Washington Mailers Union No. 29 v. Washington Post Co.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 8, 2000 Decided December 8, 2000

No. 00-7045

Washington Mailers Union No. 29,
Affiliated with Communications Workers of America,
Appellant

v.

Washington Post Company,
Appellee

Appeal from the United States District Court for the
District of Columbia
(99cv01044)

Richard Rosenblatt argued the cause for appellant. With
him on the briefs was Mark F. Wilson.

Willis J. Goldsmith argued the cause and filed the brief for
appellee.

 Before: Tatel and Garland, Circuit Judges, and
Silberman, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge
Silberman.

Silberman, Senior Circuit Judge: The Washington Mailers
Union brought suit in federal district court seeking to compel
the Washington Post to arbitrate a dispute concerning the job
security provision of the collective bargaining agreement.
The court granted the Post's motion for summary judgment.
It concluded that the issue was related to an area of manage-
ment discretion and refused to order arbitration. We re-
verse.

I.

The Washington Post publishes a daily newspaper. The
Washington Mailers Union No. 29 is the collective bargaining
representative of the Post's mailing room employees. The
Union represents both mailers, who operate the machinery
which collates and places inserts into the newspaper, and
helpers, who perform materials-handling functions. When
the time for the expiration of the prior collective bargaining
agreement neared, the Union and the Post began negotia-
tions, and they entered into a new agreement in 1998. Sec-
tion 5 of the agreement allows for a grievance to be filed
"[w]henever there is a disagreement involving an alleged
violation of a specific provision of this Agreement, including a
controversy over any form of discipline or discharge." If the
parties cannot resolve the grievance, s 5(d) provides for
arbitration, but also limits the arbitrator's authority: "The
arbitrator shall not have the authority to amend or modify or
to add to or subtract from the provisions of this Agreement,
nor shall matters left unrestricted by a specific provision of
this Agreement or left to the discretion of the Publisher be
subject to arbitration."

Throughout the year, the Post analyzes production needs
and other factors to determine the minimum number of

"situations" (jobs)1 for both mailers and helpers needed to
handle production volume during the period. After such
determinations, the Post provides the Union with a mailroom
work schedule (the "mark-up") of available shifts for the
designated number of mailers and helpers. The mailers and
helpers included in each mark-up, referred to as situation-
holders, then select their fixed, five-day-a-week schedules in
order of seniority. The employees work these schedules for
the duration of the mark-up. The Post fills additional labor
needs, which vary depending on production and employee
absences, with mailer and helper "substitutes." Substitutes
are on-call employees to whom the Post offers, on a weekly
basis, up to five shifts per week. But substitutes are not
guaranteed five shifts a week.

In November 1998, the Post announced a new mark-up,
effective January 1999, which reduced the number of helper
situations from 144 to 122; the result was that 22 helpers no
longer had fixed five-day-a-week schedules. Instead, these
employees were offered on "a regular weekly basis, the
opportunity to work no fewer than five shifts each week"--
which means they would not know in advance their weekly
schedule. The Union filed a grievance claiming that this
change violated s 6(f)(1), which provides:

All situation holders actively working at The Post as of
April 5, 1998 as Mailers or Mailroom Helpers, and whose
names appear on the Job Security Rosters attached as
Appendices B and C, will be guaranteed regular, full-
time positions as Mailers or Helpers for the term of this
Agreement without layoff, unless they vacate the same
through retirement, resignation, death, or discharge for
cause....

The Union contended that this term-of-contract job security
provision guaranteed situations to the then-number of mailers
and helpers. It was claimed that 13 of the 22 employees

__________
1 The parties agree that a "situation" is a fixed five-day-a-week
work schedule.

denied situations were among those covered by the guarantee
of regular employment under s 6(f)(1).

The Post refused to arbitrate the grievance, maintaining
that arbitration of the employer's determination as to the
number of situations was expressly precluded by s 13(a). It
states:

The Publisher shall determine the number of regular
situations to meet minimum production requirements;
provided, the Publisher shall take into consideration the
number of extra shifts hired at the Publisher's option due
to sickness, vacations, jury duty, compassionate leave,
and any other relevant factors. In the event of a dispute
arising under this paragraph, the Union may grieve such
dispute, but the dispute shall not be subject to arbitra-
tion.

The Union countered that the agreement allows for arbitra-
tion if a violation of a specific provision of the agreement is
alleged, and it claimed that the separate guarantee of "regu-
lar" employment in s 6(f)(1) had been violated by denying
situations to the 13 covered workers. The Union emphasized
that it was not challenging the denial of situations to the nine
helpers, designated as substitutes, who were not employed at
the time the agreement went into effect and thus not covered
by s 6(f)(1). The Union conceded that these nine employees'
situations were nonarbitrable under s 13(a) because they
were not covered by the specific provision of s 6(f)(1).

The Union brought suit in federal district court under
s 301(a) of the Labor Management Relations Act of 1947, 29
U.S.C. s 185(a) (1994), seeking to compel arbitration. The
parties stipulated to the facts and filed cross-motions for
summary judgment. The district court granted summary
judgment for the Post concluding that s 13(a) "unambiguous-
ly removes disputes about the number of situations from
[arbitration]." The court reasoned that whether s 6(f)(1)
guarantees a situation for the 13 covered employees might
have been arbitrable if s 13(a) did not exist. The Union
appealed.

 II.

We review the district court's grant of summary judgment
de novo. See Yamaha Corp. of Am. v. United States, 961
F.2d 245, 254 (D.C. Cir. 1992). The determination of whether
a dispute is arbitrable under a collective bargaining agree-
ment is a question of law for the court, unless the parties
unmistakably agree to submit the issue of arbitrability to
arbitration. AT&T Techs., Inc. v. Communications Workers,
475 U.S. 643, 649, 106 S. Ct. 1415, 1418-19 (1986). But, "in
deciding whether the parties have agreed to submit a particu-
lar grievance to arbitration, a court is not to rule on the
potential merits of the underlying claims." Id. And if a
contract includes an arbitration clause, a presumption of
arbitrability arises, meaning "[a]n order to arbitrate the
particular grievance should not be denied unless it may be
said with positive assurance that the arbitration clause is not
susceptible of an interpretation that covers the asserted
dispute. Doubts should be resolved in favor of coverage."
Id. at 650, 106 S. Ct. at 1419 (internal quotation marks
omitted) (alteration in original) (quoting United Steelworkers
v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83, 80
S. Ct. 1347, 1353 (1960)).

As noted, the Union seeks to compel arbitration of its
grievance that the Post violated the specific guarantee of
"regular, full-time" employment provided by s 6(f)(1) of the
agreement when it denied mark-up situations to 13 employees
covered by s 6(f)(1). The Post relies on s 13(a), which it
asserts positively excludes this dispute--relating to the num-
ber of situations--from arbitration as entirely within the
management's discretion. Section 6(f)(1) does not limit this
discretion because "regular, full-time positions" does not
mean situations.

The Post at the onset argues that the grievance did not
really allege violations of s 6(f)(1) but only challenged the
number of situations, the very decision precluded from arbi-
tration under s 13(a). The Post relies heavily on the Union's
stipulation that the grievance "directly resulted from" and
would not have been filed "but for" the Post's decision to

reduce the number of situations.2 But the Union did not
challenge the mark-up per se, rather its effect on the 13
employees it alleged have superior rights under s (6)(f)(1).
The Union's legal claim only arose when those 13 employees
were negatively affected. That the mark-up was an anterior
cause of the grievance is hardly reason to conclude that the
Union's legal claim is focused on the mark-up. That is
equivalent to contending that if a union member complained
about the situations in the mark-up and was fired for his
complaints, he could not grieve his dismissal under a "just
cause" provision because his dismissal stemmed from the
mark-up.

It is apparent that the underlying dispute really turns on
the interpretation of "regular, full-time positions" in s 6(f)(1).
The Union claims it means that these 13 employees are
entitled to situations; whereas the Post contends that as long
as they are offered any five days in a week that is sufficient.
It would appear that the proper interpretation of this section,
which resolves the issue in this case, goes to the merits of the
grievance and is not for us to decide. As the Supreme Court
warned, "the court should view with suspicion an attempt to
persuade it to become entangled in the construction of the
substantive provisions of a labor agreement ... when the
alternative is to utilize the services of an arbitrator." Warri-
or & Gulf, 363 U.S. at 585, 80 S. Ct. at 1354.

Nevertheless, the Post contends the argument to send this
dispute to the arbitrator is necessarily to give the arbitrator
authority to decide arbitrability-a question reserved for the
court in this case. To be sure, by interpreting s 6(f)(1), the

__________
2 The first grievance actually stated that it involved "the recent
helper mark-up" because "[t]his mark-up contains a total of 122 jobs
which is in violation of 'job security roster section' [6(f)(1)] in the
contract" and the second grievance stated that it concerned the
employer's violation of s 6(f)(1), which provides that the designated
mailers will be "guaranteed regular, full-time positions," because
"[a]s a result of The Post's action in establishing the new mark-up
... employees whose names are on the Job Security Rosters will be
laid off from their regular, full-time positions and reduced to
substitute status."

arbitrator may implicitly decide the arbitrability issue, but
that outcome is inherent when the specific rights-based provi-
sion of the agreement is tied to the issue of arbitrability and
not only to the issue of rights. When such a situation occurs,
unless the issue is clearly excluded from arbitration, the
interpretation of the rights-based provision should be left to
the arbitrator. Cf. Ceres Marine Terminals, Inc. v. Int'l
Longshoremen's Ass'n, Local 1969, 683 F.2d 242, 244 (7th Cir.
1982) ("[W]here a collective bargaining agreement is ambigu-
ous regarding the effect of its arbitration provisions, doubts
should be resolved in favor of arbitration.").

Section 13(a) is hardly an unequivocal indication that a
grievance filed regarding the meaning of s 6(f)(1) is not
arbitrable. Section 13(a) does state that "The Publisher shall
determine the number of regular situations to meet minimum
production requirements.... In the event of a dispute aris-
ing under this paragraph, the Union may grieve such dispute,
but the dispute shall not be subject to arbitration." But
s 6(f)(1) specifically provides that "[a]ll situation holders ac-
tively working at The Post as of April 5, 1998 as Mailers or
Mailroom Helpers, and whose names appear on the Job
Security Rosters attached as Appendices B and C, will be
guaranteed regular, full-time positions as Mailers or Helpers
for the term of this Agreement." These provisions undoubt-
edly--at least on their face--create some tension. As the
Union points out, that is so because accepting the Post's
reading of the scope of s 13(a) and its relation to s 6(f)(1)
arguably could make the guarantee provision meaningless.
See Communications Workers v. AT&T Co., 40 F.3d 426, 435
(D.C. Cir. 1994) (concluding that a dispute was arbitrable by
refusing to read one provision as rendering a conflicting
provision a nullity). Given the tension, it is certainly plausi-
ble to read s 6(f)(1) as a specific restriction overriding the
general language of s 13(a)-indeed, it may be the more
persuasive reading. Ceres Marine Terminals, 683 F.2d at
244.3

__________
3 The cases the Post cites are inapposite in this case. See, e.g.,
Local Union 1393 Int'l Bhd. of Elec. Workers v. Utils. Dist. of W.

 Even if the language were thought ambiguous, the Post
claims that the bargaining history of the agreement is force-
ful evidence that disputes relating to the number of situations
were not subject to arbitration. The Post points out that
under the prior collective bargaining agreement the Union
attempted to arbitrate the Post's decision to reduce the
number of situations in the mark-up. As a result, the Post's
objectives in negotiating the present agreement included "to
eliminate or narrow the Union's ability to challenge, in arbi-
tration, The Post's exercise of its management rights" in the
areas of work assignments, hiring employees, and scheduling
employees. Accordingly, the Post obtained a revision of the
grievance and arbitration provisions to narrow the definition
of grievance and to exclude from arbitration "matters left
unrestricted by a specific provision of this Agreement or left
to the discretion of the Publisher." The Post also notes that
originally s 13(a) included "discretion" language for the pur-
pose of making decisions concerning the number of situations
nonarbitrable, and the Union, through its representative,
"stated [its] understanding that this 'discretion' language
excluded the matter to which it referred from arbitration."
Though this language was replaced with the express state-
ment that the section would not be arbitrable, the Union
admitted that it understood the agreed-upon language to have
the same meaning as "discretion." We are not persuaded by
the Post's resort to bargaining history. Section 6(f)(1) was
negotiated and added to the agreement after s 13(a), and the
parties did not specifically focus on the interrelation between
the two provisions.

The reasoning of the Seventh Circuit in Local 75, Interna-
tional Brotherhood of Teamsters v. Schreiber Foods, Inc., 213
F.3d 376 (7th Cir. 2000), is instructive. There the court
determined that the union's grievance over scheduling was

__________
Ind. Rural Elec. Membership Coop., 167 F.3d 1181, 1184 (7th Cir.
1999); Gen. Drivers, Local Union No. 509 v. Ethyl Corp., 68 F.3d
80, 84-85 (4th Cir. 1995); Int'l Ass'n of Machinists and Aerospace
Workers, Progressive Lodge No. 1000 v. Gen. Elec. Co., 865 F.2d
902, 906-07 (7th Cir. 1989). The Union has presented us with an
arbitrable clause that is expressly and specifically addressed to the
grievance.

arbitrable because, under at least one reasonable reading of
the agreement, the employer's discretion over the scheduling
was limited, restricted by another provision of the agreement
limiting scheduling to "reasonable times and frequencies."
Id. at 378-80. In this case as well, the agreement easily
bears the interpretation the Union asserts. And even the
Post conceded at oral argument that if we concluded the
arguments made by both sides as to the proper reading of the
contract were at least equally plausible then we must direct
the district court to order arbitration. It is not even certain,
then, that we must rely on the presumption of arbitrability
created by the existence of an arbitration clause to do so in
this case.4 But in any event that presumption does arise, and
therefore we think appellant easily prevails.

Having been filed under s 6(f)(1), the grievance is arbitra-
ble and any tension between s 6(f)(1) and s 13(a), as stated,
is for the arbitrator to resolve. The decision of the district
court is reversed.

So ordered.

__________
4 The Post argues that the presumption cases are inapplicable
because they involve the construction of a "broad" arbitration
clause. We disagree. While the fact that the arbitration clause in
this case is not broad--limiting grievances to allegations of "viola-
tion of a specific provision of this Agreement"--is relevant to our
inquiry, it does not negate the presumption of arbitrability. See
Int'l Bhd. of Elec. Workers, Local 2188 v. W. Elec. Co., 661 F.2d
514, 516 n.3 (5th Cir. Unit A Nov. 1981).