344

DECISIONS OF NATIONAL LABOR RELATIONS BOARD

constitute " concerted activities for the purpose of mutual aid or protection" within the meaning of the Act. Thus , we find , in agreement with the Administrative Law Judge , that Tencza was terminated for reasons wholly unrelated to concerted protected activitiy.

International Business Machines Corporation and Albert D . Tencza . Case 3-CA-5004

October 25, 1974 DECISION AND ORDER

BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO

DECISION
STATEMENT OF THE CASE

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 National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record- and the attached 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.

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 International Business Machines Corporation (herein referred 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 Tencza 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 Section 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 f ull opportunity to introduce relevant evidence , to examine and cross-examine witnesses , to argue orally on the record , and to submit briefs. Upon the entire record 4 in this case and from my observation of the witnesses and after due consideration of the briefs filed by the General Counsel 5 and the , Respondent,' I hereby make the following:

ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed 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 credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wa ll 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 addition, 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 discharged in part for engaging in protected concerted activity which consisted of discussions with Respondent which potentially could have led to financial benefits for Tencza and Ogden . We disagree . The record establishes that the discussions between Tencza and his manager at the Endicott facility, 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 termmate 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 patent for Tencza ' s and Ogden's invention disclosure . In addition , these discussions 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

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 record and with the exception of one correction proposed by the General Counsel which was objected to by Respondent these motions were unopposed 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 inadvertently 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 opposed by the General Counsel , is hereby denied 6 The Charging Party did not submit a beef

214 NLRB No. 54

INTL. BUSINESS MACHINES CORP.

FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT

345

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 various locations throughout the United States including Endicott, 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 manufactured, sold, and distributed at its North Castle and Endicott facilities products valued in excess of $50,000 which were shipped directly from those facilities to states located outside the State of New York.

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 Ogden had worked together on inventions disclosures and had received "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 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 department. Senior Engineer Joseph Kirk and Staff Physicist James Bupp who performed the technical evaluations of the invention disclosure and submitted them to Patent Attorney Johnson confirmed the existence of these unresolved technical problems.

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,

Tencza acknowledged he did not protest or seek reconY sideration of the decision.
Prior to submitting their invention disclosure Tencza and Ogden participated in several demonstrations at which the 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 projection printing technique. On May 25, 1971, the committee's audit report recommended that holographic projection printing 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 projection printing could not be determined at that time. "

New York, plant as an engineer-physicist from about August 1966 until his termination on February 17, 1972. Previously he had been employed by Respondent as a field engineer at its Patterson, New Jersey, facility while continuing his education. Tencza along with Dean Ogden who held the position of technician, senior lab specialist, worked in the manufacturing research department until about June 12, 1971, when they were transferred to the process engineering department 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 Development Engineer Manager Jack McCreary, worked under 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 department 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 holographic exposure system has been constructed which permits projecting circuit patterns over large fields." Following 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 campaigning 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

Another demonstration, the date of which was not established,9 was given by Tencza and Ogden for Manager Williams for the purpose of determining whether the step and continue process was--applicable to'the C project. According to Ronald Doyle, who was the assistant general manager for circuit packaging operations, this demonstration resulted from Tencza's contention the step and continue process 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 proposal to assure him the laser power or the resist could be made
7 Although invention disclosures are closed they are subject to being reopened. 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 or early August 1971 between Manager Myers, Ogden, and himself that Ogden stating the information should be communicated 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.-

compatible to make an economic system. Although he-subsequently 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 system which they would otherwise go ahead with, the proposal was never submitted.- While Tencza at -one point acknowledged Williams had asked him to prepare an economic 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 evaluation.

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 laser from a vendor and he and Ogden performed some additional experiments. According to Assistant General Manager Doyle, an audit -report prepared by Manager Williams had concluded holography would not have technical or economical advantages over the regular photo processing approaches. A further demonstration occurred about June 17, 1971, at Manager Myers' request in order -to bring his, department 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 completing his review of the holographic effort concluding holography was not applicable to the C3 program he had informed Manager Williams the holographic effort with respect 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 discontinued except for the laser experiments already being conducted 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 communicated 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 conversation between Ogden, Manager Myers, and himself upon their request that Myers communicate the information 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.

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 information, 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. Manager Myers acknowledged having conversations with Tencza in June, July, and August concerning the possible use of holography elsewhere within the Company and on one occasion 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 occurring on August 3, 1971, a meeting was held between Varker, Myers, Tencza, and Ogden at which the termination of holography was discussed as well as their new work assignments. Tencza's version of the meeting was while discussing the termination of holography he had asked Varker if 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 the technical considerations upon taking out a copy of the audit 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 testified 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 technical 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 follow up on the items and wasn t pushing to reopen holography for, the C3 program. Ogden substantially corroborated Tencza's version of the meeting adding, that upon his asking if Myers would help it was decided, he could -or would help.

Tencza testified during another conversation in late July

10 Tencza did not testify what the alleged results were.

INTL. BUSINESS MACHINES CORP.

347

Manager Myers' version was that while discussing holography Varker informed Tencza if he could present a complete 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 location and Varker was assured there was an interest at that location. During the conversation after Tencza had mentioned 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 something to that effect. Varker also assured them the laboratory 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 economically superior to the one they were using. Thereafter following the meeting Tencza was permitted to contact other persons within the Company and as a result of conversations with Dr. Wilczynski at the Yorktown facility and Jack Underhill at the Burlington, Vermont, facility, 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 wanted to stop on his return trip from the Yorktown facility. With respect to the Fishkill facility Tencza stated in August 1971 that he had contacted Dr. Wajda at the Fishkill facility and, after representing to him that they had a holography 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-examination he acknowledged he wasn't familiar with what the Fishkill facility was doing-in any department. Jesse Aron-

stein, who was the manager of future manufacturing system at the Fishkill facility, denied the step and continue process had any practical application to the type work performed 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 representatives present. Further, Myers also testified, in denying Tencza's request to visit the Fishkill facility, he had suggested Tencza should first present them with his written information and after reviewing it if they were still interested 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, including 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 Ogden,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 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 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 present 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. Boedecker 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 October 3, 1972, by the Regional Director for insufficient evidence, but subsequently reinstated, in describing his conversation 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 directing 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.

11 Project Manager Varker stated the only facilities which had work applicable to holography besides the Endicott facility were those facilities located at Fishkill, Yorktown, and Burlington

13 Tencza's complaint to Boedecker was treated as invoking Respondent's open door policy under which employees are entitled without being discriminated =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 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 Boedecker, 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 President 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 conversation 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 termination. 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 do not find plausible his testimony that, if he had been informed 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 Tencza Manager Myers, Assistant Manager Doyle, and Project Manager Varker who participated in the decision to terminate 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 terminated, 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 reiterated, such future conduct could result m his immediate dismissal. Examples of such conduct in addition to Tencza's representation 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 Tenc17 Project Manager Varker denied Tencza ' s performance was a reason for his discharge. Accordingly, the evidence relating to such performance will not be discussed

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 declining 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 Hermann ,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 Boedecker 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 conversation 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 subsequent 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 informed 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 investigate his dismissal and following his investigation by letter dated February 25, 1972, had informed Tencza his dismissal was upheld

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 process, Tencza was reluctant to perform the assignment contending 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.

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 because of holography which would have included the invention disclosure . Another reason for which he was discharged , 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 described Tencza ' s persistence in repeatedly arguing a point of view on holography as an example. Varker cited as examples of the excessive use of management time Tencza's efforts to obtain various managers' approval for the subscription to the laser abstracts magazine and having to explain to Tencza on August 3 why the program had been terminated by the Respondent.

Project Manager Varker and Manager McCreary testified 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 approved his plan did not deny it.

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 Tencza because he had engaged in concerted activities for the purpose of collective bargaining or mutual aid or protection. 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, Building 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, 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 demand upon the employer to remedy a condition they find objectionable. 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.

Manager McCreary stated on another occasion, while reviewing Tencza's assignment with him, Tencza had informed 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 recalled 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 September 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 informed him he could go to San Jose for an interview, McCreary denied it. Although Project Manager Varker testified 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 employees for a technical assignment testified about late No-

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 Having discredited Tencza's testimony concerning A he reason allegedly given to him by Assistant General Manager Doyle for his discharge, I do not find- the evidence sufficient 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 disclosure. 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 result in his termination.

Upon, considering, the findings; supra, the evidence including the testimony of both Tencza and Ogden established 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 obtaining-Respondent's recognition of their invention disclosure and following its rejection by Respondent on January 28, 1972, for-lack of present technical support and technical reasons they did not as admitted by Tencza either protest 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 application were but part of their normal work duties.
The evidence with respect to their requests of Manager Myers and Project Manager Varker that certain information 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 general. 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 Ogden 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 disclosure since the step and continue process was a part of holography and the demonstrations at the facilities visited included this process even assuming arguendo, although I find it unnecessary to decide, such acitivites could constitute 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 Fishkill facility, which he had requested whereby he was permitted to communicate information on holography including the step and continue process. With respect to the Fishkill 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 performed there. Thus it cannot be said Respondent unduly restricted Tencza's'right to communicate such information as it had been agreed.

Therefore, I find that the General Counsel has failed. to establish by a preponderance of the evidence, , as is his burden, that Respondent discriminatorily discharged and denied Tencza reinstatement in violation of Section 8(a)(1) of the Act,,as alleged.20
Having found that Tencza's discharge and denial _of reinstatement 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 admittedly refused to leave the office of Respondent's chairman of the board as directed resulting in his being physically 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 Section 2(6) and (7) of the Act. 2. The evidence does not prove that the Respondent violated 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 following 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 discontinue work on projects which had not been perfected and found inapplicable, 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.