# Petition for Writ of Certiorari — Adelman v. Paramount Pictures, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0190%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1962 - **Citation:** 369 U.S. 851 ## Text 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 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 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 ‘