Local 771, I.A.T.S.E., AFL-CIO v. RKO General, Inc. Wor Div.
| Decision Date | 03 March 1977 |
| Docket Number | D,AFL-CI,No. 617,P,617 |
| Citation | 546 F.2d 1107 |
| Parties | 94 L.R.R.M. (BNA) 2928, 81 Lab.Cas. P 13,096 LOCAL 771, I.A.T.S.E.,laintiff-Appellee-Cross-Appellant, v. RKO GENERAL, INC., WOR DIVISION, Defendant-Appellant-Cross-Appellee. ocket 76-7430. |
| Court | U.S. Court of Appeals — Second Circuit |
Howard N. Meyer, New York City, for plaintiff-appellee-cross-appellant.
L. Robert Batterman, New York City (Franklin S. Bonem, Jonathan L. Sulds, Proskauer Rose Goetz & Mendelsohn, New York City, of counsel), for defendant-appellant-cross-appellee.
Before MANSFIELD, GURFEIN and MESKILL, Circuit Judges.
Both sides appeal from a decision 1 by Judge Milton Pollack of the Southern District of New York confirming an arbitrator's ruling that a demand for arbitration by Local 771, I.A.T.S.E., AFL-CIO ("Local 7771") is time-barred under the arbitration clause of the Union's collective bargaining agreement ("the Agreement") with RKO General, Inc., WOR Division ("the Company"), and holding that Local 771's work-assignment suit against the Company could continue over the Company's claim that arbitration is the Union's exclusive remedy under the Agreement. We affirm the district court's confirmation of the arbitrator's award, and reverse its finding on the issue of the exclusivity of arbitration. Accordingly, we order that the action be dismissed.
The controversy giving rise to this case was triggered when the Company announced its decision, on February 21, 1975, to use portable television cameras known as minicams in place of film cameras to cover local events for its daily news broadcasts and to assign the operation of the minicams to its studio engineers 2 ("the engineers"), with the result that it proposed to terminate, effective February 25, 1975, two film editors represented by Local 771 as well as several film cameramen, soundmen, and lighting technicians represented by other locals. Prior to 1970, when the Company first decided to broadcast a daily news report, its programming consisted entirely of studio productions and transmission of predetermined events from remote locations. These productions were videotaped or broadcast live through the use of large, pedestal television cameras and were electronically edited. The engineers performed both the camera work and the electronic editing.
In 1970 the Company purchased 16 mm. film cameras and sound and lighting equipment to cover local, fast-breaking news events for its nascent daily news program. Members of Local 771 were hired to edit the film for broadcast after it was returned to the station and developed. 3
The development of the minicam units fundamentally changed the coverage of local news. The minicams are portable, hand-held television cameras with a 22-pound powerpack. The minicam has a built-in microphone which automatically adjusts to sound levels, it rarely needs the assistance of outside lighting due to its great light sensitivity, and it produces videotape which needs no developing and can be electronically edited for broadcast, erased, and reused. The Company's decision to introduce this streamlined news production process led to the termination of Local 771's film editors as well as the cameramen, soundmen and light technicians. On the basis of their experience with video-tape cameras and electronic editing, the Company assigned the newsgathering and electronic editing functions to members of the engineers.
Litigation immediately ensued. On February 21, 1975, Local 771 (film editors) and Local 644, which represents film cameraman, filed the instant suit in the district court. Local 771 sought an order compelling multilateral arbitration of the dispute, equitable relief against the Company, back pay and damages. On February 26, 1975, Local 771 amended its complaint by deleting its request for multilateral arbitration and seeking bilateral arbitration with the Company. 4
On February 25, 1975, members of Local 771 and the other affected unions began picketing the Company, which immediately filed an unfair labor practice charge alleging violations of Sec. 8(b)(4) of the National Labor Relations Act, 29 U.S.C. Sec. 158(b)(4). 5 On April 10, 1975, at the request of the * * * * * *
National Labor Relations Board ("NLRB"), Judge Charles Brieant of the Southern District of New York granted a preliminary injunction against the picketing. The NLRB held four days of hearings to determine the underlying jurisdictional dispute pursuant to Sec. 10(k) of the Act, 29 U.S.C. Sec. 160(k).
* * * * * *
On August 18 the NLRB decided the dispute in favor of assignment of the news-gathering and electronic editing functions to the engineers. Although it found that Local 771 had sought all of the editing functions from the outset, the Board distinguished between mechanical (electronic) and "judgmental" editing, the latter being characterized as "determining which material is to be retained for the program and which is to be edited out ...", and disclaimed jurisdiction over the latter on the grounds that the dispute over which it had jurisdiction involved only the work assigned by the Company to the engineers, which in turn embraced only the mechanical aspects of editing. In October 1975 the NLRB issued a formal unfair labor practice complaint against the Unions, which acquiesced in the decision, and the NLRB subsequently relinquished jurisdiction.
On January 12, 1976, Local 771 filed a formal demand for bilateral arbitration of the judgmental editing issue in accordance with rules of the American Arbitration Association. An arbitrator, Eric J. Schmertz, was appointed and held a hearing on March 31, 1976. On April 9, 1976, he rendered his "Opinion and Award," finding he dispute non-arbitrable for the reason that the formal demand was time-barred under Article 15.02 of the Agreement which provides that, "Arbitration must be resolved ninety (90) days after the occurrence of the event. ..." The arbitrator found that the "event" in question was the February 25, 1975, termination of Local 771's employees, and that Local 771's filing of the federal court action could not be deemed a demand for arbitration under Article 16.01 of the Agreement, which incorporates by reference the rules of the American Arbitration Association ("AAA"). 6
On June 4, 1976, Local 771 moved in district court for an order setting aside the arbitration award and compelling arbitration. The Company moved for confirmation of the award and for an order dismissing the action. Local 771 argued that the dispute was multilateral, that the 90-day time bar was therefore inapplicable, that the action before the NLRB tolled the arbitration period, that the Company's refusal to arbitrate estopped it from asserting the time bar, and that the Board's decision declining jurisdiction over the issue of judgmental editing amounted to a new "event" which arose only after the NLRB decision distinguished between mechanical and judgmental editing. Judge Pollack confirmed the arbitrator's interpretation of the time-bar provision as incorporating the AAA demand procedures, with which Local 771 had admittedly failed to comply. In addition, the district court found that the NLRB proceedings had not barred concurrent arbitration, that the Company's reluctance to submit to court-ordered arbitration did not preclude its pleading the time-bar, and that the arbitrator had not unreasonably interpreted the dispute over judgmental editing to be "merely a refinement" of the original "event" and therefore time-barred. 419 F.Supp. at 558-59.
The district court, however, denied the Company's motion to dismiss on the ground that arbitration was the exclusive remedy under the contract. Judge Pollack interpreted the arbitration provision as merely an optional remedy, relying on Article 15.02 of the Agreement, which provides that "if no mutually satisfactory adjustment is The Company appealed from so much of the district court's decision as refused to dismiss the action. The Union cross-appealed from the court's order confirming the arbitrator's award and refusing to order arbitration to proceed on the merits. The Union also moved to dismiss the Company's appeal on the ground that the order was interlocutory.
reached [through the grievance procedure] then either party shall have the right to refer the matter to arbitration ...," and Article 16.01, which provides that "The parties may submit to arbitration in accordance with the rules of the American Arbitration Association. ..." Said Judge Pollack, "Neither provision grants anything but an option to proceed to arbitration and neither can be termed 'mandatory' or 'exclusive' ...." 419 F.Supp. at 560
The threshold question is whether we have jurisdiction over the Company's appeal from the district court's order which, being interlocutory, does not ordinarily qualify for appeal as a "final" order under 28 U.S.C. Sec. 1291. Its appealability therefore turns on whether it satisfies the conditions laid down by the Supreme Court in Cohen v. Beneficial Ind. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), for appeal in certain exceptional cases from interlocutory orders determining collateral or separable rights that are "too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated," 337 U.S. at 546, 69 S.Ct. at 1226. We are satisfied that this order meets the Cohen criteria.
The interpretation of the arbitration provisions of the collective bargaining agreement presents an issue that is separable from and collateral to the main issue in the case, which is whether the employees who are members of Local 771 are entitled to be assigned to newsgathering and editing functions in the operation of minicam units. Under analogous circumstances we have held that an issue regarding the right to...
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