clearly demonstrates the intentions of the parties, evidence of prior negotiations and agreements tending to vary the terms of such writing will not be received.
We come then to the next reason assigned hereinbefore, namely: No damage has been shown by plaintiff to warrant the issuance of the injunctive processes of the Court.
It seems clear that in the arbitrator's award in the Smith case, the plan of February 1, 1959 was procedurally lacking in covering a situation like Smith's where he was the only engineer working under the merit reviewing supervisor Wolf. In the November 15, 1959 Plan, the company provided that the rater would use what general knowledge he possessed regarding engineers, while in the October 1, 1959 Plan the rater was by inference limited in his merit rating to his observations of the engineers under him.
This is exhibited in the following language:
'The rater obtains and reviews data on the performance of his engineers. His judgment must be based on observations of performance.'
The November 15, 1959 Plan provides (Chapter III):
'The rater obtains and reviews data on the performance of his engineers. In making these ratings his judgment is based on observations of performance. Raters will use any knowledge which they have of the performance of other engineers in making their judgments about an engineer.'
The record is absolutely devoid of any evidence that this modification will actually or even probably result in damage to the plaintiff-union or any substantial number of its members. The Court can see how such a change giving the rater the right of making such a comparison would, possibly, by injurious to an individual engineer, but, at the same time, the Court can see possible benefits resulting by such a comparison. The most that can be said for the plaintiff's position is that in the exercise of its judgment it prefers the October 1st plan. Is this sufficient to warrant the use of the injunctive processes of the Court? We think not.
'The basis of injunctive relief in federal courts has always been irreparable harm and inadequacy of legal remedies.' Beacon Theatres, Inc. v. Westover, 1959, 359 U.S. 500, 506, 79 S. Ct. 948, 950, 3 L. Ed. 2d 988.
It has become obvious to the district courts that to warrant the granting of an injunction on ground that irreparable injury is threatened, the injury contemplated must be real, not fancied; actual, not prospective; and, threatened, not imagined. Or to make it applicable to the facts, as the Court finds in the present matter, the must be an actual injury not a mere preference of which of two plans the union desires.
We come, therefore, to the final prayer of the complaint, namely, that the Court direct the Company to arbitrate the grievance filed with it on December 16, 1959, regarding the modification of the plan.
Since 1958 the Courts have almost uniformly held that the Court must determine as a preliminary matter whether the parties had contracted to refer the particular issue in dispute to arbitration.
Lodge No. 12, etc. v. Cameron Iron Works, 5 Cir., 1958, 257 F.2d 467, 470, certiorari denied 358 U.S. 880, 79 S. Ct. 120, 3 L. Ed. 2d 110:
'The courts have, with practical uniformity, held the question of arbitrability to be an issue for the courts -- that is, the courts decide if the particular grievance is arbitrable under the terms of the collective bargaining contract.'
'This is true even where the contract specifies that any controversy relating to the meaning or interpretation or application of the contract is arbitrable.'
'We consider the general rule to be that a dispute between labor and management is arbitrable where the dispute is specifically contracted to be arbitrable or generally where the contract expresses a broad arbitration clause.'
See, also, Refinery Employees Union, etc. v. Continental Oil Co., 5 Cir., 1959, 268 F.2d 447, 451, 452:
'When one of the parties needs the aid of a court, and asks the court for a decree ordering specific performance of a contract to arbitrate, we think that the court, before rendering such a decree, has the inescapable obligation to determine as a preliminary matter that the defendant has contracted to refer such issue to arbitration, and has broken this promise.'
In the present matter the contract of July 21, 1958, among other things, provides:
'This plan will be established by the Company and its provisions will not be subject to collective bargaining. However, any complaint or grievance of the Association with respect to evaluation of the performance of an individual employee will be subject to provisions of the grievance procedure.'
The July 2, 1959 agreement provides:
'The plan in its present form is not subject to collective bargaining and any revised provisions of the plan will not be subject to collective bargaining. However, any complaint or grievance of the Association with reference to evaluation of the performance of an individual employee will be subject to provisions of the grievance procedure.'
It is clear that one cannot be compelled to arbitrate a matter unless they have contracted under certain circumstances to do so. It is abundantly clear here that the defendant-company not only did not agree to arbitrate such a dispute but specifically agreed that such plan would not be subject to the collective bargaining procedures, i.e., grievance and arbitration.
For the reasons herein expressed, the action will be dismissed.
This opinion shall constitute findings of fact and conclusions of law as required by Rule 52, Federal Rules of Civil Procedure, 28 U.S.C.A., unless either counsel elects to present proposed findings and conclusions.
Counsel will prepare an appropriate order.
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