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EVERGREEN MEDIA CORP. v. RADIO & TV BROADCAST ENG'

October 15, 1997

EVERGREEN MEDIA CORPORATION, Plaintiff,
v.
RADIO & TELEVISION BROADCAST ENGINEERS, LOCAL UNION NUMBER 1220 OF THE BROTHERHOOD OF ELECTRICAL WORKERS, Defendant.



The opinion of the court was delivered by: ASPEN

 MARVIN E. ASPEN, Chief Judge:

 Plaintiff Evergreen Media Corporation (Evergreen), seeking a declaration that it is no longer obliged to respect the terms of its collective bargaining agreement (the Agreement) with Defendant Radio & Television Broadcast Engineers (the Union), filed this suit under section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185. Upon receiving the Union's answer to its complaint, Evergreen filed the motions presently before us, asking that we dismiss the Union's counterclaim and strike the Union's affirmative defenses. For the reasons given below, we deny both motions.

 I. Background

 Evergreen owns and operates radio stations WLUP-AM and FM in the Chicago area, and the Union is the collective bargaining agent for the broadcast technicians and engineers that Evergreen employs at those stations. See Compl. Ex. A (Agreement). The parties entered into the Agreement in March, 1993, see Compl. P 7; Answer P 7, and its continued binding force is the subject of this suit.

 The Agreement provided that it would expire on October 31, 1995, so long as one party wanted to terminate or modify it and gave 60 days notice of this intention to the other party; if neither party gave such notice, the Agreement was to remain in effect on a year-to-year basis. Compl. Ex. A (Agreement Art. I, §§ 1 and 2). On August 29, 1995, shortly before the 60 day deadline, Evergreen sent a letter to the Union giving notice of Evergreen's desire that the Agreement terminate. Compl. Ex. B (Letter to Jessica Logan). On October 31, 1995, the parties commenced negotiations to replace the Agreement, see Compl. P 11; Answer P 11, but those negotiations have not been successful and the parties have not agreed on a new collective bargaining agreement, see Compl. P 12; Answer P 12.

 The Agreement further provided that even if one party tendered a proper notice of termination or modification, the Agreement's terms would remain in effect -- as "status quo conditions" -- until October 31, 1995, after which either party could unilaterally terminate those conditions by sending written notice to the other party. Compl. Ex. A (Agreement Art. I, § 2). In February, 1996, following the Union's alleged abandonment of negotiations, see Compl. P 13, Evergreen sent the Union a letter purporting to end the status quo conditions. Compl. Ex. D (Letter to Jessica Logan). The Union objects that this suspension was unlawful under the National Labor Relations Act (NLRA) since the parties had not reached a bargaining impasse, see Richmond Recording Corp. v. NLRB, 836 F.2d 289, 293 (7th Cir. 1987) (citing cases), and it contends that the status quo conditions therefore remain in effect. See Answer P 13.

 Unsatisfied with Evergreen's conduct during the negotiations, the Union lodged with the National Labor Relations Board (NLRB) two unfair labor practice charges against Evergreen. The first of these, Charge No. 13-CA-34123, filed in March, 1996, alleged that Evergreen refused to comply with the Union's requests for information, many of which concerned WRCX-FM, a station the Union contends the Agreement covers. See Answer P 1 and Exs. 1 and 2. The second, Charge No. 13-CA-34430, filed in July, 1996, complained of a host of improprieties: Evergreen's refusal to bargain with the Union, wrongful suspension of status quo conditions, assignment of bargaining unit work to non-bargaining unit employees, threats of discipline against employees who support the Union, refusal to process grievances in the agreed-upon manner, and improper direct bargaining with an employee. See Answer Ex. 3. The NLRB consolidated the Union's two Charges but postponed a hearing on them pending the completion of its investigation. See Answer Ex. 4 (NLRB Order).

 Evergreen filed this declaratory judgment action in October, 1996, prompting the Union to move for dismissal of the suit for lack of subject matter jurisdiction. The Union argued that Congress granted the NLRB exclusive jurisdiction over unfair labor practices such as an employer's improper termination of status quo conditions. See Evergreen Media Corp. v. Radio & Television Broad. Eng'rs, 1997 U.S. Dist. LEXIS 7273, No. 96 C 6661, 1997 WL 282597, at *3 (N.D. Ill. May 19, 1997). Evergreen responded, in essence, that the parties contracted around the NLRA's impasse requirement and that its suit was merely one to enforce the Agreement. See id. We held that even if Evergreen's termination of status quo conditions was an unfair labor practice over which the NLRB has jurisdiction, Evergreen's declaratory judgment suit concerned the proper interpretation of the Agreement, and our jurisdiction was therefore proper under 29 U.S.C. § 185. See id. at *4. We acknowledged that our ruling might have left this Court and the NLRB with concurrent jurisdiction over various aspects of the underlying dispute, but we declined the Union's request that we stay the proceedings in this case until the NLRB issued its ruling. See id. Apparently unhappy with this outcome or fearful that it might otherwise forfeit its claims, the Union in its Answer incorporated the substance of each of its unfair labor practice allegations, now styled as a counterclaim and as affirmative defenses. Evergreen's motion to dismiss the counterclaim and to strike the affirmative defenses is now before us.

 II. Motion to Dismiss Counterclaim

 Evergreen moves that we dismiss the Union's counterclaim on the ground that we lack subject matter jurisdiction to hear it. See FED. R. CIV. P. 12(b)(1 ), (h)(3). We evaluate this motion on the same basis as a motion to dismiss a complaint, see Tice v. American Airlines, Inc., 1997 U.S. Dist. LEXIS 1949, No. 95 C 6890, 1997 WL 80911, at *3 (N.D. Ill. Feb. 21, 1997): we take all of the Union's well-pleaded facts and allegations as true and we view their reasonable inferences in the Union's favor, see Ezekiel v. Michel, 66 F.3d 894, 897 (7th Cir. 1995).

 In its counterclaim, the Union repeatedly alleges that Evergreen committed acts which "interfered with and restrained the Union's ability to perform its duties as the exclusive collective bargaining representative of Plaintiff's Broadcast Engineers and Technicians," thereby violating "both the spirit and terms of the Agreement, and/or the LMRA, and/or the NLRA." E.g., Countercl. P 2. These include: adding a new station, WRCX, on the premises and objecting to the Union's jurisdiction over the employees at WRCX, see id. PP 1-3; refusing to bargain its decision to relocate WRCX, id. P 8; terminating the status quo conditions before bargaining to impasse, see id. PP 4, 5; failing to put its bargaining proposals in writing, see id. P 6; refusing to meet with the Union prior to October 31, 1995, see id. P 7; refusing to comply with the Union's information requests, see id. P 9; subcontracting bargaining unit work at WRCX to non-bargaining unit employees, see id. P 10; threatening bargaining unit members with discipline for supporting the Union, see id. P 11; failing to process hundreds of grievances filed by the Union, see id. P 12; and bargaining directly with a member of the bargaining unit, see id. P 13. The Union asks that we order Evergreen to remedy these violations and that we award any other available relief.

 Evergreen contends that these accusations amount to nothing more than allegations of unfair labor practices, and it reminds us that the NLRB has exclusive jurisdiction over such allegations. *fn1" See, e.g., William E. Arnold Co. v. Carpenters Dist. Council, 417 U.S. 12, 16, 40 L. Ed. 2d 620, 94 S. Ct. 2069 (1974). We note that the Union, too, believes them to be allegations of unfair labor practices, as each appears in at least one of the Union's two filings with the NLRB. See Answer Exs. 1-3.


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