mathematically that the great majority of pressmen voted for the contract.
16. Local officials neither sought nor received International approval of the contract or the preceding negotiations.
17. Plaintiffs unsuccessfully protested within the Local its approval of the agreement with the Star. On June 6, 1976, plaintiffs appealed the Local's actions and decision to the International President and the International Board. They denied the appeal because, in the President's opinion, the International was not a party to the agreement and lacked power to restore plaintiffs' priorities. Plaintiffs took no appeal to the International Convention.
III. Conclusions of Law
A. Duty of Fair Representation Claim
1. The employee's right to sue for breach of a union's duty of fair representation developed as a necessary counterweight to the broad authority vested in unions to bargain on behalf of workers and to settle their individual grievances. See Hines v. Anchor Motor Freight, 424 U.S. 554, 563-67, 96 S. Ct. 1048, 47 L. Ed. 2d 231 (1976). The subordination of the interest of individual employees carries with it a "responsibility and duty of fair representation," Humphrey v. Moore, 375 U.S. 335, 342, 84 S. Ct. 363, 368, 11 L. Ed. 2d 370 (1964), which serve as a "bulwark to prevent arbitrary union conduct against individuals stripped of traditional forms of redress by the provisions of federal labor law." Vaca v. Sipes, 386 U.S. 171, 182, 87 S. Ct. 903, 912, 17 L. Ed. 2d 842 (1967). The indicium of a breach of this duty is conduct toward members of the "collective bargaining unit which is arbitrary, discriminatory, or in bad faith." Id. at 190, 87 S. Ct. at 916. Suits for breach of this duty have arisen in many different contexts. In one case involving seniority rights, one Court of Appeals held that where plaintiffs had made a showing that a minority of employees had been deprived of seniority rights, "for no apparent reason other than political expediency", the burden would shift to the union to show "objective justification for its conduct beyond that of placating the desires of the majority of the unit employees at the expense of the minority . . ." Barton Brands, Ltd. v. N.L.R.B., 529 F.2d 793, 800 (7th Cir. 1976).
In the present posture of this case, plaintiffs have presented no evidence that the union's conduct was arbitrary, discriminatory or taken in bad faith. On the other hand, the record contains uncontested facts which establish that the settlement at issue here was neither arbitrary nor discriminatory action:
(a) The agreement was ratified by the pressmen, the class of which plaintiff is a member. After the Local negotiated the contract, including the dovetailing provision, the membership discussed it at a two-hour meeting and voted 2 to 1 to approve it. The membership voted for the provision despite the fact that the President of the Union recommended a negative vote on the proposal.
(b) The class of pressmen affected is not a helpless minority. At the time of the 1972-3 merger of pressmen and stereotypers and ever since, there have been ten times more Star pressmen than Star stereotypers in Local 6.
The following factors represent objective reasons for the union's acceptance of the settlement:
(c) The Star was under straitened economic circumstances and the parties were aware of those circumstances; those circumstances might have led to eliminating the jobs of pressmen and stereotypes alike.
(d) Given the Star's pledge to the stereotyper minority, unless the stereotypers could be dovetailed, no, or almost no, reduction of manpower and consequential cost savings could be effected.
The combination of ratification of the agreement by the pressmen, the existence of well-known, objective reasons for the union's acceptance of the agreement, and the absence of any evidence of discrimination make plaintiffs' case a difficult one. Nonetheless, plaintiffs argue that the union breached contractual duties with its members when it entered negotiations and reached a settlement about seniority, and that this breach is also a violation of the union's duty of fair representation. This position of plaintiffs is no stronger than its generalized unfair representation claim.
2. Plaintiffs contend that the unions' merger agreements required that any stereotypers displaced must be endtailed in the pressroom. They invoke the simple and generally immutable principle that a contract is written to be performed. Any bargaining and any agreement reached contrary to duties under that contract were both arbitrary and unfair, they contend, and therefore violated the unions' duty of fair representation. The Court rejects plaintiffs' view both of the duties among the parties and of the consequences of the purported breach of the merger agreement.
(a) The merger agreements upon which plaintiffs' case depends do not exist in a vacuum. The contractual relations among the parties are shaped also by the NLRB decision to permit the Star to assign to the Photo Engravers Union some of the tasks previously performed by the Stereotypers Union, 181 NLRB 784 (1970). That decision, based in part upon representations to the Board by the Star that no stereotypers would be discharged, was made before the merger agreements were entered and it pre-empts and governs those latter agreements insofar as they affect the status of the Star stereotyper minority in the local. The Star's duty to that minority in any negotiations with the unions over priorities was further reinforced by the representations of Harold Boyd to David Barr, attorney for Stereotypers Local 19.
(b) More complete analysis requires consideration of national labor law which further affects the contractual duties among the parties. A fundamental policy of labor law is the encouragement of collective bargaining. Absent discrimination or unfairness which cannot be remedied through negotiation, freely-bargained solutions are to be preferred to those imposed upon the parties by the judicial system. Myers v. Gilman Paper Corp., 544 F.2d 837, 844 (5th Cir. 1977).
The significance of a clause purporting to fix a union's position with respect to seniority, then, must be evaluated in light of statutory duties to bargain collectively. Plaintiff cites a number of cases for the proposition that a union constitution and bylaws may restrict the bargaining range of union negotiators. The Court does not so read them. In Laturner v. Burlington, 501 F.2d 593 (9th Cir. 1974), the issue was whether the Brotherhood of Local Engineers (BLE)"s decision to implement a "date of hire" method for consolidating seniority rosters following a railroad merger constituted a breach of the duty of fair representation because it was inequitable and in violation of a provision of the union's constitution, (the "Rule"). By reviewing the seniority plan under the standards set forth in the constitution, the Ninth Circuit concluded that the plan was both equitable and within the latitude permitted by that constitution. It relied upon two other cases which gave a broad reading to the same union provision of the union constitution. Price v. Seaboard Coast Railroad, 332 F. Supp. 1093 (N.D.Ala.1970), Aff'd per curiam, 449 F.2d 1371 (5th Cir. 1971); Witherspoon v. Grand International Brotherhood of Locomotive Engineers, 260 S.C. 117, 194 S.E.2d 399 (1973). In reviewing those cases, Judge Sneed noted their limited holdings:
In both cases, the courts' overriding concern was whether the method of consolidation actually implemented by the union had resulted in an equitable solution . . . In each instance, the court resorted to the language of the Rule primarily as an aid in determining the central issue of whether the consolidation had been equitable; and in both the court was careful to avoid becoming enmeshed in the question of whether, and to what extent, the BLE was limited in the factors it could apply. 24 . . . we are not willing to accept the argument that these cases foreclosed other methods of consolidation which might have proven equally equitable but which were not as clearly within the express language of the Rule.
In footnote 24, he continued:
For example, the court in Witherspoon expressly refused to rule on the issue of whether the BLE had violated the (Rule) in implementing the consolidation. Having found that the consolidation was within the "wide range of reasonableness granted bargaining agents", 194 S.E.2d at 403, and thus not a breach of the union's duty of fair representation, the court went on to hold that even if a constitutional violation had occurred it would not have the effect of nullifying the collective bargaining agreement between the union and the merged carrier. 194 S.E.2d at 404.