St. Louis Typographical Union No. 8 v. Herald Company

Decision Date13 October 1967
Docket NumberNo. 64 C 89(3).,64 C 89(3).
Citation277 F. Supp. 276
PartiesST. LOUIS TYPOGRAPHICAL UNION NO. 8, AFL-CIO, an unincorporated association, Plaintiff, v. The HERALD COMPANY, d/b/a Globe-Democrat Publishing Company, a corporation, Defendant.
CourtU.S. District Court — Eastern District of Missouri

Bartley, Siegel & Bartley, Clayton, Mo., for plaintiff.

Lon Hocker, of Hocker, Goodwin & MacGreevy, St. Louis, Mo., for defendant.

MEMORANDUM OPINION AND ORDER

REGAN, District Judge.

This Section 3011 action, tried to the Court, was brought by St. Louis Typographical Union No. 8, AFL-CIO (Union) to recover on behalf of some 154 members certain benefits (now narrowed to severance pay and pension rights) to which such members were allegedly entitled under the terms of a collective bargaining agreement.

The Union is a labor organization which was the collective bargaining representative of employees engaged in composing room work for two St. Louis newspapers. It entered into collective bargaining agreements with the St. Louis Newspaper Publishers' Association which acted for the Globe-Democrat Publishing Company (Globe-Democrat) and the Pulitzer Publishing Company (Pulitzer) publisher of the St. Louis Post-Dispatch (Post-Dispatch). The agreement immediately involved, effective January 1, 1958 and admittedly binding upon Globe-Democrat, was for a two year period.

One of the Articles of this contract related to severance pay. It set forth that "in the event of merger, consolidation or permanent suspension of publication of any newspaper covered by this contract, all employees who lose employment thereby shall receive severance pay as follows: * * *." The claim to severance pay is based upon plaintiff's interpretation of this Article. Defendant urges that irrespective of plaintiff's theory of recovery plaintiff is precluded, under principles of res judicata, from recovering in any event. Limitations is another affirmative defense.

On February 21, 1959 at 3 a. m., the St. Louis Newspaper Guild, another labor organization (not connected with plaintiff), struck Globe-Democrat and established a picket line which was honored by plaintiff and its members. The contract with plaintiff granted its members the right to refuse to cross the picket line. On February 22nd the Union was notified that any of its employee members who reported for duty during the continuance of the strike would be put to work and paid his regular day's pay. The strike and picketing continued until May 31, 1959, when the Guild settled its dispute with Globe-Democrat. In the interim, the Globe-Democrat's newspaper was not published and the member-employees did not report for duty.

On February 27, 1959, Pulitzer purchased from Globe-Democrat the building which housed its printing plant and general offices, as well as its printing equipment and certain other personal property. As part of the purchase agreement, Pulitzer temporarily leased back to Globe-Democrat certain portions of the building for the period from February 27, 1959 to May 31, 1959. In conjunction with Pulitzer's acquisition of the Globe-Democrat property, the parties entered into a contract under the terms of which Pulitzer agreed to print the Globe-Democrat's newspaper for a period of ten years upon the resumption of publication by the Globe-Democrat following settlement of the existing Guild strike.

The February 27, 1959 agreement provided for the retention by both parties of their separate identities and their separate news, circulation and advertising policies. Pulitzer was to pay all printing expenses from the point where the copy was received by it to the delivery of the printed newspapers at the truck side of the loading dock, and at that point the Globe-Democrat was to accept and be responsible for the delivery of the printed newspapers.

After the date Pulitzer was to begin printing the Globe-Democrat's newspaper it was to be liable only for wages and other employee benefits which were incurred thereafter in the printing of the newspaper, no liability being imposed upon it for obligations to Globe-Democrat employees incurred prior to such date. Pulitzer further agreed to employ from the then present employees of Globe-Democrat, if available, any additional persons as it might need to print Globe-Democrat's newspaper, but without obligation to employ any of such persons whose services were not actually needed.

On the same day the agreement with Pulitzer was entered into, Globe-Democrat notified its employees of the "consolidation of mechanical operations" of the two newspapers, stressing the independence of the two publishers and noting that consolidation of mechanical operations by competing newspapers was a growing trend in the United States. This notice stated that members of the mechanical unions (of which plaintiff was one) would be employed on a priority basis in the consolidated mechanical operations, and if they could not be so employed "the dismissal provisions of the current mechanical contracts would apply."

After the Guild strike was settled, Pulitzer began printing the Globe-Democrat's newspaper and is still doing so. None of the employees for whose benefit this action was brought performed any work for, received any compensation from, or were called back to work after February 27, 1959. However, they did continue to receive Blue Cross and Blue Shield insurance benefits for some time thereafter, at least until June 1, 1959. All of them were on the last priority (or seniority) list of the Globe-Democrat chapel of the Union, which was made up in February, 1959. The priority list shows when each member of the Union became an employee of Globe-Democrat. None of these names appeared on the priority list at the Post-Dispatch chapel as late as May 25, 1959. A Union member employed by the Globe-Democrat could not have priority with more than one newspaper at the same time, and if an employee lost his priority standing at Globe-Democrat and was employed at some other newspaper, his priority would commence as of the date of his employment by the second employer and his priority prior to February 27, 1959 would be lost. The Globe-Democrat employees who were employed at the Post-Dispatch after February 27, 1959 were placed at the bottom of the Post-Dispatch priority list. Subsequently, a new priority list was made up by the Post-Dispatch chapel purporting to show all of the former Globe-Democrat employees who had become employees of the Post-Dispatch with a priority date as of February 27, 1959. Some, but not all, of them had been employed at the Post-Dispatch at irregular intervals on a temporary basis prior to the resumption of the publication of the Globe-Democrat. The Post-Dispatch, however, never acquiesced in this new priority list, and we find that it does not correctly state the facts. Under the great weight of the evidence, the Union members did not cease to be employees of the Globe-Democrat until about June 1, 1959. This finding is consistent with a statement in Plaintiff's Exhibit No. 4 (which was lodged and is now received in evidence), although our finding is made independently of that Exhibit.

We first direct our attention to the defense of statute of limitations. This necessitates a statement of additional facts.

On December 30, 1963, Globe-Democrat was dissolved and pursuant to its liquidation all of its assets and liabilities were assumed by The Herald Company, it sole stockholder. On the same day, The Herald Company registered the name Globe-Democrat Publishing Company as the fictitious name under which it was transacting business. The registered office of defendant was at the same address as the dissolved corporation, Globe-Democrat, at which said dissolved corporation had operated. The Herald Company, operating under said fictitious name in all respects in the same manner as had Globe-Democrat, continued the publication of the same newspaper with no outward change.

The present suit was brought on February 26, 1964, naming as defendant the Globe-Democrat Publishing Company, and service was had on defendant's business manager. Thereafter, on March 5, 1964, an amended complaint was filed in which, with the consent of defendant, The Herald Company was substituted as defendant and the dissolved corporation was dropped as a party.

The defense of limitations is based on the theory that plaintiff's claim accrued on February 27, 1959, and that inasmuch as The Herald Company was not made a party to this action until after five years elapsed, the action is barred by the Missouri 5-year statute of limitations (Section 516.120, R.S.Mo., V.A.M.S.).

It is now settled that the timeliness of a § 301 action "is to be determined, as a matter of federal law, by reference to the appropriate state statute of limitations." International Union, United Automobile, Aerospace & Agricultural Implement Workers of America (UAW), AFL-CIO v. Hoosier Cardinal Corp., 383 U.S. 696, 86 S.Ct. 1107, 16 L.Ed.2d 192. Assuming, as would appear to accord with Hoosier, but without deciding, that the 5-year statute is the governing one, we are nevertheless of the opinion that this action as it relates to the claim for severance pay accrued less than five years before The Herald Company was substituted as the defendant.

It is true that the complaint alleges that from and after February 27, 1959 (the date of the contract with Pulitzer) Globe-Democrat and defendant have not employed any members of the Union to perform composing room work, and that the member-employees "lost their employment with the Globe-Democrat Publishing Company on February 27, 1959, as aforesaid." However, the evidence, most of which came in without objection or was stipulated, is convincing, as we have found, that in truth and in fact the member-employees remained employees of Globe-Democrat until June 1, 1959, so that their right of action for severance pay could not have accrued before then.

Plaintiff has requested leave to amend...

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3 cases
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