Brief in Oppositon — Great Western Broadcasting Corp. v. National Labor Relations Board

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AN A AE OA a NF he Ch AO i eS TG Ee i ea BO le ce Pas ot * a ARR OEE, I

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) If, as this Court held in Servette, ‘‘producer’’ 4s

-used in. the proviso is broad enough to: include. a

wholesaler, it is also broad. enough to include a telé-

vision station which furnishes. advertising services}

. the station, indeed, is if anything’ more akin to a

conventional producer than a distributor is, albeit

’ the station’s “‘products” are intangible. Under the

reasoning of Servette, the proviso must be this broad.

The prohibition of Section 8(b)(4)(B). againstcer-

tain ‘secondary boycotts extends to boycotts of televi-

sion stations or other suppliers of intangible services.’

/€Therefore, if publicity against such suppliers is not

/ within the proviso, the proviso is ‘‘narrower in cov-

erage than the prohibition to which it. is an excep-

tion’’—a reading rejected by this Court in Servette.

Furthermore, this Court has explained preen the pub-

licity proviso of Section 8(b)(4)(B) was’ ladded to

dispel the serious First Amendment questions that

wo lave been raised by -a prohibition against

ion -efforts to enlist publig support in a dispute

‘with an employer. National Labor Relations, Board

v. Frut & Vegetable Packers {Tree Fruits), 377

* See, ¢.g., National Labor Relations Board y.. Associated

Musicians (Gotham Broadcasting Corp.), 226 F. 24 900 (C.A.

2), certiorari’ denied, 351 U.S.' 962; ‘Teamsters, Local 901

(“Editorial Imparcial”), 184-N.L.R.B. 895, 901, Section 10(2)

injunction -sustained on appeal, Zocal 901, Toamatere’ v. Compton,

991 F.2d 3, (C.A. 1); Looal Union 184, Int'l TYierrephiei

Union (Ypsilanti aren), 135 er. 991, 996. “o.

~ ‘ Fes iy ! 11324

PAPER a Lite Ae idler wid YE ms m0

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that Servette can properly be limited to its facts, i

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U.S. 58, 63-70. These’ questions would persist if a

dispute with a supplier of services was excluded from

the Proviso,’ and the Publicity that the unions engaged

in here was therefore forbidden. ,

*This we think answers petitioner’s nati (Pet. 1-18) |

tribution of a tangible product; sucha limitati

inconsistent with this Court’s reasoning. Nor/is it’ material

that the Court bolstered its conclusion in case by refer-

ence (at 377 U.S. 55-56) to cases where wholesaling “had been

held to constitute “production”’ under the air Labor Stand-

ards Act, 29 U.S.C. 203(j). ‘ The Court relied on the FLSA

merely by way of analogy ; it. did not suggest that the meaning

given to the terms, used in. that earlier and different statute

reflected Congress’ purpose in enacting the 1959 proviso to the

NLRA. If FLSA precedents be relevant here, we point. out

that employees engaged in a wide’ variety of service operations

have been held to be engaged in the production (or in work

jhécessary to the production) of goods for’ commerce within

the meaning of the FLSA. See, ¢.g., Kirschbaum Co. v. Walling,

316 U.S. 517 (employees engaged in maintenance of loft build-

ings, the tenants of which were engaged in the production of

goods for commerce); Bozant v. Bank of New York, 156 F.

2d 787 (C.A. 2) (maintenance employees in bank building) ;

Union National Bank of Little Rock v. Durkin, 207 F. 2d

848 (C.A. 8) (maintenance employees in bank building) ;

Goldstein v. Dabanian, 291 F. 24 208 (C.A. 8) {employees of

check cashing service); Public Bldg.. Authority of Birming-

ham v. Goldberg, 298 F. 2d 367 (C.A. 5) (maintenance em-

ployees employed by a private contractor managing a building

housing federal employees engaged in processing social secu-

rity claims from a multi-state area); Mitchell v. Dooley Bros.,

Inc., 286 F. 24 40 (C.A. 1) (employees of independent con-

tractors providing: cleaning and garbage removal services to

businesses engaged in commerce or in the production of goods

for eemnaatit a e

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CONCLUSION ’

The petition for a writ of certiorari should be

denied. iiss” !

_Respectfully submitted.

Tuurcoop MARSHALL,

Solicitor General.

ARNOLD ORDMAN,

’ General Counsel,

Dominick L. MANOLI,

Associate General Counsel,

Norton J. Come,

Assistant General Counsel,

National Labor Relations Board,

JUNE 1966. —_—

U.S. GOVERNMENT PRINTING OFFICE: 1966