Petition for Writ of Certiorari — Adelman v. Paramount Pictures, Inc.

G Tee Othice-Supreme S Us.

he FILED

ee | MAR 6) l¥u-

2 so S | JOHN F. DAVIS. cftRK

“IN THE fi |

_ Court of the Gnited States

Ocrosner Tero, 1461 hs

aa 4

«>

HARRIS kiclorae TURAL STEEL COMP ANY, INC,

‘Pe titione r,

*

; . 5 5 : Y 4 ‘ a .

UNITED STEELWORKERS. OF AMERICA, AFL-CIO,

LOCAL 3682, and UNITED STEELWORKERS OF

AMERICA, AFL-CIO, es ee :

“ : } 7 Respondent.

«

“PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES-COURT OF APPEALS _

- FOR THE THIRD CIRCUIT. :

‘Wituiam W. LANIGAN,

873 Sebring Avenue,

sound Brook, New Jersey,

M. Harvey SMepury,

- 101 Park. Avenue,

New York 17, New York.

Counsel for Petitioner. *

o - 7 9: - ”

.

TABLE OF CONTENTS :

_ PAGE

Opixtoxs BreLow fer 8 OAc MOOT ALCESTER 1

JURISDICTION «:....... cinapeniniiansieindaipninins ansaiecnanesiontccomanbpsneinnnonin .*.

q ee ‘ ne

“OQvusrions Pameawrep “22-2. neo-con sannlwadceyiltioas 2

Question DE Paneenicenccccevenenintesinwecencenlacscencenseniee tiene By A

Question No, D..ssntenroneensetreqesecsersneescnssansensenesnedzeonennete 2,19

Sraretes axp Conxtgact Provisions Ixvouvep —.......: . 2

STATEMENT Pe ERO AEF Nis As DO 4.

1. The € iasaaiat, The Granting of a Stay of

. Arbitration, Removal to the Distriet Conrt,

' Answer and I - ccsceeececiercierircnccsetnssces :

2. The Motion for Summary Judgment ............

_ 3. The Decision of the District Court _.._.: pecs

mare 2 Shuz Company’ ’s Appeal to.the United States i

~ Court of Appeals for the Third Cireuit 0... 9 oe

- 5. The D vision of the Court of. Appeals for. — :

the Third Cireuit ~:........ le SER. AREER ee 1)

' Reasons ror Grantixe THe Warr ....... prone iach 13

_ Coxciusion .......... eee Air ee 21

Appenprx:

Opinion ...,............. pesineeAicinaaicenacaincpedipeielaid Reeeliinis la

ji

Judgment ....:.............. ocnesenseneesccnsrnsensenseesdtgeenssenseecene 6a

<)

PAGE

Begnaud v.:Whité, 170 F. 2d 323; 327 (6 Cir. 1948)... 11

Drakes Bakeries Incorporated v. Local 50, American

Bakery & Confectionery Workers International,

AFL-CIO, et al, 196 F. Supp. 148 (S. DN. Y.,

1960), revs’d, 287 F. 2d 155 (2 Cir. 1961), previous

_op. withdrawn, aff'd, 294 °F. 2d°399, certiorari _

‘granted, U.S. , 82S. Ct. ae (Jan- — |

uarvy 22, SBN cnishieianastascaseupacalalatidsaiabadatieliaine . 10

Infernational Telephone.& Telegraph Corporation v./ .

« Local 400, 286 F. 2d 329 (3° Cir. 1960)... eee a,

nnedy V. Bennett, 261 F. 2d 20, 25.(8 Cir. 19% 58). 18 .

_Maryland Tel. Union v: Chésapeake & Potomac Tel. _ .. —

.Co., 187 F. Supp. 101 (D. Md. 1960)... Pe eee 15

Radio Corpordtion af America v. Association of Pro- . :

fessional Engineering Personnel et ‘al., 291 F. 2d .

105, 107 (3 Cir., 1961), certiorari denied, :

U.S - -, O28. Ct, 174; 7 L. Ed. 2d a

United - Steelic orkers v. American Manufacturing

Company, 263: U. B. SE4 (IDGD) ...icn-nodnvini..... coon 9,15

United Steelworkers v. Enterprise Wheel and-Car

Corporation, 363 U. S. 593 (1960)........... ssicnlcapntn ° 9,15

‘Umted Steelworkers v. Warrior i Gulf Navigation: '

Co., (363: U. S574 — Mined eSSN Ea se eieiall 3,9,10, 13,14, ~~:

: 15, 16,17, 20 .

Fell v. American Seating Co., 138 F. 2d 641 (2 Cir.

ii

Tas ie or Cases -Cit7Ep.

1943), revs’d, 322 U, 8.709 (198) enti -18

él

TABLE OF p Avrioniries. CrTED.

Federal Rules of Civil Procedure, ; Fig

98. U.S. C. A., rifle 56(é)............... 6 ae ES Se 9,3

Labor Management. Relations Act Section 301(a) ;

(Act of June 23; 1947, 61 Bist. 156), 29 U. 8. C.

SY set eine reer rye cate “See 2,7

N. J. S. 24 :16-53 (the Uniform. Dinlettnty Judg-

- nent Law) (Fy. 19246, © 140) inane aeceennntncienscone 3,7

‘United States Code, 28 §1254(1): ee 2.

IN THE

‘Sitting Court of the United States

-OcToser — 1961

Harris SrrucTURAL Sree, CoMPaNy, IXc., ——

oie : ate Pj - Petitioner,

a Se ae

' Unirep Sucactsunuee OF 27 AFL-C10, Loca ©682, -

and Usirep STEELWOR KEBs OF AMERIC a, AFL-CIO,

vd Respondent.

/——— r

PETITION FOR A WRIT OF CERTIORARI ‘TO

THE UNITED STATES COURT OF APPEALS -

FOR THe THIRD CIRCUIT.

“Petitioney’” Harris ‘Seed Steel ‘Compatiy, Inc.,

prays for, é writ of cettiorari to the United States Court

.- of Appeals for the Third Cirenit to review an- order o

that, éourt entered January 22, 1962. A certified copy °

otsthe record, printed helow i is filed herewith in ecordance

(ith Rule 31, Par. 2 of the “Rujes of sand Court.

Opinions Below. | © “sf

*“The opinion of the United’States: District Court for the

District of New Jersey (R. 67a-89a)' is unreported. The

opinion of the United States Court of Appeals for the

Third Cireuit is not reported at this printing and is —

- appended to this petition in the appendix at pp. la-5a.

1 Record references herein are to the Appendix in the Court of

_ Appeals below,

Jurisdiction to Review.

‘Whe « date of the order of the United States Court of

Appeals for the Third Circuit sought to be reviewed is

_ January 22, 1962. — - see at aes

The jurisdiction of this Court is invoked sie 28

eather art ett

i Is summary judgment possible where the court

below (App. infra, pp. Ta-5a) concludes that the only

evidence offered by both ‘parties has been ‘‘contradicted’’

_ and ‘‘the case was not one’ which could be disposed of |

properly on motion for mmary judgment . . 2's is this.

defect ever remedied and is ralle 56-(c) of the Federal Rules

of Civil Procedure and all case law interpretation thereof,

. thereby overridden by the Court’s conclusion that despite

a factual dispute, summary judgment may be affirmed’

because the ‘‘law in this case is‘so plain as to permit no-

altergative’’! : . 2

* 2. , Having directed the parties to proceed to arbitra-

‘ten: ca itp proper for the Court of Appeals to decide the

ques‘ton that the Union will offer,as the issue in that

arbitration and thus involve itself in\the merits of the

grievance contrary to the mole whey in United.

Steelworkers v. Warrior & Gulf Navigation Co., 363 U. S.

574 (1960) ?

Statutes and Contract Provisions Involved.

1. Section 301(a) of the Labor Management Relations

Act (Act of June.23, 1947, 61 Stat. 156), 29 U. 8. C. §185(a),

| provides i in pertinent part: .

“Suits for violation: of éontracts between an

eniployer cand a Jabor organization . .. may be

e broughk in any district court of the- United ‘States

having Jurisdiction of the parties, without respect

to the amount in cantroversy - without regard to

the citizenship of the patton:

2, N. 5:8. BA 46-53 (The Uniform Declaratory Judg-

ment Law) (L. 1924, ¢ 140) provides in pertinent part:

yi A person interested under a... written con-

_- traet . . . may have determined any ,question of

' construction or validity arising under the - ... con-

tract... and obtain a declaration of rights, statas

or other legdl relations thereunder.”

3s Fed. Rules Civ. Proc, rule 56(c), 28-U. S.C. AL,

- (Summary Judgment) provides in pertinent part:

“The judgment sought shall be rendered forth-

with if the pleadings, depositions, apd admissions: »

. on file together with the affidavits, if any, show that

there ix no genuine issue as to any material faet and

d4hat the moving party is entitled 4 a judgment as

a matter of law.’

4. Relevant provisions of the collective bargaining

agreement (R. 23a) are set forth at spits eae ete in

‘the body of this pefition. s

‘It has been ansumes, without deciding. by both courts below

and by both parties that an interpretation of such section inclades

jurisdiction in a suit for a declaratory judgment of a collective

bargaining ggreement—-«.f. Radio Corporation of America ©. Asso-

. ciation af Professional Enginerring Versonnd et al, 291 F. 2d 105,

107. ¢ 3 Cir.. 1961). certiorari denied. C.8.. : m § ws

174, 7 L, Ed. 24 93, and eases cited therein.

» ae <a

_ Statement.

This case is not a re-hash of arbitrability. It began as_

- a suit by an employer to determine whether a grievance

was arbitrable under a collective bargaining agreement. It

now presents a question of a-serious dev iation by the Court

of Appeals in the use of summary judgment—whether a

court can conclude, on the ote hand, that the facts are con-

_ tradictory, and, on the other hand, deny this petitioner a

hearing by grating summary judgment, -because of the

_ eourt’s interpretation of a substantive Federal policy in

the’ field of labor law expressed by this ‘Court. It is sub-

mitted that the court below disregarded established princi-

-ples of summary judgment; the Federal Rules of Civil Pro-

_ cedure and case law in each of the Circuits. . The petitioner

contends that on the basis of the opinion of the eburt, below,

‘summary judgment is not possible in this case. Further-

more, the petitioner contends that the court below has

-. erroneously involved itself in the merits of the ST

contrary to the/law of this Court.

_.. Harris Structural Steel Company, Inc., herein called

the _**Company ” and United Steelworkers of America, -

AFL-CIO, Local 3682, and United: ‘Steelworke” » ‘of America,

AFL-CIO, herein called. the ‘‘Union,’’ are parties to a col-

lective bargaining agreement’ entered into on March 14,

1960, which agreement was in effect during December, 1960,

_ and January, 1961, the date of the subject ‘grievance. It

wil! not expire until July 31, 1962 (R. 23a-24a).

The Company has gratuitously for the past twelve

years, at Christmas fime, as a humanitarian gesture and

in the spirit of the season, made Christmas’ gifts in vary--

ing amounts to every one of its’ employees, including all

_ individuals not covered by the said collective bargaining

after ‘*.:. . the request was abandoned by the Union’

¢:

5-

agreement, thongh ere! no obligation ‘to dg so. The eift

‘was a paymeént of money in accordance with a formula,

w hich, although it liad been changed over: the years, was

computed in 1959 as set forth in the pleadings (R. 47a).

There is no’ ‘mention whatever of such gift’in the collective

bargainiyg agreement. ° ,

The question of payment of the Christmas gift was s the

subject of collective bargaining at the last two. contrac} \,

negotiations: During - negotiations in August, 1959, the

Union requested that the payment’ of this money be made

a part of the collective bargaining agreement, but such

request was flatly refused by. the, Company and the gift

was excluded from the agreement ( R. 18a, 19a; 25a, 30a,

31a, 39a, 41a-46a). - : G- o

‘ .In and during Deceniber, 1960, the Company again vol-

untarily made such gifts, though in a _proportionately

decréased amount, to every one of its émployees. The

ainount paid was exdctly one-half of the amount paid in

1959 as outlined in the formula heretofore referred to. (R.

7a). Neg

Thereafter, on or about January 3, 1961, the Union

submitted a grievance to the Company as follows:

, r “4 55

_**Since the Christmas gift-has always been con-

-* Sidered as part of our wage edrnings, we, the officers

of Local Union 3682, United Steelworkers of Amer-

ica, request that’ the Gompany immediately give full

payment ofthe Christmas Gift Plan that ‘has been in

effect for many years and allocated according toa

"+ SBite affidavits submitted by” the ‘Company stated : "tthe

Christmas gift} is a voluntary act by the Company hitb the

sole discretion of the principals of the Company’’ and ‘*.*.-. this

‘Christmas gift could not be made part of the labor agreeme nt

because there was no guarentee ghat it would be continued’” and

that it could not be promised beeatise it was?*. . . botl ulative

and undetermined until Dege amber in each vear”’ (R. There-

a 40a).

a cette Se ne

stipulated formula to all of the employees of the

"te Harris Structural Steel Company for the year 1960. __

The Conipany denied hi pinnncs sp further refused

to: proceed to arbitration since isSué of the payment of such

gift had been disposed of at contract negotiations by not

making it part of the contract. -

The coilective bar gaining agreement meaniibos for the

adjustment of certain’ grievances, as follows:

ARTICLE VII

4

‘ADJUSTMENT OF GiriEVANCES

‘Section 1, Should differences arise beween the

Company and the Union or between the Company and

any. of its employees as to the meaning and applica-

tion of the provisions of this agreement or as to any.

question relating. to the wages, hours of work and

other conditions of employment of any. employee

there shall be no’ suspension, of work on account of

such differences, but an earnest effort shall be made

to settle them, promptly and in accordanice with the

provisions of this agreement and in the manner here-

inafter set forth.’’ 7

: Nee © :

On or about January 19,.1961, the Union unilaterally?

requested arbitration’ of. the grievance by the Amerfean

Arhitration. Association, 477 Madison Avenue, New. York

22,. NewYork. The Company in turn informed the American

Arbitration Association and the Union by letter dated

January 24, 1961, that the matter was not: arbitrable (R. 7a).

Notwithstanding all of this, the Union indicated that it

would continue to seek arbitration. ; .

-1. The Complaint, the Granting of a Stay of Arbi-

tration, Removal to the District Court, Answer’

~ and Counterclaim.

’ On February 16, 1961, the Company filed a complaint (It.

3a-13a) in the Superior Court of New Jersey, Law Division,

requesting: - judgment in accordance with N. J. S. 2A 316-50

ef seq. (The Uniform Declaratory Judgment Law), ‘seeking

a declaration of its rights under the collective bargaining

agreement with the Union atid specifically asking for a

determinationsby that Court that the matter in céntroversy

“was one not bithin the scope ofthe collective bargaining

agreement, and was, therefore not arbitrable. At the same

time the Company sought and was granted ad interim relief

in the nature of a temporary stay of arbitration, permitting

the matter to be decided by the State Court.

On March 3, 1961, the Union filed a petition for*removal

of the action fromthe Superior Court of New Jersey, Law

Division; to the United States District Court for the District

of New Jersey, notifying the Company of its action (R. Ia).

This was still by the Union on the basis of Section

301 (a) of the. Labor Beep! Relations Act (Act of

June 23, 1947, 61 Stat. 156) 29 U.S. ¢C. §185(a), {set forth

infra p. 2) without objection by the Company. The Union -

filed its answer and a counterclaim by which it sought aw

order compelling the Company to arbitrate the grievance

(R.14a-25a). The gem pany filed an answer to suc h counter-_

claim (R. 26a-28a). The stay of arbitration. was continued

by the consent of counsel for the parties.

2. The Motions for. Summary Judgment.

At the oral argument on the ‘Company’ $ motion for a

stay of arbitration on April 3, 1961, before the District

Court Judge, The Honorable Arthur S. Lane, U SDJ, it was

* concluded by the Court and the parties that summary judg-

af

_ ment would be an expeditious manner of disposing of the

ease and the Court granted leave to file briefs, affidavits,

counteraffidavits and exhibits in support of the motions for

summary judgment. The, matter was further stayed by

mutual agreement pending disposition of the motions.

The Union filed its motion demanding summary. judg- -

ment in its favor upon the complaint and the counterclaim

“based upon the pleadings, affidavits, ete. now-on file and

such other affidavits as-may be. hereafter filed’* ( R. 28a)..

- Supplemental affidavits were submitted (R. 29a-31a). The

Company filed its motion demanding summary judgment

in its favor upon its complaint and for a dismissal of the

Union’s counterclaim ‘‘based upon the pleadings, affidavits,

‘exhibits and addenda thereto now on file and such other

affidavits -as may be hereafter filed’’ (R. 34a). Supple-

mental affidavits were filed and, in the language of the

Court of Appeals in its opinion (App., infra; p. da) ‘‘exten-

sive documentary evidence’’ was. submitted by the Com-

pany (R. 35a-66a). Yet no answering affidav its were

filed by the Union. ‘Presumably, no facts fa in dispute."

3. The Decision of the District Court.

Both motions for summary judgment were argued on.

-- May 1, 1961 (R. 67a-89a) and at the close of oral argument

on the same date, the Court ‘eonchided | “that the matter

must go to arbitration’? (R. 87a). It'was not w ‘ithout” res-

ervation on the Court’s part, however.”

. At least this is what everyone thought. The District Court ~

Judge so coricluded at the hearing (R. 70a); the judgment of the

Court so concluded (R. 90a). There were no protestations by

counsel for fhe Union in any of its affidavits or at oral argument

on the motion—none, until the Union’s. Answering ‘Brief in the

Court of Appeals when, for the first time, the Union re futgd the

‘factual posture of the case.

2“*The Court: Gentlémen, I would nt Jéss than frank with vou

if I didn’t say when I first looked at this file and when I first

Ben oh,

On May 12, 1961, the District Court entered an order

(R. 90a) « rs

<i h ..conelading from the pleadings, affidavits

and ‘other papers on file that there’ is. no ‘genuine

issne as to any material fact and that ‘the plaintiff

[Company] is not entitled to summary judgment in

its favor on its complaint as a matter of law, and

that the remaining defendants [Uniens] are entitled

> to-a summary judgment as a matter of law in their

favor both on the complaint and on the counter-

Sit... .

,

e

4. The Company’s Appeal to the United States

Court of Appeals for the Third Circuit.

The cause was appealed to the United States Court of -

Appeals for the*Third Circuit on May 22, 1961 (R. 92a):

looked at these cases (34) and first considered this matter, that I

. thought that the company would prevail in this court. However,

I did-have great difficulty in interpreting some of these deeisions,

and T have spent considerable time on it since my first endeavor.

T am now satisfied that my firstsimpression was an erroneous one

under these dectsions,-and that under these three compaftion deci- ”

sions. Warrior { United Steelworkers v. Warrior & Gulf Navigation

('o., 363 U.S. 574 (1960) 1 and the two companions in 363 U. 8.

(United Stectworkers v. American Manufacturing Company, 363

U.S. 564 (1960); Fnifed Steelworkers vy Enterprise Wheel and

Car Corporation, 363 U.S. 593 (1960) | and under International

Tclephone & Telegraph Corporation v. Local £00 in 286 F. 2d at

page 329 [3 Cir. 1960). T am satisfied from these decisions that

unless when vou have, as we have here, a no strike, broad no strike,

no lockout and arbitration, grievance and arbitration, that unless—-

and a clause such I have, already reall at page 17, which says,

‘*Should any differences arise’’—and so forth, as to any question |

relating to wages, hours of work, and so forth, that when we have

the situation, as we do here. and thére is no specific exclusion of

the topie for subject matter in the contract, then T must rule that

the matter must go to arbitrativn. ,

Now, I do so as a matter of fact and ‘a matter of law with the

hope, and the thought, too, that you will unquestionably take this

to the Court of Appeals. T think the law on this matter needs (35) -

further clarification anda decision or two at that level or higher

up that is clear. and a good many of us when we face these issues

will have less difficulty than we are ‘now having with it.”’ (R. 87a)

et —_

*

10.

On the same day, the Company made a motion in the Court. ;

of Appeals for a stay of arbitration pending appeal.

On June 6, 1961, after reviewing the transcript below,

the memoranda of both counsel and, after oral argument,

the Court,of Appeals granted the Company’s motion for

such a stay pending disposition of the appeal (R. 96a),

which stay is still in effect.’ | |

On appeal, the Company presenicd an argument. which

urged that the District Court had erred in its application

of the law to the undisputed facts and the judgment should,

therefore, be reversed. -(App., infra, p. 4a). The Company

argued that on the basis of United Steelworkers v. Warrior

€& Gulf Navigation ’Co., 363 U. S. 574, 585 (1960), despite

the absence of a specific. exclusion, the Company had sub-

mitted adequate, uncontroverted ‘‘forceful evidence”’ of an

intention td exclude the- subject matter of the grievance

from the collective bargaining agreement.

‘This ‘‘forceful evidence’? was so detrimental to the

Union’s appeal that it denied the existence of it. For the

first time, on appeal, in the Union’s Answering Brief, the -

‘Union denied that the facts were not in dispute and, indeed,

——

urged that the facts were in dispute. .The Company, in its

Reply Brief, urged the court below not to allow the Union

to refute. the factual situation, or allegations and conten-

_' This is of some signifieance. in view of the fact that Cireuit

‘Courts have almost uniformly denied such stays c.f., Drakes _.

Bakeries Incorporated v. Local 50, Americen Bakery & Conf ction.

ery Workers International, AFL-CIO, et al, 196 FP. Supp. 148

(S. D. N. Y., 1960), revs’d, 287 F. 2d 155 (2 Cir1961), previous

op. withdrawn, aff'd, 294 F. 2d 399, certiorari granted,

U. S. “, 82S. Ct. 480 (January 22, 1962), and the United

States Court of Appeals for the Third Circuit had denied similar

applications for a stay of arbitration on previous oceasiorg. The

Court’s action evidenced an awareness of the District Court’s

comments relative to the state of the law (I. 87a: quoted p. 9,

infra) and a sincere effort to clarify this field of labor law.

\ . . - i

we

-tions with respect thereto, in the Court " Appeals to suit

its conv enience. :

At the oral argument, counsel for the Company acknowl-

edged that the Union had contended on appeal that the

facts were in ‘dispute. - Counsel further urged the court

below that if the court did-find that the facts were in dis-.

pute, then the Union was not entitled to summary judg-

ment on its counterclaim and, of course, the C ompany was

not entitled to summary judgment on its complaint, either.

Counsel urged that in such an instance, the matter could

not properly be disposed of on motion for: ‘summary judg-

ifient and should be returned to the District Court for a

hearing on the complaint for a declaratory judgment and

for a hearing on the Union’s counterclaim:

The Company provided thé court with an extensive

_ analysis of the Warrior decision and pointed out that this

Court had allowed for submission of ‘forceful evidence’’

of an intention to exclude a matter from arbitration, (363

U.S. at page 585), The Company presented such eyidence; ae

_presumably—thcontroverted. It further outlined the law

applicable to summary judgment, in the event the Court

should conclude; itself, that the facts were in dispute.

"5. The Decision of the Court of Appeals for the

* Third Circuit.

In spite of such established principles, the Court of

Appeals came to an anomalous conclusion. It stated, in,

part, that,

“Allegations of ‘the affidavits filed on behalf of

«the. Cotipany are contradicted by an affidavit ‘filed

'This j 's not ine onsistent, “The fact that both parties make

motions for sammary “judement, and each contends in support of

-his respective nfotion that no genuine issue of facet e Xists. does not

_ require the Court to rule that na tag issue exists.’’ Begnaud vy,

White, 170 F. 2d 323, 327, (6 Cir., 1948).

»

stated:

ie : | iid

by a staff representative of the International. The

extensive documentary evidence offered by the Com- °

ae pany is not decisive*’; (App., nen, p. ”

It is: seni that this finding in the Court should

have -been déterminitive of the appeal and good. practice

and all case law required that the matter be renianded to.

the District Court for a hearing, at this point. >

Instead of this, however, the Court went further and

ad - °

‘*Were it not for the state’ of the Taw we would

_ Say that the case was not one which could be dis-

* posed of properly on motion for summary judgment

but we think that the law in this-case is so plain as

to permit ho alternative”. ( App. + infra, p. *)

This was ov erreaching and constitutes one of the errors

which. is the. basis for this appeal. The application of

any substantive law, overriding the principles of summary

judgment, once the Court finds that there is a contradiction

in the evidence, goes beyond existing law and is a fortula-

tion 6f*new law.. The Court recognized that but for its

interpretation of the state of the substantive law, the case

could not be disposed of on motion for-summary judgment.

Of what consequence, then, is any substantive law once a

‘factual dispute exists, As will be pojnted out, this is

contrary to the law of this Court..

In coneluding thatthe grievance for a bigger Christmas

gift should be arbitrated without affording thé Company

the benefit of a hearing, the Court did not just ‘conclude,

‘vo to arbitration’’.. It went.much further and proceeded

to equate ‘‘Christinas gift’ with ‘‘wages"’ (an issue prop-

_ erly for an arbitrator) afd stated (App., infra, p. 4a):

‘*Five points are very clear: first, the Company

recognizes the Union as & exclusiy e representative

\

: 13 at

of the eriployees in the bargaining unit in respect

to rates of pay and wages; ... third, the grievance

and arbitration article of the agreement ‘expressly

includes any question relating to wages, . fourth,

the sunts granted, whether given ®r aids to the

employees at or near the Christmas season, were’

estimated-in terms of wages ; ry A

’

And further (App., infra, Pp. 5a)

‘Wages are specifically included in the arbitra-

tion arti¢le of the collectiye bargaining agreement ;

the additional money graptsar€ calculated in terms

< of wages... > oh ag. |

ee: constitutes th» whe error ah i is the

hasis, for this appeal.

- The Court thus degided the very sini that the

Cnion will offer as the issue at arbitration—whether the

“Christmas gift has become part »f the wage structure.

This was without qualification or independent judgment

and was concluded, in the Ceurt’s owft words, on-the basis

of *‘extensive documentary evidence’? which “tis not deci-

sive’ (App. infra, p. 44) and on affidavits which are “*con-

tradicted® * (App., infra, p. 4a).

Reasons for Granting the Writ.

1. The decision below one be Solin because it

erroneously affirmed an order of summary Judgment after

concluding indepe ndently that The affidavits and other evi-.

dence whic h the parties had, submitted relating to the

material issue of the ease were contradictory. ;

An anlysis of all of the proof offered by both the Com-

pany and the Union in the pleadings, and by affidavits and

*

7

Py -

14

the addenda thereto on the motion for. site judgment

reveals that there is no material issue of fact that is in

dispute, excepting the intention to exclude the subject of |

a Christmas ift: from the collective bargaining agreement.

This was acknow ledged by ime court below (App., infra,

p. 2a).

The intention of the parties with respect to the Thrist-—

mas gift is surely. ‘‘material’’. This Conrt has sdid, *‘In

the absence of any express provision excliding a particular |

grievance from arbitration, we think only the most forceful

evidence of a purpose to exclude the claim from arbitration

can prevail ...°°. United Steelw ork: ers v. Warrior & Gulf

‘Navigation C. 363.U. 8.-574, 585 (1960). The granting

‘Can order of summary judgment in the light ‘of the exist-

ence of a dispute | as to only faéts in issue is “clearly error. —

Does it now become the law that if @ court is convinced |

that a moving or defending party is right or wrong, it can

so find, save the’ conclusion that its opinion is based en

nee more than the self serving declaration that the law

is “plain”? to the court?” To what facts is ‘the“court apply--

ing its conclusion of law, if those facts are in dispute?

What har sens to the rights of ‘the parties in the particular |

case? When does a party have the opportunity to show

toa trial court the facts which the upper court say rs pare

contradicted and. which constitute ‘the gravamen of fhe

; complaint and counterclaim? Does substantive law, no

matter how “plain,” clear or ey en ov erwhelming it is to

a particular court,. override principles of summary judg-

nient that a party has relied upon? 2 eS

These are serious questions of far reac hing and reeur-

. Ting significance net only to this petitioner but to any other

litigant who relies on’ summary judgment ; as an expeditions

method of applying existing law to established facts.

: 4B

The “se whieh i is “plain” to the court below and. which

compelled. it to disregard the established summary judg-

ment procedure is’ contained in the. three momentous

~ decisions in the field of iabor arbitration filed in June,

1960. United Steelworkers of America y. Americ ‘an Manu-

facturing Company, 363 U. S. 564 (1960); United Steel-

workers of America vy. Enterprise, Wheel and Car Cor-

‘poration, 363 U.S. 593 (1960); and Uniled Steélworke TS

*

of America vy. Warrior & Gulf Navigation € ompany, 363°

U.S. 574 (1960). Since that. tine; both labor and manage-

meuut have had the positive benefit of what was said in

those opinions.

Although’ the Supreme Court. stated that a Specific

exclusion ina labor agreement would relieve a party of the

obligation to arbitrate, it went further and said that “court

would also consider ‘forceful evidence” ofan intention to

exclude, United Stecliorkers of America y. Warrior a Gulf

Navigation Co., 363 U. S. O74, O85 (1960). This ac know ledg-

ment by the Court that something other than a specific, .

¢lear and unequivece | written exclusion would be colsid-

ered, lias produced much controversy and is, in faet, the

su! hject of this very actign.. i ;

It has gotten to the point whe ‘re the District Court

Judges have abandoned all synthesis in favor of @doctrine'

which may or may not. exist. Maryland Fel. Union vy.

( thesape aki d Potomac Tel. Co., 187 F. Supp. 101 (D. Md...

1960). Indeed, in the ease at bar, the Distriet Court Judge’

expressed a hope for a clarification (R. S7a), infra, p.e8,

In the meanwhile, Companies and U nivns continue to be

¢harged with negotiating und administering: ‘collective bar-

gaining agreements, If the only way to exclude a thatter

from arbitration is by means Of a specific Written -exelusion,

then so be it! Up to this point this Court has nor stated this ..

to be the law. When a Court of Appeals such as’ the-court

16

below provides an interpretation that modifies and even.

supplants the procedural rules for summary judgment, then

in the interests of cousistency and certainty and perhaps

_ even toward the elimination of needless suits, this Court -

should so state such a change. W ith the presence of lan-—

guage in the existing opinions calculated to encourage tlie

review ofg' ‘forceful evidence”’ of an intention or purpose

to exclude, all parties have relied on their right to show this

intention. If this right is to be supplanted by an overriding

public policy at least’in the enforcement of labor agreements

where the parties haye yoluntarily agreed to au arlatration

procedure, then this Vourt. would advance labor manage-

ment relationsHips ten fold by saying 80.

- In a zeal to implement a policy that the Supreme Court

has expressed in a field of substantive law, the lower court

in this case has unfortunate ‘ly cast doubt upon the f unction

and utility of summary ‘judgment.

Even with respect to’ the substantive law ¢ xpressed by

this Court in its opinion in the Warrior case, this Court. did

not say that arbitration is commanded in ev ery instance that

a griev ance is filed. Nor has this Court, or any other. court

_ever held that, sunimary judgment will lie as a procedural

" devi ice where there is a genuine issue as to a material fact.

Surely, the Warrior. case has not changed this. But. tlie’

essence of the lower court opinion is that even where there

is a faetval dispute, this is of no consequence or significance

because of the lower court’s interpretation of this Court’s

language relative to arbitration in the Warrior case,

In every other case before this Court involving the arbi-

trability of a grievance under a collective bargaining aree-

ment, including the W: arrior case itself, there was vither ;

“hearing by the District Court or complete agreement on ths

facts. In this case, the petitioner has not had the benefit

of either of them. If was surely never this Court’s intention

. ng ‘ . 17 : F Py

to clothe the Federal Policy expressed j in W arrior in favor of -

the enforcement of labor agreement with a mantle which

shrouds the Federal Rules of Civil L ocedure, | Nor could

it ever have been the intention to app this “policy; no mat?

ter how ** plain” or compelling to the detriment o: fair play

and the rights of the litigants, all in the ifiterests of achic v-

ing a desired result—arbitration.

This is not just an appeal of a Compatiy who origi-.

nally sought a declaratory judgment secking to determine

whether the parties*intended to exclude a particular sub-

Ject from the collective bargaining agrecgievt. It is an

appeal where both parties relied on summary, judgment

because the facts were not in dispute. Every one of thie

facts each party offered related to the material issue of the

suit, the whole reason for the -contgoversy—the ** forceful °

evidence’’ of the intention to exelide.¢ If the lower court

’ Mad felt that the andisputed facts relating to the contractual.

lang: ve and the history of the parties relationship were

ene! |) .or an unequivocal summary judgment, it would

have vo stated: Instead, it found that the affidavi its contain-

ing all the facts, affidavits of the Union in ‘orporating its

answer and counterclaim by reference (R. 25a, 30a, ola)

were contradicted, The lower coprt would not have allowed ,

summary judement, had it not been moved by the language

m Warrior (App. infra, p. gh . .

If,'as the Court of Appeals has found, the facts are in

dispute, then the Company is entitled” to a hearing on those’

. facts, at the very least. —

It is a well settled rule that eross-motions for summary

judgment do not warrant the court in granting summary

_ Judgment unless one of the moving parties is entitled to

judgment “as a matter of law upon faets’ that are not

genginely disputed. . There are similar state nents through-

out Abe case law that suf.mary jadgment cannot be granted

?

?

“ 6

.

re 18°.” 7

. where the slightest donbt remains. Such questions rarely

‘reach this“‘ourt because of the clarity of the deeisions: in

- the Circuits. ‘‘On motion for summary judgment, where

the facts are in dispute, a jndgment ean properly be entered

against the plaintiff only if, on. the undisputed facts, he.

has no'valid claim; if, then, any fact asserted by the plain-

tiff is contradicted by the defendant, the facts as stated

by the plaintiff must, on such motion, bé taken as true.’’

Zeil.v. American Seating Co , 138 F. 2d 641 (2 Cir. 1943),

revsd, 322 U.S, 709° (1944), " .

' The issue is not circumvented by. a conclusion that the

law is ‘‘plain’’ for, ‘‘a surmise, no matter. how reasdnable,

that a party ‘is unlikely fro prevail upon a trial, is not,a

~ sufficient basis for refusing him his da: in edsurt wth reafhet

to issues which are not shown to be sham, friv olous, or so

unsubstantial that it would be futile to try them’ [citations .

—- Kennedy v. Bennett, 261 P. 2d 20, 25 ode Cir.

1958). t+ -

° ecaail in keeping with previous expressions by this.

Court, views this petition for a writ of certiorari not as a

means of telling this Court’ what the law is or how many

hundred cases exist, but a’ a means of. pointing out that

‘there has been a deviation and it is of such importance and

_ signifieance to warrant review by this Court.

Apart from formulating a new concept of summary

judgment, the opinion of the court below iu the case at, har |

will unquestionably create additional oblems in a field

of law where labor, management, _arbitrators, writers, and

lower court judges are looking to this: Court for guidance.

‘The opinion of the court below means that every fime’ a’

.court thinks theJaw i is “plain”? enough, the desired judicial

result can. be achieved, summary judgment find all other

certainty, notwithstanding. This creates a-new. theory of

2 . ms : J

/

% ; {

eo .*.

19 4

“law never expressed by this Court, never enacted into: the

Federal Rules of Civil Proeédure and is in conflict with

each and every Circuit in the judicial system. The deci

‘sion of the court Below i is in conflict with these decisions.

This’ is not.right. For this reason alone, this Court

should reverse the decision of the court be ‘low and remand

Qo

——

_ to the District Court for a trial of the-trotes. —

cy,

2 The decision of the court ‘Soliegk ‘should he rev rlewed

- because it erroneously has des ided the very question that

the Union will offer as the issue at- arbitration, ‘and, in’

equating ‘Christmas gift’’ to **wages"’, it has, decided

the issue on the merits and prejudged the arbitration, .

eontrary to the law of this Court and to the ‘detriment and.

prejudice of the petitioner.

The Company did not ask the court below for a deter-

mination that the Christmas gift was not a part of wages,

for to do so ‘would be to request a determination of the

very issue sought to be, decided by the arbitrator. Instead,

the Company asked the Court to view the evidence and |

conclude that there was forceful ey idence of an intetition

OF purpose to exclude ‘the subject. matter of the grievance

from the collective bargaining agreement.

Counsel for the Company pointed out at oral argument

in the’ District Court be low that even an attempt to jam .

“bonus” or “Christmas gift’? into wages’? would be. to”

decide the i issue (R. 70a). ;

Yet the Court of Appeals: not only did so and ited

the issue which would ultimately be decided by the arbi- -

. trator but went’ even further than either party had ever

suggested, basing its decision on five points, three of which

equated the. Christmas gift to “wages”? to justify arbi-*

tration (supra, p. 12) ‘

20

: The court made no qualification, nor was there any

indication that this was its own independent expression.

directing’ arbitration, such as it has on prior occasions:!

The extent to which it became involved 1 in the issue belies 7

‘ -

such an approach.

7 It*should he considered that all of these’ conclusions

flowed from facts. which were: ‘‘contradicted’’, and, -in so

concluding, the Court has literally concluded the issue for

the petitioner. Parenthetically, one of the defenses at the.

arbitration would have been that the payment of a gift was

not related to or equated with wages. __ :

Onewof the salient points of the W arrior decision was -

that it is not the function of the-eourt to concern itself with

' the merits of p,sriev anee, Yef this is just what the court

below did and the Union will unquestionably rely upon its

interpretation. ~ To have the issue prejudged without the

benefit of a hearing, a brief, or oral argument, (for these

points were not urged on appeal) has so prejudiced the

petitioner and has, so vitiated the letter and spirit of this

Court’s opinions inthe Warrior case as to w arrant reversal

for a hearing in the District Court. If the opinion of the

court below is allowed to stand, a fair and impartial arbi-

tration has been foreclosed. ,

k “We vonelude, therefore, that the present crievance is a dis-

pute eoncerning the interpretation of a labor contract and is

‘covered by the contraetual undertaking of the parties to arbitrate

meh disputes. We re peat that neither this holding | nor anything

suid in this opinion is intended to prejudge in anv way the merits

of the dispute which the arbitrator will be: asked: to decide”, per

Cireuit Judge Hastie, Radio Corporation of America v. Association =o

of Professional Engineering Personnel, et-al., 291 F. 24.105, 110

(% Cir., 1961), certiorari denied, . US: , 82S. Ct. 174,

7 OL. Ed. 24-93 “November 6, 1961).

7

A |

*. Conclusion.

Without attempting to: be philosophical about it, it is -

well understood and a matter ‘of. recerd that a writ of»

certiorari is seldém granted. The sheer volume of cases

precludes any other ‘approach. But what is the remedy of

a petitioner when a Court of Appeals allows its considera-

tion of an area 6f substantive labor law to:supplant the

Rules on summary judgment and involves itself in the

merits of a grievance to the extent‘that it decides the issue

that the Union will offer at arbitration? [t is respectfully

spbmitted that this Court should con-ider the correction of

those errors and, for: the reasons set Forth herein, grant

this petition for a writ of certiorari.

Respectfully submitted,

Wittram W. TLAnIcan,

873 Sebring Avenue,

Bound Brook, New Jersey,

by,

M. Harvey Smépiey,

101 Park Avenye, .

New York, New York. .

Counsel for Petitioner,

la .

APPENDIX.

Opinion.

=

. . :

UN ITED STATES COURT OF APP EALS,

Four THE Trurp Crrcv IT.

‘No. 13,626.

Harris StructuraL Sree. Company, Inc., a Corporation of

‘the State of New York Authorized to Do Business i in the

State of New Jersey,

; Appeilant,.

@. |

©

Uxitep STEELWORKERS OF Artenice, a, AFL-CIO, Locat 3682 2.

and ‘Unirep Sreeiworkers or America, AFL-CIO, an

Unincorporated Association.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW JERSEY

Argued November 3,.1961

Before Bices, Chief Judge, and M« ‘Lav GHLIN and ForMan,

Circuit Judges. ‘

OPINION OF THE COURT

(Filed January 22, 1962)

|

1

-

bed

By Bias, Chief Judge.

Invoking the aid of the New Jersey Uniform Declara-.

tory Judgments Act, 2A N.J.S. A. 16-50 et seq.,:-the plaintiff

appellant, Harris Structural Steel Company, Inc.,-sued the

defendant-appellee, United Steelworkers of America, AF'L-

| Bead aN, 2X

CIO, Local 3682, and certain union officers in the Superior

Court of Middlesex County, New Jersey,- secking to have a

grievance resulting from a. démand of members of the

Local for ‘‘Christmas gifts’’, in an amount and of a nature

explained hereinafter, declared to be outside the scope of a

collective bargaining agreement entered into by the Harris

Company and the United Steelworkers of America, AFL-

CIO, the Intérnational Union, and therefore ‘outside the’

arbitration provisions of the agreement. ae

The defendants pétitioned the court below to rémove

the cage basing federal jurisdiction on Section 301 of the

Labor Management Relations Act of 1947, 29 U: S. C. A.

§185, and removal was effected.!. The same was decided on

a motion for summary judgment made by the defendants.

‘The court delivered an oral opinion, and— judgment. was.

entered dismissing the complaint on the merits and in favor

of the defendants on their counterclaim. Arbitration of the

grievance was ordered. The following operative facts, we

believe, cannot be disputed.

Since 1946 the International Union has been and still

is the certified collective bargaining agent of the produe-

tion and maintenance employees of the Harris Company..

Since 1946 the International has negotiated collective bar-

gaining agreements with that Company. On March 14, 1960, °

the Company entered into a new collective bargaining agree-

_ment with the International, This agreement was in effect

during December 1960 and January 1961 and will not expire

until Jul: ‘31, 1962. ;

. Article T, Section 1 of the 1960 collective bargaining

agreemenf between the Company and United Steelworkers

of America, AFL-CIO, provides: ‘The Company reeog-

nizes the Union as the exelusive representative of all the

Employees for the’ purpose of collective ‘bargaining in

respect to rates of pay, wages, hours of employment or

other conditions of ra. ails

1An answer aha t counterclaim and affidavits were fled. The

court beiow struck certain individual defendants, officers of the .

Local, from the record and ordered the International Wnhion.

United Steelworkers of America, AFL-CIO, added to the record

as a party defendant. -

3a

.Article VII of the agreement states: **Adjustment of

-Grievances. Section 1. Should differeuces arise between

the Company and the Union or between the C ompany and

any of its employees as to the meaning and gpptreationmot

the provisions of this agreemeut or as: to any. question re-

lating to.the wages, hours of work and other conditions of

einployment of any employee there ghall be no suspension

of work on account of such differences, but an earnest -+

effort shail be made to settie them promptly and i in aceord-

ance with the prov isious of this: agreement and in the man-

ner hereinafter set forth.” Step J of Article VIL provides:

“In the event the dispute shall “not have ,been satis-

factorily settled, the matter shall be appealed to the Ameri-

can Arbitration Association, The final decision of the

Arbitvator designated by the sald Association and. ae-

cepted by the Company and the Union shall be. binding.” -

Section 3 of Article VII states : “During the term of

this agreement neitherthe Uhion nor any employee shall

(a) engage in or in any way encourage or sanction any

strike or other action which shall interrupt or interfere

with work or production at-any ofthe shops or (b) prevent

or attempt to prevent the access of Employees to any of the

shops. During the-term of this agreement the Company’

shall not engage in any lockout of employees at any of the

sshops. The C OnpAnY may suspend and later discharge any

Hmphoyees who shall violate any provision of this Section.’

In every year since 146, in the period just before

Christmas, the Company has granted to each employee in

" the bargaining unit an amount of money computed on the.

basis of days or hours/of pay, at the employee's rate of

pay, for each month or year of his serviee.. The reeord is

not tod clear ‘us to the precise rate at which this amount of

money was calculated but there is no room for doubt that

whatever the formula, the amounts were ealenlated in terms

of wages. In December 1960, howeévey, the Company tiade

a grant of money . in ia substantially reduced amount, —

approximately a0 of fhat made in December 1959, to each

employee in the bargaining unit. a

~~~ eniployées through the Unions; Cain tothe eontrary.Lhe- -.-

Unions insist that this grievance of the employees is sub- -

_ ject to arbitration under the collective barguining agree-

“ eo” * 4a ’

The’ present dispute between Harris Company, the

Local aud the International is narrow in scope. The Com-

* employees were given as Christmas gifts and-were not

Wages to which they were entitled. The Unions and the

ment and in particular under the provisions of Article VII

set out above. ‘the Couipany asserts that uncontroverted *

evidence demonstrates that the parties to the collective

bargaining agreement did not intend to include the subject

matter of a grievance such as this within the agreement

an. hence within the provision for arbitration. We have

* exainined thie record carefully. Allegations of the affidavits

filed on behalf of the Company are contradicted by an-

affidavit filed by a staff representative of the International.

The extensive documentary evidence offered by the Com-

pany is not decisive. Were it not for the state of the law -

we would say that the ¢ase was not one which could be

disposed of properly op motion for summary judgment

but we think that the law in this case is so plain as to

permit uo alteruative. . |

Five points: are very clear: first, the Company recog-

nizes the Uniow as the exclusive representative of the

employees in the bargaining unit in respect to rates of pay

“and wages; second, the issue of bonus payments is not

specifically excluded from the grievance provisions of the

collective bargaining agreement; third, the grievalce and -

arbitration article of the agreément expressly includes any

question relating to wages, in addition to ‘differences...

as to the meaning and application of the provisions of this

agreement”’; fourth, the sums granted; whether given or

paid, to the employees at or near the Christmas season,

were estimated in terms of ‘wages; and, fifth, the agreement

contains a no-strike provision, = - :

It follows that this case is ruled, as the court below

correctly indicated, by Textile Workers v. Lincoln Mills,

pany maintdins vigorously that jhe sulus* granted these -

( OP mem

nanan dation [S [Sew ‘lien: 201 offthe Labor Yanavement Relations Act]

; doepy more than copter jurisdiction in the federal courts ever

«

a)

.

5a

B98} od S. 48 (W597) and by U uited Steel W orkers of Amer-.

ica Vv. Warrior & Gulf Nevination (‘0,,. 363. U.S: 574, 578

41960), In Lineole Millx. 455, the Supreme, Court made it

clear that an **: acreenient ‘ arbitrate ¢rievance disputes

ix fhe quid pre que for an a sreeme nt net to strike.’ Mr.

Justice Doon alas stited: oe We Ie werd in thi I~ light? the legis-

labor organinstions. Wt expresses a federal police ‘y that fed-

eral courts should enforce these agreements on behalf -of.

or against Jaber organizations and that industrial peace

fan be best obtained only in that wav.’ See also United |

Steel Workers of America vo American Mtg. Co.. 362 U.S.

Hid, SGT (DoE,

Wages are specitieally included in the arbitration article

of the collective bareiain ing gureetent: the additional.

money grants are calenlated in ie rvs of waves and are not

specific ally excluded from the article. Mr. Justice Douglas.

stated in the Warrier opinion, 81: ‘Apart from matters

that the pairties shee ifieathy exetp der, call oof t)) eae ‘<tlons on

Which the parties disagree nust therefore eome within the

Seope of the grievance and arbitration provisions of the ebb

lective ibe TD eeatsie nt. The erie vation PE ceded ee ix, In othe ‘r

words. a part of the coutinions collective bargaining proe-

ess. Tt. rather than a strike. is the terminal point of a dis--

aereenent.”” The conelusjen is irresistible that the eriev

ance is arbitrable and that the court below was correct in

so holding. -The judement will be affirrned.

. *

* A True s'opy:

Teste:

Clerk of the I nited State s Court of Appeals”

for the Third ‘rcutt. :

_

‘ "; | 6a

* Judgment.

UNITED STATES COURT OF APPEALS,

For tae Tuirp (meu,

No. 13,626.

.

Harris Srrucrurat SreEL Company, lreya Corporation of

the State of New York authorized to do: business in the

‘. State of New Jersey, .

; Appellant,

vs.

Usitep STeeLworkers or America, AFL-CIO, Locat 3682,

and Usirep Sreetworkens oF America, AFL-(' 10, an

Unincorporated Association.

ON APPEAL FROM THEY VITED STATES DISTRICT COURT

FOR THE DISTRIC T, OF NEW JERSEY

Present: , |

Biceés, Chief Judge, and McLav GHLIN and ForMaN, Ciredi:

Judges,

JUDGMENT.

This cause came on to be heard on the record from the 7

U nited States District Court for the District of

New Jersey and was argued by counsel,

On considerajion whereof, it is now here ordered and

adjudged by this Court that the judgment of the said Dis-

trict Court in this case be, and the same is hereby affirmed,

with -costs. } | ,

; Attest: , a S ;

Ipa O. Creskorr, .

Pit : Clerk:

Jattuary 22, 1962.

7