations on
the Union’s position concerning on union security, rather than stating Respondent 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 meeting.
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 frustrate bargaining and to undermine the Union, and that by issuing the memo
Respondent engaged in conduct violative of Section 8(a)(1) and (5) of the Act.
Finally, I find that Respondent’s refusing to meet on November 6, except at a great
distance from Respondent’s Maryland location worked a hardship on the Union, excluded
employees from attendance, and was another Act designed to frustrate 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:
All full-time and regular part-time Mechanics, Mechanic 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 Respondent at its Patuxent River NAS facility; but
excluding all office clerical employees, professional employees, guards, and supervisors
as defined in the National Labor Relations Act.
4. By the terms of its November 6, 2008, contract offer, Respondent reneged on

32 This issue was not specifically alleged as a complaint allegation but it was listed in the
remedy section of the complaint, and fully litigated at the hearing.
JD–49–09
5
10
15
20
25
30
35
40
45
50
34
tentative agreements previously reached with the Union that all job assignments, promotions,
layoffs and recalls will be controlled by seniority; and that all discipline and discharge will be for
just cause; and Respondent engaged 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)(1) and (5) of the Act.
5. By refusing to accede to union security and dues checkoff based on philosophical
grounds without advancing any legitimate 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 significant proposal on
subcontracting as well as a proposal that employees waive all rights to picket, without a
legitimate justification 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 collective-bargaining
agreement in violation of Section 8(a)(1) and (5) 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 bargaining 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 preventing an agreement with the
Union was the issue of union security, while at the same time engaging in unfair labor practices
designed to frustrate bargaining, Respondent has sought to undermine the Union amongst
employees in violation of Section 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
agreement, thereby violating Section 8(a)(1) and (5) of the Act.
THE REMEDY
Having found that Respondent violated Section 8(a)(1) and (5) 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 negotiation of a collective-bargaining agreement, I shall
recommend an order, which, among other things, requires Respondent to reinstate 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 modifications, 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 employees 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
JD–49–09
5
10
15
20
25
30
35
40
45
50
35
Horizons for the Retarded, 283 NLRB 1173 (1987).
Having found that Respondent unlawfully insisted on bargaining at a remote
location from the bargaining unit on November 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, monies 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
representative 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.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended33
ORDER
The Respondent, Universal Fuels, Inc., of Daleville, Alabama, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively in good faith concerning wages, hours, and other
conditions of employment with the Union, as the exclusive bargaining representative of the
employees in the following appropriate unit:
All full-time and regular part-time Mechanics, Mechanic 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 Respondent at its Patuxent River NAS facility; but
excluding all office clerical employees, professional employees, guards, and supervisors

33 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
JD–49–09
5
10
15
20
25
30
35
40
45
50
36
as defined in the National Labor Relations Act.
(b) Reneging on tentative agreements such as that all job assignments, promotions,
layoffs and recalls will be controlled by seniority; and that all discipline and discharge will be for
just cause while making regressive proposals with the intent of frustrating the negotiation of a
collective-bargaining agreement.
(c) Refusing to accede to union security and dues checkoff on philosophical grounds
without advancing any legitimate business justification for doing so.
(d) Insisting 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 as to this
permissive subject of bargaining.
(e) Interjecting significant proposals such as unlimited subcontracting and that the Union
waive the employees’ right to picket during late stages of negotiation without a legitimate
justification for doing so.
(f) Withdrawing all contract proposals because the Union did not accept them in
time for them to be approved by the United States government.
(g) Refusing to meet with the Union at a location in reasonable proximity to the
location of the bargaining unit.
(h) Falsely informing employees that the only issue preventing an agreement with the
Union was the issue of union security, while there were other open issues, and while at the
same time engaging in unfair labor practices designed to frustrate bargaining.
(i) In any like or related manner, interfering with, restraining 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 bargaining
representative of its employees in the above-described bargaining unit with respect to
wages, hours, and other terms and conditions of employment, pursuant to the schedule
described in the Remedy section of this decision, and, if an understanding is reached,
embody such understanding in a signed agreement.
(b) Reinstate its October 8, 2008, contract proposal, without rejecting union security
provisions without legitimate business justification and afford the Union a reasonable
period of time to accept that offer or to make counterproposals, and if an agreement 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 described in the
Remedy section of this decision.
(c) Reimburse the Union for costs and expenditures for expenses incurred related
to the November 6, 2008, negotiation session in the manner set forth in the Remedy
section of this decision.
(d) Within 14 days after service by the Region, post at its facility at the Naval Air Station
located in Patuxent River, Maryland copies of the attached notice marked “Appendix.”34 Copies
of the notice, on forms provided by the Regional Director for Region 5, after being signed by the
Respondent's authorized representative, shall be posted by the Respondent immediately upon
receipt and maintained for 60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these proceedings, the Respondent has

34 If this Order is enforced by a Judgment of the United States Court of Appeals, the words
in the notice reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD”
shall read “POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF
APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”
JD–49–09
5
10
15
20
25
30
35
40
45
50
37
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 current employees and former
employees employed by the Respondent at any time since June 24, 2008.
(e) Within 21 days after service by the Region, file with the Regional Director a sworn
certification 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, be, and the same hereby is, extended for a period of 1 year commencing
from the date on which the Respondent begins to comply with the terms of this Order.
Dated, Washington, D.C., October 20, 2009
_____________________
Eric M. Fine
Administrative Law Judge
JD–49–09
5
10
15
20
25
30
35
40
45
50
38
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 violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist any union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT refuse to bargain collectively in good faith concerning wages, hours, and
other conditions of employment with the International Association of Machinists & Aerospace
Workers, AFL-CIO, District Lodge 4, as the exclusive bargaining representative of the
employees in the following appropriate unit:
All full-time and regular part-time Mechanics, Mechanic 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 Respondent at its Patuxent River NAS facility; but
excluding all office clerical employees, professional employees, guards, and supervisors
as defined in the National Labor Relations Act.
WE WILL NOT renege on tentative agreements we have reached with the Union such as
that all job assignments, promotions, layoffs and recalls will be controlled by seniority; and that
all discipline and discharge will be for just cause while making regressive proposals with the
intent of frustrating the negotiation of a collective-bargaining agreement.
WE WILL NOT refuse to accede to union security and dues checkoff in negotiations with
the Union by proclaiming philosophical differences, and without advancing any legitimate
business justification for doing so.
WE WILL NOT insist 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 as to
this permissive subject of bargaining.
WE WILL NOT interject significant proposals such as unlimited subcontracting during
late stages of negotiation without a legitimate justification, as well interject a proposal that Union
waive employees’ right to picket with the intent of frustrating the negotiation of a collective-
bargaining agreement.
WE WILL NOT withdraw all contract proposals because the Union did not accept
them in time for them to be approved by the United States government.
WE WILL NOT refuse the Union’s request to meet with the Union and bargain at a
location in reasonable proximity to the location of the bargaining unit.
WE WILL NOT falsely inform employees that the only issue preventing an agreement
with the Union was the issue of union security, when there were other open issues, and while at
JD–49–09
5
10
15
20
25
30
35
40
45
50
39
the same time we were engaging in unfair labor practices designed to frustrate bargaining.
WE WILL NOT in any like or related manner, interfere with, restrain or coerce our
employees in the exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL on request, bargain in good faith with the Union, as the exclusive
bargaining representative of our employees in the above-described bargaining unit with
respect to wages, hours, and other terms and conditions of employment, pursuant to the
schedule described in the Board’s decision and, if an understanding is reached, embody
such understanding in a signed agreement.
WE WILL reinstate our October 8, 2008, contract offer, without rejecting union
security provisions without a legitimate business justification, and afford the Union a
reasonable period of time to accept that offer or to make counterproposals, and if an
agreement is reached sign a contract, with retroactive pay and benefits based on the wage
and benefit rates contained in that offer.
WE WILL reimburse the Union for costs and expenditures for expenses incurred
related to the November 6, 2008, negotiation session in the manner set forth in the
Board’s decision.
UNIVERSAL FUEL, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
103 South Gay Street, The Appraisers Store Building, 8th Floor
Baltimore, MD 21202-4061
Hours: 8:15 a.m. to 4:45 p.m.
410-962-2822.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 410-962-3113.