Irwin v. Globe-Democrat Pub. Co.

• Decision Date: 08 April 1963
• Docket Number: No. 49026,No. 2,GLOBE-DEMOCRAT,49026,2
• Citation: 368 S.W.2d 452
• Parties: 52 L.R.R.M. (BNA) 2867, 53 L.R.R.M. (BNA) 2495, 47 Lab.Cas. P 50,786, 47 Lab.Cas. P 50,843 Harry IRWIN et al., Respondents, v.PUBLISHING COMPANY, a corporation, Appellant
• Court: Missouri Supreme Court

Page 452

368 S.W.2d 452

52 L.R.R.M. (BNA) 2867, 53 L.R.R.M. (BNA) 2495,

47 Lab.Cas. P 50,786, 47 Lab.Cas. P 50,843

Harry IRWIN et al., Respondents, v. GLOBE-DEMOCRAT PUBLISHING COMPANY, a corporation, Appellant.

No. 49026.

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 defendant-appellant.

William A. Geary, Jr., St. Louis, for respondents.

STOCKARD, Commissioner.

This is an appeal from a judgment wherein seventeen plaintiffs were awarded 'dismissal pay' in various amounts totaling $20,260.90 alleged to be due pursuant to the terms of a collective bargaining agreement between the St. Louis Paper Handlers, Sheet Straighteners and Stock Room Employees' Union No. 16 (hereafter referred to as 'Local No. 16'), affiliated with the International Printing Pressmen and Assistants' Union of North America AFLCIO, and the St. Louis Newspaper Publishers' Association, of which the Globe-Democrat Publishing Company (hereafter referred to as 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. 16, went on strike and established a picket line at the Globe-Democrat's place of operations. Although the collective bargaining agreement, under which the plaintiffs as members of Local No. 16 were working and upon which this suit is based, provided that members of Local No. 16 had a right to decline to cross a picket line only when the picket line resulted 'from a strike that has been sanctioned by the International Printing Pressmen and Assistants' Union of North America,' and the Guild strike was not so sanctioned, the plaintiffs declined to cross the Guild picket line, or at least they did not do so. On the day the Guild strike started 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 Globe-Democrat sent a telegram to the president of Local No. 16, which was received by him, in which it was stated that no 'lockout' of the members of Local No. 16 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.' No plaintiff presented himself for work.

On February 27, 1959, the Globe-Democrat sold to the St. Louis Post-Dispatch all of its physical property for the printing of its newspaper and entered into a contract with the Post-Dispatch whereby it would print the Globe-Democrat newspaper when the Guild strike ended. A notice of this sale was furnished to the president of Local No. 16 and to each plaintiff. Prior to February 27, 1959 eleven of the plaintiffs had accepted employment with the Post-Dispatch, and shortly thereafter and before the Guild strike ended, the remaining plaintiffs accepted such employment. On May 27, 1959, the day the Guild strike terminated, a number of the plaintiffs and the president of Local No. 16 went to a place near the Globe-Democrat building and the president called the personnel director of the Globe-Democrat by telephone and asked 'if they wanted them to come into the plant,' and was advised that 'they were no longer employed by the Globe-Democrat Publishing Company.'

By this suit plaintiffs as third party beneficiaries, Baron v. Kurn, 349 Mo. 1202, 164 S.W.2d 310, 142 A.L.R. 787, seek to recover 'dismissal pay' pursuant to a collective bargaining agreement between Local No. 16 and the St. Louis Newspaper Publishers' Association, the relevant provisions of which are as follows:

'Article XII. Dismissal Pay. Sec. 1. In the event of merger, consolidation or permanent suspension of publication by any newspaper covered by the Agreement all employes who lose employment thereby shall receive dismissal pay as follows:

'(a) Employes who have held regular situations for more than six (6) months but less than one (1) year shall be paid six (6) weeks' dismissal pay.

'(b) Employes who have held regular situations for more than one (1) year shall be paid twelve (12) weeks' dismissal pay.

'Sec. 2. Any employe who has held a regular situation for one (1) year or more who is laid off to reduce the force shall receive dismissal pay on the basis of one (1) week's pay for each year of continuous priority.

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

'Sec. 4. When an employe is laid off due to a reduction in force he shall hold re-employment rights in the chapel from which he was laid off for a period of one (1) year. Refusal of an employe to take a job in chapel, when called back to work, shall waive his re-employment rights.'

Plaintiffs alleged in their petition that they 'were laid off to reduce the force of defendant, thereby entitling them to receive dismissal pay under Sections 2 and 3 of Article XII of said Collective Bargaining Agreement.' They further alleged the circumstances of the sale by the Globe-Democrat of its printing facilities, and that upon termination of the Guild strike on May 27, 1959, they presented themselves at the defendant's place of business 'ready, willing and able to continue their employment, but plaintiffs were then notified of their lay-off by defendant.' Prior to the trial each plaintiff made answers to interrogatories under oath and stated therein that the 'last date he was employed by defendant' was May 27, 1959, and that 'he was laid off by defendant at that time.' Notwithstanding the allegations in their petition and the above answers to the interrogatories, which were not amended, plaintiffs submitted their case to the jury, and now contend on this appeal, that they were "laid off to reduce the force' on February 27, 1959,' because on that day the Globe-Democrat 'contracted away the printing of its newspaper,' sold the tools 'necessary to fulfill those operations,' and notified plaintiffs of the sale. 'Taken together,' plaintiffs contend, 'the circumstances operate to entitle respondents to dismissal pay under Article XII, Section 2 of their contract.' This change in position apparently was believed necessary because the collective bargaining agreement upon which this suit is based, by its express terms, expired on December 31, 1958. It was then extended by oral agreement to March 2, 1959, but was not further extended insofar as the Globe-Democrat was concerned, and a new agreement was negotiated between Local No. 16 and the St. Louis Post-Dispatch only, which was executed on May 13, 1959, two weeks before the Guild strike was terminated. At that time each and all plaintiffs had accepted employment at the Post-Dispatch.

On this appeal the Globe-Democrat contends that plaintiffs are bound by their pleadings and the answers to their interrogatories and as a result they did not establish the occurrence of a layoff to reduce the force while a contract was in existence. It also contends that if the pleadings and answers to interrogatories be ignored and it be considered that plaintiffs' employment was terminated on February 27, for the reasons and under the circumstances contended by plaintiffs, the termination did not amount to a layoff to reduce the force. In view of our ruling on the second contention we need not rule the first.

The collective bargaining agreement does not provide for 'dismissal pay' in all situations where the employment status is terminated, other than those specifically excepted, as do some and probably most labor agreements. See Globe-Democrat Publishing Company v. 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; 40 A.L.R.2d 1044. On the contrary, it provides for 'dismissal pay' in only certain specifically defined situations, and in doing so it relieves the employer of any liability for 'dismissal pay' in all other situations. In determining whether the termination of employment at the time and for the reasons asserted by plaintiffs constituted one of the specific situations in which dismissal pay is required to be paid, the collective bargaining agreement is subject to the same rules of interpretation as other contracts and should be realistically construed to accomplish its evident aims. 56 C.J.S. Matter and Servant Sec. 28(41)a.

Plaintiffs make no contention that they are entitled to 'dismissal pay' pursuant to Section 1 of Acticle XII of the agreement. Their claim is based solely on the theory that their employment status was terminated on February 27, 1959, and that that termination constituted a layoff to reduce the force. 'The term 'layoff', in the field of employment, has a well-defined meaning. * * * It does not mean termination of employment, but rather does it mean: 'The act of laying off, esp. work or workmen; a period of being off or laid off work; a shutdown; a respite.'' ACF Industries, Inc. v. Industrial Commission, Mo., 320 S.W.2d 484, 491. As stated in 56 C.J.S. Master and Servant, Sec. 29, "Labor separations' are classified as 'quits,' * * *, 'discharges' * * *, and 'layoffs,' which have been defined as terminations of employment at the will of the employer, without prejudice to the worker, and may be due to lack of orders, technical changes, or the failure of flow of parts or materials to the job, as...