Cumberland Typographical Union No. 244 v. Times and Alleganian Co., 90-2480

• Decision Date: 12 September 1991
• Docket Number: No. 90-2480,90-2480
• Parties: 139 L.R.R.M. (BNA) 2838, 119 Lab.Cas. P 10,891 CUMBERLAND TYPOGRAPHICAL UNION NO. 244, Plaintiff-Appellee, v. THE TIMES AND ALLEGANIAN COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 401

943 F.2d 401

139 L.R.R.M. (BNA) 2838, 119 Lab.Cas. P 10,891

CUMBERLAND TYPOGRAPHICAL UNION NO. 244, Plaintiff-Appellee, v. THE TIMES AND ALLEGANIAN COMPANY, Defendant-Appellant.

No. 90-2480.

United States Court of Appeals Fourth Circuit.

Argued May 8, 1991.

Decided Aug. 19, 1991.

As Amended Sept. 12, 1991.

James Anthony Rydzel, Jones, Day, Reavis & Pogue, Cleveland, Ohio, for defendant-appellant.

Richard Rosenblatt, Englewood, Colo., argued (Norman M. Gleichman, Washington, D.C., on brief), for plaintiff-appellee.

Before ERVIN, Chief Judge, HALL, Circuit Judge, and KELLAM, Senior District Judge for the Eastern District of Virginia, sitting by designation.

OPINION

ERVIN, Chief Judge:

The Times & Alleganian Company, a newspaper publisher, appeals the district court's order compelling arbitration with Cumberland Typographical Union No. 244 ("Union") of a dispute which arose under an expired collective bargaining agreement concerning that agreement's lifetime job guarantee provision. We find that the district court correctly applied Section 301(a) of the Labor-Management Relations Act of 1947, 29 U.S.C. § 185, to compel the arbitration, and therefore we affirm.

I.

The Times & Alleganian Company ("Company") publishes a daily newspaper in Cumberland, Maryland. The Union is the exclusive bargaining representative for the Company's composing room employees. The parties have negotiated numerous successive collective bargaining agreements.

In 1976, the Union and Company negotiated a lifetime job guarantee agreement ("LJG") for the composing room employees. The LJG was published initially in the parties' 1976 collective bargaining agreement and republished in all successive collective bargaining agreements, unchanged from its original form. In pertinent part, the LJG provides as follows:

The Employer agrees that all employees (journeymen and apprentices), covered by this agreement with a priority date of November 1, 1976 or earlier, whose names appear on the attached priority list will be retained on situations for the remainder of their working life unless vacating same through retirement, resignation, permanent disability, death or discharge for cause. Provided, however, in the event of permanent suspension of the Employer's operation such employment guarantee will thereupon cease, and provided further, in case of a strike, lockout, Act of God, or other situation over which Employer has no control, results in a period of temporary suspension of the Employer's operations, the job guarantee will be suspended for such period of temporary suspension of operation only.

The terms of this Article shall continue in force through succeeding agreements unless changed by mutual agreement between the parties. Because of and in consideration of the unique job guarantee set forth in this agreement, it is specifically agreed that the Company shall have the right to take full advantage of all automation and technology development which, in the opinion of the Company, would improve productivity, efficiency, and/or economy, provided, however, the above individual lifetime job guarantee will not be affected by the introduction of any new equipment or procedures.

The parties' most recent collective bargaining agreement expired by its terms on October 31, 1987. After bargaining over 19 months for an agreement to succeed the expired one, the parties reached agreement on all terms and conditions of employment in the new contract except wages. During the negotiations, the parties continued to abide by all of the terms and conditions of employment specified in the expired agreement.

In negotiating the wage issue, the Company insisted that the wages of the LJG employees would be cut from $434.50 per week to $302.00 per week. The Union, denying that impasse had been reached, rejected this proposal on the ground that it violated the continuing LJG. By letter dated June 13, 1989, the Company unilaterally implemented its wage cut proposal. At the same time, the Company implemented all other contractual terms previously agreed to between the parties, including the continuation of the grievance-arbitration procedure used in the expired agreement. That procedure specifically provided that all disputes which might arise as to the construction to be placed upon any clause of the agreement, and which could not be resolved by the specified internal grievance procedure, were to be referred to arbitration.

The Union filed a grievance, alleging that the Company's unilaterally-imposed wage reduction violated the continuing LJG agreement. As provided by the grievance-arbitration procedure, the Joint Standing Committee met to discuss the Union's grievance. The Committee, comprised of two Union and two Company representatives, did not resolve the grievance. The Union then requested that the grievance be referred to arbitration, but the Company refused to arbitrate.

The Union filed the suit underlying this appeal in the United States District Court for the District of Maryland pursuant to Section 301(a) of the Labor-Management Relations Act of 1947 ("LMRA"), 29 U.S.C. § 185. The Union sought to compel arbitration and, alternatively, to obtain a declaratory judgment that the wage reduction was unlawful. The parties stipulated to all material facts ¹ and filed crossmotions for summary judgment on the claim regarding arbitration. The district court dismissed the declaratory judgment claim without prejudice.

The district court granted summary judgment for the Union, ordering the parties to submit the dispute to binding arbitration and staying the action pending the outcome of the arbitration. The court held that, since the wage reduction arguably had an impact upon the preexisting job guarantees of the LJG and since the LJG was a vested right, under the parties' arbitration clause any dispute arising out of the job guarantee is subject to arbitration. However, the court limited the arbitrator's role to determining whether the wage cut imposed by the Company violated the LJG, prohibiting the arbitrator from "setting or suggesting an acceptable wage." The court's order provided that, if the arbitrator struck down the wage cut, the parties would continue the collective bargaining process.

The Company now appeals to this court.

II.

A party cannot be compelled to submit a dispute to arbitration unless he has contractually agreed to do so. AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 648, 106 S.Ct. 1415, 1418, 89 L.Ed.2d 648, 655 (1986). A party's agreement to arbitrate is a matter of contract construction and whether a dispute is arbitrable under a collective bargaining agreement is a question of law for the court. AT & T, supra, 475 U.S. at 649, 106 S.Ct. at 1418, 89 L.Ed.2d at 656; International Union, UAW v. Exide Corp., 688 F.Supp. 174, 180 (E.D.Pa.1988). If the court determines that the matter in dispute is a matter designated for arbitration by the parties in their contract, Section 301(a) of the LMRA allows the specific enforcement of the arbitration agreement. Textile Workers Union v. Lincoln Mills of Alabama, 353 U.S. 448, 450-51, 77 S.Ct. 912, 914, 1 L.Ed.2d 972, 977 (1957).

The Supreme Court has established four principles to guide courts in determining whether a labor dispute is arbitrable. Under the first principle, the parties must have contracted to submit the grievance to arbitration. The second principle requires that the court determine whether the contract provides for arbitration of the particular grievance in question. The third principle demands that the court not decide the merits of the grievance while determining the arbitrability of the dispute. Finally, if the contract contains an arbitration clause, a presumption of arbitrability arises. The court should not decline to order arbitration "unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute." AT & T, supra, 475 U.S. at 650, 106 S.Ct. at 1419, 89 L.Ed.2d at 656 (quoting United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409, 1417 (1960)). The Court has thus made it clear that, except for matters specifically excluded from arbitration in the collective bargaining agreement, all questions on which the parties disagree must be submitted to arbitration. United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960); United Steelworkers v. Warrior & Gulf, supra; United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960).

The district court in this case correctly found that the collective bargaining agreement did not specifically exclude from arbitration the continuing job guarantee provision. In fact, the wording of the grievance-arbitration clause indicates that the parties intended this provision to be subject to arbitration. This clause states, in pertinent part:

... To this Joint Standing Committee shall be referred all disputes which may arise as to the construction to be placed upon any clause of the agreement ... or alleged violations thereof, which cannot be settled otherwise.... Should the Joint Standing Committee be unable to agree then it shall refer the matter to a board of arbitration.... The decision of this board shall be final and binding upon both parties ...

(Emphasis added).

The Company alleges, however, that the district court did not have jurisdiction under Section 301 to compel arbitration of this dispute because, since the collective bargaining agreement had expired at the time the dispute arose, there was no agreement in effect. The Supreme Court significantly undermined this argument in Nolde Bros. Inc. v. Bakery & Confectionery Workers Union, 430 U.S. 243, 97 S.Ct. 1067, 51 L.Ed.2d 300 (1977). There the Court held that the termination of the collective ...