Allen v. Globe-Democrat Pub. Co.

• Citation: 368 S.W.2d 460
• Decision Date: 08 April 1963
• Docket Number: GLOBE-DEMOCRAT,No. 2,No. 49089,49089,2
• Parties: 52 L.R.R.M. (BNA) 2861, 53 L.R.R.M. (BNA) 2497, 47 Lab.Cas. P 50,787, 47 Lab.Cas. P 50,844 Walter H. ALLEN et al., Respondents, v.PUBLISHING COMPANY, a corporation, Appellant
• Court: United States State Supreme Court of Missouri

Page 460

368 S.W.2d 460

52 L.R.R.M. (BNA) 2861, 53 L.R.R.M. (BNA) 2497,

47 Lab.Cas. P 50,787, 47 Lab.Cas. P 50,844

Walter H. ALLEN et al., Respondents, v. GLOBE-DEMOCRAT PUBLISHING COMPANY, a corporation, Appellant.

No. 49089.

Supreme Court of Missouri, Division No. 2.

April 8, 1963.

Motion for Rehearing or to Transfer to Court En Banc Denied

June 4, 1963.

Hocker, Goodwin & MacGreevy, Lon Hocker, St. Louis, for appellant.

Morris J. Levin and S. Sheldon Weinhaus, St. Louis, for respondents.

STOCKARD, Commissioner.

This appeal is taken from the judgment of the Circuit Court of the City of St. Louis wherein eighteen plaintiffs were awarded 'dismissal pay' in various amounts totaling $27,180.60 alleged to be due pursuant to the terms of a collective bargaining agreement between the St. Louis Stereotypers' Union No. 8 of the International Stereotypers' and Electrotypers' Union, AFL-CIO (hereafter referred to as 'Local No. 8'), of which all plaintiffs are members, and the St. Louis Newspaper Publishers' Association, of which the 'Globe Democrat' was a member.

On February 21, 1959 certain employees of the Globe-Democrat who were members of the St. Louis Newspaper Guild, a labor union not directly affiliated with Local No. 8, went on strike and established a picket line at the Globe-Democrat's place of operations. All the plaintiffs voluntarily refused, or at least failed, to cross the Guild picket line and report for work, except Albert W. Ebeling who entered the Globe-Democrat building on the first day of the strike, stayed for a little less than an hour and then departed and did not again return. On February 21, 1959 the publisher of the Globe-Democrat sent a letter to each plaintiff in which he stated, among other things, 'I regret very much that the Globe-Democrat will not be able to publish its Sunday edition because of a strike by the St. Louis Newspaper Guild. It does not appear probable that publication will be resumed in the immediate future.' On the following day the president of Local No. 8 received a telegram from the Globe-Democrat in which it was stated that no 'lockout' of the members of Local No. 8 existed, and that 'Any Globe-Democrat employee member of your union who has presented himself today or continues to report for work at his accustomed place of work on his regular work days and hours will be put to work and paid his regular day's pay at the straight time rate until the work stoppage caused by the Newspaper Guild is ended or until further notice.' The president read this telegram to the members of Local No. 8 at a meeting but none of the plaintiffs reported for work.

On February 27, 1959, while the Guild strike was still in progress, the Globe-Democrat sold to the Pulitzer Publishing Company (hereafter referred to as the 'Post-Dispatch'), which published the St. Louis Post-Dispatch newspaper, its principal physical properties and entered into a contract with the Post-Dispatch whereby it would print the Globe-Democrat newspaper 'from the date when Globe-Democrat Publishing Company is prepared to resume publication following the settlement of the present strike of its employees.' The sale resulted in a transfer to the Post-Dispatch of all of the equipment used by the plaintiffs in their previous employment with the Globe-Democrat as stereotypers. A notice by letter of this sale was furnished to each plaintiff and to the representative of Local No. 8 which stated, in part, as follows:

'To effect greater economy and efficiency in mechanical operaton, The Globe-Democrat today entered into an agreement with the St. Louis Post-Dispatch under which The Globe-Democrat will be printed by the Post-Dispatch, when and if the Guild strike is settled.

'The sale is of the physical property only. The editorial, advertising, circulation and business departments of the two newspapers will be entirely separate. The Globe-Democrat will continue as a completely independent newspaper in every sense of the word.

'The consolidation of mechanical operations between competing newspapers finds great precedent in many cities throughout America, a list which we suspect may grow larger in the future as the mechanical costs of publishing a daily newspaper continue to rise. The editorial, advertising, circulation and business independence of these newspapers has not in any way been affected. I assure you that it will not be affected in St. Louis.

* * *

* * *

'Members of the mechanical unions will be employed on a priority basis in the consolidated mechanical operation. If they all cannot be employed, the dismissal provisions of the current mechanical contracts will apply.

* * *

* * *

'I can assure you that The Globe-Democrat will continue in the future, as it has in the past, as an independent newspaper and as a mighty force for good in St. Louis, in Missouri and in America.'

On May 27, 1959, the Guild strike terminated, and throughout the entire period of the strike the Globe-Democrat maintained the status of plaintiffs as employees, insofar as its contributions were called for under the Blue Corss-Blue Shield program and group life insurance program. None of the plaintiffs, with the one minor exception previously noted, worked for the Globe-Democrat during the Guild strike or after its termination. Most of the plaintiffs took employment as stereotypers with the Post-Dispatch.

The provision in the collective bargaining agreement under which plaintiffs seek to recover 'dismissal pay' is as follows:

'ARTICLE VII

'Dismissal Pay

'Section 1. Any employe who has had a regular situation for more than one year who is laid off to reduce the force shall receive dismissal pay on the basis of one week's pay for each year of continuous employment.

'Section 2. In the event of merger, consolidation or permanent suspension of publication by any newspaper covered by this agreement all employes who lose employment thereby shall receive dismissal pay as follows:

'Employes who have held regular situations for more than six months but less than one year shall be paid six weeks' dismissal pay.

'Employes who have held regular situations for more than one year shall be paid twelve weeks' dismissal pay.

'Section 3. Dismissal pay shall be at the employe's regular straight time rate of pay as of the time of dismissal.'

The collective bargaining agreement does not provide for 'dismissal pay' to an employee in any and all situations wherein the employment status is terminated, other than those specifically excepted, as do some and probably most labor agreements. See Globe-Democrat Publishing Company v. The Industrial Commission, Mo.App., 301 S.W.2d 846; Talberth v. Guy Gannett Publishing Company, 149 Me. 286, 100 A.2d 726, 40 A.L.R.2d 1036; Matthews v. Minnesota Tribune Co., 215 Minn. 369, 10 N.W.2d 230, 147 A.L.R. 147; and the cases collected in the annotation at 40 A.L.R.2d 1044. Instead, the agreement provides for 'dismissal pay' in only certain specifically defined and delimited situations, and in doing this the Globe-Democrat is relieved from the duty or obligation to make such payment in all other situations. Plaintiffs base their claim on the provision in Section 2 of Article VII of the agreement which obligates the Globe-Democrat to make payment of 'dismissal pay' to 'all employes who lose employment' in the event of the 'permanent suspension of publication by any newspaper covered by this agreement.' While they alleged in their petition that the Globe-Democrat notified them of their dismissal 'and the permanent suspension of the printing of its own newspaper,' their main instruction directed a verdict on the basis of a finding that there was 'a permanent suspension of publication * * * as the term * * * appears and was used in the said collective bargaining contract.' Our ultimate ruling makes it unnecessary to rule on certain questions presented by the Globe-Democrat concerning the submission of such an issue to the jury in that manner.

On this appeal the Globe-Democrat contends that the facts proved by plaintiffs do not authorize a finding of 'a permanent suspension of publication.' Plaintiffs contend, on the other hand, that (1) the allegation of a 'permanent suspension of printing' is the ultimate fact from which the court and jury could find that a 'permanent suspension of publication' occurred; (2) the use of the term 'suspension of publication' in the collective bargaining agreement which provided 'for the performance of certain mechanical operations relating solely to printing has reference to, and in the context used is intended to mean and require as a necessary element, the physical act of cessation of the printing and other mechanical operations;' and (3) the term 'publication' and its derivatives is in its various contexts synonymous with the term 'printing' and its derivatives. Plaintiffs also argue that the Globe-Democrat 'would have the court believe that the plaintiffs were expert lexicographers well aware of the fine etymological distinctions' between the words 'printing' and 'publish.' This latter argument apparently is directed to the issue as to what the parties to the collective bargaining agreement intended when the terms thereof were negotiated and agreed to. While plaintiffs as third party beneficiaries are entitled to enforce the terms of the collective bargaining agreement inserted therein for their benefit, Baron v. Kurn, 349 Mo. 1202, 164 S.W.2d 310, 142 A.L.R. 787; 31 Am.Jur. Labor Sec. 128, they are not parties to the agreement. They must rely on the terms of the agreement as agreed to by the parties thereto, and the agreement is subject to the same rules of interpretation as other contracts. 56 C.J.S. Master and Servant Sec. 28(41)a.

Our first impression was that the term 'permanent suspension of publication' was plain, clear and unambiguous, that no construction was called for, and that this unequivocal language should be given its plain meaning and enforced as written. See ...