Before BIGGS, Chief Judge, GANEY, Circuit Judge, and NEALON, District Judge.
GANEY, C.J.: Plaintiff brought an action under § 301(a) of the National Labor Management Relations Act, 29 U.S.C.A. § 185(a), for breach of an alleged labor agreement. The District Court granted defendant's motion to dismiss the action on the ground that there was no such agreement existing between the parties. Plaintiff appealed.
The complaint, filed October 16, 1961, avers: Plaintiff, Roadway Express, Inc., is a common carrier for hire and maintains a number of trucks and freight terminals in many areas throughout the United States, and is engaged in an industry affecting interstate commerce. Defendant, General Teamsters, Chauffeurs and Helpers Union, Local 249, an affiliate of International Brotherhood of Teamsters, Chauffeurs and Helpers of America, who is the bargaining agent for its members who work in the Western District of Pennsylvania. On or about June 1, 1961, Local 249 and Roadway entered into a collective bargaining agreement covering the wages, hours of work and other terms and conditions of employment for approximately 13 persons employed at Roadway's Pittsburgh, Pennsylvania terminal. By its terms this agreement became effective June 1, 1961, and is in full force and effect up to January 31, 1964. It provides that the parties to the agreement will not resort to strikes, lockouts, tie-ups or legal proceedings before using all possible means of settling any controversy that might arise. Despite this latter provision, at approximately 12:01 a.m. on August 1, 1961, members of Local 249 conducted a work stoppage at Roadway's Pittsburgh terminal in direct violation of the agreement without resorting to the grievance procedure set forth therein. By reason of the work stoppage and attendant picketing, Roadway was unable to operate its Pittsburgh terminal from August 9, 1961. The prayer for relief asks for damages from that date as a result of Local 249's action. Jurisdiction is based on § 301(a) of the Labor Management Relations Act, 29 U.S.C.A. § 185(a).
The answer filed by Local 249 alleged that a prior agreement between the parties expired May 31, 1961, that since then they had continued to negotiate a new t Local 249 conducted a work stoppage because of Roadway's failure to reach a new agreement. The answer incorporated a motion to dismiss on the ground that the complaint failed to state a claim under § 301 of the Act upon which relief can be granted, because no collective bargaining agreement has existed between Local 249 and Roadway since May 31, 1961.
Neither party requested a trial by jury.
On December 15, 1961, the setting of a date for hearing argument on the motion to dismiss was continued until further order of the District Court. Thereafter, the oral depositions of the following persons were taken by Local 249: G.A. Leach, vice-president of Roadway; Daniel M. Gunn, assistant vice-president of Roadway and director of labor relations; William A. Shuey, district manager of Roadway; Richard F. Ackerman, manager of Roadway's Pittsburgh terminal; and James H. Hutchinson, Jr., business manager of the Western Pennsylvania Motor Carriers Association. Argument was heard on the motion to dismiss on November 15, 1962, before the 1963 amendment to Rule 56 of the Civil Rules of Federal Procedure became effective. At this argument, Local 249 presented the transcripts of the oral depositions of the five persons mentioned above along with 49 exhibits. No depositions or affidavits were filed on behalf of Roadway. The record does not reveal what transpired at the argument.
The District Court, attaching importance to the fact that the written agreement was not signed by Local 249 and that negotiations on disputed issues continued after June 15, 1961, without the parties reaching an accord, and also to its determination that the resumption of work on June 15 had no probative force with respect to the existence of a contract because of the principle of "No contract, no work" is not practiced in the freight transportation by motor vehicle industry, concluded "as a matter of law" that the facts showed no contract existed. 211 F. Supp. 796 (W.D. Pa. 1962).
Although the motion to dismiss was implicitly filed under Rule 12(b)(6) of the Federal Rules of Civil Procedure, Roadway claims the District Court, in effect, treated the motion as having been made pursuant to Rule 56 for summary judgment, and that it erred in holding that as a matter of law no agreement existed between the parties. Rule 12(b) provides in part:
"If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56."
Matters outside the pleadings were presented to and not excluded by the District Court. Clearly such matters were considered by that court as a basis for its opinion.*fn1 However, Local 249 argues that the opinion plainly indicates that the District Court considered the motion to dismiss as having been filed under Rule 12 (b)(1) for lack of jurisdiction over the subject matter. It reminds us that Rule 12(d) requires the defenses enumerated under subdivision (b) shall be heard and determined before trial on application of any party, and in this case it did ask for such a hearing. In other words, Local 249's position is that the existence of a contract in an action brought pursuant to § 301 of the Act is a jurisdictional fact, the existence of which may be determined by a district court prior to trial.*fn2 We cannot agree. The complaint properly averred a cause of action under § 301 of the Act. Atkinson v. Sinclair Refining Co ., 370 U.S. 238, 241 (1962). Hence the District Court had jurisdiction over the claim. Whether such averments have merit or not is immaterial on the question of jurisdiction since that is determined from the face of the complaint. Hall v. Sperry Rand Gyroscope Co ., etc., 183 F. Supp. 891 (D.C.N.Y. 1960).
However, we will not infer that the ground for granting the motion was lack of jurisdiction over the subject matter, but will treat the Court's order as having been made pursuant to Rule 56.
In Bragen v. Hudson County News Company, Inc ., 278 F.2d 615, 617, this court set forth some of the well-settled principles applicable to summary judgment proceedings. One of the authorities cited in that case in Krieger v. Ownership Corporation, 270 F.2d 265 (C.A. 3, 1959), which states at p. 270:
"Documents filed in support of a motion for summary judgment are to be used to determine whether issues of fact exist and not to ...