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.

                                             _______________


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




                                                 -5-
       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.




                                                 -6-
       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


                                                  -8-
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


                                                 -9-
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.”


                                                -10-
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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