Detroit News. Pub. Ass'n v. DETROIT TYPO. UN. NO. 18, ETC.

• Decision Date: 20 December 1972
• Docket Number: No. 72-2156.,72-2156.
• Citation: 471 F.2d 872
• Parties: DETROIT NEWSPAPER PUBLISHERS ASSOCIATION et al., Defendants-Appellants, v. DETROIT TYPOGRAPHICAL UNION NO. 18, INTERNATIONAL TYPOGRAPHICAL UNION, Plaintiff-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

471 F.2d 872 (1972)

DETROIT NEWSPAPER PUBLISHERS ASSOCIATION et al., Defendants-Appellants, v. DETROIT TYPOGRAPHICAL UNION NO. 18, INTERNATIONAL TYPOGRAPHICAL UNION, Plaintiff-Appellee.

No. 72-2156.

United States Court of Appeals, Sixth Circuit.

December 20, 1972.

Andrew M. Kramer, Chicago, Ill., for defendants-appellants; John Corbett O'Meara, Detroit, Mich., Frank H. Stewart, Cincinnati, Ohio, on brief for defendants-appellants, The Detroit News, Detroit Newspaper Publishers Assn. and The Detroit Free Press; Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Ill., Dickinson, Wright, McKean & Cudlip, Detroit, Mich., Taft, Stettinius & Hollister, Cincinnati, Ohio, of counsel.

Sheldon Klimist, Miller, Klimist, Cohen, Martens & Sugarman, Detroit, Mich., for plaintiff-appellee.

Before PHILLIPS, Chief Judge, and PECK and MILLER, Circuit Judges.

PHILLIPS, Chief Judge.

This is an appeal under 28 U.S.C. § 1292(a)(1) from the granting of a preliminary injunction in a labor dispute.

Detroit Typographical Union No. 18 (the Union) is the bargaining representative of certain employees of Detroit's two daily newspapers, The News and The Free Press. The current collective bargaining agreement between the parties was signed June 18, 1971, and by its terms will remain in effect through June 17, 1974.

The Detroit News is constructing a publishing building outside the city, which will house its production facilities now located in downtown Detroit. The news gathering and editorial offices will remain downtown. The distance between the downtown offices and the new plant will be approximately twenty-three miles.

The underlying dispute between the parties grows out of the decision of the newspaper to utilize new electronic editing equipment known as CRT. Both the new and the replaced equipment serve the function of converting typewriter copy into a computer tape which sets the type for printing the newspapers. The Detroit News has directed that the CRT equipment be operated by editorial personnel rather than by composing room employees, members of the Union, who have been operating the replaced equipment.

On or about September 26, 1972,¹ the Detroit News informed the Union of its plan to use the new equipment and that it would not be operated by composing room employees represented by the Union. The Union took the position that the operation of this equipment by personnel other than composing room employees to prepare computer input or tapes for publication would be a violation of the collective bargaining agreement. The Union conceded that management could use the new equipment for test purposes only, but not for live publication.

Applicable parts of the collective bargaining agreement, including the "status quo" provisions of § 10(b), are set forth in the appendix to this opinion.

By letter dated October 2 the Detroit News informed the Union that a dispute existed pursuant to the collective bargaining agreement and that the dispute was being submitted to the Joint Standing Committee, consisting of representatives of the Publisher and the Union. This Committee met on October 12 but was unable to resolve the dispute. By letter dated October 23 addressed to the Union the Detroit News initiated arbitration of the dispute in accordance with the collective bargaining agreement. The issue of whether employees other than those represented by the Union can operate the electronic editing equipment for the preparation of computer input or tapes for live publication is currently in the process of being arbitrated. During arbitration the newspaper is continuing with the installation of the equipment.

On October 30 the newspaper requested members of the Union to use the new equipment for live production, that is, for newspaper publication.

The tape was run as requested, but the Union on the same day sent the following telegram to the Detroit News:

"YOUR DECISION TO USE THE TAPE AND/OR COMPUTER INPUT CREATED BY TED DOUGLAS, NEWS STAFF WRITER, FOR THE 11:30 a. m. EDITION ON OCTOBER 30, 1972, IS A VIOLATION OF SECTION 47 and 48 OF THE AGREEMENT. THE USE OF SUCH TAPE AND/OR COMPUTER INPUT IS A VIOLATION OF SECTION 10(b) `STATUS QUO\' AND YOU ARE REQUIRED TO CEASE THE USE OF SUCH TAPE AND/OR COMPUTER INPUT UNTIL THIS DISPUTE IS RESOLVED UNDER THE TERMS OF THE AGREEMENT."

Upon receiving this telegram, the newspaper sent a telegram to the Union expressing disagreement with the Union's position that the "status quo" clause of the agreement was applicable to the dispute. In this telegram the newspaper stated its willingness to resolve the dispute regarding the applicability of the "status quo" clause through the appropriate arbitration procedure set forth in § 10 of the collective bargaining agreement.

On October 31 the Union filed its complaint initiating the present litigation under Title III, § 301 of the Labor-Management Relations Act, 29 U.S.C. § 185, praying for a preliminary injunction and permanent injunction. The complaint alleged that the Union and its members would suffer irreparable harm unless an injunction was granted restraining the newspaper from utilizing the electronic editing equipment pending an arbitrator's determination of the grievance filed by the Detroit News on October 2. A hearing was held before the District Court November 2 on the Union's application for a preliminary injunction. On November 14 the District Court rendered an oral opinion from the bench in favor of the Union and entered an order enjoining the Detroit News from utilizing the electronic editing equipment for other than test purposes unless it is operated by the composing room employees represented by the Union. This injunction by its terms will remain in effect pending a determination by arbitration of the underlying dispute. The District Court held that the newspaper has violated the "status quo" clause of the contract.

This appeal is from the order granting the injunction. We reverse.

The newspaper filed in this court a motion for stay pending appeal. Oral argument on the motion to stay was heard by a judge of this court on November 24. The appeal thereupon was advanced for hearing on the merits on December 1, and the motion to stay was referred to the hearing panel. Since we reverse the decision of the District Court on the merits, it is not necessary to act upon the motion to stay.

Under the principles enunciated by the Supreme Court in the Steelworkers trilogy,² arbitration is favored as a means of resolving labor disputes. Under a collective bargaining agreement providing for binding arbitration, it is not the province of the courts to determine issues of fact which bear upon the question of whether a particular section of the contract has been violated. This is the function of the arbitrator. American Radiator & Standard Sanitary Corp. v. Local 7 of the International Brotherhood of Operative Potters, AFL-CIO, 358 F.2d 455, 458 (6th Cir.1966). See also John Wiley & Sons v. Livingston, 376 U.S. 543, 558, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964).

It was not the prerogative of the District Court to construe the "status quo" clause of the contract or to make a factual determination as to whether there has been a violation of this clause. We see no reason why this issue, along with the basic underlying dispute between the parties, cannot be determined by arbitration.

The fatal defects in the decision of the District Court were: (1) its failure to weigh the equities between the parties and to determine whether the employer would suffer more from the granting of the injunction than the Union from its denial, as required by Boys Markets Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235, 254, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970); and (2) the absence of a showing of irreparable harm to employees as mandated by Boys Markets.

In Boys Markets the Supreme Court adopted the following principles for the guidance of District Courts in determining whether to grant injunctive relief in labor disputes:

"A District Court entertaining an action under § 301 may not grant injunctive relief against concerted activity unless and until it decides that the case is one in which an injunction would be appropriate despite the Norris-LaGuardia Act. When a strike is sought to be enjoined because it is over a grievance which both parties are contractually bound to arbitrate, the District Court may issue no injunctive order until it first holds that the contract does have that effect; and the employer should be ordered to arbitrate, as a condition of his obtaining an injunction against the strike. Beyond this, the District Court must, of course, consider whether issuance of an injunction would be warranted under ordinary principles of equity—whether breaches are occurring and will continue, or have been threatened and will be committed; whether they have caused or will cause irreparable injury to the employer; and whether the employer will suffer more from the denial of an injunction than will the union from its issuance." (Emphasis in original.)³ 398 U.S. at 254, 90 S.Ct. at 1595.

In his bench opinion in the present case the District Judge did not weigh the equities as between the newspaper and its employees or make any determination as to whether the employer would suffer more from the granting of the injunction than the Union from its denial. Further, the District Court announced only a bare conclusion as to irreparable harm and failed to make findings of fact to support this conclusion. See Lauf v. E.G. Shinner & Co., 303 U.S. 323, 330, 58 S.Ct. 578, 82 L.Ed. 872 (1938).

In the above quoted language of Boys Markets, the Supreme Court emphasized that the District Court must consider whether issuance of an injunction would be warranted under "ordinary principles of equity." These principles are described by Professor Wright as follows:

"The classic principles governing availability of injunctions were summarized by Justice Baldwin, sitting at circuit, in 18

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