AS ABELL COMPANY v. Baltimore Typographical Union No. 12

• Decision Date: 04 November 1964
• Docket Number: No. 9563.,9563.
• Citation: 338 F.2d 190
• Parties: The A. S. ABELL COMPANY, a body corporate, The Baltimore News-American, Division of Hearst Consolidated Publications, Inc., a body corporate, and The Daily Record Company, a body corporate, Appellees, v. BALTIMORE TYPOGRAPHICAL UNION NO. 12, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

338 F.2d 190 (1964)

The A. S. ABELL COMPANY, a body corporate, The Baltimore News-American, Division of Hearst Consolidated Publications, Inc., a body corporate, and The Daily Record Company, a body corporate, Appellees, v. BALTIMORE TYPOGRAPHICAL UNION NO. 12, Appellant.

No. 9563.

United States Court of Appeals Fourth Circuit.

Argued September 21, 1964.

Decided November 4, 1964.

Bernard W. Rubenstein, Baltimore, Md. (Jacob J. Edelman, Baltimore, Md., on brief), for appellant.

James P. Garland, Baltimore, Md. (William D. Macmillan, Earle K. Shawe, William J. Rosenthal, James J. Doyle, Jr., and Arthur U. Hooper, Baltimore, Md., on brief), for appellees.

Before SOBELOFF, Chief Judge, BRYAN, Circuit Judge, and SIMONS, District Judge.

SOBELOFF, Chief Judge:

Publishers of three daily newspapers in Baltimore — A. S. Abell Company (publishers of the Sunpapers), the Baltimore News-American and the Daily Record — entered into a collective bargaining agreement with the Baltimore Typographical Union No. 12, representing certain employees in the composing rooms of the respective publishers. The agreement was executed on August 14, 1962, and will expire on December 31, 1964. A dispute having arisen between the parties in April, 1964, the publishers brought an action against the union under section 301 of the Labor Management Relations Act, 61 Stat. 156 (1947) 29 U.S.C.A. § 185 (1956), to obtain enforcement of the agreement's grievance procedures and arbitration provisions. The District Court granted plaintiff's motion for judgment on the pleadings, ordered the union to arbitrate, and declined to stay its order pending appeal.

The dispute arose in the following circumstances. One of the publishers, A. S. Abell Company, has in its composing room twelve line-casting machines which are operated by perforated tape produced manually by teletypesetter keyboard tape-perforators. Under present procedures the employees operating the tape perforating units must perform an additional operation known as "justification and hyphenation," consisting of calculating and measuring the spacing of anticipated type characters so that the right hand edges of all columns of type will be uniformly even. All type for Abell's newspapers is set by this process, with the exception that its employees do not prepare tapes containing the financial market quotations and major league box scores. These are received, already justified and hyphenated, over wires of the Associated Press and United Press International.

Abell has recently acquired an electronic computer known as the RCA Newscom, which justifies and hyphenates tape. It is planned that the operators of the tape-perforators will prepare unjustified and unhyphenated tape to be fed to the computer. The computer will then perform the necessary calculations and make a new tape, perforated in such manner that when it is fed to the line-casting machine, that machine will produce hyphenated and justified columns of type.

Upon being notified of Abell's intention to install and operate the computer in its composing room, the union asserted that under the terms of the collective bargaining agreement, specifically the second paragraph of section 3(k) quoted below, the publishers could not install such computer without entering into negotiations. The union has maintained throughout that the preparation of unjustified and unhyphenated tape by its members would constitute "the use of tape not authorized by * * * this agreement * * *" and hence made by section 3(k) a matter for negotiation and not subject to arbitration.

With equal firmness, Abell, joined by the other publishers, has insisted that it is not seeking to "extend the use of tape not authorized by * * * the agreement * * *," since it is not attempting to introduce tape similar to that sent over the Associated Press and United Press International wires, on which financial market quotations and baseball box scores are received. The employers therefore argue that section 3(k) does not exclude the dispute from arbitration under the agreement.

The following are the pertinent provisions of the collective bargaining agreement:

"Section 3. In the event any Publisher shall introduce the Teletypesetter Keyboard tape-perforator and operating units as a means of producing type in their composing rooms the following shall apply:

* * * * * *

"(k) Teletypesetter tape consisting of financial market quotations and Major League baseball box scores received over the regularly leased wires of the Associated Press or the United Press International may be used. All other teletypsetter tape shall be perforated by employees covered by this agreement. * * *

"In the event the Publishers, during the life of this agreement, desire to extend the use of tape not authorized by this agreement, they shall notify the Union. Upon such notification the parties shall, without undue delay, enter into negotiations for the purpose of arriving at a mutual agreement concerning the matter, but disagreement thereon shall not be subject to the Code of Procedure or arbitration.

"Section 5. This contract alone shall govern relations between the parties on all subjects concerning which any provision is made in this contract, and any dispute involving any such subjects shall be determined in accordance with the Code of Procedure.

"Section 8. * * * Both parties agree that whenever any differences of opinion as to the rights of either Union and Publishers under the Agreement shall arise, or whenever any dispute as to the construction of the contract or any of its provisions takes place, such difference or dispute shall be promptly resolved in the manner provided in this contract * * *."

Sections 33-39, entitled "Code of Procedure," set up the steps to be taken in processing grievances and selecting a Board of Arbitration. Section 39 refers to arbitration of "differences in the interpretation and enforcement of the terms of this contract, including the question of whether, under Section 5, the disputed issue is covered by the terms of this contract, and including the interpretation of all language contained in this contract." (Emphasis added.)

The District Court viewed the controversy as one solely of interpretation of the collective bargaining agreement. Nevertheless, at the hearing on the motion for judgment on the pleadings the court permitted the union to make a proffer of certain evidence which it would introduce should the case be decided on evidence in addition to the pleadings. The proffer pertained primarily to negotiations between the parties, particularly discussions leading to the drafting of section 3(k). The District Court rejected the proffer, stating that its decision would not be altered thereby, and on this ground denied the union the opportunity it sought to present such evidence at a trial. The court declared that upon consideration of the provisions of the agreement it was unable to say with positive assurance either that the controversy was covered by the arbitration clause or that it was clearly excluded therefrom. Therefore, the court concluded, the contract required a decision of this issue by the Board of Arbitration and not the court.

The union concedes that the District Court properly applied the appropriate legal principles in ruling on the motion. But it seeks reversal of the order on the sole ground that the District Court erred in declining to consider the proffered evidence of bargaining history. It thus states the question to be decided on appeal: "Did the District Court err in not considering evidence of bargaining history in order to decide whether an issue was excluded from arbitration under a collective bargaining contract?"

Abell, on the other hand, argues that both procedurally and as a matter of substantive law the exclusion of the testimony was proper and that the judgment on the pleadings and the order to arbitrate were proper. First, it says that since the case was heard on motion for judgment on the pleadings pursuant to Rule 12(c), Federal Rules of Civil Procedure, and since the pleadings raised no issue of fact, it was proper to enter judgment as a matter of law, without consideration of evidence of bargaining history. It further says that because of doubts as to the meaning of the language used in the collective bargaining agreement, the Board of Arbitration and not the court should decide the question of arbitrability.

On a motion for judgment on the pleadings made pursuant to Rule 12(c), only the pleadings are considered, and thus the District Court, in considering only the complaint and answer and refusing to admit testimony of bargaining history, properly observed the scope of the motion before it.

Rule 12(c) also provides that:

"* * * If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." (Emphasis added.)

Under a fair reading of this provision, admission of the testimony of bargaining history was...