Taft Broadcasting Co. v. Columbus-Dayton Local

• Decision Date: 15 December 1961
• Docket Number: No. 14542.,14542.
• Citation: 297 F.2d 149
• Parties: TAFT BROADCASTING COMPANY, A Delaware Corporation (Substitute Party for WTVN, Inc.), Plaintiff-Appellee, v. COLUMBUS-DAYTON LOCAL OF the AMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

297 F.2d 149 (1961)

TAFT BROADCASTING COMPANY, A Delaware Corporation (Substitute Party for WTVN, Inc.), Plaintiff-Appellee, v. COLUMBUS-DAYTON LOCAL OF the AMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS, Defendant-Appellant.

No. 14542.

United States Court of Appeals Sixth Circuit.

December 15, 1961.

Eugene L. Matan, Columbus, Ohio, (Gareff, Matan & Janes, Columbus, Ohio, on the brief), for defendant-appellant.

Roger F. Day, Columbus, Ohio (Dargusch, Saxbe & Dargusch, Carlton S. Dargusch, Jr., Columbus, Ohio, on the brief), for plaintiff-appellee.

Before CECIL and WEICK, Circuit Judges, and DARR, District Judge.

WEICK, Circuit Judge.

The action in the District Court was one for declaratory judgment in which an adjudication was sought that a dispute between television station WTVN and the union over the discharge of an alleged employee was not arbitrable under the provisions of a collective bargaining agreement between the parties.

The parties stipulated the facts. The District Judge adopted findings of fact and conclusions of law. He held that the union member was not an employee of television station WTVN¹, and, therefore, the dispute was not arbitrable under the collective bargaining agreement.

William Jorgensen, the alleged employee of WTVN, had been employed as a radio newscaster since November 28, 1955 by Radio Columbus, Inc., an Ohio corporation, which owned and operated a radio station in Columbus, Ohio. The terms and conditions of the employment were later evidenced by a written agreement dated April 17, 1956 which was amended on May 24, 1957 and March 4, 1958. Under the agreement, the employment was on a full-time basis and Jorgensen could not, without the station's approval, render service to any other employer in the radio or television business. Under the agreement the employment could be terminated by either party at will.

Sam Johnston, Manager of Radio Columbus, asked Jorgensen if he would be interested in doing an 11:00 o'clock p. m. news telecast at television station WTV N. Thereafter Jorgensen was contacted by Wally McGough, Manager of WTVN and was offered $50.00 a week for preparing and giving a fifteen minute 11:00 o'clock p. m. newscast over channel 6 WTVN Monday through Friday. He began the newscasts on June 2, 1958. He continued to perform the radio newscasts for Radio Columbus. The payment for services rendered to WTVN was in addition to the compensation he received for services rendered to the radio station. The compensation for the television newscast was later increased to $75.00 a week. Jorgensen's compensation for radio and television service was paid to him weekly by check of Radio-Columbus after it withheld appropriate tax and social security deductions. An amount equal to Jorgensen's television earnings was transferred weekly from WTVN to Radio Columbus by means of a bookkeeping entry on the books of the respective corporations entered in their common accounting department. Jorgensen was required both by WTVN and the union to join the union in order to perform the newscasts at WTVN. The union had a collective bargaining agreement with WTVN, but not with Radio Columbus.

On September 28, 1958, Jorgensen was discharged from both radio and television stations. He received and accepted a check from Radio Columbus representing accrued gross compensation for radio and television services including certain amounts of severance pay, vacation pay, talent fees and salary for radio and severance pay, vacation pay and talent fees for television services.

The union claimed that the discharge of Jorgensen from WTVN violated its collective bargaining agreement with that station and demanded arbitration of the dispute. It did not claim, however, that the discharge was motivated by union activity or union affiliation. It was conceded by counsel in this Court that the demand for arbitration was timely made. This case does not involve Jorgensen's discharge as a radio newscaster of Radio Columbus as that company had no collective bargaining agreement with the union.

In the District Court, WTVN contended successfully that Jorgensen was not its employee, but on the other hand was the employee of Radio Columbus and hence the collective bargaining agreement had no application.

The union first contends that the arbitrator and not the court should decide whether Jorgensen was an employee of WTVN.

The stipulation filed in the District Court provides:

"14. Plaintiff and defendants agree that the sole issues before this Court are whether William Jorgensen was an employee of WTVN, Inc. and whether the matter of the termination of his services at WTVN, Inc., is an arbitrable issue under the terms of the collective bargaining agreement between WTVN, Inc. and the defendant union."

In view of this stipulation it would seem that the Court and not the arbitrator is to determine whether Jorgensen was an employee of WTVN. The stipulation precludes the union from claiming otherwise. If Jorgensen was not an employee of WTVN, then the collective bargaining agreement could not help him as it applies only to its employees.

Whether Jorgensen was an employee of WTVN must be determined by the stipulation as no other evidence was offered. It further provides:

"9. During the period that William C. Jorgensen performed television news casts at WTVN, Inc. he was under the general control and direction of WTVN, Inc. respecting such news casts. He was given instructions by management of WTVN, Inc. on occasion and he carried out these instructions; he was given items and instructed to incorporate them into his telecasts; which he did; and he attended various functions as the representative of WTVN, Inc., such as ground-breakings and press conferences. William C. Jorgensen did not receive any instructions concerning his television news casts from Radio Columbus, Inc. personnel or from Sam Johnston, Manager of Radio Columbus, Inc."

We think that under the stipulation Jorgensen must be held to be a part-time employee of WTVN. At the time he performed newscasts he was under its general control and direction. It would be liable for torts committed by him in the course of that employment. Even though he had been merely a "loaned" servant, he would still be regarded as an employee of WTVN when performing services for it. N. L. R. B. v. Nu-Car Carriers, Inc., 189 F.2d 756 (CA 3); Howard W. Luff Co. v. Capece, 61 F.2d 635 (CA 6); Stevenson v. Lake Terminal R....