Wellstream Corp.

National Labor Relations Board - Board Decisions

Jun 13, 1996

321 N.L.R.B. 455 (N.L.R.B. 1996)

455
321 NLRB No. 64
WELLSTREAM CORP.
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.
2 The Charging Party has excepted to the failure of the judge to
impose certain additional remedies on the Respondent. To the extent
that the Charging Party is seeking to expand the Board’s underlying
Order to include additional requirements, we deny the Charging Par-
ty’s exceptions on the grounds that the Charging Party’s request is
untimely. To the extent that the Charging Party is seeking an award
of litigation expenses for the litigation of the compliance proceeding,
we deny its request as lacking in merit, on the grounds that the Re-
spondent’s defenses in the compliance proceeding were not clearly
frivolous within the meaning of Frontier Hotel & Casino, 318
NLRB 857 (1995).
Although Member Cohen did not participate in Frontier Hotel &
Casino, and does not necessarily agree with it, he concurs that the
Charging Party’s request for extraordinary remedies lacks merit.
Wellstream Corporation and United Association of
Journeyman 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, and 15–CA–11650–4
June 13, 1996
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On January 23, 1996, Administrative Law Judge
Lawrence W. Cullen issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the Charging Party filed cross-exceptions and a
supporting brief. The General Counsel filed an answer-
ing brief to the Respondent’s exceptions and the Re-
spondent filed an answering brief to the Charging Par-
ty’s cross-exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Wellstream Corporation,
Panama City, Florida, its officers, agents, successors,
and assigns shall pay Daniel Battistini $53,994.38 as
of the July 27, 1995 backpay hearing with interest as
computed in New Horizons for the Retarded, 283
NLRB 1173 (1987), with backpay and interest continu-
ing to accrue until the date Battistini is reinstated or
is offered reinstatement and refuses, minus any tax
withholding required by Federal and state laws.
Stacey M. Stein, Esq. and Kathleen McKinney, Esq., for the
General Counsel.
Michael S. Mitchell, Esq. and Timothy H. Scott, Esq. (Fisher
and Phillips), of New Orleans, Louisiana, for the Respond-
ent.
Brian A. Powers, Esq. (O’Donoghue and O’Donoghue), of
Washington, D.C., for the Charging Party.
DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge. This
is a backpay case that was heard before me on July 27 and
28, 1995, at Panama City, Florida. Prior to this I issued a
decision in the underlying unfair labor practice case in
Wellstream Corporation, Cases 15–CA–11631, 15–CA–
116504, 15–CA–11650–2, 15–CA–11650–3, 15–CA–116504,
and 15–RC–7620 on March 15, 1993, which decision was
appealed to the National Labor Relations Board (the Board)
that affirmed my decision as modified, 313 NLRB 117, 698,
709 (1994). In addition to a finding of a number of 8(a)(1)
violations of the National Labor Relations Act (the Act) in-
volving unlawful threats and interrogation, solicitation, policy
changes, and other 8(a)(1) violations, I found violations of
Section 8(a)(1) and (3) of the Act committed against union
supporters including the unlawful warnings issued to its em-
ployee Daniel Battistini and its unlawful suspension of
Battistini on October 31, 1991, and its discharge of him on
November 6, 1991. My order as adopted by the Board pro-
vided in pertinent part that the Respondent rescind the un-
lawful warnings, suspension, and discharge of Battistini and
offer him full reinstatement to his former position or to a
substantially equivalent position if his former position no
longer existed and that Battistini 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 suspension and discharge of him. On October 7, 1994,
Respondent entered into a stipulation with the Acting Re-
gional Director of Region 15 of the Board wherein it agreed
to forgo its right to appeal the Board’s Order issued on Feb-
ruary 25, 1994, and provided for the submission of issues
raised by the Respondent’s refusal to reinstate Battistini and
concerning the amount of backpay due for resolution by an
administrative law judge. As of the date of the hearing, Re-
spondent owed Battistini $53,994.38 in backpay according to
the calculation of backpay submitted by the General Counsel
in an amended Specification and Notice filed by the General
Counsel on July 27, 1995. Respondent did not challenge the
method of calculating backpay utilized by the General Coun-
sel nor the amount of backpay derived from those calcula-
tions and admitted the accuracy of the General Counsel’s cal-
culations of overtime pay owing to Battistini and that of a
Christmas bonus given the employees in December 1994.
However, Respondent contends that Battistini’s backpay pe-
riod was tolled effective December 31, 1991, which was the
date through which it contends Battistini would have been
paid as a result of a reduction in force by Respondent on No-
vember 25, 1991, as Respondent contends that Battistini
456 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
would have been laid off with three other maintenance de-
partment employees, who were laid off at that time. Re-
spondent further contended at the hearing that Battistini will-
fully incurred a loss of employment by abandoning his first
interim employment. In its brief it abandoned its earlier con-
tention of an alleged failure of Battistini to diligently seek
other interim employment to offset his loss of earnings. Thus
the issues before me are:
1. Whether Respondent’s obligation to reinstate Battistini
and its backpay obligation should be tolled as of the Novem-
ber 25, 1991 reduction in force.
2. Whether Battistini willfully incurred a loss of earnings
by abandoning interim employment with B & S Electric so
as to toll Wellstream’s backpay obligation to the extent of
which the duration of that employment would have continued
in the absence of the willful abandonment of this employ-
ment.
The answer to both of these issues is no.
Facts
In November 1991, Respondent had a substantial reduction
in its work force according to the unrebutted testimony of
Tim Hall, the former director of special projects for the
Hillman Company, an investment holding company that was
the majority stockholder of Wellstream in 1991. Hall testified
that the reduction in force was necessitated by substantial
losses and was carried out at the behest of Respondent’s ma-
jority stockholder Hillman Company on the recommendation
of Simmons & Company International, an oil and gas cor-
porate finance consulting firm. Wellstream had posted a $20
million loss on revenues of approximately $9 million for the
fiscal year ending June 10, 1991. According to Hall Re-
spondent’s dire financial straits brought the investment com-
pany to consider liquidation of Respondent as a possible al-
ternative. Ultimately according to Hall it was decided to take
other cost cutting measures including a reduction of person-
nel including management and hourly employees. According
to the testimony of Hall the report issued by Simmons called
for the reduction of three mechanics in the maintenance de-
partment not including Battistini who had already been sus-
pended and was ultimately terminated in November 1991.
Thus, no consideration was given to Battistini for retention
in the reduction in force as he had already been terminated
in November. Respondent contends that had he not been un-
lawfully terminated in November 1991, however, and had
continued as an employee he would have nonetheless been
laid off in what it contends was a permanent layoff for non-
discriminatory reasons in November 1991, as a result of his
alleged failings as an employee and as a result of a compari-
son of Battistini’s job performance and skills as an employee
with those of other mechanics and a helper in the mainte-
nance department.
Former Plant Manager Ray Marlow testified as follows:
He had ultimate authority to determine who would be laid
off among the mechanics. If Battistini had still been em-
ployed by Respondent at the time of the reduction in force,
Battistini would have been one of the employees perma-
nently laid off. He noted that there were some instances in
early November 1991 wherein Battistini:
had been working on some equipment which created
some safety problems. Didn’t follow through on some
work he was supposed to have been doing and a par-
ticular piece of equipment that had the safety problems.
And in addition to that I felt and the maintenance su-
pervisor (Allan Saap) felt that we occasionally had to
go check on his work when he was assigned a job to
make sure it was done properly.
He tended to take the shortcuts. Instead of doing a
job right the first time just doing it kind of half right,
you might say and just didn’t show a—the skills of a
good tradesman.
Marlow testified further that he was not satisfied with the
quality of Battistini’s work. When asked by me what he
based his opinion on that Battistini would not have been re-
tained if he had still been employed at the time of the reduc-
tion in force in late November 1991, Marlow cited, ‘‘The de-
gree of trust.’’ When asked further by me if there was any-
thing else on which he was basing his lack of trust in
Battistini other than the three items he had testified about in
the prior hearing (on which Battistini’s unlawful suspension
and discharge had been based), Marlow answered:
I had to trust Mr. Saap’s judgment that he told me
he had to go over that work that had been assigned to
Battistini on previous occasions, and that in some cases
it was not carried out satisfactory and he had to go
back and redo it.
In my personal observation of the general work prac-
tices and the cleanliness and how they handle pieces of
equipment while they’re working on it.
JUDGE CULLEN: Anything specific?
MARLOW: Not that I could recall now . . . .
Marlow acknowledged that an August 6, and 10 appraisal of
Battistini rated his job performance as ‘‘good’’ and ‘‘excel-
lent.’’ On cross-examination by the Charging Party Marlow
was asked whether Battistini had any strengths as an em-
ployee and replied, ‘‘[H]e didn’t gripe a lot sometimes when
he was given nasty assignments, you know.’’ Although it
was established that Respondent is one of only two compa-
nies in the world making the flexible pipe for undersea trans-
portation of oil and the General Counsel elicited unrebutted
testimony from Battistini and other employee witnesses con-
cerning numerous items of specialized machinery utilized in
Respondent’s operation on which Battistini had been working
on for a year and a half prior to his discharge, Marlow con-
tinued throughout his testimony to disparage Battistini’s ex-
perience by reference to his prior experience as a mechanic
in the United States Navy. Marlow denied he was ever told
to keep the best and the brightest employees as Hall testified
he had directed be done but rather testified he was told to
use his judgment on what he needed to run the shop. He tes-
tified the reason for the layoff was to cut costs.
Allen Saap who was a maintenance supervisor from early
1991 to about a year before the hearing testified as follows:
He is currently a senior test technician in the engineering de-
partment, a position he has held for the last 6 months and
was in special projects immediately prior to his present posi-
tion. He has been at the plant for 17 years and has been with
Wellstream since they took over the plant 6 years ago. Short-
ly before the layoffs in November 1991 (a matter of days),
he was asked by Marlow to look at the personnel in the
maintenance department under his supervision as there was
457WELLSTREAM CORP.
going to be a reduction in force. He was asked to make a
list of the employees under his supervision according to their
qualifications and the ‘‘real criteria to be used was to main-
tain the plant and the operation of the plant and the versa-
tility of the people and the qualifications that they would
have.’’ Seniority did not play a big part. He was not given
any target numbers to reach and he came up with a hand-
written list ranking employees in the maintenance department
that he gave to Marlow. The employees who were laid off
‘‘basically’’ followed his list. Although Battistini was laid
off in early November 1991, and the layoff occurred in late
November 1991, he believes that Battistini was on the list al-
though he is not certain whether Battistini’s name was on the
list. When he became maintenance foreman in the spring of
1991, Battistini had already been promoted to maintenance
mechanic. Battistini ‘‘had some basic electrical and elec-
tronic experience, had very little mechanical abilities,’’ and
‘‘[i]t seemed to me his work ethics were real light.’’ All he
knew about Battistini’s prior experience was that he had
some electronic experience from the Navy. Battistini could
not work with little or no supervision. There were times
when Battistini had to be followed up to see if he had done
all the maintenance on his check list for the extruder line.
He disagrees with the excellent ratings of Battistini made by
former Supervisor James Wilson in 1990 based on his obser-
vation of Battistini’s work in 1991 and believes that even a
20-year maintenance mechanic in an industrial environment
would not get such high marks. At Respondent’s attorney’s
request he went through the lists of the 10 individuals in the
maintenance department who were considered for layoff in
making up his list and would have rated all of the employees
above Battistini based on skills and abilities in November
1991.
Herman Riley was the electronic technician. And
also the lead mechanic. Herman [Riley] possessed the
skills in electronics and in depth electrical experience.
He had also several years of industrial experience in
electronics and electrical.
He also had been involved in a lot of mechanical ex-
periences previous years. I worked with Herman in pre-
vious years in the same facility in which he was a
maintenance mechanic at that time.
He had worked on overhead cranes a lot. He had a
lot of knowledge of the overhead crane, the facility
itself, the chillers and boilers, total facility. He had a
lot of knowledge and experience in all the outside
power circuits and substations and all the transformers.
Arsenio Bacani was a maintenance mechanic which
had a lot of electronic and electric experience. He also
had some mechanical experience.
He was, basically, assigned into the facility mainte-
nance, which he took care of all the air conditioner, the
chillers, the boilers, all the air handlers, switch gear,
and general facility maintenance.
And also worked on overhead cranes and helped out
on the production equipment when needed.
Mr. Parker was a maintenance mechanic. Mr. Parker
has a lot of experience in mechanical. He has a lot of
experience in electrical. He has some experience in
electronics.
Basically Mr. Parker was involved in the set up of
the plant machinery and equipment.
Had a lot of experience on overhead cranes through-
out the plant. Basically had been used in some of the
facility maintenance also.
Ricky Cranford was a maintenance mechanic. He
was very knowledgeable and had several years of in-
dustrial type, fabrication type, mechanical. Real good
on gear boxes. Real good on general mechanical main-
tenance.
He had a basic background in electrical. He had
worked a lot on the overhead cranes. He had been in-
volved in some of the facility work, also. And he had
been in on some of the set up of some of the equip-
ment.
Mr. Roper was a maintenance mechanic. He had a
strong background in electrical motors. He was used
quite frequently on repairs of the overhead crane mo-
tors, electrical motors, a lot of the motors around the
plant. He had a strong background in that.
He also had a mechanical background, several years
of industrial type experience.
Mr. Snow was a helper at that time, which was—he
had a background in electrical work. He came up
through apprenticeship type program. And he showed
good work ethics during that time.
And he had a strong, strong desire to learn and work.
Gerald Riley [who was laid off] was a maintenance
mechanic. He had a real strong background in electrical
and electronics. He had several years of experience in
industrial maintenance, electrical maintenance.
And he was very heavily relied on during that period
of time as to working on some of the equipment we
had as far as the electrical and electronics.
Mr. Bert Greer [who was laid off] was a mainte-
nance mechanic that had several years of—He was al-
most an expert in hydraulics. And he had some me-
chanical background. Very little electrical background.
He’d spent most of his time in the Service and had
about ten years of industrial maintenance background.
Eric Clenny [who was laid off] was a maintenance
mechanic. He had an electrical background. He was
previously in the production area. He had acquired a lot
of knowledge of the equipment, especially the carcass
line and extrusion line, the functions. He understood
how to work on them a lot better by knowing the
equipment previously.
He had some mechanical abilities.
Since the 1991 layoffs none of the laid-off employees have
been hired back except Supervisor James Wilson who was
hired back as a maintenance mechanic. He has hired four or
five new employees in addition to Wilson into the mainte-
nance department since the reduction in force.
He became Battistini’s supervisor in the summer of 1991.
On one occasion he found that Battistini had not done some-
thing on the extruder line although it had been checked off
as having been done. He does not recall what it was. He
does not recall the reason it was not done. On cross-exam-
ination by the General Counsel:
Q. What’s the second occasion you can recall having
to correct Mr. Battistini or follow-up on his work?
458 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Riley is by all accounts the most experienced maintenance me-
chanic at Wellstream and particularly with respect to performing
electrical and electronic work, which electronic work involves get-
ting into complex components of electrical equipment rather than
limited to doing wiring and the like.
A. Exact situations, you know, that would be just
hearsay to say that. But there was other incidents
throughout the time period.
And as far as exact situations, I’m not here to state
those.
He recalls ‘‘counseling Battistini on occasions, at least two
or three times with James Wilson present, also.’’
‘‘Discussing his workmanship, his lack in showing up for
work, his lack in tardiness, his lack in being on third shift
and not coming in. These kind of things.’’ No note was put
in Battistini’s file concerning the counseling about the failure
to complete the work on the checklist for the extruder. He
also recalls an incident concerning the use of improper tools
and the jamming of the nozzle on the fuel hose, both of
which incidents led to discipline in the underlying case and
(which discipline was found unlawful by me). He did not
write Battistini up for his alleged tardiness and attendance
problems.
On further cross-examination of Saap by the General
Counsel:
Q. But as far as violations of safety policies or pro-
cedures, the only ones you’re aware of are the extruder
line, the channel locks, the fuel nozzle, and what he
eventually gets terminated for, the A-frame. Isn’t that
correct?
A. Those are the main ones, yes, that I’m aware of.
Q. I didn’t ask you the main ones. I said those were
the only ones you’re aware of. Are you aware of oth-
ers?
A. As far as detail, no.
Saap testified further that he believes Battistini’s name
was on the list he gave to Marlow and that Marlow adopted
his recommendations. He gave the handwritten list to
Marlow but is not 100 percent sure that Battistini’s name
was on the list. His list did not take into account any alleged
tardiness or attendance problems of Battistini.
Saap testified that Watkins Engineering was brought on
site to perform work formerly performed by the maintenance
department employees. At one point there were close to 20
Watkins employees on the site and 10 of them were perform-
ing maintenance work. The Watkins employees were on site
for about a year. They were brought in within a year after
Battistini was terminated. On cross-examination he testified
he was not using Watkins to screen for employees. When
confronted with a memorandum dated March 1, 1993, how-
ever, from him to Don Lenz, who was then the operations
manager, he acknowledged that he had written to Lenz, ‘‘I’ll
suggest at this time that we continue to use the Watkins con-
tractor to add these personnel. This will allow us to review
the personnel for further employment with Wellstream.’’ He
testified that at this point in time Watkins was being phased
out and he needed to hire additional employees to replace
them.
Herman Riley was called by Respondent to testify.1 Riley
was asked to compare Battistini’s ability with several em-
ployees including Bacani, Parker, and Snow and consistently
compared Battistini less favorably in terms of electrical skill
or electronics work although he conceded that Battistini was
a willing worker and he had previously recommended him
for employment with Wellstream. Ultimately Riley conceded
that he had not worked side-by-side with many of the me-
chanics in November 1991. ‘‘I don’t know what any of these
guys was actually working on in particular in 1991.’’ He tes-
tified further:
Q. Okay. So my question again to you is, back in
1991 is it your testimony that this—other than you and
Mr. Gerald Riley, everybody else was pretty much
equal as far as their electronic abilities, if they did elec-
tronic work?
A. Yes.
With respect to the issue of whether Battistini had aban-
doned his interim job with B & S Electric so as to toll Re-
spondent’s liability for backpay, Respondent called Jack Rus-
sell who was the owner of B & S Electric in 1991, which
was an electrical contractor hired for a 4 to 6 weeks job to
work on a pipe laying machine that B & S was working on
at Wellstream. B & S was a subcontractor working for Wat-
kins Engineering that was the general contractor then per-
forming work at Wellstream. The machine was located just
outside of Wellstream’s building. The project began the first
or second week of November and was estimated to last 4 to
6 weeks. There were 10 electrical workers on B & S’s pay-
roll including Battistini. Battistini’s last day of work was No-
vember 26, 1991, as he did not show up for work on No-
vember 27, although there was approximately 2 weeks more
work. Battistini did not give him any indication that he
would not be there on November 27. A week later either he
or his wife or both came back to pick up his paycheck. At
that time there was at least another week of work to be done.
He does not know whether Battistini asked to return to work.
Russell had Frank Alsobrook on the job as his general fore-
man who assigned the work. Russell did not have an office
at the Wellstream jobsite but visited it once or twice a day.
He does not know whether Battistini spoke with Alsobrook
on his last day of work. Alsobrook no longer works for B
& S Electric.
James Snow who began working as a general helper in the
maintenance department in May 1990, and who was not in-
cluded in the November 1991 layoff, testified that when he
was hired he did not know much about the machinery that
was sophisticated equipment. Snow assisted other mechanics
for a time and was promoted to mechanic a year and a half
to 2 years after his hire. He currently works in the mainte-
nance department. He often assisted Battistini. Snow testified
that in November 1991, Battistini had more electrical and
electronic experience than he did and definitely more me-
chanical experience on the machines at Wellstream as
Battistini had been there longer and had helped set up the
machines. Snow testified further that Battistini was an out-
spoken and open union adherent whereas, he himself ‘‘don’t
say too much in here.’’ He testified further that he was more
skilled than Arsenio Bacani. He further testified that if
Battistini had been working at the time of the reduction in
459WELLSTREAM CORP.
force, he would have laid off Arsenio Bacani if a fourth per-
son were to be laid off.
Former employee Ricky Cranford who was employed at
Wellstream as a maintenance mechanic from May 5, 1990,
until February 10, 1995, when he was discharged by Re-
spondent (a discharge that is the subject of a dismissed unfair
labor practice charge filed by him presently pending on ap-
peal), testified as follows: Prior to Wellstream he had worked
on cranes and machinery, gear boxes, and had industrial me-
chanical experience. He testified that most of the machines
at Wellstream were unique to Wellstream and that he had
only worked with four of them prior to coming to
Wellstream such as fork lifts, air compressors, big boilers,
and cranes. Some of the machines unique to Wellstream
were the carcass machine, the extruder line, the armor line,
flexbox, bobbins, electric takeups, cortinovis, traverse stands,
plastic welders, and Hauksan welders. He and Battistini both
worked on all of these machines. Battistini was more skilled
than Snow or Bacani, both of whom were helpers. Battistini
was already employed when he was hired and had more ex-
perience on the machines than he did. He, as a maintenance
mechanic, and Battistini, as an electrician, were often teamed
up together and worked on the third shift when there was no
maintenance supervisor on duty. Battistini worked unsuper-
vised most of the time. Battistini was very versatile as a me-
chanic and could do electrical work that Cranford could not.
Battistini could also do mechanical work. In November 1991
Snow was an electrician and had done wiring but Battistini
could do electronic work. Cranford believes his mechanical
experience was greater than that of Battistini. In November
1991, however, he would have put himself and Snow on the
list to be laid off rather than Battistini.
John C. Parker, a maintenance mechanic, testified as fol-
lows: He was hired by Wellstream as a maintenance me-
chanic on December 4, 1989, and continues as an employee
there. He has never been laid off or fired from Wellstream.
Prior to working at Wellstream he had no industrial experi-
ence in mechanical or electrical or electronic work. In No-
vember 1991 at the time of the layoff, Herman Riley had the
most electronic experience among the mechanics and Gerald
Riley and Battistini would follow him in terms of most elec-
tronic experience. With respect to electrical skills, he would
have placed Herman Riley first again and next would be
Gerald Riley and then Eric Clenny and Snow and just below
them Battistini and then himself and then A. J. Roper,
Bacani, and then Bert Greer in terms of electrical experience.
In terms of mechanical experience Cranford was the best and
following him would be Battistini and Roper and then Greer,
Herman Riley, Gerald Riley, Clenny, and Snow. Greer had
the most hydraulic experience by far and Cranford was next
and then Battistini and the rest of the mechanics were ‘‘pret-
ty green’’ in this area. Cranford had the most pneumatic skill
followed by Battistini, Roper, and Gerald Riley and the rest
did not have pneumatic experience except probably Greer. In
November 1991 Parker was not able to work on all of the
machines at Wellstream as he had no formal training or skills
and was still learning. Battistini was definitely able to work
on more machines then he was in November 1991. On some
occasions he called on Battistini to help him when he was
unable to determine how to fix the machines by himself. As
a helper Arsenio Bacani was used most often of all the em-
ployees in the maintenance department to run errands for the
department and help move office furniture and employees’
personal belongings and hang pictures and assist others as re-
quired.
Parker testified further that shortly after Battistini’s layoff,
Battistini had lost an appeal for unemployment compensation
and Marlow came looking for Parker at the end of the shift
and ‘‘was very happy and telling me that Daniel had lost his
final appeal.’’ Marlow followed Parker to his locker and told
him to remove Battistini’s name from his locker and said,
‘‘Daniel Battistini will never work for Wellstream again.’’
Subsequently, in a meeting between Parker and Hall held at
Parker’s request in September 1992 (almost a year after
Battistini’s discharge) to discuss continuing harassment of
Parker by Marlow, Hall told Parker that Battistini would
never work for Wellstream again. In response to questions on
cross-examination by the Charging Party, Parker testified that
Gerald Riley, Bert Greer, and Eric Clenny who were laid off
were all very open and outspoken supporters of the Union
and were some of the most highly skilled of the maintenance
mechanics. Gerald Riley was brought back as a temporary
employee working for a contractor but was not rehired by
Wellstream although Wellstream has since hired new em-
ployees for the maintenance department. In response to an
inquiry on cross-examination by the Respondent’s counsel,
Parker testified that if he had determined whom of the main-
tenance employees should be laid off in the reduction in
force of four employees in November 1991, he would have
laid off Bacani, Snow, Roper, and himself as the remaining
employees were able to do the work on their own (‘‘without
a burden.’’)
The General Counsel called Jon Eric Clenny who testified
as follows: He was employed by Wellstream about a year
and a half. He started as an operator but transferred from the
extruder line to be a mechanic and electrician in the mainte-
nance department until the layoff. Prior to working at
Wellstream he ‘‘had a couple years as a millwright appren-
tice, and then approximately 8 to 10 years as an electrician.’’
He did both commercial and industrial electrical work prior
to his employment at Wellstream. He sought employment
with B & S Electric at the Wellstream jobsite ‘‘probably
within the first week or so after leaving Wellstream.’’ He
spoke with the B & S Electric foreman named Frank, who
informed him they were not hiring as the job was ending and
they were laying off and had just laid Battistini off. Frank
told him to go to the office and put his application in as they
would be hiring at a later date. Clenny testified he could not
assess the quality of Battistini’s work and ‘‘I really can’t be
specific. That’s been 4 years. I really don’t remember.’’ He
also testified that in the instance when he applied at B & S
he saw Battistini that day who had his check from B & S
and said he had been laid off. On cross-examination Clenny
was asked on the basis of job skills whether he would have
laid Battistini off if he were making the decision that four
employees to lay off in the maintenance department and an-
swered, ‘‘General job skills, probably.’’ He also testified on
redirect ‘‘Dan was a good worker, as far as I know.’’
The General Counsel also called Barbara Callahan who
testified she worked at Wellstream from November 1990 to
January 1995. She was a personnel administrative assistant
and reported to Director of Human Resources Larry Davis
who reported to the president of Wellstream, Bob Miller. She
handled screening and interviewing of employees, applica-
460 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tions, maintenance of files, and keying in personnel informa-
tion. She worked almost the entire day with Davis and they
had adjoining offices. She typed 95 percent of the antiunion
literature during the 1991 union organizing campaign at
Wellstream that she received from Davis and Respondent’s
outside counsel. She pulled the list of employees from Re-
spondent’s data base for a list of employees to be laid off
that was sent by Davis to Hillman and they received the list
back from Hillman. Davis then met with supervisors and di-
rectors in different departments and changes were made and
a second list was developed by Davis and ultimately a third
list was developed. Davis and President Miller were respon-
sible for the final selection of employees for layoff. During
the month or so that the layoff list was being prepared he
commented concerning union supporters ‘‘that he would like
to get rid of the Battistini’s, and Parkers and Cranfords and
several names,’’ and ‘‘he would like to get rid of the Ricky
Cranfords, the Battistinis, and the Greers, of the union mem-
bers.’’ ‘‘I remember him saying that he had to be careful and
not lay off too many union members because then it was
going to be obvious of what he was doing.’’ During this
preparation period for the layoff Davis talked with Respond-
ent’s counsel on numerous occasions and also with Miller
and Marlow. She recalls that the focus was on maintenance
because ‘‘there were a lot of union supporters in mainte-
nance.’’ During this period Davis discussed disciplining
union supporters and writing them up for walking in the
aisles without safety glasses and other infractions. She also
recalls Davis saying after Battistini was terminated that if
Battistini were on fire he would not ‘‘piss on him to put him
out.’’ After the union campaign began Davis would not inter-
view any applicants who indicated their union membership
on their application because ‘‘He didn’t want to add addi-
tional fuel to the fire’’ (by adding union members or support-
ers to the Respondent’s work force.) Callahan was terminated
by Respondent for ‘‘lack of secretarial skills.’’
The General Counsel also called John Sessions who was
employed by Watkins Engineering from 1990 until 1993 as
their general foreman. He was sent in November 1992, by
Watkins, to Wellstream to oversee a maintenance contract
they had with Wellstream wherein they were performing
general plant maintenance for Wellstream. He was respon-
sible for the hiring and firing of employees for the
Wellstream jobsite. His employees needed to be cleared with
a fellow named Kipp Alstaetter at Wellstream and did the
same maintenance work of the Wellstream employees but
were under the direction of Allen Saap. Sessions did ‘‘an
overall plant evaluation of what they needed to do at the
plant to upgrade it or to just get their maintenance back up
on—up to par.’’ The plant maintenance was ‘‘very lax,’’ in-
cluding safety hazards for electrocution. The day (in mid-No-
vember 1992) he came to Wellstream he had a meeting with
Davis and Marlow. Davis told him that Wellstream ‘‘had had
a lot of Union trouble, and that they were—they had just had
a vote a year or so before and the vote was—they had beat
the vote and they were in court—had a hearing in court and
they were still fighting labor—I mean, they were still fight-
ing the Union.’’ Davis gave him ‘‘a list of eight or nine em-
ployees of people that he said he did not want hired back.’’
The list was given verbally and he recalls, ‘‘A [Eric] Clenny
fellow was on it. Eric [Gerald] Riley, and a Dan Battistini,
were three names that stood out, because Mr. Davis was very
adamant about Battistini.’’ Davis said, ‘‘He would not piss
on Mr. Battistini if he was on fire.’’ They told him in that
meeting that he was to screen out union applicants and after
he had screened them, ‘‘Kipp’’ of Wellstream was to review
them and approve them before he hired them. He was told
at that meeting with Davis that Clenny, Riley, and Battistini
were not to be hired because they were for the Union.
Kelly Battistini, the wife of Daniel Battistini testified as
follows: She is a human resource analyst with Panama City,
Florida. She handles all applications for the entire city. She
recruits applicants, briefly reviews the applications, sends
them to departments and maintains the applications. When
the various city departments, decide to fill a position, she
pulls the active applications and sends them to the depart-
ment for interviews. When the department decides to hire,
she checks their references by telephone utilizing forms ask-
ing for dates of employment, salary, work record, and reason
for leaving. Her husband, Daniel Battistini, has applied to
Panama City for various positions. As part of her duties she
checked the references of Daniel Battistini for a position he
applied for after his termination after checking with her su-
pervisor because of her relationship as Battistini’s wife. Her
supervisor told her to handle it. She telephoned Jack Russell
of B & S Electric for a reference and wrote down his re-
sponse on the reference form she uses for telephone ref-
erence checks. (G.C. Exh. 23.) The response of Russell rated
Daniel Battistini’s work as ‘‘very good’’ and gave as the rea-
son for his leaving, ‘‘Laid off,’’ and in answer to the inquiry
about whether he would reemploy Battistini, Russell stated,
‘‘Yes definitely if I had the opportunity.’’ There were no
other reasons given for Daniel Battistini leaving employment
with B & S Electric.
Daniel Battistini testified as follows: With respect to his
job with B & S Electric, he was laid off from this job on
November 29, 1991, by Frank Alsobrook who told him the
job was ending. When he was hired by B & S Electric he
was told the job would only last about 4 weeks. While he
worked at B & S, Thanksgiving was approaching and he and
his wife had made arrangements to visit her grandparents in
Tampa, Florida. He had worked at B & S about a week and
a week before Thanksgiving, he asked Frank Alsobrook, the
general foreman, if he could take a few days off for the
Thanksgiving weekend. Alsobrook told him he had no prob-
lem with this but on his return Alsobrook would tell him
whether he needed him anymore as the job was winding
down. When he returned Alsobrook said he didn’t need him
anymore and he was laid off on that Monday, November 29,
1991. He did not talk with Jack Russell concerning the
Thanksgiving trip or his layoff.
While Battistini was working at B & S Electric he saw
Parker and went into the Wellstream plant and said hello to
his former coworkers from Wellstream and had lunch and
took breaks with Parker. When he was hired by B & S noth-
ing was said about going into the plant. The next day, how-
ever, Alsobrook told him that no one on the jobsite could go
in the plant from then on and that he could not associate
with the Wellstream employees.
With respect to his job skills and ability while working at
Wellstream in November 1991, Battistini testified his quali-
fications as a maintenance employee at Wellstream ‘‘were as
good as any employee there and better than some.’’ As far
as tracking down wiring problems on the machinery he was
461WELLSTREAM CORP.
better than most and was also qualified to work on hydraulic
systems and pneumatic systems on the machinery, and to
work on facility repairs. He had a basic knowledge of elec-
tronics and traced the wiring down to the component level.
Herman Riley was the only official electronics technician. In
November 1991, he had more experience on the machinery
than James Snow, A. J. Roper, Bert Greer, Eric Clenny, and
Arsenio Bacani. James Snow was a helper at that time. Bert
Greer primarily worked on hydraulics. Bacani was the least
experienced maintenance employee in the department on the
equipment. Whenever Battistini worked on weekends or sec-
ond or third shift at Wellstream he worked unsupervised as
there was no supervisor on duty. He repaired equipment
when it broke down. Bacani worked as a trainee under him
from time to time. Battistini worked on all of the unique
equipment at Wellstream as required and helped build and
modify almost all of these machines. At the time of his testi-
mony he had helped build or modify more machines at
Wellstream than anyone except Supervisor James Wilson,
Herman, and Gerald Riley, and Parker. While at Wellstream
he performed pneumatic work, hydraulic work, mechanical
work, electrical work, and with respect to electronic work, he
would troubleshoot to an electronic component and change
that component out or bring it to Herman Riley for repair.
Gerald Riley could also troubleshoot to the components.
None of the other employees could do this. Battistini’s elec-
tronic skills were equal or above anyone of the other mainte-
nance personnel except Herman Riley who was the electronic
repairman and Gerald Riley.
Battistini testified further he was never advised of any at-
tendance problem at Wellstream although there was 1 day
when his vehicle broke down and he was unable to get to
work and called Allen Saap and the next day Saap told him
it should not have taken that long to change a brake line. On
one other occasion he took sick leave shortly before his mar-
riage and was counseled by Saap concerning this in May
1990. He was never written up for attendance problems.
The General Counsel introduced another appraisal of
Battistini that had been located and that was made on No-
vember 26, 1990, by James Wilson who rated Battistini as
excellent in four categories of job performance and good in
two categories of job performance. Wilson also commented,
‘‘Dan has gained a lot of experience in troubleshooting and
solving machine problems. He is always looking for a better
and cheaper way to accomplish his goal.’’
Analysis
In a backpay proceeding the General Counsel has the ini-
tial burden of going forward and demonstrating the employ-
ees’ right to reinstatement and calculating the amount of
backpay. In the underlying case the Respondent was ordered
to reinstate the discriminatee Battistini with backpay. The
Respondent has not reinstated the discriminatee. The General
Counsel has calculated the backpay due to the date of the
hearing in the backpay case held on July 27 and 28, 1995.
The Respondent does not dispute the calculations of backpay
with the exception of the issues concerning the general re-
duction in force in November 1991, and the alleged abandon-
ment of the job at B & S Construction by Battistini. The bur-
den of proof thus shifts to Respondent and the burden of
proof is a heavy one wherein any uncertainty concerning the
appropriate amount of backpay is to be weighed against the
wrongdoer Brown & Root, 311 F.2d 447 (8th Cir. 1963);
Colorado Forge Corp., 285 NLRB 530 (1987). In the instant
case I find that the Respondent has failed to meet its burden
of proof in rebutting the case established by the General
Counsel. Initially, assuming arguendo that a reduction in
force was in order for Respondent as a result of its economic
straits, Respondent admittedly did not consider Battistini for
retention as an employee as he had been terminated unlaw-
fully as found in the underlying case. Further as contended
by the General Counsel and counsel for the Charging Party
in their briefs, the most heavily hit area of Respondent’s op-
eration by the layoff was the maintenance department as
demonstrated by the layoff of three of the nine remaining
maintenance employees after the termination of Battistini.
Respondent contends that in any event it would have been
necessary to lay off four mechanics in the event that
Battistini had not been previously terminated. The evidence
established that the maintenance department was the most
heavily prounion department in the facility and was targeted
for a 40-percent reduction in force. As established by the tes-
timony of employee John Chris Parker and Watkins Engi-
neering former General Foreman John Sessions, which I
credit, this left a substantial gap in Respondent’s ability to
adequately perform maintenance work of the facility that re-
quired a high level of maintenance work as a result of the
unique nature of much of the equipment that must be modi-
fied to be utilized in the production of Respondent’s product.
To this end Respondent responded by bringing in Watkins
Engineering to perform the work that had formerly been han-
dled by Respondent’s maintenance department. I credit the
testimony of Sessions that Respondent utilized the outside
contractor to screen out prounion employees in continuation
of its unlawful campaign against the Union as found in the
underlying case and that Respondent made it abundantly
clear that Battistini was not welcome in the plant and that
he and other prounion employees were not to be hired. The
comments made by Respondent’s personnel manager, Davis,
as testified to by both Sessions and former personnel assist-
ant Barbara Callahan, both of whose testimony I credit in its
entirety, that Davis ‘‘would not piss on Battistini if he were
on fire’’ amply demonstrates the continuing hostility of Re-
spondent’s management toward Battistini and its determina-
tion that he would not return as an employee. Under these
circumstances it is clear and I find that Respondent has
wholly failed to show that it could have, would have, or did
consider Battistini for retention as an employee at the time
of the layoff. Further, I do not credit the testimony of
Marlow, Sapp, and Herman Riley concerning their low opin-
ion of Battistini’s capabilities as they were obviously tainted
by the same bias against Battistini that led to his unlawful
suspension and discharge initially. In this regard I find par-
ticularly noteworthy Marlowe and Sapp’s inability to specify
exactly what Battistini’s shortcomings were except for the
reasons put forward by Respondent in the underlying case
and found pretextual in that case. It is clear that Marlow and
Sapp harbor continued animus toward Battistini and were
pivotal in making the selection for layoff from the mainte-
nance department in conjunction with the Personnel Manager
Davis whose bias against Battistini and whose comments
concerning the union supporters in the maintenance depart-
ment make clear that he could not, would not, and did not
fairly consider Battistini for retention even in the absence of
462 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 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.
the unlawful suspension and discharge. With respect to the
testimony of Herman Riley it was clear that he was a reluc-
tant witness who is now in a leadership position and who felt
compelled to disparage Battistini’s capabilities. It was clear,
however, that he was not able to adequately compare the ca-
pabilities of all of the mechanics as he admittedly did not
work frequently with them and was unable to place their rel-
ative capabilities in the November 1991 timeframe. In the
case of Clenny, I found his position that Battistini would
have been one of the mechanics laid off as highly subjective
as are any of the comparisons made in this case absent spe-
cific evidence to support them. In the case of the testimony
by James Snow, John C. Parker, and Ricky Cranford, how-
ever, I found their testimony was supportedly by specific ob-
jective facts lending support to their testimony that Battistini
was a capable employee who should have been retained not-
withstanding the layoff and I credit their testimony. Each of
these employees sacrificed their own ego in contending that
Battistini should have been retained as a mechanic rather
than themselves in the layoff. Moreover I once again found
Battistini to be a credible witness who testified in a straight-
forward manner and did not attempt to embellish his testi-
mony but freely admitted his limitations with electronic
work. I have also considered the Respondent’s contentions
that the prounion employees who testified in this case were
disparaging the work of employee Arsenio Bacani because he
was the lone nonprounion advocate in the maintenance de-
partment. As counsel for the General Counsel points out in
her brief, however, Bacani was a relatively new employee
classified as a helper and earned significantly less than
Battistini who had rapidly advanced in pay to a permanent
position with excellent to good ratings by his supervisor,
James Wilson, following his hire by Respondent.
In summary I find that the Respondent has wholly failed
to demonstrate that it would have laid off Battistini in the
absence of his engagement in protected activities in the event
that he had not been previously unlawfully terminated. I find
that the taint of Respondent’s engagement in unfair labor
practices as well as the lack of credible testimony serving to
bolster its position fails to meet Respondent’s burden of
proof. Moreover the testimony of current employees Snow
and Parker who remain employed by Respondent as well as
Cranford whom I also credit, clearly demonstrates that Re-
spondent has failed to carry its burden of proof in this case.
At a minimum it is clear that there are significant doubts and
uncertainties remaining about whether Respondent would
have laid off Battistini in its reduction in force and those
doubts and uncertainties must be resolved against Respond-
ent as the wrongdoer in this case who created those doubts
by its unlawful suspension and discharge of Battistini, Fruin-
Colnon Corp., 244 NLRB 510, 512 (1979); Boland Marine
& Mfg. Co., 280 NLRB 454, 461 (1986); Chem Fab Corp.,
275 NLRB 21, 24 (1985).
With regard to the issue of Battistini’s alleged abandon-
ment of his job at B & S Electric, I find the Respondent has
also failed to establish that Battistini abandoned this job. I
credit Battistini’s unrebutted testimony that he apprised Fore-
man Alsobrook, who was not called by Respondent, that he
wished to leave town for Thanksgiving and did so with
Alsobrook’s acquiescence and was told by Alsobrook to
check to see if the job was still ongoing when he returned
and that on his return he was laid off by Alsobrook because
of lack of work. This testimony was also bolstered by
Clenny who testified that when he contacted the foreman
(Alsobrook) of this job, that he was told the job was finished
(winding down), and that Battistini had been laid off. I also
credit the unrebutted testimony of Battistini’s wife, Kelly
Battistini that when she contacted Russell (the owner of B
& S Electric) concerning a reference, that she was informed
that Battistini was laid off and was eligible for rehire. I find
that Russell’s testimony that Battistini had quit the job was
undoubtedly the result of a breakdown in communication
with his foreman, Alsobrook. I accordingly find that Re-
spondent has also failed to establish that Battistini willfully
abandoned this job so as to toll any of his backpay. Re-
spondent’s motion to file reply brief is granted and has been
read and considered as well as the General Counsel’s motion
to strike and argument contained therein.
CONCLUSIONS OF LAW
I find that the General Counsel has established the gross
backpay due Battistini to the date of the hearing and that the
Respondent has failed to establish its affirmative defenses
and that the backpay specification as amended correctly
states the backpay due Battistini as of the date of the back-
pay hearing.
I find that Respondent’s obligation as to backpay will be
discharged by its reinstatement of Battistini to his former po-
sition or to a substantially equivalent position with full se-
niority and all the rights and privileges derived therefrom as
set out in the underlying decision in this case and by the
payment of $53,994.38, which was the amount of backpay
due Battistini as of the time of the backpay hearing plus in-
terest as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), with interest as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987), with backpay and interest
continuing to accrue until the date Battistini is reinstated or
is offered reinstatement and refuses, minus any tax withhold-
ing required by Federal and state laws. Lord Jim’s, 277
NLRB 1514 (1998).
On the basis of the foregoing findings and conclusions,
and on the entire record, I issue the following recommended2
ORDER
The Respondent, Wellstream Corporation, its officers,
agents, successors, and assigns, shall satisfy its obligation by
reinstating Daniel Battistini to his former position with full
seniority and all the rights and privileges and benefits, with
interest as set out in the underlying decision in this proceed-
ing and by payment to him of backpay in the amount of
$53,994.38 as of July 27, 1995, the date of the backpay hear-
ing plus interest, with backpay and interest continuing to ac-
crue until such time as Respondent complies with the order
in the underlying decision by reinstating Battistini to his
former position or as of the time Battistini is offered rein-
statement and refuses reinstatement, plus interest as set forth
in the underlying decision and in the conclusions section of
this decision.