Winston-Salem Mailers Union 133, Cwa v.  MEDIA GENERAL OPERATIONS, INCORPORATED, d/b/a Winston-Salem Journal

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 WINSTON-SALEM MAILERS UNION 133,
CWA,
Plaintiff-Appellee,
v. No. 02-1145 
MEDIA GENERAL OPERATIONS,
INCORPORATED, d/b/a Winston-Salem
Journal,
Defendant-Appellant. 
Appeal from the United States District Court
for the Middle District of North Carolina, at Winston-Salem.
N. Carlton Tilley, Jr., Chief District Judge.
(CA-00-737-1)
Argued: December 5, 2002
Decided: January 15, 2003
Before KING, Circuit Judge,
Henry M. HERLONG, JR., United States District Judge
for the District of South Carolina, sitting by designation,
and James P. JONES, United States District Judge for the
Western District of Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Louis Michael Zinser, THE ZINSER LAW FIRM, P.C.,
Nashville, Tennessee, for Appellant. John David James, SMITH,

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JAMES, ROWLETT & COHEN, L.L.P., Greensboro, North Carolina,
for Appellee. ON BRIEF: Glenn E. Plosa, THE ZINSER LAW
FIRM, P.C., Nashville, Tennessee, for Appellant.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Media General Operations, Inc. ("Media General") owns several
newspapers, including the Winston-Salem Journal (the "Journal"), a
daily newspaper published in Winston-Salem, North Carolina. In
1997, Media General entered into a collective bargaining agreement
(the "Agreement") with the Winston-Salem Mailers Union Local 133
(the "Union"),1 and this action arises out of Media General’s refusal
to arbitrate several grievances brought by the Union. In August of
2000, the Union filed suit in the Middle District of North Carolina,
seeking to compel arbitration. The district court awarded summary
judgment to the Union in December of 2001. Winston-Salem Mailers
Union No. 133, CWA v. Media General Operations, Inc., Memoran-
dum Opinion, No. 1:00CV00737 (M.D.N.C. Dec. 28, 2001) (the
"Opinion"). Media General has appealed, and we possess jurisdiction
pursuant to 28 U.S.C. § 1291. As explained below, we affirm.
1It appears that Piedmont Publishing Company, Inc. ("Piedmont"), a
subsidiary of Media General, was the actual signatory to the Agreement.
Accordingly, the Union originally named Piedmont as the defendant in
this action. In responding to the complaint, however, Media General
insisted that Media General Operations, Inc. d/b/a Winston-Salem Jour-
nal — not Piedmont — was the proper defendant. And it is Media Gen-
eral that has appealed the district court’s summary judgment award.
Therefore, for the purposes of this decision, we refer to Media General
as the entity bound by the Agreement.
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I.
The Union is the local affiliate of the Communication Workers of
America ("CWA"), and it is the bargaining representative of all full-
time mailers employed by the Journal. Media General both publishes
the Journal and prints and distributes other publications at the Jour-
nal’s Packaging and Distribution Department (the "Mailroom") in
Winston-Salem.
In 1997, the Union negotiated the Agreement with Media General.2
The Agreement, which took effect on August 31, 1997, and expired
on August 12, 2000, contains provisions covering various terms and
conditions of employment. It also includes a broad grievance and
arbitration clause, which provides:
Section 18, Joint Standing Committee . . . In the event that
differences arise that cannot be settled [informally], then
such disputes shall be submitted in writing within twenty
(20) days of the incident to a Joint Standing Committee
composed of two representatives of the Company and two
from the Union. . . . To the Joint Standing Committee shall
be referred all controversies growing out of the discharge of
a member of the Bargaining Unit, all questions which may
arise as to the construction to be placed on any of the
clauses or any part of this Agreement, or any alleged viola-
tion thereof.
Between January and August of 2000, Media General refused to arbi-
trate four grievances filed by the Union pursuant to Section 18 of the
Agreement.
A. The PDS Grievance
On January 12, 2000, the Union filed a grievance charging Media
General had assigned bargaining-unit work to non-bargaining-unit
employees. In particular, the Union alleged that Media General had
breached the Agreement by assigning mailing and labeling work —
2The CWA is not party to the Agreement.
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specifically, for the "Millennium Special," "K-12," and "Prime-Time"
mailings — to Piedmont Delivery Service ("PDS"), a Media General
subsidiary that labels and distributes advertising materials for various
businesses, including Media General. The employees of PDS are not
represented by the Union.
The "Millennium Special" consisted of the December 31, 1999, and
the January 1, 2000, editions of the Journal. These editions were not
"live" editions, i.e., they were not sold on the calendar date of their
printing. Instead, they were publications sold in the beginning of Jan-
uary 2000 to capitalize on the market for millennium memorabilia.
"K-1" and "Prime-Time" are specialty publications printed by Media
General on its presses in Winston-Salem, stacked on pallets by its
Mailroom employees, and then trucked to PDS for labeling and distri-
bution by PDS employees. Although the Union was aware of this
labeling and distribution system when the Agreement was negotiated,
the Union never objected to it.
Media General responded to the PDS grievance by insisting that it
was not timely filed and that, in any event, it was not subject to arbi-
tration because the Agreement, in a provision called the Letter of
Understanding, specifically allowed Media General to assign work to
PDS employees, other than work related to "live" editions of the Jour-
nal. Accordingly, Media General refused to arbitrate the PDS griev-
ance.
B. The Karen Clark Grievance
On May 26, 2000, the Union filed a grievance challenging Media
General’s discipline of employee Karen Clark. It charged that Media
General had violated established past practice with respect to disci-
plinary procedures when it failed to inform either Ms. Clark or a
Union representative of the nature of a disciplinary meeting and of
Ms. Clark’s right to have a Union representative present during that
meeting.3
3Media General notes that, on January 24, 2000, it issued a memoran-
dum to put the Union on notice that employees would be entitled to
union representation in meetings with management only to the extent
required by NLRB v. J. Weingarten, Inc., 420 U.S. 257 (1975). Under
Weingarten, an employer may not deny an employee’s request for union
representation at an investigatory interview. The Union did not grieve
this memorandum, nor did it file any proceeding with the NLRB.
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In 1999, Ms. Clark was fired by Media General for absenteeism.
The Union grieved the discharge, and an arbitrator ordered her rein-
stated. On May 10, 2000, shortly after Ms. Clark’s return to work, her
supervisor, Kevin Garris, called her to his office and gave her a letter
of disciplinary warning about her attendance record. It was this disci-
plinary meeting that the Union grieved on May 26, 2000. Media Gen-
eral responded to the Clark grievance by indicating that it would be
willing to arbitrate the substance of its disciplinary action against Ms.
Clark, but it refused to arbitrate the dispute over disciplinary proce-
dure, asserting that the rights of employees to representation at such
disciplinary proceedings derives from the National Labor Relations
Act, not from the Agreement.
C. The June Que Pasa Grievance
On June 28, 2000, the Union filed a grievance claiming that Media
General violated the Agreement when, on June 21, 2000, it had used
non-bargaining-unit employees to perform bargaining-unit work on
company property. Specifically, the work involved labeling, placing
inserts in, and the mailing of an edition of the Que Pasa newspaper,
an independently-owned Spanish language publication printed by
Media General on a contract basis. Que Pasa wanted to add an insert
to the June 21, 2000, edition of its paper, and it asked Media General
to allow it to use its own employees to place those inserts into Que
Pasa on Media General property (outside of the Mailroom) in
Winston-Salem. Media General maintains that it agreed, "[a]s a cour-
tesy to a valued customer."
Media General responded to the June Que Pasa grievance on July
10, 2000, contending that the grievance was not substantively arbitra-
ble; however, Media General this time offered to meet with the Union
to discuss the matter further. The Union asserts that, in this meeting,
Media General agreed to arbitrate the grievance, but that it later
reneged. Media General maintains that it refused to arbitrate because
the Agreement contains no provision compelling arbitration of work
assignments that Que Pasa gives to its own employees.
D. The August Que Pasa Grievance
On August 12, 2000, the Union filed a new grievance, charging
that Media General had violated the Agreement when, on August 2,
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2000, it had again used non-bargaining-unit employees to stack, place
inserts in, and mail an edition of the Que Pasa newspaper, after the
paper had been printed on Media General presses. By letter of August
26, 2000, Media General denied the claims made in the August Que
Pasa grievance and refused to arbitrate it.
Following Media General’s refusal to arbitrate the four grievances,
the Union sought the assistance of the CWA in its effort to compel
arbitration.
II.
On August 8, 2000, the Union filed this action against Media Gen-
eral in the Middle District of North Carolina, pursuant to § 301 of the
Labor Management Relations Act (the "LMRA"), 29 U.S.C. § 185. In
its complaint, the Union sought to compel Media General to arbitrate
the PDS grievance. On September 7, 2000, the complaint was
amended to add three additional claims for relief in order to compel
arbitration of the Clark grievance, the June Que Pasa grievance, and
the August Que Pasa grievance. Although the Union had sought help
from its international affiliate to compel arbitration of the grievances,
it had not expressly authorized the filing of the Amended Complaint,
which the CWA filed on behalf of the Union. The Union adopted the
Amended Complaint, however, and the district court awarded sum-
mary judgment to the Union on all four of its claims. Opinion at 1.
Media General timely noticed this appeal, and we possess jurisdiction
pursuant to 28 U.S.C. § 1291.
III.
We review de novo a district court’s award of summary judgment.
See Taylor v. McDuffie, 155 F.3d 479, 482 (4th Cir. 1998). Summary
judgment is appropriate when, taking the facts in the light most favor-
able to the non-moving party, there is no genuine issue of material
fact. See Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-48 (1986).
IV.
The first issue raised on appeal by Media General is whether the
district court erred in awarding relief on the Second, Third, and
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Fourth claims for relief because the CWA had filed the Amended
Complaint without the prior authorization of the Union. According to
Media General, "[i]t is axiomatic that only a party to a CBA can com-
pel arbitration pursuant to the CBA’s arbitration clause." Because the
CWA was not a party to the Agreement, says Media General, the
CWA cannot compel arbitration. The district court concluded that,
because the Union was the sole plaintiff, it properly sought to compel
arbitration by adopting the Amended Complaint. Opinion at 8-13.
The Union had delegated authority to the CWA to act on its behalf
in deciding how to resolve the disputes over arbitration. Significantly,
Media General has cited no authority to support its contention that a
court can look behind a complaint to assess who may have really
instigated the lawsuit, or who may have provided the legal resources
to file an amended complaint. Our precedents, in fact, suggest a con-
trary rule. Parks v. Int’l Bhd. of Elec. Workers, 314 F.2d 886, 906 (4th
Cir. 1963) ("[I]t does not lie within the authority of a court to give
effect to its general preferences between international power and local
autonomy in matters of collective bargaining."). It is clear that a local
union is entitled to delegate authority to an international union to act
on its behalf. See United Elec., Radio & Mach. Workers of Am. v.
NLRB, 986 F.2d 70, 75 (4th Cir. 1993) (noting that international
union can aid local union during collective bargaining process); see
also Advanced Constr. Servs., Inc. v. NLRB, 247 F.3d 807, 812 (8th
Cir. 2001) (noting that a union "may delegate bargaining authority to
whomever it wants") (internal quotations omitted). We are thus
unable to conclude that the district court erred in ruling that the
Amended Complaint was properly filed.
V.
In considering the issues of arbitrability raised by Media General,
it is important to keep in mind that "arbitration is a matter of contract
and a party cannot be required to submit to arbitration any dispute
which he has not agreed to submit." United Steelworkers of Am. v.
Warrior & Gulf Navigation Co., 363 U.S. 574, 582 (1960). However,
it is also "well settled law that federal policy favors arbitration of
labor disputes, and that a presumption of arbitrability is to be applied
in cases of ambiguity or doubt." Lynchburg Foundry Co. v. Pattern-
makers League of N. Am., 597 F.2d 384, 386 (4th Cir. 1979) (internal
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quotations omitted). In deciding issues of arbitrability, we will not
address the merits of the underlying claim, even if that claim appears
to be frivolous. AT&T Techs., Inc. v. CWA, 475 U.S. 643, 649-50
(1986). Furthermore, we leave all questions concerning the scope of
an arbitration agreement to the arbitrator, "unless it can be said with
positive assurance that the arbitration clause is not susceptible of an
interpretation that covers the asserted dispute." Id. at 650 (internal
quotations omitted).
A.
Media General contends that the PDS grievance is not substan-
tively arbitrable because PDS employees handled work outside the
scope of the Agreement. According to Media General, PDS employ-
ees handled only special publications rather than "live" editions of the
Journal, and the Agreement contains a specific provision, called the
Letter of Understanding, that allows Media General to assign distribu-
tion work to PDS employees. The Union responds that the PDS griev-
ance falls within the scope of the Agreement because Media General
assigned bargaining-unit work to non-bargaining-unit employees.
The district court concluded that any dispute about whether the
Agreement applies to special publications should be submitted to
arbitration. Opinion at 17-18. Further, the court decided that any
questions on the interpretation of the Letter of Understanding between
the Union and Media General, regarding the assignment of work to
PDS employees, should be decided by the arbitrator. Id. at 18-19.
The district court was correct in ruling that any dispute over the
interpretation of the Agreement should be submitted to arbitration. In
the Steelworkers Trilogy,4 the Supreme Court made clear that doubts
as to arbitrability should be resolved in favor of arbitration and that
ambiguities about the scope of a collective bargaining agreement
should be left to an arbitrator. As the Court stated:
4The Steelworkers Trilogy is comprised of the following three
Supreme Court decisions: Steelworkers v. Enterprise Wheel & Car
Corp., 363 U.S. 593 (1960); Steelworkers v. Warrior & Gulf Navigation
Co., 363 U.S. 574 (1960); and Steelworkers v. American Manufacturing
Co., 363 U.S. 564 (1960).
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The function of the court is very limited when the parties
have agreed to submit all questions of contract interpretation
to the arbitrator. It is confined to ascertaining whether the
party seeking arbitration is making a claim which on its face
is governed by the contract. Whether the moving party is
right or wrong is a question of contract interpretation for the
arbitrator.
Steelworkers v. Am. Mfg. Co., 363 U.S. 564, 567-68 (1960). It is for
the arbitrator to decide whether the Letter of Understanding entitles
Media General to assign mailing and labeling work to PDS employ-
ees. Furthermore, it is unclear whether the Agreement covers all of
Media General’s publications, or whether it applies only to "live" edi-
tions of the Journal. We agree with the district court that these ques-
tions should be submitted to arbitration.
B.
Media General next contends that the Clark grievance is not sub-
stantively arbitrable because it is premised, not on the terms of the
Agreement, but rather on rights guaranteed by § 301 of the LMRA.5
The Union responds that Media General’s past practices form an
implicit part of the Agreement, and that it is the Agreement, rather
than the Labor Management Relations Act, that provides the founda-
tion for the Clark grievance. The court concluded that it could be
argued that past practices formed an implicit part of the Agreement,
and it decided on this basis that the Clark grievance should also be
submitted to arbitration. Opinion at 20-21.
The Clark grievance is premised on Media General’s past practices,
and it is therefore substantively arbitrable. An employer’s past prac-
tices can rise to the level of an implied term of a collective bargaining
agreement. See Bonnell/Tredegar Indus., Inc. v. NLRB, 46 F.3d 339,
5Media General also asserts that the Union failed to exhaust its admin-
istrative remedies in seeking resolution of the Clark grievance. It bases
this contention on the fact that the Union never asked for a Joint Stand-
ing Committee meeting or for arbitration. However, questions of proce-
dural arbitrability are matters for arbitrators rather than the courts. John
Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 557 (1964).
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344 (4th Cir. 1995) ("An employer’s established past practices can
become an implied term of a collective bargaining agreement."). In
most situations, courts look to past practices to fill gaps in a collective
bargaining agreement or to interpret the express terms of such an
agreement. See, e.g., CSX Transp., Inc. v. United Transp. Union, 29
F.3d 931, 936 (4th Cir. 1994) ("If the parties’ written agreement is
ambiguous or silent regarding the parties’ intent, the arbitrator may
use past practices and bargaining history to fill the gap in the written
contract.") (internal quotations omitted). Here, the Agreement does
not expressly address the rights of bargaining-unit members in disci-
plinary proceedings, so the issue is not simply whether past practices
can be used as interpretive tools. The Union alleges that past practices
provide an independent source of substantive rights. Nevertheless, the
issue remains one of contract interpretation, which is properly left to
the arbitrator. Raysbestos-Manhattan, Inc. v. Amalgamated Clothing
& Textile Workers Int’l Union, 545 F. Supp. 387, 390-94 (D.S.C.
1982) (recognizing that arbitrator may decide whether past practice
was an implicit part of collective bargaining agreement); cf. Consol.
Rail Corp. v. Ry. Labor Executives Ass’n, 491 U.S. 299, 316-17
(1989) (suggesting that arbitrator could interpret implied terms of a
collective bargaining agreement).
C.
Lastly, Media General contends that the Que Pasa grievances are
not substantively arbitrable because they involve work related to an
independent publication. According to Media General, the Agreement
does not entitle bargaining-unit employees to work that Que Pasa
assigns to its own employees. The Union, by contrast, insists that the
Que Pasa grievances are arbitrable for the same reasons that make the
PDS grievance arbitrable.6 According to the Union, Media General
allowed non-bargaining-unit employees to perform bargaining-unit
work. The district court decided that the terms of the Agreement do
not clearly differentiate between Media General publications and
6As to the August Que Pasa grievance, Media General asserts that the
Union failed to exhaust its administrative remedies, since the Union nei-
ther grieved the issue nor requested arbitration. However, arbitrators
decide questions of procedural arbitrability. John Wiley & Sons, 376 U.S.
at 557.
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independent publications, that the Que Pasa work was arguably
reserved to the bargaining unit, and that the Que Pasa grievances
were substantively arbitrable. Opinion at 25-26.
Like the PDS grievance, the Que Pasa grievances involve ques-
tions of contract interpretation, and they should be submitted to arbi-
tration. It is for an arbitrator to decide whether the Agreement applies
only to work associated with the Journal, or whether it also encom-
passes work relating to independent publications handled by Media
General. Indeed, § 2 of the Agreement includes broad language that
appears to draw no distinction among publications. In fact, the Agree-
ment states that it applies to "work as performed on the premises of
the Company . . . [including] inserting or dispatching of papers."
Because the work involving Que Pasa was "work as performed on the
premises of the Company," the Union has a colorable claim that the
Agreement obligated Media General to give this work to bargaining-
unit employees. The district court, therefore, did not err in deciding
that this question should be submitted to arbitration.
VI.
For the foregoing reasons, we affirm the district court’s decision
compelling Media General to arbitrate the Union’s grievances.
AFFIRMED
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