Chicago Newspaper Guild v. Field Enterprises, Inc., Newspaper Div.

• Citation: 747 F.2d 1153
• Decision Date: 01 November 1984
• Docket Number: No. 83-2737,83-2737
• Parties: 117 L.R.R.M. (BNA) 2937, 102 Lab.Cas. P 11,248 CHICAGO NEWSPAPER GUILD, Plaintiff-Appellee, v. FIELD ENTERPRISES, INC., NEWSPAPER DIVISION, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1153

747 F.2d 1153

117 L.R.R.M. (BNA) 2937, 102 Lab.Cas. P 11,248

CHICAGO NEWSPAPER GUILD, Plaintiff-Appellee, v. FIELD ENTERPRISES, INC., NEWSPAPER DIVISION, Defendant-Appellant.

No. 83-2737.

United States Court of Appeals, Seventh Circuit.

Argued May 22, 1984.

Decided Nov. 1, 1984.

Michael B. Erp, Katz, Friedman, Schur & Eagle, Chicago, Ill., for plaintiff-appellee.

Gerald A. Golden, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Ill., for defendant-appellant.

Before BAUER and FLAUM, Circuit Judges, and WYATT, Senior District Judge. ^*

FLAUM, Circuit Judge.

Appellant Field Enterprises, Inc. ("Field") appeals from the district court's order granting summary judgment to appellee Chicago Newspaper Guild ("the Guild") in a suit brought by the Guild on behalf of Franz Miller to enforce an arbitration award under section 301 of the Labor Management Relations Act, 29 U.S.C. Sec. 185 (1982). Field contends that it fully complied with the arbitration award ordering it to reinstate Franz Miller, notwithstanding the undisputed fact that Miller was never restored to active employment with Field, on the grounds that Miller would have been laid off from his employment with Field in 1978, prior to the arbitration award, had he not been discharged in 1977. The Guild argues that Field clearly did not comply with the arbitration award, and that Field cannot argue that Miller would have been laid off in 1978 as a defense to compliance with the arbitration award when it failed to present that argument to the arbitrator. For the reasons set out below, we affirm the district court's grant of summary judgment to the Guild.

I. BACKGROUND

On January 31, 1977, Franz Miller was discharged by Field from his position as a part-time clerk in the communications center of Field's Newspaper Division. The communications center provided services to the staffs of both the Chicago Sun Times and the Chicago Daily News. Affidavit of Gerald Minkkinen, dated June 16, 1982, p 4. The Guild protested Miller's discharge by filing a grievance against Field, which was submitted to arbitration pursuant to the collective bargaining agreement between Field and the Guild.

On March 4, 1978, before any hearings on the grievance had been held, the Chicago Daily News ceased publication. Field laid off five hundred and fifty employees in March 1978, including at least one hundred and thirty-one full-time employees and at least eighty-one employees with greater seniority than Miller. Affidavit of Robert McAllister, dated November 20, 1979, paragraphs 5, 8, 9. Field contends that Miller "would have been laid off from his employment with Field Enterprises as a result of the demise of the Chicago Daily News if he had been on the active payroll as of March 4, 1978." Id. p 6. The Guild, however, points out that Miller did not work exclusively for the Daily News, and that the position of communications center clerk remained in existence following the closing of the Daily News. Minkkinen Aff. p 6. ¹

On April 26, 1978, and July 17, 1978, arbitrator Robert G. Howlett held hearings on the grievance that the Guild had filed against Field on behalf of Franz Miller. At no time during these hearings did either party inform the arbitrator about the layoffs resulting from the demise of the Daily News. On November 24, 1978, the arbitrator issued an award directing Field to reinstate Miller immediately and awarding Miller backpay. Appendix of Appellant ("App.") at 17.

Field's response to the arbitration award was to send Miller a letter, dated December 22, 1978, in which Field "reinstated" Miller as of February 1, 1977 (the day after his discharge), placed him on layoff status as of March 7, 1978 (when Field contends he would have been laid off had he then been on the active payroll), and provided him with backpay from the date of his discharge to the date of his layoff ($7,075.17) along with accrued vacation benefits for the same period ($536.63) and certain other benefits which had been provided to other employees laid off in March 1978. ² McAllister Aff. p 10. In addition, Miller was placed on a rehire list along with all other employees laid off due to the closing of the Daily News. Id. p 12. At no time following the arbitration award did Field permit Miller to return to work. Defendant's Response to Plaintiff's Request for Admissions, dated August 4, 1980, at 4.

The Guild filed the present suit against Field on August 22, 1979, seeking enforcement of the arbitration award. The parties filed cross-motions for summary judgment on December 5, 1979. Both motions were denied on January 22, 1980.

On December 19, 1980, the parties filed their second cross-motions for summary judgment. The district court initially granted Field's motion for summary judgment and denied the Guild's cross-motion on May 14, 1982. Upon the Guild's motion for reconsideration, however, the court vacated its earlier order, granted the Guild's motion for summary judgment, and denied Field's cross-motion for summary judgment. Chicago Newspaper Guild v. Field Enterprises, Inc., Newspaper Division, No. 79 C 3474 (N.D.Ill. Aug. 5, 1982). This appeal followed.

II. ANALYSIS

The sole issue in this case is whether Field in fact complied with the arbitration award ordering it to reinstate Franz Miller. ³ Field's contention that it fully complied with the arbitrator's award is apparently based on a belief that the award required only that Miller be reinstated to the position he would have been in had there been no discharge. Coupled with its assertion that Miller would have been laid off in 1978 if he had not been unlawfully discharged in 1977, Field concludes that it complied with the arbitrator's award because Miller was "effectively reinstated and paid all benefits he would have earned from the date of his discharge (January 31, 1977), to the date he would have been laid off due to the cessation of publication of the Daily News (March 4, 1978)," i.e., restored to the position he would have been in had he not been discharged in 1977. Brief of Appellant at 9. Field's assertion of compliance must be rejected for three reasons. First, it is based on a clearly erroneous interpretation of the arbitrator's award. Second, even if we accepted Field's interpretation of the award, Field would be unable to prove that Miller would have been laid off in 1978 had he not been discharged in 1977. Finally, even if Field could establish that Miller would have been laid off in 1978, we would reject the argument because it was not presented to the arbitrator below.

A look at the plain wording of the arbitrator's decision reveals that Field simply did not comply with its clear mandate. The arbitrator's decision did not, as Field suggests, require Field to restore Franz Miller to the position he would have been in if he had not been previously discharged; rather, it plainly ordered Field "to return Employee Franz Miller to work at the beginning of the payroll period following receipt of this Opinion and Award." App. at 17. ⁴ It is undisputed that Field did not return Miller to work at any time following receipt of the arbitrator's award. Field's retroactive "reinstatement" of Miller thus carried out the arbitrator's mandate only insofar as Miller received a fraction of the backpay he was due. We hold that because Field refused to return Miller to work at any time following the arbitrator's award, thus failing to reinstate him under the plain language of the award, Field did not comply with the arbitration award ordering it to reinstate Franz Miller.

Our holding that the arbitration award required Field to actually return Miller to the active payroll following the issuance of the award does not mean, as Field contends, that Miller has been granted perpetual job security. Once reinstated, Miller would be in the same position as any other employee of Field, and would be subject to any lawful disciplinary action, layoff, or discharge. Any future employment decisions affecting Miller would, of course, be evaluated independently of the present action. See SEIU, Local 144 v. Metropolitan Jewish Geriatric Center, 94 L.R.R.M. (BNA) 3151, 3152 (S.D.N.Y.1977) (finding compliance with arbitral order of reinstatement when employee lawfully discharged immediately after reinstatement); Hellman v. Program Printing, Inc., 400 F.Supp. 915, 918 (S.D.N.Y.1975) (finding subsequent layoff of reinstated grievant to be new issue requiring separate grievance); Detroit and Midwestern States Joint Board v. White Tower Laundry and Cleaners, 353 F.Supp. 168 (E.D.Mich.1973) (finding subsequent transfer of reinstated employee to be separate grievable event). ⁵

Even if we were to accept Field's contention that the arbitration award required only that Miller be restored to the position he would have been in had he not been terminated, we would reach the same result in this case because Field acknowledged at oral argument that it would be impossible to establish today that Miller would have been laid off in March 1978 due to the closing of the Daily News. According to Field, layoffs were not carried out on the basis of seniority, although seniority was one of the criteria used in certain individual cases. ⁶ Defendant's Response to Plaintiff's Request for Admissions at 3. Field admits that no document exists which specifically states "the actual criteria or standards used by Field to determine which employees were to be laid off as a result of the closing of the Chicago Daily News," id., and also admits that most of the people who made personnel decisions for Field in early 1978 are no longer with the company.

In the absence of any supporting documents or other evidence, Field is forced to rely exclusively on the conclusory statement of Robert McAllister, Vice-President for Industrial Relations of the Chicago Sun Times, that Miller would have been laid off as a result of the demise of the Daily News if he had been on the active payroll as of...