Objection of Respondent — NLRB v. Servette, Inc.

IN THE

‘Supreme Court,of the United.

‘Ocala “rex Term {963

No. lll

. feiss: see

NATIONAL LABOR RELATIONS BOarp, °

Ze Petitioner,

7 ee VS.

*° Servettr, Inc...

On Writ of Certiorari to the United States Court of

Appeals for the Ninth Circuit. :

Objection by Respondent, Servette, Inc., to Motion foe

Leave to File a Biief Amici Curiae by American

Federation of Television and-Radio Artists, San Fran-

cisco Local, and National Association of Broadcast .

Employees and Technicians, sob means

a

Hit, Farrer & BuRRILL, *

Cart M. GouLp, ,

STANLEY E. Tosrn,

MALCOLM A.. MisuRAca,

., 411 West Fifth Street,

Los Angeles 13, California,

‘. Attorneys for Servette,‘Inc.

Parker & Son, Inc. Law Printers, los Angeles. Phone MA. 69171.

o*

. ’

’$

TABLE OF AUTHORITIES CITED

Cases Page

Great Western Broadcasting Corporation v. N. L.

a. B., 310 F. 2d 591 5

Honeyman v. Hanan, 300 U, S.14 ..c.cccscvsie

"_Knetch v.. United States, 364 U. S. 361 ....2s)

Parker v. ‘County of Los Angeles, 338 U.S. 327 ..

Partenweederei, MS. sae v. Weigel 313 F.

36 cnc

| Rescue Army v. Municipal Court, 331 U. S. 549 ....3,

United States v. Hayman, 342 U. Se Ss

-

United States v. Singer Mfg. Co., 374 U. S. 174 2."

a

? | Rules

United States Supreme Court Rules, Rule 42, Sec: i

4 Statutes :

National Labor Relations Act, te) See

National Labor “Relations Act, Sec. 8(b) (4) (ii) ....

National Labor. Relations Act, Sec. 10(e) ........... 2,

—

~

“*

ae

IN {THE *

_ Supreme Court of the United States

Mover Term 1963.

‘. No. 111

——

NaTIONAL Lasor RELATIONS Boarp,

° . : Petitioner,

— a Fadia

&-

SERVETTE, INC. -

On Writ of Certiorari to the United States Court —

Appeals for the Ninth Circuit.

Objection ‘by Respondent, Servette, Inc.,.to Motion for

Leave to File a Brief Amici Curiae by American

gi Loa an atin of San Fran- —

' cisco Local, and National Association Broadcast

° Employees and Technicians, Local 55.

To the Honorable, the C hief Ji wahlas and the Associate

Justices of the — Court of .the United ,

States:

Respondent, Servette, Inc., begs leave of this Hon-

orable Court to object to the Motion for Leave to File.

2 Brief. Amici Curiae by the American Federation of

- Television and Radio Artists, San Francisco Local,

and the National Association of Broadcast Employees

"and Technicians, ‘Local 55.

The sole issue before this Court with respect to Sec-~

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

- is whether .a boycott by a union of neutral. parties is:

Cg

exempted from violating the Act by virtue of the sec-

‘“ond proviso to that section. Amiici Curiae seek to

taise two additional questions, to which Respondent

objects on the following grounds:

1. Neither question is timely hwained tothe Court

in accordance with its long-standing rule that issues

shall come to the Court only after they are orderly dd-°

judicated in the courts below.

The court of appeals in this case ruled in response -

to-a motion for clarification filed by the National La- |

bor Relations Board that these issues were not proper-

ly before the court. They were raised neither by the

_ Board in its opinion nor by either. party to.the court of

"appeals in briefs or argument. The court stated that

“the first intimation of such grounds in the instant

case. was raised on the motion‘for clarification.” [R. p.

105; 313 F.2d 66, 67.]- Amici Curiae-are incorrect in

suggesting that the court refused to consider these ques- .

tions solely on the ground of Section 10(e) of the Act.

Before noting the applicability of that section, the court

relied on its holding in Partenweederei, MS Belgrano

v. Weigel, 313 F.2d 423 (9th Cir. ~s in which the

‘ court ruled:

It. is sound policy to require that all claims

be presented to the trial court, and not raised: for

the first time on appeal, nor, a fortiori, as herein,

_ina petition for rehearing on appeal. This require-

ment. sets the’ scope of the lawsuit, thereby pre-

venting piecemeal litigation and consequent waste

of the time’ of both trial and appellate courts. It

assures that the opposing party will know the

. claims he must meet. It gives the appellate court

te.

jt

the benefit of the district court’s wisdom, and it

- prevents a litigant from asserting before this Court

a cldim which he deliberately chose, for reasons

of strategy, not to assert below. : 3

~ (313 F.2d 423, 425.) Clearly, Amici are in error in’

asserting that the court below primarily grounded its

" refusak to consider these questions on Sectiori 10(e)

of the Act. ,That court quite properly held that the

failure to present. these issues prior to the motion for:

clarification’ precluded their consideration, Manifestly,

then, even greater reasons argue against this Court’s.

entertaining these questions now.

See also, S

Rescue Army v. Municipal C Court, 3H U. S. 349

(1947); |

United States v. Singer Mfg. Co. 374 U. S.

* 174, 175 n. P (1963).. :

2. Amici Carlee should not be allowed to inject into

this case issues not raised by the parties.

Amici Curiae concede that neither the National La-

bor Relations Board nor the Respondent has raised to °

the Court the issues that Amici seek to raise. (Mo-.

tion for Leave to File.a Brief Amici Curiae, p. 5,

‘par. 4.) Briefs amici curiae are not favored by the

Court (United States Supreme Court Rules, Rule 42,

Section 1); and in any event Amici Curiae should not

be allowed to inject new issues into this case. Kietch

v. United States, 364 U. S. 361, 370 (1960).

3. The asserted RENE, question is premature

and not timely ‘raised, ‘and thus does not conform to

this Court’s ftylicy against unnecessary consideration of

constitutional issyes. ‘

0 ee

ws aie aS

"The question whether a boyiott is illegal does not

raise'a first. amendment issue. If it did, every case

involving the/construction of a statute prohibiting boy-

cotts—the Sherman Act, for example—would present

ae ‘free speech issue. Thi§ Court has repeatedly held

’ that it will not for the convenience of the patties an-

ticipate constitutional issues even where they ‘eet

otherwise have been properly raised. United St

Hayman, 342 U.S. 205 (1952); Parker v. County

Los Angeles, 338 U.S. 327 (1949); Honeyman a.

‘Hanan, 300 U.S. 14 (1937). This Court analyzed

‘its policy in Rescue Army v. Municipal Court, 331

U.S, 549 (1947), when it stated; at page 570:

‘ue Moreover the policy is neither merely procedural

_* mor in its essence dependent for- applicability upon x

the diversities of jurisdiction and procedure, wheth- —

er of the state courts, the inferior federal courts,

‘cr “this Court. Rather it is one of substance,

grounded i in considerations which transcend all such

particular limitations. Like the case ‘and contro- —

versy limitation itself and the policy against en-

tertaining political questions, it is one of the rules

‘basic to the federal system and this Court’s ap-

propriate place within that structure. ©

‘4. Moreover, the factual record in this case icles

_ the argument of Amici Curiae in regard t@ the “co-

: ercion’ " issue moot.

Even if the arguments seein by Amici Curiae

were otherwise properly before this Court, their po-

sition that handbilling and threats thereof do not per.

‘~~

~ —5t-

se constitute “coercion” within the meaning of Sec-

tion 8(b)(4) is misplaced. Not only do both the Board

and Respondent disagree with Amici Curiae on this

point, but the stipulated facts-in the pecord in this

case show that the Union’s actions did have a direct

"and detrimental economic effect on neutral parties, thus

placing this case in a’ different posture than. N.L,R.B.

- vu. Fruit & egetable Packers, No. 88, and rendering

‘the ia of Amici Curiae in this regard inappli-

(5). The very questions tees: by Amici Curiae

are before the National Labor Relations Board in an-

other action and await decisign in the lea process

of judicial administration. - hs :

Amici Curiae are parties to N.. ‘L.'R. B: Case No.

20-CC-234, which is presently before the National La-

‘bor Relations Board upon remand by the Court of Ap-

*peals for the Ninth Circuit to the Board for its con- ©

\ +

sideration of the issues raisedeby Amici Curiae. Great

Western Broadcasting Corporation v. N. L.-R. B.,

310 F.2d 591 (9th Cir. (6a).

Amici Curiae not only” attempt to anticipate those

issues here, but to circumyent their consideration by

the National Labor Relations Board and the Ninth Cir-:

cuit Court of Appeals in the. Creat Western apes

casting case.

The foregoing considerations present the Court with

several substantive reasons for denying leave to Amici

Curiae to file\their brief. In this case the presenta-—

tion of ‘theirZissues: would be untimely and would pre-

‘vent the Court from’ having the wisdem and judg-

ment of the 4ower courts. In Great Western Broad-

: casting, ‘the lower courts would be deprived of their

usual function, to hear and judge these issues in the

orderly course of judicial administration.

Wherefore, Respondent respectfully requests that the

potion be denied.

‘Dated: October, 1963.

Hi, iia & Burritt,

Cart M. GouLp, .

STANLEY E. Tostn,

Matcotm A, Misuraca, _

By STANLEY E. Tostn, .

Attorneys for Servette, Inc.

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