Chicago Typographical Union No. 16, Plaintiff-appellee, v. Chicago Newspaper Publishers' Association, News Groupchicago, Inc., and Chicago Tribune Company,defendants-appellants, 853 F.2d 506 (7th Cir. 1988)

The Chicago Newspaper Publishers' Association ("CNPA"), News Group Chicago, Inc., and the Chicago Tribune Co.,¹  appeal an adverse judgment ordering them to arbitrate certain contract disputes with the Chicago Typographical Union No. 16 (the "Union"). For the reasons which will appear, we affirm.

CNPA and the Union entered into a collective bargaining agreement (the "Main Agreement") that became effective on January 15, 1979, and was to expire on January 14, 1983. They were also parties to a Supplemental Agreement, negotiated and signed in 1975. One of the purposes of the Supplemental Agreement is to "provide employment guarantees and other benefits for journeymen and apprentices." Main Agreement at 61. (The Main Agreement is attached to the Union's Complaint as Appendix A.) The Supplemental Agreement is intended to be in force indefinitely and is incorporated into the Main Agreement and all future collective bargaining agreements through the following clause:

This Supplemental Agreement shall be ongoing and part of all future collective bargaining Agreements and shall not be subject to amendment except by mutual consent between the parties.

Id. at 82.

The Main Agreement contains a broad arbitration clause covering any "disagreement as to interpretation or enforcement of the terms of this Agreement." Id. at 28. The Supplemental Agreement contains arbitration provisions applicable to job security disputes which might arise as a result of a "severe economic downturn," id. at 64, but it contains no broad arbitration clause beyond that. The incorporation of the Supplemental Agreement into the Main Agreement, however, suggests that disputes involving the interpretation or enforcement of the Supplemental Agreement may be governed by the grievance and arbitration provisions of the Main Agreement.² 

As the Main Agreement approached expiration, the parties began negotiating a new collective bargaining agreement. These negotiations extended beyond the January 14, 1983 deadline, but the Main Agreement continued in force. Section 9 of the Main Agreement specifically provides for the continuance in force of the existing terms and conditions of employment should negotiations for a new contract extend beyond the old contract's expiration date.³  The Main Agreement further provides that its terms should remain in effect until a new agreement is negotiated or until "other action" is taken by either the Union or CNPA. Neither of these events terminating the old agreement had transpired before the occurrences giving rise to the present dispute. The Main Agreement also provides in a final clause of section 9 that, "Nothing herein shall be considered as obligating either party to arbitrate differences respecting an Agreement to be effective after the expiration of this contract." Main Agreement at 13.

In the fall of 1984, CNPA submitted to the Union its "final offer" for a new collective bargaining agreement. This offer included three proposals which, in the Union's view, violated certain specific guarantees of the Supplemental Agreement of 1975.⁴  On January 8, 1985, the Union notified CNPA that it wanted the dispute resolved through the grievance and arbitration provisions of the still-effective Main Agreement. On January 15, 1985, CNPA, relying on the Main Agreement's "no obligation to arbitrate" clause (the final clause of section 9), responded that it would not submit the dispute to arbitration. It unilaterally instituted the proposed changes and by this "other action" terminated the extension of the Main Agreement.

The Union filed suit in district court seeking an order to compel arbitration of the dispute or, alternatively, resolution of the dispute by the court pursuant to its jurisdiction over collective bargaining agreements. The court, granting the Union's motion for partial summary judgment, ordered the parties to submit their dispute to arbitration.

CNPA argues that the district court misapplied the arbitration principles of AT & T Technologies, Inc. v. Communication Workers of America, 475 U.S. 643, 648-51, 106 S. Ct. 1415, 1418-20, 89 L. Ed. 2d 648 (1986). In AT & T, the Supreme Court reaffirmed four principles, established in the Steelworkers Trilogy,⁵  to guide courts in determining whether a labor dispute is arbitrable. Under the first principle, the parties must have contracted to submit the grievance to arbitration before arbitration will be ordered. The second principle requires that the court determine whether the contract provides for arbitration of the particular grievance in question. The third principle demands that, while determining whether the dispute is arbitrable, the court not decide the merits of the grievance. Thus, even if the union's grievance appears to be frivolous, the issue whether the employer has violated the collective bargaining agreement must be referred to the arbitrator. Finally, if the contract contains an arbitration clause, a presumption of arbitrability arises. The court should not decline to order arbitration "unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute." Id. at 650, 106 S. Ct. at 1419 (quoting United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83, 80 S. Ct. 1347, 1353, 4 L. Ed. 2d 1409 (1986)).

CNPA urges that the fourth principle was misapplied by the district court because arbitration of the present dispute is precluded by the final clause of section 9 of the Main Agreement, supra p. 508, which excuses the parties from submitting new contract terms to arbitration. Thus, CNPA insists that section 9 contains an express agreement by the Union to exclude the particular grievances at issue here from arbitration.

The district court rejected CNPA's argument, holding that section 9 applies only to disputes involving future agreements, not to disputes involving proposals for future agreements. CNPA contends that the district court's construction of section 9 renders the exclusionary language superfluous. According to CNPA, the final clause of section 9 has meaning only if interpreted as expressing the parties' intent to reach new contract terms through negotiation rather than through arbitration. Thus, CNPA argues persuasively that the clause precludes "interest arbitration"⁶  and that the district court's order forces CNPA to submit to interest arbitration in violation of the clause.

We agree with CNPA that the last clause of section 9, which expressly frees both sides from arbitrating disputes over "an Agreement to be effective after the expiration of [the Main Agreement]," Main Agreement at 13, precludes interest arbitration. Section 9 describes the procedure for negotiating a new collective bargaining contract and expresses the parties' intention to negotiate, rather than to arbitrate, the terms of this new contract. See supra note 3. Thus, the final clause, precluding interest arbitration, is consistent with and furthers the overall purpose of section 9.⁷ 

We must decide, therefore, whether the Union is seeking interest arbitration. CNPA argues that it is, characterizing the Union's grievance as one over the appropriate terms of a new collective bargaining agreement. The Union contends, however, that it seeks arbitration of the question whether specific guarantees that it won in the Supplemental Agreement of 1975 have been violated by CNPA.

Carefully avoiding a ruling on the merits of the Union's claim, we agree with the Union that the dispute is not simply over the parties' proposals for a new collective bargaining agreement. Rather, the Union is seeking to protect the existing rights of certain employees under the Supplemental Agreement of 1975. In the Union's view, CNPA sought to change those rights without the Union's consent and, thus, violated the express terms of the Supplemental Agreement. When the Union filed its grievance on January 8, 1985, both the Supplemental and the Main Agreements were in full force.⁸  The Union correctly followed the Main Agreement's grievance and arbitration procedures, which the parties had created to resolve "difference [s] as to the interpretation or enforcement" of the existing agreement. Main Agreement at 28. Thus, because the present dispute involves the parties' rights under an existing collective bargaining agreement that contains a broad arbitration clause, we conclude that the dispute is arbitrable.

The outcome of this case turns on the continuance in force of the obligations of the Supplemental Agreement. The parties agreed to incorporate the lifetime job guarantees found in the Supplemental Agreement into all their future collective bargaining agreements. Hence, disputes over interpretation or enforcement of these rights are susceptible to grievance arbitration. Had guarantees instead been limited to the life of the Main Agreement, a proposal to alter these guarantees in a new collective bargaining agreement would likely fall under the rubric of interest arbitration. But these are not the circumstances before us. The contractual guarantees in the Supplemental Agreement are of a continuing nature and are supported by an underlying collective bargaining agreement. Essentially, the Union sought to arbitrate disputes involving the interpretation or enforcement of those guarantees. Thus, the district court's order that the dispute be arbitrated is

AFFIRMED.