# Petition for Writ of Certiorari — Great Western Broadcasting Corp. v. National Labor Relations Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_1450%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1966 - **Citation:** 384 U.S. 1002 ## Text 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, Va 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 s/f \ Page I I Sooo hae evades scen aces 1 Bo Oe TTT CPT T TET ECR COTE TTR TET ere 2 Questions PRESENTED ........:......60. Héteasaaees 2 STATUTE INvoLvED Ewabsgde eh asOveG erie eesieaabanes 5 STATEMENT OF THE CASE ..........0.eeeeeecceeeecees Hy) Fee eee ee eee Py eae 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 I 55 4005-45505 ot hehe eae seens wena 16 ME Be oo inn au sccak chan acess usuaeeousanan la ° PD MeTTTeTeTTe Prete. Secepeeline ae eee 7a Bs rr re Ce re re ere eee l6a SE OP Sa Wh 58 598 his aka een en saeiae 33a Pe Perera err ee eer f ee arr 4la 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 at 4 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 ; — 4 P| P 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 BS ‘ 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. ’ 4 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. a teen! Cie et aati ile 4 a ee ee ce ill 5 “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 ae J 6 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). ‘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- 15 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 16 - 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. ee ; 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 G 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. v 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.”’ « ‘ : id 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 L 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. 4 :- 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. 9 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. rs 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 oe | 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 a (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 W --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_1450%3A1. Public record. Not legal advice.