11-12, 1989. Arbitrator Witney found that certain wage reductions instituted by the Sun-Times went beyond the scope of the most favored nations clause and were impermissible. He also determined, however, that the Sun-Times had a legitimate right to limit the Union's work jurisdiction, transfer employees, and circumscribe the substitute hiring practice. Arbitrator Witney's decision became final and binding on the parties on December 19, 1989.
On January 10, 1990, the Union filed suit to reverse Arbitrator Witney's decision with respect to the work jurisdiction and substitute hiring issues, and to request clarification of the employee transfer finding. That litigation is currently pending before United States District Judge Ann C. Williams.
Meanwhile, the parties continued to negotiate a new collective bargaining agreement to replace the Main Agreement. After a year of negotiations, the Sun-Times made a "final offer" for a new agreement. This final offer, tendered January 26, 1990, incorporated the provisions of the Supplemental Agreement, proposals concerning wages and health/welfare benefits, and the package of rights upheld by Arbitrator Witney regarding work jurisdiction, employee transfers, and substitute hiring.
The Union rejected the Sun-Times' final offer. No negotiations concerning the new collective bargaining agreement have been held since January 26, 1990. The Union filed suit on April 9, 1990 seeking to compel arbitration of certain aspects of that final offer.
Under the Federal Rules of Civil Procedure, summary judgment is appropriate if "there is no genuine issue as to any material fact and . . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). This standard places the initial burden on the moving party to identify "those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986) (quoting Rule 56(c)). Once the moving party has done this, the non-moving party "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e).
The Union analogizes this matter to litigation arising out of its negotiations with the CNPA in 1984 and 1985. See Chicago Typographical Union No. 16 v. Chicago Newspaper Publishers' Association, 853 F.2d 506 (7th Cir. 1988). There, the Seventh Circuit upheld the District Court's order compelling the CNPA to arbitrate certain aspects of a "final offer" for a new collective bargaining agreement. Id. at 510.
That case and the present matter are superficially similar. In Chicago Newspaper, the Union and the CNPA entered into a "Main Agreement," effective from 1979 to 1983. Id. at 507. The Supplemental Agreement of 1975 bound both sides as well. Id. The CNPA made a "final offer" for a new collective bargaining agreement. Id. at 508. The Union objected to that final offer, alleging violations of certain guarantees in the Supplemental Agreement. Id. The Union filed suit to compel arbitration. Id. The district court granted the Union's partial summary judgment motion and ordered arbitration. Id.
Despite the Union's assertions to the contrary, however, there are differences between the two situations. The key distinction between this matter and Chicago Newspaper is that in the earlier litigation the CNPA "unilaterally instituted the proposed changes" outlined in its final offer, thereby terminating the "Main Agreement." Id. Here, the Sun-Times has not implemented any of the terms or conditions of its final offer. The Main Agreement is still in effect. The Sun-Times made a proposal, and the Union rejected that proposal. The Sun-Times has not "unilaterally instituted the proposed changes."
Chicago Newspaper dealt with the question of whether "specific guarantees that [the Union] won in the Supplemental Agreement of 1975 have been violated by CNPA." Id. at 510 (emphasis added). It did not address the question of potential or hypothetical violations. Certain changes had actually been implemented by the Sun-Times, not simply proposed or tendered as negotiating tools; given that reality, the Seventh Circuit upheld the Union's right to "protect the existing rights" of its employees "under the Supplemental Agreement of 1975." Id.
Here, however, the changes that the Union finds objectionable in the Sun-Times' proposal have not actually been implemented. Indeed, this present matter is more like another case involving these two parties than like Chicago Newspaper. Compare Chicago Typographical Union No. 16 v. Chicago Sun-Times, Inc., 860 F.2d 1420 (7th Cir. 1988) (no arbitration ordered; no dispute) with Chicago Newspaper, 853 F.2d 506 (7th Cir. 1988) (arbitration ordered). In Sun-Times, the Union demanded arbitration over the Sun-Times' contemplated use of the section 7(a) "most favored nations" clause. Sun-Times, 860 F.2d at 1422. The Sun-Times, however, had not yet taken a position regarding its right to utilize section 7(a) in that particular context. Id. In fact, the Union had not turned over to the Sun-Times information relating to concessions allegedly given by it to the Tribune--information without which the Sun-Times could not formulate its position. Id. at 1422-23.
The Seventh Circuit held that for the Union to prevail in Sun-Times, it would have to show that the Sun-Times "has acted, or has threatened to act, in a manner inconsistent with the Union's interpretation of the contract . . . . Since the Union has failed to demonstrate that a dispute exists as to the meaning of the most favored nation clause, the district court was justified in refusing to order arbitration." Id. at 1426. In short, "no current, live dispute" existed between the Union and the Sun-Times. Id. at 1427.
In the present matter, the Sun-Times' final offer is just that -- an offer. As such, it is analogous to a "contemplated use" and any question over its predicted impact when and if implemented falls short of the "controversy [or] . . . . disagreement as to interpretation or enforcement of the terms of th[e Main] Agreement" required by the arbitration clause in the Main Agreement.
See id. at 1421, 1427.
Moreover, the Main Agreement does not provide for an "advisory opinion" procedure, whereby questions which had not yet resulted in a conflict between the parties could be arbitrated. See generally F. Elkouri & E. Elkouri, How Arbitration Works 233-34 (4th ed. 1985) ("the parties may specifically provide by contract for advisory opinions"), cited in Sun-Times, 860 F.2d at 1425. A review of the record indicates that the Union is attempting to force a resolution through arbitration of issues more properly suited for the negotiating table. Clearly, no arbitrable "controversy" or "disagreement" exists in this case.
We grant summary judgment in favor of the Sun-Times, and deny the Union's similar motion. Absent evidence that the terms of the Sun-Times' final offer have actually been implemented, arbitration of the impact of those terms on the Supplemental Agreement of 1975 is premature and inappropriate. It is so ordered.