On certified appeal from the Law Division to the Appellate Division of the Superior Court.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Wachenfeld, Burling and Jacobs. For reversal -- None. The opinion of the court was delivered by Heher, J.
[22 NJ Page 421] The defendant union appeals from a summary judgment of the Law Division of the Superior Court directing arbitration under N.J.S. 2 A:24-3 of an issue arising out of the refusal of the union to permit the Newark Morning Ledger Company, in the publication of the Newark Star-Ledger,
to use but one of its employees in the operation of three teletypesetter casting machines; and the resolution of the issue, in turn, depends upon the meaning of a collective bargaining agreement made between the parties on April 27, 1955, to run for a term ending April 26, 1958, providing, inter alia, paragraph 3(a), that "When additional teletypesetter casting machines are introduced, the manning of casting units shall be negotiated, but at no time during the life of this contract shall a publisher request that a journeyman tend more than three casting units"; and also that, paragraph 26, a "Grievance Committee of four members shall be maintained," consisting of two members selected by the publishers and two selected by the union, for the "settlement" of "any dispute (except as otherwise herein provided) arising under this contract between a signatory publisher and the Union, if such dispute cannot be settled by conciliation between the Union and the Publisher involved," the committee's "decision" to be "final and binding on all parties to the dispute," provided that if the committee shall fail to reach an agreement within ten days from the date of the submission of the dispute, the members of the committee shall appoint "a fifth and impartial member to act as chairman," and the "decision of the majority" shall be "final and binding" but shall not "abridge the fundamental rights reserved by and to the signatory publisher and the Union," and should the four members "fail to agree on a chairman within seven days," the selection shall be made by the "presiding judge of the Superior Court from a list of an equal number of names to be submitted by the Union and the Publishers' representatives," and further that "local union laws not affecting wages, hours or working conditions, and the 1955 General Laws of the International Typographical Union, shall not be subject to arbitration."
The issue concerns the manning of the "comparatively new" teletypesetter casting machine. The union would not allow the operation of three such machines by one employee of the plaintiff publisher. It puts the question thus: "By this (the "manning") we mean that the employer wants
to compel a printer to 'man,' or operate, three machines, while the union, fearful of a substantial increase in individual workload and an equally substantial decrease in job opportunities, is strongly opposed to the operation by one man of more than one machine."
The Superior Court, Judge Foley sitting, found there was "no genuine issue as to any material fact," and "no need for a jury trial as to the issues," and the union had failed in its contractual duty to submit the issue to arbitration; and judgment proceeded accordingly.
The union now says that the question of "the manning of these machines" was "very thoroughly thrashed out during the negotiations leading up to the execution of the current collective bargaining agreement," and it "was prepared to offer full evidence concerning the negotiations, and concerning the fact that this issue was the principal ground of dispute between the parties before its final, but merely temporizing, solution as expressed by the penultimate paragraph of paragraph 3(a) of the contract"; and the "true issue" is stated to be the "meaning of the word 'negotiated,' as here used, and in the context of all surrounding circumstances," said to have special significance "in view of the specific exception made by the grievance and arbitration clause of the contract," i.e. the parenthetical clause of paragraph 26, "except as otherwise herein provided"; that the "penultimate paragraph of paragraph 3 (a), * * * requiring 'negotiation' of the particular issue, is the only portion of the contract which can possibly be construed as 'providing otherwise' than that this issue should be arbitrated"; that it is obvious from this paragraph, "and certainly would have been clear from the testimony if it had been accepted, that this paragraph was adopted by the parties merely as a stopgap," as a "means of avoiding further dispute at that time, so as to enable the completion of the contract by leaving over for later argument, for later 'negotiation,' this problem that was holding up the contract as a whole"; and that subsequent to the execution of the agreement, "Ledger brought in additional teletypesetters, and tried to require one employee to
operate three machines," and the union's refusal framed the issue which resulted in this proceeding.
These are the points made: (a) By the "clear terms" of the contract, "the issue of the manning of teletypesetter machines was not subject to arbitration, but only to negotiations"; (b) Even if it were determined that the contract "did not unambiguously exempt this issue from reference to the grievance committee, there was at least sufficient doubt or ambiguity to require" the admission of evidence of "surrounding circumstances to clarify the intent and meaning of the parties"; and (c) On the latter hypothesis, "the intent and meaning of the parties in the use of the words of the contract were questions of fact," and it was error to deny the union's demand for a jury trial under N.J.S. 2 A:24-3.
The arbitration clause of the contract, paragraph 26, is clear and explicit in its terms, devoid of all ambiguity calling for explanatory evidence aliunde. All disputes "arising under this contract" are made subject to arbitration, save as "otherwise" therein provided. The argument is that there are "only two issues in the entire contract which are, by the contract terms, withheld from the provisions or coverage of the arbitration clause": one, "the unnecessary, and superfluous provision in the next-to-the-last paragraph of paragraph 26," excluding from arbitration the "local union laws not affecting wages, hours or working conditions, and the 1955 General Laws" of International; "the other, and therefore the only real issue withheld from the effect of the arbitration clause is the penultimate clause of paragraph 3a" providing that when "additional teletypesetter casting machines" are introduced, "the manning of casting units shall be negotiated "; and that these latter words mean "expressly and clearly that this matter will be submitted to collective bargaining, and not to arbitration." It is said that ...