43 F.3d 1349 (10th Cir. 1994), 92-4170, Considine v. Newspaper Agency Corp.

Docket Nº:92-4170.
Citation:43 F.3d 1349
Party Name:(Ernest CONSIDINE), Wilbur J. Meyer Jr., John L. Mittelstedter, Robert Porter, Bernice McBride, M. Lee Bex, Plaintiffs-Appellants, v. NEWSPAPER AGENCY CORPORATION; Salt Lake Typographical Union No. 115; Communications Workers of America, Defendants-Appellees.
Case Date:December 28, 1994
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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43 F.3d 1349 (10th Cir. 1994)

(Ernest CONSIDINE), Wilbur J. Meyer Jr., John L.

Mittelstedter, Robert Porter, Bernice McBride, M.

Lee Bex, Plaintiffs-Appellants,



No. 115; Communications Workers of America,


No. 92-4170.

United States Court of Appeals, Tenth Circuit

December 28, 1994

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Elizabeth T. Dunning of Watkiss Dunning & Watkiss, Salt Lake City, UT, (Mary J. Woodhead of Watkiss Dunning & Watkiss and H. Dickson Burton of Woodbury & Kesler, with her on the brief) for plaintiffs-appellants.

James S. Lowrie of Jones, Waldo, Holbrook & McDonough, Salt Lake City, UT, (Deno G. Himonas of Waldo, Holbrook & McDonough and Sharon E. Sonnenreich, Salt Lake City, UT, with him on the brief) for defendant-appellee Newspaper Agency Corp.

James B. Coppess, Washington, DC (Arthur F. Sandacks, Salt Lake City, UT, and Gerard C. Boyle, Washington, DC, with him on the brief) for defendants-appellees Salt Lake Typographical Union No. 115 and Communications Workers of America.

Before BALDOCK, McKAY, and EBEL, Circuit Judges.

EBEL, Circuit Judge.

A group of former and present employees ("Plaintiffs") of the Newspaper Agency Corporation ("NAC") allege that the Salt Lake Typographical Union No. 115 ("Local 115") and the Communications Workers of America ("CWA") breached a duty of fair representation under Sec. 301 of the Labor Management Relations Act ("LMRA"), codified at 29 U.S.C. Sec. 185. Four of the Plaintiffs further allege that NAC violated the Age Discrimination in Employment Act ("ADEA"), codified as amended at 29 U.S.C. Sec. 626. The district court granted the unions' summary judgment motion on the Sec. 301 claim. The age discrimination claim was tried before a jury, which ruled in favor of NAC. The court denied the Plaintiffs' Fed.R.Civ.P. 50 motion for judgment as a matter of law and Fed.R.Civ.P. 59 motion for a new trial on their age discrimination claim. Before us is the Plaintiffs' appeal on both the summary judgment dismissal of their Sec. 301 claim and the denial of the Rule 50 and Rule 59 motions. We affirm.


This combined action against NAC and two labor organizations arose from NAC's automation of its newspaper production process in 1986, which rendered the Plaintiffs' positions obsolete. NAC, a Utah corporation, is the advertising, printing, and circulation agent for the Salt Lake Tribune and the Deseret News, Salt Lake City's two daily newspapers. The Plaintiffs performed production and advertising tasks in NAC's "composing rooms" and belonged to Local 115, the exclusive bargaining agent for NAC's composing room employees since 1952. 1 CWA is Local 115's international affiliate.

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In 1986, NAC purchased a computerized system to enhance the efficiency and quality of its advertisement production--the Triple I system. Rather than installing this new system in the composing rooms in which the Plaintiffs had worked, NAC opted instead to create a new site for Triple I named the "Oak Room." This decision promptly triggered a dispute between Local 115 and NAC over whether the work performed on Triple I fell within Local 115's jurisdiction--i.e. whether the Oak Room was a composing room. At stake was Local 115's authority, under the existing collective bargaining agreement, to require NAC to abide by the agreement's hiring procedures and thus give first priority to composing room employees in filling Oak Room positions.

Pursuant to Sec. 3.1 of the existing collective bargaining agreement, Local 115 exercised jurisdiction over:

all employees of [NAC's] composing rooms (the environmental rooms, the ad composition rooms, the markup rooms, the proofrooms, the page markup rooms, the keyboarding rooms and the dark rooms) employed in the actual day-to-day production of the newspapers produced by [NAC], who shall be journeymen and apprentices who perform operations such as, but not limited to, markup (both ad and news), composition, keyboarding, pasteup, machine monitoring, tape processing for and operations of computer input and output devices, operations of CRTs (VDT), OCRs, proofing devices and operation of phototypesetters, operations of cameras, processing of photocomposition film, tape perforation, proofreading, operation of page mark-up devices, mechanical color break and maintenance of equipment in [NAC's] composing rooms. (emphasis added).

Pointing to this clause, Local 115 argued that its jurisdiction extended to the Oak Room because Triple I was dedicated to the same type of production operations as had previously been undertaken in composing rooms. In rebuttal, NAC maintained that the collective bargaining agreement was expressly limited to the composing rooms, as evidenced by Sec. 1 of the Supplemental Agreement: "the Union recognizes ... that [NAC] may use similar equipment ... in other departments of [NAC]." NAC argued that the Oak Room was simply another department.

Consistent with its interpretation of the collective bargaining agreement, NAC installed Triple I in August 1986 and hired eighteen employees without following the collective bargaining agreement's priority-hiring procedures. 2 Local 115 knew that Triple I would reduce the need for composing room employees and was skeptical about the potential to negotiate a compromise with NAC. Accordingly, on November 5, 1986, Local 115 filed a formal grievance with NAC to apply the collective bargaining agreement to the Oak Room. 3

Meanwhile, the collective bargaining agreement expired on December 31, 1986, and the parties agreed only to keep that agreement in effect on a day-to-day basis, pending negotiation of a new agreement. When the Triple I grievance process appeared futile, Local 115 proposed arbitration. NAC, however, refused arbitration and instead filed a unit clarification petition with the National Labor Relations Board ("NLRB") on April 16, 1987. Concurrently, Local 115 filed its own petition with the

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NLRB that accused NAC of engaging in unfair labor practices.

As both sides dug in their heels and prepared for protracted litigation, counsel for Local 115 and NAC rekindled settlement talks. On July 17, 1987, NAC officer Jay Carlson met with Ken Prarie, a CWA representative who had been assigned to assist Local 115 for the past 25 years. 4 The parties convened a second meeting on August 4th that included Richard Rosenblatt (Local 115's counsel) and Glenn Webb (NAC's Production Manager). With settlement prospects improving, the President and Vice President of Local 115, Larry McNeil and Horst Reschke, respectively, participated in a third meeting on August 20th. At this point, the two sides identified their negotiating teams: the Local 115 representatives included President McNeil, Vice President Reschke, Prarie, and Rosenblatt, and NAC was represented by Webb, Carlson, and their counsel, James Lowrie and James Stewart.

What emerged from these negotiations on September 9, 1987 was a tentative settlement agreement in which NAC consented to the inclusion of the Triple I positions in Local 115's bargaining unit in exchange for an agreement that the remaining composing room employees could not displace those non-composing room employees that NAC had already assigned to Triple I positions. While the parties continued to refine the draft settlement agreement, NAC announced that the 22 least senior employees in the composing rooms--including the Plaintiffs--would be terminated on December 12, 1987. 5 In late December 1987 and early 1988, twenty of these employees filed age discrimination charges with the Utah Anti-Discrimination Division and the Equal Employment Opportunity Commission.

Local 115 representatives intended to obtain relief for the discharged employees in a new collective bargaining agreement, but NAC refused to conclude a new agreement until the parties resolved the Oak Room dispute. However, Local 115 and NAC officials failed to craft a mutually-acceptable Oak Room settlement agreement. With negotiations stalled in December 1987, Local 115 President McNeil submitted NAC's most recent settlement proposal to the Local 115 members for a vote. The members rejected the proposal.

After renewed negotiations, the parties ultimately reached a settlement agreement in February 1988 under the following terms: (1) Local 115's bargaining unit would include the Triple I positions in the Oak Room; (2) NAC would retain the twelve non-composing room employees trained on and assigned to the Triple I, with their compensation subject to negotiation in the new collective bargaining agreement; (3) NAC would increase the salary for the eight former composing room employees hired for the Triple I commensurate with the wage they received in the composing room; and (4) all new employees included in the bargaining unit would enjoy the right to transfer to non-unit positions to avoid being laid off.

On March 27, 1988, Local 115 representatives presented the settlement agreement to the membership for ratification. Both Rosenblatt and Prarie answered questions about the agreement and President McNeil and Vice President Reschke endorsed it. Local 115 representatives informed the members that any outstanding grievances would have to be listed on Attachment A to the settlement agreement and brought to the attention of union officials. All members were invited to specify any outstanding grievances that they would like included in Attachment A. The sole grievance identified was one that Local 115 Chapel Chairman David Bennett had originally filed on January 19, 1988, alleging that NAC violated the training clause provisions of the collective

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bargaining agreement. 6 President McNeil assured the members that this grievance...

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