American Federation of Television and Radio Artists, Cleveland Local, AFL-CIO (AFTRA) v. Storer Broadcasting Co., AFL-CIO
| Decision Date | 29 November 1984 |
| Docket Number | AFL-CIO,No. 83-3266,83-3266 |
| Citation | 745 F.2d 392 |
| Parties | 117 L.R.R.M. (BNA) 2553, 118 L.R.R.M. (BNA) 2141, 101 Lab.Cas. P 11,212, 102 Lab.Cas. P 11,264 AMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS, CLEVELAND LOCAL,(AFTRA), Plaintiff-Appellant, v. STORER BROADCASTING COMPANY, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Thurlow Smoot (argued), Cleveland, Ohio, for plaintiff-appellant.
F. Wilson Chockley (argued), Walter, Haverfield, Buescher & Chockley, Michael T. McMenamin, Victor J. Leo, Cleveland, Ohio, for defendant-appellee.
Before KENNEDY and WELLFORD, Circuit Judges, and COHN, District Judge. *
This is an appeal from a judgment vacating a labor arbitration award under Section 301 of the Labor Management Relations Act of 1947 (LMRA), 29 U.S.C. Sec. 185. The judgment effectively reversed an arbitrator's determination that the position of assignment editor at Storer Broadcasting Company's (Storer) television station in Cleveland, Ohio, WJKW-TV, was not supervisory as that term is defined in Section 2(11) of the National Labor Relations Act (NLRA), 29 U.S.C. Sec. 152(11), on the basis that the arbitrator exceeded his authority. Appellant, American Federation of Television and Radio Artists, Cleveland Local, AFL-CIO (AFTRA), sought enforcement of the award against appellee, Storer, in the district court. Storer counterclaimed for an order vacating the award. We find that the arbitrator's decision involved the interpretation of a substantive provision of a collective bargaining agreement. This kind of decision is within the peculiar province of an arbitrator and is to be enforced as long as the decision "draws its essence" from the agreement of the parties. United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960); W.R. Grace & Co. v. Local 759, 461 U.S. 757, 103 S.Ct. 2177, 2182, 76 L.Ed.2d 298, 51 U.S.L.W. 4643, 4645 (May 31, 1983). United Steelworkers of America v. Timken, 717 F.2d 1008, 1009 (6th Cir.1983). The district judge concluded that the arbitrator exceeded his authority and rejected the arbitrator's resolution of the issues committed to him by agreement of the parties. We reverse.
The grievance arbitrated took the form of a letter, dated September 7, 1980, from Kenneth Bichl (Bichl), executive secretary of the Cleveland Local of AFTRA, to Virgil Dominic (Dominic), news director at WJKW. The letter, citing Article 10, section (d) of the collective bargaining agreement (see p. 5, infra ), requested that Storer discharge Richard C. Patrick (Patrick), WJKW producer/assignment editor, for failing to belong to AFTRA while performing bargaining unit duties as an assignment editor. AFTRA maintained that the assignment editor position was a bargaining unit position until 1980 when Storer attempted to use non-union personnel on a permanent basis. Storer maintained that it could assign either non-union or union personnel to act as assignment editor. On March 31, 1981, the arbitrator sustained the grievance, holding that "Patrick was assigned to a position which, when utilized, must be staffed with a union member" and ruled that Patrick should be offered an opportunity to join AFTRA but, if he failed to do so, he was to be discharged. On AFTRA's complaint for enforcement of the award, the district court remanded the matter to the arbitrator for a determination of whether assignment editors at WJKW-TV are supervisors within the definition of Section 2(11) of the NLRA since supervisors, as defined in the NLRA by the terms of the agreement, were excluded from recognition. Specifically the district court said,
It is obvious that if assignment editors are supervisors within the meaning of section 2(11), the arbitrator exceeded his authority in holding that this position is reserved for union members. Because the arbitrator's award fails to indicate that he addressed this issue, and, moreover because the record, as presently constituted, is not sufficiently developed to enable this Court to resolve the status of assignment editors vis-a-vis the section 2(11) definition of supervisors, the Court cannot effectively determine whether the arbitrator has exceeded the boundaries of his authority as established by the agreement. Therefore, the proper procedure at this juncture is to remand the instant action to the arbitrator for a determination of whether assignment editors, as employed by Storer at WJKW-TV, are supervisors within the definition of section 2(11).
Thereafter the arbitrator determined that assignment editors were not supervisors. In finding that determination to be faulty the district court said,
Because the assignment editor position is supervisory as that term is defined in Section 2(11), the post is excluded by the Agreement ... insofar as the arbitrator's contrary determination rested upon an erroneous application of the law ... to the arbitrator's factual finding ... as well as upon an improper sojourn into matters beyond the plain language of the contract, there is manifest a clear failure to draw the essence of the award from the agreement. 1
The relevant portions of the collective bargaining agreement read as follows:
(Article) 1. RECOGNITION.
The Company recognizes FTRA as the exclusive collective bargaining agent for all Staff Announcers, Staff Special Announcers, Staff News Editors and Free Lance Performers now or hereafter employed or engaged by the Company at Station WJKW-TV, Cleveland, Ohio all being hereinafter referred to (except in cases where distinction between classification is pertinent) as Staff Artists or as Free Lance Artists, and excludes from recognition continuity writers, technicians, engineers, instrumental musicians, office and clerical employees, watchmen, guards and supervisors as defined in the National Labor Relations Act as amended. (emphasis added)
(Article) 2. CLASSIFICATION AND DUTIES OF ARTISTS.
a) Artists shall be classified and assigned duties as follows;
A Staff News Editor is defined as an employee whose duties include gathering, editing and writing of news and other informational and public interest material for station's programs.
(Article) 3. UNION SHOP.
It is a condition of employment that all Artists covered by this Agreement who are members of AFTRA in good standing on the execution date of this Agreement shall remain members in good standing, and those who are not members on the execution date of this Agreement, shall ... become and remain members in good standing of AFTRA.
(Article) 10. ARBITRATION.
a) Upon notice of Arbitration as set forth in Section 9, the dispute shall be settled by arbitration in accordance with the rules the obtaining of the American Arbitration Association, each party bearing one-half of the expense and judgment upon the award rendered may be entered in the highest court of the forum, state, or federal, having jurisdiction. Subject to the Company's performance of the foregoing, AFTRA agrees that there will be no stoppage of work during arbitration or prior to the rendition of the award and the parties agree that all awards rendered will be binding upon them.
b) All arbitrations shall be conducted within the City of Cleveland, Ohio.
c) The Arbitrator shall not add to, subtract from, or vary the terms of this Agreement.
d) Should the company refuse AFTRA's request to discharge an employee for non-payment of initiation fee or dues, the following expedited procedure shall be followed in lieu of the procedure set forth above:
1) The Artist involved shall immediately be removed from duty.
2) Representatives of the Company and of AFTRA shall meet within forty-eight (48) hours. At that meeting, an agreement shall be reached on a person to act as arbitrator in the matter, or if there is no agreement as to an Arbitrator, the parties, both Company and Union, must jointly request the American Arbitration Association to set in motion its expedited arbitration procedure. The only issue to be decided by the arbitrator shall be whether the employee or employees involved are to be discharged for failure to pay initiation fees or dues.
SCHEDULE "A"--COMPENSATION OF TELEVISION ARTIST.
b) Assignment Editor. The Company may, at its option, assign a News Editor as an Assignment Editor. If so assigned, compensation shall be 10% above the applicable base hourly rate for hours worked as Assignment Editor. The specific duties of the Assignment Editor shall be determined by the Company.
The term Supervisors is defined in the NLRA as follows:
(11) The term "supervisor" means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibility to direct the, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.
At the hearing before the arbitrator on remand Patrick, Dominic and union member and reporter Neil Flanagan (Flanagan) testified. The parties stipulated that Pete Cary (Cary), a news reporter who worked as assignment editor, would have given the same testimony as Flanagan. The arbitrator summarized the testimony as follows:
Patrick ... works as Assignment Editor from 7 a.m. to 1:30 p.m. on Wednesday, Thursday and Friday and as weekend Producer on Saturday and Sunday .... Flanagan is regularly scheduled to work as Assignment Editor from 1:30 to 11:30 Wednesday, Thursday, and Friday and from 9:30 a.m. to 6:30 p.m. on Saturday and Sunday. Other reporters and, less often, non-union personnel, fill in.
* * *
Flanagan stated that although he assigns work to reporters and camerapersons when an unexpected...
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