Smith International

National Labor Relations Board - Board Decisions

Mar 2, 1994

313 N.L.R.B. 964 (N.L.R.B. 1994)

964
313 NLRB No. 161
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.
2 We find it unnecessary to rely on the judge’s statement that the
Respondent denied Charging Party Rodney J. Ruiz an opportunity to
bump into the position of Jay Glowacki, a leg machine operator in
department 37, and junior in seniority to Ruiz. It is unclear whether
Glowacki held the leg machine operator position after the February
layoff was complete. Glowacki, at some point, left this position to
bump into the CNC lathe operator position. His employee data
record shows that Glowacki was moved on February 9, 1992, the
Monday following the February 7 layoff. The judge, however, cred-
ited Ruiz’ testimony that on February 12 Plant Manager Pat Mul-
ligan told Ruiz that the Respondent would discontinue the use of the
leg machine Glowacki was operating and would transfer Glowacki
to another department. This suggests that Glowacki had not yet
bumped into his new position. Nevertheless, we need not decide
whether, after the February 7 layoff, Glowacki held a position into
which Ruiz was entitled to bump, because we find, in agreement
with the judge, that the remaining evidence supports the judge’s con-
clusion that the Respondent unlawfully discriminated against Ruiz
during the February 7 layoff.
Smith International, Inc. and Rodney J. Ruiz. Cases
17–CA–15903, 17–CA–16029, and 17–CA–16381
March 2, 1994
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND TRUESDALE
On September 30, 1993, Administrative Law Judge
Irwin H. Socoloff issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and brief, and has decided to affirm the judge’s rul-
ings,1 findings,2 and conclusions and to adopt the
judge’s recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Smith International, Inc.,
Ponca City, Oklahoma, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
Richard C. Auslander, Esq., for the General Counsel.
Kristen L. Gordon, Esq. and Michael C. Redman, Esq., of
Tulsa, Oklahoma, for the Respondent.
DECISION
STATEMENT OF THE CASE
IRWIN H. SOCOLOFF, Administrative Law Judge. On
charges filed on November 12, 1991, and February 24 and
October 13, 1992, by Rodney J. Ruiz, an individual, against
Smith International, Inc. (the Respondent), the General Coun-
sel of the National Labor Relations Board, by the Regional
Director for Region 17, issued complaints dated April 7 and
November 18, 1992, alleging violations by Respondent of
Section 8(a)(4), (3), and (1) and Section 2(6) and (7) of the
National Labor Relations Act (the Act). Respondent, by its
answers, denied the commission of any unfair labor practices.
Pursuant to notice, trial was held before me in Ponca City,
Oklahoma, on June 10, 1992, and February 9, 1993, at which
the General Counsel and the Respondent were represented by
counsel and were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evi-
dence. Thereafter, the parties filed briefs which have been
duly considered.
On the entire record in these cases, and from my observa-
tions of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation having an office and place of
business in Ponca City, Oklahoma, is engaged in the manu-
facture of mining and petroleum drill bits. During the 12-
month period ending March 31, 1992, a representative pe-
riod, Respondent, in the course and conduct of its business
operations, purchased and received at its Ponca City facility
goods valued in excess of $50,000 directly from points lo-
cated outside the State of Oklahoma. In that same time pe-
riod, it shipped and sold from the Ponca City facility goods
valued in excess of $50,000 directly to points outside the
State. I find that Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
II. LABOR ORGANIZATION
United Automobile, Aerospace and Agricultural Implement
Workers of America (the Union) is a labor organization with-
in the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
Respondent’s Ponca City facility is its principal plant for
the manufacture of mining and petroleum drill bits within its
global organizational structure. It also operates such a plant
in Italy. Due to a continuing decrease in demand for its prod-
uct, Respondent’s manufacturing plants located in California
and in Mexico City were shut down in the 1980s and early
1990s.
Finding itself with an oversupply of inventory at Ponca
City and decreasing sales, Respondent, in November 1991,
decided to lay off both production and maintenance employ-
ees and salaried personnel. At that time, some 400 workers
were employed in hourly and production and maintenance
jobs.
Respondent effectuated a downsizing of operations on No-
vember 15, 1991, laying off 50 people, including a few sala-
ried workers. On December 13, another 50 production and
maintenance employees and salaried workers were laid off.
On February 7, 1992, a third layoff occurred, involving some
38 people. Thereafter, on March 27, 1992, five to seven sala-
ried engineers were laid off.
965SMITH INTERNATIONAL
1 The factfindings contained here are based on a composite of the
documentary and testimonial evidence introduced at trial. Where
necessary to do so, in order to resolve significant testimonial con-
flict, credibility resolutions have been set forth, infra. In general, I
have relied on the testimony of the Charging Party, Rodney J. Ruiz,
who impressed me as an honest and forthright witness in possession
of a clear recollection of events.
2 There are variations in the operation of the leg machines found
in each department, and the product differs from department to de-
partment.
3 CNC stands for computer numerically control. A CNC machine
operator runs one such machine. A CNC machinist operates two or
more machines simultaneously.
Among the production employees laid off on February 7,
1992, was Rodney J. Ruiz. During the 17-month period pre-
ceding his layoff, Ruiz had spearheaded an organizational
drive, on behalf of the Union, among Respondent’s hourly
workers. His activities in that regard were well known to Re-
spondent’s supervisors and its executive personnel.
In the instant cases, the General Counsel contends that Re-
spondent selected Ruiz for layoff in February 1992, and
failed to select him for temporary reemployment in Septem-
ber 1992, because of his union and other protected concerted
activities, and because he filed charges under the Act in vio-
lation of Section 8(a)(4), (3), and (1) of the Act. Respondent
asserts that its layoff and recall decisions were uninfluenced
by those matters. Also at issue is whether Respondent vio-
lated the Act by issuing to Ruiz, in September 1991, a per-
formance evaluation with low ratings, and by threats and
other statements addressed to Ruiz by first-line supervisors
and other officials in the months preceding his layoff.
B. Facts1
Ruiz went to work for Respondent on June 18, 1987, and
was assigned to operate a leg machine used in the production
of mining bits. Thereafter, he was trained to operate such a
machine used in the production of petroleum bits. Ruiz
worked as a leg machine operator in department 1, then de-
partment 37 and, finally, in department 17.2 Within depart-
ment 17, Ruiz was subsequently classified as a CNC ma-
chine operator and, on March 25, 1990, he was promoted to
the position of CNC machinist.3
In the fall of 1990, Ruiz obtained literature and authoriza-
tion cards from the Union. He distributed these items to fel-
low employees before and after work, during lunch and, also,
during break periods. His activities in that regard were ob-
served by Plant Manager Pat Mulligan, Personnel Director
Bill Werling, Department Manager Don Hisey, and First-
Line Supervisors Art Meyer and Wes Hill. The Company re-
sponded, later in the year, with a letter to employees setting
forth its views with regard to union representation. On re-
ceiving his copy of that letter, Ruiz went to Werling’s office
and asked him if Respondent would hold his, Ruiz’, union
activities against him. According to Ruiz, Werling responded,
stating that ‘‘you were the one that started it by bringing
those union cards in this shop.’’ Ruiz further testified that,
some months later, he brought to Werling’s attention the fact
that his tools had been vandalized and threats had been di-
rected against him. Werling again stated that Ruiz was the
one who had started it. Werling, in his testimony, specifically
did not deny Ruiz’ account of the foregoing conversations
and, thus, Ruiz’ testimony in these regards is substantially
uncontradicted and is credited.
In January 1991, Respondent instituted, on a one-time
basis, what it termed an ‘‘equity adjustment’’ of the wage
rates paid to hourly employees. This was designed to raise
the hourly rates of productive employees who were at the
lower end of the pay scale. As a result, Ruiz received a 38-
cent- or 42-cent-per-hour wage increase. Dissatisfied with
that amount, he approached the plant manager, Pat Mulligan,
and asked him why he, Ruiz, had not received more. Mul-
ligan stated that the employee had not been there long
enough to warrant a larger increase. Ruiz asked if it was be-
cause of his union activities, and Mulligan did not respond.
According to Ruiz’ uncontradicted and credited testimony,
Mulligan thereafter stated that, if Ruiz was so unhappy work-
ing there, he was entitled to leave.
Sometime after this conversation, Ruiz conducted a wage
survey of and among 10 of the hourly paid employees. He
testified that he conducted the survey to help him plead his
own case and, also, in order to show other employees ‘‘how
the wages that were paid for the jobs being performed were
way off balance.’’ Ultimately, the survey results were shown
to Ruiz’ supervisor only. Also, in July, Ruiz filed a com-
plaint with the Oklahoma State Labor Board, charging that
Respondent was harassing him because of his union activi-
ties.
In August 1991, Ruiz approached his immediate superior,
Wes Hill, an acknowledged statutory supervisor. Ruiz told
Hill about the wage survey which, in Ruiz’ view, showed
that Respondent was discriminating against him and, also,
about the complaint filed with the State Labor Board. Ruiz
stated that Respondent was harassing him because of his
union activities. According to the uncontradicted and credited
testimony of Ruiz, Hill responded, stating that he, Hill, knew
that some members of management held Ruiz’ union activi-
ties against him. Hill told the employee that he had been in
supervisors’ meetings at which Ruiz was the main topic of
conversation. Ruiz asked if the conversation with Hill would
be held against him. Hill assured Ruiz that the conversation
would remain between the two of them.
On or about September 20, Hill gave Ruiz a copy of the
employee’s performance appraisal, which had been filled out
by Hill, and the two of them discussed it, item by item. With
respect to category 4(c), ‘‘Handling Information with Discre-
tion (pay, rumors, personal information, etc.),’’ Hill gave
Ruiz one point, the lowest numerical rating, and, according
to Ruiz’ testimony, Hill circled the word ‘‘pay’’ on the em-
ployee’s copy of the appraisal. Hill also gave to Ruiz a low
numerical rating in category 4(b), ‘‘Attitude toward Com-
pany and Department.’’ Ruiz testified that he asked Hill what
the one-point rating in category 4(c) was about, and Hill stat-
ed that it was because of the wage survey. When Ruiz re-
minded Hill that he had agreed not to hold that matter
against him, Hill said, ‘‘but I guess I did anyway.’’ Ruiz
stated that he supposed that the poor rating with respect to
attitude was because he had filed charges with the State
Labor Board. Hill replied that, that was right, that Ruiz
thinks that the Company is out to get him and that that is
a bad attitude. Ruiz stated that he knew he had a right to
discuss wages and benefits. Hill responded, saying that that
was so only if such discussions were not against company
policy. Hill further stated that it was a violation of confiden-
966 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tiality requirements to discuss those matters with anyone not
in management.
Hill, in his testimony, denied that he circled the word
‘‘pay’’ on the employee’s copy of the appraisal. According
to Hill, Ruiz was an average worker and his overall point
total for the evaluation, 32, placed him in the average, or sat-
isfactory, category. Hill further testified that Ruiz’ low score
on the category 4, attitude, cooperation, and teamwork, items
reflected the fact that Hill had received complaints from
other employees that Ruiz did not leave his machine in prop-
er condition, displayed a lack of teamwork, and polled and
surveyed fellow employees with respect to their opinions on
various issues. Hill further testified, regarding Ruiz, that ‘‘his
attitude was always negative against everyone, the company,
other employees. He showed no cooperation, no teamwork.
Anything that was ever said that should have been confiden-
tial immediately was told to everyone. He constantly asked
everyone how their job reviews were.’’ Hill added that Ruiz
constantly disparaged the Company, talked about how the
Company was discriminating against him, and stirred up ru-
mors.
At one point in his testimony, Hill stated that neither
union activities nor the fact that Ruiz engaged in discussion
of wages with other employees was a factor in the Ruiz eval-
uation or caused a loss of points. However, at another point,
he testified that he knew that Ruiz was discussing the subject
of wages with other employees and that ‘‘that was one of the
factors that I was looking at’’ in preparing the Ruiz evalua-
tion. Hill further testified that he explained to Ruiz that he,
Hill, rated Ruiz the way he did ‘‘because of his negative
views, because of him constantly discussing wages with ev-
eryone, just generally being negative towards everyone and
the company.’’
As previously noted, I found Ruiz to be a truthful witness,
and I credit his account of the September 20 conversation
with Hill concerning the evaluation. Indeed, very significant
portions of his testimony were not disputed. On the other
hand, Hill’s testimony was self-contradictory concerning crit-
ical matters and, to the extent it varies from Ruiz’ descrip-
tion of the September 20 event, it is not credited, I find that
the September 20 conversation occurred substantially as de-
scribed by Ruiz.
According to Ruiz’ uncontradicted testimony, on the next
day, September 21, he approached the department manager,
Don Hisey, a statutory supervisor, to discuss the appraisal.
Ruiz asked about the confidentiality matter, and Hisey re-
sponded, pointing to the wage survey.
On September 22, Ruiz went to see the personnel director,
Bill Werling, and told him that he, Ruiz, felt that portions
of the appraisal were unfair. Werling, according to Ruiz, re-
sponded by telling the employee that he, Werling, once
found himself working at a job which made him unhappy
and, therefore, he quit that job, which made him feel good.
He told Ruiz that, if working for Respondent made him un-
happy, perhaps it would be better just to leave. Werling
added that he felt that Ruiz was a person who thrived on
conflict. As Ruiz was leaving, he told Werling that he felt
that he, Werling, still held Ruiz’ union activities against him.
Werling told the employee that he needed to redirect his en-
ergies in a more positive direction, and further stated that
Ruiz was the one who had started it.
Werling, in his testimony, confirmed the fact that Ruiz ap-
proached him concerning the fairness of the evaluation and
that, during the conversation, he, Werling, told the employee
that, in a previous job, he became dissatisfied and left.
Werling denied telling Ruiz to quit his job if he did not like
it, or stating to the employee that he perceived Ruiz as one
who thrives on conflict.
On the next day, Ruiz approached the plant manager, Pat
Mulligan, concerning the evaluation. As Ruiz began to speak,
Mulligan asked, well, ‘‘what did Werling say?’’ Ruiz replied,
stating that he had not obtained an answer from Werling and,
further, that he felt that Werling still held his union activities
against him. Ruiz testified that Mulligan then stated, ‘‘and
rightfully so . . . I’m not very happy about it either.’’ Mul-
ligan, in his testimony, denied that he ever told Ruiz or any
other employees that their union activities would be held
against them or would result in adverse treatment.
Ruiz, in his testimony, set forth a detailed and believable
account of his late September conversations with Werling
and Mulligan. I have credited his version of those conversa-
tions and rejected the vague account offered by Werling and
the general denial by Mulligan. In reaching these conclu-
sions, I have also relied on my observation of the demeanor
of Werling and Mulligan as witnesses—neither of them ap-
peared to me to be attempting truthfully to set forth their full
recollection of the conversations in question.
Employee Melvin Osborne, who had assisted Ruiz in so-
liciting the signatures of hourly employees on union author-
ization cards, testified that, on November 11, he brought to
work, and left laying on his bench, charges to be filed with
the National Labor Relations Board. Statutory Supervisor
John Stout picked up the charges, and started reading them,
before Osborne took them back, and an argument ensued.
The next day, Stout told Osborne that he had told Osborne’s
buddy, Ruiz, to stay out of the department. A few days later,
Osborne testified, Stout told him that, as far as he, Stout, was
concerned, Ruiz was history. Stout, in his testimony, stated
that he had not told Osborne that Ruiz was history but, rath-
er, that Ruiz’ Union was history.
At the time of the December 1991 layoff, Ruiz was of-
fered the choice of accepting a voluntary layoff or bumping
back, within December 17, to the lower classification job, leg
machine operator, he had previously held. Ruiz chose the
bump back option. Fellow department 17 CNC machinist
Mark Martin, who was senior to Ruiz, retained his CNC ma-
chinist position. Shortly thereafter, Ruiz, pursuant to instruc-
tion, began to train Martin in the operation of the leg ma-
chine. Martin, theretofore, had not, at any time, held the leg
machine operator position or been classified as a leg machine
operator.
On February 7, 1992, Respondent effectuated its third
round of employee layoffs. On that day, Ruiz was summoned
to appear in the office of the department manager, Don
Hisey, who informed the employee that he was being laid off
due to poor business conditions. As Ruiz left Hisey’s office,
he testified, he was followed to the door leading out of the
plant by the manufacturing manager, Ike Arnold, and by four
or five first-line supervisors. Ruiz testified that he asked
them why they were all there, and that Arnold answered that
they expected trouble. Arnold, in his testimony, stated that,
while he observed Ruiz leaving, he did not escort him to the
door and did not speak to the employee. Arnold further testi-
967SMITH INTERNATIONAL
4 Mulligan, in his testimony, described the criteria as: (1) plant se-
niority by classification, (2) plant seniority by department, and (3)
capability.
5 As indicated, the complaints allege that Respndent laid off Ruiz
and refused to reemploy him, because he filed charges with the
Board in violation of Sec. 8(a)(4) of the Act. As there is a lack of
record evidence in support of those allegations, they must be dis-
missed.
fied that there was not a concerted effort to escort Ruiz out
of the building.
Ruiz returned to Respondent’s offices later that day and
met with Arnold and others of Respondent’s officials. The
employee stated that he felt he wrongfully had been laid off
as there were employees retained who had less seniority and
less ability and who had not held the classifications held by
Ruiz. Arnold said that he would look into the matter, which
would take time and, if a mistake was made, he would cor-
rect it. He told Ruiz that the criteria used for layoff were:
(1) seniority, (2) ability to do the job, and (3) classification
by department.4
There is substantial record evidence that Respondent per-
mits employees faced with layoff to remain employed by
bumping back to previously held lower classification posi-
tions, for which they are qualified, provided they have suffi-
cient seniority to do so. As noted, this option was given to
Ruiz at the time of the December 1991 layoff. The option
was made available to other employees, but not to Ruiz at
the time of the February 7 layoff. In this connection, Arnold
testified, employees were permitted to use their bumping
rights to claim classifications in departments other than the
departments they were working in at the time of the layoff.
As part of its February 7 action, Respondent laid off the
two leg machine operators in department 17, Ruiz and the
more junior Eric Page. Mark Martin, a CNC machinist in de-
partment 17, who, as noted, was trained to operate the leg
machine by Ruiz in the days preceding the layoff, was per-
mitted to bump into a leg machine operator position in that
department. This, despite uncontradicted record evidence
that, theretofore, Respondent had not permitted employees to
bump into positions not previously held.
Among the employees unaffected by the February 7 layoff
were George Falkenberg, a leg machine operator in depart-
ment 7, and Jay Glowacki, a leg machine operator in depart-
ment 37, both junior to Ruiz. Ruiz was not permitted to
bump into their positions despite Respondent’s willingness to
allow other employees to transfer to new departments in
order to exercise their bumping rights.
On February 12, 1992, Ruiz met with Mulligan and Ar-
nold. The employee stated that the layoff policy, as explained
to him, was not used in his case. Ruiz stated that Mark Mar-
tin is now doing ‘‘my job’’ and he had not ever held the leg
machine operator classification. Mulligan stated that Re-
spondent would utilize people where it would do the most
good for the Company. Ruiz mentioned Glowacki, stating
that he had trained him on his machine and that he, Ruiz,
had greater seniority than Glowacki. Mulligan said that Re-
spondent would discontinue use of Glowacki’s leg machine,
and he would be transferred to another department. When
Ruiz asked why he was not allowed to transfer to another
department, Mulligan said that Respondent was not allowing
transfers between departments. Ruiz pointed to Wally Spears,
a CNC machinist allowed to transfer from department 17 to
department 31, but Mulligan did not respond. Ruiz also
asked why Respondent had retained Falkenberg as a leg ma-
chine operator in department 7, rather than allow Ruiz to
bump into the position, despite the fact that Falkenberg was
junior to Ruiz, and Ruiz had trained him in the operation of
his machine. Mulligan stated that Falkenberg was in a de-
partment other than Ruiz’ department, and Ruiz could not
transfer there.
Both Mulligan and Arnold, in their respective testimony,
denied that Ruiz’ union activities played any role in his se-
lection for layoff. However, neither offered an explanation as
to why Respondent, in apparent disregard of its own policies
and practices, permitted Martin to bump into Ruiz’ leg ma-
chine operator position and, then, did not afford Ruiz the op-
portunity to bump into the positions of more junior operators
via departmental transfer.
In September and October 1992, Respondent brought back
to work, as temporary employees, a substantial number of
laid-off machine operators. This was done, Mulligan testified,
in order to meet a temporary ‘‘spike in production’’ require-
ments, and the employees brought back received wages only
and not benefits. However, Mulligan further testified, in De-
cember, Respondent decided to grant medical benefits to
them as well as Christmas holiday time. In January and Feb-
ruary 1993, Respondent began to terminate these positions.
In explanation of Respondent’s failure to offer one of the
temporary positions to Ruiz, Mulligan testified that, under
company policies, as set forth in the employee handbook,
laid-off employees have recall rights for 90 days only from
the date of layoff. After that period, Respondent may offer
positions to whomever it wishes. Indeed, in bringing back
employees laid off in November 1991, December 1991, and
February 1992 and placing them in temporary positions, Re-
spondent did not assign them, necessarily, to their former de-
partments.
At the time Respondent offered temporary positions to cer-
tain of the laid-off hourly machine operators, the recall rights
of all of them, including Ruiz, under Respondent’s policies,
had expired. Yet, Respondent has offered no explanation of
why it offered positions to many of the laid-off workers and
not to Ruiz. The record evidence shows that, in department
17, machine operators Jim LaBlue, Reggie Getman, and Ted
McKee, all junior to Ruiz, and all laid off from their posi-
tions in department 17 in December 1991 prior to the Ruiz
layoff were returned to their former department. LaBlue was
assigned to operate the same leg machine run by Ruiz at the
time of his layoff. Getman and McKee ran CNC machines
previously operated by Ruiz.
C. Conclusions5
As shown in the statement of facts, in August 1991, Su-
pervisor Hill told Ruiz that he, Hill, knew that some mem-
bers of management held Ruiz’ union activities against him.
Hill further stated that he had been in supervisors’ meetings
at which Ruiz was the main topic of conversation. I conclude
that, by the foregoing remarks by Hill, Respondent impliedly
threatened Ruiz with retaliation because of his union activi-
ties in violation of Section 8(a)(1) of the Act.
On or about September 20, 1991, Hill told Ruiz that he
had received a low point total in certain areas of his evalua-
968 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 See Heck’s, Inc., 293 NLRB 1111, 1119 (1989).
tion, because he had conducted a wage survey among his fel-
low employees. Hill further stated that it was a violation of
Respondent’s confidentiality requirements to discuss such
matters with anyone not in management. By so informing
Ruiz that he had been penalized for having engaged in pro-
tected concerted activities, and by so prohibiting him from
engaging in the protected conduct of discussing wages with
fellow employees, Respondent, by Hill, further violated Sec-
tion 8(a)(1) of the Act.6
A few days later, Ruiz met with Personnel Director
Werling, who, a year earlier, had told Ruiz that he was ‘‘the
one that started it by bringing those union cards in this
shop.’’ This time, Werling told Ruiz that, if working for Re-
spondent made him unhappy, perhaps it would be better if
he just left. When Ruiz stated that he felt that Werling still
held his union activities against him, Werling told the em-
ployee that he was the one who had started it, and that he
needed to redirect his energies in a more positive direction.
By so encouraging Ruiz to quit his employment because of
his union activities, and informing the employee that Re-
spondent held his union activities against him, Respondent,
by Werling, engaged in additional violations of Section
8(a)(1) of the Act.
On the next day, when Ruiz advised Plant Manager
Mullingan that he, Ruiz, felt that Werling still held Ruiz’
union activities against him, Mulligan replied: ‘‘And right-
fully so. I’m not very happy about it either.’’ By the fore-
going statement, Respondent, by Mulligan, violated Section
8(a)(1) of the Act by again telling Ruiz that Respondent held
his union activities against him.
The credited testimony of Ruiz shows that, on or about
September 20, 1991, Hill told Ruiz that the low ratings con-
tained in his evaluation, in the attitude, cooperation, and
teamwork section, were the result of Ruiz’ protected con-
certed activities, including the discussion of wages with his
fellow employees. Indeed, Hill’s own testimony reveals that
Ruiz’ activities in that regard ‘‘was one of the factors I was
looking at’’ in preparing the evaluation. Werling, in discuss-
ing the evaluation with Ruiz, reminded the employee that he
was ‘‘the one who had started it,’’ that is, engaged in activi-
ties on behalf of the Union. In light of this evidence, I con-
clude that Respondent, in September 1991, issued to Ruiz a
performance evaluation with low ratings because the em-
ployee had engaged in union and other protected concerted
activities in violation of Section 8(a)(3) and (1) of the Act.
On February 7, 1992, Ruiz was selected for layoff. In es-
tablishing a prima facie case of unlawful discharge under the
Act, the General Counsel has shown that, at the time of the
layoff, Respondent was well aware of Ruiz’ extensive activi-
ties on behalf of the Union, and other protected concerted ac-
tivities, and had, repeatedly, over an 18-month period, by its
highest officials and its first-line supervisors, expressed its
extreme displeasure concerning those activities.
Respondent has not shown that Ruiz would have been se-
lected for layoff even absent the protected conduct. Indeed,
although Respondent has set forth its general layoff criteria
(plant seniority by classification, plant seniority by depart-
ment, and capability), it has not explained how the workings
of its layoff policies resulted in the selection of Ruiz. To the
contrary, there is substantial record evidence that the selec-
tion of this employee for layoff occurred because Respondent
refused to apply established layoff policies in his case. Thus,
Mark Martin, trained by Ruiz in the weeks preceding the lay-
off to run the leg machine in department 17, was permitted
to bump into that position and displace Ruiz, despite the fact
that Martin had never held the position, contrary to existing
policies and practices. Ruiz was not permitted to bump into
leg machine operator jobs held by junior employees, trained
by Ruiz in the operation of their equipment, because its on-
site chief executive officer, Mulligan, told him that Respond-
ent was not allowing transfers between departments. Yet, it
permitted other employees to do just that and, thereby, to
avoid layoff.
In light of Ruiz’ extensive union activities and other pro-
tected conduct, Respondent’s knowledge of same and dem-
onstrated antipathy thereto, the failure of Respondent to show
how legitimate and neutral application of its established lay-
off policies resulted in the selection of Ruiz, and Respond-
ent’s disparate application of its policies and procedures con-
cerning bumping, I conclude that Ruiz was selected for lay-
off in retaliation for his union and other protected activities.
By laying off Ruiz, on February 7, 1992, Respondent vio-
lated Section 8(a)(3) and (1) of the Act.
I am also of the view that the failure to offer to Ruiz, in
September and October 1992, one of the temporary recall po-
sitions was violative of Section 8(a)(3) and (1) of the Act.
Having laid off Ruiz, for discriminatory reasons, in February,
Respondent, in the fall of 1992, chose to offer temporary ma-
chine operator positions in Ruiz’ former department 17 to
junior operators who had been laid off prior to Ruiz. They
were assigned to operate the machines previously run by
Ruiz. Additional operators were brought in and assigned to
departments other than the departments where they had pre-
viously worked. In explaining why Ruiz was not offered a
position, Mulligan testified only that his recall rights had ex-
pired. However, this was also true of every employee
brought back.
As Respondent has failed to show that, absent his union
and other protected activities, it still would not have offered
to Ruiz one of the temporary positions and, as the record
evidence so strongly shows the contrary to be true, I con-
clude that, in the fall of 1992, Respondent again discrimi-
nated against Ruiz in regard to hire and tenure of employ-
ment because of his activities on behalf of the Union and
other protected conduct.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of Respondent set forth in section III, above,
occurring in connection with its operations described in sec-
tion I, above, have a close, intimate, and substantial relation-
ship to trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practice conduct in violation of Section 8(a)(3) and
(1) of the Act, I shall recommend that it be ordered to cease
and desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act.
969SMITH INTERNATIONAL
7 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.
8 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.’’
CONCLUSIONS OF LAW
1. Smith International, Inc. is an employer engaged in
commerce, and in operations affecting commerce, within the
meaning of Section 2(2), (6), and (7) of the Act.
2. United Automobile, Aerospace and Agricultural Imple-
ment Workers of America is a labor organization within the
meaning of Section 2(5) of the Act.
3. By issuing a performance evaluation with low ratings
and laying off and refusing to recall Rodney J. Ruiz, because
of his union and other protected concerted activities, Re-
spondent has engaged in unfair labor practice conduct within
the meaning of Section 8(a)(3) and (1) of the Act.
4. By threatening employees with retaliation because of
their union activities, prohibiting employees from discussing
their wages and informing them that they had been penalized
for having done so, encouraging employees to quit their em-
ployment because of their union and other protected con-
certed activities, and telling employees that it held their
union activities against them, Respondent has engaged in un-
fair labor practice conduct within the meaning of Section
8(a)(1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. Respondent has not otherwise violated the Act, as al-
leged in the complaints.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended7
ORDER
The Respondent, Smith International, Inc., Ponca City,
Oklahoma, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Issuing performance evaluations with low ratings to
employees and laying off and refusing to recall employees,
because of their union activities or other concerted activities
protected by Section 7 of the Act.
(b) Threatening employees with retaliation because of their
union activities, prohibiting employees from engaging in the
protected concerted activity of discussing their wages and in-
forming them that they have been penalized for having done
so, encouraging employees to quit their employment because
of their union and other protected concerted activities, and
telling employees that it holds their union activities against
them.
(c) 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) Offer to Rodney J. Ruiz immediate and full reinstate-
ment to his former position or, if that position no longer ex-
ists, to a substantially equivalent position, without prejudice
to his seniority or other rights or privileges.
(b) Reevaluate Rodney J. Ruiz and ensure that the reevalu-
ation is untainted by the events giving rise to this proceed-
ing.
(c) Make Rodney J. Ruiz whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against him. Backpay shall be computed 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).
(d) Expunge from its files any reference to the September
20, 1991 evaluation and the February 7, 1992 layoff of Ruiz
and notify Rodney J. Ruiz, in writing, that this has been
done.
(e) 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.
(f) Post at its Ponca City, Oklahoma facility copies of the
attached notice marked ‘‘Appendix.’’8 Copies of the notice,
on forms provided by the Regional Director for Region 17,
after being duly signed by Respondent’s representative, shall
be posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(g) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT issue performance evaluations with low rat-
ings to employees or lay them off and refuse to recall them,
because of their union activities or other protected concerted
activities.
WE WILL NOT threaten employees with retaliation because
of their union activities, prohibit employees from discussing
their wages or inform them that they have been penalized for
having done so, encourage employees to quit their employ-
ment because of their union and other protected concerted
activities, or tell employees that we hold their union activi-
ties against them.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL reevaluate employee Rodney J. Ruiz and ensure
that the reevaluation is untainted by the events giving rise to
this proceeding.
970 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL offer to Rodney J. Ruiz immediate and full rein-
statement to his former position or, if that position no longer
exists, to a substantially equivalent position, without preju-
dice to his seniority or any other rights or privileges and WE
WILL make him whole for any loss of earnings and other
benefits resulting from the discrimination against him, less
any net interim earnings, plus interest.
WE WILL expunge from our files any reference to the Sep-
tember 20, 1991 evaluation and the February 7, 1992 layoff
of Ruiz and notify Rodney J. Ruiz, in writing, that this has
been done.
SMITH INTERNATIONAL, INC.