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November 6, 1985



The opinion of the court was delivered by: GREEN

This matter is before the Court on plaintiff's motion for summary judgment, defendant's opposition thereto and cross-motion for summary judgment, supplemental briefing by both parties on the respective motions, and the entire record herein. For the reasons stated below, the Court grants in part and denies in part plaintiff's motion for summary judgment and grants in part and denies in part defendant's cross-motion for summary judgment.

Findings of Fact

 Plaintiff Washington-Baltimore Newspaper Guild, Local 35 ("Guild") is an unincorporated association and labor organization which represents employees of a number of employers for collective bargaining purposes. In this action, the jurisdiction of the Guild extends to "all employees . . . in the Advertising, Business, Circulation, Editorial, and News Departments, the maskers and scalers of the Engraving Department, and composing room assistants of the newspaper, The Washington Post," with certain exceptions. Plaintiff's Statement of Material Facts as to Which There Is No Genuine Issue ("Plaintiff's Facts") para. 4. Defendant The Washington Post Company ("The Post") is a corporation organized under the laws of the State of Delaware with its headquarters in Washington, D.C. Defendant owns and publishes The Washington Post, a daily and Sunday newspaper of general circulation.

 The Post and the Guild have been parties to a series of collective bargaining agreements over the years, including an agreement which became effective by its terms from July 10, 1979 through July 9, 1982 ("1979 Agreement"). Plaintiff's Facts para. 3; Defendant's Statement of Material Facts as to Which There Is No Genuine Issue ("Defendant's Facts") paras. 3, 6.

 In September 1980, during the term of the 1979 Agreement, The Post installed and made operational a new video display terminal (VDT) computer news system manufactured by Raytheon Corporation. Complaint, Exhibit D at 16; Memorandum of Points and Authorities in Opposition to Plaintiff's Supplemental Motion for Summary Judgment and In Support of Defendant's Supplemental Motion for Summary Judgment ("Defendant's Opposition to Plaintiff's Supplemental Motion for Summary Judgment") at 6. As the newsroom began to utilize this equipment for the publication of the newspaper, copy editors and chief copy editors (also known as "slot persons") were assigned duties different from and additional to the editing duties which had constituted the nature of their respective positions. These slot persons now were given the task of area composition, which entailed arranging the copy precisely as it would appear in the page. The Guild, through its representatives, filed a grievance with the Post, pursuant to Article XXII of the 1979 Agreement, on the ground that The Post had effectuated a substantial change in the duties and responsibilities of the position of copy editor and slot person without following the requirements of Article VI, Section 6(b) of the contract, and seeking a wage increase for those employees whose jobs were affected by the new VDT system. Plaintiff's Facts para. 8; Defendant's Facts para. 10.

 When the matter could not be resolved by the parties, they submitted the issue to arbitration. James V. Altieri, Esquire, was selected by the parties to hear and resolve the controversy. Nine days of hearings were held in Washington, D.C., between May 1982 and June 1983. Both parties submitted post-hearing memoranda to the arbitrator which presented their respective positions concerning whether there had been a substantial change and whether a wage increase was proper.

 During the time that the briefs were submitted, the parties also were engaged in negotiations for the purpose of agreeing to a collective bargaining agreement to succeed the 1979 Agreement. Although the stated termination date of the 1979 Agreement was July 9, 1982, the parties continued to abide by the contract's terms and provisions for over a year after this date, pursuant to the "evergreen clause" of Article XXIII(1), because neither the Guild nor The Post gave the requisite notice.

 Article XXIII(1) of the 1979 Agreement states:

This Agreement shall be effective from July 10, 1979 to July 9, 1982, and thereafter, but it shall be terminated, and all terms and provisions shall become null and void, in the event of (1) a strike called by the Guild, or (2) a lockout declared by The Post, or (3) five (5) days written notice by either party at any time after thirty (30) days following July 9, 1982 to the other of its termination of the Agreement.

 Complaint, Exhibit A at 60. Subsequently, The Post gave the required notice under the "evergreen clause" on September 9, 1983, and terminated the terms and provisions of the 1979 Agreement. *fn1"

 The parties executed a successor collective bargaining agreement on November 28, 1983 ("1983 Agreement"), which is currently in effect and will run through July 9, 1986. The 1983 Agreement contains general salary increases for The Post employees including those employees covered by the Guild's grievance. These increases were retroactive to July 12, 1982, the first day of the first pay period following the stated expiration date of the 1979 Agreement, July 9, 1982.

 Shortly after the execution of the 1983 Agreement, Arbitrator Altieri issued an Interim Opinion and Award as to the grievance filed by the Guild. The arbitrator concluded that the imposition of the additional duties and responsibilities on copy desk personnel violated Article VI, Section 6(b) of the 1979 Agreement. The Award also provided the parties with a sixty-day period to develop their own remedy, after which time either party could petition the arbitrator for a remedy which would be binding on the parties.

 The parties, however, could not agree on an appropriate amount of compensation for the new duties. The Post maintained that the wages should not be changed, or if a change were appropriate, that the wages should be decreased. The Guild continued to argue that a wage increase was owed from the date the grievance had been filed. Thereafter, the Guild asked the arbitrator to issue a final Opinion and Award, and to order whatever remedy, if any, was appropriate. In response to the Guild's request, The Post sent a letter to Arbitrator Altieri arguing that, assuming arguendo that some wage alteration were appropriate, the execution of the successor collective bargaining agreement on November 28, 1983, and the accompanying bargaining history precluded the arbitrator from altering wage rates for the period encompassed by the new collective bargaining agreement.

 Both parties argued their respective positions at a hearing held before the arbitrator on October 2, 1984. After submission of post-hearing memorandum, Arbitrator Altieri issued his Final Opinion and Award on December 19, 1984, which again held that there had been a substantial change in the duties and responsibilities of the copy editors and slot persons, and found that this change entitled these employees to a five percent wage increase beginning on September 1, 1980, through July 9, 1982. Complaint, Exhibit N at 12. However, the arbitrator also held that the wage provisions in the new collective bargaining agreement set and controlled the wage rates for these employees subsequent to July 9, 1982, the stated termination date of the 1979 Agreement. Id. at 10.

 The Guild disagreed with the latter part of the arbitrator's Award and, by letter, sought The Post's agreement to resubmit this issue to the arbitrator. The Post declined and the Guild instituted this civil action.

 In its original complaint, the Guild asked this Court to vacate that portion of the arbitrator's Opinion and Award which terminated backpay liability as of July 9, 1982, and order The Post to calculate backpay through September 1983, or alternatively, remand the proceeding to the arbitrator for a revision of his Opinion and Award. The Guild amended its complaint after The Post notified it in mid-May 1985, that no department (thus no copy editor or slot person) had converted to area composition prior to March 1, 1981. Consequently, The Post submitted a list of the eligibility dates for those employees who The Post believed were entitled to compensation pursuant to Arbitrator Altieri's Award to the Guild for review. The Guild took the position that all copy editors and slot persons should receive extra backpay for work performed after September 1, 1980, and amended its complaint to include this allegation.

 Thereafter, both the Guild and The Post filed motions for summary judgment and submitted supplemental ...

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