Great Western Broadcasting Corporation v. NLRB

• Decision Date: 09 November 1962
• Docket Number: No. 17698.,17698.
• Citation: 310 F.2d 591
• Parties: GREAT WESTERN BROADCASTING CORPORATION, d/b/a KXTV, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and American Federation of Television and Radio Artists, San Francisco Local, and National Association of Broadcast Employees and Technicians, Local 55, Intervenors.
• Court: U.S. Court of Appeals — Ninth Circuit

310 F.2d 591 (1962)

GREAT WESTERN BROADCASTING CORPORATION, d/b/a KXTV, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and American Federation of Television and Radio Artists, San Francisco Local, and National Association of Broadcast Employees and Technicians, Local 55, Intervenors.

No. 17698.

United States Court of Appeals Ninth Circuit.

November 9, 1962.

COPYRIGHT MATERIAL OMITTED

Pillsbury, Madison & Sutro, and Charles F. Prael, Noble K. Gregory, William I. Edlund, and James F. Kirkham, San Francisco, Cal., for petitioner.

Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Melvin J. Welles, Herman M. Levy, and Norton J. Come, Attorneys, National Labor Relations Board, Washington, D. C., for respondent.

Neyhart & Grodin, Duane B. Beeson, San Francisco, Cal., and Mortimer Becker, New York City, for intervenors American Federation of Television and Radio Artists, etc.

Douglas A. Anello, Robert V. Cahill, and David L. Doughty, Washington, D. C., Amicus Curiae, in support of petitioner, National Association of Broadcasters.

Before BARNES, HAMLEY and JERTBERG, Circuit Judges.

HAMLEY, 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 companies 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 television 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 Technicians, Local 55.

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), Shell Oil Company (Shell), Burgermeister Brewing Corporation (Burgermeister), and Handy-Andy. Each of these advertisers is an employer engaged in commerce or in an industry affecting 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 background of the strike and requesting discontinuance of advertising over the station, warning that failure to do so would bring an adverse economic reaction;¹

(4) printed and distributed four thousand handbills listing KXTV as "unfair", and naming Geer, Rainbo, Shell and Burgermeister as advertisers who nevertheless 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;²

(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;

(6) sent a later letter to the San Francisco Labor Council listing fourteen 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 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";³

(8) telephoned the general manager of Geer and, in conjunction with an appeal to have Geer cease advertising on KXTV, 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 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 that station.⁴

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 handbills 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 The complaint was therefore dismissed in its entirety.⁶

Petitioner here challenges the Board conclusion that the publicity proviso is applicable under the facts of this case. It contends that since that proviso pertains only to publicity concerning a "product" or "products" which are "produced" by a primary employer and which are thereafter "distributed" by another employer, the service rendered by a television station is not included therein.⁷

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 of the proviso is correct, the critical statutory words, none of which are defined in the Act, are "product," "produced," and "distributed."

In its broadest sense, the term "product" denotes anything which is produced. Since economic activity includes the rendition of services, it is appropriate, where the context otherwise permits, to refer to a completed service as a "product."

In this case, however, as all seem to recognize, the context in which the term "product" appears in the proviso precludes the view that the television service rendered by KXTV, considered alone, is a "product" within the meaning of the proviso.⁸ One reason for this conclusion is the fact that in two other places in section 8(b) (4), the term "services" is used in contradistinction to tangible articles.⁹ 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 "product" 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 "another employer." An advertising service rendered by a television 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.

The Board, however, believes that it has overcome this difficulty by holding that it is not the television service of KXTV, 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, enterprise and service * * *" to such items.

It may be noted, however, even before testing the correctness 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.¹⁰

In reaching its conclusion the Board followed its decision rendered on October 31, 1961, in Middle South Broadcasting Co., 133 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 wholesale 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 requisite of one who produces.¹¹ The Board then reasoned that not only the actual manufacturer, but also the wholesaler, 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 distributed by his customers * * *."

In the Board's contemplation then, the "production" of cigarettes includes every phase of...