I dissent from the judgment and from the foregoing opinion.
As provided by Section 3 of Article V of the agreement executed by the parties as of March 1, 1956, and attached to the petition, all disputes or grievances "excepting wages" which could not be resolved by the parties might be submitted to arbitration by either party.
Under these circumstances if "vacation pay" constitutes "wages" a dispute or grievance involving same is not arbitrable as a matter of right. However, we are not necessarily *Page 129 concerned with whether vacation pay does or does not constitute wages in common parlance or even in general industrial custom and practice. Our concern is whether or not these contracting parties have agreed that "vacation pay" is included in the term "wages" as used in the arbitration clause hereinbefore referred to.
If the contract attached to the petition were admittedly the only agreement by and between the parties and if it could be construed without reference to any custom or practice there would exist no issue of fact to be determined and the trial court could then have properly decided, as a matter of law, by contractual interpretation and construction, whether vacation pay constituted wages under the arbitration clause.
However, although the defendant Union has admitted in its answer the existence of the agreement of March 1, 1956, it has not admitted this to be the sole pertinent agreement, and by paragraph 8 of the affidavit of Earl Kirkendall filed and offered in support of its motion for summary judgment it is stated that "it is the position of this Union that a genuine, bona fide dispute exists between the Union and the Company over the meaning and interpretation of all the provisions of Article VIII of the contract [the vacation pay article of the March 1, 1956, contract] supplemented by the customs, practices, and agreementsof the parties pursuant thereto." (Emphasis added.) The customs,practices and agreements of the parties do not appear in or annexed to the pleadings nor do they appear in any of the affidavits filed by the defendant Union or by the plaintiff in connection with the motion for summary judgment.
Defendant Union contending the existence of these customs, practices and agreements, with reference to vacation pay, and same not being in the record before the trial court, the defendant, itself, thus raised an issue of fact as to whether these customs, practices and agreements existed at all, and, if so, as to what they were. The presence of this issue of fact prevents a summary judgment, as it is provided, among other things, by Section 2311.041 (B), Revised Code:
"* * * Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, admissions of the genuineness of papers or documents, and affidavits, if any, show that there is no genuine issue as to any material *Page 130 fact and that the moving party is entitled to judgment as amatter of law. A summary judgment shall not be rendered unless it appears from the pleadings, depositions, answers to interrogatories, admissions of the genuineness of papers or documents, and affidavits, if any, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made;the party against whom the motion for summary judgment is madeis entitled to have such depositions, answers to interrogatories,admissions of the genuineness of papers or documents, andaffidavits construed most strongly in his favor. * * *" (Emphasis added.)
It is of no aid to defendant Union that the existence of this issue of fact appears in its own affidavit. It has been held in just such a situation that a summary judgment must be denied.Oliver, Admr., v. Kasza, 116 Ohio App. 398.
I cannot fathom how this court could conclude that "the customs, practices and agreements referred to, apply only to the computation of vacation pay and the eligibility of the employees to receive the same," and "have no relation to the question of whether vacation pay is wages nor do they refer to Article VI or wages," when none of these customs, practices and agreements is in our record.
For these reasons, and without expressing any opinion as to whether vacation pay herein constitutes wages for the purpose of arbitrability, I am of the opinion that the trial court committed error prejudicial to the appellant in rendering summary judgment in favor of defendant Union and in its separate judgment ordering arbitration by the defendant American Arbitration Association, that these judgments should be reversed, and the cause be remanded to the trial court for further proceedings. *Page 131