Poultry Enterprises, Inc.

National Labor Relations Board - Board Decisions

Jul 13, 1953

106 N.L.R.B. 100 (N.L.R.B. 1953)

100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nor informed of the result . We find that she is not a supervisor.
We shall include her.
LaPoint, chief of the photo analysis and editing crew, in-
structs and oversees from 2 to 5 employees . For the past 6
months the number has not exceeded 3. His renumeration is
$1.25 an hour, which is the standard journeymen ' s rate for
cartographic draftsmen at the Employer ' s plant and is less
than the rate received by some of the men working under him.
We find on the conflicting evidence that he has no power to
make effective recommendations regarding personnel matters
and that he is not a supervisor . We shall include him.
We find that the following unit is appropriate for the purposes
of collective bargaining within the meaning of Section 9 (b) of
the Act : All technical , 7 office clerical , and maintenance em-
ployees at the Employer ' s Chester , Vermont, establishment,
excluding salesmen , the advertising manager, professional
employees , guards , and supervisors as defined in the Act.'
5. The Petitioner requests that the payroll period for
determining eligibility for voting in the election directed
herein be established as May 18, 1953 , rather than the period
immediately preceding the date of our Decision and Direction
of Election . In support of this request , it says that a strike
occurred on May 19 , the day before the hearing , and that
certain employees were then discharged . We are administra-
tively advised, further , that the Petitioner on May 22 filed
unfair labor practice charges predicated upon these discharges.
However , these events could not make necessary the use of a
payroll period other than that customarily utilized .9 Moreover,
we are administratively informed that the Regional Director
on June 9 refused to issue a complaint on the basis of the dis-
charges 10 and that the Petitioner did not appeal from that action
within the period allowed. Accordingly , for the purpose of in-
vestigation of representation the dischargees are no longer
employees and are not entitled to vote in the election directed
herein. 11
[Text of Direction of Election omitted from publication.]
7 We adopt the stipulation of the parties to include the map editors, except for Kendall
Crocker, son of one of the partners.
8 It was agreed that Adams, Bryant, and Young are supervisors . In addition , we exclude as
supervisors : Howe, Thurston, and Edward DeGroff.
9Dischargees whose status as employees is being determined in pending complaint proceed-
ings can vote in Board elections subject to challenge Grinnell Brothers , 98 NLRB 20.
to The Regional Director did issue a complaint the next day alleging discriminatory reduction
of hours and elimination of overtime
11 Times Square Stores Corp., 79 NLRB 361
POULTRY ENTERPRISES, INC. and AMALGAMATED MEAT
CUTTERS & BUTCHER WORKMEN OF NORTH AMERICA,
LOCAL 442, A. F. of L. Case No. 10-CA-1562. July 13, 1953
DECISION AND ORDER
On April 15, 1953 , Trial Examiner George A. Downing issued
his Intermediate Report in the above - entitled proceeding, find-
106 NLRB No 15
POULTRY ENTERPRISES , INC. 101
ing that the Respondent had engaged in and was engaging in
certain unfair labor practices and recommending that it cease
and desist therefrom and take certain affirmative action, as
set forth in the copy of the Intermediate Report attached hereto.
Thereafter , the Respondent filed exceptions to the Intermediate
Report and a supporting brief.
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 Intermediate Report , the exceptions and brief,
and the entire record in the case , and hereby adopts the Trial
Examiner's findings , conclusions , and recommendations, with
the modifications noted below.
We agree with the Trial Examiner that the Respondent was
responsible for Farmer ' s solicitation of employees to withdraw
from the Union and revoke the Union ' s authorization to repre-
sent them and that the Respondent thereby violated Section
8 (a) (1) of the Act. Like the Trial Examiner , we find, contrary
to the Respondent ' s contention , that Farmer had the authority
responsibly to direct employees in the performance of their
work and to shift and transfer them to different work positions
and therefore was a supervisor within the meaning of the Act.
To hold otherwise would require the acceptance of the Re-
spondent ' s incredible assertion that it conducts its entire
production operations with a force of approximately 140-odd
employees performing diverse jobs in at least 2 different rooms
and a feeding station , under the sole supervision of Plant
Foreman Nix.
Accordingly , we find that Farmer is a supervisor whose
conduct is attributable to the Respondent.I
There being no exception to the Trial Examiner ' s finding
that Howard was not a supervisor , we adopt such finding with-
out comment.
ORDER
Upon the entire record in the case , and pursuant to Section
10 (c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that the Re-
i 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].
2 Contrary to the Respondent 's contention, the fact of compliance by a labor organization
which is required to comply , is a matter for administrative determination and is not liti-
gable by the parties . Sunbeam Corporation , 94 NLRB 844 Moreover , the Board is admin-
istratively satisfied that the Union is in compliance.
3Cf Chicopee Mfg. Corp of Georgia, 85 NLRB 1439 In view of our determination herein,
we find it unnecessary to decide whether , apart from his supervisory status, the Respondent
held Farmer out as an individual identified with management.
Although the record in a prior case (102 NLRB 211) involving the same Respondent indicates
that Farmer had signed a union-authorization card, it is clear that the question of Farmer's
supervisory status was not litigated in that proceeding . It also appears that Farmer's
authorization card did not affect the Union 's majority status in that case
102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent , Poultry Enterprises , Inc., Gainesville , Georgia, its
officers , agents, successors , and assigns shall:
1. Cease and desist from:
Soliciting its employees to withdraw from Amalgamated
Meat Cutters & Butcher Workmen of North America, Local 442,
A. F. of L., or in any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of their right to
self- organization , to form labor organizations , to join or assist
Amalgamated Meat Cutters & Butcher Workmen of North
America, Local 442, A. F. of L., or any other labor organiza-
tion, to bargain collectively through representatives of their
own choosing , and to engage in other concerted activities for
the purposes of collective bargaining and other mutual aid or
protection , or to refrain from any or all such activities , except
to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of
employment , as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board
finds will effectuate the policies of the Act:
(a) Post at its ' plant at Gainesville , Georgia, copies of the
notice attached to the Intermediate Report and marked "Ap-
pendix A."4 Copies of said notice , to be furnished by the Re-
gional Director for the Tenth Region, shall , after being duly
signed by the Respondent ' s representative , be posted by the
Respondent immediately upon receipt thereof and be maintained
by it for sixty ( 60) consecutive days thereafter in conspicuous
places, including all places where notices to employees are
customarily posted . Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered , defaced,
or covered by any other material.
(b) Notify the Regional Director for the Tenth Region, in
writing, within ten (10 ) days from the date of this Order, as
to what steps have been taken by the Respondent to comply
herewith.
Member Peterson , dissenting:
I am unable to concur in the majority ' s decision that the
preponderance of the evidence establishes that James Farmer
is a supervisor , as defined in the Act , whose acts are imputable
to the Respondent.
The record discloses that Farmer ' s primary duty is to
operate and maintain the Respondent ' s machinery . In addition,
he helps load trucks and pack chickens , and performs other
manual work when and where needed in the plant . His rate of
pay is 80 cents per hour, which is the same as that of the rank-
and-file employees. Although Farmer may shift other employees
to various jobs during operations , it appears that he does so
pursuant to Plant Foreman Nix ' s specific directions . Moreover,
4 This notice shall be amended by substituting for the words "The Recommendations of
a Trial Examiner" in the caption thereof the words "A Decision and Order." In the event
that this order is enforced by a decree of a United States Court of Appeals, there shall be
substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to
a Decree of the United States Court of Appeals, Enforcing an Order."
POULTRY ENTERPRISES, INC. 103
according to the uncontradicted testimony of Plant Foreman
Nix, he frequently requests other employees to transmit
similar directions and messages to their fellow workers. In-
deed, the majority sustains the Trial ' s Examiner ' s finding that
Howard is not a supervisory employee although , like Farmer,
she too served as a conduit for the transmittal of orders from
Plant Foreman Nix.
Nor am I persuaded , as are the Trial Examiner and my
colleagues , that Farmer has the power to reprimand employees
for poor work and to grant employees time off when Nix is
away . In the only instance indicated in the record where
Farmer reprimanded another employee ( Vesta Payne ), Foreman
Nix testified , without contradiction , that he had specifically
instructed Farmer to correct this employee . As for granting
time off, the record discloses that on only one occasion Farmer
granted the request of another employee, Louise Hulsey, to be
off for dinner . There is no other evidence relating to the
circumstances of this request , that Farmer had the authority
to grant this request , or even that the Respondent was aware
of Farmer's action.
Finally, while I agree that the ratio between supervisory
and nonsupervisory employees may be some evidence as to
whether or not an individual is a supervisor , I am not entirely
convinced that this factor is sufficient , under the circumstances
of this case , to establish that Farmer was a supervisor within
the meaning of the Act. Indeed, it appears that he originally
joined the Union apparently in the belief that he was a rank-and-
file employee.
As the record , in my opinion, does not establish that Farmer
possesses authority responsibly to direct other employees,' I
would dismiss the complaint.
5Cf N. L R B '. Whit in Machine Works, decided June 5, 1953, 204 F 2d 883.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
This proceeding, brought under Section 10(b) of the National Labor Relations Act as amended
(61 Stat. 136), was heard in Gainesville, Georgia, on March 6, 1953, pursuant to due notice.
The complaint, issued on December 24, 1952, by the General Counsel of the National Labor
Relations Board, i and based on charges duly filed and served, alleged that Respondent had
engaged in unfair labor practices proscribed by Section 8 (a) (1) of the Act, from July 15 to
August 14, 1952, by and through Foreman J. N. Farmer and Forelady Flossie Howard, by
soliciting withdrawals from the Union from its employees and coercing its employees into
signing such revocations . Respondent 's answer denied those allegations.
Respondent 's motion to dismiss , based on the absence of an affirmative allegation of com-
pliance by the Union with Section 9 (h) of the Act, was denied prior to the hearing by Trial
Examiner Sydney S. Asher, Jr. Respondent's motion, made at the hearing, that the General
Counsel produce for examination records which would establish the fact of compliance was
denied. See Sunbeam Corporation. 94 NLRB 844; Compliance Status of Local No. 1150, United
IThe General Counsel and his representative at the hearing are referred to herein as
the General Counsel and the National Labor Relations Board as the Board. The above-named
Respondent is referred to as Respondent and the charging Union as the Union
1 04 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Electrical, Radio & Machine Workers of America, 96 NLRB 1029; Sunbeam Corporation, 98
NLRB 525; Hekman Furniture Company, 101 NLRB 631.
Upon the entire record in the case and from his observation of the witnesses, the under-
signed makes the following:
FINDINGS OF FACT
The Respondent is engaged in interstate commerce within the meaning of the Act, and the
Union is a labor organization which admits to membership employees of Respondent. See
Poultry Enterprises, Inc. 102 NLRB 211, and Case No. 10-RC-1299.
Under the evidence, the chief issue here is whether J. N. Farmer and Flossie Howard were
Respondent's supervisors within the meaning of Section 2 (11) of the Act, or whether their
status was otherwise such that Respondent was responsible for their acts in soliciting with-
drawals from the Union by Respondent's, employees on a petition delivered to Respondent and
forwarded by it to the Board on or about August 15, 1952.2
The evidence is undisputed that during working hours. Farmer openly solicited a number of
the employees at the plant (some of them repeatedly) to sign the petition to withdraw from the
Union and to revoke the Union's authority to represent them; that in some cases he expressly
informed the employees that the purpose of the petition was "to sign the Union out" or "to
kill the Union"; and that Farmer drove and accompanied a number of the employees in his
car after working hours to a lawyer's office in downtown Gainesville, where the petition re-
posed, so that they might sign the petition. It is also undisputed that Howard solicited several
of the employees at the plant to contribute to the lawyer's fee covering the petition, and that
she solicited one employee to sign the petition.
Similarly undisputed was evidence offered by Respondent that the attorney in question did
not represent the Company and had never represented it or its officers. S. G. Stewart. Re-
spondent's vice president, and Wallace Nix, plant superintendent, also testified that they had
no knowledge of the activities of Farmer or Howard and no connection with or knowledge of
the petition prior to its delivery to the Company with all the signatures affixed.
Relevant to the issue whether Farmer and Howard possessed supervisory status are the
following facts:
Respondent employs from 140 to 150 employees, most of whom work in 2 separate rooms
and who perform more than a dozen different operations in connection with the slaughtering,
dressing, and packing of poultry. Many of the employees are not assigned to specific opera-
tions but are changed from job to job as the need arises.
Farmer was paid at the same rate and on the same basis as other employees. He had no
duties which required him to remain at a regular work station. He was responsible for the
operation of the plant machinery and for keeping it in running order but he also engaged in
weighing and grading chickens, loading trucks, and in servicing trucks. However, witnesses
for the General Counsel testified that Farmer also went up and down the line among the hands
and told them what to do; that if they were not working properly he reprimanded them; that he
changed employees from job to job; that on occasions when Nix was late in arriving at the
plant, Farmer started the employees to work; and that on other occasions when Nix was away,
as on vacation, Farmer was in charge, i.e., he told the employees what to do and it was to
him that they applied for leave tobeoff. In addition, Louise M. Hulsey testified to a conversa-
tion with Nix in which Nix stated he knew that Farmer would make a good boss and that he
would stand behind Farmer in anything Farmer said. Nix did not deny that testimony.
Respondent offered the testimony of no employee witnesses in refutation of the foregoing.
Nix's and Stewart's testimony was to the effect that Farmer and Howard were without authority
to hire, discharge, lay off, etc , and without authority to recommend such action. They testi-
fied also that the entire supervision of the plant operations and of all its employees was in
Nix's hands; that slight supervision was in fact necessary because the employees knew their
jobs and their assignments and fell into line when the machinery started. Though Stewart
admitted that it was frequently necessary for employees to be shifted from job to job, Nix
testified that he directed all such transfers, in many cases sending word through Farmer or
Howard. Though Nix also testified that he had similarly used a half or two-thirds of the em-
ployees on occasions to transmit such messages to other employees, he specified no other
particular employees who carried messages.
2 in fact, the present case is scarcely more than an appendage to the earlier complaint
proceeding lately decided by the Board, 102 NLRB 211, supra since the petition which forms
the subject matter of the present proceeding was circulated shortly after the issuance of
the Intermediate Report in the earlier case and formed the basis of Respondent's motion
to amend its answer and to reopen the record, which was denied by the Board in its decision
POULTRY ENTERPRISES, INC. 105
Howard's main job was to serve as a general utility hand, i.e., to fill in where needed in
cases of absenteeism and to take the places temporarily of other employees when they went
to the res' room . Howard also attended employees in case of minor injuries or illness on the
job and otherwise "waited on them, " i.e., by bringing them things they needed. There was
evidence also that Howard sometimes shifted employees to other jobs , but that evidence does
not establish that in so doing Howard was exercising independent judgment. For example,
Myrtle Sorrels testified that only the day before the hearing Howard had for the first time
directed her to go pull craws, but informed her that the order was from Nix. Vesta Payne, who
testified that she had seen Howard "change hands ," admitted that she was not close enough
to hear what was said on those occasions . Though Betty L. Dean (Talton) testified that Howard
frequently placed employees at work and shifted them from job to job, her testimony related
to a period outside that covered by the present complaint, since Dean had left Respondent's
employ in July 1951.
It is also of significance that Howard testified as a witness for the General Counsel at the
earlier hearing in April 1952 (see footnote 2) and that her testimony then indicated that she
was only a rank-and-file employee.
Concluding Findings
There is no evidence and no contention that either Farmer or Howard had authority to hire,
discharge , lay off, promote, or reward employees , or effectively to recommend such action.
The evidence does establish , however, and it is hereby found that Farmer had the authority to
assign employees and to transfer them from job to job, as well as authority responsibly to
direct them.
Though not conceding the foregoing , Respondent contends that in any case the exercise of
any such authority by Farmer was purely of a routine nature and did not require the use of
independent judgment. That contention cannot be sustained inview of the evidence of Farmer's
frequent and active participation in the supervision of the plant operations and of the staff of
employees . In view of the size of the plant, the number and variety of the operations, and the
number of employees , Nix's testimony that the plant was one which in effect " ran itself." with
slight supervision , would, even in the absence of refutation, be suspect . Here, however, there
is direct refutation of that claim in the evidence that employees were frequently transferred
from job to job and that Farmer regularly participated in the direction of the working force
and in the making and changing of assignments.
That Farmer 's exercise of authority was within Respondent 's knowledge and in its interests
was conclusively established by Nix's statement to Hulsey that Farmer would make a good boss
and that Nix propose to back him up . Even were the evidence otherwise inadequate to establish
Farmer's supervisory status , that holding out of Farmer by Respondent obviously sufficed to
identify him with management in the eyes of the employees in such a way as to cause the em-
ployees to look to him for guidance regarding the Company 's policy. Corning Glass Works.
100 NLRB 444, and cases there cited at footnote 3; Harrison Sheet Steel Company , 94 NLRB
81, enforced 194 F . 2d 407 (C. A. 7).
It is also to be noted that under Respondent ' s theory Nix was the single supervisor for 140-
odd employees . Such disparate ratio affords additional support for the finding which is here
made that Farmer occupied supervisory status . Wayside Press , Incorporated, 102 NLRB 4;
Morowebb Cotton Mills Co., 75 NLRB 987.990 ; J. P. Stevens & Co.. Inc., 93 NLRB 1513, 1518.
It is, therefore, concluded and found , on the entire evidence that Farmer was a supervisor
within the meaning of the Act. Chicopee Mfg. Co. of Georgian 85 NLRB 1439 , 1442; Somerse
Classics, Inc ., 90 NLRB 1676 . 1677-8, enfd . 193 F. 2d 613 (C. A. 2); Boland Mfg. Co.. 89
NLRB 3, 6.
As to Howard, however , the General Counsel failed to establish by a preponderance of the
evidence that she, too , possessed supervisory status. Though there is some evidence that she
also "changed hands," it is unsatisfactory and unconvincing in the aggregate , and is com-
patible with Respondent 's contention that to the extent that she gave, or appeared to give,
orders , Howard was servingonly as a conduitfor messages which emanated from Nix. Sorrell's
testimony . for example , clearly so indicated. It is, therefore , concluded and found that such
authority as Howard exercised was of a purely routine nature and did not require the use of
independent judgment, and that she did not qualify as a supervisor within the statutory defini-
tion.
The determination of Farmer 's supervisory status fixes Respondent's responsibility for his
acts and conduct among the employees . Cf. Standard Feed Milling Co., 94 NLRB 1275; ouch
Shore Packing Corporation , 73 NLRB 1116 ; Calcasieu Paper Co., Inc., 99 NLRB 794, enfd. 203
2d 12, (C. A. 5). As a supervisor, Farmer was himself a part of "management" and it is,
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
therefore, not material, as Respondent urges, that other representatives of management may
not have known of his activities and may not have approved or ratified them.
It is also not material that Farmer did not resort to threats or to the active intimidation of
the employees. His acts occurred at a time when, as disclosed by the Board's decision in the
earlier case, Respondent was obligated to bargain with the Union as the majority representa-
tive of its employees. Farmer's active sponsorship of the petition among the employees, his
solicitation of signatures thereon, and his activities with the employees surrounding the pro-
curing of their signatures, were obviously calculated to interfere with and restrain the em-
ployees in their right to bargain collectively through their freely selected bargaining repre-
sentative. omerset Classics Inc., 90 NLRB 1676,1678, supra • Chicopee Mfg. Co. of Georgia.
supra, and cases there cited at oomote 7; C. Pappas, Inc., 82 NLRB 765; N. L. R. B, v. Link-
Belt Co., 311 U. S. 584, 598-9 ,N, L. R. B. v. Ford Brothdrs,170 F.2d 735,738 (C. A. 6), enfg.
B 49. Cf. Red Rock Co., 84 NLRB 521, enfd. as mod.,187 F. 2d 76 (C. A. 5); N. L. R. B.
v. Atlantic Stages , 180 F. 2d 727 (C. A. 5); N. L. R. B. Y. Gate City Cotton Mills, 167 F. 2d
647 (C. A. 5); N. L. R. B. v. Fairmont Creamery Co., 169 F. 2d 169 (C. A. 10). The solicita-
tion of withdrawals from the Union obviously fell outside the scope of the expression of views
which is protected by Section 8 (c). Southeastern Pipe Line Co., 103 NLRB 341; cf. N. L. R. B.
v. Minnesota Mining and Manufacturing Cq., 179 F. 2d 323, 326 (C. A. 8); N_ R. v.
Bailey
,
Co.. 180 F. 2d 278, 280 (C. A. 6); N. L. R. B. v. Williams' Lumber Co., 95^ F. 2d 169.
672 (C. A. 4).
Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the
undersigned makes the following:
CONCLUSIONS OF LAW
1. Respondent's activities, occurring in connection with Respondent's operations as de-
scribed above, have a close, intimate, and substantial relation to trade, traffic, and com-
merce among the several States and tend to lead to labor disputes burdening and obstructing
commerce and the free flow thereof.
2. The Union is a labor organization within the meaning of Section 2 (5) of the Act.
3. By soliciting withdrawals from the Union from its employees, Respondent interfered
with, restrained , and coerced its employees in the exercise of rights guaranteed in Section 7
of the Act , and thereby engaged in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
,tRecommendations omitted from publication.]
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of aTrial Examiner of the Natibnal Labor Relations Board,
and in order to effectuate the policies of the National Labor Relations Act, we hereby notify
our employees that:
WE WILL NOT solicit withdrawals from the union from our employees, and we will
not in any other manner interfere with, restrain, or coerce our employees in the exercise
of their right to self-organization, to form labor organizations, to join or assist Amalga-
mated Meat Cutters Butcher Workman of North America, Local 442, A. F. of L., or
any other labor organization, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purposes of collective bar-
gaining and other mutual aid or protection, or to refrain from any or all such activities
except to the extent that such right may be affected by an agreement requiring member-
ship in a labor organization as aconditionof employment, as authorized in Section 8 (a) (3)
of the Act.
All our employees are free to become or refrain from becoming members of the above-
named union, or any other labor organization, except to the extent that the right to refrain may
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.