The opinion of the court was delivered by: LORD
Pursuant to § 301 of the Labor Management Relations Act of 1947, 61 Stat. 156, 29 U.S.C.A. § 185, and the Declaratory Judgments Act, 62 Stat. 964, 28 U.S.C.A. §§ 2201 and 2202 Cuneo Eastern Press, Inc. ('Employer') seeks a judicial determination of its rights under a collective bargaining agreement. Specifically, Employer seeks to permanently enjoin the defendant, Bookbinders and Bindery Women's Union, Local No. 2 and its President, Harold A. Schulz ('Union'), from submitting a dispute over a sheeting machine to 'final and binding' arbitration.
Presently before the Court for disposition is Union's motion for summary judgment. The record before the Court consists of a complaint, answer and Union's affidavit and exhibits filed in support of its motion. Upon oral argument the respective parties agreed that no factual issues were involved and that the Court might make an adjudication upon the present record.
On March 24, 1959, Union by letter to Employer claimed jurisdiction over the operation of the sheeting machine. Subsequent negotiations resulted in the Employer taking the position that the machine was not covered by the collective bargaining agreement and that the operation of the machine was being assigned to an employee represented by another union. Taking a contrary position, Union set about to arbitrate the matter in accordance with Article IX of the agreement entitled 'Settlement of Disputes.' In pursuance to that Article, Union by letters dated May 6, 1959 advised both the Employer and the permanent arbitrator, William E. Simkin, that it was submitting the matter to arbitration. Maintaining that the dispute was not an arbitrable issue, the Employer instituted the present action.
It is to be noted that arbitration under the agreement can be invoked upon the 'written request of either party' (Article IX, § 2) and the arbitrator can settle the controversy even if the other party 'fails to appear or to submit testimony' (Article IX, § 4). The respective parties to this action have agreed to maintain the status quo pending a final adjudication by this Court.
This Court has jurisdiction of the instant action by virtue of § 301 of the Labor Management Relations Act, 61 Stat. 156, 29 U.S.C.A. § 185. Textile Workers Union of America v. Lincoln Mills of Alabama, 1957, 353 U.S. 448, 77 S. Ct. 612, 1 L. Ed. 972. While the latter case involved the right of a union to enforce a contractual obligation to arbitrate a dispute, the fact that here the Employer seeks to prevent arbitration in no way derogates from the jurisdiction of this Court. For a discussion of this question see the opinion of Judge Wyzanski in New Bedford Defense Products Division, etc. v. Local No. 1113, D.C.D.Mass.1958, 160 F.Supp. 103, affirmed 1 Cir., 1958, 258 F.2d 522. See also Boston Mutual Life Ins. Co. v. Insurance Agents' International Union (AFL-CIO), 1 Cir., 1958, 258 F.2d 516; Armstrong-Norwalk Rubber Corp. v. Local Union No. 283, D.C.D.Conn.1958, 167 F.Supp. 817; American Stores Co. v. Johnston, D.C.S.D.N.Y.1959, 171 F.Supp. 275.
The issue raised in the instant matter is whether the plaintiff Employer has violated Article VI of the agreement by failing to submit to arbitration Union's claim that the work of operating the sheeting machine should be assigned to members of the Union.
Union asserts that the question of arbitrability under this particular agreement should be left to the arbitrator to determine. It must be noted here, however, that the question of whether a dispute is subject to arbitration (arbitrable) under the terms of a collective bargaining agreement is -- by the overwhelming weight of judicial authority -- for the court to determine in the first instance. Local No. 149, etc., v. General Electric Co., 1 Cir., 1957, 250 F.2d 922, certiorari denied 1957, 356 U.S. 938, 78 S. Ct. 780, 2 L. Ed. 2d 831; Engineers Association v. Sperry Gyroscope Co., 2 Cir., 1957, 251 F.2d 133; Lodge No. 12, etc. v. Cameron Iron Works, 5 Cir., 1958, 257 F.2d 467; United Steelworkers of America v. American Mfg. Co., 6 Cir., 1959, 264 F.2d 624. Of course, the parties to a collective bargaining agreement can make provision in their contract for a tribunal to determine the initial question of arbitrability. See International Union, etc. v. Westinghouse Electric Corp., 3 Cir., 1959, 268 F.2d 352, wherein the parties expressly provided for the court to determine arbitrability in the event of disagreement. Likewise, if the parties to a collective bargaining agreement have 'unequivocally expressed a desire that the arbitrators shall determine their own jurisdiction,' that issue will be withdrawn from the courts. American Stores Co. v. Johnson, D.C.S.D.N.Y.1959, 171 F.Supp. 275, 277, collecting cases.
The labor agreement under present consideration does not expressly give to the arbitrator jurisdiction to determine what issues are arbitrable in the first instance. Basically, the present agreement calls for arbitration of 'any controversy' relating to the 'interpretation or enforcement' of the agreement. Article IX, §§ 1 and 2. A somewhat similar provision has been held not to confer upon the arbitrator the authority to determine his own jurisdiction, i.e., the question of arbitrability. Lodge No. 12, etc. v. Cameron Iron Works, 5 Cir., 1958, 257 F.2d 467, 470. See also American Stores Co. v. Johnston, supra (171 F.Supp. 276), wherein a clause calling for arbitration of 'any differences or misunderstandings' was held not to confer the issue of arbitrability upon the arbitrator.
The issue of arbitrability depends upon an interpretation of the agreement. Article IX, 'Settlement of Disputes', provides for a three-stage grievance procedure, the last of which is submission to a named arbitrator whose decision is to be 'final and binding' upon the parties. As pertinent here, Article IX provides:
'1. If any controversy arises as to the interpretation or enforcement of this Agreement, work shall proceed in a normal manner while the controversy is being disposed of.
'2. Should any controversy arise between the Employer and the Union, * * * as to the construction to be placed upon the scale of wages attached hereto, any clause of the Agreement, or alleged violation thereof, such differences or dispute shall be promptly settled in the following manner.' (Emphasis supplied.)
Article VI, entitled 'Complement of Employees', after designating the employee complement on specific types of machines, provides in § 11:
'In the event of the introduction of new processes or new machinery, the complement of men required and other conditions of work shall be tentatively determined by mutual agreement before operation, and after a trial period mutually agreed upon those matters shall be finally determined. In determining the complement of men and other working conditions, it is agreed that recognition shall be given to the practices already established in other union plants throughout the country where such processes or machinery are already in use and it is further agreed that the complement of men and other conditions of work shall be determined so as not to place the Employer in an unfavorable competitive position as compared to the ...