233 F.3d 587 (D.C. Cir. 2000)
Washington Mailers Union No. 29, Affiliated with Communications Workers of America, Appellantv.Washington Post Company, Appellee
No. 00-7045
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 8, 2000Decided December 8, 2000

Appeal from the United States District Court for the District of Columbia (99cv01044)
Richard Rosenblatt argued the cause for appellant.  With  him on the briefs was Mark F. Wilson.
Willis J. Goldsmith argued the cause and filed the brief for  appellee.
Before:  Tatel and Garland, Circuit Judges, and  Silberman, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge  Silberman.
Silberman, Senior Circuit Judge:


1
The Washington Mailers  Union brought suit in federal district court seeking to compel  the Washington Post to arbitrate a dispute concerning the job  security provision of the collective bargaining agreement. The court granted the Post's motion for summary judgment. It concluded that the issue was related to an area of management discretion and refused to order arbitration.  We reverse.

I.

2
The Washington Post publishes a daily newspaper.  The  Washington Mailers Union No. 29 is the collective bargaining  representative of the Post's mailing room employees.  The  Union represents both mailers, who operate the machinery  which collates and places inserts into the newspaper, and  helpers, who perform materials-handling functions.  When  the time for the expiration of the prior collective bargaining  agreement neared, the Union and the Post began negotiations, and they entered into a new agreement in 1998.  Section 5 of the agreement allows for a grievance to be filed  "[w]henever there is a disagreement involving an alleged  violation of a specific provision of this Agreement, including a  controversy over any form of discipline or discharge."  If the  parties cannot resolve the grievance, S 5(d) provides for  arbitration, but also limits the arbitrator's authority:  "The  arbitrator shall not have the authority to amend or modify or  to add to or subtract from the provisions of this Agreement,  nor shall matters left unrestricted by a specific provision of  this Agreement or left to the discretion of the Publisher be  subject to arbitration."


3
Throughout the year, the Post analyzes production needs  and other factors to determine the minimum number of "situations" (jobs)1 for both mailers and helpers needed to  handle production volume during the period.  After such  determinations, the Post provides the Union with a mail room  work schedule (the "mark-up") of available shifts for the  designated number of mailers and helpers.  The mailers and  helpers included in each mark-up, referred to as situation holders, then select their fixed, five-day-a-week schedules in  order of seniority.  The employees work these schedules for  the duration of the mark-up.  The Post fills additional labor  needs, which vary depending on production and employee  absences, with mailer and helper "substitutes."  Substitutes  are on-call employees to whom the Post offers, on a weekly  basis, up to five shifts per week.  But substitutes are not  guaranteed five shifts a week.


4
In November 1998, the Post announced a new mark-up,  effective January 1999, which reduced the number of helper  situations from 144 to 122;  the result was that 22 helpers no  longer had fixed five-day-a-week schedules.  Instead, these  employees were offered on "a regular weekly basis, the  opportunity to work no fewer than five shifts each week"-which means they would not know in advance their weekly  schedule.  The Union filed a grievance claiming that this  change violated S 6(f)(1), which provides:


5
All situation holders actively working at The Post as of April 5, 1998 as Mailersor Mailroom Helpers, and whose names appear on the Job Security Rosters attached as Appendices B and C, will be guaranteed regular, fulltime positions as Mailers or Helpers for the term of this Agreement without layoff, unless they vacate the same through retirement, resignation, death, or discharge for cause....


6
The Union contended that this term-of-contract job security  provision guaranteed situations to the then-number of mailers  and helpers.  It was claimed that 13 of the 22 employees denied situations were among those covered by the guarantee  of regular employment under S 6(f)(1).


7
The Post refused to arbitrate the grievance, maintaining  that arbitration of the employer's determination as to the  number of situations was expressly precluded by S 13(a).  It  states:


8
The Publisher shall determine the number of regular situations to meet minimum production requirements; provided, the Publisher shall take into consideration the number of extra shifts hired at the Publisher's option due to sickness, vacations, jury duty, compassionate leave, and any other relevant factors.  In the event of a dispute arising under this paragraph, the Union may grieve such dispute, but the dispute shall not be subject to arbitration.


9
The Union countered that the agreement allows for arbitration if a violation of a specific provision of the agreement is  alleged, and it claimed that the separate guarantee of "regular" employment in S 6(f)(1) had been violated by denying  situations to the 13 covered workers.  The Union emphasized  that it was not challenging the denial of situations to the nine  helpers, designated as substitutes, who were not employed at  the time the agreement went into effect and thus not covered  by S 6(f)(1).  The Union conceded that these nine employees'  situations were nonarbitrable under S 13(a) because they  were not covered by the specific provision of S 6(f)(1).


10
The Union brought suit in federal district court under  S 301(a) of the Labor Management Relations Act of 1947, 29  U.S.C. S 185(a) (1994), seeking to compel arbitration.  The  parties stipulated to the facts and filed cross-motions for  summary judgment.  The district court granted summary  judgment for the Post concluding that S 13(a) "unambiguously removes disputes about the number of situations from  [arbitration]."  The court reasoned that whether S 6(f)(1)  guarantees a situation for the 13 covered employees might  have been arbitrable if S 13(a) did not exist.  The Union  appealed.

II.

11
We review the district court's grant of summary judgment  de novo.  See Yamaha Corp. of Am. v. United States, 961  F.2d 245, 254 (D.C. Cir. 1992).  The determination of whether  a dispute is arbitrable under a collective bargaining agreement is a question of law for the court, unless the parties  unmistakably agree to submit the issue of arbitrability to  arbitration.  AT&T Techs., Inc. v. Communications Workers,  475 U.S. 643, 649, 106 S. Ct. 1415, 1418-19 (1986).  But, "in  deciding whether the parties have agreed to submit a particular grievance to arbitration, a court is not to rule on the  potential merits of the underlying claims."  Id. And if a  contract includes an arbitration clause, a presumption of  arbitrability arises, meaning "[a]n order to arbitrate the  particular grievance should not be denied unless it may be  said with positive assurance that the arbitration clause is not  susceptible of an interpretation that covers the asserted  dispute.  Doubts should be resolved in favor of coverage." Id. at 650, 106 S. Ct. at 1419 (internal quotation marks  omitted) (alteration in original) (quoting United Steelworkers  v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83, 80  S. Ct. 1347, 1353 (1960)).


12
As noted, the Union seeks to compel arbitration of its  grievance that the Post violated the specific guarantee of  "regular, full-time" employment provided by S 6(f)(1) of the  agreement when it denied mark-up situations to 13 employees  covered by S 6(f)(1).  The Post relies on S 13(a), which it  asserts positively excludes this dispute--relating to the number of situations--from arbitration as entirely within the  management's discretion. Section 6(f)(1) does not limit this  discretion because "regular, full-time positions" does not  mean situations.


13
The Post at the onset argues that the grievance did not  really allege violations of S 6(f)(1) but only challenged the  number of situations, the very decision precluded from arbitration under S 13(a).  The Post relies heavily on the Union's  stipulation that the grievance "directly resulted from" and  would not have been filed "but for" the Post's decision to reduce the number of situations.2  But the Union did not  challenge the mark-up per se, rather its effect on the 13  employees it alleged have superior rights under S(6)(f)(1). The Union's legal claim only arose when those 13 employees  were negatively affected.  That the mark-up was an anterior  cause of the grievance is hardly reason to conclude that the  Union's legal claim is focused on the mark-up.  That is  equivalent to contending that if a union member complained  about the situations in the mark-up and was fired for his  complaints, he could not grieve his dismissal under a "just  cause" provision because his dismissal stemmed from the  mark-up.


14
It is apparent that the underlying dispute really turns on  the interpretation of "regular, full-time positions" in S 6(f)(1). The Union claims it means that these 13 employees are  entitled to situations;  whereas the Post contends that as long  as they are offered any five days in a week that is sufficient. It would appear that the proper interpretation of this section,  which resolves the issue in this case, goes to the merits of the  grievance and is not for us to decide.  As the Supreme Court  warned, "the court should view with suspicion an attempt to  persuade it to become entangled in the construction of the  substantive provisions of a labor agreement ... when the  alternative is to utilize the services of an arbitrator."  Warrior & Gulf, 363 U.S. at 585, 80 S. Ct. at 1354.


15
Nevertheless, the Post contends the argument to send this  dispute to the arbitrator is necessarily to give the arbitrator  authority to decide arbitrability-a question reserved for the  court in this case.  To be sure, by interpreting S 6(f)(1), the arbitrator may implicitly decide the arbitrability issue, but  that outcome is inherent when the specific rights-based provision of the agreement is tied to the issue of arbitrability and  not only to the issue of rights.  When such a situation occurs,  unless the issue is clearly excluded from arbitration, the  interpretation of the rights-based provision should be left to  the arbitrator.  Cf. Ceres Marine Terminals, Inc. v. Int'l  Longshoremen's Ass'n, Local 1969, 683 F.2d 242, 244 (7th Cir.  1982) ("[W]here a collective bargaining agreement is ambiguous regarding the effect of its arbitration provisions, doubts  should be resolved in favor of arbitration.").


16
Section 13(a) is hardly an unequivocal indication that a  grievance filed regarding the meaning of S 6(f)(1) is not  arbitrable.  Section 13(a) does state that "The Publisher shall  determine the number of regular situations to meet minimum  production requirements....  In the event of a disputearising under this paragraph, the Union may grieve such dispute,  but the dispute shall not be subject to arbitration."  But  S 6(f)(1) specifically provides that "[a]ll situation holders actively working at The Post as of April 5, 1998 as Mailers or  Mailroom Helpers, and whose names appear on the Job  Security Rosters attached as Appendices B and C, will be  guaranteed regular, full-time positions as Mailers or Helpers  for the term of this Agreement."  These provisions undoubtedly--at least on their face--create some tension.  As the  Union points out, that is so because accepting the Post's  reading of the scope of § 13(a) and its relation to S 6(f)(1)  arguably could make the guarantee provision meaningless. See Communications Workers v. AT&T Co., 40 F.3d 426, 435  (D.C. Cir. 1994) (concluding that a dispute was arbitrable by  refusing to read one provision as rendering a conflicting  provision a nullity).  Given the tension, it is certainly plausible to read S 6(f)(1) as a specific restriction overriding the  general language of S 13(a)-indeed, it may be the more  persuasive reading.  Ceres Marine Terminals, 683 F.2d at  244.3


17
Even if the language were thought ambiguous, the Post  claims that the bargaining history of the agreement is forceful evidence that disputes relating to the number of situations  were not subject to arbitration.  The Post points out that  under the prior collective bargaining agreement the Union  attempted to arbitrate the Post's decision to reduce the  number of situations in the mark-up.  As a result, the Post's  objectives in negotiating the present agreement included "to  eliminate or narrow the Union's ability to challenge, in arbitration, The Post's exercise of its management rights" in the  areas of work assignments, hiring employees, and scheduling  employees.  Accordingly, the Post obtained a revision of the  grievance and arbitration provisions to narrow the definition  of grievance and to exclude from arbitration "matters left  unrestricted by a specific provision of this Agreement or left  to the discretion of the Publisher."  The Post also notes that  originally S 13(a) included "discretion" language for the purpose of making decisions concerning the number of situations  nonarbitrable, and the Union, through its representative,  "stated [its] understanding that this 'discretion' language  excluded the matter to which it referred from arbitration." Though this language was replaced with the express statement that the section would not be arbitrable, the Union  admitted that it understood the agreed-upon language to have  the same meaning as "discretion."  We are not persuaded by  the Post's resort to bargaining history.  Section 6(f)(1) was  negotiated and added to the agreement after S 13(a), and the  parties did not specifically focus on the interrelation between  the two provisions.


18
The reasoning of the Seventh Circuit in Local 75, International Brotherhood of Teamsters v. Schreiber Foods, Inc., 213  F.3d 376 (7th Cir. 2000), is instructive.  There the court  determined that the union's grievance over scheduling was arbitrable because, under at least one reasonable reading of  the agreement, the employer's discretion over the scheduling  was limited, restricted by another provision of the agreement  limiting scheduling to "reasonable times and frequencies." Id. at 378-80.  In this case as well, the agreement easily  bears the interpretation the Union asserts.  And even the  Post conceded at oral argument that if we concluded the  arguments made by both sides as to the proper reading of the  contract were at least equally plausible then we must direct  the district court to order arbitration.  Itis not even certain,  then, that we must rely on the presumption of arbitrability  created by the existence of an arbitration clause to do so in  this case.4  But in any event that presumption does arise, and  therefore we think appellant easily prevails.


19
Having been filed under S 6(f)(1), the grievance is arbitrable and any tension between S 6(f)(1) and S 13(a), as stated,  is for the arbitrator to resolve.  The decision of the district  court is reversed.


20
So ordered.



Notes:


1
  The parties agree that a "situation" is a fixed five-day-a-week  work schedule.


2
  The first grievance actually stated that it involved "the recent  helper mark-up" because "[t]his mark-up contains a total of 122 jobs  which is in violation of 'job security roster section' [6(f)(1)] in the  contract" and the second grievance stated that it concerned the  employer's violation of S 6(f)(1), which provides that the designated  mailers will be "guaranteed regular, full-time positions," because  "[a]s a result of The Post's action in establishing the new mark-up  ... employees whose names are on the Job Security Rosters will be  laid off from their regular, full-time positions and reduced to  substitute status."


3
  The cases the Post cites are inapposite in this case.  See, e.g.,  Local Union 1393 Int'l Bhd. of Elec. Workers v. Utils. Dist. of W.  Ind. Rural Elec. Membership Coop., 167 F.3d 1181, 1184 (7th Cir.  1999);  Gen. Drivers, Local Union No. 509 v. Ethyl Corp., 68 F.3d  80, 84-85 (4th Cir. 1995);  Int'l Ass'n of Machinists and Aerospace  Workers, Progressive Lodge No. 1000 v. Gen. Elec. Co., 865 F.2d  902, 906-07 (7th Cir. 1989).  The Union has presented us with an  arbitrable clause that is expressly and specifically addressed to the  grievance.


4
  The Post argues that the presumption cases are inapplicable  because they involve the construction of a "broad" arbitration  clause.  We disagree.  While the fact that the arbitration clause in  this case is not broad--limiting grievances to allegations of "violation of a specific provision of this Agreement"--is relevant to our  inquiry, it does not negate the presumption of arbitrability.  See  Int'l Bhd. of Elec. Workers, Local 2188 v. W. Elec. Co., 661 F.2d  514, 516 n.3 (5th Cir. Unit A Nov. 1981).


