870 F.2d 858 (2nd Cir. 1989), 170, WPIX, Inc. v. N.L.R.B.

Docket Nº:170, Docket 88-4060.
Citation:870 F.2d 858
Party Name:WPIX, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Radio and Television Broadcast Engineers Union, Local 1212, I.B.E.W., AFL-CIO, Intervenor.
Case Date:March 21, 1989
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 858

870 F.2d 858 (2nd Cir. 1989)

WPIX, INC., Petitioner,




Radio and Television Broadcast Engineers Union, Local 1212,

I.B.E.W., AFL-CIO, Intervenor.

No. 170, Docket 88-4060.

United States Court of Appeals, Second Circuit

March 21, 1989

Argued Oct. 11, 1988.

Page 859

Susan M. Benton-Powers, Chicago, Ill. (Richard L. Marcus, Sonnenschein Carlin Nath and Rosenthal, Chicago, Ill., of counsel), for petitioner-appellant.

David A. Fleischer, Atty., N.L.R.B., Washington, D.C. (Rosemary M. Collyer, General Counsel, John E. Higgins, Jr., Deputy General Counsel, Robert E. Allen, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, Peter Winkler, Supervisory Atty., N.L.R.B., Washington, D.C., of counsel), for respondent.

William T. Josem, Philadelphia, Pa. (Richard H. Markowitz, Markowitz & Richman, Philadelphia, Pa., of counsel), for intervenor.

Before KEARSE, PRATT and MAHONEY, Circuit Judges.

MAHONEY, Circuit Judge:

Petitioner WPIX, Inc. ("WPIX") petitions for review of a decision and order of the National Labor Relations Board (the "Board") which dismissed the Board's complaint on behalf of WPIX against Local 1212 of the Radio and Television Broadcast Engineers Union, I.B.E.W., AFL-CIO (the "Union"). The complaint charged the Union with violating section 8(b)(1)(A) and (2) 1 of the National Labor Relations Act ("NLRA"), 29 U.S.C. Sec. 158(b)(1)(A) and (2) (1982), by (1) maintaining a provision of the collective bargaining agreement between WPIX and the Union that provides Union officials a longer leave of absence than is afforded to other employees, and prohibits only employees not on Union business from seeking or accepting other employment while on leave of absence; (2) demanding reinstatement of a Union official pursuant to that provision; and (3) filing for arbitration when WPIX rejected that demand. We have jurisdiction pursuant to NLRA Sec. 10(f), 29 U.S.C. Sec. 160(f) (1982).

Concluding that the standard by which the Board evaluated the contractual provision was reasonable, as were the Board's application of the standard to the facts of this case and its allegedly retroactive enforcement of its decision, we deny the petition for review.


WPIX and the Union have been parties to successive collective bargaining agreements since at least 1949. Since 1971, each of these agreements, including the ones in force during all times pertinent here (collectively the "Agreement"), has included the following provisions:

Section 3.09: (a) At the written request of the Union, for the conduct of Union business in connection with the broadcasting industry only, any employee shall be granted a leave of absence without pay for a period not to exceed two (2) years. Such employee's seniority shall continue to accrue throughout such a leave for layoff purposes only.

Page 860

(b) Leave of absence may be granted by [WPIX] for a period not to exceed six (6) months upon written application by any employee, stating reasons therefor and, if the leave is for a month or more, the approval of the Union, provided that no employee shall apply for a leave of absence primarily to enable him to solicit or accept employment elsewhere. Such employee shall continue to accrue seniority throughout such leave of absence for layoff purposes only.


(d) Upon the return of an employee from a leave of absence, he/she shall be reemployed in the same position or a position generally similar to that in which he/she was previously employed and with the same experience or length of service rights held immediately preceding such leave.

Emphasis added.

The provisions that prompted the charge by WPIX which gives rise to this litigation are: (1) those allowing a leave of absence for the conduct of Union business for up to two years, but limiting other leaves of absence to six months; and (2) the prohibition of leaves "primarily ... to solicit or accept employment elsewhere" only in the case of the non-Union business, six-month leaves.

In 1968, Joseph Tomaselli ("Tomaselli") was hired by WPIX as a film splicer. In 1978, he was transferred to WPIX's engineering department and became a member of the Union. By letter dated August 19, 1982, the Union informed WPIX that Tomaselli had been appointed a business representative of the Union and would be taking a leave of absence from WPIX effective August 25, 1982, pursuant to section 3.09(a) of the Agreement. Tomaselli discussed the leave with Robert Murch ("Murch"), WPIX's chief engineer, who approved the leave. There was no discussion of the question whether a position would be available for Tomaselli when he wanted to return to WPIX. Tomaselli was the only WPIX employee ever granted a leave of absence to work full time for the Union. During Tomaselli's absence, WPIX continued his medical insurance and group life insurance coverage, with the Union reimbursing WPIX for the premiums paid by WPIX on behalf of Tomaselli. 2

As a business representative, Tomaselli negotiated collective bargaining agreements on behalf of the Union with twenty-five television and radio stations. He also processed grievances and participated in arbitration proceedings.

By letter dated May 25, 1984, the Union notified WPIX that Tomaselli's leave of absence would be extended an additional two years. WPIX later denied receiving this letter. In an arbitration described infra, however, the arbitrator concluded that the Union had notified WPIX concerning Tomaselli's extension and WPIX had acquiesced therein, based upon (1) a presumption that the Union's letter had been mailed and delivered, (2) the fact that WPIX continued to deal with Tomaselli as the Union's business representative during the extension period, and (3) the continued recognition of Tomaselli's leave status by continued payment of insurance premiums (subsequently, as theretofore, reimbursed by the Union). The administrative law judge "assumed without deciding" that an extension was effected, and the Board so found. In its reply brief on appeal, WPIX states that "[t]he propriety of the Arbitrator's award extending Tomaselli's leave of absence from two to three years is now before the United States District Court for the Southern District of New York ... and is not at issue in this proceeding."

By letter dated July 3, 1985, Tomaselli informed WPIX that he no longer served the Union as business representative, and requested reinstatement to his former position

Page 861

at WPIX. By letter dated July 11, 1985, Murch responded that no vacancies existed at WPIX and that Tomaselli would be refused employment. By letter dated July 23, 1985, the Union demanded that WPIX reinstate Tomaselli, citing section 3.09 of the Agreement and advising that the letter constituted "the Union's grievance protesting the failure of WPIX, Inc. to restore Mr. Tomaselli to employment," which grievance would be pursued "through the steps provided for in the collective bargaining agreement" unless "satisfactorily resolved." By letter dated July 29, 1985, WPIX refused the Union's demand to reemploy Tomaselli, contending that WPIX had never received, much less approved, the May 25, 1984 letter extending Tomaselli's leave of absence, which accordingly expired after two years. The WPIX letter also stated:

You are no doubt aware that the law prohibits employers from according benefits to officers or employees of labor organizations which represent their employees. While Section 3.09 of our agreement may conceivably represent a legitimate exception to these legal prohibitions, the extension of benefits (i.e., reinstatement rights) which you and Mr. Tomaselli are now seeking is, in our opinion, wholly unwarranted under the law (and as noted above, under our collective bargaining agreement).

On August 2, 1985, WPIX filed a charge with the Board alleging that the Union's demand that Tomaselli be reinstated violated sections 8(b)(1)(A) and (2) of the NLRA because, in making that demand,

the Union is attempting to cause the Employer to violate Section 8(a)(3) of the Act in that it is attempting to cause the Employer to encourage membership in and loyalty to the Union by...

To continue reading