(dissenting):
Plaintiffs (collectively, the “Union”) appeal from a judgment dismissing the complaint on the merits, and from an order denying motions to reopen the judgment, to reargue the law, to reconsider the judgment and for a trial. The judgment was based upon the denial of the Union’s motion for summary judgment and the granting of summary judgment in favor of defendant, The Bridgeport Gas Company (the “Company”).
The litigation was initiated by a petition by the Union to compel arbitration of an alleged grievance. The petition alleged, in substance, that the collective bargaining agreement between Union and Company provided for arbitration of unresolved differences between them; that the grievance arose out of the retirement of a veteran employee, William Hulton, for whose position the Company had failed to post a notice of vacancy; that pursuant to the agreement the Union had submitted the matter to the Rt. Rev. Msgr. Joseph F. Donnelly for arbitration but that the Company refused to participate therein. The Union then sought an order compelling arbitration.
The Company, in turn, claimed that some months prior to Hulton’s retirement on October 31, 1961 (he had been a collector of old bills and claims), it had decided to change its practices so that continuation of the existing number (3) of employees in this job classification was not warranted. However, it continued Hulton until his retirement dote but then determined that no vacancy existed because of lack of work. Consequently, the Company refused to post a notice of vacancy for the then non-existing (according to its managerial judgment) position.
The district court took the case on “pleadings, motions, affidavits and briefs” and after argument denied the Union’s summary judgment motion and, sua sponte, granted summary judgment in favor of the Company. Its decision was based upon five grounds, (1) the Company’s determination that no vacancy existed upon Hulton’s retirement because of a lack of work did not constitute a grievance within the terms of the agreement; (2) the dispute did not relate to “rates of pay, wages, hours of employment and other conditions of employment” and, hence, did not come within the scope of matters to be submitted to arbitration; (3) the dispute did re*385late to exclusive managerial functions; (4) the history of labor negotiations between Union and Company confirmed the understanding that it was management’s exclusive function to determine the nonexistence of a vacancy due to lack of work; and (5) that the Company’s position was supported by recent decisions.
The Union relies heavily upon the three Steelworkers eases in the Supreme Court1 and many post-Steelworkers decisions in this circuit. Naturally, there can be no disagreement with the fundamental proposition advanced in these cases that arbitration contributes to industrial peace and should be the means of settling disputes whenever possible. “Doubts should be resolved in favor of coverage.” United Steelworkers of America, A.F.L.-C.I.O. v. Warrior & Gulf Nav. Co., 363 U.S. 574, 583, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409 (1960). However, the Supreme Court has said that “arbitration is a matter of contract”; that “a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit,” Warrior & Gulf, supra, 363 U.S. at 582, 80 S.Ct. at 1352-1353, 4 L.Ed.2d 1409; and that “the issue of arbitrability is a question for the courts,” Drake Bakeries, Inc. v. Local 50, American Bakery and Confectionary Workers Intern. etc., 370 U.S. 254, 256, 82 S.Ct. 1346, 1348, 8 L.Ed.2d 274 (1962). Obviously then, not only cannot the facts and agreements in each case be ignored, they are controlling.
From the record here presented (affidavits, exhibits and collective bargaining agreements), a picture is revealed of a union-employer relationship expressed in collective bargaining agreements for some ten years. The 1954 agreement provided that “the right to relieve employees from duty because of lack of work is vested exclusively in the Company.” Although placed in a paragraph under the subheading “Layoffs Due to Conversion” [i. e., to natural gas], there was a provision that “The Company does not limit its right to retire without replacement employees eligible for retirement, * *
In the negotiations leading to the 1959 contract, the Union submitted a proposal that “In the event that a job becomes vacant due to retirement, * * * [and] the company does not fill such vacancy due to the lack of work * * *; the company must first meet with the Union Committee and present tangible evidence of reason for their action.” This proposal was not incorporated in the agreement. A provision sought by the Union to be placed in the 1960 contract that “No job shall be abolished regardless of the reason” was not inserted.
The 1961 agreement now in issue specifically provided (Art. I, Sec. 5): “A. The direction of the employed personnel, including * * * the right to relieve employees from duty because of lack of work is vested exclusively in the Company, * *
Appellant Union argues that there was no express provision excluding this alleged grievance from arbitration. Appellee Company claims that the contract specifically excluded the dispute in issue from arbitration. As to appellant’s argument, no draftsman no matter how skillful and imaginative could draft an agreement which listed every retained prerogative of management. As to appellee’s argument, appellee appears impliedly to concede that a history of the bargaining would show the intention of the parties and that “the courts have considered bargaining history as part of the ‘background which gave rise’ to the inclusion of specific language.”
The District Court did not conduct a trial or take oral testimony. It relied upon affidavits and the exhibits annexed thereto. Although there is no doubt that *386the court could grant summary judgment in favor of defendant Company despite the fact that no motion therefor was made, 6 Moore, Federal Practice, If 56.12 (2d ed. 1953); International Hod Carriers Bldg, and Common Laborers’ Union of America v. Mason Tenders Dist. Council, etc., 291 F.2d 496, 505 (2 Cir. 1960), nevertheless the Union should have been given the opportunity which it sought on its motion to reopen to present testimony as to what has been done concerning vacancies and the Company, in its turn, the opportunity to show the previous rejections of any limitations on management’s exclusive right to make its decision as to the future of any job made vacant due to retirement and not filled “due to lack of work or any other reason.” As the Supreme Court has said “arbitrability is a question for the courts.” The answer must come from the contract and the intention of the parties as disclosed therefrom and from the testimony of the parties. The many decisions cited by both parties were dependent upon the particular facts in each particular case. And so should be the situation here. Until this intention is determined these other cases allegedly authoritative cannot supply an interpretation of this agreement. Only by such procedure can the factual determination, indicated as essential by the Supreme Court in the Steelworkers cases, be satisfied.
The primary purpose of arbitration under employer-employee agreements is to settle disputes without resort to the courts where such an understanding actually exists' — not to force the creation of any such understanding as do the majority here. Thus, if the Union should decide that it would prefer to have the Company scrap the machines in its accounting department and substitute twenty new employees to make the entries long-hand in large books in the manner of the 1890’s, it would seem as logical to submit such a demand for determination to the arbitrator as to say that he is to decide how the company is to run its bill collection department. I would require a more definite expression of the contractual intention of the parties before surrendering the managerial functions of the Company’s president and board of directors to an ai'bitrator. If this be the true intention of the parties (and I find no such intention self-evident from the written agreement before us) I would wish to see it developed by further proof together with proof that the arbitrator, whether he be monsignor or professor, had enough time away from the diocese or the classroom to become conversant with the current problems attendant to the proper management of the Bridgeport Gas Company and to render the services to which the consumers and the Public Utilities Commission are entitled from the Company’s management.
Accordingly, I would reverse the judgment below and remand the action for the taking of oral testimony and the filing of appropriate findings and conclusions of law based thereon. Cf. Central Aviation & Marine Corp. v. International Union etc., 319 F.2d 589 (2 Cir. 1963).
. United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960); United Steelworkers of America, A.F.L.-C.I.O. v. Warrior & Gulf Nav. Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960).