National Ass'n of Broadcast Employees & Technicians v. American Broadcasting Co.

140 F.3d 459, 158 L.R.R.M. (BNA) 2008, 1998 U.S. App. LEXIS 7409, 1998 WL 174671
CourtCourt of Appeals for the Second Circuit
DecidedApril 15, 1998
DocketDocket Nos. 97-7010, 97-7409
StatusPublished
Cited by17 cases

This text of 140 F.3d 459 (National Ass'n of Broadcast Employees & Technicians v. American Broadcasting Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
National Ass'n of Broadcast Employees & Technicians v. American Broadcasting Co., 140 F.3d 459, 158 L.R.R.M. (BNA) 2008, 1998 U.S. App. LEXIS 7409, 1998 WL 174671 (2d Cir. 1998).

Opinion

WINTER, Chief Judge:

The National Association of Broadcast Employees & Technicians (“NABET”) appeals from Judge Sprizzo’s confirmation of three arbitration awards. In the course of reviewing the merits of these awards, the district court held that NABET’s dispute with appellees (collectively, “ABC”) was arbitrable under the pertinent collective agreement. NABET argues that the district court incorrectly concluded the arbitrator had power to hear the underlying dispute and that, even if the dispute is arbitrable, NABET is entitled to a second arbitration hearing because no court determined prior to the first arbitration that the dispute was arbitrable. We affirm.

BACKGROUND

For decades, NABET and ABC have been parties to successive collective bargaining agreements governing ABC’s employment of NABET members. However, these agreements, including the one pertinent to this appeal, cover the terms and conditions of employment of NABET members only in the continental United States. ABC’s employment of NABET members in Hawaii has given rise to the present dispute.

In October 1996, ABC began hiring “freelancers,” most of whom were NABET members, for its Christmas Day broadcast of the Aloha Bowl in Hawaii. The hiring of freelancers caused NABET to demand recognition from ABC as the freelancers’ collective bargaining representative. ABC refused. NABET then sent a letter to its members, stating that it intended to represent the freelancers and would engage in “lawful activities designed to achieve fair working conditions” for them.

ABC feared that NABET would disrupt ABC’s broadcast of the Aloha Bowl. Accordingly, it filed a grievance with the Impartial Umpire provided for in the collective bargaining agreement, claiming that any disruptive activities would violate the agreement. Although all agree that the collective bargaining agreement does not govern ABC’s employment of NABET members in Hawaii, ABC maintained that any disruptive activities by NABET were prohibited by Section 5.1 of the agreement even if they occurred in Hawaii. That Section provides in pertinent part:

It is agreed that there will be no stoppage of work, lockout, or other interference with Company operations and that the employees hereunder will perform their regular and customary duties for the Company until one of the parties has failed to comply with any final decision of the Impartial Umpire or an arbitrator pursuant to Article XX.

ABC further argued that, because Section 20.10 of the agreement provides that one party may pursue arbitration when it believes the other is about to violate Section 5.1, ABC was entitled to arbitration of the dispute. Section 20.10 provides in pertinent part:

Notwithstanding any of the foregoing provisions of this Article XX, if a party to the Agreement claims that there will be a violation of Article V, ... such party shall have the right to file a grievance directly with the Impartial Umpire setting forth such claim, demanding injunctive relief, and invoking the expedited arbitration procedure set forth below. However, this Section 20.10, which is applicable only to actions not yet effectuated, shall be used only if time does not permit the processing of the grievance under the other sections of Article XX____ Under the expedited [461]*461procedure, the arbitration hearings shall commence at the earliest possible availability of the Impartial Umpire, but in no event no more than twenty-four (24) hours after the grievance has been filed----
... The award of the Impartial Umpire shall be rendered at the earliest possible time and in any event no later than twenty four (24) hours after the hearing has been closed____ The Impartial Umpire shall be empowered under this procedure to order injunctive relief or such other remedy as he or she deems appropriate if the Umpire finds there has been or will be a violation of one of the provisions [of Article V].

NABET disputed both that the underlying dispute was arbitrable and that the activities in Hawaii violated Section 5.1 of the agreement.

On December 17, 1996, the Umpire concluded that he had authority under the agreement to determine the arbitrability of the dispute and that the dispute between ABC and NABET was arbitrable. The next day, the Umpire conducted a hearing on the merits of the grievance. Continuing to challenge the Umpire’s determination of arbitrability, NABET did not participate in this hearing. On December 19, the Umpire determined that NABET had violated Section 5.1 of the collective bargaining agreement and ordered it not to interfere with ABC’s broadcast of the Aloha Bowl. The Umpire also retained jurisdiction to consider ABC’s request for additional injunctive relief regarding the broadcasts of the Pro Bowl scheduled for February 2, the Battle of the Gridiron to be taped on January 30 and broadcast on February 2, and the Hawaiian Open scheduled for February 15-16.

Although NABET did not participate in the Umpire’s hearing on the merits of the dispute or ask a court to enjoin the arbitration, it brought the present action seeking, inter alia, to vacate the arbitrator’s awards on both arbitrability and the merits. The district court independently determined that the dispute between NABET and ABC over the Aloha Bowl, as well as any future similar dispute between the parties, was arbitrable, and confirmed both awards.

A few days later, ABC requested another hearing before the Umpire to seek relief against NABET’s planned disruptive activities at the Pro Bowl and other ABC events in Hawaii. NABET initially stated that it would participate but later accused the Umpire of bias and failed to appear. The Umpire held the hearing in NABET’s absence and, on January 22, 1997, issued an award prohibiting NABET from interfering with ABC’s February sporting events in Hawaii.

On January 28, ABC sought an order of contempt against NABET and a confirmation of the January 22 Award. The district court confirmed the Award but declined to hold NABET in contempt until a full factual record could be developed. NABET has appealed from the confirmation of the various arbitration awards.

DISCUSSION

NABET advances two primary arguments on appeal, namely, that the dispute was not arbitrable and that, even if it were arbitrable, the awards are nevertheless void because the issue of arbitrability was not determined by a court prior to arbitration.

A. Arbitrability of the Dispute

Review of a district court’s determination that a dispute is arbitrable is de novo, see ConnTech Dev. Co. v. University of Conn. Educ. Properties, Inc., 102 F.3d 677, 683 (2d Cir.1996), and such questions generally are resolved in favor of arbitration. See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626, 105 S.Ct. 3346, 3353-54, 87 L.Ed.2d 444 (1985). A grievance is arbitrable “unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.” AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 650, 106 S.Ct.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Ribadeneira v. New Balance Athletics, Inc.
65 F.4th 1 (First Circuit, 2023)
Trina Solar US, Inc. v. JRC-Services LLC
229 F. Supp. 3d 176 (S.D. New York, 2017)
Logan & Kanawha Coal Co. v. Detherage Coal Sales, LLC
514 F. App'x 365 (Fourth Circuit, 2013)
Abondolo v. Jerry WWHS Co.
829 F. Supp. 2d 120 (E.D. New York, 2011)
NEWSPAPER GUILD/CWA OF ALBANY v. Hearst Corp.
645 F.3d 527 (Second Circuit, 2011)
Newspaper Guild v. Hearst
Second Circuit, 2011
Stasz v. Schwab
17 Cal. Rptr. 3d 116 (California Court of Appeal, 2004)
Brake Masters Systems, Inc. v. Gabbay
78 P.3d 1081 (Court of Appeals of Arizona, 2003)
Brake Masters v. Gabbay
Court of Appeals of Arizona, 2003
Donel Corp. v. Kosher Overseers Ass'n of America, Inc.
31 F. App'x 767 (Second Circuit, 2002)
Cpr (Usa) Inc., Cpr v. Philip R. Spray
187 F.3d 245 (Second Circuit, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
140 F.3d 459, 158 L.R.R.M. (BNA) 2008, 1998 U.S. App. LEXIS 7409, 1998 WL 174671, Counsel Stack Legal Research, https://law.counselstack.com/opinion/national-assn-of-broadcast-employees-technicians-v-american-ca2-1998.