LOCAL U. NO. 4, INT. B. OF EW v. RADIO THIRTEEN-EIGHTY INC., 70 C 642(3).

• Decision Date: 14 October 1971
• Docket Number: No. 70 C 642(3).,70 C 642(3).
• Citation: 334 F. Supp. 242
• Parties: LOCAL UNION NO. 4, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, Plaintiff, v. RADIO THIRTEEN-EIGHTY INC., a Missouri corporation, Defendant.
• Court: U.S. District Court — Eastern District of Missouri

334 F. Supp. 242

LOCAL UNION NO. 4, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, Plaintiff, v. RADIO THIRTEEN-EIGHTY INC., a Missouri corporation, Defendant.

No. 70 C 642(3).

United States District Court, E. D. Missouri, E. D.

October 14, 1971.

COPYRIGHT MATERIAL OMITTED

Charles A. Werner, Schuchat, Cook & Werner, St. Louis, Mo., for plaintiff.

Vatterott, Shaffar & Dolan, St. Ann, Mo., Donald J. Meyer, Clayton, Mo., for defendant.

MEMORANDUM

WEBSTER, District Judge.

Plaintiff brings this action to compel defendant to arbitrate unresolved disputes as provided in a collective bargaining agreement alleged to exist between the parties. Jurisdiction of the court is based upon section 301 of the Labor Management Relations Act, as amended, 29 U.S.C. § 185.

FACTS

Plaintiff Local 4, IBEW has about 350 members, and they operate and maintain broadcast equipment in various radio and television stations in the Metropolitan St. Louis area. Plaintiff has a collective bargaining Agreement with television stations KSD-TV, KMOX-TV, KTVI, and KPLR, and with radio stations, KSD, KMOX, WEW, KXOK, KWK, KCFM, WOKZ (Alton, Illinois), WGEM and KHQA (Quincy, Illinois). The radio and television stations transmit and broadcast both in Missouri and Illinois, with signal beams crossing state lines. Some of the transmitters are located in Missouri, and others in Illinois.

Plaintiff has represented the engineers and technicians at Radio Station KWK for collective bargaining purposes from approximately 1935 to the present time. (Prior to 1959, plaintiff was known as Local 1217, IBEW.)

Over the years, different corporations such as KWK Radio, Inc., KWK, Inc., and Thomas Patrick, Inc. have operated Radio Station KWK on federally assigned 1380 kilocycles.

The defendant, Radio Thirteen-Eighty, Inc., is a Missouri corporation with its principal office located within the Eastern District of Missouri. The defendant was incorporated on or about May 24, 1965, and the corporation is still in existence. On December 22, 1965, the Federal Communications Commission issued interim operating authority to defendant to operate Radio Station KWK; and said authority has not been revoked by the F.C.C.

Plaintiff and defendant entered into a collective bargaining Agreement for the period from April 16, 1967 to April 15, 1969 (hereafter "Agreement") covering the wages, hours, and other terms and conditions of employment for the engineers and technicians employed by defendant. A letter of Understanding, dated August 19, 1968, concerning an increase in wage rates was executed between plaintiff and defendant.

The Agreement contained the following grievance-arbitration provision in ARTICLE III Arbitration-Controversies-Disputes:

Section 3.01: The Employer and the Union agree to meet and confer with representatives of the other at reasonable times on any and all questions or matters relative to the terms and conditions of this Agreement. There shall be no stoppage of operations either by strike or lockout during the terms of this Agreement because of any dispute over matters relating to provisions herein.

Section 3.02: In the event of a dispute, difference or disagreement between the Employer and the Union concerning the interpretation or application of the terms of this Agreement, representatives of the Employer and the Union shall make an honest and sincere effort to adjust the same in an amicable manner. In the event, however, of the inability of the Employer and the Union to reach an agreement within seven (7) days on the issue or issues in dispute, the question will, at the option of either party, be submitted for arbitration in the following manner: Either party may demand arbitration and shall give five (5) days' advance notice in writing to the other party of its desire to arbitrate. The dispute shall be submitted to a Board of Arbitration consisting of three (3) members. One member shall be selected by the Employer, one by the Union, and the third by the first two. In the event that the first two arbitrators cannot agree upon the selection of the third; then, within five (5) days, the third shall be appointed by the Federal Mediation and Conciliation Service. The third member, regardless of how he is selected, shall be Chairman.

While the matter is pending in arbitration, there shall be neither strike nor lock-out and the decision of a majority of the Board of Arbitration shall be binding on both parties, provided, however, that any decision from the Board of Arbitration shall not add to, detract from, or alter the terms of this Agreement in any way, nor shall the same question be the subject of arbitration more than once.

The fee and expenses, if any, of the Arbitrator selected by the Employer and of the Arbitrator selected by the Union, shall be paid by the party making the selection. The fee and expenses, if any, of the third member of the Board of Arbitration shall be shared equally by the parties and whatever other expenses are involved in the arbitration hearing shall be shared equally by the parties.

Section 3.03: Authorized representatives of the Union shall be allowed access at reasonable hours to the premises of the Employer where members of the Union are employed under this Agreement in order to inspect or investigate operations of the Employer for compliance with the terms and conditions hereof. This provision is not to be construed so as to permit investigation of the Employer's financial or confidential records.

ARTICLE XII of the Agreement contained the following language concerning modification or termination of the Agreement at its expiration date:

"THIS AGREEMENT shall become effective as of the 16th day of April, 1967, and shall remain in full force and effect through the 15th day of April, 1969, and each year thereafter, unless written notice of termination or of desired modification is given at least sixty (60) days prior to any yearly expiration date by either of the parties hereto." (Emphasis supplied.)

Prior to April 15, 1969, neither plaintiff nor defendant gave written notice to the other party with respect to terminating or amending the Agreement.

From April 15, 1969 to August 15, 1969, the defendant paid wages, fringe benefits, vacation pay and holiday pay in a manner that was in no way inconsistent with the terms of the Agreement; and during the same period the defendant complied with the non-economic items in the Agreement, such as manning, seniority, in a manner that was in no way inconsistent with the terms of the Agreement.

On February 26, 1966, the transmitter and studio of Radio Station KWK which was located at 400 Conduit Road in North St. Louis, Missouri, were moved about 1,000 feet to 500 Terminal Row, where they have remained, using the same call letters and wave length. On January 1, 1971, while the transmitter plant was still located at 500 Terminal Row, Radio Station KWK was transmitting from a place in or about Granite City, Illinois.

Engineers William Bivens, Rudolph Isenberg, Roy Knapp, John Mitchell and George Vaughn, started working for defendant on February 26, 1966, and continued working until August 15, 1969.

Prior to August 15, 1969, Byron Bellville, who succeeded Don Hamel as General Manager of Radio Station KWK, was himself succeeded by Dr. Robert Bass, who was the General Manager of Radio Station KWK on August 15, 1969.

On August 15, 1969 at about 4:30 P.M. Clifton Gates, President and Treasurer of defendant, handed Engineer George Vaughn a statement to read over the air. The statement announced that Radio Station KWK was temporarily leaving the air. Radio Station KWK went off the air and did not broadcast from 5:00 P.M. on August 15, 1969 until approximately 5:15 A.M. on August 24, 1969. Defendant informed the engineers that their services were no longer required.

The staff engineers and part-time engineers working at Radio Station KWK on August 15, 1969, including one engineer on vacation, were William Bivens, Rudolph Isenberg, Roy Knapp, John Mitchell, Samuel Reed, George Simpson, George Vaughn, Thomas Vogt, and Paul Wagner. None of these engineers worked at Radio Station KWK after August 15, 1969, and none of the engineers were asked by Radio Station KWK to return to work. All of the engineers were members of plaintiff Local 4, IBEW.

Radio Station KWK resumed broadcasting on August 24, 1969, and has thereafter continued to broadcast on a daily basis. None of the engineers working for Radio Station KWK on August 15, 1969 were recalled to work by defendant; instead, defendant employed other engineers to operate Radio Station KWK.

On August 15, 1969, Vaughn told Merril Davis, Business Manager of plaintiff, that Radio Station KWK was going off the air. Davis spoke to Clifton Gates who confirmed that the Station was going off the air. Davis told Gates that there had been no notice to the engineers or plaintiff. Davis told Gates that it "Looks to me like we've got some serious problems"; to which Gates replied, "Well, we may have". Davis asked Gates when he could sit down and discuss these problems with him, and Gates replied, "Call me". Gates did not testify at the trial.

Davis testified that he tried to reach Gates by telephone on numerous occasions over the weekend of August 15th-17th, 1969, but while he was able to contact his office, he was never able to talk to Gates. Davis also tried to contact Glennon Vatterott, Vice-President and Secretary of defendant, and Dr. Robert Bass, General Manager of defendant, but was not able to reach either man.

On August 18, 1969, Davis sent a letter to Dr. Bass at Radio Station KWK asking to discuss the layoff of the engineers. Davis did not receive a reply to his letter. On August 25, 1969, Davis sent a second letter to Dr. Bass at Radio Station KWK demanding reinstatement of the engineers. No reply was received. On September 2, 1969, Davis sent a third letter to Dr. Bass demanding arbitration. Plaintiff's demand for...