Monterosso v. St. Louis Globe-Democrat Pub. Co., GLOBE-DEMOCRAT

• Decision Date: 08 April 1963
• Docket Number: GLOBE-DEMOCRAT,No. 1,No. 49603,49603,1
• Citation: 368 S.W.2d 481
• Parties: 52 L.R.R.M. (BNA) 2855, 47 Lab.Cas. P 50,794, 47 Lab.Cas. P 50,845 Joseph P. MONTEROSSO et al., Appellants, v. ST. LOUISPUBLISHING COMPANY, Respondent
• Court: Missouri Supreme Court

Page 481

368 S.W.2d 481

52 L.R.R.M. (BNA) 2855, 47 Lab.Cas. P 50,794,

47 Lab.Cas. P 50,845

Joseph P. MONTEROSSO et al., Appellants, v. ST. LOUIS GLOBE-DEMOCRAT PUBLISHING COMPANY, Respondent.

No. 49603.

Supreme Court of Missouri, Division No. 1.

April 8, 1963.

Motion for Rehearing or to Transfer to Court En Banc Denied

June 4, 1963.

Jerome J. Duff and John D. Chancellor, St. Louis, for appellants.

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

HOUSER, Commissioner.

This is an action by sixty-four members of St. Louis Mailers' Union, Local No. 3 of the International Typographical Union against the corporate publisher of St. Louis Globe-Democrat for vacation pay, severance pay, and penalties under Sec. 290.090, V.A.M.S., under a collective bargaining agreement. Tried to the court without a jury on an agreed statement of facts, the court rendered judgment for plaintiffs for $17,462.90 plus interest for vacation pay, but denied plaintiffs' other claims. Globe-Democrat did not appeal. Plaintiffs appeal from the order and judgment overruling their after-trial motions, now contending that in denying their claims for severance pay and penalties and interest (totaling more than $140,000) the court misconstrued the contract. We have jurisdiction because the amount in controversy exceeds $15,000, and we consider the appeal on its merits notwithstanding plaintiffs did not appeal from the judgment on the merits, because that was the evident intention of plaintiffs.

Plaintiffs were employees of and 'regular situation holders' with the Globe-Democrat. The terms of their employment were governed by a collective bargaining contract between Mailers' Union and St. Louis Newspaper Publishers' Association. The association consists of the two corporations which publish the St. Louis Post-Dispatch and the St. Louis Globe-Democrat. The contract consisted of a preamble and sixteen articles relating to Jurisdiction, Hiring, Disputes and Discharges, Wages and Hours, Foremen, Priority, Military Service, Apprentices, Holidays, Vacations, Dismissal Pay, Jury Service-Voting Time--Funeral Pay, Sickness and Disability Benefits, and other miscellaneous matters.

We are particularly concerned with Article XI, Dismissal Pay:

'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 priority.

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

'(a) Employes having six months priority standing, six (6) weeks' pay.

'(b) Employes having one year or more priority standing, twelve (12) weeks' pay.

'3. Such dismissal pay or severance pay shall be at the employe's regular straight time rate of pay. Priority standing shall be as recorded on the books of chapel officers and the books of the Publishers at the time of such lay off, suspension, merger or consolidation.'

Other provisions should be particularly noted.

Paragraph 6 of the Preamble provides that the refusal of employes to cross a picket line where a strike sanction has been issued by International Typographical Union does not constitute breach of contract, and shall not effect employes' accrued benefits and rights (except the employe would not be paid for time lost as a result of his refusal to cross a picket line).

Paragraph 8 of the Preamble provides: 'All wages, vacation credits and severance pay credits shall be considered as an earned equity and shall have prior claim in the event of merger, permanent suspension or liquidation. The cash equivalent of any such earned equity shall be paid immediately upon any employe's severance of employment as a result of such merger, permanent suspension or liquidation.'

Paragraph 7, Article IV states in dollars and cents what the 'wages of all journeymen' shall be, on an hourly, daily and weekly basis.

On February 21, 1959, at about 2:30 a. m., a strike was begun by St. Louis Newspaper Guild, which was the bargaining representative of Globe-Democrat employees in editorial, business and maintenance classifications (not the bargaining representative of plaintiffs). A picket line was erected around the premises of Globe-Democrat from that time to the date of the settlement of the strike, May 27, 1959.

Plaintiffs refused to cross the picket line of the Guild, and none of the plaintiffs reported to Globe-Democrat for work from the time the picket line was put up.

All of the plaintiffs took employment elsewhere during the period between February 21 and June 1, 1959, when publication of Globe-Democrat was resumed following settlement of the Guild strike.

After February 27, 1959 the Mailers' Union 'froze' the 'priority board' at Post-Dispatch and members of the Mailers' Union taking employment at Post-Dispatch remained in the capacity of 'extras' (not regular situation holders) and acquired no priority standing until some time after June 1, 1959. Their wage rates and conditions of employment at Post-Dispatch continued as set forth in the collective bargaining contract described above.

On February 27, 1959, the corporations which publish Globe-Democrat and Post-Dispatch entered into a contract by which Globe-Democrat sold its principal physical properties, subject to a temporary lease-back of business and editorial quarters, to Pulitzer Publishing Company, publisher of St. Louis Post-Dispatch, and by which Globe-Democrat was to be printed for this defendant by Pulitzer following the settlement of the strike. Pursuant to the contract Globe-Democrat executed a deed conveying to Pulitzer the building in which it had conducted its business and accounting offices, and a bill of sale to the bulk of its mechanical equipment, presses and machinery, including all of the equipment used by plaintiffs in their normal employment with Globe-Democrat. On February 27, 1959 the president and publisher of Globe-Democrat notified the representatives of all of the mechanical crafts, including plaintiffs' representatives, and mailed a letter to all employees, in part as follows:

'To effect greater economy and efficiency in mechanical operation, 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, * * * as the mechanical costs of publishing a daily newspaper continue to rise. * * *.

'This move is made necessary because of the demands of the St. Louis Newspaper Guild. * * *.

'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. * * *.'

Throughout the period of the strike Globe-Democrat maintained the status of plaintiffs under the Blue Cross-Blue Shield program and group life insurance program.

In the opinion of the business manager and publisher of Globe-Democrat it would have been possible, notwithstanding the strike, to have prepared for printing and to have published Globe-Democrat during the period February 21-27, 1959, using supervisory personal not on strike for the production of news content and advertising copy, if enough of the employees, members of the mechanical crafts, had been willing to cross the picket line to do the necessary mechanical work, and after February 27, 1959 it would have been possible to have rented mechanical equipment at some other print shop in the St. Louis area and to have printed a much curtailed and limited edition of the paper, had enough members of the mechanical craft employees of Globe-Democrat been willing to do the mechanical work under such circumstances. Globe-Democrat would have published such a newspaper during the strike if it had been reasonably possible to do so. Efforts were made by the business manager of the newspaper to persuade certain of the unions to return their members to work during this period and as late as May, 1959, but since none of the employees would return to work, no concerted effort was made to rent such equipment, and none was rented.

At a hearing before the Unemployment Compensation Commission on May 18, 1959 the business manager of Globe-Democrat testified that the employer-employee relationship of the Mailers' Union members and Globe-Democrat in effect before February 21, 1959 had continued, without change, and that none of the employees had been suspended, laid off, or terminated since that date; that their job status and work rights had not been prejudiced; that there had been no violence or unlawful conduct, or any other basis for discharge; that none of them or their union representatives had notified Globe-Democrat that they had taken any steps to terminate the employer-employee relationship that existed prior to February 21, 1959.

On June 25, 1959 (following a hiatus of fourteen days caused by a strike of members of the Stereotypers' Union against Post-Dispatch) most of the plaintiffs became 'situation holders' at Post-Dispatch under the same contract under which they had previously worked for Globe-Democrat. Those who did not obtain such positions could have done so if they had so wished.

At various dates between May 29 and August 29, 1959 Globe-Democrat received letters from counsel for each of plaintiffs making demand for payment of wages as provided by Sec. 290.110, and letter of...