Petition for Writ of Certiorari — Great Western Broadcasting Corp. v. National Labor Relations Board

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Office-Supreme Court, U.S.

FILED

MAY 6 1966

———_—_—_—_ -

IN THE

Supreme Court of the United States

OctToBeR TERM, 1965

129 0

GRRAT WESTERN BROADCASTING CORPORATION,

d/b/a KXTV, Petitioner,

NATIONAL Lapor RELATIONS Boarp, Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

WintHrov A. JOHNS

1120 Tower Building

Washington, D. C. 20005

Attorney for Petitioner

Of Counsel:

REILLY AND WELLS

1120 Tower Building

Washington, D. C. 20005 °

Press oF Byron S. ApaAms PrintInc, Inc., WAsHINcTON, D. C.

AED 9

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Questions PRESENTED ........:......60. Héteasaaees 2

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STATEMENT OF THE CASE ..........0.eeeeeecceeeecees Hy)

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2. The Original Board Decision ................ 6

3. The Original Court of Appeals Decision ...... 7

4. The Supplemental Decision of the Board ...... 8

5. The Second Decision of the Court of Appeals.. 8

REASONS FOR GRANTING THE WRIT ..............22225 9

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AUTHORITIES CITED

CasEs:

Columbia Broadcasting System, Inc. v. Amana Refrig-

eration, Inc., 295 F.2d 375 (C.A. 7), cert. denied

gE A ee ren ae ON Aen Semon aetna 12

Middle South Broadcasting Co., 133 NLRB 1698 ..... 4 |

N.L.R.B. v. Fruit-€ Vegetable Packers & Warehouse-

men, Local 760 (Tree Fruits), 377 U.S. 58 ....... 3,8 \

N.L.R.B. v. Servette, Inc., 377 U.S. 46 ...(.. 3,4, 8,9, 11,12

eee Index Continued

Page

United States v. Montgomery Ward &€ Co., 150 F.2d 369

a Se | re errr ry eee ee ecatan ses 11

“ Ypsilanti Press, Inc., 135 NLRB 991 ................ 10

STaTUTEs: :

Fair Labor Standards Act (29 U.S.C. § 203(j)) ...... -.

National Labor Relations Act, as amended. (29 U.S.C.

Sec. 141 et seq.) | .

NN NE a ws saedeuannnee, 3, 4, 5, 6, 8

Sn INS © os cos nde ch has beebark nes 15°

Section 8(b)(4)(B) ............... 2, 6, 9, 13, 14, 15

UY NE oh aiivadisadecsnscavaans 15

NE PUUEEPE ons dc non deourdssnéendouns

War Labor Disputes Act (150 F.2d, p. 376) ........ ea ae

MISCELLANEOUS: .

ee oc ach cave as eae bac dae 10

Legisl. Hist. Labor Management Relations Act 1947,

eet ey I hd os esa akee anaes haneueess 10

15.

g 7 pte IN THE

| Supreme Court of the United States “

| | - Ocroser TERM, 1965 ;

—

GREAT WESTERN BROADCASTING CoRPORATION,

| d/b/a KXTV, Petitioner, ,

Vv.

NationaL Lasor RELatiIons Boarp, Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FORTHE ‘°

NINTH CIRCUIT. ee

Great Western Broadcasting Corporation, d/b/a

KXTV (herein called KXTV), prays that a writ of

. certiorari issue to review the judgment of the United

States Court of Appeals for the Ninth Circuit entered

in this case on February 9, 1966. ~~

OPINIONS BELOW

| ™~ The decision of the United States Court of Appeals

for the Ninth Circuit here involved is reported at 355

F. 2d 434 and is printed in Appendix A hereto, infra,

pp. 2a-6a. The Supplemental Decision of the Na-

tional Labor Relations. Board (herein called the

ty 4

f os

9 ¢ se

‘

Board), affirfhed by this decision of the Court of Ap-

peals, is reported at 150 NLRB No. 46 and is printed

in Appendix B hereto, infra, pp. Ta-15a. The prior

decision of the Court of Appeals in this matter is re-

ported at 319 F. 2d 591 and is printed in Appendix C,

imfra, pp. 17a-32a. The original decision of the Board

in this matter is ‘reported at134 NLRB 1617 and is

printed in Appendix D, ae 33a-40a. ~

JURISDICTION

The judgment of the Court of Appeals here involved

was entered on February 9, 1966 (imfra, p. la). The

jurisdiction of this Court is invoked under 28 U.S.C.

.§1254(1).

QUESTIONS PRESENTED

The Board in its original decision (infra, pp. 33a-40a)

dismissed the complaint of its General Counsel alleg-

ing that the respondent Unions before the Board’ had

violated Section 8(b) (4) (ii}(B) of the National Labor

Relations Act (herein called the Act). This section, set

forth in fuli in Appendix B (infra, pp. 41a-43a), pro-

hibits, inter alia, threats, coercion or restraint to re-

quire ‘‘any person” “‘to cease using, selling, handling,”’

ete., the ‘‘products of any producer, processor, or man-

ufacturer’’ or ‘‘to cease doing business with any other

person’’. The eharged violation here was the: second-

ary pressure exerted on persons who advertised over

KXTV, with which latter the Unions had a primary

labor dispute, to force such advertisers to cease doing

business with KXTV through threatened and actual

ducement of customer boycotts of the products sold

eMican Federation of Tel@vision & Radio Artists, San

‘& Technicians, Local 55 (herein called the Unions).

isco Local, and National Association of Broadcast Em-

‘by such advertisers. The Board held that by furnish-

“ing advertising services to the advertisers; .

eame one of the producers of the products so

- advertisers and, therefore, the publicity proviso to See-

tion 8(b) (4) of the Act (infra, pp. 42a-43a) exempted

the Unions’ conduct from this prohibition of the Act

(infra, pp. 13a-14a).. The Court of Appeals, in its

original decision, yejécted the Board’s rationale and

remanded the matter to the Board. Thereafter, this

‘Court’s decisions in N.L.R.B. v.Servette, Inc., 377

U.S. 46, and N.L.R.B. v. Fruit & Vegetable Packers &

Warehousemen, Local 760 (Tree Fruits), 377 US. 58,

were issued., Relying on these two decisions, the Board,

in its supplemental decision, reaffirmed its original

rationale as to the application of the publicity previso

to the instant matter, and its dismissal of the com- ,

plaint, and the Court of Appeals, on supplemental re-«

view, reversed its former holding and affirmed the

a decision and dismissal. The

questions presented, therefore, are— : :

1. Whether the Court of Appeals: and the Board

properly construed the Servette and Tree Fruits de-

cisions of this Court, issued in situations in which the

products, of the secondary employers were actually.

produced or handled on the way to the secondary em- =

ployers and the consumers by the employers with

whom the unions there had the prymary disputes, .as

avplicable to a situation in which the primary em-

ployer never handled the products of the secondary

employers but merely was ‘‘doing business’? with the

secondary employers by furnishing &m advertising -

service which helped produce customers for the secon-

dary employers’ products but not the products them-

selves. ’

radio stations, and publishers of newspapers and

magazines, which produce products of their own, the

televised and broadcasted programs .and the news-

papers and magazines (which products themselves may .

be subjected to a secondary consumer boycott), within —

_ the meaning of the publicity proviso to Section 8(b) (4)

of the Act help produce the products and services sold

by the advertisers who utilize their media; including

such products as, as here, automobiles, bread, gasoline,

beer, and moving, cleaning and banking services.

3. Whether -this Court by stating in Servette that

the ‘‘protection of the proviso was [not] intended to

be any narrower in coverage than the~prohibition to

which it is an exception’’ (377 U.S., at p. 55), (a)

meant, as the Court of Appeals and the Board held in

effect, that all ‘‘publicity, other than picketing’’ which

does not induce a secondary work stoppage is excluded

by the proviso from the prohibition of Section 8(b) (4)

of the Act, or (b) meant, as KXT'V contended below,

only that the exemption of the proviso is as broad as.

the prohibition of Section 8(b) (4). against proscribed

conduct for ‘‘an object’’ of requiring any person ‘‘to

cease using, selling, handling’’, etc., ‘‘the products of

any other producer, processor, or manufacturer’’,

leaving unrestricted the prohibition of Section 8(b) (4)

under which the complaint herein was issued against

similar conduct for ‘‘an object’’ of requiring any per-

son ‘‘to cease doing business’’ with another person,

which ‘‘doing business’’ relationship, as here, does not

involve the distribution of a ‘‘product’’. ‘‘produced’’

or physically handled by the ‘‘primary’’ employer.

2. Whether advertising media like television and.

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“STATUTE INVOLVED

_ THe statutory provisions directly involved are those

of Section 8(b)(4) of the National Labor Relations

Act> They are printed in Appendix E hereto, infra,

ppAla-43a. |

‘ * STATEMENT OF THE CASE

1. The Facts

-KXTV operates a television station at Sacramento,

California (R. 39, 86).2 In connection with a primary

laber dispute with KXTYV, the Unions exerted coercion

and restraint upon various persons who advertised their

‘products over KXTV to cease doing business with

KXTV (1) by orally threatening to publish the names

of persons who continued. to advertise over F XTV, |

(2) by letter threatening economic reaction against

those who continued to advertise over KXTV, (3) by

handbills distributed at various locations publicizing

the names of those who continued to advertise their

products over KXTV, (4) by letters requesting the

San Francisco Labor Council and the members of its

affiliated unions to return th eredit cards to a gaso-

line station chain, which edntinued to advertise over

KXTV, and soliciting ‘‘any aid”’ the Council and its

affiliates “‘can give” in respect to 14 listed companies

who continued to advertise over KXTV, and (5) by

threatening two advertisers with being handbilled if

they continued to advertise over KXTV (R. 85-93, 97-

131). Among the advertisers were automobile dealers,

bakeries, a national gasoline service station chain,

2 The symbol ‘¢R,”? identifies reference to pages of the printed

record in the original review proceedings in the Court of Appeals

- which,” by stipulation, was jneorporated as part of the record in

the supplemental review proceedings. :

} x Y

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breweries, an optometrist, and moving and storage,

banking and cleaning services (tbid.).

Upon charges filed by KXTV (R. 3-18) the General

Counsel of the Board issued his complaint under Sec-

tion 8(b) (4) (ii) (B) of the Act (R. 19-27), which sec-

tion, in pertinent part, provides:

‘*(b) It shall be an unfair labor practice for a

labor organization or its agents—

“*(4) * * * (ji) to threaten, coerce, or restrain

any person engaged in commerce or in an industry

affecting commerce, where * * * an object thereof

i . f

‘‘(B) forcing or requiring any person to*cease

using, selling, handling, transporting, or other-

wise dealing in the products of any other producer,

processor, or manufacturer, or to cease doing

business with any other person, * * *.’’

The complaint alleged that the object of the Unions’

conduct was to force the advertisers ‘‘to cease doing

business with” KXTV. The trial examiner of the

* Board, after hearing, sustained the complaint (R. 57-

59).

2. The Original Board Decision

The majority of a three-member panel of the Board,

upon exceptions by the Unions, reversed the trial ex-

aminer and dismissed the complaint (R. 65-75; infra,

pp. 33a-40a), holding that the secondary consumer

boycott was permissible under the publicity proviso to

Section 8(b)(4) (infra, pp. 42a-43a). That proviso

exempts from the prohibition of the section—

“* * * mublicity, other than picketing, for the

purpose of truthfully advising the public, includ-

ing consumers and members of a labor organiza-

tae calle aan tan et Cane a amber ly AR te

tion, that a product or products are produced by

an employer with whom. the labor organization

has a primary dispute. and are distributed by an-

other-employer * * *.’”

In rejecting KXTV’s argument that it did not

_ produce’ a ‘product or products’’ which were ‘‘dis-

tributed” by its advertisers, the panel majority held

that KXTV, ‘“‘by adding its labor in the form of cap-

ital, enterprise and service to the products which it

advertises for secondary employers becomes one of

the producers of the product which it advertises”’

(R. 73; infra, p. 39a).

3. The Original Court of Appeals Decision |

The Court of Appeals, after thorough discussion in®

/its unanimous decision of November 9, 1962 (310 F. 2d,

/ at pp. 595-600; infra, pp. 17a-32a), concluded, contrary

to the Board, that the ‘‘publicity proviso * * * does

not protect publicity to the effect that television serv- .

ice igs rendered by a station with whom the labor or-

ganization has a primary dispute, which service is

utilized by other employers’’. Accordingly, the Court

of Appeals remanded the matter to the Board for de-

termination as to whether the Unions’ conduct consti-

tuted threats, coercion, or restraint prohibited by Sec-

tion 8(b) (4) (ii) (B).“

8 This exemption is nullified if the ‘‘publicity other than picket-

ing’’ has the ‘‘effect of inducing’ a secondary work stoppage

(see infra, pp. 42a-43a). :

4The Court of Appeals also remanded for Board consideration

the Unions’ claim that their conduct was protected by the free

speech and free press provisions of the Constitution (310 F. 2d,

-at p. 600; infra, p. 32a). The Board, on the remand, presumed the

constitutionality of the statute (infra, p. 15a). The Court of Ap-

peals, in its second decision, did not meet the issue (infra, p. 4a).

4. The Supplemental Decision of the Board?”

On remand, in a Supplemental Decision, the Board

found that the Unions’ conduct constituted ‘‘restraint

or coercion within the meaning of Section 8(b) (4) (ii)

of the Act’’ (infra, pp. 1la-13a). Nonetheless, the

Board, relying on the intervening decisions of this

Court in Servette and Tree Fruits, adhered to its prior

conclusion that ‘‘K X TV, by the addition of its services

(advertising) to the products involved here, is a ‘pro-

ducer’ within the meaning of the provisio”’ of its.

advertisers’ products, and reaffirmed its dismissal of

the complaint (infra, p. 14a).

5. The Second Decision of the Court of Appeals

On supplemental petition to review the supplemental

decision of the Board, the Court of Appeals reversed

its prior conclusions and affirmed the Board’s supple-

mental decision. In doing so, the Court of appeals,

inter alia, stated (infra, pp. 5a-6a) :

‘*In Servette, the Supreme Court held that one

who is engaged in the wholesale distribution of

tangible articles manufactured by another, is him-

self a producer of such products, within the mean-

ing of the publicity proviso. It seems to us that

it must follow.that one who is engaged in the

business of advertising tangible articles manu-

factured by another, ‘is likewise a producer of

such products within the meaning of the proviso.

‘But KXTV is not engaged solely in advertising

tangible articles. It also advertises banking,

cleaning and other services. In our former

opinion we pointed out the incongruity involved

in regarding a television station as a producer of

services inasmuch as the ‘products’ referred to in

the proviso are to be of a kind which are distributed

by another employer. 310 F. 2d at 597.

‘Nevertheless, the Supreme Court has spoken in

such broad terms in Servette, that we think the

incongruity to which we referred may not control ,

the ultimate decision. The Supreme Court ap-

differentiate between primary employers engaged

in the production of tangible products and those in-

“In Servette, the Supreme Court said, at page

5D:

‘There is nothing in the legislative history which

suggests that the protection of the proviso was

intended to be any narrower in coyerage than

the prohibition to which it is an exception, and

we see no basis for attributing such an in-

congruous purpose to Congress.’

“The prohibition ‘set forth in section 8(b) (4)

(ii) (B) covers the cited union activity, else KXTV

would not have a case to begin with. The Supreme

Court has said that the publicity proviso is to be

given as broad an application as the statutory pro-

hibition. It follows that, whatever difficulties an

analytical dissecting of the proviso may reveal,

they are not to stand in the. way of giving that

proviso a scope commensurate with the section to

which it is appended.”

REASONS FOR GRANTING THE WRIT

1. Fhe decision of the Court of Appeals applying

the decision of this Court in Servette, involving a

totally different factual situation, to a television sta-

tion is of tremendous importance to the thousands of

television and radio stations and newspapers and maga-

zines, and other advertising media, in the eountry and

to their hundreds of thousands of clients who advertise

through their media and, it is submitted, the decision

should be reviewed by this Court.

If the present decision is not reviewed by this Court,

petitioner knows of no manner in which the question

may ever again reach ‘the Court. With the Board

having consistentiy adhered to its view that advertising

media by furnishing advertising services help produce

the products of clients who advertise through their

media,’ and the second decision of the Court of Ap-

peals here having affirmed such view, it is wholly un-

likely that the General Counsel of the Board will ever

again issue a complaint to test the correctness of the

Board’s view.® Thus, the Board’s interpretation and

application of the publicity proviso to the products of

secondary persons who utilize advertising facilities of

persons having primary labor disputes to produce

customers will become settled law without this Court

having considered or endorsed this extreme interpre-

tation and application.

Thousands of newspapers, magazines, television and -'

radio stations, and other advertising media, will be

vulnerable to secondary pressure and hundreds of

thousands of merchants and manufacturers who ad-

vertise in newspapers and periodicals, and over radio

and television stations, will be vulnerable to union boy-

cotts of the products they sell induced by ‘‘publicity,

other than picketing’’, regardless of the merits of what-

ever labor dispute the advertising media may be in-

volved -in, notwithstanding the express Congressional

' 5 See Middle South Broadcasting Co., 133 NLRB 1698; Y. psilanti

' Press, Incg, 185 NLRB 991?

6 See 93 Cong. Rec. 7001, 7691; Legisl. Hist. Labor Management

- Relations Act 1947, vol. 2, pp. 1623, 1656.

}

‘Ul

limitation of the proviso to ‘‘a product or products”’

‘‘nroduced by an employer™ with whom the Union ‘‘has

a primary dispute” and which ‘sare distributed’’ by

the secondary employer (infra, p. 42a). Moreover, if

the decision of the court below is permitted to stand,

this secondary pressure and these boycotts may be

directed: at advertisers who themselves only furnish

services to their customers, such as moving, cleaning

and banking establishments.

9. The Court of Appeals and the Board miscon-

strued this Court’s decision in Servette. )

(a) In that case, this Court merely agreed with the

Board ‘‘that products ‘produced by an employer’ in-

cluded products distributed, as [there], by a wholesaler

with whom the primary dispute exists”’ (377 US., at

p. 55). To support this conclusion, the Court cited

as ‘not unfamiliar to Congress” the definitions of

‘+produced”’ and ‘‘production’”’ appearing in the Fair

Labor Standards Act (29 U.S.C. § 203(j)), which

speak in terms of ‘produced, manufactured, mined,

handled, or in any other manner worked on’’, and ‘*pro-

ducing, manufacturing, mining, handling, transporting,

or in any other manner working on”’ (ibid.; emphasis

added).’ These definitions, as the, Court in Servette

* noted (377 U.S., at p. 56), had been held to apply to

the ‘“‘wholesale’’ and retail” distribution of goods.

But both these’ definitions and the cited applications

are restricted to situations in which a product is ‘‘pro-

7 United States v. Montgomery Ward & Co., 150 F.2d 369 (C.A.

7), cited by this Court in Servette (377 U.S., at p. 56, fn. 15),

looked at these definitions for guidance for interpretation of the

term ‘‘production”’ as used in the War Labor Disputes Act (150 —

F, 2d, at pp. 376-377).

Gee

duced’’ or ‘‘production”’ is accomplished by a physical

‘chandling”’ or ‘‘working on” the produé® in some »

manner. In the situation in Servette, the ‘‘wholesaler’’

had, in fact, handled and transported the products en-

route to the distributor which products so handled by

the wholesaler were, in fact, distributed by the retailers,

the secondary employers.

In the instant matter, however, KXTV did not

physically handle, transport or work on the products

enroute to the -distributors, the secondary persons.

After the products were ‘‘produced, manufactured,

mined, handled’’, transported, and ‘‘worked on’’, and .

were in the hands of the retailer or distributor, KX TV

merely furnished advertising facilities to produce

customers for the distributors, not the products in their

hands which they distributed. See Columbia Broad-

\ casting System, Inc. v. Amana Refrigeration, Inc., 295

' F. 2d 375, 398 (C.A. 7), cert. denied 369 U.S. 812.

(b) The Court of Appeals asserted that unless the

‘*prohibition in section 8(b) (4) (ii) (B) covers the cited

union activity, * * * KXTV would not have a case to

_ begin with”’ and that this Court in Servette “has said

that the publicity provisg is to be given as broad an

application as the statutory prohibition”? (356 F. 2d, at

p. 436). In support, the Court of Appeals quoted the

following language from this Court’s decision in Serv-

~ ette—

‘‘# * * There is nothing in the legislative history

which suggests that the protection of the proviso

was intended to be any narrower in coverage than

the prohibition to which it is an exception, and we

see no basis for attributing such an incongruous

purpose to Congress.”’

‘However, the Court of Appeals was in error in assum-

ing that the foregoing language of this Court was Ap- °

plicable to all prohibitions of Section 8(b) (4) (B).

The “prohibition” to which the publicity proviso

is an “‘exception” is that part of Section 8(b) (4) (B)

only which prohibits certain conduct for ‘San object”’

of “forcing or requiring any person to cease using,

selling, handling, transporting or otherwise dealing in’

the products of any other producer, processor, OF manv-

facturer” (see 377 U.S:., p. 56; emphasis added ).

But, the ‘‘prohibition” of the statute under which

‘KXTV claimed relief is that which proscribes conduct

of the nature here involved for ‘‘an object’’ of “forcing

- or requiring any person * ** to cease doing business

with any other person’’. KXTV’s charges and the

General Counsel’s complaint all claimed relief under

this prohibition of the ‘Act (see R. 26, 4, 8, 14). The |

- publicity proviso plainly is not an ‘‘exception”’ to the

‘doing business’’ “prohibition”, unless the “doing

business”? involves the distribution of a “‘product”’

> ‘produced’’ by the “‘primary”’ employer.

9. The decisions of the Court of Appeals -and the

Board conflict with the plain intent of Congress. .

(a) The fact that, after proscribing certain conduct

for “an object”’ of ‘forcing or requiring any person

— to cease using,’’ etc., “‘the products of any other. pro-

ducer, processor, OF manufacturer’, Congress also

fyund it necessary to prohibit such conduct for the

purpose of ‘forcing or requiring any person %* * to

cease doing business with any other person” fully dis-

closes Congressional recognition that all secondary

boycotts do not involve products of producers. Some —

2) —_

secondary boycotts, as here, merely involve disruption

of business relations which do not relate to ‘‘products’’

‘*produced’’ by the primary employer and ‘‘distri-

- buted’’ by the secondary employer.

When the boycott does n6t involve a. product of a

producer, it is clear that Congress did not intend the

proviso to be applicable. Had Congress intended the

proviso to bé applicable also to the ‘‘cease doing busi-

ness’’ prohibition the proviso would have expressly

so stated. Even better, Congress, if this were its in-

tent, could have excluded from the prohibition of Sec-

tion 8(b) (4) (B) all ‘‘publicity, other than picketing’’,

which does not induce a secondary work stoppage, in

much simpler language than that contained in the pro-

viso as enacted ; for example, in the following language:

‘s* * * That for the purposes of this paragraph (4) -

only, nothing contained in this paragraph shall be

construed to prohibit publicity, other than picket-

- ing, for an object proscribed in clause (B) thereof,

as long as such publicity does not have an effect

of inducing any individual employed by any person

other than the primary employer in the course of

his employment to refuse to pick up, deliver or

transport any goods, or not to perform aiy serv-

ices, at the establishment of a secondary em-

ployer.”

Compare this all-encompassing language with the re-

stricted proviso Congress, in fact, adopted.

(b) The proviso to “‘paragraph (4)’’, limited as

it is to ‘‘publicity, other than picketing’’ to advise the

public 1 that ‘‘products”’ ‘‘produced”’ by the primary

employer. are being ‘“‘distributed” by the secondary em-

ployer, demonstrates only the possibility of Congres-

sional concern over the constitutionality of a restric-

tion against consumer ‘‘publicity, other than picket-

ing’? which would interferg with the prior recognized

right’ of unions to ‘‘follow the struck goods”’ for this

purpose (see 337 U.S., p. 64, fn. 7). It indicates no

Congressional concern over its constitutional power, to _

prohibit consumer ‘publicity, other than picketing”’

for any of the other objects proscribed by Section

~ 8(b) (4) of the Act. In addition to the absence of any

_ jlicense in the -proviso for consumer ‘‘publicity, other

“than picketing” to require one person to cease doing

business with another, the proviso does not sanction

consumer ‘‘publicity, other than picketing’”’ to force

(1) a person to join a ‘labor or employer organiza-

tion” or to enter into an ‘agreement which is pro-

.. hibited by section 8(e)”’ (see Section 8(b) (4) (A) of

the Act; infra, p. 41a) ; (2) an employer to ‘‘recognize

or bargain’’ with a union which has not been certified

by the Board (see Section 8(b)(4)(B) of the, Act;

infra, p. 41a); (3) an employer to ‘‘recognize or

bargain” with a union when another union has been

certified by the Board as,the representative of the em-

ployees involved (see Section 8(b) (4) (C) of the Act;

infra, p. 42a); (4) an employer to assign work to em-

ployees in one union or class rather than to those in

another union or class (see Section 8(b) (4) (D) of the

Act; infra, p. 42a). It is then plain that any Congres-

sional concern over constitutionality had no reference

‘to the factual situation here involved—a coercive con-—

sumer boycott of advertisers because they did business

with a television station by utilizing the latter’s ad-

vertising services to produce customers for their pro-

ducts, not the product of the television station.

a) > ar f

- CONCLUSION

For the foregoing reasons, this petition for certiorari

should be granted. |

Respectfully submitted,

Winturop A. JOHNS

1120 Tower Building

Washington, D. C. 20005

Attorney for Petitioner

Of Counsel:

REILLY AND WELLS”

1120 Tower Building

Washington, D. C. 20005

May, 1966.

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APPENDIX A

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 20,106

Great WESTERN BroapcastinG Corporation, Petitioner,

Nationa Lasor RELATIONS Boarp, Respondent.

Decree

Before: Barnes, Hamiey and Jertserc, Circuit Judges.

This cause came on to be heard on the supplemental

petition of the Great Western Broadcasting Corporation

filed May 25, 1965 to review a supplemental order of the

National Labor Relations Board entered December 16, 1964.

The Court heard arguments of respective counsel on

January 12, 1966 and has considered the briefs and tran-

script of record filed in this cause. On February 9, 1966

the Court being fully advised in the premises handed down

its decision in conformity thereto, it is hereby

OrpERED, ApsJupGED and DecreEep by the United States

Court of Appeals for the Ninth Circuit that the supple-

mental order of the Board be and hereby is enforced.

Wo. B. Luck,

Clerk

Filed Feb. 9, 1965

356 F. 2d 434

. . UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 20,106

Great WESTERN Broapcastine Corporation, d/b/a KXTV,

Petitioner,

Vv.

Nationa Lasor Retations Boarp, Respondent.

[February 9, 1966]

On Supplemental Petition to Review Supplemental

Decision of the National Labor Relations Board

[434] Before: Barnes, Hamuey and JERTBERG,

Circuit Judges

Hamuey, Circuit Judge:

This unfair labor practice proceeding is now in this court

for the second time. The proceeding was instituted by the

National Labor Relations Board on the complaint of Great

Western Broadcasting Corporation, d/b/a KXTV. The

complainant operates a television station in Sacramento,

California. KXTV was having a labor dispute with the

American. Federation of Television and Radio Artists,

San Francisco Local, and the National Association of

Broadcast Em[435]ployees and Technicians, Local 55; and

the complaint was filed against these unions.

The case involves an attempt by the two unions,

assertedly using coercive methods, to force several com-

panies to cease advertising on KXTV. In its complaint,

the company charged that this union activity constituted

an illegal secondary boycott as\ proscribed by section

8(b) (4) (ii) (B) of the National Labor Relations Act (Act),

61 Stat. 140 (1947), as amended, 29 U.S.C. § 158(b) (4) (ii)

(B) (1964). The oard, with one member dissenting, dis-

missed the confplaint, holding that the questioned union

activity was

otected by the so-called publicity proviso to

section 8(b) (4) of the Act2 This Board decision and order

are reported at 134 N.L.B.B. 1617.

On review we reversed, holding that the publicity proviso

does not protect publicity of the kind utilized by. the

respondent unions. We remanded the proceedings to the

Board for a determination, on the merits, of two additional

questions which had to be decided in disposing of the com-

1 Section 8(b) (4) provides in pertinent part:

‘¢(b) It shall be an unfair labor practice for a labor organi-

zation or its agents—

cd *

“©(4) .. . (ii) to threaten, coerce OF restrain any person

engaged in commerce or in an industry affecting commerce,

where . . . an object thereof is—

* * *

‘‘(B) forcing or requiring any person to cease using, sell-

ing, handling, transporting, or otherwise dealing in the prod-

ucts of any other producer, processor, Or manufacturer, or to

cease doing business with any other person, -- -

i & * =

<< Provided further, That for the purposes of this paragraph

_(4) only, nothing contained in such paragraph shall be con-

strued to prohibit publicity, other than picketing, for the

purpose of truthfully advising the public, including consumers

~“another employer, as long as such publicity does not: have an

effect of inducing any individual employed by any person

other than the primary employer in the course of his employ-

ment to refuse to pick up, deliver, or transport any goods, or

not to perform any services, at the establishment of the em-

ployer engaged in such distribution; ...”’

pany’s complaint. These questions were: (1) did the

unions’ activity tend to ‘‘threaten, coerce, or restrain,”’

within the meaning of section 8(b) (4) (ii)(B); and (2) is

such union activity protected by the First Amendment of

the Federal Constitution? Great Western Broadcasting

Corporation v. N.L.R.B.;,9 Cir., 310 F. 2d 591, 600.

In the further agency proceedings following the remand,

the Board found that all of the questioned union conduct,

other than the mere request that neutrals not advertise on

- KXTYV, constituted threats, coercion, or restraint within

~ the meaning of section 8(b) (4) (ii)(B). However, and not-

withstanding, the decision of this court reported in 310

F. 2d 591, the Board again dismissed the complaint on the

ground that the unions’ conduct was protected under the

publicity proviso to section 8(b)(4). The Board did so on

the basis of its conclusion that, in N.L.R.B. v. Servette, Inc.,

377 US. 46, 54-47,? and N.L.R.B. v. Fruit & Vegetable

Packers & Warehousemen, Local 760 (Tree Fruits), 377

U.S. 58, decided after the remand, the Supreme Court had

rejected this court’s interpretation of the statute and had

confirmed the Board’s reading of the proviso.®

[436] KXTV has petitioned to review this supplemental

order and the unions have intervened in support of the

order.

The company contends that the Board should not have

concerned itself with what the Supreme Court decided in

Servette and Tree Fruits, because our holding on the

2In Servette, the Supreme Court reversed the decision of this

court rendered in Servetie, Inc. v. N.L.R.B., 9 Cir., 310 F. 2d 659.

In its decision in Servette, this court relied upon certain conclu-

sions stated in Great Western Broadcasting Corporation v.

N.L.R.B., 9 Cir., 310 F. 2d 591, regarding the applicability of the

publicity proviso.

8In view of its second dismissal of the complaint, the Board

found it unnecessary to, and thus did not, reach the issue of

hether the questioned union activity is protected by the First

Amendment.

previous appeal became the law of the case and is therefore

binding upon the Board.

None of the cases cited in support of. this argument

involved the intervention of a Supreme Court decision

between the initial and second court of appeals decision in

a proceeding which is still pending. A departure from the

‘law of the case’’ doctrine is indicated where there *is™

such an intervening Supreme Court decision. See John

Simmons Co. v. Grier Bros. Co., 258 U.S. 82, 91; City of

Seattle v. Puget Sound Power & Light Co., 9 Cir., 15 F. 2d

794, 795.

The company argues, further, that nothing in the Servette

and Tree Fruits opinions of the Supreme Court, in any

respect disturbs the conclusions of this court in its prior

decision in this case. We stated there, in effect, that the

advertising services of KXTV did not make it a producer

of the ‘‘automobiles, bread, gasoline and beer’’ distributed

by its advertisers as required by the proviso; nor did

KXTV become a producer of products by advertising ‘‘a

service, such as banking or cleaning.’? The Servette and

Tree Fruits decisions of the Supreme Court, petitioner

asserts, merely indicate that this court’s prior decision

went too far, insofar as st was later construed in Servette,

9 Cir., 310 F. 2d 659, to hold that services of a wholesaler

or distributor who physically handled tangible goods en

route to the market place, was not a producer of the tangible

products offered for sale to the public.

In Servette, the Supreme Court held that one who is

engaged in the wholesale distribution © tangible articles

manufactured by-another, is himself pros of such

products, within the meaning of the publicity proviso. It

seems to us that it must follow that one who is engaged in

the business of advertising tangible articles manufactured

by another, is likewise a producer of such products within

the meaning of the proviso.

But KXTV is not engaged solely in advertising tangible

articles. It also advertises banking, cleaning and other

services. In our former opinion we pointed out the in-

congruity involved in regarding a television station as a

producér of services inasmuch as the ‘‘*roducts’’ referred

to in the proviso are to be of a kind which are distributed

by another employer. 310 F. ed at 597.

Nevertheless, the Supreme Court has spoken in such

broad terms in Servette, that we think the incongruity to

_which we referred may not control the ultimate decision.

The Supreme Court appears to place primé reliance upon

the legislative history, and nothing has been called to our

attention which indicates that Congress intended to

differentiate between primary employers engaged in the

production of tangible products and those involved in

rendering services.*

In Servette, the Supreme Court said, at page 55:

‘‘There is nothing in the legislative history which

suggests that the protection of the proviso was intended

to be any narrower in coverage than the prohibition to

which it is an exgeption, and we see no basis for

attributing such ma searethines purpose to Congress.’’

The prohibition set forth in section 8(b) (4) (ii) (B) covers

the cited union activity, else KXTV would not have a case

‘to begin with. The Supreme Court has said that the

. publicity proviso is to be given as broad an application:*as .

the statutory prohibition. It follows that, whatever

difficulties an analytical [437] dissecting of the proviso may

reveal, they are not to stand in the way of giving that

proviso a 8cope commensurate with the section to which

it is appended.

Affirmed. | ae ae / »

*The Board has applied the proviso to protect publicity aimed

at ‘services despite the fact that services are incapable. of distribu-

tion by another enplener. Plumbers and Pipefitters Local Union

142, 183 N.L.R.B. 307

- APPENDIX B

150 N.L.RB.B. No. 46

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD aA

Case No. 20-CC-234 7

AmeERICAN FEDERATION OF TELEVISION AND Ravio ARTISTS,

San Francisco Loca

NaTIonaL ASSOCIATION OF Broapcast EMPLOYEES AND

TecHNIcIaNs, Local 59

and

Great WESTERN BRoaDCASTING Corporation, d/b/a KXTV

Supplemental Decision

On December 27, 1961, the Board issued a Decision and

Order in the instant case’ finding that the Respondent

Unions had not violated Section 8(b) (4) (ii)(B) of the Act

as alleged. The Board held, in substance, that Respondents’

conduct was ptotected by the so-called *‘ publicity proviso”’

to that section. 7

Thereafter, the Charging Party filed a petition to review

the Board’s Order. On November 9, 1962, the Court of

Appeals for the Ninth Circuit reversed the Board,’ holding

that the television advertising servi¢es of the primary

‘employer, television station KXTV, were not ‘‘a product

or products’’ within the meaning of that term in the proviso

to Section 8(b) (4). The Court remanded the case to the

\ ¢

1134 NLRB 1617.

2 Great Western Broadcasting Corporation v. N.L.B.B., et.al.,

310 F. 2d 591 (C.A. 9).

Board for consideration of two issues which were not

reached by the Board in its original decision.*

Pursuant to the provisions of Section 3(b) of the National

Labor Relations Act, the Board has delegated its powers

in connection with this case to a three-member panel.

The first issue set forth i in the remand i is:

Whether the conduct engaged in by the Respondents con-

stituted threats, coercion or restraint within the meaning

of Section 8(b) (4) (ii)(B) of the Act.*

8 On February 8, 1963, the Charging Parties’ motion to remand

for the taking of additional evidence was denied by the Board and

the American Civil Liberties Union was granted leave to file an

amicus curiae brief.

* Section 8(b) (4) (ii) (B) aii: - pertinent part, as follows:

It shall be an unfair labor practice for a labor —

or its agents—- ~

(ii) to threaten, coerce, or restrain any person: oie in

commerce or in an industry atecting commerce, where . . an

object thereof is: 7

s ° @ ‘s @e .

(B) forcing or requiring any person to cease using, dillien,

handling, transporting, or otherwise . dealing in the products ~

of any other producer, processor, or manufacturer, or to cease

doing business with any other person—

Provided further, That for the purposes of this paragraph (4)

only, nothing contained i in such paragraph shall be construed

to prohibit publicity, other than picketing, for the purpose

of truthfully advising the public, including consumers and

members of a labor organization, that a product or products

are produced by. 4h ¢mployer with whom the labor organiza-

tion has a primary dispute and aré- distributed by another em-

ployer, as long as such publicity does not have an effect of

inducing any individuai employed by any person other than

the primary employer in the course of his employment to

refuse to pick up, deliver, or transport any goods, or not to

perform any services, at the establishment of the —-

engaged in such distribution ; 7

ro en ee °

ety

. 9a

to evaluate, the Court pointed out that Respondents:

(1) had committees of the unions call upon all advertisers

who used KXTV for the purpose of requesting them to

discontinue their patronage of the station and assist the

' wmions in their cause against KXTV;

(2) had a committee call upon Capitol Studebaker Com-

pany for the same purpose, in the course of which this

advertiser was told that if it continued to adverfise on

KXT'V the Labor Council would undoubtedly print the name

of Capitol in the Labor Bulletin as not supporting the

- strike ;

(3) mailed to all KXTV advertisers a letter setting forth

’ the background of the strike and requesting discontinuance

of advertising over the station, warning that failure to do

so would bring an adverse economic reaction ;

(4) printed and distributed four thousand handbills

listing KXTV as ‘“‘unfair,’” and naming Geer Chevrolet

Company, Rainbo Baking Company, Shell Oil Company

and Burgermeister Brawing Corporation as advertisers

who nevertheless continued to utilize the seryices of the

station, such distribution being made in front of KXTV, at

the Sacramento Lahor Temple, and at’ various Sacramento

grocery stores which handled Rainbo bread and Burger- |

meister beer; : i

(5) ent a letter to the San Francisco Labor. Council

asking the Council to return its Shell credit card to /that-

company and td request the members of affiliated unions

to do likewiey ; :

*<°8 Copies of this leaflet were also found stuffed between loaves of

bread at a supermarket supplied by Rainbo. The leaflet carried

this note: .

- mis statement is directed to customers of the ; above advertisers.

"Te ig-not a request-to employees to refuse to pick up, deliver

or transport, or to refuse to perform any service. .

<n setting forth the conduct which it wished the Board — |

10a :

(6) sent a later letter to the San Francisco Labor Council

listing 14 companies who were then advertising on station —

KXTV, with the observation that “any aid’’ the Council

and its affiliated members ‘‘can give in this sponsor area’’

would be appreciated ;

(7) showed to the President of Handy-Andy, with an

appeal to stop advertising on KXTV, a copy of the newly-

' printed leaflet which gave the background of the labor

dispute with KXTV, named Handy-Andy as a company

which continued to do business with KXTV, and added the ~

comment: @We think you will agree that this continued

assaciation is contrary to the best interests of working

‘people and the public’; .

(8) telephoned the general manager of Geer and, in con-

junction with an appeal to have Geer cease advertising on

KXTYV, informed him that a new leaflet was being printed

naming Geer as a sponsor still advertising on KXTV and

that. if Geer continued to do business with the station, this

leaflet would be passed out in front of Geer’s establishriient,

among other places.

The Board has reviewed the eight items of conduct

enumerated in the Court of Appeals remand. We find that

Item 1, a mere request to neutral employers unaccompanied

by any coercive acts, did not involve prohibited activity

within the meaning of Section 8(b) (4) (ii)(B).* However,

with respect to the other seven items, we find that the acts

were part of a campaign calculated to bring @sonomic

pressure upon the producers and distributors of products

advertised on KXTV for the purpose of forcing the

producers to cease advertising on KXTV. The acts com-

plained of may be characterized as threats to distribute,

® See N.L.R.B. v. Servette, Inc., 377 U.S. 46, 50-54.

lla

and the actual distribution of, leaflets and letters’

announcing that the named companies were continuing to

advertise on KXTV, and appealing to consumers to support

Respondent in its dispute with KXTV. The Respondent

made no attempt to limit consumer response to a boycott

of only the particular product or products advertised, and

it is plain from a reading of the leaflets and letters, and

from the threats made to advertisers that Respondent’s

object was the institution of a total boycott of all products

produced by companies advertising on KXTV. With —

respect to Handy Andy, Geer Chevrolet, and Capital

Studebaker, and Shell Oil Company, Respondent sought a

total boycott of their retail establishments. With respect

to Rainbo Baking Company, and Burgemeister Brewery,

Respondent appealed to consumers to refrain from buying

any of their products sold in retail establishments without

regard to whether the particular product was advertised

on KXTV.

Other than its dispute with KXTV, Respondent had no

dispute with any producer or distributor of products

advertised on KXTV, and the question presented is whether

Respondent’s activities described above, constitute restraint

or coercion within the meaning of Section 8(b) (4) (ii) of

the Act. The Supreme Court has held that picketing

appeals to customers of a large retailer, which were limited

7In making our findings with respect to item No. 5 (request to

the San Francisco Labor Council to return Shell credit cards) we

Shell credit cards. We further note that as a result of item No. 6

(letter to the San Francisco Council observing that ‘‘any aid”’

from the Council would be appreciated) a synopsis of the Labor

Council minutes of the meeti January 6, 1961, was mailed to

everyone on the mailing list{ including member unions and in-

dividual members, in which jt was requested that the recipients

discontinue purchases of the products or use of the services of

specified companigg who were still advertising on KXTV.

12a

to requesting customers to refrain from purchasing the

particular product of the primary employer with whom the

Union had a primary dispute, did not constitute coercion

as defined in this Section of the Act.’ The Court drew a

distinction in this regard between consumer picketing in

support of a product boycott and consumer picketing which

sought to enforce a total boycott of the neutral employer’s

premises :

When consumer picketing is employed only to persuade

customers not to buy the struck product, the union’s

appeal is closely confined to the primary dispute. The

site of the appeal is expanded to include the premises

of the secondary een but if the appeal succeeds,

the secondary employers’ purchases from the struck

firms _ are yrs only because the public has

diminished its purchases of the struck product. On

the other hand, when consumer picketing is employed

to persuade customers not to trade at all with the

secondary employer, the latter stops buying the struck

product, not because of a falling demand, but in

response to pressure designed to inflict injury on his

business generally. In such case, the union does more

than merely follow the struck product; it creates a

separate dispute with the secondary employer. (377

US. 58, at 72)

In the present case, Respondents’ activities were directed

towards the institution of a consumer boycott of all

products distributed by the companies it listed as ad-

vertising on KXTV. In these circumstances, it is clear

that its appeals and related conduct were not limited to

the product in dispute, whether that product be viewed as

the physical product advertised over the facilities of

KXTYV,’ or as merely the advertising component added to

8 N.L.R.B. vy. Fruit and Vegetable Packers and Warehousemen,

Local 760, et al (Tree Fruits), 377 U.S. 58.

® Compare the discussion, infra, as to the nature of the product

produced by KXTV for purposes of applying the proviso to

8(b) (4).

13a

the product by KXTV’s efforts.’ By failing to limit its

activities to the product ifi dispute, Respondent exceeded

the limited privilege to engage in product boycotts which

the Tree Fruits decision recognized. Accordingly, apart

from the consideration of the effect of the publicity proviso

discussed hereafter, we find that such conduct clearly con-

stitutes threats, restraint, or coercion as al the meaning

of Section 8(b) (4) (ii) of the Act.

Having found that the actions previously described are

' eoercive, we now consider whether they were protected

by the proviso to Section 8(b) (4), and conclude, as we did

in our earlier decision, that they were so protected.

Since the remand by the Court of Appeals for the Ninth

Circuit, the Supreme Court has considered the scope of

the proviso in N. L. R. B. v. Servette, Inc., 377 U.S. 46.

In Servette™ we had followed our earlier roling i in Lohman

Sales Co., 132 NLRB 901, that products ‘‘produced by an

employer”? included products distributed by a wholesaler

with whom the primary dispute existed. The Court of

‘Appeals for the Ninth Circuit, applying its decision in the

instant case that the proviso only covered the manufacturer

of a physical product, reversed the Board (310 F. 2d 659).

The Supreme Court, in turn reversed the Ninth Circuit, and

approved of the Board’s interpretation pointing out that:

The proviso was the outgrowth of a profound Senate

concern that the union’s freedom to appeal to the

public for support of their case be adequately safe-

guarded. . . . It would fall far short of achieving this

basic purpose if the proviso applied only in situations

where the union’s labor dispute is with the manufac-

turer or processor. . There is nothing i in the legis-

lative history which suggests that the protection of the

proviso was intended to be any narrower in coverage

10 Respondent’s activities were not and could not have been

confined to a boycott of only the advertising component.

11133 NLRB 1501.

14a

than the prohibition to which it is an exception. .. .

(377 U.S. 46, at 55).

While Servette*andEohman both involved wholesalers

of a physical product, we are of the opinion that the

Supreme Court’s decision in Servette sustains our holding,

enunciated in Lohman, that ‘‘producer,’’ as used in the

proviso, encompasses anyone who enhances the economic

value of the product ultimately sold or consumed, i.e., for

the purposes of the proviso, no distinction is drawn between

processors, distributors and those supplying services.

Since the Court has stated that the protection of the proviso

is not ‘‘any narrower in coverage than the prohibition to

igh it is an exception,’’ and since the prohibition of

Section 8(b)(4)(B) covers the performance of services as

well as processing »rAlistribution of physical products, it

follows that the proviso likewise applies to the performance

of services.

‘

Accordingly, with all due respect to the Ninth Circuit’s

contrary view in this case,’* we adhere to our original con-

clusion that KXTV, by the addition of its services

(advertising) to the products involved here, is a ‘‘pro-

ducer’’ within the meaning of the proviso. Thus even

though the handbilling and related conduct calling for a

consumer boycott of secondary employers was coercive, it

nevertheless was protected by the proviso to Section

8(b) (4) of the Act.’®

12Tn a decision issued October 29, 1964, N.D.R.B. v. Joint Council

_ of Teamsters, No. 38, et al, 338 F. 2d 23, 26, footnote 3, the Ninth

Circuit has itself recognized that the Supreme Court’s decision in

Servette extends the proviso to encompass ‘‘services.”’

18 Our conclusion is buttressed by the Supreme Court’s observa-

tion in Tree Fruits that by the proviso, Congress authorized :

. . . publicity other than picketing which persuades the cus-

tomers of 2 secondary employer to stop all trading with him,

but not such publicity -which has the effect of cutting off his

deliveries or inducing his employees to cease work. (377 U.S.

58, at 70-71).

lda

Having concluded that the intervening decisions of the

Supreme Court in Servette and Tree Fruits support our

original holding with all due respect to the Court of

Appeals, we find it unnecessary to reach and pass upon

the second question raised in its remand, namely, whether

or not the actions were protected by the free press and

free speech provisions of the first Amendment to the Con-

stitution. That issue would arise only if we found the

actions were coercive and not protected by the proviso to

- that section of the Act.

In summary, we have found that, with but one exception,

. Respondents’ conduct did constitute threats, restraint or

coerqgion within the meaning cf Section 8(b) (4) (ii) (B) of

the Act, but that it is not violative of the Act because of

the protection afforded by the publicity proviso. We

accordingly reaffirm our original dismissal of the complaint,

Dated, Washington, D. C., December 16, 1964.

Frank W. McCutiocn, Chairman

Boyp Lerpom, Member

Joun H. Fannine, Memper '

\ -« Natronat Lasor Revations Boarp

(SzAx) '

14The Board has consistently taken the position that as an

administrative agency created by Congress it will presume the

constitutionality of the Act it is charged with administering,

absent binding court decisions to the contrary, Milk Drivers and

: Dairy Employees, Local 537 (Sealtest Foods), 147 NLRB No. 35;

Chauffeurs, Teamsters, and Helpers General Local Union No. 20

(Milwaukee Cheese Co.), 144 NLRB 826; Truck Driers Local 413

(Patton Warehouse), 140 NLRB 1474. Moreover, the Supreme

Court in Tree Fruit demonstrated the propriety of avoiding the

constitutional Bains & in this difficult area, if possible. Our inter-

pretation of the proviso does so.

| /

16a

APPENDIX C

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 17698

Great WESTERN BroapcasTING CorPoRATION, d/b/a KXTV,

Petitioner, ©

Nationat Lasor RELATIONS Boazp, Respondent

and

AMERICAN FEDERATION OF TELEVISION AND Rapio ARTISTS,

San Francisco Locan anp NatTionaL ASSOCIATION oF Broap-

cast EMPLOYEES AND TECHNICIANS, Loca 55, Intervenors.

Decree

Before: Barnes, Hamuey and JERTBERG, Circuit Judges.

Tus Cause came on to be heard ~pon thepetition. of

Great Western Broadcasting any A d/b/a KXTV,

filed December 29, 1961, to review an order of the National

Labor Relations Board, issued by it on December 27, 1961,

against the petitioner.

The Court heard argument of respective counsel on

July 11, 1962 and has considered the briefs and transcrjpt

of record filed in this cause. On November 9, 1962/ the

Court being fully advised in the premises handed down its

decision. In conformity ert it is hereby,

OrpERED, ADJUDGED AND Decreep that the order of the

said National Labor Relations Board under review be and

hereby is reversed and that this cause be and hereby is

remanded to that agency for consideration, on the present

record, with such ce ca thereof, if any, as it may

deem appropriate, of the additional questions, raised by

intervenors as noted in the opinion of this Court.

Frank H. Scummp

| ‘ Clerk ? 4

_ Filed and Entered Dec. 17, 1962 ;

ta oe

17a

[PART OF APPENDIX C]

Bie. 2d 591

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 17698

Nov. 9, 1962

Great WeEsTERN Broapcast1nc Corporation, d/b/a KXTV,

Petitioner,

Vv.

Nationau Lasor RELations Boarp, Resyondent

‘and

AMERICAN FEDERATION OF TELEVISION AND Rapio Artists,

San Francisco Locan anp NatioNat AssociaTION or Broap-

cast EMpPLoYEEs anp TEcHnicians, Loca 55, Intervenors.

On Petition for Review of an Order of the

National Labor Relations Board

[593] Before: BARNES, " Hafeiey and JERTBERG, Circuit

Judges.

Ham tey, Circuit Judge:

This is a proceeding to review an order of the National

Labor Relations Board dismissing an unfair labor practice

complaint. The case involves an attempt by two unions,

assertedly using coercive methods, to force several com-

panies to cease advertising on a television station with

which the unions were having a labor dispute. It was

charged that the union activity was proscribed by section

8(b) (4)(ii)(B) of the National Labor Relations Act, as

amended (Act), 29 U.S.C., § 158(b) (4)(ii)(B).

The charging party, and petitioner here, is Great

Western Broadcasting Corporation, which operates —

18a

vision station KXTV in Sacramento, California. The

unions, which were respondents in the Board proceedings

and are intervenors here, are American Federation of

Television and Radio Artists, San Francisco Local, and

National Association of Broadcast Employees and Tech-

nicians, Local 55. . r ;

The facts are not in dispute. A primary labor dispute

between the unions and:-KXTV resulted in a strike which

commenced on September 26, 1960. Picketing\of the KXTV

premises ensued. Among the advertisers who then regularly

used the services and facilities of KXTV for advertising

purposes were John Geer Chevrolet Company (Geer),

Capitol Studebaker Company (Capitol), Rainbo Baking

Company (Rainbo), Shel! Oil Company (Shell), Burger-

meister Brewing Corporation ( Burgermeister), and Handy-

Andy. Each of these advertisers is an employer engaged

in commerce or in an industry items commerce within

the meaning of the Act.

In an effort to win their labor dispute with KXTV, the

unions took the following action:

(1) had committees of the unions call upon all of

the advertisers who used KXTV for the purpose of

requesting them to discontinue their patronage of the

station and assist the unions in their cause against

KXTV;

(2) had a committee call upon Capitol for the same

purpose, in the course of which this advertiser was

told that if it continued to advertise on KXTV the

Labor Council would undoubtedly print the name of * .

Capitol in the Labor Bulletin as not supporting the

strike ;

(3) mailed to all KXTV advertisers a letter setting

forth the [594] background of the strike and request-

ing discontinuance @f advertising over the station,

19a

warning that failure to do so would bring an adverse

economic reaction ;! :

(4) printed and distributed four thousand handbills

listing KXTV as ‘‘unfair,’”’ and naming Geer, Rainbo,

Shell and Burgermeister as advertisers who neverthe-

less continued to utilize the services of the station, such -

_ distribution being Made in front of KXTV, at the

Sacramento Labor Temple, and at various Sacramento

grocery stores which handled Rainbo Bread and

Burgermeister beer}?

(5) sent a letter to the San Francisco Labor Council

asking the Council to return its Shell credit card to

that company and to request the members of affiliated

‘

unions to do likewise ; P

—__

1 This letter contained these statements:

“*,.. Any advertiser on this station while it is being operated

by strike breakers will give the impression of taking sides in

this dispute. ...

**, .- We are about to launch an intensive campaign to bring

. the facts behind this dispute to the attention of the entire

population covered by this station. We are sure you recognize

the obvious fact that many members of organized labor and

their families, and those sympathetic to the cause of organized .

‘labor, will have long-lasting resentment against any product

or sponsor who takes sides in this dispute by advertising on

this station during the course of this worthy strike.

“If you are currently advertising for clients on this station,

or have any advertising projected for the next six months, we

are sure you will wish to change your plans to avoid the

’ inevitable adverse reaction. .. .”’ ;

2 Copies of this leaflet were also found stuffed between loaves of

bread at a supermarket supplied by Rainbo. The Jeaflet carried

this note:

“‘This statement is directed to the customers of the above

* advertisers. It is not a request to employees to refuse to pick

up, deliver or transport, or to refuse to perform any service.’’

a | 20a

(6) sent a later letter to the San Francisco Labor

Council listing fourteen companies who were then ad-

vertising on station KXTV, with the observation that

‘fany aid’’ the Council and its affiliated members ‘‘can

give in this sponsor area’’ would be appreciated ;

(7) showed to the President of Handy-Andy, with

an appeal to stop advertising on KXTV, a copy of a

newly-printed leaflet which gave the background of the

labor dispute. with KXTV, named Handy-Andy as a

company which continued:-to do business with KXTV,

and added the comment: ‘‘We think you will agree

that this continued association is contrary to the best

interests of working people and the public’”’ ; ¥

(8) .telephoned the general manager of Geer and,

in conjunction with an appeal to have Geer cease

advertising on KX'T'V, informed him that a new leaflet

was being printed naming Geer ag a sponsor still

advertising on KXTV and that if Geer continued to

do business with the station, this leaflet would be

passed out in front of Geer’s establishment, among

other places.

As a result of the described union activity one KXTV

_ advertiser was subjected to a secondary boycott and at

_least two other advertisers ceased doing business with thaf

station.* .

8 One thousand of these leaflets were printed, and a like number

of ten similar leaflets were printed, each naming a different com- —

pany which continued to advertise on KXTV. None of these

leaflets, however, were distributed.

* As a result of the first letter sent by the unions to the San

Francisco Labor Council, Shell received numerous letters enclosing

Shell credit cards. The individual writers explained that they

would pick up their cards in the future:when Shell discontinued

its advertising over KXTV.

On October 10, 1960 Capitol cancelled its $8,500 advertising

contract with KXTV for the duration of the strike. In a letter

% ae irae 4 |

[595] There was no picketing, or threat to picket, the

place of business of any of the advertisers. -There was no

physical violence or threat of physical violence: The hand-

bills were truthful and their distribution was ‘peaceful.

None of the described union activity was designed to bring

about a work stoppage. by employees of any advertiser,

and none had that effect. ,

\ On these facts the Board, with one member dissenting,

held that the described union activity was protected by the _

publicity proviso at the end of section 8(b) (4) of the Act.5

of explanation, Capitol told KXTV that after ft televised com-

mercial one evening, the company’s phones were ‘‘jammed’’ from

7:00 to 9:30 P.M. by callers cliiming te~be union people’ These

callers criticized Capitol for not supporting the strike and, in sub-

stance, said that for this reason they would not do business with

the company.

On November 10, 1960,’and as a result of the pressure described

above, Rainbo ¢ancelled a $26,000 advertising contract which it

had entered into with KXTV a month previously. ; ;

5 Section 8(b) (4) provides in pertinent part: . . |

“*(b) It,shall be an unfair labo: practice for a labor organi-

zation or its agents— . ;

¢* ¢* # # @#

_ “(4) ... (ii) to threaten,. coerce, or restrain any person »

engaged in commerce or in an industry .affecting commerce, :.

where ... an object thereof is— - ‘ - ’

“B. forcing or requiring -any person to cease; using, selling,

handling; transporting, or otherwise dealing in the products’.

of any other ‘producer, processor or manufacturer, or to cease

doing business with any other person, ....,

‘Provided further, that for the purposes of this paragraph

(4) only, nothing contained in‘such paragraph shall be con-

strued to prohibit publicity, other than picketing, for the pur-

pose of truthfully advising the public, including consumers and

members of a labor organization, ‘that a product or products

are produced by an employer with whom the labor organiza-

tion has a primary dispute and are distributed by another

employer, as long as such publicity does not have an effect

22a

- The complaint was therefore dismissed in its entirety.

Petitioner here challenges the Board conclusion that the

publicity proviso is applicable under the facts of this case.

Tt contends that since that proviso pertains only to publicity

concerning a “product”? or ‘‘products’’ which are ‘‘pro-

duced’? by a primary employer and which are thereafter

‘‘distributed’’ by another employer, the service rendered

by a television station is not included therein.’

The Board, as respondent on this review, joins issue on

this point. * The two unions, which were respondents in the

/ agency proceeding and are intervenors here, support the

/ Board’s position that the publicity proviso is applicable

/ and protects the union activity in question.

In determining which of these conflicting constructions

oi the proviso is correct, the critical statutory words,

none of which are defined in the Act, are ‘“product,”’

‘‘produced,’’ and ‘‘distributed.’’

its broadest sense, the term ‘‘product’’ denotes any-

thing which is produced. Since eéonomic activity includes

the rendition of services, it is appropriate, where the. con-

text otherwise permits, to refer to a completed service as

a ‘‘product.”’ °

In this case, however, as all seem to recognize, the con-

_ text in which the term ‘‘product’’ appears in the proviso

inducing, any individual employed by any persom other than

the primjary. employer in the course of his emp!oyment to

refuse to pick up, deliver, or transport any goods, or not to

perform any services, at the establishment of the employer

engaged in such distribution;...’’ .

preliminary injunction against the unions which the Board

had ined, reported sub nom. Brown v. American Federation of

Television & Radio Artists, San Francisco Local, N.D. Cal., 191

F. Supp. 676, was thereafter dismissed.

- 1In support of the same proposition, the National Association of

Broadcasters has filed an amicus curiae brief in this court.

fy»

23a

precludes tle view:that the television service rendered by

KXTV, considered alone, is a ‘‘product’’ within the mean-

ing of the proviso. One reason for this con- [596] clusion

is,the fact that in two other places in section 8(b) (4), the

term ‘‘services’’ is used in contradistinction to tangible

articles.® It is likely that Congress would have followed

’ this same format if it had intended the publicity proviso

to.apply with regard to a primary employer who renders

services instead of manufactures tangible articles.

A second and still more persuasive reason why television

advertising service, considered alone, could not be a ‘‘prod-

uct’’ within the meaning of the publicity proviso lies in,

the fact that the only ‘‘products’’ there referred to are

| those which are capable of Being ‘‘distributed’’ by

a employer. ’” An advertising service rendered by a

evision station is not capable of being so ‘‘distributed,”’

least of all by an employer whose only relationship with

the station is that of an advertiser,

®In holding that the ‘‘privilege’’ which a television network

sells to a sponsor is not a ‘‘commodity’’ within the meaning’of sec-

tions 2(a) and 3 of the Clayton Act, 15 U.S.C., sections 13(a), 14 it

has been held that the most reliable guide t6 the meaning of the

word is the context in which it is employed. Colwmbia Broadcast-

ing System v. Amana Refrigeration, Inc., 7 Cir., 295 F. 2d 375, 378. .

® In section 8(b) (4) (i), the following words are used: . to

use, nianufacture, process, transport, or otherwise ade « or > work

on any goods, articles, materials, or commodities or to perform any

services; ...’’ ( Emphasis supplied. ) Near the end of the pub-

licity proviso itself, the following language appears: ‘‘. . . to

refuse to pick up, deliver, or transport any goods, or not to perform

any services,...’’ (Emphasis supplied.) In section 8(b) (4) (i) .

(ii) (B), while the word ‘‘services’’ is not used, the folfowing lan-

guage indicates the same differentiation between a primary em-

ployer who produces, processes or manufactures a tangible article,

and one who does not; ‘‘. . . to cease using, selling, handling, trans.

porting, or otherwise dealing in the producis of any other pro-

ducer processor, or manufacturer, or to cease doing business with

, any other person, ...’’ (Emphasis added.)

24a

The Board, however, believes that it has overcome this °

difficulty by holding that it is not the television service of

KXTYV, standing alone, which is the ‘‘product’’ here, but

the item being advertised on that station, KXTV becomes

one of the ‘‘producers’’ of the items advertised, the Board

reasons, ‘‘by adding its labor in the form of capital, enter-

prise and service . . .’’ to such items. |

It may be noted, however, even before testing the cor-

rectness of this line of reasoning, that it leads to the rather

remarkable conclusion that a television station can be a

producer of’ automobiles, bread, gasoline and beer.’°

“In reaching its conclusion the Board followed its decision

rendered on October 31, 1961, in Middle South Broadcasting

Co,, 1833 NLRB No. 1698. The primary employer in that

case was a radio broadcasting station. In turn, the decision

in Middle South Broadcasting was based upon the Board’s

decision rendered on August 10, 1961 in International

Brotherhood of Teamsters, etc. (Lohman Sales Company),

132 NLRB 901. There the primary employer was a whole-

sale distributor of cigarettes, cigars, other tobacco products,

candy, and related products. The issue was whether a

wholesale distributor is a producer of products within the

meaning of the proviso.

In the Lohman case the Board first determined that, so

far as human effort is concerned, labor is the prime requi-

site of one who produces." The Board then reasoned that

10 It also requires one to regard the advertisers of those products,

who either manufacture the article themselves or distribute articles

manufactured by companies having no connection with the tele-

vision station, as the ‘‘distributors’’ of articles ee by a

television station.

11TIn reaching this conclusion the Board relied upon: dictionary

definitions, primarily upon a definition of ‘‘product’’ to be found

in A. Meriam Webster, Webster’s New Collegiate Dictionary, 1959,

and an explanation of the term ‘‘production’’ contained in Black’s

€ 25a

not only the actual manu-[597] facturer, but also the whole-.

saler, adds ‘‘labor in the form of capital, enterprise, and

service to the product he furnishes the retailers.’’ ‘‘In this.

sense, therefore,’’ the Board stated, ‘‘ Lohman, as the other

employers who ‘handled’ the raw materials of the product

before him, is one of the producers of the cigarettes dis-

tributed by his customers. . . .”’

In the Board’s contemplation then, the ‘‘production’’ of

cigarettes includes every phase of activity, beginning with

the combination of tobaceo seed, earth and water, and end-

ing with the ready availability of cigarettes to the smoking

public. Each employer in the process of production begins

with what, to him, are raw materials, and ‘‘ produces’’ what

to him is a finished ‘‘product.’’ The wholesale distributor

_ (or in our case the television station) ‘‘handles’’ cigarettes

_ which are not yet readily available to the members of the

smoking public in the same sense as the manufacturer

‘‘handles’’ raw tobacco which has not yet become cigarettes.

In this sense the wholesale distributor and the television

station are producers of products capable of being dis-

tributed by their suce2ssors in the production process.

As we have indicated earlier in this opinion, the terms

‘*product,’’ ‘‘produce’’ and ‘‘production’’ may be con-

strued this broadly if they are not found in a more restric-

tive context. But, as we have also indicated earlier, the

Law Dictionary, Fourth Edition, West Publishing Co., 1951, pages

374-375. The latter definition i is as follows:

“*In political economy. The création of objects which con-

stitute wealth. e requisites of production are labor, capital,

and the materials and motive forces afforded by nature. Of

these, labor and the raw. materials of the globe are primary

and indispensable. Natural motive powers may be called i in to

the assistance of labor and are a hedp, but not an essential,

of production. The remaifing requisite, capital, is itself the

product of labor. Its instrumentality in production is there-

fore, in reality, that of labor in an indirect shape. Mill,

Political Economy; Wharton.”’

Osa

26a

context in which the words ‘‘produce’’ and ‘‘product’’ are

found indicates that in using them Congress was referring

to one kind of economic activity and its result rather than

to all économic activity and its result.

The Board proceeds on the assumption that Congress in-

tended ‘‘product’’ to encompass the results of all forms of

‘economically productive labor. Yet it concedes that a tele-

vision station’s product is not advertising but the subject

of the advertising. So long as the subject of the:advertising

is a tangible article these propositions need not lead to an

incongruous result.

But if, instead of a tangible article, the subject of the

television advertising is a service, such as’ banking or

cleaning, an internal inconsistency at once appears.” It

derives from the fact that while television advertising serv-

ice, as such, is not to be regarded as a ‘‘ product”’ under the

proviso, because it is not capable of being distributed, a

service being advertised on television is to be regarded |.

as a ‘‘product,’’ although it is equally — of being. .

distributed.

Thus, while the Board adopts a broad construction of

the term ‘‘product’’ in order to obviate the incongruity of

saying that a television advertising service is capable of

being distributed, we find that, after all, the underlying

difficulty has not been avoided. The Board is still saying

that a service, though oné being advertised rather than the

television service itself, is a ‘‘product,’’ although not

capable. of being distributed.

_ Only now the Board has involved itself j in the additional

difficulty of saying that a television station is a ‘‘producer’’ —

12 There is evidence in the case before us that the unions directed

informational activity against one bank and one dry cleaning

establishment. Since neither the bank nor the cleaners was found

to be engaged in. commerce or an industry affecting commerce,

however, the union’s activity with respect to them is not in

issue here. :

27a

of banking and cleaning services which are ‘‘distributed’’

by banks and cleaners, If the capacity for distribution re-

quire- [598] ment is to be ignored it might as well be at the

outset, with reference to television advertising service,

thereby avoiding the futile involvements inherent in the

Board’s broad construction.

The Board expressed the view in Lalindi that unless its

concept were accepted, it must follow that ‘‘vast numbers of

our working population produce nothing.’”!* The weakness

of this argument lies in the assumption that if, for the

purposes of the proviso, the term ‘‘product’’ must Be

limited to a tangible article it must follow that even in a

broad economic sense, only those engaged in manufactur-

ing tangible articles are ‘‘producers.”’

The two frames of reference should not be confused. For

the limited purposes of the proviso only those who déal with

tangible articles are ‘‘producers,’’ but in general economic

theory, all who engage in useful labor, whether or not

directly related to tangible articles, are ‘‘producers.’’ In

order to hold that a television station is not, within .the

meaning of the proviso, the producer of automobiles which

it advertises, it is not necessary to conclude that the engin-

eers, announcers, advertising men and others employed by

the station are not ““productive. ”? They perform a tele-

vision advertising service, just as the employees of Lohman

perform a distribution service. But since the fruit of their

labor is not capable of physical distribution by others, it is

not a *‘product’’-as that term is used in the proviso,

18 pista this idea,-the Board said i in Lohman:

. Their thought, labor, or business enterprise is not a

‘produ, ’ We do not believe that the plain meaning of the

words ‘product’ and ‘produced’ requires the Board to draw

an uncertain line between those employers engaged essentially

or only incidentally in the fabrication of products; between

those employers who create a new product or embellish an old

one; between products of the imagination and those that can

be seen, touched, or sme

28a.

The Board believes that the legislative history indicates

that the result reached in Lohman, Middle South Broad-

casting and this case, is what.Congress ‘Peally intended.

We very much doubt that the statutory language of the

publicity proviso is ambiguous with regard to the meaning

of ‘‘produced,’’ thereby warranting reference to legislative

history. While this term is not defined in the Act, the con-

text indicates to us that, in the proviso, Congress was re-

ferring to the activity of a primary employer in applying

capital, labor and enterprise to effect the conversion of raw

materials in his possession into a more finished tangyble

article.

In section 8(b)(4)(i)(ii)(B), which contains the only

statutory reference to the kind of employers who can be

the creators of ‘‘ products,’’ as that term is used in the Act,

the ‘words used are: ‘‘ ... the products of any other pro-

ducer, processor, or manufacturer... ’’'* The words

‘‘processor”’ and ‘‘manufacturer’’ refer to persons engaged: .

in a physical creative activity, and it is reasonable to be-

lieve that the word ‘‘producer’’ was used in the same sense.

There is no reason to believe that ™produced’’ fyas used in.

the proviso in any different sense than “‘producer’’ was

‘ used in section 8(b) (4) (i) (ii) (B).

But; assuming that resort to legislative history is appro-

priate, we believe it to be inconclusive as to the point under

discussion.

It is true that this history indicates that some Senators

and Congressmen expressed the view that inclusion of the

publicity proviso was necessary because-without it, section

8(b) (4) (ii)(B) might outlaw forms of publicity such as

leaflets, radio broadcasts, and newspaper advertisements,

14 The pertinept_part of section 8(b)(4) is quoted in note 5.

thereby impinging upon free speech."* The Board argues,

in effect, that there is no reason to believe [599] that .

gress was less interested in preserviug free speech wHere

the primary employer is a distributor, or a radio or tele-

vision operator, than when he is a manufacturer of tangible

articles.

29a

If all that Congress really had in mind in adding the

publicity proviso was to implement, with respect to leaflets,

broadcasting and newspapers, the free speeeh guarantee

of the First Amendnfent, the proviso was not needed and

would have to be regarded as surplusage. Section 8(c) of

the Act, 29 U.S.C. § 158(c), already in effect, provided com-

plete implementation of the First Amendment in this re-

gard.’ As intervenors in this case concede, section 8(c) is

‘‘no more than a restatement of the principle embodied in

the First Amendment,’ quoting NLRB v. LaSalle Steel Co.,

7 Cir., 178 F.2d 829, 835. ;

Section 8(c), however, does not protect, under the guise

of free speech, publicity activity which is associated with

15 ‘When the proposed 1959 amendment of section 8(b) (4) got

to conference without such a proviso, Senator Kennedy and Rep-

resentative Thompson expressed this concern. (105 Cong. Rec.

16591; II Legislative History of the Labor-Management Reporting

and Disclosure Act of 1959 [Leg. Hist.] 1708). The proviso was

thereafter added as a ‘‘clarification.”’ (105 Cong. Rec. #18022 ;

II Leg. Hist. 1712). discussing the addition of this proviso,

Senator Kennedy explqined that, without the proviso, the amend-

ment of section 8(b) (4) would have prohibited ‘‘the handing out

of handbills or even taking out dn advertisement in a newspaper.’’

(105 Cong. Rec. 17720, 17898-17899 ; II Leg. Hist. 1388-1389, 1482). .

Senator Douglas and Representative Udall Similarly expressed the

view that the proviso was necessary to protect free speech. (105

Cong. Rec. 19904, 18135; II Leg. Hist. 1834; 1722). :

16 Section 8(c) reads: <.

“*(e) The expressing of any views, argument, or opinion, or

the dissemination thereof, whether in written, printed, graphic,

or visual form, shall not constitute or be evidence of an unfair

labor practice under any of the provisions of this subchapter,

if such expression contains no threat of reprisal or’ force or

promise of benefit.”’ « ‘ :

tak

30a,

coercion, since that. subsection ends with the words, ‘‘ ...

if such expression contains n 10 $hreat of reprisal or force or

promise of benefit.’’ Thus if Congress desired to protect

any kind of publicity which ‘was associated with qercion,

“NG necessary to add statutory language which did not .

contain the limitations built into section 8(¢). Apparently

Congress did want to protect some publicity of this kind,

and so solved the problem by adding the publicity proviso.’”

This demonstrates, we think, that the meaning of ‘‘pro-

duced,’’ as used in the publicity proviso, is not to be given

an all-inclusive construction on the theory that Congress

was trying to guarantee free speech. On the contrary, it

suggests that since the publicity being protected by the pro- e

viso could be of a kind associated with threats, coercion, or

restraint. Congress did not intend an expansive exception

but chose words which would have limited application.

' « 17 The Board has itself held in Lohman, Middle South Broadcast-

ing Co. and the case now before us, that the publicity proviso ex-

cepts certain publicity although coercion may be involved. The

statutory authority for this is to be found } in section ae?) (4) (ii),

quoted in note 5. es

The Board said in Lohutan, at page 904:

. While such conduct otherwise might constitute restraint

and coercion, we agree with the conclusion of the Trial Ah

iner that Respondent ’s hand-billing in this was protec

by the proviso to Section 8(b) (4).”’ :

The Board ra eached a similar conclusion in its Middle _—

a Co. decision, saying, at page 1705:

... We also agree with his [Trial Examiner’s] finding that, ~<

unless protected by the Proviso to Section 8(b) (4),

leaflets urging a consumer boycott of secondary

still advertising on WOGA, would constitute ‘

coerciop’ within. the meaning of Section 8(b) (4) (fi) (B) and

a violation of that section.’

In the case. now before us the Board, in its decision, Fas A

reference, with approval, to its holding in Lohman™that publicity

activity may be protected by the publicity wis although _

activity ‘‘might constitute restraint and coercion. ...’’

dail icinal daar ttre

Serene

“

3la

"Had Congress intended to except ptiblicity concerning

primary employers whose own products were of an intangi-

ble nature not capable of ‘‘distribution,”’ the [600] proviso

could have been much simpler than that which was enacted.

It would have been sufficient to say that nothing contained

in such paragraph shall be construed to prohibit publicity,

other than picketing, ‘‘for the purpose of truthfully advis-

ing the public (including consumers) that an establishment

is operated, or goods are produced or distributed, by an

employer engaged in a lakor dispute. ... ”’ (Emphasis sup-.

plied.)

In fact these identical. words were proposed in a Senate

Resolution, instructing the Senate ‘conferees to S. 1555,

offered in the Senate on August 28, 1959, by Senators Ken-

nedy, McNamara, Morse and Randolph.* This resolution

was not adopted. |

Unlike the language proposed in the resolution which was

not adopted, the statutory proviso’ does not include among

designated primary employers, those who ‘‘operated’’

establishments or ‘‘distributed’’ goods. The only primary

employers referred to in the enacted proviso are those who

produee_a product or products. This class of employers is

further defined and restricted by the additional - provision

that the employer must be one who produces products capa-

ble of distribution. .

It seems unlikely that an easy way of expanding the cov-

erage of the proviso would have been rejected and detailed

limiting provisions (which under the Board’s reasoning °

become surplusage) would have been developed, if it had

_ been intended that the proviso was to have the broad cover-

age given to it by the agency.”

18 TI Leg. Hist. 1383.

19'We do not, however, agree with petitioner that’ significance

is to be attached to the fact that, during the Congressional debates,

which would permit publicity conce goods’’ or ‘‘ products.’’

“A close reading of the legislative history leads us to believe that

32a

~ The foregoing considerations lead us to conclude that the

publicity proviso which is a part of section 8(b)(4)(B)

does not protect publicity to the effect that television serv-

ice is renflered by a station with whom the labor organiza-

tion has a primary dispute, which service is" being utilized

by! other employers.

Intervenors argue, however, that even if the publicity

proviso is inapplicable there are two other reasons why the

Board order should be sustained. These are: (1) Section

8(b) (4) (ii)(B). relates only to union activity which tends

. to “‘threaten, coerce, or restrain,’’ and the activity here in

question was. not-of that kind; and (2) the union activity

involved in this case is protected by the free speech and .

free press provisions of the seas Amendment to the Fed-

eral, Constitution.

- The Board relied on neither of these ghiwnde in entering —_

its order here under review. With regard to the ‘‘coercion’”’

argument, a determination is complicated by the fact that

eight separate and distinct union actions are drawn into

oe Some may. be coercive and some may not.

:- Tour view, the Board should make a determination as

“' the merits of these'two additional arguments advanced

by intervenors before this court is called upon to consider

them.

The Board order under review is reversed and the cause

is remanded to that agency for consideration, on the present

record, with such augmentation thereof, if any, as it may

deem appropriate, of the additional questions raised by

intervenors, as noted above.

( Endorsed) Opinion Filed Nov. 9, 1962,, | .

Franx H. Scumm, Clerk.

reference to ‘‘goods’’ and ‘‘products’’ produced by non-union or

struck ‘‘manufacturers’”’ served only as an exemplification of the

typical secondary boycott situation rather than as a conscious ex- .

. pression of Congressional purpose.

33a .

APPENDIX D ©

134 NLRB 1617 i

————— "UNITED STATES OF AMERICA aie

- BEFORE THE NATIONAL LABOR RELATIONS BOARD

Case No. 20-CC-234.

AMERICAN FEDERATION OF TELEVISION AND Rap1o ARTISTS,

\ San Francisco Locan

NATIONAL ASSOCIATION OF BROADCAST EMPLOYEES AND.

Trcunictians, Loca 55

and

Great WestEeRN Broapcastine Corporation,

: d/b/a KXTV.

vw ’

Decision and Order ; Nee i

On May 4, 1961, Trial Examiner Howard Meyers idsue

—his Intermediate Report in the above-entitled proceeding,

. finding that the Respondents had engaged in and were en-

~~ gaging in certain unfair labor practices and recommending

‘that they cease and desist therefrom and take certain af-

firmative action, as set forth in the copy of the Intermedi-

ate Report attached hereto. Thereafter, the Respondents

filed exceptions to the Intermediate Report and a ‘support-

- ing brief and the Charging Party filed a brief in support of -

the Intermediate Report. ‘ |

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. -

, The Board has reviewed the rulings of the Trial Exam-

_ _iner made at the hearing and firids that no prejudicial error

was committed. The rulings are hereby affirmed. Thé

Board has considered the Intermediate Report, the excep-

tions and briefs, and the entire record in the case, and finds

merit in the Respondents’ exceptions. Accordingly, the.

34a

Trial Examiner’s findings, conclusions and recommenda-

tions are adopted only to the extent that they are consistent

herewith. t

The Facts!

(A primary dispute between the Siamsienie and KXT'V °

resulted in a strike which commenced about the end of Sep-

tember 1960, and picketing of the KXTV premises ensued

therefrom. John Géar Chevrolet, hereinafter Gear, Capital

Studebaker, hereinafter Capital, Rainbow Bread Company,

hereinafter Rainbow, Shell Oil Company, hereinafter Shell

and Burgemeister Beer, hereinafter Burgemeister and”

Handy Andy were advertisers who regularly used the serv-

ices and facilities of KXTV to promote the sales of their

products. About September 27, Respondents sent out a

general request through committees to all of the advertisers

who used KXTV to discontinue their patronage of the radio |

station and to assist the Respondents in their cause against.

KXTV. ®

On September 29 Respondents also mailed to the sponsors

a letter setting forth the background of the strike and again

requested the sponsors to discontinue advertising over sta-

tion KXTV. As a result of pressure ensuing from this

campaign Capital canceled its advertising contract with

KXTV and in a letter to the television station explained

that its phones were jammed with people stating| that they

would not buy Capital’s cars because they eontinued to

advertise over the station ’s facilities.

Thereafter on October 25 Respondents caused to be

printed a leaflet? in which Gear,’ Rainbow, Shell and Burge-

meister were named as sponsors who continued to use the

1 The facts are set forth as found by the Trial Examiner based

on stipulations submitted at the hearing and, therefore, not ex-

eepted to. The Respondents did except to the failure of the Trial

Examiner to set forth additional stipulated facts. These are added.

2 This is the leaflet No. 1 set forth in full in the Intermediate

Report.

35a

facilities of KXTV despite the Respondents’ requests that

the sponsors refrain therefrom. This handbill was distrib-

uted at the picketline in front of KXTV, at the Sacramento

Labor Temple, and at various Sacramento grocery stores

who handled Rainbow Bread and Burgemeister Beer.

Copies of the leaflet were also found stuffed between loaves

of bread at one of the supermarkets supplied by Rainbow.

As a result of this pressure, on November 10 Rainbow can-

celed its contract with KXTV.

On October 31 the Respondents sent a letter to the San

Francisco Labor Council* in which the Respondents re-

quested that the Labor Council ask its members and affili-

ated unions to aid Respondents by returning their Shell Oil

Company credit cards because Shell continued to advertise

through the facilities of KXTV. As a result of this request

Shell received numerous letters inclosing Shell credit cards

in which the individual writers explained that they would

__, pick up their cards in the future when Shell discontinued its

bd advertising over KXTV.

On November 10 the Sacramento Central Labor Council

asked Shell directly by letter to discontinue use of the facili-

ties of KX'EV. Apparently Shell did not respond to this

pressure.

On December 13 Respofdents ordered additional copies

of 11 separate leaflets naming 11 sponsors who continued to

use KXT'V’s facilities stating that the firms named did not

merit the patronage of the public to whom the handbill was

\ addressed because the firms continued to do business with

KXTV.* Although copies of these leaflets were not circu-

‘lated, a copy was shown by the Respondent to Handy

Andy’s president and at the same time an appeal was made

~~ to Handy Andy to discontinue advertising on KXTV. .On

.* This letter of October 31 is also set forth in full in the Inter- .

mediate Report.

* The Intermediate Report refers to this leaflet as Leaflet No. 2°

and sets forth the leaflet in full. .

36a

: . 0

December 17 Respondents telephoned Gear’s general man-

ager and threatened that a ledflet was being printed in

which Gear would be named as an unfair advertiser unless

Gear discontinued using KXTV’s facilities. Thereafter

under date of December 27 Respondents again appealed to.

the Labor Council to enlist the Labor Council’s support

again in their strike with KX TV requesting that the Coun-

cil’s constituents’ members refuse to purchase the products

“of the list of sponsors included therein,who were still ad-

vertising on KXTV. As a result of this letter on January

6, 1961, a synopsis of the San Francisco Labor Council’s

meeting of January 6, 1961, was mailed to everyone on the

‘mailing list including member unions and individual mem-

bers in which it was again requested that these people dis-

continue the purchase of the products or the use of services

of Gear, Blue Seal Bread, Shell Oil, Hamms Beer, Conti-

nental Baking, Dr. Mann Optometrists, Baker Moving and

Storage. and Crocker-Anglo Bank all of whom were still

advertising on KXTV.

There was no picketing at places of business of any of the.

advertisers, the picketing being confined to KXTV prem-

ises. The handbills, hereinbefore mentioned, specifically

stated that the Respondents did not request employees to

cease performing services for their respective employers.

The General Counsel makes no contention to the contrary,

and in fact concedes in a stipulation submitted at the hear-

ing that there was no picketing at any of the sponsors nor

was there any work stoppage as a result of the publicity.

Nor is there any contention that the leaflets were untruth-

ful, that the picketing of KXTV was unlawful, that the

handbills constituted picketing, or that the conversations

had with the various sponsors before the occurrences of

handbilling constituted threats to picket. The Respond-

ents admitted that in addition to handbilling, union officials

informed members at meeting halls and members of the

public at other places that certain advertisers were con-

tinuing to advertise on station KXTV, during the strike

37a

and asked them not to patronize these advertisers; that

union officials orally requested the advertisers to stop ad-

vertising before mentioning the publicity of handbilling, -

and the General Counsel is not contending that such oral

requests standing by themselves are unlawful. It was con-

ceded that there were no threats of physical violence or

work disturbances and that at no time was there any

action taken by the Respondents’ officers with respect to

employees of any employer aside from KXTV as to con-

tinuity of work. Nor does the General Counsel @intend

that it was unlawful under the Act for advertisers volun-

tarily to withdraw their advertising from station KXTV

during the strike nor to do so upon oral request of union

officials not accompanied by threats, restraint or coercion.

Moréover the General Counsel does not contend nor was

there any proof that any member of the public other than

the sponsors or advertisers was threatened, restrained or

coerced by the Union in connection with the distribution

of the handbills, nor does the General Counsel contend or

contest the fact that the Union left it entirely up to the

voluntary choice of the public other than the sponsors or

advertisers as to whether or not they wished to withhold

patronage from advertisers who continued to use the facili-

ties of KXTV. Finally, the General Counsel does not con-

tend that the distribution of the handbills was other than,

peaceful.

However, the General Counsel does contend, as does the

Charging Party, that the handbilling was not protected un-

der the proviso to Section 8(b) (4) which protects publicity

other than picketing because the Respondents’ conduct

was designed to inflict economic injury upon and to restrain

employers and not merely to peacefully convey facts of the

‘primary dispute to the public. They further contend that

in any event the said proviso is not applicable here because

KXTV, the primary employer, did not produce products

which were distributed by the secondary employers above-

named within the meaning of the proviso.

~ 38a

' The Trial Examiner, without explication of his reasons

. therefor, concluded on the foregoing facts and contentions

that the conduct of,the Respondents constituted violations

of Section Srey) (ii)(B). We do not agree with his con-

clusions.

Only recently, the Board in the Lohman case’ held that

although handbilling and threats to handbill in a manner

‘similar to that set forth above might constitute restraint -

and coercion, nevertheless, suc conduct was protected by ~

the proviso to Section 8(b)(4) which specifically permits

truthfully advising the public, including consumers and —

members of labor organizations, that a product or products

are produced by an employer with whom a labor organiza-

tion has a primary dispute. Under these circumstances,

we conclude, that the handbilling and threats to handbill as

set forth above were protécted activities and therefore not

violative of the Act provided, hawever, that the named

proviso is otherwise applicable to the situation presented.

Nor can we perceive of any reason to find the conduct un-

protected because some of the handbills were found with-

in the premises of a distributor of the products of a sponsor

whd advertised over KXTV. The literature was truthful,

no work stoppage resulted, and the purpose of the distribu-

tion of the handbills in this fashion was to inform the pub-

lic of truthful facts. Additionally, as we similarly held

in the Lohman case, since the distribution of such handbills

is protected by the proviso so also were the threats by the

Respondents to Gear and to Handy Andy that handbills

would be distributed unless these employers ceased adver-

tising over the facilities of KXTV.

We come then to the issue of whether the proviso to Sec-

. tion 8(b)(4) is otherwise applicable to the situation pre-

sented in this case. As stated above, it is contended that

the proviso is not applicable here because KXTV provides

a service and does not produce a product within the mean-

5 Lohman Sales Company, 132 NLRB No. 67, issued August

10, 1961.

~ 7

| 39a

ing of the proviso. We have recently dealt with a similar

issue involving a broadcasting company as a primary em-

ployer’in the Middle South Broadcasting case. There we —

held that the publicity proviso is applicable because the

primary employer radio station, by, adding ‘its:labor in

the form of capital, enterprise and service to the products

which it advertises for secondary employers becomes one

of the producers of the product which it advertises. And,

of course, the secondary employers who are retail distribu.

tors of the products clearly distribute such products with-

in the meaning of the proviso. Accordingly, we find for

these reasons that the proviso is applicable here and that

the distribution of the handbills was p@otected thereby.

We come’ finally to the question of whether requests to

members of the Labor Council not to purchase the products

or use the services of advertisers who continue to use the

facilities of KXTV were unlawful. We need but to resort

once again to the wording of the proviso for the answer

to this contention. The proviso specifically states that the

request not to use a product is protected where the pur-

pose is to truthfully advise the public, including con-

sumers and members of a labor organization, that a product

or products are produced by an employer. It is therefore

clear that the Act specifically enables a union which is in-

volved in a primary dispute to seek assistance in such

dispute- from members of the public including members

of a labor organization. Therefore, we conclude that the

requests of the Central Labor Council that its members

not use the products of the named advertisers was fully

protected as permissible dissemination of truthful informa-

' tion.

Accordingly, we find that the Respondents’ leaflet cir-

culation and distribution and threats to circulate and dis-

tribute were protected by the publicity proviso to Section

8(b) (4), and therefore were not violative of Section 8(b)

(4) (ii) (B). ss

® Middle South Broadcasting Co., 183. NLRB No. 165.

40a

As we have found that the Respondents’ leaflet distribu-

tion and oral and written requests were not: unlawful, we

shall dismiss the complaint in its entirety.

ORDER

Ir Is Heresy Orverep that the complaint herein be, and it

hereby is, dismissed in its entirety.

Dated, Washington, D. C.; Dee. 27, 1961.

Frank W. McCutiocs,

Chairman

Joun H. Fannine,

Member

(SEAL)

Nationa Lasor Reiations Boarp

_ PH Ray Ropcers, Member, dissenting:

In Middle South Broadcasting Company, 133 NLRB No.

165, I dissented from my colleagues’ conclusion that the

publicity proviso to Section 8(b)(4) protected handbilling

where the primary dispute involved a radio station. Here,

too, as the primary Employer, KXTV, a television station,

produces no products, the proviso is unavailing as a de-

fense. Accordingly, I would find the Respondent’s threats

to handbill and its subsequent handbilling to be violative of

Section 8(b) (4) (ii) (B) of the Act.’

Dated, Washington, D. C., Dec. 27, 1961.

Pump Ray RopceErs,

Member

Nationa Lasor RELATIONS BoarD

7In view of my conclusion that Respondent’s threats and sand.

billing violate Section 8(b) (4) (ii) (B) of the Act and that an appro-

priate remedy would require Respondent to cease and desist from

such conduct, I find it unnecessary to pass upon the further ques-

tion whether the Sacramento Labor Council’s implied threat to

place the/Shell Oil Company on its ‘‘We Do Not Patronize’’ list

would otherwise qualify ag ve within the meaning of

the provi |

A A NS tt Lab i Ni ka ool Ne ip Sst PAM iat EEO tereil

wud

othe

See NO Oe TE TT OS Se OE ae TET

& O

gore

: a

APPENDIX E

National Labor Relations Act,‘as amended — US.C. § 141

et seq.) a

t * ’ « *

~ Unfair Labor Practices ;

& * * * *

‘Sec. 8(b) It shall be an unfair labor practice for a labor

organization or its agents—

* * * * baad

**(4) (i) to engage in, or to induce or enourage any

individual employed by any person engaged in com-

merce or in an industry affecting commerce’to engage

in, a strike or a refusal in the course of his employment

to use, manufacture, process, transport, or otherwise

handle or work on any goods, articles, materials, or

commodities or to perform any services; or (ii) to

threaten, coerce, or restrain any person engaged in

commerce or in an industry affecting commerce, where

* in either case an object thereof is:

‘*(A) forcing or requiring any employer, or self-

employed person to join any labor or employer or-

ganization or to enter into any agreement which

is prohibited by Section 8(e) ;

‘*(B) foreing or requiring any person to cease

using, selling, handling, transporting, or other-

wise dealing in the products of any other producer,

processor, or manufacturer, or to cease doing busi-

. hess with any other person, or forcing or requiring

any other employer to recognize or bargain with a

labor organization as the representative of his em-

ployees unless such labor organization has been cer-

tified as the representative of such employees under

the provisions of section 9: Provided, That nothing

contained in this clause (B) shall be construed to

make unlawful, where not otherwise unlawful, any

primary strike or primary picketing;

0 ee

SE Pe ye rte

‘*4C) forcing or requiring any employer to recog-

nize or bargain with a particular labor organization

as the representative of his employees if another

labor organization has been certified as the repre-

sentative of such employees under the provisions of

section 9;

‘*(D) forcing or requiring any employer to assign

' particular work to employees in a particular labor

organization or in a particular trade, craft, or class

rather than to employees in another labor organi-

zation or in another trade, craft, or class, unless such

employer is failing to conform to an order or certi-

fication of the Board determining the bargaining

representative for employees performing such work;

Provided, That nothing contained in this subsection (b)

shall be canstrued to make unlawful a refusal by any

person to enter upon the premises of any employer

(other than his own empioyer), if the employees of

such employer are engaged in a strike ratified or ap-

proved by a representative of such employees whom

such employer is required to recognize under this Act:

Provided further, That for the purposes of this para-

graph (4) only, nothing contained in such paragraph

shall be construed to prohibit publicity, other than

picketing, for the purpose of truthfully advising the

public, including consumers and members of a labor

organization, that a product or products are produced

by an employer with whom the labor organization has

a primary dispute and are distributed by another em-

ployer, as long as such publicity does not have an ef-

fect of inducing any individual employed by any per-

son other than the primary employer in the course of

his employment to refuse to pick up, deliver, or trans-

port any goods, or not to perform any. services, at the

establishment of the employer engaged in such distri-

bution ;”’ e

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.