International Business Machines Corp.

National Labor Relations Board - Board Decisions

Oct 25, 1974

214 N.L.R.B. 344 (N.L.R.B. 1974)

344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Business Machines Corporation and Al-
bert D . Tencza . Case 3-CA-5004
October 25, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
PENELLO
On June 17, 1974, Administrative Law Judge
Thomas D. Johnston issued the altached Decision in
this proceeding. Thereafter, the General Counsel and
the Charging Party filed exceptions and supporting
briefs and the Respondent filed cross-exceptions and
a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National 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 briefs
and has decided to affirm the rulings, findings,' and
conclusions 2 of the Administrative Law Judge and
to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
i The Charging Party has excepted to certain credibility findings made by
the Administrative Law Judge It is the Board's established policy not to
overrule an Administrative Law Judge 's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd. 188 F 2d 362 (CA 3, 1951) We have carefully
examined 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 as
it only addresses itself to a limited aspect of the Administrative Law Judge's
credibility resolutions.
2 The General Counsel and Charging Party contend that Tencza was dis-
charged in part for engaging in protected concerted activity which consisted
of discussions with Respondent which potentially could have led to finan-
cial benefits for Tencza and Ogden . We disagree . The record establishes
that the discussions between Tencza and his manager at the Endicott facili-
ty, which Respondent found to be instances of Tencza 's requiring excessive
use of management time, dealt repeatedly with holography in general and
the technical and economic questions which prompted Respondent to ter-
mmate research work at the Endicott facility in this general area of optics in
summer 1971. The record also makes clear that these instances of "excessive
management time" did not involve any direct efforts by Tencza to affect the
decision 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-continue
process nor his requests to present and demonstrate this work elsewhere.
We therefore find that these discussions with the Endicott management
concerning holography were so remotely related to the achievement of or
consideration 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 terminated for reasons wholly unrelat-
ed to concerted protected activitiy.
DECISION
STATEMENT OF THE CASE
THOMAS D. JOHNSTON , Administrative Law Judge: This
case was heard at Binghamton, New York, on March 5
through 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 the
National Labor Relations Act, as amended (herein referred
to as the Act), by discriminatorily discharging Albert Tenc-
za and refusing to reinstate him because he had engaged in
concerted activities for the purpose of collective bargaining
or mutual aid or protection.
Respondent in its answer filed on February 11, 1974,
denied having violated the Act asserting as its defenses
Tencza was discharged for cause and had also engaged in
conduct 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 and
denying reinstatement to Tencza because of his protected
concerted activities.
The parties at the hearing were afforded full opportunity
to introduce relevant evidence , to examine and cross-exam-
ine witnesses , to argue orally on the record , and to submit
briefs.
Upon the entire record 4 in this case and from my obser-
vation of the witnesses and after due consideration of the
briefs filed by the General Counsel 5 and the , Respondent,'
I hereby make the following:
i The original charge was filed on August 14, 1972
2 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 Dean
Ogden , to obtain recognition from Respondent for a process entitled, `Step
and Continue Holographic Exposure System,' which process was developed
by 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 untimely
filed 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 General
Counsel which was objected to by Respondent these motions were unop-
posed Having considered these motions and the objection these motions
are hereby granted except for the proposed correction by General Counsel
which 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
INTL. BUSINESS MACHINES CORP. 345
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a corporation licensed to do business in the
State of New York, with its principal office and place of
business located at North Castle, New York, is engaged in
the 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 and
related 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 which
were shipped directly from those facilities to states located
outside the State of New York.
Respondent admits, and I find, that it is an employer
engaged 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 Termination
Albert 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 field
engineer at its Patterson, New Jersey, facility while contin-
uing his education.
Tencza along with Dean Ogden who held the position of
technician, senior lab specialist, worked in the manufactur-
ing research department until about June 12, 1971, when
they were transferred to the process engineering depart-
ment under the supervision of Development Engineer and
Manager Ronald Myers. Tencza, except for the period
from about August 31, 1971, until about November 1971
when 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 the
manufacturing research department and for a short period
after being transferred to the process engineering depart-
ment they had worked together spending a majority of
their 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 an
invention disclosure with Respondent entitled "Step and
Continue Holographic Exposure System." The invention
disclosure, 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 by
them to Respondent's patent department which evaluated
it.
Tencza, when questioned whether he had done any cam-
paigning with respect to the invention disclosure, while
first stating he had talked to other persons, when pressed as
to their identities, concluded by saying he had only had it
signed as required.
Under Respondent's Invention Achievement Award
Plan inventors and coinventors are entitled to receive
"points" for their invention disclosures where Respondent
approves them and patent applications are filed or pub
fished. Upon acquiring a sufficient number of points they
are entitled to receive cash awards. Both Tencza and Og-
den had worked together on inventions disclosures and had
received "points" under the award plan and Tencza in ad-
dition had received a cash award.
On January 28, 1972, Ogden and Tencza after being no-
tified orally were informed by memorandum from Patent
Attorney Kenneth Johnson their invention disclosure on
the "Step and Continue Holographic Exposure System"
had been reviewed and was being closed 7 because there
was no present technical support for the invention. The
memorandum also stated the proposal had left unanswered
certain technical problems and mentioned if facts showed
a renewed interest they should notify the patent depart-
ment. Senior Engineer Joseph Kirk and Staff Physicist
James Bupp who performed the technical evaluations of
the invention disclosure and submitted them to Patent At-
torney Johnson confirmed the existence of these unre-
solved technical problems.
Tencza acknowledged he did not protest or seek recon-
sideration of the decision. Y
Prior to submitting their invention disclosure Tencza
and Ogden participated in several demonstrations at which
the step and continue process was demonstrated. One dem-
onstration occurred about April or May 1971 when a tech-
nical review committee comprised of ' seven members, in-
cluding Manager Myers, met for the purpose of determin-
ing whether holography had any merit as a projection
printing technique. On May 25, 1971, the committee's au-
dit report recommended that holographic projection print-
ing was not an appropriate technology for the C program;8
the holography effort pursued by the department should be
discontinued; and the eventual value of holography pro-
jection printing could not be determined at that time. "
Another demonstration, the date of which was not estab-
lished,9 was given by Tencza and Ogden for Manager Wil-
liams for the purpose of determining whether the step and
continue process was--applicable to'the C project. Accord-
ing to Ronald Doyle, who was the assistant general manag-
er for circuit packaging operations, this demonstration re-
sulted from Tencza's contention the step and continue pro-
cess could be used in the C3 project. Tencza who
acknowledged talking to Doyle about the application of
holograpuld not recall the circumstances under which
he wa-s-asked to make the presentation.
Williams stated as a result of this demonstration he had
instructed Tencza to present him with an economic propos-
al to assure him the laser power or the resist could be made
7 Although invention disclosures are closed they are subject to being re-
opened.
The purpose of the C3 project, described by Richard Williams who was
the manager of industrial engineering and in charge of the program, was to
develop an alternative method of making a substrate which is a piece of
ceramic on which a chip or transitor is mounted
9 Tencza placed the meeting as occurring in June; Manager Williams in
March; and Project Manager Kenneth Varker in May.
346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
compatible to make an economic system. Although he-sub-
sequently reminded Tencza about the proposal and that
Tencza would have to prove the step and continue process
would 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 informed
him not to submit it. Ogden, however, -testified at Tencza's
request he had gathered information for an economic eval-
uation.
Tencza's understanding of the conclusion reached at the
meeting was they should obtain an ultraviolet laser to get
their 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 concluded
holography 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 and
Ogden. This also included a demonstration of the step and
continue 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. Williams
corroborated Myers' testimony which was confirmed by
memorandum with copies given to Tencza and Ogden.
Manager Myers also discussed the memorandum with
Tencza about the first part of July. According to Myers
since there was no other application for holography other
than 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 testified
the C3 program itself at the Endicott plant was terminated
for economic factors, which Myers placed as occurring
about the middle of August 1971. -
Tencza testified in late July he and Ogden presented the
results of their laser experiments 10 to Manager Myers at
which time it was agreed the information would be com-
municated to Manager Williams and other people in the
corporation. Ogden, except for stating a presentation was
given, 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 be
communicated. Ogden's version was that, after he and
Tencza had indicated that while holography might cease at
the Endicott plant and there were other areas within the
Company working on holography where the information
should be disseminated, Myers' response was that it should
be passed on.
Tencza testified during another conversation in late July
10 Tencza did not testify what the alleged results were.
or early August 1971 between Manager Myers, Ogden, and
himself that Ogden stating the information should be com-
municated as it was important to both Tencza and himself
for gaining points toward a patent. Tencza further stated
that, although Ogden had, said he would -hike-for Tencza to
communicate the information and speak for both of them,
he could not recall Myers' reply.-
Ogden' s version,was that he mentioned to Myers that no
information had been passed on, their lab, was being torn
down, and they had to get the information out and, upon
suggesting- why not send Tencza to disseminate the infor-
mation, Myers' response was he didn't know about it but
that he wanted to pass on the information. When Ogden
again suggested letting Tencza do it, Myers' response was
he would consider it. Ogden did not corroborate Tencza's
testimony that points toward a patent was discussed. Man-
ager Myers acknowledged having conversations with Tenc-
za in June, July, and August concerning the possible use of
holography elsewhere within the Company and on one oc-
casion telling Tencza he would take care of determining
whether there was other interest in holography, although
he didn't do anything about it. This occurred when Tencza
had requested 3 weeks to travel around to other-company
locations to generate interest in holography. Myers did not
deny Ogden's having suggested that Tencza disseminate
such information for them.
Later that day according to Tencza and Ogden which
Manager Myers and Project Manager Varker placed as oc-
curring on August 3, 1971, a meeting was held between
Varker, Myers, Tencza, and Ogden at which the termina-
tion of holography was discussed as well as their new work
assignments. Tencza's version of the meeting was while dis-
cussing the termination of holography he had asked Varker
if the project-had been terminated why hadn't he and Og-
den been copied in. Tencza, unable to recall Varker's re-
sponse, testified later that, while questioning one of the
technical considerations upon taking out a copy of the au-
dit committee's report which he had; previously obtained
from Ogden, Varker informed him he was misrepresenting
the situation because he had previously told him he had
never received a copy. Tencza's-explanation of what he had
actually said was that he was not copied in. Tencza testi-
fied that, when Ogden inquired whether the .information
could be communicated as previously promised and
whether Tencza could be their spokesman to communicate
it, Varker replied he could. Tencza stated Varker indicated
a small number of trips could be made to various locations
including Fishkill, New York, where the information could
be communicated.Tencza further stated Varker informed
them holography could be reopened if certain criteria
which he listed were met. Under cross-examination Tencza
stated Varker told him if he was able to come up with a
complete proposal which included a resolution of the tech-
nical problems he would be glad to consider it. Tencza did
not recall the criteria mentioned which he thought were
economic and technical claiming he did not intend-to fol-
low up on the items and wasn t pushing to reopen hologra-
phy for, the C3 program. Ogden substantially corroborated
Tencza's version of the meeting adding, that upon his ask-
ing if Myers would help it was decided, he could -or would
help.
INTL. BUSINESS MACHINES CORP. 347
Manager 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 it
showed an application of holography to their business it
would be given further consideration. Myers mentioned he
had previously rejected Tencza's request for 3 weeks to
travel around to other locations in the Company to pursue
interest in- holography whereupon Varker assured Tencza
he could travel to other locations including Fishkill 11 and
communicate the information on his work on holography
provided the visits were agreed upon by the receiving loca-
tion and Varker was assured there was an interest at that
location. During the conversation after Tencza had men-
tioned he had not received a copy of the audit committee's
report when he pulled out a copy Varker became upset
informing Tencza he had dust said he didn't have a copy
whereupon Tencza's response was that what he had meant
to 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 Manager
Myers' testimony concerning the meeting, stated that 2 or 3
weeks later Tencza had informed him they were not able to
come up with a proposal which was technically or econom-
ically superior to the one they were using.
Thereafter following the meeting Tencza was permitted
to contact other persons within the Company and as a re-
sult of conversations with Dr. Wilczynski at the Yorktown
facility 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 approval
of Manager Myers and Project Manager Varker to present
demonstrations 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 the
Yorktown facility did reflect much interest; and Project
Manager Varker stated that he had received reports from
the Burlington facility that they thought there were other
more common techniques reduced to practice which would
do the job very adequately.
The only specific location where Tencza was denied the
opportunity to visit was the Fishkill facility where he want-
ed to stop on his return trip from the Yorktown facility.
With respect to the Fishkill facility Tencza stated in Au-
gust 1971 that he had contacted Dr. Wajda at the Fishkill
facility and, after representing to him that they had a ho-
lography project which could possibly impact Wajda's
area, Wajda's response was he could get a group of people
to hear the presentation but also explained he wasn't
knowledgeable in holography.
While it was Tencza's understanding the Fishkill facility
had a responsibility for the C3 program which their step
and continue process directly addressed under cross-exam-
ination he acknowledged he wasn't familiar with what the
Fishkill facility was doing-in any department. Jesse Aron-
11 Project Manager Varker stated the only facilities which had work appli-
cable to holography besides the Endicott facility were those facilities located
at Fishkill, Yorktown, and Burlington
stein, who was the manager of future manufacturing sys-
tem at the Fishkill facility, denied the step and continue
process had any practical application to the type work per-
formed at the Fishkill facility either in 1971 or since that
time. Both Project Manager Varker and Manager Myers
testified the presentation at the Yorktown facility would
have included the Fishkill facility which had representa-
tives present. Further, Myers also testified, in denying
Tencza's request to visit the Fishkill facility, he had sug-
gested Tencza should first present them with his written
information and after reviewing it if they were still interest-
ed he could probably go.
Ogden did not participate in any of these trips nor is
there any evidence he made further attempts to stimulate
interest in their holography work following its termination
at the Endicott facility.
On February 4, 1972, Tencza attended a patent awards
dinner to honor Respondent's Endicott employees, includ-
ing himself, at which Ray Boedecker who was president of
the Respondent's systems manufacturing division was the
guest speaker. Tencza stated as Boedecker was leaving he
informed Boedecker one of the reasons he was there was to
be honored for his work and some of the work that Og-
den,12 whom he pointed out could not be there because he
needed three more points, was doing which they felt
should be communicated to other division. Tencza suggest-
ed Boedecker could indicate how they could cross division-
al lines to communicate the information to the Fishkill fa-
cility because the bulk of its work was the C3 program.
Boedecker's response was he would look into it. Tencza
stated he also told Boedecker in the last 8 months there
had been recent attention in other areas and he had been
requested by the Burlington and Yorktown facilities to pre-
sent the information on something that might be critically
important.
President Boedecker recalled Tencza bringing up the
subject of lasers and holography mentioning he didn't
think an idea or-invention was getting proper attention and
one of the divisions was not interested in his idea.
Boedecker's response was he would have it looked into
when he returned to his office the following week. Boe-
decker did not recall any other person's name mentioned
by Tencza and his impression was Tencza was concerned
about his own idea and the lack of receptive activity in it.
Tencza, in two affidavits given in connection with the
investigation of the charge before it was dismissed on Oc-
tober 3, 1972, by the Regional Director for insufficient evi-
dence, but subsequently reinstated, in describing his con-
versation with Boedecker did not mention any discussion
pertaining to Ogden. I credit Boedecker rather than Tenza,
whom I discredit for reasons discussed infra.
On February 7, 1972, President Boedecker initiated an
investigation with respect to Tencza's complaint 13 direct-
ing a review to determine whether Tencza's holographic
12 Ogden had no knowledge Tencza was going to talk to Boedecker and
denied he had ever suggested Tencza talk to Boedecker.
13 Tencza's complaint to Boedecker was treated as invoking Respondent's
open door policy under which employees are entitled without being discrim-
inated =against to present problems which have not been resolved to their
satisfaction at the lower supervisory levels to higher supervisors up to and
including the chairman of the board
348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work had received the proper attention.
Upon receiving reports from General Manager Paul and
Patent Counsel Elmer Galbi concluding Tencza's work had
been given full consideration, Boedecker by letter dated
February 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, Project
Manager Varker, and General Manager Doyle testified the
decision to terminate Tencza occurred on February 3,
1972. However, its implementation was intially delayed on
February 4 because of personnel's concern whether he had
been given every consideration and his attendance of the
awards dinner that evening and subsequently delayed until
the open door policy invoked by Tencza's complaint to
President Boedecker had been resolved.
Tencza testified that, although various reasons 14 were
given him for his discharge by Manager Myers, Karl Her-
mann,15 and Assistant General Manager Doyle, on the day
of his discharge when he asked Doyle in the presence of
Richard Hallock, who was the personnel manager over the
second and third shifts, whether he was being fired because
he had talked to President Boedecker at the patent awards
dinner, Doyle's response was "yes, that's it," but then
claimed Doyle modified his answer by saying that was part
of it.
Both General Manager Doyle and Personnel Manager
Hallock denied Tencza was told his meeting with Boedeck-
er had anything to do with his dismissal and Doyle denied
Tencza had even mentioned their meeting.
Tencza, in two affidavits given in connection with the
investigation of the charge prior to its dismissal in October
1972 as discussed, supra, in which his conversation with
Doyle was referred to, made no mention about Doyle's
telling him the reason he was fired was because of his con-
versation with Boedecker. However, in an affidavit given
to a Board agent subsequent to the dismissal of the charge
Tencza stated that, when he asked Doyle if his talking to
Boedecker was the real reason he was being fired, Doyle
replied, "yes, that's it." Contrary to his testimony at the
hearing, however, there was no mention about Doyle then
modifying his statement.
Although Tencza claimed during Respondent's subse-
quent investigation of his discharge 16 that he brought to
the attention of President Boedecker, Roland Pampel, who
was an administrative assistant to the chairman of the
board, and Thomas Liptak, who was the line vice president
14 These reasons included his failure to notify the purchasing department
about an ultraviolet laser ; bad working relations with Mr . Davis, who was
an engineer in charge of manufacturing , and Manager Williams, his refusal
to accept work assignments and the termination of holography, and job
hunting.
While Tencza claimed Williams pursuant to his inquiry had denied they
had bad working relations, Williams stated on one occasion he had in-
formed Mr. Hermann he had had bad personal relations with Tencza.
15 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 February
25, 1972, had informed Tencza his dismissal was upheld
for systems manufacturing division, the reason allegedly
given to him by Assistant General Manager Doyle for his
discharge, Boedecker, Pampel, and Liptak denied they
were informed of this reason. Victor J. Goldberg, who was
an executive assistant to the chairman of the board and
participated in the investigation along with Pampel and
Liptak, denied Tencza had ever informed him or Chairman
of the Board Learson in his presence that he was dismissed
because he had talked to Boedecker.
Further, although following his termination Tencza sent
letters to various company officials including Chairman of
the Board Learson, T. J. Watson, Administrative Assistant
Pampel, Executive Assistant Goldberg, President Boedeck-
er, and Assistant General Manager Doyle concerning his
discharge, no mention was made of this alleged statement
by Doyle as being the cause' for his termination.
I discredit Tencza's testimony and credit the denials of
Assistant General Manager Doyle, Personnel Manager
Hallock, Administrative Assistant Pampel, Line Vice Presi-
dent Liptak, and President Boedecker who all impressed
me as being credible witnesses and find that Doyle did not
inform Tencza he was terminated because of his conversa-
tion with Boedecker at the patent awards dinner and that
Tencza did not subsequently inform Pampel, Liptak, or
Boedecker that that was a reason given him for his termi-
nation. Apart from my observation of the witnesses in dis-
crediting Tencza not only did he testify in an evasive man-
ner and on occasions contradict his own testimony but I do
not find plausible his testimony that, if he had been in-
formed by Doyle that the reason for his discharge was his
conversation with Boedecker at the patent awards dinner,
this would not have appeared in his initial affidavits given
in connection with the investigation of the charge in which
his conversations with Doyle were referred to or in any of
the many written documents pertaining to his termination
which were submitted by him to the Respondent following
his termination. To discharge him because of his complaint
to Boedecker would have violated Respondent's open door
policy of which policy Tencza was well aware.
Concerning Respondent's reasons for terminating Tenc-
za Manager Myers, Assistant Manager Doyle, and Project
Manager Varker who participated in the decision to termi-
nate Tencza testified the reasons he was terminated were
because of poor attitude, inappropriate conduct, and lack
of professionalism.17 These were reasons, contrary to
Tencza's denial he had ever been warned he would be ter-
minated, similar to those for which Tencza had been put
on probation in 1970 while working under the supervision
of John Tamulis and warned, a warning subsequently reit-
erated, such future conduct could result m his immediate
dismissal.
Examples of such conduct in addition to Tencza's repre-
sentation to Project Manager Varker on August 3, 1971,
that he didn't have a copy of the audit committee's report
relied on by Respondent for terminating Tencza included
the following incidents: Manager Myers, whose testimony
was corroborated by Dave Berry, a buyer in the purchasing
department, testified upon checking with Berry after Tenc-
17 Project Manager Varker denied Tencza 's performance was a reason for
his discharge. Accordingly, the evidence relating to such performance will
not be discussed
J
INTL. BUSINESS MACHINES CORP. 349
za had represented to him that he had made arrangements
with Berry for obtaining an ultraviolet laser from a vendor,
Berry denied Tencza had made such arrangements . Tencza
while stating he had indicated to Myers he would take care
of it and claimed it was eventually cleared with Berry
failed to establish he had cleared the matter as required by
Respondent's procedures.
Manager Myers stated that, in July 1971 upon assigning
Tencza 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 did
not want to implement the work of others. While Tencza
denied this incident, I credit Myers'- testimony.
Project Manager Varker and Manager McCreary testi-
fied Tencza had asked them to approve a subscription, in
excess of $200, for a laser abstracts magazine although
Tencza's supervisor Manager Myers had disapproved his
request. Although Tencza denied having asked anyone
other than Myers to approve the subscription, he admitted
he may have brought it to the attention of other persons
but could not recall who. I credit the testimonies of Myers,
McCreary, and Varker.
Manager McCreary, whose testimony was corroborated
by Manager Myers, testified that, upon reviewing Tencza's
work plan on his near contact printing assignment , Tencza
indicated the plan had been approved by Myers which
Myers denied. Tencza who evaded answering the question
whether he had informed McCreary that Myers had ap-
proved his plan did not deny it.
Manager McCreary stated on another occasion, while
reviewing Tencza's assignment with him, Tencza had in-
formed him that Paul Chebiniak had canceled a similar
project because it wasn't feasible. Upon calling Chebiniak
in Tencza's presence, Chebiniak informed him the project
was not canceled because it wasn't feasible but because of
the cancellation of the C3 project. Although Tencza re-
called a conversation between McCreary and Chebiniak
concerning the matter, he did not give his version and I
credit McCreary who I find was a credible witness.
Other reasons for Tencza 's termination were his efforts
to obtain jobs at Respondent 's facilities including those
located at Glendale, San Jose, and Yorktown without
going through the proper channels. Tencza admitted about
January 1972 having contacted Mr. Riley at the Glendale
facility directly concerning job profiles and about Septem-
ber or October 1971 contacting Dr. Luntz at the San Jose
facility 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 be
allowed to remain for another day to be interviewed for a
job, Dr. Wilczynski did not testify and Respondent's own
records indicated Dr. Wilczynski had subsequently denied
it. According to Tencza prior to making the trip he had
expressly informed Dr. Wilczynski he had no intention of
job hunting, whereupon Dr. Wilczynski had responded
there 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 him
about being interviewed . While Tencza denied he had
asked for or sought a job, he admitted contacting Klauser
about whether he was on a list of persons being considered
for a position on his staff.
Assistant General Manager Doyle, Manager Myers, and
Project Manager Varker denied Tencza was terminated be-
cause of holography which would have included the inven-
tion disclosure . Another reason for which he was dis-
charged, however, was his requiring an excessive use of
management time of which holography was one example.
Doyle described Tencza's efforts to get holography tested
and retested after it had already been completely tested as
an example of excessive management time. Myers de-
scribed Tencza 's persistence in repeatedly arguing a point
of view on holography as an example. Varker cited as ex-
amples of the excessive use of management time Tencza's
efforts to obtain various managers' approval for the sub-
scription to the laser abstracts magazine and having to ex-
plain to Tencza on August 3 why the program had been
terminated by the Respondent.
C. Analysis and Conclusions
The General Counsel contends while Respondent denies
that the Respondent violated Section 8(a)(1) of the Act by
discriminatorily discharging and refusing to reinstate Tenc-
za because he had engaged in concerted activities for the
purpose of collective bargaining or mutual aid or protec-
tion.
These concerted activities as defined by the General
Counsel pursuant to a pretrial order were attempts by
Tencza on behalf of himself and a coinventor, Ogden, to
obtain recognition from Respondent for the "Step and
Continue Holographic Exposure System" developed by
them for which they could have received points counted
towards obtaining financial benefits."
Section 8(a)(1) of the Act prohibits an employer from
interfering with, restraining, or coercing its employees in
the exercise of their rights guaranteed in Section 7 of the
Act.19 This section protects employees ' concerted acitivities
engaged in for the purpose of obtaining monetary benefits
from their employers. Cf. Union Camp Corporation, Build-
ing Products Div., 194 NLRB 933 (1972), enfd: 463 F.2d
1136 (C.A. 5, 1972); KPRS Broadcasting Corporation, 181
NLRB 535'(1970). The protection accorded them under
this section is not dependent on the merit or lack of merit
of their concerted activities. See The Singer Company, Cli-
mate Control Division, 198 NLRB 870, footnote 5 (1972).
Nor to be entitled to such protection do employees en-
gaged in concerted activities first have to make a demand
upon the employer to remedy a condition they find objec-
tionable. N.L.R.B. v. Washington Aluminum Company, 370
U.S. 9 (1962).
18 These points however can only be obtained where invention disclosures
submitted by the inventors are approved by the Respondent and patent
ap?hcatwns are filed or published.
e Sec . 7 of the Act provides in pertinent part "Employees shall have the
right .. to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection .. .
350 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD
Upon, considering, the findings; supra, the evidence in-
cluding the testimony of both Tencza and Ogden estab-
lished that following the filing of their invention disclosure
with Respondent about August 4, 1971, and while it was
pending approval they took no direct action towards ob-
taining-Respondent's recognition of their invention disclo-
sure and following its rejection by Respondent on January
28, 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 work
on the step and continue process and their participation in
the demonstrations which were performed for Respondent
for 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 Manager
Myers and Project Manager Varker that certain informa-
tion be communicated and Tencza be permitted to visit
other facilities'to communicate such information dealt not
with the invention disclosure itself, which at the time such
requests were made had not been filed or was awaiting
approval, but with respect to work on holography in gener-
al. The purpose of these requests and the visits were to
stimulate interest in, holography in order that such work
might be continued or found to be applicable elsewhere
rather than to promote the invention disclosure. Neither
points or monetary benefits would inure to Tencza or Og-
den from such promotion since as previously noted these
are only derived from successful invention disclosures.
To the extent that any these requests and visits may have
indirectly 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 visited
included this process even assuming arguendo, although I
find it unnecessary to decide, such acitivites could consti-
tute a protected concerted activity, I find this was not the
cause of Tencza's termination.
Respondent which had evaluated the holography effort
including the step and continue process, which was never
perfected, and finding it to be inapplicable did permit
Tencza 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 Manager
Varker and Manager Myers established the presentation at
the Yorktown facility would have included representatives
of the Fishkill facility and Fishkill facility Manager
Aronstein's testimony established the step and continue
process had no practical application to the type work per-
formed there. Thus it cannot be said Respondent unduly
restricted Tencza's'right to communicate such information
as it had been agreed.
Having discredited Tencza's testimony concerning A he
reason allegedly given to him by Assistant General Manag-
er Doyle for his discharge, I do not find- the evidence suffi-
cient to establish Tencza was terminated because of any
efforts by him on-behalf of himself and Ogden to obtain
recognition from Respondent- for. their invention disclo-
sure. Rather, I credit the reasons given by Manager Myers,
Assistant Manager Doyle, and Project - Manager Varker
whom I find to be credible witnesses for the discharge of
Tencza who had-previously been placed on probation for
similar reasons and warned such further conduct could re-
sult in his termination.
Therefore, I find that the General Counsel has failed. to
establish by a preponderance of the evidence, ,as is his bur-
den, that Respondent discriminatorily discharged and de-
nied Tencza reinstatement in violation of Section 8(a)(1) of
the Act,,as alleged.20
Having found that Tencza's discharge and denial _of re-
instatement were not unlawful, I do not find it necessary to
consider whether an incident which occurred on April 20,
1972, subsequent to his discharge, whereby Tencza had ad-
mittedly refused to leave the office of Respondent's chair-
man of the board as directed resulting in his being physi-
cally ejected by the police constituted sufficient grounds
for barring his reinstatement. - -
CONCLUSIONS OF LAw
1. International Business Machines Corporation is an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. The evidence does not prove that the Respondent vio-
lated Section 8(a)(1) of the Act as alleged.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case, I hereby issue the follow-
ing recommended:
ORDER21
The complaint, as amended, herein - is dismissed in its
entirety.
20 To the extent General Counsel now contends contrary to the pleadings
that Tencza was terminated because of holography rather than to obtain
recognition for the invention disclosure it would appear although the issue is
not before me that, since it was within Respondent's prerogative to discon-
tinue work on projects which had not been perfected and found inapplica-
ble, those efforts, if any, by Tencza on behalf of himself and Ogden to
reverse such decision for which neither of them would receive points or
financial benefits would not constitute a protected activity under the Act.
21 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec 102
.48 of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.