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NEW YORK NEWS, INC. v. NEW YORK TYPOGRAPHICAL UNIO

April 1, 1974

NEW YORK NEWS, INC., Plaintiff,
v.
NEW YORK TYPOGRAPHICAL UNION NO. 6, affiliated with International Typographical Union, AFL-CIO, et al., Defendants


Gurfein, District Judge.


The opinion of the court was delivered by: GURFEIN

GURFEIN, District Judge:

This is a motion for a preliminary injunction by the New York News, Inc. ("The News"), publisher of the New York Daily News and the Sunday News against New York Typographical Union No. 6 ("Local 6") affiliated with International Typographical Union, AFL-CIO ("I.T.U."), Bertram A. Powers, its President, David W. Crockett, its Vice-President, and Thomas W. Kopeck, its Secretary-Treasurer. The News seeks to restrain the defendants from any strike, work stoppage or other interference with normal employment or production at The News and to require the defendants to arbitrate.

 Local 6 represents certain News employees known as typographers who work in the plaintiff's composing room and perform a number of tasks relating to the setting of type for the printing of the newspaper.

 The News and Local 6 are parties to a labor contract, entered into on June 12, 1970, covering the composing room operations of The News for the stated period from March 31, 1970 through March 30, 1973. Section 87 of the contract provides:

 
"If an agreement has not been reached by the date upon which the Contract expires, conditions prevailing prior to the expiration of this contract shall be maintained until an agreement is reached or other action is authorized by the I.T.U. [International Typographical Union] or by the Publisher signatory hereto or its agent."

 No new agreement has been reached up to now, although negotiations have been going on since the summer of 1972 between Local 6, on the one hand, and representatives of the News, the New York Times and the New York Post. Each of the latter has a contract with Local 6, jointly negotiated and containing the same terms word for word.

 The present action arises out of three separate unauthorized chapel meetings (union meetings) called by the defendants Powers and Crockett at The News' Manhattan plant on March 11, 1974 during business hours and without permission, although this was required by Section 49 of the contract. *fn1"

 The News responded promptly by seeking and obtaining a temporary restraining order in the State Supreme Court from Justice Margaret Mary J. Mangan on March 11, 1974. At the same time, The News filed a grievance under Section 85 of the contract on the ground that the chapel meeting was unauthorized and a violation of the contract Sections 2, 4, 5, 49 and 87. *fn2" Local 6 refused to meet and on March 16, 1974, The News filed a demand for arbitration with the American Arbitration Association. Justice Mangan's order not only enjoined work stoppages and the like, but also ordered the defendants to proceed to arbitration. Instead, the Union removed the proceeding to this Court on the ground that the action "is one arising under Section 301 of the Labor Management Relations Act, 1947, as amended." The removal was proper, Avco Corp. v. Aero Lodge 735, 390 U.S. 557, 88 S. Ct. 1235, 20 L. Ed. 2d 126 (1968), and the state court temporary restraining order was automatically extended by virtue of 28 U.S.C. § 1450. To give counsel a chance to brief the matter, the order was continued here to March 25, 1974 at 5 P.M., without opposition.

 An evidentiary hearing was held on March 25. Final briefs were submitted on March 27. To put the matter in perspective for an assessment of the legal issues posed, it is necessary to recite some earlier events as they appear in the record.

 As indicated, although their contracts are individual contracts and are so labelled, the contracts of the Times and the Post are the same, and the three newspapers bargain collectively with Local 6. The Times was the first to be subjected to unauthorized chapel meetings during business hours. Local 6 called a chapel meeting in the Times plant as early as Labor Day, 1973. The Times responded by seeking an injunction in the state court. It obtained a final injunction from Justice Massi of the New York Supreme Court, after trial, on September 21, 1973. Local 6 appealed and the Appellate Division reversed (3 to 2). New York Times Co. v. New York Typographical Union No. 6, 43 A.D. 2d 231, 350 N.Y.S. 2d 676 (1 Dept. 1974). The Times appealed to the Court of Appeals which unanimously reversed the Appellate Division on February 22, 1974 and reinstated Justice Massi's permanent injunction order on the basis of his opinion below. The issue, in Justice Massi's opinion, was "whether there is an existing contract between the parties so as to require arbitration of a dispute in accordance with its arbitration provisions." He held that there was an existing contract and that the parties should proceed to arbitration. No specific finding was made, however, of what the issue was to be arbitrated, the reference being merely to "a dispute."

 After Justice Massi's decision and before argument on the appeal in the Appellate Division, another event occurred. The parties, the three publishers and Local 6, procured the mediation services of Theodore W. Kheel, Esq. They entered into an "interim agreement . . . to promote collective bargaining" dated October 30, 1973 which provided in part that "[the] status quo shall be maintained for the duration of this agreement. This means that there shall be no action by either side that will interfere with production." The "interim agreement" provided that "the negotiations with mediation shall continue until December 31, 1973, and thereafter by mutual agreement of the parties unless cancelled by written notice of either side on seven days notice at any time on or after December 24, 1973." It further provided that any disagreement regarding the terms of the "interim agreement" shall be submitted to and decided by Mr. Kheel and shall be final and binding on the parties.

 Although the issue before the Appellate Division was whether the contract was still in force, neither the Times nor the Union tendered the "interim agreement" as bearing on the issue.

 The News now contends that the affirmance by the Court of Appeals collaterally estops Local 6, which was the defendant in that action on the identical contract, from contending here that the contract with the News is not in existence. The union counters inter alia by asserting that the "interim agreement" was a superseding agreement which expired when the union gave notice on March 3, 1974 cancelling it, and that there is now no existing contract in spite of the Court of Appeals decision. It points to Article 87 of the original contract which provides that "conditions prevailing prior to the expiration of this contract shall be maintained until an agreement is reached or other action is authorized by the I.T.U. or by the Publisher signatory hereto or its agent." (Emphasis supplied). It contends that by signing the "interim agreement" the publisher took "other action", and terminated the extension of the contract provided in Article 87. It is conceded that I.T.U. has not authorized "other action" by Local 6.

 The issues presented are: (1) Is there a collateral estoppel against Local 6, and if so what is its extent? (2) If there is an existing contract and the collateral estoppel is not coextensive with the remedy sought, is the injunctive remedy available to the employer in spite of the Norris-LaGuardia Act, 29 U.S.C. §§ 101, 104, 107, because of the doctrine of Boys ...


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