Opinion
No. 10082.
Argued October 8, 1965.
Decided November 2, 1965.
Theodore Sherbow, Baltimore, Md. (William A. Agee, and Sherbow, Shea Doyle, Baltimore, Md., on brief), for appellant.
Thomas X. Dunn, Washington, D.C. (Sherman Dunn, Washington, D.C., on brief), for appellee.
Before SOBELOFF, BOREMAN and BRYAN, Circuit Judges.
The union brought suit in the District Court under section 301 of the Labor Management Relations Act, 29 U.S.C.A. § 185, to compel arbitration. The District Judge denied the motion of the defendant newspaper to dismiss and ordered the parties to arbitrate pursuant to a collective bargaining agreement executed April 30, 1964.
The suit arises out of a notice sent by the publishers of the News American to members of the IBEW advising them that there would be no work for an indefinite period of time. A complete understanding of the case requires a brief statement of its factual background.
The News American and the Sunpapers are the two leading daily newspapers in Baltimore. On April 17, 1965, the Washington Newspaper Guild struck the Sunpapers after months of fruitless collective bargaining. Members of the International Typographical Union and Teamsters Union refused to cross the Guild's picket line, and as a result the Sunpapers was unable to continue operations and suspended publication.
The ITU and the Teamsters have joint collective bargaining agreements with the Sunpapers and the News American; the contract of the IBEW is with the News American alone. When the ITU and Teamsters refused to cross the Guild picket line, with the resulting shutdown of the Sunpapers, the News American, which had not been struck, notified its employees that the action of the ITU and the Teamsters (with which the IBEW was in no way connected) violated the no-strike provisions of the joint contracts and threatened the integrity of the multi-employer bargaining unit. The News American further notified its employees that it was suspending publication temporarily and that for a period of time there would be no work for them.
An additional notice was sent to certain maintenance and clerical employees, informing them that they should continue to report to work.
Upon learning of the News American's suspension notice, the plaintiff union requested arbitration of the company's right under these circumstances to lock out members of the IBEW. The News American denied the request.
The pertinent provisions of the collective bargaining agreement are as follows:
"ARTICLE IX — ARBITRATION
"It is agreed that in the event a grievance or misunderstanding arises out of and during the terms [sic] of this agreement, as provided for herein, that cannot be composed by the Union and the Publisher within a reasonable time, and which constitutes a matter subject to review, such grievance shall be submitted to arbitration. * * * [Either party may request that the grievance be submitted to arbitration.] There shall be no lockout by the Publisher or strike or stoppage of work by the employees pending the arbitration decision. It is agreed that any difference arising incident to negotiation of the terms of a new agreement are not covered by this section; the sole purpose of which is to make subject to arbitration grievances arising out of and during the terms [sic] of the agreement. * * *
"ARTICLE X — STRIKES AND LOCKOUTS
"* * * There shall be no stoppage of work, either by strike or lockout during the term of this agreement or disputes over matters relating to this agreement. All such matters must be handled as stated in Article IX herein."
The question presented to us is a very narrow one: Is the arbitration clause "susceptible of an interpretation that covers the asserted dispute? Doubts should be resolved in favor of coverage." United Steelworkers of America v. Warrior Gulf Co., 363 U.S. 574, 582-583, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409 (1960); A.S. Abell Co. v. Baltimore Typographical Union No. 12, 338 F.2d 190, 193 (4th Cir. 1964); United Textile Workers of America, Local No. 120 v. Newberry Mills, Inc., 315 F.2d 217, 218 (4th Cir. 1963).
No provision in the contract defines "grievance" or "misunderstanding" or limits those terms in any way. Either party may request that a grievance be submitted to arbitration. The only matter specifically excluded from the arbitration provision is a dispute "incident to negotiation of the terms of a new agreement." This court cannot say that the company's right to lock out members of the IBEW is a matter excluded from arbitration, for the contract in very broad terms provides that there shall be no strike or lockout during the term of the agreement and that all disputes relating to the agreement must be submitted to arbitration.
It is true, as the employer contends, that there was no dispute between the News American and the IBEW prior to the company's decision to lock out the union's members. It must be conceded, however, that a bona fide dispute did exist between the parties once the union communicated to the employer its strong feeling that the employer had no right under the contract to bar its members from their jobs.
The employer maintains that its letter to IBEW members telling them not to report for work did not constitute a "lockout." The employer cites several arbitration decisions to the effect that a lockout occurs only when an employer directs its employees not to report for work in order to gain a concession from them. In Re Great Atlantic Pacific Tea Co., 33 Lab. Arb. 502 (1959); In Re Great Atlantic Pacific Tea Co., 32 Lab. Arb. 838 (1959); In Re Mrs. Conkling's Bakery, 15 Lab. Arb. 168 (1950). The union replies that this is too narrow a view of the term "lockout" as used in the agreement. It insists that when unoffending employees are told not to report for work because the employer voluntarily suspends operations in a strategic move to aid another employer in its dispute with other unions, this constitutes a "lockout" within the meaning of the collective bargaining agreement.
A similar definition of the term "lockout" was adopted in Local 50, Bakery and Confectionery Workers v. General Baking Co., 97 F. Supp. 73 (S.D.N.Y. 1951). There the union brought suit for damages under section 301 against the company for an alleged breach of a nolockout provision in a collective bargaining agreement. There was no contention before that court that the issue should be presented to an arbitrator. Furthermore, that case was decided many years before the Supreme Court espoused arbitration as the favored means of resolving disputes arising under collective bargaining agreements.
This court is not called upon either to accept or reject the views of the cited arbitrators on the facts before them. Indeed, it is not our function to pass on this issue on the facts before us, for such a determination is properly within the province of the arbitrator.
The duty of this court is to decide only whether the arbitration clause of the collective bargaining agreement in this case can be reasonably interpreted to cover the dispute. United Steelworkers v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers of America v. Warrior Gulf Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers of America v. Enterprise Wheel Car Corp., 363 U.S. 593, 80 S. Ct. 1358, 4 L.Ed.2d 1424 (1960); Drake Bakeries v. Local 50, Bakery Workers, 370 U.S. 254, 82 S.Ct. 1346, 8 L.Ed.2d 474 (1962). We hold that there is a bona fide dispute over the interpretation of the agreement, and that Article IX clearly provides that such misunderstandings are to go to arbitration. Whether the particular conduct of the employer constitutes a "lockout" is one of the issues that the arbitrator has been empowered to decide.
The decision of the District Court is
Affirmed.