Baker v. Newspaper and Graphic Communications Union, Local 6

Decision Date28 April 1980
Docket NumberNo. 78-2332,78-2332
Citation628 F.2d 156
Parties104 L.R.R.M. (BNA) 2197, 202 U.S.App.D.C. 156, 88 Lab.Cas. P 12,022 Paul J. BAKER et al., Appellants, v. NEWSPAPER AND GRAPHIC COMMUNICATIONS UNION, LOCAL 6, et al.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 77-2186).

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

Zachary D. Fasman, Washington, D. C., with whom Willis J. Goldsmith, Washington, D. C., was on brief, for appellee, Evening Star Newspaper Co.

Neal P. Rutledge, Washington, D. C., with whom Robert B. Cornell, Washington, D. C., was on brief, for appellee, International Printing and Graphic Communications Union.

James R. Klimaski, Washington, D. C., with whom William N. Anspach and Katharyn M. Marks, Washington, D. C., were on brief, for appellee, Local 6, Newspaper and Graphic Communications Union.

Before LUMBARD *, Senior Circuit Judge, United States Court of Appeals for the Second Circuit, and TAMM and MIKVA, Circuit Judges.

Opinion for the Court filed by Circuit Judge MIKVA.

MIKVA, Circuit Judge:

Five pressmen at the Washington Star were unhappy with the results of a collective bargaining agreement negotiated by their union with the newspaper. They brought this suit in the district court on a variety of claims against the newspaper company, the local union and the international union. The court below granted summary judgment for the defendants, concluding that there was no actionable contract violation, and no breach of federal labor law, either as to the unions' duty to render fair representation in collective bargaining or as to the plaintiffs' right to free speech and participation in union affairs. Baker v. Newspaper & Graphic Communications Union, Local 6, 461 F.Supp. 109 (D.D.C.1978). As to the Evening Star Newspaper Co. (Star), which publishes the Washington Star and employs these pressmen, we agree that there was no actionable claim. As to the unions, we are precluded from determining whether there were any contractual violations because the court's jurisdiction "must yield to the exclusive primary competence of the (National Labor Relations) Board." San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 245, 79 S.Ct. 773, 779, 3 L.Ed.2d 775 (1959). As for the plaintiffs' other claims against the unions, we affirm the judgment of the district court.


Prior to 1973, Local 6 of the International Printing Pressmen and Assistants' Union of North America represented the pressmen at the Star, and Local 19 of the International Stereotypers', Electrotypers' and Platemakers' Union represented the stereotypers. The two international unions merged into the International Printing and Graphic Communications Union (hereinafter called "International"). The two local unions, as a result of extensive negotiations, similarly consummated a merger agreement, pursuant to which the merged Local 6, affiliated with the International, would represent both the pressmen and the stereotypers at the Star.

The stereotypers, smaller of the two groups, had long been suffering the problems of automation and changing technology, and were something of an endangered species. As one of the conditions of the local merger agreement, the parties agreed that if the stereotype department was eliminated at the Star, the stereotypers would be able to retrain for available jobs in the pressroom before new personnel were hired. In return, the pressmen demanded and obtained a clause requiring that retrained stereotypers would be subject to "endtailing," as opposed to "dovetailing," for purposes of future layoffs and other work conditions. As the term implies, endtailing would put all of the stereotypers below any of the pressmen then employed with respect to seniority, thereby requiring that all stereotypers be laid off prior to any pressman. Dovetailing, on the other hand, would rank the stereotypers on the same roster as the pressmen: the seniority of each employee would be measured by his years of employment at the Star.

In 1975, at the time of collective bargaining negotiations with the merged Local 6, the Star was undergoing serious financial problems. One of the demands made by the Star was to close the stereotyping department and dovetail its employees with the pressmen in the pressroom. Underlying the Star's insistence on dovetailing, rather than endtailing, was its obligation to maintain an earlier pledge of lifetime employment to the stereotypers. See Washington, D. C. Stereotypers Union 19, 181 N.L.R.B. 784, 788 (1970). Because of that pledge, endtailing the stereotypers would have precluded any reduction of the pressroom force. Dovetailing, on the other hand, would allow the Star to discharge some of the pressmen and use instead the stereotypers who had been promised lifetime jobs. The expected savings in pressroom costs became a major bargaining goal of the Star. The endtailing provision of the local merger agreement was not raised by the union at the bargaining table.

The Star's proposal was ultimately accepted by the bargaining team for Local 6 and was incorporated into what the parties called the "Survival Agreement." In April of 1976, the Survival Agreement was submitted to the entire membership of the merged Local 6 for ratification. The ratification meeting was lengthy and apparently lively. After the agreement was read, item by item, a question and answer period followed. The entire agreement was then put to a vote and ratified, 99 to 44.

Following Local 6's acceptance of the Survival Agreement, the Star dovetailed seven stereotypers into the seniority list of approximately 75 pressmen. The plaintiffs are some of the pressmen whose seniority was adversely affected by this result. After an unsuccessful appeal to the International, they brought this lawsuit.


Plaintiffs claim that the conduct of the defendants breached various contractual obligations owed to them. They contend that the commitment to endtail the stereotypers was contained not only in the merger agreement between the two local unions, but also in the post-merger International constitution and in the post-merger Local 6 constitution. The plaintiffs also complain of violations of pre-merger collective bargaining agreements between Local 6 and the Star. We turn first to the claims against the Star, which are the most attenuated, and then to the claims against the unions, which require more attention.

A. Claims Against the Star

It is difficult to comprehend how the collective bargaining agreements covering the period prior to the merger may have been breached. The law is clear that any seniority rights founded on those agreements terminated upon the advent of the new agreement. "Seniority is wholly a creation of the collective agreement and does not exist apart from that agreement. The incidents of seniority can be freely altered or amended by modification of the collective agreement." Local 1251, UAW v. Robertshaw Controls Co., 405 F.2d 29, 33 (2d Cir. 1968) (en banc); accord, Ekas v. Carling Nat'l Breweries, Inc., 602 F.2d 664 (4th Cir. 1979), cert. denied, 444 U.S. 1017, 100 S.Ct. 669, 62 L.Ed.2d 646 (1980). Plaintiffs seek to convert their pre-existing seniority rights into a "shop practice" which would not be affected by subsequent changes in collective bargaining agreements. Whatever the indelibility of shop practices, 1 such a conversion is hardly possible when the collective bargaining agreements were the original source of the seniority rights. Plaintiffs cite Houston Chronicle Publishing Co., 145 N.L.R.B. 1657 (1964), where the National Labor Relations Board (Labor Board) found that a union work rule had been recognized as binding by the employer and the union, apart from the collective bargaining agreement between them. The Labor Board accordingly rejected an employee's claim that enforcement of the union work rule by the employer was an unfair labor practice. No such fact situation exists here where both the Star and Local 6 deny that there was any "rule" regarding work priorities beyond the rights conferred by individual collective bargaining contracts.

In view of the plaintiffs' inability to support their naked allegation that the Star colluded with Local 6, see note 12 infra, and since the Star clearly lacked any fiduciary duty toward the plaintiffs in the course of collective bargaining, cf. Harrison v. United Transportation Union, 530 F.2d 558, 561 (4th Cir. 1975), cert. denied, 425 U.S. 958, 96 S.Ct. 1739, 48 L.Ed.2d 203 (1976), there is no other basis for liability on the part of the Star. 2

B. Preemption

Plaintiffs insist they have a contractual claim arising under the local merger agreement and the union constitutions. Whatever the merit of the plaintiffs' position, we must conclude that a federal court is not the place to seek its vindication. At most the plaintiffs present a question which lies within the special province of the Labor Board.

In reviewing the undisputed facts, the plaintiffs appear to have stated at least a colorable breach-of-contract claim under local law. While they point to three different sources for their alleged contractual rights, 3 the pertinent language, reasonably common to all of the documents involved, is in the merger agreement between old Local 6 of the pressmen's union and Local 19 of the stereotypers. Under that agreement, endtailing of displaced personnel was stated as a condition of the merger. The agreement seems to have all of the elements necessary to constitute a contract between the parties. Both union memberships gave up some autonomy and rights, both relied on the covenants contained in the merger agreement, and, indeed, the defendant unions do not seriously contend the absence of a contract. The covenants undertaken in that agreement would appear to have been breached when...

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