Cbs Inc. v. International Photographers of the Motion Picture Industries, Local 644, I.A.T.S.E. ( 1979 )

PER CURIAM:

The order entered in the Southern District of New York, Hon. Constance B. Motley, Judge, denying the motion of CBS for a stay of an arbitration proceeding demanded by the International Photographers of the Motion Picture Industries, Local 644, I.A.T. S.E. (the Union), and granting the Union’s cross-motion to compel arbitration, is affirmed substantially for the reasons set forth in the memorandum opinion below. 77 Civ. 3916 (S.D.N.Y. Jan. 25, 1979).

While we may agree with Judge Lumbard that the history of the negotiation of the collective bargaining agreement in question supports the conclusion that the employee terminations are “layoffs” and not “discharges”, we believe that this is a matter which in the first instance must be resolved by the arbitrator and not the court.

It is well established that federal, labor policy favors “arbitration as the means of resolving disputes over the meaning and effect of collective-bargaining agreements.” Nolde Brothers, Inc. v. Confectionery Workers Union Local 358, 430 U.S. 243, 254, 97 S.Ct. 1067, 1073, 51 L.Ed.2d 300 (1977). Whether the terminations in issue are arbitrable discharges under the parties’ collective bargaining agreement is an issue to be determined in arbitration so long as we are satisfied that CBS’ actions could possibly be construed as discharges “within a rational application of the phrase.” International Union of Electrical, Radio and Machine Workers v. General Electric Co., 407 F.2d 253, 266 (2d Cir. 1968), cert. denied, 395 U.S. 904, 89 S.Ct. 1742, 23 L.Ed.2d 217 (1969).

The ordinary meanings of the terms discharge and layoff have long been recognized by the courts. A discharge normally means the “termination of the employment relationship or loss of a position.” Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 286, 66 S.Ct. 1105, 1112, 90 L.Ed. 1230 (1946). A layoff, on the other hand, is ordinarily a “period of temporary dismissal”; inherent in the term is the anticipation of recall. Id. at 287 n.11 & 286-87, 66 S.Ct. 1105; accord, Lord Manufacturing Co. v. Nemenz, 65 F.Supp. 711, 723 (W.D.Pa.1946); see Acme Industrial Co., 227 N.L.R.B. 249 (1976).

In support of its argument that the terminations in question were discharges rather than layoffs the Union asserts that nowhere in the termination notices is the word layoff used, nor do the notices allude to any possibility of employee recall. Indeed, the language of the notices suggests that the severance of employment with CBS was permanent; for example, the notices state that CBS will try to “relocate” the terminated employees in the newsfilm business. Moreover, evidence was introduced in the district court that subsequent to the terminations CBS hired freelance cameramen to perform the same type of work formerly handled by the terminated employees even though no offer of even a limited recall had been made to those employees. In light of these circumstances and the long accepted judicial understanding of the words discharge and layoff, we find that the instant terminations could possibly be construed as discharges within the rational application of that term. That ends our inquiry; whether the dismissals should rather be deemed nonarbitrable layoffs is for the arbitrator to decide.

Affirmed.