ABC, INC. v. AM. FED. OF TEL. & RADIO ARTISTS, No. 76 CIV. 483 (MP).

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Writing for the CourtPOLLACK
Citation412 F. Supp. 1077
Decision Date30 April 1976
Docket NumberNo. 76 CIV. 483 (MP).
PartiesAMERICAN BROADCASTING COMPANIES, INC., Plaintiff, v. AMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS et al., Defendants.

412 F. Supp. 1077

AMERICAN BROADCASTING COMPANIES, INC., Plaintiff,
v.
AMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS et al., Defendants.

No. 76 CIV. 483 (MP).

United States District Court, S. D. New York.

April 30, 1976.


412 F. Supp. 1078

Graubard, Moskovitz, McGoldrick, Dannett & Horowitz, New York City, by Emanuel Dannett, Robert M. Schanzer, and Michael W. Sculnick, New York City, for plaintiff.

Murtha, Cafferky, Powers & Jordan, Washington, D. C., by Daniel B. Jordan, and

412 F. Supp. 1079
Thomas P. Powers, Washington, D. C., for defendants

OPINION AND FINDINGS

POLLACK, District Judge.

Plaintiff, American Broadcasting Companies, Inc. (ABC hereafter) sues to enjoin AFTRA Washington-Baltimore Local (the Local hereafter) and the American Arbitration Association (AAA hereafter) from proceeding with an attempted arbitration sought by the Local of a dispute concerning the termination of the employment of Charles R. Hughes, a Washington staff announcer of ABC and a member of the Local.1 The Local counterclaims for a decree compelling the arbitration sought.

Jurisdiction is based on Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, and 28 U.S.C. §§ 1331, 1337, 2201, et seq. The counterclaim seeks an order compelling arbitration pursuant to the Federal Arbitration Act, 9 U.S.C. § 4.

Pursuant to Rule 65(a)(2), Fed.R.Civ.P., and with the consent of the parties, the Court ordered that the trial of the action on the merits be advanced and consolidated with the hearing of the plaintiff's application for preliminary relief.

For the reason that the parties made no agreement, oral or in writing, to arbitrate any dispute pertaining to the employment of Mr. Hughes, the injunction sought by plaintiff must be granted and the Local's counterclaim dismissed. The facts follow.

The plaintiff, ABC, is a New York corporation engaged in the radio and television broadcasting business throughout the United States.

The former defendant, American Federation and Radio Artists (the International), is an international labor union representing employees in the broadcasting industry. It has been a party to a number of collective bargaining agreements with ABC covering staff announcers performing services in the City of New York. The current agreement between ABC and the International is dated September 22, 1974 (the 1973-76 New York Staff Announcers' Agreement).

The Local is an affiliate of the International having its principal place of business in Washington, D. C. It is an unincorporated association representing employees in an industry affecting commerce within the meaning of the Labor Management Relations Act of 1947 as amended, 29 U.S.C. § 185.

Charles R. Hughes was employed by ABC as a Washington staff announcer from February 4, 1963 until February 7, 1975 when he was laid off. He was not and has never been employed by ABC as a New York staff announcer. There is no collective bargaining agreement between ABC and the Washington Local and it is not a party to the collective bargaining agreement between the International and ABC relating to New York staff announcers. The terms of employment of Hughes were agreed to from time to time between the vice-president of ABC and Evelyn Freyman, business agent for the Washington Local. Under those terms, subsequent to May 9, 1968 Hughes was to receive the base salary, salary guaranty, vacation, holiday, sick leave, severance and pension benefits set forth in each New York staff announcers' agreement.

Although the 1973-1976 New York Staff Announcers' Agreement provides for arbitration

(b) On the request of either AFTRA the International or the Company, of any controversy or dispute between a staff announcer who is a member of AFTRA and the Company arising out of or connected with his contract or the employment by the Company of a member pursuant hereto, . . .

the parties at no time agreed orally or in writing that the arbitration provision would

412 F. Supp. 1080
become part of the Hughes employment agreement

The 1973-1976 New York Staff Announcers' Agreement contains the following limitations:

1. This agreement applies, and is limited in its application, to staff announcers employed by the New York office of the Company as of the date of this agreement, . . ..
The Company agrees that the limitation of the scope of this agreement to announcers in New York City is without prejudice to any claim by AFTRA hereafter asserted against the Company or others to the effect that the bargaining unit be wider in scope or larger in extent, but no such claim shall affect the validity of this agreement.2

Subsequent to the termination of Hughes' employment, he wrote to the National Executive Secretary of the International under date of January 28, 1975 claiming that "I was guaranteed my job 'til age 65 on the same basis as my New York brethren. She Freyman said the side letter between AFTRA and ABC covers me on that."

The side letter to which Hughes had reference is in fact two letters, one supplementing the New York Staff Announcers' Agreement of 1971-1973 and the other the 1973-1976 New York Staff Announcers' Agreement. Those letters contain the "attrition" clause under which ABC agreed that it would continue

to employ each such regular staff announcer who was on the staff on November 15, 1969 until each such announcer may die, resign, be permanently incapacitated, transfer voluntarily out of the staff announcer bargaining unit, retire or be retired, or be discharged for just cause.

Attached to each of those letters was a list of the announcers — all New York staff announcers — to whom it applied. Hughes' name was not included in either of those lists.

On November 3, 1975 the Local (not the International — the party to the arbitration agreement)3 demanded "arbitration of the termination by ABC of Charles R. Hughes as being a breach of the collective bargaining agreement existing between the parties" viz., the 1973-1976 New York Staff Announcers' Agreement. AAA informed ABC that it would proceed with arbitration unless enjoined by Court.

ABC promptly sued for an injunction of the demanded arbitration.

The history of the employment agreements relating to Hughes is instructive. In June 1964, Richard Freund, a vice president of ABC, held conversations with Mrs. Freyman who was then business agent for the Washington Local, concerning the terms and conditions of Hughes' employment. An agreement was reached retroactive to November 16, 1963 to the effect that Hughes was to receive the same base salary and earnings guarantee applicable to staff announcers employed by ABC in New York. Thereafter and some time prior to May 8, 1968 Freund and Mrs. Freyman had a further conversation concerning the terms of Hughes' employment in which it was agreed that Hughes would receive the base salary, salary guarantee, vacations, holidays, sick leave and severance provisions contained in the 1966-69 New York AFTRA agreement between AFTRA and ABC covering New York Staff Announcers and would be covered by AFTRA's Pension Plan. It was clearly understood that except for the items listed, Hughes was not covered by any of the other terms of that New York agreement. This was the oral understanding, confirmed by letter dated

412 F. Supp. 1081
May 9, 1968. The letter gives no indication that an agreement to arbitrate disputes concerning Hughes had been adverted to, discussed or arrived at. On or about November 13, 1970, another confirmation from Freund of the understandings concerning the terms and conditions of the employment of Hughes referred to the basic salary and earnings guarantee applicable to New York staff announcers. In that confirmation no mention was made that any other terms of the New York agreement would inure to Hughes' benefit

Freund states "at no time did I agree that the arbitration provisions of the 1969-72 New York AFTRA Agreement would be applicable to Hughes, nor did I agree to limit ABC's right to lay off Hughes." He further states that Freyman at no time requested that the arbitration provisions of any New York AFTRA Agreement be made applicable to Hughes and that he never was asked to agree nor was it ever agreed that the "attrition principle" which covered New York staff announcers would also apply to Hughes. Mrs. Freyman does not dispute Freund's statement.

Upon expiration of the 1969-72 New York AFTRA Agreement a new collective bargaining agreement covering New York staff announcers was made...

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15 practice notes
  • General Warehousemen and Helpers Local 767 v. Standard Brands, Inc., Nos. 75-3797
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 15, 1978
    ...AFL-CIO v. General Electric Co., supra; American Broadcasting Companies, Inc. v. American Federation of Television and Radio Artists, 412 F.Supp. 1077 (S.D.N.Y.1976); Makress Lingerie, Inc. v. Int'l Ladies Garment Workers' Union, 395 F.Supp. 110 (S.D.N.Y.1975); Chattanooga Mailers v. Chatta......
  • Lukens Steel Co. v. United Steelworkers of America (AFL-CIO), AFL-CIO
    • United States
    • U.S. Court of Appeals — Third Circuit
    • March 25, 1993
    ...for court's decision that NLA does not apply to order staying arbitration); ABC, Inc. v. American Fed'n of Television and Radio Artists, 412 F.Supp. 1077, 1082 (S.D.N.Y.1976) (finding NLA was not intended to curtail "use of injunctions against the improper invocation of the arbitration......
  • Mobil Oil Corp. v. Local 8-766, Oil, Chemical & Atomic Workers Intern. Union, No. 78-1535
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • June 22, 1979
    ...and the assignment of work." Id. at 1180. The arbitration clause in ABC, Inc. v. American Fed'n of Television and Radio Artists, 412 F.Supp. 1077 (S.D.N.Y.1976), provided, "(t)his agreement applies, and is limited in its application, to staff announcers employed by the New York of......
  • Kenly v. Miracle Properties, No. Civ. 76-127
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
    • May 7, 1976
    ...is vested in the Clerk of the Superior Court under the Arizona Deeds of Trust statute. We are of the opinion that the Clerk of the 412 F. Supp. 1077 Superior Court performs only ministerial functions under the Arizona statute and that such functions have no relationship to the alleged const......
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15 cases
  • General Warehousemen and Helpers Local 767 v. Standard Brands, Inc., Nos. 75-3797
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 15, 1978
    ...AFL-CIO v. General Electric Co., supra; American Broadcasting Companies, Inc. v. American Federation of Television and Radio Artists, 412 F.Supp. 1077 (S.D.N.Y.1976); Makress Lingerie, Inc. v. Int'l Ladies Garment Workers' Union, 395 F.Supp. 110 (S.D.N.Y.1975); Chattanooga Mailers v. Chatta......
  • Lukens Steel Co. v. United Steelworkers of America (AFL-CIO), AFL-CIO
    • United States
    • U.S. Court of Appeals — Third Circuit
    • March 25, 1993
    ...for court's decision that NLA does not apply to order staying arbitration); ABC, Inc. v. American Fed'n of Television and Radio Artists, 412 F.Supp. 1077, 1082 (S.D.N.Y.1976) (finding NLA was not intended to curtail "use of injunctions against the improper invocation of the arbitration......
  • Mobil Oil Corp. v. Local 8-766, Oil, Chemical & Atomic Workers Intern. Union, No. 78-1535
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • June 22, 1979
    ...and the assignment of work." Id. at 1180. The arbitration clause in ABC, Inc. v. American Fed'n of Television and Radio Artists, 412 F.Supp. 1077 (S.D.N.Y.1976), provided, "(t)his agreement applies, and is limited in its application, to staff announcers employed by the New York of......
  • Kenly v. Miracle Properties, No. Civ. 76-127
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
    • May 7, 1976
    ...is vested in the Clerk of the Superior Court under the Arizona Deeds of Trust statute. We are of the opinion that the Clerk of the 412 F. Supp. 1077 Superior Court performs only ministerial functions under the Arizona statute and that such functions have no relationship to the alleged const......
  • Request a trial to view additional results

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