Wellstream Corp.

National Labor Relations Board - Board Decisions

Feb 8, 1994

313 N.L.R.B. 698 (N.L.R.B. 1994)

698
313 NLRB No. 117
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
The Respondent also asserts that the judge ignored substantial evi-
dence and that the judge had a predetermined view of the case. Ac-
cording to the Respondent, that evidence could not have been con-
sidered, as the judge appeared to sleep through at least one-third of
the first day of hearing. We agree with the General Counsel that
there is nothing which supports the Respondent’s contention that the
judge appeared to sleep during any part of the hearing. Rather, a re-
view of the record indicates that the judge was alert and an active
participant in the proceedings throughout the hearing. Further, in his
decision, the judge gave full consideration to all the evidence as
demonstrated by his complete discussion of the issues. There is no
indication that the judge prejudged the case or displayed any bias
in his conduct of the hearing or in his analysis or discussion of the
evidence. Accordingly, we find no merit in the Respondent’s allega-
tions.
2 The Respondent attacks the judge’s finding that the Respondent
violated Sec. 8(a)(1) through its actions in connection with a betting
pool on the election, contending that the finding is inconsistent with
the Board’s treatment of the ‘‘betting poster’’ in Best Western Exec-
utive Inn, 272 NLRB 1315 (1984). We disagree. The Board found
that the poster was not objectionable party conduct because it was
not attributable to the employer, because it was anonymously posted
on a wall and ultimately removed by the employer. Id. In the present
case, the idea for the betting pool came from management, which
instructed an employee to maintain the list, and the list, showing
names of who was betting on the ‘‘Company’’ and who on the
‘‘Union,’’ was kept on a desk in a supervisor’s office, where super-
visors could see who was taking which side. Furthermore, here, un-
like in Best Western, the pool was conducted in a context of numer-
ous other coercive threats and actions.
We likewise find no merit to the Respondent’s exceptions to the
judge’s finding that the Respondent was seeking to thwart the union
campaign when it implemented an expanded dress code requiring the
wearing of uniforms even when visitors were not in the plant. We
note that although employee Grant Stevenson could not state exactly
when the new policy on uniforms was instituted, he did say he was
sure that it was instituted in late May or early June, after employee
Chris Parker had sent a letter to the employees soliciting their sup-
port for the union campaign.
We agree with the judge that the Respondent violated Sec. 8(a)(1)
of the Act by soliciting grievances from employee Chris Parker and
implicitly promising to remedy them. Accordingly, we find it unnec-
essary to pass on whether the Respondent also violated Sec. 8(a)(1)
by soliciting grievances from employee Daniel Battistini. Such a
finding would be cumulative and would not affect the Order.
3 The judge inadvertently failed to include in his Conclusions of
Law, his finding that the Respondent implemented its uniform policy
in order to curtail the wearing of union T-shirts as well as other
union insignia. Accordingly, Conclusion of Law 7 is modified to
read as follows: ‘‘By its implementation and enforcement of a new
uniform policy in order to curtail the wearing of union T-shirts and
other union insignia, the Respondent violated Section 8(a)(1) of the
Act.’’ We shall also modify the recommended Order accordingly.
We agree with the judge that Objections 1,A and 1,C be sustained
since the Respondent engaged in numerous violations of Sec. 8(a)(1)
also alleged as objectionable conduct warranting the setting aside of
the election. However, we find it unnecessary to pass on the merits
of Objection 2,C, which alleged that the Respondent engaged in ob-
jectionable conduct by its distribution of a letter to all employees
which threatened plant closure, and threatened employees with loss
of employment in the event of a strike.
4 We shall modify the judge’s recommended Order to delete any
reference to threats of plant closure. The only complaint allegation
which alleges such a threat was withdrawn. Further, although the
judge at one point in his decision states that he had earlier made
such a finding, in fact the decision contains no finding that the Re-
spondent committed an unfair labor practice by making such a
threat. (The threat of plant closure alleged in the objections was not
alleged in the complaint or discussed by the judge in conjunction
with his unfair labor practice findings.)
Wellstream Corporation and United Association of
Journeymen and Apprentices of the Plumbing
and Pipefitting Industry of the United States
and Canada, Local Union No. 229. Cases 15–
CA–11631, 15–CA–11650, 15–CA–11650–2, 15–
CA–11650–3, 15–CA–11650–4, and 15–RC–7620
February 25, 1994
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND TRUESDALE
The issue presented is whether the Respondent Em-
ployer violated Section 8(a)(1) and (3) of the Act and
whether the election should be set aside.
On March 15, 1993, Administrative Law Judge
Lawrence W. Cullen issued the attached decision. The
Respondent filed exceptions and a supporting brief, the
General Counsel and the Charging Party filed limited
cross-exceptions and answering briefs to the Respond-
ent’s exceptions.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings,1 findings,2 and conclusions3 and to adopt the rec-
ommended Order as modified.
ORDER4
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent,
Wellstream Corporation, Panama City, Florida, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the Order as modified.
1. Substitute the following for paragraphs 1(b) and
(c).
‘‘(b) Threatening employees with discharge, unspec-
ified discipline, and the futility of their support for or
the selection of a union, with the withholding of their
normal shift rotation, with a lawsuit, or with loss of a
wage increase.
‘‘(c) Instituting and disparately enforcing a uniform
policy in order to restrain and inhibit the wearing of
union T-shirts and other union insignia.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
699WELLSTREAM CORP.
IT IS FURTHER ORDERED that the election held in
Case 15–RC–7620 is set aside and that the case is re-
manded to the Regional Director to conduct a new
election where he deems the circumstances permit the
free choice of a bargaining representative.
[Direction of Second Election omitted from publica-
tion.]
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 the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT interrogate you concerning your union
membership, sympathies, and activities and those of
your fellow employees.
WE WILL NOT threaten you with discharge, unspec-
ified discipline, and the futility of your support or se-
lection of a union; WE WILL NOT threaten you with
withholding your normal shift rotation, with filing a
lawsuit, and with loss of a wage increase.
WE WILL NOT implement and enforce a uniform pol-
icy in order to prohibit you from wearing union T-
shirts and other union insignia.
WE WILL NOT distribute and maintain an overly
broad no-solicitation rule.
WE WILL NOT refuse to follow our normal practices
of shift rotation for prounion employees.
WE WILL NOT institute and conduct a betting pool
among our employees on the outcome of a National
Labor Relations Board representation election.
WE WILL NOT solicit grievances from our employer
with the implicit promise to remedy them in order to
discourage them from choosing union representation.
WE WILL NOT disparately limit access of prounion
employees to the second and third floors of our facil-
ity.
WE WILL NOT assign more onerous duties to our
employees who support the Union.
WE WILL NOT issue written warnings, suspend, or
discharge our employees because of their membership
in or support for the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
rights guaranteed them by Section 7 of the Act.
WE WILL rescind our unlawful written warnings
issued to Chris Parker and Daniel Battistini, our un-
lawful suspensions of Chris Parker and Daniel
Battistini, and our unlawful discharge of Daniel
Battistini. WE WILL make Jon Eric Clenney, John
Chris Parker, and Daniel Battistini whole for all loss
of earnings and benefits including seniority and other
rights and privileges sustained by them because of our
unlawful conduct, with interest, as a result of our fail-
ure to rotate Clenney, Parker, and Battistini from shift
to shift, our suspensions of Chris Parker and Battistini,
and our discharge of Daniel Battistini. WE WILL offer
Daniel Battistini full reinstatement to his former posi-
tion or to a substantially equivalent position if his
former position no longer exists.
WE WILL remove from our files any references to
the unlawful failure to rotate employees Jon Eric
Clenney, John Chris Parker, and Daniel Battistini, the
unlawful issuances of written warnings to Parker and
Battistini, the unlawful suspensions of Parker and
Battistini, and the unlawful discharge of Battistini and
will inform them in writing that this has been done and
that the unlawful conduct will not be used against
them in any manner in the future.
Our employees have the right to join and support
United Association of Journeymen and Apprentices of
the Plumbing and Pipefitting Industry of the United
States and Canada, Local Union No. 229 or to refrain
from doing so.
WELLSTREAM CORPORATION
Kathleen McKinney, Esq., for the General Counsel.
Douglas Sullenberger, Esq., of Atlanta, Georgia, for the Re-
spondent.
Brian A. Powers, Esq., of Washington, D.C., for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge. This
case was heard before me on July 28, 29, and 30, 1992, at
Panama City, Florida. The hearing was held pursuant to an
order rescheduling hearing in the above-entitled consolidated
complaint and representation matter entered by the Regional
Director for Region 15 (the Regional Director) of the Na-
tional Labor Relations Board (the Board) on June 11, 1991.
The original complaint in Case 15–CA–11631 was filed by
the Regional Director on September 27, 1991, and is based
on a charge filed by the United Association of Journeymen
and Apprentices of the Plumbing and Pipefitting Industry of
the United States and Canada, Local Union No. 229 (the
Charging Party, the Petitioner, or the Union) on September
12, 1991. On October 11, 1991, the Regional Director en-
700 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1991 unless otherwise specified.
2 The appropriate unit is:
All production and maintenance employees employed by the
Employer at its Panama City, Florida, facility including quality
control inspectors, assistant supervisor, supervisor trainees, and
receiving clerk, excluding all office clerical employees,
draftsmen, production scheduler, laboratory technician, adminis-
trative technicians, document control clerk, inventory clerk, as-
sistant buyer, technical assistants, manufacturing clerk, manufac-
turing engineers, professional employees, guards and supervisors
as defined in the Act.
tered a Report on Objections and order consolidating cases
and directing hearing in Cases 15–RC–7620 and 15–CA–
11631. In his Report on Objections, the Regional Director
determined that pursuant to a Stipulated Election Agreement
approved on July 12, 1991,1 an election was held among cer-
tain employees of Wellstream Corporation (the Employer, the
Respondent, or the Company) on August 29 and 30 to deter-
mine whether they desired to be represented for the purposes
of collective bargaining by the Petitioner Union with the fol-
lowing results:2
Approximate number of eligible votes..... 88
Void ballots................................................ 0
Votes cast for the Petitioner...................... 30
Votes cast against the Petitioner............... 55
Valid votes counted................................... 85
Challenged ballots...................................... 2
Valid votes counted plus challenged
ballots..................................................... 87
In his report the Regional Director also found that the
Union had filed timely objections to the election, certain of
which had been withdrawn by the Petitioner Union and con-
cluded that a hearing should be held on Petitioner’s Objec-
tions 1,A, 1,C, the remaining portion of 1,F relating to un-
lawful interrogation, and 2,C as they raised substantial and
material issues of fact and credibility which could best be re-
solved at a hearing and consolidated the hearing on objec-
tions with the hearing in Case 15–CA–11631.
Subsequently on January 31, 1992, the Regional Director
entered an order further consolidating cases, consolidated
complaint, and notice of hearing in Cases 15–CA–11650,
15–CA–11650–2, 15–CA–11650–3, 15–CA–11650–4, and
15–RC–7620. On May 22, 1992, the complaint was amended
by the Regional Director. Ultimately the complaint came to
hearing on July 28, 1992, at which time the General Counsel
moved to amend the complaint based on a charge filed by
the Union on that date. The Respondent objected to the
amendment which I granted with the Respondent accorded
permission to renew the motion at the end of the hearing and
argue it in his brief. The Respondent has fully answered the
allegations and has denied the commission of any unfair
labor practices in the complaint as evidenced by its answers
contained in the formal documents as amended at the hear-
ing.
On the entire record in this proceeding, including my ob-
servations of the witnesses who testified here, and after due
consideration of the briefs filed by the General Counsel,
counsel for the Charging Party and Petitioner Union, and
counsel for the Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
A. The Business of Respondent
The complaint alleges, Respondent admits, and I find that
at all times material Respondent is and has been a Delaware
corporation, with an office and place of business in Panama
City, Florida, where it has been engaged in the manufacture
and nonretail sale of flexible pipe, that during the 12-month
period ending August 31, 1991, Respondent, in the course
and conduct of its business operations, sold and shipped from
its facility products, goods, and materials valued in excess of
$50,000 directly to points outside the State of Florida, and
that Respondent is now, and has been at all times material,
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
B. The Labor Organization
The complaint alleges, Respondent admits, and I find that
at all times material the Union is, and has been, a labor orga-
nization within the meaning of Section 2(5) of the Act.
II. RESPONDENT’S MOTION TO DISMISS THE AMENDED
CHARGE IN CASE 15–CA–11650–4
,At the commencement of the hearing on July 28, 1992,
in this case, the General Counsel stated on the record that
prior to hearing, Respondent’s counsel was served with an
amended charge in Case 15–CA–11650–4 and moved for
leave to amend the complaint to include those allegations.
The charge had been filed by the Union and served on the
Respondent at its plant on July 28, the date of the hearing,
shortly prior to the hearing. The allegations in the charge al-
leging violations of Section 8(a)(1), (3), and (4) of the Act
which the General Counsel sought to add to the complaint
were that the Respondent on or about December 12, 1991,
solicited grievances from its employees; in mid-September
1991, imposed more onerous working conditions on its
prounion employees; and on or about August 22, 1991, con-
ducted an election pool. The amendment also contained an
allegation that Respondent had on or about December 5,
1991, suspended its employee John (Chris) Parker for 5 days
without pay because of his union activities and because of
his prior participation in other unfair labor practice charges.
Respondent’s counsel objected to the amendment at the hear-
ing asserting that the allegations were time-barred by the 6-
month 10(b) period set out in the Act and also asserted sur-
prise because of the late filing of the amendment. In the al-
ternative Respondent’s counsel requested a postponement ‘‘at
some point . . . of the remainder of the hearing’’ to prepare
for the new allegations. I permitted the proposed amend-
ments, informed Respondent’s counsel that its objections
would also serve as an answer denying the new amended al-
legations and that the 10(b) motion would be treated as an
affirmative defense. I also informed the parties that if the Re-
spondent required a continuance after the presentation of the
remainder of its case, I would consider that request at that
time whereupon we proceeded with the hearing to its conclu-
sion with each of the foregoing new allegations fully liti-
gated and without any further request by Respondent’s coun-
sel for a continuance. Respondent subsequently filed a
701WELLSTREAM CORP.
3 In the fall of 1991, Marlow was promoted to plant manager.
posthearing motion to dismiss the amended charge in Case
15–CA–11650–4 asserting that the amended charge incor-
porated in the amended complaint was time-barred under
Section 10(b) of the Act and that it had been unfairly sur-
prised by the amendment. In its motion the Respondent as-
serts that all allegations within the amended charge concern
conduct which occurred outside the 6-month limitations pe-
riod contained in Section 10(b) and that none of the allega-
tions contained in the amended charge relate back to the sub-
ject matter of any previously filed charge which went to
complaint in this matter. Counsel for the General Counsel
and counsel for the Charging Party each filed responses op-
posing the Respondent’s motion to dismiss the amended
charge.
With respect to the allegation concerning the 5-day sus-
pension of John Chris Parker on December 5, 1991, this alle-
gation was contained in a prior timely charge filed December
12, 1991, in Case 15–CA–11650–4, which also listed the lay-
off of several other employees. The layoff allegations of this
charge had been withdrawn. However the allegation of the
5-day suspension of Parker had not been withdrawn. I ac-
cordingly find that this allegation is not barred by Section
10(b). Moreover, this allegation as do the other allegations
in the amended charge incorporated in the complaint involve
allegations of Section 8(a)(1) and (3) of the Act as contained
in the order further consolidating cases, consolidated com-
plaint and notice of hearing issued on January 31, 1992, in-
volving pre- and postelection conduct as part of Respond-
ent’s overall efforts to thwart the union campaign including
the identification and weeding out of the union organizers
among its employees. I thus find the allegations in the
amended charge are closely factually related to the allega-
tions in the complaint of January 31, 1992. Well-Bred Loaf,
303 NLRB 1016 fn. 1 (1991); Nickles Bakery of Indiana,
296 NLRB 927 (1989); I also find that the Respondent’s mo-
tion must fail on its assertion of surprise as I offered the Re-
spondent an opportunity to file a motion for a continuance
of the hearing solely to prepare for the defense of the newly
added allegations, but Respondent failed to request such a
continuance and these allegations were fully litigated. Roslyn
Gardens Tenants Corp., 294 NLRB 506 fn. 6 (1989);
Brookhurst Professional Building, 279 NLRB 1176, 1182 fn.
17 (1986). I accordingly deny Respondent’s motion.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
As set out above the Respondent is engaged in the manu-
facture and distribution of flexible pipe systems utilized in
the offshore oil and gas industry to transport products under-
seas and operates from its facility in Panama City, Florida.
It is a relatively new company, with one chief competitor, a
French company that dominates the business of manufactur-
ing and distributing flexible pipe systems for the oil and gas
industry. In July 1991 at the time of the election campaign,
Respondent’s production workers included nine maintenance
mechanics at its facility. These mechanics were John (Chris)
Parker, Bert Greer, Dan Battistini, Jon (Eric) Clenney, A. J.
Roper, Rickey Cranford, James Snow, Gerald Riley, and
Arsenio Bacani. In addition Herman Riley was employed as
an electronic technician and there were four welders: Russell
Hines, John Hayes, Ray Jordan, and Terry Luckie. Allen
Sapp supervised the maintenance department and reported to
Ray Marlow,3 the engineering manager who reported to Jeff
Jordan, the general superintendent. James Wilson was the
building facilities superintendent. Robert Miller was the
president and chief executive officer of Respondent.
In May John (Chris) Parker initiated an organizing cam-
paign among Respondent’s employees by sending unsigned
letters addressed to Respondent’s employees and postmarked
May 26. In his letter Parker discussed working conditions in-
cluding recent layoffs, management changes, decreases in
benefits, and alleged favoritism and stated that the writer be-
lieved a union could resolve these problems and that he
would be listening for comments on the plant floor to ascer-
tain if there was sufficient support for a union. Subsequently
Parker determined that conditions were favorable for union
representation and he contacted Union Business Agent Greg
Boggs. The Union sent a letter to Respondent dated July 12
informing it that Parker was the chairman of the Union’s or-
ganizing committee. On July 16, Respondent posted a memo-
randum throughout the plant signed by George Scott, the
manager of manufacturing, which stated that Respondent had
received the letter from the Union and that Parker should not
be treated differently, because he was ‘‘pushing for the
Union.’’ Respondent’s memorandum also stated that Parker
would not get any special favors, because he was the
‘‘anointed union pusher.’’ On July 24, the Union wrote the
Respondent informing it that Jon (Eric) Clenney and Daniel
Battistini had become members of the organizing committee
also. Subsequently Parker, Battistini, and Clenney became
active union organizers soliciting union authorization cards,
wearing union buttons and T-shirts, and engaging in
handbilling at the Respondent’s facility. Parker also testified
he talked with employees on behalf of the Union on and off
Respondent’s premises. Parker, Battistini, and Clenney were
all maintenance mechanics and all but one of the mainte-
nance mechanics were in favor of the Union. It was known
by Respondent that the source of the strongest support for
union efforts and sentiment was the maintenance department.
During the preelection campaign, the union supporters at-
tempted to pass out a letter each week with the final letter
being entitled ‘‘Truth’’ handed out at the plant entrance. This
letter spoke of lies concerning pay raises and evaluations.
Subsequently in July, Respondent posted its memorandum
entitled ‘‘Truth’’ on all the department bulletin boards and
in it referred to Parker. Engineering Manager Ray Marlow
handed Parker a copy of this memorandum and told him to
read it.
Respondent for its part mounted a vigorous antiunion cam-
paign. It held four to five meetings with its supervisors and
management officials at a restaurant in town. The first meet-
ing took place within 2 to 3 weeks of the initial letter sent
by Parker with the production supervisors present as well as
Respondent’s upper level management officials and was con-
ducted by Respondent’s attorney, Douglas Sullenberger.
Former Supervisors Jack Bryant and Craig Baker testified
that the supervisors were instructed to keep their eyes open
and that it was generally discussed and concluded by those
present that Parker had sent the anonymous letter. Super-
visors were instructed they could not threaten, interrogate,
promise anything to, or spy on employees. Sullenberger in-
702 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
quired regarding whether there was a uniform policy and was
told the employees had uniforms but were only required to
wear them if visitors were coming to the plant. He advised
it would be a good time to initiate a uniform policy requiring
employees to wear uniforms to curtail the wearing of union
T-shirts. Sullenberger also inquired if the Employer had a
nonsolicitation policy and was told it did. Former Supervisor
Bryant testified that Sullenberger was told that the sale of
cookies and raffle tickets had been permitted whereas Super-
visor Craig Baker testified that at that time this was no
longer permitted. I credit Bryant. Sullenberger advised Re-
spondent to begin enforcing the nonsolicitation policy. He
also told the supervisors to keep their eyes open and, if they
saw employees gathering and talking, to break them up. Fol-
lowing this meeting, Respondent commenced to require uni-
forms be worn regularly and to enforce the nonsolicitation
policy in accordance with Sullenberger’s instructions. In ad-
dition to the meetings held at the restaurant, there were regu-
lar supervisory meetings held each week at which the super-
visors would discuss the employees and whether they were
prounion or antiunion and the reasons therefor. Bryant re-
called that employees Parker, Battistini, Clenney, Greer, John
Huffman, and Roper were discussed as being prounion. Su-
pervisors were told to tell the employees ‘‘horror stories’’
about the Union. The supervisors were told to watch Parker,
Battistini, Greer, and Huffman and keep them away from
other employees. Bryant testified that the supervisors were
told to write up any of these employees for any observed in-
fractions, such as ‘‘safety glasses, safety boots, whatever’’
but to clear the writeups with Jeff Jordan to ensure that ev-
erything was ‘‘legal.’’ Bryant also testified that the super-
visors were told to eat lunch in the breakroom rather than
their office in order to discourage union talk among the em-
ployees. Bryant testified further that on the date of the elec-
tion after the close of the polling place, General Superintend-
ent Jeff Jordan went to the supervisors’ office and told Bry-
ant to remove two employees from the overtime list stating,
‘‘I do not want them union son-of-a-bitches in my shop.
Take them off and find somebody to replace them.’’ Bryant
complied and removed the employees’ names from the over-
time list. Supervisor Craig Baker testified he was called to
Jordan’s office on the date of the election after its comple-
tion and that Jordan had the overtime list and had highlighted
some names on the list and told him to remove John
Huffman a prounion employee’s name from the list and to
make sure he did not work any overtime.
B. Alleged Unlawful Interrogation
1. June 14
Scott Parker, the brother of Chris Parker, testified that
around June 18, then General Superintendent Jeff Jordan ap-
proached him and another employee, Randy Lawdry, with
whom he was standing at the flex lock machine and told
them that unions were bad and had caused him the loss of
a prior job. Jordan went on to ask Scott Parker exactly what
was going on with the Union. Parker told Jordan he did not
know what was going on with the Union as his brother went
his way and he went his. As Jordan was not called to testify,
Scott Parker’s testimony is unrebutted and I credit it. I find
that this interrogation of Scott Parker by Respondent’s agent
Jordan, an upper level management official, violated Section
8(a)(1) of the Act. There was no evidence that Scott Parker
was an active union adherent. Moreover, the question went
beyond Scott Parker’s union activities, if any, and sought any
information whatsoever about the Union and union activities
of other employees that Scott Parker might be aware of. I
find the evidence gives rise to and supports the inference that
Jordan was seeking information from Scott Parker about the
Union, because his brother Chris Parker was suspected to be
the leader of the union campaign. Rossmore House, 269
NLRB 1176 (1984), affd. 760 F.2d 1006 (9th Cir. 1985). See
Airport Distributions, 280 NLRB 1144 (1986).
2. June 28
Chris Parker testified that on June 28, he and fellow em-
ployee A. J. Roper were approached while on the third floor
by Harry Driscoll, manager of security and special projects.
Driscoll spoke to Parker and told him he had worked in the
past under various unions and stated that unions were no
good. Driscoll then asked Parker if he knew ‘‘who might be
behind the talk on the floor about the Union.’’ Neither
Parker nor Roper responded to this inquiry. As Driscoll was
not called as a witness, Parker’s testimony is unrebutted and
I credit it. I thus find that this interrogation of Parker by Re-
spondent’s agent, a member of upper level management, con-
cerning the identity of the employee who had initiated the
union campaign was inherently coercive and violative of
Section 8(a)(1) of the Act.
3. July 9
Chris Parker testified that on July 9 Engineering Manager
Ray Marlow approached him at a machine on which he was
working and asked Parker if he was going to attend the rep-
resentation hearing set for July 11. Marlow went on to tell
Parker to come by his office and he would tell him some
horror stories about the Union. I credit Parker’s unrebutted
testimony in this regard as although Marlow was called to
testify, he was not questioned regarding the contents of this
conversation. I accordingly find that Respondent through its
agent Marlow, a high-level member of management, violated
Section 8(a)(1) of the Act by its unlawful interrogation of
Parker concerning his union activities. Although the Re-
spondent at the hearing attempted to elicit testimony from
Parker to the effect that he and Marlow frequently had
friendly conversations, Parker denied this and testified
Marlow had intimidated him regularly because of his support
of the Union and I credit his testimony in this regard also.
C. The Nonsolicitation Rule
Prior to the advent of the union campaign. Respondent
maintained a nonsolicitation rule in its employee handbook
which was distributed to its employees. The rule provided as
follows:
Solicitation of any type on company premises during
working hours for non-work related matters is strictly
prohibited. This includes, but is not limited to, any lit-
erature of a religious, charitable, political, or commer-
cial nature. Violation of this policy may lead to imme-
diate termination.
The employees’ handbook also defines ‘‘Hours of Work’’
as follows:
703WELLSTREAM CORP.
The normal work week for full time employees is 40
hours per week, based on an eight-hour day, five days
per week, Monday through Friday, inclusive. The hours
for each location, including meal periods, will be estab-
lished locally by the company. The manufacturing will
be handled on a shift basis with the working hours to
be assigned.
Former Supervisor Jack Bryant testified without rebuttal that,
at a management meeting at the Harbor House Restaurant
held to discuss the Union’s organizational campaign shortly
after Parker’s May letter to the employees, Respondent’s at-
torney, Douglas Sullenberger, asked if there was a nonsolici-
tation rule and on being told there was, he asked if it was
being enforced. He received the reply that it was not being
enforced as various solicitations such as for Girl Scout cook-
ies were permitted. He then told those present that it should
be enforced and according to Bryant’s unrebutted testimony,
it was enforced. It should be noted that Bryant also testified
in unrebutted testimony that the supervisors were told to
break up groups of employees to keep them from discussing
the Union, and that supervisors should begin eating their
lunch with employees in order to inhibit union discussion
among the employees.
It is well settled that prohibitions on solicitation during
‘‘working time’’ are presumed valid whereas prohibitions on
‘‘work hours’’ are presumed invalid. The Board has held that
the term ‘‘working time’’ is a clear indicator that the solicita-
tion rule is to apply only during actual working periods ex-
cluding breaks whereas the term ‘‘working hours’’ is suscep-
tible of the interpretation that prohibition against solicitation
applies during all working hours. The Board therefore re-
quires ‘‘the Employer to show by extraneous evidence that,
in the context of a particular case, the working hours rule
was communicated or applied in such a way as to convey
an intent clearly to permit solicitation during break time or
other periods when employees are not actively at work.’’
Our Way, Inc., 238 NLRB 209, 214 (1978), quoting Essex
International, 211 NLRB 749, 750 (1974). There was no evi-
dence presented by Respondent that it communicated to em-
ployees that the nonsolicitation rule did not apply during
break periods. Moreover as set out above, the unrebutted evi-
dence submitted by the General Counsel through the testi-
mony of former Supervisor Jack Bryant conclusively estab-
lishes that Respondent commenced to enforce the rule spe-
cifically in order to stem the union campaign whereas it had
not previously been enforced. Accordingly, I find that the
Respondent violated Section 8(a)(1) of the Act by its dis-
tribution and maintenance and enforcement of this over
broad no-solicitation rule.
D. The Dress Code
The testimony of former Supervisors Jack Bryant and
Craig Baker and employees Battistini, Parker, Grant Steven-
son, and James Roberts established that Respondent did not
have an established dress code policy until after the advent
of the union campaign and that it’s implementation was mo-
tivated by Respondent’s desire to inhibit the wearing of
union T-shirts. Former employee Grant Stevenson, who was
employed as a laborer until his layoff in November 1991,
testified that about the end of May the Respondent issued the
employees two company work shirts each, which were to be
worn everyday from then on by employees.
Former Supervisors Jack Bryant and Craig Baker testified
that at the initial meeting held by Attorney Sullenberger to
discuss the union campaign after the Respondent learned of
Parker’s May letter to the employees concerning their inter-
est in a union, Sullenberger inquired whether there was a
dress policy. On being informed employees were only re-
quired to wear uniforms when customers were coming
through the plant, Sullenberger suggested a dress policy be
implemented in order to inhibit and prohibit the wearing of
union T-shirts and insignia by employees. Bryant and Baker
testified that a dress policy was thereafter implemented.
In late July employees Battistini and Parker were told by
Supervisor James Wilson to button their company shirts and
tuck them in at the time they were wearing union T-shirts.
Parker testified that Wilson told them the policy had been
implemented on Marlow’s orders because of the Union and
also because of safety. I credit the testimony of Parker and
Battistini which was unrebutted as Wilson was not called to
testify. In mid-September a few minutes prior to worktime,
Parker was told in the breakroom by Supervisor Allen Sapp
to button up his work shirt and tuck the tail of his shirt in.
Parker had his work shirt unbuttoned and opened at the time
exposing his union T-shirt. Parker replied he would button
it at 7 a.m. (the start of his shift). Sapp replied that he had
better button it up prior to coming out on the work floor and
said, ‘‘Chris, this is your final warning.’’ Parker’s testimony
concerning the incident with Sapp was corroborated by em-
ployee Robbie Lockamy. On another occasion when
Battistini was working out in the outside heat on the crane
he had his work shirt off and had only his union T-shirt on
and was told by Supervisor Allen Sapp to put his work shirt
on and button it although only one other employee (Terry
Luckie) was nearby. Battistini was told to either button up
his shirt or turn the union T-shirt inside out. Battistini and
Parker both testified that on numerous occasions they and
other employees were permitted to wear their work shirts
open when it was hot and were regularly observed by super-
visors including Marlow, Sapp, and Wilson so long as they
were wearing T-shirts other than the union T-shirt.
Employee Christopher Short testified that after the imple-
mentation of the uniform policy his supervisor, John Miller,
enforced the dress code policy but would permit an employee
to wear the uniform shirt unbuttoned after a hot job until
they cooled off. Employee James Roberts testified that no
one ever bothered him and that he did not wear uniforms and
was never sent home to change.
I credit the testimony of the former supervisors and em-
ployees as set out above. I find that the Respondent imple-
mented the uniform policy and enforced it disparately in
order to inhibit the wearing of union T-shirts and other union
insignia. Although it may be that the Respondent imple-
mented the uniform policy in part because of business-related
reasons to present a neat organized look to its customers, it
is clear and I find that the evidence supports the conclusion
that the policy was implemented primarily in order to inhibit
the union campaign by precluding the wearing of union T-
shirts. Moreover it is abundantly clear, and I conclude from
the evidence that the policy was enforced disparately in order
to inhibit the wearing of union T-shirts. I thus find that Re-
spondent violated Section 8(a)(1) of the Act by its implemen-
704 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tation and enforcement of the uniform policy. Ideal Maca-
roni Co., 301 NLRB 507 (1991). I further find that Respond-
ent’s supervisor, Sapp, threatened Parker with unspecified
discipline if he did not button his shirt up before going on
the plant floor and thereby also violated Section 8(a)(1) of
the Act. Pottsville Bleaching Co., 303 NLRB 186 (1991).
E. The Betting Pool
Former Supervisor Jack Bryant testified that at the second
supervisors’ meeting at the Harbour House Restaurant
Sullenberger suggested that a betting pool on the outcome of
the election should be started so that supervisors might put
down their guesses by how much the Respondent would win
in votes against the Union, in order that unit employees
might see this and be influenced by the supervisors’ pre-
dictions of the outcome against union representation. Bryant
was told by Jordan to start the pool. He did not do so and
about 3 weeks later he was again called into a meeting with
Sullenberger, Davis, and Jordan and asked by Sullenberger
whether he had started the betting pool. When he replied in
the negative, Sullenberger told him he needed to do it. Jor-
dan then took Bryant with him and told him to make two
columns on a sheet of paper for the Company and the Union
and take it around to the employees which he did. He ob-
tained two supervisors’ and two employees’ names on the
list. Shortly thereafter he approached Parker who told him
this was wrong. Ten minutes later Jordan paged him back to
the meeting with Sullenberger who told him he should not
have obtained the supervisors’ names and that a unit em-
ployee should handle the betting pool. Jordan then selected
Frank Fraioli to handle the pool, and Bryant turned the list
over to him. Fraioli was a nonsupervisory technician who
used a desk in the supervisors’ office. Fraioli destroyed the
old list and made a new one. During the course of the cam-
paign, Fraioli kept the betting list with various employees’
names thereon with their guesses and $2 bets as to the num-
ber of votes for the Company and the Union. According to
Fraioli, he kept the list in the desk used by him in the super-
visors’ office and took it out when someone wanted to place
a bet. Fraioli was permitted to do this during worktime. Bry-
ant testified he observed it laying on the desk in plain view
on a number of occasions. It is undisputed that in addition
to the supervisors who used the office, members of upper
level management came into the office. Sullenberger and Jor-
dan were not called as witnesses in the case, and Davis was
not questioned concerning it. I credit Bryant’s testimony and
that of Fraioli as set out above with the exception of Fraioli’s
testimony that he kept the pool in the desk. Rather I credit
Bryant that the pool was often on the top of the desk readily
observable by supervisors who could and did look at it.
I find that the initiation and carrying out of the pool by
Respondent initially by Bryant and subsequently by Fraioli
on Jordan’s orders was violative of Section 8(a)(1) of the Act
as it constituted unlawful interrogation and coercion of em-
ployees concerning their union sentiments. When employees
were solicited to bet in the pool, they were placed in a vul-
nerable position of either refusing to participate in which
case management could surmise they did not want to make
their predictions and their leanings known concerning the
outcome of the election, or their prediction was readily avail-
able to members of management who were free to and did
look at the pool and the predictions of the employees who
participated there. The above was clearly violative of the
Section 7 rights of the employees to make an uncoerced
choice concerning union representation. As the Board stated
in Glamorise Foundation, 197 NLRB 729 at 729 (1972),
these type of pools are ‘‘susceptible to abuse in that they in-
vite comments and speculation at the workplace, close to the
ears of interested supervisory personnel, as to how groups
and individuals are likely to cast their ballots.’’
F. Statements Regarding Shift Rotation
In the summer of 1991, Respondent operated three shifts
with the first shift from 7 a.m. to 3 p.m., the second shift
from 3 to 11 p.m. and the third shift from 11 p.m. to 7 a.m.
Maintenance employees were rotated from one shift to the
next on an approximate 6-week basis and received an incre-
ment in pay for the second and third shifts. Chris Parker tes-
tified that in July on the same day Respondent posted its no-
tice entitled ‘‘Truth’’ which specifically referred to him by
name, Supervisor James Wilson informed him he would be
retained on the first shift rather than rotated to the second
shift. He inquired as to the reason and Wilson told him it
was because of the Union. When he inquired who had or-
dered this, Wilson told him ‘‘the second floor’’ in reference
to upper management. Parker further testified that Wilson
told him he was being retained on the first shift in order that
Respondent could keep a better watch on him. Clenney testi-
fied that although he had previously rotated shifts, Wilson
told him he would remain on the third shift because of his
engagement in union activities and that the decision had been
made by upstairs management. I credit Parker’s and
Clenney’s testimony as set out above which testimony was
unrebutted as Wilson was not called to testify.
I find the above statements by Wilson to Parker and
Clenney that they would no longer be rotated from shift to
shift because of their union activities and to Parker that the
Respondent wanted to keep a better watch on him were coer-
cive in violation of their Section 7 rights to engage in union
activities and that Respondent thereby violated Section
8(a)(1) of the Act. L & J Equipment Co., 272 NLRB 652
(1984).
G. Failure to Rotate Prounion Employees
As noted above Parker and Clenney were both told by Su-
pervisor Wilson that they would no longer be rotated because
of their union activities and they testified they were not ro-
tated from shift to shift as they had been previously rotated
approximately every 6 weeks. Prior to the union election,
Parker and Battistini were kept on the day shift. Similarly
prounion employee Clenney, the other named union orga-
nizer, was moved to the second shift where he remained
without further rotation. Supervisors Bryant and Baker also
testified that Respondent wanted to watch the prounion em-
ployees. Supervisor Sapp testified that Battistini and Parker
were kept on days, because this was the shift which had the
most work to do and also contended that they worked well
together.
I credit the testimony of Parker, Battistini, Clenney, Bry-
ant, and Baker and find that Respondent violated Section
8(a)(1) and (3) of the Act by its failure to rotate Parker,
Battistini, and Clenney because of their engagement in union
activities.
705WELLSTREAM CORP.
H. The Restriction of Employee Access
Prior to the advent of the union campaign, maintenance
employees were permitted to travel freely about the plant as
required according to the undisputed testimony of mainte-
nance mechanics Greer, Clenney, Battistini, and Chris
Parker. However, in late July or early August, Respondent
instituted a new policy prohibiting prounion and maintenance
personnel from going to the second floor where management
offices and computers were located without an escort or from
going to the third floor where heating and cooling equipment
was located without signing a logbook. Greer testified that
Supervisor James Wilson told him and Parker of the new
policy and that it had something to do with the union mess
and things would probably revert to normal when the union
campaign was over. Greer then left. Parker testified he asked
Wilson whether the new policy applied to procompany em-
ployees and Wilson told him it was strictly because of the
Union and that the policy had come from Ray Marlow.
Clenney testified to another occasion during the union cam-
paign when Supervisors Sapp and Wilson told him mainte-
nance employees needed an escort to go to the second or
third floor. Battistini testified that on July 30 Supervisor Wil-
son called him into his office and told him that no mainte-
nance or prounion employees were permitted to go to the
second floor without a guard or to the third floor without
signing a logbook. The record discloses that the majority of
maintenance employees were union supporters. Battistini tes-
tified that all but one maintenance employee supported the
Union. I credit the above testimony of Greer, Parker,
Clenney, and Battistini which was unrebutted as Wilson was
not called to testify and Sapp did not rebut it in his testi-
mony.
In response to this evidence, Respondent elicited testimony
from Marlow who acknowledged that the no-access policy
was instituted but contended it did not pertain only to the
prounion employees. Marlow testified that the new policy
was instituted to protect the Company from leaks as informa-
tion was already known by Respondent’s chief competitor, at
the time announcements were made by Respondent. Marlow
also testified that information leaks could jeopardize some
large contracts, presumably if the bids on them by Respond-
ent became known to its competition. Marlow acknowledged
that no maintenance employees were involved in leaking in-
formation. Supervisor Sapp went so far as to testify that
‘‘lots of documents [were] being stolen out of the plant.’’
Thus Marlow’s and Sapp’s testimony concerning the reason
for the institution of the new policy differs considerably.
Moreover as contended by the General Counsel and the
Charging Party, the Respondent presented no specifics or
evidence concerning what if any leaks occurred or documents
were stolen or evidence of the filing of any police reports
or of any other efforts to remedy the situation.
I do not credit the testimony of Marlow and Sapp as set
out above concerning the reasons for the institution of the
new policy regarding access to the second and third floors.
Rather I find that it was instituted in response to the union
campaign and applied to union adherents and maintenance
employees who were with one exception union supporters. I
thus find that the promulgation of the new policy was coer-
cive of the employees’ Section 7 rights in retaliation for their
union activities in violation of Section 8(a)(1) of the Act.
I. Onerous Working Conditions
The General Counsel and the Charging Party presented
substantial evidence that Respondent set out to and did as-
sign prounion employees unusual and more onerous jobs in
order to isolate and to punish them because of their support
for the Union. Former Supervisor Jack Bryant testified that
at the initial meeting of Attorney Sullenberger and upper
management with the supervisors in early June at the Har-
bour House Restaurant, Sullenberger suggested that the
prounion employees should be kept busy and out of the way
in an obvious attempt to impede their effectiveness in cam-
paigning on behalf of the Union. George Scott and Marlow
then discussed jobs that would keep the union supporters
away from the plant floor where the majority of the unit em-
ployees performed their duties. At this meeting the decision
was made to assign Parker and Battistini (two of the three
members of the in house organizing committee on behalf of
the Union) to perform work on the Gantry crane which had
been in disrepair and idle since 1989. Bryant testified further
that at this meeting General Superintendent Jeff Jordan and
Supervisor Bob Hoeffling told the supervisors to assign
union supporters the dirty jobs which included stripping bob-
bins, crawling under the flex lock machine and cleaning up
oil underneath it, mowing the grass, and the like. Former Su-
pervisors Bryant and Baker testified they complied with
these orders and assigned prounion employees to dirty and
onerous and unusual jobs. Bryant specifically testified that he
assigned Warren Hayes, Davis Booth, Glen Davis, and John
Huffman dirty and hard jobs because of their support of the
Union. When Bryant assigned Hayes to strip bobbins, Hayes
quit. The day after this, Human Resources Manager Davis,
in reference to Hayes’ having quit, told Bryant that if they
had more employees ‘‘stripping’’ (bobbins) it would solve all
their problems in an obvious reference to getting rid of union
supporters. Supervisor Baker testified he was told by Super-
visor Bob Hoeffling to have employee David Booth mow the
grass. Baker and Booth were both on the third shift which
runs from 11 p.m. to 7 a.m. In compliance with Hoeffling’s
orders, Baker sent Booth out to mow the grass at midnight.
,As a consequence of the efforts of Respondent’s manage-
ment to isolate and punish union supporters, certain of them
were assigned more outside work than they had ever been as-
signed before, which was significant in view of the hot Flor-
ida sun and temperatures reaching 90 to 95 degrees in the
summer and fall of 1991. Although Battistini and Parker had
been previously assigned outside work only occasionally,
they began to be regularly assigned to outside jobs that were
unusual in nature and that could have been performed in total
or in part by other employees as well. As a consequence of
working outside, Parker testified his arms became extremely
sun burned with painful pealing of his skin. Parker testified
he was assigned to perform work on the plant’s substation
outside of the building in direct heat and was required to
hand sand and cool fill the roof of the substation. No other
employee was assigned to work on the substation. Parker and
Battistini further testified that in September, they were as-
signed by Supervisor Wilson to work outside on the high bay
exhaust fans which required them to work on the roof 90 feet
above the plant for 2 to 3 days. Some of the other mechanics
were assigned briefly for a half day to work with them.
Parker testified that all of this work or any part thereof could
have been performed by other employees. Parker and
706 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Battistini further testified they were assigned by Supervisor
Wilson in September to work on the Gantry crane which re-
quired them to work outside all day in 90 to 95 degree heat
for 5 or 6 days. Parker testified that the crane had been idle
since 1989. Parker testified he was assigned to work on the
crane by Sapp. Battistini testified he was assigned to work
on the crane by Wilson. He further testified that all the work
could have been assigned to other employees. Although other
employees were assigned to work on the crane, they were
only required to do so for brief periods of time. Employees
Terry Luckie and Russell Heinz worked for a brief period of
time doing fabrication and welding work for the crane. In ad-
dition to the above, Battistini testified he was assigned to
outside work of cleaning out the rain gutters in the parking
lot. He had never been assigned this task before which un-
doubtedly could have been performed by a lower-paid gen-
eral laborer employee. There was no evidence that Respond-
ent was short of higher-skilled maintenance mechanic work
to be performed. Former employee Bert Greer testified that
management looked for work outside to assign to employees.
I credit the above testimony by Bryant, Baker, Parker,
Battistini, and Greer which is unrebutted as Wilson, Jordan,
Hoeffling, Scott, and Sullenberger were not called to testify
and Marlow and Davis were not questioned concerning these
matters. Respondent presented Supervisor Allen Sapp to tes-
tify concerning some of these matters. Sapp testified that
only two of its seven to eight exhaust fans were running and
that those fans were necessary to take exhaust fumes out of
the plant as a result of heavy production going on at the
time. He acknowledged that some of these fans had been
broken for at least a year and that Battistini and Parker were
not the only employees qualified to work on them.
I find that the Respondent violated Section 8(a)(1) and (3)
of the Act by the assignment of more onerous duties to
prounion employees as set out above in order to isolate them
in order to impede their engagement in activities in support
of the Union and in retaliation for their engagement in union
activities. The above evidence overwhelming demonstrates
that Respondent set out to and did assign union supporters
more onerous duties in violation of Section 8(a)(1) and (3)
of the Act. Lakepark Industries, 293 NLRB 452 (1989);
Budget Rent A Car of Washington, 276 NLRB 315 (1988),
enfd. 124 LRRM 2951 (1986).
J. The August 2 Meeting
Chris Parker testified that on August 2, President Robert
Miller met with all the day-shift employees and discussed
various negative aspects of unions and specifically mentioned
the Eastern Airlines union dispute and outcome. Parker testi-
fied that at one point during the meeting Miller said that ‘‘no
son of a bitch would bring a union to Wellstream’’ and ‘‘as
long as he was at Wellstream, he would personally see to it
that Wellstream was never unionized.’’ Parker further testi-
fied that Miller stated he would be getting rid of all the neg-
ative people who only wanted something for nothing.
Battistini corroborated Parker’s testimony in this regard. He
recalled that Miller stated that ‘‘Union members had a some-
thing for nothing attitude,’’ and that ‘‘he’d personally see to
it that no goddamn union would get in that company,’’ and
‘‘no son of a bitch would bring the Union.’’ Battistini also
recalled that Miller stated he would weed out the people with
the something-for-nothing attitude. Respondent called em-
ployee Christopher Short who testified regarding a meeting
which he attended at which Miller spoke. The testimony of
Short was not definitive as to whether this was the same
meeting, although Short did testify he sat next to Parker at
the meeting. Short acknowledged that Miller had talked
about the Union at the meeting but did not recall Miller hav-
ing stated that no ‘‘goddamn union would ever get into
Wellstream.’’ Short acknowledged that Miller had made
other comments but testified he could not remember ‘‘too
many specific comments.’’ Miller was not called to testify
and Battistini’s and Parker’s testimony is thus largely
unrebutted except with the lack of recall by the testimony of
Short. As the General Counsel contends in his brief, Short’s
testimony was vague and uncertain. I credit Parker’s and
Battistini’s testimony as set out above which I find to be mu-
tually corroborative and specific and detailed.
I accordingly find that Miller’s statements to the employ-
ees that no ‘‘son of a bitch’’ would bring a union into
Wellstream, and that he would see to it that Wellstream was
never unionized were clearly intended to and had the effect
of conveying to the employees the futility of their support of
the Union in violation of Section 8(a)(1) of the Act, Ideal
Elevator Corp., 295 NLRB 347 (1989). Miller’s statement
that he would be getting rid of the something-for-nothing
people was a clear reference to the union supporters and a
clear threat of discharge of those employees who supported
the Union and was also violative of Section 8(a)(1) of the
Act. Bridgeway Oldsmobile, 281 NLRB 1246 (1986), modi-
fied on other grounds 290 NLRB 824 (1988); Farr Co., 304
NLRB 203 (1991).
K. The Threat of a Lawsuit
Parker testified that in the first week of August, General
Superintendent Jeff Jordan approached and said that things
had become personal and that his attorneys were looking into
possible slander charges against Parker. Parker asked, ‘‘why
me?’’ and stated he could not recall anything that Jordan had
read that he was referring to. Jordan then called Parker a liar
and stated, ‘‘all fucking union people are liars.’’ I credit
Parker’s testimony which is unrebutted as Jordan was not
called to testify.
I accordingly find that the threat by Jordan to file a law-
suit against Parker was coercive in violation of the Section
7 rights of Parker because of his support of the Union and
that Respondent thereby violated Section 8(a)(1) of the Act.
Clyde Taylor Taylor Co., 127 NLRB 103 (1960); Pabst
Brewing Co., 254 NLRB 494 (1981).
L. Threat of Loss of a Wage Increase
Employee Grant Stevenson testified that at the time of his
hire he was told by General Superintendent Jeff Jordan that
he would be evaluated at the end of a 90-day probation pe-
riod and would receive a raise if he received an evaluation
meriting one. After his probationary period, he received a fa-
vorable evaluation and was told he would receive the raise.
He spoke to Jordan on one or two occasions and was told
the raise would be forthcoming. On September 20 he over-
heard Supervisor Jack Seale telling employees Steve Roth
and Curtis Spencer that there would be no raises because the
Labor Board would not permit the Respondent to give raises
during a union dispute. Stevenson took issue with this and
707WELLSTREAM CORP.
told Seale this was a lie as he had phoned the Labor Board
and been told they would not do this. Seale was called by
Respondent to testify and denied making this statement but
rather testified that Stevenson said he had contacted the
Labor Board and that he told Stevenson he did not know
anything about it but wondered if pending unfair labor prac-
tice charges had any impact on his personally not having re-
ceived a raise.
I find that Respondent violated Section 8(a)(1) of the Act
by the statement made by its supervisor, Seale, that there
would be no raises as the Labor Board would not permit the
Respondent to give raises during a union dispute. Initially I
credit Stevenson’s version of this conversation. I found
Stevenson’s testimony to be clear, explicit, and credible. I do
not credit Seale’s version of this conversation, I also found
Seale’s testimony to be evasive when he was initially asked
whether he had written a letter in opposition to the Union
and only admitted to doing so when confronted with the let-
ter. When an employer attributes to the Union its failure to
grant a pay raise, it violates Section 8(a)(1) of the Act. Cen-
tre Engineering, 253 NLRB 419, 421 (1980). In the instant
case, the Respondent through its supervisor, Seale, was indi-
cating to the employees that the Board would not allow
raises during union disputes. This had the obvious effect of
coercing employees to refrain from supporting the Union as
this places their raises in jeopardy. Such a statement inter-
feres with their Section 7 rights to support a union uninhib-
ited from interference.
M. The Election Day Breakroom Incident
Battistini and Parker testified that on August 30, the day
of the election at about 9 a.m. after the election was over,
they entered the breakroom and heard Fitting Supervisor Jack
Seale talking to about 15 first-shift employees. Battistini tes-
tified that Seale stated that ‘‘Now the election’s over, the
company can get back to making good pipe and competing
in the marketplace and they could get rid of the bad element
in the company.’’ Battistini testified he then walked out of
the breakroom. Parker testified that Seale said, ‘‘Now with
all of this behind us, we will weed out a few folks and we
will continue to make good pipe.’’ The Respondent called
Seale to testify who denied having made the comments at-
tributed to him by Battistini and Parker.
I credit the clear and mutually corroborative testimony of
Battistini and Parker concerning these comments made by
Seale which were clearly threats of discharge of the employ-
ees who supported the Union and find that Respondent there-
by violated Section 8(a)(1) of the Act. See Bridgeway Olds-
mobile, supra; Farr Co., supra.
N. The Written Warnings and Discharge of
Daniel Battistini
Daniel Battistini was an active supporter of the Union and
one of three members of the in plant organizing committee
designated as such by the Union in a letter to Respondent.
He solicited union cards, wore union T-shirts and buttons,
and distributed handbills on behalf of the Union. Battistini
was employed as an electrical mechanic at the time of the
issuance of written warnings to him and of his termination.
As set out above in this decision, Battistini was a known ac-
tive union supporter who had been identified as such by
management and had been discriminated against by a denial
of his normal shift rotation with the consequent loss of the
increment in pay attendant with certain shifts and had been
assigned more onerous job duties as punishment for his sup-
port of the Union and in order to keep him isolated from
other employees as part of Respondent’s plan to keep union
supporters from talking to other employees in order to stem
the union campaign. The record also shows that union sup-
porters such as Battistini and Chris Parker were targeted as
union supporters and that Respondent’s president and chief
executive officer, Robert Miller, threatened employees with
the futility of their selection of the Union as their collective-
bargaining representative, and threatened to get rid of the
union supporters (those who wanted something for nothing).
In addition Respondent engaged in numerous other violations
of the Act. Against this background of union animus,
Battistini, who had no prior record of discipline, received
two writeups and a suspension and was terminated on No-
vember 6, 1991.
On October 17, Battistini was observed by then Manager
of Engineering Ray Marlow using channel locks (arc pliers)
to loosen a hydraulic fitting on a jack used to level a plat-
form. Battistini testified that Marlow followed him around a
great deal of that day although Marlow did not directly su-
pervise Battistini. Marlow testified that shortly after he came
to Respondent in February, he informed all employees they
were not to use channel locks on these type of fittings but
rather were to use a strap wrench which is fashioned from
a fabric like material so as not to damage the fittings which
are made of a soft material. There were no written notices
or postings provided by Respondent, and Battistini testified
without rebuttal that he had never been told not to use chan-
nel locks on these fittings. Moreover, Battistini testified that
the fitting involved in this incident was made of a hard rather
than a soft material. Other employees including former Su-
pervisor Jack Bryant and former employee Bert Greer testi-
fied that employees regularly and openly used channel locks
to loosen fittings. Safety Coordinator Donald Crysell testified
that the use of channel locks could strip these fittings but
was not aware of the fitting in question in this instance nor
had he observed any of the circumstances under which
Battistini loosened the fitting. It is undisputed that no em-
ployee had ever been disciplined previously for having used
channel locks to loosen these fittings. According to Marlow
when he observed Battistini loosen the fitting he told him to
report to his supervisor what he had done. Battistini testified
that Marlow did not tell him to report to his supervisor. Later
that day Marlow stood watching Battistini as he was filling
an electric generator with fuel and observed Battistini block
the fuel nozzle with a pipe to prevent it from automatically
closing. Marlow testified that Battistini then left the imme-
diate area. Battistini, who testified that he had never pre-
viously been closely scrutinized by Marlow who did not di-
rectly supervise him, testified he did not leave the area but
rather stood back and observed the fuel nozzle as the fueling
process continued because the fueling process takes up to a
half hour if the fuel tank is empty and would have required
him to kneel in order to hold the fuel nozzle open during the
entire fueling process. He testified as did other employees
that it was common to block open the nozzle because of the
length of time and discomfort involved in holding the nozzle
during the entire fueling process. Battistini testified that
708 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Marlow stood watching him as the nozzle was blocked dur-
ing the refueling process for some time until it was finished
and then approached him and told him to go to see his super-
visor, Allen Sapp, and that he would be along presently.
Marlow denied that he had stood for any length of time ob-
serving the fueling process but testified that he immediately
called Battistini’s attention to the infraction and that he
would be along presently to talk to Battistini’s supervisor
concerning it, and that he passed the information on to
Battistini’s supervisor, Allen Sapp, to take appropriate action.
Sapp testified this resulted in the two writeups of Battistini.
Marlow and Safety Supervisor Crysell testified to the dan-
gers to the environment and to safety that could occur if the
fuel were permitted to leak onto the ground. Crysell, how-
ever, was not a witness to the occurrence or a participant in
the disciplinary process. Battistini testified that the fuel hose
had previously not had a nozzle with an automatic shutoff
device but had been allowed to drain after usage and that he
had, on his own initiative, installed such a nozzle.
With respect to the incident leading to the indefinite sus-
pension and the discharge of Battistini, Battistini testified he
had only recently after the election been rotated from the day
shift where he had been relegated during the duration of the
election campaign and was working the third shift. This shift
runs from 11 p.m. to 7 a.m. Respondent has what is referred
to as a maintenance cage where its maintenance mechanics
congregate at the start of their shift and receive assignments
listed by the supervisors. On October 30 one of the assign-
ments listed for the mechanics to perform was a nonpriority
item listed sixth in sequence to be performed. This assign-
ment was to check out the A-frame of the extruder payoff
line. This is a large machine operating a reel which rotates
to take up or put down the piping material Respondent man-
ufactures. This A-frame, according to the unrebutted testi-
mony of employees Battistini, Parker, Clenney, and Greer,
had for some time prior thereto not been operating in its
automatic mode but had only been operated manually which
requires two operators to manually control the speed and the
machine. It was being used manually on the third shift to
which Battistini was assigned on October 30. Battistini was
thus unable to work on the machine until an hour or so prior
to the end of his shift. Prior to working on the machine
Battistini had installed his lockout on the power source in
order to ensure the power was not on while he worked on
the machine. He changed the fuses and removed the lockout
and ran the machine, but it began to pick up speed and run
‘‘wide open.’’ The term running ‘‘wide open’’ means that
the machine is running faster than the speed at which the
machine is set. Because of its size (the wheel is 100 feet in
diameter) it takes a period of time before it is actually run-
ning at a fast pace even when running wide open according
to the unrebutted testimony of Battistini and Gerald Riley.
Battistini testified that he then concluded that the problem
was electronic which means it was in the inner workings of
the module instead of electrical involving only the wires and
fuses and that he was not qualified to fix it. He then re-
moved his lockout which would permit the machine to run
in the manual mode as it had been previously doing. He re-
turned to the maintenance cage and was unable to find his
supervisor, Sapp, and went home. He did not make any nota-
tions on the assignment sheet or write a note of any kind to
Sapp. He explained that it was routine not to make any nota-
tions on the log until the job was completed. This testimony
was corroborated by Gerald Riley. When Sapp assigned work
at the start of the shift shortly after 7 a.m., he told Gerald
and Frank Riley to check out the A-frame on the payoff of
the extruder line. According to Sapp at about 9 a.m. he was
told by Herman Riley that this machine was running wide
open and that Riley was upset by this. At the hearing Gerald
Riley testified he and his brother had been assigned by Sapp
to check the A-frame at 7 a.m. at the start of the shift and
encountered two crossed wires on the A-frame which they
fixed and that when it was run in the automatic mode, it ran
wide open requiring either he or his brother to apply the stop
button. There is some confusion in the testimony of Gerald
Riley as to whether the normal stop or emergency stop but-
ton was applied. However, the machine was stopped without
damage or injury. Also at the hearing, Riley did not express
the concern that Sapp attributed to his brother and testified
that there was no danger as when the machine was running
‘‘wide open’’ it was running very slowly because of the
length of time it takes to gather speed as a consequence of
its large diameter and that he or his brother were able to
readily stop the machine. Gerald Riley did testify that one
of his concerns in reporting to Sapp was that he and his
brother not be blamed for a condition of disrepair that had
been in existence prior to the time they were assigned to
check the machine as he (Gerald Riley) had been previously
suspended for an alleged safety infraction which suspension
he did not believe was justified.
Battistini was called at home that afternoon and asked to
report to personnel that evening but due to a prior appoint-
ment was unable to do so and he was told not to report on
his normal shift but to report to the personnel office on the
following day at 9 a.m. which he did. At the meeting, the
wiring and the procedure he had used were discussed and
Battistini was asked why he had not locked out the machine.
Battistini told them he had not locked out the machine, be-
cause it was running in that state (manual mode only) before
he worked on it and it was considered an operational ma-
chine. He was issued a writeup of a violation notice by his
supervisor, Allen Sapp. A meeting with Human Resources
Manager Davis and his assistant, Kip Allsteater, was the fol-
lowing day after he received the writeup from Sapp. At that
meeting Sapp said it was just a hunch that he had Riley
check out the machine the morning after Battistini had
worked on it and that Riley had to hit the emergency button
to stop it. Battistini denied that he told Davis at this meeting
that he went home without notifying Sapp of the condition
of the A-frame because he was tired. Battistini further testi-
fied that after the completion of the shift when he worked
on the A-frame, there was another shift of maintenance em-
ployees coming on and this job was still on the ‘‘pass down
log’’ to be worked on. At this meeting Battistini was sus-
pended pending a meeting that Davis told him he was going
to have with Marlow, George Scott, Allsteatter, Sapp, and
himself to come to a conclusion of this matter after their in-
vestigation.
Battistini was called back November 6 and terminated at
a meeting attended by Davis. He carried a recording device
and secretly taped the meeting which tape was received in
evidence. Present at this meeting were Davis, Sapp, and
Allsteatter. Davis told him he was being terminated because
of the seriousness of the lockout violation and his failure to
709WELLSTREAM CORP.
write down the problem on the report and because of two
safety violations within a short period of time.
Analysis
I find that the General Counsel has established a prima
facie case of a violation of Section 8(a)(3) and (1) of the Act
in each instance, that is in the instance of the two writeups
and the suspension and discharge. Initially I find that the
antiunion animus of the Respondent toward the Union and its
supporters and specifically toward Battistini who was one of
the three members of the Union’s in house organizing com-
mittee has been overwhelmingly established, as demonstrated
by the unlawful threats issued by Respondent’s management
toward union supporters and the discrimination practiced
against certain of the supporters including Battistini and
Chris Parker who were punished for their union activities by
the denial of their normal shift rotation and by the assign-
ment of more onerous duties to them. Moreover, I am con-
vinced that in each instance of discipline issued against
Battistini, the Respondent and its management seized on any
pretext available to discipline Battistini and ultimately rid
itself of one of the chief union proponents. I found Battistini
to be a credible witness who testified in a low-key straight
forward manner and who did not attempt to embellish his
testimony in order to gain any advantage in this proceeding.
I also found the other witnesses presented by the General
Counsel who testified concerning the practice of using chan-
nel locks to loosen fittings, pipes to block out the fuel hose
nozzle, and the practices concerning lock out procedures and
the condition of the A-frame to be credible. I was particu-
larly impressed by the testimony of former Supervisor Jack
Bryant who testified with excellent recall concerning the Re-
spondent’s efforts to stem the union campaign and its assign-
ment of onerous job duties to union supporters. I was not
convinced by the denials of Marlow concerning the discrimi-
natory treatment of Battistini and his having only coinciden-
tally observed Battistini twice on the same day in alleged in-
fractions of Respondent’s rules. Moreover, I note that there
was no published rule concerning the use of strap wrenches
on the fittings in question nor was there any evidence that
Battistini was apprised of any rules prohibiting the blocking
out of the fuel nozzle. Although Crysell’s testimony concern-
ing the safety aspects supporting the use of a strap wrench,
the reasons for not blocking out the fuel hose nozzle, and the
lockout procedure were informative, they did not show that
Battistini had been apprised of either the need to use a strap
wrench as contended by Marlow or the prohibition of block-
ing out the fuel hose nozzle. Moreover, the information con-
cerning the lockout procedure was not dispositive of the cir-
cumstances in this case assuming that Battistini was apprised
of the procedure in the safety meeting held by Crysell. Thus,
I credit Battistini’s testimony and find that he had not been
advised of any prohibition of using channel locks to loosen
fittings or of any prohibition of blocking out the fuel hose
nozzle. I also conclude that the employees corroborating his
testimony should be credited. I also conclude that it was of
questionable necessity for the A-frame to have been locked
out by Battistini after he worked on it in view of its use in
the manual mode shortly prior thereto on the same shift and
for some substantial periods before while its automatic mode
was not operational. Thus I find that the Respondent seized
on a pretext to discipline and discharge Battistini. I simply
do not find that in any of these instances, it would have dis-
ciplined and discharged Battistini in the absence of his pro-
tected concerted activities on behalf of the Union. Moreover
as the ultimate discharge of Battistini was based in part on
the prior unlawful writeups and suspension of Battistini, it
was violative of the Act in this regard also. Jordan Graphics,
295 NLRB 1085 (1989).
I thus conclude that the Respondent has failed to rebut the
prima facie cases of violation of Section 8(a)(3) and (1) of
the Act by the Respondent’s issuance of the two writeups
and the suspension and by its discharge of Battistini, Wright
Line, 251 NLRB 1083 (1980), enfd. on other grounds 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982);
NLRB v. Transportation Management Corp., 462 U.S. 393
(1983); Roure Bertrand Dupont, Inc., 271 NLRB 443 (1984).
O. The Written Warnings and Suspensions of John
(Chris) Parker
Chris Parker was initially employed by Respondent on De-
cember 4, 1989. He was a maintenance mechanic. On May
26, he wrote an anonymous letter to the employees of Re-
spondent seeking to find out if there was an interest in estab-
lishing a union. According to the unrebutted testimony of
former Supervisor Jack Bryant, the letter was discussed in
supervisory meetings in May and June after the interest of
employees in the Union became known, and it was stated
that Parker was probably the author of the letter. Parker soon
became the leading adherent of the union campaign having
contacted union officials and he was designated as the chair-
man of the in house organizing committee in a letter sent by
the Union to Respondent and he began to wear a union T-
shirt and buttons, and solicit union authorization cards and
handbill on behalf of the Union in front of the Respondent’s
facility. He was the subject of interrogation and disparaging
remarks by management, particularly by then Engineering
Manager Ray Marlow. He, along with Battistini and Clenney,
was denied his normal shift rotation and relegated to the day
shift during the union campaign in order that he might be
watched with the consequent denial of the pay increment at-
tendant with shift rotation. He along with Battistini was as-
signed to onerous work assignments as punishment for his
support of the Union and to keep him isolated from other
employees to inhibit his support of the Union.
On October 16, Parker was issued a written reprimand and
suspended for his alleged insubordination for refusing to put
on his safety glasses while walking in a safety aisle in the
plant. The uncontroverted testimony of Parker and several
employees and of former Supervisors Jack Bryant and Craig
Baker was that employees were not required to wear safety
glasses while in the safety aisle, a nonwork area in the plant,
that visitors often did not wear them in the plant, and that
there was no written rule requiring they be worn in the safety
aisles. Former Supervisor Jack Bryant testified that on the
day of the incident he and then Supervisor John Miller were
standing in the doorway of the supervisors’ office and Miller
said, ‘‘Chris [Parker] is not wearing his safety glasses.’’ At
the time Parker was in the safety aisle headed toward the
breakroom. Bryant told Miller that Parker was in the safety
aisle and urged Miller to let him alone, Miller responded,
‘‘No, I’m going to get him’’ and ‘‘went after Parker.’’
Parker testified that Miller walked past him and pointed to
his head and said it applies here too Chris. Parker testified
710 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
he was not sure what Miller was talking about and had his
safety glasses on top of his head and was in the process of
opening the door to the restroom and continued on. Miller
subsequently contacted Parker’s supervisor, Allen Sapp, who
gave Parker a writeup for not putting his safety glasses on.
Sapp said, ‘‘This is how it’s come down and there’s nothing
you can do about it.’’ It is undisputed that there was no writ-
ten rule requiring employees to wear their safety glasses in
the safety aisles and that they were not worn there. It is also
undisputed that no employee had ever been disciplined for
failure to wear his safety glasses. On the same day Parker
received the writeup for failure to wear his safety glasses, a
notice requiring the wearing of uniforms and safety equip-
ment including safety glasses dated October 9 which was 7
days prior to this incident on October 16 appeared on the
bulletin board. No evidence was presented regarding who
promulgated or posted this notice. The following morning
Sapp met Parker by the timeclock as he came in and said
he had been instructed to take him to Human Resources
Manager Davis’ office. When they arrived Davis was not
there. Shortly thereafter Davis and his assistant, Kip
Allsteater, came in and asked Sapp to wait outside. Davis
asked Parker his version of the safety glasses’ incident which
Parker gave him. Davis asked why he had not complied with
Miller’s instructions and Parker told him because of Miller’s
‘‘asshole attitude.’’ Parker attempted to explain how Miller
had treated him with hostility during the campaign, but Davis
told him this was not relevant. Davis continued to question
Parker and asked him why he had left work early on the day
of the writeup. Parker told him because he had a doctor’s ap-
pointment. Davis asked Parker why he had not notified Sapp
earlier and Parker told Davis that Sapp had no problem with
it and that Davis could call the medical facility to verify the
appointment. Davis then said, ‘‘Three day suspension for in-
subordination.’’ He asked Davis twice why he was being
suspended, and Davis initially said for insubordination and
then said, ‘‘That is all I have to tell you. You figure it out.’’
Davis also told Parker that while he was on suspension, they
would be looking into other possible violations against him.
Parker testified further that he had never been previously
warned about wearing safety glasses in the safety aisle and
he had been seen by many supervisors without them in the
past.
Subsequent to the safety glasses’ incident, Parker was fi-
nally rotated to the second shift after the election, having
been relegated to the day shift the duration of the union cam-
paign. On December 3, the second night he was on the sec-
ond shift, Respondent’s supervisor, Allen Sapp, who was not
on duty at the time, called in and told Steve Roth, the super-
visor on duty, to have an employee go to the second floor
to check the temperatures of the offices as a cold wave was
expected. The supervisor, Steve Roth, assigned Parker to go
up to the second floor where the offices were located and the
third floor where the cooling and heating units were located
and check. The Respondent had instituted a policy of not
permitting employees to go up to the second and third floors
during the second and third shifts without an escort and of
requiring them to sign a log that they had gone inside these
areas at all times. Initially, this policy was initiated in the
summer of 1991, ostensibly because of concern that certain
of Respondent’s plans, trade secrets, or bids would be dis-
closed in whole or in part to Respondent’s sole competitor,
a French company which dominates the field in Respond-
ent’s business of manufacturing undersea piping for the
transportation of oil. Subsequently in October 1991, the Re-
spondent had a massive reduction in force which affected the
entire operation including reductions from top management
personnel on down the line. Respondent had previously em-
ployed uniformed security guards who checked employees at
the gate to the entry of the plant. However after this layoff
Respondent also employed more specialized and highly
trained plainclothes guards known as the ‘‘Hillman guards.’’
Several employees testified that even after the promulgation
of this alleged rule they continued to go to the second and
third floor unescorted as the supervisors would tell them to
go ahead as they were too busy to escort them. Parker testi-
fied that on this occasion after Supervisor Roth told him to
go to these areas he checked with the regular uniform guard
who told him to go ahead on his own. As he was unable to
get to the second and third floors by the stairs as the doors
to these floors were locked, he took the elevator and pro-
ceeded to check the open offices for temperatures and did
not need to make any adjustments on the units. As he was
proceeding down the hallway he was met by two of the
Hillman guards who asked him to identify himself and to
show them his badge. He told them his name and went with
the guards to his locker where his badge was at the time. On
showing the guards his badge, one of them said, ‘‘You are
who you say you are.’’ They then permitted him to go back
to work which he did. On the next day Marlow was in-
formed of this incident and called Parker to his office for
questioning. Marlow testified that he was puzzled about this
incident as the guards informed him that Chris Parker had
initially identified himself as Scott Parker (his brother who
also works at the plant) and was wearing a camouflage outfit
such as that normally worn by Scott Parker. Chris Parker tes-
tified that Marlow questioned him as to what he was doing
on the second and third floor without an escort. Parker ex-
plained the foregoing to Marlow, but Marlow persisted in
questioning him over and over about the incident and after
a great deal of time (20 minutes or so) Parker finally told
Marlow he was being railroaded and walked out of the meet-
ing. Marlow suspended him for 5 days for insubordination
although he testified he would have suspended him in any
event for failing to obtain one of the Hillman guards as an
escort.
Analysis
I find the General Counsel has established prima facie
cases of violations of Section 8(a)(3) and (1) of the Act by
Respondent’s writeup of Chris Parker for the alleged safety
glasses’ violation and the 3-day suspension for insubordina-
tion and the 5-day suspension of Parker for insubordination
concerning the alleged security violation. Respondent’s
knowledge of Parker’s union activities and its animus toward
the Union and its supporters and Battistini and Parker in par-
ticular has been established as evidenced by the disparaging
remarks directed toward them and the unlawful discrimina-
tion against then by denying them their normal rotation with
the consequent loss of an increment in pay and by assigning
them more onerous work. Parker, as the recognized in plant
union organizing leader, was particularly singled out for har-
assment by Marlow who regularly harassed him about the
711WELLSTREAM CORP.
Union and offered to tell him horror stories and imposed his
views on Parker notwithstanding Parker’s protestations.
With respect to the incident involving Supervisor Miller
and the safety glasses, I credit Parker’s and Bryant’s
unrebutted testimony. It is abundantly clear that this was an
obvious attempt to capitalize on any perceived infraction,
even a nonexistent one in Respondent’s efforts to ‘‘get’’
Parker in retaliation for his leadership role in support of the
union campaign. I also credit Parker’s version over that of
Marlow’s concerning the persistence of Marlow in repeatedly
questioning Parker concerning his being on the second floor
without an escort. It is apparent that Marlow was harassing
Parker by subjecting him to repeated questioning after Parker
had answered his questions. It is also clear that Parker went
up to the second floor on the orders of the supervisor for a
work-related reason and that Parker had not had any specific
instructions to obtain a Hillman guard as an escort. I find
that Marlow was seizing on this incident as an opportunity
to build a case of progressive discipline against Parker to
suspend him and ultimately rid Respondent of a known lead-
er of the Union’s organizing campaign. I thus conclude that
Respondent has failed to rebut the prima facie cases of viola-
tions of Section 8(a)(3) and (1) of the Act established by the
General Counsel by Respondent’s writeup and 3-day suspen-
sion of Parker for insubordination for the alleged safety
glasses’ violation and Respondent’s 5-day suspension of
Parker for insubordination in connection with his presence on
the second floor without an escort. Although Parker’s depar-
ture from the meeting with Marlow may or may not have
been the judicious thing to do, I find it was fully warranted
by Marlow’s harassment of Parker. Wright Line, supra;
NLRB v. Transportation Management Corp., supra; Roure
Bertrand Dupont, Inc., supra.
It should be noted in respect to the alleged infractions
committed by Battistini and Parker on which Respondent re-
lied as the bases for their discipline, that nothing in this deci-
sion should be construed as an infringement on the Respond-
ent’s right to run a safe and efficient business operation.
However, I have simply found that these two employees
were disciplined because of their support of the Union and
not because of the alleged infractions attributed to them.
P. Solicitation of Grievances
At the hearing the General Counsel offered a tape and
transcript of a conversation between Plant Manager Ray
Marlow and employee Chris Parker which was secretly taped
by Parker on December 12, 1991 (G.C. Exhs. 31 and 32).
The General Counsel also offered a tape and transcript of a
conversation between Personnel Manager Larry Davis and
employee Daniel Battistini which was secretly taped by
Battistini on November 11, 1991 (G.C. Exhs. 44 and 45). As
the credited testimony of Parker and Battistini and the con-
tents of the taped conversations show, Marlow and Davis
were engaged in conduct violative of the Act directed against
union supporters Parker and Battistini. Marlow when ques-
tioned concerning the tape of his conversation with Parker
testified that the tape reflected the actual conversation. Davis
was not questioned concerning the tapes and Battistini’s tes-
timony that they were accurate recordings of that meeting is
thus unrebutted.
At the hearing the Respondent objected to the tapes and
transcripts on the ground that they were not the best evi-
dence. I received the tapes and transcripts in evidence. Sub-
sequent to the hearing, Respondent filed a posthearing mo-
tion to exclude the tapes and transcripts on the ground that
they were surreptitiously taken in violation of Florida State
Law, citing FS 934 (1991); and Board cases Maywood Do-
Nut Co., 248 NLRB 529 (1980); and Carpenter Sprinkler
Corp., 238 NLRB 974 (1978). The General Counsel and the
Charging Party both filed opposition to Respondent’s motion.
The General Counsel argues in her opposition that the May-
wood Do-Nut and Carpenter Sprinkler cases are not disposi-
tive of this case as those cases both involved tape recordings
of contract negotiations and the Board in those cases ex-
cluded surreptitiously recorded conversations on grounds that
to permit their introduction in evidence would ‘‘inhibit se-
verely the willingness of parties to express themselves freely
and would seriously impair the functioning of the collective
bargaining process.’’ However, in the instant case the parties
offering the tapes (Parker and Battistini) were parties to the
conversation both involving the alleged commission of unfair
labor practices against them and have testified without rebut-
tal to their accuracy. Accordingly, these recordings were both
relevant and probative of the events. East Belden Corp., 239
NLRB 776 (1978). Moreover as the Board held in Plasterers
Local 90 (Southern Illinois Builders), 236 NLRB 329 (1978),
even in cases where the tapes have been recorded in viola-
tion of state law, this does not dispose of questions of their
admissibility in proceedings before Federal agencies. Rather
in the Southern Illinois case the Board relied on the Wire
Interception and Interception of Oral Communications Fed-
eral statute at 18 U.S.C. § 2510 et seq. (1968), which has
been found by two Federal circuit courts to exempt situations
where an individual records a conversation in which they are
a party. In that case the Board cited the two circuit court de-
cisions in which tape recordings were admitted into evidence
even though they had been obtained in violation of state law.
I thus find that the Florida statute in question is not disposi-
tive of the issue of admissibility in this case. I also find the
tapes to have been accurate and authentic as to the conversa-
tions involved and find them to be relevant and probative of
the issues in this case. I accordingly once again deny Re-
spondent’s motion to exclude them from evidence in this
case, Fontaine Truck Equipment Co., 193 NLRB 190 (1971).
Pertinent parts of that tape and transcript are as follows as
Marlow speaks:
I just want to know what personally I have done to
you . . . to cause you so much problems, me person-
ally. Have I not listened to anything you have said?
Have you come to me with anything . . . .
What started all the bad relations [unintelligible]?
Was it when I came or before I came or what the hell
was it?’’ . . . (Pause) Bad history? Like I was saying,
when did the problem start? What is there that the com-
pany can do to try and correct any rights that have been
[done]? Are you telling me that you are not going to
give me any information which will help me to run this
plant better?
I’m asking you for suggestions;
Parker states, ‘‘I have no suggestions. I have no sug-
gestions; Marlow responds: You have no suggestions
for change? That’s an interesting point you want
change, but you have no suggestions for change. Parker
712 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
replies that he just wants to do his job. Marlow then
discusses with Parker that he is trying to establish bet-
ter working relationships between management and the
employees and states ‘‘I am attempting to establish bet-
ter relations and you’re not being cooperative at all and
you have said you will not be cooperative in fact. Later,
Marlow states, I’m simply asking you exactly what in
the hell can we do to get over this adversarial relation-
ship? What? What? What? [G.C. Exhs. 31, 32.]
The above statements were not denied by Marlow who
stated at the hearing that they were generally correct. I find
that Respondent thus violated Section 8(a)(1) of the Act by
soliciting grievances from Parker and by implicitly threaten-
ing him with discipline for refusing to cooperate by bringing
grievances to Marlow’s attention. Although the election had
taken place, its validity was being contested by the filing of
objections which were currently pending and there was in
place an organizing campaign. There was no evidence that
there had been any past practice of airing of employee griev-
ances. Rather Marlow’s meeting with Parker was clearly an
attempt to pin down the leader of the Union’s organizing
committee as to what grievances existed with the implicit
promise that they would be remedied. First Data Resources,
241 NLRB 713 (1979); Raley’s Inc., 236 NLRB 971, 972
(1978).
Q. Conduct Affecting the Results of the Election
As I have found that Respondent violated Section 8(a)(1)
of the Act during the critical period by unlawfully interrogat-
ing its employees regarding their union membership, activi-
ties, and sympathies, by threatening them with plant closure
if they selected the Petitioner Union as their bargaining rep-
resentative, by restricting the access of prounion employees
because of their support of the Union, by informing them
that they would no longer be rotated from shift to shift be-
cause of their support of the Union, by instituting and en-
forcing a uniform rule in order to hide their union T-shirts,
by threatening employee Chris Parker with a lawsuit because
of his activities on behalf of the Union, by threatening em-
ployees with discharge because of their support of the Union,
and by telling its employees it would never permit them to
select a union as their bargaining representative, thus inform-
ing them of the futility of doing so, Objection 1,A which is
based on the above is sustained. As I have found that Re-
spondent violated Section 8(a)(1) of the Act by engaging in
an unlawful preelection betting pool, Objection 1,C is sus-
tained. As no evidence was presented to support Objection
1,F alleging unlawful interrogation of employees by the Em-
ployer a few days prior to the election as to how they were
going to vote, Objection 1,F is overruled. I further find that
Objection 2,C should be sustained as Respondent’s president
and chief executive officer, Robert Miller, distributed a letter
to all employees which threatened plant closure and, in the
event of a strike, threatened employees with loss of employ-
ment by ‘‘Permanent Replacements.’’ It is the Board’s stated
policy to ‘‘direct a new election whenever an unfair labor
practice occurs during the critical period since conduct viola-
tive of Section 8(a)(1) is, a fortiori, conduct which interferes
with the exercise of a free and untrammeled choice in an
election.’’ Super Thrift Markets, 233 NLRB 409 (1977), cit-
ing Dal-Tex Optical Co., 137 NLRB 1782, 1786–1787
(1982). I accordingly recommend that Objections 1,A, 1,C,
and 2,C be sustained, that Objection 1,F be overruled, that
the election be set aside, and that a rerun election be con-
ducted.
CONCLUSIONS OF LAW
1. The Respondent, Wellstream Corporation, is and has
been at all times material an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Charging Party, United Association of Journeymen
and Apprentices of the Plumbing and Pipefitting Industry of
the United States and Canada, Local Union No. 229, is and
has been at all times material a labor organization within the
meaning of Section 2(5) of the Act.
3. By its interrogation of its employee, Scott Parker, by its
general superintendent, Jeff Jordan, on or about June 14,
1991, concerning the union activities of its employees, Re-
spondent violated Section 8(a)(1) of the Act.
4. By its interrogation of its employee, Chris Parker, by
Security Manager Harvey Driscoll on or about June 28,
1991, as to whether he had heard who was behind the union
talk among the employees in the plant, Respondent violated
Section 8(a)(1) of the Act.
5. By its interrogation of its employee, Chris Parker, by
Engineering Manager Ray Marlow on or about July 9, 1991,
whether he would be attending an upcoming representation
hearing scheduled for July 11, 1991, Respondent violated
Section 8(a)(1) of the Act.
6. By its distribution and maintenance of an overly broad
rule prohibiting solicitation, Respondent violated Section
8(a)(1) of the Act.
7. By its implementation and enforcement of a new uni-
form policy in order to curtail the wearing of union T-shirts,
Respondent violated Section 8(a)(1) of the Act.
8. By the threat of unspecified discipline issued by Super-
visor Allen Sapp to employee Chris Parker if he failed to
comply with Respondent’s disparately enforced uniform pol-
icy, Respondent violated Section 8(a)(1) of the Act.
9. By the statements made by Robert Miller, its president
and chief executive officer, to employees in a meeting held
on August 2, 1991, that Respondent would not allow a union
at its facility, thus demonstrating the futility of the employ-
ees’ selection of the Union as their elected collective-bar-
gaining representative and by the threat of discharge of union
supporters issued to employees by Miller at that meeting, Re-
spondent violated Section 8(a)(1) of the Act.
10. By its threat to discharge prounion employees issued
by its supervisor, Jack Seale, issued to employees in the
breakroom shortly after the election on August 30, 1991, Re-
spondent violated Section 8(a)(1) of the Act.
11. By the threat of a lawsuit issued by its general super-
intendent, Jeff Jordan, during the first week of August 1991
to employee Chris Parker because of his union activities, Re-
spondent violated Section 8(a)(1) of the Act.
12. By its threat of the loss of a wage increase issued by
its supervisor, Jack Seale, to its employees Steve Roth and
Curtis Spencer on September 20, 1991, Respondent violated
Section 8(a)(1) of the Act.
13. By the solicitation of grievances by Plant Manager
Ray Marlow of employee Chris Parker on December 12,
1991, Respondent violated Section 8(a)(1) of the Act.
713WELLSTREAM CORP.
4 Under New Horizons, interest is computed at the ‘‘short term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendment to 26 U.S.C. § 6621.
5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
14. By its institution and conduct of a betting pool on the
results of the upcoming representation election, Respondent
violated Section 8(a)(1) of the Act.
15. By its restriction of access to the second and third
floor of its prounion employees, Respondent violated Section
8(a)(1) of the Act.
16. By its statements to employees John Chris Parker and
Jon Eric Clenney that they would not be rotated because of
their support of the Union, Respondent violated Section
8(a)(1) of the Act.
17. By its imposition of more onerous working conditions
on its prounion employees, Respondent violated Section
8(a)(1) and (3) of the Act.
18. By its failure to rotate prounion employees John Chris
Parker, Daniel Battistini, and Jon Eric Clenney, Respondent
violated Section 8(a)(1) and (3) of the Act.
19. By its issuance of written warnings to Daniel Battistini
on October 17 and 31, 1991, and its suspension of Battistini
on October 31, 1991, and its discharge of him on November
6, 1991, Respondent violated Section 8(a)(1) and (3) of the
Act.
20. By its issuance of a written warning on October 16,
1991, and 3-day suspension to Chris Parker on October 17,
1991, and by its 5-day suspension of Parker on December 5,
1991, Respondent violated Section 8(a)(1) and (3) of the Act.
21. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
As I have found that the Respondent has engaged in cer-
tain unfair labor practices within the meaning of Section
8(a)(1) and (3) of the Act, I shall recommend Respondent
cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act, including the
posting of an appropriate notice. Respondent shall rescind its
unlawful written warnings issued to its employees Daniel
Battistini and John Chris Parker, its unlawful suspensions of
Chris Parker and Daniel Battistini, and its unlawful discharge
of Daniel Battistini. Battistini shall be offered full reinstate-
ment to his former position or to a substantially equivalent
position if his former position no longer exists. Employees
Jon Eric Clenney, Daniel Battistini, and John Chris Parker
shall be made whole for all loss of pay and benefits incurred
by them as a result of Respondent’s unlawful failure and re-
fusal to rotate them in accordance with its established prac-
tice. John Chris Parker shall be made whole for all loss of
pay and benefits, including seniority and other rights and
privileges sustained by him as a result of Respondent’s un-
lawful suspensions of him. Daniel Battistini shall be made
whole for all loss of pay and benefits including seniority and
other rights and privileges sustained by him as a result of
Respondent’s unlawful suspension and discharge of him.
Backpay and benefits shall be with interest as computed in
the manner prescribed in F. W. Woolworth Co., 90 NLRB
289 (1950), with interest prescribed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).4 Respondent shall also
expunge its records of all references to the unlawful failure
to rotate Clenney, Parker, and Battistini, the unlawful
issuance of written warnings to Parker and Battistini, the un-
lawful suspensions of Parker and Battistini, and the unlawful
discharge of Battistini and inform them in writing that this
has been done and that such unlawful actions will not be
used against them in any manner in the future. Respondent
shall also preserve all necessary records for computing back-
pay and benefits and make them available to the Regional
Director for Region 15 or his representatives.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The Respondent, Wellstream Corporation, Panama City,
Florida, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating its employees concerning their union
membership, sympathies, and activities and those of their fel-
low employees.
(b) Threatening employees with discharge, plant closure,
unspecified discipline, and the futility of their support for or
selection of a union, with the withholding of their normal
shift rotation, with a lawsuit, or with loss of a wage increase.
(c) Instituting and disparately enforcing a uniform policy
in order to restrain or inhibit its employees’ union activities.
(d) Distributing and maintaining an overly board nonsolici-
tation policy.
(e) Refusing or failing to follow its normal practices of
shift rotation for prounion employees.
(f) Instituting and conducting a betting pool on the out-
come of a representation election.
(g) Soliciting grievances with the implicit promise to rem-
edy them in order to discourage its employees from choosing
union representation.
(h) Restricting access of prounion employees to the second
and third floors of its facility.
(i) Assigning more onerous duties to its prounion employ-
ees in order to isolate them from other employees and to re-
taliate against them for their engagement in union activities.
(j) Issuing written warnings, suspending, and discharging
employees because of their membership in or their support
of a union or their engagement in activities on behalf of a
union.
(k) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Rescind its unlawful written warnings issued to Daniel
Battistini and John Chris Parker, its unlawful suspensions of
Battistini and Chris Parker, and its unlawful discharge of
Daniel Battistini. Offer Battistini full reinstatement to his
former position or, if his former position no longer exists,
offer to reinstate him to a substantially equivalent position.
Make Jon Eric Clenney, John Chris Parker, and Daniel
Battistini whole for all loss of pay and benefits and other
rights and privileges including seniority sustained by them as
714 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
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.’’
prescribed in the remedy section of the decision as a result
of Respondent’s unlawful refusal and failure to rotate them
from shift to shift in accordance with its normal practice, and
for the suspensions of Battistini and Parker and the discharge
of Battistini.
(b) Remove from its records all references to its unlawful
refusal to rotate Clenney, Parker, and Battistini, its issuances
of a warning and suspensions to Parker, and its issuance of
warnings and its suspension and discharge of Battistini and
inform them in writing that this has been done and that such
unlawful acts will not be used against them in any manner
in the future.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its facility, copies of the attached notice marked
‘‘Appendix.’’6 Copies of the notice, on forms provided by
the Regional Director for Region 15, after being signed by
Respondent’s authorized representative, shall be posted by
Respondent immediately on receipt and maintained for 60
consecutive days in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER RECOMMENDED that the election held on
August 29 and 30, 1991, in Case 15–RC–7620 be set aside,
and that the case be remanded to the Regional Director for
Region 15 for the purpose of conducting a new election.