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.
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
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
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.
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.]