Cbs Inc. v. International Photographers of the Motion Picture Industries, Local 644, I.A.T.S.E.
603 F.2d 1061
2d Cir.
1979
Check Treatment

*2 MULLIGAN, Before LUMBARD and SIFTON, Judges, Circuit District Judge.* PER CURIAM: The order entered in the Dis- Southern York, trict of New Hon. Constance B. Mot- ley, Judge, denying the motion of CBS for a stay proceeding of an arbitration demanded by the Photographers International of the Industries, Motion Picture Local I.A.T. (the Union), granting S.E. the Union’s arbitration, compel cross-motion to is af- substantially firmed for the reasons set opinion forth in the memorandum below. (S.D.N.Y. 1979). 77 Civ. 3916 Jan. may agree Judge While we Lum- history negotiation bard that the bargaining agreement collective question supports the conclusion that employee “layoffs” terminations are not “discharges”, we believe that this is a matter which in the first instance must be resolved the arbitrator and not the court. It is well established that federal, policy labor favors “arbitration as the resolving disputes means of over the mean ing and collective-bargaining effect of * York, sitting by designation. Of the Eastern District of New the instant terminations could Brothers, we find that Inc. v. Con Nolde agreements.” discharges within Local construed as possibly fectionery Workers 1067, 1073, of that term. That application 97 S.Ct. the rational U.S. inquiry; the terminations dismissals ends our whether Whether discharges lay- under the be deemed nonarbitrable are arbitrable should rather issue the arbitrator to decide. offs *3 in arbitration so issue to be determined Affirmed. actions we satisfied that CBS’ long as discharges construed as possibly be could LUMBARD, Judge (dissenting): Circuit of application the a rational “within analysis overlooks Since I believe their Electrical, of Union phrase.” International facts, my from I dissent brothers’ material Workers v. General and Machine Radio may this lay-offs the in that conclusion 253, Co., (2d 1968), Cir. F.2d 266 Electric 407 scope fall within the reasonably be said to denied, 904, 1742, 23 U.S. 89 S.Ct. cert. 395 clause. the arbitration parties’ of (1969). 217 in case dates from the dispute The this the ordinary meanings of terms The spring when CBS notified four long recog have been discharge layoff jobs to its that their were film cameramen discharge by normally the A nized courts. the be as a result of network’s eliminated employment the means the “termination of to electronic conversion from film cameras position.” a relationship Fishgold loss of or the Typical of the notices was minicams. Corp., & Drydock Repair v. Sullivan one sent to cameraman Bruce Hoertel: 275, 286, 90 L.Ed. 66 S.Ct. U.S. duty formally notify you It to my is hand, (1946). layoff, on the other is A know the something you I believe was in ordinarily “period temporary a dismiss wind; of the CBS News conver- because al”; anticipation term the inherent in the coverage, your sion camera to electronic 286-87, 66 n.11 of recall. Id. at 287 & S.Ct. will employment with CBS News staff 1105; accord, Manufacturing v. Lord Co. July end on Nemenz, (W.D.Pa.1946); F.Supp. your of service and recognize years We Co., Acme 227 N.L.R.B. 249 see Industrial do to News and will contribution CBS in help you we can relocate whatever to argument In of its that the support the business. newsfilm discharges question in were terminations pay plus any Your double severance layoffs than the Union asserts that rather you proc- will time still due be vacation nowhere the termination notices the payment. Frank promptly essed for used, nor do notices layoff word the allude you any is available to for Fitzpatrick recall. In any possibility employee to necessary de- help or in the clarification deed, language suggests the of the notices procedure. tails this employment the severance of with that who received ter- Three the cameramen example, permanent; was for the no CBS grievances with the mination notices filed try tices state that will to “relocate” CBS Union, subsequently de- and the Union employees the terminated in the newsfilm them. When manded that CBS reinstate Moreover, was business. evidence intro refused, attempted Union the network the subsequent duced in the district court that arbitration, to submit the matter to the terminations hired freelance CBS enjoin arbitra- brought this action CBS type same perform cameramen to the tion. work handled the terminated formerly bargaining agree- The employees though parties’ no offer even a even clause, but general arbitration to those em ment has no limited recall had been made in- disputes 21 that provides paragraph ployees. light of these circumstances suspension” “discharge will accepted judicial volving the or long under arbitration, with the arbitra- standing layoff, of the words submitted partic- electronic minicams was a matter of only determine whether CBS’ action tor to arbitrary capricious. or The Union has during negotiations over the ular concern that were argued the three film cameramen the parties’ contract. Both CBS and Union discharged suspended or within the mean- develop- technological were that this aware paragraph 21 and arbitration is ing of film ment would reduce the number of cam- accordingly proper. that the responds CBS protect To eramen needed the network. “laid-off,” discharged cameramen were reason, members laid-off for this any of its suspended, parties, or and that the antici- the initially demanded that net- pating lay-offs would follow the net- lay- such give six months notice of work minicams, conversion to work’s electronic offs, provide pay double severance to those special including provision, arbi- made give preference em- to laid-off tration, jobs employees who lost other ployees for net- reason. for this negoti- parties’ work. The end result search for intent in this a side letter ations was *4 must, course, begin spe- of with the matter of give lay-offs, least four weeks at notice language cific of the arbitration clause con- eight employees to more than weeks with paragraph surprisingly, tained 21. Not on a years seniority, attempt, five best however, phrase suspen- the “discharge or basis, employment efforts to find other sion,” itself, by considered could inter- network for Ac- within the those laid-off. preted covering covering as or the net- CBS, agreed to cording it was also that Focusing solely work’s action. on the fact given pay to double severance would be have, four that the cameramen at least laid-off cameramen with a certain level of temporarily, positions, lost their it could be Although expression no seniority. written they discharged suspend- or said that were agreement presented, of this has been the time, ed. the same At since a or has not denied and con- its existence suspension generally reflects an assessment pay cedes that double was in fact severance behavior, employee’s competence or the given. terminology lay-off the describes more cameramen, aptly the situation of the point four negotiations At no in the does it who were released not because unsatis- parties the appear that shifted their atten- performance factory but because rather tion from the issue of compensation for jobs longer necessary. were no anticipated lay-offs victims to the question power of whether CBS’ order ambiguity Faced this initial in the ought lay-offs Certainly such to be limited. bargaining agreement, major- collective the parties if the did the net- intend to limit ity parties directs the to arbitration without area, authority in considering work’s this the arbitra- even undisputed facts concern- clause, ing agreement’s establishing tion under an the circumstances of the review standard, I presump- capricious formation. do not believe the was an arbitrary favoring arbitrability tion so requires meth- improbable expression purpose. of their approach interpreta- odical to contract as to which employees CBS’ discretion were tion, least parties at where the have at- substantially already to be laid-off was lim- tempted range narrow the of arbitrable provi- the standard ited labor contract disputes by adopting a rather limited than lay-offs proceed rehiring sion that broad arbitration majority’s clause. The seniority. primary The decision order of approach is particularly troublesome in the subject to the arbitrator’s would review case, instant since I ambiguity believe the been the thus have network’s determination parties agreement in the dissolves when the film positions that some cameramen were circumstances of their bargaining collective longer necessary operations, type no to its a are taken into account. judgment for which under an review out, pointed As has consequences arbitrary capricious CBS the standard would little, prospective any, of the network’s conversion to make if sense. majori- identified the only reason INDUSTRIES, in- conclusion that the supporting a INC. and

ty as PUBLICKER Corporation, parties the “dis- Distilling dispute falls within stant Continental suspension” arbitration clause Appellants, v. charge and employ- loss four cameramen’s the rather than likely permanent ment CERAMICS CORPORATION. ROMAN majority, this According to the temporary. cameramen were suggests that the fact No. 78-2400. “is lay-off since discharged but a ‘period temporary Appeals, dismiss- United Court ordinarily States ” added). But the (emphasis whatever Third Circuit. al.’ there ordinary meaning lay-off, of the term Argued June 1979. parties question no in this can be Aug. intended it to embrace situation Decided permanently who are released cameramen to elec-

because of network’s conversion cameras. The clearest evidence

tronic the side letter to the

this is contained in

parties obligates give extra notice to seek other cameramen jobs introduc- lose their because

who *5 provisions The relocation

tion of minicams. obviously agreement contemplate

of that employment, yet the loss of

permanent terminology not of

agreement employs Indeed, if the lay-off. but of layoff of the is

majority’s construction term seriously, presumably is

to be taken agreement its argue

now free attempt extra to relocate

give notice and applies only cameramen to those temporary,

cameramen whose release cameramen, though they

to those even need, greater whose loss of permanent. sum, I believe a of the consideration

parties’ collective formation

and the circumstances its dispute clear the instant is not

makes the na- Courts do no service to

arbitrable. policy favoring by ignor- arbitration

tional

ing intention clear evidence disputes particular of a character

be submitted to arbitration.