Baker v. Newspaper & Graphic Communications, Civ. A. No. 77-2186.

• Decision Date: 24 October 1978
• Docket Number: Civ. A. No. 77-2186.
• Citation: 461 F. Supp. 109
• Parties: Paul J. BAKER et al., Plaintiffs, v. NEWSPAPER AND GRAPHIC COMMUNICATIONS UNION, LOCAL 6, et al., Defendants.
• Court: U.S. District Court — District of Columbia

461 F. Supp. 109

Paul J. BAKER et al., Plaintiffs, v. NEWSPAPER AND GRAPHIC COMMUNICATIONS UNION, LOCAL 6, et al., Defendants.

Civ. A. No. 77-2186.

United States District Court, District of Columbia, Civil Division.

October 24, 1978.

Lawrence J. Sherman, Washington, D.C., for plaintiffs.

Zachary D. Fasman, Willis J. Goldsmith, Seyfarth, Shaw, Fairweather & Geraldson, Washington, D.C., for defendant Evening Star.

Neal P. Rutledge, Robert B. Cornell, Wald, Harkrader & Ross, Washington, D.C., for defendant International.

William N. Anspach, James R. Klimaski, Gaffney, Anspach, Schember, Klimaski & Marks, Washington, D.C., for Local 6.

MEMORANDUM

OBERDORFER, District Judge.

I. INTRODUCTION

Plaintiffs, pressmen employed by the Evening Star Newspaper Co. (the Star), are members of Local 6 (the Local) of the International Printing and Graphic Communications Union (the International). Plaintiffs bring this suit against the unions and the Star alleging violation of their federal rights to fair representation in collective bargaining based on 29 U.S.C. § 159(a), and to free speech and participation in connection with union business meetings, based on 29 U.S.C. § 411.

The dispute concerns the status of the plaintiff pressmen in relation to stereotypers employed by the Star, as that status was affected by an agreement bargained between the Local and the Star in 1976. That agreement provided, among other things, that the Star would close its separate stereotyping department and would "dovetail" stereotypers and pressmen so that thereafter they would all be ranked in the pressroom for purposes of priorities by seniority, without distinction between stereotypers and pressmen. Plaintiffs claim that this agreement to dovetail stereotypers and pressmen violated rights guaranteed to pressmen by 1973 agreements which merged unions representing stereotypers into unions representing pressmen. According to plaintiffs these merger agreements and the permanent charters which implemented them required that whenever a publisher converted one method of printing into another method those journeymen working in the department being displaced would have an opportunity to be retrained and to enter the surviving department, but only on an "endtailed" status, i. e., senior to persons coming into the surviving department from the outside, but junior to the most junior journeymen at work in that department.

Plaintiffs claim that these union merger agreements required that all stereotypers displaced when the Star closed its stereotype department be relegated to the bottom of the pressroom priority list. If stereotypers had been so "endtailed" instead of being "dovetailed" as agreed to in 1976 by the Local and the Star, plaintiffs would enjoy a higher priority than they do now with respect to choice work assignments and job protection in the event of lay-offs.

The Court concluded earlier that it has jurisdiction over the plaintiffs' complaint and denied defendants' motions to dismiss it, based upon 29 U.S.C. §§ 301, 401. The case is now before the Court on defendants' motions for summary judgment and plaintiffs' motion for a partial one. On the basis of facts established by the parties' statements of material facts and genuine issues and by undisputed documentary evidence, the Court concludes that there was no actionable violation of the endtailing provisions of the union merger agreements and that there was, therefore, no violation of plaintiffs' right to fair representation. Nor is there any factual or legal basis for the plaintiffs' claim that their rights to free speech and participation under 29 U.S.C. § 411 were violated. The findings of fact and conclusions of law which lead to these decisions follow.

II. Findings of Fact

1. In 1970 the Star obtained National Labor Relations Board approval of its decision to assign to the Photo Engravers Union some of the tasks theretofore performed by members of the then Stereotypers Union. Washington, D.C. Stereotypers Union No. 19, 181 NLRB 784 (1970). This NLRB approval was based in part upon the Star's representation that it would guarantee all stereotypers then in its employ an opportunity to work "until retirement or the occurrence of some other natural contingency" so that the reduction in force would be accomplished by "attrition." Id. at 787, 788, 789. The Star, through its Director of Industrial Relations, Harold Boyd, made a similar representation to David Barr, attorney for the Stereotypers Union (letter of April 25, 1969, ex. 1 to Defendant Star's Memorandum In Support of Its Motion for Summary Judgment.)

2. The 1973 agreement effecting the national merger of the Stereotypers' Union and the Pressmens' Union provided among other things that:

(a) "Where there is a loss of journeymen jobs because of a conversion (for example, letterpress to offset) the journeymen members within the plant who are displaced because of such conversion and willing to retrain will be given such an opportunity before new journeymen . . . are employed.

(b) The merger would not "affect, interfere with or change the continuing status or rights, duties and obligations of either union with respect to third parties and would not impair or otherwise affect . . . the rights and obligations of any local . . . under and pursuant to any collective bargaining agreement . . ."

3. The Constitution and Laws of the International formed by the merger provided that, among other things:

(a) Lay-offs would be effected by reverse seniority (last hired, first fired).

(b) "Priority shall be maintained in the operation of any sub-line and also in filling regular positions from such sub-line."

(c) "Local unions shall establish regulations permitting a priority holder to engage in pursuits or gainful occupation other than that in which priority is held without loss of situation or priority, during which period the member exercising this privilege shall employ a substitute."

(d) Any individual local member may appeal any local decision adverse to him to the International. Appeals are taken successively to the President, to the Board and to the next International Convention.

4. The agreement merging the parallel local unions of stereotypers and pressmen provided that should journeymen lose jobs because of a conversion:

"the journeyman members displaced and willing to be retrained will be given the opportunity. They will go to the last flyman as of the date of the merger."

5. The collective bargaining agreement between Local 6 and the Star expired by its terms on September 30, 1975.

6. Negotiation of a new agreement began formally at about that time. Intensive bargaining began in early January 1973 and continued until an agreement was reached and confirmed in April of that year.

7. During all this time Local 6 has served as the exclusive collective bargaining agent for stereotypers and pressmen at the Star.^*

8. Throughout the 1975-76 negotiating period, the Star was undergoing severe financial difficulties, with monthly deficits running as high as $1 million. (Boyd Stipulation at 3, 5, 8, 10; Lewis Deposition, ex. 1).

9. The Star was represented during the 1975-76 negotiations by new management which described the Star's financial condition to the union and plausibly suggested that the paper might soon be closed if labor cost savings could not be achieved. The negotiators related those representations to union members generally.

10. The Star proposed displacement of the stereotyping department and the dovetailing of its employees with pressmen in the pressroom. The closing of the department would reduce the Star's personnel costs. The dovetailing would honor the Star's obligation imposed by the 1970 National Labor Relations Board decision protecting the status of displaced stereotypers.

11. In responding to the dovetailing proposal, union negotiators did not refer to the "endtailing" provisions of the Local and International merger agreements.

12. Endtailing of the stereotypers would have either severely limited the Star's ability to reduce pressroom personnel costs or would have violated the Star's representation to the National Labor Relations Board and to the Stereotypers Union.

13. Some pressmen who were members of the Local, apprised of the dovetailing proposal, vigorously protested to the union negotiators. The negotiators did not respond favorably to the protests. The Local President tore up a protestor's telegram.

14. The bargaining concluded on April 22, 1976, at which time the Star proposed, and the union negotiators accepted, subject to membership approval, a contract with a variety of provisions for personnel cost saving, including the displacement of the stereotyping department and the dovetailing of the stereotypers into the pressroom.

15. At a two-hour local union meeting about the proposed contract, the President discussed and answered members' questions about the provisions of the contract. The President recommended against the contract. The vote was on the contract as a whole. There was no vote on individual provisions; there was a separate vote on dovetailing. The membership voted 99 to 44 to approve the contract. The small number of stereotypers in the Union compared to the larger number of pressmen established mathematically that the great majority of pressmen voted for the contract.

16. Local officials neither sought nor received International approval of the contract or the preceding negotiations.

17. Plaintiffs unsuccessfully protested within the Local its approval of the agreement with the Star. On June 6, 1976, plaintiffs appealed the Local's actions and decision to the International President and the International Board. They denied the appeal because, in the President's opinion, the International was not a party to the agreement and lacked power to restore plaintiffs' priorities. Plaintiffs took no appeal to the International Convention.

III. Conclusions of Law

A. Duty of Fair...