grievance of any kind of an employee against the Company.'
Examining these provisions of the contract between the parties, it is clear that the present dispute between the parties involves a 'difference concerning * * * the interpretation or application' of the provisions of the collateral agreement on 'Management Prerogatives', and as such would be arbitrable under the terms of the collective bargaining agreement and prevailing law unless specifically excluded by the parties.
However, the contract does contain a specific exclusion. The contract provides that as a management prerogative 'the Company has the right to subcontract and designate the work to be performed by the Company and the places where it is to be performed, which right shall not be subject to arbitration.' Obviously this exclusion clause refers to two things, the right to subcontract work to other companies and the right to determine which of its divisions shall handle particular work. The right to subcontract work to other corporations is one thing while the right to designate and determine what work the Company shall do by itself and where, in view of all the divisions in which it might best do this work, is clearly another thing. Both these things clearly were stated in the agreement to be management prerogatives, not subject to arbitration. Moreover, the arbitration article of the agreement itself provides that the 'arbitrator * * * shall have no authority * * * to rule upon * * * management prerogatives.'
Although the Supreme Court has counseled us to resolve doubts as to arbitrability in the face of a vague exclusion clause in favor of arbitration,
it has likewise clearly stated that arbitration cannot be ordered where the parties have specifically excluded it. Atkinson v. Sinclair Refining Co., 370 U.S. 238, 82 S. Ct. 1318 (1962). This is such a case. On the undisputed facts in this record it cannot be held that the Company has bound itself to arbitrate this dispute over the location of production work.
Accordingly, summary judgment in favor of the Company will be entered. The fact that the Company has not seen fit to file a cross-motion for summary judgment does not preclude this court from entering such judgment on its own motion. American Auto Ins. Co. v. Indemnity Ins. Co., 108 F.Supp. 221 (E.D.Pa.1952) aff'd 228 F.2d 622 (3d Cir. 1956); Local 33, Int'l Hod Carriers Building and Common Laborers' Union v. Mason Tenders District Council, 291 F.2d 496, 505 (2d Cir. 1961).
And now, this 16th day of September, 1964, the motion of the defendants, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW, AFL-CIO) and Local 1069, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW, AFL-CIO), for summary judgment is denied.
It is further ordered that summary judgment be entered in favor of the plaintiff, Boeing Company, declaring that the dispute over location of certain production work sought to be arbitrated by the defendants is not arbitrable under the provisions of the collective bargaining agreement between the parties.