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MCLEOD EX REL. NLRB v. AMERICAN FEDN. OF TV & RADI

June 5, 1964

Ivan C. McLEOD, Regional Director of the Second Region of the National Labor Relations Board, for and on Behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
AMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS, NEW YORK LOCAL,Respondent



The opinion of the court was delivered by: TENNEY

This is a petition for a preliminary injunction pursuant to Section 10(l) of the National Labor Relations Act (herein called 'Act') 29 U.S.C. § 160(l) as amended, 73 Stat. 544-45(1959), 29 U.S.C. § 160(l) (Supp.1963). Petitioner, the Regional Director of the National Labor Relations Board, seeks a preliminary injunction against the erspondent labor organization pending a final disposition by the Board of an unfair labor practice charge filed on January 15, 1964, by the Westinghouse Broadcasting Company, Inc., (herein called 'Westinghouse').

The charge filed by Westinghouse alleged that respondent has engaged in and is engaging in an unfair labor practice within the meaning of Section 8(e) of the Act, 73 Stat. 543-44 (1959), 29 U.S.C. § 158(e) (Supp.1963). Section 8(e) in pertinent part provides:

 'It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or implied, whereby such employer ceases or refrains or agrees to cease or refrain from handling, using, selling, transporting or otherwise dealing in any of the products of any other employer, or to cease doing business with any other person, and any contract or agreement entered into heretofore or hereafter containing such an agreement shall be to such extent unenforcible and void * * *.'

 The petition is predicated upon the conclusion of the Board that it has reasonable cause to believe that the respondent is engaged in an unfair labor practice and that a Board complaint should issue thereon. The petition was brought on by an Order to Show Cause dated April 29, 1964 and returnable May 12, 1964. A hearing was held on May 12, 1964.

 At the hearing, no witnesses were called. The attorneys for the Board, Westinghouse and respondents, made their positions known by way of oral argument and memoranda of law submitted to the Court.

 During the course of the hearing, respondent consented to being enjoined from certain specified activities pending the disposition by the Board of the unfair labor practice charge. However, respondent does object to that part of the injunction which prevents it from proceeding to arbitration, to arbitrate inter alia grievances arising from a breach by Westinghouse of Paragraph 7 of the collective bargaining agreement -- the breach being the hiring by Westinghouse of a helicopter pilot without a representation required by that paragraph, viz., that he would be paid the same compensation as he would have received had he been hired by, or an employee of, Westinghouse. It is this paragraph that Westinghouse contends violates Section 8(e) of the Act.

 While there are other matters that respondent seeks to arbitrate, they are more closely related to the companion motion by Westinghouse (64 Civ. 1429) to stay the entire arbitration and will be discussed in the disposition of that motion.

 Upon the entire record, the Court makes the following findings of fact and conclusions of law:

 FINDINGS OF FACT

 1. Petitioner is Regional Director of the Second Region of the National Labor Relations Board, an agency of the United States, and filed the petition herein for and on behalf of the Board.

 2. On January 15, 1964, Westinghouse, pursuant to the provisions of the Act, filed a charge with the Board alleging that respondent, the American Federation of Television and Radio Artists, a labor organization, has engaged in and is engaging in an unfair labor practice within the meaning of Section 8(e) of the Act.

 3. The aforesaid charge was referred to petitioner as Regional Director of the Second Region of the Board.

 4. There is, and petitioner has, reasonable cause to believe that:

 (a) Respondent, an unincorporated association, is an organization in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment or conditions of work.

 (b) Respondent maintains its offices in the Borough of Manhattan, City of New York, and, at all times material herein, has been engaged within this judicial district in transacting business and in promoting and protecting the interests of its employee members.

 (c) Westinghouse, a Delaware corporation with offices in New York City, is the owner and operator of radio broadcasting station WINS. Its gross revenue derived from the operation of said radio station is in excess of $ 1,000,000. per annum.

 (d) On or about August 6, 1963, respondent and Westinghouse executed a collective bargaining contract for a term expiring on February 2, 1966, which contains the following provision, designated as Paragraph 7:

 'Nothing in this agreement shall be construed as preventing WINS from buying package shows or other broadcast material made exclusively for use over WINS from independent contractors providing, however, that WINS, in its contract with the packager receives a representation and warranty that the performers on the package program or other broadcast material have been paid compensation not less than the compensation which would have been payable to said performers if WINS had produced the program or other broadcast material itself.' (Emphasis added).

 (e) On October 21, 1963, Westinghouse and Carson Helicopters (herein called 'Carson') entered into a three-year contract, pursuant to which Carson agreed to make available to Westinghouse a helicopter and a licensed pilot to broadcast traffic reports, special news events, and other materials requested by Westinghouse, said pilot to be an employee of, and to be paid by, Carson. This contract does not contain a representation and warranty that the pilot will be compensated in accordance with Paragraph 7 of the collective bargaining agreement.

 (f) On or about November 20, 1963, respondent, pursuant to the arbitration provision of its aforesaid contract with Westinghouse, served Westinghouse with a written request to arbitrate 'a dispute which has arisen between us concerning the employment of a Helicopter Reporter on Radio Station WINS.' The demand for arbitration sets forth in greater detail the areas to be covered. Respondent, by the demand, sought to arbitrate inter alia a grievance that Westinghouse had 'arranged to purchase the services of a Helicopter Reporter as a package show from Carson Helicopters, Inc., (and that in said contract, notwithstanding Paragraph 7 of the collective bargaining agreement) * * * the Company has not made available to AFTRA a representation or warranty that the Helicopter Reporter so employed has been paid or will be paid not less than the compensation agreed upon by the Company as the compensation payable to such Helicopter Reporter if the Company had produced the program itself.'

 Westinghouse declined to arbitrate, whereupon respondent filed a demand for arbitration with the American Arbitration Association.

 (g) The charge against respondent is true in that Paragraph 7 of the collective bargaining agreement, set forth in Findings of Fact 4(d) and the basis of the charge by Westinghouse, is an unfair labor practice within the purview of activities proscribed by Section 8(e) of the Act.

 (h) Said conduct set forth in subdivision 4(f) of the Findings of Fact will affect commerce within the meaning of Section 2(6) and (7) of the Act.

 (i) It may fairly be anticipated that unless enjoined, respondent will continue to implement and give effect to Paragraph 7 of the collective bargaining agreement by pressing its demand to arbitrate a grievance arising under said paragraph.

 DISCUSSION

 Respondent did not file an answer to the petition. However, in its affidavit in opposition and during the course of the hearing it chose to controvert certain allegations set forth in the petition.

 Respondent's position with regard to Finding of Fact 4(f) is that, by its demand, it sought to have the arbitrators render a decision that Westinghouse failed to execute and oral agreement entered into between the parties on October 10, 1963, said agreement covering the terms and conditions of employment of the pilot and that the pilot would be an employee of Westinghouse. At this juncture the Court need not decide the efficacy of this oral agreement or whether it execution or lack thereof is an arbitrable issue. That issue is more clearly within the purview of the companion motion by Westinghouse, viz., 64 Civ. 1429. It is clear, however, from the demand for arbitration quoted in Finding 4(f) supra, and from the thrust of the arguments set forth in ...


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