On Appeal from the United States District Court for the District of New Jersey D.C. Civil No. 85-1089
Before HUNTER and MANSMANN, Circuit Judges and POLLAK District Judge*fn*
The question presented is whether the district court erred in modifying an arbitral award that was intended to resolve a dispute arising under a collective bargaining agreement. The question arises in the following way:
Appellant is Newark Typographical Union Local 103, collective bargaining representative of the composing room employees of appellee Newark Morning Ledger. The dispute between the parties is over the amount of weekly wage increase (and attendant cost-of-living increase) composing room employees were entitled to in 1984 pursuant to the 1983 collective bargaining agreement between Local 103 and The Ledger.
The 1983 collective bargaining agreement -- which amends and extends to 1994 an agreement originally entered into in 1970 -- undertakes to tie the annual wage increase of The Ledger's composing room employees to those received by comparable employees of daily newspapers in New York City. Section 7-06 of the agreement specifies that:
the increases under this Contract shall be the total value of the weekly increases in wages and cost-of-living adjustments received by the New York Typographical Union No. 6 under its agreement with the Publishers' Association of New York City.
And Section 7-09 provides:
In the event that the Publishers' Association of New York City is disbanded or ceases to negotiate for more than one daily newspaper in New York City, then the increases under this contract shall be the average increases received by the New York Times, New York News and New York Post, to the extent that there are increases granted to any employees under said contract.
The negotiations conducted by Local 6 of the New York Typographical Union achieved the following results: Composing room employees of The News. The Post and The Times all received a weekly wage increase of $38. In addition, employees of The News and The Post were promised a lump-sum share of profits payable by April 10, 1985; in lieu of profit-sharing, Times' employees received in 1984, on top of the $38 wage increase, a weekly increment of $25.93 (plus $.72 cost-of-living) which was, according to President Powers of Local 6, "a bonus of a 4% wage increase" as "an incentive for an early agreement."
Against this background, Local 103 advised The Ledger that the proper 1984 weekly wage increase was $46.88: This figure appears to have been the sum of $38 (the wage increase common to all three New York dailies) plus one-third of The Times' "bonus" of $25.93 and one-third of The Times' $.72 cost-of-living increment.
The Ledger took the position that only a $38 increase was called for, since The Times' added $25.93 was "'in lieu of a profit sharing program negotiated at the News and Post' . . . . these monies represent the equivalent of a diversion from a profit sharing plan to wages, and are not 'increases under the contract' received by the New York Times."
Local 103 thereupon filed a grievance against The Ledger, and the matter proceeded to arbitration. At the outset of the arbitration, Local 103 announced that it had reconsidered its position: What its members were entitled to (in addition to the $38 to which The Ledger assented) was the entire $25.93 and $.72 in cost-of-living received by The Times' composing room employees.
En route to fashioning his award, the Arbitrator addressed and decided three predicate issues:
First, the Arbitrator denied The Ledger's motion to dismiss the grievance based on Local 103's last-minute change in position: The Ledger had not sought a continuance, and had made no showing of prejudice.
Second, the Arbitrator rejected The Ledger's contention that the $25.93 received by The Times employees was not a wage increase but a bonus. "A bonus," wrote the Arbitrator, "is something that is given above what is due. It is a short term giving; it is [a] one shot deal. After it is paid, what was added to reverts to what was originally due." The Post and News employees "received monies above what was due, payable in a lump sum on or before April 10 of the following year after the Plan year. They received a bonus." By contrast:
New York Times employees received a permanent change in the "Wage Rate and Cost of Living Adjustment provisions of the Contract and Special Agreement." A permanent change in wages and gross pay paid at the end of each pay period. It cannot be reduced or increased without further bargaining. The New York Times employees received a wage increase. They did not received [sic] a bonus.
Why they received this increase is immaterial. It does not matter if it was in lieu of what someone else received. It does not matter if it was for early signing of the contract. ...