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
Article I of the contract between plaintiff and defendant reads
"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
"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
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
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 ...