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LOCAL 771, I.A.T.S.E. v. RKO GEN.

August 24, 1976

LOCAL 771, I.A.T.S.E., AFL-CIO, Plaintiff,
v.
RKO GENERAL, INC., WOR DIVISION, Defendant



The opinion of the court was delivered by: POLLACK

POLLACK, District Judge.

 The employer (sometimes "the Company" hereafter) seeks to confirm and the Union (sometimes "Local 771" hereafter) on behalf of employees seeks to vacate an arbitrator's Award declaring that a labor dispute submitted for arbitration pursuant to the collective bargaining agreement between the parties is no longer arbitrable because it is time barred under the limitary provision of that agreement.

 The controversy started out as a lawsuit before the Court filed on February 21, 1975 based on Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185 and 28 U.S.C. § 2201 in which part of the relief sought by the Union plaintiff was to compel the employer defendant to arbitrate the labor dispute in question. No actual demand for arbitration, other than that contained in the complaint herein, was theretofore ever made by the Union.

 On January 12, 1976, the Union, for the first time, made a formal demand for arbitration of the labor dispute in question, in conformance with the rules of the American Arbitration Association incorporated in the collective bargaining agreement between the Union and the Employer. Pursuant to that demand the American Arbitration Association took jurisdiction and appointed an Arbitrator and the parties proceeded before him. The Employer's answer before the American Arbitration Association asserted that arbitration was time barred under the terms of the agreement for arbitration contained in the collective bargaining agreement.

 On April 9, 1976 the arbitrator, Eric Schmertz, rendered the award that is the subject of these motions. Setting the relevant "event" which triggered the running of the contractual limitary period at or about February 21, 1975, Schmertz decided that the contractually-required demand for arbitration was not filed within the requisite ninety days and, therefore, the dispute was not arbitrable. He noted the ambiguity of the clause of the agreement which articulates the ninety day rule but reasoned that if that clause (Article 15.02) doesn't require the filing and completion of arbitration within ninety days it at least required filing within that period. The filing of this action cannot be deemed a sufficient demand and no action taken by the Company during the pendency of this action constituted a waiver of the ninety day rule, according to the arbitrator.

 The Union, seeking to vacate this Award, contends that the filing of this suit demanding arbitration relief satisfied the timeliness requirement of the arbitration agreement and that the Employer's course of action tolled the limitary period provided by the arbitration agreement and estops the Employer from asserting untimeliness of demand.

 For the reasons set out hereafter the motion to confirm the Award is granted and the cross-motion to vacate the Award is accordingly denied.

 I.

 The defendant herein ("the Company"), is a division of RKO General which owns and operates a New York City television station, and moves pursuant to 9 U.S.C. §§ 9 and 13 to confirm the arbitrator's findings that the dispute herein is not arbitrable because of plaintiff's failure to make a timely demand for arbitration. The Company has its principal place of business in New York but does sufficient out-of-state business to qualify as an "employer . . . engaged in commerce" under 29 U.S.C. §§ 152(2), (6) and (7).

 The substantive dispute between the parties arises out of the Company's work assignments in connection with the operation of its new "mini-cam" television cameras.

 Originally there were two plaintiffs in this suit, two local unions representing certain of the Company's employees who claim the right to perform specific functions related to the use of this new camera. Local 644 of the International Photographers of the Motion Pictures ("Local 644"), the plaintiff union which represents those employees who claimed but were denied the right to actually operate the new camera, was dismissed from the suit by stipulation on March 12, 1976.

 The remaining plaintiff, Local 771 of the Motion Picture Film Editors ("Local 771"), represents present and former employees who claim the right to edit the videotape produced by the mini-cam. It, like Local 644, is affiliated with the International Alliance of Theatrical State Employees and Moving Picture Machine Operators, AFL-CIO (hereafter "the International") and represents employees in an industry affecting commerce within the meaning of 29 U.S.C. §§ 152(3), (4). Local 771 moves to vacate the arbitrator's award pursuant to 9 U.S.C. § 10.

 The History of the Dispute

 In 1970 the Company, whose television station was not known as a particularly "news-oriented" station, decided for the first time to broadcast a daily, one-half hour news program. As a result, it purchased two hand-held 16 mm. film cameras for newsgathering and hired members of Local 644 as film cameramen and members of Local 771 as news film editors. In addition, members of another union also affiliated with the International (Local 52 of the Motion Picture Mechanics) were hired to handle the light and sound equipment used along with the film cameras. *fn1"

 In late 1974, the Company removed its film cameras from its newsgathering operations and procured two new "mini-cam" television cameras which produce videotape directly rather than ordinary film. Before assigning the various aspects of the work involved in the use of this new device, the Company notified the local unions of its decision to introduce the new equipment. Each local claimed jurisdiction under its collective bargaining agreement over some aspect of the mini-cam work.

 However, on February 21, 1975 the Company announced its decision to assign all of that work to its Radio and Television Department (the "R & T Unit" or "the Engineers"), the employees of which are represented by the International but no member of which is represented by any of the above-mentioned local unions. All the members of Locals 52 and 644 working for the Company and two members of Local 771 were notified of their termination.

 On the same day as the Company's announcement, Locals 644 and 771 filed this suit. Their initial complaint sought (1) a declaratory judgment that the Company was under a contractual obligation to employ members of Local 644 to perform the functions set out in the collective bargaining agreement; (2) an order compelling a multilateral arbitration of the work assignment dispute over the editing, which arbitration would include Local 771, the Company and the International (which was named as a defendant along with the Company); (3) an order granting "appropriate equitable relief" directing ...


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