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July 28, 1960

PHILADELPHIA DRESS JOINT BOARD OF the I.L.G.W.U. and The International Ladies' Garment Workers' Union

The opinion of the court was delivered by: DUSEN

This suit was instituted by the Philadelphia Dress Joint Board of the I.L.G.W.U. and The International Ladies' Garment Workers' Union against Sidele Fashions, Inc., to compel arbitration of a number of alleged disputes between the parties pursuant to Article 39 of a collective bargaining agreement between the parties (Exhibits A-D to Complaint). The defendant filed an Answer raising several defenses and the plaintiffs moved for judgment on the pleadings. The parties filed affidavits pertaining to the matter at the suggestion of the court. Consequently, the motion will be treated as one for summary judgment. See F.R.Civ.P. 12(c), 28 U.S.C.A. The court is of the opinion that there is no genuine issue as to any material fact and that the plaintiffs are entitled to a judgment as a matter of law. *fn1"

Section 3 of Article 39 of the collective bargaining agreement in question provides:

 'Section 3. Should the representatives of the Union and the Association fail to resolve any dispute, then all complaints, disputes or grievances arising between the parties hereto involving questions of interpretation or application of any clause of this agreement, or the relations between the parties and their respective members, shall be submitted to the Impartial Chairman, and his decision shall be binding upon the parties hereto.

 'Each case shall be considered on its merits and this agreement shall constitute the basis upon which the decision shall be rendered.'

 The Supreme Court has recently stated that:

 'The function of the court is very limited when the parties have agreed to submit all questions of contract interpretation to the arbitrator. It is then confined to ascertaining whether the party seeking arbitration is making a claim which on its face is governed by the contract. Whether the moving party is right or wrong is a question of contract interpretation for the arbitrator. In these circumstances the moving party should not be deprived of the arbitrator's judgment, when it was his judgment and all that it connotes that was bargained for.

 'The union claimed in this case that the company had violated a specific provision of the contract. The company took the position that it had not violated that clause. There was, therefore, a dispute between the parties as to 'the meaning, interpretation and application' of the collective bargaining agreement. Arbitration should have been ordered.' *fn2"

 The facts recited in the last paragraph quoted above describe the situation in the case at bar. *fn3"

 The defendant claims that the Impartial Chairman, though validly appointed, is not impartial. Accepting the allegation as true, it is not material. The defendant is bound by the selection made in accordance with the agreement it entered into. Sidele also asserts that certain provisions of the agreement, other than the arbitration provision, are illegal and that, therefore, the whole contract is unenforceable. This ignores the Conformity to Law-Saving Clause in the agreement (Article 42). See, also, Watkins v. Hudson Coal Co., 3 Cir., 1945, 151 F.2d 311, and Robert Lawrence Company v. Devonshire Fabrics, Inc., 2 Cir., 1959, 271 F.2d 402. *fn4" As to defendant's contention that the National Labor Relations Board has exclusive jurisdiction over this matter, see Independent Petroleum Workers of N.J. v. Esso Standard Oil Co., 3 Cir., 1956, 235 F.2d 401, 405. Sidele's objection that the claims are too vague may have some validity if addressed to the arbitrator, but they are sufficiently definite to enable the court to discharge its limited function, as outlined by the Supreme Court in United Steelworkers of America v. American Mfg. Co., supra, in view of the language in the arbitration provision.

 The defendant makes one argument which merits a fuller discussion than the others. It asserts that the union is not entitled to enforcement of the arbitration provision at this time because it has not processed the claims in question through the three-step grievance procedure set up in Article 39 of the collective bargaining agreement but has ignored two of the steps and taken them directly to the arbitrator. The plaintiffs admit this but assert that Sidele's resignation from the Philadelphia Waist & Dress Manufacturers Association made compliance impossible and, furthermore, defendant's attitude indicated that, even if possible, such steps would have been futile. The agreement does not require the parties to do an impossible or useless act. Therefore, the plaintiffs conclude, noncompliance is excused and they are entitled to immediate arbitration.

 The Supreme Court stated that the standard arbitration clause providing for arbitration of disputes involving the interpretation and application of the collective bargaining agreement does not give the arbitrator jurisdiction over questions concerning the meaning of the arbitration provision in that agreement. In United Steelworkers of America v. Warrior & Gulf Co., supra, the court said:

 'It is clear that under both the agreement in this case and that involved in American Manufacturing Co., (80 S. Ct. 1343) the question of arbitrability is for the courts to decide. Cf. Cox, Reflections Upon Labor Arbitration, 72 Harv.L.Rev. 1482, 1508-1509. Where the assertion by the claimant is that the parties excluded from court determination not merely the decision of the merits of the grievance but also the question of its arbitrability, vesting power to make both decisions in the arbitrator, the claimant must bear the burden ...

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