The Star Tribune Co. v. MN Newspaper Guild ( 2006 )


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  •                      United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 05-3955
    ___________
    The Star Tribune Company,            *
    *
    Plaintiff-Appellant,      *
    *     Appeal from the United States
    v.                              *     District Court for the District
    *     of Minnesota.
    Minnesota Newspaper Guild            *
    Typographical Union,                 *
    *
    Defendant-Appellee.       *
    ___________
    Submitted: May 17, 2006
    Filed: June 12, 2006
    ___________
    Before MURPHY, BEAM, and BENTON, Circuit Judges.
    ___________
    MURPHY, Circuit Judge.
    The Star Tribune Company (Tribune) and the Minnesota Newspaper Guild
    Typographical Union (Guild) are parties to a collective bargaining agreement (CBA)
    which covers employees in the news and editorial departments of the Tribune's
    Minneapolis newspaper and identifies the type of work reserved for union members.
    In January 2005 the Guild filed a grievance alleging that the Tribune had breached the
    CBA by publishing expert freelance articles in a section of the paper reserved solely
    for the work of union members. The Tribune denied the grievance, and an arbitrator
    ruled in the Guild's favor. The Tribune brought this action to vacate the award, but
    the district court1 confirmed it and the Tribune appeals. We affirm.
    The Guild is the authorized bargaining representative for employees in the news
    and editorial departments (covered employees) of the Tribune. The Guild and the
    Tribune entered into a CBA in October 2003 which is effective through July 2008.
    The preamble of the CBA describes the work jurisdiction of the union as "all work
    presently being performed for [the Tribune's newspaper] by the [covered] employees"
    and requires such work "be assigned to employees within the Guild's jurisdiction."
    It also states that it is "the intent of the Parties that [provisions of the CBA] shall not
    alter the jurisdiction of the [Union] as established by present practice." Article 24 of
    the CBA allows the Tribune to employ freelance writers for ten categories of material,
    including materials "produced by experts or specialists whose principal support or
    reputation is derived from other than regular newspaper employment."
    Over the past fourteen years Paul Douglas, a well known broadcast
    meteorologist, has written a daily weather column for the Tribune which has been
    published on the back page of Section B (the weather page). In 2004 the Tribune
    published five additional pieces by Douglas elsewhere in Sections A and B
    (collectively known as the news section) of the newspaper. The Guild filed a
    grievance claiming that the publication of these pieces in the news section, other than
    on the weather page, violated the terms of the CBA. The Tribune denied the
    grievance citing Article 24, and the claim went to arbitration.
    At arbitration, the Guild contended that the Tribune had violated the
    jurisdictional language of the preamble to the CBA. The Tribune responded that
    publication of the Douglas articles was consistent with Article 24 of the agreement.
    Arbitrator James Lundberg ruled that the Tribune had violated the terms of the CBA
    1
    The Honorable Paul A. Magnuson, United States District Judge for the District
    of Minnesota.
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    by publishing the five Douglas articles. The arbitrator found that although the Tribune
    had published more than 4,000 articles by freelance experts over the last fourteen
    years, none except the five by Douglas had appeared in the news section of the paper.
    He determined that the past practice of the parties indicates that the jurisdictional
    language of the preamble was meant to prohibit the publication of freelance expert
    pieces in the news section of the paper, except on the weather page.
    The Tribune asked the district court to vacate the arbitration award on the
    ground that it contradicted the plain language of the CBA, and the Guild moved to
    confirm. The district court denied the Tribune's motion and confirmed the award. It
    ruled that under the CBA the arbitrator was required to consider the Article 24
    provisions about the publication of freelance articles in the context of the entire
    agreement, including the preamble. The court further held that the arbitrator properly
    sought to reconcile Article 24 with the jurisdictional language of the preamble by
    determining what the "present practice" of the parties had been with respect to
    freelance articles, that he appropriately looked to extrinsic evidence to make his
    determination, and that the award drew its essence from the CBA.
    The Tribune appeals, urging that the arbitration award be set aside. It
    complains that the award conflicts with and nullifies Article 24 of the CBA. The
    Tribune argues that the plain language of Article 24 permitted publication of the
    freelance articles in question, that there is no conflict between the preamble and
    Article 24, that the award effectively created a location clause limiting the placement
    of freelance articles to certain portions of the newspaper, and that the parties had never
    intended that meaning. It claims that the award is therefore unenforceable and should
    be vacated.
    Although we review the decision of the district court confirming the arbitration
    award de novo, First Options v. Kaplan, 
    514 U.S. 938
    , 947-48 (1995), judicial review
    of an arbitration award is more limited. So long as the arbitrator is "even arguably
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    construing or applying the contract and acting within the scope of his authority," we
    will not disturb the decision even if we are convinced that he committed serious error.
    United Paperworkers Int'l v. Misco, 
    484 U.S. 29
    , 38 (1987); see also Midwest Coca-
    Cola Bottling Co. v. Allied Sales Drivers, 
    89 F.3d 514
    , 517 (8th Cir. 1996). We will
    only vacate an award if the arbitrator ignored or disregarded the plain language of an
    unambiguous contract or nullified a provision of the contract. See Int'l Paper Co. v.
    United Paperworkers Int'l Union, 
    215 F.3d 815
    , 817 (8th Cir. 2000); Dobbs, Inc. v.
    Local No. 614, Int'l Bd. of Teamsters, 
    813 F.2d 85
    , 86 (8th Cir. 1987).
    Article 24 of the CBA permits the Tribune to employ expert freelance writers
    in certain circumstances, but it does not address the section of the newspaper in which
    these works are to be published. The Douglas articles appear to fall within the
    language of this provision, but Article 24 cannot be considered in isolation for it must
    be read in the context of the entire agreement, including the preamble. Sheet Metal
    Workers Int'l Ass'n v. Lozier Corp., 
    255 F.3d 549
    , 551 (8th Cir. 1991). The preamble
    defines the Guild's jurisdiction by reference to "present practice." In order to
    reconcile the jurisdictional language in the preamble and Article 24, the arbitrator had
    to determine what the present practice of the parties had been regarding the
    publication of freelance writers.
    The CBA did not define present practice, and the arbitrator therefore had to
    look at extrinsic evidence to inform his interpretation, including an examination of the
    past practice of the parties to the agreement. See Minneapolis-St. Paul Mailers Union,
    Local No. 4 v. Northwest Publ'n, Inc., 
    379 F.3d 502
    , 510 (8th Cir. 2004); Iowa Beef
    Processors, Inc. v. Amalgamated Meat Cutters & Butcher Workmen of N. Am.,
    AFL-CIO, 
    627 F.2d 853
    , 857 (8th Cir. 1980). The evidence submitted to the
    arbitrator showed that the Tribune had published more than 4,000 expert freelance
    articles on the weather page of section B, but that prior to the publication of these five
    articles by Paul Douglas, the Tribune had never published a freelance expert article
    in any other portion of the news section of the paper. The arbitrator's conclusion, that
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    the placement of these articles elsewhere in the news section of the paper was
    inconsistent with the "present practice" of the parties and thus not permissible, was a
    reasonable interpretation of the CBA.
    The Tribune relies heavily upon Northwest Airlines, Inc. v. Int'l Ass'n of
    Machinists, Dist. Lodge No. 143, 
    894 F.2d 998
    (8th Cir. 1990), to support its
    proposition that the award must be vacated because the arbitrator ignored the plain
    language of the CBA. Northwest is distinguishable from this case, however. The
    arbitrator in that case was interpreting a settlement agreement, not a CBA. See United
    Steelworkers of Am. v. Warrior & Gulf Navigation Co., 
    363 U.S. 574
    , 578 (1960)
    (noting that a CBA "is more than a contract; it is a generalized code to govern a
    myriad of cases which the draftsmen cannot wholly anticipate"). Moreover, the
    provision at issue in Northwest was clear on its face, it was not made ambiguous when
    read in the context of the entire agreement, and it did not require harmonization with
    other provisions. Finally, the arbitrator was not called on to consider the past
    practices of the parties in that case, whereas such reference is explicitly contemplated
    by the preamble here. See Franklin Elec. Co. v. Int'l Union, United Auto. Aerospace
    & Agric. Workers of Am., 
    886 F.2d 188
    , 193 (8th Cir. 1989) (upholding arbitrator's
    use of past practice where contemplated by the CBA). We conclude that Northwest
    is inapposite to the matter before the court.
    Also unpersuasive is the Tribune's argument that the arbitration award nullifies
    Article 24 and creates a location clause not contemplated by the parties. The award
    does not nullify Article 24, but merely requires the Tribune to publish expert freelance
    articles in a manner consistent with the terms of the preamble. Similarly, the arbitrator
    was acting within his authority in deciding that the CBA reveals that the parties
    intended no other provision of the CBA to conflict with the jurisdictional provision
    in the plain and unambiguous language of the preamble. Had the Tribune wished to
    alter the work jurisdiction of the Guild, it could have sought to do so through the use
    of more specific and limiting language in the CBA. In the absence of such language
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    we conclude that the arbitrator's award neither nullified Article 24 nor created a
    location clause in the CBA.
    Although the Tribune argues that the award ignores the plain language of the
    CBA, its appeal is based entirely on the issue of whether the arbitrator properly
    interpreted the CBA. The majority of its argument is spent advancing one
    interpretation of the CBA and the Guild responds in kind, advancing a different
    interpretation, which is the one adopted by the arbitrator. Even if we were inclined
    to agree with the Tribune's interpretation, the parties reserved interpretation of their
    contract for arbitration. In the context of labor disputes "the question of interpretation
    of the collective bargaining agreement is [one] for the arbitrator." United Steelworkers
    of Am. v. Enter. Wheel & Car Corp., 
    363 U.S. 593
    , 599 (1960). By agreeing to
    arbitrate any dispute, both the Tribune and the Guild agreed to accept the arbitrator's
    view of the facts and interpretation of the CBA so long as his interpretation draws its
    essence from their agreement. 
    Id. at 597.
    The award in question here meets that
    criteria.
    For these reasons, we affirm the order of the district court confirming the
    arbitration award.
    ______________________________
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