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April 19, 1972

International Union of District 50, United Mine Workers of America et al., Plaintiffs
James Julian, Inc., Defendant

Herman, D. J.

The opinion of the court was delivered by: HERMAN


 This matter is before the court on a complaint of the union, an answer by the employer, and a motion by the plaintiff for a summary judgment.

 The action arises under Section 301 of the Labor-Management Relations Act of 1947 (29 U.S.C. § 185) giving this court jurisdiction; and venue is properly laid in the Middle District of Pennsylvania, the defendant being engaged in business in Scranton, Pennsylvania.

 The complaint alleges in substance that the parties entered into a collective bargaining contract which was in effect during the time in which the events giving rise to this action occurred; that on September 17, 1968 one Anthony Milano, an employee of defendant company, was unjustly discharged; that pursuant to Article X of the collective bargaining contract entitled, "Grievances" an arbiter was appointed who held two hearings and rendered two "decisions and awards"; that the arbiter awarded grievant Milano the sum of $2500; that on February 23, 1970 the defendant filed with the arbiter a motion with supporting arguments seeking a review and reversal of the second award which motion was denied by the arbiter on February 25, 1970; that plaintiffs have continuously requested defendant to comply with the award but that it has failed to do so. Plaintiff asks that defendant be directed to comply with the award and pay costs of the proceeding and attorney's fees.

 Defendant's answer while it denies certain averments in the complaint, acknowledges that only two of its denials are material to the issues here involved; namely (1) it denies that Milano was unjustly discharged, and (2) it further denies that the first award of the arbiter awarded any damages to grievant and further avers that defendant did not agree "to reopening of said decision" and therefore denies "that the arbitrator had any jurisdiction, authority or power to reverse his decision denying back pay to the grievant."

 We are faced first with the problem of what this court should do under the Labor-Management Relations Act of 1947 when, pursuant to that act, the parties have entered into a collective bargaining contract which provides fully and adequately for the arbitration of grievances *fn1" and the grievance here involved was duly submitted to arbitration. The second problem concerns the propriety of granting the motion for summary judgment when defendant contends that by its defense it has raised "genuine issues as to material facts."

 We begin with § 301 of the Labor-Management Relations Act of 1947 which provides, in pertinent part, that "suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce . . . may be brought in any district court of the United States having jurisdiction of the parties . . ." 29 U.S.C. § 185(a).

 In Textile Workers v. Lincoln Mills, 353 U.S. 448, 1 L. Ed. 2d 972, 77 S. Ct. 912 (1957) the Supreme Court in an action by a union to compel arbitration under a collective bargaining contract which provided for such arbitration, held that it was proper for a district court to decree specific performance of the agreement to arbitrate under § 301 of the act and that the substantive law to be applied is federal law but that state law if compatible with the purpose of § 301 might be resorted to in order to find the rule that will best effectuate the federal policy.

  This circuit, in Ass'n of Westinghouse Salaried Employees v. Westinghouse Elec. Corp., 210 F.2d 623, 625 (3d Cir. 1954), had held that § 301(a) is a grant of "federal-question jurisdiction and thus creates a federal, substantive right."

 This brings us to the agreement in issue here. There is no dispute concerning its application to the facts of this case. Indeed, the dispute was referred by both parties to arbitration before a neutral arbiter who, thereafter, held two hearings at both of which the company and the union were represented and at which each presumably presented evidence. While the company contends in its memorandum that the second arbitration hearing was held to litigate a completely different issue raised by "another Anthony Milano grievance," its answer to the complaint does not raise this issue *fn2" and we are inclined to believe from a fair reading of the two opinions and awards of the arbiter that he was considering at both hearings the same general grievance.

 The defendant's real contention seems to be that once having rendered an opinion and award the arbiter cannot thereafter hold another hearing and make a new award unless both parties agree to this procedure.

 We do not believe that both parties needed to agree to the procedure followed here, but even if such agreement were necessary (and not found in the record); nevertheless, this court should not pass on the matter, but that question should have been (if it was not) raised before the arbiter.

 It will be noted that the grievance section of the collective bargaining agreement provides, in part, in Sec. 1 of Article X, that if "differences arise as to the meaning and application3 of the provisions of . . . [the] Agreement, or . . . [if] differences arise about matters not specifically mentioned in . . . [the] ...

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