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C.B.S., INC. v. INTERNATIONAL PHOTOGRAPHERS OF THE

January 22, 1979

C.B.S., Inc., Plaintiff, against INTERNATIONAL PHOTOGRAPHERS OF THE MOTION PICTURE INDUSTRY, LOCAL 644, I.A.T.S.E., Defendant.


The opinion of the court was delivered by: MOTLEY

MEMORANDUM OPINION

Plaintiff, C. B. S., Inc., has moved for a temporary injunction enjoining defendant, Local 644, from proceeding with the arbitration demanded by defendant and for a declaratory judgment that plaintiff is not required to submit the question raised by Local 644 with respect to the termination of three CBS employees to arbitration on the grounds that 1) there is no agreement to arbitrate any dispute with defendant under the agreement to which plaintiff and defendant are parties, and 2) the terminations which are the subject of the proposed arbitration were layoffs, and layoffs are not arbitrable under the agreement. Local 644 has cross-moved for an order pursuant to 9 U.S.C. ยง 4 compelling CBS to proceed to arbitration. CBS's motion for stay of arbitration is denied and Local 644's motion to compel arbitration is granted for the reasons which follow.

 Local 644's submission stated the issue to be arbitrated to be the "arbitrary and capricious discharges" of three union members, Alston, Bessor and Hoertel. (Plaintiff's moving affidavit (affidavit of N. Berman) Exhibit G). CBS does not deny that the agreement between it and Local 644 includes an arbitration clause making referable to arbitration any dispute involving discharges of employees.

 The agreement, dated August 9, 1976, provides in paragraph 21 as follows:

 
Discharge or Resignation : A regular employee shall give or receive two (2) weeks' notice in the event of resignation or discharge, except that such notice may not terminate his employment before the end of any assignment.
 
With respect to a regular cameraperson with at least six (6) months' service with the Company, a notice of discharge or a notice of suspension shall be in writing with a copy sent to the Union. At the Union's request, a representative of the Labor Relations Department will meet promptly with a Union representative and the employee's supervisor to discuss the matter. If the matter cannot be settled by the parties, the Union may submit the matter for arbitration by an arbitrator to be selected in accordance with the Voluntary Labor Arbitration Rules of the AAA. In such arbitration, the arbitrator will be empowered to determine whether the action of the Company was arbitrary or capricious. If the arbitrator finds that the Company did not act in an arbitrary or capricious manner, he shall not substitute his judgment for the judgment of the Company as to the justification for the discharge or suspension. The costs of such arbitration will be borne equally by the Company and the Union.
 
The Union agrees that with respect to any discharge or suspension hereunder, the Union and the employees covered by the Agreement will not strike, picket or otherwise interfere with the operations of the Company.

 The notice given the three terminated employees reads as follows:

 
It is my duty to formally notify you of something I believe you know was in the wind; because of the CBS News conversion to electronic camera coverage, your staff employment with CBS News will end on July 23, 1977.
 
We recognize your years of service and contribution to CBS News and will do whatever we can to help you relocate in the newsfilm business.
 
Your double severance pay plus any vacation time still due you will be processed promptly for payment. Frank FitzPatrick is available to you for any clarifications or help necessary in the details of this procedure.

 A copy of this notice was sent to Darwin Deen, Business Representative of Local 644 as required by paragraph 21, supra.

 Deen then wrote to CBS as follows:

 
We are protesting the arbitrary and capricious discharges of camera-persons Herbert G. Alston, John Bessor and Bruce Hoertel, who are covered by our collective bargaining agreement ...

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