St. Louis Newspaper Guild

Earlier this month, in our case involving the yellow contract retirees, Lee – after receiving several extensions – finally replied to our motion.  They did this several ways.  First, they counter-sued and seem to want to get a decision under ERISA – the federal law regarding pension plans.  Now, our suit wasn’t filed to have anything decided under ERISA; it was filed to compel arbitration.  The legal differences and reasoning behind it all gets rather complicated and I don’t care to lay out points of strategy on such a public forum, so I will let it go at that.

With their filing, Lee has gone off in a slightly different direction.  In their counter-suit, they ask the court to declare (under the ‘Declaratory Judgement Act”), that they have the right to do what they did under ERISA.  Lee doesn’t stop there though and their suit doesn’t just name the Guild – it names the retirees as defendants as well!  Lee has filed what they are characterizing as a  class-action suit and want to get the court to not only issue a declaratory judgement stating that they have the right to do what they did under ERISA; they also want the court to declare that our retirees can’t sue them in a class-action suit anytime in the future (Did somebody hear something?  Are people getting nervous?).

Most legal scholars would agree that a class-action suit involves a bunch of wronged parties suing a lone, guilty party.  It seems to me – an admitted layman – that it’s a bit of a stretch to think that one party suing a bunch of different parties is the same thing.  But there you have it.  Lee – the company that paid more for a single paper than their entire media empire is now worth – has gone backwards through the looking glass again (however, a quick look online at their new attorneys and one learns that their firm does have a department that handles such things, so who can say).

But – curiouser and curiouser – that’s not the end of it.  To make matters worse, Lee named three seemingly random retirees as “class representatives” and had them served with subpoenas.  One presumes that Lee somehow expects these three retirees, who are living on fixed incomes and who recently have had to purchase health care coverage, to be able to hire attorneys to represent them in federal court.

Then today, Lee struck again.  Going for another declaratory judgement, the corporation filed another counter-suit.  This time they filed against the Guild and our blue contract retirees and they named three more retirees as class representatives for that group as well.  What a world.

As I stated earlier, it is not my intention to discuss pending legal maneuvers, so I will just say that the Guild is busy preparing its response.

In September of 2010 we won the right in federal court to proceed to arbitration on behalf of our blue contract retirees about whether or not the company had the right to force them to pay for their retiree medical coverage after being promised – in writing – that their coverage would be free.

Immediately following that victory Lee appealed and, on April 11, oral arguments were heard before the eight circuit court of appeals.  Recently the appeals court handed down their decision and it is a no-decision of sorts.

After all kinds of filings and precedent were introduced, the appeals court ruled that, before an arbitration hearing can be held, the matter of vesting should be decided for once and for all.  Then they sent the case back to our original judge to have him make that determination.  What this means is that we now have a couple more months to wait while the judge mulls over the arguments.

If you’re thinking that the judge had ruled on this back in September, you’re partially right.  Back then the judge ruled that we had a ‘reasonable expectation’ of vesting but left the ultimate decision about that to the arbitrator.  What the appeals court is now saying is that issue must being settled first before it can move on.  So once more we wait and it appears that – one way or another – the matter may be decided right here.  Because if the judge rules against vesting, we’re not going to be able to get in front of an arbitrator and, if a federal judge rules that our retired member’s rights are vested, what arbitrator in his right mind is going to rule otherwise?

We’ll keep you posted.

When our attorney received word this week that Lee was appealing our recent legal victory to the full eighth circuit, there was a different lead attorney as well as a different law firm listed on the notice of appeal. So goodbye King and Ballow. It sure has been a lot of fun (we’re seriously considering sending a funeral wreath).

Lee is now being represented by Seyfarth Shaw out of Chicago.

In a case involving two expired bargaining agreements between the Post Dispatch and Local 38N Graphic Communications Conference/IBT (one agreement that was effective from November 1994 until April 2002, and another that was effective from April 2002 until April 2006) the U.S. District Court for the Eastern District of Missouri ruled on June 18 (Local 38N Graphic Communications Conference/IBT v. St. Louis Post Dispatch LLC, E.D. Mo., No. 4:09CV438-DJS, 6/18/10) that, “By the terms of the parties’ agreements, a duty to arbitrate the instant grievances does not exist, and the Court cannot compel defendant to arbitrate in the absence of a contractual obligation to do so.”

Local 38N alleged in its complaint that in 2008 and early 2010, the P-D made unilateral changes to health benefits of individuals who retired under both agreements.  Local 38N filed grievances about the changes and demanded arbitration.  When the P-D refused to arbitrate, Local 38N filed its lawsuit.

Sure sounds like our case, doesn’t it? This ruling is likely to cause a lot of our retirees to panic, thinking that this is our case before the court.  It isn’t.  Many may assume that a negative ruling on such a similar issue means we’re doomed.  It doesn’t.

What needs pointing our here is that both of the collective bargaining agreements contained arbitration provisions which stated that grievances that arose under the agreements but were based on events that occurred after the termination of the agreements were excluded from the jurisdiction of the arbitrator.

So our case, which addresses “lifetime” benefits and which asserts that our member’s rights were vested and then carried forward, remains before the court.  The Pressmen case should not impact how ours is decided.  In fact, while reading the award , something jumps off the page and comes right at you.  It is the third footnote in the ruling.  It’s on page four and it states, “Another case pending in this district, Newspaper Guild of St. Louis, Local 36047, TNG-CWA v St. Louis Post-Dispatch LLC, involves a similar dispute.  However, a substantial difference in the agreements underlying these actions exists, namely, the language included in article XI, section 4 of the agreements between the parties to this action.”

So there ya go (by the way, I think they meant Article XVI).

Keep the faith.

We’ve been getting calls at the Guild office from Post-Dispatch retirees wanting to know if their pensions are going to be impacted by the proposed pension freeze in the company’s last, best and final offer.  The answer is no.  The company’s proposal affects only those still working at the paper.  In a similar vein, some retirees have called asking about voting on Saturday and, since the proposal affects only those currently employed at the P-D, everyone needs to understand that active members are the only ones eligible to attend the meeting and vote.

Current contract (2004-present) retirees are anxious about whether or not their retiree medical benefits will be eliminated if the proposal is voted in or if it gets imposed.  The only answer is that we honestly do not know what Lee Enterprises has in mind.  They might do what they did to our earlier retirees, those who left during the blue (1994-2004) contract, and cut their benefits.  They might do it soon or wait until the end of the year.  Or they may do nothing at all (we believe that the yellow contract’s language is stronger in the area of benefit rights).

Should Lee once again cut retiree benefits, the Guild would once again file a grievance and attempt to get it before an arbitrator, which could mean another trip into federal court.  At this point there’s no way of knowing anything for sure.  Just know that the Guild will stand up for your rights.

One other thing should be noted and that is that many of those who retired under this agreement did so as a result of an enhanced buyout offer.  Members who retired under those terms received a written document from the company stating that their medical premiums would be totally free and those individuals may have another legal argument altogether.  In any event, if you are a retiree that currently enjoys free medical, please contact this office the minute you hear that anything about your benefits changing.  Thank you.

Nearly 200 protesters showed up on a cold December morning to protest Lee Enterprise’s latest outrage: eliminating retiree health care.  Click on below to view some of the goings-on:

http://www.youtube.com/watch?v=zuRKQgoi0mQ

To hear the following morning’s radio interview on the McGraw show, click on:

http://ktrs.com/mambots/content/wp_popup.php?playerID=1&soundFile=/images/media/audio/sduffy.mp3

KMOX published an article about the protest on their website:

http://www.kmox.com/pages/5900738.php?

And  finally…KSDK-TV led off their 6:00 p.m. news with it and their accompanying web story drew a couple dozen responses – almost all siding with the retirees.  Check out both at:

http://www.ksdk.com/news/local/story.aspx?storyid=191846

In an act of corporate greed, Lee Enterprises (NYSE: LEE), owner of the St. Louis Post-Dispatch, is canceling company-paid health insurance for scores of retirees, the Newspaper Guild of St. Louis announced today.

Some couples will have to pay $1,574 per month to continue coverage under company plans.

The move affects about 100 retired Guild members, and dozens more management retirees. Many will lose their health coverage because they can’t afford the premiums.

The union expects Lee to cancel coverage for dozens of other retirees once the current union contract expires.

“Lee is trying to increase its profits on the backs of the sick and elderly. The greed and venality of this profitable corporation know no bounds,” said Shannon Duffy, business administrator for the union, which represents news and advertising employees at the paper.

While stiffing their retirees, executives of Lee continue to rake in cash for themselves. CEO Mary Junck received compensation worth $2.5 million in the 2008 fiscal year, according to the company proxy. Chief Financial Office Carl Schmidt was paid $1.2 million.

“For executives to enrich themselves while cutting health care for the elderly is morally repugnant,” said Duffy.

“Lee is reneging on a promise made to men and women who dedicated their working lives to the Post-Dispatch,” said Duffy. “That promise was explicit in union contracts.”

In many cases, company representatives repeated that promise personally to employees when they were considering retirement.

Guild members were promised company-paid health coverage for life. On the strength of that promise, many retired before becoming eligible for Medicare. They will now be forced to pay premiums as high as $1,161 a month for a husband and wife. In many cases, the premiums exceed their company pensions. Retirees on Medicare will lose their Lee supplementary health coverage completely.

The Newspaper Guild is already pursuing a law suit with the aim of forcing Lee to pay the full cost of retiree health coverage. That suit was filed months ago after Lee began requiring retirees to pay one third of coverage premiums.

“Lee Enterprises may abandon its retirees. Their union never will,” said Duffy.

Lee, based in Davenport, Iowa, owns 53 newspapers around the nation. The company reported a profit of $1.75 million in the September quarter, which marked the low point of the recession. The Post-Dispatch also makes a hefty profit in the form of positive cash flow for Lee.

The company notified retirees of its decision in letters dated Dec. 4. They will lose their health insurance subsidy on Jan. 1.

Retirees will demonstrate outside the Post-Dispatch building, 900 North Tucker Boulevard in downtown St. Louis, at 10 a.m. on Tuesday, Dec. 15.

As everyone knows by now, January 1 of this year the Lee Corporation implemented changes to the way our members accrue – and receive – retiree medical care.  In response, the Guild filed three separate grievances.  We expect to learn more about the settlement of those grievances soon.  The grievances were about:

1.  The company’s elimination of the low-deductible plan for P-D retirees.  We grieved this because, while this plan is no longer offered to our retirees, it has not gone away for active employees.  And article 16, section 1 of our contract clearly links our retirees’ medical plans to the company’s ACTIVE administrative/supervisory employees (the thinking of the Guild bargaining committee was that the company may not hesitate to screw over its retirees but would be less likely to do it to the current bosses).  You can read it yourself – it’s on page 31 of our contract.

2.  The company’s creation of Retiree Health Retirement Accounts (RHRA).   This also violates 16.1 of our contract, as retiree benefits are to be “…paid for by the Employer, for the retirees lifetime only“  (that passage can be found at the bottom of page 32 of the contract).  By assigning current Guild members some arbitrary amount of credit to be used against future premiums it is extremely possible that, over time, those accounts would become empty and our members would cease to have insurance.  This action taken by Lee Corporate has no contractual basis and begs the question:  What is it about the word “lifetime” that you don’t understand?

Each of these grievances was arbitrated recently .  The low-deductible grievance was held over a two-day period – Sep 9 and Nov 9 – and the RHRA arbitration was held on Sept 23 and Nov 4.  They were heard by separate arbitrators but are now both at the stage where the written transcripts will be mailed to the parties after which both sides will engage – through the arbitrators – in a simultaneous exchange of briefs.  The briefs in the RHRA case are due on December 31.  The briefs on the low-deductible case have to be submitted by Jan 19.  After an arbitrator has received the briefs, he/she will typically take 30 to 60 days to render a decision.  So we should have an answer on both of these issues by spring.  The Guild put on a strong case and, although one can never be totally sure of anything when it comes to arbitration, we are confident that we will prevail.

*NOTE:  Both of the above situations deal with violations of our current (yellow) contract.  The next case deals with our previous (blue) contract.

3.  Making Guild retirees who left under the former (1994-2004) contract pay for 30% of their premiums.  This case poses a real hardship for our retirees now living on a fixed income.  As soon as it was filed (based, again, on 16.1 and the Employer paying for benefits for the employee’s lifetime) the company denied it.  Interestingly, they did not base their denial on contractual language but based it on the premise that one cannot grieve an expired contract.

While the company’s position is true – to a point – it ignores an equally important legal premise of when and how rights “vest” and are then carried forward under a collective bargaining agreement.  And since they have refused to participate in the arbitration process for this grievance, we have entered into federal court and filed suit to compel them to arbitrate.

We need to be honest here and state that this is not an easy case to win.  The 8th circuit (where we are located) is not exactly friendly to these type of cases (see Ameren) but we still believe we have a good argument to make.  Shortly after we filed, Lee’s attorneys (from everybody’s favorite law firm of King and Ballow) filed a motion to dismiss.  Our attorney filed a brilliant reply brief, their motion was denied in June and the case moved forward to the next stage (to read a report on that, go to the ride side of this page, click on “announcements” or “benefits” and scroll down to the June 29 article).

The next stage is three-pronged process – motion, opposition and reply – all of which are undertaken by both parties at the same time (thus they are called “cross motions”).  The first prong is a motion for summary judgment and both sides have filed and asked the court to rule in their favor.  Unlike motions to dismiss (which are based on pleadings), motions for summary judgment are based on the undisputed facts (sworn depositions, testimony and affidavits…btw, to read a most informative account of such depositions, click on “uncategorized” on the right side of this page..the first article should tell you all you need to know).  As I said, both sides have already filed; we have their motion and King and Ballow has ours.  The parties now have until December 2 to respond (opposition) and then both have until Dec 15 to reply to the other’s opposition.  This is an incredibly important case.  It is very nuanced and complicated and the local hired the very best attorney around to represent our members.  Our attorney’s name is Barbara Camens and her firm, Barr and Camens, is located in Washington, D.C.  She has argued cases in courts around the U.S and has done extensive work for our international and is an authority on issues such as these.  We are in very good hands.  Now, people should understand that such legal work is not inexpensive but everyone on our local’s Executive Committee had the same reaction:  Our retirees spent their lifetime paying dues, we’ve got their back now.

So with the reply briefs due by December 15, the question everyone wants to know is, “When will the court rule?”  There is no hard and fast rule that applies here.  It can be as quick as two weeks (not likely) or as long as six months.

One final thought… Lee’s change to their retiree medical policy is saving them millions of dollars, according to recent filings.  Obviously all of that savings isn’t just coming from Guild retirees but it’s definitely a part of it.  Therefore, should we prevail in federal court and get a judgment that compels arbitration, we can probably expect to see Lee move immediately for an appeal to the 8th circuit.  This whole process could then take another year or two.  If that happens, remember that our grievance demanded that the company not just cease and desist their new and unfair practice, but that they also pay back our retirees for the dollars they were charged.  As time goes on, that amount grows .

So to all our retired brother and sisters:  Hang tough!  Know that, although one cannot predict definitively when all this will finally get resolved, your local is fighting the good fight.  And that takes time.  Stay strong.

Poor Mike Hammett. After the former P-D human resources director retired and went off to roam the U.S. in his mobile home, we learned that he had developed some health issues and had just recently undergone bypass surgery. And, while we are happy to report that his surgery was an apparent success (we saw him recently and he looked – and said he felt – great), it appears that the poor man’s well-being is being adversely affected in yet another area: his memory.

As regular readers of this site know, our local is involved in a federal suit to compel arbitration over a grievance that concerns an expired (1994-2004) contract (* a second contract – that expired in 2010 – has now been victimized by Lee as well – ed).  At stake is whether or not our members, who retired under that contract, will go back to receiving their medical benefits free of charge. It is a serious issue, with consequences that will impact how well our former coworkers live out their retirement.

Court cases typically involve witnesses getting deposed and you can imagine our surprise when Mike’s turn came and we learned about his sudden memory loss. It turns out that the poor guy can’t remember a single time when he told anyone that they would have free lifetime medical. Not one. This is in spite of the fact that many people  asked Mike about the lifetime-guarantee language in the contract, and all reports hold that he told everybody that they would have it free for the rest of their lives. Everyone remembers these conversations (wouldn’t you?) except Mike. There’s also a mountain of evidence of what both sides were proposing and counter-proposing and what they represented it to mean. It’s the damnedest thing. There’s also the fact that as recently as 2005 – when the buyout was offered – many additional Guild members had similar conversations with Mike, myself included, and all have the same recollection: Mike asserted they would have medical coverage free for their lifetime. Not since Ronald Reagan took the stand in the Iran Contra hearings have we witnessed such a rapid onset of amnesia.

Mike’s malady is unusual because, while he CAN’T recall answering anyone’s questions in the affirmative, he CAN recall crafting the now-famous language that is at the heart of this case; language that was first proposed for the ‘94 (blue) contract back in 1992. In fact, Mike claimed to have full knowledge of what the language could supposedly set into motion, having read certain 7th circuit rulings around that time. To us, this just demonstrates how despicable his disease can be: erasing positive, life-affirming memories, while retaining all kinds of back-and-forth scheming and minutia from 17 years earlier. We’ve read about such things.

So, to our retirees: as your court case moves forward, try not to be so selfish that you dwell only on yourself and whether or not you’re going to be required to continue to sacrifice a portion of your fixed income in order to have medical coverage. Instead, think of the one person who is the true tragic figure in all of this: poor forgetful Mike Hammett. There he is – driving all over the U.S. without any idea of just how sad he really is. Keep him in your thoughts and prayers. Because, to make matters worse, it turns out Mike’s affliction has triggered yet another ailment. But it’s one with which we may be able to help. We might not be able to restore his memory but we can all gather with flashlights at the local some evening and go out and help him look for his conscience.