The opinion of the court was delivered by: SHERIDAN
This is a motion by defendants to dismiss the complaint for failure to state a claim upon which relief can be granted.
The action was begun to compel arbitration under Section 301 of the Labor-Management Relations Act of 1947, as amended, 29 U.S.C.A. § 185, and the Declaratory Judgment Act, as amended, 28 U.S.C.A. § 2201.
The complaint alleges that the dispute involved arose on February 2, 1966, when a walkout occurred among plaintiff's employees who were members of and represented by the defendant unions. The walkout ended on the same day it began. Shortly thereafter plaintiff informed defendants that one of the employees involved, John Matteo, participated in or was responsible for the strike. Plaintiff requested that the issue of Matteo's innocence or guilt with respect to his participation or responsibility be arbitrated before the company undertook disciplinary action. The defendants refused. Plaintiff therefore brought this action to compel arbitration.
Whether or not the company was bound to arbitrate the issue as to the time when disciplinary action must be taken is a matter to be determined by the court on the basis of the contract entered into by the parties. Atkinson v. Sinclair Refining Co., 1962, 370 U.S. 238, 8 L. Ed. 2d 462, 82 S. Ct. 1318; Local 490, United Rubber Workers v. Kirkhill Rubber Co., 9 Cir. 1966, 367 F.2d 956. In Boeing Co. v. International Union, UAW, 3 Cir. 1967, 370 F.2d 969, the court said:
" . . . Arbitration clauses, such as those usually contained in labor-management contracts, should be so construed as to effectuate congressional policy favoring the settlement of labor disputes. It was held in United Steelworkers of America v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582, 4 L. Ed. 2d 1409, 80 S. Ct. 1347 (1960): 'An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.' Despite this liberal rule of construction a reluctant party may not be compelled to submit a controversy to arbitration unless under a fair construction of the agreement he is bound to do . . . . Absent a contractual obligation to the contrary, a reluctant party is free to pursue any available legal remedy to redress its grievances." (Citations omitted.)
In Strauss v. Silvercup Bakers, Inc., 2 Cir. 1965, 353 F.2d 555, the court said:
" . . . The Supreme Court, although strongly favoring arbitration of labor disputes in its many recent decisions on the subject, has nevertheless maintained that '[the] duty to arbitrate being of contractual origin, a compulsory submission to arbitration cannot precede judicial determination that the collective bargaining agreement does in fact create such a duty.' . . . The courts have the duty to determine whether the reluctant party has breached his promise to arbitrate, . . . unless the contract clearly manifests an intention that arbitrability should be decided by the arbitrator. . . . The Supreme Court held that the question of arbitrability was for the courts, even though the arbitration clause covered 'any act or conduct or relation between the parties.' . . . Moreover, the juxtaposition of an 'all disputes' clause in a collective bargaining agreement with a clause excluding certain disputes from arbitration suggests that the parties intended to have questions concerning the scope of the exclusion decided in the first place not by the arbitrator, but by the courts.
"It is clear that a provision must be specific if it is to exclude a claim from arbitration, but it is not clear how specific the provision must be in order to have this effect. . . .
"We are aware of the danger that courts will become 'entangled in the construction of the substantive provisions of a labor agreement * * * through the back door of interpreting the arbitration clause * * *.' . . . But the inquiry here is directly connected with the extent of the duty to arbitrate, and does not touch upon the merits of the dispute. The ultimate issue is whether the court can say with positive assurance that the exclusionary clause applies to the dispute sought to be arbitrated. . . ."
With these principles in mind, the contentions of the parties can be considered. Neither plaintiff nor defendants has submitted matters outside the record which bear on the intent of the parties in entering into the agreement. Each side relies solely on the language of the agreement.
Although Article XI of the agreement includes a broad grievance and arbitration provision,
plaintiff urges that Article XII of the agreement dealing separately with "Strikes, Stoppages And Lockouts" specifically excludes from the grievance and arbitration procedure the alleged dispute which defendants maintain is subject to arbitration. Article XII A provides:
"Since the Agreement provides for an orderly method for the adjustment of disputes, strikes, stoppages and lockouts are prohibited. If, however, a strike or stoppage should occur, the Union will immediately, upon being informed by the Employer by telegram at the Union's office at Wilkes-Barre, Pennsylvania, order the workers to return to work. The Union further agrees that any employee or group of employees who participate in or are responsible for any unauthorized strike, boycott, slowdown, or work stoppage, shall be subject to disciplinary action, including discharge. Only the question of fact as to whether an employee ...