Cincinnati Typographical Union No. 3, Local 14519, Communications Workers of America, AFL-CIO v. Gannett Satellite Information Network, Inc.

• Decision Date: 01 March 1994
• Docket Number: AFL-CI,No. 92-4181,P,92-4181
• Parties: 145 L.R.R.M. (BNA) 2622, 127 Lab.Cas. P 11,036 CINCINNATI TYPOGRAPHICAL UNION NO. 3, LOCAL 14519, COMMUNICATIONS WORKERS OF AMERICA,laintiff-Appellant, v. GANNETT SATELLITE INFORMATION NETWORK, INC. d/b/a Cincinnati Enquirer, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 906

17 F.3d 906

145 L.R.R.M. (BNA) 2622, 127 Lab.Cas. P 11,036

CINCINNATI TYPOGRAPHICAL UNION NO. 3, LOCAL 14519 COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO Plaintiff-Appellant, v. GANNETT SATELLITE INFORMATION NETWORK, INC. d/b/a Cincinnati Enquirer, Defendant-Appellee.

No. 92-4181.

United States Court of Appeals Sixth Circuit.

Argued Dec. 2, 1993.

Decided March 1, 1994.

Richard Rosenblatt (argued and briefed), Englewood, CO, for plaintiff-appellant.

Donald C. Dowling, Jr. (briefed), Thomas A. Brennan (argued and briefed), Cincinnati, OH, for defendant-appellee.

Before: JONES and SUHRHEINRICH, Circuit Judges; and ENGEL, Senior Circuit Judge.

NATHANIEL R. JONES, Circuit Judge.

Plaintiff-Appellant Cincinnati Typographical Union No. 3 ("Union") appeals the summary judgment granted to Defendant Gannett Satellite Information Network, Inc., which publishes the Cincinnati Enquirer, one of Cincinnati's two large daily newspapers. The union brought this action after the Enquirer denied arbitration in a union challenge to the layoff of several employees. Finding that the Enquirer had no obligation to arbitrate the challenge, we affirm the summary judgment.

I

The union, which represents printers employed in the Enquirer's composing room, has had collective bargaining agreements ("CBAs") with the Enquirer since at least 1906. The printers set the type used to produce the newspaper, and, due to an agreement between newspapers, they also set the type used to produce the city's other large paper, the Cincinnati Post.

Since 1941, the parties have bargained for provisions creating what is referred to as "reproduction on the hook." That term refers to advertising copy that has arrived in pre-set form and been published in the Enquirer, but which printers may nevertheless spend time duplicating even though the copy they reproduce will never be published. As the legal issue before us is whether the printers' right to reproduce such copy is one that is "accrued or vested" such that it survives the expiration of a collective bargaining agreement, we must first explain exactly what that right is and how it came to be.

The function of reproduction dates from the mid-century advent of linotype machines, which for the first time made it possible for copy from one newspaper to be republished at another newspaper without the second newspaper's printers needing to re-set the type. Printers' unions originally opposed the use of this new technology, anticipating that it would result in a loss of printing jobs. To prevent such a loss, unions bargained for the right to maintain their members' jobs, even in the face of diminished need. The unions proposed terms providing for the reproduction of pre-set work, in order that employers could not lay off printers due to a lack of work where the lack was attributable to the new technology. Typically, under these terms, the union stored the pre-set advertising, which, in jargon, was then "on the hook." The printers subsequently reproduced the advertising during lulls in their work, assuring that they had as much work to do as they would have had if the newspaper did not accept pre-set copy. To complete the protection, CBAs that provided for reproduction on the hook guaranteed printers that they could not be laid off (for lack of work) so long as reproduction was on the hook.

The most recent CBA between the union and the Enquirer began on March 1, 1981, and contained a provisional expiration date of February 29, 1984. The contract was to be extended if negotiations for a new contract continued past the expiration date, until the parties agreed to terminate the agreement. The parties in fact were negotiating for a new contract throughout 1984 and beyond, and the agreement ran until terminated on October 12, 1987. At that time, the Enquirer posted new unilaterally implemented terms and conditions of employment. The Regional Director of the National Labor Relations Board has ruled that the Enquirer lawfully posted these new conditions of employment, for the parties had reached a genuine bargaining impasse.

The 1981 agreement continued to provide for the reproduction of local advertising. The agreement permitted the Enquirer to use pre-set local advertising on the condition that, for two weeks after the ads were published, union members would be permitted to spend time during lull periods duplicating the ads. However, in Section 34 of the agreement, the Enquirer was able to bargain for new limitations on reproduction not placed in the parties' prior agreements. First, the reproduction could only be performed by printers who held full-time jobs on February 28, 1982. Eighteen printers met this criteria. Second, the Enquirer would not pay these printers overtime wages for reproduction work, though the printers could delay reproduction past the two-week period if not enough of the qualified printers had time to reproduce copy. Thus, the agreement allowed only certain printers to perform reproduction and only for regular wages. The agreement also maintained an explicit guarantee that the qualified printers could not be laid off so long as reproduction work remained on the hook. The Enquirer's unilaterally imposed terms and conditions of employment include neither an "on the hook" clause nor a clause providing for arbitration of disputes, as the prior agreements did.

In December 1990, the Enquirer laid off three printers who were eligible to do reproduction work under the 1981 agreement. The union filed grievances over the layoffs of these printers, alleging that they were improperly discharged because the union maintained thousands of hours of work on the hook. In accordance with the parties' standard procedures under the agreement, a Joint Standing Board composed of two representatives of management and two representatives of the union convened to consider the grievance. The Board deadlocked, and the union demanded arbitration, which was the next procedural step under the agreement. However, the Enquirer refused to go to arbitration. In February 1991, the Enquirer fired a fourth printer, and the union filed another grievance, which the Enquirer also refused to arbitrate.

Pursuant to section 301 of the Labor Management Relations Act, 29 U.S.C. Sec. 185, the union filed a complaint in federal district court alleging that the Enquirer breached the collective bargaining agreement by refusing to arbitrate the grievances. The union's basis for its claim is that it is seeking to enforce a right arising under the collective bargaining agreement that survived the termination of that agreement. The Enquirer, however, emphasizes that the 1987 posting of work conditions contains no on-the-hook clause and no arbitration clause. On September 30, 1992, the district court granted summary judgment for the Enquirer, and the plaintiffs appealed.

We are called on here to determine only whether the Enquirer is required to arbitrate the union's current grievances under the 1981 collective bargaining agreement. Arbitration is a preferred method of settling labor disputes. 29 U.S.C. Sec. 173(d); Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409 (1960). Nevertheless, "arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." Id. at 582, 80 S.Ct. at 1353. The dispute in this case involves the reconciliation of these two basic principles of labor law, for we must here determine whether arbitration is required in a situation where the parties disagree over whether their collective bargaining agreement requires arbitration.

Under the Labor Management Relations Act, the enforcement and interpretation of collective bargaining agreements is governed by traditional rules of contract interpretation so long as their application does not conflict with federal labor policy. Armistead v. Vernitron Corp., 944 F.2d 1287, 1293 (6th Cir.1991). When interpreting a collective bargaining agreement, we look at the specific language in the context of the entire agreement. Id. Our review of the district court's grant of summary judgment is de novo. Rector v. General Motors Corp., 963 F.2d 144, 146 (6th Cir.1992).

II

The Enquirer contends that the unilaterally implemented terms and conditions of employment by themselves cut off any arbitration requirement. As the Enquirer would have it, the fact that the posted conditions contain no arbitration clause is enough to resolve this case in its favor, as those conditions replaced the 1981 agreement. The district court, without citing any authority, accepted this argument, holding that: "The Employer is not required to arbitrate a grievance regarding a layoff that arose out of a provision from a terminated CBA [collective bargaining agreement] when a unilateral change lawfully made in the newly-posted terms and conditions of employment did not provide for arbitration for such a layoff." J.A. at 42.

It is true that when the parties to a labor dispute reach a genuine impasse in their negotiations, an employer may unilaterally impose changes in the terms and conditions of employment, NLRB v. H & H Pretzel Co., 831 F.2d 650, 656 (6th Cir.1987), and in this case, the NLRB has ruled that the parties achieved an impasse and that the Enquirer's new conditions were lawfully posted. It is likewise undisputed that the new conditions contained neither an "on the hook" provision nor an arbitration clause, though the parties' expired agreement contained both.

Nevertheless, the Enquirer's initial argument is wrong, for the unilateral posting does not eliminate rights that the parties previously agreed would continue after their agreement expired. In their CBAs, parties may contract for rights that may be enforced after the time that the agreement itself ends. Armistead, 944 F.2d at 1294 (the "parties to a CBA may provide for rights that survive the...