POST TRIBUNE PUB. v. American Arbitration Ass'n, Civ. No. H90-216.

• Decision Date: 28 June 1991
• Docket Number: Civ. No. H90-216.
• Parties: POST TRIBUNE PUBLISHING, INC., Plaintiff, v. AMERICAN ARBITRATION ASSOCIATION, INC., et al., Defendants.
• Court: U.S. District Court — Northern District of Indiana

767 F. Supp. 935

POST TRIBUNE PUBLISHING, INC., Plaintiff, v. AMERICAN ARBITRATION ASSOCIATION, INC., et al., Defendants.

Civ. No. H90-216.

United States District Court, N.D. Indiana, Hammond Division.

June 28, 1991.

COPYRIGHT MATERIAL OMITTED

Douglas R. Pierce, Nashville, Tenn., Kathryn Schmidt, Merrillville, Ind., for plaintiff.

Joseph V. Simeri, South Bend, Ind., Richard Rosenblatt, Englewood, Colo., for defendants.

MEMORANDUM OPINION AND ORDER

LOZANO, District Judge.

This matter is before the court on the Motion for Summary Judgment, filed August 8, 1990, by the plaintiff, Post Tribune Publishing, Inc. (hereinafter referred to as "Post Tribune"). The following motions are also before the court: The Motion for Entry of Judgment by Default, filed August 22, 1990, by the Post Tribune; the Motion for Leave to File Counterclaim, filed September 7, 1990, by the defendant, the Gary Typographical Union, No. 590 (hereinafter referred to as the "Union"); the Motion for Protective Order, filed March 18, 1991, by the Union; the Motion for Protective Order, filed March 22, 1991, by the Union; the Motion for Summary Judgment As to Count II of the Complaint, filed April 12, 1991, by the Post Tribune; and the Motion for Summary Judgment, filed April 12, 1991, by the Union. For the reasons set forth herein, the Post Tribune's Motion for Summary Judgment, filed August 8, 1990, is hereby GRANTED IN PART and DENIED IN PART; the Post Tribune's Motion for Entry of Judgment by Default is hereby GRANTED IN PART and DENIED IN PART; the Post Tribune's Motion for Summary Judgment on Count II of the Complaint is hereby DENIED; and the Union's Motion for Summary Judgment is hereby GRANTED. In light of the foregoing rulings on the motions for summary judgment, the Union's Motion for Leave to File Counterclaim is DENIED; and both of the Union's motions for a protective order, filed March 18 and 22, 1991, are hereby DENIED.

BACKGROUND

The Post Tribune is engaged in the publication of a daily newspaper known as the "Post Tribune", and the Union is and has been the exclusive collective-bargaining representative for employees performing composing room and camera-plate making work at the Post Tribune. The Post Tribune and the Union were parties to a collective-bargaining agreement, the preamble of which provides that this agreement "shall be effective beginning March 3, 1986, and ending March 2, 1988." (See Exhibit A, attached to the Stipulations, filed April 15, 1991, by the parties (hereinafter referred to as the "Contract")).

The Union notified the Post Tribune of its intent to negotiate a new contract by letter of December 1, 1987. (See Exhibit B, attached to the Stipulations, filed April 15, 1991, by both parties (hereinafter referred to as the "Stipulations").) Pursuant to 29 U.S.C. § 158(d), the Union also notified the Indiana Division of Labor that on December 1, 1987, the Union had notified the Post Tribune of its intention "to terminate or modify existing conditions." (See Exhibit C, attached to the Stipulations.) Between February 11, 1988 and April 3, 1991, representatives of the Post Tribune and of the Union have met to negotiate, but have not yet agreed upon a new collective-bargaining agreement. (See the Stipulations, p. 3, ¶¶ 10-12; and the Affidavit of Albert Rudy, executed April 10, 1991, attached to defendant, Gary Typographical Union No. 590's Motion for Summary Judgment as Exhibit 2, filed April 12, 1991.)

The Contract, which expired March 2, 1988, provides for the creation of a Joint Standing Committee to be comprised of three representatives appointed by the Post Tribune and three representatives appointed by the Union. (See Contract, Article Seven, Section 25-01, p. 21.) The Contract also provides that if the Joint Standing Committee is unable to resolve a grievance, "then it shall refer the matter to a Board of Arbitration, the representatives of each party ... are to appoint three arbiters and the six (6) shall agree upon a seventh ... but if after seven (7) days the six (6) members are unable to agree on a seventh member, he shall be selected from names supplied by the American Arbitration Association, and the dispute shall be resolved under the rules of the American Arbitration Association." (See Contract, Article Seven, Sections 25-03—25-04.) The Contract also provides that:

to this Joint Standing Committee shall be referred all matters which come under its jurisdiction by this agreement and all disputes which may arise as to the interpretation to be placed upon any clause of the agreement, except as provided otherwise herein, or alleged violations thereof which cannot be settled otherwise.

(See Contract, Article Seven, Section 25-02, p. 21.) This Contract also specifically provides that the only matters are not subject to arbitration are matters concerning local union laws not affecting wages, hours or working conditions, and the General Laws of the International Typographical Union. (See Contract, Article Seven, Section 25-05, p. 21.) Finally, this Contract provides that

if either party hereto wishes to propose an amendment to this agreement, or a new contract to take the place of this one upon its expiration date, it shall notify the other party in writing of its wishes at least sixty (60) days prior to expiration of this contract and each party shall exchange with each other their proposals for the contract not later than thirty (30) days prior to expiration. Failure to give notice, however, shall not be construed as extending this contract beyond its expiration date. If agreement has not been reached on a new contract at the expiration date, conditions prevailing at the expiration are to continue during the negotiations of a new contract.

(See Contract, Article One, Section 1-04, p. 1.)

The parties dispute the arbitrability of a post-contract grievance which concerns the Post Tribune's assignment of composing room work, over which the Union claims jurisdiction, to the Post Tribune's promotion department. Since January 1990, the Post Tribune's promotion department has been preparing "camera ready in-house promotional display advertisement copy." (See Stipulations, p. 4, ¶ 13.) The Union filed a grievance for the alleged failure of the Post Tribune to assign the makeup of these promotional display advertisements to composing room employees on March 19, 1990. (See Exhibit D, attached to Stipulations.) The Post Tribune considered the grievance but would not agree to submit the matter to arbitration because the Contract had expired. The parties did, however, discuss the grievance in a Joint Standing Committee meeting on March 22, 1990, but did not resolve the grievance.

Thereafter, by letter of March 26, 1990, the Union demanded arbitration of the grievance pursuant to Article One, Section 1-04 of the Contract. (See Exhibit E, attached to the Stipulations.) The Post Tribune refused to arbitrate the grievance because of its belief that there is no duty to arbitrate a grievance which arises after the expiration of a contract. (See Affidavit of Thomas D. Hartzell, executed August 6, 1990, filed August 8, 1990, in support of the Post Tribune's Motion for Summary Judgment, filed August 8, 1990.)

The Union filed the Demand for Arbitration, dated April 27, 1990, with the American Arbitration Association (hereinafter referred to as "AAA"), on April 30, 1990. (See letter of Bettye Jean Brown, dated May 7, 1990, filed in support of the Post Tribune's Motion for Summary Judgment, filed August 8, 1990.) The Contract provides that if the Joint Standing Committee is unable to resolve the grievance, "then it shall refer the matter to a Board of Arbitration." (See Contract, Article Seven, Section 25-03, p. 21.) Thereafter, the Post Tribune filed this suit to obtain a declaratory judgment regarding jurisdiction to determine the arbitrability of a grievance, and regarding the grievance itself, and to obtain injunctive relief.

DISCUSSION

Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper only if it is demonstrated "that there is no genuine issue as to any material fact, and that the moving party is entitled to a judgment as a matter of law." Walter v. Fiorenzo, 840 F.2d 427, 434 (7th Cir.1988); Beard v. Whitley County REMC, 840 F.2d 405, 409 (7th Cir.1988); Roman v. United States Postal Serv., 821 F.2d 382, 385 (7th Cir.1987); McGraw-Edison Co. v. Walt Disney Prods., 787 F.2d 1163, 1167 (7th Cir.1986); Fed. Deposit Ins. Corp. v. Meyer, 781 F.2d 1260, 1267 (7th Cir.1986). "Whether a fact is material depends on the substantive law underlying a particular claim and `only disputes over facts which might effect the outcome of the suit under governing law will properly preclude the entry of summary judgment.'" Walter, 840 F.2d at 434 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-252, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202, 211 (1986)).

The burden is upon the moving party to establish that no material facts are in genuine dispute, and any doubt as to the existence of a genuine issue must be resolved against the moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-162, 90 S.Ct. 1598, 1609-1610, 26 L.Ed.2d 142 (1970); Backes v. Valspar Corp., 783 F.2d 77, 79 (7th Cir.1986). To preclude summary judgment, a non-moving party must show a material issue of fact. "A party who bears the burden of proof on a particular issue may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact which requires trial." Beard, 840 F.2d at 410. Therefore, if a party fails to establish the existence of an essential element of its case on which it bears the burden of proof at trial, summary judgment will be appropriate. In this situation, "there can be no `genuine issue as to any material fact', since a complete failure of proof concerning an essential element of a non-moving party's case...