Chicago Newspaper Publishers' Ass'n v. Chicago Web Printing Pressmen's Union No. 7

• Decision Date: 08 June 1987
• Docket Number: 85-2492,Nos. 85-2464,s. 85-2464
• Citation: 821 F.2d 390
• Parties: 125 L.R.R.M. (BNA) 2617, 56 USLW 2012, 106 Lab.Cas. P 12,395, 7 Fed.R.Serv.3d 1412 CHICAGO NEWSPAPER PUBLISHERS' ASSOCIATION, Plaintiff-Appellant, Cross-Appellee, v. CHICAGO WEB PRINTING PRESSMEN'S UNION NO. 7, Defendant-Appellee, Cross- Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 390

821 F.2d 390

125 L.R.R.M. (BNA) 2617, 56 USLW 2012,

106 Lab.Cas. P 12,395,

7 Fed.R.Serv.3d 1412

CHICAGO NEWSPAPER PUBLISHERS' ASSOCIATION, Plaintiff-Appellant, Cross-Appellee, v. CHICAGO WEB PRINTING PRESSMEN'S UNION NO. 7,

Defendant-Appellee, Cross- Appellant.

Nos. 85-2464, 85-2492.

United States Court of Appeals, Seventh Circuit.

Argued April 17, 1987.

Decided June 1, 1987.

As Amended June 8, 1987.

L. Michael Zinser, King, Ballow & Little, Ltd., Nashville, Ind., for plaintiff-appellant, cross-appellee.

Sheldon M. Charone, Carmell, Charone, Widmer & Mathews, Ltd., Chicago, Ill., for defendant-appellee, cross-appellant.

Before CUDAHY and COFFEY, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

COFFEY, Circuit Judge.

Plaintiff-appellant Chicago Newspaper Publishers' Association appeals the order of the district court enforcing an arbitrator's decision interpreting the collective bargaining agreement between the respective parties. We affirm.

I

The appellant, Chicago Newspaper Publishers' Association ("CNPA") represents the Chicago Tribune in labor negotiations while the appellee Chicago Web Printing Pressmen's Union No. 7 ("Union") represents the journeymen pressroom employees employed by the Chicago Tribune. Journeymen pressmen are employees who have worked for a sufficient period of time (usually four years) as apprentice pressmen and upon the successful completion of their apprenticeship are advanced to journeyman status. Over the past 40 years, journeymen pressmen working for the Tribune were hired from the Union's call room. ¹ These journeymen obtained their positions with the Tribune on the basis of their union call room seniority.

On February 29, 1980, the CNPA and the Union entered into a collective bargaining agreement retroactively effective from April 3, 1974 and continuing in effect until April 3, 1985. The agreement stated in section 23 that "[i]t is understood that apprentices will be graduated to journeymen as their term of apprenticeship expires, except by mutual agreement." ² The term of apprenticeship was four years. Section 7 of the agreement gave management the exclusive authority and control "of each pressroom and all its work and all its employees." ³ Section 4 provided that the Union would "furnish as many competent skilled journeymen as are called for by the Employer for the operation of its presses in the respective pressrooms." ⁴ Section 5 obligated the "Employer" to give preference in hiring to "persons who have worked as journeymen pressmen in the pressrooms of the Employer within the preceding two-year period" ⁵ and in section 43 of the agreement the Employer and the Union "recognize[d] the need for the continuing existence of the call room." The agreement also provided for an arbitration procedure through which disagreements concerning the interpretation of the contract would be resolved. ⁶ Finally, section 46 of the agreement stated that the written "contract ... shall constitute the entire agreement between the parties."

In October 1983, the Tribune requested that the Union refer twenty journeymen from its call room for positions in its pressroom. The Union refused to refer the journeymen unless the company would agree to give the journeymen lifetime job guarantees. After negotiating with the Union over the referrals, the Tribune promoted nineteen apprentice pressmen in June, 1984 to fill the vacant journeymen positions and thereby bypassed the Union's call room procedure. The Union maintains that it was ready to agree to supply the journeymen to the Tribune without lifetime job guarantees immediately prior to the June 1984 promotions. The Union claimed that the Tribune's action violated the collective bargaining agreement and sought arbitration. The arbitrator held two days of hearings in November, 1984 and issued an award and ruled in the Union's favor on March 27, 1985.

In his decision, the arbitrator rejected the CNPA's argument that section 46 of the agreement precluded him from considering past practice in determining whether the Tribune had violated the agreement. The arbitrator acknowledged that he could not modify the contract under section 46 but that the agreement did not contain a provision that prohibited the arbitrator from considering the past practices of the parties when construing the contract. The arbitrator then discussed sections 4, 5, and 43 of the agreement and concluded that those provisions mandated that the Tribune use the Union's call room when hiring journeymen pressmen.

The CNPA initiated this suit in the district court under section 301 of the Taft-Hartley Act, 29 U.S.C. Sec. 185, to vacate and set aside the arbitration award. The court granted summary judgment in favor of the Union and ordered enforcement of the arbitration award.

II

"Ever since federal courts began enforcing arbitration awards, the scope of judicial review of the award has been extremely narrow." Ethyl Corporation v. United Steelworkers of America, AFL-CIO-CLC, 768 F.2d 180, 183 (7th Cir.1985). In United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960), the United States Supreme Court stated:

"When an arbitrator is commissioned to interpret and apply the collective bargaining agreement, he is to bring his informed judgment to bear in order to reach a fair solution of a problem. This is especially true when it comes to formulating remedies. There the need is for flexibility in meeting a wide variety of situations. The draftsmen may never have thought of what specific remedy should be awarded to meet a particular contingency. Nevertheless, an arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator's words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award."

Id. at 597, 80 S.Ct. at 1361. In Randall v. Lodge No. 1076, International Association of Machinists and Aerospace-Workers, AFL-CIO, 648 F.2d 462, 465 (7th Cir.1981), we stated that "the arbitrator's decision should not be upset unless it is arbitrary or capricious or fails to draw its essence from the collective bargaining contract because it exceeds the confines of interpreting and applying the contract." In Amoco Oil Company v. Oil, Chemical and Atomic Workers International Union, Local 7-1, Inc., 548 F.2d 1288 (7th Cir.1977), this court stated that the scope of our review of an arbitrator's award, "is confined to the narrow questions of whether the award 'draws its essence from the collective bargaining agreement' and whether 'the arbitrator's words manifest an infidelity to this obligation.' " Id. at 1293-94 (quoting United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960)). We further stated:

"An arbitrator's award does 'draw its essence from the collective bargaining agreement' so long as the interpretation can in some rational manner be derived from the agreement, 'viewed in the light of its language, its context, and any other indicia of the parties' intention; only where there is a manifest disregard of the agreement, totally unsupported by principles of contract construction and the law of the shop, may a reviewing court disturb the award.' "

Id. at 1294 (quoting Ludwig Honold Manufacturing Co. v. Fletcher, 405 F.2d 1123, 1128 (3d Cir.1969)). See also Milwaukee Typographical Union No. 23 v. Newspapers, Inc., 639 F.2d 386 (7th Cir.1981) (reversing district court and denying enforcement of an arbitration award); F.W. Woolworth Co. v. Miscellaneous Warehousemen's Union, Local No. 781, 629 F.2d 1204, 1214 (7th Cir.1980) (reversing district court and enforcing arbitration award). We note that courts have had difficulty applying the standard, enunciated in Enterprise Wheel, that an arbitration award must be enforced if it "draws its essence from the collective bargaining agreement." Enterprise Wheel, 363 U.S. at 597, 80 S.Ct. at 1361. In Ethyl Corporation v. United Steelworkers of America, AFL-CIO-CLC, 768 F.2d 180 (7th Cir.1985), we stated:

"The problem with the expression 'draws its essence from the collective bargaining agreement,' is that it invites the kind of error that the district judge fell into in this case, of setting aside an arbitration award because the judge is not satisfied that the award has a basis in a particular provision of the contract.

Whenever an arbitrator misreads a contract, it is possible to say that his award fails to draw its essence from the contract; that the ground of the award is not the contract but the arbitrator's misreading. But so long as the award is based on the arbitrator's interpretation--unsound though it may be--of the contract, it draws its essence from the contract."

Id. at 184. See also Super Tire Engineering Co. v. Teamsters Local Union No. 676, 721 F.2d 121, 122-24 (3d Cir.1983) (court enforces award and gives deference to arbitrator despite the fact that the arbitrator's interpretation of the contract was questionable). We further stated in Ethyl Corporation that "[i]t is only when the arbitrator must have based his award on some body of thought, or feeling, or policy, or law that is outside the contract ... that the award can be said not to 'draw its essence from the collective bargaining agreement.' " 768 F.2d at 185 (quoting Enterprise Wheel & Car, 363 U.S. at 597, 80 S.Ct. at 1361). See also Jones Dairy Farm v. Local No. P-1236, United Food Workers, 760 F.2d 173 (7th Cir.1984) (arbitrator's award enforced where arbitrator relied on material incorporated by reference into the agreement in rendering award); Young Radiator Company v. International Union, U.A.W., 734 F.2d 321 (...