Retlaw Broadcasting Co. v. N.L.R.B., KJEO-T

• Decision Date: 17 November 1994
• Docket Number: 93-70437,Nos. 93-70378,C,KJEO-T,s. 93-70378
• Citation: 53 F.3d 1002
• Parties: 149 L.R.R.M. (BNA) 2134, 130 Lab.Cas. P 11,324, 23 Media L. Rep. 1886 RETLAW BROADCASTING CO., a subsidiary of Retlaw Enterprises, Inc., d/b/ahannel 47, Petitioner-Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1002

53 F.3d 1002

149 L.R.R.M. (BNA) 2134, 130 Lab.Cas. P 11,324,

23 Media L. Rep. 1886

RETLAW BROADCASTING CO., a subsidiary of Retlaw Enterprises Inc., d/b/a KJEO-TV, Channel 47, Petitioner-Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner.

Nos. 93-70378, 93-70437.

United States Court of Appeals Ninth Circuit.

Submitted Nov. 17, 1994 ^*.

Decided April 26, 1995.

Thomas E. Campagne, Fresno, CA, for petitioner-cross-respondent.

Lisa Richardson Shearin, N.L.R.B., Washington, DC, for respondent-cross-petitioner.

Petition for Review and Cross-Petition for Enforcement of an Order of the National Labor Relations Board.

Before: FARRIS, BOOCHEVER, and BRUNETTI, Circuit Judges.

BOOCHEVER, Circuit Judge:

In 1991, Retlaw Broadcasting Company ("Retlaw") fired Gene Haagenson, a weekend on-air anchor at Retlaw's KJEO-TV in Fresno, California, for "unsuitability as an on-air artist," following Haagenson's allegedly deficient coverage of the Oakland fire. Haagenson's union, the American Federation of Television and Radio Artists ("AFTRA"), filed a complaint with the National Labor Relations Board ("NLRB"). Over Retlaw's contention that the dispute was subject to arbitration, the NLRB affirmed the administrative law judge's decision that Retlaw violated the National Labor Relations Act by offering Haagenson reinstatement only if he waived his right under the collective bargaining agreement to grievance procedures and union representation regarding any further termination. Retlaw petitions for review of the NLRB's decision, and the NLRB cross-petitions for enforcement of its order. We deny the petition for review and grant the petition for enforcement.

FACTS AND PROCEDURES

Retlaw does business as KJEO-TV, a CBS-affiliated television station in Fresno, California. Haagenson worked for Retlaw as a weekend local news anchor on Saturdays and Sundays, and as a general assignment reporter on Mondays and Tuesdays. Haagenson was covered by a collective bargaining agreement ("CBA") between Retlaw and AFTRA. The CBA provided that an on-air artist terminated for "unsuitab[ility] for the Company's broadcast requirements" was not challengeable by arbitration if the fired employee received severance pay. Disciplinary discharges or discharges for misconduct, including insubordination, however, were subject to normal grievance and arbitration procedures.

On Sunday, October 20, 1991, the day the Oakland fire began, Haagenson was at KJEO-TV preparing the evening newscast. The Oakland fire developed into a tremendous calamity involving the loss of many lives, homes, and other property, and News Director George Faulder felt that Haagenson was slow to cover the breaking story, in spite of Faulder's express direction to cover the fire aggressively.

Faulder considered that Haagenson's behavior showed his "incompetence and insubordination," and that KJEO-TV's late coverage made the whole news operation look terrible. On the morning of the next day, October 21, Faulder told general manager Don Drilling that he wanted to fire Haagenson immediately. Drilling tried to calm Faulder down, and prepared a memorandum terminating Haagenson but giving him two options for ending his relationship with Retlaw.

On Tuesday, October 22, Haagenson was sent to Faulder's office when he arrived at work and was told he was fired. Faulder gave Haagenson the memorandum prepared by Drilling. The memorandum stated that because of Haagenson's "failure to use 'common journalistic sense' " in his coverage of the Oakland fire, and because Retlaw's research "indicates that our audience finds your on-air performance lacking," Haagenson After several days of negotiations, Haagenson telephoned Faulder to ask whether he "had a chance to consider giving me some hope that I might be able to stay on after the end of four weeks?" Haagenson testified:

                was "unsuitable for future KJEO employment."   The memo gave Haagenson two choices under a heading of "Severance Benefits."   Proposal A stated that Retlaw would terminate Haagenson for unsuitability as of this date and pay him severance benefits under the CBA, which provided that if an "On-Air Artist" (such as Haagenson) were discharged for "unsuitab[ility] ... for the Company's broadcast requirements ... the determination ... shall not be challengeable by arbitration" as long as Retlaw chose to pay severance pay to the terminated employee.  Proposal B provided "working severance," keeping Haagenson on staff for four weeks to allow him to look for other work.  The memo recommended that Haagenson consult with AFTRA about Proposal B, since it was not an option under the CBA
                

And [Faulder] indicated that he had, but it would have to be on the condition that I would agree to waive my rights under the union contract to any kind of termination procedure after that.

He said, I don't want you coming back for a month, and then a month later, you are slacking off and I have to fire you. And then I have to go through all the rigmarole [sic]. You know, you've got to agree. And I'm not--he said, I'm not sure that the union will let you, but you know, you see if you can do that. And those are the conditions under which I will consider rehiring you. That if you--only that you would go through this four-week period and then after that, I could, you know, basically terminate you at will.

After thinking it over, Haagenson called Faulder the next day and chose Proposal A, immediate termination with severance pay, telling Faulder "I didn't feel I could go along with that. But to continue working for a few weeks with no guarantee of anything and then to--would be foolish. I would be better off taking the first proposal and getting severance pay and looking for another job." Haagenson came in on October 28 to sign the memorandum, and spoke to Drilling, telling him, "I didn't see how what [sic] I could do differently in four weeks to make Bud [Faulder] change his mind. I thought that his standards for evaluating me were too subjective, and I wouldn't be able to please him anyway, so I might as well take the severance pay and look for another job." Drilling also signed the memorandum.

AFTRA filed a charge against Retlaw on November 15, 1991. An Administrative Law Judge ("ALJ") declined to defer the case to arbitration, ¹ and determined that Retlaw violated the National Labor Relations Act ("NLRA") when it "constructively discharged or denied reinstatement" to Haagenson by requiring him to "waive both his contract rights to protection against unjust termination in perpetuity as well as ... waive his rights to secure union representation respecting a future termination" as a condition for continued employment (emphasis in original). The NLRB issued a decision and order affirming the ALJ's decision.

DISCUSSION

This court upholds decisions of the NLRB "if its findings of fact are supported by substantial evidence and if the Board correctly applied the law," and defers to any "reasonably defensible" interpretation of the NLRA. NLRB v. General Truck Drivers, Local No. 315, 20 F.3d 1017, 1021 (9th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 355, 130 L.Ed.2d 310 (1994). "A reviewing court may not 'displace the [NLRB]'s choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.' " SKS Die Casting & Mach., Inc. v.

NLRB, 941 F.2d 984, 988 (9th Cir.1991) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951)). Credibility determinations by the ALJ are given great deference, and are upheld unless they are " 'inherently incredible or patently unreasonable.' " Local 512, Warehouse & Office Workers v. NLRB, 795 F.2d 705, 712 (9th Cir.1986) (quoting Photo-Sonics, Inc. v. NLRB, 678 F.2d 121, 123 (9th Cir.1982)).

I. Offer to settle potential grievance

Retlaw argues that Faulder's offer to rehire Haagenson, if Faulder could thereafter fire Haagenson at will, did not require Haagenson to waive his right to grieve any future termination. Instead, Retlaw claims that Faulder was merely offering to settle a potential grievance. Although the CBA provided that a termination for unsuitability could not be grieved, so that Haagenson could not grieve his termination as classified in the separation memorandum, Retlaw asserts that Faulder's statement was an attempt to settle a potential grievance over whether Haagenson properly was classified as an "on-air artist" who could be terminated for unsuitability.

The ALJ credited Haagenson's description of his telephone conversation with Faulder. The ALJ concluded that Faulder's statements were fairly interpreted not as an attempt to settle a potential grievance, but as requiring Haagenson and AFTRA to waive Haagenson's right to protection against unjust termination, whether for unsuitability or for any other reason, in perpetuity. Faulder did not give a different description of his statements. The NLRB affirmed the ALJ's finding.

We find that substantial evidence supports the NLRB's finding that Faulder's statements required Haagenson to waive his right to file a grievance regarding any future termination, whether for unsuitability or otherwise, should he return to work at Retlaw. As the ALJ noted, the "fair meaning" of Faulder's proposal was that after four weeks Faulder could "basically terminate [Haagenson] at will."

II. Agreement to waive representation for future terminations

The NLRB found that Faulder's statements to Haagenson denied him reinstatement in violation of Sec. 8(a)(1) of the NLRA, which provides "[i]t shall be an unfair labor practice for an employer ... to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in [section 7 of the NLRA, 29 U.S.C. Sec....