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INTERNATIONAL UNION OF OP. ENG. v. MONSANTO CHEM. CO.

August 19, 1958

INTERNATIONAL UNION OF OPERATING ENGINEERS (AFL-CIO), LOCAL NO. 381, PLAINTIFF,
v.
MONSANTO CHEMICAL COMPANY, DEFENDANT.



The opinion of the court was delivered by: John E. Miller, District Judge.

On July 16, 1958, the plaintiff served and filed its motion for summary judgment in which it alleged that the pleadings, admissions on file, together with the affidavits attached to the motion, "show that there is no genuine issue as to any material facts and that this plaintiff is entitled to a judgment as a matter of law."

On August 8, 1958, the defendant served and filed its motion for summary judgment in which it alleged:

    "The complaint of the plaintiff, the answer of the
  defendant to that complaint, the reply of the
  plaintiff to the defendant's answer, the request for
  admissions herein filed by plaintiff, the defendant's
  response thereto, the affidavits in support of
  plaintiff's motion for summary judgment, and the
  affidavits filed by the defendant in support of its
  motion for summary judgment, which affidavits are
  attached hereto, show that there is no genuine issue
  as to any material fact, and that the defendant,
  Monsanto Chemical Company, is entitled to a judgment
  as a matter of law."

The parties have served and filed written briefs and arguments in support of their respective motions, and the court has considered the briefs of the parties along with the entire record, and the motions are now ready for disposition.

The plaintiff is a labor union affiliated with AFL-CIO, and is the bargaining agent for certain of the employees of the defendant at its refinery at El Dorado, Arkansas. The defendant is a foreign corporation engaged in business in the State of Arkansas in the City of El Dorado within the Western District of Arkansas.

Article I of the contract between plaintiff and defendant reads as follows:

    "The Company hereby recognizes the Union as
  exclusive representative of all employees in the
  following described bargaining unit, towit:
    "All employees of Monsanto Chemical Company (Lion
  Oil Company Division) in its El Dorado refinery
  except chemists, supervisors, foremen, armed guards,
  office and engineering personnel, and telephone
  operators, for the purpose of collective bargaining
  with the Company with respect to wages, hours, and
  other conditions of employment."

Section 1 of Article VII of the Agreement provides:

"Section 1. Routine Submission.

    "Any grievance or dispute arising out of the
  application of this agreement shall be governed in
  their manner of settlement by the terms of the
  agreement, according to the following procedure:
    "(a) The individual employee, a group of employees,
  a steward, or the Union shall make a complaint orally
  to the immediate foreman of the department in which
  the grievance occurred. Only the immediate foreman
  shall discuss the grievance with an individual
  employee or a group of employees as a representative
  of the Company.
    "(b) If the grievance is not satisfactorily
  adjusted by the Foreman's answer, it shall be
  referred to the Workmen's Committee. If the Workmen's
  Committee feels that the grievance has merit, the
  matter shall be reduced to writing, in duplicate
  signed by the employee involved, and the Committee
  will submit it to the Department Head of the
  employee.
    "The Department Head shall advise the Workmen's
  Committee in writing within five (5) days, Saturdays,
  Sundays and holidays excluded, of his decision in
  regard to the complaint.
    "(c) If the grievance is not satisfactorily
  adjusted, the Workmen's Committee shall, within ten
  (10) days, Saturdays, Sundays, and holidays excluded
  following the receipt of the Department Head's
  decision, submit the matter in writing to the Plant
  Manager who shall render his decision as to the
  matter in writing within ten (10) days, Saturdays,
  Sundays, and holidays excluded, of receipt of the
  grievance."
  Section 2 of said Article provides that if the grievance is not adjusted satisfactorily through the procedure set forth in Section I of Article VII, the matter may be referred to an arbitration board consisting of three members. The section then sets forth the manner of the selection of the arbitrators and the procedure to be followed in the consideration by the board of arbitrators of the grievance.

J.W. Prince was an employee of defendant as a first-class rigger in the Mechanical Department. His immediate foreman was Frank Thurlkill.

On March 13, 1958, Maynard White, Acting President and Chairman of the Workmen's Committee of the plaintiff, made a complaint orally to the said Foreman to the effect that the employee had been unjustly discharged on March 11, 1958. The Foreman denied the grievance, and the same was referred to the Workmen's Committee of the plaintiff, and the grievance was reduced to writing in duplicate, signed by J.W. Prince, and was submitted to K.H. Burns, the defendant's Department Head.

On March 19, 1958, the answer of the said K.H. Burns to the grievance of the employee was delivered to the Workmen's Committee appointed by the plaintiff and acting for it under the provisions of Article VII of the contract. The answer of Burns, the defendant's Department Head, was: "Mr. Prince was discharged for refusing to follow instructions given by his Foreman."

On March 24, 1958, the plaintiff Union, by V.E. Henry, Recording Corresponding Secretary, wrote W.M. Carney, Plant Manager of defendant. The copy of the letter in the court file does not reflect that it was written under the letterhead of plaintiff. He advised Mr. Carney that the Foreman's answer was not satisfactory on the grievance filed by J.W. Prince, and "we now appeal to you for your decision on this matter and request a Committee meeting with you to discuss this Grievance on the earliest date possible at your convenience."

On April 1, 1958, Carney delivered to the plaintiff his reply to the letter of the Recording Corresponding Secretary of March 24, in which Mr. Carney said:

    "Our records indicate that the grievance of Mr.
  Prince was submitted to K.H. Burns, the head of the
  department in which Mr. Prince was working at the
  time of his discharge, by the Workmen's Committee,
  and the answer ...

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