79 F.3d 1273 (1st Cir. 1996), 95-1878, Newspaper Guild of Salem, Local 105 of Newspaper Guild v. Ottaway Newspapers, Inc.

Docket Nº:95-1878.
Citation:79 F.3d 1273
Party Name:The NEWSPAPER GUILD OF SALEM, LOCAL 105 OF the NEWSPAPER GUILD, Plaintiff-Appellant, v. OTTAWAY NEWSPAPERS, INC., The Salem News Publishing Company, Inc., and Essex County Newspapers, Defendants-Appellees.
Case Date:April 03, 1996
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 1273

79 F.3d 1273 (1st Cir. 1996)

The NEWSPAPER GUILD OF SALEM, LOCAL 105 OF the NEWSPAPER

GUILD, Plaintiff-Appellant,

v.

OTTAWAY NEWSPAPERS, INC., The Salem News Publishing Company,

Inc., and Essex County Newspapers, Defendants-Appellees.

No. 95-1878.

United States Court of Appeals, First Circuit

April 3, 1996

Heard Oct. 2, 1995.

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the District of Massachusetts, Hon. Edward F. Harrington, U.S. District Judge.

Ruth A. Bourguin, Boston, MA, with whom Lois Johnson and Angoff, Goldman, Manning, Pyle, Wanger & Hiatt, P.C. were on brief for appellant.

Richard A. Perras, Boston, MA, with whom Steven M. Cowley and Edwards & Angell were on brief for appellees.

Before TORRUELLA, Chief Judge, BOWNES, Senior Circuit Judge, and STAHL, Circuit Judge.

TORRUELLA, Chief Judge.

Plaintiff-Appellant The Newspaper Guild of Salem, Local 105 of the Newspaper Guild, (the "Guild") appeals the district court's denial of its request for injunctive relief against Defendants-Appellees Ottaway Newspapers, Inc., The Salem News Publishing Co., and Essex County Newspapers (together, the "Publisher"). The district court denied the Guild's request for (i) an order compelling the Publisher to submit to arbitration grievances arising under their collective bargaining agreement concerning the Publisher's obligations to bargain a successor agreement and to honor the terms of their present agreement until those negotiations concluded and (ii) an order enjoining the Publisher from laying off members of the Guild, pending resolution of the Guild's grievances. For the following reasons, we dismiss the appeal in part as moot, and affirm in all other respects.

FACTUAL AND PROCEDURAL BACKGROUND

This case stems from the merger and consolidation of three newspapers. Essex County Newspapers ("ECN"), an unincorporated division of Ottaway Newspapers, Inc., publishes The Beverly Times and The Peabody Times, daily newspapers, from its plant in Beverly, Massachusetts. Effective March 15, 1995, ECN completed its acquisition of The Salem Evening News, a daily newspaper, published in Salem, Massachusetts. This acquisition was completed through the merger of the prior owner, the Salem News Publishing Company, into the Salem News Publishing Company, Inc., a wholly-owned subsidiary of Ottaway Newspapers, Inc. ECN is consolidating the three newspapers into one publication to be called The Salem Evening News. This consolidated daily is to be published from ECN's Beverly facility, which is less than five miles from the less modern Salem plant.

The district court noted that this consolidation was the principal reason for ECN's acquisition and that it required a reduction in the work force in order to avoid duplication. For over fifty years, the Guild has been the collective bargaining representative for the employees of the publisher of The Salem Evening News. The most recent collective bargaining agreement between the Guild and the former publisher of The Salem Evening News expired on March 31, 1995 (the "Agreement"). 1 Under Article 15 of the Agreement, its terms and conditions remain in effect during negotiations for a successor agreement. 2

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In January 1995, the Guild timely initiated negotiations for a successor agreement, and the first substantive bargaining session occurred on March 30, 1995. At that time, the Publisher began negotiations with all of the unions, including the Guild, at the Salem facility and presented the same basic proposal to each: elimination of jobs in Salem due to the consolidation, and layoff severance packages for those employees not offered employment in the consolidated operation. In a letter dated April 14, 1995, the Publisher communicated to the Guild "that [its] proposal is to negotiate a merger/consolidation agreement and not a long-term contract which [it] believe[s] would not be appropriate because a question of representation may be presented." (Appellant's Appendix, p. 143). The next bargaining session took place on May 5, 1995. Seventeen days later, in a letter dated May 22, the Guild notified the Publisher of its grievance that the Publisher was violating Article 15 of the Agreement "by its refusal to bargain a successor Agreement, by its failure to honor all terms and conditions of the current Agreement during the course of negotiations, and by its related conduct...." (Appellant's Appendix, p. 202). Subsequent bargaining sessions occurred on May 25, June 7, and June 13, 1995.

Soon thereafter, on June 21, the Guild filed a Demand for Arbitration with the American Arbitration Association, demanding that the Publisher arbitrate the Guild's grievance and that the Publisher be ordered to "bargain a 'new Agreement' within the meaning of Article 15.2, restore all status quo ante conditions pending such negotiations and make all affected employees whole." (Appellant's Appendix, p. 234). Two days later, on June 23, 1995, the Guild launched a double-barrelled attack. First, the Guild filed a Complaint pursuant to Section 301 of the Labor-Management Relations Act ("LMRA"), 29 U.S.C. § 185, as amended, 3 in the U.S. District Court of the District of Massachusetts, seeking injunctive relief in the form of an order compelling the Publisher to submit grievances arising under the Agreement to arbitration as well as a permanent injunction against layoffs of Guild employees in violation of Article 4.5 of the Agreement. 4 Second, it filed an unfair labor practice charge with the National Labor Relations Board (the "NLRB"), pursuant to Section 8 of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 158, as amended, asserting, inter alia, that the Publisher breached its obligations "to bargain collectively in good faith ... by refusing to bargain a successor agreement ... and by insisting instead on bargaining only a 'merger/consolidation' agreement." (Appellant's Appendix, p. 247). The Guild requested essentially the same relief as in its Complaint, including a request that the NLRB pursue an injunction against layoffs. (Appellant's Appendix, pp. 301-03).

After a hearing, the district court denied the Guild's motion for injunctive relief on July 24, 1995. The district court ruled that the grievance regarding the scope of negotiations was expressly excepted from the Agreement's arbitration provision, Article 12, which the Guild sought to enforce. The district court, finding that no employee layoffs had occurred during the negotiations, held that should any layoffs occur during negotiations it would entertain a renewed petition to enjoin them. The district court also noted that "[i]f any layoffs should occur after negotiations have been concluded, any unfair labor practice would lie within the jurisdiction of the [NLRB], before which body a case involving the same issues is presently pending." 5

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On July 28, 1995, the Guild filed this interlocutory appeal. A week later, on August 2, the Publisher notified the Guild that negotiations were at an impasse and that it would implement its final proposals unless the Guild was prepared to meet again or respond with counterproposals before noon on August 7. Having had no response, the Publisher notified the Guild on August 7 that negotiations for a merger/consolidation agreement were concluded and that layoffs would be effective August 21. On August 9, 1995, the Guild filed an amended unfair labor practice charge with the NLRB, challenging, among other things, the Publisher's unilateral declaration of impasse, conclusion of the negotiations and implementation of the layoffs. The Guild then filed an emergency motion with the district court on August 14, 1995, seeking an injunction prohibiting any layoffs pending resolution of this appeal. The emergency motion was denied on August 16, 1995. Two days later, the Guild filed two motions with this court seeking an injunction pending resolution of the appeal and for an expedited appeal. This court denied the former 6 and granted the latter.

Before us, then, is the Guild's appeal of the district court's July 24, 1995, order. The Guild argues that the district court erred by not applying the mandatory presumption in favor of arbitration and by failing to compel the Publisher to proceed to arbitration. It requests that the district court's order be reversed. The Guild also argues that the district court abused its discretion by refusing to enjoin the layoff of Guild members and requests that the status quo ante be restored. We have jurisdiction over this interlocutory appeal pursuant to 28 U.S.C. § 1292(a).

DISCUSSION

I

As a threshold matter, we must first address the Publisher's motion to dismiss this interlocutory appeal on the grounds that it is moot. The Publisher argues that both aspects of the Guild's appeal--regarding compelling arbitration and enjoining layoffs--has been rendered moot due to developments since the district court's decision; namely, the Publisher's declaration of impasse, the conclusion of the parties' negotiations, and the implementation of layoffs which the Guild sought to enjoin.

We address the layoffs first. An appeal from the denial of a motion for preliminary injunction is rendered moot when the act sought to be enjoined has occurred. See, e.g., CMM Cable Rep., Inc. v. Ocean Coast Properties, Inc., 48 F.3d 618, 621 (1st Cir.1995) ("no justiciable controversy exists because this appeal can no longer serve the intended harm preventing function, or, put another way, this court, ... has no effective relief to offer"); McLane v. Mercedes-Benz of N. Am., Inc., 3 F.3d 522, 525 (1st Cir.1993); Oakville Dev. Corp. v. FDIC, 986 F.2d 611, 613 (1st Cir.1993) ("When ... the act sought to be enjoined actually transpires...

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