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344 DECISIONS OF NATIONAL LABOR RELATIONS BOARDInternational Business Machines Corporation and Al-

bert D. Tencza. Case 3-CA-5004October 25, 1974

DECISION AND ORDERBY CHAIRMAN MILLER AND MEMBERS FANNING AND

PENELLO

On June 17, 1974, Administrative Law JudgeThomas D. Johnston issued the altached Decision inthis proceeding. Thereafter, the General Counsel andthe Charging Party filed exceptions and supportingbriefs and the Respondent filed cross-exceptions anda supporting brief.

Pursuant to the provisions of Section 3(b) of theNational Labor Relations. Act, as amended,-the Na-tional Labor Relations Board has delegated its au-thority in this proceeding to a three-member panel.

The Board has considered the record- and the at-tached Decision in light of the exceptions and briefsand has decided to affirm the rulings, findings,' andconclusions 2 of the Administrative Law Judge andto adopt his recommended Order.

ORDER

Pursuant to Section 10(c) of the National LaborRelations Act, as amended, the National Labor Re-lations Board adopts as its Order the recommendedOrder of the Administrative Law Judge and herebyorders that the complaint be, and it hereby is, dis-missed in its entirety.

i The Charging Party has excepted to certain credibility findings made bythe Administrative Law Judge It is the Board's established policy not tooverrule an Administrative Law Judge's resolutions with respect to credibili-ty unless the clear preponderance of all of the relevant evidence convincesus that the resolutions are incorrect Standard Dry Wall Products, Inc, 91NLRB 544 (1950), enfd. 188 F 2d 362 (CA 3, 1951) We have carefullyexamined the record and find no basis for reversing his findings . In addi-tion, we deny the Charging Party's motion to reopen the record inasmuch asit only addresses itself to a limited aspect of the Administrative Law Judge'scredibility resolutions.

2 The General Counsel and Charging Party contend that Tencza was dis-charged in part for engaging in protected concerted activity which consistedof discussions with Respondent which potentially could have led to finan-cial benefits for Tencza and Ogden. We disagree . The record establishesthat the discussions between Tencza and his manager at the Endicott facili-ty, which Respondent found to be instances of Tencza 's requiring excessiveuse of management time, dealt repeatedly with holography in general andthe technical and economic questions which prompted Respondent to ter-mmate research work at the Endicott facility in this general area of optics insummer 1971. The record also makes clear that these instances of "excessivemanagement time" did not involve any direct efforts by Tencza to affect thedecision by Respondent 's patent office to reopen , publish, or file for a pat-ent for Tencza's and Ogden's invention disclosure . In addition, these discus-sions dealt neither with Tencza's demonstrations of the step -and-continueprocess nor his requests to present and demonstrate this work elsewhere.

We therefore find that these discussions with the Endicott managementconcerning holography were so remotely related to the achievement of orconsideration for financial benefits for Tencza and Ogden that they do not

constitute "concerted activities for the purpose of mutual aid or protection"within the meaning of the Act. Thus , we find , in agreement with the Admin-istrative Law Judge , that Tencza was term inated for reasons wholly unrelat-ed to concerted protected activitiy.

DECISIONSTATEMENT OF THE CASE

THOMAS D. JOHNSTON , Administrative Law Judge: Thiscase was heard at Binghamton, New York, on March 5through 8 and 26 , 1974, pursuant to an amended charge'filed on June 8, 1973, by Albert D. Tencza, an individual,and a complaint issued on December 26, 1973.

The complaint , amended at the hearing, alleged that In-ternational Business Machines Corporation (herein re-ferred to as the Respondent) violated Section 8(a)(1) of theNational Labor Relations Act, as amended (herein referredto as the Act), by discriminatorily discharging Albert Tenc-za and refusing to reinstate him because he had engaged inconcerted activities for the purpose of collective bargainingor mutual aid or protection.Respondent in its answer filed on February 11, 1974,denied having violated the Act asserting as its defensesTencza was discharged for cause and had also engaged inconduct of a nature sufficient to bar reinstatement . 3

The issue involved is whether Respondent violated Sec-tion 8(a)(1) of the Act by discriminatorily discharging anddenying reinstatement to Tencza because of his protectedconcerted activities.

The parties at the hearing were afforded full opportunityto introduce relevant evidence , to examine and cross-exam-ine witnesses , to argue orally on the record, and to submitbriefs.

Upon the entire record 4 in this case and from my obser-vation of the witnesses and after due consideration of thebriefs filed by the General Counsel 5 and the , Respondent,'I hereby make the following:

i The original charge was filed on August 14, 19722 General Counsel in response to Administrative Law Judge Arthur Leff's

pretrial order described the general nature of the concerted activities as"attempts by Tencza, on behalf of himself , and a co-inventor , George DeanOgden , to obtain recognition from Respondent for a process entitled, `Stepand Continue Holographic Exposure System,' which process was developedby Tencza and Ogden . Such recognition could have resulted in `points'which counted toward financial benefits for Tencza and Ogden."

3 An additional defense raised in its answer that the charge was untimelyfiled was rejected at the hearing.

4 Both General Counsel and Respondent filed motions to correct the re-cord and with the exception of one correction proposed by the GeneralCounsel which was objected to by Respondent these motions were unop-posed Having considered these motions and the objection these motionsare hereby granted except for the proposed correction by General Counselwhich Respondent opposed It should be noted General Counsel inadver-tently proposed a correction on p 735, 1 . 25, which should have been on p.736, I. 25, and Respondent inadvertently proposed a correction on p. 635, 1.25, which should have been on p 634, 1. 25.

5 Respondent's motion to strike General Counsel's beef, which was op-posed by the General Counsel , is hereby denied

6 The Charging Party did not submit a beef

214 NLRB No. 54

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INTL. BUSINESS MACHINES CORP. 34FINDINGS OF FACT

1. THE BUSINESS OF THE RESPONDENT

Respondent, a corporation licensed to do business in theState of New York, with its principal office and place ofbusiness located at North Castle, New York, is engaged inthe business of maintaining and operating facilities at vari-ous locations throughout the United States including Endi-cott, New York, where it is engaged in the manufacture,sale, and distribution of data processing equipment andrelated products.During the 12-month period preceding December 26,1973, Respondent in the course of its operations manufac-tured, sold, and distributed at its North Castle and Endi-cott facilities products valued in excess of $50,000 whichwere shipped directly from those facilities to states locatedoutside the State of New York.Respondent admits, and I find, that it is an employerengaged in commerce within the meaning of Section 2(6)and (7) of the Act.

IL THE ALLEGED UNFAIR LABOR PRACTICES

A. Background and Events Preceding Tencza's TerminationAlbert Tencza was employed at Respondent's Endicott,New York, plant as an engineer-physicist from about Au-gust 1966 until his termination on February 17, 1972. Pre-viously he had been employed by Respondent as a fieldengineer at its Patterson, New Jersey, facility while contin-uing his education.Tencza along with Dean Ogden who held the position oftechnician, senior lab specialist, worked in the manufactur-ing research department until about June 12, 1971, whenthey were transferred to the process engineering depart-ment under the supervision of Development Engineer andManager Ronald Myers. Tencza, except for the periodfrom about August 31, 1971, until about November 1971when he worked under the temporary supervision of De-velopment Engineer Manager Jack McCreary, worked un-der Myers' supervision until his termination.During the period Tencza and Ogden worked in themanufacturing research department and for a short periodafter being transferred to the process engineering depart-ment they had worked together spending a majority oftheir time on holography work.About August 4, 1971, as a result of such work which

was only a part of their holography work, they filed aninvention disclosure with Respondent entitled "Step andContinue Holographic Exposure System." The inventiondisclosure, in part, described their invention as "A holo-graphic exposure system has been constructed which per-mits projecting circuit patterns over large fields." Follow-ing its filing no corrections or additions were submitted bythem to Respondent's patent department which evaluatedit. Tencza, when questioned whether he had done any cam-paigning with respect to the invention disclosure, whilefirst stating he had talked to other persons, when pressed asto their identities, concluded by saying he had only had it

signed as required.Under Respondent's Invention Achievement AwarPlan inventors and coinventors are entitled to receiv"points" for their invention disclosures where Respondenapproves them and patent applications are filed or pubfished. Upon acquiring a sufficient number of points theare entitled to receive cash awards. Both Tencza and Ogden had worked together on inventions disclosures and hareceived "points" under the award plan and Tencza in addition had received a cash award.On January 28, 1972, Ogden and Tencza after being notified orally were informed by memorandum from PatenAttorney Kenneth Johnson their invention disclosure othe "Step and Continue Holographic Exposure Systemhad been reviewed and was being closed 7 because therwas no present technical support for the invention. Thmemorandum also stated the proposal had left unanswerecertain technical problems and mentioned if facts showea renewed interest they should notify the patent department. Senior Engineer Joseph Kirk and Staff PhysiciJames Bupp who performed the technical evaluations othe invention disclosure and submitted them to Patent Atorney Johnson confirmed the existence of these unresolved technical problems.Tencza acknowledged he did not protest or seek reconsideration of the decision. YPrior to submitting their invention disclosure Tenczand Ogden participated in several demonstrations at whicthe step and continue process was demonstrated. One demonstration occurred about April or May 1971 when a technical review committee comprised of ' seven members, including Manager Myers, met for the purpose of determining whether holography had any merit as a projectioprinting technique. On May 25, 1971, the committee's audit report recommended that holographic projection prining was not an appropriate technology for the C program;the holography effort pursued by the department should bdiscontinued; and the eventual value of holography projection printing could not be determined at that time. "Another demonstration, the date of which was not established,9 was given by Tencza and Ogden for Manager Wiliams for the purpose of determining whether the step ancontinue process was--applicable to'the C project. According to Ronald Doyle, who was the assistant general manaer for circuit packaging operations, this demonstration resulted from Tencza's contention the step and continue process could be used in the C3 project. Tencza whacknowledged talking to Doyle about the application oholograpuld not recall the circumstances under whiche wa-s-asked to make the presentation.Williams stated as a result of this demonstration he hainstructed Tencza to present him with an economic propoal to assure him the laser power or the resist could be mad

7 A l t h o u g h i n v e n t i o n d i s c l o s u r e s a r e c l o s e d t h e y a r e s u b j e c t t o b e i n g ropened.The purpose of the C3 project, described by Richard Williams who wthe manager of industrial engineering and in charge of the program, wasdevelop an alternative method of making a substrate which is a piece ceramic on which a chip or transitor is mounted

9 Tencza placed the meeting as occurring in June; Manager WilliamsMarch; and Project Manager Kenneth Varker in May.

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34 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARDcompatible to make an economic system. Although he-sub-sequently reminded Tencza about the proposal and thatTencza would have to prove the step and continue processwould be more economical than the contact exposure sys-tem which they would otherwise go ahead with, the propos-al was never submitted.- While Tencza at -one point ac-knowledged Williams had asked him to prepare an eco-nomic analysis, he later claimed Williams had informedhim not to submit it. Ogden, however, -testified at Tencza'srequest he had gathered information for an economic eval-uation.

Tencza's understanding of the conclusion reached at themeeting was they should obtain an ultraviolet laser to gettheir own data whereupon he subsequently borrowed a las-er from a vendor and he and Ogden performed some addi-tional experiments.

According to Assistant General Manager Doyle, an au-dit -report prepared by Manager Williams had concludedholography would not have technical or economical ad-vantages over the regular photo processing approaches.A further demonstration occurred about June 17, 1971,at Manager Myers' request in order -to bring his, depart-ment up to date on the work being done by Tencza andOgden. This also included a demonstration of the step andcontinue process.

Manager Myers testified about June 23, 1971, after com-pleting his review of the holographic effort concluding ho-lography was not applicable to the C3 program he had in-formed Manager Williams the holographic effort with re-spect to the C3 program was terminated. Williamscorroborated Myers' testimony which was confirmed bymemorandum with copies given to Tencza and Ogden.Manager Myers also discussed the memorandum withTencza about the first part of July. According to Myerssince there was no other application for holography otherthan the C3 program the holographic effort was discontin-ued except for the laser experiments already being con-ducted by Tencza and Ogden which ceased about-August.

Both Manager Williams and Manager Myers testifiedthe C3 program itself at the Endicott plant was terminatedfor economic factors, which Myers placed as occurringabout the middle of August 1971. -Tencza testified in late July he and Ogden presented theresults of their laser experiments 10 to Manager Myers atwhich time it was agreed the information would be com-municated to Manager Williams and other people in thecorporation. Ogden, except for stating a presentation wasgiven, did not testify concerning what was said.Tencza stated in late July or early August during a con-versation between Ogden, Manager Myers, and himself

upon their request that Myers communicate the informa-tion as he had promised; .Myers informed them it would becommunicated. Ogden's version was that, after he andTencza had indicated that while holography might cease atthe Endicott plant and there were other areas within theCompany working on holography where the informationshould be disseminated, Myers' response was that it shouldbe passed on.

Tencza testified during another conversation in late July10 Tencza did not testify what the alleged results were.

or early August 1971 between Manager Myers, Ogden, anhimself that Ogden stating the information should be communicated as it was important to both Tencza and himsefor gaining points toward a patent. Tencza further statethat, although Ogden had, said he would -hike-for Tencza tcommunicate the information and speak for both of themhe could not recall Myers' reply.-

Ogden' s version,was that he mentioned to Myers that ninformation had been passed on, their lab, was being tordown, and they had to get the information out and, uposuggesting- why not send Tencza to disseminate the infomation, Myers' response was he didn't know about it buthat he wanted to pass on the information. When Ogdeagain suggested letting Tencza do it, Myers' response wahe would consider it. Ogden did not corroborate Tenczatestimony that points toward a patent was discussed. Manager Myers acknowledged having conversations with Tenza in June, July, and August concerning the possible use oholography elsewhere within the Company and on one occasion telling Tencza he would take care of determininwhether there was other interest in holography, althoughe didn't do anything about it. This occurred when Tenczhad requested 3 weeks to travel around to other-companlocations to generate interest in holography. Myers did ndeny Ogden's having suggested that Tencza disseminatsuch information for them.

Later that day according to Tencza and Ogden whicManager Myers and Project Manager Varker placed as occurring on August 3, 1971, a meeting was held betweeVarker, Myers, Tencza, and Ogden at which the termination of holography was discussed as well as their new worassignments. Tencza's version of the meeting was while dicussing the termination of holography he had asked Varkeif the project-had been terminated why hadn't he and Ogden been copied in. Tencza, unable to recall Varker's response, testified later that, while questioning one of thtechnical considerations upon taking out a copy of the audit committee's report which he had; previously obtainefrom Ogden, Varker informed him he was misrepresentinthe situation because he had previously told him he hanever received a copy. Tencza's-explanation of what he haactually said was that he was not copied in. Tencza testified that, when Ogden inquired whether the .informatiocould be communicated as previously promised andwhether Tencza could be their spokesman to communicatit, Varker replied he could. Tencza stated Varker indicatea small number of trips could be made to various locationincluding Fishkill, New York, where the information couldbe communicated.Tencza further stated Varker informethem holography could be reopened if certain criteriwhich he listed were met. Under cross-examination Tenczstated Varker told him if he was able to come up with complete proposal which included a resolution of the technical problems he would be glad to consider it. Tencza didnot recall the criteria mentioned which he thought wereconomic and technical claiming he did not intend-to folow up on the items and wasn t pushing to reopen holography for, the C3 program. Ogden substantially corroborateTencza's version of the meeting adding, that upon his asking if Myers would help it was decided, he could -or wouldhelp.

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INTL. BUSINESS MACHINES CORP. 34Manager Myers' version was that while discussing holog-

raphy Varker informed Tencza if he could present a com-plete proposal they would be willing to `listen and if itshowed an application of holography to their business itwould be given further consideration. Myers mentioned hehad previously rejected Tencza's request for 3 weeks totravel around to other locations in the Company to pursueinterest in- holography whereupon Varker assured Tenczahe could travel to other locations including Fishkill 11 andcommunicate the information on his work on holographyprovided the visits were agreed upon by the receiving loca-tion and Varker was assured there was an interest at thatlocation. During the conversation after Tencza had men-tioned he had not received a copy of the audit committee'sreport when he pulled out a copy Varker became upsetinforming Tencza he had dust said he didn't have a copywhereupon Tencza's response was that what he had meantto say was he didn't get copied in on distribution or some-thing to that effect. Varker also assured them the laborato-ry would be kept intact.

Project Manager Varker, who corroborated ManagerMyers' testimony concerning the meeting, stated that 2 or 3weeks later Tencza had informed him they were not able tocome up with a proposal which was technically or econom-ically superior to the one they were using.Thereafter following the meeting Tencza was permittedto contact other persons within the Company and as a re-sult of conversations with Dr. Wilczynski at the Yorktownfacility and Jack Underhill at the Burlington, Vermont, fa-cility, who both had expressed an interest in holography,Teneza was permitted at his request and with the approvalof Manager Myers and Project Manager Varker to presentdemonstrations at the Yorktown facility about August 23,1971, and the Burlington facility about December 9, 1971,which included the step and continue process. Tencza ac- _knowledged as a result of this demonstration that theYorktown facility did reflect much interest; and ProjectManager Varker stated that he had received reports fromthe Burlington facility that they thought there were othermore common techniques reduced to practice which woulddo the job very adequately.

The only specific location where Tencza was denied theopportunity to visit was the Fishkill facility where he want-ed to stop on his return tr ip from the Yorktown facility.With respect to the Fishkill facility Tencza stated in Au-gust 1971 that he had contacted Dr. Wajda at the Fishkillfacility and, after representing to him that they had a ho-lography project which could possibly impact Wajda'sarea, Wajda's response was he could get a group of peopleto hear the presentation but also explained he wasn'tknowledgeable in holography.While it was Tencza's understanding the Fishkill facilityhad a responsibility for the C3 program which their stepand continue process directly addressed under cross-exam-ination he acknowledged he wasn't familiar with what theFishkill facility was doing-in any department. Jesse Aron-

1 1 Project Manager Varker stated the only facilities which had work appli-cable to holography besides the Endicott facility were those facilities locatedat Fishkill, Yorktown, and Burlington

stein, who was the manager of future manufacturing system at the Fishkill facility, denied the step and continuprocess had any practical application to the type work performed at the Fishkill facility either in 1971 or since thatime. Both Project Manager Varker and Manager Myertestified the presentation at the Yorktown facility woulhave included the Fishkill facility which had representatives present. Further, Myers also testified, in denyinTencza's request to visit the Fishkill facility, he had suggested Tencza should first present them with his writteinformation and after reviewing it if they were still interesed he could probably go.

Ogden did not participate in any of these trips nor ithere any evidence he made further attempts to stimulatinterest in their holography work following its terminatioat the Endicott facility.On February 4, 1972, Tencza attended a patent awarddinner to honor Respondent's Endicott employees, including himself, at which Ray Boedecker who was president othe Respondent's systems manufacturing division was thguest speaker. Tencza stated as Boedecker was leaving hinformed Boedecker one of the reasons he was there was tbe honored for his work and some of the work that Ogden,12 whom he pointed out could not be there because hneeded three more points, was doing which they feshould be communicated to other division. Tencza suggested Boedecker could indicate how they could cross divisional lines to communicate the information to the Fishkill facility because the bulk of its work was the C3 programBoedecker's response was he would look into it. Tenczstated he also told Boedecker in the last 8 months therhad been recent attention in other areas and he had beerequested by the Burlington and Yorktown facilities to present the information on something that might be criticallimportant.President Boedecker recalled Tencza bringing up thsubject of lasers and holography mentioning he didnthink an idea or-invention was getting proper attention anone of the divisions was not interested in his ideaBoedecker's response was he would have it looked intwhen he returned to his office the following week. Boedecker did not recall any other person's name mentioneby Tencza and his impression was Tencza was concerneabout his own idea and the lack of receptive activity in i

Tencza, in two affidavits given in connection with thinvestigation of the charge before it was dismissed on Otober 3, 1972, by the Regional Director for insufficient evdence, but subsequently reinstated, in describing his conversation with Boedecker did not mention any discussiopertaining to Ogden. I credit Boedecker rather than Tenzwhom I discredit for reasons discussed infra.On February 7, 1972, President Boedecker initiated ainvestigation with respect to Tencza's complaint 13 direcing a review to determine whether Tencza's holograph

1 2 Ogden had no knowledge Tencza was going to talk to Boedecker adenied he had ever suggested Tencza talk to Boedecker.

1 3 Tencza's complaint to Boedecker was treated as invoking Respondenopen door policy under which employees are entitled without being discriinated =against to present problems which have not been resolved to thsatisfaction at the lower supervisory levels to higher supervisors up to aincluding the chairman of the board

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34 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARDwork had received the proper attention.Upon receiving reports from General Manager Paul andPatent Counsel Elmer Galbi concluding Tencza's work hadbeen given full consideration, Boedecker by letter datedFebruary 16, 1972, informed Tencza of those results.

B. Tencza's Termination

Tencza was terminated on February 17, 1972, after de-clining an option of resigning. Manager Myers, ProjectManager Varker, and General Manager Doyle testified thedecision to terminate Tencza occurred on February 3,1972. However, its implementation was intially delayed onFebruary 4 because of personnel's concern whether he hadbeen given every consideration and his attendance of theawards dinner that evening and subsequently delayed untilthe open door policy invoked by Tencza's complaint toPresident Boedecker had been resolved.

Tencza testified that, although various reasons 14 weregiven him for his discharge by Manager Myers, Karl Her-mann,15 and Assistant General Manager Doyle, on the dayof his discharge when he asked Doyle in the presence ofRichard Hallock, who was the personnel manager over thesecond and third shifts, whether he was being fired becausehe had talked to President Boedecker at the patent awardsdinner, Doyle's response was "yes, that's it," but thenclaimed Doyle modified his answer by saying that was partof it.

Both General Manager Doyle and Personnel ManagerHallock denied Tencza was told his meeting with Boedeck-er had anything to do with his dismissal and Doyle deniedTencza had even mentioned their meeting.Tencza, in two affidavits given in connection with theinvestigation of the charge prior to its dismissal in October1972 as discussed, supra, in which his conversation withDoyle was referred to, made no mention about Doyle'stelling him the reason he was fired was because of his con-versation with Boedecker. However, in an affidavit givento a Board agent subsequent to the dismissal of the chargeTencza stated that, when he asked Doyle if his talking toBoedecker was the real reason he was being fired, Doylereplied, "yes, that's it." Contrary to his testimony at thehearing, however, there was no mention about Doyle thenmodifying his statement.

Although Tencza claimed during Respondent's subse-quent investigation of his discharge 16 that he brought tothe attention of President Boedecker, Roland Pampel, whowas an administrative assistant to the chairman of theboard, and Thomas Liptak, who was the line vice president14 These reasons included his failure to notify the purchasing department

about an ultraviolet laser ; bad working relations with Mr . Davis, who wasan engineer in charge of manufacturing , and Manager Williams, his refusalto accept work assignments and the termination of holography, and jobhunting.

While Tencza cla imed Williams pursuant to his inquiry had denied theyhad bad working relations, Williams stated on one occasion he had in-formed Mr. Hermann he had had bad personal relations with Tencza.1 5 Hermann did not testify.

16 Prior to Tencza's conversation with Assistant General Manager Doyle,President Boedecker at Tencza's request that same day had agreed to inves-tigate his dismissal and following his investigation by letter dated February25, 1972, had informed Tencza his dismissal was upheld

for systems manufacturing division, the reason allegedgiven to him by Assistant General Manager Doyle for hdischarge, Boedecker, Pampel, and Liptak denied thewere informed of this reason. Victor J. Goldberg, who wan executive assistant to the chairman of the board anparticipated in the investigation along with Pampel anLiptak, denied Tencza had ever informed him or Chairmaof the Board Learson in his presence that he was dismissebecause he had talked to Boedecker.

Further, although following his termination Tencza seletters to various company officials including Chairman the Board Learson, T. J. Watson, Administrative AssistaPampel, Executive Assistant Goldberg, President Boedecer, and Assistant General Manager Doyle concerning hdischarge, no mention was made of this alleged statemeby Doyle as being the cause' for his termination.

I discredit Tencza's testimony and credit the denials oAssistant General Manager Doyle, Personnel ManagHallock, Administrative Assistant Pampel, Line Vice Presdent Liptak, and President Boedecker who all impresseme as being credible witnesses and find that Doyle did noinform Tencza he was terminated because of his converstion with Boedecker at the patent awards dinner and thTencza did not subsequently inform Pampel, Liptak, oBoedecker that that was a reason given him for his termnation. Apart from my observation of the witnesses in discrediting Tencza not only did he testify in an evasive manner and on occasions contradict his own testimony but I dnot find plausible his testimony that, if he had been informed by Doyle that the reason for his discharge was hconversation with Boedecker at the patent awards dinnethis would not have appeared in his initial affidavits givein connection with the investigation of the charge in whichis conversations with Doyle were referred to or in any othe many written documents pertaining to his terminatiowhich were submitted by him to the Respondent followinhis termination. To discharge him because of his complainto Boedecker would have violated Respondent's open doopolicy of which policy Tencza was well aware.Concerning Respondent's reasons for terminating Tencza Manager Myers, Assistant Manager Doyle, and ProjecManager Varker who participated in the decision to terminate Tencza testified the reasons he was terminated werbecause of poor attitude, inappropriate conduct, and lacof professionalism.17 These were reasons, contrary tTencza's denial he had ever been warned he would be terminated, similar to those for which Tencza had been puon probation in 1970 while working under the supervisioof John Tamulis and warned, a warning subsequently reiterated, such future conduct could result m his immediatdismissal.

Examples of such conduct in addition to Tencza's representation to Project Manager Varker on August 3, 1971that he didn't have a copy of the audit committee's reporrelied on by Respondent for terminating Tencza includethe following incidents: Manager Myers, whose testimonwas corroborated by Dave Berry, a buyer in the purchasindepartment, testified upon checking with Berry after Tenc

17 Project Manager Varker denied Tencza 's performance was a reason fohis discharge. Accordingly, the evidence relating to such performance winot be discussed

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INTL. BUSINESS MACHINES CORP. 34za had represented to him that he had made arrangementswith Berry for obtaining an ultraviolet laser from a vendor,Berry denied Tencza had made such arrangements . Tenczawhile stating he had indicated to Myers he would take careof it and claimed it was eventually cleared with Berryfailed to establish he had cleared the matter as required byRespondent's procedures.

Manager Myers stated that, in July 1971 upon assigningTencza to assist other persons on a laser resist cutting pro-cess, Tencza was reluctant to perform the assignment con-tending it was beneath his position and mentioning he didnot want to implement the work of others. While Tenczadenied this incident, I credit Myers'- testimony.Project Manager Varker and Manager McCreary testi-fied Tencza had asked them to approve a subscription, inexcess of $200, for a laser abstracts magazine althoughTencza's supervisor Manager Myers had disapproved hisrequest. Although Tencza denied having asked anyoneother than Myers to approve the subscription, he admittedhe may have brought it to the attention of other personsbut could not recall who. I credit the testimonies of Myers,McCreary, and Varker.

Manager McCreary, whose testimony was corroboratedby Manager Myers, testified that, upon reviewing Tencza'swork plan on his near contact printing assignment , Tenczaindicated the plan had been approved by Myers whichMyers denied. Tencza who evaded answering the questionwhether he had informed McCreary that Myers had ap-proved his plan did not deny it.Manager McCreary stated on another occasion, whilereviewing Tencza's assignment with him, Tencza had in-formed him that Paul Chebiniak had canceled a similarproject because it wasn't feasible. Upon calling Chebiniakin Tencza's presence, Chebiniak informed him the projectwas not canceled because it wasn't feasible but because ofthe cancellation of the C3 project. Although Tencza re-called a conversation between McCreary and Chebiniakconcerning the matter, he did not give his version and Icredit McCreary who I find was a credible witness.Other reasons for Tencza 's termination were his effortsto obtain jobs at Respondent 's facilities including thoselocated at Glendale, San Jose, and Yorktown withoutgoing through the proper channels. Tencza admitted aboutJanuary 1972 having contacted Mr. Riley at the Glendalefacility directly concerning job profiles and about Septem-ber or October 1971 contacting Dr. Luntz at the San Josefacility about a job. Manager McCreary also stated that,when Tencza represented to him that McCreary had in-formed him he could go to San Jose for an interview, Mc-Creary denied it. Although Project Manager Varker testi-fied during Tencza's visit to the Yorktown facility that Dr.Wilczynski had contacted him requesting that Tencza beallowed to remain for another day to be interviewed for ajob, Dr. Wilczynski did not testify and Respondent's ownrecords indicated Dr. Wilczynski had subsequently deniedit. According to Tencza prior to making the trip he hadexpressly informed Dr. Wilczynski he had no intention ofjob hunting, whereupon Dr. Wilczynski had respondedthere was no chance of an opening.

Senior Engineer Heinz Klauser 'while interviewing em-ployees for a technical assignment testified about late No-

vember or early December 1971 Tencza had contacted himabout being interviewed . While Tencza denied he hadasked for or sought a job, he admitted contacting Klauserabout whether he was on a list of persons being consideredfor a position on his staff.

Assistant General Manager Doyle, Manager Myers, andProject Manager Varker denied Tencza was terminated be-cause of holography which would have included the invention disclosure . Another reason for which he was discharged, however, was his requiring an excessive use omanagement time of which holography was one exampleDoyle described Tencza's efforts to get holography testedand retested after it had already been completely tested asan example of excessive managem ent time. M yers de-scribed Tencza 's persistence in repeatedly arguing a poinof view on holography as an example. Varker cited as ex-amples of the excessive use of management time Tencza'sefforts to obtain various managers' approval for the subscription to the laser abstracts magazine and having to ex-plain to Tencza on August 3 why the program had beenterminated by the Respondent.

C. Analysis and ConclusionsThe General Counsel contends while Respondent denies

that the Respondent violated Section 8(a)(1) of the Act bydiscriminatorily discharging and refusing to reinstate Tencza because he had engaged in concerted activities for thepurpose of collective bargaining or mutual aid or protection.

These concerted activities as defined by the GeneraCounsel pursuant to a pretrial order were attempts byTencza on behalf of himself and a coinventor, Ogden, toobtain recognition from Respondent for the "Step andContinue Holographic Exposure System" developed bythem for which they could have received points countedtowards obtaining financial benefits."

Section 8(a)(1) of the Act prohibits an employer frominterfering with, restraining, or coercing its employees inthe exercise of their rights guaranteed in Section 7 of theAct.19 This section protects employees ' concerted acitivitieengaged in for the purpose of obtaining monetary benefitsfrom their employers. Cf. Union Camp Corporation, Building Products Div., 194 NLRB 933 (1972), enfd: 463 F.2d1136 (C.A. 5, 1972); KPRS Broadcasting Corporation, 18 1NLRB 535'(1970). The protection accorded them undethis section is not dependent on the merit or lack of meriof their concerted activities. See The Singer Company, Climate Control Division, 198 NLRB 870, footnote 5 (1972)Nor to be entitled to such protection do employees engaged in concerted activities first have to make a demandupon the employer to remedy a condition they find objec-tionable. N.L.R.B. v. Washington Aluminum Company, 370U.S. 9 (1962).

1 8 These points ho wever can only be obtained where invention disclosuresubmitted by the inventors are approved by the Respondent and patenap?hcatwns are filed or published.e Sec . 7 of the Act provides in pertinent part "Employees shall have theright .. to engage in other concerted activities for the purpose of collectivebargaining or other mutual aid or protection .. .

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350 DECISIONS OF NATIONAL LABOR' RELATIONS BOARDUpon, considering, the findings; supra, the evidence in-cluding the testimony of both Tencza and Ogden estab-

lished that following the filing of their invention disclosurewith Respondent about August 4, 1971, and while it waspending approval they took no direct action towards ob-taining-Respondent's recognition of their invention disclo-sure and following its rejection by Respondent on January28, 1972, for-lack of present technical support and techni-cal reasons they did not as admitted by Tencza either pro-test the decision or seek its reconsideration.Prior to submitting the invention disclosure, their workon the step and continue process and their participation inthe demonstrations which were performed for Respondentfor the purpose of evaluating and determining its applica-tion were but part of their normal work duties.

The evidence with respect to their requests of ManagerMyers and Project Manager Varker that certain informa-tion be communicated and Tencza be permitted to visitother facilities'to communicate such information dealt notwith the invention disclosure itself, which at the time suchrequests were made had not been filed or was awaitingapproval, but with respect to work on holography in gener-al. The purpose of these requests and the visits were tostimulate interest in, holography in order that such workmight be continued or found to be applicable elsewhererather than to promote the invention disclosure. Neitherpoints or monetary benefits would inure to Tencza or Og-den from such promotion since as previously noted theseare only derived from successful invention disclosures.

To the extent that any these requests and visits may haveindirectly had the effect of promoting the invention disclo-sure since the step and continue process was a part of ho-lography and the demonstrations at the facilities visitedincluded this process even assuming arguendo, although Ifind it unnecessary to decide, such acitivites could consti-tute a protected concerted activity, I find this was not thecause of Tencza's termination.

Respondent which had evaluated the holography effortincluding the step and continue process, which was neverperfected, and finding it to be inapplicable did permitTencza to visit those specific facilities, except for the Fish-kill facility, which he had requested whereby he was per-mitted to communicate information on holography includ-ing the step and continue process. With respect to the Fish-kill facility the undisputed testimonies of Project ManagerVarker and Manager Myers established the presentation atthe Yorktown facility would have included representativesof the Fishkill facility and Fishkill facility ManagerAronstein's testimony established the step and continueprocess had no practical application to the type work per-formed there. Thus it cannot be said Respondent undulyrestricted Tencza's'right to communicate such informationas it had been agreed.

Having discredited Tencza's testimony concerning A reason allegedly given to him by Assistant General Manaer Doyle for his discharge, I do not find- the evidence sufcient to establish Tencza was terminated because of anefforts by him on-behalf of himself and Ogden to obtarecognition from Respondent- for. their invention disclsure. Rather, I credit the reasons given by Manager MyeAssistant Manager Doyle, and Project - Manager Varkwhom I find to be credible witnesses for the dischargeTencza who had-previously been placed on probation fsimilar reasons and warned such further conduct could rsult in his termination.Therefore, I find that the General Counsel has failed.establish by a preponderance of the evidence, ,as is his bden, that Respondent discriminatorily discharged and dnied Tencza reinstatement in violation of Section 8(a)(1)the Act,,as alleged.20

Having found that Tencza's discharge and denial _of rinstatement were not unlawful, I do not find it necessaryconsider whether an incident which occurred on April 21972, subsequent to his discharge, whereby Tencza had amittedly refused to leave the office of Respondent's chaman of the board as directed resulting in his being physcally ejected by the police constituted sufficient grounfor barring his reinstatement. - -

CONCLUSIONS OF LAw

1 . International Business Machines Corporation is employer engaged in commerce within the meaning of Setion 2(6) and (7) of the Act.

2. The evidence does not prove that the Respondent vlated Section 8(a)(1) of the Act as alleged.Upon the foregoing findings of fact, conclusions of laand the entire record in this case, I hereby issue the follow

ing recommended:ORDER21

The complaint, as amended, herein - is dismissed in entirety.

20 To the extent General Counsel now contends contrary to the pleadinthat Tencza was terminated because of holography rather than to obtrecognition for the invention disclosure it would appear although the issunot before me that, since it was within Respondent's prerogative to discotinue work on projects which had not been perfected and found inapplible, those efforts, if any, by Tencza on behalf of himself and Ogdenreverse such decision for which neither of them would receive pointsfinancial benefits would not constitute a protected activity under the Ac

21 In the event no exceptions are filed as provided by Sec 102.46 of Rules and Regulations of the National Labor Relations Board, the findinconclusions, and recommended Order herein shall, as provided in Sec 1.48 of the Rules and Regulations, be adopted by the Board and becomefindings, conclusions, and Order, and all objections thereto shall be deemwaived for all purposes.