Heheman v. E.W. Scripps Co.

Decision Date10 November 1981
Docket Number80-3024,Nos. 80-3017,s. 80-3017
Parties108 L.R.R.M. (BNA) 2736, 92 Lab.Cas. P 13,089, 7 Media L. Rep. 2229 Bernard J. HEHEMAN, et al., Plaintiffs-Appellants, Cross-Appellees, v. The E. W. SCRIPPS COMPANY, Defendant-Appellee, Cross-Appellant, and The Cincinnati Enquirer, A Corporation Organized Under The Law of Ohio, Defendant-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

John A. Lloyd, Jr., Barbara Bison Ford, Stanley M. Chesley, Michael Boylan, Cincinnati, Ohio, for plaintiffs-appellants, cross-appellees.

James W. Hengelbrok, Davis, Hengelbrok & Sachs, Cincinnati, Ohio, John R. Ferguson, Janine H. Coward, Myron L. Dale, Washington, D. C., Jonathan E. Thackeray, Charles T. Price, Baker & Hostetler, Cleveland, Ohio, for defendant-appellee, cross-appellants.

J. Mack Swigert, Taft, Stettinius & Hollister, Roger Weber, Roger D. Staton, McIntosh, McIntosh & Knabe, Paul R. Reiners, Cincinnati, Ohio, for Cincinnati Enquirer.

Ronald Rosenberg, George Driesen, Jeffrey Freund, Van Arkel, Kaiser, Gressman, Rosenberg & Driesen, Washington, D. C., for amicus curiae AFL-CIO.

Frank M. Northam, Hanson, O'Brien, Birney & Butler, Washington, D. C., for amicus curiae American Newspaper Publishers Association.

Before ENGEL and MERRITT, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

MERRITT, Circuit Judge.

In this case we are called upon to decide what effect should be given to an agreement in the newspaper industry guaranteeing lifetime job security for printers. The newspaper terminated the workers covered by the agreement following a partial reorganization and merger. We reverse the decision of the District Court which declined to give full effect to the job security agreement.

I. STATEMENT OF THE CASE

By the late 1960's, new computer technology was beginning to work dramatic changes in traditional relationships between publishers and printers in the newspaper industry. Computers that could "scan" typewritten scripts and directly typeset their words without retyping by printers made it possible for highly skilled linotype operators to be replaced by less skilled employees and computerized equipment.

Like other newspapers across the country, the Cincinnati Post and the Cincinnati Enquirer were affected. A letter of understanding signed with a 1973 collective bargaining agreement between the Cincinnati Daily Newspaper Publishers Association, the negotiating agent of the Post and the Enquirer, and the Cincinnati Typographical Union Number Three, which included the printers for both papers, made explicit reference to changes that might be precipitated by the new technology. The letter noted that the parties agreed to defer discussions of the printers' job security until the effects of equipment the newspapers might introduce could be foreseen more precisely. Those discussions led to the execution of what the parties called the "Scanner Agreement" on June 10, 1974. Signed by representatives of the Post and the typographical union, it is quite short. It details new equipment the newspaper would install and describes its effects on full-time employees-called "situation holders." And it appears, through language that lies at the center of the parties' dispute, to guarantee named situation holders lifetime employment in exchange for their acceptance of the new equipment:

Job Security

The Post and Times-Star agrees that all regular situation holders and apprentices who will become regular situation holders, as listed in the Post's priority list dated May 1, 1974, will be continuously employed for the remainder of their working lives by The Post as printers, subject to voluntary terminations, voluntary retirements, disability retirements: as prescribed and defined in F.I.C.A. (Social Security Act) and involuntary terminations for just cause, as provided in Section 21 of the Contract. In case a strike, lockout or "act of God" results in a period of temporary suspension of the employer's composing room operation, the job security will be suspended for such period of temporary suspension of operation only. This Job Security Agreement shall supersede any and all existing contracts and/or agreements between The Post and Times-Star and the Union for said named employees, and is permanent unless cancelled by mutual agreement of both The Post and the Union.

During such continuous employment of such an employee by The Post as a printer, he or she will be paid the then applicable wage scale for printers (and covered by any other terms and conditions of employment) which are negotiated and set forth in the existing and any and all succeeding collective bargaining agreements between The Post and the Union. The Post and Times-Star, in addition to its commitment to provide the aforementioned job security to certain named printer employees, has assured the Union that in the future it will continue to make composing room job opportunities available to such employees so that they can continue to perform meaningful and gainful work for The Post. (Emphasis added.)

The Scanner Agreement also contains a buyout clause providing from $1000 to $10,000 to those regular situation holders who voluntarily leave the Post within specified time periods. The Agreement provides a lesser guarantee to substitute printers; it guarantees them that they would be offered five days work per week until February 29, 1976. In 1976 a renewal collective bargaining agreement was signed, to be effective until March 1, 1981. It provides that in pertinent part the 1974 Scanner Agreement was to remain in effect, and it provided further incentives for situation holders who chose to retire early.

Faced with continuing financial difficulties despite the industry's technological advances, the Post entered into negotiations with the Enquirer with the aim of reducing costs by combining some operations. In September 1977 the newspapers executed a joint operating agreement that provided, inter alia, for the Post to be composed and printed by the Enquirer. On grounds that the Post qualified as a "failing newspaper" under the provisions of the Newspaper Preservation Act, 15 U.S.C. § 1801 et seq. (1976), the Post applied to the Attorney General of the United States for an exemption to antitrust laws that would otherwise prohibit the arrangement between competitors. The joint operating agreement was to take effect after written consent was granted by the Attorney General. Hearings on the application were held before an administrative law judge. They lasted nearly seven weeks and created a transcript over 6000 pages long. Plaintiffs and the International Typographers Union participated in them. The administrative law judge issued a 143-page recommended decision in May 1979. He concluded that the Post was "in probable danger of financial failure," the standard imposed by 15 U.S.C. § 1802(5), and that approval of the joint operating agreement would effectuate the purposes of the Newspaper Preservation Act. The administrative law judge's conclusions were adopted by the Attorney General in November 1979, and the Cincinnati newspapers were thereby granted an exemption from the antitrust laws.

The next month the Post's composing room was closed, and all the printers were fired.

In December 1977, having received word that they would lose their jobs, more than one hundred situation holders and substitute printers filed this suit in the Southern District of Ohio against the publisher of the Post, E. W. Scripps Co., and the Cincinnati Enquirer, Inc. Jurisdiction was based on § 301 of the Labor Management Relations Act, 29 U.S.C. § 185. They claimed breach of their collective bargaining agreement, and they claimed that the Enquirer, by taking over the Post's printing operations, had tortiously interfered with the lifetime employment provisions of the Scanner Agreement. Their claims for damages for those actions are before this court. Plaintiffs also set out due process and antitrust claims, and Scripps counterclaimed for tortious interference with its negotiating rights. Those claims were dismissed, and their dismissal has not been appealed.

In July 1978 the District Court granted summary judgment against the substitute printers. In August 1979 it granted summary judgment against the situation holders on their tortious interference claim against the Enquirer. In November 1979, on cross-motions for summary judgment, the court held that the situation holders were entitled to damages for breach of the Scanner Agreement but that because the Scanner Agreement was dependent on the 1976 collective bargaining agreement, the Scanner Agreement expired when the underlying agreement expired in 1981. The court held that the situation holders had no obligation to mitigate damages for the period running from the time they were discharged until the 1981 expiration. Each of the rulings described in this paragraph is before this court.

II. THE LIFETIME EMPLOYMENT GUARANTEE OF THE SCANNER AGREEMENT

There can be little dispute about the apparent guarantee of the Scanner Agreement. It provides, quite simply, that all regular situation holders "will be continuously employed for the remainder of their working lives by the Post." The guarantee of continuous employment is subject only to voluntary terminations or retirements, disability retirements, and involuntary terminations for just cause. The guarantee is more than a promise to provide compensation; the newspapers promised "to make composing room job opportunities available ... so that (the printers) can continue to perform meaningful and gainful work." Scripps does not challenge that language on its own terms. It argues, rather, that the apparent guarantee of lifetime employment is now ineffective, for two reasons. It argues first that because the Scanner Agreement explicitly incorporates terms of and is otherwise dependent on collective bargaining agreements...

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