International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America

BAKERY DRIVERS LOCAL NO. 276 107 be affected by a lawful agreement requiring membership in a labor organization as a condition of employment, POULTRY ENTERPRISES, INC., Employer. Dated ................ By.............................................................................................. (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. BAKERY DRIVERS LOCAL NO. 276, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WARE- HOUSEMEN AND HELPERS OF AMERICA, AFL and CAPI- TAL SERVICE, INC. Case No. 21-CC-130. July 13, 1953 ORDER DENYING MOTION TO MODIFY DECISION AND ORDER On September 8, 1952, the Board issued its Decision and Order' in the above-entitled proceeding, finding that the Respondent Union had picketed the employee and delivery entrances at the premises of retail store customers of Capital Service, Inc. (the charging party herein) in violation of Section 8 (b) (4) (A) of the Act, and enjoining the Respondent from so violating -that section of the Act. Our Order, however, did not prescribe the consumer picketing at the customer entrances in front of said retail stores which was in no way directed to the employees of those stores. Thereafter, in an ancillary injunction proceeding involving inter alia the power of a State court to exercise jurisdiction over the same labor controversy present in the instant case, the Court of Appeals for the Ninth Circuit, on appeal, held that the Act preempted the controversy to the exclusion of State law. In so holding, the court concluded, contrary to the position of the General Counsel in the injunction proceeding, that the consumer picketing at the customer entrances at the premises of the retail stores , addressed to the public, re- strained and coerced Capital Service's employees in violation of Section 8 (b) (1) (A) of the Act.' Capital Service has now filed a motion with the Board, requesting that the Decision and Order herein be modified in conformity with the opinion of the court, so as to find that the consumer picketing involved constituted unlawful restraint and coercion of Capital Service employees, and to enjoin such picketing. The General Counsel and the Respondent oppose this motion on the merits, contending that such picketing is not an unfair labor practice; the latter further contends that the consumer picketing issue (involving Capital Service employees) decided by the court in the injunction proceeding was not one 1100 NLRB 1092. 2 Capital Service, Inc., etc. v. N. L. R. B., 31 LRRM 2326 (C. A. 9), amended on rehearing 32 LRRM 2280. 106 NLRB No. 27. 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the issues framed by the complaint or litigated at the hearing in the instant unfair labor practice proceeding before the Board . For reasons appearing below , we find merit in the Respondent' s procedural objection to the granting of the motion. The complaint alleges that " Respondent . . . induced and encouraged employees of customers of Capital and their suppliers " ( emphasis supplied ) to engage in concerted action against their employers for the unlawful objective of forcing them to cease doing business with Capital Service . It further alleges such inducement to be violative of Section 8 (b) (1) (A), 8 (b) (4) (A ), and 8 (b) (4) (B). At the hearing , in which Capital Service did not participate because of its failure to attend despite due notice , the General Counsel stated that it was his "theory of the case" that the appeal to the consuming public through pickets was not violative of Section 8 (b) (4) (A) but the other picketing and conduct established inducement of employees of customers of Capital Service and their suppliers to action for an unlawful objective . The explicit language of the complaint , the explanation of the General Counsel at the hearing, and the failure of any party at the hearing to indicate that the effect of the picketing on Capital Service employees was involved in the proceeding before the Board , convince us that the Respondent was here being charged with and prosecuted for only the unlawful inducement of employees of customers of Capital Service and their suppliers , and not with infringing upon the rights of Capital Service employees within the meaning of Section 8 (b) (1) (A ). As noted above, such unlawful inducement of employees of the secondary employers was nevertheless alleged to have violated Section 8 (b) (1) (A ) as well as 8 (b) (4) (A ). The Board, however, in agreement with the Trial Examiner , found that, as all the evidence in the case was adduced on the question of such unlawful inducement and as such inducement did not constitute a violation of Section 8 (b) (1) (A), there was no evidence to support that allegation. There being no other basis on which the Section 8 (b) (1) (A ) violation was charged or litigated, the Board accordingly dismissed that allegation of the com- plaint. After the hearing , which it failed to attend, Capital Service, in excepting to the Intermediate Report, contended for the first time, as it now does again in the instant motion , that the cus- tomer entrance consumer picketing involved constitutes re- straint and coercion of its employees in violation of Section 8 (b) (1) (A ). This contention was not specifically discussed in the original Decision and Order but the Board was and is now of the view that this contention raises a new substantive issue not within the scope of the instant complaint as set forth above and not litigated at the hearing . We do not believe it to be within the province of a charging party under the Act, either by exceptions to an Intermediate Report or by post- decision motions, to seek to enlarge the basic scope of a com- plaint as issued by the General Counsel so as to raise issues which the responding party was not called upon to answer or to defend at the hearing , as a basis for the Board finding PITTSBURGH VALVE COMPANY log additional violations of the Act. As we see it, the issue of restraint and coercion of Capital Service ' s employees now attempted to be raised by the charging party involves an unfair labor practice, fundamentally different and distinct from the secondary boycott violations encompassed by the complaint and litigated at the hearing , i.e., forcing customers of Capital Service and their suppliers to cease doing business with Capital Service by inducing the employees of these secondary employers to withhold their labor. Although the court of appeals deemed it necessary to consider the impact of the consumer boycott on Capital Service's employees in order to decide the jurisdictional issue in the above -mentioned injunction case and stated in so deciding , that it regarded the Board to have the "power" on the facts presented before the court to find such action'a violation of Section 8 (b) (1) (A), and to enjoin it , "if in its discretion , it determines so to act," we do not believe that the court could have intended that this language be construed as an anticipatory ruling that such substantive issue was in fact raised and litigated in the com- plaint proceeding now under consideration by the Board. We therefore believe that a fundamental procedural rule against deciding an issue which has not been framed or raised by the pleadings and which has not been litigated before the Board, precludes our reaching this issue , regardless of what our views might prove to be on an independent consideration of the issue were it properly before us for determination. In view of the foregoing , Capital Service ' s motion to modify the Decision and Order herein is hereby denied. Chairman Farmer took no part in the consideration of the above Order Denying Motion to Modify Decision and Order. PITTSBURGH VALVE COMPANY, STERLING MANUFAC- TURING COMPANY, and' HARDWARE BRASS MANUFAC- TURING COMPANY and UNITED STEELWORKERS OF AMERICA, CIO, Petitioner. Case No. 6-RC-l256. July 13, 1953 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before W. G. Stuart Sherman, hearing officer . The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston , Murdock, and Peterson]. 1The Employer's name appears as amended at the hearing. 106 NLRB No. 12.