Morristown Daily Record, Inc. v. Graphic Communications Union, Local 8N, 87-5321

• Decision Date: 29 October 1987
• Docket Number: No. 87-5321,87-5321
• Citation: 832 F.2d 31
• Parties: 126 L.R.R.M. (BNA) 2902, 107 Lab.Cas. P 10,198, 9 Fed.R.Serv.3d 1363 MORRISTOWN DAILY RECORD, INC., Appellant, v. GRAPHIC COMMUNICATIONS UNION, LOCAL 8N, Appellee.
• Court: U.S. Court of Appeals — Third Circuit

Page 31

832 F.2d 31

126 L.R.R.M. (BNA) 2902, 107 Lab.Cas. P 10,198,

9 Fed.R.Serv.3d 1363

MORRISTOWN DAILY RECORD, INC., Appellant, v. GRAPHIC COMMUNICATIONS UNION, LOCAL 8N, Appellee.

No. 87-5321.

United States Court of Appeals Third Circuit.

Argued Aug. 18, 1987.

Decided Oct. 29, 1987.

Kathleen M. McKenna (argued), Jedd Mendelson, Seyfarth, Shaw, Fairweather & Geraldson, New York City, for appellant, Morristown Daily Record, Inc.

Paul A. Montalbano (argued), Schneider, Cohen, Solomon, Leder and Montalbano, Jersey City, N.J., for appellee, Graphic Communications Union, Local 8N.

Before GIBBONS, Chief Judge, and WEIS and SLOVITER, Circuit Judges.

OPINION OF THE COURT

WEIS, Circuit Judge.

Although it acknowledged its obligation to decide whether a collective bargaining agreement required that a particular grievance be arbitrated, the district court nevertheless referred the issue of arbitrability to an arbitrator. The court believed that this question was inseparable from the merits of the underlying dispute. After a careful reading of the labor contract, we find the issues of arbitrability and the merits to be discrete and independent. Therefore, we conclude that the district court can resolve the threshold question of arbitrability without encroaching on the substance of the grievance. Accordingly, we will remand for further proceedings.

The company brought this action against the union for a declaratory judgment that a particular grievance was excluded from arbitration by the terms of the collective bargaining agreement. The district court denied the company's request and granted the union an injunction compelling arbitration. ¹

Plaintiff company and defendant union were parties to a collective bargaining agreement in effect at the time of this controversy. The company publishes and distributes a newspaper in Morristown, New Jersey. In December 1985, when an opening occurred in its pressroom, the company advised the union of the vacancy as required by section 21 of the collective bargaining agreement. Responding to this notification, the union referred Robert Forbes, one of its members, for the position. He worked pressroom night shifts of December 7 and December 8. Forbes contends that when he reported for work on December 9, he was told that the company's production manager had ordered his dismissal.

The union filed a grievance on Forbes' behalf, asserting that he was wrongfully discharged. When informal procedures failed to resolve this grievance, the union sought arbitration as provided by section 5 of the collective bargaining agreement. The company, however, refused the union's demand, maintaining that Forbes was not hired as a regular journeyman within the coverage of section 5.

The company asserts that it employs two categories of pressroom workers: regular journeymen who make up the daily work force, and substitute journeymen who are hired for only a single shift to meet the fluctuating needs of the newspaper. Because this latter category of employees is hired only for one shift, the company argues that a refusal to retain a substitute journeyman is a non-arbitrable hiring decision rather than an arbitrable discharge. The company contends that Forbes was an "applicant" for hire whom it could reject for employment under section 21 without triggering the arbitration clause.

Distinguishing the present case from AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986), the district court directed the parties to arbitrate. Unlike the parties in AT & T Technologies, the company and union here did not dispute the content of the arbitration exemption clause. Instead, the district court viewed the underlying dispute as whether the company's decision to "turn down Mr. Forbes for more work was properly made in accordance with the limitations of the contract."

The district court judge continued: "a determination by the court regarding plaintiff's actions denying further work to Mr. Forbes would resolve the 'relative merits of the parties' substantive interpretations of the agreement,' and would thus resolve the step in the parties' dispute which was saved for the arbitrator in AT & T. In short, AT & T does not forbid arbitration here, it calls for arbitration." Without any further elaboration, the court directed the parties to arbitrate the Forbes dispute.

On appeal, the company alleges that the district court erred in failing to give effect to section 21 of the collective bargaining agreement which expressly excluded from arbitration the company's rejection of union-referred applicants. The union contends that, under section 5 of the agreement, the arbitrator is to resolve disputes as to the meaning of the terms in the contract and, therefore, the district judge's order referring the grievance to the arbitrator was correct.

Our review begins with the principles summarized in AT & T Technologies. Arbitration in collective bargaining agreements is a matter of contract; the arbitrators derive their authority from the parties' voluntary agreement. "[A] party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." AT & T Technologies, 475 U.S. at 648, 106 S.Ct. at 1418; United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1352, 4 L.Ed.2d 1409 (1960).

Whether a dispute is arbitrable is a question for the court to resolve. Absent the parties' clear expression to the contrary, see Johnson v. United Food & Commercial Workers Int'l, Local No. 23, 828 F.2d 961, 963-66 (3d Cir.1987), that threshold question is to be decided by the court, not the arbitrator. AT & T Technologies, 475 U.S. at 649, 106 S.Ct. at 1418; Warrior & Gulf, 363 U.S. at 582, 583 n. 7, 80 S.Ct. at 1352, 1353 n. 7. In determining whether the parties have agreed to submit to arbitration, the court must avoid ruling on the merits of the underlying claims. AT & T Technologies, 475 U.S. 649, 106 S.Ct. at 1419; United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 568, 80 S.Ct. 1343, 1346, 4 L.Ed.2d 1403 (1960).

Application of these principles may be complicated by contractual provisions excluding certain matters from the scope of an otherwise broad arbitration clause. The Supreme Court confronted this problem in AT & T Technologies. There, an expansive arbitration clause applied only to disputes "not excluded from arbitration by other provisions of this contract." A management rights clause conceding the company's limited authority to hire, place, and terminate employees was excluded expressly from the arbitration provision.

The matter at issue in AT & T Technologies was whether the employer had violated the collective bargaining agreement by laying off workers in one location and bringing in others from different assignments as replacements. The union contended that the dispute was controlled by a separate clause in the contract, which set out the procedures for laying off employees when "lack of work" required it. This clause was not excluded expressly from the arbitration provision. Conversely, the employer argued that the dispute came within the management rights proviso which, by its terms, made such disputes nonarbitrable.

The court of appeals concluded that the dispute should be referred to the arbitrator because choosing between the two substantive sections of the collective bargaining agreement would enmesh the district court in the merits. The Supreme Court disagreed, explaining that it was the court's duty in the first instance to determine whether the parties intended to arbitrate grievances over layoffs predicated on the employer's assertions of lack of work. Only if the district court found that the parties so intended could the arbitrator decide which party's substantive interpretation was correct.

In his concurrence, Justice Brennan explained that the district court had mistakenly read the exclusion provision in the management rights clause in a manner that made arbitrability depend on the merits of the parties' underlying dispute. The proper inquiry, wrote Justice Brennan, was actually much simpler--had the parties agreed to arbitrate disputes over the meaning of the exclusion clause. The district court need not, and should not, have decided which party's interpretation of the clause was correct. AT & T Technologies, 475 U.S. at 653-56, 106 S.Ct. at 1421-22 (Brennan, J., concurring).

The Supreme Court remanded the case for a determination of whether an "express exclusion or other forceful evidence" indicated the parties' intention not to submit the layoff clause controversy to arbitration. Id. 475 U.S. 652, 106 S.Ct. at 1420.

Careful review of AT & T Technologies illustrates that the Supreme Court has not weakened its enthusiastic endorsement of arbitration in labor disputes. However, the message is clear that courts must carefully analyze the contractual language to determine whether a particular dispute is arbitrable. Although answering that question may entail some probing of...