The opinion of the court was delivered by: LEVET
This suit grows out of the present dispute in the New York City newspaper industry as a result of which certain newspapers have not been published since December 8, 1962. Plaintiffs sue under Sections 1, 15 and 26 of the Sherman Act (15 U.S.C. § 1 et seq.) for injunctive relief and treble damages allegedly resulting from the making and execution by defendant publishers of an agreement to cease publication while any of their number is prevented by a strike from publishing its own newspaper. The plaintiffs, newspaper employees, seek a preliminary injunction against the continued execution of that agreement by defendants.
I find that following facts for the present purposes:
1. Plaintiffs are all printing pressmen who were within the employ of certain of the defendant newspaper publishers prior to December 8, 1962.
2. Plaintiffs purport to bring this action on behalf of themselves and of all others similarly situated as printing pressmen, as a class action within the meaning of Rule 23(a)(2) and (3) of the Federal Rules of Civil Procedure.
3. The defendant corporations are publishers of daily newspapers in the City of New York engaged in interstate commerce. These corporations and the newspapers published by each are as follows:
News Syndicate Co. Inc. -- Daily News The New York Times Company -- The New York Times New York Herald Tribune, Inc. -- New York Herald Tribune Hearst Corp. -- New York Mirror Hearst Consolidated Publications, Inc. -- New York Journal American Newspaper Enterprises, Inc. -- Long Island Star Journal. New York World Telegram Corporation -- New York World Telegram & Sun Long Island Daily Press Publishing Company, Incorporated (sued as Long Island Daily Press) -- Long Island Daily Press New York Post Corporation -- New York Post.
4. The defendant Publishers' Association of New York City (Publishers' Association) is an unincorporated membership association whose membership includes the defendant newspaper publishing corporations.
5. Although not so specified in the complaint, plaintiff Clune is President and plaintiff McFadden, Secretary-Treasurer of New York Newspaper Printing Pressmen's Union Number Two. Certain other plaintiffs are said to be 'chapel chairmen' or 'shop stewards' at various newspaper plants of defendants.
6. In the New York City newspaper industry, there are nine craft unions which represent employees in the production and delivery departments of the newspapers and which enter into industry-wide contracts with defendant Publishers' Association. These crafts are the printers or typographers (who are now on strike), the pressmen (of whom the present plaintiffs are members), the deliverers, the stereotypers, the photoengravers, the paper handlers, the mailers, the electricians and the machinists.
7. It has been the practice for many years for the Publishers' Association to act as agent for its newspaper members in the negotiation and administration of collective bargaining agreements with these nine craft unions. Each agreement covers an industry-wide bargaining unit. Similar agreements in other industries are common. See, e.g., N.L.R.B. v. Truck Drivers Local Union 449, 353 U.S. 87, 94-95, 77 S. Ct. 643, 1 L. Ed. 2d 676 (1957). The plaintiffs as members of the Pressmen's Union work under a collective bargaining agreement entered into by the Publishers' Association and the defendant newspaper publishers and the Pressmen's Union.
8. The contracts between the nine craft unions and the Publishers' Association, as agent of the defendant newspaper publishers, had a uniform expiration date of midnight, December 7, 1962. For some time prior to that date, Bertram A. Powers, President of the Typographical Union, had announced to his membership and to the public that there was a distinct possibility of a long strike by his union against the newspapers. He stated that his union was unwilling to accept the $ 8.50 weekly settlement reached by the publishers with the Newspaper Guild. The Typographical Union called a strike to commence at 2:00 A.M. on December 8, 1962. Fifteen minutes before this deadline the union committee submitted to the publishers new contract demands, which were unacceptable to the newspaper defendants.
9. On December 8, 1962, after negotiations failed to produce a settlement, Local 6 of the International Typographical Union announced it would strike the News, the Times, the Journal American and the World Telegram. It did not strike the Herald Tribune, the Mirror, the Post or either of the Long Island newspapers, the Star Journal or the Daily Press. No peculiar facts concerning the Typographical Union's relations with any single employer appear. The only reason for the strike against the News, the Times, the Journal American and the World Telegram was the failure of the publishers to meet the Union's demands.
10. Within fifteen minutes after the Typographical Union announced its decision to strike certain papers, a representative of each newspaper that had not been struck, speaking separately and for only that paper, but in the presence of all the others, announced that it would and did in fact suspend publication at once.
11. The decision to suspend publication was pursuant to an agreement among the publishers entered into on or about May 1, 1962. The substance of this agreement was that if any of the defendants were struck by any of the craft unions having a collective bargaining agreement with any of the defendants, each of the other defendants would cease publication.
12. On December 8, 1962, when the strike of the New York Typographical Union Number Six began, the pressmen refused to go to work at the struck newspapers. They were, however, willing to work at the non-struck papers.
13. The reasons ascribed by defendants for the union's separate treatment of the newspapers and the publishers' reasons for their own reaction were set forth by Walter Thayer of the Herald Tribune before the 'Board of Accountability' on January 9, 1963, as follows:
'As we see it, there were three reasons the printers followed this pattern. First, a strike against four papers only would prevent a newspaper blackout, if the non-struck papers continued to publish.
'On the surface the selection looked like a fair choice. Two morning papers, one tabloid and one standard size, would publish; one afternoon paper would be in business. This seems rather commendable.
'Under the same heading, however, I would suspect that the printers concluded that as they intended this to be a long strike -- they had said so -- there would be less public demand and therefore less public pressure for a settlement if three papers were serving the newspaper requirements of New York rather than none.
'For example, perhaps the Mayor, the Governor, the Secretary of Labor would not have become so interested if three papers were publishing, and perhaps even this Board might not have come into existence.
'The second reason, as we see it, is that the pressure to yield to unreasonable or onerous demands are geometrically increased if a union is in a position to negotiate with four papers which are closed while three of their competitors are publishing and reaping the benefits which accrue under these circumstances.
'The newspaper industry is a peculiar industry. One thing a newspaper or even four strong newspapers together cannot long withstand is to be out of business while their competitors are in business. Readers and advertisers are not fickle, but their demand is a constant one, a daily one and they are susceptible, and to each paper they are precious commodities.
'Therefore, if the Herald Tribune and the Mirror and the Post were to continue to publish while the other four papers were struck, the willingness of those four papers to accede to unreasonable or onerous demands would be very great, and we have no illusion whatsoever that we who published under these circumstances would not be the subject to the same terms after the others had settled or alternatively would be struck while they published.
'As recently as the Guild strike when the Daily News alone was struck, there was a public statement by an official of that union to the effect that when the News had settled, the same settlement and the same terms would be imposed on the other papers and that the order for that purpose had been established -- a rather chilling prospect.
'There's a third reason we ascribe to this strategy by the union. It's not coincidence, I believe, that the non-struck papers, so to speak, the Tribune, the Mirror and the Post, are the papers which are popularly regarded as the ones least likely to survive a strike.'
14. The defendants' activities have an effect on interstate commerce. The daily newspapers published by defendants constituted a substantial portion of the daily newspapers published in the United States; their consumption of newsprint is likewise large; various industries and businesses are affected; wage losses are large and other effects are apparent.
Defense counsel in their brief before this court state:
'For purposes of the present motion, the generalized statement in the complaint of the allegedly illegal agreement among defendants will be accepted as true, although defendants would certainly not admit any agreement or concerted action in the terms there pleaded.' (P. 2)
The court will so consider this in determining this motion for preliminary injunction since it must be kept in mind that the sole issue is the immediate one of the issue or not of such a preliminary injunction.
The plaintiffs' contentions are clear, to wit, that:
1. Defendants 'agreed not to compete and to keep out of commerce and trade millions of newspapers.'
2. This is a per se violation of Section 1 of the Sherman Act.
3. The alleged violation of the antitrust laws is not excused by the claim of the existence of a 'labor dispute.'
4. The plaintiffs have a proper standing to sue.
5. Injunctive relief is appropriate because irreparable injury will ...