Flores and eventually Colletti, filed a complaint with the NLRB (P) alleging that D had engaged in unfair labor practices by failing to provide him with job referrals because he was not a member of the union. Administrative Law Judge Samuel Ross found that the union had referred union members to jobs to which Flores and Colletti had equal or superior claims, and that the union had done so not for lawful reasons, but solely in order to favor union members over non-members and to encourage union membership, thereby engaging in unfair labor practices. The judge went beyond the complaint to consider the legality of Article XI of the collective-bargaining agreement. The question of Article XI's legality was not raised in the amended complaint, in the briefs, or oral argument, and no evidence was presented concerning this issue. The judge held sua sponte, that Article XI is illegal on its face under sections 8(b)(1)(A) and (2) of the NLRA because it unlawfully encourages unionism. D originally believed that the judge's decision was legally incorrect. P moved to enforce the judge’s order

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