M. A. I. Equipment Corp.

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