*1 un said that Board has stat waived held to have not be ion will “clear utory the waiver unless g., California E. unmistakable.” Co., 101 N.L.R.B. Cement Portland Co., Furniture Heokman (1952); Tide 631, 632 101 N.L.R.B. Co., N.L.R.B. Water Associated v. Item NLRB Cir.), (5th 958-959 73,100 denied, 76 S.Ct. agreement L.Ed. 746 methods, means processes and
“the exclusively solely manufacturing Corporation” is responsibility certainly and unmistakable” not a “clear bargain
waiver of the union’s change in methods' amounts contracting Bear Fafnir out.
fact
ing Co.,
Cf.
n.1, 337,
takable” that “the manufacturing” park include means of
ing manufactured cars. reverse the Board’s must therefore
order.
Reversed. Washington, Ballard, D. Frederick A. Birming- McFadden, , H. and Frank C. Ala.,
ham,
bar of
by spe-
Alabama,
vice,
pro hac
court,
appellant.
leave of
cial
Washington, D.
Spriggs,
Kahl K.
BLOUNT
CONSTRUCTION
BROTHERS
Myers,
whom John F.
with
COMPANY,
Appellant,
C., was
Joseph TROITINO, doing business as
Senior
Before Wilbur K.
Company,
Troitino Construction
Judge,
and Appellee.
No. 19889.
MILLER,
Circuit
WILBUR
United States Court of
Judge.
appellant,
1960, the
On November
Dec.
Brothers Construction
Blount
Decided Feb.
into a contract with
entered
of which
the terms
Columbia
Supplemental Opinion Rehearing
portion
to construct Aug. 21, development
highway and railroad-trestle
Washington
known
in southwest
Freeway.
On
Southwest
by Blount
into
entered
a subcontract was
*2
appellee,
Troitino Construction stood them.
It also
affidavits
attached
employees purporting
in which the latter
to of certain
show
to
furnish
install
the stonework re-
and
the contracts involved interstate
quired by
prime
contract.
commerce.
by
Apparently
supplemental
motion
construction called
this
Judge
prime
Au-
contract and subcontract was com-
before
Jones on
gust
pleted,
by
26, 1965,
accepted
a
and
the District
but was continued for
of
paid
Columbia,
showing by
price
on
which
the contract
further
Blount.
It came
hearing
May 24,
28, 1965,
to
Blount. After
before
and
October
Judge
who,
hearing
McGarraghy,
Troitino sued Blount in the
United
argument,
States
denied
District Court for the District
the motion on Novem-
of
$82,397.26,allegedly
Columbia for
ber
unpaid
balance for the
of
Blount filed on November
the subcontract and for certain extra
complaint
an answer to the
and a coun-
work.
day—
$300,000.
terclaim for
On the next
15, 1965,
Blount filed on June
November 16—Blount moved for rehear-
motion
directing
ing
for an order
Troitino
of
to arbi-
its motion to
disputes
stay.
trate “the
and
which have arisen
for a
The motion was denied
by Judge
McGarraghy
under the contract
them
between”
re-
November
“as
quired by
contract;
Article XIII1
Blount filed
On December
staying
proceedings
appeal
and
further
No-
herein
notice of
from
order of
pending
supplemental
issuance of
vember which
its
the arbitration
denied
award.” The motion was denied
motion.
Judge Youngdahl July 21, 1965, on the
considering
Before
the interest
grounds that the record did not show an ing arguments
con
of learned counsel
arbitration,
issue referable to
and did
cerning
appeal,
the merits of
must
show that
contract sued on in-
determine whether we have
volved a transaction in commerce within
indubitably
appealed
The order
of Section 2 of the Federal
interlocutory.
jurisdiction exists,
If
it
Arbitration Act. The
denial re-
must arise from 28 U.S.C. §
prejudice
cited that
it
“without
which is as follows:
the defendant
make a
[Blount]
new
“(a)
containing
appeals
proper
complete
courts
shall
and
jurisdiction
legal
appeals
factual and
from:
foundation.”
August 3, 1965,
Blount filed on
“(1) Interlocutory
a mem-
dis-
orders of the
orandum
“Supplemental
denominated
States,
trict
courts
the United
Agreement
Motion to Enforce
for Arbi-
for the
Stay
tration and for
Further
Zone,
Pro-
the District
Canal
ceedings Pending Arbitration,”
Guam,
to which
Court of
and
Virgin
attached an affidavit
Islands,
judges
counsel in
or
which he
modify-
stated
as he
thereof,, granting, continuing,
issues
under-
Article XIII of the subcontract
is as fol
third arbitrator be named
the Amer-
:
lows
ican Arbitration Association.
any question
party
“If
of fact shall arise un-
an arbitrator
either
to name
fails
pro-
requested
der
days
this contract and
there
within three
do
party
vision for settlement
in the General
then the other
shall have
Contract,
party
may
request
then either
hereto
American
Arbitra-
demand reference to a
to name
arbitrator
Association
arbitration,
failing
represent
party
board of
consist of
name
so
person
by Contractor,
selected
and one
one. The written
two
decision
person
by Subcontractor,
binding
selected
Board
of this
shall be
third;
parties
party
these two to select a
and in case
on both
Each
hereto.
pay
expense
shall
these two
fail
to select a third
shall
one-half of the
of such
days,
party
within three
either
hereto
reference.”
request
shall have the
Following
Opinion
Supplemental
injunctions,
dissolving
ing, refusing or
modify
Petition
refusing to
or
dissolve or
except
junctions,
direct review
Before
Wilbur
may
in the
Court.”
Judge
denying a
an order
settled that
Judges,
in Chambers.
*3
and a con-
motion to enforce arbitration
equivalent
stay
an
is not
comitant
CURIAM:
PER
refusing
injunction. Division
an
order
enough
original opinion we said
our
In
689,
Capital
U.S.
etc.
Transit
97
v.
aof
close
the existence
demonstrate
4,
App.D.C.
19
John
227 F.2d
jurisdiction.
respecting
our
question
Ferro,
Thompson
v.
Beacon Windows
colleagues
of the view
are
of our
Others
Inc.,
U.S.App.D.C.
366
232 F.2d
98
jurisdic-
least,
at
situations
in some
holding
(1956).
case,
the
In
latter
opinion had
our
After
will
lie.1
overruling
the
order
that
District Court
February
the
issued as
been
compel
not
a motion to
was
sought
rehearing which, not
appellant
order,
we said:
unnaturally
opposed
the
“Appellant
the
that
has not
claims
have reviewed the
Even
we
relief
seeks
in the nature of
he
respect
to rehear-
parties both with
mandatory
injunction
that
hence
urged.
originally
ing and as
appealable
the District Court’s order is
assumption
upon
proceed
now
We
(1948),
under
28
62
929
U.S.C.
Stat.
properly here.
From
the case
that
interlocutory
1292(1)
(1952),
an
§
it is obvious that
record
review
under
refusing
injunction.
alleging
damages
sought
appellee had
event
do not
this section
we
believe
appellant had
The
of contract.
breach
applicable.
not
The suit was
for
motion to
filed its counterclaim
junctive
sense,
relief in the traditional
agreement had in
specific
performance
nor
even for
argued and de-
form or other been
one
strictly
unique
speaking.
for
nied
each
several
”
* *
*
statutory remedy.
sought by
action
net effect of the
The
Company
also Lummus
v. Common-
appellant
the District Court would
in
Refining Company,
wealth
stay its
court
been to cause that
(2nd
1961).
80
Cir.
respecting
appellant’s
own
own hand
said,
counterclaim.
The
Court
in
recent
Cheese Ass’n v.
Switzerland
no
of discretion
We see
abuse
Market,
Horne’s
87
S.Ct.
part
de
in its
of the District
(1966):
issues of fact be re- ain
solved trial.
Since are not convinced that declining en- erred denying ap-
force arbitration and in
pellant’s ap- stay, motion for a the orders pealed from are
Affirmed.
The GENERAL TIRE AND RUBBER
COMPANY Swart, Appellants,
Gilbert H. BRENNER, J.
Edward Commissioner Patents, Appellee.
The GENERAL TIRE AND RUBBER al., Appellants, COMPANY et BRENNER,
Edward J. Commissioner of Patents, Appellee.
Nos. 20562.
Decided June
Petition for Denied July Beale, Washington,
Mr. Edward B. C., Trenor, with whom Mr. R. William D. was appellants.