Baltimore Typographical Union v. AS Abell Co.

• Decision Date: 28 October 1977
• Docket Number: Civ. No. K-75-726.
• Citation: 441 F. Supp. 596
• Parties: BALTIMORE TYPOGRAPHICAL UNION NO. 12 v. The A. S. ABELL COMPANY and Washington-Baltimore Newspaper Guild Local 35.
• Court: U.S. District Court — District of Maryland

441 F. Supp. 596

BALTIMORE TYPOGRAPHICAL UNION NO. 12 v. The A. S. ABELL COMPANY and Washington-Baltimore Newspaper Guild Local 35.

Civ. No. K-75-726.

United States District Court, D. Maryland.

October 28, 1977.

Bernard W. Rubenstein, Baltimore, Md., for plaintiff.

James P. Garland, and Richard T. Sampson, Baltimore, Md., for The A. S. Abell Co., defendant.

Robert E. Paul, Arlington, Va., and Cosimo C. Abato, Baltimore, Md., for Washington-Baltimore Newspaper Guild, Local 35, defendant.

FRANK A. KAUFMAN, District Judge.

Proceeding under Section 301 of the Labor-Management Relations Act, 29 U.S.C. § 185, plaintiff Baltimore Typographical Union No. 12 (Printers) asks this Court to order defendants The A. S. Abell Company (Company) and Washington-Baltimore Newspaper Guild Local 35 (Guild), to submit certain grievances to binding tripartite arbitration.¹

FACTS

The facts in this case are not in dispute. The Company is a Maryland Corporation with its principal place of business in Baltimore, where it is engaged in publishing three newspapers: The Sun (daily morning paper), The Evening Sun (daily evening paper), and The Sunday Sun. Among the various labor unions recognized by the Company as bargaining representatives for various units of its employees are the Printers and the Guild. The within dispute centers around what may appropriately be described as revolutionary changes made by the Company in the manner in which it produces its newspapers. Prior to 1974, the news and editorial departments of the Company produced news copy on typewriters. Editors then edited the copy with pencils, pens or typewriters and gave that edited copy to copy persons who handcarried it to the composing room. The composing room then distributed that copy to employees operating linotype machines or paper tape punch machines, both of which produced "hot metal" type used in printing the newspaper. In 1974, the Company introduced a computerized method of operation utilizing several Harris 2500 Computers, and completely eliminated its former "hot metal" operation.²

As part of the radical change in operations accompanying the introduction of the Production Systems, the Company developed an inhouse maintenance capability to help insure effective operation of the computers. The employees involved in inhouse maintenance are known as the "Production Systems Groups," which consists of a Production Systems Manager, a Senior Assistant Production Manager and three Assistant Production Managers. Both the Guild and the Printers claim jurisdiction over those employees by virtue of the respective separate labor-management agreements between them and the Company.³ Both contracts

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contain binding arbitration provisions.⁴

In 1974 or early 1975 the Guild filed a grievance concerning jurisdiction over the Production Systems Group. That grievance was submitted to arbitration.^4A The Printers subsequently requested the Company and the Guild to terminate their ongoing arbitration and to submit to binding tripartite arbitration. The Guild expressed its willingness so to do, but the Company refused and asserted that the dispute was properly within the jurisdiction of the NLRB. The Company continues to resist herein the quest by both unions for binding tripartite arbitration of their substantive differences as set forth supra.

ARBITRABILITY

It is essential that any forum which undertakes to decide the merits of the underlying dispute between the parties have jurisdiction over all three parties; otherwise, no fair and final resolution can be achieved.

In Transportation-Communication Employees Union v. Union Pac. R.R., 385 U.S. 157, 87 S.Ct. 369, 17 L.Ed.2d 264 (1966), a dispute existed among two unions and an employer growing out of "technological progress which telescoped two work stations into one."⁵ The Supreme Court held that the Railroad Adjustment Board, a statutorily created arbitration board having jurisdiction over the parties and exclusive jurisdiction over the subject matter of their dispute, was required to afford both unions an opportunity to be heard; and, whether or not both unions actually chose to participate, to resolve the entire dispute upon consideration of all collective bargaining agreements involved.

In this case, the NLRB is the only Governmental agency which conceivably has power to resolve the tripartite dispute, and it has declined to decide that dispute on its merits. None of the parties hereto have sought any order from this Court or any Court to require the NLRB to take any action other than it has taken to date.⁶ Thus, the issues in this case are different from those present in Transportation-Communications Employees, in which there was a statutory basis for compelling tripartite arbitration. Herein the source of any obligation of the Company to submit to tripartite arbitration must be found, if it exists, within the framework of the separate collective bargaining agreements entered into by the Company with the two Unions. In reading and construing those agreements, it is important to keep in mind the remarks of Mr. Justice Black in Transportation-Communications Employees 385 U.S. supra at 160-61, 87 S.Ct. at 371:

A collective bargaining agreement is not an ordinary contract for the purchase of goods and services, nor is it governed by the same old common-law concepts which control such private contracts. * * * "It is a generalized code to govern a myriad of cases which the draftsmen cannot wholly anticipate. . . . The collective agreement covers the whole employment relationship. It calls into being a new common law — the common law of a particular industry or of a particular plant." United Steelworkers of America v. Warrior & Gulf Nav. Co., 363 U.S. 574, 578-579, 80 S.Ct. 1347, 4 L.Ed.2d 1409. In order to interpret such an agreement it is necessary to consider the scope of other related collective bargaining agreements, as well as the practice, usage and custom pertaining to all such agreements. This is particularly true when the agreement is resorted to for the purpose of settling a jurisdictional dispute over work assignments.

The Congress has provided in Section 203(d) of the Labor-Management Relations Act, 29 U.S.C. § 173(d):

Final adjustment by a method agreed upon by the parties is hereby declared to be the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective-bargaining agreement. . . .

Agreements to arbitrate in collective bargaining agreements, moreover, have been broadly and favorably construed by the Courts. In United Steelworkers of America v. Warrior & Gulf Nav. Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960), Mr. Justice Douglas, joined by six members of the Court wrote (at 581-82, 80 S.Ct. at 1352):

Courts and arbitration in the context of most commercial contracts are resorted to because there has been a breakdown in the working relationship of the parties; such resort is the unwanted exception.

But the grievance machinery under a collective bargaining agreement is at the very heart of the system of industrial self-government. Arbitration is the means of solving the unforeseeable by molding a system of private law for all the problems which may arise and to provide for their solution in a way which will generally accord with the variant needs and desires of the parties. The processing of disputes through the grievance machinery is actually a vehicle by which meaning and content are given to the collective bargaining agreement.

Apart from matters that the parties specifically exclude, all of the questions on which the parties disagree must therefore come within the scope of the grievance and arbitration provisions of the collective agreement. The grievance procedure is, in other words, a part of the continuous collective bargaining process. It, rather than a strike, is the terminal point of a disagreement.

The labor arbitrator performs functions which are not normal to the courts; the considerations which help him fashion judgments may indeed be foreign to the competence of courts. "A proper conception of the arbitrator's function is basic. He is not a public tribunal imposed upon the parties by superior authority which the parties are obliged to accept. He has no general charter to administer justice for a community which transcends the parties. He is rather part of a system of self-government created by and confined to the parties. . . ." Shulman, Reason, Contract, and Law in Labor Relations, 68 Harv.L.Rev. 999 (1955) supra, at 1016.

The labor arbitrator's source of law is not confined to the express provisions of the contract, as the industrial common law — the practices of the industry and the shop — is equally a part of the collective bargaining agreement although not expressed in it. The labor arbitrator is usually chosen because of the parties' confidence in his knowledge of the common law of the shop and their trust in his personal judgment to bring to bear considerations which are not expressed in the contract as criteria for judgment. The parties expect that his judgment of a particular grievance will reflect not only what the contract says but, insofar as the collective bargaining agreement permits, such factors as the effect upon productivity of a particular result, its consequence to the morale of the shop, his judgment whether tensions will be heightened or diminished. For the parties' objective in using the arbitration process is primarily to further their common goal of uninterrupted production under the agreement, to make the agreement serve their specialized needs. The ablest judge cannot be expected to bring the same experience and competence to bear upon the determination of a grievance, because he cannot be similarly informed.

The Congress, however, has by § 301 of the Labor Management Relations Act, assigned the courts the duty of determining whether the reluctant par

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