The opinion of the court was delivered by: SWEET
This action results from a dispute between the New York Times Company ("Times") and the Newspaper and Mail Deliverers' Union of New York and Vicinity (the "NMDU") arising out of the manning on the presses in the Times' Carlstadt, New Jersey facility. Prior to January 21, 1979 the conveyor belt on the presses at the Carlstadt facility was manned by no less than four employees. Carlstadt was used for the production of various advance sections of the Times' Sunday edition, but not for the production of daily papers, which was done at the Times' facility at 43rd Street in Manhattan. On January 22, 1979, the Times attempted to initiate production of daily papers, with reduced manning, at the Carlstadt presses. NMDU considered such reduction in manning a breach of its collective bargaining agreement with the Times. On the evening of January 22, 1979 Herbert Haber, who had in the past served as Impartial Chairman of the Appeals Board, reviewed the situation at Carlstadt and issued an interim arbitration award, the validity of which is in dispute, directing that the NMDU continue working with one man on each conveyor belt. The NMDU refused and engaged in a work stoppage which has continued to date.
On January 23, 1979 the Times commenced an action in the Supreme Court of the State of New York, County of New York seeking, Inter alia, preliminary injunctive relief enjoining NMDU from continuing its strike at the Carlstadt facility. On January 25, 1979 Justice Oliver C. Sutton issued an order enjoining the NMDU from interrupting normal production and distribution of the New York Times, from violating the no-strike clause of the collective bargaining agreement and from violating the interim arbitration award issued by Herbert Haber. On January 26, 1979 the Supreme Court action was removed to this court pursuant to 28 U.S.C. § 1441.
On January 29, 1979 this court signed an order directing that on February 2, 1979 the NMDU show cause before this court why an order should not be issued enjoining the NMDU from engaging in a work stoppage at Carlstadt and directing the NMDU to proceed to arbitration with respect to the manning dispute.
On February 2, 1979 argument was had; this court's determination is embodied herein.
The respective rights of the parties arise out of a collective bargaining agreement (the "Agreement") entered into on November 3, 1978, with an effective date as of March 31, 1978. The Agreement consists of the collective bargaining agreement between the Times and the NMDU entered into in 1975, together with certain changes thereto. The Agreement left certain matters unresolved, some of which were dealt with in a signed letter agreement (the "Letter Agreement") dated November 3, 1978. The Times does not dispute the validity of the Letter Agreement. The differences between the parties arise out of conflicting interpretations of the Agreement and the effect of the Letter Agreement thereon.
Paragraphs 16-M.3 and 16-M.4 of the Agreement provide as follows:
16-M.3. With the exception of a layoff, as hereinbefore provided in Section 3-D, and except in case of discharge of employees, no change in condition shall be put in effect by either party to this contract without the prior consent of the other. In the event that such change is placed in effect, either party may file formal written demand for a hearing before the Appeals Board without resort to the Joint Standing Committee and said Appeals Board shall be convened immediately and hear and determine the issue within two (2) weeks from the date of the filing of such demand.
16-M.4. In the event a change shall have been made and shall have been in effect for a period of more than thirty (30) days, then the change may be continued in effect pending a determination by the Appeals Board. If the change has not been in effect for more than thirty (30) days, the Union, immediately after filing a written notice, may request the chairman designated to serve on the Appeals Board to direct the Publisher who has made the change to discontinue it and to restore the prior existing conditions pending a full hearing by the Appeals Board and its determination, and the Publisher upon receipt of such notice from the chairman shall thereupon immediately restore the prior existing conditions.
Under these provisions, it appears that there was no duty on the Times to proceed to arbitration prior to instituting the change despite the precatory language of the first sentence of 16-M.3. Once instituted, it was incumbent upon NMDU to seek arbitration in the event it objected to the change.
NMDU asserts that the Letter Agreement precludes the Times from making the change in manning at Carlstadt. The Letter Agreement provides:
It is hereby mutually agreed:
(4) The manning on presses in Carlstadt facility shall remain the same pending a meeting that may be requested by either side.
The Times, on the other hand, asserts that any dispute arising out of the Letter Agreement is itself arbitrable pursuant to the Agreement, which provides, in pertinent part, as follows:
16-A. All grievances, differences and disputes arising out of the interpretation or application of this agreement which cannot be settled at the plant level are to be referred, as hereinafter provided, to the Joint Standing Committee and/or the Appeals Board for adjudication.
16-D. In the event that the Joint Standing Committee is unable to resolve the issue, or fails to act within two (2) weeks after submission, the matter shall then be automatically referred to the Appeals Board which shall consist of the four (4) members of the Joint Standing Committee and a chairman ...