Time Warner Enm't advance/newhouse P'ship v. Town of Landis

Time Warner Entm’t Advance/Newhouse P’ship v. Town of Landis, 2011 NCBC 19.

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF
JUSTICE
ROWAN COUNTY SUPERIOR COURT DIVISION
10 CVS 1172
TIME WARNER ENTERTAINMENT
ADVANCE/NEWHOUSE
PARTNERSHIP,

Plaintiff,
ORDER & OPINION
v.

TOWN OF LANDIS, NORTH
CAROLINA,

Defendant.

Brooks, Pierce, McLendon, Humphrey & Leonard, LLP by Reid L. Phillips;
Hogan Lovells, LLP by Gardner F. Gillespie and Paul A. Werner, III for
Plaintiff.

Poyner & Spruill, LLP by David M. Barnes and Andrew H. Erteschik for
Defendant.

Joseph W. Eason for the North Carolina Association of Electric Cooperatives,
Amicus Curiae.

Murphy, Judge.

{1} The Court heard this matter on February 17, 2011, on the Motion of

Defendant Town of Landis, North Carolina (the “Town”), for partial summary

judgment pursuant to Rule 56 of the North Carolina Rules of Civil Procedure.

{2} The Town moved for summary judgment on Plaintiff Time Warner

Entertainment Advance/Newhouse Partnership’s (“TWEAN”) First Claim for Relief

for “refusal to negotiate” and Second Claim for Relief for “violation of

nondiscrimination requirement.”
{3} After considering the Complaint, the briefs and submissions of the

parties, and the arguments of counsel at the February 17, 2011 hearing, the Court

agrees with Defendant that there is no disputed issue of material fact relating to

Plaintiff’s First Claim for Relief for “refusal to negotiate” as required under Section

62-350 of the North Carolina General Statutes and Defendant is entitled to

summary judgment as a matter of law as to this claim only. Accordingly,

Defendant’s Motion for Partial Summary Judgment as to Plaintiff’s First Claim for

Relief is GRANTED. Plaintiff’s First Claim for Relief for “refusal to negotiate” is,

therefore, DISMISSED.

{4} The Court further concludes that there exists a disputed issue of

material fact as to whether Plaintiff violated the nondiscrimination requirement of

Section 62-350 of the North Carolina General Statutes. Accordingly, Defendant’s

Motion for Partial Summary Judgment as to Plaintiff’s Second Claim for Relief is

DENIED.

I.

FACTS

{5} Plaintiff TWEAN is a New York general partnership with its principal

place of business in New York, New York. TWEAN is a cable system operator that

provides internet, television and telephone services via cables attached to utility

poles owned by the Town, a municipal corporation, pursuant to a pole attachment

agreement under which the parties operated. Pursuant to this agreement, from
1979 to 2009, the Town permitted TWEAN to attach its cables to the Town’s utility

poles at the original rate of $3.00 per pole.

{6} Effective July 10, 2009, the North Carolina General Assembly enacted

Section 62-350 of the North Carolina General Statutes (the “Act”) which provides

that “a municipality . . . that owns or controls poles, ducts, and conduits shall allow

any communications service provider to utilize its poles, ducts, and conduits at just,

reasonable, and nondiscriminatory rates, terms and conditions adopted pursuant to

negotiated or adjudicated agreements.” N.C. Gen. Stat. § 62-350(a) (2010).

{7} The Act further provides a mechanism for resolving disputes between

communication service providers and municipal utilities over the use of poles, ducts

and conduits. First, the parties are required to negotiate concerning rates, terms

and conditions for the use of or attachment to the poles, ducts, or conduits. N.C.

Gen. Stat. § 62-350(b) (2010). If they are unable to reach an agreement within a 90-

day period or if either party believes in good faith that an impasse has been reached

before the expiration of the 90-day period, either party may bring an action in the

Business Court and the Court “shall resolve any dispute identified in the pleadings

consistent with the public interest and necessity so as to derive just and reasonable

rates, terms, and conditions.” N.C. Gen. Stat. § 62-350(c) (2010).

{8} In 2009, the Town proposed a new contract to cover TWEAN’s existing

and future cable attachments to the Town’s poles. The new contract would increase

TWEAN’s attachment rate from $3.00 per pole, per year, to more than $36.00 per
pole, per year with additional increases built in. TWEAN objected to the proposed

increase.

{9} After the Town and TWEAN were unable to resolve their differences

and reach an agreement regarding reasonable rates, terms and conditions, on April

19, 2010, Plaintiff filed its Notice of Designation and Complaint alleging three

separate claims for relief: (1) refusal to negotiate (N.C. Gen. Stat. § 62-350(b)); (2)

violation of the non-discrimination requirement (N.C. Gen. Stat. § 62-350(a)); and

(3) issues in dispute. Compl. ¶¶ 34-49.

{10} In addition to TWEAN, the Town also allows another local exchange

carrier – Windstream Communications (“Windstream”) – to attach to the Town’s

poles pursuant to a joint use agreement. This agreement provides for a reciprocal

arrangement wherein the Town attaches to poles owned by Windstream at no

charge and Windstream attaches to poles owned by the Town at a rate of $2.00 per

pole, per year.

{11} It is uncontroverted that TWEAN does not own any utility poles within

the jurisdiction of the Town and does not have a reciprocal arrangement with the

Town for the attachment of cables used to deliver electrical or communication

services to the public.

{12} The Town now seeks summary judgment on TWEAN’s claims for

“refusal to negotiate” and “violation of the Act’s nondiscrimination requirement.”

The Town concedes that the third claim “issues in dispute” is ripe for determination
by the Court at trial and is not included in its Motion for Partial Summary

Judgment.

{13} Included in the Town’s Motion for Partial Summary Judgment were

allegations supported by attached discovery documents, including deposition

testimony, that summarized the contacts, communications and efforts at

negotiations between the Town, its representatives, and TWEAN and its

representatives. TWEAN presented no documentary or testimonial evidence to

contradict the contents of those documents and the Court considers the contents to

be uncontroverted. The Court adopts many of those allegations and sets out salient

portions below that support the Court’s determination of these issues.

{14} On August 3, 2009, the Town’s Administrator, Douglas R. Linn

(“Linn”), wrote to TWEAN’s representative, Nestor M. Martin (“Martin”), regarding

a new pole attachment contract for 2010. See Def.’s Mot. Summ. J. Ex. A. The

letter enclosed a new proposed contract for TWEAN, and asked that any comments

be directed to the Town’s consultant, McGavran Engineering, P.C. Id. The letter

further advised that McGavran Engineering had completed a pole attachment

survey and offered to provide TWEAN with the results of that survey. Id. The letter

also referenced new state legislation regulating pole attachments and stated that

“we need to discuss this very soon,” and “we look forward to hearing from you on

this matter.” Id.

{15} On August 24, 2009, Martin wrote back to Linn on behalf of TWEAN.

Def.’s Mot. Summ. J. Ex. B. Martin indicated that TWEAN had not yet received the
pole attachment survey results from McGavran Engineering, and that it wanted to

review those results before responding to the August 3, 2009 letter. Id.

{16} On August 27, 2009, Edward McGavran, III (“McGavran”) of

McGavran Engineering wrote to TWEAN, providing TWEAN with “the complete

inventory/audit results for The Town.” Def.’s Mot. Summ. J. Ex. C. The letter

explained that TWEAN had more attachments on the Town’s poles than was

authorized, and that the Town would be charging TWEAN for “back rent” under the

then-existing 1979 rental rate. Id. The letter further explained that the Town

would take TWEAN’s National Electrical Safety Code (“NESC”) violations “very

seriously as a risk management problem,” but that the Town “will work with

[TWEAN] on getting these violations cleaned up, knowing they did not show up

there overnight.” Id. The letter concluded by stating that TWEAN should let

McGavran know if it had any questions, and that he would answer them “as soon

and as accurately as [he] can.” Id.

{17} On August 31, 2009, TWEAN responded to the Town’s August 3, 2009

letter. Def.’s Mot. Summ. J. Ex. D. In the first full paragraph of the letter, Martin

made reference to the newly-enacted provisions of Chapter 62 of the North Carolina

General Statutes, indicating that either party had the right “to take the matter to

the Business Court for resolution” if they were unable to agree on rates, terms and

conditions within 90 days. Id. Martin specifically requested that Linn “treat this

letter as a request under Section 62-55(b) to negotiate a new pole agreement, to

include a just, reasonable and non-discriminatory rate.” Id. He also stated that
TWEAN expected to have a redlined copy of the Town’s proposed pole attachment

agreement ready for review shortly and requested the Town to complete an

attached questionnaire and provide TWEAN with the Town’s most recent annual

financial statements related to its electric service. Id. TWEAN further indicated

that it would use this information to formulate a proposal regarding a reasonable

attachment rate. Id. The letter pointed out that McGavran Engineering’s pole

attachment audit did not include any specifics as to which of TWEAN’s cable

attachments on the Town’s poles were in violation of their agreement. Id. The

letter concluded by reminding the Town that the parties would “have an

opportunity to seek the assistance of the North Carolina Business Court if [they

were] unable to negotiate a mutually satisfactory agreement.” Id.

{18} On September 10, 2009, TWEAN sent the Town a redlined copy of the

Town’s proposed pole attachment agreement. Def.’s Mot. Summ. J. Ex. E. Despite

the Town’s instruction that TWEAN deal directly with its consultant, McGavran,

TWEAN directed the redlined proposed agreement to Linn, the Town

Administrator, and did not copy McGavran. Id.

{19} TWEAN scheduled a face-to-face meeting on September 21, 2009 with

representatives of the Town concerning the proposed pole attachment agreement.

See Def.’s Mot. Summ. J. Ex. F, Tanck Dep. 21, Sept. 17, 2010. The Town was

represented by Linn and McGavran, and TWEAN was represented by its Director of

Government Relations for the Charlotte Region, Michael Tanck. Id. The meeting
lasted approximately 45 minutes and consisted primarily of discussions concerning

the pole attachment agreement. Id. at 26:7-10.

{20} Following the face-to-face meeting between the Town and TWEAN,

Tanck sent a letter on September 22, 2009 to the Town thanking the Town for the

time it took for the meeting. Def.’s Mot. Summ. J. Ex. G.

{21} On October 12, 2009, McGavran e-mailed Martin asking for a copy of

the redlined agreement, and again reminded Martin that “we will be handling this

issue for the Town.” Def.’s Mot. Summ. J. Ex. H.

{22} Four days later, Martin responded by providing McGavran a copy of

the redlined proposed agreement in pdf format. Id. Thereafter, McGavran e-

mailed Martin to request a Word version of the redlined proposed agreement, which

Martin sent to McGavran. Id.

{23} On November 12, 2009, Martin e-mailed McGavran to inquire as to

whether McGavran had an opportunity to review the redlined proposed agreement.

Id. That same day, McGavran e-mailed Martin and explained that “we have some

very serious concerns regarding those redlines.” Id. McGavran pointed out that a

primary concern was “the attempt by [TWEAN] to limit the [T]own to having only

direct employees of the [T]own deal with [TWEAN].” Id. McGavran explained that

the Town would determine with whom TWEAN dealt on the Town’s behalf and

further pointed out that there was no legal authority for requiring direct employees

to deal with attaching parties. Id.
{24} Martin responded to McGavran’s e-mail by stating, “I understand your

position on that issue. We will deal with the Town’s suggested revisions in the

language when we see them on this and other issues.” Id. Martin reiterated his

request for cost information because it was “important to our negotiating a

reasonable rate.” Id.

{25} On November 13, 2009, McGavran responded, “I am fine with most of

this and will get back with you. Making a push with Gastonia and Tideland at the

moment so if you could give me some type of response (knowing your schedule is

crowded these days). Just give the best you can as soon as you can. We’ll go from

there.” Id.

{26} On December 4, 2009, Martin e-mailed McGavran regarding the

proposed pole attachment redlined agreement and the responses to the pole

attachment questionnaire that TWEAN submitted. Def.’s Mot. Summ. J. Ex. I.

McGavran responded, “I gave you some comments regarding the contract but will

get a few more together for you. We still await Gastonia and Tideland EMC from

you as well.” Id.

{27} On January 5, 2010, TWEAN’s counsel, Gardner F. Gillespie, sent a

letter to Linn stating the following: “[TWEAN] believes an impasse has been

reached in its pole attachment license and rate negotiations with the Town of

Landis. In an effort to resolve the outstanding issues in our negotiation of such

agreement, [TWEAN] would like to commence mediation subject to the Statewide
Mediated Settlement Conferences in Superior Court Civil Actions, and pursuant to

North Carolina Law.” Def.’s Mot. Summ. J. Ex. J.

{28} The Town did not respond directly to TWEAN’s January 5, 2010 letter,

but e-mailed TWEAN its “Landis Attachment Rate Worksheets A & B” on February

26, 2010, which contained detailed information from McGavran Engineering

regarding the inputs used to determine the pole attachment rate, as well as

financial information from the Town. Def.’s Mot. Summ. J. Ex. K.

{29} In a letter dated March 4, 2010, Martin wrote to Linn noting that the

Landis Attachment Rate Worksheets “lacked key information” requested by

TWEAN concerning the “net cost” of the Town’s poles, and that the Town failed to

provide the annual financial statements related to its electrical service. Def.’s Mot.

Summ. J. Ex. L. Martin claimed that TWEAN needed this information to

determine what might be a just and reasonable pole attachment rate. Id.

{30} In his deposition testimony on September 16, 2010, Martin made clear

that there were two main differences between the agreement proposed by the Town

and the redlined agreement proposed by TWEAN: (1) the definition of “attachment”;

and (2) TWEAN proposed to negotiate the rates through a course of negotiations as

opposed to accepting the rates that were outlined in the initial contract. Def.’s Mot.

Summ. J. Ex. M, Martin Dep. 148: 1-9, Sept. 16, 2010. Martin acknowledged,

however, that TWEAN never proposed to the Town an alternative rate. Id. at

148:10-11.
{31} On January 21, 2010, TWEAN, in internal documents, began referring

to the “Landis complaint” and as early as February 17, 2010 drafted a complaint “re

TWEAN v. Town of Landis.” Def.’s Mot. Summ. J. Ex. T.

{32} On March 31, 2010, Martin executed the Verification for the Complaint

that was filed by TWEAN on April 19, 2010. See Def.’s Mot. Summ. J. Ex. N.

II.

LEGAL STANDARD

{33} A trial court must grant summary judgment “when there is no genuine

issue as to any material fact and any party is entitled to a judgment as a matter of

law. Wal-Mart Stores East, Inc. v. Hinton, 197 N.C. App. 30, 37, 676 S.E.2d 634,

641 (2009). “Summary judgment is appropriate if . . . the facts are not disputed and

only a question of law remains . . . .” Id.

III.

ANALYSIS

First Claim: Refusal to Negotiate

{34} In its First Claim for Relief, TWEAN alleges that the Town has

violated section 62-350(b) of the North Carolina General Statutes “by refusing to

negotiate the rate, terms, and conditions of a proposed pole attachment agreement.”

Compl. ¶ 36.

{35} As the parties agree on the material facts of the dispute regarding the

First Claim for “refusal to negotiate,” and disagree only as to what constitutes
“negotiation” as a matter of law, a partial summary disposition of the claim is

proper and appropriate.

{36} This is the first case arising under Section 62-350 of the North

Carolina General Statutes for a court to consider what constitutes a “refusal to

negotiate” concerning the rates, terms, and conditions for the continued use of or

attachment to poles or conduits owned or controlled by one of the parties to an

attachment agreement.

{37} Although no North Carolina court has ever addressed the issue in the

context of this statute, the North Carolina Supreme Court has considered the

question of refusal to negotiate in good faith in the context of a condemnation

proceeding. See Kings Mountain v. Cline, 281 N.C. 269, 188 S.E.2d 284 (1972).

{38} In that case, Kings Mountain (the “City”) sought to purchase the

defendants’ real property in order to construct a municipal reservoir. Id. The City

had the defendants’ land appraised and subsequently made the defendants an offer

to purchase the land for $44,562.60. Id. Defendants refused the City’s offer to

purchase a fee interest in the land and responded that the defendants would only

grant the City an easement over the land. Id. The parties’ disagreement over the

type of interest to be conveyed thwarted further negotiation. Id. The City made the

defendants a firm offer of $44,562.60 for the land in fee, which the defendants again

refused. Id. Thereafter, the City initiated condemnation proceedings and the

Superior Court held that the City was “entitled to acquire in fee the land described

in the petition for such sum of money to be determined and assessed by a jury.” Id.
The defendants appealed claiming that the condemnation proceeding should have

been dismissed because the City failed to negotiate in good faith before instituting

it. Id. The Supreme Court affirmed the decision and concluded that the evidence in

the record supported the trial court’s findings and that the findings supported each

judgment. Id. at 274, 188 S.E.2d at 287.

{39} This Court is not persuaded, however, by the holding or dicta in Cline

as that court did not squarely address what constitutes “good faith negotiation” as a

matter of law. The court merely held that, upon the evidence presented, the

Superior Court made findings that supported the order entered. Id.

{40} Given the absence of case law dealing squarely with the issue

discussed herein, the Court has turned to the area of contract law, specifically

agreements to negotiate, for direction.

{41} In construing the meaning of applicable terms used in a statute, the

Court applies a “plain meaning” standard. “Statutes should be read and understood

according to the natural and most obvious import of the language without resorting

to subtle and forced construction for the purpose of either limiting or extending

their operation.” Nance v. Southern Ry., 149 N.C. 366, 372, 63 S.E. 116, 118-19

(1908).

{42} “Negotiation” as defined in Black’s Law Dictionary is “a consensual

bargaining process in which the parties attempt to reach an agreement on a

disputed or potentially disputed matter.” Black’s Law Dictionary 1064 (8th ed.

2004).
{43} This Court has been unable to find any legal authority to support the

proposition that the duty to negotiate imposes an obligation on a party to actually

reach an agreement, and concludes as a matter of law that no such duty exists

within this jurisdiction.

{44} Ordinarily when parties to an agreement undertake to negotiate, they

implicitly do so under a general obligation of fair dealings with each other.

Although Section 62-350(b) of the North Carolina General Statutes imposes an

affirmative duty upon a municipality to “negotiate concerning the rates, terms, and

conditions for the use of or attachment to poles…,” the statute does not contain

express language that such negotiation must be “in good faith,” nor does it expressly

impose an obligation of “fair dealing.” An obligation to negotiate, however, absent

an attending duty to do so “in good faith,” would render the obligation meaningless.

{45} “Good faith” is defined in Black’s Law Dictionary as “a state of mind

consisting in (1) honesty in belief or purpose, (2) faithfulness to one’s duty or

obligation, (3) observance of reasonable commercial standards of fair dealing in a

given trade or business, or (4) absence of intent to defraud or to seek unconscionable

advantage.” Black’s Law Dictionary 713 (8th ed. 2004).

{46} For the purpose of resolving the issue presented herein, the Court

makes no distinction in meaning between the terms “good faith” and “fair dealing.”

{47} In determining whether the Town refused to negotiate (in good faith)

with TWEAN, the Court looks to the behavior of the Town vis-à-vis TWEAN and

the circumstances surrounding the course of their interactions.
{48} A leading authority on Contract law, E. Allan Farnsworth, directs

courts to look for “subtler manifestations [of bad faith] in contract negotiations, such

as refusing to disclose information relevant to the negotiations, rejecting routine

provisions, shifting bargaining positions when agreement is near, engaging in

dilatory tactics, or withholding agreement on trivial matters.” See, E. Allan

Farnsworth, Farnsworth on Contracts § 3.26(c) (3d ed. 2004).

{49} Farnsworth outlines seven practices that may constitute bad faith in

contract negotiations: (1) refusal to negotiate; (2) improper tactics; (3) unreasonable

proposals; (4) non-disclosure; (5) negotiations with others; (6) reneging; and (7)

breaking off negotiations. Id. at § 3.26(c).

{50} The absence or presence of one or more of these practices by the Town

herein is instructive to the Court in determining whether the Town negotiated in

good faith with TWEAN.

{51} TWEAN asserts that the Town gave it an ultimatum (take-it-or-leave-

it offer) and cites case law from other jurisdictions that seems to suggest that such a

position does not constitute good-faith negotiation. See Pl’s Br. in Opp’n. to Def.’s

Mot. Summ. J. 14-16. In the context of the cases Plaintiff presents in its brief, the

Court might be persuaded by Plaintiff’s argument if the facts of this particular case

supported such a simplistic view. This Court is, however, unconvinced by Plaintiff’s

arguments.

{52} The North Carolina Court of Appeals addressed the question of

whether a condemning authority negotiated in good faith, as required by statute, in
a condemnation proceeding. See Greensboro-High Point Airport, Auth. v. Irvin, 36

N.C. App. 662, 245 S.E.2d 390 (1978). The Court of Appeals found the following

language from an opinion by the Supreme Court of Indiana to be pertinent:

We do not construe the language [of the statute pertaining to
negotiations] to mean that the condemning authorities must first make
an offer of a figure below that which they believe to be the maximum
they could justify paying for the property, then through a series of
negotiations bargain with the property owner until some figure within
what the Commission might consider to be reasonable was agreed
upon. In fact, it appears to be much more honest and forthright on the
part of the condemning authority to come forth in their initial offer
with the highest price they feel they could reasonably justify paying for
the property. The fact that a property owner might place a higher
value on his real estate and attempt to induce the condemning
authority to pay a higher price does not bind the condemning authority
to raise its figure.

Id. at 671, 245 S.E.2d at 395-96 (citing Murray v. City of Richmond, 276 N.E.2d 519,

522 (Ind. 1971)).

{53} The facts of this case clearly demonstrate that during the course of

several months TWEAN discussed the terms of a new agreement with the Town;

the parties met face-to-face to facilitate further discussions; TWEAN sent to the

Town a redlined version of the proposed pole attachment agreement; and the Town

provided to TWEAN some information about the pole attachment rates and some of

its financial information. It appears that TWEAN, after months of discussion with

the Town and its representatives, believed that an impasse had been reached in its

pole attachment license and rate negotiations with the Town and confirmed that

belief in a letter from TWEAN’s legal counsel to Plaintiff’s Town Administrator.
{54} There is no credible evidence before the Court that the Town, or any of

its representatives, acted in bad faith, i.e., engaged in improper tactics, offered

unreasonable proposals to TWEAN, failed to disclose relevant information that was

critical to the continuation of negotiations, reneged on any representations to

TWEAN, or abruptly broke off negotiations.

{55} Section 62-350(c) of the North Carolina General Statutes makes clear

that either party to an attachment agreement has the option of bringing an action

in Business Court if either party believes in good faith that an impasse has been

reached.

{56} The parties deliberated, discussed and conferred both in writing and in

person in an attempt to reach an agreement. It was TWEAN who represented that

an impasse had been reached and communicated the same in writing to the Town.

At that point, either party had the right to exercise its option of bringing an action

in Business Court to resolve their differences.

{57} Upon the particular facts of this case, the Court concludes as a matter

of law that the Town did not refuse to negotiate with TWEAN; that, in fact, the

Town negotiated in good faith with TWEAN in attempting to reach an agreement.

{58} Therefore, the Court GRANTS summary judgment in favor of the

Town on Plaintiff’s First Claim for Relief for “refusal to negotiate.”
Second Claim: Violation of Nondiscrimination Provision

{59} In its Second Claim for Relief, TWEAN alleges that the Town “has

permitted attachments to its utility poles on terms and conditions more favorable

than the terms proposed to Plaintiff.” Compl. ¶ 40.

{60} It is axiomatic that a plaintiff be “similarly situated” with the entity

that the plaintiff contends has received favorable treatment in order to prove a

violation of the nondiscrimination requirement of section 62-350(a) of the North

Carolina General Statutes. See State ex rel. Util. Comm’n v. Tidewater Natural

Gas Co., 259 N.C. 558, 565, 131 S.E.2d 303, 308 (1963).

{61} It is undisputed that the only other entity besides TWEAN that the

Town allows to attach to its poles is Windstream.

{62} Whether Windstream and TWEAN are similarly situated for purposes

of addressing the nondiscrimination provision of the Act involves a question of fact

and not of law.

{63} The parties are clearly in dispute regarding the facts related to this

issue. As such, summary judgment is not appropriate.

{64} Therefore, the Court DENIES summary judgment on Plaintiff’s Second

Claim for Relief for “violation of the nondiscrimination requirement.”

IV.

CONCLUSION

{65} Based upon the foregoing findings of fact, the Court concludes as a

matter of law that there exists no genuine issue as to any material fact regarding
the Plaintiff’s First Claim for Relief for “refusal to negotiate” and Defendant is

entitled to summary judgment as a matter of law as to this claim only.

{66} It is, therefore, ORDERED that Defendant’s Motion for Partial

Summary Judgment is GRANTED as to the First Claim for Relief and DENIED as

to the Second Claim for Relief. Plaintiff’s First Claim for Relief for “refusal to

negotiate” is, therefore, DISMISSED.

This the 30th day of June, 2011.