Serv- Air, Inc.

National Labor Relations Board - Board Decisions

Oct 21, 1969

179 N.L.R.B. 250 (N.L.R.B. 1969)

250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Serv-Air, Inc. and Smoke -Eaters Lodge No. 898,
International Association of Machinists,
AFL-CIO. Cases 16-CA-2744 and 16-CA-2780
October 21, 1969
SUPPLEMENTAL DECISION AND
ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On June 22, 1967, the National Labor Relations
Board issued its Decision and Order in the
above-entitled proceeding,' finding that Respondent
had engaged in and was engaging in certain unfair
labor practices within the meaning of Section 8(a)(3)
and (1) of the National Labor Relations Act, as
amended, and ordering the Respondent to cease and
desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
Specifically the Board found that Respondent had
violated Section 8(a)(3) and(l) by suspending
employee Jerry R Wolfe for violating the
no-solicitation rule which the Board had found to be
discriminatorily promulgated and enforced, and had
enjoined the Respondent from enforcing in Serv-Air,
Inc , 161 NLRB 382. The Board further found that
R.A. Chodrick had been suspended and demoted in
violation of Section 8(a)(3) and (1).
On January 17, 1968, the United States Circuit
Court of Appeals for the Tenth Circuit entered an
opinion and decree' enforcing in substantial part the
Board's 8(a)( 1), (3), and (5) Order in the
above-mentioned case. The Court, however, denied
enforcement of the Board's Order pertaining to the
no-solicitation rule and remanded the matter to the
Board for further appropriate proceedings on the
issue of the alleged discriminatory enforcement and
promulgation of the no-solicitation rule.'
Pursuant to the Court decree the Board on April
17, 1968, reopened the record in 161 NLRB 382 and
remanded the proceeding for further hearing on the
issues of the allegedly discriminatory promulgation
and enforcement of the no-solicitation rule. On
December 23, 1968, Trial Examiner Thomas F.
Maher issued his Supplemental Decision finding that
Respondent's no-solicitation rule was
discriminatorily enforced and that Respondent had
violated Section 8(a)(3) by discharging employees
pursuant to it. On April 30, 1969, the Board
reversed the Trial Examiner's finding that
Respondent's no-solicitation rule was
discriminatorily enforced and dismissed those
1165 NLRB No 117
'395 F 2d 557, enfg in part 161 NLRB 382
'In 161 NLRB 382 the Board also found that the same R A Chodrick,
who was found to have been discriminatorily suspended and demoted in
violation of Section 8(a)(3) and (1) in the instant case, was discrimmatordy
portions of the complaint alleging discriminatory
promulgation and enforcement of the no-solicitation
rule.'
In the light of its Supplemental Decision and
Order and the Court's decree the Board decided to
reconsider the instant case. Thereafter, on
September 4, 1969, the Board issued a Notice
granting all parties, including the General Counsel
the opportunity to file statements of position with
respect to the matters raised by its Supplemental
Decision and Order and the Court's decree. Such
statements were filed by the Respondent and the
General Counsel
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel
The Board has considered the statements of
position and the entire record in this proceeding
and, for the reasons set forth below, shall dismiss
the complaint in the instant proceeding with respect
to Wolfe.
As indicated above our finding in the instant
proceeding that Wolfe was suspended in violation of
Section 8(a)(3) was predicated on the fact that
Respondent was enforcing the same no-solicitation
rule the Board had previously found unlawful. In
view of our Supplemental Decision in that case,
however, the basis for finding Wolfe's suspension
unlawful has been eliminated.' Accordingly, we shall
dismiss the complaint with respect to Wolfe.6
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board orders that those portions of the
complaint alleging discriminatory suspension of
employee Jerry R. Wolfe be, and they hereby are,
dismissed.
laid off in violation of 8(a)(3) The Court, however, disagreed and
concluded that the layoff of Chodrick did not violate Section 8(a)(3) and
(1) and that as to him the Board's Order should not be enforced
'Serv-Air Inc, 175 NLRB No 128
'The General Counsel urges that the Board affirm its orginal decision
with respect to Wolfe's suspension, contending that the no-solicitation rule
was discriminatorily applied to Wolfe because Allen, the solicited
employee, was not actually on duty at the time, and Allen, not Wolfe,
provoked the incident for which Wolfe was suspended and Allen went
unpunished We reject this contention since the factual findings required by
the General Counsel's theory of the case are not supported by the record
'As noted above the Tenth Circuit denied enforcement to the Board's
finding in 161 NLRB 382 that Chodrick was discriminatorily laid off in
violation of Section 8(a)(3) The Trial Examiner in the instant case relied
in part on that finding as evidence of the Respondent's discriminatory
motivation toward Chodrick In our opinion the finding of discriminatory
motivation in the instant case with respect to Chodrick is amply supported
without relying on the Board's finding in 161 NLRB 382, we therefore find
it unnecessary to disturb our conclusion that Chodrick was discriminatorily
suspended and demoted herein
179 NLRB No. 42