The Cincinnati Newspaper Guild, Local 9, the Newspaper Guild v. The Cincinnati Enquirer, Inc.

863 F.2d 439, 130 L.R.R.M. (BNA) 2077, 1989 U.S. App. LEXIS 2770, 1988 WL 131492
CourtCourt of Appeals for the Sixth Circuit
DecidedJanuary 11, 1989
Docket86-4092
StatusPublished
Cited by13 cases

This text of 863 F.2d 439 (The Cincinnati Newspaper Guild, Local 9, the Newspaper Guild v. The Cincinnati Enquirer, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
The Cincinnati Newspaper Guild, Local 9, the Newspaper Guild v. The Cincinnati Enquirer, Inc., 863 F.2d 439, 130 L.R.R.M. (BNA) 2077, 1989 U.S. App. LEXIS 2770, 1988 WL 131492 (6th Cir. 1989).

Opinions

[440]*440DAVID A. NELSON, Circuit Judge.

The Cincinnati Newspaper Guild brought an action under § 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a), to require The Cincinnati Enquirer to arbitrate a grievance under a collective bargaining agreement. The agreement in question had been entered into by the Enquirer and a labor organization (The Enquirer Editorial Employees Professional Association, or “EEEPA”) to which the Guild claimed to be the successor.

The district court, in a decision reported at 650 F.Supp. 26 (S.D.Ohio 1986), entered summary judgment for the Enquirer and denied a motion filed by the Guild to compel arbitration. In its decision, which is now before us on appeal, the district court found (1) that the collective bargaining agreement had expired before the Guild achieved recognition as the representative of the employees originally represented by EEEPA, and (2) that the Guild was not EEEPA’s successor as a contracting party.

Both findings, we believe, are incorrect as a matter of law. As shown by the express language of the collective bargaining agreement and by the practical construction the parties placed on it, the provisions of the agreement remained in effect at all times pertinent to this litigation. The Guild stepped into EEEPA’s shoes as a party to the agreement, in our view, and thereby acquired standing to enforce the contractual provisions relating to resolution of disputes. We shall therefore reverse the judgment of the district court and direct that an order be entered compelling arbitration in accordance with the terms of the agreement.

I

On June 2,1981, EEEPA and the Enquirer entered into an agreement covering the wages, hours, and other conditions of employment of all of the Enquirer’s Editorial Division employees for whom EEEPA was the recognized bargaining agent. The opening paragraph recited that the agreement was to become effective “commencing the first day of March of 1981 and continuing as hereinafter provided....”

What was “hereinafter provided” with respect to continuation of the agreement was this:

“This Contract shall be in effect through February 29, 1984, and shall renew itself automatically each year thereafter; provided, however, that at least ninety (90) days and not more than one hundred twenty (120) days prior to expiration or time of renewal, either party may give written notice of desire to change the terms of this Contract. In such event negotiations shall be entered into and shall proceed with all due diligence. Status quo conditions shall be maintained during the period of negotiations and until a new Contract shall have been executed.” Contract Article XXI.

No notice of desire to change the contract terms is contained in the record of this case, but there is indirect evidence that such a notice was given by EEEPA on November 11, 1983, a date that was between 90 days and 120 days prior to expiration/renewal. Pursuant to the notice of desire, contract negotiations between EEE-PA and the Enquirer were held on December 15 and December 16, 1983.

On December 21, 1983, the president of the Cincinnati Newspaper Guild sent the president of the Enquirer a letter reading as follows:

“At a meeting of the members of the Enquirer Editorial Employees Professional Association held Saturday, December 17, 1983, upon due notice and in accordance with the constitution and bylaws of the Enquirer Editorial Employees Professional Association, the membership voted 56 to 3 by secret ballot to affiliate and become a unit of the Cincinnati Newspaper Guild, a local of The Newspaper Guild, AFI^CIO, CLC. A copy of the resolution is attached.
By virtue of this action, the Cincinnati Newspaper Guild has become the successor to the Enquirer Editorial Employees Professional Association, both as exclusive bargaining representative of the employees in the applicable bargaining unit [441]*441and as party to the current collective bargaining agreement.
Attached is the notice sent to you under the date of November 11, 1983, concerning the opening of negotiations. This same notice is to be deemed our notice as of the date of the resolution referred to above.
Kindly acknowledge by return letter immediately your agreement to recognize the Cincinnati Newspaper Guild as the successor party.”

On December 23, 1983, the Enquirer’s president responded thus:

“In reply to your letter of December 21, I do not believe that the Guild represents a majority of our editorial employees. Therefore, we do not recognize the Guild as the bargaining representative or as a ‘successor party.’ Among the many reasons for my position is the fact that 56 is, obviously, not a majority of our editorial department.”

The Guild promptly filed a representation petition with the National Labor Relations Board.

A representation election held at the end of 1984 resulted in certification of the Guild as the collective bargaining representative of the Editorial Division employees formerly represented by EEEPA. The Guild and the Enquirer thereafter made periodic efforts to negotiate a new contract, but those efforts had not been crowned with success by the time this lawsuit was submitted to the district court for decision.

During the course of its negotiations with the Guild over a new contract, the Enquirer repeatedly manifested an understanding that the obligations imposed by the old contract remained in effect. Thus, in July of 1985, the editor of the Enquirer wrote a letter to the Guild acknowledging that “[o]n the matter of posting positions, it is our contractual obligation to post all positions covered by the Guild.” (Emphasis supplied.) In October of 1985, the man in charge of the Enquirer’s copy clerks sent them a memorandum complaining about their making their own hours. “For some reason,” the memorandum stated with evident disapproval, “my copyclerks don’t think they are covered by the contract.” The memorandum then presented a detailed analysis of §§ 4.02, 4.03 and 5.04 in Articles IV and V of the contract, and concluded with the following observations:

“I have tried to be fair and understanding of everyone’s needs, but if you are abusing the rules and not being fair with me, then I will have to demand strict compliance with the contract.
As of now, we will all adhere to the contract language.”

In January of 1986 another management official issued a memorandum stating, among other things, “I am bound by the contract to grant employees preference according to seniority....”

The record contains no indication that the Guild ever demurred to any of these statements by management about the binding effect of the contract. On the contrary, an affidavit executed in May of 1986 by the president of the Guild’s Enquirer unit says that while the parties continued their negotiations over a new contract, “the Guild and the Enquirer have continued operating under the old contract.” The affidavit goes on to say that “[w]e handle grievances under the procedures specified in that contract, and both parties acknowledge the contract language as controlling on the merits.”

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863 F.2d 439, 130 L.R.R.M. (BNA) 2077, 1989 U.S. App. LEXIS 2770, 1988 WL 131492, Counsel Stack Legal Research, https://law.counselstack.com/opinion/the-cincinnati-newspaper-guild-local-9-the-newspaper-guild-v-the-ca6-1989.