Province v. Cleveland Press Pub. Co.

• Decision Date: 20 March 1985
• Docket Number: C84-2145.,Civ. A. No. C83-847
• Citation: 605 F. Supp. 945
• Parties: James R. PROVINCE, et al., Plaintiffs, v. CLEVELAND PRESS PUBLISHING COMPANY, et al., Defendants, v. CLEVELAND TYPOGRAPHICAL UNION NO. 53, et al., Third Party Defendants. Ronald RIDLEY, et al., Plaintiffs, v. PLAIN DEALER PUBLISHING COMPANY, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

605 F. Supp. 945

James R. PROVINCE, et al., Plaintiffs, v. CLEVELAND PRESS PUBLISHING COMPANY, et al., Defendants, v. CLEVELAND TYPOGRAPHICAL UNION NO. 53, et al., Third Party Defendants.

Ronald RIDLEY, et al., Plaintiffs, v. PLAIN DEALER PUBLISHING COMPANY, et al., Defendants.

Civ. A. Nos. C83-847, C84-2145.

United States District Court, N.D. Ohio, E.D.

March 20, 1985.

COPYRIGHT MATERIAL OMITTED

Robert M. Phillips, Stanley B. Weiner, Landskroner & Phillips Co., L.P.A., Cleveland, Ohio, for plaintiffs.

Jon C. Flinker, Craig M. Brown, Duvin, Flinker & Cahn, Cleveland, Ohio, for Cleveland Press Publishing Company (labor law issues).

Robert M. Goodman, Gail Sindell, Barbara Friedman Yaksic, Benesch, Friedlander, Coplan & Aronoff, Cleveland, Ohio, for Cleveland Press Publishing Company and Joseph E. Cole (antitrust issues).

Parker M. Orr, David G. Holcombe, Baker & Hostetler, Cleveland, Ohio, for The E.W. Scripps Company.

James P. Garner, Baker & Hostetler, Cleveland, Ohio, Williams E. Willis, Richard J. Urowsky, Sullivan & Cromwell, New York City, and Tobias J. Bermant, Sabin, Bermant & Blau, New York City, for Plain Dealer Publishing and S.I. Newhouse, Jr.

Lawrence M. Oberdank, Laybourne, Smith, Oberdank, Gore & Shapiro, Cleveland, Ohio, for Cleveland Typographical Union No. 53 and Haven Combs.

MEMORANDUM AND ORDER

ANN ALDRICH, District Judge.

These cases allege that the June 17, 1982 closing of the Cleveland Press daily afternoon newspaper was the product of a conspiracy between the publishers of the Press and The Plain Dealer, Cleveland's sole surviving daily paper. Eighty-nine former Press employees allege that the transactions surrounding the paper's closing violated federal labor and antitrust laws and Ohio common law.

On September 1, 1983, this Court denied various defendants' motions to dismiss or for summary judgment in Province v. Cleveland Press Publishing Co., No. C83-847 (N.D.Ohio filed Feb. 28, 1983). See 571 F.Supp. 855 (N.D.Ohio 1983). The same plaintiffs later commenced Ridley v. Plain Dealer Publishing Co., No. C84-2145 (N.D.Ohio filed July 3, 1984). This Court consolidated the actions pursuant to Fed.R. Civ.P. 42(a) and the parties have completed exhaustive discovery. Now pending are cross-motions for summary judgment filed pursuant to Fed.R.Civ.P. 56. Applying binding appellate precedent to undisputed material facts compels the conclusion that plaintiffs possess no claims which could properly be submitted to a jury. This Court accordingly must grant defendants' motions for summary judgment and dismiss the Province and Ridley complaints.

Subject matter jurisdiction rests on 28 U.S.C. §§ 1331 and 1337, 29 U.S.C. § 185, 15 U.S.C. § 15, and the doctrine of pendent jurisdiction.

I. THE FACTS

A.

In 1972 two daily newspapers served the Greater Cleveland area. E.W. Scripps Co. ("Scripps") owned and operated the Press. Plain Dealer Publishing Company ("Plain Dealer"), then known as Forest City Publishing Company, published The Plain Dealer. Prior to 1972, Scripps and Plain Dealer were separate parties, on a multi-employer basis, to a collective bargaining agreement with the Cleveland Typographical Union, Local No. 53 ("the Union" or "CTU No. 53").

On January 17, 1972, as the agreement covering the period from June 1, 1969 to August 31, 1972 was nearing its end, the two publishers and the Union signed a Job Security Agreement and Memorandum of Clarification ("Job Security Agreement"). Each publisher guaranteed its eligible workers lifetime employment. The pertinent paragraphs provided:

THIS AGREEMENT, entered into this 17th day of January, 1972 by and between The E W Scripps Company, as publisher of The Cleveland Press, and The Forest City Publishing Company, as publisher of The Plain Dealer (hereinafter referred to as "the Publishers") acting through the Cleveland Newspaper Publishers Association as joint Negotiating Agent for the Publishers, and Cleveland Typographical Union No 53, by officers duly authorized to act in its behalf (hereinafter referred to as the "Union"); and is made to resolve certain long-standing controversies and for the good and welfare of all parties. In consideration of the mutual promises and considerations contained herein, the parties hereto agree as follows:

* * * * * *

2. Each eligible employe listed on the Job Security Roster will be entitled to a regular full-time job in the bargaining unit of employes represented by the Union ... for the remainder of his working life until such employe dies, retires, or resigns; provided, however, that in the event the Publishers, or either of them, permanently cease publication that such employment guarantee will thereupon cease, and provided further, that during any period of temporary suspension by the Publishers, or either of them, the job guarantee will be suspended for such period of temporary suspension of publication with respect to the Publisher or Publishers who have ceased or suspended publication ...

3. In the event that either or both Publishers merge with any other publisher or is acquired or consolidates its business in any manner or changes its operation in any manner, such change of circumstance will in no manner abrogate or alter this Agreement and any successor employer, publisher, company, or enterprise will be as fully bound by the terms of this Agreement as if such changed enterprise had been an original party hereto.

Current and former Press and Plain Dealer executives have submitted uncontroverted affidavits stating that the Job Security Agreement was intended to require each publisher to guarantee lifetime employment for its eligible employees.¹ Separate lists of protected employees at the two newspapers were attached to the Job Security Agreement; transfers between the lists were not permitted.

The Job Security Agreement was incorporated by reference into subsequent multi-employer collective bargaining agreements, the last of which become effective on January 1, 1978 and was to expire on December 31, 1983 ("Collective Bargaining Agreement"). On several occasions subsequent to 1972, the Union and the publishers negotiated supplemental agreements providing lucrative incentives to employees who agreed to surrender their lifetime-guaranteed jobs and retire ahead of schedule. As workers accepted these payments, the number of Press and Plain Dealer employees covered by the respective Job Security Agreements shrank.

During the term of the 1978 Collective Bargaining Agreement, Scripps began negotiating to sell the Press to Cleveland Press Publishing Co. ("Press Publishing"). Its president, Joseph Cole, owned a majority of the new entity's stock. In August of 1980, Cole met with Union representatives to discuss the possibility of negotiating new collective bargaining agreements or modifications in the existing agreements, if he purchased the paper. With respect to production personnel, he submitted a proposal to Haven Combs, president of CTU No. 53, which was reviewed by an International Typographical Union ("ITU") representative and approved in writing by ITU. Combs presented the "final agreement" proposal to the Union at a meeting on September 21, 1980. By a vote of ninety to nineteen, the members approved a proposal which included the following language.

1. New three-year collective bargaining contract (pre-ratified) effective January 1, 1981 through December 31, 1983 which will supersede all existing contracts, letters of agreement, etc.

2. The current collective bargaining contract between your Union and The Cleveland Press will be extended and made a part of the new three-year contract referred to in 1 above, except for the following amendments:

A The current job security agreement will remain in full force and effect and the 1980 Termination Incentive Program implemented by The Plain Dealer will also be accepted ...

Combs and Press Publishing thereafter signed letter agreements dated October 15, 1980 and October 29, 1980. The October 15, 1980 letter states in pertinent part:

The Cleveland Press Publishing Company, a corporation organized by Joseph Cole, is in the final stage of acquiring The Cleveland Press from The E.W. Scripps Co., and a condition of the sale is that Purchaser shall present to Seller duly executed agreements with all unions superseding the contracts in effect between the Seller and said Unions. Of course, it is our intention, as soon as time permits, to prepare full collective bargaining contracts and all supplements thereto between The Cleveland Press Publishing Company and all Unions, but this job cannot be completed by closing date.

Therefore, this letter shall constitute a memorandum of agreement between your Union and The Cleveland Press Publishing Company as follows:

1. The Cleveland Press Publishing Company shall assume (on a single employer basis) the current contract and all written supplements thereto between your Union and The Cleveland Press, and the duration of the new contract between your Union and the Cleveland Press Publishing Company shall be from the date of acquisition through December 31, 1983.

The October 29, 1980 document is a release supplanting, superseding, and terminating all relations between Scripps and the Union. It states in part:

It is understood and agreed by the undersigned that on the Closing Date of the sale of The Cleveland Press to The Cleveland Press Publishing Company (a corporation organized by Joseph Cole), the collective bargaining agreement negotiated by The Cleveland Press Publishing Company and Cleveland Typographical Union No. 53 will become effective, will supersede and supplant the collective bargaining agreement between The E.W. Scripps Company and Cleveland Typographical Union No. 53 and that The E.W. Scripps Company from the Closing Date forward shall not be a party to any collective bargaining agreement with the Union.

Combs stated that he executed the letter agreements as authorized by the September 21, 1980 vote...