M. A. I. Equipment Corp.

National Labor Relations Board - Board Decisions

Jun 10, 1970

183 N.L.R.B. 157 (N.L.R.B. 1970)

M.A.I. EQUIPMENT CORP.
M. A. I. Equipment Corporation and John A.
Frantz. Case 8-CA-5484
June 10, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On November 17, 1969, Trial Examiner Melvin
Pollack issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in unfair labor practices as alleged in the
complaint, and recommending that the complaint
be dismissed in its entirety, as set forth in the at-
tached Trial Examiner's Decision. Thereafter, the
General Counsel filed exceptions to the Trial Ex-
aminer's Decision and a supporting brief. Respon-
dent filed cross-exceptions and a brief in support of
the Trial Examiner's Decision.
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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner as herein modified.
We agree with the Trial Examiner's dismissal of
the complaint insofar as it alleges that Respondent
violated Section 8(a)(3) of the Act. However, we
do not agree with the Trial Examiner's dismissal of
the allegation that Respondent, through Field
Manager Schneck, violated Section 8(a)(1) of the
Act by threatening employee John Frantz by. say-
ing, "Furthermore, we know you are the instigator
of the union and when we get you this time it is
going to be too late for you to do any thing about
it." The Trial Examiner, while crediting Frantz' ver-
sion of the incident, concluded that the threat was
isolated and did not warrant a finding of a violation.
We disagree. Such an unambiguous threat of
discharge warrants an 8(a)(1) unfair labor practice
finding and a remedial order.'
THE REMEDY
Having found that Respondent engaged in unfair
' In affirming the Trial Examiner's dismissal of the 8(a)(3) allegations,
we are satisfied that the discharge was not in fact motivated in any respect
by the complainant's union activities
2 In the event this Order is enforced by a judgment of a United States
157
labor practices, we shall order Respondent to cease
and desist therefrom and to take certain affirmative
action which we find necessary to remedy and
remove the effects of the unfair labor practices and
to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act.
2. Teamsters Local Union No. 412, International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is a labor
organization within the meaning of Section 2(5) of
the Act.
3. By threatening John A. Frantz with discharge
because of his union activities, Respondent violated
Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practice is an un-
fair labor practice affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
5. Respondent has not engaged in any conduct
in violation of Section 8(a)(3) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respon-
dent, M. A. I. Equipment Corporation, Youngs-
town, Ohio, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Threatening its employees in a manner viola-
tive of Section 8(a)(1) of the Act.
(b) In any like or related manner interfering
with, restraining, or coercing its employees in the
exercise of their rights guaranteed in Section 7 of
the Act.
2. Take the following affirmative action which
will effectuate the policies of the Act.
(a) Post at its Brookpark, Ohio, office, copies of
the attached notice marked "Appendix."2 Copies of
said notice, on forms provided by the Regional
Director for Region 8, after being duly signed by
Respondent's representative, shall be posted by it
immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where
notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall be changed to read "Posted Pur-
suant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board -
183 NLRB No. 17
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
covered by any other material.
(b) Notify the Regional Director for Region 8, in
writing, within 10 days from the date of this Order,
what steps have been taken to comply herewith.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten our employees in a
manner violative of the provisions of Section
8(a)(1) of the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our em-
ployees in the exercise of their rights guaran-
teed in Section 7 of the Act.
M. A. 1. EQUIPMENT
CORPORATION
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board's Office, Room 1695 Federal Office Build-
ing, 1=240 East Ninth Street, Cleveland, Ohio
44199, Telephone 216-522-3715.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MELVIN POLLACK, Trial Examiner: This case was
heard at Youngstown, Ohio, on August 5, 1969,
pursuant to a charge filed on May 21, 1969, and a
complaint issued on June 30, 1969. The complaint
alleges that Respondent threatened John A. Frantz
with discharge and discharged him in violation of
Section 8(a)(1) and (3) of the National Labor
Relations Act, as amended. Upon the entire record
in the case,' my consideration of the oral argument
and briefs of the General Counsel and the Respond-
The record is corrected pursuant to Respondent 's letter of August 15,
1969
ent, and my observation of the witnesses, I make
the following:)
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Respondent M.A.I. Equipment Corporation, a
New York corporation, is engaged in the leasing
and servicing of data processing equipment.
Respondent has offices located in various States.
Respondent's annual revenues exceed $1 million,
which includes revenues in excess of $50,000 for
services performed at corporations located outside
the State of New York. I find that Respondent is an
employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Teamsters Local Union No. 412, International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein
called the Union, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Discharge of Frantz
Respondent has branch offices which are divided
into areas, each area group consisting of a field
manager and customer engineers . The customer en-
gineers service and maintain data processing equip-
ment leased by Respondent. Frantz was one of five
customer engineers employed by Respondent in the
Youngstown-Akron area, which is administered by
a branch office near Cleveland, Ohio. In October
1967, Frantz and James Hudson spoke to their
three fellow employees and later to two customer
engineers in Cleveland about starting a union. All
but one or two of the men spoken to favored the
idea. In January 1968, Frantz spoke to Union Pres-
ident Marino, who "gave [him] the procedures in
setting up a union ." Frantz saw Marino again 4 or 5
days later and was introduced to the Union's busi-
ness agent . Late in January, Customer Engineering
Branch Manager Ken Kitterman told Frantz that he
was being transferred to the Cleveland area. Frantz
asked for and received permission to take a 2-week
vacation. After his vacation, he asked for and was
allowed to work another week in the Youngstown
area. During this week, he asked Kitterman if he
was being transferred because he was "trying to or-
ganize a union." Kitterman said he was sorry to
hear that but "he couldn't do anything about it and
[Frantz] should be capable of bearing the con-
sequences." Frantz "flatly refused" to transfer
"under those conditions." About this time, Com-
pany President Schwalm received a letter from
Frantz and Hudson complaining about "being
harassed" for union activities. Vice President Kir-
M.A.I. EQUIPMENT CORP.
gan advised Frantz by telephone to disregard the
transfer and arranged a meeting with Frantz and
Hudson.
Kirgan and his assistant, Sotirios Kalfas, met with
Frantz and Hudson in February 1968. Working
conditions were discussed at length and Frantz said
he and Hudson felt they were being harassed
"because of our attempt at unionizing." Kirgan said
he would make changes "for the better" in working
conditions and assured Frantz and Hudson that
there would be no further harassment of them. He
added that Frantz need not worry about transfer-
ring to Cleveland. Frantz remarked that "the only
way to work for [Respondent] was under Union
contract." Kirgan said he could see no advantage in
having a union contract. Kirgan later told Hudson
in private that he could not understand why Hud-
son, a married man with five children, would get in-
volved in union activities. He said he would make
promoting Hudson "his pet project."
Field Manager John Schneck called Frantz after
this meeting and said he wanted to talk to Frantz
and Hudson. At a meeting held "well into Febru-
ary," Schneck told Frantz and Hudson that things
would get better because of Kirgan's visit but that
they must change their attitudes which "were very
poor." Frantz commented that they could still file a
charge with the Labor Board and Schneck replied
that "anybody that would do anything to hurt the
Company is going to end up getting hurt worse
themselves." Frantz and Hudson said they felt the
Company wanted to get rid of them "because of the
Union business." Schneck said, "I can assure you
that when you get fired it will not have anything to
do with the Union."
According to Frantz, Schneck was "very critical"
of his work and Hudson's after this meeting,
criticizing them for long lunch hours, not reporting
on time, "plus work performance, not doing a good
job, turning in IR's late and putting the wrong dates
in on an IR,2 sending my timecard in late." Frantz
and Hudson filed unfair labor practice charges with
the Board in March and withdrew them in April.'
In April 1968, Schneck evaluated Frantz' per-
formance as a customer engineer and gave him the
lowest possible rating.' He noted, inter alia, that
Frantz' quantity of work, judgment, and attitude
were unsatisfactory, that he tended to be lazy and
uninterested, that he was not dependable, and that
he avoided responsibility and got little accom-
plished. On April 30, he discussed his evaluation
with Frantz, who wrote on the a"aluation that
Schneck was "extremely biased" against him, so
'The customer engineer completes an Incident Report ( IR) for each
maintenance or repair call he makes
3 Frantz testified that they withdrew the charges because " there was no
more harassment " and Schneck "was actually friendly towards me and
Hudson " Hudson said they withdrew the charges because the other em-
ployees ' " reactions were not positive "
Hudson also received a very poor evaluation from Schneck
s Frantz testified that he attended a meeting in Cleveland on March 25,
that the meeting ended at 10 a in , and that after this meeting , or another
159
"resulting in this outrageous grading of my evalua-
tion."
On May 7, 1968, Schneck told Frantz that he had
to work an 8-hour day, that he was coming to work
late, and taking long lunch hours and this had to
stop. In June 1968, an official at the Cleveland of-
fice warned Frantz that he would be discharged "if
he couldn't perform" his job.
On March 25, 1969, Customer Engineer Eckert
asked Schneck "how long was that meeting in
Cleveland yesterday." Schneck said about an hour
and a half and Eckert complained that "he had
worked his ass off in Sharon and at Westinghouse
and he hadn't heard or seen from John Frantz."'
Schneck checked the Incident Reports for March
24 turned in by Eckert and Frantz. Eckert's reports
showed he had been at Westinghouse all day and
Frantz' report showed that he had attended a meet-
ing in the morning and had worked at
Westinghouse in the afternoon. Schneck also
checked the slip record of calls received by
Respondent's answering service on March 24. The
slip showed that Eckert had called in from
Westinghouse in the morning and again in the after-
noon. It also showed one call from Frantz about 3
p.m. without any notation where Frantz was or
where he was going.
Schneck followed Frantz on March 27. He ob-
served that Frantz arrived at Westinghouse between
9:20 and 9:40 a.m., that he left Westinghouse at
11:20 to answer a call at Golden Dawn, and that he
did not get to Golden Dawn, which is a few min-
utes' drive from Westinghouse, until some time
after 2 p.m. Frantz' reports for March 27 indicate
that he started work at Westinghouse at 8:30 a.m.,
had lunch and worked at Westinghouse until 2:10
p.m., and completed the day at Golden Dawn from
2:10 until 5:15 p.m.6
Frantz worked in Youngstown on the morning of
April 15 and attended a meeting in Cleveland later
that day to assist in the evaluation of a sale. The
meeting ended at 9 p.m. and Frantz arrived home
at 11 p.m. On April 21, 22, and 23, Frantz worked
in Akron on the installation of a machine for the
Quickie Company. He remained overnight in
Akron on April 21 and 22 because he had to work
a considerable amount of overtime. Schneck asked
Frantz if he had turned in his overtime. Frantz said
he had not and Schneck said he would give him the
time off. Frantz returned home on Wednesday,
April 23, and the next day notified the Cleveland
office that he was taking the day off in lieu of his
overtime work.
meeting in Cleveland he attended about this time, he ran out of gas on the
Ohio turnpike and returned home because he did not get refueled until
"well in the afternoon "
' Schneck testified that a check of Frantz' reports and the answering ser-
vice's slips for a month or two before Eckert's complaint on March 25
showed that Frantz either did not inform the answering service where he
was "when he was going to a new account" or that "he was making his IR's
out for where he was not " These reports and slips were not put into
evidence
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Frantz returned to the Quickie Company in
Akron on Friday, April 25. Schneck arrived about
3 p.m. and Frantz told him he could not go much
further without the digit selectors on order.
Schneck said to let it go and the two men went to a
restaurant for coffee. According to Frantz, as they
left the restaurant, Schneck said, "I have a bone to
pick with you" and asked him, "What is this busi-
ness of you taking a day off?" Frantz said he had
called in on Thursday to report he was taking the
day off in lieu of overtime and he could not see why
Schneck was bringing the matter up when Schneck
had told him a few days before that he would give
him a day off. Schneck said, "When you get a day
off I will tell you when you are going to be off." He
went on to say that he wanted Frantz to work 8
hours a day. Frantz replied that he was working 15
hours a day and not getting paid for his overtime.
The two men "got into a fairly heated argument"
and Frantz challenged Schneck's right to call him
Sunday night at 9 and change his working hours.
He said the next time Schneck did so he wanted it
in writing because he believed "it was in violation
of the Wage and Hour Act or the Labor Act."
Schneck replied, "Are you starting that same ...
again . Furthermore, we know you are the instigator
of the union and when we get you this time it is
going to be too late for you to do anything about
it." Frantz said he "didn't appreciate those threats
leveled at me," got into his car, and left for
Westinghouse.
According to Schneck, he told Frantz in the
parking lot that he "was disappointed in him," that
he thought Frantz had changed but that he found
out that Frantz "wasn't doing his job and that if he
didn't change, I would have to let him go." Frantz
asked Schneck what he meant about Frantz not
doing his job and Schneck said doing the job meant
"putting in eight hours, coming to work on time,
not taking long lunch hours, and not going home
early." Frantz got "kind of indignant and huffy,"
said a couple of times he "didn't like the thought of
being threatened," and Schneck left.
That night, Frantz sent the following telegram to
Company President Schwalm:
DEAR MR. SCHWALM
IT IS APPARENT THAT THE MAI CO IS NOW BOLD
ENOUGH TO MAKE AN OBVIOUS ATTEMPT TO
RELEASE AN EMPLOYEE WHO WAS ONCE
ACTIVELY ENGAGED IN ORGANIZING AN MAI CE
TEAMSTERS UNION NAMELY THE CE MANAGER MR
KITTERMAN AND HIS STOOGE JOHN SCHNECK. I
WAS AN EMPLOYEE FOR IBM FOR A PERIOD OF 16
YEARS AND NOW HAVE BEEN AN EMPLOYEE OF
MAI FOR 3 YEARS AND I SIMPLY REFUSE TO
TOLERATE THREATS LEVELED AT ME BECAUSE OF
MY PAST INVOLVEMENT IN TRYING TO ORGANIZE
A UNION. THE ONLY JUSTIFIED RECOURSE FOR ME
IS TO EMBARK ON A VIGOROUS CAMPAIGN TO
ORGANIZE A UNION IN THE CE DIVISION IN ORDER
TO STOP THE MANY ABUSES DICTATED BY
EXECUTIVE AND LOCAL MANAGEMENT.
JOHN FRANTZ
Schwalm replied on April 28 that he was "ar-
ranging to have Mr. Jerry Kalfas, as my personal
representative, contact you to discuss this matter in
detail."
On April 30, Eckert told Frantz that Schneck was
checking on him and "I think he is going to fire
you." At 4:40 p.m. on May 2, Frantz received in-
structions to call Cleveland. He called and spoke to
Custom Engineering Branch Manager Kitterman,
who asked him where he had been all day, saying
he had been trying to get in touch with Frantz all
day. Frantz said he had been at Miller Trucking.
After speaking to Kitterman, Frantz called the an-
swering service and spoke to operator Janet
Petrone. She informed him that she had received
one call for him that day, at 4:20 p.m., and had told
the caller that Frantz had called in at 4:12 and was
on his way to Westinghouse. Later that day, Frantz
sent the following telegram to President Schwalm:
DEAR MR. SCHWALM:
I APPRECIATE YOUR KIND REPLY TO MY
TELEGRAM BUT IT'S BEEN A WEEK SINCE YOU
PROMISED YOUR EMMISARY WOULD DISCUSS THE
MATTER IN DETAIL. AS I STATED I WILL NOT
TOLERATE THREATS LEVELED AT ME TO BE FIRED
BECAUSE OF MY PAST INVOLVEMENT IN TRYING
TO ORGANIZE A TEAMSTERS CE UNION IN MAI
CLEVELAND. IT IS AN OBVIOUS MOVE BY MAI TO
DELAY THIS MATTER AND SINCE YOU PERSIST AND
NO DOUBT INFORM LOCAL MANAGEMENT I HAVE
BEEN UNDER CONSTANT SURVEILLANCE BY KEN
KITTERMAN AND HIS STOOGE JOHN SCHNECK IN
ORDER TO MAKE A LYING BOOK ON ME TO FIRE
ME. I AM ABSOLUTE IN MY DETERMINATION IN
ENGAGING MY LAW FIRM OF CUSIK MADDEN AND
ACEKER TO FILE CHARGES WITH THE NLRB IN
WASHINGTON D C UNLESS YOU MAKE A DISPLAY
OF SINCERITY BY AFFORDING ME AN IMMEDIATE
INTERVIEW.
JOHN FRANTZ
Frantz, pursuant to instructions from Schneck,
reported to the Cleveland office on May 8, 1969,
where Staff Assistant Kalfas asked him for his
resignation. Frantz refused to resign and Kalfas
handed him the following letter of discharge dated
May 7, 1969, and signed by Kalfas:
Dear Mr., Frantz:
This letter is to confirm in writing the decision
of MAI Equipment Corp., to discharge you as
an employee of the Company. Although
discharged employees are normally informed
orally, we believe that the exact reasons for
your discharge should be made absolutely clear
to you in writing as well as by a personal inter-
view.
A thorough review was made of your personnel
file before reaching the decision to discharge
you. Specifically, it shows that you have a poor
work performance record, you are not putting
in a full eight-hour day, you take excessively
long lunch hours, you report late and leave
early, you falsely report time on IRS in order to
M.A.I. EQUIPMENT CORP.
show that a full day's work has been put in,
you do not report in to the answering service,
and you are antagonistic toward Branch Per-
sonnel.
A serious consequence of your behavior has
been the disruption of morale among your four
fellow CEs. Your conduct has adversely ef-
fected the performance and smooth function-
ing of the entire unit. The other men feel that
you are taking advantage of your position
while they are working a full day and conform-
ing to company rules and regulations.
The review of your personnel record reveals
that although there was some improvement
subsequent to your interview with Mr. Oliverio
in June, 1968, you resumed your former
behavior of poor work habits and performance
shortly thereafter.
For all of the reasons above the Comapny has
decided to discharge you. This decision is all
the more unfortunate because you have the ex-
perience and ability to be a good CE. How-
ever, your actual performance, work habits
and attitude have not permitted you to live up
to your potential.
I am sorry that we have been compelled to
take this action.
Sincerely,
Staff Assistant to Vice
President-
Customer Engineering
B. Analysis and Conclusions
It is undisputed that Frantz was a competent
worker. The officials in charge of Respondent's in-
stallations at the Westinghouse and Golden Dawn
plants testified that Frantz' work performance was
very good or excellent. Schneck himself testified
that Frantz had "a very good capability" and that
he gave him a lot of special assignments "like
teaching or wiring boards." It appears, however,
apart from special assignments when Frantz would
put in his time, Frantz tended to come in late, take
long lunch hours, and leave early. In his April 30,
1968, appraisal of Frantz' work, Schneck marked
Frantz "unsatisfactory" for quantity of work. On
May 7, 1968, Schneck told Frantz he had to put in
an eight-hour day and about June 30, 1968, a
Cleveland official warned Frantz that he would be
discharged "if he couldn't perform."
' Jacob Till testified that he and the other customer engineers had to take
calls which Frantz "left on the books" and that Frantz had not been "too
prompt or punctual as long as I have known him "
e According to Schneck, his recommendation was turned down because
Frantz did not have "a sustained period of good work "
' Schneck said he knew Frantz was involved with a union around January
161
While the record indicates that Frantz continued
to cut corners on time,' Schneck was apparently
satisfied with Frantz' overall performance and
recommended him for instruction work at Respon-
dent's reconditioning plant in late 1968.8 However,
on March 25, 1969, Eckert complained that Frantz
had not been around to help with the Westinghouse
work the day before. Schneck checked out Frantz'
March 24 Incident Reports and kept him under sur-
veillance on March 27. He also checked out Frantz'
Incident Reports for the past month or two.
Although Schneck's investigation allegedly con-
vinced him that Frantz had falsely reported working
at Westinghouse on the afternoon of March 24,
that Frantz on other occasions had not accurately
reported his whereabouts, and that Frantz was not
keeping proper working hours, he said nothing to
Frantz at this time about these matters.
About a month later, on April 24, Frantz took a
day off in lieu of overtime without first clearing
with Schneck. Frantz credibly testified that
Schneck reprimanded him the next day for taking a
day off without permission and also for not working
8 hours a day. It appears from the testimony of
both Frantz and Schneck that Frantz, who had
recently put in a lot of overtime work, became in-
dignant. Frantz gave quite detailed testimony of
what he said in his indignation and what Schneck
answered. Schneck did not elaborate but in effect
denied that anything was said about Frantz' past or-
ganizing efforts.' He agreed with Frantz that Frantz
had declared he did not like threats against him.
Frantz' version of the conversation is consonant
with surrounding events. I am not impressed by
Schneck's "bobbed" version of the conversation,
nor by his playing down of his knowledge of Frantz'
prior union activity. I therefore credit Frantz'
testimony that he declared that he was working not
8 but 15 hours a day without overtime pay; that he
alluded to the Wage and Hour Act or the Labor
Act and challenged Schneck's right to call him on a
Sunday to change his working hours; and that
Schneck made a coarse reference to his past or-
ganizing efforts and threatened him with discharge
as a union instigator.
Regardless of Schneck's threat, Frantz' past or-
ganizing activity had nothing to do with Schneck's
reprimands and Frantz showed himself entirely un-
willing to accept these reprimands. That the repri-
mands were justified is hardly open to question.
Frantz had in fact taken a day off without clearing
with Schneck and he not infrequently came in late,
took long lunch hours, and left work early. In con-
sequence, as Jacob Till testified, the other customer
engineers had to take calls "left on the books" by
Frantz.10 The General Counsel concedes Frantz'
or February 1968 because Frantz had mentioned it to him, but since then
Frantz had said nothing to him about a union
10 Schneck's April 30, 1968, appraisal of Frantz rated his "Quantity of
Work" as "Unsatisfactory " A memorandum prepared by Kalfas in March
1968 noted that Eckert felt that Frantz " in particular" was not carrying his
portion of the workload in the Youngstown area
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shortcomings as an employee but contends that
these shortcomings existed throughout his employ-
ment with Respondent, the Respondent was willing
to put up with them because Frantz was a skilled
employee, and that Respondent would have con-
tinued to put up with them but for Frantz' past
union activity and his telegram declaring his inten-
tion to "embark on a vigorous campaign to or-
ganize a union in the CE division." In support of his
contention, the General Counsel argues that
Respondent exaggerated Frantz' misconduct,
reneged on its statement in its reply to Frantz' tele-
gram of April 26, 1969, that Kalfas would "contact
[him] to discuss this matter in detail," and put
Frantz under surveillance.
As the testimony of James Hudson and Jacob Till
indicates that customer engineers "fudge" their In-
cident Reports to show a full day's work, and as
Respondent could hardly have been unaware of
Frantz' practice in this respect since it knew he
took advantage of time, I give little weight to
Respondent's assertion in its letter of discharge that
Frantz "falsely reported[ed] time on IRs in order to
show that a full day's work had been put in."" I
also discount Respondent's charge in the letter of
discharge that Frantz did not "report in to the an-
swering service." Respondent offered no supporting
evidence and answering service operators Janet
Petrone and Phyllis McGregor testified that Frantz
regularly called in and was no more difficult to
reach at his reporting locations than the other
customer engineers . These are comparatively minor
matters, however, and do not materially affect
Respondent's charge that Frantz' failure to put in a
full workday resulted in "a poor -Mork performance
record" and adversely affected the morale of the
other customer engineers.
As to the alleged surveillance of Frantz, it ap-
pears that Eckert told Frantz on April 30 that
Schneck was checking on him and that Custom En-
gineering Branch Manager Kitterman may have
made an unfounded statement to Frantz on May 2
that he had vainly tried to reach Frantz all day.
" Although Schneck's investigation of Eckert 's complaint on March 25
that Frantz had not come in the previous afternoon allegedly convinced
Schneck that Frantz had falsely reported working at Westinghouse that af-
These incidents, and Kalfas' failure to meet with
Frantz, do not warrant an inference that Respon-
dent was trying to build a case against Frantz, for it
is undisputed that Respondent long had had good
reason to discharge Frantz.
Respondent, it is true, countered the efforts of
Frantz and Hudson in early 1968 to promote a
union by directing Frantz to transfer to the Cleve-
land area and by holding out the promise of promo-
tion to Hudson. Against this background and
Schneck's threat of discharge, Frantz' declaration
that he would resume his organizing activity must
be assumed to have influenced Respondent's deci-
sion to discharge him. The question, however, is
whether the decision was motivated "in whole or in
substantial part" by Frantz' past union activity and
his announced intention to resume such activity.
National Plywood, Inc., 172 NLRB No. 141. The
customer engineers had shown no interest in union
representation since early 1968 and they resented
Frantz' failure to carry his share of the workload.
Frantz rejected Schneck's reprimands on April 25
and Respondent could fairly conclude from Frantz'
telegrams to Company President Schwalm that he
would consider any criticism of his work habits as
reprisal for his past union activity. I find under all
the circumstances that Respondent's discharge of
Frantz was not substantially motivated by his past
and prospective union activity and hence that the
discharge was not violative of Section 8(a)(1) and
(3) of the Act.
Schneck's threat to discharge Frantz as a union
instigator was made when no organizing activity
was in progress and I have found that Frantz was
discharged for good cause. I therefore do not be-
lieve that Schneck's isolated threat warrants an
8(a)(1) unfair labor practice finding.
RECOMMENDED ORDER
For the foregoing reasons, I recommend that the
Board issue an order dismissing the complaint in its
entirety.
ternoon, Schneck never brought the matter to Frantz ' attention I therefore
do not believe that this incident substantially contributed to Respondent's
decision more than a month later to discharge Frantz