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October 13, 1977


The opinion of the court was delivered by: BECHTLE


 Presently before the Court is the motion of defendant D. J. McNichol Company ("McNichol") for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The jurisdiction of this Court is based upon Section 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185 (1970).

 Defendant McNichol is a contract carrier whose sole customer is the A & P Company. From March 31, 1971, to July 12, 1974, plaintiff Robert Brennan ("Brennan") regularly operated a truck owned by McNichol in Delaware County, Pennsylvania. On or about July 12, 1974, Brennan delivered various goods and supplies to an A & P Company store in Llanerch, Pennsylvania. During the delivery, the manager of the store notified the Haverford Township Police Department that he observed Brennan attempting to steal merchandise from the shipment. The police stopped Brennan while he was driving away from the store and found the missing goods in the cab of his truck. Following his arrest on a charge of theft by unlawful taking, *fn1" Brennan was discharged by McNichol from his position as a truck driver.

 In his complaint, Brennan states that he, the Union and McNichol orally agreed soon after the July 12, 1974, arrest to waive the grievance procedure outlined in Article 8. [ See complaint at P 13.] The essence of the alleged agreement was that the outcome of the pending criminal proceedings in the Delaware County Common Pleas Court would be dispositive of the matter of Brennan's reinstatement. Specifically, Brennan asserts that it was understood that a verdict of guilty in the Criminal Court "would operate to terminate the plaintiff's employment with the Defendant-company and no grievance would be instituted or pursued on plaintiff's behalf." [ See complaint at P 14.] Likewise, an acquittal of the criminal charges "would automatically cause Plaintiff to be reinstated to his position as a truck driver with all back pay, rights and privileges to July 12, 1974." [ See complaint at P 15.]

 All criminal charges were dismissed against Brennan on July 18, 1975, by a jury verdict of "Not Guilty." Shortly after his acquittal, Brennan applied to McNichol for reinstatement pursuant to the alleged oral agreement. When his application for reinstatement was denied by McNichol, Brennan requested his Union representative to initiate proceedings *fn3" under the "Grievance and Arbitration Procedure" of Article 8 of the MFA. *fn4" The FELR Joint Board decision of July 10, 1975, regarding Brennan's discharge was deadlocked. The unsettled matter was then submitted to a disinterested arbitrator who, on November 25, 1975, sustained the discharge and dismissed the Union's grievance.

 In support of its motion for summary judgment, McNichol argues that (1) the decision of the arbitrator is res judicata and bars prosecution of the instant lawsuit; (2) principles of labor law favoring arbitration require that plaintiff's suit be barred; and (3) any oral agreement made by McNichol to reinstate Brennan if he were acquitted is null and void by virtue of the "Extra Contract Agreement" clause in the collective bargaining agreement.

 To prevail upon its motion for summary judgment, McNichol must conclusively demonstrate to the Court that there is no genuine issue as to any material fact and that it is entitled to a judgment in its favor as a matter of law. *fn5" Barron v. Honeywell, Inc., Micro Switch Div., 69 F.R.D. 390, 391 (E.D.Pa. 1975); see Saaybe v. Penn Central Trans. Co., 438 F. Supp. 65, Slip Op. at 4 (E.D.Pa., July 20, 1977). Inferences to be drawn from the underlying facts contained in the movant's materials "must be viewed in the light most favorable to the party opposing the motion." Adickes v. S. H. Kress and Co., 398 U.S. 144, 158-159, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970), citing U.S. v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962). This liberal construction by the Court provides the opposing party the benefit of all reasonable doubts and inferences in determining whether a genuine issue exists in fact which should be preserved for trial. Barron v. Honeywell, Inc., Micro Switch Div., supra, 69 F.R.D. at 391-392; Saaybe v. Penn Central Trans. Co., supra, Slip Op. at 4. Once the proponent of the motion demonstrates the absence of a genuine issue of material fact, the burden shifts to the opponent to present countervailing evidence, by affidavits *fn6" or otherwise, to show the existence of such issues. Adickes v. S. H. Kress and Co., supra, 398 U.S. at 160, n.22; Saaybe v. Penn Central Trans. Co., supra, Slip Op. at 4.

 Taking McNichol's last argument first, we find that the specific language of the collective bargaining agreement does not automatically render any oral agreement between the parties null and void. In addition to its emphatic denial of the existence of any oral agreement between the parties, McNichol argues that the MFA *fn7" bars enforcement, since the alleged oral modification: (1) conflicts with the "Arbitration and Grievance Procedure" of Article 8 [ see note 4 supra ]; and (2) cannot exist without the knowledge or agreement of the FELR. *fn8"

 In response, Brennan argues that, notwithstanding Articles 6 and 28 of the MFA, Article 8 allows the parties to formulate oral agreements to resolve grievances. Specifically, Brennan claims that the July, 1974, meeting and resultant oral agreement to await the outcome of Brennan's criminal trial was a "mutually satisfactory solution" within the meaning of Step 1 of the grievance procedure. [ See note 4 supra.] In support of his argument, Brennan submitted the affidavit of William O'Farrell, Business Agent and Vice-President of Teamsters Local No. 500, which states, in pertinent part:

It is routine for Union and Employers, including Defendant, to enter into oral agreements in cases involving grievances, suspension and discharge, and this agreement pertaining to Robert Brennan was not unusual. [Affidavit of William O'Farrell.]

 The affidavit further states that Local No. 500 did not notify the designated representative of FELR of its intention to pursue the subsequent steps of the grievance-arbitration procedure because of the terms of the oral agreement to abide by the decision of the Delaware County Criminal Court. [Affidavit of William O'Farrell.]

 By their language, Articles 6, 8 and 28 of the MFA are not mutually exclusive and independent portions of the ...

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