Newspaper Guild v. Hearst

10-2402-cv
Newspaper Guild v. Hearst
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
_______________
August Term, 2010
(Argued: April 15, 2011 Decided: May 17, 2011)
________________________________________________________
NEWSPAPER GUILD/CWA OF ALBANY, TNG/CWA, AFL-CIO-CLC,
Plaintiff-Appellee,
—v.—
HEARST CORPORATION, DBA CAPITAL NEWSPAPER DIVISION,
Defendant-Appellant.
Docket No. 10-2402-cv
________________________________________________________
Before: SACK, KATZMANN, LOHIER, Circuit Judges.
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Appeal from a judgment of the United States District Court for the Northern District of New York
(Sharpe, J.), granting Plaintiff-Appellee’s motion for summary judgment and denying Defendant-
Appellant’s cross-motion for summary judgment. This appeal calls upon us to decide whether the
district court erred in concluding that the parties’ dispute over “checkoff” of union dues is subject
to arbitration pursuant to their expired collective-bargaining agreement. We hold that Plaintiff-
Appellee’s contractual right to checkoff of union dues survives expiration of the agreement, thus
subjecting the parties’ dispute to arbitration. For the reasons stated herein, the judgment of the
district court is AFFIRMED.
_______________
BARBARA L. CAMENS, Barr & Camens, Washington, D.C., for Plaintiff-
Appellee.
MARK W. BATTEN, Proskauer Rose LLP, Boston, Mass., for Defendant-
Appellant.
_______________
KATZMANN, Circuit Judge:
Defendant-Appellant Hearst Corporation (“Hearst”) appeals from a judgment of the
United States District Court for the Northern District of New York (Sharpe, J.), entered on June
11, 2010, granting the motion of Plaintiff-Appellee Newspaper Guild (“the Guild”) for summary
judgment and denying Hearst’s cross-motion for summary judgment. This appeal calls upon us
to decide whether the district court erred in concluding that the parties’ dispute over “checkoff”
— or deduction and remittance — of union dues is subject to arbitration pursuant to their expired
collective-bargaining agreement. As set forth below, we hold that the Guild’s contractual right
to checkoff of union dues survives expiration of the agreement, thus subjecting the parties’
dispute to arbitration. For the reasons stated herein, the judgment of the district court is
AFFIRMED.
BACKGROUND
The facts of this case are not in dispute. The Guild is a labor organization that represents
a bargaining unit of Hearst’s employees. Hearst is a publisher of, among other things, the
Albany Times Union and the Sunday Times Union, two newspapers of general circulation in
Albany.
On December 1, 2005, the Guild and Hearst entered into a collective-bargaining
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agreement (the “CBA”), which, by its terms, was effective from August 1, 2004 to August 1,
2008. Section 10.E. of the CBA, which sets forth a procedure for resolving grievances between
the parties, states in relevant part: “Any formal grievance involving the interpretation or
application of this agreement may be submitted to final and binding arbitration.” J.A. 67.
Section 13, entitled “Dues Checkoff,” provides:
Upon an employee’s voluntary written assignment, the Company [Hearst] shall
deduct weekly from the salary account of such employee and pay to the Guild on
the fifteenth (15th) day of each month, but in no event later than the twentieth
(20th), all membership dues levied by the Guild for the current month. Such
membership dues shall be deducted from the employee’s salary in accordance
with a schedule furnished the Company by the Guild on the first (1st) day of each
month. . . . An employee’s voluntary written assignment shall remain effective in
accordance with the terms of such assignments. All such deductions shall be
made in conformity with local, state or federal legislation.
Such assignments shall be made upon the following form:
To: Capital Newspapers Division – The Hearst Corporation
I hereby assign to the Newspaper Guild of Albany, NY from any salary earned or
to be earned by me as your employee, an amount equal to all membership dues
lawfully levied against me by the Guild for each calendar month following the
date of this assignment as certified by the treasurer of the Newspaper Guild of
Albany, NY.
I hereby authorize and request you to check off and deduct such amounts during
the month for which such dues are levied and the Guild so notifies you, from any
salary then standing to my credit as your employee, and to remit the amount
deducted to the Newspaper Guild of Albany, NY, not later than the twentieth
(20th) day of that month.
This assignment and authorization shall remain in effect until revoked by me, but
shall be irrevocable for a period of one (1) year from the date appearing below or
until the termination of the collective bargaining agreement between yourself and
the Guild whichever occurs sooner. I further agree and direct that this
assignment and authorization shall be renewed automatically and shall be
irrevocable for successive periods of one (1) year each or for the period of each
succeeding applicable collective agreement between yourself and the Guild,
whichever period shall be shorter, unless written notice of its revocation is given
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by me to yourself and to the Guild by registered mail not more than thirty (30)
days and not less than fifteen (15) days prior to the expiration of each period of
one (1) year, or of each applicable collective bargaining agreement between
yourself and the Guild, whichever occurs sooner. Such notice of revocation shall
become effective for the calendar month following the calendar month in which
you receive it.
This assignment and authorization supersedes all previous assignments and
authorization heretofore given to you by me in relation to my Guild membership
dues.
Employee’s Signature ____________________
Date ____________________
J.A. 76-77 (emphasis added).
In 2008, the parties agreed to extend the terms of the CBA pursuant to an interim
agreement dated June 15, 2008, which was subject to termination by either party upon thirty
days’ notice.
On March 10, 2009, Hearst notified the Guild by letter that it would terminate the CBA
effective April 9, 2009 pursuant to the interim agreement’s termination clause. Hearst’s letter
stated also that “[t]his shall include termination of the arbitration provisions in Section 10, and
the dues checkoff provisions in Section 13.” Id. at 149. On April 10, 2009, Hearst stopped
“checking off,” or deducting dues from employees’ paychecks and remitting them to the Guild.
The following month, on May 2, 2009, the Guild filed with Hearst a formal grievance
challenging Hearst’s discontinuation of dues checkoff and seeking collection and remittance of
all back dues with interest. The grievance stated that “[t]he cancellation of the dues checkoff
violates Section 13, which compels the employer to remit dues checkoff in accordance with any
unrevoked dues checkoff authorization.” Id. at 151. The grievance, however, went unresolved.
By letter dated May 14, 2009, the Guild stated its intention to invoke arbitration under the
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expired CBA. Hearst responded on May 27, 2009 that it would not agree to arbitrate the
grievance.
On July 2, 2009, the Guild brought this action to compel arbitration against Hearst. The
parties cross-moved for summary judgment as to whether their dues-checkoff dispute was
subject to the CBA’s arbitration clause and Hearst was required to continue collecting and
remitting dues to the Guild after the CBA had expired.
In a memorandum decision dated June 11, 2010, the district court granted the Guild’s
motion for summary judgment and denied Hearst’s cross-motion for summary judgment. See
Newspaper Guild/CWA of Albany v. Hearst Corp., No. 09-cv-764 (GLS/DRH), 2010 WL
2425909 (N.D.N.Y. June 11, 2010). The court identified the legal question as “whether the
parties’ intentions, as manifested in the language of the CBA, were for the dues checkoff
obligation to survive the CBA’s expiration.” Id. at *4. It determined:
[I]n light of the sweeping breadth of the arbitration clause, the nature of the dues
checkoff clause, and Hearst’s failure to identify a limitation on the continued
viability of the dues checkoff entitlement, the court concludes that the CBA
contemplates postexpiration arbitration of the issue of whether the Guild is
entitled to continued collection and remittance of dues. Accordingly, . . . the
CBA evidences an intent to arbitrate issues relating to dues checkoff obligations
even after expiration of the CBA . . . .
Id. (footnote omitted). The court therefore ordered the parties to submit their dues-checkoff
dispute to arbitration. Id. at *5.
This appeal followed.
DISCUSSION
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On appeal, Hearst argues that the district court erred in concluding that the parties’ dues-
checkoff dispute is subject to arbitration pursuant to the CBA. It maintains that the CBA does
not contemplate that Hearst’s dues-checkoff obligation would survive the CBA’s expiration and,
therefore, Hearst is not required to arbitrate this dispute. It argues also that Hearst has no
statutory obligation to continue remitting union dues to the Guild. We review de novo the
district court’s determination that the dispute is arbitrable. See Nat’l Ass’n of Broad. Emps. &
Technicians v. Am. Broad. Co., 140 F.3d 459, 461 (2d Cir. 1998).
The duty to arbitrate “is a creature of the collective-bargaining agreement [such] that a
party cannot be compelled to arbitrate any matter in the absence of a contractual obligation to do
so.” Nolde Bros., Inc. v. Local No. 358, Bakery & Confectionary Workers Union, 430 U.S. 243,
250-51 (1977). Nevertheless, the Supreme Court has stated that “[a]dherence to these principles
. . . does not require us to hold that termination of a collective-bargaining agreement
automatically extinguishes a party’s duty to arbitrate grievances arising under the contract.” Id.
at 251. In Nolde, the Court identified a presumption that “matters and disputes arising out of the
relation governed by contract” are subject to arbitration even after the contract expires. Litton
Fin. Printing Div. v. NLRB, 501 U.S. 190, 204 (1991) (discussing Nolde, 430 U.S. at 255). The
Court further explained in Litton that “[a] postexpiration grievance can be said to arise under the
contract only where it involves facts and occurrences that arose before expiration, where an
action taken after expiration infringes a right that accrued or vested under the agreement, or
where, under normal principles of contract interpretation, the disputed contractual right survives
expiration of the remainder of the agreement.” Id. at 205-06.
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As an initial matter, there is no dispute that the parties’ dues-checkoff grievance does not
involve “facts and occurrences” that arose before the CBA’s expiration or an “accrued or vested”
right under the CBA. Id. Hearst and the Guild likewise agree that Hearst’s obligation to collect
and remit union dues was governed by the CBA prior to its expiration. The fundamental
question therefore is whether, “under normal principles of contract interpretation, the disputed
contractual right survives expiration of the remainder of the agreement.” Id. at 206; see also
CPR (USA) Inc. v. Spray, 187 F.3d 245, 255 (2d Cir. 1999).
We begin with Hearst’s argument that the CBA is ambiguous as to whether the Guild’s
right to checkoff of union dues survives the CBA’s expiration and, therefore, the Guild has not
borne its burden of proof. The CBA provides that “[a]ny formal grievance involving the
interpretation or application of this agreement may be submitted to final and binding arbitration.”
J.A. 67. Section 13 of the CBA requires that “[u]pon an employee’s voluntary written
assignment,” Hearst “shall deduct weekly” and “pay to the Guild” employee union-membership
dues, id. at 76, and that “[a]n employee’s voluntary written assignment shall remain effective in
accordance with the terms of such assignments,” id. (emphasis added). Section 13 also
expressly sets forth the language of an employee’s dues-checkoff assignment: “This assignment
and authorization shall remain in effect until revoked by me . . . . I further agree and direct that
this assignment and authorization shall be renewed automatically and shall be irrevocable for
successive periods of one (1) year each for the period of each succeeding applicable collective
bargaining agreement between yourself and the Guild . . . .” Id. at 76-77 (emphasis added).
Thus, by its terms, the CBA provides that Hearst “shall deduct” and remit to the Guild
employee union dues upon an employee’s written assignment. Such assignment remains
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effective according to the terms of the employee assignment form, which in turn provides that
“this assignment and authorization” of dues-checkoff continues until revoked by the employee
and is automatically renewed and irrevocable in certain circumstances. By the same token, the
CBA does not provide Hearst the unilateral right to revoke any assignment. Nor is there any
indication that Hearst’s obligation to remit dues to the Guild terminates upon expiration of the
CBA. Accordingly, we hold, “under normal principles of contract interpretation,” Litton, 501
U.S. at 206, that the Guild’s right to checkoff of union dues survives expiration of the CBA.
Alternatively, Hearst contends that an employee’s assignment of dues “do[es] not create a
contractual obligation as between the employer and the union,” Def. Br. 28, as indicated by
United Brotherhood of Carpenters & Joiners of America v. Ohio Carpenters Health & Welfare
Fund, 926 F.2d 550 (6th Cir. 1991). In United Brotherhood, the Sixth Circuit stated that the
employee assignment form at issue “is the employee’s consent to the employer’s role as agent
for the union in the collection of dues. . . . It is not the source of the employer’s duty to collect
the dues and pay them to the union. That source is the collective bargaining agreement.” Id. at
557. Here, by contrast, the dues assignment form set forth in section 13, which states that the
assignment and authorization of dues may be revoked by the employee only, is an express
provision of the CBA and thus is part of the agreement between Hearst and the Guild. See Def.
Reply Br. 6 (conceding that the assignment “form appears in the agreement itself”). Hearst
therefore is bound by its terms.
Notwithstanding the language of the CBA, Hearst argues that under the National Labor
Relations Act (“NLRA”), 29 U.S.C. § 151 et seq., an employer is not required to continue
collecting and remitting union dues after its collective-bargaining agreement expires. The
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National Labor Relations Board (“NLRB”), however, has held that such a requirement may be
imposed by contract. See Frito Lay, Inc., 243 NLRB 137, 139 (1979) (observing that dues-
checkoff dispute “was one involving contract interpretation rather than one involving an
interpretation and application of the [NLRA]” (internal quotation marks omitted)); see also id.(“The employees voluntarily executed checkoff authorizations which expressly contemplated the
possibility of periods when no contract would be in effect. . . . Since the employees did not
revoke their authorizations . . . , the Union and the Employer were justified in considering the
authorizations still valid.”). As Hearst concedes, “[p]arties certainly may lawfully agree to
continue checkoff; the question is whether these parties did.” Def. Reply Br. 8. Therefore, the
CBA, not the NLRA, governs Hearst’s dues-checkoff obligation. Insofar as Hearst asserts that
the NLRA “provides extrinsic evidence of the parties intent,” Def. Reply Br. 8, we conclude that
the CBA is unambiguous and, thus, reliance upon extrinsic evidence is inappropriate. See, e.g.,
Waldman ex rel. Elliott Waldman Pension Trust v. Riedinger, 423 F.3d 145, 149 (2d Cir. 2005)
(“[I]f a contract is unambiguous on its face, the parties’ rights under such a contract should be
determined solely by the terms expressed in the instrument itself rather than from extrinsic
evidence as to terms that were not expressed or judicial views as to what terms might be
preferable.” (alteration in original) (internal quotation marks omitted)).
Relying upon Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983), Hearst
rejoins that the Guild must prove that Hearst “clear[ly] and unmistakabl[y]” agreed “to stop
withholding dues from employees’ wages.” Def. Br. 21. Metropolitan Edison, however,
addresses whether a union waived certain of its officers’ rights protected by the NLRA. 460
U.S. at 707-08. Because Hearst’s statutory rights and obligations under the NLRA are not at
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issue in this case, see Frito-Lay, 243 NLRB at 139, the requirements for waiver of a statutorily
protected right are inapplicable. Accordingly, Hearst’s reliance upon Metropolitan Edison is
misplaced.
Finally, we note that the conclusion we reach today is entirely consistent with the First
Circuit’s decision in Providence Journal Co. v. Providence Newspaper Guild, 308 F.3d 129 (1st
Cir. 2002). There, as here, an expired collective-bargaining agreement between a labor union
and a newspaper publisher contained a broad arbitration clause and a dues-checkoff provision,
which required the publisher to deduct union dues from employees’ wages and remit them to the
union upon employees’ written authorization. The dues-checkoff provision stated in pertinent
part:
Such [dues] assignment and authorization, to be made on a form agreed upon by
the Parties, shall remain in effect until revoked by the employee or irregular extra,
but shall be irrevocable for a period of one (1) year from the date of the
assignment, or until the termination of the Collective Bargaining Agreement,
whichever occurs sooner.
J.A. 182. After the agreement had expired, the union sought to compel arbitration against the
publisher of its claim for continued remittance of union dues on the ground that the dues-
checkoff provision, “on its face, contemplated the continued effectiveness of dues checkoff
following contract expiration because dues checkoff required revocation by the employee and
not the employer.” 308 F.3d at 131. The First Circuit, applying Litton, observed that the
publisher’s “employees voluntarily executed checkoff authorizations which expressly
contemplated the possibility of periods when no contract would be in effect.” Id. at 132 (internal
quotation marks omitted). It concluded that “[b]ecause [the agreement] clearly contemplates the
continued effectiveness of the dues checkoff [obligation], it is properly subject to arbitration.”
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Id. Consequently, the First Circuit affirmed the district court’s grant of summary judgment in
favor of the union and its order directing the parties to arbitration.
Hearst maintains that “while the dues checkoff provision in Providence Journal did
contain similar language to the one at issue here, that provision did not exist on its own, but was
instead linked to a robust union security clause which itself evidenced an unmistakable intention
by the parties to have the provisions survive expiration of the collective bargaining agreement.”
Def. Br. 30. Although the First Circuit held, in a separate section of its opinion, that a grievance
arising under the agreement’s union-security clause also was arbitrable, it found the parties’
dues-checkoff dispute to be arbitrable based solely upon the language of the dues-checkoff
provision. See Providence Journal, 308 F.3d at 132. Hearst’s attempt to distinguish Providence
Journal on this ground is therefore unavailing. Accordingly, the First Circuit’s reasoning
supports our conclusion that the dues-checkoff dispute between Hearst and the Guild is subject
to arbitration.1
CONCLUSION
In summary, we hold that the Guild’s contractual right to checkoff of union dues survives
expiration of the CBA, thus subjecting the parties’ dues-checkoff dispute to arbitration. For the
foregoing reasons, the judgment of the district court is AFFIRMED.
1
We express no view on the merits of the Guild’s dues-checkoff grievance. We decide
only that the parties’ dispute is arbitrable pursuant to the expired CBA. See Nolde, 430 U.S. at
249 (“Of course, in determining the arbitrability of the dispute, the merits of the underlying
claim . . . are not before us.”).
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