UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


WA MAILERS UN #29

v.

WA POST


00-7045a

D.C. Cir. 2000


*	*	*


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


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 




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n 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,


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


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 




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n 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




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n 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


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 




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n 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 


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


So ordered.




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n 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).