Harry IRWIN et al., Respondents, v. GLOBE-DEMOCRAT PUBLISHING COMPANY, a corporation, Appellant.
No. 49026.
Supreme Court of Missouri, Division No. 2.
April 8, 1963.
Motion for Rehearing or to Transfer to Court En Banc Denied June 4, 1963.
368 S.W.2d 452
STOCKARD, Commissioner.
William A. Geary, Jr., St. Louis, for respondents.
STOCKARD, Commissioner.
This is an appeal from a judgment wherein seventeen plaintiffs were awarded “dismissal pay” in various amounts totaling $20,260.90 alleged to be due pursuant to the terms of a collective bargaining agreement between the St. Louis Paper Handlers, Sheet Straighteners and Stock Room Employees’ Union No. 16 (hereafter referred to as “Local No. 16“), affiliated with the International Printing Pressmen and Assistants’ Union of North America AFL-CIO, and the St. Louis Newspaper Publishers’ Association, of which the Globe-Democrat Publishing Company (hereafter referred to as the “Globe-Democrat“) was a member.
On February 21, 1959, certain employees of the Globe-Democrat who were mem-
On February 27, 1959, the Globe-Democrat sold to the St. Louis Post-Dispatch all of its physical property for the printing of its newspaper and entered into a contract with the Post-Dispatch whereby it would print the Globe-Democrat newspaper when the Guild strike ended. A notice of this sale was furnished to the president of Local No. 16 and to each plaintiff. Prior
By this suit plaintiffs as third party beneficiaries, Baron v. Kurn, 349 Mo. 1202, 164 S.W.2d 310, 142 A.L.R. 787, seek to recover “dismissal pay” pursuant to a collective bargaining agreement between Local No. 16 and the St. Louis Newspaper Publishers’ Association, the relevant provisions of which are as follows:
“Article XII. Dismissal Pay. Sec. 1. In the event of merger, consolidation or permanent suspension of publication by any newspaper covered by the Agreement all employes who lose employment thereby shall receive dismissal pay as follows:
“(a) Employes who have held regular situations for more than six (6) months but less than one (1) year shall be paid six (6) weeks’ dismissal pay.
“(b) Employes who have held regular situations for more than one (1) year shall be paid twelve (12) weeks’ dismissal pay.
“Sec. 2. Any employe who has held a regular situation for one (1) year or more who is laid off to reduce the force shall receive dismissal pay on the basis of one (1) week‘s pay for each year of continuous priority.
“Sec. 3. Dismissal pay shall be at the employe‘s regular straight time rate of pay as of the time of dismissal.
“Sec. 4. When an employe is laid off due to a reduction in force he shall hold re-employment rights in the chapel from which he was laid off for a period of one (1) year. Refusal of an employe to take a job in chapel, when called back to work, shall waive his re-employment rights.”
Plaintiffs alleged in their petition that they “were laid off to reduce the force of defendant, thereby entitling them to receive dismissal pay under Sections 2 and 3 of Article XII of said Collective Bargaining Agreement.” They further alleged the circumstances of the sale by the Globe-Democrat of its printing facilities, and that upon termination of the Guild strike on May 27, 1959, they presented themselves at the defendant‘s place of business “ready, willing and able to continue their employment, but plaintiffs were then notified of their lay-off by defendant.” Prior to the trial each plaintiff made answers to interrogatories under oath and stated therein that the “last date he was employed by defendant” was May 27, 1959, and that “he was laid off by defendant at that time.” Notwithstanding the allegations in their petition and the above answers to the interrogatories, which were not amended, plaintiffs submitted their case to the jury, and now contend on this appeal, that they were “‘laid off to reduce the force’ on February 27, 1959,” because on that day the Globe-Democrat “contracted away the printing of its newspaper,” sold the tools “necessary to fulfill those operations,” and notified plaintiffs of the sale. “Taken together,” plaintiffs contend, “the circumstances operate to entitle respondents to dismissal pay under Article XII, Section 2 of their contract.” This change in position apparently was believed necessary because the collective bargaining agreement upon which this suit is based, by its express terms, expired on December 31, 1958. It was then extended by oral agreement to March 2, 1959, but was not further extended insofar as the Globe-Democrat was concerned, and a new agreement was nego-
On this appeal the Globe-Democrat contends that plaintiffs are bound by their pleadings and the answers to their interrogatories and as a result they did not establish the occurrence of a layoff to reduce the force while a contract was in existence. It also contends that if the pleadings and answers to interrogatories be ignored and it be considered that plaintiffs’ employment was terminated on February 27, for the reasons and under the circumstances contended by plaintiffs, the termination did not amount to a layoff to reduce the force. In view of our ruling on the second contention we need not rule the first.
The collective bargaining agreement does not provide for “dismissal pay” in all situations where the employment status is terminated, other than those specifically excepted, as do some and probably most labor agreements. See Globe-Democrat Publishing Company v. Industrial Commission, Mo.App., 301 S.W.2d 846; Talberth v. Guy Gannett Publishing Company, 149 Me. 286, 100 A.2d 726, 40 A.L.R.2d 1036; Matthews v. Minnesota Tribune Co., 215 Minn. 369, 10 N.W.2d 230, 147 A.L.R. 147; 40 A.L.R.2d 1044. On the contrary, it provides for “dismissal pay” in only certain specifically defined situations, and in doing so it relieves the employer of any liability for “dismissal pay” in all other situations. In determining whether the termination of employment at the time and for the reasons asserted by plaintiffs constituted one of the specific situations in which dismissal pay is required to be paid, the collective bargaining agreement is subject to the same rules of interpretation as other contracts and should be realistically construed to accomplish its evident aims. 56 C.J.S. Master and Servant § 28 (41)a.
Plaintiffs make no contention that they are entitled to “dismissal pay” pursuant to Section 1 of Article XII of the agreement. Their claim is based solely on the theory that their employment status was terminated on February 27, 1959, and that that termination constituted a layoff to reduce the force. “The term ‘layoff‘, in the field of employment, has a well-defined meaning. * * * It does not mean termination of employment, but rather does it mean: ‘The act of laying off, esp. work or workmen; a period of being off or laid off work; a shutdown; a respite.‘” ACF Industries, Inc. v. Industrial Commission, Mo., 320 S.W.2d 484, 491. As stated in 56 C.J.S. Master and Servant, § 29, “‘Labor separations’ are classified as ‘quits,’ * * *, ‘discharges’ * * *, and ‘layoffs,’ which have been defined as terminations of employment at the will of the employer, without prejudice to the worker, and may be due to lack of orders, technical changes, or the failure of flow of parts or materials to the job, as needed.” A “layoff,” as distinguished from a discharge, contemplates a period during which a working man is temporarily dismissed, Fishgold v. Sullivan Drydock & Repair Corp., 2 Cir., 154 F.2d 785, 788, and it also refers to that suspension of work or employment during a part or season of the year when business activity is partly or completely suspended. Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 66 S.Ct. 1105, 1112, 90 L.Ed. 1230, 167 A.L.R. 110. See also Lord Mfg. Co. v. Nemenz, D.C., 65 F.Supp. 711; International Ass‘n of Machinists v. State ex rel. Watson, 153 Fla. 672, 15 So. 2d 485; Anderson v. Twin City Rapid Transit Co., 250 Minn. 167, 84 N.W.2d 593; State ex rel. Ausburn v. City of Seattle, 190 Wash. 222, 67 P.2d 913, 111 A.L.R. 418. An employee “laid off” does not have his employment status completely and finally terminated. He ordinarily is entitled to re-employment when the temporary situation calling for the layoff has been corrected or eliminated. The precise term used in this case was “laid off to reduce
On February 27, 1959, each plaintiff was not working because he was voluntarily refraining from reporting for work. He was not “laid off to reduce the force” because the termination of employment, even under plaintiffs’ theory, was not intended to be temporary with re-employment rights. The termination of plaintiffs’ employment was permanent and therefore they were “discharged.” The collective bargaining agreement does not provide for “dismissal pay” to a “discharged” employee except as set forth in Section 1 of Article XII, and plaintiffs expressly disaffirm any claim pursuant to that provision. This construction of the agreement is consistent with its evident aims. A “discharged” employee is entitled to “dismissal pay” in the amount provided (which is greater than when laid off to reduce the force) when the discharge results from the specifically stated situations and he loses employment thereby. An employee is entitled to “dismissal pay” in a lesser amount when he is “laid off to reduce the force,” that is, not for disciplinary reasons, with re-employment rights for one year. In this case neither factual situation came into existence.
The authorities cited and relied upon by plaintiffs are readily distinguishable. In Matthews v. Minnesota Tribune Co., 215 Minn. 369, 10 N.W.2d 230, 147 A.L.R. 147, the collective bargaining agreement provided for severance pay “upon dismissal, except for drunkenness, proven dishonesty or gross neglect of duty.” The newspaper employer sold all of its business to another newspaper. The court held that when an employer disposes of all of his business it operates as a discharge or dismissal of his employees. The right to severance pay accrued in the event of a dismissal except in three specifically defined situations. Here the right to dismissal pay accrued, as far as plaintiffs are concerned, only in the event they were “laid off to reduce the force” and when they retained employment rights for one year. In re Public Ledger, 3 Cir., 161 F.2d 762, pertained to a bankruptcy proceeding. It was held that suspension of the business in bankruptcy amounted to a discharge of the bankrupt‘s employees, and that because of the use of the terms “layoff” and “discharge” in the collective bargaining agreement, “the ‘layoff’ provisions of the contract are in fact provisions covering discharge as well as temporary layoffs.” While the language of that agreement may have justified the conclusion there reached, we find no reason to say in this case that both of the parties to the agreement intended to say one thing when they in fact said another. Plaintiffs also rely on the reported decisions in two arbitration cases. Regardless of the credence these two reports are entitled to receive, they do not support plaintiffs. In the Standard Oil of California case, 31 Labor Arbitration Reports, 472, the union there contended contrary to the position of plaintiffs in this case that the term “layoff” “refers to a tem-
The agreement in this case was negotiated by Fred A. Atkins on behalf of Local No. 16 who at time of trial had been a member of the union for fifteen years. He had been an officer of the union for ten years including seven years as president, and he had also served as business agent. The agreement was signed by Mr. Atkins and by Tom LaRocca, who participated in the negotiations and was “standing committee member on the Executive Board” of Local No. 16. The negotiators for the St. Louis Newspaper Publishers’ Association were Richard G. Baumhoff and Munro Roberts from the Post-Dispatch and G. D. Bauman from the Globe-Democrat. It is not unreasonable to assume that all of these persons were familiar with the newspaper business and that they held themselves out, at least to some extent, as experts in the field of labor negotiations. The process of collective bargaining over the terms of a labor contract, at least in theory, results in demands, counter demands and concessions until an agreement is reached. It is not the situation where one party presents a written proposed agreement subject only to acceptance as presented or rejection. The process of collective bargaining necessarily implies that the terms of an approved agreement were thoughtfully prepared by persons seeking to express the precise agreement between the parties. In the absence of some reason to require a different rule, and we find none here, “The test of the meaning, of words commonly used, should be their ordinary and popular meaning; and they should not be construed in the broadest sense possible to include meanings to which they would not be applied by most people.” Cleaver v. Central States Life Ins. Co., 346 Mo. 548, 142 S.W.2d 474, 129 A.L.R. 1094. We have no right, in interpreting a collective bargaining agreement, to say that by the use of words and phrases which have well-defined and commonly understood meanings in the field of labor relations the parties did not mean what they said. We cannot interpret such an agreement as we may think it should have been written. Neither can we interpolate words into an agreement which are not there and thereby rewrite the agreement to what third party beneficiaries of that agreement now argue the parties surely must have meant because otherwise the agreement does not favorably cover, as to them, a situation which subsequently arose. For all we know, the language used in the agreement was intentionally used as the result of a compromise between demands by the union for dismissal pay in the event of termination of employment for any reason and a demand by the employer representatives that there be no provision whatever for dismissal pay.
Plaintiffs were not “laid off to reduce the force” but were discharged, or at least their employment with the Globe-Democrat was permanently terminated. The terms of the collective bargaining agreement upon which plaintiffs rely do not impose an obligation on the Globe-Democrat to pay to plaintiffs “dismissal pay” under those circumstances, and no obligation for such payment exists in the absence of an agreement.
The judgment is reversed.
BOHLING and BARRETT, CC., concur.
The foregoing opinion by STOCKARD, C., is adopted as the opinion of the Court.
All of the Judges concur.
On Motion for Rehearing or to Transfer to Court En Banc.
PER CURIAM.
Plaintiffs contend in their motion for rehearing that we did not “take into account section 301(a) of the Labor Management Relations Act of 1947,
We have examined plaintiffs’ brief filed in this court and we fail to find any reference to the above contentions. Only one federal case was cited in their brief, In re Public Ledger, Inc., 3 Cir., 161 F.2d 762. Plaintiffs placed their complete reliance upon that case and upon cases from this and other states, and upon the report in two arbitration decisions, all of which we expressly considered in the opinion. It has long been the rule that new propositions and complaints not submitted in the original brief, Ford v. Wabash Ry. Co., 318 Mo. 723, 300 S.W. 769, 778, and raised for the first time after the opinion is handed down, Phippin v. Missouri Pacific R. Co., 196 Mo. 321, 93 S.W. 410, 418, or which are clearly afterthoughts, State ex rel. Cole v. Matthews, Mo., 274 S.W.2d 286, 292, will not be considered on motion for rehearing. We do not propose now to change or relax that rule. However, if in a suit in a state court on a collective bargaining agreement by an employee we are required to apply “federal substantive law,” and we did not do so and the result reached is contrary to such law, then plain error would have resulted. In our discretion, we may consider plain error affecting substantial rights,
Section 301(a) of the Labor Management Relations Act of 1947,
Plaintiffs assert that because “federal law” is to be applied to this case the “opinion should be reviewed to determine if it is harmonious with the body of substantive law in the field of labor relations as promulgated by the federal courts,” and that if it is not this court should modify its opinion to so conform. The “body of substantive law” relied upon by respondents in their motion for rehearing, and in the
In the preparation of the principal opinion we ruled the issues by giving the language of the contract its normal meaning in accordance with its accepted usage. In determining this meaning we looked not only to the one federal case and the numerous state cases cited by respondents, but we also looked to and relied on other cases found by us in the course of our research including two cases in the lower federal courts and one opinion of the Supreme Court of the United States. No federal case was then found, none has been found upon re-examination, and respondents certainly have cited no federal case which, in the words of Mr. Justice White, formulates and applies federal law which would require or justify a result different from that we reached in the principal opinion. Assuming, therefore, that in this suit we were required to apply federal substantive law, it is our conclusion that we did so and that we did so correctly. There is absolutely nothing in Smith v. Evening Press Association, or the other federal cases cited by plaintiffs in the motion for rehearing, which directly or inferentially holds that the result we reached is contrary to federal substantive law, and plaintiffs certainly have not demonstrated that on the merits we reached an incorrect result.
We do not agree, assuming we are required to apply federal substantive law, that in doing so this court “was sitting as a court of the United States” any more than it is sitting as a court of a sister state when it applies the law of that state. Therefore, there is no merit to the contention that the Seventh Amendment to the Federal Constitution has any application to this case.
All other matters in the motion for rehearing have been carefully considered and are found to be without merit, and the motion for rehearing is overruled.
Respondents also assert that because of the issues presented for the first time in their motion for rehearing “there is now involved in this cause a federal question,” and they are entitled to have this case transferred to the court en banc.