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SPERRY SYS. MGMT. DIV. OF SPERRY DIV. v. ENGINEERS

February 27, 1974

Sperry Systems Management Division of Sperry Division, Sperry Rand Corporation, Plaintiff
v.
Engineers Union, International Union of Electrical, Radio and Machine Workers, AFL-CIO, CLC, Defendant


Bauman, D.J.


The opinion of the court was delivered by: BAUMAN

BAUMAN, D.J.:

Plaintiff, the Sperry Systems Management Division of the Sperry Rand Corporation (hereinafter referred to as "Sperry") sues, pursuant to Section 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185, for an order staying and enjoining arbitration concerning Sperry's right to permit employees of its subcontractors to enter its plant, work alongside its employees, and utilize its equipment. Defendant Engineers Union (hereinafter "the Union") has counterclaimed for an order compelling arbitration pursuant to the terms of the collective bargaining agreement. *fn1"

 Both parties now seek summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.

 I.

 Before proceeding to a disposition of these motions, I feel constrained to discuss the basis for jurisdiction invoked here.

 In 1957 the Supreme Court held that federal district courts are possessed of jurisdiction under Section 301 of the Labor Management Relations Act to entertain suits brought to compel arbitration under an existing labor contract. Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 1 L. Ed. 2d 972, 77 S. Ct. 912 (1957). The case before me presents the other side of the coin; an action to prevent arbitration. Although some courts have held that the language of § 301 does not confer such jurisdiction, *fn2" the prevailing view is clearly otherwise. See Black-Clawson, Inc. v. International Association of Machinists, 313 F.2d 179 (2d Cir. 1962) and the cases collected therein. *fn3" Clearly there is no question that the Union could have initially proceeded under § 301 by an action to compel arbitration. In this day and age it is inconceivable that Congress intended for jurisdiction to depend on the results of a footrace to the courthouse door. The same ultimate questions are involved whether the complaint alleges a "violation" of the contract and requests arbitration or whether it asserts "compliance" and seeks to enjoin improper demands for arbitration. Black-Clawson Co., Inc. v. International Association of Machinists, supra; Application of Contessa Lingerie, Inc., 227 F. Supp. 37 (S.D.N.Y. 1964).

 The court's jurisdiction has, in my view, been properly invoked, and I therefore proceed to the merits.

 II.

 The material facts are not disputed. In the fall of 1971 Sperry was awarded a contract by the City of Atlanta, Georgia for the design and implementation of a traffic control system. Sperry selected Industrial Programming Incorporated (hereinafter referred to as "IPI") as the subcontractor responsible for designing the computer programs for the regulation of traffic signals in that city. While it may have had employees of its own who were qualified to complete such work, Sperry, for perfectly valid cost and scheduling reasons, elected to subcontract. *fn4" This resulted in several IPI employees working alongside Sperry employees in its Great Neck plant.

 In May 1972 the Union submitted to Sperry a document entitled "Statement of Grievance" and numbered 72-31. The grievance stated:

 
"The Company has undermined the Union as the Bargaining Agent and the job security and advancement of its members by bringing non-Sperry engineering personnel into the plant to perform bargaining unit work.
 
"The Union demands that the Company place the above work into the Bargaining Unit or immediately withdraw the above personnel from the Sperry premises."

 Upon receipt, Sperry informed the Union that such matters were not "grievable or arbitrable" under the collective bargaining agreement, and therefore Sperry would not process the grievance. *fn5" Some three months later, Sperry received a notice that the Union had submitted the Statement of Grievance to arbitration. *fn6" Sperry responded by commencing the instant suit. Its core contention is ...


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