Serv- Air, Inc.

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