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

National Labor Relations Board - Board Decisions

Jul 13, 1953

106 N.L.R.B. 107 (N.L.R.B. 1953)

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.